United States v. Jose Garcia Sota

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.