Hostage-Taking Statute Covers Kidnapping for Ransom Abroad
Legal Sidebari
Hostage-Taking Statute Covers Kidnapping
for Ransom Abroad
July 30, 2018
In the midst of a rash of kidnappings, a U.S. citizen living in Haiti was seized and held for ransom. In
United States v. Noel, the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit) recently
upheld the conviction of one of the kidnappers under the federal hostage-taking statute. The statute
condemns “whoever, whether inside or outside the United States . . . detains . . . 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 . . .” It applies outside the U.S. if either the
offender or the victim is a U.S. citizen; the offender later travels, or is brought, to the U.S.; or the targeted
“governmental organization” is the U.S. Government.
As noted below, Noel raised several challenges on appeal. He contended that: (1) the government should
have been required to prove that he knew his victim was an American citizen; (2) Congress only intended
the statute to apply terrorist misconduct; (3) Congress lacked the constitutional authority to enact the
statute; (4) Congress did not intend the statute to apply to street crimes committed abroad by foreign
nationals; and (5) the Fifth Amendment’s Due Process Clause bars U.S. prosecution of the defendant.
Knowledge
In United States v. Noel, the defendant argued to no avail that his conviction required proof that he knew
that the victim was a U.S. national. The Supreme Court has said that, “a defendant generally must know
the facts that make his conduct fit the definition of the offense.” Nevertheless, as the Eleventh Circuit
pointed out, the general rule ordinarily does not apply to separate jurisdictional requirements, like the
hostage-taking statute’s alternative requirement that the victim be a U.S. citizen. Thus, prosecutors could
convict Noel without proving that he knew his victim was a U.S. citizen.
Terrorism
Noel argued also that Congress intended the statute to outlaw only acts of terrorism as demonstrated by
the statute’s listing of governmental organizations as target victims. As further evidence of Congress’s
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intent to confine the statute to terrorism cases, Noel noted that the statute was originally enacted under the
caption “Terrorism” in omnibus legislation. In addition, Congress has identified the hostage-taking
statute, but not the kidnapping-for-ransom statute, as one of the federal crimes of terrorism. The Eleventh
Circuit conceded that “a primary focus of the statute is on acts of terrorism,” but it held that the plain
language of the statute, which defines its scope, “encompasses the events for which Noel was convicted”
as well.
Legislative Authority
Congress enjoys only that legislative authority that can be traced back to the Constitution. Noel
contended that Congress did not have the power to make his conduct a crime because his conduct does
not fall within the reach of one of Congress’ most obvious extraterritorial prerogative, the power “[t]o
define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of
Nations.” The Eleventh Circuit found it unnecessary to address Noel’s law-of-nations argument because
of another of Congress’s constitutional powers. The Constitution grants Congress the power to enact laws
necessary and proper to carry into effect the authority it vests in the President, one of which is the
authority to make treaties. The court held that Congress’s passage of the hostage-taking statute in order to
implement the International Convention Against the Taking of Hostages constituted a valid exercise of its
constitutional authority under the Necessary and Proper Clause.
Run of the Mill Street Crimes
The Eleventh Circuit’s reference to the treaty power as the source of Congress’s authority to enact the
hostage-taking statute might suggest support for Noel’s argument that Congress did not intend to outlaw
his conduct. The Supreme Court has cautioned against overbroad application of statutes enacted to
implement a treaty. In Bond v. United States, the Court declined to apply the statute implementing the
chemical weapons treaty to a woman’s chemical assault upon her husband’s paramour. The decision in
Bond grew out of a concern over unintended federal intrusions upon the law enforcement prerogatives of
the states. On other occasions, such as in RJR Nabisco v. European Community, the Supreme Court has
expressed comparable concern over the federal government’s unintended intrusions upon the law
enforcement prerogatives of other nations within their own territory. If Noel pressed that contention,
however, the Eleventh Circuit found it insufficient for it held that the plain language of the statute covered
Noel’s conduct.
Due Process
As the Eleventh Circuit understood Noel’s argument, due process is a matter of whether the accused had
notice that a particular form of misconduct, committed outside the United States, would subject him to
prosecution in the United States. The court cited case law for the proposition that condemnation of
conduct within of a multilateral treaty, like the International Convention Against the Taking of Hostages,
to which both the United States and Haiti are parties, provides “global notice [to the citizens of any party]
that certain generally condemned acts are subject to prosecution by any party to the treaty.” Therefore, the
court observed, “[h]is own country having signed the Treaty, the global notice of the Treaty clearly
extends to Noel.”
Congressional Options
Congress remains free to confirm, reject, or modify the work of the Eleventh Circuit in United States v.
Noel by enacting clarifying amendments of the hostage-taking statute.
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Author Information
Charles Doyle
Senior Specialist in American Public Law
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