United States v. Thevis
| Decision Date | 30 March 1979 |
| Docket Number | Crim. No. H-78-73,H-78-66. |
| Citation | 469 F. Supp. 490 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America v. Michael George THEVIS. UNITED STATES of America v. A. Jeanette EVANS. |
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Thomas P. Smith, Asst. U. S. Atty., Richard Blumenthal, U. S. Atty., New Haven, Conn., for plaintiff.
Austin E. Catts, Atlanta, Ga., Raynald B. Cantin, Hartford, Conn., Bobby Lee Cook, Summerville, Ga., Justin J. Donnelly, Bloomfield, Conn., for defendants.
RULING ON CONSOLIDATED MOTIONS TO SUPPRESS AND TO DISMISS
The cases of the defendants Michael George Thevis, one of the FBI's ten most wanted fugitives, and his traveling companion, Anna Jeanette Evans, have been consolidated solely for the purpose of resolving the present motions. Said defendants have moved the Court to suppress certain statements made by them and evidence seized from them, and to dismiss their indictments.
After conducting a five-day evidentiary hearing, the Court finds that the initial questioning of the defendants and their subsequent arrest and detention were reasonable within the meaning of the Fourth Amendment. The Court does find that certain of the statements made by the defendants to the government agents were obtained in derogation of the defendants' Fifth Amendment rights, but that certain other statements were obtained without any Fifth Amendment violations. Consequently, the defendants' motion to suppress statements made by them is granted in part and denied in part. The Court further finds that all of the searches and seizures of which the defendants complain were reasonable within the meaning of the Fourth Amendment, and accordingly the defendants' motions to suppress the evidence seized are denied. The Court further finds, as a matter of law, that the statements attributed to the defendant Evans in Counts Three and Four of the indictment do not constitute false or fraudulent statements within the meaning of 18 U.S.C. § 1001, and accordingly dismisses those counts. Finally, while agreeing with the defendants that the government agents transgressed not only the Fifth Amendment but also certain FBI regulations in conducting their investigation, the Court concludes that the suppression of statements obtained illegally is sufficient to vindicate the defendants' Constitutional rights. Therefore, the defendants' motion to dismiss the indictments in their entirety is denied.
Separate indictments were handed down by the Grand Jury against the defendants in November 1978. In Criminal Case No. H-78-66, the defendant Evans was charged with harboring an escaped prisoner, 18 U.S.C. § 1072, harboring a fugitive from justice, 18 U.S.C. § 1071, and two counts of making a false statement to an FBI agent, 18 U.S.C. § 1001. Thevis was charged in Criminal Case No. H-78-73 with possession of firearms by a convicted felon, 18 U.S.C. App. § 1202(a)(1), interstate transportation of a firearm by a convicted felon, 18 U.S.C. §§ 922(g) and 924(a), and possession of a fraudulent passport, 18 U.S.C. § 494.
The defendants were apprehended on November 9, 1978 by the FBI and officers of the Bloomfield Police Department. The critical events of that day had been set in motion as early as September 20, 1978, when an individual identifying himself as Arby J. Evans opened a savings account, with an initial cash deposit of $3,000, at the Bloomfield State Bank in Bloomfield, Connecticut. The individual was not in fact, Arby J. Evans, but rather the defendant Michael George Thevis, who at that time was a fugitive from justice, having escaped on April 28, 1978 from federal custody in New Albany, Indiana. On October 13, 1978 the Bloomfield State Bank received through the mail a $30,000 check to be deposited to the account of Arby J. Evans.
Bank personnel considered this transaction unusual in light of the fact that the $30,000 check was a "starter" check (i. e. one that is drawn on a new account and does not bear the imprinted name of the drawer), the large amount of the check, and the fact that the Bloomfield State Bank account had only recently been opened. The transaction was therefore called to the attention of the bank's president, Joseph Gozzo. Upon being apprised of the situation, Gozzo feared that the bank could become the victim of a "checkkiting" operation. There are various known methods of checkkiting. One is to establish a bank account, deposit fraudulent checks, and withdraw the money before there is time for the checks to clear. Another is to open an account in a fraudulent name, deposit stolen forged checks which will clear, and then withdraw the funds from the account. The perpetrators can insure that the checks will clear by stealing them from the middle or the bottom of their victim's checkbook, which prevents the victim from learning of the theft until his next bank statement arrives in the mail. (Tr. 67). The perpetrators can then plan to make the withdrawal after the stolen forged checks have cleared, but before the victim receives his bank statement at the end of the month. The fact that "Evans" was making a transfer of such a large amount of money from one newly opened account to another newly opened account aroused Gozzo's suspicion enough to cause him to investigate further.
"Evans" had used a North Carolina driver's license as identification in opening the Bloomfield State Bank account, which Gozzo deemed unusual in light of the fact that the starter check was drawn on a South Carolina bank. Gozzo then learned that "Evans" did not live at 19 Hill Farm Road, Bloomfield, which address he had used in opening his Bloomfield State Bank account. Finally, Gozzo was unable to locate a telephone number for Arby J. Evans in Connecticut, North Carolina or South Carolina. His suspicions thoroughly aroused, Gozzo called the Bloomfield Police Department and informed either Deputy Chief Anthony Toce or Officer Thomas Beatty of the cause for his concern. Beatty contacted FBI Agent Richard Foster and asked him to check on the validity of the starter check and the identity of Arby J. Evans. Foster reported back that there was a real Arby J. Evans, who was a respected contractor in Mebane, North Carolina with no known criminal record, and that there were sufficient funds in the South Carolina bank to cover the starter check. This information was in turn relayed to Gozzo, and on October 24, 1978 when the Bloomfield State Bank received payment for the starter check from the drawee bank, the account of Arby J. Evans was credited for the full amount.
On November 8, 1978 Thevis, still posing as Arby J. Evans, entered the Bloomfield State Bank and told vice president Leonard Antcil that he would like to withdraw $31,000 from his account in 50 and 100 dollar bills at approximately 9:30 the following morning. Antcil told Thevis that the bank would make a room available to him so that he could count the money. Thevis responded that that would not be necessary, that he would trust the bank's count. He further requested that the money be put in a brown paper bag and that only those absolutely necessary be told about the withdrawal. When Antcil reported this information to Gozzo, the latter became concerned that the person purporting to be Arby J. Evans, might not in fact be the true owner of the funds. He then called the bank's counsel, Attorney David Beizer of the law firm of Rome & Case, for advice. Enroute to lunch, Gozzo and Beizer decided to stop at 19 Hill Farm Road, the given address of the depositor, to learn whether Arby J. Evans in fact lived there. Failing to receive a response to the doorbell, they looked in the mailbox and found mail addressed, not to Evans, but to a party named Rifkind.
Upon his return from lunch Gozzo instructed Antcil to learn what he could about "Evans" from the Post Office. When Antcil reported back that "Evans" had received some correspondence from the Connecticut Bank and Trust Company, Gozzo called that bank and learned that "Evans" was intending to withdraw $55,000 in cash from that bank the following morning. At this point Gozzo contacted Deputy Police Chief Toce and informed him of the foregoing facts. Toce then arranged for Officer Beatty and FBI Agent Foster to meet with him at the bank the following morning to check "Evans" identification. Later that afternoon Gozzo learned from a director of the bank, who happened to live on Hill Farm Road, that Mrs. Rifkind had sold her house to Arby J. Evans. Gozzo relayed this information to Toce either that afternoon or early the following morning. However, no one told Agent Foster of this development. He had previously been told by Officer Beatty that 19 Hill Farm Road was a "phony" address. Agent Foster mistakenly interpreted this to mean that there was no such address. The first time he learned that Thevis had put a downpayment on the house was November 9, 1978, when he questioned Thevis in the bank about his local address. (Tr. 126).
At approximately 9:00 a. m. on November 9, 1978, Toce and Beatty arrived at the bank and were met a few minutes later by Foster. Thevis arrived on schedule between 9:20 and 9:30. He was met by vice-president Antcil, who told Thevis that Gozzo wished to speak with him, and was led to the president's office, where Gozzo and the three law enforcement officers were waiting. At Gozzo's request, Thevis produced identification, including a driver's license and several credit cards in the name of "Arby J. Evans" as well as credit cards bearing the name "A. J. Evans." These latter cards actually belonged to Anna Jeanette Evans and had been given to Thevis prior to his entering the bank.
At that point Gozzo left the room, and Foster introduced himself as an agent of the FBI. Toce and Beatty were introduced as Bloomfield police officers. Upon learning Foster's identity, Thevis exclaimed, ...
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