U.S. v. Vasquez-Velasco

Decision Date25 January 1994
Docket NumberVASQUEZ-VELASC,D,No. 91-50342,91-50342
Citation15 F.3d 833
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Gregory Nicolaysen, Federal Litigation Group, Inc., Beverly Hills, California, for the defendant-appellant.

John L. Carlton, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

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

Before: FLETCHER, PREGERSON and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Javier Vasquez-Velasco was convicted in a jury trial of committing violent crimes in aid of a racketeering enterprise in violation of 18 U.S.C. Sec. 1959. Vasquez-Velasco appeals the district court's denial of his motion to dismiss for lack of subject matter jurisdiction. He also argues that his trial was improperly joined, and appeals the district court's denial of his motions for severance. Finally, he appeals the district court's imposition of a sentence greater than ten years in the absence of a special verdict. We affirm.

BACKGROUND

Vasquez-Velasco's appeal arises out of the second trial associated with the 1985 kidnapping and murders of Enrique Camarena, an American agent with the Drug Enforcement Agency ("DEA"), and Alfredo Zavala, a DEA informant. 1 The government's theory at trial was that Vasquez-Velasco and his three codefendants all acted to commit violent crimes to further their positions in the "Guadalajara Narcotics Cartel," a drug trafficking enterprise based in Guadalajara. The cartel began distributing large amounts of drugs into the United States in the early 1980's. According to the government, in 1984 and 1985 American DEA enforcement activities resulted in losses to the cartel totalling billions of dollars. As a result of these losses, the cartel engaged in a series of retaliatory actions against DEA agents in Mexico. The murders with which Vasquez-Velasco and his codefendants were charged were part of these retaliatory activities.

The circumstances underlying this trial occurred in January and February, 1985. At that time, an American citizen named John Walker was living in Guadalajara, Mexico and writing a novel. In December 1984, Alberto Radelat, a legal resident alien in the United States, travelled to Guadalajara to visit his friend Walker. Radelat was a photographer. Neither Walker nor Radelat had any apparent association with the DEA or with any drug-related activities.

On the night of January 30, 1985, members of the "Guadalajara Narcotics Cartel" gathered at a Guadalajara restaurant known as "La Langosta." The cartel members at this gathering included Rafael Caro-Quintero, Ernesto Fonseca-Carillo, and Javier Barba-Hernandez, all well-known drug dealers in Guadalajara, the appellant Vasquez-Velasco, and other members of the cartel.

That night Walker and Radelat went to the La Langosta restaurant at approximately 7:00 p.m. Soon after they entered, they were grabbed by ten to fifteen members of the cartel and beaten with fists and guns. They were subsequently carried to a storage room in the back of the restaurant while the beating continued. Vasquez-Velasco assisted in carrying and beating the two men. The two men were tortured until one of them admitted that they were police. Both were later killed in a field outside of Guadalajara. The next day Vasquez-Velasco informed Barba-Hernandez that both tourists had died. In June 1985, the bodies of Walker and Radelat were found in Primavera Park outside of Guadalajara.

A grand jury returned a Sixth Superseding Indictment charging nineteen persons associated with the cartel with various crimes performed in 1984 and 1985. Counts One and Two of the indictment charged Vasquez-Velasco with committing violent crimes in aid of a racketeering enterprise in violation of 18 U.S.C. Sec. 1959. Specifically, the indictment alleged that Vasquez-Velasco, as a member of the cartel, participated in the murders of Walker and Radelat for the purpose of maintaining and increasing his position in the drug trafficking activities of the cartel.

Vasquez-Velasco was tried with three codefendants: Juan Ramon Matta-Ballesteros, Ruben Zuno-Arce, and Juan Jose Bernabe-Ramirez. His codefendants were charged in Counts Three through Eight of the Indictment with violent acts related to the kidnapping and murder of Camarena and Zavala, but not with the murders of Walker or Radelat. 2 Vasquez-Velasco was not charged with participating in the murders of Camarena and Zavala.

Vasquez-Velasco was convicted under both counts on August 6, 1990. On May 23, 1991 he was sentenced to two consecutive terms of life imprisonment. He timely appealed to this court.

The district court exercised its jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION
I. Extraterritorial application of 18 U.S.C. Sec. 1959

Vasquez-Velasco raises four issues on appeal. First, he argues that the district court erred in ruling that Sec. 1959 applies extraterritorially. 3 We review de novo a district court's assumption of jurisdiction. United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992); 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. Extraterritoriality

"Generally there is no constitutional bar to the extraterritorial application of United States penal laws." United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993); 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). To determine whether a given statute should have extraterritorial application in a specific case, courts look to congressional intent. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 40, 67 L.Ed. 149 (1922); Felix-Gutierrez, 940 F.2d at 1204; Chua Han Mow, 730 F.2d at 1311. When faced with a criminal statute such as Sec. 1959, we may infer that extraterritorial application is appropriate from " 'the nature of the offenses and Congress' other legislative efforts to eliminate the type of crime involved.' " Felix-Gutierrez, 940 F.2d at 1204 (quoting United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.), cert. denied, 498 U.S. 826, 111 S.Ct. 80, 112 L.Ed.2d 53 (1990) (quotations omitted)). Where "[t]he locus of the conduct is not relevant to the end sought by the enactment" of the statute, and the statute prohibits conduct that obstructs the functioning of the United States government, it is reasonable to infer congressional intent to reach crimes committed abroad. United States v. Cotten, 471 F.2d 744, 751 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973) (statute that proscribes theft of government property is not logically dependent on the locality of violation for jurisdiction) (emphasis in original); see also Felix-Gutierrez, 940 F.2d at 1204. 4

In determining whether a statute applies extraterritorially, we also presume that Congress does not intend to violate principles of international law. Thus, in the absence of an explicit Congressional directive, courts do not give extraterritorial effect to any statute that violates principles of international law. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677-678, 9 L.Ed.2d 547 (1963) (quoting The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804) (court will not construe statute to apply extraterritorially where application of National Labor Relations Act to protect foreign seapersons on foreign ships would violate both a Treaty with Honduras and established principles of international law)); Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1515, 71 L.Ed.2d 715 (1982) (interpreting statute that prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty" in manner that is consistent with international executive agreements and not just treaties entered into pursuant to Article II of the Constitution); Restatement (Third) of Foreign Relations Law of the United States Sec. 114 (1987) [hereinafter "Restatement"] ("[w]here fairly possible, a United States statute is to be construed so as not to conflict with international law").

In general, international law recognizes several principles whereby the exercise of extraterritorial jurisdiction may be appropriate. These principles include the objective territorial principle, under which jurisdiction is asserted over acts performed outside the United States that produce detrimental effects within the United States, and the protective principle, under which jurisdiction is asserted over foreigners for an act committed outside the United States that may impinge on the territorial integrity, security, or political independence of the United States. 5 See, e.g., Felix-Gutierrez, 940 F.2d at 1205-06; Chua Han Mow, 730 F.2d at 1311-12 (citations omitted); United States v. King, 552 F.2d 833, 851-52 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); Restatement Sec. 402. Nevertheless, an exercise of jurisdiction on one of these bases still violates international principles if it is "unreasonable". 6 Restatement Sec. 403 cmt. a (stating that "[t]he principle that an exercise of jurisdiction on one of the bases indicated ... is nonetheless unlawful if it is unreasonable ... has emerged as a principle of international law").

Our circuit has applied this analysis to find that the extraterritorial application of the precursor to Sec. 1959 in circumstances similar to those presented by this case is consistent with Congressional intent. In Felix-Gutierrez, the defendant was charged as an...

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