Opposition Brief — Henritze v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-913

WALTER M. HENRITZE, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that (1) the venue of his prosecu-

tion was improper, (2) his motion to suppress should

have been granted, and (3) there was insufficient evidence

to sustain his convictions.

Following a jury trial in the United States District

Court for the Northern District of Georgia, petitioner

was convicted of importation of hashish, in violation of

21 U.S.C. 952(a), and conspiring to import, distribute,

and possess hashish, in violation of 18 U.S.C. 371.!

He was sentenced to concurrent terms of two years’

imprisonment and two years’ special parole. The court

of appeals affirmed (Pet. App. A) and denied a petition

for rehearing en banc (Pet. App. B).

iThe court granted petitioner's motion for a directed verdict of

acquittal on the charge of possession of hashish with intent to distrib-

ute, in violation of 21 U.S.C. 841(a)(1) (Tr. 199).

(1)

2

1. The evidence at trial established that on August 5,

1974, petitioner, an attorney in Atlanta, Georgia, told

Ann Hester and Joyce Weldy, legal secretaries with whom

he was acquainted, that he was expecting a shipment of

a large quantity of “hash” from Amsterdam within the

next week (Tr. 71-73, 83, 86-87). Two or three days

later, petitioner also told another secretary, Teresa Moore,

that he would be receiving a pound of “hash” from

Amsterdam and asked that she let him know if any of her

friends needed any of it (Tr. 95-96).

At about the same time, on August 8, 1974, Frank

Cuccaro, a mail specialist with the United States Customs

Service in New York City, opened a package from the

Netherlands addressed to June Llewellyn in Atlanta,

Georgia, pursuant to instructions to open all parcels

(with limited exceptions) coming from certain countries.

In the package, he discovered two slabs of hashish,

weighing about a pound, sandwiched between layers of

candy in a box of chocolates. After testing and recording

the contents, Cuccaro rewrapped the package and mailed

it to a postal inspector in Atlanta (Tr. 59-66, 69, 104).

On September 12, 1974, the package was reopened

by federal authorities in Atlanta, and material from the

slab again tested positively for hashish (Tr. 149). The

same day a warrant was obtained from a federal

magistrate, authorizing a search for the box of chocolates

containing the hashish at the location to which the box

was addressed, 2311 Bank of Georgia Building, Atlanta,

Georgia. The search warrant stated that it must be

executed between the hours of 8:00 a.m. and 12 noon

on September 13, 1974, at that address (Pet. App. D).?

2The affidavit stated that the “box is scheduled for controlled

delivery to 2311 Bank of Georgia Bldg., Atlanta, Ga., on 9/13/74,

at 9:45 a.m.” Petitioner's appendix (Pet. App. D 8a) does not

reflect the words “controlled” and “at 9:45 a.m.,” which were

added by hand to the typed affidavit by Agent James Wiliiams

of the Drug Enforcement Administration and were initialled by

him.

ed]

3

On September 13, 1974, within the fixed time limits,

two undercover DEA agents entered the premises described

in the warrant, which had previously been ascertained

to be a law office where Llewellyn was employed. Under

the pretext of wanting to see a lawyer, the agents waited

in the reception area in order to observe the controlled

delivery of the hashish (Tr. 127-128, 134-135, 154).

The regular postal carrier soon delivered the package to

Llewellyn, the receptionist, and left with a _ receipt

(Tr. 117-118). Petitioner then came into the reception

area from his office and took the package from Llewellyn

(Tr. 121-122). He held it for a few minutes, put it on

her desk, and returned to his office (Tr. 124). A short

time later, after petitioner had left the office for court

(Tr. 124), Llewellyn placed the package in petitioner’s

office (Tr. 125).3 Agent Williams thereupon entered the

inner office with the search warrant and seized the pack-

age (Tr. 127, 151).

2. Petitioner contends (Pet. 10) that venue was

improper in the Northern District of Georgia because

the crimes of conspiracy and importation were completed

at the port of entry, New York City. Petitioner first

rasied the claim of improper venue on appeal. Since this

alleged defect was apparent on the face of the indict-

ment, petitioner’s failure to object either before or

during trial waived any objection. United States v.

John, 518 F. 2d 705, 708-709 (C.A. 7); United States

v. Jackson, 482 F.2d 1167, 1179 (C.A. 10), certiorari

denied, 414 U.S. 1159. See also United States v. Dryden,

423 F.2d 1175, 1178 (C.A. 5), certiorari denied, 398

U.S. 950.

‘Llewellyn testified that petitioner had told her in early 1974

that if a package came addressed to her, it would be meant

for him and that she should receive it (Tr. 122-123). Subsequently,

a package from overseas had arrived in her name and she had put

it in petitioner's office (Tr. 123). Accordingly, Llewellyn believed

the second package was meant for petitioner as well (Tr. 122).

EPO SE ELS GLEE TI TE IOS OS ee SIO OT Ta,

RE ENE ERY 4

.

4

In any event, the venue here was proper because

the conspiracy to import hashish did not terminate when

the package first entered the United States but continued

until its delivery to petitioner in Georgia. See United

States v. Reynolds, 511 F.2d 603, 607 (C.A. 5); United

States v. Guajardo, 508 F.2d 1093, 1095 (C.A. 5), certiorari

denied, October 6, 1975, No. 74-6489; United States

v. Lawson, 507 F.2d 433, 445 (C.A. 7), certiorari denied,

420 U.S. 1004. Since the arrival of the package in Atlanta

obviously was integral to petitioner’s conspiracy to

import it, venue lay in the Northern District of Georgia.

Hyde v. United States, 225 U.S. 347, 367. Moreover,

since the conspiracy included not only the importation

but also the possession and distribution of the hashish,

petitioner’s solicitation of Teresa Moore in Atlanta also

was an overt act that established venue.’

Even though it is unnecessary to reach the question

in light of the concurrent sentences imposed on petitioner,

see Barnes v. United States, 412 U.S. 837, 848, n. 16,

venue also was proper in the Northern District of Georgia

for the substantive importation offense. Importation of

a controlled substance is a continuing crime, which may be

prosecuted at the place of ultimate delivery as well as at

the port of entry. See 18 U.S.C. 3237(a); United States

v. Barnard, 490 F.2d 907, 911 (C.A. 9), certiorari denied,

416 U.S. 959; United States v. Jackson, supra, 482 F.

2d at 1178.5

4An overt act may be proven although it is not alleged in the

indictment. United States vy. Downing, 51 F.2d 1020, 1031 (C.C.A. 2).

SKeck vy. United States, 172 U.S. 434, upon which petitioner

relies, was decided prior to the enactment of Section 3237(a).

Moreover, despite petitioner's citation of two district court cases,

there is no conflict among the circuits as to whether importa-

tion of a controlled substance is a continuing offense. The Ninth

Circuit in United States v. Barnard, supra, has disagreed with the

OPEL LPS SL IOL IE ELE EOE A aE ate Be

5

3. Nor is there merit to petitioner’s several contentions

(Pet. 12-15) that the hashish was illegally seized. First,

the package from the Netherlands was properly opened

in New York by customs officials acting without a warrant.

As this Court recognized in United States v. 12 200-Ft.

Reels of Film, 413 U.S. 123, 125:

Import restrictions and searches of persons or pack-

ages at the national borders rest on different consider-

ations and different rules of constitutional law from

domestic regulations. The Constitution gives Con-

gress broad, comprehensive powers “{t]o regulate

Commerce with foreign Nations.” Art. I, §8, cl. 3.

Historically such broad powers have been necessary

to prevent smuggling and to prevent prohibited articles

from entry.

Accordingly, the government is free to inspect inter-

national mail entering this country without probable

cause or other suspicion. United States v. King, 517 F.2d

350, 351-352 (C.A. 5); United States v. Barclift, 514 F.2d

1073, 1075 (C.A. 9), certiorari denied, October 6, 1975, No.

74-6431; United States v. Odland, 502 F.2d 148, 150-151

(C.A. 7) certiorari denied, 419 U.S. 1088. Cf. United

States v. Doe, 472 F.2d 982 (C.A. 2), certiorari denied

sub nom. Rodriquez v. United States, 411 U.S. 969.

Furthermore, the presence of the undercover agents in

petitioner’s outer office during the controlled delivery was

not a search, since the reception area was open to the

public. Katz v. United States, 389 U.S. 347, 351; Lewis

v. United States, 385 U.S. 206, 210-211. Nor were the

agents required to give notice of their authority and pur-

pose pursuant to 18 U.S.C. 3109, for they made a normal

dicta in United States v. Feldman, 366 F. Supp. 356 (D. Hawaii),

and we are unaware of any decision in the Fourth Circuit that

has adopted the reasoning in United States v..Lember, 319 F.

Supp. 249 (E.D. Va.).

ANETTA RMP AE PERI SHR

KLE) PIL Fac LE EIT ik RII ET RLY

entrance into an office open for business, not a forcible

entry into a house. Their entry into the inner office to

which Llewellyn had delivered the package was proper

to execute the search warant.

Finally, the warrant adequately described the premises

to be searched. Although the premises were designated by

reference to the box, the warrant also directed the officers

to execute the search at the specific location, 2311 Bank

of Georgia Building, to which the package was addressed.

Viewed “in a commonsense and realistic fashion,”

United States v. Ventresca, 380 U.S. 102, 108, the warrant

described with sufficient particularity the object and situs

of the search.

4. Petitioner contends (Pet. 16) that the evidence was

insufficient to support his convictions for importation and

conspiracy. Viewing the evidence in the light most

favorable to the government (Hamling v. United States,

418 U.S. 87, 124), there was substantial evidence to

sustain the jury’s verdicts. From petitioner’s statements

to Hester, Weldy, and Moore that he would be receiving

a pound of hashish from Amsterdam within a week, the

jury could legitimately infer that petitioner had entered

into an agreement with ene or more other persons for

the drugs to be sent to him in Atlanta. The arrival a

few days thereafter of the box from the Netherlands

addressed to petitioner’s office in Atlanta, in addition to

Liewellyn’s testimony about petitioner's use of her

name to receive packages, also amply supported the jury’s

finding of illegal importation.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Ropert H. Bork,

Solicitor General.

Marcu 1976.

DOJ-1976-03

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