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April 9, 1981

Francesco CUTAIA and Vittorio Mirabili, Defendants

The opinion of the court was delivered by: NICKERSON


Defendants Francesco Cutaia and Vittorio Mirabili move to dismiss each count of a three-count superseding indictment on the ground that the statutory provisions charged do not apply to the conduct alleged, and to suppress all statements by defendants and all evidence seized through searches of their persons or property, on the ground that the statements and evidence were obtained in violation of defendants' rights under the Fourth and Fifth Amendments.

 Count One charges that defendants violated 18 U.S.C. § 1001 by falsely stating to an official of the Customs Service that they were not taking in excess of five thousand dollars out of the United States although they were in fact taking $ 435,000. Count Three charges that they violated 31 U.S.C. §§ 1058 and 1101 by transporting or causing to be transported approximately $ 435,000 from the United States without filing a report with the Customs Service at the time of their departure. Count Two charges a conspiracy to commit the crime charged in Count Three.

 The counts of the indictment are sufficient on their face. However, defendants have waived a jury trial, and in order to determine the suppression question the court was required to decide the critical issues bearing on the merits of the prosecution. Most, if not all, the evidence which would be adduced at trial was developed at the suppression hearing, and hence the court determines the sufficiency of that evidence to sustain the charges.

 The evidence established the following facts.

 On November 25 and 26, 1980, agents of the Drug Enforcement Administration (DEA) observed Cutaia and Mirabili in the vicinity of the New York Sheraton Hotel in Manhattan in the company of a person later identified as Domenico Cefalu. On the morning of November 27, 1970 Cutaia and Mirabili, who had been occupying the same room at the hotel, checked out, and went to the Howard Johnson's Hotel at John F. Kennedy Airport, registering at about 1:00 P.M. in Room 518.

 At about 5:40 P.M. of the same day, Cefalu came to the Howard Johnson's Hotel, took two burgundy colored suitcases from the trunk of the car in which he arrived, and registered in Room 621. He asked the clerk for the room number of Cutaia and Mirabili. At about 6:00 P.M. they came to Cefalu's room, stayed about twenty five minutes, and then left.

 At about 7:50 P.M. Cutaia and Mirabili left the hotel in one of the hotel vans and went to the TWA terminal where both presented tickets and booked flight on TWA Flight 880 to Athens, Greece, scheduled to leave at 6:30 P.M. the following evening, November 28, 1980. The agent gave them seat assignments and boarding passes. Cutaia asked the procedure for checking baggage, and the agent explained that a passenger can check baggage as early as six hours before departure. Cutaia replied that that was good as they wished to check their baggage before flight time and do some shopping or business in the city. The conversation was carried on in a mixture of English, Spanish and Italian. Defendants then returned to the Howard Johnson's Hotel at about 9:30 P.M.

 At about 10:00 P.M. Cutaia went back to Cefalu's room 621, and did not leave until some time after 2:00 A.M. the next morning, November 28, 1980. At about 10:30 A.M. of that morning Cutaia returned to Cefalu's room and stayed about one half hour. At about 2:30 P.M. Cefalu left the room carrying the two burgundy colored suitcases and an attache case. He went by cab to the TWA terminal of the airport. There he gave the bags to a skycap who tagged them for flight 880 departing at 6:30 P.M. and put them on a conveyor belt to be taken to the basement of the terminal. In order to check the bags with the skycap, Cefalu was required to have a ticket for the flight. The court finds that he presented Cutaia's ticket to the skycap. After he gave the bags to the skycap Cefalu remained in the area of the terminal.

 At about 3:00 P.M. Cutaia and Mirabili left their room at the hotel with about eight pieces of baggage, checked out, and proceeded by the hotel's van to the TWA terminal. On the sidewalk they approached a skycap who asked them in English if they were going to check their bags. Cutaia responded in the affirmative, and the skycap asked for their tickets. Mirabili handed over his ticket. The skycap then asked Cutaia for his ticket. Cutaia stated that he did not have one and that only Mirabili was going to travel. The skycap then said that there were too many bags to be checked on one ticket, and that if they wished to check all the bags an extra tariff would have to be paid. Cutaia said that that would present no problem and that they would take care of it. Both the skycap and Cutaia talked English. The skycap then tagged two of the bags, and both defendants went with the other bags into the terminal where they made arrangements to make extra payment.

 Defendants then went to the coffee shop in the terminal and sat down. Cefalu, with his attache case, was seated some seats away from them. After a few minutes he came over, sat down with defendants for a few minutes, and engaged in conversation with them. It must have been at that time that Cefalu returned Cutaia's ticket to him. Cefalu then left the coffee shop and went down to the main waiting room and watched the board on which information as to the flights was displayed. After a while defendants came to the same waiting room but did not sit down with Cefalu. He left the terminal a few minutes after 4:00 P.M. At about 5:25 P.M. defendants left the main waiting room, went through the security check point, and proceeded out the tunnel to a seating area adjacent to the gate from which flight 880 to Athens was scheduled to depart.

 In the meantime agents of the DEA and customs officials had gone to the basement and taken the two burgundy colored bags to a conference room. There a customs agent opened them and discovered a few clothes on top of stacks of United States currency, to a total of $ 435,000.

 At about 6:00 P.M. a customs inspector, Daniel S. McDonald, on instructions, went to the departure area where defendants were sitting. He announced to those seated there that as a customs inspector he would be asking them questions and giving them information pertaining to their flight. He then commenced to interview various people present. After talking to a few others in the vicinity of defendants he approached them, introduced himself, informed them that when leaving the United States with currency or monetary instruments of more than $ 5000 they were required by law to fill out a certain customs form, and showed them form 4790. Mirabili responded "no comprende". McDonald again went through the same information slowly in English and received the same response from both Cutaia and Mirabili.

 At McDonald's request another customs official sought out someone in the terminal who spoke Italian and returned with a man named Doda Micakovic, who was waiting for a TWA flight to Detroit, Michigan, and had told the official he spoke "a little bit" of Italian. He was a Yugoslav native but had worked as a construction worker in Italy from October 1971 through December of 1972. While in Italy he ...

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