United States v. Oral Thompson
921 F.3d 263
D.C. Cir.2019Background
- Oral Thompson and Dwight Knowles were convicted of conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine on aircraft registered in or owned by U.S. citizens; neither defendant ever entered the United States.
- Charge rested on 21 U.S.C. § 963 (conspiracy) and § 959(b) (offenses on U.S. aircraft), with § 959(c) addressing extraterritoriality and venue for some offenses.
- The heart of the dispute: whether the conspiracy offense (and specifically conspiracy to possess with intent to distribute under § 959(b)(2)) reaches extraterritorial conduct.
- The district court admitted various Rule 404(b) prior-act evidence (including 1990s transactions and other drug-related conversations) and allowed co-conspirator testimony explaining coded language.
- Appellants also raised ineffective-assistance-of-counsel claims (failure to move for severance, motions to dismiss, mistrial), leading the panel to remand one claim for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the general conspiracy provision (21 U.S.C. § 963) is extraterritorial absent explicit congressional direction | § 963 lacks an express extraterritorial statement; presumption against extraterritoriality applies | Government: conspiracy ancillary to substantive statutes should follow their extraterritorial reach | Court: ancillary-offense reach is generally coterminous with underlying statute (citing circuit precedent), but outcome depends on the underlying offense's extraterritoriality |
| Whether § 959(b)(2) (possession with intent to distribute on U.S. aircraft) applies extraterritorially | Appellants: § 959(c) expressly reaches only "acts of manufacture or distribution," and omission of possession means it is not extraterritorial; apply presumption against extraterritoriality and lenity | Government: § 959(c) read as covering the whole section ("this section") and "acts of" could encompass possession with intent to distribute; venue language and drafting context support extraterritorial reach | Majority: possession w/ intent to distribute is not clearly covered by § 959(c); omission signals no extraterritorial reach for that crime; but error in charging conspiracy to possess was harmless because evidence for possession conspiracy was coextensive with distribution conspiracy |
| Admissibility of prior-bad-act evidence and co-conspirator testimony (Rule 404(b) and expert/witness qualification) | Defendants: prior acts (1990s, unrelated transactions) were unduly prejudicial and some testimony should be excluded or treated as expert evidence | Government: prior acts admissible to show knowledge, plan, scheme; co-conspirators may explain jargon based on participation | Court: most 404(b) rulings were within discretion; 1990s evidence may be stale but any error was harmless; co-conspirator lay testimony permitted; unpreserved claims reviewed for plain error and found nonprejudicial |
| Ineffective assistance and severance (Thompson) | Thompson: counsel failed to move to sever defendants given prejudicial evidence against Knowles and other alleged counsel lapses | Government: claims largely not colorable on the face of the record | Court: remanded for an evidentiary hearing on whether counsel was ineffective for failing to move to sever Thompson and Knowles; other ineffective-assistance claims not colorable |
Key Cases Cited
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (presumption against extraterritoriality; requires clear congressional intent)
- RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016) (reinforcing the presumption against extraterritorial application)
- United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (ancillary-offense extraterritorial reach coterminous with underlying statute)
- United States v. Ali, 718 F.3d 929 (D.C. Cir. 2013) (construing extraterritorial reach of general conspiracy statute in piracy context)
- United States v. Lawrence, 727 F.3d 386 (5th Cir. 2013) (holding § 959(b)(2) extraterritorial)
- United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016) (holding § 959(b)(2) extraterritorial; criticized the omission theory)
- Skilling v. United States, 561 U.S. 358 (2010) (harmless-error and jury-verdict principles)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error doctrine for omitted elements)
- United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010) (permitting co-conspirator lay testimony about conspiracy jargon)
- United States v. Sheffield, 832 F.3d 296 (D.C. Cir. 2016) (prior-act evidence must not be unduly stale to prove knowledge)
- Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50 (2004) (interpretation of statutory phrases like "this subparagraph")