Tuesday, May 20, 2008

Statutory Interpretation; Supreme Court Reverses Ninth Circuit Terrorist Case: U.S. v. Ressam, 128 S.Ct. 1858 (2008)

U.S. v. Ressam, 128 S.Ct. 1858 (2009) Remanded to Ninth Circuit; 538 F. 3d 1166 (9th Cir. 2009) Ahmed Ressam attempted to enter the United States from Canada in his vehicle but gave false information of his identity to an inspector. At a secondary location, customs agents discovered explosives in his trunk destined for a terrorist attack in California. After his arrest, the Attorney General charged Ressam with feloniously making a false statement to customs officials in violation of 18 U.S.C.A. 1001, and carrying explosives during the commission of a felony in violation of U.S.C.A. 844 (h) (2). Convicted of both crimes, the defendant appealed to the Ninth Circuit. The Ninth Circuit panel majority (2-1) of judges interpreted the statutory language during the commission of a felony to require a relationship between the underlying felony (lying to the customs officer) and the act of carrying explosives. Finding none, the court reversed the conviction on that charge (count). Not only did the Ninth Circuit ignore decisions of two other Circuit Courts of Appeal on the same issue, it relied on one of its own vintage cases as precedent although decided prior to Congressional amendment of U.S.C.A. 844. Because of the three judge panel split decision, the court offered the entire Ninth Circuit panel of judges (en banc) an opportunity to rehear the case. Despite the obvious need to correct the original panel decision, a majority of the court declined a rehearing over the objection of six judges. Here is an excerpt from the dissent, minus a chilling description of the evidence of potential death to untold number of California citizens had Ressam succeeded in his plans. I dissent from the denial of rehearing en banc because we have not only usurped the congressional function, but have also created a split of authority with every other United States Court of Appeals that has addressed this question. The Supreme Court granted certiorari. In a brief 8-1 opinion the Court rejected the Ninth Circuit reasoning, peremptorily dismissing the Ninth Circuit decision. There is no need to consult dictionary definitions of the word 'during in order to arrive at the conclusion that [Ressam] engaged in the precise conduct described in section 844(h) (2). The termduring denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because [Ressams] carrying of the explosives was contemporaneous with his violation of section 1001, he carried them during that violation. The statutory language was so obviously unambiguous that two of the Justices concurred in a single sentence, impliedly dismissing the Ninth Circuit decision without the necessity of even writing a decision.

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