U.S. v. Thompson

• Decision Date: 06 July 1994
• Docket Number: No. 1148,D,1148
• Parties: UNITED STATES of America, Appellee, v. Earl THOMPSON, Defendant-Appellant. ocket 93-1602.
• Court: U.S. Court of Appeals — Second Circuit

Page 62

29 F.3d 62

UNITED STATES of America, Appellee, v. Earl THOMPSON, Defendant-Appellant.

No. 1148, Docket 93-1602.

United States Court of Appeals, Second Circuit.

Argued March 24, 1994.

Decided July 6, 1994.

William I. Aronwald, Aronwald & Pykett, White Plains, NY, for defendant-appellant.

Marjorie Miller, Asst. U.S. Atty. for the S.D. of N.Y., New York City (Mary Jo White, U.S. Atty. for the S.D. of N.Y., John W. Auchincloss II, Asst. U.S. Atty. for the S.D. of N.Y., of counsel), for appellee.

Before OAKES, MESKILL, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Earl Thompson appeals from a judgment entered on August 23, 1993 after a jury trial in the United States District Court for the Southern District of New York (Broderick, J.), convicting him of one count of knowing possession of a false Social Security card in violation of 18 U.S.C. Sec. 1028(a)(6), three counts of bankruptcy fraud in violation of 18 U.S.C. Sec. 152, one count of perjury in connection with a separate civil judicial proceeding in violation of 18 U.S.C. Sec. 1623, and seven counts of laundering the proceeds of bankruptcy fraud in violation of 18 U.S.C. Secs. 1956(a)(1) and 1957. Thompson was sentenced to serve 65 months' imprisonment, followed by a three-year term of supervised release, and a total of $600 in special assessments.

On appeal, Thompson challenges both his conviction and sentence. Regarding his conviction, Thompson challenges the district court's denial of his motion to suppress the contents of a briefcase discovered during an inventory search of his automobile, claiming that the search violated his Fourth Amendment rights. In addition, Thompson contends that the prosecutor's improper comments in rebuttal summation deprived him of a fair trial. Regarding his sentence, Thompson claims that the district court erred in For the reasons set forth below, we affirm the district court's judgment.

declining to downwardly depart from the calculated Sentencing Guidelines range.

BACKGROUND

On March 5, 1990, an officer of the Ramapo, New York Police Department ("R.P.D.") arrested Thompson for driving while intoxicated shortly after Thompson drove away from his residence. The arresting officer detained Thompson based on information that the R.P.D. received from an undercover agent, who had observed Thompson at home in an intoxicated condition shortly before he began driving his car. At the time of his arrest, the R.P.D. was conducting an undercover investigation of Thompson for alleged sexual assault.

Following his arrest, Thompson's vehicle was impounded and subjected to an inventory search. Pursuant to R.P.D. regulations, a detailed inventory of the entire vehicle was conducted. During the course of the search, an officer examined the contents of a closed briefcase, which was unlocked with Thompson's key. The briefcase contained approximately $23,500 in cash, $15,000 in postal money orders, $200,000 in bank and teller checks, a metal plate facsimile of a Social Security card, and documents relating to various bank accounts maintained under a variety of names. After preparing an inventory report, the R.P.D. turned the contents over to the Federal Bureau of Investigation (the "FBI").

The FBI's investigation disclosed that Thompson, an attorney admitted to the bar in New York State, had filed for bankruptcy protection on January 22, 1990. Although Thompson claimed in his petition to have assets totalling only $1,500, the FBI's investigation revealed that during the pendency of his bankruptcy proceeding, Thompson concealed approximately $400,000 in assets from the Bankruptcy Court. The investigation further indicated that Thompson laundered much of that money through bank accounts he opened by using fictitious names, addresses, and Social Security numbers. On March 8, 1990, three days after the seizure of the briefcase, Thompson voluntarily dismissed his bankruptcy petition.

On June 6, 1991, an indictment was filed against Thompson concerning his alleged bankruptcy fraud. Ten days later, Thompson moved to suppress the contents of the briefcase seized from the trunk of his car. A suppression hearing was conducted, and on August 14, 1991, the district court denied Thompson's motion. A thirteen-count superseding indictment was filed against Thompson on October 29, 1991. Count One charged Thompson with knowing possession of a false Social Security card in violation of 18 U.S.C. Sec. 1028(a)(6), Counts Two through Four charged Thompson with bankruptcy fraud in violation of 18 U.S.C. Sec. 152, Count Five charged Thompson with making a false declaration in a proceeding before the United States District Court for the Southern District of New York in violation of 18 U.S.C. Sec. 1623, and Counts Six through Twelve charged Thompson with laundering the proceeds of a bankruptcy fraud in violation of 18 U.S.C. Secs. 1956(a)(1) and 1957. Count Thirteen charged that specific properties involved in or traceable to the money laundering violations set forth in Counts Six through Twelve were subject to forfeiture, pursuant to 18 U.S.C. Sec. 982.

During the course of a six-day jury trial, Thompson testified that neither the briefcase nor the bulk of the money in the bank accounts belonged to him. To demonstrate Thompson's lack of credibility, the Government adduced evidence that Thompson had submitted false statements or false testimony in six legal proceedings. Additionally, Thompson admitted to filing false court papers that resulted in his disbarment in New York State.

On summation, defense counsel suggested that Thompson had answered all the questions honestly, and stated, "He does not have the best background, ... but does that mean he's a liar?" In rebuttal summation, the prosecutor stated, "Earl Thompson is a man who has lied in every piece of sworn testimony he has ever given in any court proceeding. He lied on every sworn statement he has ever filed." After objection by defense counsel, the district court instructed the jury that Following the verdict, the Probation Department prepared a Presentence Report ("PSR") for Thompson which recommended a total offense level of 25 and criminal history category of II, resulting in a sentencing range of 63-78 months. At sentencing, the district court declined to grant Thompson's request for a downward departure, accepted the findings of the PSR, and sentenced Thompson to 65 months' imprisonment.

the attorneys' statements did not constitute evidence. The jury returned a guilty verdict on all counts.

Thompson now appeals.

DISCUSSION

On appeal, Thompson contests both his conviction and his sentence. We have examined Thompson's challenge to his sentence and find it to be meritless. We discuss only Thompson's challenges to his conviction.

(1) The Inventory Search

Thompson contends on appeal that the district court erred in denying his suppression motion because the inventory search was not conducted in good faith pursuant to a standardized procedure regulating the opening of closed containers. Thompson claims that the inventory search was a pretext to search for incriminating evidence. We disagree.

In examining a ruling on a motion to suppress, we review the district court's findings of adjudicative fact for clear error, and the district court's conclusions of law de novo. See United States v. Moore, 968 F.2d 216, 221 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992).

As a preliminary matter, Thompson challenges his arrest, claiming that the stop was a pretext for conducting an inventory search. The question of whether the stop was pretextual or not, however, is irrelevant to determining the arrest's validity. So long as the stop was lawful, the resulting arrest will not violate the Fourth Amendment. See United States v. Scopo, 19 F.3d 777, 784 (2d Cir.1994). In this case, we find that the stop was clearly authorized by law. Thompson's detention was based on the R.P.D.'s firsthand information from an undercover officer who alerted the R.P.D. that Thompson, who was visibly inebriated, planned to drive his automobile. Having received such information, it would have been irresponsible for the R.P.D. officer to allow Thompson to pose a threat to public safety by not stopping him. Accordingly, because the stop was lawful, the resulting arrest did not violate the Fourth Amendment. See id.

In addition to challenging his stop and arrest, Thompson challenges the inventory search itself on the grounds that the search was not conducted according to a valid procedure and was solely for the purpose of discovering incriminating evidence. Regarding the propriety of a search incident to an arrest, inventory searches of items lawfully obtained by the police fall within a well-defined exception to the Fourth Amendment's warrant requirements. See Colorado v. Bertine, 479 U.S. 367, 371-72, 107 S.Ct. 738, 740-41, 93 L.Ed.2d 739 (1987). Such searches are deemed reasonable...