On Appeal from Final Judgment of Conviction and Sentence in the United States District Court for the Western District of Pennsylvania (Crim. No. 87-00226).
Gibbons, Chief Judge, Seitz and Hutchinson, Circuit Judges
Alan Frank appeals from a judgment of sentence imposed following his conviction on a charge of interstate flight to avoid prosecution. He contends that the indictment should have been dismissed because the prosecution was not authorized in the manner required by 18 U.S.C. § 1073. He also contends that the evidence is insufficient to sustain his conviction. Alternatively he contends that he is entitled to a new trial because the district court erred in denying his motions for the suppression of certain evidence and in refusing to give certain requested instructions. The United States appeals pursuant to 18 U.S.C. § 3742(b)(1) from the judgment of sentence because the district court refused to apply the sentencing guidelines to this post-November 1, 1987 offense. We will affirm Frank's conviction, but will remand for resentencing.
In November 1986 Frank, a Pennsylvania attorney with federal court experience, was informed by Detective Donald Fox of the Allegheny County Police Department that it was possible that criminal charges with respect to forgery and theft of municipal bonds would be brought against him. Thereafter, Frank embarked on a cruise on his son's yacht. While he was gone, on January 5, 1987 Detective Fox filed a state criminal complaint charging Frank with theft and forgery. Fox obtained a warrant for Frank's arrest, but was unable to execute it because Frank was then in the Bahamas. On January 8, 1987 a federal criminal complaint was filed charging Frank with unlawful flight to avoid prosecution in violation of 18 U.S.C. § 1073. A warrant for Frank's arrest was issued by the United States District Court for the Western District of Pennsylvania, and the Federal Bureau of Investigation began a search for him.
In the fall of 1987 Frank returned to Allegheny County, where on November 5 he was arrested at the Viking Motel by two FBI agents. On November 6, 1987, he was arraigned before a United States Magistrate on the interstate flight charge and he requested a preliminary examination. Frank was detained and eventually indicted and prosecuted on the interstate flight charge.
The statute for violation of which Frank was convicted provides in relevant part:
Whoever moves or travels in interstate or foreign commerce with intent . . . to avoid prosecution . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Violations of this section may be prosecuted . . . only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated.
18 U.S.C. § 1073. The first quoted paragraph is traceable to the Fugitive Felon Act of 1934. Pub. L. No. 233, 48 Stat. 782. See Barrow v. Owen, 89 F.2d 476 (5th Cir. 1937). It was passed for the purpose of permitting the Federal Bureau of Investigation to participate in the apprehension of persons fleeing across state lines after committing designated offenses. The second paragraph was added by the Fugitive Felon Act of 1961, Pub.L. No. 87-368, 75 Stat. 795, which also broadened the first paragraph to include all felonies. Thus the relevant legislative history is that of the 1961 Act.
Consistent with the original purpose of the Act, which is to permit federal law enforcement officers to assist local law enforcement by apprehending fleeing felons, the second paragraph has never been construed to require consent from a high official of the Department of Justice for the filing of a charge, the issuance of an arrest warrant, or the arrest and detention of a fugitive. See United States v. Diaz, F. 351 Supp. 1050 ID. Conn. 1972) (warrant may issue without Attorney General's approval); United States v. McCarthy, 249 F. Supp. 199 (E.D. N.Y. 1966) (filing complaint and arrest valid without Attorney General's approval). Indeed, to construe section 1073 as requiring approval from the highest level of the Justice Department for a complaint, a warrant, or an arrest would serve to frustrate the federal law enforcement agencies by preventing them from going into action promptly, and it would set a premium on a quick get-away across state lines by the criminal. United States v. Bando, 244 F.2d 833, 843 (2d Cir.), cert. denied, 355 U.S. 844, 2 L. Ed. 2d 53, 78 S. Ct. 67 (1957). Therefore, as used in the second paragraph of section 1073, the term "prosecution" cannot refer to the filing of a complaint, authorized by Fed. R. Crim. P. 3, to the issuance of an arrest warrant, authorized by Fed. R. Crim. P. 4(a), to the execution of a warrant, authorized by Fed. R. Crim. P. 4(d)(3), to the initial appearance before a magistrate, required by Fed. R. Crim. P. 5(a), or to the preliminary examination required, unless waived, by Fed. R. Crim. P. 5. 1. Likewise, because since 1934 the basic purpose of the statute has been to provide federal assistance in apprehending fugitives from state prosecution, on determining probable cause to believe that a violation of section 1073 has occurred, a magistrate must have the authority at least to detain a defendant until such time as he may be taken into state custody, without the approval of the highest levels of the Department of Justice.
At the Rule 5 and 5.1 hearing on November 6, 1987 Frank called to the Magistrate's attention the fact that no written approval of prosecution had been procured, and moved to dismiss the complaint. That motion was properly denied because, even absent such approval, the magistrate was authorized to determine probable cause and to detain Frank. At the same November 6, 1987 hearing the Assistant United States Attorney informed Frank and the magistrate that, in a telephone conversation that day, an Acting Assistant Attorney General in the Criminal Division of the Department of Justice had authorized the United States Attorney to proceed with prosecution. Thus Frank was put on notice that more federal proceedings were contemplated than merely finding probable cause and detaining him until he could be turned over to the Pennsylvania authorities.
The United States Attorney presented the section 1073 charge to a grand jury, which returned an indictment on December 3, 1987. At the time the indictment was returned the United States Attorney still had not obtained any written approval from Washington for proceeding with prosecution. Written approval was received on December 24, 1987, in a letter signed by Acting Assistant Attorney General, John C. Keeney. The letter also contains a typed reference to William F. Weld, Assistant Attorney General, Criminal Division, but Weld's signature does not appear (although the letter pre-dated Assistant Attorney General Weld's resignation by approximately three months).
The section 1073 offense is not one which can be tried before a magistrate. Accordingly, after the Rule 5.1 hearing, proceedings took place before a district judge. At a detention hearing on December 17, 1987, Frank asked the district judge to dismiss the indictment sua sponte. 26 Supplementary Appendix (SA). From the sequence of the colloquy at that hearing it appears that Frank relied upon the ground that there can be no flight to avoid prosecution until state charges are actually filed. The court denied the motion without prejudice, advising Frank to file a written motion to which the government could respond. Id. At that point, Frank mentioned the absence of written authority to prosecute as a ground for dismissal sua sponte, and contended that "I think it's not one of those where the motion need be filed." Id. He continued, "[I] asked for [written authority] earlier, asked for it a second time, Mr. Manning finally gave me the truth today, it was on its way. That's the same answer I heard before." Id. Directing Frank back to the issue of risk of flight, which was the subject of the detention hearing, the court refused to consider the motion. No written motion was ever filed on Frank's behalf with respect to the issue of approval of the prosecution.
The motion to dismiss because of the absence of written approval which was made to the magistrate in the Rule 5.1 hearing cannot be construed as a preservation of the approval issue, because it was made at a stage of the proceedings when such approval was not required and thus was properly denied. Nor was the approval issue properly preserved before the district judge. There is no basis on which Frank could assume that the district judge would consider the motion before the magistrate to have raised the issue for subsequent stages of the case. The only instance in which, prior to trial, Frank called the issue to the district judge's attention is Frank's reference to the absence of approval in the December 17, 1987 detention hearing. The colloquy from that hearing quoted above, is quite unspecific. It clearly did not alert the court to the question whether Acting Assistant Attorney General Keeney was one of the persons who could sign a written approval. Indeed, at that time, neither Frank nor the court nor the Assistant United States Attorney knew who would sign. Nor did it alert the district judge to the contention that the written approval was untimely. The indictment was already returned, but no one in the courtroom knew on December 17 whether a written approval had not been signed or had been signed at an earlier time, and merely delayed in transmission. Timeliness of the approval was not mentioned at all. Moreover, the court clearly stated that a written motion, to which the government might respond, would be considered if it was filed. Frank has offered no explanation for his failure to pursue that suggestion. In sum, the issue of approval of the prosecution at the indictment stage and later, was never fairly presented to the district court, was never ruled upon, and should not be considered now unless plain error resulted from improper approval in this case. Fed. R. Crim. P. 12(b)(1); Fed. R. Crim. P. 52(b). For the reasons which follow we see no such plain error.
We start with the purpose of the statutory requirement of approval to prosecute, as disclosed in its scant legislative history. The basic thrust of the 1961 Act was to increase the instances in which federal law enforcement officials would assist local law enforcement officials by apprehending fleeing felons. The report on the bill which became the 1961 Act reveals that the Justice Department contemplated the likelihood that, although federal trials of section 1073 cases might occur, in most instances it would continue the existing practice of returning the fugitive in order to bring him to trial before a state court. House Report No. 827, in 1961 U.S. Code Cong. & Ad. News 3242, at 3243. Congressman Libonati, who apparently wanted further assurances in this respect, offered an amendment which became the second quoted paragraph. 107 Cong. Rec. 16849, 16862 (1961). It is not entirely clear what his purpose was. Possibly he and the others who voted in favor of the amendment were interested in the preservation of scarce federal prosecutorial resources. Possibly they were motivated by federalism concerns such as letting the states punish their own offenders when the federal role of apprehending them was complete. Finally, Congressman Libonati, but no other member of Congress, made a passing reference to the undesirability of prosecuting the same person two or more times for actions arising out of a single criminal act. House Report No. 827, Minority Views, 1961 U.S. Code Cong. & Ad. News at 3245. We will assume, arguendo, that each of these three purposes animates the approval requirement. None of them, however, is relevant to proceedings under Fed. R. Crim. P. 3, 4, 5 or 5.1, since, as noted above, the undertaking of those proceedings without prior approval is necessary for the accomplishment of the law's overriding purpose of apprehending fleeing felons and holding them for the states. The other three purposes only become relevant at subsequent stages.
Our plain error analysis starts with the question whether, had Frank made the motion which the court invited, the government could have cured the defect on which he now relies, keeping in mind the three purposes which are arguably relevant at prosecutorial stages subsequent to arrest and detention. If we look upon Frank's trial as the prosecution it is clear that the defect could have been cured. Had the issue of absence of a signature by the Attorney General or an Assistant Attorney General been raised in a motion, one of the designated officials could then have considered (1) whether federal resources should be expended in the trial, (2) whether federalism concerns warranted deference to Pennsylvania, and (3) whether Frank should be exposed to the risk of prosecution by two sovereignties. A signature any time before trial would fully vindicate each of these purposes. We cannot at this stage, therefore, treat the absence of a readily obtainable signature as plain error when the government, had a motion been made, could have rectified it.
The timing of the approval is another matter. Frank urges that absent a written approval the United States Attorney should not even have presented the section 1073 case to the grand jury. We do not see how the three arguably relevant policies behind the approval requirement would be significantly advanced by such a reading of the statute. Conceivably in some instances a United States Attorney might want to conduct a grand jury investigation to determine if a section 1073 charge was appropriate, and obtain an indictment under section 1073 before obtaining an arrest warrant. The grand jury's action obviously would provide probable cause for issuance of a warrant. In such a case the three arguably relevant purposes of the statute could be served by having the Attorney General or an Assistant Attorney General decide, after a defendant's apprehension, whether to go forward with a trial. In Frank's case, moreover, the head of the Criminal Division approved the prosecution on November 6, 1987, before the matter was ever presented to the grand jury. The technical absence of a writing was curable. Cf. United States v. Acon, 513 F.2d 513, 518 (3d Cir. 1975) (absence of written approval prior to wiretap application does not require suppression if actual approval was timely). Frank urges that even if the approval was timely the wrong person made the approval. Since the government never had an opportunity to respond to a motion on the approval issue we do not actually know whether an Assistant Attorney General did in fact participate in the approval with Mr. Keeney. Whether or not that is the case, however, the result for plain error purposes would be the same. Had the issue been raised by motion, an approval by the Attorney General or an Assistant Attorney General could have been obtained, and the charge resubmitted to the same grand jury. Thus, even with respect to the grand jury's action, we cannot find plain error.
In advancing, belatedly, the contention that the indictment should be dismissed, Frank places principal reliance on United States v. Giordano, 416 U.S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974), which holds that in the absence of the statutorily required approval of a wiretap application by one of the designated officials of the Justice Department, the fruits of a court authorized electronic surveillance must be suppressed. For several reasons Giordano is not controlling. First, the congressional purpose in requiring approval by a politically responsible official of the Department of Justice was to minimize the resort to invasions of privacy rights guaranteed by the Federal Communications Act and the fourth amendment. Here the only right arguably personal to Frank is the non-statutory and non-constitutional right to have a high level official decide whether to expose him to a permissible dual sovereignty prosecution. The personal interest in avoiding dual sovereignty prosecutions, which are permissible, does not parallel the interest in sparing persons of illegal invasions of their privacy which accounted for the need for politically responsive decisionmaking in Giordano. Preservation of federal resources and deference to the states are not interests personal to Frank. Second, the statute which the court addressed in Giordano explicitly mandated suppression of evidence for its violation, 18 U.S.C. § 2515, a factor the Supreme Court found to be significant. Giordano, 416 U.S. at 524. Section 1073, by contrast, does not specify any specific relief. Finally, and most significantly, the defendant in Giordano preserved the suppression issue by making an appropriate motion, to which the government had an opportunity to respond, while Frank did not. Had the defendant in Giordano not done so, his suppression motion would have been waived. Fed. R. Crim. P. 12(b)(3). We hold, therefore, that the indictment should not be dismissed.
Frank moved pre-trial to suppress evidence seized from a rental car which was in his possession at the time of his arrest, and evidence seized in the course of the execution of a search warrant at his former wife's home. Legality of the two seizures requires separate treatment.
When Frank was arrested on Thursday, November 5, 1987, he was seated in a parked rented car in the parking lot of the Viking Motel. The arresting FBI agents locked and secured the car, taking the keys. They then telephoned Detective Fox of the Allegheny County Police Department, who caused the car to be brought to the impoundment lot which that Department maintained at the Greater Pittsburgh Airport. Fox did not search the car at that time but left instructions that an inventory search was to be left to him and his partner, Detective Heyl, at the earliest practical date. On Sunday, November 8, 1987, Frank requested Allegheny County Police Supervisor Neveling to give the personal belongings in the car to his family. Detective Fox was unable to conduct an inventory search prior to that time, because he and Heyl had to appear at Frank's bail hearing on Friday, November 6, and Fox did not work that Saturday Sunday or Monday. The Police Department arranged for a representative of the rental company that owned the car to come to the impoundment area, and in the presence of that representative, Detectives Fox and Heyl conducted a search.
The search involved opening the glove compartment and the locked trunk, and removing from the trunk and opening a zippered garment bag. The zippered garment bag contained, among other things, a file of papers in a manila envelope. A copy of the car rental agreement was taken from the glove compartment. When the representative of the car rental agency disclaimed ownership of any items in the garment bag, it was taken to police headquarters, where an inventory list was prepared. The police retained papers deemed to be of investigative significance and turned the rest of the property over to Frank's daughter. A detailed list of the returned items was retained. As will be seen in our later discussion of the sufficiency of the evidence, some of the seized papers were significant to the government's case. Frank moved to suppress them, and the district court denied the motion after an evidentiary hearing. The Court ruled:
We also find no merit to defendant's motion with respect to the inventory search of the Lincoln automobile at the airport on November 10, 1987. The law is settled that a warrantless inventory search of a motor vehicle is authorized under the instant circumstance. South Dakota v. Opperman, 428 U.S. 364, 1979, 49 L. Ed. 2d 1000, 96 S. Ct. 3092; Cooper v. California, 386 United States 58, 1966, 17 L. Ed. 2d 730, 87 S. Ct. 788. The evidence established that the police complied with all written and oral procedures and regulations incidental to such searches, and defendant's motion must be denied.
We also note that the Supreme Court stated in South Dakota vs. Opperman at page 369 as follows: When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobile's contents. These procedures developed in response to three distinct needs. The protection of the owner's property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger. The practice has been viewed as essential to respond to incidents of theft or vandalism. In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned. These caretaking procedures have almost uniformly been upheld by the State Courts which, by virtue of the localized nature of traffic regulations, have had considerable occasion to deal with the issue. Applying the Fourth Amendment standard of reasonableness, the State Courts have overwhelmingly concluded that even if an inventory search is characterized as a search, the intrusion is constitutionally permissable.
All three factors are applicable here and controlling. Accordingly, Defendant's motion to suppress will be denied.
(J.A. 223-27).Frank contends that this ruling was both factually and legally erroneous. We must defer to the district court's findings of fact unless they are clearly erroneous, but our review of the standards for inventory searches applied by the district court is plenary.
Frank's first factual contention is that the district court's finding that the searches of the car and the zippered bag were inventory searches is clearly erroneous. Antecedent to the question whether the inventory of the vehicle's contents is the question whether the impoundment of the vehicle was itself an unlawful seizure. It is far from clear on the record before us that this question was raised in the suppression hearing, except to the extent that it bore upon the motives of Detective Fox in making the inventory. Assuming that the issue was preserved, however, we hold that the FBI agents acted reasonably when, following Frank's arrest in a vehicle containing personal property, they locked the vehicle and caused it to be removed from the public parking area of a motel to a secure impoundment location. Thus the vehicle lawfully came into police custody. According to Frank, the evidence nevertheless compels a conclusion that Fox used the inventory search as a mere pretext for a warrantless investigatory search. He points to Detective Fox's acknowledgement that he lacked probable cause to obtain a search warrant, and to Fox's knowledge of Frank's fugitive status. The mere fact that an inventory search may also have had an investigatory purpose does not, however, invalidate it. United States v. Orozco, 715 F.2d 158, 161 (5th Cir. 1983). The fact that Detective Fox was also the officer in charge of the investigation into Frank's alleged frauds does not require a different conclusion. See United States v. Bosby, 675 F.2d 1174, 1179 (11th Cir. 1982). Supporting the district court's finding that the search was an inventor search is the evidence that the arresting FBI agents turned the car over to the Allegheny County Police Department for custody because the federal government does not have its own impoundment lot. Detective Fox was the officer who accepted custody of the car from the FBI, and who arranged to tow it to the impoundment area. Lieutenant Kowalski, the commanding officer of the impoundment facility, testified: "The procedure for my officers who are charged with towing a vehicle for impoundment is the arresting or investigating officer is responsible for the inventory of that vehicle." J.A. 110. He reiterated that "[w]henever a vehicle comes to the airport the detective or officer putting the vehicle into the impound lot is responsible for the inventory and search of that vehicle." J.A. 115. Kowalski further testified that the purpose for such inventory searches was "to protect the property inside the vehicle," and "caretake" functions in general. J.A. 111. Detective Fox testified that he and Detective Heyl, as the investigating officers, conducted the inventory search in accordance with police procedure. J.A. 137. Fox in fact made inventory lists of all personal property, both property retained and property turned over to Frank's daughter. J.A. 138-39, 150. The search and inventory lists were made following a request from Frank that his personal property be retrieved from the rental car and turned over to his family. Given this evidence, we cannot hold that the district court's conclusion that the search was an inventory search is clearly erroneous.
The same must be said about Frank's objection to the court's conclusion that "[t]he evidence established that the police complied with all written and oral procedures and regulations incidental to such searches." Lieutenant Kowalski testified to standard police procedures applicable to impounded vehicles, and Detective Fox testified that he followed them. It is true that the Allegheny County Police Department had no written procedures governing inventory searches, but Kowalski's testimony set forth unwritten standard procedures. applicable to all impounded vehicles, and according to the evidence these were complied with. The court's reference to written procedures undoubtedly is to the evidence that a towing report was written, an impound slip recorded the impoundment, and inventory lists were prepared.
Frank's legal agreement, predicated upon dicta in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 742 n.6, 93 L. Ed. 2d 739 (1987), is somewhat independent of his objections to the district court's factfinding. He urges that even accepting the facts as found, no legally valid inventory search occurred because there is no finding or evidence that the Allegheny County Police Department was following pre-exiting standardized ...