Kaneshiro v. United States

• Decision Date: 10 August 1971
• Docket Number: No. 26273.,26273.
• Citation: 445 F.2d 1266
• Parties: Richard Kenichi KANESHIRO, a.k.a. Richard Higa, and George Ekita, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 1266 (1971)

Richard Kenichi KANESHIRO, a.k.a. Richard Higa, and George Ekita, Appellants, v. UNITED STATES of America, Appellee.

No. 26273.

United States Court of Appeals, Ninth Circuit.

June 1, 1971.

Rehearing Denied August 10, 1971.

Yoshio Shigezawa (appeared), Wallace S. Fujiyama, Honolulu, Hawaii, for appellant.

Joseph M. Gedan, Asst. U. S. Atty., (appeared), Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for appellee.

Before KOELSCH, CARTER and KILKENNY, Circuit Judges.

KILKENNY, Circuit Judge:

Appellants were indicted, tried by a jury and convicted of transporting firearms in foreign commerce without a license and of conspiracy to transport firearms in foreign commerce without a license, both in violation of 15 U.S.C. § 902(a). They appeal. We affirm.

Factual Background

Appellant Kaneshiro was employed as a baggage and cargo handler for Pan American Airways. In May, 1967, in Tokyo, Japan, he and an acquaintance, Nyuk Lin Loo, entered into a joint venture with a Tokyo resident, Townsend, to ship guns from Hawaii to Japan and there sell them. Upon returning to Honolulu, Kaneshiro obtained six or seven new pistols, put them in a suitcase, and contacted Raymond Tom, the cargo supervisor for Pan American. Kaneshiro told Tom that the suitcase was excess baggage belonging to Loo, and asked Tom's help in shipping the suitcase to Tokyo in the near future. The ostensible purpose behind seeking Tom's assistance was to help Loo avoid paying an excess baggage charge. Tom agreed to ship the suitcase, provided it did not contain any contraband. Kaneshiro assured him it did not.

In early June, 1967, Kaneshiro, Loo and another man, identified by Tom as appellant Ekita, met Tom at the airport to discuss plans for the shipment of the suitcase. After this meeting, Ekita went to Tokyo where he contacted Townsend to prepare for marketing the pistols. During this time Kaneshiro was completing arrangements for the shipment.

On June 13, 1967, Kaneshiro told Tom that he had Loo's suitcase, together with two cases of pineapples, ready to go. Tom placed the suitcase and pineapples on a Pan Am flight to Tokyo, and Loo departed for Tokyo on a different flight. The suitcase arrived as planned, and was unloaded by Chujo, another Pan Am cargo handler, whom Tom had contacted. The guns were then picked up by Ekita, Loo and Townsend, who began looking for buyers. One pistol was sold to a person named Tanaka, and, after much difficulty, arrangements were made to sell the remaining guns to a person named Okaji. Before the sale was consummated, however, all parties were arrested by the Tokyo police. In Honolulu, Tom learned of the arrest, and asked Kaneshiro if the suitcase had contained guns. Kaneshiro replied in the affirmative, and said that a taxi driver was going to "take the rap." Kaneshiro was eventually arrested, and he and Ekita were charged as co-defendants with the offenses set forth in the indictment. Loo died prior to the trial.

Issues

Although appellants raise a multiplicity of issues, only the following questions merit discussion: (1) the sufficiency of the indictment; (2) the sufficiency of the evidence; (3) the adequacy of the court's instructions; (4) the receipt in evidence of certain statements made by appellants; (5) the admission into evidence of an extrajudicial written statement given by Tom to a customs agent; (6) the trial court's refusal to grant a mistrial; and (7) the trial court's refusal to give a "cautionary" instruction requested by appellants.

(1) Appellants were charged with violating 15 U.S.C. § 902(a), which makes it a crime "* * * for any manufacturer or dealer, except a manufacturer or dealer having a license issued under the provisions of this chapter, to transport, ship, or receive any firearm or ammunition in interstate or foreign commerce." Count I of the indictment charged that appellants "* * * willfully and knowingly did transport and cause to be transported in foreign commerce from * * * Hawaii to Tokyo * * *" certain firearms without a license; Count II charged that appellants conspired with Loo to commit the above crime.

Relying primarily on Carlson v. United States, 296 F.2d 909 (9th Cir. 1961), appellants claim that the indictment failed to charge a crime because it omitted an essential element of the offense proscribed by § 902(a), namely, that appellants were "manufacturers" or "dealers" within the meaning of that section. In Carlson, an amended information charged the defendant with willfully giving false information to an airline stewardess concerning an attempt to place explosives on a commercial aircraft. The information failed to include an essential element of the offense charged, i.e., that the defendant told the stewardess that the explosives had been placed with intent to damage or destroy the plane. This court held that the information failed to charge a crime, and reversed the conviction.

Carlson is distinguishable from the instant case in two important respects. There, there was no reference in the body of the information to the statute allegedly violated, but only a marginal notation.¹ Here, each count directly charged appellants with a "violation of § 902(a) of Title 15, United States Code." Hence, the appellants, unlike the defendant in Carlson, were fully apprised of the nature of the charges against them. Secondly, counsel for appellants had an excellent chance to call the trial court's attention to the alleged defect in the indictment at the time he was discussing with the court and the prosecutor the instructions to be given. Not only did counsel fail to object to the defect, but the record shows that he affirmatively assisted in preparing the instruction on the essential elements of the crimes and made no attempt to include a definition of the term "dealer" or "manufacturer" in the instruction. There was no such record before the court in Carlson.

While the indictment in our case is obviously an example of poor draftsmanship, we do not think it is fatally defective. The indictment is here being challenged for the first time. This fact alone does not preclude our consideration of its sufficiency, Carlson v. United States, supra, but under these circumstances the standard for sufficiency is "* * * that the necessary facts appear in any form or by fair construction can be found within the terms of the indictment." Hagner v. United States, 285 U.S. 427, 433, 52 S.Ct. 417, 420, 76 L.Ed. 861 (1932); Ramirez v. United States, 318 F.2d 155, 157 (9th Cir. 1963). Here, the indictment alleged that the firearms were unlawfully transported "in foreign commerce." The phrase "interstate or foreign commerce" is defined in 15 U.S.C. § 901(2), to mean "* * * commerce between any State, Territory or possession (not including the Canal Zone), or the District of Columbia, and any place outside thereof. * * *" Commerce, in turn, has been defined as "* * * trade: business in which persons have bought and sold, bargained and contracted." United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 539, 64 S. Ct. 1162, 1166, 88 L.Ed. 1440 (1944). A dealer is defined in 15 U.S.C. § 901(5) as "* * * any person engaged in the business of selling firearms or ammunition. * * *" Thus, the phrase "in foreign commerce" suggests that the transaction was a business venture which necessarily involved a dealer. Moreover, the appellants were in no way prejudiced by the inartful wording of the indictment. As mentioned above, both counts contained express allegations charging violations of the statute. On such a record, the missing statutory elements could properly be implied. Ramirez v. United States, supra; Stein v. United States, 313 F.2d 518 (9th Cir. 1962).

(2) Next, appellants contend that there was no evidence, outside of the single shipment of guns to Tokyo, from which the jury could reasonably have inferred that either of them was a dealer. An isolated transaction, while not in itself a business, is, nevertheless, evidence to be considered in determining whether the seller is engaged in a business. Bush v. United States, 218 F.2d 223 (10th Cir. 1954); Supreme Malt Products Co. v. United States, 153 F.2d 5 (1st Cir. 1946). In the instant case, the shipment of guns to Tokyo, the activity of Ekita, Loo and Townsend in procuring, with Kaneshiro's knowledge and approval, possible buyers for the guns, and the fact that the guns were sold in two separate installments to two different people, is ample evidence to support a finding that appellants were "engaged in the business of selling firearms" and were to that extent dealers under § 901(5).

(3) Directly related to the foregoing is appellants' claim that the trial court erred in its instructions in failing to define the term "dealer" or to inform the jury that § 902(a) is applicable only to dealers or manufacturers of firearms. At the outset, we note that the trial judge prefaced his instruction by reading the entire section to the jury. More importantly, we emphasize that the attacked instruction not only was not objected to at the trial, but indeed was given as revised by the appellants themselves. On these facts, Rule 30, F.R.Crim.P., precludes appellants from attacking an instruction which they helped compose.² The giving of the instruction was not, as appellants urge, plain error under Herzog v. United States, 235 F.2d 664 (9th Cir. 1956), cert. denied 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956).

(4) At the trial, Tom testified that Kaneshiro had admitted to him that the suitcase contained pistols, and a customs agent, Piper, was permitted to relate a statement made to him by Ekita during interrogation in a customs search that he, Ekita, had been present at the airport meeting with Kaneshiro, Loo and Tom. Appellants argue that these "admissions" were not supported by substantial independent corroboration showing a corpus delicti, and thus it was reversible error to admit them into evidence.

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