United States v. Harcevic

• Decision Date: 09 June 2021
• Docket Number: No. 19-2755,19-2755
• Citation: 999 F.3d 1172
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Armin HARCEVIC, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

999 F.3d 1172

UNITED STATES of America, Plaintiff - Appellee

v.Armin HARCEVIC, Defendant - Appellant

No. 19-2755

United States Court of Appeals, Eighth Circuit.

Submitted: December 18, 2020

Filed: June 9, 2021

Joshua D. Champagne, Danielle Tarin, U.S. DEPARTMENT OF JUSTICE, Washington, DC, Matthew T. Drake, Kenneth Tihen, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Eastern District of Missouri, Saint Louis, MO, Joseph Palmer, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Appellate Section, Washington, DC, for Plaintiff - Appellee.

Armin Harcevic, Pro Se.

Catherine M. McDonald, Charles Davidson Swift, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, TX, for Defendant - Appellant.

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

In May 2013, Abdullah Ramo Pazara, a Bosnian native and naturalized U.S. citizen, left the United States and traveled to the Middle East to fight in the Syrian Civil War. To support the efforts of ethnic Bosnians fighting the military forces of Syrian President Bashar al-Assad, Pazara solicited aid from fellow Bosnian natives residing throughout the United States, including Armin Harcevic. Using services such as Western Union and PayPal, these individuals transferred money to Ramiz Hodzic on numerous occasions between August 2013 and September 2014. Hodzic transferred the money he collected to third party intermediaries in other countries who in turn provided the funds to Pazara and other supporters. Hodzic also purchased military supplies and shipped them to Pazara. As relevant to this appeal, Harcevic transferred $1,500 to Hodzic on September 24, 2013.

In September 2014, Pazara died fighting in Syria. A federal grand jury later indicted Harcevic and five others for supporting Pazara during his time in Syria. The detailed indictment charged Harcevic with conspiring to provide material support to terrorists (Count 1), and providing material support to terrorists (Count 3), in violation of 18 U.S.C. §§ 956(a) and 2339A. It alleged that Pazara and individuals from Montenegro and Bosnia and Herzegovina traveled to and fought in Syria, Iraq and elsewhere, with and in support of groups designated by the Secretary of State as foreign terrorist organizations ("FTOs"), see 8 U.S.C. § 1189, including Al-Qa'ida in Iraq (AQI), the Islamic State of Iraq and the Levant (ISIL), and the Islamic State of Iraq and Syria (ISIS).

Defendants moved to dismiss the indictment, arguing they were immune from prosecution because Pazara and his fellow fighters were lawful combatants in the Syrian Civil War, and the lawful combatant immunity defense is jurisdictional. The magistrate judge recommended (i) the motion to dismiss be denied, but (ii) the combatant immunity defense turned on disputed issues of fact that should be submitted to the jury at trial. Ruling on cross objections to these recommendations, the district court¹ adopted the magistrate's factual findings. However, the court concluded that the combatant immunity defense is an issue of law governed by the Third Geneva Convention Relative to the Treatment of Prisoners of War (commonly referred to as the "GPW");² that the GPW preempts the common law defense of combatant immunity referenced in United States v. Palmer, 16 U.S. 610, 635, 3 Wheat. 610, 4 L.Ed. 471 (1818), on which defendants relied in their motion to dismiss; that the parties agreed the Syrian Civil War was a non-international armed conflict; and therefore that Pazara and his fellow fighters were not lawful combatants within the meaning of Article 2 of the GPW. United States v. Hodzic, 355 F. Supp. 3d 825, 827-30 (E.D. Mo. 2019). The court relied in part on the Fourth Circuit's recent decision in United States v. Hamidullin, 888 F.3d 62 (4th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 1165, 203 L.Ed.2d 209 (2019).

After the district court denied defendants’ motion to dismiss and rejected their combatant immunity defense as a matter of law, Harcevic entered an unconditional guilty plea to the offenses charged in Counts 1 and 3. At the plea hearing, Harcevic admitted that he transferred $1,500 to Hodzic for Pazara's benefit but claimed he did not learn until after the transfer that Pazara had fought for an FTO called Jaish al-Muhajireen wal-Ansar (JMA), rather than for the Free Syrian Army engaged in a civil war against the Assad regime. When the district court asked Harcevic and counsel whether this meant there was no factual basis for the plea, Harcevic admitted he knew at the time of the transfer that Pazara's combat in Syria constituted murder and maiming outside the United States; the government agreed this satisfied a critical element of an 18 U.S.C. § 956(a) offense.

The district court then noted there was no conditional plea agreement between the parties. Harcevic's counsel stated his position that an unconditional plea would not waive Harcevic's asserted jurisdiction defense. The court asked Harcevic if he understood that he could not withdraw his plea if the appellate court disagreed with his jurisdictional argument. Harcevic acknowledged he did. The district court then accepted the plea and subsequently sentenced Harcevic to 66 months imprisonment. This appeal followed.

On appeal, Harcevic presents a number of issues, all related to his contention that Pazara's alleged status as a lawful combatant prevented the government from prosecuting him and therefore deprived the district court of subject matter jurisdiction. Reviewing the issue de novo , we conclude that Harcevic's unconditional guilty plea waived the lawful combatant immunity defense and therefore affirm. See Hamidullin, 888 F.3d at 74 (standard of review).

1. Section 2339A is a provision in Chapter 113B of Title 18, a Chapter entitled "Terrorism." Section 2339A makes it a crime to knowingly or intentionally supply "material support or resources" in violation of one of a lengthy list of statutes that includes 18 U.S.C. § 956. Section 2339A(b)(1) broadly defines "material support or resources." Section 956(a)(1) makes it a crime to "conspire[ ] with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States."

Harcevic argues that Pazara was entitled to lawful combatant immunity for his fighting in Syria, an immunity "rooted in the customary international law of war." Hamidullin, 888 F.3d at 66. In essence, the immunity grants a lawful combatant protections afforded to prisoners of war:

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Ex parte Quirin, 317 U.S. 1, 31, 63 S.Ct. 2, 87 L.Ed. 3 (1942). Given this immunity, conspiring with or providing material support or resources to others who are lawful combatants when they commit murder, kidnapping, or maiming outside the United States is, at least arguably, a defense to a § 2339A prosecution based on § 956.³

The current doctrine of combatant immunity is codified in the GPW, drafted in the wake of World War II and ratified by every country in the world, including the United States. Thus, the GPW has "the force of law in the United States." Hamidullin, 888 F.3d at 66, citing U.S. Const. art. VI, cl. 2. If Article 2 of the GPW applies to a conflict, its lawful combatants are considered prisoners of war entitled to combatant immunity. Article 4 of the GPW defines combatants entitled to the protections of Article 2 as "Prisoners of war ... belonging to one of the following categories, who have fallen into the power of the enemy."

Article 2 applies only to international conflicts between Geneva Convention signatories. Id. at 67. Article 3 then provides that, in a non -international conflict, each signatory shall provide, "as a minimum," a list of lesser protections including refraining from passing sentences that have not been pronounced by "a regularly constituted court." Federal district courts are "regularly constituted court[s]" within the meaning of Article 3. See Hamidullin, 888 F.3d at 75, citing 18 U.S.C. § 3231 ; see generally Hamdan v. Rumsfeld, 548 U.S. 557, 631-33, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) ; id. at 633-35, 126 S.Ct. 2749 (plurality opinion); id. at 728, 126 S.Ct. 2749 (Alito, J., dissenting). Thus, district courts have jurisdiction to try combatants captured during non-international armed conflicts. See 18 U.S.C. § 2338. The explicit statement in Article 3 that its protections are "a minimum" leads us to question whether the district court was correct in concluding that the GPW precludes a signatory from extending lawful combatant immunity to combatants in a specific non-international conflict. But we need not decide that issue in this case.

2. Harcevic argues on appeal that his conviction must be reversed because (i) Pazara fought for the Free Syrian Army engaged in a civil war against the Assad regime; (ii) President Obama recognized individuals fighting for the FSA as lawful combatants in the Syrian Civil War; (iii) this action of the Executive Branch granted Pazara lawful combatant immunity; and therefore (iv) the district court lacked jurisdiction over Harcevic's prosecution for supporting Pazara's combat actions.

Harcevic bases his jurisdictional argument on dicta in the concluding portion of Chief Justice Marshall's opinion in United States v. Palmer. In Palmer, the Supreme Court considered whether a federal statute criminalizing piracy on the high seas applied to a robbery committed on the high seas on a vessel belonging to a foreign state against persons who were foreign subjects. The Court concluded the...