United States v. Sanders , 104 F. App'x 916 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.
JAMES E. SANDERS; NORVELL
PRESTON; DAVID MARTIN,
Defendants-Appellees,
 No. 03-4890
and
K&C TRUCKING COMPANY,
INCORPORATED, a/k/a Lone Wolf
Transportation, Incorporated, a/k/a
Justin Transportation, Incorporated,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Jackson L. Kiser, Senior District Judge.
(CR-02-125)
Argued: June 4, 2004
Decided: July 29, 2004
Before WIDENER and SHEDD, Circuit Judges, and
David R. HANSEN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
2 UNITED STATES v. SANDERS
COUNSEL
ARGUED: Thomas Ernest Booth, Criminal Division, Appellate Sec-
tion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Sidney Harold Kirstein, Lynchburg, Virginia, for
Appellees. ON BRIEF: John L. Brownlee, United States Attorney,
Sharon Burnham, Assistant United States Attorney, Roanoke, Vir-
ginia, for Appellant. John E. Falcone, Lynchburg, Virginia, for
Appellee Martin; Joseph A. Sanzone, SANZONE & BAKER, P.C.,
Lynchburg, Virginia, for Appellee Sanders.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A federal grand jury indicted K&C Trucking Company ("K&C")
and several K&C officials and employees (collectively "K&C") under
18 U.S.C. §§ 371, 1001, and 1002, for one count of conspiracy and
seventeen counts of making false statements. The charges arise from
K&C’s alleged attempt to conceal violations of federal highway
safety regulations that limit the hours of service by commercial truck-
ers. Before trial, K&C moved to exclude evidence that the United
States had seized pursuant to a search warrant during a search of
K&C’s business premises. The search warrant had been obtained by
a Special Agent of the United States Department of Transportation
("DOT") Office of Inspector General ("DOT-IG" or "IG"). Although
the district court concluded that no constitutional violation had
occurred, it nonetheless invoked its "supervisory power" and excluded
the evidence because it found that the DOT-IG had exceeded his
authority under the Inspector General Act of 1978 and had acted in
"bad faith." The United States now appeals the exclusion order pursu-
ant to 18 U.S.C. § 3731. For the reasons set forth below, we reverse
the exclusion order and remand for further proceedings.
UNITED STATES v. SANDERS 3
I
The district court found the following facts to be established. In
March 1998, the DOT Office of Motor Carriers ("OMC") received a
letter from a former K&C employee stating that K&C management
required its tractor-trailer drivers to drive more hours than are legally
permitted and to submit false driver log books. The former employee
also stated that K&C management directed its drivers to transport
hazardous materials in an improper manner.
Based on this letter, a DOT official informally requested records
from K&C during an on-site inspection at K&C’s Rustburg, Virginia,
office. K&C refused this request. OMC then issued an administrative
subpoena for the production of documents, but K&C refused to com-
ply with this subpoena.
On October 22, 1998, Special Agent Eric Johnson of the DOT-IG
submitted to a federal magistrate judge in the Western District of Vir-
ginia an application and affidavit for a warrant to search K&C’s Rust-
burg premises and to seize certain documents that Agent Johnson
alleged would establish violations of federal safety rules and regula-
tions by K&C and its drivers. The magistrate judge issued the search
warrant that day, authorizing law enforcement agents to search the
K&C office and all trucks on the premises for certain categories of
documents. The following day, approximately forty law enforcement
officers, many dressed in "full combat gear"1 executed the search war-
rant and seized 103 boxes of documents and several computer
records. The officers placed the K&C employees who were at the
office that day in an employee kitchen and held them there for at least
four hours while the search was conducted. During the search an
OMC official stated to K&C employees that the search would not
have occurred had K&C complied with the OMC subpoena. The
search attracted the attention and presence of some local media, and
one news report indicated that reporters had been promised a detailed
story from federal agents at another time.
1
From reading the district court’s opinions, it appears that the term
"full combat gear" refers to bullet-proof vests and sidearms.
4 UNITED STATES v. SANDERS
On the same day that the magistrate judge issued the search war-
rant, federal grand jury subpoenas were issued in the Western District
of Virginia at the request of an Assistant United States Attorney
("AUSA") for the same documents that were the subject of the search
warrant. The grand jury subpoenas directed K&C to produce the sub-
ject documents on November 17, 1998. After these subpoenas were
served on K&C, discussions between counsel for K&C and the
United States confirmed that all documents subject to the subpoenas
were in the United States’ possession as a result of the search. Conse-
quently, the United States did not require anyone from K&C to appear
before the grand jury.
In November 1998, K&C joined a lawsuit in the United States Dis-
trict Court for the District of Columbia to challenge the legality of the
search of its office and seizure of its records. That case eventually
reached the circuit court of appeals, which examined the scope of the
investigative authority of the DOT-IG under the Inspector General
Act of 1978 (as it existed in 1998). See Truckers United For Safety
v. Mead, 251 F.3d 183 (D.C. Cir. 2001) ("Mead I"). The Mead I court
summarized its decision (in pertinent part) as follows:
In keeping with its mission to enforce motor carrier safety
regulations, the [OMC] initiated compliance review investi-
gations into appellants’ record keeping practices. As part of
that effort, the [DOT-IG] was engaged to use its purported
search and seizure authority to obtain appellants’ business
records. Under the legal framework in effect at the time of
the underlying events, the Inspector General Act of 1978,
the Inspector General ("IG") had no authority to engage in
the kinds of criminal investigations at issue here — criminal
investigations that are at the heart of an agency’s general
compliance enforcement responsibilities. We therefore hold
that appellants are entitled to the return of records and other
property seized from them during the IG’s ultra vires inves-
tigations and seizures.
251 F.3d at 185 (internal citation omitted). Subsequently, on consider-
ation of a request for attorneys’ fees under the Equal Access to Justice
Act, the Mead district court concluded that the DOT-IG’s legal posi-
tion was not "substantially justified" and, therefore, awarded fees. See
UNITED STATES v. SANDERS 5
Truckers United for Safety v. Mead, 201 F. Supp. 2d 52 (D.D.C.
2002) ("Mead II").2
In May 2002, the DOT-IG returned the documents to K&C. Some-
time thereafter, counsel for the United States informed K&C’s coun-
sel that the investigation into K&C was ongoing and that the
documents should be preserved.
On September 4, 2002, a federal grand jury in the Western District
of Virginia issued subpoenas to K&C for the production of all records
that were seized during the 1998 search. These subpoenas also com-
manded production of similar documents dating from September 2001
forward. K&C moved to quash the subpoenas, but the district court
denied the motion. K&C then produced the documents, and the grand
jury thereafter issued the indictment.
II
Before trial, K&C moved to exclude all of the evidence seized dur-
ing the 1998 search. K&C argued that in light of Mead I, the evidence
was "improperly seized in violation of the defendants’ fourth amend-
ment rights to be free of unreasonable searches and seizures." The
district court resolved this motion in two memorandum opinions.
In the first memorandum opinion, the district court — relying on
Mead I — concluded that the 1998 search warrant was invalid
because the DOT-IG’s actions were ultra vires. The district court also
concluded that the 1998 grand jury subpoenas were invalid because
they were part of the invalid 1998 DOT-IG investigation, and the
2002 grand jury subpoenas were invalid under Silverthorne Lumber
Co. v. United States, 251 U.S. 385 (1920), because they sought the
documents that were previously seized pursuant to the 1998 search war-
rant.3 Finally, the district court concluded that no constitutional viola-
2
The DOT-IG successfully challenged other aspects of the fee award,
but it did not challenge this conclusion. See Truckers United for Safety
v. Mead, 329 F.3d 891, 894 n.5 (D.C. Cir. 2003).
3
In Silverthorne, the Supreme Court reversed a contempt citation
against a company for refusing to comply with an order enforcing grand
jury subpoenas. The Court found that the government had illegally seized
records from the company and then used the knowledge it had gained
from the seizure to have the grand jury call for production of the docu-
ments. 251 U.S. at 390-92.
6 UNITED STATES v. SANDERS
tion had occurred because Agent Johnson’s affidavit in support of the
1998 search warrant "fully establishes probable cause" and the 1998
search "would have been valid except for the agent’s lack of authority
to conduct the investigation."
Following supplemental briefing by the parties, the district court
filed the second memorandum opinion to address "the remaining
question [of] Defendants’ remedy for a statutory violation that does
not rise to constitutional proportions." The district court noted that
K&C urged it "to invoke its supervisory powers and suppress the evi-
dence" in order to "promote judicial integrity, as well as deter future
illegal conduct where law enforcement officials willfully engage in
lawless conduct." After analyzing caselaw concerning the supervisory
power of federal courts to implement a remedy for a non-
constitutional violation, the district court stated that the case involves
"neither a mere technical violation of the Inspector General Act of
1978 nor a violation of the statute that rises to constitutional propor-
tions." The district court then concluded:
[I]t appears that a violation of a statute or regulation —
without more — is insufficient grounds to apply the exclu-
sionary rule. But, if additional elements of bad faith, or
unreasonable or outrageous conduct exist, then a federal
court may use its supervisory powers to exclude the evi-
dence obtained in violation of a statute.
Although the district court observed that it was "unable to point to
one egregious or reckless act that taints the conduct in this case," it
held that based on "the totality of the circumstances — such as the
IG’s plain disregard of the congressional limitations on its authority
and the manner in which the IG executed the 1998 warrant," the
DOT-IG’s conduct amounted to "bad faith" and "warrants the sup-
pression of the evidence seized pursuant to the 1998 search warrant
and the 1998 and 2002 grand jury subpoenas."
In support of this ruling, the district court found that the plain lan-
guage of the Inspector General Act and a 1989 Department of Justice
Office of Legal Counsel opinion4 put the DOT-IG on notice that it
4
See Inspector General Authority to Conduct Regulatory Investiga-
tions, 13 Op. Off. Legal Counsel 54 (1989) ("1989 OLC Opinion").
UNITED STATES v. SANDERS 7
had no authority to participate in the 1998 investigation. The district
court also considered it significant that the DOT-IG and OMC were,
in the course of the K&C investigation, engaged in a "coordinated
effort" that "required the approval of senior DOT officials." Further,
the district court pointed to the conclusion in Mead II that the DOT-
IG’s legal position was not "substantially justified" as evidence that
the DOT-IG should have known it could not participate in the 1998
K&C investigation. The district court also found "that the circum-
stances surrounding the [K&C] investigation and the manner in which
the IG conducted the investigation support Defendants’ contention
that the IG abused its authority." The district court pointed primarily
to the facts surrounding the execution of the 1998 search warrant, not-
ing that "the manner in which the IG executed the . . . warrant appears
grossly disproportionate to the nature of the alleged violations."
On appeal, the United States primarily argues that the district court
erred by invoking its supervisory power to exclude the evidence from
trial.5
5
We note that although the United States argued below that it lawfully
obtained the evidence pursuant to the 1998 grand jury subpoenas, it does
not make that argument on appeal. See generally United States v. Brai-
nard, 690 F.2d 1117, 1126 (4th Cir. 1982) (holding that grand jury sub-
poenas constituted an independent source for evidence); United States v.
Eng, 971 F.2d 854, 859-61 (2d Cir. 1992) (discussing inevitable discov-
ery rule in context of grand jury subpoenas). Instead, in addressing the
subpoena issue, the United States argues that the district court improp-
erly quashed the subpoenas issued by the 2002 grand jury. However,
while the district court found that the 2002 grand jury subpoenas were
"invalid," it did not quash them. Indeed, the district court denied K&C’s
motion to quash those subpoenas, and the grand jury had access to the
K&C documents before it issued the indictment. Therefore, we find no
merit to this contention. The United States also asserts in a brief footnote
that the district court erred by not considering whether the 2002 grand
jury could have obtained the evidence from an independent source or
whether the evidence would have been inevitably discovered. We find
this cursory assertion insufficient to warrant a ruling on this basis.
8 UNITED STATES v. SANDERS
III
"The function of a criminal trial is to seek out and determine the
truth or falsity of the charges brought against the defendant. Proper
fulfillment of this function requires that, constitutional limitations
aside, all relevant, competent evidence be admissible, unless the man-
ner in which it has been obtained — for example, by violating some
statute or rule of procedure — compels the formulation of a rule
excluding its introduction in a federal court." Lopez v. United States,
373 U.S. 427, 440 (1963). When, as here, a federal court attempts to
formulate such a rule of exclusion, it does so under its inherent or
supervisory power, which "permits federal courts to supervise ‘the
administration of criminal justice’ among the parties before the bar,"
United States v. Payner, 447 U.S. 727, 735 n.7 (1980) (citation omit-
ted), and "extends to policing [search and seizure] requirements and
making certain that they are observed," Rea v. United States, 350 U.S.
214, 217 (1956). This "inherent power to refuse to receive material
evidence is a power that must be sparingly exercised," Lopez, 373
U.S. at 440, and is not to be invoked in every case of illegality,
Payner, 447 U.S. at 734.
"The use of the exclusionary rule to remedy statutory violations, as
an exercise of the supervisory power, requires an exercise of discre-
tion on the part of the court." United States v. Searp, 586 F.2d 1117,
1123 (6th Cir. 1978). We therefore employ the abuse of discretion
standard to review the district court’s ruling. Generally, we will find
that a district court has abused its discretion if its conclusion "is
guided by erroneous legal principles" or "rests upon a clearly errone-
ous factual finding." Westberry v. Gislaved Gummi AB, 178 F.3d 257,
261 (4th Cir. 1999). Further, even if a district court applied the correct
legal principles to adequately supported facts, its exercise of discre-
tion "is not boundless and subject to automatic affirmance." Id.Instead, we are "obligated" to review the record and the reasons
underlying a district court’s ruling, and we must reverse if we have
a "definite and firm conviction that the court below committed a clear
error of judgment in the conclusion it reached upon a weighing of the
relevant factors." Id. (citation and internal quotation marks omitted).
Neither the district court nor the parties have cited to us any cases
in which we have considered whether a criminal defendant is entitled
UNITED STATES v. SANDERS 9
to the exclusion of evidence because a government agent involved in
the criminal investigation exceeded his authority. However, we have
considered this issue on several occasions and appear to have been
consistent in rejecting exclusion as a remedy. See United States v.
Mason, 52 F.3d 1286, 1289 n.5 (4th Cir. 1995) ("The fact that a Cus-
toms Agent who was not technically authorized to conduct the search
did so does not rise to the level of a constitutional violation warrant-
ing suppression of the evidence seized . . . under these circum-
stances"); United States v. Jones, 13 F.3d 100, 103 (4th Cir. 1993)
("we do not think in any event that the appropriate remedy for an
unauthorized [postal inspector] investigation in this case would be
suppression of the evidence obtained or reversal of the conviction");
United States v. Walden, 490 F.2d 372, 376-77 (4th Cir. 1974) (mili-
tary investigation of civilian crimes in violation of regulations pursu-
ant to the Posse Comitatus Act did not warrant "extraordinary remedy
of an exclusionary rule"). Even so, we have indicated that exclusion
may be an appropriate remedy in cases involving "severe official mis-
conduct born of malice, caprice or brazen lawlessness." United States
v. Neiswender, 590 F.2d 1269, 1271-72 (4th Cir. 1979) (declining to
reverse conviction based on postal authorities’ alleged excess of
authority in obtaining warrant for non-postal offense but noting that
exclusion may be appropriate); see also Walden, 490 F.2d at 377("Should there be evidence of widespread or repeated violations in
any future case, or ineffectiveness of enforcement by the military, we
will consider ourselves free to consider whether adoption of an exclu-
sionary rule is required as a future deterrent").6
The district court did not analyze the facts of this case under this
standard, but it did conclude that the DOT-IG’s violation of the
Inspector General Act was sufficient to warrant exclusion of the evi-
dence because the DOT-IG acted in "bad faith."7 In this regard, the
6
In Payner, the Supreme Court noted that "Federal courts may use
their supervisory power in some circumstances to exclude evidence taken
from the defendant by willful disobedience of law." 447 U.S. at 735 n.7
(citation and internal quotation marks omitted).
7
We note that the district court’s order is premised on the DOT-IG’s
violation of the Inspector General Act rather than Federal Rule of Crimi-
nal Procedure 41, which governs the issuance of search warrants. See
10 UNITED STATES v. SANDERS
district court properly recognized that exclusion of trial evidence is
not available to remedy all violations of this sort and that some type
of extreme government misconduct must be present. The question we
must now answer is whether the facts underlying the district court’s
"bad faith" conclusion constitute the type of "severe official miscon-
duct" that justifies the exercise of supervisory powers. We believe
that they do not.
The district court found the DOT-IG’s conduct to constitute "bad
faith" in part because of "the manner in which the [DOT-IG] executed
the 1998 warrant." As to this finding, the district court pointed to: (1)
the number of law enforcement officers who executed the search and
the manner in which many of them were outfitted (i.e., "full combat
gear"); (2) the sequestration of K&C employees in the employee
kitchen while the search was conducted; (3) the presence of local
media while the search was conducted; and (4) statements by an
OMC official that the search would not have occurred if K&C had
complied with the administrative subpoenas. We are not persuaded
that these circumstances reasonably support a finding of "bad faith,"
much less "severe official misconduct."
The search warrant authorized the law enforcement officers to
search K&C’s business office and all trucks on the premises (includ-
ing those that came onto the premises while the search was ongoing)
for a significant number of documents. The search lasted for at least
four hours and yielded 103 boxes of documents and some computer
files. While we are not convinced that the number of officers partici-
pating in a search would, under any circumstances, be relevant to this
type of inquiry, we believe in any event that the scope of this particu-
lar search reasonably justified a large number of officers. Moreover,
in light of the inherent dangers law enforcement officers face even in
their regular duties, we find nothing improper about the officers’
generally United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000)
("Non-constitutional violations of Rule 41 warrant suppression only
when the defendant is prejudiced by the violation or when ‘there is evi-
dence of intentional and deliberate disregard of a provision in the Rule’"
(citations omitted)).
UNITED STATES v. SANDERS 11
choice to carry sidearms (or other weapons) and wear protective gear
while they performed their search.
Additionally, the sequestration of K&C employees during the
search was consistent with caselaw in this circuit. Our holding in
United States v. Photogrammetric Data Services, Inc. is apt here:
Because they were in possession of a valid warrant to search
the premises . . . for evidence of the fraudulent billing
scheme, the agents . . . necessarily had authority to secure
the premises and detain the employees temporarily in order
to conduct the search with minimal interference. In particu-
lar, the agents, . . . suspecting a widespread fraudulent bill-
ing practice within the company, had a valid interest in
assuring that the altered timesheets they expected to find
could be seized before any employee or manager had the
opportunity to destroy them.
259 F.3d 229, 239 (4th Cir. 2001) (internal citations omitted).
Further, although the district court found that the search "attracted
the attention of the local media," it did not find that the media was
present at the request of law enforcement or that law enforcement
allowed the media onto K&C property. We are therefore hard-pressed
to understand why the media’s interest in this case demonstrates "bad
faith" on the part of the DOT-IG. We likewise do not believe that the
statements by the OMC official necessarily indicate any nefarious
motive for the search. Instead, those comments reflect the reality of
the situation: once K&C refused to respond to the administrative sub-
poenas, the search became a logical step in the investigation.
In addition to its criticism of the manner in which the search was
conducted, the district court also found that the DOT-IG acted in bad
faith because of its "plain disregard of the congressional limitations
on its authority." As to this finding, the district court pointed primar-
ily to the plain language of the Inspector General Act and the 1989
OLC opinion, both of which support the conclusion that the DOT-IG
was not authorized to conduct the K&C investigation. While we agree
that the DOT-IG likely acted in excess of its authority (a fact which
the United States now appears to concede) and that it may have been
12 UNITED STATES v. SANDERS
negligent in doing so, we do not believe that the circumstances of this
violation demonstrate "brazen lawlessness." See, e.g., Walden, 490
F.2d at 376 ("While the bulk of the evidence was obtained by violat-
ing the Instruction, there is totally lacking any evidence that there was
a conscious, deliberate or willful intent on the part of the Marines or
the Treasury Department’s Special Investigator to violate the Instruc-
tion or the spirit of the Posse Comitatus Act. From all that appears,
the Special Investigator acted innocently albeit ill-advisedly").
IV
In short, we are left with the "definite and firm conviction" that the
district court "committed a clear error of judgment in the conclusion
it reached upon a weighing of the relevant factors." Westberry, 178
F.3d at 261. The invocation of supervisory power to exclude evidence
from a criminal trial in order to remedy a government agent’s viola-
tion of statutory authority in a criminal investigation is an extreme
measure that must be reserved for cases involving "severe official
misconduct." This is not such a case. We therefore reverse the sup-
pression order and remand for further proceedings consistent with this
opinion.8
REVERSED AND REMANDED
8
K&C argues as an alternative that the evidence should be excluded
under the Fourth Amendment because of Agent Johnson’s "intentional or
reckless misstatement of authority" in the 1998 search warrant affidavit.
However, there have been no factual findings in this case to support such
a ruling. See generally Photogrammetric Data Servs., 259 F.3d at 237-38(detailing the strong showing that is necessary to obtain a hearing for a
false warrant affidavit under Franks v. Delaware, 438 U.S. 154 (1978)).