U.S. v. Caming

• Decision Date: 29 June 1992
• Docket Number: No. 1569,D,1569
• Citation: 968 F.2d 232
• Parties: UNITED STATES of America, Appellee, v. Stanley CAMING, Defendant-Appellant. ocket 92-1043.
• Court: U.S. Court of Appeals — Second Circuit

Page 232

968 F.2d 232

UNITED STATES of America, Appellee, v. Stanley CAMING, Defendant-Appellant.

No. 1569, Docket 92-1043.

United States Court of Appeals Second Circuit.

Argued May 19, 1992.

Decided June 29, 1992.

David A. Cutner, New York City (Clifford A. Rathkopf, Jr. and Debra I. Harris of counsel), for defendant-appellant Stanley Caming.

Robert E. Rice, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., Bruce G. Ohr and Michele Hirshman, Asst. U.S. Attys., of counsel), for appellee U.S.

Before: PRATT, FRIEDMAN, ^* and ALTIMARI, Circuit Judges.

FRIEDMAN, Circuit Judge:

In this appeal from his conviction for structuring currency transactions, the appellant contends that the district court erroneously (1) denied his pretrial motion to suppress evidence, (2) denied him a fair trial through certain evidentiary rulings, (3) instructed the jury concerning an element of the offense, and (4) calculated his sentence under the Sentencing Guidelines. We reject all these contentions and affirm the conviction and sentence.

I

After a jury trial in the United States District Court for the Southern District of New York, the appellant Caming was convicted (on two counts) of (1) structuring currency transactions to avoid currency transaction reports, in violation of 31 U.S.C. §§ 5322(b) and 5324(3), and (2) causing and attempting to cause financial institutions to fail to file currency transaction reports in violation of 31 U.S.C. §§ 5322(b) and 5324(1). He was sentenced to 24 months in prison, followed by two years of supervised release, and the mandatory $100 assessment was imposed.

The evidence supporting the jury verdict, the sufficiency of which is not challenged, shows that over a 16-month period Caming structured more than $700,000 in cash transactions to avoid the requirement of 31 U.S.C. § 5313(a) that financial institutions report all currency transactions of more than $10,000. During that period, he made more than eighty separate cash deposits, totalling $675,000, into nine accounts he opened in real or fictitious names at six banks in New York City. Caming used false Social Security numbers for these fictitious accounts and opened a post office box, to which he held the key, in one of those fictitious names.

All of these deposits were for less than $10,000, but frequently for more than $9,000. On occasion Caming made multiple deposits, each for less than $10,000, but which totalled more than $10,000, on the same day. During this period, he also made five withdrawals from these accounts, each for between $9,000 and $10,000.

The government's proof included numerous financial records, bank deposit slips and other bank records, and testimony. A teller and a bank manager testified that Caming attempted on one occasion simultaneously to make two cash deposits that together amounted to more than $10,000, and that he left without making the deposits when he was told that the bank would have to file a currency transaction report based on the transactions. Two bank managers testified that signs informing bank customers of the $10,000 currency transaction reporting requirement and the criminal penalties for structuring a transaction to avoid those requirements were displayed at the branch during the period when Caming was depositing funds into the accounts. These witnesses further testified that a sign that Caming was looking at in two bank surveillance photographs was such a sign. The government also introduced bank surveillance photographs of Caming conducting transactions at a particular bank, the dates and times of which coincided with the dates and times that he made deposits into several accounts there.

II

Caming contends that the district court improperly denied his pretrial motion to suppress evidence seized from his automobile upon and shortly following his arrest while driving. According to Caming, the government delayed arresting him to enable it to seize evidence from his automobile. The district court correctly rejected this contention. Although Caming requested an evidentiary hearing on his motion to suppress, the district court denied the request because the court found that "the material facts are not in dispute."

A. The facts relating to Caming's arrest, as set forth in uncontradicted affidavits of Stephen D. Pinzino, the Internal Revenue Service agent in charge of the investigation, and of Caming, are as follows:

On Friday afternoon, Pinzino obtained a warrant to arrest Caming. At approximately 5:00 a.m., the following Monday, Pinzino and three other agents of the Internal Revenue Service stationed themselves outside of the apartment building in Manhattan where Caming lived. The agents decided to try to arrest him when he left the building. They made that decision because (1) the agents were unfamiliar with Caming's apartment, (2) it is safer to make an arrest in an open area than in an apartment and (3) during their surveillance of Caming, they had observed his wife, "who appeared frail and not in good health" and who they believed "would have had great difficulty watching her husband's arrest."

After waiting approximately three-and-a-half hours, during which Caming did not appear, the agents checked the garage in the building and discovered that his car was not there. The agents then proceeded to an athletic club in Brooklyn, where they had surveilled him "on numerous occasions," and saw his car in the club's parking lot. The district court noted that, according to an affidavit by Caming's counsel, the club's owner "was also a target of the investigation."

Since the use of the parking lot was limited to club members, "in order to avoid detection and not arouse suspicion," the agents, in two automobiles, "staked out positions on side streets outside the club." When Caming drove out of the parking lot, the agents "pulled our cars out" and blocked Caming's car approximately 100 feet from the parking lot exit.

The agents ordered Caming out of the car and arrested him. A search of the automobile disclosed various financial documents, business records and other items, located on the front seat, in the glove compartment, and inside the driver's sun visor. The next day, during an inventory of the automobile, additional documents were discovered under the front passenger seat and in the trunk. The prosecution introduced some of these items into evidence.

B. In denying the motion to suppress, the district court, 756 F.Supp. 121, announced and applied the following legal standard:

When a police officer has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle.... Where, however, it appears that the search and not the arrest was the real purpose in effecting a warrantless search of the premises, "and that the arrest was a pretext for or at most an incident of the search," the search is unreasonable under the Fourth Amendment. [Citations omitted.]

The court ruled that Caming

presents no evidence that the Agents contrived to arrest defendant in his car so as to conduct a pretextual warrantless search of the vehicle. Here, the Agents surveilled defendant's Manhattan apartment building for three and one-half hours, from 5:00 a.m. to 8:30 a.m., in an attempt to arrest defendant as he exited the building. Only when this attempt proved unsuccessful did the Agents search for defendant elsewhere. [Footnote omitted.]

The court stated that "the record indicates no improper purpose" in the agents having "waited for defendant to enter his car and begin to drive away" from the athletic club. "Special Agent Pinzino stated that the agents' motivation was 'to avoid detection and not arouse suspicion.' "

The court then stated In light of the circumstances of the arrest, which occurred between 10:00 a.m. and 10:30 a.m. on a business day, and defendant's statement that the Club's parking lot holds "about 150 cars," Caming Aff. p 3, Special Agent Pinzino's explanation is entirely credible. Common sense dictates that on a morning during the work-week, a tennis club parking lot is not apt to be full since the majority of patrons would normally be engaged in their regular employment; more likely, such a lot would be closer to empty. The Court accordingly finds that since Arnold Marshel, the Club's owner, was apparently a target of the investigation, the Special Agents' decision not to stake out positions within the Club's parking lot, where their presence would likely be conspicuous, and to arrest defendant as he exited the Club's parking lot, indicates nothing more than Agents' sound exercise of judgment in the execution of an arrest warrant.

The record fails to suggest that the Agents, by deliberately waiting to arrest defendant as he exited the Club, improperly manipulated the situation in order to conduct a search of defendant's vehicle.

C. We agree with the district court that Caming has not shown that his arrest was a pretext to enable the agents to search his car. As the district court noted, the agents originally intended to arrest Caming when he left his apartment house. It was only after waiting three-and-a-half hours that they discovered his car was not in the apartment house garage. The agents' decision not to wait for him in the club's parking lot where, at that time of day, they would have been conspicuous and could have alerted the club owner, who apparently was also under investigation, was reasonable. The agents quickly stopped Caming's car as soon as it had left the parking lot and immediately executed the arrest warrant.

Indeed, if the agents' purpose in arresting Caming had been to seek evidence, presumably they would have arrested him earlier in the morning at his apartment. That was a much more likely place for him to have kept records relating to his currency structuring activities than the glove compartment, seat, or visor of his automobile.

The...