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United States v. Thompson

United States Court of Appeals, District of Columbia Circuit

April 23, 2019

United States of America, Appellee
v.
Oral George Thompson, also known as Chad, Appellant

          Argued February 4, 2019

          Appeals from the United States District Court for the District of Columbia Nos. 1:12-cr-00266-3, 1:12-cr-00266-2

          Steven R. Kiersh, appointed by the court, argued the cause and filed the briefs for appellant Oral George Thompson.

          Matthew B. Kaplan, appointed by the court, argued the cause and filed the briefs for appellant Dwight Knowles.

          Dwight Warren Knowles, pro se, filed the briefs for appellant.

          Michael A. Rotker, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Arthur G. Wyatt, Chief, and Charles A. Miracle, Assistant Deputy Chief.

          Before: Garland, Chief Judge, Millett, Circuit Judge, and Silberman, Senior Circuit Judge.

          OPINION

          SILBERMAN, SENIOR CIRCUIT JUDGE

         Appellants Oral Thompson and Dwight Knowles appeal their convictions for conspiracy to distribute and possess with intent to distribute cocaine (5 kilograms or more) on an aircraft registered in the United States or owned by a United States citizen. Neither stepped foot in the United States, and they argue that the conspiracy crime does not have an extraterritorial reach. We conclude that Appellants are correct - at least with respect to conspiracy to possess with intent to distribute because the underlying crime is not extraterritorial. But an appraisal of the evidence indicates the error is harmless.

         We also reject Appellants' challenges to the district court's evidentiary rulings and remand to the district court for an evidentiary hearing on an ineffective assistance of counsel claim.

         I.

         We first encounter Appellants' argument that the conspiracy crime - without regard to the substantive crimes upon which the conspiracy is based - is not extraterritorial. The conspiracy provision states: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 963.

         Appellants brandish the long-held presumption that United States crimes do not have extraterritorial reach unless Congress provides a "clear indication" that such is intended. Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255 (2010). And it is correct that Congress did not specifically state that this conspiracy provision was extraterritorial. However, the conspiracy language and the substantive offenses were included in the same statute dealing with a common subject matter, the import and export of drugs. Although in a recent case dealing with a charge of conspiracy to commit piracy, we regarded the general federal conspiracy statute - not related to the subject of piracy - as lacking an adequate indication of extraterritoriality, United States v. Ali, 718 F.3d 929, 935-36 (D.C. Cir. 2013), in a subsequent case, we reiterated Ali's recognition that "[g]enerally, the extraterritorial reach of [the] ancillary offense . . . is coterminous with that of the underlying criminal statute." United States v. Ballestas, 795 F.3d 138, 144 (D.C. Cir. 2015) (alterations in original) (quoting Ali, 718 F.3d at 939).

         In Ballestas, we distinguished Ali's treatment of conspiracy to commit piracy by emphasizing that a conspiracy to distribute drugs on board a United States vessel was in the same act, dealing with the same subject, as the underlying offense, which undeniably was extraterritorial. That was sufficient indication that Congress intended the conspiracy offense to be extraterritorial as well. The same analysis applies here - at least with respect to one of the substantive offenses.

         Now, we turn to the extraterritoriality of the substantive offenses in our case. The statute, in which Congress focused, inter alia, on drug crimes in connection with airplanes, states: "It shall be unlawful for any United States citizen on board any aircraft, or any person on board an aircraft owned by a United States citizen or registered in the United States, to - (1) manufacture or distribute a controlled substance or listed chemical; or (2) possess a controlled substance or listed chemical with intent to distribute." 21 U.S.C. § 959(b).[1]Congress explicitly addressed the extraterritorial reach of these crimes in the very next provision, § 959(c): "Acts committed outside territorial jurisdiction of United States . . . [.] This section is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States." (emphasis added).

         Here is the anomaly. Distribution and manufacture clearly have extraterritorial reach, so therefore a conspiracy to engage in either, according to our precedent, is extraterritorial as well. But the omission of the third crime, possession with intent to distribute, from the extraterritoriality provision could not be a more striking illustration of the interpretive maxim expressio unius est exclusio alterius. It certainly appears that Congress did not intend possession with intent to distribute to be extraterritorial.

         To be sure, two of our sister circuits, in United States v. Lawrence, 727 F.3d 386 (5th Cir. 2013) and United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016), and our district court, in a previous opinion, United States v. Bodye, 172 F.Supp.3d 15 (D.D.C. 2016), concluded that, notwithstanding the language of the statute, Congress could not have intended to treat possession with intent to distribute only domestically. The distinction in § 959(c) is attributed to inadvertence or poor drafting (the possession provision was placed in the statute later) because our fellow judges could not imagine any reason for the separate treatment of possession. All three courts emphasized that possession with intent to distribute domestically was already illegal.[2]

         The government reiterates reasoning drawn from these opinions. It attempts to create ambiguity where, in our view, none exists. The government argues that the words "acts of" before "manufacture or distribution" in § 959(c) suggest an intent to include in the word "acts" "possession with intent to distribute" because possession is an act antecedent to distribution. We think that is an unlikely reading - that the "acts" of distribution would include myriad preceding acts. It i s also asserted that the words "[t]his section" at the beginning of § 959(c) somehow imply that the whole section is extraterritorial. That is even less likely. As to the claim of superfluousness, we have previously said "[u]nlike two provisions within a single statute, we need not construe separate statutes to avoid redundancy." Bennett v. Islamic Republic of Iran, 618 F.3d 19, 23 (D.C. Cir. 2010).[3]

         Finally, it is claimed that the venue wording supports the government's interpretation. That sentence of § 959(c) states: "Any person who violates this section shall be tried in the United States district court at the point of entry where such person enters the United States, or in the United States District Court for the District of Columbia." (emphasis added). The reference to a district court "at the point of entry" certainly suggests extraterritoriality. But a reasonable reading of the sentence is that the point of entry and District of Columbia references apply only to the two extraterritorial crimes in the immediately preceding sentence, while the general federal venue rule and statute (Fed. R. Crim. P. 18; 18 U.S.C. § 3237) continue to apply to possession with intent to distribute - just as they continue to apply to manufacture and distribution when those crimes are committed domestically. This understanding may, at first glance, seem to be in tension with some of the wording. As the concurrence notes, the provision does refer to "this section," which includes possession. But since the venue provision initially applied only to manufacture and distribution, it seems a reasonable reading of the statute that the venue sentence applies only to those extraterritorial crimes - and possession was not included because it can be tried in the relevant domestic location. See 21 U.S.C. § 959 (1970).

         We simply do not understand our colleague's concern that our interpretation of the venue provision is not "workable." She is troubled about a scenario in which possession with intent to distribute would be tried separately from distribution. Conc. Op. at 8. But she overlooks the crux of our opinion. In our view, the conspiracy to possess with intent to distribute charge at issue here is not a crime at all (because the acts charged occurred extraterritorially). Therefore, we do not see a problem in this case.

         Nor do we see a serious hypothetical problem under our reading of the statute. The venue provision, as we understand it, applies to manufacture and distribution committed abroad, the subject matter of the immediately preceding sentence. This special venue provision is necessary for extraterritorial crimes. But, as we noted, the statute makes manufacture and distribution in connection with aircraft a domestic offense as well. Obviously, in that event, the venue would be dictated by the general venue statute. Bear in mind § 959(c) does not say, as our colleague apparently believes it does: "This section is intended to reach only acts . . . committed outside the territorial jurisdiction of the United States. Any person who violates this section shall only be tried in the United States district court at the point of entry where such person enters the United States, or in the United States District Court for the District of Columbia."

         We think an alternative understanding of venue might be based on the language of the general venue provision, which applies "[e]xcept as otherwise expressly provided by enactment of Congress." 18 U.S.C. § 3237. The Fifth Circuit has held that the language of the venue provision here, despite the use of seemingly mandatory "shall," does not explicitly establish exclusivity. United States v. Zabaneh, 837 F.2d 1249, 1256 (5th Cir. 1988).

         In any event, we conclude that it is unlikely that congressional draftsmen would draft a provision explicitly providing for extraterritoriality only with respect to acts of manufacture and distribution, strikingly omitting the crime of possession with intent to distribute, yet somehow intending extraterritoriality to apply to all three acts. We do not think we can discount plain congressional language as somehow inadvertent or mistaken - particularly when we are dealing with the interpretation of a criminal statute where the doctrine of lenity is required even if the statute is ambiguous.[4] See, e.g., United States v. Bass, 404 U.S. 336, 348 (1971) ("[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.").

         In the end, the issue before us is not what congressional intent might lurk unexpressed in the statute, nor how a reasonable draftsman focusing on drug crimes in connection with airplanes - with thorough knowledge of the U.S. Code - would have fashioned the section. Rather, as we have indicated above, we must apply the long-held presumption against extraterritoriality, which the Supreme Court has described as follows:

Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. The question is not whether we think "Congress would have wanted" a statute to apply to foreign conduct "if it had thought of the situation before the court," but whether Congress has affirmatively and unmistakably instructed that the statute will do so. "When a statute ...

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