United States v. Tsoi Kwan Sang

• Decision Date: 01 October 1969
• Docket Number: No. 26449.,26449.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. TSOI KWAN SANG.
• Court: U.S. Court of Appeals — Fifth Circuit

416 F.2d 306 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. TSOI KWAN SANG.

No. 26449.

United States Court of Appeals Fifth Circuit.

August 11, 1969.

Rehearing Denied and Rehearing Denied October 1, 1969.

COPYRIGHT MATERIAL OMITTED

Richard Matthews, New Orleans, La., court appointed, for appellant.

Louis C. LaCour, U.S. Atty., George P. Hand, Jr., Horace P. Rowley, III, Asst. U. S. Attys., New Orleans, La., for appellee.

Before BELL and GOLDBERG, Circuit Judges, and ATKINS, District Judge.

Rehearing Denied and Rehearing En Banc Denied October 1, 1969.

BELL, Circuit Judge:

The judgment of conviction contested here was entered upon a jury verdict finding the defendant guilty of fraudulently and knowingly importing narcotic drugs into the United States in violation of Title 21 U.S.C.A. § 174. The drugs in question consisted of crude as well as prepared opium.

One of the defenses asserted was insanity at the time of the commission of the offense. Contrary to the government's position, we find that the evidence was sufficient to require submission of the issue to the jury. The charge given did not comport with the requirements of Blake v. United States, 5 Cir., 1969, 407 F.2d 908, that case not having been decided at the time. Blake was made applicable to cases then on appeal and thus reversal for a new trial is dictated. See Hausmann v. United States, 5 Cir., 1969, 407 F.2d 1339; Hodges v. United States, 5 Cir., 1969, 409 F.2d 845; Theriault v. United States, 5 Cir., 1969, 409 F.2d 1313; United States v. Bryan, 5 Cir., 1969, 412 F.2d 841; United States v. Davis, 5 Cir., 1969, 411 F.2d 570; United States v. Hankins, 5 Cir., 1969, 410 F.2d 753; United States v. Lepiscopo, 5 Cir., 1969, 409 F.2d 843; United States v. Marbley, 5 Cir., 1969, 410 F.2d 294.

There are several additional assignments of error. Decision will be pretermitted as to those not likely to recur on a subsequent trial. As to the remaining assignments, two will be finally resolved. One of these is that the district court erred in denying a motion to suppress the opium seized during a search prior to arrest. We find this seizure proper as incident to a valid border search. Another, that the court committed error in denying the identity of an informer to appellant, is also without merit. Still another question, involving the sufficiency of Miranda¹ warnings, and whether the Fifth and Sixth Amendment rights under Miranda were waived, can best be determined after a full factual development in the event of a new trial.

Appellant, a Chinese seaman, was aboard the M/V Enotis, a Greek vessel which arrived at the Port of New Orleans from Japan. In the late afternoon of November 5, 1967, he boarded the Port Ship Service launch to go ashore at the town of Arabi, Louisiana. Appellant was the only Chinese coming ashore aboard this launch.

Upon arrival he walked across the docking area and through the Port Ship Service office, a distance of approximately twenty-five yards, and then proceeded across a city street another twenty-five yards to a bus stop. At that point two customs agents stopped him. They identified themselves and twice asked him what was in the package under his coat. Receiving no reply, they seized the package which he was carrying under his left arm between his overcoat and suit coat. It was immediately examined, found to contain opium, and appellant was placed under arrest. The agents acted upon information received from an informant.

Appellant urges that the evidence obtained during this warrantless search was inadmissible because of the absence of probable cause for the search. The district court relied on the border search doctrine. We agree and conclude that the action of the agents complied with the constitutional requirement of reasonableness and constituted a valid border search.

Customs officials are authorized to stop and examine any person arriving in the United States on suspicion that merchandise is concealed which is subject to duty or which cannot legally be imported into the United States. Title 19 U.S.C.A. § 482. This statute creates a class of searches exempt from the rigors of the traditional notion of probable cause. Suspicion that a person is carrying merchandise unlawfully imported into the United States is sufficient provided the Fourth Amendment requirement of reasonableness is met. Walker v. United States, 5 Cir., 1968, 404 F.2d 900; Morales v. United States, 5 Cir., 1967, 378 F.2d 187; Thomas v. United States, 5 Cir., 1967, 372 F.2d 252.

The facts and circumstances of this case establish that the search was reasonable. The agents had information from an informer that a Chinese seaman named Tsoi from the M/V Enotis would be bringing opium ashore on the afternoon of November 5. After learning that seamen from that ship were using the Port Ship Service, the agents stationed themselves outside the docking area. Appellant was the only Chinese among the group of seamen that arrived aboard the Port Ship Service launch at the time. As he walked from the docking area to the bus stop the agents observed that he was carrying a package under his coat. The search took place approximately twenty-five yards from the docking area and within a matter of minutes after appellant disembarked from the launch. These circumstances combined with the informant's tip established a basis for suspecting that appellant was bringing ashore merchandise which could not legally be imported into the United States. They also demonstrate that the requisite reasonableness existed.

The second assignment of error, that the trial court erred in sustaining the government's objections to appellant's questions seeking the identity of the informant, is likewise without merit. Appellant contends that he was entitled to examine the informant on the issue of entrapment. It was appellant's position that a person whom he believed to be the informant had induced him to bring the opium ashore. This, however, even if true, would not establish the defense of entrapment as urged. Appellant is charged with fraudulently and knowingly importing and bringing narcotic drugs into the United States. That offense occurred when appellant, aboard the M/V Enotis, crossed into United States waters with the opium in his possession. Palmero v. United States, 1 Cir., 1940, 112 F.2d 922; United States v. Morello, 2 Cir., 1957, 250 F.2d 631; United States v. Lee Foo Yung, S.D.N. Y., 1942, 46 F.Supp. 147. Appellant does not contend that the informant induced his bringing the narcotics to the United States, but only that the informant persuaded him to bring the opium ashore. He met the supposed informant only the day before.

Appellant's reliance on Portomene v. United States, 5 Cir., 1955, 221 F.2d 582, is misplaced. The narcotics conviction there was reversed because...