U.S. v. Felix-Gutierrez

• Decision Date: 22 July 1991
• Docket Number: No. 89-50028,FELIX-GUTIERRE,D,89-50028
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1200

940 F.2d 1200

UNITED STATES of America, Plaintiff-Appellee, v. Jesus FELIX-GUTIERREZ, Defendant-Appellant.

No. 89-50028.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1991.

Decided July 22, 1991.

Donald C. Randolph, Gary S. Wigodsky, Overland, Berke, Wesley, Gits, Randolph & Levanas, Santa Monica, Cal., for defendant-appellant.

Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Div., Steven E. Zipperstein, Asst. U.S. Atty., Chief, Crim. Appeals, Dorothy Shubin, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, D. W. NELSON and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Jesus Felix-Gutierrez appeals his conviction for being an accessory after the fact. Felix was charged with assisting Rafaelo Caro-Quintero, who allegedly participated in the kidnapping and murder of DEA Special Agent Enrique Camarena-Salazar and Alfredo Zavala, in his effort to avoid capture by law enforcement authorities. ¹ Following a jury trial, Felix was convicted and sentenced to 10 years in prison. He raises several issues on appeal. We reject his claims and affirm the judgment of the district court. ²

I. Facts

This case arises out of the 1985 kidnapping, torture, and murder of DEA Special Agent Enrique Camarena and Alfredo Zavala, a pilot who was a confidential DEA informant. Camarena and Zavala disappeared on February 7, 1985, in Guadalajara, Mexico. Approximately one month later, their bodies were found lying together in an open field near Zamora, Michoacan, Mexico. They had been brutally tortured and murdered.

During trial, the prosecution introduced evidence that Caro-Quintero, an alleged drug kingpin in Mexico, played a central role in the torture and murders of Camarena and Zavala. Felix and his co-defendant, Rene Martin Verdugo-Urquidez, were associated with the Caro-Quintero narcotics enterprise. Felix was responsible for the importation of hundreds of tons of marijuana into the United States from Mexico and assisted in the importation of cocaine into Mexico and the United States from Columbia and Costa Rica. He directed the distribution by one individual of between one and five kilos of cocaine on at least thirty occasions.

On February 9, 1985, two days after Agent Camarena's disappearance, Caro-Quintero, following a shoot-out at the airport with Mexican law enforcement officials and DEA agents, travelled from Mexico to Costa Rica in a Falcon jet. Felix travelled to Costa Rica from Panama that same day. He thereafter began to travel under aliases between Panama, Costa Rica, and the United States. While in Costa Rica, he assisted Caro-Quintero in purchasing a red Toyota. He was also seen at Caro-Quintero's La Quinta residence and remarked to an associate that Caro-Quintero could not meet with the associate at the time because they were people with few friends. Felix told Arturo de la Torre, who often transported narcotics for him, that he and Inez Calderon had arranged for a pilot to take Caro-Quintero from Mexico to Costa Rica. Felix also stated that the "heat was on" Caro-Quintero because of the kidnapping of Agent Camarena.

Fearing that Caro-Quintero's flashy style would attract law enforcement authorities, Felix left Costa Rica. After Caro-Quintero's arrest, Felix returned to Los Angeles. Notwithstanding the fact that he owned a home and two businesses in Los Angeles, he stayed at the Best Western hotel in Monterey Park. On April 9, 1985, de la Torre visited Felix at the hotel. They watched a television newscast which reported Felix's suspected involvement in the flight of Caro-Quintero from Mexico to Costa Rica. The newscast mentioned Felix's alias and his nickname ("Cachas"). Felix told de la Torre that he never thought that Caro-Quintero would "finger him."

De la Torre drove Felix to Reno, where he had a tattoo removed from his right shoulder. The tattoo consisted of the word "Cachas." Felix returned to Los Angeles and had the stitches removed from his shoulder, and had plastic surgery to add a dimple and to remove the sagging beneath his eyes. He was arrested in Whittier, California on December 24, 1986. At the time of his arrest, he had in his possession false identification, and denied that he was "Cachas."

II. Extraterritorial Jurisdiction

Appellant contends that the district court lacked subject matter jurisdiction to try him for criminal acts that occurred entirely outside the United States or its territories. This court reviews de novo the question whether the district court lacked subject matter jurisdiction. United States v. Layton, 855 F.2d 1388, 1394 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989).

A. Overview

Generally, there is no constitutional bar to the extraterritorial application of United States penal laws. Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); United States v. King, 552 F.2d 833, 850 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). Courts look to congressional intent, express or implied, to determine whether a given statute should have extraterritorial application. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922); Chua Han Mow, 730 F.2d at 1311. Moreover, courts generally look to international law principles to ensure that an extraterritorial application of United States laws is "reasonable." Id.

B. Congressional Intent

Felix was charged as an accessory after the fact for assisting Caro-Quintero in eluding law enforcement agents following Caro-Quintero's participation in the kidnapping and murder of a DEA agent. The statute under which Felix was charged does not expressly provide for extraterritorial application. However, we will infer congressional intent to provide for extraterritorial jurisdiction for crimes that are not dependent on the locality in which they were committed "but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated ..." Bowman, 260 U.S. at 98, 43 S.Ct. at 41. For such crimes, limiting jurisdiction to the territorial bounds of the United States would greatly curtail the scope and usefulness of the penal statutes. Id. Thus, " '[t]he exercise of [extraterritorial power] may be inferred from the nature of the offenses and Congress' other legislative efforts to eliminate the type of crime involved.' " United States v. Thomas 893 F.2d 1066, 1068 (9th Cir.1990) (quoting United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980)).

18 U.S.C. Sec. 3 provides that a person is an accessory after the fact if he receives, relieves, comforts or assists someone he knows has committed an offense against the United States. Conduct outside the territorial bounds of the United States can be an offense against the United States only if a United States law reaches that conduct. Here, we must examine two questions: (1) whether the underlying crime, Caro-Quintero's participation in the kidnapping and murder of a DEA agent, is subject to extraterritorial application; and (2) whether assisting someone who has committed the underlying crime in avoiding apprehension, trial, or punishment is subject to such treatment.

We noted in Brulay v. United States, 383 F.2d 345, 350 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967), that drug "smuggling by its very nature involves foreign countries, and ... the accomplishment of the crime always requires some action in a foreign country...." It follows that United States agents involved in the investigations of international organizations seeking to smuggle drugs into the United States will, when foreign governments are willing to cooperate, conduct a portion of their activities outside the territorial bounds of the United States. We have no doubt that whether the kidnapping and murder of such federal agents constitutes an offense against the United States is not dependent upon the locus of the act. We think it clear that Congress intended to apply statutes proscribing the kidnapping and murder of DEA agents extraterritorially. See Layton, 855 F.2d at 1395 (citation omitted) ("the killing of a member of Congress--is 'directly injurious to the government, and [is] capable of perpetration without regard to particular locality' "); United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir.1984) (concluding that "assault and attempted murder of DEA agents is exactly the type of crime that Congress must have intended to apply extraterritorially"). Therefore the remaining question is whether the offense committed by Felix, in assisting Caro-Quintero to avoid apprehension, trial, or punishment, is subject to extraterritorial application.

We conclude that the crime of "accessory after the fact" gives rise to extraterritorial jurisdiction to the same extent as the underlying offense. That is, if the underlying substantive statute applies extraterritorially, the statute making it unlawful to assist another in avoiding apprehension, trial or punishment also applies extraterritorially when invoked in connection with an extraterritorial violation of the underlying statute. Under such circumstances, neither the locality of the underlying offense nor of the related accessory after the fact offense is determinative of whether an offense has been committed against the United States; both extraterritorial offenses injure the government. Limiting jurisdiction to the territorial bounds of the United States would greatly curtail the scope and usefulness of the accessory after the fact statute in cases in which extraterritorial crimes occur. We have inferred extraterritorial application of conspiracy statutes on the basis of a finding that the underlying substantive statutes reach extraterritorial offenses. See, e.g., Chua Han Mow...