750 F.2d 1197 (3rd Cir. 1984), 83-5909, United States v. Glasser

Docket Nº:Appeal of Leonard Steven GAZA in No. 83-5909.
Citation:750 F.2d 1197
Party Name:UNITED STATES of America v. Robert Ray GLASSER, Leonard Steven Gaza, Arthur Blair Erdlen, Daniel Lee Tomko.
Case Date:December 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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750 F.2d 1197 (3rd Cir. 1984)



Robert Ray GLASSER, Leonard Steven Gaza, Arthur Blair

Erdlen, Daniel Lee Tomko.

Appeal of Leonard Steven GAZA in No. 83-5909.



Robert Ray GLASSER, Leonard Steven Gaza, Arthur Blair

Erdlen, Daniel Lee Tomko.

Appeal of Arthur Blair ERDLEN in No. 83-5929.

Nos. 83-5909, 83-5929.

United States Court of Appeals, Third Circuit

December 27, 1984

Argued Aug. 13, 1984.

Rehearing and Rehearing In Banc Denied in No. 83-5909, Jan. 22, 1985.

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[Copyrighted Material Omitted]

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G. William Bills, Jr. (argued), Pittsburgh, Pa., for appellant Leonard Steven Gaza in No. 83-5909.

Stanton D. Levenson (argued), Pittsburgh, Pa., for appellant Arthur Blair Erdlen in No. 83-5929.

J. Alan Johnson, U.S. Atty., Constance M. Bowden (argued), Asst. U.S. Atty., Thomas Lieber, Legal Intern, Paul J. Brysh, U.S. Atty.'s Office, Pittsburgh, Pa., for appellee.

Before ALDISERT, Chief Judge, WEIS, Circuit Judge, and RE, Judge [*].


RE, Chief Judge:

Appellants, Leonard Steven Gaza and Arthur Blair Erdlen, appeal from judgments of conviction entered against them on November 14, 1983, following a jury trial in the United States District Court for the Western District of Pennsylvania. Both appellants were convicted of conspiracy to import marijuana, in the form of hashish oil, in violation of 21 U.S.C. Sec. 963, unlawful importation of marijuana into the United States, in violation of 21 U.S.C. Sec. 952(a), and of using the United States mail to facilitate the importation of marijuana, in violation of 21 U.S.C. Sec. 843(b). Appellant Gaza was sentenced to two years imprisonment, and appellant Erdlen was sentenced to three years imprisonment and fined $10,000. Both appellants also received a special parole term of three years imposed pursuant to 21 U.S.C. Sec. 960(b)(1).

The appellants contend that the district judge erred in denying their pretrial motion to suppress evidence which, they allege, was illegally obtained. Initially, appellants argue that Customs was required to have "reasonable cause to suspect" a violation of the law before searching two packages mailed from Jamaica. In addition, appellant Gaza contends that the district judge improperly concluded that there was probable cause for his warrantless arrest. Appellant Gaza also contends that the district judge abused his discretion by summarizing the contentions of the parties in his instructions to the jury. Finally, appellants contend that, since the special parole provision, 21 U.S.C. Sec. 960(b)(1), neither designates a maximum term nor restricts a trial judge's power to punish parole violations, it is an unconstitutional denial of due process.

Since we find all contentions of appellants without merit, we affirm the judgments of conviction as well as the imposition of the special parole terms ordered by the district court.

The Facts

On June 1, 1983, two packages containing carved wooden heads and other items arrived at the Miami, Florida post office from Jamaica. The packages were addressed to Robert Glasser and Daniel Tomko, both Pennsylvania residents. The return addresses indicated they were sent by a "Devon Reynolds" of Negril, Jamaica. Both packages were inspected by a mail technician in the United States Customs Service's Foreign Mail Division in Miami, Florida. The mail technician, as part of her inspection, opened the packages, removed the wooden heads and drilled a small hole in the back of each head. A black, oily substance, later determined to be hashish oil, was found inside. The local Drug Enforcement Administration (DEA) office in Miami was notified, took possession of the heads, and arranged for a controlled delivery of the packages with the aid of the Pittsburgh postal authorities. Pursuant to a court order, an electronic transmitter was installed inside the wooden heads so that DEA officials would be alerted when the heads were opened.

On June 14, 1983, the package addressed to Robert Glasser was delivered to his residence. At that time, DEA agents, with a

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warrant to search Glasser's home, were conducting surveillance of his home, but did not have a working receiver to detect the signal from the transmitter. Shortly after the package was delivered, appellant Gaza drove to Glasser's house in his van and went into the house. Approximately five minutes later, a DEA agent observed Gaza leaving Glasser's home with a brown package. Since the agent believed that Gaza was carrying the control package, he radioed another agent to intercept Gaza in Glasser's driveway. As the agent approached Gaza's van, he saw a brown bag on the front seat. Gaza was arrested as he attempted to drive away, and the brown bag which contained the carved wooden head was seized.

Later that morning, the second parcel was delivered to the residence of Daniel Tomko. Thereafter, DEA agents observed appellant Erdlen enter Tomko's residence. Approximately ten minutes later, Erdlen departed carrying a carved wooden head. A DEA agent prevented Erdlen from leaving in his car, arrested him, and seized the wooden head from the front seat of the car.

Four questions are presented on this appeal: 1) whether a Customs inspector must have "reasonable cause to suspect" a violation of the law in order to open a package entering the country through the mails; 2) whether the district court erred in not suppressing the evidence which had been seized as a result of appellant Gaza's warrantless arrest; 3) whether it was an abuse of discretion for the district judge to summarize the contentions of the parties in his instructions to the jury; and 4) whether the imposition of a special parole term, pursuant to 21 U.S.C. Sec. 960(b)(1), is an unconstitutional denial of due process.

We hold that the border search and the subsequent arrest of appellant Gaza were valid. Since we also hold that the summarizing of the contentions of the parties was not an abuse of discretion, and that 21 U.S.C. Sec. 960(b)(1) does not violate appellants' due process rights, we affirm.

As a preliminary matter, we note that there may be some question as to the standing of the appellants to challenge the search of the packages since neither package was addressed to or sent by either appellant. Compare United States v. Richards, 638 F.2d 765, 769-70 (5th Cir.), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981), with United States v. Watson, 551 F.Supp. 1123, 1127 (D.D.C.1982). This question, however, has not been raised by the Government, and, since we uphold the legality of the searches, we need not consider it. See United States v. Ramsey, 431 U.S. 606, 611 n. 7, 97 S.Ct. 1972, 1976 n. 7, 52 L.Ed.2d 617 (1977); United States v. Santana, 427 U.S. 38, 41 n. 2, 96 S.Ct. 2406, 2409 n. 2, 49 L.Ed.2d 300 (1976).

Border Search of Mail and Packages

Initially, we must determine whether the Customs Service must have "reasonable cause to suspect" a violation of the law in order to open a package at a port of entry mailed into the United States from abroad. Since we have determined that, under the Constitution and the applicable statutes and regulations, Customs has the authority to search packages without articulating a "reasonable cause to suspect," we hold that the evidence obtained as a result of the search in Miami was properly admitted.

As a sovereign nation, "the United States is vested with all the powers of government necessary to maintain an effective control of international relations." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936) (quoting Burnet v. Brooks, 288 U.S. 378, 396, 53 S.Ct. 457, 461, 77 L.Ed. 844 (1933)). These powers of external sovereignty predate even the Constitution. They passed to the United States upon the cessation of the exercise of sovereignty by Great Britain. Curtiss-Wright Export Corp., supra, 299 U.S. at 316-17, 57 S.Ct. at 219-20. One of the inherent powers of a sovereign is the power to restrict or regulate the entry of persons and property across the border. Indeed, Congress is specifically authorized in the Constitution

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to regulate commerce with foreign nations. U.S. Const. art. I, Sec. 8, cl. 3.

It cannot be questioned that Congress has plenary power to police the borders of the United States. See, e.g., United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 126, 93 S.Ct. 2665, 2667, 37 L.Ed.2d 500 (1973); Weber v. Freed, 239 U.S. 325, 329, 36 S.Ct. 131, 132, 60 L.Ed. 308 (1915); Buttfield v. Stranahan, 192 U.S. 470, 492, 24 S.Ct. 349, 353, 48 L.Ed. 525 (1904). In the early days of the Republic, Chief Justice Marshall expounded the fundamental principle of territorial sovereignty: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself." Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 136, 3 L.Ed. 287 (1812). As an inherent right of sovereignty, the power to protect the border "is complete in itself, acknowledging no limitation other than those prescribed in the Constitution." Brolan v. United States, 236 U.S. 216, 218, 35 S.Ct. 285, 285, 59 L.Ed. 544 (1915) (quoting Buttfield, supra, 192 U.S. at 492, 24 S.Ct. at 353). As Chief Justice Burger emphasized in United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), "[i]mport restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations.... Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry." Id. at 125, 93 S.Ct. at 2667. See United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977); United States v. Thirty-seven...

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