UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) ) v. ) Crim. Action No. 12-266 (2), (3) (ABJ) ) DWIGHT KNOWLES, ) ORAL GEORGE THOMPSON, ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION & ORDER Defendants Dwight Knowles and Oral George Thompson are charged in a one-count indictment with conspiring to distribute and to possess with inte nt to distribute at least five kilograms of cocaine on board an aircraft registered in the Uni ted States, in violation of 21 U.S.C §§ 959(b) (2012) 1 (substantive offense); 21 U.S.C. § 963 (conspiracy); and 18 U.S. C. § 2 (aiding and abetting). See Redacted Indictment [Dkt. # 17]. The crimes for which defendants have been charged carry a mandatory minimum sentence of ten years of incarceration and a maximum penalty of life imprisonment. 21 U.S.C. § 960(b)(1)(B). The defendants have each filed mo tions to dismiss the indictment. Def. Thompson’s Mot. to Dismiss Indictment [Dkt. # 120 ] (“Thompson Mot.”); Def. Knowl es’s Mot. to Dismiss Indictment [Dkt. # 128] (“Knowle s Mot.”). Both point out that until their arrest and detention in this case, they had never steppe d foot in the United States, and that the drugs that the government

1 Congress amended section 959 on May 16, 2016 to add a new subs ection “a,” to add a new subsection “b,” and to “redesignat[e] subsections (b) and (c) a s subsections (c) and (d) respectively. Transnational Drug Trafficking Act of 2015, Pub. L. No. 114–154 , 130 Stat 387 (2016). Because the defendants were charged under the previous iteration of the statute, and because the amendments do not substantively change any aspect of the statut ory analysis, the Court will refer to the statute throughout this Memorandum Opinion as it existedin 2012.2 alleges that they conspired to transport were not destined for the United States. So the only nexus to the United States in this case is that the airplane that def endants allegedly used in furtherance of the conspiracy was regist ered in the Un ited States. Both defendants argue that bringi ng them before a court in the United States to answer charges of United States law violates the Due Process Clause. Thompson Mot. at 1; Knowles Mot. at 10–12. Knowles has also advanced the position – which Thomps on has adopted – that the statute involved in this case does not authorize an exercise of extrate rritorial jurisdiction over the offense of possession with intent to distribute, as opposed to distributi on, and that Congress lacked the power to “criminalize criminal activity with no nexus to the Un ited States” in any event. Knowles Mot. at 1–2; Mot. to Join & A dopt Mot. of Codefendant [Dkt. # 1 37]; Min. Entry (May 19, 2016) (noting that the Court grante d Thompson’s motion to adopt Knowl es’s motion). The government opposes both motions. Gov’t’s Mem. in Opp. to Thompson Mot. [D kt. # 123] (“Opp. (Thompson)”); Gov’t’s Mem. in Opp. to Knowles Mot. [Dkt. # 130] ( “Opp. (Knowles)”). Defendant Knowles replied in s upport of his motion; Thompson did not file a reply. See Def. Knowles Reply in Supp. of Knowle s Mot. [Dkt. # 132] (“Knowles R eply”). Defendants have raised important questions about the proper int erpretation of 21 U.S.C. § 959 (2012), the limits of Congress’ s enumerated powers to crimina lize acts that take place on foreign soil, and whether prosecutions based on the statute comport with due process. But the Court finds that both of the motions to dismiss must be denied. The text of the provision that creates extraterritorial jurisdiction – criminalizing an “act of distribution” that occurs on foreign soil, see 21 U.S.C. § 959(c) (2012) – and the str ucture of the statute as a whole reflect Congress’s intention to reach possession with intent to distribute. Further , the commerce clause of the United States Constitution gave Congress the authority to enact section 959(b). Finally, defendants’ due3 process arguments fail because an international treaty placed b oth on notice that the alleged conduct in this case could subject them to prosecution in a fore ign state. The Court notes that its ruling on the due process question rests on its reading of United States v. Ali , 718 F.3d 929 (D.C. Cir. 2013), and the existence of the treaty, and that the govern ment has not pointed to any facts other than the registration of the airplane to justify the exer cise of United States jurisdiction over these particular defendants. See Notice of Gov’t’s Position [D kt. # 131] (“Gov’t Notice”) at 1.
BACKGROUND I. Factual Background The government alleges that the defendants “are members of a hi gh-level drug transportation organization res ponsible for conspiring to trans port on board aircraft registered in the United States multi-thousand kilogram quantities of cocaine .” Status Report Regarding Gov’t’s Extradition Reqs. to Colombia [Dkt. # 22] ¶ 2. The gove rnment’s evidence at trial will consist of “email communications obtained pursuant to federal se arch warrants in this investigation, lawful wiretaps in Colombia, information from co nfidential sources, consensuallyrecorded conversations, and documents and photographs provided to the Government by Bahamian, Haitian, and Colombian law enforcement authorities.” Id. That evidence will allegedly show that “between May 2011 and December 2012, the Defendants and others arranged to transport between 2,400 and 4,500 kilograms of cocaine on-board the United States registered aircraft bearing tail number N157PA . . . from the Colombia-Venezuela border to Honduras.” Id. The government has summarized de fendants’ roles in the alleged c onspiracy as follows: [F]rom on or about at least May 2011 to December 12, 2012, Defe ndants Thompson and Knowles, while based in Santa Marta, Colombia, ente red into an agreement with various co-conspirators, to include, but not limited to, pilot Dario Davis and drug-trafficker Trevor Ferguson, bothbased in Nassau, Bahamas, to transport large quantities of cocaine. Def endant Thompson utilized his contacts in Colombia and Venezuela – to inc lude cocaine brokers, investors, sources of supply, and members of dru g4 trafficking organizations – to attempt to arrange various cocaine transportation transactions, in cluding the transportation of large quantities of cocaine via boat, aircraft, and shipping containers in furth erance of this conspiracy. As part of this cons piracy, Defendants Thompson and Knowles worked together to attempt to utilize various aircraft to traffi c cocaine, including U.S. registered and foreign registered aircraft, primarily located in the United States, the Bahama s, the Dominican Republic, Panama, and Belize. One aircraft, among other s, that the Defendants conspire d to use to traffic narcotics was a U.S. registered aircraft with tail numb er N157PA that was ultimately detained and seized in Haiti, resulting in the arrest of Dario Davis and Trevor Ferguson. Opp. (Thompson) at 2; Opp. (Knowles) at 2. II. Procedural History The defendants were indicted, under seal, 2 on December 12, 2012, and charged with one count of conspiring, “in the Bahamas, Colombia, Haiti, Honduras , Venezuela, the Dominican Republic, and elsewhere . . . to know ingly and intentionally, on b oard an aircraft registered in the United States or owned by a United States citizen, distribute, and possess with intent to distribute, five kilograms or more of a mixtu re and substance containing a d etectable amount of cocaine,” in violation of 21 U.S.C. §§ 959( b) (2012), 960(b)(1)(B), 963, and 18 U.S.C. § 2. Sealed Indictment [Dkt. # 3]. Defendant Thompson – a Jamaican citizen residing in C olombia – was extradited to the United States on or around March 28, 2014, see Arrest Warrant (Thompson) [Dkt. # 39], and defendant Knowles – a Bahamian citizen also residing in Colombia – was extradited on or around September 25, 2014. See Arrest Warrant (Knowles) [Dkt. # 49]. Defendant Thompson filed a motion to dismiss the indictment on February 12, 2016, Thompson Mot., and defendant Know les filed a motion to dismiss the indictment on April 11,

2 The seal was lifted after the defendants were extradited to th e United States. See Order (May 23, 2013) [Dkt. # 16] (unsealing the indictment, but redacti ng Knowles’s name); Redacted Indictment. It appears to the Court that the government has not filed an unredacted Indictment that includes defendant Knowles, but since the case against Kno wles has not proceeded under seal, the Court will not seal this Memorandum Opinion.5 2016. Knowles Mot. The government has opposed both motions. Opp . (Thompson); Opp. (Knowles). The Court held a hearing on the motions on May 19, 20 16. Min. Entry (May 19, 2016). Defendant Thompson initially challenged the indictment on due p rocess grounds. He asserts that “under the circumstances, bringing Thompson before a court in the United States to answer charges of United States law violates the Due Process Cl ause,” because he “could not have ‘reasonably anticipate[d]’ that his conduct could result in ‘be ing haled into court in this country.’” Thompson Mot. at 1, 6, quoting Ali , 718 F.3d at 944. He maintains that there is “no nexus between his actions abroad and the United States,” and he submits that the prosecution in the United States is unfair under the particular fac tual circumstances of the case : [H]e is a Jamaican citizen residing in Colombia, not the United States. Prior to his extradition, he had neither entered the United States no r had any contact with the United States. None of the alleged criminal c onduct occurred within the United States. None of the alleged communi cations occurred with anyone located in the United States. No financia l assets were deposited into, withdrawn from, o r interacted with the United S tates monetary system. No alleged coc onspirators were recruited from , nor managed by, any person located in the United [S]tates. In fact , it appears that none of the conspiratorial c onduct occurred within the Uni ted States. Id. at 5. Defendant Knowles raised three ch allenges to his prosecution in the United States. First, he argues that the indictment mus t be dismissed insofar as it a lleges conspiracy to possess narcotics with intent to distribute because while the substantive provisi on, 21 U.S.C. § 959(b) (2012), proscribes manufacture, distri bution, and possession aboard an a ircraft registered in the United States, the provision that provide s for extraterritorial jurisd iction, 21 U.S.C. § 959(c) (2012), reaches only “acts of manufacture or distribution.” Knowles Mo t. at 3–7. Second, Knowles contends that section 959(b) is unconstitutional because Congre ss lacked the enumerated power to criminalize “drug trafficking on board a United States register ed airplane without limitation.” Id.6 at 7–10. 3 Finally, Knowles asserts that the prosecution violates his due process rights because there is not a “sufficient nexus between the defendant and the United States,” and so the application of section 959(b) to his conduct w ould be “arbitrary or fundame ntally unfair.” Id. at 10–12, quoting United States v. Al Kassar , 660 F.3d 108, 118 (2d Cir. 2011). The government responds that “Know les’s interpretation of the st atute is contrary to the statute’s plain language and history, as well as rules of statut ory construction.” Opp. (Knowles) at 4. It argues that section 959(b) was authorized by Congress ’s enumerated power to regulate foreign commerce, and that it is necessary and proper to implem ent the treaty power. Id. at 9–11. Finally, it contends that the due process arguments should fail because the defendants “cannot reasonably claim that [they] di d not know [their] conduct was i llegal, as ‘drug trafficking is condemned universally by law-ab iding nations,’” Opp. (Thompson) at 6, quoting United States v.
Suerte , 291 F.3d 366, 371 (5th Cir. 2002), and because “there is noth ing arbitrary or fundamentally unfair about haling [defendants] into U.S. court for conspiringto use U.S. aircraft to traffic cocaine.” Opp. (Knowles) at 14.
STANDARD OF REVIEW A criminal defendant may move to dismiss an indictment before tr ial based on a “defect in the indictment,” such as the “fa ilure to state an offense.” Fe d. R. Crim. P. 12(b)(3)(B). But a dismissal of an indictment “is granted only in unusual circumst ances,” because “a court’s ‘use[] [of] its supervisory power to dismiss an indictment . . . directly encroaches upon the fundamental role of the grand jury.’” United States v. Ballestas , 795 F.3d 138, 148 (D.C. Cir. 2015), quoting
Whitehouse v. U.S. Dist. Court , 53 F.3d 1349, 1360 (1st Cir. 1995). For an indictment to

3 Defendant Thompson has joined in these attacks on the prosecut ion. Mot. to Join & Adopt Mot. of Codefendant; Min. Entry (May 19, 2016).7 sufficiently state an offense, it need only “inform the defendant of the nature of the accusation against him,” id. at 148–49, quoting United States v. Hitt , 249 F.3d 1010, 1016 (D.C. Cir. 2001), or, in other words, it must inf orm the defendant of “the precise offense of which he is accused so that he may prepare his defense.” United States v. Verrusio , 762 F.3d 1, 13 (D.C. Cir. 2014). Constitutional objections that challenge the validity of the ch arge are properly brought under Rule
12. See United States v. Seuss , 474 F.2d 385, 387 n.2 (1st Cir. 1973). Under the Federal Rules of Criminal Procedure, an indictment mu st contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c). “When considering a motion to dismiss an ind ictment, a court assumes the truth of [the government’s] factual allegations.” Ballestas , 795 F.3d at 149, citing Boyce Motor Lines v. United States , 342 U.S. 337, 343 n.16 (1952).
ANALYSIS The statutory provision at the h eart of this case, 21 U.S.C. § 9 59(b) (2012), is entitled “Possession, manufacture, or di stribution by person on board ai rcraft,” and it provides: 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 citiz en or registered in the U nited 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. 21 U.S.C. § 959(b) (2012). In a section entitled “Acts committed outside territorial juris diction of United States; venue,” the statute a ddresses extraterritorial jurisdiction: This section is intended to reach acts of manufacture or distri bution committed outside the territorial jurisdiction of the United St ates. Any person who violates this section shall be tried in the United S tates district8 court at the point of entry where such person enters the United States, or in the United States District Court for the District of Colombia. 21 U.S.C. § 959(c) (2012). I. The Court has jurisdic tion over the defendants. The starting point for the consideration of the pending motions in this case is the “longstanding principle of Americ an law that legislation of Con gress, unless a contrary intent appears, is meant to apply only within the territorial jurisdic tion of the United States.” Morrison v. Nat’l Austl. Bank Ltd. , 561 U.S. 247, 255 (2010), quoting EEOC v. Arabian Am. Oil Co. , 499 U.S. 244, 248 (1991); see also id . (“When a statute gives no clear indication of an extraterritor ial application, it has none.”); Kiobel v. Royal Dutch Petroleum Co. , 133 S. Ct. 1659, 1664 (2013). As the D.C. Circuit has explai ned, though, this principle “repr esents a canon of construction, or a presumption about a statute’s meaning, rather than a limit on u pon Congress’s power to legislate,” so “notwithstanding the presumption against extraterritoriality , a statute will be construed to apply extraterritorially if Congress gives a ‘clear indication’ of th at intention.” Ballestas , 795 F.3d at 144, quoting Nat’l Austl. Bank , 561 U.S. at 255. In the only criminal statute at issue in defendants’ motions, C ongress was unequivocal about what it had in mind: This section is intended to reach acts of manufacture or distri bution committed outside the territorial j urisdiction of the United St ates. 21 U.S.C. § 959(c) (2012). And in Ballestas , the Court of Appeals held that when a substantive offense is covered by an expre ss extraterritoriality provision, the charge of conspiracy to commit the offense has the same extraterritorial reach. 795 F.3d at 14 4; see also Ali , 718 F.3d at 939. So there is no dispute that under the precedent that is binding onthis Court, the Court has extraterritorial jurisdiction over the prosecution of these def endants for conspiring to distribute a9 controlled substance on board an aircraft registered in the Uni ted States in violation of 21 U.S.C. §§ 959(b) (2012), 960(b)(1)(B), and 963. But the indictment charges the d efendants with conspiring both to distribute and to possess with intent to distribute the cocaine. See Redacted Indictment. While there is no question that section 959(b) proscribes both th e distribution of, and the pos session with intent to distribute, a controlled substance on b oard a U.S. registered aircraft, the e xtraterritoriality provision in section 959(c) specifies only that it is intended to reach “acts of manufacture or distribution” outside of the United States. 21 U.S.C. §§ 959(b), (c) (2012). Because “whe n a statute provides for some extraterritorial application, the presumption against extraterr itoriality operates to limit that provision to its terms,” Nat’l Austl. Bank , 561 U.S. at 265, defendants argue that the indictment must be dismissed, at least in part, to eliminate possession wi th intent to distribute as an alternative object of the conspiracy, since C ongress did not clearly express its intention to reach that offense outside of the United States. Knowles Mot. at 7. Another court in this district has recently rejected this argum ent. See United States v. Bodye , No. 11-cr-110 (JDB), 2016 WL 1091058, at *2–4 (D.D.C. Mar. 21, 20 16). Based upon its analysis of the text of the provision and the structure of the statute as a whole, this Court reaches the same conclusion. Section 959 pr ovides the necessary “clear i ndication” that Congress intended to extend the court’s jurisdiction beyond U.S. borders to reachthe offense charged in the indictment. See id. ; see also Ballestas , 795 F.3d at 144, quoting Nat’l Austl. Bank , 561 U.S. at
255. First of all, the plain language of the jurisdic tional provisio n in subsection 959(c), “this statute is intended to reach acts of manufacture or distribution” – as opposed to, for example, “this statute is intended to reach the manufacture or distribution” – i s broad enough to express an10 intention to reach possession with intent to distribute and cer tainly conduct in furtherance of a conspiracy to possess with intent to distribute. See 21 U.S.C. § 959(c) (2012); see also United States v. Fawaz , slip. op. at 3 (S.D.N.Y. June 7, 2013) (observing that the phra se “acts of distribution” fairly encompasses possession with intent to distribute, and that possession may be an integral part of the process of distribution). So the Court d oes not need to rewrite the statute to find that it applies in this case. The extraterritorial design is also reflected in other aspects of section 959, and the legislature’s intent becomes quite evident when one reviews the statute in its entirety and considers its structure, context, and purpose. See Nat’l Austl. Bank , 561 U.S. at 265 (“Assuredly context can be consulted as well.”). The orig inal version of section 959 was enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“D APCA”), and that statute contained a core provision, sec tion 841, that made it unlawful to manufacture, distribute, or possess with intent to distribute a controlled substance within the Uni ted States. Pub. L. No. 91-513, § 401, 84 Stat. 1236, 1260–61 (1970). Section 959, by contrast, includ ed an express extraterritoriality provision, and it prohibited the manufacture or distribution of a controlled substance anywhere, but only if it was done with the i ntent or knowledge that the drugs would be unlawfully imported into the United States. Id. § 1009, 84 Stat. at 1289. So the object behind enacting section959 was to reach conduct occurring outside the United States that would not be covered otherwise, and it was the planned importation that provided the jurisdictional ho ok at that time. When section 959 was amended i n 1986, the original prohibition a gainst manufacture and distribution with the intent to import remained embodied in sect ion (a), and the prohibition against possession with intent to distribute was added in section (b). See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 3161, 100 Stat. 3207 (1986). But section 959 do es not proscribe possession11 with intent to distribute in general – only the possession on bo ard an aircraft with a U.S. nexus – and it does not proscribe possession with intent to distri bute alone. Section 959(b), which is entitle d “Possession, manufacture, or distribution by person on board aircraft,” provides: 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 citiz en or registered in the U nited 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. 21 U.S.C. § 959(b) (2012). The Cour t finds it significant that the prohibitions against manufacture and distribution are repeated i n section (b) along with possess ion with intent to distribute, with the use of a U.S. aircraft as the new, alternative jurisdictional pr edicate for the extr aterritorial reach. The foundational element of the involvement of a U.S. citizen o n board the aircraft, or the U.S. ownership or registry of the air craft, applies to both subsecti ons 959(b)(1) and (b)(2), and there would have been no reason to premise all of section (b) on this very specific U.S. nexus if only one of the prongs of the section was meant to extend to conduct abroad. So the nexus requirement supports the conclusion that all of subsection (b) was meant to reach outside of the United States – indeed that seems to be the goal of the airplane provisio ns. And the fact that the new provision was inserted in the pa rticular section of DAPCA that was already extraterritorial in its entirety lends further support to the notion that Congress expe cted it to have a similar reach. See Bodye , 2016 WL 1091058, at *3. As the courts noted in Bodye and Fawaz , it is significant that the three provisions that comprise section 959 were not all enacted at the same time. “If the possession prohibition and the extraterritoriality provision ha d been enacted simultaneously, it would be hard to avoid [the]12 conclusion that the omission of ‘possession’ from the latter wa s intentional and hence meaningful.” Bodye , 2016 WL 1091058, at *3. But “[t]he fact that § 959(b) was added only in 1986 weakens any inferences to be drawn from differences between § 959(b) and 959(c).” Fawaz , slip. op. at 4 n.2, citing Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008). Moreover, Knowles’s interpretation would render section 959(b)(2 ) to be superfluous: [I]f § 959(b)(2) did not have extraterritorial reach, it would on ly cover conduct that was already prohibited by 21 U.S.C. § 84 1 . . . . Since its enactment in 1970, § 841 has forbidden anyone to “possess with i ntent to . . . distribute . . . a controlled substance” . . . including on board airplanes . . . . Thus, it would have been pointless for Congress in 1986 to have enacted § 959(b)(2) without e xtraterritorial application – p ossession with intent to distribute on aircraft within the United States was clearly already illegal. Bodye , 2016 WL 1091058, at *3; see also id. (“[T]he ‘canon that statutes should be read to avoid making any provision superfluous, void, or insignificant’ stron gly supports reading § 959(b)(2) as having extraterritorial reach.”), quoting Milner v. Dep’t of Navy , 562 U.S. 562, 575 (2011); Fawaz , slip. op. at 4. Furthermore, as the other two c ourts have observed, Knowles’s re ading of the statute lacks logic. It “would render § 959(b)(2 ) a stranger to the statute – a lone provision of only territorial application in a family of provi sions with extraterritorial rea ch,” Fawaz , slip. op. at 4, when there is no justification for that anomaly. As the court in Bodye concluded: [I]f § 959(b)(2) were limited to conduct occurring within the Un ited States, the nexus requirement would serve no function other than to carve out a strange exception for foreign defendants on foreign planes. It simply does not make sense to impose this non-territorial nexus requirementunless the prohibition in § 959(b)(2) a pplies to conduct abroad. 2016 WL 1091058, at *4. This interpretation is also consistent with the decision in United States v. Lawrence , 727 F.3d 386 (5th Cir. 2013), in which the Fifth Circuit concluded that “an analysis of both the statutory13 language and structure of the s tatute” supported extraterritori al application of the prohibition against possession with intent to distribute in section 959(b). Id. at 393. As part of its statutory analysis, the court pointed out that the second sentence of sec tion 959(c), which states that “any person who violates this section shall be tried in the United St ates District Court at the point of entry where such person enters the United States or in the Unit ed States District Court for the District of Columbia,” applies to the violation of the entire s tatute, including section 959(b)(2), and there can be no argument th at the venue provision in section 959(c) is limited to manufacture and distribution only. See id. For all of these reasons, the Court finds that the statute supp lies the Court with jurisdiction over the offense alle ged in the indictment. II. Congress had the power to enact the extraterritoriality prov ision Knowles argues next that even if Congress intended to give the co urts extraterritorial reach in this instance, it lacked the constitutional authority to do so. Knowles Mot. at 7–10. He submits that none of Congress’s enumerated powers includes the authority “to criminalize international drug trafficking without any nexus to the United States.” Id. at 7. But the statute challenged here does not “criminalize internationa l drug trafficking without an y nexus to the United States” – it criminalizes international drug trafficking on board aircraft r egistered in the United States. 21 U.S.C. § 959(b) (2012). Knowles seems to concede as much in his reply by arguing that “[t]he prosecution’s sole argument in s upport of the Foreign Commerce Clause argument is that the conspiracy attempted to procure v arious U.S. registered airplan es. Even assuming arguendo the truth of this allegation, it is an insufficient basis upon whic h to predicate jurisdiction.” Knowles Reply at 9. According to Knowles, neither the foreign commerce cla use, nor the Offences clause, provide the necessary enumerated power in this case. Knowles M ot. at 7–10.14 The Court must presume that a federal statute is constitutional. See United States v.
Morrison , 529 U.S. 598, 607 (2000) (“Due respect for the decisions of a coordinate branch of Government demands that we inva lidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”). In light o f that presumption, Knowles’s enumerated powers objections fail. Under both the foreign and interstate commerce clauses, both because an aircraft is an “instrumentality” of commerce, and be cause it was rational for Congress to conclude that international dr ug trafficking aboard an aircr aft registered in the United States would “substantially affect” both foreign and interstate commerc e, the Court finds that the statute is constitutional as applied to these defendants. 4 “The Federal Government ‘is acknowledged by all to be one of enumerated powers.’” Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB ), 132 S. Ct. 2566, 2577 (2012), quoting McCulloch v. Maryland , 17 U.S. (4 Wheat.) 316, 405 (1819). So, “rather than grantin g general authority to perform all the conceivable func tions of government, the Consti tution lists, or enumerates, the Federal Government’s powers.” Id. “In our federal system, ‘Congress cannot punish felonies generally;’ it may enact only those criminal laws that are conn ected to one of its constitutionally enumerated powers, such as the authority to regulate interstat e commerce.” Torres v. Lynch , 136 S. Ct. 1619, 1624 (2016), quoting Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 428 (1821).

4 Defendants are bringing an as-applied challenge to the statute , as they must. A party bringing a facial challenge “must establish that no set of circ umstances exists under which the Act would be valid.” United States v. Salerno , 481 U.S. 739, 745 (1987). Neither party suggests that Congress would lack the power to prohibit, for example, drug tr afficking aboard a domestic flight on an aircraft registered in the United States. So the Court is concerned only with the application of the statute to defendants’ a lleged conduct: use of an aircr aft registered in the United States to traffic narcotics internationally. It also bears noting that another judge in this district rejecte d a nearly-identical challenge to Congress’s enumerated powers to enact section 959(b), albeit for slightly different reasons. See Bodye , 2016 WL 1091058, at *4–6.15 Article I, section 8, clause 3 grants Congress the power “[t]o r egulate Commerce with foreign Nations, and among the several S tates, and with the Indian Tribe s.” U.S. Const. art. I, § 8, cl. 3. The Constitution further authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and al l other Powers vested by this Constitution in the Government of the United States.” U.S. Const . art. I, § 8, cl. 18.
A. The Commerce Clause The Supreme Court has enumerated“three broad categories of act ivity that Congress may regulate” under the interstate commerce power: First, Congress may regulate the use of channels of interstate commerce. Second, Congress is empowered t o regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate a ctivities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce , i.e. , those activities that substantially affect interstate commerce. United States v. Lopez , 514 U.S. 549, 558–59 (1995) (internal citations omitted); see also NFIB , 132 S. Ct. at 2578, quoting Morrison , 529 U.S. at 609. The Supreme Court has indicated that the foreign commerce power is at least as broad as the power to regulate interstate commerce. See Japan Line, Ltd. v. Cty. of L.A. , 441 U.S. 434, 448 (1979) (“Although the Constitution, Art. I, § 8, cl. 3, grants C ongress power to regulate commerce ‘with foreign Nations’ and ‘among the several States’ in parall el phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.”); Atl. Cleaners & Dyers v. United States , 286 U.S. 427, 434 (1932) (observing that Congress’s “power whe n16 exercised in respect of foreign commerce may be broader than wh en exercised as to interstate commerce”). 5 But the Supreme Court has never clearly delineated the differenc e between the foreign commerce clause and the interstate commerce clause. And the D. C. Circuit has not opined on whether Congress’s power to regulate under the foreign commerce clause is equivalent to, or broader than, the power to regulate interstate commerce. Some C ourts of Appeal have analyzed questions surrounding the foreigncommerce power using intersta te commerce clause jurisprudence. See, e.g. , United States v. Pendleton , 658 F.3d 299, 307–11 (3d Cir. 2011); United
States v. Bredimus , 352 F.3d 200, 205–08 (5th Cir. 2003); see also United States v. Homaune , 898 F. Supp. 2d 153, 159–60 (D.D.C. 2012). Other circuits have used the interstate commerce framework as a guide, but concluded that the foreign commerce cl ause encompasses broader

5 Knowles suggests that the foreign commerce clause permits only the regulation of commerce with foreign nations, not between foreign nations. Knowles Mot. at 9; see also Knowles Reply at 8. He finds support in United States v. Weingarten , 632 F.3d 60 (2d Cir. 2011), in which the Second Circuit concluded that “a statute criminalizing the transportation of a minor in foreign commerce for unlawful sexual activity did not extend to ‘travel occurring wholly between two foreign countries and without any territorial nexus to the Unit ed States.’” Knowles Mot. at 9, quoting Weingarten , 632 F.3d at 71. But Weingarten is not binding on this Court, and in any event, it is distinguishable. First, the Second Circuit emphasized th at it was conducting a statutory – and not a constitutional – analysis. Weingarten , 632 F.3d at 71 (describing the “issue of statutory construction”). Second, the cour t made clear that its statutory construction analysis “would be substantially different if [the statute] prohibited travel for the purpose of engaging in the defined sexual acts where such travel affects foreign commerce,” id. , which is the situation presented in this case.17 powers than the interstate commerce clause. See, e.g. , United States v. Bollinger , 798 F.3d 201, 208–216 (4th Cir. 2015). 6 The two clauses are targeted at different concerns. The interstate commerce clause has been interpreted “against the backdrop of, and constrained by, federalism concerns that are inapposite in the international arena.” Id. at 210. The foreign commerce power, by contrast, “implicates concerns that are different from those present in i nterstate and tribal regulation.” Id.
at 212. 7 But the Court need not choose be tween these competing tests, be cause it finds that the statute at issue in this case substantially affects both interst ate and foreign commerce, and that even if the foreign commerce power is only as broad as the powe r to regulate interstate commerce, the statute passes muster unde r the more restrictive test. Congress added the aircraft provision, 21 U.S.C. 959(b) (2012), as part of the Anti-Drug Abuse Act of 1986. Pub. L. No. 99-570, § 3161, 100 Stat. 3207 ( 1986). The provision – which regulates the use of aircraft registered in the United States t o possess, distribute, or manufacture narcotics – may be fairly assesse d as the regulation of either aninstrumentality of foreign

6 The Ninth Circuit has also exp ressed the view that the methods of analysis for the two clauses should be different. United States v. Clark , 435 F.3d 1100, 1103 (9th Cir. 2006) (finding that using the interstate commerce clause to resolve foreign commerce clause issues “can feel like jamming a square peg into a round hole,” and instead adopting a“global, commonsense approach” to the question of whether a statute properly criminalized comm ercial conduct overseas). The Sixth Circuit has expressed skepticism that the foreign commerc e power is broader – but declined to articulate a definitive test to analyze the foreign commerce power. See United States v. AlMaliki , 787 F.3d 784, 791–94 (6th Cir. 2015). 7 The Fourth Circuit suggested, gi ven the lack of federalism conc erns, that Congress can regulate any foreign commerce activities that “demonstrably aff ect such commerce.” Bollinger , 798 F.3d at 215–16. The Supreme Court has indicated that Congre ss can, pursuant to its interstate commerce clause power, regulate (1) the channels of interstate c ommerce; (2) the instrumentalities of interstate commerce; and (3) activities which substantially affect interstate commerce. See Lopez , 514 U.S. at 558–59.18 commerce, the airplane itself, or an activity, the trafficking o f narcotics aboard a U.S.-registered aircraft, that “substantially affect[s]” both foreign and inter state commerce. Congress may regulate the instrum entalities of commerce, includ ing the airplane use d in this case. Congress may regulate the channels of interstate commerce by re gulating the highways, airspace, and navigable waterway s of interstate transportation. See Lopez , 514 U.S. at 558. Congress may also regulate the instrumentalities of commerce by regulating, for example, the means of interstate travel, id. , and the intrastate destruction of aircraft. Id. , citing Perez v. United
States , 402 U.S. 146, 150 (1971). So Congress may regulate an instrume ntality of both interstate19 and foreign commerce – an airplane – which was registered under th e laws of the United States 8 and found in a foreign nation – pursu ant to its commerce powers. Congress may also regulate activities which substantially affec t commerce. “The power over activities that substantially affect interstate commerce can be expansive.”
NFIB , 132 S. Ct. at 2578. But that power has limits. Congress may regu late non-economic

8 The requirements for the registration of aircraft are set forth at 49 U.S.C. § 44101 et seq. Those regulations are not particularly relevant here, but it is notable that registration of aircraft is limited to United States citizens and lawful permanent resident s, or foreign corporations that are organized and doing business unde r the laws of the United State s or using the plane primarily in the United States. See id. § 44102. Defendant Knowles states that “registration is not limite d to citizens of the United States, but is available to foreign indi viduals and corpor ations,” Knowles Mot. at 10 n.3; see also Knowles Reply at 9 (describing a ircraft registration as “entire ly a creature of domestic administrative law”), and he cites to the Federal Avi ation Administration’s website. See Knowles Mot. at 10 n.3; see also Knowles Reply at 9. But the FAA website correctly reflects the statutory requirement that the only individual foreign citi zen who can register a plane here is one “lawfully admitted for permanent residence in the U.S.” See “Aircraft Registry, Register an Aircraft,” Fed. Aviation Admin., http://www.faa.gov/licenses_ce rtificates/aircraft_certification/ aircraft_registry/register_a ircraft/ (last visited June 15, 2016 ). And the Court takes issue with K nowles’s characterization of th e registration scheme as “entirely a creature of domestic administrative law.” Knowles Reply at 9. While it is true that the procedure for obtaining U.S. regi stration is set forth in U.S. regulations, defendant’s focus on the domestic aspect of the system ignores the international purpose behind aircraft registration in general and the use of country-s pecific codes in particular. I n 1944, the parties to the Convention on International Civil Aviation announced: “[a]ircraft have th e nationality of the State in which they are registered,” and “[e]very aircraft engaged in internat ional air navigation shall bear its appropriate nationality and regi stration marks.” Convention on Int’l Civil Aviation, Art. 17, 20. Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 296. The Convention e stablished the United Nations International Civil Aviation Org anization, which maintains the international standards for aircraft registration, including the alphanumeric codes used to identify the country of registration. See Convention on Int’l Civil Aviation, http://www.icao.int/secretariat/legal/List%20of%20 Parties/Chicago_EN.pdf (list of p arties) (last visited June 15, 2 016); Aircraft Nationality Marks, Nat’l Emblems & Common Marks, http://www.icao.int/safety/airnav igation/NationalityMarks/ NationalityMarks%20WEB%20en.pdf (last visited June 15, 2016); see also 14 C.F.R. § 45.21(a) (“[N]o person may operate a U.S.- registered aircraft unless that aircraft displays nationality and registration marks . . . .”); id. § 45.23 (“Each operator of an aircraft must display . . . aircraft marks consisting of the Roman capital letter ‘N’ (denoting United States registration) followed by the registration number of the aircraft.”). In short, the country code is a creation of international convention that conveys an inter nationally unders tood message.20 criminal activity, but only where that activity has a substantia l effect on commerce, Morrison , 529 U.S. at 610, and only when Congress articulates a “rational basis” to conclude that the activity would have a substantial effect on commerce. Lopez , 514 U.S. at 557. In the Court’s view, even if the limits on Congressional power that apply to the regulati on of interstate commerce extend to foreign commerce, that test has been met in this case. The Supreme Court expounded on th e rational basis requirement i n Gonzales v. Raich , 545 U.S. 1 (2005). In Raich , the Court assessed whether C ongress could prohibit the local a nd intrastate cultivation and use of marijuana, which had become le gal under California state law. Id. at 6–8. The Court noted that Title II of DAPCA, also known as the Controlled Substances Act (“CSA”), made the following findi ngs, among others, about the imp acts of narcotics trafficking on

commerce: 9 A major portion of the traffic incontrolled substances flows through interstate and foreign commerce. Incidents of the traffic whic h are not an integral part of the interstate or foreign flow, such as manufa cture, local distribution, and possession, noneth eless have a substantial an d direct effect upon interstate commerce because – (A) after manufacture, many controlled substances are transported in interstate commerce, (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and (C) controlled substances possessed commonly flow through interstate commerce immediat ely prior to such possession.

9 It is true that “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce .” Lopez , 514 U.S. at 562. However, Congressional findings “enable [the Court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce .” Id. at 563. In Lopez , the Court struck down the Gun-Free School Zones Act of 1990, which prohib ited the possession of guns in school zones, because that law cont ained “no jurisdictional ele ment which would ensure, through case-by-case inquiry, that the firearm possession in question a ffects interstate commerce.” Id. at 561.21 Id. at 12 n.20, quoting 21 U.S.C § 801(3). Given those findings, the Court found “no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of mariju ana would leave a gaping ho le in the CSA.” Id. at 22. The Court concluded that Congress c ould lawfully proscribe the purel y intrastate cultivation of marijuana through the CSA as a necessary and proper means to imp lement the commerce clause.
Id. ; see U.S. Const. art. I, § 8. 10 The provision under which defendants are charged, 21 U.S.C. § 95 9 (2012), was also originally enacted as part of the statute involved in Raich

. See DAPCA § 1009, 84 Stat. 1289. So, the operative statute begins withthe same Congressional pronouncements that the Court recited in
Raich , and they apply with equal force to section 959(b). The preamb le to DAPCA sets forth Congress’s understanding that drug s travel through both interstate and foreign commerce, and that all drug trafficking – even purely intrastate activity – affects interstate commerce. See 21 U.S.C. § 801. So, for section 959 to be valid, the Court needs to only f ind that Congress had a rational basis for concluding that acts of drug distribution committed onaircraft registered in the United States would have a similar substantial effect on interstate or foreign commerce. See Raich , 545
U.S. at 22. The legislative history of the amendment of the statute in the Anti-Drug Abuse Act of 1986 does not appear to expressly address the issue. But this is not a difficult proposition to accept

10 Knowles points out that the fact that an airplane has been re gistered does not prove that the plane was authorized to fly. Knowles Mot. at 10 n.3; Knowles R eply at 9. But just because the aircraft is not in commerce does not mean that Congress cannot r egulate it. See Raich , 545 U.S. at 22 (holding that Congress can regulate activities that appea r on their face to be not in commerce – like the wholly intrastate cultivation of marijuana – when those activities “substantially affect” interstate commerce). Moreover, the reg ulations do provide that a plane cannot fly unless it has been registered. See 14 C.F.R. § 21.173 (“Any registered owner of a U.S.- registered aircraft . . . may apply for an airworthiness certificate for that aircraft.”).22 given the location of many sources for controlled substances an d the need for efficient means to transport the drugs elsewhere. Also, one of the stated policy reasons behind the requirement that aircraft be registered in the first place is to “provid[e] assis tance to law enforcement agencies in the enforcement of laws relate d to the regulation of controlled substances, to the e xtent consistent with aviation safety.” 49 U.S.C. § 40101(d)(7). And when Congre ss amended DAPCA in 1986, it described the Anti-Drug Abuse Act, which contained the aircr aft provision now embodied in section 959(b), as follows: An Act to strengthen Federal efforts to encourage foreign coope ration in eradicating illicit drug crops and in halting international dru g traffic, [and] to improve enforcement of Federa l drug laws and enhance interdi ction of illicit drug shipments

.... Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1 986). So, the title of the Public Law put before the legislature referred explicitly to international drug trafficking – which is undeniably a part of foreign commerce – and tied it to U.S. drug enforcement, which was already tied to interstate commerce in 21 U.S.C. § 801(3). Congress further made specific findings that “a greater international effort is required to address [the growin g narcotics threat to the international community].” Id. § 2020(2). Therefore, based on Raich , the broad statements in the aircraft registration statute, and the Anti-Drug Abuse Act, the Court co ncludes that Congress had a rational basis to conclude that drug traff icking aboard an aircraft regi stered in the United States would have a substantial effect on inters tate and international commerce. 11

11 The question could also be framed, in the words of the Ninth C ircuit, as applying a “global, commonsense approach” to the issue of whether regulating the us e of a U.S. registered aircraft is a regulation on overseas commerce, Clark , 435 F.3d at 1103, or, under the Fourth Circuit’s formulation, whether use of the a ircraft is an “activity that c ould have a demonstrable effect” on commerce. Bollinger , 798 F.3d at 215–16. Under any of the prevailing tests, Congre ss would have had the power to e nact 21 U.S.C. § 959(b) (2012).23 Congress was also concerned about the international nature of d rug trafficking. The fact that Congress enacted the Anti-Drug Abuse Act to targe t foreign drug trafficking in particular is also reflecte d in the presence of another provi sion in the statute, section 2021: (a) CONGRESSIONAL SUPPORT. – The Congress hereby declares its support for United Nations General Assembly Resolution 40/122 a dopted on December 13, 1985, in which the General Assembly decided to convene in 1987, an International Confer ence on Drug Abuse and Illicit Trafficking in order to generate universal action to combat the drug proble m in all its forms at the national, regional, and international levels, and to adopt a comprehensive outline of future activities. (b) UNITED STATES PARTICIPATION. – With respect to United States participation in the International Conference on Drug Abuse and Illicit Trafficking, the Congres s calls on the President – (1) to appoint the head of the United States delegation well in advance of the conference; and (2) to ensure that necessary resources are available for United States preparation and participation. Anti-Drug Abuse Act of 1986, § 2021, Pub L. No. 99-570, 100 Stat. 3207 (1986). This provision indicates that Congress clearly enacted the 1986 amendments withan eye towards the upcoming international effort to addre ss drug distribution in a concerte d way. The treaty that eventually resulted was the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 12 That agreement begins with the following preface: The parties to this Convention, Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for, and traf fic in narcotic drugs and ps ychotropic substances, which pose a serious threat to the health and welfare of human
12 Though Congress did not explicitly reference the Commission o n Narcotic Drugs, the group that was ultimately responsib le for drafting the treaty, U.N. General Assembly Resolution 40/122, cited in section 2021 of the Anti-Drug Abuse Act, “not[ ed] the work of the Commission of Narcotic Drugs towards the preparation of a draft conventionagainst illicit traffic in narcotic drugs and psychotropic substances.” G.A. Res. 40/122 (Dec. 13, 1985).24 beings and adversely affect the economic, cultural, and politic al foundations of society, . . . Recognizing the links between illicit traffic and other related organized criminal activities wh ich undermine the le gitimate economies an d threaten the stability, security and sovereignty of States, Recognizing also that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest p riority . . . Hereby agree as follows . . . . United Nations Convention Agains t Illicit Traffic in Narcotic D rugs & Psychotropic Substances, Dec. 19, 1988, 1582 U.N.T.S. 95 (“U.N. Nar cotics Convention”). With those principles in mind, in Article 4, entitled “Jurisdic tion,” the parties to the Convention agreed that each party to the treaty: a) Shall take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when: i) The offence is committed in its territory; ii) The offence is committed on board a vessel flying its flag o r an aircraft which is registered under its laws at the time the offence is committed. Id. , art. 4. So, the treaty requires that each party “shall . . . esta blish as criminal offences” the “manufacture . . . distribution . . . [or] possession” of narcotics, id. , art. 3, ¶ 1, and “[s]hall . . . establish jurisdiction” over those offenses when the y are committed on “an aircraft which is registered” in that country. Id. , art. 4. The U.N. Narcotics Convention thus makes clear that the internati onal community was deeply concerned about the econo mic effects of international dr ug trafficking. And Congress was already aware, when it passed the aircraft provision, that the international community would be meeting to update its treaty obligations to address this pressin g issue. So even though the treaty was not opened for signature until two years after Congress pas sed the Anti-Drug Abuse Act,25 Congress officially expressed its support for the international effort in the very statute at issue here. 13 Thus, given the clear relationship between section 959(b) and bo th foreign and interstate commerce that brings the statute under the auspices of an enume rated power, the only question that remains is whether the statutory provision was necessary an d proper to implement that
commerce power. 14

13 Defendants voice strong objec tion to the scope of section 959 (b), which they characterize as an expansive proscription reaching conduct with no connectionto the United States. But while it is clear that Congress recognized that the broad spectrum of international drug trafficking activity could have a significant impact on both foreign and do mestic commerce, the statutory provision in question here is actually quite targeted, and it r eaches only that slice of narcotics distribution activity conducted on airplanes owned by U.S. citi zens or registered in the United States. 14 The Court need not reach the government’s alternative argumen t that the statute is necessary and proper to impleme nt the 1961 United Nations Singl e Convention on Narcotic Drugs. Opp. (Knowles) at 10–11. The gov ernment points out that the Co nvention required the parties to criminalize “any other action which in the opinion of such Part y may be contrary to the provisions of this Convention.” Id. at 10, citing United Nations Singl e Convention on Narcotic Drug s, 1961, art. 36(1), Mar. 30, 1961, 520 U.N.T.S. 151. It is true that C ongress may, under its necessary and proper authority, legislate beyond its enumerated powers to imp lement the Executive’s power to “make treaties.” See, e.g. , Missouri v. Holland , 252 U.S. 416 (1920). In this case, though, there is no evidence that Congress enacted the aircraft provision to implement the Single Convention. Though the government correctly points out that the “Congressio nal findings” set forth in DAPCA noted that the United States was party to the Single Convention , see 21 U.S.C. § 801(7), that reference was contained in the legislation in 1970, and it came well before the Anti-Drug Abuse Act added the aircraft provision in 1986. See Anti-Drug Abuse Act of 1986, § 3161, Pub. L. No. 99-570, 100 Stat. 3207. It is therefore far from clear that Con gress had the 1961 Single Convention in mind when it added the aircraft provision in 1986. The prov ision does closely track the requirements of Artic le 4 of the 1988 U.N. Narcotics Convention , but when Congress passes implementing legislation for a treaty, it tends to do so explic itly, and here, the statute preceded the effective date of the treaty. See, e.g. , Bond v. United States , 134 S. Ct. 2077, 2083–85 (2013) (discussing the law that impleme nts the “Convention on the Proh ibition of the Development, Production, Stockpiling, and Use of Chemical Weapons,” entitled “Chemical Weapons Convention Implementation Act.”) . The Court does not hold that Congress must be explicit when it passes legislation to implement a treaty, but it need not re ach the question of whether the treaty power provides further authority in this case.26 B. The Necessary and Proper Clause Congress is empowered to “make all Laws Necessary and Proper fo r carrying into Execution” its enumerated powers. U.S. Const. art. I, § 8, cl. 10. The Supreme Court has explained that the scope of that power is “broad”: We have long read this provision to give Congress great latitude in exercising its powers: “Let the end be legitimate, let it be w ithin the scope of the constitution, and all means which are appropriate, whichare plainly adapted to that end, which are not prohibited, but consist withthe letter and spirit of the constituti on, are constitutional.” NFIB , 132 S. Ct. at 2579, quoting McCulloch , 17 U.S. (4 Wheat.) at 421. The Court has, pursuant to the necessary and proper clause, upheld laws that are “conven ient, or useful” or “conducive” to the authority’s “beneficial exercise.” United States v. Comstock , 560 U.S. 126, 133–34 (2010), quoting McCulloch , 17 U.S. (4 Wheat.) at 408. The Court has “made clear” that i t only needs to “look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” Id. at 134, citing Sabri v. United States , 541 U.S. 600, 605 (2004). Congress was concerned with the flow of narcotics in foreign co mmerce, see 21 U.S.C. § 801(3), and it enacted the aircraft registration requirements, in part, to be of assistance in the interdiction of illegal drug trafficking. See 49 U.S.C. § 40101(d)(7) (finding that “providing assistance to law enforcement age ncies in the enforcement of la ws related to regulation of controlled substances” is “in the public interest”). Those conc erns found their way into a single statute: 21 U.S.C. § 959(b) (2012). The Court therefore conclude s that Congress had the power27 to pass this law, which was “rationally related to the implement ation of” its commerce power. See
Comstock , 560 U.S. at 133–34. 15 III. The exercise of jurisdiction comports with due process. Defendant Thompson, joined by defendant Knowles, has also moved to dismiss on the grounds that the exercise of extr aterritorial jurisdiction in this case – whether or not it was authorized by the statute – does not comport with the Constitutio n. Thompson Mot. at 2–8; see also Knowles Mot. at 10–12. Thompson claims that facing trial in the United States would be fundamentally unfair and a violation of his right to due proces s because he is a Jamaican citizen; he lives in Colombia; all of the steps he allegedly took in fur therance of the conspiracy took place in Colombia; the drugs were notbound for the United States; an d there is no evidence that he or his co-conspirators performed any acts in furtherance of this c onspiracy in the United States. Thompson Mot. at 5. 16 Knowles is a Bahamian citizen who was living in Colombia at the time of this offense. Knowles Mot. at 11. The indictment charges that “i n the Bahamas, Colombia, Haiti,

15 Knowles also argues that the s tatute is not supported by the power to “define and punis h . . . Offences against the Law of Nations.” Knowles Mot. at 7, c iting U.S. Const., art. I, § 8, cl. 10. He asserts that “[d]rug trafficking was not a violation of customary international law at the time of the Founding, and drug trafficking is not a viol ation of customary international law today.” Id. at 7–8, citing United States v. Bellaizac-Hurtado , 700 F.3d 1245, 1253–54 (11th Cir. 2012). Though the U.N. Narcotics C onvention makes clear that dru g trafficking is of international concern, it is far from clear that drug trafficking would const itute a violation of the “law of nations.” Perhaps for that reas on, the government did not resp ond to defendant’s argument about the Offences clause. But the Court need not reach the issue of whether the U.N. Narcotics Convention modified customary int ernational law, or whether either the treaty or customary international law meets the definition of “the law of nations,” in light of its holding that the statutory provision was authoriz ed under the commerce clause. 16 As the D.C. Circuit has observe d, there may be some inconsist ency between the defendants’ efforts to vindicate rights under the U.S. Constitution and their insistence that they should not be subject to U.S. law. See Ali , 718 F.3d at 943 (“it may be logically awkward for a defendant to rely on what could be characterized as an extrater ritorial application of the U.S. Constitution in an effort to block the extraterritorial application of U.S. law.”), quoting Curtis A. Bradley, Universal Jurisdiction & U.S. Law , 2001 U. Chi. Legal F. 323, 338 (2001).28 Honduras, Venezuela, the Domini can Republic, and elsewhere,” th e defendants conspired to distribute and possess with inten t to distribute cocaine on board an aircraft registered in the United States. Redacted Indictment at 1–2. The case centers around a thwarted attempt to move drugs from Venezuela to Honduras, utilizing an airplane that was supp osed to be flown by Bahamianbased pilots from the Bahamas to Venezuela, but was seized whenit made a stop en route and landed in Haiti. Neither the Supreme Court nor the D.C. Circuit has addressed wh ether the due process clause applies in this circumstance. In Ballestas , 795 F.3d 138, the D.C. Circuit observed that “[o]ur Circuit has yet to decide ‘whether the Constitution limi ts the extraterritorial exercise of federal criminal jurisdiction.’” Id. at 148, quoting Ali , 718 F.3d at 943–44. The Ballestas Court went on to explain that even if one assumes there are constitut ional constraints, “the ultimate question’ under the Due Process Clause . . . is whether application of the statute to the defendant [would] be arbitrary or fundamentally unfair.” Id. , citing Ali , 718 F.3d at 944 (alteration in original) (internal quotations omitted); s ee also Ali , 718 F.3d at 944 (noting, when declining to apply the principles related to p ersonal jurisdiction, that “[t] o the extent the nexus requirement serves as a proxy for due process, it addresses the broader conc ern of ensuring that ‘a United States court will assert jur isdiction only over a defendant who should reasonably anticipate being haled29 into court in this country’”), quoting United States v. Klimavicius-Viloria , 144 F.3d 1249, 1257 (9th Cir. 1998). 17 The government cites a number of cases involving prosecutions under section 959 or the similarly extraterritorial Maritime Drug Law Enforcement Act inwhich due process challenges were denied by the courts. Opp. (Thompson) at 6–9; Opp. (Knowl es) at 12–15. But those cases and many of the authorities reviewed by the Court are distingui shable because the defendants in the previous prosecutions had some personal connection with the United States, or they directed their conduct in some way towards the United States, and those facts were specifically relied upon, at least in part, to establish the fairness of the courts’ exer cise of jurisdiction over the foreign conduct. See Blackmer v. United States , 284 U.S. 421, 437 (1932) (the defendants were United States citizens who violated U.S. law through acts performed abr oad); Ballestas , 795 F.3d at 141– 42 (explaining that the drug traffickers used boats to transportcocaine that was “ultimately destined for the United States,” and that the defendant “provid ed maps and law enforcement reports purporting to reveal the l ocation of United States, Col ombian, and other nations’ air and maritime forces,” which the defendant used to evade detection b y U.S. law enforcement);
Lawrence , 727 F.3d at 388–89 (conspiracy involved U.S. citizens who used U.S. passports to travel from Texas to South America to traffic narcotics, and took actio ns while in Texas in furtherance of the conspiracy); Bodye , 2016 WL 1091058, at *1, *7 (the defendant was a legal resident of the

17 Thompson recognizes that this Court is bound to apply the sta ndard from Ballestas and Ali , but wishes to preserve his argument that the test should be one derived from the personal jurisdiction jurisprudence: whe ther the defendant purposely di rected his conduct towards the United States. Thompson Mot. at 3 n.2. So, Thompson moved to dismiss based on the principle set out in Al Kassar , that “in order to apply extraterritorially a federal statute to a defendant consistently with due process, the re must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair,” 660 F.3d at 118, quoting United States v. Yousef , 327 F.3d 56, 111 (2d Cir. 2003), and he does not focus directly on the standard artic ulated by this Circuit.30 United States, and was living in the United States at the time of the conspiracy); United States v. Mosquera-Murillo , No. 13-cr-134, 2015 WL 9907796, at *20 (D.D.C. Dec. 14, 2015) ( describing the defendants’ efforts to “ev ade interdiction by United States authorities”). Here, the government has made plain that it is not pointing to any facts that would connect these defendants or their conspiracy to the United States for p urposes of opposing the motion to dismiss, other than the use of the U.S.-registered aircraft. I n an Order dated April 15, 2016, the Court specifically asked the gov ernment to file a notice inform ing the Court: A. Whether or not it intends to rely upon any facts in oppositio n to the motions (other than the alleged us e of an aircraft owned by a U nited States citizen or registered in the United States), including but not limited to whether: 1) either defendant has any connection to, or directed his activities in any way towards, the United States; 2) either defendant demonstrated an actual awareness that he could face criminal liability in the United States or made any effort to avoid detection by United States law enforcement authorities in particular; 3) either defendant made specific efforts to obtain or utilize aircraft registered in the Un ited States as oppo sed to aircraft in general; or B. Whether the government inte nds to introduce evidence that anycoconspirator engaged in conduct or made statements that the government seeks to attribute to these defendants in order to m ake such a showing. Order (Apr. 15, 2016) [Dkt. # 129]. In its response, the gover nment confirmed that it did not “intend to rely on facts or evide nce . . . beyond the fact of the United States registry or ownership31 of aircraft sought or used by the defendants in furtherance of the charged drug-trafficking conspiracy.” Gov’t Notice at 1. 18 The Court is faced, then, with the pure question of whether an e xercise of extraterritorial jurisdiction founded solely upon the use of an aircraft register ed in the United States comports with due process. See id. at 5 (“Upon a showing that a U.S . aircraft was involved, due pr ocess is satisfied and no further s howing is required.” ). No section 959 case to date ha s gone that far, and the question is more difficult than the flat assertions in the g overnment’s oppositions would suggest. See, e.g. , Opp. (Thompson) at 7 (“[No one] who conspires to use a U.S. regi stered or owned plane to traffic drugs [can ] reasonably claim that he did not anticipate that such conduct would subject him to the laws of the United States.”); Opp. (Kn owles) at 14 (“[T]here is nothing

18 The government is not even relying upon evidence that the con spirators were deliberately seeking to utilize U.S. registered aircraft in particular to tr ansport their narcotics – only that the airplane they obtained and flew i n this instance was registered here. See Opp. (Knowles) at 2 (“As part of the conspiracy, Defendants Thompson and Knowles worked together to attempt to utilize various aircraft to traffic cocaine, including U.S. registered and foreign registered aircraft, primarily located in the United States, the Bahamas, the Domini can Republic, Panama, and Belize. One aircraft, among others, that the Defendants conspired to us e . . . was a U.S. registered aircraft with tail number N157PA that w as ultimately detained and seized in Haiti . . . .”). The notice does allege that the defendants used “numerous” U.S. aircraft, including “aircraft bearing registrati on numbers N157PA, N376SA, N381CR, N847D, N91CF, N437CG, N4047C, N660WM, N711WX, N63BV, and N97AJ.” Gov’t Notice at 2. But the Indictment charges only the use of the N157PA aircraft, and the Court has not yet ruled on whether the other aircraft may be referenced as e ither intrinsic evidence of the charged conspiracy, or under Federal Rule of Evidence 404(b). See Redacted Indictment; Gov’t’s Position on 404(b) and Mot. to Introduce 404(b) Evid. at Trial [Dkt. # 55].32 arbitrary or fundamentally unfai r about haling [defendant] into U.S. court for conspiring to use U.S. aircraft to traffic cocaine.”). 19 The Court concludes, though, that the binding precedent in this Circuit compels the finding that the prosecution of Thompson and Knowles under secti on 959(b) is not arbitrary or fundamentally unfair, and that it could have been reasonably anticipated. In deciding whether the application of extraterritorial jurisdiction was lawful in Ali , the Court of Appeals found United
States v. Shi , 525 F.3d 709 (9th Cir. 2008), to be “most on point.” Ali , 718 F.3d at 944. The defendant in Shi was prosecuted under 18 U.S.C. § 2280, which implements the Conv ention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, and the Convention puts foreign offenders on notice that their conduct may be pros ecuted by any state party to the Convention. Shi , 525 F.3d at 717–24. The D.C. Circuit observed that the treaty in Shi , like the treaty at issue in Ali , provided “global notice that certain generally condemned acts are subject to prosecution by any party to the treaty,” and that “the Due Proc ess Clause demands no more.” Ali , 718 F.3d at 944. In the Court’s view, the U.N. N arcotics Convention serves the same function here. In Article 3, the nations that are p arties to the Convention agreed that each party “shall” adopt measures to criminalize the production, manufacture, sale, or d elivery of narcotic drugs under its domestic law, as well as the possession for the purpose of any of those activities. U.N. Narcotics Convention, art. 3, ¶¶ 1(a)(1), 3. The Convention goes on to man date, in the Article entitled

19 By observing that the government offers nothing beyond the fa ct of the registration, the Court does not mean to suggest that the registration is insigni ficant. The N number displayed on the airplane’s tail was available only to an aircraft owned by a U.S. citizen, a lawful permanent resident, or a foreign corporation organized and doing business in the United States. 49 U.S.C. § 44102(a). So, the participants in this alleged conspiracy wer e sending a clear and specific message to air traffic controllers and law enforcement authorit ies that a plane with an established American connection was landi ng on the foreign airstrip.33 “Jurisdiction,” that “each party shall take such measures as ma y be necessary to establish its jurisdiction over the offenses established in accordance with a rticle 3 paragraph 1” in two situations: first, when “the offense is committed in its territo ry”; and second, when “the offense is committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed.” Id. , art. 4(a). In other words, whether or not this Convention placed foreign drug dealers on notice that any other aspects of drug trafficking abroad could land them in a foreign court, it sp ecifically announced that all par ties to the Convention not only could, but must establish their jurisdiction over crimes committed on board air craft registered under their laws. The fact that this provisi on is included in the “Jurisdic tion” article, in addition to the provision referencing the partie s’ jurisdiction over their own territories, makes it clear that the parties to the treaty intended th at their jurisdiction would be exercised wherever their airplanes could be found. Thompson and Knowles are citizens of Jamaica and the Bahamas, r espectively, and both of those nations are parties to the U.N. Narcotics Convention. 20 Their alleged conduct in furtherance of the conspiracy took place in Colombia, which is a lso a party to the U.N. Narcotics Convention. The indictment also alleges activity related to Hait i, Honduras, Venezuela, and the Dominican Republic, and all of those nations are parties to the U.N. Narcotics Convention. So if, as the Court of Appeals stated in Ali , “a treaty may provide notice sufficient to satisfy due process ,” 718 F.3d at 945, under the circumst ances present in this case, these defendants were on notice that their use of a U.S. registered a ircraft to transport cocaine co uld subject them to prosecution in the United States. The Court notes that the district court in Bodye reached the same conclusion. See

20 A list of the parties to the U .N. Narcotics Convention is ava ilable on the United Nations’ web site. See U.N. Narcotics Convention, http s://treaties.un.org/Pages/ViewDe tails.aspx? src=TREATY&mtdsg_no=VI-19&chapter=6&lang=en.34 2016 WL 1091058 at *7 (“[E]ven setting Bodye’s U.S. residency a side, U.S. prosecution of the conduct alleged here was expressl y condoned by international la w . . . . [A]ll three of the c ountries with any reasonable connection to this case agreed long ago that it would be appropriate for the United States to prosecute the conduct alleged here. The Court does not suppose that aspiring drug-traffickers actually investigate such matters, but Bodye c annot complain that the risk of being haled into a U.S. court was unknowable.”). Thompson argues that the U.N. Narcotics Convention can be distin guished from the treaty involved in Shi , and that it does not suffice to meet constitutional concerns b ecause “[n]othing in the Convention (1) suggests that an individual may be prosecute d by another country for his entirely domestic conduct; or (2) adopts conspiracy principles regarding vicarious liability to punish an individual for the acts of coconspirators.” Thompson Mot. at 7. While the Convention may not contain an express warning that foreign offenders may b e prosecuted by any party for any drug trafficking offense, Article 4 does place international dr ug traffickers on notice that state parties will have extraterritorial reach when their airplanes are involved. See U.N. Narcotics Convention, art. 4. And the fact that it directs each party to establish its jurisdiction “over the offenses it has established in accordance with article 3, paragraph 1” when the offense is committed on board its registered aircraft, see id. , art. 4, ¶ (1)(a)(ii) (emphasis added), suggests that each party will be applying its own domestic law to those committing drug trafficking offenses on board the aircraft. Moreover, article 3, paragraph 1 specifically authori zes, although it does not require, parties to the Convention to pr ohibit “conspiracy to commit, att empts to commit, and aiding [and] abetting . . . the co mmission of any of the offences established in accordance with this article.”
Id. , art. 3, ¶ (1)(c)(4). So the Convention is not silent on this is sue, and Thompson’s arguments are not persuasive.35 Moreover, there are additional f acts that support the conclusio n that these co-conspirators could have reasonably underst ood that their alleged conduct was illegal, whether or not they specifically anticipated prosecution in the United States. See Ali , 718 F.3d at 944, citing Bouie v. City of Columbia , 378 U.S. 347, 351 (1964). The government has explained that i ts evidence will consist of a substantial amount of evidence collected by its international law-enforcement partners.
See Gov’t Resp. in Opp. to Def. Kno wles’s Mot. for Suppression of Audio Recording Evid. [Dkt. # 90] at 2–3 (explaining that the government seeks to introduce 180 recorded telephone conversations and text messages intercepted by Columbian and Bah amian law enforcement). The government has also indicated that the defendants spoke in code d language to avoid detection by law enforcement, in case their communications were being monito red. See Gov’t’s Position on 404(b) and Mot. to Introduce 404(b) Evid. at Trial [Dkt. # 55] at 9 (discussing that one member of the conspiracy used “coded and cryptic terms” such as “‘cloth’ and ‘sail’” to refer to transporting cocaine on a boat, and Knowles “u sed the coded term ‘slow car.’ ”). Finally, while defendants are correct that some courts have hel d that drug trafficking is not subject to universal jurisdic tion under customary internati onal law, see Ali , 718 F.3d at 945; Bellaizac-Hurtado , 700 F.3d at 1253–54, the D.C. Circuit has made clear that “it i s the ‘universal condemnation of the offender’s c onduct,’ not some theory of uni versal jurisdiction, that drove the Ninth Circuit’s reasoning” in the Shi case. Ali , 718 F.3d at 945, quoting Shi , 525 F.3d. at 723. The Court underscored that the availa bility of universal jurisdicti on as a matter of international law was “not a necessary premise to [the] conclusion that a treaty may provide notice sufficient to satisfy due process.” Id. Therefore, applying the law of this Circuit, the Court conclude s that the application of extraterritorial j urisdiction to these defendant s in this case comports with due
process.36 CONCLUSION Pursuant to Federal Rule of Criminal Procedure 12, and for the reasons stated above, it is hereby
ORDERED that defendant Thompson’s Motion to Dismiss the Indictment [Dkt . # 120], and defendant Knowles’s Motion to D ismiss the Indictment [Dkt. # 128] are DENIED

. SO ORDERED

.

AMY BERMAN JACKSON United States District Judge DATE: June 16, 2016