Petition for Writ of Certiorari — Odland v. United States

l MICBAEL RODAK, JR.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.7 4-348 '

UNITED STATES OF AMERICA,

Respondent,

os.

* DAVID JOHN ODLAND,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JoHN H. LAUERMAN

FRANKLYN M. GIMBEL

Attorneys for David John Odland

900 MGIC Plaza

270 East Kilbourn Avenue

Milwaukee, Wisconsin 53202

(414) 271-1440

OO

HAMMERBSMITH-BREITHAUPT PRINTING CORP., MILWAUKEE, WIS.

Page

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Appendix

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Opinion of the Seventh Circuit Court of Appeals,

dated August 21, 1974 .................cscscsssoscseseceeeeq D@° 12a

CITATIONS

Cases:

United States v. Doe, 472 F. 2d 982 (2nd Cir.

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United States v. Sohnen, 298 F. Supp. 51 (1969).. 4,5

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

UNITED STATES OF AMERICA,

Respondent,

vs.

DAVID JOHN ODLAND,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

DAVID JOHN ODLAND petitions for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Seventh Circuit entered on

August 21, 1974.

OPINION BELOW

The opinion of the Seventh Circuit Court of Appeals

dated August 21, 1974, is printed in the Appendix pp.

Sa-12a.

2

JURISDICTION

Jurisdiction is conferred upon this Court by 28 U.S.C..,

Section 1254.

ORDERS

Upon application of Defendant-Appellant, the United

States Court of Appeals for the Seventh Circuit, on Sep-

tember 13, 1974, stayed the issuance of the mandate of

that Court for a period of Thirty (30) days pursuant to

Rule 41(b), Federal Rules of Appellate Procedure.

Application has also been made for an extension of

time in which to file this Petition.

DATE OF JUDGMENT

Judgment was entered by the Clerk of the United

States Court of Appeals for the Seventh Circuit on

August 21, 1974.

STATUTES INVOLVED

Fourth Amendment, United States Const:tution

19 C.F.R. 1626

39 C.F.R. 61.1

19 U.S.C. 482

19 U.S.C. 1582

21 U.S.C. 952(a)

21 U.S.C. 960

39 U.S.C. 3623(d)

(Full text of statutes appears in Appendix)

3

QUESTION PRESENTED FOR REVIEW

Whether there are any legal limits to the authority

of customs officials to open an envelope in first class mail

from a foreign country to a U.S address?

STATEMENT OF THE CASE

Odland was indicted for importing 8.8 grams of

cocaine into the United States from Colombia, in viola-

tion of 21 U.S.C. 952(a) and 960. After a court trial,

he was convicted. The conviction was affirmed by the

Seventh Circuit Court of Appeals.

On or about May 1, 1973, New York customs officials

opened an envelope addressed to Patsy Klein, c/o Daniel

Schwartzman, 11990 Long Lake Drive, Wind Lake,

Wisconsin 53185, U.S.A., from Medellin, Colombia.

The envelope was found to contain 8.8 grams of a sub-

stance suspected to be cocaine. This first class envelope

was thick, red in color, and was found to contain a card-

board greeting card.

In its decision, the Seventh Circuit found the envelope

to be subject to search for the sole reason that the envelope

was entering the United States from abroad. There were

no other facts nor suspicions particular to this envelope.

The court’ itself characterized this govenmental action

as a “sweeping power to search” and denominated it as

constitutional.

REASONS FOR GRANTING THE WRIT

The United States Supreme Court has not expressed

itself on the state of the law regarding the power of

customs officials to search first class mail addressed to

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4

a United States addressee from abroad. Confusion now

exists as to whether such mail should be treated in the

same way as a person entering the couitry at its borders,

as such a person’s baggage, or as domestic first class mail.

Should such mail be entitled to a right of privacy of

the sender and/or the addressee? Does the Fourth

Amendment to the United States Constitution have ap-

plication to such persons or property? Must some stand-

ard of state of mind be achieved before such mail can

be opened? The fact of the lack of answers to the ques-

tions herein raised dramatically demonstrates the quan-

dary one finds in trying to express the state of the law.

If this Court does not give direction to United States

customs officials, they could and would be able to act

upon whim or fancy in exercising uncontrolled power.

Congress has extended enlarged authority in the area

of customs searches generally. Whether that authority

when exercised is constitutionally firm must be judicially

determined.

Various Circuits which have faced questions dealing

with customs searches have not formulated a standard

applicable to searches of mail. Suggestions have appeared

in certain decisions that mail in envelopes should enjoy

more protection from unrestricted searches than packages.

United States v. Doe, 472 F. 2d 982 (2nd Cir. 1973),

reciting 19 U.S.C. 482, and United States v. Sohnen,

298 F. Supp. 51, at page 55 (1969).

“The government’s power to search international

mail for customs purposes is not unlimited. The

Constitution at least prevents harsh and demeaning

searches on mere suspicion, and it may well prevent

the opening of letters, as opposed to packages con-

taining merchandise, without a search warrant.”

5

If the foregoing language of the District Court in the

Sohnen case is a reliable gauge of the law, then the Cir-

cuit Court for the Seventh Circuit is clearly wrong in

its decision in this case. A choice between the result of

Odland and its underlying rationale and the more re-

strictive rationale of Schnen must be made by this Court.

CONCLUSION

On the basis of the substantive issues raised herein, I

respectfully request that this Court grant the Petition.

Respectfully submitted,

JOHN H. LAUERMAN

FRANKLYN M. GIMBEL

Attorneys for David John Odland

900 MGIC Plaza

270 East Kilbourn Avenue

Milwaukee, Wisconsin 53202

la

APPENDIX

21 U.S.C. 952(a)

(a) It shall be unlawful to import into the customs

territory of the United States from any place outside

thereof (but within the United States), or to import

into the United States from any place outside thereof,

any controlled substance in schedule I or II of subchapter

I of this chapter, or any narcotic drug in schedule III,

IV, or V of subchapter I of this chapter, except that —

(1) such amounts of crude opium and coca leaves

as the Attorney General finds to be necessary to pro-

vide for medical, scientific, or other legitimate pur-

poses, and

(2) such amounts of any controlled substance in

schedule I or II or anv narcotic drug in schedule

III, IV, or V that the Attorney General finds to

be necessary to provide for the medical, scientific,

or other legitimate needs of the United States —

(A) during an emergency in which domestic

supplies of such substance or drug are found

by the Attorney General to be inadequate, or

(B) in any case in which the Attorney Gen-

eral finds that competition among domestic man-

ufacturers of the controlled substance is inade-

quate and will not be rendered adequate by the

registration of additional manufacturers under

section 823 of this title,

may be so imported under such regulations as the

Attorney General shall prescribe. No crude opium

may be so imported for the purpose of manufactur-

ing heroin or smoking opium.

21 U.S.C. 960

(a) Any person who —

(1) contrary to section 952, 953, or 957 of this

2a

title, knowingly or intentionally imports or exports

a controlled substance,

(2) contrary to section 955 of this title, knowingly

or intentionally brings or possesses on board a vessel,

aircraft, or vehicle a controlled substance, or

(3) contrary to section 959 of this title, manu-

factures or distributes a controlled substance,

shall be punished as provided in subsection (b) of

this section.

Penalties

(b) (1) In the case of a violation under subsection (a)

of this section with respect to a narcotic drug in schedule

I or II, the person committing such violation shall be

imprisoned not more than fifteen years, or fined not more

than $25,000, or both. If a sentence under this paragraph

provides for imprisonment, the sentence shall include a

special parole term of not less than three years in ad-

dition to such term of imprisonment.

(2) In the case of a violation under subsection (a)

of this section with respect to a controlled substance

other than a narcotic drug in schedule I or II, the person

committing such violation shall be imprisoned not more

than five years, or be fined not more than $15,000, or

both. If a sentence under this paragraph provides for

imprisonment, the sentence shall, in addition to such term

of imprisonment, include (A) a special paroie term of

not less than two years if such controlled substance is

in schedule I, II, 111, or (B) a special parole term of

not less than one year if such controlled substance is in

schedule IV.

Special parole term

(c) A special parole term imposed under this section

or section 962 of this title may be revoked if its terms

3a

and conditions are violated. In such circumstances the

original term of imprisonment shall be increased by the

period of the special parole term and the resulting new

term of imprisonment shall not be diminished by the

time which was spent on special parole. A person whose

special parole term has been revoked may be required

to serve all or part of the remainder of the new term

of imprisonment. The special term provided for in this

section and in section 962 of this title is in addition to,

and not in lieu of, any other parole provided for by law.

19 U.S.C. 482

“[O]fficers * * * authorized to * * * search vessels may

* * *® search any trunk or envelope, wherever found, in

which he may have a reasonable cause to suspect there

is [dutiable goods or contraband ].”

39 U.S.C. 3623(d)

(d) The Postal Service shall maintain one or more

classes of mail for the transmission of letters sealed against

inspection. The rate for each such class shall be uniform

throughout the United States, its territories, and posses-

sions. One such class shall provide for the most ex-

peditious handling and transportation afforded mail

matter by the Postal Service. No letter of such a class

of domestic origin shall be opened except under au-

thority of a search warrant authorized by law, or by an

officer or employee of the Postal Service for the sole

purpose of determining an address at which the letter

can be delivered, or pursuant to the authorization of the

addressee.

19 U.S.C. 1582

“The Secretary of the Treasury may prescribe regulations

for search of persons and baggage * * * and all persons

coming into the United States from foreign countries

shall be liable to detention and search * * * under such

regulations.”

wl gf eens Se

4a

19 C.F.R. 162.6

“All persons, baggage, and merchandise arriving in the

Customs territory of the United States from places out-

side thereof are liable to inspection and search by a

Customs officer.”

39 C.F.R. 61.1

“All mail originating outside the customs territory of

the United States is subject to customs examination, ex-

cept [certain mail addressed to diplomats, international

organizations and government officials. ]”

Sa

3n the

Gnited States Court of Appeals

For the Seventh Circuit

J VA 1 from the

} 3-21: appes :

No. 13-2124 United States Dis-

Unitep States or AMERICA, trict Court for the

Plaintiff-A ppellee, Eastern District of

4 Wisconsin.

No. 73-CR-198

Davin JoHn ObLAND, Myrox L. Gorpon,

Defendant-Appellant. | Judge.

Vv.

ARGUED JuNE 4, 1974 — Dectnen Avucust 21, 1974

Before Ciark,® Associate Justice, CumMinGs and Tone,

Circuit Judges.

Cummincs, Circuit Judge. Defendant was indicted for

importing 8.8 grams of cocaine into the United States

from Colombia, in violation of 21 U.S.C. §§$952(a) and

960. After a bench trial he was convicted and received

a two-year sentence; in addition a special parole term

of three years was imposed under 21 U.S.C. § 960.

Defendant’s first argument is that about May 1. 1973,

New York customs officials acted improperly in opening

an envelope addressed to Patsy Klein, c/o Danial

Schwartzman, 1199C Long Lake Drive, Wind Lake, Wis-

consin 53185, U.S.A. from Medellin, Colombia. The en-

velope was found to contain 8.8 grams of a substance

suspected to be cocaine. According to the record, this

inspection occurred during the routine examination of

* Associate Justice Tom C. Clark of the Supreme Court of the United

States (Retired) is sitting by designation.

ss... Aa te

6a

73-2124 2

mail parcels and envelopes arriving in the United States

from abroad. We have examined the first class envelope

in question and note that it is a thick red envelope en-

closing a cardboard greeting card.

In denying reconsideration of its earlier order refusing

to suppress evidence, the district court stated: “I think

the right of a Customs authority to inspect at random

is implicit in the way the country protects itself froin

untaxed invasions [importations]. It’s also a proper way,

in my judgment, for the Government to protect itself

from the intervention of contraband. So I find no—I

have no difficulty with the original opening of the letter

at New York.” We agree that the United States Bureau

of Customs in New York was empowered to open this

envelope as part of its continuing investigation of nar-

cotics smuggling from foreign countries into the United

States.

Defendant contends that the search was impliedly for-

bidden by 19 U.S.C. § 482. Thar stacute provides:

“CO}fficers * * * authorized to * * * search vessels

may ° * * search any trunk o1 envelope, wherever

found, in which he may have a 1easonable cause to

suspect there is [dutiable goods or contraband |.”

We need not decide what constitutes “reasonable cause

to suspect.” This statute authorizes border searches; it

also authorizes the search of trunks and envelopes

“wherever found.” It may be that when conducting

searches away from the border, customs officials can rely

only on this statute, and that the requirement of “reason-

able cause to suspect” is then a limitation on their powers.

But when searching at the border, customs officials may

also rely on other statutes. For example, 19 U.S.C. § 1582

provides:

“The Secretary of the Treasury may _ prescribe

regulations for search of persons and baggage * * *

and all persons coming into the United States from

foreign countries shall be liable to detention and

search * * * under such regulations.”

The implementing regulation is 19 CFR § 162.6, which

reads in part:

7a

3 73-2124

“All persons, baggage, and merchandise arriving in

the Customs territory of the United States from

places outside thereof are liable to inspection and

search by a Customs officer.”

International mail is subject to a similar scheme of

regulation. The statute guaranteeing confidentiality to

first class mail applies only to mail “of domestic origin.”

39 U.S.C. § 3623(d). The relevant regulation is 39 CFR

§ 61.1, which provides:

“All mail originating outside the customs territory

of the United States is subject to customs examina-

tion, except [certain mail addressed to diplomats,

international organizations and government officials. ]”

It is clear that this regulation authorized the search

involved here. The envelope was subject to search at

the border merely because it was entering the United

States from abroad; no other fact, and no suspicion

particular to this envelope, is necessary under the

regulation.

We also conclude that this sweeping power to search

is constitutional. Surprisingly, it appears that the Supreme

Court has never been required to determine the peP-

nmssible scope of searches of persons or goods entering

che tnrttad Sfates from aboard. Nor has this Court had

many occasions to consider the issue, though we have

indicated Nat border seurvhes dye different From other

searches. Beé Cnited States v. Kurfess, 426 F.2d 1017,

1020 (7th Cir. 1970); United States v. De La Cruz, 420

F.2d 1093, 1095 (7th Cir. 1970). We therefore turn to

the settled law of the Circuits which deal with border

searches repotarty-

There is substantial authority in those Cirenits stating

the power to search at international borders in_ the

same sweeping terms as the regulation. Any person or

thing coming into the United States is subject to search

by that fact alone, whether or not there be any suspicion

of illegality directed to the particular person or thing

to be searched. Klein v. United States, 472 F.2d 847, S49

(9th Cir. 1973); United States v. McDaniel, 463 F.2d

129, 132 (5th Cir. 1972); United States v. Stornini, 448

PO EL RN IN = |

8a

73-2124 4

F.2d 833, 835 (1st Cir. 1971). This rule is supported by

dicta in Supreme Court opinions:

“It would be intolerable and unreasonable if a pro-

hibition agent were authorized to stop every auto-

mobile * * *. Travelers may be so stopped in crossing

an international boundary because of national self

protection reasonably requiring one entering the

country to identify himself as entitled to come in,

and his belongings as effects which may be lawfully

brought in.” Carroll v. United States, 267 U.S. 132,

153-154.

“fT]t is clear that the [First Congress] did not regard

searches and seizures [to collect duties] as ‘unreason-

able,’ and they are not embraced within the prohibi-

tion of the [fourth] amendment.” Boyd v. United

States, 116 U.S. 616, 623.

See also Almeida-Sanchez vy. United States, 413 U.S. 266,

272.

We conclude that the Ist, 5th and 9th Cirenit cases

cited above correctly state the law of border searches,

and that mail is not exempt. Accordingly, the Government

is free to spot-check incoming international mail at the

port of entry, or to inspect all such mail, or to inspect

any such mail which attracts the inspector’s attention.

We therefore do not reach the Government’s alternative

contention that this envelope and greeting card appeared

suspicious. In holding that crossing a border is sufficient

under the Fourth Amendment to justify this search, we

of course express no view on what have been termed

extended border searches or intrusive personal searches.

See generally Note, “Border Searches and the Fourth

Amendment,” 77 Yale L.J. 1007 (1968).

We note that other courts which have considered search-

es of incoming international mail have reached similar

results, although the Government advises that no previous

case involved opening a first class letter. United States

v. Doe, 472 F.2d 982 (2d Cir. 1973); United States v.

Galvez, 465 F.2d 681 (10th Cir. 1972); United States v.

Beckley, 335 F.2d 86 (6th Cir. 1964); State v. Gallant,

saat Me. ........, 308 A.2d 274 (1973); United States v.

9a

5 73-2124

Feldman, 366 F. Supp. 356 (D. Haw. 1973) (collecting

cases).

Defendant’s next point is that the affidavits were in-

sufficient to support the search warrant for the Wind

Lake, Wisconsin, residence where the incriminating ma-

terials were found.

The first affidavit was of Special Agent Wingert of

the Bureau of Customs in Milwaukee. The affidavit stated

that for eleven years part of his duties consisted of in-

vestigating the smuggling of narcotics into the United

Staes. About May Ist, his Milwaukee office was advised

by the New York office of the Burean of Customs that

the previously discussed envelope “was found to contain

approximately 8.8 grams of suspected cocaine.” Also

about May ‘Ist, according to the affidavit, the envelope

was forwarded in a certain locked mail pouch to the

Postal Inspector in Madison, Wisconsin. Wingert ex-

amined the envelope and obtained a positive result npon

testing it for cocaine content.

The second supporting affidavit was by Lee Wittke,

a detective for the Racine County, Wisconsin, Sheriff’s

Department. Wittke reported that on May 15th he ob-

served the residence to which the envelope was addressed

and noted that its mailbox was located by the road. He

concluded by stating he knew that the envelope in ques-

tion was to be delivered to the residence on May 16th.

Based on these two affidavits, a search warrant was

issued on May 15th by a Racine County Court Commis-

sioner, requiring return of the warrant within 48 hours

thereafter and authorizing a search of the premises at

11990 Long Lake Drive on the basis of the foregoing

information. The Commissioner stated in the warrant

that he had been informed by Wingert and Wittke that in

the cottage in question “there will be located and concealed

certain things, to wit: an envelope addressed to Patsy

Klein, care of Danial Schwartzman, 11990 Long Lake

Drive, Wind Lake, Wisconsin 53185 U.S.A. containing 8.8

grams of suspected cocaine (possessed for the purpose of

evading or violating the laws of the state of Wisconsin

and contrary to section 161.41(2)(R) of the Wisconsin

statutes) * * °.”

Gp Mais

10a

73-2124 6

Since Wittke’s affidavit had stated on his own knowl-

edge that the envelope was to be delivered to “11990

Long Lake Drive” on May 16th, it was permissible for

the Commissioner’s warrant to state his understanding

that it would thereafter be “located and concealed” in

the cottage. Therefore, we cannot subscribe to defendant’s

argument that the Commissioner would have to assume

the envelope would be deposited in the roadside mailbox

rather than delivered to the door of the residence. From

the Wittke affidavit, the Commissioner was justified in

concluding that the Government contemplated a controlled,

personal delivery to the residence. Even if he thought

that the delivery was to be to the mailbox, he could

properly find probable cause to believe that the residents

would pick up their mail and carry it into the cottage.

We hold that the two affidavits contained probable cause

for the Commissioner to authorize the search of the

residence within 48 hours from the issuance of the search

warrant. United States ex rel. Beal v. Skaff, 418 F.2d

Suh th Cir. 1969); United States v. Feldman, 366 F.

Sup ” D. Haw. 1973) (collecting cases).

During their search of the Wind Lake residence, Agent

Wingert and Detective Donald Parker discovered three

opened letters (Exhibits 3, 4 and 5) in a bedroom of the

residence. Two of the letters were postmarked Medellin,

Colombia, the same postmark as on Exhibit 2, the en-

velope opened in New York; the third bore postage from

Curacao. The handwriting on all three was also similar

to the New York one.

Immediately thereafter, they recovered Exhibit 2, the

subject of the indictment, in the top drawer of a dresser

in the same bedroom. Exhibit 6, a similar envelope post-

marked Medellin, Colombia, addressed to Patsy Klein,

c/o Danial Schwartzman at the Wind Lake. residence,

was discovered with Exhibit 2. When opened, it was

found to contain 5.83 grams of cocaine with another

greeting card.

Defendant objected to the seizure of Exhibits 3, 4, 5

and 6, and their subsequent admission into evidence on

the ground that their seizure was beyond the scope of

Yla

7 | 73-2124

the search warrant. However, Exhibits 3, 4 and 5 were

discovered prior to finding Exhibit 2, the letter specifically

described in the search warrant. Exhibit 6 was found

alongside Exhibit 2 in the same room as Exhibits 3, 4

and 5. Once the item particularly described in the search

warrant is found, the search must end, but other, evidence

or contraband found in the course of a proper search

for the item particularly described may be seized. Here

all four contested exhibits appeared on their face to

have a nexus with the crime under investigation. There-

fore, they were properly seized and, when they proved

to be incriminating, admitted into evidence. Coolidge v.

New Hampshire, 403 U.S. 4438, 465 (1971) ; United States

v. Kane, 450 F.2d 77, 85 (5th Cir. 1971).

Defendant’s: final point is that he was not sufficiently

identified to sustain the conviction. The district judge

concluded from the evidence that “there is a very defini-

tive web, that envelopes Mr. Odland.” He explained his

conclusion that Odland was sufficiently identified as

follows:

“T think the coincidence of the name on Exhibit

4, being addressed to ‘Danial Schwartzman’ on the

envelope and being addressed to ‘David’ in the con-

tent, is part of a, as Mr. Bukey [the prosecutor]

very cogently argued—part of a web which suggests

that the Dabong identities and the Danial Schwartz-

man identities are but pseudonyms or ‘phony names,

re they are called in the correspondence for defen-

ant.

“The expression in Exhibit 4, saying ‘Your letter

was a true Dabong Letter,’ tends to support the

belief that this was a calculated technique to avoid

using correct names and to use pseudonyms; never-

theless, the Court has given great attention to the

fact of the question as to whether Danial Schwartz-

man and Dabong are in fact Mr. Odland. The two

principal pieces of evidence that suggest that he is,

are the fact that he did receipt for the letter ad-

dressed to Patsy Klein, and he did so by signing

‘Patsy Klein by Schwartzman.’

12a

73-2124 8

“e * * But when we add to that the ‘David’ on

the Exhibit 4 and add to that the coincidence of

David Odland being the man who received the letter

and who bears the name David, we get what I con-

sider to be a irresistibly persuasive web which has

so enveloped David Odland as to justify, in my

judgment, a finding of proof by the Government be-

yond a reasonable doubt. ;

“T have no reasonable doubt that the defendant,

David John Odland, is indeed the addressee of these

five communications, 2 through 5—2 through 6, ex-

euse me. Accordingly, the Court finds the defendant

guilty and enters a judgment of onviction.”

Our review of the evidence satisfies us that the trier

of fact could properly find the defendant was the same

person as Danial Schwartzman and “Dabong.” Since three

of the letters (Exhibits 3, 4 and 5) set out the scheme

for defendant’s importation of the cocaine in the envelopes

enclosing the two greeting cards (Exhibits 2 and 6),

sufficient evidence was presented to support the conviction.

AFFIRMED.

A true Copy:

Teste :

FOOTER EOE EEE E EE EE RHEE TEER EEE EEE EEE HEHE EEEEEEEE EERE EEEHEH EEE EE

Clerk of the United States Court of

Appeals for the Seventh Circuit.