'Extraterritorial' factor in the vacated murder convictions

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WESLACO – Zeta cartel members who killed a federal agent in 2011 no longer have murder convictions. They're still facing other charges, but many are concerned about the message the appellate court decision is sending.

A federal statute used to prosecute the defendants by the Department of Justice lacks clarity. An appellate court had to decide what that law actually means based on where the shooting happened.

An opinion was filed by Senior Circuit Judge Stephen Williams with the United States Court of Appeals for the District of Columbia. They determined "the defendants are correct about § 1114, which has a purely domestic scope."

The court decided to vacate the murder convictions on January 21, 2020 based largely on the "extraterritorial" factor. ICE Agent Jaime Zapata and Victor Avila were attacked on a Mexican highway near San Luis Potosi on February 2011. Zapata died in the shooting.

U.S. prosecutors argued that "Congress intended the statute to apply extraterritorially." The appellate court needed to figure out if something that was not explicitly written in the statute should be considered. Their decision was unexpected.

"Personally, I was a little bit surprised," said Professor Geoffrey Corn, a professor at South Texas College of Law in Houston. He is concerned with the message this sends to agents working outside the U.S. and to those who seek to harm them. "Well, I mean what it does is it tells the Department of Justice that if an American official is killed abroad, murdered abroad, you cannot use this statutory provision as a basis to prosecute the individual," said Corn.

Prosecutors argued the court could have ruled that the intention behind the statute applies to territories outside of the U.S. as was determined in United States v. Al-Imam, the Benghazi attack that killed four Americans.

The government attorneys can appeal this decision with the Supreme Court. They have another option, though. "The easiest solution now going forward would be to get Congress to amend the statute if that's really what it meant," said Corn.

In future cases, the government is not without other tools. Corn explained, "There are a lot of American laws that apply extraterritorially and give the government a lot of power to prosecute people engaged in conduct outside the United States."

The surviving agent of that 2011 attack and the family of the agent who died are asking the government not to give up and Congress to act.

One of the appointed defendant attorneys spoke to CHANNEL 5 NEWS. Matthew Kaplan represents Jose Emanuel Garcia Sota. Kaplan called the agent's death a tragedy. While he doesn't say his client is guilty, a jury determined he was. Kaplan said this case was different from the Benghazi attack because the cartel members didn't know they were targeting American federal agents. The surviving agent, Victor Avila, said they identified themselves during the attack, but there was a lot of commotion during the brief, yet fatal confrontation.

The defendants are set to be resentenced on the remaining charges – attempted murder of an internationally protected person and carrying a firearm during a violent crime resulting in death – each with a maximum penalty of up 35 years in prison.


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