United States v. Heng Awkak Roman

Citation356 F. Supp. 434
Decision Date19 March 1973
Docket NumberNo. 72 Cr. 1325.,72 Cr. 1325.
PartiesUNITED STATES of America v. HENG AWKAK ROMAN and Lee Koo, Defendants.
CourtU.S. District Court — Southern District of New York

356 F. Supp. 434

HENG AWKAK ROMAN and Lee Koo, Defendants.

No. 72 Cr. 1325.

United States District Court, S. D. New York.

March 19, 1973.

356 F. Supp. 435

Whitney North Seymour, Jr., U. S. Atty., for the Government; by Franklin B. Velie, Asst. U. S. Atty.

Gilbert Epstein, New York City, for defendant Lee Koo.

Robert Kasanof, New York City, for defendant Heng Roman; by Larry S. Greenberg, The Legal Aid Society, New York City.


FREDERICK van PELT BRYAN, District Judge:

Defendants Heng Roman (Heng) and Lee Koo (Koo) were tried before me without a jury on a two-count indictment charging them in count I with conspiracy to violate the narcotics laws, 21 U.S.C. §§ 846, 963, and in count II with possession of 2.5 kilograms of heroin, in the Southern District of New York on November 20, 1972, with intent to distribute, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). At the conclusion of the four-day trial, I found both defendants guilty on the conspiracy count (count I), and reserved decision on the substantive count (count II). Both sides filed post-trial briefs, the last of which was filed on March 7, 1973. I now find both defendants guilty of an attempt to commit the crime charged in the substantive count.

The facts relating to the substantive count are as follows: John T. Smith, the informer in this case, after several preliminary meetings with Heng, met with both defendants on November 7, 1972 at the Strand Hotel in Singapore. The ensuing discussion concerned the importation and sale of substantial amounts of narcotics in the United States. On November 12th or 13th, the defendants picked up Smith's suitcase at his hotel. The following evening they showed it to Smith at Heng's house. Smith saw that it contained white powder, which Heng said was 2.5 kilograms of heroin. Subsequent laboratory analysis confirmed that it was indeed heroin, over 96% pure. The next day Heng drove Smith to the airport, with the suitcase in the trunk of the car, with the heroin in it. At the airport, Smith, without Heng's knowledge, gave the suitcase to an agent of the Bureau of Narcotics and Dangerous Drugs (BNDD). The heroin it contained, which is the subject of count II, was removed, and thereafter remained in the custody of law enforcement officers. Smith then flew to New York. Subsequently, the heroin was brought to New York by the BNDD and was produced at the trial.

After Smith arrived in New York City, he contacted BNDD agents here. On November 20, 1972, he picked up the suitcase, which by then contained only soap powder packaged as the heroin had been, at the BNDD office here and placed it in a locker in Pennsylvania Station. Later that evening, by prearrangement made with defendants in Singapore, Smith met them at the Hotel McAlpin in Manhattan and showed Heng the key to the locker.1

That evening, November 20th, and the following day, the 21st, the defendants offered to sell the 2.5 kilograms of heroin to agents of the BNDD who were posing as buyers. The agents sought to purchase simultaneously an additional 25

356 F. Supp. 436
kilograms which Heng claimed to have under defendants' control on the West Coast. Heng insisted the initial transaction be limited to the 2.5 kilograms. When it became apparent that an impasse in the negotiations had developed, the agents arrested both defendants

Of the two defendants, Heng conducted virtually all the negotiations and nothing further need be said with regard to him. Koo speaks practically no English. Nevertheless, Koo's participation in and full knowledge of the transaction are established by the following facts, among others: Heng's characterization of Koo as his partner and his supplier's right hand man; Koo's presence at key meetings on the 20th and 21st, as well as earlier in Singapore when the heroin in the suitcase was shown to Smith; Koo's conversations with Heng in Chinese during the negotiations; Koo's occasional participation in broken English in the negotiations; and Koo's accompaniment of Heng on what was their prearranged and first trip to the United States.2

As is apparent from these findings of fact, I do not believe and reject Heng's testimony that he never had any dealings, or other connection with or possessed any narcotics and that this elaborate plan, the other parts of which he admitted, was merely a scheme to defraud Smith, the informer, by obtaining money from Smith but not producing any narcotics, to retaliate for a wrong that he claimed Smith had previously done him.

Had the heroin still been in the suitcase at Pennsylvania Station on November 20, 1972, and had Smith in fact been a true accomplice of the defendants, the defendants would have had constructive possession of the heroin, even though Smith retained the key to the locker containing the suitcase. "Constructive possession is found only where the defendant has set the price for the sale, or was able to assure delivery or had the final say as to the means of transfer." United States v. Steward, 451 F.2d 1203, 1207 (2d Cir. 1971). This principle has been applied in numerous cases in this circuit. Compare United States v. Lopez, 355 F.2d 250 (2d Cir. 1966) and United States v. Rivera, 346 F.2d 942 (2d Cir. 1965) and United States v. Carter, 320 F.2d 1 (2d Cir. 1963) and United States v. Douglas, 319 F.2d 526 (2d Cir. 1963) and United States v. Ramis, 315 F.2d 437 (2d Cir. 1963) (all finding constructive possession) with United States v. Steward, supra, at 1207 and United States v. Jones, 308 F.2d 26 (2d Cir. 1962) (en banc) (finding no constructive possession). If the realities of the situation on November 20, 1972 had been as the defendants supposed, constructive possession could have been found since they set the price and would have been able to assure delivery. The three indicia of constructive possession are disjunctive; a finding that any one exists is sufficient basis...

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    ...the crime was impossible of commission.27 Judge Bryan's thorough analysis of the contours of the impossibility defense in United States v. Heng Awkak Roman,28 described by our Court of Appeals as an "admirable opinion,"29 need not be reprinted here. Rather it is sufficient to note that ther......
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