U.S. v. Rezaq

• Decision Date: 06 February 1998
• Docket Number: No. 96-3127,96-3127
• Citation: 134 F.3d 1121,328 U.S. App. D.C. 297
• Parties: , 48 Fed. R. Evid. Serv. 1079 UNITED STATES of America, Appellee, v. Omar Mohammed Ali REZAQ, a/k/a Omar Marzouki, a/k/a Omar Amr, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1121

134 F.3d 1121

328 U.S.App.D.C. 297, 48 Fed. R. Evid. Serv. 1079

UNITED STATES of America, Appellee, v. Omar Mohammed Ali REZAQ, a/k/a Omar Marzouki, a/k/a Omar Amr, Appellant.

No. 96-3127.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 21, 1997.

Decided Feb. 6, 1998.

Appeal from the United States District Court for the District of Columbia (No. 93cr00284-01).

Robert L. Tucker, Assistant Federal Public Defender, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, Washington, DC, was on the briefs.

John F. De Pue, Attorney, United States Department of Justice, Washington, DC, argued the cause for appellee, with whom Mary Lou Leary, United States Attorney, Joseph B. Valder, Assistant United States Attorney, and Scott J. Glick, Attorney, United States Department of Justice, Washington, DC, were on the brief.

Before: WALD, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Omar Mohammed Ali Rezaq appeals his conviction on one count of aircraft piracy under 49 U.S.C. app. § 1472(n) (1994). In 1985, Rezaq hijacked an Air Egypt flight shortly after takeoff from Athens, and ordered it to fly to Malta. On arrival, Rezaq shot a number of passengers, killing two of them, before he was apprehended. Rezaq pleaded guilty to murder charges in Malta, served seven years in prison, and was released in February 1993. Shortly afterwards, he was taken into custody in Nigeria by United States authorities and brought to the United States for trial.

Rezaq raises seven issues on this appeal. He argues: (1) that the district court erred in permitting him to be prosecuted at all, as the air piracy statute under which he was prosecuted bars sequential prosecutions, and he had already been prosecuted in Malta; (2) that the air piracy statute bars the prosecution of defendants forcibly brought to the United States for the purpose of prosecution; (3) that the district court erred in applying a provision of the air piracy statute requiring that defendants receive life imprisonment (or the death penalty) if "death results" from their acts, as this provision only applies if certain additional jurisdictional requirements are satisfied; (4) that his trial was fatally tainted by the introduction of evidence relating to the passengers' deaths, and that this evidence should have been presented in a separate phase of the trial or, in the alternative, that it should have been presented in a less grisly form; (5) that publicity toward the end of his trial resulting from the crash of another airplane improperly affected the jury's deliberations; (6) that the district court erred in assessing the restitution he was to pay to his victims as part of his sentence; and (7) that the district court may have erred in its orders relating to the disclosure of classified government documents to the defense. We find none of Rezaq's arguments persuasive, and thus affirm his conviction and sentence in their entirety.

I. BACKGROUND

Rezaq did not deny committing the hijacking at trial, relying instead on the defenses of insanity and obedience to military orders. Thus, the following account of the hijacking was not contested at Rezaq's trial.

Rezaq is Palestinian, and was, at the time of the hijacking, a member of a Palestinian terrorist organization, which planned and ordered the hijacking. On the evening of November 23, 1985, Rezaq boarded Air Egypt Flight 648 in Athens. He was accompanied by two other hijackers; one of his confederates, named Salem, was the leader of the operation, and the name of the other is unknown. Shortly after the plane took off, the three produced weapons, announced that they were seizing the plane, and demanded that the captain fly it to Malta. A gun battle ensued between the hijackers and an Egyptian plainclothes sky marshal stationed on the plane, as a result of which Salem was killed and the sky marshal was wounded.

Rezaq then took charge of the hijacking. After the plane arrived in Malta, he separated the Israeli and American passengers from the others, and moved them to the front of the plane. He released a number of Egyptian and Filipino female passengers, as well as two wounded flight attendants. He then demanded that the aircraft be refueled; when the authorities refused, he announced that he would shoot a passenger every fifteen minutes until his demand was met.

Rezaq carried out his threat. He first shot Israeli national Tamar Artzi. Although he shot her twice, once in the head, she survived. Fifteen minutes later, he shot her companion, Nitzan Mendelson, also an Israeli; Ms. Mendelson died of her injuries nine days later. Rezaq then shot Patrick Baker, an American, but only succeeded in grazing his head. Two or three hours later, Rezaq shot Scarlett Rogenkamp--a United States citizen and an employee of the United States Air Force--in the head, killing her. Some time later, he shot Jackie Pflug, also an American, in the head, injuring her very seriously. Rezaq shot his victims near the front door of the plane, and either threw them or let them fall onto the tarmac; this may explain why three of the five were able to survive, either by escaping (Artzi and Baker), or by feigning death (Pflug).

In the evening of November 24th--about a day after the hijacking began--Egyptian commandos stormed the plane. The operation seems to have been a singularly incompetent one. The commandos fired indiscriminately, and set off an explosive device of some kind, as a result of which the aircraft burst into flames. Fifty-seven passengers were killed, as was the third hijacker. Rezaq was injured, and was taken, with a multitude of injured passengers, to a hospital. There, he was identified as the hijacker by passengers, members of the crew, and several of his victims.

The authorities in Malta charged Rezaq with murder, attempted murder, and hostage taking. He pled guilty, and was sentenced to 25 years' imprisonment. For reasons unclear, Maltese authorities released him some seven years later, in February 1993, and allowed him to board a plane to Ghana. Rezaq's itinerary was to carry him from there to Nigeria, and then to Ethiopia, and finally to Sudan. Ghanaian officials detained Rezaq for several months, but eventually allowed him to proceed to Nigeria. When Rezaq's plane landed in Nigeria, Nigerian authorities placed him in the custody of FBI agents, who transported him on a waiting aircraft to the United States.

Rezaq was indicted and tried for air piracy in the District Court for the District of Columbia. At trial, Rezaq invoked the defenses of insanity and obedience to military orders. In support of his insanity defense, Rezaq presented evidence that he suffered from post-traumatic stress disorder ("PTSD"). As witnesses, he called several members of his own family and three psychiatric experts; Rezaq himself also testified at length. Rezaq asserted that his PTSD sprang from numerous traumatic events he had experienced, first in the Jordanian refugee camp in which he spent much of his youth, and later in Lebanon, where he was active in Palestinian revolutionary organizations from 1978 to 1985. The Lebanese experiences he described included witnessing the killing of hundreds of refugees by Israeli forces in Beirut in 1982; witnessing the killings of the populations of entire villages; and nearly being killed in a car bombing. Rezaq's family testified that when he left Jordan he was normal, friendly, and extroverted, but that when he returned from Lebanon he was pale, inattentive, prone to nightmares, antisocial and had lost his sense of humor. Rezaq's psychiatric experts said that these changes in behavior were symptomatic of PTSD, and, based on their examination of Rezaq and on the testimony of other witnesses, they concluded that Rezaq was suffering from PTSD when he committed the hijacking in November 1985. The United States presented two psychiatric experts of its own, who testified that Rezaq's symptoms were not as intense as those usually associated with PTSD, and that Rezaq was able to reason and make judgments normally at the time he hijacked the plane.

The jury did not credit Rezaq's defenses, and found him guilty of the one count with which he was charged, aircraft piracy in violation of 49 U.S.C. app. § 1472(n) (1994). At the time of Rezaq's prosecution, that section provided (it has since been amended):

(1) Whoever aboard an aircraft in flight outside the special aircraft jurisdiction of the United States commits an "offense," as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft, and is afterward found in the United States shall be punished--

(A) by imprisonment for not less than 20 years; or

(B) if the death of another person results from the commission or attempted commission of the offense, by death or by imprisonment for life.

(2) A person commits 'an offense,' as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft, when, while aboard an aircraft in flight, he--

(A) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act; or

(B) is an accomplice of a person who performs or attempts to perform any such act.

49 U.S.C.App. § 1472(n) (1994). Because death resulted from Rezaq's commission of the offense, § 1472(n)(1)(B) applied, and the district court sentenced Rezaq to life imprisonment. (The United States had not sought the death sentence.) The district court also ordered Rezaq to pay a total of $254,000 in restitution, an amount which it found to represent the financial cost to the victims of his crime.

Rezaq's first group of arguments on this appeal all derive from the international nature of the crime of air piracy. He argues, first, that the international treaty barring air piracy prohibits sequential prosecutions for...