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United States v. Hays

filed: December 10, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CAROL ANN HAYS, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. MARK CHRISTOPHER MENG, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. CHARLES H. MENG, JR., DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. MARCEL JORDAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-86-0335-JSL-3, D.C. No. CR-86-0335-JSL-1, D.C. No. CR-86-0335-JSL-4, D.C. No. CR-86-0335-JSP-2. J. Spencer Letts, District Judge, Presiding

Before: Browning, Beezer, and Trott, Circuit Judges

MEMORANDUM

Mark Meng, Charles Meng, Marcel Jordan and Carol Ann Hays appeal their convictions and Mark Meng, Jordan and Hays appeal their sentences for mail fraud in violation of 18 U.S.C. § 1341, equity skimming in violation of 12 U.S.C. § 1709-2 and aiding and abetting in violation of 18 U.S.C. § 2. We affirm in part and vacate and remand in part.

I. MARK MENG'S CHARLES MENG'S AND JORDAN'S CLAIMS

A. Search of Suma's Offices

1. Particularity of Warrant

We reject Appellants' argument that the warrant was impermissibly broad. The affidavit and attached supporting documents contained a description of the rent-collection scheme proved at trial and included 1) testimony by several sellers about Mark Meng's and Jordan's misrepresentations, 2) documentation that Suma acquired over 300 properties from 1982-1985 and that many of these properties were lost to foreclosure and 3) information on rents collected from Suma-acquired properties as early as 1982, when Suma was first incorporated. There was no indication Suma was involved in any other business activities during its three-year existence. U.S. v. Falon, 959 F.2d 1143, 1147 (1st Cir. 1992) (broad warrant proper where "affidavit showed repeated episodes of fraudulent conduct and no indications of legitimate business."). There was sufficient evidence to believe Suma's business was "permeated with fraud," and a warrant authorizing the seizure of virtually all its business records was justified. Williams v. Kunze, 806 F.2d 594, 598 (9th Cir. 1986).

We also reject the argument that the warrant did not sufficiently limit the discretion of executing officers by specifically describing the types of documents to be seized. Warrants similar to the one here are routinely upheld as long as they are supported by probable cause. See, e.g., U.S. v. Hernandez-Escarsega, 886 F.2d 1560, 1567 (9th Cir. 1989); U.S. v. Sawyer, 799 F.2d 1494, 1508 n.15 (11th Cir. 1986); U.S. v. Brien, 617 F.2d 299, 306 (1st Cir. 1980).

2. Scope of Search

The rule recognized in U.S. v. Chen, 979 F.2d 714, 717 (9th Cir. 1992), that even if a warrant is valid, all documents seized may be suppressed if the police "flagrantly disregarded" the warrant's terms, is not applicable here. The district court found most of the documents were covered by the warrant and the officers "were motivated by considerations of practicality rather than by a desire to engage in indiscriminate 'fishing.'" Chen, 979 F.2d at 717 (citations and internal quotations omitted. See also U.S. v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982). This finding is not clearly erroneous. Although the officers seized some items clearly outside the warrant's scope, Appellants do not suggest the police exceeded the "scope of the warrant in the places searched," Waller v. Georgia, 467 U.S. 39, 44 n.3, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984) (emphasis added); used the warrant as a pretext to search for evidence of unrelated crimes, U.S. v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978); or tried to use items outside the warrant's scope against the defendants at trial. U.S. v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988). The district court properly suppressed only items not covered by the warrant.

B. Search of Charles Meng's Apartment

1. Probable Cause

We reject Charles Meng's argument that the warrant authorizing the search of his apartment was not supported by probable cause. The affidavit and supporting documents established Meng 1) was Suma's "Vice President of Finance" and was involved in the fraudulent scheme, 2) took Suma records home in the past and 3) shared with Mark Meng a safe deposit box containing a large amount of cash. They also established that immediately after the search of Suma's business offices, Mark Meng and an "unidentified man" were seen loading papers from the safe deposit box into a "small blue car" and that Charles Meng owned a small, blue Mercedes. Considering the "type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences" about where such evidence ...


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