Appeal from a judgment entered in the Eastern District of New York, Edward R. Korman, District Judge, upon a jury verdict, convicting appellant of federal narcotics offenses, following denial of his pretrial suppression motion, I. Leo Glasser, District Judge.
Timbers, Pierce, and Miner, Circuit Judges.
Jean Eddy Charleus ("appellant") appeals from a judgment of conviction entered June 8, 1988 in the Eastern District of New York, Edward R. Korman, District Judge, upon a jury verdict of guilty on charges of conspiracy to import, importation of, and possession with intent to distribute in excess of 500 grams of a substance containing cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 963, 952(a), and 841(a)(1) (1982 & Supp. IV 1986). A pretrial motion to suppress the evidence seized during a border search of appellant and his companion was denied by I. Leo Glasser, District Judge. Appellant was sentenced to three concurrent five year terms of imprisonment, to be followed by a total of four years of supervised release.
On appeal from his judgment of conviction, appellant contends that (a) the cocaine evidence should have been suppressed because there was no reasonable suspicion to justify the search and seizure; (b) he was sentenced improperly; and (c) appellant's defense of duress was established as a matter of law. The government contends that (a) the customs search was a proper routine border search, or, alternatively, it was supported by reasonable suspicion; (b) appellant was sentenced properly; and (c) the jury properly rejected the defense of duress.
For the reasons set forth below, we affirm the judgment of conviction and the sentence imposed thereon.
We set forth only those facts believed necessary to an understanding of the issues raised on appeal.
On November 3, 1987, appellant and his male companion, Jean Michel Louis ("Louis"), arrived at JFK International Airport in New York aboard American Airlines Flight 658 from Port-Au-Prince, Haiti. As the passengers were disembarking, United States Customs Inspector Stanley Moculeski ("Moculeski"), who was in uniform, noticed appellant and Louis deplaning together. Moculeski noticed that when Louis saw him in full uniform, Louis became startled and nervous, and hesitated before entering the jetway. When Moculeski saw Louis' reaction, he approached him and touched him on the back with his left hand. Moculeski immediately felt a hard lump under Louis' clothing and, after taking him to the side of the jetway and lifting up the back of his shirt, discovered packages tightly taped around Louis' back and waist containing what later was determined to be cocaine. Louis was then placed under arrest.
After recalling that Louis had been accompanied by appellant, Moculeski proceeded down the jetway to look for him. Moculeski caught up with appellant as he was on his way into the immigration check-in area. Moculeski identified himself as a United States Customs Inspector. He put his hand on appellant's back and felt a hard lump similar to the one he had felt on Louis. He had appellant stand facing a wall, lifted up the back of his shirt, and discovered packages tightly taped around appellant's back and waist containing what later was determined to be cocaine. Appellant was then placed under arrest.
Louis and appellant were taken to a small room to the side of the jetway. Moculeski informed them of their rights. He then seized the packages of cocaine taped to their bodies and various documents in their possession. The total cocaine seized approximated 6 1/2 pounds. With the consent of Louis and appellant, a controlled delivery later was attempted but it was unsuccessful.
Louis and appellant were charged in a three count indictment returned November 19, 1987 with the narcotics offenses stated in the first paragraph of this opinion. At a hearing held on January 5, 1988, Judge Glasser denied a motion to suppress the evidence seized at the airport, including the cocaine, holding that the customs inspector had conducted a proper border search. Appellant was convicted on the three counts of the indictment following a jury trial before Judge Korman and was sentenced as stated above.*fn1 This appeal followed.
For the reasons set forth below, ...