United States v. Scaglione

• Decision Date: 09 July 1971
• Docket Number: No. 29279.,29279.
• Citation: 446 F.2d 182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nick SCAGLIONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 182 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Nick SCAGLIONE, Defendant-Appellant.

No. 29279.

United States Court of Appeals, Fifth Circuit.

July 9, 1971.

Henry Gonzalez, Tampa, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Bernard H. Dempsey, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

Scaglione appeals from his conviction by a jury on all five counts of an indictment charging that, on each of five dates, he knowingly and intentionally caused to be sent in interstate commerce gambling paraphernalia consisting of flash paper intended to be used as a device in a numbers, policy, bolita, and other similar games, in violation of 18 U.S.C. § 1953. Flash paper, having been chemically treated so as to be instantly combustible when heat is applied, is used in policy and similar games because it can be quickly destroyed if there is a threat of seizure. We affirm.

1.

The trial court did not err in denying defense demands for production under the Jencks Act, 18 U.S.C. § 3500, of two interview reports of FBI agents who had interviewed government witness Candeleiri. Candeleiri was examined fully on voir dire. He testified that he signed no statement, that he did not observe the agents taking notes in their interviews with him, and that he saw no notes. The trial judge examined the agents' interview reports and ascertained that they were not signed by Candeleiri. All concerned recognized that the reports were not producible unless, under § 3500(e) (1), they had been "otherwise adopted or approved" by Candeleiri.

Two or three days before trial the prosecutor met with Candeleiri in the presence of the agents who had interviewed him. As the prosecutor described it, he asked Candeleiri to "give the facts of the case as you remember them," Candeleiri did so, and at some points where Candeleiri's recital differed from what was shown by the report the prosecutor would interrogate him further about the particular aspect. The prosecutor stated also "we simply reviewed the substance" of the reports.

Candeleiri's description was that the prosecutor held the statements in his hand and from time to time read to him and asked him "What about it?" and would ask "Do you recall the statement?" The trial court asked Candeleiri:

Q. Do you know whether he was asking you what was in the statement or not?

to which Candeleiri responded:

A. Well, he looked at it and asked me, so I imagine he did, Judge.

The government relies upon Matthews v. United States, 407 F.2d 1371 (5th Cir. 1969) which held that an agent's reading portions of his notes to the person interviewed and asking him to verify the accuracy thereof, which the person did, was not an adoption of the agent's notes in their entirety. We pointed out, 407 F.2d at 1376, that there was no verbatim or even substantially verbatim repetition of the notes by the agent to the witness or a confirmation by the witness of their completeness. However, Matthews is not a free ticket to circumvention of the Jencks Act. We do not exclude the possibility that the witness may adopt or ratify an interview report in a piecemeal manner by response to a number of inquiries as effectually as by a single generalized response. The inquiry is whether the witness has made as his own "the product of the investigator's selections, interpretations and interpolations," Palermo v. United States, 360 U.S. 343 at 350, 79 S.Ct. 1217, at 1223, 3 L.Ed.2d 1287 at 1294 (1959), so that the defense should be permitted to use it to impeach him. If the witness has not done so it is grossly unfair to use the language, interpretations and interpolations of someone else to impeach him. Id. Our review of the trial judge's ruling that Candeleiri did not adopt the interview reports is to determine whether it was plainly erroneous. Matthews, supra, 407 F.2d at 1376. We are not able to say that it was.

Alternatively, appellant urges that a witness' testimony from the stand which is consistent with a statement not signed and not otherwise adopted or ratified is itself a ratification or adoption. This is a fundamental contradiction. The Jencks Act is directed to making the witness' statement available so that contents which are inconsistent with his in-court testimony may be used for impeachment. If the testimony is so consistent with the statement as to be an adoption or ratification thereof it can serve no purpose as impeaching.

Appellant also claims to have been erroneously denied Jencks Act production of statements of witnesses Fried and Elz. There was no evidence of their ratifying or adopting their statements, and the defense did not even demand the statement of Elz.

2.

On April 24, 1965 Internal Revenue Service agents raided an apartment which did not belong to appellant, pursuant to a search warrant predicated on the federal wagering tax statutes. The affidavit for the warrant alleged violations of Sections 4411, 4412, 4901 and 7203 of the Internal Revenue Code of 1954.¹ Scaglione was found in a room of the apartment with a large quantity of assorted gambling paraphernalia. The paraphernalia was seized, Scaglione was arrested and other paraphernalia taken from his person. He was charged with failing to register and pay the special occupational tax required of persons in the business of accepting wagers, in violation of Sections 4411, 4412, 4901(a) and 7203. Scaglione filed a motion to suppress, it was denied, and he was tried and convicted. This court reversed, Scaglione v. United States, 396 F.2d 219 (5th Cir. 1968), on the authority of Marchetti v. United States, 390 U. S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968).

In the present case, some of the paraphernalia seized in the search of April 24, 1965 was introduced, over objection, as circumstantial evidence of Scaglione's guilt of the charge of interstate transportation of gambling paraphernalia. Thus we are squarely presented with the question whether Marchetti and its companion case, Grosso v. U. S., 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), apply retroactively to bar the introduction, in a collateral prosecution under § 1952, of evidence seized during a pre-Marchetti-Grosso search pursuant to a warrant issued on the basis of probable cause to believe there existed a violation of the statutory scheme invalidated in Marchetti and Grosso. Because of our disposition of this question, it is unnecessary for us to pass on the government's contention that Scaglione may not now raise this issue because he failed to raise it in his earlier appeal.

The Supreme Court has not answered the precise question before us, but it is one of the issues presented in Washington v. United States, 402 F.2d 3 (4th Cir. 1968), cert. denied, 402 U.S. 978, 91 S.Ct. 1641, 29 L.Ed.2d 145. United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed. 2d 434 (1971), involved pre-Marchetti-Grosso forfeiture proceedings brought against one who had been previously convicted of violating the gambling tax and registration statutes by failing to submit the required forms and pay the tax. The Court held that Marchetti and Grosso should be applied retroactively to require reversal of the forfeiture since the appellant "had the Fifth Amendment right to remain silent in the face of the statute's command that he submit reports which could incriminate him. In the absence of a waiver of that right, he could not be properly prosecuted at all." 401 U.S. at 723, 91 S.Ct. at 1046, 28 L.Ed.2d at 440. See also, United States v. Lucia, 416 F.2d 920 (5th Cir. 1969), aff'd en banc, 423 F.2d 697 (1970), cert. denied, 402 U.S. 943, 91 S. Ct. 1607, 29 L.Ed.2d 111 (1971).

However, Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), decided the same day as U.S. Coin & Currency, leaves unresolved the question whether Marchetti and Grosso should be applied retroactively in all contexts. Mackey upheld the use of submitted wagering excise tax returns in a pre-Marchetti-Grosso prosecution for income tax evasion. Four members of the Court² analogized the returns, submitted pursuant to the subsequently reviewed statutory scheme, to evidence seized in a search conducted by means which, while valid at the time of execution, are subsequently declared unconstitutional. E. g., Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (holding Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), non-retroactive); see Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (holding Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) non-retroactive). Of particular relevance to the plurality was the fact that although Mackey's claim was grounded in a violation of the Fifth Amendment, the evidence, like that involved in the retroactive application of a Fourth Amendment exclusionary rule decision, was "concededly relevant and probative," 401 U.S. at 675, 91 S.Ct. at 1164, 28 L.Ed.2d at 410, and that the use of it would be unlikely to undermine the integrity of the fact determination process. See also, e. g., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (holding Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964) non-retroactive), and Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (holding Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) non-retroactive).

The Eighth Circuit has passed on the question before us in Hanon v. United States, 428 F.2d 101 (8th Cir. 1970) (en banc), cert. denied, 402 U.S. 952, 91 S.Ct. 1608, 29 L.Ed.2d 122 (1971). That court rejected the characterization of the question as one under the Fifth Amendment and treated it as a Fourth Amendment issue....