United States v. Graham

998 F. Supp. 1460, 1997 U.S. Dist. LEXIS 22206, 1997 WL 863494
CourtDistrict Court, N.D. Georgia
DecidedJune 10, 1997
DocketCriminal Action No. 4:94-CR-024-01
StatusPublished
Cited by1 cases

This text of 998 F. Supp. 1460 (United States v. Graham) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Graham, 998 F. Supp. 1460, 1997 U.S. Dist. LEXIS 22206, 1997 WL 863494 (N.D. Ga. 1997).

Opinion

ORDER

HAROLD L. MURPHY, District Judge.

This telemarketing fraud case is before the Court on Defendant’s Motion to Suppress [68] and Defendant’s Motion for' Reconsideration [116].

I. Background

A. Procedural Background

On July 31, 1992, and August 1, 1992, officers from the Catoosa County, Georgia, Sheriffs Department conducted two searches of businesses operated by Defendant and seized various items as evidence. Defendant filed a Motion to Suppress the evidence on December 20, 1995, at which time Defendant was represented by appointed counsel. On March 7, 1996, Magistrate Judge William L. Harper held a hearing to consider Defendant’s Motion. On March 26, 1996, Defendant moved to dismiss his court-appointed attorney and proceed pro se, and Magistrate Harper held a second hearing to consider this request. On April 18, 1996, Magistrate Harper filed a Report and Recommendation denying Defendant’s Motion to Suppress and granting Defendant’s request to proceed pro se.

Defendant and the Government filed various objections and responses to the Magistrate’s Report and Recommendation, and the Court adopted the Report and Recommendation on July 26, 1996. On August 15, 1996, Defendant retained new counsel and filed a Motion to Reconsider the Court’s Order of July 26, 1996, focusing solely on the evidentiary issues raised by Defendant’s Motion to Suppress. The Court held evidentiary hearings on December 18, 1996, and January 3, 1997, and- Defendant and the Government subsequently filed Proposed Findings of Fact and Conclusions of Law. The suppression issues now are ready for disposition by the Court.

B. Factual Background

At the times relevant to this action, Defendant was the proprietor of two businesses known as Classic Car Connection and Sprint Specialties, both of which operated out of Market Square Mall in Ringgold, Georgia. (Tr. of Suppression Hearing on January 3, 1997 (“Tr.III”) at 149,156-57.)

In May 1991, the Tennessee Office of Consumer Affairs received complaints from several customers of Sprint Specialties. (Tr. Ill at 143-44.) The customers told investigators [1462]*1462they had sent money to Sprint Specialties based on promises by telephone marketers that they had won a “major award.” (Id.) The customers told investigators that they never received the awards as promised. (Id.) As a result of the complaints, Defendant entered into a Voluntary Compliance Agreement with the Attorney General of the State of Tennessee, requiring Defendant to desist from unfair or deceptive acts or practices. (Govt.’s Proposed Findings Ex. A.)

In November 1991, the FBI office in Chattanooga, Tennessee, received a complaint from a customer of Sprint Specialties and opened an investigation into the matter. (Tr. Ill at 145-46.) In February 1992, an FBI informant contacted the FBI office in Chattanooga and reported that Defendant was operating what appeared to be a telemarketing fraud operation out of the Market Place Mall, using the name Sprint Specialties. (Id.)

In early 1992, Larry Black, a major with the Catoosa County Sheriffs Department, sent undercover detectives to Classic Car Connection to monitor the presence of several high-priced cars in the business’s showroom, and to advise Defendant that he should obtain a security system for the showroom. (Tr. of Suppression Hearing on Dec. 18,1996 (“Tr.II”) at 42.)

On July 30, 1992, Black received a telephone call from Carl Roberts, who identified himself as the owner of Roberts Motor Company, located in Kingsport, Tennessee. (Tr. II at 3-4.) Roberts claimed to be the owner of a 1987 Chevrolet Corvette (“1987 Corvette”), which he had loaned to Defendant to place in Classic Car Connection’s showroom. (Id.) Roberts told Black that, after one of Roberts’ employees had retrieved the 1987 Corvette from Classic Car Connection, Roberts discovered that the motor and transmission had been removed from the vehicle. (Id. at 4-6.) Roberts further informed Black that Roberts had loaned to “David Graham at Classic Car Connection” a 1980 Corvette equipped with a “Miami Vice” conversion kit (“1980 Corvette”), valued at $50,000, and Defendant had not returned the vehicle. (Id. at 6.)

Black advised Roberts to travel to Black’s office in Catoosa County with proof of ownership of the vehicles. (Id. at 4.) On July 31, 1992, Roberts arrived at Black’s office and showed Black (1) a certificate of title for the 1987 Corvette, issued by the State of South Carolina to John H. Smith, and (2) a certificate of title for the 1980 Corvette, issued by the State of California to Wanda J. Kainz.1 (Id. at 25-26.) Although Roberts was not listed on the titles as the owner of either Corvette, Roberts represented himself to Black as the legal holder of the titles to both vehicles. (Id. at 25-26, 49, 52.) Black did not attempt to verify that Roberts was in fact a car dealer or that Roberts legally held the titles to the vehicles. (Tr. II at 49-54.) Black also did not attempt to contact Smith, whose telephone number was attached to the certificate of title for the 1987 Corvette. (Tr. II at 49-50.) Black testified that, in his experience as an investigator, it is common for car dealers to possess “open titles” to vehicles they have acquired. (Id. at 48, 50-51.) Consequently, Black concluded that Roberts owned, or was legally entitled to possess, both the 1980 and 1987 Corvettes. (Id. at 25-26, 49, 52.)

Following Black’s instructions, Roberts presented the' car titles and repeated the facts described above to Catoosa County Magistrate Judge Dave Carloek. (Id. at 6-7.) Magistrate Carloek issued two warrants for Defendant’s arrest for the theft of the 1980 Corvette and the 1987 Corvette’s motor and transmission. (Id. at 7-9.) The warrants show Roberts to be the owner of both the 1980 and 1987 Corvettes. (Govt.Ex. 6.)

Roberts returned to Black’s office and presented Black with the arrest warrants. (Tr. II at 9-10.) Black prepared an affidavit to obtain a warrant to search Classic Car Connection for the 1987 Corvette’s motor and transmission. (Id.) In the affidavit, Black described the place to be searched as “Classic Car Connection, Cloud Springs Rd. (Market Place Mall), Ringgold, Georgia.” (Id; [1463]*1463Govt. Ex. 1, at 3.) The affidavit further specified that “said Classic Car Connection [is] located in Market Place Mall.” (Govt. Ex. 1, at 3.) Ronald Roach, a detective with the Catoosa County Sheriffs Department, submitted the affidavit to Magistrate Judge Peggy Roberson, who signed a search-warrant authorizing officers to search for “a 350 cubic inch motor and transmission (ser # H5113297) for a 1987 Chevrolet Corvette, (VIN # 1G1YY3188H5113297)” at “Classic Car Connection, Cloud Springs Rd. (Market Place Mall), Ringgold, Georgia.” (Tr. II at 9-11; Govt. Ex. 1.)

Market Place Mall is a rectangular structure totaling 229,000 square feet. (Def.’s Ex. I.) The mall is divided into three sections. The center section consists of a rectangular area divided into approximately 35 smaller retail units, with a wide pedestrian walkway down the middle.' (Def.’s Ex. 19.) The remaining two sections are large, square-shaped “store rooms” that flank each end of the center section. (Id.)

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Bluebook (online)
998 F. Supp. 1460, 1997 U.S. Dist. LEXIS 22206, 1997 WL 863494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-graham-gand-1997.