U.S. v. Reumayr

• Decision Date: 10 January 2008
• Docket Number: No. 1:99-CR-01338-BB.,1:99-CR-01338-BB.
• Citation: 530 F.Supp.2d 1210
• Parties: UNITED STATES of America, Plaintiff, v. Alfred Heinz REUMAYR, Defendant.
• Court: U.S. District Court — District of New Mexico

530 F.Supp.2d 1210

UNITED STATES of America, Plaintiff, v. Alfred Heinz REUMAYR, Defendant.

No. 1:99-CR-01338-BB.

United States District Court, D. New Mexico.

January 10, 2008.

COPYRIGHT MATERIAL OMITTED

Louis E. Valencia, Sasha Siemel, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

Marc M. Lowry, Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Albuquerque, NM, Mark H. Donatelli, Rothstein Law Firm, Trace L. Rabern, Santa Fe, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

BRUCE D. BLACK, District Judge.

THIS MATTER comes before the Court on Defendant Reumayr's August 31, 2007 Motion to Dismiss Counts II Through VIII Because Alleged Conduct is Not a Crime [Doc. 107]. In the relevant counts, Reumayr is charged with attempting to destroy the Trans-Alaska Pipeline by means of an explosive, attempting to destroy an energy facility, aiding and abetting, as well as possession of a firearm in furtherance of a crime of violence. He now seeks to dismiss these counts of the indictment on the ground that the Court lacks subject matter jurisdiction. Reumayr, a Canadian citizen, argues that because he was at all times physically located in Canada and all the relevant conduct occurred in. Canada, he cannot be charged with violations of United States law. Having reviewed the submissions of the parties and the relevant law, the Court finds that Defendant's motion should be DENIED.

Background

The Trans-Alaska pipeline is one of the largest pipeline systems in the world, stretching from Prudhoe Bay to Valdez, the northernmost ice-free port in North America.¹ Prudhoe Bay, the largest oil field in the United States, is responsible for producing approximately 8% of U.S. domestic oil production.² The pipeline is owned by a consortium of publicly traded petroleum companies.³

The Government charges Reumayr with attempting to destroy the Trans-Alaska pipeline using explosives in order to stop the flow of oil along the pipeline, This attack was supposedly timed to coincide with the Y2K transition, and was designed to allow Reumayr to reap enormous profits from an investment in petroleum futures. To accomplish these ends, the Government claims that Reumayr initiated email contact with James Paxton, an individual whom Reumayr met during time spent together in prison, and someone whom Reumayr knew to be an expert in explosives. Paxton was a United States citizen residing in New Mexico.⁴

In his communications with Paxton, Reumayr is alleged to have developed an increasingly detailed plan to carry out the bombing, and to have sent approximately US$3,000 in six different Canadian postal orders to Paxton, in New Mexico, for the purchase of explosives ingredients. The interactions culminated in a meeting between Paxton and Reumayr in Canada, at which Reumayr is alleged to have given Paxton explosives and unassembled explosive devices with the expectation that those devices would be assembled, armed, and placed at locations along the Trans-Alaska Pipeline selected by Reumayr. Unbeknownst to Reumayr, Paxton contacted the Government soon after Reumayr's initial contact, and functioned as a Government informant for the entirety of Reumayr's contacts with Paxton. Reumayr was arrested shortly following his meeting with Paxton, and was indicted and eventually extradited to the United States.

Reumayr contests his charges under 18 U.S.C. § 844(i), Attempt to Destroy Property by Means of an Explosive; 18 U.S.C. § 924(c), Possession of a Firearm in Furtherance of a Crime of Violence; and 18 U.S.C. § 1366(a), Attempt to Destroy an Energy Facility. He claims that Congress did not intend these statutes to extend extraterritorially, and thus they cannot reach his conduct. Reumayr additionally contends that even should this Court find that these statutes reach his extraterritorial conduct, such application would violate his Fifth Amendment due process rights due to an insufficient nexus between the United States and his conduct.⁵ The Government maintains that the Court can infer Congressional intent to apply all three statutes extraterritorially and that the nexus between the United States and Reumayr is sufficient to withstand his due process challenge. The determination of whether Congress intended § 844(i) and § 1366(a) to apply extraterritorially presents issues of first impression. The Court will address each issue in turn.

Discussion

I. Extraterritoriality

Defendant challenges the extraterritorial application of the statutes enumerated in his indictment.⁶ The analysis of whether a statute applies to conduct outside the territory of the U.S. is a two-pronged inquiry: first the court must determine whether Congress intended the statute apply extraterritorially. If the court determines that Congressional intent is present, it next evaluates whether extraterritorial application of the law accords with international law. U.S. v. Neil, 312 F.3d 419, 421 (9th Cir.2002); Brian L. Porto, Annotation, Extraterritorial Criminal Jurisdiction of Federal Courts, 1 A.L.R. Fed.2d 415 (2005).

It is well established that Congress can regulate conduct outside the territorial boundaries of the United States. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). It is equally well established that the Court must presume that Congress has not intended that a statute apply to actions outside the territorial boundaries of the United States unless Congress shows clear extraterritorial intent. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949); Sale v. Haitian Ctrs. Council, 509 U.S. 155, 173, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993). In elucidating whether Congress intended extraterritorial application of a statute, courts first look to the plain language of the statute. The court is not limited to the language of the statute, however, and may consider "all available evidence about the meaning of the statute, e.g., its text, structure, and legislative history." U.S. v. Bin Laden, 92 F.Supp.2d 189, 193 (S.D.N.Y.2000) (quoting Sale, 509 U.S. at 188, 113 S.Ct. 2549) (internal quotations omitted). The Supreme Court has additionally established an exception for criminal statutes not logically dependent on a locality for jurisdiction, and where limiting the locus of the statute to the territorial jurisdiction of the United States would severely curtail the scope and usefulness of the statute. U.S. v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922); see also Sale, 509 U.S. at 177, 113 S.Ct. 2549. When faced with such a statute the court may infer extraterritorial intent from the nature of the offense described in the statute, and need not depend upon its legislative history. Bowman, 260 U.S. at 98, 43 S.Ct. 39.⁷

Once the Court has determined whether Congress intended to apply a statute extraterritorially, it must next evaluate whether extraterritorial application comports with international law. A state may always proscribe "conduct that, wholly or in substantial part, takes place within its territory." Restatement (Third) of Foreign Relations Law § 402 (1987) (hereinafter Restatement); see also Church v. Hubbart, 6 U.S. 187, 234, 2 Cranch 187, 2 L.Ed. 249 (1804). International law recognizes five other principles of jurisdiction by which a state may reach conduct outside its territory: (1) the objective territorial principle; (2) the protective principle; (3) the nationality principle; (4) the passive personality principle; and (5) the universality principle. U.S. v. Yousef, 327 F.3d 56, 91 n. 24 (2d Cir.2003); see also, Christopher L. Blakesley, Extraterritonal Jurisdiction in M. Cherif Bassiouni (ed.), International Criminal Law 50-81 (2d ed.1999).⁸

While courts have held that ultimately Congress may override international law in choosing to extend a statute extraterritorially, Yousef, 327 F.3d at 91, U.S. v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir.1991), generally speaking courts "presume that Congress does not intend to violate principles of international law ... [and] in the absence of an explicit Congressional directive, courts do not give extraterritorial effect to any statute that violates principles of international law." U.S. v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963)).

A. Defendant's Argument Regarding A Presumption Against the Extraterritoriality of Statutes Protecting Private Individuals and their Property

As an initial matter, Defendant wishes this Court to read Bowman as creating, a presumption against the extraterritorial application of statutes that affect private rather than Government property. [Defendant's Motion to Dismiss at 8]. Defendant supports this contention by noting that Bowman states, "[c]rimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement, and fraud of all kinds, which affect the peace and good order of the community must, of course, be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard." 260 U.S. at 98, 43 S.Ct. 39. Defendant's reliance on this language is, however, misplaced. Notwithstanding the Supreme Court's language in Bowman, courts have not refused to apply the Bowman analysis to crimes against private individuals where the crime at issue implicates a security interest of the United States. See, e.g., U.S. v. Layton, 855 F.2d 1388, 1395 (9th Cir.1988) (applying Bowman to infer Congressional intent to reach murder of members of Congress abroad); U.S. v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir. 1991) (applying Bowman to...