Pon Wing Quong v. United States, 9257.

• Citation: 111 F.2d 751
• Decision Date: 11 June 1940
• Docket Number: No. 9257.,9257.
• Parties: PON WING QUONG v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

111 F.2d 751 (1940)

PON WING QUONG v. UNITED STATES.

No. 9257.

Circuit Court of Appeals, Ninth Circuit.

April 29, 1940.

Rehearing Denied June 11, 1940.

COPYRIGHT MATERIAL OMITTED

Russell P. Tyler, of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This appeal arises from a judgment after conviction of appellant by a jury on three counts of a grand jury indictment for violation of the Jones-Miller Act 21 U.S.C.A. § 174. Another person was indicted with appellant, but such person has not been apprehended. The indictments were:

The first count accuses appellant with fraudulently and knowingly importing into the United States a certain quantity of smoking opium contrary to law, as said defendant then and there knew.

The second count accuses appellant with fraudulently and knowingly facilitating the transportation of the smoking opium referred to in the first count, after its importation and contrary to law, as said defendant then and there knew.

The third count accuses appellant with fraudulently and knowingly concealing and facilitating the concealment of smoking opium after its importation into the United States of America contrary to law, as defendant then and there knew.

Appellant was in the employ of the Canton Express Company and engaged in the duties of an express man. As such he had the privilege of entry to and from the customs corral at San Francisco, California, to pick up baggage for delivery to the owners.

The United States Customs officials had information that an attempt was under way to smuggle into the country contraband smoking opium in an identified trunk by way of the S. S. "President Coolidge", docking in San Francisco from China on or about the 22d day of June, 1939. Customs agents and inspectors had been detailed to watch the trunk, which was delivered from the ship into the corral with other baggage. It was kept under observation from its arrival until shortly before the arrest of the defendant, which happened shortly after the following occurrence as testified to by George W. Stanley, a customs guard.

During the first day the trunk reached the dock, Stanley saw the appellant and others going about their businesses in the corrals. On the next day he observed appellant working near the trunk, and to use the words of the witness, appellant "* * * backed up to the trunk, he was writing on another trunk, then he left and went directly behind that trunk so as to put his back to the trunk. I noticed his hand, and his hand was going up to the upper right corner from where I was, of course I was behind him, and I noticed his hand as though manuevering something there. He then walked away from the trunk."

Thereafter and before anyone else had approached the trunk, Stanley examined it and found a sticker glued to the corner toward which he had seen appellant move his hand. No such sticker had theretofore been on the trunk. The opening of the trunk by the customs officials, revealing the opium therein, and appellant's arrest followed shortly after.

According to testimony, which is not denied, the officers after arresting appellant took him to one of the rooms in the customs quarters and since it was about noon Saturday gave him the alternative of being placed in jail or of staying in the custody of the customs officers until Monday. He chose the latter. From time to time the customs officers questioned him about the importation of the contraband opium, but did not subject him to any grueling questioning. Appellant was visited, at his request, by his father and his sister and at one time was allowed to go to his home in company with guards. He was furnished a blanket and his sister brought him a coat, and although he did not undress he was made comfortable and slept on a sofa. There is no contention but that he was furnished ample food, in fact he was permitted to go out for it in company with the guard, nor that he was deprived of attending to his natural wants at any time. While he was not apprised of his right to remain silent nor that anything he might say could be used against him, no force or pressure or inducement of any kind was shown nor promise of immunity or leniency given. After the father's visit with him on Sunday evening, at which time the two were allowed to talk for fifteen minutes with no others present, the appellant stated that he would talk and at that time the made an oral statement. The following morning appellant's statement was taken in question and answer form, reduced to writing and signed by appellant. This writing was introduced into evidence as a Government exhibit. At this time, and before the commencement of this questioning, appellant was fully apprised of his constitutional rights, and was warned that what he would say might be used against him. Later he made a supplemental statement after again being informed as to his rights, and this statement was also introduced into evidence as a Government exhibit. In the first signed statement, the appellant said that he took the customs label off a box, kept it in his pocket overnight and affixed it to the trunk the next day. He acknowledged that he knew the trunk contained opium. In his second signed statement he said that he learned from a Chinese that a trunk with certain Chinese markings and containing opium would come in on the "Coolidge". The Chinese with whom he talked knew appellant worked in and out of the customs corral and promised "to fix him up" for aid in getting it past the customs. Appellant in his statement admits that he had taken the sticker from a suit box which had been previously examined and had passed the inspection of the customs and placed it upon the trunk. The suit box with a small portion of the sticker on it was introduced into evidence. Appellant's opportunity to take the sticker from the box was established by competent evidence. Appellant did not himself take the witness stand, nor did he offer any testimony.

It is apparent that this evidence is consistent with appellant's statements and consistent with the indictment that the appellant intended to violate the law by knowingly importing contraband opium by the device of affixing to the trunk a sticker from the examined box, which would probably avoid examination of the contents of the trunk.

It should here be stated that appellant is sought to be convicted of the substantive offense only by virtue of the statute which provides that one who aids and abets a principal in the commission of a crime is himself guilty thereof. 18 U.S.C.A. § 550.

Appellant filed a demurrer to the indictment which was overruled by the court and exception was reserved. Appellant refers to the demurrer in his opening brief as follows: "Appellant's general and special demurrer attacked the indictment on the grounds that each and every count of the indictment fails to state facts sufficient to constitute a public offense or a violation of the Act of the Congress of the United States known as the Jones-Miller Act, 21 U.S.C. § 174 21 U.S.C.A. § 174 and as being uncertain and insufficient in failing to allege how or in what manner said appellant acted fraudulently, and in failing to allege essential knowledge upon the part of the defendant in counts two and three, and in other particulars."

His first assignment of error is upon this ruling as related to the first count. He claims that this count in the indictment is bad because it is couched in general terms rather than specifying the acts constituting the crime. He correctly states that the statute in defining the crime for importing any narcotic drug uses the disjunctive "or" between the two words defining the manner chosen by the importer to bring the drug in; that is, quoting from the statute, "If any person fraudulently or knowingly imports," etc. Again he correctly states that the indictment uses the conjunctive "and"; that is, quoting from the indictment, "If any person fraudulently and knowingly imports, etc.". The vice, as appellant sees it, is that since fraud is a relative term facts constituting the fraud must be alleged and this has not been done. He relies strongly upon the case of Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505. But the case is not authority for appellant's point. The opinion in the cited case clearly shows that the reason for requiring allegations of facts constituting the alleged fraud was that the mere importation of diamonds the articles imported was not illegal therefore in that case, in order to state an offense, it was necessary to allege the facts, such as avoidance of customs duties, which made the importation illegal.

The court said in Wong Lung Sing v. United States, 9 Cir., 1925, 3 F.2d 780, 781, "We are of opinion that the charge is sufficient, both as to illegal importation and knowledge of illegal importation. Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505, is to be distinguished. In that case the indictment used the generic expression, `import or bring into the United States' diamonds, contrary to law. It was held that the expression `import and bring into the United States' was vague, and did not convey the necessary information to defendant, because importing merchandise is not per se contrary to law, and could only become so when done in violation of specific statutory requirements, whereas the present statutes absolutely prohibit the importation of opium for smoking purposes."

No such situation was faced by the trial court in the instant case. Here the importation was alleged and it must be remembered that 21 U.S.C.A. § 173¹ makes illegal any and all importation of smoking opium and that 21 U.S.C.A. § 181² creates the presumption that any such drug found in the United States has been "imported contrary to law". In the circumstances, after...