U.S. v. Van Shutters

• Decision Date: 10 December 1998
• Docket Number: No. 97-5702,97-5702
• Citation: 163 F.3d 331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John VAN SHUTTERS, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 331

163 F.3d 331

UNITED STATES of America, Plaintiff-Appellee, v. John VAN SHUTTERS, II, Defendant-Appellant.

No. 97-5702.

United States Court of Appeals, Sixth Circuit.

Argued July 31, 1998.

Decided Dec. 10, 1998.

William Cohen, Asst. U.S. Attorney (argued), Sunny A. Koshy (briefed), Office of U.S. Attorney, Nashville, TN, for Plaintiff-Appellee.

Thomas W. Watson, Asst. F.P. Defender (argued and briefed), Federal Public Defender's Office, Nashville, TN, John Van Shutters, II, pro se, Dodge State Prison, Chester, GA, for Defendant-Appellant.

Before: JONES, RYAN, and MOORE, Circuit Judges.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Defendant-Appellant John Van Shutters, II, appeals his conviction and sentence for a variety of federal offenses arising out of a criminal scheme in which Shutters would "purchase" automobiles using counterfeit cashier's checks that he, himself, had manufactured. Shutters challenges his conviction on the grounds that evidence used against him at trial was the tainted product of three unconstitutional searches by the police, and that his conduct did not satisfy a jurisdictional element of the federal counterfeit securities statute, 18 U.S.C. § 513. Additionally, Shutters attacks his sentence on the grounds that the district court erroneously both enhanced his sentence for obstruction of justice and denied his request for a downward departure based upon acceptance of responsibility. For the reasons stated herein, we affirm both Shutters's conviction and his sentence.

I. Factual Background

On at least twelve occasions between March 1995 and February 1996, Shutters stole auto vehicles from their rightful owners in Tennessee and Georgia. Shutters's modus operandi was essentially the same in each theft. He would contact vehicle owners either at a dealership or by answering a classified newspaper advertisement. Using an alias and fake identification, Shutters would identify himself as a potential buyer of the vehicle. After "negotiations" with the vehicle owner, Shutters would consummate the "deal" by tendering a fraudulent cashier's check (ranging from $2,000 to $8,000) that he, himself, had manufactured. Shutters would then abscond with the vehicle, take it across state lines, and usually sell it to another buyer before the original owner determined that the check was counterfeit.

The nature of the counterfeit checks themselves, while not factually in dispute, is an issue in this appeal. Shutters based his forged creations on genuine cashier's checks issued by the First Tennessee Bank ("FTB"), a legitimate financial organization. Both the genuine and counterfeit checks bear the FTB logo, although on Shutters's checks, the logo is slightly larger and is placed on the upper left-hand corner as opposed to the center (where the genuine checks bear the logo). Both versions prominently display the name "First Tennessee Bank" next to the logo. Both versions proclaim that the bank is a member of the FDIC.

There are at least two readily apparent differences between FTB's checks and Shutters's forged creations. First, the genuine checks bear a notice that an indemnity bond will be required before replacing the cashier's check while, the counterfeit checks do not. Second, Shutters's checks bear a notation in smaller subscript identifying the issuer of the check as the "First Tennessee Bank Nashville." No such entity exists. There are several other minute differences between the genuine checks and the forged creations that are not readily noticeable or could only be detected through an audit by FTB's officers. ¹ Despite any differences between the checks, all of Shutters's victims accepted the counterfeit checks as real, and some FTB tellers even honored the forged checks when initially presented by the victims.

In mid-1995, the Tennessee Highway Patrol ("THP") commenced an investigation following several reports of stolen vehicles that had been "bought" by a man using counterfeit cashier's checks issued by the FTB. By early 1996, Shutters emerged as a suspect in the case.

On May 24, 1996, an Acworth, Georgia police officer noticed several stolen vehicles on the premises of 5721 Meadow Wood Drive ("Georgia Residence"), which belonged to Shutters's cousin, Linda Ballard. Shutters was staying in the Georgia Residence at the time. After brief questioning by the police, he initially denied his true identity and gave misleading information to the officers. However, one of his victims was on the scene and identified Shutters as the one who "bought" a vehicle with a counterfeit check. Stating that he wanted to "come clean," Shutters then disclosed his true identity and was immediately arrested, handcuffed, placed in the back of the patrol car, and given warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The police subsequently entered and searched the Georgia Residence, on the strength of a claimed consent to the search. As will be discussed infra, the appellant denies that he consented to the search of the Georgia Residence. What is certain is that the police recovered a quantity of incriminating evidence at the Georgia Residence, including papers and records relating to Shutters's "purchase" of a stolen vehicle, as well as fraudulent identification cards. Additionally, Linda Ballard directed the officers to a laminating machine and a Polaroid camera, both of which she attributed to Shutters. Moreover, Shutters made several statements that incriminated himself to the police during the course of the search.

Later that day at the police station, Shutters contacted Ballard by telephone and directed her to destroy other incriminating evidence relating to the instant case at the Georgia Residence, including paper stock which Shutters used to print his counterfeit checks, as well as computer programs that contained images of the counterfeit checks. Ballard refused to do so, and instead notified the police of the presence of the additional evidence at the Georgia Residence. The police then obtained a search warrant and seized the additional evidence.

Meanwhile, the THP had been active in the investigation against Shutters. Upon learning of his arrest in Georgia, the THP sought and obtained a warrant to search the premises located at 601 Sue Drive in Nashville ("Tennessee Residence"), which the THP believed to be occupied by Shutters. The THP seized numerous items similar to those recovered at the Georgia Residence, including a laminating machine, fraudulent identification cards, check printers, and other counterfeiting equipment.

After facing state charges in Georgia, Shutters was indicted in the United States District Court for the Middle District of Tennessee in the instant case on September 11, 1996. He was charged with seventeen federal offenses, including twelve counts of violating 18 U.S.C. § 513(a) (knowingly making and possessing counterfeit securities with the intent to deceive), one count of violating 18 U.S.C. § 1028(a)(1) (knowingly producing a false identification affecting interstate commerce), three counts of violating 18 U.S.C. § 2312 (transporting stolen vehicles in interstate commerce), and one count of violating 18 U.S.C. § 1028(a)(5) (possessing document-making implements with intent to produce false identification). Additionally, counts of aiding and abetting in violation of 18 U.S.C. § 2 were added to several of the charges.

Shutters filed a motion to suppress, contending that the two searches of the Georgia Residence, and the search of the Tennessee Residence violated his Fourth Amendment rights. After holding a hearing on the matter, the district court upheld all three searches. These rulings are being challenged in this appeal.

A jury trial was held on February 11-13, 1997. Convicted on all counts, Shutters was sentenced to 57 months in prison and three years of supervised release. Additionally, the district court ordered that he pay restitution in the amount of $30,457.69. This timely appeal followed.

II. The Searches of the Georgia Residence

We first review Shutters' challenges to the two searches of the Georgia Residence. Shutters disputes the police's account that he consented to the initial search of the Georgia Residence, arguing that the warrant obtained to return to the Georgia Residence was derived from tainted information resulting from the first unconstitutional search. Any evidence recovered from the second search, he insisted, should be suppressed as well. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is well-established that a warrantless search by law enforcement officials will be upheld if a detainee has voluntarily consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Bueno, 21 F.3d 120, 126 (6th Cir.1994); United States v. French, 974 F.2d 687, 693 (6th Cir.1992). The government has the burden of demonstrating that consent was "freely and voluntarily given," and was not the result of coercion, duress, or submission to a claim of authority. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Bueno, 21 F.3d at 126; United States v. Cooke, 915 F.2d 250, 252 (6th Cir.1990). The proper analysis for determining the voluntariness of a detainee's consent is to consider the "totality of the circumstances" of the alleged consent. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; Bueno, 21 F.3d at 126. It is not necessary that the police inform the detainee that he or she has a right to refuse consent, but instead, such lack of warning of the detainee's right to refuse will be considered under the totality of circumstances analysis. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041; United States v. Jones, 846 F.2d 358, 360 (6th Cir.1988). This court will accept a finding of voluntary consent unless it is clearly erroneous. Bueno, 21 F.3d at 126; French, 974 F.2d at 693.

The...