United States v. Francis, 72-2439.
| Decision Date | 01 April 1974 |
| Docket Number | No. 72-2439.,72-2439. |
| Citation | 487 F.2d 968 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Herman FRANCIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James R. Gillespie, San Antonio, Tex. (Court-appointed), for defendant-appellant.
William S. Sessions, U. S. Atty., Joel D. Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before JONES, GOLDBOLD and INGRAHAM, Circuit Judges.
Certiorari Denied April 1, 1974. See 94 S.Ct. 1615.
Herman Francis appeals from his conviction of importing heroin into the United States in violation of 21 U.S.C.A. § 952(a).
Francis, who was in the military service, left his unit in Viet Nam on February 1, 1972 and arrived at Ton Son Nhut Air Base in Saigon, Viet Nam, to return to the United States. Appellant left Viet Nam from that air base on February 5, 1972.
On or before February 4, 1972 four air mail envelopes having approximate dimensions of 6½ by 3½ inches were placed in the United States Army Mail Depository at Da Nang Air Force Base in Viet Nam addressed either to the appellant or to the appellant and his wife at an address in San Antonio, Texas. Each envelope had the word "Free" typed in the upper right hand corner.
On February 4, 1972, Army Captain George Dell, the postal officer for appellant's unit in Viet Nam, forwarded the four envelopes to the Bureau of Customs in San Francisco with an accompanying letter stating that the four envelopes were suspicious mail possibly containing contraband matter.
Each envelope felt "spongy" to the touch and masking tape wrappings around a package inside each envelope were visible through the envelopes.
The four envelopes and Captain Dell's letter were received on February 10, 1972 by Mrs. Leonora Barnes, a United States Customs Mail Entry Aide at the Oakland, California Customs Facility. Mrs. Barnes opened the envelopes and found a powdery white substance inside of each. No written or printed matter of any kind was in any of the envelopes. After obtaining the result of a test showing that each of the envelopes contained a contraband opiate derivative, Mrs. Barnes returned the contents to the individual envelopes.
On February 18, 1972 the four envelopes and their contents were forwarded to Postal Inspector Xavier Harrison in San Antonio, Texas, who received them on February 22, 1972. On February 24, 1972 Inspector Harrison delivered the envelopes to Special Agent Willis Dean Walker of the United States Customs Service in San Antonio. Harrison and Walker then took the letters to a United States Customs laboratory.
The laboratory analysis disclosed that the substance contained in the envelopes was heroin, and, after this determination was made, a portion of the heroin, mixed with lactose, was returned to each of the four envelopes. Agent Walker made and filed with the United States Magistrate a sworn complaint stating that the envelopes containing heroin were mailed from Viet Nam to Francis or to Francis and his wife at a time when Francis was in Viet Nam. A warrant for the arrest of Francis was issued.
A postage due notice was sent to the address on the envelopes. The appellant appeared and paid the postage due on the envelopes and picked them up at a post office substation in San Antonio. The appellant took the envelopes to his car and placed them on the front seat beside him. He was then arrested by Agent Walker who again took possession of the four envelopes and their contents.
The indictment charged that "Francis knowingly and intentionally imported and caused to be imported approximately eight and one-half (8½) grams of heroin, (a Schedule I narcotic drug), into the United States from South Vietnam, in violation of Title 21, United States Code, Section 952(a)." The statute provides:
"It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I including heroin. . . . of subchapter I of this chapter, except . . ." 21 U.S.C.A. § 952(a).
Francis filed a timely motion to suppress the four envelopes and their contents. The motion was overruled. At the trial the envelopes and their contents were offered in evidence and, over Francis' objection, were received in evidence along with testimony as to the nature of the matter enclosed in the envelopes. The primary basis for the appellant's contention is the claim that the mailed material was First Class mail and as such was free from search in the absence of a warrant. By statute it is provided that "only an employee opening dead mail by authority of the Postmaster General, or a person holding a search warrant authorized by law may open any letter or parcel of the first class which is in the custody of the Postal Department." 39 U.S.C.A. § 4057. It is further provided that "first class mail consists of mailable (1) postal cards, (2) post cards, (3) matter wholly or partially in writing or typewriting, except as provided in sections 4365, 4453, and 4555 of this title, and (4) matter closed against postal inspection." 39 U.S.C.A. § 4251(a).
The four envelopes sent from Viet Nam were obviously not postal cards or post cards; they were not in fact nor in appearance matter wholly or partially in writing or typewriting; they were not within the provisions of Sections 4365, 4353 or 4355. The four envelopes were not matter closed against postal inspection as appears from the following pertinent Postal Regulation:
"All mail originating outside the customs territory of the United States is subject to customs examination, except (a) mail addressed to Ambassadors and Ministers (Chiefs of Diplomatic Missions) of foreign countries, (b) letter mail known or believed to contain only correspondence or documents addressed to diplomatic missions or the officers thereof, or international organizations designated by the President as public international organizations pursuant to the International Organizations Immunities Act, and other mail addressed to such international organizations pursuant to instructions issued by the Department of the Treasury, and (c) mail known or believed to contain only official documents addressed to officials of the U. S. Government." 39 C.F.R. § 61.1.
No gloss upon the provisions hereinbefore quoted is required to show that the mailed matter of this case is not entitled to any First Class mail exemption from search and seizure.
It is urged most persuasively by the Government that the right to search matter coming into from without the United States exists even though the search is of First Class mail. The statute provides:
"Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a...
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