United States v. Hughes

          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


                               -8-
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


                                     -9-
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--


                                      -10-
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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