490 F.2d 527 (9th Cir. 1974), 73-2352, United States v. Sin Nagh Fong

Docket Nº:73-2352.
Citation:490 F.2d 527
Party Name:UNITED STATES of America, Appellee, v. SIN NAGH FONG, Appellant.
Case Date:January 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 527

490 F.2d 527 (9th Cir. 1974)

UNITED STATES of America, Appellee,


SIN NAGH FONG, Appellant.

No. 73-2352.

United States Court of Appeals, Ninth Circuit.

January 11, 1974

Page 528

William C. Snouffer, Portland, Or. (argued), for appellant.

Jack C. Wong, Asst. U.S. Atty., Portland, Or. (argued), for appellee.

Before BROWNING and SNEED, Circuit Judges, and BURKE, [*] District judge.



Appellant was charged under a three-count indictment with conspiracy to distribute narcotic drugs and possession of narcotic drugs with intent to distribute in violation of Title 21 U.S.C. §§ 841(a)(1) and 846. The facts which underlie this conviction essentially revolve around four trips by co-defendant Eugene Rogers and a Government informer, Allen Johnson, from Seattle, Washington to Portland, Oregon where Rogers met with Appellant. 1

On December 27, 1972, agents of the Bureau of Narcotics and Dangerous Drugs in Seattle, Washington were contacted by an informer named Allen Johnson regarding possible purchases of heroin from one Eugene Rogers. On December 29, 1972, after federal agents had searched both Johnson's person and his automobile for contraband, the informer was supplied Government funds and followed to Eugene Rogers' residence in Seattle. Surveillance was maintained as the two men proceeded to Portland, Oregon and checked into a motel room. Immediately after their arrival at the motel, Rogers left the room and made a telephone call. Within a short time, Appellant was observed arriving at the motel parking lot and engaging in a brief conversation with Rogers after the latter had entered Appellant's automobile. Following the conversation, Appellant quickly left the area. Later that evening, Johnson and Rogers returned to Seattle. Johnson subsequently turned

Page 529

over to the agents approximately 10.5 grams of heroin which he had obtained from Rogers.

On January 13, 1973, Johnson again contacted the federal agents to inform them of an impending heroin transaction. Johnson and his car were searched for contraband, then followed to Rogers' residence. Surveillance continued as Johnson and Rogers traveled to Portland and checked into a motel in the early hours of the next day. Surveillance was simultaneously being maintained on Appellant, who was observed leaving his residence and meeting with Rogers in the latter's motel room. During this time Johnson was not present, having met with the federal agents, had his person and automobile again searched for contraband, and been instructed to obtain a sample of any heroin which Rogers was able to purchase if possible. After Rogers had left the motel Johnson supplied the agents with a sample, later established to be heroin, which he had taken from a plastic baggie containing approximately 1 ounce of brown powder.

On January 15, 1973, Appellant was seen for the third time meeting with Rogers at a Portland motel. The agents observed Appellant entering Rogers' room, whereupon one of the officers proceeded to station himself in an adjoining room. Without using any form of listening device and without either opening or putting his head to the connecting door between the two rooms, the agent was able to overhear the two discussing their narcotics transactions. 2 Subsequent surveillance verified that Appellant and Rogers were the only two men in the room at that time.

On January 18, 1973, Johnson once again met with the federal agents and was instructed to make a heroin purchase from Rogers. He was searched, followed to Rogers' residence, searched again and given government funds with which to transact the deal. Surveillance was then instituted. Later that evening,

Page 530

the agents saw Rogers meet briefly with Appellant and then return to his home, where Johnson had been left waiting. Johnson subsequently turned over to the federal agents some 22 grams of heroin, which he had purchased from Rogers.

On January 29, 1973, Johnson contacted BNDD agents for the fourth time regarding the heroin activities of Rogers. The agents again placed Rogers under surveillance, following him as he proceeded to drive Johnson's automobile into Portland. In the early hours of the next morning, Rogers was observed checking into a Portland motel. Shortly after...

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