In re: Sealed Case

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FOR TIlE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2016 Decided June 25, 2019
Reissued August 30, 2019

No. 14-3043

IN RE: SEALED CASE

Appeal from the United States District Court
for the District of Columbia
(No:1 : 10-cr-00334-1)

Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in part and concurring in the judgment
filed by Circuit Judge HENDERSON.

GRIFFITH, Circuit Judge: Appellant pleaded guilty to
violating 21 U.S.C. § 960a, which prohibits using the proceeds
of drug trafficking to support foreign terrorist groups. He now
appeals his conviction. This case requires us to address how the
Foreign Commerce and Due Process Clauses of the
Constitution limit the extraterritorial application of the statute,
and to consider the effect of Appellant’s guilty plea on his

NOTE: Portions of this opinion contain Sealed information,
which has been redacted.
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ability to appeal his conviction. We conclude that Congress had
the authority to criminalize Appellant’s conduct even though
his actions occurred outside of the United States, and that his
plea agreement precludes his other arguments on appeal.
Accordingly, we affirm Appellant’s conviction.

I

Because of the threat they posed to the security of the
United States and its citizens, between Year and Year the State
Department designated terrorist ‘zation
1 and Orc’”’ization 2
:h groups
I
I •

controlled terrItory In Country A involved in the drug trade.
Appellant was a key leader of an extensive criminal enterprise
that produced and transported drugs in those areas, flying large
amounts of drugs from Country A to Country B, Country C,
Country D, and Country E. For example, while in Country B,
Appellant supervised the delivery of large quantities of drugs,
reloading the planes used to drop off the drugs with millions of
U.S. dollars and other currency that were then flown to Country
A. He knew some of that money was being paid as a “tax” to
Organization 1 and Organization 2 in exchange for permission
to operate in their territory, and that those groups were actively
engaging in terrorism. At one point, he also personally
participated in the delivery of money and weapons to
Organization 1.

A federal grand jury indicted Appellant on a single count
of violating 21 U.S.C. § 960a. Broadly speaking, the statute
criminalizes supporting terrorist groups with the proceeds of
illegal drttg trafficking. The statute has three parts. First, it
identifies a set of drug-related activities that would be punished
under a separate statute if they were committed within the
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jurisdiction of the United States. The statute then specifies that
it prohibits engaging in those drug-related activities “knowing
or intending to provide, directly or indirectly, anything of
pecuniary value to any person or organization that has engaged
or engages in terrorist activity.” 21 U.S.C. § 960a(a).

Finally, the statute contains five jurisdictional provisions.
The government need prove only one, and three are relevant
here. Jurisdiction exists when either the terrorist offense or
drug activity involved in the charged conduct would
independently violate U.S. criminal law; when “the offense, the
prohibited drug activity, or the terrorist offense occurs in or
affects interstate or foreign commerce”; or when a defendant,
after violating the substantive provisions of § 960a, “is brought
into or found in the United States, even if the conduct required
for the offense occurs outside the United States.” Id.
§ 960a(b)(1), (2), (5).2
Here, the government initially alleged that Appellant had
conspired to manufacture, distribute, and possess with intent to
distribute a quantity of drugs. The government charged that
Appellant then paid Organization 1 and Organization 2 for
permission to operate in their territory using proceeds of that
conspiracy. The government asserted that three of the statute’s
jurisdictional elements were met because “the prohibited drug

2
Jurisdiction also exists when the support given is for “a
terrorist offense that causes or is designed to cause death or serious
bodily injury to a national of the United States while that national is
outside the United States, or substantial damage to the property of a
legal entity organized under the laws of the United States . while
. .

that property is outside of the United States,” or when the drug or
terrorist activity giving rise to the offense occurs outside of the
United States and the defendant is a U.S. national or organization. 21
U.S.C. § 960a(b)(3), (4).
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activity and terrorist offense violate[d] the criminal laws of the
United States, specifically” 18 U.S.C. § 23393, which
criminalizes the material support of foreign terrorist
organizations; “the prohibited drug activity and the terrorist
offenses occur[edj in or affect[ed] interstate or foreign
commerce”; and Appellant was brought into the United States
after the conduct that violated the statute occurred abroad.

Appellant was arrested on Date and extradited from
Country A. He was arraigned in federal district court in the
District of Columbia on Date. In Month, Appellant moved to
dismiss the indictment, arguing that (1) the indictment did not
allege all the elements of the offense charged; (2) the
indictment failed to put him on adequate notice of the conduct
that was allegedly criminal; (3) no nexus between the charged
conduct and the United States existed, meaning that his
prosecution violated the Due Process Clause; and (4) the
jurisdictional reach of 960a exceeded Congress’s enumerated
powers, both facially and as-applied in this case.
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never moved to dismiss the information to which he
pleaded guilty.

As part of the plea agreement, Appellant also stipulated to
a statement of facts detailing his participation in the scheme
and agreed that those facts “satisfljedJ each of the essential
elements of the charge to which [he] [was] entering [Jhis plea.”
He expressly waived the right to appeal his sentence in all but
a few limited circumstances not applicable here.
the district court sentenced Appellant to time in
prison.

Appellant did not expressly waive his right to appeal his
conviction, and we must first determine whether his guilty plea
bars his appeal. After we held oral argument, the Supreme
Court granted certiorari in Class v. United States, 137 5. Ct.
1065 (2017), a case that raised the same issue. We held
Appellant’s appeal in abeyance pending a decision in Class,
which has been announced. We requested supplemental
briefing regarding the effect of that decision on Appellant’s
appeal.

II

Appellant challenges his conviction on three grounds.
first, he argues that Article I of the Constitution does not
authorize Congress to pass a criminal statute with the
extraterritorial reach of § 960a. Second, he claims that due
process requires a greater connection between the punished
conduct and the United States than existed here. finally,
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Appellant contends that his behavior does not satisfy some of
the statute’s elements.3 We reject each of these challenges.

A

Generally, “[u]nconditional guilty pleas” like Appellant’s
that “are knowing and intelligent” and do not reserve some
ground for appeal in writing serve to “waive the pleading
defendant[’s] claims of error on appeal, even constitutional
claims.” United States v. Delgado—Garcia, 374 F.3d 1337,
1341 (D.C. Cir. 2004); see also FED. R. CRIM. P. 1 1(a)(2).
There are limited exceptions to this rule, and Appellant
maintains this case falls within one: the right to argue on appeal
that a prosecution was defective from its inception, because the
defendant could not lawfully have been “haled into court at
all.” Blackledge v. Perry, 417 U.S. 21, 30-31 (1974).

The Supreme Court first articulated this exception in
Blackledge v. Periy and Menna v. New York, 423 U.S. 61
(1975). The Blackledge-Menna doctrine recognizes that there
are some cases in which the Constitution prohibits a
prosecution even though the defendant has admitted in a plea
agreement that he did exactly what the government alleged.

In his opening brief, Appellant also argued that “[t]he
superseding information in this case appears to equate the statutory
language ‘has engaged or engages in terrorist activity . or
. .

terrorism’ with presence on the State Department list of [Foreign
Terrorist Organizations].” Appellant Br. 21. Appellant suggested
that constitutes a bill of attainder and “a violation of separation of
powers.” Id. at 2 1-22. After the government clarified in its brief that
it does not, in fact, consider listing by the State Department to be
conclusive of that particular statutory element, Gov’t Br. 32,
Appellant withdrew this aspect of his appeal, Appellant Reply Br.
28.
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Menna, 423 U.S. at 62 n.2. In such a case, a guilty plea will not
bar a constitutional challenge to the prosecution. Id For
example, a guilty plea does not preclude “a claim that the
charged offense violates the double jeopardy clause,”
Delgado—Garcia, 374 F.3d at 1341, or bar the argument that
the prosecution was vindictive, see Blackledge, 417 U.S. at 30.

The boundaries of the Blackledge-Menna doctrine were
recently clarified in Class v. United States, 13$ S. Ct. 79$
(2018). In that case, the Supreme Court held that a guilty plea
will never, “by itself,” bar a defendant from challenging the
constitutionality of his statute of conviction, Id. at $03, because
such an argument “call[s] into question the {g]overnment’s
power to ‘constitutionally prosecute’ him,” Id. at $05 (quoting
United States v. Broce, 48$ U.S. 563, 575 (1989)). A guilty
plea does, however, bar a defendant from making arguments
on appeal that contradict admissions made in his plea
agreement. Id. at 805 (holding that a defendant who pleads
guilty “relinquishes any claim that would contradict the
‘admissions necessarily made upon entry of a voluntary plea of
guilty” (quoting Broce, 488 U.S. at 573-74)).

As the government concedes, Appellant’s constitutional
arguments are largely of the type that, as Class made clear,
survive a guilty plea under the Blackledge-Menna doctrine.
Gov’t Suppi. Br. 3-4. Appellant’s challenges to the potential
reach of Congress’s power under Article I and the restraints on
that power under the Due Process Clause “call into question the
[g]overnment’s power to constitutionally prosecute him.”
Class, 138 5. Ct. at 805 (internal quotation marks omitted).
And, critically, his challenge to Congress’s authority to enact
§ 960a and his due process claim do not contradict any of the
admissions made in his plea agreement. See id. at 804. Instead,
“[t]hey are consistent with Appellant’s knowing, voluntary,
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and intelligent admission that he did what the [charging
document] alleged,” and “can be resolved without any need to
venture beyond that record.” Id. (internal quotation marks
omitted). That means that Appellant may still raise at least
these arguments despite pleading guilty. Id. at 807.

Appellant argues that our review is de novo. The
government counters that his failure to obtain a ruling on his
motion to dismiss means that our review is for plain error.
Because the challenges not barred by Appellant’s guilty plea
fail even under de novo review, we need not resolve which
standard applies.

B

The parties agree that congressional authority to enact
§ 960a must be found among the powers enumerated in Article
I, section 8. Appellant Suppl. Br. 9; Gov’t Suppl. Br. 5. They
disagree whether such authority exists, although Appellant’s
reasons for doubting Congress’s power are not always clear. At
times he characterizes his Article I claim as a facial challenge
to the statute, arguing that § 960a “applies only
extraterritorially” and “[i]n every case where the statute is
applied extraterritorially, it is invalid as beyond the power of
Congress to legislate.” Appellant Suppi. Br. 7. Elsewhere he
frames his argument as turning on “the facts of the instant
case,” id. at 11, arguing that Congress lacked the power to
criminalize the funding of terrorist organizations with the
proceeds of drug trafficking when both the trafficking and
funding “occur[] solely on foreign soil” and “do[] not affect
American citizens or property,” Id. at 5. This second version of
his argument suggests that the statute may constitutionally be
applied to some defendants—just not to Appellant, given what
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he characterizes as the attenuated connection between his
conduct and the United States.

In light of this uncertainty, we assume for purposes of this
appeal that Appellant intended to bring both a facial and an as-
applied challenge to § 960a.4 The government responds to the
former by disputing that every application of the statute is
unconstitutional, and to the latter by arguing that, even
accepting as true Appellant’s characterization of his actions’
connection to the United States, Congress had the power to
criminalize his behavior.

1

‘
Our colleague understands Appellant to bring only a facial
challenge to § 960a. We agree that Appellant frequently describes
his argument in those terms. But, for the reasons given in Parts
11.3.1-2, Appellant disputes only certain applications of § 960a:
specifically, applications of the statute to conduct that occurs in
commerce between foreign countries that affects commerce with the
United States. Put another way, although the statute contains
numerous jurisdictional provisions, the substance of Appellant’s
briefing addresses part of one of them. This sort of “separate attack
on a defined subset of the statute’s applications” is better read as an
as-applied challenge. United States v. Stevens, 559 U.S. 460, 473 n.3
(2010). Contrary to our colleague’s suggestion, in reaching this
conclusion we have not forgotten “the cardinal principle ofjudicial
restraint” and decide no more than is necessary to resolve the case.
Post, at 2-3 (Henderson, J., concurring in part and concurring in the
judgment). We have a simple disagreement about how best to
characterize Appellant’s arguments. That disagreement implicates
no grand constitutional values, only different approaches to reading
briefs and arguments. We simply see an as-applied challenge amidst
the sometimes confusing jumble of Appellant’s arguments when our
colleague does not.
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To succeed on a facial challenge, a defendant must
generally “establish[] that no set of circumstances exists under
which the [statute] would be valid,’ i.e., that the law is
unconstitutional in all of its applications.” Wash. State Grange
Wash. State Republican Party, 552 U.S. 442, 449 (2008)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
Although there has been some debate whether every facial
challenge must meet the Salerno standard, “all agree that a
facial challenge must fail where the statute has a plainly
legitimate sweep.” Id. (internal quotation marks omitted);
Hodge v. Talkin, 799 f.3d 1145, 1156 (D.C. Cir. 2015).

That means that Appellant’s facial challenge cannot
succeed if § 960a has a “plainly legitimate sweep.” We
conclude that it does. Indeed, Appellant does not contest (nor
could he) that Congress acted within its Article I power when
providing for the prosecution of persons meeting many of the
criteria set forth in § 960a(b). For example, courts have long
recognized that Congress may criminalize many actions that
target U.S. nationals or interests abroad, or provide for the
prosecution of much conduct by U.S. nationals or organizations
overseas. 21 U.S.C. § 960a(b)(3), (4); see, e.g., United States
v. Bowman, 260 U.S. 94, 98-99 (1922). Prior prosecutions
under § 960a involved defendants who had engaged in such
conduct. See, e.g., United States v. Mohammed, 693 F.3d 192,
195-96 (D.C. Cir. 2012) (defendant trafficked drugs to support
the Taliban, which was engaged in a conflict with the U.S.
military in Afghanistan); United States v. Viglakis, No. 12-cr-
585, 2013 WL 4477023, at *2 (S.D.N.Y. Aug. 14, 2013)
(defendant supplied weapons to FARC, which “has engaged in
violence against U.S. persons, commercial [interests,] and
property interests” located abroad); United States v. Saade, No.
11-cr-Ill, 2012 WL 2878087, at *2 (S.D.N.Y. July 11,2012)
(denying a motion to dismiss an indictment on due process
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grounds when the proceeds of the defendant’s drug trafficking
“would be used by the Taliban to buy weapons with which to
fight Americans”). Because Article I permits Congress to
authorize these applications of § 960a, Appellant’s facial claim
fails.

2

Appellant next argues that Article I does not authorize
Congress to criminalize the behavior in which he engaged.
Under the Blackledge-Menna doctrine, that argument can only
survive Appellant’s guilty plea if it is consistent with the
factual admissions Appellant made as part of his plea
agreement. Class, 138 5. Ct. at 804. Put another way, because
of what he already agreed to in his plea, Appellant may not
relitigate before us what he did or did not do. His arguments on
appeal must be based on the facts established through his plea.
The government and Appellant believe that to be the case here,
but we disagree in part. Aspects of Appellant’s as-applied
challenge ignore or revise facts to which he stipulated.

As we noted in discussing Appellant’s facial challenge,
elements of § 960a(b) limit the extraterritorial reach of the
statute. The government must find jurisdiction to prosecute
Appellant under at least one of those elements. Appellant
stipulated that the facts in this case fulfill three:
(1) Section 960a(b)(1), because the prohibited drug activity
and terrorist offense violated the criminal law of the United
States that prohibits providing material support to foreign
terrorist groups, 1$ U.S.C. § 23393; (2) Section 960a(b)(2),
because the drug activity and terrorist offenses connected to
Appellant occurred in or affected interstate or foreign
commerce; and (3) Section 960a(b)(5), because Appellant was
brought to the United States for prosecution.
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Because parties may not stipulate to legal conclusions in
plea agreements, see United States v. Flores, 912 f.3d 613, 619
(D.C. Cir. 2019), Appellant’s plea then sets forth the specific
facts that establish how his conduct fulfilled these elements.
Relevant here, the agreement describes how he provided
money and weapons to Organization 1 and Organization 2,
“which were designated Foreign Terrorist Organizations by the
United States Department of State during the period of the
conspiracy.” A Foreign Terrorist Organization is a “foreign
organization” that “engages in terrorist activity.. or terrorism
.

• . or retains the capability and intent to engage in terrorist
.

activity or terrorism” that “threatens the security of United
States nationals or the national security of the United States.”
8 U.S.C. § 1189. Indeed, Appellant stipulated that he knew that
Organization 1 and Organization 2 were actively engaging in
terrorism while he was facilitating payments to them,
sometimes in weapons. Appellant also stipulated that the
money and weapons he supplied to Organization 1 and
Organization 2 came from the large quantities of drugs he
moved around the region. Taken together, Appellant admitted
that he had trafficked millions of dollars’ worth of drugs and
weapons between multiple countries to fund groups engaging
in terrorism that threatened the security of U.S. nationals or the
national security of the United States.

Appellant now argues that Congress lacks the power under
Article Ito authorize the application of § 960a to this admitted
conduct. In light of the admissions in Appellant’s plea
agreement, we disagree, and conclude that Congress had
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authority under the Foreign Commerce Clause to authorize
Appellant’s prosecution.5

Appellant argues that his conduct was beyond the reach of
Congress’s power “[t]o regulate Commerce with foreign
Nations” because it involved only “matters between two or
more foreign countries not involving the United States,”
Appellant Suppl. Br. 9, and that his actions at most
“affect[ed]’ American commerce,” Appellant Reply Br. 18.
Doubt certainly exists as to Congress’s ability under the
Foreign Commerce Clause to criminalize conduct with no
effect on the United States. See, e.g., United States v. Baston,
81$ f.3d 651, 667 (11th Cir. 2016) (observing that the Supreme
Court has never “thoroughly explored the scope of the Foreign
Commerce Clause”); Baston v. United States, 137 5. Ct. $50,
$51 (2017) (Thomas, J., dissenting from denial of certiorari)
(observing that the Supreme Court has only evaluated laws
invoking the foreign Commerce Clause to “regulat[e] conduct
with a significant connection to the United States”). But see
Hartford fire Ins. Co. v. Catfornia, 509 U.S. 764, 813-14
(1993) (Scalia, J., dissenting) (“Congress has broad power
under [the Foreign Commerce Clause], and this Court has
repeatedly upheld its power to make laws applicable to persons
or activities beyond our territorial boundaries where United
States interests are affected.”); 3d. of Trs. of Univ. of Ill. v.
United States, 289 U.S. 48, 56 (1933) (describing as an
“essential attribute of the power” granted to Congress under the

Accordingly, we need not reach the government’s contention
that Congress’s power under Article I, section 8 “[tb define and
punish Piracies and Felonies committed on the high Seas, and
Offenses against the Law of Nations” and “[t]o make all Laws which
shall be necessary and proper” to execute treaties justified
application of 96Oato Appellant’s conduct.
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Foreign Commerce Clause “that it is exclusive and plenary”).
After all, the clause refers to “Commerce with foreign
Nations,” lending support to the notion that some connection
to the United States must be established for Congress to
legislate pursuant to this power. U.S. C0NsT. art. I, § 8, cI. 3
(emphasis added); Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 3
(1824) (“The power to regulate commerce extends to every
species of commercial intercourse between the United States
and foreign nations.” (emphasis added)); Anthony I.
Colangelo, The foreign Commerce Clause, 96 VA. L. REv. 949
(2010) (arguing that the Foreign Commerce Clause authorizes
only regulation of commerce with some nexus to the United
States and that it may never authorize greater regulation of
activities within foreign nations than would be authorized by
the Interstate Commerce Clause within states).

But Appellant’s argument goes further, asking us to hold
that Congress can only make criminal a foreign commercial
activity that takes place in the course of commerce with the
United States. Such a narrow construction would bar Congress
from outlawing drug trafficking that lends financial support to
terrorist organizations in foreign countries when that support
merely “affects” commerce with the United States. Although
our sister circuits disagree on the precise test that should be
used to determine when overseas actions may be proscribed
under the Foreign Commerce Clause, every Court of Appeals
to have considered the question in the context of commercial
activity such as Appellant’s has disavowed his cramped
reading. Some circuits have used the familiar Interstate
Commerce Clause framework from United States v. Lopez, 514
U.S. 549, 558-59 (1995), and concluded that Congress has
broad power to regulate overseas commercial conduct that has
a “substantial effect” on commerce with the United States. See,
e.g., United States v. Durham, 902 F.3d 1180, 1192-93 (10th
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Cir. 201$); Baston, $18 f.3d at 667-68; United States v.
Fendleton, 65$ F.3d 299, 308 (3d Cir. 2011). Some permit the
regulation of foreign conduct with less of an effect on the
United States. See, e.g., United States v. Bollinger, 79$ F.3d
201, 215-16 (4th Cir. 2015) (holding that Congress may
regulate conduct abroad that “demonstrably” rather than
“substantially” affects commerce with the United States);
United States v. Clark, 435 f.3d 1100, 1114 (9th Cir. 2006)
(requiring only a “constitutionally tenable nexus with foreign
commerce”), partially superseded as noted in United States v.
Fepe, 895 f.3d 679, 629 (9th Cir. 201$). But no court has
adopted the narrow view of congressional power Appellant
champions. We find our sister circuits’ consistent adoption of
at least some sort of effects test to be persuasive. Cf RJR
Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2105 (2016)
(holding that the term “foreign commerce” in the RICO statute
restricts the reach of the law to enterprises that “engage in, or
affect in some significant way, commerce directly involving
the United States—e.g., commerce between the United States
and a foreign country”).

We need not, however, define today the precise level of
“effect” necessary, because the stipulations in Appellant’s plea
agreement place his conduct abroad within Congress’s reach
under any version of the test. As already noted, his was not a
minor offense, the effects of which were only tangentially
related to the United States. Appellant was a leader of a large,
transnational drug trafficking conspiracy that supported
established and powerful terrorist groups. Those groups
murdered and kidnapped civilians, and the State Department
had publicly concluded that they threatened U.S. nationals and
interests. Appellant’s plea agreement does not specify where
the drugs he trafficked were ultimately headed, but given the
quantity of drugs, the involvement of Organization 1, and the
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nature of the Country A drug export markets in which
Appellant participated, his actions had a significant effect on
the drug trade between the United States and the countries in

I ant stipulated, moreover, that the terrorist
organizations he supported through his international drug
trafficking threatened U.S. nationals or the national security of
the United States. See Superseding Information at 2-3, No. 10-
cr-334 (D.D.C. Dec. 21, 2010), Dkt. No. 6 (stating that
Organization 2 and Organization 1 “were designated Foreign
Terrorist Organizations by the United States Department of
State during the period of the conspiracy”); 2 U.S.C.
§ 1 189(a)(l)(C) (requiring that “the terrorist activity or
terrorism of’ an organization named as a foreign Terrorist
Organization by the State Department “threaten[] the security
of United States nationals or the national security of the United
States”). That magnifies the effect of his conduct on commerce
between the countries where he was operating and the United
States. Cf $trassheim v. Daily, 221 U.S. 280, 225 (1911)
(“Acts done outside a jurisdiction, but intended to produce and
producing detrimental effects within it, justify a state in
punishing the cause of the harm as if he had been present at the
effect, if the state should succeed in getting him within its
power.”).

Appellant’s argument for why we should not apply any
version of an effects test when evaluating Congress’s power
under the foreign Commerce Clause is conclusory and without
merit. He fails to address the reasoning given by those circuits
that have considered the question or to explore the history of
the clause. Instead, he simply relies on the bare assertion that a
power with such a weak limit would be too broad. Appellant
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Reply Br. 18-19; Appellant Suppi. Br. 9. Given the Supreme
Court’s longstanding approach to the Interstate Commerce
Clause and the approach of our sister circuits to the Foreign
Commerce Clause, the need for the strict construction
Appellant urges is by no means self-evident. And once we
conclude that some version of an “effects test” applies,
Appellant’s remaining arguments are simply attempts to
recharacterize the facts to which he stipulated, minimizing his
role in the conspiracy and its magnitude to suggest that the
effect of his behavior on commerce with the United States was
too small for Congress to reach. Even after Class, we may not
consider such arguments when, as here, they contradict the
admissions made in the defendant’s plea agreement.

The facts of Class illustrate why this aspect of Appellant’s
as-applied challenge is foreclosed by his plea agreement.
Rodney Class pleaded guilty to possessing a firearm on the
grounds of the U.S. Capitol. Class, 138 S. Ct. at 802; see also
40 U.S.C. § 5104(e)(1)(A)(i) (making it a crime to “carry on or
have readily accessible to any individual on the Grounds or in
any of the Capitol Buildings a firearm”). The statute under
which he was convicted required proof of (1) carrying or
having readily accessible a firearm, dangerous weapon,
explosives, or an incendiary device; and (2) presence “on the
Grounds or in any of the Capitol Buildings.” 40 U.S.C.
§ 5104(e)(1)(A)(i). As part of his plea, Class stipulated that
both of these elements had been met because he had, in fact,
possessed a firearm on the Capitol Grounds when he drove his
vehicle into a parking lot near the Capitol. Class, 138 S. Ct. at
802, 804. On appeal, Class argued in relevant part “that he was
denied fair notice that weapons were banned in the parking lot”
in violation of the Due Process Clause, both because no signs
explained that the parking lot was an area in which firearms
were prohibited and because the statute itself was so vague as
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to provide insufficient notice of what constituted the “Capitol
Grounds.” Id at $02; Id at 80$, $13 n.4 (Auto, J., dissenting).
Critically, neither his plea agreement nor the statute said
anything about his being aware that the parking lot was part of
the Capitol Grounds.

Because of that omission, the Supreme Court concluded
that Class could press his due process claim on appeal because
it was “consistent with [his] knowing, voluntary, and intelligent
admission that he did what the indictment alleged,” and could
be resolved on appeal by reference to the existing record. Id. at
$04 (majority opinion) (internal quotation marks omitted).
Although Class had agreed that he was carrying weapons in a
prohibited place, he had not admitted to knowledge of the
nature of that place. Id. His argument that it violated the Due
Process Clause to prosecute someone for unknowingly
possessing firearms in a prohibited location thus did not
contradict any of the “admissions necessarily made” when he
pleaded guilty. Id. at $05 (quoting Broce, 48$ U.S. at 573-74).

This case more closely resembles a case that Class was
not. Had Class admitted in his plea agreement that he knew he
was in a place where possession of firearms was prohibited, he
would not have been able to argue on appeal that he lacked
sufficient notice. Appellant made that kind of contradictory
admission when he stipulated to the facts described above,
which demonstrate that his conduct affected commerce with
the United States. As we concluded above, Appellant may
challenge whether conduct that only “affects” foreign
commerce with the United States may be prohibited by
Congress—just as Class, in our hypothetical, would remain
free to claim that a statute that does not require notice violates
the Due Process Clause. Appellant may not, however, argue
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that his conduct failed to affect foreign commerce without
contradicting the terms of his plea agreement.6

C

Appellant next argues that his prosecution under § 960a,
even if authorized by Article I, violates the Due Process Clause
because the government has not established a sufficient nexus
between his conduct and the United States. We disagree.

Appellant contends that Congress, subject to exceptions
not applicable here, may only proscribe overseas conduct when
a nexus exists between the conduct and the United States. We
have repeatedly declined, however, to hold that the Due
Process Clause demands such a nexus—or to even resolve
“whether the Due Process Clause constrains the extraterritorial

6
Appellant’s claim reveals the difficulty faced by prosecutors
negotiating plea agreements to resolve charges brought under
statutes with jurisdictional elements such as § 960a. By pleading
guilty, Appellant prevented the government from putting on
evidence of his crime’s effect on foreign commerce with the United
States. His appeal then posits that the tack of such evidence renders
his prosecution unconstitutional. Prosecutors would be well-served
by ensuring that stipulations of fact entered into by pleading
defendants include the factual bases for elements that bring the
defendants’ conduct within the scope of Congress’s power to
legislate, rather than simply reciting that such elements have been
met. Cf Weston v. Wash. Metro. Area Transit Auth., 78 F.3d 682,
625 (D.C. Cir. 1996) (“While parties may enter into stipulations of
fact that are binding upon them unless they can show manifest
injustice, parties may not stipulate to the legal conclusions to be
reached by the court.” (internal quotation marks and citations
omitted)). The stipulations of fact here, however, contained such
facts.
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application of federal criminal laws” at all. United States v.
Ballestas, 795 F.3d 13$, 148 (D.C. Cir. 2015); see also United
States v. Au, 718 f.3d 929, 943-44 & n.7 (D.C. Cir. 2013)
(declining to reach the question and observing that the court
had “not found.. any case in which extraterritorial application
.

of a federal criminal statute was actually deemed a due process
violation . .suggest[ing] [the defendant’s] burden is a heavy
.

one”). Instead, “[t]he ultimate question under the Due Process
Clause is not nexus, but is whether application of the statute to
the defendant would be arbitrary or fundamentally unfair.”
Ballestas, 795 F.3d at 148 (internal alterations and quotation
marks omitted). “[T]he animating principle governing the due
process limits of extraterritorial jurisdiction,” to the extent such
limits exist, “is the idea that ‘no man shall be held criminally
responsible for conduct which he could not reasonably
understand to be proscribed.” Ali, 712 F.3d at 944 (quoting
Bouie v. City of Columbia, 37$ U.S. 347, 351 (1964)).

Appellant was a leader of an international drug trafficking
organization that funded and provided weapons to terrorist
groups that openly murdered and kidnapped civilians. These
groups, moreover, were publicly designated by the State
Department as directly threatening U.S. nationals or the
national security of the United States. And various
international agreements specifically prohibit Appellant’s
conduct. See International Convention for the Suppression of
the Financing of Terrorism, openedfor signature Dec. 9, 1999,
2178 U.N.T.S. 197 (entered into force Apr. 10, 2002); United
Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, opened for signature Dec. 20,
198$, 1582 U.N.T.S. 95 (entered into force Nov. 11, 1990).
Appellant can find no refuge in the Due Process Clause. He
admitted, after all, that he engaged in conduct, proscribed by
international agreement, that supported groups that threaten
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U.S. nationals or the national security of the United States. See
All, 71$ F.3d at 944-45 (describing, on the basis of similar
international agreements, hostage taking as “an offense whose
proscription ‘is a result of universal condemnation of those
activities and general interest in cooperating to suppress them”
(quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
§ 404 cmt. a (AM. LAW INST. 1987))). To apply § 960a to
Appellant “was neither arbitrary nor fundamentally unfair.”
Ballestas, 795 f.3d at 148.

III

Appellant also argues that his conduct did not satisfy the
jurisdictional elements of 21 U.S.C. § 960a(b), a defect in the
district court’s subject mafterjurisdiction that cannot be waived
by his subsequent guilty plea. But Appellant misunderstands
the work these elements of the statute perform.

When used in statutory provisions like § 960a(b),
jurisdiction can refer either to a “so-called ‘jurisdictional
element’ addressing the reach of [Congress’s] legislative
authority,” or “subject[ Jmatterj urisdiction—the jurisdiction of
the ‘district courts.” United States v. Miranda, 780 F.3d 1185,
1195 (D.C. Cir. 2015). The former, “consistent with the
description ‘jurisdictional element,’ treat[s] the relevant
condition as an element of the offense to be found by a jury,”
and proof of such an element “is no different from proof of any
other element of a federal crime.” Id. (quoting Hugi v. United
States, 164 F.3d 378, 381 (7th Cir. 1999)); see also Id. at 1191
(“[T]o ask ‘what conduct [a statute] reaches is to ask what
conduct [the statute] prohibits, which is a merits question,’ not
a question of subject[ ]matter jurisdiction.” (quoting Morrison
v. Nat’l Austi. BankLtd., 561 U.S. 247, 254 (2010))); United
States v. Gonzalez, 311 F.3d 440, 443 (1st Cir. 2002) (noting
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that Congress sometimes “use[s] the word ‘jurisdiction’
loosely to describe its own assertion of authority to regulate,”
such as when “it fixes an ‘affects interstate commerce’ . as a
. .

condition of the crime,” and that these “conditions have
nothing whatever to do with the subject matter Uurisdiction] of
the federal district court”). In contrast, subject matter
jurisdiction “refers to a tribunal’s power to hear a case” and
presents a legal question. Miranda, 780 F.3d at 1191 (quoting
Morrison, 561 U.S. at 254).

As discussed in Part 11.3, § 960a(a) refers to much conduct
occurring outside of the United States, and § 960a(b) puts
limits on that extraterritorial sweep. “The extraterritorial reach
of a statute ordinarily presents a merits question, not a
jurisdictional question.” Miranda, 780 F.3d at 1191. We
therefore begin with the presumption that the provision does
not speak to the subject matterjurisdiction of the federal courts.
We will not, moreover, interpret “a threshold limitation on a
statute’s scope” as referring to a court’s subject matter
jurisdiction unless Congress “clearly states” as much. Arbaugh
v. Y&H Corp., 546 U.S. 500, 515 (2006). In arguing that
Congress has done so here, Appellant relies on Miranda, in
which this Court considered the Maritime Drug Law
Enforcement Act (MDLEA). The MDLEA prohibits drug
activity on two categories of ships: “(1) a vessel of the United
States or a vessel subject to the jurisdiction of the United
States; or (2) any other vessel if the individual is a citizen of
the United States or a resident alien of the United States.” 46
U.S.C. § 70503(a), (e). We concluded in Miranda that “subject
to the jurisdiction of the United States” represented a limit on
our subject matter jurisdiction, rather than an element of the
offense. 780 F.3d at 1191. Appellant argues that Miranda
controls the present case, and because § 960a(b) defines our
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subject matter jurisdiction, his challenge on this point cannot
be waived by his plea.

Miranda, however, is distinguishable based on the text of
the statute at issue. The MDLEA provision defining
“[j]urisdiction of the United States with respect to a vessel
subject to this chapter” explicitly states that such jurisdiction
“is not an element of an offense. Jurisdictional issues arising
under this chapter are preliminary questions of law to be
determined solely by the trial judge.” 46 U.S.C. § 70504(a)
(emphasis added). Thus, the plain text prevented us from
finding that “vessels subject to the jurisdiction of the United
States” represented ajurisdictional element because the inquiry
was a “preliminary” or threshold issue—a key characteristic of
subject matter jurisdiction. Miranda, 780 f.3d at 1193.
furthermore, the text stated that the issue was “not an element
of the offense,” “fortifying its jurisdictional character.” Id. And
finally, the text provided for the issue to be determined solely
by the trial judge as a question of law, just as “subject[ ]matter
jurisdiction presents a question of law for resolution by the
court.” Id. Taken together, the MDLEA satisfied Arbaugh’s
“readily administrable bright line” rule that Congress “clearly
state[] that a threshold limitation on a statute’s scope [would]
count as jurisdictional.” 546 U.S. at 5 15-16.

Section 960a(b), in contrast, lacks any of these features,
stating only that “{t]here is jurisdiction over an offense under
this section if’ one of several conditions is met. And each of
those conditions resembles the jurisdictional elements
commonly found to restrict the scope of congressional, rather
than judicial, power. Accordingly, “to ask what conduct
[ 960a] reaches is to ask what conduct [the statute] prohibits,
which is a merits question, not a question of subject matter
jurisdiction.” Miranda, 780 F.3d at 1191 (internal quotation
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marks omitted); see also United States v. Harrington, 108 F.3d
1460, 1465 n.2 (D.C. Cir. 1997) (describing jurisdictional
elements that restrict the reach of statutes to Congress’s
enumerated powers by requiring factual findings, such as an
effect on interstate commerce). Appellant’s guilty plea thus
waives his claim that his conduct does not meet the
requirements of § 960a(b).

Iv

For these reasons, we affirm Appellant’s conviction.

So ordered.
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KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and concurring in the judgment:* I concur in all but
Section II.B.2 of the majority opinion. I cannot join Section
II.B.2 because I am convinced Appellant has not mounted an
as-applied Article I challenge.

Appellant categorizes his Article I challenge as facial. See
Appellant Op. Br. 3, 9, 15, 16; Appellant Rep. Br. 2, 17;
Appellant Supp. Br. 2, 5, 7. So does the government. See
Gov’t Resp. Br. iii, 21, 23; Gov’t Supp. Br. i, 5. And the
substance of Appellant’s challenge tracks the formal
characterization. Indeed, the challenge in his opening brief is
facial. See Appellant Op. Br. 18 (“Since there is no power
enumerated in the Constitution which authorizes Congress to
enact 21 U.S.C. sec. 960a, it is unconstitutional on its face.”);
id. at 17 (“The Foreign commerce clause permits Congress to
regulate commerce with foreign nations, not between foreign
nations. 21 U.S.C. sec. 960a does not purport to regulate
commerce between the United States and a foreign country.”
(internal citation omitted)); id. (“[T]he general foreign
authority of the legislative branch does not authorize the
enactment of 21 U.S.C. sec. 960a.”); id. at 18 (“The Offenses
Clause empowers Congress ‘to define and punish. Offenses
. .

Against the Law of Nations.’ . To the extent that the term
. .

‘Law of Nations’ has been expanded beyond piracy, that
expansion [does not extend to] financing terrorist
organizations,” the conduct the statute prohibits.). And, of
course, Appellant was required to raise all of his arguments in
his opening brief. See Al-Tarnimi v. Adelson, 916 f.3d 1, 6
(D.C. Cir. 2019) (“A party forfeits an argument by failing to
raise it in his opening brief”). Even were we willing to
consider an as-applied challenge raised for the first time in his

*
NOTE: Portions of this opinion contain Sealed information,
which has been redacted.
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supplemental brief—which, I submit, we should not be—there
is no as-applied challenge raised there. In his supplemental
brief, Appellant continues to argue that there is no
constitutional application of 21 U.S.C. § 960a. See Appellant
Supp. Br. at 7 (“In every case where the statute is applied
extraterritorially, it is invalid as beyond the power of Congress
to legislate. [And] the statute applies only extraterritorially.”).
The majority opinion references two pages in his supplemental
brief that might be read, at first blush, as unintentionally raising
an as-applied challenge. See Maj. Op. $ (citing Appellant
Supp. Br. 5, 11). Appellant’s language in both instances,
however, is consistent with a facial challenge. See Appellant
Supp. Br. 5 (Appellant’s argument that “21 U.S.C. sec. 960a is
facially unconstitutional because there is no power granted to
Congress under Article I, Section 8 of the Constitution which
authorizes the extraterritorial reach of conduct occurring solely
on foreign soil and which does not affect American citizens or
property” is based on his (erroneous) belief that the statute
prohibits only conduct occurring solely on foreign soil, which
does not affect American citizens or property (emphasis
added)); Id. at 11 (Appellant’s reference to “the facts of the
instant case” is a response to the government’s attempt to
defeat his facial challenge by demonstrating that the statute is
constitutional as applied to him). Plainly, there are
constitutional applications of the statute. That is why we reject
Appellant’s facial constitutional challenge. See Maj. Op.
Section II.B. 1. But it is not a reason to treat his facial challenge
as as-applied. See Gov’t Supp. Br. 5 (arguing that Appellant
“did not” raise an as-applied challenge and that existence of
constitutional applications of statute defeats Appellant’s facial
challenge).

Resolving only the facial Article I challenge would allow
us to avoid weighing in on the important constitutional
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question discussed in Section II.B.2, which should be left for a
day when it is properly presented. I fear that, in their haste to
explain how the foreign commerce clause works in the criminal
context, my colleagues have forgotten “the cardinal principle
of judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more.” Cohen v. Bd. of Trs. of Univ. of
D.C., 819 F.3d 476, 485 (D.C. Cir. 2016) (Griffith, I.)
(alteration omitted) (quoting FDK Labs, Inc. v. DEA, 362 F.3d
786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and
concurring in the judgment)). I have not forgotten that
principle and therefore do not join Section II.B.2 of the
majority opinion.