U.S. v. Scarfo

• Citation: 685 F.2d 842
• Decision Date: 22 July 1982
• Docket Number: No. 81-2181,81-2181
• Parties: UNITED STATES of America v. Nicodemo SCARFO, a/k/a Nicholas Scarfo, a/k/a Nicholas Scarto. Appeal of Nicodemo SCARFO.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 842

685 F.2d 842

UNITED STATES of America v. Nicodemo SCARFO, a/k/a Nicholas Scarfo, a/k/a Nicholas Scarto.

Appeal of Nicodemo SCARFO.

No. 81-2181.

United States Court of Appeals, Third Circuit.

Argued March 30, 1982.

Decided July 22, 1982.

Pamela W. Higgins (argued), Higgins & Madden, Robert F. Simone, Philadelphia, Pa., for appellant.

W. Hunt Dumont, U. S. Atty., Robert P. LaRusso, Sp. Asst. U. S. Atty. (argued), Maryanne Trump Desmond, Executive Asst. U. S. Atty., Newark, N.J., for appellee.

OPINION OF THE COURT

Before GIBBONS, SLOVITER and BECKER, Circuit Judges.

SLOVITER, Circuit Judge.

Defendant, Nicodemo Scarfo, appeals from the judgment of conviction and sentence imposed following his conviction under 18 U.S.C. App. § 1202(a) ¹ 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 ² 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. ³

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. 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, ⁴ 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, 91 S.Ct. 2022, 2037-42, 29 L.Ed.2d 564 (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, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (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, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (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, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (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, 94 S.Ct. 49, 38 L.Ed.2d 62 (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...