United States v. Ressam--possession of explosives

This criminal law case has to do with how to interpret a federal statute regarding carrying explosives during the commission of a felony (specific law is 18 USC sec. 844(h)(2)). To get right to the heart of the matter, does the just-cited statute require a "relational" element between the underlying felony and the carrying of explosives in order to be, so to speak, triggered? In order to understand this question, we need to understand the case of Mr. Ressam.

Ressam, Explosives and the War on Terror

Ressam is an Algerian citizen. He left Algeria for France in 1992 where he was arrested for an immigration-related violation. Undeterred, he obtained a genuine French passport and fled to Montreal in 1994. Accusing the French government of dastardly things, he sought, and was denied, asylum in Canada. Yet, Canada didn't deport him because of a moratorium on deportations to Algeria in those years (and they say the US needs immigration reform??). Having found it easy to get a foreign passport illegally, he produced a forged Catholic birth certificate in the name of Benni Noris in order to get a Canadian passport to travel to Afghanistan. He was successful in obtaining the passport, and he arrived in Afghanistan in March 1998. For six months thereafter he was trained in an al-Qaeda camp, in which he learned all kinds of things about explosives. The Court of Appeals decision goes into all kinds of things he learned (474 F3d 597 (9th Cir 2007).

Unlike Jason Bourne, whom the CIA called a "$30 million weapon gone wrong," Ressam became a very useful weapon for al-Qaeda. He returned to Canada in Feb. 1999 with bomb-making notes, two chemicals used to manufacture explosives and $12,000 in cash. How did he get to Canada? Why, through LAX. Just before the new millennium (Nov. 17, 1999), he and an associate traveled to Vancouver, BC, rented a car, loaded the trunk of the rental car with explosives, electronic timing devices, detonators and all other things needed to cause a huge explosion. He managed to evade detection by US Customs inspectors in Vancouver (how did that happen?) and he boarded a ferry for Port Angeles, WA. Upon arrival there, another screening of his car turned up what later turned out to be the bomb's component parts. It was the end of the line for Mr. Ressam.

The Charges/Trial/Sentence

I skip the details on exactly what substances Mr. Ressam had in his possession. Suffice it to say that if he had detonated what he had (and he was bound for LAX), his bomb could have killed hundreds of people, according to the authorities. In any case, he was indicted by a grand jury on nine counts on Feb. 14, 2001. These counts were as follows: (1) terrorism transcending a national boundary; (2) placing explosives in proximity to the ferry terminal; (3) possessing false identification; (4) using a fictitious name--he was in his "Catholic" phase again...; (5) falsely identifying himself on a customs declaration form; (6) smuggling of and (7) transportation of explosives; (8) the illegal possession of a destructive device; and (9) carrying an explosive during the comission of a felony--namely, signing the customs form as Benni Noris. He was convicted on all nine counts.

Sentencing was delayed for four years (!) because the court wanted Ressam to be given time to cooperate with the government. There was extensive cooperation until early 2003, when Ressam stopped talking. Nevertheless, the government filed a motion asking for a downward departure in sentence. This didn't provide the necessary carrot for his continued cooperation. So, in summer 2005 the district court (state of WA) imposed a sentence of 22 years in custody for Mr. Ressam.

His Appeal and the Issue Before the Supreme Court

Even at trial Ressam argued that his conviction on count 9 was incorrect because it required a "relationship" element in it. What is meant by that is, according to Ressam, that in order for a person to be convicted of carrying the explosive during the commission of the felony, there had to be a connection or relationship between the explosive and the underlying felony. Since his underlying felony was falsifying his name on the customs declaration, he argued that there was no relationship between the two--and that count 9 should be dropped.

As mentioned, this argument fell on deaf ears at the District Court, but the Court of Appeals actually took the bait. It framed the issue as follows:

"Does it (18 USC sec. 844(h)(2)) 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."

The opinion of the Ninth Circuit panel spent a lot of time on statutory construction. It argued as follows--

1. 18 USC sec 844(h)(2) was modeled on another section of a federal criminal statute, enacted in 1970. The goal was to align explosives with the firearms provision of 18 USC sec. 924(c). The original sec. 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 ...

The original section 844, which is substantially the same as the section under consideration in this case, provide:

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 ..."

A 1984 amendment to sec. 924(c) added the words "during and in relation to" in subsection 2, but the legislative history said that it didn't change the meaning of the underlying provision of law. There was no corresponding change in sec. 844.

3. Thus, the 9th Circuit panel concluded that since sec. 844(h) was modeled on sec. 924(c) and since sec. 924(c) always seemed to have a "during and relation to" meaning attached to it, so the corresponding section in sec. 844 also must have had a "relation to" meaning read into it.

4. The panel then concluded, following its statutory analysis and a binding case in the 9th Circuit, that the explosives count (Count 9) had to be related to the underlying felony--falsifying one's name. Since it was not so related, the conviction on Count 9 couldn't stand.

5. Furthermore, since the sentence of 22 years was assessed by the district court not by tallying up a certain number of years for each count violation, the court remanded the case so that Ressam would be completely resentenced.

That, then, is how the case made it to the US Supreme Court. The US asked for a writ of certiorari, got it, and the Court will simply determine if sec. 844(h)(2) requires that the explosives be carried "in relation to" the underlying felony. I smell reversal. Big time. Probably by 7-2 or 8-1; maybe by a home run.

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