author: ARCENEAUX, District Judge.

text:
    ITT INDUSTRIAL CREDIT COMPANY v. The M/V RICHARD C, et al.
    No. 83-655.
    United States District Court, E.D. Louisiana.
    Sept. 13, 1985.

      Adams & Reese, John M. Duck, Liskow & Lewis, William W. Pugh, Charles M. Steen, New Orleans, La., for Smatco, Inc.
    A.J. Schmitt Jr., Schmitt & Mathes, New Orleans, La., David J. Balduf, Biloxi, Miss., for Kennedy Engine Co. Inc.
    Jackson & Stovall, James E. Stovall, New Orleans, La., for Lombas Industries, Inc.
   OPINION

ARCENEAUX, District Judge.

Plaintiff, ITT Industrial Credit Company (“ITT”), instituted this suit in admiralty to foreclose on an alleged Preferred Ship Mortgage on the M/V RICHARD C, which mortgage allegedly secures the payment and performance of a promissory note in the original principal amount of $900,-000. 00, executed by defendant Leonard J. Camaille (“Camaille”) and guaranteed by defendant Gulf Outlet Marine Services, Inc., (“GOMS”). The in rem defendant, the M/V RICHARD C, was seized on February 12, 1983. Kennedy Engine Company, Inc. (“Kennedy”) and Smatco, Inc. (“Smatco”) subsequently intervened and have claimed maritime liens for the sale and delivery of a winch and engine package to the vessel. Lombas Industries, Inc. (“Lombas”) has intervened and claimed a maritime lien for charter hire advances paid for the future use of the vessel, which use was denied due to the vessel’s seizure in this matter; Lombas also had claimed in custodia legis expenses for wharfage for the vessel after her seizure.

Defendants Camaille and GOMS subsequently filed petitions in bankruptcy, and all in personam proceedings against them were stayed. However, the stay was lifted as it pertains to the litigation foreclosing on the M/V RICHARD C. A trial before the Court without a jury was held on January 21 and 23, 1985, and the matter was taken under submission. Having considered the evidence adduced at trial, the memoranda of counsel and the law, the Court now issues its opinion.

BACKGROUND

The factual background relevant to issues presented in this lawsuit is largely undisputed. The M/V RICHARD C was constructed in Slidell, Louisiana by GOMS, a corporation solely owned by Camaille, who also served as its president. Construction began in 1980, and GOMS was the owner of the vessel under construction, designated as “Hull No. 6,” until some time in 1982. Interim financing for the construction was arranged through Jefferson Bank & Trust (“JBT”) by GOMS. (Exh. P-15 to P-16).

GOMS contracted with Kennedy for the sale of an engine and generator package, which was delivered to the GOMS shipyard between February 1, 1982, and October 27, 1982, and installed onto the M/V RICHARD C by GOMS at some undetermined time during that period (Exh. K-l to K-17; PTO p. 15). The Smatco winch bought by GOMS was delivered to the shipyard on June 23, 1982, and installed onto the M/V RICHARD C by GOMS at some time between June 23, 1982, and August 11, 1982. (Exh. S-l to S — 7; PTO p. 14-15).

On December 2, 1982, Lombas entered into a contract with Camaille for the bare-boat charter of the M/V RICHARD C. (Exh. ITT-45). The vessel was moved from the GOMS shipyard in Slidell, Louisiana to the Lombas dock in Larose, Louisiana on December 17,1982. (Dep. Puglisi and Bonham, p. 82). The vessel remained at the Larose facility following her seizure on February 12, 1983, to July 26, 1983, when a consent keeper was appointed and she was moved to another location. (Exh. ITT-49 to ITT-50; Exh. 1^4 to Lr-7).

As it relates to the ITT note and mortgage, it is undisputed that Camaille swore out a Master Carpenter’s Certificate with the United States Coast Guard (“Coast Guard”) on June 14, 1982, indicating that he was the Master Carpenter of the vessel and that the M/V RICHARD C was built for him. (Exh. ITT-13). It is likewise stipulated that on September 15, 1982, Camaille signed mortgage papers prepared by ITT’s attorneys which included a written representation that Camaille was the sole owner of the M/V RICHARD C, and that the vessel was free and clear of all liens and encumbrances. That mortgage was recorded and documented with the Coast Guard on the same day. (Exh. ITT-1 to ITT-7; ITT-14). A corporate resolution authorizing the GOMS guarantee of the note was also drafted by ITT’s attorneys and executed on that date. (Exh. ITT-8 to ITT-9).

The factual dispute presented is basic, for although intervenors have also advanced individualized theories seeking respective priming ranks for their liens, they principally attack the very validity of the ITT mortgage. Ownership of the vessel at relevant times, including when the mortgage and note were executed, is at the focus of the dispute, and “vessel” status at pertinent times is also at issue. Although further complicated by evidentiary deficiency, the root of all dispute is directly traceable to the parties’ misplaced reliance on the word and reputation of defendant Camaille, which has seriously distorted what would otherwise have been routine collection postures.

THE MAN

Prior to the trial in this matter, Camaille pleaded guilty to conspiracy to make false material statements to two federally insured banks for the purpose of influencing loan decisions, and was sentenced to a 15 month prison term. His wife, Rita Samrow Camaille, was also indicted, but pleaded guilty to a bill of information charging her with relieving, receiving, comforting and assisting Camaille in order to hinder and prevent his apprehension; she received a suspended 12 month sentence. The scheme in which the two were charged involved $1,200,000.00 worth of loans sought and made between March 1, 1982, and September 30, 1983, on a non-existent vessel. United States v. Camaille, et al, No. 84-179 “H” (E.D.La.).

Camaille’s testimony demeanor at trial was relaxed; he openly admitted signing whatever papers were required in order to obtain the ITT loan without regard to their truth. He openly admitted that he felt that GOMS and himself were one and the same, that, as a result, he felt he owned the vessel through GOMS, from the beginning, and that no written act of sale was passed nor was a corporate resolution adopted authorizing a transfer of ownership of the M/V RICHARD C from GOMS to himself. At trial, he testified (as both parties to the sale) that he felt the sale occurred on September 20, 1982, when the interim financing on the hull was paid, and some five days after the ITT note and mortgage were executed. His testimony, the only testimony on the issue of ownership, indicates he did not own the M/V RICHARD C on September 15, 1982, despite his written representations to the contrary. This Court is called upon to determine the serious ramifications of this testimony when applied to the law.

OWNERSHIP

ITT’s only witness at trial, George Werner, dealt with Camaille in setting up the loan. (Exh. S-9). He stated that he knew that Camaille treated GOMS and himself as one and the same. When he met with Camaille in August, 1982, he knew the M/V RICHARD C belonged to GOMS, and did not make inquiry into how or when the vessel was to be sold to Camaille individually. Werner understood that Camaille’s purpose in obtaining the loan was to purchase the M/V RICHARD C at some future date; Werner knew that Camaille had purchased other vessels from the company in the past. Werner relied solely on what Camaille told him about his intent to transfer, and recognized that the sale itself should be accomplished before the financing was completed. Werner did not testify as to the alleged sale itself; his testimony is only relevant to a possible agreement to buy and sell.

While the evidence reflects inconsistency and confusion regarding ownership at any given time, it also shows that ITT had knowledge of other documents dated just prior to the execution of the ITT mortgage and note, which indicated that GOMS owned the M/V RICHARD C, contrary to any representation set forth in the June 14, 1982, Master Carpenter’s Certificate. ITT’s Commitment Letter, dated September 8, 1982, reflected the ownership of GOMS, as did the Condition and Valuation Survey performed at the request of GOMS, dated August 12, 1982. (Exh. ITT-10, ITT-12). In addition, the the JBT collateral ship mortgage and note, dated August 31, 1982, reflected the ownership of GOMS. (Exh. ITT-15). The Declaration of Officer of Incorporated Company, executed simultaneously with the mortgage and note on September 15, 1982, identified the M/V RICHARD C with perhaps an over-stated but revealing reference to the “Master Carpenter’s Certificate of Leonard J. Camaille, of Gulf Outlet Marine Services, Inc., dated June 14, 1982.” (Exh. ITT-2) (Emphasis added).

In sum, ITT went to the closing on September 15, 1982, with the specific knowledge that Camaille openly ignored any formal distinction between GOMS and himself, and that the sale of the M/V RICHARD C should occur prior to the completion of the ITT financing. However, the only proof required by ITT of a change in ownership status, and of a sale between GOMS and its sole owner, (other than the June 14, 1982, Master Carpenter’s Certificate) was a written representation contained in the mortgage prepared by ITT’s attorneys. (Exh. ITT-2). The Affidavit as to Good Faith does not specify that Camaille owned the M/V Richard C, but that the mortgage was made in good faith and without any design to hinder, delay or defraud existing or future creditors or lienors. (Exh. ITT-2). According to the testimony of both Werner and Camaille, no verbal inquiry or verbal representation that Camaille owned the vessel was made at the September 15, 1982, closing.

While the issue of ownership does not affect the viability of the promissory note, or the existence of the debt owed by Camaille and guaranteed by GOMS, it does affect the right of ITT to proceed against the vessel as security for the debt, under 46 U.S.C. § 911 et seq. Preferred status under 46 U.S.C. § 953 requires that the mortgage first be a valid one. Chemical Bank New York Trust Co. v. Steamship Westhampton, 358 F.2d 574 (4th Cir.1965), cert. denied 385 U.S. 921, 87 S.Ct. 228, 17 L.Ed.2d 145 (1966). Merely following the correct recording procedures set forth in the statute do not convert an invalid mortgage into a valid preferred ship mortgage. Bergren v. Davis, 287 F.Supp. 52 (D.Conn. 1968). It is further obvious that a mortgage cannot attach to property not owned by the mortgagor; indeed, no such argument is being made in this matter.

The ownership of a vessel is not dependent on its registration. Southern Bell Telephone & Telegraph Co. v. Burke, 62 F.2d 1015 (5th Cir.1933). A Certificate of Documentation is not conclusive evidence of ownership in a proceeding in which ownership is in issue. 46 U.S.C. § 12104 (formerly 46 U.S.C. § 65(g)). Rather, the question of ownership of a vessel is governed by state law; where that ownership is derived by virtue of a sale, the requirements for a contract of sale are likewise determined under state law. St. Paul Fire & Marine Insurance Co. v. Vest Transportation Co., Inc., 666 F.2d 932 (5th Cir.1982); S.C. Loveland, Inc. v. East West Towing, Inc., 608 F.2d 160 (5th Cir.1979), cert. denied 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980).

ITT bears the burden of establishing Camaille’s ownership of the M/V RICHARD C as part of its burden in establishing preferred status. A party alleging the existence, nullity, modification or extinction of an obligation must prove his allegation by a preponderance of the evidence under Louisiana law. La.Civ.Code art. 1831 (formerly La.Civ.Code art. 2232). A sale in Louisiana is considered perfect between the parties when there exists consent as to the object and the price. La.Civ. Code arts. 2439, 2456. However, an agreement to buy and sell, where the parties are looking forward to a sale, is not a sale as it does not transfer ownership. La.Civ.Code art. 2462; First Federal Savings & Loan Assn. of Alexandria v. Botello, 725 F.2d 350 (5th Cir.1984); Hillhaven v. Schweiker, 570 F.Supp. 248 (M.D.La.1983).

Louisiana corporations are intellectual beings different and distinct from the persons who comprise them; corporate property does not belong to those persons. La. Civ.Code arts. 435, 436. Moreover, to all contracts there must be at least two persons; a person cannot contract with himself. La.Civ.Code art. 1906 (formerly La. Civ.Code art. 1765).

Under Louisiana law, a contract of sale for a movable can be either written or verbal. La.Civ.Code art. 2441. While the parties emphasize the lack of a written act of sale in the matter sub judice, no evidence of a verbal sale exists. Camaille represented ownership in the M/V RICHARD C in both the corporation and himself interchangeably and sporadically, but at no time did the alleged sale manifest itself in either written or verbal form. Camaille did not buy the vessel, he merely “claimed” ownership whenever convenient.

Moreover, the existence of a verbal sale has not been sufficiently proven. Under Louisiana law, where the value of the movable exceeds $500.00, proof of a verbal contract of sale must be made by testimony of one witness and other corroborating circumstances. La.Civ.Code art. 1846 (formerly La.Civ.Code art. 2277). The testimony of Camaille in this regard cannot be given credit by the Court in light of his history of inconsistent statements relative to ownership, his refusal to distinguish between the corporation and himself, and his confessed ability to defraud banks in highly creative and deceptive manners, using a highly developed understanding of the origin of documents relied upon by lenders which are not otherwise verified. Therefore, at best, the credible evidence suggest that a non-written, non-verbal agreement to buy and sell involving parties which considered themselves one, may have existed at some time prior to the execution of the mortgage and note; it does not approach proving a sale of the vessel at any time. This conclusion is further supported by circumstances surrounding the alleged down payment on the M/V RICHARD C, since credit for monies owed to Camaille by GOMS was specifically forbidden under the ITT mortgage.

Argument regarding after-acquired property under La.Civ.Code art. 3304 or otherwise must necessarily fail not only because no sale has been proven, but also because the applicable federal regulation states that a ship mortgage is not eligible for indexing and endorsement as a preferred mortgage if the mortgagor did not hold legal title to the subject vessel at the time of the execution and recordation of the mortgage. 46 C.F.R. 67.37-5(c). In short, ITT is unable to prove a security interest in the M/V RICHARD C at any time due to the lack of proof of a sale, and is additionally unable to prove preferred status since proof of a sale at the time of the execution and recordation is lacking.

ITT has virtually ignored the problem of ownership in its memoranda and in the evidence adduced at trial. ITT does not allege fraud, despite its pervasiveness, nor does it urge the Court to pierce a corporate veil, which may not be warranted by the facts. Of course, the effect of such actions, if alleged and proven, would not establish a security interest in the vessel. Moreover, where the mortgage is found to be invalid, issues concerning its fraudulence, which govern its priority, do not arise. Likewise, while it is clear that the law imposes no duty on lenders to inquire as to the existence of prior liens in accepting the Affidavit of Good Faith, the actuality of ownership is not so protected. Ownership is not relevant to the priority to be given a valid mortgage, but relates to the very validity of the security interest itself. C.l.T. Corp. v. Oil Screw Peggy, 424 F.2d 767 (5th Cir.1970); Pascagoula Dock Station v. Merchants & Marine Bank, 271 F.2d 53 (5th Cir.1959). Any equitable relief which has been or could be sought by ITT is not justified by the circumstances recited herein; further, the Court is unaware of any equitable relief which could effect a transfer of property, where proof of a sale is lacking.

The Court notes that it has been presented with no proof that Camaille had authority to sell for the corporation by reason of corporate resolution, by-laws or otherwise. As a mere agent, express and special power to sell is required. La.Civ.Code arts. 438, 439, 2996, 2997.

While there is no doubt in this Court’s mind that Camaille could have acted in both a corporate and individual capacity to effect a sale had he been presented with appropriate papers at the closing, and that ITT could have “forced” the sale in writing, as it had “forced” the resolution for the corporate guarantee, due to Camaille’s willingness to sign whatever papers ITT required, ITT chose instead to rely on the word and good faith of a man who has since proven untrustworthy, if not criminal. Further, ITT, which was represented by counsel, knew or should have known that the sale and ownership in Camaille had not been legally established and was suspect by virtue of the conflicting statements as to ownership of the vessel prior to closing. Had the ownership not been challenged in this litigation, routine foreclosure on the vessel would probably have occurred; nonetheless, ITT has created its present inability to prove the sale and ownership. ITT can look to Camaille and the corporate guarantor for repayment; ITT cannot, however, look specifically to the M/V RICHARD C which, because no sale has been proven, remains the property of GOMS.

In short, Camaille’s ownership of the M/V RICHARD C could only result from a sale of the vessel by GOMS. Where the alleged sale was not manifested in any verbal or written manner, but only, if at all, within the mind of a single person in an inconsistent manner and with total disregard for legal formalities, it is not recognized by law. Although sophisticated businessmen, with the benefit of experienced counsel at one time, may have acknowledged and accepted these circumstances, in so doing, they do not create a security interest in property which they cannot prove to be owned by the mortgagor.

MARITIME LIENS

Having found that no preferred ship mortgage is being held by ITT, which claims no other basis for a maritime lien, the Court must now evaluate the character of the remaining claims in this suit. The Court’s in rem admiralty jurisdiction is necessarily dependent on the existence of a maritime lien. Jackson v. Inland Oil & Transportation Co., 318 F.2d 802 (5th Cir. 1963); 2 Benedict on Admiralty, § 21 (6th Ed.1984).

Kennedy claims to have a maritime lien on all of the materials, parts, engines, generators and services it supplied to the M/V RICHARD C through the time of sea trial runs on October 19, 1982. At the same time, Kennedy argues, apparently against itself, that the M/V RICHARD C did not become a vessel until it had been completed at some time after her sea trial, and that a maritime lien under 46 U.S.C. § 971 lies in favor of Kennedy as to some unspecified supplies and services provided to the M/V RICHARD C after she was fully constructed.

While the Court is not convinced that Kennedy’s maritime claim is being seriously forwarded, it is initially clear that it lacks evidentiary support. The Court has not been given proof by any party that is adequate to legally establish a date for either the launching or the completion of the M/V RICHARD C. In any event, Kennedy is without an in rem remedy where its engine and generator package so clearly constituted an integral part of the original construction of the vessel. 1 Benedict on Admiralty § 188 (6th Ed.1985); Walter v. Marine Office of America, 537 F.2d 89 (5th Cir.1976).

Smatco’s attempt at maritime lien status also fails; if an effort were made to prove that the winch sold to the M/V RICHARD C was a “necessary” under 46 U.S.C. § 971 or subject to a “preferred maritime lien” were made to prove that the winch sold to the M/V RICHARD C was a “necessary” under 46 U.S.C. § 971 or subject to a “preferred maritime lien” under 46 U.S.C. § 953, the effort has proven unsuccessful. The argument that the winch was not part of the original construction of the vessel is not only undermined by the fact that the vessel has been shown to belong to the original owner and builder, GOMS, but is further defeated by the evidentiary deficiency relative to establishment of a launching and/or completion date for- the M/V RICHARD C. Moreover, the inconclusive evidence relied upon by Smatco indicates that the sale under La.Civ.Code Art. 2456 occurred prior to the issuance of certificates allegedly indicating completion.

Finally, Lombas’ effort to invoke this Court’s in rem jurisdiction also fails. Initially, this Court doubts that a “charter party” with a non-vessel owner is a maritime contract or can effectively bestow any rights relative to that agreement in admiralty. While it would appear that any alleged “prohibition of liens” clause would not bind Lombas under the factual circumstances presented, Lombas’ arguments of maritime contract and maritime tort under 46 U.S.C. § 953 necessarily fail, and are not supported by the facts. International Marine Towing Inc. v. Southern Leasing Partners, Ltd., 722 F.2d 126 (5th Cir.1983). cert. den. — U.S. -, 105 S.Ct. 94, 83 L.Ed.2d 40 (1984). Similarly, no support for the suggestion that Lombas’ claim involves a “necessary” under 46 U.S.C. § 971 has been forwarded.

In addition, the “doctrine of advances” offers Lombas no assistance. The doctrine provides that one who advances funds for the payment of lienable claims is himself entitled to a lien if the advance was made on the credit of the vessel and if the money advanced in fact was used to discharge the claims. Inland Credit Corp. v. M/T BOW EGRET, 552 F.2d 1148 (5th Cir.1977); 2 Benedict on Admiralty, § 33 (6th Ed.1984). However, ITT has no maritime lien or valid mortgage on the M/V RICHARD C for Lombas to acquire by subrogation. It has further been held that payments due on preferred ship mortgages are not entitled to any presumption that credit is given on the credit of the ship, Brock v. S/S SOUTHHAMPTON, 231 F.Supp. 278 (D.Ore 1964), and that charterers cannot have liens by paying for items for which they are primarily responsible under the terms of the charter. Caribbean Maritime Finance Co., Ltd. v. Marina Mercante Nicaraguense, S.A., 470 F.2d 277 (5th Cir.1972); Schilling v. A/S D/S DANNENBROG, 320 F.2d 628 (2d Cir. 1963). Moreover, it is clear that under facts of this case, the doctrine of advances is unavailable to Lombas where there is no proof offered that the payments were made in reliance on the credit of the vessel, and where the funds were not earmarked or restricted by Lombas for payment of a lien, but actually made payable to GOMS and not Camaille, the alleged mortgagor and owner under the charter party, or Gulf Outlet Management Corporation on behalf of Camaille, as specified in the charter party. (Exh. ITT-45; L-2).

EQUITABLE LIENS AND JURISDICTION

The Court is reminded that this matter in its present posture is an in rem action; all in personam claims have been stayed and severed. Accordingly, the arguments advanced by Kennedy and Smatco regarding dissolution of the respective sales is unavailing at this stage of litigation. Assuming that the admiralty law recognizes such a remedy, and that the principle of accession does not apply, the sales were made to GOMS, which is not before the Court in personam due to the bankruptcy proceedings.

In addition, the Court does not believe that Lombas has proven that ITT “forebeared” in its collection endeavors in order to receive the Lombas payment prior to seizure of the vessel. However, such a finding would not in itself support an in rem action; at best, Lombas would be entitled to recover for ITT’s unjust enrichment in equity.

While the Court does believe that Lombas is entitled to recovery for reasonable in custodia legis expenses for wharfage after seizure of the M/V RICHARD C, it would appear that such relief is not sufficient in itself to support an in rem sale and seizure of a vessel. Despite the fact that they are paid first in priority from the proceeds of a vessel sale, in custodia legis expenses do not constitute a maritime lien. Rather, they are an equitable lien arising by virtue of equity and good conscience denial of unjust enrichment. New York Dock Co. v. The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955 (1927).

Finally, ITT is claiming in custodia legis expenses in the total stipulated amount of $65,347.13, composed of $34,347.13 in Port-Risk Insurance Premiums and $31,000.00 in United States Marshal’s advance costs for seizure. (PTO p. 14). These are the only such expenses being claimed by ITT that appear in the pleadings and are specifically supported by stipulation of counsel or by the evidence presented at trial. No party has made issue of the recoverability of these expenses by ITT.

However, the Court concludes that because not one claim in this action constitutes a maritime lien, it is without jurisdiction in rem. Without such an initial invocation of admiralty jurisdiction, equitable action against the vessel is unavailable.

CONCLUSION

In any event, the Court declines to exercise jurisdiction over the permissive state law claims in this matter. The Court has been advised that many creditors have filed claims in the GOMS bankruptcy proceedings. Since in rem jurisdiction was erroneously invoked by ITT and the intervening claimants herein, and due to the earlier confusion surrounding ownership of the M/V RICHARD C, there may well be bankruptcy creditors who resisted filing claims in this Court due to a lack of maritime status, yet may have state law liens which prime those being claimed by Kennedy Engine and Smatco. For this reason, adjudication and ranking of all state law liens with regard to the M/V RICHARD C shall be made by the bankruptcy judge presiding over the GOMS proceedings.

Accordingly,

IT IS ORDERED that judgment be entered against plaintiff and intervenors, each party to bear its own costs.

IT IS FURTHER ORDERED that the M/V RICHARD C be and hereby is transferred to the custody of the United States Bankruptcy Court for the Eastern District of Louisiana as an asset in the Gulf Outlet Marine Services, Inc. proceedings, No. 83-01204. Lombas Industries, Inc. shall be paid the amount of $15,900.00, and ITT Industrial Credit Co. the amount of $65,-347.13, for in custodia legis expenses first in priority from the proceeds of any sale of the M/V RICHARD C made to satisfy state liens in the bankruptcy court.

      . Although vessel status is in issue, the Court will refer to the vessel in its various stages of completion as the M/V RICHARD C.

      . The Court notes, however, that the requirement that sale of vessels under the Ship Mortgage Act be reduced to writing could be inferred from the explicit statutory requirement that such bills of sale and conveyances be recorded. 46 U.S.C. § 921, § 926. Further, the Court could not find a single reported case under the Ship Mortgage Act where a written act of sale was not executed.

      . Camaille’s testimony that title changed from GOMS to Camaille on September 20, 1982, when the JBT construction mortgage was paid out, lends no support to an ownership interest which had to be in existence some five days earlier. It does, however, seriously affect the declaration in the Master Carpenter’s Certificate of June 14, 1982.

      . Although not offered as proof on this point, the Court notes that the JBT mortgage paperwork did include a corporate resolution that does not, however, empower Camaille to sell the vessel. (Exh. ITT-16).

      . The evidence presented to the Court, in addition to being qualitatively and quantitatively deficient and inconsistent, was somewhat inadvertantly presented by the parties. While the Court might be willing to assume that the M/V RICHARD C was both launched and completed when she was moved to the Lombas dock in December, 1982, this finding would not aid any maritime claimant, including ITT, which is involved in this suit. In addition, as it relates to ITT only, preferred status would be available to its alleged mortgage only upon a showing that at the time it was made, the mortgage included the "whole" of the vessel. 46 U.S.C. § 922(a).

      . It is nonetheless clear that Kennedy has failed to offer any credible proof that the engine and generator package could be easily removed without damage to the vessel.

      . The Court understands Lombas’ in custodia legis claim to be composed of per diem wharf-age fees only. Lombas’ evidence that these expenses totalled $15,900.00 was essentially uncontroverted at trial.

      . Although the Court is aware that a consent keeper has been employed, no claim for these fees or expenses, if any, has been made. In addition, no proof relative to the recoverability or the amount of these fees was presented at trial.


source: Caselaw Access Project

author: NESBITT, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. ONE LEAR JET AIRCRAFT, SERIAL NO. 35A-280, REGISTRATION NO. YN-BVO, Defendant.
    No. 81-6031-Civ.
    United States District Court, S.D. Florida, S.D.
    Sept. 12, 1985.

      Jonathoan Goodman, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Ira Kurzban, Kurzban, Kurzban & Weinger, P.A., Miami, Fla., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

NESBITT, District Judge.

THIS ACTION was tried before the Court. Upon the testimony and the evidence presented, the Court, pursuant to Rule 52(a), Fed.R.Civ.P., enters the following findings of fact and conclusions of law. In making these findings, the Court has considered letters rogatory, depositions, and documents introduced as well as the testimony at trial, and relies only upon those portions of the evidence that are relevant and material and presented by witnesses competent to testify. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1345 and 1355.

FINDINGS OF FACT

This case involves a forfeiture action by the United States against One Lear Jet Aircraft, Serial No. 35A-280, Registration No. YN-BVO (Lear jet). The Claimant, Leybda Corporation (Leybda), has asserted ownership of the aircraft and challenges the validity of this forfeiture action. The Amended Complaint contains five counts. Count II was dismissed by Order of Court prior to the time of trial. During trial, the Government dismissed Count III. The case is now before the Court as to Counts I, IV and V. Count I of the Complaint alleges the 1980 version of 8 U.S.C. § 1324 as a basis for forfeiture. This statute provided in pertinent part as follows:

(a) any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
(1) brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise;
any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs; provided, however, that for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.
(b)(1) any vessel, vehicle or aircraft which is used in the commission of a violation of subsection (a) shall be subject to seizure and forfeiture, except when—
(A) the owner, master or other person in charge of such vessel, vehicle or aircraft, was not, at the time of the alleged illegal act, a consenting party or privy thereto.

Counts IV and V assert that forfeiture is also appropriate under 22 U.S.C. § 401(a) (1979) which provides as follows:

(a) Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law, the Secretary of the Treasury, or any person duly authorized for the purpose by the President, may seize and detain such arms or munitions of war or other articles and may seize and detain any vessel, vehicle, or aircraft containing the same or which has been or is being used in exporting or attempting to export such arms or munitions of war or other articles. All arms or munitions of war and other articles, vessels, vehicles, and aircraft seized pursuant to this subsection shall be forfeited.

Specifically, the United States alleges that the crewmembers of the Lear jet, with knowledge by Leybda, made material misrepresentations in their visa applications, thereby entering the United States in violation of 8 U.S.C. § 1324 and subjecting the Lear jet to forfeiture. Furthermore, the Government contends that the Lear jet was exported in violation of the export regulations located at 15 C.F.R. § 385.1 and 15 C.F.R. § 387.4.

The facts, as adduced at trial, indicate that on September 1, 1980, the Lear jet aircraft landed at Miami International Airport. At that time, the pilot, Simeon Delfín Espinosa (Espinosa), and two crewmembers, Jorge Hermengildo Toledo Infante (Toledo) and Luis Leonardo Herrera Altuna (Herrera), each presented Nicaraguan passports issued in their names to the United States Customs Inspectors. Each passport contained non-immigrant B-l and D-l visas issued by the United States Embassy in Managua. The visa applications were submitted to United States authorities in Managua, Nicaragua, in April, 1980.

Upon arrival in the United States, all three crewmembers completed INS form 1-94. 1-94 forms, given to non-immigrant aliens to complete upon arrival in the United States, require that among other things, a non-immigrant alien provide his United States address. In the instant case, each crewmember claimed that he was a citizen of Nicaragua and that he had boarded in Managua, Nicaragua. Furthermore, each listed Cuba as their place of birth and provided their Nicaraguan passport numbers.

On September 2, 1980 the jet was flown to Fort Lauderdale-Hollywood International Airport for repairs. On September 5, 1980, agents of the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS) observed Espinosa, Toledo, Herrera and a fourth man, later identified as Oscar Vasquez, preparing the aircraft for departure from Fort Lauderdale airport. The agents interviewed the three crewmembers and briefly spoke to Vasquez. FBI Special Agent Duran testified at trial that Espinosa stated that he arrived in Miami on September 1, 1980 in order to repair the Lear jet and flew it to Fort Lauderdale on September 2 for the same reason.

During the September 5, 1980 airport interview, Espinosa presented a pilot’s license issued to him by the Nicaraguan government. He further stated that the Lear jet was owned by a Panamanian company with which Oscar Vasquez was affiliated. Espinosa denied applying for a visa in Havana to pilot Cubana Airlines charter flights to the United States. Both Toledo and Herrera also denied applying for a visa in Havana in 1979 and 1980 as Cubana Airlines crewmembers. The three crew-members were arrested and charged with violating United States immigration laws and the Lear jet was seized.

In prior criminal procedures, each of the crewmembers was indicted on various counts of visa fraud in violation of 18 U.S.C. § 1546. Each crewmember ultimately changed his plea and pled guilty to one immigration violation, under 18 U.S.C. § 1546, of knowingly possessing a visa application which contained false representations. A United States Immigration Judge determined that Espinosa, Toledo and Herrera were admitted to the United States by presenting a visa obtained by filing a visa application misrepresenting material facts.

At trial, the Government introduced evidence of false or inconsistent statements made by each of the crewmembers in different visa applications and other government forms in support of its claim for forfeiture under Count I of the amended complaint. The discrepancies existing among the various visa applications are numerous. Several of the discrepancies are the result of misrepresentations made on the visa applications submitted in Managua on April 9, 1980 and resulted in the crewmembers admission to the United States in September of 1980. By way of illustration rather than limitation the Court finds that the following misrepresentations and discrepancies exist as to each of the crewmembers.

Espinosa. On June 26, 1979 Espinosa filed a visa application at the United States Interests Section in Havana, Cuba. In this application Espinosa stated that he was a Cuban citizen employed by Cubana de Aviación — the Cuban state government airline. In addition, he stated that he had resided in Cuba during the previous 34 years — his entire life. Espinosa, in a visa application submitted in Nicaragua on April 9, 1980, represented that he was a Nicaraguan national. In his visa application filed in Havana in June 1979, however, Espinosa represented himself as a Cuban national. His February 15, 1980 application for a Panamanian pilot’s license, however, represents his nationality as Cuban. In his visa application filed in Managua, Espinosa denied ever making a prior visa application. This statement is in direct conflict with the fact that he submitted a visa application to the United States Interests Section in Havana. In his April 1980 visa application filed in Nicaragua, Espinosa represented himself as an employee of the Nicaraguan Department of Transportation. In contrast, his prior visa application represented that he was a crewmember of Cubana Airlines. When submitting the visa application to the United States Embassy in Managua, Espinosa represented that he had lived in Managua during the prior ten years. His visa application filed in Cuba the year before claimed that he had resided in Cuba during the previous 34 years. Furthermore, the visa application that Espinosa filed in Managua expressly asked him to indicate all countries he had lived in for more than six months during the past five years. Espinosa wrote Nicaragua, failing to indicate Cuba. The photograph and signature on each application appear to be of the same person.

Toledo. Toledo submitted two visa applications to the United States Interests Section in Havana. In the first application submitted on July 9, 1979, Toledo represented himself as a Cuban national who resided in Havana. In the second application filed on January 15, 1980, Toledo listed himself as a Cuban national residing in Havana. Toledo’s April 9 application stated that he was a Nicaraguan national. However, in a visa application filed with the United States Interests Section in Havana on January 15, 1980, he represented that he was a Cuban national. Furthermore, Toledo’s February 15, 1980 application for a Panamanian pilot’s license stated that he was a Cuban national. In his visa application filed in Managua, Toledo denied ever making a prior visa application. As demonstrated by the Havana Interests Section visa applications introduced during trial, it is clear that Toledo had made two prior applications. In his April 1980 visa application filed in Managua, Toledo represented himself as an employee of the Nicaraguan Department of Transportation. In his January 1980 visa application filed in Havana, however, Toledo identified himself as a crewmember of Cubana Airlines. In the visa application filed in Managua, Toledo represented that he had resided in Nicaragua during the prior ten years. In contrast, the application he filed a few months earlier in Havana lists a Cuban address as his domicile. The photographs and signatures in the applications appear to be of the same person.

Herrera. Herrera also submitted two visa applications to the Interests Section in Havana. In the first, Herrera represented himself to be a Cuban national. In his second application, made on June 22, 1979, Herrera stated that he had lived in Cuba for 32 years — his entire life. This application expressly stated that he had been in the United States in 1978, as a crewmember for Cubana Airlines. Herrera filed a third application at the Interests Section in Havana in July 1979, in which he again indicated he had been in the United States in 1978. Herrera’s application submitted to United States authorities in Managua on April 10, 1980, represented that he was a Nicaraguan national. In the earlier applications filed in Havana, Herrera represented himself as a Cuban national. As did the others, Herrera denied making any prior visa applications. In the earlier visa applications made in Cuba, Herrera identified himself as an employee of the official Cuban government airline. In his April 1980 visa application in Managua, he represented himself as an employee of the Nicaraguan Department of Transportation. In the visa application filed in Nicaragua, he claimed that he had resided in Nicaragua during the previous six years. But in one of several visa applications presented the previous year to the United States Interests Section in Cuba, Herrera represented that he had resided in Cuba during the preceding 32 years. In addition, Herrera denied ever being in the United States in his April 1980 visa application submitted in Managua. The 1979 general declarations fro Cubana Airlines list Herrera as a crew-member. In addition, Herrera expressly stated, in his July 4, 1980 application filed in Cuba, that he had been in the United States. The photographs in the different visa applications appear to be of the same person, but they are prints of the very same photograph. The signatures appear identical.

Based on the above-described discrepancies, the Government asserts that Espinosa, as pilot of the Defendant aircraft on September 1, 1980, knew that he and the two crewmembers were not lawfully entitled to enter or reside within the United States because he knew that the visa applications contained false representations. Espinosa was in charge of the Defendant aircraft on September 1, 1980 and consented to, and was privy to, the immigration violations that he and his two crewmembers committed. In their Letters Rogatory testimony, Espinosa, Toledo and Herrera admit to signing the visa applications submitted to the United States Embassy in Managua, Nicaragua.

CONCLUSIONS OF LAW

Under Counts IV and V of the Complaint, the Government alleges that because Cuba was the ultimate consignee of the Defendant aircraft and because no export license was obtained as required by 15 C.F.R. § 385.1, the aircraft was exported in violation of 15 C.F.R. § 385.1 and 15 C.F.R. § 387.4. Without reaching the question of who was the . ultimate consignee of the aircraft, the Court finds that the Government has failed to prove that Leybda Corporation had not obtained an export license for the Lear jet. Not one of the Government’s witnesses testified that Leybda had failed to obtain the appropriate export license, nor did the Government introduce any documentary evidence attesting to Leybda’s failure to obtain the appropriate licensing. Even the Government, in its Memorandum on Judicial Admissions, agrees that its reliance on Leybda’s non-verified third party complaint which has been severed from this action is insufficient to establish the nonexistence of an export license.

In support of Counts IV and V, the Government relies on the statement of Robert Duncan that Management Jets International did not obtain an export license. However, even the Government has admitted in its Response to the October 19, 1984 Request for Admissions, that whether or not Management Jets International obtained an export license is entirely separable from the question of whether or not Leybda obtained an export license. Accordingly, the Court finds that the Government has failed to produce sufficient evidence in support of Counts IV and V of the Complaint. Therefore, judgment shall be entered in favor of the Claimant as to Counts IV and V.

Count I of the Complaint is brought under the prior 1980 version of 8 U.S.C. § 1324. In order to recover under this statute and be entitled to the forfeiture of the Lear jet, the Government must show probable cause for the institution of the suit. United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210, 212 (5th Cir.1974). The Government predicates probable cause in this case upon the material misrepresentations made by Espinosa, Toledo and Herrera in the visa applications submitted to U.S. officials on April 9, 1980 in Managua, Nicaragua. As a result of these misrepresentations, the Government contends that the crewmembers were not lawfully entitled to enter the United States under 8 U.S.C. § 1182(a)(19) subjecting the Defendant aircraft to forfeiture under 8 U.S.C. § 1324.

Initially, the Court finds that 8 U.S.C. § 1182(a)(19) applies to this case as the crewmembers made material misrepresentations in their visa applications of April 1980. Had the response required in the visa application been accurate, further action may have been taken and further investigation may have been made by U.S. Customs officials. For example, if the crewmembers had correctly listed their pri- or residence in Cuba in applying for a visa, officials might have considered the applications in a different light and at the very least conducted further inquiry. Even a cursory investigation would have revealed that Espinosa, Toledo and Herrera submitted prior visa applications as crewmembers for Cubana de Aviación, the official Cuban government airline and that Toledo submitted a visa application in Havana as a Cubana Airlines crewmember as recently as three months before the Managua application. Similarly, officials could have determined that Toledo’s visa, which was submitted in Havana, was issued less than two months earlier. Had government officials known that the crewmembers lived in Cuba and had submitted prior visa applications, an investigation into the relationship between the applicants and Cuba may have been commenced. Based on the foregoing, the Court finds that the misrepresentations were material under 8 U.S.C. § 1182(a)(19) and justified a probable cause belief by agents of the United States Government that the Defendant aircraft’s entry into the United States on September 1, 1980 violated 8 U.S.C. § 1324(a).

The Court must next determine whether Leybda Corp. has successfully proven an absence of actual knowledge of the material misrepresentations and the violation of 8 U.S.C. § 1324(a). Once the Government demonstrates probable cause, the burden shifts to the Claimant, whose responsibility it is to prove the absence of actual knowledge. See United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895 (11th Cir.1985). It is not the Government’s burden to prove that the Claimant had actual knowledge. Id. The Court finds that the Claimant has failed to satisfy its burden as to the absence of actual knowledge. The Claimant presented no credible evidence that it was not aware of the crewmembers’ unlawful entry into the United States. In fact, evidence was introduced during trial indicating that the Claimant knew about the visa applications submitted by the three crew-members and was in fact acting in concert with them. The evidence established that Oscar Vasquez acted as Leybda’s agent and was involved in all aspects of the purchase and operation of the Defendant Lear jet. Documents introduced during the course of the trial indicated that it was Vasquez who arranged to have the three crewmembers and the jet flown to the United States for repairs. As the Claimant produced no owner director or officer of Leybda, Oscar Vasquez is the only known agent of Leybda. The only evidence from a Leybda official is from Jacinto Obregon Sanchez whose name does not appear on any documents submitted to the Court. Despite Obregon’s testimony in the Letters Rogatory received by this Court, the evidence indicates that Oscar Vasquez was the only individual acting on behalf of Leybda during the events which occurred prior to the seizure of the aircraft. The Court finds that the Government raised the presumption of actual knowledge which the Claimant failed to negate. United States v. One 1975 Ford F-100 Pick-up Truck, 558 F.2d 755, 756 (5th Cir.1977); United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d at 212.

The Claimant has asserted several defenses which merit only brief discussion. The Claimant asserts that it landed the plane in Fort Lauderdale on September 4, 1980 because of an emergency caused by a faulty fuel computer. In essence, the Claimant asserts that the Lear jet entered the United States under the duress caused by the faulty fuel computer. In order to establish the defense of duress, Leybda must show that the pilot and crewmembers flew the defendant Lear jet into the United States because

(1) [they were] under an immediate threat of death or serious bodily injury,
(2) [they] had a well-grounded fear that the threat would be carried out, and (3) [they] had no reasonable opportunity to escape.

United States v. Blanco, 754 F.2d 940 (11th Cir.1985).

The facts of the case, as adduced during trial, indicate that the immigration violations occurred during the September 1, 1980 landing of the Lear jet. The facts also showed that the jet arrived in Miami on September 1, as the result of a planned and scheduled flight from Cuba rather than as the result of a sudden emergency. Accordingly, the Court finds that the defense of duress is unavailable to the Claimant.

Leybda also asserts that 8 U.S.C. § 1324 is inapplicable to the circumstances surrounding the seizure of the Defendant Lear jet. Research has not revealed nor have the parties brought to the Court’s attention, a case involving similar facts brought under 8 U.S.C. § 1324. Although this statute is penal in nature and requires strict construction, see United States v. Washington, 471 F.2d 402 (5th Cir.), cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1973); see also Mayo v. United States, 413 F.Supp. 160 (E.D.Ill.1976) (holding that statutes authorizing forfeiture must be construed with strictness), it is the view of this Court that the words of the statute are clear and unambiguous and therefore shall be given their literal and ordinary meaning, United States v. Bryant, 671 F.2d 450 (11th Cir.1982); Smith v. Pingree, 651 F.2d 1021 (5th Cir. 1981).

The Court finds that this case presents a situation where an aircraft was used to bring into the United States “an alien crewman ... not lawfully entitled to enter or reside within the United States.” 8 U.S.C. § 1324. The purpose of the statute is satisfied by the forfeiture of the Defendant Lear jet. Leybda has presented no case law in support of its theory that this statute applies solely to traditional “smuggling” cases. Indeed, the United States Court of Appeals for the Fifth Circuit has rejected this argument in United States v. Washington, upon 471 F.2d 402, 404 (5th Cir.), cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1973). Accordingly, the Court finds that 8 U.S.C. § 1324 applies to the facts of this case.

Finally, the Claimant asserts that because the three crewmembers possessed B-l and D-l visas but were admitted to the United States as B-2 immigrants, there was no violation of 8 U.S.C. § 1182(a)(19) and hence no justification for the forfeiture of the Defendant aircraft. The Claimant introduced evidence through an attorney specializing in immigration to support its assertion that a B-2 visa is entirely distinct from a B-l visa and that a B-l visa will not gain an immigrant admittance to the United States as a B-2 immigrant. Even assuming “expert testimony” was necessary to aid the court in making a determination as to the custom and practice of Customs officials in admitting or not admitting persons with certain types of visas, the Court finds in view of all the testimony that ordinarily a B-l visa will not gain an immigrant admittance as a B-2 immigrant. However, the Court has also considered the testimony of the Customs Inspector who admitted the three crewmembers that he relied on the visas presented when admitting Espinosa, Toledo and Herrera and inadvertently admitted them as B-2 instead of B-l immigrants. Because the Customs Inspector relied on the fraudulent visas presented by the crewmembers, the Court finds that a violation of 8 U.S.C. § 1182(a)(19) occurred subjecting the Defendant aircraft to forfeiture.

Based on the foregoing, the Court finds in favor of the Claimant as to Counts IV and V of the Amended Complaint and in favor of the Plaintiff as to Count I of the Amended Complaint. Accordingly, the Defendant Lear Jet Aircraft, Serial No. 35A-280, Registration No. YN-BYO, is hereby forfeited to the United States Government.

      . Robert Duncan is the President of Duncan Aviation, the parent company of Management Jets International. Management Jets is the company which sold the Defendant Lear jet to Leybda Corp.


author: PATEL, District Judge.

text:
    REPUBLIC OF FRANCE, Plaintiff, v. Matin Tabatabai MOGHADAM, Defendant.
    No. CR-85-206 MISC (MHP).
    United States District Court, N.D. California.
    Sept. 12, 1985.

      Charles B. Burch, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.
    Dale A. Drozd, Hallinan, Osterhoudt & Poplack, San Francisco, Cal., for defendant.
   OPINION

PATEL, District Judge.

The instant proceedings were instituted on June 25, 1984 pursuant to a provisional arrest warrant from the Republic of France requesting the extradition of Matin Tabatabai Moghadam to France to stand trial on criminal charges. Because the unusual and involved factual background of the case is critical, it is set forth in detail below.

Facts

In 1983, prior to the incidents leading to this extradition request, Moghadam had been charged with heroin possession in indictments in the Western District of Washington and the Northern District of California. The Northern District charges were dismissed in December 1983. Moghadam was placed on probation after a guilty plea to the Washington charges.

On April 10, 1984 two women, Charla Custer and Catherine MacNeil, were arrested during a stopover in Paris while in route from Bombay to San Francisco. The two women were detained and their luggage was removed from the plane and searched. Customs agents found 20 grams of opium and 1010 grams of heroin in Custer’s luggage. Also in Custer’s possession was a letter written in Farsi implicating Moghadam in the smuggling attempt.

Custer made a statement to the French Magistrate on June 12, 1984. She claimed that Moghadam had proposed that she go to India to smuggle back heroin for him. She stated that Moghadam had given her $9,000 and 6 aerosol spray cans for the smuggling and instructed her on the route to take: San Francisco, London, Bombay, Hyderabad, Bombay, Paris, Montreal, San Francisco. One of the documents seized from Custer was a itinerary that Custer claimed had been written by Moghadam. Contrary to Custer’s testimony, the itinerary laid out the following route: “San Fran-to London? New Delhie [sic], Inda [sic], New Delhie [sic], Montreal (Not London)-Montreal-Vancouver, S.F.” (Exh. to Government’s Submission and Memorandum filed Nov. 16, 1984). Custer also stated that she had phoned Moghadam twice from India to tell him that everything was going well.

Custer was confined in a French prison. Sometime shortly after making the above statement she wrote a letter to the Bureau of Narcotics in San Francisco offering to give evidence against Moghadam in exchange for being transferred from the French jail. “... I can give you all the information you want, if you will please get me out of this hell hole, quickly.” “[P]lease help me and I will gladly do whatever it takes to help you, even if you wish to put me in jail there I would gladly go, just get me home please.”

Subsequently (the chronology of events is not entirely clear), in direct contradiction to her statements to the French officials and her letters to the DEA, Custer wrote a second letter, fully recanting her accusations against Moghadam. In the recantation letter she stated that she was addicted to heroin and had been recruited for the smuggling attempt by someone in California named Ali Faszim. Custer stated that she stayed in Bombay with two men named Azim and Hausain; she overheard them saying that if anything went wrong with the smuggling attempt they would blame Moghadam since he was a well-known smuggler; and Azim and Hausain placed the Farsi letter in her purse without her knowledge.

In the recantation letter Custer claimed that she accused Moghadam because she cared for Ali Faszim and did not want her future husband to know about her affair with Faszim. She also claimed to have feared for her life if she talked against Faszim. She concluded, “I have lied force-ably against Matin ... and my conscience will not let me rest at ease at this misinjustice [sic] I havfe caused and I know for a fact that Matin had nothing to do with this deal---- So I must now stress that Matin is completely innocent of this dealings [sic] and I must retract all previous statements against him and there is absolutely no reason I can testify against him!” (emphasis in original)

In August 1984, Custer wrote to agent Fiorentino, the Drug Enforcement Agency (“DEA”) agent assigned to both the previous case against Moghadam in the Northern District of California and the current extradition proceedings. Custer again attempted desperately to arrange her release to the United States in exchange for testimony against Moghadam:

I’m sure the only way to win this battle for my freedom & Matin’s arrest is for me to be extradited to San Francisco Federal Prison, where I could be the only witness who could testify, I’m so afraid to do this, because he’s so influential, but if I was under 24 hour watch in S.F.P. I am the one only person anywhere who will testify against this man & knew this is the only way to get this problem corrected!____ Can and will you please try to get me extradited back to San Francisco because of these reasons, I’m so lost in this strange land, I’m really trying not to crack up & to write letters like I’m fine ... but it’s getting to be impossible, I’m trapped here, with Matin able to fight there____
One last very important, bit request I have is someone must inform Matin that his cousin Azim did this to him & to me, I’m so tired of all this mess, but I refuse to be falsely accused by anyone at anytime longer.

On September 14, 1984 William DeFoe, Custer’s fiance, arrived at San Francisco Airport. According to DeFoe’s affidavit, he was questioned by agent Fiorentino who told him that he wanted to “nail” Moghadam and that it was unfortunate that Custer had changed her story. Fiorentino also stated that if Custer would withdraw her recantation she would be out of jail in a short time. If not, Fiorentino threatened that she would get seven to eight years.

At the time of his questioning, DeFoe was carrying a copy of the recantation letter from Custer. DeFoe claimed that the letter was seized from him and not returned. Agent Fiorentino testified that he received a copy of the letter. Despite the apparent significance of the total recantation, the government never brought the recantation letter to the attention of the court or the defendant. Defendant learned of the recantation letter through other sources.

Subsequent to the above incident, in September 1984, Custer again wrote to the DEA, this time withdrawing her recantation and re-accusing Moghadam. She explained her recantation by claiming that DeFoe had sent her a letter begging her to tell the truth and exonerate Moghadam and she stated that she feared for DeFoe’s life and lied to protect him and herself from Moghadam and his wife Jeanne. This letter is again almost hysterical in tone, accusing Moghadam and his wife of being “unfit citizens in our home, America,” and requesting that the agents “please help me, as I will do everything in my power to help you get Moghadam extradited [sic] to France, where he may be put in jail where he belongs.”

In approximately December 1984, the court instructed the government to refer the matter to the French judicial officials solely for the purpose of authenticating the recantation letter. The court directed that no further inquiry was to be made of Ms. Custer. The French magistrate interviewed Custer on January 4, 1985. Disregarding the court’s instructions, the French Magistrate questioned Custer about the circumstances of the recantation letter. Custer stated that she wrote the letter in June, 1985 after having received a letter from DeFoe asking her to exonerate Moghadam. Once again her story varied from previous recitations. This time Custer claimed that DeFoe told her that if she recanted the accusations, Moghadam would pay her bail to get out of prison. She denied the contents of the recantation and stated that Moghadam had planned her route, instructing her not to go through London or Germany. Custer stated, “For the return flight there were only three possible ways: the first was through London, the second through Germany, and the third by transiting in Paris. Given the instructions I received from Moghadam, I therefore chose the flight transiting in Paris. I believe that Moghadam should have known the itinerary I chose.” This version of the itinerary varies from Custer’s earlier statement in which she claimed that Moghadam had instructed her to travel to Paris and it varies from the itinerary allegedly written by Moghadam which does not include Paris as a stopover point.

Discussion:

In order to extradite an individual, the government, on behalf of the requesting nation, must establish the following elements as required by 18 U.S.C. § 3184 and the Treaty of Extradition between the United States and the Republic of France:

1. the existence of an extradition treaty between the United States and France enumerating the crimes with which the extraditee is charged;

2. that the charges for which extradition is sought are actually pending against defendant in France and are extraditable under the treaty.

3. that the defendant before this court is the same individual sought for trial in France.

4. that there is probable cause to believe that defendant is guilty of the charges pending against him in France.

5. that under the principle of “dual criminality,” a. the act alleged to have been committed by defendant is indeed punishable as criminal conduct in France; and b. the same act would be punishable under the criminal law of the United States.

The first and third elements (the existence of a treaty and identity of the individual) have clearly been met and are not in dispute. The second, fourth and fifth elements are discussed below.

Existence of Formal Charges against Moghadam

The extradition treaty between the United States and France provides that the parties “mutually agree to deliver up persons ... having been charged with or convicted of any of the crimes or offenses specified in the following article____” Treaty Between the United States and France: Extradition, Article I (“Treaty”).

Defendant argues that the French magistrate serves an investigative function and the arrest warrant is more like a subpoena than a formal charge. Therefore the actions of the magistrate do not constitute a formal indictment under French law and the treaty requirements are not met.

In Matter of Assarsson, 635 F.2d 1237, 1244 (7th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981) the court stated that it is appropriate to apply a narrow standard of review in extradition hearings based on respect for the sovereignty of foreign nations and an attempt to avoid error in construing foreign law. Therefore when a treaty does not condition extradition on the filing of formal charges, no such formal charges are required and it is sufficient that the person extradited be “accused.” Id. at 1242. See also Matter of Assarsson, 687 F.2d 1157, 1160 (8th Cir.1982) (declining to review magistrate’s conclusion that defendant had been “charged” within the meaning of the treaty because there was no requirement of formal charges in the treaty); Matter of Assarsson, 538 F.Supp. 1055, 1057-58 (D.Minn.1982), aff'd. 687 F.2d 1157 (8th Cir. 1982).

The relevant documents submitted by the French government include an arrest warrant, a copy of the relevant narcotics laws and a statement of the accusations against Moghadam. In addition there is a statement by the American Charge d’Affaires that Moghadam has been charged with violating French narcotics laws. These documents meet the narrow standard set out by the Seventh and Eighth Circuits and are sufficient to satisfy the requirement that the defendant be “charged with” a crime.

The Existence of Probable Cause:

Extradition hearings under 18 U.S.C. § 3184 are in the nature of a preliminary hearing where the magistrate need only determine if there is probable cause which justifies the holding of the accused to answer to a charge. Charlton v. Kelly, 229 U.S. 447, 460, 33 S.Ct. 945, 949, 57 L.Ed. 1274 (1913); Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir.1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970).

There is no uniform rule by which to determine how much evidence the court should hear. Charlton, 229 U.S. at 461, 33 S.Ct. at 949. Therefore the scope of evidence admitted is left to the sound discretion of the court guided by the distinction between contradictory and explanatory evidence set out below. Hooker v. Klein, 573 F.2d 1360, 1369 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978).

Because of the narrow scope of the extradition hearing, the accused cannot introduce evidence which would be admissible at trial on the issue of guilt, but can introduce evidence rebutting probable cause. While the accused may produce evidence to explain matters, the court may exclude evidence which merely contradicts government testimony, poses conflicts of credibility or establishes a defense. See Collins v. Loisel, 259 U.S. 309, 315-16, 42 S.Ct. 469, 471-72, 66 L.Ed. 956 (1922) (permissible evidence is that “which might have explained ambiguities or doubtful elements in the prima facie case ...” and excludable evidence is that relating strictly to the defense.); Hooker v. Klein, 573 F.2d at 1369 (“evidence of facts contradicting the demanding country’s proof or establishing a defense may properly be excluded.”); Matter of Sindona, 450 F.Supp. 672, 685 (S.D. N.Y.1978) (“the accused has no right to introduce evidence which merely contradicts the demanding country’s proof, or which only poses conflicts of credibility”).

Courts have struggled to clarify the distinction. In Sindona, 450 F.Supp. at 685, the court stated that explanatory evidence is “reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause____ The decisions are emphatic that the extraditee cannot be allowed to turn the extradition hearing into a full trial on the merits.” Shapiro v. Ferrandina, 355 F.Supp. 563, 572 (S.D.N.Y.) modified and affirmed, 478 F.2d 894 (2d Cir.) cert. diss’d, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973) held that the magistrate should permit evidence that “tends to obliterate probable cause ... but not what merely contradicts it. The improbability or the vagueness of testimony may destroy the probability of guilt, but the tendering of witnesses who testify to an opposite version of the facts does not.”

The probable cause standard applicable in extradition proceedings is defined under Federal law. Sindona v. Grant, 619 F.2d 167, 175 (2d Cir.1980). Defendant argues that the government has not met the federal probable cause standard which requires “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.” Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C.Cir. 1973). Moghadam relies principally on the existence of the recantation letter as obliterating probable cause. In addition he stresses the conduct of law enforcement officials in this country, especially what he considers to be overreaching on the part of the United States government in seeking extradition to France.

The most significant aspect of the probable cause determination is Custer’s recantation letter which was later withdrawn. In Application of D'Amico, 185 F.Supp. 925, 930 (S.D.N.Y.1960), appeal diss’d sub nom. United States ex rel D'Amico v. Bishopp, 286 F.2d 320 (2d Cir.), cert. denied sub nom. Farace v. D'Amico, 366 U.S. 963, 81 S.Ct. 1924, 6 L.Ed.2d 1254 (1961) the court considered the fact that testimony against the defendant was recanted by the witness. The court stated that the “testimony of an accomplice is to be viewed with healthy scepticism____ Where, as here, such testimony has been completely recanted, its probative value is thin indeed.” Because of the recantation, the court held that there was grave doubt as to whether the evidence demonstrated reasonable grounds to believe defendant was guilty of the charged crime.

The Seventh Circuit has held that a court is entitled to exclude recantations of earlier statements on the grounds that the recantation merely contradicted or challenged the credibility of facts implicating the ex-traditee, Eain v. Wilkes, 641 F.2d 504, 511 (7th Cir.) cert. denied 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). The facts of Eain, however, are distinguishable from the instant case. In Eain defendants had made inculpatory statements before an Israeli police officer sworn to be true before an Arabic speaking judge who conversed with defendants in Arabic and determined that they understood their statements and made the confessions of their own free will. The offered recantations, in contrast, were made to private counsel while the defendants were in prison. Id. The original statements therefore had more indicia of reliability than the recantations. The instant factual situation is the opposite. Custer’s initial statement made before a French magistrate was self-serving since she attempted to shift the bulk of the blame to Moghadam. Subsequently she used her accusations against Moghadam as a bargaining chip with the DEA and in fact offered to “do whatever it takes” to get out of the “hell hole” of a French jail. In contrast the recantation was not self-serving in any fashion. In fact, quite to the contrary, the recantation went against Custer’s self interest in being transferred from the French jail. Thus Custer’s recantation appears to have more indicia of reliability than the original accusations. See United States v. Estrada, 733 F.2d 683, 686 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 168, 83 L.Ed.2d 103 (1984) (statements against interest by informant carry added indicia of reliability).

The recantation evidence here is critical and must be given substantial consideration for it goes to more than just the credibility of a witness, it negates' the only evidence of probable cause. Furthermore, the substance and circumstances of the recantation indicate that it has more indicia of reliability than the original accusations.

Charla Custer subsequently withdrew her recantation under circumstances that are not entirely clear. There is at least some evidence of a veiled “threat” by the government that if Custer did not withdraw her recantation she would spend substantial time in the French jail. The whole of Custer’s behavior, including her initial desperation to strike a deal in order to be transferred from France, the almost hysterical tone of her accusations, her subsequent spontaneous and total recantation of the accusations and the unexpected withdrawal of that recantation relate to more than just her credibility as a witness. These facts are relevant to her basic competence to testify and the inherent reliability of the only evidence tending to show probable cause. This is more than a self-serving recantation or “the mere presentation of witnesses who testify as to an opposite version of facts;” it is evidence that goes to the “improbability or vagueness of testimony” that may destroy the probability of guilt. Freedman v. United States, 437 F.Supp. 1252, 1266 (N.D.Ga.1977). See also Shapiro v. Ferrandina, 355 F.Supp. at 572.

Furthermore, the instant situation presents special concerns that demand a heightened scrutiny by this court in the interest of justice. Prior to the extradition, the government was in the midst of instituting deportation proceedings against Moghadam, but was stymied because there was no country willing to accept him and Iran (his native land) is not a country to which he may be deported because of the political condition there. If Moghadam is extradited to France, even if found innocent of the charges against him in that country, he will not be able to reenter the United States where his wife and child reside. The harsh results of an erroneous extradition based on untrustworthy accusations militate against this court’s applying too lenient a standard of review in determining probable cause.

The government argues that there is corroborating evidence for Custer’s testimony, including the statement of Catherine Mac-Neil (Custer’s traveling companion) implicating Moghadam; the letter written in Farsi seized from Custer implicating Moghadam; hotel records showing that Custer telephoned a number connected to Moghadam; and the fact that Moghadam has a recent conviction for heroin importation. Most of this evidence, however, is either •ambiguous or was explained away by the recantation.

Furthermore, the fact that the government appears to have been somewhat overzealous in the extradition proceedings, while not rising to the level of clear misconduct, also casts doubt on the presence of probable cause. Custer was aware that the government was anxious to extradite Moghadam and she clearly attempted to profit from that prosecutorial zeal. Agent Fiorentino admittedly stated to Custer’s fiance, DeFoe, that it was unfortunate that she had recanted and if she did not return to her original story she might serve seven to eight years in French prison. It is only reasonable to presume that Custer learned of this veiled “threat” and may have been influenced by it in the withdrawal of her recantation. These circumstances cast additional doubt on what is already highly questionable evidence.

For all of the above reasons, the court concludes that the government has failed to meet its burden of showing probable cause to extradite Moghadam to France.

The Principle of Dual Criminality:

Under the doctrine of dual criminality, the particular act charged must be criminal in both the requesting and the extraditing jurisdictions in order to justify extradition. Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922). The extradition treaty between France and the United States explicitly incorporates this principle by providing that: “Extradition shall be granted for the following acts if they are punished as crimes or offense by the laws of both States.” Supplementary Convention to the Extradition Convention of January 6, 1909 between the United States of America and France, Article II (1970). A related provision states that no individual will be extradited except:

upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.

Treaty, Article I

The principle of dual criminality does not require that the charges be identical, but only that the acts be punishable in each country. (The “law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive____” Collins, 259 U.S. at 312, 42 S.Ct. at 470-71.) See also Hu Yau-Leung v. Soscia, 649 F.2d 914, 918 (2d Cir.), cert. denied, 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 389 (1981) (the proper inquiry is “if the individual had committed the same acts in the United States would a crime have been committed ... ”) Therefore the court rejects defendant’s argument that Moghadam is charged as a principal in France, a charge that would not be upheld in this country. The French charges, while not explicitly using the word conspiracy, logically amount to the equivalent of conspiracy in this country.

In analyzing Moghadam’s liability as a conspirator, the court must first consider the criminality of Custer’s acts and whether the United States would assert jurisdiction to punish Custer’s conduct had it occurred within United States borders. The government claims that Custer’s acts would have violated 21 U.S.C. § 846 which proscribes conspiracy to distribute, manufacture and possess with intent to distribute controlled substances and 21 U.S.C. §§ 963 and 952 which proscribe conspiracy to import controlled substances into the United States.

Several cases have imposed liability on defendants for transporting contraband through the United States. In United States v. Gomez-Tostado, 597 F.2d 170 (9th Cir.1979), defendant was apprehended in the United States while transporting heroin from one area of Mexico to another. The court held that he could be convicted for possession with the intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1) even though the intended distribution point was in Mexico. Id. at 172-73. In United States v. Feld, 514 F.Supp. 283 (E.D.N.Y.1981), defendants attempted to smuggle cocaine from South America to Germany via New York. Customs inspectors removed defendants’ luggage from the plane in New York and discovered the drugs. The court held that 21 U.S.C. § 841(a)(1) did not require any intent to distribute narcotics inside the United States. Since the formation of the conspiracy as well as overt acts in its furtherance (defendants intended to switch luggage tags in New York) were committed within United States borders, jurisdiction was proper. The court based its conclusion in part on the Single Convention on Narcotic Drugs, 18 U.S.T. 1407, T.I.A.S. No. 6298, ratified by the United States, see 21 U.S.C. § 801(7) which mandates that parties to the treaty shall adopt measures to insure that dispatch in transit, transport, importation and exportation of drugs is a punishable offense. Id. at 287-88. Finally, in United States v. Madalone, 492 F.Supp. 916 (S.D. Fla.1980) defendant was arrested in Miami Airport while traveling between Nassau and Montreal. Heroin was discovered in his luggage which had been checked through United States customs in Nassau to Montreal. Id. at 918. The court held that defendant’s behavior amounted to importation of contraband into the United States and as such was criminal under United States laws. “[T]he importation of heroin for transportation through the United States affects its commerce irrespective of whether it is eventually distributed in the United States.” Id. at 919.

While the cases suggest that Custer’s actions might be considered criminal under the laws of this country, liability is far from clear and there are important factual distinctions between the instant case and cases relied on by the government. In Gomez-Tostada the transportation across United States territory was part of an established smuggling pattern designed to avoid Mexican roadblocks. 497 F.2d at 172. In addition the amount of time spent in United States territory (travel between Texas and California) was substantial and the opportunity for a smuggler to cause a dangerous and detrimental effect in this country was significant. In contrast, the instant case does not involve an established smuggling pattern and the amount of time spent in France was insubstantial.

In Feld the court relied on the fact that the conspiracy was formed and overt acts in its furtherance were committed within United States borders. 514 F.Supp. at 286. (Two individuals boarded the airplane in New York with luggage bearing the names of the defendants. The defendants were to then switch the luggage tags so that it would appear they were arriving from New York rather than Bolivia. Id. at 285.) In contrast, the conspiracy here was not formed in France and no overt acts were taken by Custer in France. She was simply a passenger in-transit, who as far as the court can determine, did not even attempt to stopover in France.

Finally, in Madalone, defendant actually went through United States customs in Nassau. 492 F.Supp. at 918. Custer made no attempt to clear French customs at any time.

The distinction between a defendant who causes an effect in the stopover country and a “true in-transit passenger who is never brought under the control of the customs authorities,” and therefore could not “import” any substance into the United States was suggested by the court in United States v. Pentapati, 484 F.2d 450, 451 (5th Cir.1973). The Pentapati court did not directly reach the validity of this distinction since the defendants were arrested while clearing customs, and were therefore not true in-transit passengers. Id. The distinction was examined, but also not directly reached by the district court in Madalone, 492 F.Supp. at 919. The court suggested that if an in-transit distinction did exist, it would be limited to situations in which “the passenger and — by extension— the baggage are ‘never brought under the control of the customs authorities.’ ” (quoting Pentapati, 484 F.2d at 451). Cf. United States v. Sindin, 620 F.2d 87 (5th Cir.1980). (Defendant was arrested while going through customs. Court rejected defendant’s argument that he was purely an international in-transit passenger. “Sinden was within the territorial limits of the United States at the time of his visit even though he had not left the custody of the customs area.” Id. at 90).

Charla Custer fits into the category of the true in-transit passenger since there is no evidence that she attempted to clear customs or to stopover at the Paris airport. Under the Pentapati distinction, she therefore would not be guilty of smuggling and Moghadam, correspondingly, could not be held liable as a conspirator.

This court need not, however, specifically recognize an in-transit exception to the assertion of jurisdiction since even assuming that Custer would be liable under United States law for importing heroin, the court concludes that the exercise of extraterritorial jurisdiction by this country over Moghadam (under analogous circumstances) would be unreasonable. Hence the requirements of dual criminality are not met.

Unlike Custer, Moghadam’s acts were committed outside of the jurisdiction of the country requesting extradition. There are five theories justifying the extraterritorial application of penal laws. United States v. King, 552 F.2d 833, 850-51 (9th Cir.1976) cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). The government relies on the territorial theory in which jurisdiction can be asserted over conduct taking place within the territorial boundaries of the country. This basis for jurisdiction has been extended to apply even to “[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it____” Id. at 851-52 (quoting Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911)) (emphasis added).

General conspiracy law provides that a “defendant is vicariously liable for the substantive acts of her coconspirators whether or not she directly participates in such acts, so long as those acts are committed pursuant to and in furtherance of the. conspiracy.” United States v. Saavedra, 684 F.2d 1293, 1300 (9th Cir.1982). Furthermore, the court may assert jurisdiction over a defendant whose acts were done outside of the United States if his co-conspirators committed acts in furtherance of the conspiracy in the United States and if he intended to produce detrimental effects within the United States. Chua Han Mow v. United States, 730 F.2d 1308, 1311-12 (9th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985). See also United States v. Schmucker-Bula, 609 F.2d 399 (7th Cir.1980) (court has jurisdiction over conspiracies when one of conspirators commits overt act within territorial jurisdiction of the country. Id. at 402).

However, even if Moghadam could technically be held liable for Custer’s acts under a conspiracy theory, the extraterritorial exercise of jurisdiction must be reasonable. In Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 923 (D.C.Cir.1984) the court stated that “[a]s long as the territorial effects are not so inconsequential as to exceed the bounds of reasonableness imposed by international law, prescriptive jurisdiction is legitimately exercised,” id. at 923 (citation omitted), and “[¡Jurisdiction exists only when significant effects were intended within the prescribing territory”. Id. (emphasis added).

The territorial effects in the instant case are minimal. The transportation of heroin through France was not part of an established smuggling pattern; Custer did not attempt to clear customs or to enter France in any manner. Furthermore there is no proof of any intent on the part of Moghadam to cause effects in France. Moghadam neither entered France nor even telephoned into France. In fact it is not clear that he instructed Custer to take a flight with a stopover in France. Custer’s testimony is contradictory in this respect and like most of her testimony, is inherently unreliable. The only piece of documentary evidence allegedly connected with Moghadam indicates that indeed he did not instruct Custer to fly through France.

In this respect the instant case is distinguishable from Chua Han Mow and Schmucker-Bula. In both of the above cases, defendant conspired to import drugs into the United States. The intent to cause a detrimental effect was clear.

The government relies on Melia v. United States, 667 F.2d 300 (2d Cir.1981) in arguing that the exercise of jurisdiction would be proper in the instant case. In Melia an Italian citizen residing in the United States conspired with individuals in Canada to murder someone in the United States. Melia called one of the co-conspirators in Canada in furtherance of the conspiracy, but had no other contacts with Canada. The court held that Melia was extraditable to Canada based on the conspiracy to commit murder charge, since conspiring with persons in Canada was a sufficient nexus to support Canadian jurisdiction and there was evidence that Melia had made one or more phone calls to Canada. Id. at 303. In its analysis, the court determined that the United States would have jurisdiction under similar circumstances both because the mere presence of a conspiracy within a country has a detrimental effect and because Melia performed acts within Canada (the telephone calls) that furthered the conspiracy. Id. at 304. Moghadam neither conspired with anyone in France nor performed any overt acts in France. There is absolutely no evidence to demonstrate that Moghadam intended to cause any detrimental effects in France. Under these circumstances it would be clearly unreasonable for a court in this country to exercise jurisdiction over Moghadam. See Laker, 731 F.2d at 923.

The government has failed to show either the existence of probable cause or that the courts of this country would be entitled to exercise jurisdiction over Moghadam for the alleged acts of conspiracy committed outside of the country. The principle of dual criminality is not met. The court therefore declines to grant the extradition request.

IT IS SO ORDERED.

      . The French charges against Moghadam are as follows:
      Article 627 of the Public Health Code
      1. Illicit importation of heroin;
      2. To have participated in an association or an agreement in order to illicitly import heroin;
      and complicity in offenses (Art 59 and 60 of the Penal Code) for having:
      1. by donation and promises incite the illicit importation of heroin;
      2. given instructions to commit this importation;
      3. furnished the means that served in this action with the knowledge that they would serve that purpose.

      . Documents from the hotel in Bombay indicate that Custer twice called a number belonging to Moghadam’s brother-in-law. Moghadam’s sister (who lives at the number called by Custer), testified that William DeFoe, Custer’s fiance, was employed as a workman at her home and often received calls there.

      . Agent Fiorentino had been in contact with Custer's mother and had given her his name and address. Fiorentino received two or three letters from Custer addressed to him personally. He stated that he responded only once to Custer’s letter but had no copies of his letter to her.

      . In another letter written by Custer to her mother and transmitted to DEA agent Fiorentino, Custer wrote: "I’m still writing the FBI Department of Narcotics in Wash. D.C. and in San Fran, in hopes of getting extridited [sic] out of here to testify against Jean & Matin, Bill’s x wife and her new husband." She stated further, "But every penny every day and every pain, these will all be repaid from Matin and Jeanie. Them I am very bitter about and I will make sure when I am out of this zoo ... I will have my vengence [sic] on them and they will know pain and poverty and we will be rich and much stronger, smarter and more knowledgeable because of this time here!”

      . At a court hearing on April 16, 1985 agent Fiorentino admitted that he made the remarks concerning a maximum sentence of seven to eight years if Custer did not return to her original story.

      . Defendant alleges the following as evidence of overreaching and examples of government misconduct:
      1. Moghadam received a probationary sentence in federal court in late 1983. Soon after federal agents began to "harass” Moghadam. He was arrested by INS agents pursuant to a deportation warrant; he was taken to the strike force office and subjected to "grilling" without an attorney and was told that the government would “get" him.
      2. The French magistrate in her warrant referred to Moghadam’s wife incorrectly by the name of a woman who had been a witness against Moghadam in the deportation hearings but had no connection to the extradition case. Moghadam's attorney states that he knows of no way the magistrate could have known of the name of that woman unless federal agents were involved in the French proceedings.
      3. When extradition proceedings began, the same United States Attorney and the same DEA agent who had prosecuted Moghadam in this district represented the government in the extradition proceedings.
      4. William DeFoe, Custer's fiance, when questioned by agent Fiorentino was told by Florentino that he would "nail” Moghadam personally. The agent also told DeFoe that if Custer refused to withdraw her recantation letter he would see that she spent seven to eight years in a French prison.
      5. The recantation letter was seized from DeFoe and not returned to him.
      6. The government agents did not bring the recantation to the court’s attention and actually confiscated and suppressed evidence relevant to probable cause.
      7. Government agents had contact with Custer following her incarceration.
      8. The French government questioned Custer concerning her recantation letter after this court had explicitly instructed the government that Custer was not to be questioned beyond simply authenticating the letter.
      Certain of the above allegations are in dispute. Others do not rise to the level of affirmative governmental misconduct. While the court finds the government's conduct in this case disturbing, it does not rise to the level justifying denial of extradition solely for that reason. However, the government’s conduct will be considered in determining probable cause.

      . It is clear from the government's comments in this case that it is more than a little dissatisfied with the sentence imposed by the Western District of Washington. In its eagerness to proceed against Moghadam in the extradition matter the government failed to comply with treaty requirements and a motion to quash was granted. The interest of France in obtaining Moghadam’s extradition and prosecuting him is also inexplicable. Moghadam has not set foot on French soil or injected himself into France in any way in connection with the claimed offense. Yet if he is extradited to France, that country may well remain his permanent abode for he cannot reenter the United States. Also, as observed herein, Custer's bags were apparently removed from the plane and searched even though she was not passing through French customs and France was not a destination or stopover for her.

      . The French charges appear to amount to the equivalent of a conspiracy charge as evidenced by the following: 1. the arrest warrant states that Moghadam is charged with “complicity" and "an interest in” commission of narcotics offenses; 2. one of the statutes referred to states that an attempt to commit a substantive offense or an "association” or "the agreement” to commit a substantive offense is punishable; 3. the magistrate cites Article 399 of the French Customs Code which applies to any person who is an "interested” party in the smuggling of drugs. Section 2a defines interested party as the owner of the smuggled goods or someone who acts in agreement according to a preconceived plan.

      . In justifying its conclusion the court pointed both to the indirect effect on our relations with other nations and to the direct effect of permitting the United States to be used as a conduit— once the contraband entered the country, the United States would be at the mercy of the "good intentions" of smugglers not to distribute within the United States. Furthermore, there would be an increased potential for violence within this country. Madalone, 492 F.Supp. at 919.

      . The five theories are: 1. territorial — -jurisdiction based on where the offense is committed; 2. nationality — jurisdiction based on the nationality of the person committing the offense; 3. protective — -jurisdiction based on national interest injured; 4. universality — jurisdiction based on custody of the accused; and 5. passive personality — jurisdiction based on the nationality of the person injured. Rocha v. United States, 288 F.2d 545, 549 n. 4 (9th Cir.) cert. denied 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241 (1961).

      . This court acknowledges that detrimental effects can be caused by drug transportation across the borders of a country and such effects can be inferred from Congressional intent to cooperate with other nations in controlling international traffic in drugs, 21 U.S.C. § 801a(l), and from the 1961 Single Convention on Narcotics Drugs.
      However, in the instant case, because Custer was a true in-transit passenger, it is not clear that she could have been held liable for importing drugs. If liability is imposed, it hangs on a filament at best.