                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4596


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MOHAMMAD ASHRAY MOHAMMAD-OMAR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:07-cr-00425-CMH-003)


Submitted:    March 25, 2009                 Decided:   April 27, 2009


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant.   Chuck Rosenberg, United States Attorney, David B.
Goodhand, Lawrence J. Leiser, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Mohammad Ashray Mohammad-Omar (“Omar”) was convicted

following a jury trial of conspiracy to import one kilogram or

more of heroin, in violation of 21 U.S.C. §§ 952(a), 959, 963,

and 960(b)(1)(A) (2006), and conspiracy to possess with intent

to distribute heroin, in violation of 21 U.S.C. § 846 (2006).

Omar challenges his convictions, arguing that the court lacked

personal   jurisdiction       over       him   because       his     conduct    occurred

entirely    in     foreign    countries,        and     that       the     evidence     was

insufficient to support his convictions.                 We affirm.

            Omar      contends      on   appeal       that     the       district     court

lacked    jurisdiction       over    him   because      he     committed       no     crime

within the United States “nor knew of any criminal act committed

or   intended    to   be   committed       within     the    United        States.”      He

argues that prosecution for conduct that occurred entirely in

foreign countries violates the Due Process Clause. 1

            In     general,      congressional          legislation,           including

criminal    statutes,        applies        only      within         the     territorial

jurisdiction of the United States.                 EEOC v. Arabian American Oil

Co., 499 U.S. 244, 248 (1991) (“It is a longstanding principle

      1
        While Omar did not specifically mention a lack of
“minimum contacts” in the district court, his argument in the
district court that the United States had no authority to reach
his extraterritorial conduct is essentially the same argument he
raises on appeal.



                                           2
of American law that legislation of Congress, unless a contrary

intent appears, is meant to apply only within the territorial

jurisdiction of the United States.”) (internal quotation marks

and citation omitted).               This limit “on the extra-territorial

application of a federal statute can be overcome only if there

is an affirmative intention of the Congress clearly expressed.”

Reyes-Gaona v. North Carolina Growers Ass’n, 250 F.3d 861, 864

(4th Cir. 2001) (internal quotation marks and citation omitted).

The statutes prohibiting drug importation under which Omar was

convicted contain just such a congressional expression. Section

959(c)      of    Title   21   of    the   U.S.   Code   provides    that      it    is

“intended to reach acts of manufacture or distribution committed

outside the territorial jurisdiction of the United States.”                         The

same holds true for other sections of the Controlled Substances

Act,       such     as    21   U.S.C.      §§ 952(a), 960,      which        prohibit

importation of controlled substances. 2

                 The Second and Ninth Circuits have held that, while

Congress          may     clearly     express      its      intent      to      reach

extraterritorial          conduct,     a   due    process    analysis        must    be

undertaken to ensure the reach of Congress does not exceed its


       2
       The statutory bases for charging conspiracy may be applied
extraterritorially where the underlying substantive statutes
reach extraterritorial offenses.    See Chua Han Mow v. United
States, 730 F.2d 1308, 1311 (9th Cir. 1984).



                                           3
constitutional grasp.           See United States v. Yousef, 327 F.3d 56

(2d Cir. 2003); United States v. Davis, 905 F.2d 245, 248 (9th

Cir. 1990).      To apply a federal criminal statute to a defendant

extraterritorially without violating due process, “‘there must

be   a    sufficient    nexus    between      the    defendant      and    the   United

States,     so   that   such    application         would   not    be     arbitrary   or

fundamentally unfair.’”          Yousef, 327 F.3d at 111 (quoting Davis,

905 F.2d at 248-49); see United States v. Shahani-Jahromi, 286

F.       Supp.   2d     723,     727-28       (E.D. Va.           2003)     (involving

extraterritorial         application          of       International          Parental

Kidnapping Crime Act).            Regarding the nexus requirement, the

Ninth Circuit has also noted:

         The nexus requirement serves the same purpose as the
         minimum contacts test in personal jurisdiction. It
         ensures that a United States court will assert
         jurisdiction  only   over  a  defendant  who  should
         reasonably anticipate being haled into court in this
         country.

United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th

Cir. 1998) (internal quotation marks and citation omitted).

             We find sufficient contacts in this case.                     Omar’s case

is analogous to Davis, in which the Ninth Circuit addressed a

due process challenge to the extraterritorial application of the

Maritime Drug Law Enforcement Act (“MDLEA”), now codified at 46

U.S.C. §§ 70501-70507 (2006).          Davis was convicted of possession

of, and conspiracy to possess, marijuana on a vessel subject to


                                          4
the jurisdiction of the United States with intent to distribute.

Davis was not a United States citizen, his vessel was not under

U.S.    registry,        and       his    arrest       took    place       on     the       high   seas.

Nevertheless,           the    Ninth       Circuit      found        a    sufficient         nexus    to

apply      the    MDLEA       to     Davis'       extraterritorial               conduct       without

violating the Due Process Clause because the facts of the case

supported        the    “reasonable          conclusion          that          Davis    intended     to

smuggle contraband into United States territory.”                                           Davis, 905

F.2d      at   249.       The        court    noted       that       “[w]here          an    attempted

transaction is aimed at causing criminal acts within the United

States, there is a sufficient basis for the United States to

exercise its jurisdiction.”                   Id.       (internal quotation marks and

citation omitted).

               Omar similarly had ample reason to anticipate being

haled into court in the United States on account of his drug

trafficking        activity          in    Afghanistan,         Dubai,          and    Ghana.        His

partner, Nasrullah, knew the heroin he sold was destined for the

United     States.            With       regard    to     a    planned         2007     transaction,

Nasrullah personally met with an undercover agent he believed to

be   an    American       heroin          distributor.           Nasrullah             affirmatively

indicated        that    his    partner,          Omar,       knew       the    full    details      and

scope of the transaction.                         Because the evidence demonstrated

that the drugs Omar conspired to transport were destined for the



                                                   5
United States, jurisdiction over him was proper.                           See Davis,

905 F.2d at 249.

            In   a   similar   vein,     Omar      contends      the   evidence        was

insufficient to support his conviction for conspiracy to import

heroin because the evidence did not demonstrate that he knew or

intended   that      the   drugs    would    be    distributed       in    the    United

States.    He further claims that no conspiracy can be established

with undercover law enforcement agents.

            “A     defendant       challenging      the      sufficiency         of    the

evidence faces a heavy burden.”                United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).     We review a sufficiency of the evidence challenge by

determining      whether,    viewing    the       evidence      in   the   light       most

favorable to the Government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

doubt.     United States v. Collins, 412 F.3d 515, 519 (4th Cir.

2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).                             We

will uphold the jury’s verdict if substantial evidence supports

it, and will reverse only in those rare cases of clear failure

by the prosecution.         Foster, 507 F.3d at 244-45.                Our review of

the record leads us to conclude that the evidence was sufficient

to support both of Omar’s convictions.

            Accordingly,       we     affirm       Omar’s       convictions.            We

dispense    with     oral    argument       because       the    facts     and        legal

                                         6
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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