Interim Decision #3131

Interim Decision #3131

MATTER OF BARRETT

In Bond Proceedings Pursuant To 8 C.F.R. § 242.2(d)

A 37213802

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Decided by Board March 2, 1990

The definition of "drug trafficking crime" in 18 U.S.0 § 924(c)(2) (1988) for

purposes of determining a drug-related "aggravated felony" within the meaning of

section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)

(1988), includes state convictions for crimes analogous to offenses under the Controlled

Substances Act, 21 U.S.C. § 801 et seq. (1988), the Controlled Substances Import and

Export Act, 21 U.S.C. § 951 et seq. (1988), or the Maritime Drug Law Enforcement Act,

46 U.S.0 App. § 1901 et seq. (1988).

ON BEHALF OF SERVICE:

George W. Maugans

Acting Appellate

Counsel

ON BEHALF OF RESPONDENT:

Anna Marie Gallagher, Esquire

301 I Street, N.W.

Washington, DC 20001

BY: Milhollan, Chairman; Dunne and Morris, Board Members. Dissenting Opinion:

Vacca and Heilman, Board Members.

The Immigration and Naturalization Service has appealed from the

immigration judge's decision dated September 5, 1989, granting the

respondent's request for a bond redetermination hearing. Oral argument before this Board was held on November 7, 1989. The appeal

will be sustained, and the record will be remanded to the immigration

judge.

The respondent is a 20-year-old native and citizen of Jamaica. An

Order to Show Cause, Notice of Hearing, and Warrant for Arrest of

Alien (Form I 122S) dated August 8, 1989, alleges that the respondent

was admitted to the United States as a lawful permanent resident on

September 12, 1980, at Miami, Florida.'

On January 19, 1989, the respondent was convicted in the District

Court of Maryland, Prince George's County, of the following offenses:

(1) two counts of possession of a controlled dangerous substance (one

count for marihuana and one count for phencyclidine) in sufficient

quantity to reasonably indicate under all circumstances an intent to

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This supersedes the original Order to Show Cause dated March 20, 1989.

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Interim Decision #3131

manufacture, distribute, or dispense in violation of article 27, section

286 of the Annotated Code of Maryland; (2) two counts of possession

of a controlled dangerous substance (one count for marihuana and one

count for phencyclidine) in violation of article 27, section 287 of the

Annotated Code of Maryland; and (3) possession with intent to use

drug paraphernalia to contain a controlled substance in violation of

article 27, section 287A of the Annotated Code of Maryland_ He was

sentenced to 3 years' probation.

The respondent is charged with deportability under section

241(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C.

§ 1251(a)(4)(B) (1988), for conviction of an "aggravated felony," and

under section 241(a)(11) of the Act, for conviction of a controlled

substance violation. The Service determined that the respondent was

to be continued in custody without bond pursuant to section 242(a)(2)

of the Act, 8 U.S.0 § 1252(a)(2) (1988), which precludes the release of

an alien convicted of an "aggravated felony" as defined in section

101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988). On the reverse

side of his Order to Show Cause the respondent signed a request for

redetermination of his custody status by the immigration judge. In a

decision dated September 5, 1989, the immigration judge found that

the respondent had not been convicted of an aggravated felony and

therefore was not barred from release from Service detention under

section 242(a)(2) of the Act. He granted the respondent's request for a

redetermination hearing. On September 12, 1989, the immigration

judge conducted the redetermination hearing and set bond at $5,000,

which the respondent posted. This appeal by the Service followed.

The Immigration and Nationality Act was amended by the AntiDrug Abuse Act of 1988, Pub. L. No. 100 - 690, 102 Stat. 4181

(effective Nov. 18, 1988), to include certain provisions relating to

aliens convicted of an "aggravated felony."

Section 241(a)(4)(3) of the Act, added by section 7344 of the AntiDrug Abuse Act of 1988, 102 Stat. at 4470-71, renders deportable an

alien who is "convicted of an aggravated felony at any time after

entry."

Section 242(a)(2) of the Act, added by section 7343(a) of the Anti-

Drug Abuse Act of 1988, 102 Stat. at 4470, states:

The Attorney General shall take into custody any alien convicted of an aggravated

felony upon completion of the alien's sentence for such conviction. Notwithstanding

subsection (a),2 the Attorney General shall not release such felon from custody.

Section 101(a)(43) of the Act, added by section 7342 of the Anti2

This reference should be to "paragraph (1)" rather than to "subsection (a)."

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Interim Decision #3131

Drug Abuse Act of 1988, 102 Stat. at 4469-70, defines the term

"aggravated felony" as follows:

The term "aggravated felony" means murder, any drug trafficking crime as defined

in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any

firearms or destructive devices as defined in, section 921 of such title, or any attempt

or conspiracy to commit any such act, committed within the United States.

Title 18 section 924(c)(2) of the United States Code as amended by

section 6212 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4360,

defines the term "drug trafficking crime":

For purposes of this subsection, the term "drug trafficking crime" means any felony

punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the

Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the

Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

Thus, with respect to drag-related offenses, an "aggravated felony"

is "any drug trafficking crime," i.e., "any felony punishable under" the

three statutes enumerated in 18 U.S.C. § 924(c)(2) (1988). 3

On appeal the Service contends that the definition of "drug

trafficking crime" in 18 U.S.C. § 924(c)(2) encompasses state as well

as federal crimes. The Service argues that a state law conviction is

"punishable" within the meaning of 18 U.S.C. § 924(c)(2), provided

"the elements of the crime resulting in the conviction in state court

would have rendered the defendant capable or liable to punishment

under one of the three statutes enumerated" in section 924(c)(2).

Specifically, the Service contends that the elements of the respondent's

state law convictions for "possession of a controlled dangerous

substance in sufficient quantity to reasonably indicate under all

circumstances an intent to manufacture, distribute, or dispense" in

violation of article 27, section 286 of the Annotated Code of Maryland

satisfy the elements for a conviction under 21 U.S.C. § 841(a)(1)

(1988) of the Controlled Substances Act and are therefore "aggravated

felonies."4 Accordingly, the Service contends, the immigration judge

3For further amendments of the Immigration and Nationality Act by the Anti-Drug

Abuse Act of 1988 concerning the term "aggravated felony" see 2 C. Gordon & S.

Mailman, Irnmi,gration Law and Procedure § 4.17, at 4-156.1 (rev. ed 1989).

4 The Service does not allege that the respondent's convictions for possession of a

controlled substance and possession with intent to use drug paraphernalia to contain a

controlled substance under article 27, sections 287 and 287A, of the Annotated Code of

Maryland are aggravated felonies.

Title 21 section 841(a)(1) of the United States Code provides in part:

Except as authorized by this subchapter, it shall be unlawful for any person

knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance ....

173

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erred in finding the respondent eligible for release from Service

custody under section 242(a)(2) of the Act. 5

In all cases involving statutory construction, the starting point must

be the language employed by Congress, and it is assumed that the

legislative purpose is expressed by the ordinary meaning of the words

used. INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v.

Phinpathya, 464 U.S. 183, 189 (1984). 6

The resolution of the question whether state crimes are included in

the definition of "drug trafficking crime" depends on whether the

phrase "punishable under" is properly read as limiting the definition

to "convictions under" the federal laws listed in 18 U.S.C. § 924(c)(2),

or whether the definition is satisfied by proving a conviction that

includes all the elements of an offense for which an alien "could be

convicted and punished" under the cited federal laws.

We find no prior conviction requirement in the term "punishable

under" in 18 U.S.C. § 924(c)(2). To the contrary, Congress's choice of

the term "punishable under" plainly avoids such a narrow interpretation.

In a 1985 case, Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479,

the Supreme Court interpreted the term "punishable under" in a

statutory scheme similar to the one before us. The Racketeer

Influenced and Corrupt Organizations statute ("RICO"), enacted as

Title IX of the Organized Crime Control Act of 1970, Pub. L. No. 91452, § 901(a), 84 Stat. 922, 941-48, codified at 18 U.S.C. § 1961-1968

(1982), defines "racketeering activity" to mean, in part, "any offense

involving ... the felonious manufacture, importation, receiving,

concealment, buying, selling, or otherwise dealing in narcotic or other

dangerous drugs, punishable under any law of the United States." 18

U.S.C. § 1961(1)(D) (emphasis added). At issue in Sedima was

whether a civil action to recover treble damages under 18 U.S.C.

§ 1964(c) could proceed only against a defendant who had already

been convicted of a predicate act of racketeering activity or a RICO

5 It is unclear from the Service's Notice of Appeal to the Board of Immigration

Appeals (Form EOIR-26) and brief on appeal whether, in addition to the bond appeal,

the Service is attempting to challenge the immigration judge's preliminary finding in

deportation proceedings with respect to the respondent's deportability under section

241(a)(4)(B) of the Act. The Service states in its Notice of Appeal and brief that the

immigration judge erred in finding that the respondent was not convicted of an

aggravated felony "under section 241(a)(4)(B) of the Act." Regardless, an appeal

concerning the deportation charge at present would be interlocutory in nature and will

not be addressed. See Matter of Ruiz-Campuuuto, 17 I&N Dec. 108 (BIA 1979); Matter

of Ku, 15 I&N Mc. 712 (BIA 1976); Matter of Sacco, 15 I&N Dec. 109 (BIA 1974).

Section 241(a)(4)(B) of the Act is not directly in issue in this appeal.

6 The Anti-Drug Abuse Act of 1988 was submitted without a Senate or House Report.

See 1988 U.S.CC.A.N. 5937.

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violation. In reversing the United States Court of Appeals for the

Second Circuit, the Supreme. Court found no prior conviction

requirement in the definition of "racketeering activity." The Court

stated:

The language of RICO gives no obvious indication that a civil action can proceed

only after a criminal conviction. The word "conviction" does not appear in any

relevant portion of the statute. To the contrary, the predicate acts involve conduct

that is "chargeable" or "indictable," and "offense[s]" that are "punishable," under

various criminal statutes, As defined in the statute, racketeering activity consists not

of acts for which the defendant has been convicted, but of acts for which he could be.

Sedima, S.P.R.L. v. Imrex Co., Inc., supra, at 488 (citations omitted).

In sum, the Supreme Court in Sedima determined that the phrase

"punishable under any law of the United States" did not mean

"convicted under" these laws but instead referred to conduct for which

one "could be convicted" under these laws. Similarly, we do not limit

the phrase "punishable under" to mean "convicted under" the

enumerated statutes in 18 U.S.C. § 924(c)(2) in the case before us. If

Congress had wanted only convictions under the cited federal statutes

to serve as aggravated felonies with respect to drug offenses, it could

have said so quite simply. Instead. Congress referred to felonies

"punishable under" not "convictions obtained under" those statutes.

As such, we find that the definition of "drug trafficking crime" at I

U.S.C. § 924(c)(2), as incorporated into the Immigration and. Nationality Act by section 101(a)(43) of the Act, includes a state conviction

sufficiently analogous to a felony offense under the Controlled

Substances Act, the Controlled Substances Import and Export Act, or

the Maritime Drug Law Enforcement Act.

This more expansive reading of the phrase "punishable under" is

consistent with the spirit and purpose of the Anti -Drug Abuse Act of

1988. This act is one of several comprehensive pieces of legislation in

recent years designed to stiffen the penalties for drug-related offenses

"in an effort to combat a national drug problem of epidemic

proportion." United States v. Property Known as 6109 Grubb Road,

890 F.2d 659, 665 (3d Cir. 1989) (Greenberg, J., dissenting). In these

acts "Congress has sent out a clear message that narcotics offenses are

to be dealt with harshly." Id. In the federally controlled area of

regulating the conduct of aliens in the United States, it is unreasonable

to assume that Congress, in choosing the definition of "drug trafficking crime" at I8 U.S.C. § 924(c)(2), sought to differentiate between

aliens convicted of similar drug-related offenses on the basis of

whether the conviction was accomplished under state or federal law.

Inclusion of state crimes in the definition of "drug trafficking

crime" is also consistent with the Immigration and Nationality Act

read as a whole. Congress chose to append the new ground of

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deportability relating to aggravated felons to section 241(a)(4) of the

Act which has always been read to include state crimes. Absent a clear

intent to depart from the prior undisputed inclusion of state crimes

under section 241(a)(4), we find no reason to believe that Congress, in

adding the aggravated felony provision to this section, meant to

exclude state drug-related crimes when it chose the definition of "drug

trafficking crime" at 18 U.S.C. § 924(c)(2).

Furthermore, the Immigration and Nationality Act generally does

not attach different treatment to state and federal drug offenses with

respect to excludability, deportability, or the negative effect of a drug

conviction on various forms of relief from exclusion or deportation.

See sections 212(a)(23) and 241(a)(11) of the Act, 8 U.S.C.

§§ 11 82(a)(23) and 1251(a)(11) (1988); Matter of Hernandez Ponce, 19

I&N Dec. 613 (BIA 1988). Limiting the definition of "aggravated

felony" to certain federal drug-related offenses would discriminate

between state and federal drug crimes for the purpose of bond,

deportability, and voluntary departure in a way previously unknown

in the Act.'

We also find merit to the Service's argument that limiting the

definition of "drug trafficking crime" to convictions under the cited

federal statutes would render largely meaningless, as far as state

involvement, section 242A(a) of the Act, 8 U.S.C. § 1252a(a) (1988),

relating to special deportation proceedings for aliens convicted of

aggravated felonies, and section 242(a)(3)(A), concerning the implementation of a program to train Service officers and to provide

federal, state, and local access to the investigative resources, of the

Service for the purpose of identifying aliens arrested or charged for

aggravated felonies.

Section 242A(a) of the Immigration and Nationality Act, added by

102 Stat. at 4471,

section 7347(a) of the Anti-Drug Abuse Act of 1988,

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,

states in part:

The Attorney General shall provide for the availability of special deportation

proceedings at certain Federal, State, and local correctional facilities for aliens

convicted of aggravated felonies ....

7 As noted by the Service, one result of reading the definition "drug trafficking crime,"

and therefore of "aggravated felony," as excluding application to state drug-related

crimes is that aliens convicted of drug-related offenses under state law might be eligible

for voluntary departure while aliens convicted of offenses under the Controlled

Substances Act, the. Controlled Substances Import and Export Act, or the Maritime Drug

Law Enforcement Act would be ineligible. Section 244(e)(2) of the Act, 8 U.S.C.

§ 1254(e)(2) (1988), added by section 7343(b)(2) of the Anti-Drug Abuse Act of 1988,

102 Stat. at 4470, provides that "[t]he authority contained in paragraph (1) [relating to

voluntary departure] shall not apply to any alien who is deportable because of a

conviction for an aggravated felony."

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Section 242(a)(3)(A) of the Immigration and Nationality Act, added

by section 7343(a) of the Anti-Drug Abuse Act of 1988, 102 Stat. at

4470, states in part:

The Attorney General shall devise and implement a system(i) to make available, daily (on a 24-hour basis), to Federal, State, and local

authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;

(ii) to designate and train officers and employees of the Service within each

district to serve as a liaison to Federal, State, and local law enforcement and

correctional agencies and courts with respect to the arrest, conviction, and release of

any alien charged with an aggravated felony ....

In the context of an "Anti-Drug Abuse" Act, the principal purpose

of which is to "prevent the manufacturing, distribution, and use of

illegal drugs," we are unpersuaded that Congress did not intend the

state and local involvement of these provisions to extend to state drug

offenses.

Finally, we note that while analogizing state drug trafficking

provisions to the federal acts listed in 18 U.S.C. § 924(c)(2) is not

unproblematic, a similar objection raised by the lower court in Sedima

was rejected by the Supreme Court. See Sedima, S.P.R.L. v. Imrex Co.,

Inc., supra, at 490 (Supreme Court stating that the lower court "was of

the view that its narrow construction of the statute was essential to

avoid intolerable practical consequences"). Indeed, the "practical

consequences" here are less problematic than those contemplated in

Sedima. In the aggravated felony cases there is at least a state

conviction. The aggravated felony bond provision at section 242(a)(2)

of the Act and the aggravated felony ground of deportation at section

241(a)(4)(B) both refer to aliens "convicted of an aggravated felony."

The anticipated analogy between state statutes and offenses under the

cited federal statutes will thus be a matter of law. In the "RICO"

scheme at issue in Sedima, no prior conviction of any type is required

of the predicate offense, and a court can therefore be called to weigh

the facts to determine whether the conduct amounts to an "offense"

"punishable under" any law of the United States. Accordingly, the

type of analysis to be performed in determining whether a state drugrelated crime is a "drug trafficking crime" is considerably less

involved than the type of analysis approved by the Court in Sedima.

Moreover, there is already a precedent in immigration proceedings

similar to the type of analogy called for here. Matter of McNaughton,

16 I&N Dec. 569, 572 (BIA 1978) (analysis to determine whether

foreign conviction is for conduct considered criminal under United

States law).

We conclude that the definition of "drug trafficking crime" for

purposes of determining drug-related "aggravated felonies" within the

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Interim Decisior #3131

meaning of the Immigration and Nationality Act encompasses state

convictions for crimes analogous to offenses under the Controlled

Substances Act the Controlled Substances. Import and Export Act, or

the Maritime I 'rug Law Enforcement Act. We therefore reverse and

remand to the immigration judge to determine whether the respondent's convictir n for "possession of a controlled dangerous substance

in sufficient qu ntity to reasonably indicate under all circumstances an

intent to manes acture, distribute, or dispense, a controlled dangerous

substance" in iolation of article 27, section 286 of the Annotated

Code of Maryk ad includes all the elements necessary for a conviction

under 21 U.S. 1 § 841(a)(1), as argued by the Service.

ORDER:

The appeal is sustained, and the record is remanded

to the ircunigrr ion judge for further proceedings consistent with the

foregoing deci: on.

DISSENTING OPINION: Fred W. Vacca, Board Member

I respectful!' dissent.

I believe tha the majority interpretation including state convictions

within the sco )e of the term "drug trafficking crime" at 18 U.S.C.

§ 924(c)(2) (lc 38), and therefore within the term "aggravated felony"

as defined in 2ction 101(a)(43) of the Immigration and Nationality

Act, 8 U.S.C. § 1101(a)(43) (1988), is unwarranted based on the

language of tt statute and its context.

The majori> y correctly states that proper statutory construction

must begin wit 1 the words used by Congress. INS v. Cardoza-Fonseca,

480 U.S 421, 4 11 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984).

However, I ca 'not find, that this first step has been satisfied by the

majority's relic nee on Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S.

479 (1985). S dima does not involve 18 U.S.C. § 924(c)(2) or the

Immigration a id Nationality Act. Nor is the language in the "RICO"

provision quo ed in part by the majority, 18 U.S.C. § 1961(1)(D)

(1982), identk Al to the language of 18 U.S.C. § 924(c)(2) at issue in

the case befc -e us. See The Racketeer Influenced and Corrupt

Organizations statute ("RICO"), enacted as Title IX of the Organized

Crime Controi Act of 1970, Pub. L. No. 91-452, § 901(a), 84 Stat. 922,

941-48, codifit d at 18 U.S.C. § 1961-1968 (1982); Sedima, S.P.R.L. v.

Imrex Co., Ir supra, at 482 n.3. The key word for the court of

appeals and ti Supreme Court in the "RICO" phrase quoted by the

majority was "offense," not the phrase "punishable under." See

Sedima, S.P.R L. v. Imrex Co., Inc., 741 F.2d 482, 486 (1984). Title 18

section 924(c: 2) of the United States Code does not speak of an

'.,

"offense," but 3f "any felony" punishable under the designated federal

statutes. The ( ourt in Sedima did not directly analyze the meaning of

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the phrase "any felony punishable under" or even of the phrase

"punishable under." The Court's interpretation of the statutes before

it, and its implication for the phrase "punishable under" in 18 U.S.C.

§ 1961, was as much based on the meaning of the word "violation" in

18 U.S.C. § 1964(c), as on the presence of the words "chargeable" and

"indictable" in 18 U.S.C. § 1961(1), and on pertinent legislative

history, none of which is present here. In sum, reference to Sedima in

no way disposes of the requirement to examine the language of the

statute at issue before us. Absent that examination, the majority's

further arguments based on the reasonableness of their interpretation

of the definition of "drug trafficking crime" at 18 U.S.C. § 924(c)(2)

are without weight.

In turning to the language at 18 U.S.C. § 924(c)(2), one notes that

there is no reference to state law, and the only statutes enumerated are

federal. Thus, the Service's claim that the definition of "drug

trafficking crime" refers to state as well as federal law is based on the

"plain meaning" of the phrase "any felony punishable under." Citing

Black's Law Dictionary, the Service states that "any felony punishable" in section 924(c)(2) is any felony "'capable' or 'liable' of being

punished under" the Controlled Substances Act, the Controlled

Substances Import and Export Act, or the Maritime Drug Law

Enforcement Act. Black's Law Dictionary 1110 (5th ed. 1979). The

Service concludes that a state law conviction is "punishable" within

the meaning of 18 U.S.C. § 924(c)(2) provided "the elements of the

crime resulting in the conviction in state court would have rendered

the defendant capable or liable to punishment under one of the three

statutes enumerated" in section 924(c)(2). Specifically, the Service

contends that the elements of the respondent's state law convictions

under article 27, section 286 of the Annotated Code of Maryland

satisfy the elements for a conviction under 21 U.S.C. § 841(a)(1)

(1988) of the Controlled Substances Act. Therefore, the Service

concludes, the respondent has been convicted of an "aggravated

felony" and is ineligible to be released from custody under section

242(a)(2) of the Act, 8 U.S.C. § 1252(a)(2) (1988).

The Service reads too much into the "plain meaning" of the word

"punishable." Using the reference cited by the Service, Black's Law

Dictionary, one finds the word "punishment" defined as

Wily fine, penalty, or confinement inflicted upon a person by the authority of the law

and the judgment and sentence of a court, for some crime or offense committed by

him, or for his omission of a duty enjoined by law.

Black's Law Dictionary, supra, at 1110. The term "punishable" simply

refers to the offense which "may be punished" or the offender who is

"liable to punishment" by the judgment and sentence of the court. See

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People v. Superior Court of the City and County of San Francisco, 116

Cal. App. 412, 414, 2 P.2d 843, 844 (1931), and cases cited therein;

Black's Law Dictionary, supra, at 1110.

Based on these definitions, the use of "punishable" in 18 U.S.C.

§ 924(c)(2) is subject to a much more direct interpretation than that

suggested by the Service: Those subject to imposition pf "any fine,

penalty, or imprisonment" under an act enumerated in section

924(c)(2) arc those convicted under that act. The respondent has not

been charged or convicted under any of the three acts listed in section

924(c)(2). The Service contends that the respondent's state court

conviction should be deemed "punishable under" 21 U.S.C.

§ 841(a)(1) (Controlled Substances Act). The respondent has not been

convicted under section 841(a)(1) and is therefore not subject to the

attendant penalties under section 841(b).' The comparison between

state and federal law urged by the Service is not indicated by the plain

meaning of the phrase "any felony punishable under" in 18 U.S.C.

§ 924(c)(2).

Moreover, even if it were determined that the use of "punishable

under" in 18 U.S.C. § 924(c)(2) is ambiguous, such ambiguity in a

criminal provision such as 18 U.S.C. § 924(c)(2) must be strictly

construed against the Government. See Bell v. United States, 349 U.S.

81, 83 (1955); United States v. Cruz, 805 F.2d 1464, 1473-74 (11th Cir.

1986); United States v. One Heckler-Koch Rifle, 629 F.2d 1250 (7th

Cir. 1980). A longstanding parallel provision exists in deportation

proceedings concerning construing ambiguities in deportation statutes

in favor of the alien. See INS v. Cardoza-Fonseca, supra, at 449; INS v.

Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128

(1964).

The majority opinion also ignores the statutory context of 18 U.S.C.

§ 924(c)(2). Section 924(c)(2) was originally designed to serve as a

definition for "drug trafficking crime" only in conjunction with 18

U.S.C. § 924(c)(1). Section 924(c)(1) is an enhanced penalty provision

for "crimes of violence" and "drug trafficking crimes" committed with

the use of a firearm. Section 924(c)(1) reads:

Whoever, during and in relation to any crime of violence or drug trafficking crime

... for which he may be prosecuted in a court of the United States, uses or carries a

firearm, shall, in addition to the punishment provided for such crime of violence or

drug trafficking crime, be sentenced to imprisonment for five years ....

Thus, the term "drug trafficking crime" comes to the Immigration

and Nationality Act, by reference in section 101(a)(43) of the Act, with

A prior state law conviction may render a defendant subject to stricter penalties

under the second offender provisions of 21 U.S.C. § 841(6). Of course, application of

these second offender provisions still requires a conviction under section 841(a).

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its own history and in an amended form presumably responsive to that

history.

Section 924(c)(I) suggests that the term "punishable under" in

section 924(c)(2) may be read as referring to the potential for

conviction under the three federal acts listed in 924(c)(2), and not

simply the potential for imposition of a fine, penalty, or imprisonment

following conviction as is suggested by reliance solely on the plain

meaning of the word "punishable." Section 924(c)(1) applies to

"[w]hoever, during and in relation to any ... drug trafficking crime

... for which he may be prosecuted in a court of the United States

" (Emphasis added.) The phrase "may be prosecuted" plainly

indicates a stage prior to conviction. Cf. United States v. James, 834

F.2d 92 (4th Cir. 1987) (defendant charged under section 924(c)(1) at

the same time he is charged with the predicate drug trafficking

offense).

Technically, federal prosecution could be brought under one of the

three federal acts listed in section 924(c)(2) based on conduct for

which an individual was convicted under state law. The double

jeopardy clause prohibits only successive prosecutions by the same

"sovereign." Health v. Alabama, 474 U.S. 82 (1985); United States v.

Wheeler, 435 U.S. 313 (1978); Bartkus v. Illinois, 359 U.S. 121 (1959).

However, the question remains whether a state court conviction alone

is sufficient to render the offense "punishable under" the Controlled

Substances Act, the Controlled Substances Import and Export Act, or

the Maritime Drug Law Enforcement Act within the meaning of

section 924(c)(2). I find that it is not.

A federal prosecution for the felony offenses at stake in section

924(c)(2) requires a grand jury indictment. The fifth amendment to the

United States Constitution requires that all prosecutions for infamous

federal crimes (i.e., federal offenses carrying a term of imprisonment

in excess of 1 year), unlike state crimes, be commenced by grand jury

indictment. U.S. Const. amend. V; Branzburg v. Hayes, 408 U.S. 665,

687-88 (1972); Fed. R. Crim. P. 7(a).2 I find no support for the

proposition that sections 924(c)(1) and (2) address prosecutions for

offenses subject to possible conviction under the three acts enumerated in 924(c)(2) where federal proceedings have not even commenced.

I reemphasize that section 924(c)(2) does not mention state crimes.

zA conviction for unlawful possession of phencyclidine with intent to manufacture,

distribute, or dispense under 21 U.S.C. § 841(a)(1) (Controlled Substances Act)—the

provision argued by the Service to be analogous to the respondent's convictions under

article 27, section 286 of the Annotated Maryland Code—is punishable under section

841(b)(1)(D) by a term of imprisonment of not more than 5 years. See 21 U.S.C.

§§ 841(a)(I), (b)(1)(D).

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A review of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4181 (effective Nov. 18, 1988), evidences that where

Congress intended to refer to state crimes it did so explicitly. "[W]here

Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the disparate

inclusion or exclusion." INS v. Cardoza-Fonseca, supra, at 432

(quoting Russello v. United States, 464 U.S. 16, 23 (1983) (quoting

United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).

One example is section 6211 of the Anti-Drug Abuse Act of 1988, 102

Stat. at 4359, which amends subsection (f) of 18 § 924, the

section in issue before us. Section 924(f) was amended to read:

(f) Whoever, with the intent to engage in conduct which ...

(2) is punishable under the Controlled Substances Act (21 U.S.C. 802 et seq.),

the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the

Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.),

(3) violates any State law relating to any controlled substance (as defined in

section 1112(b) of the Controlled Substances Act (21 U.S.C. 802(0)))

travels from any State or foreign country into any other State and acquires, transfers,

or attempts to acquire or transfer, a firearm in such other State in furtherance of such

purpose, shall be imprisoned not more than 10 years, fined in accordance with this

title, or both.

(Emphasis added.); see also Anti-Drug Abuse Act of 1988, § 4603, 102

Stat. at 4288 ("Denial of Passports to Certain Convicted Drug

Traffickers").

Furthermore, in considering the language of 18 U.S.C. § 924(c)(2)

prior to the 1988 amendment, I do not find that the purpose of

including the phrase "any felony punishable under" was to indicate

application to state drug-related convictions. Prior to amendment by

the Anti-Drug Abuse Act of 1988, 18 U.S.C. § 924(c)(2) expressly

stated that one element of a "drug trafficking crime" was that it be a

"violation of Federal law." The provision read:

For purposes of this subsection, the term "drug trafficking crime" means any felony

violation of Federal law involving the distribution, manufacture, or importation of

any controlled substance (as defined in section 1U2 of the Controlled Substances Act

(21 U.S.C. 802)).

18 U.S.C. § 924(c)(2), as amended by the Firearms Owners' Protection Act, Pub. L. No. 99-308, § 104, 100 Stat. 449, 457 (1986). The

Service contends that Congress, in deleting the specific reference to

federal law, clearly intended the statute to apply to state law. I find this

contention is without merit

Congress is presumed to know the prior construction of a statute.

1 A N. Singer, Sutherland Statutory Construction §§ 22.33, 22.35 (4th

ed. 1985); Matter of Castro, 19 I&N Dec. 692, at 695 (BIA 1988). By

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changing the statutory language of 18 U.S.C. § 924(c)(2) Congress

must have intended a different result. I find that the language merely

altered the method of defining which federal crimes are drug

trafficking crimes and does not expand the definition to include state

offenses.

Under section 924(c)(2) prior to the 1988 amendment, a drug

trafficking crime was described as an offense which met four general

conditions: it was (1) a felony (2) violation of federal law (3)

"involving the distribution, manufacture, or importation" of (4) any

controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. § 802)). This definition left to the courts to

determine which crimes were crimes "involving the distribution,

manufacture, or importation" of a controlled substance. See, e.g.,

United States v. Henry, 878 F.2d 937, 943 (6th Cir. 1989); United

States v. Torres, 862 F.2d 1025, 1030 (3d Cir. 1988); United States v.

Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988); United States v. Matra,

841 F.2d 837, 843 (8th Cir. 1988); United States v. James, supra, at 93.

Instead of attempting to broadly describe the types of federal

offenses to be considered drug trafficking crimes, the amended statute

designates those offenses as the crimes currently punished under the

Controlled Substances Act, the Controlled Substances Import and

Export Act, and the Maritime Drug Law Enforcement Act. See United

States v. Henry, supra, at 943 & n.4. As these acts are federal, the need

for a specific statement defining drug trafficking crimes as violations

of federal law is unnecessary.

Therefore, I conclude based on the language employed by Congress

in 18 U.S.C. § 924(c)(2), and the statutory context of that provision,

that a state court conviction for a drug related offense does not bring

-

that offense within the definition of "drug trafficking crime" in 18

U.S.C. § 924(c)(2).

The Service argues that this interpretation would bring absurd

results and render void other parts of the Immigration and Nationality

Act. These contentions need be addressed only briefly.

The Service contends that this conclusion nullifies the references to

state law in sections 242A(a) and 242(a)(3)(A) of the Act. The Service's

contention fails to consider that aggravated felonies include more than

just drug trafficking crimes. Murder, for example, is an aggravated

felony under section 101(a)(43) of the Act. Section 101(a)(43) does not

limit "murder" to an offense under federal law. The references to state

law in sections 242A(a) and 242(a)(3)(A) of the Act are not nullified in

that they continue to operate with respect to aliens who have been

convicted of murder under state law.

The Service also contends that one result of this interpretation is

that aliens convicted of drug-related offenses under state law might be

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eligible for voluntary departure while aliens convicted of offenses

under the Controlled Substances Act, the Controlled Substances

Import and Export Act, or the Maritime Drug Law Enforcement Act

would be ineligible. I can only conclude that Congress approved this

result where the language employed in 18 U.S.C. § 924(c)(2) and its

statutory context establishes that a state conviction for a drug-related

offense is not encompassed by the definition of "drug trafficking

crime." Furthermore, this result would occur only in exceptional

circumstances. Voluntary departure is ordinarily unavailable to any

alien who is within the provision of section 241(a)(11) because of his

conviction for a drug-related offense. See section 244(e)(1) of the Act,

8 U.S.C. § 1254(e)(1) (1988). Thus, the distinction urged by the

Service is largely irrelevant.

As I find that the respondent's state court convictions under article

27, section 286 of the Annotated Maryland Code are not drug

trafficking crimes as defined in 18 U.S.C. § 924(c)(2), I conclude they

are not aggravated felonies within the meaning of section 101(a)(43) of

the Immigration and Nationality Act. Therefore, the immigration

judge did not err under section 242(a)(2) of the Act in granting the

respondent's request for a redetermination hearing.. Accordingly, I

would dismiss the appeal.

DISSENTING OPINION: Michael J. Heilman, Board Member

I concur in the foregoing dissent.