Deceased/Not Found IL - Yingying Zhang, 26, Urbana, 9 June 2017 #5 *Arrest*

[Tinypeeps]

Both feds and state could both have jxn here. What I suspect defense will do is file a motion to dismiss based on the lack of jurisdiction because there's no involvement of interstate commerce. They may wait to do it however, because right now there's a rebuttable presumption that kidnapping is out of state if more than 24 hours elapsed. So they may have a hard time rebutting that presumption and say client is innocent plus they might want to argue that some random person kidnapped her and took her out of state or whatever. Many lawyers actually prefer being in federal court too.

But once facts are out and if her body is found in state and the allegations entirely consist of activity in state, they could file a motion to dismiss based on the lack of interstate contacts. I think this would be a strong argument, especially if the only reason this case is being treated differently is because of federal death penalty. The state would then file their own complaint and he would be tried there. If activity is wholly intrastate, the feds may just agree not to prosecute at this time because they will want to preserve trying him at a later date if he should get acquitted in state court. Why would the feds want to get involved in a lengthy constitutional challenge on jxn when he can be put away by state court without those issues? In most cases they wouldn't - they would just give it back to the state. The main reason would be to give him the death penalty which he would not be able to get in state court. Holding the death penalty over him is the best leverage they have at this point to find out where the body is so why not use it? Plus, the optics of this case may be somewhat unique in that China may be pushing for death so they have incentive to keep it in federal court for now.

There may also be other reason that defense could say that the case should go back to state court, but I don't know what those would be. Most people want to remove from state to federal court in civil cases, not the other way around. Moreover, since both state and federal can charge it's not like the defense can say "hey feds, you can't charge him." They can charge him with federal kidnapping, defense could only argue 1) federal kidnapping does not apply here because no interstate conduct nor does the crime fit within any of the other fact scenarios under the federal kidnapping act; or 2) for convenience, etc. try him in state court first, then federal (that is, state a preference for trying him in state court first). State is being smart here because right now his only option is number 1 since the state has not charged him yet. Moreover, the feds would be very reluctant to treat this case differently than other cases- the whole purpose of federal involvement is national uniformity - if the state charges, their normal approach would be to defer, so if they didn't it makes it look like they are not following their own policy. They must be coordinating with the state because they get around this dilemma by the state withholding charges (though at this point, I don't know what the state could charge him with - I assume there is an IL kidnapping law, but that's probably all they can charge him with at this point).

Thanks for that good info. I have a question. If this does go to trial, and no body is found, and no evidence emerges to rule in or out BC's crossing state lines, i.e., the 24-hour presumption cannot be rebutted, would the case stay with the feds?

 

[Skigirl]

My apologies on the complaint- I read the complaint very close back when it was posted 2 weeks ago and it is really an affidavit, it's not a regular complaint like you see in a civil case which is what I thought it was initially when it was kept being referred to as a complaint. Moreover, it was signed by the FBI agent-we don't know who wrote it or if it was written in part from a template; it does not say it was written by him (court case opinions for instance are signed by the judges, but everyone knows that law clerks often write the first draft or often the whole thing, I would defer to anyone who knows how things work in IL on how it works in terms of drafting there or if FBI agents working high profile criminal cases have the time to write affidavits from scratch or rely on a template written by lawyers). I would suspect they use a template and add in their own facts about interstate commerce. My experience with experts and whatnot is that often legal issues are not the purview of FBI agents - I don't know whether this FBI agent is a lawyer - but oftentimes those legal type issues are handled by the lawyers in the US Attorneys Office not the FBI agent because if they are not a lawyer they would not know the latest constitutional law. And I got the court wrong- I did not realize Urbana would be that central to be in Central District not Southern. I don't believe the substance of what I wrote is wrong, though, if you know and read the caselaw on the commerce clause, or even if you read what a lay person could find on the internet.

Can anyone name any case where the federal court got jxn in a kidnapping case and kept it? I teach constitutional law and am a lawyer so my reading of the caselaw and law review article fails to yield any caselaw where the feds took control and kept it in a case like this. The only cases where they kept it as far as I know are ones where the body shows up in a different state or on federal property or something like murder for hire. Indeed, how is this case different from that of Nicole Lovell, the little girl that was murdered by the VA Tech students allegedly? There she was enticed on the internet, her body was found in a different state yet that trial is in VA state court. The grounds for federal jxn are even stronger there since you have a very strong interstate connection. The only difference here is that the victim is a foreign national but if you read the kidnapping law that does not matter. Why treat one case different from another especially given that the purpose of federal jxn is uniformity?

There are indeed attempts to assert jxn in cases like this based on the enticement theory. The law is fairly new though so I don't think it's a settled legal question because all appeals on those issues are not settled yet. Moreover, the cases where I have seen them trying to stretch it are clearly enticement cases like the Nicole Lovell case where the perp uses the internet to entice. I could understanding jxn being granted there and in fact I would be interested to know why that case isn't in federal court and this one is, other than they know this case is only temporarily in federal court or they got good evidence of interstate conduct like they suspect he crossed state lines to dispose of the body or evidence.

Many of you follow more cases than me - any cases where you see a kidnapping in federal court where there is no clear interstate connection other than possibly using the internet and buying a car? Maybe they have a stronger interstate connection that they don't want to tip their hand in but the facts in the complaint would almost give the feds jxn over any kidnapping case where someone buys a car or uses the Internet. they simply do not have the resources to prosecute all those cases nor do we routinely see cases like this in federal court.

I actually find it an extremely interesting constitutional law question which I may write about because to have jxn here - especially if you are asserting jxn to get around the fact that IL is not a death state- is a very interesting constitutional question and one I think would get alot of publicity and attention from legal academia and the higher courts, especially if he gets the death penalty by the federal courts taking jxn in an abduction case in a state that does not have the death penalty.

To answer your question, no. I have followed a good number of cases over the years, and when there is federal involvement, it usually only involves the FBI during the investigation stage. In one case I follow, the Joan Risch case, the FBI helped and some of the documents lead me to believe that they were hoping to find evidence that she had been taken out of state or that the crime occurred in a national park which would have justified federal jurisdiction, but with no such evidence forthcoming, the FBI eventually bowed out and no suspect was ever charged. In the Danielle Stislicki case, the FBI was involved early on in the investigation (leading to lots of speculation here that she might have been taken across state lines or that the case was somehow drug-related), but it seems that local law enforcement has been taking the lead in the investigation lately. I'm sure there are examples of the federal courts retaining jurisdiction in an abduction case, but by my skewed sample, it does not seem common.

Is it possible that the feds want jurisdiction because they are being pressured by our government for diplomatic reasons? Not that they are retaining jurisdiction because of the death penalty, but because our government is feeling pressure to please or at least not antagonize China? I keep thinking that if something like this happened to an American student at Beijing University during her first month in China, we would be putting a great deal of pressure on the Chinese government to show they are serious about bringing someone to justice, and the Chinese government would probably react by putting a lot of resources into an investigation.

 

[Yellow]

Thanks for that good info. I have a question. If this does go to trial, and no body is found, and no evidence emerges to rule in or out BC's crossing state lines, i.e., the 24-hour presumption cannot be rebutted, would the case stay with the feds?

I am not sure what evidence you need to rebut that presumption. If all the evidence in the case points to it having taken place entirely in Illinois, would that be enough, that is, you rebut the presumption by showing all alleged activity takes place in Illinois? I think that would probably be enough for feds not to want to litigate the issue or they may not want to establish the precedent of taking federal jxn in cases like this.

Moreover, especially this is a case where he can be charged by the feds with death but not by the state - the choice of jxn really really matters. If they keep jxn with such flimsy interstate contacts, it makes it look like they are trying to do an end run around IL's lack of a death penalty. They also have as their mission to show uniformity -I hate to phrase it this way but if this turns out to be a normal kidnapping/murder scenario where crazy perp takes a girl, sexually assaults her, and murders her and he uses the internet to look up things beforehand - well, that would apply to almost every case nowadays since many perps look up things online, and the feds are not going to want to take on trying every run of the mill kidnapping/murder case in this country. They don't have the resources or mission to do that.

I think they will just give it up voluntarily at some point. They may want to test the limits with expanding jxn but I think this case from what we know is a little bit of a stretch to do it. I think her being a Chinese national is a big reason why they may treat this case differently, not because of the law but because of the optics though.

 

[Elainera]

Re. why she got in the car - maybe he was flirting with her? Being charming, flattering her? Psychopaths are known to be good at that.

 

[Yellow]

To answer your question, no. I have followed a good number of cases over the years, and when there is federal involvement, it usually only involves the FBI during the investigation stage. In one case I follow, the Joan Risch case, the FBI helped and some of the documents lead me to believe that they were hoping to find evidence that she had been taken out of state or that the crime occurred in a national park which would have justified federal jurisdiction, but with no such evidence forthcoming, the FBI eventually bowed out and no suspect was ever charged. In the Danielle Stislicki case, the FBI was involved early on in the investigation (leading to lots of speculation here that she might have been taken across state lines or that the case was somehow drug-related), but it seems that local law enforcement has been taking the lead in the investigation lately. I'm sure there are examples of the federal courts retaining jurisdiction in an abduction case, but by my skewed sample, it does not seem common.

Is it possible that the feds want jurisdiction because they are being pressured by our government for diplomatic reasons? Not that they are retaining jurisdiction because of the death penalty, but because our government is feeling pressure to please or at least not antagonize China? I keep thinking that if something like this happened to an American student at Beijing University during her first month in China, we would be putting a great deal of pressure on the Chinese government to show they are serious about bringing someone to justice, and the Chinese government would probably react by putting a lot of resources into an investigation.

Yes, I think her being Chinese may be a big reason why the feds are involved. I think as a matter of course because of the 24 hour presumption, it is normal and expected for the FBI to be involved since they have more resources. But like the other cases you mention, it's not entirely normal to prosecute a case like this in federal court. They may continue to assert federal power here because China may be lobbying the State dept. Unfortunately I do not know how common it is that Chinese nationals are subject to crimes in the US. Is she the only Chinese national in the US subject to a serious crime? I am not sure if the numbers are just a few or in the thousands; if only a few I could see China exerting more pressure. Plus I read somewhere that either China or the family wants the death penalty, and that is an option only available in fed court.

Moreover, until they find her, they will want to devote the full resources of the US govt to the task. I think that's what they normally do though. It just may be made more visible here because of the optics of her being Chinese.

I think he was an extreme danger to the community and they needed him in custody since there was a real threat he could harm others. I am not sure what IL kidnapping law is, but perhaps it requires more evidence of force and they thought that would be a problem since it does not show her being physically forced into the car. The federal law talks about force or intent to deceive, so that probably covers his conduct. Other than kidnapping, I am not sure what they could charge him with at this point under state law, and maybe they felt the federal law was the best option to get him in custody as soon as possible.

 

[Yellow]

Re. why she got in the car - maybe he was flirting with her? Being charming, flattering her? Psychopaths are known to be good at that.

Yeah, it is possible. My mother made me watch the Ted Bundy movie with the guy from NCIS in it as Ted Bundy before I went to college to get the point across that serial killers can often be very charming. He could also have exercised some authority over her - like say he was a professor or LE- Chinese culture in general shows more reverence to authority than elders than US culture so that could be an issue.

 

[crhedBngr]

Yeah, it is possible. My mother made me watch the Ted Bundy movie with the guy from NCIS in it as Ted Bundy before I went to college to get the point across that serial killers can often be very charming. He could also have exercised some authority over her - like say he was a professor or LE- Chinese culture in general shows more reverence to authority than elders than US culture so that could be an issue.

He certainly told her something that convinced her to get into his vehicle. It's too bad we didn't see his face closely enough to possibly lip-read what he was telling her.

JMHO.

ETA: I had a weird experience at work before I "retired". Some guy I'd never laid eyes on came up to me one day, and just started talking to me. He knew my name, and he also knew that I ran during my noon hour. I'm sure he was trying to bait me into asking how he knew all of this info - the whole
"I've got power over you and I'm controlling you, whether you like it or not!", but I didn't ask him any questions, including who he was. (He didn't introduce himself, and he was wearing a Perry Ellis shirt, so I told him I'd call him "Perry" )

At any rate, after he nattered on for a few minutes, without getting the satisfaction of questions from me, he left. I didn't worry too much about it. My husband worked at the same place, and I knew some of the security guards. But then, I wasn't a young woman who was just starting her career. I can see where a younger woman might be unnerved by an episode such as this.

One never knows with whom one is dealing, even when they work at the same place.

 

[Tinypeeps]

To answer your question, no. I have followed a good number of cases over the years, and when there is federal involvement, it usually only involves the FBI during the investigation stage. In one case I follow, the Joan Risch case, the FBI helped and some of the documents lead me to believe that they were hoping to find evidence that she had been taken out of state or that the crime occurred in a national park which would have justified federal jurisdiction, but with no such evidence forthcoming, the FBI eventually bowed out and no suspect was ever charged. In the Danielle Stislicki case, the FBI was involved early on in the investigation (leading to lots of speculation here that she might have been taken across state lines or that the case was somehow drug-related), but it seems that local law enforcement has been taking the lead in the investigation lately. I'm sure there are examples of the federal courts retaining jurisdiction in an abduction case, but by my skewed sample, it does not seem common.

Is it possible that the feds want jurisdiction because they are being pressured by our government for diplomatic reasons? Not that they are retaining jurisdiction because of the death penalty, but because our government is feeling pressure to please or at least not antagonize China? I keep thinking that if something like this happened to an American student at Beijing University during her first month in China, we would be putting a great deal of pressure on the Chinese government to show they are serious about bringing someone to justice, and the Chinese government would probably react by putting a lot of resources into an investigation.

YZ was here by invitation of U of I as an international scholar. Would she be covered by this part of the federal kidnapping statute?

) kidnapping in which the victim is a foreign official, an internationally protected person, or an official guest as those terms are defined in 18 U.S.C. § 1116(

 

[Spellbound]

Yellow, I know we keep going round and round on whether this will stay in federal court. I wonder if, because she is from a foreign country and was here less than 2 months if they are hoping to keep it as a federal case? The inky thing I can come up with for how they do that at this point is because she was not "returned unharmed within 24 hours of being taken".

This is from a Florida lawyer, but info should basically be the same:
https://www.southflalaw.com/federal-kidnapping.html

Kidnapping can be prosecuted as a federal case or by the state in which it occurs; depending on the individual situation of each singular incidence and the circumstances relating to the charge. Due to the passage of the federal kidnapping statute (Source: The FBI), the federal government can establish jurisdiction after a period of twenty-four hours if a person is believed or verified to have been taken and is not returned unharmed within that period of time. The word "unharmed" is not clearly defined. This statute was passed by Congress in 1932 as a result of the Baby Lindbergh case and allows the federal government to take the lead in a case if there is even only a suspicion that the victim may have been taken across state lines. This new law was also responsible for the capture of the infamous gangster John Dillinger, and for the first time gave the FBI the authorization to carry guns and make arrests.

 

[Tinypeeps]

Yeah, it is possible. My mother made me watch the Ted Bundy movie with the guy from NCIS in it as Ted Bundy before I went to college to get the point across that serial killers can often be very charming. He could also have exercised some authority over her - like say he was a professor or LE- Chinese culture in general shows more reverence to authority than elders than US culture so that could be an issue.

Imho YZ def does not seem to me to have been a woman who would have been susceptible to charm or flattery. She had a boyfriend, and I just don't see it. But it is possible. We just dont know.

 

[crhedBngr]

Imho YZ def does not seem to me to have been a woman who would have been susceptible to charm or flattery. She had a boyfriend, and I just don't see it. But it is possible. We just dont know.

Yes, this is why I'm thinking he intimated that he "knew" her, possibly through a mutual acquaintance.

 

[Yellow]

Yellow, I know we keep going round and round on whether this will stay in federal court. I wonder if, because she is from a foreign country and was here less than 2 months if they are hoping to keep it as a federal case? The inky thing I can come up with for how they do that at this point is because she was not "returned unharmed within 24 hours of being taken".

This is from a Florida lawyer, but info should basically be the same:
https://www.southflalaw.com/federal-kidnapping.html

Kidnapping can be prosecuted as a federal case or by the state in which it occurs; depending on the individual situation of each singular incidence and the circumstances relating to the charge. Due to the passage of the federal kidnapping statute (Source: The FBI), the federal government can establish jurisdiction after a period of twenty-four hours if a person is believed or verified to have been taken and is not returned unharmed within that period of time. The word "unharmed" is not clearly defined. This statute was passed by Congress in 1932 as a result of the Baby Lindbergh case and allows the federal government to take the lead in a case if there is even only a suspicion that the victim may have been taken across state lines. This new law was also responsible for the capture of the infamous gangster John Dillinger, and for the first time gave the FBI the authorization to carry guns and make arrests.

Yes, there is a 24 rebuttable presumption that if not returned within 24 hours they crossed state lines. But it's rebuttable - you can present evidence that no state lines were crossed. As I mentioned in one of my posts, I think it makes it tricky for the defense because how can you rebut the presumption without admitting stuff about the crime? At this point you can't, I think you have to wait for the body and argue the feds present no evidence of interstate conduct, the body was found in state, they are presenting no evidence BC traveled out of state to dispose of the crime, body, etc. and they only present evidence about the car being bought or made out of state and the internet.

Of course, at this point we are just presuming that nothing was out of state but maybe it was. In most cases, I think the feds just drop it, hence the reason we rarely if ever see cases like this in federal court. It's enough to get an arrest, but it's not enough to keep it, especially in a case like this where jxn really matters (death penalty).

To internet the statute any other way would essentially give the feds jxn over every kidnapping cases where the victim is not returned in 24 hours which is most cases that make headlines or that result in a murder.

 

[Elainera]

Imho YZ def does not seem to me to have been a woman who would have been susceptible to charm or flattery. She had a boyfriend, and I just don't see it. But it is possible. We just dont know.

He could have flattered her intellect, show interest in her field of study, for example.

 

[Yellow]

YZ was here by invitation of U of I as an international scholar. Would she be covered by this part of the federal kidnapping statute?

) kidnapping in which the victim is a foreign official, an internationally protected person, or an official guest as those terms are defined in 18 U.S.C. § 1116(

Yeah, I looked that up last week. It seems that part of the statute, "official guest" or internationally protected persons etc is defined under another law and it seems to apply to official delegations (i.e., like Ivanka Trump would be when she traveled last week to Germany as a part of the US contingent at the G20).

 

[Skigirl]

YZ was here by invitation of U of I as an international scholar. Would she be covered by this part of the federal kidnapping statute?

) kidnapping in which the victim is a foreign official, an internationally protected person, or an official guest as those terms are defined in 18 U.S.C. § 1116(

No, university-affiliated students or scholars are university guests, not US government guests.

 

[Spellbound]

Can anyone name any case where the federal court got jxn in a kidnapping case and kept it?

(snipped by me for brevity)

I found two cases (not found on WS that I know of). they differ from this one, but did involve a kidnapped adult.


This one was a demand for ransom (no death). it was changed from state to federal. I don't think there has been a trial yet.
http://www.9news.com/news/crime/suspects-in-sex-store-kidnapping-now-face-federal-charges/334857947

This one is kidnap/murder of adult by two juveniles and another suspect. (The two juveniles, Christian Velez and Miguel Grullon, along with Tony Estevez, 18, all of Manhattan, are accused of forcing Mr. Gross at gunpoint to withdraw $20,000 from a New Jersey bank on Sept. 17 and then driving into New York City, where he was fatally stabbed and his body dumped in a wooded area along the Hudson River.). so two states and money involved here.
http://www.nytimes.com/1997/11/17/n...te-on-trying-youths-as-adults.html?ref=topics

 

[Russian Blue]

Imho YZ def does not seem to me to have been a woman who would have been susceptible to charm or flattery. She had a boyfriend, and I just don't see it. But it is possible. We just dont know.

At some point in our lives we all are susceptible to a degree to charm and flattery, whether it is for nefarious reasons or not.

 

[AnemoneBrown]

I really wish there was more of an effort to find Yingying or communicate to the public any updates on the search. For me giving this family some answers is at the top of the priority list. However, it appears this case is shaping up to be more about convicting the perp than finding her or giving the public said updates. Such a tragedy. Here's hoping the family will get answers during trial some months down the road. I'll have to check back in then.

 

[Yellow]

(snipped by me for brevity)

I found two cases (not found on WS that I know of). they differ from this one, but did involve a kidnapped adult.


This one was a demand for ransom (no death). it was changed from state to federal. I don't think there has been a trial yet.
http://www.9news.com/news/crime/suspects-in-sex-store-kidnapping-now-face-federal-charges/334857947

This one is kidnap/murder of adult by two juveniles and another suspect. (The two juveniles, Christian Velez and Miguel Grullon, along with Tony Estevez, 18, all of Manhattan, are accused of forcing Mr. Gross at gunpoint to withdraw $20,000 from a New Jersey bank on Sept. 17 and then driving into New York City, where he was fatally stabbed and his body dumped in a wooded area along the Hudson River.). so two states and money involved here.
http://www.nytimes.com/1997/11/17/n...te-on-trying-youths-as-adults.html?ref=topics

Yeah, I think those cases have a much clearer interstate conduct, with the ones taking place in two states. And with the ransom, you would be using interstate commerce (phone I presume) possibly an out of state call or perhaps interstate bank transfer to perpetuate the crime. Murder for hire is also commonly in fed court because of the money aspect to the case, so I think if the case involves money or wire transfer or whatnot it is easier to make out a federal case.

An instate kidnapping/murder case typically only comes in federal court if body is found on federal property like national park or military or body is found in another state.

 

[SteveP]

I really wish there was more of an effort to find Yingying or communicate to the public any updates on the search. For me giving this family some answers is at the top of the priority list. However, it appears this case is shaping up to be more about convicting the perp than finding her or giving the public said updates. Such a tragedy. Here's hoping the family will get answers during trial some months down the road. I'll have to check back in then.

I understand and share your feelings, but respectfully, we do not know how much effort LE is making to find YingYing, and as much as we, the public, would love to be updated on the search, LE is under no obligation to do so. I feel comfortable that finding her is a very high priority for them.