United States v. DeBerry

• Decision Date: 07 November 1973
• Docket Number: Dockets 73-1283,73-1353.,No. 1031,1058,1031
• Citation: 487 F.2d 448
• Parties: UNITED STATES of America, Appellee, v. Ronald DeBERRY and Julius Edwards, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

487 F.2d 448 (1973)

UNITED STATES of America, Appellee, v. Ronald DeBERRY and Julius Edwards, Appellants.

Nos. 1031, 1058, Dockets 73-1283, 73-1353.

United States Court of Appeals, Second Circuit.

Argued July 18, 1973.

Decided November 7, 1973.

Helena P. Solleder, New York City, for appellant DeBerry.

Gilbert Epstein, New York City, for appellant Edwards.

Kenneth Kaplan, Asst. U.S. Atty. (Robert A. Morse, U.S. Atty. for the E. D. New York, Raymond J. Dearie, Asst. U.S. Atty., on the brief), for appellee.

Before MOORE and OAKES, Circuit Judges and GURFEIN,^* District Judge.

OAKES, Circuit Judge:

The principal question raised on this appeal from judgments in the United States District Court for the Eastern District of New York relates to the claim of deprivation of the sixth amendment right to effective counsel by virtue of the fact that the same attorney represented both appellants below. Subsidiary questions include whether the warrantless search of a suitcase containing 25 pounds of marijuana violated the fourth amendment and whether, in the case of appellant DeBerry, the evidence established his possession of the marijuana with the intent to distribute it and whether a statement attributable to his codefendant, Edwards, was improperly admitted into evidence. The judgments convicted appellants, after a jury trial, of possessing with intent to distribute 25 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Appellant Edwards was sentenced to a term of imprisonment of three years and a four-year special parole term; appellant DeBerry was sentenced to a term of imprisonment of two years and a three-year special parole term. A third defendant named in the one-count indictment, one Padilla, was acquitted by the jury.

An alert supervisor of Emery Air Freight Service in Los Angeles noticed that the very same individual who had shipped a suitcase to San Antonio, Texas, on May 10, 1972, proceeded to ship another suitcase to New York on May 11, 1972. The nervous behavior of the shipper had caused the supervisor to open the first bag, which he did under the official air freight rules, Tariff No. 1B,¹ whereupon he found dirty linens. On opening the second suitcase, however, he found 15 bricks of marijuana and thereupon called the Los Angeles Police Department. After inspecting the bag, the Los Angeles police notified Agent Raybourn at the New York office of the Bureau of Narcotics and Dangerous Drugs (BNDD) and provided him with the following information: (1) a description of the shipper; (2) the measurements and color—plaid—of the suitcase; (3) the bill of lading number of the shipment; and (4) the airline (TWA) on which the bag was to be shipped and the flight number of the flight upon which the bag was to depart Los Angeles. A BNDD agent placed the bag under surveillance upon its arrival in New York late in the afternoon of May 12. When the bag was not claimed, it was placed in a locked cage at TWA.

At 2:00 a. m. on the following day, May 13, some 24 hours after the New York BNDD had been told of the shipment and some nine hours after it had actually arrived at JFK, appellant DeBerry presented the shipper's certificate or copy of the bill of lading for the suitcase to the JFK Emery supervisor, who in turn advised the Port Authority police and New York City detectives. While the Emery supervisor went to make a copy of the receipt, DeBerry took the suitcase and left the terminal, proceeding to an automobile parked near the terminal. Upon arriving at the automobile, DeBerry was met by one of the occupants, later identified as appellant Edwards, the trunk was opened and then closed, and DeBerry and Edwards entered the automobile. At this point, the automobile was approached by Detective McKenna of the Port Authority police, who had observed DeBerry pick up the bag and had kept DeBerry under observation in the ensuing moments. A search of the vehicle was conducted and the bag was seized. A suppression hearing resulted in the admission of the bag and its contents at the trial.

An air freight service such as Emery has, in accordance with Item 24 of the Official Air Freight Rules, Tariff No. 1B, the right to inspect all shipments.² In addition, Tariff No. 2 of the rules and regulations of the Emery Air Freight Corporation provides that "all shipments are subject to inspection by the Forwarder." The suspicious behavior of the shipper on the preceding night when he shipped a suitcase containing dirty towels to San Antonio, Texas, was enough to give Emery Air Freight good reason to be suspicious of the shipper's action the following day in sending a suitcase to New York.

We have previously held that an inspection by a carrier is not a governmental search. United States v. Cangiano, 464 F.2d 320 (2d Cir.1972). Here, making the case even stronger than Cangiano, Emery Air Freight conducted the search independently of any information or request received from government officials. We therefore accept the Government's proposition that the search conducted in Los Angeles did not infringe upon appellants' fourth amendment rights. Acceptance of this proposition does not, however, necessarily compel the acceptance of the validity of the seizure that occurred in New York.

It may be argued that the New York seizure was separate and distinct from the California search, and because there was ample opportunity for the New York officers to obtain a warrant for the suitcase's seizure, its warrantless seizure violated the fourth amendment. See Coolidge v. New Hampshire, 403 U.S. 443, 470-471, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971).³ This, however, would ignore the facts and realities of the situation. The suitcase was seized initially in California by Sergeant Figelsky of the Los Angeles Police Department. That seizure although done without warrant was legal, because Emery's legal inspection in effect put the marijuana in Figelsky's plain view; he, therefore, could seize the contraband upon sight. Cf. United States v. Riggs, 474 F.2d 699 (2d Cir. 1973), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973). Figelsky made the seizure by removing one of the bricks of marijuana, marking all the rest of the bricks with his initials, and finally marking the suitcase itself with his initials. He then authorized the suitcase to be shipped on. Even though the suitcase was then in transit, later in the luggage bin, and later still in the freight room, it remained legally "seized" just as much as if it were under the actual physical control of the police. In fact, except for the time that it was actually in the airplane's belly, it was under the close surveillance of the police. Thus, when the agents and police in New York⁴ removed the bag from the back seat of the car appellants were in, they were not making an initial seizure, but rather were merely reasserting control of the suitcase which had already been seized for legal purposes and which was merely being used as bait.⁵ Accordingly, no warrant was required.

Appellant DeBerry also argues that there was insufficient proof that he possessed the 25 pounds of marijuana with the intent to distribute it. By his own admission, however, he and Edwards had traveled to California with the intention of purchasing the marijuana. The suitcase was shipped from California with both appellants knowing that it contained marijuana. They came to the airport to pick it up. DeBerry argues, however, that there was insufficient proof before the jury concerning his intent to distribute, as opposed to his possession for personal use. There was testimony, however, that the quantity of marijuana had a "street value" of about $8,000 and when the Government was going to call a witness to testify that 25 pounds of marijuana would not be kept for "personal use" (so as to require the charge of a lesser included offense under 21 U.S.C. § 844), defense counsel stipulated—in the jury's absence, to be sure—"that this is a large quantity of marijuana" and that it would "be assumed that this kind of quantity won't be of personal use . . . . The average person doesn't have bricks of marijuana for his own use." The judge left it to the jury, in connection with his charge on intent to give away, sell or otherwise distribute the marijuana, to make the determination whether, in the light of the quantity involved and the value of the marijuana, the appellant had such intent. That evidence together with the evidence that Edwards and DeBerry went on a three-day trip to California costing several hundred dollars in plane fare for no apparent purpose other than the purchase of marijuana is sufficient to have permitted this issue to go to the jury. Additionally the stipulation of counsel is such as to render academic the request to charge the lesser included offense, the offense of simple possession or possession for personal use under 21 U.S.C. § 844.

Appellant DeBerry also argues that a statement given by Edwards before the magistrate should not have been admitted in evidence against him under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Edwards, in a colloquy before the magistrate with an Assistant United States Attorney and a BNDD agent present, stated after hearing the agent's statement of the value of the marijuana that this value ($250 per brick) was "not what they paid for the material while they were there." The admission was voluntarily made in the presence of counsel and indeed the attorney told Edwards to be quiet as the statement ended. This admission is not like that in Bruton because DeBerry's own admissions indicated that he had gone to California with Edwards to purchase marijuana and that they did indeed make such a purchase and ship the contents in the plaid suitcase from which the bricks of marijuana were recovered. While in United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973), we have recently questioned the rule that permits "interlocking...