U.S. v. Saunders, s. 91-1501

• Decision Date: 15 April 1992
• Docket Number: 91-2515,Nos. 91-1501,s. 91-1501
• Citation: 957 F.2d 1488
• Parties: UNITED STATES of America, Appellee, v. Zachary I. SAUNDERS, a/k/a Isaac Jay Coleman, Appellant. UNITED STATES of America, Appellee, v. Isaac Jay COLEMAN, a/k/a Zachary I. Saunders, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1488

957 F.2d 1488

UNITED STATES of America, Appellee, v. Zachary I. SAUNDERS, a/k/a Isaac Jay Coleman, Appellant.

UNITED STATES of America, Appellee, v. Isaac Jay COLEMAN, a/k/a Zachary I. Saunders, Appellant.

Nos. 91-1501, 91-2515.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 18, 1991.

Decided March 2, 1992.

Rehearing and Rehearing En Banc Denied

April 15, 1992.

Andrea K. George, Minneapolis, Minn., argued, for appellant.

Isaac Jay Coleman, pro se.

Douglas R. Peterson, Minneapolis, Minn., argued (Thomas B. Heffelfinger, U.S. Atty., on brief), for appellee.

Before LAY, ^* Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Isaac Jay Coleman a/k/a Zachary I. Saunders appeals from a final judgment entered in the United States District Court ¹ for the District of Minnesota, upon a jury verdict, finding him guilty of six counts of social security number misuse in violation of 42 U.S.C. § 408(g)(2) (1988). ² The district court sentenced defendant to thirty-six months imprisonment, five years of supervised release and a special assessment of $300.00. For reversal, defendant argues that the district court erred in (1) finding that the search warrant was sufficiently particular, (2) departing upward in sentencing, (3) departing upward for the term of supervised release, and (4) calculating the dollar amount associated with defendant's fraud. Furthermore, defendant argues the district court's denial of his Fed.R.Crim.P. 41(e) motion for return of certain property was unreasonable. For the reasons discussed below, we affirm in part and reverse in part the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion.

I. FACTS

Defendant's real name is Isaac Jay Coleman, but throughout the trial below he went by the name "Zachary I. Saunders." Defendant has used various names and various social security numbers to obtain jobs and credit in different cities throughout the nation. Defendant, while in Chicago, met a woman named Brigid Randall. Defendant told Brigid Randall that he had attended Yale University and the Columbia Law School and was presently involved in the investment or merchant banking field and working out of London. ³ They began a relationship and defendant later moved to Minnesota where Brigid Randall resided. Defendant told Brigid Randall and her family that his name was Zachary Saunders and he had been in the Army and had a degree from Yale. To rent an apartment, defendant told the landlord that he was a visiting professor at the University of Minnesota Law School and provided a false name, false social security number, false bank information, and false employment history. After all of his rent checks were returned for insufficient funds (NSF), defendant was evicted and moved in with Brigid Randall and her daughter.

Defendant also opened up checking accounts at several banks, including Norwest Bank where Brigid Randall worked, using false social security numbers and other information. Many checks written on various accounts were returned NSF. Defendant also used false information to obtain a Minnesota driver's license and to obtain employment. Finally, defendant obtained and used an American Express Gold Card through a student application program. Defendant provided American Express with a copy of "his" University of Minnesota School of Law transcript, which turned out to be a doctored transcript of Brendan Randall, Brigid Randall's brother.

Maura Randall, Brigid Randall's sister, became suspicious of defendant because of the many discrepancies in statements he made describing himself and a check written to Brendan Randall. Following an investigation of defendant's bank records, a search warrant was executed on the residence of Brigid Randall where defendant resided, and defendant was placed under arrest.

On March 6, 1990, defendant was indicted and charged with five counts of social security number misuse. A second indictment was returned on April 4 adding an additional count in connection with the American Express Gold Card application. At trial, defendant represented himself with the Federal Public Defender's office acting as standby counsel. Defendant claimed at trial that he had worked as a legislative aide for a congressman and offered the privacy laws to justify his actions. The jury returned a verdict of guilty on all counts. Following trial, three sentencing hearings were held and defendant was sentenced to thirty-six months in prison and five years of supervised release. The district court also denied defendant's motion for return of some of the property seized in the search of Brigid Randall's residence pursuant to Fed.R.Crim.P. 41(e). This appeal followed. Defendant is represented by counsel on his direct appeal, but is appearing pro se for the purposes of his appeal of the district court's denial of his Rule 41(e) motion.

II. ANALYSIS

A. Particularity of Search Warrant

The search warrant for Brigid Randall's residence described the items to be seized as follows:

1. Identification documents, including, but not limited to driver's licenses, social security cards and supporting documents, bank documents and records, credit cards and supporting documentation, birth certificates, passports, and other indicia of residency and/or identity;

2. Address books, photographs, letters, notes, papers and other items that tend to identify co-defendants or co-conspirators;

3. Briefcases and other containers capable of storing the items described in Paragraphs 1 and 2;

4. Other material evidence of violations of 42 U.S.C. § 408, social security fraud, 18 U.S.C. § 1001, false statements.

Defendant claims that this description is too broad and does not describe the items to be seized with sufficient particularity, thus giving the government the authority to seize anything. In support of this argument, defendant highlights the fact that eleven items were returned to defendant because they were beyond the scope of the search warrant. Defendant further asserts that the search warrant could have been made more precise by listing the specific social security misuse for which probable cause existed.

We disagree and hold that the warrant described the items to be seized with sufficient particularly to be valid under the Fourth Amendment. The constitutional standard for the particularity of a search warrant is that the language must be sufficiently definite to enable the searcher to reasonably ascertain and identify the things authorized to be seized. Steele v. United States, 267 U.S. 498, 503-04, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). "This Court has applied a standard of 'practical accuracy' in determining whether a description is sufficiently precise to satisfy the requirements of the Fourth Amendment, recognizing that the degree of specificity required necessarily depends upon the circumstances of each particular case." United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985), citing United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir.1976). While it is true that a search warrant must be particular enough to avoid a "general, exploratory rummaging" of a person's belongings, Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), a search warrant involving a scheme to defraud is "sufficiently particular in its description of the items to be seized 'if it is as specific as the circumstances and nature of activity under investigation permit.' " United States v. Kail, 804 F.2d 441, 445 (8th Cir.1986), citing United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). See United States v. Frederickson, 846 F.2d 517, 519 (8th Cir.1988). ⁴

We believe that for an investigation of social security number misuse, the warrant at issue was sufficiently precise. Paragraph one identifies documents commonly used for identification and thus directly relevant to social security number misuse. Because defendant had a history of social security number misuse in several states, paragraph two refers to evidence of any co-conspirators. The investigators had information that defendant kept the contents of his briefcase hidden from view, and therefore, paragraph three was proper because the officers had probable cause to believe that it might contain evidence. The final paragraph allows the seizure of other evidence relating to social security fraud. Just because some of the items seized were subsequently returned to defendant, it does not mean that the warrant was not sufficiently particular. We hold that this warrant met the requirements of particularity and is therefore valid under the Fourth Amendment.

B. Upward Departure in Term of Imprisonment

The district court computed defendant's offense level as eight and his criminal history category as VI, thus resulting in a guideline sentence range of eighteen to twenty-four months imprisonment and two to three years of supervised release. The district court then departed upward, sentencing defendant to thirty-six months imprisonment and five years of supervised release.

Defendant argues that the district court improperly departed upward in sentencing him. The district court may depart from the applicable guideline range if it finds an aggravating or mitigating circumstance not adequately considered by the Sentencing Commission. 18 U.S.C.A. § 3553(b) (West Supp.1991). The district court's decision to depart upward is viewed under an abuse of discretion standard. United States v. Snover, 900 F.2d 1207, 1209 (8th Cir.1990) (Snover ); United States v. Carey, 898 F.2d 642, 645 (8th Cir.1990) (Carey ). A departure from the applicable guideline range is affirmed unless it is "unreasonable." 18 U.S.C.A. § 3742(e) (West Supp.1991). We must accept the district court's findings of fact unless they are clearly erroneous and...