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United States v. Knowles

United States District Court, District of Columbia

June 16, 2016

UNITED STATES OF AMERICA
v.
DWIGHT KNOWLES, ORAL GEORGE THOMPSON, Defendants.

          MEMORANDUM OPINION & ORDER

          AMY BERMAN JACKSON United States District Judge

         Defendants Dwight Knowles and Oral George Thompson are charged in a one-count indictment with conspiring to distribute and to possess with intent to distribute at least five kilograms of cocaine on board an aircraft registered in the United States, in violation of 21 U.S.C §§ 959(b) (2012)[1] (substantive offense); 21 U.S.C. § 963 (conspiracy); and 18 U.S.C. § 2 (aiding and abetting). See Redacted Indictment [Dkt. # 17]. The crimes for which defendants have been charged carry a mandatory minimum sentence of ten years of incarceration and a maximum penalty of life imprisonment. 21 U.S.C. § 960(b)(1)(B).

         The defendants have each filed motions to dismiss the indictment. Def. Thompson’s Mot. to Dismiss Indictment [Dkt. # 120] (“Thompson Mot.”); Def. Knowles’s Mot. to Dismiss Indictment [Dkt. # 128] (“Knowles Mot.”). Both point out that until their arrest and detention in this case, they had never stepped foot in the United States, and that the drugs that the government alleges that they conspired to transport were not destined for the United States. So the only nexus to the United States in this case is that the airplane that defendants allegedly used in furtherance of the conspiracy was registered in the United States.

         Both defendants argue that bringing them before a court in the United States to answer charges of United States law violates the Due Process Clause. Thompson Mot. at 1; Knowles Mot. at 10-12. Knowles has also advanced the position - which Thompson has adopted - that the statute involved in this case does not authorize an exercise of extraterritorial jurisdiction over the offense of possession with intent to distribute, as opposed to distribution, and that Congress lacked the power to “criminalize criminal activity with no nexus to the United States” in any event. Knowles Mot. at 1-2; Mot. to Join & Adopt Mot. of Codefendant [Dkt. # 137]; Min. Entry (May 19, 2016) (noting that the Court granted Thompson’s motion to adopt Knowles’s motion). The government opposes both motions. Gov’t’s Mem. in Opp. to Thompson Mot. [Dkt. # 123] (“Opp. (Thompson)”); Gov’t’s Mem. in Opp. to Knowles Mot. [Dkt. # 130] (“Opp. (Knowles)”). Defendant Knowles replied in support of his motion; Thompson did not file a reply. See Def. Knowles Reply in Supp. of Knowles Mot. [Dkt. # 132] (“Knowles Reply”).

         Defendants have raised important questions about the proper interpretation of 21 U.S.C. § 959 (2012), the limits of Congress’s enumerated powers to criminalize acts that take place on foreign soil, and whether prosecutions based on the statute comport with due process. But the Court finds that both of the motions to dismiss must be denied. The text of the provision that creates extraterritorial jurisdiction - criminalizing an “act of distribution” that occurs on foreign soil, see 21 U.S.C. § 959(c) (2012) - and the structure of the statute as a whole reflect Congress’s intention to reach possession with intent to distribute. Further, the commerce clause of the United States Constitution gave Congress the authority to enact section 959(b). Finally, defendants’ due process arguments fail because an international treaty placed both on notice that the alleged conduct in this case could subject them to prosecution in a foreign state. The Court notes that its ruling on the due process question rests on its reading of United States v. Ali, 718 F.3d 929 (D.C. Cir. 2013), and the existence of the treaty, and that the government has not pointed to any facts other than the registration of the airplane to justify the exercise of United States jurisdiction over these particular defendants. See Notice of Gov’t’s Position [Dkt. # 131] (“Gov’t Notice”) at 1.

         BACKGROUND

         I. Factual Background

         The government alleges that the defendants “are members of a high-level drug transportation organization responsible for conspiring to transport on board aircraft registered in the United States multi-thousand kilogram quantities of cocaine.” Status Report Regarding Gov’t’s Extradition Reqs. to Colombia [Dkt. # 22] ¶ 2. The government’s evidence at trial will consist of “email communications obtained pursuant to federal search warrants in this investigation, lawful wiretaps in Colombia, information from confidential sources, consensually-recorded conversations, and documents and photographs provided to the Government by Bahamian, Haitian, and Colombian law enforcement authorities.” Id. That evidence will allegedly show that “between May 2011 and December 2012, the Defendants and others arranged to transport between 2, 400 and 4, 500 kilograms of cocaine on-board the United States registered aircraft bearing tail number N157PA . . . from the Colombia-Venezuela border to Honduras.” Id.

         The government has summarized defendants’ roles in the alleged conspiracy as follows:

[F]rom on or about at least May 2011 to December 12, 2012, Defendants Thompson and Knowles, while based in Santa Marta, Colombia, entered into an agreement with various co-conspirators, to include, but not limited to, pilot Dario Davis and drug-trafficker Trevor Ferguson, both based in Nassau, Bahamas, to transport large quantities of cocaine. Defendant Thompson utilized his contacts in Colombia and Venezuela - to include cocaine brokers, investors, sources of supply, and members of drug trafficking organizations - to attempt to arrange various cocaine transportation transactions, including the transportation of large quantities of cocaine via boat, aircraft, and shipping containers in furtherance of this conspiracy. As part of this conspiracy, Defendants Thompson and Knowles worked together to attempt to utilize various aircraft to traffic cocaine, including U.S. registered and foreign registered aircraft, primarily located in the United States, the Bahamas, the Dominican Republic, Panama, and Belize. One aircraft, among others, that the Defendants conspired to use to traffic narcotics was a U.S. registered aircraft with tail number N157PA that was ultimately detained and seized in Haiti, resulting in the arrest of Dario Davis and Trevor Ferguson.

Opp. (Thompson) at 2; Opp. (Knowles) at 2.

         II. Procedural History

         The defendants were indicted, under seal, [2] on December 12, 2012, and charged with one count of conspiring, “in the Bahamas, Colombia, Haiti, Honduras, Venezuela, the Dominican Republic, and elsewhere . . . to knowingly and intentionally, on board an aircraft registered in the United States or owned by a United States citizen, distribute, and possess with intent to distribute, five kilograms or more of a mixture and substance containing a detectable amount of cocaine, ” in violation of 21 U.S.C. §§ 959(b) (2012), 960(b)(1)(B), 963, and 18 U.S.C. § 2. Sealed Indictment [Dkt. # 3]. Defendant Thompson - a Jamaican citizen residing in Colombia - was extradited to the United States on or around March 28, 2014, see Arrest Warrant (Thompson) [Dkt. # 39], and defendant Knowles - a Bahamian citizen also residing in Colombia - was extradited on or around September 25, 2014. See Arrest Warrant (Knowles) [Dkt. # 49].

         Defendant Thompson filed a motion to dismiss the indictment on February 12, 2016, Thompson Mot., and defendant Knowles filed a motion to dismiss the indictment on April 11, 2016. Knowles Mot. The government has opposed both motions. Opp. (Thompson); Opp. (Knowles). The Court held a hearing on the motions on May 19, 2016. Min. Entry (May 19, 2016).

         Defendant Thompson initially challenged the indictment on due process grounds. He asserts that “under the circumstances, bringing Thompson before a court in the United States to answer charges of United States law violates the Due Process Clause, ” because he “could not have ‘reasonably anticipate[d]’ that his conduct could result in ‘being haled into court in this country.’” Thompson Mot. at 1, 6, quoting Ali, 718 F.3d at 944. He maintains that there is “no nexus between his actions abroad and the United States, ” and he submits that the prosecution in the United States is unfair under the particular factual circumstances of the case:

[H]e is a Jamaican citizen residing in Colombia, not the United States. Prior to his extradition, he had neither entered the United States nor had any contact with the United States. None of the alleged criminal conduct occurred within the United States. None of the alleged communications occurred with anyone located in the United States. No financial assets were deposited into, withdrawn from, or interacted with the United States monetary system. No alleged coconspirators were recruited from, nor managed by, any person located in the United [S]tates. In fact, it appears that none of the conspiratorial conduct occurred within the United States.

Id. at 5.

         Defendant Knowles raised three challenges to his prosecution in the United States. First, he argues that the indictment must be dismissed insofar as it alleges conspiracy to possess narcotics with intent to distribute because while the substantive provision, 21 U.S.C. § 959(b) (2012), proscribes manufacture, distribution, and possession aboard an aircraft registered in the United States, the provision that provides for extraterritorial jurisdiction, 21 U.S.C. § 959(c) (2012), reaches only “acts of manufacture or distribution.” Knowles Mot. at 3-7. Second, Knowles contends that section 959(b) is unconstitutional because Congress lacked the enumerated power to criminalize “drug trafficking on board a United States registered airplane without limitation.” Id. at 7-10.[3] Finally, Knowles asserts that the prosecution violates his due process rights because there is not a “sufficient nexus between the defendant and the United States, ” and so the application of section 959(b) to his conduct would be “arbitrary or fundamentally unfair.” Id. at 10-12, quoting United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011).

         The government responds that “Knowles’s interpretation of the statute is contrary to the statute’s plain language and history, as well as rules of statutory construction.” Opp. (Knowles) at 4. It argues that section 959(b) was authorized by Congress’s enumerated power to regulate foreign commerce, and that it is necessary and proper to implement the treaty power. Id. at 9-11. Finally, it contends that the due process arguments should fail because the defendants “cannot reasonably claim that [they] did not know [their] conduct was illegal, as ‘drug trafficking is condemned universally by law-abiding nations, ’” Opp. (Thompson) at 6, quoting United States v. Suerte, 291 F.3d 366, 371 (5th Cir. 2002), and because “there is nothing arbitrary or fundamentally unfair about haling [defendants] into U.S. court for conspiring to use U.S. aircraft to traffic cocaine.” Opp. (Knowles) at 14.

         STANDARD OF REVIEW

         A criminal defendant may move to dismiss an indictment before trial based on a “defect in the indictment, ” such as the “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B). But a dismissal of an indictment “is granted only in unusual circumstances, ” because “a court’s ‘use[] [of] its supervisory power to dismiss an indictment . . . directly encroaches upon the fundamental role of the grand jury.’” United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015), quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995). For an indictment to sufficiently state an offense, it need only “inform the defendant of the nature of the accusation against him, ” id. at 148-49, quoting United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001), or, in other words, it must inform the defendant of “the precise offense of which he is accused so that he may prepare his defense.” United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014). Constitutional objections that challenge the validity of the charge are properly brought under Rule 12. See United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973).

         Under the Federal Rules of Criminal Procedure, an indictment must contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c). “When considering a motion to dismiss an indictment, a court assumes the truth of [the government’s] factual allegations.” Ballestas, 795 F.3d at 149, citing Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952).

         ANALYSIS

         The statutory provision at the heart of this case, 21 U.S.C. § 959(b) (2012), is entitled “Possession, manufacture, or distribution by person on board aircraft, ” and it provides:

It shall be unlawful for any United States citizen on board any aircraft, or any person on board any aircraft owned by a United States citizen or registered in the United States, to -
(1) manufacture or distribute a controlled substance or listed chemical; or
(2) possess a controlled substance or listed chemical with intent to distribute.

21 U.S.C. § 959(b) (2012).

         In a section entitled “Acts committed outside territorial jurisdiction of United States; venue, ” the statute addresses extraterritorial jurisdiction:

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 Colombia.

21 U.S.C. § 959(c) (2012).

         I. The Court has jurisdiction over the defendants.

         The starting point for the consideration of the pending motions in this case is the “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010), quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991); see also id. (“When a statute gives no clear indication of an extraterritorial application, it has none.”); Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664 (2013). As the D.C. Circuit has explained, though, this principle “represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit on upon Congress’s power to legislate, ” so “notwithstanding the presumption against extraterritoriality, a statute will be construed to apply extraterritorially if Congress gives a ‘clear indication’ of that intention.” Ballestas, 795 F.3d at 144, quoting Nat’l Austl. Bank, 561 U.S. at 255.

         In the only criminal statute at issue in defendants’ motions, Congress was unequivocal about what it had in mind:

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) (2012). And in Ballestas, the Court of Appeals held that when a substantive offense is covered by an express extraterritoriality provision, the charge of conspiracy to commit the offense has the same extraterritorial reach. 795 F.3d at 144; see also Ali, 718 F.3d at 939. So there is no dispute that under the precedent that is binding on this Court, the Court has extraterritorial jurisdiction over the prosecution of these defendants for conspiring to distribute a controlled substance on board an aircraft registered in the United States in violation of 21 U.S.C. §§ 959(b) (2012), 960(b)(1)(B), and 963.

         But the indictment charges the defendants with conspiring both to distribute and to possess with intent to distribute the cocaine. See Redacted Indictment. While there is no question that section 959(b) proscribes both the distribution of, and the possession with intent to distribute, a controlled substance on board a U.S. registered aircraft, the extraterritoriality provision in section 959(c) specifies only that it is intended to reach “acts of manufacture or distribution” outside of the United States. 21 U.S.C. §§ 959(b), (c) (2012). Because “when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms, ” Nat’l Austl. Bank, 561 U.S. at 265, defendants argue that the indictment must be dismissed, at least in part, to eliminate possession with intent to distribute as an alternative object of the conspiracy, since Congress did not clearly express its intention to reach that offense outside of the United States. Knowles Mot. at 7.

         Another court in this district has recently rejected this argument. See United States v. Bodye, No. 11-cr-110 (JDB), 2016 WL 1091058, at *2-4 (D.D.C. Mar. 21, 2016). Based upon its analysis of the text of the provision and the structure of the statute as a whole, this Court reaches the same conclusion. Section 959 provides the necessary “clear indication” that Congress intended to extend the court’s jurisdiction beyond U.S. borders to reach the offense charged in the indictment. See id.; see also Ballestas, 795 F.3d at 144, quoting Nat’l Austl. Bank, 561 U.S. at 255.

         First of all, the plain language of the jurisdictional provision in subsection 959(c), “this statute is intended to reach acts of manufacture or distribution” - as opposed to, for example, “this statute is intended to reach the manufacture or distribution” - is broad enough to express an intention to reach possession with intent to distribute and certainly conduct in furtherance of a conspiracy to possess with intent to distribute. See 21 U.S.C. § 959(c) (2012); see also United States v. Fawaz, slip. op. at 3 (S.D.N.Y. June 7, 2013) (observing that the phrase “acts of distribution” fairly encompasses possession with intent to distribute, and that possession may be an integral part of the process of distribution). So the Court does not need to rewrite the statute to find that it applies in this case.

         The extraterritorial design is also reflected in other aspects of section 959, and the legislature’s intent becomes quite evident when one reviews the statute in its entirety and considers its structure, context, and purpose. See Nat’l Austl. Bank, 561 U.S. at 265 (“Assuredly context can be consulted as well.”). The original version of section 959 was enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“DAPCA”), and that statute contained a core provision, section 841, that made it unlawful to manufacture, distribute, or possess with intent to distribute a controlled substance within the United States. Pub. L. No. 91-513, § 401, 84 Stat. 1236, 1260-61 (1970). Section 959, by contrast, included an express extraterritoriality provision, and it prohibited the manufacture or distribution of a controlled substance anywhere, but only if it was done with the intent or knowledge that the drugs would be unlawfully imported into the United States. Id. § 1009, 84 Stat. at 1289. So the object behind enacting section 959 was to reach conduct occurring outside the United States that would not be covered otherwise, and it was the planned importation that provided the jurisdictional hook at that time.

         When section 959 was amended in 1986, the original prohibition against manufacture and distribution with the intent to import remained embodied in section (a), and the prohibition against possession with intent to distribute was added in section (b). See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 3161, 100 Stat. 3207 (1986). But section 959 does not proscribe possession with intent to distribute in general - only the possession on board an aircraft with a U.S. nexus - and it does not proscribe possession with intent to distribute alone.

         Section 959(b), which is entitled “Possession, manufacture, or distribution by person on board aircraft, ” provides:

It shall be unlawful for any United States citizen on board any aircraft, or any person on board any aircraft owned by a United States citizen or registered in the United States, to -
(1) manufacture or distribute a controlled substance or listed chemical; or
(2) possess a controlled substance or listed chemical with intent ...

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