Appeal from a judgment of the District Court for the Eastern District of New York, Charles P. Sifton, Judge, convicting defendant after a jury trial, on both counts of an indictment charging him with bringing into the United States approximately $10,010 in counterfeit Federal Reserve Notes with the intent to defraud and possessing the notes with intent to defraud, in violation of 18 U.S.C. § 472. Affirmed.
Before Friendly, Mansfield and Meskill, Circuit Judges.
Mario Herbert Gonzalez Caro (hereinafter Gonzalez) appeals from a judgment of the District Court for the Eastern District of New York, convicting him after a jury trial of bringing into the United States $10,010 in counterfeit Federal Reserve Notes with intent to defraud and possessing the same notes with intent to defraud, in violation of 18 U.S.C. § 472. He received concurrent sentences on each count of two years imprisonment, of which all but six months was suspended, and was placed on probation for 18 months. He appeals on the grounds that the search of his suitcase, during which the counterfeit was found and seized, violated the Fourth Amendment; that the Government improperly offered evidence of his silence during the search as part of its direct case; and that he was deprived of the effective assistance of counsel at trial.
The facts concerning the search were developed at a pre-trial suppression hearing. Inspector Kowal, who had nine years of experience with the Customs Service, testified that on December 8, 1979, he was assigned to John F. Kennedy International Airport, where he encountered Gonzalez after the latter had deplaned from a flight from South America. After asking a series of standard questions,*fn1 Kowal requested that Gonzalez open his suitcase for examination. Kowal's suspicions were aroused because although Gonzalez had stated that he was traveling in connection with his custom jewelry business, the inspector saw nothing in the suitcase that would connect him with that occupation. Kowal reached under the clothing in the suitcase and ran his fingers along the bottom "to check the depth, the hardness of the covers to see if there were any lumps, irregularities, and so forth." He felt "ridges, as if there were rows of something, and it did not feel as a smooth bottom usually does." He removed the clothing from the suitcase and found that the sides felt heavier and thicker than they ordinarily would. Kowal then conferred with his supervisor, Senior Customs Inspector Kane, who also examined the suitcase and agreed that it felt "lumpy" and "heavier than usual".
Kowal and Kane then took Gonzalez to a private room for a closer examination of the suitcase. After the inspectors confirmed that the baggage tag on Gonzalez' ticket corresponded to the tag on the suitcase, Kane used a knife to puncture a small hole in the lining. Kowal placed his nose within an inch of the hole and smelled fresh glue. The inspectors peeled off the lining at one corner of the suitcase and a layer of cardboard underneath the lining until they saw "white" (presumably the white edge around the counterfeit bills) and then the edge of one of the bills. The inspectors then removed the lining on each side of the suitcase and found four thin rows of what appeared to be Federal Reserve Notes wrapped in plastic and glued to each side of the suitcase. The inspectors determined that the serial numbers on many of the bills were the same. On this record the district judge, although rejecting the Government's argument that the initial puncturing of the lining of Gonzalez' suitcase was valid as a routine border search, denied the motion to suppress on the ground that the puncturing was reasonable in light of the suspicious circumstances.
With this much established and the counterfeit character of the notes being readily susceptible of proof, the only substantial issue left for trial was whether Gonzalez knew that his suitcase contained the counterfeit.
In his opening statement defense counsel, Mr. Nooter, predicted that the Government would not be able to prove that Gonzalez "knew that he was in possession of the counterfeit currency in the suitcase." Tr. 72. Mr. Nooter then stated that he would prove that his client did not know the counterfeit notes were in the suitcase and would explain how Gonzalez "could have a suitcase without knowing what was in the lining". Tr. 72-73. The Government called Inspector Kowal, who testified substantially as he had at the suppression hearing. His direct examination concluded as follows:
Q: Now, when Inspector Kane began by putting the knife I think you described puncturing the small hole with his knife, were you present?
Q: Was the defendant Mr. Gonzalez present?
Q: As Inspector Kane was puncturing his suitcase with the knife, did Mr. Gonzalez say anything?
Q: As Inspector Kane was cutting the side and peeling back the lining of the suitcase marked as Government's Exhibit 1, did Mr. Gonzalez say anything?
A: No, he didn't. He didn't say a word.
Q: As Inspector Kane and yourself tore out the lining of Government's Exhibit 1, did Mr. Gonzalez say anything?
Tr. 87-88. Defense counsel made no objection at this time.
Later that day, Mr. Nooter moved to strike the portion of Inspector Kowal's testimony quoted above. Tr. 109-110. He moved in the alternative for a curative instruction to the effect that the defendant's silence "should be scrutinized very closely because silence can mean any number of things, either innocence or guilt, and ... has very little probative value". Tr. 110. No mention was made of the privilege against self-incrimination. Judge Sifton did not grant either motion but said that he would permit defense ...