United States v. Contrades (196 F. Supp. 803, 1961)

TAVARES, Chief Judge.

In this case, the defendant, John David Contrades, was indicted under 18 U.S. Code, Sec. 1403, the charge reading as follows:

“That on or about January 14, 1961, * * * John David Con-trades did use a communication facility, to-wit, a telephone, in committing and in causing and facilitating the commission of, and in attempting to commit, an act and acts constituting an offense and offenses, the penalty for which is provided in subsection (c) of Section 2 of the Narcotic Drugs Import and Export Act, as amended (Sec. 174, Title 21, United States Code), to-wit, the sale and facilitation of the sale of heroin, a narcotic drug, which had been fraudulently and knowingly imported and brought into the United States contrary to law, knowing the same to have been imported and brought into the United States contrary to law, in violation of Section 1403 of Title 18, United States Code.”

The case was tried before a jury.

The evidence in substance was as follows : City and County of Honolulu policeman Keala on the Vice Squad testified to a “stakeout” of ground-floor apartment G (held in the name of Harold Takashima) at a Kaioo Street address, during a period from about January 11 to January 17, 1961, during which various members of the City Police Department, in cooperation with Federal officers, observed, from outside Apartment G and from a second story apartment above Apartment G, what was “going on” therein, after having received a tip from an undisclosed source that narcotics might be being dispensed from or at that address.

The officer Keala testified that the stakeout or surveillance was not on a continuous twenty-four hour basis during the seven or eight-day period of surveillance, but that on every day, except one (and that one after January 14) for a period of several hours, sometimes six to seven hours a day, one or more of the stakeout team observed the goings-on in Apartment G, insofar as they could see from the outside, through open doors or windows, and by listening, that the defendant Contrades and one Tengan were in this apartment “most of the times” from March 11 to 14, and other individuals also were there during this period; that on January 14, at about 8:30 p. m., (at which time both Tengan and Contrades were in the apartment) through a kitchen window equipped with jalousies (which were apparently partly open but not open enough to see through), Officer Keala, who was listening behind a hedge outside of the premises, heard the sound of a telephone being dialed, and then a “booming low voice” (which he recognized as that of Contrades through having seen and heard him talking in and out of the apartment), saying:

“Willie, you want eight caps?” (Then a pause, followed by the words:) “Tomorrow morning? No, tonight at 9:30.”

Qualifying as an expert on underworld terminology of users, buyers and sellers of narcotics, Keala testified that, in the jargon of that group, the word “caps” has a very definite and special meaning, to-wit heroin. This was corroborated by Federal Bureau of Narcotics Agent Grady.

Keala also testified that, at 9:30 that night, a Willie Bright called at the apartment; that this Willie was “supposed to be taking heroin”; that Tengan was outside the apartment when Willie arrived, and welcomed and brought him into the apartment; that Bright left later, but was not talked to, searched or arrested. Neither Contrades nor Tengan is shown by the testimony to have been at the apartment after January 14.

Another City police officer, Straus, and Federal agent Grady, testified that on January 17, 1961, armed with a Federal search warrant, they searched Apartment G, at which time two other persons, Mr. Takashima (the owner or lessee of the apartment) and another were present, and eight capsules of heroin were found concealed in a bedpost of the bed in the bedroom of the same apartment.

These capsules were analyzed and found to be heroin by City police chemist Tom, who also testified. The capsules of heroin so found on January 17th, were admitted in evidence.

Practically all of the foregoing evidence was objected to by defendant, who-also moved for a mistrial and for judgment of acquittal at the close of the government’s case.

The motion for mistrial being denied and decision on the motion for judgment of acquittal being reserved by the Court under Rule 29(b) F.R.Crim.P., 18 U.S.C.A., the defendant testified in his defense, substantially as follows:

His residence (which was not near to or at Apartment G); his employment— that he was a cement mason by trade, having last worked at that trade about four months ago, then worked as an organizer for the cement masons’ union, but was unemployed in January, 1961, and was collecting unemployment compensation ; that, after his arrest, he was evicted from his Lunalilo Home Road address for inability to pay rent; that he did not remember whether on January 14th he was in the Takashima apartment at Kaioo Road, but that he had visited at that apartment more than once, but not as many as ten times, in January of this year, but did not remember the dates; that he had known Takashima for twenty-five years, both of them having lived as boys in Kapaa, Kauai, and having been together in “CC Camp”; that because they were old friends, he would go down and talk to Takashima and look at TV programs there; that he had never telephoned anybody from there except his wife; that he absolutely denied making any telephone call there to a Willie or saying any of the words attributed to him by the government witness; that prior to January 17th when the place had been searched and heroin found there, he had had no knowledge of any heroin kept there; that he had never tried to sell or facilitate the sale of heroin by telephone or otherwise; and that, on the occasions when he did visit Takashima in January, he would stay not longer than one to one and a half hours on any one day.

The foregoing is a fair statement of the entire evidence.

The government contended, in substance, as follows:

(1) That 18 U.S.C.A. § 1403, dispenses entirely with the necessity of proving possession of any heroin in connection with a telephone conversation attempting to secure a sale of the same — -and that all the prosecution has to do is to prove that the defendant telephone conversationalist used words indicating an attempt and intention to sell or facilitate the sale of heroin, and the offense is complete. This contention of law is discussed in detail later in this decision.

(2) The government further contends, on the factual side, that, taking into consideration all the surrounding circumstances, namely the facts: (a) that the police got “information” or a “tip” as to alleged traffic in heroin at the address in question; (b) that, as a result of this information of undisclosed source, the police (using that term to include both Federal and City and County agents) conducted a “continuous” stakeout from about January 10 or 11 to January 17, 1961; (c) that Contrades and one Tengan (also under indictment for a similar offense) were in the Takashima apartment during some of the daily observation periods during the term of the stakeout for some three days before, and on, January 14th when the alleged telephone conversation occurred; (d) that apparently on January 14, Contrades and Tengan were alone in the apartment until Willie Bright appeared there; (e) that Contrades was heard to dial and speak over the telephone (though not actually seen by the officer stationed outside the window) the words,

“Willie, you want eight caps?” (Pause) “Tomorrow morning? No, tonight at 9:30.”;

(f) that a “Willie”, whose last name is “Bright” and who was “supposed” to be a user of heroin, did call at the apartment at the time appointed in the telephone conversation — 9:30 p. m., and was welcomed and taken by Tengan into the apartment; (g) that three days later, on January 17, the end of the so-called single or “continuous” stakeout period .for this one apartment, as a result of this “tip”, eight capsules of heroin were actually discovered hidden in a bedpost in the apartment, with Takashima and another present: — there is sufficient evidence of guilt to be submitted to the jury, and that from this evidence, in connection with the surrounding circumstances, the jury could infer that there had been a continuous operation from January 10 to 17, during which heroin was stocked or held in possession in the apartment, this inference to be aided by an interpretation of the word “caps” to mean heroin, and by the further inference that Contrades then had in his possession, actually or constructively, heroin to be sold when he asked if Willie wanted eight caps (heroin).

I take up the government’s second contention first, in the order of the alleged facts and contentions above stated.

At its very best, and stretching every possible inference or implication to the extreme against defendant, this evidence is insufficient to convict, even if the government’s contentions as to the applicable law be assumed to be correct. Bearing in mind that the evidence must prove, beyond a reasonable doubt, that the defendant attempted by the telephone conversation to sell or facilitate the sale of heroin, let us examine the same.

(a) The fact that the police got a “tip” or “information” as to alleged narcotics activity at a given address is not evidence on the merits as to the defendant’s guilt or innocence. Its only relevance could be on the question of probable cause to justify an arrest and/or a search and seizure, a question not involved in this case, since the defendant made no claim of any alleged illegal search and seizure. It has no significance whatsoever in this case. But even such a tip, without more, would be insufficient to justify an arrest or a search and seizure. United States v. Tom Yu, D.C.Ariz.1932, 1 F.Supp. 357.

(b) As to the claim of a “continuous” stakeout or a single continuous sustained operation at this address based on the same “tip”, the evidence fails to sustain even this contention. Accepting all of the government’s evidence at its face value on this point, including hearsay on the part of two officers who were there part, but hot all, of the times in which the stakeout was being conducted, the surveillance started on January 10th or 11th (the evidence is not clear as to which was the exact date of commencement) and apparently ended on January 17th with the search under a Federal search Warrant. But on not a single one of these seven or eight days was the stakeout continuous for twenty-four hours — it was for from five to seven hours a day, “depending” apparently upon circumstances not disclosed by the evidence, and one day, January 15th, was skipped entirely (apparently because it was Sunday). Moreover, neither separately nor collectively were the “surveillants” in a position to see into all the rooms of the apartment and observe all that took place therein at any given time. Under the circumstances, it can not be said that the surveillants were in a position to know with any degree of accuracy all of the people who went into or came out of the Takashima apartment during the “stakeout period”, not to speak of all the uncertainties as to what might have gone on in the apartment, even during the actual surveillance, which the surveillants would be unable to observe. Moreover, there is a total lack of any evidence to show that Contrades or even Tengan (if he could be considered to be a confederate of Contrades in this connection) called at or remained in the apartment after January 14, 1961.

(c) and (d) The fact that Con-trades and Tengan were in the apartment “most of the time” during the three or four days before and on January 14th, and were alone in the apartment the night of January 14th, is rendered inconclusive, (1) by the lack of continuous surveillance of the apartment or of Con-trades or Tengan even during this period, and (2) by the failure to prove that Willie Bright actually got or negotiated for heroin. Nor would their mere presence in the apartment, even if proved, be sufficient to charge them with knowledge that heroin was hidden in the apartment, under Jackson v. United States, 1957, 102 U.S.App.D.C. 109, 250 F.2d 772. See also Williams v. United States, 9 Cir., 1961, 290 F.2d 451.

(e) The words claimed to have been spoken by Contrades over the telephone on January 14th were scanty, and spoken only once. They were ambiguous and had to be interpreted in the light of the special jargon of the narcotics underworld trade, in order to give to them the meaning claimed by the government —that they referred to heroin. Of course, if the evidence had been otherwise sufficient, this question of what was meant could have been submitted to the jury. But it is not out of place here to point out that this statement was in the nature of an admission by the defendant, as to which, one of the standard instructions properly reads:

“All evidence relating to any admission or incriminatory statement claimed to have been made by a defendant outside of court should be considered with caution and weighed with great care.” 20 F.R.D. 245.

The government claims that from these words alone, coupled with the finding of the heroin in the same apartment three days later, it can be inferred that defendant was offering to sell heroin and, further, that from this it can be inferred that he was referring to heroin in his actual or constructive possession or control — that is, that this was an admission by him that he then had such possession or control of heroin. Aside from the question as to whether the words are susceptible of an innocent construction or meaning, as opposed to an incriminating one, or whether they were heard accurately, this is an inference which I do not believe was contemplated or is allowable under the statutes involved in this case, as taking the place of proof of actual or constructive possession in order to give rise to the statutory presumption of illegal importation and knowledge thereof. It is true that such illegal importation and knowledge could be proved by actual evidence, thereof, other than the statutory presumption raised by proof of actual or constructive possession, but such actual evidence is totally lacking in this ease, so far as Contrades is concerned. This legal question is discussed further later.

(f) Did the fact that Willie Bright showed up at 9:30 p. m. — the time stated in the alleged telephone conversation —add anything to the picture? It most certainly is somewhat of a coincidence, assuming that the government’s evidence is correct, that a “Willie” showed up at the apartment at the exact time stated in the conversation, but at the most it is only a suspicious circumstance. For one thing, the name “Willie” is a common one and could have referred to any number of persons, and, for another, the testimony was only that Willie Bright was “supposed” to be a heroin user — the exact and only testimony as to this point being:

“Q. What did Willie Bright have to do with narcotics? A. Well he was supposed to be taking heroin too, sir.” (Italics added.)

This is far from any allegation or proof that Willie Bright was a known user or addict of or dealer in heroin. For. aught that appears, this supposition might have been just a suspicion in the mind of officer Keala. It illustrates the weaknesses which permeate this entire case.

(g) The heroin found on January 17 obviously cannot be considered to have been in the possession of Contrades since:

(1) He was not the owner or lessee of the apartment;

(2) He was not present in the apartment when the heroin was found, the last time the government’s evidence showed him to have been present in the apartment being three days earlier;

(3) There is no evidence to prove that any of the heroin found on January 17 was there on any of the days Contrades was present; and

(4) No conspiracy was either alleged or proved between Contrades and the two persons found in the apartment on the day the heroin was found, so as to permit the acts or possession of these others to be construed to be the acts or possession of Contrades.

Thus, it cannot be said that any possession of heroin by Contrades was proved, which would have given rise to the statutory presumptions of illegal importation and knowledge of such illegal importation authorized by section 174. This would dispose of the case were it not for the government’s first contention of law above made. This contention in more detail, is in substance, as follows: That 18 U.S.C.A. § 1402 makes the possession of any heroin contraband; that the Court can and should take judicial notice of section 1402 and of the claimed facts, (a) that the importation of opium for the purpose of manufacturing heroin and, of course, the importation of heroin itself, is illegal under present laws and regulations, (b) that heroin cannot legally, under present laws and regulations, be manufactured in the United States, and (c) that, under present laws and regulations, heroin has no allowable medical use; and that, from these allegedly judicially noticeable facts, the Court can and should supply through such judicial notice, the necessary inference or presumption of fact that, if any heroin is attempted to be sold, or sold, in the United States, it must of necessity be heroin that has been illegally imported and, since everybody is presumed to know the law, the defendant must be presumed also to know this. Therefore, the government contends, where section 1403 refers to an act or acts constituting an offense under 21 U.S.C.A. § 174 as amended, which latter section in turn requires, as ingredients of the offense that the heroin sold, attempted to be sold, etc., be illegally imported and that the defendant know that it was so illegally imported, these two requirements are no longer necessary to be proved. Accordingly, the government contends that, even in the absence of proof of illegal importation and knowledge thereof, possession, actual or constructive, which raises the statutory presumptions of such illegal importation and knowledge thereof under section 176, need not be proved in order to convict under section 1403.

An analysis of section 1402 itself throws doubt on the construction claimed for that section.

The section, in terms, appears to apply only to “heroin lawfully possessed prior to the effective date” of the Act.

This seems to be also the interpretation placed thereon by the Secretary of the Treasury in the regulations adopted pursuant to this section.

Thus section 306.3 of the regulations refers only to heroin “heretofore lawfully possessed.” Nothing is said about heroin coming into possession in the future, particularly heroin which might possibly, say, in the future, be lawfully manufactured or possessed. Moreover, both section 1402 and the regulations, at least in terms, contemplate the possibility of heroin being in lawful possession in the future, at least for scientific purposes. This certain3y militates against reading into section 1402 an absolute prohibition of possession of heroin under any and all circumstances after that section’s enactment.

A further obstacle to the government’s interpretation of section 1402 is the fact that it does not in terms create any crime, or prescribe any penalty by way of fine or imprisonment, as to or against any person for merely possessing the heroin, except to the extent that the heroin itself is to be “declared” contraband and become subject to forfeiture. Because of the doubt raised by the foregoing circumstances, including the failure of the Treasury Department in its regulations to declare contraband any heroin except that “heretofore lawfully possessed”, I am impelled to hold that section 1402 does not, by itself, render mere possession of all heroin thereafter' illegal.

The government’s contention as to section 1402 in essence amounts to a claim that 18 U.S.C.A. § 1403 and 21 U.S.C.A. § 174, as amended, are further amended by implication by section 1402 to the extent of dispensing with any requirement of proof of possession (with its presumptions of unlawful importation and knowledge thereof), or, in the alternative, dispensing with any proof of actual unlawful importation and proof of actual knowledge thereof. The fallacy of this contention is obvious from the fact that the same section which enacted sections 1402 and 1403, also expressly caused section 1403 to refer to 21 U.S.C.A. § 174, and then amended such section 174 without including the implied amendment claimed by the government.

On the other hand, assuming that the Court can take judicial notice of the following facts contended for by the government: (1) that the importation of opium for the purpose of manufacturing heroin is prohibited, (2) that heroin cannot legally, under present laws and regulations, be manufactured, in the United States; (3) that under present laws and regulations heroin has no allowable medical use —even then I am unable to see where that would help the government to prove a violation under section 1403. If the mere possession of heroin anywhere and under any circumstances is to be made illegal, it would seem necessary, in the light of the decisions hereinafter cited, to attribute the exercise by Congress of this absolute prohibition of possession, without any connection with commerce or federal taxation, to the treaty power and the various international conventions for the control of the narcotics traffic. Can we constitutionally do so?

A careful study of the history of the Federal Narcotics Control laws, including the various treaties and conventions relating thereto, too lengthy and numerous to be here specifically detailed, discloses that, from the very inception, these statutes, and particularly section 174 and its predecessors, have been bottomed on the taxing power of Congress or on the power to regulate foreign and interstate commerce. The Federal decisions in which the constitutionality of this type of legislation has been raised contain numerous statements expressly or tacitly holding or assuming that Congress would be without power to prohibit or regulate a purely intrastate transaction in narcotics not linked in some way with foreign or interstate commerce or taxation.

While at least two recent statutes have mentioned treaty enforcement as one of their respective purposes for the enactment of the acts or portions thereof, I have found but one decision, and that a recent one, and based on the expressly stated purpose of the particular provisions involved, which bottoms any of the narcotics laws on the treaty-making power, or on any particular treaty or treaties, as the basis for congressional action, aside from the commerce and tax powers.

Moreover, neither the Stutz nor the Eramdjian case actually covered the presently involved sections 1403 and 174. In the light of the Court’s decision in State of Missouri v. Holland, 1920, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641, the holding and dictum in the Stutz and Eramdjian cases, and the very strong undertakings on the part of the United States in the various treaties and conventions relating to the control of narcotic drugs, there appears to be more than a plausible ground today, as contended by the government, for justifying congressional regulation of intrastate transactions in narcotics without tying the same to illegal importation or exportation, or the exercise of the taxing power, but the question is not entirely free from doubt, and if the constitutional question can be avoided by a reasonable construction of the statutes themselves which does not raise such question, this Court should follow that course.

Strictly upon ordinary principles of statutory construction, even if Congress can constitutionally dispense with the necessity of proving illegal importation and guilty knowledge thereof, in connection with the offense of using communication media to sell or attempt or conspire to sell narcotics, in my opinion it has not done so. Section 1403 says,

“Whoever uses any communication facility in committing or in causing or facilitating the commission of, or in attempting to commit,