U.S. v. Silva

• Decision Date: 23 January 2009
• Docket Number: No. 07-2320.,07-2320.
• Parties: UNITED STATES, Appellee, v. Maximano SILVA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

554 F.3d 13

UNITED STATES, Appellee, v. Maximano SILVA, Defendant, Appellant.

No. 07-2320.

United States Court of Appeals, First Circuit.

Heard December 3, 2008.

Decided January 23, 2009.

Jay Markell, for appellant.

Maximano Silva on brief pro se.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before BOUDIN, STAHL, and LIPEZ, Circuit Judges.

STAHL, Circuit Judge.

Defendant-Appellant Maximano Silva appeals both his conviction and sentence for conspiracy to obtain and obtaining controlled substances by fraud, health care fraud, identity theft, and aggravated identity theft. He argues, inter alia, that his conviction rested on evidence illegally obtained and that the district court improperly calculated his sentence. Finding no error, we affirm.

I. Facts and Procedural Background

The conduct underlying the charges occurred during two separate time periods, in 2000 and in 2004-2005. On May 31, 2000, police officers searched Silva's home pursuant to a warrant and discovered blank and forged prescription forms, pharmacy bags, receipts and pill bottles for various narcotics, pieces of identification in the names of person other than Silva, and other items that linked Silva to identity theft and drug fraud activities. The subsequent police investigation determined that Silva forged prescriptions for narcotics and provided his wife and a friend with fake identification to facilitate the filling of the fraudulent prescriptions.

Silva's 2004-2005 participation with his wife and his father in a "doctor shopping" conspiracy provided the basis for the remaining charges.¹ The scheme resulted in at least five doctors in different Massachusetts towns prescribing pain medications for Silva's father at the same time. Silva also forged several prescriptions for narcotics in the doctors' names, and Silva's father or wife filled the prescriptions at various pharmacies in Massachusetts.

On October 27, 2005, the grand jury returned a 24-count indictment charging Silva with the following crimes: conspiracy to obtain and obtaining controlled substances by fraud, in violation of 21 U.S.C. §§ 843(a)(3) and 846; health care fraud, in violation of 18 U.S.C. § 1347; identity theft in connection with obtaining controlled substances by fraud, in violation of 18 U.S.C. § 1028(a)(7); and aggravated identity theft in connection with making false statements, in violation of 18 U.S.C. § 1028A.

Silva filed a motion to suppress evidence seized in the May 31, 2000, search, asserting that the warrant was not based on probable cause. During two days of evidentiary hearings, Detective Charles Devlin ("Devlin") and Silva's brother Norman testified. Devlin's search warrant affidavit listed multiple sources of information that linked Silva to identity theft activities, including statements made by Norman.² On May 9, 2000, Norman complained to Devlin at the Hudson police station that Silva had accrued traffic tickets and medical bills in Norman's name. Norman explained that he had entered Silva's bedroom and seen a speeding ticket in his name, as well as a driver's license and phone bill of someone in Marlborough.³ Devlin asked Norman to bring the items to the station. Devlin later testified that he assumed Norman had taken the items upon first discovering them and did not realize Norman twice reentered Silva's bedroom. On May 9, Norman reentered Silva's room, returned to the station, and provided Devlin with a copy of the speeding ticket and medical bills. Devlin inquired about the driver's license and cell phone bill and upon learning that they were still at the family home, asked Norman to bring the documents so that the police could get a search warrant. Norman retrieved D'Angelo's driver's license and cell phone bill and on May 10, brought the items to the station.

On February 26, 2007, the court denied Silva's motion to suppress in a memorandum opinion. United States v. Silva, 502 F.Supp.2d 143 (D.Mass.2007). The court held Norman's first and second searches of Silva's bedroom (which yielded the traffic ticket in Norman's name) were private, noting Norman acted on his own initiative and for his own interests. The court found that the third search (yielding D'Angelo's driver's license and cell phone bill) was a government search violating the Fourth Amendment. Nonetheless, the district court found the search was valid under the independent source doctrine.

The nine-day jury trial began on March 19, 2007. Silva primarily argued that his sister and her husband, Paul Danforth ("Danforth"), who were arrested for passing forged prescriptions, committed the crimes. At trial, Silva introduced a July 2005 letter written by Danforth from jail to his wife that allegedly showed that the evidence seized in the May 2000 search belonged to the Danforths.⁴ Because the parties initially believed Danforth would be unavailable to testify, Silva conceded the letter was hearsay and sought to admit it as a statement against penal interest. When it became clear Danforth would testify, Silva instead requested admission of the letter as a prior inconsistent statement pursuant to Rule 613(b). At trial, Danforth denied ownership of the evidence seized from Silva's bedroom. Danforth admitted to writing part of the letter but denied writing the portion relevant here. The court instructed the jury to consider the letter only as evidence of Danforth's credibility; Silva did not object. After a handwriting expert's testimony, the court ruled the letter was admissible but could only be considered for whether it was consistent with Danforth's testimony; again, Silva did not object.

On March 29, 2007, the jury convicted Silva on all but two counts. The court sentenced Silva to 81 months in prison and 36 months of supervised release. This appeal followed.

II. Motion to Suppress

Silva claims the evidence obtained in the May 31, 2000, search should have been suppressed, arguing the authorizing warrant lacked probable cause absent evidence obtained in earlier, illegal searches. To support this claim, Silva asserts that his brother Norman acted as a government agent when Norman found and provided the police with various items. The district court rejected Silva's claim, finding the search warrant valid under the independent source doctrine.

We review the district court's legal conclusions in a denial of a motion to suppress de novo and its factual findings for clear error. United States v. Momoh, 427 F.3d 137, 140 (1st Cir.2005) (citations omitted). "We will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it." Id. (quoting United States v. Kornegay, 410 F.3d 89, 93 (1st Cir.2005) (internal quotation marks and citation omitted)). We review a finding that a cleansed affidavit was sufficient under the de novo review provisions set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), with deference to the inferences drawn from facts found by the lower court and law enforcement officers. United States v. Dessesaure, 429 F.3d 359, 367 (1st Cir. 2005) (citing United States v. Smith, 423 F.3d 25, 31 n. 4 (1st Cir.2005)).

Silva first argues Norman's second search of his bedroom violated the Fourth Amendment, contending that Devlin "instigated and counseled [it]." The Fourth Amendment's protection against unreasonable searches and seizures applies only to government action and not "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)). This circuit has identified the following three factors as potentially relevant in deciding whether a private party acts as a government agent: "the extent of the government's role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests." United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.1997). We will not find state action simply because the government has a stake in the outcome of a search. Compare id. (finding phone company's interest in preventing defrauding of customers to be primary purpose for search, even though it was "probably true that there would have been no search" had government not informed company of fraud) with Corngold v. United States, 367 F.2d 1, 5-6 (9th Cir.1966) (finding "joint endeavor" subject to Fourth Amendment where private party's purpose was solely to assist federal agents, and agents helped open boxes and inspect contents). See also United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981) (observing that presence of officers alone, without active role in encouraging or assisting private search, does not implicate Fourth Amendment, "especially where the private party has had a legitimate independent motivation for conducting the search").

In the present case, the district court correctly determined Norman did not act as a government agent in the second search. Although Devlin encouraged Norman to bring items to the police station, he did not participate in the search and exercised no control over the manner in which it was conducted. Indeed, Devlin did not tell Norman to search Silva's bedroom again because he believed Norman already possessed the items. Moreover, Norman's second search was motivated by his desire to clear his name; he returned to the station with only those items that were relevant to his concerns and that would exonerate him. Although Silva makes multiple arguments about inferences the lower court could have drawn from the evidence,⁵ he has failed to shown the court's...