UNITED STATES of America, Plaintiff-Appellee, v. Edgar Javier Bello MURILLO, a/k/a Payaso, Defendant-Appellant.
No. 15-4235
United States Court of Appeals, Fourth Circuit.
Decided: June 14, 2016
824 F.3d 152
Argued: January 28, 2016. See also 57 F.Supp.3d 618.
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.
KING, Circuit Judge:
Defendant Edgar Javier Bello Murillo appeals his convictions in the Eastern District of Virginia arising from the murder in South America of Special Agent James Terry Watson of the Drug Enforcement Administration (the “DEA“). At the time of his death, Agent Watson—as an Assistant Attache for the United States Mission in Colombia—was an internationally protected person (an “IPP“). Bello, a citizen of Colombia, has not contested his involvement in crimes against Watson. Indeed, Bello pleaded guilty to offenses of kidnapping conspiracy and murder of an IPP. He
I.
A.
Agent Watson began serving the DEA in the year 2000, having previously worked as a Sheriff‘s Deputy in Louisiana and as a Deputy United States Marshal in Mississippi.1 In July 2010, the DEA assigned Watson to its field office in Cartagena, Colombia. That same month, Watson was accredited by the United States and Colombia as an Assistant Attache for the United States Mission in Colombia. By virtue of his diplomatic status, Watson became an IPP and was thereby protected by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (the “IPP Convention,” or the “Convention“), opened for signature Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167.2
Bello drove a taxicab in Bogota, Colombia, where he conspired with other taxi drivers to mug and rob wealthy passengers through “paseo millionario” (“millionaire‘s ride“) armed robberies. The conspirators would execute their robbery schemes through a series of choreographed maneuvers. First, one taxi driver would pick up an affluent-looking customer and then signal to the others. Next, another taxicab containing additional conspirators would pull in behind the first. Armed with weapons such as tasers and knives, the conspirators from the second taxicab would enter the first and rob its passenger. The assailants would demand from the victim his cash, valuables, credit cards, and personal-identification numbers for bank accounts. Typically, another conspirator—in yet a third taxicab—would support the robbery efforts by blocking traffic, acting as a lookout, or using the victim‘s bank cards to withdraw cash.
On or about June 20, 2013, a taxicab operated by one of Bello‘s coconspirators picked up Agent Watson in Bogota. Carrying a knife, Bello rode in a second taxicab with his codefendant Edwin Gerardo Figueroa Sepulveda. After travelling a short distance with Agent Watson, the driver of the first taxicab pretended that his vehicle was experiencing mechanical problems and stopped, allowing the second taxicab to pull in behind. Bello and Figueroa Sepulveda then exited the second taxicab and entered the first to rob Watson. Inside, Figueroa Sepulveda tased Watson, and Bello stabbed the American diplomat at least four times. Watson ultimately escaped from his assailants, but he later died from the stab wounds. Within a few days, Bello was arrested in Colombia.
B.
1.
On July 18, 2013, the federal grand jury in Alexandria, Virginia, returned an indictment against six defendants, including Bello and lead defendant Figueroa Sepulveda, for their involvement in Agent Watson‘s murder. In pertinent part, the indictment charged Bello with four offenses: murder
On August 22, 2013, the United States requested Bello‘s extradition from Colombia for prosecution in the Eastern District of Virginia. Pursuant to Colombia‘s obligations under the IPP Convention, the Colombian Minister of Justice and Law referred the extradition request to Colombia‘s Supreme Court of Justice. On April 2, 2014, that court ruled that Bello could be extradited to the United States for prosecution on Counts 1, 3, and 4—the alleged offenses against an IPP—but not on Count 2.
Thereafter, by an executive resolution of June 18, 2014, the Colombian Minister of Justice and Law—acting on behalf of the President of Colombia—ordered Bello‘s extradition to the United States for prosecution on Counts 1, 3, and 4, and denied the extradition request as to Count 2. In so ruling, the Minister relied on the Colombian court decision, observing that “the crime must be considered as committed not only in the place where the events physically happened but also in the territory of the United States of America,” which “has the right to claim jurisdiction to investigate and try the conduct that affected its key interests.” See United States v. Figueroa Sepulveda, No. 1:13-cr-00310 (E.D. Va. Feb. 18, 2015), ECF No. 292-1, at 29-30 (internal quotation marks and footnote omitted).3 Bello was thereafter extradited to this country and first appeared in the Eastern District of Virginia on July 2, 2014. Two weeks later, the district court dismissed Count 2 as to him.
2.
Invoking the “notice requirement” of the
As explained in its opinion of November 6, 2014, which relied primarily on our recent decision in United States v. Brehm, 691 F.3d 547 (4th Cir. 2012), the district court denied the dismissal motion. See United States v. Figuero Sepulveda, 57 F.Supp.3d 618 (E.D. Va. 2014). In so doing, the court ruled that Bello‘s “due process rights are not violated by prosecuting him in the United States for the murder and kidnapping of [Agent Watson] because exercising extraterritorial jurisdiction for these offenses is proper under the Fourth Circuit‘s test set forth in Brehm.” Id. at 620. Applying the Brehm test, the court
3.
In December 2014, pursuant to
On April 16, 2015, the district court sentenced Bello to concurrent sentences of 440 months in prison on Counts 1 and 3.
Bello timely noted this appeal, and we possess jurisdiction pursuant to
II.
Bello‘s sole claim on appeal is that his prosecution in the United States contravened the
A.
The Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law.” See
Bello‘s due process claim thus rests solely on the premise that his prosecution in this country was fundamentally unfair, because he did not know that Agent Watson was an American IPP and thus could not have foreseen being haled into a United States court for the offenses he committed in Colombia. We explained in Brehm, however, that “[f]air warning does not require that the defendants understand that they could 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.” See 691 F.3d at 554 (quoting United States v. Al Kassar, 660 F.3d 108, 119 (2d Cir. 2011)); see also United States v. Ali, 718 F.3d 929, 944 (D.C. Cir. 2013) (“What appears to be the animating principle governing the due process limits of extraterritorial jurisdiction is the idea that ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.‘” (quoting Bouie v. City of Columbia, 378 U.S. 347, 351 (1964))).
Simply put, a defendant is “not ensnared by a trap laid for the unwary” when he has engaged in conduct that “is self-evidently criminal.” See Brehm, 691 F.3d at 554 (quoting Al Kassar, 660 F.3d at 119). Because kidnapping and murder are “self-evidently criminal,” it was not fundamentally unfair to prosecute Bello in the United States. Accord Brehm, 691 F.3d at 554 (concluding that prosecution in United States was not fundamentally unfair where South African defendant working for American contractor stabbed British victim at NATO-operated military base in Afghanistan); Al Kassar, 660 F.3d at 119 (same where foreign defendants supplied weapons to known terrorist organization overseas for use against U.S. citizens and property). Absent fundamental unfairness, Bello‘s Fifth Amendment due process claim fails under Brehm.
B.
Brehm also supports the proposition that the IPP Convention alone gave Bello notice sufficient to satisfy due process. In Brehm, the South African defendant was prosecuted in this country for stabbing his British victim at Kandahar Airfield, where the heavy American presence was regulated in part by a written agreement in which the Afghan government authorized ours “to exercise its criminal jurisdiction over the personnel of the United States.” See 691 F.3d at 553 (internal quotation marks omitted). Moreover, Brehm had signed an agreement with the American military contractor that employed him acknowledging the United States’ criminal jurisdiction. See id. at 549. We concluded that Brehm should have reasonably understood that he was subject to prosecution somewhere for the stabbing, “all the more so in light of the relevant provisions of his employment contract.” See id. at 554. That is, not only was Brehm‘s conduct “self-evidently crimi-
Along similar lines, the D.C. Circuit has recognized that “a treaty may provide notice sufficient to satisfy due process.” See Ali, 718 F.3d at 945. More specifically, the court of appeals articulated that, when a treaty provides “global notice that certain generally condemned acts are subject to prosecution by any party to the treaty,” the Fifth Amendment “demands no more.” Id. at 944 (citing with approval United States v. Shi, 525 F.3d 709 (9th Cir. 2008)).
Relevant to Bello‘s prosecution in the United States, the IPP Convention provides that each signatory nation, or “State Party,” must criminalize particular acts committed against an IPP, including kidnapping and murder. See IPP Convention, art. III, opened for signature Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167. The Convention requires each State Party to “take such measures as may be necessary to establish its jurisdiction over [those] crimes,” when “committed in the territory of that State” or when “committed against an [IPP] who enjoys his status as such by virtue of functions which he exercises on behalf of that State.” Id. at art. III, ¶ 1. According to the Convention, the instrument itself may serve “as the legal basis for extradition” between two State Parties. Id. at art. VIII, ¶ 2. The Convention also specifies that the crimes of kidnapping and murdering an IPP “shall be treated, for the purpose of extradition between State Parties, as if [they] had been committed not only in the place in which [they] occurred but also in the territories of the States required to establish their jurisdiction.” Id. at art. VIII, ¶ 4.
The foregoing provisions of the IPP Convention give global notice that Colombia, as a State Party to the Convention, must establish jurisdiction over any kidnapping or murder of an IPP committed in its territory. Meanwhile, other State Parties (including the United States) must establish jurisdiction over the kidnappings and murders of their IPPs, wherever those crimes occur. When an IPP has been kidnapped or murdered in Colombia and the Colombian authorities have apprehended the alleged offender, the Convention affords Colombia the option of prosecuting him or extraditing him to the country that accorded the victim his IPP status. As suggested in Brehm and supported by decisions of our sister circuits, including Ali and Shi, that global notice alone is sufficient to quell any concern that Bello‘s prosecution in the United States for his crimes against Agent Watson contravened due process.
C.
Finally, we reject Bello‘s contention that because the United States Code provisions implementing the IPP Convention require knowledge of the victim‘s IPP status that Bello did not possess, those provisions cannot have put him on notice that he was subject to prosecution in this country. See Reply Br. of Appellant 5 (“The fact that the statutes were never intended to reach Appellant‘s conduct informs the fact that he could not infer from the statutes that they could impact his conduct.“). That argument fails at its start, in that the mens rea requirements of
As the Supreme Court recently explained, courts generally “interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every element of an offense.” See Luna Torres v. Lynch, 136 S. Ct. 1619, 1630 (2016) (relying on Elonis v. United States, 135 S.Ct. 2001, 2009-10 (2015)). Not so, however, with respect to jurisdictional elements. Id. at 1631. That is, “when Congress has said nothing about the mental state pertaining to a jurisdictional element, the default rule flips: Courts assume that Congress wanted such an element to stand outside the otherwise applicable mens rea requirement.” Id.; see United States v. Cooper, 482 F.3d 658, 664 (4th Cir. 2007) (observing that “mens rea requirements typically do not extend to the jurisdictional elements of a crime“). Our review of §§ 1116(a) and 1201(a)(4) confirms that they are statutes where “the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal.” See United States v. Feola, 420 U.S. 671, 676 n.9 (1975).5
1.
Section 1116(a) of Title 18, the statute underlying Count 1, provides that “[w]hoever kills or attempts to kill . . . [an IPP] shall be punished as provided under sections 1111, 1112, and 1113 of [Title 18].” Notably, § 1116(a) does not define “kill” or “attempt.” Instead, those terms derive their meaning from §§ 1111, 1112, and 1113, which spell out the elements of the offenses of murder, manslaughter, and attempted murder or manslaughter, respectively, when committed “[w]ithin the special maritime and territorial jurisdiction of the United States.” Section 1111, for example, specifies that “[m]urder is the unlawful killing of a human being with malice aforethought,” and it distinguishes first-from second-degree murder. In other words, § 1111 identifies the substantive elements of murder, including the mental state required to commit that offense. See United States v. Ashford, 718 F.3d 377, 384 (4th Cir. 2013) (explaining that first-degree murder under § 1111 requires “premeditation,” while second-degree murder requires simply “malice aforethought” (internal quotation marks omitted)).
Read in concert with § 1111, § 1116 confers jurisdiction over the murder of an IPP, including that of an American IPP in another country. See
Bello was charged in Count 3 with the conspiracy offense defined in
Unlike § 1116(a), which cross-references and draws on other sections of Title 18, § 1201(a) spells out the “essential elements” of the substantive kidnapping offense, that is, “an unlawful seizure and holding” of another person. See United States v. Lewis, 662 F.2d 1087, 1088 (4th Cir. 1981). Satisfying the elements of § 1201(a), we have observed, “necessarily implies an unlawful physical or mental restraint for an appreciable period against the person‘s will and with a willful intent so to confine the victim.” See United States v. Lentz, 383 F.3d 191, 201 (4th Cir. 2004) (emphasis and internal quotation marks omitted). In other words, the elements of the kidnapping offense include a mens rea requirement. Those elements do not, however, require a perpetrator to know the circumstances that bring a kidnapping offense within the purview of the federal courts, such as whether the victim was an IPP.
Assessing the kidnapping statute as a whole confirms that the IPP provision—codified in
As with
Pursuant to the foregoing, the judgment of the district court is affirmed.
AFFIRMED