USA. v. Fiorillo
| Decision Date | 10 September 1999 |
| Docket Number | 97-10552,Nos. 97-10551,s. 97-10551 |
| Citation | 186 F.3d 1136 |
| Parties | (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANK FIORILLO, JR., and ART KRUEGER, Defendants-Appellants |
| Court | U.S. Court of Appeals — Ninth Circuit |
John P. Balazs, Assistant Federal Public Defender, Sacramento, California, for defendant-appellant Frank Fiorillo, Jr., and Sandra Gillies, Woodland, California, for defendant appellant Art Krueger.
R. Steven Lapham, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding. D.C. No. CR-96-00116-GEB.
Before: Phyllis A. Kravitch,1 Stephen Reinhardt, and Thomas G. Nelson, Circuit Judges.
OPINION
Frank Fiorillo and Art Krueger appeal their convictions for wire fraud and violations of the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. SS 6901 et seq.). Fiorillo also appeals his convictions for receiving explosives without a permit. We have jurisdiction under 28 U.S.C. S 1291, and we affirm in part and reverse and remand in part.
Diversey Corp. ("Diversey") is a company engaged in the manufacture and sale of industrial cleaning products. In 1992, Diversey discovered that two of its products, Slurry and Eclipse, would leak out of their containers in warm or humid weather. The two products are industrial-strength cleansers used in institutional settings and both are highly caustic.2 After determining that the products were unsaleable, Diversey authorized its corporate distribution manager, Adrian Farris, to dispose of 30,000 gallons of the products.
Frank Fiorillo was the president and CEO of West Coast Industries, Inc. ("West Coast"). The company's primary business was the storage of a number of products at a warehouse located in Sacramento, California. Fiorillo, who had provided warehouse services to Diversey in the past, submitted a proposal for the disposal of the products to Farris on behalf of West Coast and SafeWaste Corp. ("SafeWaste"), Art Krueger's company. Farris agreed to the proposal and the parties entered into a contract on February 24, 1993, for the disposal of 10,000 gallons of Slurry and Eclipse. Under the contract, Diversey agreed to pay 50% of the contract costs when the products were transported to Fiorillo's warehouse and the remaining 50% upon submission of compliance documentation.
Diversey periodically received compliance documentation from Fiorillo and Krueger in the form of certificates of disposal, which were signed by Krueger. Ultimately, Diversey paid Krueger and Fiorillo $254,000 for the disposal of 30,000 gallons of the hazardous products. In reality, Fiorillo and Krueger only properly disposed of two of the eleven truckloads of Slurry and Eclipse by sending it to a facility in Nevada, which met the requirements set out in RCRA. The rest of the Slurry and Eclipse was stored at Fiorillo's warehouse in Sacramento in a cold room that Krueger leased from Fiorillo.
In August 1993, Rick Knighton, a former West Coast employee, informed David DeMello, a Sacramento County Fire Department official, that West Coast was storing Class A explosives at its warehouse.3 DeMello, who had conducted earlier fire inspections of the warehouse, and another fire inspector, Robert Billett, went to the warehouse where they informed the receptionist that they were there to conduct an inspection. DeMello's and Billett's testimony conflicts over what happened next.
According to DeMello, the receptionist phoned someone who authorized the inspectors to enter the warehouse. Billett did not recall the receptionist getting permission to let them in. Rather, he remembered that she simply allowed them to proceed with the inspection. Regardless, before the men discovered any explosives, they were met by Fiorillo. DeMello testified that Fiorillo was cordial and polite when he greeted the two men. Fiorillo agreed to accompany the inspectors during the inspection. DeMello and Billett then discovered the Class A explosives, consisting of approximately 17,000 artillery shells, taking up about one-third of the warehouse.4 DeMello also discovered hazardous material, which covered an additional one-third of the warehouse, leaking from its containers about six feet from the explosives.
Over the course of the next few days, members of the fire department returned to the warehouse to ensure that proper cleanup was occurring and that no further violations were happening. About eight days after DeMello's discovery, the fire captain, Ed Vasques, received an anonymous tip that additional hazardous materials were being stored in a room that the fire inspectors had not discovered. DeMello, Vasques, and other officials conducted a re-inspection of the warehouse and discovered an unmarked door that was hidden behind several pallets of food and beverages.
Peter Bishop, an independent contractor hired by West Coast to assist in the cleanup, entered Fiorillo's office to get keys to the room. An investigator from the Sacramento County environmental office overheard Fiorillo say that there was nothing in the room, that he had done everything they wanted and that he had had enough. Nevertheless, Bishop came back out with the keys. A door outside the warehouse led into the cold room as did a door inside the warehouse. The keys did not work on the outside door, and when Bishop went to unlock the inside door, it was apparently unlocked. At this point, the county officials discovered the Slurry and Eclipse, which Krueger and Fiorillo had told Diversey was destroyed.
Fiorillo was charged with twelve counts of wire fraud (four of the counts were dismissed by the Government prior to trial), two counts of violating provisions of RCRA, and two counts of receiving Class A explosives without a permit. Krueger was charged with all of the same counts except those relating to the explosives. A jury found both men guilty of all the counts against them.
Prior to going to trial, Fiorillo and Krueger moved to suppress the evidence found at the warehouse because the searches were conducted without a warrant. The district court denied the motion concluding that Fiorillo and Krueger did not have standing to challenge the initial inspection of the warehouse because they did not have a reasonable expectation of privacy regarding the main warehouse floor. The district judge also ruled that even if they did have standing, the receptionist and Fiorillo consented to the inspection. The judge also determined that Fiorillo had apparent authority to consent to the inspection of the cold room. We agree that Fiorillo consented to the search of the cold room as well as the main floor of the warehouse and that he had apparent authority as to the former.
"The validity of a warrantless search is reviewed de novo." United States v. Kyllo, 140 F.3d 1249, 1252 (9th Cir. 1998). This court reviews de novo a district court's denial of a motion to suppress evidence seized in a search. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir. 1997), cert. denied, 118 S. Ct. 1087 (1998). Factual findings underlying that decision are reviewed for clear error. See id.
This court will "not disturb a district court's determination that a person's consent to search was voluntary unless that determination was clearly erroneous." United States v. ChanJiminez, 125 F.3d 1324, 1326-27 (9th Cir. 1997).
The district court found that, even if Fiorillo and Krueger had standing to object to the warrantless search of the main warehouse floor, West Coast's receptionist and Fiorillo consented to the search. West Coast's receptionist consented to let the fire inspectors enter the warehouse where the men then encountered Fiorillo. Prior to the inspection and subsequent discovery of the explosives, Fiorillo consented to the search of the main warehouse floor.
There is sufficient evidence in the record to support the district court's conclusion. DeMello and Billett presented themselves to the receptionist; they were wearing their uniforms; they showed her their credentials; and they informed her they were there to conduct an inspection. Whether or not the receptionist made a call to the warehouse supervisor is irrelevant. She controlled the reception area of the warehouse and told the inspectors they could pass through and enter the warehouse. Prior to actually commencing the inspection, DeMello and Billett were greeted by Fiorillo who recognized DeMello from previous inspections and treated them cordially and courteously. When the fire officials told Fiorillo they were there to conduct an inspection, Fiorillo asked them where they would like to start and then accompanied them. If Fiorillo had not wanted the men to conduct an inspection of the warehouse, he could have stopped them at this point, but he chose not to do so.
Fiorillo contends that any consent is invalid because the fire inspectors said they were there to conduct a fire inspection, not an inspection for explosives. The district court rejected this argument. The City of Sacramento fire code states that the purpose of a fire inspection is to inspect for conditions that would reasonably tend to cause a fire or contribute to its spread. Undoubtedly, the presence of Class A explosives could cause a big fire or make a small fire into a big one. A fire inspection unquestionably includes an inspection for the unlicensed storage of Class A explosives. The district court did not clearly err in determining that consent...
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