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UNITED STATES v. REZAQ

December 8, 1995

UNITED STATES OF AMERICA,
v.
OMAR MOHAMMED ALI REZAQ, a/k/a OMAR MARZOUKI, Defendant.



The opinion of the court was delivered by: LAMBERTH

 MEMORANDUM OPINION AND ORDER

 This matter came before the Court on December 6, 1995 for oral argument on the following non-evidentiary motions: (1) defendant's motion to dismiss on the ground that the government unlawfully manufactured an element of the offense; (2) defendant's motion to strike surplusage from the indictment; and (3) defendant's motion to bifurcate. Following oral argument, the government submitted a proposed trial schedule to the Court. *fn1" Upon consideration of the arguments and filings of counsel, the Court shall deny each of defendant's motions for the reasons set forth below.

 DISCUSSION

 A. Defendant's Motion to Dismiss on the Ground that the Government Has Unlawfully Manufactured an Element of the Offense

 Defendant is charged with one count of aircraft piracy, in violation of the Antihijacking Act, 49 U.S.C. §§ 1472(n)(1), 1472(n)(1)(B). *fn2" The statute provides:

 
Whoever aboard an aircraft in flight outside the special aircraft jurisdiction of the United States commits [an unlawful seizure of the aircraft as defined in section (2) of this provision] and is afterward found in the United States shall be punished --
 
(B) if the death of another person results from the commission or attempted commission of the offense, by death or by imprisonment for life.

 Id. Defendant contends that the government unlawfully manufactured the jurisdictional element of the aircraft piracy offense -- that defendant be "found in the United States" -- when it "forcibly and involuntarily" removed defendant to the United States to stand trial. The government, however, maintains that the statutory language "found in the United States" does not impose a voluntariness requirement on persons who appear in United States federal courts to stand trial on charges under the Act.

 A review of the legislative history of this statutory language substantiates the government's position on this matter. As the D.C. Circuit observed in United States v. Yunis, 288 U.S. App. D.C. 129, 924 F.2d 1086 (D.C. Cir. 1991):

 
Congress intended the statutory term "found in the United States" to parallel the Hague Convention's "present in a [contracting state's] territory," a phrase which does not indicate the voluntariness limitation urged by [defendant]. Moreover, Congress interpreted the Hague Convention as requiring the United States to extradite or prosecute "offenders in custody," evidencing no concern as to how alleged hijackers came within U.S. territory.

 924 F.2d at 1092 (citations omitted) (emphasis added).

 This Court finds the Yunis case decisive on the question whether Congress intended the forcible removal of an offender to the United States to constitute an unlawful manufacturing of a jurisdictional element of the offense of aircraft piracy. In light of the legislative history of the Antihijacking Act, and this Circuit's opinion in United States v. Yunis, the Court finds that the forcible removal of a person to the United States to stand trial for committing an offense under the Antihijacking Act does not constitute ...


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