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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10658
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D.C. Docket No. 7:09-cr-00008-WLS-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWAIN D. WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 15, 2013)
Before TJOFLAT and COX, Circuit Judges, and MOTZ,* District Judge.
PER CURIAM:
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* Honorable J. Frederick Motz, Senior United States District Judge for the District of
Maryland, sitting by designation.
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Dwain D. Williams was convicted in the Middle District of Georgia of three
offenses: traveling in foreign commerce and engaging in illicit sexual conduct, in
violation of 18 U.S.C. § 2423(c), (e) (count one); aggravated sexual abuse of a
child committed while accompanying the Armed Forces outside the United States,
in violation of 18 U.S.C. §§ 2241(c) and 3261(a)(1) (count two); and abusive
sexual contact with a child committed while accompanying the Armed Forces
outside the United States, in violation of 18 U.S.C. §§ 2241(a) and 3261(a)(1)
(count three). The conduct alleged in the indictment occurred in and around
Okinawa, Japan. Subject matter jurisdiction for counts two and three was based
upon the Military Extraterritorial Jurisdiction Act of 2000 (“the MEJA”), 18
U.S.C. §§ 3261-3267. 1
I.
The evidence, the sufficiency of which is not contested on appeal,
established that Williams was married to a member of the United States Air Force.
While his wife was stationed in Okinawa, Williams engaged in sexual conduct
with his step-daughter, A.F., having vaginal intercourse with her. On one occasion
he also performed oral sex on her, and he occasionally touched her breasts when
1
18 U.S.C. § 2423(c) defines the crime on which count one is based and also provides the court
with subject matter jurisdiction to adjudicate that charge. Williams does not expressly dispute
the constitutionality of that statute. Williams’ Sixth Amendment arguments are equally
applicable to all three counts, however, and our analysis of Williams’ challenges to the MEJA
also applies to 18 U.S.C. § 2423(c).
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penetrating her. Williams and his family lived in three different residences while
they were in Japan, two of them located on the air base and one located off the
base, in the city of Koja. Williams’ wife was eventually transferred to an Air
Force base located in Georgia. While Williams was in Afghanistan working as a
civilian, A.F. told her mother and other family members about the sexual abuse to
which she had been subjected. When Williams returned to Georgia he was
arrested and prosecuted.
II.
Williams contends that the MEJA is unconstitutional because it subjects to
criminal prosecution in the United States conduct that was committed outside the
territorial or special maritime or admiralty jurisdiction of the United States.
In Reid v. Covert, 354 U.S. 1 (1957), the Supreme Court held that civilian
dependents of members of the armed forces could not be convicted of capital
offenses by a court-martial conducted under the provisions of the Uniform Code of
Justice. The Court ruled that in such a prosecution the defendant’s constitutional
right to be charged by an indictment returned by a grand jury, guaranteed by the
Fifth Amendment, and her constitutional right to a jury trial, guaranteed by Article
III and the Sixth Amendment, were violated. Id. at 32. In Kinsella v. United States
ex rel. Singleton, 361 U.S. 234 (1960), the Court extended the holding in Reid to
non-capital offenses. However, in Kinsella the Court contemplated the extension
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of federal criminal jurisdiction over civilian defendants as an alternative to a court-
martial proceeding. 361 U.S. at 246 (“[T]he immediate return to the United States
permanently of such civilian defendants, or their subsequent prosecution in the
United States for the more serious offenses when authorized by the Congress,
might well be the answer to the disciplinary problem.”).
The MEJA does not violate a defendant’s right to be charged by an
indictment or his right to be tried by a jury. Under the MEJA a defendant is
prosecuted in the United States in a criminal court and is afforded the
constitutional rights afforded by Article III and the Fifth and Sixth Amendments.
Williams was indicted by a grand jury and convicted by a petit jury. Williams
argues, however, that the MEJA nevertheless is unconstitutional under the venue
provision of the Sixth Amendment and the compulsory process provision of the
Sixth Amendment. Neither contention is meritorious.
The Sixth Amendment provides that crimes which have been committed
within a state and district shall be tried there. U.S. Const. amend. VI. However,
Article III contemplates that offenses against the laws of the United States may be
committed somewhere other than in a state and that in such cases “the Trial shall
be at such Place or Places as the Congress may by Law have directed.” U.S.
Const. art. III, § 2. Congress has exercised the authority granted to it by Article III
by providing in 18 U.S.C. § 3238 that “[t]he trial of all offenses begun or
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committed upon the high seas, or elsewhere outside of the jurisdiction of any
particular State or district, shall be in the district in which the offender . . . is
arrested or is first brought.” It is undisputed that Williams was arrested in the
Middle District of Georgia, and his prosecution in that district therefore was
consistent with the dictates of both § 3238 and the Sixth Amendment’s venue
provision.
The Sixth Amendment also provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process for obtaining
witnesses in his favor.” U.S. Const. amend. VI. Williams contends that the district
court’s lack of subpoena power over foreign nationals residing outside the United
States renders the MEJA unconstitutional because it deprives defendants such as
Williams of their right to have the court compel the testimony of favorable
witnesses. To prove a compulsory process violation, however, a defendant must
make a “plausible showing” that the witness’s testimony “would have been both
material and favorable to his defense.” United States v. Valenzuela-Bernal, 458
U.S. 858, 867 (1982). As the district court noted, Williams made “no attempt . . .
to name any witness who would be material and favorable to his defense, let alone
any showing by [Williams] regarding said witness’s materiality and favorability.”
Williams therefore has failed to establish any violation of the Sixth Amendment
right to compulsory process.
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III.
The final issue on appeal is whether the district court imposed an improper
general sentence. “A general sentence is an undivided sentence for more than one
count that does not exceed the maximum possible aggregate sentence for all the
counts but does exceed the maximum allowable sentence on one of the counts.”
United States v. Woodward, 938 F.2d 1255, 1256 (11th Cir. 1991). General
sentences are per se illegal in this circuit and require a remand. United States v.
Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005). The maximum sentence
permissible under 18 U.S.C. § 2423(c), upon which count one is based, is thirty
years. The district court’s undivided sentence of life imprisonment followed by a
lifetime period of supervised release therefore exceeded the maximum allowable
sentence on the first count and constituted an impermissible general sentence, and
the United States agrees that the case should be remanded for correction of the
sentence. Accordingly, we vacate the sentence and remand the case for
clarification of the sentence, including the term of supervised release, applicable to
each count of which Williams was convicted. See United States v. Martinez, 606
F.3d 1303, 1304 (11th Cir. 2010) (stating that 28 U.S.C. § 2106 “unambiguously
grants the circuit courts broad discretion to fashion an appropriate mandate on
remand after the vacatur of a sentence”).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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