U.S. v. Muench, s. 360

• Decision Date: 17 November 1982
• Docket Number: 279,255,D,Nos. 360,s. 360
• Citation: 694 F.2d 28
• Parties: UNITED STATES of America, Appellee, v. Michael MUENCH, Michelle Lewis and Albert Foreman, Appellants. ockets 81-1227, 81-1516, 81-1517.
• Court: U.S. Court of Appeals — Second Circuit

Page 28

694 F.2d 28

UNITED STATES of America, Appellee, v. Michael MUENCH, Michelle Lewis and Albert Foreman, Appellants.

Nos. 360, 255, 279, Dockets 81-1227, 81-1516, 81-1517.

United States Court of Appeals, Second Circuit.

Argued Oct. 25, 1982.

Decided Nov. 17, 1982.

Mark B. Gombiner, New York City (William M. Kunstler, New York City, of counsel), for appellant Michelle A. Lewis.

Richard Potack, San Francisco, Cal., for appellant Albert B. Foreman.

Alan Dressler, San Francisco, Cal. (George G. Walker, San Francisco, Cal., of counsel), for appellant Michael J. Muench.

Jane Simkin Smith, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Vivian Shevitz, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before LUMBARD, CARDAMONE and PIERCE, Circuit Judges.

LUMBARD, Circuit Judge:

Albert Foreman, Michelle Lewis, and Michael Muench appeal from judgments of conviction entered upon guilty pleas, taken before Judge Neaher of the Eastern District of New York, to the possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1976). The appellants made their pleas following Judge Neaher's denial of their motions to dismiss the indictment and to suppress the cocaine. As permitted by the terms of their plea agreements, the appellants here renew their claim that the indictment should have been dismissed and the cocaine suppressed. Muench additionally claims that he was denied the effective assistance of counsel. We find that the appellants' claims are without merit and affirm the convictions.

In November, 1980, agents of the Drug Enforcement Administration (DEA) in San Francisco learned from an anonymous caller that Kenneth Feld and four others were planning to smuggle cocaine from South America to West 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 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." Lewis and Foreman would fly from La Paz to Munich, West Germany with a stopover in New York. At New York, two persons named "Micky" and "Michael" would board the airplane with luggage tags bearing the names of defendants Lewis and Foreman. On the New York to Munich leg of the flight, the four travelers would exchange baggage tags so that when the suitcases with the cocaine went through West German customs, they would appear to belong to passengers coming from New York, rather than Bolivia. West German officials recognized Bolivia to be a source country for cocaine, and the defendants hoped by this strategem to avoid a thorough customs search of their luggage upon arrival in Munich. 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 Lewis and Foreman had made reservations on Lufthansa Airlines Flight # 493 traveling that day from La Paz to Munich via New York. The agents 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. That evening when Flight # 493 landed at Kennedy Airport 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 in accordance with procedures routinely followed in the cleaning and refueling of aircraft. This lounge is considered by U.S. Customs officials to be a "sterile" area where in-transit passengers are not required to go through U.S. Customs but may not leave the lounge until their plane is ready for reboarding.

While the in-transit passengers were waiting, customs inspectors removed the luggage from the cargo compartment of Flight # 493. They searched suitcases marked with Muench's and Evans' names and found cocaine in several false compartments in the suitcases. News of this discovery was relayed to customs agents surveilling Lewis and Foreman in the in-transit lounge. When each of the baggage claim tags of Lewis and Foreman matched those of the seized bags, the two were arrested. The news was also relayed to agents at the Lufthansa boarding area surveilling New York passengers soon to board Flight # 493. These agents arrested Muench and Evans. Feld, who had by this time already gone through customs and boarded an Eastern Airlines flight to California, was arrested prior to take-off by DEA agents aboard the plane.

Evans, Feld, Foreman, Lewis, and Muench were indicted on four counts of drug violations. After the filing of the indictment Evans died. On April 27, 1981 Judge Neaher denied the defendants' motion to dismiss the indictment. 514 F.Supp. 283 (E.D.N.Y.1981). He also denied their motion to suppress the cocaine. On May 1, 1981 Foreman and Muench, and on May 4, 1981 Lewis, pleaded guilty to Count II of the indictment, charging possession of narcotics with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Under the plea bargain the government withdrew the remaining counts of the indictment, and the defendants retained the right to appeal the denial of the motions to dismiss and suppress. Feld elected to go to trial and on May 6, 1981 was acquitted by a jury. On June 12, 1981 Judge Neaher sentenced both Muench and Foreman to five years imprisonment plus a five-year special parole term, and Lewis to an indeterminate sentence pursuant to the Youth Correctional Act. All three defendants remain free on bail pending this appeal.

Under 21 U.S.C. Sec. 841(a)(1) (1976), it is "unlawful for any person knowingly or intentionally to ... possess with intent to ... distribute ... a controlled substance." The appellants by their guilty pleas admitted, and before us do not deny, that they knowingly possessed cocaine with an intent to distribute. They nonetheless argue that for two reasons the indictment under Sec. 841(a)(1) should have been dismissed. First, they argue that possession within the meaning of Sec. 841(a)(1) does not occur unless the possessor seeks to pass through U.S. Customs or permanently to remain in the United States. Second, they argue that the intent required by Sec. 841(a)(1) is an intent to distribute narcotics within the United States. They contend that Sec. 841(a)(1) does not apply if the narcotics are intended for distribution in a foreign country. We reject those arguments because they are not supported by statute, precedent, or common sense.

We find no basis for the appellants' argument that Congress did not intend Sec. 841(a)(1) to criminalize narcotics possession by international travelers who do not go through customs and do not attempt to cross the customs boundaries of the United States. In support of their argument the appellants cite dictum in two cases, United States v. Pentapati, 484 F.2d 450 (5th Cir.1973), and United States v. Madalone, 492 F.Supp. 916 (S.D.Fla.1980). In Pentapati, the defendant, who had flown from Colombia to Miami, attempted to go through U.S. Customs and was arrested when a search revealed that he was carrying cocaine. Following his conviction for narcotics importation under 21 U.S.C. Sec. 952(a), the defendant appealed, contending that at the time of his arrest he was an international passenger in transit from Colombia to a third country, and as such could not have "imported" narcotics into the United States within the meaning of Sec. 952(a). Noting that the defendant had attempted to pass U.S. Customs, the Fifth Circuit rejected the defendant's description of himself as an international traveler and affirmed the conviction. "We are not faced here," said the court, "with the case of the true in-transit passenger who is never brought under the control of the customs authorities." 484 F.2d at 451.

In Madalone, the defendant went through U.S. Customs in Nassau, flew to Miami, and was there arrested while waiting to board a plane to Canada. Convicted of importing heroin in violation of 21 U.S.C. Sec. 952(a), the defendant argued that he was an international traveler exempt from Sec. 952(a) under Pentapati. The court affirmed the conviction, and held that upon the facts of his case the defendant could not rely upon the Pentapati dictum. The court noted that the defendant and the heroin, having already gone through U.S. Customs, could have remained in the United States upon arrival in Miami. The court did state that if Pentapati created an exception to Sec. 952, the exception might apply to a traveler on an international flight who makes a brief stopover in the United States but does not pass through customs. See 492 F.Supp. at 919.

The appellants argue that their case falls squarely under the Pentapati exception as interpreted in Madalone. They point out that Foreman and Lewis did not go through U.S. Customs and that the baggage containing the cocaine, if U.S. officials had not intervened, would have been carried unopened to West Germany. They thus ask this court to turn the Pentapati and Madalone dictum into an express holding that Sec. 841(a)(1) does not apply to a drug dealer's possession of narcotics within United States territory but outside its customs boundaries.

We decline this invitation for several reasons. As an initial matter, both Pentapati and Madalone, in relevant part, interpreted 21 U.S.C. Sec. 952(a), proscribing importation, and not Sec. 841(a)(1), proscribing possession with intent to distribute. However, as we accept the appellants' implicit assumption that cases decided under Sec. 952(a) are to some degree instructive in prosecutions under Sec. 841(a)(1), we must also take note of cases such as United States v. Catano, 553 F.2d 497, 500 (5th Cir.), cert. denied, 434...