FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Ehsa, 24 FSM R. 536 (Pon. 2024)
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
JOHN ANSON EHSA, a/k/a JOHN EHSA, JR.,
Defendant.
CRIMINAL CASE NO. 2024-500
ORDER RE: PROBABLE CAUSE
Dennis L. Belcourt
Associate Justice
Hearing: February 16, 2024
Submitted: March 1, 2024
Decided: July 1, 2024
APPEARANCES:
For the Plaintiff:
Bethwell O'Sonis, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant:
Jesse S. Mihkel, Esq.
FSM Public Defender's Office
P.O. Box 1736
Kolonia, Pohnpei FM 96941
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A probable cause hearing is required only as a condition for imposing limitations on liberty. The hearing's purpose is not to determine whether restraint of liberty has occurred, as the existence of a restraint is a predicate for holding a probable cause hearing. FSM v. Ehsa, 24 FSM R. 536, 540 (Pon. 2024).
Designated FSM customs personnel, that suspect that mail contains articles that are subject to duty or imported contrary to law, may, without a search warrant but upon reasonable cause, open and inspect the contents of mail which has originated outside the FSM and is addressed for delivery inside the FSM. FSM v. Ehsa, 24 FSM R. 536, 540 (Pon. 2024).
Congress's apparent intent in enacting 39 F.S.M.C. 205 was to provide privacy protections when FSM postal services are used, setting as a condition to search of FSM-bound mail without a warrant that Customs personnel have reasonable cause to suspect that contents are dutiable or imported contrary to law. A search without such grounds is thus an unlawful search. FSM v. Ehsa, 24 FSM R. 536, 540 (Pon. 2024).
The FSM Supreme Court has authority to exclude evidence that has been obtained by an unlawful search or seizure, but, even if the evidence is the product of an unlawful search or seizure does not always mean that it may not be introduced into evidence because the person complaining of the search's legality must have standing. FSM v. Ehsa, 24 FSM R. 536, 540-41 (Pon. 2024).
The general rule is that a person can only complain of an unlawful search or seizure if it is his own rights which have been violated. FSM v. Ehsa, 24 FSM R. 536, 541 (Pon. 2024).
When the accused denied the parcel was for him and did not look at the addressee's name and when the parcel was sent by someone else and was addressed to the accused's mother, who was the post office box's holder, the accused lacks standing to contest the search by Customs and the national police. Since the accused lacks standing, the court need not reach the issue of whether the search was undertaken with reasonable cause to suspect the contents were dutiable or imported contrary to law. The lack of reasonable cause would support the court suppressing the parcel's contents. FSM v. Ehsa, 24 FSM R. 536, 541 (Pon. 2024).
Sealed letter class mail may not be opened merely because the sender or addressee of the mail article is known to have mailed or received contraband or merchandise in violation of law in the past, and the regulations define "letter class mail" to include packages. FSM v. Ehsa, 24 FSM R. 536, 541 n.2 (Pon. 2024).
Entrapment is a trial defense, requiring factual determinations that cannot be made before trial. FSM v. Ehsa, 24 FSM R. 536, 541 (Pon. 2024).
Controlled delivery is the lawful discovery by common carriers or customs officers of contraband in transit which presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing the container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over the container. Whether a controlled delivery is successful may determine whether a search warrant may issue concerning the premises where the item delivered is thought to end up. FSM v. Ehsa, 24 FSM R. 536, 541-42 (Pon. 2024).
39 F.S.M.C. 205(3) provides that if any designated customs person, in opening and inspecting the contents of mail finds articles which he has reasonable cause to believe are subject to duty or have been imported unlawfully, he must seize the articles for disposition in accordance with the Customs rules and regulations, which permit an item to be selected for a controlled delivery. The regulations thus contemplate controlled delivery as an option for officers to take. FSM v. Ehsa, 24 FSM R. 536, 542 (Pon. 2024).
To be guilty of intent to possess or to traffic in marihuana, an accused must knowingly or intentionally do what he is charged with respect to the marihuana. FSM v. Ehsa, 24 FSM R. 536, 542 (Pon. 2024).
"Intent" means acting with the conscious purpose to engage in the conduct specified, refrain from the omission specified, or cause the specific result, and "knowledge" means being aware of the nature of the conduct or omission or of the existing circumstances, or believing that a fact exists which brings the conduct or omission within the criminal code's provisions. "Knowledge" does not require any knowledge of the unlawfulness of such conduct or omission. FSM v. Ehsa, 24 FSM R. 536, 543 (Pon. 2024).
For somebody to knowingly possess marihuana, he must be aware that he possesses marihuana, and for one to knowingly import marijuana, he must cause marihuana to enter the country, aware that it is marihuana and that one is causing its entry. Like any other essential element, the knowledge or intent element must be proven beyond a reasonable doubt. FSM v. Ehsa, 24 FSM R. 536, 543 (Pon. 2024).
At the preliminary hearing stage, the test is whether probative elements are supported by probable cause, and probable cause exists when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. It is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautions man to believe that the accused is guilty of the offense, exists. FSM v. Ehsa, 24 FSM R. 536, 543 (Pon. 2024).
Evaluating evidence in a probable cause hearing entails viewing the evidence and reasonable inferences therefrom in the light most favorable to the prosecution. FSM v. Ehsa, 24 FSM R. 536, 543 (Pon. 2024).
Hearsay from the police, or other government agencies involved in law enforcement, should not be treated the same as hearsay from an unknown informant or an anonymous tip. In short, who the declarant is affects how the court weighs credibility behind the allegations supporting probable cause. FSM v. Ehsa, 24 FSM R. 536, 544 (Pon. 2024).
When the evidence and information strongly support that the accused actually possessed marihuana; when, on one hand, there may be a permissive inference that the accused knew what was in the package, but the lack of indication that the package contained contraband as it entered the accused's possession, weakens that inference; and when, on the other hand, the combination of what limited inference there is as to knowledge based on possession, a prior history of the P.O. box involved, and the apparent lack of credibility in accused's narrative, there is probable cause that he knowingly or intentionally possessed marihuana and that he was an importer of marihuana. FSM v. Ehsa, 24 FSM R. 536, 544 (Pon. 2024).
An "importer" is any person by or for whom any goods are imported, and includes the consignee and any other person who is beneficially interested in the goods. FSM v. Ehsa, 24 FSM R. 536, 544 n.7 (Pon. 2024).
Factors which may give rise to a reasonable inference that the accused had the specific intent to distribute or deliver include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the accused's possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. FSM v. Ehsa, 24 FSM R. 536, 544 (Pon. 2024).
When the court has already found probable cause based on importation, but there is no indication of prior distribution by the accused, no paraphernalia, and the quantity may be consistent with distribution but also not inconsistent with personal use only, it is a close call, but the court will not dismiss the trafficking count for lack of probable cause. FSM v. Ehsa, 24 FSM R. 536, 544 (Pon. 2024).
Since marihuana, a controlled substance, is defined as an injurious substance, there is probable cause for a mailing-of-injurious-substances charge when, although there is no evidence that the accused deposited the parcel in the mail in the country from which it originated, the basis for the violation is that the accused knowingly caused the parcel to be delivered by mail by requesting the sender to send the parcel. FSM v. Ehsa, 24 FSM R. 536, 544 (Pon. 2024).
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DENNIS L. BELCOURT, Associate Justice:
On February 16, 2024, this Court held a probable cause hearing in this matter. The hearing was set after Plaintiff filed an unopposed motion on January 15, 2024 requesting the hearing. Plaintiff was represented by Assistant Attorney General Bethwell O'Sonis. Defendant was present and represented by attorney Jesse Mihkel of the Public Defender's Office. Plaintiff put on the stand one witness, Sgt. Jacky Smith, and rested. The Defendant testified. At Defendant's request, a date was set for a continuation of the hearing for him to call additional witnesses. Subsequently, at Defendant's request, the continuation of the hearing was vacated and this Court issued on order directing the parties to submit written closing argument no later than March 1, 2024.
Defendant filed a brief containing his closing argument, contending probable cause is lacking, the search of the parcel was unlawful, that he was a victim of entrapment, and that the charges should be dismissed. Plaintiff, on the other hand, filed a brief in which he requests argues that the purpose of the probable cause hearing is to determine whether the liberty of the defendant is restrained. As the focus of the hearing was whether there was probable cause, not whether there is a restraint on Defendant's freedom, Plaintiff argues for denial of the motion to dismiss.
A probable cause hearing is required only as a condition for imposing limitations on liberty. FSM v. Wainit, 10 FSM R. 618, 622 (Chk.2002). The purpose of the hearing is not to determine whether restraint of liberty has occurred, as the existence of a restraint is a predicate for holding a hearing. Court has ordered restraint of his liberty at the initial appearance, when this Court, Associate Justice Wentworth presiding, ordered the imposition of travel and other restrictions on Defendant. For these reasons and because Plaintiff did not oppose the motion for a probable cause hearing until after the hearing was held, I do not sustain Plaintiff's objection to the probable cause hearing.
1. Background
The Information filed on January 13, 2024 charges Defendant with three counts: possession, in violation of 11 F.S.M.C. 1142, trafficking in violation of 11 F.S.M.C. 1141, and mailing of injurious substances in violation of 39 F.S.M.C. 228(6). The basis for all three counts, as set forth in the Information and Affidavit of Probable Cause, and testimony was that Defendant received a parcel in the mail that contained, among other things, five plastic bags of marihuana rolled into joints, which weighed a total of 183 grams (approximately 6.5 ounces). The parcel was addressed to Defendant's mother, Meriu Ehsa, at a post office box in her name (2756), purportedly sent to her by a person named Valerio Santos. On January 11, 2024, prior to Defendant picking up the parcel, Customs and Tax Officers opened the parcel and, along with National Police inspected it, finding the marihuana and other contents. They then resealed the parcel and returned it to the post office. Defendant picked it up the next day and carried it to his car, where he was arrested, the package sitting in the passenger seat next to him. Defendant denied that the parcel was for him, stating that he was picking it up for his mother.
2. Unlawful Search/Violation of Statute (39 F.S.M.C. 205)
Defendant argues that the Government lacked reasonable cause as required by law. Section 205 of title 39 of the FSM Code states in pertinent part that
Designated customs personnel of the Federated States of Micronesia Department of Finance, Revenue Division, may, without a search warrant but upon reasonable cause to suspect that mail contains articles that are subject to duty or imported contrary to law, open and inspect the contents of mail which has originated outside the Federated States of Micronesia and is addressed for delivery inside the Federated States of Micronesia. . . .
Id. (emphasis added).
The apparent intent of the Congress in enacting section 205 of title 39 was to provide privacy protections when they use FSM postal services, setting as a condition to search of FSM-bound mail without a warrant that Customs personnel have reasonable cause to suspect contents that are dutiable or imported contrary to law. A search without such grounds is thus an unlawful search. This Court has authority to exclude evidence that has been obtained by an unlawful search or seizure. 12 F.S.M.C. 312. FSM v. Tipen, 1 FSM R. 79, 92 (Pon. 1982).
According to Sgt. Smith's Affidavit of Probable Cause, Customs and Tax Officer Manuel had stated that the inspection was "due to multiple intercepts of Prohibited Substances associated with Postal Box number 2756." Defendant argues that a prior delivery of marihuana through the same post office box did not support reasonable cause to suspect that every single parcel coming through the box contains contraband.
That evidence is the product of an unlawful search or seizure does not always mean that it may not be introduced into evidence. The person complaining of the legality of the search must have standing:
The general rule is that a person can only complain of an unlawful search or seizure if it is his own rights which have been violated. In this case there is no showing that Skico had ownership or a possessory right to the bridge where the documents were found, or that Skico was the owner of the documents themselves.
FSM v. Skico, Ltd. (I), 7 FSM R. 550, 553 (Chk. 1996).
In testimony under oath at the probable cause hearing, Defendant denied the parcel was for him and did not look at the name of the addressee. Sgt. Smith stated the parcel was sent by Valerio Santos, addressed to Meriu Ehsa, Defendant's mother and the holder of the post office box. Under these facts, applying the general rule stated in Skico, Defendant lacks standing to contest the search by Customs and the National Police.1 Since Defendant does not have standing, this Court need not reach the issue whether the search was undertaken with reasonable cause to suspect contents that are dutiable or imported contrary to law, the lack of which would support this Court suppressing the marihuana.2
3. Entrapment
Entrapment is a trial defense, requiring factual determinations that cannot be made before trial. FSM v. Semwen, 18 FSM R. 222, 225 (2012) (Most defenses, such as self-defense, insanity, and entrapment require factual determinations" that make pretrial disposition inappropriate.). This Court will reserve ruling on this defense until trial.
4. Unlawful Disposition of Contraband
Defendant also suggests that the Government acted unlawfully when it repackaged the parcel with the marihuana and returned it to the post office for whoever was going to pickup the package to do so, which the Government called "controlled delivery."
The concept of controlled delivery has been described as follows:
The lawful discovery by common carriers or customs officers of contraband in transit presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing the container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over the container.
Illinois v. Andreas, 463 U.S. 765, 769-73, 103 S. Ct. 3319, 3323-25, 77 L. Ed. 2d 1003, 1009-11 (1983).
Whether a controlled delivery is successful may determine whether a search warrant may issue concerning the premises where the item delivered is thought to end up. State v. Mullen, 348 P.2d 619, 625 (Kan. Ct. App. 2015).
Defendant, characterizing the above practice as deceitful, also argues it is illegal under 39 F.S.M.C. 205(3), which provides that
if any designated customs person, in opening and inspecting the contents of mail pursuant to this section, finds articles which he has reasonable cause to believe are subject to duty or have been imported unlawfully, he shall seize the articles for disposition in accordance with the rules and regulations authorized to be promulgated by section 206 of this chapter.
(emphasis added).
An action by an officer seizing the marihuana for disposition contrary to rules and regulations so promulgated would be unlawful. I next turn to the Regulations For Customs Inspection of FSM Mail, adopted by the Secretary of Finance and signed by President Nakayama on May 4, 1987, to determine whether they prohibit controlled delivery. It appears they do not. In those regulations, it is stated: "[i]f the item is not selected for a controlled delivery, the item shall be stamped with the appropriate Customs endorsements . . . ." Section 6(g)(4). In other words, the regulations adopted pursuant to section 206 of title 39 contemplate controlled delivery as an option for officers to take.3
5. Lack of Knowledge as Lack of Probable Cause
Defendant claims that he lacked knowledge or intention to possess or traffic in marihuana. Defendant is correct that, to be guilty of either crime, he must "knowingly or intentionally" do what he is charged with respect to the marihuana. 11 F.S.M.C. 1141(1)4 and 11 F.S.M.C. 1142(1).5
"'Intent' means acting with the conscious purpose to engage in the conduct specified, refrain from the omission specified or cause the specific result." 11 F.S.M.C. 104(4). "'Knowledge' means being aware of the nature of the conduct or omission or of the existing circumstances, or believing that a fact exists which brings the conduct or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such conduct or omission." 11 F.S.M.C. 104(5). For somebody to knowingly possess marihuana in violation of 11 F.S.M.C. 1142, he must be aware that he possesses marihuana. For one to knowingly import marijuana, in violation of 11 F.S.M.C. 1141, causing marijuana to enter the country, aware that it is marijuana and that one is causing its entry.6
Like any other essential element, the knowledge or intent element must be proven beyond a reasonable doubt. Alaphonso v. FSM, 1 FSM R. 209, 224 (App. 1982). The test at this stage, however, is whether probative elements are supported by probable cause.
"Probable cause exists when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation." FSM v. Wainit, 10 FSM R. 618, 621 (Chk. 2002). "Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautions man to believe that the accused is guilty of the offense, exists." II J. of Micro. Con. Con. 774. Evaluating evidence in a probable cause hearing, similar to the determination of a motion for acquittal pursuant to FSM Criminal Rule 29, entails "viewing the evidence and reasonable inferences therefrom in the light most favorable to the prosecution." Andohn v. FSM, 1 FSM R. 433, 438 (App. 1984); People v. Taylor, 655 P.2d 382, 384 (Colo. 1982). Hence, against Defendant's own testimony, I must nevertheless look at the evidence (and information) with that in mind.
Thus, while the ultimate burden of proof in a criminal case is on the prosecution to show guilt beyond a reasonable doubt, the prosecution need only establish probable cause need only be sufficient by evidence or sufficient that a reasonable person could find that the crime was committed and that the accused is guilty by a preponderance of evidence.
The testimony and affidavit appear consistent that at the time Defendant took possession of the marihuana, it was contained in a parcel the outward appearances of which did not give any indication that it contained marihuana. He picked it up from the post office and did not open it and did not have the opportunity to do so. The package was addressed to Defendant's mother, Meriu, who was not expecting a parcel from Kansas but was expecting a package from Hawaii. The package was purportedly from Valerio Santos. Meriu told Sgt. Smith that she did not know a "Valerio Santos" but Valerio was her son's name, and Santos was his wife's maiden name. Defendant had just been to the United States the week before, although he states he was in Oklahoma and Arkansas, not Kansas. There was at least one recent encounter in which marihuana came through the same post office box. When asked whether, if it was not him, was it his mother who was receiving the marihuana in the package, Defendant contended that it was not his mother, and that he was being set up.
Defendant objects to reliance on hearsay evidence when "when competent evidence is readily available from perceiving witnesses . . ." FSM v. Kimura, 19 FSM R. 630, 634 (Pon. 2015). That is not a hard and fast test. "Ultimately, hearsay from the police, or other government agencies involved in law enforcement, should not be treated the same as hearsay from an unknown informant or an anonymous tip. In short, who the declarant is affects how the court weighs credibility behind the allegations supporting probable cause." Id. at 636.
The evidence and information strongly support that Defendant actually possessed marihuana. The showing of Defendant's knowing possession of marihuana is less substantial. On one hand, while there may be a permissive inference that Defendant knew what was in the package, People v. Rivera, 161 Misc. 2d 237, 612 N.Y.S.2d 782 (1994), the lack of indication of the package containing contraband when it entered Defendant's possession, weakens that inference. On the other hand, the combination of what limited inference there is as to knowledge based on possession, a prior history of the P.O. Box involved, the apparent lack of credibility in Defendant's narrative—pointing in the direction of his mother, Meriu, that it was her box and her parcel, but, conveniently, couldn't be her marihuana, so there is a set-up—and the conflation of names of Defendant's brother and sister-in-law on the envelope. I find based on the foregoing that there is probable cause that he knowingly or intentionally possessed marihuana.
I find a probable cause basis that Defendant trafficked in the marihuana, in violation of 11 F.S.M.C. 1141(1), as an "importer," as the foregoing evidence and information give rise to a reasonable inference that the marihuana was mailed by Valerio to him "on Defendant's behalf."7
Less clear is whether there is probable cause for trafficking in the form of possession with intent to deliver. In Kallop v. FSM, 4 FSM R. 170, 177 (App. 1989), the appellate division upheld the finding of a permissive inference that the defendant, in possession of 2.2 lbs. of marihuana, "that the possession of such a large amount effectively establishes that the defendant was not holding it to use it himself, but in fact was intending to market or traffic in marijuana." Id. at 177. Here, the quantity of marihuana involved is less than one-fifth of the amount in Kallop.
Turning to other jurisdictions for further guidance, "[f]actors which may give rise to a reasonable inference that defendant had the specific intent to distribute8 include 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant's possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute." State v. Kelly, 800 So. 2d 978, 983 (La. Ct. App. 2001).
Applying the above authority, there is no indication of prior distribution by Defendant, no paraphernalia, packaging and quantity that may be consistent with distribution but no showing that they are inconsistent with personal use only. It is a close call. As I am finding probable cause based on importation, I do not dismiss the trafficking count.
The third count, mailing of injurious substances in violation of 39 F.S.M.C. 228(6), marihuana, a controlled substance, is an injurious substance as defined 39 F.S.M.C. 228(1). There is no evidence that he deposited the parcel in the mail in the United States, from which it originated. Therefore, the only basis for a violation is if Defendant knowingly caused the parcel to be delivered by mail. On the evidence and information, there is probable cause for Defendant to have requested the sender, Valerio, to have sent the parcel.
I find probable cause for the three counts and deny Defendant's request for dismissal.
_______________________________Footnotes:
1 Skico refers to but finds inapplicable Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960) (overruled in United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980)), which carved out an exception to the general rule in instances in which the defendant was charged with a crime an essential element of which is possession of the seized article. Under that circumstance, standing is assumed based on the charge of possession. The purpose of the Jones rule was to avoid forcing defendants to offer incriminating evidence of their possessory interest in the seized article at a suppression hearing, to vindicate their rights under statute or the Constitution, and then face the prospect, if their suppression motions fail, of having the evidence they offered at the hearing convict them of the crime. While I agree in principle with the Jones rule, I find that it does not apply in instances such as this, where Defendant has testified under oath denying that the parcel was for him. On the fact of his sworn testimony that the package was not his, this Court will not assume Defendant had standing to object to the search of the parcel.
2 It is stated at page 14 in the Appendix to the Regulations For Customs Inspection of FSM Mail adopted pursuant to 39 F.S.M.C. 206 that "sealed letter class mail may not be opened merely because: . . . 6. The sender or addressee of the mail article is known to have mailed or received contraband or merchandise in violation of law in the past." Those regulations define "letter class mail" to include packages. Section 2(c). Violation of the regulations is a basis for disciplinary action. Section 14.
3 Even if the regulations did not allow controlled delivery, it would not necessarily follow that Defendant is entitled to acquittal.
4 11 F.S.M.C. 1141(1) was most recently amended to read as follows:
(1) Except as authorized by this chapter, it shall be unlawful for any person knowingly or intentionally:
(a) to import, export, manufacture, deliver, or possess with intent to manufacture, deliver, or dispense, a controlled substance; or
(b) to create, distribute, or possess with intent to deliver, a counterfeit controlled substance.
5 11 F.S.M.C. 1142(1) reads as follows:
(1) It is unlawful for any person knowingly or intentionally to possess a controlled substance, unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.
6 11 F.S.M.C. 1141 was most recently amended (by Public Law No. 21-08) to read as follows:
(1) Except as authorized by this chapter, it shall be unlawful for any person knowingly or intentionally:
(a) to import, export, manufacture, deliver, or possess with intent to manufacture, deliver, or dispense, a controlled substance; or
(b) to create, distribute, or possess with intent to deliver, a counterfeit controlled substance.
7 54 F.S.M.C. 212(19): "Importer" means any person by or for whom any goods are imported, and includes the consignee and any other person who is beneficially interested in the goods.
8 "Deliver" is included in the definition of include "distribute." 11 F.S.M.C. 1112(9).
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