United States v. Ade Lawrence ( 2013 )

Case: 12-20430 Document: 00512347045 Page: 1 Date Filed: 08/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2013
Lyle W. Cayce
No. 12-20430
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
ADE LAWRENCE AND FELICIA PARKER,
Defendants–Appellants.
Appeals from the United States District Court
for the Southern District of Texas
Before OWEN and HAYNES, Circuit Judges and LEMELLE*, District Judge.
LEMELLE, District Judge:
Appellants Felicia Parker and Ade Lawrence were convicted in federal
district court of conspiracy to possess illicit substances aboard an aircraft with
intent to distribute in violation of 21 U.S.C. §963. The conspiracy involved U.S.
citizens traveling from the United States to South America to acquire drugs
which were then transported to the United Kingdom for distribution. Appellants
challenged the application of §959(b) and §963 to their conduct on statutory and
constitutional grounds. The district court denied their motions and upheld their
*
District Judge of the Eastern District of Louisiana, sitting by designation.
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convictions. For the reasons enumerated below, we affirm the ruling of the
district court.
Procedural History:
On January 11, 2011, a federal grand jury returned an indictment
charging Appellants, as well as Sherree Lawrence, Gwendolyn Free, and Monica
Mitchell, with conspiring to possess aboard an aircraft with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. §963. Lawrence and
Parker moved to dismiss the indictment alleging, inter alia, that: (1) Congress
did not intend for §959(b), the provision of the statute that Appellants are
charged with conspiring to violate, to apply extraterritorially; (2) if Congress did
enact §959(b)(2) with the intent that it should apply extraterritorially, it went
beyond its Constitutional authority in doing so; and (3) the indictment was
unconstitutionally vague. The district court denied their motions.
On March 2, 2012, after a five-day trial, a jury convicted Lawrence and
Parker of the charged conspiracy. The district court sentenced Lawrence to 235
months of imprisonment, to be followed by five years of supervised release and
sentenced Parker to 60 months of imprisonment, to be followed by two years of
supervised release. This appeal followed.
Facts:
In late 2009 through July 2010, Appellants Ade Lawrence ("Lawrence")
and Felicia Parker ("Parker"), along with Sherree Lawrence ("Sherree")1,
Gwendolyn Free ("Free"), and Monica Mitchell ("Mitchell"), participated in a
plan to transport cocaine from South America to the United Kingdom on board
1
Sherree Lawrence, Appellant Ade Lawrence's wife, will be referred to as "Sherree"
in order to avoid confusion with Appellant Lawrence ("Lawrence").
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commercial airplanes. Parker, Sherree, Free, and Mitchell, all U.S. citizens,
served as the couriers. Lawrence, who is originally from Nigeria but entered the
United States on a non-immigrant visa, lived in Houston, Texas and after
marrying Sherree, applied for (but never obtained) U.S. citizenship. Lawrence
took a number of actions while in the United States to further the transportation
of the drugs including: hiring drug couriers to work for him, organizing and
paying for the couriers' flights, instructing them on where to stay and how to
establish communication with local contacts, obtaining a visa for at least one
courier, driving at least two couriers to the Houston airport, wiring at least one
courier money, wiring at least one courier money while the courier was abroad
on a trip to transport drugs, and instructing the couriers on how to dress and act
while traveling in order to avoid detection. Each courier applied for an American
passport before traveling for Lawrence. Parker filed an application for an
expedited passport, listing a travel reservation that had been booked using one
of Lawrence's email addresses. The passport applications for Parker, Free, and
Sherree listed the same Houston apartment complex where Appellant Lawrence
lived in 2009 as an address.
The drug-smuggling trips involved similar patterns. Each courier's
smuggling trip originated in Houston. Each courier traveled from Houston to
South America aboard a commercial airline. Upon arriving at her destination
(usually Sao Paulo, Brazil), the courier would check into a hotel for several days
and establish communication with a local contact. During one of Mitchell's trips,
she provided her contact with a jacket that Lawrence had given her before she
left Houston. The jacket contained an envelope with approximately $15,000 in
cash inside one of the jacket's pockets. At some point, the contact would provide
the courier with cocaine that had been concealed inside other items, such as
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shampoo bottles, large candles, or ladies' purses. Appellant Lawrence typically
emailed the courier information for her next flight. The courier would then
transport the cocaine to London by commercial airplane, stopping in several
cities along the way, such as Panama City, Zurich, or Amsterdam. The couriers
admitted to knowing they were transporting drugs. If the courier made it to
London without getting arrested, the drugs were then transferred to a local
contact.
Each leg of the courier's airplane trip was usually booked as a separate
round-trip ticket, even though the return ticket was never used. Lawrence
typically used the email address estherakinremi@yahoo.co.uk to make travel
reservations for the couriers and to email each of them their itineraries.
On at least two occasions, Free was paid £10,000 in cash in London while
on a drug smuggling trip - once by a local contact and once by Appellant
Lawrence. In both instances, Free brought the money back to the United States,
loading most of it onto a prepaid debit card beforehand. Free took three drug-
smuggling trips for Lawrence: in December 2009, she traveled to Ecuador; in
March 2010, she traveled to Panama, continuing to the UK; and in April 2010,
she traveled to Brazil, continuing to the UK.
On June 5, 2010, Appellant Parker traveled to Sao Paulo, continuing to
London (via Panama City, Amsterdam, and Zurich). Parker later told Free that
she had delivered the package she picked up in Brazil to the contact in London.
On June 9, 2010, Sherree flew from Houston to La Paz, Bolivia, and later
to Sao Paulo, Brazil. Brazilian authorities arrested Sherree at the Sao Paulo
airport while she was waiting to board a flight to Amsterdam with her five-year
old daughter, after a drug dog alerted authorities to luggage arriving from
Bolivia under her daughter's name. Authorities recovered almost six kilograms
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of cocaine beneath the false bottoms of two pieces of luggage.
On July 16, 2010, Mitchell flew from Houston to Sao Paulo, where she
picked up cocaine hidden inside eight purses. Mitchell then flew to Panama City.
On July 25, while Mitchell was waiting to check in for a flight to Switzerland,
Panamanian authorities questioned her, searched her luggage, and found almost
three kilograms of cocaine hidden inside the purses. Mitchell was arrested and
eventually transferred into the custody of the United States.
U.S. federal agents questioned Mitchell in Panama and questioned Free
in Texas; both couriers identified Lawrence as the leader of the smuggling
operation and Free also implicated Parker as a courier. When interviewed by
federal agents, Parker acknowledged knowing Lawrence but said that they saw
each other infrequently. Lawrence's cell phone records for the date of Parker's
interview showed repeated, as well as attempted, communications with Parker's
cell phone.
Discussion
On appeal, Appellants Lawrence and Parker argue that: (1) the
substantive crime underlying the conspiracy charge - possession with intent to
distribute in violation of 21 U.S.C. §959(b) - was not intended to apply to
possession of illicit substances aboard a plane traveling between two foreign
nations with intent to distribute in a foreign country and that extraterritorial
application of §959(b) would violate due process and international law; (2) if
Congress enacted §959(b)(2) with the intent that it should apply
extraterritorially, it went beyond its Constitutional authority in doing so; and
(3) the indictment was unconstitutionally vague.
(1) Extraterritorial Application of 21 U.S.C. §959(b)
The district court judge found that Congress clearly intended for §959 to
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apply extraterritorially because §959(c) provides for the extraterritorial
application of the entire section, including §959(b)(2). This court reviews
questions of statutory interpretation de novo. United States v. Kay, 359 F.3d 738,
742 (5th Cir. 2004).
(A) Statutory Language
21 U.S.C. §959, entitled "Possession, manufacture, or distribution of
controlled substance," is located under Subchapter II (Import and Export) of the
Drug Abuse Prevention and Control Act ("DAPCA"). §959 states the following:
(a) Manufacture or distribution for purpose of unlawful importation
It shall be unlawful for any person to manufacture or distribute a
controlled substance . . .
(1) intending that such substance or chemical will be
unlawfully imported into the United States or into waters
within a distance of 12 miles of the coast of the United States;
or
(2) knowing that such substance or chemical will be
unlawfully imported into the United States or into waters
within a distance of 12 miles of the coast of the United States.
(b) Possession, manufacture, or distribution by person on board
aircraft
It shall be unlawful for any United States citizen on board any
aircraft, or any person on board any 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.
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(c) Acts committed outside territorial jurisdiction of the United
States; venue
This section is intended to reach acts of manufacture or distribution
committed outside the territorial jurisdiction of the United 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.
21 U.S.C. §959.
In determining whether a statute is ambiguous, we employ the traditional
tools of statutory interpretation. Garcias-Carias v. Holder, 697 F.3d 257, 263
(5th Cir. 2012). While the plain language of the statute is chief among these, the
Supreme Court has noted that "[i]n determining whether Congress has
specifically addressed the question at issue, a reviewing court should not confine
itself to examining a particular statutory provision in isolation." Khalid v.
Holder, 655 F.3d 363, 367 (5th Cir. 2011) (citing FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132-33 (2000)). A statutory provision "necessarily
derives meaning from the context provided by the surrounding provisions, as
well as the broader context of the statute as a whole." Id.The phrase "any United States citizen on board any aircraft" used in
subsection (b) of 21 U.S.C. §959 suggests that the entire subsection was meant
to apply extraterritorially. 21 U.S.C. §959(b)(emphasis added). Appellants
contend that the provision should be read to refer only to aircrafts traveling
within or to/from the United States. However, given the nature of the
international drug trade, possession of an illicit substance aboard an aircraft will
often involve travel between foreign nations and consequently, implicates
extraterritoriality. Cf. United States v. Delgado-Garcia, 374 F.3d 1337, 1347
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(D.C. Cir. 2004) (noting that a statutory provision stating that "[a]ny
conveyance, including any vessel, vehicle, or aircraft, which has been used [in
transporting illegal immigrants] shall be seized" had extraterritorial application
because conveyances transporting illegal aliens often travel
internationally)(emphasis added).2
Appellants further contend that as §959(c) states that the "section is
intended to reach acts of manufacture or distribution committed outside the
territorial jurisdiction of the United States" and does not explicitly include the
word "possession," Congress did not intend that §959(b)(2) should apply
extraterritorially.3 To evaluate this argument, it is helpful to review the manner
in which this particular provision was amended. As first enacted, §959 contained
only the provisions now codified in subsections §959(a) and (c). Comprehensive
Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, §1009, 84
Stat. 1236, 1289 (1970) (prior to 1986 amendment). Congress added §959(b) in
1986. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, §3161, 100 Stat.
2In Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1665 (2013) (citing
Morrison v. National Australia Bank, Ltd., 130 S. Ct. 2869, 2878 (2010)), the Supreme
Court stated that "it is well established that generic terms like 'any' or 'every' do not rebut
the presumption against extraterritoriality" where a statute is otherwise ambiguous on the
question of extraterritoriality. The Kiobel Court was interpreting the Alien Torts Statute
which states that "[t]he district courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of nations of a treat of the United
States." 28 U.S.C. §1350 (emphasis added). The present case is distinguishable because
§959(b) uses the word "any" in conjunction with the word "airplane" and thus presents a
different statutory question than that found in Kiobel.
3
Appellant Lawrence also cites to U.S. v. Lopez-Vanegas, 493 F.3d 1305, 1313 (11th
Cir. 2007) as support for his contention that §959(b) should not apply extraterritorially.
However, that Circuit was explicitly referring to 21 U.S.C. §§841 and 846 as not applying
extraterritorially. Lopez-Vanegas, 493 F.3d at 1313. In the same opinion, the Eleventh
Circuit noted that Congress expressly stated its intention for §959 to apply
extraterritorially (in contrast to §841). Id.
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3207, 3207-94 - 3207-95 (1986). The original text of the statute was separated
into subsections (a) and (c) and the provision at issue, regarding possession,
manufacture, or distribution by a person on board an aircraft, was inserted as
subsection (b). Id. Congress did not amend the new subsection (c) to include the
word "possession." Congress also added language to further explain the explicit
territorial limitations on §959(a) without adding limiting language to §959(b).
Id.4 "[W]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion." Fla. Dep't of Revenue v. Piccadilly Cafeterias Inc., 554 U.S. 33, 42
(2008) (citing Russello v. United States, 464 U.S. 16, 23 (1983)). Thus, although
the failure to amend subsection (c) could indicate Congressional intent that
subsection (b) should not apply extraterritorially, the decision to add limiting
language to §959(a) without doing so for §959(b) suggests that §959(b) was not
meant to be territorially limited. Furthermore, the second sentence of §959(c)
states that "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." 21
U.S.C. §959(c) (emphasis added). This sentence refers to the violation of any part
of the entire section - including §959(b). Overall, analysis of the statutory
amendments weighs in favor of extraterritorial application.
A structural reading of the statute also favors extraterritorial application
of §959(b)(2). Appellants argue that as §959(b) falls under the "Import and
4
The words "or into waters within a distance of 12 miles of the coast of the United
States" were added to subsection (a).
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Export" subchapter of the statute, any extraterritorial application should be
limited to the possession of illicit substances involving import or export to the
United States. Although the Fifth Circuit has stated that it is "appropriate to
consider the title of a statute in resolving putative ambiguities," United States
v. Marek, 238 F.3d 310, 321 (5th Cir. 2001) (citing Holy Trinity Church v. United
States, 143 U.S. 457, 462 (1892)), this is only relevant where the statutory
language is truly ambiguous. "[S]ubchapter heading[s] cannot substitute for the
operative text of the statute." Piccadilly Cafeterias, Inc., 554 U.S. at 47.
Furthermore, "a statute must, if possible, be construed in such a fashion that
every word has some operative effect." Kay, 359 F.3d at 742-43 (citing United
States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992)); see also TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.") (citations omitted). To read §959(b)(2) as limited to situations
involving import or export to the territorial United States would render it
redundant in light of §955 which states that "[i]t shall be unlawful for any
person to bring or possess on board any vessel or aircraft . . . arriving in or
departing from the United States . . . a controlled substance." 21 U.S.C. §955.
Thus, because §955 of DAPCA explicitly targets acts of import and export to the
United States, §959(b)(2) should not be read as similarly limited.
Ultimately, an analysis of both the statutory language and structure of the
statute supports extraterritorial application of the statute.
(B) Presumptions Regarding Extraterritoriality
"'It is a longstanding principle of American law that legislation of
Congress, unless a contrary intent appears, is meant to apply only within the
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territorial jurisdiction of the United States.'" United States v. Villanueva, 408
F.3d 193, 197 (5th Cir. 2005) (citing Smith v. United States, 507 U.S. 197, 204
(1993) (internal citations omitted)). However, this presumption can be overcome
where extraterritorial application can be "inferred from the nature of the
offenses and Congress' other legislative efforts to eliminate the type of crime
involved." Id. at 199 (citing United States v. Baker, 609 F.2d 134, 136 (5th Cir.
1980)). In United States v. Bowman, the Supreme Court articulated when the
presumption against extraterritoriality may be overcome in the context of
criminal statutes. 260 U.S. 94, 98 (1922). The presumption that Congress
intends to limit the jurisdiction of its statutes to the territorial United States
"should not be applied to criminal statutes which are, as a class, not logically
dependent on their locality for the government's jurisdiction, but are enacted
because of the right of the government to defend itself against obstruction, or
fraud wherever perpetrated, especially if committed by its own citizens, officers,
or agents." Id. (emphasis added). Furthermore, intent to extend jurisdiction
beyond the territorial United States can also be inferred where "to limit [the]
locus [of the offense] to the strictly territorial jurisdiction would be greatly to
curtail the scope and usefulness of the statute." Id.Extraterritorial application of §959(b) is justified under Bowman. "In the
context of drug smuggling laws, this Court has found the necessary
congressional intent to overcome the presumption against extraterritorial
application," Villanueva, 408 F.3d at 199, and in evaluating DAPCA's statutory
framework, this Court has previously commented that Congress intended that
the statute "have a broad sweep in dealing with all aspects of drug abuse."
Baker, 609 F.2d at 137. However, previous cases on extraterritorial application
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of drug statutes involved Defendants intending to export illicit drugs from the
United States or to import and distribute them within the United States. See id.Yet, other Circuits have asserted that the United States government may make
efforts to stem the international drug trade "without any showing of an actual
effect on the United States" because of the threat that the international drug
trade presents to the nation's ability to function. United States v. Perlaza, 439
F.3d 1149, 1162 (9th Cir. 2006). In enacting the DAPCA, Congress noted the
United States' status as a party to "international conventions designed to
establish effective control over international and domestic traffic in controlled
substances." 21 U.S.C.A. § 801 (2012) (emphasis added). Explicit reference to
this status supports Congressional intent for extraterritorial application of
DAPCA. Thus, limiting the application of §959(b) to domestic possession of illicit
drugs on an aircraft would greatly curtail the intended scope and usefulness of
DAPCA.
(C) International Law Principles
Having established Congressional intent to give §959(b) extraterritorial
application, we must now consider whether international law permits the
exercise of such jurisdiction. Rivard v. United States, 375 F.2d 882, 885 (5th Cir.
1967); Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984).
"Under international law a state does not have jurisdiction to enforce a rule of
law prescribed by it, unless it had jurisdiction to prescribe the rule." Rivard, 375
F.2d at 885 (citing Restatement, SECOND OF FOREIGN RELATIONS LAW § 7(2)
(1965)). "The law of nations permits the exercise of criminal jurisdiction by a
nation under five general principles. They are the territorial, national,
protective, universality, and passive personality principles." Id. Under the
nationality principle, "a country may supervise and regulate the acts of its
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citizens both within and without its territory." United States v. Columba-Colella,
604 F.2d 356, 358 (5th Cir. 1979). It is generally accepted that "the legislative
authority of the United States over its citizens extends to conduct by Americans
. . . even within the territory of other sovereigns." United States v. Mitchell, 553
F.2d 996, 1001 (5th Cir. 1977) (citing Steele v. Bulova Watch Co., 344 U.S. 280(1952)). Under this theory, the exercise of jurisdiction over Appellant Parker's
extraterritorial conduct is proper as she is a United States citizen.
"Under the protective theory . . . a country's legislature is competent to
enact . . . [and] enforce criminal laws wherever and by whomever the act is
performed that threatens the country's security or directly interferes with its
governmental operations." Columba-Colella, 604 F.2d at 358 (emphasis added).
As noted earlier, Congress has demonstrated, in enacting DAPCA and in
ratifying various international conventions on the eradication of drug trafficking,
that it considers the international drug trade to be a major threat to the safety
of the United States. See, e.g., 21 U.S.C. §801; United Nations Single Convention
on Narcotic Drugs, 1961, Mar. 30, 1961, 18 U.S.T. 1407, 520 U.N.T.S. 151
("Single Convention"); United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, 1988, Dec. 19, 1988, 28 I.L.M. 493,
1582 U.N.T.S. 95. Furthermore, other courts have relied on the protective
principle to justify jurisdiction over extraterritorial crimes involving drug
smuggling. See, e.g., Perlaza, 439 F.3d at 1162 (drug trafficking "presents the
sort of threat to our nation's ability to function that merits application of the
protective principle of jurisdiction"); United States v. Newball, 524 F.Supp. 715,
720 (E.D.N.Y. 1981); United States v. Egan, 501 F.Supp. 1252, 1258 (S.D.N.Y.
1980). Appellant Lawrence recruited drug couriers within the United States and
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organized a plan to traffic drugs internationally. Given Congressional efforts to
halt the international drug trade, we find that criminalization of Appellant
Lawrence's conduct is justified under the protective principle. The court notes
that we do not, today, address the question of application of §959(b) to a crime
where absolutely no actions related to the crime were committed in the United
States or to a situation where the conduct at issue was lawful in the jurisdictions
in which it occurred but unlawful in the United States.
(D) Extraterritorial Application of §963
Appellants argue that as §963 does not contain explicit language regarding
extraterritorial application, the presumption against extraterritorial application
should apply. However, this Circuit has previously applied §963
extraterritorially. See, e.g., United States v. Postal, 589 F.2d 862, 885-86 (5th Cir.
1979). Furthermore, courts have "inferred the extraterritorial reach of
conspiracy statutes on the basis of a finding that the underlying substantive
statutes reach extraterritorial offenses." Chua Han Mow, 730 F.2d at 1311.
Thus, §963 can be applied extraterritorially.
(E) Due Process Challenge
In Blackmer v. United States, the Supreme Court stated that U.S. citizens
"owe allegiance to the United States [and that] [b]y virtue of the obligations of
citizenship, the United States retain[s] its authority over [its citizens], and [its
citizens are] bound by its laws made applicable to [them] in a foreign country."
284 U.S. 421, 437 (1932). In that case, the Court found that a U.S. citizen was
still subject to punishment in the courts of the United States for violations of
United States' laws through conduct perpetrated abroad. Id. Under Blackmer,
application of §959(b) to Appellant Parker, a U.S. citizen, does not violate the
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Due Process Clause.
In the context of non-U.S. citizens, "due process requires the Government
to demonstrate that there exists 'a sufficient nexus between the conduct
condemned and the United States' such that application of the statute would not
be arbitrary or fundamentally unfair to the defendant." Perlaza, 439 F.3d at
1160 (citations omitted). Appellant Lawrence himself and his part in the
conspiracy do have such a nexus to the United States: Lawrence resided in
Houston, Texas with his wife (who served as one of his couriers), recruited drug
couriers, formulated the plan to traffic drugs, bought plane tickets, applied for
his drug couriers' passports, and transferred some of the requisite cash to his
couriers all in the United States. These contacts create a nexus sufficient to
satisfy due process requirements.
(2) Congressional Authority to Enact 21 U.S.C. §959(b) with
Extraterritorial Application
This court reviews constitutional challenges de novo. United States v.
Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000).
(A) Congressional Authority Under the Necessary and Proper Clause
The United States Constitution expressly empowers Congress "[t]o make
all Laws which shall be necessary and proper for carrying into Execution
[Congress's Article 1, §8] Powers and all other Powers vested by this
Constitution in the Government of the United States." Jinks v. Richland County,
South Carolina, 538 U.S. 456, 461 (2003); see U.S. CONST. art. I, §8, cl. 18. The
Supreme Court has "rejected the view that the Necessary and Proper Clause
demands that an Act of Congress be 'absolutely necessary' to the exercise of an
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enumerated power. . . [I]t suffices that [a statute] is 'conducive to the
administration of justice' in federal court, and is 'plainly adapted' to that end."
Id. at 462 (citing McCulloch v. Maryland, 17 U.S. 316, 414, 417, 421 (1819)).
"[I]n determining whether the Necessary and Proper Clause grants Congress the
legislative authority to enact a particular federal statute, we look to see whether
the statute constitutes a means that is rationally related to the implementation
of a constitutionally enumerated power." United States v. Comstock, 130 S.Ct.
1949, 1956 (2010) (citing Sabri v. United States, 541 U.S. 600, 605 (2004)).
Congress possesses authority to criminalize conduct in the course of "carrying
into Execution" the powers "vested by" the United States Constitution. Id. at
1957-58.
(i) Congressional Authority to Enforce International Treaties
"[The President] shall have power, by and with the Advice and Consent of
the Senate, to make Treaties." U.S. CONST. art. II, § 2, cl. 2. All treaties ratified
by Congress become the supreme law of the land. U.S. CONST. art. VI, cl. 2. At
the time that DAPCA was enacted, the United States was party to the Single
Convention on Narcotic Drugs (1961), to which Congress made explicit reference
when it passed DAPCA, see 21 U.S.C. § 801(7), highlighting the Convention's
relevance to the enactment of the legislation.
Article 36 of the Single Convention states that each Party to the
Convention shall adopt such measures as will ensure that, inter alia, possession
of drugs "contrary to the provisions of this Convention, and any other action
which in the opinion of such Party may be contrary to the provisions of this
Convention, shall be punishable offenses when committed intentionally." United
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Nations Single Convention on Narcotic Drugs, 1961, art. 36(1), Mar.30, 1961, 18
U.S.T. 1407, 520 U.N.T.S. 151. Appellants note that Art.36(2)(a)(iv) of the
Single Convention states that offenses "committed either by nationals or by
foreigners shall be prosecuted by the Party in whose territory the offence was
committed" and argue that allowing §959(b)(2) to have extraterritorial effect
would violate the treaty. Appellants' reliance on this provision is unavailing.
First, as previously noted, under the protective principle, it is accepted that a
state may enforce its laws against its own citizens abroad without offending the
sovereignty of foreign nations. Columba-Colella, 604 F.2d at 358. Thus, the
prosecution of Appellant Parker, a U.S. citizen, comports with international law.
Furthermore, the Single Convention states that "[i]ntentional participation in,
conspiracy to commit and attempts to commit, any of such offences, and
preparatory acts and financial operations" in connection with prohibited offenses
will be punishable. Id. at art. 36(2)(a)(ii) (emphasis added). Both appellants
were charged with conspiracy to possess with intent to distribute. As previously
noted, Appellant Lawrence formed the conspiracy in the United States and took
a multitude of actions in furtherance of the conspiracy in the United States.
Thus, application of §§ 959(b)(2) and 963 to Appellant Lawrence is also
consistent with U.S. treaty obligations.
Given the directives of the Single Convention, extraterritorial application
of §959(b)(2) is rationally related to the implementation Congress's treaty-
making power, "conducive to the administration of justice" in federal court, and
"plainly adapted" to that end. Thus, we find that extraterritorial application of
§959(b)(2) in this case is permissible as implementing Congress' treaty-making
power under the Necessary and Proper Clause.
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(3) Constitutional Sufficiency of the indictment
This Court reviews the sufficiency of an indictment de novo. United States
v. Morrow, 177 F.3d 272, 296 (5th Cir. 1999). The purpose of an indictment is "to
allege each essential element of the offense charged so as to enable the accused
to prepare his defense and to allow the accused to invoke the double jeopardy
clause in any subsequent proceeding." Id. (citing United States v. Cluck, 143 F.3d
174, 178 (5th Cir. 1998), cert. denied, 525 U.S. 1073 (1999). Thus, an indictment
is sufficient if it "contains the elements of the offense charged and fairly informs
the defendant of the charge against which he must defend." United States v.
Fuller, 974 F.2d 1474, 1480 (5th Cir. 1992) (quoting United States v. Graves, 669
F.2d 964, 968 (5th Cir. 1982)).
It is well established that in "an indictment for conspiring to commit an
offense-in which the conspiracy is the gist of the crime- it is not necessary to
allege with technical precision all the elements essential to the commission of
the offense which is the object of the conspiracy." Graves, 669 F.2d at 968 (citing
Wong Tai v. United States, 273 U.S. 77, 81 (1927)). Although some conspiracy
statutes require an indictment to list the overt acts taken in furtherance of the
conspiracy, see, e.g., United States v. Ivey, 949 F.2d 759, 765 (5th Cir. 1991);
United States v. Evans, 572 F.2d 455, 483 (5th Cir. 1978), §963 does not have
such a requirement. In United States v. Shabani, 513 U.S. 10, 13 (1994), the
Supreme Court held that the language of 21 U.S.C. §846, which is identical to
the language found in §963, does not "require[] that an overt act be committed
to further the conspiracy" and it has "not inferred such a requirement from
congressional silence in other conspiracy statutes." Additionally, the Fifth
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Circuit stated in United States v. Thomas, 567 F.2d 638, 641 (5th Cir. 1978), that
while "several Fifth Circuit cases have proceeded under the assumption that [§
963] requires that overt acts be alleged," the section does not, in fact, have such
a requirement.
In the instant case, the indictment charged Appellants Lawrence and
Parker with knowingly and intentionally combining, conspiring, and agreeing
with each other and with other co-conspirators to knowingly and intentionally
possess illicit substances, aboard an aircraft, with intent to distribute in
violation of 21 U.S.C. §959(b). The indictment includes approximate dates and
charges that the conspiracy involved an agreement to book flight itineraries with
multiple legs from the United States to Brazil and then Great Britain. The
indictment further charges that defendants booked itineraries, traveled on these
itineraries to Brazil, where they picked up luggage containing cocaine and that
they would then transport the cocaine from Brazil to Great Britain on
commercial aircrafts, transiting through various other countries. Once in Great
Britain, the defendants would deliver the cocaine to a co-conspirator before
traveling back to the United States. This recital of facts and the elements of
conspiracy to commit the relevant offense was sufficient to enable appellants to
prepare their defenses.
Conclusion:
For the foregoing reasons, we affirm the district court judgment.
* * *
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