Tuesday, August 9th, 2016

In an Extraterritorial Duel of Canons, the Aversion to Superfluity Trumps Expressio Unius and the Presumption against Extraterritoriality.

Last week, the Second Circuit decided United States v. Epskamp, No. 15-2028.   The Court affirmed the district court’s decisions regarding the extraterritoriality of 21 U.S.C. 959.  The appeal followed a trial in front of Judge Sullivan and concerned the use of an aircraft registered in the United States as part of a scheme to fly drugs from the Dominican Republic to Amsterdam.

Section 959(b) makes it unlawful for any person on board an aircraft registered in the United States to (1) manufacture or distribute a controlled substance or (2) possess a controlled substance with intent to distribute.  [NB:  the statute has since been amended, so that the old section (b) is now section (c) and the old section (c) is now section (d).  Because the amendments did not result in substantive changes, the Court referred to the old version of the statute.]  Section 959(c), entitled “Acts committed outside territorial jurisdiction of United States; venue,” explains “This section is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States.”  The defendant argued that because subsection (c) expressly referenced only manufacture and distribution, and did not mention possession with intent, the section applied extraterritorially only in cases of manufacture and distribution.

The Second Circuit agreed that Section 959 is “perhaps an example of less than crystalline drafting,” Opinion at 21, but that “the statutory scheme and the context of the statute overcome the presumption against extraterritoriality.”  Id. at 25.  If the defendant was correct, Section 959 would have he “peculiar effect of establishing a purely domestic crime within a statute aimed at combatting international narcotics smuggling and importation where every other provision applies extraterritorially.”  Id. at 26.  Because the crime of domestically possessing with the intent to distribute a controlled substance already is proscribed by 21 U.S.C. 841, the defendant’s reading of Section 959 would “render it a redundancy within the federal statutory framework.”  Id. Although the Court did not rely on the statute’s legislative history in reaching its conclusion, the Court stated that history “confirm[ed]” the panel’s reading.

Second, the Court discussed Epskamp’s challenge regarding a defendant’s knowledge of the jurisdictional element.  As with statutes that have interstate transportation as a jurisdictional element, Section 959(b) requires only that the government prove the jurisdictional element, not the defendant’s knowledge of it.  Opinion at 35. Unlike Section 959(a), in which Congress “conjoined the knowledge/intent require with the term ‘import,’” Section 959(b) was formulated to reach all of the target conduct, regardless of the knowledge or intent of the actors with respect to the registration of the plane.  Id. at 37.  The Court further concluded that there was no due process concern in applying the statute to Epskamp’s conduct because that conduct was “self-evidently criminal.”  Id. at 43.

Comments are closed.