Traore v. State

Eldridge, J., delivered the opinion of the Court. From 1790 to 1978 this country granted broad criminal and civil immunity for any foreign ambassador or minister and his domestic servants, 22 U.S.C. § 252 (1976). 1 Effective December 29, 1978, Congress repealed this statute and allowed the Vienna Convention on Diplomatic Relations and ⁵⁸⁷ Optional Protocol on Disputes ("Vienna Convention”) to govern the matter of diplomatic immunity. 2 The Vienna Convention provides a much narrower scope for diplomatic immunity, including, inter alia, the provision that service staff employees have immunity only for acts performed in the course of their official duties. 3 The issue in the instant case is whether an embassy employee may be criminally prosecuted subsequent to the 1978 change in federal law for an act conceded to be outside the scope of his employment but which act occurred while the sweeping diplomatic immunity provisions of the now-repealed 22 U.S.C. § 252 were still in effect. There is no factual dispute in this case. The petitioner, Sekou Soumana Traore, was indicted on December 13,1978, and again on May 23, 1979, on charges of child abuse and assault and battery arising out of a single incident occurring in October 1978.

These indictments were consolidated. Traore moved to dismiss the charges on the ground that his employment with the French Embassy made him immune from prosecution. A letter from the State Department dated April 30, 1979, informed the court that Traore had been employed by the embassy at all times in question, and that he was entitled to diplomatic immunity until December 29, 1978. The letter went on to indicate that the change in the diplomatic immunity law, effective December 29, 1978, rendered Traore subject to the jurisdiction of the court for an act occurring prior to December 29, 1978.

Despite the State ⁵⁸⁸ Department letter, the Circuit Court for Prince George’s County granted Traore’s motion to dismiss based upon diplomatic immunity. The State appealed to the Court of Special Appeals, contending that all questions of diplomatic immunity were political questions, and thus the circuit court had erred in granting Traore’s motion when the Department of State had indicated he was subject to prosecution. In an unreported opinion, the Court of Special Appeals adopted this approach. The intermediate appellate court held that the State Department letter was controlling and that the circuit court had no authority to deviate from the State Department’s conclusion.

The order dismissing the charges against Traore was vacated, the indictment reinstated and the case remanded for further proceedings. Traore petitioned this Court for a writ of certiorari, presenting the following question: "Did the trial judge properly refuse to apply the diplomatic immunity clause of the Diplomatic Relations Act retroactively?” The defendant, in addition to challenging the holding of the Court of Special 'Appeals, advances two arguments in support of the trial court’s action. First, he maintains that Congress did not intend that the 1978 statute have any retroactive effect. Second, he argues that a construction of the statute, permitting subsequent prosecution for acts that could not have been prosecuted when committed, would violate the prohibition against bills of attainder and ex post facto laws contained in the United States Constitution, Article I, § 9, cl. 3.

In light of our disposition of the case, however, it will be unnecessary to address the defendant’s constitutional arguments. (1) First we must consider whether the Court of Special Appeals correctly held that the State Department letter of April 30,1979, is determinative of the issue in this case. The pertinent portion of the letter, written by the Deputy Chief of Protocol, states: ⁵⁸⁹ "From June 16, 1976, to December 29, 1978, Mr. Traore was immune from criminal, civil and administrative jurisdiction under the then existing statutory immunity provisions, 22 U.S.C. 252-254. On December 29,1978, the provisions of the Diplomatic Relations Act (PL 95-393) became operative, repealing the statutory provisions cited above and establishing the Vienna Convention on Diplomatic Relations as U.S. law respecting the immunity of mission members.

Thus, in view of his assignment as a 'service staff member on December 29, 1978, Mr. Traore now enjoys immunity only in respect of acts performed in the course of his duties in accordance with the provisions of Article 37(3) of the Vienna Convention. Also, respecting any criminal act, or other act giving rise to legal liability, occurring during the period when Mr. Traore enjoyed full immunity, he enjoys immunity from jurisdiction at this time only to the extent such act qualified as one arising in the course of performance of his official functions.” It is settled that the State Department’s determinations concerning an individual’s diplomatic status at a particular time should ordinarily be accepted by the courts. In re Baiz, 135 U.S. 403 , 10 S. Ct. 854 , 34 L. Ed. 222 (1890); Haley v. State, 200 Md. 72, 82-84 , 88 A.2d 312 (1952). Thus, the State Department’s determination that from June 16, 1976, to December 29, 1978, the defendant Traore’s status entitled him to immunity from criminal and civil liability should be respected by the judiciary.

Similarly, if the State Department had made a contrary determination, that Mr. Traore was not entitled to immunity during the same period because of his diplomatic status during that period, such determination would ordinarily be deemed conclusive. The State Department’s letter in this case, however, went beyond a certification of an individual’s diplomatic status at a particular time. The final sentence of the State Department’s letter took the position that the repeal of 22 U.S.C. ⁵⁹⁰ § 252 operated retroactively, so that an act by a mission employee, occurring prior to December 29, 1978, when the employee "enjoyed full immunity,” could "at this time” be the subject of criminal prosecution or legal liability if the act did not arise in the course of performance of official functions. In short, the State Department not only ruled upon defendant’s diplomatic status but also stated a conclusion of law about the effect of congressional action in repealing the old diplomatic immunity statute.

Whether the repeal of the 1790 statute subjects the defendant to the court’s jurisdiction for acts occurring while he was immune from suit involves questions of statutory interpretation and constitutionality. In treating as conclusive the State Department’s views on the retroactivity of the 1978 statute, the Court of Special Appeals stated that Haley v. State, supra, 200 Md. 72 , was controlling. Haley , however, did not involve the effect to be accorded the State Department’s position on issues of statutory construction and constitutionality. The issue in Haley concerned the factual status of the defendant at the time he committed the alleged criminal act.

In that case, a letter to the court from the Swedish Embassy stated that, during the period when the act was committed, the defendant was an American citizen employed as the personal servant of the Air Attache of the Swedish Embassy in Washington, D.C. Apparently no communication from the State Department was available to the trial court. However, a letter from the State Department to this Court represented that "[t]he Swedish Ambassador has not notified the Department of State.officially that Mr. Haley is so employed and the Secretary of State has not, therefore, transmitted his name to the Marshal of the District of Columbia in accordance with provisions of law as set forth in Sections 252-254, Title 22, United States Code.” Id. at 79 . The State Department’s letter went on: "Under these circumstances the Department of State is of the opinion that Carl Haley does not have immunity ... for the reason that there has been no official notification to the United States of any diplomatic status. .. .’’ (Ibid.) Relying upon In re Baiz, supra, 135 U.S. 403 , this Court in ⁵⁹¹ Haley held that the State Department’s letter was determinative of the defendant’s status. Nothing in the Haley case suggests that the State Department’s position on the effect of congressional enactments is binding upon the courts.

On the contrary, in that case the Court itself construed some of the applicable federal statutes, 200 Md. at 79-82 . In re Baiz, relied on by this Court in Haley , is the leading case dealing with diplomatic immunity. The issue in that case was also whether the defendant had the status of a public minister at the time of the act giving rise to the litigation. The Supreme Court, quoting from earlier cases, pointed out that the certificate of the Secretary of State "is the best evidence to prove the diplomatic character of the person,” 135 U.S. at 421 .

The Court concluded (id. at 432): "[W]e do not assume to sit in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the State Department that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof....” Although it held that the State Department’s position regarding the status of the person claiming to be a foreign minister should be accepted, the Court in Baiz construed for itself the underlying statutory provisions and case law concerning what constitutes a "public minister” exercising "diplomatic functions.” Id. at 422-425 . A principal reason underlying judicial deference to the executive branch of the federal government in certain matters involving foreign governments is the principle that courts should "not so exercise their jurisdiction ... as to embarrass the executive arm of the Government in conducting foreign relations.” Ex parte Republic of Peru, 318 U.S. 578, 588 , 63 S. Ct. 793, 799 , 87 L. Ed. 1014 (1943). See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 697 , 96 S. Ct. 1854, 1862-1863 , 48 L. Ed. 2d 301 (1976); Banco ⁵⁹² Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-433 , 84 S. Ct. 923, 940-943 , 11 L. Ed. 2d 804 (1964). There are, however, well established limitations to this principle.

Baker v. Carr, 369 U.S. 186, 211-213 , 82 S. Ct. 691, 707-708 , 7 L. Ed. 2d 663 (1962) (setting forth various examples of such limitations, including limits upon the concept that the executive determines a person’s status as representative of a foreign government, id. at 213 ). One limitation is when Congress has acted with respect to a particular matter, and the issues in litigation concern the authority of Congress to so act and the interpretation or scope of the legislative enactment. These are issues to be resolved by the judiciary. Vermilya-Brown Co. v. Connell, 335 U.S. 377,380-385 , 69 S. Ct. 140, 142-145 , 93 L. Ed. 76 (1948), See also Baker v. Carr, supra, 369 U.S. at 212 .

Consequently, whether Congress intended the December 29,1978, statute to apply to acts committed before that date, and the constitutionality of such application, are issues for resolution by the judiciary, and ultimately the Supreme Court. The State Department’s position on these issues is not binding upon the courts. (2) The threshold question in determining the applicability of the Diplomatic Relations Act of 1978 to acts occurring before December 29, 1978, is whether Congress intended such retrospective operation of the statute. The Diplomatic Relations