EUGENE JENKINS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5163 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1A-11A) is reported at 901 F.2d 1075. JURISDICTION The judgment of the court of appeals was entered on May 22, 1990. The petition for a writ of certiorari was filed on July 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the affidavit submitted in support of the warrant to search petitioner's house established probable cause for the search. 2. Whether the agents executing the search warrant properly seized certain items not explicitly described in the warrant. 3. Whether the district court properly found that petitioner's offense involved more than minimal planning and correctly computed his offense level. STATEMENT After a jury trial in the United States District Court for the Eastern District of Georgia, petitioner was convicted of theft from a federally insured bank, in violation of 18 U.S.C. 2113(b). He was sentenced to 27 months' imprisonment, to be followed by a three-year period of supervised release. Petitioner was also ordered to pay $6,029.70 in restitution. The court of appeals affirmed (Pet. App. 1A-11A). 1. The evidence at trial showed that petitioner used his position as an employee of the First Union Bank in Augusta, Georgia, to steal more than $25,000 in cash, $8,000 in checks, and $100,000 in securities from the bank. Gov't C.A. Br. 2. Petitioner was a security guard at First Union Bank in Augusta, Georgia. On January 1, 1988, the bank contracted with a private security firm, Sizemore Security, to provide guards for the bank. Sizemore, which offered employment to the security guards formerly employed by the bank, paid lower wages than did the bank. Petitioner and the other guards who accepted Sizemore's offer of employment thus suffered a pay cut, as well as a loss of benefits, as a result of the change in employment. Petitioner was unhappy with the change in employment, both because of the pay and benefit cut, and because he would not be able to work the night shift whenever he wanted, and thus would not be able to continue to attend college courses. Pet. App. 3A. On January 4, 1988, petitioner was assigned to work the 4:00 p.m. to midnight shift at the bank's building on Broad Street in Augusta. At 9:30 p.m. on that date, a silent alarm alerted the Augusta Police Department. Officer Thomas Givens, responding to the alarm, arrived at the bank at 9:32 p.m. Petitioner met Givens at the side door of the bank and told Givens that he knew the alarm had been triggered, even though the alarm cannot be heard or detected inside the bank. Pet. App. 3A. Upon investigation, Givens and petitioner, who were later joined by a representative of the company that serviced the bank's alarm and the bank's teller supervisor, determined that the night depository vault had not been locked, although the alarm had been set. The vault showed no sign of forced entry. Although the vault appeared to contain fewer bags than normal, the missing bags were not found after a search of the immediate area. An investigation the next day showed that $25,344.70 in cash, $8,498.99 in checks, and stock certificates with a current value of $101,741.64 were missing from the vault. Pet. App. 3A. 2. On January 20, 1988, FBI agent Ann Todd applied to a federal magistrate for a warrant to search petitioner's residence. Her accompanying affidavit recited the details of the theft from the First Union Bank's night depository vault; explained that none of the bank's cleaning crew had been in the building when the silent alarm was activated; and stated that the FBI's investigation had focused on petitioner because (1) he was the only person in the bank at the time the alarm was activated who had keys to the bank, (2) he was bitter over the change of employers, (3) he had told Givens about the alarm's activation even though he could not legitimately have known about it; and (4) he was the only person with access to the night depository vault who had refused to take a polygraph examination. Pet. App. 5A. The affidavit also stated that a veteran FBI agent had informed Todd that persons who have stolen money are likely to hide the money in their homes where it will be both safe and readily available. The affidavit listed the contents of the night depository on January 4, as reconstructed by bank employees. Those contents included bank depository bags and envelopes, deposit tickets, checks, stock certificates, and cash. The magistrate issued the warrant, which incorporated the affidavit's description of the evidence sought. Pet. App. 5A. On January 22, 1988, FBI agents executed the warrant. In the attic of petitioner's house, the agents found a tightly wrapped box containing Christmas decorations. At the bottom of the box, the agents discovered eight packets wrapped in aluminum foil that contained a total of approximately $19,000 in cash. In a bureau drawer in the master bedroom, the agents also found a bank bag from the Citizens and Southern National Bank (C & S) that contained $300 in cash and several letters to petitioner from a mortgage company. Pet. App. 3A-4A. 3. Petitioner was indicted for bank larceny under 18 U.S.C. 2113(b). At a suppression hearing, Agent Todd testified that the C & S bag did not match the description of any of the bags listed in the warrant. She explained, however, that the bag was seized because the agents believed that the depositors whose bags were stolen from the vault might not have mentioned that the C & S bag was inside a larger bag. The magistrate recommended that the motion to suppress be denied, finding that (1) the affidavit's recital of the veteran FBI agent's statement that persons who have stolen money usually keep the proceeds in their homes established a sufficient "nexus" between petitioner's house and the evidence sought, and (2) the agents were entitled to seize the C & S bag under the "plain view" exception to the warrant requirement. The district court adopted the magistrate's report, denied the motion, and admitted the evidence. Gov't C.A. Br. 8-9. At petitioner's trial, the government introduced evidence connecting some of the currency found in petitioner's house with cash stolen from the bank vault, and showing that petitioner, although in financial difficulty, had paid off a $2,200 arrearage on his mortgage after the January 4 theft. Gov't C.A. Br. 4 & nn. 2-3. 4. Petitioner's presentence report calculated his base offense level at four under Sentencing Guideline Section 2B1.1 ("Larceny, Embezzlement, and Other Forms of Theft"). The report recommended an eight-point increase in this level because the value of the cash, checks, and securities that petitioner took from the bank was $135,585.33 (see Section 2B1.1(b)(1)(I)), a two-point increase because the offense involved more than minimal planning (see Section 2B1.1(b)(4)), and a two-point increase because the offense involved abuse of a position of trust (see Section 3B1.3). Pet. App. 10A n.10. The resulting total offense level of 16, when combined with petitioner's criminal history category of I, produced a Sentencing Guidelines range of 21-27 months. Pet. App. 10A. In objections to the presentence report and at the sentencing hearing, petitioner argued that the securities he stole should be valued at $1,017, the replacement value of the stock certificates, rather than at $101,741, the value of the non-negotiable securities they represented, and that because his crime was one of opportunity, it did not involve more than minimal planning. The district court rejected those arguments and imposed a 27-month sentence. Gov't C.A. Br. 29. 5. The court of appeals affirmed. Pet. App. 1A-11A. Petitioner argued that the evidence seized during the search of his house should have been suppressed because Agent Todd's affidavit did not mention certain facts that, if included, would have prevented a finding of probable cause for issuance of the warrant. See id. at 5A-6A. Citing Franks v. Delaware, 438 U.S. 154, 171 (1978), the court noted that petitioner "would be entitled to an evidentiary hearing concerning the allegedly omitted facts" only if he could prove that (1) Todd had knowingly or recklessly omitted those facts, and (2) their inclusion would have prevented a finding of probable cause. Pet. App. 6A. The court then upheld the district court's rulings that the alleged omissions from the affidavit did not represent material misrepresentations or misstatements, id. at 6A, and that even if the omitted facts had been included in the affidavit, probable cause to search petitioner's house would have existed, id. at 6A-7A. The court based this conclusion on the affidavit's showing of probable cause that petitioner had committed the theft, the fact that the items stolen could have been hidden in a residence, and the statement in the affidavit by an experienced FBI agent that petitioner's home was the likely hiding place for the stolen items. Id. at 7A-8A. Petitioner also argued that the seizure of the C & S bag had exceeded the scope of the search warrant because the bag was not described in the warrant. The court concluded that the bag and its contents were properly seized under the "plain view" exception to the warrant requirement, because the searches of the bureau drawers in petitioner's bedroom and the C & S bag itself were within the scope of the warrant, the agents had probable cause to believe that the bag or its contents might have been stolen, and it was apparent that the letters inside the bag were evidence of motive. Pet. App. 8A-9A. The court of appeals also rejected petitioner's challenge to his sentence. Pet. App. 10A-11A. Agreeing with the government's argument that petitioner's sentence should be calculated according to the victim's loss, which is represented by the value of the property taken, the court held that in computing petitioner's sentence the district court had properly used the $101,741.64 face value of the securities stolen by petitioner rather than the $1,017 cost of replacing the stock certificates themselves. Id. at 11A. Finally, the court upheld as not clearly erroneous the district court's finding that in order to move the stolen goods out of the bank as quickly as he did, petitioner must have done some planning. Ibid. ARGUMENT 1. Petitioner initially contends (Pet. 14-16) that Agent Todd's affidavit did not establish probable cause to believe that any of the items stolen from the bank would be found at his house. The court of appeals correctly rejected this fact-bound contention. Probable cause to search a particular place exists if an issuing magistrate finds a "fair probability that contraband or evidence of a crime will be found in (that) place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "(T)he nexus between the objects to be seized and the premises searched can be established from the particular circumstances involved and need not rest on direct observation." United States v. Lockett, 674 F.2d 843, 846 (11th Cir. 1982). "(I)n weighing the evidence supporting a request for a search warrant, a magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found." United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987). Finally, "evidence that a defendant has stolen material which one normally would expect him to hide at his residence will support a search of his residence." United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977). In the present case, as the court of appeals correctly found, Agent Todd's affidavit provided the issuing magistrate with sufficient reason to believe that the stolen items would be found at petitioner's residence. The affidavit clearly established probable cause to believe that petitioner had committed the theft: he was the only employee in the bank at the time of the theft with keys to the bank; he knew that the silent alarm had sounded even though he could not have heard it; he was bitter over the change in the conditions of his employment; and he was the only person with access to the night depository vault who refused to take a polygraph test. The affidavit also recited the statement of an FBI agent with ten years' experience in investigating bank robberies and burglaries that petitioner's house was the likely hiding place for the stolen items. Because the combination of these facts would lead a reasonable person to believe that there was a "fair probability" that the contraband would be found in petitioner's house (Illinois v. Gates, 462 U.S. at 238), the courts below correctly ruled that the affidavit established probable cause for the search of the house. /1/ 2. Petitioner next claims (Pet. 16-19) that the FBI agents who executed the search warrant for his house exceeded the warrant's scope when they seized a C & S bag containing $300 and three letters from petitioner's mortgage company that was not described in the warrant. This claim too is without merit. The bag and its contents were lawfully discovered and seized in the course of the search. While the Fourth Amendment requires that a search warrant "particularly describ(e) the place to be searched, and the persons or things to be seized," and only items described in the warrant may be seized, United States v. Johnson, 713 F.2d 654, 660 (11th Cir. 1983), cert. denied, 465 U.S. 1030 (1984), an exception to this rule occurs "when in the course of performing a lawful search for an item listed on the warrant, the officers come across other articles of an incriminatory character." Id. at 660. In such circumstances, the articles may be seized under the "plain view" doctrine. Ibid. To justify application of this doctrine, the seizing officer must not have "violate(d) the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed," the "incriminating character" of the evidence must be "immediately apparent," and the officer must "have a lawful right of access to the object" to be seized. Horton v. California, 110 S.Ct. 2301, 2308 (1990) (internal quotation marks and citations omitted). In the present case, as the court of appeals correctly concluded, the C & S bag and its contents were properly seized under the plain view doctrine. The warrant described, inter alia, bank bags and various categories of documents and other items. It was reasonable for the agents to search for such articles in the bureau of the master bedroom. See United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir. 1982) ("a search may be as extensive as reasonably required to locate the items described in the warrant"), cert. denied, 464 U.S. 814 (1983); see also United States v. Ross, 456 U.S. 798, 820-821 (1982). The nature of the crime and the items taken gave the agents reason to believe that the C & S bag might have been stolen. It was reasonable for the agents, who were searching for small paper items like bills and stock certificates, to look inside the C & S bag. The letters from the mortgage company they found inside the bag were "immediately apparent" (Horton v. California, 110 S.Ct. at 2308) evidence of petitioner's motive to commit the theft. In light of these circumstances, the court of appeals properly concluded that "(t)he search did not exceed the scope of the warrant" (Pet. App. 9A). /2/ 3. Finally, petitioner argues (Pet. 19-21) that the district court erred in its application of the Sentencing Guidelines to his case. Specifically, petitioner alleges that the district court mistakenly increased his offense level for "more than minimal planning" under Guideline Section 1B1.1 and the accompanying Application Note, and incorrectly computed the amount of loss from the theft. These arguments lack merit and were properly rejected by the court of appeals. a. The phrase "more than minimal planning" is defined in Application Note (f) to Sentencing Guideline 1B1.1 as "more planning than is typical for commission of the offense in a simple form. 'More than minimal planning' also exists if significant affirmative steps were taken to conceal the offense." In this case, the district court made a factual finding that petitioner's removal of the stolen items from the bank involved "careful planning and execution" and showed that "significant affirmative steps were taken to conceal the offense." 6 R. 10. The court of appeals correctly ruled (Pet. App. 11A) that this finding was not clearly erroneous. See 18 U.S.C. 3742(c). The evidence presented at trial suggested that petitioner knew that when he opened the night depository vault, he would trigger the silent alarm. The district court could therefore reasonably conclude that he conceived a plan to remove the items from the vault and quickly transfer them to a hidden location from which he could take them away from the bank at a later time. The plan was so effective that petitioner was able to remove the stolen property, hide it so well that it was not discovered during subsequent searches by police officers and bank employees, and then return to the banking area to meet Officer Givens at the door of the bank when Givens arrived two minutes after the silent alarm had been triggered. Accordingly, petitioner's offense level was properly enhanced for "more than minimal planning" (Guideline 1B1.1). b. The district court correctly used the $101,741.64 face value of the stolen securities to enhance petitioner's sentence. Sentencing Guideline 2B1.1 states that the offense level should be calculated according to the amount of the "loss." /3/ Application Note 2 of the Commentary to this Guideline defines "loss" as the value of the property taken, damaged, or destroyed. Ordinarily, when property is taken or destroyed, the loss is the fair market value of the property at issue. When the market value is difficult to ascertain or inadequate to measure harm to the victim, the court may measure loss in some other way, such as reasonable replacement cost to the victim. Petitioner argues that because the stolen securities were non-negotiable, they should be valued at the $1,017 replacement cost of the stock certificates. This argument, however, rests on the mistaken premise that a defendant's ability to make use of stolen property is relevant to sentencing under the Guidelines. Application Note 2 to Section 2B1.1 expressly states that "in cases of the theft of a government check or money order, loss refers to the loss that would have occurred if the check or money order had been cashed. Similarly, if a defendant is apprehended in the process of taking a vehicle, the loss refers to the value of the vehicle even if the vehicle is recovered immediately." The Guidelines therefore contemplate that the value of a stolen item should be based on the market value of the property involved, not the value to the defendant or, in the ordinary case, the replacement value of the property. A victim can suffer no actual loss at all, yet the Guidelines mandate that the defendant's sentence be based on the value of the property he attempted to steal. In the instant case, as the court of appeals correctly found, "(petitioner) took from his victims securities that were worth $101,741.64 to those victims in some way and at some time" (Pet. App. 11A). Accordingly, the district court properly used this amount in computing petitioner's sentence. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General THOMAS M. GANNON Attorney SEPTEMBER 1990 /1/ Petitioner alleges a conflict between the decision below and the decision of the same court of appeals in United States v. Lockett, supra. We note that Lockett was decided prior to this Court's decision in Illinois v. Gates, supra; that the affidavit in the present case, which relied on the opinion of an experienced FBI agent to establish a nexus between the items sought and petitioner's house, would pass muster under the "substantial basis" test of Lockett, 674 F.2d at 846; and that in any event a claim of intra-circuit conflict does not warrant this Court's review. See Wisniewski v. United States, 353 U.S. 901, 901-902 (1957). The other cases alleged to be in conflict with the decision below are either readily distinguishable on their facts or are consistent with the decision of the court of appeals. See United States v. Savoca, 739 F.2d 220, 225 (6th Cir. 1984) (observation of known bank robbers in Phoenix, Arizona motel room does not, without more, establish probable cause to search room for evidence of Ohio bank robberies three months previously), vacated on other grounds, 761 F.2d 292 (6th Cir), cert. denied, 474 U.S. 852 (1985); United States v. Freeman, 685 F.2d 942, 949-951 (5th Cir. 1982) (affidavit states probable cause to believe that passports, personal identification papers, and bank records will be found at residence; court does not decide whether nexus existed to justify search of residence for items used in smuggling and distribution of cocaine); and United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970) (warrant valid where nexus rested, inter alia, on type of crime, nature of missing items, and normal inferences as to where criminal would hide stolen property). /2/ The cases upon which petitioner relies here, United States v. Gray, 484 F.2d 352 (6th Cir. 1973), cert. denied, 414 U.S. 1158 (1974), and Woo Lai Chun v. United States, 274 F.2d 708 (9th Cir. 1960), do not support his argument. In Gray, 484 F.2d at 355, it was not "immediately apparent" that rifles discovered during a warrant search for alcoholic beverages were evidence of other crimes. The court in Woo Lai Chun specifically found "no similarity between the facts in this case and those where stolen or contraband property, or articles closely related to that which was sought, have been held properly seized, even though not described in the search warrant." 274 F.2d at 712. /3/ This Guideline and the accompanying Application Notes were amended effective June 15, 1988, after petitioner's offense. See Sentencing Guidelines, App. C, at C.10-C.11 (Nov. 1989). The court properly considered the clarifying amendments in its review of petitioner's sentence. See United States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990).