U.S. v. Dizdar, s. 791
| Decision Date | 27 July 1978 |
| Docket Number | D,947 and 948,Nos. 791,s. 791 |
| Citation | 581 F.2d 1031 |
| Parties | UNITED STATES of America, Appellee, v. Vladimir DIZDAR, Jozo Brekalo and Marijan Buconjic, Defendants-Appellants. ockets 78-1007, 78-1020 and 78-1021. |
| Court | U.S. Court of Appeals — Second Circuit |
James St. Clair, Boston, Mass. (Hale & Dorr, Robert D. Keefe, Boston, Mass., of counsel), for defendants-appellants Buconjic and Brekalo.
Raymond A. Levites, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Howard W. Goldstein and Audrey Strauss, Asst. U. S. Attys., New York City, of counsel), for appellee.
Before FEINBERG, MANSFIELD, and OAKES, Circuit Judges.
Following an increase in acts of violence in various countries against foreign diplomats and representatives, Congress in 1972 passed legislation extending the protection of our federal criminal laws to designated categories of foreign officials, 18 U.S.C. §§ 1201, 1116(b), S.Rep. No. 92-1105, 92nd Cong.2nd Sess. (1972), reprinted in (1972) U.S.Code Cong. & Admin.News, p. 4316. The present appeal raises issues with respect to the application of those laws to acts committed in June 1977 by appellants Dizdar, Brekalo, and Buconjic on the premises of the Yugoslavian Mission to the United Nations (the "Mission") in New York City.
After a fourteen-day trial in the Southern District of New York before Judge Thomas P. Griesa and a jury, appellants were convicted of conspiracy to seize and confine a foreign official, 18 U.S.C. § 1201(c). In addition, Dizdar was convicted of assaulting a foreign official with a deadly or dangerous weapon, 18 U.S.C. § 112, and Buconjic was convicted of assaulting a foreign official. Finding no reversible error, we affirm.
On June 14, 1977, at approximately 2:20 p. m., appellants, advocates of Croatian independence, forcibly entered the Mission premises, shooting and wounding seriously one member of the Mission staff in the process. All three men carried loaded revolvers into the Mission, along with a large quantity of ammunition, a supply of leaflets entitled Freedom for Croatia, a set of walkie-talkies, a portable radio, twenty-two packages of cigarettes, and three coils of rope. The staff of the Mission, exclusive of family members, consisted of twelve diplomatic officials and twenty-nine employees, all but one of whom were foreign nationals.
Once they gained entry to the Mission, appellants barricaded themselves in a room, kept the police at bay by pretending that they were holding a woman hostage, and made several "demands," including (1) that they receive immediate media coverage, (2) that their leaflet be transmitted to Kurt Waldheim, Secretary General of the United Nations, and (3) that a photograph be taken of the Croatian and American flags which the men had hung from a window in the Mission.
When these demands were substantially met, appellants surrendered to New York City police. They were interrogated, and all three made statements in which they admitted that they had planned to seize staff employees of the Mission and hold them as hostages. Buconjic added that he planned to use the rope to tie up prisoners. All three defendants testified at trial, repudiating their confessions insofar as they indicated that the men had intended to take hostages.
Thus, the burden was upon the Government to prove that those whom the defendants had conspired to seize and to detain as hostages were "persons of a foreign nationality who (had been) duly notified to the United States" as officers or employees of their government. This the Government sought to do by introducing the testimony of Sol Kuttner, a State Department adviser attached to the United States Mission to the United Nations, who is responsible for insuring "that the obligations that have been entered into by the United States in the way of treaties and agreements with missions to the United Nations and the United Nations Secretariat are observed." He testified that he was responsible for overseeing the procedure for the notification to the United States of foreign officials connected with the United Nations as described in 18 U.S.C. § 1116(b). He outlined the procedure as follows:
"When a member mission to the United Nations arrives, his mission has the obligation of submitting his name on an appointments paper to the Secretary General of the United Nations.
The Secretary General has his chief of protocol submit the name on a list which is issued once every two weeks to the United States Mission to the United Nations.
We in turn submit that list to the Department of State in Washington, and that serves as the notification that is required . . . "
Kuttner testified that on June 14, 1977, when appellants seized the Mission, at least 12 officers and 29 staff members of the Yugoslavian Mission had been "duly notified" to the United States as foreign officials, including the Yugoslavian Ambassador to the United Nations, Jaksa Petric, and the staff member who had been wounded, Radomir Medic. 2 Documentary evidence to support the testimony was also introduced.
Appellants contend that this evidence was not sufficient to permit the offense charged under 18 U.S.C. § 1201(c) to go to the jury, because it failed to show that all of the procedures necessary for the notification of foreign officials to the United States had been followed. Citing 22 C.F.R. § 2.3 (1975) and Article V, § 15 of the Headquarters Agreement between the United States and the United Nations, 22 U.S.C. § 287, appellants argue that Kuttner's description of the notification procedure was incorrect, and that the procedure is actually bilateral, requiring acceptance or approval by the United States or any foreign official who seeks to be "duly notified." We disagree.
22 C.F.R. § 2.3 (1975) states:
(a) Any notification of a foreign official for purposes of section 1116(b)(2) of title 18 of the United States Code shall be directed by the foreign government or international organization concerned to the Chief of Protocol, Department of State, Washington, D.C. 20520. For persons normally accredited to the United States in diplomatic or consular capacities and also for persons normally accredited to the United Nations and other international organizations and in turn notified to the Department of State, the procedure for placing a person in the statutory category of being 'duly notified to the United States' shall be the current procedure for accreditation, with notification in turn when applicable. The Chief of the Office of Protocol will place on the roster of persons 'duly notified to the United States' the names of all persons currently accredited and, when applicable, notified in turn, and will maintain the roster as part of the official files of the Department of State adding to and deleting therefrom as changes in accreditations occur.
The regulation equates the notification procedure with "the current procedure for accreditation." That procedure was described by the United States delegation to the Vienna Nations Conference on Diplomatic Intercourse and Immunities:
All that should be necessary in the case of a member of the staff of the mission is his notification by the sending State to the two receiving States (where assignment to two States) and their express or tacit acceptance of him. A person can be 'accredited' in many ways. A note from the head of mission regarding a newly arrived member of his staff should be quite sufficient to assure the receiving State that he does in fact speak for his government. Unless the receiving State objects to the appointment, he will thereby have been 'accredited,' in the dictionary meaning of the term.
7 Whitman, Digest of International Law 77 (1970).
The description of the notification procedure contained in 22 C.F.R. § 2.3 is, therefore, fully consistent with Kuttner's testimony. Although subparagraph (a) of 22 C.F.R. § 2.3 requires the Chief of Protocol of the State Department to maintain a roster of the names of persons who have been duly notified to the United States, the maintenance of such a roster is not a condition precedent to effective notification of a foreign official to the United States. Moreover, although the fact of notification might also be established through introduction of the roster through the Chief of Protocol, the Chief was not the only witness qualified to testify concerning the notification procedure, as appellants suggest. Nor was introduction of the actual roster the only way in which the Government could prove that the Yugoslavian Mission staff included "foreign officials" within the meaning of 18 U.S.C. § 1116(b).
Appellants' invocation of the Headquarters Agreement, 22 U.S.C. § 287, is similarly unavailing. As Judge Weinfeld's opinion in United States ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425 (S.D.N.Y.1963), makes clear, the section of the Agreement upon which appellants rely relates only to the procedure for conferring full diplomatic...
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