Unpublished Disposition, 908 F.2d 978 (9th Cir. 1987)

MEMORANDUM^* 

Appellant Richard Leroy Jones appeals his conviction of one count of conspiracy to mail child pornography in violation of 18 U.S.C. § 371; four counts of mailing child pornography in violation of 18 U.S.C. § 2252(a) (1); and four counts of smuggling in violation of 18 U.S.C. § 545. Appellant Jerry C. Mitvalsky appeals his conviction of one count of conspiracy to mail child pornography in violation of 18 U.S.C. § 371; three counts of aiding and abetting Jones in the mailing of child pornography in violation of 18 U.S.C. § 2252(a) (1) and 18 U.S.C. § 2; and three counts of aiding and abetting Jones in smuggling in violation of 18 U.S.C. § 545 and 18 U.S.C. § 2. We affirm.

* Appellants argue that the district court improperly denied their motions to suppress evidence obtained as a result of the customs inspection of a package sent from appellant Jones in Thailand to appellant Mitvalsky in Nevada. Their contention is that the customs mail technician lacked reasonable cause to suspect that the package contained contraband and thus, that he conducted a border search in violation of 19 U.S.C. § 482.¹  That statute provides in relevant part that " [a]ny of the officers or persons authorized to board or search vessels may ... search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law." The Supreme Court has previously applied this statute to incoming international letter-class mail approvingly on the ground that such searches are so-called border searches that require neither a warrant nor probable cause. See United States v. Ramsey, 431 U.S. 606 (1977); see also DeVries v. Acree, 565 F.2d 577 (9th Cir. 1977).

"Generally, we review motions to suppress de novo. While findings of fact made at a suppression hearing are upheld unless clearly erroneous, the ultimate issue of the lawfulness of a search presents a mixed question of law and fact that we review de novo. " United States v. Limatoc, 807 F.2d 792, 794 (9th Cir. 1987) (citations omitted); see also United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987) (explicitly applying this standard to warrantless search and seizure cases). The search in question in this case was a border search. "A district court's ruling on the validity of a border search is reviewed de novo. " United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986).

Appellants' protestations to the contrary, the district court correctly denied the motions to suppress. Although the district judge apparently decided at the suppression hearing that the package had been parcel class and thus properly subject to search for that reason only under customs rules, he also alternatively ruled that even if the package had been letter class, the Sec. 482 reasonable suspicion standard was satisfied because of the presence of three factors: the package's "substantial" size (11" X 9 1/2" X 3") (much thicker than a regular envelope); the fact that the package had been shipped from Thailand, a known source for narcotics; and the unusual "feel" and "weight" of the package. As it turned out, this alternative ruling was necessary because the customs mail technician at trial changed his mind and asserted that the package had been sent letter class. We agree that these factors identified by the district court made it reasonable to suspect that the letter-class package contained narcotics.

The "reasonable cause to suspect" standard is equivalent to a "reasonable suspicion" standard, see United States v. Most, 789 F.2d 1411, 1415 (9th Cir. 1986); under it "an official must be aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant that the package contains illegal material." Id. The customs mail technician's suppression hearing testimony makes clear that he was aware of the very factors on which the district judge based his reasonable suspicion ruling.

Jones points to the fact that the customs mail technician's testimony at the suppression hearing indicates that he opened the package merely because it was placed in a "parcel" bin, not because he actually suspected it contained contraband. Jones further notes that when the technician testified about the objective factors justifying a search of the package, he did so hypothetically, stating that if he had been suspicious, it would have been due to the parcel's size, country of origin, and weight. Citing United States v. Whiting, 781 F.2d 692 (9th Cir. 1986), Jones contends that such testimony cannot establish reasonable suspicion under Sec. 482. But Whiting simply does not say that the customs mail technician actually, subjectively had to believe that he had reasonable suspicion justifying a search at the time of the search. Moreover, the Supreme Court has rejected this argument in the stricter probable cause context. See Florida v. Royer, 460 U.S. 491, 507 (1983) (" [T]he fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop rationale would not foreclose the State from justifying Royer's custody by proving probable cause...."); see also 1 W. LaFave, Search and Seizure Sec. 3.2(b), at 567-69 (2d ed. 1987) (arguing that probable cause has no subjective belief component). We reject it here as well.

The factors relied upon by the district court at the suppression hearing are similar to factors that both the Supreme Court and this circuit have previously held justify a border search of international mail under Sec. 482. See, e.g., Ramsey, 430 U.S. at 614 (letters were from Thailand, were "bulky," weighed several times more than a normal airmail letter, and " 'felt like there was something in there' "); Most, 789 F.2d at 1416 (package was from Thailand; label described a blowfish paperweight but seemed to contain something extra because it weighed more than expected for a paperweight). Moreover, although the appendix to a series of Customs Service regulations passed pursuant to Sec. 482 indicates that reasonable suspicion cannot exist solely by virtue of the fact that " [t]he mail article is from a particular country, whether or not a known source of contraband," 19 C.F.R. Sec. 145 app., the district court's ruling in the instant case was clearly based on a combination of factors: the country of origin, the weight, and the feel of the package.² 

Appellant Jones attempts to find a separate fourth amendment violation in the manner in which the search was conducted. He correctly notes that a border search, like any other search, must be conducted in a reasonable manner. See, e.g., Des Jardins, 747 F.2d at 504. But his reliance on Judge Kozinski's dissent in United States v. Nates, 831 F.2d 860, 863-68 (9th Cir. 1987) (Kozinski, J., dissenting), cert. denied, 108 S. Ct. 2845 (1988), is misplaced. In his dissent, Judge Kozinski finds fourth amendment violations in a search of airline baggage because it was conducted without notice to the affected passenger, outside of his presence, and because the passenger was never informed of the search. Yet Judge Kozinski specifically notes that such requirements would be infeasible in the search of international mail, thereby explaining the Ramsey decision's silence on the questions of notification and presence. See id. at 868 n. 9.

II

Appellant Jones contends that the district court improperly refused to instruct the jury on his defense theory of reasonable reliance on Thai government officials' assurances that it was lawful for him to mail the child pornography into the United States as part of a police operation. The defense to which he refers is often called entrapment by estoppel. See, e.g., United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir.), cert. denied, 471 U.S. 1139 (1985). "Entrapment by estoppel occurs when an official tells the defendant that certain conduct is legal and the defendant believes the official." Id. The defendant's reliance must be reasonable. See United States v. Albertini, 830 F.2d 985, 989 (9th Cir. 1987) ("There is an exception to the mistake of law doctrine, however, in circumstances where the mistake results from the defendant's reasonable reliance upon an official--but mistaken or later overruled--statement of the law."). Since " [a] defendant is entitled to a jury instruction on a theory of defense if the theory has a basis in law and in the record, United States v. Solomon, 825 F.2d 1292, 1295 (9th Cir. 1987), cert. denied, 108 S. Ct. 782 (1988), we review de novo the district court's refusal to instruct the jury on the defense of entrapment by estoppel.³ 

None of our cases approves the use of the entrapment by estoppel defense when the defendant acts in reliance on a foreign official's erroneous statement of American law. See, e.g., Cox v. Louisiana, 379 U.S. 559, 569-72 (1965) (police officials in Louisiana); Raley v. Ohio, 360 U.S. 423, 437-40 (1959) (Chairman of the "Un-American Activities Commission"); Hsieh Hui Mei Chen, 754 F.2d at 821, 825 (U.S. Border Patrolman: defense failed because official told defendant conduct was illegal, and defendant knew it); United States v. Clegg, 846 F.2d 1221, 1222-23 (9th Cir. 1988) (U.S. Army and other government officials); Albertini, 830 F.2d at 989-90 (prior Ninth Circuit decision involving same defendant before reversed by Supreme Court); United States v. Timmins, 464 F.2d 385, 387 (9th Cir. 1972) (local U.S. draft board). Indeed, we conclude that it would be patently un reasonable for a United States citizen to trust a foreigner's interpretation of American law, especially given the fact that the entrapment by estoppel defense is tinged with the notion that only officials of the very regime that declares some activity illegal can legitimately convince a private citizen that in fact the conduct is legal. See Ramsey, 360 U.S. at 437 (noting that the Chairman of the "Un-American Activities Commission" "clearly appeared to be the agent of the State in a position to give such assurances [of legality]") (emphasis added). Moreover, as the appellee points out, it is unclear whether the Thai police officer involved in this case had actual authority from his organization to make any representations to Jones.

III

Appellant Mitvalsky contends that there was insufficient evidence to support his convictions for conspiracy to mail child pornography, aiding and abetting Jones in the mailing of child pornography, and aiding and abetting Jones in the smuggling of child pornography into the United States. Our review of the district court's denial of Mitvalsky's motion for acquittal pursuant to Fed. R. Crim. P. 29 requires us "to determine whether, viewing the evidence in the light most favorable to the government, there was substantial relevant evidence produced from which the jury reasonably could have found the defendant guilty beyond a reasonable doubt." United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988).

The elements of conspiracy that must be proved at trial are: "(1) an agreement to accomplish an illegal objective, (2) coupled with one or more acts in furtherance of the illegal purpose, and (3) the requisite intent necessary to commit the underlying substantive offense." United States v. Cloud, 872 F.2d 846, 852 (9th Cir. 1989) (citations omitted). There is no requirement that the agreement be explicit; circumstantial evidence can support a finding of an agreement. Id. Mitvalsky's argument, that the long telephone calls he made to Jones in Thailand weeks before Jones sent the pornography to him cannot establish an illicit agreement, is unpersuasive. This is good circumstantial evidence, ripe for juror inference, and is not marred by the fact that the specific content of these calls is unknown. See United States v. Adler, 879 F.2d 491, 496-97 (9th Cir. 1988). And it was not the only evidence of an agreement. The fact that Mitvalsky held onto the pornography in question not only establishes the overt act required for conviction; it also tends to show his participation in a conspiracy. A letter from Jones dated March 20, 1987, asked Mitvalsky to "please hold" pictures for Jones. Mitvalsky, in the wake of receiving the letter, did just that. The evidence tends to show that Mitvalsky was not just a passive recipient of child pornography. The intent element of conspiracy can be similarly inferred.

Aiding and abetting liability is premised on a showing "that the defendant willingly associated himself with a criminal venture and participated therein as something he wished to bring about." Cloud, 872 F.2d at 850 (citation omitted). The requisite intent can be inferred from circumstantial evidence. See id. (citation omitted). Again, Mitvalsky paints a portrait of himself as a passive, unwitting recipient, but the evidence shows otherwise. And even conceding his contention that liability for aiding and abetting Jones in the mailing and smuggling of child pornography cannot attach unless it is shown that Mitvalsky knew in advance that Jones was going to send prohibited photographs,⁴  the evidence nonetheless tends to show that Mitvalsky so knew. Indeed, as the government notes, Mitvalsky was acquitted on two counts of aiding and abetting involving the first package Jones sent to him. This indicates two related things: first, that the jury probably felt that there was insufficient evidence to prove that Mitvalsky was other than a passive recipient the first time around; and second, that Mitvalsky's subsequent storage of this and later packages suggested to the jury that at some point Mitvalsky clearly became an active aider and abettor.

In short, sufficient evidence existed for the jury to convict appellant Mitvalsky of the crimes with which he was charged.

IV

Appellants' convictions are AFFIRMED.