924 F.2d 1086, 288 U.S.App.D.C. 129
(Cite as: 924 F.2d 1086)
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
924 F.2d 1086 / FOR EDUCATIONAL USE ONLY / Page 1924 F.2d 1086, 288 U.S.App.D.C. 129
(Cite as: 924 F.2d 1086)
U.S. v. Yunis
C.A.D.C.,1991.
United States Court of Appeals,District of Columbia Circuit.
UNITED STATES of America
v.
Fawaz YUNIS, a/k/a Nazeeh, Appellant.
No. 89-3208.
Argued Oct. 22, 1990.
Decided Jan. 29, 1991.
Following denial of defendant's motions to dismiss, 681 F.Supp. 891 and 681 F.Supp. 896, defendant was convicted in the United States District Court for the District of Columbia, Aubrey E. Robinson, Jr., Chief Judge, of conspiracy, aircraft piracy and hostage taking, and he appealed. The Court of Appeals, Mikva, Chief Judge, held that: (1) Hostage Taking Act provided basis for exercising jurisdiction over defendant in United States; (2) principles of international law could not preclude exercise of personal jurisdiction over defendant; (3) Posse Comitatus Act's prohibition against use of Army or Air Force in law enforcement did not extend to Navy; (4) district court properly declined to order Government to release classified information regarding conversations between hijacked airplane and control tower; and (5) in determining whether defendant could be treated as a soldier for purposes of his obedience to military orders defense, jury could properly consider whether organization to which defendant allegedly belonged regularly wore uniforms.
Affirmed.
West Headnotes
[1] Criminal Law 110 97(.5)
110 Criminal Law
110VIII Jurisdiction
110k91 Jurisdiction of Offense
110k97 Locality of Offense
110k97(.5) k. In General. Most Cited Cases
(Formerly 110k97)
Hostage Taking Act provided basis for exercising jurisdiction in the United States over defendant charged with hijacking an airplane and taking hostages in a foreign country, regardless of whether defendant was “found” in the United States, where two of the victims were United States citizens. 18 U.S.C.A. §§ 1203, 1203(b)(1)(A-C).
[2] Criminal Law 110 98
110 Criminal Law
110VIII Jurisdiction
110k98 k. Jurisdiction of the Person. Most Cited Cases
International Law 221 7
221 International Law
221k7 k. Extraterritorial Rights and Jurisdiction. Most Cited Cases
Principles of international law could not preclude exercise of personal jurisdiction over defendant charged with violating Hostage Taking Act by hijacking plane outside of United States. 18 U.S.C.A. §§ 1203, 1203(b)(1)(A-C).
[3] Criminal Law 110 97(.5)
110 Criminal Law
110VIII Jurisdiction
110k91 Jurisdiction of Offense
110k97 Locality of Offense
110k97(.5) k. In General. Most Cited Cases
(Formerly 110k97)
International Law 221 7
221 International Law
221k7 k. Extraterritorial Rights and Jurisdiction. Most Cited Cases
Under “universal principle” theory of international law, states may prescribe and prosecute certain offenses recognized by community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even absent any special connection between state and offense.
[4] Criminal Law 110 97(.5)
110 Criminal Law
110VIII Jurisdiction
110k91 Jurisdiction of Offense
110k97 Locality of Offense
110k97(.5) k. In General. Most Cited Cases
(Formerly 110k97)
International Law 221 7
221 International Law
221k7 k. Extraterritorial Rights and Jurisdiction. Most Cited Cases
Under “passive personal principle” of international law, state may punish nonnationals for crimes committed against its nationals outside of its territory, at least where state had particularly strong interest in the crime.
[5] Criminal Law 110 97(.5)
110 Criminal Law
110VIII Jurisdiction
110k91 Jurisdiction of Offense
110k97 Locality of Offense
110k97(.5) k. In General. Most Cited Cases
(Formerly 110k97)
Court should hesitate to give penal statutes extraterritorial effect absent clear congressional directive.
[6] International Law 221 7
221 International Law
221k7 k. Extraterritorial Rights and Jurisdiction. Most Cited Cases
Courts will not blind themselves to potential violations of international law where legislative intent is ambiguous.
[7] Criminal Law 110 98
110 Criminal Law
110VIII Jurisdiction
110k98 k. Jurisdiction of the Person. Most Cited Cases
Defendant who was arrested outside United States for hostage taking and other charges was subject to indictment under Antihijacking Act after he was brought to United States on those charges. Federal Aviation Act of 1958, §§ 101, 902(n), 49 U.S.C.A.App. §§ 1301, 1472(n).
[8] Criminal Law 110 93
110 Criminal Law
110VIII Jurisdiction
110k91 Jurisdiction of Offense
110k93 k. Nature or Grade of Offense. Most Cited Cases
International Law 221 7
221 International Law
221k7 k. Extraterritorial Rights and Jurisdiction. Most Cited Cases
International law did not restrict jurisdiction under Antihijacking Act to try defendant in United States on charges of air piracy, regardless of hijacking's status vel non as universal crime. Federal Aviation Act of 1958, § 902(n), 49 U.S.C.A.App. § 1472(n).
[9] Criminal Law 110 99
110 Criminal Law
110VIII Jurisdiction
110k99 k. Mode of Acquiring Jurisdiction. Most Cited Cases
Government's conduct in luring defendant onto yacht, than arresting him after yacht sailed onto international waters, together with Government's treatment of defendant following his arrest, did not require district court to decline to exercise jurisdiction over aircraft piracy and hostage taking charges arising from defendant's hijacking of passenger aircraft. Federal Aviation Act of 1958, § 902(n), 49 U.S.C.A.App. § 1472(n); 18 U.S.C.A. § 1203.
[10] Armed Services 34 3(2)
34 Armed Services
34I In General
34k3 Relation of Military to Civil Authority
34k3(2) k. Posse Comitatus. Most Cited Cases
(Formerly 34k3)
Posse Comitatus Act's prohibition against use of Army or Air Force in law enforcement did not extend to Navy. 18 U.S.C.A. § 1385.
[11] Armed Services 34 3(2)
34 Armed Services
34I In General
34k3 Relation of Military to Civil Authority
34k3(2) k. Posse Comitatus. Most Cited Cases
(Formerly 34k3)
Navy did not violate regulations requiring it to comply with restrictions of Posse Comitatus Act when it housed, transported and cared for defendant while he was in custody of Federal Bureau of Investigation (FBI) outside of the United States. 18 U.S.C.A. § 1385; 10 U.S.C.A. § 375.
[12] Criminal Law 110 627.5(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident to Trial
110k627.5(6) k. Work Product or Other Privileged Information. Most Cited Cases
Pretrial discovery provisions of the Classified Information Procedures Act did not infringe upon procedural protections guaranteed defendant by the Fifth and Sixth Amendments. U.S.C.A. Const.Amends. 5, 6; Classified Information Procedures Act, § 1 et seq., 18 U.S.C.A.App.
[13] Criminal Law 110 627.5(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident to Trial
110k627.5(6) k. Work Product or Other Privileged Information. Most Cited Cases
District court properly declined to order Government to release classified information regarding conversations between hijacked airplane and control tower in response to defendant's discovery request in prosecution for air piracy and hostage taking; information within scope of request would not have helped defendant at trial, and government had colorable interest in avoiding release of information that would have revealed its ability to intercept such conversations. Classified Information Procedures Act, § 1 et seq., 18 U.S.C.A.App.
[14] Criminal Law 110 627.5(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident to Trial
110k627.5(6) k. Work Product or Other Privileged Information. Most Cited Cases
To prevail on discovery request for classified information under Classified Information Procedures Act, defendant must make threshold showing that requested material is relevant to his or her case. Classified Information Procedures Act, § 1 et seq., 18 U.S.C.A.App.
[15] Criminal Law 110 627.5(6)
110 Criminal Law
110XX Trial
110XX(A) Preliminary Proceedings
110k627.5 Discovery Prior to and Incident to Trial
110k627.5(6) k. Work Product or Other Privileged Information. Most Cited Cases
If Government has asserted colorable claim to privilege with regard to request for classified information under Classified Information Procedures Act, defendant must show that information would be helpful to his or her defense. Classified Information Procedures Act, § 1 et seq., 18 U.S.C.A.App.
[16] Criminal Law 110 1134(3)
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1134 Scope and Extent in General
110k1134(3) k. Questions Considered in General. Most Cited Cases
Criminal Law 110 1152(1)
110 Criminal Law
110XXIV Review
110XXIV(N) Discretion of Lower Court
110k1152 Conduct of Trial in General
110k1152(1) k. In General. Most Cited Cases
Appellate judges ought not substitute their prejudices regarding jury instructions or their notions of apt phraseology for experience of trial judges in such matters; Court of Appeals' more limited responsibility is to insure that law is correctly stated for jurors to apply.
[17] Criminal Law 110 1172.1(1)
110 Criminal Law
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1172 Instructions
110k1172.1 In General
110k1172.1(1) k. Instructions in General. Most Cited Cases
Where indispensable prerequisites for fair trial have been afforded, Court of Appeals will not overturn conviction just because awkward word was used in instructing jury, or even because Court would have sustained defense objection that was overruled; instead, Court of Appeals looks at entire record of proceedings below and ignores errors that do not undermine confidence in conviction when viewed in light of all that took place. U.S.C.A. Const.Amend. 6.
[18] Aviation 48B 16
48B Aviation
48BI Control and Regulation in General
48BI(A) In General
48Bk16 k. Offenses. Most Cited Cases
Conviction under Antihijacking Act did not require showing that defendant acted with specific intent. Federal Aviation Act of 1958, § 902(n), 49 U.S.C.A.App. § 1472(n).
[19] Kidnapping 231E 16
231E Kidnapping
231Ek14 Elements
231Ek16 k. Intent. Most Cited Cases
(Formerly 232k1)
Conviction under Hostage Taking Act did not require showing that defendant acted with specific intent. 18 U.S.C.A. § 1203(a).
[20] Conspiracy 91 48.2(1)
91 Conspiracy
91II Criminal Responsibility
91II(B) Prosecution
91k48 Trial
91k48.2 Instructions
91k48.2(1) k. In General. Most Cited Cases
Trial court sufficiently instructed jury that specific intent was necessary element of crime to conspiracy, where jury received instruction that Government was required to show beyond reasonable doubt that conspiracy was knowingly formed and that defendant willfully participated in unlawful plan with intent to advance or further some object or purpose of conspiracy.
[21] Criminal Law 110 789(4)
110 Criminal Law
110XX Trial
110XX(G) Instructions: Necessity, Requisites, and Sufficiency
110k789 Reasonable Doubt
110k789(4) k. Sufficiency of Instructions as to Proof Beyond Reasonable Doubt. Most Cited Cases
Instruction on criminal intent sufficiently articulated Government's burden of proving intent in prosecution for hijacking, hostage taking and conspiracy, where instructions indicated that Government had burden of proving requisite intent beyond reasonable doubt. Federal Aviation Act of 1958, § 9021(i, n), 49 U.S.C.A.App. § 1472(i, n); 18 U.S.C.A. §§ 1203, 1203(a); Fed.Rules Cr.Proc.Rule 52, 18 U.S.C.A.
[22] Criminal Law 110 31
110 Criminal Law
110II Defenses in General
110k31 k. Defenses in General. Most Cited Cases
In determining whether defendant charged with hijacking and hostage taking could be treated as a soldier for purposes of his obedience to military orders defense, jury could properly consider whether organization to which defendant allegedly belonged regularly wore uniforms. Federal Aviation Act of 1958, § 902(n), 49 U.S.C.A.App. § 1472(n); 18 U.S.C.A. § 1203.
[23] Criminal Law 110 822(4)
110 Criminal Law
110XX Trial
110XX(G) Instructions: Necessity, Requisites, and Sufficiency
110k822 Construction and Effect of Charge as a Whole
110k822(4) k. Invasion of Province of Jury. Most Cited Cases
Jury instruction on defendant's obedience to military orders defense, given in prosecution for air piracy and hijacking, did not improperly direct jury to conclude that defense was unavailable to defendant because no organization could have given instruction to hijack airline without violating laws and customs of war; jury was also charged that it was responsible for determining whether organization to which defendant allegedly belonged was a military organization and that they were to determine whether defendant knew whether his orders were illegal. Federal Aviation Act of 1958, § 902(n), 49 U.S.C.A.App. § 1472(n); 18 U.S.C.A. § 1203.
*1088**131 Appeal from the United States District Court for the District of Columbia (Criminal No. 87-00377).
Francis D. Carter, Washington, D.C. (appointed by the court), for appellant.
John F. De Pue, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and Jennifer E. Levy, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.
Before MIKVA, Chief Judge, WALD and RUTH BADER GINSBERG, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
MIKVA, Chief Judge:
Appellant Fawaz Yunis challenges his convictions on conspiracy, aircraft piracy, and hostage-taking charges stemming from the hijacking of a Jordanian passenger aircraft*1089**132 in Beirut, Lebanon. He appeals from orders of the district court denying his pretrial motions relating to jurisdiction, illegal arrest, alleged violations of the Posse Comitatus Act, and the government's withholding of classified documents during discovery. Yunis also challenges the district court's jury instructions as erroneous and prejudicial.
Although this appeal raises novel issues of domestic and international law, we reject Yunis' objections and affirm the convictions.
I. BACKGROUND
On June 11, 1985, appellant and four other men boarded Royal Jordanian Airlines Flight 402 (“Flight 402”) shortly before its scheduled departure from Beirut, Lebanon. They wore civilian clothes and carried military assault rifles, ammunition bandoleers, and hand grenades. Appellant took control of the cockpit and forced the pilot to take off immediately. The remaining hijackers tied up Jordanian air marshals assigned to the flight and held the civilian passengers, including two American citizens, captive in their seats. The hijackers explained to the crew and passengers that they wanted the plane to fly to Tunis, where a conference of the Arab League was under way. The hijackers further explained that they wanted a meeting with delegates to the conference and that their ultimate goal was removal of all Palestinians from Lebanon.
After a refueling stop in Cyprus, the airplane headed for Tunis but turned away when authorities blocked the airport runway. Following a refueling stop at Palermo, Sicily, another attempt to land in Tunis, and a second stop in Cyprus, the plane returned to Beirut, where more hijackers came aboard. These reinforcements included an official of Lebanon's Amal Militia, the group at whose direction Yunis claims he acted. The plane then took off for Syria, but was turned away and went back to Beirut. There, the hijackers released the passengers, held a press conference reiterating their demand that Palestinians leave Lebanon, blew up the plane, and fled from the airport.
An American investigation identified Yunis as the probable leader of the hijackers and prompted U.S. civilian and military agencies, led by the Federal Bureau of Investigation (FBI), to plan Yunis' arrest. After obtaining an arrest warrant, the FBI put “Operation Goldenrod” into effect in September 1987. Undercover FBI agents lured Yunis onto a yacht in the eastern Mediterranean Sea with promises of a drug deal, and arrested him once the vessel entered international waters. The agents transferred Yunis to a United States Navy munitions ship and interrogated him for several days as the vessel steamed toward a second rendezvous, this time with a Navy aircraft carrier. Yunis was flown to Andrews Air Force Base from the aircraft carrier, and taken from there to Washington, D.C. In Washington, Yunis was arraigned on an original indictment charging him with conspiracy, hostage taking, and aircraft damage. A grand jury subsequently returned a superseding indictment adding additional aircraft damage counts and a charge of air piracy.
Yunis filed several pretrial motions, among them a motion to suppress statements he made while aboard the munitions ship. In United States v. Yunis (Yunis I), 859 F.2d 953 (D.C.Cir.1988), this court reversed a district court order suppressing the statements, and authorized their introduction at trial. We revisited the case on a second interlocutory appeal relating to discovery of classified information, reversing the district court's disclosure order. United States v. Yunis (Yunis II), 867 F.2d 617 (D.C.Cir.1989).
Yunis admitted participation in the hijacking at trial but denied parts of the government's account and offered the affirmative defense of obedience to military orders, asserting that he acted on instructions given by his superiors in Lebanon's Amal Militia. The jury convicted Yunis of conspiracy, 18 U.S.C. § 371 (1988), hostage taking, 18 U.S.C. § 1203 (1988), and air piracy, 49 U.S.C. App. § 1472(n) (1988). However, it acquitted him of three other *1090**133 charged offenses that went to trial: violence against people on board an aircraft, 18 U.S.C. § 32(b)(1) (1988), aircraft damage, 18 U.S.C. § 32(b)(2) (1988), and placing a destructive device aboard an aircraft, 18 U.S.C. § 32(b)(3) (1988). The district court imposed concurrent sentences of five years for conspiracy, thirty years for hostage taking, and twenty years for air piracy. Yunis appeals his conviction and seeks dismissal of the indictment.
II. ANALYSIS
Yunis argues that the district court lacked subject matter and personal jurisdiction to try him on the charges of which he was convicted, that the indictment should have been dismissed because the government seized him in violation of the Posse Comitatus Act and withheld classified materials useful to his defense, and that the convictions should be reversed because of errors in the jury instructions. We consider these claims in turn.
A. Jurisdictional Claims
Yunis appeals first of all from the district court's denial of his motion to dismiss for lack of subject matter and personal jurisdiction. See United States v. Yunis, 681 F.Supp. 896 (D.D.C.1988). Appellant's principal claim is that, as a matter of domestic law, the federal hostage taking and air piracy statutes do not authorize assertion of federal jurisdiction over him. Yunis also suggests that a contrary construction of these statutes would conflict with established principles of international law, and so should be avoided by this court. Finally, appellant claims that the district court lacked personal jurisdiction because he was seized in violation of American law.
1. Hostage Taking Act
[1] The Hostage Taking Act provides, in relevant part:
(a) [W]hoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or to abstain from any act ... shall be punished by imprisonment by any term of years or for life.
(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless-
(A) the offender or the person seized or detained is a national of the United States;
(B) the offender is found in the United States; or
(C) the governmental organization sought to be compelled is the Government of the United States.
18 U.S.C. § 1203. Yunis claims that this statute cannot apply to an individual who is brought to the United States by force, since those convicted under it must be “found in the United States.” But this ignores the law's plain language. Subsections (A), (B), and (C) of section 1203(b)(1) offer independent bases for jurisdiction where “the offense occurred outside the United States.” Since two of the passengers on Flight 402 were U.S. citizens, section 1203(b)(1)(A), authorizing assertion of U.S. jurisdiction where “the offender or the person seized or detained is a national of the United States,” is satisfied. The statute's jurisdictional requirement has been met regardless of whether or not Yunis was “found” within the United States under section 1203(b)(1)(B).