COMMISSIONS IMPORT EXPORT S.A., Appellant v. REPUBLIC OF THE CONGO and Caisse Congolaise d‘Amortissement, Appellees.
No. 13-7004.
United States Court of Appeals, District of Columbia Circuit.
Argued March 14, 2014. Decided July 11, 2014.
757 F.3d 321
But several circuits have held that the law requires a jury to determine the type and quantity of drugs the defendant should have reasonably foreseen the conspiracy would involve. See, e.g., United States v. Collins, 415 F.3d 304, 311-14 (4th Cir. 2005); United States v. Banuelos, 322 F.3d 700, 704 (9th Cir.2003). As Garcia notes, our opinion in United States v. Law, 528 F.3d 888 (D.C.Cir.2008), appears to support this minority view. See id. at 906 (“[A] defendant convicted of conspiracy to deal drugs must be sentenced for the quantity of drugs the jury attributes to him as a reasonably foreseeable part of the conspiracy.“). But Law did not directly confront the Apprendi argument Garcia raises. And in the most recent case where this issue was squarely raised, we did not reach the matter. See United States v. Lopesierra-Gutierrez, 708 F.3d 193, 208 (D.C.Cir.2013), cert. denied, --- U.S. ---, 134 S.Ct. 330, 187 L.Ed.2d 232 (2013) (“According to Lopesierra, Apprendi required the jury to find the quantity of drugs attributable to Lopesierra individually—as opposed to the quantity attributable to the conspiracy as a whole. But we need not resolve this issue, for even assuming Apprendi error, such error was harmless.“).
Nor need we do so here. We review the district court‘s decision for plain error because Garcia failed to argue below that the district court should have asked the jury to find the quantity of cocaine attributable to him. See United States v. Fields, 251 F.3d 1041, 1044-45 (D.C.Cir. 2001). The Supreme Court has held that there is no plain error when, in a case where the jury does not make a required finding relating to drug quantity, the evidence of the higher drug quantity is “overwhelming.” United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); see also United States v. Mouling, 557 F.3d 658, 666 (D.C.Cir.2009), abrogated on other grounds by Henderson v. United States, --- U.S. ---, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013); United States v. Johnson, 331 F.3d 962, 968 (D.C.Cir. 2003). Here there can be no doubt that it was reasonably foreseeable to Garcia that the massive drug trafficking operation he managed involved at least five kilograms of cocaine. The evidence was overwhelming. Indeed, the district court concluded that, based on all the evidence presented at trial, Garcia was personally involved in the manufacture and import of more than 7,000 kilograms. And this, said the district court, was “a conservative figure.” Garcia offers us no reason to think the district court‘s estimate was flawed in any way. We conclude that any Apprendi error is not reversible.
IV
We have given full consideration to the various additional arguments that Garcia raises, but find none convincing or worthy of discussion. We therefore affirm his conviction and sentence.
Francis A. Vasquez Jr. argued the cause for appellant. With him on the briefs was Jack Landman Goldsmith II.
Boaz S. Morag argued the cause for appellees. With him on the brief were Michael R. Lazerwitz and Jesse D.H. Sherrett.
Before: ROGERS, BROWN and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
Commissions Import Export S.A. (“the Company“) prevailed in 2000 in an arbitration in Paris, France against the Republic of the Congo and Caisse Congolaise
The Company maintains that FAA Chapter 2 and the D.C. Recognition Act are two entirely separate regimes—one a federal scheme for enforcing foreign arbitral awards, the other a state regime for enforcing foreign court judgments—and that the federal regime does not preempt the longer enforcement period in the D.C. regime because the latter poses no obstacle to the accomplishment of the purposes of the former. We invited the United States to participate as amicus because an international treaty is at issue, and the United States agrees with our conclusion that the Company‘s attempt to enforce the foreign court judgment by a lawful, parallel enforcement scheme does not stand as an obstacle to accomplishment of the purposes of FAA Chapter 2. Accordingly, we reverse the dismissal of the Company‘s complaint and remand the case for further proceedings.
I.
As background to the discussion of preemption, we describe FAA Chapter 2 and the particular circumstances of this case.
Chapter 2 of the FAA implements the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, otherwise known as the “New York Convention.” See
Chapter 2 provides in
Within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration. The court shall confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.
Finally, Chapter 2 provides that Chapter 1, regarding non-Convention domestic arbitration, has residual application where there is no conflict with Chapter 2 or the New York Convention as ratified. See
B.
In the 1980s, the Company entered into contracts with the Republic of the Congo to perform public works and supply materials. The contracts were financed through supplier credits extended by Caisse Congolaise d‘Amortissement (“CCA“) that were formalized through promissory notes issued by CCA and guaranteed by the Republic of the Congo. In 1992, the parties signed an agreement for the repayment over ten years in equal, consecutive monthly payments of certain outstanding debts owed to the Company under the contracts. Article 10 provided that any disputes arising from or relating to the agreement would be resolved by final binding arbitration under the Rules of the International Chamber of Commerce (“ICC“). CCA drew up promissory notes endorsed in favor of the Company, and in 1993 the Republic of the Congo issued a series of commitment letters; each commitment letter contained an irrevocable waiver of immunity from legal proceedings or execution and a commitment to submit
When the Congo failed to pay the promised amounts as they came due, and did not respond to the Company‘s formal demand for payment, the Company filed a request in 1998 for arbitration with the International Court of Arbitration of the ICC and the matter was submitted to arbitration. On December 3, 2000, the arbitral tribunal in Paris issued a final award in favor of the Company (“the Award“). The Award included outstanding principal owed under the agreement, interest, penalty interest on various promissory notes, and costs. The Award was summarily confirmed by the Tribunal de Grande Instance of Paris on December 12, 2000, and was upheld on May 23, 2002 by the Court of Appeals of Paris after the Congo appealed to rescind the Award. The Company filed eleven judicial enforcement proceedings to enforce the Award in France, as well as 82 non-judicial bailiff actions.
The Company also obtained judicial recognition of the Award pursuant to the New York Convention in Belgium and Sweden, but obtained no recovery on the amounts owed. On June 17, 2009, the Company initiated proceedings pursuant to the Convention in the Queen‘s Bench Division of the High Court of Justice, Commercial Court in London, England. The High Court entered an order on July 10, 2009, ruling that the Award was enforceable in the same manner as a judgment under section 101 of the 1996 Arbitration Act of England, and recalculating the amount due to include additional interest and other costs (“the English Judgment“). Under English law, the judgment became final, conclusive, and enforceable on March 2, 2010, and remains enforceable for six years from that date. See Declaration of John Arthur Higham, Q.C. ¶¶ 13, 17. The High Court amended the judgment on November 1, 2011 to account for the Company‘s successful seizure of French Francs in partial satisfaction of the Award.
Shortly before, on September 2, 2011, the Company filed a complaint in the federal court in the Southern District of New York to recognize and enforce the English Judgment under the New York Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. Article 53. That court transferred the case to the federal court in the District of Columbia, see
The district court denied the Company‘s motion for summary judgment and dismissed the complaint on the ground that the three-year period for confirmation of foreign arbitral awards in
It is “[a] fundamental principle of the Constitution that Congress has the power to preempt state law.” Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000);
The Supreme Court has observed in the domestic arbitration context that “[t]he FAA contains no express preemptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration.” Volt Info. Sciences, Inc. v. Bd. of Trustees of the Leland Stanford Junior Univ., 489 U.S. 468, 477, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). Accordingly, as the parties agree, this case is governed by the conflict preemption doctrine set forth in Hines v. Davidowitz, 312 U.S. 52, 61, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Pursuant to Hines, federal law will preempt state law where “under the circumstances of [a] particular case, [the challenged state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 312 U.S. at 67, 61 S.Ct. 399. “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects[.]” Crosby, 530 U.S. at 373, 120 S.Ct. 2288; see also Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). Because what “must be implied is of no less force than that which is expressed,” Crosby, 530 U.S. at 373, 120 S.Ct. 2288 (quotation marks and citation omitted), federal law may preempt state law even if the conflict between the two is not facially apparent—as when, for example, the federal and state laws govern different subject matters, see, e.g., Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971). Furthermore, federal law may preempt state law even if both pursue the same ends because “a conflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy,” Arizona, 132 S.Ct. at 2505 (quotation marks, alterations, and citation omitted); see Crosby, 530 U.S. at 379, 120 S.Ct. 2288. In accord with these general principles, Hines preemption analysis entails two steps: first, identifying the purposes of the federal statute; and second, determining what, if any, obstacles are posed by the challenged state law. Traditional preemption principles apply to District of Columbia laws. See, e.g., Wash. Serv. Contractors Coal. v. Dist. of Columbia, 54 F.3d 811, 813, 815 (D.C.Cir.1995).
A.
The basic purpose of FAA Chapter 2 was to implement the New York Convention. “The goal of the Convention, and the principal purpose underlying [the United States‘] adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements
Congress also set a three-year limit for seeking summary confirmation of “an arbitral award falling under the Convention.”
Section 207 was modeled on a similar provision in FAA Chapter 1, which provides that “any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award[.]”
The New York Convention does not limit the period for enforcement of arbitral awards and includes no restriction regarding foreign judgments. Under Article III of the Convention, signatory countries may apply their own statutory periods for the enforcement of arbitral awards, so long as such periods are not unduly short, or may choose, as many countries have, not to impose any time limit on enforcement. The Convention also expressly preserves, under Article VII, arbitral parties’ right to rely upon domestic laws that are more favorable to award enforcement than are the terms of the Convention: “The provisions of the present Convention shall not ... deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law ... of the country where such award is sought to be relied upon.” N.Y. Conv‘n Art. VII. As one oft-quoted academic-practitioner has written, the underlying rationale of Article VII is that the “Convention is aimed at facilitating recognition and enforcement of foreign arbitral awards; if domestic law or other treaties make recognition and enforcement easier, that regime can be relied upon.” Albert Jan van den Berg, The New York Convention of 1958: An Overview, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS 39, 66 (Emmanuel Gaillard & Domenico Di Pietro eds., 2008). Article XI presumes that countries with a “federal or non-unitary” structure of government may implement the Convention in a manner that is internally non-uniform. Id. Art. XI. Thus, the Convention sets minimum protections for the enforcement of international commercial arbitration awards, but does not limit treaty members from affording more protections than the Convention requires. “The Convention ... sets a ‘floor,’ but not a ‘ceiling,’ for enforcement of arbitral awards.” Amicus United States Br. 7.
Neither does the legislative history of the Foreign Arbitral Awards Convention Act indicate that Congress intended Chapter 2 of the FAA to govern not only arbitral awards but the recognition of judgments as well. As explained by the State Department‘s Office of the Legal Adviser to the Senate Foreign Relations Committee, although the general subject of arbitration is within federal jurisdiction if it concerns foreign or interstate commerce, “our purpose in adhering to the [New York] Convention is for the beneficial effects it will produce for the foreign commerce of the United States and not to make any changes with respect to matters that are traditionally within the jurisdiction of the 50 States of the Union.” Certain Underwriters, 500 F.3d at 577 n. 6 (quoting S.REP. NO. 91-702, at 6 (1970) (Kearney testimony) (emphasis added)). In response to the Committee Chairman‘s question, “Does this [New York Convention] seek in any way to extend Federal
The text of the Foreign Arbitral Awards Convention Act and the circumstances of its enactment thus weigh in support of concluding that Congress did not intend to speak beyond the recognition and enforcement of arbitral awards. Permitting the Company to have recourse to the D.C. Recognition Act to enforce the English judgment, then, would appear to be consistent with FAA Chapter 2‘s objectives and to pose no obstacle to the accomplishment of its purpose.
B.
The Congo suggests, however, that various obstacles to the fulfillment of FAA Chapter 2‘s purposes are created if the English Judgment is enforced under the D.C. Recognition Act. It maintains that the three-year period in
Even assuming
“The States’ coordinate role in government counsels against reading fed
It is essential to recognize that a foreign court judgment confirming an arbitral award is not governed by the New York Convention or the Foreign Arbitral Awards Convention Act. As a matter of U.S. law, the mechanism for obtaining recognition and enforcement of a foreign money judgment arising out of an arbitral award has been understood to be distinct from an action seeking recognition and enforcement of an arbitral award. See, e.g., Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co. v. Navimpex Centrala Navala, 989 F.2d 572, 582-583 (2d Cir.1993). Enforcement of a foreign court money judgment has traditionally been governed by state law. See Restatement (Third) of Foreign Relations Law of the United States § 481 comment a (1987); see also Nat‘l Conf. of Commissioners on Uniform State Laws, Uniform Foreign Country Money Judgments Recognition Acts (1962 & 2005).
Amicus United States Br. 14. The distinction between awards and judgments is amplified here by the fact that the English Judgment includes interest that the Company could not have collected had its prior efforts to collect on the Award under the Convention been successful.
As noted, the overriding purpose of FAA Chapter 2 is to facilitate international commercial arbitration by ensuring that valid arbitration agreements are honored and valid arbitral awards are enforced. See Scherk, 417 U.S. at 520 n. 15, 94 S.Ct. 2449. The “amendment of the Federal Arbitration Act” to include Chapter 2 reflects a congressional judgment that the “emphatic federal policy in favor of arbitral dispute resolution ... applies with special force in the field of international commerce.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); see also BG Group, PLC v. Republic of Argentina, --- U.S. ---, 134 S.Ct. 1198, 188 L.Ed.2d 220 (2014). That policy is not undermined—and frequently will be advanced—through recourse to parallel enforcement mechanisms that exist independently of the FAA. See Amicus United States Br. 16 (quoting
The Congo‘s remaining points are likewise unpersuasive. Permitting recourse to the D.C. Recognition Act would, the Congo maintains, “attach[ ] a significance to the English Judgment that is directly at odds with the FAA‘s and the Convention‘s ‘carefully crafted framework for the enforcement of international arbitration awards.‘” Appellees’ Br. 35 (quoting Belize Soc. Dev. Ltd. v. Gov‘t of Belize, 668 F.3d 724, 729 (D.C.Cir.2012) (quoting TermoRio S.A. E.S.P. Grp., 487 F.3d at 935)). The Congo emphasizes that England is a “secondary jurisdiction” with respect to the French arbitral award, and that “court proceedings in another secondary jurisdiction have ‘no preclusive effect’ in recognition proceedings in the United States.” Id. at 36 (quoting Belize Soc. Dev. Ltd., 668 F.3d at 730); see also Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 308-10 (5th Cir.2004). The Company acknowledges, however, that its cause of action under the D.C. Recognition Act “does not call for the [d]istrict [c]ourt automatically to accord preclusive effect to the English Court‘s determinations on the Award under the Convention, but rather to assess the English Judgment under the separate (and clearly distinct) factors for judgment recognition under District of Columbia law.” Reply Br. 21-22. The Congo‘s contentions regarding the “limited territorial effect” of the English Judgment and U.S. courts’ historical reluctance to recognize “judgments on judgments,” Appellees’ Br. 36-37, 46, seem to present public policy arguments better suited, at best, see Amicus U.S. Brief at 17 (citing Nat‘l Conf. of Comm‘rs on Uniform State Laws, Uniform Foreign Country Money Judgments Recognitions Act, § 4 cmt. (2005)), as arguments to a court applying the D.C. Recognition Act than as arguments for preemption.
The Congo further maintains that preemption of the D.C. Recognition Act is supported by “a series of Supreme Court decisions ... preclud[ing] suits under state law that would effectively deprive a defendant of a defense to liability, or deny a benefit, afforded by a federal scheme.” Appellees’ Br. 47-48. Yet those cases are of limited assistance because “the ultimate touchstone in every pre-emption case” is necessarily “the purpose of Congress.” Wyeth, 555 U.S. at 565, 129 S.Ct. 1187. Determining whether Congress intended a particular federal defense or limitation to be available notwithstanding state law is a statute-specific inquiry. There is no indication of such broad intent here; thus, generalized comparisons to other cases applying unrelated statutes are readily distinguishable. In any event, the court is not presented with a case in which defenses under the New York Convention were denied; the Congo invoked its Convention defenses when it appealed, albeit unsuc
C.
As the Supreme Court recently reemphasized, it is a “well-established principle that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers.” Bond v. United States, --- U.S. ---, 134 S.Ct. 2077, 2089, 189 L.Ed.2d 1 (2014) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). Against the historical backdrop of state law on the enforcement of foreign judgments, it is unlikely that Congress would have intended its implementation of the New York Convention to cover both arbitral awards and judgments without mentioning the latter in FAA Chapter 2. Congress‘s “silence on the issue [of preemption], coupled with its certain awareness of the prevalence of state [foreign money judgment enforcement statutes], is powerful evidence that Congress did not intend [FAA Chapter 2] to be the exclusive means of ensuring” arbitration agreements and arbitral awards are enforced. Wyeth, 555 U.S. at 575, 129 S.Ct. 1187 (citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989)). An alternative conclusion could frustrate the collection of debts determined pursuant to the parties’ voluntary arbitration agreement, and it seems unlikely this was Congress‘s intent. The Company pursued the enforcement remedy available under the Convention, yet the debt remains unsatisfied. Its use of a lawful parallel enforcement scheme does not present an obstacle to the summary process Congress adopted in implementing the Convention. Cf. POM Wonderful LLC v. Coca-Cola Co., --- U.S. ---, 134 S.Ct. 2228, 2238, 189 L.Ed.2d 141 (2014).
Our conclusion that FAA Chapter 2 does not preempt enforcement of the English Judgment accords with the longstanding position of the Second Circuit Court of Appeals, the only other federal appeals court to have addressed the relationship between
The Congo‘s attempts to distinguish these cases are unpersuasive. For instance, the Congo insists that Seetransport II “simply did not address the preemption issue,” Appellees’ Br. 53, but that was because the preemption issue had been resolved in Solitron Devices, Inc., 489 F.2d at 1319, and the court had reaffirmed its position, see Victrix Steamship Co. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 n. 2 (2d Cir.1987); Waterside Ocean Navigation Co., Inc. v. Int‘l Navigation Ltd., 737 F.2d 150, 154 (2d Cir.1984); Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 518 (2d Cir.1975). As the relevant facts here are virtually identical to those in Seetransport, the reasoning of the Second Circuit is instructive.
Our conclusion is also consistent with the presumption against preemption, which demands that “in all pre-emption cases, and particularly those in which Congress has legislated in a field which the States have traditionally occupied” without enacting an express preemption provision, the court must assume “the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth, 555 U.S. at 565, 129 S.Ct. 1187 (alterations and quotation marks omitted); cf. Bond, 134 S.Ct. at 2089. As discussed, “the enforcement of foreign judgments was, and remains, presumptive
Accordingly, we hold that the limitations period in FAA Chapter 2,