U.S. v. Head

• Citation: 546 F.2d 6
• Decision Date: 29 November 1976
• Docket Number: Nos. 217,D,261,s. 217
• Parties: UNITED STATES of America, Appellee, v. Donald HEAD, a/k/a "Mr. Don", and Bruce Wheaton, Defendants-Appellants. ockets 76-1249, 76-1271.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 6

546 F.2d 6

UNITED STATES of America, Appellee, v. Donald HEAD, a/k/a "Mr. Don", and Bruce Wheaton,

Defendants-Appellants.

Nos. 217, 261, Dockets 76-1249, 76-1271.

United States Court of Appeals, Second Circuit.

Argued Oct. 1, 1976.

Decided Nov. 29, 1976.

Irving Perl, New York City, for defendant-appellant Head.

Arnold M. Cowan, Redondo Beach, Cal. (Abraham Solomon, New York City, of counsel), for defendant-appellant Wheaton.

Federico E. Virella, Jr., Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, Paul Vizcarrondo, Jr., Asst. U. S. Atty., New York City), for appellee.

Before FEINBERG, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

In January of 1976, Jack Taylor, an undercover agent with the Drug Enforcement Administration, had several telephone conversations with Boonsak Phuvasitkul, a resident of Thailand, concerning the proposed purchase of a unit of heroin which would be mailed from Thailand to the United States through the United States Air Force postal system. Events which followed rapidly thereafter led to the arrest and conviction of appellants on one conspiracy count of manufacturing, importing and distributing heroin, one substantive count of importing and one of distributing heroin. Although appellants were tried separately, their appeals were heard together. Phuvasitkul, who was also indicted, pleaded guilty to the second substantive count and another count on which appellants were not tried, and testified as a government witness.

The government's proof established that appellant, Head, a staff sergeant stationed at the air mail terminal at Don Muang Airport outside Bangkok, was the key man in the smuggling operation. As chief supervisor of a shift, Head was responsible for the receiving, dispatching and inspecting of all incoming and outgoing mail, and he had developed a method of packaging heroin for mailing so that it would escape detection by dogs or x-ray.

At a meeting with Phuvasitkul in Bangkok on February 4, 1976, Head agreed to mail a unit of heroin to New York. The package was mailed to a post office address in New York City where it was seized by a DEA agent. Analysis showed the contents to be 638 grams of heroin. While en route to the United States to pick up the money for the heroin which had been mailed, Phuvasitkul met Agent Taylor, acting in an undercover capacity, in Toronto, where arrangements for payment were discussed. Phuvasitkul told Taylor at that time that Head had also mailed two or three units to appellant Wheaton and that Phuvasitkul was to contact Wheaton with instructions for making payment. Upon his arrival in New York, Phuvasitkul was placed under arrest. Several weeks later, Wheaton was arrested in California.

In arguing for reversal of his conviction, Head makes the now routine claim of a single conspiracy charged and multiple conspiracies proven, and also contends that unfair comments were made by both judge and prosecutor. Neither contention merits extended discussion. Appellant did not request a charge on multiple conspiracies, took no exception to the charge as given, and comes ill-equipped to this Court asserting error. See United States v. Indiviglio 352 F.2d 276, 280 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). Moreover, because he makes no showing of prejudice resulting from the asserted multiplicity, his argument is unpersuasive. See United States v. Sir Kue Chin, 534 F.2d 1032, 1035 (2d Cir. 1976).

Some strong comments were made by the trial judge which would have been better left unsaid. However, in view of the overwhelming proof of Head's guilt, we do no more than express our disapproval of what was said. Appellant found no fault with the prosecutor's summation when it was given. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). We think his initial reaction was correct.

Head's only claim of any substance arises out of the seizure of a package containing $26,800 in currency at the time of his arrest in Bangkok. Pursuant to 39 U.S.C. § 406, the Don Muang airmail terminal was under the supervision and control of the air force, which had established written procedures for customs examination of official and personal mail. Among these was a provision that fluoroscopy would be used by military postal personnel as directed by the military department which operates the post office. As one of the persons responsible for making such inspections, appellant must have been aware that fluoroscoping was routinely being done.

On March 9, 1976, Head's commanding officer was informed by the air force Office of Special Investigations that a person fitting Head's description was believed to be involved in narcotics trafficking. A registered parcel addressed to Head was examined under a fluoroscope, and the parcel showed outlines of what appeared to be stacks of currency. After Head had picked up this package on the following day, he was placed under arrest with the package in his possession, pursuant to a complaint which had, in the meantime, been filed against him in New York. At the request of OSI, a search warrant was issued by the Commanding Officer for Air Force Personnel as authorized by chapter 152 of the Manual for Courts Martial, following which the package was opened and the currency found. Appellant asserts that his motion to suppress this evidence as the product of an illegal search was improperly denied.

In view of the strength of the government's case against Head, consisting among other things of extremely incriminating taped conversations, appellant is asserting what, at most, would be harmless error. United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 52 (2d Cir.), cert. denied,423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975); United States v. Anderson, 500 F.2d 1311, 1318-19 (5th Cir. 1974). In actuality, there was no error at all. Head's constitutional right of privacy must be measured by whether he had an expectation of privacy which society was prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Because "the military is, by necessity, a specialized society separate from civilian society", Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974), and there are serious drug problems in military installations, see Schlesinger v. Councilman, 420 U.S. 738, 760 n. 34, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), the limited invasion of privacy in the fluoroscoping, which must have been anticipated by appellant, was not constitutionally objectionable. See Committee for GI Rights v. Callaway, 171 U.S.App.D.C. 73, 518 F.2d 466, 474-77 (1975); cf. United States v. Edwards, 498 F.2d 496, 499-501 (2d Cir. 1974). Moreover, the opening and search of the offending package did not take place until after a valid search warrant had been issued by the commanding officer. Appellant's motion to suppress the money found in the search was properly denied.

Appellant Wheaton had also been a member of the United States Air Force and was stationed in Thailand from January 1972 until ...