United States Court of Appeals, District of Columbia Circuit
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
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.
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
Before: Garland, Chief Judge, Millett, Circuit Judge, and
Silberman, Senior Circuit Judge.
SILBERMAN, SENIOR CIRCUIT JUDGE
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.
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
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.
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).
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.
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).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).
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.
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
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).
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
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.
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."
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).
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. 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.").
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
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 ...