United States v. Quong

• Decision Date: 31 May 1962
• Docket Number: No. 14347-14349.,14347-14349.
• Citation: 303 F.2d 499
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe QUONG, Joe Wing Fong and Joe Wing Wah, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

303 F.2d 499 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Joe QUONG, Joe Wing Fong and Joe Wing Wah, Defendants-Appellants.

Nos. 14347-14349.

United States Court of Appeals Sixth Circuit.

May 31, 1962.

Frank W. Oliver and Melvin B. Lewis, Chicago, Ill., for appellants.

Warner Hodges, U. S. Atty., Memphis, Tenn. (Herbert J. Miller, Jr., Asst. Atty. Gen., Crim. Div., Dept. of Justice, Washington, D. C., Eli Slotkin, Sp. Representative, New York City, on the brief), for appellee.

Before MAGRUDER and O'SULLIVAN, Circuit Judges, and DARR, District Judge.

DARR, District Judge.

Joe Quong and his two sons, Joe Wing Wah and Joe Wing Fong, appellants, with others besides, were accused in the first five counts of a thirteen-count indictment with five separate conspiracies, each charging an agreement to violate the Trading With the Enemy Act and regulations thereunder¹ and to violate the statute making it unlawful to knowingly import merchandise contrary to law.² Two counts (VII and VIII) charged Joe Quong with the substantive offense of violating the Trading With the Enemy Act at two different times; two counts (VI and IX) charged Joe Wing Wah with the same substantive offense at separate times; one count (VII) accused Joe Wing Fong with violating the Trading With the Enemy Act; and Lun Fee Lee was one of the accused in count V of the indictment as a conspirator and was charged in count XIII with importing merchandise into this country contrary to law.

Only the appellants and Lee were the accused at the trial. Lee was acquitted; the appellant Fong was acquitted of the charge in the substantive count (VII) but convicted of the five conspiracy counts (I-V); and Joe Quong and Joe Wing Wah were convicted on all charges against them.

The Trading With the Enemy Act was made a law during the time of World War I, since which time several amendments have been added. This law provides that the President is authorized, by direct action or through a designate, to make regulations for carrying out the purposes of the Act. The Act is effective during war or a national emergency.

During the course of the United States' action in Korea, in combat with Chinese Communists, the President of the United States declared an emergency. The President delegated to the Secretary of the Treasury certain powers to implement the Act in accord with its terms. On December 17, 1950 the Secretary promulgated and issued the Foreign Assets Control Regulations, which prohibit any dealings by persons subject to the jurisdiction of the United States, in any manner, direct or indirect, with Communist China. Among the prohibited goods listed in the Regulations is "Drugs, Chinese type." The purpose of the Regulations being to deprive the Chinese Communists of all economic advantages accruing from trade with the United States and the availability of United States dollars.

The law against smuggling, among other things, makes it illegal to fraudulently or knowingly import or bring into the United States, any merchandise contrary to law, or receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.

It might be here noted that the indictment sets out the merchandise transported in violation of the Trading With the Enemy Act and Regulations thereunder to have been Chinese-type drugs.

The proof, to be more particularized hereinafter, submitted to the jury reveals the transactions by the appellants and others to have been as follows:

The life of the conspiracy was between November 1, 1956 and October 1, 1958. In the transactions hereafter recited the appellants used various fictitious names, particularly Joe Quong used the name Joe Wilson.

Quong and his family, including the two sons here involved, lived in Chicago, Illinois, at the beginning of the conspiracies. On May 1, 1957, Joe Quong and his son Joe Wing Wah appeared in Memphis and established a base of operation. Quong's other son, appellant, Joe Wing Fong, remained active in a firm called Sing Lee Company, 743 W. North Avenue, Chicago, Illinois, where he, under the name of Fong Wing, received much of the merchandise in question from other points and made shipments to Quong and Wah at 1240 Florida Street, Memphis, Tennessee. Quong and Wah made arrangements with a warehouse to receive merchandise and bank accounts were opened. Joe Quong had a store building on Florida Street in Memphis with a sign on the front window "Joe Wilson — Teas and Dried Vegetables," which was used as a front for dealing in Chinese-type drugs. Quong had also arranged for warehouses in other cities for the storage of "Chinese products, Chinese food."

In Vancouver, British Columbia, Canada, were housed Gold City Estates, Ltd. and Kuo Seun Importers, Ltd., both named co-conspirators in the indictment. These organizations were affiliates, Seto Gock being the principal officer. Other import organizations in Vancouver with which appellants had dealings were Kam Yeu, Ltd. and a firm called Yeun Fong. To these organizations in Vancouver, there came from the Orient Chinese-type drugs which were thereafter transported by Canadians cross-country to points in Canada across the border from Niagara Falls, New York and from Detroit, Michigan. This merchandise entered the United States without complying with the law and thereafter moved to where they ultimately came into the possession of the appellants, or some of them in Memphis and Chicago.

Quong had a circular showing a list of his products, identified by witnesses for the government and one witness for the appellants as listing Chinese-type drugs. By this circular and otherwise these Chinese-type drugs were sold to various retail outlets. These drugs were ordered by appellants, principally Joe Quong, from or through the Gold City Estates, Ltd. — Kuo Seun organizations in Vancouver and less amounts from the other organizations in that city.

Payments for the purchases of the merchandise and for expenses of transportation and storage were made by checks and drafts signed in the most part by Joe Quong, but some of them were signed by Joe Wing Wah and some by Joe Wing Fong. On the expense items an example is, Harry Chad and Emil Buchamer were paid $15,723.77, principally for smuggling the goods into this country. There was a total of some eighty-six (86) bank checks and drafts issued for the purposes mentioned and the sum of the amounts thereof was $111,723.77.

The operations by the Canadians and these appellants were underhanded and reflect conniving with each other.

The proof offered in connection with the conspiracy and the proof to sustain the substantive counts against Quong and Wah covered the subject of venue.

1. The appellants did not testify for themselves and the proof offered for defense was negligible.

The trial of this case consumed ten trial days. Exhibits amounting to about fifteen hundred sheets of paper were introduced in evidence.

As the appellants did not introduce appreciable proof in defense of the accusations against them, their complaints here are the assertions of reasons why the government had no case or made no case against them.

The record discloses that at the trial there were a flood of objections on the part of appellants' attorneys to the admissibility of evidence, the competency of evidence, the conduct of the Trial Judge and the United States Attorney and to the Judge's charge. These objections are generally incorporated into some twenty-five questions under the heading "Statement of Questions Involved" and offered as reasons why the judgments should be reversed.

2. The appellants declare that the government had no case against them to start with because (1) the words "Chinese-type drugs" in the Regulations are meaningless and that the Regulations are void and (2) that the indictment contained the words "Chinese-type drugs" and that these words are meaningless, and thus there was no legal accusation against them.

These objections go to the substantive counts and to the portion of the conspiracy counts charging intent to violate the Trading With the Enemy Act.

The witness John Hong Hall testified that he was the third generation dealing in Chinese drugs in Chinatown, San Francisco. He had in the courtroom a number of packages of the merchandise he had received from appellant Quong and testified as to each package, stating they were traditionally and historically Chinese drugs or Chinese-type drugs and in many instances gave the ailment for which the drug was used. He further said that when the Regulation pertaining to the importation of this type of merchandise was first published, the Chinese papers carried big headlines with the story that such type merchandise could no longer be legally imported. He further said that after the Regulations came out Chinese-type drugs were unavailable in the United States and he knew they could not be imported; that he knew the drugs he bought from Quong were imported, but that he did not think he was violating the law by purchasing the drugs after they were brought into the United States.

Mrs. Lapierre, connected with the Great Western Freight Forwarders, Ltd., Brantford, Ontario, Canada, testified that she found in a damaged package of the merchandise in question and in other cartons, which she opened, such things as seeds, roots, salve, liquids and small packages of powder wrapped in paper on which were instructions in Chinese figures.

The appellants, particularly Quong, had lists of merchandise for sales purposes which were identified by witnesses familiar with China and its traditions as listing Chinese-type drugs. Likewise these witnesses testified that the substances described by Mrs. Lapierre as being found in the cartons were also Chinese-type drugs.

An indictment or a regulation employing words or phrases having a...