Appeal from an order entered in the United States District Court for the Eastern District of New York, John R. Bartels, J., dismissing two counts of an indictment charging the appellees with air piracy, 49 U.S.C. § 1472(i)(2), for improper venue. Reversed and remanded.
Kaufman, Chief Judge, Smith and Mulligan, Circuit Judges.
Prominent among the injuries inflicted upon the American colonists by King George III, according to the signers of the Declaration of Independence, was the despised practice of "transporting us beyond Seas to be tried for pretended offences."*fn1 This revulsion for adjudication of criminal charges in a remote region, before a jury drawn from a hostile or insouciant citizenry, was responsible for the codification of both Article III, section 2 and the Sixth Amendment to the Constitution. Today, when our vast country can be traversed in a matter of hours, these provisions stand as bulwarks against prosecutorial overreaching in forcing the defendant to answer accusations in a spatially distant and unfriendly environment. But two centuries have wrought changes in our society that have increased both the range of crimes that federal courts confront and the factors underlying the selection of the proper situs of trial. The instant case presents to us five alleged "skyjackers," a variety of malefactor of which the Founders never would have dreamed, and requires us to determine whether it is impermissible to try them in the Eastern District of New York, which embraces the busy airport at which they boarded the airplane they are charged with hijacking and is part of the major metropolitan area in which they reside and effected significant steps toward the ultimate commission of their crime. We believe that trial in that District is proper under the Air Piracy Act, and accords with the relevant constitutional policy. Accordingly, we reverse the order of the district court that dismissed on the basis of improper venue the substantive counts of the indictment, and remand the case for trial.
To the limited end of presenting the legal issue for this appeal, the parties have stipulated to the validity of a factual statement drawn from various Government affidavits introduced before the district court. While we must accept the truth of these assertions for this purpose, we wish emphatically to stress that our opinion should not be construed as an expression of views on the merits of the prosecution.
Zvonko and Julienne Busic, Peter Matanic, Frane Pesut and Mark Vlasic were indicted for the September 10, 1976 hijacking of TWA Flight 355, which was scheduled to fly from LaGuardia Airport in New York City to Chicago. During the preceding several days, pursuant to a carefully devised plan, appellee Zvonko Busic had supplied false names when purchasing five tickets for the flight at various locations in New York City, including LaGuardia Airport. Prior to embarkation he placed a powerful explosive device in a Grand Central Station locker and discarded the key in the Hudson River. The appellees boarded the aircraft with a previously prepared typewritten hijack note and several cast iron pots, which escaped confiscation by security personnel because of an ingenious ruse. By wrapping them with gift paper and ribbons, the appellees convinced the operators of the airport's metal detection devices that the pots were presents for acquaintances. In addition, prior to boarding the appellees had prepared several imitation dynamite sticks by wrapping a quantity of putty in black tape commonly used by electricians. They also had filled their luggage with political pamphlets which they intended to scatter widely by throwing them out of the aircraft as it flew over several European cities.
These were the largely unknown background facts as they existed when the flight crew closed the doors of TWA Flight 355. Shortly thereafter, but before the airplane left the ground, a passenger attempted to use a lavatory in the rear of the cabin. Prior to reaching his destination, however, he confronted Vlasic, who was blocking the aisle. Drawing the passenger's attention to a large leather bag at his feet, Vlasic uttered the following command: "Stop, do not use the lavatory, there are three bombs in this bag. This is a hijack, return to your seat." The passenger complied.
The import of Vlasic's statement was clear and correct. Scant moments later, at an undetermined point beyond the boundaries of the Eastern District of New York,*fn2 Zvonko Busic handed a note to a flight attendant for transmittal to the pilot. It read:
1. This airplane is hijacked.
2. We are in possession of five gelignite bombs, four of which are set up in cast iron pans, giving them the same kind of force as a giant grenade.
3. In addition, we have left the same kind of bomb in a locker across from the Commodore Hotel on 42nd Street. To find the locker, take the subway entrance by the Bowery Savings Bank. After passing through the token booth, there are three windows belonging to the bank. To the left of these windows are the lockers. The number of the locker is 5713.
4. Further instructions are contained in a letter inside this locker. The bomb can only be activated by pressing the switch to which it is ...