author: CHIN, Circuit Judge:

text:
    Rick HARRISON, John Buckley, III, Margaret Lopez, Andy Lopez, Keith Lorensen, Lisa Lorensen, Edward Love, Robert McTureous, David Morales, Gina Morris, Martin Songer, Jr., Shelly Songer, Jeremy Stewart, Kesha Stidham, Aaron Toney, Eric Williams, Carl Wingate, Tracey Smith, as personal representative of the Estate of Rubin Smith, Plaintiffs-Appellees, v. REPUBLIC OF SUDAN, Defendant-Appellant, Advanced Chemical Works, AKA Advanced Commercial and Chemical Works Company Limited, AKA Advanced Training and Chemical Works Company Limited, Accounts & Electronics Equipments, AKA Accounts and Electronics Equipments, et al., Defendants, National Bank of Egypt, Credit Agricole Corporate and Investment Bank, Respondents.
    Docket No. 14-121-cv
    August Term 2015
    United States Court of Appeals, Second Circuit.
    Argued: March 11, 2016
    Decided: September 22, 2016

      Andrew C. Hall (Roarke Maxwell, on the brief), Hall, Lamb and Hall, P.A., Miami, Florida, for Plaintiffs-Appellees.
    Christopher M. Curran (Nicole Erb, Claire A. DeLelle, on the brief), White & Case LLP, Washington, D.C., for Defendant-Appellant.
    David S. Jones, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for the United States of America as Amicus Curiae.
    Before: LYNCH and CHIN,.Circuit Judges, and KORMAN, District Judge.

      The Honorable Edward R, Korman, United ' States District Judge for the Eastern District of New York, sitting by designation.

   On Petition for Rehearing

CHIN, Circuit Judge:

On September 23, 2015, we affirmed three orders of the United States District Court for the Southern District of New York (Torres, /,) directing certain banks to turnover assets of defendant-appellant Republic of Sudan (“Sudan”) to satisfy a judgment entered in favor of plaintiffs against Sudan in the United States District Court for the District of Columbia (the “D.C. District Court”), in the amount of $314,705,896. Sudan petitions for panel rehearing or rehearing en bane, supported by the United States of America, as ami-cus curiae.

After further briefing and argument, upon due consideration, we adhere to our decision to affirm. The petition is DENIED to the extent it seeks panel rehearing.

BACKGROUND

The facts and procedural history are set forth in our September 23, 2015 opinion, familiarity with which is assumed. See Harrison v. Republic of Sudan, 802 F.3d 399 (2d Cir. 2015) (the “Panel Opinion”). We summarize the background as follows:

This case arises from the bombing of the U.S.S. Cole in the port of Aden, Yemen, in 2000. Sailors and spouses of sailors injured in the explosion brought suit against Sudan in the D.C. District Court under the FSIA, 28 U.S.C. §§ 1130, 1602 et seq., alleging that al Qaeda was responsible for the attack and that Sudan had provided material support to al Qaeda.

The action was commenced in October 2010, and, at plaintiffs’ request, the Clerk of the D.C. District Court served the summons and complaint on Sudan in November 2010 by mailing the papers to the Minister of Foreign Affairs of Sudan via the Sudanese Embassy in Washington, D.C. The papers were sent via registered mail, return receipt requested to:

Republic of Sudan
Deng Alor Koul
Minister of Foreign Affairs
Embassy of the Republic of Sudan
2210 Massachusetts Avenue NW
Washington, DC 2008

As represented by plaintiffs, Deng Alor Koul was the Minister of Foreign Affairs of Sudan at the time.

On November 17, 2010, the Clerk of Court entered a Certificate of Mailing certifying that the summons and complaint were sent via domestic certified mail to the “head of the ministry of foreign affairs,” via the Sudanese Embassy in Washington, D.C., and that the return receipt was returned to the Clerk of Court and received on November 23, 2010. No attempt was made to serve Sudan by mail to the address of the Ministry of Foreign Affairs in Khartoum, the capital. Sudan failed to serve an answer or other responsive pleading within sixty days after plaintiffs’ service, see 28 U.S.C. § 1608(d), and the Clerk of Court thus entered a default against Sudan.

On March 30, 2012, after a hearing, the D.C. District Court (Lamberth, J.) entered a default judgment against Sudan in the amount of $314,706,896, Harrison v. Republic of Sudan, 882 F.Supp.2d 23, 51 (D.D.C. 2012), and found, inter .alia, that service on Sudan had been proper,- id. at 28. At the request of plaintiffs, on April 20, 2012, the Clerk of the Court mailed a copy of the default judgment by registered mail, return receipt requested, to Sudan’s Minister of Foreign Affairs, via the Sudanese Embassy in Washington, D.C. While it does not appear that the receipt was returned, plaintiffs submitted proof that the mailing was delivered.

The judgment was thereafter registered in the Southern District of New York. In December 2013 and January 2014,- the Southern District issued three turnover orders, directing certain banks to turnover assets of Sudan to plaintiffs. It was only after the last of these three turnover orders was entered that Sudan finally filed a notice of appearance, on January 13, 2014. The same day, Sudan appealed the turnover orders to this Court.

In affirming the turnover orders, we held that service of process on the Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C., was sufficient to meet the requirements of the FSIA. Harrison, 802 F.3d at 406. We also held that the District Court did not err in issuing the turnover' orders without first obtaining a license from the Treasury Department’s Office of Foreign Assets Control (“OFAC”) or a Statement of Interest from the Department of Justice. Id. at 407.

On October 7, 2015, Sudan filed this petition for panel rehearing or rehearing en banc. Although it had not appeared in the earlier proceedings, the United States filed an amicus brief in support of the petition on November 6, 2015. After further briefing, we heard argument on March 11, 2016. We now deny the petition to the extent it seeks panel rehearing.

DISCUSSION

Sudan and the United States argue that the Panel Opinion misinterprets § 1608(a)(3) of the FSIA and puts the United States in violation of its obligations under the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227 (entered into force in United States Dec. 13, 1972) [hereinafter “Vienna Convention”]. In its reply brief, Sudan also makes the factual argument that the summons and complaint were not actually delivered to the embassy. Finally, as to the issue of the requirement of an OFAC license, the United States argues that the FSIA does not override the requirement of an OFAC license. We address each of these issues in turn.

1. Interpretation of § 1608(a)(3)

Sudan and the United States argue that the Panel Opinion incorrectly interprets § 1608(a)(3) of the FSIA. We acknowledge that the statutory interpretation question presents a close call, and that the language of § 1608(a)(3) is not completely clear. Nonetheless, for the reasons discussed below, we believe, as a matter of statutory construction, that the better reading of the statute favors plaintiffs’ position. Accordingly, we adhere to our prior decision.

A. The Plain Language

The “starting point in statutory interpretation is the statute’s plain meaning, if it has one.” United States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000). Section 1608(a)(3) of the FSIA reads: “Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state ... by sending a copy of the summons and complaint and a notice of suit ... to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. § 1608(a)(3).

On its face, the statute does not specify a location where the papers are to be sent; it specifies only that the papers are to be addressed and dispatched to the head of the ministry of foreign affairs. Nothing in § 1608(a)(3) requires that the papers be mailed to a location in the foreign state, or indeed to any particular address, and nothing in the statute precluded the method chosen by plaintiffs. A mailing addressed to the minister of foreign affairs via Sudan’s embassy in Washington, D.C., was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person. Plaintiffs literally complied with the statute—they sent a copy of the summons and complaint addressed to the head of the ministry of foreign affairs of Sudan.

The statute does not specify that the mailing be sent to the head of the ministry of foreign affairs in the foreign country. If Congress had wanted to require that the mailing be sent to the minister of foreign affairs at the principal office of the ministry in the foreign country, it could have said so—but it did not. See Burrage v. United States, — U.S. -, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014) (“The role of this Court is to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy.’ ”) (quoting Commissioner v. Lundy, 516 U.S. 235, 252, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996)); Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 176, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (rejecting argument that aiding and abetting liability existed because Congress did not use words “aid” and “abet” in statutory text and noting that “Congress knew how to impose aiding and abetting liability when it chose to do so”). In § 1608(a)(4), for example, Congress specified that the papers be mailed “to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services,” for transmittal to the foreign state “through diplomatic channels.” 28 U.S.C. § 1608(a)(4) (emphasis added).

The United States argues that the FSIA’s service provisions require strict compliance, and that mailing the papers to “the foreign minister at a place other than the foreign ministry” is not authorized by the statute. Amicus Br. of the United States at 3. The United States argues that “[t]he most natural understanding of [the statute’s] text is that the mail will be sent to the head of the ministry of foreign affairs at his or her regular place of work—i.e., at the ministry of foreign affairs in the state’s seat of government.” Id. at 2. This argument is unpersuasive, as it would require us to read thé words “at his or her regular place of work” or “at the state’s seat of government” into the statute. See Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009) (courts must “ordinarily resist reading words or elements into a statute that do not appear on its face”) (quoting Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997)).

The United States argues that our reading of § 1608(a)(3) is undermined by other provisions in the statute. It argues that because the FSIA permits the use of an authorized agent only in the context of service under § 1608(b)(2)—the provision that deals with service on foreign state agencies and instrumentalities—we should infer that “Congress did not intend to allow service on a foreign state via delivery to any entity that could, by analogy, be considered the foreign state’s officer or agent, including the state’s embassy.” Ami-cus Br. of the United States at 3. This argument rests on the premise that the Panel Opinion requires an embassy to act as an agent of a foreign state. We did not so hold, and, to the extent there is any doubt, we now clarify.

We do not hold that an embassy is an agent for service or a proxy for service for a foreign state. There is a significant difference between serving process on an embassy, and mailing papers to a country’s foreign ministry .via the embassy. Here, the summons and complaint were addressed to the Sudanese Minister of Foreign Affairs, by name and title, at the Sudanese Embassy. The embassy accepted the papers, signing for them and sending back a return receipt to the Clerk of Court. The embassy could have rejected the mailing, but instead it accepted the papers and then explicitly acknowledged receipt. Accordingly, the papers were not served on the embassy as a proxy or agent for Sudan, but they were instead mailed to the Minister of Foreign Affairs, in the most natural way possible—addressed to him, by name, via Sudan’s embassy.

In short, while the language of the statute is not wholly unambiguous, we believe that the better reading is. that it did not require service on the foreign minister at his or her regular place of work or in the state’s seat of government. Hence, service on the foreign minister via the embassy was not inconsistent with the wording of the statute.

B. Legislative History

We turn to the legislative history to see whether it sheds light on the statutory interpretation question.

As we noted in the Panel Opinion, while the 1976 House Judiciary Committee Report makes clear that the statute does not permit service by “the mailing of a copy of the summons and complaint to a diplomatic mission of the foreign state,” see H.R. Rep. No. 94-1487, at 26 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6626, it does not address the question of mailing the papers to .the minister of foreign affairs via or care of an embassy. The Report provides,

Special note should be made of two means which are currently in use in attempting to commence litigation against a foreign state.... A second means, of questionable validity, involves the mailing of a copy of the summons and complaint to a' diplomatic mission of the foreign state. Section 1608 precludes this method so as to avoid questions of inconsistency with section 1 of article 22 of the Vienna Convention on Diplomatic Relations, 23 UST 3227, TIAS 7502 (1972), which entered into force in the United States on December 13, 1972. Service on an embassy by mail would be precluded under this bill. See 71 Dept, of State Bull. 458-59 (1974).

H.R. Rep. 94-1487, at 26.

As we noted in the Panel Opinion, the report fails to make the distinction at issue in the instant case, between “[sjervice on an embassy by mail,” id. (emphasis added), and service on a minister or foreign affairs via or care of an embassy. The legislative history does not address, any more than does the statutory text, whether Congress intended to permit the mailing of service to a foreign minister via an embassy. What it does make clear, however, is that Congress was concerned about the interaction of this provision and Article 22 of the Vienna Convention. Accordingly, we must consider the Vienna Convention, which we discuss below.

C. Judicial Interpretation.

Before turning to the Vienna Convention, we consider the case law on the statutory interpretation issue.

As we noted in the Panel Opinion, we are not alone in our reading of § 1608(a)(3). In Wye Oak Technology, Inc. v. Republic of Iraq, the Eastern District of Virginia held that “Section (a)(3) does not impose a requirement that an. otherwise proper service package must be delivered to a particular destination.” No. 1:09cv793, 2010 WL 2613323, at *5 (E.D. Va. June 29, 2010), aff'd on other grounds, 666 F.3d 205 (4th Cir. 2011). There, the court held, that service, via an embassy is sufficient,to satisfy the FSIA as long as the service is directed to the .Minister of Foreign Affairs. Id. at *5-6. The Eastern District of Virginia also so held in Rux v. Republic of Sudan, 2005 WL 2086202, at *16 (“The text of § 1608(a)(3) does not prohibit service on the Minister of Foreign Affairs at an embassy address. Indeed, the statute does not prescribe -the place of service, only the person to whom process must be served.”). It is true, as Sudan argues, that these were district court opinions, but Sudan has not cited any case, district court or otherwise, holding that the mailing of papers addressed to the minister of foreign affairs via an embassy does not comply with the statute.

None of the cases relied on by Sudan or the United States undermines our reading of § 1608(a)(3). In four of the cases, the plaintiffs served the papers on the embassy or the ambassador, without addressing them to the minister of foreign affairs. See Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 28-29 (D.C. Cir. 2015) (service package addressed to embassy); Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737, 741 (7th Cir. 2007) (no record of service but counsel submitted affidavit stating document had been served “on the embassy in Washington, D.C.”); Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 253 (7th Cir. 1983) (service package addressed to ambassador); Ellenbogen v. The Cana-dim Embassy, No. Civ.A. 05-01553JDB, 2005 WL 3211428, at *2 (D.D.C. Nov. 9, 2005) (service package addressed to embassy). Consequently, those plaintiffs did not comply with the statute.

In another case, we interpreted a different provision of the FSIA, § 1608(b)(2), and held that persons entitled to diplomatic immunity are not proper agents for service under the FSIA. Tachiona v. United States, 386 F.3d 205, 222 (2d Cir. 2.004) (holding that § 1608(b)(2) does not authorize service on foreign officials present in United States as agents for a private political party). Tachiona did not address the issue before us. In two other cases, the opinions do not say to whom the papers were addressed. See Lucchino v. Foreign Countries of Brazil, S. Korea, Spain, Mexico, & Argentina, 631 F.Supp. 821, 826 (E.D. Pa. 1986); 10 D 6262 Realty Corp. v. United Arab Emirates Gov’t, 447 F. Supp. 711 (S.D.N.Y. 1978).

Section 1608(a)(3) explicitly provides that service on a foreign sovereign must be “addressed and dispatched by the clerk of the court to the head of,the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. § 1608(a)(3) (emphasis added). Cases involving mailings not so addressed are not controlling. We- adhere to our conclusion that the plain language of § 1608(a)(3) does not foreclose the plaintiffs’ method of service."

II. The Vienna Convention

Sudan and,the United States contend that the Panel Opinion places the United States in violation of the Vienna Convention. They contend that the Panel Opinion will complicate international relations by subjecting the United States (and other countries) .to service of process via any of its diplomatic missions throughout the world, despite its long-standing policy to refuse such service. As a preliminary matter, we note that these arguments were not properly raised in Sudan’s initial briefs. Nonetheless, we exercise our discretion to consider the arguments, and we reject them.

The FSIA is the sole basis for obtaining jurisdiction over a foreign state in the courts of the United States. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). As noted above, the “legislative history of the FSIA demonstrates unequivocally that the Act was not intended to affect the immunity of ‘diplomatic or consular representatives,’ ” that was established under the Vienna Convention and customary international law. Tachiona, 386 F.3d at 222-23 (quoting H.R. Rep. 94-1487, at 21). “Under the terms of [the Vienna Convention], the United States, in its role as a receiving state of foreign missions, is obligated to protect and respect the premises of any foreign mission located within its sovereign territory.” Bennett v. Islamic Republic of Iran, 604 F.Supp.2d 152, 159 (D.D.C. 2009), aff'd, 618 F.3d 19 (D.C. Cir. 2010).

The Panel Opinion does not conflict with the Vienna Convention. The Vienna Convention provides that “[t]he premises of the mission shall be inviolable,” and that “[a] .diplomatic agent shall ... enjoy immunity from [the host state’s] civil and administrative jurisdiction.” Vienna Convention, arts. 22, 31; see also H.R. Rep. 94-1487, at 26 (“Service on an embassy by mail would be precluded under this bill.”). We acknowledge that these provisions preclude service of process on an 'embassy or diplomat as an agent of a foreign government, as there would be a breach of diplomatic immunity if an envoy were subjected to compulsory process. See Tachiona, 386 F.3d at 222 (noting that “the inviolability principle precludes service of process on a diplomat as agent of a foreign government”); 40 D 6262 Realty Corp., 447 F.Supp. at 712 (holding that the FSIA’s legislative history makes clear that service by mail on an embassy is precluded under the Act). Accordingly, service on an embassy or consular official would be improper. But that is not what happened here. Rather, process was served on the Minister of Foreign Affairs at the foreign mission and not on the foreign mission itself or the ambassador. The papers were specifically addressed to the Minister of Foreign Affairs via the embassy, and the embassy sent back a return receipt acknowledging receipt of the papers.

The United States explains that it “consistently rejects attempted service via direct delivery to a U.S. embassy abroad. When a foreign court or litigant purports to serve the United States, through an embassy, the embassy sends a diplomatic note to the foreign government indicating that the United States does not consider itself to have been served properly.” Amicus Br. of the United States at 6. Our holding does not affect this policy. We do not preclude the United States (or any other country) from enforcing a. policy of refusing to accept service via its embassies. We have previously recognized that “[w]ere the United States to adopt exceptions to the inviolability of foreign missions here, it would be stripped of its most powerful defense, that is, that international law precludes the nonconsensual entry of its missions abroad.” 767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire to United Nations, 988 F.2d 295, 300-01 (2d Cir. 1993). The United States may continue to instruct its embassies to follow this protocol, and so may any other country with a foreign diplomatic embassy. Nothing about our decision affects the ability of any state to refuse to accept service via its embassies.

Here, Sudan did not elect to follow any such policy. It did not reject the service papers, as it could have done easily, but accepted them. In these circumstances, where plaintiffs mailed the documents addressed to the Sudanese Minister of Foreign Affairs via the embassy, and the embassy explicitly acknowledged receipt of the documents, the requirements of the statute were met.

Significantly, the Vienna Convention provides that a mission may “consent” to entry onto its premises. Section 1 of Article 22 of the Convention provides that: “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” Vienna Convention, art. 22 (emphasis added). Here, the Sudanese Embassy’s acceptance of the service package surely constituted “consent.” Instead of rejecting the service papers, Sudan accepted them and then, instead of returning them, it explicitly acknowledged receiving them. These actions, we conclude, constitute consent.

The Vienna Convention “recognized the independence and sovereignty of mission premises that existed under customary international law.” 767 Third Ave. Assocs., 988 F.2d at 300. An important reason for the inviolability of the embassy premises is that the embassy is, to some degree, an extension of the sovereignty of the sending state. See United States v. Gatlin, 216 F.3d 207, 214 n.9 (2d Cir. 2000). To send officers into the embassy to serve papers would thus be akin to sending officers into the sovereign territory of the sending state itself. There is nothing offensive, however, about mailing a letter into the sovereign territory of a foreign state. Indeed, that is the very procedure that Sudan and the State Department urge is the preferred and required practice. We therefore find it difficult to understand how mailing a letter to the Foreign Minister of a country in care of that country’s embassy in Washington—particularly given that the embassy remains free to refuse delivery if it so chooses—can be considered a grave insult to the “independence and sovereignty” of the embassy’s premises.

Indeed, the embassy is extended somewhat less sovereignty than the actual territory of the sending state. See McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir. 1983) (“A United States embassy, however, remains the territory of the receiving state, and does not constitute territory of the United States.”); see also Jordan J. Paust, Non-Extraterritoriality of ‘Special Territorial Jurisdiction’ of the United States: Forgotten History and the Errors of Erdos, 24 Yale J. Int’l L. 305, 312 (1999) (“[A] U.S. embassy in foreign state territory is not U.S. territory and is not within the territorial jurisdiction of the United' States, any more than a foreign embassy within the United States is foreign territory or within the territorial jurisdiction of a foreign state.”). While the precise degree to which the sovereignty of the embassy is less than a state’s control over its own territory is subject to debate, it is evident that an embassy is not more sovereign than the territory of the sending state itself.

It is with some reluctance that we diverge from the Executive Branch’s interpretation of the Vienna Convention, and of the potential effect of the Convention on the interpretation of the FSIA. It is appropriate to give the government’s interpretation of the Vienna Convention “great weight”—and we do—but the State Department’s views are “not conclusive.” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982). For the reasons stated above, we do not find those views persuasive.

III. The Factual Argument

In its reply in support of its petition for rehearing, Sudan argues that the evidence does not support a finding that the mailing was accepted by Sudan or delivered to the Sudanese Minister of Foreign Affairs. It argues that the signatures on the return receipt are illegible and it makes a factual argument that the package never reached the embassy.

Sudan’s factual challenge to the service of process comes too late, for three independent reasons. First, Sudan raises the factual arguménts for the first time on appeal. “[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” In re Nortel Networks Corp. Sec. Utig., 539 F.3d 129, 132 (2d Cir. 2008) (quoting Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006)).

Second, the factual challenge to service requires factfinding. “[F]actfinding is thg basic responsibility of district courts, rather than appellate courts, and ... the Court of Appeals should not ... resolve[ ] in the first instance [a] factual dispute which ha[s] not been considered by the District Court.” DeMarco v. United States, 415 U.S. 449, 450 n.*, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974). The factual challenge should have been raised during the five years that the case was pending in the district courts.

Third, even on appeal, Sudan did not raise the factual challenge until its reply brief in support of its petition for rehearing. It did not raise the issue in its briefing of the main appeal or in its initial submission on this petition for rehearing. See Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (“Arguments may not be made for, the first time in a reply brief.”).

Accordingly, the factual challenge is not properly before us.

IV. The Requirement of an OFAC License

The United States also seeks to clarify the Panel Opinion with respect to when a license from OFAC is required. In the Panel Opinion, we held that the District Court did not err in issuing turnover orders without first obtaining either an OFAC license or a Statement of Interest from the Department of Justice. See Harrison, 802 F.3d at 406-07. This holding was based on the United States’ position in previous Statements of Interest that § 201(a) of the Terrorism Risk Insurance Act (“TRIA”), Pub. L. No. 107-297, 116 Stat. 2322, 2337 (codified at 28 U.S.C. § 1610 note), permits a 28 U.S.C. § 1605A judgment holder to attach assets that have been blocked pursuant to certain economic sanctions laws without obtaining an OFAC license. The Panel Opinion included language, however, that may have suggested that § 1610(g) of the FSIA might permit a person holding a judgment under § 1605A to attach blocked assets without an OFAC license. Harrison, 802 F.3d at 407-08. This is not the case and thus we now clarify our ruling.

Section 1605 of the FSIA creates exceptions to the general blanket .immunity of foreign states from the jurisdiction of U.S. courts, including the “terrorism exception,” 28 U.S.C. § 1605A, which Congress added to the FSIA in 1996 to “give American Citizens an important economic and financial weapon against ... outlaw states” that sponsor terrorism. H.R. Rep. No. 104-383, at 62 (1995). This exception allows courts to hear claims against foreign states designated by the State Department as “state sponsors] of terrorism.” See Calderon-Cardona v. Bank of N.Y. Mellon, 770 F.3d 993, 996 (2d Cir. 2014).

The TRIA was enacted to aid victims of terrorism in satisfying judgments against foreign sponsors of terrorism. Section 201(a) of the TRIA, which governs post-judgment attachment in some terrorism cases, provides, in relevant part:

Notwithstanding any other provision of law ..., in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under section 1605A or 1605(a)(7) (as such section was in effect on January 27, 2008) of title 28, United States Code, the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such -terrorist party has been adjudged liable.

TRIA § 201(a) (codified at 28 ' U.S.C. § 1610 note) (emphasis added).

Sudanese, assets in the United States are subject to such a block, pursuant to sanctions that began with Executive Order 13067 in 1997 and are now administered by OFAC and codified at 31 C.F.R. Part 538. Ordinarily, unless a plaintiff obtains a license from OFAC, he is barred from attaching assets that are frozen under such sanctions regimes. The Panel Opinion held that, based on previous statements of interest made by the United States, blocked assets that are subject to the TRIA may be distributed without a license from OFAC. Harrison, 802 F.3d at 408-09.

The Panel Opinion framed the issue, however, as “whether § 201(a) of the TRIA and § 1610(g) of the FSIA, which authorize the execution of § 1605A judgments against state sponsors of terrorism, permit a § 1605A judgment holder to attach blocked Sudanese assets without a license 'from- OFAC. Id. at-407-08.

The Panel Opinion should not have included the reference to § 1610(g) of the FSIA. Section 1610(g)(2) of the FSIA, while providing that certain property “shall not be immune from attachment,” does not contain the TRIA’s same broad “notwithstanding any other provision of law” language. Therefore, it does not override other applicable requirements, such as the requirement of an OFAC license before the funds may be transferred. To be clear, when the TRIA does not apply and the funds at issue are attachable by operation of the FSIA alone, an OFAC license is still required.

In this case, plaintiffs obtained a terrorism judgment from the D.C. District Court pursuant to § 1605A of the FSIA. The Southern District of New York then issued three turnover orders. The first two orders specified that they were issued pursuant to 28 U.S.C. § 1610(g) but did not mention the TRIA. Only the third order specified that assets were “subject to turnover pursuant to § 201 of the Terrorism Risk Insurance Act of 2002.” Joint App. at 76. While the district court did not explicitly discuss whether the funds at issue in the December 12 and 13, 2013 orders were subject to turnover pursuant to the TRIA, based on our review of "the record, which includes the complaint and judgment in the D.C. District Court proceedings, and the turnover petition and orders in the proceedings below, we coneludé that the funds were subject to turnover-pursuant to the TRIA. Plaintiffs have “obtained a judgment against a terrorist party on a claim based . upon an act ' of terrorism,”. the blocked assets, are the .assets of that terrorist party, and, accordingly, those assets “shall be subject to execution or attachment in aid of execution in order to satisfy [plaintiffs’] judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.” See TRIA § 201(a) (codified at 28 U.S.C. § 1610 note). Because the funds at issue in all three turnover orders were subject to turnover pursuant to the TRIA, plaintiffs were not required to obtain an OFAC license before seeking distribution.

CONCLUSION

For the foregoing reasons, the petition, to the extent it seeks panel rehearing, is DENIED.

      . Nearly a year and a half later, after this appeal had been argued and while the appeal was pending, Sudan made a Rule 60(b) motion in the D.C. District Court to set aside the default judgment. Motion to Vacate Memo-raqdum & Opinion, Harrison v. Republic of Sudan, No. 1:10-cv-01689-RCL (D.D.C. June 14, 2015), ECF No. 55. That court has not yet decided that motion.

      . As we discuss in the Panel Opinion, the FSIA provides for four methods of service. Harrison, 802 F.3d at 403. The method set forth in § 1608(a)(3) is the method at issue in this case.

      . An embassy is a logical place to direct a communication intended to reach a foreign country. As explained by the United States State Department, "an embassy is the nerve center for a country's diplomatic affairs within the borders of another nation, serving as the headquarters of the chief of mission, staff and other agencies.” Diplomacy 101, What Is a U.S. Embassy?, http://diplomacy.state.gov/ discoverdiplomacy/diplomacy 101/places/ 170537.htm; see also Rux v. Republic of Sudan, No. Civ.A. 2:04CV428, 2005 WL 2086202, at *16 (E.D. Va. Aug. 26, 2005), affd on other grounds, 461 F.3d 461 (4th Cir. 2006) (underscoring the "inherent reliability and security associated with diplomatic pouches,” which, "unlike the United States Postal Service, DHL, or any other commercial carrier, is accorded heightened protection under international law to ensure safe and uncompromised delivery of documents between countries” (citing Vienna Convention, art. 27)). We do not suggest that service could be made on a minister of foreign affairs via other offices in the United States or another country maintained by the country in question, such as, e.g., a consular office, the country’s mission to the United Nations, or a tourism office.

      . In its reply brief on its petition for rehearing, Sudan argues for the first time in this nearly six-year old litigation that in fact the embassy did not receive the papers. We discuss this issue below.


source: Caselaw Access Project

author: REENA RAGGI, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Troy HARRIS, AKA Gunny, Defendant-Appellant, Tracy Harris, AKA Shorty, AKA Tray, Yvonne Daniels, AKA Zip, Samuel Henley, AKA Pop, AKA Sam, William Cole, AKA Will, Michael Chaney, AKA Mike, AKA Mick, James Broadway, AKA Pork, Claude Davis, AKA Cahuna, Bobby Wainwright, Sharieff Grant, Louis Nieves, AKA Louis Ramos, Karen Martinez, AKA Jazz Torres, Tony McAfee, AKA TR, AKA LT, and Lorraine Garcia, AKA Chula, Defendants.
    Docket No. 15-1774-cr
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: August 29, 2016
    Decided: September 22, 2016

      Matthew W. -Brissenden, Matthew W. Brissenden, P.C., Garden City, New York, for Defendant-Appellant.
    Jennifer L. Gaohiri, Assistant United States Attorney (Thomas McKay, Karl N. Metzner, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.
    Before: NEWMAN, CALABRESI, RAGGI, Circuit Judges.
   REENA RAGGI, Circuit Judge:

Following a guilty plea, defendant Troy Harris was convicted in 2001 in the United States District Court for the Southern District of New York (Robert P. Patterson, Judge) of conspiracy to traffic in narcotics, see 21' U.S.C. §§ 841(b)(1)(A), 846, for which crime he was sentenced to 188 months’ imprisonment and five years’ supervised release. See United States v. Harris, No. 00-CR-00105 (RPP) (S.D.N.Y. Feb. 14, 2001), ECF No. 191. Harris now appeals from a judgment of the same court (Loretta A. Preska, Chief Judge) entered on May 14, 2015, revoking his supervised release and imposing an additional prison term of 27 months based on a finding that he had engaged in new criminal conduct while on federal supervision, specifically, assault, as proscribed by New York Penal Law § 120.00(1), and narcotics distribution, in violation of New York Penal Law § 220.39. Harris challenges both grounds for revocation.

As to narcotics trafficking, Harris does not dispute the alleged conduct. Instead, for the first time on appeal, he challenges the district court’s statutory authority to revoke supervision based on conduct that had already prompted it to modify the terms' of his supervision. Harris argues that 18 U.S.C. § 3583(e) confers modification and revocation authority in the disjunctive, so that once a court exercises one (here, modification) in response to particular conduct, it cannot exercise the other (revocation) with respect to that same conduct.

As to assault, Harris argues that the district court impermissibly considered victim hearsay in making its preponderance finding that he engaged in such new criminal conduct while on federal supervision.

Because we conclude that both arguments fail on the merits, we affirm the challenged revocation judgment.

1. Background

Harris began serving the five-year supervision component of his 2001 federal sentence on March 18, 2011. That supervision was subject to certain conditions, three of which are relevant here: that Harris (1) not commit another federal, state, or local crime; (2) truthfully answer all probation inquiries; and (3) notify his probation officer ten days prior to any change in residence.

A.Initial Noncompliance Report: Assault

On August 26, 2014, three years into Harris’s supervision term,' the United States Probation Department for the Southern District of New York (“Probation”) filed a report notifying Judge Patterson that Harris had been arrested by the New York City Police Department (“NYPD”) based on a recent complaint filed by a woman who stated that Harris had “struck her in the face with a closed fist after she confronted him for smacking her on her buttocks during an event they were attending.” App’x 26. Probation,¡reported that the offense—third-degree assault, see N.Y. Penal Law § 120.00(1)— represented a Class A misdemeanor and a Grade C violation of supervised release. Nevertheless, because the state case had been dismissed when the complainant declined to press criminal charges, Probation recommended that no action be taken with respect to Harris’s federal supervision. The district court accepted the recommendation the following day, August 27, 2014.

B. Second Noncompliance Report: Narcotics Trafficking

Less than three weeks later, on September 11, 2014, Probation filed a second noncompliance report notifying Judge Patterson of Harris’s September 2, 2014 NYPD arrest, this time for third-degree criminal sale of a controlled substance, see N.Y. Penal Law § 220.39, based on police observations of Harris exchanging crack cocaine for money. Probation recommended, and Harris agreed to, a modification of supervision to add a search condition, which the district court ordered ‘on Séptember 15, 2014. •

C. Violation Warrant and Revocation Petition

Two months later, .on November 14, 2014, Probation determined that Harris was in violation of the supervision condition requiring that he provide advance notice of any change in residence. On that day, Probation conducted an unannounced visit to Harris’s reported residence, the apartment of his maternal aunt. Not only was Harris not present, but a search also revealed that he had “little to no belongings in the apartment.” App’x 57. When Probation reached Harris by phone, he stated that he was at. his uncle’s apartment. After some initial hesitation, he provided the building’s address but refused to identify the apartment number.

Judge Patterson was advised of these facts the same day, and promptly issued an arrest warrant based on four alleged violations of supervised release: (1) failure truthfully to answer Probation inquiries, (2) failure to notify Probation of a change in residence, (3) selling narcotics in violation of state law, and (4) committing third-degree assault in violation of state law. The United States Marshal executed the warrant and, produced Harris in court later that day. On consent, Harris was released pending a hearing on the violation charges, subject to additional supervision conditions of home detention and electronic monitoring.

On November 17, 2014, Probation formally petitioned for revocation of Harris’s supervised^ release based on, the four alleged violations. The petition advised that, insofar as. one of the violations involved possession of narcotics, revocation was mandatory under 18 U.S.C. § 3583(g). Further, because (1) Harris had pleaded guilty to a Class A felony, (2) the alleged narcotics offense constituted a Grade A supervision violation, and (3) Harris had a Criminal History Category of II, his recommended Guidelines sentencing range for that violation was 27 to 33 months’ imprisonment, see'U.S.S.G. § 7B1.4—ap-proximately half the statutory 5-year maximum, see 18 U.S.C. § 3583(e)(3). Probation explained that the other three allegations pertained to Grade C violations of supervision, which—given Harris’s Criminal History Category of II—corresponded to a recommended Guidelines sentencing range of 4 to 10 months’ imprisonment. See U.S.S.G. § 7B1.4. Probation recommended that Harris be sentenced to 4 months’ imprisonment, the low end of this lesser range, to be followed by an additional one-year term of supervised .release.

D. Revocation Hearing

In February 2015, Harris’s case was reassigned to Chief Judge Preska, who conducted a revocation hearing on the narcotics- and assault-based charges on April 2, 2015.

1. Government’s Motion To Admit Victim Hearsay Statements

At the outset, the government moved to allow out-of-court statements by the victim of the alleged assault to be admitted through three law enforcement witnesses: (1) NYPD Officer Efrain Ayala, who first responded to the victim’s 911 call on the night of the assault; (2) NYPD Detective Jose Chevere, who interviewed the victim two weeks later; and (3) United States Attorney’s Office Criminal Investigator Antoinette Guzman,.who interviewed the victim six months after the incident. The government stated that the victim herself refused to testify—notwithstanding receipt of a subpoena and an offer of appointed counsel and immunity—based on her professed fear of retaliation by Harris or his associates, all of whom continued to live in the victim’s neighborhood. It argued that this fear, coupled with the reliability of the victim’s statements, constituted good cause to conclude that the interest of justice did not require the victim’s appearance at the hearing. See Fed. R. Crim. P. 32.1(b)(2)(C).

The district court agreed. It credited the proffered fear based on the victim’s consistent expression of it, and concluded that Harris’s confrontation interest was entitled to little weight by comparison. Further,, it found the hearsay statements reliable because they bore overall consistency, the first one was made near the time of the assault- following ■ a 911 call, and the account was corroborated by the responding officer’s observations of physical injuries consistent with the reported assault.

2. Violation Findings

a. Narcotics Trafficking While on Supervision

In support of the narcotics trafficking violation, two police officers testified to witnessing Harris exchange drugs for money, and to recovering the exchanged drug packet, the contents of which tested positive for cocaine. The district court deemed this testimony credible and sufficient, by itself, to establish the charged violation. It also found the conclusion corroborated by further credited police and physician testimony establishing that, after arrest, Harris attempted to conceal another packet of cocaine still in his possession by ingesting it.

b. Assault While on Supervision

In support of the assault-based violation, law enforcement officials testified that on three occasions—the day of the assault, two weeks later, and six months thereafter—the victim recounted how, in the early morning hours of July 25, 2014, while she was dancing with a group of people, Harris smacked her hard on the buttocks. See App’x 209-10. When she verbally confronted Harris about that conduct, “he punched her in the mouth with a closed fist.” Id. at 210. The district court credited the victim’s hearsay accounts not only because of (1) their overall consistency, but also because (2) the victim, having called 911, had an incentive to be truthful; (3) responding Officer Ayala had personally observed the victim’s, “swollen and bruised lip with [a] laceration on the inside”; and (4) all three officers who spoke with the victim reported finding her credible. Id. at 211. Based on this evidence, the district court concluded that Harris’s commission of the assault while on supervision was proved by more than a “preponderance”; rather, the proof was “overwhelming.” Id. at 209.

In light of'the district court’s findings that Harris had committed the crimes of narcotics trafficking and assault while on supervision, the government moved to dismiss the remaining two violation charges, which motion the court granted at the conclusion of the hearing.

E. Revocation Judgment

On May 12, 2015, the district court revoked Harris’s supervised release and sentenced him to a total of 27 months’ imprisonment to be followed by an additional one year of supervised release. Harris, who is currently serving that prison * sentence, timely filed this appeal.

II. Discussion

A. Challenge to Court’s Statutory Authority

1. Standard of Review

Harris submits that, because the actions a court may take under 18 U.S.C. § 3583(e) are stated in the disjunctive “or,” the district court was not statutorily authorized to revoke his supervision based on the same conduct—narcotics trafficking—that had earlier prompted it to modi-fiy the conditidns of his supervision by adding a search condition. While ordinarily we review questions of statutory interpretation de novo, see United States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012), our review here is for plain error because Harris failed to assert the challenge in the district court, see Fed. R. Crira. P. 52(b); United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (holding that plain error will be identified only if (1) there is error; (2) that is clear or obvious, rather than subject to reasonable dispute; (3) that affects defendant’s substantial rights; and (4) that seriously impugns fairness, integrity, or public reputation of judicial proceedings); accord United States v. Rodriguez, 775 F.3d 533, 536 (2d Cir. 2014).

In .urging otherwise, Harris maintains that the error was preserved , when, at the conclusion of sentencing, he told the district court, “I would like to state, for the record, this is double jeopardy. I’m being punished twice for the same crime.” App’x 230. The argument fails because Harris now expressly disavows any double jeopardy claim, mounting a purely statutory challenge not raised below. See Appellant’s Br. 26. Further, he concedes that, if the statutory challenge was not preserved, plain error review applies. See id. at 17 n.7.

While we conclude that Harris’s statutory challenge was not preserved, the matter is of no import because, in any event, the claim fails at the first step of plain error analysis—that is, Harris fails to demonstrate error. Thus, his challenge fails even de novo review.

2. The Statutory Text and Context Do Not Support Construing Modification and Revocation as Mutually Exclusive ■ Actions

In considering de novo whether § 3583(e) authorizes a district court that has already modified supervision conditions in response to certain conduct to revoke supervised release based on the same conduct, we begin with the statute’s text because “we assume that the ordinary meaning of the statutory language accurately expresses the legislative purpose.” Marx v. Gen. Revenue Corp., — U.S. -, 133 S.Ct. 1166, 1172, 185 L.Ed.2d 242 (2013) (brackets and internal quotation marks omitted); see United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016) (“If the [statute’s] meaning is plain, the inquiry ends there.”). As Harris implicitly acknowledges, nothing in the text of § 3583(e) states that revocation following modification must be based on different conduct. See Appellant’s Br. 21-22 (noting issue “appears to remain an open. question”). Instead, he urges us to infer such a requirement from the statute’s use of the word “or” in § 3583(e)(3). He argues that the actions authorized in § 3583(e) thus operate only in the disjunctive, so that once a court modifies supervision conditions in response to certain conduct, it cannot then revoke supervised release based on the same conduct,. We are not persuaded.

Established canons of statutory construction “ordinarily suggest that terms connected by a disjunctive be given separate meanings.” Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979); see Loughrin v. United States, — U.S. -, 134 S.Ct. 2384, 2390, 189 L.Ed.2d 411 (2014) (observing that disjunctive “or” signals that “words it connects are to be given separate meanings” (internal quotation marks omitted)). This “serves to avoid interpretations that render statutory terms superfluous.” Mizrahi v. Gonzales, 492 F.3d 156, 164 (2d Cir. 2007). Superfluity, however, is not a concern here because the words “modify” and “revoke,” as used in § 3583(e), bear plainly different meanings—with quite different effects on liberty. Moreover, the different meanings obtain whether the actions are taken in response to the same or distinct conduct.

In any event, even when striving to ensure separate meanings, the disjunctive canon does not apply absolutely, particularly where “the context dictates otherwise.” Reiter v. Sonotone Corp., 442 U.S. at 339, 99 S.Ct. 2326; see Mizrahi v. Gonzales, 492 F.3d at 164 (refusing to conclude “simply from the use of the word ‘or’ that Congress has directly spoken to the precise question at issue,” because “rule that disjunctive phrases bear different meanings is general, not absolute” and, thus, courts should “consider how a disjunctive or conjunctive form fits into the statutory scheme as a whole” (internal quotation marks omitted)). The statutory context for use of the word “or” in § 3583(e) does not indicate Congress’s intent to preclude revocation based on conduct that earlier prompted modification of supervision conditions.

This conclusion is evident from the fact that § 3583(e)(2) modification does not require that a defendant be charged with a violation of—much less be found to have violated—any particular supervision condition. Compare Fed. R. Crim. P. 32.1(b) (requiring probable cause finding of supervision violation to pursue revocation of supervised release), with Fed. R. Crim. P. 32.1(c) (requiring hearing, but no specific violation charge, to pursue modification of supervision); see United States v. King, 608 F.3d 1122, 1130 (9th Cir. 2010) (distinguishing Rule 32.1(b) revocation proceeding from Rule 32.1(c) modification proceeding based on, inter aha, former’s violation-finding requirement). Rather, § 3583(e)(2) authorizes district courts to modify supervision conditions “at any time prior to the expiration or termination” of supervised release as warranted by the circumstances generally. 18 U.S.C. § 3583(e)(2)! By contrast, revocation can occur only, upon proof by a preponderance of the evidence that a charged condition of supervision has, in fact, been violated. See id. § 3583(e)(3). This statutory stnicture strongly signals Congress’s intent to distinguish the two actions—revocation and modification—not by demanding that they respond to different conduct, as Harris here urges, but rather, by the different charge and proof burdens assigned to each. See generally Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (stating that, “when ‘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 intentionally and purposely in the disparate inclusion or exclusion’ ” (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983))). Such a structure signals Congress’s intent, that the action causing a greater loss of liberty—revocation—cannot be taken unless and until a higher burden of proof is satisfied. But it does not signal Congress’s intent for modification and revocation to be mutually exclusive in responding to the same conduct.

Indeed, such a construction could render other provisions of 18 U.S.C. § 3583 inoperative or at least insignificant, contrary to the rule that courts must give effect to all of a statute’s provisions “so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 .(2009) (internal quotation marks omitted). Specifically, Harris’s urged construction, insofar as it would prohibit revocation in his case, would run afoul of § 3583(g)(1), which mandates revocation where, as here, a supervised defendant is found to have possessed a controlled ' substance. See 18 U.S.C. § 3583(g)(1). It would also undermine factors properly informing supervised release, such as deterrence of criminal activity and protection of the public from such activity by the defendant. See id. § 3583(c) (citing id. § 3553(a)(2)(B)-(C) among factors relevant to determining conditions of supervised release); see also id. § 3583(e) (providing for same factors to be considered in modifying or revoking supervised release).

Pursuant to these statutory obligations, a district court advised of a supervised defendant’s possible drug possession might well immediately modify supervision to impose additional conditions to increase both deterrence and protection. Then, upon actual proof of the prohibited possession, the district court would order the statutorily mandated revocation. Indeed, that is exactly what happened in this case, insofar as the district court first modified Harris’s supervision to add a search condition in response to the narcotics arrest, and then revoked supervision upon actual proof of narcotics distribution. For the district court, upon learning of Harris’s drug arrest, not to have modified Harris’s supervision with the added search condition would have compromised deterrence and protection. Had the court, after ordering modification, failed to revoke supervision upon actual proof of Harris’s narcotics distribution, it would have defied the statutory mandate of § 3583(g)(1).

Thus, when we consider § 3583(e)’s use of the disjunctive in the statutory context as a whole, we conclude that it cannot reasonably be construed, as Harris urges, to preclude district courts from revoking supervised release following modification whenever both actions are informed by the same conduct.

That conclusion finds further support in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). There, the Supreme Court held that, before § 3583(h) specifically codified the authority, § 3583(e)(3) effectively allowed a district court to impose an additional supervision term on a defendant following his completion of a prison term imposed on revocation. See id. at 712-13, 120 S.Ct. 1795. Recognizing that § 3583(e)(3) limited any prison term to the maximum period of supervision originally imposed, the Court observed that, “[i]f less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to § 3583(e)(2).” Id; at 712, 120 S.Ct. 1795 (emphasis added). In short, by thus recognizing the possibility for both extension and revocation, the Supreme Court did not construe the numbered subsections of § 3583(e) as mutually exclusive.

Harris characterizes this part of Johnson as dictum and emphasizes that Justices Kennedy and Thomas objected to this language in brief concurrences. See id. at 713-15, 120 S.Ct. 1795 (Kennedy, J., concurring); id. at 715, 120 S.Ct. 1795 (Thomas, J., concurring). The observation, however, only underscores that a six-justice majority (excluding Justice Scalia, who dissented from this aspect of the decision, see id. at 715-27, 120 S.Ct. 1795 (Scalia, J., dissenting)) deliberately chose to retain it. Thus, even if the statement is fairly characterized as dictum, we are obligated “ ‘to accord great deference to Supreme Court dicta,’ absent a change in the legal landscape.” Newdow v. Peterson, 753 F.3d 105, 108 n.3 (2d Cir. 2014) (quoting United States v. Colasuonno, 697 F.3d 164, 179 (2d Cir. 2012)).

Harris has demonstrated no such change, and certainly none warranting a plain error conclusion. See United States v. Wagner-Dano, 679 F.3d 83, 94 (2d Cir. 2012) (“‘The burden of establishing entitlement to relief for plain error is on the defendant claiming it.’ ” (brackets omitted) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004))). If anything, the post-Johnson landscape in this circuit suggests the contrary. See, e.g., United States v. Parisi, 821 F.3d 343, 347-48 (2d Cir. 2016) (holding that change of circumstances is not prerequisite to additional § • 3583(e)(2) modification); United States v. Vargas, 564 F.3d 618, 623-24 (2d Cir. 2009) (holding that, “even in the absence of a new violation,” district court may extend supervised release after prior revocation); see also id. at 624 n.6 (rejecting double jeopardy challenge to post-revocation ■ extension of supervision on ground that “ ‘imposition of a term of supervised release is not necessarily final,’ partly because a court ‘may lengthen a term up to the maximum authorized amount’ ” (quoting United States v. Pettus, 303 F.3d 480, 483 (2d Cir. 2002))).

In sum, on de novo review, we conclude that 18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision, conditions. Accordingly, Harris’s argument that the district court was not authorized to revoke his supervised release based on his proved narcotics trafficking violation fails on the merits.

B. Hearsay Challenge

Harris argues that the district court erroneously relied on victim hearsay statements in finding that, while on federal supervision, he committed the New York state crime of assault. Because revocation proceedings are not deemed part of a criminal prosecution, neither the Confrontation Clause nor the Federal Rules of Evidence strictly apply to out-of-court statements. See United States v. Carthen, 681 F.3d 94, 99-100 (2d Cir. 2012). Nevertheless, the Supreme Court has held that, in such proceedings, a defendant has “the right to confront and cross-examine adverse witnesses (unless the [court] specifically finds good cause for not allowing confrontation).” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). That right is protected by the Federal Rules of Criminal Procedure, which state that, at a revocation hearing, a defendant is entitled to “an opportunity to ... question any. adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C). We have explained that the “good cause” determination underlying an interest-of-justice analysis “requires the court to balance the defendant’s interest in confronting the declarant against the government’s reasons for not producing the [declarant] and the reliability of the proffered hearsay.” United States v. Carthen, 681 F.3d at 100 (alterations and internal quotation marks omitted). We review a district court’s Rule 32.1(b)(2)(C) ruling for abuse of discretion,- which encompasses both “clearly erroneous findings of fact and misapplications of the law.” United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006). Neither is evident here.

The district court found good cause for not allowing confrontation in (1) the assault victim’s professed fear of retaliation, and (2) the reliability of her statements to law enforcement officers. As to the first finding, Harris argues that the court initially misunderstood the government’s submission to' indicate that Harris had threatened the witness. Any such concern, however, was alleviated by the prosecutor’s clarification that the victim felt threatened by Harris, not that he had explicitly issued threats. Harris further speculates that the victim’s refusal to appear was animated more by her own criminal conduct than her fear of retaliation by him. But that conjecture is belied by record evidence that the government offered the witness full immunity .for self-dis*closed criminal conduct, as well as the assistance of counsel. Indeed, . the victim’s professed fear of retaliation by Harris was reasonable given that (1) part of the alleged assault—the punch in the face— could itself be viewed as retaliation for the victim’s complaint about the preceding smack to her buttocks, (2) the victim lived in the same neighborhood as Harris, and (3) none of their mutual neighbors had come to her assistance after the assault. This was sufficient to allow the district court to conclude that there was “a possibility” of reprisal if the victim were to testify against Harris. United States v. Jones, 299 F.3d 103, 113 (2d Cir. 2002); accord United States v. Carthen, 681 F.3d at 101 (recognizing that history of domestic violence provides good cause for declar-ant’s absence).

The district court’s finding that reliability was convincingly demonstrated here is supported by evidence that (1) the victim reported the assault in a 911 call, see Navarette v. California, — U.S. -, 134 S.Ct. 1683, 1689-90, 188 L.Ed.2d 680 (2014) (recognizing that possibility of tracing and identifying 911 callers provides “some safeguards against making false reports with immunity”); (2) Officer Ayala observed the victim’s lacerated lip within 24 hours of the' assault; and (3) the victim relayed consistent accounts of the assault—as well as her fear of reprisal—to each of the three testifying law enforcement officers, all of whom deemed her credible. See generally United States v. Jackson, 347 Fed.Appx. 701, 703 (2d Cir. 2009) (reasoning that “reliability of both victims’ hearsay accounts ... was so convincingly demonstrated as to preclude a finding of abuse in the decision to admit their statements” despite lack of domestic violence history and one victim’s recantation), cert. denied, 559 U.S. 968, 130 S.Ct. 1544, 176 L.Ed.2d 152 (2010). In challenging reliability, Harris points to the victimas consumption of alcohol in the hours prior to the assault. He was free to. argue that the district court should consider this factor in weighing her assault account, and fails to show that his ability to do so was meaningfully undermined by the victim’s failure to appear. In any event, the record indicates that the court considered the .victim’s consumption of alcohol in adjudicating the merits of the violation charge and explained why that factor did not undermine the reliability of her account.

Because Harris thus fails to show any abuse of discretion in the district court’s Rule 32.1(b)(2)(C) ruling, his hearsay challenge fails on the merits.

III. Conclusion

To summarize, we conclude as follows:

1. Title 18 U.S.C. § 3583(e)’s use of the disjunctive in identifying the actions a district court may take with respect to defendants serving terms of supervised release does not limit a court’s authority so as to preclude it from revoking supervised release after conduct is proved that, when reported, had prompted modification of supervision conditions. Thus, the court here was authorized to revoke Harris’s supervised release for proved drug trafficking pursuant to § 3583(e)(3), and as mandated by § 3583(g)(1), even though it had previously modified Harris’s supervision—upon first being advised of such possible trafficking—pursuant to § 3583(e)(2).

2. Because the district court properly balanced Harris’s confrontation interest against the assault victim’s reasons . for refusing to testify and the reliability of .her statements, as required for an interest-of-justice finding under Fed. R. Crim. P. 32.1(b)(2)(C), the court acted within its discretion in admitting the victim’s hearsay statements in determining that Harris, while on federal supervision, had committed a new state crime of assault.

The judgment of the district court revoking supervised release is, therefore, AFFIRMED. .

      . The district court subsequently reduced Harris’s prison term to 151 months pursuant to Amendment 706 to the Sentencing Guidelines, which provided for retroactive reduction of certain crack cocaine sentences.

      . Probation later clarified that the assault took place on July 25, 2014, and that the complaint was filed that same day.

      . The government had requested that, "in the interests of judicial economy,” the court rule on violations (3) and (4) before the govemment presented evidence on violations (1) and (2). App'x 64.

      . Section 3583(e) states as follows:'
      The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)-
      (1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the. modification of probation, if it is .satisfied that such action is warranted by the conduct of the defendant released and the interest of justice; '
      (2) extend a term of supervised release if less than the maximum authorized term was. previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant, to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
      (3) revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release ...; or
      (4) order the defendant to remain at his place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.
      18 U.S.C. § 3583(e).

      . Johnson explicitly abrogated this court's contrary conclusion in United States v. Koehler, 973 F.2d 132 (2d Cir. 1992). See Johnson v. United States, 529 U.S. at 698-99 & n.2, 120 S.Ct. 1795. Harris nonetheless maintains that Koehler's underlying rationale—that § 3583(e) applies disjunctively—survives Johnson. That reading does not accurately characterize the basis for our decision in Koehler. See United States v. Koehler, 973 F.2d at 135 (reasoning that, because " ‘[r]evoke generally means to cancel or rescind,’ ’’ revoked supervision term " ‘no longer exists’ ” and, therefore, “ 'revocation and extension options are by their very nature mutually exclusive’ ” (quoting United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992))). In any event, modification and revocation are not "by their very nature mutually exclusive.” Id.