U.S. v. Molt

• Decision Date: 20 March 1980
• Docket Number: No. 79-1774,No. 79-00044-01,79-00044-01,79-1774
• Citation: 615 F.2d 141
• Parties: UNITED STATES of America v. Henry A. MOLT, Jr., Appellant. (D.C. Crim.)
• Court: U.S. Court of Appeals — Third Circuit

Page 141

615 F.2d 141

UNITED STATES of America v. Henry A. MOLT, Jr., Appellant. (D.C. Crim. No. 79-00044-01)

No. 79-1774.

United States Court of Appeals Third Circuit.

Argued Jan. 9, 1980.

Decided Feb. 12, 1980.

As Amended March 20, 1980.

Gilbert B. Abramson (argued), Abramson & Freedman, Philadelphia, Pa., for appellant.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Section, Thomas E. Mellon, Jr., Asst. U. S. Atty., Chief, Crim. Div., Philadelphia, Pa., Kathryn S. Fuller (argued), Atty., Wildlife Section, Land & Natural Resources Div., Washington, D. C., for appellee.

Before GIBBONS, ROSENN, and GARTH, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Defendant Henry A. Molt appeals from sentences imposed following his conviction under 18 U.S.C. § 371 (1976) of conspiring to violate 18 U.S.C. § 545 (1976), and under 18 U.S.C. § 545 of knowingly importing merchandise, i. e. reptiles indigenous to Fiji, contrary to the Tariff Act of 1930, 19 U.S.C. § 1481 et seq. (1976). We affirm the section 545 conviction, but reverse the section 371 conviction.

FACTS

In 1974 Molt, accompanied by Steven N. Levy and Edward B. Allen, participated in a world-wide reptile collection expedition. During the course of this expedition over 600 reptiles of varying species were collected. Molt, Allen, and Levy intended to sell the reptiles to zoos and private collections for profit.

The reptiles were first sent to a zoological park in Switzerland for safekeeping before their shipment to the United States. Of the three reptile collectors, Molt returned to the United States first. Thereafter, he instructed Levy and Allen on the mechanics of transporting the reptiles from Switzerland to the United States. Levy and Allen shipped the reptiles, arriving themselves one day before the reptile shipment. As instructed by Molt, they brought the reptiles through Customs after 5:00 p. m. to avoid Fish and Wildlife inspection. On their Customs Informal Entry Form they declared a value of $1,000 for the reptiles, although the Australian reptiles alone were worth approximately $5,500, and stated that the importation was for personal, rather than commercial, use. In addition, on their accompanying Fish and Wildlife Forms, Levy and Allen misrepresented the number and origin of the reptiles.

Levy and Allen, however, did not follow Molt's instructions in every respect. Suspicious and resentful of his past unilateral departures from group plans, they decided to proceed alone and imported the reptiles one day ahead of schedule to avoid Rudolph Komarek, a confederate of Molt experienced in the illegal importation of wildlife. Instead of taking the reptiles where originally planned, Levy and Allen transported them to Levy's home in Pittsburgh, Pennsylvania.

Subsequently, however, Levy and Allen concluded that they could not sell the reptiles without Molt's help. Accordingly, Molt, Levy, and Allen entered into a formal, written agreement providing for sale of the reptiles and division of the profits. The reptiles were removed from Levy's house, taken to Molt's place of business, the Philadelphia Reptile Exchange, and put on display. Certain reptiles, whose detection was feared, were secreted in an apartment rented by Molt. These reptiles were later transported to Allen's apartment.

In March 1975, Molt began negotiating a sale of six Fiji Island iguanas to Barney Tomberlin and James Brockett, co-owners of the Western Zoological Supply Company (Western Zoological) in Monrovia, California. The sale was subsequently finalized and the iguanas shipped by Molt to Western Zoological on April 10, 1975.

On February 14, 1979, Molt, Tomberlin, and Brockett were indicted by a federal grand jury. They were charged with conspiring, under 18 U.S.C. § 371, to violate 18 U.S.C. § 545 by dealing with Fijian wildlife knowingly imported contrary to the Tariff Act of 1930, and the Lacey Act, 18 U.S.C. § 42 et seq. (1976), and with committing substantive section 545 and Lacey Act violations. Before trial the government dismissed the Lacey Act charges against Molt and tried the case on its Tariff Act theory. Since Molt waived his right to a jury trial the case was tried to a judge. Tomberlin and Brockett negotiated guilty pleas, and their cases were transferred to the District Court for the Central District of California for sentencing. After a two day trial Molt was found guilty on both the conspiracy and substantive counts. On the conspiracy charge he was sentenced to one year and one day in prison. On the substantive section 545 charge he was fined $10,000, and sentenced to three years probation consecutive to his one year, one day imprisonment. This appeal followed.

SECTION 545 CHARGE

Molt advances three contentions for reversal of his section 545 conviction. First, he contends that the evidence used to convict him was obtained in violation of the Fourth Amendment. Second, he argues that, even if there were no Fourth Amendment violation, the evidence, nonetheless, was insufficient to sustain his section 545 conviction because: 1) the government failed to prove that he dealt with the Fiji Island reptiles knowing that they had been imported contrary to the Tariff Act; and 2) the government failed to prove that the illegally imported Fiji Island reptiles were the same reptiles handled in violation of section 545.

To prove a section 545 offense the government must prove beyond a reasonable doubt that the defendant: 1) received, concealed, bought, sold, or facilitated the transportation, concealment, or sale; 2) of merchandise after importation; 3) knowing the same to have been imported contrary to law. See 18 U.S.C. § 545 (1976). At trial the government relied upon the Tariff Act of 1930 as the law contrary to which the Fijian reptiles were knowingly imported. In particular, the government contended that the reptiles were imported contrary to section 485 of the Tariff Act which requires accurate representations on the value or price of imported goods as well as on all documents filed with Customs Entry Forms. See 19 U.S.C. § 1485(a)(2), (3) (1976). Molt argues that the government failed to establish that he knew of any misrepresentations, and that, in any case, it was not established that the iguanas sold to Brockett and Tomberlin were among those Fijian reptiles illegally imported.

There is abundant evidence that Molt was aware of Levy and Allen's misrepresentations on their Customs and Wildlife Forms. At trial, the government demonstrated, through the testimony of Allen, Levy, and Komarek: that Molt was the smuggling operation's organizer and leader; that he had instructed Allen, while Allen was in Switzerland, to mislabel the reptile crates and import them after 5:00 p. m. when detection was less likely; that Molt informed Komarek, in advance of importation, that the reptiles would be illegally imported and that his aid would be needed in accomplishing the illegal importation; that Allen and Levy related the details of their successful importation to Molt and that Molt congratulated them on their good fortune; that Molt, Allen, and Levy executed a formal, written sale and profit-sharing agreement; and that Molt, fearing detection, rented an apartment to conceal certain reptiles from federal agents. This evidence, probative of Molt's deep involvement in the smuggling operation, is sufficient, under Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), to sustain the district court's finding of a knowing importation contrary to section 485 of the Tariff Act. ¹ We, therefore, reject defendant's first sufficiency of the evidence contention.

We reject his second as well. Section 545, as indicated above, prohibits the reception, concealment, purchase, sale, and facilitation of concealment, transportation, or sale of illegally imported merchandise. The indictment repeated the statutory language. In asserting that the government failed to establish the necessary relationship between the iguanas sold and the iguanas illegally imported, Molt focuses on section 545's purchase and sale language to the exclusion of its reception, concealment, and facilitation language. However, he was indicted for receiving and concealing illegally imported Fiji Island reptiles as well as for buying and selling them. Regardless of the sufficiency of the evidence to establish the latter, there was sufficient evidence to establish the former. See supra at 144. Therefore, Molt's second sufficiency of the evidence contention must fail.

However, a determination that the evidence is sufficient to sustain a defendant's conviction does not necessitate a determination that the admission of evidence obtained in violation of an individual's constitutional rights comprises harmless error. Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). It is to that determination that we now turn.

In mid-January 1975, U. S. Customs Agents searched the Philadelphia Reptile Exchange. In that search all of Molt's business records, his cancelled checks, certain reptiles, and ten hours of taped telephone conversations were seized. Included among the items seized were three files containing correspondence with Western Zoological, and one telephone conversation in which Molt discussed with Western Zoological a possible sale of Fiji Island iguanas. When the government tried to use this evidence in a subsequent customs and wildlife prosecution the search and seizures were declared violative of the Fourth Amendment and the evidence obtained suppressed. United States v. Molt, 444 F.Supp. 491 (E.D.Pa.), aff'd, 589 F.2d 1247 (3d Cir. 1978).

In August, 1977, more than two years after the illegal January, 1975, search and seizures, Customs Special Agent Joseph O'Kane, the customs officer in charge of the Molt investigations, interviewed ...