                                                                           [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                          FOR THE ELEVENTH CIRCUIT              U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                                                    AUGUST 11, 2000
                                                                   THOMAS K. KAHN
                                                                        CLERK
                                     No. 99-13065


                        D. C. Docket No. 97-06012-CR-WDF


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellant,

                                         versus

CHRISTOPHER PLUMMER,

                                                             Defendant-Appellee.



                    Appeal from the United States District Court
                        for the Southern District of Florida

                                  (August 11, 2000)

Before TJOFLAT, MARCUS, and CUDAHY*, Circuit Judges.

MARCUS, Circuit Judge:



     *
      Honorable Richard D. Cudahy, U.S. Circuit Judge for the Seventh Circuit, sitting by
designation.
      This appeal arises out of the district court’s dismissal of a two-count

indictment against Defendant Christopher Plummer, a United States and Bahamian

citizen whose boat allegedly was in possession of over $50,000 dollars worth of

Cuban cigars when it was halted off the Florida coast. Plummer was charged in

Count I with attempting to smuggle the cigars into the United States in violation of

18 U.S.C. § 545 and in Count II with unauthorized transportation outside of the

United States of merchandise manufactured in Cuba in violation of the Trading

With the Enemy Act, 50 U.S.C. Appendix §§ 5(b) and 16 (“TWEA”). The district

court dismissed both counts, holding that Defendant was not inside United States

territorial waters when seized and thus could not be guilty of attempted smuggling,

and that the carrying of Cuban cigars abroad could not lawfully trigger the

applicability of the TWEA. Because the fact that Plummer’s wrongful acts

occurred outside U.S. territory does not as a matter of law prevent his prosecution

under these statutes, we reverse the order of dismissal.

                                          I.

      On February 5, 1997, a federal grand jury in the Southern District of Florida

returned a two-count indictment against Plummer. The allegations are

straightforward. Count I alleges that on or about August 4, 1996, Plummer

“willfully and knowingly and with intent to defraud the United States” attempted


                                          2
to “smuggle and clandestinely introduce into the United States” approximately 121

boxes of cigars manufactured in Cuba with a value of greater than $50,000, in

violation of 18 U.S.C. §§ 545 and 3238 (a venue statute). Count II alleges that

Plummer -- “a person subject to the jurisdiction of the United States” -- knowingly

and willfully “transport[ed] outside of the United States merchandise made and

derived in whole or in part of any article which is the growth, produce, or

manufacture of Cuba, without such transaction having been authorized by the

Secretary of Treasury” in violation of 50 U.S.C. Appendix §§ 5(b) and 16 and

implementing regulations. The indictment does not allege that the unlawful

conduct occurred in United States territory. Rather, it alleges only that Plummer

was “brought to the Southern District of Florida.”

       On April 8, 1997, Plummer moved to dismiss the indictment. The motion

was assigned to a magistrate judge, who issued a report and recommendation

recommending that the motion be denied.1 Plummer filed objections. On July 31,

1999, the district court overruled the magistrate judge’s recommendation, granted

the motion, and dismissed the indictment. The court later issued a corrected

dismissal order on August 12, 1999.



  1
    The magistrate judge’s report was highly detailed, and recommended that the motion be denied
for essentially the same reasons we set forth in this opinion.

                                               3
      The district court began its opinion by reciting facts beyond those alleged in

the indictment which had been proffered at various pre-trial hearings. With respect

to Count I, the court, citing “indirect authority from drug cases,” found that “to

constitute attempted smuggling under section 545 there must be, at a minimum, an

allegation that the defendant willfully brought the prohibited merchandise into

waters of the United States.” Dist. Ct. Op. at 4. Relying on the facts set out at the

start of its opinion, the court then ruled that “when [Plummer’s] vessel was

intercepted on the high seas with exposed boxes of Cuban cigars, still some 40

miles from waters of the United States, and he was forcibly brought into this

country, [Plummer] had not taken the crime of smuggling merchandise into the

United States to the brink of completion.” Id. at 5. With respect to Count II, the

district court offered multiple reasons for dismissal (only a few of which are

argued by Plummer on appeal). The district court found that the regulations

applying 50 U.S.C. Appendix §§ 5(b) and 16 to Cuba were invalid as “exceeding

delegated powers” to the extent they purported to apply these statutes

extraterritorially. Id. at 9. The court also found that “it is not alleged that any

enemy country or enemy national has an interest in the cigars as would be required

to invoke section 5(b)(1)(B).” Id. The court found as well that “the indictment

does not allege in Count II that the defendant willfully and knowingly sent or


                                           4
brought Cuban cigars into the United States.” Id. Finally, the court determined that

“[w]hen confronted in international waters the defendant was not a person subject

to the jurisdiction of the United States.” Id. The district court ultimately found

“convincing” Plummer’s contention that “if [Plummer] could be found in violation

of [the TWEA] on the facts of this case then a United States citizen who purchases

or smokes a Cuban cigar anywhere in the world could be found guilty of violating

the regulations,” contrary to the intent of Congress. Id. The Government timely

appealed the district court’s order.

                                                  II.

       We turn first to the district court’s dismissal of Count I.2 The Government

argues that the indictment alleges all that is necessary to state the offense of

attempted smuggling in violation of 18 U.S.C. § 545. The Government also

contends that even though the indictment does not allege that Plummer’s unlawful

acts occurred in United States territory, the statute applies extraterritorially.

Plummer responds that Count I fails to allege an “attempt” because acts committed

entirely outside U.S. territory cannot, as a matter of law, constitute a “substantial




   2
    The parties correctly agree that this appeal raises issues of statutory interpretation that must be
reviewed de novo. See, e.g., United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991).

                                                  5
step” toward completion of the offense of smuggling. Plummer also maintains that

section 545’s attempt provision cannot be applied extraterritorially.

      Title 18 U.S.C. § 545 provides in pertinent part that “[w]hoever knowingly

and willfully, with intent to defraud the United States, smuggles, or clandestinely

introduces or attempts to smuggle or clandestinely introduce into the United States

any merchandise which should have been invoiced” shall be guilty of an offense.

The prohibition against “attempts to smuggle” was added to the statute by the

Violent Crime Control and Law Enforcement Act of 1994 in order to “eliminate

inconsistencies and gaps in coverage.” See H.R. Conf. Rep. No. 711, reprinted at

1994 U.S.C.C.A.N. 1839 (1994). To date, no published decision has addressed the

scope or extraterritorial effect of section 545’s attempt provision.

      As an initial matter, we have no difficulty concluding that Count I

adequately states a violation of that provision. In reviewing a motion to dismiss an

indictment we look only at whether the Government has alleged each of the

elements of the statute. See, e.g., United States v. Fitapelli, 786 F.2d 1461, 1463

(11th Cir. 1986) (“In judging the sufficiency of the indictment, the court must look

to the allegations and, taking the allegations to be true, determine whether a

criminal offense has been stated.”); United States v. Cadillac Overall Supply Co.,

568 F.2d 1078, 1982 (5th Cir. 1978) (“[W]e must view the [indictment] . . . to


                                           6
determine whether it sets forth the elements of the offense charged . . . . In this

Circuit, we have held that, ordinarily, the pleading of the allegations in terms of the

statute is sufficient . . . .”); see also Fed. R. Crim. P. 7(c)(1) (indictment should be a

“plain, concise and definite written statement of the essential facts constituting the

offense charged”). Here, the Government has expressly alleged that Plummer

“willfully and knowingly and with intent to defraud the United States” attempted

to “smuggle and clandestinely introduce into the United States” approximately 121

boxes of cigars manufactured in Cuba in violation of section 545. The district

court’s finding that the Government alleged only an “intent to smuggle” overlooks

the plain language of the indictment.3

       Moreover, we reject the argument that, as a matter of law, the offense of

attempted smuggling can never be predicated on acts occurring exclusively outside

U.S. territory because the underlying offense of smuggling can only be completed

on U.S. territory. A conviction for criminal attempt generally requires proof that



   3
     The district court’s conclusion appears to have been based at least in part on its view of facts
not alleged in the indictment. At this stage, however, the focus is the indictment itself; and while
both parties discussed the underlying facts at pre-trial hearings and in their written submissions, the
parties also advised the district court that in ruling on the motion it was limited to the contents of
the indictment. During oral argument before this Court Plummer maintained that we nevertheless
could consider the undisputed fact that the boat was stopped in international waters some 40 miles
from the U.S. mainland. We find it unnecessary to do so, because the fact that Plummer was 40
miles off the U.S. mainland (as opposed to simply being an unspecified distance outside U.S.
territory) does not alter our analysis of whether this indictment states an offense.

                                                  7
the defendant (1) was acting with state of mind required for commission of the

crime; and (2) was engaged in conduct that constitutes a substantial step toward

commission of the crime. See United States v. Carothers, 121 F.3d 659, 661 (11th

Cir. 1997) (citing United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)).

This inquiry is by definition highly fact-specific. We see no reason why facts

could not be developed at trial to establish that a defendant such as Plummer had

formed the requisite intent and had taken a substantial step toward the completed

offense of smuggling even though he was outside U.S. territory at the time he was

apprehended.

      The bright-line rule adopted by the district court has no foundation in the

law of attempt or the language of section 545. While Plummer fairly asserts that

the defendant’s proximity to the intended location of a crime may be one

consideration in determining whether his conduct represents a substantial step

toward completion of the crime, it is certainly not the sole consideration, and in

any case only has meaning when other factors (such as the nature of the intended

offense, the type of transportation available, and the course of the vessel, just to

name a few) are also taken into account. Whether Plummer’s conduct advanced

far enough to constitute an attempt is an issue for factual development and trial, not

one for this Court to resolve as a matter of law based solely on the indictment.


                                           8
      Plummer’s citations to Keck v. United States, 172 U.S. 434, 19 S. Ct. 254,

43 L. Ed. 505 (1899) and United States v. Lespier, 601 F.2d 22 (1st Cir. 1979) do

not change this result. In Keck, the Supreme Court held with respect to the

predecessor statute to section 545 that the crime of smuggling was not complete

until the illegal goods landed on shore. 172 U.S. at 444-45, 19 S. Ct. at 257 (“mere

acts of concealment of merchandise on entering the waters of the United States,

however preparatory they may be and however cogently they may indicate an

intention of thereafter smuggling or clandestinely introducing, at best are but steps

or attempts not alone in themselves constituting smuggling”). In Lespier, the First

Circuit, with a “sense of frustration,” applied the holding in Keck to reverse a

smuggling conviction where the illegal goods had not yet been brought on shore at

the time the boat was seized in U.S. territorial waters. 601 F.2d at 28.

      As Plummer concedes, neither Keck nor Lespier interpreted the new attempt

provision of section 545. See Keck, 172 U.S. at 444, 19 S. Ct. at 257 (stressing

that the prior version of the statute “d[id] not include mere attempts”). Indeed,

Plummer acknowledges that the facts of Keck would constitute the crime of

attempt under the current version of the statute. Nothing in either opinion supports

the notion that Plummer’s alleged acts in this case cannot constitute attempted

smuggling. In particular, neither opinion holds that as a matter of law the acts


                                          9
allegedly constituting the “substantial step” toward smuggling cannot occur outside

U.S. territory. Cf. United States v. Ritterman, 273 U.S. 261, 268, 47 S. Ct. 371,

372, 71 L. Ed. 636 (1927) (Keck “did not decide that a man who wishes to

smuggle must wait until he can find a customs house”). Simply put, we find no

basis to dismiss Count I by adopting a bright-line rule that acts outside the United

States can never constitute attempted smuggling in violation of section 545.

      We also reject Plummer’s related argument that section 545’s attempt

provision cannot be applied extraterritorially. Congress unquestionably has the

authority to enforce its laws beyond the territorial boundaries of the United States.

See, e.g., Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-285, 69 S. Ct. 575, 577,

93 L. Ed. 680 (1949). Federal criminal statutes may properly include

extraterritorial effects. See United States v. Baker, 609 F.2d 134, 136 (5th Cir.),

reh’g denied, 613 F.2d 314 (1980). Whether Congress has in fact exercised that

authority in this particular instance is a matter of statutory construction. It is our

task to determine whether Congress intended the attempt provision of 18 U.S.C. §

545 to apply to United States citizens engaged in conduct outside of the United

States.




                                           10
      In United States v. Bowman, 260 U.S. 94, 43 S. Ct. 33, 67 L. Ed. 149

(1922), the Supreme Court adopted the following framework for analyzing the

extraterritorial effect of federal criminal statutes such as section 545:

      The necessary locus [of the crime], when not specially defined,
      depends upon the purpose of Congress as evinced by the description
      and nature of the crime and upon the territorial limitations upon the
      power and jurisdiction of a government to punish crime under the law
      of nations. Crimes against private individuals or their property, like
      assaults, murder, burglary, larceny, robbery, arson, embezzlement,
      and frauds of all kinds, which affect the peace and good order of the
      community must, of course, be committed within the territorial
      jurisdiction of the government where it may properly exercise it. If
      punishment of them is to be extended to include those committed
      outside of the strict territorial jurisdiction, it is natural for Congress to
      say so in the statute, and failure to do so will negative the purpose of
      Congress in this regard. But the same rule of interpretation should not
      be applied to criminal statutes which are, as a class, not logically
      dependent on their locality for the government’s jurisdiction, but are
      enacted because of the right of the government to defend itself against
      obstruction, or fraud wherever perpetrated, especially if committed by
      its own citizens, officers, or agents. Some such offenses can only be
      committed within the territorial jurisdiction of the government
      because of the local acts required to constitute them. Others are such
      that to limit their locus to the strictly territorial jurisdiction would be
      greatly to curtail the scope and usefulness of the statute and leave
      open a large immunity for frauds as easily committed by citizens on
      the high seas and in foreign countries as at home. In such cases,
      Congress has not thought it necessary to make specific provision in
      the law that the locus shall include the high seas and foreign countries,
      but allows it to be inferred from the nature of the offense.

Id. at 97-98, 43 S. Ct. at 41 (emphasis added). Thus, as this Court explained in

United States v. MacAllister, 160 F.3d 1304, 1307-08 (11th Cir. 1998), reh’g and


                                           11
reh’g en banc denied, 176 F.3d 494 (11th Cir.), cert. denied, 120 S. Ct. 318 (1999):

“Bowman established the rule that Congress need not expressly provide for

extraterritorial application of a criminal statute if the nature of the offense is such

that it may be inferred.”4 On authority of Bowman, courts in this Circuit and

elsewhere have routinely inferred congressional intent to provide for

extraterritorial jurisdiction over foreign offenses that cause domestic harm. See,

e.g., MacAllister (discussed infra); United States v. Benitez, 741 F.2d 1312, 1316-

17 (11th Cir. 1984) (conspiracy to murder government agents and assault of

government agents abroad); United States v. Perez-Herrera, 610 F.2d 289, 290 (5th

Cir. 1980) (attempt to import marijuana into the United States); Baker, 609 F.2d at

137-39 (possession with intent to distribute and conspiracy to import marijuana);

see also United States v. Vasquez-Velasco, 15 F.3d 833, 839 n. 4 (9th Cir. 1994)



    4
      Plummer proposes that the Supreme Court’s decision in E.E.O.C. v. Arabian American Oil
Company, 499 U.S. 244, 111 S. Ct. 1227, 113 L. Ed. 2d 274 (1991) overruled Bowman and requires
a clear Congressional statement of intent to apply a criminal statute extraterritorially. We rejected
this argument in MacAllister and thus are bound to adhere to that decision. See United States v.
Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc). As we observed in MacAllister, Arabian
American was a civil case, and did not even refer to Bowman let alone purport to overrule it. We
are not aware of any court to this day that has relied on Arabian American to hold Bowman
inapplicable to a criminal statute such as the one at issue here, and the two cases that Plummer says
“question” Bowman in light of Arabian American do not question its applicability to this kind of
statute. United States v. Dawn, 129 F.3d 878, 882 n.7 (7th Cir. 1997) (“Bowman recognizes an
exception to the presumption against extraterritorial intent for ‘criminal statutes . . .’”); Kollias v.
D & G Marine Maint., 29 F.3d 67, 71 (2d Cir. 1994) (after Arabian American, Bowman applies to
“only criminal statutes and perhaps only those relating to the government’s power to prosecute
wrongs committed against it”).

                                                  12
(murder abroad to further a drug-trafficking enterprise); United States v. Harvey, 2

F.3d 1318, 1329 (3d Cir. 1993) (possession of child pornography made abroad);

United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir. 1991) (accessory

after-the-fact to kidnaping and murder of government agent abroad); Chua Han

Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984) (conspiracy to import

drugs into the United States).

      Relying on Bowman, the Ninth Circuit in Brulay v. United States, 383 F.2d

345 (9th Cir.), cert. denied, 389 U.S. 986, 88 S. Ct. 469, 19 L. Ed. 2d 478 (1967)

determined that Congress intended the pre-1994 version of section 545 to apply

extraterritorially. That case involved a conspiracy to smuggle amphetamine tablets

into the United States in violation of section 545 and the general conspiracy

statute, 18 U.S.C. § 371. The court found that even though the alleged conspiracy

had not been formed in the United States, the defendant’s overt acts occurred

outside the United States, and the defendant was arrested outside the United States,

the statute still could be applied to his conduct. The court reasoned: “Since

smuggling by its very nature involves foreign countries, and since the

accomplishment of the crime always requires some action in a foreign country, we

have no difficulty inferring that Congress did intend that the provisions of 18

U.S.C. § 545 should extend to foreign countries at least as to citizens of the United


                                         13
States . . . .” 383 F.2d at 350. Although this Court has not had occasion to adopt

Brulay, we did endorse that decision in MacAllister, where we ruled that even in

the absence of a clear Congressional statement of intent 18 U.S.C. § 963 could be

applied extraterritorially to reach a conspiracy to export cocaine from Canada to

the United States. We explained that “‘[b]y its very nature [drug smuggling]

involves foreign countries, and . . . the accomplishment of the crime always

requires some action in a foreign country . . . .’” 160 F.3d at 1308 (quoting

Brulay).

      We agree with this reasoning and find that Congress’s intent to apply section

545’s attempt provision extraterritorially may be inferred from the nature of the

offense and the problem at which the statute is directed. Although the completed

crime of smuggling does require some conduct within U.S. territory, smuggling is

quintessentially an international crime, and the acts constituting an attempt to

smuggle are not “logically dependent on their locality.” Bowman, 260 U.S. at 98,

43 S. Ct. at 41. On the contrary, those acts are as likely, if not more likely, to

occur beyond U.S. territory as they are to occur within U.S. territory. Smuggling

itself necessarily involves activities outside U.S. territory, and the accomplishment

of the crime always requires some action in foreign countries or international

waters. Indeed, in order to smuggle goods into the United States, the goods must


                                          14
be located outside the United States. There is no reason to believe that Congress

would have intended to criminalize the “on shore” acts constituting an attempt to

smuggle while leaving unchecked the same kinds of acts occurring elsewhere,

especially when the acts are perpetrated by a United States citizen. Congress’s

addition of an attempt clause to section 545 in order to “eliminate . . . gaps in

coverage” also strongly suggests its intent not to limit the territorial reach of the

statute.

       Plummer makes essentially two arguments against applying section 545’s

attempt provision extraterritorially. First, he argues that attempted smuggling falls

into the first category of crimes discussed in Bowman (those “logically dependent

on their locality”). As explained above, however, the crime of attempted

smuggling, unlike the completed crime of smuggling, does not by definition

require conduct on U.S. territory. A defendant may just as readily form the

requisite intent, and take a substantial step toward bringing the prohibited goods to

shore, from outside U.S. territory as inside. Section 545’s attempt provision is the

type of law that falls into Bowman’s second category, such that “to limit [its] locus

to the strictly territorial jurisdiction would be greatly to curtail the scope and

usefulness of the statute and leave open a large immunity for frauds as easily

committed by citizens on the high seas and in foreign countries as at home.” Id.


                                           15
      Second, Plummer argues that cases like Brulay and MacAllister are

inapposite because they involve conspiracies rather than attempts. We find this

distinction unpersuasive. Attempt, like conspiracy, is an inchoate crime that can be

committed regardless of whether the object of the venture is achieved. See, e.g.,

United States v. Rey, 641 F.2d 222, 224 n.6 (5th Cir.) (“When the underlying

offense is an inchoate one such as attempt or conspiracy, then the attempt or

conspiracy is all that must be shown to establish the underlying offense, and it is

not necessary to show the completion of the objective of that inchoate crime.”),

reh’g denied, 646 F.2d 566 (1981). Accordingly, territorial limitations on the

location of acts required to complete the offense do not necessarily limit where the

acts merely constituting an attempt or conspiracy might occur.

      In an analogous case, this Court in binding precedent found that an attempt

provision in a federal smuggling statute had extraterritorial application. In Perez-

Herrera, we addressed 21 U.S.C. § 963 in connection with an alleged attempt to

import narcotics into the United States. The defendants argued that they

committed no crime because the indictment did not allege that any part of the

attempt was made in the United States (defendants were apprehended at sea 70

miles from U.S. territory). We rejected their argument, observing that where the

effect of limiting a criminal statute “to acts entirely within the United States


                                          16
‘would be greatly to curtail the scope and usefulness of the statute,’ congressional

intent to legislate extraterritorially will be inferred.” 610 F.2d at 290 (quoting

Bowman, 260 U.S. at 98, 43 S. Ct. at 41). As we explained, “[l]imiting the

application of section 963 to attempts committed at least partially in the United

States would not eliminate all prosecutions, but, by setting up a free-zone just

beyond our territorial waters where smugglers could safely await opportunities to

move drugs to the mainland, such a construction would substantially impair

enforcement activities.” Id. at 292. We also explained that an attempt to import

narcotics, just like the completed crime, has “real and significant effects within this

country” because “even an attempt to violate the law injures the state” and burdens

domestic law enforcement agencies. Id. The same concerns justify inferring a

congressional intent to apply section 545 extraterritorially.5

        Finally, we see no international law difficulty in applying section 545

extraterritorially in this case. See Rivard v. United States, 375 F.2d 882, 885 (5th


       5
         Plummer argues that Perez-Herrera (and other cases involving drug smuggling) is
distinguishable because that opinion rests on the assumption that illegal narcotics are “commodities
outlawed by all nations and considered a fit subject for commerce by none,” 610 F.2d at 292, and
therefore Congress has greater latitude to regulate extraterritorial conduct. But the former Fifth
Circuit’s opinion did not turn solely or even primarily on that assumption; it rested in equal measure
on the same kinds of “practical considerations related to the operation of the statute,” id. at 291, that
are present here. Moreover, the former Fifth Circuit’s remark was simply made to distinguish
Cunard S.S. Co. v. Mellon, 262 U.S. 100, 43 S. Ct. 504, 67 L. Ed. 894 (1923), a case where the
Supreme Court determined that certain Prohibition-related statutes were expressly limited to conduct
within U.S. territory. Section 545, significantly, has no such express limitation.

                                                   17
Cir. 1967) (noting that the exercise of extraterritorial jurisdiction should comport

with international law). In Rivard, we explained that the law of nations permits the

exercise of criminal jurisdiction under five general principles. Id. at 885-86. The

Government asserts that jurisdiction here is proper under the “territorial” principle,

which permits jurisdiction over acts elsewhere that have effects within the United

States. Id. at 886-87. Plummer contends that this principle does not support

jurisdiction in this case, because he did not complete the crime of smuggling and

therefore his acts in international waters did not have effects in the United States.

But as Perez-Herrera suggests, even an attempt to smuggle prohibited merchandise

into the United States has effects in this country. In any event, we find that

jurisdiction exists under the “nationality” principle, which permits a state to

exercise criminal jurisdiction over one of its nationals. Id. at 885 & 886 n.6.

Plummer is concededly a United States citizen, and therefore exercising

jurisdiction over him in this case is proper. See United States v. Columba-Colella,

604 F.2d 356, 358 (5th Cir. 1979) (“a country may supervise and regulate the acts

of its citizens both within and without its territory”); see also Harvey, 2 F.3d at

1329; United States v. King, 552 F.2d 833, 851 (9th Cir. 1976). Accordingly, we

conclude that Count I of the indictment states the offense of attempted smuggling

in violation of 18 U.S.C. § 545. We therefore reverse the dismissal of Count I.


                                          18
                                         III.

      We reach the same conclusion with respect to Count II, which alleges a

violation of sections 5(b) and 16 of the Trading with the Enemy Act. Section 5(b)

of the TWEA authorizes the President, through a designated agency, to

“investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any

acquisition, holding, withholding, use, transfer, withdrawal, transportation,

importation or exportation of, or dealing in, or exercising any right, power, or

privilege with respect to, or transactions involving, any property in which any

foreign country or a national thereof has any interest, by any person, or with

respect to any property, subject to the jurisdiction of the United States.” 50 U.S.C.

App. § 5(b)(1)(B). Section 16, in turn, criminalizes a violation of any “order of the

President issued in compliance with the provisions of the Act.” 50 U.S.C. App. §

16.

      The relevant regulations are part of the Cuban Asset Control Regulations

(“CACRs”), which were implemented in 1963 under Section 5(b) of the TWEA in

response to alleged Cuban efforts to destabilize Latin American governments. See

Regan v. Wald, 468 U.S. 222, 226, 104 S. Ct. 3026, 3030, 82 L. Ed. 2d 171 (1984)

(citing Presidential Proclamation No. 3447, 3 C.F.R. § 157 (1959-1963 Comp.)).

They provide that “[e]xcept as specifically authorized by the Secretary of the


                                          19
Treasury (or any person, agency, or instrumentality designated by him) by means

of regulations, rulings, instructions, licenses, or otherwise, no person subject to the

jurisdiction of the United States may purchase, transport, import, or otherwise deal

in or engage in any transaction with respect to any merchandise outside the United

States if such merchandise: (1) is of Cuban origin; or (2) is or has been located in

or transported from or through Cuba; or (3) is made or derived in whole or in part

of any article which is the growth, produce or manufacture of Cuba.” 31 C.F.R. §

515.204. The regulations define the statutory term “person subject to the

jurisdiction of the United States” as including “[a]ny individual, wherever located,

who is a citizen or resident of the United States.” 31 C.F.R. § 515.329.6

   6
     The TWEA was first passed in 1917, six months after the United States entered World War I.
See Act of Oct. 6, 1917, ch. 106, 40 Stat. 411. As originally enacted, the TWEA dealt only with the
President’s use of economic powers in times of war, but was expanded in 1933 to deal with
peacetime national emergencies. Act of Mar. 9, 1933, ch. 1, 48 Stat. 1. The President delegated his
authority under the TWEA to the Secretary of the Treasury, Exec. Order No. 9193, 3 C.F.R. 1174,
1175 (1942), who in turn delegated that authority to the Office of Foreign Assets Control, Treasury
Department Order No. 128 (Rev. 1, Oct. 15, 1962). Section 5(b) of the TWEA was amended in
1977 to limit the President’s authority once again to times of war. See Pub. L. No. 95-223, § 101,
91 Stat. 1625; the same bill enacted a new law that now covers the President’s powers in response
to peacetime crises. See International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06
(“IEEPA”). Significantly, however, the IEEPA grandfathered the existing exercises of the
President’s “national emergency” authority, see Pub. L. 95-223, § 101(b), 91 Stat. 1625, and
permitted the President to extend their exercise at one-year intervals provided that such an extension
“is in the national interest.” Pub. L. 95-223, § 101(c), 91 Stat. 1625. The recently enacted Cuban
Liberty and Democratic Solidarity Act of 1996, codified at 22 U.S.C. §§ 6021-24, 6031-46, 6061-67,
6081-85 & 6091, prescribes certain conditions that must occur in Cuba before the President may lift
the embargo, including the transition to a democratically elected government, and requires the
President to consult with Congress before lifting it. See 22 U.S.C. §§ 6061, 6064-6066. This Act
continues the embargo indefinitely and effectively suspends the IEEPA’s requirement that the
President revisit the embargo each year. See 22 U.S.C. § 6032(h) (providing that all restrictions

                                                 20
       Count II expressly alleges the elements of a violation of these provisions. It

asserts that Plummer -- “a person subject to the jurisdiction of the United States” --

knowingly and willfully “transport[ed] outside of the United States merchandise

made and derived in whole or in part of any article which is the growth, produce,

or manufacture of Cuba, without such transaction having been authorized by the

Secretary of Treasury.” Nothing more need be alleged to withstand a motion to

dismiss.

       Plummer makes two arguments for dismissal (neither of which was squarely

adopted by the district court in its opinion). First, Plummer contends that wholly

extraterritorial transportation of a Cuban cigar cannot be a crime because mere

transportation of a Cuban product is not a “transaction” within the meaning of the

statute. Relatedly, he contends that the regulations constitute an unlawful

delegation of Congressional power to the extent they seek to prohibit mere

transportation of a Cuban product. But these arguments ignore the plain language

of the TWEA, which expressly authorizes the President to prohibit not only

transactions, but also “transportation . . . of . . . any property in which a foreign




under the CACRs shall remain in effect until a democratically elected government is in power in
Cuba).

                                              21
country . . . has any interest.” 50 U.S.C. App. § 5(b) (1)(B) (emphasis added). The

regulations simply implement this directive with respect to Cuban products.7

        Second, Plummer asserts that imposing criminal liability based on “carrying

a Cuban cigar, anywhere in the world” would be irrational and therefore violate

substantive due process. He completely fails, however, to meet his burden of

showing that the regulations are not rationally related to any conceivable

governmental interest.

        Under our substantive due process jurisprudence, a statute or regulation will

be upheld so long as it is rationally related to a lawful governmental purpose and is

not unlawfully arbitrary or discriminatory. See, e.g., TRM, Inc. v. United States,

52 F.3d 941, 945 (11th Cir. 1995). As we have explained, “‘[t]he rational basis test

is not a rigorous standard. . . . The test is generally easily met. . . . The task is to

determine if any set of facts may be reasonably conceived to justify [the

regulation]. Even if the court is convinced that the political branch has made an

improvident, ill-advised or unnecessary decision, it must uphold the act if it bears a

rational relation to a legitimate government purpose.’” Id. at 945-46 (quoting Cash


    7
     Plummer seems to suggest that the TWEA’s reference to prohibiting transporation has been
displaced by the 1996 Cuban Liberty and Democratic Solidarity Act, which Plummer contends
“reinforces the notion that wholly extraterritorial ‘transportation’ cannot be a crime.” But we are
aware of no evidence that the 1996 Act altered or affected the criminal liability created by the
TWEA and the CACRs for transporting Cuban products without authorization.

                                                22
Inn of Dade, Inc. v. Metropolitan Dade Cty., 938 F.2d 1239, 1241 (11th Cir. 1991)

(internal quotation marks omitted)).

      In this case, even greater deference is in order. The authority delegated by

Congress to the President under the TWEA is extensive. “[B]oth the legislative

history and cases interpreting the [Act] fully sustain the broad authority of the

Executive when acting under this congressional grant of power.” Dames & Moore

v. Regan, 453 U.S. 654, 672, 101 S. Ct. 2972, 2974, 69 L. Ed. 2d 918 (1981). The

delegation of such broad powers to the President is consistent with the President’s

constitutionally vested role as the nation’s authority in the field of foreign affairs.

It is a basic principle of our system of government that, when acting pursuant to

Congressional authorization in the field of foreign affairs, the President commands

the political authority of the United States. See, e.g., United States v.

Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S. Ct. 216, 221, 81 L. Ed. 225

(1936) (“within the international field” Congress may “accord to the President a

degree of discretion and freedom from statutory restriction which would not be

admissible were domestic affairs alone involved”). Conversely, the role of the

judiciary in foreign affairs is limited: “Matters relating ‘to the conduct of foreign

relations . . . are so exclusively entrusted to the political branches of government as

to be largely immune from judicial inquiry or interference.’” Wald, 468 U.S. at


                                           23
242, 104 S. Ct. at 3038 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72

S. Ct. 512, 519, 96 L. Ed. 586 (1952)).

      Relying on these principles, courts have on several occasions rejected

attempts to “second-guess” the CACRs on the ground that the regulations serve no

rational purpose in light of changing global or national political priorities. See,

e.g., Wald, 468 U.S. at 242, 104 S. Ct. at 3038 (refusing to hear claim that absence

of Cuban missile crisis security risk left Cuban embargo without sufficient foreign

policy justification); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431,

1439 (9th Cir. 1996) (sustaining travel ban to Cuba despite argument that “the

President’s current reason for the embargo -- to pressure the Cuban government

into making democratic reforms -- is not as compelling a policy for an embargo as

were previous justifications that relied on national security concerns”). Plummer

has not met his burden of showing that the statutory and regulatory provisions

restricting the unauthorized transportation of Cuban products (including cigars) are

wholly irrational or unrelated to any legitimate governmental interest. The

transportation of such goods may generate revenue and foreign currency for, and

thereby help sustain, a regime that is deemed by the political branches of




                                          24
government to threaten national interests.8 Although Congress and the Executive

Branch undoubtedly have the power to revise the TWEA and the CACRs to reflect

changed national priorities, and reasonable people may disagree as to whether they

should do so now, the fact that they had not done so by the time of Plummer’s

alleged misconduct does not render those provisions unconstitutional. In any

event, Plummer’s “carrying one cigar, anywhere in the world” argument rings

hollow given that he has been indicted not for carrying one cigar, but rather for

transporting 121 boxes of cigars worth over $50,000 with the intent to smuggle

them into the United States. We therefore reject Plummer’s due process

objections.

       The other grounds for dismissal identified in the district court’s opinion are

not squarely advanced by Plummer on appeal and do not merit significant

discussion. Contrary to the district court’s suggestion, Congressional intent to


   8
    The Government has long asserted that the purposes underlying the CACRs include “deny[ing]
to Cuba or its nationals hard currency which might be used to promote activities inimical to the
interests of the United States.” Real v. Simon, 510 F.2d 557, 563 (5th Cir.), reh’g denied, 514 F.2d
738 (1975). As recently as 1996, when it codified and strengthened the embargo by enacting the
Cuban Liberty and Democratic Solidarity Act, Congress justified the measure by describing Cuba
as a threat to national security and making extensive findings to that effect. See 22 U.S.C. § 6021.
Accordingly, we cannot accept Plummer’s contention that applying the TWEA to criminalize the
transportation of Cuban products such as cigars is no longer rationally related to the TWEA’s
original goal of promoting national security. In any event, we are required to consider “any rationale
Congress could have had for enacting the statute . . . regardless of whether Congress actually
considered that rationale at the time the bill was passed.” TRM, 52 F.3d at 946 (citing United States
v. Osburn, 955 F.2d 1500, 1505 (11th Cir. 1992) (internal quotation marks omitted)).

                                                 25
extend the TWEA to acts occurring outside U.S. territory clearly may be inferred

from the language of the statute as well as the nature of the harm the statute is

designed to prevent; the international focus of the statute is self-evident, and to

limit its prohibitions to acts occurring within the United States would undermine

the statute’s effectiveness. See Bowman, 260 U.S. at 98, 43 S. Ct. at 41. The fact

that the indictment does not expressly allege that an “enemy country or enemy

national” had an interest in the cigars allegedly transported by Plummer does not

require dismissal; the indictment expressly alleges that the cigars were

manufactured in Cuba, an enemy country within the scope of the regulations, and

under the regulations a country such as Cuba has an interest in the transportation of

goods manufactured within its borders. See 31 C.F.R. § 515.312 (“The term

‘interest’ when used with respect to property shall mean an interest of any nature

whatsoever, direct or indirect”); United States v. Broverman, 180 F. Supp. 631,

636 (S.D.N.Y. 1959) (rejecting similar argument with respect to transactions in

hog bristles from China because “it is not necessary that the indictment specify in

precise statutory language that China or a Chinese national has an interest in the

hog bristles”). Finally, the indictment expressly alleges that Plummer -- a United

States citizen -- is a “person subject to the jurisdiction of the United States” within




                                          26
the meaning of the TWEA. Contrary to the district court’s analysis, that allegation

suffices regardless of where Plummer was apprehended.

      In short, we conclude that the district court erred by dismissing both Count I

and Count II. We reverse the district court’s dismissal of the indictment, and

remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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