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United States v. Hsu

decided: April 20, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
THOMAS KEE MING HSU, DEFENDANT-APPELLANT



Medina, Waterman and Smith, Circuit Judges.

Author: Medina

MEDINA, Circuit Judge:

We have before us here two appeals by the defendant, Thomas Kee Ming Hsu. The first appeal is from his conviction on eleven counts of a twelve-count indictment charging him with wire fraud, causing the interstate travel of a victim in execution of a fraudulent scheme, and causing the interstate transportation of money taken by fraud, in violation of 18 U.S.C. Sections 1343 and 2314. This appeal raises no question of the sufficiency of the evidence to support the charges but principally attacks what is said to be an unlawful search and seizure, in violation of his Fourth Amendment rights, at the time of his arrest by F.B.I. Agents at his apartment in Riverdale, New York at 5 p.m. on November 22, 1965 in execution of a bench warrant issued earlier that afternoon. There was no search warrant. Hsu also claims that the use of certain evidence obtained in this search violated his privilege against self-incrimination under the Fifth Amendment. The second appeal is from an order denying Hsu's motion under Fed.R.Crim.P. 35 to suspend or reduce his sentence of eight years' imprisonment imposed by Judge McGohey after a lengthy trial.

The fraudulent scheme executed by Hsu was so bizarre and improbable that until after one has scrutinized the abundance of evidence of Hsu's ingenious methods of operation the whole thing seems incredible. And yet, over a period of four years, he managed to extract from his victims no less a sum than $170,000. How did he accomplish this feat?

Hsu sized up his victims with deliberation and let the impression of his extremely persuasive personality sink in long before he approached the subject of money. His apparatus alone were impressive: a large Cadillac automobile with diplomatic license plates and a police siren, a loaded revolver in a shoulder holster which he made no effort to conceal, and photographs of him with Generalissimo Chiang Kai-shek, the President of the Republic of China, apparently reviewing troops. He represented to his victims that he had been a general in the Nationalist Chinese Army, a bodyguard of Generalissimo Chiang Kai-shek, and that he was on intimate terms with the Generalissimo and with Madame Chiang, his wife. He also claimed to be a member of the diplomatic staff of the Republic of China and a man of extraordinary accomplishments in assisting the United States Government which had awarded him the Congressional Medal of Honor.

At the appropriate time, and in a burst of confidence, he would disclose the supposed fact that Generalissimo Chiang Kai-shek was really a prisoner of his own people in Taiwan and that the struggle for power involved his son and perhaps even Madame Chiang. Therefore, some years before, the story went, Chiang Kai-shek had entrusted Hsu with negotiable American securities and jewels, the value of which was variously represented to be worth from between one hundred million dollars to almost one billion dollars, and all of this fortune was in a safe-deposit box in Taiwan to which only Hsu had access. Hsu purportedly had been deputized by Chiang Kai-shek to get this huge fortune to the United States and hold it for safekeeping until the Generalissimo arrived. In the meantime, Hsu was given full power to use as much of the fund as he needed to compensate those who gave much-needed assistance to accomplish the mission. Needless to say, the entire story was a hoax.

The sums obtained from the victims varied substantially in amount, and so did Hsu's stories about his financial requirements. Many of his needs, as he described them, had to do with trips to the Orient, the bribery of Chinese officials, and so on.

We think this is a sufficient background for understanding what occurred in Hsu's apartment on November 22, 1965.

At the entrance door to the apartment, F.B.I. Agent Edgar N. Best immediately put Hsu under arrest and gave him the full Miranda warnings. In his testimony at the pretrial suppression hearing before Judge Sugarman, Agent Best testified that his first concern was to locate any weapons, especially the loaded revolver which Hsu had shown to the various victims. So Agent Best asked Hsu where he kept his pistol, and Hsu replied, "I'll show you." They then walked down a corridor or hallway a distance of some 30 feet and turned to a cupboard. As Hsu was reaching into the cupboard, Agent Best put his arm in first and brought out a shoulder holster containing a loaded.38 caliber revolver. There was a bedroom about four or five feet from the cupboard, and by the time Agent Best took into his possession the loaded revolver Hsu had backed into the doorway of this room, which, as Agent Best discovered by asking him, turned out to be Hsu's bedroom and office. As Agent Best proceeded to unload the weapon, he and Hsu found themselves in the bedroom. This room contained a desk on the surface of which numerous papers were lying, all of which Hsu said belonged to him, also a bureau and a number of flight bags. As Agent Best looked down at the top of the desk, he immediately observed what appeared to be a black.25 caliber automatic. This turned out to be "one of those lighter type things" and not a real pistol, but it might have been seized by Hsu and used to hold the agents at bay and give him a chance to escape. No other weapons were found on Hsu's person.

Agent Best, aided by Agent Hansen, then proceeded to search the contents of the bedroom, taking about an hour and fifteen minutes to do so. Thus they found and seized, another shoulder holster and a hip holster, neither of which contained any weapon, several phony photographs of Hsu and Generalissimo Chiang Kai-shek, a pistol permit, Hsu's United States passport, a brown envelope marked "Max," which concerned Max Ruderian, one of the victims, and several wire communications, telegrams, and receipts, all clearly related to the crimes charged in the indictment. During this search, Hsu was permitted to and did speak with his lawyer over the telephone.

There was no general ransacking or rummaging about in the apartment as a whole although Agent Best took a quick look around to see if a fugitive from justice, who appeared in one of the miscellaneous photographs that were found, might possibly be in the apartment.

I.

We find no infringement of Hsu's constitutional rights under the Fourth, Fifth, or Sixth Amendments. Hsu's admissions on the occasion of the search were made voluntarily; he appeared quite willing to cooperate with the agents after he had been advised that he could remain silent, that whatever he said could be used in court against him, that he had the right to have a lawyer present or, if he could not afford a lawyer one would be provided without expense to him. Furthermore, when Hsu indicated he wanted to call his lawyer, he did so without any hindrance by the Agents.

Thrown in for good measure is a claim that the arrest was only a pretext to justify the search. This more or less common assertion in this type of case is made up out of whole cloth. There is not a scintilla of proof in the record to sustain this charge. The bench warrant was issued between 2 and 3 p.m. on November 22, 1965, and the arrest was made at Hsu's apartment in Riverdale at 5 p.m. There was ...


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