U.S. v. MURILLO, NO. 15-4235

Decided: June 14, 2016

The Fourth Circuit determined the defendant’s prosecution in the United States did not contravene the Fifth Amendment’s Due Process Clause, therefore the Court affirmed the defendant’s convictions.

Defendant Edgar Javier Bello Murillo (“Bello”), a citizen of Colombia, was involved in the murder of Special Agent James Terry Watson of the Drug Enforcement Administration (“DEA”).  Agent Watson was an internationally protected person (an “IPP”) stationed in Colombia and was thereby protected by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (the “IPP Convention” or the “Convention”).  Bello was arrested in Colombia for his involvement in the murder, and on July 18, 2013, a grand jury in Alexandria, Virginia, returned an indictment against Bello and the others involved.   On August 22, 2013, the United States requested Bello’s extradition from Colombia for prosecution in the Eastern District of Virginia.   Pursuant to Colombia’s obligations under the IPP Convention, the extradition request was referred to Colombia’s Supreme Court of Justice, which granted the extradition for prosecution on Counts 1, 3, and 4.  After his first appearance in the Eastern District of Virginia on July 2, 2014, Bello sought dismissal of the three charges, invoking the “notice requirement” of the Fifth Amendment’s Due Process Clause.  The district court denied this dismissal motion, and in doing so ruled that Bello’s due process rights were not violated by prosecuting him in the United States for murder and kidnapping because exercising extraterritorial jurisdiction of these offenses is proper under the Fourth Circuit’s test set forth in United States v. Brehm.  Under Brehm, the court concluded that Bello’s prosecution was neither arbitrary nor unfair, because Bello’s offenses affected a “significant American interest,” and he had “ample reason to anticipate being prosecuted for his conduct ‘somewhere.’” United States v. Brehm, 691 F.3d 547, 622–23.  On April 16, 2015, Bello was sentenced to 440 months in prison, which he timely appealed.

On appeal, Bello’s sole claim was that his prosecution in the United States contravened the Fifth Amendment’s Due Process Clause, arguing specifically that his prosecution in the this country was fundamentally unfair because he did not know that Agent Watson was an American IPP and thus could not have foreseen prosecuted in the United States, rather than in Colombia.  However, the Court did not agree.  Citing to their opinion in Brehm, the Court explained that fair warning does not require that defendants understand that they could be subject to criminal prosecution in the Unites States so long as they could reasonably understand that their conduct was criminal and would subject them to prosecution somewhere.  Because kidnapping and murder are “self-evidently criminal,” it was not fundamentally unfair to prosecute Bello in the United States.  Absent fundamental unfairness, Bello’s Fifth Amendment due process claims fails under Brehm.

Therefore, the Fourth Circuit affirmed the judgment of the district court.

Full Opinion

Aleia M. Hornsby

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