U.S. v. Stefonek

• Decision Date: 03 June 1999
• Docket Number: 98-3398,98-3627,Nos. 98-3343,s. 98-3343
• Citation: 1999 WL 356407,179 F.3d 1030
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Barbara E. STEFONEK, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

179 F.3d 1030

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Barbara E. STEFONEK, Defendant-Appellant, Cross-Appellee.

Nos. 98-3343, 98-3398, 98-3627.

United States Court of Appeals Seventh Circuit.

Argued April 2, 1999.

Decided June 3, 1999.

Appeals from the United States District Court for the Eastern District of Wisconsin. No. 97 CR 50--Rudolph T. Randa, Judge.

Before Posner, Chief Judge, and Flaum and Easterbrook, Circuit Judges.

Posner, Chief Judge.

We have before us crossappeals from a judgment entered after a jury trial for Medicare fraud, tax fraud, and related federal crimes. The jury found the defendant, Barbara Stefonek, guilty and the judge sentenced her to serve 15 months in prison and to pay more than $20,000 in costs of prosecution. Her appeal challenges both her conviction and the order to pay. The government's appeal challenges the district judge's granting the defendant a fourlevel downward departure in her sentence.

Stefonek, a psychiatric nurse, joined another nurse, Edith Polzin, in creating a series of small businesses that provided nursing and related health care services to Medicare and Medicaid beneficiaries. Stefonek and Polzin placed their personal housekeepers on the payroll of their companies, listing them as maintenance workers, so that the government would reimburse the cost. The two women did not report the reimbursement as personal income to them, and they deducted the cost of the housekeepers from the reported taxable income of the companies. Stefonek also willfully caused the companies to fail to pay federal payroll taxes and then impeded the IRS's efforts to collect them. Her crimes inflicted a loss to the government of approximately $200,000. Although her appeal challenges the sufficiency of the government's evidence, that evidence was abundant; several other issues that she presents are similarly without sufficient merit to warrant discussion. Polzin was also prosecuted, but she pleaded guilty and was sentenced to six months of home confinement and has not appealed.

A multitude of business records were seized from the premises of Stefonek's companies pursuant to a search warrant. The application for the warrant, and an affidavit by federal investigators accompanying the application, specified the place to be searched and the documents to be seized; the warrant repeated the application's description of the place to be searched but not the description of the things to be seized. Stefonek claims that the search exceeded the bounds described in the application and warrant, and it did--the warrant listed only suites 101, 102, and 103 in the building in which her businesses were located and most of the evidence that she seeks to suppress was found in adjacent suite 104. But the match was close enough to satisfy the Fourth Amendment, United States v. Johnson, 26 F.3d 669, 694 (7th Cir.1994), especially since the door to the businesses' office said "Suite 101," and the division of the interior into separately numbered suites was obscure.

With respect to the things to be seized, however, all the warrant said was "evidence of crime." That description did not satisfy the Fourth Amendment's requirement that a search warrant "particularly describ[e] ... the things to be seized." E.g., United States v. George, 975 F.2d 72, 75-76 (2d Cir.1992); United States v. Morris, 977 F.2d 677, 682 (1st Cir.1992); United States v. Kow, 58 F.3d 423, 428-29 (9th Cir.1995); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment sec. 4.6 (3d ed.1996). So open-ended is the description that the warrant can only be described as a general warrant, and one of the purposes of the Fourth Amendment was to outlaw general warrants. E.g., Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

The government argues that since the affidavit which accompanied the application for the warrant contained an adequately particular description of the things to be seized, and since the search itself did not stray beyond the boundaries drawn by that description, "the search warrant was legally sufficient." We would agree if the warrant had incorporated the affidavit by reference, e.g., United States v. Jones, 54 F.3d 1285, 1289-92 (7th Cir.1995); United States v. McGrew, 122 F.3d 847 (9th Cir.1997); United States v. Shugart, 117 F.3d 838, 845 (5th Cir.1997); 2 LaFave, supra, sec. 4.6(a), pp. 558-59, but it didn't. The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer (in this case federal Magistrate Judge Gorence) asked to issue the warrant.

But we do not think that the consequence of the violation of the Fourth Amendment in this case should be the suppression of the evidence seized, which would in turn require that the defendant be retried and which might even preclude a retrial, since the documents that were seized may be essential to proving her guilt. The seizure caused no harm to the policy that underlies the requirement that a search warrant describe with particularity what is to be seized. That purpose, which searches pursuant to general warrants subvert, is to make sure that a search pursuant to a warrant does not invade the property and privacy of the individual whose premises are to be searched, and property seized, beyond what is necessary to achieve a valid law enforcement purpose as determined by a judicial officer. In effect the requirement of particularity backs up the requirement that warrants not issue except on probable cause by preventing the searching for and seizure of items that there is no probable cause to believe are either contraband or evidence of a crime. Maryland v. Garrison, supra, 480 U.S. at 84-85; United States v. Vitek Supply Corp., 144 F.3d 476, 480-81 (7th Cir.1998). It does this in two steps. The police or other law enforcement officer who is seeking the warrant must submit to the judicial officer a precise description of what is sought to be seized, so that the judicial officer can determine whether a valid law enforcement purpose would be served by the seizure of all items fitting the description. The description is then written into (or attached to or otherwise incorporated in) the warrant in order to make sure that the law enforcement officer who executes the warrant stays within the bounds set by the issuer.

The second step was omitted in this case, creating a danger that the executing officers would conduct a search, and seize items, that went beyond constitutional limits. Any evidence seized when the constitutional limits were exceeded would have to be suppressed, unless the officers were able to squeeze themselves into the exception to the exclusionary rule that the Supreme Court created in United States v. Leon, 468 U.S. 897 (1984), for unconstitutional searches conducted in good-faith reliance on a warrant. See also Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984); Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). That would be difficult to do here, because the defect in the warrant was patent, United States v. Leon, supra, 468 U.S. at 923, as in such cases as United States v. Kow, supra, 58 F.3d at 428-29; United States v. George, supra, 975 F.2d at 77; and United States v. Spilotro, 800 F.2d 959, 968 (9th Cir.1986).

Yet this actually is a stronger case than Leon against applying the exclusionary rule. In Leon the search caused actual damage to the interests protected by the Fourth Amendment; it permitted a search that went further than the amendment allows. The search in this case did not. It conformed to the particular description in the affidavit of the things to be seized, and there is no argument that in issuing the overbroad warrant the magistrate judge wanted the search to be even more limited than the description in the affidavit. (If so, she would have written the limitation into the warrant.) Among the agents who executed the search were the very agents who had prepared the application for the warrant, as in Massachusetts v. Sheppard, 468 U.S. at 989 n. 6; they knew the limited scope of the application; and, to repeat, they did not exceed the limits specified in that application and in the accompanying affidavit. The search would thus have been identical in scope, and exactly the same evidence would have been seized, had the warrant complied with the Constitution, which is to say, had the warrant repeated the application's description of the things to be seized. As in our own United States v. Jones, supra, 54 F.3d at 1292, and in United States v. Bianco, 998 F.2d 1112, 1117 (2d Cir.1993), the violation did no harm to any of the interests in privacy or property that the Fourth Amendment protects, and so exclusion of the evidence seized under the warrant would, just as in Leon and the cases following it, though for a different reason, have been a disproportionate sanction for the violation of the Fourth Amendment.

But before leaving the point we should consider whether we may have overlooked another purpose of the requirement of particularity, that of informing the person whose premises are to be searched of the scope of the search, so that he (or, as in this case, she) can monitor the search while it is being conducted and make sure it stays within bounds. The cases do mention this as being an additional purpose of the requirement. E.g., United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), overruled on other grounds in California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); United States v. Jones, supra, 54 F.3d at 1290; United States v. McGrew, supra, 122 F.3d at 850. If it is, however, it is of limited scope. Nothing in the Fourth Amendment or in the case law elaborating it or in the practice of searches pursuant to warrants...