Draft Extraterritoriality Paper

8/8/2019 Draft Extraterritoriality Paper

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Extraterritorial Application of United States Criminal Law: An Expression of

Western Concepts of Fairness and Due Process1

Trace L. Rabern, Esq.

The law provides generally that there is a presumption that Congress does not

intend a statute to apply outside of United States territory unless Congress expresses

otherwise. The limited exception to this presumption has become known as the

Bowman rule, which provides that there is no such presumption where the crime

defined in the statute is a crime against the United States, its property or personnel,

or where applying the presumption compromises the statute at hand (meaning,

makes it difficult if not impossible to effect). So only these crimes against the

government, as well those crimes which Congress has clearly and expressly stated

apply extraterritorially, apply outside the territory of the United States.

For examle, one of the laws that expressly applies extraterritorially is 18 U.S.C.

2332b, Acts of Terrorism Transcending National Boundaries. As to jurisdiction 18

U.S.C. 2332b provides:

(e) Extraterritorial jurisdiction. There is extraterritorial

Federal jurisdiction--

1 By Trace L. Rabern, Trace L. Rabern Attorney and Counselor at Law LLC, Santa Fe, New Mexico,and Adjunct Professor of Law, University of New Mexico School of Law. Ms. Rabern can bereached at [email protected].

This paper would not be possible without the brilliant analysis and mentorship of attorneyMarc Lowry, with Rothstein, Donatelli, Dahlsrom, Shoenburg, and Bienvenue,LLP, in Albuquerque,New Mexico.


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(1) over any offense under subsection (a), including any

threat, attempt, or conspiracy to commit such offense; and

(2) over conduct which, under section 3 [18 U.S.C. 3],

renders any person an accessory after the fact to an offense

under subsection (a).

and in addition also specifies:

(g) Definitions. As used in this section--

(1) the term "conduct transcending national boundaries"

means conduct occurring outside of the United States in

addition to the conduct occurring in the United States;

Most criminal statutes do not express the Congressional intent to apply

extraterritorially. As a result, conduct entirely outside the United States and not

involving the officials or property of the United States Government does not

constitute a violation of United States law.

Crime is ordinarily proscribed, tried and punished according to the laws of

the place where it occurs. This is necessary under our ideas of fairness--if I here in

New Mexico were expected to both know and comport with the law of Uganda on a

certain topic, and could be hauled to court and prison in Uganda for violating that

law, that seems unfair. The general and almost universal rule is that the character

of an act as lawful or unlawful must be determined wholly by the law of the country

where the act is done,American Banana Co. v. United Fruit Co., 213 U.S. 347, 356

(1909).


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American criminal law only applies beyond the geographical confines of the

United States under certain limited circumstances. These limited circumstances,

often referred to as the Bowman circumstances, include those laws that make it a

crime to act against the United States Government, its property, or personnel, or

where strictly intra-territorial application would make no sense. See United States v.

Bowman, 260 U.S. 94, 98 (1922).

Conversely, the presumption against extraterritorial application of jurisdiction

applies to crimes against private individuals or their property, like assaults, murder,

burglary, larceny, robbery, arson, embezzlement and frauds of all kinds. United States

v. Gatlin, 216 F.3d 207, 211 (2d Cir. 2000) (quoting United States v. Bowman, 260 U.S.

94, 98 (1922)).

The cases suggest the presumption against extraterritorial reach of a statute

applies with even more force when the accused is not a citizen of the United States,

who would be expected to know the law of the United States and conform to it.

I. Statutes Must Express The Intent to Apply Extraterritorially, Plus There Must

Be A Sufficient Nexus To Make That Application Comport With Both

International Norms, and Due Process

.

Statutes may be given extraterritorial application in very limited circumstances

if the nature of the law permits it and Congress intends it. United States v. Baker, 609

F.2d 134, 136 (5th Cir. 1980). Therefore, the Court must determine legislative

intent regarding the extraterritorial application of any given statute. See Lowenfeld,


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U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AMERICAN

JOURNALOF INTERNATIONALLAW880, 891-92 (1989) (asserting that the creation of

subject matter and personal jurisdiction over an alien defendant for an offense

committed overseas and not otherwise connected to the United States by forcibly

bringing him into the United States is not clearly within any constitution grant of

power to Congress, and in particular, . . . does not, as written, come within the

power to define and punish offenses against the law of nations).

The courts of no country will execute the penal laws of another. The

Antelope, 23 U.S. 30, 53-4 (10 Wheat. 66, 123) (1825). It is a long-standing

principle 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. Small v. United States, 544 U.S. 385, 388-89 (2005); Smith v. United States,

507 U.S. 197, 203 (1993); EEOC v. Arabian American Oil Co., 499 U.S. 244, 248

(1991);Argentine Republic v. Ameranda Hess Shipping, 488 U.S. 428, 440 (1989); Sale v.

Haitian Centers Council, Inc., 509 U.S. 155, 173 (1993); United States v. DeLeon, 270 F.

3d 90, 93 (1st Cir. 2001).

Statutes that do not state otherwise are presumed not to apply outside of the

United States. This canon of construction is a valid approach whereby unexpressed

congressional intent may be ascertained. It serves to protect against unintended

clashes between our laws and those of other nations which could result in


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international discord.Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168, 173 (3rd Cir.

2004) (citations omitted).

And moreover, it is even harder to overcome the presumption against

extraterritorial reach when the suspect in not a United States citizen: Although

there is no general bar against the extraterritorial application of our criminal laws to

American citizens, the Supreme Court has long recognized a presumption against such

applications. United States v. Kim, 246 F.3d 186, 188-189 (2d Cir. 2001) (citing Sale

v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993)); c f. Nieman v. Dryclean U.S.A.

Franchise Co., Inc., 178 F.3d 1126, 1129 (11th Cir. 1999) (It is undisputed that

Congress has the power to regulate the extraterritorial acts of U.S. citizens.).

A. Statutes Forbidding Crimes Against Private Individuals And Their

Property Are Presumed To Apply Only Domestically.

American criminal law only applies beyond the geographical confines of the

United States under certain limited circumstances referred to as the Bowman

circumstances, which make it highly unlikely that any United States law aimed at

protecting individuals, corporations, or their property would apply outside the

United State to a non-United States citizen. In Bowman the United States Supreme

Court explained the issues involved with a statute silent as to its extraterritorial

application:

The necessary locus, when not specially defined,

depends upon the purpose of Congress as evinced by the


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description and nature of the crime and upon the

territorial limitations upon the power and jurisdiction of a

government to punish crime under the law of nations.

Crimes against private individuals or their property, like

assaults, murder, burglary, larceny, robbery, arson,embezzlement, and frauds of all kinds, which affect the

peace and good order of the communitymust, of course, be

committed within the territorial jurisdiction of the government

where it may properly exercise it. If punishment of them is to

be extended to include those committed out side {sic} of

the strict territorial jurisdiction, it is natural for Congress

to say so in the statute, and failure to do so will negative

the purpose of Congress in this regard.

But the same rule of interpretation should not be

applied to criminal statutes which are, as a class, not

logically dependent on their locality for the government's

jurisdiction, but are enacted because of the right of the

government to defend itself against obstruction, or fraud

wherever perpetrated, especially if committed by its own

citizens, officers, or agents. Some such offenses can only

be committed within the territorial jurisdiction of the

government because of the local acts required to constitute

them. Others are such that to limit their locus to the

strictly territorial jurisdiction would be greatly to curtail

the scope and usefulness of the statute and leave open a

large immunity for frauds as easily committed by citizens

on the high seas and in foreign countries as at home. In

such cases, Congress has not thought it necessary to make

specific provision in the law that the locus shall include

the high seas and foreign countries, but allows it to be

inferred from the nature of the offense.

United States v. Bowman, 260 U.S. at 97-98.

There is an exception for laws and statutes that must necessarily have

international reach to achieve their aims. Generally, Congress is presumed to


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intend extraterritorial application of criminal statutes where the nature of the crime

does not depend on the locality of the defendants acts and where restricting the

statute to United States territory would severely diminish the statute's effectiveness.

United States v. Cohen, 427 F.3d 164, 168-169 (2d Cir. 2005) (quoting Yousef, 327 F.3d

at 87). For example, 18 U.S.C. 844(f)(1), which criminalizes damage to United

States property, has been held to apply extraterritorially. United States v. Bin Laden, 92

F. Supp. 2d 189, 196 (S.D.N.Y. 2000). Similarly, 18 U.S.C. 1959, which prohibits

violent crimes in aid of racketeering activity, applied to the murder of suspected

Drug Enforcement Agency (DEA) agents abroad, because drug trafficking by its

nature involves foreign countries and because DEA agents often work overseas, the

murder of a DEA agent in retaliation for drug enforcement activities is a crime

against the United States regardless of where it occurs. United States v. Vasquez-

Velasco, 15 F.3d 833 (9th Cir. 1994). Note that in each of these cases, the law at

issue is aimed at protecting United States property and personnel, not private folks

or property.

Conversely, the presumption against extraterritorial application of jurisdiction

applies to crimes against private individuals or their property, like assaults, murder,

burglary, larceny, robbery, arson, embezzlement and frauds of all kinds. United States

v. Gatlin, 216 F.3d 207, 211 (2nd Cir. 2000) (quoting United States v. Bowman, 260

U.S. at 98 (1922)). Crimes against private property are typically left to the other


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nation-state to handle--if you are robbed in London on a tour, local London police

would handle the matter under local law.

To illustrate, Bin Laden held that Subsection 844(f)(1) applies extraterritorially

because it defines a crime against United States Government property, and the

protection of government property would be frustrated by restricting the statute to

domestic conduct, and the statute falls under the Bowman exception. Subsection

844(f)(1) provides:

Whoever maliciously damages or destroys, or attempts

to damage or destroy, by means of fire or an explosive, any

building, vehicle, or other personal or real property in

whole or in part owned or possessed by, or leased to, the

United States, or any department or agency thereof, shall

be imprisoned for not less than 5 years and not more than

20 years, fined under this title, or both.

18 U.S.C. 844(f)(1). The Bin Laden court went on to hold that Subsection 844(F)

(3), (h), and (n) all depend on the underlying crime in Subsection 844(f)(1) for their

extraterritorial or domestic jurisdiction, so that these sub-sections also applied

outside the United States in that case. The statute 18 U.S.C. 844(i), in contrast, is

completely devoid of any protection of government propertyin fact, the statute by

its terms addresses private, commercial property to the exclusion of government

property. This statute does not likely apply extraterritorially.

B. As A Matter of Due Process, The Presumption Against

Extraterritorial Enforcement of Laws Is Stronger When The Accused


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Is Not A United States Citizen.

The presumption against extraterritorial reach of a statute applies with even

more force when the accused is not a citizen of the United States, who would not

normally be expected to know the law of the United States and conform to it. This

is a function of the basic due process guarantees of notice and the opportunity to be

heard. It is also a function of fundamental fairness that we have come to expect in

modern western justice systems.

Due process demands some nexus between the United States and the

circumstances of the offense. United States v. Medjuck, 156 F.3d 916, 918 (9th Cir.

1998)(to satisfy the strictures of due process, the Government [must] demonstrate

that there exists a sufficient nexus between the conduct condemned and the United

States such that the application of the statute [to the overseas conduct of an alien

defendant] would not be arbitrary or fundamentally unfair to the defendant); see

also United States v. Klimavicius-Viloria, 144 F.3d 1249, 1256 (9th Cir. 1998); United

States v. Greer, 956 F.Supp. 531, 534-36 (D. Vt. 1997); United States v. Aikens, 946 F.2d

608, 613-14 (9th Cir. 1990); United States v. Robinson, 843 F.2d 1, 5-6 (1st Cir. 1988);

United States v. Peterson, 812 F.2d 486, 493 (9th Cir. 1987); United States v. Gonzalez,

776 F.2d 931, 938-41 (11th Cir. 1985).

Second, the due process ideal requires notice. Citizens, for instance, might be

expected to know the laws of their own nation; seafarers to know the law of the sea


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and consequently the laws of the nation under which they sail; everyone should be

aware of the laws of the land in which they find themselves, and of the wrongs

condemned by the laws of all nations.

On the other hand, the application of American criminal statute to an alien

in a foreign country would tend to result in a lack of notice sufficient to raise due

process concerns. See generally Lambert v. California, 355 U.S. 225, 228-30(1957); see

alsoUnited States v. Bin Laden, 92 F.Supp.2d 189, 218 (S.D.N.Y. 2000) (discussing

notice component of due process, and reasoning that the defendant was deemed to

be on notice that something as cruel as mass murder was against the law of every

civilized country).

C. Congress Expressly And Clearly Includes Extraterritorial Jurisdiction

In Statutes When It Wants To.

This extraterritorial presumption principle can be overcome when Congress

clearly expresses its intent to do so. United States v. Yousef, 327 F.3d 56, 86 (2d Cir.

2003) (citing cases). As an example, the crime charged in Count I applies

extraterritorially. That statute, Section 18 U.S.C. 2332b, illustrates what Congress

writes when it intends a statute to apply outside of the boundaries of the United

States to non-citizens. As to jurisdiction 18 U.S.C. 2332b provides:

(e) Extraterritorial jurisdiction. There is extraterritorial

Federal jurisdiction--


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(1) over any offense under subsection (a), including any

threat, attempt, or conspiracy to commit such offense; and

(2) over conduct which, under section 3 [18 U.S.C 3],

renders any person an accessory after the fact to an offense

under subsection (a).

And, in addition it also specifies:

(g) Definitions. As used in this section--

(1) the term "conduct transcending national boundaries"

means conduct occurring outside of the United States in

addition to the conduct occurring in the United States;

18 U.S.C. 2332b (1999) (emphasis added).

Conversely, neither 18 U.S.C. 844(i) nor 18 U.S.C. 1366(a) contain any

language comparable to this. Section 1366, in fact, appears to be written in

contemplation of domestic application, only:

1366. Destruction of an energy facility

(a) Whoever knowingly and willfully damages or attempts

or conspires to damage the property of an energy facility in

an amount that in fact exceeds or would if the attempted

offense had been completed, or if the object of the

conspiracy had been achieved, have exceeded $ 100,000,

or damages or attempts or conspires to damage the

property of an energy facility in any amount and causes or

attempts or conspires to cause a significant interruption or

impairment of a function of an energy facility, shall bepunishable by a fine under this title or imprisonment for

not more than 20 years, or both.

.


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(c) For purposes of this section, the term "energy facility"

means a facility that is involved in the production, storage,

transmission, or distribution of electricity, fuel, or another

form or source of energy, or research, development, or

demonstration facilities relating thereto, regardless of whether such facility is still under construction or is

otherwise not functioning, except a facility subject to the

jurisdiction, administration, or in the custody of the

Nuclear Regulatory Commission or an interstate gas

pipeline facility as defined in section 60101 of title 49.

18 U.S.C. 1366 (2001). Nothing about the statute suggests that Congress intended

to depart from the standard presumption that the statute applies domestically.

Subsection 18 U.S.C. 844(i) also does not clearly express Congress desire to

regulate out-of-country conduct of non-citizens. It provides:

(i) Whoever maliciously damages or destroys, or attempts

to damage or destroy, by means of fire or an explosive, any

building, vehicle, or other real or personal property used

in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce shall beimprisoned for not less than 5 years and not more than 20

years, fined under this title, or both;.

18 U.S.C. 844(i). The statute refers to private property used in interstate or

foreign commerce, but this is not the same thing as an intent to regulate out-of-

country conduct by non-citizens.

Clearly Congress did not intend to provide a criminal remedy for every

damaged property, everywhere, that has ties to the stream of commerce. [I]t is

appropriate to assume that Congress had domestic concerns in mind. Small v.


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United States, 544 U.S. 385, 389-90 (2005). To read the statute otherwise would

create anomalies. Id. at 391. The Fourth Circuit has held that the interstate/

foreign commerce element of 18 U.S.C. 844(i) implicated power of Congress to

regulate conduct at issue when it occurred in the United States, and not jurisdiction

of court to hear particular case; thus, after judgment of conviction was validly

entered on guilty plea, defendant could not challenge jurisdiction based on interstate

commerce element. United States v Carr, 271 F3d 172 (4th Cir. 2001). Congress

intended to ensure that the crime was a federal crime by including the requirement

of effect on interstate or foreign commerce. There is no indication in the statute

that Congress intended it to reach outside the borders of the United States for non-

citizens.

[Further refuting the idea that interstate commerce reach = extraterritoriality reach

here.]

D. Analysis Of Congressional Intent To Apply Laws Extraterritorially

Requires An Examination Of Whether Imposition Of The Law Will

Violate International Norms.

Part of any analysis of Congressional intent to apply laws extraterritorially

requires an examination of whether imposition of the law will violate international

norms. See United States v. Bin Laden, 92 F. Supp. 2d 189, 196 (S.D.N.Y. 2000)

(stating that courts that find that a given statute applies extraterritorially typically


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pause to note that this finding is consistent with one or more of the five principles

of extraterritorial jurisdiction under international law, and also stating that courts

generally presume when determining whether a statute applies extraterritorially, that

in the absence of an explicit Congressional directive, courts do not give

extraterritorial effect to any statute that violates principles of international

law. (quoting United States v. Vasquez-Velasco, 15 F.3d at 839)). [A]n act of Congress

ought never to be construed to violate the law of nations if any other possible

construction remains, the Second Circuit ruled in United States v. Yousef when

determining whether Congress intended a particular statute to apply

extraterritorially. United States v. Yousef, 327 F.3d at 86 (citing McCulloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963) (quotations omitted)).

Under international law, the primary basis of jurisdiction is the subjective

territorial principle, under which a state has jurisdiction to prescribe law with

respect to ... conduct that, wholly or in substantial part, takes place within its territory.

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES

402(1)(a) (1987) (emphasis added); see also Christopher L. Blakesley, Extraterritonal

Jurisdiction in M. Cherif Bassiouni (ed.), INTERNATIONALCRIMINALLAW 47-50 (2d

ed. 1999). Under this principle, Mr. Reumayr should have been left to face the

charges over this conduct filed in Canada. Canada was where all of the conduct

took placewhere all of the evidence was located, where all the witnesses, save the


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Albuquerque informant, are apparently located.

The Eleventh Circuit has very recently held that the federal statutes

criminalizing conspiracy to possess with the intent to distribute a substance

containing cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(ii), and 21

U.S.C. 846, do not have extraterritorial application when the only connection that

the conspiracy had to the United States was the fact that about four meetings of the

co-conspirators took place in Miami. United States v. Lopez-Vanegas, 2007 U.S. App.

LEXIS 17792 (filed July 26) (11th Cir. 2007). In Lopez-Vanegas, the gist of the

conspiracy was to bring cocaine product from Columbia to Saudi Arabia and then to

France. The Government argued that the statutes reached the defendants, because

they held four meetings devising and planning the conspiracy while physically

present in Miami. Id. at 9-10 n.6. The Eleventh Circuit held that this minimal

contact with the United States was insufficient to constitute a violation of United

States law. Id. The plan did not involve any possession or distribution of

contraband on United States soil, so that matter was properly left to the other

nations.

International law recognizes five principles of jurisdiction other than the

territorial principle, above, by which a state may reach conduct outside its territory:

(1) the objective territorial principle; (2) the protective principle; (3) the nationality

principle; (4) the passive personality principle; and (5) the universality principle. See


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Blakesley, Extraterritorial Jurisdiction at 50-81.

The objective territoriality principle provides that a state has jurisdiction to

prescribe law with respect to conduct outside its territory that has or is intended to

have substantial effect within its territory. Restatement 402(1)(c). The protective

principle provides that a state has jurisdiction to prescribe law with respect to

certain conduct outside its territory by persons not its nationals that is directed

against the security of the state or against a limited class of other state interests. Id.

402(3) (emphasis added). Both of these principles describe what United States

courts refer to as the Bowman exception to the presumption against extraterritorial

reachwhen the statute at issue targets crimes against the Government or its

property or personnel, or when the purpose of the statute would remain unfulfilled

if there was no reach outside the borders.

The nationality principle provides that a state has jurisdiction to prescribe law

with respect to the activities, interests, status, or relations of its nationals outside as

well as within its territory. Id. 402(2). The passive personality principle provides

that a state may apply lawparticularly criminal lawto an act committed outside its

territory by a person not its national where the victim of the act was its national. Id.

402, cmt. g. The universality principle provides that, [a] state has jurisdiction to

define and prescribe punishment for certain offenses recognized by the community

of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking


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of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, regardless of

the locus of their occurrence. Id. 404 (emphasis added).

[I]n determining whether a statute applies extraterritorially, [courts] presume

that Congress does not intend to violate principles of international law... [and] in the

absence of an explicit Congressional directive, courts do not give extraterritorial

effect to any statute that violates principles of international law. United States v.

Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994) (citing McCulloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963). Hence, courts that find

that a given statute applies extraterritorially typically pause to note that this finding is

consistent with one or more of the five principles of extraterritorial jurisdiction

under international law. See, e.g., United States v. MacAllister, 160 F.3d 1304, 1308

(11th Cir. 1998) (objective territorial principle); Vasquez-Velasco, 15 F.3d at 841

(objective territoriality principle, protective principle, and universality principle);

United States v. Felix-Gutierrez, 940 F.2d 1200, 1205-1206 (9th Cir. 1991) (objective

territoriality principle, protective principle, and passive personality principle);

Benitez, 741 F.2d at 1316 (protective principle and passive personality principle);

Pizzarusso, 388 F.2d at 11 (protective principle). This is another nod to what is

perceived as ideals of fundamental fairness in modern justice systems--the United

States would like foreign courts to consider the principles before they hail a United

States citizen not connected with their country into a foreign criminal court, so we


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extend the same principles.

E. Insufficient Nexus Between the Crime, Defendant and the

United States Would Make Criminal Prosecution A Violation

of the Fifth Amendment Right To Due Process.

The prosecution of this case violates Mr. Reumayrs Fifth Amendment Due

Process Clause rights because there is insufficient nexus between the criminal

conduct alleged and his contacts with the United States. This nexus is required

when a federal statute is applied extraterritorially so that such application would

not be arbitrary or fundamentally unfair. United States v. Davis, 905 F.2d 245, 248-9

(9th Cir. 1990) (citations omitted); see also United States v. Yousef, 327 F.3d 56, 111

(2d Cir. 2003) (adopting Davis due process analysis). Given the lack of a nexus, the

Unites States prosecution of the instant case violates Mr. Reumayrs Fifth

Amendment due process rights because it is arbitrary or fundamentally unfair. See

United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J., concurring)

(I do not mean to imply, and the Court has not decided, that persons in the

position of the respondent have no constitutional protection. The United States is

prosecuting a foreign national in a court established under Article III, and all of the

trial proceedings are governed by the Constitution. All would agree, for instance

that the dictates of the Due Process Clause of the Fifth Amendment protect the

defendant).

Due process at a minimum demands some nexus between the United States


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and the circumstances of the offense. United States v. Medjuck, 156 F.3d 916, 918

(9th Cir. 1998) (to satisfy the strictures of due process, the Government [must]

demonstrate that there exists a sufficient nexus between the conduct condemned

and the United States such that the application of the statute [to the overseas

conduct of an alien defendant] would not be arbitrary or fundamentally unfair to

the defendant), citing, United States v. Davis, 905 F.2d at 248-49; see also, United States

v. Klimavicius-Viloria, 144 F.3d 1249, 1256 (9th Cir. 1998); United States v. Greer, 956

F. Supp. 531, 534-36 (D. Vt. 1997); United States v. Aikens, 946 F.2d 608, 613-14 (9th

Cir. 1990); United States v. Robinson, 843 F.2d 1, 5-6 (1st Cir. 1988); United States v.

Peterson, 812 F.2d 486, 493 (9th Cir. 1987); United States v. Gonzalez, 776 F.2d 931,

938-41 (11th Cir. 1985).

Due process also requires adequate notice--some idea to the defendant that he

or she is expected to comport with United States legal principles in this particular

situation.

The nexus requirement of due process would probably be satisfied in many

cases by United States citizenship. As a citizen of the United States, a defendant is

deemed to know the law of his land, so there is no notice problem, and is subject to

the jurisdiction of United States courts. See U.S. Const. amend. XIV, 1. A

defendant's citizenship alone would be sufficient to satisfy Fifth Amendment due

process concerns surrounding extraterritorial application of most criminal statutes.


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See United States v. Clark, 435 F.3d 1100, 1108 (9th Cir. 2006). The "longstanding

principle that citizenship alone is sufficient to satisfy Due Process concerns still has

force." Id. (discussing Blackmer v. United States, 284 U.S. 421 (1932)). Furthermore,

"'[t]here is no doubt that the United States may exercise jurisdiction over American

nationals living abroad, regardless of where the crime is committed.'" Id. (quoting

United States v. Corey, 232 F.3d 1166, 1179 n.9 (9th Cir. 2000)); see also United States

v. Columba-Colella, 604 F.2d 356, 358 (5th Cir.1979) (a country may supervise and

regulate the acts of its citizens both within and without its territory).

The nexus requirement is not so easily satisfied when the putative defendant

is not a citizen and acted abroad. This would be especially true if the defendant was

not found or apprehended in the United States (where the argument might be made

he consented to being subject to our laws by enjoying them) and she or he was

forcibly brought here over objection.

Cases applying a statute extraterritorially to aliens not in the United States in

general have first found a constellation of United States contacts and implications.

The Ninth Circuit in the infamous case of Vasquez-Velasco, in which defendants

from Mexico were charged with the murder of two United States citizens in Mexico,

is the lead example. The United States victims were mistaken for DEA agents by

their killers, and that is why they were killed. 15 F.3d at 837. Mexican drug cartel

murders of DEA agents would certainly be enforceable in the United States . The


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Ninth Circuit found that 18 U.S.C. 1959, which prohibits violent crimes in aid of

racketeering activity, applied extraterritorially to the murders, which occurred just

over the international border with Mexico, even though the victims were not actually

DEA agents. The murder of men the cartel suspected were Drug Enforcement

Agency (DEA) agents provided sufficient contacts for enforcement of the law

extraterritorially, both because two United States citizens targeted because they were

thought to be working for the United States government enforcing United State law were

murdered, and because the motive for the murder was to strike at the United States

Government, and its efforts at enforcement. United States v. Vasquez-Velasco, 15 F.3d

833 (9th Cir. 1994).

Similarly, in United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991), and

United States v. Lopez-Alvarez, 970 F.2d 583, 586, 596 (9th Cir.), the cases involved the

extraterritorial kidnapping, torture, and murder of a DEA agent and a confidential

DEA informant, where the defendants were charged with being accessories-after-the-

fact, in violation of 18 U.S.C. 3. The courts found extraterritorial jurisdiction to

exist, because the motive (strike the government) and the victims (government

personnel) provided adequate nexus.

These cases represent the stretch of extraterritoriality to its extreme. Absent

an equivalent constellation of connections, however, application of United States

Criminal Law to people not in the United States and not citizens would violate due


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process norms.

If you think that this talk of minimum contacts and nexus is not at all

unlike the legal analysis in civil proceedure for minimum contacts for personal

jurisdiction under the line of cases starting with International Shoe Co. v. Washington,

326 U.S. 310 (1945) requiring certain minimum contacts with it such that the

maintenance of the suit does not offend traditional notions of fair play and

substantial justice. International Shoe concerned the minimum contacts a

corporation (or putative civil defendant) had to have with a state (small s state, like

New Mexico) in order to be hailed into its courts to answer. The Supreme Court

ruled an entity can be hailed into court to answer where it is fair, and it is fair where

the entity has had certain minimum contacts with the host state. The Supreme

Court in International Shoe broke down the types of contact that a defendant can

have with a state into "casual" contact and "systematic and continuous" contact. In

cases with only casual contact, the claim must be related to the contact in order for

the state to have jurisdiction. Casual contact is not a basis for bringing unrelated

claims. Systematic and continuous contact allows for both claims related to the

contact and unrelated claims.

The due process analysis for extraterritoriality follows along the same lines,

tempered, however, by concerns of international diplomacy and the fact that a

criminal charge is a much more serious matter than a mere civil damages claim.


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[Analysis of how it would be anomalous for extraterritoriality analysis to permit less

for minimum contacts than required by International Shoe will go here. Still being

developed.]

Conclusion

[Conclusion may tie law of extraterritoriality to specific topical case of Julian

Assange and Wikileaks.]

Documents

Draft Extraterritoriality Paper