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United States v. Clarke

May 8, 2009

UNITED STATES OF AMERICA,
v.
ZION CLARKE, RICARDO DEFOUR, KEVON DEMERIEUX, ANDERSON STRAKER, WAYNE PIERRE, CHRISTOPHER SEALEY, AND KEVIN NIXON, DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Defendants Zion Clarke, Ricardo DeFour, Kevon Demerieux, Anderson Straker, Wayne Pierre, Christopher Sealey, and Kevin Nixon were extradited from the Republic of Trinidad and Tobago ("Trinidad") to the United States in July 2007 and August 2008 to face charges of conspiracy to commit hostage taking resulting in death in violation of 18 U.S.C. § 1203 ("Hostage Taking Act"), and aiding and abetting hostage taking resulting in death. The charges arise from the abduction and death of a U.S. citizen, Balram Maharaj, in Trinidad in April 2005. In the most basic terms, defendants face trial in the United States, rather than Trinidad, because the statute makes it a federal criminal offense for aliens abroad to take U.S. citizens hostage.

Presently before the Court are two motions to dismiss and a related motion to stay the trial of this matter. The first motion, filed by Straker, contends that the hostage taking statute is unconstitutional because it impermissibly discriminates on the basis of alienage in violation of his constitutional rights to equal protection and due process. The second motion, filed by Demerieux, contends that the Court lacks jurisdiction over this case because Maharaj was not qualified for U.S. citizenship when he was naturalized, rendering his citizenship void ab initio. In a related motion, Clarke has moved to stay the trial of this matter -- presently scheduled to commence on May 26, 2009 -- pending resolution of defendants' civil administrative and judicial petitions seeking revocation of Maharaj's citizenship. See 8 U.S.C. § 1451(a). All defendants have joined in the pending motions to dismiss and to stay. For the reasons stated below, the Court will deny defendants' motions.*fn1 The Court will also grant the government's separate motion in limine to preclude defendants from introducing evidence on the subject of whether Maharaj should have been granted U.S. citizenship.

I. Straker's Motion to Dismiss

Straker contends that 18 U.S.C. § 1203 facially discriminates on the basis of alienage, pointing out that aliens are singled out for prosecution. Classification based on alienage is evident from the text of the statute, and the courts of appeals have recognized that the statute treats aliens differently than U.S. citizens. See 18 U.S.C. § 1203(b)(1) and (2);*fn2 United States v. Lue, 134 F.3d 79, 85-86 (2d Cir. 1998); United States v. Santos-Riviera, 183 F.3d 367, 372 (5th Cir. 1999); see also Gov't Opp'n at 3 ("jurisdiction is based upon the facts that the person seized was a national of the United States and the defendant is an alien").

The only issue is whether classification based on alienage in this context survives constitutional scrutiny. Five courts of appeals have considered this issue and held that the classification in § 1203 does not violate a defendant's Fifth Amendment right to due process or equal protection. See United States v. Ferreira, 275 F.3d 1020, 1025-27 (11th Cir. 2001); United States v. Montenegro, 231 F.3d 389, 394-95 (7th Cir. 2000); Santos-Riviera, 183 F.3d at 372-74; Lue, 134 F.3d at 85-87; United States v. Lopez-Flores, 63 F.3d 1468, 1471-74 (9th Cir. 1995). The deferential rational basis standard of review applies to a federal classification based on alienage, and hence the statute will be upheld if it is rationally related to a legitimate governmental interest. See, e.g., Montenegro, 231 F.3d at 395 (citing Mathews v. Diaz, 426 U.S. 67, 79-87 (1976)).*fn3 The courts of appeals have uniformly held that § 1203 is rationally related to the legitimate government interest in addressing foreign policy concerns, in particular, Congress's authority to implement the terms of treaties -- here, the International Convention Against the Taking of Hostages -- and to address the international ramifications of hostage taking. Id. at 395; Ferreira, 275 F.3d at 1027 ("Congress passed the Hostage Taking Act [18 U.S.C. § 1203] to implement the International Convention Against the Taking of Hostages" and "because it believed that kidnapping involving foreign nationals has serious international ramifications"); Santos-Riviera, 183 F.3d at 373 ("The legislative history of the Hostage Taking Act demonstrates that the Act was passed to address legitimate foreign policy concerns" and, in particular, "to meet its obligations as a signatory state to the Hostage Taking Convention").

Straker attempts to achieve a different result here, based on his contention that § 1203 was designed to combat acts of terrorism, in contrast to "purely local kidnappings that could be prosecuted in the nation where the crime occurred." Mot. to Dismiss at 9. Nothing on the face of § 1203 indicates such a limitation, and the courts of appeals have recognized that § 1203 is not limited to terrorist acts. See, e.g., Santos- Riviera, 183 F.3d at 373 ("'[The Hostage Taking Convention] provided states with the discretion to assert jurisdiction when their nationals were taken hostage. Congress' voluntary decision to adopt this permissive basis of jurisdiction underscores its intent to exercise broad jurisdiction over any offender who threatens American nationals.'") (quoting United States v. Carrion-Caliz, 944 F.2d 220, 224 (5th Cir. 1991)); Montenegro, 231 F.3d at 395 ("The classification drawn by the Hostage Taking Act covers all aliens involved in hostage-taking incidents."); see also United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991) (explaining that "the statute [§ 1203] . . . reflects an unmistakable congressional intent, consistent with treaty obligations of the United States, to authorize the prosecution of those who take Americans hostage abroad no matter where the offense occurs or where the offender is found" in response to defendant's objections based on international law). Like the five courts of appeals that have addressed the same constitutional challenge, this Court concludes that the alienage classification in § 1203 is rationally related to Congress's legitimate foreign policy interests. Therefore, Straker's motion to dismiss will be denied.

II. Demerieux's Motion to Dismiss

Demerieux moves to dismiss the indictment on the ground that the Court lacks subject matter jurisdiction. He contends that the Court's jurisdiction over this case is premised on the victim's status as a "national of the United States" under 18 U.S.C. § 1203, and that Maharaj fails to qualify as a "national of the United States" because he was ineligible for citizenship at the time of his application for naturalization and obtained citizenship through fraud and misrepresentation.*fn4 See Demerieux's Mot. to Dismiss at 2-17. In other words, Demerieux believes the government got it wrong when it granted Maharaj's application for naturalization, and he has the evidence to prove it. To that end, he and his co-defendants have recently petitioned Jeffrey Taylor, the United States Attorney for the District of Columbia ("U.S. Attorney" or "Taylor"), to institute a civil judicial proceeding to revoke Maharaj's citizenship; they have also filed a petition for writ of mandamus seeking an order compelling the U.S. Attorney to act on the request before the trial date and to initiate citizenship revocation proceedings under 8 U.S.C. § 1451(a). See Clarke v. Holder, Civil Action No. 09-0753 (D.D.C. filed Apr. 23, 2009) (hereinafter, "Clarke Mandamus Petition").

In response, the government contends that the Court possesses jurisdiction over this criminal case because Maharaj's formal citizenship status at the time of the hostage taking was undisputedly that of a U.S. citizen and, furthermore, at no time has that citizenship ever been revoked. See Gov't Opp'n at 5-6, 11-18.*fn5 The government also contends that, in light of the exclusive process for revocation of naturalization set up by 8 U.S.C. § 1451 and 8 C.F.R. §§ 340.1 and 340.2, this Court is without authority to make a determination as to the legitimacy of Maharaj's citizenship. Id. at 13-19. Having fully considered the parties' briefs, exhibits, and the arguments presented at the motions hearing held on May 1, 2009, the Court has determined that there is no dispute that Maharaj possessed an authentic certificate of naturalization and U.S. passport at the time of the hostage taking, that his U.S. citizenship has never been revoked, and that this Court lacks the authority to declare his citizenship void. Therefore, the Court will deny Demerieux's motion to dismiss, including his request for an evidentiary hearing on whether Maharaj was qualified for U.S. citizenship.

To frame the array of issues, the Court begins with the statute governing revocation of naturalization. The Immigration and Nationality Act of 1952 provides that the United States attorneys are charged with instituting judicial proceedings to revoke the citizenship of a naturalized U.S. citizen as follows:

It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate . . . . If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.

8 U.S.C. § 1451(a). Revocation of naturalization may also occur through administrative proceedings instituted by the U.S. Citizenship and Immigration Service. See 8 C.F.R. §§ 340.1 and 340.2. Demerieux has submitted the affidavits of Reita Pendry and George Steel to both the U.S. Attorney for the District of Columbia and the U.S. Citizenship and Immigration Service, including a proffer of evidence of "illegal procure[ment]," "concealment of . . . material fact[s]," and "willful misrepresentation," and based on that profffer, contends that Maharaj's citizenship was void ab initio -- that is, void as of "the original date of the order and certificate" as provided under § 1451(a). See Clarke Mandamus Pet. Attach. at 2-9.

Before turning to Demerieux's arguments in support of his motion, the Court first addresses Clarke's contention that the Court should not consider the government's opposition to the motion to dismiss because the U.S. Attorney has a conflict of interest. See Defs.' Joint Reply at 2. Clarke points out that the U.S. Attorney now has before it two matters pertaining to Maharaj's citizenship -- this criminal prosecution and defendants' petition dated March 23, 2009, requesting the institution of proceedings to revoke Maharaj's citizenship under § 1451(a). Id. In Clarke's view, because the U.S. Attorney will "be able to go forward with an improper prosecution" if it fails to pursue revocation proceedings under § 1451(a), the government has a conflict of interest and should not be permitted to oppose Demerieux's motion to dismiss the criminal case. Id. The government responds that there is no conflict of interest in this criminal action ...


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