United States v. Mancari, Bruno ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2996
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRUNO MANCARI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 248-01—John F. Grady, Judge.
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ARGUED FEBRUARY 21, 2006—DECIDED SEPTEMBER 1, 2006
____________
Before MANION, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. Bruno Mancari was convicted
by a jury of unlawful possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1), and sentenced to 41
months in prison. Mancari appeals his conviction, contend-
ing that the district court erred by denying his motion for a
hearing to challenge the search warrant that led to the
discovery of the gun and by permitting the prosecution to
introduce evidence regarding $6,500 in cash that was
discovered in his house. Mancari also appeals his sentence,
arguing that the district court failed to heed our post-
Booker jurisprudence in its consideration of his request
for a sentence below the advisory Sentencing Guidelines
range. For the reasons set forth below, we affirm Mancari’s
2 No. 05-2996
conviction but remand the case to the district court for
resentencing.
I
This fairly straightforward case has a rather involved
backstory. In 1988, Mancari pleaded guilty to federal drug
and mail fraud charges and served four years in prison.
Between the time of his release and the events leading up
to this case, he was not charged with any other crime. He
was, however, a suspect in the unsolved 1985 murder of
Joseph Russo, who just prior to his death had been served
with a subpoena to testify in an investigation of an auto
theft ring allegedly run by Mancari.
That case apparently remained cold for a number of
years. Then, in 1995, an inmate at a Wisconsin state prison,
Harold Merryfield, contacted authorities and implicated
Mancari in Russo’s murder, claiming that he had arranged
for Mancari and another man to use Merryfield’s mother’s
house in Burbank, Illinois, as a site for the murder and had
later removed the body from the house. Merryfield also told
investigators that he sometimes received mail (including
small cash payments) and visits from Mancari in prison.
The arrangement worked as follows: when Merryfield
wished to contact Mancari, he would have his daughter
Tammy contact Mancari using the phony name “Joanne.” If
Mancari wished to send a letter to Merryfield, he would use
Tammy Merryfield’s name and Merryfield’s mother’s old
house as a return address. Despite having gathered this
information from Merryfield, however, the police took no
action against Mancari at the time.
The pace quickened in January 2001, after investigators
from the Cook County Sheriff’s Department questioned
Peter Fisher, who Merryfield claimed had helped move
Russo’s body after the murder. Fisher generally corrobo-
rated Merryfield’s version of events, and his statement
No. 05-2996 3
apparently spurred the authorities to pursue Mancari more
seriously. Most importantly, police recruited Merryfield to
cooperate against Mancari. Merryfield contacted his
daughter and instructed her to call Mancari and ask him to
visit Merryfield. In a recorded conversation at the prison in
November 2001, Mancari and Merryfield discussed the
Russo murder investigation and Mancari agreed to send
Merryfield $5,000 for “legal fees” through the mail. Soon
thereafter, a certified letter was intercepted at the prison
addressed to Merryfield with Tammy Merryfield as the
return addressee. Inside the envelope was a check for
$5,000. Although the check itself did not identify the
drawer, it was issued by a branch of First Midwest Bank
located one-and-a-half miles from the auto dealership where
Mancari was employed as a sales manager. Upon further
investigation, authorities learned that the check was of a
type designed as a multi-part form. The top part of the form
consisted of the check itself, while the bottom two copies
typically were retained by the drawer as receipts.
On the basis of this information, a Cook County Circuit
Court judge issued a search warrant for Mancari’s home
to seize “official check receipts and any other money order
receipts or bank withdrawal records from Bruno Mancari to
Harold Merryfield” in connection with the investigation of
Russo’s murder. On January 8, 2002, police officers exe-
cuted the search warrant. Although they did not find the
financial records they sought, they discovered a loaded .38
caliber Derringer handgun in the drawer of a bedside
nightstand and $6,520 in cash in a garment bag in the
bedroom closet.
Soon after the search, Illinois authorities charged
Mancari with Russo’s murder. A jury acquitted him of the
charge, however, after Fisher, who appeared as a state’s
witness, contradicted his earlier statement to police by
testifying that he had witnessed Merryfield, not Mancari,
kill Russo. In March 2004, a federal grand jury indicted
4 No. 05-2996
Mancari for unlawful possession of a firearm by a felon.
After an initial trial, the jury deadlocked and a mistrial was
declared. Federal prosecutors then tried Mancari a second
time, this time obtaining a conviction. The district court
sentenced Mancari to 41 months’ imprisonment, the low
end of the applicable Guidelines range, stating that al-
though he would have liked to impose a lower sentence, he
lacked authority to do so.
II
A
Mancari first contends that the district court erred by
denying him a hearing to challenge the validity of the
search warrant that led to the discovery of the gun in
his bedroom. Such a hearing is required “where the defen-
dant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
warrant affidavit, and [ ] the allegedly false statement is
necessary to the finding of probable cause.” Franks v.
Delaware, 438 U.S. 154, 155-56 (1978).
Mancari takes issue with the clear error standard
of review that this court has applied in reviewing a district
court’s denial of a motion for a Franks hearing. As he sees
it, our approach is inconsistent with the Supreme Court’s
decision in Ornelas v. United States, 517 U.S. 690 (1996).
While the immediate issue before the Court in Ornelas
dealt with warrantless searches, id. at 691, the Court’s
ultimate holding about the standard of review for reason-
able suspicion and probable cause determinations followed
a discussion of both warrantless searches and those sup-
ported by a warrant, such as the one in Illinois v. Gates, 462
U.S. 213 (1983). Emphasizing that historical findings of
fact, either in support of a warrant or in support of an
action without a warrant, are entitled to deference, the
No. 05-2996 5
Court nonetheless concluded that “independent appellate
review of these ultimate determinations of reasonable
suspicion and probable cause” is necessary in order to
permit appellate courts to apply consistent legal standards.
517 U.S. at 697.
A showing that a warrant was based on a false statement
requires an examination of historical facts, not the eventual
legal determination that any given set of facts add up to
probable cause for the issuance of a warrant. For this
reason, we have regularly reaffirmed our clear error
standard of review since Ornelas. See Zambrella v. United
States, 327 F.3d 634, 638 (7th Cir. 2003); United States v.
Maro, 272 F.3d 817, 821 (7th Cir. 2001); United States v.
Roth, 201 F.3d 888, 891 (7th Cir. 2000). The First Circuit
has expressly rejected the argument Mancari presents. See
United States v. Owens, 167 F.3d 739, 747 n.4 (1st Cir.
1999). We agree with that court, and thus we decline
Mancari’s invitation to adopt the de novo standard of
review.
Turning to the merits of Mancari’s claim, the affidavit
submitted by Cook County Sheriff’s Investigator Louis
Schubrych in support of the warrant relied on the recorded
jailhouse conversation between Mancari and Merryfield, the
intercepted $5,000 check, and Merryfield’s statements
implicating Mancari in Russo’s murder. Mancari urged the
district court to find that he was entitled to a Franks
hearing primarily because the police were aware of the fact
that Merryfield was an extremely unreliable informant and
had given inconsistent explanations for how the murder
occurred. The district court rejected this argument, reason-
ing that “[e]ven taking Mancari’s alleged omissions regard-
ing criminal histories, drug use and inconsistent statements
by Merryfield at face value, these omissions are not mate-
rial. That is, inclusion of the information would not have
undermined the showing of probable cause.” The court
emphasized that “[t]he affidavit did not need to establish,
6 No. 05-2996
as Mancari seems to argue, probable cause to believe that
Mancari committed the murder,” but rather only probable
cause that bank receipts relating to Mancari and Merryfield
would be found in the house.
In his brief before this court, Mancari again emphasizes
Merryfield’s inadequacies as an informant, failing for a
second time to address the issue of the materiality of
Merryfield’s statements adequately. Mancari insists that
without the context Merryfield’s statements provided, the
“financial documents or correspondence between Mancari
and Merryfield simply would not constitute evidence of a
crime, subject to law enforcement seizure.” This argument
is unpersuasive. Mancari was a suspect in Russo’s murder
long before Merryfield made his statements to the police. In
addition, Merryfield’s claim that both he and Mancari were
involved in the Russo murder is strongly corroborated by
the recorded jailhouse conversation and the surreptitiously
mailed check. Even if Merryfield lied when he pegged the
murder on Mancari and, as Mancari argues, Merryfield is
the real murderer, the police still had probable cause to
search for the bank receipts in Mancari’s house as evidence
of that crime. “The critical element in a reasonable search
is not that the owner of the property is suspected of crime
but that there is reasonable cause to believe that the
specific ‘things’ to be searched for and seized are located on
the property to which entry is sought.” Wyoming v. Hought-
on, 526 U.S. 295, 302 (1999) (quoting Zurcher v. Stanford
Daily, 436 U.S. 547, 556 (1978)).
Since any false statements by Merryfield in the search
warrant affidavit were not material to the judge’s finding of
probable cause, the district court did not err by denying
Mancari’s request for a Franks hearing.
B
Mancari next argues that the district court erred by
permitting the government to introduce at trial testimony
No. 05-2996 7
about and photographs of the $6,500 discovered at his
house, evidence he contends was seized in violation of the
Fourth Amendment. We review the district court’s eviden-
tiary rulings for an abuse of discretion, United States v.
Heath, 447 F.3d 535, 538 (7th Cir. 2006), and the court’s
legal conclusion that the photographing of the money did
not constitute an unreasonable seizure de novo, see United
States v. Smith, 423 F.3d 25, 31 n.4 (1st Cir. 2005).
Mancari’s strategy at both his first trial and the retrial
was to cast doubt on whether the police really discovered
the gun at his residence, suggesting instead that they had
planted it there. The government, in turn, sought to
introduce testimony and photographs concerning the
discovery of the money at Mancari’s house in order to show
that Mancari had a motive to possess the gun for self-
protection. The government did not contend that Mancari’s
possession of the money was evidence of some further
illegality; it seemed to accept Mancari’s explanation that
the possession of such an amount of cash was routine for
the manager of an auto dealership.
During Mancari’s first trial, the district court refused to
allow the government to introduce a picture of Mancari’s
bedroom that included the pile of cash, apparently agreeing
with Mancari that this evidence was too prejudicial and
commenting that “[i]t raises the possibility that some juror
is going to wonder, hey, was he up to no good with all that
money?” At the second trial, however, Mancari’s lawyer
opened the door to discussion of the $6,500 by referring in
his opening statement to the discovery of the money while
setting forth his argument that police acted improperly in
executing the search warrant. At a sidebar after opening
statements were complete, the prosecutor said to the judge,
“I guess they are withdrawing their objection with respect
to us putting in photos of the money.” Mancari’s counsel
responded that Mancari was withdrawing his relevancy
objection, but continued to object to the admission of the
8 No. 05-2996
photos on “search and seizure grounds,” that is, that “the
search warrant didn’t authorize [the police] to seize the
money” or “to take a picture of the money.” After overruling
this objection, the district court allowed police officers to
testify regarding their discovery of the $6,500 and for
photographs of the money to be shown to the jury. The court
cautioned the jury, however, that “there is absolutely no
suggestion here that there is anything illegal about that
money or that it had been derived in an illegal manner.”
During closing arguments, the government suggested that
the $6,500 provided a motive for Mancari’s possession of the
gun, stating that: “He’s got a lot of money in the house. You
bet he’s going to have a loaded gun. He is protecting what’s
in his house.”
Although his argument on this point is not entirely
clear, we do not understand Mancari to be challenging the
introduction of testimony and photographs of the money on
relevancy grounds, a challenge that he appears to have
waived and that would in any case not be likely to succeed.
See United States v. Caldwell, 423 F.3d 754, 759 (7th Cir.
2005) (in a felon-in-possession case, “any evidence that
tended to make [ ] possession of the guns more or less
probable was relevant”). Instead, he contends only that the
district court erred in allowing the government to make use
of this evidence because the money was outside the scope of
the search warrant and therefore illegally seized. The
government responds that the garment bag fell within the
scope of the warrant, since it could have contained the
financial records that were the object of the search. Once
the money was in plain view, the government argues, the
officers were entitled to photograph it. The government also
points out that Mancari’s lawyers repeatedly raised the
issue of the $6,500 before the jury themselves. For example,
they cross-examined a state’s witness about the money in
an attempt to impeach the execution of the search warrant
and even published a photograph of the money during this
cross-examination.
No. 05-2996 9
As the Supreme Court explained in United States v. Ross,
456 U.S. 798 (1982):
A lawful search of fixed premises generally extends to
the entire area in which the object of the search may be
found and is not limited by the possibility that separate
acts of entry or opening may be required to complete
the search. Thus, a warrant that authorizes an officer
to search a home for illegal weapons also provides
authority to open closets, chests, drawers, and contain-
ers in which the weapon might be found.
Id. at 820-21. The government is correct that the search
warrant in this case, which authorized police to search
Mancari’s house for financial records, easily encompassed
the search of his bedroom closet and the garment bag. The
fact that the money was not an object of the search warrant
does not prohibit the police officers’ testimony about their
inadvertent discovery, since “[w]hen officers who are
lawfully on the premises pursuant to a valid search warrant
merely record what they observe there that is in plain view,
they do not invade legally protected privacy or any other
legal interest.” Platteville Area Apartment Assoc. v. City of
Platteville, 179 F.3d 574, 579 (7th Cir. 1999) (internal
citations omitted).
Nor did the photographing of the money by police consti-
tute an unreasonable seizure. Analogizing to Arizona v.
Hicks, 480 U.S. 321 (1987), the district court concluded that
by snapping a picture of a pile of cash that was in plain
view, the police did not “meaningfully interfere” with
Mancari’s “possessory interest” any more than did the
officer who recorded the serial number of Mr. Hicks’s stereo.
See id. at 324. At least one other circuit, employing the
same reasoning as the district court, has also concluded
that “the recording of visual images of a scene by means of
photography does not amount to a seizure because it does
not ‘meaningfully interfere’ with any possessory interest.”
10 No. 05-2996
Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992) (quoting
Hicks, 480 U.S. at 324). This analysis seems sound to us.
The government was therefore entitled to make a photo-
graphic record of the discovery of the money in a place that
the police were lawfully entitled to observe.
III
Finally, Mancari challenges the district court’s sentencing
decision, contending that the court failed to apprehend the
full extent of its discretion to decide on a reasonable
sentence in light of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), and our decisions
interpreting that case.
The district court accepted the Pre-Sentencing Report’s
calculation of the appropriate Guidelines sentencing range
as 41-51 months. Mancari did not dispute this calculation,
but argued for a below-Guidelines sentence based on what
he characterized as the overrepresentation of his crim-
inal history. In particular, Mancari argued that his previous
convictions had occurred 14 years earlier and that, in the
interim, he had not engaged in any criminal conduct and
had worked hard to support his family. He also pointed out
that under even the government’s theory of the case he
possessed a gun only for self-protection, not for any criminal
purpose. Finally, Mancari urged the district court to take
into account the fact that he had already served 16 months
in jail on the state murder charge of which he had been
acquitted and that he would almost certainly be deported to
Italy—where he had not lived since he was a young
child—upon his release from prison.
The district court appears to have been significantly
persuaded by Mancari’s arguments for lenience. The judge
said that he was “imposing the lowest sentence I can and I
would impose a lower one if I could.” Nevertheless, after
citing the language of Guideline § 4A1.3(b)(1) regarding
No. 05-2996 11
downward departures and United States v. Bradford, 78
F.3d 1216 (7th Cir. 1996), a pre-Booker case on the same
subject, he concluded that, “I can’t depart on the basis of an
overstated criminal history,” explaining that “[t]his is a case
where I don’t think I have the authority.” Mancari argues
that these statements demonstrate that the district court
misunderstood its discretion post-Booker and show that if
it had grasped the full extent of its power, it would have
sentenced him below the advisory Guidelines range. The
government disagrees, pointing to other statements by the
district court, such as its acknowledgment that the Guide-
lines are only one of the factors it is supposed to consider in
determining a sentence post-Booker, that may indicate that
it was aware of its discretion, but simply declined to
exercise it.
Having reviewed the sentencing transcript in its entirety,
it is unclear to us whether the district court properly took
its post-Booker discretion into account. Prior to Booker, the
ability of a district court to grant a downward departure
was limited by the Sentencing Guidelines. A court was
permitted to depart from the applicable range only if it
found “that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence
different from that described.” United States v. Sherman, 53
F.3d 782, 788-89 (7th Cir. 1995) (quoting 18 U.S.C.
§ 3553(b)). In contrast, after Booker, “the concept of a
discretionary departure . . . has been rendered obsolete.”
United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir.
2006). “Instead, what is at stake is the reasonableness of
the sentence, not the correctness of the departures as
measured against pre-Booker decisions that cabined the
discretion of sentencing courts to depart from guidelines
that were then mandatory.” Id. (quotation marks omitted).
To reiterate our by-now familiar formulation, since Booker
“the district court is required to calculate properly the
12 No. 05-2996
advisory sentencing range and to impose a sentence which
takes into consideration the sentencing factors specified in
18 U.S.C. § 3553.” United States v. Baker, 445 F.3d 987, 991
(7th Cir. 2006). If the sentence falls within the advisory
sentencing range recommended by the Guidelines, it “is
entitled to a rebuttable presumption of reasonableness.”
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). If, on the other hand, the district court wishes to
depart from the advisory Guidelines, it may do so, but it
must offer adequate justification for that departure. “The
farther the judge’s sentence departs from the guidelines
sentence . . . the more compelling the justification based on
factors in section 3553(a) that the judge must offer in order
to enable the court of appeals to assess the reasonableness
of the sentence imposed.” United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005).
Because Mancari’s sentencing hearing took place rela-
tively soon after Booker, the district court did not have the
benefit of our decision in Vaughn and similar cases. As a
result, it appears to have been under the misimpression
that its discretion was still cabined by the pre-Booker
departure jurisprudence. We think it likely enough from the
court’s comments that it might be inclined to issue a
different sentence in light of Booker that a full remand
is the proper course of action; there is no need for the
court to repeat what it has already said in response to a
limited remand. See United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005) (“[W]henever a district judge
is required to make a discretionary ruling that is subject to
appellate review, we have to satisfy ourselves, before
we can conclude that the judge did not abuse his discretion,
that he exercised his discretion, that is, that he considered
the factors relevant to that exercise.”); United States v.
Spano, 447 F.3d 517, 519 (7th Cir. 2006) (“A refusal or
failure to exercise the discretion afforded by Booker (or our
inability to determine whether discretion was actually
No. 05-2996 13
exercised) would require a [ ] remand.”). We therefore
vacate Mancari’s sentence and remand in order to give the
district court an opportunity to exercise its discretion fully
to determine a reasonable sentence in this case.
IV
Accordingly, we AFFIRM Mancari’s conviction, but we
VACATE his sentence and REMAND to the district court for
further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-1-06