U.S. v. Giacalone

• Decision Date: 18 December 1978
• Docket Number: No. 78-5055,78-5055
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vito GIACALONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1158

588 F.2d 1158

UNITED STATES of America, Plaintiff-Appellee, v. Vito GIACALONE, Defendant-Appellant.

No. 78-5055.

United States Court of Appeals Sixth Circuit.

Argued June 19, 1978.

Decided Dec. 18, 1978.

N. C. Deday LaRene, Detroit, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., C. Stanley Hunterton, Sp. Atty., Detroit Strike Force, U. S. Dept. of Justice, Detroit, Mich., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and CELEBREZZE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

Vito Giacalone was found guilty in a jury trial of unlawful possession and receipt of a firearm by one having been convicted of a felony, in violation of 18 U.S.C. § 1202(a)(1) (Appendix) (1976). On direct appeal he challenges the procedures which produced the weapon in question, complains that the trial judge committed reversible error in

refusing to excuse three jurors for cause, and finally complains that the trial judge unfairly supplemented the charge to the jury, thereby coercing it into convicting him. We affirm.

I. THE SEARCH AND SEIZURE

The incident which resulted in Giacalone's indictment and ultimate conviction here arose when Giacalone was arrested upon a federal warrant charging him with operation of an illegal numbers business and a related conspiracy charge. Giacalone was arrested by federal authorities at 4:41 p. m., March 29, 1977, as he was entering, or about to enter, ¹ his Cadillac automobile which was then parked in the parking lot of the Southfield Athletic Club, a private club near Detroit. At the time of the arrest, the FBI agents seized but did not search Giacalone's automobile. There was outstanding an application by the government for a seizure warrant under 18 U.S.C. § 1955(d) upon the theory that the automobile was subject to forfeiture because of its alleged use in the gambling operation. The search warrant had not been issued at the time of Giacalone's arrest and the seizure of the car, and apparently it was ultimately later denied by a magistrate. A few minutes after Giacalone was arrested, Special Agent Donald C. Bretnell, while inside the Southfield Athletic Club, spotted Dominic Vivio, recognized by him as Mr. Giacalone's driver, engaged in a telephone conversation. At that time he overheard Vivio state his concern that if the police searched the car, "they (might) find the goddamn thing in there." A confidential informant, "FBI-2", likewise overheard Vivio tell the defendant Giacalone, "(w)e've got to get that gun out of there right now." The preceding January the FBI had been informed by another confidential informant, "FBI-1", that he "had overheard a conversation between Vito Giacalone and an unidentified white male during December 1976 where Giacalone stated he, Giacalone, had recently installed a secret compartment in his Cadillac." FBI-1 added corroborating details concerning the car's description and license number. A conversation involving Giacalone which FBI-2 had overheard in February, 1977 also squared with what FBI-1 had stated concerning the December, 1976 conversation. ² On the basis of the foregoing information and further noting Giacalone's status as a convicted felon, the FBI prepared an affidavit for presentation to the district court in its application for a search warrant. ³ Meanwhile the automobile was taken into possession and transported from the Southfield Athletic Club to the FBI garage where it was secured until the warrant was issued. The search took place the following day, March 30, pursuant to the warrant. In a secret compartment installed beneath the dashboard of the Cadillac the FBI discovered a Smith and Wesson pistol.

While appellant urges that the affidavit for the search warrant was insufficient, an assertion which we find without merit, his primary complaint is that the information which was incorporated in the affidavit and provided the probable cause was itself illegally obtained because it was the product of the warrantless seizure and detention of Giacalone's automobile which had occurred at the time of his arrest on March 29.

The temporary detention of Giacalone's car at the time of his arrest, while awaiting the issuance of a search warrant, was certainly not unreasonable, even though the forfeiture warrant which was originally sought was not issued. Coupled with the information contained in the search warrant affidavit, the government's evidence at the suppression hearing sufficed to establish that at the time the automobile was first detained in the parking lot of the Southfield Athletic Club the government had probable cause to believe it contained the hidden firearm. ⁴ In the meantime, of course, the agents became possessed of further hard evidence which would and did, indeed, support the issuance of a search warrant. Their detention meanwhile of the automobile, whether in the parking lot or, as here, at a police compound following its removal, represented a reasonable and minimal intrusion justified by the exigent circumstances. ⁵

Nor can we accept appellant's argument that the warrantless detention of the Cadillac, although supported by probable cause and exigency, was nonetheless unreasonable because it represented an effort to avoid prior review by a magistrate and thus frustrate the warrant requirement. See generally United States v. Chuke, 554 F.2d 260, 263-64 (6th Cir. 1977). In our judgment, the government's conduct represents scrupulous adherence to the standards of reasonableness which the Supreme Court has determined are mandated under the Fourth Amendment in conjunction with the seizure and search of automobiles.

The facts of this case fully suggest the propriety of the exception to the warrant requirement in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), in which the Court distinguishes searches of stable structures such as dwelling houses from the "search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 267 U.S. at 153, 45 S.Ct. at 285. The automobile exception in Carroll has been repeatedly reaffirmed by the Supreme Court and in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed. 538 (1977), the Supreme Court further noted that the vehicle's mobility is not the sole touchstone, since warrantless searches have been upheld "in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent." Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973). A further justification for this exception to the warrant requirement lies in the diminished expectation of privacy pertaining to an automobile. Chadwick, supra, 433 U.S. at 12-13, 97 S.Ct. 2476.

Finally, appellant's assertion that somehow the alleged unlawful physical seizure of the automobile unlawfully produced the evidence which was incorporated in the application for a search warrant is without

merit. The officer's seizure of the automobile, wrongful or not, produced none of the information concerning the presence of a gun in the car upon which the valid search warrant was later issued. The gun cannot, therefore, be said to be the fruit of any alleged illegality in detaining the car. Good police work, not an unlawful seizure, produced the evidence which led to the search warrant and ultimately to the seizure of the pistol.

II. THE JURY VOIR DIRE

The trial court conducted a separate Voir dire of the venire to determine the possibility of disqualification due to prejudice, with each of the prospective jurors being examined individually and out of the hearing of the other jurors. Defense counsel was permitted to question the jurors directly after the court had concluded its questioning. Giacalone asserts that the trial court erred in failing to grant his motion to strike for cause three prospective jurors, Glantz, Noffert and Gray. When the challenge for cause was denied, Giacalone exercised his peremptory challenges to excuse the jurors so that none served on the jury which ultimately ruled on his guilt. At the same time Giacalone asserts that the court's refusal to strike the jurors for cause prejudiced him by forcing him to exercise his peremptory challenges, diminishing the number of such challenges which he was otherwise entitled under the law to employ.

In each case the cause asserted was the acknowledgement by the juror that he had heard of Giacalone or his surname prior to the trial, and had associated it in one way or the other with illegal or improper activities. Thus, Glantz thought that he had heard the name Giacalone as far back as ten or twelve years previously, possibly as the name of a former owner of a store in which he had worked, and that the name generally in his mind had "something to do with crime, I guess." Juror Noffert had raised his hand when the court asked whether any jurors had heard the name of Vito Giacalone before. Mr. Noffert informed the court and defense counsel that he had worked for a finance company eight or nine years previously and that one of the men receiving the payments on one of the loans, he believed, was Giacalone. Noffert also indicated that he had read Giacalone's name in the papers and in articles concerning organized crime. Under questioning by counsel for the defendant, Noffert had indicated that at the time he had considered the loan activity abnormal, but in answer to whether he thought there was "something shady or something funny about those loans", Noffert indicated that he had no idea since the transaction had taken place prior to his employment by the company and that he had merely serviced the loan some years ago. Juror Gray indicated that she had heard the name on the news and on radio and that she had "a bad connotation, a bad feeling, about the name. But, I couldn't say...