United States v. Curwood

Decision Date25 February 1972
Docket NumberCrim. A. No. 70-205.
PartiesUNITED STATES of America, Plaintiff, v. Stephen T. CURWOOD et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Joseph L. Tauro, U. S. Atty., Paul F. Ware, Jr., Asst. U. S. Atty., for plaintiff.

Manuel Katz, Boston, Mass., for Stephen T. Curwood.

Donald L. Conn, Malden, Mass., for Norman B. Casas.

William P. Homans, Jr., Boston, Mass., for Anthony W. King.


JULIAN, Chief Judge.

This case is before the Court on the motions of the defendants Curwood, Casas and King to dismiss the indictment and to suppress as evidence property seized by agents of the Bureau of Customs of the United States Department of the Treasury. Defendants stand indicted in two counts: the first charges conspiracy to receive, conceal, and facilitate the transportation of approximately 600 pounds of hashish (marihuana) which defendants knew to have been illegally imported into the United States; the second charges commission of the substantive offense. The pertinent facts are as follows.

On February 4, 1970, thirty wooden crates containing musical instruments arrived at Logan International Airport in Boston, Massachusetts, from India. Agents of the Bureau of Customs subsequently discovered that the crates also contained varying quantities of hashish secreted beneath false bottoms. A fluorescent chemical substance was applied to the hashish by agents of the Bureau of Customs and the crates were repacked for delivery. Late in the night of February 13, the thirty crates were loaded by Customs agents onto a truck owned by Frank J. Cole, Inc., a motor freight service, and were transported to Andover, Massachusetts, on February 14, 1970, by an employee of that company and Special Agent Richard G. Christopher.

Between 10:30 and 11:00 a. m. on February 14, delivery of the crates was made at 63 Park Street, Andover, Massachusetts, the designated destination of the shipment.1 The premises at 63 Park Street consisted of a sprawling commercial structure, two sections of which were connected by a roofed breezeway. The entire structure, apparently finished in the same building material throughout and painted barn red, housed several business concerns: a beauty parlor, a locksmith shop, and a building construction company (hereinafter Channel Building Company). The cargo was unloaded at the warehouse or storage area of Channel Building Company by the Frank J. Cole, Inc., truck driver and Agent Christopher at the direction of one of the defendants, Norman B. Casas, who signed a receipt for delivery of the 30-crate shipment. The truck then proceeded to a predetermined location where Agent Christopher entered a cruiser of the Massachusetts State Police and was driven to the home of a judge of this court in Cambridge, Massachusetts, for the purpose of securing a search warrant. During the trip from Andover to Cambridge, Agent Christopher listened via a portable radio to the transmitted observations of other agents surveilling the premises at 63 Park Street in his absence.

At approximately 12:15 p. m. the requested search warrant was issued upon the sworn affidavit of Agent Christopher. The warrant described the premises to be searched as "A Barn Red Wood Frame, 2 story Commercial Structure, 208' long and 85' wide situated and numbered 63 Park Street, Andover, Mass." The concealed property for which the warrant issued was described as "Hashish (marihuana)." Upon securing the search warrant, Agent Christopher immediately returned to Andover, arriving at a location near 63 Park Street at approximately 1 p. m. Surveillance of the premises by Customs agents, joined by members of the state and local police, continued for about one hour. At 2 p. m. all three defendants were arrested, without warrants, as they stood outside the storage area of the building and near an automobile which had been backed up to the building's loading platform. Execution of the search warrant produced approximately 400 pounds of hashish. The remaining quantity — approximately 200 pounds — was seized from the trunk of the automobile, a yellow 1970 Plymouth four-door sedan, but not under the authority of the search warrant.

On February 18, 1970, Agent Desmond of the Customs Bureau, who had participated in the raid of February 14, applied for and obtained a search warrant for "one, yellow-manilla envelope" which had been sent from Afro Imports, P.O. Box 441, Lawrence, Massachusetts, to one Ravi Rikye, in care of American Express, Vienna, Austria. The asserted ground of the resultant seizure was Agent Desmond's belief that the envelope contained information related to a conspiracy to smuggle hashish into the country.

Two basic issues are raised by defendants' respective motions to dismiss the indictment and motions to suppress as evidence property seized by agents of the Bureau of Customs: 1) whether prosecution under the Narcotic Drugs Import and Export Act, 21 U.S.C. § 176a,2 must be quashed because that statute violates defendants' privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States, and 2) whether the property seized as evidence — the hashish, or any portion thereof, and/or the yellow manilla envelope — must be suppressed because the methods employed to effect its seizure violate the Fourth Amendment to the Constitution of the United States. The motions, and thus the issues, will be considered seriatim.

Motions to Dismiss Indictment

Defendants contend in their motions to dismiss the indictment that the statute under which they are charged, while it may be valid on its face, is constitutionally infirm in that it incorporates other federal statutes which force a compliant individual to admit to commission of crimes, both state and federal. Primary reliance is placed upon what defendants suggest are the necessary implications of four decisions of the United States Supreme Court, viz., Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).3 In each case, federal statutes were held unconstitutional under the Fifth Amendment on the ground that compliance therewith required that persons implicate themselves in illegal activities. In advancing the argument, not unfamiliar to this court, that 21 U.S.C. § 176a effectively annuls the Fifth Amendment privilege against self-incrimination, defendants concede that the statute "does not of itself require any disclosure, but rather it requires incriminating disclosure through its incorporation of other statutes which call for such disclosure." Defendants' Memorandum of Law in Support of Motions to Dismiss Indictment, at 2. The incorporated provisions, according to defendants, are those of either the Marihuana Tax Act, specifically 26 U.S.C. § 4755, or the general customs laws, Title 19 of the United States Code, or both. The challenged statute reads, in pertinent part, as follows:

"Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned ...."4

Adverting to the alternative preconditions of illegality, i. e., importation "contrary to law" or smuggling or introduction into the United States of marihuana "which should have been invoiced," defendants suggest the necessity of reference to other statutes to determine the source of legislative proscription of the conduct alleged in the indictment. As to the requirement of invoicing, attention is drawn to various provisions of the general customs laws, e. g., 19 U.S.C. §§ 1484, 1485, and 1497, providing for the entry and declaration of articles brought into the country. As to what constitutes importation "contrary to law," defendants refer to both the general customs laws and the Marihuana Tax Act, 26 U.S.C. § 4741 et seq. Section 4755(a) (1) of the latter act provides that

"it shall be unlawful for any person required to register and pay the special tax under the provisions of sections 4751 to 4753, inclusive, to import, manufacture, produce, compound, sell, deal in, dispense, distribute, prescribe, administer, or give away marihuana without having so registered and paid such tax."

Defendants contend that, to the extent that 21 U.S.C. § 176a relies upon 26 U.S.C. § 4755 as the basis of illegality, an individual cannot be prosecuted under § 176a without eviscerating his vital protection against self-incrimination afforded by the Fifth Amendment. Otherwise, the privilege could be circumvented by "ingeniously drawn legislation." Marchetti v. United States, 390 U.S. 39, 52, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968).

Alternatively, defendants view the general customs laws as the fount of illegality in 21 U.S.C. § 176a. While conceding the validity of the customs registration requirements of Title 19, defendants assert that prosecution under § 176a suffers the same constitutional infirmity as described and condemned in Leary v. United States, supra. Simply because § 176a "uses some isolated incorporations from Title 19," it does not follow that "such odious specific legislation as § 176a," conceived as "part of the comprehensive federal scheme to control marijuana," is saved by the "generality of Title 19." Defendants' Memorandum of Law in Support of Motions to Dismiss Indictment, at 4, 5....

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