In re Sealed Case

• Decision Date: 25 June 2019
• Docket Number: No. 14-3043,14-3043
• Citation: 936 F.3d 582
• Parties: IN RE: SEALED CASE
• Court: U.S. Court of Appeals — District of Columbia Circuit

936 F.3d 582

IN RE: SEALED CASE

No. 14-3043

United States Court of Appeals, District of Columbia Circuit.

Argued October 6, 2016

Decided June 25, 2019

Reissued August 30, 2019

Opinion concurring in part and concurring in the judgment filed by Circuit Judge Henderson.

Griffith, Circuit Judge:¹

Appellant pleaded guilty to violating 21 U.S.C. § 960a, which prohibits using the proceeds of drug trafficking to support foreign terrorist groups. He now appeals his conviction. This case requires us to address how the Foreign Commerce and Due Process Clauses of the Constitution limit the extraterritorial application of the statute, and to consider the effect of Appellant’s guilty plea on his ability to appeal his conviction. We conclude that Congress had the authority to criminalize Appellant’s conduct even though his actions occurred outside of the United States, and that his plea agreement precludes his other arguments on appeal. Accordingly, we affirm Appellant’s conviction.

I

Because of the threat they posed to the security of the United States and its citizens, between Year and Year the State Department designated as terrorist organizations Organization 1 and Organization 2. [Redacted] Both groups controlled territory in Country A involved in the drug trade. Appellant was a key leader of an extensive criminal enterprise that produced and transported drugs in those areas, flying large amounts of drugs from Country A to Country B, Country C, Country D, and Country E. For example, while in Country B, Appellant supervised the delivery of large quantities of drugs, reloading the planes used to drop off the drugs with millions of U.S. dollars and other currency that were then flown to Country A. He knew some of that money was being paid as a "tax" to Organization 1 and Organization 2 in exchange for permission to operate in their territory, and that those groups were actively engaging in terrorism. At one point, he also personally participated in the delivery of money and weapons to Organization 1.

A federal grand jury indicted Appellant on a single count of violating 21 U.S.C. § 960a. Broadly speaking, the statute criminalizes supporting terrorist groups with the proceeds of illegal drug trafficking. The statute has three parts. First, it identifies a set of drug-related activities that would be punished under a separate statute if they were committed within the jurisdiction of the United States. The statute then specifies that it prohibits engaging in those drug-related activities "knowing or intending to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity." 21 U.S.C. § 960a(a).

Finally, the statute contains five jurisdictional provisions. The government need prove only one, and three are relevant here. Jurisdiction exists when either the terrorist offense or drug activity involved in the charged conduct would independently violate U.S. criminal law; when "the offense, the prohibited drug activity, or the terrorist offense occurs in or affects interstate or foreign commerce"; or when a defendant, after violating the substantive provisions of § 960a, "is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States." Id. § 960a(b)(l), (2), (5).²

Here, the government initially alleged that Appellant had conspired to manufacture, distribute, and possess with intent to distribute a quantity of drugs. The government charged that Appellant then paid Organization 1 and Organization 2 for permission to operate in their territory using proceeds of that conspiracy. The government asserted that three of the statute’s jurisdictional elements were met because "the prohibited drug activity and terrorist offense violate[d] the criminal laws of the United States, specifically" 18 U.S.C. § 2339B, which criminalizes the material support of foreign terrorist organizations; "the prohibited drug activity and the terrorist offenses occur[ed] in or affect[ed] interstate or foreign commerce"; and Appellant was brought into the United States after the conduct that violated the statute occurred abroad.

Appellant was arrested on Date and extradited from Country A. He was arraigned in federal district court in the District of Columbia on Date. In Month, Appellant moved to dismiss the indictment, arguing that (1) the indictment did not allege all the elements of the offense charged; (2) the indictment failed to put him on adequate notice of the conduct that was allegedly criminal; (3) no nexus between the charged conduct and the United States existed, meaning that his prosecution violated the Due Process Clause; and (4) the jurisdictional reach of § 960a exceeded Congress’s enumerated powers, both facially and as-applied in this case. [Redacted]

[Redacted] Appellant never moved to dismiss the [Redacted] information to which he pleaded guilty.

As part of the plea agreement, Appellant also stipulated to a statement of facts detailing his participation in the scheme and agreed that those facts "satisf[ied] each of the essential elements of the charge to which [he] [was] entering [ ]his plea." He expressly waived the right to appeal his sentence in all but a few limited circumstances not applicable here. [Redacted] the district court sentenced Appellant to time in prison.

Appellant did not expressly waive his right to appeal his conviction, and we must first determine whether his guilty plea bars his appeal. After we held oral argument, the Supreme Court granted certiorari in Class v. United States , ––– U.S. ––––, 137 S. Ct. 1065, 197 L.Ed.2d 175 (2017), a case that raised the same issue. We held Appellant’s appeal in abeyance pending a decision in Class, which has been announced. We requested supplemental briefing regarding the effect of that decision on Appellant’s appeal.

II

Appellant challenges his conviction on three grounds. First, he argues that Article I of the Constitution does not authorize Congress to pass a criminal statute with the extraterritorial reach of § 960a. Second, he claims that due process requires a greater connection between the punished conduct and the United States than existed here. Finally, Appellant contends that his behavior does not satisfy some of the statute’s elements.³ We reject each of these challenges.

A

Generally, "[u]nconditional guilty pleas" like Appellant’s that "are knowing and intelligent" and do not reserve some ground for appeal in writing serve to "waive the pleading defendant[’s] claims of error on appeal, even constitutional claims." United States v. Delgado-Garcia, 374 F.3d 1337, 1341 (D.C. Cir. 2004) ; see also FED. R. CRIM. P. 11(a)(2). There are limited exceptions to this rule, and Appellant maintains this case falls within one: the right to argue on appeal that a prosecution was defective from its inception, because the defendant could not lawfully have been "haled into court at all." Blackledge v. Perry , 417 U.S. 21, 30-31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

The Supreme Court first articulated this exception in Blackledge v. Perry and Menna v. New York , 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). The Blackledge - Menna doctrine recognizes that there are some cases in which the Constitution prohibits a prosecution even though the defendant has admitted in a plea agreement that he did exactly what the government alleged. Menna, 423 U.S. at 62 n.2, 96 S.Ct. 241. In such a case, a guilty plea will not bar a constitutional challenge to the prosecution. Id. For example, a guilty plea does not preclude "a claim that the charged offense violates the double jeopardy clause," Delgado-Garcia, 374 F.3d at 1341, or bar the argument that the prosecution was vindictive, see Blackledge, 417 U.S. at 30, 94 S.Ct. 2098.

The boundaries of the Blackledge - Menna doctrine were recently clarified in Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 200 L.Ed.2d 37 (2018). In that case, the Supreme Court held that a guilty plea will never, "by itself," bar a defendant from challenging the constitutionality of his statute of conviction, id. at 803, because such an argument "call[s] into question the [g]overnment’s power to ‘constitutionally prosecute’ him," id. at 805 (quoting United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) ). A guilty plea does, however, bar a defendant from making arguments on appeal that contradict admissions made in his plea agreement. Id. at 805 (holding that a defendant who pleads guilty "relinquishes any claim that would contradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty’ " (quoting Broce, 488 U.S. at 573-74, 109 S.Ct. 757 )).

As the government concedes, Appellant’s constitutional arguments are largely of the type that, as Class made clear, survive a guilty plea under the Blackledge - Menna doctrine. Gov’t Suppl. Br. 3-4. Appellant’s challenges to the potential reach of Congress’s power under Article I and the restraints on that power under the Due Process Clause "call into question the [g]overnment’s power to constitutionally prosecute him." Class, 138 S. Ct. at 805 (internal quotation marks omitted). And, critically, his challenge to Congress’s authority to enact § 960a and his due process claim do not contradict any of the admissions made in his plea agreement. See id. at 804. Instead, "[t]hey are consistent with Appellant’s knowing, voluntary, and intelligent admission that he did what the [charging document] alleged," and "can be resolved without any need to venture beyond that record." Id. (internal quotation marks omitted). That means that Appellant may still raise at least these arguments despite pleading guilty. Id. at 807.

Appellant argues that our review is de novo. The government counters that his failure to obtain a ruling on his motion to dismiss means that our review is for plain error. Because the challenges not barred by Appellant’s guilty plea fail even...