United States v. Beckett

United States Court of Appeals
For the First Circuit

No. 02-1876

UNITED STATES,

Appellee,

v.

DUNN M. BECKETT, A/K/A DUNN GIRARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

David A. Levy for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Gerard B. Sullivan, Assistant United States Attorney, and
Margaret Curran, United States Attorney, were on brief, for
appellee.

February 25, 2003
 STAHL, Senior Circuit Judge. After a jury trial,

defendant-appellant Dunn Beckett was convicted of one count of

possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5841,

5861(d), and 5871 (2002). Police officers discovered the shotgun

in plain view at Beckett’s residence while executing a state court

warrant seeking evidence of Beckett’s involvement in two murders.

Beckett now appeals from the denial of his pretrial motion to

suppress the weapon and the denial of his motion for acquittal.

I. Background

A. Procedural history

On August 15, 2001, a Rhode Island magistrate issued a

warrant permitting law enforcement to search Beckett's residence in

Cumberland, Rhode Island. The search warrant authorized officers

to search for (1) the weapon used in the second murder, a .38

caliber pistol; (2) paperwork and other items relating to a .38

caliber pistol; and (3) notebooks or personal papers "recording the

whereabouts" of Beckett in 1992 and 1995, when the two murders

occurred.

The search warrant application included a seventeen-page

affidavit detailing Beckett’s alleged role as the triggerman in

the two murders. The affidavit, which is described more

thoroughly infra, recited the confession of James St. Jacques that

he personally saw Beckett fire the rifle used in the first murder

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and the pistol used in the second murder, as well as statements

from other witnesses, autopsy and ballistics evidence, and record

checks.

On August 16, 2001, federal and state officers executed

the search warrant. In Beckett’s garage, the sawed-off shotgun

was discovered in plain view.

On September 19, 2001, a federal grand jury in the

District of Rhode Island returned a one-count indictment charging

that on or about August 16, 2001, Beckett possessed a sawed-off

shotgun in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. On

November 21, 2001, Beckett moved to suppress the shotgun, claiming

that, inter alia, the search warrant was not supported by probable

cause.

After hearing argument and taking evidence, the district

court determined that there was probable cause justifying a search

for a .38 caliber pistol and any paperwork relating to such a

pistol.1 It stated that "[d]espite the great length of time since

the [second] murder was committed, there was still sufficient

probable cause that the defendant committed the murder, and that

he may well still have evidence which supports the criminal

charge." Alternatively, the court held that the warrant came

under the good-faith exception to the exclusionary rule announced

1
The court did not reach the issue of the validity of the
warrant with regard to the notebooks.

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in United States v. Leon, 468 U.S. 897 (1984): "There’s nothing to

indicate that there was any bad faith here. And there was nothing

that would indicate to any law enforcement officer that the

warrant was so defective that no reasonable person would rely on

that."

Following a two-day jury trial in March, 2002, Beckett

was convicted of possessing the sawed-off shotgun, and on July 9,

2002, the court sentenced him to 33 months of imprisonment.

B. Search warrant affidavit

The affidavit in support of the search warrant

application was signed by Donald R. Beech, a detective with the

Pawtucket, Rhode Island Police Department. It stated the

following:

On August 13, 1992, a jogger found the body of Robert J.

Laforest in a wooded area in Smithfield, Rhode Island. An autopsy

revealed that he had been shot four times with a .222 or .223

caliber gun. Laforest’s mother reported that she had last seen

him on August 11, 1992, when he said he was going to visit a

friend named James St. Jacques.

On September 15, 2000, St. Jacques confessed that he had

paid Beckett $15,000 to murder Laforest. St. Jacques explained

that he used Paul Ferguson as an intermediary to negotiate the

contract killing with Beckett, paying Ferguson $9,000 for his role

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as middleman. Beckett, who was then living in California, flew

into Rhode Island shortly before the murder. St. Jacques and

Ferguson met Beckett at the airport and took him to the Days Inn

Hotel at India Point in Providence, where he stayed during the

visit. On August 11, 1992, the day of the murder, Beckett drove

St. Jacques's car to a wooded area in Smithfield, while St.

Jacques remained at his own house. St. Jacques then phoned

Laforest and accompanied him to the wooded area where Beckett was

waiting. When Laforest got out of the truck, Beckett shot him

several times with Laforest's AR 15 rifle (which had been left for

safekeeping with St. Jacques). Later that day, St. Jacques took

Beckett to the airport and gave him $7,500, the first half of the

$15,000 fee. Ferguson, the middleman, delivered the remaining

$7,500 to Beckett during an August 20, 1992 trip to California.

Also on September 15, 2000, St. Jacques made an initial

confession that three years after the murder of Laforest, Beckett

also killed Ferguson. He said that between the two murders,

Ferguson was talking too much about the Laforest murder and was

demanding money from Beckett and St. Jacques. St. Jacques said

that he saw Beckett twice on the day of Ferguson’s murder, October

19, 1995: once early in the day, and again that night at a local

bar. At the bar, Beckett told St. Jacques, "I shot him and he

will never be found." As reasons for killing Ferguson, Beckett

complained to St. Jacques that Ferguson had told Beckett’s former

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roommate that Beckett had killed a man in Rhode Island, and that

this former roommate now was attempting to blackmail him. When

Beckett later discovered that Ferguson’s family had reported that

Ferguson was last seen on Wednesday, October 18, 1995, the day

before the murder actually took place, Beckett told St. Jacques

that the family’s inaccurate report had given him an alibi because

Beckett was at work as a prison guard on October 18 and had taken

the day off on October 19.

On August 1, 2001, investigators found Ferguson’s body

wrapped in plastic, buried five feet under a concrete slab in

Rehoboth, Massachusetts, on property that had previously belonged

to St. Jacques. An autopsy disclosed that Ferguson had been shot

at least four times with a weapon "consistent with a .380 caliber

handgun (possibly a Llama brand)."

On August 3, 2001, two days after Ferguson’s body was

exhumed, St. Jacques elaborated on his earlier confession. This

time, he said he had actually witnessed Beckett kill Ferguson and

that he had helped him dispose of the body. According to St.

Jacques, in October 1995, Beckett and Ferguson visited St. Jacques

at his Rehoboth house. After Beckett accused Ferguson of

"shooting off his mouth," the two got into a fight. During the

fight, Beckett pulled out a black semiautomatic handgun and shot

Ferguson at least three times and struck him with the butt of the

gun. Beckett and St. Jacques then wrapped Ferguson’s body in

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plastic and dumped it into a hole that had been dug for a well.

Beckett kept the gun after the murder. About a year and a half

later, St. Jacques hired two men to pour concrete over the site,

to make a foundation for a barn that was never built.

The affidavit set forth information corroborating

multiple elements of St. Jacques’s confession. As to the first

murder, corroboration included St. Jacques's wife's personal

observations of the first murder preparations; confirmation that

Laforest owned an AR 15 rifle, which takes .223 caliber

ammunition; records and witness statements concerning Beckett's

travel from California and hotel stay; and confirmation of

Ferguson's payment to Beckett in California. Corroboration of St.

Jacques's account of the second murder included, inter alia,

witnesses' confirmation of the alleged blackmail and dispute with

Ferguson; Beckett's employment records showing that Beckett had

been at work on October 18, 1995, and that he was off-duty on

October 19, 1995; and several witnesses' statements that Beckett

"regularly carried a handgun."

Finally, the affidavit supporting the warrant

application also addressed Beckett's record keeping. Records and

witnesses indicated that by the time of the second murder, in

October, 1995, Beckett resided in Lincoln, Rhode Island, and he

worked as a guard at the Wyatt Correctional Facility. He was

still employed at the prison at the time of the search. Beckett

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later moved to 783 High Street in Cumberland, Rhode Island, and

then, at some point before the search, moved to 58 Edgewood Drive,

also in Cumberland.

In February, 2001, an "ordinary citizen" with no

criminal record who had known Beckett for more than two years

reported that he had been inside the 783 High Street address and

was "familiar with [Beckett's] habits and practices." The witness

said that Beckett kept small "spiral type" notebooks in which he

recorded "his whereabouts including days worked and days off,"

that these notebooks dated back to 1992, and that the witness had

seen one notebook in particular that "records his whereabouts in

1995." The witness described Beckett as a "'pack rat' who saves

everything." The affidavit stated, "Shortly after the witness saw

these notebooks at the High Street address the witness became

aware of the fact [that] Beckett had moved his personal

possessions to his new home at 58 Edgewood Drive in Cumberland,

Rhode Island." The witness also accurately described the outside

of 58 Edgewood Drive.

Also in February, 2001, a second witness who had known

Beckett for at least two years and was familiar with many of his

habits reported that Beckett "fastidiously recorded his

whereabouts" in a "spiral type" notebook that the witness had seen

and that the witness was "sure that the book reflects work

schedules and days off for 1995." The affidavit stated, "This

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witness indicated that the books along with other personal

belongings have recently been moved to 58 Edgewood in Cumberland."

II. Discussion

A. Probable cause

The sawed-off shotgun upon which Beckett's conviction

was based was not within the scope of the search warrant. The

government contends that it was lawfully seized, however, pursuant

to the plain view doctrine. In Horton v. California, 496 U.S. 128

(1990), the Supreme Court defined the contours of this doctrine,

holding that "an essential predicate to [the seizure of evidence

not within a warrant's purview is] that the officer did not

violate the Fourth Amendment in arriving at the place from which

the evidence could be plainly viewed." Id. at 136. We apply de

novo review to the district court's ultimate conclusion that the

elements of the doctrine have been satisfied. United States v.

Hamie, 165 F.3d 80, 82 (1st Cir. 1999).

Beckett contends that the officers were not lawfully

present in his residence when they discovered the shotgun because

the search warrant was not supported by probable cause. A warrant

application must demonstrate probable cause to believe that (1) a

particular person has committed a crime (the "commission"

element), and (2) enumerated evidence of the offense will be found

at the place to be searched (the "nexus" element). United States

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v. Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir. 1996). In

determining the sufficiency of an affidavit supporting a search

warrant, we consider whether the "totality of the circumstances"

stated in the affidavit demonstrates probable cause to search the

premises. United States v. Khounsavanh, 113 F.3d 279, 283 (1st

Cir. 1997). We examine the affidavit "in a practical,

common-sense fashion and accord considerable deference to

reasonable inferences the [issuing judicial officer] may have

drawn from the attested facts." United States v. Barnard, 299

F.3d 90, 93 (1st Cir. 2002) (quoting Zayas-Diaz, 95 F.3d at 111)

(internal quotation marks omitted).

"In reviewing a denial of a suppression motion, the

district court's ultimate legal conclusion, including the

determination that a given set of facts constituted probable

cause, is a question of law subject to de novo review."

Khounsavanh, 113 F.3d at 282 (citing Ornelas v. United States, 517

U.S. 690, 698-99 (1996)). The district court's findings of

historical fact are reviewed for clear error. Id.

If probable cause is lacking, the evidence uncovered

during the execution of the search warrant normally must be

excluded from the case against the defendant. United States v.

Brunette, 256 F.3d 14, 19 (1st Cir. 2001). In Leon, the Supreme

Court carved out an exception to the exclusionary rule, holding

that "evidence obtained in objectively reasonable reliance on a

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subsequently invalidated search warrant" need not be suppressed.

Suppression is still appropriate, however, if the warrant is based

on an affidavit "so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable."

468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-611

(1975) (Powell, J., concurring in part)).2

Beckett's primary argument is that the search warrant

failed to establish probable cause to believe that the items

sought -- the written records and the firearm -- were located at

his residence.3 He takes issue with the supporting affidavit's

reliance on the two unnamed informants who stated that the 1992

and 1995 notebooks were located at his new residence, contending

that neither witness personally observed the notebooks there and

that there was little information that would help evaluate the

witnesses' reliability. Moreover, Beckett complains that there

2
In Leon, the Court enumerated several other circumstances
under which application of the good faith exception is
inappropriate. Id. at 923. None of them is relevant here.
3
In his brief, Beckett makes passing reference to an argument
that the affidavit in support of the search warrant failed to
establish probable cause that he had committed a crime. He did not
develop this argument, however, but rather focused on the nexus
element of the test for probable cause. The government urges us to
consider the commission element argument waived. See United States
v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) ("We have
steadfastly deemed waived issues raised on appeal in a perfunctory
manner, not accompanied by developed argumentation."). We need not
decide this, as St. Jacques's confession as well as other
information in the affidavit provides ample support for probable
cause to believe that Beckett had committed the murders.

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was no probable cause to believe that the firearm used in the 1995

murder would still be at his residence six years later.

We agree that the application's support of a nexus

between evidence of the murders and Beckett's residence is less

than overwhelming. Considering the totality of the circumstances,

however, we think that the affidavit established the nexus element

sufficiently to pass muster under Leon.4 The record does not

contain any indication that the officers executing the warrant did

so in bad faith, and the affidavit was not "so lacking in indicia

of probable cause as to render official belief in its existence

entirely unreasonable." See Leon, 468 U.S. at 923. First, the

unnamed witnesses' statements indicating that the notebooks had

been moved to Beckett's current residence corroborate each other.

Second, the information that Beckett was a "pack rat" supported

the possibility that one or more of the specified search objects

would have been retained over the years and moved to Beckett's

current residence. This is particularly true of the notebooks,

which can reasonably be viewed as items created for preservation.5

Cf. United States v. Bucuvalas, 970 F.2d 937, 941 (1st Cir. 1992)

4
Accordingly, we need take no position on whether the warrant
application was supported by probable cause. See, e.g., United
States v. Owens, 167 F.3d 739, 744-45 (1st Cir. 1999) (bypassing
probable cause inquiry and affirming ruling on motion to suppress
based on Leon).
5
Indeed, the search yielded a notebook recording Beckett's
whereabouts in 1995, which was introduced into evidence at the
hearing on Beckett's motion to suppress, but not at trial.

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(abrogated on other grounds, Cleveland v. United States, 531 U.S.

12 (2000) (business records created several years before search

were deemed to have "enduring utility," thus supporting nexus

determination)). Third, one unnamed witness personally viewed the

notebooks at Beckett's residence on High Street in Cumberland,

where they had been moved from his earlier residence in Lincoln,

and both unnamed witnesses indicated that Beckett later moved his

personal possessions to his current home at 58 Edgewood Drive.

Accordingly, the officers could fairly infer that, having moved

the notebooks once, Beckett would have moved them also to his

current address.

Furthermore, although the six-year lag between the 1995

murder and the search somewhat diminishes the likelihood that

Beckett would have retained the murder weapon, the fact that the

body of the victim was well-hidden could have alleviated the need

to dispose of the weapon. Cf. 2 Wayne R. LaFave, Search and

Seizure § 3.7(d) (3d ed. 1996) ("Where the object of the search is

a weapon used in the crime . . . the inference that the item[]

[is] at the offender’s residence is especially compelling, at

least in those cases where the perpetrator is unaware that the

victim has been able to identify him to the police."). St.

Jacques's statement that Beckett retained the gun after the murder

and the statements of several witnesses that Beckett regularly

carried a handgun lent further support. Accordingly, we conclude

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that the officers were lawfully present in Beckett's residence

under Leon.

Beckett also argues that the search warrant was an

"indicia warrant" seeking "mere evidence" of the murders rather

than "fruits or instrumentalities" of crime, heightening the

standard for probable cause. We have long since abandoned the

legal distinction between mere evidence and instrumentalities. We

now require only that there is reason to believe that the

particular evidence to be seized "will aid in a particular

apprehension or conviction." Warden v. Hayden, 387 U.S. 294, 301,

307 (1967). Here, journal entries reflecting Beckett’s

whereabouts or activities on or around the time of the murders

would have been of obvious evidentiary significance, especially in

light of St. Jacques's statement that Beckett was considering an

alibi defense.

Finally, Beckett contends that even if the warrant was

supported by probable cause, it was overly broad and vague, thus

constituting an unconstitutional general warrant. He maintains

that the warrant "gave the agents absolute discretion to search

every single piece of paper belonging to Mr. Beckett and [his

fiancee] Tracy Carr." We disagree.

The Fourth Amendment forbids general warrants so as to

prevent law enforcement officers from rummaging through an

individual's belongings at will. Andresen v. Maryland, 427 U.S.

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463, 480 (1976). Contrary to Beckett's contention, the warrant

did not provide the agents free rein to search all of his papers.

It was limited to paperwork relating to a .38 caliber pistol and

notebooks or personal papers recording the whereabouts of Beckett

in 1992 and 1995. That agents may have to perform some initial

screening to locate the particularized documents does not render

the warrant unconstitutional.

B. Sufficiency of the evidence

Beckett also contends that he was entitled to acquittal

because the government failed to prove that the sawed-off shotgun

was covered by the statute under which he was convicted.

Specifically, he argues that there was insufficient evidence that

the sawed-off shotgun could "readily be restored to fire" as

required by 26 U.S.C. § 5845(d). We "review all the evidence,

direct and circumstantial, in the light most favorable to the

prosecution, drawing all reasonable inferences consistent with the

verdict, and avoiding credibility judgments, to determine whether

a rational jury could have found the defendant guilty beyond a

reasonable doubt." United States v. Baltas, 236 F.3d 27, 35 (1st

Cir.), cert. denied, 532 U.S. 1030 (2001).

26 U.S.C. § 5861(d) provides, in relevant part, that

"[i]t shall be unlawful for any person . . . to receive or possess

a firearm which is not registered to him in the National Firearms

Registration and Transfer Record." The term "firearm" includes,

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inter alia, "(1) a shotgun having a barrel . . . of less than 18

inches in length; [and] (2) a weapon made from a shotgun if such

weapon as modified has an overall length of less than 26 inches or

a barrel . . . of less than 18 inches in length." Id. § 5845(a).

The statutory definition of a shotgun includes a "weapon which may

be readily restored to fire a fixed shotgun shell." Id. §

5845(d).

A review of the trial record convinces us that the

government adduced sufficient evidence that the shotgun found

during the search of Beckett's residence satisfied the statutory

requirements. When officers searched Beckett’s garage, they found

in a gun locker a substantially complete shotgun: it had a stock,

pistol grip and receiver, lacking only a barrel. The officers

found the matching barrel elsewhere in the garage, within fifteen

feet of the gun locker. The barrel had been cut down from its

original length. An agent was able to screw the sawed-off barrel

into the receiver portion of the gun without any difficulty in, at

most, a few minutes. At trial, an agent demonstrated for the jury

that he could assemble the gun in less than thirty seconds.

Moreover, prior to trial, the assembled sawed-off shotgun was

test-fired in a laboratory and determined to be functional.

Beckett bases his argument on a purported ambiguity in

the trial testimony of crime laboratory technician Edward Downing,

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who had performed the tests on the shotgun. Downing testified as

follows:

Q. Do you know if that shotgun was measured at
your laboratory?

A. Yes, it was.

Q. And what are the dimensions of the weapon?

A. The overall length is 25 inches of Item 1,
and the barrel had been -- is a length of 14
and one quarter inches.

Q. Was that weapon test-fired at your
laboratory?

A. The item was test-fired without
malfunction.

Q. Does that mean it fired?

A. That means it will fire.

Q. It worked?

A. Yes, sir.

Any ambiguity as to the gun's hypothetical versus actual firing

capacity in the answer "it will fire" was resolved in the

subsequent exchange revealing that the shotgun "worked." Taken as

a whole, Downing's testimony was sufficient to establish that the

assembled sawed-off shotgun fired when tested. This testimony, in

conjunction with the other evidence offered at trial, supported

the jury's conclusion that the shotgun found at Beckett's

residence could be "readily restored to fire a fixed shotgun

shell." 26 U.S.C. § 5845(d).

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 As a final matter, we note that in his brief, Beckett

apparently relies on the definition of a firearm contained at 18

U.S.C. § 921(a)(3): "any weapon . . . which will or is designed to

or may readily be converted to expel a projectile by the action of

an explosive . . . ." As Beckett was tried under Title 26, not

Title 18, only the former provision's requirements must be

satisfied. In any event, the requirements of the two definitions

are substantially similar; in this case, both are satisfied by the

evidence presented at trial.

The district court, too, used language from Title 18 (as

well as from Title 26) in charging the jury.6 This may have been

due to the fact that the original indictment cited 18 U.S.C.

§ 922(j), which prohibits possession of a stolen firearm. At

trial, this was dropped from the indictment, and the jury

considered only the Title 26 charge. The government points out,

however, that the judgment of conviction below incorrectly states

that Beckett was convicted of violating both 26 U.S.C. § 5861(d)

and 18 U.S.C. § 922(j). Accordingly, we vacate the judgment and

remand to the district court for the sole purpose of correcting

that error in the judgment of conviction. We affirm the district

court in all other respects.

6
Beckett has waived any objection to these instructions by not
presenting it below or on appeal.

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 For the foregoing reasons, we AFFIRM Beckett's

conviction in part and VACATE and REMAND in part for further

proceedings consistent with this opinion.

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