Appeal by Joseph Mauro from conviction for possession and transfer of counterfeit notes, and for conspiracy to deal in counterfeit money, after trial before a jury in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. Affirmed.
Kaufman, Chief Judge, Anderson and Mulligan, Circuit Judges.
The inevitably uneven pace at which amendments to the Federal Rules of Criminal Procedure must be adopted presents us in this case with a novel question concerning the requirement of timeliness for motions to suppress. Joseph Mauro, convicted on several charges of counterfeiting, attacks on this appeal the denial of his suppression motion which was made for the first time during the course of trial. We affirm.
A statement of the convoluted facts will assist in making clear that the motion to suppress was untimely. Shortly after his release from prison in June of 1970, Louis Stoppiello found himself in need of money. Unable to acquire sufficient income to satisfy his needs through the customary channels, he turned to borrowing. Accordingly, he was introduced by Sal Seminara to Joseph Mauro, who loaned sums of money to Stoppiello. By October of 1971 Stoppiello had fallen far behind in his steep interest payments, and he and Mauro commenced discussions on ways in which the repayment might be made. The method ultimately arrived at proved satisfactory to both, though it contributed little to the solution of the current problem of inflation. Mauro undertook to supply Stoppiello with counterfeit bills in denominations of $10 and $20, and Stoppiello sold them at about 30% of the face amount. The proceeds of the sales were applied toward accrued interest on the debt owed Mauro.
The pressures of the task of distributing counterfeit money proved to be somewhat wearing on Stoppiello, leading to his admission to the Brooklyn Veterans' Administration Hospital. But his hope that he could be shielded in a hospital setting from the strains of his venture were short-lived, for on December 10, 1971 he received a visit there from his friend Seminara, who was accompanied by a man introduced as "Mickey." Unknown to Stoppiello, Seminara had agreed to cooperate with the Government, and his companion was in fact Secret Service agent Michael Reilly. Always alert to new business opportunities, Stoppiello sold Reilly eight $10 bills, telling him at the same time that larger transactions could be arranged, although the price would have to be set by his supplier, "Joe." In a later telephone conversation, Stoppiello quoted Joe's figure at $27 per $100 face amount. The two men met again on December 30, after Stoppiello's release from the hospital, at which time Reilly was given two more counterfeit bills. Shortly thereafter, they agreed to exchange $5000 in false bills on January 4, 1972, at Bay Parkway and 72nd Street in Brooklyn.
On the morning of January 4, Stoppiello met with Mauro and one Lenny Bilz at Anton's Luncheonette, a store located close to where the transaction was to take place. When Reilly failed to appear at the scheduled hour, Stoppiello telephoned him and arranged a new appointment for 2:00 P.M. the same afternoon. Mauro in the meantime had become apprehensive over Reilly's trustworthiness, and so he instructed Stoppiello and Seminara, who had just arrived, that they were to make the transfer. Accordingly, Stoppiello removed the money from between some magazines in the back seat of Mauro's light green 1967 Mustang which was parked nearby, and took it to the basement of his apartment house located opposite from Anton's Luncheonette.
Shortly after 2:00 P.M. Reilly, accompanied by agent Rick Zaino, arrived at Bay Parkway and 72nd Street in a blue Cadillac. Approximately seven other agents were stationed in the immediate vicinity. Stoppiello and Seminara appeared momentarily, then departed to retrieve the counterfeit bills from Stoppiello's apartment, as Reilly drove into a nearby gasoline station to telephone his office. While he was on the telephone, Mauro drove into the station in his green Mustang, accompanied by Bilz. Mauro watched Reilly intently during his conversation, then walked over to him, as he was leaving the telephone, and frisked him. Had Reilly been carrying a gun -- which he was not -- it would have confirmed Mauro's suspicion that he was an agent. After the two had returned to their respective cars, Mauro maneuvered his Mustang to within two car lengths of Reilly's Cadillac, where he remained throughout the unfolding events.
Stoppiello and Seminara soon returned, and Seminara entered the Cadillac, carrying the money in a brown paper bag. Reilly then opened the trunk of his car -- a signal to the seven agents nearby. Mauro and Bilz were immediately arrested and simulated arrests were also made of Reilly, agent Zaino, and Seminara. Stoppiello, who had fled, was apprehended at his apartment several hours later. As a result of the foregoing, Mauro's Mustang was seized and delivered to the Custom's Bureau Seizure Room for forfeiture pursuant to 49 U.S.C. §§ 781, 782 (1970).
After his arrest and appropriate warnings, Stoppiello spoke freely with the agents about Mauro's involvement, but refused to testify against Mauro. Apparently because the Plan for Achieving Prompt Disposition of Criminal Cases in the Eastern District of New York might require dismissal of the charges for failure to proceed to trial against Mauro, the complaint against him was dismissed upon the Government's motion on February 15, 1972.*fn1 Stoppiello, however, was indicted, and on March 3 he agreed to cooperate. He informed agent John Viggiano that the steering column of Mauro's Mustang had several counterfeit bills hidden in it. Without a warrant, Viggiano quickly went to Maxford's Garage in Manhattan, where the car was stored, and extracted from the steering column five $10 bills whose serial number matched those printed on the money Seminara had given Reilly on January 4. Ten days later Mauro petitioned for reclamation of the car, and upon its return repaired the steering column at a cost of $150. The forfeiture proceedings which had been instituted were then abandoned by the Government.
Despite these adversities, Mauro continued undaunted in his lending activities. He continued to meet with Stoppiello, pressing him for the still unpaid principal and interest. Stoppiello, whose sentence was adjourned after a plea of guilty to passing two counterfeit notes on December 30, 1972, agreed to continue his cooperation with the Government by concealing a small transmitting device on his person to record his conversations with Mauro. Tapes of their discussions on June 15, June 28, and July 12, 1972 provided full substantiation of Mauro's involvement in the January 4 transaction. In the course of the July 12 conversation Mauro also stated that he and his then attorney, George Rosenbaum, had learned of Stoppiello's role in the discovery of the bills in the steering column of the Mustang, from the files at the Bureau of Customs.
Because of Stoppiello's belated testimony and the information contained in the tapes, an indictment was returned against Mauro on July 13, 1972, charging possession and transfer of the 500 counterfeit bills which Seminara had given Reilly, and conspiracy to possess and sell counterfeit money.*fn2 After pre-trial proceedings on January 8, 1974, Aaron Schacher -- who replaced Rosenbaum as Mauro's counsel -- made extensive requests relating to the taped conversations. The Government furnished Schacher with a full transcript of the conversations on January 14, 1974 and Schacher and Mauro listened to the tapes on January 26, 1974. On March 4, seven days after the trial had begun, Mauro moved -- on the basis of material supplied several days before by the Government pursuant to 18 U.S.C. § 3500 -- to suppress the money found in the steering column of his car. The district court denied this motion, finding the warrantless search and seizure reasonable since the Mustang had lawfully been seized for forfeiture, and also because there had been no unreasonable delay in the forfeiture proceedings. Moreover, Judge Mishler held that the motion to suppress was untimely. Mauro was subsequently convicted of conspiracy to deal in counterfeit money, 18 U.S.C. § 371 (1970), possession of 500 counterfeit $10 Federal Reserve Notes, 18 U.S.C. § 472 (1970), and transfer of these 500 notes, 18 U.S.C. § 473 (1970). Because we agree that the motion to suppress was untimely we affirm the conviction.
A proper understanding of new Fed.R.Crim.P. 41 (f), governing motions to suppress in the federal district courts, requires a brief examination of its predecessor, old Rule 41(e), as well as a cursory review of the amendments of the Federal Rules which may have left the meaning of present 41(f) unclear. Prior to 1972, Rule 41(e), governing motions both for return of property and for suppression, provided:
A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained . . .. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware ...