Monday, October 10th, 2011

A Bridge To FARC

United States v. al Kassar, No. 09-1051-cr (2d Cir. September 21, 2011) (Jacobs, Hall, CJJ, Scheindlin, DJ)

Defendants were convicted of various terrorism offenses in connection with a sting operation in which a CI, who was working for the DEA, introduced al Kassar to two undercover DEA agents posing as members of FARC, the left-wing Colombian guerrilla group. The defendants agreed to supply FARC with weapons, including surface to air missiles (“SAM”s) to use against United States military personnel and equipment in Colombia.

All of the criminal conduct occurred outside of the United States – mostly in Lebanon, Spain, Bulgaria and Romania. The district court denied the defendants’ motions to dismiss the indictment on jurisdictional grounds, and in this opinion, the circuit affirmed.

There is a presumption that acts of Congress do not apply extraterritorially, but even if the statute is not explicit, an intent can be inferred from the nature of the offense. Here, four of the five statutes of conviction contain explicit provisions applying them extraterritorially. The fifth, conspiracy to kill U.S. officers of employees under 18 U.S.C. §§ 1114, 1117 does not, but the nature of the offense – “protecting U.S. personnel from harm when acting in their official capacity” – implies an intent that it apply outside of the United States.

Even so, due process limits the extraterritorial reach of federal statutes. “There must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair.” For non-citizens acting entirely abroad, a jurisdictional nexus exists when the “aim of that activity is to cause harm inside the United States or to U.S. citizens or interests.”

Here, the nexus existed because the defendants’ stated aim was to “sell arms to FARC with the understanding that they would be used to kill Americans and destroy U.S. property.” Nor did it matter here that this case involved a sting operation taking place entirely outside of the United States and involving only foreign citizens. Since the goal of activity was to harm U.S. citizens or interests, or threaten the security or government functions of the United States, there is a sufficient jurisdictional nexus. And the goal alone is enough. It does not matter that the defendants never came close to harming any U.S. interest. Jurisdiction is determined by the “aims of the conspiracy, not its effects.”

The circuit also rejected the defendants’ “fair warning” argument. “Fair warning does not require that the defendants understand that they would be subject to criminal prosecution in the United States, so long as they would reasonably understand that their conduct was criminal and would subject them to prosecution somewhere.”

Finally, the circuit rejected the defendants’ claim of “manufactured jurisdiction.” Manufactured jurisdiction is a collection of three distinct defense theories: outrageous government conduct, entrapment, and a failure by the prosecution to prove an essential element of the crime.

None of those theories applies here. As to outrageous government conduct – also raised as an independent appellate claim – the DEA’s pervasive involvement in the weapons deal did not violate due process. There was no coercion, intimidation or physical force by the DEA agents. And the absence of a conspiracy prior to the government’s involvement merely shows that the government created the “opportunity for illegal conduct.” The tactics used were neither coercive nor outrageous – they were simply the “commonplace and often necessary tactics for infiltrating criminal enterprises.” Thus, while this was an “elaborate and prolonged” sting operation, “nothing done was outrageous or a shock to the conscience.”

Nor were the defendant’s entrapped “as a matter of law,” since they clearly had a predisposition. They already knew how to procure and smuggle arms, and reacted positively to the idea that the arms would be used to kill Americans.

Finally, the “unproved-element” theory is satisfied if the government “supplies an essential element of a crime”; “in effect,” the government has failed to prove it. But even if the government “initiates” an element of the crime, jurisdiction is not manufactured where the defendant “takes voluntary actions that implicate” it.” Here, every element of the crimes of conviction was established by voluntary action by the defendants. And the DEA agents did not create the jurisdictional nexus by “injecting the notion that the weapons were going to FARC for use against Americans.” That the DEA agents “lied to the defendants” does not make the nexus artificial or invalid.

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