U.S. v. Busic, s. 383

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation592 F.2d 13
Docket NumberNos. 383,D,389,410,411,s. 383
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Zvonko BUSIC, Julienne Busic, Petar Matanic, Frane Pesut, Defendants-Appellants. ockets 77-1332, 1333, 1334, 1368.
Decision Date30 October 1978

Edward R. Korman, Chief Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., on brief), for plaintiff-appellee.

Michael E. Tigar and Pierce O'Donnell, Washington, D. C. (Williams & Connolly, Washington, D. C., on brief), for defendants-appellants Zvonko Busic and Julienne Busic.

Paul B. Bergman, New York City (Ford, Marrin, Esposito, Witmeyer & Bergman, New York City, on brief), for defendants-appellants Petar Matanic and Frane Pesut.

Before LUMBARD, FEINBERG and TIMBERS, Circuit Judges.

LUMBARD, Circuit Judge:

Zvonko Busic, Julienne Busic, Petar Matanic and Frane Pesut appeal from judgments of conviction and sentences under the Antihijacking Act of 1974, 49 U.S.C. § 1472(i), following a five-and-one-half week jury trial in the Eastern District of New York. All appellants were convicted of aircraft piracy and conspiracy to commit aircraft piracy in their takeover of T.W.A. Flight 355 en route from LaGuardia Airport to Chicago on September 10, 1976. Zvonko Busic and Julienne Busic were also convicted of the offense of aircraft piracy resulting in the death of another person, 1 a New York City Police Officer killed while attempting to defuse an explosive device which Zvonko Busic had placed in a locker at Grand Central Station.

On July 20, 1977 the trial court sentenced Matanic and Pesut each to thirty years' imprisonment on the aircraft piracy count and to a concurrent term of five years' imprisonment on the conspiracy count. On July 21, 1977 Zvonko Busic and Julienne Busic were each sentenced to the mandatory minimum term of life imprisonment for aircraft piracy resulting in the death of another person and to a concurrent term of five years' imprisonment on the conspiracy count. The court also designated that Julienne Busic be eligible for parole after serving eight years of her sentence, two years earlier than when she would otherwise become eligible under 18 U.S.C. § 4205(b)(1). This designation is the subject of the government's cross-appeal. 2

On appeal, Zvonko Busic and Julienne Busic argue that the trial court erred in refusing to dismiss for lack of jurisdiction the charge of aircraft piracy resulting in the death of another person. Zvonko Busic also contends that the court improperly excluded the proffered testimony of a psychiatrist that he was incapable of forming the requisite intent to commit the offenses charged. Julienne Busic asserts that certain items found in her flight bag should not have been admitted into evidence because they were obtained by an unlawful search. All appellants argue that the district court committed reversible error in refusing to instruct the jury on the offense of interference with flight crew members or flight attendants as a lesser-included offense of aircraft piracy. Julienne Busic, Matanic and Pesut all allege that each was denied the right to a fair and impartial trial by the improper remarks and behavior of both the trial court and the prosecution.

A majority of the court finds that each claim of error is without merit. Accordingly, all the convictions are affirmed.

The Evidence

On Friday evening, September 10, 1976 Trans World Airlines Flight 355 took off from LaGuardia Airport for Chicago. On board the Boeing 727 aircraft were seven crew members and 85 passengers, including Zvonko Busic and Julienne Busic, who were travelling as husband and wife under assumed names, and Marc Vlasic, Petar Matanic and Frane Pesut, who were separately seated on the aircraft and also travelling under assumed names. All five had boarded the aircraft pursuant to an agreement and instructions masterminded by Zvonko

Busic. Each had received a plane ticket and a package of leaflets from Zvonko Busic, along with departure-time instructions and directions not to congregate at the airport

Shortly after take-off, Zvonko Busic handed flight attendant Tom Van Dorn a sealed envelope to deliver to the captain and then proceeded to the lavatory. Inside the cockpit, Captain Carey opened the envelope and read the following note:

"One, this airplane is hijacked.

"Two, 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.

"Three, in addition, we have left the same type 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.

"Four, further instructions are contained in a letter inside this locker. The bomb can only be activated by pressing the switch to which it is attached but caution is suggested.

"Five, the appropriate authorities should be notified from the plane immediately.

"Six, the plane will ultimately be heading in the direction of London, England."

Captain Carey immediately radioed the note to T.W.A. authorities at J.F.K. International Airport in New York and then dialed the skyjack code for the air traffic control radar location center. Meanwhile, Zvonko Busic had entered the cockpit wearing an apparatus resembling three sticks of dynamite held together by electrical tape, with wires protruding from the sticks, circling his neck and leading down to a battery and an electrical toggle switch. Zvonko Busic, holding the switch with his finger on the lever, ordered Captain Carey to take the airplane toward Europe.

Captain Carey first headed for Montreal, having convinced Zvonko Busic that a refueling stop was necessary for the Boeing 727 to complete a transoceanic flight. En route, Zvonko Busic informed the captain that six hijackers were on the plane, one of whom would remain unidentified. He explained that the purpose of the hijacking would become clear when the authorities received the note accompanying the bomb in the subway locker and that upon receipt of a prearranged code word indicating the fulfillment of their demands the hijackers would surrender in Europe. Zvonko Busic also told Captain Carey that the other hijackers were then explaining their mission to the passengers and attempting to calm them with assurances that no harm was intended. At Carey's request, Zvonko Busic allowed him to announce the hijacking over the public address system.

Julienne Busic then handed out copies of the leaflets to the passengers, inviting them to read and ask questions about the propaganda and offering to help them with any special needs they might have. The leaflets sought to enlist support for a free Croatia, independent of Yugoslavia. Throughout their ordeal, Julienne Busic conversed freely with the passengers. Julienne Busic later decided which passengers would be released at the aircraft's second stopover in Newfoundland.

Petar Matanic rose from his seat when Zvonko Busic emerged from the cockpit shortly after Captain Carey's announcement. Decked out in his dynamite vest, Zvonko Busic handed Matanic a tear gas gun and ordered him to stand up at the front of the passenger section, apparently to keep watch over the cabin. Matanic, a powerfully built, six-foot three-inch, 225 pound man, did as he was told. Later he walked up and down the aisle and acted as a lavatory monitor. Like Julienne Busic, Matanic talked with the passengers throughout their ordeal, further explaining the purpose of the hijacking and some of the planning that preceded it.

Frane Pesut was ostensibly just another passenger on board the aircraft when Captain

Carey made his announcement. Shortly before the aircraft reached Montreal, Vlasic delivered an order from Zvonko Busic to Pesut that Pesut take a seat in the rear of the aircraft. Vlasic then entered the lavatory and returned with a pot, which he ordered Pesut to hold in his lap. Shortly thereafter, Zvonko Busic told Pesut that the covered pot was a bomb and that he must remain seated and hold it. Pesut did so for almost the entire trip. Pesut twice sat in the cockpit with Captain Carey for about an hour. Additionally, when a French military jet appeared alongside the hijacked aircraft over Paris, Pesut got up and drew window shades at other seats and shouted to the passengers to do the same

Throughout the flight to Europe, Zvonko Busic reminded Captain Carey that the aircraft could be blown up at any time if the demands were not met. He warned the thirty passengers released at Newfoundland that if they failed to distribute leaflets as ordered the remaining passengers' fate would be on their consciences. He spent most of the time sitting in the cockpit with the electric toggle switch in hand. Captain Carey did convince him that the plane must take refueling stops in Montreal, where he dissuaded Zvonko Busic from dropping leaflets out of the aircraft, in Newfoundland, where he succeeded in getting Zvonko Busic to release the thirty passengers, and finally in Iceland, where he persuaded Zvonko Busic to transfer the leaflets to an escorting Boeing 707 aircraft that could safely drop them over London and Paris as Zvonko Busic demanded. Without relief for some seventeen hours and forced to pilot across the Atlantic an aircraft designed and equipped only for domestic travel, Captain Carey nevertheless safely landed the aircraft in Paris.

Meanwhile, responding to the hijack note that Captain Carey had transmitted, members of the New York City Police Department Bomb Squad located subway locker 5713. The locker contained a light blue envelope and a cast iron stew pot with two wires running out from under the pot's lid and taped to the outside. Inside the blue...

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