U.S. v. Jackson
| Decision Date | 31 May 1978 |
| Docket Number | Nos. 77-1602 and 77-1612,s. 77-1602 and 77-1612 |
| Citation | 576 F.2d 749 |
| Parties | UNITED STATES of America, Appellee, v. Michael C. JACKSON, Appellant. UNITED STATES of America, Appellee, v. Salvatore (Sam) PELLITIERI, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Terrance J. Good, Clayton, Mo., argued and on brief, for appellant, jackson.
John D. Connaghan, St. Louis, Mo., argued and on brief, for appellant, Pellitieri.
Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo. (argued), and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee.
Before LAY, BRIGHT, and HENLEY, Circuit Judges.
On June 23, 1977, a federal petit jury in St. Louis, Missouri, convicted Michael Jackson and Salvatore "Sam" Pellitieri on three felony counts: conspiracy to transport stolen securities in interstate commerce, 18 U.S.C. §§ 371, 2314 (1976); receiving and concealing stolen securities that were part of interstate commerce, 18 U.S.C. § 2315 (1976); and possession of stolen goods or chattels valued at more than $100 that were part of interstate commerce, 18 U.S.C. § 659 (1976). Both defendants were sentenced to five years on the conspiracy charge and seven years on each of the other charges; the sentences are to run concurrently.
In this appeal the defendants challenge their convictions. They contend primarily that blank stock share certificates are not "securities" and therefore not covered by the federal criminal code provisions on which they were convicted, and that even if the blanks are securities, their value is less than that required for conviction under the statutes.
We reverse their convictions on counts I and II, finding that blank stock certificates are not securities under the terms of the applicable federal criminal code provisions. We affirm their convictions on count III, for possession of stolen goods or chattels, holding that the requisite jurisdictional minimum of over $100 is met in this case.
On February 18, 1977, the American Bank Note Company of Bronx, New York, delivered five boxes of blank Kraftco share certificates to Novo Air Freight of Newark, New Jersey, for shipment to the National Boulevard Bank of Chicago. Two of the boxes, one containing 1,250 certificates in 100-share denominations and the other 1,750 certificates in "odd-lot" denominations, 1 were missing at the destination point. On February 22, 1977, the Federal Bureau of Investigation was notified of the theft.
In order to recover the certificates, the FBI devised an undercover operation in which agents posed as representatives of a construction company seeking stolen share certificates to use as security for a performance bond. On March 11, 1977, agent Don Taylor called appellant Michael Jackson on the telephone. During their conversation Jackson stated that he could obtain some blank stock certificates, and they agreed to meet that day to discuss the transaction.
The meeting was held at the Rodeway Inn in St. Louis, Missouri. At the meeting Jackson stated that he had access to 200,000 shares of stolen blank Kraftco share certificates and displayed two of the blanks to Taylor. One was a 100-share certificate, and the other an odd-lot certificate that had not been punched out to indicate a definite number of shares. Agent Taylor and Jackson agreed upon a price of forty percent of market value per share. 2 After the meeting a second FBI agent, William Deal, observed Jackson meet with Salvatore "Sam" Pellitieri and a third party. Jackson stated, "Give me the copies." Jackson then returned to Taylor and gave him xeroxed copies of the two share certificates he had earlier displayed.
Negotiations between Jackson and Taylor over the purchase of the blank certificates continued during the next few days. Jackson identified his source as "Sam" but indicated that he was having delivery problems. He mentioned that he might have to go to New York to make the initial purchase. Because the FBI had obtained a warrant to tap the telephone Jackson used, it was able to record many of these conversations as well as conversations between Jackson and Pellitieri concerning the transaction. Pellitieri was kept under surveillance during this period. On several occasions he was observed in the vicinity of the negotiations, and FBI agents overheard him make several incriminating statements.
On March 24, 1977, Pellitieri flew to Buffalo, New York. There the FBI observed him meeting with three other individuals. On March 25, 1977, Jackson received a package from Pellitieri that was sent via Trans World Airlines from New York. The package contained one blank certificate of Alco Products, Inc., stock. That evening Jackson showed Taylor the Alco stock certificate. He stated that if Taylor did not like the Alco stock, "Sam" was in New York and had access to other "samples," which he would forward to St. Louis for approval. The next day Jackson called Taylor and told him that the Alco stock was worthless but that he would call "Sam" and request more samples.
On March 30, 1977, Taylor went to a small office where Jackson was working. He arrested Jackson and seized a file drawer full of documents and a brief case resting on top of the file cabinet as evidence. Pellitieri was also arrested, and the two were brought to trial together.
Neither Jackson nor Pellitieri attack the sufficiency of the evidence. Instead, both assert that the trial court made reversible errors that fall into two broad categories: (1) admission of improperly-obtained evidence; (2) allowing the prosecution to go ahead under the assumption that (a) blank stock share certificates are covered by the provisions of the federal criminal statutes allegedly violated, and (b) the minimum jurisdictional value of the contraband required for prosecution under the statutes was met in this case.
Jackson and Pellitieri make different objections to certain items of the evidence introduced at their joint trial. Pellitieri argues that the district court erred in admitting into evidence the wiretapped and recorded telephone conversations. Jackson does not object to the wiretap evidence, but he claims that the Government on his arrest illegally seized evidence from the closed filed drawer and his attache case, and therefore that evidence should not have been admitted at trial.
Pellitieri's objection to the recorded telephone conversations can be dismissed summarily. 3 Our review of the record indicates that the warrant authorizing the wiretaps was based on probable cause and properly issued. We do not find that the supporting affidavit contains any material misrepresentations or omissions. Instead, the affidavit fairly sets out the facts as the Government understood them, and it sufficiently supports probable cause.
Jackson's contention that the evidence seized when he was arrested should have been suppressed by the district court is more troublesome. When Jackson was arrested in an office the FBI seized a drawer full of documents in a file cabinet and an attache case resting on top of the cabinet. Later the FBI searched through the drawer and attache case, finding two items that were introduced as evidence at trial: the blank Alco stock certificate that Jackson had displayed previously to FBI agent Taylor, and a note from Pellitieri to Jackson, apparently mailed from New York, that read:
Could Alco Products be Shell Corp?
Worthington=Alco Products
Name affiliated with Alco Products
The district court denied Jackson's motion to suppress the items taken in the arrest search, stating:
This file cabinet opened on its top and sides, and was so opened at the time of the arrest. Thus, the contents of the cabinet were visible without the need to open drawers. Agent Taylor had also seen defendant place documents concerning false certificates of deposit in defendant's attache case. This case was on top of, or along aside (sic), the file cabinet at the time of arrest. Both the attache case and one drawer of the file cabinet containing bank records were seized at the time of arrest. No search warrant was obtained prior to the seizure.
It is the Court's conclusion that the seizure of evidence was proper. The items seized were in plain view. Cf. United States v. Rothberg, 345 F.Supp. 1331, 1334-35 (E.D.N.Y.1971), rev'd on other grounds, 460 F.2d 223 (2d Cir. 1972).
In admitting the evidence under the "plain view" exception to the search warrant requirement, the district court erred. Although the file drawer and the brief case that the agents seized were perhaps 4 in plain view, the contents of each were not. The plain view doctrine does not authorize search and seizure of items contained within objects like attache cases, file cabinets, and luggage that are themselves in "plain view." See Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977). A "plain view" seizure is limited to items that are clearly incriminating and that are inadvertently encountered in the course of a justifiable intrusion. Coolidge v. New Hampshire, supra, 403 U.S. at 468-71, 91 S.Ct. 2022. It cannot be used as justification for rummaging through file cabinets, even with probable cause to believe that incriminating evidence lies within. Cf. United States v. Chadwick, supra.
The Government's alternative argument justifying the seizure and search as "incident to arrest" under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), is also invalid. Chimel held that arresting officers could search, without a warrant, only the area within the immediate control of the person arrested,...
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