UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
April 18, 1979
UNITED STATES OF AMERICA, APPELLEE,
ADA MESSINA, APPELLANT.
Appeal from the United States District Court for the Eastern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge., HONORABLE J. JOSEPH SMITH, Circuit Judge., HONORABLE LLOYD E. MacMAHON, District Judge, sitting by designation.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
1. Inasmuch as Messina's arrest occurred before the date of our decision in United States v. Reed, 572 F.2d 412 (2d Cir.), cert. denied, 99 S. Ct. 283 (1978), and we have declined to apply Reed retroactively, see United States v. Corcione, No. 78-1265, slip op. at 1223 (2d Cir. Jan. 26, 1979), the warrantless entry into her home must be upheld.
2. There was a sufficient basis to justify issuance of the search warrant even after the tainted evidence is excluded from consideration. See United States v. Marchand, 564 F.2d 983 (2d Cir. 1977); United States v. Ochs, No. 78-1163, slip op. at 1667-68 (2d Cir. March 13, 1979).
3. Read as a whole, Judge Nickerson's charge on conscious avoidance of knowledge was balanced and was certainly not plain error. See United States v. Bright, 517 F.2d 584, 588 (2d Cir. 1975); United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir.), cert. denied, 414 U.S. 821 (1973).
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