US v. Edgar Bello Murillo

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cr-00310-GBL-3. [999852601]. [15-4235]

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 1 of 20

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4235

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDGAR JAVIER BELLO MURILLO, a/k/a Payaso,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:13-cr-00310-GBL-3)

Argued:

January 28, 2016

Decided:

June 14, 2016

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Duncan joined.
ARGUED: John Cady Kiyonaga, LAW OFFICE OF JOHN C. KIYONAGA,
Alexandria, Virginia, for Appellant.
Ross Brandon Goldman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
ON BRIEF: Stacey K. Luck, Human Rights & Special
Prosecutions Section, Leslie R. Caldwell, Assistant Attorney
General, Sung-Hee Suh, Deputy Assistant Attorney General,
Criminal Division, Appellate Section, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Dana J. Boente, United States
Attorney, Richard Cooke, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 2 of 20

KING, Circuit Judge:
Defendant

Edgar

Javier

Bello

Murillo

appeals

his

convictions in the Eastern District of Virginia arising from the
murder in South America of Special Agent James Terry Watson of
the Drug Enforcement Administration (the “DEA”).

At the time of

his death, Agent Watson — as an Assistant Attaché for the United
States Mission in Colombia — was an internationally protected
person

(an

“IPP”).

Bello,

a

citizen

of

Colombia,

contested his involvement in crimes against Watson.

has

not

Indeed,

Bello pleaded guilty to offenses of kidnapping conspiracy and
murder of an IPP.

He reserved the right to pursue this appeal,

however, on the ground that his prosecution in this country for
offenses committed in Colombia contravened the Fifth Amendment’s
Due

Process

Clause.

As

explained

below,

we

affirm

Bello’s

convictions.

I.
A.
Agent Watson began serving the DEA in the year 2000, having
previously worked as a Sheriff’s Deputy in Louisiana and as a
Deputy United States Marshal in Mississippi. 1

1

In July 2010, the

As part of his plea agreement with the United States
Attorney, Bello stipulated to facts regarding his involvement in
(Continued)
2

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 3 of 20

DEA assigned Watson to its field office in Cartagena, Colombia.
That same month, Watson was accredited by the United States and
Colombia as an Assistant Attaché for the United States Mission
in Colombia.
an

IPP

and

By virtue of his diplomatic status, Watson became
was

thereby

Prevention

and

Protected

Persons,

protected

Punishment

of

by

Crimes

Including

the

Convention

Against

Diplomatic

on

the

Internationally

Agents

(the

“IPP

Convention,” or the “Convention”), opened for signature Dec. 14,
1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167. 2
Bello
conspired
passengers

drove
with

a

taxicab

other

taxi

through

armed robberies.

“paseo

in

Bogotá,

drivers

to

millionario”

Colombia,
mug

and

where

rob

(“millionaire’s

he

wealthy
ride”)

The conspirators would execute their robbery

schemes through a series of choreographed maneuvers.

First, one

taxi driver would pick up an affluent-looking customer and then
signal

to

the

others.

Next,

another

taxicab

containing

additional conspirators would pull in behind the first.

Armed

with weapons such as tasers and knives, the conspirators from
the second taxicab would enter the first and rob its passenger.

Agent Watson’s murder. We draw our factual recitation from the
record and that statement of facts.
2

The United States signed the IPP Convention on December
28, 1973. The Convention became effective on February 20, 1977,
and Colombia adopted it on January 16, 1996.

3

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 4 of 20

The assailants would demand from the victim his cash, valuables,
credit

cards,

accounts.

and

personal-identification

Typically,

another

conspirator

numbers
—

in

for

yet

bank

a

third

taxicab — would support the robbery efforts by blocking traffic,
acting

as

a

lookout,

or

using

the

victim’s

bank

cards

to

withdraw cash.
On or about June 20, 2013, a taxicab operated by one of
Bello’s
Carrying

coconspirators
a

knife,

Bello

picked

up

rode

in

Agent
a

Watson

second

codefendant Edwin Gerardo Figueroa Sepulveda.

in

taxicab

Bogotá.
with

his

After travelling

a short distance with Agent Watson, the driver of the first
taxicab pretended that his vehicle was experiencing mechanical
problems and stopped, allowing the second taxicab to pull in
behind.

Bello and Figueroa Sepulveda then exited the second

taxicab and entered the first to rob Watson.

Inside, Figueroa

Sepulveda tased Watson, and Bello stabbed the American diplomat
at

least

four

times.

Watson

ultimately

escaped

assailants, but he later died from the stab wounds.

from

his

Within a

few days, Bello was arrested in Colombia.
B.
1.
On July 18, 2013, the federal grand jury in Alexandria,
Virginia,

returned

an

indictment

against

six

defendants,

including Bello and lead defendant Figueroa Sepulveda, for their
4

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 5 of 20

involvement in Agent Watson’s murder.

In pertinent part, the

indictment charged Bello with four offenses:

murder of an IPP,

in contravention of 18 U.S.C. § 1116(a) (“Count 1”); murder of
an officer and employee of the United States, in violation of 18
U.S.C.

§ 1114

(“Count

2”);

conspiracy

to

kidnap

an

IPP,

in

contravention of 18 U.S.C. § 1201(c) (“Count 3”); and kidnapping
an IPP, in violation of 18 U.S.C. § 1201(a) (“Count 4”).

Counts

1, 2, and 4 included allegations of aiding and abetting under 18
U.S.C. § 2.
On August 22, 2013, the United States requested Bello’s
extradition

from

Colombia

District of Virginia.

for

prosecution

in

the

Eastern

Pursuant to Colombia’s obligations under

the IPP Convention, the Colombian Minister of Justice and Law
referred the extradition request to Colombia’s Supreme Court of
Justice.

On April 2, 2014, that court ruled that Bello could be

extradited to the United States for prosecution on Counts 1, 3,
and 4 — the alleged offenses against an IPP — but not on Count
2.
Thereafter, by an executive resolution of June 18, 2014,
the Colombian Minister of Justice and Law — acting on behalf of
the President of Colombia — ordered Bello’s extradition to the
United States for prosecution on Counts 1, 3, and 4, and denied
the

extradition

request

as

to

Count

2.

In

so

ruling,

the

Minister relied on the Colombian court decision, observing that
5

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 6 of 20

“the crime must be considered as committed not only in the place
where the events physically happened but also in the territory
of the United States of America,” which “has the right to claim
jurisdiction to investigate and try the conduct that affected
its key interests.”

See United States v. Figueroa Sepulveda,

No. 1:13-cr-00310 (E.D. Va. Feb. 18, 2015), ECF No. 292-1, at
29-30 (internal quotation marks and footnote omitted). 3

Bello

was thereafter extradited to this country and first appeared in
the Eastern District of Virginia on July 2, 2014.

Two weeks

later, the district court dismissed Count 2 as to him.
2.
Invoking the “notice requirement” of the Fifth Amendment’s
Due Process Clause, Bello sought dismissal of the three charges
on which he had been extradited.

See United States v. Figueroa

Sepulveda, No. 1:13-cr-00310 (E.D. Va. Sept. 15, 2014), ECF No.
119, at 1.

Critical to Bello’s argument was that the government

did “not allege (nor, apparently, could it based on the known
facts) that the conduct in this case was intentionally directed
at a United States citizen, much less an agent of the United

3

The June 18, 2014 executive resolution of the Colombian
Minister of Justice and Law ordering Bello’s extradition to this
country is contained in materials the Colombian government
provided to the U.S. Embassy in Bogotá.
The United States
Attorney filed certified translations of those materials in the
district court proceedings.

6

Appeal: 15-4235

Doc: 43

States

Filed: 06/14/2016

Government.”

Id.

Pg: 7 of 20

at

5-6.

Bello

contended

that,

“[a]bsent a specific intent to harm American people, property or
interests, or knowledge that [his] conduct would do so, it is
fundamentally unfair and inconsistent with American notions of
due process for [him] to be tried in an American court.”

Id. at

6.
As

explained

relied primarily

in

its

on

our

opinion
recent

of

November

decision

in

6,

2014,

United

which

States

v.

Brehm, 691 F.3d 547 (4th Cir. 2012), the district court denied
the dismissal motion.

See United States v. Figueroa Sepulveda,

57 F. Supp. 3d 618 (E.D. Va. 2014).
ruled

that

prosecuting

Bello’s
him

in

“due
the

In so doing, the court

process

rights

are

not

violated

by

United

States

for

the

murder

and

kidnapping of [Agent Watson] because exercising extraterritorial
jurisdiction

for

these

offenses

is

Circuit’s test set forth in Brehm.”

proper

under

Id. at 620.

the

Fourth

Applying the

Brehm test, the court concluded that Bello’s prosecution in the
United States was neither arbitrary nor unfair, because Bello’s
offenses affected a “significant American interest,” id. at 622,
and he had “ample reason to anticipate being prosecuted for his
conduct ‘somewhere,’” id. at 623.
3.
In December 2014, pursuant to Rule 11 of the Federal Rules
of Criminal Procedure, Bello executed his plea agreement with
7

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 8 of 20

the United States Attorney, agreeing to enter conditional pleas
of guilty on Counts 1 and 3.

The plea agreement reserved to

Bello “the right to appeal the Court’s adverse determination
concerning the defendant’s Motion to Dismiss for Violation of
the Notice Requirement of the Fifth Amendment Due Process Clause
(Docket No. 119).”

See United States v. Figueroa Sepulveda, No.

1:13-cr-00310 (E.D. Va. Dec. 19, 2014), ECF No. 257, at 6 ¶ 7.
The plea agreement specified that “Count 1 charges the defendant
with

aiding

and

contravention

of

abetting
18

U.S.C.

the

murder

§§ 1116(a)

of

an

and

2,

[IPP],”
and

in

further

explained that “Count 3 charges the defendant with conspiracy to
kidnap an [IPP],” in violation of 18 U.S.C. § 1201(c).
¶ 1.
11

Id. at 1

On December 19, 2014, the district court conducted a Rule

hearing.

At

Counts 1 and 3.

the

hearing,

Bello

entered

guilty

pleas

on

In exchange, the government moved to dismiss

Count 4 as to him.

The court dismissed Count 4 and approved the

plea agreement.
On April 16, 2015, the district court sentenced Bello to
concurrent sentences of 440 months in prison on Counts 1 and 3.
Bello

timely

noted

this

appeal,

pursuant to 28 U.S.C. § 1291.

8

and

we

possess

jurisdiction

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 9 of 20

II.
Bello’s sole claim on appeal is that his prosecution in the
United

States

Clause.

contravened

the

Fifth

Amendment’s

Due

Process

claim.

We review de novo a properly preserved constitutional
See United States v. Hall, 551 F.3d 257, 266 (4th Cir.

2009).
A.
The

Fifth

Amendment

provides

that

no

person

shall

be

“deprived of life, liberty, or property, without due process of
law.”

See U.S. Const. amend. V.

In our Brehm decision, we

recognized that the enforcement of an extraterritorial statute
“in a particular instance must comport with due process.”

See

United States v. Brehm, 691 F.3d 547, 552 (4th Cir. 2012). 4

We

also observed that certain of our sister circuits approach the
due process inquiry by asking whether there is “a sufficient
nexus

between

applying

a

the

defendant

particular

and

statute

the

to

arbitrary or fundamentally unfair.”
4

the

United

States,”

accused

“would

so

that

not

be

See id. (internal quotation

Bello does not contest the district court’s ruling that
the statutes underlying his convictions on Counts 1 and 3 apply
extraterritorially, i.e., they reach offenses committed outside
the United States.
See Figeuroa Sepulveda, 57 F. Supp. 3d at
620 (recognizing that “[t]he plain language of the[] statutes
rebuts the presumption against extra-territoriality by codifying
Congress’ intent that extraterritorial jurisdiction be applied
regardless of where the offenses occur” (relying on E.E.O.C. v.
Arabian Am. Oil Co., 499 U.S. 244, 248 (1991))).

9

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 10 of 20

marks omitted) (citing United States v. Yousef, 327 F.3d 56, 111
(2d Cir. 2003); United States v. Davis, 905 F.2d 245, 248–49
(9th Cir. 1990)).

We then assessed the constitutionality of

Brehm’s prosecution under that arbitrary-or-unfair framework.
Here, the district court employed the same arbitrary-orunfair framework, and the parties accede to its applicability in
this appeal.
Pursuant

We are content to utilize that framework today.

thereto,

we

agree

with

Bello’s

concession

at

oral

argument that his criminal prosecution in the United States was
not arbitrary.
prosecute

a

As we indicated in Brehm, it is not arbitrary to

defendant

in

the

United

States

if

his

“actions

affected significant American interests” — even if the defendant
did not mean to affect those interests.
Certainly,

the

United

States

protecting

its

diplomatic

has

agents

a

See 691 F.3d at 552-53.
significant

while

they

interest

represent

in

this

country abroad, and that very interest was affected by Bello’s
crimes against Agent Watson.
Bello’s due process claim thus rests solely on the premise
that his prosecution in this country was fundamentally unfair,
because he did not know that Agent Watson was an American IPP
and

thus

could

not

have

foreseen

being

haled

into

a

United

States court for the offenses he committed in Colombia.
explained
require

in

that

Brehm,
the

however,

defendants

that

“[f]air

understand
10

warning

that

they

does
could

We
not
be

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 11 of 20

subject to criminal prosecution in the United States so long as
they would reasonably understand that their conduct was criminal
and would subject them to prosecution somewhere.”

See 691 F.3d

at 554 (quoting United States v. Al Kassar, 660 F.3d 108, 119
(2d Cir. 2011)); see also United States v. Ali, 718 F.3d 929,
944

(D.C.

Cir.

2013)

(“What

appears

to

be

the

animating

principle governing the due process limits of extraterritorial
jurisdiction is the idea that ‘no man shall be held criminally
responsible for conduct which he could not reasonably understand
to be proscribed.’” (quoting Bouie v. City of Columbia, 378 U.S.
347, 351 (1964))).
Simply put, a defendant is “not ensnared by a trap laid for
the

unwary”

when

he

has

evidently criminal.”

engaged

in

conduct

that

“is

self-

See Brehm, 691 F.3d at 554 (quoting Al

Kassar, 660 F.3d at 119).

Because kidnapping and murder are

“self-evidently criminal,” it was not fundamentally unfair to
prosecute Bello in the United States.
554

(concluding

that

prosecution

in

Accord Brehm, 691 F.3d at
United

States

was

not

fundamentally unfair where South African defendant working for
American

contractor

stabbed

British

victim

at

NATO-operated

military base in Afghanistan); Al Kassar, 660 F.3d at 119 (same
where

foreign

organization

defendants
overseas

supplied

for

use

11

weapons
against

to
U.S.

known

terrorist

citizens

and

Appeal: 15-4235

Doc: 43

property).

Filed: 06/14/2016

Absent

Pg: 12 of 20

fundamental

unfairness,

Bello’s

Fifth

Amendment due process claim fails under Brehm.
B.
Brehm also supports the proposition that the IPP Convention
alone gave Bello notice sufficient to satisfy due process.
Brehm,

the

South

African

defendant

was

prosecuted

in

In
this

country for stabbing his British victim at Kandahar Airfield,
where the heavy American presence was regulated in part by a
written agreement in which the Afghan government authorized ours
“to exercise its criminal jurisdiction over the personnel of the
United States.”
omitted).

See 691 F.3d at 553 (internal quotation marks

Moreover,

Brehm

had

signed

an

agreement

with

the

American military contractor that employed him acknowledging the
United

States’

criminal

jurisdiction.

See

id.

at

549.

We

concluded that Brehm should have reasonably understood that he
was subject to prosecution somewhere for the stabbing, “all the
more so in light of the relevant provisions of his employment
contract.”

See id. at 554.

That is, not only was Brehm’s

conduct “self-evidently criminal” so as to thwart the argument
that

his

prosecution

was

fundamentally

unfair,

but

the

employment contract “constituted notice of the [United States’
criminal

jurisdiction

under

its

agreement

government] sufficient to dispel any surprise.”

12

with

the

See id.

Afghan

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 13 of 20

Along similar lines, the D.C. Circuit has recognized that
“a treaty may provide notice sufficient to satisfy due process.”
See Ali, 718 F.3d at 945.

More specifically, the court of

appeals articulated that, when a treaty provides “global notice
that certain generally condemned acts are subject to prosecution
by any party to the treaty,” the Fifth Amendment “demands no
more.”

Id. at 944 (citing with approval United States v. Shi,

525 F.3d 709 (9th Cir. 2008)).
Relevant to Bello’s prosecution in the United States, the
IPP Convention provides that each signatory nation, or “State
Party,” must criminalize particular acts committed against an
IPP, including kidnapping and murder.

See IPP Convention, art.

III, opened for signature Dec. 14, 1973, 28 U.S.T. 1975, 1035
U.N.T.S. 167.

The Convention requires each State Party to “take

such measures as may be necessary to establish its jurisdiction
over [those] crimes,” when “committed in the territory of that
State” or when “committed against an [IPP] who enjoys his status
as such by virtue of functions which he exercises on behalf of
that

State.”

Id.

at

art.

III,

¶ 1.

According

to

the

Convention, the instrument itself may serve “as the legal basis
for extradition” between two State Parties.
¶ 2.

The

kidnapping

Convention
and

murdering

also
an

specifies
IPP

“shall

Id. at art. VIII,

that
be

the

crimes

treated,

for

of
the

purpose of extradition between State Parties, as if [they] had
13

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 14 of 20

been committed not only in the place in which [they] occurred
but also in the territories of the States required to establish
their jurisdiction.”

Id. at art. VIII, ¶ 4.

The foregoing provisions of the IPP Convention give global
notice that Colombia, as a State Party to the Convention, must
establish jurisdiction over any kidnapping or murder of an IPP
committed

in

its

territory.

Meanwhile,

other

State

Parties

(including the United States) must establish jurisdiction over
the kidnappings and murders of their IPPs, wherever those crimes
occur.
and

When an IPP has been kidnapped or murdered in Colombia

the

offender,

Colombian
the

authorities

Convention

have

affords

apprehended
Colombia

the

the

alleged

option

of

prosecuting him or extraditing him to the country that accorded
the victim his IPP status.

As suggested in Brehm and supported

by decisions of our sister circuits, including Ali and Shi, that
global notice

alone

is

sufficient

to

quell

any

concern

that

Bello’s prosecution in the United States for his crimes against
Agent Watson contravened due process.
C.
Finally,

we

reject

Bello’s

contention

that

because

the

United States Code provisions implementing the IPP Convention
require knowledge of the victim’s IPP status that Bello did not
possess, those provisions cannot have put him on notice that he
was subject to prosecution in this country.
14

See Reply Br. of

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 15 of 20

Appellant 5 (“The fact that the statutes were never intended to
reach Appellant’s conduct informs the fact that he could not
infer from the statutes that they could impact his conduct.”).
That

argument

fails

at

its

start,

in

that

the

mens

rea

requirements of 18 U.S.C. § 1116(a) (the murder offense) and 18
U.S.C.

§ 1201(a)(4)

offense) are

limited

(the
to

object
the

of

intent

the

kidnapping

necessary

for

conspiracy
murder

and

kidnapping, and do not include the intent to victimize an IPP.
The victim’s IPP status is simply a “jurisdictional element”
that allows prosecution of murder and kidnapping in our federal
courts.
As the Supreme Court recently explained, courts generally
“interpret criminal statutes to require that a defendant possess
a mens rea, or guilty mind, as to every element of an offense.”
See Luna Torres v. Lynch, 136 S. Ct. 1619, 1630 (2016) (relying
on Elonis v. United States, 135 S. Ct. 2001, 2009-10 (2015)).
Not so, however, with respect to jurisdictional elements.
at 1631.

Id.

That is, “when Congress has said nothing about the

mental state pertaining to a jurisdictional element, the default
rule flips:

Courts assume that Congress wanted such an element

to stand outside the otherwise applicable mens rea requirement.”
Id.; see United States v. Cooper, 482 F.3d 658, 664 (4th Cir.
2007) (observing that “mens rea requirements typically do not
extend to the jurisdictional elements of a crime”).
15

Our review

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 16 of 20

of §§ 1116(a) and 1201(a)(4) confirms that they are statutes
where

“the

existence

of

the

fact

that

confers

federal

jurisdiction need not be one in the mind of the actor at the
time he perpetrates the act made criminal.”

See United States

v. Feola, 420 U.S. 671, 676 n.9 (1975). 5
1.
Section 1116(a) of Title 18, the statute underlying Count
1, provides that “[w]hoever kills or attempts to kill . . . [an
IPP] shall be punished as provided under sections 1111, 1112,
and 1113 of [Title 18].”
“kill” or “attempt.”

Notably, § 1116(a) does not define

Instead, those terms derive their meaning

from §§ 1111, 1112, and 1113, which spell out the elements of
the offenses of murder, manslaughter, and attempted murder or
manslaughter, respectively, when committed “[w]ithin the special
maritime

and

Section

1111,

territorial
for

jurisdiction

example,

specifies

of

the

that

United

“[m]urder

States.”
is

the

unlawful killing of a human being with malice aforethought,” and
it distinguishes first- from second-degree murder.

5

In other

The government asserts that Bello’s plea agreement bars
him from pursuing his mens rea contention. See Br. of Appellee
27 (deeming mens rea contention to be “statutory interpretation
argument” within Bello’s waiver of right to appeal).
Because
Bello proffers the mens rea contention solely to support his
Fifth Amendment claim, however, it is proper for us to reach —
and reject — that argument today.

16

Appeal: 15-4235

Doc: 43

words,

Filed: 06/14/2016

§ 1111

identifies

the

Pg: 17 of 20

substantive

elements

of

murder,

including the mental state required to commit that offense.

See

United States v. Ashford, 718 F.3d 377, 384 (4th Cir. 2013)
(explaining

that

first-degree

“premeditation,”

while

murder

second-degree

under
murder

§ 1111

requires

requires

simply

“malice aforethought” (internal quotation marks omitted)).
Read in concert with § 1111, § 1116 confers jurisdiction
over the murder of an IPP, including that of an American IPP in
another
pertinent

country.

See

part,

jurisdiction

18

U.S.C.

that

over

“the

the”

murder

§ 1116(c)

United
of

an

States
IPP

(providing,
may

“outside

in

exercise
the

United

States” if “the victim is a representative, officer, employee,
or agent of the United States”).
thus

clearly

intended

murder offense.

to

be

a

The victim’s IPP status is

jurisdictional

element

of

the

And nothing in § 1116(a) rebuts the presumption

that a perpetrator need not know his victim’s status in order to
commit the crime of murdering an IPP.

Cf. Feola, 420 U.S. at

684 (concluding that a statute making it a federal crime to
assault a federal officer merely required “an intent to assault,
not an intent to assault a federal officer”).
2.
Bello was charged in Count 3 with the conspiracy offense
defined in 18 U.S.C. § 1201(c), which provides that, “[i]f two

17

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 18 of 20

or more persons conspire to violate [§ 1201] and one or more of
such

persons

do

any

overt

act

to

effect

the

object

of

the

conspiracy, each shall be punished” as provided by law.

As

relevant here, § 1201(a)(4) punishes “[w]hoever unlawfully . . .
kidnaps . . . and holds for ransom or reward or otherwise any
person,”

when

that

person

is

an

IPP.

As

such,

§ 1201

criminalizes a conspiracy to kidnap an IPP.
Unlike § 1116(a), which cross-references and draws on other
sections

of

Title

18,

§ 1201(a)

spells

out

the

“essential

elements” of the substantive kidnapping offense, that is, “an
unlawful seizure and holding” of another person.
States

v.

Satisfying

Lewis,
the

662

F.2d

elements

of

1087,

1088

§ 1201(a),

(4th
we

See United
Cir.

have

1981).

observed,

“necessarily implies an unlawful physical or mental restraint
for an appreciable period against the person’s will and with a
willful intent so to confine the victim.”

See United States v.

Lentz, 383 F.3d 191, 201 (4th Cir. 2004) (emphasis and internal
quotation marks omitted).
kidnapping
elements

do

offense
not,

include
however,

In other words, the elements of the
a

mens

require

rea
a

requirement.

perpetrator

to

Those
know

the

circumstances that bring a kidnapping offense within the purview
of the federal courts, such as whether the victim was an IPP.
Assessing the kidnapping statute as a whole confirms that
the IPP provision — codified in 18 U.S.C. § 1201(a)(4) — is a
18

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 19 of 20

jurisdictional element of the kidnapping offense.

See Wayne R.

LaFave, 3 Subst. Crim. L. § 18.2(a) (2d ed. 2003) (describing
§ 1201(a)(4)

as

one

of

the

“statutorily-declared

bases

federal jurisdiction under the kidnapping statute”).
§ 1201(a)(4)’s
jurisdiction,

statutory
supporting

also jurisdictional.
551

U.S.

128,

neighbors
the

speak

proposition

that

for

That is,

in

terms

§ 1201(a)(4)

of
is

See United States v. Atl. Research Corp.,

135

(2007)

(reading

proximate

statutory

subparagraphs as bearing on one another’s meaning because “[t]he
provisions

are

structures”).

adjacent
More

and

specifically,
that

have

remarkably

§ 1201(a)(1)

implicates

similar

criminalizes

“interstate

or

a

kidnapping

offense

foreign

commerce.”

Section 1201(a)(2) refers to a kidnapping committed

“within the special maritime and territorial jurisdiction of the
United

States.”

Section

1201(a)(3)

punishes

a

kidnapping

“within the special aircraft jurisdiction of the United States.”
Finally, § 1201(a)(5) criminalizes the kidnapping of a federal
officer.

Each

of

the

four

subparagraphs

surrounding

§ 1201(a)(4) confers federal jurisdiction without altering the
substantive elements of the kidnapping offense.
F.2d

at

1090

(concluding

that

pre-IPP

See Lewis, 662

Convention

version

of

§ 1201(a) “creates a single crime with four jurisdictional bases
rather than four different crimes”).

19

Appeal: 15-4235

Doc: 43

Filed: 06/14/2016

Pg: 20 of 20

As with 18 U.S.C. § 1116(a), we discern no indication that
Congress intended in § 1201(a)(4) to impose an additional mens
rea requirement.

Rather, it is clear that a victim’s IPP status

is merely a basis for jurisdiction in our federal courts over a
kidnapping offense, and that a perpetrator need not know of that
status in order to be in violation of § 1201(a)(4) or to engage
in

a

kidnapping

conspiracy

in

contravention

of

§ 1201(c).

Accordingly, there is no merit to Bello’s mens rea contention —
nor his broader claim that the Fifth Amendment’s Due Process
Clause precluded his prosecution in this country — and we must
uphold his kidnapping conspiracy and murder convictions.

III.
Pursuant to the foregoing, the judgment of the district
court is affirmed.
AFFIRMED

20