The disregard for human life which would accompany the placing of a bomb aboard an airplane with the intent for that bomb to explode while the airplane is in flight and fully occupied with people, or otherwise sabotaging that plane, is at least as heinous a crime of international concern as hijacking a plane. The same rationale that supports jurisdiction under the Antihijacking Act also supports jurisdiction under the Aircraft Sabotage Act, regardless of where the alleged crimes occurred.
Moreover, contrary to Yousef's arguments, there is an additional basis for jurisdiction in this case. The indictment alleges that the bombing aboard the Philippines airliner was not an isolated incident, but part of a continuing course of conduct related to the alleged conspiracy to blow up United States airliners in East Asia. As discussed above, jurisdiction is properly alleged for those counts related to the conspiracy to blow up United States airliners, and therefore, jurisdiction is proper for acts committed in the continuous course of conduct of that conspiracy.
The exercise of extraterritorial jurisdiction in this case is reasonable, since the crimes charged have a "substantial, direct, and foreseeable effect" in the United States and clearly affect United States interests, as would be required by principles of international law. See United States v. Javino, 960 F.2d 1137, 1143 (2d Cir. 1992) (quoting Restatement (Third) §§ 403(1) & (2)). The alleged crimes clearly had intended effects on the United States and its citizens, although they were committed abroad. The fact that the planned consequences of the plot did not come to fruition, and thereby did not directly injure any United States citizen, does not wrest jurisdiction over the prosecution from this court. See United States v. Evans, 667 F. Supp. 974, 980 (S.D.N.Y. 1987) ("international law permits jurisdiction under . . . theories [of extraterritoriality] even if the act or conspiracy at issue is thwarted before ill effects are actually felt in the target state"); see also Restatement (Third) § 402, Comment d ("When the intent to commit the proscribed act is clear and demonstrated by some activity, and the effect to be produced by the activity is substantial and foreseeable, the fact that a plan or conspiracy was thwarted does not deprive the target state of jurisdiction to make its law applicable.").
The fact that the Philippines airliner bombing is a part of the continuous course of conduct charged against the defendants squelches Shah's argument that the prosecution of the defendants in the United States does not have a "territorial nexus or other direct nexus to the U.S.," rendering the prosecution "arbitrary and fundamentally unfair," and in violation of the Fifth and Sixth Amendments. Any constitutionally required nexus to the United States is clearly present.
Yousef, Murad, and Shah also challenge this court's jurisdiction under Counts Twelve, Seventeen, and Eighteen, on the grounds that the statutes upon which these counts rely do not contain specific grants of extraterritorial jurisdiction. Count Twelve charges a conspiracy under Section 371 to damage, destroy and bomb United States aircraft in the special aircraft jurisdiction of the United States. Counts Seventeen and Eighteen charge the defendants with using and carrying a bomb during and in relation to the conspiracy charged in Count Twelve and the conspiracy charged in Count Fifteen, respectively.
Extraterritorial jurisdiction over a conspiracy charge depends on whether extraterritorial jurisdiction exists as to the underlying substantive crime. See United States v. Bowman, 260 U.S. 94, 96, 67 L. Ed. 149, 43 S. Ct. 39 (1922); United States v. Cotten, 471 F.2d 744 (9th Cir.), cert. denied, 411 U.S. 936, 36 L. Ed. 2d 396, 93 S. Ct. 1913 (1973). Since this court has jurisdiction over the substantive Section 32 charges, jurisdiction over the conspiracy charged in Count Twelve is also proper.
The charge contained in Count Fifteen, a violation of Section 2332, which proscribes conspiracy to kill United States citizens abroad, clearly applies extraterritorially. Because the charges regarding the use and carrying of bombs charged in Counts Seventeen and Eighteen arise directly from the conspiracy offenses charged in Counts Twelve and Fifteen, this Court has jurisdiction over Counts Seventeen and Eighteen as well.
I find that exercising extraterritorial jurisdiction over Defendants Yousef, Murad, and Shah for the crimes charged in the indictment is consistent with the statutory requirements, principles of domestic and international law, and the United States Constitution. Defendants' motions to dismiss the indictment and its various counts for lack of jurisdiction are therefore denied.
DATED: NEW YORK, NEW YORK
May 29, 1996
KEVIN THOMAS DUFFY, U.S.D.J.