[00:00:01] Speaker 04:
Case number 17-30-68L, United States of America versus Oral George Thompson, also known as Chad Pellett.

[00:00:09] Speaker ?:
Mr. Kersh for Appellate Oral Thompson, Mr. Kaplan for Appellate White Gold, and Mr. Walker for the Appellate.

[00:00:17] Speaker 00:
Good morning.

[00:00:21] Speaker 00:
May I please record Stephen Kersh on behalf of Oral Thompson.

[00:00:26] Speaker 00:
I must add by saying that in these types of multiple party complex conspiracy cases, typically involving narcotics, there's a tremendous potential for prejudice to all or each of the parties individually based upon a spillover of evidence that applies to one person that doesn't apply to another person.

[00:00:46] Speaker 00:
And there's also the potential for prejudice with respect to Drew 404B evidence that comes in.

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I would submit in this court with respect to Mr. Thompson.

[00:00:55] Speaker 05:
I can tell how long you've been doing this when you refer to it as Drew evidence.

[00:00:59] Speaker 05:
I appreciate that.

[00:01:00] Speaker 00:
Excuse my colds.

[00:01:05] Speaker 00:
So I would submit to the court that the case against Oral Thompson was not, the government in its papers kept saying that it was an overwhelming case.

[00:01:14] Speaker 00:
It was not by any means an overwhelming case.

[00:01:17] Speaker 00:
It was an underwhelming case, I would submit to the court.

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Number one, there is not a single mention of the United States by Mr. Thompson.

[00:01:26] Speaker 00:
He's never engaged in any conversation where he references the United States.

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And I submit the major piece of evidence is the linchpin in the government's case, and that's Dario Davis.

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Davis is the pilot of the airplane that landed with the contraband, and he was arrested on the scene.

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And Dario Davis also was the nephew of the co-appellant.

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Mr. Knowles.

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Darren Davis was a cooperating witness.

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He was granted immunity.

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He was testifying under protection.

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He never once mentioned Oral Thompson.

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He never mentioned having contact with Oral Thompson.

[00:02:03] Speaker 00:
Never mentioned knowing of Oral Thompson.

[00:02:05] Speaker 00:
Never mentioned his name.

[00:02:06] Speaker 00:
Did not have a single reference to make with respect to Oral Thompson.

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So I submit to the court that the government had to rely upon the Drew evidence in order to make the conviction against Oral Thompson stand.

[00:02:20] Speaker 00:
And the Drew evidence we submit to the court in this case was, number one, it was highly prejudicial because it went, I would submit, solely to propensity.

[00:02:31] Speaker 07:
I don't know what Drew evidence is.

[00:02:33] Speaker 07:
Can you explain what it is to me?

[00:02:34] Speaker 07:
Sorry.

[00:02:36] Speaker 07:
Other crimes evidence.

[00:02:38] Speaker 05:
It's a DC Court of Appeals case.

[00:02:41] Speaker 07:
So that's a 404B.

[00:02:42] Speaker 07:
404B.

[00:02:43] Speaker 00:
It's the same.

[00:02:44] Speaker 07:
All right.

[00:02:44] Speaker 07:
Thank you.

[00:02:45] Speaker 00:
I've always thought it to be the same.

[00:02:48] Speaker 06:
You know, as many times as I've seen 404B cases, I've come to the conclusion that almost never is there a case where the government actually submits it for propensity.

[00:03:04] Speaker 06:
There's always about nine different ways to get around that, whether it's knowledge and 10 or so forth.

[00:03:12] Speaker 06:
And why isn't one of those ways to get around it relevant in this case?

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Well, I first thought with the notion that we have to factor in federal rule of evidence 403 in any analysis of the 404b evidence.

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And when we factor in that analysis, the prejudicial effect

[00:03:31] Speaker 00:
in the context of the 404B evidence that was submitted was enormous and it wasn't probative.

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For instance, the court allowed in testimony about boat shipments of narcotics in the 1980s.

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This is from, I believe, from Matthew Ferguson, a Maine government cooperator.

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So it's an entirely different means of transportation.

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There's no temporal nexus.

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And the only abuse the jury could have made of that evidence is for propensity or bad character, which is also impermissible under the federal rules.

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And again, without that evidence,

[00:04:07] Speaker 00:
I do not believe this, and again, within the context of Dario Davis, the primary witness, there would have been no way for the government to have even gotten this case to the jury.

[00:04:17] Speaker 00:
So there was no way for the defendant at trial to rebut this evidence.

[00:04:23] Speaker 00:
This was evidence that the boat shipments were 25 years ago.

[00:04:28] Speaker 00:
There was no way he could have put on, or he didn't put on, I don't know if he could have.

[00:04:32] Speaker 00:
I don't believe he could have.

[00:04:33] Speaker 07:
Was that evidence put in just to show

[00:04:35] Speaker 07:
the key folks in this conspiracy first met?

[00:04:38] Speaker 00:
No, it was put in to show knowledge and intent.

[00:04:42] Speaker 07:
Didn't it show how they first met?

[00:04:44] Speaker 00:
Well, yes, it did show how Mr. Ferguson and Mr. Thompson first met, yes.

[00:04:48] Speaker 07:
Does the government say we're not using that to show that?

[00:04:51] Speaker 07:
We're only using it to show knowledge and intent?

[00:04:54] Speaker 00:
I believe the court made its findings that it was used for the purpose of knowledge and intent, but it clearly was introduced to show an association.

[00:05:01] Speaker 00:
between the two men.

[00:05:02] Speaker 07:
That's how it all started.

[00:05:04] Speaker 06:
Why isn't that relevant in a conspiracy case?

[00:05:10] Speaker 00:
There may be some marginal relevance, but when we factor in 403 and the prejudicial effect of having a jury hear about Mr. Thompson engaging us.

[00:05:21] Speaker 06:
What's our scope of review on that?

[00:05:23] Speaker 00:
Excuse me?

[00:05:23] Speaker 06:
What's our scope of review?

[00:05:24] Speaker 00:
Abusive discretion.

[00:05:26] Speaker 00:
And in the context of this case, it was an abuse of discretion.

[00:05:31] Speaker 00:
Because again, also take into account what I would submit to the court was a very underwhelming case against Mr. Thompson.

[00:05:40] Speaker 00:
And then you had this overwhelming amount of 404B evidence that comes into the case.

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The combination of those two clearly suggests that it should not have been allowed to come in.

[00:05:52] Speaker 00:
Mr. Thompson was never in any way connected to the United States.

[00:05:56] Speaker 00:
He was never connected to the N157PA airplane.

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He was never engaged in negotiating that airplane.

[00:06:03] Speaker 00:
He was never alleged to have flown that airplane.

[00:06:06] Speaker 00:
So there really was a very attenuated nexus.

[00:06:10] Speaker 07:
Have you argued here, and if you did, I'm sorry I'm not

[00:06:16] Speaker 07:
or did you argue below that there's a mens rea requirement with respect to knowledge that a U.S.

[00:06:24] Speaker 07:
aircraft is involved?

[00:06:25] Speaker 07:
That sounds more like what your argument is.

[00:06:27] Speaker 07:
You didn't know there was any connection to the U.S.

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here at all.

[00:06:30] Speaker 00:
I'm not arguing that there is a mens rea requirement.

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What I am arguing is the lack of his knowledge.

[00:06:37] Speaker 07:
Why would it matter?

[00:06:39] Speaker 07:
Why would it matter?

[00:06:40] Speaker 00:
It's not a requirement, but reviewing the totality of the circumstances, the evidence, it's one factor I would submit to the court that the court can take into account in weighing the probative value against the prejudicial effect of this evidence.

[00:07:00] Speaker 00:
But then I'll move on very quickly, because I did reserve two minutes, to the experts and the lay witnesses.

[00:07:08] Speaker 00:
And I submit that both Matthew Ferguson and Anton Johnson, who were both permitted to testify about coded language, and they both very specific testimony about coded language, that there was no foundation for them to be testifying

[00:07:26] Speaker 00:
Because they were lay witnesses, they weren't noticed as expert witnesses, the defendant did not have the opportunity to challenge that testimony, to bring in another expert to provide a counter view of what these people said.

[00:07:38] Speaker 00:
And this court has made it clear in Williams that if you're testifying about something that is not from your knowledge of that particular conspiracy, you're an expert.

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And I submit to the court, this court, that the trial court add in permitting that testimony.

[00:07:52] Speaker 00:
I see my five and a half minutes is up.

[00:08:14] Speaker 04:
Good morning, Your Honor.

[00:08:15] Speaker 04:
My name is Matthew B. Kaplan, and I am here for Appellant Dwight Knowles.

[00:08:22] Speaker 04:
Your Honor, it's a principal argument – I'm going to deal with the extraterritoriality issues that we've argued in our briefs.

[00:08:29] Speaker 04:
One of the principal arguments we make is that the conspiracy provision at issue here, 21 U.S.C.

[00:08:34] Speaker 04:
963, does not apply extraterritorially.

[00:08:38] Speaker 04:
As you know, a fundamental principle for Morrison and RJR Nabisco and the other cases coming from Morrison is that absent clearly expressed congressional intent, U.S.

[00:08:47] Speaker 04:
laws don't apply overseas.

[00:08:49] Speaker 04:
Another principle that comes from both of those cases is that when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to

[00:09:02] Speaker 04:
That particular statute.

[00:09:03] Speaker 06:
It's the Supreme Court case in which that exact point is made in Cobell.

[00:09:09] Speaker 04:
It's made in, you might believe, both in R.J.R.

[00:09:12] Speaker 04:
Milisco and in the Morrison case.

[00:09:14] Speaker 06:
Cobell says it too.

[00:09:15] Speaker 04:
In Cobell as well, yes.

[00:09:17] Speaker 04:
And in light of those two axioms of statutory interpretation, the most, in our view, the most logical interpretation

[00:09:28] Speaker 04:
of the statutory structure that's relevant here is that Section 959, which is the substantive offense, at least aspects of Section 959, apply outside the United States, our expterritorial.

[00:09:40] Speaker 06:
What do you think of the two Circuit Court cases contrary to your view?

[00:09:46] Speaker 06:
Did you not hear me?

[00:09:48] Speaker 06:
The two Circuit Court cases contrary?

[00:09:51] Speaker 06:
Second Circuit, as I recall.

[00:09:53] Speaker 06:
There's an EPSCamp

[00:09:55] Speaker 06:
There are two circuit court cases with a contrary interpretation of that.

[00:10:00] Speaker 04:
I believe both of those cases focus on the substantive offense, 959.

[00:10:06] Speaker 04:
That's what I mean.

[00:10:07] Speaker 06:
But I'm arguing... You're only arguing on the conspiracy.

[00:10:10] Speaker 06:
You're not arguing the basic statute?

[00:10:12] Speaker 04:
We're arguing the basic statute as well.

[00:10:14] Speaker 06:
I guess the argument that I... My own inclination is that you have a better argument on the basic statute.

[00:10:22] Speaker 04:
Certainly, I can address that, Your Honor, as well.

[00:10:28] Speaker 06:
Well, you know, our cases, both Lee and the other one, strongly suggest that if the substance offense is extraterritorial, almost surely the conspiracy charge will also be extraterritorial.

[00:10:50] Speaker 06:
So if I were you,

[00:10:52] Speaker 06:
I'm more impressed by the basic statutory argument.

[00:11:05] Speaker 04:
Ali, actually, I think, stands for the proposition.

[00:11:08] Speaker 04:
I mean, Ali, there was a conspiracy statute that was found not to apply to that case.

[00:11:13] Speaker 04:
And I think that's the secret.

[00:11:15] Speaker 06:
Well, in part, they didn't apply in part.

[00:11:19] Speaker 04:
I sat on that one.

[00:11:19] Speaker 04:
I remember.

[00:11:20] Speaker 04:
The hostage-taking provision.

[00:11:22] Speaker 04:
But the hostage-taking conspiracy provision said explicitly that it applies overseas.

[00:11:28] Speaker 04:
On the 959B substantive argument,

[00:11:35] Speaker 04:
The statute groups 959B offenses into two separate categories.

[00:11:43] Speaker 04:
959B1 is manufacturing or distribution of a controlled substance, and B2 is possessing a controlled substance with intent to distribute.

[00:11:55] Speaker 04:
The extraterritorial provision in 959C

[00:12:00] Speaker 04:
provides that there is jurisdiction for, or provides that there's extra territorial applicability for acts of manufacturer distribution, which directly parallels the statutory language in 959C, 959B1.

[00:12:17] Speaker 04:
In other words, there's a clear parallelism between.

[00:12:21] Speaker 07:
What do the words acts of do in C?

[00:12:25] Speaker 07:
Because those are not actually in B. Are they meant to?

[00:12:29] Speaker 07:
Does the word ax of expand, manufacture or distribute, or do they narrow, or do they really not do any work?

[00:12:39] Speaker 04:
I don't think they modify the statute, but I think the more important point is whatever they do is ambiguous, and to the extent the statute is ambiguous, I think it's got to be interpreted.

[00:12:50] Speaker 04:
against extra-territorial application of the... Let me ask another question then.

[00:12:55] Speaker 06:
Let's suppose I agree with you entirely on the statutory and disagree with the circuit, the other two circuits.

[00:13:03] Speaker 06:
I think that they are policy-driven rather than textually driven.

[00:13:08] Speaker 06:
What about the question of either harmless error or plain error review?

[00:13:17] Speaker 06:
What about the proposition

[00:13:19] Speaker 06:
that even if possession is not extraterritorial, what about the argument the government makes that the evidence is overwhelming with respect to manufacture and distribution and a conspiracy for that purpose, particularly distribution?

[00:13:38] Speaker 04:
The government takes us to task for not objecting to that specific jury instruction.

[00:13:45] Speaker 04:
But I don't think it was necessary in this case.

[00:13:49] Speaker 06:
But even so, it would be still a harmless error question, right?

[00:13:53] Speaker 06:
Even if you're right about that.

[00:13:54] Speaker 04:
I think if the government could show that the case was overwhelming, which I don't think is the case.

[00:14:00] Speaker 06:
Why don't you think that's true in this case?

[00:14:02] Speaker 06:
I mean, what about the evidence goes specifically to possession as opposed to distribution?

[00:14:10] Speaker 03:
I don't think there was any

[00:14:18] Speaker 03:
evidence of... They're closely related, Your Honor.

[00:14:22] Speaker 06:
No, I'm trying hard.

[00:14:24] Speaker 06:
I didn't see any evidence that went to the jury that could be thought to be exclusively possession with the intention to distribute as opposed to distribution.

[00:14:36] Speaker 06:
And if that's true, and we think there's adequate evidence to convict, why isn't it harmless error?

[00:14:45] Speaker 04:
I think it's harmless error because I just don't... You mean you think it's not harmless error?

[00:14:50] Speaker 04:
You think it's not harmless?

[00:14:52] Speaker 04:
I think it's not harmless error.

[00:14:53] Speaker 07:
Harmful error.

[00:14:55] Speaker 04:
It is harmful error, yes.

[00:14:57] Speaker 06:
I think that's a decision for the jury to make and I just don't think there's... Well, I'm still... But if all the evidence that went to the jury was distribution, why isn't it harmless?

[00:15:13] Speaker 04:
I think it's for the jury to decide, and I can't give you a better answer than that.

[00:15:20] Speaker 04:
That's not a very good answer, Ken.

[00:15:22] Speaker 07:
Would possession of large amounts of drugs like were at issue here, would that be a sufficient over act to support a conspiracy for distribution?

[00:15:34] Speaker 04:
Possession of a large amount?

[00:15:37] Speaker 07:
The amount here was large enough to support distribution.

[00:15:40] Speaker 07:
It's not like it was a small possession amount of drugs that was at issue, right?

[00:15:44] Speaker 07:
We agree on that.

[00:15:45] Speaker 04:
Well, I don't know that the government ever proved a specific amount the government asserted.

[00:15:53] Speaker 07:
There's no claim that they were only dealing with a possession amount of drugs here.

[00:15:57] Speaker 04:
That's correct.

[00:15:57] Speaker 04:
That is correct.

[00:15:58] Speaker 07:
All right.

[00:15:59] Speaker 07:
And if someone had just charged a conspiracy to distribute, could they use the act of possession, evidence of possession, would that be a sufficient overt act

[00:16:12] Speaker 07:
by itself to establish a conspiracy – assume the other elements of conspiracy are there.

[00:16:16] Speaker 07:
That's the only overt act for the possession.

[00:16:18] Speaker 04:
I think they probably are.

[00:16:20] Speaker 04:
Okay.

[00:16:23] Speaker 04:
If there are no further questions, Bob.

[00:16:41] Speaker 01:
Good morning, Your Honors, and may it please the Court, Michael Rocker from the Department of Justice on behalf of the United States.

[00:16:47] Speaker 01:
Let me pick up with the extraterritorial arguments, and then I'll turn to the evidentiary issues at the back end.

[00:16:53] Speaker 01:
In this case, Judge Jackson conducted a thorough analysis of the operative statutory provisions, both the substantive provision in 959 and the conspiracy provision in 963.

[00:17:03] Speaker 01:
And she also drew upon Judge Bates' thoughtful analysis of the same issues in the body case, which is cited in our briefs.

[00:17:09] Speaker 01:
And she concluded that, correctly in our view, that the presumption against extraterritoriality had been rebutted for both statutes.

[00:17:18] Speaker 01:
We think those conclusions are both correct.

[00:17:20] Speaker 01:
Let me start with the 959 that Judge Silverman, the Your Honor, was asking about.

[00:17:25] Speaker 01:
Even beyond the fact that the Second and Fifth Circuits have both found that provision to be extraterritorial, and we think their reasoning is fundamentally sound, if you just look at the actual text of the statute, it leads you in that conclusion.

[00:17:37] Speaker 01:
There are numerous indicators of an extraterritorial intent.

[00:17:41] Speaker 01:
Judge Millett, you were asking about the words acts of.

[00:17:44] Speaker 01:
In our view, that broadens, in response to your question, that broadens the bases.

[00:17:48] Speaker 01:
Because although the explicit extraterritoriality clause says acts of manufacture or distribution, by no means does it say the manufacturer or the distribution.

[00:17:58] Speaker 01:
Acts of is a broader concept.

[00:18:00] Speaker 01:
And as Judge Jackson found, possession with intent to distribute fits comfortably as an act of distribution.

[00:18:07] Speaker 01:
Now, what the defendant's argument is really saying is that, well, unless the statute uses the magic word possession, then it doesn't apply extraterritorially.

[00:18:15] Speaker 01:
But the Supreme Court has told us in RJR and five other circuits that have considered the issue, which are all cited in our brief, have made clear this is not a clear statement test.

[00:18:24] Speaker 01:
They don't have to be explicit.

[00:18:25] Speaker 01:
The question is simply whether Congress, looking at the statute as a whole, drawing on the text, the history, and the purposes, has made clear it manifested... Did you imagine an intelligent lawyer

[00:18:36] Speaker 06:
writing this particular statute, specifically providing in 959B1 that it's extraterritorial.

[00:18:48] Speaker 06:
And right below that is 959B2, which is not mentioned.

[00:18:54] Speaker 06:
Can you imagine any intelligent lawyer writing that that way, intending that the word acts is to pick up 959B2?

[00:19:05] Speaker 06:
Wouldn't you say that would be a grotesquely incompetent lawyer writing it that way to mean that?

[00:19:13] Speaker 01:
I think it's not.

[00:19:13] Speaker 06:
Would you hire somebody in the Justice Department who wrote that?

[00:19:17] Speaker 01:
I'd have to look carefully at their other body of work, Your Honor.

[00:19:19] Speaker 01:
But I would say this.

[00:19:20] Speaker 01:
I think the feature that we're dealing with here is because the provisions were adopted 16 years apart, right?

[00:19:25] Speaker 01:
So the original provisions said manufacture and distribute.

[00:19:29] Speaker 06:
Doesn't matter.

[00:19:30] Speaker 06:
I understand.

[00:19:31] Speaker 06:
When the council wrote 951B.

[00:19:33] Speaker 01:
Right.

[00:19:34] Speaker 01:
I understand.

[00:19:35] Speaker 01:
But it does say this section.

[00:19:37] Speaker 06:
Because if we're going to focus on what Congress... Do you say an intelligent lawyer would have written it that way, to have this section apply?

[00:19:45] Speaker 01:
Let me try to... It's not the most intelligent way to write it, but I don't think it defeats the argument that the statute applies extraterritorially when you read the statute as a whole.

[00:19:54] Speaker 01:
If we're just going to focus on this language, I agree with you.

[00:19:57] Speaker 01:
As the Second Circuit said, it's inartful drafting.

[00:19:59] Speaker 01:
But what we have to do is look at, for example, let's look at the preparatory language in B talks about a U.S.

[00:20:05] Speaker 01:
nexus.

[00:20:05] Speaker 06:
What about, you know, you made much of the venue provision, right?

[00:20:09] Speaker 06:
You did something, though, that sort of surprised me for the Justice Department brief.

[00:20:14] Speaker 06:
You didn't mention the second portion of the venue statute, which provides that you can be tried in the District of Columbia.

[00:20:24] Speaker 06:
And that could easily be used for possession with intent to distribute, whereas

[00:20:29] Speaker 06:
the port of entry would be extraterritorial.

[00:20:33] Speaker 06:
And the second one would not be extraterritorial.

[00:20:37] Speaker 06:
Well, first of all, Your Honor, I didn't mention that in your discussion of venue, which sort of surprised me.

[00:20:41] Speaker 01:
Well, I apologize that that was not an acceptable position.

[00:20:44] Speaker 01:
It wasn't done to deceive the court or hide anything.

[00:20:47] Speaker 01:
What I was trying to do is highlight the fact that regardless of whether DC is a proper venue, our focus was on the fact that the statute, because it uses the phrase point of entry, it's necessarily contemplating for one part of the venue.

[00:20:59] Speaker 06:
But an intelligent writer could have had the

[00:21:02] Speaker 06:
DC for possession with intent to distribute.

[00:21:07] Speaker 06:
And that was not extraterritorial, but it could be tried in the District of Columbia.

[00:21:12] Speaker 01:
Perhaps.

[00:21:13] Speaker 01:
But we still also have the Prefatory Clause in B, which talks about the US nexus.

[00:21:18] Speaker 07:
The statute says this section.

[00:21:19] Speaker 07:
Hang on.

[00:21:20] Speaker 01:
I'm sorry.

[00:21:21] Speaker 07:
Sorry.

[00:21:21] Speaker 07:
If the possession with intent to distribute is solely domestic conduct, would it be permissible for Congress to say that it has to be tried?

[00:21:31] Speaker 07:
The venue for that will be?

[00:21:33] Speaker 07:
the District of Columbia, even if someone's doing it in Texas or Arizona?

[00:21:37] Speaker 01:
I'm sorry, I didn't understand.

[00:21:39] Speaker 07:
The argument is DC is where this domestic, non-extraterritorial crime will be tried.

[00:21:45] Speaker 07:
Is that a logical way to read a venue position to assume that they wanted people who committed this possession with intent to distribute in Alaska or Hawaii can be prosecuted in the District of Columbia?

[00:21:54] Speaker 01:
No, that's not, it's not.

[00:21:56] Speaker 01:
It's also, there's also a... Why, you're saying it's unconstitutional?

[00:21:59] Speaker 01:
No, I'm not saying it's unconstitutional.

[00:22:01] Speaker 01:
I'm just saying there's another – it should be read in a different way that avoids any of those concerns.

[00:22:06] Speaker 07:
But I think – Why would Congress want to try it in the District of Columbia if it's a domestic crime committed in Alaska or Hawaii?

[00:22:11] Speaker 01:
I'm sorry, why would Congress?

[00:22:12] Speaker 01:
Yes.

[00:22:13] Speaker 01:
Yeah, I don't know.

[00:22:14] Speaker 01:
That wouldn't make a whole lot of sense.

[00:22:16] Speaker 01:
But what I would say, Your Honor, is that we probably wouldn't resort – if 959b2 was really domestic, I don't think the government would resort to that provision in possession cases, because it's already covered by 841.

[00:22:27] Speaker 07:
So I think our broads... Does acts of really broaden or narrow?

[00:22:33] Speaker 07:
I think I'm building a home.

[00:22:34] Speaker 07:
I said I'm building a home.

[00:22:36] Speaker 07:
Now that could mean I run a construction company that builds homes.

[00:22:40] Speaker 07:
I'm a developer.

[00:22:41] Speaker 07:
I'm going in a development country.

[00:22:43] Speaker 07:
Or it could mean I'm hammering pieces of wood together.

[00:22:47] Speaker 07:
But if someone said acts of building a home, that wouldn't sound like just being the development company.

[00:22:54] Speaker 07:
That would sound like the construction workers, wouldn't it?

[00:22:58] Speaker 01:
I mean, I understand your honor's question.

[00:23:00] Speaker 01:
I think in a sense, yes.

[00:23:01] Speaker 06:
I think the way... So that acts of building a home wouldn't include buying a hammer?

[00:23:08] Speaker 01:
I think there's a plausible argument that it would.

[00:23:11] Speaker 06:
Possessing a hammer?

[00:23:12] Speaker 06:
And you could even include taking training in high school to learn how to build a home.

[00:23:18] Speaker 01:
It's expansive, yes.

[00:23:19] Speaker 01:
I think it is an expansive concept.

[00:23:21] Speaker 01:
I mean, I think if Congress wanted to narrow it, they certainly could have narrowed it.

[00:23:25] Speaker 01:
They could have written the manufacturer, the distribution.

[00:23:27] Speaker 01:
But I think ATSUV has to mean something.

[00:23:29] Speaker 01:
And I think the most natural understanding is it's broader.

[00:23:32] Speaker 01:
But again, just to sort of circle back on this point, the inclusion of the U.S.

[00:23:37] Speaker 01:
nexus language in 959B's preparatory clause, which applies to B1 and B2,

[00:23:43] Speaker 01:
It specifically requires either citizenship or the use of a U.S.

[00:23:46] Speaker 01:
registered aircraft.

[00:23:47] Speaker 01:
And as the Second Circuit pointed out in EPSCAM, it's awfully difficult to understand what purpose that language would have if Congress wasn't legislating with the assumption that the statute applied extraterritorially.

[00:23:58] Speaker 06:
So... It's a good, it's a decent argument, but I'm not persuaded.

[00:24:03] Speaker 01:
I understand.

[00:24:03] Speaker 06:
What about the question of whether or not the error is harmless?

[00:24:07] Speaker 01:
I certainly agree, Your Honor, that for the reasons you eloquently identified, this would be harmless error.

[00:24:12] Speaker 01:
I think all of the evidence went to distribution.

[00:24:14] Speaker 01:
And I think if the jury had been properly instructed on the two objects, if the supposedly invalid object had not been submitted, the result here would be the same.

[00:24:22] Speaker 06:
I'm a little puzzled about the jury instruction, because you're asking for a jury instruction on a legal question.

[00:24:29] Speaker 06:
Well, it's whether the theory.

[00:24:32] Speaker 06:
But I know.

[00:24:33] Speaker 06:
But put that aside.

[00:24:35] Speaker 06:
Your argument is that all the evidence, assuming it's sufficient, of course, which counsel argues it's not, and he argues 404, but assuming that that's incorrect.

[00:24:48] Speaker 06:
And we agree that the evidence all went to distribution.

[00:24:52] Speaker 06:
There is no separate evidence of possession with intention to distribute.

[00:24:56] Speaker 06:
Is that correct?

[00:24:57] Speaker 01:
I'm sorry, you said assuming we agree with that.

[00:25:00] Speaker 01:
Yes, the evidence went to distribution.

[00:25:02] Speaker 06:
Yes.

[00:25:03] Speaker 06:
So then, is it basically your argument it's too harmless?

[00:25:05] Speaker 01:
Yes.

[00:25:06] Speaker 01:
But I mean, our threshold position is that we think, I mean, if we want to be doctrinally pure, we think it should be plain error review.

[00:25:12] Speaker 06:
You think it's what?

[00:25:12] Speaker 06:
What's the difference?

[00:25:14] Speaker 01:
Well, two differences.

[00:25:15] Speaker 01:
One, if it's plain error review, it has a burden of proof.

[00:25:18] Speaker 01:
It switches.

[00:25:19] Speaker 01:
Burden of proof and clear or obvious.

[00:25:20] Speaker 01:
And we don't think it's clear or obvious when the second and the fifth circus.

[00:25:22] Speaker 05:
Why wasn't the objection to the indictment sufficient to make an objection?

[00:25:27] Speaker 05:
A fair question.

[00:25:28] Speaker 01:
First of all, I don't think anything in rule.

[00:25:29] Speaker 01:
Try to only answer.

[00:25:30] Speaker 01:
I'm sorry.

[00:25:32] Speaker 01:
I don't think that anything in Rule 30D, which requires an objection to the jury instructions, excuses a defendant from raising a new objection just because they made a pretrial motion.

[00:25:42] Speaker 01:
But I think the more practical point, Chief Judge Garland, is this.

[00:25:46] Speaker 01:
If the defendants had raised their objection and apprised the court and the government that they were continuing to maintain that possession doesn't apply extraterritorially, it might have alerted the parties in the court that this might be a situation where we want to use a special verdict.

[00:26:00] Speaker 01:
And that could have been something that we could have discussed instead of the general verdict that led us into this Yates-type situation.

[00:26:05] Speaker 01:
So I think it's far from an empty formalism.

[00:26:08] Speaker 01:
I think that if they had objected in a timely manner to the instructions, we might not find ourselves in this situation.

[00:26:14] Speaker 01:
But again.

[00:26:14] Speaker 06:
It's interesting.

[00:26:14] Speaker 06:
That's a point you did not make in your brief.

[00:26:17] Speaker 01:
I'm sorry?

[00:26:17] Speaker 01:
No, I did say it in my brief.

[00:26:19] Speaker 06:
You didn't say anything about time?

[00:26:22] Speaker 06:
The special verdict?

[00:26:24] Speaker 01:
The special verdict.

[00:26:25] Speaker 01:
Correct.

[00:26:25] Speaker 01:
We did not.

[00:26:25] Speaker 01:
But we did say that we think plain error should apply.

[00:26:27] Speaker 01:
And I want to just expound on why we think

[00:26:29] Speaker 01:
But again, the result, in prior cases, this court has declined to decide whether, at the intersection of plain error review and Gates, because it has said, well, in any case, even if harmless error applied, the result is the same.

[00:26:40] Speaker 01:
The court is certainly free to follow that path here.

[00:26:42] Speaker 01:
We don't think it would change the outcome, regardless of whose burden.

[00:26:45] Speaker 05:
I'm having a little trouble with what you just said.

[00:26:47] Speaker 05:
Sure.

[00:26:47] Speaker 05:
You're talking about Perkins or something.

[00:26:49] Speaker 05:
What case do you think we can decide?

[00:26:52] Speaker 06:
Perkins.

[00:26:55] Speaker 05:
And since Perkins, we have Skilling, in which the Supreme Court said, how this error applies.

[00:27:00] Speaker 05:
So what's the problem?

[00:27:01] Speaker 01:
I apologize.

[00:27:02] Speaker 01:
What's missing here?

[00:27:03] Speaker 01:
I apologize.

[00:27:03] Speaker 01:
No, Skilling and Hedgepeth both say that it's not structural error.

[00:27:06] Speaker 01:
But Skilling was a harmless error case.

[00:27:08] Speaker 01:
I'm talking about plain error and whether or not they had to object to the jury instructions.

[00:27:13] Speaker 01:
So I don't think there's any dispute among the parties, or I take it from the court's questions, that prejudice review applies.

[00:27:19] Speaker 01:
The only question is which framework are we looking at it through?

[00:27:22] Speaker 01:
Is it plain error because they didn't object to the instructions, or is, as Your Honor's question posed, is there a pretrial motion sufficient to preserve?

[00:27:29] Speaker 05:
Do you know of any cases that resolve the question of pretrial motions being sufficient to transform?

[00:27:34] Speaker 05:
No, I did not find any, Your Honor.

[00:27:36] Speaker 05:
The court said so in Pope versus Illinois, although

[00:27:40] Speaker 05:
I don't know whether it was raised, but in that case, the indictment was challenged as unconstitutional to the Supreme Court.

[00:27:47] Speaker 05:
The challenge was unconstitutional, and the court then only applied harmless error review.

[00:27:51] Speaker 05:
Right, but I don't think that was a dual object case.

[00:27:54] Speaker 05:
Why should that make any difference, whether it's a dual object case?

[00:27:58] Speaker 05:
The question is whether it's sufficient to raise... It wasn't, you're right.

[00:28:02] Speaker 05:
But the only question is, is it sufficient to raise the objection, to transform from

[00:28:09] Speaker 05:
plain air to harmless air.

[00:28:10] Speaker 01:
Well, if that if that is Pope's holding and I take your honor at face value, then yes, then this would be a harmless air case.

[00:28:16] Speaker 01:
And I guess the failure.

[00:28:16] Speaker 01:
I don't know how that intersects with rule 30 D. We haven't looked at that issue.

[00:28:20] Speaker 01:
But I would say again, we can pre term it all these issues and simply decide this case on a harmless air ground because the government's case at trial here was built around five cooperating witnesses.

[00:28:30] Speaker 01:
all who testified about the inner workings of this conspiracy, about Mr. Thompson's role as the broker, about Mr. Knowles' role in securing aircraft, and not just any aircraft, but they specifically sought the U.S.

[00:28:40] Speaker 01:
registered aircraft because they're perceived as, if not in truth, more airworthy and more dependable.

[00:28:47] Speaker 01:
I think there was extensive evidence, and I'd be happy to recount why we think it's harmless.

[00:28:51] Speaker 01:
I do see my time is running down.

[00:28:53] Speaker 01:
I did want to just talk about the evidentiary points for a minute, if I may.

[00:28:57] Speaker 01:
Go ahead.

[00:28:58] Speaker 01:
Thank you.

[00:28:59] Speaker 01:
On the 404B point, Your Honor, there was a pretrial hearing before Judge Rogers.

[00:29:04] Speaker 01:
The government proffered to file the notice of its intent to offer these various categories of evidence.

[00:29:08] Speaker 01:
The court went through the evidence, heard from opposing counsel, and it ultimately concluded that the vast majority of it was indeed 404B.

[00:29:15] Speaker 01:
There was one category that was deemed to be intrinsic, but the bulk of it was deemed to be extrinsic, and it was offered, as Your Honor was noting, not to prove propensity, but it was offered to prove knowledge, intent, and as Your Honor pointed out, who these people were, their membership.

[00:29:29] Speaker 07:
Well, they tell me that you didn't introduce it for, that there's this really old evidence that would seem to be quite stale to show knowledge or intent as to the boat transactions.

[00:29:38] Speaker 07:
They tell me that the government said that was submitted to show knowledge or not to show how the relationship started.

[00:29:45] Speaker 07:
Is that an accurate representation?

[00:29:48] Speaker 01:
It was for multiple purposes that they were offered.

[00:29:50] Speaker 07:
Was the jury instructed about that as one ground for consideration of this evidence?

[00:29:54] Speaker 07:
Because it is otherwise awfully stale.

[00:29:57] Speaker 07:
for knowledge or intent evidence.

[00:29:58] Speaker 01:
Well, the staleness of it, I think, goes to the weight, not necessarily to the admissibility.

[00:30:02] Speaker 01:
I mean, it can be, it was old evidence.

[00:30:03] Speaker 07:
You said sometime under 404B when it's so stale.

[00:30:06] Speaker 01:
Fair, but we don't think it's so stale that it should be excluded.

[00:30:09] Speaker 01:
We think that's something you're doing.

[00:30:10] Speaker 07:
Well, it could affect the balance of prejudice as well.

[00:30:12] Speaker 07:
So, I mean, you've got 20-year-old stuff here.

[00:30:15] Speaker 07:
It's pretty hard to show that that, way outside the endowed time period for the conspiracy, and that's supposed to show knowledge or intent 20 years later.

[00:30:23] Speaker 07:
That seems to me

[00:30:25] Speaker 01:
Well, there was other more contemporaries.

[00:30:27] Speaker 07:
I wouldn't want to rely on the fact that that would still be admissible.

[00:30:29] Speaker 01:
No, I understand.

[00:30:31] Speaker 01:
But there was other.

[00:30:31] Speaker 01:
I mean, any one of these pieces of evidence, they were all probative to proving issues that were part of the government's burden.

[00:30:37] Speaker 07:
I'm telling you, let's assume it's not probative as to knowledge or intent.

[00:30:41] Speaker 07:
Was it clear to the jury that one of the grounds for using that information was here's how these folks first met?

[00:30:48] Speaker 01:
I don't think it was specifically, I have to double check, but I know that the court in its pre-trial ruling, I believe it said membership as well as knowledge and intent, and I think in the instructions to the jury, where they were told that they can't use it to consider bad character, propensity, that he's not on trial for any of these charges, but you can consider it for limited purposes, I don't recall it's easy enough to check, but I know the court said knowledge and intent, whether it also said membership, I'd have to double check.

[00:31:12] Speaker 01:
But we also think that the court's instructions were more than sufficient to guard against any risk of unfair prejudice.

[00:31:18] Speaker 01:
As Judge Silverman has pointed out, typically 404B evidence is offered in these drug cases.

[00:31:23] Speaker 01:
It's a common practice.

[00:31:24] Speaker 01:
It's been established for many years.

[00:31:27] Speaker 01:
Very briefly, opposing counsel also alluded to what he called the expert testimony.

[00:31:31] Speaker 01:
This was not expert, these were lay witnesses.

[00:31:33] Speaker 01:
The test in this circuit, it's a bright line standard.

[00:31:36] Speaker 01:
If they're testifying based on firsthand personal knowledge, it can come in as lay witnesses.

[00:31:41] Speaker 01:
I see my time is up if I might just finish.

[00:31:43] Speaker 07:
But as to the Johnson testimony, there's a person, Johnson, do I have my names right?

[00:31:49] Speaker 07:
Anton Johnson, yes, correct.

[00:31:52] Speaker 07:
He seemed to be talking not about, oh, I was on the phone call.

[00:31:56] Speaker 07:
Here's what it meant.

[00:31:57] Speaker 07:
That's what I understood to me when we were having this conversation.

[00:31:59] Speaker 07:
He sort of goes, they have this whole definitional period.

[00:32:03] Speaker 07:
He gets to understand, what does this term mean?

[00:32:04] Speaker 07:
What does this term mean?

[00:32:05] Speaker 07:
How is that one not expert evidence?

[00:32:09] Speaker 07:
How is that possibly visible as just him reciting his own conversations, meetings, and understanding?

[00:32:16] Speaker 01:
Well, I didn't get the sense from reading his testimony that it was based on his own conversations.

[00:32:21] Speaker 01:
And if you look at the record, Judge Jackson, when the issue surfaced, Judge Jackson sort of allowed the witnesses to testify, heard the basis for their proffer, and she made a finding that they were testifying based on first-hand knowledge.

[00:32:32] Speaker 01:
She did also instruct the jury that if they found that this wasn't coming from first-hand knowledge, they could disregard the testimony.

[00:32:39] Speaker 01:
I think Johnson – and again, with respect to all these evidentiary issues, certainly the evidence was probative and helpful to the government's case, but if any piece or portions of it were improperly admitted, we think that the errors would have been harmless in any event.

[00:32:51] Speaker 07:
A lot of the same words came in through Ferguson, if I'm not – Correct.

[00:32:54] Speaker 01:
There were other witnesses – that's right, they dovetailed a lot, so that would demonstrate the harmlessness as well.

[00:32:58] Speaker 07:
And can I tell you one question that – and maybe you don't know, because I don't think they've raised this question.

[00:33:04] Speaker 01:
Sure.

[00:33:04] Speaker 07:
Is there a mens rea requirement as to the status of a U.S.

[00:33:08] Speaker 07:
airplane being used?

[00:33:09] Speaker 01:
I have not seen that issue litigated.

[00:33:10] Speaker 01:
It's not raised, and we have not seen that issue litigated.

[00:33:12] Speaker 01:
We were discussing this.

[00:33:13] Speaker 07:
The government doesn't have a position that you know of.

[00:33:15] Speaker 01:
Correct.

[00:33:15] Speaker 01:
I don't know if it's a FIOLA-type situation where knowledge wouldn't be required.

[00:33:19] Speaker 06:
Wouldn't it be a case of you charge somebody with possession of a machine gun and you have to show

[00:33:27] Speaker 06:
that the individual has knowledge that he or she was holding a machine gun?

[00:33:33] Speaker 06:
Right.

[00:33:34] Speaker 01:
The specific characteristics of the firearm, yes.

[00:33:36] Speaker 06:
So you don't think it's like that?

[00:33:38] Speaker 01:
Well, I mean, on one hand, you have that line of cases.

[00:33:40] Speaker 01:
Then you also have the old FIOLA case, which I think was assault on a federal officer.

[00:33:43] Speaker 01:
And you didn't have to prove that the defendant knew that the individual who he assaulted was, in fact... So which line is more appropriate?

[00:33:50] Speaker 01:
I don't have an answer to that position, Your Honor.

[00:33:52] Speaker 01:
It has not been raised in the briefs.

[00:33:53] Speaker 01:
I'm not prepared to stake out a position.

[00:33:55] Speaker 05:
At this time, I wouldn't feel comfortable saying that, but... Well, your position about that introductory material is it's in relationship to extraterritoriality and to the constitutionality of reaching those people in an interstate commerce case.

[00:34:13] Speaker 05:
Does the defendant have to know that the gun traveled in interstate commerce, for example, or anything like that?

[00:34:20] Speaker 01:
I don't believe so.

[00:34:22] Speaker 01:
But in this case, again, we're not – we were – the basis for the jurisdictional – the U.S.

[00:34:27] Speaker 01:
hook here was the U.S.

[00:34:28] Speaker 01:
registered aircraft, and there was plenty of evidence that these defendants specifically knew that they weren't just seeking any old aircraft, but they wanted ones that were registered.

[00:34:34] Speaker 05:
Maybe I'm confusing.

[00:34:35] Speaker 05:
What is it that there wasn't – that there was doubt about or uncertainty about?

[00:34:39] Speaker 01:
What – oh, I believe Judge Millett was asking me if the government has to prove that the defendant – that the defendant had knowledge

[00:34:48] Speaker 07:
or intent to use a US-registered aircraft.

[00:34:51] Speaker 05:
Were you just talking about the evidences that they did know of it?

[00:34:55] Speaker 05:
Then I apologize.

[00:34:56] Speaker 07:
No, no, you were answering my questions correctly.

[00:34:58] Speaker 07:
I wasn't clear to others, I think.

[00:35:01] Speaker 07:
But you got it right as far as I was concerned.

[00:35:04] Speaker 01:
OK, well, I'm sorry if I got wrapped up on the questions.

[00:35:06] Speaker 01:
No problem.

[00:35:07] Speaker 01:
Any other questions?

[00:35:09] Speaker 01:
For all these reasons, we would ask the court to affirm the judgments.

[00:35:11] Speaker 01:
Thank you.

[00:35:14] Speaker 05:
I take it we're out of time.

[00:35:17] Speaker 05:
I will give each of you two more minutes.

[00:35:19] Speaker 00:
Thank you.

[00:35:22] Speaker 00:
Excuse me.

[00:35:24] Speaker 00:
I do want to follow up on the issue of staleness, because I do believe that staleness can in fact be dispositive as to admissibility.

[00:35:34] Speaker 00:
Because if a particular act is so far away in time, number one,

[00:35:40] Speaker 00:
And maybe most importantly, the defendant has no opportunity to rebut that.

[00:35:44] Speaker 00:
The defendant had absolutely no means to rebut something that is alleged to have occurred 25 years ago.

[00:35:50] Speaker 00:
So Mr. Thompson, the event with the boats in the 80s was, the government did file a pre-trial 404B notice, but it was useless in terms of building a defense to that trial.

[00:36:02] Speaker 06:
So what was that evidence introduced for?

[00:36:07] Speaker 00:
My position is that it was impermissibly... No, no, but what was it introduced for?

[00:36:11] Speaker 00:
Knowledge and intent.

[00:36:12] Speaker 06:
Of what?

[00:36:13] Speaker 00:
Of participation in a conspiracy to traffic in narcotics.

[00:36:17] Speaker 05:
Was it originally introduced as intrinsic evidence and the judge said it wasn't?

[00:36:24] Speaker 05:
Right.

[00:36:25] Speaker 00:
The judge made a decision, I believe it was Judge Roberts who made the decision, made the initial decision that it was extrinsic evidence.

[00:36:32] Speaker 05:
Right.

[00:36:32] Speaker 05:
But did they originally submit it for the purpose that Judge Millett mentioned of showing how they met originally?

[00:36:38] Speaker 00:
Yes.

[00:36:38] Speaker 00:
Yes.

[00:36:39] Speaker 00:
That was part of it.

[00:36:40] Speaker 00:
It wasn't one was more important than the other.

[00:36:43] Speaker 00:
It was all those parts of how they met and that Mr. Thompson and that was argued in closing argument.

[00:36:48] Speaker 06:
Well, if you want to prove that X has a long time knowledge, has knowledge of B,

[00:36:54] Speaker 06:
X or Y. The fact that they met 25 years ago is not stale.

[00:37:01] Speaker 06:
It means that they had knowledge of each other.

[00:37:06] Speaker 06:
See, I don't see why that is stale.

[00:37:10] Speaker 00:
Well, just because they know each other doesn't mean... But they knew each other in a particular context, right?

[00:37:15] Speaker 00:
In a particular context.

[00:37:16] Speaker 00:
But where I believe that the staleness becomes dispositive is when you factor in Federal Rule of Evidence 403.

[00:37:25] Speaker 00:
We talk about how prejudicial is this testimony and that you have no means to challenge it.

[00:37:31] Speaker 00:
And I submit that that's where Mr. Thompson, the defendant, was handcuffed to trial.

[00:37:36] Speaker 00:
That this evidence was coming in and he simply could not challenge it.

[00:37:39] Speaker 00:
Of course he could have challenged it.

[00:37:41] Speaker 05:
He could have taken the stand and said, we didn't know each other in the 1980s.

[00:37:44] Speaker 05:
Of course you have a right not to do that.

[00:37:46] Speaker 05:
But it's not true that, I mean, that they would not be able to.

[00:37:52] Speaker 05:
I mean, you have two defendants.

[00:37:55] Speaker 05:
If they didn't want to take the stand themselves, they could have alibis for where they were in the 1980s.

[00:37:59] Speaker 05:
They could put on evidence that the people who allegedly said that they knew each other then were liars.

[00:38:04] Speaker 05:
I'm not sure why it's not possible to challenge that.

[00:38:08] Speaker 00:
I shouldn't say it's not possible, but it's not probable.

[00:38:11] Speaker 00:
Because how do you even find an alibi from 25 years ago, especially someone who's living in Columbia?

[00:38:18] Speaker 00:
These alibis don't come up that easily.

[00:38:23] Speaker 00:
If the government's allowed to introduce that evidence, then the only way to rebut it is for the defendant to take the stand.

[00:38:29] Speaker 00:
I would submit that's burden shifting.

[00:38:32] Speaker 00:
And so the defendant should be able to rebut and challenge this evidence without having to take the witness stand himself.

[00:38:39] Speaker 06:
Well, you can challenge the credibility of the witness.

[00:38:41] Speaker 00:
He did challenge it.

[00:38:45] Speaker 06:
That's partly the way in which you could challenge that.

[00:38:47] Speaker 00:
They did challenge it, but there's also their specific offense.

[00:38:53] Speaker 00:
Challenging the credibility of a witness is always part of your gross examination in any case such as this.

[00:38:58] Speaker 00:
But also challenging the specific event charged or the specific event alleged, whether it's 404B or Dited, you want to get into that specific offense.

[00:39:09] Speaker 00:
to show that this person did not commit that offense, not simply basing it on credibility witnesses.

[00:39:16] Speaker 07:
And that's where he was prejudiced.

[00:39:17] Speaker 07:
There was ample other evidence of the relationship between these folks, right?

[00:39:21] Speaker 00:
Yes.

[00:39:21] Speaker 07:
It wasn't like they just bumped into each other one time.

[00:39:24] Speaker 00:
Yes, but I submit based on the record, the 404B was the most overwhelming, most powerful evidence.

[00:39:30] Speaker 00:
And again, it showed bad character.

[00:39:33] Speaker 00:
selling narcotics, large amounts of narcotics, that hundreds of pounds and kilos by boats, amongst different countries, it really painted a very negative picture of Mr. Thompson and not one that he was easily rebuttable.

[00:39:49] Speaker 00:
And just finally, very quickly, I – we are asking for a remand for a 22 – to develop the 2255 record.

[00:39:56] Speaker 00:
And for all the – for all the – I'm sorry, but we haven't discussed that.

[00:39:59] Speaker 00:
We understand.

[00:40:00] Speaker 00:
Right.

[00:40:00] Speaker 00:
If the Court has any questions about that, if not – Questions on ineffective assistance?

[00:40:05] Speaker 00:
Okay.

[00:40:05] Speaker 00:
Thank you very much.

[00:40:17] Speaker 04:
Just very briefly, Your Honor, I think one thing that's clear about Section 959 is that it is ambiguous.

[00:40:26] Speaker 04:
And I think under the – it's ambiguous as to possession of intent to distribute.

[00:40:34] Speaker 04:
And I think under the – You know, it's funny.

[00:40:36] Speaker 06:
I don't even think it's ambiguous.

[00:40:38] Speaker 06:
I'm sorry?

[00:40:39] Speaker 06:
I don't even think it's ambiguous.

[00:40:40] Speaker 06:
I think you're right.

[00:40:42] Speaker 06:
Should I withdraw my view and retreat to ambiguity?

[00:40:47] Speaker 06:
Let me put it this way, Ron.

[00:40:51] Speaker 04:
At best, it is ambiguous.

[00:40:52] Speaker 04:
And I think if it's unclear, I'm happy to accept your position.

[00:40:59] Speaker 06:
I should want one.

[00:41:00] Speaker 06:
I'm not surprised.

[00:41:02] Speaker 07:
Then you've got to deal with harmless error.

[00:41:04] Speaker 07:
And I thought you said that you couldn't identify any evidence in this case that went just to possession.

[00:41:11] Speaker 07:
without also going to distribution?

[00:41:14] Speaker 04:
But I think, ultimately, as I said, I think it's up to the jury to decide.

[00:41:18] Speaker 07:
And I don't think that... I think it's an issue that should have gone to the... Do you think there are rational basis on which a jury would have found possession with intent to distribute here, but not intent to distribute?

[00:41:30] Speaker 04:
I mean, there's different offenses, and the jury might have concluded that there was an intent to possess, but – to possess, but – Well, they had to find an intent to possess with intent to distribute.

[00:41:40] Speaker 04:
Right.

[00:41:41] Speaker 07:
So how could they have found that without finding intent to distribute?

[00:41:45] Speaker 07:
I'm struggling with that.

[00:41:47] Speaker 04:
All I can say is I think it's possible a jury could have done that.

[00:41:54] Speaker 04:
Let me just also briefly

[00:41:56] Speaker 05:
actually have to find conspiracy to intend to possess with intent to distribute.

[00:42:03] Speaker 05:
Right.

[00:42:04] Speaker 04:
Correct, Your Honor.

[00:42:06] Speaker 04:
And let me just touch very briefly on the conspiracy.

[00:42:11] Speaker 05:
By the way, there's no overt acts in this kind of conspiracy, right?

[00:42:14] Speaker 05:
This kind of conspiracy does not require an overt act, and none was charged in the indictment.

[00:42:18] Speaker 04:
Right.

[00:42:19] Speaker 04:
It does not require an overt act.

[00:42:21] Speaker 04:
But the point being is I

[00:42:25] Speaker 04:
I respectfully disagree that Ali has, in the subsequent cases, biased us, have foreclosed the argument that we make here.

[00:42:34] Speaker 06:
It doesn't totally foreclose, you're right.

[00:42:36] Speaker 06:
But the key word is generally.

[00:42:40] Speaker 04:
The key word is generally, but I think being faithful to the Supreme Court precedent

[00:42:46] Speaker 04:
if it's not clear that the statute applies outside the U.S., it does not apply outside the U.S.

[00:42:55] Speaker 04:
And I think, again, same.

[00:42:58] Speaker 06:
Well, you know, I think one thing you can say about our case is it's pretty clear that if the substantive statute is extraterritorial, that really rebuffs the concern about the conspiracy not being extraterritorial.

[00:43:16] Speaker 06:
Unless there's some other factor.

[00:43:18] Speaker 04:
I don't know that I would think I respectfully disagree with it.

[00:43:22] Speaker 04:
I think in Ali, there was ambiguity.

[00:43:25] Speaker 04:
And I realize they also looked at the Charming Betsy issues.

[00:43:28] Speaker 06:
Yeah, but the hostage-taking was treated differently than the other crime.

[00:43:35] Speaker 04:
Because the hostage-taking in that case, it was very clear.

[00:43:38] Speaker 04:
It was clearly stated.

[00:43:39] Speaker 04:
There was no ambiguity.

[00:43:40] Speaker 04:
It was clearly stated that a conspiracy to take hostages is pro-sector territorial reach to the law.

[00:43:45] Speaker 06:
But anyway, the later case made clear that there is – unless those extraordinary, unusual circumstances, you can conclude that the conspiracy charge is extraterritorial if the substantive charge is extraterritorial.

[00:44:04] Speaker 04:
I think that – but by yesterday's case, I think it's best to construe that as they were looking at very narrowly crafted statute which had specific congressional findings.

[00:44:13] Speaker 04:
It's all enacted at the same time.

[00:44:16] Speaker 04:
And I think in that context, with this court's conclusion that the conspiracy provision Congress must have meant, that it was clear that Congress had meant that to reach overseas conduct.

[00:44:25] Speaker 07:
Here we're talking about a very broad statute passed over a number of years, and I... But the conspiracy provision is part of a sub-chapter dedicated to import and export of drugs, so the conspiracy position

[00:44:38] Speaker 07:
This is not a general conspiracy provision in the sense it was in Ali.

[00:44:43] Speaker 04:
But it covers, I think, any violation of that subject.

[00:44:47] Speaker 04:
I think there's also certain registration offenses.

[00:44:50] Speaker 07:
Registration, I think, to import and export.

[00:44:55] Speaker 07:
It's a little hard, it doesn't have the breadth of the general conspiracy.

[00:44:59] Speaker 04:
But I think when it was, the legislation was passed in the 70s, it was a conspiracy provision, but there was no explicit extra territory, provision-making.

[00:45:09] Speaker 07:
It applied to the import-export and the 959, what was then B1 provisions.

[00:45:14] Speaker 07:
So I think it came in with the 959 B1 provisions.

[00:45:19] Speaker 07:
And all the other import-export stuff in that sub-chapter of Title 21.

[00:45:25] Speaker 04:
But I think a significant Congress – I mean, they put that extraterritorial provision in 959, and why not in 963?

[00:45:35] Speaker 04:
But again, the statutory – the rule of interpretation is if you put it in one place and don't put it in the other place, it shouldn't – you should – it doesn't apply in the place where you didn't put the language.

[00:45:49] Speaker 05:
I will take the matter under submission.

[00:45:52] Speaker 05:
Mr. Kaplan and Mr. Kirsch, you took this as an appointment of the court and we're grateful for your assistance.

[00:45:59] Speaker 02:
Thank you.