United States v. Feldman, Crim. No. 13155.

Citation366 F. Supp. 356
Decision Date15 November 1973
Docket NumberCrim. No. 13155.
PartiesUNITED STATES of America, Plaintiff, v. Jerrold Benton FELDMAN et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)

Thomas P. Young, Asst. U. S. Atty., Harold M. Fong, U. S. Atty., Honolulu, Haw., for plaintiff.

Brook Hart, Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, Haw., for defendants.

DECISION AND ORDER ON MOTIONS TO SUPPRESS, MOTION FOR SEPARATE COUNTS, FOR SEPARATE TRIAL, AND SUGGESTION OF FAULTY INDICTMENT

SAMUEL P. KING, District Judge.

For purposes of this decision, the facts are taken from the indictment, the search warrants, the affidavit of the assistant United States attorney as modified by stipulated changes in paragraphs 11, 12, and 22, and the testimony of Customs Agent Albert Ah Nee at the hearing on the motions to suppress.

The pending motions are (1) Motion to Suppress and for Return of Property on Behalf of Defendants Richard Mark Feldman, Lynn Hollingsworth Feldman, and Marina Colleen Omeara, (2) Motion to Suppress and for Return of Property on Behalf of Defendant Jerrold Benton Feldman, and (3) Motion for Separate Counts, for Separate Trial of Counts, and for Severance of Defendant Jerrold Benton Feldman. There is also (4) the suggestion by defendants in their memoranda that the offenses of importation charged in the first three counts of the indictment were completed in California and therefore improperly laid in Hawaii.

Customs Dog "Toni 403A" with the help of Customs Dog Handler Marvin P. Calhoune sniffed out a mail package (Parcel A) containing approximately two pounds three ounces of marihuana in hashish form at the Los Angeles Airmail Facility, Los Angeles, California, on October 30, 1972. The package was postmarked "Netherlands", showed no return address, and was directed to Mr. Mortimer Feldman, c/o Jerry Feldman, 5561 Kalanianaole Highway, Honolulu, Hawaii 96821. Investigation on the same day turned up two more such mail packages at the facility, as confirmed by Customs Opener Verifier Packer Timothy Durant. One (Parcel B) contained approximately two pounds five ounces of marihuana in hashish form, was postmarked "Netherlands", showed no return address, and was directed to Mr. Richard Feldman, 2185 Round Top Drive, Honolulu, Hawaii 96822. The other (Parcel C) contained approximately two pounds three ounces of marihuana in hashish form, was postmarked "Netherlands", bore the return address "Van Pelt, # 98 Prins H. Hivstrasse, Ams., Holland", and was directed to Mr. and Mrs. R. Cesario, P. O. Box 15304, Honolulu, Hawaii 96815.

The three packages were forwarded to United States Postal Inspector P. R. Hirsch, Honolulu, Hawaii, by registered mail pouches, and subsequently delivered to the United States Customs Agency Service, Honolulu, Hawaii, on November 9, 1972.

Examination of the contents of the mail packages by Police Chemist Milton Chang, Honolulu Police Department, reaffirmed that the substance was indeed marihuana in hashish form. Further investigation disclosed that Defendant Richard Feldman resided and received mail at 2185 Round Top Drive, Honolulu, Hawaii 96822, that Defendant Jerrold Feldman, on November 10 and 11, 1972, submitted to postal authorities at the Waialae-Kahala Post Office a change of address order and a written request that mail addressed to Mortimer Feldman, c/o Jerry Feldman, 5561 Kalanianaole Highway, Honolulu, Hawaii 96821, be forwarded to Jerry Feldman, 2126 Wilder Ave., Honolulu, Hawaii 96822, and that Defendant Robert Cesario was registered to and receiving mail at P. O. Box 15304, Honolulu, Hawaii 96815.

RICHARD MARK FELDMAN, LYNN HOLLINGSWORTH FELDMAN, AND MARINA COLLEEN OMEARA

On November 16, 1972, at about 10:00 A.M., the parcel addressed to Defendant Richard Feldman was taken to the Round Top address by postal authorities for delivery. The addressee was not at home. A postal notice of attempt to deliver mail was left at the premises indicating that the parcel would be redelivered on Friday, November 17, 1972. Defendant Lynn Feldman approached the mail carrier on his route about an hour after the attempted delivery and requested the parcel, but the mail carrier informed her that the parcel had been returned to the post office by another carrier and would be redelivered the next day.

On November 17, 1972, at about 10:00 A.M., a supervised delivery of the same parcel was made at the Round Top Drive address to Defendant Lynn Feldman. The premises were kept under surveillance. At about 10:23 A.M., Defendant Marina Colleen Omeara was seen leaving the house. She was arrested and questioned. She had nothing with her of an incriminating nature.

At about 12:30 P.M., Defendant Richard Feldman entered the house. At about 12:50 P.M., customs agents entered the house pursuant to a search warrant issued earlier that day at about 9:30 A.M. by United States Magistrate Harold R. Sullivan. A search revealed the wrappings of the parcel and the tin can container for the hashish in a garbage can directly outside of the kitchen door, but no contraband. Defendants Richard Feldman and Lynn Feldman, who were husband and wife, were arrested and advised of their constitutional rights and that the search would continue until the contraband was found. After conferring with his wife, Defendant Richard Feldman informed Customs Agent Albert Ah Nee that the contents of the tin can had been thrown from the rear porch into the shrubbery and directed the agent to the area where the hashish was found on the ground approximately 25 yards from the house.

The search of the house continued and resulted in the discovery of (a) receipts for three Western Union International telegrams dated October 23, 24, and 26, 1972, from Defendant Richard Feldman to Lynn Percifield, American Express, Amsterdam, Netherlands, containing instructions concerning the shipment of "cheese" to Mr. and Mrs. R. Cesario, (b) a United States Passport issued to Lynn Hollingsworth Percifield and showing that she had entered the Netherlands on October 21, 1972, and returned to the United States on October 27, 1972, (c) a yellow plastic bag identical to that used to wrap the hashish in the mail packages in question.

JERROLD BENTON FELDMAN

On November 16, 1972, at about 11:30 A.M., the parcel addressed to Mortimer Feldman, c/o Jerry Feldman was taken to the Wilder Avenue address by postal authorities for delivery. The addressee was not at home. A postal notice of attempt to deliver mail was left at the premises indicating that the parcel would be redelivered on Friday, November 17, 1972.

On November 17, 1972, at about 8:00 A.M., Defendant Jerrold Feldman asked at the main post office for the parcel and was told that the carrier had already departed with it. At about 2:30 P.M., the carrier arrived at the Wilder Avenue address and found a note posted on the front door of the house, addressed to him, and instructing him to "place the parcel inside the white door by the garage and close it afterwards" and further found in the mail box the notice of attempt to deliver mail with written instructions to the mail carrier to leave the parcel "inside door" and signed "Jerry Feldman". The notes were retrieved by the mail carrier and the parcel was placed inside the rear door of the house as requested.

The premises were kept under surveillance. At about 3:30 P.M., Defendant Jerrold Feldman entered the house. At about 3:35 P.M., he departed. He was followed for a while and then arrested. He had nothing with him of an incriminating nature.

The Wilder Avenue house was entered pursuant to a search warrant issued earlier that day at about 9:30 A.M. by United States Magistrate Harold R. Sullivan. A search produced immediately the wrappings and the metal container from the parcel, both in plain view on a table in the living room. The hashish was subsequently discovered in a dresser drawer in a bedroom and residual amounts of marihuana were discovered in an adjoining room.

ROBERT FRANK CESARIO

From November 18 through November 30, 1972, approximately five attempts were made to effect delivery of the parcel addressed to Mr. and Mrs. R. Cesario. There was no response to notices placed in the post office box that the parcel was available. Thereafter, no further attempt was made at delivery and the contraband was seized.

The Search Warrants

The search warrant relating to the Round Top Drive premises, and the search warrant relating to the Wilder Avenue premises, were both issued on November 17, 1972, at about 9:30 A.M. and before the contraband which was the subject of the warrant was on the premises.

The usual form of search warrant was used with the printed words "there is now being concealed certain property, namely" and to each had been added the typed description "marihuana in hashish form and documents and instrumentalities relating to the shipment and ownership of the marihuana, more specifically described in paragraph 2 of the Affidavit." On the other hand, the affidavit in each case clearly set forth that the contraband was not yet on the premises but "will be delivered" later that day (in one case about a half hour later, in the other about an hour later). Each affidavit also contained a paragraph reading:

"That a surveillance will be maintained by the said authorized Customs officers to insure that the parcel is taken into the said premises and that this warrant will not be executed until after the offense has been committed."

The attached affidavits recite the circumstances leading to the arrival and inspection of the mail packages at Los Angeles and Honolulu.

The Indictment

By indictment filed December 15, 1972, the United States charged: in Count I, Defendants Richard Mark Feldman and Lynn Hollingsworth Feldman with illegal importation into Hawaii of Parcel A in violation of 21 U.S.C. §§ 952(a) and 960(a)(1); in Count II, Defendants Jerrold Benton Feldman and Lynn Hollingsworth Feldman with illegal importation into Hawaii of...

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