United States v. Hamie

• Court: Court of Appeals for the First Circuit
• Decided: January 20, 1999
• Docket: 98-1129
• Status: Published

Opinion

USCA1 Opinion

                 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.