On June 11, 1985, appellant and four other men boarded Royal Jordanian Airlines Flight 402 ("Flight 402") shortly before its scheduled departure from Beirut, Lebanon. They wore civilian clothes and carried military assault rifles, ammunition bandoleers, and hand grenades. Appellant took control of the cockpit and forced the pilot to take off immediately. The remaining hijackers tied up Jordanian air marshals assigned to the flight and held the civilian passengers, including two American citizens, captive in their seats. The hijackers explained to the crew and passengers that they wanted the plane to fly to Tunis, where a conference of the Arab League was under way. The hijackers further explained that they wanted a meeting with delegates to the conference and that their ultimate goal was removal of all Palestinians from Lebanon.
After a refueling stop in Cyprus, the airplane headed for Tunis but turned away when authorities blocked the airport runway. Following a refueling stop at Palermo, Sicily, another attempt to land in Tunis, and a second stop in Cyprus, the plane returned to Beirut, where more hijackers came aboard. These reinforcements included an official of Lebanon's Amal Militia, the group at whose direction Yunis claims he acted. The plane then took off for Syria, but was turned away and went back to Beirut. There, the hijackers released the passengers, held a press conference reiterating their demand that Palestinians leave Lebanon, blew up the plane, and fled from the airport.
An American investigation identified Yunis as the probable leader of the hijackers and prompted U.S. civilian and military agencies, led by the Federal Bureau of Investigation (FBI), to plan Yunis' arrest. After obtaining an arrest warrant, the FBI put "Operation Goldenrod" into effect in September 1987. Undercover FBI agents lured Yunis onto a yacht in the eastern Mediterranean Sea with promises of a drug deal, and arrested him once the vessel entered international waters. The agents transferred Yunis to a United States Navy munitions ship and interrogated him for several days as the vessel steamed toward a second rendezvous, this time with a Navy aircraft carrier. Yunis was flown to Andrews Air Force Base from the aircraft carrier, and taken from there to Washington, D.C. In Washington, Yunis was arraigned on an original indictment charging him with conspiracy, hostage taking, and aircraft damage. A grand jury subsequently returned a superseding indictment adding additional aircraft damage counts and a charge of air piracy.
The jury convicted Yunis of conspiracy, hostage taking and air piracy. However, it acquitted him of three other charged offenses that went to trial: violence against people on board an aircraft, aircraft damage, and placing a destructive device aboard an aircraft. The district court imposed concurrent sentences of five years for conspiracy, thirty years for hostage taking, and twenty years for air piracy.
Yunis appeals his conviction and seeks dismissal of the indictment.
Concurrent sentences of five years for conspiracy, thirty years for hostage taking, and twenty years for air piracy.
Yunis claims that the Antihijacking Act, 49 U.S.C.App. § 1472(n), and the Hostage Taking Act, 18 U.S.C. § 1203, make specific intent an element of the offenses they establish, and that the district court erred in failing to adopt jury instructions offered by the defense that would have made this clear. In appellant's view, the trial judge's instruction that Yunis could be convicted on these counts only if he acted "intentionally, deliberately and knowingly" was inadequate.
49 U.S.C. App. § 1472(n) suggests no specific intent requirement on its face, criminalizing any "unlawful" hijacking of an aircraft. Nor do judicial interpretations of related statutes support appellant's position. In fact, courts have interpreted a companion provision criminalizing domestic hijacking, 49 U.S.C. App. § 1472(i), as requiring only general criminal intent, even though (unlike section 1472(n)) it specifies that hijackers must act with "wrongful intent." See United States v. Castaneda-Reyes, 703 F.2d 522, 525 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 174, 78 L.Ed.2d 157 (1983); United States v. Busic, 592 F.2d 13, 21 (2d Cir.1978); United States v. Bohle, 445 F.2d 54, 60 (7th Cir.1971). In light of these decisions, and absent any encouragement from Congress, the court decline Yunis' invitation to graft a specific intent requirement onto the Antihijacking Act.
Yunis' claim that the Hostage Taking Act requires specific intent also fails. The statutory language suggests no intent requirement other than that the offender must act with the purpose of influencing some third person or government through the hostage taking, a point on which the jury received proper instructions. Nor is the court aware of any legislative history suggesting that Congress meant to impose a specific intent requirement. Thus, the court concludes that the trial judge's instructions on this count of the indictment accorded with law.
The court finds no merit in Yunis' objection (not raised at trial) that the district court failed to instruct the jury that specific intent is a necessary element of the crime of conspiracy. True, "the specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy." United States v. Haldeman, 559 F.2d 31, 112 (D.C.Cir.1976) (footnote omitted), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). But the jury received instructions that the government "must show beyond a reasonable doubt that the conspiracy was knowingly formed and that the defendant willfully participated in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy
Yunis further contends that, whatever level of criminal intent was required for these offenses, the district court failed to sufficiently articulate the government's burden of proving that intent. Because this alternative claim was not raised at trial, Yunis must show "plain error." FED.R.CRIM.P. 52. The instructions, however, made it abundantly clear that the government had the burden of proving the requisite intent beyond a reasonable doubt. There was no error.
Conspiracy, 18 U.S.C. § 371 (1988)
Hostage taking, 18 U.S.C. § 1203 (1988)
Air piracy, 49 U.S.C. App. § 1472(n) (1988)
United States Court of Appeals, District of Columbia Circuit
Yunis argues that the district court lacked subject matter and personal jurisdiction to try him on the charges of which he was convicted, that the indictment should have been dismissed because the government seized him in violation of the Posse Comitatus Act and withheld classified materials useful to his defense, and that the convictions should be reversed because of errors in the jury instructions.
Appellant's principal claim is that, as a matter of domestic law, the federal hostage taking and air piracy statutes do not authorize assertion of federal jurisdiction over him. Yunis also suggests that a contrary construction of these statutes would conflict with established principles of international law. Finally, appellant claims that the district court lacked personal jurisdiction because he was seized in violation of American law.
The Hostage Taking Act provides, in relevant part:
(a) [W]hoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or to abstain from any act ... shall be punished by imprisonment by any term of years or for life.
(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless —
(A) the offender or the person seized or detained is a national of the United States;
(B) the offender is found in the United States; or
(C) the governmental organization sought to be compelled is the Government of the United States.
Yunis claims that this statute cannot apply to an individual who is brought to the United States by force, since those convicted under it must be "found in the United States." But this ignores the law's plain language. Since two of the passengers on Flight 402 were U.S. citizens, section 1203(b)(1)(A), authorizing assertion of U.S. jurisdiction where "the offender or the person seized or detained is a national of the United States," is satisfied. The statute's jurisdictional requirement has been met regardless of whether or not Yunis was "found" within the United States under section 1203(b)(1)(B).
Yunis further argues that even if the district court had jurisdiction to try him, it should have declined to exercise that jurisdiction in light of the government's allegedly outrageous conduct in bringing him to the United States.
Principally, Yunis relies on United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), in which the court held that due process requires courts to divest themselves of personal jurisdiction acquired through "the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights." Toscanino establishes, at best, only a very limited exception to the general rule (known as the "Ker-Frisbie doctrine") that "the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.'" Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) (citing, inter alia, Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886)).