U.S. v. Plummer

• Decision Date: 11 August 2000
• Docket Number: No. 99-13065,99-13065
• Citation: 221 F.3d 1298
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellant, v. Christopher PLUMMER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1298

221 F.3d 1298 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellant, v. Christopher PLUMMER, Defendant-Appellee.

No. 99-13065.

United States Court of Appeals Eleventh Circuit.

Aug. 11, 2000.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida.(No. 97-06012-CR-WDF), Wilkie D.Ferguson, Jr., Judge.

Before TJOFLAT, MARCUS and CUDAHY^*, Circuit Judges.

MARCUS, Circuit Judge:

This appeal arises out of the district court's dismissal of a two-count indictment against Defendant Christopher Plummer, a United States and Bahamian citizen whose boat allegedly was in possession of over $50,000 dollars worth of Cuban cigars when it was halted off the Florida coast. Plummer was charged in Count I with attempting to smuggle the cigars into the United States in violation of 18 U.S.C. § 545 and in Count II with unauthorized transportation outside of the United States of merchandise manufactured in Cuba in violation of the Trading With the Enemy Act, 50 U.S.C. Appendix §§ 5(b) and 16 ("TWEA"). The district court dismissed both counts, holding that Defendant was not inside United States territorial waters when seized and thus could not be guilty of attempted smuggling, and that the carrying of Cuban cigars abroad could not lawfully trigger the applicability of the TWEA. Because the fact that Plummer's wrongful acts occurred outside U.S. territory does not as a matter of law prevent his prosecution under these statutes, we reverse the order of dismissal.

I.

On February 5, 1997, a federal grand jury in the Southern District of Florida returned a two-count indictment against Plummer. The allegations are straightforward. Count I alleges that on or about August 4, 1996, Plummer "willfully and knowingly and with intent to defraud the United States" attempted to "smuggle and clandestinely introduce into the United States" approximately 121 boxes of cigars manufactured in Cuba with a value of greater than $50,000, in violation of 18 U.S.C. §§ 545 and 3238 (a venue statute). Count II alleges that Plummer-"a person subject to the jurisdiction of the United States"-knowingly and willfully "transport[ed] outside of the United States merchandise made and derived in whole or in part of any article which is the growth, produce, or manufacture of Cuba, without such transaction having been authorized by the Secretary of Treasury" in violation of 50 U.S.C. Appendix §§ 5(b) and 16 and implementing regulations. The indictment does not allege that the unlawful conduct occurred in United States territory. Rather, it alleges only that Plummer was "brought to the Southern District of Florida."

On April 8, 1997, Plummer moved to dismiss the indictment. The motion was assigned to a magistrate judge, who issued a report and recommendation recommending that the motion be denied.¹ Plummer filed objections. On July 31, 1999, the district court overruled the magistrate judge's recommendation, granted the motion, and dismissed the indictment. The court later issued a corrected dismissal order on August 12, 1999.

The district court began its opinion by reciting facts beyond those alleged in the indictment which had been proffered at various pre-trial hearings. With respect to Count I, the court, citing "indirect authority from drug cases," found that "to constitute attempted smuggling under section 545 there must be, at a minimum, an allegation that the defendant willfully brought the prohibited merchandise into waters of the United States." Dist. Ct. Op. at 4. Relying on the facts set out at the start of its opinion, the court then ruled that "when [Plummer's] vessel was intercepted on the high seas with exposed boxes of Cuban cigars, still some 40 miles from waters of the United States, and he was forcibly brought into this country, [Plummer] had not taken the crime of smuggling merchandise into the United States to the brink of completion." Id. at 5. With respect to Count II, the district court offered multiple reasons for dismissal (only a few of which are argued by Plummer on appeal). The district court found that the regulations applying 50 U.S.C. Appendix §§ 5(b) and 16 to Cuba were invalid as "exceeding delegated powers" to the extent they purported to apply these statutes extraterritorially. Id. at 9. The court also found that "it is not alleged that any enemy country or enemy national has an interest in the cigars as would be required to invoke section 5(b)(1)(B)." Id. The court found as well that "the indictment does not allege in Count II that the defendant willfully and knowingly sent or brought Cuban cigars into the United States." Id. Finally, the court determined that "[w]hen confronted in international waters the defendant was not a person subject to the jurisdiction of the United States." Id. The district court ultimately found "convincing" Plummer's contention that "if [Plummer] could be found in violation of [the TWEA] on the facts of this case then a United States citizen who purchases or smokes a Cuban cigar anywhere in the world could be found guilty of violating the regulations," contrary to the intent of Congress. Id. The Government timely appealed the district court's order.

II.

We turn first to the district court's dismissal of Count I.² The Government argues that the indictment alleges all that is necessary to state the offense of attempted smuggling in violation of 18 U.S.C. § 545. The Government also contends that even though the indictment does not allege that Plummer's unlawful acts occurred in United States territory, the statute applies extraterritorially. Plummer responds that Count I fails to allege an "attempt" because acts committed entirely outside U.S. territory cannot, as a matter of law, constitute a "substantial step" toward completion of the offense of smuggling. Plummer also maintains that section 545's attempt provision cannot be applied extraterritorially.

Title 18 U.S.C. § 545 provides in pertinent part that "[w]hoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces or attempts to smuggle or clandestinely introduce into the United States any merchandise which should have been invoiced" shall be guilty of an offense. The prohibition against "attempts to smuggle" was added to the statute by the Violent Crime Control and Law Enforcement Act of 1994 in order to "eliminate inconsistencies and gaps in coverage." See H.R. Conf. Rep. No. 711, reprinted at 1994 U.S.C.C.A.N. 1839 (1994). To date, no published decision has addressed the scope or extraterritorial effect of section 545's attempt provision.

As an initial matter, we have no difficulty concluding that Count I adequately states a violation of that provision. In reviewing a motion to dismiss an indictment we look only at whether the Government has alleged each of the elements of the statute. See, e.g., United States v. Fitapelli, 786 F.2d 1461, 1463 (11th Cir.1986) ("In judging the sufficiency of the indictment, the court must look to the allegations and, taking the allegations to be true, determine whether a criminal offense has been stated."); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.1978) ("[W]e must view the [indictment] ... to determine whether it sets forth the elements of the offense charged.... In this Circuit, we have held that, ordinarily, the pleading of the allegations in terms of the statute is sufficient ...."); see also Fed.R.Crim.P. 7(c)(1) (indictment should be a "plain, concise and definite written statement of the essential facts constituting the offense charged"). Here, the Government has expressly alleged that Plummer "willfully and knowingly and with intent to defraud the United States" attempted to "smuggle and clandestinely introduce into the United States" approximately 121 boxes of cigars manufactured in Cuba in violation of section 545. The district court's finding that the Government alleged only an "intent to smuggle" overlooks the plain language of the indictment.³

Moreover, we reject the argument that, as a matter of law, the offense of attempted smuggling can never be predicated on acts occurring exclusively outside U.S. territory because the underlying offense of smuggling can only be completed on U.S. territory. A conviction for criminal attempt generally requires proof that the defendant (1) was acting with state of mind required for commission of the crime; and (2) was engaged in conduct that constitutes a substantial step toward commission of the crime. See United States v. Carothers, 121 F.3d 659, 661 (11th Cir.1997) (citing United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974)). This inquiry is by definition highly fact-specific. We see no reason why facts could not be developed at trial to establish that a defendant such as Plummer had formed the requisite intent and had taken a substantial step toward the completed offense of smuggling even though he was outside U.S. territory at the time he was apprehended.

The bright-line rule adopted by the district court has no foundation in the law of attempt or the language of section 545. While Plummer fairly asserts that the defendant's proximity to the intended location of a crime may be one consideration in determining whether his conduct represents a substantial step toward completion of the crime, it is certainly not the sole consideration, and in any case only has meaning when other factors (such as the nature of the intended offense, the type of transportation available, and the course of the vessel, just to name a few) are also taken into account. Whether Plummer's conduct advanced far enough to constitute an attempt is an issue for factual development and trial, not one for this Court to resolve as a matter of law based solely on the indictment.

Plummer's citations to Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505 (1899) and United States v. Lespier, 601 F.2d 22 (...