UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO.xx-3040

BRIEF FOR APPELLANT xxxxxxxx xxxxxxxxxxx

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxx xxxxxxxxxxx, Defendant-Appellant.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), (App. 71),¹ this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUE PRESENTED FOR REVIEW

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this brief.

On July 12, 1996, U.S. Magistrate Judge Kay issued an arrest warrant for Appellant xxxxxxxx for impersonating a federal officer and thereby obtaining a thing of value in violation of 18 U.S.C. § 912.² (App. 10). Mr. xxxxxx was arrested the same day. A search of his person at the time of the arrest turned up a .32 automatic handgun and several rounds of ammunition, in addition to other items, in a backpack carried by Mr. xxxxxx. (9/6/96 Tr. 35-36).

A grand jury returned a six-count indictment against Mr. xxxxxx for violations of federal and District of Columbia laws. (App. 17-19). Counts One and Two charge that Mr. xxxxxx pretended to be an officer of the United States and thereby obtained a thing of value in violation of 18 U.S.C. § 912. Counts Three, Five and Six related to possession of the firearm and ammunition in violation of 22 D.C. Code Ann. § 3204(a) and 6 D.C. Code Ann. §§ 2311(a), 2361(c). Count Four charged Mr. xxxxxx with Receiving Stolen Property in violation of 22 D.C. Code Ann. § 3832(a), (c)(1).³

Mr. xxxxxx filed a motion to suppress the evidence seized at the time of his arrest because it was the fruit of an invalid arrest warrant. (App. 20-52). Mr. xxxxxx argued that the affidavit supporting the warrant did not establish probable cause to believe a crime had been committed and that it contained misstatements by the affiant. The district court denied Mr. xxxxxx's motion by Order dated October 16, 1996. (App 62-63).

After a trial, the jury acquitted Mr. xxxxxx of Counts One and Two (impersonating an officer) and Count Four (receiving stolen property). It convicted him of the D.C. gun counts. The district court sentenced Mr. xxxxxx under D.C. law to 18 to 54 months' imprisonment. (App. 69).

B. Statement of Facts

On Memorial Day 1996 Mr. xxxxxx was visiting the Vietnam War Memorial, wearing a cap with the Navy SEAL insignia. He happened into a conversation about MIA's in Vietnam with Mr. R., a security supervisor at the Australian Embassy, and Colonel Hopper, who had set up a booth on the Mall distributing MIA information. During that conversation, Mr. xxxxxx represented that he was a former Navy SEAL and that he currently worked for the Diplomatic Security Service ("DSS"). (10/16/96 Tr. 11, 19-22, 30-31). During the conversation, Mr. R. invited Mr. xxxxxx to a happy hour that Friday, May 31, at the Australian Embassy. (10/16/95 Tr. 16, 18).

The Australian Embassy happy hours were held every other Friday for Embassy employees and their invited family and friends. (10/16/96 Tr. 12-14, 17, 26). Mr. xxxxxx attended the May 31 happy hour with a date. (10/16/96 Tr. 29-30). Others present included Brenda Nelson, an employee at Rocklands Barbecue Restaurant that Mr. R. had met while dining there. (10/16/96 Tr. 5-10). Another guest of Mr. R.'s was Christina Shutes, who described her occupation as a photo assistant. To be admitted to the happy hour, guests would be escorted by an Embassy employee to the entrance of the Social Club room, where they would sign a visitor's log and enter. (10/16/96 Tr. 18). At this happy hour, Mr. xxxxxx signed in and put the letters "DSS" after his name. (App. 51).

Mr. xxxxxx showed up uninvited at the Embassy on a subsequent Friday evening, June 14, to attend another happy hour. He was met at the door by Mr. R. who informed him that he could not enter because the Embassy was hosting a restricted military attache function. (10/16/96 Tr. 23).

On June 21 Mr. xxxxxx again attended the Friday happy hour at the invitation of Mr. R.. (10/16/96 Tr. 15, 23-24). This time he signed in and wrote "Secret Service" in the "Company and Address" column. (App. 52). During a conversation with Mr. xxxxxx at that event, Mr. R. suspected that Mr. xxxxxx may not have been a Navy SEAL and may have misrepresented other aspects of his career because his technical knowledge seemed deficient. Mr. R. called contacts at the Navy and State Department and learned that Mr. xxxxxx had not been a Navy SEAL and was not then employed by the DSS. (10/16/96 Tr. 24-25).

The Embassy made a formal complaint to the State Department, which commenced an investigation of the case. (10/16/96 Tr. 25). Special Agent Michael J. Hudspeth of the Diplomatic Security Service was assigned to the case. After his investigation, he swore out an affidavit to obtain an arrest warrant. (App. 28-33). In his affidavit, he repeatedly characterized the Embassy happy hour as a "representational social function," without further explanation of the purely social nature of the event. He stated:

On that date, xxxxxx affixed his name to an official Visitor Register, located in the reception area of the Chancellery, and signed in to attend a representational social event as a guest of Mr. R. . . . .

* * *

Based on these representations, Mr. R., who in the course of his duties has frequent professional contact with Special Agents of DSS, invited xxxxxx to attend a representational social function at the Chancellery the following Friday, on May 31, 1996.

* * *

Based on the foregoing, your Affiant submits that there is probable cause to believe that on May 31, 1996, CLIFFORD DANIEL xxxxxx . . . did falsely assume or pretend to be an officer or employee acting under the authority of the United States . . . [and] demand or obtain a thing of value, to wit: entry into a Foreign Diplomatic Mission accreditated [sic] to the United States for the purpose of attending a representational social function, in violation of Title 18, United States Code, Section 912.

(App. 28-29, 29, 32-33). Based on these representations, Magistrate Kay issued the arrest warrant.

SUMMARY OF ARGUMENT

Mr. xxxxxx's motion to suppress should be granted because the arrest warrant through which evidence on his person was seized was invalid on two grounds. First, the district court erred in ruling that the affidavit supporting the arrest warrant alleged facts sufficient to find probable cause. The affidavit did not allege facts sufficient to meet all the elements for a violation of 18 U.S.C. § 912. In particular, the facts alleged in the affidavit did not show that Mr. xxxxxx obtained a "thing of value" as a result of impersonating a United States Officer. He merely received an invitation to an Embassy happy hour open to all social and family guests of employees. Although other circuits' case law interprets "thing of value" broadly, it would still not include an informal social invitation to a happy hour.

Second, the affidavit contains misstatements: the affiant repeatedly characterizes the Embassy happy hour as a "representational social function." The affiant knew, or should have known, the character of these Embassy events. By describing them as "representational," the affiant deliberately, or at least recklessly, misled the Magistrate to find probable cause of a violation of section 912 and issue the arrest warrant.

A. Standard of Review

In reviewing a district court's denial of a motion to suppress, this Court reviews legal conclusions de novo. Findings of fact are reviewed for clear error. United States v. Taylor, 997 F.2d 1551, 1553 (D.C. Cir. 1993).

Here, the district court's ruling that the conduct alleged in the affidavit met all the elements of the crime is a legal conclusion reviewed de novo. The court's finding that Agent Hudspeth's affidavit was not misleading is a finding of fact reviewed for clear error. See United States v. Vanness, 85 F.3d 661, 662-63 (D.C. Cir. 1996).

B. The District Court Erred in Ruling That the Affidavit Stated Reasonable Grounds for Believing That Mr. xxxxxx Had Violated § 912 Where the Affidavit Did Not Show that Mr. xxxxxx Obtained a "Thing of Value"

In accordance with the Fourth Amendment, an affidavit in support of an arrest warrant must state facts sufficient to warrant the belief by a reasonably prudent person that the individual has committed or is committing an offense. McCray v. Illinois, 386 U.S. 300, 304 (1967). An arrest warrant based on an insufficient affidavit is invalid. In reviewing the sufficiency of an affidavit to support probable cause, courts should defer to the decisions of magistrates, so long as "the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

Police officers, before executing an arrest warrant, must have objectively reasonable grounds for believing the warrant was properly issued. United States v. Leon, 468 U.S. 897, 922-23 (1984). Where officers submit an affidavit that is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable[,]" evidence seized as a result of the issuance of a warrant and the subsequent arrest will be suppressed. Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)).

Here, Agent Hudspeth submitted an affidavit that clearly lacked the requisite indicia of probable cause to believe that Mr. xxxxxx violated 18 U.S.C. § 912. The affidavit failed to allege facts indicating that Mr. xxxxxx had met all of the elements necessary to show a violation of the statute. Namely, it failed to allege facts reasonably showing that he obtained a "thing of value" as a result of falsely assuming the identity of an officer of the United States.

Other circuits interpreting section 912 have interpreted "thing of value" broadly to include not only items having commercial value but also intangibles that have value to the defendant such as information, a reprieve from liability, or a discount. See United States v. Rippee, 961 F.2d 677, 679 (7th Cir. 1992) (police forbearance from issuing a ticket is "thing of value"); United States v. Martindale, 790 F.2d 1129, 1135 (4th Cir. 1986) (25% discount on rental car for State Department employees is "thing of value"); United States v. Sheker, 618 F.2d 607 (9th Cir. 1980) (information on whereabouts of trial witness can be a "thing of value"). For example, in Sheker, the defendant, posing as an IRS agent, obtained the address of a witness against him in a prior criminal trial. Mr. Sheker wanted to "pay back" the witness for Sheker's criminal conviction. The court held that such information, which the witness would want to keep unknown, would have value to Mr. Sheker and upheld the conviction under section 912. Nevertheless, the court limited the scope of section 912 by stating that it does not "extend[] to anything that has value to the defendant. Such a broad reading of 'value' negates any limitation the word could imply." Sheker, 618 F.2d at 609.

Agent Hudspeth asserted in his affidavit that Mr. xxxxxx obtained a thing of value in that he obtained entry to the Australian Embassy for a representational social function. (App. 32-33). Yet He failed to explain further how gaining entry to an embassy's pub to attend an informal happy hour could be a thing of value, either as a general matter or to the defendant himself.⁴ Mr. xxxxxx, being unemployed, sought no business contacts or publicity from this party. He did not receive a private tour of the Embassy or learn secrets about the interior layout or physical facilities of the building. He did not gain access to classified discussions with government and diplomatic officials. The most he could have obtained was a good time and perhaps an opportunity to impress his date. Even the case law from other circuits that broadly interprets "thing of value" does not approach criminalizing the actions in this case. To find value here would, in the Ninth Circuit's words, "negate any limitation the word could imply." Sheker, 618 F.2d at 609.

The plain meaning of the language of the statute alone should have informed the agent that Mr. xxxxxx did not obtain a "thing of value" and, therefore, that there was no probable cause to arrest Mr. xxxxxx under section 912. The agent's assertions of probable cause in his affidavit, and the subsequent execution of the arrest warrant, were unreasonable. The evidence seized as a result should be suppressed.

C. The District Court Also Erred in Finding That The Affidavit Was Not Misleading Where the Affiant Represented to the Magistrate that the Happy Hour was a "Representational Social Event" Without Explaining that This Event was Open to Any Invited Family Member or Friend of an Embassy Employee

Misrepresentations in the affidavit further contributed to its invalidity. Leon also requires suppression of evidence where the affidavit supporting the warrant contains deliberately or recklessly false information. 468 U.S. at 923; see Franks v. Delaware, 438 U.S. 154 (1978). This Circuit further requires that the false statement be "'material to the issue of probable cause[.]'" United States v. Warren, 42 F.3d 647, 653 (D.C. Cir. 1994) (quoting United States v. Richardson, 861 F.2d 291, 293 (D.C. Cir. 1988)).

Agent Hudspeth in his affidavit repeatedly characterized the Embassy happy hour as a "representational social function." He used no other description, except for the shorthand term "social event" or "social function," referring to the earlier-mentioned "representational social function." (App. 12, 13). At the time he swore out the affidavit, the agent knew, and should have known based on his interviews (10/21/96 Tr. 29), that the invitations extended to Mr. xxxxxx were purely social. (10/21/96 Tr. 39-42). Although attendance at the happy hours required an invitation, invitations were extended to any number of acquaintances of employees of the Australian Embassy, regardless of their profession. Mr. R., for example, also invited an employee of Rocklands Barbecue that he had met while dining there and a "photo assistant." The Embassy conducted no background checks to screen guests. The characterization of these events as "representational social functions" was clearly misleading.

The agent also knew that other functions at the Australian Embassy were more properly termed "representational social functions." When Mr. xxxxxx showed up at the Embassy on June 14 to attend another happy hour, he was turned away. Mr. R. explained to him that the Embassy was holding a military attache function, limited to guests that had certain military credentials. Mr. R. then invited Mr. xxxxxx to return next Friday to another happy hour -- a purely social event with no representational requirements.

The agent's knowledge of the events in this case and his repeated use of the words "representational social function" in the affidavit suggest a deliberate choice of those words. At the very least, this Court can infer that the agent must have known the false impression he was creating for the Magistrate by such references, yet he failed to disclose the true nature of the happy hour events through further explanation. Such conduct constitutes recklessness. See United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996) ("recklessness may be inferred when omitted information was 'clearly critical' to assessing the legality of a [warrant]"); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980) (same).⁵

The agent's statements were clearly material to a finding of probable cause. As stated above, Mr. xxxxxx's actions do not meet all the elements of section 912, namely, that the impersonator receive a "thing of value." In finding probable cause in this case, the magistrate must have had the impression that access to the Embassy's happy hour was more than just an invitation to a private pub for happy hour. The repeated characterization of these happy hours as "representational social functions" implies that they were limited to government representatives.

CONCLUSION

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Clifford xxxxxx

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 26, 1997, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

___________________________________

EVELINA J. NORWINSKI