The opinion of the court was delivered by: LASKER
On January 20, 1970, defendants John Anthony Masiello and John A. Masiello, Jr., were convicted, after a trial by jury, of various violations of Title 18, U.S.C. § 201(b) and conspiring to commit such violations.
On March 19, 1969, a search and seizure had occurred incident to the arrest of co-defendant Thomas McKeever. A pretrial motion to suppress the evidence seized was denied by Judge Palmieri without a hearing. Certain checks taken during that search were introduced into evidence against the Masiellos and over their objections.
Defendants appealed their convictions, and on November 10, 1970, the Court of Appeals remanded the case for a hearing on the reasonableness of the search of March 19, 1969. The Court of Appeals found that there were "considerable discrepancies" between the affidavits of the government officers and that of an official of the corporation whose checks were seized as to what occurred during the search and seizure. The Court then observed:
"It has been claimed that extensive portions of the enormous amounts of material seized have no possible relevance to the case at hand. It was further alleged that the federal officers conducted 'a general rummage of the suite and a wholesale seizure of the files and records contained therein.' If these characterizations of the facts are accurate, the activities of the federal officers could hardly be considered consistent with the requirements of the fourth amendment. See Von Cleef v. New Jersey, 395 U.S. 814, 89 S. Ct. 2051, 23 L. Ed. 2d 728 (1969) (per curiam); Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876 (1957) (per curiam).
"We therefore conclude that a hearing should be held and findings be made below on the extent and reasonableness of the search and seizure, and remand to request that Judge Lasker conduct such a hearing and report. We meanwhile retain jurisdiction of the appeal."
The standards to be applied in determining the reasonableness of the search are those which existed prior to the ruling in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (Williams v. United States, 401 U.S. 646, 91 S. Ct. 1148, 28 L. Ed. 2d 388, 1971).
The hearing on remand was held on February 19 and February 22, 1971. The witnesses for the government included Edward J. O'Neill, John J. McFadden, and Frank J. Nemic, all of whom were postal inspectors in New York City on the date of the search. Witnesses for the defendants were Thomas Martin, an employee of A.N.R. Leasing Corporation at the time of the search, and Daniel Dillon, past secretary and employee of A.N.R. Leasing Corporation. On the basis of the testimony and the exhibits placed in evidence, I find the following facts:
O'Neill was in charge of the investigation of alleged bribery of postal officials by the defendants. At 10:45 A.M. on March 19, 1969, the indictment against defendants was filed. Knowing, as O'Neill did, before the handing down of the indictment, that John Masiello, Sr. had been convicted of smuggling, John Masiello, Jr. was under indictment for assault, and Thomas McKeever had been convicted of extortion, O'Neill and the Assistant United States Attorney in charge of the case requested bench warrants for the arrest of the Masiellos and McKeever. The court issued the warrants.
At 12:30 Inspectors O'Neill, McFadden, Nemic and Myers arrived at the Masiello office, which was also the office of A.N.R. Leasing Corporation, controlled by the Masiellos, at 332 East 149th Street. They found McKeever on the premises and arrested him.
Prior to the time of the arrest, O'Neill had been informed by Andrew Daly, a postal employee, that A.N.R. Leasing and Coastwide Leasing had paid hotel bills for various postal employees and that the Masiellos had furnished him and another postal employee with free liquor and discount TV sets. In addition, one Bert Brodsky had informed O'Neill that John Masiello, Sr. had stated in his presence that Masiello or one of his companies had made payments on an automobile for Michael DeMasi, a postal employee, and that Masiello, Sr. had advised Masiello, Jr. to cancel further payments when DeMasi was no longer useful to A.N.R.
Accordingly, after the arrest of McKeever, O'Neill asked Thomas Martin, the A.N.R. bookkeeper, where the cancelled checks of A.N.R. and related companies were kept. In response Martin exhibited to O'Neill in room "C" 12 cartons of cancelled checks (each 5 1/2" x 11" by 25") of A.N.R. and other Masiello companies, including Coastwide Leasing, Corporate Systems, Inc., and Set Mar Holding Corporation, totaling approximately 20,000 checks. O'Neill looked through the checks to see if he could find those made to cover the hotel bills of postal employees or those for DeMasi's car or other payments to or for postal employees, but, as he observed, "I looked, but there were so many checks that I just gave up." (Tr., p. 58). The checks were seized.
McFadden asked Martin to show him where the check stub books were. Martin produced nine such books from a file cabinet in his room, five for A.N.R., two for Set-Mar, one ...