Brief for the United States in Opposition — Blum v. United States

~ Concitision

[INDEX .

‘Opinion below -.° . *------- etsy

Jurisdiction _ - +See

(Juestions presented :

_ Statute involved. ae

Statement. i)

Argument’...

CLEATLONS

af ‘4505 “

Boud v. U mited States, VG USS. 616.

_ Carroll v. ro nited Stafes, 267 Uss 132. ;

— Ram*rez \ United States, 263 ¥. od 385_;

> Romero v. U nited States, 318 F. 2d 530, Fewes

orari det ed, 375 U.S. 946_--- 2

E'nited States vy. Davis, 272 I. 2d, ‘Jag a

a sag pal and statutes: oe *

U.S. Constitution: Fourth RR EE Mire

ca aes Act of 1866, 14 Stat. 178_-

3 Stat: 232. .-_. . Pie hist e arate on

IS. USC. 545-- pcb otiGeleusauee.

19 U.S.C. 482: - eee ee _ *

cobhoer L59A(b)_- Se te a

28 U.S.C.°1732. - \

io .

‘Annual Report to thie Commissioner, Bureau of

Customs, Treasury Department (1963) -

3 Oxiord New English Dictionary (1897)... +

“ (a)

©

a

on fhe Sopreme ¢ ourt of the united Sites

“OctourR TERM. 1963 ——

-— —_

No. LOO

Max Biv, PETITIOSER

2 ie t's

U XITED STATES OF AMERICA °

— —_—— a!

ao) Ph WTION FOR ON WRIT OF CERTIOR 1K! T0 THE UNITED

STATES COLT Of PPE iLs FOR THE SEC ox Dp CIRCUIT

.

,

.

‘ «BRIEF FOR THE UNITED STATES IN senate

opiNton BELOW

The epinien of the Court. ot ay ye “ats ¢ Pet. cae rm

ia reported at 329 F. 2d 49,

JURISDICTION ~~

The judgment of the court se appeals was ene

tered on March 10. 164 ¢ ( Pet. ). Petitions for re-

¢

hearing and for rehearing eH rex were -dehied on

April 8, 1964 (Pet. S31), The petition for a writ

of certiorar? Was filed on May * “1964. The jurisdic

tion of this Court Is invoke under 28 U.S.C. 125464).

QUESTIONS PRESENTED

a

1. Whether customs agents it New York could —

search, two packages en route hy air oe spress f roots

{1)°-

2

Caitfornia to a Brooklyn consignee if they’ had rea

sonable ‘catise to suspect that the packages contained.

smuggled goods.

9 Whether a certificate of the Swiss Consul! was

properly admitted inte evidence. .

Whether the evidence was suffierent to sustall

the verdict, . . |

STATUTE INVOLVED

Section 482 of Tithe 19, U.S.C; provides :

Any of the officers or persons authorized to

board or search vessels may stop, search, and

examine, as well without gis witht their respec-

tive districts, any vehicle, beast, oF person, oll

which or whom he or they shall suspect there is

merchandise which is subject to duty, or shall

have been introduced inte the United States im

any manner contrary. to law, whether by the per-

sob in POSSESSION or charge, ‘or by, Ih. or tipon

such vehic ‘Je or beast, or otherwise, and to seare ‘h

any trunk oF envelope, wherevex found, in which

he may have a reasonable cause to suspect there

is merchandise which ‘was imported contrary’ te

: aw: and if auy sueh officer or other person se

‘authorized shall find any merehandise on or about

any such vehicle, beast, or person, oF ib any such

trunk er envelope, Which he shail -have reasonable

E ” pause te believe ts subject to duty, or to have

heen - — introduced into the United

States, secu WW the person in possession of

charge. © is in, or upen such vehicle, beast, 0

ole e sliatl seize and secure the same "y

_ trial. , :

, ; STATEMENT

After a jury trial in the United States District

Court for the Eastern District of New York, peti

: “3

tioner was convicted of fac ‘iitating tlie irnnimport tation

of smuggled merchandise and receiving sue jy mer:

chandise in violation ef 18 U.S.C. 545. He whs

given concurrent sentences of 18 months imprison

anent ‘on each count. The court of appeals affirmed

the conyietions® The evidentée may be summarized

as foflows: | ,

© On July ‘1, 1960, a Mexican youth brought it

package into the Railway Express office in San Pego,

California, for shipment o petitioner in (brooklyn,

New York. The’ vouth gave-the mame “Stuisee? as

consignor, With an address in Chula Vista, California,

a town eight miles from the Mexican border | fy oe SS

99-30, 32, 527°- Phe express agent, who could not

learn the contents of the package from the Mexieati

youth, attempted to locate the consignor (Tr. 51- wabés ) «

He found that the telephone company had no Lstime

for the address in’ Chita Vista (Tr. 382)° The ex-

press ‘agent informed a customs agent and the pack

age Was then dispa {tehed to New York (Tr. 32-34).

The Mexican vouth had’ told the express agent that

he would return the next day. Le didi se, brining

another package consigned from “Sluiseo™ to peth

tioner: the contents of which were deseribed as “cut

lery (Tr. 35, 40). The customs ans ni had been

Waiting for the vouth to appear, but left for coffee

| just before lie came (Tr. 36), .When ve returned and

——_—__ +

' Petitioner was convicted ‘on two of- four counts in the five-

count madietment which were submitted to the jurv. He was

acquitted on the concealment and purchase counts.

“Tr refers to the trangeript of trial, apd “R.” fefers to

ethe government's appendix im the court af appeals. both of

whiel we are lodging with the Clerk of this Court

.

*

4° 5

found the package, the agent applied a radioactivity

detection device to its exterior (Tr. 43,°48). The

devieg showed a “quite high” positive reaction, which

—indieated that the package céntained some type of

radioactive material—which might have beenthat used

for tumineus dials on watches (Tr. 48-49). The

paekage was then flown to New York.

Two days later in New York customs agents went

to the airport. again tested the second package for

radioactivity, and again found “yeryv positive re-

action’? (Tr. 134-135). That pae re we Was then ‘taken

.

to a Railway Express delivery depot in: Brooklyn,

where the, first package had already arrived. © Both

were again exdmiied for radioactivity, and they’ reg-

istered “very positive’ reactions (Tr. 14 5). The pack-

ages were then opencd in the presence of a Railway bx- -

“press sec urity agent and the customs agents, and were

fou td to contain a large number of Swiss wate thes and

watch movements (Pr. 67, 137-139). .

The next day, after the watches had-been re pac ‘ked,

a Railway Express driver and a disguised customs

agent delivered the cartons to petitioner, who ac-

_ cepted them and paid the charges (Tr. 112-115).

The disguised customs: agent—who had gone before

United States Commissioner and obtained a- search

warrant—then returned to petitioners residence «in

the company of other agents. The men showed their

credentials and’ the warrant and were admitted by

petitioner (Tr. 162). They told petitioner they were

interested in. the two packages recently delivered.

He pointed them out, stating that they were net his

- A 7)

but belonged te the consignor (Tr 163). When

asked what. was - the packages, petitioner first said,

“LT guess vutierys”” but he ajipes ived extremely nerv-

ous’? when he was asked to cpén the packages, and

he then said, “No, no, they misht be watches” (Tr.

163). The packag res were seized, and potithon cr was

arreste “de

U ae “a trade a¢rcement i effect nee ekeat Switzer-_

dand and the United States; all Swiss watches imi

ported ite the U hited States are required te bear aw

distinetive threeclettey symbol which is issued -by the

“Swiss eovermment to each “importer (CR. d4a-36a; Tr.

153-155, BOG™ BOO, - B2I-BBLD. When the ‘contents of

the packages were examined. before delivery: ty peti-

tioner, it Was determined that the watches bore ne

such importer’s svinbol (Pr 156). More detailed: ex-

winination disclosed that three of the 2.149 watches

bore a svinbel whieh had been eancelied im 1960 (2%

Pe dined Pe deed

Phdmoia). :

At the triak the government mt odneed certificates

of COilectors of Customs at ports of entry other cee

New York stating that they hadeno recgrd of lega

Hnportation of these watches CR. ‘Bia-Sla: Tr.

Je De The governmcnt alse antroduced a cordificate

Frome thee Swiss’ Consul General stating that le had

searetied: his records and found nething pertamimg to

the impartation of these unmarked Swiss watches CR.

59a-fGa: Tr. 387). The Deputy Collector of Customs

No certiticate was led for New York because the volume

of vecords to be examined was so large, as to render it un-

fea~ible.

———

6

of the Port of New York textified regarding the prac-

tices and regulations relating to the importation of ¢

Swiss watehes (Tr. 228-345). He explained that 1m

inplementing of the trade agreement :with switzer-

jand, the Commissioner of Customs requires that, par-

ticulars errs OS arrival in the Uuited States of

any unmarked Swiss Watches be sent in writimg |

‘fo the Swiss Consul General in New York CR. 53a-

daa: Tr. 334, 387). “He also testéfied that -his office

hat no record ‘off importation ‘of: unmarked watehes

by “petitioner nor ‘of anv acknowledgemént by the

Swiss Consul General of notification pertaining to the

watches involved in this case | Tr. 340-541).

Petitioner, who had been a watch deale® tn 160)

(Tr. 417). testified that he.had merels accepted the

packages for oné otuis, whe told him that they were

arriving Cad would contain cutlery (Tr. $26).. He

had had several conversations with Sluis, Whe was a

“traveling man’ and had te atelress in. New York

where he could. receive the packages bout had never

actually dene busine xx with him (Tr. 424-427). Petr

tioner testified that he did not know that the packages

eontammed watehes, but had mentioned watches to the

agents hecatse the agents had told hin that the sewheh

warrant specified watches (Tr. 419%. 427}. Petitioner

also introduced evidence that quinn tithes of erzed iin

‘marked Swiss Watches— niade by a differs ered, ppacerhl

facturer——had beet ete Tinie! and sold te the meéneral

public ion the Collector of Cirsteotis iY arts) A

customs agent testified: for the eovernment. however,

that me watches of the sert invelved in tits case hati

/ ; 7

been ‘sold in thid manner from 1957 to 1960 (Tr.

397-399 ). . |

sale ,

ARGUMENT +

The search of the pitkages ‘en route to their

Pec in. Brooklyn was based on the customs

‘agents’ ree asonable belief that they contained smuggled

goods. The power to open and, examine packeges in

transit under such eireumstances is conferred by 19

U.S.C. 482, which anchor ifs the search of “any trunk

or envelope, ‘w' sever found” if the agent has

“reasonable cause to suspect” ‘that such “trunk

envelope” contains smuggled met rchandise.” It would

require an excessively literal and self-defeating con-—

struction of the statute to exclude from its scope

packages such as those in this vase merely because

they might not be “popularly considered as “trunks”?

or Cenvelopes.” lt mist diave been Congress’ liten-

tien Unb PNbit-—when this prevision Was enacted a

part of the Anti- Smuggling Act (14 Stat. 178)—to

include wrapped packages in trangit along with the

———

The cistinetion bet ween sittin of packages in transit -

Sdueh care believed to contain smuggle? mere ‘handise and

arches of a dwelling for smuggled goods cates back to 1815,

wt hen Congres. (5 stat. 232) made i clear that

’

* * * 2 styl]

the necessit\ of a sence) warrant

in home be cone idered as apphenble te any 7%"

vetucle, of whatever forin or construction. emploved

as a medium of trang vertation, or te packages on ’

ceeV oeane taal aoe 4 wuimals, or carried by mat on Toot.

Compare 19 ULS.C. 4820 with 1 Us.C. sib), which ex

plieily requices a warrant for the search ofa “dwelling house.”

Ct Boyd \s lnited States, 116 UUs. 616, 6§2375-H24 : (arroll WV.

Vnited States, 267 VS. V2, Lol 1a, 14. ;

. 5

ia

containers. specifically enumerated. ° Consequently,

the agents’ authorité te. open and examine the pack-

-

e

e

ages under 19 U.S.C. 482, " as well as under the

Fourth Amendment, depended on whether.-they had

.ryasonable cause” at the time to suspect that smmue-

cled goods were Contained therein, ;

- The details coneerning the grounds for the agents”

; suspicions were not fully developed at the, trial

-hecause of the untimely nature of the “motion to

SUPDTess. Although the search occurred on July 17.

1960, and the results of that search were” explicitls

set forth in the affidav.t attached té the secirch war-

rant which was served on petitioner, on the following

day (Tr. 78, 431), no motion to suppress was made unt!

Noveniber: 14, 1962, which .was the second day of the:

trial (Tr, 70). At this tine, the California withcases

had completed their testimony and had been exetisec

. °Tudeed, there is etery reason to believe that the word

“envelope” was used 11-1866 not ay i would popularly be used

today—i«.. to Mean the cover a letter —but for the primasy

definition then given the word.” See. eg. 3 Oxford New benglish

d dictionary (1897), p. 220. where ir is defined as “jt }hat in whie

anything is enveloped: a wrapper, integament, covering.”

‘The court of appeal- sustained the sarecii on the ‘ground

that Railway Express had retained the right, by reason of it

tariff provisions, to open misdeclared mér -handise (Pet. 28)

This - tariff provision. applies only to surface transportation.

however. and not to air shipments suchas those ‘imvelved in

this case. Consequently, we do not reiy op this ground ©

sustain the lawfulnéss of the search. ; .

Tt should alse, be noted that 19 TuS.C. 452 is tot ltited Te

searches at the immediate border whore the merchandise enters.

The statute expressly provides’ for examin: itioh OT rungs and

envelopes “wherever found.” and this provision has been given

full effect. See Jinited States \. Darin 2iz F. wd iat. $s:

i(C.A. 7): Ramirez Vv. / nited., Nhitfen, 204 Koved oso +1@L AL 8

.

of *.

9g

(Tr. _ 61). However, the district court denied the

invtion on its merits: (Tr. 90), and we submit: that

the record supports that result. The first package

was brought in by a Mexican youth who’ could not

deseribe its contents (Tr. 31). The consignor’s given

address was only eight miles from the Mexican border

(Pr. 52), and the copsignor could not be located 1

the tele phone direc tony under the name farnished "e

the Mexican (Tr. 32 On the foliow! ing day the same,

Mexican arrived a another package addressed to

petitioner, and this one was marked ventlery’” (Tr.

36, 40). The applieation® of an eleetrome device te

the exterior of the Second package showed the pres-

ence of radicactivity (Tr. 43, 4749). which was

obviously tneonsistent with the deck ration of the

* package's conterit»yg Radioactivity Was agaidp noted

in bo th packages in New York. Tr view of ihe fact

that radium is used on watel: dials and “that the

smuggling of Swiss watch moverelts Is (next te

narcotics > a major law enforceneiut problem: for Cias-

toms, there was good reason te believe that the pack-

age marked “cutlery.” -as Well as the undeserised -

COM palikon package. contained smuggled goods—miost °

likely avaty ‘hes or Watch movements” Under. the se.

circumstances, the agents were ehnpowe ag to oper

. packages while they were on transit. | See Rows ro”

. United States, SIS KF. 2d 530 (CLA. oF, certiorari

inated, ¢ e"5 US. 946, in which a similar cae Pa

of baggage checked at a railway station Was, sustained,

under 19 U.S.C, 482."

—_— - -—— -

"See ‘Treasury Departnient. Hurean of Custody, Agenes

service. bana / Tee port fs the 4 yess OWE? Jims}. ]’- bi

19 F

Petitioner contends, for. reasons not stated at

trial,” that the certificate of the Swiss Consul General

concerning the absence of any records pertaining to

the seized watches was inadmissible. Petitioner's

present argument is that.the document ‘was not com.”

petent in the-absence of proof that the Swiss officer

had any duty to keep the records in question (Pet.

It). The record proves that this contention is with- -

out merit. The export of watches 1s ‘a major concen

of Switzeriand, and it ix’ the ‘subject of a trade agree-

ment with the United States. Re Deputy Collector

of C ustoms”at the Port of New York.test. fied that the

consul general ts ‘notified in ail instances in which

unmarked Swiss: watches are imported sd Tr. 337).

Hence it follows that ree rds on this elite ath, maifi-

tained by the agencies concerne «d, with enforcing the

inte ‘rnatignal trade agreement. and the Swiss Consul

General is directly invelyed in such enforcement. In

yverit, os the court of appeals observed, it seems

clear that the records underlying the, certificate were

any

kept in the re ‘gidar course of the consulates business,

so that they would have been admissible in evidence

under 28 ULS.C. 17232 ( Pet. 27).

Dikiheee alse, maintains that the authentic ations

“attathed to the certificate gave: it excessive weight in

the eves of fhe jury beeause of their “polite dipio-

matic mnguage™ (Pet. 17-19 . These authentications ,

were needed, however, to meet one of petitioner's -

* At trial. de inti counsel objec ‘a to the + document on the

“vround that it was “notgproperly authentic ated: thar a rule of

criminal procedure by nari to clocuments of a foreign

‘country: and tha: the right of confronta ion was denied (Tr.

«pop Nt)

’

,

Te eters

| principal objections at the trial—ie., that the certiti-

Veate Was insufficiently authenticated (Tr. 383), -M.

petitioner ‘Was concerned with their prejudicial inmmicl

he oouid have requested a eautiont art instruction or

asked that the allegedly offensive ‘portion of the ex-

hibit be masked... He did neither,

8. The evidence summarized in the Statement, pp. .

3-1, supra, Was manifestly sufficient to sustain peti-

. . 4 . .

had been smuggled wto the country.

tioner’s convictions for facilitating the Aansportatson

of smuggled aerchandise and receiving the same.

The | jury could have -concinded from the enreune-

stances of th: pate kages’ delivery, the wuniarked form

of the: watches, and the jack of any recomd’ supporting

the pros: ibility: of lawful Mupertations that the wate ‘hes

had been imported contrary to law. ww could, alse

have cone ‘luded: from. testimony concerning je titiene bes }

conduct at the tie of his arrest t and from his prosses-

sion of the miere handise that he knew that the watehes

, : CONCLUSION /

For the reasons stated it is respectfully subinetted

that the-petition for a writfof certiorar: slewild be

denied. :

ARCHIBALD Cox,

Hexen J. Mier dr.

Assistant Attorney Ge nrret

Bestuict Rosixenne,

JEROME NELSON:

Attoriie ys.

JUNE 1964. : ; °

+ OS COVRMmENHT FE mS OFFETE teee