77 L. Ed. 2d 110 (1983); see United States v. Asbury, supra, at n.4 (customs agents ordinarily progress from less intrusive to more intrusive forms of search). Additionally, Oboh does not allege that the statements he made were the product of custodial interrogation. In the context of a routine border inspection, Miranda warnings need not be given "unless and until the questioning of the officials becomes an interrogation that is custodial in nature in which information is sought for the purpose of using it against such person in a criminal proceeding." United States v. Henry, supra, at 915. In this case, no custodial interrogation had commenced and Oboh was not entitled to Miranda warnings. Accordingly, the motion to suppress should be DENIED.
2. The Motion to Dismiss
Oboh contends that Count II of the Indictment, which charges a violation of 18 U.S.C. § 545, must be dismissed because it has been unconstitutionally applied to him, is multiplicitous, and the Indictment, charging violations of both § 952 and § 545, violates Department of Justice policy.
In Count II, the Government has alleged that Oboh knowingly and unlawfully brought merchandise, namely a quantity of heroin, into the United States in violation of 18 U.S.C. § 545, the smuggling statute. Oboh contends that by using the general smuggling law in this context, the Government has relieved itself of the burden of establishing specific intent to import controlled substances, as in 21 U.S.C. § 952.
He argues that the smuggling statute "can only be construed to cover legitimate goods which, if not declared, result in loss of revenue to the United States or otherwise effect legitimate retail marketing." See Defendant's Memorandum of Law, filed July 7, 1994, at 4. Oboh also contends that Counts I and III are multiplicitous in that they allege offenses in which the elements in both counts are the same.
"A single offense may not be charged in more than one count of an indictment, lest multiple punishments attach to the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment." United States v. Sugar, 606 F. Supp. 1134, 1144 (S.D.N.Y. 1985); see also Bell v. United States, 349 U.S. 81, 82, 99 L. Ed. 905, 75 S. Ct. 620 (1955). However, "if Congress has defined the offenses charged as distinct and separable offenses, defendants may be charged for these offenses separately." United States v. Sugar, supra. The test to be applied to determine whether there are two offenses or only one offense charged is whether each provision in the count requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932); United States v. Sugar, supra, at 1145.
Count I of the Indictment alleges violations of 21 U.S.C. §§ 952(a), 960(a) and 960(b)(2) in that Oboh intentionally and unlawfully imported 100 grams or more of heroin into the United States from Canada. Section 960 (a) prohibits the knowing and intentional importation or exportation of a controlled substance, contrary to § 952 of that title. Section 952 (a) Provides that "it shall be unlawful ... to import into the United States from any place outside thereof, any controlled substance in Schedule I ...." Count II of the Indictment alleges a violation of 18 U.S.C. § 545 in that Oboh unlawfully brought merchandise into the United States. Title 18 § 545 provides that it is unlawful to bring into the United States "any merchandise contrary to law...."
The elements of a violation of the relevant portion of § 545 are (1) the defendant fraudulently or knowingly (2) imported or brought into the United States (3) any merchandise (4) contrary to law. See Olais-Castro v. United States, 416 F.2d 1155, 1158 (9th Cir. 1969). The element, "contrary to law," is construed by reference to existing statutes. See Olais-Castro, supra, at 1158 n.8. In the context of a smuggling violation under § 545, "contrary to law" refers to the defendant's failure to unload and declare the merchandise at United States customs. Olais-Castro, supra. In contrast, a violation of § 952 is complete when the contraband is brought into the United States, regardless of whether an attempt is made to pass through customs. See United States v. Muench, 694 F.2d 28, 32 (2d Cir. 1982). The failure to declare, as here, renders the act of importation unlawful and is an additional element of § 545 not present under § 952. Similarly, "merchandise," under § 545, need not be a controlled substance, as it must under § 952. Accordingly, as each offense requires proof of a fact not required by the other, the Indictment is not multiplicitous, and the motion to dismiss Count II should be DENIED.
Even assuming that the two counts are multiplicitous, Oboh is not entitled to dismissal of either of the charges. Instead, the proper remedy would be, after conviction on both counts, for the court to enter judgment on one count alone. See Ball v. United States, 470 U.S. 856, 865, 84 L. Ed. 2d 740, 105 S. Ct. 1668 (1985).
Oboh relies heavily on Palmero v. United States, 112 F.2d 922 (1st Cir. 1940), to support his argument the Indictment is duplicitous. In Palmero, the defendants were convicted of violations of the Narcotic Drugs Import and Export Act of 1922, the predecessor to § 952, and the Tariff Act of 1930, a predecessor to § 545. The court set aside the conviction under the Tariff Act, relying on the legislative history of the Opium Act of 1909, the predecessor to the Narcotic Drugs Import and Export Act which, according to the court, removed opium from the provisions of Tariff Act. To resolve what the court perceived as an issue of legislative intent as to whether the Opium Act and the Narcotic Act applied to the same conduct, the court applied a rule of statutory construction that a "general statute must give way in interpretation to the particular statute." Palmero, supra, at 925.
Palmero cannot be considered as controlling or persuasive authority. In Palmero, the court used the same act or conduct test to determine whether there was improper multiplicity. See Palmero, supra, at 925. The court reasoned "if the word 'merchandise' in said § 593(b) of the Tariff Act of 1930 includes any narcotic drug, then a conviction under the Tariff Act would be for the identical act also punishable under the Narcotic Act." Palmero, supra. This approach to the multiplicity issue was not in accordance with the Blockburger test elaborated by the Supreme Court eight years earlier, and represents an analysis which has never been accepted by the Court. See United States v. Dixon, 125 L. Ed. 2d 556, 113 S. Ct. 2849, 2863 n.14 (1993) (reaffirming Blockburger and noting the Court's repeated rejection of a "single transaction" analysis in multiplicity cases).
Further, the decision in Palmero only dealt with opium which, the court concluded, was, as an "international outlaw," not subject to tariff. See Palmero, supra, at 924. Whatever validity the court's conclusion may have had under the system of federal control of drugs that prevailed in 1940, it is clear that it is inapplicable to the present comprehensive scheme, adopted by Congress in 1970, regulating controlled substances including heroin, the controlled substance at issue in the instant case. The legislative history of § 952 indicates that the statute was part of a comprehensive unification of existing statutes, and "is designed to replace all present law (except the smuggling law, 18 U.S.C. 545) relating specifically to the importation and exportation of narcotics and marijuana and to strengthen the present controls over the importation and exportation of depressant and stimulant drugs." H.R. Rep. No. 91-1444 (Pt. 1), 91st Cong., 2nd Sess., p. 71 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4638. Moreover, it is contemplated, under § 952, that controlled substances can be lawfully imported "for medical, scientific, or other legitimate uses, and only in accordance with whatever notification or declaration requirements might be prescribed by the Attorney General." H.R. Rep. No. 91-1444 (Pt. 1), 91st Cong., 2nd Sess., p. 72 (1970), reprinted in 1970 U.S.C.C.A.N., supra. This fact further reinforces the position that the two statutes represent distinct offenses which can be separately prosecuted under Blockburger.
Additionally, the Second Circuit has specifically held that whether an article of merchandise is subject to duty is irrelevant to a violation of § 545. See United States v. Borello, 766 F.2d 46, 51 (2d Cir. 1985); United States v. McKee, 220 F.2d 266, 269 (2d Cir. 1955). Further, the definition of "import" under 21 U.S.C. § 951(a)(1) specifically provides that "import" includes "any bringing in or introduction" of any article of controlled substances into any area of the United States "whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States." Thus, one of the major grounds underlying the court's analysis in Palmero - that opium, as prohibited contraband, was no longer intended to be an article of merchandise subject to the Tariff Act - even if valid in 1940, no longer applies. As this analysis is necessarily limited to opium, any suggestion that it applies to heroin at this time is without foundation.
In Gore v. United States, 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958), the Court was faced with a similar multiplicity argument where the defendant was convicted of and sentenced for violations of the Internal Revenue Code of 1954 and the Narcotic Drug Import and Export Act. Specifically, Gore was accused of selling capsules of heroin and cocaine not "in pursuance of a written order," and not "in the original stamped package or from the original stamped package" in violation of §§ 4705(a) and 4704(a) of the Internal Revenue Code, and with knowledge that the drugs bad been illegally imported in violation of § 2(c) of the Narcotic Import and Export Act.
Writing for the majority, Justice Frankfurter characterized the defendant's argument as urging the Court to read the statutes
as reflecting a unitary congressional purpose to outlaw non-medicinal sales of narcotics. From this the conclusion is sought to be drawn that since Congress had only a single purpose, no matter how numerous the violations by an offender, of the specific means for dealing with this unitary purpose, the desire should be attributed to Congress to punish only as for a single offense when these multiple infractions are committed through a single sale.
Gore v. United States, supra, at 390. Rejecting this argument, and an invitation to reconsider the Blockburger decision, the Court found that the statutes had "different origins both in time and in design" and reflected "the determination of Congress to turn the screw of the criminal machinery - detection, prosecution and punishment - tighter and tighter." Gore, supra. The Court found that the defendant in Gore was properly convicted of all three offenses and was properly sentenced to consecutive terms of imprisonment.
Similarly, the two statutes at issue here, sections 952 and 545, have different origins in time and design. It is "more daring than convincing to suggest" that these different statutes "ought to have carried with them an implied indication by Congress that ... the defendant should be treated as though he committed only one of these offenses." Gore, supra, at 390-391. To the contrary, "both in the unfolding of the substantive provisions of law and in the scale of punishments, Congress has manifested an attitude not of lenity but of severity toward violation of the narcotics laws." Gore, supra, at 391. The same may fairly be said as to the prosecution of Oboh's conduct in this case. As there is neither an express nor implied congressional intent to punish only one of Oboh's offenses, Count II of the Indictment should not be dismissed.
Aside from double jeopardy, Oboh has raised no articulable constitutional impediment to the charges as contained in the Indictment. Additionally, contrary to Oboh's contentions, see Defendant's Memorandum of Law dated July 7, 1994, at 10-12, neither the sentencing guidelines nor Department of Justice policy prevents the Government from charging Oboh with violations of both the smuggling statute and § 952. It is established that a violation of internal Justice Department policy confers no rights on a defendant. See United States v. Ng, 699 F.2d 63, 71 (2d Cir. 1983). Furthermore, the sentencing guidelines do not support Oboh's argument that § 545 is not intended to address the smuggling of controlled substances. The introductory commentary to § 2T3.1 states that the section applies to violations involving revenue collection or trade regulation, and not to the importation of drugs or other contraband. That is not to say that § 545 does not apply in cases where the defendant is accused of the importation of controlled substances or other contraband, but rather that this particular guideline does not address such a situation. In such a case, § 2T3.1 would be inapplicable, and the sentencing court is directed to refer to a more specific guideline involving controlled substances.
Based on the foregoing analysis, the Defendant's motions to suppress evidence and to dismiss Count II of the Indictment should be DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: October 21st, 1994
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: October 21st, 1994
Buffalo, New York
60TH Congress 2d Session
House of Representatives
Report No. 2003
PROHIBITING THE IMPORTATION AND USE OF OPIUM FOR OTHER THAN MEDICINAL PURPOSES
February 1, 1909
MR. PAYNE, from the Committee on Ways and Means, submitted the following
[To accompany H.R. 27427]
The Committee on Ways and Means, to whom was referred the bill (H.R. 27427) to prohibit the importation and use of opium for other than medicinal purposes, having had the same under consideration, report it back to the House without amendment and recommend that the bill do pass.
This bill prohibits the importation of opium into the United States from and after the 1st day of April next, with a proviso that opium for medicinal purposes may be imported, upon payment of the duty prescribed by law and under regulations to be prescribed by the Secretary of the Treasury.
Section 2 is drawn substantially after section 3082 of the Revised Statutes, and provides safeguards for rendering effective the provisions of section 1, and for the punishment of offenders, etc.
Section 3082, above referred to, covers all articles imported contrary to law, and would possibly cover prohibited opium, without its reenactment as section 2 of this act, but this can certainly be no valid objection to including its provision here, and applying it specifically to opium as is done in section 2. Section 3082 was enacted in 1799 originally, amended in 1866 and 1876, and has stood the test of judicial examination in several cases.
60TH Congress 2D Session
HOUSE OF REPRESENTATIVES
Report No. 1878
January 19, 1909
MR. MANN, from the Committee on Interstate and Foreign Commerce, submitted the following
[to accompany H.R. 24863]
The bill as reported only affects opium imported for smoking and does not affect opium imported for medicinal purposes. Section 2 of the bill applies to opium brought into the country contrary to law, the language of section 3082 of the Revised Statutes now affecting merchandise brought into the country contrary to law. Section 1 of the bill has the approval of the manufacturing pharmacists, as smoking opium is not used for medicinal purposes.