United States v. Lodewijkx

• Decision Date: 03 June 1964
• Citation: 230 F. Supp. 212
• Parties: UNITED STATES of America v. Johannes LODEWIJKX, a/k/a John Louis and John Lewis, and Pierre Contresty, a/k/a Pierre Scott, Defendants.
• Court: U.S. District Court — Southern District of New York

230 F. Supp. 212

UNITED STATES of America v. Johannes LODEWIJKX, a/k/a John Louis and John Lewis, and Pierre Contresty, a/k/a Pierre Scott, Defendants.

United States District Court S. D. New York.

June 3, 1964.

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Robert M. Morgenthau, U. S. Atty., for the Southern District of New York for the United States of America, Robert J. McGuire, Asst. U. S. Atty., of counsel.

Abberley, Kooiman, Amon & Marcellino, New York City, for defendant Lodewijkx, Frans J. J. van Heemstra, F. Roberts Blair, New York City, of counsel.

FEINBERG, District Judge.

Defendant, a Dutch national, was arrested in California on February 20, 1964. On February 27, 1964, defendant was transferred to this District and was subsequently indicted for making or causing to be made false statements to the government, 18 U.S.C. § 1001, and for conspiring to violate that section and various provisions of the Export Control Act, 50 App.U.S.C. § 2025 and applicable regulations. Defendant has filed motions to dismiss the indictment, to suppress and return illegally seized evidence, for a bill of particulars, and for discovery and inspection.

Motion to Dismiss Indictment

Defendant moves to dismiss the indictment on the grounds that illegally seized evidence may have been presented to the grand jury and because of unreasonable delay in bringing the indictment. Although not conceding that it is required to do so, the government has submitted to the Court a copy of the grand jury testimony of witnesses Henry W. Anderson, Arnoldus Biemans, and Madeleine Contresty, wife of a co-defendant, and has represented that they were the only pre-indictment witnesses before the grand jury.¹ Anderson is employed by the United States Department of Commerce as agent in charge of the Investigations Division, Office of Export Control. Biemans is a business associate of defendant Lodewijkx's father. I have examined the testimony of these witnesses before the grand jury and conclude that no allegedly illegally seized evidence was presented to the grand jury.² Whether, in fact, other evidence was seized illegally is discussed below.

The other basis for defendant's motion to dismiss the indictment is that there was unnecessary delay in presenting the charge to the grand jury. Defendant was arrested in California on February 20, 1964, arrived in New York on February 27, 1964, and was indicted on April 2, 1964. Defendant pleaded not guilty on April 3, 1964. The government explains any delay as due to the international nature of the alleged scheme and the absence from the United States of the co-defendant Contresty. I find that there has been no unnecessary delay in bringing the indictment under the circumstances of this case. Cf. United States v. Kaufman, 311 F.2d 695, 697-698 (2 Cir. 1963); United States v. Fassoulis, 179 F.Supp. 645 (D.C.S.D.N.Y. 1959), aff'd, 293 F.2d 243, 246 (2 Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961). Accordingly, the motion to dismiss the indictment is denied.

Motion to Suppress

Defendant moves for the suppression and return of certain items taken after a search of his room at the time of his arrest and the suppression of all statements made by him after the adjourned proceedings before the United States Commissioner in California. Although no search warrant was obtained by the arresting officers, the search without a warrant may be proper if incident to a lawful arrest. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Therefore, the Court must decide initially the legality of the arrest.

(a) Legality of arrest

The government first justifies the arrest as made pursuant to a warrant lawfully issued in this District. Defendant claims, however, that the warrant of arrest was improperly issued because the complaint upon which it was based did not show probable cause. Cf. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Di Bella v. United States, 284 F.2d 897 (2 Cir. 1960), vacated on other grounds, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The government also claims that the arrest was legal because it was proper under the law of the state (California) where the arrest was made. Since I find that the arrest was proper on the second theory, it is unnecessary to deal with the question of whether the underlying complaint was sufficient.³

For the purpose of considering the legality of the arrest under state law, it will be assumed that the warrant of arrest was improper as defendant claims. However, even where an arrest is made by federal officials with an improper warrant, or without a warrant and without specific federal statutory authority, the arrest may still be justified if proper under the law of the state where it is made. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (no warrant); Ward v. United States, 316 F.2d 113 (9 Cir.), cert. denied, 375 U.S. 862, 84 S.Ct. 132, 11 L.Ed.2d 89 (1963) (no warrant; justified under California law); United States v. Viale, 312 F.2d 595 (2 Cir.), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963) (no warrant; justified under state law); United States v. O'Donnell, 209 F.Supp. 332 (D.C.Me.1962) (improper warrant; justified under state law); see Giordenello v. United States, supra.

Section 837, California Penal Code provides in part that a private person may arrest another without a warrant:

"3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it."

The test of an arrest made by a private person under California law is whether there is reasonable cause to believe that a felony was committed and that the arrested person has committed it. Cf. Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36 (Sup.Ct.1956); People v. Rodriguez, 140 Cal.App.2d 865, 296 P.2d 38 (Dist.Ct.App.1956); see generally Comment, 45 Calif.L.Rev. 50 (1957).⁴ This test is similar to federal law on what constitutes probable cause for an arrest. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).⁵ The Court of Appeals for the Ninth Circuit in Ward v. United States, 316 F.2d 113, 117 (9 Cir.), cert. denied, 375 U.S. 862, 84 S.Ct. 132, 11 L.Ed.2d 89 (1963) has phrased the test of reasonable cause under California laws as follows:

"Would the information and knowledge the arresting person had lead a person of ordinary reasonable judgment, * * * to believe the person to be arrested had committed the felony?"

See also People v. Chatman, 166 Cal.App. 2d 627, 333 P.2d 374, 376-377 (Dist.Ct. App.1958). Defendant argues that he is entitled to a jury trial on the issue of whether "a felony has been in fact committed" and, therefore, this cannot be determined by the Court on a motion to suppress. However, the issue on the motion is whether the arresting person had reasonable ground to believe that a felony had been committed and no jury trial is required for that at this time. Willson v. Superior Court, supra.

From the evidence adduced at the hearing, I find that the arresting officers in California were Customs Agents who had been in constant touch with other agents in New York and Canada. At the time of the arrest, from information furnished by other government agents and by a freight forwarder who, while seemingly a member of the conspiracy, was secretly cooperating with the government, the arresting agents had reason to believe the following: defendant Lodewijkx had caused a shipment of spare machine parts to be sent from California to New York; a false shipper's export declaration had been filed with government authorities in New York; a conversation between the freight forwarder and the wife of co-defendant Contresty, the alleged head of a ring to transport goods to Cuba, had taken place in the presence of a government agent at which time arrangements were made for the freight forwarder to meet Contresty; Contresty had contracts to provide goods for Cuba; the freight forwarder had been sent to California by Contresty to meet a man named John Lewis; defendant Lodewijkx, alias John Lewis, personally told the freight forwarder that the goods would be eventually transmitted to Cuba. The movements and trips of the freight forwarder and his information as to when certain shipments would be made had been checked by government agents and found to be as reported by him.

On the basis of this, I find that the arresting persons had reasonable cause to believe that there had been committed the felonies of making false shipping export declarations to the government and conspiring to commit that crime and to ship goods to Cuba without a valid export license. It is true that such belief was based in part upon information supplied by an informer, but reasonable cause can be based upon a reliable informer. People v. Chatman, 166 Cal.App.2d 627, 333 P.2d 374, 377 (Dist. Ct.App.1958).⁶

Defendant also argues that even if the agents had ground to arrest under state law, they failed to meet other requirements of state and federal law in carrying out the arrest. Thus, under both California and federal law, the person arrested must be taken before a judicial officer. California Penal Code, § 849; Rule 5, Fed.R.Crim.P. This was clearly done here. Moreover, under both California and federal law, when the arrest is made without a warrant, a complaint must be filed forthwith. Ibid Defendant argues that a complaint should have been filed before the United States Commissioner in California and that this was not done. From the papers before me, I find that a complaint was filed and a warrant of arrest issued in the Southern District of New York on February 20, 1964, and thereafter the arrest in California was made the same day. Defendant was brought that day in California before a United States Commissioner, who was informed of the...