United States v. Fernandes, Floyd ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3958
United States of America,
Plaintiff-Appellee,
v.
Floyd Andrew Fernandes,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99 CR 60--Allen Sharp, Judge.
Argued November 1, 2001--Decided November 30, 2001
Before Flaum, Chief Judge, and Manion and
Kanne, Circuit Judges.
Flaum, Chief Judge. Floyd Andrew
Fernandes, a former deputy prosecutor in
South Bend, Indiana, files the instant
appeal after being found guilty of
engaging in a bribery scheme to illegally
expunge certain convictions from Indiana
residents’ driving records. For the
reasons stated herein, we affirm the
ruling of the district court and the
appellant’s conviction.
I. BACKGROUND
In 1993, Floyd Fernandes was hired to be
a deputy prosecutor by St. Joseph County
Prosecutor Michael Barnes and was
assigned to the Traffic and Misdemeanor
Division. When Fernandes was first
assigned to that division, Richard Treesh
was a fixture in Traffic Court. Treesh
owned a local insurance agency which, in
paid advertisements, promised customers
that he could help them get their
licenses back. The Treesh Agency
specialized in the representation of
motorists who had numerous (and often
serious) driving infractions. After his
hire, Fernandes was frequently seen (by
members of the Prosecutor’s office) in
the corridors of the Traffic Court
talking to Treesh.
On August 19, 1996, Michael Barnes
terminated Fernandes from his position as
a deputy prosecutor. Apparently,
Fernandes had been having an affair with
a secretary in the Prosecutor’s office.
That secretary, Marianne Lizzi, and
Fernandes both lied about the affair when
questioned about its existence by Barnes.
After an emotional meeting, Barnes asked
Fernandes to leave the Prosecutor’s
office that day. According to Barnes, it
was his practice, upon terminating an
employee, to ask that employee to leave
the Prosecutor’s office immediately.
After his termination, Fernandes returned
to his office, removed some personal
effects and left the building. Fernandes
claims that he did not remove all of his
belongings upon termination and that he
expected to do so upon his return.
After Fernandes left the building,
Barnes dispatched three deputy
prosecutors to enter Fernandes’s office
to retrieve the files that Fernandes had
been prosecuting. These deputies entered
Fernandes’s office and divided the felony
files amongst themselves according to
their respective schedules. The deputies
left the Traffic and Misdemeanor files
remaining in Fernandes’s office for
Dorothy Tillman-Reed, a prosecutor in
that department. Before she left work on
the night of August 19, Tillman-Reed
entered Fernandes’s office to collect the
Traffic and Misdemeanor files. Upon
sorting through these files, Tillman-Reed
discovered a piece of paper with
handwriting on it. That piece of paper
contained the names of motorists who had
been convicted of driving under the
influence of drugs or alcohol.
Corresponding dollar figures had been
handwritten next to those names. Tillman-
Reed also discovered faxed copies of
motor vehicle reports for two convicted
individuals as well as a signed
expungement order. The expungement order
discovered by Tillman-Reed did not
contain any other information, apart from
a signature. Fernandes ultimately
returned to the Prosecutor’s office
several days later and Barnes confronted
him with those materials.
On December 10, 1999, Fernandes was
indicted by a federal grand jury sitting
in South Bend, Indiana. Fernandes was
charged with engaging in bribery and in
mail fraud to deprive the citizens of St.
Joseph County of his honest services.
At his trial, Fernandes moved to
suppress all evidence gleaned by the
government as a result of the post-
termination search of his office.
According to Fernandes, that search was
conducted in violation of the Fourth
Amendment to the Constitution. The
district court denied Fernandes’s motion
and the government then introduced the
papers found in his office into evidence.
In addition to the handwritten note
found in Fernandes’s office, the
government presented a substantial amount
of evidence against Fernandes. In
particular, the jury heard how the
alleged bribery scheme between Treesh and
Fernandes operated. According to
witnesses, Fernandes used his position as
a prosecutor to gain access to drivers’
files./1 Once he gained access to those
files, he would fill in expungement
orders./2 When these orders were
drafted, Fernandes would transmit them to
Treesh and a representative from his
office would file them with the Bureau of
Motor Vehicles in Indianapolis. For his
part in the scheme, Fernandes was
compensated.
The jury heard testimony from
Fernandes’s former wife, Constance. She
testified that, in 1995, Fernandes told
her that he had taken a part-time job
with Treesh and that Treesh regularly
called Fernandes and visited the
Fernandes home. On one of those visits,
Fernandes’s former wife saw Treesh pass
Fernandes a large sum of cash. Marianne
Lizzi, Fernandes’s girlfriend, also
testified about Fernandes’s receipt of
benefits. Lizzi accompanied Fernandes on
his visits to see Treesh and testified
that Fernandes told her that he earned
more money working with Treesh than he
did (or would) as a deputy prosecutor. At
the time this statement was made,
Fernandes’s salary exceeded $30,000 per
year. The jury was also presented with
evidence that Treesh provided Fernandes
with gifts, merchandise, and loans.
Lastly, the government presented the
jury with evidence of Fernandes’s
attempts to cover up his involvement in
the bribery scheme. According to Marianne
Lizzi, after the incriminating documents
had been found in his office, Fernandes
called her and asked her not to speak
with investigators. Furthermore,
according to an employee with the Bureau
of Motor Vehicles, after the initiation
of the investigation, Fernandes called
her at home and pleaded with her to
destroy the expungement orders that she
had received from Treesh’s
representative.
The jury found Fernandes guilty on all
of the counts levied against him in the
indictment. Fernandes has filed the
instant appeal. According to Fernandes,
this court should overturn his conviction
for three reasons. First, Fernandes
claims that the district court committed
reversible error when it admitted
evidence gleaned from the St. Joseph
County Prosecutor’s search of his office.
Second, Fernandes argues that the
evidence presented at trial was
insufficient to support his conviction on
federal bribery charges. Finally,
Fernandes contends that the evidence
submitted at trial was insufficient to
convict him of engaging in a mail fraud
scheme to deprive the citizens of St.
Joseph County of his honest services.
II. DISCUSSION
A. Motion to Suppress
Fernandes claims that the evidence found
in his office, after his termination, was
the fruit of an unlawful search and,
therefore, should have been suppressed by
the district court. In ruling on a motion
to suppress, we review questions of law
de novo and questions of fact for clear
error. See United States v. Gravens, 129
F.3d 974, 978 (7th Cir. 1997); United
States v. Liss, 103 F.3d 617, 620 (7th
Cir. 1997). "Because the resolution of a
motion to suppress is necessarily fact-
specific, we give special deference to
the district court that heard the
testimony and observed the witnesses at
the suppression hearing." United States
v. Stribling, 94 F.3d 321, 323 (7th Cir.
1996). Under these standards, we find
that the ruling of the district court
should be affirmed.
This court has held that a warrant or
probable cause standard does not apply
when a government employer conducts a
search of its employees’ offices, desks
or files. Shields v. Burge, 874 F.2d
1201, 1203 (7th Cir. 1989) (citing
O’Connor v. Ortega, 480 U.S. 709 (1987)
(plurality opinion)). In O’Connor, a
state agency placed one of its doctor-
employees on administrative leave amidst
allegations of fiscal (and other)
impropriety. While the doctor was on
leave, the agency’s officials conducted
an internal investigation into the
doctor’s conduct and searched his office.
The O’Connor plurality upheld the
legality of that search, stating that to
"ensure the efficient and proper
operation of an agency . . ., public
employers must be given wide latitude to
enter employee offices for work related,
non-investigatory reasons." Id. at 723.
The plurality went on to state that, even
in the context of an investigation,
public employers should be given wider
latitude to search employees’ offices
because "they have an interest
substantially different from ’the normal
need for law enforcement.’" Id. at 724
(citing New Jersey v. TLO, 469 U.S. 325,
351 (1985)). Rather than impose a warrant
requirement on public agencies conducting
investigatory searches of their
employees’ offices, the O’Connor
plurality required only that such
searches be "reasonable." Id. at 726. To
be considered legally valid under the
plurality’s reasoning, a search must be
reasonable in both its inception and
scope. Id. A search will be justified in
its inception when "the search is
necessary for a noninvestigatory work-
related purpose such as to receive a
work-related file." Id. A search is
reasonable in scope when the search
methods adopted are reasonably related to
the objectives of the search and are not
overly intrusive in light of the alleged
misconduct. Id.
This court has adopted the reasoning
advanced by the plurality in O’Connor and
has found that "government employers
[are] subject to a reasonableness
standard when they conduct[ ] workplace
searches." Shields v. Burge, 874 F.2d at
1203 (internal citations omitted);
Gossmeyer v. McDonald, 128 F.3d 481, 490
(7th Cir. 1997). After examining the
facts contained in the record and the
evidence presented at the hearing below,
we conclude that the search conducted in
the instant case was reasonable.
The district court heard testimony from
the County Prosecutor and concluded that
the County Prosecutor undertook the
search of Fernandes’s office so that he
or his assistants "could engage in an
examination of the files and papers that
were left in the office . . . occupied by
Fernandes." As borne out by the record,
the County Prosecutor had a policy of
retrieving files from the offices of
terminated employees (even before they
have been afforded the opportunity to re
move all of their personal effects) upon
termination. The district court did not
find that prosecutors initially entered
Fernandes’s office with knowledge of
Fernandes’s participation in a bribery
scheme or in an effort to marshal
evidence against him. In light of these
facts, we agree with the district court’s
factual determination that the search of
Fernandes’s office lacked an
investigatory pretext and find that it
was reasonable in its inception./3 In
addition, we find that the search was
reasonable in its scope. Based upon the
evidence presented, the prosecutors did
not engage in overly intrusive or abusive
tactics. Rather, as evidenced by the
testimony of Tillman-Reed, the
prosecutors searched only those areas
that were likely to contain work-related
materials. Because the search of
Fernandes’s office was reasonable in
light of the strictures imposed by
O’Connor, we affirm the district court’s
decision.
B. Sufficiency of the Evidence
Fernandes contends that the evidence was
insufficient to convict him of engaging
in bribery in violation of 18 U.S.C. sec.
666, and in a mail fraud scheme to
defraud the citizens of St. Joseph County
of his honest services. At the outset, we
state that a challenge to the sufficiency
of the evidence is an uphill battle,
e.g., United States v. Sanchez, 251 F.3d
598, 601 (7th Cir. 2001), for we review
the evidence in the light most favorable
to the government, indulging all
reasonable inferences that benefit the
prosecution. United States v. Gardner,
238 F.3d 878, 879 (7th Cir. 2001).
Furthermore, because we accord a great
deal of deference to the jury’s verdict,
we will overturn the jury’s determination
"only when the record contains no
evidence, regardless of how it is
weighed, from which the jury could find
guilt beyond a reasonable doubt." United
States v. Phillips, 239 F.3d 829, 842
(7th Cir. 2001) (internal citations
omitted). We have reviewed Fernandes’s
claims under this standard and find them
to be unavailing.
1. Bribery Conviction
Fernandes claims that there was
insufficient evidence in the record to
convict him under the federal bribery
statute. Specifically, Fernandes argues
that the government failed to establish
that the "thing of value" involved in his
bribery scheme was worth $5,000 or more,
as required by 18 U.S.C. sec.
666(a)(1)(B)./4 From our examination of
the record, it is clear that the jury was
presented with ample evidence supporting
Fernandes’s conviction on bribery
charges.
First and foremost, the jury was
presented with the physical evidence
retrieved from Fernandes’s office. On the
documents containing the names of past
DUI offenders, there were handwritten
figures denoting the amount of money to
be paid by each individual. Those dollar
amounts, when added up, exceed $5,000.
Nevertheless, Fernandes claims that
because several of those motorists failed
to make payments (thereby lowering the
amount of money received by either
Fernandes or Treesh to under the $5,000
level), the jury’s verdict should be
overturned. We disagree. While several of
the individuals listed on that
incriminating document did not pay the
amount listed next to their name, at
least one of those individuals paid more
than the figure identified. The
overpayment and the existence of the
list, in and of themselves, could allow a
jury to conclude, beyond a reasonable
doubt, that the "thing of value" in this
bribery scheme exceeded $5,000.
The jury, however, was presented with
more evidence supporting its conclusions
about the value of the bribes received by
Fernandes. For example, Marianne Lizzi
testified that Fernandes told her that he
made "more money working for Don Treesh
than he ever would or will working for
Mr. Barnes as a prosecutor." At the time
of this statement, Fernandes’s salary as
a deputy prosecutor exceeded $30,000 per
year. In addition, Fernandes’s former
wife, Constance, testified that she saw
Treesh pass her husband a large wad of
cash that she estimated to be worth
several hundred dollars. Lastly, the
government presented evidence that
Fernandes received a fax machine, as well
as loans from Treesh. Presented with
these facts, we find that a "rational
trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979).
2. Mail Fraud Scheme
Fernandes next contends that the jury’s
finding that he engaged in a mail fraud
scheme to deprive the citizens of St.
Joseph County of his honest services
should be overturned. According to
Fernandes, the only conclusion that could
possibly be drawn from the evidence
presented at trial was that he failed to
adhere to his ethical obligations as a
lawyer. We disagree.
"To sustain a conviction for mail fraud
under section 1341, the government must
prove three elements: (1) the defendant
participated in a scheme to defraud; (2)
the defendant intended to defraud; and
(3) the defendant used the mails in
furtherance of this scheme." United
States v. Montani, 204 F.3d 761, 769 (7th
Cir. 2000). Under section 1346, the
object of the mail fraud scheme, as well
as the intent to defraud, may be to
deprive citizens of their right to the
defendant’s honest services. Id.
Even a cursory review of the evidence
adduced at trial supports the jury’s
conclusion that Fernandes participated in
a scheme to deprive the citizens of St.
Joseph County of his honest services. We
need not repeat a lengthy recitation of
the evidence presented against Fernandes
to concur in the jury’s finding that he
used, in a willful manner, the trust
attendant upon his position as deputy
prosecutor for illegal ends. For example,
at trial, Marianne Lizzi testified that
Fernandes told her that Treesh paid him
to "fix tickets." Similarly, Fernandes’s
former wife examined several illegally
completed expungement orders and
testified that they were all filled out
in Fernandes’s handwriting. Lastly,
Fernandes’s attempts to cover up his
involvement in the bribery scheme
(calling a Bureau of Motor Vehicles
employee, at home, entreating her to
destroy potential evidence), dramatically
undercuts his argument that his
participation in the scheme amounted to
little more than a violation of his
ethical obligations. See, e.g., United
States v. Jackson, 886 F.2d 838, 845-46
(7th Cir. 1989) (evidence of attempts to
hide, destroy or suppress evidence can be
probative of a defendant’s guilt). In
light of the considerable facts presented
at trial, we affirm the jury’s verdict on
these charges as well.
III. CONCLUSION
For the foregoing reasons, we Affirm the
district court’s ruling as well as the
jury’s verdict.
FOOTNOTES
/1 A supervisor in the Traffic Violations Bureau of
the St. Joseph County Clerk’s office testified
that Fernandes regularly came into her office and
gained access to motorists’ files. In addition,
Fernandes used her typewriter and the materials
in her office to prepare expungement orders.
According to this witness, no other prosecutors
used the typewriter in her office to perform
these duties.
/2 Constance Fernandes identified her former hus-
band’s handwriting on several of the expungement
orders.
/3 Fernandes quite rightly claims that the facts of
this case present a critical distinction to the
O’Connor case. Here, the government entity that
conducted the search of Fernandes’s office was
indisputably "in the business of investigating
the violation of the criminal laws." O’Connor,
480 U.S. at 723. This distinction, however, does
not render the search of Fernandes’s office
illegal. When Prosecutor Barnes ordered the
search of the office, he was not conducting a
criminal investigation. Instead, he was ordering
the retrieval of files to "ensur[e] that the work
of the agency [was] conducted in a proper and
efficient manner." Id. at 724. "Under these
circumstances, the imposition of a warrant re-
quirement would conflict with ’the common sense
realization that government offices could not
function if every employment decision became a
constitutional matter.’" Id., citing Connick v.
Myers, 461 U.S. 138, 143 (1983).
/4 That section provides that an individual shall be
liable for engaging in bribery if a government
employee or agent "corruptly . . . accepts or
agrees to accept, anything of value from any
person, intending to be influenced or rewarded in
connection with any business, transaction, or
series of transactions of such organization,
government or agency involving any thing of value
of $5,000 or more."