United States v. Epskamp
2016 U.S. App. LEXIS 14395
2d Cir.2016Background
- DEA and Dominican authorities infiltrated a scheme to charter a flight from the Dominican Republic to Europe carrying ~1,000 kg of cocaine; conspirators sought a U.S.-registered ("N" tail) aircraft to avoid scrutiny.
- Epskamp (Dutch citizen) traveled to the Dominican Republic, met conspirators, was paid and told he would travel to Belgium as a courier; he boarded the chartered plane dressed as an executive.
- Undercover pilots and cooperating witnesses observed Epskamp on the U.S.-registered aircraft; Dominican police arrested him before departure; ~1,000 kg of cocaine was found in cabin suitcases.
- Epskamp was charged in the SDNY with conspiracy and possession with intent to distribute aboard an aircraft registered in the United States (21 U.S.C. § 959(b)(2) and related statutes); convicted after jury trial and sentenced to 264 months.
- On appeal Epskamp raised: (1) lack of jurisdiction/extraterritorial overreach statutory and constitutional; (2) insufficiency of evidence; (3) alleged jury-instruction error about knowledge of U.S. registration; (4) denial of minor-role Guideline reduction; (5) government failure to secure exculpatory witness testimony from Germany.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extraterritorial scope of 21 U.S.C. § 959(b) | Gov: §959 applies extraterritorially to aircraft offenses, including possession with intent to distribute | Epskamp: §959(c) mentions only manufacture/distribution, so (b)(2) doesn't reach extraterritorial possession | Court: §959(b) covers extraterritorial possession with intent to distribute; statute's structure, context, and history support extraterritorial application |
| Knowledge of aircraft's U.S. registration as an element | Gov: statute contains jurisdictional nexus but does not require defendant's knowledge of registration | Epskamp: must know aircraft is U.S.-registered to be guilty; jury instruction allowing conviction without such knowledge was erroneous | Court: No knowledge of registration is required; jury instruction correct and claim forfeited absent plain-error showing |
| Due process / sufficient nexus for extraterritorial prosecution | Gov: defendants targeted a U.S.-registered aircraft to exploit U.S. nexus; U.S. has strong interest in prosecution | Epskamp: prosecution in U.S. for purely extraterritorial acts that did not aim to harm U.S. violates due process; lack of knowledge of registration deprives fair warning | Court: Sufficient nexus existed (targeting U.S.-registered plane and U.S. interests); fair warning satisfied because trafficking is manifestly criminal; no due process violation |
| Sentencing: minor-role reduction under U.S.S.G. §3B1.2(b) | N/A in opinion summary (resolved in separate summary order) | Epskamp: district court clearly erred denying minor-role reduction | Resolved elsewhere; not addressed in detail here; overall affirmation of conviction and sentence |
Key Cases Cited
- Morrison v. National Australia Bank, 561 U.S. 247 (establishes presumption against extraterritoriality)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (clarifies limits on extraterritorial reach and interpretive canons)
- RJR Nabisco, 136 S. Ct. 2090 (context may be consulted to determine extraterritorial effect)
- Louis Vuitton Malletier S.A. v. LY USA Inc., 676 F.3d 83 (statutory interpretation begins with text and context)
- Yousef, 327 F.3d 56 (adopts sufficient-nexus test for due-process review of extraterritorial criminal statutes)
- Al Kassar, 660 F.3d 108 (sufficient nexus exists where activity aims at harming U.S. interests or citizens)
- Londono-Villa, 930 F.2d 994 (knowledge required where statute expressly conditions liability on knowledge of importation)
- Eisenberg, 596 F.2d 522 (jurisdictional facts need not be proven as elements requiring defendant knowledge)