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1424

Extraterritorial Destruction of, or Violence Against a Person on Board, a Non-United States Civil Aircraft—18 U.S.C. 32(b)

Subsection (b) of section 32 implements paragraph 2 of Article 5 of the Montreal Convention which requires that each party establish jurisdiction over the offenses mentioned in Article 1, paragraphs (1)(a) (performing an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft), (b) (destroying an aircraft in service or causing damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight), or (c) (placing or causing to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight). It applies in those cases where the alleged offender is present in the nation's territory, and it does not extradite him/her. It also prohibits an attempt or conspiracy (as of April 24, 1996) to do any of the foregoing. In 1996, §  32(b) was expanded to encompass foreign aircraft where a national of the United States: (1) was on board the aircraft, or would have been on board the aircraft if it had taken off; or (2) was a perpetrator of the offense. This extraterritorial jurisdiction of 18 U.S.C. § 32(b) is comparable to that currently found in 49 U.S.C. 46502(b) (formerly 49 U.S.C.App. § 1472(n)) (aircraft piracy outside special aircraft jurisdiction of the United States), and 18 U.S.C. § 1116(c) (murder of internationally protected persons).

As with subsection (a) of section 32, the conduct proscribed by subsection (b) must be likely to endanger the aircraft's safety or to render it incapable of flight, and is punishable by a fine under title 18, U.S.C., or 20 years in prison, or both.

The extraterritorial jurisdiction of §32(b) has been upheld by the courts when the defendant was subsequently "found" in the United States. See United States v. Yousef, 927 F. Supp. 673, (S.D.N.Y. 1996); United States v. Yunis, 681 F.Supp 896 (D.D.C. 1988)(defendant subsequently acquitted on §32(b) count), aff'd, United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991). See also United States v. Rezaq, 134 F.3d 1121, 1130-33 (D.C. Cir. 1998) (government did not unlawfully manufacture jurisdictional element that defendant be "found in the United States" when it forcibly brought the defendant to the United States).

[updated August 1999] [cited in USAM 9-63.200]