United States v. Cangiano, 592-4
| Citation | 464 F.2d 320 |
| Decision Date | 26 June 1972 |
| Docket Number | 618-19,No. 592-4,Docket 71-2104-8.,592-4 |
| Parties | UNITED STATES of America, Appellee, v. Frank CANGIANO et al., Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Philip Vitello, New York City (Joseph L. Belvedere, Brooklyn, N.Y., and Henry J. Boitel, New York City, on the brief), for appellants Frank Cangiano, Cosmo Cangiano and Dominick Ariale.
Philip Brown, Brooklyn, N.Y., for appellants Thomas Gambardella and Anthony DeRamo.
James A. Pascarella and Ronald De-Petris, Asst. U. S. Attys., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., and David G. Trager, Asst. U. S. Atty., Brooklyn, N.Y., on the brief), for appellee.
Before FRIENDLY, Chief Judge, TIMBERS, Circuit Judge, and JAMESON,* District Judge.
These appeals call upon us to decide difficult questions under the First and Fourth Amendments arising in the context of a prosecution for transporting obscene materials in interstate commerce for the purpose of sale.
Appellants Frank Cangiano, Cosmo Cangiano, Ariale, Gambardella and De-Ramo appeal from judgments of conviction entered after a twelve day jury trial in the District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, finding them guilty of transporting obscene materials in interstate commerce for the purpose of sale and conspiring to do so, in violation of 18 U.S.C. §§ 1465 and 371 (1970).1 Their principal contentions on appeal relate to the legality of various searches and seizures conducted by the FBI in gathering evidence against appellants. The district court considered these claims and, after conducting a lengthy pre-trial suppression hearing, concluded that appellants' Fourth Amendment rights had not been violated. For the reasons stated below, we affirm.
A brief recitation of the events culminating in appellants' indictment is necessary to an understanding of our rulings on the claims raised on appeal.
In the latter part of 1968, three reliable informers told FBI Agent Monaghan that Frank and Cosmo Cangiano were engaged in a widespread pornography enterprise, placing large quantities of obscene materials in interstate commerce. Agent Monaghan was informed that the store located at 5309 New Utrecht Avenue in Brooklyn was being used in the operation of that enterprise. According to the informants, Frank and Cosmo Cangiano shipped the obscene materials by air freight in cardboard boxes or footlockers approximately one foot in cubic size and used fictitious consignors. The informants also told Monaghan that there were several buildings in the vicinity of 5309 New Utrecht which were used as warehouses for vast quantities of obscene books, magazines, decks of playing cards and reels of film. Moreover, in October of 1968, Agent Monaghan observed an individual whom he had arrested two months before on charges of interstate shipment of obscene materials leave the premises at 5309 New Utrecht Avenue.
The information provided by the informants was corroborated in part by a surveillance of 5309 New Utrecht instituted by FBI agents in January of 1969. During this period of surveillance, the agents regularly observed various individuals, including Frank and Cosmo Cangiano, Ariale and Gambardella, going in and out of the building carrying cardboard boxes similar to the ones described by the informants. On one occasion, agents followed Ariale to 4723 New Utrecht Avenue and filmed him as he entered and left the premises carrying footlockers. This building later proved to be a warehouse for the obscene materials.
On at least two occasions, agents saw appellant Gambardella deliver packages to the Emery Air Freight office at John F. Kennedy International Airport. The waybills accompanying the packages on both occasions designated the items being shipped as printed matter and bore the names and addresses of consignors whom the FBI checked and determined were fictitious. Agent Monaghan subsequently contacted officials at Emery Air Freight and advised them that the name and address of the consignor on the packages were fictitious and that he had reason to believe that the contents of the packages were other than as indicated by the "consignor". Acting on this information, an official of Emery Air Freight opened and inspected the packages. When the Emery official discovered that some of the packages contained reels of film, he requested, and was supplied by Agent Monaghan with, a movie projector. After viewing the films, the Emery official informed the agent that the packages contained obscene materials.
Relying on the informants' information, the surveillance of the premises at 5309 New Utrecht, the Emery official's inspection (and a similar inspection by officials of United Air Lines) and a reel of film purchased by one of the informants from Cosmo Cangiano and viewed by Commissioner Max Schiffman, Agent Monaghan secured arrest warrants for Frank and Cosmo Cangiano, Ariale and Gambardella and search warrants for 5309 and 4723 New Utrecht Avenue.
On February 6, 1969, agents entered 5309 New Utrecht and arrested Cosmo Cangiano, Ariale and Gambardella. The search of the premises uncovered invoices and purchase orders, telephone books, a list of names and telephone numbers, and a deck of obscene playing cards. A search also was conducted at 4723 New Utrecht. This building turned out to be a warehouse for obscene materials, including playing cards, magazines, photographs and reels of film.
Almost simultaneously, agents arrested Frank Cangiano at an apartment in Brooklyn. The agents searched the apartment and seized a large quantity of obscene materials, including playing cards, magazines, photographs, and reels of film, as well as a composition book and Emery Air Freight waybills.
Also on February 6, 1969, FBI agents in Pittsburgh arrested appellant De-Ramo on the premises of DeRamo Furniture Manufacturing Company. Acting pursuant to a search warrant secured largely on the basis of the Emery official's inspection of packages shipped from New York and addressed to De-Ramo, the agents seized four packages which bore Emery Air Freight identification numbers. An examination of the contents of these packages uncovered large quantities of obscene materials, including reels of film, decks of playing cards, photographs and magazines.
Appellants' first contention is that there was no probable cause for the various arrest and search warrants. Appellants essentially claim that these warrants were based in large measure on the inspections conducted by officials of Emery Air Freight and United Air Lines and that these inspections were so connected with governmental participation as to constitute federal searches which violated their Fourth Amendment rights. Since we hold that these inspections were not governmental searches within the protection of the Fourth Amendment, we do not decide whether the information provided by the three reliable informers and the agents' own observations supplied the requisite probable cause for the issuance of the warrants.
The facts surrounding the inspection by the Emery official are as follows.2 On February 4, 1969, Agent Monaghan advised officials at Emery Air Freight that he had reason to believe that several packages delivered by Gambardella and co-defendant Boccaccio to Emery for shipment contained matter other than as indicated by the consignor and that the name and address of the consignor on the packages were fictitious. A district manager of Emery then removed the packages to a conference room and opened them. The agents were not present when these packages were opened. The Emery official found that the packages contained magazines and reels of film. The official then requested and received a movie projector from the FBI and viewed the films. He then reported to Agent Monaghan that the films were obscene. The packages were then resealed and forwarded to their destinations. One such destination was the DeRamo Furniture Manufacturing Company in Pittsburgh.
The district court's conclusion that this inspection was not so infused with governmental participation as to constitute a federal search is amply supported by the record. As the court found, "the government agents did not say what they thought the contents were, did not request the inspection, were not present, and did not participate in the inspection." Moreover, by examining the contents of the packages, Emery was merely acting in accordance with well established regulations. Item 24 of the Official Air Freight Rules, Tariff No. 1-B, provides that "all shipments are subject to inspection by the carrier, but the carrier shall not be obligated to perform such inspection." Furthermore, Tariff No. 2 of the Rules and Regulations of the Emery Air Freight Corporation provides that "all shipments are subject to inspection by the Forwarder." The inspection therefore was conducted by private officials pursuant to their duty as common carriers to insure that the packages did not present a danger. It would have been irresponsible for the Emery official not to have inspected the packages when confronted with reliable information that the contents were mislabeled and that the name and address of the consignor were fictitious.3 Thus, while the initial stimulus to inspect came from the FBI and Emery undoubtedly did not wish to incur disfavor, Emery had its own reasons for examining the contents of the packages.
We dealt with a similar situation in United States v. Blum, 329 F.2d 49 (2 Cir.), cert. denied, 377 U.S. 993 (1964), where we held that an inspection by a carrier was not a government search. There the initial suspicion came from the carrier, but aside from the fact that the stimulus to inspect in the instant case came from the FBI, the extent of governmental participation in Blum was greater than the federal participation in the instant inspection. Indeed, the search itself was conducted by government...
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