                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 Nos. 05-30422
               Plaintiff-Appellant-              05-30441
                   Cross-Appellee,            D.C. No.
               v.
                                         CR-99-00666-001-
                                                JCC
AHMED RESSAM, also known as
Benni Antoine Noris,                      Western District of
              Defendant-Appellee-         Washington, Seattle
                  Cross-Appellant.
                                             ORDER

                     Filed June 6, 2007

    Before: Arthur L. Alarcón, Pamela Ann Rymer, and
            Marsha S. Berzon, Circuit Judges.

                          Order;
               Dissent by Judge O’Scannlain


                          ORDER

  A majority of the panel has voted to deny the petition for
rehearing and to reject the suggestion for rehearing en banc.
Judge Alarcón would grant the petition for rehearing and
accept the suggestion for rehearing en banc.

   The full court has been advised of the suggestion for
rehearing en banc. A judge of the court requested a vote on
whether to rehear the matter en banc. However, the matter
failed to receive a majority of votes of the nonrecused active
judges in favor of en banc consideration. Fed. R. App. P. 35.

   The petition for rehearing is DENIED and the suggestion
for rehearing en banc is REJECTED.

                            7557
7558               UNITED STATES v. RESSAM
O’SCANNLAIN, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by KLEINFELD, GOULD,
BYBEE, CALLAHAN and BEA, Circuit Judges:

   With all due respect to my colleagues, this high-profile
case, involving an individual trained in Afghanistan by al-
Qaeda and convicted of conspiring to detonate explosives at
Los Angeles International Airport as part of a terrorist attack,
is an ideal candidate for rehearing en banc. In United States
v. Ressam, 474 F.3d 597 (9th Cir. 2007), a panel majority
concluded that a conviction under 18 U.S.C. § 844(h)(2)
requires that explosives be carried not only during a felony,
as the statute says, but also in relation to that felony, which
the statute does not say. The panel thus reversed one count of
conviction of “Millennium Bomber” Ahmed Ressam. I dis-
sent from the denial of rehearing en banc because United
States v. Stewart, 779 F.2d 538, 539-40 (9th Cir. 1985), the
two-decade old decision of our court upon which the panel
relied, does not compel the result reached, and, further, by
extending Stewart and reading the “in relation to” language
into § 844(h)(2), we have not only usurped the congressional
function, but have also created a split of authority with every
other United States Court of Appeals that has addressed this
question. See Fed. R. App. P. 35(b)(1)(B).

                               I

   The facts and circumstances surrounding al-Qaeda trainee
Ahmed Ressam’s plot to detonate explosives at Los Angeles
International Airport and his capture as he entered the United
States are well-detailed in the panel opinion. Ressam, 474
F.3d at 599-601. In brief, Ressam and an associate loaded the
trunk of a rental car with explosives, electronic timing
devices, detonators, fertilizer, and aluminum sulfate, and
drove to a ferry terminal at Twassen, British Columbia. Id. at
600. Ressam drove the rental car aboard the ferry, which later
that day docked in Port Angeles, Washington. When Ressam
attempted to drive his car off, a customs inspector stopped
                   UNITED STATES v. RESSAM                 7559
him for inspection. Id. After the customs officer became
suspicious and subjected Ressam’s vehicle to a more intrusive
search, inspectors discovered some of the bomb’s component
parts. Once the car and all its contents were inventoried and
tested, authorities realized that Ressam had all the materials
for a full scale terrorist attack. Id. Ressam was indicted and
convicted on nine counts, including one count of carrying an
explosive during the commission of a felony, in violation of
18 U.S.C. § 844(h)(2). Id. at 600-01.

                               II

   The critical legal issue in this appeal is whether Ressam’s
conviction for carrying an explosive during the commission of
a felony must be reversed because the government did not
also prove that Ressam was carrying the explosives in rela-
tion to the underlying felony (the “relational element”), which
in this case the government designated as making a false
statement in a customs declaration. See 18 U.S.C. § 844(h)
(“Whoever . . . carries an explosive during the commission of
any felony which may be prosecuted in a court of the United
States . . . shall, in addition to the punishment provided for
such felony, be sentenced to imprisonment for 10 years.”).

   The panel reasoned that our decision in Stewart, 779 F.2d
at 539-40 compelled it to conclude that 18 U.S.C. § 844(h)(2)
contains a relational element. I respectfully disagree. Then-
Judge Kennedy’s majority opinion in Stewart construed 18
U.S.C. § 924(c), which made unlawful the carrying of a fire-
arm during the commission of a felony. At the time of Mr.
Stewart’s conviction, § 924(c) did not include an explicit rela-
tional element. See Stewart, 779 F.2d at 539. But by the time
his case reached our court on appeal, “Congress [had] revised
section 924(c), combining former subsections 924(c)(1) and
924(c)(2). The 1984 amendment substituted for the word
‘during’ the phrase ‘during and in relation to.’ ” Id.

 In determining whether the jury was properly instructed at
Mr. Stewart’s trial, our court focused almost entirely upon the
7560                    UNITED STATES v. RESSAM
legislative history of the 1984 amendment. The court’s read-
ing of the legislative history “indicate[d] the ‘in relation to’
language was not intended to create an element of the crime
that did not previously exist, but rather was intended to make
clear a condition already implicit in the statute.” Id. Thus, it
concluded, because the relational element existed at the time
of Stewart’s trial, his jury instruction was in error.

   But critically, there is no similar legislative history as to
§ 844(h)(2) because Congress never amended that statute to
include the language that it added to § 924(c).1 As the Third
Circuit reasoned in reaching a conflicting conclusion than that
of our Ressam panel, “even if the Stewart court was correct
in its analysis of why Congress amended § 924(c), Congress
has not seen fit to modify § 844(h) in the same manner.”
United States v. Rosenberg, 806 F.2d 1169, 1178 (3d Cir.
1986).

   Indeed, it is telling that when Congress did amend
§ 844(h)(2) in 1988, it did not add the relational language. At
that time, Congress had before it our circuit’s decision in
Stewart, 779 F.2d at 539-40, and the Third Circuit’s decision
in Rosenberg, 806 F.2d at 1179. Rosenberg had rejected Stew-
art’s general reasoning and its reasoning as specifically
applied to § 844(h)(2), instead relying upon the plain, unam-
biguous language of that section. With these divergent deci-
sions before it, Congress chose in 1988 not to add the “in
relation to” language to § 844(h)(2). As the Supreme Court
has explained, “where Congress includes particular language
in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten-
  1
    It should go without saying that this may have been a deliberate omis-
sion. The carrying of an explosive during the commission of a crime
greatly increases the risk of injury or death to others, more so than even
a firearm. Plus, it is more likely in the case of explosives than firearms that
the “weapon” may go off accidentally. In short, as a policy matter, Con-
gress may have had good reasons for not amending § 844(h)(2) as it
amended the firearms statute.
                       UNITED STATES v. RESSAM                        7561
tionally and purposely in the disparate inclusion or exclu-
sion.” United States v. Russello, 464 U.S. 16, 23 (1983). This
presumption of a knowing and intentional Congress in my
view compels us to recognize that we are not “constrained” by
Stewart’s reasoning in deciding the proper interpretation of
§ 844(h)(2).

                                    III

   But even were the panel constrained by Stewart, I think it
appropriate to rehear this case en banc because our holding
that § 844(h)(2) includes a relational element is in conflict
with every other circuit which has had occasion to consider
the question. See Rosenberg, 806 F.2d at 1178; United States
v. Ivy, 929 F.2d 147 (5th Cir. 1991); United States v. Jenkins,
2005 WL 3440416, ** 3-5 (6th Cir. 2005) (unpublished).2

   The main thrust of our sister circuits’ decisions is that the
plain language of § 844(h)(2) says nothing about a relational
element, but only requires carrying the explosives during the
commission of a felony. As Rosenberg stated:

      Section 844(h)(2) by its terms only requires that the
      government show that the defendant unlawfully car-
      ried an explosive “during the commission of any fel-
      ony.” The plain everyday meaning of “during” is “at
      the same time” or “at a point in the course of.” See,
      Webster’s Third New International Dictionary 703
      (1961). It does not normally mean “at the same time
      and in connection with . . . .” It is not fitting for this
      court to declare that the crime defined by § 844(h)(2)
      has more elements than those enumerated on the face
      of the statute. If Congress sees fit to add a relational
  2
    The government also contends that the Eighth Circuit’s decision in
United States v. King, 230 F.3d 1364 (8th Cir. 2000) (unpublished), con-
flicts with Ressam, but I think King’s reasoning too difficult to follow and
too conclusory to give it much weight.
7562                   UNITED STATES v. RESSAM
      element to § 844(h)(2), it is certainly free to do so,
      in the same manner that it added a relational element
      to § 924(c).

806 F.2d at 1178-79.

   Further, as the Supreme Court more recently explained,
when interpreting a statute “[w]ith a plain, nonabsurd mean-
ing in view,” we should not undertake to add missing words
or elements, or to soften the impact of Congress’ enactments.
Lamie v. United States Trustee, 540 U.S. 526, 538 (2004).
According to the Court, “[o]ur unwillingness to soften the
import of Congress’ chosen words even if we believe the
words lead to a harsh outcome is longstanding. It results from
‘deference to the supremacy of the Legislature, as well as rec-
ognition that Congressmen typically vote on the language of
a bill.’ ” Id. (quoting United States v. Locke, 471 U.S. 84, 95
(1985) (internal citations omitted)). As Judge Alarcón stated
in his dissent, “Mr. Ressam’s proposed instruction would
have required the District Court to add an element to
§ 844(h)(2) that does not appear in the statute enacted by
Congress.” Ressam, 474 F.3d at 606 (Alarcón, J., dissenting
in part). It remains to be seen how, in practice, this additional
requirement will impact the ability of prosecutors in this cir-
cuit to obtain convictions in explosives and terrorism cases.
But in my view, Lamie confirms that the wisdom of such
additions are firmly left to the determination of the legislative
branch.

  The reasoning and restraint of Lamie and of our sister cir-
cuits’ decisions stand in stark contrast to Stewart and the
panel decision in Ressam.3 The great advantage of rehearing
  3
    I think it is reasonable to question the validity of Stewart’s reasoning
even though the statute has been amended to include the relational ele-
ment. The reliance in that opinion upon the legislative history of an
amendment to determine the scope of the pre-amendment statute is ques-
tionable. See United States v. Price, 361 U.S. 304, 313 (1960) (“[T]he
                        UNITED STATES v. RESSAM                          7563
this appeal before our en banc court is that we could decide
the proper interpretation of § 844(h)(2) and overrule Stewart,
even if it is true that decision has left our circuit with some-
thing less than a “clean slate.” Ressam, 474 F.3d at 602.

                                     IV

  Regardless of whether Stewart was correctly decided, I
would quite simply not allow that decision to control the out-
come of this case without en banc review. Because the panel’s
decision to vacate “Millennium Bomber” Ahmed Ressam’s
conviction under 18 U.S.C. § 844(h)(2) is in square conflict
with the reasoning of our sister circuits and with the caution-
ary pronouncements of the Supreme Court, we should have
reheard this case en banc. I respectfully dissent from the
court’s decision otherwise.




views of a subsequent Congress form a hazardous basis for inferring the
intent of an earlier one.”). And other courts have not read the legislative
history relied upon by Stewart to be so clear. See Rosenberg, 806 F.2d at
1178 (“[W]e do not find that the legislative history to the 1984 amendment
‘strongly implied’ that the ‘in relation to’ language did not affect the scope
of the statute as originally drafted. At most, we find that the legislative
history fails to explain why the ‘in relation to’ phrase was added to the
statute.”); see also Stewart, 779 F.2d at 540 (noting that the legislative his-
tory upon which it relied was “sparse” and “not entirely free of ambigu-
ity”).
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