U.S. v. Yunis

• Decision Date: 29 January 1991
• Docket Number: No. 89-3208,89-3208
• Citation: 288 U.S. App. D.C. 129,924 F.2d 1086
• Parties: UNITED STATES of America v. Fawaz YUNIS, a/k/a Nazeeh, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1086

924 F.2d 1086

288 U.S.App.D.C. 129

UNITED STATES of America v. Fawaz YUNIS, a/k/a Nazeeh, Appellant.

No. 89-3208.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 22, 1990.

Decided Jan. 29, 1991.

Appeal from the United States District Court for the District of Columbia (Criminal No. 87-00377).

Francis D. Carter, Washington, D.C. (appointed by the court), for appellant.

John F. De Pue, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and Jennifer E. Levy, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before MIKVA, Chief Judge, WALD and RUTH BADER GINSBERG, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

Appellant Fawaz Yunis challenges his convictions on conspiracy, aircraft piracy, and hostage-taking charges stemming from the hijacking of a Jordanian passenger aircraft in Beirut, Lebanon. He appeals from orders of the district court denying his pretrial motions relating to jurisdiction, illegal arrest, alleged violations of the Posse Comitatus Act, and the government's withholding of classified documents during discovery. Yunis also challenges the district court's jury instructions as erroneous and prejudicial.

Although this appeal raises novel issues of domestic and international law, we reject Yunis' objections and affirm the convictions.

I. BACKGROUND

On June 11, 1985, appellant and four other men boarded Royal Jordanian Airlines Flight 402 ("Flight 402") shortly before its scheduled departure from Beirut, Lebanon. They wore civilian clothes and carried military assault rifles, ammunition bandoleers, and hand grenades. Appellant took control of the cockpit and forced the pilot to take off immediately. The remaining hijackers tied up Jordanian air marshals assigned to the flight and held the civilian passengers, including two American citizens, captive in their seats. The hijackers explained to the crew and passengers that they wanted the plane to fly to Tunis, where a conference of the Arab League was under way. The hijackers further explained that they wanted a meeting with delegates to the conference and that their ultimate goal was removal of all Palestinians from Lebanon.

After a refueling stop in Cyprus, the airplane headed for Tunis but turned away when authorities blocked the airport runway. Following a refueling stop at Palermo, Sicily, another attempt to land in Tunis, and a second stop in Cyprus, the plane returned to Beirut, where more hijackers came aboard. These reinforcements included an official of Lebanon's Amal Militia, the group at whose direction Yunis claims he acted. The plane then took off for Syria, but was turned away and went back to Beirut. There, the hijackers released the passengers, held a press conference reiterating their demand that Palestinians leave Lebanon, blew up the plane, and fled from the airport.

An American investigation identified Yunis as the probable leader of the hijackers and prompted U.S. civilian and military agencies, led by the Federal Bureau of Investigation (FBI), to plan Yunis' arrest. After obtaining an arrest warrant, the FBI put "Operation Goldenrod" into effect in September 1987. Undercover FBI agents lured Yunis onto a yacht in the eastern Mediterranean Sea with promises of a drug deal, and arrested him once the vessel entered international waters. The agents transferred Yunis to a United States Navy munitions ship and interrogated him for several days as the vessel steamed toward a second rendezvous, this time with a Navy aircraft carrier. Yunis was flown to Andrews Air Force Base from the aircraft carrier, and taken from there to Washington, D.C. In Washington, Yunis was arraigned on an original indictment charging him with conspiracy, hostage taking, and aircraft damage. A grand jury subsequently returned a superseding indictment adding additional aircraft damage counts and a charge of air piracy.

Yunis filed several pretrial motions, among them a motion to suppress statements he made while aboard the munitions ship. In United States v. Yunis (Yunis I), 859 F.2d 953 (D.C.Cir.1988), this court reversed a district court order suppressing the statements, and authorized their introduction at trial. We revisited the case on a second interlocutory appeal relating to discovery of classified information, reversing the district court's disclosure order. United States v. Yunis (Yunis II), 867 F.2d 617 (D.C.Cir.1989).

Yunis admitted participation in the hijacking at trial but denied parts of the government's account and offered the affirmative defense of obedience to military orders, asserting that he acted on instructions given by his superiors in Lebanon's Amal Militia. The jury convicted Yunis of conspiracy, 18 U.S.C. Sec. 371 (1988), hostage taking, 18 U.S.C. Sec. 1203 (1988), and air piracy, 49 U.S.C. App. Sec. 1472(n) (1988). However, it acquitted him of three other charged offenses that went to trial: violence against people on board an aircraft, 18 U.S.C. Sec. 32(b)(1) (1988), aircraft damage, 18 U.S.C. Sec. 32(b)(2) (1988), and placing a destructive device aboard an aircraft, 18 U.S.C. Sec. 32(b)(3) (1988). The district court imposed concurrent sentences of five years for conspiracy, thirty years for hostage taking, and twenty years for air piracy. Yunis appeals his conviction and seeks dismissal of the indictment.

II. ANALYSIS

Yunis argues that the district court lacked subject matter and personal jurisdiction to try him on the charges of which he was convicted, that the indictment should have been dismissed because the government seized him in violation of the Posse Comitatus Act and withheld classified materials useful to his defense, and that the convictions should be reversed because of errors in the jury instructions. We consider these claims in turn.

A. Jurisdictional Claims

Yunis appeals first of all from the district court's denial of his motion to dismiss for lack of subject matter and personal jurisdiction. See United States v. Yunis, 681 F.Supp. 896 (D.D.C.1988). Appellant's principal claim is that, as a matter of domestic law, the federal hostage taking and air piracy statutes do not authorize assertion of federal jurisdiction over him. Yunis also suggests that a contrary construction of these statutes would conflict with established principles of international law, and so should be avoided by this court. Finally, appellant claims that the district court lacked personal jurisdiction because he was seized in violation of American law.

1. Hostage Taking Act

The Hostage Taking Act provides, in relevant part:

(a) [W]hoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or to abstain from any act ... shall be punished by imprisonment by any term of years or for life.

(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless--

(A) the offender or the person seized or detained is a national of the United States;

(B) the offender is found in the United States; or

(C) the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. Sec. 1203. Yunis claims that this statute cannot apply to an individual who is brought to the United States by force, since those convicted under it must be "found in the United States." But this ignores the law's plain language. Subsections (A), (B), and (C) of section 1203(b)(1) offer independent bases for jurisdiction where "the offense occurred outside the United States." Since two of the passengers on Flight 402 were U.S. citizens, section 1203(b)(1)(A), authorizing assertion of U.S. jurisdiction where "the offender or the person seized or detained is a national of the United States," is satisfied. The statute's jurisdictional requirement has been met regardless of whether or not Yunis was "found" within the United States under section 1203(b)(1)(B).

Appellant's argument that we should read the Hostage Taking Act differently to avoid tension with international law falls flat. Yunis points to no treaty obligations of the United States that give us pause. Indeed, Congress intended through the Hostage Taking Act to execute the International Convention Against the Taking of Hostages, which authorizes any signatory state to exercise jurisdiction over persons who take its nationals hostage "if that State considers it appropriate." International Convention Against the Taking of Hostages, opened for signature Dec. 18, 1979, art. 5, para. 1, 34 U.N. GAOR Supp. (No. 39), 18 I.L.M. 1456, 1458. See H.R. CONF. REP. No. 1159, 98th Cong., 2d Sess 418 (1984), reprinted in 1984 U.S.CODE CONG. & ADMIN.NEWS 3182, 3710, 3714.

Nor is jurisdiction precluded by norms of customary international law. The district court concluded that two jurisdictional theories of international law, the "universal principle" and the "passive personal principle," supported assertion of U.S. jurisdiction to prosecute Yunis on hijacking and hostage-taking charges. See Yunis, 681 F.Supp. at 899-903. Under the universal principle, states may prescribe and prosecute "certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism," even absent any special connection between the state and the offense. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES Secs. 404, 423 (1987) [hereinafter RESTATEMENT]. Under the passive personal principle, a state may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime. See id. at Sec. 402 comment g; United States v. Benitez, 741 F.2d 1312,...