PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4249
DAVID A. PASSARO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 07-4339
DAVID A. PASSARO,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Terrence W. Boyle, District Judge.
(5:04-cr-00211-BO)
Argued: March 27, 2009
Decided: August 10, 2009
Before WILKINSON, MOTZ, and GREGORY,
Circuit Judges.
2 UNITED STATES v. PASSARO
Affirmed in part and vacated and remanded in part by pub-
lished opinion. Judge Motz wrote the opinion, in which Judge
Wilkinson and Judge Gregory joined.
COUNSEL
ARGUED: Joseph Bart Gilbert, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
David A. Passaro. Banumathi Rangarajan, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina,
for the United States. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, James E. Todd, Jr., Research and
Writing Specialist, Eric J. Brignac, Research and Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for David A. Passaro.
George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina,
for the United States.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case arises from the conviction in a United States fed-
eral court of an American citizen for the brutal assault on an
Afghan national in Afghanistan. A jury in the Eastern District
of North Carolina found David A. Passaro, a Central Intelli-
gence Agency civilian contractor, guilty of assault on Abdul
Wali. The assault occurred in 2003 at Asadabad Firebase, a
United States Army outpost in Afghanistan.
Passaro asserts that American courts lack subject matter
jurisdiction over assaults in Asadabad. He further maintains
that his prosecution offends separation-of-powers principles
UNITED STATES v. PASSARO 3
and arises from statutes unconstitutionally vague as applied to
him. Finally, Passaro challenges certain evidentiary, jury
instruction, and sentencing rulings of the district court.
This case presents novel questions concerning the reach of
federal criminal law to acts that an American civilian commits
abroad while in service to this Country. After careful consid-
eration, we reject all of Passaro’s challenges to his conviction.
We conclude, however, as Passaro and the Government both
argue, that the district court erred in sentencing him. Accord-
ingly, we affirm Passaro’s conviction but vacate his sentence
and remand for resentencing.
I.
After the September 11, 2001, terrorist attacks, the United
States conducted a military operation in Afghanistan in an
effort to topple the Taliban regime. Sometime in late 2001, as
part of this effort, American and coalition military troops
forcibly obtained control of the Asadabad Firebase in north-
east Afghanistan.
A thick, ten-foot-high mud wall surrounds Asadabad,
which is an old fortress that covers approximately 25 acres.
By May 2003, when Passaro arrived at Asadabad, the fortress
contained approximately a dozen useable buildings, which
coalition forces employed as offices, living quarters, and
detention facilities. In addition, the United States Army had
installed electricity and was in the process of providing fresh
well water in Asadabad.
Coalition forces conducted military and intelligence opera-
tions from Asadabad and used the base to train Afghan militia
personnel. At any one time, the United States stationed about
200 military personnel at the firebase, along with a number of
paramilitary civilian contractors.
Passaro, a former Army special forces medic, arrived at
Asadabad in May 2003 as part of this contingent of paramili-
4 UNITED STATES v. PASSARO
tary contractors. At about the same time, military command-
ers had become concerned with rocket attacks on Asadabad,
which occurred on a regular basis. The United States began
to suspect that a local Afghan named Abdul Wali orchestrated
the rocket attacks, and the military formulated a plan to cap-
ture Wali for questioning.
Before American forces could execute this plan, however,
Wali voluntarily surrendered himself for questioning on June
18, 2003. After some initial interviews, American command-
ers at Asadabad decided to detain Wali. They imprisoned him
in a detention cell, shackling his legs, binding his wrists
together, and placing a hood over his head. The military
placed him under 24-hour, two-person, armed guard.
Sometime on the evening of the next day, June 19, the CIA
commander at Asadabad authorized Passaro to interrogate
Wali. It is undisputed that for the next two days, Passaro "in-
terrogated" Wali. This "interrogation" involved Passaro’s bru-
tal attacks on Wali, which included repeatedly throwing Wali
to the ground, striking him open handed, hitting him on the
arms and legs with a heavy, Maglite-type flashlight measuring
over a foot long, and, while wearing combat boots, kicking
Wali in the groin with enough force to lift him off the ground.
Passaro "interrogated" Wali in this manner throughout the
next day, June 20. And, although Wali’s condition greatly
deteriorated, Passaro continued the "interrogation" through
the night of June 20. By June 21, Wali had lapsed into delir-
ium, to the point where he twice asked his guards to shoot
him and even lunged at a guard as if to take his gun. Later that
day, while still in United States custody at Asadabad, Wali
collapsed and died.
The next month, Passaro returned to North Carolina. A year
later, a federal grand jury indicted him on two counts of
assault with a dangerous weapon with intent to do bodily
harm in violation of 18 U.S.C. § 113(a)(3) (2006) and two
UNITED STATES v. PASSARO 5
counts of assault resulting in serious bodily injury in violation
of 18 U.S.C. § 113(a)(6) (2006).1
At trial, the translator present at the "interrogations" and the
personnel charged with guarding Wali during them described
in detail Passaro’s brutal "interrogation" methods. Numerous
witnesses, including Passaro’s CIA supervisors, testified that
no CIA official had encouraged or authorized Passaro’s "in-
terrogation" methods.
After an eight-day trial, the jury convicted Passaro of one
count of felony assault resulting in serious bodily injury and
three counts of the lesser-included offense of misdemeanor
simple assault. The district court sentenced Passaro to a 100-
month term of imprisonment, applying a number of sentenc-
ing enhancements and an upward departure to reach that
result. Passaro noted a timely appeal challenging both the
convictions and the sentence; the Government filed a cross-
appeal as to the sentence.
II.
Most fundamentally, Passaro challenges our subject matter
jurisdiction over the crimes alleged against him. The Govern-
ment predicated federal criminal jurisdiction in this case on
the special maritime and territorial jurisdiction statute. See 18
U.S.C. § 7 (2006). This statute extends federal criminal juris-
diction to crimes, like assault, that states traditionally regu-
late, when the crimes occur in a federal enclave—for
example, United States military bases, federal buildings, and
national parks, see id. § 7(3), the high seas and waters within
this Country’s admiralty and maritime jurisdiction, id. § 7(1),
and certain aircraft and spacecraft, id. § 7(5)–(6). See United
1
Because Wali’s family removed his body from Asadabad after his
death and refused to allow an autopsy, the Government explains that it
lacked evidence as to the cause of Wali’s death or a basis for any other
criminal charges.
6 UNITED STATES v. PASSARO
States v. Anderson, 391 F.3d 1083, 1086 (9th Cir. 2004);
United States v. Erdos, 474 F.2d 157, 159–60 (4th Cir. 1973).
In other words, the statute makes the site of the offense an
element of the crime. See United States v. Brisk, 171 F.3d
514, 520 n.4 (7th Cir. 1999).
In 2001, Congress added an additional subsection to the
special maritime and territorial jurisdiction statute. See Unit-
ing and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT) Act of 2001, Pub. L. No. 107-56, § 804, 115 Stat.
272, 377 (codified at 18 U.S.C. § 7(9) (2006)). This provision
explicitly extends special maritime and territorial jurisdiction
to
the premises of United States diplomatic, consular,
military or other United States Government missions
or entities in foreign States, including the buildings,
parts of buildings, and land appurtenant or ancillary
thereto or used for purposes of those missions or
entities, irrespective of ownership . . . .
18 U.S.C. § 7(9)(A) (2006). The threshold question before us
is whether this provision extends a federal court’s jurisdiction
to crimes committed at the Asadabad Firebase in June 2003.
A.
When interpreting any statute, we must first and foremost
strive to implement congressional intent by examining the
plain language of the statute. Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 450 (2002). "The plainness or ambiguity of
statutory language is determined by reference to the language
itself, the specific context in which that language is used, and
the broader context of the statute as a whole." Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997).
In determining the jurisdictional reach of § 7(9), the district
court properly focused, at least initially, on the two critical
UNITED STATES v. PASSARO 7
statutory terms: "premises" and "mission." In doing so, how-
ever, the court treated "mission" as synonymous with "opera-
tion," and relied on one dictionary definition of "mission" to
define the term as "a team of military specialists sent to a for-
eign country to assist in the training of its armed forces." See
Webster’s Third New International Dictionary 1445 (1993)
(emphasis added). The court then found that § 7(9) provided
jurisdiction over crimes committed at Asadabad in 2003
because "the United States has been conducting a military
mission in Afghanistan since late 2001" and the "activities . . .
at the Asadabad firebase are a part of that larger mission"
(emphasis added). On appeal, the Government adopts this
construction, arguing that Asadabad falls within § 7(9)’s juris-
diction "[b]ecause the base was a premises for United States
military operations." Brief of Appellee at 42 (emphasis
added).
We believe this construction inadequate for several reasons.
First, it ignores the fact that "mission" can also refer to "a per-
manent embassy or legation in a foreign country." Webster’s,
supra, at 1445 (emphasis added). This definition best harmo-
nizes with the dictionary definition of the other critical statu-
tory term, "premises," i.e., "a specified piece or tract of land
with the structures on it." Id. at 1789. By construing § 7(9) to
reach only fixed locations, rather than a mobile group of peo-
ple conducting an operation, we accord importance to both
"mission" and "premises," without slighting either or creating
any inconsistency. See Weinberger v. Hynson, Westcott &
Dunning, Inc., 412 U.S. 609, 633 (1973) (applying the "well-
settled" rule of statutory construction that requires courts to
give independent and internally consistent importance to each
term in a statute).
Congress’s placement of subsection nine within § 7 lends
substantial support to this interpretation. For the other subsec-
tions in § 7 encompass only physical locations, e.g., federal
property, the high seas and territorial waters of the United
States, and particular types of large vehicles that themselves
8 UNITED STATES v. PASSARO
constitute a location. A construction of § 7(9) that adds a
mobile group of people to this list of locations would seem
very odd indeed.
Further, that Congress included "military . . . missions" in
a particular list of missions—i.e., "diplomatic, consular, mili-
tary or other United States Government missions"—indicates
that Congress intended "premises of a military mission" to
denote the same sort of permanent location. See United States
v. Williams, 128 S. Ct. 1830, 1839 (2008) ("[A] word is given
more precise content by the neighboring words with which it
is associated."). Every other "mission" encompassed within
this statutory list uses the word as a foreign relations term of
art signifying a particular type of fixed place. See A.T. Massey
Coal Co. v. Holland, 472 F.3d 148, 160 (4th Cir. 2006) (dis-
cussing that context can indicate that Congress has used a
term of art); see also United States v. County of Arlington,
Va., 702 F.2d 485, 487 (4th Cir. 1983) (noting that the Vienna
Convention on Diplomatic Relations, April 18, 1961, 23
U.S.T. 3227, defines "premises of the mission" as "the build-
ings and lands ‘used for the purposes of the mission’").
Finally, although certainly not dispositive of the issue
before us, § 7(9)’s legislative history also supports this con-
struction. See Babbitt v. Sweet Home Chapter of Cmtys. for a
Great Or., 515 U.S. 687, 704–08 (1995) (relying on legisla-
tive history to reinforce the Court’s statutory construction).
Congress enacted § 7(9) at least in part to "explicitly extend"
§ 7’s extraterritorial reach to "U.S. diplomatic and consular
premises" overseas — that is, to fixed locations and not to
mobile groups of people. See Administration’s Draft Anti-
Terrorism Act of 2001: Hearing Before the H. Comm. On the
Judiciary, 107th Cong. 44 (2001). Similarly, the House Judi-
ciary Committee report interpreted this legislation as reaching
"crimes committed at United States facilities abroad." H.R.
Rep. No. 107-236, at 73 (2001) (emphasis added).
For these reasons, we believe that § 7(9)’s language, con-
text, purpose, and legislative history all indicate that "the
UNITED STATES v. PASSARO 9
premises of . . . military . . . missions" refers to fixed physical
locations, i.e., land and buildings, on which the United States
has established a "military mission."
B.
We turn then to the question of whether, by June 2003, the
"premises" of Asadabad constituted a United States "military
mission" so as to render it within the criminal jurisdiction of
a federal district court.
Clearly, long-established and permanent U.S. military
bases abroad, e.g., Naval Air Facility Atsugi in Japan and
Ramstein Air Base in Germany, constitute "premises" of a
"military mission" under § 7(9). These bases are the straight-
forward "military" analogue to embassies, the "diplomatic"
and "consular" missions plainly within § 7(9)’s scope. On the
other hand, we doubt that § 7(9) reaches so broadly as to
encompass any area that U.S. soldiers occupy, no matter how
temporary or mobile their presence. For example, we agree
with Passaro that § 7(9) would not reach any piece of Afghan
soil on which a soldier "pitches his pup tent." Brief of Appel-
lant at 29.
In cases that fall between these two extremes, courts must
consider a number of common-sense, objective factors to
determine whether a particular location qualifies as the
"premises" of a United States "military mission" for purposes
of § 7(9). Relevant factors include the size of a given military
mission’s premises, the length of United States control over
those premises, the substantiality of its improvements, actual
use of the premises, the occupation of the premises by a sig-
nificant number of United States personnel, and the host
nation’s consent (whether formal or informal) to the presence
of the United States. This list surely does not exhaust every
factor relevant to determining § 7(9)’s reach; nor is any factor
a prerequisite for jurisdiction. But these factors do bring to
10 UNITED STATES v. PASSARO
bear relevant, objective considerations in resolving this ques-
tion.
Applying these factors to Asadabad leads us to conclude
that it possesses all the qualities of a permanent U.S. military
base abroad, albeit on a smaller scale, and thus falls squarely
within the ambit of § 7(9). First, with respect to size, Asada-
bad is a substantial facility, in both the area it covers and in
the fortifications it includes. Although trial witnesses differed
in estimates of its size, it appears that Asadabad covered
approximately 350 yards on each side, or over 25 acres. In
addition, a ten-foot-high and two-foot-thick heavy mud wall
encircled the entire facility, making Asadabad just as discrete
and set off from its surroundings as an embassy compound.
Second, as to the duration of United States control,
although the United States initially took Asadabad by force,
by the time Passaro arrived in May 2003, the United States
had controlled Asadabad for approximately 18 months. This
clearly provides objective evidence that the United States had
taken permanent control of the base as of that date.
Third, by May 2003 the United States had substantially
improved and fortified Asadabad. When the United States ini-
tially seized the compound, it consisted of little more than a
few internal walls and a couple of rooms within the outer wall
of the compound. By May 2003, however, coalition forces
had improved the facility such that it contained approximately
a dozen buildings, providing offices, living quarters, guard
towers, and detention facilities. The Army had also installed
electric generators and above-ground plumbing. Finally,
building on Asadabad’s already-formidable outer wall, the
military had constructed extensive, multi-layered security for-
tifications. Such improvements indicate the permanence and
substantiality of the U.S. presence at Asadabad.
Fourth, with respect to use, the United States, albeit on a
smaller scale, has used Asadabad in much the same way as it
UNITED STATES v. PASSARO 11
has used larger military bases in Afghanistan (e.g., Bagram
Air Base) and around the world. In all of these places, as in
Asadabad, the United States has established significant facili-
ties to conduct military operations, gather intelligence, and
train local forces. Moreover, in Asadabad, as in these other
outposts, the United States has stationed a significant military
force (over 200 military and paramilitary personnel) on a
long-term basis. With such forces come all of the necessary
logistical support—food, water, weaponry and ammunition,
and sleeping facilities. Thus, the similarity between Asadabad
and these larger facilities provides further objective evidence
that Asadabad had become a permanent United States installa-
tion by June 2003.
Finally, we note that by June 2003, the United States and
Afghanistan had entered into significant bilateral agreements.
See, e.g., Agreement For the Establishment and Operation of
United States Radio Transmitting Facilities in Afghanistan,
U.S.–Afg., Oct. 3, 2002, 2002 U.S.T. LEXIS 65. One agree-
ment outlined the rights and obligations of United States
forces in Afghanistan, effectively granting the Afghan gov-
ernment’s imprimatur to the American presence in Afghani-
stan. See Agreement Regarding the Status of United States
Military and Civilian Personnel of the U.S. Department of
Defense Present in Afghanistan, U.S.–Afg., May 28, 2003,
2002 U.S.T. LEXIS 100 [hereinafter Personnel Agreement].2
2
Relying on the treaty exclusion in § 7(9) ("Nothing in this paragraph
shall be deemed to supersede any treaty or international agreement with
which this paragraph conflicts."), Passaro contends that the absence of a
specific jurisdictional grant in this Personnel Agreement precludes Ameri-
can jurisdiction over American civilians in Afghanistan. But the Agree-
ment, which covers both military and civilian personnel, specifically does
grant the United States "criminal jurisdiction over United States person-
nel" in Afghanistan. See Personnel Agreement, 2002 U.S.T. LEXIS 100,
at *4. Similarly, contrary to Passaro’s suggestion, the Vienna Convention
does not preclude the application of § 7(9) to Passaro. The Vienna Con-
vention regulates and extends certain privileges to the premises of diplo-
matic missions; it simply does not address the kind of military mission at
issue in this case.
12 UNITED STATES v. PASSARO
Although we do not view such bilateral agreements as
required in every case, we do view a host nation’s consent to
United States presence as relevant. Of course, such consent
can be implicit or informal. But, in all events, bilateral agree-
ments constitute a significant objective indication of consent.
Given the fluid and chaotic context of the war in Afghanistan
in 2003, these agreements provide relevant objective evidence
of both the permanence of the United States presence at Asa-
dabad and United States control of the premises.
For all of these reasons, we believe that § 7(9) extends fed-
eral criminal jurisdiction over assaults committed by U.S.
nationals at Asadabad in June 2003. By that time, the United
States had retained control for nearly a year and a half over
this significant, discrete tract of land, maintaining a meaning-
ful permanent presence to conduct significant military opera-
tions, which the Afghan government sanctioned. Accordingly,
§ 7(9) extended federal criminal jurisdiction to these premises.3
III.
Having found that, by June 2003, § 7(9) provided a basis
for federal jurisdiction over crimes committed at the Asada-
bad Firebase, we next address Passaro’s contention that we
should nonetheless refuse to permit § 7(9) to form the juris-
dictional basis for the specific federal assault crimes charged
3
For these same reasons, we cannot conclude, as Passaro contends, that
§ 7(9) contains such "grievous ambiguity or uncertainty" as to invoke the
rule of lenity. Muscarello v. United States, 524 U.S. 125, 138–39 (1998)
(internal quotation marks omitted). We also reject Passaro’s argument that
§ 7(9) does not apply to him because of the canon against extraterritorial-
ity. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248–59 (1991),
superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166,
§ 109, 105 Stat. 1071, 1077. The statute expressly applies to "premises . . .
in foreign States," 18 U.S.C. § 7(9) (emphasis added); thus, Congress
intended § 7(9) to reach extraterritorially. See Arabian Am. Oil Co., 499
U.S. at 248 (noting that the canon against extraterritoriality applies only
when congressional intent is "unexpressed").
UNITED STATES v. PASSARO 13
against him. Passaro offers two theories in support of this
contention; we address each in turn.
A.
Passaro argues that the district court unconstitutionally
overstepped its bounds by adjudicating the charges brought
against him. He claims that allowing Article III federal courts
to try his case intrudes on the Executive Branch’s virtually
boundless discretion in foreign affairs and war powers. This
argument ignores a critical fact: the Executive itself elected to
bring this prosecution.
A court does not intrude on any Executive Branch preroga-
tive by holding that Congress empowered the Executive to
prosecute criminal activity and provided a forum for adjudica-
tion of that prosecution. Passaro can cite no case holding, or
even suggesting, that the exercise of prosecutorial discretion
by the Executive somehow intrudes on the functions of the
Executive. Instead, the cases on which Passaro relies involve
private citizens suing the government in tort or in some other
civil action. See, e.g., Tiffany v. United States, 931 F.2d 271
(4th Cir. 1991). Every case even marginally on point
expressly rejects arguments like Passaro’s. See, e.g., United
States v. Poindexter, 725 F. Supp. 13, 23 (D.D.C. 1989)
("Nothing in this case would require the Court to adjudicate
foreign policy issues . . . . [A]ll that is involved is the question
whether one particular individual . . . has violated the [law].").
In fact, the Supreme Court itself has sanctioned a far
greater intrusion on Executive prerogatives during a criminal
prosecution. In United States v. Nixon, 418 U.S. 683, 692–93
(1974), the President contended that an "intra-branch" dispute
rendered non-justiciable his refusal to release assertedly privi-
leged documents. The Supreme Court soundly rejected this
argument, holding the controversy within Article III power
because "the matter is one arising in the regular course of a
14 UNITED STATES v. PASSARO
federal criminal prosecution," a kind of controversy that
"courts traditionally resolve." Id. at 696–97.
If the Executive action in Nixon did not offend separation-
of-powers principles, the Executive action here—the Govern-
ment’s prosecution of Passaro—surely does not. On the con-
trary, refusing to hear this case would significantly intrude on
both the Executive and Legislative Branches by rejecting
Congress’s definition of criminal activity and the Executive’s
lawful decision to prosecute. See United States v. Funmaker,
10 F.3d 1327, 1333 (7th Cir. 1993) (holding that once a court
decides that a congressional enactment applies, "the judiciary
must entertain all prosecutions by the executive branch
undertaken pursuant to that law") (emphasis added). Just as
important, accepting Passaro’s argument would undermine
the basis for any war crimes prosecution in an Article III court
and would similarly prevent the judiciary from reviewing mil-
itary prosecutions on a writ of habeas corpus. See, e.g., Burns
v. Wilson, 346 U.S. 137, 142 (1953). Accordingly, we reject
Passaro’s separation-of-powers argument.4
B.
Alternatively, Passaro contends that § 113 is void for
vagueness as applied to him. The Supreme Court has clearly
articulated the rigorous standard that criminal defendants
must meet to establish such a claim. "A conviction fails to
comport with due process" and so is void for vagueness only
"if the statute under which it is obtained [1] fails to provide
a person of ordinary intelligence fair notice of what is prohib-
ited, or [2] is so standardless that it authorizes or encourages
seriously discriminatory enforcement." United States v. Wil-
4
Passaro also contends that the constitutional avoidance canon prevents
the Government from prosecuting him, asserting that we should construe
§ 7(9) to avoid separation-of-powers concerns. See INS v. St. Cyr, 533
U.S. 289, 299–300 (2001). We reject this contention for the same reasons
that we reject Passaro’s separation-of-powers argument.
UNITED STATES v. PASSARO 15
liams, 128 S. Ct. 1830, 1845 (2008). Try as he might, Passaro
has utterly failed to demonstrate that § 113 is vague in either
respect.
1.
With respect to notice, Passaro repeatedly insists that
§ 113, which criminalizes assault, provided him no notice that
his conduct constituted assault and so violated the law. Pas-
saro does not contend that the term "assault" in and of itself
is vague. Such an argument would be doomed because courts
have uniformly recognized that various federal statutes crimi-
nalizing "assault" incorporate the long-established common
law definition of that term. See, e.g., United States v. Che-
staro, 197 F.3d 600, 604–05 (2d Cir. 1999) (rejecting conten-
tion that federal assault statute is void for vagueness); United
States v. Dupree, 544 F.2d 1050, 1051–52 (9th Cir. 1976)
(same).
What Passaro instead contends is that § 113 provided him
no notice that a "battlefield interrogation" of a terrorist sus-
pect conducted by the CIA constituted assault. That argument
fails for several reasons. First, it rests on Passaro’s mischarac-
terization of the facts underlying the charges brought against
him. No true "battlefield interrogation" took place here;
rather, Passaro administered a beating in a detention cell. Nor
was this brutal assault "conducted by the CIA"—rather, Pas-
saro was a civilian contractor with instructions to interrogate,
not to beat. In any event, § 113 contains no exceptions for a
victim’s status as an alleged terrorist or a perpetrator’s status
as a federal agent.
Thus, although there may be cases in which § 113’s appli-
cation is uncertain, the facts of Passaro’s case clearly fall
within the scope of that statute. We therefore have no hesita-
tion in concluding that § 113’s prohibition of assault placed
Passaro on notice that his repeated kicking and striking of
Wali constituted criminal acts. See Parker v. Levy, 417 U.S.
16 UNITED STATES v. PASSARO
733, 756 (1974) (noting that in challenges, like this one, that
lie outside of the First Amendment context, a defendant "to
whose conduct a statute clearly applies may not successfully
challenge it for vagueness").
We further reject Passaro’s contention that § 113 as applied
to this "interrogation" must be void for vagueness because it
would criminalize acts otherwise permissible in the heat of bat-
tle.5 To accept this argument would equate a violent and unau-
thorized "interrogation" of a bound and guarded man with
permissible battlefield conduct. To do so would ignore the
high standards to which this country holds its military person-
nel.
Passaro’s notice argument, rather than establishing vague-
ness, merely constitutes an attempt to justify his crimes. Pas-
saro raised this and similar justification defenses before the
jury. The jury rejected them, and Passaro does not contend
that the jury’s verdict fails for lack of evidence. We cannot
and will not permit him to transform a justification defense
into a constitutional vagueness challenge.
2.
Passaro’s second vagueness argument—that the Govern-
ment’s assertedly selective application of § 113 to him ren-
5
Passaro attempts to bolster this argument with a 2003 Office of Legal
Counsel (OLC) memorandum, since retracted, which he maintains proves
that the Department of Justice believed § 113 did not apply to battlefield
interrogations. See Memorandum for William J. Haynes II, Gen. Counsel
of the Dep’t of Def. (March 14, 2003). This memorandum recognized, as
we do, that some foreign military locations would not fall within the "spe-
cial maritime and territorial jurisdiction of the United States." Id. at 21.
But because the memorandum clearly states that § 7 reaches "U.S. military
bases in foreign states," id. at 19–20, and because Asadabad is such a mili-
tary base, the memorandum undermines, rather than supports, Passaro’s
position. Indeed, the memorandum addresses at length limitations that
§ 113 places on interrogations within the special maritime and territorial
jurisdiction of the United States. Id. at 24–30.
UNITED STATES v. PASSARO 17
ders the statute unconstitutionally void for vagueness—also
fails. Stripped of its constitutional garb, this argument merely
constitutes Passaro’s objection to the Government’s decision
to prosecute him for violations of § 113.
This objection is predictable. Indeed, criminal defendants
commonly complain that other persons are more worthy of
criminal prosecution. But our constitutional system leaves it
to the discretion of the Executive Branch to decide who will
face prosecution. See United States v. Armstrong, 517 U.S.
456, 464 (1996). Unless a defendant provides "clear evi-
dence" to overcome the presumption that a government prose-
cutor has acted lawfully and without discrimination—a
"particularly demanding" standard—he cannot demonstrate a
constitutional violation for selective prosecution. Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999).
Passaro fails to cite any evidence that in prosecuting him
for violations of § 113, the Government unlawfully or dis-
criminatorily exercised its prosecutorial discretion. Cf. Yick
Wo v. Hopkins, 118 U.S. 356, 373–74 (1886). Accordingly, he
provides no basis for judicial interference with that discretion,
especially in light of the difficulty of such decisions in this
sensitive diplomatic and military context.6
IV.
Having assured ourselves that the district court properly
6
Passaro’s contention that § 7(9), either alone or taken together with
§ 113, renders his prosecution void for vagueness also fails. Simply
because this case constitutes the first prosecution under § 7(9) of the acts
outlawed by § 113 does not render § 7(9) unconstitutionally vague. See
United States v. Buculei, 262 F.3d 322, 333 (4th Cir. 2001) ("[I]t is irrele-
vant that [the defendant’s] prosecution under this statute is ‘a novel con-
struction,’ or that it is the first time the Government has proceeded under
this theory."). As we have explained at length, § 7(9)’s "premises of . . .
military . . . missions" unambiguously encompasses permanent U.S. mili-
tary outposts abroad, such as Asadabad.
18 UNITED STATES v. PASSARO
exercised jurisdiction over the Government’s prosecution of
Passaro, we turn to Passaro’s remaining challenges to his con-
viction.
A.
Passaro argues that the Government and the district court
used the Classified Information Procedures Act (CIPA), Pub.
L. No. 96-456, 94 Stat. 2025 (1980) (codified at 18 U.S.C.
App. 3 §§ 1–16 (2006)), to deny him a fair trial. Specifically,
Passaro argues that the district court permitted Government
"misuse" of CIPA that (1) prevented him from "obtaining or
presenting" evidence necessary to his defense and (2) allowed
the Government to present "distorted" information regarding
the circumstances surrounding his assault of Wali that "pre-
vent[ed] proper jury instructions." Brief of Appellant at 61,
63. We review a court’s CIPA rulings for an abuse of discre-
tion, granting the court wide discretion in handling classified
evidence. United States v. Abu Ali, 528 F.3d 210, 247, 253
(4th Cir. 2008).
1.
We begin with Passaro’s objections to the limits the district
court imposed on disclosure of classified information. CIPA
provides a procedural framework by which a court balances
the defendant’s interest in a fair trial and the Government’s
interest in protecting national security information. United
States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005). CIPA
permits a court to review classified evidence in camera to
determine its relevance and admissibility, and then order dis-
closure (with or without redaction) of the evidence or issue
protective orders against disclosure. 18 U.S.C. App. 3 §§ 3,
5–6 (2006); United States v. Smith, 780 F.2d 1102, 1105–06
(4th Cir. 1985) (en banc). CIPA does not, however, alter the
substantive rules of evidence, including the test for relevance:
thus, it also permits the district court to exclude irrelevant,
UNITED STATES v. PASSARO 19
cumulative, or corroborative classified evidence. Id. at 1106,
1110; see also Fed. R. Evid. 403.
Here the district court conducted the required CIPA hearing
as to each of Passaro’s requests for classified information dis-
closure and issued a detailed order on the admissibility of
each. See 18 U.S.C. App. 3 § 6. The court admitted some of
the evidence in full, admitted some in redacted form, and
excluded some as irrelevant, cumulative, or corroborative.
With one exception, Passaro does not object to the redac-
tion or exclusion of any specific piece of evidence.7 Rather,
he makes unsupported assertions, which amount to little more
than insinuation of error. Having reviewed the record our-
selves, we agree with the Government that the district court’s
rulings allowed Passaro to present a full defense to the jury
regarding his conduct and the circumstances surrounding that
conduct. Thus, we find no abuse of discretion in the district
court’s limitations on the introduction of classified evidence.
2.
Nor can we find fault with the district court’s orders with-
holding from Passaro discovery of certain classified informa-
tion.
Passaro argues at length that the district court permitted the
Government to use CIPA as a "sword" to prevent him from
7
The lone exception is the 2003 OLC Memorandum on which Passaro
relies throughout. See supra note 5. But the record lacks any evidence that
Passaro read or knew of, let alone relied on, this memorandum prior to his
assault on Wali. Even if he had, such reliance would simply amount to a
mistake of law, which provides no defense to the assault charges. See
Cheek v. United States, 498 U.S. 192, 199 (1991). For similar reasons,
CIA memoranda that have recently come to light do not aid Passaro’s
defense. See, e.g., Mark Mazzetti & Scott Shane, Debate Over Interroga-
tion Methods Sharply Divided the Bush White House, N.Y. Times, May
4, 2009, at A13.
20 UNITED STATES v. PASSARO
discovering the authorization necessary to his public authority
defense. But to establish such an affirmative defense, Passaro
must prove that someone with actual authority sanctioned an
otherwise unlawful act. United States v. Fulcher, 250 F.3d
244, 254 (4th Cir. 2001). Passaro offered no showing that
such evidence exists. We recognize that such a showing may
well be difficult given national security concerns, but at the
very least Passaro could have proffered a specific conversa-
tion that he had with a superior, or a particular document on
which he relied, that purported to authorize his brutal "interro-
gation" of Wali. Passaro made no such proffer.
On the other hand, the Government presented substantial
evidence that Passaro never received authorization for his
interrogation methods. Passaro’s two direct superiors at Asa-
dabad unequivocally testified at trial (and thus were subject to
cross-examination by Passaro’s counsel) that they never
authorized Passaro’s actions. Another civilian contractor, who
had undergone training with Passaro, similarly testified that
the CIA did not permit interrogators to strike detainees.
Finally, the Government offered a summary of CIA interroga-
tion policy. The district court, after examining ex parte the
full top-secret policy, admitted a redacted summary into evi-
dence pursuant to 18 U.S.C. App. 3 § 4. This document sup-
ports the testimony of the Government witnesses and offers
no support to an affirmative public authority defense for Pas-
saro’s acts.
Nevertheless, Passaro contends that the district court
abused its discretion when it quashed his subpoenas to CIA
officials who he asserts could have provided support for his
public authority defense. To obtain such compulsory process
of a witness, the Sixth Amendment requires a defendant to
demonstrate that the witness will testify "‘in his favor.’"
United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir. 2004)
(quoting U.S. Const. amend. VI). Passaro has failed to make
any showing that the testimony of additional CIA officials
would have aided his defense and, in fact, the testimony of his
UNITED STATES v. PASSARO 21
two superiors and the written CIA policy indicate that any
additional subpoenaed witness would not have testified "in his
favor." Moreover, Passaro admits that he did not comply with
the regulatory procedures governing requests for information
from a CIA employee. 32 C.F.R. §§ 1905.3–.4 (2008); see
also United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951). We see no reason to permit Passaro to depart from
these procedures.
For all these reasons, we reject Passaro’s CIPA arguments.
B.
In addition to his CIPA arguments, Passaro also maintains
that the district court committed reversible error in rejecting
his proposed jury instruction regarding justifiable use of rea-
sonable force. A district court commits reversible error in
refusing to provide a proffered jury instruction only when the
instruction "(1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some
point in the trial so important, that failure to give the
requested instruction seriously impaired the defendant’s abil-
ity to conduct his defense." United States v. Lewis, 53 F.3d
29, 32 (4th Cir. 1995) (internal quotation marks omitted). We
review the district court’s decision to give or refuse to give a
jury instruction for abuse of discretion. United States v. Moye,
454 F.3d 390, 397–98 (4th Cir. 2006). Moreover, "we do not
view a single instruction in isolation; rather we consider
whether taken as a whole and in the context of the entire
charge, the instructions accurately and fairly state the control-
ling law." United States v. Rahman, 83 F.3d 89, 92 (4th Cir.
1996).
Analogizing to a police arrest of a dangerous person, Pas-
saro contends that the court should have instructed the jurors
that they could excuse his conduct if they found that he, a
"federal officer," had used a level of force reasonably neces-
sary to effectuate and maintain control of a criminal. Specifi-
22 UNITED STATES v. PASSARO
cally, Passaro’s proposed instruction required the jury to
consider, inter alia:
[T]he circumstances which led the United States
forces to take [Wali] into custody [and] the informa-
tion Mr. Passaro possessed about [Wali], to include
information linking [Wali] to terrorist groups and to
recent and frequent ambushes . . . .
We reject the notion that Passaro, a CIA contractor charged
with questioning a man who was already detained and shack-
led, could avail himself of an excessive force defense reserved
for law enforcement officers attempting to subdue or restrain
a threatening person. See, e.g., Waterman v. Batton, 393 F.3d
471, 476–77 (4th Cir. 2005). Moreover, Passaro’s proffered
instruction is not legally correct because it improperly directs
the jury to consider irrelevant factors demonstrating Wali’s
alleged past history of general dangerousness. This is not the
standard. Rather, a fact finder assesses the reasonableness of
an officer’s use of force to effectuate or maintain control of
a detainee on the basis of the detainee’s conduct in the
moments surrounding the officer’s use of force. Cf. Graham
v. Connor, 490 U.S. 386, 396 (1989).
To whatever extent Passaro’s proposed instruction is rele-
vant, the district court’s charge to the jury—taken as a whole
—sufficiently accounted for it. For instance, the court
instructed the jury that Passaro lacked the requisite criminal
intent if he "struck Abdul Wali in order to achieve another
objective and not with the express intent to cause bodily
harm."
Thus, the district court did not abuse its discretion in refus-
ing to give Passaro’s proposed jury instruction.
V.
Finally, we turn to the sentencing issues. The district court
calculated Passaro’s offense level as 23, after finding a base
UNITED STATES v. PASSARO 23
offense level of 14, see U.S. Sentencing Guidelines Manual
§ 2A2.2(a) (2008), and applying enhancements for threatened
use of a dangerous weapon (three levels), id.
§ 2A2.2(b)(2)(C), infliction of serious bodily injury (four
levels), id. § 2A2.2(b)(3)(D), and involvement of a vulnerable
victim (two levels), id. § 3A1.1(b)(1). With Passaro’s criminal
history category of I, this established an advisory guidelines
range of 46–57 months. From this range, the district court
departed upward six levels for "extreme conduct," see id.
§ 5K2.8, resulting in an offense level of 29 and an adjusted
advisory Guidelines range of 87-108 months. The district
court then sentenced Passaro to a 100-month term of impris-
onment.
Passaro and the Government, albeit for different reasons,
agree that the district court erred in applying the three-level
enhancement for threatened use of a "dangerous weapon." Id.
§ 2A2.2(b)(2)(C). Although not clear from the record, it
appears that the district court based this enhancement on Pas-
saro’s use of a heavy flashlight or his shod foot to beat Wali.
Passaro argues that the district court erred because the jury
found that Passaro had actually kicked Wali with his foot,
rather than threatening to kick him. Thus, Passaro contends,
the evidence in no event supports a finding that Passaro
merely threatened to kick Wali. According to Passaro, the dis-
trict court therefore should have either applied the four-level
enhancement for actual use of a dangerous weapon, id.
§ 2A2.2(b)(2)(B), or no enhancement at all. The Government
agrees that the district court erred, but only because the court
should have applied the four-level enhancement for actual use
of a dangerous weapon.
The Guideline-sanctioned definition of dangerous weapon
encompasses an extremely broad range of instrumentalities.
Id. §§ 2A2.2 cmt. n.1, 1B1.1 cmt. n.1(D). This definition
allows a trier of fact to consider as a dangerous weapon a
knife, gun, shoe, dog, rake, or any other item adapted to caus-
24 UNITED STATES v. PASSARO
ing death or serious bodily injury. See United States v. Dayea,
32 F.3d 1377, 1379 & n.2 (9th Cir. 1994) (collecting cases).
Although at sentencing the parties and court engaged in much
discussion of the boot and the flashlight, the court ultimately
applied the dangerous weapon enhancement with no explana-
tion. We agree with Passaro that the district court must explic-
itly find by a preponderance of the evidence what, if any,
instrumentality constituted the basis for the dangerous
weapon enhancement. If the district court finds that a specific
instrumentality constituted a dangerous weapon and that Pas-
saro actually used that weapon, then the Guidelines direct that
the court apply the four-level enhancement for actual use of
a dangerous weapon. Thus, we must remand for further find-
ings on this issue.
In addition, both parties agree that the district court erred
in imposing a six-level upward departure. In imposing the
departure, the court cited § 5K2.8 of the Guidelines, which
provides for an upward departure when the defendant’s con-
duct "was unusually heinous, cruel, brutal, or degrading."
U.S. Sentencing Guidelines Manual § 5K2.8 (2008). But, as
the Government acknowledges, the district court offered no
rationale for concluding that § 5K2.8 justified the chosen
upward departure.
It is axiomatic that a district court commits reversible pro-
cedural error when it fails to explain a departure or variance,
whether upward or downward. United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009). Moreover, without such an
explanation we cannot determine whether a departure was
substantively reasonable. Id. Thus, we must vacate the sen-
tence and remand for resentencing, at which the district court
can explain fully the departure, if any, that it chooses to
impose.
Passaro asserts additional sentencing errors, alleging that
the district court erred in imposing a vulnerable victim
enhancement, U.S. Sentencing Guidelines Manual
UNITED STATES v. PASSARO 25
§ 3A1.1(b)(1) (2008), and a four-level increase for serious
bodily injury, id. § 2A2.2(b)(3)(D). The two errors discussed
above, however, already require a remand for resentencing, so
we need not address these additional sentencing issues. In all
events, nothing herein should be read to preclude the district
court from reconsidering its earlier findings.
VI.
This case has required us to determine whether a federal
court has jurisdiction over the trial of an American citizen for
committing brutal assaults abroad. Congress has determined
that individuals committing such crimes on the premises of
United States military missions abroad are subject to prosecu-
tion in United States federal courts. The Executive has deter-
mined to bring the first such case against David Passaro. We
are satisfied that Passaro received a fair trial from a conscien-
tious jury, in a court that had jurisdiction to try him. Thus,
after careful consideration of the challenges Passaro presents,
we affirm Passaro’s conviction in all respects. In light of the
conceded sentencing errors, however, we vacate Passaro’s
sentence and remand for resentencing.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART