United States v. Straker ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 06-102 (JDB)
ZION CLARKE,
RICARDO DEFOUR,
KEVON DEMERIEUX,
ANDERSON STRAKER,
WAYNE PIERRE,
CHRISTOPHER SEALEY, and
KEVIN NIXON,
Defendants.
MEMORANDUM OPINION
Defendants Zion Clarke, Ricardo DeFour, Kevon Demerieux, Anderson Straker, Wayne
Pierre, Christopher Sealey, and Kevin Nixon were extradited from the Republic of Trinidad and
Tobago ("Trinidad") to the United States in July 2007 and August 2008 to face charges of
conspiracy to commit hostage taking resulting in death in violation of 18 U.S.C. § 1203("Hostage Taking Act"), and aiding and abetting hostage taking resulting in death. The charges
arise from the abduction and death of a U.S. citizen, Balram Maharaj, in Trinidad in April 2005.
In the most basic terms, defendants face trial in the United States, rather than Trinidad, because
the statute makes it a federal criminal offense for aliens abroad to take U.S. citizens hostage.
Presently before the Court are two motions to dismiss and a related motion to stay the
trial of this matter. The first motion, filed by Straker, contends that the hostage taking statute is
unconstitutional because it impermissibly discriminates on the basis of alienage in violation of
his constitutional rights to equal protection and due process. The second motion, filed by
Demerieux, contends that the Court lacks jurisdiction over this case because Maharaj was not
qualified for U.S. citizenship when he was naturalized, rendering his citizenship void ab initio.
In a related motion, Clarke has moved to stay the trial of this matter -- presently scheduled to
commence on May 26, 2009 -- pending resolution of defendants' civil administrative and judicial
petitions seeking revocation of Maharaj's citizenship. See 8 U.S.C. § 1451(a). All defendants
have joined in the pending motions to dismiss and to stay. For the reasons stated below, the
Court will deny defendants' motions.1 The Court will also grant the government's separate
motion in limine to preclude defendants from introducing evidence on the subject of whether
Maharaj should have been granted U.S. citizenship.
I. Straker's Motion to Dismiss
Straker contends that 18 U.S.C. § 1203 facially discriminates on the basis of alienage,
pointing out that aliens are singled out for prosecution. Classification based on alienage is
evident from the text of the statute, and the courts of appeals have recognized that the statute
treats aliens differently than U.S. citizens. See 18 U.S.C. § 1203(b)(1) and (2);2 United States v.
1
For ease of reference, the Court will refer to defendants' briefs by the following
abbreviated titles: Straker's Mot. to Dismiss (ECF #190); Demerieux's Mot. to Dismiss (ECF
#390); Straker's Reply in support of Demerieux's Mot. (ECF #451); Defs.' Joint Reply and Joint
Mot. for Stay (ECF #452); and Demerieux's Reply (ECF #453). The government's responses to
defendants' motions will simply be cited as "Gov't Opp'n" (ECF #250 and ECF #439).
2
Section 1203 provides:
(a) Except as provided in subsection (b) of this section, whoever, whether inside or
outside the United States, seizes or detains and threatens to kill, to injure, or to continue
to detain another person in order to compel a third person or a governmental organization
to do or abstain from doing any act as an explicit or implicit condition for the release of
the person detained, or attempts or conspires to do so, shall be punished by imprisonment
for any term of years or for life and, if the death of any person results, shall be punished
by death or life imprisonment.
(b)(1) It is not an offense under this section if the conduct required for the offense
(continued...)
2
Lue, 134 F.3d 79, 85-86 (2d Cir. 1998); United States v. Santos-Riviera, 183 F.3d 367, 372 (5th
Cir. 1999); see also Gov't Opp'n at 3 ("jurisdiction is based upon the facts that the person seized
was a national of the United States and the defendant is an alien").
The only issue is whether classification based on alienage in this context survives
constitutional scrutiny. Five courts of appeals have considered this issue and held that the
classification in § 1203 does not violate a defendant's Fifth Amendment right to due process or
equal protection. See United States v. Ferreira, 275 F.3d 1020, 1025-27 (11th Cir. 2001); United
States v. Montenegro, 231 F.3d 389, 394-95 (7th Cir. 2000); Santos-Riviera, 183 F.3d at 372-74;
Lue, 134 F.3d at 85-87; United States v. Lopez-Flores, 63 F.3d 1468, 1471-74 (9th Cir. 1995).
The deferential rational basis standard of review applies to a federal classification based on
alienage, and hence the statute will be upheld if it is rationally related to a legitimate
governmental interest. See, e.g., Montenegro, 231 F.3d at 395 (citing Mathews v. Diaz, 426 U.S.
67, 79-87 (1976)).3 The courts of appeals have uniformly held that § 1203 is rationally related to
2
(...continued)
occurred outside the United States unless --
(A) the offender or the person seized or detained is a national of the United States;
(B) the offender is found in the United States; or
(C) the governmental organization sought to be compelled is the Government of
the United States.
(2) It is not an offense under this section if the conduct required for the offense occurred
inside the United States, each alleged offender and each person seized or detained are
nationals of the United States, and each alleged offender is found in the United States,
unless the governmental organization sought to be compelled is the Government of the
United States.
18 U.S.C. § 1203.
3
In contrast, alienage has been recognized as a suspect classification subject to strict
(continued...)
3
the legitimate government interest in addressing foreign policy concerns, in particular, Congress's
authority to implement the terms of treaties -- here, the International Convention Against the
Taking of Hostages -- and to address the international ramifications of hostage taking. Id. at 395;
Ferreira, 275 F.3d at 1027 ("Congress passed the Hostage Taking Act [18 U.S.C. § 1203] to
implement the International Convention Against the Taking of Hostages" and "because it
believed that kidnapping involving foreign nationals has serious international ramifications");
Santos-Riviera, 183 F.3d at 373 ("The legislative history of the Hostage Taking Act demonstrates
that the Act was passed to address legitimate foreign policy concerns" and, in particular, "to meet
its obligations as a signatory state to the Hostage Taking Convention").
Straker attempts to achieve a different result here, based on his contention that § 1203
was designed to combat acts of terrorism, in contrast to "purely local kidnappings that could be
prosecuted in the nation where the crime occurred." Mot. to Dismiss at 9. Nothing on the face of
§ 1203 indicates such a limitation, and the courts of appeals have recognized that § 1203 is not
limited to terrorist acts. See, e.g., Santos- Riviera, 183 F.3d at 373 ("'[The Hostage Taking
Convention] provided states with the discretion to assert jurisdiction when their nationals were
taken hostage. Congress' voluntary decision to adopt this permissive basis of jurisdiction
underscores its intent to exercise broad jurisdiction over any offender who threatens American
nationals.'") (quoting United States v. Carrion-Caliz, 944 F.2d 220, 224 (5th Cir. 1991));
3
(...continued)
scrutiny where a state or local government has sought to employ the classification to
disadvantage foreign nationals. See Lue, 134 F.3d at 86. As explained by the Second Circuit,
"[t]he situation is different when it is the federal government that is drawing the distinction
between citizens of the United States and those of foreign countries" because of the federal
government's recognized "national interests when dealing with aliens," which differ markedly
from the interests of individual states. Id. (citing Diaz, 426 U.S. at 79-81).
4
Montenegro, 231 F.3d at 395 ("The classification drawn by the Hostage Taking Act covers all
aliens involved in hostage-taking incidents."); see also United States v. Yunis, 924 F.2d 1086,
1091 (D.C. Cir. 1991) (explaining that "the statute [§ 1203] . . . reflects an unmistakable
congressional intent, consistent with treaty obligations of the United States, to authorize the
prosecution of those who take Americans hostage abroad no matter where the offense occurs or
where the offender is found" in response to defendant's objections based on international law).
Like the five courts of appeals that have addressed the same constitutional challenge, this Court
concludes that the alienage classification in § 1203 is rationally related to Congress's legitimate
foreign policy interests. Therefore, Straker's motion to dismiss will be denied.
II. Demerieux's Motion to Dismiss
Demerieux moves to dismiss the indictment on the ground that the Court lacks subject
matter jurisdiction. He contends that the Court's jurisdiction over this case is premised on the
victim's status as a "national of the United States" under 18 U.S.C. § 1203, and that Maharaj fails
to qualify as a "national of the United States" because he was ineligible for citizenship at the time
of his application for naturalization and obtained citizenship through fraud and
misrepresentation.4 See Demerieux's Mot. to Dismiss at 2-17. In other words, Demerieux
believes the government got it wrong when it granted Maharaj's application for naturalization,
and he has the evidence to prove it. To that end, he and his co-defendants have recently
petitioned Jeffrey Taylor, the United States Attorney for the District of Columbia ("U.S.
Attorney" or "Taylor"), to institute a civil judicial proceeding to revoke Maharaj's citizenship;
4
Demerieux contends that the evidence would show that Maharaj deserted the U.S.
military, entered the United States illegally, obtained a "green card" through misrepresentation
and concealment of material facts, failed to disclose criminal conduct, and was otherwise not of
good moral character. See Demerieux's Mot. to Dismiss at 2-17 & Exhibits A-L.
5
they have also filed a petition for writ of mandamus seeking an order compelling the U.S.
Attorney to act on the request before the trial date and to initiate citizenship revocation
proceedings under 8 U.S.C. § 1451(a). See Clarke v. Holder, Civil Action No. 09-0753 (D.D.C.
filed Apr. 23, 2009) (hereinafter, "Clarke Mandamus Petition").
In response, the government contends that the Court possesses jurisdiction over this
criminal case because Maharaj's formal citizenship status at the time of the hostage taking was
undisputedly that of a U.S. citizen and, furthermore, at no time has that citizenship ever been
revoked. See Gov't Opp'n at 5-6, 11-18.5 The government also contends that, in light of the
exclusive process for revocation of naturalization set up by 8 U.S.C. § 1451 and 8 C.F.R. §§
340.1 and 340.2, this Court is without authority to make a determination as to the legitimacy of
Maharaj's citizenship. Id. at 13-19. Having fully considered the parties' briefs, exhibits, and the
arguments presented at the motions hearing held on May 1, 2009, the Court has determined that
there is no dispute that Maharaj possessed an authentic certificate of naturalization and U.S.
passport at the time of the hostage taking, that his U.S. citizenship has never been revoked, and
that this Court lacks the authority to declare his citizenship void. Therefore, the Court will deny
Demerieux's motion to dismiss, including his request for an evidentiary hearing on whether
5
The government recognizes that, because the offense occurred outside of the United
States, it must rely on subsection (A), (B), or (C) of § 1203(b)(1) to support the Court's assertion
of jurisdiction over defendants. See United States v. Yunis, 924 F. 2d 1086, 1090 (D.C. Cir.
1991) (holding that § 1203(b)(1) offers the "bases of jurisdiction where 'the offense occurred
outside the United States'"). Here, the government relies on subsection (A), authorizing
jurisdiction where the victim is a national of the United States.
The government notes that the indictment also charges defendants with conspiracy to
kidnap Dinesh Maharaj, the child of Balram Maharaj, who also is a U.S. citizen. See Gov't
Opp'n at 3 n.2. However, the government seeks a conviction against defendants based on the
kidnapping of Balram Maharaj and, thus, as the government acknowledges, the fact that the child
was also an object of the conspiracy is not material to the resolution of Demerieux's motion. Id.
6
Maharaj was qualified for U.S. citizenship.
To frame the array of issues, the Court begins with the statute governing revocation of
naturalization. The Immigration and Nationality Act of 1952 provides that the United States
attorneys are charged with instituting judicial proceedings to revoke the citizenship of a
naturalized U.S. citizen as follows:
It shall be the duty of the United States attorneys for the respective districts, upon
affidavit showing good cause therefor, to institute proceedings in any district court
of the United States in the judicial district in which the naturalized citizen may
reside at the time of bringing suit, for the purpose of revoking and setting aside
the order admitting such person to citizenship and canceling the certificate of
naturalization on the ground that such order and certificate of naturalization were
illegally procured or were procured by concealment of a material fact or by willful
misrepresentation, and such revocation and setting aside of the order admitting
such person to citizenship and such canceling of certificate of naturalization shall
be effective as of the original date of the order and certificate . . . . If the
naturalized citizen does not reside in any judicial district in the United States at
the time of bringing such suit, the proceedings may be instituted in the United
States District Court for the District of Columbia or in the United States district
court in the judicial district in which such person last had his residence.
8 U.S.C. § 1451(a). Revocation of naturalization may also occur through administrative
proceedings instituted by the U.S. Citizenship and Immigration Service. See 8 C.F.R. §§ 340.1and 340.2. Demerieux has submitted the affidavits of Reita Pendry and George Steel to both the
U.S. Attorney for the District of Columbia and the U.S. Citizenship and Immigration Service,
including a proffer of evidence of "illegal procure[ment]," "concealment of . . . material fact[s],"
and "willful misrepresentation," and based on that profffer, contends that Maharaj's citizenship
was void ab initio -- that is, void as of "the original date of the order and certificate" as provided
under § 1451(a). See Clarke Mandamus Pet. Attach. at 2-9.
Before turning to Demerieux's arguments in support of his motion, the Court first
addresses Clarke's contention that the Court should not consider the government's opposition to
7
the motion to dismiss because the U.S. Attorney has a conflict of interest. See Defs.' Joint Reply
at 2. Clarke points out that the U.S. Attorney now has before it two matters pertaining to
Maharaj's citizenship -- this criminal prosecution and defendants' petition dated March 23, 2009,
requesting the institution of proceedings to revoke Maharaj's citizenship under § 1451(a). Id. In
Clarke's view, because the U.S. Attorney will "be able to go forward with an improper
prosecution" if it fails to pursue revocation proceedings under § 1451(a), the government has a
conflict of interest and should not be permitted to oppose Demerieux's motion to dismiss the
criminal case. Id. The government responds that there is no conflict of interest in this criminal
action or in the related civil case, citing Community for Creative Non-Violence v. Pierce, 786
F.2d 1199, 1202 (D.C. Cir. 1986) ("CCNV"). See Clarke v. Holder, Civil Action No. 09-0753,
Gov't Mot. to Dismiss at 1 n.1 (D.D.C. filed Apr. 28, 2009).
In CCNV, the court of appeals rejected a plaintiff's attempt to disqualify the U.S.
Attorney from acting as counsel in a civil case where the plaintiff had also requested that the U.S.
Attorney initiate an investigation into whether one of the U.S. Attorney's witnesses had
committed perjury in the course of defending the civil suit. 786 F.2d at 1200-01. CCNV is of
limited value, however, because it rejected the claim based on the plaintiff's lack of standing to
raise the issue, rather than a determination on the merits of the alleged conflict. But the case
nonetheless provides guidance strongly indicating that the U.S. Attorney has no conflict of
interest in acting as counsel in the criminal and civil matters before this Court. The D.C. Circuit
suggested that, to find a conflict, the aggrieved party must show a "reason to think that the United
States Attorney's determination [concerning the prosecution] . . . is flawed or tainted." 786 F.2d
at 1202. Here, defendants have not made such a showing. They only speculate that Taylor's
inaction on their administrative petition requesting initiation of denaturalization proceedings is
8
spurred by the allegedly improper motive of keeping the prosecution of this case moving
forward. But the inaction at issue is entirely consistent with -- indeed, foretold by -- the
government's longstanding policy of not pursuing denaturalization proceedings when the subject
is deceased. See Decl. of Eli M. Rosenbaum (Gov't Opp'n, Attach. No. 3). Whether such
inaction is permissible under § 1451(a) remains to be determined (see infra at 14-17), but it
cannot be seriously disputed that the current inaction stems from that policy, in contrast to any
alleged conflict of interest. Moreover, if defendants are concerned about Taylor's conflict of
interest, they may submit the same administrative petition to the U.S. Attorney for the Southern
District of New York, who is not involved in this prosecution. See 8 U.S.C. § 1451(a) ("If the
naturalized citizen does not reside in any judicial district in the United States . . . , the
proceedings may be instituted in . . . the United States district court in the judicial district in
which such person last had his residence."); see also Letter from Reita Pendry to CIS, dated Mar.
23, 2009 (Maharaj "last resided in Westchester County, New York") (Clarke Mandamus Pet.
Attach. A at 6).6
With that threshold issue resolved, the Court turns to the main point of contention
between the parties -- whether, as Demerieux contends, the Court has the authority to make a
determination about the legitimacy of Maharaj's U.S. citizenship through an evidentiary hearing
resolving jurisdictional facts, or whether, as the government contends, absent revocation of
6
Indeed, assuming arguendo that a conflict of interest exists, the logical result would be
for the U.S. Attorney to recuse himself from resolving defendants' § 1451 administrative petition
and to transfer action on that petition to the U.S. Attorney for the Southern District of New York.
Indeed, the Court is hard-pressed to understand why defendants sought action from Taylor,
instead of the appropriate U.S. Attorney in New York, if they were genuinely concerned about
Taylor's alleged conflict of interest. It also bears noting that defendants have submitted a parallel
administrative petition seeking Maharaj's denaturalization to the Citizenship and Immigration
Service in New York. See Clarke Mandamus Pet. Attach. A at 6-7.
9
citizenship pursuant to 8 U.S.C. § 1451, the matter of citizenship is conclusively established by
Maharaj's certificate of naturalization and U.S. passport. To begin with, the record plainly
establishes that, at the time he was taken hostage, Maharaj possessed an authentic certificate of
naturalization and authentic U.S. passport,7 each of which are deemed by statute to be proof of
United States citizenship. See 8 U.S.C. § 1449 (certificate of naturalization); 22 U.S.C. § 2705(providing that a passport, during its period of validity, "shall have the same force and effect as
proof of United States citizenship as certificates of naturalization . . ."). Indeed, defendants do
not dispute that the Attorney General granted Maharaj's application for naturalization in or
around 1995. See Clarke Mandamus Pet. at 4 ("[Maharaj] obtained a green card in 1986 and
became a citizen in 1994").8 Instead, they contend that the Attorney General's order of
naturalization should be considered void because Maharaj did not meet the statutory
requirements for citizenship and procured the citizenship through fraud. Id.; Demerieux's Mot. to
Dismiss at 3-17.
Defendants cast their current motion as seeking resolution of a "jurisdictional fact" --
whether Maharaj was a U.S. citizen for the purpose of this prosecution under 18 U.S.C. § 1203 --
rather than a revocation of citizenship, which must proceed under 8 U.S.C. § 1451. But their
request for an opportunity to prove that Maharaj's citizenship is void is, in principle, no different
7
Maharaj's passport and certificate of naturalization bear the name "Aladdin Barlow
John." See Gov't Opp'n, Attach. No. 1 and No. 2. Defendants have acknowledged that Balram
Maharaj was formerly known as Aladdin Barlow John, prior to a name change in 2000. See
Demerieux's Mot. to Dismiss at 3 n.3; see also Clarke Mandamus Pet. at 2 (asking the Court to
issue a writ of mandamus requiring the U.S. Attorney to institute proceedings . . . for the purpose
of revoking and setting aside the order admitting Balram Maharaj's (formerly known as Alladin
Barlow John) citizenship . . .").
8
The mandamus petition refers to the date of naturalization as 1994. However, the
certificate of naturalization bears the date January 18, 1995. See Gov't Opp'n, Attach. No. 2.
This difference in the official date of naturalization is of no consequence to the pending motions.
10
than a motion to revoke Maharaj's citizenship. This is apparent from their reliance on § 1451(a)
to support their request for a "jursidictional" finding that his citizenship is void ab initio. See
Demerieux's Mot. to Dismiss at 2 (requesting evidentiary hearing to show that Maharaj "illegally
procured naturalization and a certificate of citizenship" citing 8 U.S.C. § 1451(a)); id. at 12("Maharaj's citizenship is void under 8 U.S.C. § 1451(a)"); id. at 16 ("he procured his
naturalization illegally, as defined by 8 U.S.C. § 1451(a)"). But the case law and regulations do
not permit such an end-run around the process set forth in § 1451 for declaring the citizenship of
a naturalized citizen void.
As the Ninth Circuit has recognized, § 1451 "safeguard[s] citizenship from abrogation
except by a 'clearly defined' procedure -- 'clearly defined,' that is, by statute." Gorbach v. Reno,
219 F.3d 1087, 1097 (9th Cir. 2000) (en banc). The process for setting aside citizenship under
§ 1451 is "'a self-contained, exclusive procedure' that 'covers the whole ground.'" Id. (quoting
United States v. Zucca, 351 U.S. 91, 95 (1956)) (emphasis added). Based on the exclusivity of
§ 1451(a), the Ninth Circuit proceeded to hold that the Attorney General does not have the
authority to promulgate regulations authorizing revocation of naturalization through the
administrative process at 8 C.F.R. part 340. Id. at 1097-99. The Ninth Circuit's rationale is
particularly pertinent here, as defendants have, in effect, asked the Court to engage in a process
that circumvents the § 1451 process for determining the validity of citizenship. "Congress has
provided one way to revoke the citizenship of a naturalized American citizen: that is for a United
States Attorney to file a petition in a United States District Court. There is no statutory warrant
for a second way . . . ." Id. at 1099 (emphasis added).
Defendants' contention that citizenship can be deemed void without going through the
§ 1451 process is also contradicted by the Citizenship and Immigration Service regulation stating
11
the self-evident principle that a naturalized citizen "shall be considered to be a citizen of the
United States until a decision to reopen proceedings and deny naturalization becomes final." 8
C.F.R. § 340.1(g)(4).9 Defendants' bald assertion that Maharaj's citizenship is void, "by
operation of law," without a final order issued pursuant to § 1451 (see Demerieux's Reply at 3),
entirely fails to reckon with a key aspect of the § 1451 regime established by Congress for
declaring citizenship void -- that citizenship remains valid until a final order revoking and
canceling the certificate of naturalization is issued under § 1451.
Defendants baldly assert that obtaining an order from this Court declaring Maharaj's
citizenship void ab initio would not affect the rights of any other persons, presumably because
Maharaj is deceased and there would be no formal order of revocation of citizenship. But the
Supreme Court has stated the contrary -- "[e]ven if [one's] citizenship is not cancelled, his
reputation is tarnished and his standing in the community damaged" -- and hence, has required
strict compliance with § 1451 in actions brought by the U.S. attorneys. See Zucca, 351 U.S. at
99-100.
To summarize, the Court holds that § 1451 sets forth the exclusive process for declaring
the citizenship of a naturalized person void and one's citizenship remains valid until an order
setting aside citizenship has been issued in compliance with § 1451. Because no order revoking
Balram Maharaj's citizenship has been issued, his certificate of naturalization and U.S. passport
conclusively establish that he was, until his death, a citizen of the United States. This Court has
9
Gorbach found no flaw in this specific provision, although invalidating the authority of
the Attorney General to create an administrative denaturalization process generally. Indeed, the
rationale of Gorbach strongly indicates that citizenship must be accepted as valid absent a final
order setting aside a denaturalization order pursuant to § 1451(a), as the decision repeatedly
emphasizes the fatal flaw in any approach that would authorize "the terrible power to take
citizenship away" without explicit authorization by Congress. Gorbach, 219 F.3d at 1099.
12
no authority to conclude otherwise in this criminal case.10 Hence, the jurisdictional requirement
under § 1203 that the victim is a U.S. citizen is satisfied. The criminal prosecution of defendants
under 18 U.S.C. § 1203 for hostage taking of a citizen of the United States may therefore
proceed, and Demerieux's motion to dismiss will be denied.
III. Clarke's Motion to Stay the Trial
In a motion closely related to Demerieux's motion to dismiss, Clarke, on behalf of all
defendants, moves to stay the trial of this case based on the pending petition for writ of
mandamus filed in Clarke v. Holder, Civil Action No. 09-0753 (D.D.C.). He contends that a stay
of the trial is warranted because, if the petition for writ of mandamus is granted, the U.S.
Attorney will be required to institute proceedings to revoke Maharaj's citizenship pursuant to 8
U.S.C. § 1451(a), those proceedings will result in a final judgment revoking Maharaj's
citizenship ab initio, and that lack of citizenship would vitiate this Court's exercise of jurisdiction
over this criminal action. See Defs.' Joint Reply and Joint Motion for Stay at 1-3. The
government counters that the U.S. Attorney has no duty to act on defendants' request to institute
revocation proceedings because the decision to pursue revocation of citizenship under § 1451(a)
is committed to its enforcement discretion. See Gov't Opp'n at 11-13. Moreover, the
government submits that, acting pursuant to that enforcement discretion, there is a longstanding
policy not to bring post-mortem denaturalization actions. Id. at 17-19. The government thus
represents that the U.S. Attorney will not bring a denaturalization action against Maharaj, and
thus there is no reason to stay the criminal prosecution to wait for that to happen. Id. at 19.
The motion to stay is closely intertwined with defendant's mandamus action, and hence it
10
The status of Maharaj as a U.S. citizen ("a national of the United States") is a legal
status and can only be altered by a court through a proper § 1451 process.
13
is necessary to evaluate the likelihood of success on that action in deciding whether to stay the
criminal prosecution. Under the Mandamus Act, 28 U.S.C. § 1391, a court has jurisdiction to
grant mandamus relief only if "(1) the plaintiff has a clear right to relief; (2) the defendant has a
clear duty to act; and (3) there is no other adequate remedy available to plaintiff." Fornaro v.
James, 416 F.3d 63, 69 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C.
Cir. 2002)); accord In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005). "[I]f
there is no clear and compelling duty under the statute as interpreted, the district court must
dismiss the action." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc). Even if the
petitioner satisfies all three elements, whether the extraordinary remedy of mandamus should
issue is discretionary. Id.The linchpin of Clarke's argument is that the U.S. Attorney has a "clear duty" to pursue
revocation of Maharaj's citizenship because the statute provides that "[i]t shall be the duty of the
United States attorneys" to institute such proceedings "upon affidavit showing good cause"11 --
here, the affidavits of Reita Pendry and George Steel. See Clarke Mandamus Pet. at 4 & Attach.
A; Demerieux's Mot. to Dismiss at 12; Straker's Reply in support of Demerieux's Mot. to
Dismiss at 1-2. But in Heckler v. Chaney, 470 U.S. 821, 835 (1985), the Supreme Court has
instructed that when "shall" is used in an enforcement provision, it should be construed to confer
discretion on an agency unless the statute or regulations provide substantive standards that
11
Clarke also contends that this duty must be executed before the commencement of trial
and that failure to do so would constitute unreasonable delay warranting mandamus relief under
Telecommunications Res. and Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984). See Clarke
Mandamus Pet. at 6-9. That claim of unreasonable delay is spurious. Defendants submitted their
request to the U.S. Attorney by letter dated March 23, 2009, and only six weeks have passed
since then. Furthermore, the statute sets forth no deadline for action by the U.S. Attorney or any
other indication as to the timeframe for taking action on an affidavit.
14
constrain the exercise of discretion.12 Id. (holding that statute providing that violators "shall be
imprisoned . . . or fined" did not mandate prosecution); see Dubois v. Thomas, 820 F.2d 943,
948-49 (8th Cir. 1987) (deferring to agency interpretation that "shall" should be construed to
confer discretion); City of Yakima v. Surface Transp. Bd., 46 F. Supp. 2d 1092, 1099-1100 (E.D.
Wash. 1999) (same). More recently, the Supreme Court addressed whether "shall" imposed a
mandatory duty to take enforcement action in Town of Castle Rock v. Gonzales, 545 U.S. 748(2005). The Court declined to interpret "shall" as imposing a mandatory duty in the context of
determining when citizens have an entitlement to enforcement of laws under the due process
clause. See 545 U.S. at 760-61. The Court reaffirmed "the deep-rooted nature of law-
enforcement discretion even in the presence of seemingly mandatory legislative commands," and
recognized that those charged with enforcing the law "must use some discretion in deciding when
and where to enforce." Id.13 Considering the Supreme Court's admonition that the government
"carries a heavy burden of proof in a proceeding to divest a naturalized citizen of citizenship" --
that is, "clear, unequivocal, and convincing evidence" (Fedorenko v. United States, 449 U.S. 490,
505 (1981)) -- a U.S. attorney must necessarily possess discretion under § 1451(a) to determine,
12
Heckler v. Chaney indicates that the Clarke mandamus action also should be dismissed
because it concerns the agency's failure to take enforcement action -- a category of actions that
are presumptively unreviewable under § 701(a)(2) of the APA, which precludes judicial review
when "agency action is committed to agency discretion by law." 470 U.S. at 831. Although the
presumption may be overcome where the substantive statute or regulation provides guidelines for
the agency to follow in exercising its enforcement authority (id. at 832-33), the Court is doubtful
that the petitioners can overcome the presumption in the Clarke mandamus action.
13
Straker relies on United States v. Al-Banna, 2006 WL 3203745, at *2 (6th Cir. Nov. 7,
2006) (unpublished decision), as demonstrating that § 1451(a) creates a mandatory duty to act.
See Straker's Reply at 1-2. However, Al-Banna addressed only the interpretation of subsection
(e), holding that, where a defendant is convicted of unlawfully procuring naturalization under 18
U.S.C. § 1425, the sentencing court is required by § 1451(e) to declare the criminal defendant's
citizenship void. Id. That holding provides no guidance on whether a U.S. Attorney, acting
under § 1451(a), is constrained in exercising traditional enforcement discretion.
15
at a minimum, in which cases he or she is likely to meet that burden. In short, § 1451(a) does not
create a mandatory duty to institute proceedings to revoke naturalization and, therefore, Clarke
has no likelihood of success on his petition for writ of mandamus.
The record also overwhelmingly establishes that the Department of Justice is unlikely to
exercise its enforcement discretion to pursue a denaturalization proceeding with respect to
Balram Maharaj, in light of its longstanding policy not to bring post-mortem denaturalization
actions. As reported in a well-regarded treatise:
It is the policy of the Department of Justice not to bring suit or to continue a
pending suit for the purpose of revoking the naturalization of a person who is
deceased (assuming such a suit could be brought or continued), even though there
is reason to believe the naturalization was improperly procured.
Gov't Opp'n at 17 (quoting 3 Charles Gordon & Harry N. Rosenfield, Immigration Law and
Procedure, § 20.5c (Matthew Bender 1984)); see also Simons v. United States, 333 F. Supp. 855,
865 (S.D.N.Y.) (citing 3 Hackworth, Digest of Int'l Law 101-02 (1942)), aff'd, 452 F.2d 110 (2d
Cir. 1971).
The declaration of Eli M. Rosenbaum, the Director of the Office of Special Investigations
("OSI") at the U.S. Department of Justice, confirms that this policy remains firmly in place.14 He
states:
Based on my years of experience at OSI, and after consulting with several
other longtime staff members, I can state with confidence that OSI has never
instituted denaturalization proceedings against a deceased individual and has
never continued to pursue denaturalization proceedings if a defendant died prior
to their conclusion.
Upon learning of the death of a suspect in a denaturalization investigation,
OSI routinely closes the investigation.
14
The Office of Special Investigations is responsible for, inter alia, bringing suits to
denaturalize those who participated in acts of persecution before and during World War II on
behalf of Nazi Germany and its allies. See Rosenbaum Decl. ¶ 2.
16
Upon learning of the death of a defendant against whom a denaturalization
proceeding has been commenced, OSI routinely dismisses its denaturalization
complaint or does not oppose the motion of defense counsel that the case be
dismissed with prejudice.
Rosenbaum Decl. ¶¶ 5-7 (citations omitted). Defendants' rejoinder that a court has the authority
to entertain a post-mortem denaturalization action under § 1451(a) (see Straker Reply at 2-3)
does not advance his cause, since the government consistently exercises its enforcement
discretion not to pursue such actions.
Even if defendants could establish a "clear duty to act" entitling them to mandamus relief,
the Court would not stay the trial. See In re Cheney, 406 F.3d at 729 ("[E]ven if [petitioner]
overcomes all these hurdles, whether mandamus relief should issue is discretionary."). In the
unlikely event that defendants prevail on their mandamus petition, they are not without an
adequate remedy -- they may raise the lack of citizenship in post-trial motions before this Court
or, if convicted, on their direct appeal.15 And in the event a revocation order is issued after their
appeal has concluded, they may move to set aside their convictions under 28 U.S.C. § 2255.16 In
any of these settings, they could assert the same jurisdictional argument they raise now. For the
15
The Court is also concerned that a lengthy delay would vitiate defendants' rights to a
speedy trial under the Speedy Trial Act and the Sixth Amendment. It could be a year or longer
before denaturalization proceedings concluded. That is, resolution of the mandamus petition
would initially only lead to more time-consuming litigation -- first, the denaturalization
proceedings before a district court, which would likely require an evidentiary hearing, and
subsequently, a possible appeal of an adverse decision by Clarke or the government. Anderson
Straker has made known to this Court on previous occasions his strong desire to proceed to trial
at the earliest possible date, and it is not clear that he or any other defendant intends to waive
their speedy trial rights.
16
At the motions hearing, the government submitted that, even if Maharaj's citizenship
were to be revoked post-mortem, and deemed void ab initio, the Court would still have
jurisdiction over this criminal action because Maharaj was cloaked in U.S. citizenship at the time
of the hostage taking events. The Court need not address that question to resolve the pending
motions because, on the present record, there has been no revocation of citizenship and there is
no prospect of revocation.
17
foregoing reasons, then, the Court concludes that defendants are unlikely to succeed on their
mandamus petition. Therefore, there is no reason to stay the trial of this case.
IV. Government's Motion in Limine
The government moves for an order in limine precluding the defendants from introducing
evidence at trial on the matter of whether Balram Maharaj was qualified to become a U.S.
citizen, arguing that whether he should have been granted citizenship is irrelevant to these
proceedings. Gov't Opp'n at 20-21. Defendants oppose the motion on the ground that excluding
their evidence would deprive them of their Sixth Amendment right to present a defense. See
Defs.' Joint Reply at 4. They also suggest that the Court defer ruling on the government's request
until an unspecified later date. See Demerieux Reply at 3. With jury selection scheduled to
begin in less than 10 days, the Court finds it imprudent to delay ruling on this important issue.
Having fully considered the scope of this Court's authority to declare Maharaj's citizenship void,
the Court has before it all the information it needs to resolve this evidentiary matter.
As foreshadowed by the Court's discussion of § 1451(a) above, the Court will grant the
government's motion in limine. It is undisputed that the United States granted Maharaj's
application for naturalization in or around 1995 and that he possessed in April 2005 an authentic
certificate of naturalization and U.S. passport documenting his citizenship. The only dispute is
whether Maharaj's citizenship should nonetheless be found void because he allegedly was not
qualified for citizenship and procured it by fraud. The Court has held, however, that "§ 1451 sets
forth the exclusive process for declaring the citizenship of a naturalized person void and one's
citizenship remains valid until an order setting aside citizenship has been issued in compliance
with § 1451"; hence, because no order revoking Maharaj's citizenship has been issued, his
certificate of naturalization and U.S. passport conclusively establish that he was, until his death, a
18
citizen of the United States. Supra at 10-12. It necessarily follows, then, that the jury may not
decide the validity of Maharaj's citizenship, as that is a question of one's legal status. Indeed,
because the certificate of naturalization and U.S. passport conclusively establish his citizenship,
evidence contesting the validity of his citizenship is irrelevant.
The determination that the Court, rather than the jury, decides the status of the victim's
citizenship under these circumstances is consistent with this Circuit's recognition in at least one
other context that a question involving the legal status of a person is a question of law for the
court. See United States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (Whether "the
defendants were public officials . . . is not a question for the jury . . . . [W]e hold that whether an
individual is a public official within the meaning of the [bribery] statute is a question of law, and
as such, a matter for judicial resolution"); see also United States v. Anton, 546 F.3d 1355, 1357-
58 (11th Cir. 2008) (holding that, in a felon-in-possession prosecution, the defendant's status as a
convicted felon presented a question of law for the court, rather than a question of fact for the
jury). Moreover, creating a role for the jury to determine the legality of a person's citizenship is
wholly inconsistent with the exclusivity of the § 1451(a) process and the Supreme Court's clear
recognition that a naturalized citizen, having acquired the precious right of American citizenship,
is entitled to the safeguards provided under § 1451(a) before his citizenship can be declared void
by a court.17 See Fedorenko, 449 U.S. at 505; Zucca, 351 U.S. at 100.
The Court finds no merit in defendants' generalized contention that the Sixth Amendment
right to present a defense requires the Court to admit defense evidence contesting the validity of
17
It bears noting that, where the U.S. Attorney does initiate denaturalization proceedings,
a court, not a jury, makes the determination whether to revoke one's citizenship under § 1451(a).
See United States v. Ciurinskas, 148 F.3d 729, 735 (7th Cir. 1998) (citing Luria v. United States,
231 U.S. 9 (1913), and Schneiderman v. United States, 320 U.S. 118 (1943)).
19
Maharaj's citizenship. It is well-settled that "[a] defendant's right to present . . . evidence is not
unlimited, but rather is subject to reasonable restrictions," and that rulings excluding evidence
from trial "do not abridge an accused's right to present a defense so long as they are not arbitrary
or disproportionate to the purposes they are designed to serve." United States v. Scheffer, 523
U.S. 303, 308 (1998) (citation omitted); see also Lannert v. Jones, 321 F.3d 747, 753-54 (8th Cir.
2003) ("A defendant does not have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of evidence") (citation omitted);
United States v. Libby, 475 F. Supp. 2d 73, 90-91 (D.D.C. 2007) ("although the Constitution
entitles a defendant an opportunity to present his version of the facts . . . to the jury so it may
decide where the truth lies, that guarantee extends only to relevant evidence," and also is "subject
to reasonable restrictions, including restrictions imposed by the other rules of evidence")
(citations omitted). Generally, there is no right to present evidence to the jury on questions that
are reserved for the court to resolve, including legal questions, and indeed, that have already been
resolved. See Anton, 546 F.3d at 1357-58 (holding that the Sixth Amendment right to present a
meaningful defense does not entitle a defendant to present evidence on a question of law); see
also United States v. Gordon, 641 F.2d 1281, 1288-89 (9th Cir. 1981) (holding that Sixth
Amendment right to have jury determine essential elements of the offense does not encompass
determination of questions of law). In short, the exclusion of irrelevant evidence, as the Court
has decided here, is fully consistent with the Sixth Amendment. Accordingly, the Court will
grant the government's motion in limine and enter an order prohibiting defendants from
introducing evidence on the matter of whether Balram Maharaj was qualified for U.S. citizenship
20
or whether his citizenship was otherwise void.18
CONCLUSION
For the foregoing reasons, Straker's and Demerieux's motions to dismiss and Clarke's
motion to stay the trial will all be denied. The Court will grant the government's motion in
limine to preclude defendants from introducing evidence on the matter of whether Balram
Maharaj was qualified for U.S. citizenship or whether his citizenship was otherwise void. A
separate Order accompanies this Memorandum Opinion.
/s/
JOHN D. BATES
United States District Judge
Date: May 8, 2009
18
It is conceivable that in presenting evidence concerning the victim (Maharaj) beyond
his legal status as a U.S. national or citizen (for example, his record of U.S. military service in
Vietnam), the government could open an issue that defendants might seek to respond to with
some of the same evidence proffered on the citizenship issue. The Court will address that
situation if and when it arises.
21