United States v. Oral Thompson , 921 F.3d 263 ( 2019 )

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.