United States v. Rezaq, Omar Mohammed

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 1997 Decided February 6, 1998

No. 96-3127

United States of America,

Appellee

v.

Omar Mohammed Ali Rezaq, a/k/a Omar Marzouki,

a/k/a Omar Amr,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 93cr00284-01)

Robert L. Tucker, Assistant Federal Public Defender, ar-

gued the cause for appellant, with whom A.J. Kramer, Feder-

al Public Defender, was on the briefs.

John F. De Pue, Attorney, United States Department of

Justice, argued the cause for appellee, with whom Mary Lou

Leary, United States Attorney, Joseph B. Valder, Assistant

United States Attorney, and Scott J. Glick, Attorney, United

States Department of Justice, were on the brief.

Before: Wald, Sentelle and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Omar Mohammed Ali Rezaq appeals

his conviction on one count of aircraft piracy under 49 U.S.C.

app. s 1472(n) (1994). In 1985, Rezaq hijacked an Air Egypt

flight shortly after takeoff from Athens, and ordered it to fly

to Malta. On arrival, Rezaq shot a number of passengers,

killing two of them, before he was apprehended. Rezaq

pleaded guilty to murder charges in Malta, served seven

years in prison, and was released in February 1993. Shortly

afterwards, he was taken into custody in Nigeria by United

States authorities and brought to the United States for trial.

Rezaq raises seven issues on this appeal. He argues: (1)

that the district court erred in permitting him to be prosecut-

ed at all, as the air piracy statute under which he was

prosecuted bars sequential prosecutions, and he had already

been prosecuted in Malta; (2) that the air piracy statute bars

the prosecution of defendants forcibly brought to the United

States for the purpose of prosecution; (3) that the district

court erred in applying a provision of the air piracy statute

requiring that defendants receive life imprisonment (or the

death penalty) if "death results" from their acts, as this

provision only applies if certain additional jurisdictional re-

quirements are satisfied; (4) that his trial was fatally tainted

by the introduction of evidence relating to the passengers'

deaths, and that this evidence should have been presented in

a separate phase of the trial or, in the alternative, that it

should have been presented in a less grisly form; (5) that

publicity toward the end of his trial resulting from the crash

of another airplane improperly affected the jury's delibera-

tions; (6) that the district court erred in assessing the

restitution he was to pay to his victims as part of his

sentence; and (7) that the district court may have erred in its

orders relating to the disclosure of classified government

documents to the defense. We find none of Rezaq's argu-

ments persuasive, and thus affirm his conviction and sentence

in their entirety.

I. Background

Rezaq did not contest his guilt at trial, relying instead on

the defenses of insanity and obedience to military orders.

Thus, the following account of the hijacking was not contested

at Rezaq's trial.

Rezaq is Palestinian, and was, at the time of the hijacking,

a member of a Palestinian terrorist organization, which

planned and ordered the hijacking. On the evening of No-

vember 23, 1985, Rezaq boarded Air Egypt Flight 648 in

Athens. He was accompanied by two other hijackers; one of

his confederates, named Salem, was the leader of the opera-

tion, and the name of the other is unknown. Shortly after the

plane took off, the three produced weapons, announced that

they were seizing the plane, and demanded that the captain

fly it to Malta. A gun battle ensued between the hijackers

and an Egyptian plainclothes sky marshal stationed on the

plane, as a result of which Salem was killed and the sky

marshal was wounded.

Rezaq then took charge of the hijacking. After the plane

arrived in Malta, he separated the Israeli and American

passengers from the others, and moved them to the front of

the plane. He released a number of Egyptian and Filipino

female passengers, as well as two wounded flight attendants.

He then demanded that the aircraft be refueled; when the

authorities refused, he announced that he would shoot a

passenger every fifteen minutes until his demand was met.

Rezaq carried out his threat. He first shot Israeli national

Tamar Artzi. Although he shot her twice, once in the head,

she survived. Fifteen minutes later, he shot her companion,

Nitzan Mendelson, also an Israeli; Ms. Mendelson died of her

injuries nine days later. Rezaq then shot Patrick Baker, an

American, but only succeeded in grazing his head. Two or

three hours later, Rezaq shot Scarlett Rogenkamp--a United

States citizen and an employee of the United States Air

Force--in the head, killing her. Some time later, he shot

Jackie Pflug, also an American, in the head, injuring her very

seriously. Rezaq shot his victims near the front door of the

plane, and either threw them or let them fall onto the tarmac;

this may explain why three of the five were able to survive,

either by escaping (Artzi and Baker), or by feigning death

(Pflug).

In the evening of November 24th--about a day after the

hijacking began--Egyptian commandos stormed the plane.

The operation seems to have been a singularly incompetent

one. The commandos fired indiscriminately, and set off an

explosive device of some kind, as a result of which the aircraft

burst into flames. Fifty-seven passengers were killed, as was

the third hijacker. Rezaq was injured, and was taken, with a

multitude of injured passengers, to a hospital. There, he was

identified as the hijacker by passengers, members of the

crew, and several of his victims.

The authorities in Malta charged Rezaq with murder, at-

tempted murder, and hostage taking. He pled guilty, and

was sentenced to 25 years' imprisonment. For reasons un-

clear, Maltese authorities released him some seven years

later, in February 1993, and allowed him to board a plane to

Ghana. Rezaq's itinerary was to carry him from there to

Nigeria, and then to Ethiopia, and finally to Sudan. Ghanai-

an officials detained Rezaq for several months, but eventually

allowed him to proceed to Nigeria. When Rezaq's plane

landed in Nigeria, Nigerian authorities placed him in the

custody of FBI agents, who transported him on a waiting

aircraft to the United States.

Rezaq was indicted and tried for air piracy in the District

Court for the District of Columbia. At trial, Rezaq invoked

the defenses of insanity and obedience to military orders. In

support of his insanity defense, Rezaq presented evidence

that he suffered from post-traumatic stress disorder

("PTSD"). As witnesses, he called several members of his

own family and three psychiatric experts; Rezaq himself also

testified at length. Rezaq asserted that his PTSD sprang

from numerous traumatic events he had experienced, first in

the Jordanian refugee camp in which he spent much of his

youth, and later in Lebanon, where he was active in Palestini-

an revolutionary organizations from 1978 to 1985. The Leba-

nese experiences he described included witnessing the killing

of hundreds of refugees by Israeli forces in Beirut in 1982;

witnessing the killings of the populations of entire villages;

and nearly being killed in a car bombing. Rezaq's family

testified that when he left Jordan he was normal, friendly,

and extroverted, but that when he returned from Lebanon he

was pale, inattentive, prone to nightmares, antisocial, and had

lost his sense of humor. Rezaq's psychiatric experts said that

these changes in behavior were symptomatic of PTSD, and,

based on their examination of Rezaq and on the testimony of

other witnesses, they concluded that Rezaq was suffering

from PTSD when he committed the hijacking in November

1985. The United States presented two psychiatric experts

of its own, who testified that Rezaq's symptoms were not as

intense as those usually associated with PTSD, and that

Rezaq was able to reason and make judgments normally at

the time he hijacked the plane.

The jury did not credit Rezaq's defenses, and found him

guilty of the one count with which he was charged, aircraft

piracy in violation of 49 U.S.C. app. s 1472(n) (1994). At the

time of Rezaq's prosecution, that section provided (it has

since been amended):

(1) Whoever aboard an aircraft in flight outside the

special aircraft jurisdiction of the United States commits

an "offense," as defined in the Convention for the Sup-

pression of Unlawful Seizure of Aircraft, and is afterward

found in the United States shall be punished--

(A) by imprisonment for not less than 20 years; or

(B) if the death of another person results from the

commission or attempted commission of the offense, by

death or by imprisonment for life.

(2) A person commits 'an offense,' as defined in the

Convention for the Suppression of Unlawful Seizure of

Aircraft, when, while aboard an aircraft in flight, he--

(A) unlawfully, by force or threat thereof, or by any

other form of intimidation, seizes, or exercises control of,

that aircraft, or attempts to perform any such act; or

(B) is an accomplice of a person who performs or

attempts to perform any such act.

49 U.S.C. App. s 1472(n) (1994). Because death resulted

from Rezaq's commission of the offense, s 1472(n)(1)(B) ap-

plied, and the district court sentenced Rezaq to life imprison-

ment. (The United States had not sought the death sen-

tence.) The district court also ordered Rezaq to pay a total

of $254,000 in restitution, an amount which it found to repre-

sent the financial cost to the victims of his crime.

Rezaq's first group of arguments on this appeal all derive

from the international nature of the crime of air piracy. He

argues, first, that the international treaty barring air piracy

prohibits sequential prosecutions for the same offense, and

that it was therefore impermissible for the United States to

try him anew for crimes for which he had already been

prosecuted in Malta. Second, he asserts that the United

States manufactured jurisdiction over him by bringing him

into its territory, and that section 1472(n)'s statement that it

applies to those "found in the United States" bars the applica-

tion of section 1472(n) to those forcibly brought to the United

States specifically for trial on air piracy charges. Third,

Rezaq avers that it was improper for the district court to

apply section 1472(n)'s "death results" provision (that is, its

provision requiring the imposition of the death sentence or of

life imprisonment in cases in which death results), as that

provision was only intended to apply if certain jurisdictional

criteria were met.

Rezaq's next group of arguments relates to the conduct of

his trial. The United States presented a range of evidence at

Rezaq's trial relating to the deaths of the passengers shot by

Rezaq, including photographs of the autopsy of one of them,

Scarlett Rogenkamp. Rezaq argues, first, that the district

court should have struck references to these deaths from the

indictment; second, that the district court should have bifur-

cated his trial into one phase addressing the hijacking, and a

second addressing the resulting deaths; third, that the dis-

trict court erred in not compelling the United States to

stipulate that the deaths had occurred; and fourth, that the

district court erred in allowing the United States to introduce

the autopsy evidence. Rezaq also argues that the district

court should not have allowed the jury to learn that 57

passengers died when the Egyptian commandos stormed the

plane. His last argument in this category claims that the

district court should have declared a mistrial when, shortly

before the jury began its deliberations, TWA Flight 800

crashed under mysterious circumstances, fueling speculation

about terrorist involvement.

Next, Rezaq argues that the district court erred in the

manner in which it calculated the amount of his restitution,

both in failing to consider his ability to pay, and in failing to

demand more detailed proof of the amount of the victims'

losses. Finally, the proceedings in the district court included

a number of ex parte hearings and orders relating to the

United States's obligations to produce classified materials to

Rezaq. The district court ruled that the United States could,

in lieu of producing certain relevant classified documents,

produce admissions of fact that summarized the relevant

contents of these documents. Rezaq notes that he cannot

examine the originals of these documents, and asks that we

ensure that the admissions were an adequate substitute for

the documents they replaced.

II. Analysis

A. Sequential Prosecution

We begin with Rezaq's argument that it was impermissible

for the United States to try him a second time, as he had

already been tried in Malta. Rezaq cannot base this argu-

ment on the Constitution's Double Jeopardy Clause, for two

reasons. First, that clause does not prohibit sequential trials

by different sovereigns. See United States v. Wheeler, 435

U.S. 313, 317 (1978) (sequential prosecution in Indian tribal

court and in federal court is not barred by the Double

Jeopardy Clause); United States v. Richardson, 580 F.2d

946, 947 (9th Cir. 1978) (per curiam) (applying this holding to

sequential prosecutions in Guatemalan and United States

courts). Second, Rezaq was prosecuted in Malta for murder,

attempted murder, and hostage-taking, but the United States

prosecution was for air piracy. The offense of air piracy

contains elements--related to the control of an airplane--that

the crimes for which Rezaq was tried in Malta do not. This

means, under the usual double jeopardy analysis, that the

first prosecution does not bar the second. See United States

v. Dixon, 509 U.S. 688, 696, 703-12 (1993); see also United

States v. Rezaq, 899 F. Supp. 697, 703-04 (D.D.C. 1995)

(conducting a detailed comparison of the elements of air

piracy with those of the Maltese offenses).

Rezaq asserts, however, that this case is subject to a more

exacting standard than the traditional double-jeopardy one.

Section 1472(n), 49 U.S.C. app. s 1472(n) (1994), was enacted

to implement the Convention for the Suppression of Unlawful

Seizure of Aircraft (also called the "Hague Convention"), Dec.

16, 1970, 22 U.S.T. 1643, a multilateral treaty directed at

preventing and punishing air piracy. See United States v.

Yunis, 924 F.2d 1086, 1092 (D.C. Cir. 1991). Rezaq claims

that both the Hague Convention and section 1472(n) incorpo-

rate a special ban on sequential prosecution that is more

restrictive than the Double Jeopardy Clause, and argues that

his prosecution on air piracy charges violates that ban.

It is certainly possible that a treaty could contain a double

jeopardy provision more restrictive--that is, barring more

prosecutions--than the Constitution's Double Jeopardy

Clause. In Sindona v. Grant, 619 F.2d 167, 178 (2d Cir.

1980), for instance, the court so read a double jeopardy

provision in an extradition treaty with Italy. See also United

States v. Jurado-Rodriguez, 907 F. Supp. 568, 577 (E.D.N.Y.

1995). But Rezaq has not shown that the Hague Convention

falls in this category.1

__________

1 We also note that Malta was not a party to the Hague Conven-

tion at the time of the hijacking. Because we do not agree with

Rezaq's claim that the Hague Convention incorporates special re-

Rezaq points to the provisions of the Hague Convention

that require states to either extradite or prosecute offenders,

and argues that they imply that a more restrictive double

jeopardy rule applies. For instance, he cites Article 4(2),

which provides: "Each Contracting State shall likewise take

such measures as may be necessary to establish its jurisdic-

tion over the offence in the case where the alleged offender is

present in its territory and it does not extradite him pursuant

to Article 8...." Rezaq argues that this provision implies

that extradition and prosecution are mutually exclusive op-

tions: a Contracting Party may not both extradite an offend-

er and prosecute him. This rule, he asserts, in turn implies

that the Hague Convention intended to bar all sequential

prosecutions, whether they occur after extradition or not.

The first step in Rezaq's argument is flawed: the Hague

Convention's requirement that a state either prosecute of-

fenders or extradite them does not imply a bar on (at

different times) doing both. In general, a requirement to "do

A or B" does not necessarily imply a bar on doing both A and

B; one must look at the context and the purpose of the

requirement to decide whether such a bar is meant. For

example, if a religious organization requires that its members

either do volunteer work or make cash contributions to

charity, the organization clearly does not mean to foreclose

them from doing both. The purpose of this hypothetical

religious mandate is to ensure that believers try to do good

deeds, and this purpose is served if a believer chooses to both

do volunteer work and make charitable contributions. Cf.

Foutz v. United States, 72 F.3d 802, 805 (10th Cir. 1995)

(concluding, based on context, that a set of alternatives in a

tax statute should not be read to be mutually exclusive);

Phillip M. Kannan, Symbolic Logic in Judicial Interpreta-

tion, 27 U. Mem. L. Rev. 85, 94 (1996).

Here, the context makes clear that the statute's injunction

to extradite or prosecute is not meant to state mutually

exclusive alternatives. The extradite-or-prosecute require-

__________

strictions on sequential prosecutions, we need not address the

implications of this fact.

ment is intended to ensure that states make some effort to

bring hijackers to justice, either through prosecution or ex-

tradition. There is no indication that Article 4 is intended to

go beyond setting a minimum, and limit the options of states;

indeed, Article 4(3) specifically provides that "[t]his Conven-

tion does not exclude any jurisdiction exercised in accordance

with national law." A reading of Article 4 that focuses on

bringing hijackers to justice is also consistent with the Con-

vention's (short) preamble, one clause of which states that

"for the purpose of deterring [acts of air piracy], there is an

urgent need to provide appropriate measures for punishment

of offenders." Thus, the extradite-or-prosecute requirement

is like the hypothetical donate-or-volunteer requirement de-

scribed above; it is intended to ensure a minimum level of

effort, and does not necessarily preclude the recipient of the

mandate from doing more.

A reading under which the options of prosecution and

extradition are mutually exclusive could also undermine the

Convention's goal of ensuring "punishment of offenders."

For instance, if a person is extradited from state A to state B,

and B then discovers that a technical obstacle prevents it

from prosecuting her, B should be able to return her to A for

prosecution; any other reading of the treaty might allow a

suspect to escape prosecution altogether. Or, to choose an

example closer to the facts of this case, if state A tries and

convicts a defendant for certain crimes associated with a

hijacking (as Malta tried Rezaq for murder, attempted mur-

der, and hostage-taking), there is no indication that A is

barred from then extraditing her to B once she has served

her sentence, so that B may try the defendant for different

crimes associated with the same hijacking (as the United

States tried Rezaq for air piracy).2

__________

2 Rezaq, of course, was not extradited at all. Thus, to prevail on

this point, he would need to show both that options of extradition

and prosecution are mutually exclusive, and that this bar extends to

all successive prosecutions, whether or not a state actually obtains

custody of a defendant through extradition. Because Rezaq cannot

make out the first half of this argument, we need not address the

second.

The travaux prparatoires for the Hague Convention rein-

force our conclusion that the treaty does not incorporate a

special bar on sequential prosecution. They show that the

treaty's negotiators considered and rejected the possibility of

expressly barring sequential prosecutions through a ne bis in

idem provision (a term for double-jeopardy provisions in

international instruments; another term is non bis in idem).

The states opposed to this idea, whose views carried the day,

argued that "the principle was not applied in exactly the same

manner in all States," and that "[i]n taking a decision whether

to prosecute, and, similarly, a decision whether to extradite,

the State concerned will, in each case, apply its own rule on

the subject of ne bis in idem." International Civil Aviation

Organization, Legal Committee, 17th Sess., Doc. 8877-LC/

161, at 8 (1970). This is, of course, exactly what the United

States has done in applying its own double jeopardy rules.

Nor is there any indication that Congress, in enacting

section 1472(n), read the Hague Convention differently, or

intended to subject prosecutions under section 1472(n) to a

heightened double jeopardy standard. The text and legisla-

tive history of section 1472(n) are both devoid of evidence

pointing to such a conclusion. In the absence of any sign that

either section 1472(n) or the Hague Convention undertook to

impose a more stringent than usual double-jeopardy rule, we

conclude that Rezaq's prosecution in Malta was not an obsta-

cle to his subsequent prosecution, in this proceeding, on air

piracy charges.

__________

A different argument might have more persuasive force. Article

4(2) of the Hague Convention requires each state to "establish its

jurisdiction over the offence in the case where the alleged offender

is present in its territory and it does not extradite him pursuant to

Article 8" (emphasis added). A person who has already been tried,

convicted, and punished for hijacking may no longer qualify as an

"alleged offender," and so may not be subject to a second prosecu-

tion for the same crime. Rezaq would have some difficulty making

this argument, however, as his trial in Malta was not for hijacking.

As he did not make this argument, we will not address it further.

B. Manufactured Jurisdiction

Rezaq's next argument is that section 1472(n) only applies

to defendants that are "afterward found in the United

States," and that he was not "afterward found in the United

States," but involuntarily brought here for the express pur-

pose of prosecution.

Under a rule known as the Ker-Frisbie doctrine, "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 jurisdic-

tion by reason of a 'forcible abduction'." Frisbie v. Collins,

342 U.S. 519, 522 (1952) (quoting Ker v. Illinois, 119 U.S. 436

(1886)). This general rule does admit of some exceptions; for

instance, an extradition treaty may provide that it is "the only

way by which one country may gain custody of a national of

the other country for the purposes of prosecution," United

States v. Alvarez-Machain, 504 U.S. 655, 664 (1992), and we

have also suggested that there may be a "very limited"

exception for certain cases of " 'torture, brutality, and similar

outrageous conduct.' " Yunis, 924 F.2d at 1092-93 (quoting

United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d

Cir. 1975)).

Rezaq's argument is, in effect, that the phrase "afterward

found in the United States" appearing in section 1472(n)

creates a statutory exception to the Ker-Frisbie rule, and

prevents the government from bringing a defendant into the

United States for the express purpose of prosecution. Al-

though we agree that Congress has the power to create

statutory exceptions to the Ker-Frisbie doctrine, we do not

think that section 1472(n) creates such an exception.

We first consider the United States's contention that Yunis

controls this case. Yunis addressed a similar question, but

with one important difference. The defendant in Yunis had

also been brought to the United States against his will for

trial, and also argued that this meant that he had not been

"afterward found in the United States" for purposes of sec-

tion 1472(n). We concluded that the latter phrase "does not

indicate the voluntariness limitation urged by Yunis," as the

phrase was intended to implement the Hague Convention's

requirement that states extradite or prosecute hijackers

"present in" their territory, and this requirement applies

irrespective of how the hijacker came to be there. Yunis, 924

F.2d at 1092.

But Yunis had originally been brought to the United States

on "hostage-taking and other charges," and indicted for air

piracy only while awaiting trial on these charges. The Yunis

court considered this fact of some significance, noting that its

task was to "determine whether, once arrested and brought

to this country on those other charges, Yunis was subject to

prosecution under the Antihijacking Act as well." Id. Re-

zaq, unlike Yunis, was brought to the United States for the

specific purpose of prosecution on hijacking charges. As

authority for his contention that this distinction is controlling,

Rezaq points to two cases in which courts reversed convic-

tions because the United States had improperly manufactured

an essential jurisdictional element of the offense. See United

States v. Coates, 949 F.2d 104, 106 (4th Cir. 1991); United

States v. Archer, 486 F.2d 670, 685-86 (2d Cir. 1973). In both

Coates and Archer, the defendant was prosecuted for a crime

an element of which was that the defendant must use "a

facility in interstate ... commerce." (In Coates, the crime

was murder for hire, 18 U.S.C. s 1958(b)(2); in Archer, it was

a racketeering offense, 18 U.S.C. s 1952 (the "Travel Act").)

In both instances, federal officials attempted to satisfy the

interstate commerce element of the offense by traveling out

of state and telephoning the defendant, Coates, 949 F.2d at

105; Archer, 486 F.2d at 681-82; both cases found that this

act amounted to manufacturing federal jurisdiction.

In both Coates and Archer, it was clear that, in creating

jurisdiction, the government had contravened a central pur-

pose of the underlying statute. For both statutes, it was

appropriate to assume that the interstate commerce element

was intended to allocate prosecutorial jurisdiction between

federal authorities and state or local authorities, and there-

fore to limit federal jurisdiction. See Archer, 486 F.2d at 680

(noting that the court is "bound ... to consider the demands

of federalism" in construing the Travel Act). The Archer

court cited legislative history which further reinforced this

conclusion. At the time the statute was enacted, Attorney

General Kennedy "told the Senate Judiciary Committee that

the act was necessary to aid local law enforcement officials in

many instances where 'the top men of a given criminal

operation resided in one State but conducted their illegal

activities in another.' " 486 F.2d at 679 (quoting Hearings on

S. 1653-1658, S. 1665 before the Senate Judiciary Committee

on the Attorney General's Program to Crush Organized

Crime and Racketeering, 87th Cong., 1st Sess. (1961) at 15-

17). The government's action in Archer in itself creating the

interstate commerce element thus extended the Travel Act

beyond its intended purpose of permitting federal officials to

assist state officials in prosecuting this class of crime.

By contrast, there are no strong policies underlying section

1472(n) that render it inappropriate for the government to

bring a defendant to the United States against his will for the

specific purpose of prosecution. Neither the Hague Conven-

tion nor section 1472(n) appears to have been intended to

establish a firm allocation of prosecutorial authority between

nations. It is possible to imagine a treaty that would do so;

for instance, in adopting a treaty to criminalize mislabeling of

products, nations might decide that it was best for each

country's consumer protection authorities to have the sole

power to decide when and how mislabeling should lead to

criminal charges, and draft the treaty accordingly. It might

then be inappropriate for United States authorities to bring a

foreign offender to the United States for trial under a crimi-

nal law enacted to implement this hypothetical treaty.

Here, however, we have already concluded that Article 4 of

the Hague Convention, which addresses the assertion of

national jurisdiction, is intended to establish a minimum set of

circumstances in which states must assert jurisdiction, rather

than to limit the circumstances in which they may do so. It

follows that the Hague Convention was not intended to

establish a compartmentalized scheme of national jurisdiction

(like that in our hypothetical product-labeling treaty). Nor

does section 1472(n) enact such a scheme. The Senate Re-

port on the implementing legislation explained that section

1472(n) was included to implement Article 4(2) of the Conven-

tion, and therefore

includes a special provision establishing jurisdiction over

the offense of hijacking wherever it occurs anywhere

outside the special aircraft jurisdiction of the United

States but the alleged offender is later found in the

United States. This is the so-called universal jurisdiction

provision which makes hijackers outlaws wherever they

are found.

S. Rep. No. 93-13 at 3-4 (1973). This passage--particularly

its statement that the provision "makes hijackers outlaws

wherever they are found"--indicates that Congress saw sec-

tion 1472(n) as permitting broad assertion of jurisdiction over

hijackers. It shows no signs that Congress envisioned the

provision as allocating jurisdiction between the United States

and other nations.3

The question remains, then: what does the phrase "after-

ward found in the United States" mean? As we observed in

Yunis, this phrase appears to have been intended to imple-

ment the Hague Convention's requirement that the United

States either extradite or prosecute all hijackers "present in"

its territory. Yunis, 924 F.2d at 1092. Thus, the word

"found" means only that the hijacker must be physically

located in the United States, not that he must be first

detected here. Rezaq notes that the fact that a defendant is

present before a United States court necessarily implies that

he is "found in the United States," so that the latter require-

ment will always be satisfied. But this does not mean that

this language is empty of meaning; at a minimum, it confirms

the rule, issuing from the Confrontation Clause of the Sixth

Amendment and from the Due Process Clause, that a defen-

__________

3 Rezaq has not argued that he should have been brought to the

United States through extradition, rather than being brought here

by force. We therefore do not reach the question of whether the

extradition provisions of the Hague Convention, when they apply,

are the exclusive route by which a defendant may be brought into

the United States. Cf. Alvarez-Machain, 504 U.S. at 664 (rejecting

a similar claim under the United States's extradition treaty with

Mexico).

dant ordinarily may not be tried in absentia. See United

States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam).4

C. The "Death Results" Provision

Rezaq avers that it was improper for the district court to

apply section 1472(n)'s "death results" provision (that is, its

provision requiring the imposition of the death sentence or of

life imprisonment in cases in which death results), as the

Hague Convention only permits states to punish additional

crimes associated with a hijacking if certain jurisdictional

prerequisites are met.

Rezaq's argument is based on the text of Articles 4(1) and

4(2) of the Hague Convention. Article 4(1) provides that

__________

4 Rezaq also points out that Congress revised section 1472(n) in

1996, and asserts that our reading of the "afterward found" lan-

guage would render much of the revised statute surplusage. The

revised statute, which now appears at 49 U.S.C. s 46502(b), pro-

vides in relevant part:

(2) There is jurisdiction over the offense in paragraph (1) if--

(A) a national of the United States was aboard the aircraft;

(B) an offender is a national of the United States; or

(C) an offender is afterwards found in the United States.

49 U.S.C. s 46502(b). Rezaq argues that, under our reading of

"afterward found," every case will always be within section

46501(2)(C), as a defendant who is before a United States court will

always be present in the United States; thus, he argues, under this

reading sections (A) and (B) of the statute become unnecessary.

Congress may well have had good reasons to include the three

alternative bases of jurisdiction in section 46501(2). For example,

some of the United States's extradition treaties require that, in

order to obtain custody over a fugitive, the United States present

an arrest warrant to the other state. See, e.g., Agreement for the

Surrender of Fugitive Offenders, Dec. 6, 1996, U.S.-Hong Kong,

Art. 8, 36 I.L.M. 847, 852. Although we do not decide this question,

we note that the United States might find it difficult to obtain an

arrest warrant for a fugitive in Hong Kong under a statute that

provides that the offender be "found in the United States"; the

alternative bases of jurisdiction may thus serve as long-arm provi-

sions.

Contracting States "shall" establish jurisdiction over both the

hijacking offense and "any other act of violence against

passengers or crew" (a) "when the offence is committed on

board an aircraft registered in that State," (b) "when the

aircraft on board which the offence is committed lands in [the

State's] territory with the alleged offender still on board," or

(c) "when the offence is committed on board an aircraft leased

without crew to a lessee" that is based in the state in

question. When an offender is present in a state's territory

without these additional connections being present, the Con-

vention only requires the state to assert jurisdiction "over the

offence," and not over the associated acts of violence. Article

4(2).

Rezaq argues that, because none of the three jurisdictional

elements listed in Article 4(1) is present here, this case must

fall within Article 4(2); thus, he claims, it is not appropriate

to try him for his "other acts of violence." But Article 4(3)

expressly provides that the Convention "does not exclude any

criminal jurisdiction exercised in accordance with national

law." Thus, if Congress wished to reach "other acts of

violence," the Hague Convention allowed it to do so.

It is abundantly clear that Congress intended for the

"death results" provision of section 1472(n) to apply irrespec-

tive of whether the additional jurisdictional elements of Arti-

cle 4(1) are present. Indeed, it would seem that the only

purpose of the "death results" provision of section 1472(n) is

to reach cases in which these additional elements are absent,

because if any of the Article 4(1) jurisdictional elements is

present, the relevant statute is not section 1472(n), but sec-

tion 1472(i). This is because section 1472(n) applies only to

offenses committed "aboard an aircraft in flight outside the

special aircraft jurisdiction of the United States." The "spe-

cial aircraft jurisdiction of the United States" is defined in 49

U.S.C. app. s 1301(34) (1994); that provision includes, among

others, subsections that correspond to subsections (a), (b),

and (c) of Article 4(1) of the Hague Convention. Thus, if the

additional jurisdictional elements of Article 4(1) are present,

the relevant criminal provision will be section 1472(i), which

applies to hijackings within the "special aircraft jurisdiction of

the United States." 5 See also H.R. Rep. No. 93-885, at 12

(1974) (explaining that an adjustment to section 1472(i) was

intended to "make the penalty which may be imposed for

'aircraft piracy' committed within the special aircraft jurisdic-

tion of the United States identical with the penalty which may

be imposed for such offense when committed outside the

special aircraft jurisdiction of the United States."). The

"death results" provision of section 1472(n) therefore cannot,

as a rule, apply to cases in which the additional jurisdictional

elements listed in Article 4(1) are present; such cases will

instead come within section 1472(i), which has its own "death

results" provision. Rezaq's proposed reading of the "death

results" provision of section 1472(n) would thus render it

totally irrelevant.

Rezaq also argues that applying the "death results" provi-

sion to this case would violate the normal jurisdictional rules

of international law. International law imposes limits on a

state's "jurisdiction to prescribe," that is, its ability to render

its law applicable to persons or activities outside its borders;

states may only exercise jurisdiction to prescribe under a

limited number of theories. See Restatement (Third) of

Foreign Relations Law s 401 (1987). This case, however,

clearly falls within at least one such theory, the so-called

"passive personality principle." That principle "asserts that a

state may apply law--particularly criminal law--to an act

committed outside its territory by a person not its national

where the victim of the act was its national." Restatement

(Third) of Foreign Relations Law s 402 cmt. g (1987). "The

principle has not been generally accepted for ordinary torts

or crimes, but it is increasingly accepted as applied to terror-

ist and other organized attacks on a state's nationals by

reason of their nationality...." Id. Scarlett Rogenkamp

was a United States citizen, and there was abundant evidence

that she was chosen as a victim because of her nationality.

__________

5 In 1994, 49 U.S.C. s 1472(i) and (n) became 49 U.S.C.

s 46502(a) and (b), respectively; the point made in the text remains

valid as to these new provisions.

This suffices to support jurisdiction on the passive personality

theory.6

D. Evidence as to the Deaths of Passengers

Rezaq repeatedly sought to prevent the jury from learning

about the deaths of passengers aboard the Air Egypt plane,

and to insulate the jury from details of those deaths. He

moved unsuccessfully to strike a reference in the indictment

to the deaths of passengers he shot, and to bifurcate the trial

into two phases, one addressing the hijacking, and the second

the resulting deaths. He also offered to stipulate to the fact

and manner of the hostages' deaths; the United States

declined to stipulate, and the district court refused to compel

it to do so. Rezaq also, without success, opposed the United

States's efforts to introduce into evidence graphic details of

Scarlett Rogenkamp's autopsy, including photographs, autop-

sy reports, and the testimony of a pathologist. Finally,

Rezaq sought unsuccessfully to prevent the United States

from adverting to the fact that 57 passengers died when the

__________

6 Of course, Congress did not expressly limit the reach of the

"death results" provision to cases in which the death was that of an

American citizen killed because of her nationality. International

law might permit the United States to assert jurisdiction in other

situations; hijacking crimes are subject to universal jurisdiction, see

Restatement (Third) of Foreign Relations Law s 404, and the

same may be true of deaths resulting from a hijacking. We do not

decide this question.

Had we found that Congress exceeded its jurisdiction to pre-

scribe under international law in enacting the "death results"

provision, we would have then needed to decide whether we should

enforce the "death results" provision nevertheless. Compare Re-

statement (Third) of Foreign Relations Law s 114 ("Where fairly

possible, a United States statute is to be construed so as not to

conflict with international law or with an international agreement of

the United States") with Federal Trade Comm'n v. Compagnie de

Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1323 (D.C. Cir.

1980) (stating that we are "obligated to give effect to an unambigu-

ous exercise by Congress of its jurisdiction to prescribe even if such

an exercise would exceed the limitations imposed by international

law").

Egyptian commandos stormed the plane. Rezaq argues that

the district court's rulings on all of these issues were errone-

ous.

1. Motion to Strike

We first discuss Rezaq's motion to strike from the indict-

ment references to the deaths of Mendelson and Rogenkamp,

and to the attempted killing of the other three passengers.

Such motions are permitted under Federal Rule of Criminal

Procedure 7(d); "a motion to strike surplusage [from the

indictment] should be granted only if it is clear that the

allegations are not relevant to the charge and are inflammato-

ry and prejudicial." 1 Charles Alan Wright, Federal Prac-

tice and Procedure s 127, at 426 (1982); see also United

States v. Huppert, 917 F.2d 507, 511 (11th Cir. 1990). Such a

motion "is addressed to the discretion of the court," Wright,

supra, at 426; "[t]he standard under Rule 7(d) has been

strictly construed against striking surplusage." United

States v. Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir. 1980).

The district court was well within its discretion in conclud-

ing that the prejudicial effect of these references did not

outweigh their relevance. The district court observed that an

element of air piracy under section 1472(n) is that the defen-

dant "unlawfully, by force or threat thereof, or by any other

form of intimidation, seizes, or exercises control of" an air-

craft. See United States v. Rezaq, 908 F. Supp. 6, 9 (D.D.C.

1995). The fact that Rezaq shot several passengers was

clearly relevant to establishing that he had seized the aircraft,

and later maintained control of it, by "force" or by "intimi-

dation."

2. Motion to Bifurcate

Rezaq also moved to bifurcate the proceedings, and have

the jury first consider whether he had committed the offense

of air piracy, as defined in section 1472(n), and then decide

whether the "death results" provision in section 1472(n)(1)(B)

applied. He asserted that the "death results" provision was

simply a penalty enhancement provision, so that such bifurca-

tion was necessary. The district court disagreed, finding that

the "death results" provision was an element of the substan-

tive offense defined by section 1472(n), and that severance

should therefore be denied.

This court has wrestled with such problems before. In

both United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987),

and in United States v. Michael, 10 F.3d 838 (D.C. Cir. 1993),

we were faced with the question of whether a statutory

provision created two substantive offenses, or only one of-

fense with the possibility of an enhanced penalty. Jackson

involved a firearms statute that subjected those with previous

convictions to higher penalties; Michael, a drug statute that

applied higher penalties to possession of crack cocaine. The

statutes we construed in Jackson and Michael and the one

before us here all lack traits that might easily classify them

as either creating two substantive offenses or creating one

offense with an enhanced penalty. Each lacks " 'common

indicia of sentence-enhancement provisions' " like "an explicit

reference to a conviction ..., procedures for a sentencing

hearing, a penalty derived as a multiplier of another offense,

or a title indicating that it is a sentence-enhancement provi-

sion." Jackson, 824 F.2d at 23 (quoting United States v.

Davis, 801 F.2d 754, 755-56 (5th Cir. 1986)). But the statutes

also do not expressly define two separate offenses; instead,

they merely " 'specif[y] one of the preceding classes of per-

sons ... for different treatment.' " Jackson, 824 F.2d at 23

(quoting United States v. Hawkins, 811 F.2d 210, 219 (3d Cir.

1987)).

In Jackson, we found that the fact of a defendant's prior

conviction was a sentence enhancement, not an element of a

substantive offense. The legislative history of the statute

expressly treated this factor as a sentence enhancement, and

we also observed that it would be highly prejudicial for the

jury to consider this factor in deciding the defendant's guilt.

See Jackson, 824 F.2d at 25-26. In Michael, by contrast,

introducing evidence at trial that a drug was cocaine base

would not have created an unusual risk of prejudice. Instead,

we reasoned that, because treating this factor as a sentence

enhancement would "shift[ ] the issue [of the nature of the

drug] from jury to court and deny[ ] the defendant the benefit

of the reasonable doubt standard, ... we are reluctant to

infer such classification in the absence of a reasonably clear

statement from Congress, at least for a fact embedded in the

statutory section defining the crime and closely related to the

circumstances of the crime." Michael, 10 F.3d at 842 (cita-

tion omitted). We found no such clear statement in the

statute or its legislative history, and so treated this factor as

an element of a distinct offense.

The evidence before us is somewhat more equivocal than

that in Michael. Section 1472(n)(1)(A) and section

1472(n)(1)(B) (in which the "death results" provision appears)

are both introduced by the phrase "shall be punished," and

both list punishment options, suggesting the "death results"

factor relates to punishment, not to guilt or innocence.7 We

do not think, however, that the placement of the "death

results" factor after the phrase "shall be punished" should be

accorded controlling weight. The structure of section 1472(n)

is complex: it states the elements of " 'an offense,' as defined

in the [Hague Convention]" in section 1472(n)(2), but then

adds further substantive elements to this offense in section

1472(n)(1), including the requirement that the offense be

committed "aboard an aircraft in flight outside the special

aircraft jurisdiction of the United States" and that the defen-

dant be "afterward found in the United States." Given this

convoluted structure, it should not be that surprising to find

still another additional element, defining an additional sub-

stantive offense, in section 1472(n)(1)(B), after the statute

appears to have changed the subject to "punishment." 8

__________

7 The relevant section of the statute provides that a defendant

"shall be punished (A) by imprisonment for not less than 20 years;

or (B) if the death of another person results from the commission or

attempted commission of the offense, by death or imprisonment for

life." 49 U.S.C. app. s 1472(n)(1).

8 Indeed, in the legislative history of section 1472(n)(1), the House

Committee on Interstate and Foreign Commerce described the

function of section 1472(n)(1) as a whole as to "provide[ ] penalties,"

but then immediately qualified this statement:

The United States also points to the structural relationship

of section 1472(n) to another statutory provision, section

1473(c)(2). Under that provision, a death-penalty sentencing

hearing must be held when a defendant "is found guilty of or

pleads guilty to an offense under section 1472(i) or 1472(n) of

this title for which one of the sentences provided is death."

49 U.S.C. app. s 1473(c)(2). The death-penalty sentencing

hearing is to occur "before the jury which determined the

defendant's guilt." s 1473(c)(2)(A). The hearing may also

occur before "a jury impaneled for the purpose of the hear-

ing," but only if the defendant had pleaded guilty, was

convicted in a trial without a jury, or if "good cause" existed

to discharge the previous jury. s 1473(c)(2)(B). Finally, the

hearing may be "before the court alone," but only "upon the

motion of the defendant and with the approval of the court

and the Government." s 1473(c)(2)(C).

Construing the "death results" provision as a penalty en-

hancement would be markedly at odds with the structure and

purposes of section 1473(c). Section 1473(c) is triggered

whenever a defendant "is found guilty of or pleads guilty to

__________

Paragraph (1) of the new subsection (n) provides penalties for

any person who commits an "offense" (as defined in the Hague

Convention) aboard an aircraft in flight outside the special

aircraft jurisdiction of the United States, and is afterward

found in the United States. This paragraph provides for a

penalty of imprisonment for not less than 20 years, or, if the

death of another person results from the commission or at-

tempted commission of an "offense," the penalty may be death

or imprisonment for life. The imposition of the death penalty

is subject to the procedural requirements set forth in section

105 of the reported bill, discussed in detail below.

H.R. Rep. No. 93-885, at 12 (1974). Congress thus seems to have

seen all of section 1472(n)(1) to relate to penalties, but nonetheless

included in that subsection elements of the substantive offense of

air piracy. We read the "death results" provision to be just one

more such element. Cf. Michael, 10 F.3d at 841-42 (noting that

congressional references to increased penalties need not always

signal penalty enhancements, but may at times indicate the creation

of a distinct offense).

an offense under sections 1472(i) or 1472(n) of this title for

which one of the sentences provided is death." If section

1472(n) does not define two distinct crimes, then a defendant

cannot be "found guilty of or plead[ ] guilty to an offense ...

for which one of the sentences provided is death"; a defen-

dant can only be found guilty of or plead guilty to a general-

ized offense under section 1472(n). Before section 1473(c)

could apply, there would need to first be a guilty plea or

guilty verdict; then an intermediate proceeding, presumably

tried to the court (the usual rule at sentencing proceedings)

as to whether "death resulted"; and then, if necessary, the

death-penalty sentencing hearing provided for in section

1473(c). This structure is inconsistent with the language of

section 1473(c), which contemplates a verdict that leads di-

rectly into a death-penalty sentencing hearing. It also ig-

nores the strong policy expressed in section 1473(c) of trying

all matters related to the imposition of the death sentence to

a jury, where possible. If Congress intended to establish an

ornate, three-stage procedure for the imposition of the death

sentence in air piracy cases--with the middle stage, and only

that stage, tried to the court--it would presumably have said

so explicitly, either in the statute or in its legislative history.

Neither contains any indication that this is what Congress

intended.

This is an appropriate case then in which to apply Mi-

chael's rule that "we are reluctant to infer ... classification

[as a penalty enhancement] in the absence of a reasonably

clear statement from Congress, at least for a fact embedded

in the statutory section defining the crime and closely related

to the circumstances of the crime." Michael, 10 F.3d at 842.

The fact that a death resulted from a hijacking is "closely

related" to the circumstances of the hijacking; indeed, this

fact will ordinarily be admissible at trial, to prove that the

defendant used force or intimidation in committing the crime.

Cf. United States v. Rivera-Gomez, 67 F.3d 993, 996 (1st Cir.

1995). As to the statute's structure, we have found that

Congress did not clearly demarcate factors related to guilt

from those related to punishment in drafting section 1472(n),

and that the need to harmonize section 1472(n) with section

1473(c) militates against the penalty-enhancement reading.

We recognize that our reading of the "death results" provi-

sion of section 1472(n) is at odds with the prevailing judicial

interpretation of a number of other statutes that incorporate

"death results" provisions. Under federal statutes criminaliz-

ing arson, see United States v. Ryan, 9 F.3d 660, 667-69 (8th

Cir. 1993), vacated in part on other grounds, 41 F.3d 361

(1994) (interpreting 18 U.S.C. s 844(i)), carjacking, see

Rivera-Gomez, 67 F.3d at 996 (1st Cir. 1995) (interpreting 18

U.S.C. s 2119); United States v. Williams, 51 F.3d 1004,

1009 (11th Cir.), cert. denied, 116 S. Ct. 258 (1995) (same), and

certain civil rights violations, see Catala Fonfrias v. United

States, 951 F.2d 423, 424-25 (1st Cir. 1991) (interpreting 18

U.S.C. ss 241, 242), courts have read similarly-worded "death

results" provisions as imposing penalty enhancements, not as

creating separate offenses. We do not think that these cases

conflict with our disposition here. Those cases generally

turned on factors, such as legislative history, specific to the

statutes in question. See, e.g., Ryan, 9 F.3d at 668; Catala

Fonfrias, 951 F.2d at 427. They also relied on structural

features of the statutes in question, like the fact that they

only "single[d] out a subset of [criminals] for more severe

punishment." Ryan, 9 F.3d at 667. We found in Jackson,

however, that structural cues of this kind may not be disposi-

tive in the face of other contextual evidence. See Jackson,

824 F.2d at 23-24. Here, the unusual relationship of sections

1472(n) and 1473(c)(2) leads us to conclude that the "death

results" provision must be classified as an element of a

substantive offense. We therefore affirm the district court's

ruling that Rezaq was not entitled to a bifurcated proceeding.

3. The Proffered Stipulation

Rezaq offered to stipulate that Mendelson and Rogenkamp

had died, and claims that the district court should have

compelled the United States to accept his offer. In Old Chief

v. United States, 117 S. Ct. 644 (1997), the Supreme Court

reaffirmed the general rule that "the prosecution is entitled to

prove its case free from any defendant's option to stipulate

the evidence away." Id. at 654. Old Chief established an

exception to this rule for crimes like possession of a firearm

by a convicted felon, in which the evidentiary issue is one of

"status," id. at 655, but that exception does not apply to this

case, and Rezaq has not established that any other exception

should apply. Thus, the United States was free to decline to

stipulate.

4. Rogenkamp's Autopsy

The United States presented extensive evidence at trial

relating to Rogenkamp's autopsy. This included the testimo-

ny of a pathologist, who described the autopsy in considerable

clinical detail, and testified that Rezaq's bullet had caused

Rogenkamp's death; the pathologist also discussed the cause

of Mendelson's death on the basis of autopsy records that he

had reviewed. The United States also introduced an autopsy

report, and a number of enlarged photographs from the

autopsy, which were placed on an easel near the jury box;

the United States displayed the photographs again during

closing arguments.

Rezaq had filed a motion in limine seeking to exclude this

evidence as overly prejudicial. Federal Rule of Evidence 403

permits the district court to exclude evidence "if its probative

value is substantially outweighed by the danger of unfair

prejudice." Fed. R. Evid. 403. The district court according-

ly weighed the probative value of this evidence against the

danger of unfair prejudice. As to probative value, the district

court found the evidence relevant to both the "force or

intimidation" element of the statute and the "death results"

element. The district court found that the autopsy reports

were highly probative as to the fact of Rogenkamp's death, as

to its cause, and as to "the fact that the killings were

intentional." It found that the autopsy photographs were

likewise "highly probative" as to the first two of these factors,

the fact and cause of death.

In weighing the prejudicial effect of this evidence, the

district court found that the autopsy reports had no prejudi-

cial effect, as they were "straightforward and factual," and

nothing in them was likely to inflame the jury. It observed

that some of the autopsy photographs similarly presented no

danger of prejudice; others it found were "more graphic in

nature," but it concluded that, "[i]n light of the highly proba-

tive value of these particular photographs," the danger of

unfair prejudice did not substantially outweigh the evidence's

probative value.9 Rezaq asserts that the district court erred

in admitting this evidence.

"We review Rule 403 determinations most deferentially and

will reverse only for 'grave abuse' of the trial court's discre-

tion." United States v. Johnson, 46 F.3d 1166, 1171 (D.C.

Cir. 1995) (quoting United States v. Manner, 887 F.2d 317,

322 (D.C. Cir. 1989)). Here, although we might not have

admitted at least one of the most grisly photographs into

evidence, we cannot say that the district court's decision to do

so amounted to "grave abuse."

We begin with the evidence's probative value. The fact

that death resulted from the hijacking was an element of the

offense with which Rezaq was charged. The autopsy report,

the testimony of the pathologist, and the photographs all

demonstrated that it was Rezaq's bullets that killed Rogen-

kamp and Mendelson. The fact that Rezaq's victims died is

also relevant to the "force and intimidation" element of the

statute. See Rivera-Gomez, 67 F.3d at 996 (1st Cir.1995) ("It

is difficult to conceive of a situation in which the death of a

victim would not be relevant to the use of force and violence

during the commission of an attempted carjacking."). The

autopsy evidence corroborated the government's account of

the way in which Rezaq used systematic executions to main-

tain control of passengers and airport personnel.

Based on this analysis, we can dismiss the autopsy report

and the pathologist's testimony from consideration immedi-

ately. Both had some small prejudicial effect, as they pre-

sented unsettling details of the way in which Rezaq's victims

__________

9 In two of the autopsy photographs, Rogenkamp was unclothed.

The United States offered to edit the photographs, and the district

court permitted them to be introduced on this condition. They

appear never to have been introduced, however.

died; but this effect does not "substantially outweigh" the

evidence's probative value. All but one of the autopsy photo-

graphs that were introduced into evidence fell into the same

category. These photographs were fairly antiseptic; they

included three photographs of the entry wound in Rogen-

kamp's head, an x-ray image of her skull with the bullet

embedded in it, and a photograph of the bullet itself. The

harder case is a close-up photograph showing the removal of

the bullet from Rogenkamp's skull. This photograph was

notably graphic: in it, a large triangular portion of the skin

on Rogenkamp's skull has been removed, revealing bone,

tissue, and a large quantity of blood (as well as the bullet).

"Blood will have blood," William Shakespeare, Macbeth,

Act 3, sc. 4; accordingly, photographs of gore may inappro-

priately dispose a jury to exact retribution. A number of

courts have recognized this principle. For instance, in Ferri-

er v. Duckworth, 902 F.2d 545, 548 (7th Cir. 1990), the court

found it improper to admit photographs, "in color and en-

larged to twelve square feet," of the victim's blood on the

floor of a bar, as the blood "was not relevant to any issue in

the case," and "[t]he only conceivable reason for placing [the

photographs] in evidence was to inflame the jury" against the

defendant. Id. at 548. See also Gomez v. Ahitow, 29 F.3d

1128, 1139 (7th Cir. 1994) (similar). The fact that the photo-

graph in this case was taken in a clinical setting somewhat

reduced its prejudicial effect, but the photograph neverthe-

less created some risk of prejudice. Nor was its probative

value great. Autopsy photographs can have immense proba-

tive value, if for example they confirm the prosecution's

theory about the manner in which the crime was committed.

See United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir.

1996) (autopsy photographs confirmed witness's account of

the crime, establishing that bullets fired by defendant had

indeed passed through the body of the victim and injured the

witness). Here, however, the photograph only provided fur-

ther corroboration that Rogenkamp was shot in the head;

because the bullet was visible in the other photographs, this

point did not especially need elucidation.10

Although some might have doubts about the prudence of

admitting this photograph into evidence, we cannot say that

the district court's decision to do so amounted to "grave

abuse." The photograph did have some probative value, and

its prejudicial effect, although significant, was not extreme.

"The trial judge's exercise of discretion in balancing the

prejudicial effect and probative value of photographic evi-

dence of this type is rarely disturbed." United States v.

Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986).

5. The Storming of the Plane

Rezaq also sought to bar the United States from introduc-

ing into evidence the fact that 57 passengers died in the

Egyptian commandos' ill-fated storming of the plane. The

district court denied his motion, finding that the United

States could reasonably contend that Rezaq's claimed post-

traumatic stress disorder only developed after the hijacking,

and that the storming of the plane could have contributed to

the symptoms his experts had identified. At trial, the United

States brought up the storming of the plane in precisely this

context, while cross-examining Rezaq's experts on post-

traumatic stress disorder.

The fact that 57 passengers died in the storming of the

plane might well have been unfairly prejudicial. Even though

these deaths were not at issue in the case, the jury could have

concluded that someone should be punished for them; the

relevant Egyptian officials were not before the court, so that

Rezaq would have borne the brunt of the jury's ire. But the

facts surrounding the storming of the plane also had signifi-

cant probative value, as it could be argued that the traumatic

effects of this incident were comparable to the effects of many

__________

10 The United States also maintains that it was appropriate to use

the autopsy evidence to attack Rezaq's defense of obedience to

orders, as obedience to orders is not a defense if the orders are

plainly unlawful. But it would seem that the more direct way to

show that Rezaq's orders were plainly unlawful ex ante is to show

what those orders were, not how Rezaq carried them out.

of the incidents Rezaq himself cited as causes of his asserted

PTSD. We therefore find that the district court's decision to

admit the evidence was an appropriate application of Rule

403.11

E. Mid-Trial Publicity

The night after the government's closing argument, on

Wednesday, July 17, 1996, TWA Flight 800 crashed off the

coast of Long Island, on its route from New York to Paris.

The disaster was covered extensively in various media; in-

deed, one survey indicated that it was the most heavily

covered news event of 1996. News coverage was filled with

speculation as to the cause of the crash, and one frequently-

cited theory was that terrorists (perhaps from the Middle

East) were responsible. News coverage also observed that

the plane had previously flown out of Athens, which one

article (in the Washington Post) said was "known as a base

for terrorists." Don Phillips, 747 Explodes with 229 Aboard,

Washington Post, July 18, 1996, at A1, A19. Athens, of

course, was where Rezaq and his confederates boarded the

Air Egypt flight.

The jury had not been sequestered or instructed to avoid

news coverage, and was thus presumably exposed to the

initial news of the crash. On the morning after the crash, at

the request of Rezaq's counsel, the district court told the jury

that the crash was unrelated to the case and to put the event

out of their minds. Rezaq's counsel did not, however, ask

that the jury be told to avoid further news coverage, and they

were not given any such instruction. Rezaq's counsel gave

his closing argument that same day, and the jury began to

deliberate that afternoon. On the following day, Friday, July

19, after further news coverage speculating about terrorism,

__________

11 The district court also concluded that the storming of the plane

was relevant to the timing of the end of the hijacking, which is

defined by section 1472(n) as the time that the aircraft is restored

to the control of "competent authorities." It was not contested that

Rezaq was in control of the aircraft for an extended period of time;

the precise timing of the end of the hijacking was not relevant to

any issue in the case.

Rezaq moved for a mistrial; the motion was denied. That

afternoon, the jury returned a guilty verdict. Rezaq now

argues that the district court erred in declining to grant his

motion for a mistrial, and, in the alternative, that the district

court should have conducted individual voir dire of the jurors,

and that its failure to do so requires that he receive a new

trial.

Given that it is quite unlikely that publicity about an

unrelated air crash could impair a jury's ability to remain

impartial, we find that the district court's response to the

publicity was appropriate in all respects. This court has

adopted a three-part approach for district courts to apply in

addressing potentially prejudicial media influence on the jury.

The court is to (1) decide whether the material is prejudicial,

(2) decide whether jurors were exposed to it, and (3) examine

jurors to see if they can remain impartial. See United States

v. Williams-Davis, 90 F.3d 490, 501 (D.C. Cir. 1996), cert.

denied, 117 S. Ct. 986 (1997). As to the second factor, the

jurors hardly could have avoided exposure. As to the first,

we find that there was at most a modest risk of prejudice. In

most cases involving prejudicial publicity during trial, the

publicity relates directly to the issues in the trial itself; here,

the publicity was about an unrelated event that might have

indirectly influenced the jury's perceptions of the case before

it. Given the magnitude of the crash, the saturation news

coverage, and the speculation that terrorists were to blame, it

is theoretically possible that the sensibilities of some jurors

might have been affected, heightening their reluctance to

consider on their merits Rezaq's defenses of insanity and

obedience to orders.12

__________

12 The emotionally compelling nature of the crash distinguishes

this case from United States v. Holton, 116 F.3d 1536, 1548 (D.C.

Cir. 1997), cert. denied, 66 U.S.L.W. 3457 (1998), in which we found

it "extremely unlikely" that a report on ABC's "Nightline" on

sentencing of crack cocaine offenders could have tainted the jury.

Holton was about a fairly obscure broadcast on an issue of public

policy; here, the publicity was about what the Washington Post

repeatedly called a "tragedy." See Rene Sanchez and Serge F.

Turning to the third element of Williams-Davis, Rezaq

complains that the district court, rather than conducting an

individual voir dire, only questioned the jury as a whole as to

whether it could remain impartial. Although "the method of

conducting the voir dire is left to the sound discretion of the

district court," Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir.

1993), the collective voir dire is not ordinarily the instrument

of choice for discerning the impartiality of jurors. See Cop-

pedge v. United States, 272 F.2d 504, 508 (D.C. Cir. 1959) ("It

is too much to expect of human nature that a juror would

volunteer, in open court, before his fellow jurors, that he

would be influenced in his verdict by a newspaper story of the

trial."). Here, however, the district court found, and Rezaq's

counsel agreed, that it was important to avoid linking the

crash with the trial in the jurors' minds, and that a single

general question, directed to the jury as a whole, was the

most appropriate way to accomplish this goal. Given the

close involvement of his counsel in the process of formulating

the court's response to the crash, Rezaq cannot object now to

the approach the district court adopted. Indeed, Rezaq's

counsel has effectively conceded on this appeal that he made

a strategic decision not to seek an individual voir dire, saying

that "[s]uch a suggestion from counsel would have undercut

the defense position that nothing could be done to alleviate

the prejudice short of a mistrial."

Nor did the district court err in declining to declare a

mistrial. The risk of prejudice from the crash-related publici-

ty, although real, was somewhat reduced by the fact that the

district court instructed the jurors to put the publicity out of

their minds. On balance, the risk falls short of that degree of

significance which has in other cases been found to warrant a

new trial. See, e.g., Waldorf v. Shuta, 3 F.3d 705, 711 (3d Cir.

1993) (jurors brought relevant news article into the jury room

and discussed it there); United States v. Littlefield, 752 F.2d

1429, 1432 (9th Cir. 1985) (similar); United States v. Lord,

__________

Kovaleski, TWA Travelers' Tragedy is Felt Across the Nation,

Washington Post, July 19, 1996, at A1.

565 F.2d 831, 838 (2d Cir. 1977) (news coverage revealing

prejudicial information about the defendant).

F. Restitution

The district court ordered that Rezaq pay a total of

$254,000 in restitution to seven victims. Rezaq argues that

the district court erred in the manner in which it calculated

the amount of his restitution, both in failing to consider his

ability to pay, and in failing to demand more detailed proof of

the amount of the victims' losses.

1. Ability to Pay

The provision under which the district court ordered resti-

tution states:

The court, in determining whether to order restitution

under section 3579 of this title and the amount of such

restitution, shall consider the amount of the loss sus-

tained by any victim as a result of the offense, the

financial resources of the defendant, the financial needs

and earning ability of the defendant and the defendant's

dependents, and such other factors as the court deems

appropriate.

18 U.S.C. s 3664(a). Rezaq claims that the district court

failed to consider his "financial resources" and his "earning

ability" in setting the amount of his restitution, and that this

was error.13

In United States v. Bapack, 129 F.3d 1320 (D.C. Cir. 1997),

we set forth our interpretation of section 3364's requirement

that the district court "shall consider" these factors. We

found that it was appropriate to treat orders of restitution as

we do fines; as to fines, "where the record demonstrates that

the judge considered [a] factor before imposing the fine, the

appellate court will not reverse the fine merely because no

__________

13 Congress recently amended section 3364 in a way that appears

to eliminate the requirement that the district court take these

factors into account; the Ex Post Facto Clause prohibits the

application of this amendment to Rezaq, however. See United

States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997).

express finding was made but will review the finding of ability

to pay necessarily implied by such consideration." See Ba-

pack, 129 F.3d at 1328 (quoting United States v. Mastropier-

ro, 931 F.3d 905, 906 (D.C. Cir. 1991)).

The record demonstrates that the district court considered

Rezaq's ability to pay in setting the amount of its restitution

order. As to Rezaq's present ability to pay, the district court

ordered at sentencing that "[t]he $850 in the registry of the

court will be paid to the victims," demonstrating that it knew

the (limited) extent of Rezaq's assets. As to Rezaq's future

earning ability, the district court could hardly have been

ignorant of the fact that Rezaq's anticipated sentence would

greatly restrict his earnings; imprisonment is rarely lucra-

tive. In a brief filed with the district court, the United States

argued that Rezaq might seek to write books or articles on

his crimes, and thus might later have the resources to pay a

large order of restitution. Rezaq's brief replied that this was

quite unlikely to occur. Given the district court's demonstrat-

ed familiarity with Rezaq's present ability to pay, an issue

addressed in the same set of briefs, it is fair to conclude that

the district court made its ruling in light of those briefs, and

hence considered the information they presented as to Re-

zaq's future earning ability. Cf. United States v. Cannizzaro,

871 F.2d 809, 811-12 (9th Cir. 1989). We therefore find that

there is adequate evidence that the district court considered

this factor.14

2. Adequacy of Documentation

The Probation Office provided the district court with copies

of Victim Impact Statements from seven victims of the hijack-

ing. The statements were very detailed, consuming a total of

forty-two pages; the impacts they listed included extensive

injuries and associated medical expenses, psychological

__________

14 Nor does the fact that Rezaq's future earnings are speculative

necessarily require that the district court award a minimal amount

of restitution. See United States v. Fountain, 768 F.2d 790, 802-

03 (7th Cir. 1985) (finding that the possibility that the defendant

would sell his story sufficed to indicate that he might someday be

able to satisfy a high amount of restitution).

harms, disruptions to the victims' lives, and loss of income

and property. The record also included numerous signed

statements from physicians, psychiatrists, and employers cor-

roborating the victims' accounts of their losses; one victim

also appended translations of newspaper articles and of an

appellate brief relating to her unsuccessful efforts to obtain

compensation in the Egyptian courts. The district court's

order of restitution included all of the financial impacts listed

in the victims' statements, including medical expenses, lost

wages, and lost property.

"Any amount to be paid in restitution must be obtained by

accurate computation and cannot exceed the amount of loss

actually caused." United States v. Forzese, 756 F.2d 217, 222

(1st Cir. 1985) (emphasis omitted). This rule protects both

the rights of the defendant and those of the victims, who will

often share the defendant's limited assets pro rata and who

will therefore be harmed if another victim receives an im-

properly high award. The district court had sufficient evi-

dence on which to base its award of restitution in this case.

The documentation before the court was extensive, especially

when considered in light of the fact that the crime was

committed over ten years earlier. Awards of restitution are

reviewed for abuse of discretion, United States v. Henoud, 81

F.3d 484, 487 (4th Cir. 1996); we are satisfied that no such

abuse occurred here.

G. Classified Materials

When classified materials may be relevant to criminal

proceedings, the Classified Information Procedures Act

("CIPA"), 18 U.S.C. app. III (1994), provides procedures

designed to protect the rights of the defendant while minimiz-

ing the associated harm to national security. In the course of

preparing for trial, the United States identified a number of

arguably discoverable classified materials, and obtained per-

mission from the district court to file an ex parte, in camera

motion for a protective order. After reviewing this motion

and the accompanying documents, the district court ordered

the United States to prepare an index listing the contents of

each document, whether it believed the document to be

subject to discovery, and why. This document, too, was

submitted ex parte and in camera; the district court subject-

ed this document to detailed review, and prepared a list of the

materials that it considered discoverable.

Under CIPA, the court may allow the United States to

disclose "a statement admitting relevant facts that the classi-

fied information would tend to prove," in lieu of disclosing the

information itself. 18 U.S.C. app. III s 4 (1994). The United

States sought, and obtained, permission to substitute admis-

sions for all of the documents that the district court had

identified as discoverable. The district court reviewed the

United States's proposed substitutions, and concluded that

they fairly stated the relevant elements of the classified

documents. The substitutions were then disclosed to Rezaq's

attorney.

Rezaq's request on appeal is very limited. He does not ask

us to review the district court's determination as to which

documents were discoverable in the first instance. Instead,

he asks only that we review the documents that the district

court found to be discoverable, and decide whether the sum-

maries that the court furnished to him were as helpful to his

defense as the original documents would have been. He is

particularly concerned that the summaries may have omitted

important information, or that the process of transforming

the documents into desiccated statements of material fact

might have hampered the "evidentiary richness and narrative

integrity" of the defense he was able to present. Old Chief,

117 S. Ct. at 651.

We found in Yunis that a defendant seeking classified

information is not entitled to receive it "on a mere showing of

theoretical relevance," but "is entitled only to information

that is at least 'helpful to the defense of the accused.' " 867

F.2d at 623 (quoting Roviaro v. United States, 353 U.S. 53,

60-61 (1957)). This principle applies to sub-elements of indi-

vidual documents; if some portion or aspect of a document is

classified, a defendant is entitled to receive it only if it may be

helpful to his defense. A court applying this rule should, of

course, err on the side of protecting the interests of the

defendant. In some cases, a court might legitimately con-

clude that it is necessary to place a fact in context in order to

ensure that the jury is able to give it its full weight. For

instance, it might be appropriate in some circumstances to

attribute a statement to its source, or to phrase it as a

quotation. As the Court said in Old Chief, "[a] syllogism is

not a story, and a naked proposition in a courtroom may be

no match for the robust evidence that would be used to prove

it." 117 S. Ct. at 654.15

The district court's substitution decisions turned on the

relevance of the facts contained in the discoverable docu-

ments, and are therefore reviewed, like other relevance deci-

sions under CIPA, for abuse of discretion. See United States

v. Yunis, 867 F.2d 617, 625 (D.C. Cir. 1989). We are obliged

to consider the district court's substitution decisions very

carefully, as Rezaq's counsel is unable to consult the original

documents, and so cannot present arguments on his client's

behalf. We have accordingly conducted a detailed in camera

comparison of the originals of the discoverable documents

with the summaries approved by the district court. We find

that the district court did a commendable job of discharging

its obligations under CIPA, and in particular that its orders

protected Rezaq's rights very effectively despite the fact that

Rezaq's attorney was unable to participate in the CIPA

proceedings. No information was omitted from the substitu-

tions that might have been helpful to Rezaq's defense, and

the discoverable documents had no unclassified features that

might have been disclosed to Rezaq.

__________

15 Of course, this contextual information may be precisely the sort

of information that the government most wishes to protect; fre-

quently, "the government's security interest ... lies not so much in

the contents of [a] conversation[ ], as in the time, place and nature

of the government's ability to intercept the conversation[ ] at all."

Yunis, 867 F.2d at 623.

After the court has identified the material that is helpful to the

defendant, there may be a third step to the court's analysis, in

which it balances the defendant's interest in disclosure against the

government's interest in secrecy. We have reserved the question of

whether such balancing is proper. See id. at 625.

III. Conclusion

We therefore conclude that all of Rezaq's arguments on

this appeal are without merit. We reject his sequential-

prosecution argument, finding that neither the Hague Con-

vention nor section 1472(n) contains any bar on sequential

prosecution more restrictive than that in the Double Jeopardy

Clause. As to his claim that the United States manufactured

jurisdiction over him, we conclude that section 1472(n)'s "af-

terward found in the United States" language did not pre-

clude jurisdiction even though the United States brought

Rezaq into its territory against his will for trial. Nor is

section 1472(n)'s "death results" provision subject to any

special jurisdictional requirements of its own.

Turning to Rezaq's claims that prejudicial evidence was

introduced at his trial, we find that Rezaq was not entitled to

have references to his victims' deaths stricken from the

indictment, to have the proceedings bifurcated, or to have the

United States stipulate to the deaths, and that the district

court did not overstep its discretion in permitting the United

States to introduce evidence relating to the autopsies of his

victims at trial. The fact that 57 passengers died during the

storming of the plane was also properly admitted, as it

provided a possible alternate cause of Rezaq's post-traumatic

stress disorder. We also conclude that the publicity sur-

rounding the crash of TWA Flight 800 was not so prejudicial

as to entitle Rezaq to a retrial, and that Rezaq waived his

right to have the jury polled individually. We also reject

Rezaq's arguments that the district court failed to consider

his ability to pay an award of restitution, that there was

inadequate support for the district court's restitution order,

and that the district court erred in substituting bare state-

ments of fact for discoverable classified documents.

So ordered.