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Transportation andTerrorism

The Transportation Security Administration: Fighting Terrorism at OurNation's Transportation Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

By Jay N. Lerner and Stephen E. Brundage

The Criminalization of Air Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5By Jeff Breinholt

Air Bombings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12By Jeff Breinholt

Skyjacking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18By Jeff Breinholt

A Smokescreen for Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30By D. Scott Broyles and Martha Rubio

Bolstering Cargo Container Security: How U.S. Attorneys' Offices CanMake a Difference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Stephen E. Flynn and Peter Hall

January 2004Volume 52Number 1

United StatesDepartment of JusticeExecutive Office for

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In This Issue

JANUARY 2004 UNITED STATES ATTORNEYS ' BUL LET IN 1

The Transportation SecurityAdministration: Fighting Terrorism atOur Nation's Transportation FacilitiesJay N. LernerDeputy Chief Counsel for CriminalEnforcementTransportation Security Administration

Stephen E. BrundageAttorney-Advisor, Criminal EnforcementDivisionTransportation Security Administration

I. Introduction

The events of September 11, 2001,undoubtedly shocked the nation. In the post-9/11era, the United States Government is focusingenormous time, energy, and resources on fightingterrorism on all fronts, both domestically andinternationally. Numerous laws were enactedaimed at strengthening the Government's ability tocombat terrorism. In the wake of the horrificevents, certain vulnerabilities in our nation'shomeland protection and security werehighlighted. One such area was the country'stransportation systems, particularly aviation.

To address such vulnerabilities, Congresspassed, and the President signed into law, theAviation and Transportation Security Act, Pub. L.No. 107-71,§ 101, 115 Stat. 597 (2001). Inaddition, following the events of September 11,2001, the American public demanded additionalinvestigative resources to enhance airport securityand law enforcement. As a result, certain lawenforcement responsibilities were assigned to theTransportation Security Administration (TSA). Id.

The Aviation and Transportation Security Act(ATSA) is the organic statute that establishedTSA. Its legislative history demonstrates thecountry's dissatisfaction with prior enforcementefforts in the area of aviation security. H.R. CONF.REP. NO. 107-296, at 1 (2001). As a result, TSA'smandate is to improve security of theUnited States' transportation systems andfacilities, as well as minimize the risks of anotherterrorist tragedy in the transportation sector. Quitesimply, TSA has the sole mission to protect thenation's transportation systems to ensure freedomof movement for people and commerce.

II. The Transportation SecurityAdministration: Its origins, structure, andgoals

A. Origins of the Transportation SecurityAdministration

TSA has redefined aviation and transportationsecurity over the past twenty-three months. This isno small task, given that more than 620 millionpassengers and 1 billion pieces of luggage passthrough United States airports annually.Nevertheless, the agency has operated under theguiding principle of "Excellence in public servicethrough: Integrity, Innovation, and Teamwork."http://www.tsa.gov/public/display?theme=7&content=44.

During this time frame, TSA hasaccomplished the following:

• Recruited, hired, trained, and deployed asecurity screening workforce for the entirenation;

• Instituted screening procedures for allpassengers and baggage boarding aircraft;

• Installed explosive detection devices in nearlyall the nation's airports;

• Hardened airplane cockpit doors;

• Trained and deployed federal flight deckofficers;

• Developed K-9 explosive units nationwide;

• Initiated enhancements to the Computer-Assisted Passenger Pre-screening System; and

• Began development of nationalTransportation Worker Identification Card(TWIC).

B. Organizational structure of TSA

When initially created and authorized, TSAwas a component agency of the United StatesDepartment of Transportation. However, upon theestablishment of the Department of HomelandSecurity, TSA became an integral part of ournation's homeland defense under the Secretary ofHomeland Security.

2 UNITED STATES ATTORNEYS' BUL LET IN JANUARY 2004

TSA headquarters

The senior leader of TSA is ActingAdministrator David Stone. Acting AdministratorStone is supported by Deputy AdministratorStephen McHale, Chief of Staff Carol DiBattiste,Chief Operating Officer Vice Admiral JohnShkor, and Chief Logistics Officer Gale Rossides.In particular, the Chief Operating Officer overseesfour primary divisions: Aviation Operations,Maritime and Land Operations, Intelligence, andPolicy.

Each division is operated by an AssistantAdministrator. The largest division, by far, isAviation Operations, as it has been the primaryfocus of TSA for the past year. This division isresponsible for the day-to-day operations of thenation's airports, including screening ofpassengers and baggage, law enforcement, andcivil enforcement actions, pursuant to aviationsecurity regulations through an administrativeprocess.

TSA field operations

TSA maintains a robust and vital field structure atthe more than 400 airports nationwide, and theFederal Security Director (FSD) is responsible forall security operations at these airports. There are158 FSDs, covering the nation's largest (CategoryX and I) airports and the geographic regionaround them. Many FSDs have extensivebackground and experience as law enforcementofficers.

The Administrator has delegated most of hisdaily operational responsibilities to the FSDs atthe airports (through the Assistant Administrator).The FSDs routinely work with federal, state, andlocal law enforcement and public safety agencies,to ensure the best protection possible at theirairports. FSDs generally have three AssistantFederal Security Directors designated for thefollowing areas: law enforcement, regulations,and screening. The FSDs rely heavily upon theirstaff and a professional cadre of highly trainedsecurity screeners. The FSD in each jurisdictioncan be located at:http://www.tsa.gov/interweb/assetlibrary/FSD_Contact_List.xls.

TSA Office of Chief Counsel

In order to support an agency of this size,TSA maintains a strong Office of Chief Counsel(OCC) that addresses a variety of legal issues andmatters. TSA OCC is comprised of attorneys fromvarious federal and state government agencies, aswell as the private sector. There are approximatelysixty TSA Field Counsel covering the geographic

regions surrounding the nation's thirty largestairports.

The OCC at headquarters is made up of sevendivisions specializing in certain areas of the law:

• Criminal Enforcement;

• Civil Enforcement;

• Litigation (primarily Employment andTort/Liability litigation);

• Regulations;

• Procurement;

• General Law (Ethics, Information/Privacy,and Personnel); and

• Operations (Administrative Functions,Legislation, and International Law).

United States Attorneys are most likely tointerface with Field Counsel (many of whom haveextensive criminal law and law enforcementbackgrounds) in local jurisdictions and/or theCriminal Enforcement Division in Washington,D.C.

The Criminal Enforcement Division (OCCCriminal Enforcement Division) is headed by aDeputy Chief Counsel, and six Attorney-Advisors. These attorneys are highly experiencedin the areas of criminal law, law enforcement,background checks, intelligence issues, andgeneral security matters. With their knowledge ofaviation and transportation security, the OCCCriminal Enforcement Division can be a valuableasset for United States Attorneys seekingassistance and counsel in Title 49 (aviationsecurity) offenses, as well as unique Title 18criminal offenses dealing with aviation issues.More specifically, OCC Criminal EnforcementDivision stands ready to assist with all facets of acase, including litigation support, researchassistance, guidance on charging decisions, andappeals.

Goals of TSA

During TSA's first year in existence, it set outto address aviation security and meet thechallenges and deadlines set out in the Aviationand Transportation Security Act (ATSA). Inaddition, it created an agency from nothing but asingle document, a statutory authorization.

With respect to TSA's law enforcementefforts, the guiding tenets are:

• Prevention of harm to the transportationsystems and facilities;

• Deterrence of risks to transportation security;


• Monitoring and detection of activities whichmight affect transportation security;

• Enforcement and punishment of offenderscommitting violations against transportationsecurity; and

• Minimization of the harms posed by any risksto transportation security.

III. TSA's involvement in the law enforcementcom munity

The ATSA authorizes the Administrator to,among other tasks:

• Assess threats to transportation (49 U.S.C.§ 114(f)(2));

• Develop policies, strategies, and plans, fordealing with threats to transportation security(49 U.S.C. § 114(f)(3));

• Coordinate countermeasures with appropriatefederal agencies, including the United StatesAttorneys (49 U.S.C. § 114(f)(4));

• Serve as the primary liaison for transportationsecurity to the intelligence and lawenforcement communities (49 U.S.C.§ 114(f)(5));

• Manage and provide operational guidance tofield security resources (49 U.S.C.§ 114(f)(6));

• Enforce security-related regulations andrequirements (49 U.S.C. § 114(f)(7)); and

• Oversee the implementation and ensureadequacy of security measures at airports (49U.S.C. § 114(f)(11)).

In addition, the TSA Administrator has"exclusive responsibility to direct lawenforcement activity related to the safety ofpassengers on an aircraft" involved in a hijackingincident when the aircraft is in-flight. 49 U.S.C.§ 44903(e).

IV. TSA enhancing security at airports

A. Presence of law enforcement.

Aviation security and TSA are largely reliantupon the law enforcement capabilities of otherexisting federal law enforcement agencies(namely, the Federal Bureau of Investigation(FBI), the Bureau of Alcohol, Tobacco, Firearms,and Explosives (ATFE), and the Department ofHomeland Security Bureau of Immigration andCustoms Enforcement) and state and local lawenforcement partners. Recently, TSA and FBIinitiated a monthly working group to identifyareas of joint concern and coordinate policies,particularly where the two agencies share

jurisdiction. This working relationship will greatlyenhance both agencies' ability to protect thetraveling public and combat terrorism.

B. Passenger and baggage screening asadm inistrative searches.

All airplane passengers must pass through anairport screening checkpoint and undergo asecurity screening. In balancing FourthAmendment concerns about these limitedintrusions against the substantial public interest inprotecting the aviation system, federal courts havegenerally held that such activities are reasonable.United States v. Davis , 482 F.2d 893 (9th Cir.1973). See also Torbet v. United Airlines, 2002U.S. App. LEXIS 15777 (9th Cir. 2002). Thesecurity screening must be limited in scope,focused only on finding items that might pose adanger to the security of the aircraft. Nevertheless,courts have also upheld the admission of evidencefound during a valid security screening, such ascontraband. United States v. $124,570 U.S.Currency, 873 F.2d 1240 (9th Cir. 1989). Onceagain, the OCC Criminal Enforcement Divisionmay be able to assist federal prosecutors inaddressing these legal issues, including responsesto motions to suppress this type of evidence.

V. Aviation security offenses

There are numerous federal criminal offensesthat might affect aviation and transportationsecurity. The following offenses are the primaryones that are likely to be presented toUnited States Attorneys for consideration:

• Carrying a concealed, dangerous weapon onaircraft and in checked baggage (49 U.S.C.§ 46505);

• Interference with a flight crew (49 U.S.C.§ 46504);

• Interference with security screening personnel(49 U.S.C. § 46503);

• Aircraft piracy (49 U.S.C. § 46502);

• Federal crime in aircraft in-flight jurisdiction(49 U.S.C. § 46506);

• False information and threats (49 U.S.C.§ 46507);

• Passenger screening violations (49 U.S.C.§ 46314);

• Destruction of aircraft or aviation facility (18U.S.C. § 32); and

• Entry to aircraft or secure area of airport byfalse pretenses (18 U.S.C. § 1036).

The top three priorities of airport offenses are:


Firearm s and ammunition offenses: In2002, nearly 800 firearms incidents were reportedat the nation's airports. Only a small percentagewere prosecuted federally. See United States v.Copeland, 2003 U.S. Dist. LEXIS 6446 (W.D.Tenn. 2003) (Court held that "knowledge"requirement of 49 U.S.C. § 46505 firearmsoffense was a factual question to be decided bythe jury).

Assaults on federal employees: (i.e., securityscreeners).

False statements on airport applications:TSA aims to maintain the safest workforce andwork environment at the airports. Consequently, ifan individual is making a materially falsestatement on airport applications, TSA supportsappropriate prosecutions of such offenses. TSAalso applauds the efforts of many United StatesAttorneys around the country who have alreadyassisted in keeping our airports safe in OperationTARMAC.

VI. TSA working with United States Attorneys.

As a new federal agency, TSA is committedto establishing productive working relations withfederal, state, and local law enforcement partners.Strong working relationships with eachUnited States Attorney and the FBI are essentialto carrying out the joint mission of fightingterrorism on all fronts, including transportationsecurity.

TSA is participating in the United StatesAttorneys' Anti-Terrorism Advisory Councils(ATACs) around the country. TSA can providevaluable investigative information, intelligence,and resources, to the policy coordination efforts ofthe ATACs. TSA will also work withUnited States Attorneys through participation onLaw Enforcement Coordinating Committees.

TSA has also designated representatives oneach of the FBI's Joint Terrorism Task Forces(JTTFs). These representatives are well trained,experienced, criminal investigators who willparticipate in terrorism investigations and casesprimarily focused on transportation securitymatters.

TSA will continue to work with United StatesAttorneys and Congress to propose legislation thatwill foster federal enforcement relating to aviationand transportation security. The United StatesAttorneys are encouraged to continue to provideinput and guidance to TSA OCC (either FieldCounsel or at headquarters) on ways to improvefederal enforcement efforts and facilitateprosecution of federal offenses affecting aviationand transportation security.

In addition, TSA may look to United StatesAttorneys for assistance and possiblerepresentation in their role as litigator on behalf offederal agencies. TSA maintains vast amounts ofinformation that is protected by regulation asSensitive Security Information (SSI), which isakin to law enforcement's "sensitive information."49 C.F.R. § 1520.7 (2003). Such information mustbe protected zealously, since disclosure mightendanger the traveling public. The followingitems are examples of materials considered to beprotected SSI information: Airport SecurityPrograms; standard operating procedures forpassengers and checked baggage; technicalspecifications for security devices; procedures totest screening equipment; and the like. Id. If issuesarise in litigation in any court (federal or state),we must strenuously aim to protect thisinformation, and TSA will look to theUnited States Attorneys' Offices forrepresentation.

Further, TSA must follow agency rulesregarding providing fact witnesses for litigationpurposes, often referred to as Touhy regulations.United States ex rel. Touhy v. Ragen, 340 U.S.462 (1951). W here a TSA employee issubpoenaed to testify in court, perhaps by defensecounsel, state prosecutor, or civil litigants, properprocedures must be followed under the Touhyregulations. If such rules are not strictly adheredto, TSA counsel might well contact theUnited States Attorney's Office seekingrepresentation to defend the TSA employee.

VII. National Transportation System SecurityPlan

TSA has been designated as the leadcomponent agency to address transportationsecurity within the Department of HomelandSecurity. Therefore, the TSA Administrator hasbeen asked to provide a National TransportationSystem Security Plan for the United States. Thisplan will address security concerns and issuesrelated to virtually all modes of transportation,including the following six pillars oftransportation:

• Aviation Security;

• Maritime Security;

• Highway Security;

• Railway Security;

• Security of Mass Transit; and

• Security of Pipelines.

TSA looks forward to working withUnited States Attorneys and other partners within


the federal, state, and local law enforcementcommunities in developing a security plan for thenation and protecting the United States fromfurther attacks on its transportation systems andfacilities.

VIII. Conclusion

In a little less than twenty-three months, TSAhas transformed our notions of airport securityand it will continue to improve our efforts toprotect all modes of transportation. The work ofTSA is but one facet in the fight against globalterrorism. TSA has relied on the assistance andguidance of many other entities and is continuallylooking to build bridges of cooperation. It isimportant to TSA to have a strong workingrelationship with United States Attorneys' Officesand with other partners in law enforcement,particularly those at the federal level. We hopethis article has presented a small sample of TSA'scapabilities and shown how the agency can be avaluable ally in the fight against terrorism.�

TSA is also pleased to welcome the significantcontributions of Carol DiBattiste, formerDirector, Executive Office of United StatesAttorneys, Deputy United States Attorney for theSouthern District of Florida, and Director of theOffice of Legal Education at the Department ofJustice (TSA Chief of Staff) and Donna Bucella,former Director, Executive Office of United StatesAttorneys and United States Attorney for theMiddle District of Florida (Aviation Operations,Area Director for the Southeast Region). They areinvaluable resources to the agency and provideinsight into the world of federal prosecutors.

ABOUT THE AUTHORS

�Jay Lerner was an attorney at the United StatesDepartment of Justice, Criminal Division forapproximately ten years. Mr. Lerner worked as aSpecial Assistant to the Assistant AttorneyGeneral for approximately four years, and he alsoworked in the Narcotic and Dangerous DrugSection, the Office of International Affairs, theOffice of Overseas Prosecutorial DevelopmentAssistance and Training, and the MoneyLaundering Section in the United StatesAttorney's Office for the Eastern District ofVirginia. Before his tenure as a federal prosecutor,Mr. Lerner practiced at a private law firmparticipating in the criminal law field.a

�Stephen Brundage was a PresidentialManagement Intern with the Drug EnforcementAdministration and worked in the Narcotic andDangerous Drug Section at the United StatesDepartment of Justice. Both Messrs. Lerner andBrundage have been working at TSA-OCC largelysince the inception of the agency.a

Contact information: For further information onthese subjects, please feel free to contact JayLerner at [email protected] or StephenBrundage at [email protected]. or at(571) 227-2662.

The Criminalization of Air ViolenceJeff Breinholt, Deputy ChiefCounterterrorism SectionCriminal Division

I. Introduction: the American approach tocriminalizing terrorism

The American prosecutorial experience with airviolence is a microcosm of our law enforcementapproach to counterterrorism generally.Understanding this approach helps federalprosecutors fulfill the new post-9/11 public safetymandate: preventing terrorist acts before theyoccur.

The American treatment of terrorism as a lawenforcement matter arises out of our legaltradition. In criminalizing terrorism, we seek to

define terrorists by what they do, rather than whothey are or what particular beliefs motivate them.In the United States, one cannot be convicted ofthe crime of being a terrorist because there is nosuch crime. While there is no general crime ofterrorism, there are a number of offenses that areclassified as "federal crimes of terrorism," See 18U.S.C. § 2332b(g)(5). This classification,however, is mainly for ease of reference, and isrelevant for such things as sentencingenhancements. Each offense listed as a "federalcrime of terrorism" is defined by its own sectionof the U.S. Criminal Code. Those crimes are:

Title 18:

§ 32 (relating to destruction of aircraft or aircraftfacilities);


§ 37 (relating to violence at international airports);

§ 81 (relating to arson within special maritime andterritorial jurisdiction);

§ 175 or §175b (relating to biological weapons);

§ 229 (relating to chemical weapons);

§ 351(a)-(d) (relating to congressional, cabinet,and Supreme Court assassination andkidnapping);

§ 831 (relating to nuclear materials);

§ 842(m) or (n) (relating to plastic explosives);

§ 844(f)(2) or (3) (relating to arson and bombingof Government property risking or causing death);

§ 844(i) (relating to arson and bombing ofproperty used in interstate commerce);

§ 930(c) (relating to killing or attempted killingduring an attack on a Federal facility with adangerous weapon);

§ 956(a)(1) (relating to conspiracy to murder,kidnap, or maim persons abroad);

§ 1030(a)(1) (relating to protection of computers);

§ 1030(a)(5)(B)(ii) through (v) (relating toprotection of computers);

§ 1114 (relating to killing or attempted killing ofofficers and employees of the United States);

§ 1116 (relating to murder or manslaughter offoreign officials, official guests, or internationallyprotected persons);

§ 1203 (relating to hostage taking);

§ 1362 (relating to destruction of communicationlines, stations, or systems);

§ 1363 (relating to injury to buildings or propertywithin special maritime and territorial jurisdictionof the United States);

§ 1366(a) (relating to destruction of an energyfacility);

§ 1751(a) - (d)(relating to Presidential andPresidential staff assassination and kidnapping);

§ 1992 (relating to wrecking trains);

§ 1993 (relating to terrorist attacks and other actsof violence against mass transportation systems);

§ 2155 (relating to destruction of national defensematerials, premises, or utilities);

§ 2280 (relating to violence against maritimenavigation);

§ 2281 (relating to violence against maritimefixed platforms);

§ 2332 (relating to certain homicides and otherviolence against United States nationals occurringoutside of the United States);

§ 2332a (relating to use of weapons of massdestruction);

§ 2332b (relating to acts of terrorismtranscending national boundaries);

§ 2332f (relating to bombing of public places andfacilities);

§ 2339 (relating to harboring terrorists);

§ 2339A (relating to providing material supportto terrorists);

§ 2339B (relating to providing material supportto terrorist organizations);

§ 2339C (relating to financing of terrorism); and

§ 2340A (relating to torture).

Title 42:

§ 2284 (relating to sabotage of nuclear facilitiesor fuel).

Title 49:

§ 46502 (relating to aircraft piracy);

§ 46504 (relating to assault on a flight crew witha dangerous weapon);

§ 46505(b)(3) or (c) (relating to explosive orincendiary devices, or endangerment of humanlife by means of weapons, on aircraft);

§ 46506 (if homicide or attempted homicide isinvolved (relating to application of certaincriminal laws to acts on aircraft));

§ 60123( b) (relating to destruction of interstategas or hazardous liquid pipeline facility).

II. Crimes involving air violence in theUnited States

In the late 1950s, violence and threatenedviolence on commercial airliners were the mostfrequently prosecuted of all terrorism crimes.Prior to 9/11, thirty-one of the ninety-threeUnited States Attorneys' Offices had publishedopinions that deal with the prosecution of airviolence. Given the nature of the events of 9/11,this number has most likely increased.

A number of factors caused such extensiveenforcement. In the late 1950s, air travel was afairly new experience for most people.Consequently, some travelers did not realize theserious threat underlying jokes about bombs intheir luggage. Furthermore, air travel is unique inthat misconduct of one passenger can lead tocatastrophic consequences. Due to the potential


dangers that faced airline transportation, there wasan aggressive enforcement of criminal lawsdesigned to guard against the possibility ofin-flight violence, even including contemplationor discussion of such acts. However, even suchaggressive enforcement did not prevent terroristfrom using commercial airlines as weaponsagainst the United States.

Overinclusive targeting in the context of airterrorism is a deliberate policy and prosecutorialdecision. It is believed to be necessary to guardagainst the real negative results, bombs andshootings on planes, with all the horrendousconsequences. Federal prosecutors haveaggressively charged persons who engaged inconduct (i.e., joking about explosives on planes)beyond the mischief that was sought to beprevented (i.e., actual bombs and gunfire).

By studying the United States experience withair crimes enforcement, modern prosecutors andpolicymakers can gain a better understanding ofthe appropriate and inappropriate use ofoverinclusive targeting. Interestingly, unlikeoverinclusive targeting in the context of othertypes of terrorism, where the accused hasquestioned the constitutionality of the veryexistence of the crime, persons convicted of aircrimes have argued that the crime was applied tooaggressively against them. For a completediscussion of the concepts of underinclusive,overinclusive, and optimal targeting, see JeffBreinholt, Philosophy of American TerrorismCrimes, UNITED STATES ATTORNEYS' BUL LETIN ,July 2003, at 2.

In the late 1960s and early 1970s, theUnited States, like many of our allies, was hit witha spate of hijackings that resulted in criminalprosecutions. Air violence was the political attackof choice for Palestinian terrorists, then at thevanguard of terrorist groups, as well asUnited States-based revolutionaries who sought toshow solidarity with Cuba. The hijackings led totwo United Nations treaties that required signatorycountries to enact laws to deal with the problem.The treaties enacted were:

• The Convention for the Suppression ofUnlawful Seizure of Aircraft, negotiated at theHague, Dec. 16, 1970, 22 U.S.T. 1641, 860U.N.T.S. 105;

• The Convention for the Suppression ofUnlawful Acts against the Safety of CivilAviation, done at Montreal, September 23,1971, 24 U.S.T. 565, 974 U.N.T.S. 178; and

• The Protocol for the Suppression of UnlawfulActs of Violence at Airports Serving

International Civil Aviation, done atMontreal, February 24, 1988, S. Treaty Doc.No. 100-19, 1589 U.N.T.S. 474(supplementing the 1971 MontrealConvention).

The Anti-hijacking Act of 1974, PUB L. NO.93-366, 88 Stat. 409 (1974), was enacted to fulfillthe United States' obligations under the HagueConvention, which requires signatory nations toextradite or punish hijackers "present in" theirterritory. The Anti-hijacking Act provides forcriminal punishment of persons who hijackaircraft operating wholly outside the "specialaircraft jurisdiction" of the United States,provided that the hijacker is later "found in theUnited States." Originally enacted as 49 U.S.C.App. § 1472(n), this crime is currently codified at49 U.S.C. § 46502. In addition to this crime,there are six other air-related criminal offenses:destruction of aircraft or aircraft facilities (18U.S.C. § 32); hoaxes (18 U.S.C. § 35) andviolence at international airports (18 U.S.C § 37);interference with flight crew members andattendants (49 U.S.C. § 46504); carrying aweapon or explosive on an aircraft (49 U.S.C.§ 46505); and a general provision which allowsfor the prosecution of certain crimes if committedon an aircraft (49 U.S.C. § 46506).

III. Bad jokes

Some of those ensnared in the net of air crimeenforcement may have been guilty of poorjudgment and ill-timed attempts at humor, andthey may not have been charged if the mode oftravel was not so new and the securityprecautions so intense. These cases involvedviolations of the hoax statute, 18 U.S.C. § 35,which criminalizes the communication of falseinformation concerning an attempt or allegedattempt to commit air violence. Section 35contains a misdemeanor, for communicatinginformation known to be false, and a felony, fordoing so "wilfully and maliciously, or withreckless disregard for the safety of human life."Consider the following factual scenarios thatresulted in criminal prosecutions and publishedjudicial opinions:

• As he was making travel arrangements for hisflight in July 1961, Sam Silver told the ticketagent "I have a bomb in my brief case." Theplane, carrying eight-eight passengers fromJacksonville, Florida to Washington, D.C. enroute to Philadelphia, was delayed sometwenty minutes, and Silver was not permittedto board. In his luggage Silver was carrying acan of aerosol bug spray with the words "bugbomb" imprinted on it. According to the


court, there is no doubt that the statement thathe had a bomb in his brief case was made injest. Silver was charged under § 35, and awarrant of removal to the district whereprosecution was pending was issued.United States v. Silver, 196 F. Supp. 677(E.D. Pa. 1961).

• In 1962, Bruce Allen and a friend, Roth, wereat the ticket counter of an airline in WindsorLocks, Connecticut, Roth intending to fly toChicago. Roth had two bags, one large andone small. An attendant took the large bag toa scale a short distance down the counter,asking whether Roth was going to carry thesmall bag. Allen handed Roth the small bag,asking, "Is that the bag with the bomb in it?"The attendant then about six feet away,looked toward Allen, who said to Roth "Idon't think he likes me." The bags weresearched, revealing no bomb, and Roth tookthe plane to Chicago. The attendant wasinitially worried by the remark, leading to thesearch of the bags, but was soon convincedthe bomb remark was made in jest. Allen wasconvicted of a § 35 misdemeanor offense andsentenced to imprisonment for one year,suspended after six months, with two yearsprobation and a $250 fine. United States v.Allen, 317 F.2d 777 (D. Conn. 1963).

• On the evening of August 6, 1962, aboard anairborne M ohawk Airlines Flight en routefrom New York to Burlington, Vermont, JohnHumphrey Sullivan asked the flight attendantif his bag was on board. When she answeredaffirmatively, he said it contained TNT. Hewas sentenced to a term of one year with thedirection that he spend thirty days in jail andeleven months on probation. United States v.Sullivan, 329 F.2d 755 (E.D.N.Y. 1964).

• George Albert Rutherford, while on board aUnited States airplane at a New York airport,said within hearing of the flight attendant, "Ihave to sit near the back because I have abomb.'' After another passenger referred to the"tail blowing off," Rutherford said he did notcare because he had "plenty of life insurance."Rutherford was sentenced to imprisonment forone year, suspended after ten days.United States v. Rutherford , 332 F.2d 444(E.D.N.Y. 1964).

The courts in these case left no doubt thatthese types of statements, even if made entirely injest, were properly within the coverage of § 35.Allen and Sullivan contended there was no prooffrom which a finding of evil purpose could bemade, and that such evil purpose is necessary to

find wilfulness within the meaning of the statute.Allen, 371 F.2d at 778; Sullivan, 329 F.2d at 756.Silver argued that he could not be convictedunder the hoax statute unless he had actual intentto destroy a plane. Silver,196 F. Supp at 679.Rutherford went further, claiming at trial that§ 35 infringed on his freedom of speech, arguingthat it was unconstitutionally vague in that itswords permit conviction for innocent acts.Rutherford, 332 F.2d at 445. The court rejectedeach of these claims. In Rutherford, the courtacknowledged that § 35 could be applied tocertain constitutionally-protected speech, butequated its application to the defendant's conductto the First Amendment exception, articulated byJustice Holmes, of "yelling fire in a crowdedtheater." Id. at 446, citing Schenck v.United States, 249 U.S. 47, 52 (1919). As notedby the court in Silver, "We cannot help but takejudicial notice of similar situations elsewherewhere individuals of a completely distorted senseof humor or pranksters with juvenile minds havecaused expensive delays, investigations,hardships, and induced fear by such acts." Silver,196 F. Supp. at 679.

One court in this era was not so deferential tothis aggressive prosecutorial approach to badjokes. In 1960, Stanley Carlson was charged inSan Diego for giving false information aboutexplosives to an American Airlines flightattendant. On appeal from his conviction, Carlsonargued that the charging document failed todescribe a § 35 offense. In particular, he tookissue with the allegation that he "did wilfullyimpart and convey to [a flight attendant], falseinformation concerning an alleged attempt beingmade to wilfully place a destructive substance, towit: explosives, upon [an American Airlinesflight]..., well knowing such information to befalse." United States v. Carlson, 296 F.2d 909,909 (9th Cir. 1961). He contended that thischarging language failed to allege that hisstatement involved explosives that had beenwilfully placed on an aircraft with intent todamage the aircraft, and instead alleged only thathe had given false information that explosiveshad been wilfully placed on an aircraft. The courtagreed, concluding that the only false reportswhich are forbidden by § 35 are those concerningan act "which would be a crime prohibited by thischapter," and reversed Carlson's conviction. Id. at911.

These types of prosecutions are less commonin the modern era, undoubtedly because airtravelers are aware that jokes are unacceptable.Passengers proceeding through securitycheckpoints at United States airports, for


example, are accustomed to signs warning themagainst even nonserious reference to explosives orweapons. On occasion, unfortunate passengershave been prosecuted for relatively benignconduct. Courts that have considered these casesas recently as the 1990s, though prior to 9/11,showed less tolerance for aggressive prosecutionof non-dangerous activity.

For example, in United States v. Grzeganek,841 F. Supp 1169 (S.D. Fla. 1993), Grzeganekwas a passenger on a charter flight from FortLauderdale to Hanover, Germany. Shortly aftertake-off, he went to the middle of the plane, and,in the court's words "acted as if he thought he wasin the toilet." Id. at 1170. When stopped by flightattendants, Grzeganek announced "the roof wasgoing to go." Id. He then made a broad sweepinggesture which the attendants thought indicated anexplosion would occur. He became unruly, andthe plane returned to Fort Lauderdale because offear that he had brought a bomb aboard. A searchof Grzeganek's hand luggage, conducted beforereturning to Fort Lauderdale, yielded a camera, ajar of cold cream, and clothing, but nothingresembling a bomb. Grzeganek was arrested afterthe plane landed in Fort Lauderdale. As a result,the flight missed its connection in Gander,Newfoundland, causing the company to divert theplane to New York City and pay for overnightlodging and meals for its passengers. Later, at hisguilty plea hearing, Grzeganek claimed hisgesture was "to show that his bladder was going toexplode and not the roof of the aircraft" andelaborated, "well, if my bladder explodes, thenalso the roof would go." Id. at 1171. He alsocomplained that, although he had spoken to oneflight attendant in German, she soon left themidship's area and went to the front of the plane,and then only English-speaking personnel werethere with him. Although the court was extremelyreluctant to accept a guilty plea, it did so becauseof Grzeganek's lack of any kind of rationalexplanation for that phrase. He was ultimatelysentenced to time served and fined $200, althougha written court opinion questioned whether heshould have been prosecuted at all.

IV. Hoaxes

Other 18 U.S.C. § 35 prosecutions haveinvolved conduct that was not so benevolent: theintentional conveyance of false information aboutpotential airline violence, apparently in an effortto enjoy the resulting reaction. It is questionablewhether these cases represent overinclusivetargeting at all, since the hoax act itself may bemischief which should be prevented. Falsereports, after all, distract finite air securityresources. Like the bad joke cases, the malevolent

hoax cases span from the early 1960s to the1990s.

For example, Robert James Smith wasconvicted under § 35 for telephoning a FederalAviation Administration (FAA) air trafficcontroller at the Cincinnati Airport, saying that abomb was on board an outgoing aircraft. At trial,he contested that he had done what was alleged,claiming that his chief accuser was motivated bya vendetta. He was convicted of a § 35 violation,and his conviction was affirmed despite avigorous dissent. United States v. Smith, 283F.2d. 16 (5th Cir. 1960). He served his time andpaid his fine, and in 1963 he was pardoned byPresident Johnson. 841 F.2d 1127 (6th Cir.1988).

The more modern case of United States v.Sweet, 985 F.2d 443 (8th Cir. 1993), presents anexample of a true malevolent hoax. On August29, 1991, Sweet made an anonymous phone callto Northwest Airlines from a phone booth at theMinneapolis Public Library, stating that a bombwould blow up a passenger airliner traveling fromMinneapolis to Los Angeles later that night. Afterrepeating this threat three times, she hung up.Several minutes later, Sweet walked into thefederal courthouse in Minneapolis. A securityguard noticed her and detained her in his office.Sweet requested to see Deputy United StatesMarshal Charles Shay. When Shay arrived, Sweetadmitted to him that she had made the bombthreat. She told him that she had researchedvarious criminal statutes on airplanes andautomobiles in the public library minutes beforemaking the phone call. She was arrested and laterindicted on one count of threatening to destroy anairliner in violation of 18 U.S.C. § 35(b). A juryconvicted Sweet, and she was sentenced to thirtymonths.

On appeal, Sweet unsuccessfully argued that§ 35(b) was a specific intent crime and that herjury instructions were erroneous. Rejecting thisclaim, the court approved the jury instructions onthe following four elements of § 35(b) offense:

• the defendant conveyed or impartedinformation which was, in fact, false;

• when the defendant conveyed or imparted theinformation, he/she knew it was false;

• the defendant knowingly, intentionally,voluntarily, and maliciously conveyed orimparted the false information; and

• the information imparted or conveyedconcerned an alleged attempt being made, orto be made, to place a bomb on a civil aircraft


with the intent that the said aircraft operatingin interstate commerce would be destroyed.

V. Non-political acts

Title 18 U.S.C. § 32 (Destruction of aircraft oraircraft facilities) is the key non-hijacking airviolence offense. It criminalizes a variety ofwillful acts:

• setting fire to, damaging, destroying,disabling, or wrecking any aircraft in thespecial aircraft jurisdiction of theUnited States or any civil aircraft used,operated, or employed in interstate, overseas,or foreign air commerce; § 32 (a)(1)

• placing or causing to be placed a destructivedevice or substance in, upon, or in proximityto, or otherwise making or causing to be madeunworkable or unusable or hazardous to workor use, any such aircraft, or any part or othermaterials used or intended to be used inconnection with the operation of such aircraft,if such placing or causing to be placed or suchmaking or causing to be made is likely toendanger the safety of any such aircraft; § 32(a)(2)

• setting fire to, damaging, destroying, ordisabling any air navigation facility, orinterfering by force or violence with theoperation of such facility, if such fire,damaging, destroying, disabling, or interferingis likely to endanger the safety of any suchaircraft in flight; § 32 (a)(3)

• with the intent to damage, destroy, or disableany such aircraft, setting fire to, damaging,destroying or disabling or placing adestructive device or substance in, upon, or inproximity to, any appliance or structure, ramp,landing area, property, machine, or apparatus,or any facility or other material used, orintended to be used, in connection with theoperation, maintenance, loading, unloading orstorage of any such aircraft or any cargocarried or intended to be carried on any suchaircraft; § 32 (a)(4)

• performing an act of violence against orincapacitating any individual on any suchaircraft, if such act of violence orincapacitation is likely to endanger the safetyof such aircraft; § 32 (a)(5)

• communicating information, knowing theinformation to be false and undercircumstances in which such information mayreasonably be believed, thereby endangeringthe safety of any such aircraft in flight; § 32(a)(6); and

• attempting or conspiring to do any of theabove. § 32 (a)(7).

The § 32(a) crimes involve air violencewithin the United States. In contrast, § 32(b)establishes United States jurisdiction wherewillful acts occur abroad or are directed againstnon-United States interests. These latter crimesrequire the presence of factors that allow theUnited States to exercise jurisdiction inaccordance with customary international law(essentially when the perpetrator or one of thepassengers is a United States citizen, or when theperpetrator is "found" in the United States). Theyare:

• performing an act of violence against anyindividual on board any civil aircraftregistered in a country other than theUnited States while such aircraft is in flight,if such act is likely to endanger the safety ofthat aircraft; § 32 (b)(1)

• destroying a civil aircraft registered in acountry other than the United States whilesuch aircraft is in service or causes damage tosuch an aircraft which renders that aircraftincapable of flight or which is likely toendanger that aircraft's safety in flight; § 32(b)(2)

• placing or causing to be placed on a civilaircraft registered in a country other than theUnited States while such aircraft is in service,a device or substance which is likely todestroy that aircraft, or to cause damage tothat aircraft which renders that aircraftincapable of flight or which is likely toendanger that aircraft's safety in flight; § 32(b)(3) or

• attempting or conspiring to do any of theabove. § 32(b)(4).

Section 32(b) was adopted pursuant to theUnited States' obligations under the MontrealConvention for the Suppression of Unlawful ActsAgainst the Safety of Civil Aviation ("theMontreal Convention"), Sept. 23, 1971, 24 U.S.T.565, 974 U.N.T.S. 178; see also S. REP. NO. 98-619 at 1 (1984), reprinted in 1984 U.S.C.C.A.N3682. The purpose of the Montreal Convention isto ensure that individuals who attack airlinescannot take refuge in a country because its courtslack jurisdiction over someone who committedsuch an act against a foreign-flag airline inanother nation. Suppression of Unlawful ActsAgainst the safety of Civil Aviation, 24 U.S.T. at565, 974 U.N.T.S. at 178. The MontrealConvention requires contracting states to adoptlegislation to assert jurisdiction over such an


offender whenever an offender is "present in" theState and the State does not extradite the offenderto another State party.

All of the foregoing crimes are twenty-yearfelonies. Section 32(c) also creates a five-yearfelony for willfully imparting or conveying anythreat to commit an act which would violate anyof the above, with an apparent determination andwill to carry the threat into execution.

Although § 32 is a terrorism crime, it has beenused to prosecute persons for nonpoliticalconduct, where damage was relatively minor ornonexistent and the defendant appeared motivatedby personal animus. Few legal issues, other thanthe admissibility of particular evidence and theappropriate venue, were raised in these matters.However, the facts in the following cases illustratethe type of nonpolitical air violence cases thathave been prosecuted.

• In United States v. Havelok, 427 F.2d 987(10th Cir. 1970), Lawrence Havelock wasconvicted of starting a fire in a restroomduring a flight to Denver. The fire began justa few minutes before landing. During a periodof one hour and ten minutes, Havelock usedthe lavatory facilities three times for thealleged purpose of shaving. On the initial triphe claimed he was unable to complete the taskbecause the flight was too rough. However,flight personnel and passengers testified thatthe flight did not experience any turbulenceuntil just outside Denver, long after the firstshaving attempt. The second trip apparentlywas unsatisfactory since he later returned for athird attempt at a "better shave." He enteredand remained in the bathroom for about tenminutes, during which time the "fasten seatbelt" sign was on and the aircraft wasdescending into Denver. He was seen wearingyellow rubber gloves as he left the restroom.A few minutes later the fire was discovered.As smoke filled the cabin the passengers,including Havelock, were asked to move tothe forward part of the airplane. Havelock wasobserved near seat 14-C where the yellowgloves containing pieces of matchbook coverswere later found. Havelock was convicted ofviolating 18 U.S.C. § 32.

• In United States v. Hume, 453 F. 2d 339 (5thCir. 1971), Castleberry owned and operatedan aircraft used for dusting. On the morningof July 26, 1970, he took off in his aircraftand was dusting in Texas near BurrelleHume's residence. Hume came out of hishouse and shot the aircraft with his .22 caliberrifle on two different runs. Hume's shots made

a small hole in the aircraft wing and also hitthe fuel pump bracket. He was eventuallyconvicted of violating 18 U.S.C. § 32.

• In United States v. Webb, 625 F.2d 709 (5thCir. 1980), a helicopter pilot testified that hewas flying past B.H.Webb's house when hesaw Webb run out to a parked car, take out arifle, and start firing. Webb was convictedunder 18 U.S.C. § 32, despite profferingexpert testimony that he lacked the"propensity to commit a violent act."

VI. Conclusion

The above prosecution examples reflect theouter edge of air crime enforcement, whereprudence demands aggressive prosecution ofpeople who did not necessarily intend to send apolitical message or actually jeopardize the livesof innocents. The other end of the spectrumcaptures the worst type of air terrorism, thecommandeering of airliners through threat ofviolence, or what has come to be known as"skyjacking." Along with assassinations, thepolitically-motivated skyjackings are thequintessential terrorist act. Although not allskyjackings are political, they are prosecutedunder the same statutes. These cases areaddressed in another article.�

ABOUT THE AUTHOR

�Jeff Breinholt currently serves as the DeputyChief in the Counterterrorism Section, where heoversees the U.S. nationwide terrorist financingcriminal enforcement program. He previouslyserved as the Regional Antiterrorism Coordinatorfor the Western and Pacific states and as a trialattorney in the Counterterrorism Section'sinternational terrorism branch. He joined theJustice Department with the Tax Division in1990, and spent six years as a Special AssistantU.S. Attorney in the District of Utah beforejoining the Criminal Division in 1997. He is afrequent lecturer and author on intelligence andlaw enforcement matters, and was recentlyhonored with the Attorney General's Award forExcellence in Furthering the Interests of U.S.National Security.a


Air BombingsJeff BreinholtDeputy ChiefCounterterrorism SectionCriminal Division

I. Introduction

Even more heinous than the act of pirating aplane through threat of force is the intentionalplacement of explosive devices in and aroundaircraft. American prosecutors have dealt with thisconduct on several occasions over the last fortyyears.

Air-related bombings predate skyjackings. InOctober 1933, all seven passengers on board aUnited Airlines flight were killed when a bombexploded over Chesterton, Indiana. An explosivedevice that an aggrieved woman hired ex-convictsto place aboard a Philippines airliner in 1949, inorder to kill her husband, caused the death ofthirteen persons. That same year, a Canadianjeweler named Albert Guay, in an attempt toattract a teenage mistress who had broken off theirrelationship, placed an improvised explosivedevice aboard a flight containing his wife, onwhose life he had taken a large insurance policy.The explosion outside of Montreal killed all thepassengers, including three Americans. JEFFREY

SIMON, THE TERRORIST TRAP: AMERICA 'SEXPERIENCE WITH TERRORISM 46 (Indiania Press,2d ed. 2001).

In the United States, the first criminalprosecution of an air bombing occurred inColorado state court, and involved John GilbertGraham, a 23-year old who collected $37,500 inlife insurance after a Denver-to-Portland planecarrying his mother exploded. Following anextensive FBI forensic investigation thatforeshadowed the terrorism investigations of the1980s, Graham confessed to placing twenty-fivesticks of dynamite and a timing device aboard theplane. Following his jury conviction, Graham wasexecuted. Graham v. People, 302 F.2d 737(D. Colo. 1956). The incident led the U.S.Congress to enact the federal air bombing statute,a crime that has resulted in several publishedopinions in air bombing prosecutions over the lastforty years.

The main statute for this type of terrorism is18 U.S.C. § 32 (2003), which provides, in relevantpart:

§ 32. Destruction of aircraft or aircraftfacilities

(a) Whoever willfully–

(1) sets fire to, damages, destroys,disables, or wrecks any aircraft in thespecial aircraft jurisdiction of theUnited States or any civil aircraft used,operated, or employed in interstate,overseas, or foreign air commerce;

(2) places or causes to be placed adestructive device or substance in, upon,or in proximity to, or otherwise makes orcauses to be made unworkable orunusable or hazardous to work or use, anysuch aircraft, or any part or othermaterials used or intended to be used inconnection with the operation of suchaircraft, if such placing or causing to beplaced or such making or causing to bemade is likely to endanger the safety ofany such aircraft;

(3) sets fire to, damages, destroys, ordisables any air navigation facility, orinterferes by force or violence with theoperation of such facility, if such fire,damaging, destroying, disabling, orinterfering is likely to endanger the safetyof any such aircraft in flight;

(4) with the intent to damage, destroy, ordisable any such aircraft, sets fire to,damages, destroys, or disables or places adestructive device or substance in, upon,or in proximity to, any appliance orstructure, ramp, landing area, property,machine, or apparatus, or any facility orother material used, or intended to beused, in connection with the operation,maintenance, loading, unloading orstorage of any such aircraft or any cargocarried or intended to be carried on anysuch aircraft;

(5) performs an act of violence against orincapacitates any individual on any suchaircraft, if such act of violence orincapacitation is likely to endanger thesafety of such aircraft;

(6) communicates information, knowingthe information to be false and undercircumstances in which such informationmay reasonably be believed, thereby


endangering the safety of any suchaircraft in flight; or

(7) attempts or conspires to do anythingprohibited under paragraphs (1) through(6) of this subsection;

shall be fined under this title or imprisoned notmore than twenty years or both.

(b) Whoever willfully–

(1) performs an act of violence againstany individual on board any civil aircraftregistered in a country other than theUnited States while such aircraft is inflight, if such act is likely to endanger thesafety of that aircraft;

(2) destroys a civil aircraft registered in acountry other than the United States whilesuch aircraft is in service or causesdamage to such an aircraft which rendersthat aircraft incapable of flight or which islikely to endanger that aircraft's safety inflight;

(3) places or causes to be placed on a civilaircraft registered in a country other thanthe United States while such aircraft is inservice, a device or substance which islikely to destroy that aircraft, or to causedamage to that aircraft which renders thataircraft incapable of flight or which islikely to endanger that aircraft's safety inflight; or

(4) attempts or conspires to commit anoffense described in paragraphs (1)through (3) of this subsection;

shall be fined under this title or imprisoned notmore than twenty years, or both. There isjurisdiction over an offense under this subsectionif a national of the United States was on board, orwould have been on board, the aircraft; anoffender is a national of the United States; or anoffender is afterwards found in the United States.

II. The air bom bing cases

A. United States v. Lyon, 567 F.2d 777 (8th Cir.1977)

On December 17, 1966, a dynamite bombexploded in the St. Louis Municipal Airportterminal, damaging the terminal but causing noinjuries. The unexploded bomb was discoveredand the terminal evacuated prior to detonation,and the St. Louis County Police and FireDepartments were called. A group of countypolice officers, led by Major F. J. Vasel,responded. Major Vasel inspected the bomb,which consisted of a wind-up alarm clock, two

sticks of dynamite, and caps and wires arranged ina shoe box. As Vasel turned and walked away, thebomb exploded, knocking him to the floor.

Several employees of the McDonnell AircraftCorporation were suspicious of a co-worker,Verne Lyon. One of the employees, Bryon Rall,told detectives that prior to the bombing, he hadoverheard a telephone conversation in which Lyonmade a reference to the purchase of dynamite.Emil Eisenreich, another McDonnell employee,told detectives that on the day of the bombing,Lyon asked him if he knew anyone who couldsolder some wires to two flashlight batteries.Eisenreich later observed Lyon with the batteriesand wires soldered. Martha Fay Van Diver saidthat prior to the bombing Lyon had asked her for ashoe box. On the day following the bombing,Lyon told her that he had obtained a shoe boxfrom his landlady.

On December 20th, officers went to Lyon'saddress and met his landlady, Mollie Lorts, whoshowed them the second floor room she rented toLyon. She confirmed that she had given Lyon ashoe box a few days earlier and gave the officersan identical box. The officers went to Lyon'sroom, looked in, and observed, through thedoorway, multi-colored wire on a dresser. Asearch warrant was obtained and executed. Lyontold the officers that there was dynamite in asuitcase and blasting caps in a dresser drawer, andofficers found seven sticks of dynamite in thesuitcase, and a box containing four blasting capsin the dresser. Id. at 780.

After he was indicted under 8 U.S.C. § 32,Lyon became a fugitive, and was not captureduntil his 1977 deportation from Peru. Id. He wasultimately convicted by a jury and sentenced tofifteen years in prison for the crime of willfullyplacing a destructive device in the vicinity of anaircraft, plus an additional two years for jumpingbail. Id. at 780-81. However, his case wasreversed and remanded for new trial because ofadmission of evidence seized under an improperlyissued search warrant. Id. at 784. The bailjumping conviction was affirmed. On remand, thedefendant was again convicted of the 18 U.S.C.§ 32 charge. United States v. Lyon, 588 F.2d 581(5th Cir. 1978).

B. United States v. Cook, 432 F.2d 1093 (7thCir. 1970)

In the early 1960s, Earle Cook, on severaloccasions, discussed having his wife killed. Someof the discussions touched on the possibility ofusing an explosive device.


On November 12, 1967, Cook drove his wifeto the airport to catch a flight to California. Hechecked two bags for his wife with a sky cap, andreceived two stubs which he gave her. Cook thenreturned to his car, took out a third bag, andchecked it through another sky cap. He did notgive his wife the stub to the third bag, in which abomb was secreted. There were eighty-onepersons on the 727 jet plane. Over Colorado, abomb exploded in the baggage compartment,depressurizing the aircraft, which wasnevertheless able to land safely in San Diego.

The FBI interviewed spouses, friends, andrelatives of all the passengers on the plane. Id.The investigation indicated that the bag containingthe bomb was the third bag Cook checked. Whileinterviewing Cook, FBI agents removed a numberof items from his residence: a vise, wire, and otherelectrical items. Id. Cook was ultimatelyconvicted under 18 U.S.C. § 32. Id. In theunsuccessful appeal of this conviction, Cook'smain argument involved the trial court's refusal togrant him discovery of government forensic tests.Id. He was sentenced to two concurrent twenty-year prison terms. Id at 1095.

C. United States v. Bradley, 540 F. Supp. 690 (D.Md. 1982)

Martin Thomas Bradley's wife was scheduledto fly to Wichita Falls, Texas, on March 2, 1982.Id. at 692. After she had packed her suitcase,Bradley, without her knowledge or consent,placed a bomb in her luggage. Id. The next day,they drove from their home in Maryland toWashington National Airport in Alexandria,Virginia. Id. The bomb failed to detonate and wasnot discovered until Mrs. Bradley unpacked hersuitcase upon her arrival in Texas. Id.

Mr. Bradley was charged with willfullycausing a destructive substance to be placed in anaircraft in violation of 18 U.S.C. § 32,transporting an explosive device in interstatecommerce with knowledge and intent that itwould be used to kill his wife and damage anairplane, in violation of 18 U.S.C. § 844(d), andwillfully causing an explosive device to be placedon an airplane in violation of 49 U.S.C.§ 1472(l)(1)(C) and (2).

D. United States v. Rashed, 85 F. Supp. 2d 96(D.D.C. 1999)

On an August 11, 1982 Pan Am flight fromTokyo, a bomb exploded twenty minutes beforethe flight was scheduled to land in Hawaii, killingone passenger and wounding fifteen others. Id. at98. At the time of the incident, MohammedRashed was a high-ranking leader of the "15th of

May" Palestinian terrorist organization. Id.Rashed was charged with conspiring to attack theinterests of the United States through a series ofbombing missions at various locations around theworld. Id.

In 1987, a federal grand jury indicted Rashedand two codefendants on nine counts. MohammedHamdan was arrested in Greece on May 30, 1988.The United States subsequently requested hisextradition under its bilateral extradition treatywith Greece. Treaty of Extradition between theUnited States and the Hellenic Republic, May 6,1931, 47 Stat. 2185, as further interpreted by theProtocol, Sept. 2, 1937, 51 Stat. 357. In May1989, the Greek Supreme Court ruled that Rashedcould be extradited on seven of the nine countscontained in the U.S. indictment. Nevertheless,the Greek Government delayed handing Rashedover to the United States and instead chose toprosecute Rashed itself. Rashed was found guiltyof intentional homicide and placement ofexplosive devices in an aircraft, but acquitted ofcharges of illegal seizure of an aircraft andinstigation of damage to aircraft. Althoughsentenced to fifteen years in prison, he wasreleased after serving eight and a half years. In thecourse of his travels outside Greece, he was takeninto custody and arrested by the FBI.United States v. Rashed, 234 F. 3d 1280, 1281(D.C. Cir. 2000).

Rashed was brought to the United States in1998. As of this writing, his case is still pending.His main pretrial argument, which was rejected bythe D.C. Circuit, involved the validity of theAmerican proceedings after he had been tried andconvicted by Greek authorities for the sameconduct. He argued that the Greek proceedings,which included an American prosecutor in thecourtroom (Dan Fromstein of theCounterterrorism Section), were in essence anAmerican prosecution, and that the DoubleJeopardy Clause prohibited his subsequentprosecution in a U.S. court. Both the district courtand the D.C. Circuit rejected this argument, withthe latter noting:

The central issue in this case is whetherGreece, in prosecuting Rashed, was a tool ofthe United States and the Greek trial a sham.Two facts render Rashed's claim implausible.First, the United States wanted Greece toextradite Rashed, not to prosecute him.Greece stood its ground and refused. Rashedacknowledges both the U.S. preference andthe Greek resistance. He points to what wemay loosely call evidence that theUnited States threatened Greece withsanctions, but that evidence itself shows that


the threats (if made at all) were alwaysintended to secure extradition.

Id. at 1283.

The Rashed case illustrates the United States'commitment to redress international terrorism, nomatter how long it takes, and gives meaning to theprinciple that terrorist actors should not rest easyeven after the immediate sting of their actionsdissipates.

E. United States v. Yunis, 924 F.2d 1086 (D.C.Cir. 1991)

On June 11, 1985, Fawaz Yunis and fourother men boarded a Royal Jordanian aircraftscheduled to depart from Beirut, Lebanon. Theywore civilian clothes and were armed withmilitary assault rifles and hand grenades. Yunistook control of the cockpit and the remaininghijackers held the passengers, including twoAmericans, captive. The hijackers explained thatthey wanted the plane to fly to Tunis, where aconference of the Arab League was under way, sothat they could meet with delegates to theconference.

After a refueling stop in Cyprus, the airplanewas denied permission to land in Tunis. A secondattempt to land in Tunis also failed. Subsequently,the plane returned to Beirut, where more hijackerscame aboard. These included an official ofLebanon's Amal Militia, the group at whosedirection Yunis claimed to act.

The plane then headed for Syria, but it wasturned away and returned to Beirut. There, thehijackers released the passengers, held a pressconference demanding that Palestinians leaveLebanon, blew up the plane, and fled.

The American investigation identified Yunisas the probable leader of the hijackers. Afterobtaining an arrest warrant, the FBI put"Operation Goldenrod" into effect. UndercoverFBI agents lured Yunis onto a yacht in theMediterranean Sea with promises of a drug deal,and arrested him once the vessel enteredinternational waters. Yunis was placed on aUnited States Navy ship and interrogated forseveral days until he was transferred to a Navyaircraft carrier. Yunis was taken to Washington,D.C., where he was arraigned on the originalindictment charging him with conspiracy, hostagetaking, and aircraft damage. A grand jurysubsequently returned a superseding indictmentadding additional aircraft damage counts and acharge of air piracy. Id. at 1089.

Prior to trial, there was extensive litigationconcerning the manner in which Yunis was

brought to the United States. The Court ofAppeals for the District of Columbia ultimatelyreversed the district court's opinion suppressingYunis' confession elicited while en route to theUnited States. United States v. Yunis, 859 F.2d953, 954-57 (D.C. Cir.1988). The district courtrejected Yunis' claim that the manner in which hehad been brought to the United States deprived theUnited States of subject matter and personaljurisdiction over the case. United States v. Yunis,681 F. Supp. 896, 898-99 (D.D.C.1988).

[At trial,] Yunis admitted participation inthe hijacking . . . but denied parts of thegovernment's account and offered theaffirmative defense of obedience to militaryorders, asserting that he acted on instructionsgiven by his superiors in Lebanon's AmalMilitia. The jury convicted Yunis ofconspiracy, 18 U.S.C. § 371 (1988), hostagetaking, 18 U.S.C. § 1203 (1988), and airpiracy (then 49 U.S.C. App. § 1472(n))However, it acquitted him of three othercharged offenses: violence against people onboard an aircraft, 18 U.S.C. § 32(b)(1) (1988),aircraft damage, 18 U.S.C. § 32(b)(2) (1988),and placing a destructive device aboard anaircraft, 18 U.S.C. § 32(b)(3) (1988). Thedistrict court imposed concurrent sentences offive years for conspiracy, 30 years for hostagetaking, and 20 years for air piracy.

United States v. Yunis, 924 F.2d 1086, 1089-90(D.C. Cir. 1991).

Yunis' convictions were affirmed on appeal,with the "obedience to military orders" defensepresenting the most unique issue. This ancientcommon law defense was articulated by themilitary court in the course of the My LaiMassacre cases in Vietnam:

The acts of a subordinate done in compliancewith an unlawful order given him by hissuperior are excused and impose no criminalliability upon him unless the superior's orderis one which a man of ordinary sense andunderstanding would, under thecircumstances, know to be unlawful, or if theorder in question is actually known to theaccused to be unlawful.

United States v. Calley, 22 C.M.A. 534, 542; 48C.M.R. 19, 27 (1973). The district court gave ajury instruction which included these principles,but included a charge that Yunis could prevail onthis defense only if the Amal Militia was a"military organization." The court furtherinstructed the jury that it could find that the AmalMilitia is a military organization only if the grouphas a hierarchical command structure and


conducts its operations in accordance with thelaws and customs of war, and if its members havea uniform and carry arms openly. The appealscourt affirmed this instruction, stating that itprovided adequate assurance that Yunis did notsuffer from parochial projection of Americannorms onto the issue of whether he should betreated as a soldier for purposes of the obediencedefense. 924 F.2d at 1097-98.

III. Ramzi Yousef and the Bojinko Plot

The most extensive treatment of an airviolence case by any U.S. court involved whatcame to be known as the Bojinko Plot, prosecutedin New York in the mid-1990s. Of the ninety-eight-page opinion issued by the Second Circuit,approximately one-third involved legal issuesfundamental to the U.S. counterterrorismenforcement program, and the origin andconstruction of some of the air violence crimesdescribed in these articles.

Ramzi Yousef was one of the masterminds ofthe first World Trade Center attack in 1993 and,with Eyad Ismoil, drove the bomb-laden van intothe center's underground parking structure.Yousef and Ismoil both escaped the United Statesbefore being arrested, and were not part of theNew York trial of their codefendants. While afugitive, Yousef traveled to the Philippines andworked with Abdul Hakim Murad on an airlinebombing scheme that became known as theBojinko Plot.

Yousef entered M anila a year after the W orldTrade Center bombing, under an assumed name,and devised a plan to attack American airliners.According to the plan, five individuals wouldplace bombs aboard twelve U.S.-flag aircraft thatserved routes in Southeast Asia. They wouldboard an airliner in Southeast Asia, assemble abomb on the plane, and then exit the plane duringits first layover. As the planes continued ontoward their next destinations, the time bombswould detonate. Eleven of the twelve flightstargeted were destined for cities in theUnited States.

Yousef and his coconspirators conductedseveral tests in preparation for the airlinebombings. In December 1994, Yousef and WaliKhan Amin Shah placed a bomb they hadconstructed in a Manila movie theater. Itexploded, injuring several patrons. Ten days later,Yousef planted a test bomb on a PhilippineAirlines flight from Manila to Japan. Yousef gotoff the plane during a stopover and on the secondleg of the flight, the bomb exploded. Onepassenger was killed and several were injured.

The plot to bomb the U.S. airliners wasuncovered fortuitously only two weeks before thebombings were to occur. Yousef and Murad wereburning chemicals in their Manila apartment andaccidentally started a fire. The fire departmentwas called and Philippine police subsequentlyarrived to discover chemicals and bombcomponents, a laptop computer on which Yousefhad outlined the aircraft bombing plans, and otherincriminating evidence. Philippine authoritiesarrested both Murad and Shah. Shah escaped andwas not recaptured for nearly a year. Yousef fledthe country, but was captured in Pakistan onemonth later.

On February 21, 1996, a grand jury in theSouthern District of New York filed a twenty-count superseding indictment against Yousef andhis codefendants. The first eleven counts chargedYousef and Ismoil with various offenses arisingfrom their participation in the February 26, 1993,bombing of the World Trade Center. Countstwelve through nineteen charged Yousef, Murad,and Shah with various crimes relating to theBojinko Plot. The trial of Yousef, Murad, andShah on the airline bombing charges began onMay 29, 1996, and ended on September 5, 1996,when the jury found all three defendants guilty onall counts. Yousef and Ismoil's trial on the WorldTrade Center bombing began on July 15, 1997,and concluded on November 12, 1997, with thejury finding both defendants guilty on all counts.

For the World Trade Center convictions,Yousef was sentenced to a total of 240 years ofimprisonment, consisting of 180 years on Countsone through eight, plus two thirty-year terms eachon Counts nine and ten for violations of 18 U.S.C.§ 924(c), to be served consecutively to the 180-year sentence, and to each other. For the BojinkoPlot convictions, Yousef was sentencedprincipally to a term of life imprisonment, to beserved consecutively to his 240-year sentence forthe World Trade Center bombing. United States v.Yousef, 327 F.3d 56, 79-80 (2d Cir. 2003).

Yousef's conviction was affirmed.United States v. Yousef, 327 F.3d 56 (2d Cir.2003). Among the important principles affirmedby the Second Circuit's opinion were thefollowing:

• The application of § 32 to conduct that occursoutside the United States does not exceed thegovernment's authority. Yousef contendedthat his prosecution violated customaryinternational law limiting a nation'sjurisdiction to proscribe conduct outside itsborders, and was contrary to the Due ProcessClause of the Fifth Amendment of the


United States Constitution. Rejecting thisargument, the Second Circuit noted that theBojinko Plot targeted U.S.-flag aircraft whilein flight, and was, therefore, in "the specialaircraft jurisdiction of the United States."Also, all but one of the aircraft targeted in theconspiracy were civil aircraft carryingpassengers destined for the United States andwere, accordingly, "civil aircraft used,operated, or employed in... overseas, orforeign air commerce." 18 U.S.C. § 32(a)(1).Noting that Yousef was also charged withviolating 18 U.S.C. § 32(b)(3) for placing abomb on a civil aircraft registered in anothercountry, a Philippine Airlines flight travelingfrom the Philippines to Japan on December11, 1994, the court found that Congressintended § 32(b) to apply to attacks on non-U.S.-flag aircraft. "The statute appliesexpressly to placing a bomb on aircraftregistered in other countries while in flight, nomatter where the attack is committed, andprovides for jurisdiction over suchextraterritorial crimes whenever, inter alia, 'anoffender is afterwards found in theUnited States.'" 18 U.S.C. § 32(b). Id. at 88.

The court rejected Yousef's argument that,absent a universally agreed-upon definition of"terrorism," and an international consensusthat terrorism is a subject matter over whichuniversal jurisdiction may be exercised, theUnited States cannot rest jurisdiction over himfor this "terrorist" act on either theuniversality principle, or on any United Statespositive law, which, he claimed, necessarilywas subordinate to customary internationallaw. The Second Circuit opined that"United States law is not subordinate tocustomary international law or necessarilysubordinate to treaty-based international lawand, in fact, may conflict with both." Id. at 91.The court found that the charge involving thePhilippines aircraft was appropriate "under theaut dedere aut punire ("extradite orprosecute") jurisdiction created by theMontreal Convention, as implemented in 18U.S.C. § 32 (destruction of aircraft) and 49U.S.C. § 46502 (aircraft piracy), and... underthe protective principle of the customaryinternational law of criminal jurisdiction." Id.at 91-92.

The court noted that Yousef's intent was todestroy United States commercial aircraft andinfluence United States foreign policy, themaking of which clearly constitutes a"governmental function." The bombing of thePhilippine Airlines flight, as charged in Count

Nineteen, was merely a test-run that Yousefexecuted to ensure that the tactics and devicesthe conspirators planned to use onUnited States aircraft operated properly. Id. at110.

• Persons forcibly brought to the United Statescan be considered "found in theUnited States" for purposes of the § 32(b)extraterritorial jurisdiction. Yousef arguedthat, because he was brought here against hiswill when Pakistan transferred him to U.S.custody for prosecution on charges relating tothe World Trade Center bombing, he was not"found in the United States" within themeaning of § 32(b). To support his position,Yousef cited 18 U.S.C. § 1651, in whichCongress differentiated between one who isforcibly brought into the country and one whois found in the United States. "Whoever, onthe high seas, commits the crime of piracy asdefined by the law of nations, and isafterwards brought into or found in theUnited States, shall be imprisoned for life."(emphasis supplied). Id. at 88.

Yousef reasons that if being "found" inthe United States merely requires adefendant's presence here, then the"afterwards brought into" language of§ 1651 would be superfluous, arguingthat, because he was brought to theUnited States involuntarily, he was not"found in the United States" for purposesof § 32(b). Upon examining thepersuasive interpretation by other courtsof an identical jurisdictional provision in arelated statute, see United States v. Rezaq,134 F.3d 1121, 1130-32,1143 (D.C.Cir.1998); United States v. Yunis, 924F.2d 1086, 1092 (D.C. Cir. 1991), as wellas the purpose and plain language of 18U.S.C. § 32(b), the court found thatYousef was "found in the United States"within the meaning of § 32(b).

Yousef, 327 F.3d at 88.

IV. Conclusion

Apart from the Bojinko Plot, which stretchedacross international boundaries and involvedcomplex issues of international law, the airbombing cases are marked by well-settled legalprinciples. This point follows naturally from thefact that the bombing plots fall squarely within thecore of conduct that must be prevented whereverair travel exists, in the interests of public safety.Unlike the more benign type of air-relatedprosecutions, such as bad jokes and hoaxes,described in the previous article, Title 18 U.S.C.


§ 32 crimes do not reflect the limits ofoverinclusive targeting. Persons charged withthem rarely claim that the crime should not exist,and instead focus on more fact-specific defenses.This point is also borne out by the 1988 explosionof Pan Am Flight No. 103 over Lockerbie,Scotland, in which the Libyan defendants wereprosecuted a decade later in a Scottish proceedingvenued in the Hague, Netherlands, assisted byAmerican prosecutors. In that matter, the twodefendants largely did not contest the heinousnessof the terrorist act, and whether it should havebeen punished. Instead, like many of thedefendants described above, they devoted theirefforts to trying to show that they were not theones responsible. One was successful, while theother was not.�

ABOUT THE AUTHOR

�Jeff Breinholt currently serves as Deputy Chiefin the Counterterrorism Section where he overseesthe U.S. nationwide terrorist financing criminalenforcement program. He previously served as theRegional Antiterrorism Coordinator for theWestern and Pacific states and as a trial attorneyin the Counterterrorism Section's internationalterrorism branch. He joined the JusticeDepartment with the Tax Division in 1990, andspent six years as a Special Assistant U.S.Attorney in the District of Utah before joining theCriminal Division in 1997. He is a frequentlecturer and author on intelligence and lawenforcement matters, and was recently honoredwith the Attorney General's Award for Excellencein Furthering the Interests of U.S. NationalSecurity. His forthcoming book, CounterterrorismEnforcement: A Prosecutor's Guide, will beavailable through the Office of LegalEducation.a.

SkyjackingJeff BreinholtDeputy ChiefCounterterrorism SectionCriminal Division I. Political violence in the air

If bad jokes at airports, bomb hoaxes, andnonpolitical damage to airplanes and airlinefacilities are crimes on one end of the air violencespectrum, air piracy, the commandeering ofairliners through threat of violence, or what hascome to be known as "skyjacking," is at the other.Along with assassinations, the politically-motivated skyjackings are the quintessentialterrorist act. Although not all skyjackings arepolitical, both political and nonpolitical incidentsare prosecuted under the same statutes.

The crime of air piracy is defined in 49 U.S.C.§ 465026 as seizing or exercising control, orattempting to seize or exercise control, of anaircraft "by force, violence, threat of force orviolence, or any form of intimidation, and withwrongful intent." It is a United States crime to doso if the aircraft is in the special aircraftjurisdiction of the United States or if a national ofthe United States is aboard the aircraft, anoffender is a national of the United States, or the

offender is afterwards found in the United States.Id.

The elements of the skyjacking offense are:

• a seizure of, or exercise of control over, anaircraft;

• by means of force, violence, or intimidation;

• with wrongful intent; and

• when the aircraft is within the special aircraftjurisdiction of the United States.

49 U.S.C. § 46502; see. e.g., United States v.Dixon, 592 F.2d 329, 339-40 (6th Cir. 1979).

According to the airline industry, there wereapproximately 970 attempted and successfulskyjacking incidents between 1948 and 2000. Thefirst known skyjacking occurred in February1931, when a Peruvian airliner was seized. Thesecond apparently occurred in 1947, when a planefrom Romania was forced to fly to Turkey and thefirst innocent victim, a crewman, was shot dead.In 1948, a Czechoslovakian airliner was hijackedand landed in the U.S. zone of occupied Germany,marking the first of many spates of skyjackings,which appear to occur in cycles. One motivatingfactor of skyjackings in this era appeared to bemigration in that most of the post-World War IIskyjackings occurred in Eastern Europe, as


desperate citizens sought to escape from theSoviet Bloc countries to the West. The vastmajority of the 970 skyjackings between 1948 and2000 involved foreign-registered planes;approximately 240 U.S. airliners have been thesubject of attempted and successful skyjackings.DESPITE RECENT SEIZURES, AIRLINER

HIGHJACKINGS DECLINING, AIR SAFETY WEEK,February 21, 2000; Robert Kearns, 54 Years of AirPiracy, SEATTLE TIMES, November 30, 1985, atA3.

Most American skyjackings have involvedCuba, and the frequency of such incidents hasbeen directly impacted by the U.S. relationshipwith Fidel Castro. Beginning in the 1960s,United States airliners were threatened withhijacking at an alarming rate. When the culpritswere caught, many claimed mental illness. In thelate 1960s and early 1970s, there were severalCuba-related skyjacking undertaken by African-American revolutionaries. After a period ofrelative calm, the frequency of Cuban skyjackingsspiked again in the early 1980s, following theMariel Boatlift.

II. The Cuban skyjackings

The first of these incidents involving Cubathat resulted in a published U.S. court opinion(albeit written some twenty-five years after theincident) occurred on February 18, 1964, whenReinaldo Lopez-Lima and Enrique Castillo-Hernandez forced pilot Richard L. Wright to flyfrom Florida to Cuba. They were charged under49 U.S.C. § 1472(i), the predecessor statute to thecurrent air piracy provision, and remainedfugitives from United States authorities becausethey were jailed by the Castro regime as illegalaliens.

In 1980, Castillo-Hernandez was among theincorrigibles Castro sent to the United States inthe Mariel Boatlift. Castillo was promptly arrestedby United States authorities upon his arrival. Afterhis first trial ended with a hung jury, he pleadguilty, and was given a two-year suspendedsentence. Lopez-Lima returned to theUnited States in 1987. His outstanding indictmentwas discovered in 1989 after he was approachedearlier that year by the United States StateDepartment as a possible source of informationregarding Cuba.

In his pretrial motions, Lopez-Limamaintained that he and Castillo were set up by theCIA to pose as defectors from the Cuban exilecommunity who intended to reenter Cuba andsupport Castro and, once inside, were to assistanti-Castro activists. Lopez-Lima claimed that thisCIA operation was designed to look like a

skyjacking, so that Cuban authorities would notsuspect CIA involvement. The court agreed thathe could present this defense. United States v.Lopez-Lima, 738 F. Supp. 1404 (S.D. Fla. 1990).Judge Kenneth Ryskamp dismissed theindictment, ruling that the government failed togive Lopez-Lima a speedy trial, noting that Cubahad offered to return him in 1972 but that U.S.government refused. Milt Sosin, Judges dismissescharges in 26-year-old skyjacking, ST.PETERSBURG TIMES, June 22, 1990, at 7B.

Lopez' and Castillo's act took place shortlyafter the Bay of Pigs invasion and the CubanMissile Crisis, although they were not brought tojustice until nearly twenty years later. In theinterim, several other Cuba-related skyjackingsoccurred which were addressed in publishedopinions by United States courts.

A. Cuba and the Am erican Revolutionaries

The late 1960s and early 1970s Cuba-relatedhijackers were, for the most part, Americanfugitives and homegrown radicals rather thanhomesick Cubans. These incidents includedseveral skyjacking by members of the BlackPanther Party, who thereafter became disgustedwith life in Cuba and decided to come home. Forexample:

• Raymond Johnson commandeered a November1968 flight originating from New Orleans toCuba, and eventually gave media interviews inwhich he complained about racism and oppressionunder Castro. Fenton Wheeler, Life Worse inCuba, Unhappy Black Panthers Wail, M IAMI

HERALD, June 26, 1969, at 17D. Eighteen yearslater, he waived extradition and returned to theU.S. along with his Cuban wife and four children,saying "he would feel more like a free man in anAmerican federal prison than he would walkingthe streets of Havana." State-Times NewsServices, Ex-SU student ends Cuba exile, THE

ADVOCATE (THE BATON ROUGE STATE TIMES

EDITION), September 12, 1986, at 1-A.

• In 1969, Anthony Garnet Bryant successfullyhijacked National Airline flight No. 97 from NewYork, bound for Miami. He made the mistake ofrobbing the passengers on the plane, one of themturned out to be a Castro secret agent carrying abriefcase full of cash. As a result, Bryant wastreated as a criminal rather than a hero when helanded in Havana, and was incarcerated for twelveyears in the Cuban penal system. He was finallyreleased in 1980 after President Carter worked adeal with Castro for the release of thirty Americanprisoners in Cuba. In a Miami courtroom, hestated "Communism is humanity's vomit. Wipe itout." Mary Voboril, Hijacker is glad he's back in


U.S., rails against reds, M IAM I HERALD, October29, 1980, at 4B.

• On January 22, 1971, Garland Grant hijacked aNorthwest Airlines Milwaukee-to-WashingtonD.C. flight with fifty-nine passengers aboard.Grant originally wanted to go to Algeria, butsettled instead for Cuba. He later lost an eye in aCuban prison beating, and gave an interview inwhich he stated, "I just want to get back to theUnited States. I'm living like a dog inCuba...There are most racism problems here thanin the worst parts of Mississippi." Gregory Nokes,Hijacker Detests Cuba, WASHINGTON POST, April26, 1977. He voluntarily surrendered to U.S.authorities in 1978. He eventually gave a series ofdisjointed speeches in court before beingsentenced to fifteen years imprisonment.HIJACKER GETS 15 YEAR TERM, M ILWAUKEE

JOURNAL, September 6, 1978.

B. 1969-1971

On June 9, 1969, Ronald Bohle, while onboard Eastern Airlines Flight No. 831 from Miamito Nassau, Bahamas, used a switchblade knife andthreatened to use concealed nitroglycerin and agun to persuade a flight attendant to takeappropriate steps to divert the course of the planeto Cuba. United States v. Bohle, 445 F.2d 54 (7thCir. 1971).

Two years later, passengers on two otherflights attempted skyjackings . In June 1971,Bobby Richard White entered a Piedmont Airlinesjet which was parked at the airport inWinston-Salem, North Carolina. During aconfrontation with Captain Leon Fox, Whitestated that his bag contained nitroglycerin andsulfuric acid. He ordered Fox to fly him to Cuba,stating, "If I drop this bag it will blow us to bits. Idon 't give a damn." W hite was subsequentlysubdued and the bag was found to contain nothingbut personal effects. United States v. White, 475F.2d 1228 (4th Cir. 1973). White was sentenced toimprisonment for a term of four years.

On October 9, 1971, Richard Dixon, armedwith a revolver, seized a flight attendant who wasassisting boarding passengers on an EasternAirlines jet at the Detroit Metropolitan Airport,and ordered the pilot to fly to Cuba. Dixonremained in Cuba for some time after thehijacking, though he was ultimately captured.United States v. Dixon, 592 F.2d 329 (6th Cir.1979).

Each of these skyjackers was successfullyprosecuted. Bohle, while suggesting the air piracystatute was unconstitutional, became the first ofmany skyjackers to claim insanity. White, who

was found without any lethal explosives, wascharged under 18 U.S.C.§ 32 rather than theskyjacking crime. His defense, that his threat wasso conditional that he could not be convicted, wassimilar to those used by defendants charged underthe hoax statute. Dixon was charged both withskyjacking (49 U.S.C. §1472(i)) and kidnapping(18 U.S.C. §1201(a)), and his appeal waspremised on arguments that the two charges wereduplicative. Some of these issues are discussedbelow.

C. 1979-1980

Cuban-related hijacking hit the United Statescourts again in the late 1970s and early 1980s.This group, however, eventually followed Bohle'slead, claiming a mental defect.

On July 20, 1979, shortly after takeoff fromDenver, Colorado, Ronald Rimmerman, left hisseat in the first class section of the plane, walkedforward, and knocked on the cockpit door. JackEarl Rayner, Second Officer and Flight Engineeraboard the aircraft, stated that he opened the doorand Rimmerman said , "I have plastic explosives inmy pocket, and I want to go to Cuba."Rimmerman took a seat in the cockpit area and, inconversations with the crew, agreed to allow theaircraft to land in Omaha for refueling. Uponarrival in Omaha, FBI agents entered the cockpitarea of the aircraft and placed Rimmerman underarrest. He was searched and no explosives werefound. Following his bench trial, Rimmerman wasfound not guilty by reason of insanity.United States v. Rimmerman, 483 F. Supp. 97 (D.Neb. 1980).

Three months later, Carlos Jesus Figueroaboarded Eastern Airlines Flight 115 travelingfrom Tampa to Miami. Fifteen minutes prior tolanding, he handed the flight attendant a note andasked that she give it to the captain. The notestated:

This is a request to take me to Cuba ... Now !

This aircraft is in no danger. But don't takeany chances. The life of many people is inyour hands.

A powerfull [sic] explosive device is set togo-off on pre-set time in a public location inTampa. Many inocent people are goin todie-Any loss of life as a result of your hasteand negligence and this airline managementwill be your responsibility. Copy of this noteis in the mail to all major T-V networks newsmedia, relatives and friends-They will knowwhat happen in the ground and, who can helpat the time Once in Cuba-Not Before. I will


tell you exact location and how to disarmsafely the device.

Time is essential.

THANKS-Carlos

The flight attendant took Figueroa's note tothe cockpit where it was read to the captain.Figueroa was told that they did not have enoughfuel to get to Cuba and that they would have tostop in Miami for fuel. Figueroa explained that hehad lost everything and was totally broke. Apassenger said something about people on theairline being in danger and he said that was theway things had to be. He apologized three or fourtimes for causing the inconvenience. When theplane landed in Miami, Figueroa was arrested bywithout incident. He was carrying no weapon.United States v. Figueroa, 666 F.2d 1375 (11thCir. 1982).

A month after Figeuroa's arrest, RafealCasteneda-Reyes was one of 125 passengersaboard a commercial flight leaving Miami enroute to San Antonio. A few minutes after takeoff,Casteneda approached one of the flight attendants,holding a decal with a Cuban flag on it, stating"We are going to Cuba." Casteneda threatened toset the plane on fire and told the flight attendant,"[W]e are all going to die." He indicated that if hisdemand to be taken to Cuba was not met, hisbrother, who he claimed was on board and had agun, would start shooting people at random.Casteneda was ultimately subdued by flightpersonnel. Once restrained, he hit his head againstthe bulkhead several times and stated that he wascrazy. United States v. Castaneda-Reyes, 703 F.2d522 (11th Cir. 1983).

That same summer, Jose AntonioPablo-Lugones, a Mariel Boatlift refugee, was inMiami with another Cuban refugee named HectorCacares-Pinero, plotting to return to theirhomeland. Learning that there was a morning AirFlorida flight from Miami to Key West, Cacaressuggested that they purchase some gasoline, placeit in small bottles, and use it to intimidate theflight attendants into diverting the plane to Cuba.Cacares tied his gasoline bottle to a string or ropearound his waist. Pablo concealed his bottle ofgasoline in a folded jacket, which he intended tocarry on board the plane. At a secondaryinspection station, the bottle containing gasolinewas discovered in Pablo's jacket, while the otherbottle of gasoline was discovered tied to Cacares'waist. After being advised of his rights by theFBI, Pablo waived his right to counsel anddisclosed their entire plan. United States v. Pablo-Lugones, 725 F.2d 624 (11th Cir. 1984).

C. 1983-1987

On September 14, 1983, threeSpanish-speaking, Latin males, including AntonioVigil-Montanel and Elio Bacaro-Garcia, each paidcash for one-way plane ticket to Tampa fromMiami International Airport. The ticket agentbecame suspicious of the three men, primarilybecause the flight to Tampa was not scheduled todepart for another four hours, and because theywere waiting around the lobby, but unwilling totake an earlier flight. She earmarked the ticketsand pointed out the three men to her supervisor.

At a concourse checkpoint, a security guarddid a routine pat-down of Bacaro-Garcia, findinga plastic bottle filled with gasoline and a cigarettelighter in one of his socks. As the security guardstood up holding the bottle, he said "What isthis?" Bacaro-Garcia claimed it was medicine. Bythis time, Vigil-Montanel had already boarded theplane. Police officers entered the plane,apprehended Vigil-Montanel, and escorted himoff the plane. Another bottle of gasoline and a toyplastic gun were discovered in his socks. AsVigil-Montanel was being escorted off the planehe exclaimed in Spanish, "No, no, didn't want togo to Cuba. . . . My friend made me do it." Thethird person was never apprehended. Bacaro-Garcia and Vigil-Montanel were later interviewedby an FBI agent and both stated that they wereapproached at the airport by an unknownindividual who offered them money (fifteen totwenty dollars) to carry a liquid-filled bottleaboard the aircraft, which they each agreed to do.Vigil claimed that he had found the toy gun on thestreet and that he had carried it in his sock since.The jury found both defendants guilty as charged,and they were each sentenced to twenty-five yearsimprisonment. United States v. Vigil-Montanel,753 F.2d 996 (11th Cir. 1985).

Four years later, on June 5, 1987, a VirginIslands Seaplane, Shuttle Flight 329, left St.Thomas, U.S. Virgin Islands, en route to SanJuan, Puerto Rico. As the airplane approached thecoast of Puerto Rico, Edward Ramon Mena strodetoward the cockpit, clutching, in one hand, a tincan equipped with a wick and protruding brasscontacts. In his other hand, he held a cigarettelighter. Referring to the can as a "very sensitiveexplosive device" and continually flicking hislighter, he threatened to "blow up the aircraft" ifhe was not flown to Cuba. The pilot explained thatthe airplane had insufficient fuel to make such atrip so he suggested they refuel in San Juan,offload passengers to increase flying range, andthen "island hop" to Cuba, making additionalrefueling stops along the way as necessary. Menaagreed. Meanwhile, the copilot transmitted an


encoded hijack alert through the aircraft'stransponder. Upon landing, security personnelsurrounded the plane, the luggage was removed,and the passengers and copilot were allowed toleave. The pilot remained on board for some time,and then deplaned.

Mena took refuge in the cockpit,communicating with the FBI by means of theaircraft's radio and the control tower. During thatinterlude, he again warned authorities that he hada bomb and added that he had confiscated a flaregun. He repeated his demand to be transported toCuba. After more than four hours of negotiations,Mena agreed to disembark. On doing so, he wasarrested. The tin can was found to contain apetroleum distillate similar to kerosene.United States v. Mena, 933 F.2d 19 (1st Cir.1991).

III. The mental defense to skyjacking

Several of the Cuban skyjackers presented amental defense. Some were successful. RonaldBohle, the subject of the first judicial opinion in aCuban hijacking case, was the person who tried tocommandeer the June 1969 Eastern Airlines flightfrom the Bahamas to Miami. Bohle, 445 F.2d 54.He was eventually convicted in Indiana, where hehad lived his entire life, and sentenced to twenty-five years in prison. Id. On appeal, his convictionwas reversed based on the trial court's error inrefusing to admit certain evidence relating toBohle's mental condition. United States v. Bohle,475 F.2d 872 (2nd Cir. 1973).

Carlos Jesus Figueroa, who actually signedthe threatening note with his real name along withthe word "thanks," and who apologized to hisvictims for the inconvenience, had a history ofmental illness which had required hospitalizationand electroshock treatment. Figueroa, 666 F.2d1375. At trial, the defense and government expertsagreed that Figueroa suffered from severedepression, but they disagreed on whether itnegated his culpability. Id. at 1377. Figueroa'spsychiatrist expressed the opinion that he sufferedfrom a schizo-affective type that rendered himunable to appreciate wrongfulness and adhere to arealistic, mature way of making decisions andfunctioning in society. Id. The government'spsychiatrist testified that, although Figueroa wasdepressed to the point of extreme apathy, he wasfully aware that his conduct was wrong and wascapable of conforming his conduct to therequirements of the law, if he chose to do so. Id.The appellate court, noting that the jury was freeto accept or reject the testimony of either experton the insanity issue, did not disturb their

judgment. It did, however, reverse Figueroa'sconviction on other grounds, described below.

As noted, the other hijacker from the summerof 1980, Rafael Castenada, once restrained, beganhitting his head against the bulkhead several timesand stating that he was crazy. Castaneda-Reyes,703 F.2d 522. After he was indicted, he plead notguilty by reason of insanity and underwentpsychiatric evaluation. At trial, he presented twoexpert witnesses to support his contention that hewas legally insane on the day of the incident. Theexpert opinions by these witnesses, a psychiatristand a psychologist, supported the appellant'sdefense. Casteneda's sister also testified incorroboration of his prolonged psychiatricdifficulties. The government responded with threeexpert witnesses, a psychiatrist, a psychologist,and a neurologist, who uniformly refuted theappellant's claim of insanity. As with Figueroa, itbecame a battle of experts, and the appellate courtupheld the jury's determination that the defendantwas legally sane.

The mental competency defense was notlimited to the Cuba cases, and was also attemptedby other unsuccessful skyjackers.

On June 4, 1971, Glen Elmo Riggs boarded aUnited Airlines flight in Charleston, WestVirginia, bound for Newark, New Jersey. Twentyminutes after takeoff, displaying a gun, Riggsdemanded that the plane be flown to Israel. Afterhe became convinced that a long-range plane hadto be obtained for the transoceanic flight, Riggspermitted the plane to land at Dulles Airport andthe passengers and flight attendants to disembark.Then, for more than three hours, Riggs remainedin the cabin of the plane talking to Flight EngineerGregory Colliton. Finally, Riggs placed the gunon a seat and walked over to a water fountain for adrink of water. Colliton took possession of thegun and Riggs was placed in federal custody. Hewas convicted by a jury of air piracy and wassentenced to two concurrent twenty-yearsentences. As in Figueroa and Castenda-Reyes,the appellate court upheld the jury's determinationon Riggs' sanity. United States v. Riggs, 470 F.2d505 (4th Cir. 1972).

Donald Lewis Coleman began actingsuspicious on a December 1971 AmericanAirlines' nonstop flight from Chicago to SanFrancisco, asking the flight attendant for a "ratherstrange drink" (creme de menthe and bourbon)and having several verbal exchanges with her. Atone point, he remarked, "I think I'll hijack aplane" and pulled out a gun and said, "all rightnow, I mean it." Coleman demanded a large sumof money and warned that the plane was not to go


below 25,000 feet because he had plasticexplosives in the cargo compartment. Colemanalso brandished a knife and asked severalpassengers if they were Secret Service agents.When the plane landed in Salt Lake City,Coleman made an unsuccessful attempt to jumpout of the side door. When apprehended in frontof the airplane, Coleman was crying and said"They wouldn't believe me, they wouldn't believeme." The gun was, in fact, a toy plastic revolver.FBI Agent Charles Shepherd, one of the arrestingofficers testified that Coleman asked to call hisattorney and that he overheard Coleman tell hisattorney that he had hijacked an airplane. FBIAgent Harry Jones, another arresting officer,stated that Coleman told him that he hadconsidered hijacking the airplane prior to boardinghis flight. It was Coleman's contention that therewas insufficient evidence to sustain thegovernment's burden of proving beyond areasonable doubt that he was mentally competentat the time the crime was committed. Thiscontention was rejected by the jury. United Statesv. Coleman, 501 F.2d 342 (10th Cir. 1974).

William Herbert Greene II boarded a DeltaAirlines flight departing from West Palm Beach,Florida, bound for Chicago, Illinois on April 17,1972. While the airplane was en route, he passed aflight attendant a note reading:

I have a gun When we land in Chicago want$500,000.00 cash small bills Refuel plane forenough to go to Nassau Bahamas Act normal!Bring money before anyone gets off plane

Greene agreed to allow the flight attendant, aswell as the passengers, to disembark in Chicagoand only the male crew members remained onboard. Once on the ground, Greene agreed tosurrender. At trial, the defense acknowledged thefacts, but suggested that Greene could not havesuccessfully completed the hijacking because hehad no weapon. The jury convicted him. Onappeal, Greene unsuccessfully challenged thesufficiency of the evidence to prove sanity beyonda reasonable doubt, argued that the jury shouldhave been required to make a special finding oninsanity, claimed that the government psychiatristviolated the defendant's Fifth or SixthAmendment rights, and argued the trial courtshould have instructed the jury on diminishedcapacity. United States v. Greene, 497 F.2d 1068(7th Cir. 1974).

Some of the accused skyjackers argued thatthe jury instructions erroneously treated air piracyas a general, rather than specific, intent crime.These claims were based on the definition ofconduct that comprised air piracy under the

predecessor statute, 49 U.S.C. § 1472(i)(2): "anyseizure or exercise of control, by force or violenceor threat of force or violence and with wrongfulintent, of an aircraft in flight in air commerce."

Ronald Bohle, for example, argued that thewords "wrongful intent" in the air piracy crimefailed to describe the requisite specific intent andrendered the statute unconstitutionally vague.Rejecting this claim, the court refused to find thatCongress intended to make aircraft hijacking acrime only if the hijacker intended to permanentlydeprive the owner of it. The court agreed with thegovernment and the district court that thewrongful intent referred to in the statute is nomore than the general criminal intent presentwhen one seizes or exercises control of an aircraftwithout having any legal right to do so. RafealCasteneda tried a similar tactic, contending thatthe district court erroneously failed to instruct thejury that the air piracy crime he was charged withattempting was a specific intent crime. He too wasunsuccessful.

Whether air piracy is a specific or generalintent crime is important when a defendant seeksto use a mental defense, since it impacts whetherthe accused can present a defense of diminishedmental capacity, short of a claim of insanity. Thisissue was addressed in the infamous Busic case.

IV. The Busic case

One of the strangest air piracy incidentsoccurred in 1976, when a group of politicalactivists decided to hold a political seminar in thesky . United States v. Busic, 592 F.2d 13 (2d Cir.1978). The following factual account is takenfrom the court's opinion.

On Friday evening, September 10, 1976,Trans World Airlines Flight 355 took off fromLaGuardia Airport for Chicago. On board theBoeing 727 aircraft were seven crew membersand 85 passengers, including Zvonko Busicand Julienne Busic, who were traveling ashusband and wife under assumed names, andMarc Vlasic, Petar Matanic, and Franc Pesut,who were separately seated on the aircraft andalso travelling under assumed names. All fivehad boarded the aircraft pursuant to anagreement and instructions masterminded byZvonko Busic. Each had received a planeticket and a package of leaflets from Busic,along with departure-time instructions anddirections not to congregate at the airport.

Shortly after take-off, Zvonko Busic handedflight attendant, Tom Van Dorn a sealedenvelope to deliver to the captain and thenproceeded to the lavatory. Inside the cockpit,


Captain Carey opened the envelope and readthe following note:

"One, this airplane is hijacked.

Two, we are in possession of five gelignitebombs, four of which are set up in cast ironpans giving them the same kind of force as agiant grenade.

Three, in addition, we have left the same typeof bomb in a locker across from theCommodore Hotel on 42nd Street. To find thelocker take the subway entrance by theBowery Savings Bank. After passing throughthe token booth there are three windowsbelonging to the bank. To the left of thesewindows are the lockers. The number of thelocker is 5713.

Four, further instructions are contained in aletter inside this locker. The bomb can only beactivated by pressing the switch to which it isattached, but caution is suggested.

Five, the appropriate authorities should benotified from the plane immediately.

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

Id. at 17.

The captain immediately radioed the contentsof the note to authorities and dialed the skyjackcode for the air traffic control radar locationcenter. Meanwhile, Zvonko Busic entered thecockpit wearing what appeared to be three sticksof dynamite connected to a battery. Busic orderedCaptain Carey to fly the airplane to Europe.

En route to Montreal for a refueling stop,Busic explained that the purpose of the hijackingwould become clear when the authorities read thenote accompanying the bomb in the subwaylocker and that, upon receipt of a prearrangedcode word indicating that their demands had beenmet, the hijackers would surrender in Europe. Atthe same time, Julienne Busic was handing outcopies of leaflets to the passengers, seeking theirsupport for a free Croatia, independent ofYugoslavia. Zvonko Busic also wanted theleaflets dropped from the airplane over Londonand Paris.

Throughout the ordeal, Julienne Busicconversed freely with the passengers andencouraged them to ask questions about thepropaganda. Petar Matanic's assignment was tostand up at the front of the passenger section witha tear gas gun, apparently to keep order. LikeJulienne Busic, Matanic talked with the

passengers throughout their ordeal, furtherexplaining the purpose of the hijacking.

Marc Vlasic delivered an order from ZvonkoBusic to Franc Pesut that Pesut take a seat in therear of the aircraft and hold a purported bomb onhis lap. Pesut did so for almost the entire trip,although, he twice sat in the cockpit with CaptainCarey for about an hour. Throughout the flight,Zvonko Busic reminded Captain Carey that theaircraft could be blown up at any time if thedemands were not met.

Meanwhile, responding to the hijack note thatCaptain Carey had transmitted, members of theNew York City Police Department Bomb Squadlocated subway locker 5713 and found it tocontain what appeared to be a bomb andadditional propaganda. The highjackers demandedthat their materials be published in the followingday's editions of the New York Times, all threeeditions, Los Angeles Times, Chicago Tribune,International Herald Tribune, and WashingtonPost. While attempting to deactivate the bomb,one officer was killed and one was seriouslyinjured.

After the aircraft landed in Paris, ZvonkoBusic told Captain Carey that they need onlyawait reception of the prearranged code word.Twelve nerve-racking hours followed for Careyand his passengers, and as time passed, still nocode word was received. The passengers weretwice herded together in the center of the cabinwhile Zvonko Busic and Vlasic threatened to killthem. Eventually, Julienne Busic left the aircraftto contact information sources in the United Statesto confirm that the two propaganda texts had beenpublished as demanded. Two hours later JulienneBusic telephoned Zvonko Busic on the aircraftand told him that the demands had been met. Thedefendants finally surrendered some thirty hoursafter the seizure began.

All defendants testified at trial. Zvonko Busicfreely admitted his role as the mastermind andattempted to take full blame for the hijacking. Healso admitted having placed the bomb in thesubway locker. He raised a psychological defense,maintaining that he was incapable of forming therequisite intent to commit the offenses charged.Julienne Busic testified that she never intended toparticipate in the hijacking, but only went alongwith her husband because she thought she waspregnant and feared she would never see himagain if she refused. Matanic and Pesut eachtestified that he had been invited to accompanyZvonko Busic to Chicago for a secret politicalmeeting where they were to deliver the leaflets.Once on the plane, Zvonko Busic purportedly


forced them to cooperate in the hijacking with thethreat of death.

The Busics, Matanic, and Pesut were allconvicted of violations of the Anti-hijacking Actof 1974. Specifically, all four defendants werefound guilty of aircraft piracy and conspiracy tocommit aircraft piracy. The Busics were alsoconvicted of aircraft piracy resulting in the deathof another. Vlasic pled guilty to aircraft piracyprior to trial and received a sentence of thirtyyears' imprisonment with the provision that hewould be immediately eligible for parole at thediscretion of the United States ParoleCommission. Matanic and Pesut each receivedthirty-year sentences. The Busics received lifesentences.

While in prison, Jullienne Busic sufferedremorse and considered becoming a nun. Shestruck an acquaintance with Kathleen Murray, thewife of the New York City police officer killedwhile trying to deactivate the bomb. After herrelease in March 1989, Julliene Busic was hiredby the Croatian Embassy in the United States tohandle cultural and press affairs. David Binder,Terrorist Bombing Brings Widow, HijackerTogether, PORTLAND OREGONIAN, December 20,1994, at A11. In April 1987, Zvonko Busic brieflyescaped from his upstate New York prison, butwas recaptured as he sat on the porch outside arural Pennsylvania store. Associated Press,Hijacker Recaptured After Prison Escape,WASHINGTON POST, April 19, 1987, at A12. TheCroatian Parliament, in December 2002, voted toseek the extradition of Zvonko Busic, who hadserved twenty-six years of his thirty-yearsentence, urging the United States to let him serveout his remaining four years in a Croatian prison.Associated Press, Parliament seeks extradition ofCroat terrorist from U.S., ASSOCIATED PRESS

NEWSWIRES, December 13, 2002.

V. Nonpolitical skyjackings

The Busic case is a classic example of apolitical crime. Other skyjacking incidents weremotivated by more self-serving goals. Forexample, in the case of William Herbert GreeneII, described in Section III above, the defendantdemanded $500,000 and the rerouting of a DeltaAirlines flight to the Bahamas. Some of thesecases, like the following 1972 incident in thePacific Northwest, illustrate the outer edges ofaccomplices' liability.

A. Lumomir Peichev (1972)

In June 1972, Lumomir Peichev, MichaelAzmanoff, and Dimitr Alexiev traveled to Hopeand Puntzi, two remote landing sites, both over

100 miles from Vancouver. While on this trip,they made plans to hijack an airplane and fly it toa remote airport in Canada. There, a fourth personwould be waiting to take the skyjackers to anapartment hide-out in the outskirts of Vancouver.Peichev was to rent a private plane and meet themat an auxiliary landing strip in case the hijackedplane was unable to land at the preferred airport.

The three men returned to San Francisco and,on July 1, 1972, met Illia Shishkoff. She agreed tomeet Peichev on July 4, at the Vancouver Airportand rent an apartment in the outskirts of the city.On July 3, Peichev withdrew $1,700 from hisbank account and borrowed a gun under the guiseof a need to protect himself. Later that day he metAlexiev and Azmanoff who gave him a planeticket to Seattle and told him to take a bus toVancouver. After meeting Shishkoff inVancouver, Peichev rented two cars and traveledwith Shishkoff to Hope airport, approximately100 miles, and returned to Vancouver.

The following day, July 5, Peichev rented aprivate plane and hired a pilot only to learn thatthe hijack attempt had failed. He proceeded toPuntzi airstrip where he spent the night and thenreturned to Vancouver. In Vancouver he metShishkoff, arranged for the return of the rentalcars, and then returned to San Francisco. Thatsame day, Azmanoff and Alexiev hijacked aPacific Southwest Airline flight scheduled totravel from Sacramento to San Francisco. Theydemanded $800,000, parachutes, and air charts ofCanada, Alaska, and the Soviet Union. After theplane landed in San Francisco, an FBI agent,posing as an international pilot, was allowed toboard the plane. Gunfire ensued and Azmanoffand Alexiev were killed. Prior to his death,Azmanoff killed one passenger and woundedthree others. The FBI agents found a map ofBritish Columbia, Canada, and a small piece ofnote paper containing the map coordinates ofPuntzi airstrip, on the bodies of the hijackers.

Peichev was charged with aiding and abettingaircraft piracy (18 U.S.C. § 2; 49 U.S.C.§ 1472(i)), conspiracy to commit aircraft piracy(18 U.S.C. § 371), and conspiracy to commitextortion by means of aircraft piracy (18 U.S.C.§ 1951). At trial, Peichev conceded that he renteda plane and flew to the Puntzi airstrip byprearrangement with Azmanoff and Alexiev, butcontended that he was coerced to do so. The juryreturned a verdict of guilty on all counts. Thecourt sentenced Peichev to life on count one andto twenty years on count three, both sentences torun concurrently.


On appeal, Peichev argued that the evidencewas insufficient to support his conviction ofaiding and abetting aircraft piracy. He concededthat the evidence was sufficient to show aconspiracy, but argued that the government didnot show that he aided and abetted in theperpetration of the crime. The Ninth Circuit heldthat evidence Peichev assisted in planning the

hijacking of [an] aircraft and at [the] time of[the] hijacking was in Canada en route to [the]air strip pursuant to [the] plan to assist [the]escape of [the] perpetrators supportedconviction as aider and abettornotwithstanding the defendant's substantialdistance from site of [the] hijacking and [the]fact that [the] criminal plot was foiled beforethe defendant could be of assistance.

United States v. Peichev, 500 F.2d 917 (9th Cir.1974).

B. Charles Compton (1991)

In February 1991, Charles Compton flew onSouthwest Airlines from Oakland to Houston viaSan Diego. Forty-five minutes into the flight,Compton handed the senior flight attendant, DianeColvin, a note that read:

I have nitro in my hand and a bomb in myluggage. I want $13 Million ransom for planeand passengers. Stop in New York. Have $13million waiting. Pick up. Refuel. Fly to Cuba.I am not alone

L.L.A.

Colvin was frightened by the message andbelieved that the plane was being hijacked. Sheshowed the note to another flight attendant, MariaBlanks. Blanks advised Captain William Schmidt,that the plane was being hijacked. Schmidtnotified air traffic controllers. To avert the loss ofair pressure in the event of an explosion, CaptainSchmidt descended from an altitude of 26,000 feetto 10,000 feet. This maneuver put the plane on aroute that Captain Schmidt had never flownbefore and created a danger to the aircraft andpassengers. Schmidt told flight attendants to tellthe hijacker that the aircraft did not have enoughfuel to make it to New York and that the planewould have to land in San Diego to refuel.

When advised of the need to refuel, Comptonannounced, "I'm not serious." Colvin continued tobelieve that he was serious and that there was abomb and an accomplice on the plane. She wasunable to perform her usual duties because shewas watching Compton and keeping Schmidtinformed of his activities. When the plane landedin San Diego, Compton was arrested. The plane

was searched and no bomb was found. Comptonlater explained that he had attempted to hijack theplane because he was down on his luck andneeded money. He said he had written the notebefore he boarded the plane and that the hijackinghad, at first, seemed an easy way to make money,but "after I got into it I decided it wasn't going towork."

Compton was indicted for air piracy inviolation of 49 U.S.C.App. § 1472(i), thepredecessor statute to § 46502, and with thecrimes of interfering with flight crew members byassaulting, intimidating, and threatening flightcrew members so as to interfere with theperformance of their duties (now codified at 49U.S.C. § 46504). He was convicted on bothcounts and sentenced to thirty years imprisonmentfor the attempted aircraft piracy and twenty yearson the second charge, to run concurrently.

On appeal, Compton challenged thesufficiency of the evidence, arguing that he didnot interfere with the performance of "a flightcrew member" since he merely handed a note to aflight attendant. Noting that the statute diddistinguish between a "flight crew member" and a"flight attendant," the appellate court stated that,by the note to Colvin, Compton intended to anddid set in motion a chain of events that interferedwith the captain. His use of a threat to seizecontrol of the plane was sufficient to constituteaircraft piracy. However, because the interferencecount was necessarily committed in completingthe air piracy offense, the judgment and sentenceas to the interference count was vacated.United States v. Compton, 5 F.3d 358 (9th Cir.1993).

C. ConAir

The 1997 film CONAIR (Touchstone Pictures1997) starred actors John Cusack, Nicholas Cage,and John M alcovic, and was about a group ofconvicts who plotted to escape from prison whilethey are traveling aboard a Bureau of Prisonsaircraft. Whether or not the film's producers wereaware of it, the plot was similar to an actualattempted jail break which turned into askyjacking. The following account comes fromJudge Wesley Brown's opinion in United States v.Hack , 782 F.2d 862 (10th Cir. 1986).

Lucas Owens and William Hack were inmatesserving their sentences in the Nevada State Prison.On February 18, 1984, they were on board aprisoner-transport plane taking them from Visalia,California, to Rock Springs, Wyoming, wherethey were scheduled to appear in state court oncriminal matters. There were six other inmates onthe plane, in addition to the pilot, Gary


Harrington, and the co-pilot, Dianne Witt, whoalso served as the armed guard. Each prisonerwore a leg iron and was handcuffed to a bellychain that threaded through the inmate's clothing.

On the first leg of the flight, Owens, who hadsome flight training, selected the seat directlybehind the co-pilot. He was very inquisitive aboutthe technical aspects of the plane and itsperformance capabilities. He asked about theplane's fuel reserve, how far and high it could fly,and the numbers and locations of the scheduledstops they intended to make.

The plane made an intermediary stop at Elko,Nevada, and Witt allowed the inmates to deplaneto use the restroom facility in the airport terminal.When they resumed their journey to Evanston,Wyoming, Owens had switched seats with Hack,so that Hack was seated directly behind theco-pilot.

During a stop at Evanston, the inmates weredirected to go inside the terminal while the planewas being serviced. Hack said that he needed touse the restroom and during this unobservedopportunity he managed to slip out of his bellychain. Hack tucked the chain back into his pantsto disguise that he had unfettered himself and thenhe re-entered the plane.

On final approach into Rock Springs,Wyoming. Hack stood up from his seat, and threwhis loose chain around the neck of the co-pilot.Witt managed to extricate herself from the chainby holding it off her throat with her left handwhile using her right hand to prevent Hack fromtaking her service revolver. During the struggle,Witt, with the assistance from the pilot, was ableto retrieve a gun from her flight bag and shootHack. Order was soon restored and the pilot, whowas also wounded by the bullet that had passedthrough Hack's mouth, was able to land the planesafely. Id. at 864-65.

The jury found Owens and Hack guilty ofconspiring to commit air piracy, and Hack guiltyof attempted air piracy. Hack was sentenced to afifty-year prison term to run concurrently with afive-year prison sentence he and Owens receivedfor the conspiracy conviction. Id. at 864. Onappeal, their convictions were affirmed. Id. at 87.

VI. Other skyjacking issues

Some of the foregoing skyjacking casesinvolved legal issues relevant to air violence, andto counterterrorism jurisprudence generally.

A. The CIA defense

The first American skyjacking, perpetrated in1964 by Ronaldo Lopez-Lima, involved the CIA

or "public authority" defense. United States v.Lopez-Lima, 738 F. Supp. 1404 (11th Cir. 1990).When the case finally came to trial in 1990, thecourt concluded that Lopez-Lima's version ofevents, if believed, would constitute a legallycognizable defense to the criminal charges againsthim and would serve to negate his wrongfulintent, a requisite element of the skyjackingoffense. It held that the classified information thatLopez-Lima sought to introduce to substantiatehis version of events was relevant to his defense,and announced it would admit it over thegovernment's objections that it was prejudicial andmisleading or violative of the hearsay rule. Id. at1413. The court also announced that Lopez-Limawould be permitted to testify to his version of thefacts and to present competent evidence, includingclassified information, in support of his defense.Id.

The "public authority" doctrine is a limitedexception to the rule that a defendant's mistake oflaw is not a defense. If a defendant can show thathe believed his actions were sanctioned by agovernment component with actual, as opposed toapparent, authority to undertake such actions, hecan argue that such sanction negates his criminalintent, if the defendant acted in reasonablereliance on an actual U.S. government agent. Thisdoctrine required the Lopez-Lima court to enterinto an interesting analysis of whether the CIA, atthe time of the defendant's 1964 actions, had realauthority to authorize an illegal hijacking, andwhether some of the persons the defendant listedas contacts were actual CIA assets.

B. Air violence charging decisions

The North Carolina case of Bobby RichardWhite, who attempted to hijack a PiedmontAirline flight with a phony bag of nitroglycerinand sulfuric acid, as set forth in Section II. A.above, represents an interesting charging decisionby prosecutors. Instead of air piracy, White wascharged under the felony hoax statute, 18 U.S.C.§ 35(b), and ultimately received a four-year prisonsentence. White appealed his conviction, arguingthat the indictment was fatally defective forfailing to allege all the essential elements of the§ 35 crime, in that it failed to allege specificallythe intent required to constitute a violation of 18U.S.C. § 32, and that the government failed toprove his intent to damage or destroy an aircraftbecause his particular threats were alwaysconditional. Rejecting these claims, the courtnoted that White's threats were of certain,imminent harm to the aircraft unless there wascompliance with his demand that he be flown toCuba, and that the law of criminal assault is filledwith examples of such qualified threats which


have served as the basis of convictions. Amongthe threats uttered by White to Captain Fox wasthe following: "Well, I don't want to take anychildren's father with me, but unless we get going,I am going to drop this and blow us up."United States v. White, 475 F.2d 1228, 1236 (4thCir. 1973).

C. Elements and limits of skyjacking offense

The cases of Carlos Figueroa, Section II.B.above, Antonio Vigil-Montanel, Section II.C.above, and Edward Ramon Mena, Section II. C.above, added elements to the law of theskyjacking offense, and guidance for prosecutorsfaced with these types of cases in the future.

Carlos Figueroa, the polite attempted hijackerwhose physical stature hardly made him anintimidating presence, used a note in his 1979attempt to commandeer a flight to Cuba, but hisplan was thwarted. United States v. Figueroa, 666F.2d 1375 (11th Cir. 1982). At his trial, h iscounsel asked for and received a jury instructionon the lesser-included offense of attempted airpiracy. He was convicted of both the attempt andthe substantive offense. On appeal, whileconceding that he used the threatening note in anattempt to intimidate, and hijack the plane, heargued that the government had presented noproof that he did what he was charged with doing:attempting to hijack by force or violence. Heclaimed that the government failed to show that hemade any physical gesture which constituted forceor violence within the traditional meaning of thoseterms. The prosecution countered that Figueroa'sact of threatening imminent harm to innocentpeople was sufficient to establish the element offorce as charged, and that evidence of physicalaction is not required. The prosecution furtherargued that a note calculated to compel the pilot tochange destinations against his will was clearlysufficient to constitute force.

The Eleventh Circuit agreed with the defense,based on the legislative history of the air piracystatute then existing. Id. at 1378. The court notedthat, as originally adopted in the 1961amendments to the Federal Aviation Act of 1958,the definition of aircraft piracy meant only seizureor exercise of control "by force or violence orthreat of force or violence." The statute wasamended in 1974 by adding the words "or by anyother form of intimidation." Id. This legislativehistory, according to the court, meant that theamendment was considered by Congress to be anexpansion of the definition, not a reiteration.Confronting the question of whether evidence ofthreats and intimidation is sufficient to prove theelement of force under the air piracy statute, the

court concluded it was not. It expressly rejectedthe argument that the government's proof ofthreats and intimidation, rather than force orviolence, was merely an acceptable variancebetween the indictment and the proof. Instead, itconcluded that Figueroa's conviction constituted aconstructive amendment of the indictment ratherthan a simple variance between the indictment andthe proof. As it stated:

If we allow Figueroa's conviction to stand, wewould in effect permit the government tosubstitute the term "threats and intimidation,"which the government proved but the grandjury did not charge, for the term "force andviolence," which the grand jury charged butwhich the government could not prove. Thisis precisely the alteration of the chargingterms of the indictment that Salinasproscribes.

Id. at 1379. The court remanded the case withdirections to enter a judgment of conviction of thelesser-included offense and for resentencing.

In his appeal , Edward Ramon Mena tried anargument similar to Figueroa's: that thegovernment failed to prove these elements beyonda reasonable doubt, because Mena failed to seizeor exercise control of the plane. United States v.Mena, 933 F.2d 19 (1st Cir. 1991). M ena'sargument was based on the pilot's coolness underpressure, (for example, alerting the control towerof the hijacking, persuading Mena of the necessityto land in San Juan, and undertaking aeronauticalsabotage), arguing that the crew neverrelinquished control of the aircraft. Defensecounsel claimed that, at most, the evidenceestablished merely an attempt, a crime with whichhe was not charged.

The Mena court rejected this argument, usinglanguage which, when compared with theFigueroa court's holding, illustrates theimportance of the specific facts:

According to the trial testimony, Menaapproached the cockpit in mid-flight, dressedin militaristic garb and carrying what heproclaimed was a "sensitive explosivedevice." He threatened to blow up the aircraftunless he was flown to Cuba. He was flickinghis lighter in a way that indicated awillingness to ignite the fuse. Even afterreceiving false assurances from the pilot,Mena did not simply repair to his seat; he satdown sideways, assuming a position fromwhich he could watch both the pilots (fore)and the passengers (aft). At all times, he keptthe menacing device prominently in view.Moreover, Mena's actions were not


completely unproductive. The crew did notovertly challenge his hegemony. There wasalso significant disruption of the flight'snormal routine: other aircrafts were vectoredout of the way, an unwonted landing prioritymaterialized, and the ordinary taxi run wasprolonged. Although the passengers and crewwere able to deplane shortly after arrival, thepilot's departure was delayed. Mena himselfappropriated the aircraft's flare gun andremained aboard for several hours, in solephysical control of the aircraft, continuallydemanding to be taken to Cuba.

Id. at 23-24.

The Mena court also considered, and rejected,his argument that his conduct was not proven tobe "within the special aircraft jurisdiction of theUnited States" within the meaning of theskyjacking crime. Id. at 24. He claimed that hisguilt must be judged solely on the basis of hisconduct up until disembarkation began. Therefore,because the airplane landed when and where itwas scheduled to land, no "forced landing" wasinvolved. Id. Refusing to reverse on this ground,the court noted that the landing probably wouldnot have occurred as it did had the pilot not beenaware of the menace Mena posed. Id. at 25. Thus,the aircraft remained within the special aircraftjurisdiction of the United States until Menadeplaned. The fact that Flight 329 landed on timeat its planned destination neither disproved thefact that air piracy may have occurred, nor barredthe jury from reaching the reasonable conclusionthat M ena had taken control of the aircraft.

Antonio Vigil-Montanel, one of thedefendants carrying bottles of gasoline on a 1983flight from Tampa to Miami and who received atwenty-five year sentence for attempted hijacking,argued in his appeal that there was no directevidence of his intent to hijack the plane, and thathe was convicted merely because he was a Cubanrefugee who had recently arrived in theUnited States. The Eleventh Circuit disposed ofthese arguments more easily than the courts inMena and Figueroa:

A defendant's intent can be inferred from hisconduct and all the surroundingcircumstances. In the instant case, criminalintent is easily inferred from thecircumstantial evidence found in the record.The jury chose not to accept the appellants'unbelievable explanations of their conduct,and concluded that they were guilty.

United States v. Vigil-Montanel, 753 F.2d 996,999 (11th Cir. 1985) [citation omitted].

D. The limits of federal jurisdiction over airviolence

Finally, the prosecutorial limits to theskyjacking offense are further delineated in thecase of Barbara Pliskow, who boarded an aircraftat the Detroit airport on September 24, 1971,armed with two sticks of dynamite and a .25caliber automatic pistol. Having been informedthat Pliskow was going to attempt an airplanehijacking, the United States Marshals ordered thatthe plane be evacuated under the pretext ofmechanical difficulties. After exiting the plane,Pliskow was recognized by Marshals and Detroitpolice in the terminal. As they approached her,she drew her pistol and shouted that everyone wasgoing to die. Following a struggle, Pliskow wasarrested, and the pistol and dynamite seized. Thetargeted plane never left the terminal gate, and itsengines were never started. These factors lead thecourt to conclude that Pliskow could not beprosecuted under the federal skyjacking statute:

In the circumstances of this case, since theaircraft was not in flight at the time of thealleged offense, it is clear that the Defendantcould not properly be indicted for theconsummated offense of aircraft piracy. TheGovernment admits this. It is much less clear,however, whether the actions of theDefendant can serve as the basis forprosecution under Section 1472(i) forattempted aircraft piracy. For reasons whichare now a matter of record, this court decidedthat such a prosecution was not precluded bythe fact in the aircraft in question was not "inflight". In doing so, however, it did not havethe benefit of the legislative history which hasnow been brought before the court. . . . In ourcase, nothing about the "unique requirementsof air transportation" dictates that Federal,rather than local, authorities should handle thesituation. Defendant had boarded and thenexited a plane which was parked at theterminal gate. She was spotted and seized inthe terminal with the assistance of Detroitpolice. Local authorities were clearly capableof handling the situation. It appears clear tothis court, from the legislative history of theAct, that it was not the intent of Congress thatFederal jurisdiction should attach in thesecircumstances. . . . This court takes a backseat to no one in deploring "hijackings"which, in spite of their reprehensibility, havebecome increasingly commonplace.Hopefully, appropriate law enforcementaction will some day succeed in preventingsuch crimes. This court's decision should inno way impede such prevention, but will


instead implement the clear intent of Congressthat, in situations such as the one in this case,prosecution of the person accused is best leftin the hands of local authorities, withoutFederal intervention.

United States v. Pliskow, 354 F. Supp. 369,371-73(E.D. Mich. 1973).�

ABOUT THE AUTHOR

�Jeff Breinholt currently serves as Deputy Chiefin the Counterterrorism Section where he overseesthe U.S. nationwide terrorist financing criminalenforcement program. He previously served as theRegional Antiterrorism Coordinator for thewestern and Pacific states and as a trial attorney inthe Counterterrorism Section's internationalterrorism branch. He joined the JusticeDepartment with the Tax Division in 1990, andspent six years as a Special Assistant U.S.Attorney in the District of Utah before joining theCriminal Division in 1997. He is a frequentlecturer and author on intelligence and lawenforcement matters, and was recently honoredwith the Attorney General's Award for Excellencein Furthering the Interests of U.S. NationalSecurity. His forthcoming book, CounterterrorismEnforcement: A Prosecutor's Guide, will beavailable through the Office of Legal Education.a

A Smokescreen for TerrorismD. Scott BroylesAssistant United States Attorney Western District of North Carolina

Martha Rubio Counter Terrorism Section Department of Justice

I. Introduction

In early 1995, Detective Robert Fromme ofthe Iredel County, North Carolina, Sheriff'sDepartment, noticed something strange whileworking off-duty as a security guard for J.R.Tobacco, a wholesale distributor of tobaccoproducts, in Statesville, North Carolina. Forseveral weeks, Detective Fromme observedindividuals driving vans with out-of-state licenseplates making large purchases of cigarettes. Thesemen had grocery bags full of cash, and clearlywere not commercial truck drivers. Surveillancetracked some of these vehicles to the Virginia andTennessee state lines.

What followed from Detective Fromme'sobservations was a four-year investigationinvolving over fifteen local, state, federal, andinternational, law enforcement and intelligenceagencies. It led to the arrest and conviction oftwenty-six individuals for crimes including

immigration fraud, visa fraud, cigarettesmuggling, interstate transportation of stolenproperty, fraud, bank fraud, bribery, moneylaundering, racketeering, and, most importantly,providing "material support" to Hizballah, aterrorist organization. The case culminated in thetrial of United States v. Hammoud, 3:00CR-147-MU (W.D. N.C. June 21, 2002) which establishednew legal precedents, and involved the applicationof investigative techniques that were previouslylimited to the national security realm. The casealso provided a view of how terroristorganizations operate and raise funds in theUnited States and, ultimately, an example of howcriminal prosecutions can disrupt such activity.

II. The Charlotte Hizballah cell

Hizballah is a radical Shia group, formed inLebanon in 1982, that is dedicated to increasingits political power in Lebanon and opposing Israeland the Middle East peace negotiations. Thegroup operates primarily in the Bekka Valley inLebanon, the Southern suburbs of Beirut, andSouthern Lebanon. It espouses strong anti-Westand anti-Israeli views. Prior to the events ofSeptember 11, 2001, Hizballah was responsiblefor murdering more Americans than any otherterrorist group. The group is known, or suspected,of being involved in several notorious attacks


against U.S. interests overseas, including thesuicide truck bombing of the U.S. Embassy andU.S. Marine barracks in Beirut in October 1983that killed over 200 U.S. Marines, and thebombing of the U.S. Embassy annex in Beirut inSeptember 1994. Hizballah was also responsiblefor the kidnapping of numerous United States andother Western hostages in Lebanon during the1980s and 1990s, and several airplane hijackingsin the Middle East. More recently, severalmembers of the Saudi faction of Hizballah wereindicted in the Eastern District of Virginia oncharges that they were responsible for the 1993Khobar Towers bombing in Saudi Arabia thatkilled nineteen U.S. servicemen and woundednearly 400 others.

Although Hizballah has not conducted aterrorist operation in the United States, accordingto the FBI, the group maintains a sizable presencein this country. U.S.-based Hizballah cells, forexample, have been involved in activities thatprovide logistical support to terrorism, such asfund-raising, recruiting, and spreading propagandainside our country. The investigation in this caseeventually established that the group of menDetective Fromme observed purchasing largequantities of cigarettes at J.R. Tobacco weremembers of such a cell. The cell, led by MohamadHammoud, was bound together by family ties,religion, criminal activities, and an associationwith, and sympathy for, Hizballah. Indeed,members of the group engaged in a wide varietyof fraud and other criminal activities which, inturn, funded the group's support of Hizballah.

At the time the investigation unfolded in1996, Congress had only recently enacted 18U.S.C. § 2339B, which prohibited the provision of"material support and resources" to a designatedforeign terrorist organization. The Antiterrorismand Effective Death Penalty Act of 1996(AEDPA), PUB. L. NO. 104-132, 110 Stat. 1214,made it illegal for persons within theUnited States, or subject to the jurisdiction of theUnited States, to "knowingly" provide, attempt toprovide, or conspire to provide, "material supportor resources" to a designated group. See AEDPA,§ 303; 18 U.S.C. § 2339B(a)(1). The statutedefines "material support or resources" to mean"currency or monetary instruments or financialsecurities, financial services, lodging, training,expert advice or assistance, safehouses, falsedocumentation or identification, communicationsequipment, facilities, weapons, lethal substances,explosives, personnel, transportation, and otherphysical assets, except medicine and religiousmaterials." 18 U.S.C. §§ 2339A(b); 2339B(g)(4).

The challenge for prosecutors in this case wasto develop charges that would encompass all ofthe group's activities, while simultaneouslyexposing the group for what it was, a Hizballahfinancing cell. Section 2339B and the RacketeerInfluenced and Corrupt Organizations Act (RICO)provided such tools. 18 U.S.C. §§ 1961-1968.RICO, in particular, allowed the prosecutors in thecase to include acts of illegality that wereotherwise time barred because of the length oftime it took law enforcement to uncover the illegalactivity. It also allowed prosecutors to presentevidence of fund-raising activities that dated backa number of years, that were not otherwisecovered by the material support statute.

Ultimately, what the jury saw at trial wasevidence not only supporting the substantiveoffenses that were charged, but also chillingexamples of trade craft employed by terrorsupport cells in this country:

• the utilization of immigration fraud to enterthe United States and to establish residency inthis country;

• the reliance on multiple identities to avoiddetection by law enforcement;

• the resort to criminal activity to finance aterrorist group's operations;

• the use of propaganda to raise funds for agroup; and

• the procurement of weapons and other goodsfor a terrorist group's use.

Expert testimony introduced at the trialestablished that members of terrorist support cellsoften enter into false marriages, or commit othertypes of immigration fraud, in order to enter theUnited States. Hizballah operatives, in particular,are known to enter this country through SouthAmerica. In this case, Mohamad Hammoud, alongwith two cousins who were eventually charged ascoconspirators in the case, entered theUnited States in 1992 by purchasing fraudulentU.S. visas in Venezuela. Mohamad Hammoudmade several previous attempts to obtain a visafrom the U.S. Embassy in Damascus, Syria. Uponarriving at JFK International Airport, MohamadHammoud presented a Lebanese passport bearinga counterfeit U.S. Non-Immigrant visa stamp.Upon discovery of the fraud in New York,Mohamad Hammoud claimed "asylum," basedupon alleged persecution by Hizballah. OnDecember 14, 1993, an Immigration Judge deniedMohamad Hammoud's application for asylum andordered that he be excluded and deported from theUnited States. On December 27, 1993, Mohamad


Hammoud filed a Notice of Appeal with theBoard of Immigration Appeals.

Once in the United States, MohamadHammoud, entered into fraudulent marriages toUnited States citizens. For example, while hisasylum appeal was pending, Mohamad Hammoudapplied for adjustment of status based on analleged December 7, 1994 marriage to a SabinaEdwards. The Immigration and NaturalizationServices' (INS) documents submitted byMohamad Hammoud, and someone purporting tobe Sabina Edwards, were denied by the INS onthe grounds that the documents were fraudulent.Mohamad Hammoud was given until September6, 1996 to leave the United States. Undeterred,Mohamad Hammoud then entered into a secondfraudulent marriage in order to improve hisimmigration status, this time to Jessica W adel.When that marriage failed to secure his residencystatus, Mohamad Hammoud married AngelaTsioumas on September 12, 1997. He was notdivorced from Jessica Wadel at the time. Based onhis petition, and documents filed with the INSrepresenting that he was married to Tsioumas,Mohamad Hammoud was accorded ConditionalLawful Permanent Residence Status on July 8,1998. This status was accorded by the INSwithout knowledge of Mohamad Hammoud'sprevious fraudulent marriage to Sabina Edwards.

Mohamad's brother, Chawki Hammoud, andother relatives and members of the cell, engagedin similar conduct. Chawki Hammoud, forexample, married a codefendant in the case,Jessica Fortune, on July 12, 1994. Based on thedocuments filed in connection with his fraudulentmarriage to Fortune, Chawki Hammoud wasgranted Conditional Lawful Permanent Residenceon May 1, 1995. Although Jessica Fortune hadgenuine affection for Chawki Hammoud, theynever lived together as husband and wife. Duringthe time of this sham marriage, Chawki Hammoudwas actually married to his Lebanese wife, DalidaDarwiche, with whom he had children. TheHammoud's cousins and codefendants, MohamadAtef Darwiche (married in March 1996), AliHussein Darwiche (married in November 1999),and Ali Fayez Darwiche (married in May 1996),also entered into fraudulent marriages forpurposes of obtaining their immigration status.Notably, Ali Hussein Darwiche entered into asham marriage with a local Charlotte woman inexchange for cancellation of a debt she owed.

In some cases, members of the group resortedto bribing government officials. Said Harb, acodefendant and childhood friend of MohamadHammoud, induced his employees, Terri Pish andTonia Moore, to marry his brother, Hassiam Harb,

and brother-in-law, Samir Debek, respectively. Healso paid $10,000 to a local Charlotte man totravel to Lebanon for the purpose of entering intoa sham marriage with his sister, Fatme Harb,Samir Debek's wife. In the process of makingthose arrangements, Said Harb bribed an officialof the United States Embassy in Nicosia, Cyprus,assisted his relatives in obtaining fraudulentUnited States non-immigrant visas in Nicosia,and, in June and July 2000, attempted to bribe anofficial of the INS in the United States.

Once members of the cell establishedresidency in this country, they quickly worked toassume the identities of other individuals in orderto avoid detection by law enforcement, and tofurther their criminal activities. The investigationestablished that Mohamad Hammoud had twovalid North Carolina drivers licenses, one in hisname and another in an alias. MohamadHammoud also obtained other financial identitiesby purchasing or acquiring them from localLebanese students who had returned to Lebanonafter attending colleges in the Charlotte area.Mohamad Hammoud's codefendant, Said Harb,had so many identities that he needed a notebookin order to keep track of them. Harb toldauthorities that he would "max out" credit cardsthat he obtained with a particular identity, declarebankruptcy, then refrain from using the identityfor another seven years until the credit record wasexpunged. When he was arrested, Said Harb hadseven sets of false identities. Harb testified at trialthat he made at least $150,000 in profit peridentity.

In some instances, the cell members neverused the identities they acquired. A search ofChawki Hammoud's home uncovered anemployment authorization card with his picture,but in another person's name. Law enforcementofficials did not come across that name inconnection with any of Chawki Hammoud'sactivities during the entire four-year investigation.An expert witness testified at trial that this wasperfect "terrorist trade craft," in that a terroroperative would obtain a false identity that wouldremain unused until absolutely necessary.

With their residency status secured, the groupresorted to cigarette smuggling and credit cardbust-out schemes to support their activities in theUnited States and to raise funds for Hizballah, yetanother known pattern of a terror support cell'smodus operandi. In this case, the cigarettesmuggling scheme took advantage of varying taxrates on cigarettes in North Carolina andMichigan. At the time of the conspiracy, NorthCarolina taxed a carton of cigarettes at fifty cents,and no tax stamp was required on the pack or


carton to show the permitted state of possessionand resale. Michigan taxed cigarettes at a rate of$7.50 per carton and no tax stamp was required.Accordingly, a mini van loaded with 1,500cartons of cigarettes purchased in North Carolinahad the potential to generate more than $10,000 ofprofit from sales in Michigan.

In investigating the criminal activities of thegroup, traditional law enforcement techniqueswere employed to investigate the smugglingactivity:

• physical surveillance;

• seizures;

• subpoenas;

• search warrants;

• cultivation of witnesses;

• investigative grand jury;

• analysis of telephone records;

• placement of pen registers on target phones;

• pole cameras; and

• financial analysis.

By 1999, the investigation had establishedthat a core group of eight Charlotte residents,including the brothers Mohamad and ChawkiHammoud, and their employees, had purchasedapproximately $8 million worth of cigarettes inNorth Carolina for resale in the Detroit, Michiganarea, generating profits of between $1.5 millionand $2.5 million. These profits were launderedthrough fraudulent shells and alias names, and alarge portion reinvested in the smugglingenterprise.

More than a dozen individuals were principalsin the smuggling activities, and virtually all ofthem had multiple identities and forms of creditand financial accounts in each of their identities.The defendants involved in the smugglingroutinely used each other's aliases and accounts.The complex financial transactions involved in thegroup's purchase of the cigarettes, as well as theassociated money laundering, would generallyfollow this scenario. A conspirator, using an alias,would purchase bulk quantities of cigarettes froma wholesale distributor under the account ofanother conspirator or a front entity. The purchasewould be made largely in cash, generating aninvoice, but was often supplemented with a creditcard in an alias or in a coconspirator's alias, oreven a card assigned to a shell entity. Expensesassociated with delivery of the cigarettes toMichigan, such as vehicle rentals, gas, and hotels,were charged on different credit cards. In

Michigan, the smuggled cigarettes would usuallybe paid for in cash. At least one indicted Michigancustomer wired nearly $500,000 to an aliasaccount belonging to Mohamad Hammoud inMichigan. Hammoud then wired the funds to twoCharlotte bank accounts, one in his own name andanother in an alias. Funds were dispersed from allthree accounts to coconspirators and to covercredit card charges incurred in the smugglingactivity. Finally, the credit card debts would bepaid from other coconspirators' accounts, often inalias names.

Shell businesses and non-existent entitieswere created and used in connection with thecigarette smuggling operation. Eastway Tobaccoand Queen Tobacco, cigarette stores owned byChawki Hammoud, were operated by Mohamadand Chawki Hammoud primarily as "front" storesfor the smuggling operation. Other businesses,such as Cedars Restaurant and M & A OilCompany, were purchased with cigarettesmuggling proceeds.

III. The Charlotte cell's "material support" toHizballah

Subsequent to the initiation of the smugglinginvestigation, the FBI approached the U.S.Attorney's Office with information indicating thata Hizballah support cell existed in Charlotte,North Carolina. FBI source information indicatedthat in 1995, and continuing to July 20, 2000,Mohamad Hammoud was the leader of a group ofLebanese Shia M uslims who met for weeklyprayer meetings in Charlotte. As many as fortypeople might attend the meetings at which, amongother things, Mohamad Hammoud would speakabout Hizballah operations in Lebanon, screenpropaganda videotapes in which Hizballahviolence was encouraged and celebrated, andbroadcast speeches by such Hizballah leaders asHasan Nasrallah, the General Secretary of thegroup. These meetings generally concluded withan appeal for donations that Hammoud wouldsolicit on behalf of Hizballah. Source informationalso indicated that, in addition to the solicitations,Mohamad Hammoud insisted on setting aside acertain percentage of the illicit proceeds from thecigarette smuggling scheme for Hizballah.

At that time, the U.S. Attorney's Office alsolearned that codefendants Mohamad Hammoudand Said Harb were the subjects of court-authorized electronic surveillance under theForeign Intelligence Surveillance Act (FISA). 50U.S.C. §§ 1801-1811. These wiretaps wereeventually declassified and approved, by theAttorney General of the United States, for use attrial. They included evidence not only of cigarette


smuggling, money laundering, and financialfrauds, but Hizballah ties as well. Indeed, theFISA intercepts revealed that MohamadHammoud was in almost daily contact withindividuals in Lebanon, discussing Hizballah'smilitary operations. Among the interceptions wereconversations between Mohamad Hammoud andSheik Abbas Harake, Hizballah's militarycommander in the Beirut suburbs. MohamadHammoud was also captured in conversationswith his brothers in which they discussedHizballah's counter-intelligence operations andhigh level "martyrs" who were killed in operationsagainst the Israelis in Southern Lebanon.

In addition, during the course of theintelligence investigation, the FBI learned that theCanadian Security Intelligence Service (CSIS)had conducted electronic surveillance of aHizballah procurement operation in Vancouver,British Columbia. Charlotte codefendant, SaidHarb, was part of this procurement effort. Theoperation was overseen by Hizballah's Chief ofProcurement from Lebanon, Hassan Laqis, andcarried out by an operative trained by Iran'sRevolutionary Guard, Mohamad Dbouk.Hizballah wired tens of thousands of dollars fromLebanon to Canada for the purchase of "dual use"equipment, including night vision devices, GPSsystems, laser range finders, high-end computerequipment and aviation software, andsophisticated photography gear. Later in theprocurement effort, Hizballah entered into anagreement with its operatives in Canada topurchase equipment with fraudulent credit cards,and pay fifty cents on the dollar for all itemsprocured. In an unprecedented cooperative effort,CSIS granted permission to use its reports of theintercepted communications in the instant case.The district court ordered the CSIS reportsreceived into evidence pursuant to the hearsayexceptions of FED. R. EVID . 803(8) (Publicrecords and reports) and FED. R. EVID . 803(5)(Recorded recollection). CSIS went so far as toprovide surveillance photographs of Said Harband Ali Amhaz, a member of the procurementeffort, which were introduced at trial.

Finally, in July 2000, law enforcement agentsexecuted eighteen search warrants in Charlotteand arrested eighteen individuals. Along with thevaluable financial evidence seized in the searches,a virtual library of Hizaballah propaganda,including videotapes of Hizballah militaryoperations, incendiary anti-American speeches byHizballah leaders, books and pamphlets on thesubject of Hizbollah and Islamic extremist leadersand operations, were found in the home shared byMohamad Hammoud and other cell members.

Two receipts were found from ShaykhMuhammad Husayn Fadlallah, a "SpeciallyDesignated Terrorist," under Exec. Order. No.12,947, 60 Fed. Reg. 5079 (Jan. 23, 1995) and the"leading ideological figure of Hizballah." Alsofound was correspondence to Hammoud from acoconspirator confirming Hammoud's role asleader in the Hizballah fund-raising effort, andlinking the cigarette smuggling activity to theCharlotte Hizballah Cell.

As you know brother Mohamad, theResistance is always in need for support andthe distinction is that the Resistance's supportis on the shoulders of the weak so, if therewas an opportunity to work as you did at theend of the gatherings, donate to theResistance, and when one of the guys iscoming to Lebanon, especially here in thesouth, they need the support.

Among the correspondence in Hammoud's homewere letters to him from Hizballah's militarycommander for the Beirut suburbs referencingtheir former relationship and discussingHizballah's activities. "We knew each other in theseveral locations where we worked together.... Mybrother and loved one Mohamad, words arenothing but an illustration, hopefully accurately,towards a dear brother who has not forgotten hisfield of work...."

All of this evidence was introduced during thefive-week trial. In June 2002, Mohamad andChawki Hammoud were found guilty on allcharges. Mohamad Hammoud became the firstdefendant convicted, by a jury, of providingmaterial support and resources to a designatedforeign terrorist organization (Hizballah), ofRICO conspiracy alleging the host of crimes ofthe Charlotte Hizballah Cell, conspiracy tosmuggle contraband cigarettes, and conspiracy tolaunder the proceeds of the smuggling, amongother charges. He was sentenced to 155 years inprison. An appeal is pending.�

ABOUT THE AUTHORS

�D. Scott Broyles has been an AssistantUnited States Attorney in the Organized CrimeDrug Enforcement Task Force Section for theWestern District of North Carolina since 1997.Mr. Broyles was awarded the John MarshallAward for Outstanding Legal Achievement forTrial of Litigation for the U.S. v. Hammoud trial.Prior to coming to the Department he was inprivate practice in Augusta, Georgia.

�Martha Rubio is a trial attorney in theDepartment's Counterterrorism Section. She was


co-recipient of the John Marshall Award with Mr.Broyles. Ms. Rubio has been the Department ofJustice nine years. She has been assigned to theCounterterrorism Section for the last three years.a

Bolstering Cargo Container Security:How U.S. Attorneys' Offices CanMake a DifferenceStephen E. FlynnCommander, United States Coast Guard (Ret.)

Peter HallUnited States AttorneyDistrict of Vermont

I. Introduction

"Every time you talk about this [subject], itscares me to death," says Michael Shelby,United States Attorney for the Southern District ofTexas. Mr. Shelby has good cause for concern. Hisdistrict includes the Ports of Houston andGalveston that together load and receive moretonnage of material than any other port in theworld. Everyone in the U.S. Attorney communityshould be worried about this issue, whether yourdistrict is home to a major seaport, to truck and railterminals, or just miles of interstate highways.Cargo security remains one of America's gravestvulnerabilities and the stakes are greater than justthe potential for a ship, train, or truck, to serve as alow-tech weapons delivery device. If a catastrophicterrorist incident led to even a temporary shutdownof U.S. transportation systems, the cost to theeconomy would run into the billions of dollarswithin forty-eight hours. Should U.S. ports remainclosed for just three weeks while we struggle to sortthings out, the entire global trade system wouldeffectively grind to a halt.

II. The problem

The economic and societal disruption createdby the September 11, 2001 (9/11) attacks hasopened Pandora's box. Future terrorists bent onchallenging U.S. power will draw inspiration fromthe seeming ease at which America could be

attacked, and they will be encouraged by themounting costs to the U.S. economy, and thepublic psyche associated with the ad hoc effortsto restore security following that attack. Nineteenmen wielding box cutters forced the United Statesto do to itself what no 20th century adversarycould ever have dreamed of accomplishing: asuccessful blockade of the U.S. economy. If asurprise terrorist attack were to happen tomorrowinvolving the sea, rail, or truck transportationsystems that carry millions of tons of trade to theUnited States each day, the response would likelybe the same–a self-imposed global embargo.

United States prosperity, and much of itspower, relies on its ready access to globalmarkets. Both the scale and pace at which goodsmove between markets have exploded in recentyears, thanks in no small part to the invention andproliferation of the intermodal container. Theseubiquitous boxes–most come in the 40'x8'x8'size–have transformed the transfer of cargo froma truck, train, and ship, into the transportationequivalent of connecting Lego blocks. As aresult, the role of distance for a supplier or aconsumer as a constraint in the worldmarketplace has diminished. Ninety percent ofthe world's freight now moves in a container.Companies like Wal-Mart and General Motorsmove up to thirty tons of merchandise or partsacross the vast Pacific Ocean from Asia to theWest Coast for about $2,500. The transatlantictrip runs just over $1,800.

The system that underpins the incrediblyefficient, reliable, and affordable, movement ofglobal freight has one glaring shortcoming in thepost-9/11 world–it was built without crediblesafeguards to prevent it from being exploited ortargeted by terrorists and criminals. Prior to 9/11,virtually anyone in the world could arrange with


an international shipper or carrier to have an emptyintermodal container delivered to a home orworkplace. They then could load it with tons ofmaterial, declare in only the most general termswhat the contents were, "seal" it with a fifty-centlead tag, and send it on its way to any city or townin the United States. The job of transportationproviders was to move the box as expeditiously aspossible. Exercising any care to ensure that theintegrity of a container's contents was notcompromised may have been a commercialpractice, but it was not a requirement.

The responsibility for making sure that goodsloaded in a box were legitimate and authorized wasshouldered almost exclusively by the importingjurisdiction. As the volume of containerized cargogrew exponentially, the number of agents assignedto police that cargo stayed flat or even declinedamong most trading nations. The rule of thumb inthe inspection business is that it takes five agentsthree hours to conduct a thorough physicalexamination of a single, full intermodal container.Last year nearly 20,000,000 containers came acrossAmerica's borders via a ship, train, or truck. Frontline agencies had only enough inspectors andequipment to physically examine about 3 percent ofthat cargo.

Thus, for would-be terrorists, the globalintermodal container system, that is responsible formoving the overwhelming majority of the world'sfreight, satisfies the age-old criteria of opportunityand motive. "Opportunity" flows from: (1) thealmost complete absence of any security oversightin the loading and transporting of a box from itspoint of origin until it arrives on U.S. shores; and(2) the fact that the growing volume and velocity atwhich containers move around the planet create adaunting "needle-in-the-haystack" problem forinspectors. "Motive" is derived from the role thatthe container now plays in underpinning globalsupply chains, and the likely response by the U.S.government to an attack involving a container.Based on statements by key officials at U.S.Customs and Border Protection, TransportationSecurity Administration, U.S. Coast Guard, and theDepartment of Transportation, should a containerbe used as a "poor man's missile," the shipment ofall containerized cargo into our ports and across ourborders would be halted. As a consequence, amodest investment by a terrorist could yieldbillions of dollars in losses to the U.S. economy byshutting down, even temporarily, the system thatmoves "just-in-time" shipments of parts and goods.

Given the primitive state of container security,it is hard to imagine how a post-event lock-downon container shipments could be either prevented orshort-lived. One thing we should have learned from

the 9/11 attacks involving passenger airliners, thefollow-on anthrax attacks, and even the fall 2002Washington sniper spree, is that terroristincidents pose a special challenge for publicofficials. In the case of most disasters, thereaction by the general public is almost always toassume the event is an isolated one. Even if thepost-mortem provides evidence of a systemicvulnerability, it often takes a good deal of effortto mobilize a public policy response to redress it.Just the opposite happens in the event of aterrorist attack–especially one involvingcatastrophic consequences. When these attackstake place, the general public almost alwayspresumes a general vulnerability unless there isproof to the contrary. Government officials haveto confront head-on this loss of public confidenceby marshaling evidence that they have a crediblemeans to manage the risk highlighted by theterrorist incident. In the interim, as recent eventshave shown, people will refuse to fly, open theirmail, or even leave their homes.

If a terrorist were to use a container as aweapon-delivery device, the easiest choice wouldbe high-explosives such as those used in theattack on the Murrah Federal Building inOklahoma City. Some form of chemical weapon,perhaps even involving hazardous materials, isanother likely scenario. A bio-weapon is a lessattractive choice for a terrorist because of thechallenge of dispersing the agent in a sufficientlyconcentrated form beyond the area where theexplosive device detonates. A "dirty bomb" is amore likely threat vs. a nuclear weapon, but allthese scenarios are conceivable since the choiceof a weapon would not be constrained by anysecurity measures currently in place in ourseaports or within the intermodal transportationindustry.

This is why a terrorist attack involving acargo container could cause such profoundeconomic disruption. An incident triggered byeven a conventional weapon going off in a boxcould result in a substantial loss of life. In theimmediate aftermath, the general public will wantreassurance that one of the many thousands ofcontainers arriving on any given day will notpose a similar risk. Government leaders wouldhave to stand before a traumatized, and likelyskeptical, American people and outline themeasures in place to prevent another such attack.In the absence of a convincing securityframework to manage the risk of anotherincident, the public would likely insist that allcontainerized cargo be stopped until adequatesafeguards are implemented. Even with the mostfocused effort, constructing that framework from


scratch could take months–even years. Yet, withinthree weeks, the entire worldwide intermodaltransportation industry would effectively bebrought to its knees, as would much of the freightmovements that make up international trade.

III. The imperative

To prevent this potential nightmare, what isrequired is an effective risk management approachto container security. Prior to 9/11, the elements tounderpin such an approach were simply not up tothe task.

Before the most recent post-9/11 initiatives toenhance container security, the means forconcluding that a shipment was legitimate, at itspoint of origin, was based strictly on an evaluationof the requisite documentation accompanying theshipment. If there were no discrepancies in thepaperwork and a shipper had a good compliancetrack record, the shipments were automaticallycleared for entry. However, the requirementssurrounding the documentation for these "trustedshippers," charitably put, were nominal. Forinstance, shippers involved in consolidating freightwere not required to itemize the contents or identifythe originator or the final consignee for theirindividual shipments. The cargo manifest wouldsimply declare the container had "Freight All Kind"(F.A.K.) or "General Merchandise." The logicbehind taking this approach was straightforwardwhen the primary inspection mandate was to collectcustoms duties. The presumption was as long as acompany maintained appropriate in-house records,the data presented up front could be kept to the bareminimum. Compliance could be enforced byconducting audits.

Inspectors, intent on confirming that theintegrity of a container had not been violated on itsway to its final destination, relied primarily on anumbered seal that is passed through the pad-eyeson the container's two doors. As long as the numberon the seal matched the cargo manifest, and therewere no obvious signs of tampering, the container'scontents were assumed to be undisturbed. Thisremains the case today even though front-lineenforcement agents have known for some time thatthere are a number of relatively straightforwardways to break into a container, including removingthe door hinges, without disturbing the seal.

A risk management plan, on the other hand,addresses the security risk from a differentperspective. At its heart, risk management presumesthat there is a credible means to: (1) target, safelyexamine, and isolate containers that pose a potentialthreat; and (2) identify legitimate cargo, themovement of which can be facilitated withoutsubjecting it to an examination. The alternative to

risk management is to conduct randominspections or to subject every cargo container tothe same inspection regime. Risk management isthe better of these two approaches for botheconomic and security reasons. The economicrationale is straightforward. Enforcementresources will always be finite and delays tolegitimate commerce generate real costs.

Less obvious is the security rationale for riskmanagement. There is some deterrent value toconducting periodic random inspections.However, over 99 percent of shipments areperfectly legitimate and belong to severalhundred large importers. Reliance on randominspections translates into spending the bulk ofthe time and energy on examining containersbelonging to the most frequent users ofcontainerized cargo, which are most likelyperfectly clean.

Examining 100 percent of all containers isnot only wasteful, but it violates an age-oldaxiom in the security field that if "you have tolook at everything, you will see nothing." Skilledinspectors look for anomalies and invest theirfinite time and attention on that which arousestheir concern. This is because they know thatcapable criminals and terrorists often try to blendinto the normal flow of commerce, but theyinvariably get some things wrong because theyare not real market actors. An aggressiveinspection regime that introduces substantialdelays and causes serious disruption to thecommercial environment can actually underminean enforcement officer's means to conductanomaly detection. Accordingly, allowing lowrisk cargo to move as efficiently as possiblethrough the intermodal transportation system hasthe salutary security effect of creating a morecoherent backdrop against which aberrantbehavior can be more readily identified.

Deciding which cargo container deservesfacilitated treatment, in turn, requires satisfyingtwo criteria. First, an inspector must have a basisfor believing that when the originator loaded thecontainer, it was filled only with legitimate andauthorized goods. Second, once the container ison the move through the global intermodaltransportation system, an inspector must beconfident that it has not been intercepted andcompromised. If the inspector cannot point to areliable basis for assuming these two criteria aresatisfied, in the face of a heightened terroristthreat alert, that person must assume that thecontainer poses a risk and target it forexamination.


In short, the effort should be to push for point-of-origin to point-of-destination security. That is,know what is being put in the box and secure it in away to be able to monitor it, and ensure thatnothing is added along the route. From a theft-prevention perspective, this system would also helpensure that nothing is removed while the box is intransit.

IV. Addressing the problem/meeting theimperative

In August 2001, a Law EnforcementCoordinating Committee intelligence sub-groupcomprised of local, state and provincial, and federalofficers and agents, principally from Ontario,Quebec, northern New England, and northern NewYork, gave support to the concept of aninteragency, intermodal, and international initiativefor cargo container security now called "OperationSafe Commerce–Northeast" (OSC-NE). Theworking group's aim was to develop a means toenhance cooperation and information sharingbetween the public and private sectors, and to tapthe power of off-the-shelf technologies to monitorand strengthen the integrity of cargo containersupply chains from their point-of-origin to theirpoint-of-delivery.

Well before 9/11, all the agencies involved withthis initiative were confronting increasinglysophisticated organized criminal operations in closeproximity to the border. These involved smugglingof humans and contraband, including drugs andstolen property. For more than a decade, the groupworked together and confronted such challenges asdrug shipments that arrived via cargo containers inthe Port of Montreal, and were then smuggled southinto the United States. They also worked tointercept the flow of stolen vehicles from thenortheast that were driven across the border to beshipped overseas from Canada by the same method.Additionally, there was a growing amount of theftof high-value goods from container shipmentswhile in and around the port. All this highlightedthe vulnerability of containers which could bebreached by nefarious elements on a regular basis.

In late August 2001, members of the LECCgroup led by James Leene of the Office of the U.S.Attorney for the District of Vermont, and RaymondGagnon, then the U.S. Marshal for the District ofNew Hampshire, offered to serve as a test bed for acomprehensive container security pilot project firstproposed by Stephen Flynn, who was then an activeduty Commander in the U.S. Coast Guard. Theevents of 9/11 sparked a real sense of urgency toforge ahead with this initiative. Everyone involvedrecognized that the same method used in traditionalsmuggling of contraband, whether drugs, cigarettes,

knock-off products, or other goods, could be usedto support terrorist activities with devastatingconsequences. They were deeply concerned thatthe United States was in a race to prevent theultimate nightmare scenario: that the componentparts of weapons of mass destruction (WMDs)might be smuggled into the country via a cargocontainer, then assembled, and set off on MainStreet, USA.

The purpose of OSC-NE was to identifywhere injection and removal points occurred in asimple cargo container supply chain, and to begintesting some possible technologies to detectintrusions and track the container for anomalies.Coming together in this effort were the topfederal agency representatives from theNortheast, including the U.S. Customs Service,U.S. Coast Guard, U.S. Immigration andNaturalization Service, U.S. Attorneys' Offices,and U.S. Marshals Service. They joined togetherto forge a unique partnership with the stateeconomic communities, particularly those of NewHampshire, and importantly, through the stateeconomic development arm, with members of theprivate sector.

Members of the working group began havingserious discussions with representatives ofagencies in Washington to secure federalsponsorship for a pilot phase of OSC-NE. Inconjunction with this effort, the Volpe NationalTransportation Systems Center of Cambridge,Massachusetts, prepared a white paper proposingto study a simple cargo container supply chain.The joint Department of Defense/Department ofState Technical Support Working Group agreedto fund the Volpe Center's initial effort, and theloose-knit affiliation that had come together topromote this project took on a more structuredexistence. The United States Attorneys for theDistricts of New Hampshire and Vermontappointed a joint law enforcement coordinatingcommittee subcommittee to be tri-chaired by eachof them and the Governor of New Hampshire.The rural and economic development arm of NewHampshire provided the necessary and criticallinkage to the private sector.

As articulated in its mission statement,Operation Safe Commerce represented acomprehensive coalition of federal agencies, stategovernments, and private sector businessescommitted to the concept of enhancing borderand international transportation security, withoutimpeding free trade and international commerce.As the working group reminded itself on aregular basis, it worked together "on a spit and ahandshake" basis. Agency egos were "checked atthe door." Its limited strategic goal was simple:


provide a demonstration model for the internationalcontainer shipping system that maintains openborders and facilitates commerce, while improvingsecurity practices by using point-of-origin security,in transit tracking and monitoring, and data querycapability, designed to validate and facilitate themovement of containerized cargo.

The LECC Working Group convened on a bi-weekly basis either by telephone conference or inface-to-face meetings. Their first priority was toassist Volpe in refining the parameters of theproposed demonstration project. Next they workedto anticipate and clear any potential bureaucratichurdles that may have slowed down the executionof the project. Finally, they provided an ongoingforum to review and analyze the Volpe reports andassist in the preparation of the final report.Throughout the process, the group's aim was toensure that the prototype would not be simply aflash in the pan. Their goal was to produce findingswhich could then be used to promulgate regulationsand set new security standards to govern theinternational transportation of cargo containers. Thehope was that this pioneering effort would providethe foundation for a comprehensive riskmanagement approach by striking the optimalbalance between facilitating the flow of commerceand protecting the nation from terrorists.

Phase One of the project was accomplished intwo parts, both of them involving cargo containersfrom a plant owned by Osram-Sylvania thatmanufactured automobile light bulbs in NoveZamke, Slovakia. Every two weeks, Osram-Sylvania loaded and shipped a full container of thelight bulbs via the Port of Hamburg, Germany, tothe Port of Montreal, then across the U.S.-Canadianborder at Highgate Springs, Vermont, where theywere received at an Osram-Sylvania plant inHillsboro, New Hampshire. In the first stage of thepilot, the Volpe Team studied the actual supplychain for a cargo container, to document the way inwhich the cargo container was handled, and thevarious potential problems for intrusion that couldoccur along the route. Second, Volpe putinstrumentation and monitoring devices on asecond container to determine whether it could betracked and monitored effectively withcommercially available technology.

The tested container was outfitted with aGlobal Positioning Satellite (GPS) device capableof tracking and recording the container'smovement. The Volpe technicians also installed aseries of light and magnetic sensors which coulddetect an intrusion into the container, much like ahome alarm system. If the sensors detected aproblem, they could transmit that information to anelectronic seal on the exterior door of the container.

The GPS tracking data and the intrusion datamonitored by the interior sensors weredownloaded to nodes at the outset of thecontainer's trip, at the seaport entryways inHamburg, Germany, and Montreal, at the borderport of entry at Highgate Springs, Vermont, andat the receiving company premises in Hillsboro,New Hampshire. This data was then transmittedto Volpe's headquarters in Cambridge,Massachusetts.

The pilot project highlighted a number ofpotential vulnerabilities that confirmed theanxieties of the working group members. As laterdiscussed in a March 20, 2003 hearing of the U.S.Senate Committee of Governmental Affairs, theloaded container left the manufacturing plant inSlovakia unsealed. The container was not sealeduntil it cleared Slovak customs. Also, thecontainer involved was held up at a bordercrossing in Europe for an extended number ofhours. The waiting truck traffic at that point wasdrawn up alongside a tent city that had the kindof age-old attractions likely to tempt a driver toleave his rig unattended, potentially leaving thecontainer susceptible to tampering.

Most distressing was that the containerpassed through five international jurisdictions andin and out of two seaports without any officialever inquiring about why the container wasoutfitted with such unusual, and potentiallyfrightening, equipment. This despite the fact thatthe container door was adorned with a six-inchGPS antenna temporarily held in position withmagnets, from which ran several foot-long blackwires via the electronic seal to the gasket on theright side of the container door. Nor did theyopen it up to find an automotive battery andsensor equipment bolted to the side of the internalcontainer wall. None of these agents had beenforewarned about the pilot, yet no official,including those at the U.S. border, ever raised aquestion. Since the container was judged to be aroutine and low-risk shipment, it is unlikely thatan inspector ever stepped around the back of it tospot this special equipment, even though it was inplain sight.

The OSC–NE, Phase I prototype highlighteda core reality of modern global logistics–even themost trusted shippers currently possess little to nocapacity to monitor what happens to their freightwhen it is in the hands of their transportationproviders. As long as it arrives within thecontracted time frame, they have had no incentiveto do so. The test runs informed the OSC-NEworking group, and the agencies represented bythe members of that group, that there is a solidand necessary basis for continuing to explore


both container tracking and container intrusiondetection.

The group, however, always saw itself as avehicle for providing data which could be used forsetting standards to ensure greater safety fromintrusion in the handling and transportation ofcargo containers to regulatory bodies within theUnited States, and through them to internationalentities. Indeed, in a proposed Phase Two, OSC-NEis partnering with Lawrence Livermore NationalLaboratory to test additional intrusion detectiondevices within the container, and monitoring anddetection equipment to be used in movingcontainers at the ports. How soon morecomprehensive technical solutions to containertracking and intrusion will be developed depends,of course, on further comprehensive study andmonitoring of more complex supply chains foradditional vulnerabilities that may be addressed bytechnology. In the meantime, Operation SafeCommerce grants to the ports of Los Angeles/LongBeach, Seattle/Tacoma, and New York/New Jerseyto study a number of additional supply chains wereannounced by Secretary of Homeland Security,Tom Ridge, in June 2003.

V. Other initiatives and their limitations

Shortly after 9/11, the U.S. Customs Service,now the Bureau of Customs and Border Protection(CBP), began an initiative called the Customs-Trade Partnership Against Terrorism (C-TPAT).The goal has been to encourage greater awarenessand self-policing among the private sectorparticipants most directly involved with shipping,receiving, and handling, containerized cargo. Sinceit was first announced in January 2002, thousandsof companies have joined the partnership.However, CBP has virtually no staffing resourcesto monitor the level of compliance among the C-TPAT participants. Until this lack of auditingcapacity is addressed, C-TPAT risks creating agreater degree of confidence in private-sectorefforts to tighten up security than the facts maywarrant.

CBP has also initiated the Container SecurityInitiative (CSI), which involves placing U.S.inspectors in foreign ports to support targeting andinspection efforts overseas before containers areloaded on a vessel destined for the United States.CSI represents a true paradigm shift by changingthe focus of inspection from the arrival port to theloading port. The potential result is to providegreater strategic depth in identifying andintercepting dangerous cargo, and to improvecooperation among our key trade partners inadvancing this vital agenda. As in C-TPAT, CBP isundertaking a daunting and vital task with few

additional resources. For instance, there are underten U.S. inspectors working alongside thirty-fiveHong Kong counterparts examining outboundcargo. Their challenge is superhuman since thePort of Hong Kong operates twenty-four hours aday, seven days each week, moving more than ahalf a million 40' containers each month.

Assigning U.S. inspectors overseas, andplaying host to foreign CSI participant inspectorshere at home, improves both the timing andquality of targeting which containers should beviewed as high risk and, therefore, subject toinspection. This is why CBP's new "twenty-four-hour rule," requiring manifest data to be in thehands of the inspectors a full day in advance ofcargo arrival, is so essential. CSI is meaninglessunless the risk assessment that it is intended tosupport can be accomplished by an inspector in aloading port. Thus, the data must arrive in timefor an inspector to analyze it and to follow up onany resulting questions. The "twenty-four-hourrule" alone is unable to correct the longstandingproblem of receiving data detailed and reliableenough to inspire real confidence in the capacityof targeting programs to detect anomalies.Indeed, cargo manifests have been notoriouslyunreliable documents. Accordingly, advance riskassessments must be built around more detailedcommercial data that ideally goes all the wayback to an original purchase order for animported good. Failing that, the targeting ofshipments, whether conducted at a U.S. port oroverseas, will not likely pass the publiccredibility test following any attack that mayinvolve a precleared shipment.

Current and future projects associated withthe Operation Safe Commerce initiative hold outreal promise of a comprehensive and credibleapproach to container security. It builds on C-TPAT and CSI but goes the next step by: (1)creating a greater understanding of the currentvulnerabilities within a variety of global supplychains; and (2) ensuring that new technologiesand business practices designed to enhancecontainer security are both commercially viableand successful. Nevertheless, OSC will be oflittle value if the endgame is not ultimately aboutarriving at common performance based standardsthat can be quickly developed and adequatelyenforced within the global transportation andlogistics community. At the end of the day, thestakeholders who undertake enhanced securitymeasures must not be at a competitivedisadvantage for taking steps to serve broaderpublic interests.

As noted above, there are now other supplychain studies in the works at the three largest


United States load centers: Los Angeles/LongBeach, Seattle/Tacoma, and New York/New Jersey.To date, however, the single Osram-Sylvaniashipment organized by the OSC-NE project in thespring of 2002 remains the only completeoperational study of supply chain security that hasproduced findings of this daunting challenge. Giventhe complexity of the intermodal containertransportation system, additional testing of actualsupply chains and technical modalities is clearlywarranted. The data from all of these sourcesshould be used to detect and analyze vulnerabilitiesnot yet identified, and to articulate best practices,standards, and regulations for the handling of cargocontainers that will decrease their vulnerability, andensure that they can move expeditiously throughthe cargo container transportation system.

VI. Implications for U.S. Attorneys' Offices

The membership of the OSC-NE workinggroup is built on an LECC model, but from theoutset it sought out participants beyond the U.S.law enforcement community. It recognized that theonly hope for success in advancing supply chainsecurity was to create a venue where a variety ofagencies, across multiple jurisdictions, could roll uptheir sleeves and work in close partnership with allthe relevant private stakeholders. This kind ofapproach needs to be replicated if we are to succeedat safeguarding many of the critical foundationsupon which the American way of life and quality oflife rests. U.S. Attorneys' Offices can play aninvaluable role in mustering the interagencycooperation and engagement with the private sectorand cross-border counterparts that is required toadvance homeland security.

With respect to the challenge of supply chainsecurity, if a U.S. Attorney's Office has not alreadydone so, it should assess the scope of the issue in itsown district. Know who is receiving containers andwho is moving them. Find out their origins andwhere they may have stopped along the way. Byasking questions that our fellow agencies andprivate partners have to answer, we help educatethem about the nature and scope of the problem,and the roles that each must play in achieving asolution.

Understand which agencies may havesignificant responsibility for regulating ormonitoring container freight in the district. If thereis a seaport by which containers first arrive, therewill be Port Security Committees and Coast Guardand Customs officers who will have initialresponsibility. Citizenship and Immigrationpersonnel may have an interest in the crews of theships delivering the containers. Whether or notthere is a port in the district, as the containers move

off the docks and into the stream of commerce,transportation agencies, railroad police, and stateand local police, may each have encounters withcontainers. Within the private sector, reach out toshippers and freight forwarders, shipping lines,rail lines, truck lines, and warehouse and terminaloperators. Each of these entities can bring itsexpertise to bear on the security issue.

Use the information gathered to assess thepotential problems and vulnerabilities posed bycargo containers in a district, to establish newcoalitions, and to enhance existing ones.Determine the training needs identified as a resultof these inquiries, and begin to meet them.Finally, as the U.S. Attorneys' Offices have doneso often recently, ensure that there are cross-district coalitions in place to address this issue.

At the end of the day, container security isabout constructing the means to sustain globaltrade in the context of the new post-9/11 securityenvironment. That the aim is global in scope doesnot mean that U.S. Attorneys' Offices, throughATAC's, LECC's, or other coordinated,multiagency efforts, are precluded from playing arole. To the contrary, working to achieveeffective coalitions to address seriousenforcement and security problems has beensomething these offices have done effectively forat least two decades. Now that same leadershipand coordination must include activeparticipation in formulating solutions to thispressing problem.�

ABOUT THE AUTHORS

�Stephen E. Flynn, Commander, U.S. CoastGuard (ret.), is a Jeane J. Kirkpatrick SeniorFellow in National Security Studies and Director,Council on Foreign Relations Independent TaskForce on Homeland Security Imperatives. Dr.Flynn served in the Coast Guard on active dutyfor twenty years, retiring at the rank ofCommander. He was a Guest Scholar in theForeign Policy Studies Program at the BrookingsInstitution from 1991-92, and in 1993-94 he wasan Annenberg Scholar-in-Residence at theUniversity of Pennsylvania.

Dr. Flynn ranks among the world's most widelycited experts on homeland security, bordercontrol, and trade and transportation securityissues. Harper Collins will be publishing hisbook, AMERICA THE VULNERABLE: THE

STRUGGLE TO SECURE OUR HOMELAND" in early2004. His recent works include America theVulnerable, in FOREIGN AFFAIRS (Jan/Feb 2002),The Unguarded Homeland in HOW DID THIS


HAPPEN? TERRORISM AND THE NEW WAR, PublicAffairs Books (Nov 2001); and Beyond BorderControl, FOREIGN AFFAIRS (Nov/Dec 2000). Since9/11 he has provided testimony on eight occasionson Capitol Hill and has testified before theCanadian House of Commons. He has appeared asa guest commentator on Nightline, the Charlie RoseShow, 60 Minutes, The Today Show, Good MorningAmerica, and NPR's All Things Considered andMorning Edition. He is the founder of aninnovative private-public partnership to advanceglobal container security involving the America'slargest ports known as "Operation Safe Commerce"and serves as the principal advisor to the bipartisanCongressional Port Security Caucus.

Peter W . Hall is a United States Attorney for theDistrict of Vermont. He was an AssistantUnited States Attorney for the District of Vermontfrom 1978 to 1986, and from 1982 to 1986 servedas the First Assistant United States Attorney forthat District. From 1986 to 2001, he practiced lawin the private sector in Rutland, Vermont.

Since being sworn in as United States Attorney onOctober 5, 2001, Mr. Hall has been a member ofthe Attorney General=s Advisory Sub-Committeeon Border and Immigration Issues, a US co-chair ofthe Prosecutors= Working Group of the US/CanadaCross-Border Crime Forum, and co-chair, withNew Hampshire=s United States Attorney, of a jointNew Hampshire–Vermont multi-agency workinggroup for Operation Safe Commerce, focused oninternational cargo container security. Mr. Hall alsoserves as a member of the multi-agency ExecutiveSteering Committee for Operation Safe Commercethat meets monthly in Washington, D.C. In March2003, Mr. Hall provided testimony before Congresson the project undertaken by the Operations SafeCommerce–Northeast working group. a


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