The opinion of the court was delivered by: NEAHER
Indictment 81 CR 4(S) charges defendants in four counts with violations of federal narcotics laws arising out of the seizure of over 17 pounds of cocaine at John F. Kennedy International Airport on December 10, 1980. Count 1 charges defendants with conspiring with Miciala Evans (who is now deceased) to violate 21 U.S.C. § 841(a)(1) and alleges that as part of the conspiracy defendants "would import into the United States from places outside," and would distribute, cocaine. Count 2 charges defendants Foreman, Muench and Lewis with possession of cocaine at Kennedy Airport with intent to distribute. In count 3 defendants Foreman, Muench and Lewis are charged with importation of cocaine into the United States from Bolivia, South America. Count 4 charges that these three defendants brought and possessed cocaine on board an aircraft, in violation of 21 U.S.C. § 955.
Claiming that they "cannot be prosecuted for any crime or crimes alleged in the indictment to have taken place in this or any other federal district,"
defendants have moved to dismiss the indictment. The Court previously denied the motion orally and now supplements its decision with the following memorandum.
These facts appear from the stipulations of counsel and the testimony adduced at a hearing on defendants' motion to suppress evidence:
In November 1980, agents of the Drug Enforcement Administration ("DEA") in San Francisco, California, received information from an anonymous caller that defendant Feld and four others were planning to smuggle a substantial quantity of cocaine from South America to Germany via Kennedy Airport in New York. On December 3, 1980, the same source informed the DEA that Feld had that day flown to La Paz, Bolivia, where he would purchase approximately 20 pounds of cocaine. The informant also said that defendants Lewis and Foreman would fly to La Paz to meet Feld and receive luggage in which the cocaine would be concealed. The suitcases would bear baggage identification tags in the names of "Micky" and "Michael", the last names being unknown to the informant.
According to the informant, Lewis and Foreman would fly from La Paz to Munich, Germany, with a stopover in New York. At New York, two individuals named "Micky" and "Michael" would board the airplane with luggage bearing the names of defendants Lewis and Foreman. On the New York to Munich leg of the flight, baggage claim tags would be exchanged by the four travelers so that when the suitcases with the cocaine went through German customs inspection, they would appear to belong to passengers coming from New York, rather than from Bolivia, which was known to the Germans as a source country for cocaine. The informant said that Feld would not continue on the flight to Munich, but would switch planes at Kennedy Airport for a flight to California.
On December 10, 1980, DEA agents learned that defendants Lewis and Foreman had made reservations on Lufthansa Flight # 493 traveling that day from La Paz to Munich via New York. It was also learned that reservations on the New York to Munich leg of Flight # 493 had been made in the names of Michael Muench and Miciala Evans.
On the evening of December 10, 1980, Flight # 493 landed at Kennedy Airport in Queens, New York. According to routine procedures to allow for the cleaning of the aircraft and its refueling in safety, the passengers in transit from La Paz to Munich, including Lewis and Foreman, were removed from the plane and escorted to a lounge adjacent to the boarding ramp. "Intransit" passengers in this lounge are considered to be in a "sterile" area that they may not leave, and are not required to pass through United States Customs prior to the continuation of their international flights. It appears that defendant Foreman, however, sought permission to leave the intransit lounge, but his request was denied.
While the intransit passengers were waiting, Customs inspectors, acting on the basis of the now-corroborated information received from the informant, removed the intransit luggage from the belly of Flight # 493 to a nearby Lufthansa baggage room. There they found two pieces of luggage marked with defendant Muench's name and two pieces marked with co-conspirator Evans' name. In several false compartments in these suitcases the cocaine was discovered.
The results of this seizure, along with the baggage claim numbers of the suitcases containing the contraband, were relayed to the customs agents surveilling defendants Lewis and Foreman in the intransit lounge. When each of the baggage claim tags of Lewis and Foreman matched those of the seized bags, the two were arrested. News of the discovery of the cocaine was also relayed to DEA agents at the Lufthansa boarding area surveilling New York passengers soon to board Flight # 493. The agents approached defendant Muench and Evans and placed them under arrest.
Prior to this time, defendant Feld had disembarked from Flight # 493. Upon presenting himself for clearance through Customs, he was subjected to a thorough but unsuccessful search for contraband. Feld passed through Customs and proceeded to the Eastern Airlines Terminal where he boarded a flight for California. By this time, however, the cocaine had been discovered and DEA agents raced to the Eastern Terminal. Feld was located on board the domestic airplane and placed under arrest.
Defendants' arguments flow from their assertion that the suitcases containing the cocaine never would nor, indeed, ever could have been presented to United States Customs for clearance. While not precisely articulated, it appears that their contention has two prongs: first, that this circumstance renders the Court without jurisdiction to proceed on the indictment; and second, that the indictment fails to charge a violation of the laws of the United States. The Court is unable to accept either contention.
Turning to the matter of jurisdiction, it is well settled that a sovereign has jurisdiction to prosecute an offense against its laws even where only a part of that offense has been committed within its boundaries. United States v. Busic, 592 F.2d 13, 20 n.4 (2d Cir. 1978). See Ford v. United States, 273 U.S. 593, 619-24, 47 S. Ct. 531, 539-541, 71 L. Ed. 793 (1927). As the discussion below demonstrates, the Court is of opinion that each count of the indictment sufficiently charges a crime against the laws of the United States.
It is also clear that all defendants were within the territorial limits of the United States at the time of their arrests during the progress of the crimes alleged. See United States v. Sindin, 620 F.2d 87, 90 (5th Cir. 1980). See also United States v. Postal, 589 F.2d 862, 885-87 (5th Cir.), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 40 (1979). Since it appears that at least one part of each offense the formation of the conspiracy as well as overt acts in its furtherance at Kennedy Airport (count 1); the constructive possession of the cocaine also at the airport, see United States v. Boney, 572 F.2d 397, 401 (2d Cir. 1978); United States v. Catano, 553 F.2d 497, 500 (5th Cir.), cert. denied, 434 U.S. 865, 98 S. Ct. 199, 54 L. Ed. 2d 140 (1977)
(counts 2 and 4); and the importation of the cocaine (count 3) was ...