Gold v. United States

• Decision Date: 16 June 1967
• Docket Number: No. 21176.,21176.
• Parties: Samuel GOLD, Howard Guy Halbett, John Frank Fusco, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 588 (1967)

Samuel GOLD, Howard Guy Halbett, John Frank Fusco, Appellants, v. UNITED STATES of America, Appellee.

No. 21176.

United States Court of Appeals Ninth Circuit.

June 16, 1967.

Raymond E. Sutton, Las Vegas, Nev., for appellants.

Joseph L. Ward, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and JERTBERG and BROWNING, Circuit Judges.

MADDEN, Judge:

Appellant Gold was convicted of knowingly using a common carrier for the carriage in interstate commerce of obscene film in violation of 18 U.S.C. section 1462 and of conspiring to commit that offense in violation of 18 U.S.C. section 371. Appellants Fusco and Halbett were convicted only of the conspiracy charge. We affirm.

Evidence presented to the jury showed that special agents of the Federal Bureau of Investigation maintained a surveillance during business hours of the premises of the Eastern Film Laboratories in Henderson, Nevada, for several days in October and November, 1965. During this time the special agents observed appellants Gold and Halbett entering and leaving the premises on various occasions.

On November 3, 1965, appellants Gold and Halbett arrived at the film laboratory in a Cadillac automobile. At approximately 2:40 p. m. they were observed loading five cartons into the Cadillac. After the cartons were loaded, Gold and Halbett were seen driving off together. At approximately 3:20 p. m. the vehicle and Gold alone were observed at the United Airlines freight dock at McCarran Field, Las Vegas, Nevada. Gold was then observed to deliver the five cartons to a United Airlines employee, who completed the air waybill. Gold paid the freight charge in cash and departed.

The waybill was made up from information supplied in part by Gold and indicated that the cartons contained "electronic controls." The shipping document and labels on the cartons themselves indicated that the shipper was Pont Distributors of 1020 South First Street, Las Vegas. A government agent had previously determined that 1020 South First Street was a nonexistent address, and the agent had been unable to identify any company by the name of Pont Distributors.

After the shipment had been delivered to United Airlines and appellant Gold had departed, the airlines customer service manager was contacted by the government agents and informed that the agents had reason to believe that the description on the air waybill of the contents of the packages was inaccurate and that the address of the shipper was non-existent. The agents then left the manager's office. Though the manager asked them, they did not reveal what they suspected the true contents of the packages to be.

Sometime thereafter the manager decided to investigate further and directed a freight supervisor to take the shipment to the air freight room. There the supervisor and the manager opened one of the packages and discovered film containers. The manager looked at some of the film and subsequently notified the government agents. The agents returned and viewed the films with a projector. They advised the manager to keep the shipment locked in his office, and they returned the next morning with a warrant and seized the packages.

The packages never were sent on to their destination in New Jersey. It was stipulated that the films which the packages contained were obscene within the meaning of the statute.

Appellant Gold, joined on this point by the other appellants, contends that the trial court committed reversible error in denying several motions to suppress the obscene film which the prosecution offered in evidence. In support of their position that the search of the packages which resulted in discovery of the films was unconstitutional, appellants rely upon the recent decision of this court in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).

In Corngold government agents observed the defendant deliver packages to a Trans-World Airlines agent at the Los Angeles International Airport. When the defendant departed, the government agents informed the transportation agent that they suspected that the packages contained smuggled watches and that they would like to inspect the shipment. They also pointed out that the shipper had incorrectly filled out the air waybill. The transportation agent testified that the government agents asked him to open the package. The employee initially opened one package while the government agents looked on, and then the agents completed opening the package. They found a number of small boxes inside the large package and removed and opened them. They found contraband watches and marked the small boxes for future identification.

On this evidence the court sitting en banc concluded that the search was in substance a search by the federal agents. It found that the airline employee had participated in the search solely to serve the purposes of the government and that the carrier had taken no action on its own behalf when the mislabeling was revealed. The search was without a warrant and the court, finding no circumstances justifying a search without a warrant, reversed the defendant's conviction.

The instant case differs from Corngold in several significant respects. After informing the manager of their suspicions regarding the shipment, the government agents left the premises. The manager, after attending to some other business, made the decision to investigate further. The shipment was taken from the freight area to the air freight room at the manager's direction. No one else was present while the manager and one other employee opened one of the packages. After finding the film and observing its nature, the manager determined that the matter "should be someone else's business." It was another 45 minutes to an hour after discovering the films before he got around to calling the government agents.

We conclude that the initial search of the packages by the airline's employee was not a federal search, but was an independent investigation by the carrier for its own purposes. Unlike Corngold, here the agents did not request that the package be opened, and they were not present when it was opened. The agents had the same right as any citizen to point out what they suspected to be a mislabeled shipping document, and they exercised no control over what followed. What did follow was the discretionary action of the airline's manager and was not so connected with government participation or influence as to be fairly characterized, as was the search in Corngold, as "a federal search cast in the form of a carrier inspection."

While it might be expected that the carrier would not ignore the packages after being advised of the mislabeling by government agents who obviously had more than a citizen's interest in the shipment, the carrier had sufficient reasons of its own for pursuing the investigation. The manager testified that packages suspected of containing something other than what was described on the air waybill were sometimes opened so that the airline would know what was being carried on its airplanes, and so that it could assess proper charges. Despite the manager's inquiry, the government agents did not reveal what they suspected the true contents of the packages to be. His suspicions aroused, the manager had no way to determine whether the contents of the packages were fit for carriage and properly classified except by opening them. This the carrier had the right to do under its tariffs.

These same independent interests of the airline were relied upon by the government in Corngold to support the position that the search was nothing more than a carrier inspection carried out pursuant to the inspection clause of the airline's tariff. Here the facts support that theory. In Corngold they did not. The court below was correct in denying appellants' motion to suppress the films.

At the close of the government's case, the court, in response to the request of government counsel, took judicial notice of the fact that United Airlines is a common carrier engaged in interstate commerce, and so instructed the jury. Appellant Gold assigns this ruling as error. Gold does not contend that a carrier's status as a common carrier is not an appropriate subject of judicial notice. He did not at trial and does not here challenge the testimony of the United Airlines' employees who testified to the airline's interstate, common carrier operations. Rather he bases his objection upon the broad proposition that a court cannot, in a criminal case, take judicial notice of a fact which constitutes an element of the crime charged. He contends that the government's burden of proving every element of the crime charged cannot be fulfilled by the court's taking judicial notice of an element of the crime.

If the appellant's broad proposition is valid, it would mean that in a criminal case in a federal court in which there is a constitutional right to a jury trial, even the most obvious and indisputable facts, such as, for example, the fact that 12 o'clock midnight is in the nighttime, would have to be formally proved, at the risk that the failure to do so would require a reversal of an otherwise valid conviction. It would mean, at least, that the trial judge could not instruct the jury that midnight is in the nighttime.

In the case of State v. Duranleau, 99 N.H. 30, 104 A.2d 519, 45 A.L.R.2d 1166 (1954), Chief Justice Kenison, for the Supreme Court of New Hampshire, said, at page 522:

Many years ago it was stated that "judges are not necessarily to be ignorant in Court of what everyone else, and they themselves out of Court, are familiar with. Lumley v. Gye, 2 El. and Bl., Q.B. 216, 267 (1853)."

In the New Hampshire case the court reversed the conviction because the fact of which the trial judge took judicial notice and so instructed the jury was not indisputable, and the appellate record did not show that the...