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
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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.