United States Court of Appeals
For the First Circuit
No. 01-1408
UNITED STATES OF AMERICA,
Appellant,
v.
JOHN PATRICK HUGHES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Chief Judge,
Rosenn,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Theodore D. Chuang, Assistant United States Attorney, with
whom James B. Farmer, United States Attorney, was on brief for
the United States.
Miriam Conrad, Federal Defender Office, for appellee.
*Of the Third Circuit, sitting by designation.
February 6, 2002
BOUDIN, Chief Judge. On December 8, 1999, a federal
grand jury returned an indictment against John Patrick Hughes,
charging him with three counts of making false statements in
connection with the acquisition of firearms in violation of 18
U.S.C. § 922(a)(6), and three counts of possession of a firearm
by a drug user or addict in violation of 18 U.S.C. § 922(g)(3).
Hughes then moved to suppress statements made following an
arrest by East Bridgewater police for a motor vehicle charge, as
well as a firearm, ammunition, and an address book discovered
during an inventory search of his car. The district court
denied suppression of the statements, firearm, and ammunition,
but granted the motion with regard to the address book.
The government then sought a pretrial ruling permitting
it to call at trial four witnesses who were related in various
ways to the address book. After a four-day evidentiary hearing,
the district court granted the motion for two of the witnesses,
but ruled that the remaining two--Heather Caisse and Megan
Clancy--could not testify because they were fruits of the
unlawful seizure. United States v. Hughes, 131 F. Supp. 2d 64,
86-87 (D. Mass. 2001). The government brought this
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interlocutory appeal under 18 U.S.C. § 3731 seeking to allow
the prohibited testimony.
The background events can be briefly summarized. On
June 18, 1999, Special Agent (SA) Murphy of the Bureau of
Alcohol, Tobacco and Firearms (ATF) began investigating Hughes
after Hughes purchased eleven handguns from Roach's Sporting
Goods in Cambridge, Massachusetts on three separate dates within
a one-week period. SA Murphy suspected that Hughes was
unlawfully transferring those weapons to others. Since Hughes
was a resident of East Bridgewater, Massachusetts, SA Murphy
enlisted the help of Detective Allen of the East Bridgewater
Police Department (EBPD) on June 18, 1999; SA Murphy told Allen
of his suspicions and asked him to gather some background
information on Hughes from EBPD records. Detective Allen
provided Murphy some basic information on Hughes, such as his
address and a copy of his license to carry firearms.
On June 21, 1999, the EBPD stopped Hughes for a traffic
violation while he was driving a car registered to his
grandmother Eva Argrew. The police arrested Hughes for driving
on a suspended license, and then searched and towed the car.
During the search the police recovered a handgun, an empty
magazine clip, and an address book. Detective Allen then
photocopied the address book and gave a copy to SA Murphy.
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Within a few days of receiving the address book Murphy searched
for information on the people and numbers listed in the book and
later ran criminal record checks and drivers license checks on
various individuals. In early July 1999, Murphy had an ATF
intern run the phone numbers found in the address book through
a computerized database. The intern then annotated the copy
with available subscriber information and returned it to Murphy.
The address book contained the names of various
individuals who would later become relevant to Murphy's
investigation. However, Murphy also interviewed individuals who
seem to have no connection to the address book who provided
information leading to the discovery of the suppressed
witnesses. The problem in evaluating the district court's
application of the "fruits" doctrine to the two suppressed
witnesses is that substantial information that led to the
witnesses does not depend on the address book but, in other
respects, there are connections between the address book and the
suppressed witnesses or to information that could have
contributed to the discovery of those witnesses.
Megan Clancy. On the one hand, Clancy's identification
can be traced through a path that does not involve the address
book. Specifically, on July 15, 1999, Murphy and Allen
interviewed Hughes' grandmother, Eva Argrew, who owned the car
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Hughes was driving when arrested. She stated that Gina Holyoke
previously lived with Hughes, and telephone records obtained
through grand jury subpoenas confirmed the connection. On
February 10, 2000, Murphy interviewed Holyoke, who mentioned
John Knapp as a Hughes associate and Megan Clancy as Knapp's
girlfriend who knew Hughes well. Murphy then promptly
interviewed Clancy. Neither Argrew nor Holyoke are listed in
the address book.
On the other hand, the address book had an entry for
"Megean Pager," and when Murphy ran criminal record checks on
address book names in June 1999, he found John Knapp had a
record and was listed as subject to a civil restraining order
taken out by Megan Clancy. Murphy then ran record checks on
Clancy.
Heather Caisse. During the interview on July 15, 1999,
Hughes' grandmother mentioned that Hughes had lived with a
friend named "Joe" in a tenement building on Garfield Street.
On August 23, 1999, Murphy and Allen interviewed Hughes' mother
and brother, who informed them that Hughes had resided on
Garfield Street in Brockton with "Joe Caise" a longtime friend.
Holyoke in February 2000 also mentioned Joe Caisse as a Hughes
associate. Shortly thereafter, Murphy ran a Registry of Motor
Vehicles record check and found an entry for "Joseph Caisse" in
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Brockton. In May 2000, through a criminal record check, Murphy
found that Heather Caisse of the same Brockton address had a
restraining order against Joe Caisse, and a month later Murphy
interviewed Heather Caisse about Hughes. None of the
intermediate witnesses--including, Eva Argrew, Hughes' mother
and brother, and Gina Holyoke--are listed in the address book.
However, once again there are links between the address
book and Heather Caisse. There is an entry for "Heather and
Kids" (albeit with an old, no longer used telephone number).
There are also entries for "Joe Case" and "Joe Cassi" which
Murphy admittedly used for an unsuccessful record check in June
1999. Thus, there were clues to Heather Caisse even though she
was not located and interviewed until June 2000 following the
May 2000 criminal record check of Joe Caisse.
This is hardly a complete description of all of the
steps in the investigation but it illustrates the basic pattern.
It led the district court to conclude not only that the address
book was used throughout the investigation but also that it
played a role in the discovery of Megan Clancy and Heather
Caisse. This finding is Hughes' main counter to the
government's first argument on appeal which is that both
witnesses were discovered entirely through independent sources
and are not to be treated as fruits of the unlawfully used book.
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See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392
(1920).
The district court's finding is reviewed only for clear
error. See United States v. Cruz, 156 F.3d 22, 26 (1st Cir.
1998). Although the government points to independent paths as
to how it found both witnesses, the possibility remains that the
interest in or access to those witnesses was reinforced or aided
by information in the address book. The facts set forth above
permit the inference and, under the standard of review favorable
to Hughes, we cannot overturn the district court's finding of a
causal connection.
The government's stronger claim is based on the
attenuation doctrine. Under Supreme Court precedent, the
weakness of the causal connection, delay in discovery, and lack
of flagrancy in the violation and like considerations may
persuade a court that--even though some causal link may exist--
a remote "fruit" should not be suppressed. See United States v.
Crews, 445 U.S. 463, 471 (1980); Brown v. Illinois, 422 U.S.
590, 603-04 (1975). The Court has been especially reluctant to
suppress such fruits where they are not objects or documents but
live witnesses who could testify voluntarily and cast light on
a range of issues. United States v. Ceccolini, 435 U.S. 268,
275-78 (1978) (concluding that "since the cost of excluding
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live-witness testimony often will be greater, a closer, more
direct link between the illegality and that kind of testimony is
required").
In applying this rather amorphous test of attenuation,
see 5 LaFave, Search and Seizure § 11.4(a), at 235 (3d ed.
1996), we do not defer to the district court. The district
court rejected attenuation by saying that the unlawfully used
primary evidence (here, the address book) could play only a
negligible role if suppression of the witnesses were to be
avoided. We do not find so grudging a standard in the Supreme
Court cases and, thus, we make our own determination as to
attenuation, given that the facts after four days of hearings
are as clear as they are likely to be.
In our view, a number of factors make this a proper
case in which to apply the doctrine. First, accepting that the
address book played some role in discovering the two witnesses,
that role is filled with uncertainties in degree and kind; and
the government can at least trace paths to the evidence that do
not go through the address book. Further, the paths begin with
sources of evidence--Hughes' grandmother, mother, and brother--
known to the government prior to the discovery of the notebook.
Second, there is a considerable time gap between the
copying of the address book in June 1999 and the discovery of
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the witnesses in question in February and June 2000,
respectively. This is not because the police delayed in their
use of the notebook but, at least in part, because certain of
the address book clues proved cold and other sources
(interviews, criminal record checks, telephone records)
significantly helped identify and locate the two witnesses.
Although Hughes makes much of the fact that Murphy periodically
re-examined the address book, we do not see that re-examination
could have contributed very much, if anything, to locating these
witnesses. The address book did not contain a clear reference
to Megan Clancy or Heather Caisse, much less a current telephone
number or address. Nor did it contain the correct spelling of
"Caisse."
Third, the possible contribution of the address book
in directing the investigation towards these witnesses seems
weak in comparison to the role of Hughes' family members and
other sources. The notebook contained nothing to indicate that
either Megan Clancy or Heather Caisse would be important persons
to contact. Although a criminal record check on address book
names in June 1999 may have sparked some interest in John Knapp
and, indirectly Clancy, Murphy apparently never sought to
contact Clancy until, in February 2000, Holyoke encouraged him
to do so, saying Clancy knew Hughes well. The criminal record
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check on address book names in June 1999 did not turn up any
information about Joe Caisse, and SA Murphy did not interview
Heather Caisse until roughly one year later, after four separate
witnesses mentioned Joe Caisse's close relationship with Hughes
and Murphy ran a second record check.
Fourth, the causal chain involves a series of third
parties having no apparent connection to the address book, cf.
United States v. Finucan, 708 F.2d 838, 843-44 (1st Cir. 1983)
(suggesting that the intervening role of third parties should be
considered), and the evidence sought to be suppressed is,
itself, live witness testimony. There is no indication in the
record that any of the persons interviewed were pressured, or
that the notebook played any role in inducing their statements.
Indeed, the record suggests that Clancy took some initiative in
coming forward. Holyoke offered to give Murphy's telephone
number to Clancy, and Clancy contacted him that same day.
Admittedly, the copying and examination of the address
book appears to have been part of a deliberate search for
potential witnesses, and this factor weighs against admission of
the witness testimony in question. Nonetheless, taking into
account the other factors articulated above, the link between
the address book and the remote witnesses strikes us as
attenuated. In the balance between deterring unlawful conduct--
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here the unlawful use of the address book--and suppressing
pertinent testimony, there is little deterrence to be added and
a substantial cost to law enforcement in preventing the
testimony of Megan Clancy and Heather Caisse. See 5 LaFave,
supra, § 11.4(a), at 235 (suggesting that the question of
attenuation should be viewed from the perspective of the
exclusionary rule's function of deterrence).
The district court's order is vacated and the matter
remanded with directions that the testimony of Megan Clancy and
Heather Caisse not be suppressed as the fruit of an unlawful
seizure of the address book.
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