United States v. Frederick E. Lamport, JR., 787 F.2d 474, 10th Cir. (1986)
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Scribd Government DocsUnited States v. Frederick E. Lamport, JR., 787 F.2d 474, 10th Cir. (1986)
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Scribd Government Docs787 F.
2d 474
UNITED STATES of America, Plaintiff-Appellee,
v.
Frederick E. LAMPORT, Jr., Defendant-Appellant.
No. 85-1529.
United States Court of Appeals,
Tenth Circuit.
March 17, 1986.
Steve Soltis, Asst. Federal Public Defender, Oklahoma City, Okl., for
defendant-appellant.
John E. Green, First Asst. U.S. Atty. (William S. Price, U.S. Atty., with
him on brief), Oklahoma City, Okl., for plaintiff-appellee.
Before SEYMOUR, SETH and BALDOCK, Circuit Judges.
SETH, Circuit Judge.
The fraud charged against Dr. Lamport was the filing of claims against
insurance companies for treatment of their insureds when in fact no such
treatment had been provided.
The appeal concerns only the denial of defendant's Motion to Suppress material
secured by the Government pursuant to a search warrant. The information
which was used by the postal inspectors to seek a search warrant, and upon
which the supporting affidavit was based, was for the most part provided by
Mrs. Paula Elliott and Mrs. Beverly Browning. Mrs. Elliott was the secretary of
the defendant at his office in Seminole and Mrs. Browning, the secretary at his
clinic in Tecumseh, Oklahoma. They each had access to this information in the
offices where they worked. The issue which is raised as to the information
provided by these two persons is whether they obtained it at the offices in their
private capacities as "private actions" or whether they were acting, at least as to
some of it, as agents or under the direction of the law enforcement officers.
The testimony at the hearing to suppress separates the material provided to the
The testimony at the hearing to suppress separates the material provided to the
officers at the first meetings between Mrs. Elliott and Mrs. Browning and the
officers from that which may have been provided at later meetings. The record
supports the finding of the trial court that as to Mrs. Elliott all the material used
for the affidavit which had been received from her was provided on the first
contact with the local sheriff. The sheriff prepared a report which went to the
federal authorities which included this material. These authorities took no action
and apparently their investigation was terminated. She or the sheriff had sent
some notes and some tapes which Mrs. Elliott had made after her initial contact
with the sheriff, but these were returned when the investigation stopped and
nothing indicates this material was used.
Somewhat later the sheriff sent his report with the initial material from Mrs.
Elliott to another federal officer and this was followed by an investigation by
postal authorities. The affidavit prepared by this postal inspector, Mr. Odom,
thus utilized the material given by Mrs. Elliott on her first visit to the sheriff.
He also used material he secured from insurance investigators.
From the outset of the suspicions of Mrs. Elliott, she had phoned Mrs.
Browning at the Tecumseh clinic expressing her concern and suggesting that
Mrs. Browning should take some notes and check the files, and she did so. This
was before Mrs. Elliott's contact with the sheriff. Mrs. Browning had collected
a variety of files, a sign-in register, memos and claims before her first contact
with the postal inspector. She delivered all this to him at a first meeting in
Tecumseh on May 1. At this meeting the agent asked her how many active
insurance patients the defendant had. She told him she could get a list of such
patients which she did and gave to the agent later the same day. The trial court
suppressed this list of active insurance patients as furnished by Mrs. Browning
after the first meeting with the agent. This was the only material suppressed.
We conclude that the material used as a basis for the warrant was the result of
"private actions" of Mrs. Elliott and Mrs. Browning as did the trial court. The
only exception being the list of names furnished by Mrs. Browning after the
discussion with agent Odom. The contacts by Mrs. Elliott with Mrs. Browning
did not change Mrs. Browning's status.
This conforms with the standard described by the Ninth Circuit in United States
v. Snowadzki, 723 F.2d 1427 (9th Cir.), as a unilateral act by an individual with
no encouragement or acquiescence by the officers. See also United States v.
Sherwin, 539 F.2d 1 (9th Cir.) (en banc). There were some categories described
in the warrant such as "financial records." The defendant challenges the search
warrant on the ground that it was in terms that were too general. The
description is as follows:
8
"[P]atient
sign-in registers for Seminole and Tecumseh clinics (1983-1984); patient
records of 74 patients (names attached) including but not limited to records of
treatments, x-rays, insurance billings and payments; one record book of payments
from insurance companies; check book stubs, 1983-84; financial records; and any
other property that constitutes evidence of the commission of the criminal offense,
Title 18, United States Code, Section 1341 (Mail Fraud)."
9
We must conclude that the warrant contains a sufficiently specific description
of the things to be seized under Anderson v. Maryland, 427 U.S. 463, 96 S.Ct
2737, 49 L.Ed.2d 627, and Marron v. United States, 275 U.S. 192, 48 S.Ct. 74,
72 L.Ed. 231. The defendant urges particularly that in view of the variety of
circumstances under which mail fraud may be charged the last phrase is too
general. The phrase, in our view, refers to the specific items listed and thus is
not something different. The official who made the investigation was a postal
inspector who was familiar with the scheme and who provided the affidavit,
was the person to whom the warrant was directed, and the one who conducted
the search (with others and in the presence of the defendant) and who executed
the return. The return listed only items specifically described. Thus this case is
unlike Voss v. Bergsgaard, 774 F.2d 402 (10th Cir.), where the warrant was
open ended and the Government failed to pinpoint the statutes violated or to
establish that the alleged crime permeated the business. The circumstances are
very much like those in Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct.
3424, 82 L.Ed.2d 737, as the trial court observed. We do not consider the
warrant to be invalid but if it were the evidence would not be suppressed under
Massachusetts v. Sheppard, or under United States v. Leon, 468 U.S. 897, 104
S.Ct. 3405, 82 L.Ed.2d 677.
10
The defendant also argues that no probable cause was demonstrated but this
argument must fail. Sufficient underlying facts were available to the magistrate.
We considered this issue in Edmondson v. United States, 402 F.2d 809 (10th
Cir.), and United States v. Berry, 423 F.2d 142 (10th Cir.), and there said that
affidavits for search warrants must be tested in a common sense and realistic
manner. Also we there held that the reviewing courts "should show deference
to determinations of probable cause by issuing magistrates." 423 F.2d at 144.
When these standards are supplied it must be concluded that probable cause
was shown.
11
The Supreme Court in United States v. Leon, 468 U.S. 897, ----, 104 S.Ct.
3405, 3422, 82 L.Ed 677, stated that its holding therein left "untouched the
probable-cause standard." This must be taken as an indication of the reliance
which must be placed on the magistrate's determinations absent any obvious
failure. The magistrate who here issued the warrant was provided with
sufficient factual material to establish probable cause as he determined. There is
no failure as described in the examples in Leon. There is no indication that
there was any reliance on conclusory statements as the defendant argues, and
there was no need to. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723.
12
The search warrant was properly executed.
13
The judgment of the trial court entered on the Motion to Suppress is
AFFIRMED.
