U.S. v. Cafiero

Decision Date03 November 2003
Docket NumberNo. 03-CR-10182-MEL.,03-CR-10182-MEL.
Citation292 F.Supp.2d 242
PartiesUNITED STATES of America, v. Andrea CAFIERO, Defendant.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James W. Lawson, Oteri, Weinberg & Lawson, Boston, MA, for Andrea Cafiero (1), Defendant.

Kimberly P. West, United States Attorney's Office, Boston, MA, for USA, Plaintiff.

MEMORANDUM AND ORDER

LASKER, District Judge.

Cafiero moves to dismiss the instant indictment charging defendant with interference with a flight crew under 49 U.S.C. § 46504. Cafiero contends: (1) that the Court lacks subject matter jurisdiction over the offense charge and, alternatively, that the indictment fails to state an offense under 49 U.S.C. § 46504; and (2) that the indictment was the result of prosecutorial vindictiveness.

The motion is GRANTED.

I. Facts

The facts are as set forth in the Court's Memorandum and Order of January 28, 2003. On June 5, 2002, Cafiero boarded an Air Europe flight in Cancun, Mexico, destined for Rome, Italy, without any scheduled stops. Aboard the flight, Cafiero became "disruptive and unruly." Eventually, an altercation occurred between Cafiero and the passenger next to him, which involved the two entering the galley area of the airplane. Hoping to assist, and possibly stop the spat, another passenger and some crew members intervened. As a consequence of the brawl, two passengers and one of the crew members, Nardo Pedalino, were struck.

After getting hit, Pedalino entered the cockpit to alert the Captain, Maurizio Guzzetti, of the problematic passenger, Cafiero. Guzzetti agreed to speak to Cafiero, but as he exited the cockpit Cafiero approached him and another altercation began, which resulted in Guzzetti hitting Cafiero with his fist. This knocked Cafiero to the floor of the plane. Guzzetti then asked the flight crew to tie extension belts around Cafiero's hands and feet. In spite of the fact that he was essentially "hog-tied," Cafiero continued to be "unruly." Apparently two people sat in parallel seats and kept their feet on Cafiero's body to further restrict his movements until the plane landed.

More than eight hours remained until the flight was to reach Rome, thus, worried about Cafiero's unpredictable behavior, Guzzetti resolved to make an emergency landing and to divert the plane to Logan Airport, although New York City was closer.

Forty-five minutes later, the plane landed in Boston. According to the law enforcement officers present upon landing— both Federal Bureau of Investigation officers and Massachusetts State Troopers— as the cockpit doors opened, the flight crew pushed an unruly Cafiero off of the airplane. The state police took Cafiero into custody immediately and conducted what they characterize as an inventory search. At this point the police found the black taped package on Cafiero, which tests revealed contained over 180 grams of cocaine.

Cafiero claimed that his chest, arm and side were injured by the flight crew and passengers' rough-handling. In response the police transported him via ambulance to Massachusetts General Hospital for tests. The medical test results showed that Cafiero was inebriated, but that he did not have any significant injuries. From the hospital Cafiero was transferred to the United States Courthouse, where another small bag of cocaine was found in his pants' pocket, amounting to .39 grams.

II. Procedural History

On June 5, 2002, a complaint alleging knowing and intentional possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), was issued against Cafiero before Magistrate Judge Alexander. On June 24, 2002, Judge Alexander ruled that there had been an insufficient showing of probable cause to believe that Cafiero possessed cocaine with the intent to distribute the drug in the United States, and dismissed the complaint. The following day, June 25, 2002, the government returned with a new complaint charging Cafiero with simple possession of cocaine in violation of 21 U.S.C. § 844. The parties appeared before Magistrate Judge Collings, who held that Cafiero could be prosecuted for simple possession of cocaine. An indictment was subsequently returned charging Cafiero with both simple possession and possession with intent to distribute. Cafiero was then ordered detained by Magistrate Judge Alexander.

In October 2002, Cafiero moved to dismiss the indictment for lack of subject matter jurisdiction, and also moved to suppress the cocaine seized from his person. This Court granted both of Cafiero's motions on January 28, 2003, finding that: (1) the government lacked the necessary jurisdictional nexus to prosecute Cafiero for possession with intent to distribute or for simple possession; and (2) all items seized from Cafiero were to be suppressed as fruits of a poisonous tree since the search could not be justified as a search incident to arrest, nor was Cafiero in lawful custody at the time the inventory search occurred. The government appealed both decisions, and the appeals are pending. Cafiero has remained incarcerated throughout the proceedings, since June 5, 2002.

On April 30, 2003, the government offered to forego its appeal in exchange for Cafiero pleading guilty to interfering with a flight crew and accepting a sentence of time served. Cafiero declined the offer on May 8, 2003, refusing to plead guilty to a crime over which he believed the court had no jurisdiction. The following day, the government urged Cafiero to reconsider and reiterated its offer, indicating that should he not accept, he would be indicted for interference with a flight crew. Again Cafiero declined the offer. On May 27, 2003, the FBI telephonically interviewed flight crew attendant Pedalino once more. Pedalino elaborated on Cafiero's actions during the flight. The next day, May 28, 2003, Cafiero was indicted on the present charges of interference with flight attendant Nardo Pedalino, in violation of 49 U.S.C. § 46504.

III. Cafiero's Motion to Dismiss

Cafiero makes two arguments in support of his motion to dismiss: (1) that the Court lacks subject matter jurisdiction over the offense charged; and (2) the return of this indictment and circumstances of this case constitute prosecutorial vindictiveness.

A. Subject Matter Jurisdiction

The jurisdictional question at issue is whether the offense with which Cafiero is charged took place within the "special aircraft jurisdiction of the Unites States" as defined under 49 U.S.C. § 46501(2).

The indictment charges that defendant Cafiero:

"... did, on an aircraft in the special aircraft jurisdiction of the United States, by assaulting and intimidating Nardo Pedalino, a flight attendant of the aircraft, interfere with the performance of the duties of said flight attendant, and did lessen the ability of said flight attendant to perform those duties. All in violation of Title 49, United States Code, Section 46504."

The point of contention is whether Cafiero's conduct aboard the Air Europe flight interfered with flight attendant Pedalino's "performance of his duties" within the meaning of the statute, during the time when the plane was being diverted to Boston and was in the jurisdiction of the United States.

Cafiero contends that nothing in Pedalino's statements made during the May 27, 2003 interview establishes that Cafiero interfered with the performance of Pedalino's duties through assault or intimidation after the aircraft entered the United States. Cafiero maintains that the assault on Pedalino occurred while the aircraft was in international air space, and any interference with Pedalino's performance of his duties as a result of Cafiero's conduct ended well before the plane was in United States airspace. Cafiero notes that by the time it was decided to divert the plane to Boston, he was already immobilized by being taped, bound and hog-tied, and it was two colleagues of Pedalino's and not Pedalino himself, who remained with Cafiero during the flight to Boston, keeping their feet on Cafiero to restrict his movements.

The government maintains that although Cafiero remained bound through the duration of the flight path to Boston, he nevertheless interfered with Pedalino's duties as a flight attendant because Pedalino was preoccupied with Cafiero's behavior. In Pedalino's statements to the FBI on May 27, 2003, Pedalino advised that Cafiero continued to "be nervous" and "yell and swear at the crew as the plane landed", and Cafiero "was struggling against his restraints." Pedalino also advised that he was watching the other passengers "because they were angry with what Cafiero had done, and continually made suggestions as to how Cafiero should be handled." Pedalino further stated that "he did not want to take a chance of untying Cafiero, because he thought he might act up again."

Both parties rely on United States v. Hall, 691 F.2d 48 (1st Cir.1982). In Hall, the Court of Appeals affirmed the district court's denial of defendant's motion to dismiss the indictment. The indictment alleged that the offense occurred in the Northern District of Illinois. Prior to the plane being diverted to Chicago, the defendant's conduct had been abusive, assaultive, threatening, and unpredictable. The defendant argued that no part of the offense occurred within the district of Illinois because he sat quietly in his seat during that portion of the flight. The court interpreted Section 14721 to mean "that the offense continues for at least as long as the crew are responding directly, and in derogation of their ordinary duties, to the defendant's behavior." Hall, 691 F.2d at 50. The court concluded that "even if Hall's behavior did not directly intimidate the crew until the flight reached Chicago, ... the offense lasted until he was removed from the plane." Id. The Hall court reasoned that although Hall was sitting...

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