United States of America v. Francis Kenneth Friedemann; Arpad Anton Chabafy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
No. 99-4275
FRANCIS KENNETH FRIEDEMANN;
ARPAD ANTON CHABAFY,
Defendants-Appellees.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARPAD ANTON CHABAFY,
No. 99-4282
Defendant-Appellant,
and
FRANCIS KENNETH FRIEDEMANN,
Defendant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-96-146-MU)
Argued: March 3, 2000
Decided: April 6, 2000
Before LUTTIG and TRAXLER, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.
_________________________________________________________________

-- 1 of 5 --

Affirmed in part, vacated in part, and remanded by published opinion.
Judge Luttig wrote the opinion, in which Judge Traxler and Senior
Judge Kiser joined.
_________________________________________________________________
COUNSEL
ARGUED: David Alan Brown, Charlotte, North Carolina, for Appel-
lant. James Frank Wyatt, III, LAW OFFICES OF JAMES F.
WYATT, III, Charlotte, North Carolina, for Appellees. ON BRIEF:
Mark T. Calloway, United States Attorney, Brian Lee Whisler, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellant. Harold J.
Bender, BENDER & MATUS, Charlotte, North Carolina, for Appel-
lee Friedemann.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
The United States appeals from the district court's order granting
the motion of defendants Francis Friedemann and Arpad Chabafy to
suppress certain evidence obtained from containers in their possession
at the time of their arrest, and Chabafy cross-appeals from the district
court's denial of his motion to suppress his statements to Federal
Bureau of Investigation (FBI) agents as taken in violation of his
Miranda rights. For the reasons that follow, we affirm in part, vacate
in part, and remand for further proceedings.
I.
FBI agents staged a transaction wherein they offered a loan to
Friedemann and Chabafy, knowing, based on information obtained
from a cooperating witness, that the defendants would offer fraudu-
lent security on the loan. During the encounter with undercover
agents, the defendants each accessed their briefcases, and Friedemann
accessed a pouch. The agents arrested the defendants and conducted
a protective sweep of the briefcases and pouch for weapons, but did
2

-- 2 of 5 --

not seize or examine any of the documents contained therein. Instead,
they obtained a warrant to search the briefcases and pouch after filing
a search warrant affidavit that omitted reference to the fact that
Friedemann, an attorney, had asserted that documents in his briefcase
were protected by the attorney/client privilege. Meanwhile, FBI
agents read Chabafy his Miranda rights, but he agreed to be inter-
viewed and provided the agents with incriminating statements.
After the defendants were charged with mail and wire fraud, a
magistrate judge ruled that the evidence obtained from the briefcases
and pouch was admissible, but that Chabafy's statements to the FBI
were taken in violation of his Miranda rights and were therefore inad-
missible. The district court reviewed both of these issues de novo, and
came to a conclusion opposite that of the magistrate in each instance.
The United States now appeals from the district court's order granting
the defendants' motion to suppress the evidence obtained from the
briefcases and pouch, and Chabafy cross-appeals from the district
court's order denying his motion to suppress his statements to FBI
agents.
II.
The district court held that the warrant authorizing the search of the
two briefcases and pouch was invalid under Franks v. Delaware, 438
U.S. 154 (1978), because the search warrant affidavit filed by federal
agents failed to represent that Friedemann had asserted the attor-
ney/client privilege with respect to the documents in his briefcase.
J.A. 433-37. The United States argues that the district court misap-
plied Franks. We agree.
Franks holds that, if a defendant makes an initial showing that a
warrant affidavit contained an intentionally or recklessly false state-
ment that was necessary to the finding of probable cause at the time
the warrant was issued, he is entitled to a hearing. See id. at 2684-85.*
If at the hearing the district court determines that the affidavit does
contain such a false statement, and that, in the absence of that state-
_________________________________________________________________
*The courts of appeals, including this court, have extended Franks to
apply to omissions, in addition to false statements. See United States v.
Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990).
3

-- 3 of 5 --

ment, probable cause did not exist to support issuance of the warrant,
the court ordinarily must exclude the evidence obtained pursuant
thereto. Franks thus serves to prevent the admission of evidence
obtained pursuant to warrants that were issued only because the issu-
ing magistrate was misled into believing that there existed probable
cause.
By contrast, the present case does not involve a misrepresentation
or omission that in any way altered the probable cause calculus. Even
assuming that the failure to include Friedemann's assertion of the
attorney/client privilege in the warrant affidavit was intentional or
reckless (an assumption that finds scant support in the record before
us), the fact remains that the question whether a document is privi-
leged has nothing at all to do with the separate question whether there
existed probable cause to justify the issuance of a warrant to seize that
document. In other words, the probable cause determination would
not have changed in the slightest had the warrant affidavit at issue
made clear that Friedemann had asserted the attorney/client privilege
with respect to some of the documents seized. Cf . Franks, 438 U.S.
at 171-72 ("[I]f, when material [in the warrant affidavit] that is the
subject of the alleged falsity or reckless disregard is set to one side,
there remains sufficient content in the warrant affidavit to support a
finding of probable cause, no hearing is required.").
As such, we conclude that Franks is inapplicable on the present
facts, and that the district court therefore erred in granting the motion
to suppress the evidence at issue.
III.
Chabafy argued below that his post-arrest statements to FBI agents
should be suppressed because his Miranda rights, as defined in
Edwards v. Arizona, 451 U.S. 477 (1981), were violated when the
agents continued to question him in the absence of counsel after he,
having initially waived his right to an attorney, requested that counsel
be present for any further interrogation. The agents who conducted
the interrogation testified that Chabafy never actually requested his
attorney. The district court denied Chabafy's motion to suppress his
statements, noting that the issue amounted to the question whether the
court believed the agents' or Chabafy's version of the events, and that
4

-- 4 of 5 --

the court found the agents' testimony to be "far more credible"
because Chabafy's testimony "varied widely" and was "much more
consistent with his self-interest in having his statements suppressed
than it [was] with the weight of the evidence and the totality of the
circumstances surrounding his arrest and interview." J.A. 430-31. On
appeal, Chabafy does not contest that the district court's decision
amounted to a credibility determination, but contends that it was the
agents' testimony, rather than his own, that was not credible. On the
record before us, however, there is simply no basis for the conclusion
that the district court erred, after presiding over a hearing in which
both the agents and Chabafy testified, in concluding that the agents'
testimony was more believable than that of Chabafy.
We therefore conclude that the district court committed no revers-
ible error in denying Chabafy's motion to suppress his post-arrest
statements to FBI agents.
CONCLUSION
For the foregoing reasons, we vacate the district court's order
granting the defendants' motion to suppress the evidence obtained
from their briefcases and pouch, affirm its denial of Chabafy's motion
to suppress his statements to FBI agents, and remand for further pro-
ceedings.
IT IS SO ORDERED
5

-- 5 of 5 --