## Facts

- A U.S. aircraft charter company alerted the DEA that a flight from the Dominican Republic to Belgium was being arranged to transport large quantities of narcotics in numerous suitcases.
- The DEA, working with Dominican authorities, conducted surveillance and used undercover pilots at La Romana Airport.
- Investigators uncovered a plan to move more than 1,000 kilograms of cocaine aboard an aircraft registered in the United States from the Dominican Republic to Belgium.
- Nicolas Epskamp, a Dutch citizen, was recruited to accompany the cocaine and was present while suitcases containing cocaine were loaded onto the aircraft.
- Dominican authorities intervened before departure, arrested Epskamp, and he was later extradited to the United States.
- In the Southern District of New York, a jury convicted Epskamp of (1) conspiracy and (2) possession with intent to distribute cocaine on board a U.S.-registered aircraft, and he was sentenced principally to 264 months’ imprisonment.

## Issues

1. Whether 21 U.S.C. § 959(b)(2) applies extraterritorially to possession with intent to distribute controlled substances on board a U.S.-registered aircraft outside the United States.
2. Whether § 959(b)(2) requires proof that the defendant knew the aircraft was owned by a U.S. citizen or registered in the United States.
3. Whether prosecuting a foreign national for such conduct violates due process absent a sufficient nexus to the United States or adequate fair warning.

## Decision

- The Second Circuit affirmed the convictions and judgment.
- The court held that § 959(b)(2) applies extraterritorially to drug distribution and possession-with-intent-to-distribute on a U.S.-registered aircraft abroad.
- The court held that the government need not prove the defendant’s knowledge of the aircraft’s U.S. registration because the registration/ownership requirement is jurisdictional.
- The court held that applying § 959 to Epskamp did not violate due process because the conduct had a sufficient U.S. nexus and was plainly criminal, providing fair warning.

## Legal Principles

- Congress may provide for extraterritorial application of a federal criminal statute when statutory text and structure clearly indicate that intent.
- Under § 959(b)(2), the fact that an aircraft is U.S.-registered or U.S.-owned functions as a jurisdictional hook; absent clear congressional direction, jurisdictional elements generally do not carry a mens rea requirement.
- Due process permits extraterritorial prosecution when there is a sufficient nexus to the United States so that application of the statute is not arbitrary or fundamentally unfair.
- Fair warning for due process purposes does not require foreseeability of the precise forum; it is generally enough that the conduct is obviously criminal and that prosecution by some sovereign is foreseeable.

## Conclusion

The Second Circuit held that § 959(b)(2) reaches foreign drug trafficking conducted on U.S.-registered aircraft outside U.S. territory, does not require proof that the defendant knew of the aircraft’s U.S. registration, and satisfies due process where the conduct is tied to U.S. instrumentalities and is plainly criminal.


United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016)