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United States v. on Lee.

decided: November 21, 1951.

UNITED STATES
v.
ON LEE.



Author: Swan

Before SWAN, Chief Judge, CLARK and FRANK, Circuit Judges.

SWAN, Chief Judge.

This appeal brings up for review a judgment of conviction and sentence under a two count indictment. Count one charged the substantive offense of selling one pound of opium in violation of 21 U.S.C.A. §§ 173 and 174. Count two charged a conspiracy, 18 U.S.C. § 371, to sell opium in violation of sections 2553(a) and 2554(a) of Title 26 as well as the above mentioned sections of Title 21. The appellant was sentenced to three years' imprisonment on each court, the terms to run concurrently, and to a fine of $500 on count one. The appeal challenges the sufficiency of the evidence, and asserts errors in the conduct of the trial and in the charge to the jury.

The indictment named two defendants, the appellant and Gong Len Ying.The latter pleaded guilty and testified for the government at the trial of the appellant. He testified that on January 22, 1950 he agreed to deliver to Benny Gim, an undercover agent of the Bureau of Narcotics, one pound of opium for $550; that Gim gave him the money which he turned over to the appellant, except $70 retained as his share, and that the appellant then got the opium and delivered it to him and he delivered it to Gim. The appellant took the stand in his own defense and denied having had anything to do with, or any knowledge of, the transaction. He admitted having been with Ying on the evening of January 22nd but said their meeting and conversation related only to the purchase of a laundry to whose owner Ying proposed to introduce him. Which story to believe was plainly for the jury. The appellant argues that even accepting Ying's testimony in full, it proved merely a sale by appellant to Ying (not the crime charged) and a sale by Ying on his own account to Gim.*fn1 But this interpretation of the transaction was foreclosed by the testimony of Agent Lee, if credited by the jury. Agent Lee testified that he heard the appellant admit in conversation with Chin Poy, a government informer, that the opium sold to Gim belonged to a syndicate of which the appellant was a representative and that he had employed Ying to make the sale. Without detailing more of the testimony, we think it obvious that the evidence as to both counts required submission of the case to the jury.

It is urged that error was committed in admitting Agent Lee's testimony concerning the above mentioned conversation between Chin Poy and the appellant. This conversation took place in appellant's laundry several weeks after his arrest and while he was enlarged on bail. Chin Poy carried a concealed radio transmitter and Agent Lee, who was outside the laundry, overheard the conversation by means of a radio receiving device tuned to Chin Poy's transmitter. The testimony was received over the appellant's objection and it is now contended that disclosure of the overheard conversation is forbidden by the Federal Communications Act, 47 U.S.C.A. § 605.*fn2 The contention is not sustainable. As the Supreme Court said in Goldman v. United States, 316 U.S. 129, 133, 62 S. Ct. 993, 995, 86 L. Ed. 1322: "The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation." There was no "interception" of a communication by wire or radio which is what the statute forbids. The radio device was merely a mechanical means of eavesdropping, just as the detectaphone was in the Goldman case.

As a second string to his bow the appellant contends that even if the use of the radio transmitter by Chin Poy and Agent Lee did not violate section 605, the evidence was inadmissible because it was obtained by a trespass and constituted an unreasonable search and seizure in violation of the Fourth and Fifth Amendments.*fn4

In Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647, a federal employee entered the office of one suspected of crime under the pretext of paying a friendly visit and while there surreptitiously extracted certain papers. This was held to be an unreasonable search and seizure within the meaning of the Fourth Amendment, and the admission of the papers in evidence was held a violation of the Fifth Amendment. In commenting upon the Gouled case in Olmstead v. United States, 277 U.S. 438, 463-464, 48 S. Ct. 564, 567, 72 L. Ed. 944, Chief Justice Taft remarked:

"Gouled v. United States carried the inhibition against unreasonable searches and seizures to the extreme limit. Its authority is not to be enlarged by implication, and must be confined to the precise state of facts disclosed by the record * * * There was actual entrance into the private quarters of defendant and the taking away of something tangible. Here we have testimony only of voluntary conversations secretly overheard.

"The amendment itself shows that the search is to be of material things - the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized."

In the last decade the Supreme Court has expanded the protection of the private citizen against unreasonable interference with his home, his person or his effects, but none of these decisions has directly questioned Chief Justice Taft's analysis. Dicta, however, in Goldman v. United States, 316 U.S. 129, 134, 62 S. Ct. 993, 86 L. Ed. 1322, indicate that where officers, by a trespass, entered the accused's office, attached a listening device to his phone and used it successfully, evidence so obtained might be inadmissible because obtained in violation of the Fourth Amendment. One Court of Appeals has expressly gone beyond the holding of the Olmstead case. In Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690, police officers entered a suspect's home while conducting an investigation of an automobile accident. When the homeowner appeared he admitted driving the car in question. The police were convinced by his appearance that he was intoxicated and they arrested him on a charge of drunken driving. Because the testimony of the police officers was admitted, the conviction of the accused was reversed. The opinion states, 115 F.2d at page 692: "The crucial thing 'found' in this 'search' was a declaration of fact by the defendant that has become decidedly incriminating."*fn5 But we are not disposed to follow the extension adopted by the court in the Nueslein case in view of the clear statement in the Olmstead case that only the taking of tangible things violates the Fourth Amendment. And this is especially so when we are confronted with the facts in the case at bar. If Agent Lee's testimony is to be excluded it would logically follow, in our opinion, that Chin Poy himself would not be allowed to testify as to the appellant's admissions. No case has been cited to us, and our own researches have found none, which would exclude, because of the Fourth Amendment, testimony of a government agent merely because he concealed from the suspect, when calling at his place of business, that he was such an agent and intended if possible to extract damaging statements from the suspect. Nor do we think that the Gouled case can be cited for the proposition that entry by a government agent under such circumstances invariably constitutes a trespass which would render evidence thereby obtained inadmissible. The crucial fact in the Gouled case, as Chief Justice Taft pointed out, was that there was both an entry by subterfuge and a taking of a tangible thing. It will be noted that in the Goldman and Nueslein cases which indicate that the taking of an intangible thing may violate the Fourth Amendment, there was no entry by subterfuge. We do not think the Fourth Amendment stretches so far as to prevent the admission of statements heard by a federal employee in the accused's home or place of business whose only "trespass" is the fact that he conceals his true identity to gain information. It has long been customary for law enforcement agencies to obtain admissible evidence by this method of subterfuge,*fn6 and until otherwise instructed by the Supreme Court, we shall not interpret the Amendment to require the exclusion of statements so obtained.*fn7

In the conversation overheard by Agent Lee on March 30, 1950 the appellant told Chin Poy that the syndicate of which the appellant was the representative could supply opium in the future. The court at once told the jury to disregard this evidence. Shortly thereafter the testimony was repeated and counsel then moved for a mistrial. Apparently the court never ruled directly on this motion and counsel did not press for a ruling. The prosecutor claims that the testimony was competent because the conspiracy was charged as continuing down to the date of the filing of the indictment, April 26, 1950; hence the statement made to Chin Poy, although made after the appellant's arrest, was made during the period covered by the indictment and was evidence of the crime charged. Whether this theory would justify admission of the testimony we need not say. Even assuming the evidence was incompetent, we think the court's instruction to disregard it cured the error.

It is strenuously argued that prejudicial error was committed by admitting into evidence testimony that the appellant remained silent when an accusatory statement was made by Ying in the appellant's presence after their arrest. Detective Monahan testified that he first asked the appellant if he had sold the opium or delivered it to Ying and the appellant denied that he had anything to do with it. The detective then asked Ying where he got the opium and Ying replied he got it from the appellant in the hallway of 79 Mott Street on the afternoon of January 22nd; the appellant said nothing. His counsel requested the judge to inform the jury that they should disregard the detective's conversation with Ying. No immediate ruling was made upon this request but a lengthy colloquy was had by court and counsel in the presence of the jury as to whether the appellant's silence could be considered against him as a tacit admission. The court reserved decision and asked counsel to submit authorities. Further discussion between court and counsel occurred later in the trial and at the conclusion of the prosecutor's case counsel for the appellant moved for a mistrial because of the admission of the evidence and the court's comments as to the inference to be drawn from the appellant's silence when the accusatory statement was made. This motion was formally denied. But in charging the jury the court stated that no admission by Ying after his arrest could bind the appellant. After stating the general rule as to silence in the face of an accusatory statement, he said that the appellant having denied the charge once did not have to deny it again. "He has denied it once and that would be sufficient."

In the light of this court's decision in United States v. Lo Biondo, 2 Cir., 135 F.2d 130, 131, the admission of evidence as to appellant's silence when faced with Ying's accusation was erroneous, but in that case the jury was told that the accused's silence was a "circumstance which they may consider." In the case at bar the jury was told emphatically that having already denied that he gave the opium to Ying he was not obliged to deny it again when Ying made the charge in his presence. We think this cured any prejudice which might have resulted from the original admission of the evidence.*fn8 Colloquies as to rules of evidence are not ordinarily regarded by juries as of much concern to them.*fn9 Any unfavorable impression the jury may have received from the court's remarks during the colloquies, we regard as swept away by the charge.*fn10 The jury system is premised on the assumption that when the judge instructs the jury what evidence it may consider it will obey the instruction. In exceptional circumstances the prejudice from improperly admitted evidence may be too serious to be cured by a charge to disregard it.*fn11 But we do not regard the present as such a case.

Error is asserted in the court's refusal to give 16 of the defendant's 37 requests to charge. The appellant's main brief merely enumerates the 16 requests but does not point out wherein the charge as given was defective in respect to matters covered by the refused requests. This is not an adequate way to present an attack upon the charge. We have, however, examined the 16 enumerated requests and compared them with ...


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