United States v. Robert Bennett Schwartz, 535 F.2d 160 (2d Cir. 1976). · Go Syfert
United States v. Robert Bennett Schwartz, 535 F.2d 160 (2d Cir. 1976). Cases Citing This Book View Copy Cite
“he failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground.”
88 citation events (21 in the last 25 years) across 30 distinct courts.
Strongest positive: Willie Walker, Jr. v. United States (dc, 2019-02-21)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (quoted) Willie Walker, Jr. v. United States
D.C. · 2019 · signal: see also · quote attribution · 1 verbatim quote · confidence low
he failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground.
cited Cited as authority (rule) Calix v. United States
S.D.N.Y. · 2025 · confidence medium
“Adverse rulings, standing alone, do not establish judicial bias or prejudice, nor create a reasonable question of judicial impartiality.” United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976).
discussed Cited as authority (rule) United States v. Hester
2d Cir. · 2016 · signal: cf. · confidence medium
See United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (“[T]he law in this circuit is well established that, in the absence of record evidence suggesting otherwise, we presume that a sentencing judge has faithfully discharged her duty to consider the statutory factors.” (citation and internal quotation marks omitted)); cf. United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976) (“Adverse rulings, standing alone, do not establish judicial bias or prejudice ... nor create a reasonable question of judicial impartiality.” (internal citation omitted)).
cited Cited as authority (rule) United States v. Lange
2d Cir. · 2016 · confidence medium
United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976). 3.
cited Cited as authority (rule) United States v. Lange
2d Cir. · 2016 · confidence medium
United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976). 3.
discussed Cited as authority (rule) Osborne v. Tulis
2d Cir. · 2015 · confidence medium
However, “[a]dverse rulings, standing alone, do not establish judicial bias or prejudice ... nor create a reasonable question of judicial impartiality.” See United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976) (citation omitted).
discussed Cited as authority (rule) Stevenson v. Bank of America, N.A.
2d Cir. · 2015 · confidence medium
Without more, an adverse ruling does not support a claim for recusal, see United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976) (“Adverse rulings, standing alone, do not establish judicial bias or prejudice ... nor create a reasonable question of judicial impartiality.”), and the on-the-record hearing, of which Appellants had notice and neglected to attend, does not constitute an improper ex parte contact.
discussed Cited as authority (rule) United States v. Akeem Joseph
3rd Cir. · 2013 · confidence medium
See also, e.g., United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (using theory and ground); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976) (using ground); United States v. Pope, 467 F.3d 912, 918-19 (5th Cir.2006) (using issue and argument); United States v. King, 627 F.3d 641, 647 (7th Cir. 2010) (using argument and issue); United States v. Green, 691 F.3d 960, 965 (8th Cir. *340 2012) (using argument and issue); United States v. Scott, 705 F.3d 410, 415-16 (9th Cir.2012) (using theory, issue, and argument); United States v. Burke, 633 F.3d 984, 987-88 (10th Cir.2011) (usi…
cited Cited as authority (rule) United States v. Fleishman
2d Cir. · 2013 · confidence medium
United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976).
discussed Cited as authority (rule) United States v. Marcus Hill
4th Cir. · 2012 · confidence medium
Id. at 948-49 (citations omitted) 5 ; United States v. Lockett, 406 F.3d 207, 212 (3d Cir.2005) (“Therefore, in the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court.”); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976) (“The Government very properly points out that the failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground.”), cert. de…
discussed Cited as authority (rule) United States v. Marlon Taylor
4th Cir. · 2011 · confidence medium
Id. at 948 (emphasis added; citations omitted); see also United States v. Lockett, 406 F.3d 207, 212 (3d Cir.2005)(“Therefore, in the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court.”); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976)(“The Government very properly points out that the failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that grou…
discussed Cited as authority (rule) In Re Directives Pursuant to SEC. 105b
FISA Ct. Rev. · 2008 · confidence medium
It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful. [9] See, e.g., United States v. Kahn, 415 U.S. 143, 157-58 , 94 S.Ct. 977 , 39 L.Ed.2d 225 (1974); United States v. Schwartz, 535 F.2d 160, 164 (2d Cir.1976).
discussed Cited as authority (rule) United States v. Klump
2d Cir. · 2008 · confidence medium
It is well-settled that “the 20 failure to assert a particular ground in a pre-trial suppression 21 motion operates as a waiver of the right to challenge the 22 subsequent admission of evidence on that ground.” United States 23 v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976).
discussed Cited as authority (rule) United States v. Klump
2d Cir. · 2008 · confidence medium
It is well-settled that “the failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground.” United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976).
discussed Cited as authority (rule) United States v. Yousef
2d Cir. · 2003 · confidence medium
Under Federal Rule of Criminal Procedure 12(f) (“Rule 12(f)”), “failure by a party to raise defenses or objections or to make requests which must be made prior to trial ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” 55 See also United States v. Crowley, 236 F.3d 104, 110 (2d Cir.2000); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976).
discussed Cited as authority (rule) United States v. Yousef
2d Cir. · 2003 · confidence medium
Although Murad concedes that he did not raise this argument before the trial court, he nonetheless argues that, even under "plain error" review, the alleged error is sufficiently serious to warrant reversal of his conviction or at least vacatur of the judgment and a new trial. 223 Under Federal Rule of Criminal Procedure 12(f) ("Rule 12(f)"), "[f]ailure by a party to raise defenses or objections or to make requests which must be made prior to trial ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." 55 See also United States v. Crowley, 236 F.3…
discussed Cited as authority (rule) United States v. Ho (2×)
5th Cir. · 1996 · confidence medium
See United States v. Harrelson, 705 F.2d 733, 738 (5th Cir.1983) ("[f]ailure to move pre-trial for suppression, or to assert a particular ground in the suppression motion, operates as a waiver unless the district court grants relief for good cause shown"); United States v. Knezek, 964 F.2d 394, 397 (5th Cir.1992) ("[a] district court does not abuse its discretion under Rule 12(f) in denying a suppression motion solely on the ground that the defendant failed to comply with pretrial procedures"); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976) ("failure to assert a particular ground i…
discussed Cited as authority (rule) United States v. Michalek
W.D.N.Y. · 1993 · confidence medium
See, e.g., Fiumara v. United States, 727 F.2d 209, 213 (2d Cir.) (failure to raise alleged illegality of wiretap in suppression motion waived the objection), cert. denied, 466 U.S. 951 , 104 S.Ct. 2154 , 80 L.Ed.2d 540 (1984); United States v. Hart, 729 F.2d 662, 665 (10th Cir.1984) (claim that confession was obtained in violation of Miranda was waived by failure to make motion to suppress prior to trial), cert. denied, 469 U.S. 1161 , 105 S.Ct. 914 , 83 L.Ed.2d 927 (1985); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976) (failure to raise, in pretrial suppression motion, claim that …
discussed Cited as authority (rule) State v. Melendez (2×)
N.J. · 1992 · confidence medium
See United States v. Hyson, 721 F.2d 856, 864-65 (1st Cir.1983); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. DeLeon, 498 F.2d 1327, 1332 (7th Cir.1974); People v. Barnes, 2 Ill.App.3d 461, 276 N.Ed.2d 509, 512-13 (1971); State v. Ouimette, 110 R.I. 747 , 298 A.2d 124, 139-40 (1972).
discussed Cited as authority (rule) United States v. Ahmed
S.D.N.Y. · 1992 · confidence medium
See, e.g., In re IBM Corp., 618 F.2d 923, 929 (2d Cir.1980); King v. United States, 576 F.2d 432, 437 (2d Cir.), cert. denied, 439 U.S. 850 , 99 S.Ct. 155 , 58 L.Ed.2d 154 (1978); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), ce rt. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Bernstein, 533 F.2d 775, 784-85 (2d Cir.), cert. denied, 429 U.S. 998 , 97 S.Ct. 523 , 50 L.Ed.2d 608 (1976).
discussed Cited as authority (rule) Farkas v. Ellis
S.D.N.Y. · 1991 · confidence medium
IBM, supra, 618 F.2d at 929 ; King v. United States, 576 F.2d 432, 437 (2d Cir.1978), cert. denied, 439 U.S. 850 , 99 S.Ct. 155 , 58 L.Ed.2d 154 (1978); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Bernstein, 533 F.2d 775, 784-85 (2d Cir.1976), cert. denied, 429 U.S. 998 , 97 S.Ct. 523 , 50 L.Ed.2d 608 (1976).
discussed Cited as authority (rule) State v. Belgard
Utah Ct. App. · 1991 · confidence medium
Carter, however, had never raised such an argument at trial and was therefore considered to have waived the issue. [Wjhere a defendant fails to assert a particular ground for suppressing unlawfully obtained evidence in the trial court, an appellate court will not consider that ground on appeal. “[T]he failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground.” Id. at 660 (quoting State v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976) (emphasis added)).
discussed Cited as authority (rule) Lamborn v. Dittmer
S.D.N.Y. · 1989 · confidence medium
International Business Machines, supra, 618 F.2d at 929 ; King v. United States, 576 F.2d 432, 437 (2d Cir.1978), ce rt. denied, 439 U.S. 850 , 99 S.Ct. 155 , 58 L.Ed.2d 154 (1978); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), ce rt. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Berstein, 533 F.2d 775, 784-85 (2d Cir.), cert. denied, 429 U.S. 998 , 97 S.Ct. 523 , 50 L.Ed.2d 608 (1976); Markus v. United States, 545 F.Supp. 998, 999-1000 (S.D.N.Y.1982) (Weinfeld, J.), aff'd, 742 F.2d 1444 (2d Cir.1983).
discussed Cited as authority (rule) Meyer v. Oppenheimer Management Corp.
S.D.N.Y. · 1989 · confidence medium
See In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1314 (2d Cir.1988); United States v. Pugliese, 805 F.2d 1117, 1125 (2d Cir.1986); In re International Business Machines Corp., 618 F.2d 923, 928-29 (2d Cir.1980); King v. United States, 576 F.2d 432, 437 (2d Cir.), cert. denied, 439 U.S. 850 , 99 S.Ct. 155 , 58 L.Ed.2d 154 (1978); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976).
discussed Cited as authority (rule) United States v. Lee William Sachs
6th Cir. · 1986 · confidence medium
See also Fed.R.Crim.P. 12(f); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Wood, 609 F.2d 246, 248 (6th Cir.1979) (per curiam) (“We cannot properly speculate now as to what would have been developed at the suppression hearing if the motion had been made and the hearing had been held.”); United States v. Mangieri, 694 F.2d 1270, 1282 (D.C.Cir.1982) (failure to file pretrial motion to suppress at the time designated by the trial court constituted waiver).
discussed Cited as authority (rule) United States v. Kenneth L. Estes
2d Cir. · 1986 · confidence medium
United States v. Sperling, 726 F.2d 69, 74-75 (2d Cir.), cert, denied, 467 U.S. 1243 , 104 S.Ct. 3516 , 82 L.Ed.2d 824 (1984); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977).
discussed Cited as authority (rule) United States v. Rastelli
E.D.N.Y · 1986 · confidence medium
As the court noted in United States v. Schwartz, 535 F.2d 160, 164 (2d Cir.1976), cert, denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977), “[i]t is virtually impossible to completely exclude all irrelevant matter from intercepted conversations.” Rather, it is enough that the monitoring agent here ended the interception soon after a question about pertinence arose.
discussed Cited as authority (rule) United States v. Strusberg-Gonzalez
D. Maryland · 1986 · confidence medium
As to the propriety of a flight instruction when given, as in the within case, when a defendant is tried in absentia, see United States v. Touchstone, 726 F.2d 1116, 1118-20 (6th Cir. 1984); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Lobo, 516 F.2d 883 (2d Cir.1975), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); see also United States v. Beahm, 664 F.2d 414, 419-20, 422 (4th Cir.1981); United States v. Hernandez-Miranda, 601 F.2d 1104, 1106-07 (9th Cir.1979).
discussed Cited as authority (rule) United States v. Santoro
E.D.N.Y · 1986 · confidence medium
Feb. 27, 1986) (quoting United States v. Schwartz, 535 F.2d 160, 164 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977)), and indeed “[t]he statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveilance in such a manner as to ‘minimize’ the interception of such conversations,” United States v. Scott, supra, 436 U.S. at 140 , 98 S.Ct. at 1724 .
discussed Cited as authority (rule) Hale v. Firestone Tire & Rubber Co.
8th Cir. · 1985 · confidence medium
Further, “adverse evidentiary rulings do not, by themselves, demonstrate bias.” Blizard v. Frechette, 601 F.2d at 1220 , citing United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977).
discussed Cited as authority (rule) ca8 1985
8th Cir. · 1985 · confidence medium
Further, "adverse evidentiary rulings do not, by themselves, demonstrate bias." Blizard v. Frechette, 601 F.2d at 1220 , citing United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977). 20 The district judge did not abuse his discretion by refusing to disqualify himself under Sec. 455.
discussed Cited as authority (rule) Fox v. State
Alaska Ct. App. · 1984 · confidence medium
See, e.g., United States v. Contreras, 667 F.2d 976 , 978 n. 2 (11th Cir.1982), cert. denied, 459 U.S. 849 , 103 S.Ct. 109 , 74 L.Ed.2d 97 (1982); United States v. Gresham, 585 F.2d 103, 108 (5th Cir.1978); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); State v. Griffin, 117 Ariz. 54 , 570 P.2d 1067, 1069 (1977); State v. Neese, 126 Ariz. 499 , 616 P.2d 959, 966-67 (Ariz.App, 1980); People v. Martinez, 14 Cal.3d 533 , 121 Cal.Rptr. 611, 613-614 , 535 P.2d 739 , *1270 741-42 (1975); State v. Gerhardt, 97 Idaho 603 …
discussed Cited as authority (rule) United States v. Robert Hyson, United States of America v. Edward Ennis, A/K/A \Tiger\" (2×)
unknown court · 1983 · confidence medium
United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Lobo, 516 F.2d 883 (2d Cir.), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975).
discussed Cited as authority (rule) United States v. One 1980 Chevrolet Blazer Automobile
E.D.N.Y · 1983 · confidence medium
See United States v. Barnes, 604 F.2d 121, 146 (2d Cir.1979), cert. denied, 446 U.S. 907 , 100 S.Ct. 1833 , 64 L.Ed.2d 260 (1980); United States v. Magnano, 543 F.2d 431, 437 (2d Cir.1976), cert. denied, 429 U.S. 1091 , 97 S.Ct. 1101 , 51 L.Ed.2d 536 (1977); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.), cert. denied, 423 U.S. 832 , 96 S.Ct. 54 , 46 L.Ed.2d 50 (1975).
discussed Cited as authority (rule) Rowlee v. Commissioner
Tax Ct. · 1983 · confidence medium
See United States v. Conforte, 624 F.2d 869, 882 (9th Cir. 1980); United States v. Carroll, 567 F.2d 955, 958 (10th Cir. 1977); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976); United States v. Ming, 466 F.2d 1000, 1002-1004 (7th Cir. 1972); United States v. Anderson, 433 F.2d 856, 860 (8th Cir. 1970).
discussed Cited as authority (rule) United States v. Three Hundred Sixty Four Thousand Nine Hundred Sixty Dollars ($364,960.00) in United States Currency
5th Cir. · 1981 · confidence medium
In United States v. Magnano, 543 F.2d 431, 437 (2d Cir. 1976), cert. denied, 429 U.S. 1091 , 97 S.Ct. 1101 , 51 L.Ed.2d 536 (1977), the Second Circuit held that possession of a large amount of cash by a defendant charged with participation in a narcotics trafficking conspiracy was relevant admissible evidence of such participation: [T]he possession of large amounts of unexplained cash in connection with evidence of narcotics trafficking on a large scale is similar to the possession of special means, such as tools or apparatus, which is admissible to show the doing of an act requiring those mea…
discussed Cited as authority (rule) United States v. Scaccia
N.D.N.Y. · 1981 · confidence medium
Corp., supra, 618 F.2d at 928 -929 nn. 1 and 6; King v. United States, 576 F.2d 432, 437 (2d Cir.), cert. denied, 439 U.S. 850 , 99 S.Ct. 155 , 58 L.Ed.2d 154 (1978); United States v. Wolfson, 558 F.2d 59, 62 (2d Cir. 1977); United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977); Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968). 3 .
discussed Cited as authority (rule) United States v. George Zappola and Robert Melli
2d Cir. · 1981 · confidence medium
In United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977), the court noted that appellants’ failure to raise certain objections in a pre-trial suppression motion constituted a waiver of those objections.
discussed Cited as authority (rule) ca2 1980
2d Cir. · 1980 · confidence medium
Although there was a general objection to this line of testimony as being irrelevant, there was no objection on the ground that the testimony constituted "bad acts" or "other crimes" within the meaning of Rule 404(b), Fed.R.Evid. 20 Rule 12(f) of the Federal Rules of Criminal Procedure clearly states that "(f)ailure by a party to raise . . . objections . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." This court has strongly held in United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert. denied, 431 U.S. 959 , 97 S.Ct. 2686 , 53 L.Ed.2…
discussed Cited as authority (rule) United States v. Singh
2d Cir. · 1980 · confidence medium
Rule 12(f) of the Federal Rules of Criminal Procedure clearly states that “[fjailure by a party to raise . . . objections shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” This court has strongly held in United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert. denied, 431 U.S. 959 , 97 S.Ct. 2686 , 53 L.Ed.2d 277 (1977), that where a party has shifted his position on appeal and advances arguments available but not pressed below, United States v. Schwartz, 535 F.2d 160,163 (2d Cir. 1976), and where that party has had ample opportunity to m…
cited Cited as authority (rule) State v. Harris
Mo. Ct. App. · 1980 · confidence medium
United States v. Schwartz, 535 F.2d 160, 163 [1] (2nd Cir. 1976) and cases there cited.
discussed Cited as authority (rule) United States v. Clemente
S.D.N.Y. · 1979 · confidence medium
Thus, it has been recognized that “[i]t is virtually impossible to completely exclude all irrelevant matter from intercepted conversations.” United States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 (1977).
cited Cited as authority (rule) Blizard v. Frechette
1st Cir. · 1979 · confidence medium
United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976).
discussed Cited as authority (rule) ca1 1979
1st Cir. · 1979 · confidence medium
United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976). 13 In sum, the denial of the motion to recuse was not an abuse of discretion. 2 The Motion for a New Trial 14 Appellant argues that the trial court could not comply with the mandate of our remand of this case without a complete retrial.
cited Cited as authority (rule) In Re Raymond
Vt. · 1979 · confidence medium
V.R.Cr.P. 12, subsections (b) (3) and (g); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), cert. denied, 430 U.S. 906 , reh. denied, 430 U.S. 976 (1977).
discussed Cited as authority (rule) United States v. DePalma (2×)
S.D.N.Y. · 1978 · confidence medium
See also United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), cert. denied, 430 U.S. 906 , 97 S.Ct. 1175 , 51 L.Ed.2d 581 , reh. denied, 430 U.S. 976 , 97 S.Ct. 1669 , 52 L.Ed.2d 371 (1977).
discussed Cited as authority (rule) United States v. Marion Knuckles, Rose Smith and Raymond Brown
2d Cir. · 1978 · confidence medium
In United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert. denied, 431 U.S. 959 , 97 S.Ct. 2686 , 53 L.Ed.2d 277 (1977), we said: “Rule 12(f) F.R.Crim.Pro. makes clear that ‘[fjailure by a party to raise defenses or objections or to make requests which must be made prior to trial, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.’ The law in this Circuit is clear that where a party has shifted his position on appeal and advances arguments available but not pressed below, United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), and w…
discussed Cited as authority (rule) United States v. Crisona
S.D.N.Y. · 1977 · confidence medium
Of course, were the Government to engage in such discussions as part of a scheme of “contrived procrastination”, United States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976); United States v. Eucker, 532 F.2d 249, 255 (2d Cir. 1976), a contrary conclusion might pertain.
cited Cited as authority (rule) United States v. Baker
S.D.N.Y. · 1977 · confidence medium
Accordingly, when the affidavit is viewed in a practical and commonsense fashion, see United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976); S.Rep.
discussed Cited as authority (rule) United States v. Susan M. Braunig
2d Cir. · 1977 · confidence medium
Rule 12(f) F.R.Crim.Pro. makes clear that “[fjailure by a party to raise defenses or objections or to make requests which must be made prior to trial, . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” The law in this Circuit is clear that where a party has shifted his position on appeal and advances arguments available but not pressed below, United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), and where that party has had ample opportunity to make the point in the trial court in a timely manner, United States v. Rollins, 522 F.2…
UNITED STATES of America, Appellee,
v.
Robert Bennett SCHWARTZ, Appellant
733, Docket 75-1364.
Court of Appeals for the Second Circuit.
Apr 20, 1976.
535 F.2d 160
Robert Bennett Schwartz, pro se., Peter R. Schlam, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Paul B. Bergman, Richard Appleby, Zachary W. Carter, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.
Feinberg, Oakes, Van Graafeiland.
Cited by 84 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 57%
Citer courts: District of Columbia Court of … (1)
[*162] VAN GRAAFEILAND, Circuit Judge:

On this appeal from a judgment of the United States District Court for the Eastern District of New York convicting appellant of conspiracy to traffic in narcotics in violation of 21 U.S.C. §§ 173, 174, appellant does not challenge the sufficiency of the evidence against him. Finding no basis for appellant’s numerous claims of procedural error, we affirm.

The proof may be succinctly summarized. During 1970, Luis Ureta-Morales, known also as Lucho, was importing cocaine from South America and selling it in New York City. Among his customers was Claudina Leiros who, in turn, was selling to appellant’s wife. On May 9,1970, two of Lucho’s couriers were arrested and detained in Los Angeles, and Lucho sought legal advice. Leiros introduced Lucho to appellant, a lawyer then under a three year suspension from practice.

This introduction permitted appellant to explore with Lucho the possibility of eliminating Leiros as the middleman and purchasing directly from Lucho. After some negotiations, Lucho told appellant that a large shipment of cocaine would shortly be imported through Texas and that appellant could have ten or fifteen kilograms from it.

Shortly thereafter Lucho met Juan Besolo, another drug trafficker, who had five kilograms of cocaine available for ready sale, and arranged for this to be sold to appellant. During the course of this transaction, Besolo stated that after payment was made he would have ten more kilograms to sell, and Lucho arranged for this also to be purchased by appellant.

Before this transaction was consummated, Lucho flew to Texas to pick up the shipment he was awaiting. There he was arrested. The cocaine, however, was not found. When Lucho, having made bail, returned to New York, he found that Besolo, frightened off by Lucho’s arrest, had reneged on the ten kilogram deal. Lucho promised appellant once more that he would receive a portion of the unseized Texas shipment when it arrived in New York but was again arrested before this could take place.

Although both Mr. and Mrs. Schwartz were indicted on December 10, 1974, Mrs. Schwartz fled the country shortly after pretrial hearings had commenced in March 1975. Judge Judd directed, nonetheless, that the trial proceed against both defendants, and both were convicted.

On December 26, 1974, following appellant’s arrest, Special Agent John P. Cipriano of the Drug Enforcement Administration applied to a United States magistrate for warrants authorizing the search of several safe deposit boxes rented by Mr. and Mrs. Schwartz. Five such warrants were issued authorizing the seizure of “large quantities of United States currency”. One of the boxes was found to contain $75,000 in cash, jewelry, a deed to property in Jamaica purchased for $210,000, money wrappers and documents evidencing other large financial holdings by appellant and his wife, all of which were seized. Only the cash, money wrappers and the deed were subsequently offered in evidence.

Prior to trial, defendants moved to suppress the evidence thus seized, asserting that certain statements in the warrant application relative to the “laundering” of the proceeds of narcotics sales were untrue and that the application improperly disclosed information concerning appellant’s failure to file income tax returns which he had given the United States Attorney upon the assurance it would not be used against him.

The affidavit stated that police officers had seen defendants go to a bank on several occasions and convert cash into bills of large denomination, cashier’s checks or money orders and then drive to the banks where defendants’ safe deposit boxes were located. In this manner, it was said, narcotics dealers laundered the proceeds of their sales. Judge Judd found that the hearsay affidavit of an investigator who had interviewed employees of the bank did not disprove that laundering had taken place. He also found that there was enough information contained in the application to justify the issuance of a warrant,[*163] and he, therefore, deemed it unnecessary to resolve the question of a breach of confidence.

On appeal, appellant has broadened his attack. He now states that Agent Cipriano lied when he stated in his affidavit that his “investigation” revealed that defendants had not filed tax returns since 1968, because this “investigation” consisted solely of a conversation with the Assistant United States Attorney in charge of the case. Appellant also argues that the information contained in the affidavit was stale and did not establish probable cause as of the time the warrants were issued. Finally, appellant contends that the seizure of the deed and other items in the safe deposit box went beyond the scope of the warrant and violated his Fifth Amendment privilege against self-incrimination. These contentions are without substance.

We find no error in Judge Judd’s rulings on the motion to suppress, and appellant does not seriously contend that there was error. Instead, he has shifted his position and now advances arguments not made below. The Government very properly points out that the failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground. United States v. Rollins, 522 F.2d 160, 165 (2d Cir. 1975); United States v. Sultan, 463 F.2d 1066, 1070 (2d Cir. 1972). Moving past this point, however, we see no knowing falsehood in Cipriano’s failure to state that the product of his investigation was information supplied to him by an Assistant United States Attorney, who, it would seem, could be considered a fairly reliable source. Statements contained in Cipriano’s affidavit concerning the recent laundering activities of Mrs. Schwartz and her attempt to secure access to her safe deposit box on December 16, 1974, for the apparent purpose of securing $25,000 needed for bail, could reasonably lead the magistrate to conclude that cash from narcotics sales was in the box. Because the box was sealed and remained sealed until the warrant was executed, this information could not in any way be considered stale. Mapp v. Warden, 531 F.2d 1167, 1171-1172 (2d Cir. 1976). Seizure of the deed and money wrappers was clearly justified under the “plain view” doctrine. Id. at 1172; Rollins, supra, 522 F.2d at 166. Finally, the fact that appellant might not have been required to produce the contents of the safe deposit box pursuant to trial subpoena does not cloak them with a Fifth Amendment privilege prohibiting seizure under a validly issued search warrant. United States v. Bennett, 409 F.2d 888, 896-97 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969).

Appellant also challenges the validity of a wiretap order, the same order, incidentally, which was unsuccessfully attacked in United States v. Fantuzzi, 463 F.2d 683 (2d Cir. 1972). This order, issued by Judge Wyatt of the Southern District of New York on May 23, 1970, authorized a fifteen day wiretap on the telephone of one Carmen Lopez in whose apartment, according to a reliable informant, Lucho and other drug dealers had been meeting to discuss the importation of cocaine and from which drug-related telephone calls were made. The wiretap affidavit disclosed that the informant, Carmen Estrada, was not in a position to supply the police with extensive information concerning the obviously far-flung drug conspiracy, since she had not been taken into the confidence of the conspirators. Moreover, according to the affidavit, Estrada had stated that she would refuse to testify as a witness in the event of trial. We think that Judge Wyatt, viewing this affidavit in a practical and commonsense fashion, could reasonably conclude that investigative procedures other than wiretapping would be unlikely to succeed. United States v. Steinberg, 525 F.2d 1126 (2d Cir. 1975), cert. denied,-U.S.-, 96 S.Ct. 2167, 48 L.Ed.2d 794, 44 U.S.L.W. 3659 (1976); United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1015-16, cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). Although Estrada subsequently overcame her fear of reprisal and did testify, this did not change the picture[*164] as it was when Judge Wyatt granted the application. At that time, the Bureau of Narcotics’ source of information was a frightened informant who was not privy to the inner workings of the conspiracy.

Relying on the Supreme Court’s interpretation of 18 U.S.C. § 2518(1) in United States v. Kahn, 415 U.S. 143, 155, 94 S.Ct. 977, 984, 39 L.Ed.2d 225, 236-37 (1974), appellant argues that he should have been named in the wiretap application, because the Narcotics Bureau had probable cause to believe that he was committing the offense for which the wiretap was sought. We have followed the holding in Kahn, while at the same time recognizing the problems it presents for law enforcement officials. See United States v. Principie, 531 F.2d 1132, 1137 (2d Cir. 1976).

We need not concern ourselves with these problems in this case, however, because the record does not establish that, at the time the wiretap application was made, the Narcotics Bureau had probable cause to believe that appellant was involved in the offense under investigation, i. e., the large-scale importation of narcotics. Appellant did not even see fit to urge this ground in his motion to suppress. On the contrary, he contended that it was the wiretap which led the Government to begin an investigation of him and that all the evidence upon which the Government based its case against him was uncovered as a result of the tap. Although the Bureau did have some information that appellant and his wife were dealing in drugs, more than this was required to establish their probable involvement in a large-scale conspiracy to import drugs. At the time the wiretap application was made, the Narcotics Bureau was investigating a “criminal syndicate” with its “base of operation” at the apartment sought to be tapped. Any pre-tap information which might conceivably have connected appellant to this “syndicate” and its importation conspiracy was too insubstantial to establish the “probable cause” required by Kahn.

Appellant participated in but two of the wiretapped conversations. In one of these, the other participant was a conspirator named in the wiretap order; in the other the participant was the informant Estrada. Both of these conversations had to do with the posting of bail for arrested conspirators. Assuming that appellant had standing to assert failure to minimize the quantity of conversations intercepted on the phone of Carmen Lopez, but see United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1971), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972), we see no error in Judge Judd’s conclusion that the extent of non-pertinent matters intercepted was slight. It is virtually impossible to completely exclude all irrelevant matter from intercepted conversations. United States v. Bynum, 485 F.2d 490, 500 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974), aff’d on remand, 513 F.2d 533 (2d Cir. 1975). [1]

After the termination of the wiretap, an inventory of those whose conversations were overheard was furnished to Judge Wyatt. Appellant’s name was included. Because his name had not been included in the wiretap application or order, it was for Judge Wyatt to determine in his discretion whether a copy of this inventory should be served upon appellant. 18 U.S.C. § 2518(8)(d). We see no abuse of discretion in Judge Wyatt’s determination that such service was not required.

Appellant’s complaint that he was denied due process by delay in his indictment is without merit. The case against him depended substantially upon the testimony of Lucho, and it was not until May 1974 that Lucho agreed to cooperate with the Government. We see no “contrived procrastination” by the Government to the prejudice of appellant. United States v. Eucker, 532 F.2d 249, 255 (2d Cir. 1976).

Venue in the Eastern District of New York was predicated in part upon tes[*165] timony before the grand jury that cocaine had been delivered by ship to Brooklyn, and this was alleged as an overt act in the indictment. For lack of proof, this overt act was withdrawn from the jury’s consideration. There was no error here. United States v. Wilner, 523 F.2d 68, 72 (2d Cir. 1975). Other trial testimony was sufficient to support the chosen venue, and the Government was not restricted to the overt acts charged in the indictment in justifying its choice. United States v. Downing, 51 F.2d 1030, 1031 (2d Cir. 1931).

Appellant’s remaining arguments merit only summary mention. The Government’s proof adequately established the existence of a single conspiracy. United States v. Tramunti, 513 F.2d 1087, 1105-07 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673, 244 U.S.L.W. 3201 (1975). Adverse rulings, standing alone, do not establish judicial bias or prejudice, Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481, 484-85 (1921), nor create a reasonable question of judicial impartiality. Lazofsky v. Somserset Bus Co., 389 F.Supp. 1041, 1044 (E.D.N.Y.1975). The evidence showing unusual accumulations of cash and assets in appellant’s safe deposit box was properly admitted. Tramunti, supra, 513 F.2d at 1105; United States v. Kenny, 462 F.2d 1205, 1219 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972). Proof of appellant’s suspension from practice became relevant and admissible after he had attempted to create the impression that his relationship with the other conspirators was that of lawyer and client. There was no error in permitting the trial to proceed after the flight of Mrs. Schwartz. United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972); and proof of such flight, with proper limiting instructions as to appellant, was probative evidence of the guilt of the missing defendant. United States v. Lobo, 516 F.2d 883 (2d Cir.), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56, 44 U.S.L.W. 3202 (1975). Although it would have been better had there been no mention in the charge of misprision of felony, we think that, at most, this was harmless error which may be disregarded in view of the overwhelming evidence of guilt. United States v. Cirillo, 499 F.2d 872, 889 (2d Cir. 1974), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1975).

Appellant, a lawyer apparently not yet disbarred, has explored every conceivable ground for reversal, and we have reviewed each of his contentions. Having done so, we are satisfied that appellant received a scrupulously fair trial and that his conviction should be upheld.

Affirmed.

1

. We note also that the minimization issue was not raised prior to trial as required by 18 U.S.C. § 2518(10).