United States v. Jose Garcia Sota ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 16, 2019 Decided January 21, 2020
No. 17-3091
UNITED STATES OF AMERICA,
APPELLEE
v.
JOSE EMANUEL GARCIA SOTA, ALSO KNOWN AS JUAN MANUEL
MALDONADO AMEZCUA, ALSO KNOWN AS ZAFADO, ALSO
KNOWN AS SAFADO,
APPELLANT
Consolidated with 17-3092
Appeals from the United States District Court
for the District of Columbia
(No. 1:13-cr-00142-1)
(No. 1:13-cr-00143-1)
Matthew B. Kaplan, appointed by the court, argued the
cause for appellants. With him on the briefs was Elita C.
Amato.
John M. Pellettieri, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Jessie K. Liu, U.S. Attorney, and Karen P.W. Seifert, Assistant
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U.S. Attorney. Elizabeth Trosman, Assistant U.S. Attorney,
entered an appearance.
Before: WILKINS, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: According to a
longstanding canon of statutory interpretation, our courts
presume that American laws do not apply outside of the United
States—unless Congress directs otherwise. Here two criminal
defendants attacked a pair of American law enforcement
officers in Mexico, killing one and wounding the other; they
now argue that the canon requires us to set aside three of the
ensuing convictions for each defendant.
After apprehension and extradition to the United States,
the defendants stood trial in the District of Columbia, and a jury
convicted each on four counts: two counts under 18 U.S.C.
§ 1114, which criminalizes the killing of an officer or employee
of the United States; one count under 18 U.S.C. § 924(c) for
using a firearm while committing a crime of violence; and one
count under 18 U.S.C. § 1116, which criminalizes the killing of
certain persons protected under international law. In this
appeal, the defendants argue that § 1114 and § 924(c) do not
apply extraterritorially; they don’t contest their convictions
under § 1116.
The defendants are correct about § 1114, which has a
purely domestic scope, but not about § 924(c), which can apply
to conduct overseas. We thus vacate their convictions under
§ 1114 and remand their cases for a limited resentencing.
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* * *
In recent years the Supreme Court has applied the canon
with increased clarity and insistence. See, e.g., RJR Nabisco,
Inc. v. European Cmty., 136 S. Ct. 2090 (2016); Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108 (2013); Morrison v. Nat’l
Australia Bank Ltd., 561 U.S. 247 (2010). The canon “rests on
the perception that Congress ordinarily legislates with respect
to domestic, not foreign, matters.” Morrison, 561 U.S. at 255.
The presumption also “serves to avoid the international discord
that can result when U.S. law is applied to conduct in foreign
countries.” RJR Nabisco, 136 S. Ct. at 2100.
But the presumption against extraterritorial application is
just a presumption. It can be overcome when Congress “has
affirmatively and unmistakably instructed that the statute will”
apply abroad. Id.
We address first 18 U.S.C. § 1114, then id. § 924(c), and
finally a sentence enhancement under id. § 924(j)(1).
1. Section 1114 provides for the punishment of anyone
who
. . . kills or attempts to kill any officer or employee of
the United States or of any agency in any branch of
the United States Government (including any member
of the uniformed services) while such officer or
employee is engaged in or on account of the
performance of official duties . . . .
18 U.S.C. § 1114. On its face, § 1114 does not speak to
extraterritorial application one way or the other, thus leaving
the presumption against extraterritoriality unrebutted.
In a number of ways the context reinforces the case against
extraterritorial application of § 1114. Nearby § 1116
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criminalizes killing a U.S. officer or employee who is otherwise
“entitled pursuant to international law to special protection
against attack upon his person, freedom, or dignity.” Id.
§ 1116(b)(4)(B). And § 1116 explicitly applies to conduct
beyond our borders. See id. § 1116(c) (delineating the statute’s
express extraterritorial scope). Here, as in United States v.
Thompson, 921 F.3d 263, 266 (D.C. Cir. 2019), Congress’s
explicit provision for extraterritorial jurisdiction in one
provision (§ 1116) militates against inferring any such
application for a closely related and nearby provision with no
such signal (§ 1114).
(In this case, one of the American law enforcement
officers—Agent Victor Avila—possessed diplomatic status,
entitling him to protection under § 1116. The other—Agent
Jaime Zapata—was only stationed in Mexico temporarily and
apparently did not have diplomatic status. Recall that the jury
found both defendants guilty under § 1116 for the attempted
killing of Avila.)
Strengthening the inference from § 1116 against
extraterritorial application of § 1114 is that Congress gave both
provisions their current form in a single statute, the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See Pub. L. 104–132, 110 Stat 1214 (1996).
Most notably, AEDPA revised the portion of § 1116 providing
for § 1116’s extraterritorial application but inserted no similar
provision into § 1114. See AEDPA §§ 721, 727.
AEDPA also modified § 1114, but not, so far as we see, in
a way that assists the government. Before AEDPA, § 1114
contained a long list of discrete categories of protected U.S.
agents working for dozens of U.S. agencies—the list occupies
a column and a half of fine print in the United States Code. See
18 U.S.C. § 1114 (1994). As a result of AEDPA, by contrast,
§ 1114 generically protects “any officer or employee of the
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United States or of any agency in any branch of the United
States Government.” 18 U.S.C. § 1114; AEDPA § 727
(amending § 1114 to its current form). The government
correctly notes that some employees in some of the categories
specifically protected under the pre-AEDPA § 1114 would
have commonly been working overseas, specifically “any
security officer of the Department of State or the Foreign
Service.” The government would have us infer extraterritorial
scope in the current, expanded and generalized version of
§ 1114 from the old § 1114’s (supposedly obvious)
extraterritorial applications.
But it’s far from obvious that the innumerable categories
used in the prior version of § 1114 covered a material number
of individuals whose work would occur only (or even largely)
overseas. Even security officers for the Department of State
and Foreign Service perform quite a range of domestic tasks, as
well as work overseas. See, e.g., History of the Bureau of
Diplomatic Security of the United States Department of State
186, 209–12 (2011), https://2009-2017.state.gov/documents/
organization/176589.pdf (describing role of security officers in
protecting foreign dignitaries in the United States as well as the
Secretary of State). Indeed, when Congress included the
security officers in § 1114, it empowered the officers to arrest
those who assaulted the foreign dignitaries the officers
protected on U.S. soil, indicating congressional intent to
legislate with respect to those officers’ domestic activities. See
Pub. L. 88–493, 78 Stat 610 (1964). Much the same is true of
those working for the “Intelligence Community,” another
category of officers listed in the pre-AEDPA § 1114 who
perform many domestic functions. Viewing it from the
opposite perspective, we see that nearly all the categories of
U.S. agents explicitly protected by the pre-AEDPA § 1114
work exclusively or at least overwhelmingly within the United
States (e.g., National Park Service officers and employees).
Accordingly, we cannot see either the pre-AEDPA’s § 1114
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protections for multiple separate categories of employees, nor
AEDPA’s switch to generic terms, as conveying any direction
to apply the statute to conduct overseas.
Similarly, the government sees significance in current
§ 1114’s parenthetical, “(including any member of the
uniformed services).” 18 U.S.C. § 1114. But at the time
Congress passed AEDPA, around 85% of U.S. military
personnel were stationed at home, so we can’t infer anything
from the group’s inclusion in § 1114. See Tim Kane, Global
U.S. Troop Deployment, 1950-2005, Heritage Foundation 1
(2006), https://www.heritage.org/defense/report/global-us-
troop-deployment-1950-2005 (collecting Department of
Defense data).
The government rests primarily on United States v.
Bowman, 260 U.S. 94 (1922). There the Supreme Court
permitted the extraterritorial application of a statute outlawing
conspiracy to defraud the government of the United States,
including, under a recent amendment, a “corporation in which
the United States of America is a stockholder.” The
amendment clearly included the U.S. Shipping Board
Emergency Fleet Corporation, the defendants’ victim, and was,
the Court said, “evidently intended to protect” precisely that
corporation, “in which the United States was the sole
stockholder.” Id. at 101–02.
The Court acknowledged the general rule that if a statute
is intended to include offenses “committed out side of the strict
territorial jurisdiction [of the United States], it is natural for
Congress to say so in the statute, and failure to do so will
negative the purpose of Congress in this regard.” Id. at 98. But
it then declared that
. . . the same rule of interpretation should not be
applied to criminal statutes which are, as a class, not
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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. The Court then proceeded to discuss a series of statutes,
unified, as the Court saw it, by the fact that “to limit their locus
to the strictly territorial jurisdiction would be greatly to curtail
the scope and usefulness of the statute,” id., citing statutes
involving enticing desertions from naval service, thwarting the
disposition of property captured as prize, bribing an officer of
the United States to violate his duty, or a U.S. consul’s
certifying a false invoice.
In this court’s most recent discussion of Bowman we rested
our finding that Congress intended extraterritorial application
largely on the great likelihood that the outlawed conduct would
occur abroad. In United States v. Delgado-Garcia, 374 F.3d
1337, 1346 (D.C. Cir. 2004), we upheld extraterritorial
application of a statute criminalizing the inducement of and
assistance with unauthorized entry into the United States,
observing, “It is natural to expect that a statute that protects the
borders of the United States, unlike ordinary domestic statutes,
would reach those outside the borders.” Id. at 1345.
The government eschews the idea that Bowman and
following cases such as Delgado-Garcia truly depend on the
high probability that the criminalized conduct would occur
abroad, and instead urges us to read Bowman as a broad rule
that “criminal statutes that protect the United States
government from harm should not be construed” to apply only
within the United States. See Appellee’s Br. 15. But such an
analysis requires treating almost all the discussion in Bowman
and Delgado-Garcia as surplusage and would purport to rebut
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the presumption against extraterritoriality in broad swaths of
the U.S. Code.
Finally, the government argues that AEDPA, in reenacting
§ 1114, implicitly adopted the Eleventh Circuit’s decision in
United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir. 1984),
finding the section applicable extraterritorially. But while we
presume that Congress knows of “well-settled judicial
construction,” United States v. Davis, 139 S. Ct. 2319, 2331
(2019), a lone appellate case hardly counts. As the Court said
in Jama v. ICE, 543 U.S. 335, 349 (2005), “Neither of the two
requirements for congressional ratification is met here:
Congress did not simply reenact [the statute] without change,
nor was the supposed judicial consensus so broad and
unquestioned that we must presume Congress knew of and
endorsed it.” So too here.
We acknowledge that since AEDPA the Second Circuit
has joined the Eleventh Circuit in finding § 1114 applicable
abroad. See United States v. Siddiqui, 699 F.3d 690, 701 (2d
Cir. 2012) (following the court’s prior decision in United States
v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011)). But neither of
those circuits addressed the striking differences between § 1114
and its neighbor § 1116 or grappled with the Supreme Court’s
recent admonitions regarding the presumption against
extraterritoriality.
Because § 1114 does not apply extraterritorially, we must
vacate the portion of the defendants’ convictions based on that
statute.
2. 18 U.S.C. § 924(c) renders criminal the use of a firearm
“in relation to any crime of violence or drug trafficking crime.”
All agree that attempted murder under § 1116 qualifies as “a
crime of violence” and that the defendants used a firearm. But
that in itself isn’t enough to establish that § 924(c) applies
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overseas—even where its application depends upon a crime of
violence that (like § 1116) indisputably applies abroad.
Section 924(c) belongs to a genus of statute that imposes
liability only if a defendant commits a predicate crime. In RJR
Nabisco, the Supreme Court faced a similar scheme established
by the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). The Court made clear that for RICO to apply to
conduct overseas, an absolute minimum is that “the predicates
alleged in a particular case themselves apply extraterritorially.”
As noted, § 1116 satisfies that criterion.
But RJR Nabisco insisted on more: affirmative evidence of
congressional intent that the umbrella crime itself (RICO there,
§ 924(c) here) should apply to conduct overseas. The Court
found such evidence in RICO’s explicit listing of named
predicate offenses that each provided explicitly for
extraterritorial application, including, for example, 18 U.S.C.
§ 351(i) (incorporated into RICO by 18 U.S.C. § 1960(1)(G));
18 U.S.C. § 1957(d)(2) (incorporated into RICO by id.
§ 1961(1)(B)). See RJR Nabisco, 136 S. Ct. at 2101–02
(invoking these and similar predicate crimes).
Section 924(c) defines a crime of violence in generic terms
as a felony which “has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.” Id. § 924(c)(3)(A). We assume that such
incorporation of a mass of crimes of violence, of which we may
assume only a handful reflect a congressional intent of
application abroad, would not satisfy RJR Nabisco. But
§ 924(c) also includes drug trafficking crimes as predicate
offenses (or at least § 924(c)’s analogy to RICO’s predicate
offenses), see 18 U.S.C. § 924(c)(2), and specifically
enumerates 46 U.S.C. § 70503. In the latter, subsection (a)
identifies forbidden drug-trafficking conduct and subsection
(b) specifies that (a) “applies even though the act is committed
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outside the territorial jurisdiction of the United States.”
Following RJR Nabisco, we believe these predicates provide
the necessary textual indication that Congress meant § 924(c)
to apply overseas “to the extent that the predicates alleged in a
particular case themselves apply extraterritorially.” 136 S. Ct.
at 2101.
Defendants would have us read § 924(c)’s reference to
crimes of violence completely separately from the reference to
particular drug crimes, so that the link that we have just
described above would not satisfy RJR Nabisco. But the two
segments are very closely linked historically. In § 924(c)’s
original form, the statute referenced only crimes of violence as
predicates. But courts applying the so-called “categorical”
approach to the term concluded that drug trafficking offenses—
despite the propensity for violence when committed with a
firearm—did not qualify as a violent felony. See generally
United States v. Burris, 912 F.3d 386, 407 (6th Cir. 2019) (en
banc) (Thapar, J., concurring) (collecting criticism of the
categorical approach). Rather than have this swath of often
violent conduct go under punished, Congress amended the
statute to explicitly include enumerated drug trafficking
offenses. See United States v. Davis, 139 S. Ct. 2319, 2331
(2019) (outlining this history). Given this history, it makes
sense to regard § 924(c)’s provisions on crimes of violence and
drug trafficking as a package; defendants’ effort to wall the
crimes of violence off from inferences largely based on the
drug trafficking provisions will not wash.
Today’s holding that § 924(c) applies extraterritorially
where linked to an extraterritorially applying predicate fits with
our decision in United States v. Ali, 718 F.3d 929 (D.C. Cir.
2013). Ali held that the government could not charge a
defendant with conspiracy to commit piracy when the conduct
occurred overseas, even though the underlying predicate charge
of piracy clearly applied to conduct outside the United States.
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See id. at 942. We started from the broad proposition that “the
extraterritorial reach of an ancillary offense like aiding and
abetting or conspiracy is coterminous with that of the
underlying criminal statute,” id. at 939, clearly a far broader
view than that of RJR Nabisco. But we held that this rule did
not hold when it came to conspiracy to commit piracy because
such conspiracy liability would violate the law of nations, and
we presume that Congress legislates with international law in
mind. See id. at 942.
That presumption, originally set forth in Murray v.
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), and
known as the Charming Betsy doctrine, is different from the
presumption against extraterritoriality. See Ali, 718 F.3d at
935. The defendants do not raise a Charming Betsy issue in
this case, and for good reason: International law’s protective
principle allows a state to exercise jurisdiction to protect its
officials overseas, which § 1116 and (in this case) § 924(c) do.
See Restatement (Third) of Foreign Relations Law § 402;
Restatement (Fourth) of Foreign Relations Law § 412. Of
course even if defendants had invoked the Charming Betsy
principle, it is only a presumption, see Ali, 718 F.3d at 942,
which § 924(c)’s affirmative textual evidence displaces.
3. 18 U.S.C. § 924(j) applies a sentencing enhancement
where a defendant commits a § 924(c) violation and “causes the
death of a person through the use of a firearm.” If the killing
“is a murder (as defined in [18 U.S.C. § 1111]),” the defendant
may “be punished by death or by imprisonment for any term of
years or for life.” Id. § 924(j)(1).
In this case, the defendants wounded one American law
enforcement officer, Agent Avila, who qualified for protection
under § 1116, and they killed another agent, Agent Zapata, who
qualified for protection only under § 1114. The defendants
argue that, once we vacate their convictions under § 1114, we
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must also vacate the jury’s finding that they caused Agent
Zapata’s death for purposes of § 924(j). We disagree.
Nothing in § 924(j) requires the predicate offense in
§ 924(c) to also encompass the death in § 924(j). Indeed,
someone can receive a § 924(j) enhancement if he commits a
drug trafficking predicate for purposes of § 924(c) and an
accidental death occurs (via a firearm) that qualifies as
manslaughter. See § 924(j)(2) (providing a punishment for
manslaughter). This means that a jury can hear evidence about
a killing solely for purposes of establishing the elements of
§ 924(j).
In this case, it’s true, the jury also learned about Agent
Zapata’s death to establish the defendants’ liability under
§ 1114. And the district court judge instructed the jury to make
a finding regarding whether the defendants caused Agent
Zapata’s death only after they found the defendants guilty of
murder under § 1114. (It made sense to require the jury to
engage in that sequential decision making because § 1114 and
§ 924(j)(1) incorporate the same definition of murder set forth
in § 1111.) But the jury would have heard the same evidence
about Agent Zapata’s death in the absence of the § 1114
charges, and the same elements of the § 924(j) charge, making
harmless any resulting error in their inclusion and the resulting
jury instructions. See Thompson, 921 F.3d at 269 (“Since no
possible prejudice could have arisen from the asserted error, we
conclude the error was harmless.”).
* * *
The defendants also contest the district court’s decision to
limit their ability to cross examine a government witness about
his prior misconduct. Like the defendants, the witness served
as a “sicario,” an assassin for the Zeta drug cartel, in which
capacity he committed many acts plausibly described by the
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defendants as heinous. And like the defendants, the witness
participated in the attack on Agents Zapata and Avila.
There is no dispute that evidence of lawlessness can
undermine the perpetrator’s probable truthfulness, but
admission of such evidence is subject to the sound discretion of
the trial court. Here the district court prevented the defendant
from interrogating the witness regarding his role in a
smorgasbord of crimes, including “kidnapping and ordering
people shot in the head, burning bodies in barrels of oil, [and]
getting into a fire fight with the Mexican army.” C.A. 344.
If there was any error in that ruling, we believe it was
rendered fully harmless by the broad range of other heinous
conduct that the court allowed defense counsel to bring out in
cross-examination. Counsel extracted from the witness
evidence about three murders he committed, in one of which
(defense counsel alleged) the witness took another gang
member “to a park to shoot him in the leg, torture him and kill
him with a blow to the head with a sword.” C.A. 395. And on
direct the jury learned that the witness worked as a sicario, led
an assassination squad, participated in the attack on Agents
Zapata and Avila, committed five carjackings, and kidnapped
three men at gunpoint on the very same day as the attack. C.A.
283, 294, 313–20.
That mass of evidence was enough to enable the jury to
assess the relation between the witness’s lawlessness and his
propensity for truthfulness; it thus rendered harmless any error
(if any error even occurred).
* * *
Because we vacate the defendants’ convictions under
§ 1114, we remand their cases for a limited resentencing in
which the district court may determine whether to modify its
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sentence in light of our vacatur. See United States v. Blackson,
709 F.3d 36, 40 (D.C. Cir. 2013).
So ordered.