United States v. Alfred Gene Bridges

344 F.3d 1010 UNITED STATES of America, Plaintiff-Appellee, v. Alfred Gene Bridges, Defendant-Appellant. No. 01-30316. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 11, 2003 — Seattle, Washington. Filed September 24, 2003. COPYRIGHT MATERIAL OMITTED Robert Stephens, Jr., Billings, Montana, for the defendant-appellant. James Seykora, Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee. Appeal from the United States District Court for the District of Monatana; Wm. Fremming Nielsen, District Judge, Presiding. * D.C. No. CR-00-00053-WFN. Before: Dorothy W. Nelson, Sidney R. Thomas, Circuit Judges, and Dean D. Pregerson, District Judge. ** Opinion by Judge D.W. Nelson; Partial Concurrence and Partial Dissent by Judge Thomas. OPINION D.W. NELSON, Senior Circuit Judge: 1 Alfred Bridges appeals his conviction following a jury trial for conspiracy to defraud the United States, making false claims to the United States, and mail fraud. Bridges contends that the district court erred in denying his motion to suppress evidence that was seized by the Government with an invalid search warrant. Bridges also challenges the district…

Opinion by Judge D.W. NELSON; Partial Concurrence and Partial Dissent by Judge THOMAS.

OPINION

Alfred Bridges appeals his conviction following a jury trial for conspiracy to defraud the United States, making false claims to the United States, and mail fraud. Bridges contends that the district court erred in denying his motion to suppress evidence that was seized by the Government with an invalid search warrant. Bridges also challenges the district court’s conviction and judgment because the Government allegedly violated his rights under *1013 the Due Process clause by applying a “secret” policy to him in violation of the Taxpayer Bill of Rights. Lastly, Bridges claims that the district court’s instructions to the jury were deficient. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We agree with Bridges that the search warrant was invalid and excessively broad in its scope. Bridges’s Due Process claim is without merit, and we decline to reach the issue of the adequacy of the challenged jury instructions. Accordingly, Bridges’s conviction is vacated and we remand to the district court for a new trial.

I. Factual and Procedural Background

Bridges operated a tax consulting…

concurring in part and dissenting in part.

I agree completely with the majority’s thorough and excellent legal analysis. When the execution of a search warrant will likely result in the termination of a business, as occurred in this case, special care must be given to ensure that the scope of the warrant is not overly broad. I also agree that, if the government is relying upon the “permeated with fraud” exception to support an application for an otherwise overly-broad search warrant, it should state so in the application rather than attempting a post-hoc rationalization.

However, under the specific facts of this case, I cannot fault the district court’s conclusion. If the affidavit is read in context and in its entirety, it establishes probable cause to believe that the “central purpose” of the business was to serve as a front for defrauding taxpayers. See United States v. Rude, 88 F.3d 1538, 1550 (9th Cir.1996) (permeated with fraud exception applied because it was clear from the affidavit that the business’ “central purpose” was to serve as a front for defrauding investors); United States v. The Offices Known as 50 State Distributing Co., 708 *1021 F.2d 1371, 1374 (9th…