Unpublished Disposition, 898 F.2d 157 (9th Cir. 1989)

MEMORANDUM^** 

Ronald D. Stefenel appeals his conviction following a jury trial for conspiracy, in violation of 18 U.S.C. § 371, and transportation of stolen property in foreign commerce, in violation of 18 U.S.C. § 2314. Stefenel contends that the district court erred by denying his motions to suppress evidence and for judgment of acquittal. We have jurisdiction under 28 U.S.C. § 1291 and we affirm in part and reverse and remand in part.

* Stefenel contends that the district court erred by denying his motion to suppress $12,000 worth of stolen traveler's checks discovered by an employee of the shipping company through which Stefenel sent the checks from Los Angeles to Hong Kong. Stefenel argues that because the employee received a reward from the United States Customs Service, he was acting as an agent of the government when conducting the search. This contention lacks merit.¹ 

To determine whether a private person acted as a government agent in an illegal search and seizure, this court considers " '(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.' " United States v. Black, 767 F.2d 1334, 1339 (9th Cir.) (quoting United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982)), cert. denied, 474 U.S. 1022 (1985). "The court's findings of fact at the suppression hearing are reviewed by the 'clearly erroneous' standard." United States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir.), cert. denied, 469 U.S. 839 (1984).

Here, the employee who conducted the search testified that it was company policy to inspect shipments leaving the United States to prevent improper packages from delaying an entire shipment upon arrival at customs in the receiving country. He further testified that in accordance with this policy, he inspected Stefenel's package and noticed that it had a rough edge. From the feel of the package, he thought it might contain money or airline tickets. Therefore, he opened the package, found the traveler's checks, and gave them to a U.S. Customs agent. Several months later, he received a $200 reward from the agent. The agent testified that a week before the traveler's checks were discovered, he had told some company supervisors that if certain items were seized, there was a "possibility" of a reward. There is no evidence, however, that the employee knew of any possible reward or that he was acting with the belief that he would receive a reward.

Therefore, the district court's finding that the employee who conducted the search was following company policy, and thus had a legitimate independent motivation for opening the package, is not clearly erroneous. See Snowadzki, 723 F.2d at 1429. The Customs agent's statement to certain company supervisors about the possibility of a reward is insufficient to convert the employee into a government agent. See Black, 767 F.2d at 1339. Cf. United States v. Walther, 652 F.2d 788, 793 (9th Cir. 1981) (private citizen was acting as a government agent in conducting a search where he had "no motivation other than the expectation of reward"). Finally, the Customs agent's statement is not sufficient to prove an agreement or understanding between the U.S. Customs Service and the shipping company regarding rewards such that the government knew of or acquiesced in the company practice of opening packages. See Snowadzki, 723 F.2d at 1429-30.² 

II

Stefenel contends that the district court erred by denying his motion for judgment of acquittal. Stefenel argues that the court lacked jurisdiction to convict him of interstate transportation of stolen property under 18 U.S.C. § 2314 because the traveler's checks did not constitute stolen property. This contention is meritless.

For the reasons stated in the disposition of Stefenel's codefendant's appeal, we hold that the district court had jurisdiction because the fraudulently obtained traveler's checks undoubtedly constituted stolen property under 18 U.S.C. § 2314. See United States v. Wakley, No. 88-5271, unpublished memorandum decision (9th Cir. April 13, 1989).

III

Finally, although Stefenel did not raise the issue on appeal, we have held 18 U.S.C. § 3013, the statute authorizing imposition of a special assessment fee, to be unconstitutional. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). We raise this issue sua sponte, and reverse and remand to the district court with instructions to vacate the special assessment fee of $100 included in Stefenel's sentence. See United States v. Hoyt, 888 F.2d 1257, 1258 (9th Cir. 1989).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.