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United States v. Gillette

decided: July 17, 1967.


Waterman and Smith, Circuit Judges, and Levet,*fn* District Judge.

Author: Smith

J. JOSEPH SMITH, Circuit Judge.

Appellant was convicted after trial by jury in the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge, of conspiring to violate and violating various alcohol tax laws relating to the operation of an illegal still and the possession of alcohol without proper tax-stamped package (26 U.S.C. ยงยง 5178-5180; 5205; 5601, 5602, 5604).*fn1 On this appeal, appellant claims: (1) the alcohol seized from the garage at 160 Attorney Street, New York City, pursuant to a search warrant should have been suppressed because the affidavit supporting issuance of the warrant was not based on probable cause; (2) the trial court erred in refusing to grant appellant a suppression hearing to determine, outside the jury's presence, the existence of probable cause; (3) the court erred in refusing to ask the jury panel on voir dire whether they understood the "reasonable doubt" and "presumption of innocence" standards, whether they would "hold out" for acquittal if they believed the government had not met its burden, and whether they felt an accused was guilty merely because he was charged; (4) appellant was prejudiced by the introduction of fingerprint records to verify his handwriting. We find no merit in these claims and affirm the judgment.

Investigators of the Alcohol Tax Unit had appellant, a persistent alcohol tax violator, under surveillance for some time. Following him from his home on Staten Island on his trips at very early morning hours, they found that he traveled by circuitous routes, obviously seeking to shake off pursuit, to Brooklyn, across to lower Manhattan, up the West Side, doubling back downtown. After a number of attempts, the agents finally learned his destination to be a garage on Attorney Street on the lower East Side. He was accompanied on his trips by Charles Musillo, another persistent violator. He was seen driving out of the garage a loaded truck which had appeared light when it entered. Agents smelled the odor of fermenting mash through a mail slot in the garage door and from a vent on the rear roof of the garage, where a noise of running motors was heard. A search warrant was obtained, and at about 5:30 one morning appellant was observed to unlock the garage door with a key, appellant and Musillo entering through a small door contained in the large garage door. When the large door was raised, the agents entered and found appellant in the driver's seat of a truck, with the motor running. Both men were arrested, the truck was searched, and 144 gallons of alcohol were found on the truck in glass jugs without tax stamps. Empty sugar bags were also on the truck. Search of appellant had produced keys to a fuse box lock, the rear door of the truck and the garage door. Behind heavy refrigerator type doors in a partition to the rear of the garage was a 1,000 gallon pot column still, four 2,000 gallon mash vats, 3,700 gallons of fermenting mash, tanks, cartons, empty jars, and other distilling equipment. No real question is raised as to the sufficiency of the evidence of the elements of each of the crimes charged, if the arrest and search were legal.

(1) and (2). The United States Commissioner issued the search warrant on the basis of an affidavit, incorporating an annexed sheet, which was sworn to by Investigator Zimmerman.*fn2 The affidavit in its annexed sheet stated that two agents smelled the mash on two separate occasions. The smelling of mash alone has often been held sufficient to constitute probable cause of the operation of an illegal still, e.g., Monnette v. United States, 299 F.2d 847, 850 (5th Cir. 1962), United States v. Seiler, 40 F. Supp. 895, 896 (D.Md.1941); and, at the least, is a very strong factor in determining probable cause, United States v. Ventresca, 380 U.S. 102, 111, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); see Garhart v. United States, 157 F.2d 777 (10th Cir. 1946); Chapman v. United States, 365 U.S. 610, 615, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961) (by implication). Anyway, probable cause for the issuance of a warrant is patently present here when the smell of mash is coupled with the sworn statements regarding the evasive activities of appellant and Musillo, both frequent violators of the alcohol tax laws, their presence on the premises, once with a truck which appeared heavily laden on departure, and information apparently anonymously given. Beck v. State of Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964).

Prior to trial, appellant moved pursuant to Fed.R.Crim.P. 41(e) to suppress the proceeds of the search. The basis of the motion was an affidavit of his attorney alleging that, "Right next door to the subject premises, there is located the Chelsea Pickle Company which emits a vinegar odor stronger than and which would obscure any mash odor." Judge Thomas F. Murphy's pretrial denial of the motion without a hearing was repeated by Judge Palmieri at trial. For the purposes of decision in Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964), the Supreme Court assumed that an attack might be made on a search warrant valid on its face which was supported by an affidavit establishing probable cause. See generally, United States v. Halsey, 257 F. Supp. 1002 (S.D.N.Y.1966). Although we have repeatedly stated that "outright perjury by government agents is not a common occurrence," United States v. Tucker, 380 F.2d 206, at page 212 (2d Cir. June 28, 1967), we by no means foreclose the possibility that, in the appropriate circumstances, a hearing should be held to establish the veracity of sworn allegations in an affidavit which is adequate on its face. See, United States v. Freeman, 358 F.2d 459, 463 n. 4 (2d Cir. 1966). The case at hand, however, does not present such circumstances. The affidavit submitted for appellant is insufficient in that it does not, for example, allege personal knowledge on the part of appellant's attorney; accordingly, there was no factual issue to be resolved and the denial of a hearing was correct. Cheng Wai v. United States, 125 F.2d 915 (2d Cir. 1942); United States v. Casanova, 213 F. Supp. 654 (S.D.N.Y.1963). Furthermore, it developed at trial that Zimmerman smelled the mash through a mail slot and from a vent in the roof; so, even had the attorney's affidavit been sufficient, it is highly doubtful that appellant could have proved that the pickles outsmelled the mash.

(3). The trial court has wide discretion in examining prospective jurors. United States v. Bowe, 360 F.2d 1, 9 (2d Cir.), cert. denied 385 U.S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966); United States v. Dennis, 183 F.2d 201, 222 (2d Cir. 1950), aff'd 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951). We find no abuse of that discretion here. The cases which appellant cites to show that the instant refusal to ask certain questions was an abuse of discretion lend him no support. Grandsinger v. United States, 332 F.2d 80 (10th Cir. 1964) (per curiam), did not hold such refusal to ask whether the jurors understood the reasonable doubt and presumption of innocence concepts proper only when the panel was instructed as to these standards but rather that the court need not so inquire when it refers to these concepts and, as here, later charges in detail. Wolfe v. Nash, 205 F. Supp. 219, 225 (W.D.Mo.1962), aff'd 313 F.2d 393 (8th Cir.), cert. denied 374 U.S. 817, 83 S. Ct. 1713, 10 L. Ed. 2d 1041 (1963), did not intimate that the refusal to ask whether the jurors would "hold out" was proper only when the panel was generally asked this question, but rather that such questions were improper in view of a juror's right to change his mind and duty to reconsider his initial impressions, as well as the presumption that jurors will obey the court's instructions concerning reasonable doubt. See also, Gorin v. United States, 313 F.2d 641, 647 (1st Cir.), cert. denied 374 U.S. 829, 83 S. Ct. 1870, 10 L. Ed. 2d 1052 (1963), not cited by appellant, which discusses the proper conduct of voir dire, holding that the refusal to ask particular questions such as those in issue here, including refusal to ask whether the jurors would presume guilt from the accusation, was not an abuse of discretion. We agree.

(4). Any possible prejudice derived from the reference to fingerprint cards was minimized by the excision in the exhibit of all but the handwriting and the court's charge to disregard any reference to fingerprints. Cf. Delli Paoli v. United States, 352 U.S. 232, 242, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957). In the absence of any stipulation that defendant had signed the cards, expert testimony as to the signature on the fingerprint cards was properly allowed to establish by handwriting comparison the identity of appellant as the renter of a Hertz truck used in the operation. No other contentions of appellant merit discussion.

Judgment affirmed.


Judgment ...

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