United States Court of Appeals
For the First Circuit
No. 98-1129
UNITED STATES OF AMERICA,
Appellee,
v.
HUSSEIN HAMIE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Lenore Glaser, by Appointment of the Court, for appellant.
John M. Griffin, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
January 19, 1999
COFFIN, Senior Circuit Judge. While investigating his
roommate for credit card fraud, law enforcement officers seized
evidence implicating appellant Hussein Hamie ("Hamie") in similar
criminal activities. Hamie, filing a motion to suppress, claimed
that the seizure was unconstitutional. The district court denied
the motion, and the government introduced much of the evidence at
trial. Hamie was convicted of eleven counts involving credit card
fraud, deceptive use of social security numbers and money
laundering. On appeal, he renews his claim that the evidence was
seized unlawfully and also challenges remarks made during the
prosecution's closing argument. We conclude that there was no
error either in admitting the evidence seized or in overruling
Hamie's objections to the prosecutor's argument, and affirm.
I. Background
Federal agents were investigating both Hamie and his
roommate, Anthony El Zein ("El Zein"), for purchasing stolen
cigarettes, and El Zein individually for his participation in a
credit card fraud scheme. During the course of that investigation,
Hamie spoke to a cooperating witness not only about trafficking in
stolen property such as cigarettes, but also about "boosting"
credit cards by sending the card companies checks from accounts
backed by insufficient funds. The government arrested both Hamie
and El Zein on October 25, 1996. Thereafter, federal agents
obtained a search warrant authorizing the search of "the residence
of Anthony El Zein" for evidence of credit card fraud.
Upon entering the deserted apartment, one of the agents
began to search a bedroom. Although it was not clear whether the
room belonged to Hamie or El Zein, the officer discovered credit
cards in each of their names on the nightstand. Also present were
El Zein's address book and Hamie's student organizer. Underneath
the nightstand, the agent found a briefcase with no identifying
tags or other information. When the briefcase was partially
opened, he found a silver box inside. The box was inscribed with
the insignia of American Express, one of the credit card companies
with which El Zein had an account.
The silver box, in turn, contained a Massachusetts state
identification card and two California driver's licenses in the
names of Hussein M. Sleiman and Abbas M. Sleiman, but with Hamie's
picture on them. The agent noticed that Hamie's clothing, his
haircut, and the background were precisely the same in the
identification photos. The officer also found multiple credit
cards in those other names, as well as an index card listing the
corresponding social security numbers. The agent then examined the
rest of the briefcase's contents, which consisted of credit card
applications, courtesy checks, credit reports, and correspondence
relating to Hussein Sleiman, Abbas Sleiman, and Hamie.
At this point, the agent believed the bedroom to be
Hamie's, but continued to search both because he believed the
evidence found in the silver box to be sufficient to constitute
probable cause, and because he thought the room might contain other
evidence relating to El Zein. During the rest of the search of the
bedroom, the officer seized a number of other pieces of evidence
with the names Hussein Sleiman, Abbas Sleiman, and Hamie on them,
as well as items which turned out to be irrelevant, including,
inter alia, a muffin recipe, jeans recently purchased with a credit
card, and personal photographs and negatives.
Based on the new evidence, the government filed a
superseding indictment charging Hamie with credit card fraud,
deceptive use of social security numbers and money laundering.
Prior to trial, Hamie moved to suppress all the evidence seized in
the apartment search, but, after a two-day hearing, the court
denied the motion. During the trial, Hamie claimed that he lacked
the intent to defraud. In its closing argument, the government
stated that there was "absolutely no reason to have false licenses
like this, unless you intend to defraud." After defense counsel
countered in closing argument that the government had not submitted
any evidence that the licenses were actually ever used, the
government argued in rebuttal that the licenses provided Hamie with
identification necessary to obtain cash advances. Claiming that
these comments were impermissible because they related to facts not
in evidence, Hamie objected to both, but the court overruled his
objections.
II. Analysis
A. Search and Seizure
The Fourth Amendment protects individuals "against
unreasonable searches and seizures," and requires that search
warrants "particularly describ[e] the place to be searched, and the
persons or things to be seized." U.S. Const. amend. IV. In
general, if the scope of a search exceeds that permitted by the
terms of a valid warrant, the subsequent seizure is
unconstitutional. See Horton v. California, 496 U.S. 128, 140
(1990). In certain limited circumstances, however, the "plain
view" doctrine permits law enforcement agents to seize evidence in
plain view during a lawful search even though the items seized are
not included within the warrant's scope. See Coolidge v. New
Hampshire, 403 U.S. 443, 465 (1971); United States v. Caggiano, 899
F.2d 99, 103 (1st Cir. 1990).
In order that it remain an exception rather than the
rule, the Supreme Court has established a two-part test for the
plain view doctrine. First, "an essential predicate to [the
seizure of evidence not within a warrant's purview is] that the
officer did not violate the Fourth Amendment in arriving at the
place from which the evidence could be plainly viewed." Horton,
496 U.S. at 136. Second, the doctrine requires that the evidence's
incriminating character be "immediately apparent" to the officer.
Id. The district court's ultimate conclusion that both elements
had been satisfied is reviewed de novo. See United States v.
Pervaz, 118 F.3d 1, 2 (1st Cir. 1997).
We agree that both requirements are easily met on the
facts of this case. Indeed, there is no dispute concerning the
first requirement. The government had a valid warrant to search
the premises. When the agents began searching the bedroom, they
were not sure whom it belonged to; both Hamie's and El Zein's
personal effects were on the nightstand. The officers were
entitled to open the briefcase under that table to search for El
Zein's documents. See United States v. Gianetta, 909 F.2d 571, 577
(1st Cir. 1990) ("Courts have regularly held in searches for
papers, the police may look through . . . briefcases . . . and
similar items and briefly peruse their contents to determine
whether they are among the documentary items to be seized.").
Similarly, they were justified in opening the silver box found
inside, especially because it was inscribed with the insignia of
one of the credit card companies with which El Zein had an account.
See United States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987) ("[A]ny
container situated within a residential premises which are the
subject of a validly-issued warrant may be searched if it is
reasonable to believe that the container could conceal items of the
kind portrayed in the warrant."). Thus, the agents were lawfully
present and authorized to open the briefcase and box to examine
their contents.
The second element also poses no problem. The
incriminatory nature of the evidence in the silver box was
immediately apparent to the agent. The term "immediately apparent"
has been defined as sufficient to constitute probable cause to
believe it is evidence of criminal activity. See Gianetta, 909
F.2d at 578. This standard requires "[t]here must be enough facts
for a reasonable person to believe that the items in plain view may
be contraband or evidence of a crime. A practical, nontechnical
probability that incriminating evidence is involved is all that is
required." Id. at 579 (internal quotations and citations omitted).
From the conversation with the cooperating witness, the
officers had information that Hamie was either aware of or involved
in the credit card fraud scheme. When the agent opened the silver
box, he found licenses with Hamie's picture on them, but in two
other names. The fact that the background, Hamie's clothing and
his haircut were the same in both identification photos increased
the agent's suspicions. In addition, he discovered a number of
credit cards in those other names and the index card with the
corresponding social security numbers. A reasonable person
certainly would have believed that these items provided Hamie with
false identities and hence may have been evidence of credit card
fraud. The agent need not be convinced beyond a reasonable doubt,
but merely have probable cause to believe that the evidence was
incriminatory. See id. at 578-79. We have no doubt that such a
standard has been satisfied here.
Once the agent came across the false licenses and credit
cards, the incriminatory nature of any other items in those names
became immediately apparent to the agent. When the agent found the
other courtesy checks, credit card applications, and credit card
documents, he reasonably and accurately believed that he had
probable cause to seize them, and his decision to do so fell well
within constitutional bounds. See id. at 577 (agent searching for
evidence of insurance and credit card fraud was justified in also
looking for evidence of bank fraud, once he found obvious evidence
of that crime).
As the Supreme Court has stated, "[a]n example of the
applicability of the 'plain view' doctrine is the situation in
which the police have a warrant to search a given area for
specified objects, and in the course of the search come across some
other article of incriminating character." Coolidge, 403 U.S. at
465-66. That scenario is precisely what occurred here. The
district court properly found that the licenses, credit cards and
other credit documents came within the plain view exception.
Hamie attempts to overcome this conclusion by claiming
that the officers were engaged in a fishing expedition or "general
search," pointing to items seized that clearly had no connection
with the criminal charges, such as the muffin recipe and family
photos. He argues that the penalty for such a broad search is
suppression of all items seized. Although courts have periodically
applied the extraordinary and drastic remedy of suppressing all
evidence seized, this has occurred only in extreme situations, such
as when the lawful basis of a warrant was a pretext for the
otherwise unlawful aspects of a search or when the officers
flagrantly disregarded the terms of the warrant. See United Statesv. Foster, 100 F.3d 846 (10th Cir. 1996); United States v. Young,
877 F.2d 1099, 1105 (1st Cir. 1989); United States v. Rettig, 589
F.2d 418, 423 (9th Cir. 1978). That was not the case here. To a
large degree, the evidence seized fell within the limits of the
warrant or the plain view exception. While officers did seize some
items clearly unrelated to the subject of the warrant, the search
was neither a pretext for an attempt to find those items, nor did
the officers flagrantly disregard the terms of the warrant by
seizing a few items beyond its scope. The irrelevant evidence was
a very small tail on a very large dog.
In general, the improper seizure of "many items outside
[a] warrant's scope . . . does not alone render the whole search
invalid and require suppression and return of all documents
seized." Young, 877 F.2d at 1105. Instead, the normal remedy is
to suppress the use of any items improperly taken. See, e.g.,
Waller v. Georgia, 467 U.S. 39, 44 n.3 (1984); United States v.
Abrams, 615 F.2d 541, 550 (1st Cir. 1980) (Campbell, J.,
concurring) ("It is clear that overzealous execution [of a search
warrant] requires suppression only of any materials seized outside
of the warrant's authority (and the fruits of any such improperly
seized material)."). To the degree that the unauthorized items
were improperly seized, there was no need to suppress them because
the government never sought to introduce them at Hamie's trial.
B. Closing Arguments
Hamie's second challenge to his conviction concerns two
statements made by the prosecutor, one in closing argument and one
during rebuttal argument. In the first, the prosecutor argued that
there was no reason for Hamie to have the false licenses unless he
intended to defraud someone. After Hamie asserted that there was
no evidence that the licenses were, in fact, used to defraud, the
prosecutor argued that Hamie would be required to present
identification to obtain cash advances, which the evidence shows he
did on a number of occasions. Hamie claims that both comments
refer to facts not in evidence.
It is well settled that in its closing argument the
prosecution may not rely on knowledge or evidence unavailable to
the jury. United States v. Smith, 982 F.2d 681, 683 (1st Cir.
1993). On the other hand, the prosecutor may attempt to persuade
the jury to draw inferences from the evidence. United States v.
Moreno, 947 F.2d 7, 8 (1st Cir. 1988). This is a narrow path to
tread, with some comments being impermissible because they rely on
too big an inferential leap, see, e.g., United States v. Artus, 591
F.2d 526, 528 (9th Cir. 1979) (prosecution improperly discussed the
authority of Director of Federal Bureau of Prisons in closing
argument even though the details of his powers had not been placed
in evidence), and others being within permissible limits, see,
e.g., Moreno, 947 F.2d at 8 (prosecutors permissibly asked jury to
assess the reasonableness of the defendant's contention that she
was unaware of boyfriend's drug distribution activities). While
prosecutors should be wary of crossing that boundary, we have no
trouble identifying the challenged statements as reasonable
inferences in this particular case.
We have said in a variety of different ways that the
prosecution may "call[] on the jury to employ its 'collective
common sense' in evaluating the evidence and to draw reasonable
inferences therefrom." United States v. Abreu, 952 F.2d 1458, 1471
(1st Cir. 1992) (internal quotation omitted). "[I]n . . . choosing
from among competing inferences, jurors are entitled to take full
advantage of their collective experience and common sense." United
States v. O'Brien, 14 F.3d 703, 708 (1st Cir. 1994). See alsoUnited States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (When
they become members of a jury, individuals should neither "divorce
themselves from their common sense nor [] abandon the dictates of
mature experience.").
There is no doubt that the prosecutor's first comment
merely asked the individuals to draw an inference from their life
experiences. The prosecutor argued that the false licenses were
evidence of fraud because there was no other reason for Hamie to
possess them. If the jury's common sense and experience led it to
conclude that Hamie had other grounds for possessing the false
licenses, the jury could have rejected the prosecution's argument
and could have drawn a reasonable inference in Hamie's favor.
Moreover, in his closing argument defense counsel could have
suggested alternative legal reasons for possessing false licenses.
The fact that the jury drew an inference unfavorable to Hamie does
not make the prosecutor's comment impermissible.
The reference to Hamie's need for identification gives us
slightly more pause, but we are firmly convinced that the argument
was permissible. The government claimed that the false licenses
were evidence of the credit card fraud scheme because Hamie would
need to present such identification to get a cash advance, which he
did several times. The prosecution's comment hearkened back to
evidence that Hamie offered to teach the cooperating witness how to
obtain cash advances from banks based on the fraudulent credit
cards. In making this argument, the prosecution again asked the
jury to draw on their collective life wisdom and practice. It is
commonplace for a bank employee to request identification prior to
executing a financial transaction, a policy with which jurors would
have extensive experience. Indeed, we would be surprised if a bank
were to provide a customer with sums of cash based merely on the
presentation of a credit card and no identification linking that
particular individual to the card. While the jury had no actual
evidence that Hamie would be asked for identification before a bank
could process a cash advance, the prosecution's comment was an
allowable inference relying on the jury's experience. See Ortiz,
966 F.2d at 712. Although it might have been preferable for the
prosecution to have introduced evidence to that effect, the
argument was permissible.
Neither ground for appeal is meritorious, and the
conviction is therefore affirmed.
Affirmed.