Appeal from a judgment of conviction of the United States District Court for the Eastern District of New York entered on January 26, 1979, after a jury trial before Henry Bramwell, Judge, for knowingly delivering to Air France for transportation in foreign commerce firearms and ammunition contained in luggage without written notice to the carrier, in violation of 18 U.S.C. § 922(e).
Before Waterman, Feinberg and Mansfield, Circuit Judges.
Berdj Keuylian appeals from a judgment of the District Court for the Eastern District of New York entered on January 26, 1979, after a jury trial before Henry Bramwell, Judge, convicting him of one count of knowingly delivering to a common carrier for transportation in foreign commerce firearms and ammunition contained in his luggage without written notice to the carrier, in violation of 18 U.S.C. § 922(e).*fn1 Keuylian was sentenced to three years' imprisonment and fined $5,000; all but four months of the term of imprisonment was suspended, and he was placed on probation for five years. Reversal is sought on numerous grounds, including claims that the denial of a motion for change of venue violated appellant's due process rights and that the warrantless search of Keuylian's luggage violated his Fourth Amendment rights. Finding no merit in any of the contentions, we affirm.
Viewed in the light most favorable to the Government, the evidence established that on April 8, 1978, Keuylian went to Los Angeles International Airport, bound for Jordan. Appellant had a ticket on American Airlines Flight 002 from Los Angeles to New York, with connecting flights on Air France from New York to Paris and from Paris to Amman, Jordan. Keuylian was accompanied to the airport by his mother and his girl friend.
Keuylian's luggage consisted of four Samsonite suitcases and two garment bags; one of the garment bags was folded over the other one with masking tape holding the two together, so that there were in effect five pieces of luggage. Inside the baggage were 12 handguns, 2 rifles, and over 1,400 rounds of ammunition, some of it metal-piercing. Keuylian later admitted in his trial testimony that he had purchased most of the weapons and ammunition himself and that he packed his own luggage for the trip.
At the Los Angeles Airport appellant, before boarding the American Airlines flight to New York, checked his luggage all the way through to Amman, Jordan, but failed to give written notice to American Airlines of the presence of the firearms and ammunition in his bags as required by 18 U.S.C. § 922(e). Appellant testified at trial that he gave oral notice to the American Airlines ticket agent when he checked his bags. However, Ms. Lewandowsky, the American Airlines ticket agent on duty April 8, 1978, whose handwriting and two-letter sign assigned by the airline were on Keuylian's baggage claim tags and whose handwriting and personal validation number assigned by the airline were on Keuylian's excess baggage ticket, testified that she did not recall anyone advising her that day that he had firearms in his checked luggage. She also testified, again in conflict with the testimony of Keuylian, that she had no occasion to advise her supervisor of any passenger having reported firearms in his checked luggage.
When appellant arrived at John F. Kennedy International Airport in New York, he checked in at the Air France terminal. Although Keuylian informed the Air France ticket agent that he had five pieces of luggage which had been checked through with American Airlines, he did not advise her, either orally or in writing, that there were firearms or ammunition in the bags.
Keuylian's luggage missed the connecting flight and was therefore still at the Air France terminal at Kennedy Airport on the following day, April 9, 1978. Mary Weston, a security officer employed by Lansdel Protection Agency which had a contract with Air France, was on duty that day x-raying all checked luggage for Air France flights going overseas. As a result of her seeing what appeared to be the outline of guns in the first two bags as they were x-rayed, Mr. Kelly, security manager for Air France at Kennedy Airport, was called to the scene and brought with him Officer Clemens of the Port Authority of New York. Kelly had informed Clemens that certain luggage might contain firearms. Kelly's x-ray examination of the five pieces of appellant's luggage indicated the presence of handguns, rifles, ammunition, and what appeared to be rockets. Officer Clemens did not request the x-ray examination nor did he assist in placing the bags on the machine; however, he was able to view the x-ray monitor.
Kelly and an Air France security guard then carried all five bags to a nearby room, where they were opened by Kelly and examined. Officer Clemens again did not request that the bags be opened, nor did he open or examine any of the bags; he was present, however, while Kelly did so. When Kelly removed a handgun from the first bag, Officer Clemens asked Kelly to stop until Clemens could contact his superiors, which he did. Clemens was instructed by his superiors to inventory all the weapons after they had been removed by the Air France personnel and to take possession of them. Officer Clemens informed Kelly of these instructions. Thereafter Kelly removed all 12 handguns, the 2 rifles and the ammunition from Keuylian's luggage. Clemens prepared an inventory and took possession of the contraband, later turning it over to an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF). Kelly had informed Clemens that there were cancelled checks, photographs and other papers in the luggage, but these items were not removed; Clemens in turn informed the ATF agent.
The following day, ATF agents obtained a search warrant authorizing them to open the bags to recover "photographs, cancelled checks, deposit slips, used airlines tickets, correspondence." The search warrant was executed at the Air France terminal, where the luggage had remained overnight. The search uncovered three passport-size photographs of Keuylian and nine cancelled checks drawn on Keuylian's personal bank account in Los Angeles.
Keuylian first contends he was denied due process when the trial court declined to transfer the case to California pursuant to Rule 21(b) of the F.R.Cr.P.*fn2 Both parties agree on the basic factors to be considered by the district court in deciding such a motion for transfer: (1) location of the defendant; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) possible disruption of defendant's business if the case is not transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of the place of trial; (9) docket conditions of each district involved. See Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-44, 84 S. Ct. 769, 11 L. Ed. 2d 674 (1964); United States v. Clark, 360 F. Supp. 936, 941 (S.D.N.Y.), Petition for writ of mandamus denied sub nom. United States v. Griesa, 481 F.2d 276 (2d Cir. 1973) (per curiam). Also to be considered are "any other special elements which might affect the transfer." Platt v. Minnesota Mining & Manufacturing Co., supra, 376 U.S. at 244, 84 S. Ct. at 771, quoting from 314 F.2d 369, 377 (7th Cir. 1963) (Hastings, C. J., dissenting). The decision to transfer rests in the discretion of the trial judge. Platt v. Minnesota Mining & Manufacturing Co., supra, 376 U.S. at 245, 84 S. Ct. 769.
Judge Bramwell did not abuse his discretion in denying the motion to transfer the case from New York to California. Although defendant and his attorney were located in California, the Government attorney and the ATF case agent were in New York. New York was accessible to Keuylian, who made three plane trips from Los Angeles to Jordan during a seven-month period in 1978. Most of the events at issue occurred in New York, including the discovery of the firearms and ammunition, which were the subject of a later suppression hearing, and appellant's failure to give notice to Air France. Most of the exhibits were located in New York, especially the luggage, firearms, and ammunition. All of the suppression hearing witnesses were in New York; five of the seven Government witnesses at trial were located in New York. While Keuylian's prospective trial witnesses were all located in Los Angeles, the trial court determined that Keuylian could afford to fly them to New York. Indeed, some of these witnesses later testified at the trial in New York. The balance would not have been able, even if brought to New York, to give testimony about the particular transaction at issue on trial.
The most important factor was appellant's delay in moving to transfer the case. The indictment was filed June 23, 1978, and a plea of not guilty was entered on July 6. Defendant's motion to suppress the contraband found in his luggage was filed September 11, 1978. The Government's memorandum in opposition to the motion to suppress was filed on September 20, and defendant's memorandum in support of that motion was filed October 16. Trial had been set for October 10 but was adjourned until October 25. Trial actually began on November 1. Despite this period of more than four months from indictment to trial, the motion to transfer was not filed until October 23, 1978, virtually on the eve of trial. Granting the motion to transfer would have delayed the trial, since the case would then have had to be placed at the end of some other district court's busy criminal docket in California. Another judge and another Assistant U. S. Attorney would have had to familiarize themselves ...