United States v. Bell

• Decision Date: 05 July 1972
• Docket Number: Docket 72-1322.,No. 830,830
• Parties: UNITED STATES of America, Appellee, v. Henry BELL, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

464 F.2d 667 (1972)

UNITED STATES of America, Appellee, v. Henry BELL, Appellant.

No. 830, Docket 72-1322.

United States Court of Appeals, Second Circuit.

Argued June 6, 1972.

Decided July 5, 1972.

Michael Young, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for appellant.

Paul B. Bergman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for the E. D. N. Y., David G. Trager, Asst. U. S. Atty., of counsel), for appellee.

Before FRIENDLY, Chief Judge, and MANSFIELD and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York (Mark A. Costantino, J.) dated December 3, 1971 which convicted the appellant of failure to pay a tax on narcotics in violation of 26 U.S.C. § 4724(c).¹ Judgment affirmed.

On the morning of November 28, 1970 the appellant Henry Bell entered La Guardia Airport and purchased a ticket on Eastern Airlines Flight 101 to Atlanta, Georgia. The ticket seller, Mr. Ralph Whitfield, who had been employed by Eastern Airlines for eight years, was familiar with an antihijacking system which had been developed to identify potential skyjackers. Bell and the circumstances of his ticket purchase fell within the criteria of a "hijacker profile" developed by the Federal Aviation Administration in cooperation with the commercial airlines. He was therefore designated as a "selectee" by Whitfield and his ticket was given to him in an envelope which would identify him at the flight gate as a person who fell within the category of potential hijackers. The ramp ticket agent at Gate 34, the scheduled boarding point for Flight 101, was notified that one of the passengers had been designated as a selectee and a United States Marshal, John Walsh, was summoned. When Bell arrived at Gate 34, James Demeloitz, the ramp ticket agent, checked his ticket and envelope. As the passengers left the lounge to walk through the jetway which led into the plane, they all passed between two metal poles set about 30 to 36 inches apart. This device known as a magnetometer is designed to detect the presence of metal objects on the person of an embarking passenger. When Bell passed through, the device was activated indicating the presence of metal on his person. Demeloitz then approached Bell, advised him that he had set off the device and requested his ticket as well as identification. United States Deputy Marshal Walsh who was standing next to Demeloitz requested Bell to pass through the magnetometer a second time. Bell complied and again the device registered. Walsh then repeated the request for identification. Bell responded that he had just been released from the Tombs and that he was out on bail for attempted murder and narcotics charges. Walsh identified himself as a Deputy Marshal assigned to the air piracy program and advised Bell that he apparently had some metal on his person. He asked Bell if he minded being "patted down" and the appellant responded "Certainly not." Walsh proceeded behind the closed door of the jetway to pat down Bell from chest to hips and felt hard objects about 4 to 5 inches long in his raincoat pockets. Bell described the objects as candy for his mother and agreed to take one out of his pocket. It was a brown paper bag which he again described as candy for his mother but which when opened at Walsh's request, was seen to contain glassine envelopes which Walsh believed to contain narcotics. Bell was then arrested and a search thereafter revealed that the bulge in the other pocket was a similar bag. A field check at the airport revealed that the 600 glassine envelopes in the bags contained heroin.

At the pretrial suppression hearing, the government produced ticket agents Whitfield and Demeloitz and Deputy Marshal Walsh as well as Mr. Fred Trommsdorff, airport passenger service manager at La Guardia Airport at the time of this incident, and Michael A. Pizzi, a Deputy United States Marshal who was in charge of the federal antihijacking program at both La Guardia and Kennedy airports. Over the objection of counsel for the defendant, Judge Costantino granted the government's motion to hear the testimony of ticket agent Whitfield at an in camera proceeding from which the defendant and the public were excluded. Counsel for defendant was permitted to remain and take part in the proceedings. This procedure had been previously utilized by Judge Weinstein in the Eastern District of New York, United States v. Lopez, 328 F.Supp. 1077 (1971), in which trial counsel for defendant here had also appeared for Lopez. In that case, although the in camera procedure was found to be constitutional, the indictment was dismissed for other reasons so that the constitutional issues raised by the appeal here are before this court for the first time.

I

Appellant argues that his fifth and sixth amendment constitutional rights were infringed by the in camera procedure employed below. Specifically, he urges that he was denied the right to confront the witnesses against him, to the effective assistance of counsel and to the right to a public trial.

The government's justification for the barring of the public and the defendant, while permitting his counsel to participate, is based upon the compelling urgency of protecting the confidentiality of the profile which has been devised as a method to reduce the threat of hijacking. We need no citation of authority or statistics to establish that domestic and international hijacking of airplanes poses a continuing hazard to public travel. Human life and property have been jeopardized by the mentally ill, the political terrorist and the criminal extortioner who have in recent years discovered that an airplane in flight, despite all of its engineering sophistication, is a uniquely fragile and vulnerable target when a passenger or crew member is threatened by a weapon or an explosive. This escalating criminal phenomenon of our times has stirred public apprehension and official concern. The Federal Aviation Administration in conjunction with other federal agencies conducted studies essentially based on the characteristics of those who had engaged in such ventures before. A list of criteria was compiled based upon the characteristics of the hijacker and the circumstances of his ticket purchase. The profile so constructed based on scientific, sociological and psychological data can be readily and objectively employed by the ticket seller without requiring any subjective interpolation. The profile, according to sizeable samplings, selects less than 1% of the passengers as possible hijackers.² Bell was the only selectee on the flight in question.

This appeal was argued in a courtroom which was cleared of spectators and limited to counsel. The profile was disclosed and this court is fully persuaded that it would not only be possible but relatively simple for a prospective hijacker to avoid the initial designation were any of the norms employed to become generally known. It is not only highly desirable but essential, if the profile system is to continue, that it be kept confidential. While this premise may be unquestioned, it is of course only prelude to the issue as to whether or not the in camera proceeding infringed the appellant's rights.

Barring the public including the press from the suppression hearing in this case presents no great constitutional difficulty. While secret proceedings are of course odious and smack of ideologies as repugnant to the Founders as they are today, there is precedent for the proposition that limited exceptions are constitutionally permissible. Thus the exclusion of the public in whole or in part has been found constitutionally acceptable where it was deemed necessary to protect the defendant, Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), where there has been harassment of witnesses, United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969), cert. denied, 397 U.S. 957, 90 S. Ct. 947, 25 L.Ed.2d 141 (1970), or to preserve order, United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied, 384 U.S. 1008, 86 S. Ct. 1961, 16 L.Ed.2d 1021 (1966). The justification for the limited exclusion here in our view, protection of the air travelling public, presents at least as substantial a consideration as those which prompted the previously recognized exceptions.

The claim that Bell was denied the sixth amendment right "to be confronted with the witnesses against him" is of more substance but on analysis is not supportable. The scope of the sixth amendment right of confrontation has not yet been precisely defined and Mr. Justice Harlan, in his typically scholarly concurrence in California v. Green, 399 U.S. 149, 174, 90 S.Ct. 1930, 1943, 26 L. Ed.2d 489 (1970), has commented that history gives us "very little insight into the intended scope of the Sixth Amendment Confrontation Clause." However, the Supreme Court in Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895) did note:

"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."

We are mindful here that Whitfield, the only witness examined out of the presence of the defendant Bell, testified under oath in the presence of the trial judge who was the finder of the facts at the suppression...