FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  Nos. 05-30422

Plaintiff-Appellant- 05-30441

Cross-Appellee, D.C. No.

v. CR-99-00666-001-  JCC AHMED RESSAM, also known as Western District of Benni Antoine Noris, Washington, Seattle Defendant-AppelleeCross-Appellant. ORDER 

Filed June 6, 2007

Before: Arthur L. Alarcón, Pamela Ann Rymer, and

Marsha S. Berzon, Circuit Judges.

Order;

Dissent by Judge O’Scannlain

ORDER

A majority of the panel has voted to deny the petition for

rehearing and to reject the suggestion for rehearing en banc.

Judge Alarcón would grant the petition for rehearing and

accept the suggestion for rehearing en banc. 

The full court has been advised of the suggestion for

rehearing en banc. A judge of the court requested a vote on

whether to rehear the matter en banc. However, the matter

failed to receive a majority of votes of the nonrecused active

judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the suggestion

for rehearing en banc is REJECTED. 

7557
O’SCANNLAIN, Circuit Judge, dissenting from the denial of

rehearing en banc, joined by KLEINFELD, GOULD,

BYBEE, CALLAHAN and BEA, Circuit Judges: 

With all due respect to my colleagues, this high-profile

case, involving an individual trained in Afghanistan by alQaeda and convicted of conspiring to detonate explosives at

Los Angeles International Airport as part of a terrorist attack,

is an ideal candidate for rehearing en banc. In United States

v. Ressam, 474 F.3d 597 (9th Cir. 2007), a panel majority

concluded that a conviction under 18 U.S.C. § 844(h)(2)

requires that explosives be carried not only during a felony,

as the statute says, but also in relation to that felony, which

the statute does not say. The panel thus reversed one count of

conviction of “Millennium Bomber” Ahmed Ressam. I dissent from the denial of rehearing en banc because United

States v. Stewart, 779 F.2d 538, 539-40 (9th Cir. 1985), the

two-decade old decision of our court upon which the panel

relied, does not compel the result reached, and, further, by

extending Stewart and reading the “in relation to” language

into § 844(h)(2), we have not only usurped the congressional

function, but have also created a split of authority with every

other United States Court of Appeals that has addressed this

question. See Fed. R. App. P. 35(b)(1)(B). 

I

The facts and circumstances surrounding al-Qaeda trainee

Ahmed Ressam’s plot to detonate explosives at Los Angeles

International Airport and his capture as he entered the United

States are well-detailed in the panel opinion. Ressam, 474

F.3d at 599-601. In brief, Ressam and an associate loaded the

trunk of a rental car with explosives, electronic timing

devices, detonators, fertilizer, and aluminum sulfate, and

drove to a ferry terminal at Twassen, British Columbia. Id. at

600. Ressam drove the rental car aboard the ferry, which later

that day docked in Port Angeles, Washington. When Ressam

attempted to drive his car off, a customs inspector stopped

7558 UNITED STATES v. RESSAM
him for inspection. Id. After the customs officer became

suspicious and subjected Ressam’s vehicle to a more intrusive

search, inspectors discovered some of the bomb’s component

parts. Once the car and all its contents were inventoried and

tested, authorities realized that Ressam had all the materials

for a full scale terrorist attack. Id. Ressam was indicted and

convicted on nine counts, including one count of carrying an

explosive during the commission of a felony, in violation of

18 U.S.C. § 844(h)(2). Id. at 600-01. 

II

The critical legal issue in this appeal is whether Ressam’s

conviction for carrying an explosive during the commission of

a felony must be reversed because the government did not

also prove that Ressam was carrying the explosives in relation to the underlying felony (the “relational element”), which

in this case the government designated as making a false

statement in a customs declaration. See 18 U.S.C. § 844(h)

(“Whoever . . . carries an explosive during the commission of

any felony which may be prosecuted in a court of the United

States . . . shall, in addition to the punishment provided for

such felony, be sentenced to imprisonment for 10 years.”). 

The panel reasoned that our decision in Stewart, 779 F.2d

at 539-40 compelled it to conclude that 18 U.S.C. § 844(h)(2)

contains a relational element. I respectfully disagree. ThenJudge Kennedy’s majority opinion in Stewart construed 18

U.S.C. § 924(c), which made unlawful the carrying of a firearm during the commission of a felony. At the time of Mr.

Stewart’s conviction, § 924(c) did not include an explicit relational element. See Stewart, 779 F.2d at 539. But by the time

his case reached our court on appeal, “Congress [had] revised

section 924(c), combining former subsections 924(c)(1) and

924(c)(2). The 1984 amendment substituted for the word

‘during’ the phrase ‘during and in relation to.’ ” Id.

In determining whether the jury was properly instructed at

Mr. Stewart’s trial, our court focused almost entirely upon the

UNITED STATES v. RESSAM 7559
legislative history of the 1984 amendment. The court’s reading of the legislative history “indicate[d] the ‘in relation to’

language was not intended to create an element of the crime

that did not previously exist, but rather was intended to make

clear a condition already implicit in the statute.” Id. Thus, it

concluded, because the relational element existed at the time

of Stewart’s trial, his jury instruction was in error. 

But critically, there is no similar legislative history as to

§ 844(h)(2) because Congress never amended that statute to

include the language that it added to § 924(c).1 As the Third

Circuit reasoned in reaching a conflicting conclusion than that

of our Ressam panel, “even if the Stewart court was correct

in its analysis of why Congress amended § 924(c), Congress

has not seen fit to modify § 844(h) in the same manner.”

United States v. Rosenberg, 806 F.2d 1169, 1178 (3d Cir.

1986). 

Indeed, it is telling that when Congress did amend

§ 844(h)(2) in 1988, it did not add the relational language. At

that time, Congress had before it our circuit’s decision in

Stewart, 779 F.2d at 539-40, and the Third Circuit’s decision

in Rosenberg, 806 F.2d at 1179. Rosenberg had rejected Stewart’s general reasoning and its reasoning as specifically

applied to § 844(h)(2), instead relying upon the plain, unambiguous language of that section. With these divergent decisions before it, Congress chose in 1988 not to add the “in

relation to” language to § 844(h)(2). As the Supreme Court

has explained, “where Congress includes particular language

in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts inten1

It should go without saying that this may have been a deliberate omission. The carrying of an explosive during the commission of a crime

greatly increases the risk of injury or death to others, more so than even

a firearm. Plus, it is more likely in the case of explosives than firearms that

the “weapon” may go off accidentally. In short, as a policy matter, Congress may have had good reasons for not amending § 844(h)(2) as it

amended the firearms statute. 

7560 UNITED STATES v. RESSAM
tionally and purposely in the disparate inclusion or exclusion.” United States v. Russello, 464 U.S. 16, 23 (1983). This

presumption of a knowing and intentional Congress in my

view compels us to recognize that we are not “constrained” by

Stewart’s reasoning in deciding the proper interpretation of

§ 844(h)(2).

III

But even were the panel constrained by Stewart, I think it

appropriate to rehear this case en banc because our holding

that § 844(h)(2) includes a relational element is in conflict

with every other circuit which has had occasion to consider

the question. See Rosenberg, 806 F.2d at 1178; United States

v. Ivy, 929 F.2d 147 (5th Cir. 1991); United States v. Jenkins,

2005 WL 3440416, ** 3-5 (6th Cir. 2005) (unpublished).2

The main thrust of our sister circuits’ decisions is that the

plain language of § 844(h)(2) says nothing about a relational

element, but only requires carrying the explosives during the

commission of a felony. As Rosenberg stated: 

Section 844(h)(2) by its terms only requires that the

government show that the defendant unlawfully carried an explosive “during the commission of any felony.” The plain everyday meaning of “during” is “at

the same time” or “at a point in the course of.” See,

Webster’s Third New International Dictionary 703

(1961). It does not normally mean “at the same time

and in connection with . . . .” It is not fitting for this

court to declare that the crime defined by § 844(h)(2)

has more elements than those enumerated on the face

of the statute. If Congress sees fit to add a relational

2The government also contends that the Eighth Circuit’s decision in

United States v. King, 230 F.3d 1364 (8th Cir. 2000) (unpublished), conflicts with Ressam, but I think King’s reasoning too difficult to follow and

too conclusory to give it much weight. 

UNITED STATES v. RESSAM 7561
element to § 844(h)(2), it is certainly free to do so,

in the same manner that it added a relational element

to § 924(c). 

806 F.2d at 1178-79. 

Further, as the Supreme Court more recently explained,

when interpreting a statute “[w]ith a plain, nonabsurd meaning in view,” we should not undertake to add missing words

or elements, or to soften the impact of Congress’ enactments.

Lamie v. United States Trustee, 540 U.S. 526, 538 (2004).

According to the Court, “[o]ur unwillingness to soften the

import of Congress’ chosen words even if we believe the

words lead to a harsh outcome is longstanding. It results from

‘deference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of

a bill.’ ” Id. (quoting United States v. Locke, 471 U.S. 84, 95

(1985) (internal citations omitted)). As Judge Alarcón stated

in his dissent, “Mr. Ressam’s proposed instruction would

have required the District Court to add an element to

§ 844(h)(2) that does not appear in the statute enacted by

Congress.” Ressam, 474 F.3d at 606 (Alarcón, J., dissenting

in part). It remains to be seen how, in practice, this additional

requirement will impact the ability of prosecutors in this circuit to obtain convictions in explosives and terrorism cases.

But in my view, Lamie confirms that the wisdom of such

additions are firmly left to the determination of the legislative

branch. 

The reasoning and restraint of Lamie and of our sister circuits’ decisions stand in stark contrast to Stewart and the

panel decision in Ressam.

3

 The great advantage of rehearing

3

I think it is reasonable to question the validity of Stewart’s reasoning

even though the statute has been amended to include the relational element. The reliance in that opinion upon the legislative history of an

amendment to determine the scope of the pre-amendment statute is questionable. See United States v. Price, 361 U.S. 304, 313 (1960) (“[T]he

7562 UNITED STATES v. RESSAM
this appeal before our en banc court is that we could decide

the proper interpretation of § 844(h)(2) and overrule Stewart,

even if it is true that decision has left our circuit with something less than a “clean slate.” Ressam, 474 F.3d at 602.

IV

Regardless of whether Stewart was correctly decided, I

would quite simply not allow that decision to control the outcome of this case without en banc review. Because the panel’s

decision to vacate “Millennium Bomber” Ahmed Ressam’s

conviction under 18 U.S.C. § 844(h)(2) is in square conflict

with the reasoning of our sister circuits and with the cautionary pronouncements of the Supreme Court, we should have

reheard this case en banc. I respectfully dissent from the

court’s decision otherwise.

views of a subsequent Congress form a hazardous basis for inferring the

intent of an earlier one.”). And other courts have not read the legislative

history relied upon by Stewart to be so clear. See Rosenberg, 806 F.2d at

1178 (“[W]e do not find that the legislative history to the 1984 amendment

‘strongly implied’ that the ‘in relation to’ language did not affect the scope

of the statute as originally drafted. At most, we find that the legislative

history fails to explain why the ‘in relation to’ phrase was added to the

statute.”); see also Stewart, 779 F.2d at 540 (noting that the legislative history upon which it relied was “sparse” and “not entirely free of ambiguity”). 

UNITED STATES v. RESSAM 7563
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