U.S. v. Al-Hamdi

• Decision Date: 23 January 2004
• Docket Number: No. 03-4655.,No. 03-4452.,03-4452.,03-4655.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ibrahim Ahmed AL-HAMDI, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ibrahim Ahmed Al-Hamdi, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

356 F.3d 564

UNITED STATES of America, Plaintiff-Appellee, v. Ibrahim Ahmed AL-HAMDI, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Ibrahim Ahmed Al-Hamdi, Defendant-Appellant.

No. 03-4452.

No. 03-4655.

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2003.

Decided: January 23, 2004.

Appeal from the United States District Court for the Eastern District of Virginia, James C. Cacheris, Senior District Judge.

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ARGUED: Salim Ali, Becker, Hadeed, Kellogg & Berry, P.C., Springfield, Virginia, for Appellant. David Howard Laufman, Assistant United States Attorney, Office Of The United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Office Of The United States Attorney, Alexandria, Virginia, for Appellee.

Before WILLIAMS, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Williams wrote the opinion, in which Judge King and Judge Duncan joined.

OPINION

WILLIAMS, Circuit Judge:

In this appeal, Ibrahim Al-Hamdi, a citizen of the Republic of Yemen, contests his prosecution and conviction for violating 18 U.S.C.A. § 922(g)(5)(B) (West 2000), which prohibits possession of a firearm by a non-immigrant alien. Al-Hamdi's principal argument is that, as the family member of a diplomat, he possessed diplomatic immunity at the time of his arrest and that the State Department later tried to revoke that immunity retroactively, in violation of the Vienna Convention on Diplomatic Relations and the United States Constitution. Finding that the State Department's interpretation of who is a "member[] of the family of a diplomatic agent forming part of his household" (member of the family) for purposes of the Vienna Convention is reasonable, we accept its certification as conclusive evidence that Al-Hamdi, at the time of his arrest, was not a "member of the family" and hold that Al-Hamdi did not have diplomatic immunity. We also hold that the State Department's actions in this matter did not violate the constitutional guarantee of due process.

I.

On February 25, 2003, officers from the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Services (INS),¹ executed a search warrant at the Annandale, Virginia apartment of Ibrahim Al-Hamdi. Upon entering the residence, one of the occupants told the officers that Al-Hamdi kept a rifle in the apartment. Soon thereafter, the agents discovered a loaded .308 caliber rifle with a telescopic site in Al-Hamdi's closet. Al-Hamdi was subsequently indicted by a federal grand jury on April 17, 2003, for possession of a firearm by a non-immigrant alien, in violation of 18 U.S.C.A. § 922(g)(5)(B).

Based on the belief that he was immune from prosecution, see Vienna Convention on Diplomatic Relations, April 18, 1961, art. 37.1, 23 U.S.T. 3227 (hereinafter "Vienna Convention") (stating that members of a diplomat's family also have diplomatic immunity), Al-Hamdi filed a motion to dismiss the indictment on May 12, 2003, in the United States District Court for the Eastern District of Virginia. After an oral hearing, the district court denied the motion by an order dated May 16, 2003, and Al-Hamdi filed an interlocutory notice of appeal on May 27, 2003. On June 5, 2003 Al-Hamdi pleaded guilty to the firearms charge but reserved his right to appeal on the ground of diplomatic immunity. The district court sentenced Al-Hamdi to eighteen months imprisonment and three years of supervised release on August 1, 2003. Al Hamdi filed a second timely notice of appeal on August 15, which was consolidated with the first notice of appeal.²

Al-Hamdi was born in Yemen on November 12, 1977, but moved to the United States in 1993 when his father, Ahmed Ali Saleh Al-Hamdi, was appointed as a Minister at the Republic of Yemen's embassy in Washington, D.C. The Government agrees that in 1993 Al-Hamdi and his father possessed diplomatic immunity pursuant to the Vienna Convention. Al-Hamdi celebrated his twenty-first birthday in November 1998. He was not enrolled in school at the time, and his diplomatic identification card, given to all persons with diplomatic immunity, expired on December 12, 1998. The Yemeni embassy applied for a new identification card for Al-Hamdi on December 1, 1999, but the State Department requested more information before it would grant the request. No further information was provided, and Al-Hamdi was never issued a new identification card. Al-Hamdi, however, continued to be issued A-1 visas³ after 1999 and has entered the United States with an A-1 visa on numerous occasions since 1999.

On March 31, 2003, the State Department sent a letter to the Yemeni embassy stating that Al-Hamdi's father lost his diplomatic immunity on that date because he no longer performed full-time services for Yemen at the embassy. On May 15, 2003, in response to Al-Hamdi's motion to dismiss the indictment, the State Department certified that Al-Hamdi lost his diplomatic immunity on November 12, 1998, the date of his twenty-first birthday. Thus, according to the May 15 certification, Al-Hamdi did not possess diplomatic immunity at the time of his arrest.

II.

On appeal, Al-Hamdi's principal argument is that he possessed diplomatic immunity at the time of his arrest on February 25, 2003, and was thus immune from prosecution. He also contends that the State Department's May 15, 2003, certification retroactively revoked that immunity, in violation of his substantive and procedural due process rights as guaranteed by the Fifth Amendment of the Constitution.⁴ We address each of these arguments in turn.

The determination of whether a person has diplomatic immunity is a mixed question of fact and law. We review such questions "under a hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts." Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895, 905 (4th Cir.1996); see also United States v. Han, 74 F.3d 537, 540 n. 1 (4th Cir.1996) (explaining the application of the hybrid standard). Interpretation of an international treaty is an issue of law subject to de novo review. Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir.1996).

A.

In pertinent part, the Vienna Convention states that a "diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." Vienna Convention at art. 31.1. Article 37.1 reads "members of the family of a diplomatic agent forming part of his household shall... enjoy the privileges and immunities specified in Articles 29 to 36." Vienna Convention at art 37.1. The Diplomatic Relations Act, which made the Vienna Convention applicable to the United States, see Tabion, 73 F.3d at 536 n. 1, provides that the phrase "members of the family" means the "members of the family of a member of a mission ... who form part of his or her household." 22 U.S.C.A. § 254a(2)(A) (West 1990). That Act also provides, quite clearly, that "[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding ... shall be dismissed." 22 U.S.C.A. § 254d (West 1990). Thus, under the plain language of the statute, if, at the time he was arrested, Al-Hamdi was entitled to diplomatic immunity under Article 37.1 of the Vienna Convention, the criminal proceedings against him must be dismissed.

In its May 15, 2003 letter, the State Department certified that Al-Hamdi lost his diplomatic immunity in November 1998. The State Department based its certification on a Circular Diplomatic Note⁵ that it issued in 1989. United States Department of State, Circular Diplomatic Note of November 15, 1989. (S.A. at 3.) That Circular Note articulated the State Department's position that the phrase "members of the family," as set forth in the Vienna Convention and the Diplomatic Relations Act, did not include children over the age of twenty-one. (S.A. at 5.) The 1989 Circular Note provided, however, that children of certified diplomats still enrolled in school are considered family members until their twenty-third birthday. Id. (S.A. at 5). The 1989 Circular Note was provided to all foreign missions and remains in force, but because the Republic of Yemen was not formed until 1990, it did not receive the Circular Note during 1989.

In 1998, the State Department published guidelines for administrative officers that restated the age limitations on children who are considered members of the diplomatic family as had been originally stated in the 1989 Circular Note and explained that "it is generally agreed that host States may formulate reasonable definitions" of the phrases used in the Vienna Convention. United States Department of State, Foreign Diplomatic and Career Consular Personnel in the United States — Guidance for Administrative Officers (1998).⁶ (S.A. at 25-28.) The State Department provided that publication to all foreign embassies in the United States, including the Yemeni embassy.

The Government forcefully argues that the State Department's certification of Al-Hamdi's lack of immunity is conclusive and thus judicially unreviewable. The Government concedes, however, that the State Department cannot act outside the Vienna Convention in issuing a certification and also admits that in this case the State Department's certification is based upon its own interpretation of the Vienna Convention, not the plain language of that document. Thus, we believe we first must ensure that the State Department's certification was not based on an impermissible interpretation of the Vienna Convention. Then, we will examine the evidentiary effect of the State Department's certification made pursuant to that interpretation.

When interpreting a treaty, we "first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 663, ...