Metropolitan News-Enterprise


Tuesday, May 20, 2008


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High Court Reinstates Conviction in Millennium Plot

Justices Reject Ninth Circuit’s Interpretation of Statute on Carrying Explosives




A federal law making it a felony to carry an explosive while committing another felony applies without regard to the relationship between the explosive and the underlying crime, the U.S. Supreme Court ruled yesterday.

The justices overturned a Ninth U.S. Circuit Court of Appeals ruling that could have resulted in a sentence reduction for Ahmed Ressam, convicted of plotting to detonate explosives at Los Angeles International Airport while Americans celebrated the dawning of the 21st Century.

The Algerian national, dubbed the “Millennium Bomber,” is serving a 22-year sentence imposed by a federal judge in Seattle after he was convicted of international terrorism,  placing explosives in proximity to a ferry terminal, possessing false identification, using a fictitious name, falsely identifying himself on a customs declaration form, smuggling and transportation of explosives, illegal possession of a destructive device, and carrying an explosive during the commission of a felony.

Yesterday’s 8-1 decision, with Justice Stephen Breyer dissenting, resolves a conflict between the Ninth Circuit’s ruling that a defendant cannot be convicted of carrying an explosive during the commission of a felony absent a relationship between the act of possessing explosives and the underlying felony, and at least two contrary rulings in other circuits.

The underlying felony in Ressam’s case was lying about his identity on his customs declaration. Under 18 U.S.C. Sec. 844(h)(2), carrying explosives “during” the commission of another felony carries a mandatory 10-year sentence.

The government also argued that the sentence was unreasonably lenient for a terrorist plot that prompted the cancellation of New Year’s celebrations at Seattle’s Space Needle and could have killed hundreds of people had the explosives been detonated at LAX while it was filled with holiday travelers.

The Supreme Court did not address that issue.

Ressam was arrested after crossing into Washington state from Canada by ferry. A suspicious customs inspector initiated an intensive search of his vehicle, which revealed the explosives.

Investigators discovered that Ressam had been turned down for asylum in Canada but was allowed to stay in that country due to a moratorium on deportations to his homeland. He trained with al Qaeda in Afghanistan before returning to Canada, where he continued to work on the Millennium plot, in February 1999.

Facing a sentence of about 65 years in prison after his conviction, he began cooperating with authorities, although he stopped doing so in early 2003. His sentencing was delayed until 2005 as the government unsuccessfully sought further assistance from him.

Citing his lack of further cooperation, the government recommended a sentence of 35 years, while defense counsel argued that the cooperation he had given earlier warranted sentencing him to 10 years. District Judge John Coughenour sentenced him to 22 years, and both sides appealed. 

A divided panel of the Ninth Circuit reversed the conviction on the Sec. 844(h)(2) count, citing a U.S. Supreme Court decision that applied such a requirement to a similar statute involving possession of a firearm, and ordered resentencing.

The panel majority also said that it was unnecessary to rule on the government’s sentence appeal, saying the district judge should review the sentence on remand in light of changes in sentencing law since 2005.

Senior Judge Arthur Alarcon dissented, arguing that the conviction should be affirmed on all counts and that the judge’s sentencing order failed to justify leniency.

Justice John Paul Stevens, writing for the Supreme Court, said the Ninth Circuit’s interpretation was contrary to the plain language of the statute.

“There is no need to consult dictionary definitions of the word ‘during’ in order to arrive at the conclusion that respondent engaged in the precise conduct described in §844(h)(2)...,” Stevens wrote. “The term ‘during’ denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because respondent’s carrying of the explosives was contemporaneous with his violation of [the false statements statute] he carried them ‘during’ that violation.”

Stevens also cited the legislative history of Sec. 844(h)(2), noting that it lacked the “in relation to” element of the firearms statute cited by the Ninth Circuit.

At one time, he explained, both statutes proscribed possession of the targeted items “during” a felony. In 1984, however, Congress amended the firearms statute, increasing the penalties but adding the words “and in relation to” after “during.” Since there was no similar amendment to the explosives statute, Stevens reasoned, it is apparent that Congress did not intend that the two be treated analogously.

Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Anthony Kennedy, David Souter, and Samuel Alito joined Stevens in the opinion. Justice Clarence Thomas, joined by Justice Antonin Scalia, concurred in the result but did not join the discussion of legislative history.

Breyer argued in dissent that the statute should be read to apply only when the carrying of explosive facilitated the underlying felony, or when the underlying felony facilitated the carrying of explosives. Otherwise, he wrote, it would apply “to a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truckdriver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family, or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower.”

Stevens responded in a footnote that since it was undisputed that the items found in Ressam’s car were “explosives,”  it was unnecessary to determine whether “commonplace items” such as gasoline or fertilizer constitute explosives within the meaning of the statute.

The case is United States v. Ressam, 07–455.


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