United States v. Ferrone

• Decision Date: 17 February 1971
• Docket Number: No. 18777.,18777.
• Citation: 438 F.2d 381
• Parties: UNITED STATES of America v. Augustine FERRONE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

438 F.2d 381 (1971)

UNITED STATES of America v. Augustine FERRONE, Appellant.

No. 18777.

United States Court of Appeals, Third Circuit.

Argued November 5, 1970.

Decided February 17, 1971.

Samuel J. Reich, Cooper, Schwartz, Diamond & Reich, Pittsburgh, Pa., for appellant.

Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa. (Douglas D. McBroom, Asst. U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Appellant was indicted on November 15, 1967 by a federal grand jury on three counts charging him with forcibly assaulting, resisting and opposing agents of the Internal Revenue Service in the performance of their official duties¹ and four additional counts charging violations of the federal Wagering Tax laws.² Following the Supreme Court's decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), the government abandoned its case on the four latter counts. Appellant was convicted by a jury on all three assault and resistance counts on January 20, 1970. This appeal followed.

I

The alleged assaults and resistance took place on May 5, 1967 while three agents of the Internal Revenue Service (IRS) were attempting to execute two search warrants, one for appellant's apartment, the other (a "John Doe" warrant) for his person. These searches were part of a larger investigation of gambling activity in the Pittsburgh area. The warrants in question were issued by the United States Commissioner on the basis of a twenty-four page "master affidavit," signed by an IRS Special Agent, which served as the basis for warrants for several other locations as well. The affidavit recited that the IRS had obtained through civil summonses³ telephone company toll slips which showed the destinations of calls placed on phones registered at the approximately fourteen locations under suspicion. This data, covering a period of six months and set out at length in the affidavit, showed a pattern of frequent communication among certain telephones in the Pittsburgh area. Most of those phones were registered in the names of persons with a history of gambling offenses. The agents did not know appellant's identity until after the search warrants were executed and he was in custody. Thus, the two pages of the affidavit dealing specifically with appellant's apartment begin "XII. XXX-XXX-XXXX (Subscribed to by Mrs. F. Lancer (a fictitious name), Apt. 4-C, 1806 Patricia Lane XXX-XXX-XXXX East McKeesport, Pennsylvania)." There followed telephone data on incoming and outgoing calls which linked appellant's phone to phones at three other suspected locations.⁴ The affidavit went on to say:

On November 15, 1966, a confidential informant whom Special Agent Vernon B. Carpenter regards as unquestionably reliable with regards (sic) to wagering and bookmaking operations and information told Special Agent Carpenter that an unidentified white male was accepting a lot of sporting bets on telephone #824-5450 (one of appellant\'s phones). On May 2, 1967, this same confidential informant stated that an unidentified white male of Italian descent was still engaged in accepting a lot of sporting bets on telephone #824-5450. This confidential informant has supplied Special Agent Carpenter with considerable information in the past relative to wagering operation which has proven to be reliable and accurate.

At approximately 3:05 P.M., on April 28, 1967, Special Agent John J. Kish observed a white male with black wavy hair and stocky build looking out the window of Apt. 4-C, 1806 Patricia Lane, East McKeesport, Pennsylvania. At 3:50 P.M., Special Agent Kish observed the aforementioned white male sitting in Apt. 4-C and talking on the telephone.

Special Agents Kish, Martin, and Ziemba were assigned to execute the warrants. They arrived outside appellant's apartment at 1:15 P.M., Agents Kish and Martin knocked on the apartment door at 1:30 P.M., identified themselves in a loud voice, and stated their purpose. By pre-arrangement, Agent Ziemba remained outside looking in the bedroom window. The door was not answered promptly. Following a futile attempt by Agent Martin to break down the door, it was opened by Sally Yenchi, a friend of the Ferrones. Immediately upon entering, Kish and Martin heard a toilet flush. They rushed to the bathroom where they saw appellant standing over the toilet. The agents brushed him aside, and Agent Martin retrieved two baseball "line sheets" from the toilet bowl.

Appellant was then confronted by the two agents in the hallway outside the bathroom. Agent Kish, the spokesman, identified himself and Martin as IRS special agents and displayed his badge. Agent Martin was wearing his badge on his breast pocket. Kish did not show his credentials, however, since he did not have them in his possession. Appellant seemed excited and angry and was yelling at the top of his voice. Finally, in response to Kish's repeated statements that he had warrants, appellant said, "Where are the warrants? I want to see the warrants." Kish left appellant's presence to procure the warrants from his briefcase in the living room. While Kish was gone, appellant went to the bedroom, where the phones were located. Agent Martin followed him. Agent Ziemba observed this movement, entered the apartment, and went to the bedroom. Agent Kish then entered the bedroom with the John Doe warrant. The appellant asked permission to call his attorney. Kish replied that he could call his attorney after the search warrant was read.

As Agent Kish began to read the warrant, appellant grabbed it from his hand, crumpled it and threw it to the floor, pushing Agent Kish in the process. Appellant then turned and lunged at Agent Martin in an apparent attempt to reach the telephone or the telephone wires. Appellant and Agent Martin grappled on the floor. In the struggle, appellant pulled at the wires leading from the wall transformer to the telephones. Agent Ziemba pulled in the opposite direction.⁵ Agent Kish joined in the struggle to subdue the appellant. During the struggle, the appellant kicked and elbowed all three agents. He was finally subdued by Agent Kish who struck him two blows on the head with his blackjack.

Appellant was then handcuffed and taken to the kitchen, where he had to be restrained once again as he tugged at a wall-phone extension located there. While the agents and appellant were in the kitchen, the phone rang several times. Agent Ziemba answered the phone. Each time he picked up the receiver, appellant shouted, "Don't tell them anything. I have been hit. I have been hit."

Eventually, both search warrants were executed and certain items relating to wagering activities were seized. Soon thereafter, the local police arrived, having been summoned either by appellant's wife or Sally Yenchi.⁶ Later still, the appellant was placed under arrest for forcibly resisting and assaulting the agents.

Testifying in his own behalf, appellant admitted he was engaged in wagering activities. At the time of the raid, his wife told him there were Internal Revenue Agents at the door. He tried to dispose of the line sheets in the toilet because he "didn't want to embarrass anybody." He testified that certain things about the agents caused him to suspect that they might be robbers — their manner of dress,⁷ that Agent Kish had no credentials, the way Agent Kish put him off when he asked to call his attorney, and the suspicious nature of a "John Doe" warrant. He further testified that the struggle began when he attempted to reach the telephone to call for help and that it was not until he was recuperating on the couch from his blackjack wounds and observed that he was handcuffed that he came to the conclusion that these men actually were law enforcement officers.

II

Appellant first assigns as error that he was unfairly prejudiced by the opening remarks of the prosecuting attorney and by the admission of the testimony of Special Agent Carpenter, who was in charge of the entire investigation. In each instance, appellant complains of references to his being involved in a "large-scale interstate wagering operation."⁸

In evaluating this contention, we must first decide whether admission of any evidence of appellant's gambling activities was proper. We hold that it was. That the agent be engaged "in or on account of the performance of his official duties" is an essential element of the offense for which the appellant was convicted.⁹ Thus, it was proper for the prosecution to introduce evidence showing that the agents were engaged in the performance of IRS duties in searching the appellant's home and person.¹⁰ It would appear, however, that the references to Las Vegas and interstate gambling activities, both in the prosecutor's remarks and Agent Carpenter's testimony, were unnecessary for this purpose. We are not convinced, however, that they were prejudicial.

In the first place, appellant freely admitted that he was engaged in gambling activity. It is difficult to see how the jury could have been influenced in any significant way by added references to the interstate overtones of the investigation. Secondly, even if this testimony and the prosecutor's remarks had been entirely excluded, we do not believe the jury could have reached any other conclusion as to the appellant's guilt. Appellant contends that this was a very close case on its facts. Based on our own careful reading of the record, we disagree. His principal defense was that he acted under the misapprehension that these agents were robbers, not lawmen. His behavior, at the time, however, was inconsistent with his present posture. He crumpled the warrant and threw it to the floor. He attempted to pull the phones out of the wall. He also yelled warnings to callers whenever Agent Ziemba picked up a ringing phone. Each of these...