U.S. courts have subject-matter jurisdiction over criminal cases where the crimes occurred outside of the country, even when the indictment does not allege a “territorial nexus” to the United States, a federal appeals court ruled Tuesday.
The U.S. Court of Appeals for the Second Circuit rejected a jurisdictional objection made by a defendant who pleaded guilty in New York in an arms-for-narcotics sting operation out of Honduras and claimed his indictment was fatally flawed because it didn’t outline a connection to the United States.
Defendant Jamal Yousef said the flaw in the indictment was jurisdictional in nature, and his appeal thus implicates the district court’s “very authority to hear the case.”
But Judges Robert Sack (See Profile), Gerard Lynch (See Profile) and Raymond Lohier (See Profile) disagreed in United States v. Yousef, 12-4822, saying the indictment’s alleged flaw does not affect the court’s subject-matter jurisdiction.
Yousef was allegedly running an arms-trafficking organization from behind the walls of a Honduran prison in 2008 when confidential sources working with the U.S. Drug Enforcement Administration contacted his associates and set up a swap.
The confidential sources, posing as members of Fuerzas Armadas Revolucionaires de Colombia (the FARC) proposed to trade a large quantity of cocaine to Yousef in exchange for military-grade weapons—weapons that one of Yousef’s associates was led to believe were stolen from the U.S. arsenal in Iraq.
Yousef was charged in several superseding indictments in New York and, following his release from prison in Honduras in 2009, was arrested and flown to New York, where he argued there was a lack of sufficient nexus between him and the United States.
In court papers, he said the indictment made no allegation that he “had any knowledge, intention or expectation that the weapons he allegedly agreed to provide the FARC would be used to produce any effect on the United States or any U.S. nationals” and because the indictment had “not even alleged” that he had any knowledge of FARC’s activities.
Southern District Judge John Keenan (See Profile) denied the motion in 2010. Yousef moved for reconsideration in 2012 based on the fact that the prosecutors had known that the weapons supposedly stolen from Iraq did not even exist.
Keenan denied that motion as well, saying the indictment established the required nexus because Yousef believed he was selling weapons to the FARC, and that FARC was a terrorist group that had directed violent acts against the United States.
Yousef was charged in a fourth superseding indictment and pleaded guilty on May 4, 2012 to a count of providing material support to a foreign terrorist organization. Keenan ordered him to serve 12 years in prison.
In the circuit, following oral argument on Dec. 13, 2013, Sack wrote the court’s opinion that was issued Tuesday.
Sack started with the “well settled” point that a defendant waives all non-jurisdictional challenges when he pleads guilty. He then moved on to cite case law holding that due process requires there be “sufficient nexus between the defendant and the United States” for U.S. criminal statutes to be applied extraterritorially. United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011).
“Yousef maintains that the due process requirement of a territorial nexus is just such a non-waivable jurisdictional question,” he said. “We conclude that it is not.”
Under 18 U.S.C. §3231, he said, federal courts have subject-matter jurisdiction over federal criminal prosecutions and the only way a defendant who pleads guilty can win dismissal of the indictment on appeal is if the face of the indictment fails to charge a federal offense.
“Defects in an indictment short of a failure to charge all of the statutory elements do not undermine subject-matter jurisdiction, and do not implicate the power of the federal courts to decide a case,” he said.
Sack continued, saying “Even a defendant’s persuasive argument that the conduct set out in the indictment does not make out a violation of the charged statute does not implicate subject-matter jurisdiction.”
He said the indictment to which Yousef pleaded guilty “unambiguously” stated all of the necessary elements of providing material support to a foreign terrorist organization.
Yet Sack said that prior Second Circuit cases provided Yousef with “support” for his argument that subject-matter jurisdiction was implicated in extraterritorial application of U.S. laws, including Al Kassar and the prosecution of terrorist Ramzi Yousef in United States v. Yousef, 327 F.3d 56 (2d Cir. 2003).
In Al Kassar, the court referred to the nexus requirement as “jurisdictional nexus” and, in Ramzi Yousef’s case, referred to extraterritorial jurisdiction as a question of “subject-matter jurisdiction.”
But the Supreme Court, he said, “definitively rejected this analysis even before Al Kassar” in Morrison v. National Australia Bank Ltd., 130 S.Ct. 2869 (2010).
Morrison, he said, made it clear that whether a law is intended to reach overseas conduct “is a merits question that does not implicate the power of the district court to hear and decide the case.”
Melinda Sarafa, who argued for Yousef, said her client was not guilty in “the fake narcoterrorism plot” but he faced a 20-year minimum sentence had he gone to trial “and he feared he could not get a fair trial as an accused terrorist.”
“The tragedy here was there was no valid nexus between Yousef and the United States and the district court absolutely should have dismissed the case on the motion filed below,” she said.
Southern District Assistant U.S. Attorney Jeffrey Brown argued for the government.