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nited States of America, Appellee, v. Alfred Erdos, Appellant
No. 72-1328
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
474 F.2d 157; 1973 U.S. App. LEXIS 11608; 24 A.L.R. Fed. 356
October 30, 1972, Argued
February 14, 1973, Decided
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the Eastern District of
Virginia, at Alexandria, Oren R. Lewis, District Judge.
DISPOSITION: Affirmed.
COUNSEL: William E. McDaniels and Aubrey M. Daniel, III, (Williams, Connolly
and Califano on brief) for Appellant.
Justin W. Williams, Assistant United States Attorney, (Brian P. Gettings,
United States Attorney, on brief) for Appellee.
JUDGES: Haynsworth, Chief Judge, Craven and Widener, Circuit Judges.
OPINIONBY: CRAVEN
OPINION: [*158] CRAVEN, Circuit Judge.
On August 30, 1971, in the American Embassy in the new Republic of
Equatorial Guinea, Alfred Erdos killed Donald Leahy. Both were American
citizens and embassy employees, with Erdos occupying the position of senior
diplomat or charge d'affair[e]s.
Returned to the United States, Erdos was tried and convicted of voluntary
manslaughter n1 in the District Court for the Eastern District of Virginia.
On appeal, the more important issues raised are whether the district court:
(1) had jurisdiction to try Erdos for a crime occurring within an American
embassy located in a foreign country; (2) erred in holding that venue lay in
the Eastern District of Virginia rather than the District [**2] [*159]
of Massachusetts where the plane bearing Erdos first landed; and (3)
improperly curtailed the cross-examination of a psychiatrist from a
psychiatric treatise. We conclude there was jurisdiction and venue, and that
the district judge's error in curtailing cross-examination was not
sufficiently prejudicial to require reversal. We have also considered the
other 13 assigned points of error and find them to be without merit.
Accordingly, the judgment below will be affirmed.
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n1 18 U.S.C. 1112 provides:
(a) Manslaughter is the unlawful killing of a human being without malice.
It is of two kinds:
Voluntary -- Upon a sudden quarrel or heat of passion.
Involuntary -- In the commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution
and circumspection, of a lawful act which might produce death.
(b) Within the special maritime and territorial jurisdiction of the United
States,
Whoever is guilty of voluntary manslaughter, shall be imprisoned not more
than ten years;
Whoever is guilty of involuntary manslaughter, shall be fined not more than
$1,000 or imprisoned not more than three years, or both.
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Jurisdiction
The district court based jurisdiction upon 18 U.S.C. 7, which provides in
part:
The term "special maritime and territorial jurisdiction of the United
States", as used in this title, includes:
.. . .
(3) Any lands reserved or acquired for the use of the United States, and
under the exclusive or concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United States by consent of the
legislature of the State in which the same shall be, for the erection of a
fort, magazine, arsenal, dockyard, or other needful building. [Emphasis
added].
The power of Congress to lawfully proscribe the killing of an American
citizen by another American citizen within a diplomatic compound located in
a foreign country is, we think, beyond question. U.S. Const. art. III, 2;
United States v. Flores, 289 U.S. 137, 146-47, 77 L. Ed. 1086, 53 S. Ct. 580
(1933); United States v. Bowman, 260 U.S. 94, 96-98, 67 L. Ed. 149, 43 S.
Ct. 39 (1922). The problem is not one of power but of intention, i.e.,
statutory construction. Erdos contends that the district court lacked
jurisdiction [**4] to try him for an offense committed outside theterritorial limits of the United States because Congress has not exercised
its constitutional power so as to extend American criminal court
jurisdiction to the United States Embassy in Equatorial Guinea. It is urged
that 18 U.S.C. 7(3) must be read to apply only to areas within the
geographical boundaries of the United States and may not be given
extraterritorial effect.
The embassy in question is leased by the United States from a private
citizen of the new Republic of Equatorial Guinea. This lease agreement does
not itself defeat criminal jurisdiction, however, since fee simple
"ownership" of the property by the United States is not a prerequisite to
such jurisdiction. As the court in United States v. Archer, 51 F. Supp. 708
(S.D. Cal. 1943), said at 709:
A consulate is, ordinarily, a building owned by the Government of the United
States. And although it be not owned by the United States, it is a part of
the territory of the United States of America.
In Bowman, supra, 260 U.S. at 98-99, both public and private ships on the
high seas were characterized [**5] as "constructively" a part of the
territory of the United States. Subsection (3) is not framed in the language
of conveyancing. The test, as to property within or without the United
States, is one of practical usage and dominion exercised over the embassy or
other federal establishment by the United States government.
The much harder question is whether the third phrase of 7(3) (dealing with
places acquired by the federal government with the consent of the states and
thus presumably within the territorial boundaries of the United States)
modifies and limits the more general coverage of the preceding two phrases.
The meaning is not perfectly clear. Nor is the legislative history. n2 Such
an interpretation is not implausible, and, indeed, it is possible that when
the statute was enacted the attention of the Congress was not in the
slightest focused [*160] on extraterritorial jurisdiction. But if so, why
the broad general language of phrases one and two -- wholly unnecessary to
implement the establishment of forts, dockyards and other needful buildings
within the states plainly accomplished by phrase three?
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n2 See e.g., 42 Cong. Rec. 590, 1186 (1909) (remarks of Senator Heyburn and
Congressman Sherley).
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Where the power of the Congress is clear, and the language of exercise is
broad, we perceive no duty to construe a statute narrowly. The first two
phrases connected by the conjunctive "and" relate to and modify each other.
The result is to create a jurisdictional category: lands reserved or
acquired for the use of the United States and under its exclu
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