Amicus Brief — Chin v. United States

of

l

IN THE

Supreme Court of the United States

Ocroser Term, 1978

No. 77-26

ee

EvizaBeTH Jane Youna Cain,

Petitioner,

—against—

Unrtep States oF AMERICA,

Respondent.

>

No. 77-32

Kenneto R. Cur,

Petitioner,

—against—

Unrrep States or AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

MOTION OF THE ASIAN-AMERICAN LEGAL DEFENSE

AND EDUCATION FUND FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

BensamMin Gru

Asian-American Lega] Defense

and Education Fund

43 Canal Street

New York, New York 10002

Attorney for Amicus Curiae

On the brief :

Kennetu Cuvu

Marcaret F'una

StranLtey Mark

Lisa YEE

i

TABLE OF CONTENTS

Table of Authorities

Motion for Leave to File Brief

ee ee ee ee ee

Interest of Amicus Curiae .....

REASONS FOR GRANTING THE WRIT... .

I . INTRODUCTION . . . . . . . .

II. THIS COURT SHOULD RESOLVE

THE CONFLICT AMONG CIRCUITS OVER

THE SUFFICIENCY OF A SEARCH

WARRANT AFFIDAVIT CONTAINING

FALSE STATEMENTS ...+ + «© « «

III. A SEARCH CONDUCTED UPON

THE ISSUANCE OF A WARRANT FOR

WHICH THERE IS NO PROBABLE

CAUSE IS PATENTLY ILLEGAL... .

CONCLUS I ON . . + + . . 7 . . . . .

APPENDIX . . + . . . . . . . . . .

.

ui uw ui =

-16

-Al

ii

Table of Authorities

Cases

Aguilar v. Texas, 378 U.S. 108

(1944) . . . . . . . . . . 7 7 .

Bruton v. United States,

391 0.8. 1423 (3968) <« «© © © o

Korematsu v. United States,

323 G8. 336 (2966) © 0© © 0. 6 6

Spinelli v. United States,

393 U.S. 410 (1969) ....e-.

United States v. Belculfine,

508 F.2d 58 (lst Cir. 1974) ..

United States v. Carmichael,

489 F.2d 983 (7th Cir. 1973)...

United States v. Harwood,

470 F.2d 322 (10th Cir. 1972) .

United States v. Lee, 540 F.2d

1205 (4th Cir.), cert. denied,

87 SB. Ge. S66 (hOvme 6 6 6 6 6 «

United States v. Luna, 525 F.2d 4,

(6th Cir. 1975), cert. denied,

6 8. Gh. 3608 Gipeae 66 6 6 «

United States v. Marihart,

492 F.2d 897 (8th Cir.),

cert. denied, 419 U.S. 827

eee. LS ee ee

14

ll

14

10

iii

United States v. Mendoza,

487 F.2d 309 (5th Cir. 1973)...

United States v. Morris,

477 F.2d 657 (5th Cir.),

cert. denied, 414 U.S. 852

Dn ats . sa oe 6 a A 6 wee

United States v. Pond, 523 F.2d

210 (2d Cir. 1975), cert.

denied, 423 U.S. 1058 (1976) ...

United States v. Thomas, 489 F.2d

664 (5th Cir. 1973), cert.

denied, 423 U.S. 844 (1976) ...

Statutes

SS G88. BS OGRte tGh« « 2 ce Seo AB,

10

15

eee -

1

, IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 77-26

ELIZABETH JANE YOUNG CHIN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

KENNETH R. CHIN, |

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

MOTION OF THE ASIAN-AMERICAN LEGAL DEFENSE

AND EDUCATION FUND FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Asian-American Legal Defense and Edu-

cation Fund respectfully moves, pursuant to

Rule 42 of this Court's rules, to file the

within brief amicus curiae. Counsel for

the petitioners have consented to the filing

of this brief; the Solicitor General has not

responded to our request for consent.*

The Asian-American Legal Defense and Edu-

cation Fund is a national organization of

attorneys, law students, legal workers and

concerned citizens committed to protecting

the civil rights of Asian-Americans through

litigation. The issues in this case have

broad significance for the Asian-American

community. Our major concern centers on

the racially prejudicial inferences contained

in the affidavit of the United States Secret

Service to support their search warrant appli-

cation. Furthermore, this case raises impor-

tant questions concerning the legal standard

to be applied in determining the sufficiency

of search warrant affidavits containing false

statements. Since these issues have ramifi-

cations that extend beyond the particular

case before the Court, we seek the opportu-

nity to present our views on this matter and

respectfully move for leave to file this

brief.

1

* Copies of the letters from petitioners and

the request for consent from the Solicitor

General are being lodged with the Clerk.

Respectfully submitted,

BENJAMIN GIM

Asian-American Legal Defense

and Education Fund

43 Canal Street

New York, New York 10002

Attorney for Amicus Curiae

September 22, 1977

4

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 77-26

ELIZABETH JANE YOUNG CHIN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

No. 77-32

KENNETH R. CHIN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE ASIAN-AMERICAN LEGAL DEFENSE

AND EDUCATION FUND AS AMICUS CURIAE

Interest of Amicus Curiae

The Asian-American Legal. Defense and Edu-

cation Fund is a national organization

committed to defending the civil rights of

Asian Americans through litigation and edu-

cation. A particular concern of the organi-

zation is the protection of rights guaran-

teed under the First and Fourth Amendments

which assure freedom of association and the

freedom from unlawful government intrusions.

The Asian-American Legal Defense and Educa-

tion Fund believes that this case will have

a profound effect upon the exercise of these

constitutionally protected rights by members

of the Asian-American community.

REASONS FOR GRANTING THE WRIT

I.

INTRODUCTION

The arrest of petitioners received nation-

wide attention when the media reported their

participation in an alleged conspiracy to

assassinate Emperor Hirohito of Japan during

his visit to the United States in 1975.

These arrests took place in the context of

two well-publicized attempts on President

Ford's life only one month before, and in a

climate of public concern about the security

of government officials and foreign dignitar-

ies. In particular, the United States Secret

Service had come under severe attack and

close public scrutiny for its failure to per-

form its duties effectively.

In the instant case, the false and mis-

leading statements by a Secret Service

agent ultimately led to an illegal search

of the petitioners’ home and their sub-

sequent conviction on unrelated charges

for the illegal transport of weapons

across state lines.*

The media's sensationalism in reporting

this case has had a severe impact on the

image of Asian-Americans and the political

climate in Asian-American communities.

Asian-Americans have in the past been por-

trayed in the media as the "Yellow Peril"

and a threat to national security in times

of war. When public opinion is directed

adversely against minority groups, the rule

of law becomes more vulnerable, and consti-

tutional safeguards are compromised. For

Asian-Americans, this tragic lesson was

brought close to home when Congress and the

courts upheld the internment of Japanese

Americans during World War II solely because

of their Japanese ancestry. See Korematsu

v. United States, 323 U.S. 214 (1944).

The petitioners have demonstrated their

dedication and commitment to serve the Asian-

American community and have no prior criminal

record. The Secret Service's accusations of

the petitioners’ involvement in an alleged

assassination plot stemmed from an attempt to

draw tenuous connections between the petition-

ers and "political extremists"--a connection

that ultimately was abandoned because of the

*For the purposes of this brief, the amicus

curiae adopts the statement of facts set

forth in Petitioner's Brief at 3-8.

total absence of proof. Many Asian-Americans

working in their communities come into con-

tact with other Asians of different political

persuasions. Mere association with political

activists must not be used as the basis for

subjecting Asian-Americans to unlawful gov-

ernment harassment.

II.

THIS COURT SHOULD RESOLVE THE

CONFLICT AMONG CIRCUITS OVER

THE SUFFICIENCY OF A SEARCH

WARRANT AFFIDAVIT CONTAINING

FALSE STATEMENTS.

At present, the circuit courts of appeals

are divided on the issue of whether a search

warrant is valid i* the underlying affidavit

contains misrepresentations. Four circuits

have held that a negligent material misrep-

resentation in an affidavit does not justify

the suppression of evidence. Instead, the

law enforcement officer must have been reck-

less in his misrepresentation in order for

the search warrant to be invalidated. United

States v. Carmichael, 489 F.2d 983, 987-90

(7th Cir. 1973); United States v. Lee, 540

F.2d 1205, 1208-05 (4th Cir.), cert. denied,

97 S. Ct. 255 (1976); United States v. Luna,

525 F.2d 4, 6-9 (6th Cir. 1975), cert.

dented, 96 S. Ct. 1459 (1976); United States

ihart, 492 F.2d 897, 899-500 (6th Cir.),

oer denied, 419 U.S. 827 (1974). In

tion, Sixth Circuit has ruled that

if the false statement was made with an

intent to deceive, the search warrant is

invalid, even though the misrepresentation

was not material. United States v. Luna,

Supra. The Second, Fifth and Tenth Circuits

have adopted a contrary standard and would

quash a warrant where any material misrepre-

sentation had been made. United States v.

Pond, 523 F.2d 210, 213-14 Cir. P

cert. denied, 423 U.S. 1058 (1976); United

States v. Thomas, 489 F.2d 664, 667-

(5th Cir. 1973), cert. denied, 423 U.S. 844

(1976); United States v. Harwood, 470 F.2d

322, 324-25 (10th Cir. 1972). The Second

Circuit has further held that if the false

statement was made intentionally, the

warrant should be invalidated even though

the misrepresentation was not material.

United States v. Pond, supra.

The search warrant in the instant case was

issued on the basis of two affidavits--the

"Affidavit for Search Warrant" (hereinafter

"Original Affidavit") (A-1)* and "Supplemental

Affidavit” (A-4) --submitted by Special Agent

Neal Findley of the United States Secret

Service on October 3, 1975. The Supplemental

Affidavit contained the allegation that

petitioner Elizabeth Jane Young Chin resided

at 4303 Arlington Avenue in Los Angeles,

California with Joanne Miyamoto in 1973.

Agent Findley later conceded that this state-

ment was false. In an affidavit submitted on

January 28, 1976, to petitioner Kenneth R.

Chin's lawyer, Findley stated:

it is true that Joanne Miyamoto

did not reside at that address;

however, she did reside in an

adjoining two story house at

2208-43rd Street immediately

*"A- " refers to the Appendix attached to

this brief amicus curiae.

around the corner from the one-

story residence of Ms. Youns at

4304 Arlington Avenue.

Reply Affidavit of Neal Findley,

January 28, 1976 (A-13).

With regard to the false statement, the

district court found that "the /original/

affidavit in support of the warrant is

sufficient. The alleged misstatements in

the supplemental affidavit are therefore

inconsequential." * By affirming the

district court's decision without opinion

and thereby adopting the ruling below in all

respects, the Second Circuit failed to con-

sider the materiality of or the intent with

which the false statements were made.

Agent Findley admitted to "the haste with

which the information was gathered and the

supplemental affidavit was prepared." (A-3).

The pressured atmosphere surrounding the

affiant's investigation strongly suggests

that his misstatements were made knowingly

and intentionally. The supplemental affi-

davit does not charce tie petitioners

directly with involvement in a conspiratorial

plot to assassinate the visiting Emperor.

Instead, Agent Findley piled inference upon

inference in an attempt to connect petition-

ers with individuals who were termed "politi-

cal extremists." The series of iinkages set

forth in the Supplemental Affidavit formed a

tenuous chain: petitioner resides with

Joanne Miyamoto in 1973; Miyamoto is a member

of Asian Americans for Action; Mary Kochiyama,

¥See Memorandum Decision and Order Denying

Motion to Suppress, quoted in Petitioner's

Brief at lla.

10

also a member of Asian Americans for Action,

is a contact for extremist sroups, including

the Black Panther Party and the Black Libera-

tion Army. (A-5 to A-6). These "supplemen- |

tary" statements so inflamed the magistrate

that an impartial determination of the suf-

ficiency of the original affidavit was all

but impossible. Agent Findley's misstate-

ments were based on mere suspicion and could

only have been made with reckless disregard

or with intent to deceive the reviewing

magistrate. In view of the severity of the

crime implied--conspiracy to assassinate the

Emperor of Japan--greater attention to the

reliability of the affiant's information was

required.

Tne elimination of the false statement and

the assessment of the affidavit's sufficiency

in light of the remaining allegations opens

the door to overzealous officials who would

have “everything to gain and nothing to lose

in strengthening an otherwise marginal affi-

davit by letting their intense dedication

blur the distinction between fact and fancy."

United States v. Belculfine, 508 F.2d 58,

60-63 (ist Cir. 1974). See also United

States v. Morris, 477 F. , 662 (5th

Cir.), cert, denied, 414 U.S. 852 (1973).

Such misstatements by Agent Findley were

material and intentional, and resulted in a

violation of the petitioners’ Fourth Amend-

ment rights.

IIl.

A SEARCH CONDUCTED UPON THE

ISSUANCE OF A WARRANT FOR

WHICH THERE IS NO PROBABLE CAUSE

IS PATENTLY ILLEGAL.

*

11

No probable cause existed for the issuance

of a search warrant based upon information

submitted by Agent Findley. The failure of

the district court (and, by adoption of the

lower court's opinion, the Second Circuit)

to consider the Supplemental Affidavit in

its finding of probable cause was improper.

The Supplemental Affidavit cannot be severed

from the original since they were simulta-

neously submitted by the same affiant on

the same date. Furthermore, they were read

and considered together by the magistrate

in his determination of probable cause. The

mere designation of allegations as a "Supple-

mental Affidavit" does not detach the alle-

gations therein from being read together

with the original affidavit as one continuous

whole. Paragraph 5 of the Original Affidavit

(A-3) in fact incorporates the Supplemental

Affidavit within the original.* Moreover,

severance can only result in a legal fiction

that provides no assurance that the magis-

trate, who had both affidavits before him,

was not unduly influenced by the highly

inflammatory assertions made in the Supple-

mental Affidavit. See Bruton v. United

States, 391 U.S. 123 (1568).

*Paragraph 5 of the Original Affidavit pro-

vides as follows:

5. Additional grounds to support the

issuance of a search warrant for the

above-described premises are contained

in a Supplemental Affidavit of your

deponent which is submitted herewith.

12

The allegations in the Original Affidavit

are not indicative of any violation of 18

U.S.C. 8 922(a) (6).* The mere purchase or

possession of a weapon is no inference of

false identification in violation of the

statute. United States v. Mendoza, 487 F.2d

309 (5th Cir. 1973).

* 18 U.S.C. B 922(a) (6) provides that:

It is unlawful * * *

(6) for any person in connection

with the acquisition or attempted

acquisition of any firearm or

ammunition from a licensed importer,

licensed manufacturer, licensed

dealer, or licensed collector,

knowingly to make any false or

fictitious oral or written state-

ment or to furnish or exhibit any

false, fictitious, or misrepresented

identification, intended or likely

to deceive such importer, manu-

facturer, dealer, or collector with

respect to any fact material to the

lawfulness or the sale or other

disposition of such firearm or

ammunition under the provisions

of this chapter.

13

In paragraphs 2 and 3 of the Original

Affidavit, the affiant makes no explicit

assertions of his personal observation of

Postal Service records.* He also failed

to assert the underlying circumstances

that would reveal the source of the inform-

*¥Paragraphs 2 and 3 of the Original Affi-

davit provide as follows:

2. At the time of the purchase

described in paragraph 1 above,

Copeland advised that Elizabeth

Jane Young identified herself by

means of a California drivers

license, H-3849891, which reflected

her address to be 1555 6th Avenue,

Los Angeles, California. Investi-

gation by your deponent and other

Special Agents of the United States

Secret Service which revealed that

on June ll, 1974, Elizabeth Jane

Young notified United States Postal

Authorities in Los Angeles, Calif-

ornia to forward all mail addressed

to her to 3306 92 Street, Apartment

5L, Jackson Heights, New York.

3. Further investigation by your

deponent and other Special Agents

of the United States Secret Service

which revealed that .on August 30,

1974, Elizabeth Jane Young notified

United States Postal Service offi-

cials of a change of address to

925 Union Street, Apartment 4B,

Brooklyn, New York.

14

er's information or present any objective

evidence that the unnamed informant is

credible or that his information is reliable.

Spinetti v. United States, 393 U.S. 410

(1969); Aguilar v. Texas, 378 U.S. 108

(1944). Agent Findley submitted petitioner's

notification to United States Postal Service

officials of a change of address from Los

Angeles, California to Jackson Heights, New

York on June 1l, 1974, and of a subsequent

change from Jackson Heights, New York to

Brooklyn, New York on August 30, 1974, as

evidence that petitioner continued to reside

in New York on July 29, 1975--the date of

the purchase of the firearms. Since notifi-

cation to the Postal Service is not a require-

ment but merely a convenience, it cannot be

used as proof that petitioner did not move

to California after August 30, 1974.

Affiant's statement in paragraph 4 of the

Original Affidavit* that petitioner resided

* Paragraph 4 of the Original Affidavit

provides as follows:

4. Investigation by your deponent

and other Special Agents of the

United States Secret Service which

revealed that Elizabeth Jane Young

presently resides at 925 Union Street,

Apartment 4B, Brooklyn, New York.

Such investigation included personal

observation by Special Agent John

Cunniff of the United States Secret

Service of the premises above-des-

cribed, which revealed the name

"Young" on the mailbox for Apartment

4B.

15

“presently” at 925 Union Street was not based

on observation of her physical presence, but

merely of a surname on the mailbox. The sur~

name "Young" is common to numerous individ-

uals, Asian and non-Asian alike. It is not

legally probative of petitioner's residence

at that time. Together with the information

regarding the postal records, the affiant

attempted to demonstrate that the petitioner

resided at 925 Union Street in Brooklyn on

October 3, 1975 and, by inference, on Juiy 29,

1975. A prudent person could reasonably con-

‘elude that sometime between August 30, 1974

and October 3, 1975--and specifically on

July 29, 1975--the petitioner resided in

California. Thus, the Original Affidavit

contained no reasonable basis to believe

that a crime had been committed in violation

of 18 U.S.C. 8 922(a) (6).

The Supplemental Affidavit neither alleges

the commission of a crime nor contributes

to the factual basis for the crime alleged

in the Original Affidavit. Yet, it is the

supplemental affidavit that contains the

statements connecting the petitioner by

race alone to "political extremists." Once

the petitioner was acknowledged to have

been only a neighbor of Miyamoto rather

than a co-resident, the only linkage between

the two was that of their race. The chain

of inferences then collapsed and, as dis-

cussed above, probable cause for the issuance

of the warrant became conspicuously lacking.

16

CONCLUSION

The Second Circuit failed to apply the

proper standard when it affirmed the district

court's finding of probable cause in the

issuance of the search warrant. The Govern-

ment should not have been permitted to make

prejudicial inferences based on race or

political association that have no legal

probative value, and which ultimately

colored the magistrate's determinations.

This Court should issue a writ of certiorari

to review the judgment below.

Respectfully submitted,

BENJAMIN GIM

Asian-American Legal Defense

and Education Fund

43 Canal Street

New York, New York 10002

Attorney for Amicus Curiae*

On the brief:

Kenneth Chu

Margaret Fung

Stanley Mark

Lisa Yee

September, 1977

APPENDIX

Al

APPENDIX

AFFIDAVIT OF NEAL FINDLEY

FOR SEARCH WARRANT SWORN TO

OCTOBER 3, 1975

UNITED STATES DISTRICT COURT

EASTERN as OF NEW YORK

rt eet ell el elle elle Chenkaheshanhenhenhenhahestenhatenkenhantey .4

UNITED STATES OF AMERICA

-~against- AFFIDAVIT

FOR SEARCH

PREMISES KNOWN AS APARTMENT WARRANT

4B, 925 UNION STREET, BROOKLYN,

NEW YORK, SUCH PREMISES BEING

A SIX STORY BRICK BUILDING,

SUCH BUILDING BEING POPULARLY

KNOWN AS THE MILDRED BUILDING,

betentant.

eee aaa ee eae eee a ee hehe? . 4

EASTERN DISTRICT OF NEW YORK, SS:

NEAL FINDLEY, being duly sworn, deposes

and says that he is a Special Agent of the

United States Secret Service, duly appointed

to law and acting as such.

Your deponent has reason to believe that

within the PREMISES KNOWN AS APARTMENT 4B,

925 UNION STREET, BROOKLYN, NEW YORK, SUCH

PREMISES BEING A SIX STORY BRICK BUILDING,

SUCH BUILDING BEING POPULARLY KNOWN AS THE

MILDRED BUILDING, within the Eastern Dist-

rict of New York, there is now being con-

A2

cealed a firearm, to wit, one AR-180 semi-

automatic rifle, bearing serial number

S-12585, which firearm constitutes evidence

of a violation of Title 18, United States

Code, Section 922(a) (6).

The source of your deponent's information

and the grounds for his belief are:

1. An interview by Special Agents of the

United States Secret Service of Carl Vv.

Copeland, Jr., a salesman at Coles Sporting

Goods Store, Inglewood, California, a

licensed firearms dealership, wherein he

stated that he sold the above-described

firearm, serial number S-12585, for $270 to

a person who identified herself as Elizabeth

Jane Young on July 29, 1975.

2. At the time of the purchase described

in paragraph 1 above, Copeland advised that

Elizabeth Jane Young identified herself by

means of a California drivers license,

H-3849891, which reflected her address to

be 1555 6th Avenue, Los Angeles, California.

Investigation by your deponent and other

Special Agents of the United States Secret

Service which revealed that on June 11,

1974, Elizabeth Jane Young notified United

States Postal Service authorities in Los

Angeles, California to forward all mail

addressed to her to 3306 92 Street, Apart-

ment 5L, Jackson Heights, New York.

3. Further investigation by your deponent

and other Special Agents of the United

States Secret Service which revealed that

on August 30, 1974, Elizabeth Jane Young

notified United States Postal Service

A3

officials of a change of address to 925

Union Street, Apartment 4B, Brooklyn, New

York.

4. Investigation by your deponent and

other Special Agents of the United States

Secret Service which revealed that Elizabeth

Jane Young presently resides at 925 Union

Street, Apartment 4B, Brooklyn, New York.

Such investigation included personal obser-

vation by Special Agent John Cunniff of the

United States Secret Service of the premises

above-described, which revealed the name

"Young" on the mailbox for Apartment 4B.

5. Additional grounds to support the

issuance of a search warrant for the above-

described premises are contained in a Supp-

lemental Affidavit of your deponent which

is submitted herewith.

WHEREFORE, your deponent respectfully

requests that a search warrant be issued

authorizing your deponent or any Special

Agents of the United States Secret Service

to search the PREMISES KNOWN AS APARTMENT

4B, 925 UNION STREET, BROOKLYN, NEW YORK,

SUCH PREMISES BEING A SIX STORY BRICK

BUILDING, SUCH BUILDING BEING POPULARLY

KNOWN AS THE MILDRED BUILDING and to seize

the above-described firearm and any other

evidence relevant thereto,

s/ Neal Findley

os Neal Findley, U.S.S.S.

Sworn to before me this

3rd day of October 1975

VINCENT i. CAPOGGIO A TRUE COPY

A4

SUPPLEMENTAL AFFIDAVIT OF NEAL

FINDLEY FOR SEARCH WARRANT, SWORN

TO OCTOBER 3, 1975

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

-against-

SUPPLE-

PREMISES KNOWN AS APARTMENT MENTAL

4B, 925 UNION STREET, BROOKLYN, AFFIDAVIT

NEW YORK, SUCH PREMISES BEING

A SIX STORY BRICK BUILDING,

SUCH BUILDING BEING POPULARLY

KNOWN AS THE MILDRED BUILDING,

Defendant.

ae ee er Kr er er er er eee ae eae ee ee we Ke Kee eS hehehe? . 4

EASTERN DISTRICT OF NEW YORK, SS:

NEAL FINDLEY, being duly sworn, deposes

and says that he is a Special Agent of the

United States Secret Service, duly appointed

according to law and acting as such.

This Supplemental Affidavit is submitted

in connection with and in support of an

application for a search warrant for the

above-described premises. A search warrant

is sought in connection with an investiga-

tion surrounding the official visit of

Emperor Hirohito of Japan to the United

States and, more particularly, to the City

of New York which is currently scheduled to

take place between the 4th day of October

A5

1975 and the 7th day of October 1975. The

additional grounds to support the issuance

of the search warrant are as follows:

1. Investigation by Special Agents of

the United States Secret Service which

revealed that during the year 1973 Elizabeth

Jane Young resided at 4303 Arlington Avenue,

Los Angeles, California with one Joanne

Miyamoto. This information was derived by

an examination of the records of the United

States Postal Service and by an independent

investigation of the Federal Bureau of In-

vestigation.

2. [material deleted] Joanne Miyamoto

and Mary Kochiyama have been attempting to

gain access to functions that would be

attended by Emperor Hirohito.

3. Investigation by Special Agent George

Hofmann of the United States Secret Service

on the morning of October 3, 1975 conducted

at Apartment 3B, 545 West 126 Street, Man-

hattan, which revealed that the above-named

Mary Kochiyama currently resides at that

address. This investigation included an

interview by Special Agent Hofmann of the

occupants of Apartment 3B, 545 West 126

Street, Manhattan, who confirmed the fact

that Mary Kochiyama resided at the apart-

ment, but who advised Special Agent Hofmann

that they were unable to provide the Secret

Service with any information concerning her

present whereabouts.

4. Information supplied to the United

States Secret Service by the Federal Bureau

of Investigation to the effect that an in-

A6

vestigation has disclosed that Joanne

Miyamoto and Mary Kochiyama are currently

members of the Asian Americans for Action,

a Japanese led organization, which organi-

zation has in the past demonstrated against

the United States-Japan Security Treaty.

5. Federal Bureau of Investigation Intel-

ligence information provided to your depo-

nent and the United States Secret Service

describes Mary Kochiyama as a contact for

various extremist groups in New York City,

including the Black Panther Party and the

Black Liberation Army.

It is the opinion of the undersigned and

of the United States Secret Service that

the existence of the firearm described in

your deponent's affidavit in support of

this search warrant and the involvement of

the above-mentioned individuals poses a

serious threat to the personal safety of

the Emperor of Japan and others during the

official visit to the United States.

Accordingly, pursuant to Titlel18 of the

United States Code, Section 2056 and the

authorization to protect the person of a

visiting head of a foreign government as

embodied therein, the foregoing information

is provided in support of the application of

the United States for a search warrant for

the above-described premises.

WHEREFORE, your deponent respectfully

requests that a search warrant be issued

authorizing your deponent or any Special

Agents of the United States Secret Service

to search the PREMISES KNOWN AS APARTMENT

4B, 925 UNION STREET, BROOKLYN, NEW YORK,

A7

SUCH PREMISES BEING A SIX STORY BRICK

BUILDING, SUCH BUILDING BEING POPULARLY

KNOWN AS THE MILDRED BUILDING and to seize

the above-described firearm and any other

evidence relevant thereto.

_/s/ Neal Findley

S/A Neal Findley, U.S.S.S.

Sworn to before me this

3rd day of October 1975

VINCENT A. CAPOGGIO

United States Magistrate

Eastern District of New York

U.S.M. E.D.N.Y.

A8

REPLY AFFIDAVIT OF NEAL FINDLEY,

SWORN TO JANUARY 28, 1976

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

-against- AFFIDAVIT

KENNETH RAYMOND CHIN and 75 CR 851

ELIZABETH JANE YOUNG,

Defendants.

STATE OF NEW YORK ) ,

COUNTY OF KINGS’ )*%5:?

NEAL FINDLEY, being duly sworn, deposes

and says:

1. The affidavit submitted by William

Liebovitz, the attorney for the defendant

Kenneth Raymond Chin, alleges that I had

"ample opportunity", prior to the issuance

of a warrant to search the defendant's

premises, "to learn and know in the ordi-

nary and prudent exercise of [any] duty"

that the defendant Elizabeth Jane Young

did not pose any threat to the safety of

the Emperor of Japan during his visit to

New York City which commenced on October 4,

2973S Ghee. @. Bd

2. Specifically, Mr. Liebovitz alleges

that we failed improperly to conduct "any

surveillance of the defendants personally

A9

to determine the truth or falsity of the

claim made in [my] affidavit that the

defendants were connected with a threat

to the Emperor's or others’ personal

safety." What he claims should have been

undertaken was a twenty four hour surveill-

ance, and that “the slightest effort by the

defendants to go anywhere or do anything

that appeared, however remotely, to be

preparatory to making any physical contact

with or otherwise causing any threat to the

Japanese Emperor would instantaneously have

been followed inch by inch through "“appro-

priate surveillance” (Aff. pp. 2-3).

3. Mr. Leibovitz concludes this aspect of

his attack on my credibility by alleging

that (Aff. p. 4):

“what would have been revealed

to Agent Findley by any good faith,

direct surveillance of the defend-

ants is exemplified by the provable

events of October 4, 1975, on the

morning of their arrest. While

their residence was being searched

Ms. Young was attending a weekly

four-hour class in plumbing at

Local Ne. 1 of the Plumber's Union

in Brooklyn, New York where she has

been an indentured trainee of the

Union. Such facts were and are

readily verifiable by the govern-

ment. At the same time defendant

Chin was doing the weekly house-

hold shopping and was arrested upon

returning to the residence carrying

large bundles of groceries. Such

were the defendants' activities on

the first day of the Japanese

A10

Emperor's arrival in New York City.

Obviously, they were not engaged

in threatening the safety of His

Excellency, as Agent Findley had

alleged without benefit of any

previous direct surveillance of

these defendants. His failure

to conduct any such surveillance

before swearing to an "opinion"

of the serious threat allegedly

posed by them was a reckless dis-

regard of the truth.”

4. The allegations are based upon an

obvious lack of knowledge of the time

pressure under which we were operating and

the practical problems posed by direct

surveillance. The information which formed

the basis of my supplemental affidavit was

relayed by the Federal Bureau of Investiga-

tion to the Secret Service sometime on

October 1, 1975, and was received by tele-

type by the Secret Service in New York at

11:15 A.M. on October 2, 1975. The Emperor

of Japan was scheduled to arrive in New

York City on October 4, 1975 and to attend

a football game at Shea Stadium on October

5, 1975. Accordingly, if the warrant was

to be executed during daylight hours, prior

to the arrival of the Emperor, it had to

be obtained sometime on October 3, 1975.

5. We therefore had no more than twenty

four hours to act. This provided us with

little enough time to check out certain

basic facts, much less conduct an extensive

surveillance. And, more significantly, it

has been our experience that physical sur-

veillance is notoriously unreliable, par-

All

in a large metropolitan area, where the risk

of losing the suspect on a crowded street,

highway, or subway is not insignificant.

‘Of course, needless to say, these defendants

were not the only persons who the Secret

Service was concerned about with regard to

the safety of the Emperor. At least two

dozen other persons were potential threats

who had to be investigated.

6. Moreover, the fact that "the provable

events" on October 4, 1975, the morning of

their arrest would have demonstrated that

the defendants were not "engaged in threat-

ening the safety of His Excellency" hardly

proves anything. On November 21, 1963, for

example, “the provable events", which would

have been disclosed by a physical surveill-

ance of Lee Harvey oswaiée were that he

spent the day at the home of his wife and

children, that he played on the lawn with

his daughter Junie, that he ate dinner with

his family at 6:30 P.M., and went to bed at

11:30 P.M. (Manchester, The Death of a

President, 102-105 [1967]). Very little

would have been disclosed to indicate that

he would attempt to assassinate the Presi-

dent of the United States the next day. On

the other hand, a search of those premises

would have likely resulted in the seizure

of the murder weapon.

7. Several other claims made by Mr. Leib-

ovitz relating to the good faith of the

Secret Service merit a response:

a. First, at no time to my knowledge

did any member of the Secret Service alert

the news media to the fact that a search

Al2

would take place. Such action would have

been contrary to our policy. And, indeed,

such prior disclosure could have been

embarrassing had the search proved fruit-

less. We did, however, alert the New York

City Police Department to the fact that the

search would be made. This is done so that

they can properly respond to calls from

neighbors regarding what may be a forcible

entry into an apartment. It is conceivable

that the leak emanated from that source.

b. Second, this case was transferred

to the Alcohol, Tobacco & Firearms Bureau

of the Treasury Department because the

evidence disclosed by the search established

a clear violation of the laws regulating

firearms (a matter within its jurisdiction).

Although a veritable arsenal of weapons was

uncovered, including the weapon which was

the subject of the search warrant,* there

was no direct evidence to charge the defend-

ants with a conspiracy to assassinate the

Emperor of Japan. While it is true that the

defendants were released from custody before

the Emperor's departure from the United

States, they were not released until after

his departure from New York and, of course,

after the seizure of weapons. By this time

there was reason to believe that whatever

threat they may have posed was significantly

diminished.

c. Third, the defendants attack the

truthfulness of Paragraph "1" of my supple-

* Annexed hereto as Exhibit A are photo-

graphs of the weapons and related items

seized.

Al3

mental affidavit which alleges: "Investi-

gation by Special Agents of the United

States Secret Service which revealed that

during the year 1973 Elizabeth Jane Young

resided at 4303 Arlington Avenue, Los

Angeles, California with one Joanne Miyamoto.

The defendants claim that Joanne Miyamoto

did not reside at 4303 Arlington Avenue, Los

Angeles, California, but at "a separate

residence bearing no resemblance to the

address of Ms. Young." This allegation is

only partially accurate. First, let me say,

we have been advised by the Federal Bureau

of Investigation that the correct address

on Arlington Avenue in which the defendant

Young resided was 4304 rather than 4303

Arlington Avenue and that the discrepancy

was due to a typographical error in the

transmission of the information. Second,

it is true that Joanne Miyamoto did not

reside at that address; however, she did

reside in an adjoining two story house at

2208-43rd Street immediately around the

corner from the one-story residence of Ms.

Young at 4304 Arlington Avenue. This dis-

crepancy in the affidavit is, I believe,

attributable to the haste with which the

information was gathered and the supple-

mental affidavit was prepared.

fs/ Neal Findley

Sworn to before me

this 28th day of January, 1976.

[Sf Olga S. Morgan

Notary Public of New York

No. [illegible]

Qualified in Kings County

Commission Expires March 30, 1977