1103
Jurisdictional Requirements--18 U.S.C. Sec. 1203(b)
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Subsection 1203(a) makes it a Federal crime to engage in hostage
taking
when the jurisdictional conditions in subsection 1203(b) are present. In
turn,
subsection 1203(b) sets forth the limits on Federal jurisdiction over the
crime
of hostage taking.
- Offenses Committed Outside the United States
- If the hostage taking occurs outside the territory of the United
States, subsection 1203(b)(1) provides for Federal jurisdiction in these
circumstances: (a) if the perpetrator or one of the hostage victims is a
national of the United States; (b) if the perpetrator, regardless of
his/her
nationality or the nationality of the hostage victim, is subsequently found
in
the United States; or (c) if the United States government is the third party
which the hostage taker is attempting to compel to take certain action.
- In United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir.
1991),
the court held that these provisions "reflect an unmistakable Congressional
intent, consistent with treaty obligations of the United States, to
authorize
prosecution of those who take Americans hostage abroad no matter where the
offense occurs or where the offender is found." That court also concluded
that
the assertion of such jurisdiction is fully consistent with norms of
customary
international law. These include the "universal" principle of
extraterritorial
jurisdiction under which a state can prosecute certain offenses recognized
by the
community of nations as of universal concern; and the "passive personality"
principle under which a state can prosecute non-nationals for crimes
committed
outside its territory against its nationals. See Yunis, 924
F.2d
at 1091.
- Further, in cases where the hostage taker is a United States
national
it is inconsequential whether the victim was a U.S. national or whether the
crime
was related to international terrorism. See United States v.
Peralta, 941 F.2d 1003, 1008 (9th Cir. 1991), cert. denied, 503
U.S.
940 (1992). Finally, although the question presented involved similar
language
in the aircraft hijacking statute, the Yunis case also suggests that
the
"subsequently found" language in § 1203 (b)(1) is applicable whenever
a
hostage taker is present in the United States, even when forcibly brought to
the
United States to stand trial on other charges. Yunis, 924 F.2d at
1092.
See also United States v. Rezaq, 908 F. Supp. 6, 7-8 (D.D.C.
1995).
- Offenses Committed Within the United States
- Article 13 of the Hostage Taking Convention states that the
Convention
"shall not apply where the offense is committed within a single state (i.e.,
country), the hostage and the alleged offender are nationals of that state,
and
the alleged offender is found in the territory of that state." Subsection
1203(b)(2) reflects the treaty limitations contained in Article 13 by
stating
that it is not an offense if the crime occurred in the United States, all
participants and victims are United States nationals, and all alleged
offenders
are found in the United States, unless the hostage taking is to compel
action by
the United States government. In practical terms, this means that an
American
robber who seizes an American cashier at a convenience store in a city in
the
United States, and who makes a demand upon a third party other than the
United
States government, and who is caught in the United States, cannot be
prosecuted
federally under § 1203(a).
- Conversely, subsection (b)(2) reflects a Congressional intent to
reach
acts of hostage taking within the United States if either the alleged
offender
or the victim is a non-United States national. This provision has withstood
constitutional challenge under the Due Process Clause of the Fifth Amendment
on
the ground that it arbitrarily classifies offenders on the basis of
alienage.
See United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir.
1995);
United States v. Yian, 905 F. Supp. 160 (S.D.N.Y. 1995). In
Lopez-Flores, the court held that the alienage classifications
contained
in the statute were "clearly intended to serve Congress' legitimate foreign
policy interests." Id. at 1475. In such cases, § 1203 plainly
extends to alien smuggling situations in which the defendant assists an
alien in
crossing an international border and then holds the alien hostage in order
to
compel relatives to make payments for the victim's release. Id. at
1475-76.
[cited in USAM 9-60.700] | |