United States v. Lawrence
| Decision Date | 20 August 2013 |
| Docket Number | No. 12–20430.,12–20430. |
| Citation | 727 F.3d 386 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Ade LAWRENCE and Felicia Parker, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
John Alexander Romano, Esq., Trial Attorney, U.S. Department of Justice, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX for Plaintiff–Appellee.
Clinard J. Hanby (argued), Esq., The Woodlands, TX Michael Martin Essmyer (argued), Sr., Esq., Essmyer & Daniel, P.C., Houston, TX, for Defendant–Appellant.
Appeals from the United States District Court for the Southern District of Texas.
Before OWEN and HAYNES, Circuit Judges and LEMELLE *, District Judge.
Appellants Felicia Parker and Ade Lawrence were convicted in federal district court of conspiracy to possess illicit substances aboard an aircraft with intent to distribute in violation of 21 U.S.C. § 963. The conspiracy involved U.S. citizens traveling from the United States to South America to acquire drugs which were then transported to the United Kingdom for distribution. Appellants challenged the application of § 959(b) and § 963 to their conduct on statutory and constitutional grounds. The district court denied their motions and upheld their convictions. For the reasons enumerated below, we affirm the ruling of the district court.
Procedural History:
On January 11, 2011, a federal grand jury returned an indictment charging Appellants, as well as Sherree Lawrence, Gwendolyn Free, and Monica Mitchell, with conspiring to possess aboard an aircraft with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 963. Lawrence and Parker moved to dismiss the indictment alleging, inter alia, that: (1) Congress did not intend for § 959(b), the provision of the statute that Appellants are charged with conspiring to violate, to apply extraterritorially; (2) if Congress did enact § 959(b)(2) with the intent that it should apply extraterritorially, it went beyond its Constitutional authority in doing so; and (3) the indictment was unconstitutionally vague. The district court denied their motions.
On March 2, 2012, after a five-day trial, a jury convicted Lawrence and Parker of the charged conspiracy. The district court sentenced Lawrence to 235 months of imprisonment, to be followed by five years of supervised release and sentenced Parker to 60 months of imprisonment, to be followed by two years of supervised release. This appeal followed.
Facts:
In late 2009 through July 2010, Appellants Ade Lawrence (“Lawrence”) and Felicia Parker (“Parker”), along with Sherree Lawrence (“Sherree”) 1, Gwendolyn Free (“Free”), and Monica Mitchell (“Mitchell”), participated in a plan to transport cocaine from South America to the United Kingdom on board commercial airplanes. Parker, Sherree, Free, and Mitchell, all U.S. citizens, served as the couriers. Lawrence, who is originally from Nigeria but entered the United States on a non-immigrant visa, lived in Houston, Texas and after marrying Sherree, applied for (but never obtained) U.S. citizenship. Lawrence took a number of actions while in the United States to further the transportation of the drugs including: hiring drug couriers to work for him, organizing and paying for the couriers' flights, instructing them on where to stay and how to establish communication with local contacts, obtaining a visa for at least one courier, driving at least two couriers to the Houston airport, wiring at least one courier money, wiring at least one courier money while the courier was abroad on a trip to transport drugs, and instructing the couriers on how to dress and act while traveling in order to avoid detection. Each courier applied for an American passport before traveling for Lawrence. Parker filed an application for an expedited passport, listing a travel reservation that had been booked using one of Lawrence's email addresses. The passport applications for Parker, Free, and Sherree listed the same Houston apartment complex where Appellant Lawrence lived in 2009 as an address.
The drug-smuggling trips involved similar patterns. Each courier's smuggling trip originated in Houston. Each courier traveled from Houston to South America aboard a commercial airline. Upon arriving at her destination (usually Sao Paulo, Brazil), the courier would check into a hotel for several days and establish communication with a local contact. During one of Mitchell's trips, she provided her contact with a jacket that Lawrence had given her before she left Houston. The jacket contained an envelope with approximately $15,000 in cash inside one of the jacket's pockets. At some point, the contact would provide the courier with cocaine that had been concealed inside other items, such as shampoo bottles, large candles, or ladies' purses. Appellant Lawrence typically emailed the courier information for her next flight. The courier would then transport the cocaine to London by commercial airplane, stopping in several cities along the way, such as Panama City, Zurich, or Amsterdam. The couriers admitted to knowing they were transporting drugs. If the courier made it to London without getting arrested, the drugs were then transferred to a local contact.
Each leg of the courier's airplane trip was usually booked as a separate round-trip ticket, even though the return ticket was never used. Lawrence typically used the email address estherakinremi@ yahoo. co. uk to make travel reservations for the couriers and to email each of them their itineraries.
On at least two occasions, Free was paid £10,000 in cash in London while on a drug smuggling trip—once by a local contact and once by Appellant Lawrence. In both instances, Free brought the money back to the United States, loading most of it onto a prepaid debit card beforehand. Free took three drug-smuggling trips for Lawrence: in December 2009, she traveled to Ecuador; in March 2010, she traveled to Panama, continuing to the UK; and in April 2010, she traveled to Brazil, continuing to the UK.
On June 5, 2010, Appellant Parker traveled to Sao Paulo, continuing to London (via Panama City, Amsterdam, and Zurich). Parker later told Free that she had delivered the package she picked up in Brazil to the contact in London.
On June 9, 2010, Sherree flew from Houston to La Paz, Bolivia, and later to Sao Paulo, Brazil. Brazilian authorities arrested Sherree at the Sao Paulo airport while she was waiting to board a flight to Amsterdam with her five-year old daughter, after a drug dog alerted authorities to luggage arriving from Bolivia under her daughter's name. Authorities recovered almost six kilograms of cocaine beneath the false bottoms of two pieces of luggage.
On July 16, 2010, Mitchell flew from Houston to Sao Paulo, where she picked up cocaine hidden inside eight purses. Mitchell then flew to Panama City. On July 25, while Mitchell was waiting to check in for a flight to Switzerland, Panamanian authorities questioned her, searched her luggage, and found almost three kilograms of cocaine hidden inside the purses. Mitchell was arrested and eventually transferred into the custody of the United States.
U.S. federal agents questioned Mitchell in Panama and questioned Free in Texas; both couriers identified Lawrence as the leader of the smuggling operation and Free also implicated Parker as a courier. When interviewed by federal agents, Parker acknowledged knowing Lawrence but said that they saw each other infrequently. Lawrence's cell phone records for the date of Parker's interview showed repeated, as well as attempted, communications with Parker's cell phone.
On appeal, Appellants Lawrence and Parker argue that: (1) the substantive crime underlying the conspiracy charge—possession with intent to distribute in violation of 21 U.S.C. § 959(b)—was not intendedto apply to possession of illicit substances aboard a plane traveling between two foreign nations with intent to distribute in a foreign country and that extraterritorial application of § 959(b) would violate due process and international law; (2) if Congress enacted § 959(b)(2) with the intent that it should apply extraterritorially, it went beyond its Constitutional authority in doing so; and (3) the indictment was unconstitutionally vague.
The district court judge found that Congress clearly intended for § 959 to apply extraterritorially because § 959(c) provides for the extraterritorial application of the entire section, including § 959(b)(2). This court reviews questions of statutory interpretation de novo. United States v. Kay, 359 F.3d 738, 742 (5th Cir.2004).
21 U.S.C. § 959, entitled “Possession, manufacture, or distribution of controlled substance,” is located under Subchapter II (Import and Export) of the Drug Abuse Prevention and Control Act (“DAPCA”). § 959 states the following:
(a) Manufacture or distribution for purpose of unlawful importation
It shall be unlawful for any person to manufacture or distribute a controlled substance ...
(1) intending that such substance or chemical will be unlawfully imported into the United States or into waters within a distance of 12 miles of the coast of the United States; or
(2) knowing that such substance or chemical will be unlawfully imported into the United States or into waters within a distance of 12 miles of the coast of the United States.
(b) Possession, manufacture, or distribution by person on board aircraft
It shall be unlawful for any United States citizen on board any aircraft, or any person on board any aircraft owned by a United States citizen or registered in the United States, to—
(1) manufacture or distribute a controlled substance or listed chemical; or
(2) possess a controlled substance or listed chemical with intent to distribute.
(c) Acts committed outside territorial jurisdiction of the United States; venue
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