United States v. Ahmed Ressam, Also Known as Benni Antoine Noris, United States of America v. Ahmed Ressam, Also Known as Benni Antoine Noris

474 F.3d 597, 2007 U.S. App. LEXIS 867, 2007 WL 92626

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2007
• Docket: 05-30422, 05-30441
• Status: Published

Opinions

RYMER, Circuit Judge:

Ahmed Ressam trained with members of al Qaeda in Afghanistan and hatched a plot to detonate explosives at Los Angeles International Airport (LAX) in the days before the new Millennium. He was charged with, and convicted of, nine counts of criminal activity connected to this plot. Res-sam challenges his conviction on one of these counts, Count 9, for carrying an explosive during the commission of a felony — making false statements on a customs declaration — in violation of 18 U.S.C. § 844(h)(2). The issue is whether § 844(h)(2) must be read to include a relational element such that the crime is carrying an explosive during and in relation to commission of a felony. We previously construed the statute upon which § 844(h)(2) was modeled, 18 U.S.C. § 924(c), to require this relational element, United States v. Stewart, 779 F.2d 538, 539—40 (9th Cir.1985), even though it, too, lacked the phrase “and in relation to.” We are constrained to follow Steivart’s analysis here and conclude that § 844(h)(2) requires a relationship between the underlying crime and the act of carrying an explosive. As the jury was neither instructed that such a relationship was a required element of the offense, nor did the government offer evidence that Ressam’s explosives were used to facilitate his false customs declaration, his conviction on Count 9 must be reversed.

Ressam was exposed to a sentence of some 65 years, but after trial entered into a cooperation agreement with the United States according to which he would not seek, and the government would not recommend, a sentence of less than 27 years. Although he provided testimony and participated in numerous debriefings, Ressam ultimately stopped cooperating. As a result, the government recommended a sentence of 35 years. Ressam argued for a sentence of 120 months, and the district court imposed a sentence of 22 years. The government appeals this sentence as unreasonable in light of Ressam’s failure to continue to assist the government and the district court’s lack of explanation for what the government believes is an extreme departure. Given reversal of the conviction on Count 9 and its corresponding mandatory minimum sentence of 10 years, we vacate the entire sentence so that the district court can resentence in light of this decision and developments in the law of sentencing in the meantime.

I

Ressam is an Algerian citizen. He left Algeria in 1992 for France, where he was arrested on an immigration-related violation. Ressam then obtained a genuine French passport under the name of Anjer Tahar Medjadi and fled for Montreal in February of 1994. Using his true name, Ressam sought asylum in Canada, claiming that he had been falsely accused by the Algerian government of aiding Islamist insurgents and had served 15 months in prison. His petition was denied, but Res-sam was allowed to stay in Canada because of a moratorium on deportations to Algeria.

Ressam met an al Qaeda operative in Montreal named Abderraouf Hannachi sometime in 1998. Hannachi recruited individuals to train in al Qaeda camps in Afghanistan and to participate in jihadist activities. Using a forged Catholic baptismal certificate, Ressam obtained a Canadian passport in the name of Benni Antoine Noris in order to travel to Afghanistan. In March of 1998, Ressam — traveling as Benni Noris- — left Montreal for Karachi, Pakistan.

Once in Pakistan, Ressam met Abu Zu-baydah, who arranged Ressam’s travel to the Khalden training camp in Afghanistan. Ressam stayed with an Algerian terror group at Khalden for six months. During that time, he received firearms training and learned how to fire a rocket-propelled grenade launcher. Al Qaeda operatives at the camp taught Ressam to make explosive charges and showed him how to detonate particular types of plastic explosives. Ressam also learned how to destroy infrastructure targets, such' as power plants, military installations, railroads, and airports. He later went to a second camp near Jalalabad where he received further training in explosives. It was during this time that Ressam and others hatched the plot to target a U.S. airport to coincide with the Millennium.

Ressam returned to Canada via LAX in February of 1999. He carried bomb-making notes, two chemicals used to manufacture explosives, and $12,000 in cash. Ressam resettled in Montreal where he continued to plan the LAX attack. On November 17, 1999, Ressam and Abdel-majid Dahoumane, another member of the Montreal al Qaeda cell, traveled to Vancouver, British Columbia. Ressam and Dahoumane rented a Chrysler 300M and checked into a motel. On December 14, 1999, Ressam and Dahoumane loaded the trunk of the rental car with explosives, electronic timing devices, detonators, fertilizer, and aluminum sulfate. They drove to the ferry terminal at Tswassen, British Columbia. Dahoumane returned by bus to Vancouver while Ressam, using his Benni Noris passport, boarded the MV Coho, a ferry bound for Port Angeles, Washington. U.S. Customs inspectors¹ searched the trunk of Ressam’s car as part of a pre-screening process prior to departure. They did not discover the explosives which were hidden in the trunk’s spare tire well.

The MV Coho docked at Port Angeles about 6:00 p.m. Customs Inspector Diana Dean was finishing her day shift when Ressam drove his vehicle off the ferry. He steered the ear into the middle lane where Dean stopped him for inspection. Dean asked Ressam about his travel plans. His answers indicated that he was nervous and agitated. Dean asked Ressam to complete a customs declaration — which he signed as Benni Noris. Dean directed Ressam to a secondary inspection station where Customs inspectors searched the vehicle. The inspectors discovered what were later identified as the bomb’s component parts. At the time, they believed Ressam was attempting to smuggle narcotics into the country.

The substances were inventoried and tested. Agents found two primary explosives (hexamethylene triperoxide diamine (HMTB) and cyclotrimethylene trinitra-mine (RDX)) in a Tylenol pill bottle and zinc lozenge case, a secondary explosive (ethylene glycol dinitrate (EGDN)) poured into two olive oil jars, fertilizer which can provide fuel for an explosion, and aluminum sulfate. Agents also found Ressam’s fingerprints on four plastic boxes that contained timing devices. EGDN is a powerful explosive that packs twice the punch of the equivalent amount of TNT. The detonation of the bombs during the holiday travel rush at LAX would likely have killed and injured hundreds of people.

On February 14, 2001, the grand jury returned a nine-count Second Superceding Indictment against Ressam.² It charged Ressam with an act of terrorism transcending a national boundary, placing explosives in proximity to the ferry terminal, possessing false identification, using a fictitious name, falsely identifying himself on a customs declaration form, the smuggling of and transportation of explosives, the illegal possession of a destructive device, and carrying an explosive during the commission of a felony, namely, signing the customs form as Benni Noris. The district court ordered the trial moved from Seattle to Los Angeles due to pre-trial publicity.

Ressam filed a Federal Rule of Criminal Procedure 29 motion on Count 9, arguing that the act of carrying explosives had not played a role in the false statement made on the customs form. The district court denied the motion. Ressam also objected to the government’s proposed jury instruction on Count 9 because it lacked a relational requirement, which the district court overruled. On April 6, 2001, the jury convicted Ressam on all counts.

Ressam’s sentencing was delayed until-July 27, 2005. Ressam provided extensive cooperation until early 2003, when he basically stopped cooperating. In February of that year Ressam asked the court to proceed with sentencing, but at the court’s instigation, the government filed a motion under U.S.S.G. § 5K1.1 to allow a downward departure from the Guidelines range for substantial assistance. Still, Ressam did not resume cooperation. The court set a hearing for April 27, 2005, but decided on its own to give Ressam three more months in order to be able to give him as much credit as possible for cooperation. No additional cooperation was forthcoming before the reconvened hearing in July. The district court imposed a sentence of 22 years in custody and instructed the government “to allocate that according to the statutory mínimums among the counts in consecutive and concurrent as necessary to arrive at a total of 22 years.” It expressed no view on an appropriate Guidelines range, including the effect of the factors bearing on substantial assistance to authorities in § 5K1.1, and offered no explanation for imposition of the particular sentence in consideration of the factors in 18 U.S.C. § 3553(a).

The United States appeals the sentence, and Ressam cross-appeals his conviction on Count 9.

II

Ressam’s cross-appeal boils down to what 18 U.S.C. § 844(h)(2) means when it punishes one who “carries an explosive during the commission of any felony which may be prosecuted in a court of the United States,” with a mandatory term of imprisonment of 10 years. Does it criminalize carrying an explosive during the commission of another felony, or does it criminalize carrying an explosive during and in relation to that other felony? The answer matters in this case because the government offered no evidence that Ressam’s carrying the explosives in any way facilitated his falsifying the customs declaration form.

This is an issue of first impression for us, although the Third and Fifth Circuits have declined to interpret § 844(h)(2) as requiring that the explosives be carried in relation to the underlying felony. See United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir.1986); United States v. Ivy, 929 F.2d 147, 151 (5th Cir.1991) (following Rosenberg in an alternative holding). As these courts see it, “the plain everyday meaning of ‘during’ is ‘at the same time’ or ‘at a point in the course of.’ 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.” Rosenberg, 806 F.2d at 1178-79 (internal citation omitted); Ivy, 929 F.2d at 151 (citing Rosenberg, 806 F.2d at 1177). But see Rosenberg, 806 F.2d at 1180-1183 (Higginbotham, J., dissenting).

Unlike our colleagues in other circuits, we do not write on a clean slate. We interpreted a similar provision in the firearms statute, 18 U.S.C. § 924(c), in United States v. Stewart, 779 F.2d 538, 539-540 (9th Cir.1985), overruled in part on other grounds by United States v. Hernandez, 80 F.3d 1253, 1257 (9th Cir.1996). Section 924(c) as written when Stewart committed his offense provided that it was a crime to “carr[y] a firearm unlawfully during the commission of any felony....” 18 U.S.C. § 924(c)(2) (1982). Later, in 1984, it was amended to substitute for the word “during” the phrase “during and in relation to.” 18 U.S.C. § 924(c) (1985) (emphasis added). The word “unlawfully” was also deleted. Our review of the legislative history indicated that the new “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 explicit what had been implicit before— that a relation between the firearm and the underlying felony was required. Stewart, 779 F.2d at 539-40. The legislative history also indicated that when “unlawfully” was eliminated, the “in relation to” language was added to allay concern that a person could be prosecuted for committing an entirely unrelated crime while in possession of a firearm, but the “in relation to” language did not alter the scope of the statute.- Id. As then-judge Kennedy explained, “the evident purpose of theforigi-nal] statute was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony.” Id. at 540. “That purpose necessarily implies some relation or connection between the underlying criminal act and the use or possession of the firearm.” Id. Consequently, we interpreted the statute that applied to Stewart as if it contained the requirement that the firearm be possessed “during and in relation to” the underlying crime. Put differently, the relational requirement “has always been an implicit element of the crime even before Congress amended § 924 to include the specific ‘in relation to’ language.” United States v. Mendoza, 11 F.3d 126, 129 (9th Cir.1993) (describing Stewart’s holding).

While Rosenberg and -Ivy were free to (and did) reject Stewart’s analysis of § 924(c), we cannot.. Therefore,-we must decide whether a relational requirement has always been an implicit element of § 844(h)(2), as well. The two sections have much in common, and we are mindful of the canon in pari materia which provides that similar statutes are to be interpreted in a similar manner unless legislative history or purpose suggests material differences. See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 523-24, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 104-106, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993); U.S. West Comm., Inc. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir.2000).

Section 844 was enacted as part of Title XI of the Organized Crime Control Act of 1970. Pub.L. No. 91-452, 84 Stat. 922, 956. Its purpose was to align explosives with the firearms provisions in § 924(c), and it was modeled after § 924(c)-. United States v. Mueller, 463 F.3d 887, 891 (9th Cir.2006). The House Report explains that “Section 844(h) carries over to the explosives area the stringent provisions of the Gun Control Act of 1968 [codified at 18 U.S.C. § 924(c) ] relating to the use of firearms and the unlawful carrying of firearms to commit, or during the commission of a federal felony.” H.R. Rep. 91-1549, reprinted in 1970 U.S.C.C.A.N. 4007, 4046. Its original text was identical to the original firearms counterpart that we considered in Stewart. Thus, the original version of § 924(c) provided:

Whoever—

(1) uses a firearm to commit any felony which may be prosecuted in a court of the United States, or

(2) carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States ...

And the original version of § 844(h) provided:

Whoever—

(1) uses an explosive to commit any felony which may be prosecuted in a court of the United States, or

(2) carries an explosive unlawfully during the commission of any felony which may be prosecuted in a court of the United States ...

Congress amended § 844(h)(2) in 1988 by striking “unlawfully” in paragraph (2), as the 1984 revisions to § 924(c) had done. Pub.L. No. 100-690, § 6474(b).³ By contrast with the 1984 amendment to § 924(c), however, the word “during” was not replaced with “during and in relation to.” The legislative history does not specifically say why “unlawfully” was struck, or why “and in relation to” was not added. The Senate Report simply indicates that the new version strengthened the penalty provisions of § 844(h) for “using or carrying an explosive during the commission of a federal felony, so as to bring it in line with similar amendments adopted in the Comprehensive Crime Control Act of 1984....” S. Rep. at 17367.

Because in Stewart we did not think addition of the phrase “and in relation to” changed the scope of original § 924(c), we are hard-pressed now to say that its absence changes the scope of § 844(h)(2). In other words, accepting that § 924(c) always had a relational element, as we must, § 844(h)(2) necessarily always had a relational element, too. For this reason, we cannot accord the same weight as the government, and the Third Circuit, give to the fact that § 844(h)(2) was not altered as § 924(c) was,to add “and in relation to” language.⁴

Judge Alarcon contends that Stewart has been undercut by intervening authority. Yet neither Stewart’s holding, nor the “theory or reasoning” underlying the decision, has been called into question by this court sitting en banc or by the United States Supreme Court. The dissent’s citation to Lamie v. United States Trustee, 540 U.S. 526, 538, 124 S.Ct. 1023, 157 L.Ed.2d 1024.(2004) — a case interpreting a bankruptcy statute — as supervening authority is inapposite. Lamie did not articulate a new rule of statutory interpretation; it did not construe § 844(h)(2) or § 924(c); and there was no prior construction of a similar statute to contend with. Nothing about its holding, reasoning, or mode of analysis is irreconcilable with Stewart’s determination that a relational element was always implicit in the phrase “carries a firearm ... during.” Accordingly, we are obliged to follow Stewart’s construction of § 924(c), which served as the template for § 844(h). See Mueller, 463 F.3d at 891.

Given this interpretation, there is no real dispute that Ressam’s conviction on Count 9 cannot stand. The government introduced ample evidence that Ressam falsely signed the customs form as Benni Noris and that he carried explosives in the trunk of his car. Ressam so concedes. However, the evidence adduced at trial does not show that the explosives “facilitated or played a role in the crime” of lying on the customs declaration. See Ninth Cir. Model Crim. Jury Instr. No. 8.65; Stewart, 779 F.2d at 540 (contrasting Stewart’s case with circumstances showing a violation of § 924(c) as interpreted, such as “the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred”). It is not enough for the government to prove that Ressam lied because he was smuggling explosives in the trunk of his car. Rather, the government must demonstrate that the explosives aided the commission of the underlying felony in some way. There is no evidence that the explosives emboldened Ressam to lie or that he used them to “protect himself or intimidate others.” Id. Accordingly, we vacate Ressam’s conviction as to Count 9 only.

Ill

The government believes that Ressam’s sentence is unreasonable and seeks to have it vacated because the district court failed to balance the cooperation that Ressam provided against the magnitude of his crimes and his continued aid to terrorists by his failure to complete his promised assistance. We decline to address the merits of the government’s position for two reasons. First, Ressam’s conviction on Count 9 having been reversed, his sentence on that count necessarily falls as well. The district court articulated no basis upon which we could infer whether its sentence would be the same, or different, without a conviction on this count. We prefer to leave it to the district court in the first instance to arrive at an appropriate sentence on the remaining counts of conviction. Even more significantly, the law applicable to sentencing is in flux. We are rehearing two cases en banc, United States v. Carty, 453 F.3d 1214 (9th Cir.2006) reh’g en banc granted, 462 F.3d 1066 (9th Cir.2006), and United States v. Zavala, 443 F.3d 1165 (9th Cir.2006) reh’g en banc granted, 462 F.3d 1066 (9th Cir.2006), and the United States Supreme Court has granted writs of certiorari in Claiborne v. United States, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5618), and Rita v. United States, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5754), which will have a good deal to say about the sentencing process in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As the district court should have the initial opportunity to impose a sentence consistent with evolving law, we leave it to that court’s discretion to defer resentencing until the Supreme Court has decided Claiborne and Rita, or we have decided Carty and Zavala.

REVERSED IN PART; VACATED IN PART and REMANDED.

1 . The Homeland Security Act of 2002, Pub.L. No. 107-296, § 403, 116 Stat. 2135, transferred the U.S. Customs Service from the Treasury Department to the Department of Homeland Security. The agency is now known as U.S. Customs and Border Protection. We refer to the agency as the Customs Service because Ressam was apprehended prior to the reorganization.

2 . Dahoumane, who was a fugitive at the time, was also charged in four of the counts. Algerian security services arrested Dahoumane in March 2001.

3 . The current version of § 844(h) provides, in pertinent part:

(h) Whoever—

(1) uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States, or

(2) carries an explosive during the commission of any felony which may be prosecuted in a court of the United States, including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years. In the case of a second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for 20 years.

4 . The government's brief argued that, unlike § 924(c), § 844(h)(2) never contained a requirement that the explosive be carried "unlawfully during commission of any felony.” However, this assertion is incorrect, as the government has subsequently acknowledged.