On May 19, 2008, the United States Supreme Court issued its decision in United States v. Ressam. The facts are set out one of the worst case scenarios - Ahmed Ressam attempted to enter the United States with explosives in the trunk of his car. His intention was to cause harm at the Los Angeles International Airport. He provided false information to the primary customs officer. The primary customs officer noticed that he was nervous and requested that Ressam pull over for a secondary search. During the secondary search, the explosives were discovered and disaster was adverted (that is the good part of the facts).
Ressam was charged with and subsequently convicted of a number of crimes, including the felony of providing false information of a customs officer and the carrying of explosives "during the commission of" a felony. The "enhanced" punishment for carrying explosives during the commission of a felony was an extra 10 years in prison.
The Appeals Court for the Ninth Circuit set aside the conviction for the charges of carrying of explosives "during the commission of" a felony. The majority of United States Supreme Court reversed the Appeals Court and, consequently, reinstated the conviction and additional 10 year sentence. The majority reasoned that the matter was straight-forward. Mr. Justice Stevens, writing for the majority reasoned:
"While the two provisions were initially identical, Congress’ replacement of the word “unlawfully” in the firearm statute with the phrase “and in relation to,” coupled with the deletion of the word “unlawfully” without any similar replacement in the explosives statute, convinces us that Congress did not intend to introduce a relational requirement into the explosives provision, but rather intended us to accept the more straightforward reading of §844(h).Since respondent was carrying explosives when he violated §1001, he was carrying them “during” the commission of that felony. The statute as presently written requires nothing further."
However, the dissent is very important as it highlights a real problem with the majority decision. Mr. Justice Breyer wrote a dissenting opinion that highlighted the his misgivings due to the broad definition of the term "explosives":
"My problem with the Court’s interpretation is that it would permit conviction of any individual who legally carries explosives at the time that he engages in a totally unrelated felony. “Explosives,” the statute tells us, includes not only obviously explosive material such as “gunpowders” and “dynamite” but also any “chemical compounds” or “mixture[s]” or “device[s]” whose “ignition by fire, by friction, by concussion” or other means “may cause an explosion.” 18 U. S. C. §844(j). And that definition encompasses such commonplace materials as kerosene,gasoline, or certain fertilizers."
He went on to included the following musings, which should raise alarm bells for customs lawyers:
"... the Court’s opinion brings within the statute’s scope (and would impose an additional mandatory 10-year prison term upon), for example, a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truck driver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family,or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower. In such instances the lawful carrying of an “explosive” has nothing whatsoever to do with the unlawful felonies. I cannot imagine why Congress would have wanted the presence of totally irrelevant, lawful behavior to trigger an additional 10-year mandatory prison term."
While it may very well be a good result for Mr. Ressam to spend 10 additional years in jail where he cannot cause harm - what does this mean for the every other person who makes a false statement to a customs officer when transporting goods that could have an explosive purpose? The majority opinion could be interpreted so that the additional punishment would be mandatory when the individual does not have the mens rea or intention for to use the goods to cause an explosion. The majority of the United States Supreme Court did not establish a link between the goods and intention to cause an explosion (which would have been satisfied in the case).
The decision in Ressam leaves too much power in the hands of customs and police officers to threaten to add charges to increase prison terms. Since this would not happen in every case, the application of the law may be used in a discriminatory fashion.
Canadians should be more concerned about crossing the border even when they have no intention to cause harm to their friends in the United States. The problem would also extend to the captain of a vessel or aircraft should they breach one of the many import rules.