Appeal from judgment of conviction for possession of heroin in violation of 21 U.S.C. §§ 841(a) (1), 846, entered by United States District Court for the Eastern District of New York (Nickerson, J.). Held: automobile search did not violate Fourth Amendment; improper prosecution summation did not deprive appellant of fair trail. Conviction affirmed.
Before Timbers and Newman, Circuit Judges, and Sofaer, District Judge.*fn*
This appeal-like far too many reaching this Court-centers on improper statements made by a prosecutor in his summation to a jury. Such misconduct has gone largely unremedied, for appellate courts are understandably reluctant to reverse convictions merely to discipline prosecutors. This case, too, is one in which the prosecutor's improper remarks do not warrant reversal of the conviction. The time has come, however, to explore possible sanctions for prosecutorial misconduct other than reversing convictions. We believe that alternative sanctions can and should be fashioned, and that an exploration of their use may prove to be more effective than the unheeded condemnations expressed in prior opinions.
Appellant's indictment grew out of an unorthodox scheme to smuggle five kilograms of heroin into the United States through John F. Kennedy International Airport. On October 22, 1979, a brown, soft-sided, zippered suitcase arrived at the airport on an Alitalia Airlines flight from Rome. The suitcase carried no personal identification tag and no baggage claim-check; the only identifying feature was the brandmark "Airway." No one claimed the suitcase, and it was placed in the Alitalia section of the leftover baggage room at the airport, an area controlled by the United States Customs Service. On October 23, an Alitalia employee presented the suitcase to a customs agent; the agent examined the bag cursorily, found nothing, and cleared it. The bag was then moved to the Alitalia lost-and-found room. Later that day, another Alitalia employee, Finiello, searched the suitcase in order to identify and locate its owner. As he searched, two plastic bags fell out of a coat in the suitcase. Finiello correctly suspected that the bags contained heroin, and he so advised another employee in the lost-and-found room, Miradoli, as well as the area supervisor. The Alitalia employees returned the suitcase to the left-over baggage room, where a customs inspector examined it and discovered three additional bags of heroin. In all, the suitcase contained five kilograms of heroin, with a wholesale value of.$1.4 million.
The parties disagree as to what transpired between the time that the heroin was discovered and November 15, when appellant Gaetano Modica claimed the suitcase. The prosecution's account is that the suitcase remained unclaimed for about two weeks. Then, on the afternoon of November 12, appellant went to the Alitalia information desk at the airport and contacted an employee named Amato. Appellant gave Amato a note, dated November 1979, and written in Italian on Alitalia stationery. The note was from Morfino, an Alitalia employee apparently stationed in Palermo, Italy. The note asked Amato to assist Morfino's cousin, the bearer of the note. Appellant told Amato that he had arrived on an Alitalia flight from Rome on the previous day and had lost a suitcase. Amato accompanied appellant to the lost-and-found room to search for the bag, but Finiello told them that appellant would need to bring his baggage claim-check, and they left.
On the evening of November 12, appellant and Amato returned to the lost-and-found room. Appellant brought four baggage claim-checks. Miradoli, who had been present with Finiello on appellant's earlier visit, located a bag that matched one of the claim checks. Appellant signed for the bag and then left the room with Amato. Shortly thereafter, they returned, and Amato asked Miradoli to assist appellant on another problem. Amato then left the room, and appellant told Miradoli that he was looking for another bag-a brown, soft-sided, zippered suitcase. He claimed that his aunt had arrived on an October 22 Alitalia flight, but had been too ill to claim the suitcase. Miradoli ascertained from the baggage records that two bags that had arrived on October 22-one black and one brown-had gone unclaimed. He mistakenly told appellant that the brown bag had been returned to Alitalia's lost-and-found department in Rome. Appellant then left the room. Later that day, however, Miradoli rechecked the records and discovered that the brown suitcase had not been returned to Rome; he then realized that appellant was looking for the suitcase that contained the heroin.
On November 15, appellant visited Amato at a travel agency for which Amato moonlighted; appellant had asked for Amato's business card on the twelfth and said that he might purchase airline tickets from Amato there. On the fifteenth, appellant did indeed purchase several tickets from Amato. Appellant again asked for help in locating the brown suitcase from the October 22 flight, and he said that he had determined that the bag had not been returned to Rome. (At trial, Amato was unable to recall the details of this conversation, and the prosecution introduced portions of his grand jury testimony.) Appellant described the suitcase as light brown and carrying no claim check. Appellant handed Amato a note on blue paper with "RWUY" written on it to describe the brandmark on the suitcase; Amato interpreted those letters to be a phonetic approximation of "Airway." Appellant told Amato that the suitcase contained something valuable and that someone might get in trouble if the bag were not found; he gave Amato his home telephone number and left.
When Amato arrived at work in the Alitalia terminal later that day, he was interviewed by Drug Enforcement Administration ("DEA") agents as a suspect in their investigation of the October 22 suitcase. After recounting his conversation with appellant, Amato was directed to phone appellant and inform him that his suitcase had been found.*fn1 Appellant returned Amato's call at 10:30 p.m., and Amato told him to come and claim the suitcase that evening. Appellant arrived around 11:00 p.m., and Amato led him to the hallway outside the lost-and-found room. DEA agents had lined up a half-dozen suitcases there; appellant looked the bags over, chose the October 22 suitcase, and departed with it. Under extensive surveillance, appellant drove to a restaurant and, after about two hours, returned to his home. DEA agents there arrested him and seized the suitcase from the trunk of his car.
The prosecution's theory of the crime was that appellant, working with confederates in Italy, had concocted this unusual scheme to smuggle the heroin past the customs agents. The perpetrators had deliberately removed all identification from the bag, hoping for a cursory inspection in the left-over baggage room. As soon as appellant arrived from Italy, he began his efforts to obtain the suitcase.
Appellant's defense was in essence that he had been framed by Amato. Appellant contended that Amato, probably in conjunction with other Alitalia employees, had planned to smuggle in the suitcase. When the heroin was discovered and Amato interrogated as a suspect, he needed to shift the blame onto someone else, and appellant unfortunately happened along at that time. Appellant was not seeking a suitcase from an October 22 flight, but rather was seeking a second lost bag from his November 11 flight. When Amato called appellant on November 15, he told appellant that he had located that second suitcase. At the airport, appellant claimed, Amato pointed to the suitcase and told appellant that he need not examine it because it was his. Thus, appellant unwittingly claimed the suitcase pursuant to Amato's scheme.
Appellant was indicted on three counts: attempting to possess with intent to distribute five kilograms of heroin, 21 U.S.C. §§ 841(a)(1), 846; possessing with intent to distribute thirty grams of heroin, 21 U.S.C. § 841(a)(1); and importing five kilograms of heroin into the United States, 21 U.S.C. §§ 952(a), 960(a)(1). On October 28, 1980, the jury convicted appellant of the first two counts and acquitted him of the third. The trial court sentenced appellant to ten years imprisonment and fifteen years special parole on each of the two counts, the sentences to run concurrently.
II. The Warrantless Search
When the DEA agents arrested appellant in front of his house, they conducted a warrantless search of the trunk of his automobile and found the suitcase. Appellant moved below to suppress the suitcase, on the ground that the agents needed a warrant to enter the trunk. The district court properly denied appellant's motion. The agents knew that the automobile was carrying heroin, and they therefore had probable cause to believe that the automobile could be seized and forfeited pursuant to 49 U.S.C. § 782 and 21 U.S.C. § 881.*fn2 They were entitled to search the trunk without a warrant even though they did not seize the automobile. United States v. Panebianco, 543 F.2d 447, 456 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S. Ct. 1128, 51 L. Ed. 2d 553 (1977); United States v. La Vecchia, 513 F.2d 1210, 1215-17 (2d Cir. 1975); United States v. Francolino, 367 F.2d 1013, 1018-22 (2d Cir. 1966), cert. denied, 386 U.S. 960, 87 S. Ct. 1020, 18 L. Ed. 2d 110 (1967).
The search of the suitcase itself, in contrast to the search of the trunk, was a minor issue below. See Transcript at 17-30, 163-71. Although it is unclear whether appellant objected to this search, the trial judge indicated that the suitcase, once taken from the trunk, was properly searched under the "controlled delivery" theory of United States v. Bulgier, 618 F.2d 472 (7th Cir.), cert. denied, 449 U.S. 843, 101 S. Ct. 125, 66 L. Ed. 2d 51 (1980), and United States v. Andrews, 618 F.2d 646 (10th Cir.), cert. denied, 449 U.S. 824, 101 S. Ct. 84, 66 L. Ed. 2d 26 (1980). Those cases hold that, after private airline employees discover narcotics in a package and turn it over to the police, the police may make a controlled delivery of the package to the intended recipient and then search it without a warrant. The trial judge properly applied those cases here to uphold the search. See United States v. De Berry, 487 F.2d 448, 450-51 (2d Cir. 1973).
On appeal, appellant has not pressed his objection to the search of the suitcase. Subsequent to the argument of this case, however, the Supreme Court ruled that "a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else." Robbins v. California, 453 U.S. 420, 101 S. Ct. 2841, 2845, 69 L. Ed. 2d 744 (1981) (plurality opinion). Although the search of the suitcase here was supported by the strongest probable cause imaginable (i. e., the agents knew that the suitcase contained heroin because they had placed it there), the Supreme Court appears to have ruled that the existence of probable cause cannot excuse the need for a warrant. Id. at -- , 101 S. Ct. at 2844-45.
Nevertheless, Robbins does not require suppression of the contents of the suitcase here. As a threshold matter, appellant lacks standing to object to the search of the bag. Appellant has insisted throughout the trial and the appeal that the suitcase is not his and that he was duped into claiming it. By his own admission, therefore, appellant could not have had any expectation of privacy as to the suitcase's contents. Thus, even if the search was illegal, it did not violate appellant's Fourth Amendment rights. See Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 2561-62, 65 L. Ed. 2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 2552-55, 65 L. Ed. 2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 133-40, 99 S. Ct. 421, 425-29, 58 L. Ed. 2d 387 (1978); United States v. Goshorn, 628 F.2d 697, 699-701 (1st Cir. 1980).
The rationale of Robbins, moreover, is inapplicable to this case. In Robbins, the warrantless search of the luggage compartment was permissible under the "automobile exception"; but the Court held that the two factors underlying that exception-the inherent mobility of an automobile and the diminished expectation of privacy that surrounds it-do not justify warrantless searches of closed containers inside the automobile. -- - U.S. at -- , 101 S. Ct. at 2845. Here, by contrast, the warrantless search of appellant's automobile was permissible because the car was subject to statutory forfeiture. Once the automobile was seized, appellant lost any expectation of privacy, at least as to the very article contained in the car that justified the forfeiture. Cf. United States v. Zaicek, 519 F.2d 412, 414-15 (2d Cir. 1975) (reversing suppression of contents of attache case found in trunk; search was permissible because car was properly seized). In fact, the heroin and the suitcase were themselves subject to forfeiture as a controlled substance and its container, and therefore "no property right ... exist(ed) in them." 21 U.S.C. § 881(a) (1), (3); see United States v. Ledesma, 499 F.2d 36, 39-40 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S. Ct. 501, 42 L. Ed. 2d 298 (1974).
Finally, even if Robbins were construed or extended to reach the situation presented here, appellant would not be entitled to reversal. Robbins would likely not be applied retroactively to require suppression of evidence where probable cause for the search existed. Its application here would have no deterrent value, but only demoralizing effect. See generally United States v. Peltier, 422 U.S. 531, 535-39, 95 S. Ct. 2313, 2316-18, 45 L. Ed. 2d 374 (1975); United States v. Reda, 563 F.2d 510, 511-12 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S. Ct. 1617, 56 L. Ed. 2d 65 (1978). Moreover, any error in admitting the contents of the suitcase was harmless: appellant conceded that he had claimed the suitcase in question; the suitcase itself was properly seized from the trunk of his car; and the agents and airline personnel involved testified without contravention that the suitcase seized was the same one that appellant had claimed, in which the heroin had been found, and in which a heroin exemplar had been left. Modica would therefore have been proved to have possessed heroin even if the heroin left in the suitcase had not been introduced. Cf. United States v. Cirillo, 499 F.2d 872, 888 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S. Ct. 638, 42 L. Ed. 2d 653 (1974) (affirming heroin conviction despite absence of direct proof that paper bag contained heroin; "There was ample circumstantial evidence that the bag contained heroin.")
III. The Claim of Prosecutorial Misconduct
The central thrust of this appeal is that the prosecutor's improper statements in summation deprived appellant of a fair trial.*fn3 His summation was indeed improper in several respects. Nevertheless, ...