United States v. Edgar Bello Murillo
2016 U.S. App. LEXIS 10754
4th Cir.2016Background
- DEA Special Agent James Terry Watson, accredited as an Assistant Attaché to the U.S. Mission in Colombia (an internationally protected person, IPP), was attacked in Bogotá during a coordinated taxi robbery scheme; Watson died from stab wounds and Edgar Javier Bello Murillo was arrested in Colombia.
- A U.S. federal grand jury indicted Bello in the Eastern District of Virginia on charges including murder of an IPP (18 U.S.C. § 1116) and conspiracy to kidnap an IPP (18 U.S.C. § 1201(c)); one count (murder of a U.S. officer) was dismissed pre-extradition.
- Colombia reviewed the U.S. extradition request under the IPP Convention and authorized extradition to the United States for the IPP-related counts (but not the dismissed count); Bello was extradited and appeared in federal court.
- Bello moved to dismiss the extradited charges, arguing U.S. prosecution violated the Fifth Amendment notice requirement because he lacked notice he could be tried in the U.S. for conduct committed in Colombia (he argued he did not know the victim’s U.S./IPP status).
- The district court denied dismissal relying on this circuit’s extraterritorial due-process framework from United States v. Brehm and held prosecution was not arbitrary and not fundamentally unfair; Bello pleaded guilty to Counts 1 and 3 conditionally, reserving the right to appeal the due-process ruling.
- The Fourth Circuit affirmed: (1) extraterritorial prosecution here did not violate due process because the conduct was "self-evidently criminal," and (2) the IPP Convention and the statutory structure make the victim’s IPP status a jurisdictional element that need not be known to the defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extradition and prosecution in U.S. courts for crimes committed abroad violated the Fifth Amendment notice requirement | Bello: prosecuting him in U.S. violated due process because he lacked notice he could be tried here for crimes in Colombia (he did not know victim was U.S. IPP) | Government: U.S. has significant interest in protecting its diplomats; defendant had adequate notice because conduct (murder/kidnapping) was plainly criminal and treaty/statutory framework provided global notice | Court: Affirmed — prosecution neither arbitrary nor fundamentally unfair; due process satisfied |
| Whether fair warning requires knowledge that victim was an IPP or that U.S. courts could try him | Bello: fair warning requires knowing victim’s U.S./IPP status to foresee U.S. prosecution | Government: fair warning requires only that defendant reasonably understand conduct is criminal and punishable somewhere; jurisdictional facts need not be known | Court: Held fair warning does not require knowing victim’s IPP status; ‘‘self-evidently criminal’’ acts suffice |
| Whether the IPP Convention supplied sufficient notice of U.S. jurisdiction | Bello: treaty alone insufficient to put him on notice of U.S. prosecution | Government: Convention gives global notice that States Parties must criminalize and may exercise jurisdiction or extradite perpetrators | Court: Held Convention provides global notice adequate for due process |
| Whether statutes implementing the IPP Convention require mens rea as to the victim’s IPP status | Bello: statutory mens rea requires knowledge of victim’s IPP status, so he lacked requisite mental state | Government: the victim’s IPP status is a jurisdictional element; substantive mens rea is limited to murder/kidnapping intent, not awareness of IPP status | Court: Held IPP status is jurisdictional and need not be in defendant’s mind; statutes do not impose additional mens rea for IPP status |
Key Cases Cited
- United States v. Brehm, 691 F.3d 547 (4th Cir.) (extraterritorial prosecution due-process framework; "self-evidently criminal" test)
- United States v. Al Kassar, 660 F.3d 108 (2d Cir.) (fair-warning principle for extraterritorial jurisdiction)
- United States v. Ali, 718 F.3d 929 (D.C. Cir.) (a treaty may provide notice sufficient for due process)
- United States v. Shi, 525 F.3d 709 (9th Cir.) (treaty-based global notice supports extraterritorial prosecution)
- United States v. Yousef, 327 F.3d 56 (2d Cir.) (sufficient nexus test for extraterritorial due-process inquiry)
- United States v. Davis, 905 F.2d 245 (9th Cir.) (nexus/arbitrary-or-unfair framework)
- Luna Torres v. Lynch, 136 S. Ct. 1619 (2016) (jurisdictional elements generally fall outside default mens rea requirements)
- United States v. Feola, 420 U.S. 671 (1975) (jurisdictional elements need not be in defendant's mind for substantive mens rea)