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United States v. Dizdar

decided: July 27, 1978.

UNITED STATES OF AMERICA, APPELLEE,
v.
VLADIMIR DIZDAR, JOZO BREKALO AND MARIJAN BUCONJIC, DEFENDANTS-APPELLANTS .



Appeal from judgments entered in the Southern District of New York after a jury trial before Thomas P. Griesa, Judge, convicting all appellants, advocates of Croatian independence, of conspiracy to seize and confine a foreign official, 18 U.S.C. § 1201(c), appellant Dizdar of assaulting a foreign official with a deadly or dangerous weapon, 18 U.S.C.§ 112, and appellant Buconjic of assaulting a foreign official.

Before Feinberg, Mansfield, and Oakes, Circuit Judges.

Author: Mansfield

Following an increase in acts of violence in various countries against foreign diplomats and representatives, Congress in 1972 passed legislation extending the protection of our federal criminal laws to designated categories of foreign officials, 18 U.S.C. §§ 1201, 1116(b), S.Rep. No. 92-1105, 92nd Cong.2nd Sess. (1972), reprinted in (1972) U.S.Code Cong. & Admin.News, p. 4316. The present appeal raises issues with respect to the application of those laws to acts committed in June 1977 by appellants Dizdar, Brekalo, and Buconjic on the premises of the Yugoslavian Mission to the United Nations (the "Mission") in New York City.

After a fourteen-day trial in the Southern District of New York before Judge Thomas P. Griesa and a jury, appellants were convicted of conspiracy to seize and confine a foreign official, 18 U.S.C. § 1201(c). In addition, Dizdar was convicted of assaulting a foreign official with a deadly or dangerous weapon, 18 U.S.C. § 112, and Buconjic was convicted of assaulting a foreign official. Finding no reversible error, we affirm.

On June 14, 1977, at approximately 2:20 p.m., appellants, advocates of Croatian independence, forcibly entered the Mission premises, shooting and wounding seriously one member of the Mission staff in the process. All three men carried loaded revolvers into the Mission, along with a large quantity of ammunition, a supply of leaflets entitled Freedom for Croatia, a set of walkie-talkies, a portable radio, twenty-two packages of cigarettes, and three coils of rope. The staff of the Mission, exclusive of family members, consisted of twelve diplomatic officials and twenty-nine employees, all but one of whom were foreign nationals.

Once they gained entry to the Mission, appellants barricaded themselves in a room, kept the police at bay by pretending that they were holding a woman hostage, and made several "demands," including (1) that they receive immediate media coverage, (2) that their leaflet be transmitted to Kurt Waldheim, Secretary General of the United Nations, and (3) that a photograph be taken of the Croatian and American flags which the men had hung from a window in the Mission.

When these demands were substantially met, appellants surrendered to New York City police. They were interrogated, and all three made statements in which they admitted that they had planned to seize staff employees of the Mission and hold them as hostages. Buconjic added that he planned to use the rope to tie up prisoners. All three defendants testified at trial, repudiating their confessions insofar as they indicated that the men had intended to take hostages.

Discussion

Appellants raise numerous claims of error. Perhaps the most serious is their contention that the district court erred in denying their motion for a directed verdict of acquittal on the ground that the Government had failed to prove that they had violated 18 U.S.C. § 1201, which prohibits the seizure, confinement, or abduction of a "foreign official".*fn1 In pertinent part, 18 U.S.C. § 1116(b)(3)(B) defines a "foreign official" as

"(B) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee."

Thus, the burden was upon the Government to prove that those whom the defendants had conspired to seize and to detain as hostages were "persons of a foreign nationality who (had been) duly notified to the United States" as officers or employees of their government. This the Government sought to do by introducing the testimony of Sol Kuttner, a State Department adviser attached to the United States Mission to the United Nations, who is responsible for insuring "that the obligations that have been entered into by the United States in the way of treaties and agreements with missions to the United Nations and the United Nations Secretariat are observed." He testified that he was responsible for overseeing the procedure for the notification to the United States of foreign officials connected with the United Nations as described in 18 U.S.C. § 1116(b). He outlined the procedure as follows:

"When a member mission to the United Nations arrives, his mission has the obligation of submitting his name on an appointments paper to the Secretary General of the United Nations.

The Secretary General has his chief of protocol submit the name on a list which is issued once every two weeks to the United States Mission to the United Nations. We in turn submit that list to the Department of State in Washington, and that serves as the notification that is required . . . "

Kuttner testified that on June 14, 1977, when appellants seized the Mission, at least 12 officers and 29 staff members of the Yugoslavian Mission had been "duly notified" to the United States as foreign officials, including the Yugoslavian Ambassador to the United Nations, Jaksa Petric, and the staff member who had been wounded, ...


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