United States v. PassaroUnited States v. Passaro
OPINION
This case arises from the conviction in a United States federal court of an American citizen for the brutal assault on an Afghan national in Afghanistan. A jury in the
Passaro asserts that American courts lack subject matter jurisdiction over assaults in Asadabad. He further maintains that his prosecution offends separation-of-powers principles and arises from statutes unconstitutionally vague as applied to him. Finally, Passaro challenges certain evidentiary, jury instruction, and sentencing rulings of the district court.
This case presents novel questions concerning the reach of fеderal criminal law to acts that an American civilian commits abroad while in service to this Country. After careful consideration, we reject all of Passaro’s challenges to his conviction. We conclude, however, as Passaro and the Government both argue, that the district court erred in sentencing him. Accordingly, we affirm Passaro’s conviction but vacate his sentence and remand for resentencing.
I.
After the September 11, 2001, terrorist attacks, the United States conducted a military operation in Afghanistan in an effort to topple the Taliban regime. Sometime in late 2001, as part of this effort, American and coalition military troops forcibly obtained control of the Asadabad Firebase in north-east Afghanistan.
A thick, ten-foot-high mud wall surrounds Asadabad, which is an old fortress thаt covers approximately 25 acres. By May 2003, when Passaro arrived at Asadabad, the fortress contained approximately a dozen useable buildings, which coalition forces employed as offices, living quarters, and detention facilities. In addition, the United States Army had installed electricity and was in the process of providing fresh well water in Asadabad.
Coalition forces conducted military and intelligence operations from Asadabad and used the base to train Afghan militia personnel. At any one time, the United States stationed about 200 military personnel at the firebase, along with a number of paramilitary civilian contractors.
Passaro, a former Army special forces medic, arrived at Asadabad in May 2003 as part of this contingent of paramilitary con-' tractors. At about the same time, military commanders had become concerned with rocket attacks on Asadabad, which occurred on a regular basis. The United States began to suspect that a local Afghan named Abdul Wali orchestrated the rocket attacks, and the military formulated a plan to capture Wali for questioning.
Before American forces could execute this plan, however, Wali voluntarily surrendered himself for questioning on June 18, 2003. After some initial interviews, American commanders at Asadabad decided to detain Wali. They imprisoned him in a detention cell, shackling his legs, binding his wrists together, and placing a hood over his head. The military placed him under 24-hour, two-person, armed guard.
Sometime on the evening of the next day, June 19, the CIA commander at Asadabаd authorized Passaro to interrogate Wali. It is undisputed that for the next two days, Passaro “interrogated” Wali. This “interrogation” involved Passaro’s brutal attacks on Wali, which included repeatedly throwing Wali to the ground, striking him open handed, hitting him on the arms and legs with a heavy, Maglite-type flashlight measuring over a foot long, and, while wearing combat boots, kicking Wali in the groin with enough force to lift him off the ground.
The next month, Passaro returned to North Carolina. A year later, a federal grand jury indicted him on two counts of assault with a dangerous weapon with intent to do bodily harm in violation of
At trial, the translator present at the “interrogations” and the personnel charged with guarding Wali during them described in detail Passaro’s brutal “interrogation” methods. Numerous witnesses, including Passaro’s CIA supervisors, testified that no CIA official had encouraged or authorized Passaro’s “interrogation” methods.
After an eight-day trial, the jury convicted Passaro of one count of felony assault resulting in serious bodily injury and three counts of the lesser-included offense of misdemeanor simple assault. The district court sentenced Passaro to a 100-month term of imprisonment, applying a number of sentеncing enhancements and an upward departure to reach that result. Passaro noted a timely appeal challenging both the convictions and the sentence; the Government filed a cross-appeal as to the sentence.
II.
Most fundamentally, Passaro challenges our subject matter jurisdiction over the crimes alleged against him. The Government predicated federal criminal jurisdiction in this case on the special maritime and territorial jurisdiction statute.
See
In 2001, ■ Congress added an additional subsection to the special maritime and territorial jurisdiction statute.
See
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub.L. No. 107-56, § 804, 115 Stat. 272, 377 (codified at
the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership....
A.
When interpreting any statute, we must first and foremost strivе to implement congressional intent by examining the plain language of the statute.
Barnhart v. Sigmon Coal Co.,
In determining the jurisdictional reach of
We believe this construction inadequate for several reasons. First, it ignores the fact that “mission” can also refer to “a
permanent
embassy or legation in a foreign country.” Webster’s,
supra,
at 1445 (emphasis added). This definition best harmonizes with the dictionary definition of the other critical statutory term, “premises,” i.e., “a specified piece or tract of land with the structures on it.”
Id.
at 1789. By construing
Congress’s placement of subsection nine within § 7 lends substantial support to this interpretation. For the other subsections in § 7 encompass
only
physical locations, e.g., federal property, the high seas and territorial waters of the United States, and particular types of large vehicles that themselves constitute a location. A construction of
Further, that Congress included “military ... missions” in a particular list of missions' — -i.e., “diplomatic, consular, military or other United States Government missions” — indicates that Congress intended “premises of a military mission” to denote the same sort of permanent location.
See United States v. Williams,
— U.S. -,
Finally, although certainly not dispositive of the issue before us,
For these reasons, we believe that
B.
We turn then to the question of whether, by June 2003, the “premises” of Asadabad constituted a United States “military mission” so as to render it within the criminal jurisdiction of a federal district court.
Clearly, long-established and permanent U.S. military bases abroad,
e.g.,
Naval Air Facility Atsugi in Japan and Ramstein Air Base in Germany, constitute “premises” of a “military mission” under
In cases that fall between these two extremes, courts must consider a number of common-sense, objective factors to determine whether a particular location qualifies as the “premises” of a United States “military mission” for purposes of
Applying these factors to Asadabad leads us to conclude that it possesses all the qualities of a permanent U.S. military
Second, as to the duration of United States control, although the United States initially took Asadabad by force, by the time Passaro arrived in May 2003, the United States had controlled Asadabad for approximately 18 months. This clearly provides objective evidence that the United States had taken permanent control of the base as of that date.
Third, by May 2003 the United States had substantially improved and fortified Asadabad. When the United States initially seized the compound, it consisted of little more than a few internal walls and a couple of rooms within the outer wall of the compound. By May 2003, however, coalition forces had improved the facility such that it contained approximately a dozen buildings, providing offices, living quarters, guard towers, and detention facilities. The Army had also installed electric generators and above-ground plumbing. Finally, building on Asadabad’s already-formidable outer wall, the military had constructed extensive, multilayered security fortifications. Such improvements indicate the permanence and substantiality of the U.S. presence at Asadabad.
Fourth, with respect to use, the United States, albeit on a smaller scale, has used Asadabad in much the same way as it has used larger military bases in Afghanistan (e.g., Bagram Air Base) and around the world. In all of these places, as in Asadabad, the United States has established significant facilities to conduct military operations, gather intelligence, and train local forces. Moreover, in Asadabad, as in these other outposts, the United States has stationed a significant military force (over 200 military and paramilitary personnel) on a long-term basis. With such forces come all of the necessary logistical support — food, water, weaponry and ammunition, and sleeping facilities. Thus, the similarity between Asadabad and these larger facilities provides further objective evidence that Asadabad had become a permanent United States installation by June 2003.
Finally, we note that by June 2003, the United States and Afghanistan had entered into significant bilateral agreements. See, e.g., Agreement For the Establishment and Operation of United States Radio Transmitting Facilities in Afghanistan, U.S.—AFG., Oct. 3, 2002, 2002 U.S.T. LEXIS 65. One agreement outlined the rights and obligations of United States forces in Afghanistan, effectively granting the Afghan government’s imprimatur to the American presence in Afghanistan. See Agreement Regarding the Status of United States Military and Civilian Personnel of the U.S. Department of Defense Present in Afghanistan, U.S.—Afg., May 28, 2003, 2002 U.S.T. LEXIS 100 [hereinafter Personnel Agreement]. 2
For all of these reasons, we believe that
III.
Having found that, by June 2003,
A.
Passaro argues that the district court unconstitutionally overstepped its bounds by adjudicating the charges brought against him. He claims that allowing Article III federal courts to try his case intrudes on the Executive Branch’s virtually boundless discretion in foreign affairs and war powers. This argument ignores a critical fact: the Executive itself elected to bring this prosecution.
A court does not intrude on any Executive Branch prerogative by holding that Congress empowered the Executive to prosecute criminal activity and provided a forum for adjudication of that prosecution. Passaro can cite
no
case holding, or even suggesting, that the exercise of prosecutorial discretion
by the Executive
somehow intrudes on the functions
of the Executive.
Instead, the cases on which Passaro relies involve
private citizens
suing the government in tort or in some other civil action.
See, e.g., Tiffany v. United States,
931
In fact, the Supreme Court itself has sanctioned a far greater intrusion on Executive prerogatives during a criminal prosecution. In
United States v. Nixon,
If the Executive action in
Nixon
did not offend separation-of-powers рrinciples, the Executive action here — the Government’s prosecution of Passaro — surely does not. On the contrary, refusing to hear this case would significantly intrude on
both
the Executive and Legislative Branches by rejecting Congress’s definition of criminal activity
and
the Executive’s lawful decision to prosecute.
See United States v. Funmaker,
B.
Alternatively, Passaro contends that
1.
With respect to notice, Passaro repeatedly insists that
What Passaro instead contends is that
Thus, although there may be cases in which
We further reject Passaro’s contention that
Passaro’s notice argument, rather than establishing vagueness, merely constitutes an attempt to justify his crimes. Passaro raised this and similar justification defenses before the jury. The jury rejected them, and Passaro does not contend that the jury’s verdict fails for lack of evidence. We cannot and will not permit him to transform a justification defense into a constitutional vagueness challenge.
2.
Passaro’s second vagueness argument— that the Government’s assertedly selective application of
Passaro fails to cite
any
evidence that in prosecuting him for violations of
IV.
Having assured ourselves that the district court properly exercised jurisdiction over the Government’s prosecution of Passaro, we turn to Passaro’s remaining challenges to his conviction.
A.
Passaro argues that the Government and the district court used the Classified Information Procedures Act (CIPA), Pub.L. No. 96-456, 94 Stat. 2025 (1980) (codified at 18 U.S.C.App. 3 §§ 1-16 (2006)), to deny him a fair trial. Specifically, Passaro argues that the district court permitted Government “misuse” of CIPA that (1) prevented him from “obtaining or presenting” evidence necessary to his defense and (2) allowed the Government to present “distorted” information regarding the circumstances surrounding his assault of Wali that “prevent[ed] proper jury instructions.” Brief of Appellant at 61, 63. We review a court’s CIPA rulings for an abuse of discretion, granting the court wide discretion in handling classified evidence.
United States v. Abu Ali,
1.
We bеgin with Passaro’s objections to the limits the district court imposed on disclosure of classified information. CIPA provides a procedural framework by which a court balances the defendant’s interest in a fair trial and the Government’s interest in protecting national security information.
United States v. Dumeisi,
Here the district court conducted the required CIPA hеaring as to each of Passaro’s requests for classified information disclosure and issued a detailed order on the admissibility of each. See 18 U.S.C.App. 3 § 6. The court admitted some of the evidence in full, admitted some in redacted form, and excluded some as irrelevant, cumulative, or corroborative.
With one exception, Passaro does not object to the redaction or exclusion of any specific piece of evidence. 7 Rather, he makes unsupported assertions, which amount to little more than insinuation of error. Having reviewed the record ourselves, we agree with the Government that the district court’s rulings allowed Passaro to present a full defense to the jury regarding his conduct and the circumstances surrounding that conduct. Thus, we find no abuse of discretion in the district court’s limitations on the introduction of classified evidence.
2.
Nor can we find fault with the district court’s orders withholding from Passaro discovery of certain classified information.
Passaro argues at length that the district court permitted the Government to use CIPA as a “sword” to prevent him from discovering the authorization necessary to his public authority defense. But to establish such an affirmative defense, Passaro must prove that someone with
actual authority
sanctioned an otherwise unlawful act.
United States v. Fulcher,
On the other hand, the Government presented substantial evidence that Passaro never received authorization for his interrogation methods. Passaro’s two direct superiors at Asadabad unequivocally testified at trial (and thus were subject to cross-examination by Passaro’s counsel) that they never authorized Passaro’s actions. Another civilian contractor, who had undergone training with Passaro, similarly testified that the CIA did not permit interrogators to strike detainees. Finally, the Government offered a summary of CIA interrogation policy. The district court, after examining ex parte the full top-secret policy, admitted a redacted summary into evidence pursuant to 18 U.S.C.App. 3 § 4. This document supports the testimony of the Government witnesses and offers no support to an affirmative public authority defense for Passaro’s acts.
For all these reasons, we reject Passaro’s CIPA arguments.
B.
In addition to his CIPA arguments, Passaro also maintains that the district court committed reversible error in rejecting his proposed jury instruction regarding justifiable use of reasonable force. A district court commits reversible error in refusing to provide a proffered jury instruction only when the instruction “(1) was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with some point in the trial so important, that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.”
United States v. Lewis,
Analogizing to a police arrest of a dangerous person, Passaro contends that the court should have instructed the jurors that they could excuse his conduct if they found that he, a “federal officer,” had used a level of force reasonably necessary to effectuate and maintain control of a criminal. Specifically, Passaro’s proposed instruction required the jury to consider, inter alia: ■
[T]he circumstances which led the United States forces to take [Wali] into custody [and] the information Mr. Passaro possessed about [Wali], to include information linking [Wali] to terrorist groups and to recent and frequent ambushes ....
We reject the notion that Passaro, a CIA contractor charged with questioning a man who was already detained and shackled, could avail himself of an excessive force defense reserved for law enforcement officers attempting to subdue or restrain a threatening person.
See, e.g., Waterman v. Batton,
To whatever extent Passaro’s proposed instruction is relevant, the district court’s charge to the jury — taken as a whole— sufficiently accounted for it. For instance, the court instructed the jury that Passaro lacked the requisite criminal intent if he “struck Abdul Wali in order to achieve another objective and not with the express intent to cause bodily harm.”
Thus, the district court did not abuse its discretion in refusing to give Passaro’s proposed jury instruction.
V.
Finally, we turn to the sentencing issues. The district court calculated Passaro’s offense level as 23, after finding a base offense level of 14, see U.S. Sentencing Guidelines Manual § 2A2.2(a) (2008), and applying enhancements for threatened use of a dangerous weapon (three levels), id. § 2A2.2(b)(2)(C), infliction of serious bodily injury (four levels), id. § 2A2.2(b)(3)(D), and involvement of a vulnerable victim (two levels), id. § 3A1.1(b)(1). With Passaro’s criminal history category of I, this established an advisory guidelines range of 46-57 months. From this range, the district court departed upward six levels for “extreme conduct,” see id. § 5K2.8, resulting in an offense level of 29 and an adjusted advisory Guidelines range of 87-108 months. The district court then sentenced Passaro to a 100-month term of imprisonment.
Passaro and the Government, albeit for different reasons, agree that the district court erred in applying the three-level enhancement for threatened use of a “dangerous weapon.” Id. § 2A2.2(b)(2)(C). Although not clear from the record, it appears that the district court based this enhancement on Passaro’s use of a heavy flashlight or his shod foot to beat Wali.
Passaro argues that the district court erred because the jury found that Passaro had actually kicked Wali with his foot, rather than threatening to kick him. Thus, Passaro contends, the evidence in no event supports a finding that Passaro merely threatened to kick Wali. According to Passaro, the district court therefore should have either applied the four-level enhancement for actual use of a dangerous weapon, id. § 2A2.2(b)(2)(B), or no enhancement at all. The Government agrees that the district court erred, but only because the court should have applied the four-level enhancement for actual use of a dangerous weapon.
The Guideline-sanctioned definition of dangerous weapon encompasses an extremely broad range of instrumentalities.
Id.
§§ 2A2.2 cmt. n. 1, 1B1.1 cmt. n. 1(D). This definition allows a trier of fact to consider as a dangerous weapon a knife, gun, shoe, dog, rake, or any other item adapted to causing death or sеrious bodily injury.
See United States v. Dayea,
In addition, both parties agree that the district court erred in imposing a six-level upward departure. In imposing the departure, the court cited § 5K2.8 of the Guidelines, which provides for an upward departure when the defendant’s conduct “was unusually heinous, cruel, brutal, or degrading.” U.S. Sentencing Guidelines Manual § 5K2.8 (2008). But, as the Government acknowledges, the district court offered no rationale for concluding that § 5K2.8 justified the chosen upward departure.
It is axiomatic that a district court commits reversible procedural error when it fails to explain a departure or variance, whether upward or downward.
United States v. Carter,
Passaro asserts additional sentencing errors, alleging that the district court erred in imposing a vulnerable victim enhancement, U.S. Sentencing Guidelines Manual § 3Al.1(b)(1) (2008), and a four-level increase for serious bodily injury, id. § 2A2.2(b)(3)(D). The two errors discussed above, however, already require a remand for resentencing, so we need not address these additional sentencing issues. In all events, nothing herein should be read to preclude the district court from reconsidering its earlier findings.
VI.
This case has required us to determine whether a federal court has jurisdiction over the trial of an American citizen for committing brutal assaults abroad. Congress has determined that individuals committing such crimes on the premises of United States military missions abroad are subject to prosecution in United States federal courts. The Executive has determined to bring the first such case against David Passaro. We are satisfied that Passaro received a fair trial from a conscientious jury, in a court that had jurisdiction to try him. Thus, after careful consideration of the challenges Passaro presents, we affirm Passaro’s conviction in all respects. In light of the conceded sentencing errors, however, we vacate Passaro’s sentence and remand for resentencing.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
Notes
. Because Wali’s family removed his body from Asadabad after his death and refused to allow an autopsy, the Government explains that it lacked evidence as to the cause of Wali’s death or a basis for any other criminal charges.
. Relying on the treaty exclusion in § 7(9) ("Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts."), Passaro contends that the absence of a specific jurisdictional grant in this Personnel Agreement precludes American jurisdiction over American civilians in Afghanistan. But the
. For these same reasons, we cannot conclude, as Passaro contends, that § 7(9) contains such "grievous ambiguity or uncertainty” as to invoke the rule of lenity.
Muscarello
v.
United States,
. Passaro also contends that the constitutional avoidance canon prevents the Government from prosecuting him, asserting that we should construe
. Passaro attempts to bolster this argument with a 2003 Office of Legal Counsel (OLC) memorandum, since retracted, which he maintains proves that the Department of Justice believed § 113 did not apply tо battlefield interrogations. See Memorandum for William J. Haynes II, Gen. Counsel of the Dep't of Def. (March 14, 2003). This memorandum recognized, as we do, that some foreign military locations would not fall within the “special maritime and territorial jurisdiction of the United States.” Id. at 21. But because the memorandum clearly states that § 7 reaches "U.S. military bases in foreign states,” id. at 19-20, and because Asadabad is such a military base, the memorandum undermines, rather than supports, Passaro’s position. Indeed, the memorandum addresses at length limitations that § 113 places on interrogations within the special maritime and territorial jurisdiction of the United States. Id. at 24-30.
. Passaro’s contention that
. The lone exception is the 2003 OLC Memorandum on which Passaro relies throughout.
See supra
note 5. But the record lacks any evidence that Passaro read or knew of, let alone relied on, this memorandum prior to his assault on Wali. Even if he had, such reliance would simply amount to a mistake of law, which provides no defense to the assault charges.
See Cheek v. United States,