United States v. Cheryl Burnette

375 F.3d 10, 2004 U.S. App. LEXIS 14095, 2004 WL 1530354
CourtCourt of Appeals for the First Circuit
DecidedJuly 8, 2004
Docket02-1814
StatusPublished
Cited by32 cases

This text of 375 F.3d 10 (United States v. Cheryl Burnette) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cheryl Burnette, 375 F.3d 10, 2004 U.S. App. LEXIS 14095, 2004 WL 1530354 (1st Cir. 2004).

Opinion

LIPEZ, Circuit Judge.

On September 15, 1999, a grand jury returned a two-count indictment against defendant Cheryl Burnette, charging her with wire fraud, 18 U.S.C. § 1343, and impersonating an employee .of the United States, 18 U.S.C. § 912. Burnette was accused of convincing businesses to provide her with goods and services by falsely asserting that she was a government employee and that the government would pay the bills. Before trial, Burnette moved to suppress evidence obtained by law enforcement officials from her residence in Quechee, Vermont, as wtell as evidence obtained as a result of the warrantless search of the outside of her mail at three commercial mail receiving agencies. After an evi-dentiary hearing, the district court denied the motions. On October 5, 2001, following a four-day trial, a jury convicted Bur-nette of both counts in the indictment. Burnette challenges the suppression rulings on appeal. • She also disputes • the adequacy of the district court’s jury instructions regarding reasonable doubt and, in a pro-se supplemental brief, raises a number of additional .claims of error. After careful review, we affirm.

I.

We draw the facts from the suppression hearing as found by the district court and supplemented by the record of the hearing. In a series of fraudulent schemes carried out bétween 1992 and 1996, Cheryl Burnette stole goods and services from numerous businesses and individuals by falsely representing that she was an employee of the EPA and that the goods and services she received would be paid for by the agency. In particular, she created a sham business entity, United States Environmental (USE), which she frequently misrepresented as her employer and a government agency. Burnette obtained fictitious procurement numbers in order to set up government accounts at a number of businesses and obtain goods without payment. She rented apartments by explaining that the EPA would cover the rent, and, then abandoned them several months later. She enrolled in Harvard University’s Summer School after falsely promising that the government would pay the tuition. Also under the guise of carrying out government business, Burnette obtained a Washington, D.C., telephone number for the USE, with an answering machine that identified the organization as a government agency, and purchased mail receiving and forwarding services from three commercial mail receiving agencies (CMRAs), two in Washington, D.C., and one in Boston, Massachusetts.

In late 1996, the United States Environmental Protection Agency (EPA) assigned Cassandra Todd, a Special Agent for the EPA’s' Office of the Inspector General (EPA-OIG), to investigate allegations that a woman using different variations on the *13 name Cheryl Appleton Burnette was pretending to be an employee of the EPA in order to obtain goods and services without paying for them. In the course of that investigation, Todd and other EPA agents inspected the outside of Burnette’s incoming mail at the CMRAs from which Bur-nette was renting mail services. On two occasions, Todd applied for and received mail covers that allowed the United States Postal Service (USPS) to inspect the outside of Burnette’s incoming mail prior to delivery. 1 On a third occasion, the USPS returned the mail cover application to the EPA for more information.

On September 23, 1999, EPA-OIG Special Agent Dennis Poltrino learned that United Parcel Service (UPS) had received a package addressed to Burnette that was scheduled to be delivered by a local taxi service. UPS delivered the package to the taxi service the next day, and Poltrino followed the taxi to Burnette’s residence, located at 25 Alden Partridge Road, in Quechee, Vermont. The taxi left the package addressed to Burnette at the residence, and Poltrino learned from the neighbors that Burnette was living at that address.

On September 27, 1999, Poltrino and another EPA-OIG agent, Melissa Blaire, returned to the Vermont residence with a warrant for Burnette’s arrest. When Bur-nette refused to open the door or leave the residence and subject herself to arrest, Blaire called the Hartford, Vermont Police Department for assistance, while Poltrino received instructions from the Assistant United States Attorney for the District of Vermont to forcibly enter the residence and arrest Burnette. Poltrino kicked in the door of the house and, with Blaire and two local police officers, stepped through the damaged door frame. Finding Bur-nette near the front of the house, Poltrino handcuffed her and placed her under arrest. He asked several times whether anyone else was in the house but Burnette refused to answer. Poltrino and one of the Hartford police officers noticed a man, later identified as Michael Tamulis, emerging from the bedroom. After handcuffing the man, Poltrino and Hartford Police Officer Allen Patterson performed a protective sweep of the residence and its basement to determine whether any other individuals were present in the house. During the sweep, Poltrino observed several items in plain view that he believed were connected to the crimes for which Burnette had been indicted, such as a fax machine, cell phone, laptop computer, and boxes from Harvard University.

After performing the protective sweep, Poltrino informed Burnette and Tamulis that they would be transported to the police station for questioning. 2 Poltrino testified at the suppression hearing that Bur-nette, who was still handcuffed, nodded toward an unopened black briefcase and a black leather bag that were on the floor *14 about three feet away from her and asked to bring them with her to the police station. Burnette objected to this testimony. In her affidavit submitted in support of her motion to suppress, she alleged that she had asked Poltrino if she could bring a garment bag containing a change of clothes to the police station but that Poltri-no had denied that request. At the station, the bags were inventoried, and the police retained toro cards that identified Burnette as an employee of USE.

Poltrino remained at the residence after Burnette and Tamulis were taken to the police station in order to secure it until the front door could be repaired. While waiting, he conducted a second search of the residence, seeking to obtain more detailed information about some of the items he had noticed during his. protective sweep, namely their brand, -names and serial numbers.

The next day, Poltrino applied for' a search warrant to the' United States District Court for the District of 'Vermont. Poltrino included in his warrant application information that he had obtained during his investigation from the initial protective sweep,, the second search of Burnette’s residence, and the inspection of Burnette’s bags. The district court approved the warrant application, and Poltrino searched the residence a third time, seizing the items that he had listed in his warrant application.

Prior to trial, Burnette moved to suppress all evidence derived from the government’s inspection of the outside of her mail at the CMRAs. 3 She did not argue that the government’s review of the outside of her mail violated the Fourth Amendment.

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Bluebook (online)
375 F.3d 10, 2004 U.S. App. LEXIS 14095, 2004 WL 1530354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cheryl-burnette-ca1-2004.