United States v. Oral Thompson

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.