United States v. Sean Brehm , 691 F.3d 547 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4755
SEAN THEODORE BREHM,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Anthony J. Trenga, District Judge.
(1:11-cr-00011-AJT-1)
Argued: May 16, 2012
Decided: August 10, 2012
Before TRAXLER, Chief Judge, and KING and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Chief Judge Traxler and Judge Duncan joined.
COUNSEL
ARGUED: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Michael Alan
Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Jeffrey C.
2 UNITED STATES v. BREHM
Corey, Research and Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Ronald
L. Walutes, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia;
Lanny A. Breuer, Assistant Attorney General, John D.
Buretta, Acting Deputy Assistant Attorney General, James S.
Yoon, Senior Trial Attorney, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.
OPINION
KING, Circuit Judge:
Sean Theodore Brehm, a citizen of South Africa, pleaded
guilty in the Eastern District of Virginia to a federal charge
of assault resulting in serious bodily injury, on condition that
he be allowed to challenge through appeal the jurisdictional
basis of the indictment underlying his conviction. The grand
jury accused Brehm of stabbing a British subject, "J.O.," dur-
ing an altercation at Kandahar Airfield ("KAF"), while both
men were employed with private contractors supporting the
NATO war effort in Afghanistan.
On appeal, Brehm maintains that the indictment’s reliance
on the Military Extraterritorial Jurisdiction Act ("MEJA") was
misplaced, in that the statute — which Brehm admits is valid
on its face — cannot be applied to him in a manner consistent
with the Constitution. Brehm also asserts that the government
has failed to establish a sufficient nexus between him and the
United States to support the exercise of criminal jurisdiction,
pointing out that, prior to his arrival in Virginia as an accused,
neither he nor his victim had ever set foot in this country. For
that and other reasons, according to Brehm, his prosecution
does not comport with due process. As described below, we
reject Brehm’s challenges to his conviction and affirm the dis-
trict court’s judgment.
UNITED STATES v. BREHM 3
I.
KAF is a NATO-operated military base that, in 2010, was
home to about 19,000 troops, more than 15,000 of which were
American. Brehm was employed by DynCorp International
LLC, a domestic military contractor headquartered in Falls
Church, Virginia. On Thanksgiving Day, November 25, 2010,
Brehm was at KAF to process arriving DynCorp employees,
when he encountered J.O. The latter was an employee of
Global Strategies Group, a United Kingdom entity also pro-
viding support services. J.O. had just returned from a vacation
with his American wife, who was likewise employed at KAF.
The two men engaged in a heated altercation concerning an
ongoing and rancorous dispute, which ended calamitously
with Brehm stabbing J.O. in the left arm and stomach, seri-
ously injuring him. Afterward, Brehm was taken into custody
by United States military police.
Brehm had signed a "Foreign Service Employment Agree-
ment" with DynCorp in July 2010. The agreement provided,
in pertinent part, that Brehm "has been informed of, under-
stands and accepts that [he] may be subject to U.S. . . . federal
civilian criminal jurisdiction under the [MEJA] by accompa-
nying the U.S. Armed Forces outside the United States." J.A.
121.1 Following the filing of a criminal complaint and issu-
ance of an arrest warrant in the Eastern District of Virginia,
a magistrate judge telephonically conducted a preliminary
hearing, after which Brehm was flown to Alexandria.
The grand jury’s indictment ensued on January 5, 2011,
charging Brehm in Count One with assault with a dangerous
weapon, in contravention of 18 U.S.C. § 113(a)(3), and in
Count Two with assault resulting in serious bodily injury, as
proscribed by 18 U.S.C. § 113(a)(6). The offenses described
in the respective counts constitute federal crimes when com-
1
Citations herein to "J.A. ___" refer to the contents of the Joint Appen-
dix filed by the parties to this appeal.
4 UNITED STATES v. BREHM
mitted "within the special maritime and territorial jurisdiction
of the United States." 18 U.S.C. § 113(a). The indictment also
referenced MEJA, which incorporates § 113(a)(6) (and many
other criminal provisions) by specifying:
Whoever engages in conduct outside the United
States that would constitute an offense punishable by
imprisonment for more than 1 year if the conduct
had been engaged in within the special maritime and
territorial jurisdiction of the United States . . . while
employed by or accompanying the Armed Forces
outside the United States . . . shall be punished as
provided for that offense.
18 U.S.C. § 3261(a). MEJA defines persons "employed by the
Armed Forces outside the United States" to include employ-
ees of contractors or subcontractors of the Department of
Defense ("DOD"). See id. § 3267(1)(A)(iii).
Brehm promptly filed a pair of motions seeking dismissal
of the indictment. The first motion, on February 25, 2011,
asserted that "Brehm’s connection to the United States is so
lacking" that the district court could not, "consistent with the
requirements of the Due Process Clause, exercise jurisdiction
under MEJA." J.A. 19. The second, on March 4, 2011,
insisted that MEJA, as applied to Brehm, was unconstitutional
in that "the framers did not grant Congress the power to police
routine assaults between foreigners that occur abroad and do
not harm the United States." Id. at 44. The court conducted a
hearing on the motions on March 29, 2011, and it denied them
both by memorandum opinion the following day. See United
States v. Brehm, No. 1:11-cr-00011 (E.D. Va. Mar. 30, 2011)
(the "Opinion").2
Facing trial on the indictment, Brehm agreed with the gov-
ernment to conditionally plead guilty to Count Two in return
2
The unpublished Opinion is found at J.A. 167-82.
UNITED STATES v. BREHM 5
for, inter alia, being permitted to appeal the district court’s
denial of his motions to dismiss. See Fed. R. Crim. P.
11(a)(2). On April 12, 2011, the court accepted the plea and
dismissed Count One of the indictment. For his conviction on
Count Two, Brehm was sentenced on July 8, 2011, to forty-
two months in prison. By timely notice filed July 21, 2001,
Brehm appeals.
II.
On appeal of a motion to dismiss an indictment, we review
de novo the district court’s legal analysis. See United States
v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002). In so
doing, we accept any facts found by the court as conclusive
except insofar as those findings are shown to be clearly erro-
neous. Id. The parties to this appeal have stipulated to the
material underlying facts, presenting us with pure questions of
law.
III.
A.
Brehm does not contest the constitutionality of MEJA on
its face.3 Rather, he "acknowledges that under some circum-
stances . . . Congress might have authority to criminalize acts
of foreign nationals" as set forth in the statute. Br. of Appel-
lant 30 n.3. Brehm suggested to the district court that he
would have been susceptible to prosecution under MEJA had
he, for example, "assaulted a member of the United States
armed forces or defrauded the United States government,"
J.A. 43, but he hastens to point out that such hypothetical
facts are "not present here." Br. of Appellant 30 n.3.
3
To prevail on a facial challenge, Brehm would be compelled to demon-
strate "that no set of circumstances exists" under which MEJA could be
constitutionally valid. United States v. Salerno, 481 U.S. 739, 745 (1987).
6 UNITED STATES v. BREHM
Accordingly, Brehm downplays his bloody encounter with
J.O. as "a minutes-long fight" culminating in "a run-of-the-
mill assault . . . over a personal dispute in a foreign country."
Br. of Appellant 31-33. Brehm emphasizes that neither he nor
the victim are American citizens, and he maintains that he
"was not acting in furtherance of his DynCorp job duties
when he assaulted J.O." Id. at 35.
Insofar as the circumstances surrounding Brehm’s conduct
may be described as varying in some respects from the hypo-
thetical situations he concedes manifest constitutional applica-
tions of MEJA, such distinctions produce no real difference.
The enumerated powers granted Congress by Article I, Sec-
tion 8 of the Constitution are of sufficient reach to encompass
any of the scenarios articulated above, including Brehm’s. Of
particular relevance here is Congress’s express authority to
"raise and support Armies." U.S. Const. art. I, § 8, cl. 12.
More generally, Congress is entitled to "make all Laws which
shall be necessary and proper" to adequately support our
armed forces. U.S. Const. art. I, § 8, cl. 18; see Rostker v.
Goldberg, 453 U.S. 57, 65 (1981) (observing that congressio-
nal authority "to raise and support armies and to make all laws
necessary and proper to that end is broad and sweeping").4
Armies, by their very nature, must be expected to operate in
foreign lands, and their need for support does not end at our
borders.
Contrary to the impression Brehm seeks to convey, it is not
4
In its report on MEJA, the House of Representatives Committee on the
Judiciary invoked the Necessary and Proper Clause in conjunction with
several other enumerated powers as bases for the statute’s enactment,
including those permitting Congress to "define and punish . . . Offenses
against the Law of Nations"; to "make Rules for the Government and Reg-
ulation of the land and naval Forces"; and to "provide for organizing, arm-
ing, and disciplining, the Militia, and for governing such part of them as
may be employed in the Service of the United States." U.S. Const. art. I,
§ 8, cl. 10, 14, 16 (cited at H.R. Rep. No. 106-778(I), at 14 (2000), 2000
WL 1008725, at *14).
UNITED STATES v. BREHM 7
unusual that a foreign citizen is called to answer in an Ameri-
can court for his alleged criminal wrongdoing, as that occurs
routinely with respect to crimes committed within our
nation’s borders. Indeed, the government dryly observed
before the district court that "[t]he U.S. Bureau of Prisons is
filled with foreign nationals, Your Honor." J.A. 162. And,
presumably, in the vast majority of such proceedings, the
identity or citizenship of the victim matters not.
The crux of Brehm’s complaint, then, cannot be that his cit-
izenship — or that of his victim — is "foreign" vis à vis the
United States, but that, against that backdrop, his alleged
crime occurred in a place foreign both to him and to the pros-
ecuting sovereign. The latter, of course, is precisely what
MEJA contemplates by its specific application to "conduct
outside the United States." 18 U.S.C. § 3261(a).5 Furthermore,
it could hardly have been unanticipated by Congress that at
least some persons employed overseas by DOD contractors or
subcontractors would not be American citizens.
It is Brehm’s status as an employee of DynCorp that brings
his actions at KAF within the criminal misconduct that MEJA
was enacted to govern; his status as a "foreign" employee is
irrelevant, as are the attributes of the victim. It may well have
been the case, as Brehm asserts, that his assault of J.O. was
undertaken outside the scope of his employment. Rarely, we
think, would a private employer include vicious attacks on
third parties within an employee’s job description. Had it not
5
The proposition that federal crimes are punishable though committed
outside of the United States is not controversial, at least insofar as such
prosecution is consistent with the law of nations and so long as the enact-
ment evidences Congress’s intent to extend its extraterritorial reach. See
United States v. Bowman, 260 U.S. 94, 97-98 (1922). Indeed, in certain
instances, Congress has been held unbound by international law, see
United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003), and its silence on
extraterritoriality not determinative with respect to "‘criminal statutes
which are, as a class, not logically dependent on their locality for the Gov-
ernment’s jurisdiction,’" id. (quoting Bowman, 260 U.S. at 98).
8 UNITED STATES v. BREHM
been for his employment by DynCorp, however, Brehm
would have been nowhere near KAF, and he would have had
no opportunity to commit the offense of conviction.
The district court, for its part, took a somewhat different
view, ruling that MEJA’s legitimacy inheres in Congress’s
constitutional role as the sole legislative authority "with
respect to affairs external to the boundaries of the United
States . . . based on national sovereignty." Opinion 13.6 We
offer no opinion as to the federal government’s implied pow-
ers or the accuracy of the analysis below, in that we reach the
same result on de novo review by resort to the express author-
ity granted Congress by the Constitution. See United States v.
Smith, 395 F.3d 516, 519 (4th Cir. 2005) (observing that
appellate review "not limited to evaluation of the grounds
offered by the district court to support its decision," and that
we "may affirm on any grounds apparent from the record").
MEJA is constitutional as applied in Brehm’s case.
B.
Though a criminal statute having extraterritorial reach is
declared or conceded substantively valid under the Constitu-
tion, its enforcement in a particular instance must comport
with due process. Some courts have, as a proxy for due pro-
cess, required "a sufficient nexus between the defendant and
the United States, so that such application would not be arbi-
trary or fundamentally unfair." United States v. Davis, 905
F.2d 245, 248-49 (9th Cir. 1990) (citation omitted); see also
United States v. Yousef, 327 F.3d 56, 111 (2d Cir. 2003).7 The
6
See also United States v. Williams, 722 F. Supp. 2d 1313, 1317-18
(M.D. Ga. 2010) (deeming enumerated powers analysis irrelevant to
MEJA facial challenge, based on conclusion that Article 1, Section 8
relates solely to allocation of state and federal authority, with such author-
ity in realm of international affairs reposed wholly in latter (citing United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-16 (1936))).
7
Although we find the analyses of those courts instructive, we need not
decide, in this case, whether a showing of sufficient nexus is either ade-
quate or required to satisfy due process in the prosecution of a foreign
national in U.S. courts.
UNITED STATES v. BREHM 9
court of appeals in Davis concluded that the requisite nexus
was present in a prosecution under the Maritime Drug Law
Enforcement Act ("MDLEA"), where the British defendant
and his boat were seized off the coast of California while
attempting to smuggle marijuana into the United States. See
905 F.2d at 249. In Yousef, the Second Circuit arrived at the
same result with respect to Middle Eastern terrorists tried for
multiple federal crimes associated with their plot to bomb
American commercial aircraft in Southeast Asia. See 327 F.3d
at 118.
It is undoubtedly the case that, unlike the defendants in
Davis and Yousef, Brehm did not target his conduct toward
American soil or American commerce. Nevertheless, his
actions affected significant American interests at KAF, not
the least of which were the preservation of law and order on
the base, the maintenance of military-related discipline, and
the reallocation of DOD resources to confine Brehm, provide
care for J.O., and investigate the incident. Indeed, Brehm’s
very presence inside KAF was possible only pursuant to an
official DOD Letter of Authorization, entitling him to DOD-
furnished transportation, meals, and equipment. Although
KAF was not technically territory of the United States, the
American influence was so pervasive that we think it a suit-
able proxy for due process purposes, such that the imposition
of American criminal law there is not arbitrary.
On occasion, the connection between the United States and
a putative criminal defendant may properly be more fluid, as
was the case in United States v. Angulo-Hernandez, 565 F.3d
2 (1st Cir. 2009). In Angulo-Hernandez, a MDLEA prosecu-
tion, the court of appeals rejected the challenge of drug smug-
glers whose Bolivian-flagged boat was intercepted by the
Coast Guard in international waters. The smugglers were
prosecuted pursuant to an agreement between the United
States and Bolivia to enforce the former’s drug laws against
the latter’s maritime fleet members. Under the circumstances,
the First Circuit had little difficulty concluding that due pro-
10 UNITED STATES v. BREHM
cess is satisfied even absent a discernible jurisdictional nexus
where "the flag nation has consented to the application of
United States law to the defendants." Id. at 11.
The American presence at KAF and throughout Afghani-
stan is regulated in part by a written arrangement similar in
respects to the one in Angulo-Hernandez. See Agreement
regarding the Status of United States Military and Civilian
Personnel of the U.S. Department of Defense Present in
Afghanistan in connection with Cooperative Efforts in
Response to Terrorism, Humanitarian and Civic Assistance,
Military Training and Exercises, and Other Activities, U.S.-
Afg., May 28, 2003, 42 I.L.M. 1500, 2003 WL 21754316[hereinafter the "Agreement"]. Within the Agreement, the
Afghan government, in recognition of "the particular impor-
tance of disciplinary control by the United States military
authorities," authorized the American government "to exer-
cise its criminal jurisdiction over the personnel of the United
States." 2003 WL 21754316, at *4.8
The Agreement refers to "personnel" without limiting the
term to those serving in the military, and without purporting
to exclude civilians. It is reasonable, then, to interpret "per-
sonnel of the United States" to include employees of DynCorp
and other American contractors and subcontractors. With
Afghanistan having disclaimed any interest in prosecuting
criminal conduct at KAF by those situated similarly to Brehm,
due process is not offended by the United States stepping into
the jurisdictional void. Indeed, absent the credible threat of
American prosecution of civilian crimes at KAF, it is conceiv-
able that such conduct would go unpunished. The risk of that
sort of random lawlessness is readily seen as inimical to the
success of the military mission in Afghanistan, and thus con-
8
The Agreement was not in the record before the district court, but it
nevertheless is a public act or proclamation comprising "historical and
notorious facts, of which the court can take regular judicial notice." United
States v. Reynes, 50 U.S. 127, 147-48 (1850).
UNITED STATES v. BREHM 11
trary to the American interest in that mission. Insofar as the
enactment of MEJA serves to legitimately advance that inter-
est, its application is unlikely to be arbitrary.
Nor do we perceive any inherent unfairness in Brehm’s
prosecution. In that regard, United States v. Al Kassar, 660
F.3d 108 (2d Cir. 2011), is instructive. In Al Kassar, the Sec-
ond Circuit considered the appeals of foreign arms dealers
arrested and brought to the United States for trial. The defen-
dants stood accused of numerous crimes, including a conspir-
acy to kill American citizens and federal officers or
employees. The conspiracy accusations were based on the
defendants’ discussions with undercover DEA agents to sell
surface-to-air missiles and other weapons for use against the
U.S. military in Columbia. In addressing the defendants’ due
process argument premised on unfairness, the court of appeals
observed:
Fair warning does not require that the defendants
understand that they could be subject to criminal
prosecution in the United States so long as they
would reasonably understand that their conduct was
criminal and would subject them to prosecution
somewhere. The defendants were not ensnared by a
trap laid for the unwary. Supplying weapons illegally
. . . to a known terrorist organization with the under-
standing that those weapons would be used to kill
U.S. citizens and destroy U.S. property is self-
evidently criminal.
660 F.3d at 119.
Brehm reasonably should have been under a similar under-
standing when it came to stabbing J.O., all the more so in
light of the relevant provisions of his employment contract
with DynCorp. Brehm’s acknowledgement and acceptance of
the warnings therein regarding the criminal jurisdiction
12 UNITED STATES v. BREHM
asserted by the United States constituted notice of the same
sufficient to dispel any surprise.
IV.
In accordance with the foregoing, we affirm Brehm’s con-
viction in the district court.
AFFIRMED