Court Tosses Convictions for Killing ICE Agent Abroad

Legal Sidebari

Court Tosses Convictions for Killing ICE
Agent Abroad
February 10, 2020
In United States v. Garcia Sota, two defendants were each convicted on four counts under three different
statutes—18 U.S.C. §§ 924(c), 1114, and 1116—for attacking a pair of U.S. Immigration and Customs
Enforcement (ICE) agents in Mexico, killing one and wounding the other. A panel of the United States
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated the defendants’ convictions
under Section 1114, which outlaws killing federal officers while performing their duties, on the ground
that the statute does not apply outside of the United States. The D.C. Circuit’s decision creates a conflict
with decisions of two other federal appellate courts that the full D.C. Circuit, the Supreme Court, or
Congress may be asked to resolve.
Background
Jose Garcia Sota and Juan Amezuca were members of a drug cartel hit squad tasked with stealing cars for
the cartel. The squad ambushed an armored Chevrolet Suburban with diplomatic plates on a Mexican
highway. The attack killed ICE Special Agent Jaime Zapata and wounded ICE Special Agent Victor Avila.
Mexico extradited seven cartel members to the United States in connection with the attack. Five pleaded
guilty to various federal charges.
Garcia Sota and Amezuca elected to go to trial. A jury convicted them of four offenses proscribed under
three federal statutes. Section 924(c) outlaws using a firearm in furtherance of the commission of a crime
of violence or drug trafficking. Section 1114 outlaws murdering and attempting to murder federal officers
or employees during the performance of their duties. Section 1116 outlaws murdering or attempting to
murder internationally protected officials. Only Agent Avila, who was wounded, enjoyed protected
diplomatic status for purposes of Section 1116. Agent Zapata, who was murdered, did not.
First degree murder under Section 1114 is punishable by death or imprisonment for life. Attempted
murder under Section 1114 or 1116 is punishable by imprisonment for not more than 20 years. Using a
semiautomatic assault weapon in furtherance of drug trafficking where death results, as was the case here,
is punishable by death or by imprisonment for any term of years or for life. The district court sentenced
each defendant to two terms of life imprisonment.
On appeal, the defendants did not challenge their convictions under Section 1116 for the attempted
murder of Agent Avila. They argued that their murder and attempted murder convictions under Section
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1114 and their firearms convictions under Section 924(c) should be overturned because those sections do
not apply to violations committed outside of the U.S.
Section 1114
As a matter of statutory construction, courts presume that Congress intends federal criminal laws to apply
only within the United States, unless Congress clearly indicates otherwise. The D.C. Circuit noted that
“[i]n recent years the Supreme Court has applied th[is] canon with increased clarity and insistence.” With
this as its starting point, the D.C. Circuit observed that, “[o]n its face, § 1114 does not speak to
extraterritorial application one way or the other, thus leaving the presumption against extraterritoriality
unrebutted.” The court also found that “context reinforces the case against extraterritorial application of
§ 1114.” Specifically, when Congress enacted the Antiterrorism and Effective Death Penalty Act
(AEDPA) and revived the death penalty as a sentencing option for violations of Sections 1114 and 1116, it
expressly made Section 1116 applicable overseas but included “no such signal” in Section 1114.
The D.C. Circuit rejected the government’s argument that the venerable Supreme Court decision in
United States v. Bowman supports the extraterritorial application of Section 1114. The D.C. Circuit
explained that, in Bowman, the Supreme Court had “permitted the extraterritorial application of a statute”
even though Congress had not expressly done so because “‘to limit [its] locus to the strictly territorial
jurisdiction would be greatly to curtail the scope and usefulness of the statute.’” Thus, the D.C. Circuit
understood Bowman to mean that a court may find that “Congress intended extraterritorial application”
when there was a “great likelihood that the outlawed conduct would occur abroad.” The D.C. Circuit
concluded that this rationale did not apply to Section 1114 because it was not apparent that the federal
officers covered by the statute would work “only (or even largely) overseas.”
The D.C. Circuit’s decision in Garcia Sota conflicts with the decisions of two other federal courts of
appeal. Both the Second Circuit, in United States v. Siddiqui, and the Eleventh Circuit, in United States v.
Benitez, held that Section 1114 applies abroad. Contrary to the D.C. Circuit, both of these courts relied on
Bowman’s “type-of-crime” rationale to conclude that Section 1114 applies extraterritorially.
Section 924(c)
Although the D.C. Circuit held that Section 1114 does not apply overseas, it concluded that Section
924(c) does apply extraterritorially under some circumstances. Section 924(c) creates an umbrella
crime—the use of a firearm—that imposes liability only when the defendant commits a predicate offense,
in this case, a “crime of violence” or a “drug trafficking crime.” In reaching its decision, the D.C. Circuit
relied on the Supreme Court’s analysis of the extraterritorial application of another umbrella crime
statute—the Racketeer Influenced and Corrupt Organizations Act (RICO)—in RJR Nabisco v. European
Community. Among other things, the RICO statute outlaws conducting the affairs of a commercial
enterprise through the patterned commission of a series of predicate offenses. The D.C. Circuit interpreted
RJR Nabisco to permit the extraterritorial application of an umbrella crime statute only if two conditions
are met: (1) the statutes establishing the predicate offenses apply extraterritorially and (2) there is
“affirmative evidence of congressional intent that the umbrella crime itself (RICO there, § 924(c) here)
should apply to conduct overseas.”
In the case before the D.C. Circuit, the court noted that Section 1116 qualifies as a crime of violence and
contains an explicit extraterritoriality provision. Section 924(c)’s definition of drug trafficking
specifically refers to the Controlled Substances Act, the Controlled Substances Import, and Export Act
and the Maritime Drug Enforcement Act. The D.C. Circuit “believe[d] these predicates provide the
necessary textual indication that Congress meant § 924(c) to apply overseas ‘to the extent that the
predicates alleged in a particular case themselves apply extraterritorially.’”
Here too, the D.C. Circuit is somewhat at odds with decisions in the Second and Eleventh Circuits. The
Eleventh Circuit in United States v. Belfast and the Second Circuit in Siddiqui each held that Section

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924(c) applies overseas based solely on the presence of an extraterritorial predicate offense, without also
considering the array of other extraterritorial predicate offenses found under Section 924(c)’s umbrella.
Those decisions, however, came before RJR Nabisco and therefore did not have the benefit of its holding.
D.C. Circuit Resentencing
The D.C. Circuit disposed of the defendants’ other challenges and returned the case to the district court
for resentencing. The district court had sentenced each of the defendants to two terms of life
imprisonment. The D.C. Circuit, however, vacated the defendants’ convictions, and thus their sentences,
under Section 1114. That left only the defendants’ convictions under Section 1116, which carries a
maximum prison term of 20 years, and Section 924(c), which carries a maximum penalty of
imprisonment for life, which are insufficient to support to the two life sentences levied by the district
court on each defendant.
Congressional Options
Sections 924(c), 1114, and 1116 are each creatures of Congress. Thus, Congress is free to respond
legislatively to the D.C. Circuit’s decision, within the limits of Congress’s constitutional powers.
Congress might decide to amend the three sections so that they each expressly apply only within the
United States. Alternatively, it might choose to amend Section 1114 and/or Section 924(c) to explicitly
describe the circumstances under which those sections apply overseas. Congress also might opt to defer
action to allow the courts—either all the judges of the D.C. Circuit sitting en banc or the Supreme
Court—to address the issue.












Author Information

Charles Doyle

Senior Specialist in American Public Law

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