Appeal from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York, Dearie, J. Defendant-appellant Richard Moskowitz was convicted after a jury trial of one count of recklessly causing, in violation of federal regulations, the transportation in air commerce of hazardous materials, 49 U.S.C. app. § 1472(h)(2), one count of willfully violating federal regulations by causing the transportation in air commerce of hazardous materials, 49 U.S.C. app. § 1809(a)(1), (b), one count of possessing cocaine, 21 U.S.C. § 844, and one count of possessing heroin, 21 U.S.C. § 844. Affirmed in part and vacated and remanded in part.
Before: OAKES, Chief Judge, JOHN MINOR WISDOM*fn* and MESKILL, Circuit Judges.
Defendant-appellant Richard Moskowitz appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Eastern District of New York, Dearie, J. Moskowitz was convicted of one count of recklessly causing, in violation of federal regulations, the transportation in air commerce of hazardous materials, 49 U.S.C. app. § 1472(h)(2) (1982), one count of willfully violating federal regulations by causing the transportation in air commerce of hazardous materials, 49 U.S.C. app. § 1809(a)(1), (b) (1982), one count of possessing cocaine, 21 U.S.C. § 844 (Supp. V 1987), and one count of possessing heroin, 21 U.S.C. § 844 (Supp. V 1987). He appeals his convictions, as well as the sentence imposed under the Federal Sentencing Guidelines (codified as amended at 18 U.S.C.A. App. (West Supp. 1989)) ("Sentencing Guidelines" or "Guidelines"). We affirm in part and vacate and remand in part.
The government offered evidence to prove the following facts. On February 29, 1988, Moskowitz, Jeffrey Toffler and Denise Brookshire were freebasing cocaine at Moskowitz's apartment in New York City. Freebasing involves the smoking of cocaine after it has been heated so as to purify it. Later that day, the group moved to Toffler's apartment, where they were joined by Janelle Lilliquist. Both Moskowitz and Brookshire carried with them equipment necessary for freebasing cocaine. These items included the cocaine, a pipe, a torch and canisters of butane. Moskowitz also brought two pieces of luggage with him to Toffler's apartment, as the group planned to fly to Miami, Florida the next day. Moskowitz, Toffler and Brookshire continued to freebase cocaine that evening.
On the morning of March 1, the group, which now included Christine Dalfonso, prepared to leave for John F. Kennedy International Airport (JFK). The group anticipated taking their drug paraphernalia with them to Miami. Toffler specifically instructed Brookshire to pack the canisters of butane so that they would not have to go out to buy more once they were in Florida. Brookshire estimated that she packed over a week's supply of butane. She offered to carry the butane in her luggage because she knew how to evade airport metal detectors. On the way to the airport, Toffler assured Brookshire that the group would be able to "cook up" on the plane.
At JFK, Special Agent Joseph Reynolds of the United States Customs Service and Special Agent Richard Shields of the Drug Enforcement Administration were in line waiting to purchase tickets for Eastern Airlines Flight #977 to Miami. The agents were travelling to Miami to testify at a trial. They observed Moskowitz and Toffler waiting in line for the same flight. The agents noticed Moskowitz's ashen complexion and loud, abrasive behavior. He appeared to be under the influence of alcohol or drugs. The agents saw Moskowitz checking luggage.
On the plane, Moskowitz, Brookshire and Dalfonso were seated in row fourteen, four rows behind the agents. Toffler and Lilliquist were seated in first class. Before take-off, Moskowitz was heard moaning. A flight officer inquired if he was alright, and Moskowitz said that he had stomach pain but was taking medication.
Shortly after take-off, flight attendants detected an odor they believed to be ether in the area of row fourteen. Flight attendant George Morejon, walking up the aisle to investigate, noticed that Moskowitz was no longer in his seat. Aware of Moskowitz's earlier discomfort, Morejon walked to the rear of the plane to see if he needed assistance. In the vicinity of the lavatories, Morejon detected a strong odor he likened to burning chemicals. Pursuant to fire emergency procedures, he opened the lavatory doors. In one of the lavatories, he found Moskowitz. Moskowitz was standing holding a glass pipe filled with thick, swirling smoke.
Morejon immediately notified the cockpit crew of what he had seen, saying that there was a fire hazard. He then sought the assistance of Agents Reynolds and Shields. The agents accompanied Morejon to the lavatory, but Moskowitz was no longer there. After searching the plane and not finding him, the three returned to look in the other lavatories. Morejon again opened the doors. Moskowitz was found sitting on a toilet, fully clothed, clutching an air sickness bag with a pipe protruding from it. Morejon and the two agents all noticed the odor of something burning.
Reynolds identified himself as a federal agent and asked Moskowitz what was in the bag. Saying nothing, Moskowitz handed the bag containing the pipe to Agent Reynolds. The bag contained a round glass pipe which Agent Reynolds observed to be filled with smoke. The pipe was later found to contain traces of cocaine. Reynolds asked Moskowitz if he could look in his jacket. Moskowitz handed the jacket to the agent, who then handed it to Agent Shields. Inside the jacket Shields found a butane torch and other drug paraphernalia, The agents requested Morejon to search the lavatory. Morejon found other drug-related glassware hidden behind the walls of the lavatory.
Moskowitz was immediately arrested. Agent Reynolds read Moskowitz his rights under Miranda v. Arizona, 384 U.S. 436, 467-73, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Despite being informed of his right to remain silent, Moskowitz chose to speak, saying "can you give me a break?" and "does this mean I'm not going to Miami on vacation?" Moskowitz was handcuffed and buckled into a seat in the by then evacuated, rear section of the plane. Agent Shields stayed with Moskowitz, while Agent Reynolds moved toward the front of the plane to maintain surveillance on Moskowitz's travelling companions. Morejon testified that Moskowitz, while thus restrained, threatened him.
At some point during these events, the pilot turned the plane around to return to New York. Morejon testified that this occurred after he informed the cockpit crew of the circumstances surrounding the arrest of Moskowitz.
When the plane landed at JFK, Agent Reynolds approached Brookshire and Dalfonso, identified himself as a federal agent and asked them to accompany him to the first class section. The two followed the agent to the first class seats of Toffler and Lilliquist. Reynolds again identified himself and then informed the group that he had reason to suspect that they were carrying flammable or controlled substances. He asked to inspect their carry-on bags. Consent was given. The bags carried by Dalfonso and Brookshire were found to contain several butane torches, a butane canister, canisters of nitrous oxide and various glassware and other materials used in freebasing cocaine. A patdown of Toffler revealed an envelope containing cocaine. Removed from the plane, Toffler, Dalfonso and Brookshire were placed under arrest. More cocaine was then found on the persons of Toffler and Brookshire.
Meanwhile, Agent Shields escorted Moskowitz off the plane and placed him in the custody of the Port Authority Police.*fn1 Shortly thereafter, on the ground, Shields overheard a Port Authority police officer ask Moskowitz if he had any checked luggage. Moskowitz responded that he did not. Shields informed officers that he had seen Moskowitz checking baggage. Federal Bureau of Investigation (FBI) Agent Vincent J. McNally was also at the scene when the plane arrived at JFK. He testified that he too asked Moskowitz if he had any checked luggage, and Moskowitz answered that he did not. Subsequently the baggage checked by those arrested was located and removed from the plane, as was the carry-on luggage already searched. Later, the plane took off again for Florida.
The four arrestees were taken to the Port Authority Police airport office to be interviewed. The luggage removed from the place was also taken there. All the individuals except Moskowitz consented to searches of their luggage. A checked bag claimed by Toffler was found to contain a canister of butane.
Moskowitz, being interviewed by FBI Agent Timothy Rembijas, refused to say anything more about the incident, although he did provide some pedigree information. By this time, only two of the bags remained unclaimed. Agent Rembijas asked Moskowitz several times if the two bags were his, but Moskowitz refused to say anything. Agent Rembijas then searched the two bags. One of the bags was a gray garment bag that had been checked and which bore a baggage claim number corresponding to the baggage ticket on Moskowitz's airline ticket. In this bag Agent Rembijas found a cigarette box containing packets of cocaine and heroin. The search of the two bags occurred some three hours after the plane had landed.
Moskowitz was tried under a six count indictment that read as follows:
Count One. . . Moskowitz . . . did knowingly and willfully place and cause to be placed destructive devices and substances in [the] aircraft so that such placing and causing to be placed was likely to endanger the safety of [the] aircraft. [18 U.S.C. § 32(a)(2)]
Count Two. . . Moskowitz . . . did knowingly and intentionally intimidate and threaten George Morejon, a flight attendant of [the] aircraft, so as to interfere with the performance of his duties and to lessen [his] ability . . . to perform his duties. [49 U.S.C. app. § 1472(j)]
Count Three. . . Moskowitz did knowingly and recklessly cause the transportation in air commerce of baggage and property containing hazardous materials, to wit: approximately twenty-four canisters of nitrous oxide compressed gas and approximately ten flammable butane fuel canisters, in violation of the rules, regulations and procedures issued by the Secretary of Transportation as set forth in Title 49, Code of Federal Regulations, Sections 171 et seq. [49 U.S.C. app. § 1472(h)(2)]
Count Four. . . Moskowitz . . . did willfully violate the regulations issued by the Secretary of Transportation as set forth in 49 Code of Federal Regulations, Sections 171 et seq., by causing the transportation aboard [the] aircraft of hazardous materials, to wit: approximately twenty-four canisters of nitrous oxide compressed gas and approximately ten flammable butane fuel canisters. [49 U.S.C. app. §§ 1809(a)(1), 1809(b)]
Count Five. . . Moskowitz . . . did knowingly and intentionally possess a quantity of cocaine, a Schedule II narcotic drug controlled substance. [21 U.S.C. § 844]
Count Six. . . Moskowitz . . . did knowingly and intentionally possess a quantity of heroin hydrochloride, a Schedule I narcotic drug ...