Brief for the Respondent in Opposition — Masiello v. United States

Iu the Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-656

JOHN ANTHONY MASIELLO, JOHN A, MASIELLO, JR.

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 10 THE

UNITED STATES COURT OF APP#ALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The first opinion of the court of appeals (Pet. App.

la-4a) remanding the case to the district court for a

hearing is reported at 434 F.2d 33. The opinion of

the district court on remand is reported at 330 F.

Supp. 1269, and is annexed as an Appendix hereto

(Gov't App.). The per curiam opinion of the court

of appeals (Pet. App. 5a-7a) affirming the judgment

of the district court after remand is reported at 445

F.2d 1324.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on july 21, 1971. A petition for rehearing or rehear-

ing en bane was denied on September 16, 1971, On

October 18, 1971, Mr. Justice Marshall extended peti-

tioners’ time within which to petition for a writ of

certiorari until November 15, 1971. The petition was

filed on November 12, 1971. The jurisdiction of this

Court is invoked under 28 U.S.C, 1254 (1).

QUESTIONS PRESENTED

1. Whether petitioners’ Fourth Amendment rights

were violated by a search and seizure of corporate

checks incident to a valid arrest prior to Chimel v.

California, 395 U.S. 752.

2. Whether the court of appeals violated petition-

ers’ right of due process by not reading the transcript

of the suppression hearing or by not permitting oral

argument.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioners, father and son, were convicted of conspiracy

and bribery of public officials in violation of 18 U.S.C.

371 and 201 (b). Petitioner Masiello Sr. was sen-

tenced to five years’ imprisonment and fined $15,000.

Petitioner Masiello Jr. was sentenced to three years’

imprisonment and fined $5,000. On appeal, the court

of appeals remanded the case for a hearing on the

reasonableness of a search and seizure which took

place on March 19, 1969. 434 F.2d 33. Following an

ee

8

evidentiary hearing on remand, the district court

found the search reasonable. Gov’t App. and 330 F.

Supp. 1269. The court of appeals affirmed per cu-

riam, 445 F.2d 1324.

The facts found by the district court showed

that an indictment against petitioners, Thomas Mc-

Keever, and ANR Leasing Corporation was filed on

March 19, 1969. Petitioner Masiello Sr. was the

president and petitioner Masiello Jr. and McKeever

were officers of the corporation, which leased trucks

to the Post Office. The indictment charged that ANR

and petitioners had bribed postal officials in order to

get and maintain the department’s business. A few

weeks before the indictment was returned postal in-

spectors O’Neill and McFadden had learned of mone-

tary bribes and gifts to postal employees, including

payments on an automobile, and of payments to ANR

by the department for trucks that were not used by

it (H. 17-20, 122, 128, 234-235).

At 10:45 a.m. on March 19, 1969, the indictment

was filed and bench warrants for the arrest of the

three men were requested because of petitioners’ con-

viction record (H. 8, 11-13) (Gov’t App. 10). The

warrants were issued and Inspecters O’Neill and Mc-

Fadden, along with two other postal officials and two

United States marshals, went to the premises of ANR

to execute them. They entered the office at 12:30

p.m., less than two hours after the warrants were is-

sued (H. 22) (Gov’t App. 11). McKeever was the

1“fT” refers to the transcript of the hearing on the motion

to suppress, a copy of which we are filing with the clerk of

Court.

4

only person under indictment present, although a few

employees were also there (H. 27) (Gov’t App. 11).

Inspector O’Neill testified that there was no attempt

to time the arrests so as to be able to catch people on

the premises and that he did not know who was inside

when he entered the premises (H. 23). Inspector Mc-

Fadden had reported to him before they entered that

he thought he had seen petitioner Masiello Sr. at a

restaurant across the street (H. 22-24). Petitioners

were arrested a short time later outside the office

(H. 18).

Incident to the arrest of McKeever the agents seized

numerous items from the office of ANK, including

20,000 cancelled corporation checks.’ Inspector

O’Neill. who was looking specifically for four checks

which had been used to pay postal employees, testi-

fied that he had attempted to find them but that there

were too many checks to search through (Gov’t App.

11-12). He testified that he had not asked the Treas-

urer of ANR, who was present, where they were

because the treasurer was otherwise occupied with

Inspector McFadden at the time (H. 57-59)

ARGUMENT

1. Petitioners argue that, accepting as credible

only the government’s evidence, the court should have

found the search invalid on the ground that the ar-

2 McFadden testified that he had expected records to be

seized and took three cartons with him in order to carry the

records (H. 114-115).

? The nature of the records scized is more fuliy described in

Gov't App. #/. a.

5

rest of McKeever was merely a pretext for the search.

The arrest made under an indictment returned by

the grand jury cannot be deemed a pretext. Inspector

O’Neill testified that there was no attempt to time

the arrests in order to insure that some one was on

the premises. The fact that O’Neill may have decided

in advance to search if an arrest occurred does not

invalidate the search as a pretext. The right to search

incideut to arrest was established prior to Chimel v.

California, 395 U.S. 752. That the agents hoped to

be in a position to make use of that right does not

establish any impropriety in attempting to arrest cor-

porate officers charged with crime in the business

premises of the corporation.

Petitioners also contend that the search incident to

McKeever’s arrest was too broad. However, the rec-

ord shows that this case did not involve an indiscrimi-

nate search of the six-roorm premises for evidence of

any possible crime. See Kremen v. United States,

353 U.S. 346; Von Cleef v. New Jersey, 395 U.S.

814. The evidence seized pertained to the bribery of

postal officials and related matters involving ANR

trucks and the post office. Many files were not

searched or seized. No attempt was made to enter

the office of petitioner Masiello, Sr. despite the fact

that the agents had other information as to his in-

volvement in loansharking (see H. 30-31, 49-54)

(see generally Gov’t App. 13). The search in this

case was thus well within the limits for searches in-

cident to arrest permitted prior to Chimel v. Califor-

nia, 395 U.S. 752. See Harris v. United States, 331

U.S. 145.

6

Petitioners also eentend that the seizure of the can-

celled checks was illegal, even if the search was legal.

They base this contention on language in the court

of appeals opinion (Pet. App. 6a) which termed the

material seized “likely sources of admissible evidence

of the crime.” Petii.oners argue that Warden v. Hay-

den, 387 U.S. 294, permits only the seizure of “evi-

dence,” not likely sources of evidence, and that the

20,000 checks, in 12 cartons, were merely likely

sources. However, it is impossible to know with cer-

tainty whether property seized is in fact evidence of

the crime: it is enough to justify the seizure that it

probably is evidence. In this case that test was met.

Agent O’Neill seized all 12 cartons of checks because

he was unable on a quick search of them to find the

four he was looking for (H. 57-58) (Gov’t App. 11-

12). The seizure of the 20,000 checks was justified

to avoid the risk that the particular, incriminating

checks might be destroyed by an employee. Cf. Cham-

bers v. Maroney, 399 U.S. 42.

2. Petitioners also contend that the court of ap-

peals denied them due process and the assistance of

counsel by not permitting defense counsel to argue

orally on appe2i after the remand hearing and by

not reviewing the transcript from the remand hear-

ing. The thrust of their argument appears to be

that, since the court of appeals had ordered the re-

mand hearing, it was obligated to read the transcript.

There is no merit to this argument. The court of

appeals had before it the district court’s findings and

report on the reasonableness of the search (Gov't

7

App.). It was thus proper for the court of appeals

to dispense with a second argument. See Price v.

Johnson, 334 U.S. 266, 286.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

HENRY E. PETERSEN,

Acting Assistant Attorney

General.

EUGENE M. PROPPER,

Attorney.

DECEMBER 1971.

8

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

69 Cr. 417

[Microfilm Jun. 25, 1970}

UNITED STATES OF AMERIVA

v.

JOHN ANTHONY MASIELLO, ET AL., DEFENDANTS

APPEARANCES:

WHITNEY NoRTH SEYMOUR, JR.

United States Attorney

Southern District of New York

Attorney for United States of America

By: EDWARD M. SHAW

Assistant United States Attorney

ABRAHAM BRODSKY

233 Broadway

New York, New York

IRVING ANOLIK

225 Broadway

New York, New York

Attorneys for Defendants

LASKER, D. J.

On January 20, 1970, defendants John Anthony

Masiello and John A. Masiello, Jr., were convicted,

after a trial by jury, of various violations of Title

9

18, U.S.C. §210(b) and conspiring to commit such

violations.

On March 19, 1969, a search and seizure had oc-

curred incident to the arrest of co-defendant Thomas

McKeever. A pretrial motion to suppress the evi-

dence seized was denied by Judge Palmieri without

a hearing. Certain checks taken during that search

were introduced into evidence against the Masiellos

and over ‘heir objections.

Defendants appealed their convictions. and on No-

vember 10, 1970, the Court of Appeals remanded the

case for a hearing on the reasonableness of the search

of March 19, 1969. The Court of Appeals found that

there were “considerable discrepancies” between the

affidavits of the government officers and that of an

official of the corporation whose checks were seized

as to what occurred during the search and seizure.

The Court then observed:

“It has been claimed that extensive portions of

the enormous amounts of material seized have

no possible relevance to the case at hand. It was

further alleged that the federal officers conducted

‘a general ruinmage of the suite and a wholesale

seizure of the files and records contained therein.’

If these characterizations of the facts are accu-

rate, the activities of the federal officers cou!d

hardly be considered consistent with the require-

ments of the fourth amendment. See Von Cleef

v. New Jersey, 395 U.S. 814 (1969) (per cu-

riam); Kremen v. United States, 353 U.S. 346

(1957) (per curiam).

“We therefore ccnclude that a hearing should be

held and findings be made below on the extent

and reasonableness of the search and seizure,

and remand to request that Judge Lasker con-

10

duct such a hearing and report. We meanwhile

retain jurisdiction of the appeal.”

United States v. John Anthony Mesiello, et al,

(Slip Op. No. 97, Oct. 28, 1970).

The standards to be applied in determining the

reasonableness of the search are those which existed

prior to the ruling in Chimei v. California, 395 U.S.

752 (1969) (Williams v. United States, —— U.S.

—, Apr. 5, 1971).

L

The hearing on remand was held on February 19

and February 22, 1971. The witnesses for the gov-

ernment included Edward J. O’Neill, John J. Mce-

Fadden, and Frank J. Nemic, all of whom were postal

inspectors in New York City on the date of the search.

Witnesses for the defendants were Thomas Martin,

an employee of A.N.R. Leasing Corporation at the

time of the search, and Daniel Dillon, past secretary

and employee of A.N.R. Leasing Corporation. On the

basis of the testimony and the exhibits placed in evi-

dence, 1 find the following facts:

O’Neill was in charge of the investigation of al-

leged bribery of postal officials by the defendants.

At 10:45 A.M. on March 19, 1969, the indictment

against defendants was filed. Knowing, as O’Neill

did, before the handing down of the indictment, that

John Masiello, Sr. had been convicted of smuggling,

11

court issued the warrants.’ At 12:30 Inspectors

O’Neill. McFadden, Nemic and Myers arrived at the

Masiello office, which was also the office of A.N.R.

Leasing Corporation, controlled by the Masiellos, at

332 East 149th Street. They found McKeever on the

premises and arrested him.

Prior to the time of the arrest, O’Neill had been

informed by Andrew Daly, a postal employee, that

A.N.R. Leasing and Coastwide Leasing had paid

hotel bills for various postal employees and that the

Masiellos had furnished him and another postal em-

ployee with free liquor and discount TV sets. In

addition, one Bert Brodsky had informed O’Neill

that John Masiello, Sr. had stated in his presence

that Masiello or one of his companies had made pay-

ments on an automobile for Michael DeMasi, a postal

employee, and that Masiello, Sr. had advised Masiello,

Jr. to cancel further payments when DeMasi was no

longer useful to A.N.R.

Accordingly, after the arrest of McKeever, O’Neill

asked Thomas Martin, the A.N.R. bookkeeper, where

the cancelled checks of A.N.R. and related companies

were kept. In response Martin exhibited to O’Neill

in room “C” 12 cartons of cancelled checks (each

514" x 11” by 25’’) of A.N.R. and other Masiello

companies, including Coastwide Leasing, Corporate

Systems, Inc., and Set-Mar Holding Corporation, to-

taling approximately 20,000 checks. O’Neill looked

through the checks to see if he could find those made

to cover the hotel bills of postal employees or those

for DeMasi’s car or other payments to or for postal

? The arrest occurred after indictment and was lawful and

with probable cause. Indeed, there seems to be no issue on this

point. There is no indication that the question was raised by

defendants before the Court of Appeals, nor was it included in

the Court’s mandate or in the defendants’ briefs on remand.

12

employees, but, as he observed, “I looked, but there

were so many checks that I just gave up.” (Tr., p.

58). The checks were seized.

McFadden asked Martin to show him where the

check stub books were. Martin produced nine such

books from a file cabinet in his room, five for A.N.R.,

two for Set-Mar, one for Coastwide, and one for

Corporate Systems.

The arresting officers also seized an A.N.R. cash

receipts and disbursements book for the period 1966-

1967. They did not take the volume covering the cur-

rent period.

Bearing in mind the allegation that the Masiellos

had been paying for DeMasi’s car and that Brodsky

had told Inspector Nemic that he believed A.N.R.

was receiving payment for more vehicles than it was

furnishing to the government, Inspector McFadden

asked Martin for vehicle payment records. Martin

produced 154 truck and vehicle booklets which were

seized.

The last item seized was a purchase order book of

A.N.R. found on Martin’s desk. According to Mc-

Fadden, this item was taken because “[w]e had prior

to going to ANR’s office, had learned fron: an em-

ployee in the garage that a damage claim filed by

ANR Corporation had been questioned as to its va-

lidity, and he had gone to the invoice listed, new

parts on the repair on ANR tractor. And the em-

ployee had gone to the company on which the invoice

had been written and found that this coupon was

among a number that had been missing from that

office.” (Tr., p. 100).

The inspectors had on hand in their cars unassem-

bled cartons which were brought up to the office and

assembled. The material seized was placed in the

cartons and removed. A handwritten inventory of the

13.

material taken was prepared in duplicate by the in-

Spectors, signed by McF adder, and initialed on each

page by Martin.

Substantial amounts of material on the premises

were neither searched nor seized. The material not

seized included the contents of four 4-drawer file

cabinets in Martin’s room, eight 4-drawer file cabi-

nets in Alcove “D” which Dilion told O’Neill con-

tained “motor vehicle records, bills, [and] invoices”

and boxes of papers contained in room “C”. No

search or seizure was made in the room of John

Masiello, Sr.

There is no dispute that the items designated above

as seized were in fact taken by the government.

There was sharp dispute at the hearing as to whether

the government had in fact seized further items.

Both defense witnesses testified that the inspectors

took more records than listed in the signed inventory

(GX 3), while the government witnesses testified

that the list was complete. Martin asserted that a

variety of documents other than those listed had been

taken and that the inventory itself was not four but

five or six pages in length.

Dillon did not participate in preparing the inven-

tory, but “think[s] there were six or seven pages,”

never examined the document, but saw it laid out dis-

arranged on Martin’s desk and “doubt[s]” that there

were only three to four pages. Martin admitted that

he had received a copy of the inventory and delivered

it to the Masiellos, but on the government’s request

the defendants were unable to produce their copy of

the inventory or to explain its whereabouts or dis-

appearance.

In the light of all the evidence of record, I find the

testimony of the government witnesses as to the ex-

tent of the search credible and that of defense. wit-

14

nesses untrustworthy, or, at the least, inaccurate and

undependable.

Il.

The issue to be determined is the reasonableness

of the search and seizure as measured by the stand-

ards existing prior to Chimel v. California, supra.

Those standards were spelled out in United States v.

Harris, 331 U.S. 145 (1947), and United States v.

Rabinowitz, 339 U.S. 56 (1950).

The government contends that the search, inci-

dental to a lawful arrest under warrant, was reason-

able in scope under pre-Chimel standards. The de-

fendants describe the search as “a general rummage

of the suite and a wholesale seizure of the files and

records contained therein,” which cannot be sustained

even under the criteria applicable prior to Chimel.

On the facts found above, it is concluded that the

search, although admittedly involving substantial doc-

umentary material and several rooms of the A.N.R.

office, was reasonable when measured by the appli-

cable standards.

Defendants rely on three key decisions of the Su-

preme Court: Kremen v. United States, 353 U.S.

346 (1957); Von Cleef v. New Jersey, 395 U.S. 814

(1969), and Vale v. Louisiana, 399 U.S. 30 (1970).

In Kremen, the arresting officers searched the cabin

where petitioners were found and seized its entire

contents, removing them about 200 miles for the pur-

pose of examination. The Court, in a brief per cu-

riam opinion, found the search unreasonable. The

brevity of the opinion limits its usefulness as a guide,

but Justice Harlan’s concurring opinion in Von Cleef

(at 817) casts light in the dark corners, stating:

“Kremen simply prohibits the police from seiz-

ing the entire contents of a building indiscrimi-

15

nately, without considering whether the prop-

erty they take is relevant to the crime under

investigation; it does not bar the removal of all

property that may reasonably be considered evi-

dence of crime.”

Here no such indiscriminateness occurred. The

subject matter seized related to the charges in the

indictment. All of the material taken was in a cate-

gory relevant to the investigation. It is true that a

substantially greater number of items—checks, for

instance—than proved necessary to the trial were re-

moved. However, these were seized because it was

not practical for the inspectors, the defendants, or

their agents, to ascertain within a reasonable time

precisely which checks related to the offenses charged.

Von Cleef also involved a warrantless search inci-

dental to an arrest. There the police searched the

entire house and seized several thousand articles. The

search was held unconstitutional under the pre-

Chimel, Rabinowitz and Harris standards. But the

indiscriminateness of the search in Von Cleef is illus-

trated by the opinion’s description of it as “combing

a three-story, 16-room house from top to bottom and

carting away several thousand papers, publications

and other items.” In the instant case, the search did

not involve a “combing” nor were the entire premises

searched. While a good many items were removed,

the categories of the material seized were discrimi-

natingly determined and the search discriminatingly

omitted various rooms, cabinets and desks. The in-

Spectors searched only the rooms which the Jefend-

ants or their agents specified to be those in which

evidence relating to case was located, and only care-

fully selected material was removed.

In Vale, the defendant was arrested at the front

steps of his house. Thereafter the arresting officers

ee, ane

16

kA A OE SARE Ne A a te

searched the house itself and seized incriminating

material. The search was held unreasonable. The

case at hand is distinguished from Vale in several

respects. In the first place, the Vale opinion held

that the search was not incidental to an arrest be-

cause it did not occur on the premises searched. Here

the arrest was made in the premises which were

searched. Second, the Vale search was of a dwelling

house. Here, as in Rabinowitz, where emphasis in |

approving the search was placed on the fact that the

search was conducted in “a business room to which

the public, including the officers, was invited,” the

search was of a business establishment. The signifi-

cance of this point was confirmed by repetition in

Von Cleef. Third, the Vale search was held not to

be in the immediate vicinity of the arrest; but Hill

v. California, —— U.S. (April 5, 1971), ap-

proved a search involving four separate rooms—

similar to the instant case—apparently thereby find-

ing such search to be “within the immediate vicinity

of the arrest.” :

In the instant search the inspectors surely had

probable cause to believe that they would discover

documentary evidence of the crimes for which de-

fendants had been indicted. Certain categories and

only certain categories of material were seized. Those

categories related clearly to the offenses charged.

Faced with the practical exigencies required by the

review, for example, of 20,000 checks in order to find

those relating to the crimes in question, and the risk

that the items sought could be destroyed if left be-

hind, the seizure was reasonable judged by the ap-

plicable pre-Chimel standards.

Defendants also contend that the government must

show not only that the search was reasonable, but

that it was not feasible to obtain a search warrant

17

under the circumstances existing at the time. How-

ever, the cases cited by defendants’ counsel do not

appear to support this proposition, and indeed the

law, in the case cf a search incident to a lawful ar-

rest, is to the contrary: As the Court stated in Cooper

v. California, 386 U.S. 58, 62 (1967) (quoting

United States v. Rabinowitz, supra, 339 U.S. at 66):

“It is no answer to say that the police ciuld

have obtained a search warrant, for ‘[t]he rele-

vant test is not whether it is reasonable to pro-

cure a search warrant, but whether the search

was reasonable.’ ”

The Court of Appeals of this Circuit cited this

passage as expressive of the law in United States

ex rel. Mahoney v. LaVallee, 396 F.2d 887, 889

(1968), cert. den. 395 U.S. 985 (1969), remarking

that “. . . we are reassured [by the Supreme Court’s

statement in Cooper v. California] that the Supreme

Court still adheres to its pronouncement in Rabino-

witz.” This principle does not appear to have been

altered by the Chimel decision (at least insofar as it

applies to searches incident to arrest as there de-

fined), but, in any event, clearly was the pre-Chimel

standard as noted in the 1968 opinion in Mahoney,

supra.

Upon the evidence of record I find that the search

and seizure iv the instant case were reasonable under

applicable law.

Dated: New York, N. Y.

June 22, 1971

/s/ Morris E. Lasker

U.S.D.J.

W ov. Ss. covernment paintine o- ren; 1971 452996 383