United States v. Greenburg

United States Court of Appeals
For the First Circuit

No. 03-2441

UNITED STATES OF AMERICA,

Appellant,

v.

LAURENCE B. GREENBURG,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Lipez, and Howard, Circuit Judges.

Lori J. Holik, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Richard M. Egbert with whom Patricia A. DeJuneas was on brief,
for appellee.

June 3, 2005
 HOWARD, Circuit Judge. In January 2002, a federal grand

jury returned a multi-count indictment against Laurence Greenburg

and six other defendants stemming from allegations that these

individuals participated in an illegal meat-packaging scheme

operating from Woolf International Corp. ("Woolf") in Billerica,

Massachusetts. Greenburg subsequently moved to suppress evidence

seized from Woolf's premises during a warrant search conducted by

the United States Department of Agriculture ("USDA"). After a non-

evidentiary hearing, the district court granted the motion on the

ground that the warrant application did not establish probable

cause for the search. The government appealed. See 18 U.S.C. §

1371. The relevant facts are as follows.

In April 1998, federal agents executed a warrant to

search Woolf's premises. The warrant application was supported by

an affidavit from Bernard Walter, a special agent for the Office of

Inspector General of the USDA with fourteen years of experience

investigating waste, fraud, and abuse perpetrated by USDA regulated

entities. Walter's affidavit provided the magistrate issuing the

warrant with the following information.

Greenburg was an owner of Woolf, which makes and packages

sandwiches containing meat products for sale to supermarkets,

canteens, and convenience stores. Woolf is regulated by the USDA's

Food Safety and Inspection Service ("FSIS") and therefore must

operate and maintain records according to USDA regulations. As a

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USDA regulated entity, Woolf was assigned an FSIS inspector who had

complete access to Woolf's premises at all times. FSIS records

indicated that Woolf had engaged in meat-packaging misconduct

during the late 1980s.

On March 23, 1998, Walter met with a Woolf employee who

provided a confidential tip about an illegal meat-repackaging

operation that had been operating at Woolf for several years.

According to the informant, the operation typically took place two

days per week at approximately 4 p.m., after Woolf's lawful

activities had concluded, the FSIS inspector had left the premises,

and most Woolf employees had gone home.

As described by the informant, a tractor trailer would

arrive after hours at the loading dock, which was used during

normal hours to load the Woolf delivery truck. The trailer usually

contained between twenty-five and thirty-five plastic-wrapped

pallets, each containing twenty-five to thirty-five boxes of meat.

The boxes came in sixty and forty-five pound sizes.

The repackaging procedure involved unloading the trailer

and moving the boxes into the room used for repackaging. The room,

which was not used for meat packaging during Woolf's normal hours,

was not monitored by the FSIS inspector, was partially under

construction, and had a dirty floor and debris falling from the

ceiling. When the repackaging process was underway, the doors to

this room were closed and all the windows were covered.

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 For each delivery, a Woolf employee opened the original

boxes and exposed frozen, raw meat. The original boxes were date-

stamped and marked with the USDA emblem. After the boxes were

opened, different procedures were employed depending on the size of

the box. With the sixty pound boxes, the top of the box was

removed, a new top was placed on the box and date-stamped with a

new date, and the box was resealed. This was called a "lid job."

With the forty-five pound boxes (which had no lids), the

meat was completely removed and placed into a new box, which was

then sealed and date-stamped with a new date. This was called a

"box job." Sometimes during a box job, the meat fell onto the

floor but was nevertheless repackaged.

The trailer would depart the Woolf premises after being

unloaded. A second trailer was typically waiting at the Towne

Plaza in Billerica. After the repackaging was complete, the boxes

were reloaded onto the pallets, and someone at Woolf called the

driver of the second trailer. The second trailer arrived at the

loading dock, was loaded with the repackaged pallets, and drove

away. The original lids and boxes were placed onto a Woolf truck

and taken offsite for disposal.

The informant reported that approximately ten people

worked on the repackaging operation, including Greenburg, who was

often in charge. The informant was paid approximately $75.00 an

hour for the repackaging work instead of the approximately $10.00

an hour he earned in regular employment for Woolf. Greenburg and
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others told the informant that the repackaging operation was secret

and constantly looked out of the windows during the process to make

sure that no one was watching.

The informant told Walter that the next repackaging

operation was scheduled on March 25, 1998 for sometime after 4 p.m.

Based on the informant's tip, Walter conducted a surveillance of

the Woolf premises. At 4:15 p.m. on March 25th, Walter observed a

blue trailer at the Woolf loading dock. Approximately forty-five

minutes later, this trailer left the loading dock. At 5:40 p.m.,

another trailer was observed parked at the Towne Plaza. Less than

an hour later, this trailer arrived at the loading dock, and, after

thirty minutes, drove away.

After this surveillance, Walter met with the informant

and discussed what had just taken place. According to the

informant, a trailer containing approximately twenty-three pallets

holding sixty pound boxes of meat had arrived at Woolf at 4:15 p.m.

All the pallets were unloaded and moved to the repackaging room.

Woolf employees removed the lids (which were printed with the label

"Chicago Packers") and replaced them with lids displaying the words

"U.S. Department of Agriculture." The employees date-stamped the

new lids with various dates in March 1998. The boxes were then

reloaded onto the pallets. At approximately 6:30 p.m., another

trailer arrived at the loading dock, was loaded with the repackaged

meat, and departed. After this trailer left, the Woolf delivery

truck was loaded with the old lids.
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 The informant told Walter that another repackaging

operation was scheduled to begin at 2:30 p.m. on March 27, 1998 and

that the boxes for this operation were hidden in an unmarked office

across from the Woolf business offices. In light of this

information, Walter conducted a second surveillance on March 27th.

At approximately 2:30 p.m., a trailer arrived at the loading dock.

At around 5:00 p.m., this trailer departed.

After concluding the surveillance, Walter met again with

the informant, who stated that a trailer had arrived at the loading

dock at approximately 2:30 p.m. containing twenty-five pallets of

forty-five pound boxes of meat. Woolf employees unloaded the boxes

and moved them into the repackaging room. The boxes were opened,

and the meat was lifted out and put into new boxes. During the

process, some of the meat fell onto the floor but was nevertheless

repackaged. After the repackaging, the new boxes were sealed, date

stamped, and reloaded onto the trailer. The trailer then left, and

the old boxes were stored in a locked room for disposal at a later

time. According to the informant, the old boxes appeared aged,

dirty, and dried out. There were approximately nine hundred more

boxes to be used in future repackaging operations concealed in the

unmarked office across from the business office.

On April 3, 1998, a magistrate issued a warrant to search

Woolf's premises based on Walter's affidavit. Several days later,

federal agents executed the warrant and seized business records,

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meat-packaging boxes, and several thousand pounds of meat. Based

in part on the seized materials, Greenburg eventually was indicted

on 64 counts of tax fraud, mail fraud, money laundering, and

conspiring to engage in an illegal meat-packaging scheme.

Greenburg subsequently challenged the warrant on the

ground that the affidavit failed to establish probable cause for

the search because the affidavit did not provide a basis for the

magistrate to assess the informant's credibility. The district

court agreed and ordered the seized evidence suppressed. In making

its ruling, the court focused primarily on Walter's failure to

present the magistrate with information about Woolf's normal

business operations. The court reasoned that, without such

information, the magistrate could not assess whether the

information that Walter learned during his surveillance was

indicative of criminal activity or merely an observation of Woolf's

normal activities. The district court also ruled that, because the

corroboration for the search was inadequate, the Leon good faith

exception did not apply. See United States v. Leon, 468 U.S. 897,

923 (1984).

The standard of review applicable to the government's

appeal is well-established:

We review de novo the district court's
ultimate determination of whether a given
set of facts constituted probable cause.
Any factual findings are reviewed for clear
error. In determining the sufficiency of
an affidavit, we consider whether the
totality of the circumstances stated in the
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 affidavit demonstrates probable cause to
search the premises. We examine the
affidavit in a practical, common-sense
fashion and accord deference to reasonable
inferences the [magistrate] may have drawn
from the attested facts. Under the
probable cause standard, the totality of
the circumstances disclosed in the
supporting affidavits must demonstrate a
fair probability that contraband or
evidence of a crime will be found in a
particular place. In a doubtful or
marginal case, the court defers to the
issuing magistrate's determination of
probable cause.

United States v. Barnard, 299 F.3d 90, 92-93 (1st Cir. 2002).

Where, as here, the basis for the magistrate's probable

cause finding was information provided by an unnamed informant, the

affidavit must provide some information from which the magistrate

can assess the informant's credibility. Id. at 93. Many kinds of

information may help establish credibility. Among these are

whether an affidavit supports the probable
veracity or basis of knowledge of persons
supplying hearsay information; whether the
informant statements are self-authenticating;
whether some or all of the informant's
factual statements were corroborated wherever
reasonable and practicable . . .; and whether
a law enforcement affiant included a
professional assessment of the facts related
by the informant based on experience.

United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)

(internal citation omitted). None of these factors is

indispensable, and other indicia may be relevant. See id.

In evaluating the informant's credibility, we first

assess the manner in which the informant provided the tip. Walter

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met with the informant in person on several occasions. He

therefore had the opportunity to question the informant personally

about the tip and take measure of the informant's credibility.

This sort of face-to-face contact between the agent and informant

supports the informant's reliability. See United States v. Gabrio,

295 F.3d 880, 883 (8th Cir. 2002). Further, Walter knew the

informant's identity and therefore could hold the informant

responsible if he provided false information. This tends to

establish an incentive for the informant to tell the truth. See

Barnard, 299 F.3d at 93 (citing Florida v. J.L., 529 U.S. 266, 270

(2000)).

Greenburg complains that the informant had no track

record of reliability. To be sure, evidence of the informant's

prior credibility is relevant and in some cases may be all that is

needed to establish probable cause. See United States v. Jordan,

999 F.2d 11, 14 (1st Cir. 1993). But an informant's tip can

establish probable cause even though the affidavit does not contain

information about the informant's past reliability. See, e.g.,

Barnard, 299 F.3d at 94.

We consider next the nature of the information provided.

The informant supplied Walter with a detailed description of the

repackaging scheme which the informant learned from personal

observation. The informant described, with specificity, the area

where the repackaging occurred, the repackaging procedures

employed, the number of boxes per pallet, the weight of the boxes,
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and the sequence in which the trailers arrived for loading and

unloading. A specific, first-hand account of possible criminal

activity is a hallmark of a credible tip. See Illinois v. Gates,

462 U.S. 213, 234 (1983); Barnard, 299 F.3d at 93; United States v.

Taylor, 985 F.2d 3, 6 (1st Cir. 1993); United States v. Caggiano,

899 F.2d 99, 102-03 (1st Cir. 1990). In addition, the informant

implicated himself in the wrongdoing. When a self-incriminating

statement is provided by an informant whose identity is known to

the authorities, the statement is more likely to be true because of

the risk inherent in making such a statement. See United States v.

Harris, 403 U.S. 573, 583-84 (1971); see also 2 W. LaFave, Search

& Seizure: A Treatise on the Fourth Amendment 126 (3d ed. 1996).

Greenburg contends that any positive inference to be

drawn from these facts is undermined by a facial inconsistency

within the warrant application. The warrant application contained

a description of the Woolf premises provided by Albert Lamson, an

FSIS investigator who was familiar with the Woolf building.1

Lamson described the area where the repackaging allegedly occurred

as "accessible solely through the blue doors on the loading dock

located on the east side of the northern end of the building.

There are no windows or other entrances/exits."

1
Lamson was not the FSIS investigator responsible for Woolf
at the time that the informant provided the tip. See infra at
n.3.
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 Greenburg claims that this description is inconsistent

with the informant's statement that the windows in the repackaging

room were covered during the operation and thus shows that the

informant was lying. As an initial matter, Lamson's description of

the room is a bit unclear. It is not obvious that Lamson was

describing the entire area where the repackaging took place; he

could have been describing only the exterior of the room facing the

loading dock. And in any event, magistrates making probable cause

determinations act within short time constraints and consequently

must read affidavits "in a practical, common sense fashion."

Zayas-Diaz, 95 F.3d at 111. The informant's tip was internally

consistent and supported by several indicia of reliability (or so

the magistrate reasonably could have thought). That Greenburg may

have identified an inconsistency between a portion of the

informant's statement and Lamson's description of the repackaging

room is not sufficiently compelling to call the magistrate's

probable cause conclusion into doubt.2 See, e.g., United States

v. Schaefer, 87 F.3d 562, 567 (1st Cir. 1996) ("When an informant's

statement and the events he attempts to describe diverge in minor

2
Greenburg points to a second alleged inconsistency. The
informant said that the repackaging took place in a room that was
not monitored by the FSIS inspector. Greenburg claims that this is
inconsistent with Lamson's ability to describe the room. There is
no inconsistency here. The informant did not say that an inspector
never entered the room where the repackaging took place; read in a
common sense way, the informant was explaining that the inspector
did not typically enter this room during his rounds. Moreover,
Lamson's description was of the exterior of the room, which was
capable of description without entry to the room's interior.
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ways, the magistrate may reasonably choose to credit the

[informant's] statements and disregard petty inconsistencies.").

Finally, we examine Walter's corroboration of the tip.

The informant told Walter that a repackaging operation was

scheduled to take place on March 25th after 4 p.m. From watching

Woolf's premises, Walter observed the various trailers arriving at

and leaving the loading dock just as the informant described.

Walter also was able to confirm that a trailer was waiting at the

Towne Plaza before arriving at the loading dock. Finally, Walter

knew that, several years earlier, Woolf had been involved in

questionable meat-packaging activities. See Taylor, 985 F.2d at 6

("An affiant's knowledge of the target's prior criminal activity or

record clearly is material to the probable cause determination.").

Echoing the district court, Greenburg says that this

corroboration was insufficient because Walter failed to include

information about Woolf's normal operations in the affidavit.

Without this information, Greenburg contends, Walter did not know

that he was observing illegal activity. This argument is based on

a faulty premise.

"[C]orroboration of even innocent activity reported in

the tip may support a finding of probable cause." United States v.

Perez, 67 F.3d 1371, 1383 (9th Cir. 1995), rev'd in part on other

grounds, 116 F.3d 840 (1997) (en banc); see also United States v.

Dawkins, 17 F.3d 399, 404 (D.C. Cir. 1994) ("In some circumstances,

it may be enough that law enforcement officers confirm the tips'
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innocent detail."). Corroboration of apparently innocent activity

can establish the reliability of the informant because the activity

might come to appear suspicious in light of the initial tip. See

Gates, 462 U.S. at 243 n.13. The relevant inquiry is not whether

"the particular conduct [observed] is innocent but the degree of

suspicion that attached to particular types of noncriminal acts."

Id. In light of the informant's specific description of the entire

illegal scheme, Walter's observation of seemingly innocent truck

movement, which matched the informant's prediction about such

activity, helped establish a substantial reason to believe that the

informant's description of the entire scheme was accurate.3 Id. at

244 ("Because an informant is right about some things, he is more

probably right about others.").

The task in assessing the informant's credibility is not

to determine definitively whether the informant is lying or in

error. See Khounsavanh, 113 F.3d 279, 284 (1st Cir. 1997). Rather,

a probable cause finding may be based on an informant's tip so long

as the probability of a lying or inaccurate informer has been

sufficiently reduced. Id. The face-to-face contact between the

3
Greenburg also faults Walter for not interviewing the FSIS
inspector responsible for Woolf in March 1998 and for not
corroborating certain other facts provided by the informant. But
Walter only needed to corroborate the tip to an extent "reasonable
and practicable." Zayas-Diaz, 95 F.3d at 111. Moreover, there may
well have been substantial reasons for not interviewing the FSIS
inspector who could have been a potential suspect in the
investigation. And a more aggressive surveillance might have
caused the investigation to be discovered by the participants.

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informant and the agent, the specific and self-incriminating nature

of the tip, and the respectable amount of corroboration provided by

Walter's investigation provided the magistrate with "a substantial

basis upon which to conclude that there was a fair chance" that

evidence of an illegal meat-packaging scheme would be found at

Woolf. Barnard, 299 F.3d at 95.4

Reversed and remanded.

4
Because we conclude that there was probable cause for the
search, we do not address the district court's Leon ruling.

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