U.S. v. Farnkoff, 74-1437

• Citation: 535 F.2d 661
• Decision Date: 12 May 1976
• Docket Number: No. 74-1437,74-1437
• Parties: UNITED STATES of America, Appellee, v. George H. FARNKOFF, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 661

535 F.2d 661

UNITED STATES of America, Appellee, v. George H. FARNKOFF, Jr., Defendant-Appellant.

No. 74-1437.

United States Court of Appeals First Circuit.

Argued Jan. 5, 1976.

Decided May 12, 1976.

Albert H. Russell, Jr., Waltham, Mass., with whom Alfred Paul Farese, Farese, Farese & Chambers, Everett, Mass., was on brief, for defendant-appellant.

Paul E. Troy, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

Appellant was indicted on one count charging him with possession of property valued over $100 stolen from an interstate shipment, in violation of 18 U.S.C. § 659. ¹ He was found guilty after a jury trial, and this appeal followed. He assigns as error the following actions of the trial court: (1) the denial on procedural grounds of a motion to suppress; (2) the denial (on the merits) of a separate motion to suppress; (3) the failure to grant his motion for judgment of acquittal; (4) an allegedly improper instruction on the recent theft doctrine; and (5) the failure to declare a mistrial because of allegedly improper prosecutorial remarks. We discuss each of these contentions in order.

I. The Untimely Motion to Suppress

In the course of the trial, appellant moved to suppress all the evidence obtained from a warehouse at 143 Addison Street ² in East Boston. ³ The evidence was obtained pursuant to a search warrant, and it was the adequacy of that warrant which appellant questioned in his motion to suppress. ⁴ The district court denied this motion on the ground that it was not filed prior to trial. Appellant argues, on the basis of a literal reading of the Federal Rules of Criminal Procedure in force at the time of his trial (November 1974), that he was not required to file such a motion prior to trial.

In order to evaluate this argument properly, we must briefly summarize the history of the relevant Rules while bearing in mind "(t)he inevitably uneven pace at which amendments to the . . . Rules . . . must be adopted." United States v. Mauro, 507 F.2d 802, 803 (2d Cir. 1974) (Kaufman, C. J.), cert. denied, 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975). ⁵

Before it was amended in 1972, Rule 41(e) read:

"A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained . . . . The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing."

This mandatory language ("shall be made") was consistent with prior practice. See, e. g., Nardone v. United States, 308 U.S. 338, 341-42, 60 S.Ct. 266, 267-68, 84 L.Ed. 307, 311-12 (1939); United States v. Di Re, 159 F.2d 818, 820 (2d Cir. 1947) (dictum), aff'd, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). See also Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697, 704 (1960); United States v. Mauro, supra at 805-06. The policy underlying this practice has been clearly expressed by the Supreme Court.

"(E)xcept where there has been no opportunity to present the matter in advance of trial, . . . a court, when engaged in trying a criminal case, will not . . . permit a collateral issue to be raised as to the source of competent evidence. To pursue it would be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it." Segurola v. United States, 275 U.S. 106, 111-112, 48 S.Ct. 77, 79, 72 L.Ed. 186, 189 (1927) (citations omitted).

By the 1972 amendments, Rule 41(e) became Rule 41(f) and read as follows:

"A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12." ⁶

It is this version of the Rule which was in force at the time of the trial. ⁷ Appellant emphasizes the absence of an explicit pre-trial requirement in this Rule and in Rule 12, and on that basis he claims that he was not barred from presenting his motion at trial. There is, however, no indication either in the text of the Rules or in the Notes of the Advisory Committee ⁸ of an intention to overrule the longstanding and salutary requirement of pre-trial filing of such motions. We will not lightly assume that such an overruling was intended to be effected sub silentio. "(U)nless the statute so requires with crystal clarity, it should not be so applied as to negative broad principles well settled in our law by a long series of decisions." Scarborough v. Atlantic Coast Line R. R. Co., 178 F.2d 253, 258 (4th Cir. 1949), cert. denied, 339 U.S. 919, 70 S.Ct. 621, 94 L.Ed. 1343 (1950). In addition, we note that those courts which have had occasion to pass on the subject have all held that even under the 1972 version of the Rules pre-trial filing was required. United States v. Rollins, 522 F.2d 160, 165 (2d Cir. 1975); United States v. Mauro, supra ; ⁹ United States v. Sisca, 503 F.2d 1337, 1349 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); United States v. Barber, 495 F.2d 327, 329 (9th Cir. 1974) (semble ). On the basis of all these considerations, we hold that the district court was correct in viewing pre-trial filing as mandatory, in its discretion, rather than optional. ¹⁰

Of course the district court could have admitted the untimely motion to suppress, but its decision not to do so is reviewable by us "(o)nly in a case of the most flagrant abuse of a defendant's rights." United States v. Maloney, 402 F.2d 448, 449 (1st Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1283, 22 L.Ed.2d 481 (1969). See also United States v. Wylie, 149 U.S.App.D.C. 283, 462 F.2d 1178, 1182 (1972); Bailey v. United States, 131 U.S.App.D.C. 314, 404 F.2d 1291, 1292 (1968); 8A J. Moore, supra at P 41.09. Our independent examination of the record and especially of the questioned affidavit convinces us, however, that no such flagrant abuse occurred in the instant case.

II. The Evidence From the Car

Appellant was also unsuccessful on a separate motion to suppress involving other evidence; this time the court's decision was based on the merits rather than procedural grounds. The evidence in question consisted of several cases of whisky removed by federal agents from the trunk of a car registered to appellant that was parked in front of the Addison Street address.

The warrant which the agents had obtained to search the building at 143 Addison Street did not by its terms apply to any vehicle parked on the street outside of that building. At approximately 11 p.m. on July 3, when the agents had completed their search of the building, they decided to look at appellant's car. The trunk of the car had been damaged at some previous time, creating a small aperture. With the aid of a flashlight one of the agents observed the cases of whisky in the trunk. He and his fellow agents then removed the whisky from the car; it was later entered in evidence at the trial as being from the stolen shipment. The question before us is whether the warrantless search of appellant's car was justified.

In the light of recent decisions of the Supreme Court, we believe the warrantless search was proper in the circumstances of this case. It is true that "there is no per se exemption from the warrant requirement for automobiles." United States v. Mitchell, 525 F.2d 1275, 1278 (5th Cir. 1976). Instead, we must undertake a two-step inquiry, asking whether there was probable cause for the search and whether there were present sufficiently exigent circumstances to justify the agents' decision not to seek a warrant. Cardwell v. Lewis, 417 U.S. 583, 592, 595-96, 94 S.Ct. 2464, 2470, 2471-72, 41 L.Ed.2d 325, 336, 337-38 (1974). (plurality opinion).

There can be little question but that the agents had probable cause to search the vehicle. Above all, they had just discovered 214 cases of Canadian Club in the warehouse, which they reasonably could have presumed were from the stolen shipment, and they knew that there were approximately 800 cases still unrecovered. They also were aware that the car was appellant's, and that he had previously refused to answer when they had knocked on the warehouse door. Thus, quite apart from what the flashlight's beam revealed to be contained in the trunk, ¹¹ the agents had probable cause to search the car.

We must determine whether there were present sufficient "exigent circumstances" as that term of art has been defined by the Supreme Court. Cardwell v. Lewis, supra; Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As the Court itself has observed, speaking of the troublesome area of automobile searches generally: "The decisions of the Court over the years point in differing directions and differ in emphasis. No trick of logic will make them all perfectly consistent." Coolidge v. New Hampshire, supra, 403 U.S. at 483, 91 S.Ct. at 2047, 29 L.Ed.2d at 593. The accuracy of this observation becomes apparent when one looks to the case law dealing with the exigency requirement. ¹² But under any reasonable reading of the Court's most recent extensive discussion of the subject, Cardwell v. Lewis, supra, the agents here were confronted with exigent circumstances. It was late at night on the eve of the Fourth of July; the car was parked on a public street and could readily have been removed by appellant (who was still at large) or someone acting for him; there is no indication that the agents knew when th...