[00:00:00] Speaker 00: Case number 17-3091 at L, United States of America versus Jose Emanuel Garcia-Sota, also known as Juan Manuel Maldonado Ameza Pilar, also known as Safado, also known as Safado Appellant. [00:00:16] Speaker 00: Mr. Kaplan for the Appellant, Mr. Pelletier for the Appellee. [00:00:22] Speaker 03: Good morning, Mr. Kaplan. [00:00:24] Speaker 03: Good morning, Your Honor. [00:00:25] Speaker 03: My name is Matthew B. Kaplan, and I represent the post and memo Garcia Sota and also speak for the other – the co-eminent in this case. [00:00:36] Speaker 03: Your Honors, in our view, 18 U.S.C. [00:00:40] Speaker 03: 1114 does not apply outside the United States. [00:00:47] Speaker 03: in our view, is a straightforward application of Morrison and its progeny. [00:00:51] Speaker 03: If Congress has not affirmatively and unmistakably indicated that a law applies outside the United States, it does not so apply. [00:01:02] Speaker 03: What the teaching of – Morrison's teaching is that Congress cannot look [00:01:05] Speaker 03: or sorry, that a court cannot look at what Congress might have thought if it had thought about the issue. [00:01:11] Speaker 03: It must look only at whether or not there's explicit or other clear indication of extraterritoriality in the relevant statute. [00:01:23] Speaker 02: Now, of course, the government... Can I ask this clarification question? [00:01:27] Speaker 02: Sure. [00:01:28] Speaker 02: I didn't see this in your briefs, but is it your contention [00:01:32] Speaker 02: that applying it in such fashion would violate the law of nations? [00:01:41] Speaker 03: I think it would violate – you're right, Your Honor, we didn't address that issue in our brief. [00:01:44] Speaker 03: I think it would violate the law of nations. [00:01:46] Speaker 03: I mean, I think it's also clear that if there had been an explicit, clear indication of congressional intent, Congress is free to violate the law of nations if it wants to. [00:01:59] Speaker 03: But I think it would violate the law of nations applying U.S. [00:02:03] Speaker 03: law to what is essentially a street crime in Mexico. [00:02:08] Speaker 04: But you make no such claim about 1116, do you? [00:02:13] Speaker 03: No, we don't make that claim about 1116. [00:02:16] Speaker 03: We don't – the international protected person statute, we don't make such a claim. [00:02:22] Speaker 03: And again, we don't focus on – the international law focus is on Congress and whether or not there's a clear indication of congressional intent. [00:02:32] Speaker 03: The government, of course, points to Bowman and says that Bowman, as I read their brief, it says that Bowman essentially establishes an exception to Morrison and the cases that follow Morrison. [00:02:44] Speaker 03: First of all, if Bowman is inconsistent, the extent that Bowman is inconsistent with Morrison, it has been overruled by Morrison. [00:02:53] Speaker 03: But even by its terms, Bowman applies only to statutes that clearly target the US government. [00:03:02] Speaker 03: And Bowman specifically involved fraud targeting the U.S. [00:03:06] Speaker 03: government. [00:03:08] Speaker 03: 1114 is a very different statute. [00:03:10] Speaker 02: It doesn't require any... I don't read Bowman to have a specific intent requirement, though. [00:03:15] Speaker 02: I mean, the statute at issue there. [00:03:17] Speaker 02: Looking at the statute, I didn't see a knowing or intentional element in the statute. [00:03:25] Speaker 02: Did I miss it? [00:03:26] Speaker 03: I don't... [00:03:28] Speaker 03: I mean, Bowman does not refer to a knowing or intentional, does not refer to specific intent, but the crimes set out in Bowman are crimes where I think it would be, by their inherent nature, it's clear that they're targeting the U.S. [00:03:41] Speaker 03: government pretty hard to defraud. [00:03:43] Speaker 02: You're targeting, but I guess there's no requirement in Boeing that you had to know that the fraud was being perpetrated against the U.S. [00:03:53] Speaker 02: government. [00:03:54] Speaker 03: Well, Bowman doesn't address that issue, but I think the nature of the crimes in Bowman are very different than the crimes here. [00:04:01] Speaker 03: The nature of the crimes in Bowman is something that would be clear. [00:04:05] Speaker 03: It's clear that there was targeting of the US government. [00:04:08] Speaker 03: Whereas in this case, you don't have such targeting of the US government. [00:04:12] Speaker 03: You don't necessarily have that under the statute. [00:04:14] Speaker 03: And in fact, under the facts of the case, you didn't have that. [00:04:17] Speaker 03: The people who attacked these American agents did not know that they were American agents, and in fact, would not have attacked them if they had known that they were American agents. [00:04:28] Speaker 03: I think one of the key differences between this case and the statute issued in this case and Bowman is the extraordinarily broad nature of the statute. [00:04:38] Speaker 03: here. [00:04:40] Speaker 03: There's no requirement that, under this statute, under 11 and 14, there's no requirement, obviously, as we've just said, that the person, the defendant, have any knowledge that they're targeting a person connected with the U.S. [00:04:53] Speaker 03: The law encompasses persons who happen to be assisting American employees in carrying out their official duties. [00:05:00] Speaker 03: And again, there's no need that the person, the defendant, know that the person being targeted is engaged in that assistance. [00:05:08] Speaker 03: And the law encompasses not just murder, but manslaughter, which can be unintentional conduct. [00:05:17] Speaker 03: You know, as we set out in our brief, we give an example in our brief of the maid of a political officer in the U.S. [00:05:23] Speaker 03: Embassy in Columbia, for example, was sent to the supermarket to buy groceries for an official reception. [00:05:31] Speaker 03: And she was killed in the street by a drag racer. [00:05:34] Speaker 03: that under the government's interpretation of this statute would be a federal crime. [00:05:40] Speaker 04: Are you making an intent defense vis-a-vis 1116? [00:05:46] Speaker 03: No. [00:05:46] Speaker 03: The 1116 statute, we're not challenging the conviction, at least under the [00:05:57] Speaker 03: We're not challenging the extraterritorial reach of 1116. [00:06:01] Speaker 04: Our focus is on the application of 924J. [00:06:07] Speaker 04: Can the death that was found in connection with 1114 be applied in applying 924J to the convictions under 1116? [00:06:27] Speaker 03: What we've argued with the 924J conviction is that that was based on a... The jury was told it could only make a special finding that a death had resulted. [00:06:55] Speaker 03: if it convicted under 1114. [00:07:00] Speaker 04: Let's assume that was an error. [00:07:03] Speaker 04: Was it a harmless error? [00:07:07] Speaker 04: I don't believe it was a harmless error, Your Honor, because the jury was told... How would things have been different if it had occurred in connection with 1116? [00:07:18] Speaker 03: I think fundamentally, the appellants had a right to have the jury follow the instructions and make a finding. [00:07:29] Speaker 04: No, I understand that. [00:07:30] Speaker 04: But I'm just asking, can you identify any scenario under which the fact that the conviction is under 1116 makes the finding of death for purposes of 924J ineffective? [00:07:49] Speaker 03: The same death, right? [00:07:54] Speaker 03: It is the same death, Your Honor. [00:07:58] Speaker 03: In our view, the error was not harmless. [00:08:04] Speaker 03: But in any event, in our view, if the 1114 conviction is overturned, we think that the case needs to be remanded to the district court for resentencing under the remaining charge. [00:08:15] Speaker 04: What would the terms of resentencing be? [00:08:19] Speaker 03: I think that the district court would, assuming 1114 is, that conviction is vacated, I think the district court would have to reevaluate its sentencing. [00:08:30] Speaker 03: What would the terms of reevaluation be? [00:08:33] Speaker 03: I think the district court, if there was no surviving conviction for murder, I think the district court would have to evaluate whether a life sentence would be appropriate under 924C. [00:08:44] Speaker 02: Is it your contention that [00:08:49] Speaker 02: If we assume that the 1114 conviction is located, that you cannot have a life sentence, or at least a mandatory life sentence under 924J, if the predicate is 1116, attempted murder conviction? [00:09:11] Speaker 03: First of all, I think you can't have without a specific finding that there was a death. [00:09:16] Speaker 03: And I think that specific finding, special finding by the jury, [00:09:19] Speaker 03: cannot stand because it was based on jury instructions, which did not allow it. [00:09:24] Speaker 03: But even setting that aside, I think the district court would have discretion as to whether or not it wanted to impose a life sentence, and it might choose not to do so. [00:09:40] Speaker 02: All right. [00:09:40] Speaker 02: We'll give you a little bit of time on the bottle. [00:09:43] Speaker 02: We'll hear from the government. [00:09:45] Speaker 03: Thank you very much. [00:09:52] Speaker 01: May it please the court, John Pelletary from the Department of Justice on behalf of the United States. [00:09:57] Speaker 01: Both 1114 and 924C contained clear indications that Congress intended the statutes to apply extra-territorially. [00:10:08] Speaker 01: I'll start with 1114. [00:10:11] Speaker 01: This court in Delgado and applying the Supreme Court's decision in Bowman identified attributes of the statute that, if present, [00:10:20] Speaker 01: contained clear indications. [00:10:22] Speaker 05: What would Delgado have to do with this case? [00:10:24] Speaker 01: Well, Delgado applies Bowman and establishes that Bowman applies with full force to this day. [00:10:30] Speaker 05: And it applied... Well, Delgado, we're dealing with a statute which by its very nature seemed to encompass extraterritorial activity. [00:10:42] Speaker 05: That's not the case with this statute. [00:10:45] Speaker 05: Well, Your Honor, on its... Delgado already teaches anything about this fact. [00:10:48] Speaker 01: Well, Your Honor, on its face, in our view, the statute does indicate extraterritorial applications. [00:10:57] Speaker 05: How so? [00:10:58] Speaker 01: Well, I can get into a lot. [00:10:59] Speaker 01: So if you look at the time of the amendment of 1114, before EDPA in 1996, [00:11:08] Speaker 01: The statute, instead of in its present form, it contained a long list of the types of officers and employees that were contained. [00:11:18] Speaker 01: And it specifically contained any security. [00:11:20] Speaker 05: Can you tell me about the statute as it is now and tell us what it is about it that survived Morrison so far as clearly establishing extra-territoriality? [00:11:27] Speaker 05: Well, the statutory history here. [00:11:29] Speaker 05: No, no, no. [00:11:31] Speaker 05: Forget about the history. [00:11:33] Speaker 05: Well, tell me about the statute. [00:11:35] Speaker 05: The statute under Morrison, the statute has to clearly [00:11:38] Speaker 05: expressed with extra-territoriality, doesn't it? [00:11:42] Speaker 01: It does not have to contain an expressed provision of extra-territoriality. [00:11:45] Speaker 01: So in RJR Nabisco there was no expressed statement of extra-territoriality. [00:11:50] Speaker 05: What is there in this statute that indicates it applies beyond the territory of the United States? [00:11:56] Speaker 01: It's the function of the statute in applying and targeting harm to the United States government because it protects United States employees and officers during the course of performing their official duties. [00:12:08] Speaker 01: That it protects the harm and it has many obvious applications outside of the United States, in particular because it can... That just establishes that it could apply outside the United States if Congress passed a statute that did so. [00:12:21] Speaker 05: But I'm interested in what in the statute it is tells me that it applies [00:12:25] Speaker 05: You start with the assumption that U.S. [00:12:27] Speaker 05: Code title 18 applies to United States territory. [00:12:33] Speaker 05: Under Morrison, you have to have something to cause us to believe, not to just believe, but to affirmatively see that Congress extended it beyond the territory of the United States. [00:12:45] Speaker 05: And I didn't find in your brief anything pointing to the statutes that told me that. [00:12:50] Speaker 01: Well, aside from the fact that it targets harm, if you look to the way it includes the term uniform members of the armed services, and if you look to... How would that be any different if the statute is or is not extra territorial? [00:13:04] Speaker 01: Well, because I think it demonstrates Congress's intent, and that was added in 1996. [00:13:10] Speaker 01: And I would just like to point out what the statute said when Congress added that. [00:13:14] Speaker 01: It included, among the list of employees and officers that were included in the statute and protected, any security officer of the Department of State or the Foreign Service. [00:13:22] Speaker 01: It also specifically included any officer or employee of any department or agency within the intelligence community. [00:13:29] Speaker 01: I mean that shows a clear indication that Congress intended this to apply to employees abroad. [00:13:34] Speaker 01: Then when Congress amended the statute in 1996, it took away this long list and it said were any officer or employee and then it made clear that it encompasses members of the uniformed services and Congress indicated [00:13:50] Speaker 01: In the House Committee report with this, it specifically mentioned what prompted EDPA a few events. [00:13:57] Speaker 01: One of the events that it identified was the murder of William Higgins in Lebanon in, I believe, 1990. [00:14:05] Speaker 01: So together with the fact that prior to 1996, the statute specifically included security officers of the Foreign Service and the State Department. [00:14:13] Speaker 01: It included members of the intelligence community, and then Congress broadened it to include uniformed armed services, and in the legislative history specifically cited to a murder of a U.S. [00:14:25] Speaker 01: member of the armed services abroad in Lebanon. [00:14:30] Speaker 01: All of this, and all of that is on top of all of the Bowman factors, plus the fact that at the time Congress enacted [00:14:37] Speaker 01: Edpa and it revised it in 1996. [00:14:40] Speaker 01: There were the only courts to address the extraterritoriality of this statute had held clearly that it applied extraterritorially. [00:14:48] Speaker 01: We cite the Benitez decision in the 11th Circuit and in the Delgado case this court also cited the Felix Gutierrez decision in the 9th Circuit which also so held and that's at [00:15:00] Speaker 01: 940 f-second 1200 is cited in the Delgado case. [00:15:03] Speaker 01: Both those cases, prior to 1996 when Congress broadened the statute, had held that the statute applied extra-territorially. [00:15:12] Speaker 01: Under the canon that Congress is assumed to be aware of authoritative interpretation, construction of the statute, and when it amends it, and certainly when it broadens the statute, it should be deemed to... Does that canon work so only if it's like a broad [00:15:26] Speaker 02: and basically a consensus. [00:15:31] Speaker 02: You cited the one case in your brief, the 11th Circuit case. [00:15:35] Speaker 02: Now you've mentioned the 9th Circuit case, but that's far from a consensus. [00:15:40] Speaker 01: Well, it's the only decisions that addressed it, and they clearly [00:15:44] Speaker 01: plainly held, and this is not, so for example, in some of the cases that my friend has cited regarding this cannon, there's a little bit of ambiguity, there's some differences, there's complex statutory schemes. [00:15:58] Speaker 01: This is a binary issue. [00:15:59] Speaker 01: What does it apply extra-territorially or does it not? [00:16:02] Speaker 01: Two courts held clearly that it does, and at the time, and also I would note that these were not obscure cases. [00:16:09] Speaker 01: They were both reported on in the Washington Post. [00:16:11] Speaker 01: These were murders of DEA agents, [00:16:13] Speaker 01: in foreign countries that got public attention. [00:16:17] Speaker 02: Can I just ask you the same question I asked your friend on the other side? [00:16:22] Speaker 02: I didn't see it in your brief, but would this prosecution be consistent with the law of nation? [00:16:29] Speaker 01: Absolutely, Your Honor. [00:16:31] Speaker 02: Did you brief that issue? [00:16:32] Speaker 02: Did I miss it in your brief? [00:16:34] Speaker 01: Well, it's not relevant because the charming Betsy Cannon, Your Honor, holds that when applying, when determining the, and construing a statute to determine its extra-territorial effect, this court will construe a statute to the extent it can not to be inconsistent with international law. [00:16:51] Speaker 01: But the charming Betsy Cannon also makes clear that Congress is not constrained by international law. [00:16:57] Speaker 02: So even if it violates international law, Congress can't... Yeah, but what we've said in Ali and other cases is that if we can't tell if the statute's ambiguous, we look to see whether the extraterritorial application is consistent with international law. [00:17:16] Speaker 01: Yes, Your Honor. [00:17:16] Speaker 02: And when we've said that it's not, we've deemed that to be [00:17:24] Speaker 02: persuasive in finding that it shouldn't apply outside the U.S. [00:17:28] Speaker 01: And the defendants have never invoked the charming Betsy Cannon in this case, and for good reason, because the protective principle of international law allows the government to enact laws that apply abroad that protect... That's a different question. [00:17:43] Speaker 05: That rule of law to which you're applying concerns whether Congress could pass such statutes. [00:17:50] Speaker 05: It really has nothing to do with what Congress did in this case. [00:17:52] Speaker 01: Well, I'm just, in determining whether exactly Congress could, because international law permits it, therefore the Charming Betsy doesn't provide any direction in this case. [00:18:05] Speaker 05: It's not helpful one way or the other. [00:18:07] Speaker 01: No, it's not, Your Honor. [00:18:09] Speaker 01: It just doesn't provide any [00:18:13] Speaker 01: any instruction, any guidance on how to interpret the statute. [00:18:16] Speaker 01: This court has to apply all the canons of statutory interpretation to determine whether there's a clear indication of congressional intent. [00:18:25] Speaker 01: And we believe that the Bowman factors by themselves, which this court applied in Delgado, provide that clear indication. [00:18:31] Speaker 01: But there's more than Bowman. [00:18:33] Speaker 02: There's the- How do we know Bowman survives RGR, Nabisco, and Morrison? [00:18:41] Speaker 02: Granted, the Supreme Court doesn't cite Bowman at all in those cases, but it seems to go in a different direction than Bowman did as far as how we're supposed to undertake this exercise. [00:18:53] Speaker 01: Well, the court has never rejected Bowman. [00:18:56] Speaker 01: and neither as any court of appeals, as far as we're aware. [00:18:59] Speaker 01: And Bowman, in our view, is consistent with those cases, because it's one method of determining whether there's a clear indication. [00:19:08] Speaker 01: You look to all of the canons of statutory interpretation, and this is something, just like in RJR Nabisco, where you looked to the incorporation of the predicates, that was another statutory linguistic [00:19:20] Speaker 01: indication here, Bowman provides another set of circumstances, attributes of a statute that also provide guidance of Congress's clear intent. [00:19:28] Speaker 01: So in our view, Bowman is certainly reconcilable with other cases. [00:19:33] Speaker 01: It's never been overruled by the Supreme Court, certainly, or any other court of appeals has never determined that Bowman does not bind them. [00:19:40] Speaker 01: And therefore, in our view, Bowman [00:19:43] Speaker 01: determines the outcome of this case, but it's not the only thing. [00:19:47] Speaker 01: As we discussed in 1996, the language of it beforehand, the expansion, all of the statutory interpretation. [00:19:56] Speaker 05: I'm not sure why the language of it beforehand cuts in your favor. [00:20:01] Speaker 05: You might have a stronger case if that was still the language. [00:20:04] Speaker 05: If they had a list that included those security guards and such, perhaps that would be some indication. [00:20:10] Speaker 05: We're simply saying any officer in the United States. [00:20:14] Speaker 05: I'm not sure how that gets you anywhere. [00:20:17] Speaker 01: But Your Honor, it's clear that Congress expanded 1114. [00:20:20] Speaker 01: Rather than having specific lists, it's clear that what Congress intended is that not only was everything on that list going to be included, but more. [00:20:29] Speaker 05: I don't think we have that list have any relevance to the present statute. [00:20:33] Speaker 05: Congress did not reenact it. [00:20:34] Speaker 05: That's not the law anymore. [00:20:36] Speaker 01: Well, I think the statutory history, if you looked at it, so, you know, courts have... You know, Congress doesn't enact statutory history. [00:20:43] Speaker 01: Well, for example, Your Honor, and this we have to look at the statutes, don't we? [00:20:47] Speaker 01: For example, the Supreme Court has certainly looked at statutory history most recently in the Stokeland case in the Supreme Court. [00:20:54] Speaker 01: It looked to the definition of a violent felony in the Armed Career Criminal Act. [00:21:01] Speaker 01: It looked to what Congress had included in it at the time in 1986 when it defined [00:21:06] Speaker 01: violent felony to include robbery, and then it looked to the fact that Congress expanded it, and then it determined that that statutory history indicated that the definition, the force clause of the Armed Career Criminal Act, includes robbery. [00:21:21] Speaker 01: And so the same here, you have a statutory interpret, you have a statute that clearly included [00:21:26] Speaker 01: foreign officers abroad, in our view, and members of the intelligence community, Congress expanded the statute. [00:21:34] Speaker 01: It did so at a time when the only authoritative courts of appeals decisions had held, clearly, that it applied extraterritorially, and Congress didn't in any way abrogate or reject those decisions. [00:21:44] Speaker 01: And it expanded it. [00:21:45] Speaker 01: And it not only expanded it, it also made clear that it included members of the uniformed services, which plainly are going to be many of them are going to be abroad. [00:21:54] Speaker 04: Could I take you to the penalty issue briefly? [00:21:57] Speaker 04: Yes, Your Honor. [00:21:59] Speaker 04: You rely on 924J, which in turn incorporates 1111. [00:22:04] Speaker 04: And what does it tell us so far as the penalty is concerned for crimes committed outside the territory of the United States? [00:22:19] Speaker 01: Well, 924J itself incorporates 924C. [00:22:24] Speaker 01: And in terms of its extraterritorial effect, the text and context. [00:22:30] Speaker 04: It also takes us very directly to 1111, right? [00:22:36] Speaker 04: And so what do we find when we get to 1111? [00:22:39] Speaker 01: Well, Your Honor, 1111 defines the [00:22:49] Speaker 01: defines what murder is and what someone has to find in order to commit a murder. [00:22:59] Speaker 04: And then it has a provision about penalty. [00:23:02] Speaker 04: Yes, Your Honor. [00:23:04] Speaker 04: And the provision about penalty talks about the crime when committed within the special maritime and territorial jurisdiction of the United States, right? [00:23:16] Speaker 04: Yes. [00:23:16] Speaker 04: So what is left [00:23:19] Speaker 04: for the penalty for a crime that is based on extraterritorial application? [00:23:28] Speaker 01: Well, I don't think that the penalty for under 924J turns on whether it applies domestically or extraterritorially. [00:23:36] Speaker 01: It does provide that it's life, death. [00:23:38] Speaker 04: It close references 1111, right? [00:23:41] Speaker 04: Yes, Sean. [00:23:42] Speaker 04: So don't we have to concern ourselves with 1111? [00:23:45] Speaker 01: Well, it says if a person who in the course of violating 924C causes the death of a person through the use of a firearm shall [00:23:54] Speaker 01: And then it says, if the killing is murder, as defined in section 111, it doesn't encompass the penalty provisions of 1111, just the definition of murder, then shall be punished by death or any term of years or life. [00:24:07] Speaker 01: So 924J, by its terms, only incorporates the definition of murder in 1111 and not the penalties, Your Honor. [00:24:14] Speaker 01: So 924J does permit life, death, or term of years. [00:24:20] Speaker 01: Now, in our view, even if this court concludes that 1114 does not apply extraterritorially, the 924C convictions stand in any event because one of the predicates for the 924C conviction was 1116, which indisputably applies abroad. [00:24:39] Speaker 01: It applies extraterritorially. [00:24:42] Speaker 01: And because that was one of the predicates charged, [00:24:44] Speaker 01: and undoubtedly proven as a predicate for 924C, then the jury just had to find, well, was the use of a firearm, did it also cause a killing, and was that killing murder under 1111? [00:24:59] Speaker 01: And the district court instructed the jury that you basically have to find the murder in the same manner you have to find murder for the 1114 charges. [00:25:08] Speaker 04: Do you have any cases saying that a finding of a particular element for sentencing which is connected with one statute can be later attached to another statute? [00:25:22] Speaker 01: I don't think the court said you have to find an element for the other statute. [00:25:24] Speaker 01: I think the way he was phrasing it was that you have to find a murder [00:25:30] Speaker 01: under 1111 in the same manner you have to find a murder in 1114. [00:25:33] Speaker 01: So therefore if you find a murder in 1114, you have found the murder that's necessary under 924J. [00:25:39] Speaker 01: So because they both incorporate the same definition of murder under 1111, [00:25:44] Speaker 01: the court was basically saying, if you find the murder, then it's the same standard. [00:25:50] Speaker 01: And so there's really no dispute that I think the evidence clearly establishes the commission of the murder here and the penalty provision that would trigger the penalty provisions of 924J. [00:26:06] Speaker 01: And any error in also charging predicates that may be, if this court concludes at 1114, it does not apply extraterritorially. [00:26:14] Speaker 01: Any error in charging and instructing those as predicates would be harmless beyond a reasonable doubt, Your Honor. [00:26:20] Speaker 01: That's similar to what this court found in the Thompson case, where there was a conspiracy and there were three objects of the conspiracy charge. [00:26:28] Speaker 01: One, I believe, was distribution and another one was [00:26:35] Speaker 01: possession with intent to distribute, this court concluded that possession with intent to distribute does not apply extra-territorially, but the court concluded that the error was harmless because the distribution plainly applied extra-territorially and there was no basis for concluding that instructing the jury on both of those objects of the conspiracy affected the outcome of the trial here. [00:26:58] Speaker 01: And the same applies here. [00:27:00] Speaker 02: How does it apply here when the 1116 conviction is for an attempted murder, not a murder? [00:27:08] Speaker 01: Well, so the predicate that's charged under 924C does not have to be a predicate that includes murder, Your Honor. [00:27:14] Speaker 01: So for example, a 924C can be possession of a firearm in connection with a drug trafficking crime, but then if it causes murder, as defined in 1111, [00:27:24] Speaker 01: then 924J applies here. [00:27:27] Speaker 01: So similarly here, if the predicate is attempted murder rather than murder, if there's a 924C offense, and then in the course, a murder causes a killing, as that's defined in 1111, then 924J applies. [00:27:39] Speaker 02: There doesn't need to be an identity between the... It doesn't matter if that murder is outside of the U.S. [00:27:49] Speaker 02: for the 924J analysis. [00:27:54] Speaker 01: No, because 924C applies extraterritorially. [00:27:59] Speaker 01: for the reasons identified in RJR Nabisco. [00:28:01] Speaker 01: As long as the predicate applies extra-territorially, 924C and 924J also, which enhances the punishment for 924C, apply extra-territorially. [00:28:10] Speaker 01: That's the teaching of RJR Nabisco, which says that if Congress defines predicate offenses as an element of a crime and it defines those predicates to expressly include extra-territorial offenses, [00:28:25] Speaker 01: then a commission of the crime that's based on those predicates applies extra-territorially as well. [00:28:30] Speaker 01: And 924C expressly includes as predicates offenses that apply extra-territorially. [00:28:38] Speaker 01: It specifically cites the MDLEA, which applies extra-territorially, and it also encompasses the Controlled Substance and Import and Export Act, which is 21 U.S.C. [00:28:48] Speaker 01: 951-X Act. [00:28:49] Speaker 01: And that includes 959, which, as this court has concluded in Thompson, obviously applies extra-characterially. [00:28:56] Speaker 01: It has a provision there. [00:28:57] Speaker 01: And so Congress clearly determined that all those provide a clear indication that when Congress enacted 924C, it understood that if a defendant committed a 924C offense, if he or she used or carried a firearm during in connection with a predicate that applied extraterritorially, then that offense, the 924C offense, also applies extraterritorially. [00:29:21] Speaker 01: And there's no basis to distinguish 924J as well, because that encompasses the 924C [00:29:27] Speaker 01: offense as well, and so therefore the same reasoning of our J.R. [00:29:30] Speaker 01: Nabisco about encompassing those extra-territorially predicates also applies in that context as well. [00:29:41] Speaker 02: All right, thank you. [00:29:44] Speaker 02: We'll give you two minutes, Mr. Capel. [00:29:47] Speaker 03: Thank you, Your Honor. [00:29:49] Speaker 03: First of all, on the [00:29:51] Speaker 03: Let me highlight the point that Congress has made numerous statutes explicitly extraterritorial. [00:29:57] Speaker 03: In particular, if done so, it did so in the AEDPA, which, as counsel pointed out, rewrote the 1114. [00:30:07] Speaker 03: It created some new offenses, and it made other offenses that already existed extraterritorially. [00:30:14] Speaker 03: But it did not make this offense extraterritorial. [00:30:18] Speaker 03: The burden is on the government to show extraterritoriality, but even if that were not the case, I think the fact that Congress did that in the AEDPA strongly suggests that it did not want this offense to be extraterritorial. [00:30:31] Speaker 03: There's certainly no clear indication of extraterritoriality. [00:30:36] Speaker 03: He mentions the intelligence community and the State Department. [00:30:40] Speaker 03: You know, whatever that may mean, those officers, both the intelligence community and the State Department, have a large number of officers operating within the U.S. [00:30:50] Speaker 03: I don't think that's dispositive. [00:30:52] Speaker 03: As you pointed out, that's no longer the law. [00:30:54] Speaker 03: Those terms were in the law, but they're not in the law now. [00:30:59] Speaker 02: Your Honor mentioned our view on international... But I guess the government says that the legislative history clearly indicates that Congress wasn't attempting to restrict 1114 with the EDPA amendments. [00:31:18] Speaker 02: Do you dispute that? [00:31:21] Speaker 03: I don't think, I think that's correct. [00:31:23] Speaker 03: I don't know that there's, that's not clear. [00:31:25] Speaker 03: I mean let me put it that way. [00:31:26] Speaker 03: They changed the language and certainly in many respects they expanded the coverage of the statute. [00:31:34] Speaker 03: But I think that in fact supports our argument. [00:31:37] Speaker 03: It's a very expansive statute and it's very easy to think that when it was much more limited [00:31:42] Speaker 03: I don't think so, but maybe Congress meant it to apply overseas. [00:31:45] Speaker 03: But now that it applies not only to every U.S. [00:31:47] Speaker 03: government employee, but anyone who's helping a U.S. [00:31:49] Speaker 03: government employee. [00:31:50] Speaker 03: You're not conceding that it applied to the territory only before? [00:31:54] Speaker 03: No, we're definitely not. [00:31:55] Speaker 03: I don't believe it did. [00:31:56] Speaker 03: But even if it did, the fact that Congress expanded it, there's an argument that there's less reason for it to apply extraterritorially. [00:32:07] Speaker 03: Your Honor mentioned [00:32:10] Speaker 03: international law, and it's correct we did not specifically in any detail address the international law argument, but certainly we made – we emphasized that one of the reasons for the presumption against extraterritoriality is that foreign countries would be unhappy about us applying our domestic law for street crimes within their home country. [00:32:33] Speaker 05: But given the protective principle, that would not actually be in violation of international, generally understood international law if it did apply extraterritorially, would it? [00:32:45] Speaker 03: I'm not sure that would be the case. [00:32:46] Speaker 03: I think that would be the case if there was deliberate targeting of U.S. [00:32:50] Speaker 03: officials. [00:32:51] Speaker 03: But this law is so broad, I think it goes beyond the protective principle in international law. [00:32:59] Speaker 02: And let me just... Can I just get your response to the 924, I guess, J issue? [00:33:11] Speaker 02: I guess also 924C. [00:33:12] Speaker 02: So if, let's suppose we agree with you that 1114 does not apply extraterritorially. [00:33:21] Speaker 02: Why isn't that error harmless if we find that 924C applies extraterritorially with respect to 1116? [00:33:37] Speaker 03: I think, first of all, we argue as to why 924C does not apply outside the U.S. [00:33:47] Speaker 03: But setting that aside, I think, [00:33:50] Speaker 03: The case would need to go back, as I mentioned, to the district court, for the district court based that 924J sentence on the fact that there had been a, the defendant had been convicted, both defendants had been convicted of murder. [00:34:05] Speaker 03: And I think the court would need to reevaluate that decision. [00:34:08] Speaker 02: But there wouldn't be a basis. [00:34:09] Speaker 02: If we disagreed with you, we agreed with you on 1114, but disagreed with you on 924C, there's no reason to vacate [00:34:20] Speaker 02: the conviction of the 924C, you're saying we should vacate the special fine room. [00:34:26] Speaker 03: That's exactly correct, Your Honor, yes. [00:34:30] Speaker 02: All right, we have your argument. [00:34:34] Speaker 02: Mr. Kaplan and Ms. [00:34:36] Speaker 02: Amado, you were appointed by the court to represent the appellants in this matter, and we thank you for your assistance. [00:34:42] Speaker 02: Thank you very much, Your Honor. [00:34:44] Speaker 02: We'll take the case under advisement.