United States v. Yousef

                                  TABLE OF CONTENTS

INTRODUCTION ........................................................................77

GENERAL BACKGROUND ..................................................................78

        I.  World Trade Center Bombing ..............................................78
       II.  Airline Bombing .........................................................79

AIRLINE BOMBING CASE ................................................................80

  BACKGROUND ........................................................................80

        I.  Preparation for Airline Bombing Conspiracy ..............................80
       II.  Discovery of Airline Bombing Plot .......................................81
      III.  Arrests of Shah, Yousef, and Murad ......................................82

  DISCUSSION ........................................................................85

        I.  Assertion of Extraterritorial Jurisdiction Over Defendants Yousef
              and Murad .............................................................85
            A.  Jurisdiction to Prosecute Defendants' Extraterritorial Conduct
                  Under Federal Law .................................................86
                1.  Applicable Law ..................................................86
                2.  Counts Thirteen and Fourteen ....................................86
                3.  Count Twelve ....................................................87
                4.  Count Nineteen ..................................................88
            B.  Exercise of United States Extraterritorial Jurisdiction and
                  Customary International Law .......................................90

                1.  Bases of Jurisdiction over the Counts Charged ...................92
                    a.  Relationship between Domestic and International Law
                          in Yousef's Prosecution ...................................92
                    b.  Treaty-Based Jurisdiction: The Hague and Montreal
                          Conventions ...............................................94
                2.  Jurisdiction over Counts Twelve through Eighteen ................96
                3.  Jurisdiction over Count Nineteen ................................97
                    a.  The District Court's Holding and Yousef's Challenges
                          on Appeal .................................................97
                          i.  The District Court's Opinion ..........................98
                         ii.  The Use of Authority in Determining Customary
                                International Law ...................................99
                        iii.  The Universality Principle Provides for Jurisdiction
                                over Only a Limited Set of Acts Violating
                                the Law of Nations .................................103
                    b.  Jurisdiction Is Proper Under United States Laws
                          Giving Effect to Its Obligations Under the Montreal
                          Convention ...............................................108
                    c.  In Any Event, Jurisdiction Over Count Nineteen Is
                          Proper under the Protective Principle of Customary
                          International Law ........................................110
            C.  Due Process Claims .................................................111
                1.  Due Process Nexus ..............................................111
                2.  Due Process in Conduct of Trial ................................112
            D.  Venue in Southern District of New York .............................114
            E.  Doctrine of Specialty ..............................................115
       II.  Conviction of Yousef Under 18 U.S.C. § 2332 .......................116
            A.  Prosecutorial Discretion Under Section 2332(d) .....................116
            B.  Failure to Charge Jury on Intent to Retaliate ......................117
      III.  District Court Failure to Sua Sponte Voir Dire the Jury Mid-Trial
              Regarding the Pope and the Roman Catholic Church .....................118
       IV.  Liberation Army Letter .................................................120
            A.  Admission of Liberation Army Letter ................................121
            B.  Failure to Redact Liberation Army Letter ...........................122
        V.  District Court Denial of Murad's Motion to Suppress His Post-Arrest
              Statement ............................................................122
            A.  District Court Decision ............................................123
            B.  Standard of Review .................................................124
            C.  Murad's Alleged Request for a Lawyer ...............................124
            D.  Voluntariness of Confession ........................................125
                1.  FBI Coercion ...................................................125
                2.  Hegarty's Testimony ............................................126
                3.  Murad's Allegations of Torture by Philippine Officials .........126
                4.  United States Government's Lack of Knowledge Regarding
                      Philippine Mistreatment ......................................127
            E.  Harmless Error .....................................................128
       VI.  Murad's Sixth Amendment Right to Present a Defense .....................128
            A.  Applicable Law .....................................................128
            B.  Reports by Amnesty International and the United States
                  Department of State Regarding Abusive Treatment by
                  Philippine Police ................................................128
            C.  Discovery from the Philippines .....................................129
            D.  Jury Charge on Voluntariness .......................................130
      VII.  "Bully" Charge on Circumstantial Evidence of Intent ....................131
     VIII.  Sufficiency of the Evidence on Yousef's Attempt Convictions ............133

WORLD TRADE CENTER CASE ............................................................135

  BACKGROUND .......................................................................135

        I.  Indictment and Apprehension of Yousef and Ismoil .......................135
       II.  The World Trade Center Bombing Trial ...................................135

  DISCUSSION .......................................................................137

        I.  Yousef's Pre-Trial Motions .............................................137
            A.  Motion to Dismiss the Indictment ...................................137
            B.  Motion to Suppress .................................................139
                1.  Attachment of Sixth Amendment Right to Counsel Upon
                      Indictment for the World Trade Center Bombing ................140
                2.  Invocation of Right to Counsel .................................141
                3.  Sixth Amendment Rights Based on Assignment of Asylum
                      Counsel ......................................................142
                4.  Purported Due Process Requirement of Appointment of
                      Counsel ......................................................143
                5.  Voluntariness of Yousef's Post-Arrest Statements ...............144
       II.  Ismoil's Motion to Suppress His Statement to Jordanian Authorities .....144
      III.  The Daubert Hearing ....................................................147
       IV.  Yousef's Motion to Sever ...............................................149
        V.  The Admission of Ismoil's Redacted Statement ...........................152
       VI.  Yousef's Motion for a Change of Venue ..................................155
      VII.  Exclusion of Evidence of Government's Inconsistent Theories ............155
     VIII.  Admission of Government's Fingerprint Evidence and Telephone
              Call Charts ..........................................................157
       IX.  Jury Instructions Concerning Ismoil's Knowledge ........................158
        X.  Jury Instruction on "Aiding and Abetting" ..............................160
       XI.  Failure to Dismiss the Alternate Jurors ................................160
      XII.  Cumulative Violation of Right to Fair Trial ............................161

SENTENCING ISSUES ..................................................................161

        I.  Ex Post Facto Claim ....................................................162
       II.  Length of Sentences ....................................................162
      III.  Fines and Restitution ..................................................164
       IV.  Special Conditions of Confinement ......................................165

POST JUDGMENT ISSUES ...............................................................166

        I.  "Scarpa Materials" .....................................................166
       II.  Recusal ................................................................169

CONCLUSION .........................................................................170

        I.  Airline Bombing Case ...................................................170
       II.  World Trade Center Case ................................................171
      III.  Sentencing Issues ......................................................172
       IV.  Post-Judgment Issues ...................................................173

Defendants-appellants Ramzi Yousef, Eyad Ismoil, and Abdul Hakim Murad appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Kevin Thomas Duffy, Judge) on April 13, June 2, and June 15, 1998, respectively. Judge Duffy presided over two separate jury trials. In the first trial, Yousef, Murad, and Wali Khan Amin Shah were tried on charges relating to a conspiracy to bomb United States commercial airliners in Southeast Asia. In the second trial, Yousef and Ismoil were tried for their involvement in the February 1993 bombing of the World Trade Center in New York City. Yousef, Ismoil, and Murad now appeal from their convictions, asserting a number of claims. Yousef and Ismoil also appeal from the District Court's denial of several of their post-judgment motions. In reviewing these claims, we view the evidence in the light most favorable to the Government, as required by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The conspiracy to bomb the World Trade Center began in the Spring of 1992, when Yousef met Ahmad Mohammad Ajaj at a terrorist training camp on the border of Afghanistan and Pakistan. After formulating their terrorist plot, Yousef and Ajaj traveled to New York together in September 1992. In Ajaj's luggage, he carried a "terrorist kit" that included, among other things, bomb-making manuals. After Yousef and Ajaj arrived at John F. Kennedy International Airport, inspectors of the Immigration and Naturalization Service ("INS") discovered the "terrorist kit" in Ajaj's luggage and arrested him. Although Yousef was also stopped, he and Ajaj did not disclose their connection to one another, and INS officials allowed Yousef to enter the United States.2

Once in New York, Yousef began to put together the manpower and the supplies that he would need to carry out his plan to bomb the World Trade Center. Yousef assembled a group of co-conspirators to execute his plan, including defendants Mohammad Salameh, Nidal Ayyad, Mahmud Abouhalima, and Abdul Rahman Yasin. Next, Yousef began accumulating the necessary ingredients for the bomb. He ordered the required chemicals, and his associates rented a shed in which to store them. Yousef and Salameh established their headquarters at an apartment they rented in Jersey City, New Jersey, an urban center located across the Hudson River from Manhattan. The apartment also functioned as their bomb-making factory.

In December 1992, Yousef contacted Ismoil, who was then living in Dallas, Texas. On February 22, 1993, Ismoil joined Yousef and the others in New York to help complete the bomb preparations.

On February 26, 1993, Yousef and Ismoil drove a bomb-laden van onto the B-2 level of the parking garage below the World Trade Center. They then set the bomb's timer to detonate minutes later. At approximately 12:18 p.m. that day, the bomb exploded, killing six people, injuring more than a thousand others, and causing widespread fear and more than $500 million in property damage.

Soon after the bombing, Yousef and Ismoil fled from the United States. Yousef and Ismoil were indicted for their participation in the bombing on March 31, 1993 and August 8, 1994, respectively. Yousef was captured in Pakistan nearly two years after the bombing, and Ismoil was arrested in Jordan a little over two years after the attack. Both were returned to the United States to answer the charges in the indictment.

A year and a half after the World Trade Center bombing, Yousef entered Manila, the capital of the Philippines, under an assumed name. By September 1994, Yousef had devised a plan to attack United States airliners. According to the plan, five individuals would place bombs aboard twelve United States-flag aircraft that served routes in Southeast Asia. The conspirators would board an airliner in Southeast Asia, assemble a bomb on the plane, and then exit the plane during its first layover. As the planes continued on toward their next destinations, the timebombs would detonate. Eleven of the twelve flights targeted were ultimately destined for cities in the United States.

Yousef and his co-conspirators performed several tests in preparation for the airline bombings. In December 1994, Yousef and Wali Khan Amin Shah placed one of the bombs they had constructed in a Manila movie theater. The bomb exploded, injuring several patrons of the theater. Ten days later, Yousef planted another test bomb under a passenger's seat during the first leg of a Philippine Airlines flight from Manila to Japan. Yousef disembarked from the plane during the stopover and then made his way back to Manila. During the second leg of the flight, the bomb exploded, killing one passenger, a Japanese national, and injuring others.

The plot to bomb the United States-flag airliners was uncovered in January 1995, only two weeks before the conspirators intended to carry it out. Yousef and Murad were burning chemicals in their Manila apartment and accidentally caused a fire. An apartment security guard saw the smoke coming from the apartment and called the fire department. After the firemen left, the Philippine police arrived at the apartment, where they discovered chemicals and bomb components, a laptop computer on which Yousef had set forth the aircraft bombing plans, and other incriminating evidence. Philippine authorities arrested Murad and Shah, though Shah escaped and was not recaptured until nearly a year later. Yousef fled the country, but was captured in Pakistan the next month.

* * *

On February 21, 1996, a grand jury in the Southern District of New York filed a twenty-count superseding indictment against the defendants and others. Counts One through Eleven charged Yousef and Ismoil with various offenses arising from their participation in the February 26, 1993 bombing of the World Trade Center. Counts Twelve through Nineteen charged Yousef, Murad, and Shah with various crimes relating to their conspiracy to bomb United States airliners in Southeast Asia in 1994 and 1995.3

The trial of Yousef, Murad, and Shah on the airline bombing charges began on May 29, 1996 and ended on September 5, 1996, when the jury found all three defendants guilty on all counts. Yousef and Ismoil's trial on charges relating to the World Trade Center bombing began on July 15, 1997 and concluded on November 12, 1997, when the jury found both defendants guilty on all counts.

Yousef was sentenced for both convictions on January 8, 1998. For the World Trade Center convictions he was sentenced principally to a total of 240 years of imprisonment: 180 years on Counts One through Eight, plus two 30-year terms on Counts Nine and Ten for violations of 18 U.S.C. § 924(c),4 to be served consecutively to the 180-year sentence and to each other. For the airline bombing convictions, Yousef was sentenced principally to a term of life imprisonment, to be served consecutively to his 240-year sentence for the World Trade Center bombing.

On April 3, 1998, Ismoil was sentenced principally to 180 years of imprisonment on Counts One through Six, Eight, and Eleven. Additionally, Ismoil was sentenced to two 30-year terms on Counts Nine and Ten to be served consecutively to each other and to the 180-year sentence, for a total of 240 years of imprisonment.

On May 15, 1998, Murad was sentenced principally to life imprisonment on Counts Twelve through Sixteen, plus two 30-year sentences for Counts Seventeen and Eighteen, all to be served consecutively.

I. Preparation for Airline Bombing Conspiracy

In August 1994, after the bombing of the World Trade Center, and his flight from the United States, Yousef traveled to Manila under an alias. By September, Yousef had developed an elaborate plan to bomb a dozen United States-flag aircraft and recorded that plan on his laptop computer. According to the plan, five individuals would plant bombs aboard twelve United States-flag aircraft operating on routes in Southeast Asia. Each conspirator would board an airliner in Southeast Asia, assemble a bomb on board the plane, and leave the aircraft at its first stop. The timebombs would detonate during the second leg of each of the targeted flights. Eleven of the twelve flights were ultimately destined for cities in the United States. Each of the targeted aircraft was capable of carrying up to 280 people.

After Yousef had formulated his airline bombing plan, he began to acquire the information and the ingredients necessary to carry it out. Yousef compiled detailed flight data on the twelve aircraft, including their departing times, flight numbers, flight durations and aircraft types, and transferred this information to his laptop computer. In early November 1994, Yousef placed a large order for chemicals and equipment in Manila, and, during the next two months, he and his co-conspirators performed several tests in preparation for the aircraft bombings. On December 1, 1994, Yousef and Shah conducted a test by placing a bomb under a patron's seat at the Greenbelt movie theater in Manila. At 10:30 p.m., the bomb exploded, injuring several people. Ten days later, on December 11, Yousef planted another test bomb under the seat of a passenger on a Philippine Airlines jet flying from Manila to Cebu (another city in the Philippines) and then to Japan. Yousef disembarked from the plane in Cebu. Two hours after the aircraft departed from Cebu, the bomb exploded, killing one Japanese passenger and injuring others.

In late December, Murad traveled from the Middle East to the Philippines, and Shah, who had left the Philippines immediately after the movie theater bombing, returned to Manila under an assumed name. Thus, by January 1995, the conspirators were assembled in Manila and ready to carry out their attack on twelve United States flag aircraft. But for a fire in the defendants' apartment in Manila, the plan might have succeeded.

On January 6, 1995, Yousef was in the Manila apartment burning chemicals that he and Murad had obtained to construct the aircraft bombs. At approximately 10:45 p.m., an apartment security guard noticed Yousef and Murad running down the stairs carrying their shoes. After Yousef and Murad went back to their apartment, their neighbors observed smoke coming from the window of their apartment and alerted apartment security. The security guard proceeded to the apartment to investigate, finding Murad and Yousef by their front door. The defendants denied that there was a fire in their apartment and would not permit the guard inside to inspect. The guard then returned to his post to contact the police.

After trying to contact the local police to no avail, the security guard returned to the apartment to investigate further. At this point, Murad let the security guard into the apartment, while Yousef waited outside. The guard observed a salt-like substance and burn marks in the area of the sink. Murad told the guard that they had been mixing ingredients to make firecrackers for a late New Year's celebration. The guard then went back to his station and had the receptionist call the fire department. In the meantime, Yousef left the apartment complex.

After the firefighters had come and gone, police arrived at the apartment. The security guard let the police into the apartment, where they found, among other things, cartons of chemicals, Casio timers, wrist watches with wires attached, and juice bottles with unknown substances inside. The officers then waited in the lobby of the apartment complex for Murad and Yousef to return. Murad returned and, after he was approached by one of the officers, tried to flee. The police quickly apprehended him and took him into custody.

While in custody at the apartment, Murad called Yousef's cellular telephone. Almost immediately after receiving this call, Yousef made arrangements to leave the country. He purchased a plane ticket to Singapore and fled the Philippines approximately five hours after Murad's call.

While Yousef was in flight from the country, the police continued to search the Manila apartment. In addition to the bomb-related materials, police discovered photographs of Pope John Paul II, Bibles, and confession materials; the Pope was scheduled to visit Manila on January 12, 1995, just five days later. The police collected some of the items they found in the apartment and then applied for a warrant to search the apartment.5 A Philippine judge issued a search warrant, and members of the local police explosive ordnance disposal unit ("EOD") conducted a thorough investigation of the apartment. They videotaped the contents of the apartment and seized several items, including Yousef's laptop computer, papers and books with instructions for making bombs, a chemical dictionary, and many chemicals and mechanical components which could have been used to make bombs. On Yousef's laptop computer, the police found various files including a letter claiming responsibility for future attacks against American targets by the "Fifth Division of the Liberation Army."

On January 11, 1995, several days after their search of the Manila apartment, Manila police arrested Shah. Police apprehended Shah after they determined that a pager called by Yousef following Murad's arrest was registered in the name of Shah's girlfriend. Shah escaped from custody one week later, only to be recaptured on December 11, 1995 in Malaysia by Malaysian police. Shah was then delivered to the custody of the United States, where he agreed to speak to Federal Bureau of Investigation ("FBI") agents after he signed a written waiver of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In early February 1995, the United States Embassy in Islamabad, Pakistan received a tip that Yousef was somewhere in Islamabad. On February 7, 1995, Pakistani officials, together with a special agent from the United States Department of State, arrested Yousef at a guest house in Islamabad. The next day, agents from the FBI and the United States Secret Service arrived from the United States, took Yousef into custody, and transported him back to the United States. On the plane, Yousef was informed of the charges against him pertaining to the World Trade Center bombing and advised of his rights. Without the use or need of an interpreter, he waived his Miranda rights and made an extensive confession about the World Trade Center bombing plot.6

Philippine authorities turned Murad over to FBI agents in Manila on April 12, 1995. During the plane ride to the United States, Murad was read his Miranda rights twice and given written copies of the waiver in both English and Arabic. Murad indicated that he understood his rights and waived them in writing. He then agreed to speak to the FBI agents on the airplane without an interpreter. Murad told the agents that his part in the aircraft bombing scheme was to board a United Airlines flight in Singapore with its first stop in Hong Kong and to plant a bomb onboard the plane. After arriving in Hong Kong, Murad was to take a different flight back to Singapore, planting a bomb aboard that plane as well. Murad told the agents that he expected the resulting explosion to tear a hole in the aircraft, causing it to crash in the Pacific Ocean. He also asserted his belief that co-conspirators would bomb other flights. Murad stated that the goal of the attacks was to "make the American people and the American government suffer for their support of Israel." Direct Testimony of Francis J. Pellegrino, Aug. 5, 1996, Airline Bombing Trial Transcript ("ATr."), at 3501.

Murad described the explosive device components of the bombs, which matched items seized at the Manila apartment he shared with Yousef. Murad stated that he had been told that the Philippine Airlines bombing of December 11, 1994 was a testrun to ensure that the chemicals and timing device worked correctly.

On February 21, 1996, a grand jury in the Southern District of New York indicted Yousef, Murad, and Shah for various crimes relating to their conspiracy to bomb United States airliners in Southeast Asia in 1994 and 1995. Counts Twelve through Twenty of the original indictment (S12 93 Cr. 180(KTD)) were renumbered from One to Nine for use in the airline bombing trial.

In Count Twelve, the defendants were indicted for violating 18 U.S.C. § 3717 by conspiring to violate 18 U.S.C. § 32(a)(1) by destroying aircraft in the special administrative jurisdiction of the United States and civil aircraft operated in foreign air commerce; and by conspiring to violate 18 U.S.C. § 32(a)(2) by placing bombs on board such aircraft, thereby endangering the aircraft's safety.8

Count Thirteen charged the defendants with violating 18 U.S.C. § 32(a)(1) and (7) by attempting to destroy an aircraft within the special aircraft jurisdiction of the United States and civil aircraft operated in foreign air commerce.9 Count Fourteen charged the defendants with violating 18 U.S.C. § 32(a)(2) and (7) by attempting to place a bomb on such aircraft and endangering the safety of such aircraft.

In Count Fifteen, the defendants were charged with violating 18 U.S.C. § 2332(b) and (d) by conspiring to kill United States nationals while they were located outside of the United States.10 In Count Sixteen, the defendants were charged with violating 18 U.S.C. § 2332a by conspiring to use a weapon of mass destruction outside the United States against United States nationals.11

The defendants were charged in Counts Seventeen and Eighteen with violating 18 U.S.C. §§ 924(c) and 2 by using and carrying a destructive device during and in connection with a violent crime.12 The violent crime underlying Count Seventeen was the conspiracy to bomb aircraft charged in Count Twelve. In Count Eighteen, the underlying violent crime was the conspiracy to kill United States nationals charged in Count Fifteen.

Yousef alone was charged in Count Nineteen with violating 18 U.S.C. §§ 32(b)(3), 34, and 2 for placing a bomb on a civil aircraft registered in a foreign country while that aircraft was in service, to wit, Yousef's bombing of the Philippine airlines flight that killed one passenger.13

Shah alone was charged in Count Twenty with violating 18 U.S.C. § 751(a) by attempting to escape from the Metropolitan Correctional Center in New York on February 6, 1996.14

Prior to trial, the defendants moved to suppress their confessions, but the District Court denied those motions.

The trial of Yousef, Murad, and Shah on the airline bombing charges began on May 29, 1996 and ended on September 5, 1996, when the jury found all three defendants guilty on all counts. The District Court sentenced Yousef principally to a term of life imprisonment on all eight counts. The District Court sentenced Murad principally to life imprisonment on Counts Twelve through Sixteen, plus two 30-year sentences for Counts Seventeen and Eighteen, all to be served consecutively.

On appeal, defendants-appellants Yousef and Murad attack their convictions and sentences, raising a number of issues.15

I. Assertion of Extraterritorial Jurisdiction Over Defendants Yousef and Murad16

Yousef contends that the Government exceeded its authority by trying him in the United States for his conduct in the aircraft bombing case. In particular, he asserts that the charges alleged in Counts Twelve, Thirteen, Fourteen and Nineteen should be dismissed because 18 U.S.C. § 32 cannot be applied to conduct outside the United States. He further claims that he cannot be convicted of the charge set forth in Count Nineteen because he was not "found" within the United States as required by 18 U.S.C. § 32(b). Yousef also contends that his prosecution violates customary international law limiting a nation's jurisdiction to proscribe conduct outside its borders and is contrary to the Due Process Clause of the Fifth Amendment of the Constitution.17 In addition, Yousef asserts that the District Court violated the venue provisions of the Constitution and Federal Rule of Criminal Procedure 18. Finally, Yousef argues in his reply brief that his indictment and conviction for the airline bombing conspiracy violated the extradition treaty between the United States and Pakistan. See United Kingdom Extradition, Dec. 22, 1931, U.S.-U.K., 1931 U.S.T. LEXIS 60, 12 Bevans 482.

A. Jurisdiction to Prosecute Defendants' Extraterritorial Conduct Under Federal Law

It is beyond doubt that, as a general proposition, Congress has the authority to "enforce its laws beyond the territorial boundaries of the United States." EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). Although there is a presumption that Congress does not intend a statute to apply to conduct outside the territorial jurisdiction of the United States, see Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949), that presumption can be overcome when Congress clearly expresses its intent to do so, id.; Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993); United States v. Gatlin, 216 F.3d 207, 211 (2d Cir.2000). As long as Congress has indicated its intent to reach such conduct, a United States court is "bound to follow the Congressional direction unless this would violate the due process clause of the Fifth Amendment." United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983) (internal quotation marks omitted). Moreover, the presumption against extraterritorial application does not apply to those "criminal statutes which are, as a class, not logically dependent on their locality for the Government's jurisdiction." United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922).

In determining whether Congress intended a federal statute to apply to overseas conduct, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) (internal quotation marks omitted). Nonetheless, in fashioning the reach of our criminal law, "Congress is not bound by international law." Pinto-Mejia, 720 F.2d at 259. "If it chooses to do so, it may legislate with respect to conduct outside the United States, in excess of the limits posed by international law." Id.; see also United States v. Quemener, 789 F.2d 145, 156 (2d Cir.1986); United States v. Allen, 760 F.2d 447, 454 (2d Cir.1985).

Counts Thirteen and Fourteen charged Yousef, Murad and Shah with violating 18 U.S.C. § 32(a). Count Thirteen alleged that they attempted to damage aircraft in the special aircraft jurisdiction of the United States and civil aircraft operated in foreign air commerce, in violation of § 32(a)(1) and (7). Count Fourteen charged them with violating § 32(a)(2) and (7) by attempting to place a bomb on such aircraft in Count Fourteen.

Section 32(a)(1) prohibits damaging "any aircraft in the special aircraft jurisdiction of the United States" or "any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce." Section 32(a)(2) makes it a crime to place a destructive device on board any such aircraft if it would be likely to endanger the aircraft's safety. Section 32(a)(7) prohibits an attempt or conspiracy to do anything forbidden under § 32(a).

The text of the applicable federal statutes makes it clear that Congress intended § 32(a) to apply extraterritorially. Under 49 U.S.C. § 46501(2)(A) the "special aircraft jurisdiction of the United States" is defined to include any "civil aircraft of the United States" while that aircraft is in flight. "Civil aircraft of the United States," in turn, is defined in 49 U.S.C. § 40102(a)(17) as "an aircraft registered under Chapter 441" of Title 49, which requires registration of any United States-flag aircraft. See 49 U.S.C. §§ 44101-44103. Accordingly, § 32(a) covers any United States-flag aircraft while in flight, wherever in the world it may be. In addition, Congress defined "foreign air commerce" to cover "the transportation of passengers or property by aircraft ... between a place in the United States and a place outside the United States." 49 U.S.C. § 40102(a)(22).18

The District Court was correct to hold that the twelve aircraft targeted in the instant case fell within one or another category of craft protected by United States law. The relevant aircraft were all United States-flag aircraft targeted while in flight, and were therefore in "the special aircraft jurisdiction of the United States."