United States v. Berard

• Citation: 281 F. Supp. 328
• Decision Date: 11 March 1968
• Docket Number: 67-306.,Crim. A. No. 67-305
• Parties: UNITED STATES of America, Plaintiff, v. Jean BERARD, also known as Jean Francois Bouillon, Defendant. UNITED STATES of America, Plaintiff, v. Giovanni LAI, also known as Salvatore Lamanna, Defendant.
• Court: U.S. District Court — District of Massachusetts

281 F. Supp. 328

UNITED STATES of America, Plaintiff, v. Jean BERARD, also known as Jean Francois Bouillon, Defendant.

UNITED STATES of America, Plaintiff, v. Giovanni LAI, also known as Salvatore Lamanna, Defendant.

Crim. A. Nos. 67-305, 67-306.

United States District Court D. Massachusetts.

March 11, 1968.

COPYRIGHT MATERIAL OMITTED

Paul F. Markham, U. S. Atty., Albert F. Cullen, Asst. U. S. Atty., for plaintiff.

Bernard J. Dwyer, Boston, Mass., for defendants.

OPINION

JULIAN, District Judge.

This matter came before the Court on the identical motions of both criminal defendants to suppress certain physical evidence and certain incriminating statements allegedly made by them. Evidence was received in a two-day hearing at which defendants were represented by counsel.

Since neither defendant speaks English but both are fluent in French, the Court appointed an interpreter who not only assisted the defendants in conferring with their counsel but who also translated simultaneously for them into French all that was said at the hearing.

Each defendant is charged in a separate indictment with fraudulently and knowingly importing and bringing into the United States approximately three kilograms of heroin, in violation of 21 U.S.C. Section 174.

On the basis of the evidence presented I make the following findings of fact.

On the evening of October 24, 1967, Customs Port Investigators Killeen, DiGiampaolo, Gouliaski, Roberson, and Uliano were assigned to the international section of Logan International Airport in Boston. Their duties included surveillance of persons arriving in the United States on international flights in order to enforce customs laws and regulations.

The international section of Logan Airport consists of a second story, where all incoming passengers on international flights are inspected by personnel of the United States Public Health Service, and a lower level consisting of a large room containing immigration counters, baggage carousels, and customs inspection counters. Connected to this large room are two separate, but adjoining, personal search rooms.

Incoming passengers who have been cleared through the Public Health section descend to the lower level where, after passing through immigration counters where passports are produced and examined, they proceed into the center of the large room, claim their baggage from either of two carousels, and then pass through one of several counters where customs officials inspect their baggage. Egress from this room can be had only through a single exit leading into the public sections of the airport. Access to this international section is restricted to federal public health, immigration and customs personnel, certain airline employees, and passengers on incoming international flights.

At about 8:15 P.M. on October 24, 1967, Customs Port Investigator Killeen was standing, in plain clothes, within the international section observing newly arrived international passengers as they passed through the immigration counters. Killeen, whose purpose was to detect violations of customs laws and regulations, noticed defendant Berard as Berard passed through the immigration counter. Killeen's attention was attracted to Berard by the stiffness of his bodily movements as he bent forward to lift his luggage from the carousel and by the bulges on his body. Killeen therefore moved to the exit which led into the international section of the airport. As Berard, after passing through a baggage inspection counter, approached the exit, Killeen approached him, displayed his badge, and in English identified himself as a customs officer. Berard responded by asking that Killeen speak in French or Spanish. Killeen asked, in German, if Berard spoke German. Having failed to find a common language, Killeen, proceeding through a combination of English and gestures, asked to inspect the pocket of the topcoat over Berard's arm. Berard handed over the topcoat, but Killeen's examination of it revealed nothing.

Killeen then pointed to Berard's midriff and asked what Berard had around his body. In the process of pointing, Killeen felt on Berard's body something which, he testified, felt like tape. Berard indicated what Killeen understood to mean that Berard was sick. Killeen at some point in this exchange requested, and received from Berard, the latter's passport. The investigator then, with the aid of gestures, escorted Berard to one of the two personal search rooms within the international area.

At approximately this time (between 8:20 and 8:25 P.M.) Customs Port Investigator DiGiampaolo, who also was observing international passengers as they passed through the immigration counters, noticed defendant Lai, who appeared very nervous and fidgety, and whose overcoat pocket bulged. Investigator DiGiampaolo also overheard Lai mention the Boston Hotel. After observing Lai proceed to the baggage carousel and claim his bag, DiGiampaolo instructed Customs Port Investigator Charles Gouliaski, who was stationed in uniform near the exit, to intercept and detain Lai before Lai left the international section.

After observing Investigator Gouliaski do this, Investigator DiGiampaolo proceeded to a personal search room, where Berard was being detained. Once there, DiGiampaolo examined Berard's passport, noticed that the United States address therein listed was the "Boston Hotel," and immediately left the personal search room to get defendant Lai, whom Investigator Gouliaski had already detained.

When Investigator Gouliaski stopped defendant Lai near the exit and started with him toward the personal search room, they were joined by Customs Port Investigator Uliano. The only conversation with Lai at this time consisted of Gouliaski's inquiry whether Lai spoke English, to which Lai shook his head, "No," and Uliano's demand that Lai empty his pockets, which Lai did. The pockets contained two paper boxes each containing vials filled with white powder.

At this time Investigator DiGiampaolo arrived and, in Italian, asked Lai if the latter understood Italian. Lai responded that he did. DiGiampaolo then asked Lai what the vials contained, and Lai responded in Italian that they contained medicine. Lai also said that he had brown pills which were medicine, and in response to a further question said that he had no "needles" on his person. This was the extent of the conversation at that time. Lai was escorted into a personal search room by Investigators Uliano and Roberson, while Gouliaski and DiGiampaolo went ahead to conduct identification tests on the powder in the vials.

Once Lai was in the personal search room, Investigator DiGiampaolo asked him, in Italian, to remove his outer jacket, which Lai did. DiGiampaolo then saw distinct bulges beneath Lai's shirt. Upon the investigator's further request, Lai removed his shirt, revealing that his entire trunk, from waist to armpits, was encased in white tape. Protruding from the tape were a number of transparent plastic bags, each containing white powder. DiGiampaolo asked the defendant what was contained in the packages, and Lai responded, "Heroin."

During this time defendant Berard was being detained in a separate, adjoining personal search room. Shortly after arriving in the room with Berard, Investigator Killeen, in the company of DiGiampaolo, asked Berard to remove his coat and open his shirt. Berard complied. Killeen then "frisked" Berard in a search for concealed weapons, but found none. Berard's open shirt, however, disclosed that he, like Lai, was bound in tape from waist to armpits. Transparent plastic bags protruded from the tape. Killeen asked Berard what he had strapped to his body, to which question Berard shrugged, indicating that he did not understand the question.

The defendants were then directed to wait in one of the search rooms, while Investigator DiGiampaolo telephoned Customs Agent Desmond at the Custom House in Boston.

Up to this time neither defendant had been advised of his rights.

Agent Desmond, who cannot speak Italian or French, arrived at the scene approximately fifteen minutes later, at 9:00 P.M. Upon ascertaining through Investigator DiGiampaolo that defendant Lai understood Italian and that Lai and Berard could communicate in French, Agent Desmond, in English, asked DiGiampaolo to advise defendant Lai, in Italian, that he was under arrest¹ for smuggling narcotics into the United States. Agent Desmond also directed DiGiampaolo² to ask Lai to translate a similar message, in French, to defendant Berard. Lai purported to do so. This trilingual chain was used throughout the conversation that followed.

Agent Desmond then directed DiGiampaolo to advise both defendants by this method that they did not have to make any statement and that any statement they might make would be used against them, possibly in court. Desmond asked through DiGiampaolo if they understood, and both defendants nodded that they did. Desmond further directed DiGiampaolo to advise both defendants that they had a "right to counsel" and that if they "could not afford counsel that one would be appointed by the court for them." That was the extent of the warning given at this time to the defendants and was the only warning given to defendant Lai.

Lai responded to this by stating that he wanted to have counsel. He also said, however, that he was willing to tell Agent Desmond what he had intended to do with the drugs. After the agents cut the tape and plastic bags from his body, Lai, in the presence of Berard, proceeded to tell Desmond through DiGiampaolo of an elaborate plan by which Lai, wearing a hat, displaying a red handkerchief, and carrying a French newspaper, was to have delivered the heroin to a contact in front of the Air France counter at the airport.

It is clear from the evidence introduced at the hearing that the defendants were jointly engaged in the execution of a plan to smuggle heroin into the United States. The evidence also shows that...