Ginoza v. United States

• Decision Date: 06 June 1960
• Docket Number: No. 15278.,15278.
• Citation: 279 F.2d 616
• Parties: John Seiko GINOZA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.2d 616 (1960)

John Seiko GINOZA, Appellant, v. UNITED STATES of America, Appellee.

No. 15278.

United States Court of Appeals Ninth Circuit.

June 6, 1960.

Howard K. Hoddick, Daniel G. Ridley, Honolulu, Hawaii, for appellant.

Louis B. Blissard, U. S. Atty., Honolulu, Hawaii, for appellee.

Before STEPHENS, POPE, CHAMBERS, BARNES, HAMLEY, HAMLIN, and JERTBERG, Circuit Judges.¹

HAMLEY, Circuit Judge.

John Seiko Ginoza appeals from his conviction on one count of a four-count indictment charging violations of the narcotics laws.² Seven errors, one consisting of three parts, are specified. We find specifications of error 1, 2, 3, 4, 5(a), 5(c), 6, and 7 to be without merit.

Under specification 5(b) appellant argues that the trial court erred in denying his motion to strike testimony given by law enforcement officers concerning statements and admissions made by him after his arrest and prior to being taken before a committing magistrate. Contending that such statements and admissions were made while his appearance before a committing magistrate was being unlawfully delayed, Ginoza invokes Rule 5(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., and the exclusionary rule announced and applied by the Supreme Court in McNabb, Upshaw, and Mallory.³

For the reasons stated below, we hold that specification of error 5(b) is well taken and that the judgment must therefore be set aside and the cause remanded for a new trial on Count III.

It is first necessary to set out in some detail the circumstances surrounding appellant's arrest and interrogation. In doing so we rely exclusively upon the testimony of witnesses called by the prosecution.

Ginoza is a resident of Honolulu. In October 1955 he made a trip to Japan. Customs officials and the agents of the Federal Bureau of Narcotics then assigned to the Territory of Hawaii were aware of Ginoza's departure by airplane for Japan, and were informed that he would return from Japan by airplane on December 13, 1955. At that time they regarded Ginoza as a prime suspect as an illegal importer of narcotics.

After his arrival at the airport at approximately 9:00 p. m. on December 13, 1955, a customs inspector made a very thorough search of Ginoza's baggage. This was done pursuant to special instructions apparently based on information which had reached the Honolulu office of the Federal Bureau of Narcotics.

Fifteen Japanese dolls listed on Ginoza's baggage declaration were examined but no incriminating evidence was found. A white powder contained in a package removed from a coat in Ginoza's suitcase was found to be grape sugar. This is a substance commonly used for the adulteration or cutting of narcotic drugs, principally heroin.

Ginoza was next taken into a separate room at the airport, where the customs agent in charge made a search of his person. Two notebooks were found in Ginoza's clothing. Ginoza was then questioned by the customs officers for thirty to forty-five minutes. The district supervisor of the Federal Bureau of Narcotics was also present and participated in the interrogation.

Ginoza was questioned concerning the dolls and the grape sugar. He pointed to the name of Tadeo Hirai, listed in one of the notebooks, as the person from whom he had purchased the grape sugar in Japan. Tadeo Hirai is also known as Frank T. Hirai. The officers were acquainted with Hirai, and knew that he resided in Honolulu. About two hours after his arrival at the airport Ginoza was released. All of his belongings were returned to him at that time except the package of grape sugar and the notebooks.

On January 4, 1956, officers of the Federal Bureau of Narcotics arrested Hirai and seized narcotics in his possession. They arranged to have him telephone Ginoza and make an appointment to purchase narcotics from Ginoza the following afternoon. Officers watched while Hirai, having first been searched, entered Ginoza's used car lot and returned with a brown bag containing 56.6 grains of heroin.

This incident was later made the basis of Counts I and II of the indictment filed against Ginoza, charging violations of 21 U.S.C.A. § 174, and 26 U.S.C.A. § 4704 (a). In the criminal trial which led to the instant appeal the jury was unable to agree as to Counts I and II.

Immediately after Hirai returned to the officers with the brown bag they went to Ginoza's place of business and placed him under arrest for violation of federal narcotics laws. The arrest was made between 3:15 and 3:30 p. m., on Thursday, January 5, 1956. The officers at once took Ginoza to the office of the district supervisor of the Federal Bureau of Narcotics, in the Federal Building, Honolulu. It was between 3:30 and 3:45 p. m. when they reached this office. As soon as they arrived at the office Ginoza was searched.

An intensive interrogation of Ginoza was then begun. The principal questioner was Robert W. Artis, district supervisor of the Federal Bureau of Narcotics. The other officers who were present during part or all of the questioning were Lowell William Cain and Jesse Joseph Bautista, narcotics agents; John R. Kent, customs agent in charge; John Williams, customs agent; and Roland Yee and Charles Gerlach, deputy United States marshals.

Ginoza was questioned concerning the persons he had talked to on that day; how long Ginoza had known Hirai; what Ginoza and Hirai had been talking about on that day; whether Hirai was the man named in the notebooks; and what Ginoza knew about the narcotics which Hirai had given to the officers. Ginoza insisted that he knew nothing at all about narcotics and that he was not involved in handling narcotics.

After about a half hour of such questioning without obtaining a damaging admission, the officers brought in Hirai and seated him next to Ginoza. A conversation then took place between Ginoza and Hirai. This led to an admission by Ginoza that he had brought into the Hawaiian Islands the heroin which Hirai had turned over to the officers just prior to the arrest. The testimony of Artis concerning this episode is set out in the margin.⁴

This admission was made about 4:10 or 4:15 p. m. About five minutes later Narcotics Agent Cain telephoned to the office of United States Commissioner White, who had his office in the McCandless Building about five blocks away. Cain was informed by someone at Commissioner White's office that the commissioner had departed for home.

Cain's purpose in making this telephone call is not revealed by the record. In any event it was the first attempt which was made to get in touch with a commissioner for any purpose in connection with Ginoza's arrest. There was no immediate effort to reach Commissioner White at his home. White was the only commissioner on duty that day. Two United States district judges maintained chambers in the Federal Building. The record, however, does not indicate that any effort was made to ascertain their availability that afternoon.

After this telephone call to the office of Commissioner White, the questioning of Ginoza continued. In answer to the questions which were then propounded, Ginoza made several damaging statements and admissions. All of these, together with the original admission, were revealed to the jury in the testimony of Government witness Artis. The jury was told that during this part of the questioning Ginoza admitted that he brought the heroin into the Hawaiian Islands in a doll; that he had paid 136,000 yen for it; that he obtained the heroin from a rickshaw boy in Tokyo; that the heroin was packaged in three "papers"; and that the rest of the heroin was in his office, back of a door, describing the exact location.

Artis testified that during this questioning he was "trying to get out of him Ginoza the source of Supply." Government witness Cain testified that Artis questioned Ginoza "at great length." In the course of this question the officers went through the two notebooks with Ginoza page by page and name by name "in order to bring out something in that connection," as Artis put it.

At about 5:10 or 5:15 p. m. two officers were sent out to obtain a warrant to search Ginoza's place of business. While this was being accomplished, the questioning of Ginoza was resumed. Artis again went over the two notebooks with Ginoza in an effort to find out who had supplied the heroin and exactly how much had been brought in. In the course of this further questioning Ginoza again admitted that the heroin was in a doll. He also stated that the individual from whom he had purchased the heroin had packed the drug into the doll. These statements and admissions were passed along to the jury in the course of Artis' testimony.

About 5:30 p. m. the agents came back with a search warrant signed by Commissioner White. Presumably they had found the commissioner at his home, but this is not revealed in the record. There is nothing to indicate whether at the time the agents obtained the search warrant any inquiry was made as to the possibility of bringing Ginoza before Commissioner White that evening.

The officers then took Ginoza with them out to his place of business, arriving there about 5:40 or 5:45 p. m. Ginoza pointed to a section in the back wall of his office, indicating that heroin was hidden there. A cleat was pried from the wall at this place and two cellophane envelopes containing 86.9 grains of heroin were found. Ginoza was then asked to open his safe, which he did. No incriminating evidence was found in the safe. Ginoza then volunteered the statement that it was Hirai who put the heroin behind the cleat.

It was then about 6:30 p. m. The officers took Ginoza back to the Federal Building to be booked. On the next day, January 6, 1956, he was arraigned.

Counts III and IV of the indictment, involving, respectively, 21 U.S.C.A. § 174 and 26 U.S.C.A. § 4704(a), pertain to the heroin found behind the door in Ginoza's office after his arrest and questioning. He was found not guilty on Count IV, but guilty on Count...