United States v. Walter Pritchard

Citations: 745 F.2d 1112; 1984 U.S. App. LEXIS 17969Docket: 83-1763

Court: Court of Appeals for the Seventh Circuit; October 4, 1984; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Walter Pritchard was convicted in a bench trial of multiple offenses related to unlawful possession of firearms and electronic surveillance equipment, violating 18 U.S.C. and 26 U.S.C. He received concurrent two-year prison sentences for three counts and two years probation for one count. On appeal, Pritchard challenged the search warrant's validity, arguing that the affidavit contained false statements and lacked probable cause, thus claiming error in the denial of his request for a Franks evidentiary hearing. He also contended that the evidence presented at trial was insufficient to support his convictions. The appellate court affirmed the conviction, noting the government's evidence included surveillance and testimonies from informants. Notably, during a conversation with FBI agents, Pritchard identified himself as a skilled wiretapper and discussed his possession of firearms and electronic eavesdropping devices. Informant John Forbes recorded conversations with Pritchard that detailed his knowledge of law enforcement radio frequencies and showcased various firearms and surveillance equipment in Pritchard's possession.

On March 10, 1981, Forbes recorded a meeting with the appellant, during which the appellant confessed to a burglary executed while impersonating a deliveryman. He admitted to carrying a gun only during burglaries and discussed using silencers, tools for car theft, and having previously stolen and "cleaned up" his van. This information, alongside details from FBI surveillance and an unidentified informant, prompted the FBI to obtain search warrants for the appellant's residence in Chicago and his van. The warrant specifically aimed to locate a "blue box" device used to evade long-distance telephone charges and other wiretapping equipment, which fell under violations of Title 18, U.S.C. Sections 1343 and 2512(1)(b).

On March 16, 1981, FBI agents executed the search, which lasted three hours. They forcibly opened a locked suitcase, discovering two pistols, a silencer, a short-barreled shotgun, ammunition, handcuffs, disguises, and several electronic devices. Agent Wilmore, a government expert witness, described a briefcase (Exhibit 11) containing a tape recorder, an amplifier, a voice activation unit, and a hidden microphone capable of surreptitiously recording conversations. He explained that the device could activate upon opening the briefcase latch and could be set to record only when sounds were detected.

Additionally, Exhibit 12 was a briefcase with a built-in FM radio receiver, designed to receive signals at a specific frequency. Although Agent Wilmore could not definitively prove it was intended for surreptitious interceptions, he noted that modifications could allow it to function as such. However, he was unable to activate the suspected transmitter found within the briefcase.

Agent Wilmore described government exhibit 13, an attache case equipped with an FM radio receiver, telescoping antenna, concealed microphones, and a magnetic switch for activating the radio. This configuration allows the case to intercept communications surreptitiously when connected to a tape recorder, as evidenced by the functionality outlined. Appellant filed several pre-trial motions, including a motion for a Franks hearing regarding the validity of a search warrant for his residence, which was denied by a magistrate. The district court reviewed the motion de novo and adopted the magistrate's recommendation. Appellant waived his right to a jury trial and was found guilty on all counts on February 24, 1983. 

On appeal, appellant argues that he should have received an evidentiary hearing based on the Franks v. Delaware standard, which requires such a hearing if a defendant shows substantial evidence that an affiant included false statements in the warrant affidavit that were crucial to establishing probable cause. Appellant claims to have made this showing by highlighting inaccuracies in the affidavit provided by Agent Scigalski. However, the court found that appellant did not sufficiently demonstrate that Scigalski knowingly included false information or had serious doubts about its truthfulness, with the exception of one minor inaccuracy deemed insufficient to invalidate the entire warrant. The affidavit detailed that the search warrant was for apartment 903 at 3930 Pine Grove, Chicago, occupied by Walter Dewey Pritchard, a convicted felon according to FBI records.

Pritchard is identified as a suspected burglar and wiretapper based on investigations by the FBI and Chicago Police. On February 14, 1981, he claimed to be "Wally the Wiretapper," stating he was the second-best in the field, after Richard Cain, a deceased wiretapper. Pritchard also owned a handgun. FBI agents conducted surveillance from January 31 to March 1, 1981, observing him meeting with known burglar Robert Siegel and driving a 1979 Chevrolet Van, which he used to visit an auto paint garage where it was repainted. Pritchard was seen "casing" Kosinski's Jewelry Store on multiple occasions in February 1981.

During this period, he communicated with a reliable confidential source (source 1) about his expertise in bypassing burglar alarms and recruiting a burglary team. He showed source 1 a "blue box," a device used to avoid long-distance phone charges, and displayed a suitcase containing eavesdropping equipment. Another source (source 2), also reliable, met with Pritchard in early March 1981, during which Pritchard reiterated his plans to burglarize a bank and demonstrated the "blue box." He was observed using this device at a public pay telephone and revealed his residence at a high-rise apartment in Chicago, where he stored his equipment.

Physical surveillance detailed in the affidavit was conducted by the affiant or reported by FBI agents who observed the subject, Pritchard. Information attributed to Source 1 was provided directly to the affiant, while Source 2's information was relayed through another agent. Sources 1 and 2 described a device used by Pritchard to bypass toll charges as a black, palm-sized plastic box with switches. Pritchard was repeatedly seen entering and exiting a specific location in Chicago.

The appellant contends that the affiant's characterization of him as a "suspected burglar and wiretapper" lacks factual support, alleging it was made with reckless disregard for the truth. The appellant refers to an FBI memo labeling him a "convicted federal felon and believed wiretapper," but the court dismisses this argument, finding no substantial evidence that the affiant knowingly provided false information.

The appellant also questions the credibility of Agent Bogan, who claimed the appellant was known as "Wally the Wiretapper." The appellant submitted his own affidavit and that of a bartender denying these statements were made. The court deemed the appellant’s affidavit self-serving and not sufficient for a Franks hearing. The bartender’s affidavit contradicts Bogan’s claims but does not establish that the affiant was aware of any inconsistency at the time of the affidavit. 

The court referenced a precedent indicating that mere allegations of an informant's dishonesty do not require a Franks hearing unless there is evidence of deliberate or reckless misrepresentation by a government agent. It ultimately concluded that even if the statements attributed to the appellant were untrue, the remaining evidence still supported the magistrate's probable cause finding for issuing the search warrant.

Appellant challenges multiple allegations in specific paragraphs of an affidavit, asserting that certain events were not documented in FBI surveillance reports and therefore could not have occurred. The appellant argues that the absence of these events in the reports indicates they are false, or that the affiant should have known this. However, the government clarifies that its information source is not limited to the available surveillance reports. The appellant has not demonstrated that the alleged events did not happen, undermining the basis for a Franks hearing. 

The appellant contests the reliability of statements from nongovernmental informants used by the affiant, but it is the affiant's state of mind that matters. There is no evidence that the affiant, Agent Scigalski, knew or should have known the informants’ statements were false. A Franks violation requires proof that the affiant was aware of or acted with reckless disregard for the truth regarding the informants' credibility. Allegations against third-party informants do not suffice for a Franks hearing.

The appellant's claim regarding the use of a "blue box" to evade long-distance call charges is dismissed, as personal telephone records do not negate the possibility of using such a device at payphones. The distinction made about how a "blue box" is used—whether attached to or held next to a phone—is deemed immaterial. Furthermore, the affidavit is found to adequately establish probable cause for the search warrant, as the magistrate’s determination is given considerable weight and should only be overturned if the affidavit lacks specific facts that reasonably link the items sought to the alleged crime.

The affidavit established a "substantial basis" for probable cause to issue a search warrant, consistent with the Supreme Court's "totality of the circumstances" approach from Illinois v. Gates. This approach replaced the stricter requirements of assessing an informant's credibility and reliability, allowing for a more practical evaluation of the situation. The magistrate's role is to determine whether there is a fair probability of finding contraband based on the affidavit's circumstances, including the informants' credibility.

The appellant argued that the affidavit's support for probable cause regarding a "blue box" and wiretapping equipment was insufficient due to a lack of independent corroboration of the informants' claims. However, the government presented additional corroborative evidence that supported the reliability of the facts presented. Specifically, the affiant noted that the appellant was already a suspect in wiretapping, and his self-identification as "Wally the Wiretapper" reinforced this suspicion. Furthermore, FBI observations of the appellant removing cases from his vehicle aligned with the informants' descriptions, and the appellant's residence was verified through surveillance.

Cross-corroboration from multiple informants, who provided consistent information based on personal knowledge and had a track record of accuracy, further enhanced the affidavit's credibility. Collectively, these factors justified reliance on the informants' information, and combined with the FBI's investigation, they supported the magistrate's probable cause finding. The appellant also contended that the affidavit did not support probable cause for wiretapping equipment specifically, asserting a distinction between eavesdropping and wiretapping equipment.

The court agrees with the government that a "hypertechnical" interpretation of affidavits is inappropriate, referencing the Supreme Court's guidance in Gates and the Seventh Circuit's ruling in United States v. Gaertner. The search warrant was issued to seize items illegal under 18 U.S.C. § 2512(1)(b), which prohibits devices used for surreptitious interception of communications, including eavesdropping equipment. The affidavit sufficiently supported the magistrate's probable cause determination. 

The appellant claims the search warrant lacked particularity, allowing agents excessive discretion, resulting in an overbroad seizure of all portable electronic items in the residence. However, the court clarifies that while warrants must describe items with reasonable specificity, they do not need to be overly detailed. The warrant, which specifically authorized the seizure of a "blue box" and electronic wiretapping equipment related to wire fraud and interception devices, was deemed sufficiently particular under the Fourth Amendment. 

The court also finds the scope and duration of the search reasonable, as it was necessary to locate small electronic devices, justifying entry into containers where such items could be found. The appellant's argument regarding the insufficiency of evidence for conviction on Count II is evaluated under the standard that considers evidence in favor of the government. The relevant statute indicates that possessing devices designed for surreptitious interception constitutes a federal offense, and the court concludes that a rational trier of fact could find the elements of the crime proven beyond a reasonable doubt.

The statute under section 2512 targets devices specifically designed for surreptitious listening, distinguishing between devices primarily intended for such use and those that may have dual purposes, including lawful uses. The focus is on whether the principal use of the device is for wiretapping or eavesdropping. The court affirmed that Exhibit 11, which included a tape recorder, amplifier, voice activation unit, power source, and concealed microphone, was sufficient evidence for conviction. Testimony from Agent Wilmore established that the apparatus was designed for covert recording of conversations, countering the appellant's claims that the equipment was outdated and incapable of functioning surreptitiously. The appellant's arguments regarding the condition and usability of the equipment were unsupported by the record.

Regarding firearm possession, the appellant challenged the sufficiency of evidence for knowing possession of unregistered firearms found in a locked suitcase at his apartment. He denied ownership, claiming the suitcase belonged to someone else and noted the absence of his fingerprints on the weapons. However, the court concluded that a rational jury could infer that the appellant knowingly possessed the firearms, emphasizing that the unlawful act is possession rather than ownership. The legal standard allows for proof of actual or constructive possession to suffice in establishing knowledge of unregistered firearms, as supported by precedents.

Evidence indicates that the appellant constructively possessed firearms seized from his residence, where he had dominion and control. This inference is supported by prior statements made by the appellant regarding his possession of a short-barreled shotgun and a silencer just nine days before the search, as well as the identification of these firearms by informant Forbes during a visit to the appellant's van. Additionally, government agents observed the appellant's reaction upon being shown the seized firearms, which bolstered the inference of knowing possession, despite the absence of his fingerprints on the items. The failure to mention the firearms in the search warrant or related reports does not diminish the evidence of possession. The trial court's judgment is affirmed, as the affidavit for probable cause was deemed adequate, and the appellant's argument regarding the informant's credibility was found to lack relevance due to timing. The case also touches on the exclusionary rule as outlined in *United States v. Leon*, which permits evidence admission despite a potentially invalid search warrant if the officers acted reasonably in their belief of probable cause. The appellant was found guilty of multiple counts related to firearm possession, including violations of 18 U.S.C. § 1202(a)(1) and 26 U.S.C. § 5861(d).