United States v. Mohammad-Omar ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4596
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMMAD ASHRAY MOHAMMAD-OMAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cr-00425-CMH-003)
Submitted: March 25, 2009 Decided: April 27, 2009
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, David B.
Goodhand, Lawrence J. Leiser, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammad Ashray Mohammad-Omar (“Omar”) was convicted
following a jury trial of conspiracy to import one kilogram or
more of heroin, in violation of 21 U.S.C. §§ 952(a), 959, 963,
and 960(b)(1)(A) (2006), and conspiracy to possess with intent
to distribute heroin, in violation of 21 U.S.C. § 846 (2006).
Omar challenges his convictions, arguing that the court lacked
personal jurisdiction over him because his conduct occurred
entirely in foreign countries, and that the evidence was
insufficient to support his convictions. We affirm.
Omar contends on appeal that the district court
lacked jurisdiction over him because he committed no crime
within the United States “nor knew of any criminal act committed
or intended to be committed within the United States.” He
argues that prosecution for conduct that occurred entirely in
foreign countries violates the Due Process Clause. 1
In general, congressional legislation, including
criminal statutes, applies only within the territorial
jurisdiction of the United States. EEOC v. Arabian American Oil
Co., 499 U.S. 244, 248 (1991) (“It is a longstanding principle
1
While Omar did not specifically mention a lack of
“minimum contacts” in the district court, his argument in the
district court that the United States had no authority to reach
his extraterritorial conduct is essentially the same argument he
raises on appeal.
2
of American law that legislation of Congress, unless a contrary
intent appears, is meant to apply only within the territorial
jurisdiction of the United States.”) (internal quotation marks
and citation omitted). This limit “on the extra-territorial
application of a federal statute can be overcome only if there
is an affirmative intention of the Congress clearly expressed.”
Reyes-Gaona v. North Carolina Growers Ass’n, 250 F.3d 861, 864
(4th Cir. 2001) (internal quotation marks and citation omitted).
The statutes prohibiting drug importation under which Omar was
convicted contain just such a congressional expression. Section
959(c) of Title 21 of the U.S. Code provides that it is
“intended to reach acts of manufacture or distribution committed
outside the territorial jurisdiction of the United States.” The
same holds true for other sections of the Controlled Substances
Act, such as 21 U.S.C. §§ 952(a), 960, which prohibit
importation of controlled substances. 2
The Second and Ninth Circuits have held that, while
Congress may clearly express its intent to reach
extraterritorial conduct, a due process analysis must be
undertaken to ensure the reach of Congress does not exceed its
2
The statutory bases for charging conspiracy may be applied
extraterritorially where the underlying substantive statutes
reach extraterritorial offenses. See Chua Han Mow v. United
States, 730 F.2d 1308, 1311 (9th Cir. 1984).
3
constitutional grasp. See United States v. Yousef, 327 F.3d 56(2d Cir. 2003); United States v. Davis, 905 F.2d 245, 248 (9th
Cir. 1990). To apply a federal criminal statute to a defendant
extraterritorially without violating due process, “‘there must
be a sufficient nexus between the defendant and the United
States, so that such application would not be arbitrary or
fundamentally unfair.’” Yousef, 327 F.3d at 111 (quoting Davis,
905 F.2d at 248-49); see United States v. Shahani-Jahromi, 286
F. Supp. 2d 723, 727-28 (E.D. Va. 2003) (involving
extraterritorial application of International Parental
Kidnapping Crime Act). Regarding the nexus requirement, the
Ninth Circuit has also noted:
The nexus requirement serves the same purpose as the
minimum contacts test in personal jurisdiction. It
ensures that a United States court will assert
jurisdiction only over a defendant who should
reasonably anticipate being haled into court in this
country.
United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th
Cir. 1998) (internal quotation marks and citation omitted).
We find sufficient contacts in this case. Omar’s case
is analogous to Davis, in which the Ninth Circuit addressed a
due process challenge to the extraterritorial application of the
Maritime Drug Law Enforcement Act (“MDLEA”), now codified at 46
U.S.C. §§ 70501-70507 (2006). Davis was convicted of possession
of, and conspiracy to possess, marijuana on a vessel subject to
4
the jurisdiction of the United States with intent to distribute.
Davis was not a United States citizen, his vessel was not under
U.S. registry, and his arrest took place on the high seas.
Nevertheless, the Ninth Circuit found a sufficient nexus to
apply the MDLEA to Davis' extraterritorial conduct without
violating the Due Process Clause because the facts of the case
supported the “reasonable conclusion that Davis intended to
smuggle contraband into United States territory.” Davis, 905
F.2d at 249. The court noted that “[w]here an attempted
transaction is aimed at causing criminal acts within the United
States, there is a sufficient basis for the United States to
exercise its jurisdiction.” Id. (internal quotation marks and
citation omitted).
Omar similarly had ample reason to anticipate being
haled into court in the United States on account of his drug
trafficking activity in Afghanistan, Dubai, and Ghana. His
partner, Nasrullah, knew the heroin he sold was destined for the
United States. With regard to a planned 2007 transaction,
Nasrullah personally met with an undercover agent he believed to
be an American heroin distributor. Nasrullah affirmatively
indicated that his partner, Omar, knew the full details and
scope of the transaction. Because the evidence demonstrated
that the drugs Omar conspired to transport were destined for the
5
United States, jurisdiction over him was proper. See Davis,
905 F.2d at 249.
In a similar vein, Omar contends the evidence was
insufficient to support his conviction for conspiracy to import
heroin because the evidence did not demonstrate that he knew or
intended that the drugs would be distributed in the United
States. He further claims that no conspiracy can be established
with undercover law enforcement agents.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690(2008). We review a sufficiency of the evidence challenge by
determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could
find the essential elements of the crime beyond a reasonable
doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir.
2005); see Glasser v. United States, 315 U.S. 60, 80 (1942). We
will uphold the jury’s verdict if substantial evidence supports
it, and will reverse only in those rare cases of clear failure
by the prosecution. Foster, 507 F.3d at 244-45. Our review of
the record leads us to conclude that the evidence was sufficient
to support both of Omar’s convictions.
Accordingly, we affirm Omar’s convictions. We
dispense with oral argument because the facts and legal
6
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
7