U.S. v. Lue, 622

• Decision Date: 14 January 1998
• Docket Number: No. 622,D,622
• Citation: 134 F.3d 79
• Parties: UNITED STATES of America, Appellee, v. Wang Kun LUE, Defendant, Chen De Yian, Defendant-Appellant. ocket 96-1314.
• Court: U.S. Court of Appeals — Second Circuit

Page 79

134 F.3d 79

UNITED STATES of America, Appellee, v. Wang Kun LUE, Defendant Chen De Yian, Defendant-Appellant.

No. 622, Docket 96-1314.

United States Court of Appeals Second Circuit.

Argued Dec. 5, 1996.

Decided Jan. 14, 1998.

Tai H. Park, Assistant United States Attorney (Mary Jo White, United States Attorney, Southern District of New York, New York City, Marian W. Payson, Assistant United States Attorney, on the briefs), for Appellee.

Andrew H. Shapiro (Henriette D. Hoffman, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City), for Defendant-Appellant.

Before: WINTER, Chief Judge, and NEWMAN and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Defendant, Chen De Yian, appeals from a judgment of conviction entered by the United States District Court for the Southern District of New York (Denise L. Cote, Judge ), following a conditional plea of guilty arising from defendant's attempt to abduct and hold a person hostage until the hostage's relatives paid a sum of money to secure the victim's release. The defendant pled guilty to (1) violating 18 U.S.C. § 1203, the Act for the Prevention and Punishment of the Crime of Hostage-Taking ("Hostage Taking Act"), Pub.L. No. 98-473, Title II, § 2002(a), 98 Stat. 2186 (1984), and (2) carrying a firearm in relation to the hostage taking in violation of 18 U.S.C. § 924(c). The district court sentenced the defendant to imprisonment for 147 months followed by supervised release for five years and a special assessment of $100. Pursuant to the plea agreement, defendant seeks review of the district court's denial of his motion to dismiss the hostage taking charge. See United States v. Chen De Yian, 905 F.Supp. 160, 161-62 (S.D.N.Y.1995). The defendant renews his arguments before the district court that the Hostage Taking Act (1) exceeds Congress's Article I authority, (2) violates the principles of federalism embodied in the Tenth Amendment, and (3) effects a denial of Equal Protection as guaranteed by the Fifth Amendment. We affirm.

I. BACKGROUND

The counts to which defendant pled guilty arose from his unsuccessful efforts to abduct Chan Fung Chung in order to force the victim's family to pay ransom to obtain his release. The indictment alleges that in or about May 1991 Chen and his co-conspirators met in New York City to discuss and plan the seizure of Chan Fung Chung. On April 24, 1992, Chen and his co-conspirators attempted to force Chan Fung Chung into an automobile on East 13th Street in Manhattan. The defendants' attempt to abduct the victim was thwarted by a firefighter and an off-duty police officer who heard the victim's cries. Although his co-conspirators escaped, Chen was arrested by New York City police officers with a .30 caliber handgun in his possession. Following the arrest, Chen pled guilty in state court to weapons-use charges and served 18 months in state prison. Subsequently, Chen was indicted on federal charges relating to the attempted abduction as well as two homicides in Virginia which were part of an alleged murder-for-hire scheme.

After the district court denied the defendant's motion to dismiss the hostage taking counts on constitutional grounds, the defendant entered into a plea agreement with the government. On November 22, 1995, Chen entered a plea of guilty to two counts of the multi-count indictment, including the only count at issue in this appeal: the violation of the Hostage Taking Act, 18 U.S.C. § 1203. Under the plea agreement, Chen preserved his right to appellate review of the district court's decision that 18 U.S.C. § 1203 was constitutional.

II. DISCUSSION

A. The Hostage Taking Act

On April 26, 1984, President Reagan proposed legislation to Congress to combat international terrorism. See Message from the President of the United States Transmitting Four Drafts of Proposed Legislation to Attack the Pressing and Urgent Problem of International Terrorism, H.R. Doc. No. 98-211, 98th Cong., 2d Sess. (1984) ("Presidential Message"). This proposal included a predecessor version of the Hostage Taking Act. Id. at 5-9. The legislation was designed to implement the International Convention Against the Taking of Hostages, Dec. 18, 1979, T.I.A.S. No. 11,081 ("Hostage Taking Convention" or "Convention"), ratified by the Executive in 1981, see Presidential Message at 2. The Convention binds the signatories to take specific steps to adopt "effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism." Hostage Taking Convention, preamble, T.I.A.S. No. 11,081. In particular, the signatories agreed that

[a]ny person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offense of taking of hostages ... within the meaning of this Convention.

Id. art. 1. The signatories also agreed to make hostage taking punishable in accordance with the deep gravity of the offense. See id. art. 2. Presumably to accommodate jurisdictional concerns, the terms of the Convention are inapplicable if a covered offense was committed within a single nation, the hostage and the alleged offender are nationals of that nation, and the alleged offender is found within the territory of that nation. Id. art. 13.

Pursuant to its obligation under the Convention, in late 1984, Congress passed, and the President signed, the Hostage Taking Act, which provides in pertinent part:

(a) Except as provided in subsection (b) of this section, whoever, 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 abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

....

(b)(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. § 1203. This statute is the focus of defendant's constitutional challenge.

B. Necessary and Proper Clause

Defendant first argues that the district court erred in holding that Congress has the authority to pass the Hostage Taking Act under the Necessary and Proper Clause of Article I, ¹ as an adjunct to the Executive's acknowledged authority under Article II to enter into treaties, with the advice and consent of the Senate. ² Chen contends that (1) the Hostage Taking Act is unconstitutional because the Hostage Taking Convention upon which it is based exceeds the Executive's authority under the Treaty Clause and (2) even if entry into the Convention is in accord with the treaty-making authority, the Hostage Taking Act is not a "plainly adapted" means of effectuating the Convention's ends and thus exceeds Congress's authority under the Necessary and Proper clause.

At the outset we note that Congress's authority under the Necessary and Proper Clause extends beyond those powers specifically enumerated in Article I, section 8. As the clause specifically states, "Congress shall have Power ... [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. Const. art. I, § 8, cl. 18. Accordingly, Congress may enact laws necessary to effectuate the treaty power, enumerated in Article II of the Constitution. See Missouri v. Holland, 252 U.S. 416, 432, 40 S.Ct. 382, 383, 64 L.Ed. 641 (1920); Neely v. Henkel, 180 U.S. 109, 121, 21 S.Ct. 302, 306, 45 L.Ed. 448 (1901); see also Louis Henkin, Foreign Affairs and the United States Constitution 204 & n.111 (2d ed. 1996)("The 'necessary and proper' clause originally contained expressly the power 'to enforce treaties' but it was stricken as superfluous.") (citing 2 M. Farrand, The Records of the Convention of 1787, at 382 (rev. ed.1966)).

1. The Treaty Power

We need not pause long over defendant's contention that entry into the Hostage Taking Convention was beyond the Executive's authority under Article II to sign (and Congress to assent to) treaties. As defendant himself acknowledges, "[t]o hold that the Treaty Power has been exceeded ... would of course be a drastic step." Brief of Defendant-Appellant at 14. His argument rests on the fundamental, but somewhat ambiguous, proposition in Asakura v. City of Seattle that the Executive's treaty power "extend[s] to all proper subjects of negotiation between our government and other nations." 265 U.S. 332, 341, 44 S.Ct. 515, 516, 68 L.Ed. 1041 (1924) (citing Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920); In re Ross, 140 U.S. 453, 463, 11 S.Ct. 897, 899, 35 L.Ed. 581 (1891); Geofroy v. Riggs, 133 U.S. 258, 266, 267, 10 S.Ct. 295 296, 297, 33 L.Ed. 642 (1890)). But, defendant argues that the Hostage Taking Convention regulates matters of purely domestic concern not touching on relations with other nations. Accordingly, he concludes that entry into the Convention was beyond the constitutional authority of the executive. Defendant is in error on two counts: (1) his overly restrictive view of the federal treaty power...