United States v. Pui Kan Lam

• Decision Date: 21 August 1973
• Docket Number: 73-1270.,No. 888,889,Dockets 73-1150,888
• Citation: 483 F.2d 1202
• Parties: UNITED STATES of America, Appellee, v. PUI KAN LAM et al., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

483 F.2d 1202 (1973)

UNITED STATES of America, Appellee, v. PUI KAN LAM et al., Appellants.

Nos. 888, 889, Dockets 73-1150, 73-1270.

United States Court of Appeals, Second Circuit.

Argued May 23, 1973.

Decided August 21, 1973.

Alan Scribner, New York City (Albert J. Krieger and Ivan S. Fisher, New York City, on the brief), for appellants Wai Kwon Yip and Wai Kwok Yip.

Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant Pui Kan Lam.

Charles H. Fier, Brooklyn, N.Y., for appellant Pui Leung Lam.

L. Kevin Sheridan, Asst. U.S. Atty. (Robert A. Morse, U.S. Atty. for the E. D. of New York, and Robert L. Clarey, Asst. U.S. Atty., on the brief), for appellee.

Before KAUFMAN, Chief Judge, and KILKENNY^* and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Following a two-week trial before the late Hon. George Rosling and a jury in the Eastern District of New York, appellants Pui Kan Lam ("Kan Lam"), Pui Leung Lam ("Leung Lam"), Wai Kwok Yip ("Kwok Yip") and Wai Kwon Yip ("Kwon Yip") were found guilty on one count of possessing with intent to distribute approximately three pounds of heroin. 21 U.S.C. § 841(a)(1).¹ On this appeal all appellants claim that an electronic interception of a conversation between appellants Kan Lam and Kwok Yip was illegal and that a tape recording of that conversation was erroneously admitted into evidence during the Government's rebuttal case. Additionally, appellant Leung Lam challenges the sufficiency of the evidence supporting his conviction. We reject all contentions of error and affirm the convictions.

The electronic interception occurred at Apartment 1F in a small building, 43-24 42nd Street, located in Queens, New York. Apartment 1F had been occupied by two males of Oriental extraction who were unrelated to appellants and who had been arrested on heroin importation charges in January, 1972. On June 26, 1972, the wife of the superintendent of 43-24 42nd Street called Customs agents (with whom she had become acquainted during the January investigation) to report that several young males, likewise of Oriental extraction, were attempting to gain entrance to Apartment 1F.

Suspicions aroused, Customs agents visited the building, informed the tenants of Apartment 1F of the narcotics-related history of the apartment, and obtained "free access" to it, including a consent to search it and to "do anything they wanted to." From the occupant of the apartment over 1F, the agents were told of hammering noises coming from the back wall of the bedroom heard during Christmas week, 1971. The tenants of 1F were instructed that in the event the men came back seeking access to the apartment they should be told the apartment belonged to a mythical uncle and that they should return the following day between noon and 1:00 p.m. when the uncle would be there.

As luck would have it, the four Oriental visitors appeared late that very night. One of them said that the four were the former occupants of 1F and wished to retrieve "immigration papers" left in the apartment. The prearranged story was recited, the night visitors departed, and Customs was called. A neighbor in the building noted the license plate number of the visitors' car and a check revealed that it was registered to the father of appellants Yip.

The next morning the agents were admitted to 1F after the tenants had left. A search revealed approximately three pounds of heroin stashed behind a bedroom baseboard. The agents dusted the heroin bags with fluorescent powder so as to leave a residue on the hands of anyone touching them.

The agents placed a transmitting "bug" beneath a mattress in the 1F bedroom and receiving equipment in the superintendent's apartment. They had received no prior judicial approval for these actions.

At approximately noon on the 27th the surveilling agents spotted the Yip car containing four occupants. After a stop at a nearby restaurant the four occupants walked toward the apartment. Two, Kwok Yip and Kan Lam, went into a store to purchase a screwdriver and a shopping bag, while the others waited outside. The appellants then divided up, with three heading for 43-24 42nd Street and Leung Lam (whose contentions of insufficiency of the evidence will be discussed infra) walking alone in the same general direction.

The Yips and Kan Lam were admitted to Apartment 1F by a Customs agent posing as a superintendent's helper. From a peephole in the superintendent's apartment and the receiving equipment placed therein the agents monitored the three appellants' activities. Kwon Yip left Apartment 1F almost immediately after entry. The monitoring equipment then picked up a conversation in Chinese (which the agents did not understand) and some ripping noises. Shortly thereafter, the two remaining appellants, Kwok Yip and Kan Lam, emerged from 1F and were arrested. Kwon Yip was carrying a shopping bag which contained the heroin packages dusted by the agents. Leung Lam was also arrested. Illuminatingly, on subsequent examination the hands of Kan Lam revealed traces of fluorescent powder.

Appellants' defense was that they intended to retrieve money hidden in 1F, not heroin. Kan Lam testified that he was told of the hidden money by a somewhat mysterious "Chang" during a Chinatown conversation and was also shown a map of Queens indicating 43-24 42nd Street's location. At the time, however, Kan Lam dismissed the whole affair as a "joke." Later he claimed to have changed his mind and recruited Kwok Yip (who had access to a car) to help recover the "money." According to Kan Lam, only Kwok Yip was told of the purpose of the several trips to Queens taken by appellants; the others were taken "along for the ride." It suffices here to say that the other appellants testified along the same general lines.

After all the appellants had testified the Government introduced in rebuttal, through the testimony of a Customs agent and a Chinese interpreter, a transcript of that part of the intercepted conversation that was translatable and played the whole tape for the jury. The actual conversation introduced contained no specific references to heroin but does demonstrate that two men were engaged in conversation while the baseboard was being ripped off. This contradicted Kwok Yip's testimony on direct examination that immediately after entry he went into Apartment 1F's bathroom and remained there until after Kan Lam removed the baseboard. The final sentence of the translated transcript of the intercepted conversation introduced was: "Next time it's better to go out from here." According to appellant Kan Lam, that sentence "implied that the activities of the defendants involved other and similar activities which would be going on in the future" and "undercut the joint defense, which was that the entry into the apartment was a one-time event for the purpose of getting $30,000."

All appellants contend in varying ways that the warrantless interception of the conversation in 1F was illegal under the federal statute regulating such matters, 18 U.S.C. § 2510 et seq., and the fourth amendment. Appellants' argument of illegality is premised on the fact that there was no "consent" to the interception by one of the parties to the conversation² which, under the statute, 18 U.S.C. § 2511(2)(c), is the only applicable exception to the general warrant requirement. Appellants Yip, and apparently appellant Leung Lam, argue that the interception was the principal basis for the probable cause necessary to justify the arrest of appellant Kwon Yip and the resulting seizure of the heroin. Since the interception was illegal, the argument runs, so was the seizure. All appellants additionally argue that the introduction of the tape recording in the Government's rebuttal case prejudiced them in the ways described above.

At the threshold, appellants Kwon Yip and Leung Lam, who were not at 1F at the time of the allegedly illegal interception, lack standing to challenge it under either the constitutional, see, e. g., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), or statutory standard. 18 U.S.C. § 2510(11).³ To establish standing these appellants must show not that damaging evidence was introduced against them but rather that their personal rights were violated by the allegedly illegal interception. "Coconspirators and codefendants have been accorded no special standing," Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969), in this regard. See United States v. San Martin, 469 F.2d 5, 8 (2d Cir.1972). Since appellants Kwon Yip and Leung Lam were not in Apartment 1F during the intercepted conversation, they had no legitimate interest in protecting the privacy of the intercepted conversation. They also had no interest in protecting the privacy of the premises for they had no possessory interest in them. See Brown v. United States, supra, 411 U.S. at 223, 93 S.Ct. 1565; cf. Alderman v. United States, supra, 394 U.S. at 176-180, 89 S.Ct. 961.⁴

Appellants Kan Lam and Kwok Yip, however, are rightfully conceded by the Government to have the necessary standing since it was their conversation that was intercepted. Their claim of illegality is nonetheless rejected, because the conversation between them did not occur in a factual setting which legally justified any subjective expectation of privacy they may have had. As a result it was neither an "oral communication" within the meaning of the statute, 18 U.S.C. § 2510(2),⁵ nor entitled to constitutional protection against the "uninvited ear." Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

As we have been advised, "the Fourth Amendment protects people, not places," Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511, and the statutory definition of an "oral communication" tracks this constitutional concept.⁶ The question we have before us is whether the...