United States v. Paroutian

• Decision Date: 26 June 1963
• Citation: 319 F.2d 661
• Parties: UNITED STATES of America, Appellee, v. Antranik PAROUTIAN, Defendant Appellant.
• Court: U.S. Court of Appeals — Second Circuit

319 F.2d 661 (1963)

UNITED STATES of America, Appellee, v. Antranik PAROUTIAN, Defendant Appellant.

United States Court of Appeals Second Circuit.

Argued June 12, 1963.

Decided June 26, 1963.

Irving Younger, New York City, for defendant-appellant.

Jerome C. Ditore, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty. for the Eastern District of New York, on the brief) for appellee.

Before MOORE, HAYS and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

This is an appeal by Antranik Paroutian from a judgment of conviction entered by the United States District Court for the Eastern District of New York, Mishler, J., after appellant was found guilty on both counts of an indictment charging separate violations of the federal narcotics statute, 21 U.S.C. § 174. He was sentenced to serve twenty years in prison on each count, the sentences to run concurrently, and to pay a fine of $20,000 on each count, or a total of $40,000.

The present appeal is the second which Paroutian has taken to this court. The first was from a judgment of conviction had at an earlier trial upon the same two counts involved in the present case. That conviction was reversed by this court because of the introduction of illegally seized evidence taken during two unlawful searches of Paroutian's apartment and of evidence not shown to be other than "fruit of the poisonous tree" taken during a third, lawful search. United States v. Paroutian, 299 F.2d 486 (2 Cir. 1962). It was during the third search of the apartment that federal narcotics agents broke into a cedar-lined closet, which Paroutian had installed and which one of the agents had noticed on an earlier, unlawful search, and found a secret compartment containing heroin. The facts surrounding the three searches are set forth in the opinion on the first appeal and need not be repeated here, particularly since they are not central to any of the three contentions which appellant now urges.

After this court had remanded the case to the district court for a new trial, the district judge permitted the Government to prove that the information which led it to discover the heroin in the cedar-lined closet during the third search had a source — a special employee who acted as an informer — independent of any information obtained during the first two, unlawful searches. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319 (1920); Parts Mfg. Corp. v. Lynch, 129 F.2d 841, 143 A.L.R. 132 (2 Cir.), cert. denied, 317 U.S. 674, 63 S. Ct. 79, 87 L.Ed. 541 (1942). The district judge credited the Government's presentation and accordingly denied defendant's motion to suppress.

Appellant contends that it was error for the district court even to consider the question of the admissibility of the evidence taken during the third search because the opinion of this court on the first appeal ordered the suppression of that evidence. We disagree. The opinion of the court went no further than to hold that "the prosecution failed to show any source for its information other than the illegal search." 299 F.2d at 489. There is nothing in the opinion to suggest that this court intended to preclude the Government from proving upon retrial the existence of an independent source of information. We read the court's opinion as it was read by Judge Moore who, dissenting because he did not believe that the evidence taken during the third search was tainted, noted that "the majority concedes that this evidence can be introduced if on a new trial the government can present additional proof that the excluded evidence had an independent source." 299 F.2d at 492.

Appellant's second contention relates to the manner by which the district court permitted the Government to prove an independent origin for the information leading to the discovery of the heroin in the cedar-lined closet during the third search. The district court found that the third search was based upon "information as to the existence of the secret compartment in apartment 3F from Agent Charles G. Ward, who had been advised of its existence by a special employee by the name of Angelo Sonnesso." Since Sonnesso's statements to Ward, and Ward's statements to Pera, the agent who made all three searches, were independent of any information obtained by Pera during the earlier searches, the district judge denied defendant's motion to suppress the seized evidence.

At the first trial the Government successfully defended against the motion to suppress by arguing that the evidence taken during the third search was not tainted. It made no reference to Sonnesso or to any statements made by him, in part because it believed it could prevail without this evidence and in part because it desired to withhold Sonnesso's identity in order to protect his life. When the district court's finding was reversed on appeal, the Government at the second trial was forced to rely upon the information given it by Sonnesso in order to establish the independent source which this court said would be necessary to validate the third search. Although both Ward and Pera testified to the circumstances in which Sonnesso gave the Government his information, Sonnesso did not testify because he had disappeared and in the opinion of Ward had been murdered.

Appellant contends that it was error for the district court to allow the Government, which at the first trial had made no mention of the existence of Sonnesso, to rely at the second trial, which he was no longer available for cross-examination, upon the information which he gave. This contention is without merit. At the first trial the Government decided that there was no...