# Brief for the United States, Wong Sun v. United States/Argument/Petitioners' confessions were corroborated

III
Petitioners' Confessions Were Corroborated By Substantial Additional Evidence
Petitioners' confessions, as we will point out in detail below, showed that they transported heroin on or about June 1. The independent testimony of the officers showed the delivery of 27 grams of heroin to them by Yee at Yee's house, and showed petitioner Toy's detailed familiarity with the location of Yee's room in the house and even the usual tine for the departure of Yee's mother from the house (R. 63–64). In addition, Yee—in other respects a recalcitrant witness—confirmed his acquaintance with both petitioners Wong Sun and Toy (R. 20). He also testified to an earlier, corroborating statement to the officers, made under oath, that Wong Sun and Toy had come to his house on June 1, prior to midnight, and on June 3, between 11 p. m. and midnight, but he alleged at the trial that his earlier statement had been false (R. 29–30). Taken together, these items of ​evidence outside the confessions furnished adequate corroboration.
A. Corroboration of A Confession Requires Only Evidence That Will Tend to Establish The Trustworthiness of The Confession, and Does Not Require Evidence Sufficient to Establish The Corpus Delicti Independently of The Confession
The special problem with respect to reliance on a confession arises out of concern whether a particular confession may be the product of "the aberration or weakness of the accused under the strain of suspicion" (Opper v. United States, 348 U.S. 84, 90). But if facts are shown, by evidence other than the confession, demonstrating that the confession is not a fantasy warped by the aberration or weakness of the accused, then the finder of fact—here, the trial judge—may properly attribute the confession to the familiar motivation of an accused person who realizes that he has been caught and may as well tell the truth. The confession may then be weighed upon the basis "that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement" (Hopt v. Utah, 110 U.S. 574, 585).
The limited extent of the corroboration required has been clearly marked by this Court. The essence, as stated in Opper, supra, is that the independent evidence should "tend" to establish the trustworthiness "of the statement"; and it "is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth" (348 U.S. at 93).
​It is equally clear that "the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti" (Opper v. United States, 348 U.S. 84, 93) or, as elaborated in Smith v. United States, 348 U.S. 147, 156 (emphasis added):
It is agreed that the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty. [citing decisions]. In addition to differing views on the substantiality of specific independent evidence, the debate has centered largely about two questions: (1) whether corroboration is necessary for all elements of the offense established by admissions alone [comparing decisions], and (2) whether it is sufficient if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged. [comparing decisions]. We answer both in the affirmative. All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense "through" the statements of the accused. * * *
While it is concededly difficult to match the facts of the various cases in which this type of question arises, the independent testimony here is at least as corroborative as that held sufficient in other cases ​where the independent evidence was admittedly insufficient to prove the whole case in itself but was found to be enough to indicate that the various admissions were reliable. Thus, in Smith v. United States, 348 U.S. 147, quoted above, an admission that the taxpayer had small net worth at the commencement of an income-tax prosecution period was held sufficiently corroborated by such nondispositive but supporting facts as recitals of low income in tax returns prior to the net worth date. The recitals in earlier returns might well have been falsified but they nevertheless were consistent with the statement of a low net worth. Similarly, the employment of the taxpayer at low pay prior to the net worth date was corroborative of low net worth, although the low pay would not preclude substantial assets held from a long time before, which might have negated a low net worth. Corroboration was also found in the taxpayer's conduct during the prosecution period, in the form of large expenditures and a new racing-news business in which he kept no records (id., 157–159).
In Opper v. United States, supra, 348 U.S. 84, the accused's admission that he paid the money to a government official (although in the admission it was asserted that this was only a loan) was held corroborated by a check drawn by the defendant, together with the records of a concurrent long-distance call to Opper's home from the employee's home, and an airline ticket in the employee's name to Opper's city. There, again, any or all of the ​corroboration could have been explained away upon various hypotheses, but the facts did serve to indicate that the admission by the accused was no mere fantasy or aberration.
We turn now to the corroboration of the confessions in the present case.
B. Wong Sun's Confession and Its Corroboration
1. Wong Sun's confession stated the following: He met petitioner Toy at Marysville, California, about the middle of March, 1959, during a Chinese celebration. They returned to San Francisco together and discussed the possible sale of heroin. Wong Sun informed Toy that he could get a "piece" (28 grams, supra, p. 7) from one "Bill" for $450. Shortly after, Toy told Wong Sun he wanted a piece for "Johnny". Wong Sun knew Johnny only through Toy. Wong Sun obtained the heroin, and did so again on about 7 or 8 additional occasions, on one of which the heroin was for someone other than Johnny. On several occasions after obtaining the first piece, Wong Sun drove with Toy to Johnny's house, 606—11th Avenue (in San Francisco), and Toy would deliver the heroin to Johnny and the three would smoke some of the ​heroin. Johnny paid Toy $600 for each piece. On three other occasions Wong Sun and Toy went to Johnny's without bringing heroin, and smoked heroin there and obtained some for themselves.
"About" four days before the arrest—i.e., on May 31, with post-midnight events occurring on June 1—Toy gave Wong Sun $450 and, after the latter obtained the heroin, Toy phoned Johnny, and Toy and Wong Sun drove to Johnny's house at about midnight and Toy gave the heroin to Johnny in a rubber contraceptive enclosed in a small brown bag.
On the night before the arrest, before 11 p.m., Toy phoned Johnny, and the two went to Johnny's to smoke heroin for half an hour. They also obtained one "paper" for their own use later.
2. Upon the basis of further substantial evidence at the trial, both the trial judge, as trier of the fact, and the court of appeals below were clearly entitled to conclude that this confession was no mere fantasy or aberration and was properly to be weighed as evidence. The critical portion of the confession—the statement that Wong Sun transported an ounce of heroin from his source of supply to Toy on the night of May 31, 1959, and that he and Toy then transported the heroin to Yee at Yee's house at about midnight—is firmly substantiated by the discovery of 27 grams of heroin at Yee's house on the morning of June 4. That possession was attested in the separate testimony of Agent Nickoloff and by actual production of the heroin in court. No effort was made by petitioners at the trial to ascribe the heroin to any other source.
​The absence of a part of the ounce, and the division of the heroin into several containers after being brought to Yee's house in one container, substantiate the further portion of Wong Sun's confession that he and Toy had gone to Yee's house again on the night of June 3 and smoked heroin and taken one "paper" for their later use. If the entire ounce had remained in Yee's hands when the officers arrived, there would have been a question as to the source of the heroin smoked and taken by Wong Sun and Toy on the night of June 3. With the elimination of a gram, Wong Sun's confession remains consistent with the evidence delivered to the officers.
The statement in Wong Sun's confession placing Toy at Yee's house on the night of June 3, was further substantiated in Agent Nickoloff's testimony that Toy had admitted to him on June 4 that he had been at Yee's house the night before.
In addition, the separate testimony of Yee, despite his obvious hostility to the government, substantiated other facts stated in Wong Sun's confession. Yee admitted that he knew Wong Sun and he identified him in the courtroom. Consistently with Wong Sun's statements as to the recency and limited nature of his acquaintance with Yee, Yee testified that he had known Wong Sun "just this year", under the nickname "Sea Dog", and did not know whether Wong Sun was a sailor or how the nickname originated. This compared accurately, as is discussed below, with Yee's testimony concerning a longer and closer acquaintance with Toy.
​The trial court was not required to give credence to Yee's testimony that Wong Sun had not been at his house, for this testimony was impeached by Yee's own admission on the stand that he had given a contrary statement on June 9, under oath, that Wong Sun and Toy had come to his house on the night of June 1 and again on the night of June 3—the nights specified in Wong Sun's confession.
In sum, the 27 grams of heroin surrendered by Yee at Yee's house on June 4 itself attested that narcotics had been transported to the house—narcotics that cannot be legally imported and for the manufacture of which no opium can be legally imported. Wong Sun's confession, shown to be reliable by several aspects of evidence aliunde, stated that the heroin had been brought by him and Toy. Moreover, in transporting the heroin, Wong Sun was necessarily ​in possession of the heroin for a substantial interval of time sufficient to bring into effect the statutory presumption of guilty knowledge derived from possession. Petitioner's reliance (Pet. Br. 28) on United States v. Landry, 257 F. 2d 425 (C.A. 7), is misplaced. Landry's admission was rejected, not for lack of corroboration, but for its failure to prove what it sought to prove, i.e., possession (id., 431). The government there adduced an admission by the defendant that he owned the narcotics that were found in the possession of another person (id., pp. 430–431). But the statute required possession rather than ownership in order to raise a prima facie presumption of a violation. Here that issue is not present—Wong Sun's confession admitted transportation of the heroin from Bill to Toy and to Yee and a fortiori the confession admitted the possession intrinsic in such transportation.
Every necessary element of Wong Sun's offense was thus proved beyond a reasonable doubt by the procedure approved in Smith v. United States, 348 U.S. 147, 156 (supra, p. 52)—"the independent evidence to bolster the confession itself and thereby prove the offense 'through' the statements of the accused".
C. Toy's Confession and Its Corroboration
Toy's confession, unlike that of Wong Sun, shows deliberate and ingenious effort on his part to withhold some of the facts. Like the accused in Opper v. United States, supra, 348 U.S. 84, Toy obviously sought to admit only what he thought could be proved ​against him by other evidence. But the statements in his confession were sufficiently corroborated to warrant consideration of his confession as evidence. What he failed to realize was that the combination of what he admitted, together with what appeared in evidence aliunde and what was properly inferable from the totality of facts, was sufficient to prove such participation by him in a narcotics transaction as to establish his guilt beyond a reasonable doubt.
1. Toy's confession admitted the following: He first met Wong Sun, known to him as "Sea Dog", about three months before June 5, 1959, at Marysville, California, during a Chinese holiday. Toy drove him back to San Francisco. Sometime during April or May of 1959, Wong Sun asked Toy to drive him to the home of Johnny Yee, at 11th and Balboa Streets (in San Francisco) first asking Toy to phone Johnny that they were coming. Wong Sun there delivered to Johnny a paper package of heroin and, upon Toy's request, "they" gave him some which he smoked. Wong Sun paid Toy $15 for driving him to Johnny's house. Toy drove Wong Sun to Johnny's house "about 5 times altogether," each time receiving $10 or $15 and enough heroin for 3 or 4 cigarettes.
The confession indicates that the last time Toy drove Wong Sun to Yee's house was on June 2. The specific language is "last Tuesday, May 26, 1959", but "last Tuesday", whether viewed from June 5, a Friday, or June 9, a Tuesday (whichever was the date of the confession), could only have been June 2, according to the 1959 calendar. What apparently occurred when the statement was made was a too hasty ​glance at the calendar for the date—the particular date could be confused, whereas "last Tuesday" was not likely to be confused with a Tuesday 10 or 14 days in the past. Moreover, the confession continues with immediate reference to "Wednesday night, June 3", when Toy phoned Johnny that he didn't “have anything” and was coming out "pretty soon". When he arrived, Johnny gave him—"just out of friendship"—a paper of heroin sufficient for 5 or 6 cigarettes, without any money given or asked. "He has given me heroin like this quite a few tines. I don't remember how many times".
Toy had "known Hom Wei [the original informer] about 2 or 3 years but I have never dealt in narcotics with him. * * * The only connection I have now is Johnny Yee."
2. This confession was corroborated in numerous respects by substantial evidence. As in the case of Wong Sun's confession, when Toy spoke of delivery of heroin at Yee's house he was not spinning a fantasy—the testimony of Agent Nickoloff that Yee had 27 grams of heroin at his house on the morning of June 4, and the presentation of the heroin in court provided firm substantiation for this critical aspect of Toy's story. We recognize that the literal language of Toy's confession does not embody an outright statement that heroin was delivered on the particular Tuesday night. The statement is only that Toy drove Wong Sun to Yee's house on that night, but the phrasing, in its context as the account ​of the last of a series of visits to Yee's house, shows that this was another instance of delivery of heroin. The statement is preceded by the sentence, "Each time [I have driven Wong Sun to Yee's] Wong Sun gave me $10 or $15 for doing it and also, he gave me a little heroin—enough to put in 3 or 4 cigarettes". Moreover, the confession is specific that, on the first of this series of well-paid trips to Yee's house, heroin was delivered to Yee. The clear effect is that heroin was delivered at Yee's house on Tuesday night, and the supporting evidence of the federal agent attests that there was heroin at Yee's house on Thursday morning.
Various other elements of the confession were corroborated. Toy admitted a series of visits to Yee's house. It was reasonable to conclude that this admission was true in the light of Toy's very detailed familiarity with the house—as disclosed in the testimony of Agent Nickoloff as to what was said when Toy sought, on June 4, to divert the officers to Yee as the seller of narcotics.
The statement in Toy's confession specifically placing him at Yee's house on the night of June 3 was further substantiated in Agent Nickoloff's testimony that Toy admitted to him on June 4 that he had been at Yee's house the night before. Toy also stated, in his confession, that Yee gave him heroin out of friendship. The aspect of friendship was supported in Yee's testimony at the trial. He said that he had known Toy since 1951 or 1952 and that Toy and ​wife and children had been present at Yee's housewarming party (R. 20–21).
Accordingly, the confession was properly considered by the trial judge as substantiated. Despite Toy's obvious effort to exculpate himself, his cleverness in this respect, as in the case of Opper v. United States, supra, 348 U.S. 84, fell short of success. For Toy in his admissions, while seeking to paint Wong Sun as the seller and transporter of the heroin to Yee's house, admitted accepting enough heroin on June 1 for 3 or 4 cigarettes, and a bindle of heroin on June 3 "enough for 5 or 6 cigarets", to say nothing of Toy's aiding and abetting of Wong Sun in the transportation See 18 U.S.C. 2. Toy thus admitted possession of part of the heroin on June 1 and therefore was subject to the statutory presumption of guilty knowledge arising from possession of narcotics. The evidence of the amount of heroin at Yee's house on June 4 clearly corroborated Toy's admission of the availability of heroin for delivery to him at Yee's house on or about June 1.
The trial judge was not required to believe the entirety of either Toy's confession or that of Wong Sun. In Opper v. United States, supra, 348 U.S. 84, ​the admission of a payment to a government official was accepted as true but Opper's statement that this payment was only a loan was not required to be accepted. So, here, the trial judge could consistently find that, on or about June 1, Wong Sun had, at the least, transported heroin from his source "Bill", and that Toy had, at the least, possessed in Yee's house heroin, the transportation of which he had aided. This much of the confessions was sufficient proof of guilt, and (as we have pointed out) the confessions were adequately corroborated by the introduction in evidence of the 27 grams of heroin, and by the testimony of the officers and of Yee.
* ↑ In United States v. Carminati, 247 F. 2d 640 (C.A. 2), certiorari denied, 355 U.S. 883, the admission of a defendant in October 1956 to one Botto that he had supplied one Russano with heroin was held sufficiently corroborated by a statement of Russano to Botto a year before, in September or October 1955, that the defendant was his supplier. There was also a discovery of Banker's Trust Company envelopes, in the defendant's possession, of the type used in the particular narcotics conspiracy (Id., 642, 644).
* ↑ While certain remaining evidence aliunde the confession was introduced only on voir dire it may be noted here for the limited purpose of demonstrating that the district judge, as trier of the fact, was not on notice, from his additional hearing of the voir dire testimony, of anything impugning the trustworthiness of the confession. To the contrary, the voir dire testimony afforded persuasive corroboration of Wong Sun's confession. Agent Nickoloff testified that Yee, on the morning of his arrest on June 4, had named Sea Dog (Wong Sun) and Toy as the persons who had brought "the narcotics which Johnny Yee surrendered" to Yee's home approximately on the first of June (R. 90). Moreover, Toy further attested the degree of his acquaintance with Wong Sun by leading the officers to Wong Sun's home (R. 90). As to the portion of Wong Sun's confession asserting his ability to obtain heroin, the explanation appears in his prior experience—he stipulated, at the trial, that he had already been once convicted of a narcotics offense. (R. 89).
* ↑ It may be pointed out also, as with respect to Wong Sun's confession, that the district judge, as trier of the fact, was not presented with any facts in the voir dire testimony that would impugn the reliability of Toy's confession. To the contrary, on voir dire, the evidence confirmed Toy's acquaintance with Wong Sun—it was Toy who found Wong Sun's residence for the officers. And Yee confirmed, in his statement to the officers, the visit of Wong Sun and Toy to his house—it was Sea Dog "together with James Wah Toy" who had brought "the narcotics which Johnny Yee surrendered" (R. 90).
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