U.S. v. Modica

Decision Date30 October 1981
Docket NumberD,No. 1025,1025
Citation663 F.2d 1173
PartiesUNITED STATES of America, Appellee, v. Gaetano MODICA, Appellant. ocket 80-1482.
CourtU.S. Court of Appeals — Second Circuit

Barry E. Schulman, Brooklyn, N. Y. (Edwin I. Schulman and Schulman & Laifer, Brooklyn, N. Y., of counsel), for appellant.

William J. Cunningham, III, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Brooklyn, N. Y., Jane Simkin Smith, Asst. U. S. Atty., E.D.N.Y., New York City, of counsel), for appellee.

Before TIMBERS and NEWMAN, Circuit Judges, and SOFAER, District Judge. *

PER CURIAM:

This appeal-like far too many reaching this Court-centers on improper statements made by a prosecutor in his summation to a jury. Such misconduct has gone largely unremedied, for appellate courts are understandably reluctant to reverse convictions merely to discipline prosecutors. This case, too, is one in which the prosecutor's improper remarks do not warrant reversal of the conviction. The time has come, however, to explore possible sanctions for prosecutorial misconduct other than reversing convictions. We believe that alternative sanctions can and should be fashioned, and that an exploration of their use may prove to be more effective than the unheeded condemnations expressed in prior opinions.

I. The Crime Alleged

Appellant's indictment grew out of an unorthodox scheme to smuggle five kilograms of heroin into the United States through John F. Kennedy International Airport. On October 22, 1979, a brown, soft-sided, zippered suitcase arrived at the airport on an Alitalia Airlines flight from Rome. The suitcase carried no personal identification tag and no baggage claim-check; the only identifying feature was the brandmark "Airway." No one claimed the suitcase, and it was placed in the Alitalia section of the leftover baggage room at the airport, an area controlled by the United States Customs Service. On October 23, an Alitalia employee presented the suitcase to a customs agent; the agent examined the bag cursorily, found nothing, and cleared it. The bag was then moved to the Alitalia lost-and-found room. Later that day, another Alitalia employee, Finiello, searched the suitcase in order to identify and locate its owner. As he searched, two plastic bags fell out of a coat in the suitcase. Finiello correctly suspected that the bags contained heroin, and he so advised another employee in the lost-and-found room, Miradoli, as well as the area supervisor. The Alitalia employees returned the suitcase to the left-over baggage room, where a customs inspector examined it and discovered three additional bags of heroin. In all, the suitcase contained five kilograms of heroin, with a wholesale value of.$1.4 million.

The parties disagree as to what transpired between the time that the heroin was discovered and November 15, when appellant Gaetano Modica claimed the suitcase. The prosecution's account is that the suitcase remained unclaimed for about two weeks. Then, on the afternoon of November 12, appellant went to the Alitalia information desk at the airport and contacted an employee named Amato. Appellant gave Amato a note, dated November 1979, and written in Italian on Alitalia stationery. The note was from Morfino, an Alitalia employee apparently stationed in Palermo, Italy. The note asked Amato to assist Morfino's cousin, the bearer of the note. Appellant told Amato that he had arrived on an Alitalia flight from Rome on the previous day and had lost a suitcase. Amato accompanied appellant to the lost-and-found room to search for the bag, but Finiello told them that appellant would need to bring his baggage claim-check, and they left.

On the evening of November 12, appellant and Amato returned to the lost-and-found room. Appellant brought four baggage claim-checks. Miradoli, who had been present with Finiello on appellant's earlier visit, located a bag that matched one of the claim checks. Appellant signed for the bag and then left the room with Amato. Shortly thereafter, they returned, and Amato asked Miradoli to assist appellant on another problem. Amato then left the room, and appellant told Miradoli that he was looking for another bag-a brown, soft-sided, zippered suitcase. He claimed that his aunt had arrived on an October 22 Alitalia flight, but had been too ill to claim the suitcase. Miradoli ascertained from the baggage records that two bags that had arrived on October 22-one black and one brown-had gone unclaimed. He mistakenly told appellant that the brown bag had been returned to Alitalia's lost-and-found department in Rome. Appellant then left the room. Later that day, however, Miradoli rechecked the records and discovered that the brown suitcase had not been returned to Rome; he then realized that appellant was looking for the suitcase that contained the heroin.

On November 15, appellant visited Amato at a travel agency for which Amato moonlighted; appellant had asked for Amato's business card on the twelfth and said that he might purchase airline tickets from Amato there. On the fifteenth, appellant did indeed purchase several tickets from Amato. Appellant again asked for help in locating the brown suitcase from the October 22 flight, and he said that he had determined that the bag had not been returned to Rome. (At trial, Amato was unable to recall the details of this conversation, and the prosecution introduced portions of his grand jury testimony.) Appellant described the suitcase as light brown and carrying no claim check. Appellant handed Amato a note on blue paper with "RWUY" written on it to describe the brandmark on the suitcase; Amato interpreted those letters to be a phonetic approximation of "Airway." Appellant told Amato that the suitcase contained something valuable and that someone might get in trouble if the bag were not found; he gave Amato his home telephone number and left.

When Amato arrived at work in the Alitalia terminal later that day, he was interviewed by Drug Enforcement Administration ("DEA") agents as a suspect in their investigation of the October 22 suitcase. After recounting his conversation with appellant, Amato was directed to phone appellant and inform him that his suitcase had been found. 1 Appellant returned Amato's call at 10:30 p. m., and Amato told him to come and claim the suitcase that evening. Appellant arrived around 11:00 p. m., and Amato led him to the hallway outside the lost-and-found room. DEA agents had lined up a half-dozen suitcases there; appellant looked the bags over, chose the October 22 suitcase, and departed with it. Under extensive surveillance, appellant drove to a restaurant and, after about two hours, returned to his home. DEA agents there arrested him and seized the suitcase from the trunk of his car.

The prosecution's theory of the crime was that appellant, working with confederates in Italy, had concocted this unusual scheme to smuggle the heroin past the customs agents. The perpetrators had deliberately removed all identification from the bag, hoping for a cursory inspection in the left-over baggage room. As soon as appellant arrived from Italy, he began his efforts to obtain the suitcase.

Appellant's defense was in essence that he had been framed by Amato. Appellant contended that Amato, probably in conjunction with other Alitalia employees, had planned to smuggle in the suitcase. When the heroin was discovered and Amato interrogated as a suspect, he needed to shift the blame onto someone else, and appellant unfortunately happened along at that time. Appellant was not seeking a suitcase from an October 22 flight, but rather was seeking a second lost bag from his November 11 flight. When Amato called appellant on November 15, he told appellant that he had located that second suitcase. At the airport, appellant claimed, Amato pointed to the suitcase and told appellant that he need not examine it because it was his. Thus, appellant unwittingly claimed the suitcase pursuant to Amato's scheme.

Appellant was indicted on three counts: attempting to possess with intent to distribute five kilograms of heroin, 21 U.S.C. §§ 841(a)(1), 846; possessing with intent to distribute thirty grams of heroin, 21 U.S.C. § 841(a)(1); and importing five kilograms of heroin into the United States, 21 U.S.C. §§ 952(a), 960(a)(1). On October 28, 1980, the jury convicted appellant of the first two counts and acquitted him of the third. The trial court sentenced appellant to ten years imprisonment and fifteen years special parole on each of the two counts, the sentences to run concurrently.

II. The Warrantless Search

When the DEA agents arrested appellant in front of his house, they conducted a warrantless search of the trunk of his automobile and found the suitcase. Appellant moved below to suppress the suitcase, on the ground that the agents needed a warrant to enter the trunk. The district court properly denied appellant's motion. The agents knew that the automobile was carrying heroin, and they therefore had probable cause to believe that the automobile could be seized and forfeited pursuant to 49 U.S.C. § 782 and 21 U.S.C. § 881. 2 They were entitled to search the trunk without a warrant even though they did not seize the automobile. United States v. Panebianco, 543 F.2d 447, 456 (2d Cir. 1976) cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977); United States v. La Vecchia, 513 F.2d 1210, 1215-17 (2d Cir. 1975); United States v. Francolino, 367 F.2d 1013, 1018-22 (2d Cir. 1966), cert. denied, 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110 (1967).

The search of the suitcase itself, in contrast to the search of the trunk, was a minor issue below. See Transcript at 17-30, 163-71. Although it is unclear whether appellant objected to this search, the trial judge indicated that the suitcase, once taken from the trunk, was properly searched under the "controlled delivery" theory of United States v. Bulgier, 618 F.2d 472 (7th Cir.), cert....

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