Lee Kwong Nom v. United States

• Decision Date: 05 July 1927
• Docket Number: No. 377.,377.
• Parties: LEE KWONG NOM et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

20 F.2d 470 (1927)

LEE KWONG NOM et al. v. UNITED STATES.

No. 377.

Circuit Court of Appeals, Second Circuit.

July 5, 1927.

George K. Jack, of Brooklyn, N. Y., for plaintiffs in error.

William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

The plaintiffs in error were convicted on two counts of an indictment charging a violation of subdivision c, section 2, of the Act of Feb. 9, 1909, c. 100, as amended by Act Jan. 17, 1914, and by Act May 26, 1922, § 1 (Comp. St. § 8801). The first count charged unlawful, willful, and fraudulent importation of two cans of smoking opium, and the second count unlawfully and willfully facilitating the transportation and concealment of the two cans of smoking opium after having imported them into the United States. It was established at the trial that on December 18, 1922, government agents were in the neighborhood of a Chinese laundry at Roslyn, L. I., where the plaintiffs in error were found later with the cans of smoking opium in their possession, and they smelled the fumes of smoking opium coming from the laundry. A name on a sign outside read "Yee Lee." On an affidavit later made by one of the agents, a search warrant was issued by the United States commissioner, authorizing them to search the premises for smoking opium.

On December 20, 1922, the agents returned with the search warrant and proceeded to this Chinese laundry, and after entering it met the plaintiffs in error. The door was closed, but unlocked, and they walked in. There is testimony that one of the officers asked if they had opium on the premises, which the plaintiffs in error denied, and, after exhibiting the search warrant, one of the plaintiffs in error said, "Go and search," whereupon they searched the store, which was partitioned off from the rest of the building. Behind the partition there was a stove and a pile of coal, and in back of this a kitchen. The agents searched the kitchen, and found a box of empty "toys" and a scale. On further search, they found a pipe and a pipe bowl. These were in the kitchen. Thereupon they searched in the pile of coal, and found the two cans of smoking opium. One of the plaintiffs in error said that he had obtained four cans of this smoking opium and paid for it, and that it belonged to the two plaintiffs in error, each having a half interest. The plaintiffs in error worked in the laundry at these premises. It appears that up one flight there was a bed, which may have been used for sleeping quarters. At the trial, objection was made to the receipt of this property seized after such search, because it was contended that the evidence was insufficient of the issuance of and legal sufficiency of the search warrant, and that therefore the seizure was unlawful.

At the time of the issuance of the warrant, the commissioner (who has since died) made a certified copy, which he gave to the agent, and which was preserved and offered in evidence in lieu of the original, which had been lost. The government proved the death of the commissioner and the fact that both the affidavit and original warrant had been lost, and could not be found, although diligent search was made by the clerk of the District Court in the vault kept by the clerk, where such papers are ultimately placed after the death of a United States commissioner. As secondary evidence, the government offered the certified copy of the search warrant and the oral testimony of the government agent, who obtained a certified copy stating the contents of the affidavit upon which the warrant was issued. The agent did not receive a copy of the affidavit.

Section 2, subdivision c, of the act, makes it a crime to fraudulently import any narcotic drug into the United States, or to assist in so doing; also to receive, buy, or sell, or in any manner facilitate the transportation, concealment, or sale, of any such drug after being imported or brought in, knowing the same to have been imported contrary to the law, and section 2, subdivision f, provides that, where a defendant is shown to have had possession of the drug, such possession shall be deemed to be sufficient evidence to authorize conviction, unless the defendant explains the possession to the satisfaction of the jury. And section 3, Act Jan. 17, 1914 (Comp. St. § 8801a) provides that, after July 1, 1913, all smoking opium or opium prepared for smoking, found within the United States, shall be presumed to have been imported after the 1st day of April, 1909, and the burden of proof is on the accused to rebut such presumption. The evidence sufficiently established guilt on both counts.

We need not consider the argument presented by the plaintiffs in error that their constitutional rights were violated, because the search warrant was...