United States v. Brehm

• Decision Date: 10 August 2012
• Docket Number: No. 11–4755.,11–4755.
• Citation: 691 F.3d 547
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sean Theodore BREHM, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

691 F.3d 547

UNITED STATES of America, Plaintiff–Appellee,

v.Sean Theodore BREHM, Defendant–Appellant.

No. 11–4755.

United States Court of Appeals, Fourth Circuit.

Argued: May 16, 2012.

Decided: Aug. 10, 2012.

ARGUED:Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellant. Michael Alan Rotker, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Jeffrey C. Corey, Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Ronald L. Walutes, Jr., Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia; Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Acting Deputy Assistant Attorney General, James S. Yoon, Senior Trial Attorney, United States Department of Justice, Washington, D.C., for Appellee.

Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Chief Judge TRAXLER and Judge DUNCAN joined.

OPINION

KING, Circuit Judge:

Sean Theodore Brehm, a citizen of South Africa, pleaded guilty in the Eastern District of Virginia to a federal charge of assault resulting in serious bodily injury, on condition that he be allowed to challenge through appeal the jurisdictional basis of the indictment underlying his conviction. The grand jury accused Brehm of stabbing a British subject, “J.O.,” during an altercation at Kandahar Airfield (“KAF”), while both men were employed with private contractors supporting the NATO war effort in Afghanistan.

On appeal, Brehm maintains that the indictment's reliance on the Military Extraterritorial Jurisdiction Act (“MEJA”) was misplaced, in that the statute—which Brehm admits is valid on its face—cannot be applied to him in a manner consistent with the Constitution. Brehm also asserts that the government has failed to establish a sufficient nexus between him and the United States to support the exercise of criminal jurisdiction, pointing out that, prior to his arrival in Virginia as an accused, neither he nor his victim had ever set foot in this country. For that and other reasons, according to Brehm, his prosecution does not comport with due process. As described below, we reject Brehm's challenges to his conviction and affirm the district court's judgment.

I.

KAF is a NATO-operated military base that, in 2010, was home to about 19,000 troops, more than 15,000 of which were American. Brehm was employed by DynCorp International LLC, a domestic military contractor headquartered in Falls Church, Virginia. On Thanksgiving Day, November 25, 2010, Brehm was at KAF to process arriving DynCorp employees, when he encountered J.O. The latter was an employee of Global Strategies Group, a United Kingdom entity also providing support services. J.O. had just returned from a vacation with his American wife, who was likewise employed at KAF. The two men engaged in a heated altercation concerning an ongoing and rancorous dispute, which ended calamitously with Brehm stabbing J.O. in the left arm and stomach, seriously injuring him. Afterward, Brehm was taken into custody by United States military police.

Brehm had signed a “Foreign Service Employment Agreement” with DynCorp in July 2010. The agreement provided, in pertinent part, that Brehm “has been informed of, understands and accepts that [he] may be subject to U.S. ... federal civilian criminal jurisdiction under the [MEJA] by accompanying the U.S. Armed Forces outside the United States.” J.A. 121.¹ Following the filing of a criminal complaint and issuance of an arrest warrant in the Eastern District of Virginia, a magistrate judge telephonically conducted a preliminary hearing, after which Brehm was flown to Alexandria.

The grand jury's indictment ensued on January 5, 2011, charging Brehm in Count One with assault with a dangerous weapon, in contravention of 18 U.S.C. § 113(a)(3), and in Count Two with assault resulting in serious bodily injury, as proscribed by 18 U.S.C. § 113(a)(6). The offenses described in the respective counts constitute federal crimes when committed “within the special maritime and territorial jurisdiction of the United States.” 18 U.S.C. § 113(a). The indictment also referenced MEJA, which incorporates § 113(a)(6) (and many other criminal provisions) by specifying:

Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States ... while employed by or accompanying the Armed Forces outside the United States ... shall be punished as provided for that offense.

18 U.S.C. § 3261(a). MEJA defines persons “employed by the Armed Forces outside the United States” to include employees of contractors or subcontractors of the Department of Defense (“DOD”). See id. § 3267(1)(A)(iii).

Brehm promptly filed a pair of motions seeking dismissal of the indictment. The first motion, on February 25, 2011, asserted that “Brehm's connection to the United States is so lacking” that the district court could not, “consistent with the requirements of the Due Process Clause, exercise jurisdiction under MEJA.” J.A. 19. The second, on March 4, 2011, insisted that MEJA, as applied to Brehm, was unconstitutional in that “the framers did not grant Congress the power to police routine assaults between foreigners that occur abroad and do not harm the United States.” Id. at 44. The court conducted a hearing on the motions on March 29, 2011, and it denied them both by memorandum opinion the following day. See United States v. Brehm, No. 1:11–cr–00011, 2011 WL 1226088 (E.D.Va. Mar. 30, 2011) (the “Opinion”).²

Facing trial on the indictment, Brehm agreed with the government to conditionally plead guilty to Count Two in return for, inter alia, being permitted to appeal the district court's denial of his motions to dismiss. SeeFed.R.Crim.P. 11(a)(2). On April 12, 2011, the court accepted the plea and dismissed Count One of the indictment. For his conviction on Count Two, Brehm was sentenced on July 8, 2011, to forty-two months in prison. By timely notice filed July 21, 2001, Brehm appeals.

II.

On appeal of a motion to dismiss an indictment, we review de novo the district court's legal analysis. See United States v. Pasquantino, 305 F.3d 291, 294 (4th Cir.2002). In so doing, we accept any facts found by the court as conclusive except insofar as those findings are shown to be clearly erroneous. Id. The parties to this appeal have stipulated to the material underlying facts, presenting us with pure questions of law.

III.

A.

Brehm does not contest the constitutionality of MEJA on its face. ³ Rather, he “acknowledges that under some circumstances ... Congress might have authority to criminalize acts of foreign nationals” as set forth in the statute. Br. of Appellant 30 n.3. Brehm suggested to the district court that he would have been susceptible to prosecution under MEJA had he, for example, “assaulted a member of the United States armed forces or defrauded the United States government,” J.A. 43, but he hastens to point out that such hypothetical facts are “not present here.” Br. of Appellant 30 n.3.

Accordingly, Brehm downplays his bloody encounter with J.O. as “a minutes-long fight” culminating in “a run-of-the-mill assault ... over a personal dispute in a foreign country.” Br. of Appellant 31–33. Brehm emphasizes that neither he nor the victim are American citizens, and he maintains that he “was not acting in furtherance of his DynCorp job duties when he assaulted J.O.” Id. at 35.

Insofar as the circumstances surrounding Brehm's conduct may be described as varying in some respects from the hypothetical situations he concedes manifest constitutional applications of MEJA, such distinctions produce no real difference. The enumerated powers granted Congress by Article I, Section 8 of the Constitution are of sufficient reach to encompass any of the scenarios articulated above, including Brehm's. Of particular relevance here is Congress's express authority to “raise and support Armies.” U.S. Const. art. I, § 8, cl. 12. More generally, Congress is entitled to “make all Laws which shall be necessary and proper” to adequately support our armed forces. U.S. Const. art. I, § 8, cl. 18; see Rostker v. Goldberg, 453 U.S. 57, 65, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (observing that congressional authority “to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping”).⁴ Armies, by their very nature, must be expected to operate in foreign lands, and their need for support does not end at our borders.

Contrary to the impression Brehm seeks to convey, it is not unusual that a foreign citizen is called to answer in an American court for his alleged criminal wrongdoing, as that occurs routinely with respect to crimes committed within our nation's borders. Indeed, the government dryly observed before the district court that “[t]he U.S. Bureau of Prisons is filled with foreign nationals, Your Honor.” J.A. 162. And, presumably, in the vast majority of such proceedings, the identity or citizenship of the victim matters not.

The crux of Brehm's complaint, then, cannot be that his citizenship—or that of his victim—is “foreign” vis à vis the United States, but that, against that backdrop, his alleged crime occurred in a place foreign both to him and to the prosecuting sovereign. The latter, of course, is precisely what MEJA contemplates by its specific application to “conduct outside the United States.” 18 U.S.C. § 3261(a).⁵ Furthermore, it could hardly have been unanticipated by Congress that at least some persons employed overseas by DOD contractors or subcontractors would not be American citizens.

It is Brehm's status as an employee of DynCorp that brings his actions at KAF within the...