United States v. Oral Thompson ( 2019 )


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  • United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued February 4, 2019               Decided April 23, 2019
    No. 17-3060
    UNITED STATES OF AMERICA,
    APPELLEE
    v.
    ORAL GEORGE THOMPSON, ALSO KNOWN AS CHAD,
    APPELLANT
    Consolidated with 17-3061
    Appeals from the United States District Court
    for the District of Columbia
    (No. 1:12-cr-00266-3)
    (No. 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.
    2
    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 for the Court filed by Senior Circuit Judge
    SILBERMAN.
    Opinion concurring in part and concurring in the judgment
    in part filed by Circuit Judge MILLETT.
    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
    3
    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.
    4
    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
    1
    Although 
    21 U.S.C. § 959
     has been updated, we use the version
    in effect from October 13, 1996, to May 15, 2016.
    5
    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 is
    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
    2
    Epskamp and Bodye referred to 
    21 U.S.C. § 841
    (a), which
    makes illegal possession with intent to distribute. Epskamp, 832 F.3d
    at 164-65; Bodye, 172 F. Supp. 3d at 19-20. Lawrence referred to 
    21 U.S.C. § 955
    , which addresses possession on an aircraft. Lawrence,
    727 F.3d at 393.
    3
    While both § 841 and § 959 were enacted as part of the same
    package of legislation and revised at the same time, the former is
    located within the Controlled Substances Act, 
    21 U.S.C. §§ 801
     et
    seq., while the latter is found within the Controlled Substances Import
    and Export Act, 
    21 U.S.C. §§ 951
     et seq. In any event, as the
    Supreme Court has recognized, “instances of surplusage are not
    6
    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
    unknown.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 
    548 U.S. 291
    , 299 n.1 (2006).
    7
    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
    8
    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 gives no clear
    indication of an extraterritorial application, it has
    none.”
    4
    The Supreme Court, many years ago in the case of Holy Trinity
    Church v. United States, 
    143 U.S. 457
     (1892), said, “the act, although
    within the letter, is not within the intention of the legislature, and
    therefore cannot be within the statute,” 
    id. at 472
    , but that approach
    appears to have been abandoned, see, e.g., Carcieri v. Salazar, 
    555 U.S. 379
    , 387 (2009).
    9
    RJR Nabisco, Inc. v. European Community, 
    136 S. Ct. 2090
    ,
    2100 (2016) (citations omitted) (quoting Morrison, 
    561 U.S. at 255, 261
    ).
    Our colleague’s reasoning, to be sure, does demonstrate that
    the statute’s drafting was somewhat inartful, but she has
    absolutely no explanation why Congress would have
    deliberately excluded possession from § 959(c). That is why the
    presumption carries the day. Because § 959 “gives no clear
    indication of an extraterritorial application” for possession with
    intent to distribute, we must conclude that “it has none.”
    We determine, therefore, that the charge of conspiracy to
    possess with intent to distribute was defective. Appellants argue
    that under these circumstances, their convictions must be
    reversed because it is impossible to determine whether the jury’s
    verdict was based on a conspiracy to distribute or to possess
    with intent to distribute. The difficulty with Appellants’
    argument is that it is quite challenging to imagine any evidence
    that would be probative of a conspiracy to possess with intent to
    distribute that would not also be evidence of a conspiracy to
    distribute. Indeed, when counsel for Appellant Knowles was
    asked at oral argument for even one example of evidence in the
    case that was directed to conspiracy to possess with intent to
    distribute but not to conspiracy to distribute, he could not
    respond. Since no possible prejudice could have arisen from the
    asserted error, we conclude the error was harmless.5 See Skilling
    5
    The Government argues that we should apply plain error review
    because Appellants’ counsel, despite having raised these precise
    arguments in a pre-trial motion to dismiss the indictment, did not
    object on those same grounds to the jury instructions. We need not
    decide whether Appellants’ pre-trial motion was sufficient to preserve
    their argument because we conclude, in any event, the error was
    harmless.
    10
    v. United States, 
    561 U.S. 358
    , 414 (2010); Hedgpeth v. Pulido,
    
    555 U.S. 57
    , 61 (2008); Pope v. Illinois, 
    481 U.S. 497
    , 501-02
    (1987); see also Neder v. United States, 
    527 U.S. 1
    , 9-10 (1999).
    II.
    As we noted, Appellants also claim the district court abused
    its discretion in admitting certain evidence. Most notably,
    Thompson contends that evidence of his involvement in drug
    transactions, extrinsic to the charged conspiracy – to use U.S.
    registered planes from in or about May 2011 to December 12,
    2012 – was admitted contrary to Rule 404(b) of the Federal
    Rules of Evidence. That provision, as is well known, prohibits
    the use of evidence of another act – not the crime charged – to
    prove a person’s bad character. The district court admitted
    evidence that Thompson was involved in drug transactions in
    the 1990's; that Thompson had a conversation in June 2011
    regarding a possible purchase of cocaine; that in May 2011,
    Thompson had conversations about a shipment of cocaine from
    Venezuela to Honduras (not involving a U.S. registered plane);
    and that in May 2012, Thompson had a conversation with
    another member of the conspiracy regarding a sale of cocaine to
    a third person Thompson knew.
    In evaluating the district court’s decisions, both in response
    to the government’s motion in limine and its charge to the jury,
    we must bear in mind that the court was careful to instruct the
    jury properly that it could not base conviction on other than
    indicted conduct. But 404(b) permits, as the district court
    instructed the jury, the use of evidence of drug shipments or
    transactions using non-aircraft means to show the similarity of
    prior crimes, a common plan or scheme, or to show defendant’s
    knowledge of drug transactions and purpose.
    11
    To be sure, even if prior bad act evidence falls within the
    categories permitted by 404(b), it must not be unfairly
    prejudicial under Rule 403. But, in our view, the admission of
    most of this evidence was easily within the district court’s
    discretion. We see one difficulty, however. We have held that
    when evidence of prior bad acts is introduced to show
    defendant’s knowledge of the type of transactions, it cannot be
    stale, see United States v. Sheffield, 
    832 F.3d 296
    , 307-08 (D.C.
    Cir. 2016), and the evidence from the 1990's does seem stale.6
    We think, however, that, given all the other evidence in the case,
    if admission of that testimony to show knowledge was
    erroneous, it was harmless.
    Both Appellants also object to the testimony of two
    members of the conspiracy (Matthew Ferguson and Anton
    Johnson). That testimony explained to the jury the meaning of
    code words used in recorded evidence. Appellants assert that
    the witnesses should have been qualified as experts, but we have
    previously held that so long as members of the conspiracy testify
    based on their own participation in the conspiracy (not
    necessarily participation in a particular conversation), such
    witnesses do not have to be qualified as experts. See United
    States v. Wilson, 
    605 F.3d 985
    , 1025-26 (D.C. Cir. 2010). We
    do note, however, that Anton Johnson’s testimony, at some
    points, does seem more like that of an expert than a lay witness.
    The government asked him about his expertise in drug
    transactions generally, including the technicalities and jargon of
    drug trafficking. Unfortunately for Appellants, they never
    objected to Johnson’s testimony, so therefore we review it for
    plain error, which requires prejudice. That is impossible to
    6
    Had the district court instructed the jury that evidence of the
    1990's transactions could be considered as evidence of when and how
    members of the conspiracy met, it might have been admissible.
    12
    show since Johnson’s testimony covered virtually the same
    ground as Ferguson’s.7
    III.
    Thompson raises several arguments claiming ineffective
    assistance of counsel: failure to move for severance of
    Defendants based on the introduction of potentially prejudicial
    testimony against Knowles; failure to move to sever Defendants
    based upon disparity of the evidence; failure to move to dismiss
    the indictment based upon a variance between the indictment
    and the specific offense for which Defendant was charged; and
    failure to move for a mistrial when the government elicited
    testimony from Anton Johnson that he was engaged in human
    trafficking. Our general practice is to remand to the district
    court unless we find the claims not to be colorable.
    We think none of these claims are colorable except one.
    We remand to the district court the question of whether it was
    ineffective assistance of counsel for Thompson’s counsel to fail
    to move to sever the claims of Thompson and Knowles in light
    of potentially prejudicial evidence introduced at trial.
    IV.
    For the foregoing reasons, we affirm the judgments of the
    district court and remand with instructions to hold an evidentiary
    hearing related to Appellant Thompson’s claim of ineffective
    assistance of counsel as consistent with this opinion.
    So ordered.
    7
    We have considered the other evidentiary issues raised by
    Appellants and think they lack sufficient merit to discuss.
    MILLETT, Circuit Judge, concurring in part and concurring
    in the judgment in part: While we end up in the same place,
    the majority opinion and I get there by different routes.
    Specifically, I am troubled by the path the majority opinion
    cuts through extraterritoriality analysis because the textual
    indicia of extraterritoriality are far stronger than the majority
    opinion indicates. And all of the other federal circuit courts to
    have addressed the question have ruled the opposite of the
    majority opinion here.
    Because creating a circuit conflict is unnecessary to the
    resolution of this case, I would simply affirm—as the court
    ultimately does—on the ground that any error in charging the
    extraterritorial possession conspiracy would be harmless. That
    is because the evidence that proved the possession conspiracy
    was fully coextensive with proof of the concededly
    extraterritorial distribution conspiracy, 
    21 U.S.C. § 959
    (b)
    (2012). See Maj. Op. at 9–10.
    As relevant here, Section 959(b)(1) of Title 21 prohibits
    the manufacture or distribution of controlled substances by any
    person on board an aircraft that is registered in the United
    States or owned by a United States citizen. Section 959(b)(2)
    outlaws possession with the intent to distribute under the same
    circumstances. The extraterritoriality of Section 959(b)(1)’s
    prohibition on manufacture or distribution is undisputed. It is
    the extraterritorial status—or not—of Section 959(b)(2)’s
    offense of possession with the intent to distribute that is in
    question here.
    The majority opinion rightly recognizes that a statute will
    not have extraterritorial reach unless “Congress has
    affirmatively and unmistakably instructed that the statute will
    do so.” RJR Nabisco, Inc. v. European Community, 
    136 S. Ct. 2090
    , 2100 (2016); see Morrison v. National Australia Bank
    Ltd., 
    561 U.S. 247
    , 255, 261 (2010). That textual inquiry, like
    all exercises in statutory construction, must read the statute as
    2
    a functioning whole. See EEOC v. Arabian American Oil Co.,
    
    499 U.S. 244
    , 255 (1991), superseded by Civil Rights Act of
    1991, Pub. L. No. 102–166, § 109(a), 
    105 Stat. 1071
    .
    Here is what the statute says in that regard:
    (a) Manufacture or distribution for purpose of
    unlawful importation
    It shall be unlawful for any person to
    manufacture or distribute a controlled substance
    in schedule I or II or flunitrazepam or listed
    chemical—
    (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 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
    3
    (2) possess a controlled substance or listed
    chemical with intent to distribute.
    (c) Acts committed outside territorial jurisdiction
    of 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
    .
    Helpfully, Section 959(c)’s opening sentence announces
    its extraterritorial scope: “This section is intended to reach acts
    of manufacture or distribution committed outside the territorial
    jurisdiction of the United States.” 
    21 U.S.C. § 959
    (c)
    (emphasis added). That broad and explicit language expressly
    confirms that “[t]his section”—all of Section 959—has
    extraterritorial reach. Cf. Koons Buick Pontiac GMC, Inc. v.
    Nigh, 
    543 U.S. 50
    , 60–62 (2004) (“this subparagraph” means
    the entire subparagraph). In so doing, the extraterritoriality
    provision plainly encompasses not only the importation
    offenses outlined in Section 959(a), but also any acts of
    manufacture or distribution in Section 959(b). No surprise
    there, since Section 959 is one part of an entire Subchapter
    devoted to the “[i]mport and [e]xport” of controlled substances
    that regulates from beginning to end the cross-border and
    transnational movement of drugs. 21 U.S.C. ch. 13, subch. II.
    4
    The majority opinion, fairly enough, points out that
    Section 959(c)’s key language refers to “acts of manufacture or
    distribution,” not possession. From that, the majority opinion
    concludes that Congress made Section 959(b)(1)’s prohibition
    on manufacture and distribution extraterritorial, while
    excluding Section 959(b)(2)’s possession with intent to
    distribute offense. Maj. Op. at 4. In so doing, the majority
    opinion relies on a rule of negative implication known as
    expressio unius est exclusio alterius: “expressing one item of
    [an] associated group or series excludes another left
    unmentioned.” Chevron USA Inc. v. Echazabal, 
    536 U.S. 73
    ,
    80 (2003) (quoting United States v. Vonn, 
    535 U.S. 55
    , 65
    (2002)).
    That rule “is fine when it applies,” but this case does not
    seem to fit the bill. Chevron, 536 U.S. at 80. Congress did not
    frame its extraterritoriality statement in the same terms as
    Section 959(b)(1), which makes it unlawful to “manufacture or
    distribute.” Instead, Congress declared that all “acts of”
    manufacture or distribution identified in “[t]his section” have
    extraterritorial operation. 
    21 U.S.C. § 959
    (c). Because Section
    959(b)(2) reaches only those acts of possession undertaken
    “with [the] intent to distribute,” that conduct naturally qualifies
    as an “act[] of” distribution within the meaning of the
    extraterritoriality clause. 
    21 U.S.C. § 959
    (b)(2), (c) (emphasis
    added); see United States v. Contreras, 
    446 F.2d 940
    , 942 (2d
    Cir. 1971) (holding that “possession of cocaine constituted ‘an
    act of * * * distributing’ cocaine” where a jury necessarily
    found that possession was part of the “process of distributing”
    the drug) (quoting Turner v. United States, 
    396 U.S. 398
    , 423
    (1970)); cf. United States Sentencing Guidelines Manual
    § 2G2.2 cmt. n.1 (U.S. Sentencing Comm’n 1987) (defining
    “distribution” of child pornography to include “possession with
    intent to distribute”).
    5
    The proof of that proposition is in the pudding. As the
    majority opinion notes, “it is quite challenging to imagine any
    evidence that would be probative of a conspiracy to possess
    with intent to distribute that would not also be evidence of a
    conspiracy to distribute.” Maj. Op. at 9. The evidentiary delta
    is vanishingly thin precisely because possession with the intent
    to distribute is an “act[] of” distribution. 
    21 U.S.C. § 959
    (c).
    The majority opinion brushes off Section 959(c)’s “acts
    of” language. Maj. Op. at 5. But a cardinal rule of statutory
    construction is that courts should not discard duly enacted
    statutory text as meaningless verbiage. 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
    construed so that, if it can be prevented, no clause, sentence, or
    word shall be superfluous, void, or insignificant.”) (internal
    quotation marks omitted omitted). And if Congress had wanted
    to confine Section 959’s extraterritorial reach to the
    manufacture or distribution of controlled substances, it could
    easily have said that “This section Sections 959(a) and
    959(b)(1) is are intended to reach acts of manufacture or
    distribution committed outside the territorial jurisdiction of the
    United States.” Or “[t]his section is intended to reach acts of
    manufacture or distribution committed outside the territorial
    jurisdiction of the United States.” Either way, the majority
    opinion leaves the “acts of” phrase with “no job to do[.]” Doe
    v. Chao, 
    540 U.S. 614
    , 623 (2004).
    The difference matters. When every word of the
    extraterritoriality clause is accounted for and given its natural
    reach, that clause’s statement as to “[t]his section[’s]” scope
    operates to explain, rather than to constrain, Section 959’s
    breadth (as the majority opinion does). In other words, Section
    959(c) is best read as doing exactly what the Supreme Court
    requires: The statute affirmatively and explicitly declares that
    6
    the “acts of distribution” outlawed by “[t]his section”—which
    includes possession with the intent to distribute—are
    prohibited outside the United States (assuming the required
    nexus to a United States aircraft).
    Two more rules of statutory construction reinforce that
    reading.
    First, just as courts should not discard statutory language
    as wasted words, they surely should not construe an entire
    statutory provision as an empty gesture. See TRW, 
    534 U.S. at 31
    . If, as the majority opinion would have it, Section 959(b)(2)
    simply proscribes domestic possession with the intent to
    distribute, it accomplishes nothing. Section 841, enacted and
    amended alongside Section 959 as part of the same legislation,
    already outlaws domestic possession with the intent to
    distribute controlled substances, whether or not on an airplane.
    
    21 U.S.C. § 841
    (a); cf. United States v. Ray, 
    250 F.3d 596
     (8th
    Cir. 2001) (affirming 
    21 U.S.C. §§ 841
     and 846 conviction for
    conspiracy to possess with the intent to distribute marijuana on
    board domestic aircraft). 1 And federal law already imposes the
    same penalties—in fact, even more severe for certain
    recidivists—as attach to Section 959(b)(2). Compare 
    21 U.S.C. § 841
    (b), with 
    id.
     § 960(b)(1) (same, except not
    including the enhancement for third felony drug offenses
    1
    See Comprehensive Drug Abuse Prevention and Control Act of
    1970, Pub. L. No. 91-513, §§ 401 and 1009, 
    84 Stat. 1236
     (enacting
    both Section 841 and Section 959); Anti-Drug Abuse Act of 1986,
    Pub. L. No. 99-570, §§ 1002–1003, and 3161, 
    100 Stat. 3207
    (amending Section 959 to include Section 959(b) and also amending
    Section 841’s penalty provision, Section 841(b)). Because Sections
    959 and 841 were enacted and amended as part of the same
    legislation, the majority opinion’s reliance on Bennett v. Islamic
    Republic of Iran, 
    618 F.3d 19
    , 23 (D.C. Cir. 2010), is misplaced.
    7
    provided by 
    21 U.S.C. § 841
    (b)); see also 
    id.
     §§ 841(b) and
    960(b)(1) (2012).
    More to the point, if Congress had wanted to
    reduplicatively outlaw and punish exclusively domestic
    conduct that it had already outlawed and punished, the last
    thing it would do is bury that new purely domestic prohibition
    within a wholly extraterritorial statute, tie it to another
    extraterritorial provision, and make it part of an extraterritorial
    “section” that captures all extraterritorial “acts of” distribution,
    
    21 U.S.C. § 959
    (c). See United States v. Epskamp, 
    832 F.3d 154
    , 166 (2d Cir. 2016) (“It is impossible to discern any
    possible reason as to why Congress, if it actually intended
    § 959(b)(2) to apply solely to domestic conduct, elected to
    place such a provision within an existing statute that was
    expressly and wholly extraterritorial in nature, coupled with
    another new subsection—§ 959(b)(1)—that was likewise
    intended to apply extraterritorially.”).
    Second, an elemental rule of statutory construction is to
    “[r]ead on.” Arkansas Game & Fish Comm’n v. United States,
    
    568 U.S. 23
    , 36 (2012). Section 959(c)’s statement about the
    intended extraterritorial reach of “[t]his section” does not stop
    with that declaration. Its next sentence provides that “[a]ny
    person who violates this section shall be tried” in the federal
    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). 2 Mandating that
    venue for the prosecution of “[a]ny person” who violates “this
    2
    The sentence reads, in full: “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). A
    recent amendment of Section 959 eliminated the venue provision.
    See 
    id.
     § 959(d) (2017).
    8
    section” “shall” be “at the point of entry where such person
    enters the United States” necessarily presupposes
    extraterritorial offenses. Allowing venue alternatively in the
    District of Columbia as the seat of the federal government—
    and nowhere else—is consistent with that extraterritorial reach.
    The majority opinion suggests that the venue provision
    refers back only to the extraterritorial manufacture and
    distribution crimes. Maj. Op. at 6–7. But that is not what
    Section 959(c) says. The preceding sentence refers to “acts of”
    manufacture or distribution, and the venue provision expressly
    applies to “[a]ny person” who violates “this section”—any part
    of it. Cf. Koons Buick, 
    543 U.S. at
    60–62. Read as a whole,
    that naturally captures the possession with intent to distribute
    offense as well.
    And it has to include the possession offense to be
    workable. As this case illustrates, possession with the intent to
    distribute and distribution are commonly charged together, and
    the evidentiary proof may overlap extensively if not entirely
    (as it does in this case). Yet Congress surely did not intend its
    mandatory venue provision to force the government in a case
    under Section 959 to prosecute its distribution charge in one
    district court, and its possession with intent to distribute charge
    in another. See 
    18 U.S.C. § 3237
    ; Fed. R. Crim. P. 18; United
    States v. Barrett, 
    153 F. Supp. 3d 552
    , 561 n.7 (E.D.N.Y. 2015)
    (“Venue must be proper for a particular count before an
    analysis about joinder would be appropriate.”) (citing Wayne
    R. LaFave et al., Criminal Procedure § 16.1(f) (3d ed. 2007)).
    Given the unsavoriness of roping off the possession
    offense for distinct venue treatment, the majority opinion
    proposes as a “reasonable reading” of the statute that the court
    carve all three of Section 959(b)’s offenses—manufacture,
    distribution, and possession—out of the venue provision
    9
    “when those crimes are committed domestically.” Maj. Op. at
    6. But I am not at all sure what statutory text the majority
    opinion is “reading” when it takes that tack. Section 959(c)
    could not be clearer: “Any person who violates this section”
    “shall be” tried in accordance with Section 959(c)’s venue
    provision. There is nothing ambiguous or caveated about that.
    Nor is there any textual hook for bifurcating Section 959(c)’s
    singular and comprehensive venue provision into two very
    different venue assignments. As strong as it is, the presumption
    against extraterritoriality is supposed to be a tool for
    construing, not emending, statutory text.
    *****
    All of that is a long way of saying that the arguments in
    favor of extraterritoriality are, in my view, quite strong. Which
    presumably is why the two other circuits to have addressed this
    question have held that Section 959(b)(2)’s possession with
    intent to distribute offense applies extraterritorially. Epskamp,
    832 F.3d at 162; United States v. Lawrence, 
    727 F.3d 386
    , 391–
    395 (5th Cir. 2013).
    In my view, we need not and should not create an inter-
    circuit conflict in this case. That is because, for the reasons the
    majority opinion elsewhere explains (Maj. Op. at 9–10),
    Thompson and Knowles’ convictions stand regardless. The
    error (if any) in charging the extraterritorial possession with
    intent to distribute conspiracy was harmless because the
    evidence of that conspiracy was entirely coextensive with the
    proof of a conspiracy to distribute, which was also charged in
    this case and falls within the jury’s general verdict. See United
    States v. Powell, 
    334 F.3d 42
    , 45 (D.C. Cir. 2003).
    For those reasons, I join Part II of the majority opinion in
    full, but as to Part I, I respectfully concur in the judgment only.