The pilots of Dassault Falcon 50 F-GXMC–which in March 2013 was caught in Punta Cana, Dominican Republic, just before takeoff for Saint-Tropez, France, with 1,500 pounds of cocaine on board (street value $26 million)–are crying foul.
The case has since been known as “Air Cocaine,” and in August pilots Pascal Fauret and Bruno Odos received a 20-year jail sentence from a Dominican tribunal for their “connection to commit international drug smuggling.” But they claim the punishment contradicts international conventions, a position supported by pilots’ unions. The point at issue is whether a crew is responsible for the baggage and cargo loaded aboard an aircraft.
The Dominican judges said the flight was private so the pilots are responsible. While the crewmembers and pilot union with whom AIN talked agree that pilots of a private flight are responsible, they contend that the offending flight should be considered commercial, absolving the pilots of any responsibility for the baggage and cargo. The pilots were employed by now-defunct SN-THS, trading as Aerojet Corporate, a charter operator based in Lyon, France. The aircraft was in SN-THS’s fleet under a management contract and the owner had no relationship with the customer. The flight was assigned a flight number ending with “N,” meaning non-scheduled air transport and implying it was commercial, argue the pilots.
Quoting Annex 17 of the Convention on international civil aviation, Christophe Naudin, criminologist and air transport security specialist, told AIN, “Each contracting state shall establish measures to ensure that originating hold baggage is screened before being loaded onto an aircraft engaged in commercial air transport” and the baggage must then be “protected from unauthorized interference.” Fauret’s and Odos’s lawyers thus seek to place responsibility on the Dominican state, since the country is a member of ICAO.
The International Federation of Airline Pilots’ Associations (Ifalpa) holds a similar opinion. “As pilots, we cannot be responsible for what is contained in the luggage or cargo that is placed on the aircraft. We have no practical way to know the contents of luggage or cargo loaded on the aircraft. It would appear that the ruling of the judge in this case makes pilots criminally responsible for the contents of the baggage and cargo on the aircraft, even though they have no responsibility for or means to know what is loaded on the aircraft,” captain Fanie Coetzee, Ifalpa’s executive v-p for professional and government affairs, wrote in a letter to all member associations in late August.
In European regulations, there is no such thing as a “direct responsibility of the pilot when it comes to passenger luggage content,” a spokesman for the French civil aviation authority (DGAC) told AIN. The closest security rule, he suggested, deals with cargo that might jeopardize the safety of the aircraft or its occupants. In that instance, the commander can unload it. “But this rule does not target illegal substances,” the DGAC spokesman acknowledged.
A spokesman for the French Gendarmerie police contradicted the DGAC’s opinion, telling AIN, “The pilot is actually responsible for his cargo,” but he could not gather any more detail from his colleague investigators. Commenting on the gendarmerie’s position, the DGAC maintains “it has no rule that would substantiate the responsibility of the pilot.”
The Tokyo convention may be another document of reference with global applicability. Among others, it covers “offenses against penal law.” In the Punta Cana case, the aircraft was considered in flight under the convention’s terms because its doors were closed. The commander therefore had full authority if he suspected something. However, the Tokyo convention focuses on instances when a passenger threatens safety or “good order and discipline” on board.
The pilot’s remit is limited, according to Xavier Marchand, an SNPL France Alpa official. “The captain has to gather information on the nature of the luggage or cargo if it is hazardous material; he also needs information on weight and balance,” he said. If the pilot wonders about luggage content, he is not supposed to search it before the flight but could call the local police or customs, Marchand suggested.
Customer Service Element
The two pilots, however, said in a TV report that it is common practice in business aviation not to question the content of baggage. They also allege it is not especially unusual for one passenger to have a lot of luggage.
There are indications that Fauret and Odos took a cautious attitude with this particular passenger, who they were carrying for the third time. After the first flight–from the Dominican Republic to France–with Nicolas Pisapia on board, they apparently reported suspicion. French weekly Le Point wrote that an SN-THS executive contacted a counter-drug unit of the police, which said it had nothing on Pisapia. Before the second flight–from Quito, Ecuador–the local police inspected the luggage with specially trained dogs and cleared the aircraft, according to Philippe Heneman, president of a support committee he founded for Fauret and Odos.
He explained that Fauret was alone in the cockpit, preparing the FMS for the transatlantic trip, when the luggage was delivered. Odos was at the office of aircraft handling company Swissport. Fauret saw that the baggage handlers were wearing airport uniforms. Most of the suitcases were placed in the hold and four or five of them were installed in the cabin, Heneman said.
Video footage released by the Dominican police shows the cabin almost full of suitcases. “The pilots stored their suitcases in a dedicated locker, but on the video they were in the cabin; even the catering container had been removed from the galley and placed on a seat,” he said. He also contends the number of suitcases has been exaggerated by the police–26, the number commonly referred to, includes crew luggage. The real number was between 18 and 22, according to Heneman.
Other voices are making themselves heard. The former chief of the country’s drug enforcement agency, Rolando Rosado Mateo, says the pilots could not ignore what they were carrying. Alain Castany, the broker who had brought the customer to SN-THS, was on board (he was wearing a pilot uniform although he was not rated on the Falcon 50, according to Heneman). Castany in a TV report acknowledged a lack of vigilance on his part. Pisapia maintains the luggage is not his.
Finally, a pilot familiar with business aviation practices in France argued that the two pilots should have suspected something illegal on the basis of the amount of luggage and the fact that transatlantic empty legs, like the ones they had flown for Pisapia, are rare.
All four people on the Falcon were jailed immediately after their arrest, and their lawyers campaigned the judge to free them. During the judicial process, after they had spent 15 months in prison, the judge agreed on provisional freedom until the first trial, which has now taken place. Despite the sentence, they are free until the appeals trial.
Pilots Should Be on Guard for Smuggling, Exec Warns
On-demand passenger and cargo carriers must remain vigilant against attempts to use their services for drug smuggling and other illegal activities, one retired cargo executive told AIN. In the so-dubbed “Air Cocaine” case, the international pilot community is grappling with the rights of the two French Falcon pilots sentenced to 20 years for “connection to commit international drug smuggling.” The International Federation of Air Line Pilots’ Associations contends that because the flight was a commercial operation, the pilots are not required to open baggage. The U.S. FAA agrees with this contention, saying, “We have no FAA rules that we require a pilot to know what’s in packages or what passengers bring on board.”
The closest ordinance, according to the FAA, is a Department of Transportation regulation calling for the revocation of airman certificates for controlled substance violations (Title 49, Section 44710). These include convictions by the U.S. or other states for “knowingly carrying out an activity punishable…related to a controlled substance.” That regulation also includes use of aircraft to facilitate the activity.
Even Transportation Security Administration security protocols, which do call for some vetting of passengers and assurance regarding firearms, do not call for a pilot to inspect packages or luggage, the cargo executive added. However, he cautions that the Federal Aviation Regulations also put the pilot-in-command in charge of the operation of the aircraft (CFR 91.3). Also, when on foreign soil, the pilot is subject to foreign laws and can be subject to the whims of local law enforcement, he further warns.
The “Air Cocaine” case is not the first involving pilots detained for drug smuggling in the Dominican Republic. In 2010, two U.S. cargo pilots were detained for more than two weeks in that country after more than 300 pounds of cocaine was found stashed behind the ceiling and floor panels of their Shorts SD3-30. The pilots, employed by Wisconsin operator Air Cargo Carriers (ACC), apparently were ensnared in a larger drug trafficking investigation that involved the arrest of 18 Dominican military officials. The flight had arrived in Santo Domingo from Puerto Rico, and the cargo reportedly was loaded while the pilots were away from the aircraft.
No evidence surfaced linking the pilots to the drug operations, and they were released. While the pilots received some assistance from the U.S. Embassy, ACC senior executives are credited with ensuring their release, working directly with Dominican officials.
The cargo executive stressed that operators cannot rely solely on U.S. assistance in such matters. A number of other diplomatic factors could make the U.S. government reluctant to get involved. In some cases, the detention might require escalation within the U.S. government. In the case involving the ExcelAire pilots held in Brazil after their Legacy collided with a Gol Airlines 737, an incident not related to onboard contraband, the aviation community made urgent appeals directly to U.S. Secretary of State Condoleezza Rice for U.S. involvement.
Pilots must be prepared for all manner of situations, the cargo executive said, noting his former company had trained its pilots for different potential predicaments. Pilots will turn away and have turned away packages that are suspicious, he said, noting there can be obvious clues, such as the smell of marijuana or how the packages are wrapped. But smugglers, who frequently eye aircraft as a means to transport drugs, find creative ways to load drugs, from packing children’s toys to swallowing the drugs. “The business is so pervasive its like trying to sweep up the Sahara Desert with a toothbrush,” he said.