U.S. v. Zabare, 222

Citation871 F.2d 282
Decision Date27 March 1989
Docket NumberD,No. 222,222
PartiesUNITED STATES of America, Appellee, v. Isaac ZABARE, a/k/a "The Rabbi", Defendant-Appellant. ocket 88-1076.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael Young, New York City, for defendant-appellant.

Kenneth J. Vianale, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Linda Imes, Asst. U.S. Atty. for S.D.N.Y., New York City, of counsel), for appellee.

Before VAN GRAAFEILAND, CARDAMONE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, after a three-day bench trial before Judge Charles S. Haight, Jr. Appellant Isaac Zabare was convicted of conspiring to deal in stolen goods in interstate commerce, in violation of 18 U.S.C. Sec. 371; he was sentenced to three years' probation. Zabare contends, inter alia, that the evidence of his participation in the conspiracy charged was insufficient to support his conviction. Zabare also asserts that the district court improperly admitted physical evidence seized from his apartment at the time of his arrest, and post-arrest statements obtained from him, because the FBI agents who arrested him and searched his apartment had neither a warrant nor justification to do so.

Although the facts of this case present a close question on the sufficiency issue, we agree with the district court that the single transaction in which Zabare engaged was sufficient to support Zabare's conviction on the conspiracy charge. We also agree with the district court that there were "exigent circumstances" which justified the warrantless arrest of Zabare and the search of his home. Accordingly, we hold that it was not error to admit the evidence seized from Zabare's home and statements Zabare made at the time of his arrest. The judgment of conviction is therefore affirmed.

BACKGROUND

During the summer of 1983, the Federal Bureau of Investigation ("FBI") began an undercover sting operation in New York to apprehend persons who were obtaining and selling counterfeit and stolen tickets to public amusement events. The government's investigation focused on Richard Folch, who headed a conspiracy to distribute large numbers of counterfeit or stolen Ticketron tickets. Ticketron is a corporation engaged in the business of printing and selling tickets to the public for sports and entertainment events.

During the summer months of 1983, two undercover FBI agents, Dale Hackbart and Stuart Sturm, posed respectively as a "wheeler-dealer" and a "crooked employee" of Ticketron. One of Richard Folch's associates, Raymond Rosenthal, who was a confidential informant working with the FBI, arranged a meeting between Folch, Hackbart, and Sturm which took place on July 20, 1983. At that meeting, Hackbart presented Folch with an opportunity to acquire a large quantity of blank Ticketron tickets which Sturm had allegedly stolen from his employer. Folch offered to buy the "stolen" Ticketron tickets from Hackbart and Sturm. He informed the agents that he planned either to resell the tickets in blank form or to take them to a printer who would print specific information on them, after which he would sell the printed tickets to the public either directly or through ticket "scalpers." Folch also explained that he belonged to a group of about twelve to fifteen people who travelled around the country selling counterfeit tickets, that he had been doing this for quite a while, and that this was his sole source of income. After the meeting, Folch contacted his principal co-conspirator, a man by the name of Howard Sieger, to tell him that he had "a way of obtaining blank Ticketron tickets from Ticketron."

On July 22, 1983, Ticketron supplied Agent Hackbart with three boxes of blank Ticketron tickets for use in the sting operation, and three days later, Hackbart met with Folch at a Manhattan restaurant to tell him that the blank tickets were ready. Folch responded that he had scheduled a number of meetings with "his customers" for later that day to resell the tickets, as planned. Folch then gave Hackbart $1,000 as "good faith money for the business transactions later in the day." He also informed Hackbart that he was expecting someone known as "Tonto" to arrive shortly to purchase tickets from Folch at the restaurant.

When Tonto failed to appear at the restaurant, Folch left to go and look for him.

Although Folch was unable to locate Tonto during his search, he did meet the defendant Adolph Lindsay. Folch offered to sell Lindsay 800 tickets at two dollars apiece. Lindsay responded that he did not have enough money to buy the tickets himself, but that he could probably find a buyer for them. Folch agreed to pay Lindsay $200 as a "finder's fee," and Lindsay thereafter produced an individual named Mozelle Brown.

Folch brought Lindsay and Brown to meet Hackbart at an unspecified location in Manhattan near Madison Square Garden, at which point Folch announced: "These are the fellows who are going to buy the tickets." At Folch's direction, Hackbart removed a sealed bundle of 800 Ticketron tickets from his car and then waited for the transaction between Folch and Brown to conclude. After Brown had paid Folch $1600 in cash, Folch directed Hackbart to hand over the tickets to Brown, and then Folch paid Hackbart $400 for the tickets. Folch also paid Lindsay his finder's fee. Lindsay and Brown left and were arrested by agents shortly thereafter.

Later that day, after parting company with Hackbart, Folch discovered that Lindsay and Brown had been arrested. Folch immediately returned to the Manhattan restaurant, where he had arranged to meet Hackbart that afternoon, and told Hackbart about the arrests. Folch was very agitated by the news, but Hackbart calmed him by telling him that the arrests had been made not by FBI agents but by Ticketron's security personnel and New York City police. Folch apparently believed Hackbart, and the distribution of the balance of the "stolen" tickets proceeded. Folch, Hackbart, and Rosenthal, the confidential informant, drove to the home of appellant Isaac Zabare in Brooklyn, New York.

According to Folch's later testimony, Folch had met Isaac Zabare once, about two years earlier, outside of Madison Square Garden, and he knew Zabare to be a ticket scalper. Although Folch had not done business with Zabare previously, Folch called Zabare during the week preceding these events, told him he was "going to get a shipment of blank tickets," and asked Zabare if he wanted any of the Ticketron tickets. Zabare replied in the affirmative. Thereafter, the two men spoke at least twice on the phone to negotiate the terms of the sale, and it was agreed that Zabare would purchase about 5,000 tickets from Folch.

When the three men arrived at Zabare's residence with the tickets, Hackbart gave them to Folch, and then Folch and Rosenthal delivered a total of 6,400 tickets to Zabare in his second-floor apartment. The tickets were delivered in two installments of 3,200 each, with delivery of the second batch occurring ten to fifteen minutes after delivery of the first. Later, the evidence revealed that Zabare paid Folch a total of $9,600--$4,250 for the first 3,200 tickets and $5,350 for the second 3,200 tickets. Folch in turn paid $3,200 of that amount to Hackbart.

Soon after Folch, Rosenthal, and Hackbart left Zabare's home, Zabare was arrested by three FBI agents. The circumstances surrounding Zabare's arrest were as follows. Shortly after Folch and Rosenthal left Zabare's apartment, the FBI agents gained entry to his apartment by ruse, claiming that they were checking Zabare's apartment for leaky plumbing. The agents had neither an arrest warrant nor a search warrant. The agents, who had been waiting in a stairwell while the ticket sale took place, only approached Zabare's apartment when they believed that the transaction with Folch and Rosenthal had been completed. Upon entering, they handcuffed Zabare, informed him of his rights, and then searched him. The agents seized money and tickets from Zabare's pockets. They also seized $200 from a table in the living room. They then requested that appellant give them the Ticketron tickets, stating that, if need be, they would get a search warrant and search the apartment for the tickets. Appellant thereupon took one of the agents into his bedroom, located the tickets, and gave them to the agent. Appellant was driven to FBI headquarters, and his statement was taken. Zabare told the agents, among other things, that he A one-count indictment was filed and the case was assigned to Judge Haight. The indictment charged Isaac Zabare, Richard Folch, Howard Sieger, Adolph Lindsay, and Mozelle Brown with conspiring to receive stolen property in violation of 18 U.S.C. Sec. 371. Judge Haight severed appellant's trial from that of his co-defendants, to allow for a psychiatric examination of Zabare. Richard Folch pleaded guilty to the conspiracy charge; Howard Sieger was convicted; and Adolph Lindsay and Mozelle Brown were acquitted of the conspiracy charge after a two-day bench trial before Judge Haight. This Court affirmed Sieger's conviction by memorandum order dated March 13, 1986. United States v. Sieger, No. 85-1354 (2d Cir. March 13, 1986).

had had no previous business dealings with Folch, and that he had been "self-employed" as a "ticket scalper" for the previous four years.

Zabare waived his right to a jury trial and was tried before Judge Haight. By stipulation, the record of the 1984 trial of Zabare's co-defendants was made part of the record in Zabare's trial. Judge Haight found appellant Zabare guilty of conspiring to receive stolen property and filed a memorandum opinion dated September 17, 1986. Thereafter, Zabare was sentenced to three years' probation and required to perform two hundred hours of community service.

DISCUSSION

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