U.S. v. McKenzie, 86-1833

• Decision Date: 13 May 1987
• Docket Number: No. 86-1833,86-1833
• Citation: 818 F.2d 115
• Parties: UNITED STATES of America, Appellee, v. Ralph McKENZIE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 115

818 F.2d 115

55 USLW 2678

UNITED STATES of America, Appellee, v. Ralph McKENZIE, Defendant, Appellant.

No. 86-1833.

United States Court of Appeals First Circuit.

Argued April 6, 1987.

Decided May 13, 1987.

Jose A. Fuentes-Agostini, by Appointment of the Court, with whom Troncoso & Fuentes-Agostini, San Juan, P.R., was on brief for defendant, appellant.

Jose R. Gaztambide, Rio Piedras, P.R., with whom Daniel F. Lopez Romo, U.S. Atty., and Jose A. Quiles, Asst. U.S. Atty., Hato Rey, P.R., were on brief for appellee.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Appellant Ralph McKenzie was convicted of violating 21 U.S.C. Sec. 841(a)(1) (1982) (possessing a controlled substance with intent to distribute it), Sec. 952(a) (importing a controlled substance into the United States), and Sec. 955 (possessing a controlled substance on board an aircraft arriving in the United States).

The facts as the jury might have believed them are as follows:

On May 28, 1986 Customs Inspector Roberto Quinones inspected the cargo and baggage of British West Indies Airlines ("BWIA") Flight No. 419 at the Luis Munoz Marin International Airport in Carolina, Puerto Rico. The flight had arrived from Kingston, Jamaica en route to Antigua. Supervisory Customs Inspector Pedro Marrero inspected the front cargo while Quinones inspected the rear cargo.

When an employee of the Airport Aviation Service opened the rear cargo compartment, Quinones observed a blue suitcase at the entrance. As he tried to move it to one side, he noticed that the claim ticket affixed to the suitcase had not been validated in Jamaica. The claim tag had the name of McKenzie. Quinones continued to examine the suitcase feeling both sides and noticed that one side was soft while the other was hard and heavy. The suitcase was secured with a key and a combination lock. Quinones then drilled a hole in the heavy side of the suitcase, and a green substance came out on the tip of the drill. Quinones suspected the substance to be marijuana and notified Marrero. Together they requested the BWIA station manager to attempt to locate the passenger by the name of McKenzie.

After a few minutes the BWIA manager exited the aircraft with Ralph McKenzie who was en route from Jamaica to Antigua. McKenzie admitted that the suitcase was his and opened it at the request of the inspectors. Further examination of the contents of the suitcase revealed a false bottom on one side of the suitcase made of fiberglass. The suitcase was found to contain approximately 35 pounds of marijuana.

McKenzie appeals from his conviction, raising one issue only. He argues that the evidence against him at trial was the product of an illegal search because the customs officers had no authority to search without probable cause the baggage of a citizen of a foreign country who had no intention of entering the United States. We find no merit in this contention.

Customs officials have authority to search not only the baggage of persons entering the United States from foreign countries who intend to remain there, but also that of persons temporarily in the United States "in transit" from one foreign country to another.

Appellant would have us rely on a dictum by the Fifth Circuit in the case of United States v. Pentapati, 484 F.2d 450 (5th Cir.1973). In that case the defendant arrived in Miami, Florida from Bogota, Colombia, and while going through customs, was subject to a search which netted cocaine. Defendant alleged he was outside the ambit of the federal laws against narcotics importation because he intended to depart from the United States immediately. The court upheld the conviction, concluding that "the statute looks to the fact of bringing a controlled narcotic within the territorial jurisdiction of the United States, and not to the alleged importer's subsequent plans." Id. at 451. The court went on to say, however,

We are not faced here with the case of the true in-transit passenger who is never brought under the control of the customs authorities.

Id. McKenzie contends this language created what he calls the Pentapati exception for purely in-transit passengers. As further support for such an exception, he calls our attention to dicta from the Southern District of Florida in United States v. Madalone, 492 F.Supp. 916 (S.D.Fla.1980). While the defendant there fared no better than Pentapati--he, too, was found not to have been a true in-transit passenger--the district court referred to the hypothetical case of someone

travelling from Mexico to Madrid on a flight which stopped over in Miami to take on additional passengers but which did not permit passengers from Mexico to disembark in Miami. Such Mexico-to-Madrid passengers might never have to pass through United States customs and therefore would have never come under the control of customs authorities.

Id. at 919. Appellant insists that since the stopover in Puerto Rico during his flight from Jamaica to Antigua was purely fortuitous, making him a completely in-transit passenger, he was outside the control of United States Customs and beyond the reach both of the search and this criminal prosecution.

We see no statutory basis for appellant's claim of exception, and, in regard to a prosecution for the importation and possession of controlled substances, we decline to find such an exception by implication. Two of appellant's convictions were under statutes requiring little else but a showing that a defendant has knowingly brought a controlled substance with him from abroad into the United States (21 U.S.C. Sec. 952(a)) or brought or possessed such a substance while on board an aircraft "arriving in or departing from the United States," 21 U.S.C. Sec. 955). For the purpose of these statutes, "the term United States, when used in a geographical sense, means all places and waters, continental or insular, subject to the jurisdiction of the United States." 21 U.S.C. Sec. 802(27) (Supp. III 1985). The airport where the search and seizure occurred was clearly within the jurisdiction of the United States. No statute has been called to our attention exempting from that jurisdiction such places as transit lounges or the interiors of transiting aircraft. It is established that a controlled substance is imported into the United States if brought within the nation's territorial boundaries. See, e.g., Palmero v. United States, 112 F.2d 922 (1st Cir.1940) (the words "import or bring" of the Narcotic Drugs Import and Export Act prohibit bringing the article within the territorial boundaries of the United States--within the waters or upon the lands--and does not require actual landing of the goods (quoting United States v. Caminata, 194 F. 903 (D.C.E.D. Pa.1912)); United States v. Catano, 553 F.2d 497 (5th Cir.) (a suitcase containing cocaine was found to have been "imported" into the United States, under section 952(a), when removed from an international flight and placed on a carousel at the international airport in Miami, Florida, even though it had not yet passed through customs), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977).

Appellant's third conviction was for violation of 21 U.S.C. Sec. 841(a)(1), requiring proof of possession with intent to distribute. Although appellant did not, apparently, intend to distribute the narcotics in the United States, the place of intended distribution is not important so long as such intent is established together with the fact of possession within the United States. United States v. Gomez-Tostado, 597 F.2d 170 (9th Cir.1979). Accord United States v. Montoya, ...