United States District Court, E.D. Virginia, Alexandria Division
For Edwin Gerardo Figuero Sepulveda, also known as Garcho, Defendant: Todd M. Richman, LEAD ATTORNEY, Office of the Federal Public Defender (Alexandria), Alexandria, VA.
For USA, Plaintiff: Michael Ben'Ary, Stacey K. Luck, LEAD ATTORNEYS, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.
MEMORANDUM OPINION AND ORDER
Gerald Bruce Lee, United States District Judge.
THIS MATTER is before the Court on Defendant's Motion to Dismiss for Violation of the Notice Requirement of the Fifth Amendment Due Process Clause (" Motion to Dismiss" ). (Doc. 119.) This case arises from the murder of DEA Special Agent James Terry Watson in Bogota, Colombia on June 20, 2013. The issue before the Court is whether prosecuting the Defendant in the United States for the crimes charged violates the notice requirement of the Fifth Amendment's Due Process Clause. The Court DENIES Defendant's Motion to Dismiss because the charged crimes encompass extraterritorial jurisdiction over Defendant's conduct and his due process rights are not violated by subjecting him to prosecution in the United States under United States v. Brehm, 691 F.3d 547 (4th Cir. 2012).
On July 18, 2013, a federal grand jury returned an indictment charging six defendants with the murder of DEA Special Agent James Terry Watson. (Doc. 15 ¶ 1.) The murder allegedly occurred on June 20, 2013, in Bogota, Colombia in a taxi cab as part of a scheme to rob taxi riders. (Doc. 15 ¶ 17.) The indictment charged the six defendants, including Defendant Sepulveda, with: Count 1, murder of an internationally protected person and aiding and abetting that murder, in violation of 18 U.S.C. § § 2, 1116(a), (c); Count 3, conspiracy to kidnap an internationally protected person, in violation of 18 U.S.C. § 1201(c); and Count 4, kidnapping an internationally protected person and aiding and abetting that kidnapping, in violation of 18 U.S.C. § § 2, 1201. (Doc. 15.)
The Court DENIES Defendant's Motion to Dismiss because the charged crimes encompass extraterritorial jurisdiction over Defendant's conduct and his due process rights are not violated by subjecting him to prosecution in the United States for
such crimes under United States v. Brehm, 691 F.3d 547 (4th Cir. 2012).
First, as an initial matter, the Court finds that Congress intended for the charges of murder of an internationally protected person and kidnapping of an internationally protected person to be applied extraterritorially because the plain language of the statutes undeniably demonstrates such an intent. Congress expressly provided for extraterritorial application of jurisdiction in the statutes. See 18 U.S.C. § 1116(c) (explicitly grants extraterritorial jurisdiction over the murder of an internationally protected person " [i]f the victim . . . is an internationally protected person outside the United States . . . . " ); § 1201(e) (explicitly states that " if the victim . . . is an internationally protected person outside the United States, the United States may exercise jurisdiction over the offense [kidnapping of an internationally protected person] if," among other things, " the victim is a representative, officer, employee, or agent of the United States . . . ." ). The plain language of these statutes rebuts the presumption against extra-territoriality by codifying Congress' intent that extraterritorial jurisdiction be applied regardless of where the offenses occur. See E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (" It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." (emphasis added) (citations and internal quotation marks omitted)); Reyes-Gaona v. N.C. Growers Ass'n, 250 F.3d 861, 864 (4th Cir. 2001) (" [T]he presumption against extra-territorial application of a federal statute can be overcome only if there is an affirmative intention of the Congress clearly expressed " (emphasis added) (citations and internal quotation marks omitted)).
Second, the Court holds that Defendant's due process rights are not violated by prosecuting him in the United States for the murder and kidnapping of an internationally protected person because exercising extraterritorial jurisdiction for these offenses is proper under the Fourth Circuit's test set forth in Brehm. Defendant argues that the United States cannot meet the requirements of the sufficient nexus test, while the Government argues that the Fourth Circuit has not adopted the sufficient nexus test and has instead outlined factors for courts to consider in the Brehm case. Each contention is discussed in turn.
Defendant claims that the Fourth Circuit has adopted the sufficient nexus test to determine whether extraterritorial jurisdiction offends a defendant's right to due process. " To the extent the nexus requirement serves as a proxy for due process, it addresses the broader concern of ensuring that 'a United States court will assert jurisdiction only over a defendant who should reasonably anticipate being haled into court in this country.'" United States v. Ali, 718 F.3d 929, 944, 405 U.S.App.D.C. 279 (D.C. Cir. 2013) (quoting United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998)). The ultimate question for the Court is whether " application of the statute to the defendant [would] be arbitrary or fundamentally unfair." United States v. Juda, 46 ...