Appeals from the June 2 and 3, 2008, judgments conviction of the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, District Judge), sentencing the defendants, after a jury trial, for violating the Hostage Taking Act, 18 U.S.C. § 1203, and the Alien Transportation Act. 8 U.S.C. § 1324(a)(1)(A)(ii).
Convictions for violating the Hostage Taking Act reversed, convictions for violating the Alien Transportation Act affirmed, and cases remanded for resentencing.
The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.
Before: NEWMAN, CALABRESI, and KATZMANN, Circuit Judges.
In 1984 Congress enacted the Hostage Taking Act, Pub. L. No. 98-473, Title II, § 2002(a), Oct. 12, 1984, 98 Stat. 2186 (1984) ("the Hostage Act" or "the Act"), to implement the International Convention Against the Taking of Hostages, Dec. 18, 1979, T.I.A.S. No. 11,081 ("Hostage Convention"). See United States v. Wang Kun Lue, 134 F.3d 79, 81 (2d Cir. 1998). The Convention binds the signatories "to adopt 'effective measures for the prevention, prosecution and punishment of all acts of taking hostages as manifestations of international terrorism.'" Id. (quoting Hostage Convention). The principal issue on this appeal is whether the Hostage Act has been validly applied to defendants who perpetrated an extortion scheme that used brief confinement of a taxi passenger to obtain a somewhat above average taxi fare. Jorge Garcia-Reynoso and Domingo Rodriguez appeal from the judgments of the District Court for the Eastern District of New York (Sandra J. Feuerstein, District Judge), entered June 2 and 3, 2008, respectively, sentencing them primarily to 240 months' imprisonment after a jury found them guilty of violating the Hostage Act and transporting an illegal alien for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I), (v)(II).
We conclude that the Hostage Act does not apply to the Appellants' offense conduct on the facts of this case. We therefore reverse Reynoso's and Rodriguez's convictions on the Hostage Act, affirm their convictions on the alien transportation counts, and remand their cases for resentencing.
On January 21, 2005, Azucena Gonzalez-Mendez ("Mendez"), a Mexican citizen, was smuggled across the border from Mexico into Arizona by a "coyote"*fn1 who had been hired by her husband, Julio Gabriel Lopez-Perez ("Perez"). Mendez had unsuccessfully attempted to enter the United States on two separate occasions earlier that same week. After being driven to Las Vegas on her third attempt, she flew to MacArthur Airport on Long Island, where she expected to meet her husband who was planning to come from his home in Asbury Park, New Jersey. She arrived at the airport in dirty clothes, muddy shoes, and with no luggage. Mendez does not speak English. When Mendez arrived at the airport, she could not find Perez. While waiting for him, defendant Rodriguez approached her and told her, in Spanish, that she should go inside because it was cold. Inside, Rodriguez told Mendez that it was unsafe for her to wait outside for Perez because the police parked in front of the terminal were from immigration. Rodriguez told her that if the police noticed her, she would be arrested.
Mendez tried to explain to Rodriguez that she was waiting for her husband to pick her up. Rodriguez reiterated his warning about immigration officers. Mendez was frightened, as she had been caught twice before by immigration officials and returned to Mexico. Rodriguez then asked Mendez if she had the phone number for the person who was supposed to meet her, and told her to give him the number so that he could call the person for her. Mendez wanted to call Perez herself, but Rodriguez insisted that he would do it. Mendez gave Rodriguez the number, and he purported to make a call from his cell phone. He claimed that nobody answered. Rodriguez then offered to give Mendez a ride, reiterating again that if she waited in the airport for too long, she would be arrested. Mendez believed Rodriguez's warning, and she agreed to go with him.
Rodriguez escorted Mendez to a van, being driven as a gypsy cab by defendant Reynoso. Rodriguez told her to get in, which she did. Rodriguez then said that he was going back to the terminal to see if the person Mendez was waiting for had arrived. After sitting in the van for about fifteen minutes, Mendez saw Perez in front of the terminal. Mendez told Reynoso that she saw her husband and that she wanted to get out of the van to meet him. Reynoso told her "no, no, no, because immigration is following us." Mendez was frightened by Reynoso's warning, so she remained in the van but asked Reynoso to call Rodriguez so that Rodriguez could tell Perez where she was. Reynoso agreed, but when he supposedly dialed Rodriguez's number, there was no answer. Even though Mendez could see her husband, she did not try to leave the van because she was afraid that she would get caught by immigration officials. Reynoso told Mendez that he would take her home, and she agreed. As she explained, "This was the first time I was in the U.S. [Reynoso] scared me, telling me that immigration was following us. So I had no other alternative but to say yes." Reynoso and Mendez left the airport without Rodriguez.
Reynoso and Mendez drove for a while and at some point stopped at a convenience store where Rodriguez joined them. Mendez did not try to leave the van. She explained that she was too afraid to get out, had no money, did not speak English, and did not know where she was.
Previously, Rodriguez had called the number that Mendez had given him and spoke with Alejandra Luna, whose family lived with Perez in Asbury Park. Rodriguez offered to take Mendez home, but Luna said that Perez was on his way to pick her up at the airport. Rodriguez insisted that he would bring Mendez home, but Luna repeatedly told him "no." Luna then called Perez and reached him while he was being driven to MacArthur Airport. She gave Perez the number that had shown up on her caller ID when Rodriguez called her. The cell phone number where Luna reached Perez belonged to Edgar Carreon-Mancilla ("Mancilla"), whom Perez had hired to drive him to MacArthur Airport and then back to New Jersey. While driving to the airport, Perez tried to call the number Luna had given him, and after four attempts, Rodriguez finally answered the phone. Perez told Rodriguez who he was and asked about Mendez. Rodriguez claimed he was a Customs Service employee, and told Perez that he had seen Mendez and had directed her to a car because she could not wait around the airport for a long time.
Perez called Rodriguez again, explaining that he was desperate and nervous, but Rodriguez claimed that he did not know the person who Mendez left with. When Perez arrived at the airport, he looked for his wife but could not find her and left the airport after looking for about twenty minutes. Ten minutes from the airport, he called Rodriguez again. This time, Rodriguez told Perez that Mendez had left with a Mexican man who was driving her to New Brunswick, New Jersey.
Rodriguez then called Perez back, and arranged to meet him on the Long Island Expressway. Perez and Mancilla waited on the shoulder of the expressway for Rodriguez. Rodriguez arrived, shook hands with Perez, and said, "I want to take care of this." [GA 53] Rodriguez told Perez that he would try to get in contact with the person who was driving Mendez. Rodriguez then advised Perez that he should "come to an arrangement" with the person driving Mendez to pay for her trip, and another man accompanying Rodriguez told Perez he was "sure [the driver] will take her to where you live." Rodriguez told Perez to call him after 7:00 p.m. to get the number for the man who was driving his wife.
After Rodriguez left, Perez repeatedly called Rodriguez, and when he finally got through, Rodriguez told Perez that he was with Mendez. Rodriguez briefly spoke to Perez and then gave the phone to Mendez. Mendez started crying when she heard her husband's voice, and, in her testimony, said that she was "terrified." Perez told Mendez that he would come get her, and Rodriguez then took the phone and told Perez to meet him at a gas station in the Monmouth Service Area on the Garden State Parkway in New Jersey.
Rodriguez, Reynoso, and Mendez arrived at the service area before Perez and Mancilla. Reynoso parked in an empty employee parking lot about 100 yards away from the gas station. Perez and Mancilla arrived at the gas station shortly after 9 p.m., and when they did not see appellants, they called them on a cell phone. Rodriguez directed Mancilla to drive towards the parking lot, and when he and Perez got close to the van, Rodriguez directed them to turn off the car lights. Mancilla parked his car in front of the van. Perez approached the van, in which he could see his wife and the two defendants.
When Mendez saw her husband, she got up to leave the van, but Rodriguez, in an angry and annoyed voice, shook his finger at her and told her "no, no, no, ma'am, wait. You cannot get out until the driver speaks with your husband." Mendez complied because she was frightened and did not leave the van.
Perez attempted to open the rear door to the van, but Rodriguez locked the door. Perez then demanded that Rodriguez let Mendez out, but Rodriguez refused and told Perez that he "had to come to an arrangement with the driver." Reynoso then got out of the van and told Perez, "[Y]ou have to pay me $475."*fn2 Perez told Reynoso that he was not going to pay anything. From inside the van, Rodriguez responded that if Perez did not pay, he would call the police. Perez again told appellants that he would not pay and that he would call the police himself. Rodriguez responded, "Okay, call. We'll see who will be the loser."
Perez went back to the car and told Mancilla what happened. Mancilla immediately called 911 and explained the situation. The 911 operator received the call at 9:17 p.m. Ten minutes later, three officers arrived on the scene from the New Jersey State Police. As soon as they arrived, they spoke briefly with Perez and Mancilla and then approached the van. One officer opened the passenger door where Rodriguez was sitting, saw Mendez in ...