statutes under which mr bello has been convicted have never been applied to a street crime i e a crime where that was committed without a specific awareness of the i p p status of the victim except it's just on that issue maybe it's your whole issue but i'm just trying to wonder why that's different from it if i'm assaulted on the street  a street citizen and it later turns out to be no it's to the assault that i was a federal judge acknowledged federal crime anyway doesn't or if somebody was rob a bank and it turns out the banks insured by the the murder and the assault in this case kidnapping and that murder and it seems to me if you kidnapped and murdered a federal agent united states  didn't know it he still committed a federal crime doesn't your honor with respect the answer to your question is both yes and no in the united states the answer would be yes and the government is propounded to fuel a case to that effect philo is not an examination of d had he had diplomatic rentals and in the country of colombia but that's the very point of this appeal your honor there's a very substantial body of law spanning a number of circuits that in order to impose extra territorial criminal jurisdiction overseas for overseas conduct there has to be a satisfaction of due process barring a certain process that's a general what is your argument that he didn't happen notice correct of what of the fact that his conduct could implicate u s interests there is simply is not a single case in any circuit that holds an individual who acts overseas oberlin vs to any so he can go  violation and so the only question in this case he knows it's wrong he knows he's committing a crime he just doesn't know that the person who is committing the crime against happens to be in a system that a ship and that person  so we because that's our american interest we prosecute and they extradite now i don't understand what the due process problem is it's a lot you're saying it has to be the lack of notice that this was an american and and that's the that's the limit of your argument because he had notice of every other os that it made a crime he doesn't have a due process right to be in a particular court your honor he has to be prosecuted somewhere the author and it's a fine decision sir and i'm going to do without the specifics of your decision in just one second the trial court rightfully looked abram let's start two conditions american interests are safe need to get significantly affected in the circumstances are such that it was reasonable for the defendant to expect to be prosecuted somewhere which of those elements that we set out in broome are you arguing are not met the second being the fairness is not met here the land is not reasonable for him to expect that he would be prosecuted somewhere that is not in my mind reading i'm reading to you from the opinion ma'am i would i would read back to the very last you are i guess at ok just if you could just answer my question about which of those factors you argue are not met here you are saying that it was not reasonable for the defendant to expect to be prosecuted somewhere it was of course reasonable for the defendant to expect to be prosecuted somewhere he committed cold water did he affect it that murder affect significant american interests certainly the point is made that it was not fair to to subject him to american jurisdiction the last line of the brehm cases but notice that the employment contract of mr brown which specifically stated he would be subject to the criminal law as a united states as a person accompanying u s troops overseas served as notice such as to  be permitted to intentionally murder and i p p murder presupposes an intent to kill so clearly intentional a first refers to the to the targeting of the i p p you had to know that he was an i that were not the point of the convention it would have said in an intentionally to kill and i think the same argument that everybody made respect to the killing of federal agent in the united states or iraq in a federal bank it also is intentionally rob a bank  insured by the federal government we've held routinely that fact if the conduct is wrong in it before and itself back that didn't happen to be a federal bank or federal person that would be insulted it's not something that the perpetrator had to know i'm i'm not familiar perhaps with the entire body of law that addresses that fiola is a case that talks about a statutory interpretation this appeal is a matter of a due process protection t statutory interpretation you know that your due process argument is a lack of notice that he is the u s out of shape and ratz the only lack of notice because he knows he's going to be prosecuted for the crime he knows he's going to be in some court he knows he's imp own he would be risk it would be strict liability but there are commanders on and on the fact that you read the united nations treaty differ the way we similar statutes states you're saying he has to know that the person is international  mens rea requirement and a statute is imputed to all the elements of the statute unless the statute makes clear that that's not the case intentional applies to the murder and of the i p p and the in the united nations convention but the take home point you honour's is that not a single court anywhere in any circuit as ever found the imposition of overseas criminal jurisdiction to be fair and a case where there was not either actual notice such as mr brehm had because he had a another contractor on the base he would he had noticed because his employment contract with the high court said you shall be subject to us laws but there is not a case anywhere that that it holds it to be this attached to the floor of the the case law is that he needs to be i have a reasonable awareness that he can be hailed into a us court his conduct needs to be reasonable reasonable prosecuted anywhere it was inherently inherently criminal this would be the first instance of such a finding stealing is inherently criminal we're talking about its destruction limited the protection of internationally protected person internationally protected person seems to me it's fair to be a matter of fact you know if you really want to get down to it i bet you he's being treated much better in the united states courts in the united states jail than he would be in colombia or colombia  person become anything other than a family if the person who is murdering him has to know he or she is intellectually internationally protected person you're out of this is a terrorism you convention and it's a terrorism statute terrorism is a deliberate part crime for political when you have to select the person because of his or her from official status and sort of where this is going to go stealing is inherently criminal say some labor in  steals from a nondescript warehouse a bunch of concrete and rebar i'm going it's to him it was owned by the u s embassy they were going to build a market in the fact that it requires harm an internationally protected person that's the statute drawn up but the same requirement but the same requirement of due process applies to any statute but we're this isn't talking about we're only talking about internationally protecting people and if you want to create a parade of horribles think about where your argument where your analysis takes it means that someone in colombia could murder the secretary of state unknowingly in that would not affect an american interest it would certainly affect an american interest but if the shooter had no idea it was a secretary of state it's a colombian matter not an american matter i don't think the american government would put up with that well that's this is not the american government does it of course it's our sovereignty but you're arguing that under our sovereignty which is governed by due process we can't do it and the answer is we're being you're applying american law american constitutional law and i suggest to you that we can go and protect our interests around the world when they're issue that he has to know he's killing an american attache and if he didn't know that he can't be hailed into an american court right your argument every every case cited by either side here involved conduct that was reasonably makes us indignant when you kill the secretary of state if the secretary of state is murdered anywhere in the world i can tell you the f b i is going hunt the person down and bring in the united states possibly iran of this case should not turn on in indignation morning your honor isn't it please the court ross goldman the united states this court explained in brown that the extraterritorial application of a federal criminal statute will satisfy due process if the prosecution is not arbitrary and if it is  fact did hold in brant explained what fairness requires and as importantly it explained what fairness does not require under the due process clause what fairness requires that the defendant know by the nature of his conduct that what he has done is criminal and that he would be subject prosecution somewhere from rejects the notion advanced by mr bello that due process requires the further step that the defendant know that he be subject to prosecution in the united states that standard itself is and so does mr bello take special agent watson as he found him an internationally protected person which subjects him to prosecution in the united states consistent with the due process cause this court need hold no more in order to affirm then as an officer which involved the sale of weapons to the park knowing it would be used to harm united states interests which the second circuit said were self evidently criminal acts this court after block quoting that standard said that mr brehm should have similarly understood  his crime stabbing someone and causing serious injury injury is a self evidently criminal act and then the court said that the hope that is all the more so and true in light of the employment contract that formulation all the more so to suggest something that's extra that is not necessary to satisfy due process so perhaps the prosecution in brown had this added layer of fairness but it was an unnecessary layer of fairness the prosecution in brum was fair because mr brand new by the nature of his conduct that he was committing a holder and then it lists five subcategories of enumerated crimes however clear it may be in the united states that murder when you say murder you mean and intent with an intent element this is an international document and it may not be as clear  all of the foreign terrorist fictions around the world that are signatories to this convention that not only murder but all the other a numerate of crimes carry an intent element and we see nothing in the convention that suggests that a defendant need know that his victim is an internationally protected person but rather that the convention applies when the defendant commits one of these enumerated crimes and when the victim is an internationally protected person of you can just continue on but i cut you off a little bit but you've been through the red light i'm happy for the it was your your heart this case should not turn on the extent to which the crime creates indignation as i said before bad facts when our back don't take that moment my observation my observation is an exercise of sovereignty i mean we decide that for instance we don't want the outflow of money  or we don't want somebody to come in who has contraband or disease or organic material we don't need to process at orders to take care that it's an act of sovereignty here our sovereignty is extended through the internationally protected persons our passengers our attachs these are people who through the exercise of our sovereignty we want to protect and choose to protect and the question is does that violate due process we always subject ourselves to  and that comes down in this case to whether there's notice notice of the status of the person because you don't have any complaint about a statute such as this protecting the american interest your observation in this that mr bellows should have known to be subject to prosecution somewhere it's dictum it was not necessary to the finding in bram bram stood fundamentally for the notice that was constituted by the employment contract that specified would be subject to us law every case that is is is address the issue has required either actual or implicit notice outcasts are which to which brehm looked did  the prosecution somewhere language but it followed it to senses later by specifying the mistrial counsellor who specifically plotting to kill american soldiers every case has required at least conduct that is reasonably foreseeable is impacting the united states interest and the the ninth circuit in the waskow the baskets velasco case which is cited by the government specifically dealt with the assassination of the agents overseas and said that there would not be jurisdiction if the if if the shooter if the assassin and thought that they were random tourists that is exactly what we have here so at least one circuit sees the point that mr bell was trying to make but diplomatic credentials he was credentialed by the government of colombia he was a diplomat he was an i p p but consider where this case can take us and i don't me understand again why you think that he ola helps you the mayor and philo was the killing of a person and knowledge that the person was a federal officer was not required and that is the argument that i was suggesting could be applied to the international stature to impute duncan is asking you is we're talking about a fairness which you're reading into the due process clause the notion that he has to have noticed that the person is an attache and here where dressing  has the same structure you kill a federal officer and it's a crime in the defendant comes and says i didn't know he was a federal officer and that's a same argument that mr warner  didn't just use the word due process that's too broad a term covers to brought a tear to your problem is notice that he was a federal agent correct or in other words your argument is that the old of does not govern a statute which tries to reach into colombia and say even though you kill you have to also know he's a federal agent your honor let me try to illustrate this with an example the district court says that you have an application that is not arbitrary if you have a u s interest and it's not it's not unfair if the crime was inherently criminal consider where that takes us stealing is criminal somebody steals construction supplies at the valves they belong to the embassy of the individual as an internationally protected person what is the point of what is the point of that language if the person who has who is committing a crime has to know it when that is what what does the reach what does this reach in the perhaps a better high would be one in which you think your definition of notice notice is you understand it doesn't you are if you look at the cases where they have found notice it's attacking a u s army base it's trying to tell us that it's not what we're dealing with we're talking about the protection of international protected people so give me an example you need to give me an example that loosely approximates these facts a cab driver picks up some someone in a military uniform your honor i believe you're making my point if i believe  a question of fact but if notice exists if the conduct of the use is reasonably foreseeable as of as affecting or harming the us center so if if the victim is wearing a u s army uniform that test is met reasonably foreseeable that this was an american government official all right we've let you go on a little while here so thank you very much thank you i notice you are court appointed yes and i i do want to recognize your service on