argued: June 17, 1977.
UNITED STATES OF AMERICA, APPELLANT
FORSYTHE, ROBERT E., FRANCISCUS, CHARLES J., BLASKOVICH, JOHN J., FRANCE, EDWARD J., PROSSER, EDWIN F., SNEE, EDWARD T., JOYCE, THOMAS, SHANTA, MICHAEL, THOMPSON, GEORGE B., MUSSMAN, JOHN L., ALCORN, CARL W. (D.C. CRIM. NO. 76-162-1/11). UNITED STATES OF AMERICA, APPELLANT V. MEYERS, SAM, MEYERS, GUS, LEVITT, STEPHEN C., MAZZEI, FRANK, ISAAC, MICHAEL C., GROSS, ARTHUR A/K/A "RED", WEBER, WALTER, GALACK, MARVIN, (D.C. CRIM. NO. 76-163-1/8). UNITED STATES OF AMERICA, APPELLANT V. PANTONE, ALBERT C., BRUNO, FRANK, CHANDLER, JOHN, WASKO, JOHN, CHAPAS, JOHN, BIONDI, RALPH, CHESNOS, AL, CRAWSHAW, WILLIAM, DOWNEY, WILLIAM E., HERMAN, RICHARD P., KUMER, JOHN, MORGAN, LAWRENCE, MCCANN, JAMES J., ROMANO, DOMINICK (D.C. CRIM. NO. 76-164-1/14). UNITED STATES OF AMERICA, APPELLANT V. BARBOUR, SAMUEL, DUPREE, FRANK, HIERONIMUS, EARL, ESTERBERG, GARY, SMITH, RONALD, EDKINS, THOMAS, CASHDOLLAR, RICHARD, SHEFFLER, GEORGE, KEISLING, CHRIS, MYSELS, MAURICE, DILUCENTI, BRUNO (D.C. CRIM. NO. 76-198-1/11). UNITED STATES OF AMERICA, APPELLANT V. WILLIAMS, JACOB A/K/A "JAKE", GOODS, LEONARD, JOHNSON, JAMES, WHITING, OTHA T., OWENS, FRED A/K/A "LUKEY", ARDUINI, ART, VELIKOFF, GERALDINE, BRYANT, LEVI, MCCLENDON, HARRY VIRGIL SR., MOORE, MELVIN, MATTHEWS, ELIOTT, HANEY, JOHN (D.C. CRIM. NO. 76-199-1/12). UNITED STATES OF AMERICA, APPELLANT V. NAIRN, REGIS, MCHUGH, WILLIAM, GRAHAM, DANIEL, CICCO, GUY, GILLINGHAM, MYLES E., ZANELLA, JOSEPH, PHILLIPS, EUGENE, HERMAN, STEPHEN M., BATKINS, JOHN C., TROSKY, JAMES R., REGRUT, JAMES, ADAMS, JOHN Q., LA QUINTA, RICHARD, WILLIAMS, ROBERT F. A/K/A "BUCK", BAEHR, THEODORE A/K/A "TEDDY" (D.C. CRIM. NO. 76-200-1/15). UNITED STATES OF AMERICA, APPELLANT V. ESTERBERG, GARY (D.C. CRIM. NO. 76-198-4). UNITED STATES OF AMERICA, APPELLANT V. MEYERS, SAM, MEYERS, GUS, ISAAC, MICHAEL C., GROSS, ARTHUR A/K/A "RED", GALACK, MARVIN (D.C. CRIM. NO. 76-163-1/2, 5/6, 8). UNITED STATES OF AMERICA, APPELLANT V. WEBER, WALTER (D.C. CRIM. NO. 76-163-7). UNITED STATES OF AMERICA, APPELLANT V. MAZZEI, FRANK (D.C. CRIM. NO. 76-163-4)
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Adams, Van Dusen and Gibbons, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal is from a district court order suppressing evidence obtained from a search conducted pursuant to warrant and dismissing indictments against sixty-nine out of a total of seventy-one defendants charged with conspiracy and substantive violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), Title IX of the Organized Crime Control Act of 1970, Chapter 96 of Title 18 U.S.C. § 1961 et seq. Because the record does not support the district court's ruling that the search warrant was invalidly executed, and because the district court judge's interpretation of RICO as applied to these facts was contrary to congressional intent in enacting the statute, as well as for all the reasons stated in this opinion, we reverse and remand.
In the summer of 1975, the FBI began an investigation directed at the lower level of the criminal justice system in Allegheny County, Pennsylvania. The information received indicated that a bail bond agency in Pittsburgh known as the Steve Levitt Agency had been making systematic money payments to various magistrates,*fn1 constables, minor Allegheny County court employees and other law enforcement officials in return for the referral to the Steve Levitt Agency of defendants who had been brought before the magistrates for the setting of bail.
On September 23, 1975, the FBI agents obtained a search warrant authorizing them to conduct a search of the agency premises for business records evidencing the above described bribery scheme. The affidavit upon which the warrant was issued contained information supplied by a confidential informant and two former employees of the Agency. The warrant was signed at 7:45 p.m. by the Chief Judge of the United States District Court for the Western District of Pennsylvania and the search of the Agency premises began at 8:12 p.m. Records reflecting the business of the Agency and evidence of the payoff-referral scheme were seized.
On July 23, 1976, three indictments charging a total of 33 defendants with violations of RICO were returned by a grand jury.*fn2 On August 27, 1976, three more indictments were returned against an additional 38 defendants.*fn3 Numerous motions to suppress the evidence seized during the September 23rd search and to dismiss the indictments were filed. On February 22, 1977, the district court judge, having heard testimony and argument on the motions, issued a memorandum and order suppressing the evidence and dismissing the indictments against all but two*fn4 of the defendants. United States v. Forsythe, 429 F. Supp. 715 (W.D. Pa. 1977).
A. Validity of the Search Warrant
The initial question on this appeal is whether the search warrant was properly issued. Appellee Frank Mazzei*fn5 contends there was not sufficient probable cause for issuance because the facts in the affidavit on which the warrant was based were stale as of the date the warrant was signed. One informant ceased employment with the Agency in August of 1975 and the other (a former partner) had left in 1974. Mazzei argues that the informant's statements do not tend to show that the documents they described were on the Agency premises as of September 23, 1975, the date the warrant was issued.
The district court judge observed that a month long time lapse might be significant had the items been of a volatile or fugitive nature, such as narcotics or stolen cars. 429 F. Supp. at 725. He found, however, that the Agency's business, involving bail bonds valid for considerable periods of time, was such that there was reason to believe that the documents would, in all probability, be preserved for more than one month. Id.
The Supreme Court recently upheld a warrant against a similar argument in a case where there had been a three-month delay between the completion of the transactions on which the warrants were based and the ensuing search. See Andresen v. Maryland, 427 U.S. 463, 478, n.9, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976).*fn6 In the instant case, as in Andresen, the records sought were prepared in the ordinary course of the Agency's business and it was reasonable to believe that they would be maintained there for a period of time of over one month. Moreover, the agents had reason to believe that the Agency had been conducting its bribery operations over a five year period, and there was no reason to believe that this operation had ceased. We hold, therefore, that there was no error in the district court's finding that the warrant was properly issued.
B. Execution of the Search Warrant
The district court held that the evidence seized during the search must be suppressed because the search warrant was invalidly executed. He so concluded because the warrant stated that the search was to be conducted "in the daytime" and it was undisputed that the search began at 8:12 p.m. 429 F. Supp. at 723.
Federal Rule of Criminal Procedure 41 governs searches and seizures in the federal system. Section (h) of Rule 41 provides that "the term 'day-time' is used in this rule to mean the hours from 6:00 A.M. to 10:00 P.M., according to local time." It is plain that a search beginning at 8:12 p.m. is a daytime search within the meaning of Rule 41(h).
The district court further found that the warrant was invalidly executed because the search was conducted in an "unreasonable, surreptitious and clandestine manner." This description is not supported by the record. The FBI agents were admitted to the Agency premises by the building security guard after exhibiting the warrant to him and after the guard, pursuant to the agents' instructions, had notified Michael Isaac that a search was being ...
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