Defendant’s photograph was included in two photo array which was shown to a robbery victim. The first photo array contained a photograph of him taken years prior when he did not have facial tattoos, and he was not selected. A second photo array, now containing a photo of Defendant with facial tatoos, was shown to the witness, and he was selected. He was the only person in the second photo array that showed facial tattoos. The hearing evidence established that the witness based his identification solely on the tattoos. The trial court denied the motion to suppress, finding that the witness and the Defendant were sufficiently known to each other to remove any suggestive taint.

The Appellate Division reversed, finding that the record did not sufficiently support the reliability of the identification and substantial likelihood of irreparable misidentification existed.

The case is State v. Donnell S. Perry

Read the decision HERE:

State v. Donnell Perry

 

Defendant was convicted of Aggravated Manslaughter and weapons offenses after trial. In his petition for Post-Conviction Relief, he set forth a claim that his attorney failed to interview or present his alibi witnesses at trial. The petition contained affidavits from the alibi witnesses, who affirmed they were with Defendant at the time of the shooting.

At a motion hearing, the court stated it believed that Defendant’s claim that he had told his trial counsel about his alibi witnesses was “extremely improbable,” and the court inferred from trial counsel not presenting an alibi defense that “it wasn’t there to present.” The court discredited the affidavits from the alibi witnesses.

The Appellate Division reversed, finding that the court made credibility determinations without first conducting an evidentiary hearing. The case was remanded for a hearing.

The case is State v. Kenneth Boddie

Read the decision HERE:

State v. Kenneth Boddie

The State appeals the trial court’s dismissal of two Middlesex County indictments charging defendant with committing an armed robbery in Perth Amboy, conspiracy, and firearms possessory offenses. The court dismissed those charges because defendant had already pled guilty and been convicted in Monmouth County to having illegally possessed firearms in Asbury Park, weapons that were confiscated after the robbery in Perth Amboy occurred.

In particular, the victim of the robbery identified defendant as having brandished a silver or gray handgun and wearing a shoulder holster. Five days after the robbery, police officers executed a warrant for defendant’s arrest issued by a judge in Middlesex County. The officers found defendant in a home in Monmouth County, along with two guns, one of which was silver or gray in color, and a shoulder holster.

The trial court reasoned that the Monmouth County and Middlesex County charges were sufficiently related to require them to be pursued in a single coordinated prosecution. Consequently, the court ruled the State’s failure to combine the charges before the entry of the judgment of conviction in Monmouth barred his later prosecution in Middlesex.

The issues on appeal concern principles of mandatory joinder, double jeopardy, and continuing offenses. Applying those principles, the panel partially affirms the trial court’s dismissal order with modification, reverses the order in part, and remand the matter for trial on certain counts of the indictments in Middlesex County. More specifically, and subject to certain caveats detailed in this opinion, the Middlesex prosecution on the armed robbery and conspiracy-to-rob counts is reinstated, but the weapons possession counts remain dismissed.

The case is State v. Hassan Reid Docket # A0985-17

Read the decision HERE:

 

State v. Hassan Reid – a0985-17

Third Department Roundup – 8/8/2018

Below is the Third Department Roundup brought to you by Mike Baker, Esq.

Mike always does a fantastic job rounding up the cases from Upstate New York

Thanks Mike!

People v Wilson – http://decisions.courts.state.ny.us/ad3/Decisions/2018/107516-107517.pdf

Defendant convicted after trial of burglary in the first degree (two counts), rape in the first degree (two counts), criminal sexual act in the first degree (two counts), aggravated sexual abuse in the third degree (two counts) and robbery in the first degree and convicted after plea to burglary in the second degree. While the Court upheld the convictions, the court remitted the matter to County Court as to one of the burglary first charges and reversed judgment on the plea on the burglary second charge.

As to a burglary first charge, the Court found counsel to be ineffective for not requesting a Frye hearing on the admissibility of “TrueAllele” DNA evidence. “At the time of defendant’s pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program. “[citations omitted]. The Court opined that had counsel challenged the opinion and had the “TrueAllele Casework system been found to be unreliable after a Frye hearing, [the expert’s] testimony would have been rendered inadmissible, which, in turn, would have weakened the People’s case against defendant.” Since counsel “had everything to gain and nothing to lose by challenging the admissibility of…[the] expert testimony” [internal quotations omitted], this is “one of those rare instances in which defense counsel’s sole failure – in an otherwise proficient representation – constituted ineffective assistance of counsel”. Therefore, the Court held “judgment in abeyance and remit the matter to County Court for a posttrial Frye hearing to consider the reliability of the TrueAllele Casework system as it was when the analysis was performed in 2013 and report back on its findings.”

As to the plea, the Court found that the defendant did not knowingly, voluntarily and intelligently enter into his plea because County Court failed to advise him that he would be subject to a period of postrelease supervision before accepting his plea or at any other time prior to imposing his sentence.” Judgment reversed.

People v Gretzingerhttp://decisions.courts.state.ny.us/ad3/Decisions/2018/108676.pdf

Defendant convicted after trial of criminal possession of a forged instrument in the second degree and sentenced to four months in jail and five years of Probation. Counsel successfully stayed execution of the judgment pending appeal (2017 NY Slip Op 86750(U) (2017)) and was successful in overturning the decision by County Court to impose a sentence of incarceration based on “the circumstances surrounding the commission of the crime and [the] defendant herself are extraordinary” and reduced “her sentence to time served”. Matter remitted.

Defendant pled guilty to Assault in the Second Degree and Assault in the Third Degree. During the plea colloquoy, the Defendant insisted he attacked the complainant in self-defense after the complainant pulled a gun out on him. The court did not ask the Defendant any questions about self-defense and he was later sentenced.

The Second Department reversed and vacated the guilty plea. The Appellate Division held that when the defendant’s allocution casts doubt on his guilt or calls into question the voluntariness of the plea, the court has a duty to inquire further. Because the trial court failed to do so here, the plea was invalid.

http://www.courts.state.ny.us/courts/ad2/Handdowns/2018/Decisions/D56352.pdf

Felipe de Jesus Corona‑Verbera (“Corona Verbera”) was involved with the Sinaloa Cartel, one of the largest drug‑trafficking operations in Mexico in the late 1980s. He allegedly designed a sophisticated, 200‑foot‑long tunnel between Agua Prieta, Mexico, and a warehouse in Douglas, Arizona. That the tunnel was used for drug‑trafficking is evidenced by the 2,037 pounds of cocaine found at the same time. Corona Verbera was first charged in 1990, and there were indictments in 1995 and 2001. He arrested in Mexico in 2003, and extradited to the U.S. Eventually, after many delays, he was convicted in 2006 of various drug‑related offenses, and now appeals.

The U.S. Court of Appeals for the Ninth Circuit affirms. One of Corona Verbera’s challenges on appeal is that his Sixth Amendment right to a speedy trial was violated because the U.S. government did not timely seek his extradition from Mexico.

The Court agrees that an almost eight‑year delay between indictment and arrest is presumptively prejudicial. However, the Court does not find a duty upon the government to seek swift extradition.

“Whether or not our government is required formally to seek extradition and execute an arrest warrant when it believes extradition is futile is an issue of first impression in this Circuit. The Second Circuit addressed the issue in United States v. Blanco, 861 F.2d 773, 778 (2d Cir. 1988). In Blanco, the court held that seeking extradition of a defendant from Colombia would have been futile and “[d]ue diligence does not require the government to pursue goals that are futile.” Id. We agree with the Second Circuit and hold that where our government has a good faith belief supported by substantial evidence that seeking extradition from a foreign country would be futile, due diligence does not require our government to do so.” [Slip op. 8]

Here, the government presented testimony by Agent Grant Murray that Mexico did not extradite its citizens on drug charges until the late 1990s. Thus, any attempts to seek Corona Verbera’s extradition would have been futile. Even a defense expert agreed that Mexico did not extradite its citizens between 1980 and 1996. The government did, however, enter him into the National Crime Information Center (NCIC) computer system.

Therefore, the Court concludes that “that the government exercised due diligence in this case. Substantial evidence supports the government’s assertion that extradition from Mexico on drug related charges prior to 2002 was extremely rare. The futility of extradition, combined with the government’s entry of Corona‑Verbera into NCIC and border stop computers, and the airing of the Most Wanted and Unsolved Mysteries segments, indicate that the government did not simply forget about Corona‑Verbera. Rather, after extradition became more likely in 2002, the government obtained an arrest warrant and diligently sought extradition. Consequently, the reason for delay weighs against dismissal.” [Slip op. 10]

Finally, the Court rejects Corona Verbera’s argument that his 18‑year sentence violates the terms of his extradition. The U.S. Ambassador had assured Mexico that the U.S. would not seek a death sentence or life imprisonment. Corona Verbera argues that, because he is 53 years old, the 18‑year sentence is effectively a life sentence. Also, Articles 18 and 22 of the Mexican Constitution prohibit such punishments. Such cruel and extreme punishment violates the U.S.–Mexico Extradition Treaty.

The Court disagrees. “Neither our Ambassador’s letter nor the Treaty itself mention any prohibition against a sentence imposing a precise term of years. Likewise, no mention is made of “unusual or extreme punishment” or any equivalent thereof. See Extradition Treaty Between the United States of America and the United Mexican States, U.S.–Mex., May 4, 1978, 31 U.S.T. 5059. Accordingly, the simple answer to Corona‑Verbera’s argument is that he was not sentenced to life in prison. He was sentenced to eighteen years in prison, with credit for more than four years served. Moreover, his projected release date is at the age of sixty‑four.” [Slip op. 18]

Citation: United States v. Corona‑Verbera, No. 06‑10538 (9th Cir. December 7, 2007).

In case where district court admitted evidence allegedly in violation of the Mutual Legal Assistance Treaty (MLAT) between the U.S. and The Netherlands, obtained after The Netherlands denied U.S. request for assistance, Second Circuit finds that evidence was not within scope of MLAT and must only comply with U.S. law, not foreign law

Henk Rommy, a Dutch citizen who ran a large international drug ring, was convicted of importing the drug “ecstasy” (MDMA) into the U.S. The conviction was in part based on the testimony of his co‑conspirators and recorded conversations with an informant and an undercover agent.

In early 2000, Dutch Authorities notified the Drug Enforcement Agency (“DEA”) about plans to smuggle large amounts of ectasy pills to New York. Based on the Mutual Legal Assistance Treaty (“MLAT”) between the two countries (Treaty on Mutual Assistance in Criminal Matters, June 12, 1981, U.S.‑Netherlands, 35 U.S.T. 1361, T.I.A.S. No. 10,734). The DEA interviewed the Dutch Authorities’ confidential informant and then, based on the MLAT, wanted to use him to introduce Rommy to an undercover agent, Mark Grey, and record the resulting conversations. Dutch Authorities denied the request.

The DEA nevertheless went ahead and used the confidential informant to put agent Grey in touch with Rommy. Between October 2001 and March 2003, DEA agents in New York recorded telephone conversations between the informant, Agent Grey and Rommy in The Netherlands about smuggling ectasy into New York. In March 2003, Rommy met with the informant and Agent Grey in Bermuda. There, Rommy spoke openly about his experience in drug trafficking, and explained the origin of the ectasy pills. U.S. authorities video‑taped the meeting and subsequently requested Spanish authorities to arrest and extradite Rommy. He was convicted in U.S. district court for the Southern District of New York.

Rommy appeals his conviction, claiming, inter alia, that the district court erred in admitting evidence obtained in violation of the MLAT between the U.S. and The Netherlands. In particular, Rommy challenges the district court’s failure to suppress the recorded telephone conversations and the video‑taped Bermuda meeting as violations of the MLAT.

The U.S. Court of Appeals for the Second Circuit affirms the conviction.

The Court disagrees with Rommy. “First, Rommy cannot demonstrate a treaty violation. The [MLAT] … provides various means for the governments of the two countries to provide legal assistance to one another in criminal matters, … It also places certain limitations on how information obtained pursuant thereto may be used. … By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:”

“‘Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.’”

“… This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others’ countries. To the contrary, it means that, when securing evidence without MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable ‘domestic laws.’ …”

“Thus, when DEA agents proceeded to use [the] confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. … The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that “federal law governs the admissibility of evidence in a federal criminal trial”) … Rommy makes no claim on appeal that the DEA’s undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.” [Slip op. 24‑35]

Further, the MLAT does not appear to create individual rights. There is a general presumption against individual enforcement rights. Absent treaty language conferring individual enforcement rights, treaty violations are handled by diplomatic means. Sometimes sovereign nations decide to overlook such treaty violations.

In this case, it is clear that the MLAT signatories did not intend to create individual rights. Article 18, subsection 2, specifically states that “the provisions of this Treaty shall not give rise to a right on the part of any person to take any action in a criminal proceeding to suppress or exclude any evidence.”

Rommy then points to MLAT Article 2, subsection 2, which states that “[t]he Requesting State shall not use any evidence obtained under this Treaty … without the prior consent of the Requested State.”

Here, The Netherlands denied the U.S. request under the MLAT. Therefore, the evidence is not subject to the MLAT Article 11. The admissibility of this evidence is governed solely by U.S. domestic law.

Consequently, Rommy’s argument for suppression of the evidence lacks any foundation in the text of the MLAT, and district court properly denied it.

Citation: United States v. Rommy, No. 06‑0520‑cr (2d Cir. November 5, 2007).

West Virginia district court denies request from Ireland for the extradition of a U.S. citizen accused of assisting in suicide; dual criminality requirement of the U.S.–Ireland extradition treaty was not met; although the court recognizes that dual criminality could potentially be satisfied by the existence of substantially comparable laws in a “preponderance” of the states, there was no consensus in the laws of the U.S. states as to assisted suicide

The following district court case concerns Ireland’s request for the extradition of the Reverend George Exoo of the “Compassionate Chaplaincy Foundation,” an organization that assists people who wish to commit suicide. Such has been termed “suicide tourism” by critics. More information about the background of this matter is available at www.compassionate‑chaplaincy.com.

The United States initiated an action for the extradition of American citizen George Exoo to Ireland. The Dublin Metropolitan District Court issued a Warrant to Arrest Exoo on May 21, 2004, based upon information provided by a police detective that Exoo (1) aided and abetted and (2) counseled the suicide of an Irish woman, Ms. Toole, in violation of Irish law. That law provides that “a person who aids, abets, counsels or procures the suicide of another . . . shall be guilty of an offense and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” Section 2(2) of Ireland’s Criminal Law (Suicide) Act, 1993.

 

Exoo was affiliated with an organization known as the Compassionate Chaplaincy Foundation which provided assistance to dying people. Exoo, in his position as a minister, provided instruction and spiritual support for people seeking to end their own lives. In 2002, Exoo traveled to Ireland after some correspondence with Ms. Toole, a woman suffering health problems who had attempted and failed at suicide once before. Ms. Toole paid for Exoo’s traveling expenses. On January 25, he was with Ms. Toole when she took unspecific pills and out on a mask that supplied her with helium, not oxygen. She soon asphyxiated, and Exoo left the country without notifying authorities of her death. In 2007, a warrant was issued in the U.S. and Exoo was arrested. The court subsequently held a hearing to determine where extradition of Exoo to Ireland was permissible.

Under the 1983 extradition treaty between the United States and Ireland, “An offense shall be an extraditable offense only if it is punishable under the law of both Contracting Parties by imprisonment for a period of more than one year, or by a more severe penalty¼ Extradition shall also be granted for attempt and conspiracy to commit, aiding, abetting, counseling, procuring, inciting, or otherwise being an accessory to the commission of [such an offense that is punishable under the law of both states].” The treaty further stipulated that it “adopts the modern practice of permitting extradition for any crime punishable under the laws of both contracting Parties for a minimum period,” and that the doctrine of dual criminality should be interpreted liberally under it.

To extradite Exoo, the Court would have to determine, among other things, whether “in consideration of the offenses with which he is charged in Ireland, [Exoo] is extraditable under the ‘dual criminality’ provision contained in Article II of the Treaty. Under this provision, the Court must determine whether the offenses with which [Exoo] is charged in Ireland are also punishable under the law of the United States by imprisonment for a period of more than one year or by a more severe penalty.” [pg. 5]

“To determine whether dual criminality exists as between the law of Ireland and the law of the United States, the Court must look to federal law first. If there is no corresponding federal law, then the Court must look to the law of the State where [Exoo] is found. If there is no corresponding law in the State where [Exoo] is found, then the Court must look to the law of the preponderance or majority of States.” [pg. 5–6] These laws need not be identical between states, merely similar. In Exoo’s case, the proper inquiry was first into Federal and West Virginia law, neither of which possessed laws that would satisfy the duality requirement. However, the United States in its memorandum maintained that a preponderance of the States criminalize assisted suicide, and alleged that 39 have statutes forbidding such acts and 29 of those attach aiding and abetting liability to providing assistance in any form to the suicide of another.

In June 2007, the Court held an Extradition Hearing. “Essentially, the question presented was¼ whether the [Extradition Treaty between the US and Ireland] permitted dual criminality to be assessed in consideration of the law of a preponderance of the States and, if so, [did] it appeared probable that dual criminality does not exist as between the law of Ireland and the law of a preponderance of the States¼ [L]egal research indicated that several Courts have stated that, absent duality as between the law of the requesting State and federal law and the State where the relator is found, the Treaty language would permit an assessment of dual criminality in view of the law of a preponderance of the States.” [pg. 8]

At the hearing, both sides presented evidence on the differing assisted suicide laws of various states and the status of assisted suicide at common law where no statute existed. While the Government maintained that a majority of states had statutes criminalizing assisted suicide and also recognized aider and abettor liability for such acts, Exoo argued that not only had the Government failed to show a majority trend among the various states, even if it had, majority alone was not enough. Instead, the requisite for a finding of duality under a “preponderance” of state laws was “consensus” among them.

At the hearing, the court emphasized that extradition treaties were to be interpreted liberally, and this applied as well when determining if dual criminality exists when there is no comparable federal or State of asylum enactment. In order to make such a determination, it stated, the court must compare the laws of the country requesting extradition and the fifty States to determine if the conduct charged in the requesting country is punishable in a preponderance of the States. [pg. 17]

In the court’s determination of the meaning of applicable laws, it noted that, in general, the law of the United States and Ireland are conceptually consistent in defining aiding and abetting. In then turned to a comparison of the assisted suicide laws of Ireland and the 50 states, in order to determine “the extent to which the States’ laws are ‘substantially analogous’, ‘relate to the same general offense’ or involve conduct which is criminal in both countries.” [pg. 21]

After conducting this comparison, the court found there was no dual criminality under the “preponderance of the states” standard, and extradition was not permissible. The State Court decisions analyzed by the court in making its comparison indicated that the strong majority of the States’ statutes would not be “substantially analogous” for duality purposes. “Utilizing as broad a notion as possible of what legally constitutes ‘aiding’ and ‘causing’ in order to conform to the liberality requirements of the Treaty and the law, the Court [found] that the laws of the 25 States set forth in the first category incorporate both aiding and causing suicide and therefore included conduct such as Exoo’s indirect, secondary participation in Ms. Toole’s suicide.” [pg. 30]

However, the Court also finds that 25 States did not have laws which were “substantially analogous,” and as such, the Court could not find that aiding and abetting and counseling suicide as charged in Ireland are generally recognized as criminal in the laws of the States, and extradition was denied.

Citation: In the Matter of the Extradition of George David Exoo, 5:07‑0059 (S.D.Wv. 11/26/2007).

Relying in part on study of similar laws in twenty other nations including United States, Germany’s highest court upholds German law criminalizing incest, inter alia, to prevent genetic harm to innocent offspring

A couple had adopted Patrick S. (Defendant) when he was four years old. After spending many years in foster care, he first met his sister K. in 2000 when she was 16 years old and he was 24. K has now borne four children sired by Appellant. The lower court convicted and sentenced him for the crime of incest. It also found that the Appellant had physically attacked K at least once and that K suffers from a mild form of mental illness. Appellant duly filed an appeal.

On February 26, 2008, the Federal Constitutional Court (Bundesverfassungsgericht or BVG), Germany’s highest Court, rejected Defendant’s constitutional challenges to Section 173, & 2, s. 2, of the Criminal Code (StGB), which prohibits sexual relations between siblings.

The BVG gave considerable weight to a court‑ordered study prepared by the Max Planck Institute for Foreign and International Criminal Law. The Study surveyed the incest laws of 20 countries, and concluded that sexual intercourse between siblings is a criminal offense in 13 of the 20 countries surveyed. The Study notes that the statutes of some U.S. states go so far as to authorize life sentences for this offense.

On the other hand, incest as such is not a crime in China, the Russian Federation, Turkey, Spain, France, The Netherlands and Ivory Coast. There are, however, other legal sanctions in the laws of these seven countries hostile to the mating of siblings such as a bar against marriage between siblings and the non‑recognition of children from incestuous relationships.

In particular, the Court upholds the constitutionality of Section 173 on three bases. First, the statute does not seriously restrain an individual’s right to sexual self‑determination. The law is limited to barring sexual intercourse between siblings.

Secondly, Section 173 seeks to foster lawful marriages and normal familial relationships. Scientific studies report that incestuous relationships seriously damage families and social relations. For example, they bring about overlapping family relationships and disruption to traditional family roles. Moreover, eugenic considerations support the ban because recessive genes carry an increased risk of harm to incestuous offspring.

Finally, the built‑in flexibility of Section 173 meets the constitutional test of proportionality. In cases of sibling incest where jail time seems inappropriate, for instance, the courts have the discretion to dismiss the charges, or to modify the sentence for special considerations or to impose no criminal punishment at all.

Citation: Bundesverfassungsgericht, Beschluss vom 26. Februar 2008, 2 BvR 392/07.

Fourth Circuit affirms criminal conviction of U.S. civilian CIA contractor for causing death of Afghan detainee at U.S. base in Afghanistan by repeated kicks and beatings, based on recent statutory extensions of special maritime and territorial jurisdiction federal courts

David Passaro (Defendant) was a civilian Central Intelligence Agency (CIA) contractor in Afghanistan when he allegedly assaulted and killed Abdul Wali in 2003 at Asadabad Firebase, Afghanistan. U.S. and coalition forces had captured the Asadabad Firebase in late 2001 by. Defendant, a former special forces medic, arrived in 2003, when the base was the target of rocket attacks. U.S. forces suspected that Afghan national Abdul Wali had organized those rocket attacks.

 

Wali surrendered voluntarily and Defendant proceeded to interrogate him for two days. Defendant’s “techniques” of persuasion included throwing Wali to the ground; striking him; hitting him with a large flashlight; and kicking him in the groin. At the end of the second day of mistreatment, Wali collapsed and died.

A North Carolina federal jury found Defendant guilty of the fatal assaults. Defendant argues on appeal, inter alia, that the U.S. courts lacked criminal jurisdiction over alleged assaults at U.S. Army outposts in Afghanistan. The U.S. Court of Appeals for the Fourth Circuit, however, affirms.

In this case, the Government based criminal jurisdiction on the special maritime and territorial jurisdiction statute 18 U.S.C. § 7 (2006). It extends federal criminal jurisdiction over certain crimes that states have been traditionally regulating. Territorially, it extends to federal enclaves such as military bases, federal buildings, national parks, the high seas within U.S. admiralty and maritime jurisdiction, as well as to offenses committed on aircraft and spacecraft.

In 2001, Congress added another subsection to § 7 through the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107‑56, § 804, codified at 18 U.S.C. § 7(9) (2006). It extends special maritime and territorial jurisdiction to “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership …”

The question here is whether this Section enlarges a federal court’s jurisdiction to crimes allegedly committed at the Asadabad Firebase in 2003. In order to determine the Section’s meaning and congressional intent, the district court focused on the statutory terms “premises” and “mission.” The district court then found jurisdiction over the alleged crime committed in Asadabad in 2003. It reasoned that the U.S. has been conducting a military mission in Afghanistan since late 2001, and the activities at the Asadabad Firebase form part of that larger longstanding mission.

The Court of Appeals, however, considers this construction inadequate. Instead, it construes § 7(9) to apply only to fixed locations by stressing the importance of the terms “mission” and “premises.” The fact that Congress placed subsection 9 within § 7 which only refers to more or less fixed locations supports this interpretation. Congress included “military mission” in a particular list of missions such as diplomatic, consular, and military missions, thus indicating that it refers to permanent locations.

The Court then explains. “We turn then to the question of whether, by June 2003, the ‘premises’ of Asadabad constituted a United States ‘military mission’ so as to render it within the criminal jurisdiction of a federal district court.”

“Clearly, long‑established and permanent U.S. military bases abroad, e.g., [the] Naval Air Facility Atsugi in Japan and [the] Ramstein Air Base in Germany, constitute ‘premises’ of a ‘military mission’ under § 7(9). These bases are the straightforward ‘military’ analogue to embassies, [as well as to] the ‘diplomatic’ and ‘consular’ missions plainly within § 7(9)’s scope.”

“On the other hand, we doubt that § 7(9) reaches so broadly as to encompass any area that U.S. soldiers occupy, no matter how temporary or mobile their presence. For example, we agree with [Defendant] that § 7(9) would not reach any piece of Afghan soil on which a soldier ‘pitches his pup tent.’ …”

“In cases that fall between these two extremes, courts must consider a number of common‑sense, objective factors to determine whether a particular location qualifies as the ‘premises’ of a United States ‘military mission’ for purposes of § 7(9). Relevant factors include [1] the size of a given military mission’s premises, [2] the length of United States control over those premises, [3] the substantiality of its improvements, [4] actual use of the premises, [5] the occupation of the premises by a significant number of United States personnel, and [6] the host nation’s consent (whether formal or informal) to the presence of the United States. This list surely does not exhaust every factor relevant to determining § 7(9)’s reach; nor is any [single] factor a prerequisite for jurisdiction. But these factors do bring to bear relevant, objective considerations in resolving this question.” [Slip Op. 9‑10]

The Court then applies these elements to the case at bar. Asadabad in fact does possess all the qualities of a substantially permanent U.S. base abroad, and thus falls within the ambit of § 7(9). First, as to size, Asadabad is a substantial facility, covering about 25 acres with a 10‑foot mud wall around it. Second, by the time Defendant arrived, U.S. forces had controlled Asadabad for 18 months, thus suggesting a likelihood of permanent control. Third, as to permanence and substance, U.S. forces improved and fortified Asadabad by adding buildings, power generators, and plumbing. Fourth, as further proof of permanence, the U.S. used Asadabad to conduct military operations just as they would other facilities in Afghanistan and around the world.

Citation: United States v. Passaro, 577 F.3d 207 (4th Cir. 2009).

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