United States v. Cunningham

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1828

UNITED STATES OF AMERICA,

Appellant,

v.

REX W. CUNNINGHAM, JR., THOMAS FERRIS, BRIAN HOYLE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Todd E. Newhouse, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the United

States.
Wendy Sibbison for appellees.

May 19, 1997

BOUDIN, Circuit Judge. In the district court, the

defendants in this criminal case moved to suppress evidence

as illegally seized and, based on the magistrate judge's

report, the district court granted the motion. The

government filed an interlocutory appeal from the suppression

order. We reverse.

I.

In late February 1992, Carmen Picknally, an assistant

district attorney in Hampden County, Massachusetts, applied

to the state Superior Court for a warrant, pursuant to Mass.

Gen. Laws ch. 272, 99(F), to authorize the interception of

telephone calls to or from two specified cellular car

telephone numbers. The car telephones in question were

located in cars controlled by defendant Rex W. Cunningham,

Jr., and the offenses under investigation were suspected

violations of state anti-gambling statutes. Mass. Gen. Laws

ch. 271, 17.

A supporting 109-page affidavit by state trooper Timothy

Alben described evidence that Cunningham had used threats in

attempting to collect gambling debts for bets that he had

taken. The affidavit also set forth information from five

confidential informants about a large-scale gambling

organization allegedly controlled by Cunningham, including

specifics as to how the organization worked, the names of

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employees, telephone numbers, and the location of records and

cash.

On February 28, 1992, Justice Constance Sweeney, of the

state Superior Court, issued the requested warrant, and

signed ancillary orders directed to two carriers. Several

incriminating calls were intercepted between Cunningham and

others and were described in another affidavit of Alben in

support of a requested extension sought by Picknally on or

about March 17, 1992. Justice Sweeney granted the requested

extension. Surveillance of the two telephones ended on April

1, 1992.

On April 17, 1992, Picknally applied to the Superior

Court for a new warrant, this time (according to the

application's caption) "authorizing the interception of oral

communications of . . . Cunningham within an establishment

known as Dillons (sic) Tavern." The application identified

Dillon's Tavern at a street address in Springfield,

Massachusetts, and said that it was on property controlled by

Cunningham and his relatives. Incorporating a new Alben

affidavit, the application referred to loansharking, Mass.

Gen. Laws ch. 271, 49, as well as gambling, as suspected

offenses.

Although the caption referred to interception of oral

communications "within . . . Dillons (sic) Tavern," the

first paragraph described the application as one for a

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warrant "to intercept certain wire and oral communications,"

and there are later references to "wiretaps" and, separately,

to "oral communications . . . within Dillons (sic) Tavern."

The affidavit also asked for authority for Alben to make

secret entries into Dillon's Tavern "for the purpose of

installation and activation of oral interception devices."

This application, it appears, was a poorly edited markup of

the original wiretap application.

Immediately below Picknally's signature was a paragraph

signed by the district attorney for the county, saying that

he had reviewed the application and affidavit and that the

proposed use of electronic surveillance relative to two

specified telephone numbers was consistent with county

policy. The two listed telephone numbers were the cellular

telephone numbers specified in the original application.

Apparently the paragraph had been copied from the original

warrant application without change.

The supporting Alben affidavit, this time 62 pages in

length but attaching the original affidavit as well,

described Cunningham's caution in using the telephone and

provided reasons for believing that Cunningham and others

were using Dillon's Tavern for meetings in aid of gambling

and loansharking. The affidavit described Cunningham's

regular use of a particular table in Dillon's Tavern to

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conduct his business. It also explained why oral

interceptions were needed to supplement other evidence.

Alben's affidavit did not contain the confusing jumble

of references to wiretaps and oral communications that marred

the Picknally application. It asked for approval to

intercept oral communications within Dillon's Tavern,

specifying that interception would

be limited to only such times that physical

surveillances of this DILLONS TAVERN and Rex W.
CUNNINGHAM Jr. can reasonable (sic) place
CUNNINGHAM within this location and that
interceptions will take place only at or near the
particular table within the dining area which has
been identified within this affidavit as being
consistently used by CUNNINGHAM or his associates.

It also asked approval to enter Dillon's Tavern to install

technical equipment to achieve the interceptions.

The warrant signed by Justice Sweeney had a caption

similar to the application, specifically referring to

interception of oral communications; but--like the

application--the warrant also referred confusingly to wire

communications. It approved the secret entry to install

equipment, and imposed various safeguards. The warrant was

extended numerous times, and assault and battery was added as

a suspected offense. Surveillance ended on November 1, 1992.

By then 125 cassette tapes had been accumulated and were

sealed by the Superior Court.

On April 21, 1995, a federal grand jury in Springfield

indicted Cunningham on RICO violations, loansharking, illegal

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gambling activities, and conspiracy to commit those offenses,

18 U.S.C. 2, 892, 894, 1955, and 1962(c) and (d). Co-

defendants Brian Hoyle and Thomas Ferris were charged with

loansharking conspiracy. Most of the evidence against

Cunningham, and all of the evidence against the co-

defendants, derived from the electronic surveillance and from

searches conducted under state-court issued warrants at

various sites shortly before the surveillance terminated.

By joint motion filed on December 15, 1995, the

defendants moved to suppress materials acquired by electronic

surveillance under Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. 2510-20. That statute

governs interception of both wire communication and oral

communication, laying down detailed standards and procedures.

Id. 2516-18. It also provides for exclusion from

evidence of interceptions taken in violation of the statute.

Id. 2515.

After a two-day evidentiary hearing, including testimony

from Picknally, Alben, and Hampden County District Attorney

William Bennett, the magistrate judge issued a report on

March 28, 1996. In it, he recommended that the motion to

suppress be allowed as to all electronic interceptions of

conversations at Dillon's Tavern. He said that the confusion

in the warrant meant that it did not comply with statutory

requirements as to specificity, 18 U.S.C. 2518(4), nor--

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assuming a good faith exception existed--was reliance on the

warrant objectively reasonable.

On May 17, 1996, the district court approved the

magistrate judge's recommendation. Its analysis tracked that

of the magistrate judge and his rejection of a "good faith"

defense was adopted by cross reference. In memoranda dated

June 13 and July 12, 1996, the district court addressed two

successive government motions for reconsideration but stood

by its earlier conclusion. The government then brought the

case to us by interlocutory appeal. 18 U.S.C. 3731.

II.

On review of a suppression order, we defer to the

factfinder's findings of raw fact unless clearly erroneous,

and we consider issues of law de novo. United States v.

Morris, 977 F.2d 677, 680 (1st Cir. 1992). In the past,

there has been deference accorded to the factfinder's

judgment in applying general standards to particular known

facts; but the Supreme Court has recently stressed our

responsibility, in a related Fourth Amendment context, to

review "mixed questions" from an independent vantage.

Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996)

(reasonable suspicion and probable cause).

The government offers two alternative reasons for

reversal. The first is its claim that the warrant

adequately, although not perfectly, identified oral

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communications as its target--especially since Justice

Sweeney and Trooper Alben as executing officer knew that this

was its purpose. The second argument is that the so-called

good-faith exception of United States v. Leon, 468 U.S. 897

(1984), is available under the statute in this case and

applies on the present facts.

At the threshold, defendants object that neither basis

for appeal was sufficiently preserved. Because we consider

only the first ground on the merits, our discussion of this

threshold objection is similarly limited. To decipher that

objection, it is necessary to understand how the government's

defense of its warrant evolved on the path from the

magistrate judge to the district court and finally to us.

Before the magistrate judge, the government defended its

warrant on the ground that, analyzing the wording in detail,

the errors were technical or clerical. The government did

not expressly assert that the personal knowledge of the

authorizing judge and executing officer were pertinent; but,

the magistrate judge touched obliquely on the issue, saying

that the government's "excuse" would, if accepted, "allow

agents to conduct searches so long as they understood what

was intended by the orders which their attorneys drafted for

signatures by the court."

In its district court brief, the government again

analyzed the warrant's language, arguing that it referred

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several times to interception of oral communications at

Dillon's Tavern and that no reasonable officer would read it

to approve wiretaps, especially because no telephone numbers

were listed in the warrant. The government did not mention

the knowledge of the judge or executing officer; indeed, in

its first petition for reconsideration, the government

complained that the district court had looked "beyond the

four corners of the warrant."

The government's first attempt to emphasize what Justice

Sweeney and Trooper Alben knew at the time came only in its

appellate brief where, for the first time, it also cited to

United States v. Bonner, 808 F.2d 864 (1st Cir. 1986), and

similar cases making such knowledge relevant. Whether this

new emphasis is a separate "ground" or merely a new twist,

the government clearly did not offer it below and instead

steered the magistrate judge and district court toward a

strict linguistic analysis of the warrant. If these judges

erred, it was surely error "invited" by counsel.

But whether we should ignore Bonner is a more difficult

question. The government sought timely review of the

magistrate judge's ruling, and it filed a timely appeal to us

from the district court's ruling. True, local rules warn

that failing to list grounds for reviewing the magistrate

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judge's report may be fatal;1 but we do not read this warning

to counsel as preventing a reviewing court--where timely

review is sought at each stage--from noticing on its own

arguments not developed below.

The ability of a reviewing court to decide the case

properly is fundamental. Singleton v. Wulff, 420 U.S. 106,

120-21 (1976). Indeed, the rules expressly preserve our

ability to notice "plain errors" that affect "substantial

rights," Fed. R. Crim. P. 52(b), especially where failure to

do so would work a substantial injustice. United States v.

Olano, 507 U.S. 725 (1993); see also Johnson v. United

States, S. Ct. , 1997 WL 235136 (U.S. May 12, 1997).

The threat of substantial injustice is not limited to the

interests of defendants. United States v. Krynicki, 689 F.2d

289, 292 (1st Cir. 1982).

In this case, Bonner and similar decisions show that the

issue of knowledge is not wholly distinct from the claim of

clerical error; whether an error is forgiven as clerical

depends, at least in some situations, on whether in context

it actually threatened privacy interests; and this in turn

may be affected by the executing officers' knowledge. The

1Compare Rule 3(b), Rules for U.S. Magistrates in U.S.

District Court in Massachusetts with Thomas v. Arn, 474 U.S.

140, 146 & n.4 (1985) (declining to treat such rules as
jurisdictional). See generally 15A C. Wright, et al.,

Federal Practice andProcedure 3901.1, at 42 (2d ed. 1992).

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Bonner argument is not intuitively evident; but it is "plain"

enough once the cases are consulted.

A final reason for refusing to cabin the analysis here

is that the defendants are not prejudiced, because their

ability to meet the government's Bonner argument is not

affected by the delay. The knowledge of the state judge and

executing officer is readily inferred from documents and from

testimony taken at the magistrate judge hearing, where

defense counsel cross-examined the witnesses. Defendants

have not pointed to any evidence lost or foregone due to the

government's tardiness in making its knowledge argument.

III.

Turning then to the merits, we face at the outset a

statutory ban on use in court of the contents of an

intercepted wire or oral communication, or "evidence derived

therefrom," where disclosure would violate Title III. 18

U.S.C. 2515. There is no violation if the interception was

"authorized by" Title III. Id. 2517. The authorizing

provisions, 18 U.S.C. 2516-18, elaborately set forth the

crimes to be investigated, the application process for

authorizing orders, and the standards to be met.

Pertinent here is 18 U.S.C. 2518(4), which governs

each order authorizing an interception and requires that the

order specify five different items. Three items (subsections

(a), (d) and (e)) are not in dispute: the identity of the

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target, the identity of the agency and the authorizing

official, and the time period. The other two items which

must be included are as follows:

(b) the nature and location of the communications
facilities as to which, or the place where,
authority to intercept is granted; [and]

(c) a particular description of the type of
communication sought to be intercepted, and a
statement of the particular offense to which it
relates[.]

The defendants invoked both provisions; the magistrate

judge and the district judge focused upon (b), as the

government seeks to do here. In truth, we think that both

provisions need to be read together. Their thrust,

disregarding the final clause of (c), is to identify the type

of communication and to narrow the targeted communications by

location of "facilities" (e.g., identifying a particular

telephone) or "place" (e.g., where a "bug" is to be located

to intercept oral communications).

In a literal sense, the warrant does describe both type

and place: it refers expressly to oral communications and to

Dillon's Tavern. But this is an extreme example of missing

the forest for the trees. By referring randomly to oral

communications and wire communications or wiretaps, the

warrant is garbled on the very questions posed by subsections

(b) and (c). Taken as a whole--but taken alone and without

extrinsic evidence--the warrant does not tell the objective

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but ignorant reader just what interceptions are to be

targeted.

Now, the extent of confusion is a matter of degree. Any

reader can see that the warrant has been misdrafted; whether

a reasonable (but otherwise uninformed) police officer would

solve the puzzle correctly is probably a matter of

percentages. In all events, the confusion is serious, and

despite the government's linguistic acrobatics, this is not a

warrant that we would deem adequate if it were signed by a

judge and executed by a police officer having no other

knowledge of the background and objectives.

The inadequacy is not because of any high likelihood

that an otherwise uninformed officer would tap a telephone or

would intercept Cunningham's oral communications at some

other location than Dillon's. No telephone number is given

in the body of the warrant, and no other "place" of

interception is mentioned. Rather, standing alone, the bare

inconsistent words of the warrant fail to create reasonable

assurance that the signer or reader would know just what was

intended.

But this is not the end of the story. The Supreme Court

has made clear that suppression is not automatically required

for every Title III violation; rather, as a sister circuit

summed up the Supreme Court's precedents in United States v.

Johnson, 696 F.2d 115, 121 (D.C. Cir. 1982), "violations of

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even . . . central requirements do not mandate suppression if

the government demonstrates to the court's satisfaction that

the statutory purpose has been achieved despite the

violation." See also United States v. Donovan, 429 U.S. 413,

433-34 (1977); United States v. Chavez, 416 U.S. 562, 574-75

(1974).

Title III is designed to protect privacy interests

similar to those reflected in the Fourth Amendment. Whether

or not Leon's good faith exception should be interpolated

into the statute--an issue we do not decide--Fourth Amendment

precedent is highly relevant in deciding whether an

authorizing order is valid and whether a defect in wording is

of a kind that threatens the central interests sought to be

protected. Indeed, the Supreme Court itself has relied upon

Fourth Amendment precedent in implementing Title III. Dalia

v. United States, 441 U.S. 238, 254-59 (1979).

A substantial body of Fourth Amendment precedent akin to

Bonner, representing most circuits, permits a reviewing court

to consider the knowledge of the officials who approved the

warrant and executed it. The reason is fairly

straightforward: such knowledge may, on particular facts,

show that there was in fact no real threat to legitimate

privacy interests. Examples include the judge approving the

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warrant but forgetting to sign, or the warrant's omission of

an address known both to the judge and executing officer.2

In calling such mistakes "clerical," courts do not mean

that they are all unimportant typographical errors. What is

meant is that they are wording mistakes introduced by

accident or lack of care rather than wilfully or with a

sinister purpose. Cases like Bonner often involve, and

forgive, very serious clerical mistakes, depending upon the

risk that they posed in fact. E.g., Bentley, 825 F.2d at

1109 (personal knowledge of officers saved warrant that

listed wrong office number). In this sense, the term

"clerical" is highly misleading.

Such an approach is not cost free. In an individual

case, a defect may pose no threat (we will show that this is

so here); but exclusion of evidence in that case will still

make the police more careful next time and so may prevent a

different mistake that does pose such a threat. But there

are costs either way: excluding reliable evidence and

possibly freeing the guilty is also a cost. And cases like

2See, e.g., United States v. Brown, 49 F.3d 1162, 1168-

69 (6th Cir.), cert. denied, 116 S. Ct. 377 (1995); United

States v. Owens, 848 F.2d 462, 465 (4th Cir. 1988); United

States v. Bentley, 825 F.2d 1104, 1109 (7th Cir.), cert.

denied, 484 U.S. 901 (1987); United States v. Turner, 770

F.2d 1508, 1511 (9th Cir. 1985). An extensive collection of
federal cases, by circuit, is contained in 84 Geo. L.J. 717,

734 n.78 (1996). Some additional case authority, including
state cases, is contained in 2 LaFave, Search and Seizure

4.5(a) (3d ed. 1996).

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Bonner represent a balance between competing objectives. In

any event, such is the law of this circuit and many others.

In sustaining the warrant in this case, we rely upon two

major elements. First, the flaw in this case, although

serious, was a discrete set of clerical mistakes in a process

that in all other important respects complied with the

statute. An application to a judge was made; it demonstrated

probable cause and other requisites for the interceptions

proposed; it identified place and type (although in a

confusing language); a warrant was signed; and the

authorizing judge and executing officer knew just what they

were doing.

Second, because the judge and the executing officer knew

what had been proposed and authorized, there was no

substantial threat that this officer would intercept

communications other than as authorized. Thus, despite the

seriously confusing language, the error here presented far

less of a threat to civil liberties than, say, a facially

coherent warrant that mistakenly inverted the numbers of a

street address and was executed by an officer who did not

know the actual address.

It is the combination of these two elements that, as in

Bonner, persuades us that the warrant should be treated as

valid and, as in Johnson, that "the statutory purpose [of

Title III] has been achieved despite the violation." 696

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F.2d at 121. And, as always, substantial compliance and risk

from error are matters of degree. Knowledge would not save

the interception if, for example, Alben had made out the

affidavit but then neglected to present it to a judge to

secure judicial approval. Similarly, nothing in what we say

offers any comfort to an officer who fails to comply with the

true object of the warrant.

It is also worth stressing that the knowledge of Justice

Sweeney and of Trooper Alben are established by a paper-trail

record that was created before the search. The affidavits

submitted to secure the telephone taps and then to authorize

oral interceptions show beyond serious dispute just what the

judge and the executing officer understood. The hearing

record before the magistrate judge does help knit the events

together, but there is no threat here of recollections being

invented after the event.

This hard evidence lessens, although it does not

eliminate, the problems associated with any resort to

personal knowledge. But proof of the knowledge possessed by

the police is the critical issue for most warrantless arrests

and searches, e.g., Chambers v. Maroney, 399 U.S. 42, 47-48

(1970); and, of course, knowledge is scrutinized in warrant

cases as well where (for example) there is a charge of

fabrication or of invented information.

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The Supreme Court's cases do express a special concern

where subjective motivation rather than knowledge is

involved. Thus, the Court has held as a matter of law that

malignant motive is irrelevant where objectively reasonable

conduct is proved to make out a defense of governmental

qualified immunity, Anderson v. Creighton, 483 U.S. 635, 641

(1987), or where probable cause exists but a search is

challenged as pretext. Whren v. United States, 116 S. Ct.

1769, 1774 (1996). But the special concerns about

overturning reasonable conduct because of bad motive have

nothing to do with this case.

One final word on this issue is in order. Where, as

here, the government seeks to rescue a defective warrant

based partly on knowledge of the judge or officer, the burden

is upon it to prove such knowledge--just as it would be the

defendant's burden if the warrant were facially valid but

sought to be impugned by proof of perjury. It is fortunate

for the government that in this case, the evidence is

overwhelming and available from the existing record. This

piece of luck does not make the mishandling of the matter

look any more attractive.

IV.

The defendants advance an alternative ground for

upholding the suppression of the Dillon's Tavern tapes. They

claim that the government failed to comply with the sealing

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requirement of Title III, 18 U.S.C. 2518(8)(a), with

respect to the cellular phone tapes. And, since the Dillon's

Tavern surveillance derived from this allegedly tainted

evidence, defendants say that it must be suppressed. Id.

2515. The district court ruled that the brief delay in

sealing was not material.

The statute authorizing an interlocutory appeal from an

order of suppression, 18 U.S.C. 3731, gives only the

government a right to appeal, and for good reason. If

evidence is suppressed, the government cannot appeal the

suppression order after trial for double jeopardy reasons,

whereas the defendant (if convicted) can always appeal from

the district court's earlier refusal to suppress.

It is well-established that appellate courts can uphold

a judgment based on a ground rejected by the district court.

This general principle has been applied to section 3731

appeals. United States v. Moody, 485 F.2d 531, 534 (3d Cir.

1973). But the government objects in this case that the

defendants' alternative ground would not only support the

order suppressing the Dillon's Tavern tapes but also

undermine the different order declining to suppress the

cellular phone tapes. Thus, it argues that the alternative

ground is really a Trojan-horse effort to review an

unappealable order.

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The argument is clever but unpersuasive. The fact that

the sealing issue may have implications for two different

orders does not prevent us from considering that issue so far

as it pertains to a reviewable order. The cases cited by

the government, e.g., United States v. Shameizadeh, 41 F.3d

266, 267 (6th Cir. 1994), are not on point. Indeed, if we

thought that the suppression order were clearly valid, but on

a ground different than that offered by the district court,

it would be bizarre to overturn it.

In this instance, however, the magistrate judge and the

district court amply justified their action in treating the

brief sealing delay as "satisfactor[ily] explained." 18

U.S.C. 2518(8)(a). See United States v. Ojeda Rios, 495

U.S. 257, 265 (1990). There was no bad faith by the police,

no claim of alteration to the tapes, and no other prejudice

even suggested. Given these circumstances and the brevity of

the delay, we think no extended discussion is required in

this case.

Reversed.

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