United States v. Reyes, 67 Cr. 438.

• Decision Date: 06 February 1968
• Docket Number: No. 67 Cr. 438.,67 Cr. 438.
• Citation: 280 F. Supp. 267
• Parties: UNITED STATES of America v. Steven REYES, Joseph Cordero and Joaquin Burgos, Defendants.
• Court: U.S. District Court — Southern District of New York

280 F. Supp. 267

UNITED STATES of America v. Steven REYES, Joseph Cordero and Joaquin Burgos, Defendants.

No. 67 Cr. 438.

United States District Court S. D. New York.

February 6, 1968.

Robert M. Morgenthau, U. S. Atty., by Lars I. Kulleseid, Asst. U. S. Atty., New York City, for the United States.

Edmund Allen Rosner, New York City, for defendants.

MOTLEY, District Judge.

Memorandum Opinion On Motions To Suppress And Dismiss Indictment

Defendants Reyes, Cordero and Burgos have been charged in a two count indictment with a violation of 21 U.S.C. § 176a which makes it a crime to deal in or possess illegally imported marihuana.

It is charged in count one that on or about April 26, 1967, defendants, "unlawfully, wilfully and knowingly, and with intent to defraud the United States, did receive, conceal and facilitate the transportation and concealment of a quantity of marihuana * * * 851 grams knowing the same to have been imported and brought into the United States contrary to law in that the importation and bringing into the United States of marihuana by any person required to register and pay the special tax under * * * other statutory provisions without having so registered and paid such tax is unlawful." Count two makes the same charge with respect to 1127 grams of marihuana on or about May 6, 1967.¹ The indictment was filed on May 10, 1967. Defendant Burgos pleaded not guilty on May 19, 1967. On November 30, 1967, Burgos filed two motions.

Motion to Suppress

The first motion seeks an order pursuant to Rule 41(e) F.R.Cr.P. "suppressing all evidence unconstitutionally obtained in this case." No memorandum of law, as required by the rules of this Court, was filed in support of the motion.² Burgos filed an affidavit in which he alleged:

1) "Upon information and belief, it is claimed by the government, that as an incident to my arrest, I was searched and there was seized from my person approximately 1127 grams of marihuana";

2) "Upon information and belief, the government claims, that on or about April 26, 1967, approximately 851 grams of marihuana were seized from a motor vehicle which was being operated by my co-defendant herein, Steven Reyes, and in which my other co-defendant, Joseph Cordero, was a passenger." No other facts are alleged. The affidavit then concludes that neither of the searches and seizures were constitutional since they were not conducted pursuant to a valid search warrant, or consent, or as an incident to arrest.

With respect to the first allegation, the government replies that it has made no such claim and will not make any such claim in this case. This disposes of defendant's first ground for suppressing allegedly illegally seized evidence. As to the second allegation, the government rightly points out that Burgos is without standing to move to suppress the evidence allegedly seized from his co-defendants in alleged violation of their constitutional rights.

Rule 41(e), F.R.Cr.P.^*, provides that: "A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained" on the grounds enumerated therein. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) the Court ruled: "In order to qualify as a `person aggrieved by an unlawful search and seizure', one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else." (at 261, 80 S.Ct. at 731). United States v. Liguori, 373 F.2d 304 (2d Cir. 1967). For the foregoing reasons, including failure to file the required memorandum, the motion to suppress is denied.

Motion to Inspect Grand Jury Minutes

The second motion filed by Burgos, again unsupported by memorandum, seeks first an order: 1) permitting defendant to inspect the minutes of the grand jury on which the indictment against defendant was based; and 2) directing the United States Attorney to furnish and make available to defendant a copy of the grand jury minutes.

Defendant's reason for moving for a copy of the grand jury minutes is that, "upon information and belief, * * *, no actual evidence of `illegal importation' or defendant's knowledge thereof, which are elements of the crime charged, was presented to the grand jury. Rather, the government relied upon the statutory inference that may be drawn from proof of the defendant's possession of the marihuana."³

Assuming that it is true that the government relied upon the statutory inference, the indictment will not be dismissed when there is some competent evidence to sustain the charge made by the grand jury. Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (D.C.Cir. 1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963). Burgos does not claim that there was no competent evidence before the grand jury. Consequently, the reason relied upon by Burgos for securing the grand jury minutes is insufficient as a matter of law. "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The law in this Circuit is that if the indictment is valid upon its face, and was returned by a legally constituted, unbiased grand jury, this court is not to review the sufficiency of the evidence before that grand jury. United States v. Ramsey, 315 F.2d 199 (2d Cir.), cert. denied, 375 U.S. 883, 84 S.Ct. 153, 11 L.Ed.2d 113 (1963); United States v. Calise, 217 F.Supp. 705 (S.D.N.Y.1962). The motion to produce a copy of the grand jury minutes is denied for the foregoing reasons and for the additional reason that the motion was not timely made. United States v. Pyke, 271 F. Supp. 359 (S.D.N.Y.1967); Rule 16(f), Fed.R.Cr.P.

Motion to Dismiss Indictment on Ground 21 U.S.C. § 176a is Unconstitutional

In the second motion filed by Burgos, he also seeks an order dismissing the indictment, in the alternative, on the ground that "it is predicated upon an unconstitutional statute."

In an affidavit filed by Burgos' attorney, he urges two alleged constitutional grounds upon which an order dismissing the indictment should be based. The first is as follows:

1) In order for Burgos to be charged with a violation of Title 21 U.S.C. 176 (a) the marihuana in question must have been illegally imported into the United States. Marihuana is deemed illegally imported when the person bringing it into the United States fails to register and pay the special tax required by Title 26 U.S.C. 4751 and 4753. These registration and special tax provisions which were allegedly not complied with are invalid because they unconstitutionally conflict with the Fifth Amendment privilege against self incrimination. Compliance with the registration and special tax provision would constitute a self incriminating confession to the possession of marihuana which is rendered illegal under the penal law of every state. Certainly, therefore, the failure to comply with these incriminating registration and special tax provisions constitutes a protected exercise of the Fifth Amendment privilege against self incrimination and cannot be the basis for a finding that the marihuana in question was `illegally' imported.

Defendant relies upon Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906. Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (the latter three cases were decided by the United States Supreme Court on January 29, 1968).

In Albertson, relied upon by defendants in the three subsequent cases, the Court held an order by the Attorney General of the United States requiring members of the Communist Party to register violative of the member's Fifth Amendment privilege against self incrimination, since the information obtained could be used to prosecute the registrants under federal law.

In Marchetti and Grosso, the Court upheld defendants' claim that they could not, consistently with an exercise of their Fifth Amendment privilege against self incrimination, be prosecuted for violation of federal statutes requiring gamblers to register and to pay excise and occupation taxes.

In Haynes, the Court upheld a similar claim by one convicted of possession of an unregistered firearm under 26 U.S.C. § 5851. The statute in Haynes, 26 U.S.C. § 5851, made it a crime to possess a firearm which had not been registered as required by 26 U.S.C. § 5841. The registration statute, 26 U.S.C. § 5841, requires every person possessing a firearm to register. The Court held that the elements of the offense under § 5851, possession of a firearm which had not been registered under § 5841, did not differ in any significant respect from those of the offense under § 5841, failure to register possession of a firearm. The Court then held the self incrimination claim good as a defense to a prosecution under either § 5851 or § 5841.

In short, in Marchetti, Grosso and Haynes, defendants were each charged with a crime, an essential element of which was the failure to do an act the doing of which would have required defendant to incriminate himself; such is not this case.

In the instant case, it is charged that defendants "did receive, conceal and facilitate the transportation and concealment of a quantity of marihuana * * * knowing the same to have been imported and brought into the United States contrary to law in that the importation and bringing into the United States of marihuana by any person required to register and pay the special tax...