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United States v. Ochs

decided: March 13, 1979.

UNITED STATES OF AMERICA, APPELLEE,
v.
GEORGE OCHS, DEFENDANT-APPELLANT.



Appeal from a judgment of the District Court for the Southern District of New York, Irving Ben Cooper, Judge, convicting appellant, after a jury trial, on seven counts of an indictment and sentencing him for a total of twenty-three years. Affirmed.

Before Friendly, Mansfield and Meskill, Circuit Judges.

Author: Friendly

George Ochs was the subject of a seven count indictment filed in October, 1977 in the District Court for the Southern District of New York. Count One charged him with the use of extortionate means to collect a loan he had made to Debbie McElroy, in violation of 18 U.S.C. § 894. Count Two charged that he had obstructed justice by endeavoring to influence witnesses subpoenaed to testify before a grand jury, in violation of 18 U.S.C. § 1503. Counts Three through Five charged that he had falsely subscribed income tax returns for 1971, 1972 and 1973, in violation of 26 U.S.C. § 7206(1) by claiming personal exemptions to which he knew he was not entitled. Count Six charged him with failure to file his 1974 income tax return, in violation of 26 U.S.C. § 7203, and Count Seven charged him with evading his 1974 federal income taxes, in violation of 26 U.S.C. § 7201.

The Government's proof at a trial before Judge Cooper and a jury sufficiently demonstrated that during the years 1974 through 1976 Ochs owned and operated a New York City massage parlor and conducted a loansharking business and that in the course of his loansharking activities Ochs threatened to murder Debbie Frank McElroy, a prostitute whom he employed at his Studio One massage parlor, for failure to make interest payments on a usurious loan. The evidence further revealed several violations of the federal income tax laws. On his 1971, 1972, and 1973 tax returns Ochs claimed false exemptions for a non-existent wife and several children, and in 1974 Ochs received $25,000 in income from his prostitution and loansharking businesses which he did not report; indeed Ochs filed no tax return for 1974. Finally, while Ochs was being investigated by a federal grand jury sitting in the Southern District of New York, he approached witnesses who were subpoenaed to appear before the grand jury and instructed them to lie when questioned about payments of interest made on loans. Ochs instructed the witnesses in the alternative to refuse to testify before the grand jury by asserting their Fifth Amendment privilege.

The jury found Ochs guilty on all counts. Judge Cooper sentenced him to consecutive terms of imprisonment of seven years on Count One, five years on Count Two, three years on each of counts Three, Four and Five, and two years on Count Seven, for a total of twenty-three years.*fn1

I. Search and Seizure

The point for reversal most strongly pressed by Ochs is that he was the subject of an illegal search. After a two day hearing, the district court rendered an opinion denying suppression. 461 F. Supp. 1 (1978). The circumstances were as follows:

While cruising in a patrol car in the afternoon of September 5, 1975, in the vicinity of the B. Altman department store at Fifth Avenue and 35th Street in New York City, Police Officers O'Malley and Kelly were signalled by Theodore Bielefeld, the store's assistant director of security. He informed the officers that a "ring" of men, he believed three, were engaged in cashing stolen American Express travelers' checks and had just passed such checks in the store; that two of them were then seated in a blue Cadillac automobile parked on East 35th Street between Fifth and Madison Avenues and a third, known to Bielefeld as Julian Mitchell was no longer in sight; and that Ochs, whom Bielefeld described, had just brought to the store for refund goods procured by Mitchell with stolen American Express checks on the previous day but "for an unknown reason" had not obtained a refund and had left the refund counter. Bielefeld had observed Ochs enter the Cadillac. He showed the officers photostatic copies of stolen American Express checks in the name of O. Grable that had been cashed in the store the previous day and a picture of Mitchell. After Bielefeld had confirmed that the two men were still in the Cadillac, the officers approached it, O'Malley on the driver's side where Ochs was sitting, Kelly on the passenger side where one Liveo was seated. O'Malley perceived that Ochs fitted the description given by Bielefeld and observed that an open knife on the front seat between Ochs and Liveo. One of the officers opened the car and seized the knife, which they identified as a gravity knife, as defined in New York Penal Law § 265.00(5), possession of which is a misdemeanor, and if the possession is by any person previously convicted of crime,*fn2 a felony, Id. § 265.02(1).

The officers then ordered Ochs and Liveo out of the car and frisked them without result. However, as O'Malley was frisking Liveo, he noticed a black object on the left front wheel well floor. Thinking this might be a weapon, he reached in and took possession of the object, which turned out to be a book of American Express checks in the name of O. Grable, identical with those used by Mitchell at Altman's.

After administering the Miranda warnings, the officers questioned Ochs about the ownership of the automobile. Ochs said it belonged to a friend but could not say where the friend was at the time. He produced a New York State driver's license and a registration certificate for the vehicle in the name of Otto Narday. O'Malley claimed that the upper portion of the registration certificate had been tampered with, a "7" having been changed to an "f".*fn3

O'Malley tried to verify the car's legal status through the National Crime Information Computer but static interfered. Obtaining aid from another police car, O'Malley arrested and handcuffed Ochs and Liveo for possession of the gravity knife and removed them to the Midtown South station house. He also arranged to have one of the policemen drive the Cadillac to the same precinct, where it was "vouchered".

After having placed Ochs and Liveo in a detention cell, O'Malley and Kelly searched the Cadillac and made an inventory of its contents. The search yielded a .32 caliber starter's pistol, a simulated revolver, a scanning receiver (a device used to listen to police radio transmissions), a B. Altman sweater, a second book of stolen travelers' checks, and, in the footwells of the back seat, two unlocked briefcases which were taken into the police station. These were examined, without protest, in the presence of Ochs who was nearby in the detention cell.

One of the briefcases contained 8 X 14 ledger sheets, loose "index cards" bearing names and showing what appeared to be loans and payments, four bankbooks, two small notebooks containing loan records, and a calculator. The search of these papers appears to have been in two phases. The police first leafed through the papers to ascertain whether any contraband, money, valuables, etc. were mixed in among them. Then the police read some of the papers, starting with the ledger sheets (the order after that is not clear). The loose ledger sheets were marked "Studio 1". Because he had been to a "Studio 1" before on police calls, Officer O'Malley was aware that there existed in the city a "Studio 1" which was a house of prostitution. However, no expertise was needed to detect that these sheets, containing the first names of women (styled "models"), times in and out, customer and "model" fees, were the records of such an establishment. In going through the bankbooks the officers observed that three of the books were in the names of persons other than Ochs or Narday. The police testified that upon noticing this discrepancy they came to believe that the bankbooks were stolen. The officers also examined the loose index cards, and went through the notebooks, which turned out to contain records of loansharking activities. Officer O'Malley testified that he had come upon a mention of "vig.", a standard term in loansharking for the penalty on a late payment, but, on being confronted with the books, was unable to locate anything more than a "v" before a date and a sum of money in the middle of one of them. All these items were seized. Ochs claims that the reading and seizure of the contents of the briefcase violated his rights under the Fourth Amendment.

The Government's first riposte is a challenge to Ochs' standing. As the briefs were filed and argument was had before the Supreme Court's decision in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the debate was couched in terms of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960) and Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973), with Ochs relying on the fact that he was "legitimately on premises where a search occurr(ed)", 362 U.S. at 267, 80 S. Ct. at 734, this apparently being, in his view, when the automobile was seized. Under Rakas that alone is not sufficient, 99 S. Ct. 421. Now Ochs is obliged to show that he had a legitimate expectation of privacy with respect to the contents of the briefcases, and we must apply the teachings of Rakas in determining what constitutes such an expectation on the part of the users of an automobile.

The Court found that Rakas and King, his companion, who were merely passengers in a car driven by its owner, had no such legitimate expectation with respect to the objects seized in that car since "(t)hey asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized." -- - U.S. at -- , 99 S. Ct. at 433. Ochs also asserted no interest in the property seized. Indeed, he declined the Government's invitation to submit a "possessory affidavit" at the suppression hearing.*fn4 He likewise asserted no proprietary interest in the automobile, although the Government claimed at trial that he was the De facto owner. However, the record shows that he had a possessory interest in the car. As indicated above, see note 3 Supra, the record owner allowed him to use it whenever he wished and Ochs freely availed himself of the privilege. The very grounds on which the Rakas Court distinguished Jones v. United States, supra, work in Ochs' favor. Just as was the case with Jones and his friend's apartment, Ochs "not only had permission to use" the car but "had a key" to it. Except with respect to the owner, Ochs "had complete dominion and control" over the car "and could exclude others from it." We therefore reach his claim on its merits.

Ochs does not seriously dispute that the police had probable cause to arrest him both for trafficking in stolen travelers' checks and for being in possession of a gravity knife. Since we are here dealing with an automobile which, in sharp contrast to the car in Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), Was being used for an illegal purpose and was parked not in the driveway of the owner's house but on a public street, the police were entitled to search it on the spot for additional stolen checks and for weapons, even in areas that were not within "grabbing distance" under Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). See Id. at 764 n.9, 89 S. Ct. 2034; Chambers v. Maroney, 399 U.S. 42, 50-52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). Moreover, the police were not required to make the search at that time and place. The car was illegally parked on a busy New York City street during the afternoon rush hour, and the police were entitled to take it and its occupants to the precinct, where a search could safely be made. Chambers v. Maroney, supra, 399 U.S. at 52 n.10, 90 S. Ct. 1975.

Once the car was there, the police had the same right to make a prompt search of it as they had before, since, given the probable cause to search that existed, "there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained." Chambers v. Maroney, supra, 399 U.S. at 52, 90 S. Ct., at 1981. As said in the plurality opinion in Coolidge, supra, 403 U.S. at 463, 91 S. Ct., at 2036, "where the police may stop and search an automobile under Carroll, (Carroll v. United States, 267 U.S. 132, (45 S. Ct. 280, 69 L. Ed. 543) (1925)) they may also seize it and search it later at the police station." Chambers also teaches that "the mobility of the car (still obtains at the station house) unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured." 399 U.S. at 52, 90 S. Ct., at 1981. In the present case, this "mobility" of the car, and the resultant exigency of the search, were particularly pressing, since Ochs was not the owner of the car, and his friend, Narday, whom Mitchell, the third member of the thieving party, might have alerted, could have claimed it and its contents at any time. See United States v. Frick, 490 F.2d 666, 669-70 (5 Cir. 1973), Cert. denied, 419 U.S. 831, 95 S. Ct. 55, 42 L. Ed. 2d 57 (1974); United States v. Evans, 481 F.2d 990, 994 (9 Cir. 1973). Such a search may include containers which police have probable cause to believe may contain evidence of the crime which justifies the search. See, E. g., United States v. Tramunti, 513 ...


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