United States v. Ah Kee Eng, 34

Decision Date20 February 1957
Docket NumberNo. 34,Docket 23728.,34
PartiesUNITED STATES of America, Appellee, v. AH KEE ENG, Defendant-Appellant, and Noh Kan Lee and Sing Fu Chen, Defendants.
CourtU.S. Court of Appeals — Second Circuit

Jac M. Wolff, New York City, for defendant-appellant.

Leonard P. Moore, U. S. Atty., E. D New York, Brooklyn, N. Y. (William H. Sperling and Marie L. McCann, Asst. U. S. Attys., Brooklyn, N. Y., of counsel on the brief), for appellee.

Before CLARK, Chief Judge, and FRANK* and LUMBARD, Circuit Judges.

LUMBARD, Circuit Judge.

As the proof at the trial was insufficient to support Ah Kee Eng's conviction for conspiring with Noh Kan Lee and Sing Fu Chen to import and sell heroin in violation of 21 U.S.C.A. § 174, and because of the improper admission of evidence, and prejudicial error in the conduct of the trial judge, we must reverse the conviction.

Section 174 of Title 21 U.S.C.A. makes it unlawful to conspire to commit any of the acts set forth in the first part of the section which punishes anyone who "fraudulently or knowingly imports or brings any narcotic drug into the United States * * *, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law * * *."

Here Eng was on trial for conspiracy with Chen and Lee to import and sell heroin "knowing the same to have been imported contrary to law." Chen and Lee had both pleaded guilty prior to trial and the government called them as the principal witnesses against Eng.

The only admissible evidence introduced by the government to show that Eng knew of the Chen and Lee conspiracy to import and sell heroin was this: On November 17, 1954 Chen and Lee, who served as officers' mess boy and cabin boy respectively on the Norwegian steamer Bronxville, left the vessel which had docked at Pier 19 Staten Island and went to find Eng at 108 Eldredge Street in Manhattan. They left behind on the Bronxville five packages of heroin (also referred to as opium powder) which they had purchased for $350 in Bangkok in September and which they hid on the ship.

Failing to find Eng on their first attempt, Chen and Lee finally met him in his apartment at the Eldredge Street address at 8:30 P.M. This was the first time Chen and Lee had ever met Eng. As Chen did not understand the Cantonese dialect and Lee did, it was Lee who spoke to Eng. Lee and Eng retired to a bedroom where they talked privately. Lee asked Eng whether he wanted "opium powder." Eng said yes, he was going to buy and he asked Lee how many packages he had. Lee said five. Whereupon Eng said he was going to give them a thousand dollars. Nothing else happened according to Lee. They were in the apartment about fifteen minutes and Lee's talk with Eng took five minutes. Chen and Lee then left.

Chen and Lee were arrested the next day after leaving the Bronxville and five packages of heroin were found on them. Later that day customs agent Wong talked to Eng on the telephone at about midnight. Speaking to Eng in Cantonese, Wong said he was Lee, that he had the goods and asked Eng if he had the money. To this Eng made no reply. Wong then asked where he could see Eng and Eng suggested that Wong (whom he supposed to be Lee) get a cab and come to his home. Wong said he had to get back to the ship that was sailing in the morning, whereupon Eng said to meet him in front of the Silver Star Theatre in Chatham Square in ten or fifteen minutes. After Chen and Lee had waited in a taxi in front of the theatre, Wong called again. Eng said that Chen and Lee should leave the taxi and meet him on the opposite side of the theatre. Eng finally appeared at 1:15 A.M. and crossed the street toward Lee and asked him why he should stand on the street. Before Eng reached Lee customs agent Cozzi came from behind and seized Eng. It is from this proof that we must find enough evidence of Eng's involvement in a conspiracy to import and sell heroin to justify submitting the case to the jury.

There was no evidence from which the jury could find that Eng conspired with Chen and Lee to import and sell narcotics. There was no evidence from which it could be inferred that Eng knew the heroin had been imported, or that Lee and Chen were to bring heroin into the country. The proof shows at most a talk between Lee and Eng about Eng's willingness to purchase five packages of heroin for a thousand dollars. Neither Lee nor Chen ever told Eng where and how they had received the heroin or even who suggested that they should seek out Eng. Wong's remarks, whilst pretending to be Lee, that he had to get back to the ship which was sailing in the morning, to which remarks Eng made no response, certainly do not supply the necessary evidence from which it may be inferred that Eng knew of a conspiracy to import narcotics as it does not appear from the testimony of Lee that there had been any mention of a ship during his talk with Eng on November 17.

There was no agreement to advance any joint interest or for Eng to do anything more than pay money upon receipt of the heroin. The evidence had to do with an isolated transaction, a purchase of five packages for a thousand dollars. The facts are somewhat similar to those disclosed in United States v. Koch, 2 Cir., 1940, 113 F.2d 982. There we held that even where a single purchase had actually been made that, without more, was insufficient evidence to connect the purchaser with the conspiracy to import and sell drugs in violation of law. See cases cited in United States v. Koch, and also United States v. Di Re, 159 F.2d 818, 2 Cir., 1947, affirmed, 1948, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. Had Eng received the heroin and paid the money he would have been guilty of illegal possession and illegal purchase of heroin. The premature action of the customs agents apparently prevented Eng from going through with the transaction which he had discussed with Lee. In any event, what might have resulted in a simple case of purchase and possession, had the purchase been consummated, cannot be tortured into a conspiracy to import and sell because evidence of a substantive crime is lacking.

In view of the failure of proof, the motion for a directed verdict of acquittal made at the end of the government's case and again at the conclusion of all the testimony should have been granted.

Having failed to adduce any evidence of Eng's knowledge of the conspiracy and willingness to join such a conspiracy, all the other evidence was improperly admitted. Over objection of defense counsel the court should not have admitted the evidence regarding talks with one Wong Ah Que in Bangkok or Honk Kong about Eng, and talks between Chen and Lee about delivery of the heroin the next day and Chen's testimony of what Lee had told him of Lee's talk with Eng. Thus Chen testified that when he told his friend Wong Ah Que in Bangkok that he was going to America to do some business, not mentioning what the business was, Wong Ah Que told him he had a friend in America and gave him Eng's name and address. The error in admitting this evidence, over objection, was further aggravated, in our opinion, to the...

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    ...177 F.2d 833, 835-836 (7th Cir. 1944); United States v. Carmel, 267 F.2d 345, 349-350 (7th Cir. 1959); accord, United States v. Ah Kee Eng, 241 F.2d 157, 161 (2d Cir. 1957); United States v. Cassiagnol, 420 F.2d 868, 878-879 (4th Cir. 1970), certiorari denied, 397 U.S. 1044, 90 S.Ct. 1364, ......
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    ...black and white of a printed record.'" United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir.1970) (quoting United States v. Ah Kee Eng, 241 F.2d 157, 161 (2d Cir.1957)). For this reason, we have no handy tool with which to gauge automatically whether the trial judge's conduct has improp......
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