Legal Research AI

United States v. Mancini

Court: Court of Appeals for the First Circuit
Date filed: 1993-11-04
Citations: 8 F.3d 104
Copy Citations
28 Citing Cases

                United States Court of Appeals
                    For the First Circuit
                                         

No. 93-1417

                        UNITED STATES,

                          Appellant,

                              v.

                      SALVATORE MANCINI,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

     [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                                       

                                         

                            Before

               Boudin and Stahl, Circuit Judges,
                                               
                 and Fuste,* District Judge.
                                           

                                         

Craig  N. Moore, Assistant United States Attorney, with whom Edwin
                                                                  
J.  Gale, United States Attorney, Ira  Belkin, Assistant United States
                                         
Attorney,  and Margaret E.  Curran, Assistant United  States Attorney,
                              
were on brief for appellant.
John A. MacFadyen, with whom Richard M. Egbert and Peter  DiBiase,
                                                                 
were on brief for appellee.
                                         

                       November 4, 1993
                                         

                 
*Of the District of Puerto Rico, sitting by designation.

          STAHL,  Circuit Judge.  In this criminal appeal, we
                               

must  decide whether  the Mayor  of  North Providence,  Rhode

Island,   defendant   Salvatore  Mancini   ("Mancini"),   has

standing1  to challenge a  search of the town's archive attic

and  subsequent  seizure  of  the  Mayor's  1987  appointment

calendar.   The  district court  ruled  in Mancini's  favor.2

The government timely  filed this interlocutory appeal.3   We

affirm the district court's ruling.

                              I.
                                

                      FACTUAL BACKGROUND
                                        

          We recount  only those facts  relevant to resolving

the issue  on appeal.   On November  20, 1992,  a grand  jury

indicted  Mancini on one  count of attempted  extortion under

color of  official right, in  violation of 18 U.S.C.    1951.

                    

1.  The inquiry turns, in this case, on whether the defendant
demonstrated a legitimate  expectation of privacy,  see Rakas
                                                             
v.  Illinois,  439 U.S.  128  (1978),  and  we use  the  term
            
`standing'  in  the  present context  as  shorthand  for that
inquiry.   United States  v. Sanchez, 943  F.2d 110,  113 n.1
                                    
(1st Cir. 1991).

2.  After  finding that Mancini  had standing to  contest the
search  and  seizure, the  district  court went  on  to grant
Mancini's  motion to suppress the appointment calendar on the
ground that the affidavit used to acquire  the search warrant
omitted  certain facts which, if disclosed to the Magistrate,
would have demonstrated a lack of probable cause.  On appeal,
the government does not contest this finding.  Therefore, the
only issue before us is the standing question.

3.  In relevant part, 18 U.S.C.    3731 provides:  "An appeal
by the United States  shall lie to a court of  appeals from a
decision  or order  of  the  district  court  suppressing  or
excluding evidence . . . ."

                             -2-
                              2

According  to  the  indictment,  in  November  1987,  Mancini

accepted  a $2,000  payment from  real  estate developers  in

exchange   for  the  issuance   of  certain  certificates  of

occupancy for residential apartments owned by the developers.

          Prior   to  the   indictment,  in  the   course  of

investigating  the  allegations  against   Mancini,  the  FBI

attempted to  obtain the relevant certificates  of occupancy.

At  approximately 4:30  p.m.  on October  29,  1992, two  FBI

agents,  Timothy O'Keefe  and Charles  Prunier,  went to  the

North Providence Town  Hall to interview the  town's building

inspector, Albert  DiPetrillo, and  to serve  him with  grand

jury   subpoenas  calling  for  his  testimony  and  for  the

production of  the eleven  allegedly illegal certificates  of

occupancy.     The  subpoenas  required  production   of  the

certificates by 9:30 the following morning. 

          DiPetrillo told the  agents that Town Hall  records

were kept  in a room  known as the  archive attic.   Both the

maintenance  and personnel departments had keys to the attic.

At  DiPetrillo's  direction,  another town  employee,  Robert

Hennessey, obtained the keys to  the attic from a maintenance

worker  and accompanied  the two  agents  through two  locked

doors and into the attic.  The attic, which is above and runs

the length of  the Town Hall, contained boxes  of records and

miscellaneous equipment, none of which appeared to the agents

to be organized in any particular manner.

                             -3-
                              3

          When  the  three  men   first  entered  the  attic,

Hennessey suggested  to the agents  that they might  find the

certificates in boxes of Building Department  records located

near the door through which they had just passed.  An initial

examination  of those boxes did not uncover the certificates.

Hennessey then informed  the agents that there were two other

rooms in the attic containing  town records.  After a cursory

examination  of the other  rooms indicated that  only records

from before 1940 were present,  the three men returned to the

room they had entered first.   The agents again began looking

for  the certificates  in  the boxes  located  in this  room.

According  to  Hennessey's   testimony  at  the   suppression

hearing,  he directed  the agents  to a  particular stack  of

boxes.   Agent Prunier,  however, "wandered  off" in  another

direction.  At some point, Prunier came across a box labelled

"Mayor's Appointment  Books."   The  flaps  on the  box  were

turned down to  cover the top of  the box, but they  were not

interlocked.  Prunier  lifted the flaps and saw  that the box

did, in fact, contain appointment books, including a book for

1987.4   Prunier browsed through  the 1987 book  and replaced

it in the box.   Meanwhile, Agent O'Keefe located the sought-

after certificates  of occupancy in  one of the boxes  in the

                    

4.  The appointment  book here at  issue is a  rather typical
red-covered  office calendar, with  one page devoted  to each
day  of  1987.   The  hard cover  reads  "Appointments," with
"1987"  appearing  underneath.   The  inside  front  cover is
denoted "1987 Half Hourly Standard Appointment Diary."

                             -4-
                              4

area  that Hennessey had  originally suggested.   This search

lasted approximately two hours.

          On November 16, 1992, the FBI applied for a warrant

to search  the archive attic  and seize the  1987 appointment

calendar.  A Magistrate Judge  signed the warrant, and it was

executed  the  same   day.    The  calendar   was  retrieved.

According  to the  government,  the  calendar is  significant

because of  an entry made  on November  24, 1987, a  few days

before  the  alleged illegal  payoff and  one day  before the

certificates  were issued.  That entry indicates that Mancini

had a  noon appointment with  Art Aloisio, who,  according to

Kenneth Stoll,  arranged the  meeting  where Stoll  allegedly

made the payoff to the Mayor.5

          Prior  to  trial,  Mancini moved  to  suppress  the

appointment calendar because 1) the agents' initial discovery

of the  calendar  was the  result of  a warrantless,  illegal

search,  and 2)  the  later search,  executed  pursuant to  a

warrant, was both the fruit  of the first, illegal search and

                    

5.  The calendar entry took on greater importance in the face
of  Stoll's  credibility problems.    During  the suppression
hearing,  F.B.I. Agent Joyce,  who signed the  search warrant
affidavit, conceded  that Stoll, who was to  be a prosecution
witness, had  lied on  several occasions  to  the F.B.I.  and
United States Attorney's office.  In fact, the government had
rescinded  a  non-prosecution  agreement  it  had  previously
reached  with  Stoll  because  it  believed  that  Stoll  had
breached his obligation to speak truthfully.  None of Stoll's
credibility problems were divulged to the Magistrate, leading
to the portion of the district court's suppression order that
is not here appealed.

                             -5-
                              5

the  product  of   a  misleading  affidavit.     Following  a

suppression  hearing,6  the district  court first  found that

Mancini  had  standing  to contest  the  search  and seizure.

Addressing  the merits,  the  court then  rejected  Mancini's

claim  that the agents'  conduct in discovering  the calendar

was   illegal.    The  court  concluded,  however,  that  the

subsequent search warrant  should never have been  issued due

to  the   government's  failure  to  disclose   the  negative

information concerning Stoll.   Therefore, the court  granted

the motion  to suppress.   As noted  earlier, the  government

only challenges the court's standing determination.

                             II.
                                

                      STANDARD OF REVIEW
                                        

           In  reviewing  the  district  court's  suppression

order, we uphold  findings of fact, including  mixed fact/law

findings,  unless they  are clearly  erroneous.   See  United
                                                             

States v. Carty, 993 F.2d 1005, 1008 (1st Cir. 1993) (factual
               

                    

6.  At the  suppression hearing, Prunier, Joyce,  and Mayoral
Chief  of Staff Leo J. Perrotta were called to testify by the
government.   Hennessey was  the only witness  called by  the
defense.  Mancini did not testify, but submitted an affidavit
stating that in 1987 he kept a daily calendar diary which was
"maintained as  a personal  rather than  a public  document,"
that  the diary  was "kept  in  a closed  box marked  Mayor's
Appointment  Books" located in  the locked archive  room, and
that he instructed  his Chief  of Staff that  "no one was  to
have access to any of  my boxes, including the box containing
the calendars, without  permission."  Mancini  further stated
that "[a]t all times, I believed that my boxes, including the
one  containing the calendars, were my private property, were
under my control, and were to  be left alone by all  persons,
including town personnel."

                             -6-
                              6

findings); United States v.  Rodriguez-Morales, 929 F.2d 780,
                                              

783 (1st Cir. 1991)

(mixed findings),  cert. denied, 112  S. Ct. 868 (1992).   We
                               

review  conclusions of law de novo.  Carty, 993 F.2d at 1008.
                                          

The legal standard used by the district court is also subject

to plenary review.  Sanchez, 943 F.2d at 112.  
                           

          It  is well settled  that a defendant  who fails to

demonstrate a legitimate  expectation of privacy in  the area

searched or the item seized will not have "standing" to claim

that an illegal search or  seizure occurred.  Rakas, 439 U.S.
                                                   

at 138-48; Sanchez, 943 F.2d at 112-13. In order to make such
                  

a  demonstration, the defendant  must show both  a subjective

expectation  of  privacy  and   that  society  accepts   that

expectation  as   objectively  reasonable.     California  v.
                                                         

Greenwood, 486 U.S. 35, 39 (1988); Katz v. United States, 389
                                                        

U.S. 347, 361 (1967)(Harlan, J.  concurring).  The burden  of

proving a  reasonable expectation  of privacy  lies with  the

defendant.   Sanchez, 943  F.2d at 113.   The  defendant must
                    

demonstrate a privacy expectation in both the item seized and

the place searched.  United  States v. Salvucci, 448 U.S. 83,
                                               

93 (1980) ("[W]e  must . . . engage in a conscientious effort

to apply  the Fourth Amendment  by asking not  merely whether

the defendant had a possessory interest in the  items seized,

but  whether he  had an  expectation of  privacy in  the area

searched.")(internal  quotations omitted);  United States  v.
                                                         

                             -7-
                              7

Aguirre,  839 F.2d 854, 856 (1st Cir. 1988)("Before embarking
       

upon  the merits  of  a  suppression  challenge,  a  criminal

defendant must  show that he had a  reasonable expectation of

privacy in  the area  searched and in  relation to  the items

seized.").

                             III.
                                 

                          DISCUSSION
                                    

          In determining that Mancini had standing to contest

the  search,  the   district  court  first  ruled   that  the

appointment book was  not a public record.   United States v.
                                                          

Mancini, No. 92-117B, slip op.  at 4 (D.R.I. April 12, 1993).
       

Then, the  court concluded that  the act of placing  the book

into a  box "does  not remove the  document from  the mayor's

files."    Id. Finally,  the  court  stated  that it  is  not
             

"significant that the  record was not  found in the  physical

confines  of the  Mayor's  office.   It  was  where it  could

expected [sic] to be, a 1987 document, in the archives."  Id.
                                                             

at  4-5.   On this  appeal,  the government  argues that  the

district court erroneously found that the calendar was a non-

public document, and  further contends that Mancini  did not,

and  could  not,  demonstrate a  privacy  expectation  in the

archive attic.  We address the two issues in turn.    

A.  The Mayor's Appointment Calendar
                                    

          In finding that Mancini's appointment calendar is a

"non-public  record,"  the   district  court  analogized  the

                             -8-
                              8

calendar to the personal effects located in the desk and file

cabinets of a public employee in O'Connor v. Ortega, 480 U.S.
                                                   

709 (1987). 

          In  Ortega,  the  Supreme  Court  ruled  that   the
                    

defendant, Dr. Ortega had a reasonable expectation of privacy

in his desk and file cabinets, both of which  were located in

his office.   Id. at 718.7   The Court  found significant the
                 

personal nature of  the items in the desk  and file cabinets,

"which  included  personal   correspondence,  medical  files,

correspondence  from  private  patients  unconnected  to  the

Hospital,  personal  financial  records,  teaching  aids  and

notes, and  personal gifts  and mementos."   Id.   The papers
                                                

were not exclusively private, however, as was demonstrated by

the testimony  of  one  of  the investigators  who  tried  to

separate  the personal items from  the public documents.  Id.
                                                             

at 713  ("`Trying to  sort State from  non-State, it  was too

much to do, so I gave it up and boxed it up.'").

          Like the papers contained in Dr. Ortega's files and

desk,  the Mayor's personal  and public calendar  entries are

intermingled.    In  many  instances,  it  is  impossible  to

classify an appointment as one or the other.  Names of public

officials alone, jotted down next to a preprinted hour of the

                    

7.  Before addressing the specifics of Dr. Ortega's case, the
Court first rejected  the Solicitor  General's position  that
public employees can  never have a reasonable  expectation of
privacy in  their place  of work.   Ortega, 480 U.S.  at 717.
                                          
The government here makes no such claim.

                             -9-
                              9

day, do  not  reveal the  context  of the  intended  meeting.

Thus, we are not persuaded  by the government's argument that

we  should resolve this  issue mathematically, by calculating

and comparing the number of facially public versus non-public

appointments contained  in the calendar.   Even if  the ratio

could be divined, we believe the proper inquiry to  be one of

composite nature,  not  number.   A perusal  of the  calendar

reveals  that many  of the  Mayor's entries were  intended to

remind   him   of  such   clearly   personal   activities  as

christenings,  bachelor  dinners,   doctor  appointments  and

weddings;  some even concern his personal plans for holidays.

We are  persuaded that these entries make  the overall nature
                                                             

of  the  calendar  sufficiently   non-public  to  justify   a

legitimate expectation of privacy.  

          Moreover, although Mancini's secretaries had access

to the  appointment calendar,8  shared access  to a  document

does   not  prevent  one   from  claiming   Fourth  Amendment

protection in that  document.   See Mancusi  v. DeForte,  392
                                                       

U.S.  364, 369  (1968)(exclusive access  to  an office  or to

documents contained within an office is not a prerequisite to

claiming Fourth Amendment protection).     

                    

8.  By  all  accounts,  Mancini's   appointment  calendar  is
typical of  the kind of  calendar maintained by  business and
professional people.  The daily log appeared to be maintained
by  secretaries  who worked  for  the  Mayor,  the  same  way
business   calendars  are   often   maintained  by   personal
assistants.

                             -10-
                              10

B.  The Attic Archive Room in City Hall
                                       

          Accepting the district court's conclusion that  the

appointment book  had  a sufficiently  personal character  to

justify  Fourth Amendment  protection,  the question  remains

whether  Mancini had a  reasonable expectation of  privacy in

the  place  searched.   The  district  court  said  that  the

appointment  book  was   "not  remove[d]...from  the  mayor's

files,"  but rather  was found  where  a 1987  file could  be

"expected  to be  [found],  in  the archives."    We do  not,

however, think this is conclusive.  As we have stated:

               The most  intimate of  documents, if
               left strewn about in the most public
               of  places, would  surely not  [give
               rise to an  expectation of privacy].
               That   the    items   seized    were
               appellant's personal  effects was  a
               mark  in   his  favor--but   without
               competent evidence to show that they
               were  left  in  a  place  and  under
               circumstances which could  (and did)
               give  rise  to   an  expectation  of
               privacy, the mark fell far short.

United States v.  Aguirre, 839 F.2d 854, 857  (1st Cir. 1988)
                         

(footnote  omitted).  Accordingly,  we turn our  attention to

the question  of Mancini's privacy  interest in a box  in the

archive attic.

          On  appeal,  both  sides  rely  on  cases involving

searches  of business premises.9   In the  government's view,

                    

9.  We  agree,  for  purposes  of  this  appeal,  that  cases
involving   business  premises   searches  are   sufficiently
analogous to provide guidance. 

                             -11-
                              11

these   cases  establish  that   an  employee  can   have  an

expectation of privacy only in his or her own work area.  Not

surprisingly, Mancini  takes  the opposite  view, i.e.,  that

case law establishes "beyond peradventure" that an employee's

expectation of privacy  is not limited to his  own work area.

The truth lies somewhere in between.

          It is undisputed that, under certain circumstances,

a  corporate  officer  or employee  may  assert  a reasonable

expectation of privacy  in his/her corporate offices  even if

shared with  others, and  may have standing  with respect  to

searches  of  corporate  premises and  records.    See, e.g.,
                                                            

Mancusi 392 U.S.  at 369 ("It has long  been settled that one
       

has standing  to object to a search of  his office as well as

his home.").  In addition, "[g]iven the great variety of work

environments  in the public  sector, the question  whether an

employee  has a  reasonable expectation  of  privacy must  be

addressed on a case-by-case basis."  Ortega, 480 U.S. at 718.
                                           

          We consider the following factors to be  especially

relevant to the standing determination:  

          "ownership,  possession  and/or  control;
          historical use  of the  property searched
          or the thing seized;  ability to regulate
          access; the  totality of  the surrounding
          circumstances;    the     existence    or
          nonexistence of a subjective anticipation
          of    privacy;    and    the    objective
          reasonableness  of  such   an  expectancy
          under the facts of a given case."  

                             -12-
                              12

See  Sanchez,  943 F.2d  at  113  (quoting  United States  v.
                                                         

Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)).  We also take
       

notice  of  the  position  of  authority  held  by  the party

asserting  his/her fourth amendment rights.  United States v.
                                                          

Brien, 617 F.2d 299, 306 (1st Cir. 1980). 
     

          In  United States v. Moscatiello, 771 F.2d 589, 601
                                          

(1st Cir. 1985), we reversed a district  court decision which

denied  two individual  defendants  standing  to contest  the

search of  a warehouse which  was owned by a  corporation and

used  to store marijuana  before transport.   We rejected the

district  court's   reasoning  that  the   defendants  lacked

standing  because they neither  owned the warehouse  nor used

any  portion  of  it  for  personal matters.    Id.  at  601.
                                                   

Instead, we noted that the defendants, along with two others,

furnished the  money to buy  the warehouse in  the name of  a

corporation  in which  they held  all  the stock.   This,  we

concluded,  gave them a proprietary interest in the building.

Id.   Of more importance, however, was the fact that only the
   

defendants  and one of  their coconspirators had  keys to the

warehouse, that the warehouse was  kept locked, that very few

people  had access  to it,  and that  the defendants  did, in

fact, keep some  personal property there.  Id.   We therefore
                                              

determined  that the defendants  had standing to  contest the

warehouse search.  Id.
                      

                             -13-
                              13

          In  United States v. Thornley, 707 F.2d 622, 624-25
                                       

(1st Cir.  1983), on the  other hand, we upheld  the district

court's rejection of a standing claim made by a defendant who

had removed incriminating documents from his business and had

stored  them  in  the basement  of  a  three-tenant apartment

building owned by a  close friend.  Id. at 624-25.   We found
                                       

that several  factors militated  against defendant  having an

objective expectation  of privacy,  including the  facts that

the storage  area was a common area  that was not kept locked

and  that  access was  possible  through  an  old hole  in  a

sidewall.  Id. at 624.  Also, we noted that the area had been
              

used by a tenant long before defendant's use of it, and  that

the  tenant was never told that her  use was prohibited.  Id.
                                                             

at 624-25.   Finally, we observed that the  basement was open

not only to  tenants, but to children  who used it as  a play

area.  Id. at 625.  These facts, combined with the  fact that
          

the defendant was not a tenant of the building and lacked any

evidence  to  support  his  expectation  of  privacy   claim,

compelled  us to  conclude  that  the  defendant  "could  not

insulate  himself  against  the  discovery  of  incriminating

material by  . . . hiding it  in a place . .  . in which [he]

had  no  legal   interest  or  even  access   rights."    Id.
                                                             

(quotations omitted).

          Finally, in Brien, we affirmed the district court's
                           

finding of an expectation of privacy on the part of corporate

                             -14-
                              14

employees  in business  records  seized  from  areas  of  the

corporate office other than their  own work stations.  Brien,
                                                            

617 F.2d  at  306.   In so  doing, we  approved the  district

court's focus on the following  factors:  1) each defendant's

position  in the  firm;  2) his  ownership  interest; 3)  his

responsibilities; 4)  his power  to exclude  others from  the

area; 5) whether he worked  in the area; and 6)  his presence

at the  time of the search.   Id.  We also  found it relevant
                                 

that the office  in question was  noteworthy for its  extreme

security measures.  Id. at n.9.10
                       

          Although we  are clearly grappling  with matters of

degree, the facts here, in light of the foregoing precedents,

persuade  us that the  Mayor has demonstrated  an objectively

reasonable  expectation  of  privacy in  the  archive  attic.

Mancini  was  mayor of  the  city  of  North  Providence  for

nineteen  years, throughout which he maintained his office in

the same building.   The archive attic, as noted  previously,

was upstairs in  the very  building in  which Mancini  worked

throughout his  tenure in  political office.   Moreover,  the

record shows  that Mancini took  steps to assure that  no one

                    

10.  Some  standing decisions  turn  on the  applicability of
certain business regulations that may reduce one's reasonable
expectation of  privacy.  See,  e.g. United States  v. Leary,
                                                            
846  F.2d 592, 596-98  (10th Cir. 1988)  (exporting);  United
                                                             
States  v.  Chuang, 897  F.2d  646,  649-51  (2d  Cir.  1990)
                  
(banking),  cert.  denied, 498  U.S.  824  (1990).   No  such
                         
regulations apply to this case.

                             -15-
                              15

would   have  access   to  his   files   without  his   prior

authorization.11      Finally,   we   note   that   Mancini's

belongings were  clearly  labeled and  were  segregated  from

other items in the secured archive attic.  

          Accordingly, Mancini could have expected that  only

members  of the  maintenance  or  personnel  staff,  who  had

instructions  not to disturb  the Mayor's boxes,  could enter

the attic, and that his personal records would not be touched

except with  his permission  or that of  his Chief  of Staff.

Cf.   Mancusi, 392  U.S. at 369.   In our  opinion, Mancini's
             

actions  demonstrate an expectation of privacy in the archive

attic which we find to be objectively reasonable. 

                             IV.
                                

                          CONCLUSION
                                    

          For the foregoing reasons, we hold that Mancini has

standing to challenge the search  and seizure here at  issue.

Accordingly, the ruling of the district court is affirmed.
                                                 affirmed
                                                         

                    

11.  In  addition  to  Mancini's   sworn  statement  that  he
specifically "instructed my Chief of Staff that no one was to
have access to any of  my boxes, including the box containing
the calendars, without permission,"  Robert Hennessey, a city
employee, testified as follows:

     Q.   Did you have permission to go into this box?
     A.   No.
     Q.   Did  you have  permission  to go  into  any of  the
Mayor's        property in the archives?
     A.   No.
     Q.   Who, if you know, was the only person authorized to
          permit entry into those boxes?
     A.   I would say the Mayor  or Leo Perrotta [the Mayor's
          Chief of Staff].

                             -16-
                              16