United States v. Mancusi

• Citation: 379 F.2d 897
• Decision Date: 28 June 1967
• Docket Number: No. 478,Docket 31112.,478
• Parties: UNITED STATES of America ex rel. Frank DeFORTE, Appellant, v. Vincent R. MANCUSI, Warden of Attica Prison, Attica, New York, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

379 F.2d 897 (1967)

UNITED STATES of America ex rel. Frank DeFORTE, Appellant, v. Vincent R. MANCUSI, Warden of Attica Prison, Attica, New York, Appellee.

No. 478, Docket 31112.

United States Court of Appeals Second Circuit.

Argued June 1, 1967.

Decided June 28, 1967.

James L. Lekin, Buffalo (Michael E. Mecsas, Saperston, Wiltse, Duke, Day & Wilson, Buffalo, N. Y., on the brief), for appellant.

Henry P. Devine, Asst. Dist. Atty. (William Cahn, Dist. Atty., Nassau County, on the brief), for appellee.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The sole issue presented by this appeal is whether the appellant, Frank DeForte, a vice-president of Local 266 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, had "standing" to object to the use against him in a criminal prosecution of various union books and records that admittedly were illegally seized from the union's office by state officials, over the appellant's protests.

I.

The parties have stipulated to the essential facts which are relatively simple. DeForte, Joseph DeGrandis, and Ernest Zundel, all officers of Local 266, were indicted in Nassau County for conspiracy (N.Y.Penal Law, McKinney's Consol. Laws, c. 40, § 580), coercion (N.Y.Penal Law, § 530) and extortion (Penal Law, §§ 850, 851) in connection with an alleged monopolization of the juke box industry in the New York City metropolitan area. They were charged with organizing the owners of music machines and juke boxes, and exacting tribute from them in the form of what appeared to be legitimate initiation fees, dues and monthly assessments. Prior to trial, the District Attorney's Office of Nassau County issued a subpoena duces tecum commanding the local to produce certain books and records. When the union refused to surrender these materials, the state officials who served the subpoena seized the books and records over the protests of DeForte, who was present at the time in the union's office.¹ The search and seizure were conducted despite the absence of a search warrant, and the state has never attempted to justify the behavior of its officials. Indeed, it has admitted the illegality of their acts.

The illegal search produced significant and substantial evidence. The books and records seized consisted, in the main, of the union charter, minutes of Local 266 meetings, the local's bank book, and cancelled checks and stubs. Also taken were applications to join the union by the officers and other prospective members of the local. Appellant, we are told without denial, played a considerable role in the preparation of these materials. Thus, for example, all checks seized were signed by him together with two other officers; he procured and processed the applications of various members; and he made a substantial number of entries in the local's check book, ledger and records. Moreover, it is conceded that appellant was in possession and/or control of the books and records when they were seized from the union's office. That these records were not of little importance to the state's case is revealed by its admission that "most of the books and records of Local 266 which were seized were introduced into evidence."

The trial of appellant and his co-defendants resulted in the conviction of DeForte, DeGrandis and Zundel, and the acquittal of 12 other defendants named in the indictment. Appellant was subsequently sentenced to a term of from 3 to 5 years in prison. Following his conviction, DeForte appealed to the Appellate Division of the Supreme Court, Second Department, and thereafter to the New York Court of Appeals, alleging, among other points, that the search of the union's office and the seizure of its books and records were illegal, and accordingly the evidence should not have been admitted against him at trial. Both appellate courts affirmed the conviction on the ground that he lacked standing to raise this issue because the books and records were not his personal or private papers, but rather were the property of the union. People v. DeGrandis, 16 A.D.2d 834, 228 N.Y.S.2d 875, aff'd, 12 N.Y.2d 812, 236 N.Y.S.2d 63, 187 N.E.2d 130 (1962). Certiorari to the United States Supreme Court was subsequently denied. 375 U.S. 868, 84 S.Ct. 91, 11 L.Ed.2d 95 (1963).

Having exhausted his state remedies, appellant applied for a federal writ of habeas corpus on an alleged "coercion of the jury" claim. His application was denied, and that denial was affirmed by this Court.² DeForte then filed a second application in the District Court alleging first, that the books and records used against him during the trial had been seized in violation of his Fourth Amendment rights, and second, that illegal wiretap evidence also had been improperly admitted. The latter claim was withdrawn, while the former was never considered on the merits because Judge Henderson's denial was grounded on his belief that DeForte lacked standing to raise this objection. It is from this denial that he appeals.³

II.

The quest for a clear solution to the perplexing query as to who may challenge an allegedly unlawful search and seizure has been confounded by thorny problems. For nearly 50 years we followed the precept that while evidence secured by federal officers as the result of an illegal search and seizure could not be used in a federal prosecution, Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), not all defendants had standing to challenge this evidence. Then, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), we were told that the Fourth Amendment right to privacy was guaranteed against state invasion by the Fourteenth Amendment and had to be enforced by the same exclusionary rule found in the federal courts.⁴ Thus, the states were confronted with this same "standing" problem, and were compelled to apply the rules that had been developed in the federal courts in determining this question. See U. S. ex rel. Coffey v. Fay, 344 F.2d 625, 628 (2d Cir. 1965).

In the pre-Mapp era, the federal rule seemed to be that in order to have standing to challenge the legality of evidence allegedly obtained in violation of the Fourth Amendment, a defendant must "claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched." Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L. Ed.2d 697 (1960). See generally R. Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471-86 (1952). But, some relaxation of this quite stringent standard seemed to be in the making even prior to Jones. In McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948), the Supreme Court held that a defendant had standing to suppress evidence that had been illegally taken from a co-defendant, who had moved unsuccessfully to suppress, because "if the property had been returned to the codefendant * * * it would not have been available for use at the trial." But see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). And in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), the Court ruled that a defendant who had stored narcotics in a hotel room rented by his two aunts, and to which he had been given the key, had standing to object to an unlawful search and seizure in the aunts' room. The Court added that "to hold that this search and seizure were lawful as to the respondent because the search did not invade his privacy would permit a quibbling distinction to overturn a principle which was designed to protect a fundamental right." Id. at 52, 72 S.Ct. at 95. But it was not until Jones v. U. S., supra, that the Supreme Court attempted to articulate some standards to guide the courts in this difficult area. A careful examination of that case is therefore essential to a proper resolution of the issues now before us.

III.

Jones was arrested by police officers who possessed a warrant to search for narcotics in an apartment belonging to Evans, his friend. Evans had given Jones the use of the apartment, and a key with which he admitted himself on the day of the arrest. Though his home was elsewhere, Jones had a shirt and suit at the apartment, and had slept there "maybe a night." 362 U.S. at 259, 80 S.Ct. 725.

Prior to trial, Jones moved to suppress the narcotics and paraphernalia seized by the officers, claiming that their warrant had been issued without a showing of probable cause. The government challenged defendant's standing to raise this issue on the ground that he failed to allege "ownership" of the seized goods, or an interest in the searched premises greater than that of an "invitee or guest." The District Court and the Court of Appeals adopted this argument which permitted the receipt in evidence of the seized material.

The issue squarely presented to the Supreme Court was whether Jones was a "person aggrieved" within the meaning of Rule 41(e) of the Federal Rules of Criminal Procedure,⁵ and accordingly had standing to make a motion to suppress pursuant to that rule. Speaking for a unanimous Court,⁶ Justice Frankfurter observed that:

In order to qualify as a "person aggrieved by an unlawful search and seizure" one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Rule 41(e) applies the general principle that a party will not be heard to claim a constitutional protection unless he "belongs to the class for whose sake the constitutional protection is given". People of State of New York Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 190, 51 L.Ed. 415. * * *

Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for

...