November 16th, 1998

Precedential

97-2144

                                United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 97-2144.

                       UNITED STATES of America, Plaintiff-Appellee,

                                                v.

                        William MacALLISTER, Defendant-Appellant.

                                         Nov. 16, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 92-255-CR-J-
10), Howell W. Melton, Judge.

Before TJOFLAT, COX and HULL, Circuit Judges.

       PER CURIAM:

       William MacAllister appeals his conviction for conspiracy to export cocaine in violation of

21 U.S.C. § 963

. We affirm.

                                 I. FACTUAL BACKGROUND

       William MacAllister, a resident of Montréal, Québec, was a member of a conspiracy to

export cocaine from the United States. In June 1992, MacAllister's coconspirator and codefendant,

Paul LaRue, was introduced by telephone to Drug Enforcement Agency (DEA) Special Agent John

Burns. Agent Burns was based in Jacksonville, Florida and played the role of a middleman cocaine

supplier.

       Larue and Agent Burns began to discuss exporting cocaine from the United States to

Montréal. Larue was interested in purchasing 5,000 kilograms of cocaine at a price of $12,000 per

kilogram. After many phone conversations, and meetings in both the United States and Canada,

Agent Burns requested a down payment for the cocaine. LaRue agreed to obtain the money.
       On October 9, 1992, LaRue telephoned Agent Burns stating that his financial backer,

MacAllister, was with him;        Larue then handed MacAllister the telephone.           During that

conversation, MacAllister indicated that he had a total of five million dollars waiting as payment for

the cocaine and invited Agent Burns to come to Montréal to further negotiate the cocaine purchase

and delivery.

       In late October 1992, MacAllister and LaRue met with Agent Burns and another undercover

agent, Ed Dickey, at a bar inside Montréal's Dorval International Airport. At this meeting,

MacAllister proposed a new method for transporting the cocaine from the United States into

Canada.1 He also made it clear that he, or his organization, would pay for the cocaine within five

days of delivery.

       From November 1992 through March of 1993, Agent Burns continued to maintain contact

with LaRue;2 however, a temporary impasse existed because of Burns's demand for a down

payment. LaRue urged that they conclude the deal quickly because the demand for cocaine in

Montréal was high and MacAllister and others could sell the cocaine very easily. As a compromise,

Burns agreed to a smaller down payment in exchange for a smaller initial cocaine delivery.




   1
    MacAllister said that he knew a trucker who operated a large tractor-trailer and routinely
traveled between the United States and Canada delivering merchandise. He proposed placing the
cocaine on wooden crates that could be loaded into the tractor-trailer in Jacksonville, Florida and
then delivered unopened to Montréal. He also indicated that there would be no problem with
customs at the border because he had paid off a customs official.
   2
    On November 4, 1992, undercover agent Louis Acevedo spoke with MacAllister on the
telephone. During their conversation, MacAllister discussed his Colombian contacts. Following
this conversation, MacAllister did not have any further contact with Agent Burns or the other
undercover agents.

                                                  2
       On March 10, 1993, Ashley Castenada, a representative of LaRue, traveled to Jacksonville,

Florida to inspect the cocaine. After viewing the cocaine, Castenada called LaRue in Montréal and

notified him that it was of a high quality and ready to be transported. On March 19, 1993, two other

coconspirators, Salvatore Cazzetta and Nelson Hernandez, also traveled to Jacksonville and met with

Castenada and Agent Burns. While at a Jacksonville motel, Agent Burns accepted a down payment

of $600,000 in Canadian currency from the conspirators.

       On March 21, 1993, Agent Burns met with LaRue in Canada to discuss final plans for the

delivery of and total payment for the cocaine. LaRue then accompanied Burns in a drive back across

the border to Burlington, Vermont. Shortly after arriving in Burlington, authorities arrested LaRue

and Castenada and ultimately transported them to Jacksonville for prosecution.

                                  II. PROCEDURAL HISTORY

       MacAllister was charged in a superseding indictment with conspiracy to export cocaine in

violation of 

21 U.S.C. § 963

. Pursuant to a treaty request, Canadian authorities extradited

MacAllister, a Canadian citizen, to the United States to stand trial. A jury found MacAllister guilty

as charged.

       Following his conviction, MacAllister moved to dismiss the indictment, asserting a lack of

subject matter jurisdiction; the court denied the motion. The court sentenced MacAllister to a term

of 235 months' imprisonment, to be followed by a sixty-month term of supervised release.

MacAllister appeals, challenging the district court's denial of his motion to dismiss for lack of

subject matter jurisdiction.

                                     III. ISSUE ON APPEAL




                                                 3
        The issue presented is whether 

21 U.S.C. § 963

 may be applied extraterritorially, and if so,

whether its application to MacAllister's case is appropriate.3 This is a question of statutory

interpretation subject to plenary review. See United States v. Lawson, 

809 F.2d 1514

, 1517 (11th

Cir.1987).

                                          IV. DISCUSSION

        The general rule is that a conspiracy to violate the criminal laws of the United States, in

which one conspirator commits an overt act in furtherance of that conspiracy within the United

States, is subject to prosecution in the district courts.4 In the case at bar, there was a conspiracy to

export cocaine from the United States to Montréal, a violation of § 963. The conspirators intended

to violate the laws of our country by exporting cocaine, a crime under § 953. The conspiracy was

not limited to Canada; MacAllister's coconspirators committed numerous acts in furtherance of the


   3
    Whether MacAllister properly preserved this issue for review depends upon whether the
issue is accurately characterized as involving subject matter jurisdiction. The Government does
not argue that the issue was not properly preserved, so we will proceed to address the merits.
   4
    See Ford v. United States, 

273 U.S. 593

, 620, 

47 S.Ct. 531

, 540, 

71 L.Ed. 793

 (1927) ("[T]he
conspiring was directed to violation of the United States law within the United States, by men
within and without it, and everything done was at the procuration and by the agency of each for
the other in pursuance of the conspiracy and the intended illegal importation. In such a case all
are guilty of the offense of conspiring to violate the United States law whether they are in or out
of the country.") (emphasis added); United States v. Inco Bank & Trust Corp., 

845 F.2d 919

,
920 (11th Cir.1988) ("It is well settled that the government has the power to prosecute every
member of a conspiracy that takes place in United States territory, even those conspirators who
never entered the United States."); Rivard v. United States, 

375 F.2d 882

, 886 (5th Cir.1967)
("There is thus no doubt that the object of the conspiracy was to violate the narcotics laws of the
United States; that the conspiracy was carried on partly in and partly out of this country; and
that overt acts were committed within the United States by co-conspirators."); United States v.
Winter, 

509 F.2d 975

, 982 (5th Cir.1975) ("[T]he District Court has jurisdiction over a
conspiracy and all those proved to be conspirators if the conspiracy is designed to have criminal
effects within the United States and if there is sufficient proof that at least one of the conspirators
committed an overt act in furtherance of the conspiracy within the territorial jurisdiction of the
District Court.")

                                                   4
conspiracy within the United States. Federal criminal statutes may properly include extraterritorial

effects. United States v. Baker, 

609 F.2d 134

, 136 (5th Cir.1980). Whether Congress has intended

extraterritorial application is a question of statutory interpretation. See Foley Bros. v. Filardo, 

336

U.S. 281

, 284, 

69 S.Ct. 575

, 577, 

93 L.Ed. 680

 (1949); United States v. Bowman, 

260 U.S. 94

, 97,

43 S.Ct. 39

, 41, 

67 L.Ed. 149

 (1922). In the present case, we ask whether the "language in [§ 963]

... gives any indication of a congressional purpose to extend its coverage beyond places over which

the United States has sovereignty or has some measure of legislative control." Foley Bros., 

336 U.S.

at 285

, 

69 S.Ct. at 577

.

        Generally, courts will give extraterritorial effect to penal statutes where congressional intent

is clear. See Bowman, 

260 U.S. at 98

, 

43 S.Ct. at 41

; United States v. Perez-Herrera, 

610 F.2d 289

,

290 (5th Cir.1980). MacAllister argues that the language of 

21 U.S.C. §§ 9635

 and 9536 does not

explicitly provide for extraterritorial application. He is correct; however, Bowman7 established the

   5
    

21 U.S.C. § 963

 provides that:

               Any person who attempts or conspires to commit any offense defined in this
       subchapter is punishable by imprisonment or fine or both which may not exceed the
       maximum punishment prescribed for the offense, the commission of which was the
       object of the attempt or the conspiracy.
   6
    

21 U.S.C. § 953

 states in relevant part that:

              (a) It shall be unlawful to export from the United States any narcotic drug in
       schedule I, II, III, IV....
   7
    MacAllister contends that the Supreme Court overruled Bowman in E.E.O.C. v. Arabian
American Oil Company, 

499 U.S. 244

, 

111 S.Ct. 1227

, 

113 L.Ed.2d 274

 (1991). We disagree.
Aramco considered "whether Title VII applies extraterritorially to regulate the employment
practices of United States employers who employ United States citizens abroad." Aramco, 

499
U.S. at 246

, 

111 S.Ct. at 1229

. The Court concluded that the petitioner fell short of
demonstrating a clear congressional intent that Title VII should be applied beyond our territorial
boundaries. 

Id. at 249

, 

111 S.Ct. at 1231

. MacAllister wishes to apply this holding by analogy
to his case.

                                                    5
rule that Congress need not expressly provide for extraterritorial application of a criminal statute if

the nature of the offense is such that it may be inferred.8 Under this rule, the district court properly

concluded that drug smuggling is an offense where extraterritorial application is inferred. "[B]y its

very nature [drug smuggling] involves foreign countries, and ... the accomplishment of the crime

always requires some action in a foreign country...." Brulay v. United States, 

383 F.2d 345

, 350 (9th

Cir.1967). Logic dictates that Congress would not have passed a drug conspiracy statute that

prohibits international drug smuggling activities, while simultaneously undermining the statute by

limiting its extraterritorial application. See United States v. Vasquez-Velasco, 

15 F.3d 833

, 839 n.

4 (9th Cir.1994) ("Limiting the jurisdiction of drug smuggling statutes to activities that occur within

the United States would severely undermine their scope and effective operation.").




               Employment discrimination, unlike drug smuggling, is not by definition an
       international activity, and therefore under Bowman's rule, Title VII would not be applied
       extraterritorially. Furthermore,Aramco is a civil case that has no connection to the
       Bowman rule, which applies only in criminal cases. Aramco does not even mention
       Bowman, let alone suggest that Bowman should be overruled. See United States v. Felix-
       Gutierrez, 

940 F.2d 1200

, 1205 n. 3 (9th Cir.1991) ("Arabian American did not purport
       to overrule this [Bowman ] exception, nor did it even mention Bowman. Accordingly, we
       must assume that the Bowman exception—which we have applied here—remains the
       law.")
   8
    On authority of Bowman, courts have routinely inferred congressional intent to provide for
extraterritorial jurisdiction over foreign offenses that cause domestic harm. See, e.g., United
States v. Benitez, 

741 F.2d 1312

, 1316-17 (11th Cir.1984) (conspiracy to murder government
agents, assaulting government agents); United States v. Baker, 

609 F.2d 134

 (5th Cir.1980)
(possession and conspiracy to import marijuana); United States v. Perez-Herrera, 

610 F.2d 289

(5th Cir.1980) (attempt to import marijuana into the United States); see also, United States v.
Vasquez-Velasco, 

15 F.3d 833

, 839 n. 4 (9th Cir.1994) (murder to further a drug-trafficking
enterprise in violation of 

18 U.S.C. § 1959

); United States v. Felix-Gutierrez, 

940 F.2d 1200

,
1204 (9th Cir.1991) (accessory after-the-fact to kidnaping and murder of government agent);
Chua Han Mow v. United States, 

730 F.2d 1308

, 1311 (9th Cir.1984) (conspiracy to import
drugs into the United States in violation of 

21 U.S.C. § 963

).

                                                   6
        Prior to giving extraterritorial effect to a penal statute, we consider whether doing so would

violate general principles of international law. Vasquez-Velasco, 

15 F.3d at 839

; Chua Han Mow,

730 F.2d at 1311. In this case, it would not.

        We need not provide an in-depth analysis of each international law principle of jurisdiction.9

It is sufficient to state that the objective territorial principle justifies extraterritorial application of

these statutes.10 The objective territorial principle applies where the defendant's actions either

produced some effect in the United States, or where he was part of a conspiracy in which any

conspirator's overt acts were committed within the United States' territory. Baker, 609 F.2d at 138

(citing United States v. Postal, 

589 F.2d 862

, 869 (5th Cir.1979)). In the present case, MacAllister

was a part of a conspiracy that intended to participate in and take advantage of the drug trade

between the United States and Canada. Coconspirators committed acts in furtherance of the

conspiracy within the territorial boundaries of the United States. This conduct has a detrimental

effect on our nation. We conclude that extraterritorial application is permitted under the objective

territorial principle of international law.

        MacAllister asserts that extraterritorial application of § 963 is unreasonable based on the

principles set forth in § 403(2) of the Restatement (Third) of the Foreign Relations Law of the



   9
    The law of nations permits the exercise of criminal jurisdiction by a nation under five
general principles: (1) the "objective" territorial, (2) the national, (3) the protective, (4) the
universal, and (5) the passive personality. United States v. Benitez, 

741 F.2d 1312

, 1316 (11th
Cir.1984) (citing Rivard v. United States, 

375 F.2d 882

, 885 (5th Cir.1967)). Extraterritorial
application of penal laws may be justified under any one of these five principles. 

Id.

   10
     Courts have defined the "objective" territorial principle to permit the prohibition not only of
acts occurring within the United States, but also those occurring outside the United States'
boundaries that produce detrimental effects within the national territory. Felix-Gutierrez, 940
F.2d at 1205-06.

                                                     7
United States.11 We conclude otherwise. "[D]rug smuggling is a serious and universally condemned

offense," and therefore, "no conflict is likely to be created by extraterritorial regulation of drug

traffickers." Vasquez-Velasco, 

15 F.3d at 841

 (quoting Restatement § 403, Rptr. n. 8 (1987)). We

conclude that giving extraterritorial effect to § 963 in MacAllister's case is appropriate.




   11
        Section 403(2) of Restatement (Third) provides:

                 (2) Whether exercise of jurisdiction over a person or activity is unreasonable is
          determined by evaluating all relevant factors, including, where appropriate:

                 (a) the link of the activity to the territory of the regulating state, i.e., the extent to
          which the activity takes place within the territory, or has substantial, direct, and
          foreseeable effect upon or in the territory;

                 (b) the connections, such as nationality, residence, or economic activity, between
          the regulating state and the person principally responsible for the activity to be regulated,
          or between that state and those whom the regulation is designed to protect;

                  (c) the character of the activity to be regulated, the importance of regulation to the
          regulating state, the extent to which other states regulate such activities, and the degree to
          which the desirability of such regulation is generally accepted;

                  (d) the existence of justified expectations that might be protected or hurt by the
          regulation;

                (e) the importance of the regulation to the international political, legal, or
          economic system;

                  (f) the extent to which the regulation is consistent with the traditions of the
          international system;

                  (g) the extent to which another state may have an interest in regulating the
          activity; and

                  (h) the likelihood of conflict with regulation by another state.

                                                      8
       Finally, MacAllister argues, in the alternative, that subject matter jurisdiction has been

manufactured by the efforts of DEA agents. There is no evidence in the record to support this

argument, and we therefore reject it.

       AFFIRMED.




                                               9