United States v. Sparano

• Citation: 422 F.2d 1095
• Decision Date: 03 March 1970
• Docket Number: Docket 34255.,No. 538,538
• Parties: UNITED STATES of America, Appellee, v. John Carl SPARANO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

422 F.2d 1095 (1970)

UNITED STATES of America, Appellee, v. John Carl SPARANO, Defendant-Appellant.

No. 538, Docket 34255.

United States Court of Appeals, Second Circuit.

Argued February 5, 1970.

Decided March 3, 1970.

James M. LaRossa, New York City, for defendant-appellant.

Lawrence G. Soicher, Asst. U. S. Atty., Eastern District of New York (Edward R. Neaher, U. S. Atty., Eastern District of New York, on the brief), for appellee.

Before WATERMAN and ANDERSON, Circuit Judges, and BARTELS, District Judge.^*

ANDERSON, Circuit Judge:

John Carl Sparano appeals from his conviction by the court and jury on two counts of knowing possession and concealment of counterfeit $20 Federal Reserve Notes, in violation of 18 U.S.C. §§ 472 and 2, for which he was sentenced to concurrent five-year sentences. We affirm.

There was testimony from which the jury could have found the following facts: On the evening of August 4, 1967, a Secret Service undercover agent and one Erani met with Joseph Abbate in an unmarked government car at the corner of Avenue X and East Third Street in Brooklyn at about 8:30 p. m., to purchase an order of counterfeit $20 bills. The agent arranged to pay $240 for $1000 of the counterfeit money, and he delivered $140 in marked currency to Abbate as an advance payment.

Abbate left the car and walked a block to the corner of Avenue X and East Second Street, where he spoke to a confederate, Daniel Tarlen. Then Abbate returned to the government car to wait, while Tarlen drove away with another person in a dark colored 1963 Cadillac bearing license plate BK-7045. Tarlen returned to the government car alone, some fifteen minutes later, and handed the Secret Service agent fifty counterfeit bills, all bearing the same serial number. At a prearranged signal, five other agents, who had been watching, closed in and arrested both Abbate and Tarlen.

Abbate and Tarlen were taken to Secret Service Headquarters in Manhattan. Three of the agents returned to the block of East First Street between Avenue X and Avenue W, in Brooklyn, where they sighted the same Cadillac, with the identified license plate, parked in front of a house at 2336 East First Street. After speaking briefly with two boys sitting on the steps of a nearby house, at approximately 11:00 p. m. the agents, with guns drawn, knocked on Sparano's door and identified themselves to the appellant when he opened it. Sparano at once tried to slam the door shut, but the agents forced their way into the house and placed him under arrest. They searched Sparano in the living room, where they had seized him, and found in his pocket the $140 in marked bills which had been delivered to Abbate earlier that evening. Others in the house at the time included one of Sparano's brothers, his father, who was asleep, his mother and three of his friends, including the owner of the Cadillac.

The agents then searched only those portions of the house which Sparano's mother told them were occupied by him. These consisted of a basement bedroom and a portion of a dresser in another bedroom, fifteen to twenty feet distant from the place in the living room where Sparano was arrested, used by Sparano's sister, who was away for the summer. The search of the dresser drawer disclosed seventy-six additional counterfeit bills, fifty of which bore the same serial number as those delivered by Tarlen to the undercover agent.

Sparano, Tarlen and Abbate were indicted together; but Tarlen's case was severed when he was committed for treatment under the Narcotics Addict Rehabilitation Act of 1966. Abbate entered a plea of guilty to one count of the indictment immediately before the trial began.

Sparano moved to suppress the counterfeit bills found in his dresser drawer as the product of an unconstitutional search; but the court ruled that the search for specific evidence in only those portions of the house, which the appellant's mother identified as used by him, was reasonable under the circumstances as incident to a valid arrest. It rejected, however, the prosecution's alternative argument that Mrs. Sparano had consented to a search by designating her son's sleeping quarters and dresser. At the trial, over the defendant's renewed objection, the counterfeit notes were admitted into evidence. This constitutes one of the two principal points presented on this appeal; the other is the defendant-appellant's claim that his Sixth Amendment right to be confronted with the witnesses against him was also violated.

With regard to appellant's Fourth Amendment claim it should first be noted that the search in question took place on August 4, 1967, so that the standards enunciated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed.2d 685 (1969), do not apply because the holding of that case is not retrospective in its effect. United States v. Bennett, 415 F.2d 1113 (2 Cir.1969). As the Court noted in Chimel, 395 U.S. at 755, 89 S.Ct. 2034, 23 L.Ed.2d 685, its prior decisions outlining the permissible scope of a warrantless search were "far from consistent." But whatever the nature of these fluctuating contours, the instant case did not involve the sort of routine, wholesale, exploratory search of rooms, in addition to the one in which the arrest occurred, which was held objectionable under pre-Chimel standards. See Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969). The agents, who searched Sparano's person, after a concededly valid arrest, found marked bills in his pocket which confirmed their belief that he was the supplier of the counterfeit money they had already seized. Under the circumstances, it was reasonable to suppose that Sparano had other counterfeit bills at his quarters; and, in the light of the then governing cases, the agents did not overstep the limits of their authority by ascertaining the particular areas of the house where the appellant's belongings were kept, and by searching them for this specific evidence. Counterfeit money is the kind of evidence which might easily be destroyed. Others, possible confederates, were present in the house, including the owner of the automobile used by Tarlen earlier in the evening. It was not necessary for the agents to leave the house with Sparano, attempt to obtain a search warrant late at night, and return. See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L. Ed. 653 (1950); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Francolino, 367 F.2d 1013 (2 Cir.1966). The seventy-six counterfeit bills discovered in the dresser were, therefore, properly admitted as evidence at the trial.

Appellant's claim that his Sixth Amendment right to be confronted with the witnesses against him was violated is based in part upon a portion of the assistant district attorney's opening statement and in part upon a question and answer on direct examination of Special Agent Walsh of the United States Secret Service, when he was testifying on behalf of the Government. In his opening statement the prosecutor had recounted the facts and events which led up to and included the arrest of Abbate and Tarlen. He then said:

"At the Secret Service office in Manhattan, Mr. Tarlen had a conversation with one of the arresting agents. As a result of that conversation, three Special Agents of the Secret Service went to a location in Brooklyn which was very near the earlier scene where the counterfeit money had passed to the government agent. After the three government agents went to this locale, a neighborhood inquiry was made and it was determined that the man they sought was the defendant John Carl Sparano. After that was determined, the agents proceeded a very short distance to the house which was determined to be his, and parked directly in front of that house was a 1963 black Cadillac automobile, bearing license plate BK-7045, the same car that was sited sic earlier transporting Mr. Tarlen from the scene of the passing of the counterfeit notes."

At the end of the prosecutor's opening statement defense counsel moved for a mistrial on the ground that the jury might infer that Tarlen, who was not available for cross-examination, had identified Sparano as the supplier of the fifty counterfeit bills which Tarlen had turned over to the Secret Service agent. The court denied the motion. During the presentation of the Government's case, the prosecutor in his direct examination of Agent Walsh sought to bring out conversations at Secret Service Headquarters between the arresting agents and Abbate and Tarlen after they had been taken into custody.¹ Counsel for the defendant objected and no testimony was given about the conversations.

The direct examination of Agent Walsh continued as follows:

"Q. Would you tell us please what if anything

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