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Docket Number

No. S 85 Cr. 1051-CLB.

Attorney(S)

Henry Pittman, Asst. U.S. Atty., Rudolph Guiliani, U.S. Atty., New York City, for plaintiff. Richard Sauber, Stephen Mansfield, Fried Frank, Harris Shriver, Washington, D.C., for defendants.

Judges

Charles L. Brieant

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Smart Summary

Summary of Opinion

Factual and Procedural Background

After a hearing on December 18, 1985, the Court found that the Government had illegally obtained two letters from Duroyd Manufacturing Co., Inc.'s files and initially ruled that the Government could not introduce those letters as evidence at trial. The Government asked the Court to reconsider suppression of the letters under the inevitable discovery exception established in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The indictment alleges that defendants conspired to defraud the United States by making false statements and submitting false claims in bidding fixed-price contracts (negotiated on a cost-plus basis), and that Duroyd overstated purchase prices for parts to increase profits. The two letters imply that Mr. Pimentel wrote to a supplier asking him to overstate a component-part price included in Duroyd's cost calculations for a contract.

Legal Issues Presented

Whether the inevitable discovery exception announced in Nix v. Williams permits admission of the two letters that were illegally obtained from Duroyd's files.
Whether the letters are properly characterized as the "poisonous tree" (and therefore must be excluded) or as "fruit" subject to the inevitable discovery exception.

Arguments of the Parties

Government's Arguments

The Government asked the Court to reconsider its suppression order and argued that the inevitable discovery exception established in Nix v. Williams permits admission of the letters.
In its reply memorandum the Government argued that Nix applies to the "poisonous tree" as well as its fruit, asserting that the Supreme Court "nowhere mentioned the inevitable discovery exception to the 'fruit of the poisonous tree' doctrine." (Reply Memo. at 2, as referenced in the opinion.)

The opinion does not contain a detailed account of any other party's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)	Establishes the inevitable discovery exception to the Exclusionary Rule; presented in the opinion as introduced "in terms of 'fruit,' or indirect product cases."	The Court interpreted Nix as pertaining to the admission of indirect products ("fruit") of illegal government conduct and held that Nix does not authorize admission of the illegally seized letters themselves (which the Court characterizes as the "poisonous tree").
Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)	Held that certain statements violated the Sixth Amendment right to counsel and were inadmissible; factual background to Nix where the body's location was the indirect product at issue.	The Court analogized the illegally seized letters to the inadmissible statements in Brewer, treating the letters as the "poisonous tree" and therefore properly excluded from evidence.
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)	Cited in Nix as precedent concerning the "fruit of the poisonous tree" doctrine.	The Court relied on Nix's citations to cases like Silverthorne to support its position that Nix addressed indirect products ("fruit") and that the illegally seized evidence itself is ordinarily excluded.
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)	Cited in Nix as precedent concerning the "fruit of the poisonous tree" doctrine.	The Court referenced Wong Sun (via Nix) to show that prior law treated the illegally seized evidence itself as excluded while allowing only indirect products to be admitted under certain principles.
United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)	Cited in Nix; another authority referenced regarding the treatment of directly seized evidence versus indirect products.	The Court cited Crews (as cited in Nix) to underscore that in those cases the illegally seized evidence itself was excluded and only indirect products were potentially admissible.
United States v. Alvarez-Porras, 643 F.2d 54 (2d Cir.) cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981)	Addressed suppression and the deterrent purposes of the exclusionary rule; did not unconditionally embrace the inevitable discovery exception.	The Court held Alvarez-Porras is not contrary to its conclusion because Alvarez-Porras found only that, on unusual facts, suppression would not serve deterrent purposes and did not unconditionally adopt the inevitable discovery exception.

Court's Reasoning and Analysis

The Court reaffirmed its factual finding that the Government obtained the two letters in violation of Duroyd's Fourth Amendment rights. Although the Court had earlier stated that it would not suppress the "fruits" of the illegal search because their discovery was inevitable, it clarified that the letters themselves are not "fruit" but are the "poisonous tree." The Court analyzed the Supreme Court's decision in Nix v. Williams and its antecedent cases. It observed that Nix introduced the inevitable discovery exception in terms of "fruit," or indirect products of illegal government conduct, and cited Silverthorne, Wong Sun, and Crews as authorities in that line.

The Court analogized the letters to the inadmissible statements in Brewer v. Williams (which Nix addressed), concluding that the illegally obtained letters must be excluded as the "poisonous tree." The Court rejected the Government's contention (as stated in its reply brief) that Nix applies to the "poisonous tree" itself, noting that Nix and the cases it cites deal with admission of indirect products rather than the direct, illegally seized evidence.

The Court considered the Second Circuit's decision in United States v. Alvarez-Porras and determined it did not compel a different result because Alvarez-Porras did not unconditionally accept the inevitable discovery doctrine and relied on the unusual facts of that case. Finally, the Court noted that the Government is not without remedy: it may subpoena vendors who provided quotes to Duroyd to testify about the communications reflected in the letters, so the Government is not in a worse position than if the search had not occurred.

Holding and Implications

The Court adheres to its decision to suppress the letters themselves as evidence at trial.

Implications:

The direct consequence is that the two letters illegally obtained from Duroyd's files are excluded from evidence at trial.
The Court's analysis limits application of Nix to the admission of indirect products ("fruit") of unlawful government conduct and treats directly seized evidence ("poisonous tree") as properly excluded in this circumstance.
The Government remains able to obtain the same information through lawful means, specifically by subpoenaing vendors who provided quotes to Duroyd to testify about the communications reflected in the letters; thus the Government is not necessarily disadvantaged by the suppression ruling.

So Ordered.

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UNITED STATES of America v. John PIMENTEL and Duroyd Manufacturing Co., Inc., Defendants.

MEMORANDUM AND ORDER

BRIEANT, District Judge.

After a hearing on December 18, 1985, this Court found that the Government had illegally obtained two letters from Defendant Duroyd Corporation's files. Accordingly, this Court ruled that the Government could not introduce these letters as evidence at trial. The Government has asked this Court to reconsider its decision to suppress the letters under the inevitable discovery exception established in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The reader's familiarity with the December 18, 1985 proceedings must be assumed.

The Government alleges that defendants conspired to defraud the United States by making false statements and submitting false claims in the course of bidding for fixed price contracts. These contracts were negotiated on a cost-plus basis. As the most recent superseding indictment spells out, Duroyd allegedly overstated the purchase price for parts used in assembling the contract items, in order to increase its profits on that contract. The two letters illegally removed from Duroyd's files imply that Mr. Pimentel wrote to one supplier asking him to overstate the price of a component part in a letter that Mr. Pimentel included in his cost calculations for that contract.

Although this Court found that the Government had obtained the letters in violation of Duroyd's Fourth Amendment rights, the Court decided not to suppress the "fruits" of this illegal search, because their discovery was inevitable. In stating its decision the Court may have implied that the letters themselves were the "fruit" of the search. Rather, in the parlance of Fourth Amendment jurisprudes, they are the "poisonous tree," not its "fruit". An examination of the facts in Nix itself makes this clear.

Following the disappearance in Des Moines, Iowa in December, 1968 of a ten year old girl, the police arrested and arraigned Williams in Davenport, Iowa, in connection with her disappearance. Although the police had told Williams' attorney that they would not question Williams while they transported him to Des Moines, one of the officers accompanying began a conversation with him. During the course of this "interrogation" Williams made several incriminating statements and also revealed the location of the girl's body. After his first trial, the Supreme Court ruled that introduction of his statements into evidence violated his Sixth Amendment right to counsel and reversed his conviction. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

At his second trial the state did not introduce his statements into evidence, but did introduce evidence of the location of the body. Williams was again convicted. This time the Supreme Court affirmed the conviction, holding that introduction of the body's location did not violate Williams' Sixth Amendment rights, even though it was the "fruit" of unlawful government conduct. The Court held that it was not necessary to suppress the evidence because the State had proved by a preponderance of the evidence that ultimately it would have discovered the body without Williams' statements. Nix v. Williams, supra, 104 S.Ct. at 2512.

The letters here are analogous to the statements found inadmissible in Brewer. That is, they are the "poisonous tree," and properly excluded from evidence. The Government argues in its reply brief that Nix applies to the poisonous tree as well as its fruit because, "[t]he Court nowhere mentioned the inevitable discovery exception to the `fruit of the poisonous tree' doctrine." Reply Memo. at 2. In fact, the Court in Nix introduced its new exception to the Exclusionary Rule only in terms of "fruit," or indirect product cases. See Nix at 2508, citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Nix at 2509, citing United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). In each of these cases, as in Nix itself, the illegally seized evidence itself was excluded from evidence. Only the indirect products of the illegally seized evidence were properly admitted into evidence.

Our Court of Appeals decision in United States v. Alvarez-Porras, 643 F.2d 54 (2d Cir.) cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981), decided before Nix is not to the contrary. In Alvarez-Porras the court did not embrace unconditionally the inevitable discovery exception. Rather, it found only that "on the unusual facts in this case, suppressing the evidence seized would not serve the deterrent purposes of the exclusionary rule." Id. at 66.

The Government may introduce at trial other evidence that will elicit the same information contained in the illegally seized letters. Specifically, vendors who provided quotes to Duroyd can be subpoenaed to testify as to these communications. Thus, it can not claim that it is in a worse position than if the search had not occurred. Cf. Nix at 2511.

For the foregoing reasons this Court adheres to its decision to suppress the letters themselves as evidence at trial.