United States v. Garcia Sota

948 F.3d 356

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

No. 17-3091

C/w 17-3092

United States Court of Appeals, District of Columbia Circuit.

Argued December 16, 2019

Decided January 21, 2020

Matthew B. Kaplan, Arlington, VA, appointed by the court, argued the cause for appellants. With him on the briefs was Elita C. Amato, Arlington, VA.

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 U.S. Attorney. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: Wilkins, Circuit Judge, and Williams and Sentelle, Senior Circuit Judges.

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.

* * * In recent years the Supreme Court has applied the canon with increased clarity and insistence. See, e.g., RJR Nabisco, Inc. v. European Cmty. , ––– U.S. ––––, 136 S. Ct. 2090, 195 L.Ed.2d 476 (2016) ; Kiobel v. Royal Dutch Petroleum Co. , 569 U.S. 108, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013) ; Morrison v. Nat’l Australia Bank Ltd. , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). The canon "rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign, matters." Morrison , 561 U.S. at 255, 130 S.Ct. 2869. 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 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 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 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, 43 S.Ct. 39, 67 L.Ed. 149 (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, 43 S.Ct. 39.

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, 43 S.Ct. 39. But it then declared that

... the same rule of interpretation should not be applied to criminal statutes which are, as a class, not 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 .,...