United States v. Kismetoglu, Crim. No. 8315.

• Decision Date: 22 October 1971
• Docket Number: Crim. No. 8315.
• Parties: UNITED STATES of America, Plaintiff, v. Agop KISMETOGLU, Defendant.
• Court: U.S. District Court — Central District of California

350 F. Supp. 333

UNITED STATES of America, Plaintiff, v. Agop KISMETOGLU, Defendant.

Crim. No. 8315.

United States District Court, C. D. California.

October 22, 1971.

William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civil Division, Larry L. Dier, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Robert N. Harris, Jr., Los Angeles, Cal., for defendant.

JUDGMENT OF ACQUITTAL AND ORDER CONDITIONALLY GRANTING DEFENDANT'S MOTION FOR RETURN OF PROPERTY

PREGERSON, District Judge.

A trial having been held on the Indictment filed herein charging the defendant, Agop Kismetoglu, with the commission of a violation of Title 18, United States Code, Section 545 (Smuggling goods into the United States), and the jury having returned a verdict of guilty, the defendant has moved for judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for return of the property that was seized from him by the Bureau of Customs.

On a motion for judgment of acquittal the Court must decide whether the evidence is insufficient to sustain a conviction of the offense charged. In reaching his decision, the Court must view the evidence in the light most favorable to the government.

This has been a vexing case. The gravamen of the offense is the clandestine introduction into the United States with specific intent to defraud the United States, of merchandise that should be declared to customs inspectors. The evidence brought out the following facts:

On the evening of June 4, 1971, the defendant, who is 41 years old, his wife, and his three minor children arrived at Los Angeles International Airport aboard a Lufthansa flight from Beirut, Lebanon. Upon arrival their luggage contained 167 watches and 1841 pieces of gold jewelry. The bulk of the jewelry was wrapped in bundles of underwear and other articles of clothing. Some items were secreted in two cake tins, two cigarette packages, and a cylindrical container. The defendant testified that his wife had packed these items in that fashion because they wanted to hide them from the Lebanese authorities as they feared confiscation at the Beirut airport upon their permanent departure from Lebanon. Such an explanation may sound implausible to an American citizen residing in California, but sometimes it is hard for us to understand the fears that plague the minds of people living in foreign lands under different political conditions.

The defendant is an Armenian. He was born in Turkey, where he attended grade school until age 10. The defendant's wife is also an Armenian, and she also terminated her formal education at an early age. After the defendant left school, he apprenticed as a watchmaker. At one time he owned a small business in Istanbul, but it was destroyed by looters during a riot. Thereafter he left for Lebanon, where he married, raised a family, and started a new business.

In December 1970 the Kismetoglus decided to leave Lebanon because of political unrest and turmoil. Before their departure they sold their jewelry store and about 40% of its inventory. They were unable to sell the balance of the inventory and so were forced to take it with them as they left Lebanon.

In Turkey and in Lebanon the defendant lived as a small shopkeeper and a member of an ethnic minority—certainly a precarious position. It is understandable that the Kismetoglus felt vulnerable and feared confiscation of their property by Lebanese airport guards.

Shortly before their arrival at Los Angeles International Airport, while the plane was still airborne, a Lufthansa stewardess distributed certain immigration and customs forms. Although the defendant and his wife speak some English, neither is fluent in the language. Mrs. Kismetoglu completed the forms— her husband, as I recall his testimony, was tending to the children—and she wrote down that they had nothing to declare. She testified that she was confused and understood the word "customs" on the form to signify "traditions" or "habits" rather than to refer to border inspection.

At the customs inspection counter at the Los Angeles airport, Kismetoglu, in English, was asked if he had anything to declare, and he answered, "No." The question was repeated; the answer was the same. The inspector, as I recall the evidence, spotted a bulge in his coat pocket, removed the contents, found jewelry, and a search through all the luggage commenced. Somewhere along the line, because of the language barrier, an interpreter was found and brought forward. The jewelry, which represents most of the defendant's lifetime possessions, was confiscated and the defendant arrested.

In addition, the Lufthansa plane had been late on arrival, and the family was being rushed by the Lufthansa personnel so that they could make connections with the last flight to Fresno, where Kismetoglu's brother was waiting at the airport.

Kismetoglu would have had to be stupid to suppose that he could sneak all of this jewelry through customs without detection. I think his failure to make an oral declaration was most likely caused by the interplay of a number of factors: the language barrier; the pressure to catch the...