United States v. Jonathan David Brown

lifе-threaten- intimidating, perceived and as David Brown. that trial established ing. Evidence at BATCHELDER, and Before MARTIN evading the author- Brown assisted Patton ENSLEN, Judge.** District Judges; Circuit ities. to his shooting, Patton returned After the MARTIN, J., opinion of delivered later that he was arrested apartment, where ENSLEN, D.J., joined. court, in which ' all-night up party an morning police broke 1169-1178), BATCHELDER, (pp. J. Patton rifle. and confiscated an “AKS-47” dissenting opinion. separate a delivered day cus- into Brown’s released the next was MARTIN, Jr., Judge. F. Circuit BOYCE to live at Brown’s farm tody and went told police Brown jury Pleasantville. appeals his David Brown Jonathan at Brown’s Nashville Patton would live accesso- an for one count conviction evicted about to be apartment as he was conspiracy to ry violate after the fact a later, Brown went week from his own. One §§ 3 and rights, in violation of 18 U.S.C. civil Patton that the FBI was farm and told making false decla- and for two counts spray purchased Brown looking for him. grand jury, in violation of 18 rations before paint his car —the paint helped Patton argues appeal, Brown 1623. On U.S.C. shooting white to during one used accessory after the he could hot be an —from a li- Patton with provided black. He then underlying offense there was no fact because trucks and cash plate from of his essentially cense one For against the United States. later the state. Brown help Patton flee reason, argues that his convic- he the same Ve- to Patton Las wired additional funds Finally, stand. he perjury tions for cannot months after leav- gas. Approximately five validity challenges the of a search was Brown’s farm and ing, Patton returned to home, by claim- his but does so executed at 1991, the September stayed for a month. denial of ing in the court’s his error district Patton, pled guilty to feder- FBI located who property. We dis- to return motion seized synagogue ito the shoofr- charges relating al contentions and affirm agree with Brown’s ing. conviction. his ongoing investigation of part drive-by As of their shooting

This case stems from Met- shooting, of the Nashville Nashville, members Tennessee. On synagogue with Patton, Department spoken had 9, 1990, juvenile ro Police Damion June 12, 1990, had after Patton Brown. On June by thе Nashville Po- “skinhead” as described custody, Brown told released lice, Armstrong, been into William Leonard living with Wynn Patton Sergeant Dragon was of the Tennessee White Grand Klan, to California him until Patton returned met Brown Knights of the Ku Klux at. informa- Based on this groups live with his father. meeting supremacist of white tion, in Nashville magistrate a federal issued people. Ear- hatred of advocated the Jewish apartment. for Brown’s a search warrant morning of June around ly on the 1:00 FBI Special Agent prepared a.m., Armstrong Dillender drove Patton and ** Enslen, designation. gan, sitting by A. The Honorable Richard Judge the Western District Michi- District States, warrant. the affidavit for the search Dillen- United to hold and use real per- assigned investigate a number of der was sonal in the same manner as that Nashville, criminal civil incidents enjoyed by citizens, all firing including Synagogue shooting. End gunshots West into Synagogue.” the West End (1988 The warrant authorized a search of Brown’s 1993), § 241 Supp. U.S.C. & V apartment for evidence instrumentalities perjury allegations, III, Counts II and crimes; of these it was executed on June 15. stemmed from Brown’s testimony before the grand jury on December 1991. On Au- subpoenaed On June was Brown gust after eight-day jury trial, testify jury grand investigat- before a federal Brown was convicted on all counts. He was synagogue shooting. He testified sentenced on 12 to imprisonment November days that Patton lived him for a with few years months, for two years’ and three three arrest, floor, sleeping after his on the before supervised special conditions, release with going to California. He also testified that $10,000 and was assessed a fine. Brown filed spoken the last time he had with Patton was timely a appeal notice of day. the same day apart- before the FBI came to his looking year later, ment for Patton. One argues Brown that his convictions should again appeared grand jury Brown before a be reversed Syna- because the West End regarding religious proper- the vandalism of gogue by corporation owned by and not testified, time, ty. truthfully citizens; Brown this He reasons that syna- because the hearing, after the first go Patton did not to gogue property citizen, by was not held California; instead, later, days a few Pattоn there could be no violation of 42 U.S.C. went to live and work at farm. § 1982 proper- enumerates the Also, Brown testified that when he saw. Pat- ty rights Thus, of citizens. he asserts that again, spray painted ton Patton had his car. Armstrong’s Patton’s and actions were not a crime under federal law to which he could be appeared- grand Brown jury before the as-an accessory convicted after the fact. As 10, third time on December 1991. The Unit- III, to Counts II argues Brown that his ed States maintains that Brown was invited perjury convictions cannot stand for the letter, by to attend which advised him that he reason, asserting same the United possible was a grand jury’s defendant in the fraudulently States grand overreached the investigation shooting of a into the West End jury’s purpose generate and sustain an Synagogue. rights He was advised of his improper inquiry. letter, again beginning at the hearing. He was also told that if he lied to I. grand jury, charged he could be with Nevertheless, perjury. specifically when conspiracy To establish a to interfere painted asked whether he Patton’s car or rights, with civil the United States must provided plate, Patton with a license Brown prove knowingly joined that the defendant

responded that he had not. conspiracy injure, oppress, threaten or 22, 1992, April charged On Brown was in a deprive intimidate a victim with the intent to perjury three-count right indictment with and as him of a civil and that an overt act was accessory an alleged after the fact. Count I committed in conspiracy. furtherance of the .(1988) (1988 by § he violated 1993); § 18 U.S.C. 241 Supp. U.S.C. & V attempting States, apprehension, 211, “to tri- Anderson v. United prevent punishment” 2253, al and Armstrong and Pat- S.Ct. 41 L.Ed.2d 20 The Unit ton, they when he knew had an prove committed ed States need-not that-the defendant against offense actually the United States. That right of- knew it was a constitutional fense conspiracy was identified as a conspired against viola- or violated. United injure, O’Dell, (6th tion of 18 oppress, 224, U.S.C. “to States v. 462 F.2d n. Cir.1972). threaten and intimidate Jewish inhabitants Because victims in and citizens of the United .in the free Syna States the Jewish members of the West End enjoyment right, exercise and gogue, secured synagogue, do not own the the central to them the Constitution question and laws of the in this case is their whether acquire property and right to racial discrimina- property free from “use” pleasure.” Id. go and come at right. right “to protected civil tion is a Act of Con- Rights passing the Civil to which Brown is .underlying offense approving a com- it was gress assumed “that Pat conspiracy between accessory awas forbidding all racial dis- prehensive statute Armstrong intimidate citizens ton and affecting civil the basic crimination right, pursuant in their faith the Jewish in the Act.” enumerated use real to hold and Section at 2201. as used manner worship in the same at “racial” dis Although specifically aimed argues that the “use” of Brown all citizens. crimination, when of race “definitions protected Section is not they He fur the same passed “hold” were not only right to was Cobb, Congregation v. today.” must own that a citizen Shaare argues ther Tefila prop right to hold to be denied order (1987) (citing does Francis Col reading the statute Saint erty. This 604, 107 Al-Khazraji, construction courts comport lege with the broad (1987)). traditionally given 1982. We Section Section 1982 have Greer, agree protect instead with United from discrimination ‘intended to “was (5th Cir.1991), en persons who are sub classes of identifiable aff'd Cir.1992), banc, cert. de solely F.2d 433 jected discrimination be to intentional — 1390, nied, —, 122 113 S.Ct. U.S. ancestry characteris or ethnic cause of their ” Fifth Circuit Francis, the L.Ed.2d 764 where 481 U.S. (quoting tics.’ Id. Saint regarding argument the rejected 2028). an identical 613, question The at at 107 S.Ct. syna a and of Jewish defacement vandalism Jews court “not whether before the was center Texas. In gogue community and by today’s separate race to considered be this we con reaching our decision in standards, whether, the time but at 1982 must be construed clude that Section 1982 group of adopted, constituted a Jews was property. broadly encompass the “use” of to protect.” to Congress intended people question the The court Id. answered right of citi protects the Section ... “that Jews and found affirmative personal It zens to “hold” real and be peoples considered to among the then states: protection within the distinct races and hence shah havе All citizens 617-18, at statute.” at Id. every and Territo- right, in State the same 2022; Jesus Jewish see also Jews for ry, enjoyed white citizens thereof as is N.Y., 286, 968 F.2d Rel. Comm. Council of sell, hold, inherit, lease, purchase, and to (2d Cir.1992) (discussing Shaare Tefila convey personal property. real and Francis); Bachman v. St. Moni and Saint Congress to enable 1982was enacted Section (7th 1259, 1261 Congregation, 902 F.2d ca’s Amendment, spe- the Thirteenth to enforce Cir.1990) “historically (noting the term discrimination, cifically “prohibit racial to all broadly, more to was used much de [‘race’] rental private public, in the sale and of and ancestry having or even groups note common Co., Mayer H. property.” Jones v. Alfred culture,” and this “traditional a common 2202, 2186, S.Ct. sense,” of a distinct “Jews are members loose (1968). Jones, In the court L.Ed.2d race.”); Bisciglia v. Kenosha Unified cf. history legislative of Section looked to the 1, 223, 229-30 Dist. No. School surrounding the Civil 1982—the debates Cir.1995) may (holding “Italians” be con explained that Sec- Rights Act of 1866—and purposes of “race” for an sidered identifiable to do more than 1982 was tion intended under Sectiоn of racial discrimination a claim destroy the discrimination embodied 1981). affirmatively “It secure Black Codes: would history men, legislative therefore ‘great for all ... fundamental ” per that a supports proposition Jewish (quot- at 2199 rights.’ Id. at 475). Sess., protected property “use” of under Cong., son’s ing Cong.Globe, 39th 1st support can be found rights” 1982. Further among civil Section Included “basic these Greene, City Memphis cuit found that “[w]hile the condition of being guest S.Ct. normally not considered a ‘proper- There, similarly gave court a broad con- ty’ right ‘hold,’ one can there is authority Section-1982, struction to although ultimately justification and considering it such un- for it did not find that it had been violated. der [Section] 1982.” Id. at (emphasis Greene, City of Memphis added). blocked the Further, court concluded it neighborhood street supposed- to black was reasonable to characterize the freedom ly neutral reasons including traffic control. go guests and come as “sufficiently at Although S.Ct. 1588-89. pertaining to a condition property to be a right found that acquire court right capable held under [Sеction] use was property significantly impaired, not 1982.” Id. scope it on elaborated of Section 1982. Upon being invited a member of the “To effectuate the remedial purposes of the club, a black child becomes an invitee of statute, broadly the Court has construed this that member rights with certain pursuant language protect merely the enforce- thereto. Whether these are denom- ability acquired by interests licenses, inated usufructs, easements or right black citizens acquire but also their guest has an guest interest in his status on equal use basis with may protect which the law certain from white citizens.” Id. at 101 S.Ct. at 1597 invasions. added). (emphasis (citation omitted) added). (emphasis If Greene, Relying on at 101 guest status at private swim club is a 1596-97, Jones, S.Ct. at 392 U.S. at 421- protected under interest Section then 2193-94, Fifth Circuit certainly “go plea- and come at phrase Greer ‍‌​‌​‌​​​‌‌‌‌​‌‌​​​​​​‌‌​‌‌​‌​​‌​​​​‌​​​‌​​‌‌​​‌​‍held that “the ‘to hold’ place sure” to worship one’s is as well. under the statute can also mean ‘to use’ “Our work certainly would be much way, In property. government this the is every easier if case could be rеsolved able to establish that members and non consulting dictionary, a but when Congress temple community members the and cen legislated general terms, has judges may ter, guests, such as could claim that the acts judicial not invoke modesty to avoid difficult defendants violated their to use this —Hall, questions.” —, Holder v. Greer, Thus, property.” 939 F.2d at 1091. —, 2581, 2629, the court concluded proper that the “use” of (1994) (Stevens, J., concurring). agree We ty protected is a right. civil adopt We its with Greer and Olzman that non-owners Here,

reasoning. Jewish citizens were un property who nevertheless an have interest questionably denied their right prop to use using holding or property that a have erty free from racial discrimination. Jewish viable protected interest under Sec citizens who were synagogue members tion 1982. they testified that were intimidated their use of synagogue. II. is not finding alone in

Greer that ownership other than challenges Brown next his conviction for protected by Section 1982. Members of the perjury. provides Section pertinent Synagogue West may End properly be con part that any “[w]hoéver under oath ... guests sidered to be they or invitees when proceeding ancillary any before or court synagogue. attend the jury The Second Circuit grand knowingly United States has guest that held is an any status interest makes false material declaration ... may protect. which Section 1982 $10,000 Olzman shall be fined not more than or im- Club, Inc., v. Lake Hills Swim 495 F.2d prisoned years, not more five than or both.” (2d Cir.1974), private 1623(a). 1337-38 a swim club 18 U.S.C. Brown had testified that, changed rules for guests, its allowing grand so gave before the twice jury before he black longer non-member children testimony would no perjury on counts permitted be pool. appeared The Second Cir- grand are based. He before the Chen, United States 19, 1990, 1991. and on June

jury on June Cir.1991). challenge Thus, find Brown’s we appearance, second after his months Three jury jurisdic- grand had unpersuasive. and testified brother and Brown’s Patton conduct, and the investigate Brown’s testimony. tion to earlier Brown’s contradicted “peijury trap.” set a did not States appeal purposes of his Brown concedes jury grand on before that his statements III. ar- false. Brown Dеcember argues that Finally, Brown however, perjury conviction that his gues, apartment violat 15,1990, of his search June no citizen held because nonetheless invalid although rights, Amendment his Fourth ed property. He Synagogue End the West in the district by claiming error this he states fact, but knew this claims the United States to return of his motion court’s denial jury. grand otherwise before maintained because He asserts seized over- Thus, argues, the United Brown Patton and his focused on warrant the search gener- “to jury’s purpose grand reached the an activities, executing conducted officers any inquiry” and improper ate and sustain seizing general impermissible search only to were material made false declarations partic property. He takes personal also asserts inquiry. Brown improper and fact that his bedroom offense at the ular trap” “perjury set that the United States searched, areas these are not closet were grand testify inviting before him expected to be “guest” might be where again December jury on as autho reads the Brown warrant found. рrop only for rizing search Patton analysis our of Section Given crimes erty, than for evidence rather our, and Arm that Patton’s conclusion contention is committed. crime strong’s constituted federal actions application and The warrant merit. without argu Brown’s first under 18 U.S.C. scope included make clear that its affidavit jury grand A federal is without merit. ment by Patton and specific crimes evidence investigate conduct jurisdiction to has occupied by others, premises on the then crime and might have a federal been Moreover, may authorize a warrant Patton. jurisdiction of federal occurred within the regardless of whether the searching property v. McIn convening it. United States court in the implicated of that owner (5th Cir.1979), nis, cer t. F.2d Daily, 436 Zurcher misconduct. Stanford denied, 1976-77, 1970, 547, 556, 56 98 S.Ct. U.S. (1980). conduct Because the L.Ed.2d 237 (1978). 525 L.Ed.2d crime, the investigated was a federal being magistrate in a federal Fur On June proper. jury’s inquiry here was grand in con- two search warrants Nashville issued ther, United argument Brown’s investigation: one authoriz- with this nection prosecutorial misconduct engaged in States specify- ing apartment, is like search sting operation” through “perjury Pointe Park- as “902 address Cedar unavailing. wise authorizing a search of way,” other and the grand testimony is elicited before When ap- Special Dillehder Agent Patton. Damion “attempting to obtain useful jury that is application each plied both warrants and for investiga furtherance of its information in describing in the basis her affidavit refers to . Devitt, tion”, F.2d v 499 States United sought. items probable cause and the for denied, (7th Cir.1974), 421 135, cert. 140 to Dillen- issued also refers Each warrant 975, 1974, 44 L.Ed.2d 466 U.S. S.Ct. establishing probable cause. der’s affidavit (1975), “conducting legitimate investi Wynn Sergeant Agent Dillender and Special had in fact taken gation into crimes which during the execution present were both jurisdiction”, place within its these warrants. Cir.1975), (1st 178, Chevoor, 526 F.2d argues that 935, Although the dissent denied, 96 S.Ct. 425 U.S. rt. ce meet the are insufficient 1665, perjury these warrants 48 L.Ed.2d particularity, requirement is, definition, inapplicable. constitutional trap doctrine denied, ship), 1005, The search war cert. is not the case. first such 104 S.Ct. 996, premises” (1984). provided for a search “on the 79 L.Ed.2d 229 rant When consid apartment, specified his ad light of Brown’s ered in relationship of his to Patton and Armstrong, dress. The second warrant authorized a personal Brown’s seized person. Damion implicated search of and for Patton’s him in the being crimes investi 12, 1990, only days prior Moreover, gated. On June three even evidence “not de issuance, Sergeant the warrants’ Brown told in may scribed a search warrant be if seized Wynn living him Patton was with after ‘reasonably it is related to the .that offense which ” being custody. released from The knowl formed the basis for the search warrant.’ edge executing in of the officers this case is a Fortenberry, 628, United States v. 860 F.2d (5th Cir.1988) may any in factor which cure insufficiencies (quoting United States v. description prem Munroe, (5th the search warrant’s of the Cir.), 421 F.2d cert. Williamson, denied, ises. United States v. F.3d 400 U.S. 27 L.Ed.2d (10th Cir.1993). Furthermore, (1970)); see also United States v. Kor man, (6th executing Cir.) “when one officers is the 614 F.2d (stating affiant who describes that evidence or instrumentalities of crime judge, judge probable and the finds to may cause though be seized even specifically warrant), denied, search the as described the affi- listed in the search cert. ant, and the search is confined to the areas described, search, (1980).

which the affiant then the compliance with the fourth Therefore, reasons, foregoing Gahagan, amendment.” United States v. Brown’s conviction is AFFIRMED on all denied, Cir.), cert. three counts. 3242, 106 918, 109 ' BATCHELDER, Judge, Circuit dissenting. challenges

Brown also the seizure of personal property indicating membership activity The to which this defendant was suprem in the Ku Klux Klan and other white accessory convicted of is so offen- groups. argues seizing acist He such sive that it agreeable would be much more requires executing items the search with majority’s opinion. concur It is dis- “scrupulous exactitude” because of First heartening that as we mark the fiftieth anni- Still, Amendment concerns. Brown has not versary liberating ‍‌​‌​‌​​​‌‌‌‌​‌‌​​​​​​‌‌​‌‌​‌​​‌​​​​‌​​​‌​​‌‌​​‌​‍of the Nazi death shown that the search and im seizure was camps, combatting we are still anti-semitism proper. publications papers set here at home. But I must dissent I because forth in the search warrant lim affidavit are majority simply wrong, believe the both concerning ited to those the identification of analysis its the 42 U.S.C. 1982 issue and targets of skinhead and Klan activities. Fur in its treatment of the Fourth Amendment thermore, stating why those items are claim. charged, relevant to the crimes the affidavit specific is far more than other warrants I. ground. struck down on this v. See Stanford Texas, 506, 510, 13 379 U.S. Count I of in the indictment' this case (1965) (holding charges L.Ed.2d 431 accessory that warrant au Brown defendant as thorizing private assisting search of home for all after the fact for Damion Patton in books, records, relating evading capture and other materials in connection with a crime broad); party against the Communist was too the United The Government States. (8th Apker, v. synagogue shooting United States 705 F.2d 293 contends that the awas Cir.1983) (striking conspiracy down warrants that between Patton and Leonard sought only 241,1 Angels Armstrong, § indicia of Hell’s member- in violation of 18 U.S.C. persons conspire injure, any right privilege 1. If two or more ment of or secured to him threaten, oppress, any or inhabitant intimidate by the Constitution or laws of the United any enjoy- of State ... in the free exercise or 1170 and, citing to v. H. in the assertion Jones Jewish citizens2 exercise

to intimidate Alfred Co., Mayer property and use rights to hold of their citizens, (1968), City Memphis and enjoyed by all manner as the same of Greene, § The of 42 U.S.C. 1982.3 Gov- in violation authority prop- for the that “as a result of the shoot- L.Ed.2d states ernment osition, phrase prop- ‘to hold’ citizens to use the held that “the rights of Jewish erty under the statute can also mean ‘to use’ facility impaired.” were way, government property. In this is points out that the Defendant Brown West non- able to establish that and members by Synagogue corporation owned a End temple ... could claim that members Therefore, citizens. and not Jewish right to the acts of defendants violated their shooting synagogue that Brown contends Greer, property.” F.2d at 1091 use this deny any right not Jewish “citizens” their did omitted). (citations private property, neither to “hold” because public corporations are citizens within support nor not Jones and Greene do meaning Amendment. of the Fourteenth position. the Fifth Circuit’s Jones held Disposal Authority Macomb See South private govern- § 1982 extends to as well as Township Washington, 790 F.2d 503- of or mental acts discrimination the sale of Cir.1986). The on this issue debate authority rental of and that the of whether, by explicitly protecting a centers on Congress to enforce the Thirteenth Amend- § right property, 1982 also citizen’s to hold power ment includes the to eliminate all ra- implicitly protects right a to use citizen’s acquisition cial barriers real ownership property in which he has no or Certainly personal property. the Court dis- possessory lesser interest'. length legislative history cussed at 1982, referring specifically § to the remarks majority only on the circuit relies of Senator Trumbull the bill4 would have reached the conclusion court decision to “ ‘great secure for all citizens the fundamen- protects right merely § citizen’s ” “ rights,’ right tal Greer, consisted of ‘the property, to use United States v. (5th Cir.1991). acquire property, right go and come at F.2d in- Greer pleasure, right to enforce in the .the remarkably pres- similar to the volved facts courts, contracts, to make and to inherit and group ent case: Members of a skinheаd ” Jones, dispose property.’ charged, part, violating with 18 U.S.C. Globe, Cong. vandalizing (quoting § 88 S.Ct. at 2199 defacing a Jewish (1866) (statement Cong., 39th 1st temple non-profit corpo- that was owned Sess. Trumbull)). However, nothing argued ration. The that the Sen. in that defendants evi- prove they prohibi- any dence did not violated the discussion or other discussion Jones § depriving permits proposition tion of 42 1982 on citizens its citation for the U.S.C. of their to hold “‘to hold’ under can also [§ 1982] because Greer, Greer, corporation property.”5 was not citizen. 939 mean ‘to use’ 939 F.2d at rejected F.2d at 1091. The Fifth Circuit States, inherit, having enjoyed by so or because exercised white citizens thereof to same; lease, sell, hold, purchase, convey real and personal $10,000 (West 1994). They § than shall be fined more or 42 U.S.C.A. .1982 imprisoned years, not more than ten both;.... speaking regard 4. Senator Trumbull was (West Supp.1994). 18 U.S.C.A. 241 This stat- Rights Senate of the Civil Act of version subsequently

ute has been amended in a manner which included what is now 1982. opinion. that does not affect this fact, began analysis 5. In the Jones Court its with Supreme § 2. The Court extended 1982 to Jеwish "important” precise scope an clarification of the Cobb, people Congregation in Shaare v. Tefila Jones, 413, § at of 1982. 392 U.S. 88 S.Ct. at 615, 617-18, 2019, 2021-22, 107 S.Ct. Court, According § “[i]n 2189. L.Ed.2d 594 sharp Rights the Civil Act of contrast” to comprehensive 3. All citizens of the United States have was not a anti-discrimination shall right, every Territory, specifi- the same State and as law. Id. does not deal “[Section 1982] Greene, Memphis “enjoy” property 451 U.S. “use and City right In or the to of “go pleasure.” and come at But this is the city’s Supreme that the clos- Court held full right extent which the Government of part leading from a white ing of of a street claims this accessory defendant was an to city predominantly of the to a black section abridging. Although both Jones Greene There, § section did not violate 1982. § refer to the “broad” construction of said, Court they do so in the context of a citizen’s discer- purposes To effectuate the remedial property right. nible Jones stands for the statute, broadly the Court has construed proposition private govern- as well as protect merely [§ 1982] to the enforce- subject mental conduct is to the mandates of ability property acquired by of interests 1982; § right Greene states that the to ac- right black citizens but also their to ac- quire property protected by and use property equal quire and use on an basis § 1982. supports neither white citizens. with proposition set forth in phrase Greer that the (emphasis Id. at 101 S.Ct. at 1597 add- “to hold” can also mean “to use.” ed). discussing After the line of cases that Furthermore, the case at hand is distin- demonstrated this broad construction of guishable from holding the eases that when § language, 1982’s the Court held: organization membership links benefits to Therefore, applied as to this residency, part those benefits become inquiry § threshold under 1982 must focus rights acquired through residency bundle of relationship on the between the street clos- § guarantees and that all citizens the ing property of interests the re- right purchase to the same bundle. Tillman spondents_ sup- statute [T]he would Ass’n, Inc., v. Wheaton-Haven Recreation challenge port municipal action bene- 1090, 1093-94, property fiting white owners that would be (1973); L.Ed.2d 403 seе Sullivan v. Little similarly proper- refused to situated black Park, Inc., 229, 236-37, Hunting ty owners. For official action of that kind 400, 404-05, (1969); S.Ct. prevent exercising would blacks from Club, Ltd., Wright Salisbury whites_ rights same Alter- (4th Cir.1980). Tillman, example, for natively, might ... the statute be violated by-laws community of an all-white swim- depreciated official action that the value ming pool granted people living, club within owned citizens.... black geographic preference right join area the Finally, might the statute be violated if the without an endorsement from a current closing severely street restricted access Tillman, 431-32, member. 410 U.S. at homes, black because blacks would then be at 1091. The Tillman court S.Ct. held

hampered in the use of their ... closing] ... [the street does not involve organization membership [w]hen an links any impairment to the kind of residency geo- benefits to a narrow interests that we have identified as area, graphical that decision infuses those reach, § within the rights into the bundle of for benefits 123-24, (emphasis Id. at pays buying leasing ah individual when or added). within the area. The mandate of U.S.C. operates guarantee a non- languagе 1982 does not include 1982 then resident, leases, among protects purchases, it white who cally provision provision Attorney with discrimination in the of ser- Gener- intervention And, vices or facilities in connection with the sale or although by injunc- al. it can be enforced dwelling. prohibit rental of a tising It does not adver- tion, provision expressly authoriz- it contains no representations or other that indicate dis- payment a federal court to order the criminatory preferences. It does not refer ex- 413-14, damages.” Id. at 88 S.Ct. at 2189-90 plicitly financing arrange- to discrimination in Thus, (footnotes omitted). such an extension of- provision brokerage ‍‌​‌​‌​​​‌‌‌‌​‌‌​​​​​​‌‌​‌‌​‌​​‌​​​​‌​​​‌​​‌‌​​‌​‍ments or in services. require “congressional § 1982 would action.” empower It does not agency a federal administrative 88 S.Ct. at 2190. aggrieved parties. to assist It makes no

1172 leg- § of 1982’s rights as are from the discussion Jones property,

holds this the same enjoyed by a white resident. history justify expanding the reach islative rights beyond guarantee § its of the 1982 at 1094. These cases Id. at sell, hold, “inherit, lease, purchase, and that, per- a support Brown’s assertion before convey personal property.” Be- real and protection §to 1982 for “use” son is entitled Walker, implicit- property, must “hold” the on he cause Greer relied Greer acquisition.6 through some form of language ly hinged on this as wfell. But justifies nothing in this result.7 Jones by Two cases cited the Govern additional comment. In Walker v. Point ment deserve Finally, majority includes a discussion er, (N.D.Tex.1969), a district F.Supp. Cobb, Congregation v. of Shaare Tefila apart § protected that white court held 95 L.Ed.2d having ment tenants from eviction for black it, following and cases and concludes right § “to guests because the hold” legislative history sup- therefore “[t]he property included the freedom of blacks to proposition person’s a ports the Jewish go persons at the invitation of and come protected under lawfully apartment. in control of the Id. at ‘use’ of Section ‘go Recognizing that “freedom to and 61-62. only But 1982.” Shaare held Tefila come at is not to be asserted ás a pleasure’ Jews could state claim of racial discrimina- regardless right under section 1982 617-18, § tion under 1982. S.Ct. circumstances,” at that сourt nonethe id. Although in that at 2022. the facts ease were very prop less held that Jones stood for that very similar to those the case before us osition. Id. petitioners and the Shaare had Tefila Club, Inc., In v. Lake Hills Swim Olzman § brought an action under the district (2d Cir.1974), a case on which 495 F.2d 1333 court had not reached the merits of the case relies, majority here the Second Circuit complaint on the but had dismissed acknowledged that first “the condition be grounds among that Jews were ..not those guest normally is not considered a Congress protect. § intended for 1982 to then, ‘hold,’” ‘property' right can one protects § issue whether Jones, citing precisely held that. Id. at 1339. right to “use” was therefore neither Upon being by a invited member Supreme by before the nor Court addressed black, club, a an child becomes invitee it. rights pursuant that member with certain thereto. are denom- Whether these view, my represents In an overex- Greer licenses, usufructs, inated easements or Supreme precedent tension of Court guest guest has an interest in his I not be followed this Circuit. should may protect status which the law from § to a would hold 1982 does not extend certain invasions. person merely who uses but does not hold (citations omitted). Furthermore, I note that Con- gress specifically kind of criminalized the Both the Walker and Olzman courts seized phrase go pleasure” on the “to at behavior issue this case under 18 U.S.C. come Furthermore, person prop reaching making 6. even when a holds conduct that occurs after the or erty, damage might enforcing right its or destruction not create of a contract: "The to enforce DeSitter, however, not, §a 1982 claim. beyond Stackhouse contracts does extend con- (N.D.ILL.1985), F.Supp. person fire white employer impairs employ- duct an car, person's bombed black but the district ability through legal process ee's enforce court refused to find this act a violation of rights." or her established contract Patterson § 1982. Id. at 209-10. Union, 177-79, McLean Credit 2363, 2372-74, Logically, past § if 1981 does not extend Rights gave 7. The Civil Act of 1866 also all contract, making enforcing § or of a then citizens the "to make and enforce con- tracts,” beyond inheriting, should not extend the acts of which became 42 U.S.C. Before purchasing, leasing, selling, holding, convey- Rights overruled the Civil Act of Supreme ing property. Court construed 1981 as not entirely sympathy against I use him § 247.8 am it at trial. While Brown’s motion is entirely prosecute proper. desire to with the Government’s activity by kind of loathsome committed The Fourth Amendment states that “no Armstrong, Patton and to which this defen- issue, Warrants shall upon probable but accessory, I it dant was an believe cause, supported by affirmation, Oath or Congress properly provide the function of particularly describing place to be so, by amending to do either the means searched, persons and the or things to be among protections to include its Const, seized.” U.S. amend. IV. The Su by property proper- use of those who hold no preme Court has stated that “a warrant as it, ty right by amending or 18 U.S.C. sures property individual whose activity resulting § 247 such in dam- to cover searched or authority seized the lawful age in I lesser dollar amounts. would re- officer, executing search, his need to verse Brоwn’s conviction on Count I. power the limits of his to search.” United Chadwick, 9,1, States v. 433 U.S. II. (1977); 2482, 53 L.Ed.2d 538 see Na majority disposes of defendant Treasury Employees tional Union Von by Brown’s Fourth claim con- Amendment Raab, cluding if that even the search warrant did 1391-92, (1989). seized, expressly not list some of the items A warrant constitutes a limitation on the reasonably these items were related to the government to search and to and, therefore, underlying offense the offi- seize an individual’s The courts do majority, cers could seize them. The howev- not, however, require nit-picking adherence er, issue, namely, fails to address the real determining to technicalities in whether the that the two warrants used in the search of authorized, by search and seizure a warrant apartment Brown’s are invalid. sufficiently are defined to make the warrant matter, preliminary majority As a valid. ‘We are concerned with realities of unconventionally notes that Brown raises this ' justice. administration of criminal It is suffi- property, claim a motion to return instead signed by judicial cient if the warrant suppress of a motion to evidence. First of particular enough officer is if read rea- “with 41(e) all, explicitly provides Rule for the fil- executing sonable effort’ the officer property by of a motion for return of States, warrant.” Moore v. F.2d person aggrieved by an unlawful search and (D.C.Cir.1972). 1236, 1238 seizure, provides such a mo- when indictment, aspects tion after an particularity is filed it “shall be There are two First, suppress requirement. treated also as a motion to pro under the warrant must 41(e). Second, particular description places Rule 12.” Fed.R.Crim.P. vide pro appellant things Brown is a se and we be searched and the to be seized. States, obliged liberally. pleadings to construe his Marron v. United 195- States, 75-76, Myers v. United L.Ed. 231 (6th Cir.1981). Second, pre-trial provide “Motion to the warrant should a suffi Property” exactly ciently explanation suspected Return was filed for detailed purpose sup- activity same as would be a motion to criminal that occasions the search to press executing evidence—Brown believed the limit Govern- enable the officers to their relating ment had seized his violation search to evidence to that criminal activity subjected the Constitution and he wanted his and to inform the individu returned so that the Government could al what the officers are entitled beliefs, (West Supp.199-5)punishes religious person’s 8. 18 U.S.C.A. 247 free exercise of or defaces, person "intentionally damages, who Congress attempts to do so...." destroys any religious property, real because of punishment amended this statute to enhance the religious property, the tempts character of that or at- “use, attempted for violations that included use, $10,000, damage so” to do if the exceeds dangerous weap- or threatened use of obstructs, "intentionally or who force or on....” force, any person enjoyment threat of 907, Blakeney, In Sweeney, v. 813 F.2d 909 we followed the D.C. Circuit’s take. Rickert Maxwell, (8th Cir.1987). holding in v. statutory United States Inclusion of a ref (D.C.Cir.1990). According F.2d 1028 necessary particulari provide erence can the Maxwell, particu- an affidavit can fulfill the ty sufficiently if narrow to the statute itself is facially larity requirement for a void warrant at scope limit the of the search. Id. “ ‘ “(1) only accompanies if the affidavit the However, only limitation on the where the (2) warrant, in addition uses the warrant by provided and seizure is the refer search incorpo- words of reference’ which ‘suitable statutes, in ence the'warrant to several some ’ ” rate the affidavit reference.” Id. at very scope, of which in courts have broad (quoting Vaughn, v. United States held that the warrant contains no limitation (D.C.Cir.1987) (citations 1185, F.2d Spilotro, at all. v. 800 F.2d United States omitted)). Blakeney, this Court held that (9th Cir.1986); v. United States express incorporation requirements of the Cir.1980). Roche, (1st 614 F.2d Maxwell were met a warrant that ex- n Inadequacy in of the warrant one of these affidavit, pressly incorporated one and that may respects compensated specific- be for expressly incorporated affidavit a second affi- other, ity completeness in the but to be required particu- davit which contained the valid, the warrant must contain the informa- larity, and both affidavits were attached to necessary properly tion limit search the Blakeney, warrant. the F.2d at 1024. Spilotro, and seizure. 800 F.2d at 964 Although warrant in Maxwell con (“[T]he government could have narrowed description place tained no of either the to.be descriptions of the most the warrants ei- seized, specific things searched or the to be by describing greater ther detail the items expressly incorporate the warrant did a de commonly expects premises one on to find scription premises description of the and a question, used for the criminal activities in categories of items to be seized. Max or, least, very by describing at the crimi- well, 1031. Both of these de simply nal activities than themselves rather scriptions application were attached to the referring to statute to have been believed application for the search warrant and the violated.”). Therefore, facially a warrant was attached to the warrant itself. particularly invalid if it neither describes However, n. 1. 1031 & there was lan no places things to be searched and the to be guage expressly incorрorating the warrant nor.adequately suspect- seized describes the an affidavit that provided details of the wire criminal ed conduct to which the search is appellant suspected fraud scheme the was related. perpetrating. Id. at 1032. The court found affidavit, that without this the warrant was adopted express This Circuit has incor fatally overbroad. Id. at 1033. Because the poration rule for cases whifehthe warrant incorporated description of items to be seized not, face, does on its meet the Fourth only categories listed of items rather than particularity requirements. Amendment’s items, specific categories those limited Blakeney, F.2d 1001 only by description’s they statement (6th Cir.1991), denied, cert. were all evidence of wire fraud in violation of Al 18 U.S.C. and the court found that though a “fundamental distinction” exists be this reference to a broad federal statute con affidavit, underlying tween a warrant and its stituted “no limitation at all.” Id.9 Moore, may 461 F.2d at a court con strue a warrant with reference to its affidavit I am aware this court United States purposes particularity requirement Cir.), Gahagan, 865 F.2d 1490 cert. denied, magistrate explicit if the manifested an inten incorporate

tion to the affidavit. did find valid a search particu- activity although 9. The Maxwell court held that under the criminal was attached to— warrant, though explicitly incorporated lar circumstances of that even the' into—-the deficient, constitutionally agent supplied warrant was the evi- had who that affidavit over- Maxwell, suppressed dence would not be because the affi- saw the execution of the warrant. supplying particulars suspected davit F.2d at 1034. ... there is now concealed ion Patton inadequately de- ‍‌​‌​‌​​​‌‌‌‌​‌‌​​​​​​‌‌​‌‌​‌​​‌​​​​‌​​​‌​​‌‌​​‌​‍a warrant that pursuant namely properly, searched, person or Damion even certain premises to be scribed warrant, correctly first while Patton.” The adequately that more affidavit though the searched, was describing place to be attached premises was neither described things to be entirely blank as to the seized. warrant. to in the referred expressly nor clearly limited to cur- that case any incorporated Neither warrant affida- erroneously describe warrants vit, any reference to affidavit or contained affidavit is when the searched place to be language to except preprinted for some the and executing officers the available to readily “affidavit(s)” which established that effect in the actual search. participates the affiant magis- cause made to the probable were Gahagan in 1497, 1499. The warrant Id. at boilerplate preprinted same trate —the premise to be particular described specifically held to be Maxwell court the Road,” Douglas Lake “7609 as searched incorporate, to an affidavit into insufficient that “located also the affidavit noted whereas Maxwell, 920 F.2d at 1032. the warrant. frame single story wood is a on the requires “‘suitable words of Incorporation at 1492. The Id. log cabin-type structure.” explic- evidencing magistrate’s the reference’ out, separate cabin, was a it turned log Id. incorporate to the affidavit.” it intention Doug- of 7577 its own address residence with applications the for the warrants con- While Gahagan The Road. Id. at 1493. las Lake affidavit,” attached we phrase the “see tained the noting that search after upheld court the applications those not know whether were do in and participated the search affiant assuming Even to the warrants. attached the war- when upheld searches have courts attached, however, isit applications the were (often to due an incorrect address rant listed that no from the affidavits obvious record error) on the affiant was and typographical short, applications. the attached to were house. out the correct pointed and the scene only no affida- that not were there it is clear the ex- Gahagan stretches 1497-98. into or attached to the war- incorporated vits only rule, but it does so incorporation press rants, to affidavits available there were no incorrectly de- when, although the warrant scene of agents or the defendant the the searched, affidаvit the place to be the search, and, fact, fully scribes as is more the affi- place describes particularly below, only affidavit was under discussed participates the search. ant seal. before, like us are not facts in the case any indication

The warrant contained Neither ease analo- Gahagan. Nor is this activity those in in which the defen the criminal Although Blakeney or In gous to involved. suspected of dant was Maxwell. any affiant and Agent deed, Dillender was the Special even contained neither warrant participated agents any who statutes.10 The was one of the criminal reference warrants, however, search, in which the not a case con this was for the applications simply separate was erro- to five sections description in the warrant a reference tained warrant, Here, which the Code. One the second neous. Title 18 sections, prohibits authorized search contends these U.S.C. Government against any conspiracies Pointe to commit apartment at 902 Cedar offense section, States; Patton, include another did not the United Parkway for Damion Instead, conspiracies to violate civil prohibits any any description of location. difficult to any It individual. the Matter of the captioned “In was warrant These statu any statutes. imagine broader Patton,” stated that of Damion Search war applications for tory in the references magistrate made to the affidavits rants, were attached Dillender, applications if the even who “has Agent Deborah Special warrants, limitations on the provide no person of Dam- that on the to believe reason expressly the committee tee’s note. to Fed. amendments 10. is true that It challenge person wishes "[a] who requirement that the noted 41 removed R.Crim.P. access to the validity warrant has of a search grounds for the warrant's itself state the warrant was upon the warrant issued.” paper "unnecessary affidavits it was because issuance advisory commit- Fed.R.Crim.P. work.” Spilotro, type search whatsoever. See 800 F.2d at rant. The of evidence seized and its relationship underlying to the crime are sim- ply not relevant here. ofOne the reasons for a strict attachment requirement, requirement and for a warrant accompanied Had the affidavit at- been general, is that a citizen has a perhaps tached to the warrants why police invading know are his home incorporate this court could that affidavit into States, privacy. and his In Moore v. United using the warrants the rationale of Maxwell. stated, the D.C. Circuit The warrants then would have been suffi- requirement the affidavit be satisfy cient requirements attached to or inserted in the warrant is Fourth Amendment. But the affidavit was formality. not a mere It makes the affida- fact, although with the warrants. This probable immediately vit of cause available never mentioned either the Government entered, person premises whose majority opinion, inescapable or the from explains to him at the outset the rea- First, the record. the warrants contained son for privacy. this intrusion on his And Appendix any the Joint do not have affidavits any possible by it avoids claim suspicion Secоnd, apparent attached. it is from the the citizen involved that the. affidavit later trial court support- docket that the affidavit located in the official file was inserted after ing the issuance of these warrants was the fact of the search. sealed. The docket demonstrates that Moore, 461 F.2d at 1239.11 In the case be- Brown moved to have that affidavit unsealed: us, explanation fore Brown received no when “(37) 1-9-92 BROWN—MOTION Deft to apartment regarding was searched either Unseal Search Warrant in # Documents 90- probable cause for the search or the limita- 3155 and relating #90-3157 to this Case” tions on the search. (these case numbers are the warrant num- disingenuously The Government avoids ad bers). Third, That motion was denied. dressing by simply arguing this issue that Brown’s first Motion to Property Return supporting affidavit was sufficient. The attached, states that the affidavit was not majority opinion decides the issue as the and his affidavit filed with that motion de- it, asserting Government has framed that scribes the events of the search and states may evidence not described in a warrant be Speciаl Agent that Dillender handed him the “reasonably seized if related” to the war warrants, two search but the affidavit “had underlying rant’s offense. The cases cited ripped Finally, been off.” the Government’s majority certainly do stand for this motion, response to that January dated proposition. those cases involve 1992, indicates that Brown had not seen the searches under valid warrants. In United affidavit as of that date: Fortenberry, 860 F.2d 628 Cir. States June, 1990, In a search warrant was 1988), police searching pursuant were to lawfully issued magistrate federal a valid warrant and “came across” reason Nashville prepared based on affidavit ably related evidence. Id. at 636. In United signed by Special Agent Deborah Dil- Korman, (6th Cir.), States v. 614 F.2d 541 lender of the Federal Investiga- Bureau of denied, cert. 100 S.Ct. tion. The affidavit is attached and is (1980), police searching provided to Brown. defendant pursuant “lawfully to a executed search war added). (Emphasis rant” and instrumentality seized “an of a jacket, crime” in the form of a ski facially which was These warrants are so deficient plain only but view listed in the affidavit. the evidence seized should have been us, Id. at 547. In police suppressed. the case Leon, before In searching pursuant were not to a valid war-

11. While Washington,- the court in Moore did hold that the requiring judges D.C. statute to at- express incorporation requirement supporting had been sat- tach all Moore, affidavits the warrant. despite express Furthermore, isfied the lack of words of incor- 461 F.2d at 1239. it was warrant, poration undisputed in the the case involved a that the affidavits were in fact at- pursuant warrant that had been issued to a tached warrant in that case. po- an individual to have protection little Supreme Court held L.Ed.2d exclusionary officers arrive with a warrant con- lice Amendment the Fourth “in any explanation acted reason when an officer tains neither apply rule does search, any particularized on a subse- objectively reliance for the nor de- reasonable Id. at things warrant.” scription places invalidated search to be searched and quently Court, seized, at 3420. The Leon any nor reference to an affidavit to be however, exceptions to the forth four containing particularity, any set nor affida- such standard, of which one objectively reasonable of adher- vit itself. It is not a demonstration circumstances of “depending on the that war- ence to technicalities conclude may so be a warrant particular case authorized rants such as the ones this i.e., faffing particular- facially least, general theory, general In search. deficient — things to be searched or place ize the I are still unconstitutional. there- searches executing officers cannot be seized —that majority III of the fore dissent from Part reasonably presume it to be valid.” opinion. view, my at 3421. warrant, including who executed officers III. Dillender, upon whose affidavit Agent Special majority’s con Finally, I concur with the issued, reasonably could not warrant clusion, reasoning, that although on different virtually blank war- that these have believed perjury convictions should be af valid. rants were jury jurisdic grand A has firmed. federal particularity rе Amendment’s The Fourth might investigate “conduct that have tion to individual from protects the quirement a federal crime” that occurs within the been per rummaging in a exploratory “general, territory federal court which convenes Maryland, v. belongings.” Andresen son’s McInnis, 1319, ‍‌​‌​‌​​​‌‌‌‌​‌‌​​​​​​‌‌​‌‌​‌​​‌​​​​‌​​​‌​​‌‌​​‌​‍it. v. 601 F.2d United States 2748, 2737, 96 S.Ct. (5th denied, Cir.1979), cert. U.S. 1327-28 (1976) Coolidge v. New (quoting 962, 1649, 64 L.Ed.2d (1980)). 2022, 91 S.Ct. Hampshire, 403 U.S. falsely person A who testifies before (1971)). Furthermore, 2038, 29 L.Ed.2d 664 jury may charged grand properly be with discre must not leave it to the warrant “[a] jury investigat grand if even perjury, is, executing what or is officers tion of the ultimately not found to be acts not, Fabricating v.Co. to be seized.” White Furthermore, neither federal crimes. Id. (6th States, Cir. anticipation that a witness government’s 1990). in Finally, warrant “assures the subsequent its might perjury nor commit or seized property is searched dividual whose charge bargain perjury al plea offer to executing offi authority of the of the lawful perjury was committed. the fact that ters search, his cer, and the limits of his need to Chen, F.2d 797-98 United States Chadwick, power to search.” Cir.1991). unfortunately clear that at 2482. It is “perjury not set a did sight of The Government appear to have lost some courts Brown, grand jury had and the trap” principles appear fundamental these conduct, jurisdiction investigate Brown’s considerably fudge on their own willing to

be crime. might constituted federal require which have particularity pronouncements on the duty truth under to tell the no Brown had warrants.12 But that is ments for search assignment he lied. precious oath. Instead to do so. It is for this court reason and its attach- pointed that the warrant example, court out has retreated 12. For D.C. Circuit seized, variety to be down in Maxwell. of documents from the rules laid ments listed a somewhat Dale, (D.C.Cir.), F.2d 819 States v. to contain In United were "believed that the documents - denied, -, cert. regarding state- specific the false information held that the war the court L.Ed.2d [defendant],” and claims made ments rant, undeniably incorporated the affida specificity is case where was a criminal tax vit, satisfy requirements of was sufficient “evidence of the crimes because more difficult though even it was not the Fourth Amendment every type of business almost can be found in entirely the record that the affidavit from clear Id. at 847-48. conceivable.” document at 846-48. The present at the search. was perjury of error relative convictions is

without merit. America,

UNITED STATES of

Plaintiff-Appellee,

Cynthia HORRY, Defendant-Appellant.

No. 94-1625. Appeals,

United States Court

Sixth Circuit. March

Submitted 1995.

Decided March

Case Details

Case Name: United States v. Jonathan David Brown

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 11, 1995

Citation: 49 F.3d 1162

Docket Number: 92-6546

Court Abbreviation: 6th Cir.