APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Gibbons, Sloviter, and Becker, Circuit Judges. Gibbons, Circuit Judge, dissenting.
Defendant, Nicodemo Scarfo, appeals from the judgment of conviction and sentence imposed following his conviction under 18 U.S.C. App. § 1202(a)*fn1 for possession of a firearm by a convicted felon. We affirm the conviction.
On December 23, 1979 at 2:00 a.m., investigators from the Atlantic County Prosecutor's Office*fn2 executed a search warrant at Scarfo's residence in Atlantic City, New Jersey. At the time of the search defendant was not at home. The warrant was issued by a county judge in connection with a state murder investigation and authorized the seizure of a "jogging suit and handgun/or property of the victim." App. at 8a. None of the items sought in the warrant were found at the residence. However, the investigators did seize the following items from the residence: (1) a.22 caliber derringer contained in an eyeglass case; (2) the bottom half of a blue jogging suit (not the one sought in the warrant); (3) a pair of eyeglasses contained in an eyeglass case; (4) a bulletproof vest; (5) an envelope containing newspaper clippings and police reports; (6) a list of telephone numbers and (7) miscellaneous pieces of paper.*fn3
Scarfo was subsequently arrested, tried, and acquitted of the state murder charge. Thereafter, on January 20, 1981, he was indicted by a federal grand jury for violation of 18 U.S.C. App. § 1202(a) (1) by possession of the.22 caliber derringer seized at his residence on December 23, 1979. Scarfo filed a pretrial motion seeking to suppress the items seized by the investigators on December 23, 1979 on the ground, inter alia, that "the items seized were not those sought and named in the warrant." App. at 13a. The district court denied that motion, holding that "the items taken were lawfully seized under the plain view doctrine." App. at 59a.
Thereafter, trial commenced on April 6, 1981 and the jury returned a verdict of guilty on April 9, 1981 and the jury returned a verdict of guilty on April 9, 1981. On appeal, defendant contends (1) that Exhibits 7(A) (the miscellaneous papers) and 7(B) (the telephone list) were illegally seized under the plain view doctrine and were erroneously admitted into evidence,*fn4 and (2) that prosecutorial misconduct requires reversal of the judgment of conviction and remand for a new trial.
To prove that Scarfo violated 18 U.S.C. App. § 1202(a) the government was required to prove beyond a reasonable doubt that defendant (1) had been convicted of a felony under the laws of the State of Pennsylvania, (2) thereafter knowingly possessed a firearm, and, (3) that his possession of the firearm was in or affected commerce. Evidence was introduced at trial that Scarfo pled guilty to involuntary manslaughter in Pennsylvania state court in 1964, a crime punishable under the laws of Pennsylvania at the time by imprisonment for more than two years and thus falling within 18 U.S.C. App. § 1202(c) (2), and that the derringer was manufactured in Illinois and sold by a gun dealer in Pennsylvania. The principal factual issue at trial stemmed from the government's attempt to establish that the derringer gun was constructively possessed by Scarfo. Defendant attempted to show through cross-examination that the gun belonged to Scarfo's wife, Dominica Scarfo. Defendant relied in large part on the testimony of County Investigator Hepburn that when Hepburn found the derringer in question during his search of the drawer of the bureau in the master bedroom of the Scarfo residence, Mrs. Scarfo stated that it was her gun.
Defendant does not argue on appeal that the evidence was insufficient to prove the requisite statutory possession by Scarfo. Instead he argues that some of the evidence which was introduced by the government to establish such possession was inadmissible because it had been illegally seized, and that, as a result, the conviction must be reversed. The evidence which is challenged is the "miscellaneous papers", introduced as Government Exhibit 7(A), which consists of 11 small pieces of paper on which are handwritten notations, sometimes on both sides, of names, numbers, or both, and includes one telephone call message "To Nick", App. at 264a-78a, and the "telephone list" introduced as Government Exhibit 7(B), two sheets of paper with names and telephone numbers. App. at 279-81a. Investigator Hepburn testified he found these papers along with other items in the same bureau drawer in which he found the derringer gun. Id. at 86a. The telephone list, Exhibit 7(B), is a photocopy of a telephone list written on both sides of yellow lined paper, Exhibit 7(B) (1), which was taken from Scarfo's wallet by Investigator McQuigan when he arrested Scarfo the morning following the search and seizure. Id. at 135a. Thus these exhibits tended to link Scarfo to the bureau drawer in which the derringer was found by the police. They have no independent significance in this case, and none was suggested.
Scarfo contends that the plain view exception to the requirement of a search warrant cannot be used to justify the seizure of Exhibits 7(A) and 7(B). Under the plain view exception, law enforcement authorities must have been lawfully on the premises, the discovery must have been inadvertent, and the incriminating nature of the item must have been immediately apparent. See Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). Scarfo contends that in this case the discovery was not inadvertent and the items seized could not be considered to be of an immediately apparent incriminating nature. The government responds that the testimony of Investigator Hepburn establishes both the inadvertence of the discovery and the incriminating nature of the evidence. Hepburn testified that he started his search for the items in the search warrant with the top of the bureau in the master bedroom, and when he didn't find anything of any evidential value he proceeded to search the top bureau drawer. App. at 28a-29a. After finding the derringer gun in that drawer, he resumed the search of that drawer and noticed "some pieces of paper which appeared to be records of some type, possibly loansharking records or bookmaking records. I seized them." Id. at 30a. The government argues that since these records were "with the gun and with the glass case [an eyeglass case in which the derringer was found which had been cut down and acted as a holster]," id. at 32a, they were discovered inadvertently. It also argues that the incriminating nature of the documents was apparent because Hepburn had had prior police training at "two organized crime schools" where he was taught how "different records . . . are kept by bookmakers and loansharks", id. at 30a-31a, and that background, combined with Hepburn's knowledge that "Mr. Scarfo allegedly was involved in that type of activity, according to the police community", id. at 31a, suffices to establish the incriminating nature of the evidence for purposes of the application of the plain view doctrine.
It would be unnecessary for us to resolve this close question of the constitutionality of the seizure if the admission of the evidence would, in any event, be considered harmless. Chambers v. Maroney, 399 U.S. 42, 53, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970). Application of the harmless error doctrine requires the court to "be able to declare a belief that it was harmless beyond a reasonable doubt", Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), an inquiry similar to "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 84 S. Ct. 229 (1963).
This court has had several occasions to apply the harmless error doctrine when the evidence which was admitted on appeal was claimed to have been obtained in violation of the Fourth Amendment. See, e.g., United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1352 (3d Cir. 1972), cert. denied, 415 U.S. 927, 94 S. Ct. 1434, 39 L. Ed. 2d 484 (1974); United States v. Gimelstob, 475 F.2d 157, 161 (3d Cir.), cert. denied, 414 U.S. 828, 38 L. Ed. 2d 62, 94 S. Ct. 49 (1973). In United States v. Vallejo, 482 F.2d 616, 618 (3d Cir. 1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1944, 40 L. Ed. 2d 292 (1974), this court eschewed as unnecessary and thus inappropriate the "intellectually alluring" question of the legality of the seizure of certain evidence because we determined that the mass of evidence aside from the challenged evidence was overwhelming against the defendant. Therefore we affirmed the conviction on the ground that the admission of the "fruit" of the allegedly unlawful search was harmless beyond a reasonable doubt.
More recently, in United States v. Molt, 615 F.2d 141 (3d Cir. 1980), we considered defendant's contention that his conviction for violation of the Tariff Act by knowingly importing reptiles should be reversed on the ground that records obtained from a company to which defendant allegedly sold six imported iguanas were fruits of an illegal seizure. This court, in an opinion authored by Judge Gibbons, applied the harmless error doctrine because the allegedly tainted evidence was "merely cumulative", "was not needed to establish defendant's guilt", "its admission could not . . . have influenced the trial judge's determination" and "there is overwhelming evidence of guilt apart from [that which was challenged]." Id. at 146. The government had produced abundant untainted evidence in the form of testimony from Molt's co-conspirators that was probative of Molt's involvement in the smuggling operation and established that he knowingly imported the reptiles contrary to the Tariff Act.
Turning then to the inquiry as to whether the admission of the miscellaneous papers and the telephone list could be viewed as harmless error, we must first examine the purpose for which they were used when introduced. They were used in the summation of the prosecutor as additional evidence to "establish the fact that that drawer [where the gun was found], that dresser was that of the defendant and that it was under his control." App. at 222a. Had this been the only evidence or the principal evidence to establish a nexus between defendant Scarfo and the dresser drawer, we should be obliged to consider the constitutionality of the seizure. However, there was abundant other evidence to establish Scarfo's connection to that drawer.
Investigator Hepburn testified that his search of the Scarfo residence began in the master bedroom. In the top drawer of the bureau in that bedroom he found an eyeglass case, which contained a pair of eyeglasses, and another eyeglass case "cut down to act as a holster", which contained the.22 caliber derringer. App. at 78a-79a. The two eyeglass cases were attached to each other by a rubber band which was wrapped around them. Id. at 79a. When Hepburn removed these items from the drawer, Mrs. Scarfo stated that the gun belonged to her, but admitted that the eyeglasses belonged to her husband. Id. An optician, Robert Foerster, testified that the eyeglasses seized were identical to a pair of bifocals which his records indicated were prepared for Scarfo. Tr. at 212-13 (April 7, 1981).
Hepburn further testified that in the same drawer in which he found the gun he recalled seeing the defendant's passport and "male socks." App. at 79a. The passport, which contained Scarfo's photograph,*fn5 was introduced into evidence at the trial and identified by Investigator Hepburn as the same passport he observed in the drawer at the time of the search. Id. at 81a.
Hepburn stated that he did not recall seeing any female clothing in the drawer in which he found the gun. Id. at 79a-80a. He seized the bottom part of a jogging suit from another drawer in the dresser and described the clothing in the rest of the dresser as "male clothing." Id. at 118a. Hepburn also testified that he searched the closet next to the bureau and found numerous male suits, shoes and shirts. Id. at 192. He characterized the closet as "a male's closet, all male clothing in it and shoes." Id. at 193a. He stated that he recalled seeing no female clothing in the room. Id.
Investigator Andrew Allegretto testified that he searched a smaller bedroom in the Scarfo residence, located about five feet from the master bedroom, and "all the belongings in there appeared to belong to a woman." Tr. at 43 (April 8, 1981). He stated that he searched both the dresser and the closet and found "woman's clothing." Id. at 44.
We believe that there was overwhelming evidence that the drawer in which the gun was found contained at least some personal effects belonging to defendant Scarfo. The defense sought to show through cross-examination that the police officers made a selective search, that they were not looking for any items of Mrs. Scarfo's, and that therefore their failure to recall or to seize any items of Mrs. Scarfo from the drawer did not establish her lack of possession of the gun. This, of course, was an issue for the jury which rejected the defense theory after hearing the respective arguments.*fn6 Significantly, defendant's counsel did not argue to the jury that none of the items in the dresser drawer belonged to Scarfo, an argument which would have been difficult to make in light of the presence of Scarfo's passport. The presence of two additional items connecting the defendant to the drawer, which were not so physically large as to exclude the possibility that Mrs. Scarfo's effects could also have been there or so personal in nature as to preclude the argument that the drawer may have been shared, was at most cumulative to show Scarfo's use, at least in part, of that drawer. In light of the fact that the gun was found in an eyeglass case attached by rubber band to another eyeglass case which contained eyeglasses which were admittedly Scarfo's, in a drawer which contained Scarfo's passports and male clothing, it strains credulity to conclude, as the dissent does, that the telephone list found in the same drawer "is clearly the strongest" circumstantial evidence suggesting that the gun was Scarfo's. Dissenting typescript op. at 3. Under the circumstances of this case, we believe application of the harmless error doctrine is appropriate. Therefore, we do not reach the Fourth Amendment issue to which the dissent is directed.
Defendant's claim of prosecutorial misconduct has two parts. The first focuses primarily upon the testimony by Investigator Hepburn on redirect examination that the search was conducted as part of a "major investigation" which involved "a majority of the investigators of the special prosecutors' unit of the Atlantic County Prosecutor's Office." App. 114a-115a. Scarfo argues that this information was "wholly gratuitous" on the part of the government, was irrelevant to the charge before the jury and "can only have been intended by the government to prejudice the jurors against this defendant." Appellant's brief at 11. He analogizes this conduct to that considered in United States v. Blanton, 520 F.2d 907 (6th Cir. 1975). In Blanton, during a trial of a defendant also charged with violation of 18 U.S.C. App. § 1202(a) (1), a government agent had testified that the firearm was seized during a search for guns. Questioning of two prosecution witnesses elicited testimony that defendant was under investigation for bank robbery. The court of appeals ordered a new trial after finding that "the deliberate injection of testimony concerning another wholly unrelated offense . . . was error." Id. at 910.
The facts of the Blanton case are distinguishable from those before us because in Blanton, unlike this case, the jury was told both that defendant was the target of an investigation and the nature of the offense for which he was being investigated. In this case the jury might have deduced that Scarfo was under investigation for something since they already knew that five investigators came to his apartment at 2:00 a.m. to execute a search warrant authorizing seizure of a hand gun and a jogging suit. However, they were not told that he was, in fact, a target or that he was being investigated for murder. Therefore, the line of cases dealing with the issue of introduction of evidence of other crimes has no applicability here.
The government claims that it was necessary for it to elicit the testimony about the investigation to show that the investigators had a legitimate purpose for being on the premises. It contends this was needed to rebut the defense attorney's cross-examination of Investigator Hepburn in which the defense sought to demonstrate that Hepburn was looking for items which would tie the defendant, but not Mrs. Scarfo, to the derringer. The government argues that it sought to rehabilitate its witness by demonstrating that there was an independent legitimate purpose for the witness' action in seizing certain items of evidence and not others.
Even if the prosecutor's questions and the responses went somewhat beyond that necessary to meet this objective, the matter was adequately cured by the cautionary instruction given by the trial court on this point. Judge Brotman instructed the jury:
No testimony was received during the trial nor evidence introduced about the defendant, Nicodemo Scarfo, being other than a target or subject of the investigation mentioned. I instruct you that you are not to consider such testimony as bearing on any of the issues in this case, ...