United States v. Averell
| Decision Date | 11 February 1969 |
| Docket Number | No. 66 CR 197.,66 CR 197. |
| Citation | 296 F. Supp. 1004 |
| Parties | UNITED STATES of America v. Alfred Borton AVERELL, Jr., and Bernard Aguinaldo, also known as Bernardino Cariago Aguinaldo, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Joseph P. Hoey, U. S. Atty., Eastern Dist. of N. Y., by Vincent T. McCarthy, Chief Asst. U. S. Atty., Brooklyn, N. Y., of counsel, for United States.
Jacob W. Heller, New York City, for defendant Averell.
Leo Gitlin, New York City, for defendant Aguinaldo.
Lengthy hearings have been held on motions by both defendants to suppress certain evidence and for other relief in advance of trial. Alfred Averell and Bernard Aguinaldo were indicted for interstate transportation of stolen wigs (18 U.S.C. §§ 2314 and 2) and for conspiring to commit the substantive offense (18 U.S.C. § 371).
The indictment charges that the wigs in question were part of a shipment from New Century, Ltd., Hong Kong, to Sylvester & Sons, Inc. in Cherry Hill, New Jersey, which was hijacked in Weehawken, New Jersey, while in transit from Kennedy Airport in New York to the Cherry Hill address; and that, after being returned from New Jersey to New York, the wigs were shipped by the defendants via Trans Caribbean Airlines to San Juan, Puerto Rico, with knowledge that they were stolen.
The issues originally raised by the motions to suppress may be grouped under four main headings:
In addition, motions to dismiss the indictment were made orally, on the basis of facts disclosed during the hearings concerning the government's release of most of the allegedly stolen wigs to Sylvester & Sons without notice to the defendants. The facts relating to this oral motion were not developed as fully as the facts concerning the motions to suppress. For the reasons set forth later in this opinion, the court does not deem it necessary to receive any further evidence concerning the release of the wigs.
Part of the attack on the two search warrants is that they are the fruit of an allegedly illegal inspection of wigs at the Kennedy Airport. The facts will be stated as found by this court, with discussion of the supporting evidence only when there is substantial conflict, and with a reference to the applicable law where appropriate.
The scenario begins in November, 1965, when New Century, Ltd. of Hong Kong was making large shipments of wigs to its American sales representative, Sylvester & Sons, Inc., in anticipation of an embargo on the shipment of Oriental wigs. Philip Chen, a graduate student at Polytechnic Institute in Brooklyn, was an officer and stockholder of Sylvester & Sons, Inc., a family corporation. His father, who controlled the Hong Kong firm and was also a stockholder in the New Jersey corporation, had sent notice that four shipments of wigs and wiglets had been forwarded from Hong Kong by air freight on about November 4, 1965.
The shipments, totaling 38 cartons, had been cleared through United States Customs by Penson & Co., customs brokers. On the basis of information from Penson & Co., Philip Chen obtained a certified check from his sister for $10,468 to pay the customs charges and brokerage commissions. Chen asked Averell, who was a principal of one of his New York City customers, Hollywood Secret Wigs, to rent a truck and meet him on November 18, 1965. They went together to Penson & Co., where they obtained delivery orders for the wigs in exchange for the check. (The check apparently covered another shipment beside those here in question, but that fact is not material.) The shipments covered by the delivery orders included 3,000 wigs and 1,800 wiglets, with a wholesale value of about $67,000, and a retail value in excess of $100,000.
After picking up 36 cartons (two had been lost in the airport) at several airlines, Chen and Averell set off for Cherry Hill, New Jersey. At Averell's suggestion, Chen stopped at a bar in Weehawken, where Averell made several 'phone calls. When they came out of the bar, after dark, and got into the truck, they were ordered out by two armed men, who blindfolded Chen and forced him into the back of an accompanying automobile, which they compelled Averell to drive. Averell and Chen were released, shoeless, later in the evening near Teterboro Airport, from where they reported the theft to the Weehawken police.
Later in 1965, Averell arranged a meeting in San Juan, Puerto Rico, with Lorenzo Cruz Rodriguez, a sewing supply salesman who represented American manufacturers in Puerto Rico. They discussed the possibilities of establishing a wig business in Puerto Rico, which Cruz investigated and reported could be lucrative. Cruz rented an apartment for Averell at 363 Calle San Jorge, Santurce, P. R., during January, 1966, and thereafter accompanied Averell to the San Juan Airport to pick up shipments of wigs. Averell, Cruz, and Averell's father-in-law, R. L. Lewis, set up a partnership called Don Rod Wigs, which operated out of the San Jorge apartment.
(1) The Kennedy Airport Inspections
On the evening of Wednesday, February 16, 1966, Francis Romero, the night supervisor at the Trans Caribbean Airlines cargo agency (hereinafter referred to as T.C.A.) at John F. Kennedy Airport, reported to the cargo manager, Ernest Urrutia, by telephone to his home, that he had just received a shipment of four trunks under circumstances that seemed strange. The circumstances which were reported to Urrutia were that the persons who brought the shipment had sat in the parking lot until after Urrutia and the director of cargo sales and service, James McQuade, had left for the day; and that they had refused to give a New York address for the shipment, whereas cargo handlers had been instructed to obtain a local address from all shippers. Urrutia asked that the shipment be set aside until the morning.
On the morning of Thursday, February 17, Urrutia and McQuade looked at the four trunks, which were consigned from "Rodriguez Sewing Supply, J. F. K. Airport, Jamaica, N. Y." to "Rodriguez Sewing Supply, P. O. Box 10353, Caparra Heights, San Juan." The airway bill described the contents as sewing machine parts. Reddish hair was visible below the cover at the side of one trunk;* McQuade observed also that the heft did not seem to be that of sewing machine parts, and thought that it was uncommon to ship machine parts in new steamer trunks.
The Port of New York Authority Police and the Federal Bureau of Investigation (which maintains an office at Kennedy Airport) were then summoned by 'phone. T.C.A. maintained close relations with both agencies, because of the security requirements of the Airport, where pilferage and smuggling of contraband were extensive. High value air shipments, including wigs, were a major subject of theft. T.C.A.'s own losses by pilferage approximated $100,000 a year.
Both the F.B.I. and the P. N. Y. A. Police disclaimed authority to open the trunks, although one of the law enforcement officers mentioned that they might contain "a stiff." Urrutia called the T.C.A. attorney, and obtained his assurance that the T.C.A. tariffs gave the airline the right to open the trunks.
The tariff provision reads in full:
"Shipments shall be subject to inspection by the carrier."
A T.C.A. employee thereupon broke open the padlock on one trunk with a hammer blow, and pried open the center lock. When the trunk was opened, it was seen to be full of wigs, crammed in so tightly that they overflowed the trunk when the pressure of the lid was released. On seeing the wigs pour out, McQuade exclaimed that they must be stolen.
While the physical opening of the trunk was done by a T.C.A. employee, it is clear that law enforcement officers were present. McQuade stated that, for the airline's protection, he wanted to have a law enforcement officer present at the opening. He stated that the freight rate for wigs was higher than for sewing machine parts, but that the rate difference, two cents a pound, or about $6.00 for the entire shipment, was not the determining factor, and that the suspicious circumstances might have led him to open the trunk even if the rates for both commodities were the same.
McQuade asked his staff to check prior shipments, and found manifests for three other shipments of "sewing machine parts" from Rodriguez Sewing Supply Co., with no New York City address, to Rodriguez Sewing Supply Co. at the same San Juan post office box.
McQuade let F.B.I. Agent Datz take five wigs for more detailed inspection. Datz reported that customs officials recognized them as wigs of Oriental origin, and that there had been a major theft of wigs a few months before. It was observed at the time that many of the wigs were without linings, labels, or tags.
McQuade gave orders to have the trunks set aside in safekeeping overnight, and asked the F.B.I. to bring a locksmith the next day, who could open the other trunks without damage to the locks.
On Friday morning, February 18, F.B.I. agents returned to the T.C.A. cargo office at Kennedy, with a detective from the New York City police. In the presence of the T.C.A. supervisors, one of the F.B.I. agents opened the locks on the three trunks that had not been opened the day before. All the trunks were packed full of wigs. The New York City detective quickly determined that these were not the wigs he was seeking, and departed.
T.C.A. and the F.B.I. counted the wigs and wiglets in the four trunks, and reached a total of 452. Chen testified that the wigs were worth from $10.00 for wiglets to $300 for handmade wigs. Even at the customs estimate of from $9.00 to $36.00 apiece, the F.B.I. and...
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