U.S. v. Suttiswad

• Decision Date: 21 January 1983
• Docket Number: No. 81-1645,81-1645
• Citation: 696 F.2d 645
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thanarat SUTTISWAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 645

696 F.2d 645

UNITED STATES of America, Plaintiff-Appellee, v. Thanarat SUTTISWAD, Defendant-Appellant.

No. 81-1645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 1982.

Decided Nov. 1, 1982.

Rehearing and Rehearing In Banc Denied Jan. 21, 1983.

Barry Portman, Asst. Federal Public Defender, San Francisco, Cal., argued, for defendant-appellant; James F. Hewitt, Federal Public Defender, San Francisco, Cal., on brief.

Sandra L. Teters, San Francisco, Cal., argued, for plaintiff-appellee; William Farmer, Asst.U.S.Atty., San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before KILKENNY and HUG, Circuit Judges, and BROWN ^*, Senior District Judge.

WESLEY E. BROWN, Senior District Judge:

Defendant Suttiswad appeals from his conviction upon a two count indictment charging him with importation of heroin from Bangkok, Thailand, and possession of heroin, with intent to distribute, in violation of 21 U.S.C. Sec. 952(a), and Sec. 841(a)(1). Following guilty verdicts returned by a jury defendant was sentenced to two concurrent terms of five years, with a three year special parole term.

Defendant is a native of Thailand. Customs officers found 3.98 pounds of heroin concealed behind linings in his luggage during a search at San Francisco International Airport on July 11, 1981.

In this appeal, three issues are presented for review. Appellant contends that the District Court erred in failing to authorize expenditure of Criminal Justice Act funds for the services of a statistical expert for the purpose of showing that grand juries in the Northern District of California failed to include sufficient minority jurors. It is also urged that the criminal intent instructions, as given, were erroneous, and that the prosecutor committed plain error in referring to "highly incriminating evidence outside the record," during his closing argument.

The government's evidence may be summarized as follows: Special Agent Fiorentino of the Drug Enforcement Administration was on duty at the San Francisco International Airport on July 11, 1981, observing passengers arriving on the 8:30 a.m. flight from Tokyo. He noticed defendant was one of the last passengers to pick up his luggage from the conveyor belt. After looking at the agent several times, defendant claimed a large red suitcase and carried it to Customs, where it was briefly inspected and returned. At this time, in response to a question, defendant stated that he was in the hotel business--"most like a clerk." (III T. p. 85A) ¹ His passport, which was introduced in evidence, listed his profession as "Merchant." (III T. 90).

Defendant then left the customs area and approached the TWA ticket counter, where he asked another Customs Agent, Connie J. Fenchel, about a plane to "L.A." Agent Fenchel asked Suttiswad to return to the Customs area. He was taken to a small search room, where $1,500.00 in traveler's checks, a passport, an airline ticket, and some cash were found on his person. The red suitcase was then thoroughly searched, after one of the customs agents noticed that its lid "seemed rather heavy for an empty suitcase." After the linings of the suitcase were ripped out, eight packages containing heroin were discovered, and defendant was arrested. After advice of rights, and questioning by agents, ^1a defendant denied all knowledge of the heroin, and gave the following story, as related by Agent Fiorentino: (III T. pp. 20-21).

I asked Mr. Suttiswad where his trip began, what he was doing in the United States. I asked him what he was doing for a living. He began to tell me a story that he was a tour driver. He drove a taxi in Bangkok, Thailand, where he lived, and about one month prior to the situation that he was in, sometime in the beginning of June, 1981, he had been hired by an American male who he knew by the name of Tom to be driven around Bangkok and showed the sights and the clubs and so forth for about one week.

He said he became friends with Tom. And Tom asked him if he would like to go to the United States.

Mr. Suttiswad said he was poor. He had no money and would not be able to go to the United States.

Tom told Mr. Suttiswad that would be no problem. He would give him the money to go. He would buy him a ticket. He would give him new clothing. He would give him spending cash. And he would give him a suitcase.

Mr. Suttiswad said that he agreed to this. And some time later--I don't remember whether it was a few weeks or a few days--he said Mr. Tom, as he called him, gave him about ten thousand baht, which is Thai currency, to go purchase and make arrangements to get a Thai passport to travel.

He said he got the passport. He then contacted Mr. Tom again, and Mr. Tom gave him enough money to buy an airline ticket to the United States and back, and also gave him $1,500 in spending cash and told him that he would be seeing him in Los Angeles in a few days.

* * *

* * *

I asked him if he had the last name or telephone number or address (of Mr. Tom). And he said he had none of these. All he knew him by was Mr. Tom, a forty-year-old white male with blondish hair, rather skinny. That was about it.

Suttiswad advised the agent that "Mr. Tom" would meet him at the Los Angeles Airport on July 11th, and although defendant had missed a plane connection in Tokyo and had had to stay there overnight, "Tom" was going to know he would be late--that "Tom would just know." At a later point in questioning, defendant indicated that he was supposed to contact "Mr. Tom" at the Cloud Motel in Los Angeles. A number for the Cloud Motel was listed in an address book carried by Suttiswad.

At the time of his arrest, defendant was carrying a letter from a tour company in Bangkok addressed to a California tour operator, advising that on July 11th Suttiswad would be joining a 15-day tour which was then in progress. Suttiswad did not tell the agents that he planned to join any American tour, and the California tour operator had received no information from Bangkok that he would be joining the tour group mentioned.

A government witness testified that although attempts were made to lift latent fingerprints from the surface of the plastic bags, no identifiable prints were found. No attempt was made to lift prints from the areas between the walls of the suitcase and the concealed heroin. The government presented evidence to the effect that the value of the heroin seized, after it had been cut down to saleable units of one gram each, was $5,000,000.

Suttiswad presented no evidence at trial.

Authorization of Funds

Under the Jury Selection and Service Act, as amended, 28 U.S.C. Sec. 1861 et seq., a defendant may move to dismiss an indictment and stay proceedings upon the ground that there has been a substantial failure to comply with the Act in the selection of grand or petit jurors, and he is entitled to present records and any relevant evidence to support his claim. 28 U.S.C. Sec. 1867(a), 1867(d). Suttiswad filed a motion to stay proceedings, grant discovery, and to dismiss the indictment upon the ground that the grand jury selection procedures in the district failed to comply with the Act and the 5th and 6th Amendments, in that grand jurors were not selected at random from a fair cross section of the community because the selection procedures unlawfully excluded racial and ethnic minorities.

Preliminary studies were made of grand jury records in the district by staff members of the Public Defender's Office, and this information was reviewed by a statistician, who concluded that racial disparities existed in the composition of past grand juries to a degree which indicated that some non-random selection process existed in the district. This data had been collected by the Public Defender at the request of The Honorable Marilyn H. Patel in the case of United States v. Maria Valiao, CR 81-0141 MHP, Northern District of California. (Ex. R. 131; R. 15) ²

Suttiswad then sought funds ($16,000, "or any lesser amount") under the Criminal Justice Act, 18 U.S.C. Sec. 3006A, to pay for expert assistance in compiling and analyzing statistical data. In support of this motion, two attorneys, experienced in criminal law, filed affidavits, stating that in their professional opinions, expert services would be obtained, "if the attorney had a client who had the independent means to pay for them ..." (R. 15). The government opposed the motion to dismiss upon the basis of Judge Patel's ruling in United States v. Valiao, supra, and on August 26, 1981, the motion was denied. (R. 18). In a further hearing before the Court on September 4th, and in open court, the Motion for Funds for expert assistance was denied upon the basis of Judge Patel's ruling: (II T. p. 4)

The Court: I intend to deny that. My ruling would be based on the same grounds and considerations set forth in Judge Patel's ruling. I don't think we need to clutter up the record. I'll make cross-reference to that.

It is apparent that the Suttiswad motions were based upon identical data and virtually identical arguments as those presented to Judge Patel in Valiao. In overruling motions to dismiss and stay proceedings and motions for funds for expert assistance, Judge Patel found that any disparities which might exist in the District are approximately the same or smaller than those approved by this Circuit in United States v. Kleifgen, 557 F.2d 1293 (9 Cir. 1977), and substantially smaller than disparities considered insubstantial by other circuits.

The preliminary statistics presented by the Public Defender's Office, following review of 610 questionnaires returned by persons who served on grand juries in the Northern District between 1979 and August 1980, are summarized as follows: ³

Assuming that such figures are correct, it does not appear that any discrepancy exceeds allowable limits under standards set out by this Circuit in United States v....