Order Code 94-166 A CRS Report for Congress Received through the CRS Web Extraterritorial Application of American Criminal Law Updated August 11, 2006 Charles Doyle Senior Specialist American Law Division Congressional Research Service ˜ The Library of Congress Extraterritorial Application of American Criminal Law Summary Crime is usually territorial. It is a matter of the law of the place where it occurs. Nevertheless, a surprising number of American criminal laws apply outside of the United States. Application is generally a question of legislative intent, expressed or implied. In either case, it most often involves crimes committed aboard a ship or airplane, crimes condemned by international treaty, crimes committed against government employees or property, or crimes that have an impact in this country even if planned or committed in part elsewhere. Although the crimes may be many, so are the obstacles to their enforcement. For both practical and diplomatic reasons, criminal investigations within another country require the acquiescence, consent, or preferably the assistance, of the authorities of the host country. The United States has mutual legal assistance treaties with several countries designed to formalize such cooperative law enforcement assistance. Searches and interrogations carried out on our behalf by foreign officials, certainly if they involve Americans, must be conducted within the confines of the Fourth and Fifth Amendments. And the Sixth Amendment imposes limits upon the use in American criminal trials of depositions taken abroad. Our recently negotiated extradition treaties address some of the features of our earlier agreements which complicate extradition for extraterritorial offenses, i.e., dual criminality requirements and exemptions on the basis of nationality or political offenses. To further facilitate the prosecution of federal crimes with extraterritorial application Congress has enacted special venue, statute of limitations, and evidentiary statutes. This report is available in an abridged version – stripped of its appendices, bibliography, footnotes, and most of its citations to authority – as CRS Report RS22497, Extraterritorial Application of American Criminal Law: Abbreviated Sketch. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Constitutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Constitutional Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statutory Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Current Extent of American Extraterritorial Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Investigation and Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Mutual Legal Assistance Treaties and Agreements . . . . . . . . . . . . . . . 23 Letters Rogatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Search and Seizure Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Self-Incrimination Overseas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Statute of Limitations: 18 U.S.C. 3292 and Related Matters . . . . . . . . 29 Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Testimony of Overseas Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Admissibility of Foreign Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 I. Federal Criminal Laws Which Enjoy Express Extraterritorial Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 A. Special Maritime & Territorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 43 B. Special Aircraft Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 C. Treaty-Related . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 D. Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 II. Federal Crimes Subject to Federal Prosecution When Committed Overseas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 A. Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 B. Kidnaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 C. Assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 D. Property Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 E. Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 F. False Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 G. Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 H. Counterfeiting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 I. Piggyback Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 III. Model Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 IV. Florida State Special Maritime Criminal Jurisdiction Statute . . . . . . . 66 V. Restatement of the Law Third: The Foreign Relations Law of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 VI. 18 U.S.C.7: Special Maritime and Territorial Jurisdiction of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 V. Military Extraterritorial Jurisdiction Act of 2000 18 U.S.C. 3261 . . . . 70 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Extraterritorial Application of American Criminal Law Introduction Crime is ordinarily proscribed, tried and punished according to the laws of the place where it occurs.1 American criminal law applies beyond the geographical confines of the United States, however, under certain limited circumstances. State prosecution for overseas misconduct is limited almost exclusively to multijurisdictional crimes, i.e., crimes where some elements of the offense are committed within the state and others are committed beyond its boundaries. A surprising number of federal criminal statutes have extraterritorial application, but prosecutions have been few. This may be because when extraterritorial criminal jurisdiction does exist, practical and legal complications, and sometimes diplomatic considerations, may counsel against its exercise. Constitutional Considerations Legislative Powers The Constitution does not forbid either Congressional or state enactment of laws which apply outside the United States. Nor does it prohibit either the federal government or the states from enforcing American law abroad. Several passages suggest that the Constitution contemplates the application of American law beyond the geographical confines of the United States. It speaks, for example, of “felonies on the high seas,” “offences against the law of nations,” “commerce with foreign nations,” and of the impact of treaties. More specifically, it grants Congress the power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” U.S.Const. Art.I, §8, cl.10. Although logic might point to international law or some other embodiment of “the law of nations” as a source of the dimensions of Congress’s authority to define and punish crimes against the law of nations, in reality the courts have done little to identify such boundaries, and until recently Congress seems to have relied exclusively on the law of nations clause only upon rare occasions. In instances when the law of nations might have been thought to suffice, Congress has, instead, relied upon a high seas component which, when coupled with 1 “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). CRS-2 its authority to define the admiralty and maritime jurisdictions of the federal courts, permits the application of federal criminal law even to an American vessel at anchor well within the territory of another nation.2 The enactment of maritime statutes is reenforced by Congress’s power “[t]o regulate Commerce with foreign Nations,” U.S.Const.Art.I, §8, cl.3.3 The same prerogative supports legislation regulating activities in the air. Finally, Congress has resorted on countless occasions to its authority to enact legislation to activate various of its own enumerated powers or the powers vested in one of the other branches, U.S.Const. Art.I, §8, cl.18.4 It has, for instance, regularly called upon the authority deposited with the President and the Congress in the fields of foreign affairs and military activities,5 powers which the courts have described in 2 United States v. Flores, 289 U.S. 137, 159 (1933)(Flores, an American seaman, was convicted of murdering another American aboard an American ship moored 250 miles up the Congo River (well within the territorial jurisdiction of the then Belgian Congo) under the federal statute proscribing murder committed within the special maritime jurisdiction of the United States). 3 The commerce power includes the authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It is a power of exceptional breadth domestically, see e.g., Perez v. United States, 402 U.S. 146, 146-47 (1971); Heart of Atlanta Motel v. United States, 379 U.S. 241, 261-62 (1964). and perhaps even more extraordinary reach in an international context. California Bankers Ass'n v. Shultz, 416 U.S. 21, 46 (1974)(“the plenary authority of Congress over both interstate and foreign commerce is not open to dispute”); United States v. 12,200-Ft. Reels of Film, 413 U.S. 123, 125 (1973)(“The Constitution gives Congress broad, comprehensive powers ‘to regulate Commerce with foreign Nations’”). This does not necessarily mean that every statute enacted in the exercise of Congress’ power to regulate commerce with foreign nations enjoys extraterritorial application. Some do, Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952); others do not, EEOC v. Arabian American Oil Co., 499 U.S. 244, 258-59 (1991). 4 “The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 5 See e.g., “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States . . . . He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors . . . . He . . . shall receive Ambassadors and other public Ministers; [and] he shall take Care that the Laws be faithfully executed . . . .” U.S.Const. Art.II, §§2, 3. “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . . ; To establish an uniform Rule of Naturalization' . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies . . .; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; . . . [and] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S.Const. Art.I, §8, cls.1, 4, 11-14, 18. CRS-3 particularly sweeping terms.6 Constitutional Limitations Nevertheless, the powers granted by the Constitution are not without limit. The clauses enumerating Congress’s powers carry specific or implicit limits which govern the extent to which the power may be exercised overseas.7 Other limitations appear elsewhere in the Constitution, most notably in the due process clauses of the Fifth and Fourteenth Amendments. Finally, some limitations are a product of the need to harmonize potentially conflicting grants of authority. For example, although the Constitution reserves to the states the residue of governmental powers it does not vest elsewhere, the primacy it affords the federal government in the area of foreign affairs limits the authority of the states in the field principally to those areas where they are acting with federal authority or acquiescence.8 6 United States v. Curtiss-Wright Corp., 299 U.S. 304, 315-18 (1936); Ex parte Quirin, 317 U.S. 1, 25-6 (1942); Parker v. Levy, 417 U.S. 733, 756-61 (1974). Some judicial authorities have suggested that in the area of foreign affairs the Constitution's establishment of the federal government as a sovereign entity vested it with authority, defined by standards recognized by the law of nations, beyond its constitutionally enumerated powers. United States v. Rodriguez, 182 F.Supp. 479, 490-91 (S.D.Cal. 1960), aff'd sub nom., Rocha v. United States, 288 F.2d 545 (9th Cir. 1961)(“The powers of the government and the Congress in regard to sovereignty are broader than the powers possessed in relation to internal matters, United States v. Curtiss-Wright Export Corp., 1936, 299 U.S. 304: ‘The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect to our internal affairs.’ Id., 299 U.S. at page 315. . . . ‘It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. Id. 299 U.S. at page 318.’ . . . To put it in more general terms, the concept of essential sovereignty of a free nation clearly requires the existence and recognition of an inherent power in the state to protect itself from destruction. This power exists in the United States government absent express provision in the Constitution and arises from the very nature of the government which was created by the Constitution”). 7 Toth v. Quarles, 350 U.S. 11, 21-3 (1955) (court martial trial of a civilian for crimes he allegedly committed in Korea while in the military exceeded the authority granted Congress by art.I, §8, cl.14 and art.III, §2); Kinsella v. Singleton, 361 U.S. 234, 248 (1960)(holding that Congressional authority under art.I, §8, cl.14 to make rules and regulations governing the land and naval forces did not include authority for the court martial trial of civilian dependents for offenses committed overseas); consider, Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AMERICAN JOURNAL OF INTERNATIONAL LAW 880, 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”). 8 Cf., Skiriotes v. Florida, 313 U.S. 69, 77 (1941)(“[W]e see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress. Save for the power committed by the Constitution to the Union, the State of CRS-4 In the area of extraterritorial jurisdiction, the most often cited limitation resides in the due process clauses of the Fifth and Fourteenth Amendments. While the enumerated powers may carry specific limits which govern the extent to which the power may be exercised overseas, the general restrictions of the due process clauses are more likely to define the outer reaches of the power to enact and enforce legislation with extraterritorial application.9 Unfortunately, most of the cases do little more than note that due process restrictions mark the frontier of the authority to enact and enforce American law abroad.10 Even the value of this scant illumination is dimmed by the realization that the circumstances most likely to warrant such due process analysis are the very ones for which the least process is due. Although American courts that try aliens for overseas violations of American law must operate within the confines of due process,11 the Supreme Court has observed that the Constitution’s due process commands do not protect aliens who lack any “significant voluntary connection[s] with the United States.”12 Moreover, the Court’s more recent decisions often begin with the assumption that the issues of extraterritorial jurisdiction come without constitutional implications.13 Florida has retained the status of a sovereign”); Stepansky v. State, 761 So.2d 1027, 1034-35 (Fla. 1998). 9 “No person shall . . . be deprived of life, liberty, or property, without due process of law. . . .” U.S.Const. Amend.V. “". . . [N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” U.S.Const. Amend.XIV, §1. 10 See e.g., United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003); United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir. 1990); United States v. Quemener, 789 F.2d 145, 156 (2d Cir. 1986); United States v. Henriquez, 731 F.2d 131, 134-35 n.4, 5(2d Cir. 1984); United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983); United States v. HowardArias, 679 F.2d 363, 371 (4th Cir. 1982). 11 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”). 12 “The global view . . . of the Constitution is also contrary to this Court’s decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. . . . [I]t is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power. “Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” United States v. Verdugo-Urquidez, 494 U.S. at 268-71. 13 EEOC v. Arabian American Oil Co., 499 U.S. at 248 (“Both parties concede, as they must that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States. Whether Congress has in fact exercised that authority in this case is a matter of statutory construction”). CRS-5 The handful of lower courts to consider due process issues take one of two tracks. Most describe a due process requirement that demands some nexus between the United States and the circumstances of the offense.14 In some instances they look to international law principles to provide a useful measure to determine whether the nexus requirement has been met;15 in others they consider principles at work in the minimum contacts test for personal jurisdiction.16 At the heart of these cases is the notion that due process expects that a defendant’s conduct must have some past, present, or anticipated locus or impact within the United States before he can fairly be held criminal liable for it in an American court. The commentators have greeted 14 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), but see, United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993)(explicitly rejecting the Davis nexus test in a case involving extraterritorial misconduct aboard a stateless vessel (a ship without nationality). Note the Ninth Circuit considers the Davis nexus test inapplicable in stateless vessel cases, United States v. Caicedo, 47 F.3d 370, 372-73 (9th Cir. 1995). These “subject matter” or “legislative” jurisdiction due process questions have arisen more often from attempts to impose civil liability or regulatory obligations, particularly at the state level, see e.g., Gerling Global Reinsurance Corp. v. Gallagher, 267 F.3d 1228, 1234-238 (11th Cir. 2001)(due process precludes application of Florida’s Holocaust Victims Insurance Act to insurance policies issued outside the state, to persons outside the state, and covering individuals outside the state); see also, Gerling Global Reinsurance Corp. v. Low, 240 F.3d 739, 753 (9th Cir. 2001); Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 70-1 (1954)(“because the policy was bought, issued and delivered outside of Louisiana, Employers invokes the due process principle that a state is without power to exercise ‘extra territorial jurisdiction’ that is, to regulate and control activities wholly beyond its boundaries”). 15 United States v. Davis, 905 F.2d 245, 249 n.2 (9th Cir. 1990) (“International law principles may be useful as a rough guide of whether a sufficient nexus exists between the defendant and the United States so that application of the statute in question would not violate due process. However, danger exists that emphasis on international law principles will cause us to lose sight of the ultimate question: would application of the statute to the defendant be arbitrary or fundamentally unfair?”); cf., United States v. Caicedo, 47 F.3d 370, 372-73 (9th Cir. 1995). 16 United Sates v. Clark, 435 F.3d 1100, 1108 (9th Cir. 2006)(“Although Clark’s citizenship alone is sufficient to satisfy due process concerns, his U.S. investments, ongoing receipt of federal retirement benefits and use of U.S. military flights also underscore his multiple and continuing ties with this country”); United States v. Klimavicius-Viloria, 144 F.3d at 1257 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); 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). CRS-6 this analysis with hesitancy at best.17 The second, less frequently articulated contention sees the due process component at issue as one of notice. It perceives the difficulty as one akin to the proscriptions against secret laws and vague statutes, the exception to the maxim that ignorance of the law is no defense.18 Under this view, indicia of knowledge, of reason to know, of an obligation to know, or of reasonable ignorance of the law’s requirements – some of which are reflected in international standards – seem to be the most relevant factors. Citizens, for instance, might be expected to know the laws of their own nation; seafarers to know the law of the sea 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.19 On the other hand, the application of American criminal statute to an alien in a foreign country under whose laws the conduct is lawful would seem to evidence a lack of notice sufficient to raise due process concerns.20 17 Brilmayer & Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARVARD LAW REVIEW 1217 (1992); Weisburd, Due Process Limits on Federal Extraterritorial Legislation?, 35 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 379 (1997); Due Process and True Conflicts: The Constitutional Limits on Extraterritorial Federal Legislation and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996), 46 CATHOLIC UNIVERSITY LAW REVIEW 907 (1997). 18 “The rule that ignorance of the law will not excuse is deep in our law, as is the principle that of all the powers of local government, the police power is one of the least limitable. On the other hand, due process places some limits on its exercise. Ingrained in our concept of due process is the requirement of notice. . . . As Holmes wrote in the Common Law, ‘A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.’ It severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where [as here] a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Lambert v. California, 355 U.S. 225, 228-30(1957)(emphasis added)(citations omitted); accord, United States v. Vasarajs, 908 F.2d 443, 448-49 (9th Cir. 1990); Griffin v. Wisconsin, 483 U.S. 868, 875 n.3 (1987). 19 United States v. Bin Laden, 92 F.Supp.2d 189, 218 (S.D.N.Y. 2000)(“Odeh argues that application of Sections 844(f), (h), and (n); 924(c); 930(c); and 2155 to the extraterritorial conduct he is alleged to have engaged in would violate his due process right to a fair warning. . . .The Government responds that while Odeh may not have known that breadth of the statutory framework that would serve as the basis for the charges against him . . . there is no room for him to suggest that he has suddenly learned that mass murder was illegal in the United States or anywhere else. . . . The Government also argues that Odeh cannot be surprised to learn that his conduct was criminal under the laws of every civilized nation, and thus he has no right to complain about the particular forum in which he is brought to trial. We likewise find this argument persuasive.”) 20 Consider e.g., United States v. Henriquez, 731 F.2d 131, 134 n.5 (2d Cir. 1984) (“It is also argued that 21 U.S.C. §955a(a) as applied [possession of marijuana with intent to distribute by Colombian nationals aboard a non-American vessel in international waters] violates the notice requirement of the due process clause of the Fifth Amendment. See Lambert v. California . . . . The argument is based not only on the claim that the statute is CRS-7 Conceding this outer boundary, however, the courts fairly uniformly have held that questions of extraterritoriality are almost exclusively within the discretion of Congress; a determination to grant a statutory provision extraterritorial application – regardless of its policy consequences – introduces no new constitutional infirmities. Statutory Construction For this reason, the question of the extent to which a particular statute applies outside the United States has generally been considered a matter of statutory, rather than constitutional, construction.21 General rules of statutory construction have emerged which can explain, if not presage, the result in a given case. The first of these holds that a statute will be construed to have only territorial application unless there is a clear indication of some broader intent.22 A second rule of construction states that the nature and purpose of a statute may provide an indication of whether Congress intended a statute to apply beyond the unprecedented in international law and the proposition that marijuana trafficking itself is not universally condemned, but also on the alleged vagueness of the definition of ‘vessel without nationality’ in 21 U.S.C. §955b(d) [upon which federal jurisdiction was based]. On this point, however, we agree with the Eleventh Circuit . . . that the term ‘vessel without nationality’ clearly encompasses vessels not operating under the authority of any sovereign nation”); United States v. Alvarez-Mena, 765 F.2d 1259, 1267 n.11 (5th Cir. 1985) (“Nevertheless, we observe that we are not faced with a situation where the interests of the United States are not even arguably potentially implicated. The present case is not remotely comparable to, for example, the case of an unregistered small ship owned and manned by Tanzanians sailing from that nation to Kenya on which a crew member carries a pound of marihuana to give to a relative for his personal consumption in the latter country”)(example offered in discussion of presumption of Congressional intent). 21 EEOC v. Arabian American Oil Co., 499 U.S. at 248; Foley Brothers v. Filardo, 336 U.S. 281, 284-85 (1949)(“The question before us is not the power of Congress to extend the eight hour law to work performed in foreign countries. Petitioners concede that such power exists. The question is rather whether Congress intended to make the law applicable to such work”); United States v. Yousef, 327 F.3d 56, 86 (2d. Cir. 2003)(“It is beyond doubt that, as a general proposition, Congress has the authority to enforce its laws beyond the territorial boundaries of the United States”); United States v. Gatlin, 216 F.3d 207, 211 (2d Cir. 2000). 22 “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.” EEOC. v. Arabian American Oil Co., 499 U.S. at 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); Smith v. United States, 507 U.S. 197, 203 (1993); Small v. United States, 544 U.S. 385, 388-89 (2005); United States v. DeLeon, 270 F.3d 90, 93 (1st Cir. 2001); cf., The Antelope, 23 U.S. 30, 53-4 (10 Wheat. 66, 123) (1825)(“The courts of no country will execute the penal laws of another”). The principle has a corollary, the so-called revenue rule, which precludes judicial enforcement of a foreign tax laws, Pasquantino v. United States, 544 U.S. 349, 360-61 (2005). The rule, however, does not preclude enforcement of a federal criminal statute which proscribes defrauding a foreign country of its tax revenues, id. at 354-55 (“the common-law revenue rule, rather than barring any recognition of foreign revenue law, simply allow[s] courts to refuse to enforce the tax judgments of foreign nations, and therefore [does] not preclude the Government from prosecuting. . .”). CRS-8 confines of the United States. Although hints of it can be found earlier,23 the rule was first clearly announced in United States v. Bowman, 260 U.S. 94, 97-98, 102 (1922).24 23 See e.g., American Banana Co. v. United Fruit Co., 213 U.S. at 355-56, “It is obvious that, however stated, the plaintiff's case depends on several rather startling propositions. In the first place the acts causing the damage were done so far as appears, outside the jurisdiction of the United States and within that of other states. It is surprising to hear it argued that they were governed by the act of Congress. “No doubt in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such countries may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive. They go further at times and declare that they will punish any one, subject or not, who shall do certain things, if they can catch him, as in the case of pirates on the high seas. In cases immediately affecting national interests they may go further still and may make, and, if they get the chance, execute similar threat as to acts done within another recognized jurisdiction. An illustration from our statutes is found with regard to criminal correspondence with foreign governments. . .” 24 “We have in this case a question of statutory construction. The necessary locus, when not specifically defined, depends upon the purpose of Congress as evinced by the 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 community, must 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 outside the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negate the purpose of Congress in this regard. We have an example of this in the attempted application of the prohibitions of the Anti-Trust Law to acts done by citizens of the United States against other such citizens in a foreign country. American Banana Co. v. United Fruit Co., 213 U.S. 347. That was a civil case, but as the statute is criminal as well as civil, it presents an analogy. “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. . . . Clearly it is no offense to the dignity or right of sovereignty of Brazil [– where the fraud of which the United States government was the target occurred –] to hold [these American defendants] for this crime against the government to which they owe allegiance.” See also, United States v. DeLeon, 270 F.3d 90, 93 (1st Cir. 2001); United States v. Liang, 224 F.3d 1057, 1060 (9th Cir. 2000); United States v. Plummer, 221 F.3d 1298, 1304-396 (11th Cir. 2000). CRS-9 The third rule encompasses misconduct overseas which has an impact within the United States.25 The Supreme Court has painted the “external force” principle with a broad brush, “a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done,” Ford v. United States, 273 U.S. 593, 623 (1927). The principle has been found to accommodate cases of overseas attempts as well as foreign conspirators and accomplices,26 and it is by far the most frequently cited judicial response to attacks on the extraterritorial application of federal criminal law.27 The final rule declares that unless a contrary intent is clear, Congress is assumed to have acted so as not to invite action inconsistent with international law.28 At one time, the cases seemed to imply the existence of a fifth principle, that is that, unless Congress declared that it intended a statute to apply overseas to both aliens and American nationals, it would be presumed to apply only to Americans.29 In the eyes 25 The classic example of the latter occurs where an assailant, standing in one jurisdiction, fires a gun across the border killing someone in another jurisdiction – in which case the murder is said to have been committed in the jurisdiction in which the victim was struck, LAFAVE & SCOTT, CRIMINAL LAW, 118 (1972). 26 Strassheim v. Daily, 221 U.S. 280, 284-85 (1911); United States v. Inco Bank & Trust Co., 845 F.2d 919, 920 (11th Cir. 1988); United States v. Endicott, 803 F.2d 506, 514 (9th Cir. 1986); United States v. Plummer, 221 F.3d 1298, 1304-307 (11th Cir. 2000). 27 It appears regularly in cases of alien drug smugglers who contend – unsuccessfully – that the explicit extraterritorial provisions of the Maritime Drug Law Enforcement Act, 46 U.S.C.App. 1903, should be construed to apply only to American nationals. It is probably the volume of these cases which accounts for the principle’s popularity. 28 “It has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, 2 Cranch [6 U.S.] 64, 118 (1804), that an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains,” Weinberger v. Rossi, 456 U.S. 25, 32 (1982); The Apollon, 22 U.S. (9 Wheat.) 362, 370-71 (1824)(“It cannot be presumed, that Congress would voluntarily justify . . . a clear violation of the law of nations”). 29 See e.g., The Apollon, 22 U.S. (9 Wheat.) at 370 (“The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens”)(emphasis added); American Banana Co. v. United Fruit Co., 213 U.S. at 355-6 (“No doubt in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such countries may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive. . . . And the notion that English statutes bind British subjects everywhere has found expression in modern times and has had some startling applications”); United States v. Bowman, 260 U.S. at 102 (“Section 41 of the Judicial Code provides that ‘the trial of all offenses committed on the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought.’ The three defendants who were found in New York were citizens of the Untied States and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance. The other defendant is a subject of Great Britain. He has never been apprehended, and it will be time enough to consider what, if any, jurisdiction the District Court below has to punish him when he is brought to trial”); Blackmer v. United States, 284 U.S. 421, 437 (1932)(“With respect to CRS-10 of the community of nations, a jurisdictional claim over misconduct based solely on the nationality of the victim continues to be among the more tenuous. Yet as discussed below, the presumption seems less robust in light of the generous reading of the other internationally recognized grounds upon which to stake a claim.30 International Law. International law supports rather than dictates decisions in the area of the overseas application of American law. Neither Congress nor the courts are bound to the dictates of international law when enacting or interpreting statutes with extraterritorial application.31 Yet Congress looks to international law when it evaluates the policy considerations associated with legislation that may have international consequences. For this reason, the courts interpret legislation with the presumption that Congress or the state legislature, unless it indicates otherwise, intends its laws to be applied within the bounds of international law. such exercise of authority, there is no question of international law, but solely of the purport of municipal law which establishes the duties of the citizen in relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application so far as citizens of the United States in foreign countries are concerned is one of construction, not of legislative power”); United States v. Columba-Colella, 604 F.2d 356, 360 (5th Cir. 1979) (“Congress [is] not competent to attach criminal sanctions to the murder of an American by a foreign national in a foreign country. . .”). 30 E.g., United States v. Vasquez-Velasco, 15 F.3d 833, 839-41 (9th Cir. 1994)( prosecution under 18 U.S.C. 1959 for the murder of two American tourists in Mexico by Mexican nationals acting under the mistaken belief that the Americans were DEA agents came within the “protective principle” recognized in international law as permitting the exercise of extraterritorial jurisdiction in the name of a nation’s security); United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir. 1991); United States v. Felix-Gutierrez, 940 F.2d 1200, 1205206 (9th Cir. 1991)(murder of an American agent overseas came within the protective and passive personality principles); United States v. Benitez, 741 F.2d 1312, 1316-317 (11th Cir. 1986); see also, United States v. Bin Laden, 92 F.Supp.2d 189, 194-5 (S.D.N.Y.2000) (concluding that Bowman applies regardless of the nationality of the offender). 31 “Yunis seeks to portray international law as a self-executing code that trumps domestic law whenever the two conflict. That effort misconceives the role of judges as appliers of international law and as participants in the federal system. Our duty is to enforce the Constitution, laws, and treaties of the United States, not to conform the law of the land to norms of customary international law,” United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir. 1991); United States v. Yousef, 327 F.3d 56, 86(2d Cir. 2003)(“In determining whether Congress intended a federal statute to apply to overseas conduct, an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Nonetheless, in fashioning the reach of our criminal law, Congress is not bound by international law. If it chooses to do so, it may legislate with respect to conduct outside the United States in excess of the limits posed by international law”); United States v. FelixGutierrez, 940 F.2d 1200, 1203 (9th Cir. 1991); United States v. Henriquez, 731 F.2d 131, 134 (2d Cir. 1984). CRS-11 To what extent does international law permit a nation to exercise extraterritorial jurisdiction? The question is essentially one of national interests. What national interest is served by extraterritorial application and what interests of other nations suffer by an extraterritorial application? The most common classification of these interests dates to a 1935 Harvard Law School study which divided them into five categories involving: (1) the regulation of activities occurring within the territory of a country; (2) the regulation of the conduct of its nationals; (3) the protection of its nationals; (4) the regulation of activities outside a country which have an impact within it; and (5) the regulation of activities which are universally condemned.32 Legislation may reflect more than one interest or principle and there is little consensus of the precise boundaries of the principles.33 The American Law Institute’s Third Restatement of the Foreign Relations Law of the United States contains perhaps the most comprehensive, contemporary statement of international law in the area. It indicates that the latitude international law affords a country to enact, try and punish violations of its law extraterritorially is a matter of reasonableness, and its assessment of reasonableness mirrors a balancing of the interests represented in the principles.34 32 “An analysis . . . discloses five general principles on which a more or less extensive penal jurisdiction is claimed by States at the present time. These five general principles are: first, the territorial principle, determining jurisdiction by reference to the place where the offence is committed; second, the nationality principle, determining jurisdiction by reference to the nationality or national character of the person committing the offence; third, the protective principle, determining jurisdiction by reference to the national interest injured by the offence; fourth, the universality principle, determining jurisdiction by reference to the custody of the person committing the offence; and fifth, the passive personality principle, determining jurisdiction by reference to the nationality or national character of the person injured by the offence. Of these five principles, the first is everywhere regarded as of primary importance and of fundamental character. The second is universally accepted, though there are striking differences in the extent to which it is used in different national systems. The third is claimed by most States, regarded with misgivings in a few, and generally ranked as the basis for an auxiliary competence. The fourth is widely though by no means universally accepted as the basis of an auxiliary competence, except for the offence of piracy, with respect to which it is the generally recognized principle of jurisdiction. The fifth, asserted in some form by a considerable number of States and contested by others, is admittedly auxiliary in character and is probably not essential for any State if the ends served are adequately provided for on other principles.” Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 AMERICAN JOURNAL OF INTERNATIONAL LAW (SUPP.) 439, 445 (1935) (emphasis added). 33 For example, several courts have identified an “objective territorial” principle which classifies within the territorial principle cases which would ordinarily be thought to exemplify the impact or protective principle, Rivard v. United States, 375 F.2d 882, 886(5th Cir. 1967); United States v. Pizzarusso, 388 F.2d 8, 10(2d Cir. 1968); Chua Han Mow v. United States, 730 F.2d 1308, 1312(9th Cir. 1984); see also, United States v. Clark, 435 F.3d 1100, 1106-107 (9th Cir. 2006)(prosecution under 18 U.S.C. 2423(c) consistent with the “nationality principle”). 34 “The rules in this Restatement governing jurisdiction to prescribe, as well as those governing jurisdiction to adjudicate and to enforce, reflect development in the law as given CRS-12 While the Restatement’s views carry considerable weight with both Congress and the courts,35 the courts have traditionally ascertained the extent to which international law would allow extraterritorial application of a particular law by examining American case law, a source which historically has provided a more permissive view of extraterritorial jurisdiction than either the Restatement or the Harvard study.36 effect by United States courts. The courts appear to have considered these rules as a blend of international law and domestic law, including international ‘comity’ as part of that law. Increasing, however, these rules, notably the principle of reasonableness (§§403, 421, 431), have been followed by other states and their courts and by international tribunals, and have emerged as principles of customary law.” American Law Institute, RESTATEMENT OF THE LAW THIRD: THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1985). Section 403 of the Restatement provides: “(2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate: (a) the link of the activity to the territory of the regulated state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; (b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; (d) the existence of justified expectations that might be protected or hurt by the regulation; (e) the importance of the regulation to the international political, legal, or economic system; (f) the extent to which the regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by another state. “(3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, Subsection (2); a state should defer to the other state if that state's interest is clearly greater.” The remainder of section 403 and other portions of the Restatement are contained in Appendix IV. 35 36 See e.g., United States v. MacAllister, 160 F.3d 1304, 1308 (11th Cir. 1998). Gibney, The Extraterritorial Application of U.S. Law: The Perversion of Democratic Governance, the Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles, 19 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW 297 (1996); Abramovsky, Extraterritorial Jurisdiction: The United States Unwarranted Attempt to Alter International Law in United States v Yunis, 15 YALE JOURNAL OF INTERNATIONAL LAW 121 (1990); Exporting United States Drug Law: An Example of the International Legal Ramifications of the “War on Drugs,” 1992 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 165. CRS-13 Current Extent of American Extraterritorial Criminal Jurisdiction Federal Law. Express. Congress’ declaration that a particular statute is to apply outside of the United States is the most obvious evidence of an intent to create extraterritorial jurisdiction.37 Congress has expressly provided for the extraterritorial application of federal criminal law most often by outlawing various forms of misconduct when they occur “within the special maritime and territorial jurisdiction of the United States.”38 The concept of special maritime and territorial jurisdiction, if not the phrase, dates from the First Congress39 and encompasses navigable waters and federal enclaves within the United States as well as areas beyond the territorial confines of the United States. Although the concept of the special maritime and 37 Appendix I contains a list of the citations to such federal statutes. 38 “The term ‘special maritime and territorial jurisdiction of the United States’, as used in this title, includes: “(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. “(2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line. “(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. “(4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States. “(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, District, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. “(6) [text at n. 41 infra]. “(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. “(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. “(9) [text at n. 42, infra]. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title,” 18 U.S.C. 7. 39 1 Stat. 113 (1790)(outlawing manslaughter committed in a place “under the sole and exclusive jurisdiction of the United States” and murder committed “upon the high seas”). CRS-14 territorial jurisdiction of the United States once embraced little more than places over which the United States enjoyed state-like legislative jurisdiction, U.S. navigable territorial waters, and vessels of the United States, its application has been statutorily expanded. It now supplies an explicit basis for the extraterritorial application of various federal criminal laws relating to: ! air travel (special aircraft jurisdiction of the United States);40 ! customs matters (customs waters of the U.S.);41 ! U.S. spacecraft in flight;42 40 “In this chapter— “(1) ‘aircraft in flight’ means an aircraft from the moment all external doors are closed following boarding—(A) through the moment when one external door is opened to allow passengers to leave the aircraft; or (B) until, if a forced landing, competent authorities take over responsibility for the aircraft and individuals and property on the aircraft. “(2) ‘special aircraft jurisdiction of the United States’ includes any of the following aircraft in flight: (A) a civil aircraft of the United States. (B) an aircraft of the armed forces of the United States. (C) another aircraft in the United States. (D) another aircraft outside the United States— (i) that has its next scheduled destination or last place of departure in the United States, if the aircraft next lands in the United States; (ii) on which an individual commits an offense (as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft) if the aircraft lands in the United States with the individual still on the aircraft; or (iii) against which an individual commits an offense (as defined in subsection (d) or (e) of article I, section I of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation) if the aircraft lands in the United States with the individual still on the aircraft. (E) any other aircraft leased without crew to a lessee whose principal place of business is in the United States or, if the lessee does not have a principal place of business, whose permanent residence is in the United States. “(3) an individual commits an offense (as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft) when the individual, when on an aircraft in flight— (A) by any form of intimidation, unlawfully seizes, exercises control of, or attempts to seize or exercise control of, the aircraft; or (B) is an accomplice of an individual referred to in subclause (A) of this clause,” 49 U.S.C. 46501. 41 “The term ‘customs waters’ means, [1] in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, [2] in the case of every other vessel, the waters within four leagues of the coast of the United States,” 19 U.S.C. 1709(c). 42 18 U.S.C. 7(6)(“Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard”). CRS-15 ! overseas federal facilities and overseas residences of federal employees;43 ! members of U.S. armed forces overseas and those accompanying them;44 ! overseas human trafficking and sex offenses by federal employees, U.S. military personnel, or those accompanying them.45 The obligations and principles of various international treaties, conventions, or agreements to which the United States is a party supply the theme for a second 43 “With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act – (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities,” 18 U.S.C. 7(9). 44 “(a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States – (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense. “(b) No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated. “(c) Nothing in this chapter may be construed to deprive a court-martial, military commission, provost court, or other military tribunal of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by a court-martial, military commission, provost court, or other military tribunal. “(d) No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless – (1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter,” 18 U.S.C. 3261. 45 “(a) Whoever, while employed by or accompanying the Federal Government outside the United States, engages in conduct outside the United States that would constitute an offense under chapter 77 [relating to peonage, slavery and trafficking] or 117 [relating to transportation for illegal sexual activity] of this title if the conduct had been engaged in within the United States or within the special maritime and territorial jurisdiction of the United States shall be punished as provided for that offense. “(b) No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated,” 18 U.S.C. 3271. CRS-16 category of federal criminal statutes with explicit extraterritorial application.46 The range of these treaty-based federal crimes differ. Some have extraterritorial application only when the offender is an American.47 Some address misconduct so universally condemned that they fall within federal jurisdiction regardless of any other jurisdictional considerations as long as the offender flees to the United States, is brought here for prosecution, or is otherwise “found in the United States” after the commission of the offense.48 Some enjoy extraterritorial application under any of a number of these and other explicit jurisdictional circumstances.49 Members of a final category of explicit extraterritorial federal criminal statutes either cryptically declare that their provisions are to apply overseas50 or describe a series of jurisdictional circumstances under which their provisions have extraterritorial application, not infrequently involving the foreign commerce of the United States in conjunction with other factors.51 Implied. The natural implications of Bowman52 and Ford53 are that a substantial number of other federal crimes operate overseas by virtue of the implicit intent of Congress. In fact, the lower federal courts have read Bowman and Ford to suggest that American extraterritorial criminal jurisdiction includes a wide range of statutes designed to protect federal officers, employees and property, to prevent smuggling and to deter the obstruction or corruption of the overseas activities of federal departments and agencies.54 They have held, for instance, that the statute 46 E.g., 18 U.S.C. 1203 (hostage taking); 18 U.S.C. 175 (biological weapons); 18 U.S.C. 1091 (genocide); 18 U.S.C. ch.113C (torture). 47 E.g.,18 U.S.C. 1091(d)(2)(“the alleged offender is a national of the United States. . . “). 48 E.g., 18 U.S.C. 2340A(b)(2)(“There is jurisdiction over the activity prohibited in subsection(a) if . . .(2) the alleged offender is present in the Untied States, irrespective of the nationality of the victim or alleged offender”). 49 E.g., 18 U.S.C. 1203 (It is not an offense under this section [relating to hostage taking] if the conduct required for the offense occurred outside the United States unless – (A) the offender or the person seized or detained is a national of the United States; (B) the offender is found in the United States; or (C) the governmental organization sought to be compelled is the Government of the United States”). 50 E.g., 18 U.S.C. 351(i)(relating to crimes of violence committed against Members of Congress, Supreme Court justices, and certain senior executive officials) (“There is extraterritorial jurisdiction over the conduct prohibited by this section”). 51 E.g., 18 U.S.C. 175c (variola virus)(committed by or against a U.S. national; committed in or affecting interstate or foreign commerce; committed against federal property). 52 United States v. Bowman, 260 U.S. 94 (1922)(the nature and purpose of a statute indicate whether Congress intended it to apply outside of the United States). 53 Ford v. United States, 273 U.S. 593, 623 (1927)(“a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done”). 54 United States v. MacAllister, 160 F.3d 1304, 1308 n.8 (11th Cir. 1998)(“On authority of Bowman, courts have routinely inferred congressional intent to provide for extraterritorial jurisdiction over foreign offenses that cause domestic harm”). CRS-17 outlawing the assassination of Members of Congress may be applied against an American for a murder committed in a foreign country,55 and that statutes prohibiting the murder or kidnapping of federal law enforcement officials apply in other countries even if the offenders are not Americans,56 and even if the offenders incorrectly believed the victims were federal law enforcement officers.57 They have also discovered extraterritorial jurisdiction appropriate to (1) cases where aliens have attempted to defraud the United States in order to gain admission into the United States;58 (2) to false statements made by Americans overseas;59 (3) to the theft of federal property by Americans abroad;60 and (4) to counterfeiting, forging or otherwise misusing federal documents or checks overseas by either Americans or aliens.61 A logical extension would be to conclude that statutes enacted to prevent and punish the theft of federal property apply world-wide. And there seems to be no obvious reason why statutes protecting the United States from intentional deprivation of its property by destruction should be treated differently than those where the loss is attributable to theft.62 Finally, there are the “piggyback statutes” whose provisions are necessarily related to some other crime. An individual may be guilty of conspiracy to violate a federal law within the United States notwithstanding the fact he never enters the United States; it is sufficient that he is a member of a conspiracy to violate the 55 United States v. Layton, 855 F.2d 1388, 1395-397 (9th Cir. 1988) (At the time of the murder of Congressman Ryan for which Layton was convicted the statute was silent as to its extraterritorial application; several years later Congress added an explicit extraterritorial provision, 18 U.S.C. 351(i)). 56 United States v. Felix-Guiterrrez, 940 F.2d 1200, 1204-206 (9th Cir. 1991); United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984). The statutes which condemn acts of violence against officers and officials of the United States, which contain no express provisions concerning their geographical application and which, if the same logic evidenced in the cases noted above is followed, are listed in appendix II. 57 United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994). 58 United States v. Pizzarusso, 388 F.2d 8, 9-10 (2d Cir. 1968); Rocha v. United States, 288 F.2d 545, 549 (9th Cir. 1961); United States v. Khale, 658 F.2d 90, 92 (2d Cir. 1981); United States v. Castillo-Felix, 539 F.2d 9, 12-3 (9th Cir. 1976). 59 United States v. Walczak, 783 F.2d 852, 854-55 (9th Cir. 1986). 60 United States v. Cotten, 471 F.2d. 744, 749 (9th Cir. 1973). 61 United States v. Birch, 470 F.2d 808, 810-11 (4th Cir. 1972); United States v. Fernandez, 496 F.2d 1294, 1296 (5th Cir. 1954); United States v. Aguilar, 756 F.2d 1418, 1425 (9th Cir. 1985); United States v. Castillo-Felix, 539 F.2d 9, 12-3 (9th Cir. 1976). 62 The theft of federal property statutes appear in appendix II.G.; the destruction of federal property in II.D.; the false statement provisions in appendix II.F; and counterfeiting sections in appendix II.H. CRS-18 American law.63 The rationale should apply with equal force to the case of any accessory to the violation of any federal crime.64 Nevertheless, a few recent statutes make the coverage of piggyback offenses explicit.65 A number of statutes condemn both a substantive offense and the piggy-back crimes (conspiracy or attempt) associated with the substantive offense. A statute which applies overseas carries with it the application of provisions which prohibit attempts or conspiracies to violate the underlying statute.66 Maritime Drug Law Enforcement Act The Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C.App. 19011903, is somewhat unusual in that it authorizes extraterritorial coverage of federal criminal law predicated on nothing more than the consent of the nation with primary criminal jurisdiction. MDLEA outlaws the manufacture, distribution, or possession with intent to manufacture or distribute controlled substances aboard vessels within the jurisdiction of the United States, 46 U.S.C.App. 1903. It defines vessels within the jurisdiction of the United States not only in terms of ordinary U.S. maritime jurisdiction, but envelops the maritime jurisdiction of other countries as long as they have consented to the application of the U.S. law aboard the vessel.67 The definition 63 United States v. MacAllister, 160 F.3d 1304, 1307-308 (11th Cir. 1998); Ford v. United States, 273 U.S. 593, 620-24 (1927); United States v. Inco Bank & Trust Corp., 845 F.2d 919, 920 (11th Cir. 1988); United States v. Manuel, 371 F.Supp.2d 404, 409 (S.D.N.Y. 2005). 64 United States v. Felix-Gutierrez, 940 F.2d 1200, 1204-207 (9th Cir. 1991)(accessory after the fact violation committed overseas). The piggyback offenses appear in Appendix II.I. 65 E.g., 18 U.S.C. 2339D(b)(6) (relating to receipt of military training from a foreign terrorist organization)(“(b) Extraterritorial jurisdiction – there is extraterritorial federal jurisdiction over an offense under this section. There is jurisdiction over an offense under subsection (a) if . . . (6) an offender aids or abets any person over whom jurisdiction exists under this paragraph in committing an offense under subsection (a) or conspires with any person over whom jurisdiction exist under this paragraph to commit an offense under subjection (a)”). 66 United States v. Davis, 905 F.2d 245, 249 (9th Cir. 1990); United States v. Villanueva, 408 F.3d 193, 197-99 (5th Cir. 2005). 67 “For purposes of this section, a ‘vessel subject to the jurisdiction of the United States’ includes – (A) a vessel without nationality; (B) a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the 1958 Convention on the High Seas; (C) a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States; (D) a vessel located within the customs waters of the United States; (E) a vessel located in the territorial waters of another nation, where the nation consents to the enforcement of United States law by the United States; and (F) a vessel located in the contiguous zone of the United States, as defined in Presidential Proclamation 7219 of September 2, 1999, and (i) is entering the United States, (ii) has departed the United States, or (iii) is a hovering vessel as defined in section 1401 of Title 19. “Consent or waiver of objection by a foreign nation to the enforcement of United States law by the United States under subparagraph (C) or (E) of this paragraph may be obtained by radio, telephone, or similar oral or electronic means, and is conclusively proved CRS-19 also encompasses “vessels without nationality” sometimes referred to as “stateless” vessels, that is, vessels for which no national registry is effectively claimed.68 MDLEA provides the basis for Coast Guard drug interdiction efforts in the Caribbean and in the eastern Pacific off the coast of Central and South America.69 The courts have concluded that MDLEA constitutes a valid exercise of Congress’ constitutional authority to define and punish offenses against the law of nations, U.S. Const. Art.I, §8, cl.10.70 They are divided over whether the prosecution must show some nexus between the United States and the offense71 and over the application of the subsection of the Act that assigns jurisdictional determinations to the court rather than to the jury, 46 U.S.C.App. 1903(f).72 by certification of the Secretary of State or the Secretary’s designee,” 46 U.S.C.App. 1903(c)(1)(emphasis added). 68 “For purposes of this section, a ‘vessel without nationality’ includes – (A) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality,” 46 U.S.C.App. 1903(c)(2). 69 E.g., United States v. Olave-Valencia, 371 F.Supp.2d 1224, 1226 (S.D. Cal. 2005)(Coast Guard interdiction 250 miles from the Honduras/Costa Rica border); United States v. Valencia-Aguirre, 409 F.Supp.2d 1358, 1360 (M.D.Fla. 2006)(Coast Guard interdiction from a Navy frigate off the Coast of Colombia); United States v. Perlaza, 439 F.3d 1149, 1152 (9th Cir. 2006) (Navy and Coast Guard ships engaged in drug interdiction in Pacific off the coasts of Ecuador, Colombia and Peru). 70 United States v. Ledesma-Cuesta, 347 F.3d 527, 532 (3d Cir. 2003); United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th Cir. 2003). 71 United States v. Suerte, 291 F.3d 366, 375 (5th Cir. 2002); United States v. Cardales, 168 F.3d 548, 552-53 (1st Cir. 1999); United States v. Martinez-Hidalgo, 993 F.2d 1052, (3d Cir. 1993) contra, United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998). 72 United States v. Perlaza, 439 F.3d 1149, 1165-166 (9th Cir. 2006)(“After hearing all the evidence as to its status at a pretrial hearing, the district court determined that the Go-Fast was a stateless vessel. We find that by not submitting this issue to the jury, the district court erred. The evidence relating to the Go-Fast’s statelessness presents precisely the kind of disputed factual question that Smith [United States v. Smith, 282 F.3d 758 (9th Cir. 2002)] requires a jury to resolve”); contra, United States v. Tinoco, 304 F.3d 1088, 1110-111 and n.22 (11th Cir. 2002)(“Hence, although fact-bound determinations may be involved, that does not automatically mean that the 46 U.S.C.App. 1903 jurisdictional issue has to be decided by the jury. . . Consequently, even if questions under the 46 U.S.C.App. 1903 jurisdictional requirement may have a factual component, that component does not have to be resolved by the jury, given that, as we have explained, the jurisdictional requirement goes only to the court’s subject matter jurisdiction and does not have to be treated as an element of a MDLEA substantive offense. . . We also note that our rejection of the appellant’s argument concerning the fact-bound nature of 46 U.S.C.App. 1903 jurisdictional determinations appears to put us in conflict with one of our sister circuits. . . In United States v. Smith . . . [t]he Ninth Circuit concluded that the district court erred by taking the issue of whether the §1903 jurisdictional requirement had been met completely away from the jury”). CRS-20 State Law. State criminal laws are less likely to apply overseas than federal laws.73 State law produces fewer instances where a statute was clearly enacted with an eye to its application overseas and fewer examples where frustration of legislative purpose is the logical consequence of purely territorial application. The Constitution seems to have preordained this result when it vested responsibility for protecting American interests and fulfilling American responsibilities overseas in the federal government.74 The primacy of the federal government in foreign affairs might suggest that the Constitution precludes the application of state law in other countries, but the commentators recognize a limited power of the states to enact law governing conduct outside the United States. Obviously, Congress may, by preemptive action, extinguish the legislative authority of a state in any area over which Congress has plenary powers. And the Supremacy Clause also renders treaties to which the United States is a party binding upon the states and therefore beyond their legislative reach.75 Beyond the constitutional limitations, however, “the question . . . is one of whether the state actually intended to legislate extraterritorially, not whether it has the power 73 The comparable question under state law is the extent to which a state’s criminal law applies to activities occurring in another state. 74 See e.g., U.S. Const. Art.II, §2, cl.2 (“[t]he President . . . shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, [and] other public ministers and consuls . . . .”); U.S. Const. Art.II, §3, cl.3 (“. . . he shall receive Ambassadors and other public ministers. . . .”); U.S. Const. Art.II, §2, cl.1 (“[he] shall be commander in chief of the Army and Navy of the United States . . . .”); U.S.Const. Art.I, §8, cl.18 (“[t]he Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution [its] powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof”); U.S. Const. Art.I, §8, cl.10 (“[t]he Congress shall have power . . . to define and punish piracies and felonies committed on the high seas, and offences against the law of nations”); U.S. Const. Art.I, §8, cl.3 (“[t]he Congress shall have power . . . to regulate commerce with foreign nations . . . .”); U.S.Const. Art.I, §8, cl.1 (“[t]he Congress shall have the power to lay and collect . . . duties, imposts and excises, to pay debts and provide for the common defense and general welfare . . . .”); U.S. Const. Art.I, §8, cls.11, 12, 13, 14 (“[t]he Congress shall have the power . . . to declare war. . . ; to raise and support armies . . . ; to provide and maintain a navy . . . ; [and] to make rules for the government and regulation of the land and naval forces. . . .”). 75 “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding,” U.S.Const. Art.IV, cl.2. CRS-21 to do so.”76 The states have chosen to make their laws applicable beyond their boundaries in only a limited set of circumstances and ordinarily only in cases where there is some clear nexus to the state.77 Perhaps the most common state statutory provision claiming state extraterritorial criminal jurisdiction is one which asserts jurisdiction in cases where some of the elements of the offense are committed within the state or others are committed outside it.78 Another common claim is where an individual outside the state attempts or conspires to commit a crime within the state;79 or one 76 George, Extraterritorial Application of Penal Legislation, 64 MICHIGAN LAW REVIEW 609, 617 (1966); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §402 comment k, n.5 (1987). 77 The Model Penal Code exemplifies most of the grounds upon which various states base their extraterritorial criminal jurisdiction and appears in appendix III. The Florida special maritime jurisdiction statute is also appended because it is one of the few that goes further than to claim jurisdiction over conduct committed upon the land and waters of the state and the air over it, contrast Fla.Stat.Ann. §910.006, with, Ariz.Rev.Stat.Ann. §13-108(C); Hawaii Rev.Stat. §701-106(5); Kan.Stat.Ann. §21-3104(5); Mont.Code Ann. §46-2-101(4); N.H.Rev.Stat.Ann. §625:4(IV); N.J.Stat. Ann. §2C:1-3(e); N.Y. Crim.Proc.Law §20.10(1); Ohio Rev.Code §2901.11(C); Ore. Rev.Stat. §131.205; Pa.Stat.Ann. tit.18 §102(d); Tex. Penal Code §1.04(d); Wis. Stat.Ann. §939.03(2). 78 *Ala.Code §§15-2-3, 15-2-4; *Alaska Stat. §12.05.010; Ariz.Rev.Stat.Ann. §13108(A)(1); Ark.Code Ann. §5-1-104(a)(1); Cal.Penal Code §27(a)(1); Colo.Rev. Stat. §18-1201(1)(a); Del.Code tit.11 §204(a)(1); Fla.Stat.Ann. §910.005(1)(a); Ga.Code §17-2-1(b)(1); Hawaii Rev.Stat. §701-106(1)(a); Idaho Code §18-202(1); Ill.Comp.Stat.Ann. ch.720, §5/15(a)(1); Ind. Code Ann. §35-41-1-1(b)(1); Iowa Code Ann. §803.1(1)(a); Kan.Stat.Ann. §213104; Ky.Rev.Stat. §500.060(1)(a); La.Code Crim.Pro. art. 611; Me.Rev.Stat.Ann. tit.17-A §7(1)(A); Minn.Stat.Ann. §609.025(1); *Miss.Code §§99-11-15, 99-11-17; Mo.Ann. Stat. §541.191(1)(1); Mont.Code Ann. §46-2-101; *Nev.Rev. Stat. §§170. 015, 170.020; N.H. Rev.Stat.Ann. §625:4(I)(a); N.J.Stat.Ann. §2C:1-3(a)(1); N.Y.Crim. Pro.Law §20.20(1)(a); *N.C.Gen.Stat. §15A-134; *N.D.Cent.Code §29-03-01; Ohio Rev.Code §2901.11(A)(1); Okla. Stat.Ann. tit.21 §151(1); Ore.Rev.Stat. §131.215(1); Pa.Stat.Ann. tit. 18 §102(a)(1); *S.D.Codified Laws §23A-16-2; *Tenn.Code Ann. §39-11-103(b); Tex. Penal Code §1.04 (a)(1); Utah Code Ann. §76-1-201(1)(a); Vt.Stat.Ann. tit.13 §2; Wash.Rev. Code Ann. §9A.04.030; Wis.Stat.Ann. §939.03 (1)(a). *Statutes which phrase the extraterritorial jurisdiction statement in terms of offenses commenced in one state and consummated in another state, rather than in terms of elements. 79 Ariz.Rev.Stat.Ann. §13-108(A)(2)(attempt and conspiracy); Ark.Code Ann.§5-1104(a)(2),(3)(attempt and conspiracy); Colo. Rev.Stat. §18-1-201(1)(b),(c)(attempt and conspiracy); Del.Code tit.11 §204(a)(2)(conspiracy); Fla.Stat.Ann. §910.005 (1)(b),(c) (attempt and conspiracy); Ga.Code §17-2-1(b)(2)(attempt); Hawaii Rev.Stat. §701106(1)(b),(c)(attempt and conspiracy); Ill.Comp.Stat.Ann. ch.720 §5/1-5(a)(2),(3) (attempt and conspiracy); Ind.Code Ann. §35-41-1-1(b)(2),(3)(attempt and conspiracy); Iowa Code Ann. §803.1(1)(b),(c)(attempt and conspiracy); Kan.Stat.Ann. §21-3104(1)(b),(c) (attempt and conspiracy); Ky.Rev.Stat. §500.060(1)(b),(c) (attempt and conspiracy); Me.Rev.Stat. Ann. tit.17-A, §7(1)(B), (C) (attempt and conspiracy); Mo.Ann.Stat. §541.191(1)(2) (attempt and conspiracy); Mont.Code Ann. §46-2-101(b)(attempt); N.H.Rev. Stat.Ann. §625:4(I)(b), (c) (attempt and conspiracy); N.J.Stat.Ann. §2C:1-3(a)(2),(3) (attempt and conspiracy); Ohio Rev.Code §2901.11 (A)(3) (attempt and conspiracy); Ore.Rev.Stat. §131.215(2), (3) (attempt and conspiracy); Pa. Stat.Ann. tit.18 §102(a)(2), (3) (attempt and CRS-22 within the state attempts or conspires to commit a crime beyond its boundaries80. Still others define the state’s extraterritorial jurisdiction to include instances where the victim of homicide, fatally wounded outside of the state, dies within it;81 where property stolen elsewhere is brought into the state;82 or where conduct outside the state constitutes the failure to comply with a legal duty imposed by state law.83 Investigation and Prosecution Although a substantial number of federal criminal statutes have undisputed extraterritorial scope and a great many more have apparent extraterritorial range, prosecutions are few. Investigators and prosecutors face legal, practical, and often diplomatic obstacles that can be daunting. Some of these are depicted in the conspiracy); Tex.Penal Code §1.04(a)(2), (3) (attempt and conspiracy); Utah Code Ann. §76-1-201(1)(b), (c) (attempt and conspiracy); Wis.Stat.Ann. §939.03(1)(b)(conspiracy). 80 Ariz.Rev.Stat.Ann. §13-108(A)(3)(attempt and conspiracy); Ark.Code Ann.§5-1-104 (a)(4)(attempt and conspiracy); Colo. Rev.Stat. §18-1-201(1)(d)(attempt and conspiracy); Del.Code tit.11 §204(a)(3)(attempt and conspiracy); Fla.Stat.Ann. §910.005 (1)(d)(attempt and conspiracy); Ga.Code §17-2-1(b)(3)(attempt); Hawaii Rev.Stat. §701-106(1)(d) (attempt and conspiracy); Ill.Comp.Stat.Ann. ch.720 §5/1-5(1)(d)(attempt and conspiracy); Ind.Code Ann. §35-41-1-1(b)(4)(attempt and conspiracy); Iowa Code Ann. §803.1(1)(e) (attempt and conspiracy); Ky.Rev.Stat. §500.060(1)(d)(attempt and conspiracy); Me.Rev.Stat.Ann. tit.17A, §7(1)(D) (attempt and conspiracy); Mo.Ann.Stat. §541.191(1)(3)(attempt and conspiracy); Mont.Code Ann. §46-2-101(c)(attempt and conspiracy); N.H.Rev. Stat.Ann. §625:4(I) (c); N.J.Stat.Ann. §2C:1-3(a)(4) (attempt and conspiracy); Ohio Rev.Code §2901.11(A)(2) (attempt and conspiracy); Ore.Rev.Stat. §131.215(4) (attempt and conspiracy); Pa. Stat.Ann. tit.18 §102(a)(4)(attempt and conspiracy); R.I.Gen.Laws §11-1-7 (conspiracy); Tex.Penal Code §1.04(a) (3); Utah Code Ann. §76-1-201(1)(d)(attempt and conspiracy). 81 Ariz.Rev.Stat.Ann. §13-108(B); Ark.Code Ann. §5-1-104(b); Colo.Rev.Stat. §18-1201(2); Del.Code tit.11 §204(c); Fla.Stat.Ann. §910.005(2); Ga.Code §17-2-1(c); Hawaii Rev.Stat. §701-106(4); Ill.Comp.Stat.Ann. ch.720 §5/1-5(b); Ind.Code Ann. §35-41-1-1(c); Iowa Code Ann. §803.1(2); Kan.Stat.Ann. §21-3104(2); Ky.Rev.Stat. §500.060(3); La.Code Crim.Pro. art. 611; Me. Rev.Stat.Ann. tit.17-A §7(3); Miss.Code §99-11-21; Mo. Ann.Stat. §541.191(2); Mont.Code Ann. §46-2-101(2); N.H.Rev.Stat.Ann. §625:4 (III); N.J.Stat. Ann.§2C:1-3(d); N.Y.Crim. Pro.Law §20.20(2)(a); Ohio Rev.Code §2901.11 (B); Ore.Rev. Stat. §131.235; Pa.Stat. Ann. tit.18 §102(c); Tex.Penal Code §1.04(b); Utah Code Ann. §761-201(3). 82 Ala.Code §15-2-5; Cal.Penal Code §27(a)(2); Idaho Code §18-202(2); Miss.Code §9911-23; N.D.Cent.Code. §29-03-01.1; Ohio Rev.Code §2901.11(A)(5); Okla.Stat.Ann. tit.21 §151(2); R.I.Gen.Laws §12-3-7; Wash.Rev.Code Ann. §9A.04.030(2); Wis.Stat.Ann. §939.03(1)(d). 83 Ariz.Rev.Stat.Ann. §13-108(A)(4); Ark.Code Ann. §5-1-104(a)(5); Colo. Rev.Stat. §181-201(3); Del.Code tit.11 §204(4); Fla.Stat.Ann. §910.005(3); Ga. Code §17-2-1(d); Hawaii Rev.Stat. §701-106(1)(e); Ill.Comp.Stat.Ann. ch.720 §5/1-5(c); Ind. Code Ann. §35-41-11(b)(5); Iowa Code Ann. §803.1(3); Kan.Stat.Ann. §21-3104 (3); Ky.Rev.Stat. §500.060(1) (e); Me.Rev.Stat.Ann. tit.17-A §7(1)(E); Mo.Ann.Stat. §541.191(1)(4); Mont.Code Ann. §46-2-101(3); N.H.Rev.Stat.Ann. §625:4(I) (e); N.J.Stat.Ann. §2C:1-3(a)(5); Ohio Rev. Code §2901.11(A)(4); Ore.Rev.Stat. §131.215(5); Pa.Stat.Ann. tit.18 §102(a)(5); Tex.Penal Code §1.04(c); Utah Code Ann. §76-1-201(4). CRS-23 description that follows of some of procedural aspects of the American investigation and prosecution of a crime committed abroad. With respect to diplomatic concerns, the Restatement observes: It is universally recognized, as a corollary of state sovereignty, that officials of one state may not exercise their functions in the territory of another state without the latter’s consent. Thus, while a state may take certain measures of nonjudicial enforcement against a person in another state, . . . its law enforcement officers cannot arrest him in another state, and can engage in criminal investigation in that state only with that state’s consent. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §432 cmt. b (1986). Failure to comply can result in strong diplomatic protests, liability for reparations, and other remedial repercussions, to say nothing of the possible criminal prosecution of offending foreign investigators.84 Consequently, investigations within another country of extraterritorial federal crimes without the consent or at least acquiescence of the host country are extremely rare. Mutual Legal Assistance Treaties and Agreements. Congress has endorsed diplomatic efforts to increase multinational cooperative law enforcement activities. The United States has over fifty mutual legal assistance treaties in force.85 Their benefits are typically available to state and federal law 84 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §432 cmt. c and rptrs.’ n.1 (1986) (“In a case that received wide attention, two French customs officials traveled to Switzerland on several occasions in 1980 to interrogate a former official of a Swiss bank, with a view to gaining information about French citizens believed to be hiding funds from the French tax and exchange control authorities. The person interrogated informed the Swiss federal prosecutor’s office, which caused the Swiss police to arrest the French officials on their next visit. The officials were convicted of committing prohibited acts in favor of a foreign state, as a well as a of violation of the Swiss banking and economic intelligence laws. Even though the two French defendants were engaged in official business on behalf of the government of a friendly foreign state, they were given substantial sentences”). 85 See generally, 3 Abbell & Ristau, INTERNATIONAL JUDICIAL ASSISTANCE: Criminal – Obtaining Evidence, ch.4 (1991). Jurisdictions with whom the United States has a mutual legal assistance treaty in force include Antigua and Barbuda, Argentina, Australia, Austria, the Bahamas, Barbados, Belize, Belgium, Brazil, Canada, Cyprus, the Czech Republic, Dominica, Egypt, Estonia, France, Greece, Grenada, Hong Kong, Hungary, Israel, Italy, Jamaica, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Mexico, Morocco, the Netherlands, Panama, the Philippines, Poland, Romania, Russia, St. Kitts & Nevis, St. Lucia, St. Vincent & the Grenadines, South Africa, Spain, Switzerland, Thailand, Trinidad and Tobago, Turkey, the United Kingdom, the Cayman Islands, Anguilla, the British Virgin Islands, Montserrat, the Turks and Caicos Islands, and Uruguay, United States Department of State, Mutual Legal Assistance (MLAT) and Other Agreements, available on July 5, 2005 at [http;//travel.state/gov/law/info/judicial/judicial_690.html]. In addition although not yet in force, the United States has signed MLATs with: Colombia, the European Union, Finland, Germany, India, Ireland, Japan, Sweden, and Venezuela, Id. CRS-24 enforcement investigators though the Department of Justice’s Office of International Affairs.86 Initially negotiated to overcome impediments posed by foreign bank secrecy laws,87 the treaties generally offer more than the collection and delivery of documents. They ordinarily provide similar clauses, with some variations, for locating and identifying persons and items;88 service of process;89 executing search Of course, this means that the United States has no such agreement with a majority of the nations of the world. 86 28 C.F.R. §0.64-1; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Egypt, Arts. 1(3), S.Treaty Doc. 106-19 (“Assistance shall be provided in connection with any conduct that is the subject of the investigation, prosecution, or proceeding under the laws of the Requesting State); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.Greece, Arts. 1(3), S.Treaty Doc. 106-18; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Arts. 1(3), S.Treaty Doc. 106-20; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Arts. 1(3),S.Treaty Doc. 106-35; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-S.Afr., Arts. 1(3), S.Treaty Doc. 106-36. Under a few agreements, treaty benefits may not be available during preliminary investigations or for want of dual criminality, e.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.Fr., Art. 1, S.Treaty Doc. 106-7 (“. . . mutual assistance in investigations and proceedings in respect of criminal offenses the punishment of which, at the time of the request for assistance, is a matte for the judicial authorities of the Requesting State”); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Arts. 1, S.Treaty Doc. 107-16 (“Assistance shall be provided without regard to whether the conduct that is the subject of the investigation, prosecution, or proceeding in the Requesting State would constitute an offense under the laws of the Requested State, except that the Requested State may refuse to comply in whole or in part with a request for assistance to the extent that the conduct would not constitute an offense under its laws and the execution of the request would require a court order for search and seizure or other coercive measures”). 87 Ellis & Pisani, The United States Treaties on Mutual Assistance in Criminal Matters: A Comparative Analysis, 19 INTERNATIONAL LAWYER 189, 196-98 (1985); Nadelmann, Negotiations in Criminal Law Assistance Treaties, 33 AMERICAN JOURNAL OF COMPARATIVE LAW 467, 470-74 (1985). 88 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Art. 13, S. Treaty Doc. 106-16 (“If the Requesting State seeks the location or identity of persons or items in the Requested State, the Requested State shall use its best efforts to ascertain the location or identity”); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Greece, Art. 13, S.Treaty Doc. 106-18; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Egypt, Art. 12, S.Treaty Doc. 106-19; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Rom., Art. 13, S.Treaty Doc. 106-20; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Arts. 13, S.Treaty Doc. 106-35; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-S.Afr., Art. 14, S.Treaty Doc. 106-36. 89 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Fr., Art. 15, S. Treaty Doc. 106-17 (“The Requested State shall serve procedural documents and judicial decisions sent to it for this purpose by the Requesting State. . . .”); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Art. 14, S.Treaty Doc. 106-16; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Greece, Art. 14, S.Treaty Doc. 106-18; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Egypt, Art. 13, S.Treaty Doc. 106-19; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Rom., Art. 14, S.Treaty Doc. 106-20; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Art. 14, S.Treaty Doc. 106-35; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-S.Afr., Art. 15, S.Treaty Doc. 106-36. CRS-25 warrants;90 taking witness depositions;91 persuading foreign nationals to come to the United States voluntarily to present evidence here,92 and forfeiture related seizures.93 Letters Rogatory. Witness depositions may be taken in a foreign country cooperatively using letters rogatory in case of nations with whom the United States has no MLAT. Letters rogatory involve the formal request from the courts of one country to those 90 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Greece, Art. 15, S.Treaty Doc. 106-18 (2000); (“The Requested State shall execute a request that it search for, seize, and transfer any item to the Requesting State if the request justifies such action under the laws of the Requested State. . . .”); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Art. 15, S.Treaty Doc. 106-16; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Fr., Art. 10, S. Treaty Doc. 106-17; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Egypt, Art. 14, S.Treaty Doc. 106-19; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Rom., Art. 15, S.Treaty Doc. 106-20 (2000); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Art. 15, S.Treaty Doc. 106-35; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-S.Afr., Arts. 16 S.Treaty Doc. 106-36. 91 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Egypt, Art. 8, S.Treaty Doc. 106-19;(“A person in the Requested State from whom testimony or evidence is requested pursuant to this Treaty shall be compelled, if necessary, under the laws of the Requested State to appear and testify or produce items, including documents, records, and articles of evidence . . .”); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.Liech., Art. 8, S.Treaty Doc. 106-16; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Fr., Art. 9(2), S. Treaty Doc. 106-17; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Greece, Arts. 8, S.Treaty Doc. 106-18; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Rom., Art. 8, S.Treaty Doc. 106-20; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Art. 8, S.Treaty Doc. 106-35; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-S.Afr., Art. 9, S.Treaty Doc. 106-36. 92 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Belize, Art. 10, S.Treaty Doc. 106-19 (“1. When the Requesting State requests the appearance of a person in that State, the Requested State shall invite the person to appear before the appropriate authority in the Requesting State . . . ”); see also, Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Art. 10, S.Treaty Doc. 107-16 (person may be served or detained except as stated in the request); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Venez., Arts. X, S.Treaty Doc. 105-38. 93 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Cyprus, Art. 17(2), S.Treaty Doc. 106-35 (2000)(“The Parties shall assist each other to the extent permitted by tier respective laws in proceedings relating to the forfeiture of the proceeds and instrumentalities of offense, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. This may include action to temporarily immobilize the proceeds or instrumentalities pending further proceedings”); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Greece, Art. 17, S.Treaty Doc. 106-18 ; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Art. 17, S.Treaty Doc. 106-16; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Fr., Art. 11, S. Treaty Doc. 106-17; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Egypt, Art. 16, S.Treaty Doc. 106-19; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Rom., Art. 17, S.Treaty Doc. 106-20; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-S.Afr., Arts. 18, S.Treaty Doc. 106-36. CRS-26 of another asking that a witness’ statement be taken. The procedure is governed by statute and rule.94 It is often a resource of last resort. The State Department has emphasized that “[l]etters rogatory are a time consuming, cumbersome process and should not be utilized unless there are no other options available.”95 Moreover, assistance is a matter of discretion rather treaty obligation.96 Search and Seizure Abroad. Although the diversity of views reflected in the Supreme Court’s VerdugoUrquidez decision in199097 lends an air of uncertainty to the question, the relatively limited lower court case law has remained fairly uniform. Prior to VerdugoUrquidez, it seems to have been generally agreed that the Fourth Amendment governed the overseas search and seizure of the person or property of Americans by American law enforcement officials.98 On the other hand, neither the Fourth Amendment99 nor its exclusionary rule100 were considered applicable to overseas searches and seizures conducted by foreign law enforcement officials,101 except under two circumstances. The first exception covered foreign conduct which “shocked the conscience of the court.”102 The second reached foreign searches or seizures in which American law enforcement officials were so deeply involved as to constitute “joint 94 28 U.S.C. 1781, 1782; F.R.Civ.P. 28(b). 95 United States Department of State, Preparation of Letters Rogatory, available on July 5, 2006 at [http://travel.state.gov/law/info/judicial/judicial_683.html]. 96 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004); 3 Abbell & Ristau, INTERNATIONAL JUDICIAL ASSISTANCE: CRIMINAL §12-3-3(2) (1990). 97 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 98 United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir. 1979); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 157 (D.D.C. 1976). 99 Birdsell v. United States, 346 F.2d 775, 782 (5th Cir. 1965). 100 United States v. Janis, 428 U.S. 433, 455-56 n.31 (1976)(“. . . It is well established, of course, that the exclusionary rule, as a deterrent sanction, is not applicable where a private party or foreign government commits the offending act”); United States v. Callaway, 446 F.2d 753, 755 (3d Cir. 1971); United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir. 1978); United States v. Marzano, 537 F.2d 257, 269-71 (7th Cir. 1976); United States v. Rose, 570 F.2d 1358, 1361-362 (9th Cir. 1978); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983); United States v. Mount, 757 F.2d 1315, 1317-318 (D.C.Cir. 1985); United States v. Delaplane, 778 F.2d 570, 573 (10th Cir. 1985); United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir. 1986). 101 Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1969)(“Neither the Fourth Amendment to the United States Constitution nor the exclusionary rule of evidence, designed to deter federal officers from violating the Fourth Amendment, is applicable to the acts of foreign officials”). 102 United States v. Callaway, 446 F.2d 753, 755 (3d Cir. 1971); United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir. 1978); United States v. Rose, 570 F.2d 1358, 1362 (9th Cir. 1978); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983); United States v. Delaplane, 778 F.2d 570, 573-74 (10th Cir. 1985); United States v. Rosenthal, 793 F.2d 1214, 1231-232 (11th Cir. 1986). CRS-27 ventures” or some equivalent level of participation.103 The cases seldom explained whether these exceptions operated under all circumstances or only when searches or seizures involved the person or property of Americans. In the days when MLATs were scarce, however, the courts rarely, if ever, encountered circumstances sufficient to activate either exception. Verdugo-Urquidez may suggest a more narrow application of the Fourth Amendment than was previously contemplated. It holds that “the Fourth Amendment [does not] appl[y] to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country,” 494 U.S. at 261. The majority opinion is grounded not in the principles previously announced by the lower courts but in its reading of the history of the Amendment and of the Court’s earlier treatment of the Constitution’s application overseas and to aliens.104 Earlier lower court jurisprudence is neither mentioned nor cited. Moreover, one of the Justices in the five member majority and a sixth Justice authored concurrences in which they indicated that Fourth Amendment reasonableness abroad may be very different from the Amendment’s demands domestically.105 One commentator argues that the concurrences should be read as confining rather than expanding the impact of the majority decision: Given Verdugo-Urquidez, it might understandably be thought that the issue discussed herein – when, if ever, a United States connection with a search in a foreign country is substantial enough to make the Fourth Amendment and its exclusionary rule applicable – is of no relevance whenever that search is directed at an alien not then in the United States. But, an examination of the positions of the two concurring and three dissenting Justices suggests otherwise. The 103 Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1969); United States v. Callaway, 446 F.2d 753, 755 (3d Cir. 1971); United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976); United States v. Rose, 570 F.2d 1358, 1362 (9th Cir. 1978); United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983); United States v. Mount, 757 F.2d 1315, 1317-318 (D.C.Cir. 1985); United States v. Delaplane, 778 F.2d 570, 573-74 (10th Cir. 1985); United States v. Rosenthal, 793 F.2d 1214, 1231-232 (11th Cir. 1986). 104 “We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent’s claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the United States and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application,” 494 U.S. 274-75. 105 494 U.S. at 278 (Kennedy, J., concurring)(“The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment’s warrant requirement should not apply in Mexico as it does in this country”); id. at 279 (Stevens, J., concurring in the judgment)(“I do agree, however, with the Government’s submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not ‘unreasonable’ as that term is used in the first Clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens’ homes in foreign jurisdictions because American magistrates have no power to authorize such searches”). CRS-28 dissenters. . . are of the view that if the foreign search is properly characterized as United States activity . . . then the Fourth Amendment applies if the defendant is being subjected to a U.S. criminal prosecution. . . . Thus, the most that can be definitely concluded from Verdugo-Urquidez is that the Fourth Amendment’s warrant clause is inapplicable to a search conducted under the circumstances present in that case. Beyond that, much depends upon the exact positions of the two [cryptic] concurring Justices. 1 LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 325-26 (4th ed. 2004)(emphasis in the original). Subsequent case law in the lower federal courts acknowledges VerdugoUrquidez and molds the principles of the opinion for the Court into the body preexisting law.106 Going a step further, the Ninth Circuit declared in United States v. Juda that [T]the Fourth Amendment’s reasonableness standard applies to United States officials conducting a search affecting a United States citizen in a foreign country. . . [A] foreign search is reasonable if it conforms to the requirements of foreign law. Moreover . . . such a search will be upheld under the good faith exception to the exclusionary rule when United States officials reasonably rely on foreign officials’ representations of foreign law. 46 F.3d 961, 968 (9th Cir. 1995). Self-Incrimination Overseas. Like the Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment self-incrimination clause and its attendant Miranda warning requirements do not apply to statements made overseas to foreign officials107 subject to the same “joint venture”108 and “shocked conscience” exceptions.109 Of 106 United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991)(“the Fourth Amendment does not apply to a seizure of an alien’s property on foreign soil”); United States v. Davis, 905 F.2d 245, 251 (9th Cir. 1990)(the Fourth Amendment does not apply to the search and seizure of alien property aboard a ship of foreign registry upon the high seas); United States v. Behety, 32 F.3d 503, 510-11 (11th Cir. 1994)(the Fourth Amendment does not apply to the search and seizure of alien property aboard by foreign officials subject to conscience shocking and joint venture exceptions); each citing Verdugo-Urquidez; see also, United States v. Marzook, F.Supp.2d , (N.D. Ill. June 8, 2006)(“As the Seventh Circuit and other courts held, the Fourth Amendment and the exclusionary rule generally do not apply to acts of foreign officials on foreign soil. . . . Two recognized exceptions apply to this general rule: 1) where a joint venture with foreign officials exists; and 2) where the foreign officials’ conduct shocks the conscience of the court”). 107 United States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003); United States v. Martindale, 790 F.2d 1129, 1131-132 (4th Cir. 1986); United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980); United States v. Mundt, 508 F.2d 904, 906 (10th Cir. 1974). 108 United States v. Yousef, 327 F.3d 56, 145-46 (2d Cir. 2003); United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980); United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1986); United States v. Mundt, 508 F.2d 904, 906-907 (10th Cir. 1974); United States v. Hensel, 509 F.Supp. 1364, 1375 (D. Me. 1981). 109 United States v. Yousef, 327 F.3d 56, 145-46 (2d Cir. 2003), citing, United States v. Cotroni, 527 F.2d 708, 712 n.10 (2d Cir. 1975); United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980). CRS-29 course as a general rule to be admissible at trial in this country, any confession must have been freely made.110 Statute of Limitations: 18 U.S.C. 3292 and Related Matters. Federal capital offenses and certain federal terrorist offenses may be prosecuted at any time.111 With some exceptions, prosecution of other federal crimes must begin within 5 years.112 Prosecution of nonviolent federal terrorism offenses must begin within 8 years.113 Moreover, the statute of limitations is suspended or tolled during any period in which the accused is a fugitive.114 Finally, section 3292 authorizes the federal courts to stay the running of a statute of limitations in order to await the arrival of evidence requested of a foreign government: Upon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court before which a grand jury is impaneled to investigate the offense shall suspend the running of the statute of limitations for the offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country. 18 U.S.C. 3292(a)(1). 110 Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)(“the ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has will to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of confession offends due process”); United States v. Lopez, 437 F.3d 1059, 1063-64(10th Cir. 2006); United States v. Jacobs, 431 F.3d 99, 108 (3d Cir. 2005); United States v. Thompson, 422 F.3d 1285, 1295-296 (11th Cir. 2005); United States v. Garcia Abrego, 141 F.3d 142, 170-71 (5th Cir. 1998); United States v. Marzook, F.Supp.2d , (N.D.Ill. June 8, 2006)(“interrogation accompanied by physical violence is presumptively involuntary”). 111 18 U.S.C. 3281 (capital offenses); 18 U.S.C. 3286(b)(prosecution of any of the offenses listed in 18 U.S.C. 2332b(g)(5)(B) whose commission created a foreseeable risk of serious injury or resulted in such injury). Section 2332b(g)(5)(B) lists more than 40 federal criminal offenses including crimes such as violence in international airports (18 U.S.C. 37), assassination of the President (18 U.S.C. 1751), providing material support to terrorist organizations (18 U.S.C. 2339B). 112 18 U.S.C. 3282. 113 18 U.S.C. 3286(a)(violation of an offense listed in 18 U.S.C. 2332b(g)(5)(B) whose commission does not create a foreseeable risk of serious injury or result in such injury). 114 18 U.S.C. 3290. Most courts construe section 3290 to require flight with an intent to avoid prosecution or a departure from the place where the offense occurred with the knowledge that an investigation is pending or being conducted, United States v. Florez, 447 F.3d 145, 150-52 (2d Cir. 2006)(citing authority in accord). Thus, a suspect in the case of an federal extraterritorial offense is not likely to be considered a fugitive if he simply remains in the country were of the offense was committed. CRS-30 Section 3292 suspensions may run for no more than six months if the requested foreign assistance is provided before the time the statute of limitations would otherwise have expired and for no more than three years in other instances.115 The suspension period begins with the filing of the request for foreign assistance and ends with final action by the foreign government upon the request.116 Because of the builtin time limits, the government need not show that it acted diligently in its attempts to gather overseas evidence.117 The circuits are divided over whether the section can be used to extend the statute of limitations with respect to evidence that the government has already received at the time it filed the request.118 At least one circuit has held that the statutory reference to “the district court before which a grand jury is impaneled to investigate the offense” is intended to identify the court that may issue the suspension order and does not limit the statute to requests filed in aid of a pending grand jury investigation.119 Extradition. Extradition is perhaps the oldest form of international law enforcement assistance. It is a creature of treaty by which one country surrenders a fugitive to another for prosecution or service of sentence.120 The United States has bilateral extradition treaties with roughly two-thirds of the nations of the world.121 Treaties negotiated before 1960 and still in effect reflect the view then held by the United States and other common law countries that criminal jurisdiction was territorial and consequently extradition could not be had for extraterritorial crimes.122 Subsequently negotiated agreements either require extradition regardless of where the offense 115 18 U.S.C. 3292(c)(“The total of all periods of suspension under this section with respect to an offense – (1) shall not exceed three years; and (2) shall not extend a period within which a criminal case must be initiated for more than six months if all foreign authorities take final action before such period would expire without regard to this section”); United States v. Baldwin, 414 F.3d 791, 795 (7th Cir. 2005); United States v. Grenoble, 413 F.3d 569, 574-75 (6th Cir. 2005). 116 117 18 U.S.C. 3292(b). United States v. Hagege, 437 F.3d 943, 955 (9th Cir. 2006). 118 United States v. Atiyeh, 402 F.3d 354, 362-66 (3d Cir. 2005)(holding that the statute of limitations may not be suspended under section 3292 when the request for foreign assistance is submitted after the evidence has in fact been received); contra, United States v. Miller, 830 F.2d 1073, 1076 (9th Cir. 1987); United States v. DeGeorge, 380 F.3d 1203, 1213 (9th Cir. 2004). 119 United States v. DeGeorge, 380 F.3d 1203, 1214 (9th Cir. 2004). 120 See generally, Extradition To and From the United States: Overview of the Law and Recent Treaties, CRS Rept. 98-958A. 121 18 U.S.C. 3181 note (list the countries with whom we have extradition treaties). 122 Abbell, EXTRADITION TO AND FROM THE UNITED STATES, §§3-2(5), 6-2(5) (2002). CRS-31 occurs,123 permit extradition regardless of where the offense occurs,124 or require extradition where the extraterritorial laws of the two nations are compatible.125 More recent extradition treaties address other traditional features of our earlier agreements that complicate extradition, most notable the nationality exception, the political offense exception, and the practice of limiting extradition to a list of specifically designated offenses. Federal crimes committed within other countries are more likely to be the work of foreign nationals than is otherwise the case. Unfortunately, the “most common type of treaty provision provides that neither of the contracting parties shall be bound to deliver up its own citizens or subjects.”126 Most treaties negotiated of late, however, contain either an article declaring that extradition may not be denied on the basis of nationality127 or one declaring that if extradition is denied on the basis of nationality the case must be referred to local authorities for prosecution.128 “The political offense exception is now a standard clause in almost all extradition treaties of the world.”129 Originally designed to protect unsuccessful 123 E.g., Extradition Treaty, U.S.-Jordan, Art.2(4), S.Treaty Doc. 104-3 (“An offense described in this Article shall be an extraditable offense regardless of where the act or acts constituting the offense were committed”); Extradition Treaty, U.S.-Austria, Art.2(6), S.Treaty Doc. 105-50; Extradition Treaty, U.S.-Lux., Art.2(1), S.Treaty Doc. 105-10. 124 Extradition Treaty, U.S.-Hung., Art.2(4), S.Treaty Doc. 104-5 (“If the offense has been committed outside the territory of the Requesting State, extradition shall be granted if the laws of the Requested State provide for the punishment of an offense committed outside of its territory in similar circumstances. If the laws of the Requested State do not so provide, the executive authority of the Requested State may, in its discretion grant extradition”); Extradition Treaty, U.S.-Bah., Art.2(4), S.Treaty Doc. 102-17. 125 Extradition Treaty, U.S.-Fr., Art.2(4), S.Treaty Doc. 105-13 (“Extradition shall be granted for an extraditable offense committed outside the territory of the Requesting State, when the laws of the Requested State authorize the prosecution or provide the punishment for that offense in similar circumstances”). 126 Bassiouni, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 683 (4th ed. 2002). 127 E.g., Extradition Treaty, U.S.-Peru, Art. III, S.Treaty Doc. 107-6 (“Extradition shall not be refused on the ground that the person sought is a national of the Requested State”); Extradition Treaty, U.S.-Belize, Art. 3, S.Treaty Doc. 106-38; Extradition Treaty, U.S.Para., Art. III, S.Treaty Doc. 106-4 128 Extradition Treaty, U.S.-Kor., Art. 3, S.Treaty Doc. 106-2 (“1. Neither Contracting State shall be bound to extradite its own nationals, but the Requested State shall have the power to extradite such person if, in its discretion, it be deemed proper to do so. 2. If extradition is refused solely on the basis of the nationality of the person sought, the Requested State shall, at the request of the Requesting State, submit the case to its authorities for prosecution. 3. Nationality shall be determined at the time of the commission of the offense for which extradition is requested”); Extradition Treaty, U.S.-Pol., Art. 4, S.Treaty Doc. 105-14; Extradition Treaty, U.S.-Fr., Art. 3, S.Treaty Doc. 105-13. 129 Bassiouni, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 595 (4th ed. 2002). CRS-32 insurgents in flight,130 it is often construed to include both the purely political offense such as treason and sedition and the relatively political offense such as an act of violence committed during the course of, and in furtherance of, a political upheaval.131 The exception is somewhat at odds with contemporary desires to prevent, prosecute and punish acts of terrorism, consequently treaties forged over the last several years frequently include some form of limitation on the exception, often accompanied by a discretionary right to refuse politically or otherwise discriminatorily motivated extradition requests.132 Current U.S. extradition treaties signed prior to the 1980’s list specific crimes to which the treaty is limited.133 In our first extradition treaty the list was limited to murder and forgery;134 towards the end of the twentieth century the standard lists had 130 Quinn v. Robinson, 783 F.2d 776, 792-93 (9th Cir. 1986)(“The political offense exception is premised on a number of justifications. First, its historical development suggests that it is grounded on the belief that individuals have a right to resort to political activism to foster political change. This justification is consistent with the modern consensus that political crimes have greater legitimacy than common crimes. Second, the exception reflects a concern that individuals – particularly unsuccessful rebels – should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Third, the exception comports with the notion that governments – and certainly their non-political branches – should not intervene in the internal political struggles of other nations”). 131 Bassiouni, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 594-673 (4th ed. 2002). 132 E.g., Extradition Treaty, U.S.-S.Afr., Art. 4, S.Treaty Doc. 106-24 (“1. Extradition shall not be granted if the offense for which extradition is requested is a political offence. 2. For the purpose of this Treaty, the following offenses shall not be considered political offenses: (a) a murder or other violent crime against a Head of State or Deputy Head of State of the Requesting or Requested State, or of or against a member of such person’s family; (b) an offence for which both the Requesting and Requested Sates have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their respective competent authorities for decision as to prosecution; (c) murder; (d) an offense involving kidnapping, abduction, or any form of unlawful detention, including the taking of a hostage; and (e) attempting or conspiring to commit, aiding, abetting, inducing, counseling or procuring the commission of, or being an accessory before or after the a fact of such offences. 3. Notwithstanding the terms of sub-article 2, extradition shall not be granted if the executive authority of the Requested State determines that there are substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s gender, race, religion, nationality, or political opinion”); Extradition Treaty, U.S.-Pol., Art. 5, S.Treaty Doc. 105-14(motivation clause is limited to politically motivated); Extradition Treaty, U.S.-Sri Lanka, Art. 4, S.Treaty Doc. 106-34 (only Heads of State clause, clauses identifying particular international obligations, and a conspiracy-attempt-accessory clause)(motivation clause is limited to politically motivated requests). 133 Abbell, EXTRADITION TO AND FROM THE UNITED STATES, §3-2(2)(2002). 134 8 Stat. 116, 129 (1794). CRS-33 grown to close to or more than thirty crimes.135 Treaties agreed to more recently opt for a generic description.136 As an alternative to extradition, particularly if the suspect is not a citizen of the country of refuge, foreign authorities may be willing to expel or deport him under circumstances that allow the United States to taken him into custody.137 In the absence of a specific treaty provision, the fact that the defendant was abducted overseas and brought to the United States for trial rather than pursuant to a request under the applicable extradition treaty does not deprive the federal court of jurisdiction to try him.138 Venue. Federal crimes committed within the United States must be tried where they occur.139 Venue over extraterritorial crimes is a matter of statute, 18 U.S.C. 3238. 135 Extradition Treaty, U.S.-U.K., 28 U.S.T. 227, 235(1977)(29 crimes); Extradition Treaty, U.S.-Nor., 31 U.S.T. 5619, 5634 (1980)(33 crimes); Extradition Treaty, U.S.-F.R.G., 32 U.S.T. 1485, 1515 (1980)(33 crimes). 136 E.g., Extradition Treaty, U.S.-Austria, Art. 2(1), S.Treaty Doc. 105-50 (“Extradition shall be granted for offenses which are subject under the laws in both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty”); Extradition Treaty, U.S.-Malay., Art. 2(1), S.Treaty Doc. 104-26; Extradition Treaty, U.S.Zimb., Art. 2(1), S.Treaty Doc. 105-33. 137 United States v. Mejia, 448 F.3d 436, 439 (D.C.Cir. 2006)(Panamian authorities arrested the defendants and turned them over to U.S. Drug Enforcement Administration (DEA) officers in Panama who flew them to the U.S.); United States v. Arbane, 446 F.3d 1223, (11th Cir. 2006)(Ecuadorian officials deported the defendant to Iran on a plane schedule to stop in the U.S. where the defendant was arrested); United States v. Matta-Ballesteros, 71 F.3d 754, 761 (9th Cir. 1995)(Honduran military and U.S. Marshals seized the defendant in Honduras and the Marshals flew him to the U.S. by way of the Dominican Republic); United States v. Chapa-Garza, 62 F.3d 118, 120 (5th Cir. 1995)(Mexican authorities deported the defendant to the United States); United States v. Pomeroy, 822 F.2d 718, (8th Cir. 1987)(Canadian authorities deported the defendant to the United States); United States v. Valot, 625 F.2d 308, 309 (9th Cir. 1980)(Thai immigration authorities handed the defendant over to DEA agents in the Bangkok airport who flew him to the United States “over his protest”). 138 United States v. Alvarez-Machain, 504 U.S. 655, 669-70 (1992)(portions of the footnote 16 of the Court’s opinion in brackets)(“Mexico has protested the abduction of respondent through diplomatic notes, and the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive Branch. [The Mexican Government has also requested from the United States the extradition of two individuals it suspects of having abducted respondent in Mexico on charges of kidnaping. . . .] . . .The fact of respondent’s forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States”); see also, United States v. Mejia, 448 F.3d 436, 442-43 (D.C.Cir. 2006); United States v. Arbane, 446 F.3d 1223, 1225 (11th Cir. 2006); United States v. Best, 304 F.3d 308, 311-16 (3d Cir. 2002); Kasi v. Angelone, 300 F.3d 487, 493-98 (4th Cir. 2002); United States v. Torres Gonzalez, 240 jF.3d 14, 16 (1st Cir. 2001). 139 U.S.Const. Art.III, §2, cl.3; Amend.VI. CRS-34 Section 3238 permits the trial of extraterritorial crimes either (1) in the district into which the offender is “first brought” or in which he is arrested for the offense; or (2) prior to that time, by indictment or information in the district of the offender’s last known residence and if none is known in the District of Columbia.140 The phrase “first brought” as used in section 3238 means “first brought while in custody.”141 As the language of the section suggests, venue for all joint offenders is proper wherever venue for one of their number is proper.142 Testimony of Overseas Witnesses. Federal courts may subpoena a United States resident or national found abroad to appear to before it or the grand jury.143 Federal courts ordinarily have no authority to subpoena foreign nations located in a foreign country.144 Mutual legal assistance treaties and agreements generally contain provisions to facilitate a transfer of custody 140 “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia,” 18 U.S.C. 3238. United States v. Hisin-Yung, 97 F.Supp.2d 24, 28 (D.C.Cir. 2000)(“The two clauses provide alternative proper venues. Therefore, if the latter provision is relied on, and defendant is indicted before he is brought into the United States, he may be tried in the district in which he was indicted regardless of whether it is the district in which he is first brought into the United States”); see also, United States v. Hilger, 867 F.2d 566, 568 (9th Cir. 1989); United States v. Fraser, 709 F.2d 1556, 1558 (6th Cir. 1983); United States v. McRary, 616 F.2d 181, 185 (5th Cir. 1980). 141 United States v. Feng, 277 F.3d 1151, 1155 (9th Cir. 2002)(“The word ‘brought’ under the statute means first bright into a jurisdiction from outside the United States jurisdiction while in custody”); United States v. Catino, 735 F.2d 718, 724 (2d Cir. 1984). 142 United States v. Yousef, 327 F.3d. 56, 115 (2d Cir. 2003); United States v. Pearson, 791 F.2d 867, 869-70 (11th Cir. 1986). 143 28 U.S.C. 1783 (“A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner”); Blackmer v. United States, 284 U.S. 421, 436-38 (1932). 144 United States v. Yates, 345 F.3d 1280, 1283 (11th Cir. 2003); United States v. Olafson, 213 F.3d 435, 441 (9th Cir. 2000); United States v. Ozsusamlar,. 428 F.Supp.2d 161, 177 (S.D.N.Y. 2006); cf., United States v. Liner, 435 F.3d 920, 924 (8th Cir. 2006). Cases where the witness is in federal custody overseas may prove an exception to the rule, but they may also come with their own special complications, see e.g., United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004)(foreign nationals held in military custody overseas whom the government, in the interest of national security, declined to make available for depositions or to appear as witnesses in a criminal trial). CRS-35 for foreign witnesses who are imprisoned overseas145 and in other instances to elicit assistance to encourage foreign nationals to come to this country and testify voluntarily.146 Unable to secure the presence of overseas witnesses, federal courts may authorize depositions to be taken abroad, under “exceptional circumstances and in the interests of justice;”147 under even more limited circumstances they may admit such depositions into evidence in a criminal trial. 145 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Leich., Art. 11, S.Treaty Doc. 107-16 (“1. A person in the custody of the Requested State whose presence outside of the Requested State is sought for purposes of assistance under this Treaty shall be transferred form the Requested State for that purpose if the person consents and if the Central Authorities of both States agree. . . 3. For purposes of this Article: a) the receiving State shall have the authority and the obligation to keep the person transferred in custody unless otherwise authorized by the sending State; b) the receiving State shall return the person transferred to the custody of the sending State as soon as circumstances permit or as otherwise agreed by both Central Authorities; c) the receiving state shall not require the sending State to initiate extradition proceedings for the return the person transferred; d) the person transferred shall receive credit for service of the sentence imposed in the sending State for time served in the custody of the receiving State; and e) where the receiving State is a third State the Requesting State shall be responsible for all arrangements necessary to meet the requirements of this paragraph”); see also, Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Ukr., Art. 11, S.Treaty Doc. 106-16; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Fr., Art. 18, S.Treaty Doc. 106-17; Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Greece, Art. 11, S.Treaty Doc. 106-18. 146 E.g., Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Belize, Art. 10, S.Treaty Doc. 106-19 (“1. When the Requesting State requests the appearance of a person in that State, the Requested State shall invite the person to appear before the appropriate authority in the Requesting State. The Requesting State shall indicate the extent to which the expenses will be paid. The Central Authority of the Requested State shall promptly inform the Central Authority of the Requesting State of the response of the person. 2. The Central Authority of the Requesting state shall inform the Central Authority of the requested State whether a decision has been made by the competent authorities of the Requesting State that a person appearing in the Requesting State pursuant to this article shall not be subject to service of process, or be detained or subject to any restriction of personal liberty, by reason of any acts or convictions which preceded his departure from the Requested State”); see also, Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Liech., Art. 10, S.Treaty Doc. 107-16 (person may be served or detained except as stated in the request); Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-Venez., Arts. X, S.Treaty Doc. 105-38. When a witness is found in a country with whom we have no such treaty, officials have used U.S. immigration parole authority in an effort to accomplish the same results, see e.g., Wang v. Reno, 81 F.3d 808, 811-12 (9th Cir. 1996). 147 F.R.Crim.P. 15(a)(1)(“A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data”). CRS-36 Originally, only a defendant might request that depositions be taken under Rule 15 of the Federal Rules of Criminal Procedure,148 but they have been available to prosecutors since the 1970’s.149 The Rule offers depositions as an alternative to long term incarceration of material witnesses.150 Otherwise, depositions may be ordered only under exceptional circumstances. Some courts have said that to “establish exceptional circumstances the moving party must show the witness’s unavailability and the materiality of the witness’s testimony.”151 Others would add to these that “the testimony is necessary to prevent a failure of justice” or additional considerations.152 In any event, once a deposition has been taken the impediments to its use at trial, especially by the prosecution, are much more formidable. “Compliance with Rule 15 is a necessary but not sufficient condition for use of a deposition at trial.”153 Admissibility at trial requires compliance with Rule 15, the Federal Rules of Evidence, and the Constitution’s confrontation clause. As general matter, depositions are to be taken in the same manner as depositions in civil cases.154 Moreover, the Rule requires that the defendant be afforded an opportunity to attend depositions taken at the government’s request.155 The requirement reflects the 148 F.R.Crim.P. 15(a), 18 U.S.C.App. (1964 ed.). For a history of the evolution of Rule 15 see, 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE §251 (Crim. 3d 2000). 149 F.R.Crim.P. 15(a), 18 U.S.C.App. (1976 ed.); see also 18 U.S.C. 3503 (1970 ed.). 150 “A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript,” F.R.Crim.P. 15(a)(2). 151 United States v. Liner, 435 F.3d 920, 924 (8th Cir. 2006); see also, United States v. Kelley, 36 F.3d 1118, 1125 (D.C. Cir. 1994)(identifying the two as “critical factors”). 152 United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001); see also, United States v. RuizCastro, 92 F.3d 1519, 1533 (10th Cir. 1996)(identifying the three factors as among those a court should consider before authorizing depositions); United States v. Thomas, 62 F.3d 1332, 1341 (11th Cir. 1995)(listing consideration of unavailability, materiality, and “countervailing factors [that] would make the deposition unjust to the nonmoving party”); United States v. Aggarwal, 17 F.3d 737, 742 (5th Cir. 1994)(denial of the motion may be based entirely upon the fact it is untimely). 153 United States v. McKeeve, 131 F.3d 1, 8 (1st Cir. 1997). 154 “(e) Unless these rules or a court order provides otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action, except that (1) A defendant may not be deposed without that defendant's consent. (2) The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial. (3) The government must provide to the defendant or the defendant's attorney, for use at the deposition, any statement of the deponent in the government's possession to which the defendant would be entitled at trial. “(f) A party may use all or part of a deposition as provided by the Federal Rules of Evidence. “(g) A party objecting to deposition testimony or evidence must state the grounds for the objection during the deposition, F.R.Crim.P. 15(e),(f),(g)(captions omitted). 155 “(1) The officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witness's presence during the examination, unless CRS-37 demands of the Constitution’s confrontation clause: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” U.S. Const. Amend. VI. The right embodies not only the prerogative of a literal face to face confrontation, but also the right to cross examine and to have the witness’s testimonial demeanor exposed to the jury.156 In the case of depositions taken overseas, the courts have observed that the right is not absolute.157 When a deposition is taken abroad, the courts prefer that the defendant be present,158 that his counsel be allowed to cross-examine the witness,159 that the deposition be taken under oath,160 that a verbatim transcript be taken, and that the deposition be captured on videotape;161 but they have permitted depositions to be the defendant: (A) waives in writing the right to be present; or (B) persists in disruptive conduct justifying exclusion after being warned by the court that disruptive conduct will result in the defendant’s exclusion. (2) A defendant who is not in custody has the right upon request to be present at the deposition, subject to any conditions imposed by the court. If the government tenders the defendant’s expenses as provided in Rule 15(d) but the defendant still fails to appear, the defendant – absent good cause – waives both the right to appear and any objection to the taking and use of the deposition based on that right,” F.R.Crim.P. 15(c)(captions omitted). “If the deposition was requested by the government, the court may – or if the defendant is unable to bear the deposition expenses, the court must – order the government to pay: (1) any reasonable travel and subsistence expenses of the defendant and the defendant’s attorney to attend the deposition; and (2) the costs of the deposition transcript,”F.R.Crim.P. 15(d)(captions omitted). 156 Barber v. Page, 390 U.S. 719, 725 (1968)(“The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness”). 157 United States v. McKeeve, 131 U.S. 1, 8 (1st Cir. 1997); United States v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998). 158 United States v. McKeeve, 131 U.S. 1, 8 (1st Cir. 1997)(“the confrontation clause requires, at a minimum, that the government undertake diligent efforts to facilitate the defendant’s presence. We caution, however, that although such efforts must be undertaken in good faith, they need not be heroic); United States v. Kelly, 892 F.2d 255, 262 (3d Cir. 1989); United States v. Salim, 855 F.2d 944, 950 (2d Cir. 1988). 159 United States v. Johnpoll, 739 F.2d 702, 710 (2d Cir. 1984)(“The confrontation clause does not preclude admission of prior testimony of an unavailable witness, provided his unavailability is shown and the defendant had an opportunity to cross-examine. In the present case, Johnpoll had the full opportunity, at government expense, with his attorney to confront and cross-examine the Swiss witness, which he waived when he and his attorney decided not to attend the taking of the depositions”). 160 United States v. Sines, 761 F.2d 1434, 1441 (9th Cir. 1985)(“The Supreme Court has identified the major purposes of the confrontation clause as: (1) ensuring that witnesses well testify under oath; (2) forcing witnesses to undergo cross-examination; and (3) permitting the jury to observe the demeanor of witnesses. All three of these purposes were fulfilled when Steneman’s videotaped deposition was taken [in Thailand] with Sine’s attorney present”). 161 United States v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998)(“When the government is unable to secure a witness’s presence at trial, Rule 15 is not violated by admission of CRS-38 admitted into evidence at subsequent criminal trials in this country, notwithstanding the fact that one or more of these optimal conditions are not present.162 In some of those nations whose laws might not otherwise require or even permit depositions under conditions considered preferable under our law, a treaty provision addresses the issue.163 videotaped testimony so long as the government makes diligent efforts to secure the defendant’s physical presence at the deposition, and failing this, employs procedures that are adequate to allow the defendant to take an active role in the deposition proceedings. . . The government was unable to secure Medjuck’s presence at the Canadian depositions because there was no mechanism in place to allow United States officials to transfer Medjuck to Canadian authorities. . . and secure his return to the United States in a timely fashion after the depositions. Finally, the government set up an elaborate system to allow Medjuck to witness the depositions live by video feed and to participate with his attorneys by private telephone connection during the depositions taken in Canada. . . .[A]n exception to the confrontation requirements] has been recognized for admission of deposition testimony where a witness is unavailable to testify at trial . . . First, the deposition testimony must fall within an established exception to the hearsay rule. Second the deposition must be taken in compliance with law. Finally, the defendant must have had an opportunity to cross-examine the deposed witness ”); United States v. Kelly, 892 F.2d 255, 260-62 (3d Cir. 1980); United States v. Walker, 1 F.3d 423, 429 (6th Cir. 1993); United States v. Mueller, 74 F.3d 1152, 1156-157 (11th Cir. 1996); see also, United States v. Salim, 855 F.2d 944, 950 (2d Cir. 1988)(“In the context of the taking of a foreign deposition, we believe that so long as the prosecution makes diligent efforts . . . to attempt to secure the defendant’s presence, preferably in person, but if necessary via some form of live broadcast, the refusal of the host government to permit the defendant to be present should not preclude the district court from ordering that the witness’ testimony be preserved anyway. However, the district court should satisfy itself that defense counsel will be given an opportunity to cross-examine the witness in order to fulfill the mandate of Rule 15(b) to ensure a likelihood that the deposition will not violate the confrontation clause”) . 162 United States v. Sturman, 951 F.2d 1466, 1480-481(6th Cir. 1992)(“Swiss law forbids verbatim transcription so the summary method of establishing the reocrd was the most effective legal method. All defense questions, with just one exception, were submitted to the witnesses so that objections and determinations on admissibility could be litigated later. Although the witnesses were not given an oath, defense conceded that each witness was told the penalties for giving false testimony. . . Depositions taken in foreign countries cannot at all times completely emulate the United States methods of obtaining testimony. Here all steps were taken to ensure the defendants’ rights while respecting the legal rules established in a different country”). 163 E.g., Treaty on Mutual Legal Assistance on Criminal Matters, U.S.-Fr., Art. 9(2), S.Treaty Doc. 106-17 (“The procedures specified in this paragraph and outlined in the request shall be carried out insofar as they are not contrary to the fundamental principles of a judicial proceeding in the Requested State. The Requested State, if the Requesting State requests, shall: (a) take the testimony of witnesses or experts under oath . . .; (b) allow a confrontation between a defendant, together with counsel, and a witness or expert whose testimony or evidence is taken for use against the defendant in a criminal prosecution in the Requesting State; (c) ask questions submitted by the Requesting State, including questions proposed by authorities of the Requesting State present at the execution of the request; (d) record or allow to be recorded the testimony, questioning, or confrontation; and (e) produce or allow to be produced a verbatim transcript of the proceeding in which the testimony, questioning, or confrontation occurs”). CRS-39 The Federal Rules of Evidence govern the admissibility of evidence in federal criminal trials. A deposition taken overseas that has survived Rule 15 and confrontation clause scrutiny is likely to be found admissible. The hearsay rule, Rule 802 which reflects the law’s preference for evidence that is exposed to the adversarial process, poses the most obvious obstacle.164 The Rules, however, provide an explicit exception for depositions,165 one that has been applied to depositions taken overseas under the authority of Rule 15.166 Yet the question of admissibility of overseas depositions rests ultimately upon whether the confrontation clause demands can be satisfied. The cases thus far have relied upon the Supreme Court’s decisions either in Roberts v. Ohio167 or in Maryland v. Craig.168 Faced with the question of whether trial witnesses might testify remotely via a two-way video conference, Craig held that the confrontation clause’s requirement of physical face-to-face confrontation between witness and defendant at trial can be excused under limited circumstances in light of “considerations of public policy and necessities of the case.”169 Roberts dealt with the question of whether the admission of hearsay evidence violated the confrontation clause, and declared that as long as the hearsay evidence came within a “firmly rooted hearsay exception” its admission into evidence in a criminal trial constituted no breach of the clause.170 More recent decisions might be thought to call into question any continued reliance on Roberts and Craig. At a minimum, the Supreme Court’s Crawford v. Washington repudiates the suggestion that Roberts permits anything less than actual confrontation in the case of “testimonial” hearsay.171 And at least one appellate panel 164 “Hearsay is not admissible except as provided by these rules and by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress,” F.R.Evid. Rule 802. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” F.R.Evid. Rule 801(c). 165 “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Testimony given as a witness . . . in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered. . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination,” F.R.Evid. Rule 804(b)(2)(caption omitted). 166 United States v. Medjuck, 156 F.3d 916, 921 (9th Cir. 1998); United States v. McKeeve, 131 F.3d 1, 10 (1st Cir. 1997); United States v. Kelly, 892 F.2d 255, 261-62 (3d Cir. 1990). 167 United States v. McKeeve, 131 F.3d 1, 9 (1st Cir. 1997); United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993); United States v. Kelly, 892 F.2d 255, 261 (3d Cir. 1989); United States v. Salim, 855 F.2d 944, 954-55 (2d Cir. 1988). 168 United States v. Medjuck, 156 F.3d 916, 920-21 (9th Cir. 1998) 169 497 U.S. 836, 848 (1990). 170 448 U.S. 56, 66 (1980). 171 541 U.S. 36, 68 (2004) (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the states flexibility in their development of hearsay law – as does Roberts, and as would an approach that exempted such statements form confrontation clause scrutiny altogether. Where testimonial evidence is at issue, CRS-40 has concluded that the prosecution’s need for critical evidence does not alone supply the kind of public policy considerations necessary to qualify for a Craig exception.172 On the other hand, since the pre-Crawford cases required a good faith effort to assure the defendant’s attendance at overseas depositions, it might be argued that Crawford requires no adjustment in the area’s jurisprudence. Moreover, the Eleventh Circuit en banc Craig analysis implied that it thought the use of overseas depositions at trial more compatible with the confrontation clause than the use of video trial testimony.173 however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination”). 172 173 United States v. Yates, 438 F.3d 1307, 1316 (11th Cir. 2006) United States v. Yates, 438 F.3d 1307, 1316 (11th Cir. 2006) (emphasis added) (“The government’s interest in presenting the fact-finding with crucial evidence is, of course, an important public policy. We hold , however, that, under the circumstances of this case (which include the availability of a Rule 15 deposition) , the prosecutor’s need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the defendants’ rights to confront their accusers face-to-face”). CRS-41 Admissibility of Foreign Documents. There is a statutory procedure designed to ease the evidentiary admission of foreign business records in federal courts, 18 U.S.C. 3505.174 The section covers “foreign record[s] of regularly conducted activity” in virtually any form, i.e, any “memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, maintained in a foreign country,” 18 U.S.C. 3505(c)(1). It exempts qualified business records from the operation of the hearsay rule in federal criminal proceedings175 and permits their authentication upon foreign certification.176 Finally, it establishes a procedure under which the reliability of the documents can be challenged in conjunction with other pre-trial motions.177 While the prosecution’s failure to provide timely notice of its intent to rely upon section 3505 does not necessarily bar admission,178 its failure to supply a foreign certification of authenticity precludes admission under the section.179 Early appellate decisions upheld section 3505 in the face of confrontation clause challenges, as in the case of depositions drawing support from Roberts v. 174 “Under §3505, a foreign certification serves to authenticate the foreign records, and thus dispenses with the necessity of calling a live witness to establish authentication,” United States v. Hagege, 437 F.3d 943, 957 (9th Cir. 2006). 175 “In a criminal proceeding in a court of the United States, a foreign record of regularly conducted activity, or a copy of such record, shall not be excluded as evidence by the hearsay rule if a foreign certification attests that – (A) such record was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters; (B) such record was kept in the course of a regularly conducted business activity; (C) the business activity made such a record as a regular practice; and (D) if such record is not the original, such record is a duplicate of the original [– ] unless the source of information or the method or circumstances of preparation indicate [a] lack of trustworthiness,” 18 U.S.C. 3505(a)(1). 176 “A foreign certification under this section shall authenticate such record or duplicate,” 18 U.S.C. 3505(a)(2). “Foreign certification” is “a written declaration made and signed in a foreign country by the custodian of a foreign record of regularly conducted activity or another qualified person that, if falsely made, would subject the maker to criminal penalty under the laws of that country,” 18 U.S.C. 3505(c)(2). 177 “At the arraignment or as soon after the arraignment as practicable, a party intending to offer in evidence under this section a foreign record of regularly conducted activity shall provide written notice of that intention to each other party. A motion opposing admission in evidence of such record shall be made by the opposing party and determined by the court before trial. Failure by a party to file such motion before trial shall constitute a waiver of objection to such record or duplicate, but the court for cause shown may grant relief from the waiver,” 18 U.S.C. 3505. 178 United States v. Newell, 239 F.3d 917, 921(7th Cir. 2001); United States v. Garcia Abrego, 141 F.3d 142, 176-78 (5th Cir. 1998). The court expressed “no opinion as to whether a showing of prejudice resulting from untimely notice of an intent to offer foreign records could eliminate §3505 as a potential pathway for admissibility of foreign business records,” 141 F.3d at 178 n. 26. 179 United States v. Doyle, 130 F.3d 523, 546 (2d Cir. 1997). CRS-42 Ohio.180 As noted above, Crawford cast doubt upon the continued vitality of the Roberts rule (hearsay poses no confrontation problems as long as it falls within a “firmly rooted hearsay exception”) when it held that only actual confrontation will suffice in the case of “testimonial” hearsay.181 Although it left for another day a more complete definition of testimonial hearsay, Crawford did note in passing that “[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial – for example business records.”182 At least one later appellate panel has rejected a confrontation clause challenge to section 3505 on the basis of this distinction.183 Conclusion The Constitution grants Congress broad powers to enact laws of extraterritorial scope and imposes few limitations on the exercise of that power. The states enjoy only residual authority, but they too may and have enacted criminal laws which apply beyond the territorial confines of the United States. Prosecutions are relatively few, however, perhaps because of the practical, legal, and diplomatic obstacles that may attend such an endeavor. 180 United States v. Garcia Abrego, 141 F.3d 142, 178-79 (5th Cir. 1998); United States v. Ross, 33 F.3d 1507, 1517 (11th Cir. 1994); United States v. Sturman, 951 F.2d 1466, 1490 (6th Cir. 1991); United States v. Miller, 830 F.2d 1073, 1078 (9th Cir. 1987). 181 541 U.S. 36, 68 (2004) (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the states flexibility in their development of hearsay law – as does Roberts, and as would an approach that exempted such statements from confrontation clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination”). 182 183 541 U.S. at 56. United States v. Hagege, 437 F.3d 943, 957-58 (9th Cir. 2006). CRS-43 Appendices I. Federal Criminal Laws Which Enjoy Express Extraterritorial Application184 A. Special Maritime & Territorial Jurisdiction 8 U.S.C. 1375a(d)(3) (informed consent violations by international marriage brokers) 15 U.S.C. 1175 (manufacture or possession of gambling devices) 15 U.S.C. 1243 (manufacture or possession of switchblade knives) 15 U.S.C. 1245 (manufacture or possession of ballistic knives) 16 U.S.C. 3372(a)(3) (possession of illegally taken fish or wildlife) 18 U.S.C. 81 (arson) 18 U.S.C. 113 (assault) 18 U.S.C. 114 (maiming) 18 U.S.C. 117 (domestic assault by an habitual offender) 18 U.S.C. 546 (smuggling goods into a foreign country from an American vessel) 18 U.S.C. 661 (theft) 18 U.S.C. 662 (receipt of stolen property) 18 U.S.C. 831 (threats, theft, or unlawful possession of nuclear material or attempting or conspiring to do so) 18 U.S.C. 1025 (false pretenses) 18 U.S.C. 1081 - 1083 (gambling ships) 18 U.S.C. 1111 (murder) 18 U.S.C. 1112 (manslaughter) 18 U.S.C. 1113 (attempted murder or manslaughter) 18 U.S.C. 1115 (misconduct or neglect by ship officers) 18 U.S.C. 1201 (kidnaping) 18 U.S.C. 1363 (malicious mischief) 18 U.S.C. 1460 (sale or possession with intent to sell obscene material) 18 U.S.C. 1466A (obscene visual representation of sexual abuse of children) 18 U.S.C. 1587 (captain of a slave vessel with slaves aboard) 18 U.S.C. 1591(sex trafficking of children) 18 U.S.C. 1656 (piratical conversion of vessel by captain, officer or crew member) 18 U.S.C. 1658 (plundering a ship in distress) 18 U.S.C. 1659 (attack upon a vessel with intent to plunder) 18 U.S.C. 1654 (Americans arming or serving on privateers outside the United States to be used against the United States or Americans) 18 U.S.C. 1801 (video voyeurism) 18 U.S.C. 1957 (prohibited monetary transactions) 18 U.S.C. 2111 (robbery) 18 U.S.C. 2191 (cruelty to seamen) 18 U.S.C. 2192 (incite to revolt or mutiny) 18 U.S.C. 2193 (revolt or mutiny by seamen) 18 U.S.C. 2194 (shanghaiing sailors) 18 U.S.C. 2195 (abandonment of sailors overseas) 184 The lists in this Appendix are not intended to be comprehensive; they do not include, for example, reference to provisions in the Uniform Code of Military Justice or in the District of Columbia Code or any other statutes enacted pursuant to a congressional delegation of legislative authority. CRS-44 18 U.S.C. 2196 (drunkenness of seamen) 18 U.S.C. 2197 (misuse of documents associated vessels) 18 U.S.C. 2198 (seduction of a female passenger) 18 U.S.C. 2199 (stowaways) 18 U.S.C. 2241 (aggravated sexual abuse) 18 U.S.C. 2242 (sexual abuse) 18 U.S.C. 2243 (sexual abuse of a minor or ward) 18 U.S.C. 2244 (abusive sexual contact) 18 U.S.C. 2252(a) (sale or possession of material involving sexual exploitation of children) 18 U.S.C. 2252A(a) (sale or possession of child pornography) 18 U.S.C. 2261A (stalking) 18 U.S.C. 2271-2279 (destruction of ships) 18 U.S.C. 2283 (transportation of explosives, biological, chemical, radioactive or nuclear materials for terrorist purposes on the high seas or aboard a U.S. vessel or in U.S. waters) 18 U.S.C. 2284 (transportation of a terrorist on the high seas or aboard a U.S. vessel or in U.S. waters) 18 U.S.C. 2318 (transporting counterfeit phonorecord labels, copies of computer programs or documentation, or copies of motion pictures or other audio visual works) 18 U.S.C. 2332b (acts of terrorism transcending national boundaries) 18 U.S.C. 2388 (war-time activities affecting armed forces) 18 U.S.C. 2422(b) (causing a minor to engage in prostitution or other sexual acts) 18 U.S.C. 2425 (transmission of information about a minor) 18 U.S.C. 3261(offenses committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) 46 U.S.C. App. 1903 (maritime drug law enforcement) 48 U.S.C. 1912 (offenses committed on United States defense sites in the Marshall Islands or Federated States of Micronesia) 48 U.S.C.1934 (offenses committed on United States defense sites in Palau) B. Special Aircraft Jurisdiction 18 U.S.C. 32 (destruction of aircraft) 18 U.S.C. 831 (threats, theft, or unlawful possession of nuclear material or attempting or conspiring to do so) 18 U.S.C. 1201 (kidnaping) 18 U.S.C. 2318 (transporting counterfeit phonorecord labels, copies of computer programs or documentation, or copies of motion pictures or other audio visual works) 49 U.S.C. 46502(a) (air piracy or attempted air piracy) 49 U.S.C. 46504 (interference with flight crew or attendants within the special aircraft jurisdiction of the United States) 49 U.S.C. 46506 (assaults, maiming, theft, receipt of stolen property, murder, manslaughter, attempted murder or manslaughter, robbery, or sexual abuse) C. Treaty-Related 18 U.S.C. 32(b) Offenses: - violence aboard a foreign civil aircraft (likely to endanger the safety of the aircraft) while in flight; - destruction of or incapacitating or endangering damage to foreign civil aircraft; - placing a bomb aboard a foreign civil aircraft; or - attempting or conspiring to do so Jurisdictional factors: - a United States national was on board; - the offender was a United States national; or - the offender is afterwards found in the United States) 18 U.S.C. 37 Offenses: CRS-45 - violence causing or likely to cause serious bodily injury or death at an international airport; - destruction of or serious damage to aircraft or facilities at an international airport; or - attempting or conspiring to do so Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States) 18 U.S.C. 112 Offenses: - assaulting an internationally protected person; - threatening an internationally protected person; or - attempting to threaten an internationally protected person Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 175 Offenses: - develop, produce, stockpile, transfer, acquire, retain, or possess biological weapons or delivery systems misuse of biological weapons; - assisting a foreign power to do so; or - attempting, threatening or conspiring to do so Jurisdictional factor: - "there is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the United States," 18 U.S.C. 175(a) 18 U.S.C. 229 Offenses: - using chemical weapons outside the United States; or - attempting, or conspiring to do so Jurisdictional factors: - the victim or offender was a United States national; or - the offense was committed against federal property 18 U.S.C. 831 Offenses: - threats, theft, or unlawful possession of nuclear material; or - attempting or conspiring to do so Jurisdictional factors: - a United States national or an American legal entity was the victim of the offense; - the offender was a United States national or an American legal entity; or - the offender is afterwards found in the United States; - the offense involved a transfer to or from the United States; or - the offense was a threat directed against the United States 18 U.S.C. 878 Offenses: - threatening to assault, kill or kidnap an internationally protected person Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 1091 Offense: genocide Jurisdictional factors: the offender was a United States national 18 U.S.C. 1116 Offense: killing an internationally protected person Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or CRS-46 - the offender is afterwards found in the United States 18 U.S.C. 1117 Offense: conspiracy to kill an internationally protected person Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 1201 Offense: - kidnaping an internationally protected person; or - attempting or conspiring to do so Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 1203 Offense: - hostage taking; or - attempting or conspiring to do so Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 2280 Offenses: - violence committed against maritime navigation; or - attempting or conspiracy to commit violence against maritime navigation Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C. 2281 Offenses: - violence committed against a maritime platform; or - attempting or conspiracy to commit violence against a maritime platform Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States 18 U.S.C. 2332a Offenses: - using a weapon of mass destruction outside the United States; or - threatening, attempting, or conspiring to do so Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offense was committed against federal property 18 U.S.C. 2332f (effective upon the terrorist bombing convention entering into force for the U.S.) Offenses: - bombing public places, government facilities, or public utilities outside the United States; or - threatening, attempting, or conspiring to do so Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offense was committed against federal property; CRS-47 - the offender is present in the United States; - the offense was committed on United States registered vessel or aircraft; or - the offense was intended to compel action or abstention by the United States 18 U.S.C. 2339C Offenses: - financing terrorism outside the U.S.; or - attempting or conspiring to do so Jurisdictional factors: - predicate act of terrorism was directed against + United States property, + United States nationals or their property, or + property of entities organized under United States law; - offense was committed on United States registered vessel or aircraft operated by the United States.; - the offense was intended to compel action or abstention by the United States; - the offender was a United States national; or - (effective upon the terrorism financing convention entering into force for the U.S.) the offender is present in the United States 18 U.S.C. 2340A Offenses: - torture under color of law outside the United States; or - attempted torture Jurisdictional factors: - the offender was a United States national; or - the offender is present in the United States 18 U.S.C. 2441 Offense: - war crimes Jurisdictional factors: - an American or member of the American armed forces was the victim of the offense; or - the offender was an American or member of the American armed forces 49 U.S.C. 46502(b) Offenses: - air piracy outside the special aircraft jurisdiction of the United States); or - attempted air piracy outside the special aircraft jurisdiction of the United States Jurisdictional factors: - a United States national was aboard; - the offender was a United States national; or - the offender is afterwards found in the United States D. Others 18 U.S.C. 175c (variola virus (small pox)) Jurisdictional factors: - the offender or victim was a United States national; - the offense occurred in or affected interstate or foreign commerce - the offense was committed against U.S. property; or - the offender aided or abetted the commission of an offense under the section for which there was extraterritorial jurisdiction Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 351 Offenses: - killing, kidnaping, attempting or conspiring to kill or kidnap, or assaulting a Member of Congress, a Supreme Court Justice, or senior executive branch official Jurisdictional factors: CRS-48 - "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C. 351(i) 18 U.S.C. 877 (mailing threatening communications to the United States from foreign countries) 18 U.S.C. 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas) 18 U.S.C. 1029 Offenses: - fraud related to access devices; or - attempting or conspiring to commit the offense Jurisdictional factors: - involves a device issued, managed or controlled by an entity within the jurisdiction of the United States and - item used in the offense or proceeds are transported or transmitted to or through the United States or deposited here, 18 U.S.C. 1029(h) 18 U.S.C. 1119 (killing of American by an American in a foreign country) 18 U.S.C. 1204 (parental kidnaping by retaining a child outside the United States) 18 U.S.C. 1512 Offenses: - tampering with a federal witness or informant; or - attempting to tamper with a federal witness or informant Jurisdictional factors: - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C. 1512(g) 18 U.S.C. 1513 Offenses: - retaliating against a federal witness or informant; or - attempting to retaliate against a federal witness or informant Jurisdictional factors: - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C. 1513(d)) 18 U.S.C. 1585 (service aboard a slave vessel by an American or American resident) 18 U.S.C. 1586 (service aboard a vessel transporting slaves from one foreign country to another by an American or American resident) 18 U.S.C. 1587 (captain of a slave vessel hovering off the coast of the United States) 18 U.S.C. 1651 (piracy upon the high seas where the offender is afterwards brought into or found in the United States) 18 U.S.C. 1652 (Americans acting as privateers against the United States or Americans on the high seas) 18 U.S.C. 1653 (acts of piracy upon the high seas committed against the United States or Americans by aliens) 18 U.S.C. 1654 (Americans arming or serving on privateers outside the United States to be used against the United States or Americans) 18 U.S.C. 1751 Offenses: - killing, kidnaping, attempting or conspiring to kill or kidnap, or assaulting the President, Vice President, or a senior White House official Jurisdictional factors: - "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C. 1751(k) 18 U.S.C. 1831-1839 Offenses: - economic espionage; - theft of trade secrets CRS-49 Jurisdictional factors: - “[t]his chapter also applies to conduct occurring outside the United States if” (1) the offender was a United States national or entity organized under United States law; or (2) an act in furtherance was committed here, 18 U.S.C. 1837 18 U.S.C. 1956 Offense: - money laundering Jurisdictional factors: “[t]here is extraterritorial jurisdiction over the conduct prohibited by this section if - the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States; and - the transaction or series of related transactions involves funds. . . of a value exceeding $10,000,” 18 U.S.C. 1956(f) 18 U.S.C. 1957 Offense: - prohibited monetary transactions Jurisdictional factors: - the offense under this section takes place outside the United States, but the defendant is a United States person [other than a federal employee or contractor who is the victim of terrorism]," 18 U.S.C. 1957(d) 18 U.S.C. 1992 (attacks on railroad and mass transit systems engaged in interstate or foreign commerce) 18 U.S.C. 2151 - 2157 (sabotage)(definitions afford protection for armed forces of the United States and "any associate nation" and for things transported "either within the limits of the United States or upon the high seas or elsewhere," 18 U.S.C. 2151) 18 U.S.C. 2260 (production of sexually explicit depictions of children outside the United States with the intent to import into the United States) 18 U.S.C. 2290 Offenses: - destruction of vessels or maritime facilities (18 U.S.C. 2291); or - attempting or conspiring to do so (18 U.S.C. 2291); - imparting or conveying false information (18 U.S.C. 2292; Jurisdictional factors: - victim or offender was a U.S. national; - U.S. national was aboard victim vessel; - victim vessel was a U.S. vessel Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 2332 (killing, attempting or conspiring to kill, or assaulting Americans overseas) (prosecution upon Department of Justice certification of terrorist intent) 18 U.S.C. 2332b Offenses: - terrorist acts transcending national boundaries; or - attempting or conspiring to do so Jurisdictional factors: - use of U.S. mail or other facility of United States foreign commerce; - affects foreign commerce of the United States; - victim was federal officer or employee or United States government; or - the offenses was committed within the special maritime or territorial jurisdiction of the United States 18 U.S.C. 2339B Offenses: - providing material support or resources to designated terrorist organizations by one "subject to the jurisdiction of the United States;" or CRS-50 - attempting or conspiring to do so Jurisdictional factors: - "[t]here is extraterritorial jurisdiction over an offense under this section," 18 U.S.C. 2339B(d) 18 U.S.C. 2339D (receipt of military training from a foreign terrorist organization) Jurisdictional factors: - the offender was a United States national; - the offender was habitual resident of the United States; - the offender is present in the United States; - the offense was committed in part in the United States; - the offense occurred in or affected interstate or foreign commerce; or - the offender aided or abetted a violation of the section over which extraterritorial jurisdiction exists; 18 U.S.C. 2381 (treason) ("within the United States or elsewhere") 18 U.S.C. 2423 (U.S. citizen or resident alien traveling overseas with the intent to commit illicit sexual activity or traveling overseas and thereafter engaging in illicit sexual activity) 18 U.S.C. 3271(overseas trafficking in persons by those employed by or accompanying the United States) 21 U.S.C. 959 Offenses: - manufacture, distribution or possession of illicit drugs for importation into the United States Jurisdictional factors: - "this section is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States. . . ." 21 U.S.C. 959(c) 21 U.S.C. 960A (narco-terrorism) Jurisdictional factors: - the offense was a U.S. drug or terrorism offense; - the offender provided pecuniary value for terrorist offense to injury a U.S. national or damage U.S. property outside the United States; - the offense was committed in part in the United States and the offender is a U.S. national; or - the offense occurred in or affected interstate or foreign commerce; 46 U.S.C. App. 1903 Offenses: - manufacture, distribution or possession of controlled substances on various vessels outside United States maritime jurisdiction Jurisdictional factors: - the vessel is a "vessel without nationality"; or - the vessel is of foreign registry or located within foreign territorial waters and the foreign nation has consent to application of the United States law II. Federal Crimes Subject to Federal Prosecution When Committed Overseas185 A. Homicide 7 U.S.C. 2146* (killing federal animal transportation inspectors) 185 * Statutes assumed to have implied extraterritorial application based on Bowman, Ford, and/or decisions in the lower federal courts discussed, supra. The lists appended here are exemplary rather than not exhaustive. CRS-51 8 U.S.C. 1324* (death resulting from smuggling aliens into the U.S.) 15 U.S.C. 1825(a)(2)(C)* (killing those enforcing the Horse Protection Act) 18 U.S.C. 32 (death resulting from destruction of aircraft or their facilities) Jurisdictional factors: - aircraft was in the special aircraft jurisdiction of the United States; - the victim or offender was a United States national; or - the offender is found in the United States Attempt/Conspiracy attempt and conspiracy are included 18 U.S.C. 33 (death resulting from destruction of motor vehicles or their facilities used in United States foreign commerce) 18 U.S.C. 37 (death resulting from violence at international airports) Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 38 (death result from fraud involving aircraft or space vehicle parts) Jurisdictional factors: - the victim or offender was an entity organized under United States. law; - the victim or offender was a United States national; or - an act in furtherance of the offense was committed in the United States) 18 U.S.C. 43 Offense (where death results): - travel to disrupt an animal enterprise; - causing damages of over $10,000 to an animal enterprise; or - conspiring to cause damages of over $10,000 to an animal enterprise Jurisdictional factors: - the offense involved travel in the foreign commerce of the United States; or - the offense involved use of the mails or other facility in the foreign commerce of the United States 18 U.S.C. 115(a)(1)(A)* (murder, attempted murder or conspiracy to murder of a family member of a United States officer, employee or judge with intent to impede or retaliate for performance of federal duties) 18 U.S.C. 115(a)(1)(B)* (murder, attempted murder or conspiracy to murder of a former United States officer, employee or judge or any member of their families in retaliation for performance of federal duties) 18 U.S.C. 175 (death resulting from biological weapons offenses) Jurisdictional factors: - a victim was a United States national; or - the offender was a United States national 18 U.S.C. 175c (variola virus (small pox)) Jurisdictional factors: - the offender or victim was a United States national; - the offense occurred in or affected interstate or foreign commerce - the offense was committed against U.S. property; or - the offender aided or abetted the commission of an offense under the section for which there was extraterritorial jurisdiction 18 U.S.C. 229 (death resulting from chemical weapons offenses) Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - committed against United States property 18 U.S.C. 351 (killing a Member of Congress, cabinet officer, or Supreme Court justice) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C. 794 (death resulting from disclosing the identify of an American agent to foreign powers) 18 U.S.C. 831 Offenses: - unlawful possession of nuclear material where the offender causes the death of another; or - attempting or conspiring to do so Jurisdictional factors: CRS-52 - the offense is committed within the special aircraft or special maritime and territorial jurisdiction of the United States; - a United States national or an American legal entity was the victim of the offense; - the offender was a United States national or an American legal entity; or - the offender is afterwards found in the United States; - the offense involved a transfer to or from the United States; or - the offense was a threat directed against the United States 18 U.S.C.844(d) (death resulting from the unlawful transportation of explosives in United States foreign commerce) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C. 844(f)* (death resulting from bombing federal property) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C. 844(i) (death resulting from bombing property used in or used in an activity which affects United States foreign commerce) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C.930* (killing or attempting to kill another during the course of possessing, introducing, or attempting to possess or introduce a firearm or other dangerous weapon in a federal facility) 18 U.S.C. 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas) 18 U.S.C.1091 (genocide when the offender is a United States national) 18 U.S.C.1111 (murder within the special maritime jurisdiction of the United States) 18 U.S.C.1112 (manslaughter within the special maritime jurisdiction of the United States) 18 U.S.C.1113 (attempted murder or manslaughter within the special maritime jurisdiction of the United States) 18 U.S.C.1114* (murder of a federal employee, including a member of the United States military, or anyone assisting a federal employee or member of the United States military during the performance of (or on account of the performance of official duties) 18 U.S.C.1116 (killing an internationally protected person) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C.1117 (conspiracy to kill an internationally protected person) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C.1119 (a United States national killing or attempting to kill a United States national outside the United States) 18 U.S.C.1120* (murder by a person who has previously escaped from a federal prison) 18 U.S.C.1121(a)* (killing another who is assisting or because of the other's assistance in a federal criminal investigation or killing (because of official status) a state law enforcement officer assisting in a federal criminal investigation) 18 U.S.C.1201 (kidnaping where death results) Jurisdictional factors: - the victim is removed from the United States; - the offense occurs within the special aircraft or special maritime and territorial jurisdiction of the United States; - the victim is a federal officer or employee; or - the victim is an internationally protected person and + the victim was a United States national; + the offender was a United States national; or CRS-53 + the offender is afterwards found in the United States Attempt/conspiracy attempt and conspiracy are included 18 U.S.C.1203 ( hostage taking where death results) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States Attempt/conspiracy attempt and conspiracy are included 18 U.S.C.1347* (defrauding U.S. health care program where death results) 18 U.S.C.1365* (tampering with consumer products where death results (in the United States)) 18 U.S.C.1503* (killing another to obstruct federal judicial proceedings) Attempt/conspiracy attempt is included 18 U.S.C.1512 (tampering with a federal witness or informant where death results) Jurisdictional factors: - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1512(g) Attempt/conspiracy attempt is included 18 U.S.C. 1513 (retaliating against a federal witness or informant) Jurisdictional factors: - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1513(d)) Attempt/conspiracy attempt is included 18 U.S.C. 1652 (murder of an American by an American on the high seas in the name of a foreign state or person) 18 U.S.C. 1751 (killing the President, Vice President, or a senior White House official Jurisdictional factors: - "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.1751(k) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C. 1952 (U.S.-foreign travel or use of the mails or of a facility of U.S. foreign commerce in furtherance of a violation of federal arson laws) 18 U.S.C. 1958 (commission of murder for hire in violation of U.S. law where death results) Jurisdictional factor - use U.S. foreign travel facilities, or - use of mails or U.S. foreign commerce facilities Attempt/conspiracy - includes conspiracy 18 U.S.C. 1992 (attacks on railroad and mass transit systems engaged in interstate or foreign commerce) Attempt/conspiracy - includes attempts and conspiracy 18 U.S.C. 2118 (killing resulting from a robbery or burglary involving controlled substances) Jurisdictional factors • offense involved - travel in U.S. foreign commerce, or - use of a facility in U.S. foreign commerce Attempt/Conspiracy attempt and conspiracy prohibitions are included 18 U.S.C. 2119 (death resulting from carjacking) Jurisdictional factors - car transported, shipped or received in U.S. foreign commerce in the course of the offense CRS-54 18 U.S.C.2241, 2245, (aggravated sexual abuse within the special maritime and territorial jurisdiction of the United States where death results) 18 U.S.C.2242, 2245 (sexual abuse within the special maritime and territorial jurisdiction of the United States where death results) 18 U.S.C.2243, 2245 (sexual abuse of a minor or ward within the special maritime and territorial jurisdiction of the United States where death results) 18 U.S.C.2244,2245 (abusive sexual contact within the special maritime and territorial jurisdiction of the United States where death results) 18 U.S.C. 2261A (death resulting from interstate stalking violation involving use of the mails or a facility in U.S. foreign commerce) Jurisdictional factors - travel in U.S. maritime jurisdiction - travel in U.S. foreign commerce 18 U.S.C. 2280 (a killing resulting from violence against maritime navigation) Jurisdictional factors - aboard a ship of American registry - committed by an American national aboard a ship of foreign registry or outside the U.S. - victim was an American - committed in the territorial waters of another country and the offender is subsequently found in the U.S., or - committed in an effort to compel federal action or abstention 18 U.S.C. 2281 (resulting from violence against fixed maritime platforms) Jurisdictional factors - aboard a platform on the U.S. continental shelf - committed by an American national aboard a platform on the continental shelf of another nation - victim was an American - committed aboard a platform on the continental shelf of another nation and the offender is subsequently found in the U.S., or - committed in an effort to compel federal action or abstention 18 U.S.C. 2283 (transportation of explosives, biological, chemical, radioactive or nuclear materials for terrorist purposes on the high seas or aboard a U.S. vessel or in U.S. waters) 18 U.S.C. 2290 Offenses: - destruction of vessels or maritime facilities (18 U.S.C. 2291); or - attempting or conspiring to do so (18 U.S.C. 2291); Jurisdictional factors: - victim or offender was a U.S. national; - U.S. national was aboard victim vessel; - victim vessel was a U.S. vessel Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 2332 (killing an American overseas) Jurisdictional factors - prosecution only on DoJ certification “to coerce, intimidate, or retaliate against a government or civilian population” Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 2332a (resulting from use of weapons of mass destruction) Jurisdictional factors - victim or offender is American, or - against federal property Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 2332f (resulting from bombing of public places, government facilities, public transportation systems or infrastructure facilities)(effective when the terrorist bombing treaty enters into force for the U.S.) CRS-55 Jurisdictional factors - victim or offender is American, - aboard aircraft operated by the U.S. - aboard vessel of aircraft of U.S. registry - offender is found in the U.S. - committed to coerce U.S. action, - against federal property Attempt/conspiracy includes attempts and conspiracies 18 U.S.C. 2340A (resulting from torture committed outside the U.S.(physical or mental pain inflicted under color of law upon a prisoner)) Jurisdictional factors - American offender, or - offender subsequently found within the U.S. Attempt/conspiracy includes attempts 18 U.S.C. 2441 (war crimes) Jurisdictional factors - victim or offender is an American, or - victim or offender is a member of U.S. armed forces 18 U.S.C. 3261(offenses committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) 21 U.S.C.461(c)* (murder of federal poultry inspectors during or because of official duties) 21 U.S.C.675* (murder of federal meat inspectors during or because of official duties) 21 U.S.C.848(e)(1)(B)* (killing a federal or state law enforcement official furtherance of a federal drug felony) 21 U.S.C.1041(c)* (murder of an egg inspector during or because of official duties) 42 U.S.C.2000e-13* (murder, manslaughter or attempted murder or manslaughter of EEOC personnel) 42 U.S.C.2283* (killing federal nuclear inspectors during or because of official duties) 49 U.S.C. 46502 (air piracy where death results) 49 U.S.C.46506 (murder, manslaughter, or attempted murder or manslaughter within the special aircraft jurisdiction of the United States) B. Kidnaping 18 U.S.C.115(a)(1)(A)* (kidnaping, attempted kidnaping or conspiracy to kidnap a family member of a United States officer, employee or judge with intent to impede or retaliate for performance of federal duties) 18 U.S.C.115(a)(1)(B)* (kidnaping, attempted kidnaping or conspiracy to kidnap a former United States officer, employee or judge or any member of their families in retaliation for performance of federal duties) 18 U.S.C.351 (kidnaping a Member of Congress, a Supreme Court Justice, or senior executive branch official) Jurisdictional factors: - "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.351(i) Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas) 18 U.S.C.1201 (kidnaping) Jurisdictional factors: - the victim is removed from the United States; CRS-56 - the offense occurs within the special aircraft or special maritime and territorial jurisdiction of the United States; - the victim is a federal officer or employee; or - the victim is an internationally protected person and + the victim was a United States national; + the offender was a United States national; or + the offender is afterwards found in the United States 18 U.S.C.1203 (hostage taking) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C. 1204 (international parental kidnaping detaining a child outside of the United States in violation of parental custody rights) 18 U.S.C. 3261(offenses committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) C. Assaults 7 U.S.C.60* (assault designed to influence administration of federal cotton standards program) 7 U.S.C.87b* (assault designed to influence administration of federal grain standards program) 7 U.S.C.473c-1* (assaults on cotton samplers to influence administration of federal cotton standards program) 7 U.S.C.511i* (assaults on designed to influence administration of federal tobacco inspection program) 7 U.S.C.2146* (assault of United States animal transportation inspectors) Jurisdictional factors: - use of U.S. mail or other facility of United States foreign commerce; - affects foreign commerce of the United States; - victim was federal officer or employee or United States government; or - the offenses was committed within the special maritime or territorial jurisdiction of the United States 15 U.S.C.1825(a)(2)(C)* (assaults on those enforcing the Horse Protection Act)) 16 U.S.C.773e* (assaults on officials responsible for enforcing the Northern Pacific Halibut Act) 16 U.S.C.973c* (assaults on officials responsible for enforcing the South Pacific tuna conversation provisions) 16 U.S.C.1417* (assaults on officials conducting searches or inspections with respect to the global moratorium on tuna harvesting practices) 16 U.S.C.1436* (assaults on officials conducting searches or inspections with respect to the marine sanctuaries) 16 U.S.C.1857, 1859* (assaults on officials conducting searches or inspections with respect to the federal fisheries management and conservation program) 16 U.S.C.2403, 2408* (assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States with respect Antarctic conservation) 16 U.S.C.2435* (assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States in enforcement of the Antarctic Marine Living Resources Convention) 16 U.S.C.3637* (assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States with respect Pacific salmon conservation) 16 U.S.C.5009* (assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States with respect North Pacific anadromous stock conservation) 16 U.S.C.5505* (assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States with respect high seas fishing compliance) 16 U.S.C.5606* (assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States with respect Northwest Atlantic Fisheries Convention compliance) CRS-57 18 U.S.C.37 (violence at international airports) Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States) Attempt/conspiracy - includes attempts and conspiracies 18 U.S.C.111* (assault on a federal office or employee) 18 U.S.C.112 (assaulting an internationally protected person) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C.113 (assault within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.114 (maiming within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.115(a)(1)(A)* (assaults a family member of a United States officer, employee or judge with intent to impede or retaliate for performance of federal duties) 18 U.S.C.115(a)(1)(B)* (assaults a former United States officer, employee or judge or any member of their families in retaliation for performance of federal duties) 18 U.S.C.351 (assaulting a Member of Congress, a Supreme Court Justice, or senior executive branch official; Jurisdictional factor: "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.351(i) 18 U.S.C. 831 Offenses: - unlawful use of nuclear material where the offender causes the serious injury to another; or - attempting or conspiring to do so Jurisdictional factors: - the offense is committed within the special aircraft or special maritime and territorial jurisdiction of the United States; - a United States national or an American legal entity was the victim of the offense; - the offender was a United States national or an American legal entity; or - the offender is afterwards found in the United States; - the offense involved a transfer to or from the United States; or - the offense was a threat directed against the United States 18 U.S.C.844(f)* (burning or bombing federal property where serious injury results) 18 U.S.C.844(i) (burning or bombing property used in or used in activities affecting United States foreign commerce where serious injury results) 18 U.S.C. 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas) 18 U.S.C. 1091 (genocide where serious injury results) Jurisdictional factor: - the offender is a United States national 18 U.S.C.1365* (tampering with consumer products resulting in injury (in the United States)) 18 U.S.C.1501* (assault on a server of federal process) 18 U.S.C.1502* (assaulting a federal extradition agent) 18 U.S.C.1503* (assaulting another to obstruct federal judicial proceedings) 18 U.S.C.1512 (tampering with a federal witness or informant through the use of physical force) Jurisdictional factors: - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1512(g) Attempt/conspiracy attempt is included 18 U.S.C.1513* Offenses (causing physical injury): - retaliating against a federal witness or informant; or - attempting to retaliate against a federal witness or informant Jurisdictional factors: CRS-58 - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1513(d)) 18 U.S.C. 1655 (assaulting the commander of a vessel is piracy) 18 U.S.C.1751 (assaulting the President, Vice President, or a senior White House official; "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.1751(k) 18 U.S.C.2114 * (assault upon one in possession of the property of the United States ) 18 U.S.C. 2191 (cruelty to seamen withing the special maritime jurisdiction of the United States) 18 U.S.C. 2194 (shanghaiing sailors for employment within the foreign commerce of the United States) 18 U.S.C.2241 (aggravated sexual abuse within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.2242 (sexual abuse within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.2243 (sexual abuse of a minor or ward within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.2244 (abusive sexual contact within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.2261 (traveling or causing a spouse to travel in foreign commerce of the United States for purposes of domestic violence) 18 U.S.C.2261A (stalking within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.2262 (traveling or causing a spouse to travel in foreign commerce of the United States for purposes violating protective order) 18 U.S.C.2280 Offenses: - violence committed against maritime navigation; or - attempting or conspiracy to commit violence against maritime navigation Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C.2281 Offenses: - violence committed against a maritime platform; or - attempting or conspiracy to commit violence against a maritime platform Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C.2332 (assaulting a United States national outside the United States) (prosecution upon Department of Justice certification of terrorist intent) 18 U.S.C. 2332a Offenses: - using a weapon of mass destruction outside the United States resulting physical injury; or - attempting, or conspiring to do so Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offense was committed against federal property 18 U.S.C. 2332b Offenses: - terrorist assaults transcending national boundaries; or - attempt or conspiracy Jurisdictional factors: - use of U.S. mail or other facility of United States foreign commerce; - affects foreign commerce of the United States; CRS-59 - victim was federal officer or employee or United States government; or - the offenses was committed within the special maritime or territorial jurisdiction of the United States 18 U.S.C.2340A Offenses: - torture under color of law outside the United States; or - attempted torture Jurisdictional factors: - the offender was a United States national; or - the offender is present in the United States 18 U.S.C. 3261(offenses committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) 21 U.S.C.461(c)* (assaulting federal poultry inspectors) 21 U.S.C.675* (assaulting federal meat inspectors) 21 U.S.C.1041(c)* (assaulting federal egg inspector) 30 U.S.C.1461* (assaults on officials conducting searches or inspections with respect to the Deep Seabed Hard Mineral Resources Act) 42 U.S.C.2000e-13* (assaulting EEOC personnel) 42 U.S.C.2283* (assaulting federal nuclear inspectors) 46 U.S.C. 11501 (seaman’s assault upon officers within the special maritime jurisdiction of the United States) 46 U.S.C. App. 46504 (assaulting officers enforcing regulations of vessels in domestic commerce) 49 U.S.C. 46504 (assaulting a flight crew member within the special aircraft jurisdiction of the United States) 49 U.S.C. 46506 (assaults within the special aircraft jurisdiction of the United States) D. Property Destruction 18 U.S.C. 32 (destruction of aircraft or their facilities) Jurisdictional factors: - aircraft was in the special aircraft jurisdiction of the United States; - the victim or offender was a United States national; or - the offender is found in the United States Attempt/Conspiracy attempt and conspiracy are included 18 U.S.C. 33 (destruction of motor vehicles or their facilities used in United States foreign commerce) 18 U.S.C. 37 (violence at international airports) Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C. 43 Offense: - travel to disrupt an animal enterprise; - causing damages of over $10,000 to an animal enterprise; or - conspiring to cause damages of over $10,000 to an animal enterprise Jurisdictional factors: - the offense involved travel in the foreign commerce of the United States; or - the offense involved use of the mails or other facility in the foreign commerce of the United States 18 U.S.C.81 (arson within the special maritime and territorial jurisdiction of the United States) 18 U.S.C. 229 (chemical weapons damage) Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - committed against United States property CRS-60 18 U.S.C.831 ( use nuclear material of damage or destroy) Jurisdictional factors: - committed within the special aircraft or special maritime and territorial jurisdiction of the United States - a United States national or an American legal entity was the victim of the offense; - the offender was a United States national or an American legal entity; or - the offender is afterwards found in the United States; or - the offense involved a transfer to or from the United States 18 U.S.C.844(f)* (burning or bombing federal property) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C. 844(i) (burning or bombing property used in or used in an activity which affects United States foreign commerce) Attempt/conspiracy attempt and conspiracy are included 18 U.S.C. 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas) 18 U.S.C. 1030 (computer abuse involving damage to federal or U.S. financial systems or systems used in the foreign commerce or communications of the United States) 18 U.S.C.1361* (destruction of federal property) 18 U.S.C.1362* (destruction of federal communications lines, stations or related property) 18 U.S.C.1363 (destruction of property within the special maritime and territorial jurisdiction of the United States) 18 U.S.C. 1992 (attacks on railroad and mass transit systems engaged in interstate or foreign commerce) 18 U.S.C.2071* (destruction of federal records) 18 U.S.C.2153* (war-time destruction of defense materials of the United States or its allies) 18 U.S.C.2155* (destruction of federal national defense materials) 18 U.S.C.2272 (destruction of a vessel within the maritime jurisdiction of the United States by its owner) 18 U.S.C.2273 (destruction of a vessel within the maritime jurisdiction of the United States by others) 18 U.S.C.2275 (burning or tampering with a vessel within the maritime jurisdiction of the United States) 18 U.S.C.2280 (destruction of maritime navigational facilities) Jurisdictional factors: - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C.2281 (damage to a maritime platform) Jurisdictional factors: - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States 18 U.S.C. 2290 Offenses: - destruction of vessels or maritime facilities (18 U.S.C. 2291); or - attempting or conspiring to do so (18 U.S.C. 2291); Jurisdictional factors: - victim or offender was a U.S. national; - U.S. national was aboard victim vessel; - victim vessl was a U.S. vessel 18 U.S.C. 2332a (using a weapon of mass destruction) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offense was committed against federal property 18 U.S.C. 2332f (effective upon the terrorist bombing convention entering into force for the U.S.) (bombing public places, government facilities, or public utilities outside the United States) Jurisdictional factors: - the victim was a United States national; CRS-61 - the offender was a United States national; - the offense was committed against federal property; - the offender is present in the United States; - the offense was committed on United States registered vessel or aircraft; or - the offense was intended to compel action or abstention by the United States 18 U.S.C. 3261(offenses committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) E. Threats 18 U.S.C.32 (threats to destroy foreign civil aircraft, or aircraft in the special aircraft jurisdiction of the United States, or aircraft or aircraft facilities in the special maritime and territorial jurisdiction of the United States) 18 U.S.C. 112 (threatening internationally protected person) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States 18 U.S.C.115(a)(1)(A)* (threats to murder to assault, murder or kidnap a family member of a United States officer, employee or judge with intent to impede or retaliate for performance of federal duties) 18 U.S.C.115(a)(1)(B)* (threats to assault, murder or kidnap a former United States officer, employee or judge or any member of their families in retaliation for performance of federal duties) 18 U.S.C.175 (threatening to develop, produce, stockpile, transfer, acquire, retain, or possess biological weapons or delivery systems misuse of biological weapons; or threatening to assisting a foreign power to do so; "there is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the United States," 18 U.S.C.175(a) 18 U.S.C. 229 (threatening to use chemical weapons) Jurisdictional factors: - the victim or offender was a United States national; or - the offense was committed against federal property 18 U.S.C.831 (threaten to use nuclear material of injury or destroy) Jurisdictional factors: - committed within the special aircraft or special maritime and territorial jurisdiction of the United States - a United States national or an American legal entity was the victim of the offense; - the offender was a United States national or an American legal entity; or - the offender is afterwards found in the United States; - the offense involved a transfer to or from the United States; or - the offense was a threat directed against the United States 18 U.S.C. 871* (threatening the President) 18 U.S.C. 875 (transmission of a threat in the foreign commerce of the United States) 18 U.S.C.877 (mailing a threat to kidnap or injure from a foreign country to the United States) 18 U.S.C.878 (threatening to kill, kidnap or assault an internationally protected person) Jurisdictional factors: - a victim was a United States national; - the offender was a United States national; or - the offender is afterwards found in the United States) 18 U.S.C. 879* (threatening former Presidents) 18 U.S.C.1203 (threaten to kill or injure a hostage outside the United States) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C.1503* (obstruction of federal judicial proceedings by threat) 18 U.S.C.1505* (obstruction of administrative or Congressional proceedings by threat) 18 U.S.C.1512 (threatening a federal witness or informant) Jurisdictional factors: CRS-62 - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1512(g) 18 U.S.C. 1513 (threatening to retaliate against a federal witness or informant) Jurisdictional factors: - "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1513(d)) 18 U.S.C. 1993 (threatening a terrorist attack on mass transit) Jurisdictional factor • mass transit in or affecting U.S. foreign commerce, or • offenders travels or communicates across a state line 18 U.S.C.2280 (threats of violence against maritime navigation) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C.2281 (threatens injury or destruction aboard a fixed maritime platform) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offender is afterwards found in the United States; or - the offense was intended to compel action or abstention by the United States) 18 U.S.C. 2290 Offenses: - destruction of vessels or maritime facilities (18 U.S.C. 2291); or - attempting or conspiring to do so (18 U.S.C. 2291); Jurisdictional factors: - victim or offender was a U.S. national; - U.S. national was aboard victim vessel; - victim vessl was a U.S. vessel 18 U.S.C. 2332a (threatening to use a weapon of mass destruction) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; or - the offense was committed against federal property 18 U.S.C. 2332f (effective upon the terrorist bombing convention entering into force for the U.S.) (threatening to bomb public places, government facilities, or public utilities outside the United States) Jurisdictional factors: - the victim was a United States national; - the offender was a United States national; - the offense was committed against federal property; - the offender is present in the United States; - the offense was committed on United States registered vessel or aircraft; or - the offense was intended to compel action or abstention by the United States 49 U.S.C.46507 (threats or scares concerning air piracy or bombing aircraft in the special aircraft jurisdiction of the United States F. False Statements 8 U.S.C.1160(b)(7)(A)* (falsification of an application for immigration status) 15 U.S.C.158* (false or fraudulent statements by China Trade Act corporate personnel) 15 U.S.C.645* (false statements associated with the Small Business Administration) 15 U.S.C.714m* (false statements associated with the Commodity Credit Corporation) 16 U.S.C.831t* (false statements associated with TVA) 18 U.S.C.152 * (false statements in bankruptcy) 18 U.S.C.287* (false or fraudulent claims against the United States) 18 U.S.C.288* (false claims for postal loses) 18 U.S.C.289* (false claims for pensions) CRS-63 18 U.S.C.541 (entry of goods falsely classified) 18 U.S.C.542 (entry of goods by means of false statements) 18 U.S.C.550 (false claim for refund of duties) 18 U.S.C.1001* (false statement on a matter within the jurisdiction of a federal agency) 18 U.S.C.1002* (possession of false papers to defraud the United States) 18 U.S.C.1003* (fraudulent claims against the United States) 18 U.S.C.1007* (false statements in an FDIC transaction) 18 U.S.C.1011* (false statements in federal land bank mortgage transactions) 18 U.S.C.1014* (false statements in loan or credit applications in which the United States has an interest) 18 U.S.C.1015 (false statements concerning naturalization, citizenship or alien registry) 18 U.S.C.1019 (false certification by consular officer) 18 U.S.C.1020* (false statements concerning highway projects) 18 U.S.C.1022 (false certification concerning material for the military) 18 U.S.C.1027* (false statements to facilitate a theft concerning ERISA) 18 U.S.C.1542 (false statement in application for a passport) 18 U.S.C.1546 (fraud in connection with visas, permits and other documents) 18 U.S.C.1621* (perjury) 18 U.S.C.1622* (subornation of perjury) 22 U.S.C.1980* (false statement to obtain compensation for loss of commercial fishing vessel or gear) 22 U.S.C.4221 (perjury or false swearing before American diplomatic personnel) 22 U.S.C.4222 (presentation of forged documents to United States foreign service personnel) 42 U.S.C.408* (false statement in old age claims) 42 U.S.C.1320a-7b* (false statements concerning Medicare) G. Theft 7 U.S.C.2024(b)* (food stamp fraud) 15 U.S.C.645* (embezzlement or fraud associated with the Small Business Administration) 15 U.S.C.714m* (embezzlement or fraud associated with the Commodity Credit Corporation) 16 U.S.C.831t* (theft associated with TVA) 18 U.S.C.371 (conspiracy to defraud the United States) 18 U.S.C.641* (theft of federal property) 18 U.S.C.645* (theft by federal court officers) 18 U.S.C.648* (theft of federal property by custodians) 18 U.S.C.656* (embezzlement from a federally insured bank) 18 U.S.C.657* (embezzlement from a federally insured credit union) 18 U.S.C.658* (theft of property mortgaged or pledged to federal farm credit agencies) 18 U.S.C.661 (theft within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.662 (receipt of stolen property within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.831 (theft of nuclear materials) Jurisdictional factors: - within the special aircraft or special maritime and territorial jurisdiction of the United States; - the victim was a United States national or an American legal entity; - the offender was a United States national or an American legal entity; - the offender is afterwards found in the United States; or - the offense involved a transfer to or from the United States 18 U.S.C.1025 (theft by false pretenses or fraud within the special maritime and territorial jurisdiction of the United States) 18 U.S.C.793-798* (espionage) 18 U.S.C.1010* (fraud to secure loan or credit advance from HUD) CRS-64 18 U.S.C.1013* (fraud in connection with farm loan bonds or credit bank debentures) 18 U.S.C.1023* (fraud in connection with deliveries for military services) 18 U.S.C.1024* (receipt of stolen military property) 18 U.S.C.1026* (fraudulently securing the cancellation of farm debt to the United States) 18 U.S.C.1030* (fraud in connection with computers) 18 U.S.C.1031* (major fraud against the United States) 18 U.S.C.1506* (theft or alteration of court records) 18 U.S.C.1707* (theft of postal service property) 18 U.S.C.1711* (theft of postal funds) 18 U.S.C.2071* (destruction of United States records) 18 U.S.C.2112* (robbery of the personal property of the United States) 18 U.S.C.2115* (robbery of a post office) 18 U.S.C. 3261(offenses committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas) 20 U.S.C.1097* (fraud in connection with financial aid to students) 22 U.S.C.4217* (embezzlement by American diplomatic personnel) 25 U.S.C.450d* (theft involving the Indian Self-Determination and Education Assistance Act) 38 U.S.C.787* (fraud concerning veterans' life insurance) 42 U.S.C.1307* (social security fraud) 42 U.S.C.1383a* (fraud in connection with supplemental security income for the blind, aged and disabled) 42 U.S.C.1713* (fraud in connection in connection with claims for injuries overseas associated with contracts for the United States) 42 U.S.C.1760(g)* (theft in connection with the school lunch program) 42 U.S.C.1761(o)* (fraud in connection with summer food programs) 42 U.S.C.3220* (fraud and theft concerning public works and economic development) 42 U.S.C.3795* (fraud or theft of funds associated with the Office of Justice Programs) 45 U.S.C.359* (fraud in connection with railroad unemployment insurance) 46 U.S.C. App. 1276* (fraud in connection with federal ship mortgage insurance) H. Counterfeiting 18 U.S.C.470-474 (counterfeiting United States obligations outside the United States) 18 U.S.C.484* (connecting parts of different notes of the United States) 18 U.S.C.486* (uttering United States coins of gold, silver or other metal) 18 U.S.C.487* (making or possessing counterfeit dies for United States coins) 18 U.S.C.490* (counterfeiting minor United States coins) 18 U.S.C.491* (counterfeiting tokens or paper used as money of the United States) 18 U.S.C.493* (counterfeiting bonds and obligations of certain federal lending agencies) 18 U.S.C.494* (forging contractors bonds, bids or public records in order to defraud the United States) 18 U.S.C.495* (forging contracts, deeds or powers of attorney in order to defraud the United States) 18 U.S.C.496* (counterfeiting United States customs entry certificates) 18 U.S.C.497* (counterfeiting United States letters patent) 18 U.S.C.498* (counterfeiting United States military or naval discharge certificates) 18 U.S.C.499* (counterfeiting United States military, naval or official passes) 18 U.S.C.500 *(counterfeiting United States postal money orders) 18 U.S.C.501* (counterfeiting United States postal stamps) 18 U.S.C.503* (counterfeiting postmarking stamps) 18 U.S.C.505* (counterfeiting federal judicial documents) 18 U.S.C.506* (counterfeiting federal agency seals) 18 U.S.C.507* (forging or counterfeiting ships papers) 18 U.S.C.508* (forging or counterfeiting government transportation requests) 18 U.S.C.509* (possession of plates to counterfeiting government transportation requests) 18 U.S.C.510* (forging endorsements on Treasury checks) 18 U.S.C.513* (counterfeiting state securities) CRS-65 18 U.S.C.514* (transmitting, transporting, or sending a fictitious U.S. financial instrument in the foreign commerce of the United States) I. Piggyback Statutes 18 U.S.C.2 (principals) 18 U.S.C.3 (accessories after the fact) 18 U.S.C.4 (misprision) 18 U.S.C.371 (conspiracy) 18 U.S.C.924(c), (j) (using or carrying a firearm during the course of a federal crime of violence or drug trafficking crime) 18 U.S.C.1952 (Travel Act) 18 U.S.C.1956-1957 (money laundering) 18 U.S.C.1959 (violence in aid of racketeering) 18 U.S.C.1961-1965 (RICO) 21 U.S.C.846 (conspiracy or attempt to violate the Controlled Substances Act) 21 U.S.C.963 (conspiracy or attempt to violate the Controlled Substances Import and Export Act) III. Model Penal Code §1.03 Territorial Applicability (1) Except as otherwise provided in this Section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if: (a) either the conduct that is an element of the offense or the result that is such an element occurs within this State; or (b) conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit an offense within the State; or (c) conduct occurring outside the State is sufficient under the law of this State to constitute a conspiracy to commit an offense within the state and an overt act in furtherance of such conspiracy occurs within the state; or (d) conduct occurring within the State establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit , an offense in another jurisdiction that also is an offense under the law of this State; or (e) the offense consists of the omission to perform a legal duty imposed by the law of this State with respect to domicile, residence or a relationship to a person, thing or transaction in the State; or (f) the offense is based on a statute of this State that expressly prohibits conduct outside the State, when the conduct bears a reasonable relation to a legitimate interest of this State and the actor knows or should know that his conduct is likely to affect that interest. (2) Subsection (1)(a) does not apply when either causing a specified result or a purpose to cause or danger of causing such a result is an element of an offense and the result occurs or is designed or likely to occur only in another jurisdiction where the conduct charged would not constitute an offense, unless a legislative purpose plainly appears to declare the conduct criminal regardless of the place of the result. (3) Subsection (1)(a) does not apply when causing a particular result is an element of an offense and the result is caused by conduct occurring outside the State that would not constitute an offense if the result had occurred there, unless the actor purposely or knowingly caused the result within the State. (4) When the offense is homicide, either the death of the victim or the bodily impact causing death constitutes a result within the meaning of Subsection (a)(1), and if the body of a homicide victim is found within the State, it is presumed that such result occurred within the State. (5) This State includes the land and water and the air space above such land and water with respect to which the State has legislative jurisdiction. CRS-66 IV. Florida State Special Maritime Criminal Jurisdiction Statute (1) Legislative findings and intent. -(a) The State of Florida is a major center for international travel and trade by sea. (b) The state has an interest in ensuring the protection of persons traveling to or from Florida by sea. (c) The state has an interest in cooperating with the masters of ships and the governments of the United States and the other states in the maintenance of law and order on board ship. (d) The interests of the state do not in principle require a general assertion of primary jurisdiction over acts or omissions at sea that would duplicate or conflict with the execution of any law enforcement responsibility of any other jurisdiction. (e) The State of Florida should establish special maritime criminal jurisdiction extending to acts or omissions on board ships outside of the state under the circumstances delimited in this section. (2) Definitions. -- As used in this section: (a) "Flag state" means the state under whose laws a ship is registered. (b) "Ship" means any watercraft or other contrivance used, capable of being used, or intended to be used as a means of transportation on water, and all phases of construction of such watercraft or contrivance. (c) "State" means any foreign state, the United States or any state, territory, possession, or commonwealth thereof, or the District of Columbia. (3) Special maritime criminal jurisdiction. – The special maritime criminal jurisdiction of the state extends to acts or omissions on board a ship outside of the state under any of the following circumstances: (a) There is a suspect on board the ship who is a citizen or resident of this state or a state which consents to jurisdiction of this state. (b) The master of the ship or an official of the flag state commits a suspect on board the ship to the custody of a law enforcement officer acting under the authority of this state. (c) The state in whose territory the act or omission occurred requests the exercise of jurisdiction in this state. (d) The act or omission occurs during a voyage on which over half of the revenue passengers on board the ship originally embarked and play to finally disembark in this state, without regard to intermediate stopovers. (e) The victim is a Florida law enforcement officer on board the ship in connection with his official duties. (f) The act or omission is one of violence, detention, or depredation generally recognized as criminal, and the victim is a resident of this state. (g) The act or omission causes or constitutes an attempt or conspiracy to cause a substantial effect in this state that is an element of the offense charged. (h) The act or omission is one with respect to which all states may exercise criminal jurisdiction under international law or treaty. (4) Criminal penalty application. – An act or omission against the person or property of another that is punishable by law when committed within this state shall be punishable in the same manner when committed within the special maritime criminal jurisdiction of this state, provided that the criminal laws of the United States prohibit substantially the same act or omission on board ships of the United States registry outside of the territory of the United States. Except for the circumstances that are within the criteria of paragraphs (3)(g) and (h), it shall be an affirmative defense that the act or omission was authorized by the master of the ship or an officer of the flag state in accordance with the laws of the flag state and international law. No person shall be tried under this section if that person has been tried in good faith by another state for substantially the same act or omission. (5) Enforcement limitations. – (a) The Attorney General shall take all measures necessary to ensure that law enforcement officers and prosecutors acting under the authority of this state respect the following criteria in applying the provisions of this section: CRS-67 1. This section is not intended to assert priority over or otherwise interfere with the exercise of criminal jurisdiction by the United States, the flag state, or the state in whose territory an act or omission occurs. 2. This section shall be administered in a manner consistent with international law, with the primary responsibility of the flag state for the maintenance of order on board ship, and with the responsibilities of the Federal Government under the Constitution, treaties, and laws of the United States. 3. This section shall be applied with the cooperation of the flag state and the master of the ship where feasible. (b) Nothing in this section shall be deemed to: 1. Authorize the boarding, search, or detention of a ship or of persons or property on board a ship without the consent of the flag state or the master of the ship if the ship is located outside of this state or if the necessary law enforcement activities are otherwise beyond the jurisdiction of the United States. 2. Restrict the application or enforcement of other laws of this state or the duty of law enforcement officers to protect human life, property, or the marine environment from imminent harm. 3. Constitute an assertion of jurisdiction over acts or omissions of military or law enforcement officers authorized by a state in accordance with international laws. 4. Prohibit the operation of gambling, games of chance, or other gambling activities otherwise allowable outside the territorial waters of the State of Florida. Fla.Stat.Ann. §910.006. V. Restatement of the Law Third: The Foreign Relations Law of the United States §401. Categories of Jurisdiction Under international law, a state is subject to limitations on (a) jurisdiction to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court; (b) jurisdiction to adjudicate, i.e., to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings; (c) jurisdiction to enforce, i.e., to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action. §402. Bases of Jurisdiction to Prescribe Subject to §403, a state has jurisdiction to prescribe law with respect to (1)(a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory; (2) the activities, interests, status, or relations of its nationals outside as well as within its territory; and (3) 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. §403. Limitations on Jurisdiction to Prescribe (1) Even when one of the bases for jurisdiction under §402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable. (2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate: (a) the link of the activity to the territory of the regulated state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; CRS-68 (b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; (d) the existence of justified expectations that might be protected or hurt by the regulation; (e) the importance of the regulation to the international political, legal, or economic system; (f) the extent to which the regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by another state. (3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, Subsection (2); a state should defer to the other state if that state's interest is clearly greater. §404. Universal Jurisdiction to Define and Punish Certain Offenses 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 of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the jurisdiction indicated in §402 is present. §421. Jurisdiction to Adjudicate (1) A state may exercise jurisdiction through its courts to adjudicate with respect to a person or thing if the relationship of the state to the person or thing is such as to make the exercise of jurisdiction reasonable. (2) In general, a state's exercise of jurisdiction to adjudicate with respect to a person or thing is reasonable if, at the time jurisdiction is asserted: (a) the person or thing is present in the territory of the state, other than transitorily; (b) the person, if a natural person, is domiciled in the state; (c) the person, if a natural person, is resident in the state; (d) the person, if a natural person, is a national of the state; (e) the person, if a corporation or comparable juridical person, is organized pursuant to the law of the state; (f) a ship, aircraft, or other vehicle to which the adjudication relates is registered under the laws of the state; (g) the person, whether natural or juridical, has consented to the exercise of jurisdiction; (h) the person, whether natural or juridical, regularly carries on business in the state; (i) the person, whether natural or juridical, had carried on activity in the state, but only in respect to such activity; (j) the person, whether natural or juridical, had carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect to such activity; or (k) the thing that is the subject of adjudication is owned, possessed, or used in the state, but only in respect to a claim reasonably connected with that thing. (3) A defense of lack of jurisdiction is generally waived by any appearance by or on behalf of a person or thing (whether as plaintiff, defendant, or third party), if the appearance is for a purpose that does not include a challenge to the exercise of jurisdiction. §431. Jurisdiction to Enforce (1) A state may employ judicial or nonjudicial measures to induce or compel compliance or punish noncompliance with its laws or regulations, provided it has jurisdiction to prescribe in accordance with §§402 and 403. (2) Enforcement measures must be reasonably related to the laws or regulations to which they are directed; punishment for noncompliance must be preceded by an appropriate determination of violation and must be proportional to the gravity of the violation. (3) A state may employ enforcement measures against a person located outside the territory (a) if the person is given notice of the claims or charges against him that is reasonable in the circumstances; CRS-69 (b) if the person is given an opportunity to be heard, ordinarily in advance of enforcement, whether in person or by counsel or other representative; and (c) when enforcement is through the courts, if the state has jurisdiction to adjudicate. VI. 18 U.S.C.7: Special Maritime and Territorial Jurisdiction of the United States The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line. (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. (4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States. (5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, District, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard. (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. (9) With respect to Offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act-(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title. CRS-70 V. Military Extraterritorial Jurisdiction Act of 2000 18 U.S.C. 3261 18 U.S.C. 3261. Criminal offenses committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States (a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States – (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense. (b) No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated. (c) Nothing in this chapter may be construed to deprive a court- martial, military commission, provost court, or other military tribunal of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by a court-martial, military commission, provost court, or other military tribunal. (d) No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless – (1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter. CRS-71 Bibliography BOOKS AND ARTICLES Abbell, EXTRADITION TO AND FROM THE UNITED STATES (2002). Abramovsky, Extraterritorial Jurisdiction: The United States Unwarranted Attempt to Alter International Law in United States v. Yunis, 15 YALE JOURNAL OF INTERNATIONAL LAW 121 (1990) Abramovsky & Edelstein, Time for Final Action on 18 U.S.C. 3292, 21 MICHIGAN JOURNAL OF INTERNATIONAL LAW 941 (2000) American Law Institute, RESTATEMENT OF THE LAW THIRD: THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987) Bassiouni, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE (4th ed. 2002). Bentley, Toward an International Fourth Amendment: Rethinking Searches and Seizures Abroad After Verdugo-Urquidez, 27 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 329 (1994) Blakesley, A Conceptual Framework for Extradition and Jurisdiction Over Extraterritorial Crimes, 1984 UTAH LAW REVIEW 685 Birkett, Cracks in the Foundation of Extraterritorial Law Enforcement -- A Challenge to Basic Judicial Doctrines, 15 SOUTHERN ILLINOIS UNIVERSITY LAW JOURNAL 895 (1991) Born, Reappraisal of the Extraterritorial Reach of United States Law, 24 LAW & POLICY INTERNATIONAL BUSINESS 1 (1992) IN Bradley, Universal Jurisdiction and United States Law, 2001 UNIVERSITY OF CHICAGO LEGAL FORUM 323 Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 LAW & CONTEMPORARY PROBLEMS 11 (1987) Brilmayer & Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARVARD LAW REVIEW 1217 (1992) Carey, Should American Courts Listen to What Foreign Courts Hear? The Confrontation and Hearsay Problems of Prior Testimony Taken Abroad in Criminal Proceedings, 29 AMERICAN JOURNAL OF CRIMINAL LAW 29 (2001) Earls, Extraterritorial Application of the Fraud Provisions of the Commodity Exchange Act, 41 WASHINGTON & LEE LAW REVIEW 41 (1984) Feinberg, Extraterritorial Jurisdiction and the Proposed Federal Criminal Code, 72 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 385 (1981) Fisher, Trends in Extraterritorial Narcotics Control: Slamming the Stable Door After the Horse Has Bolted, 16 NEW YORK JOURNAL OF INTERNATIONAL LAW & POLITICS 353 (1984) Gans, Reasonableness as a Limit to Extraterritorial Jurisdiction, 62 WASHINGTON UNIVERSITY LAW QUARTERLY 681 (1985) George, Extraterritorial Application of Penal Legislation, 64 MICHIGAN LAW REVIEW 609 (1966) Gerger, Beyond Balancing: International Law Restraints on the Reach of National Laws, 10 YALE JOURNAL OF INTERNATIONAL LAW 185 (1984) CRS-72 Gibney, The Extraterritorial Application of United States Law: The Perversion of Democratic Governance, the Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles, 19 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW 297 (1996) Gordon, United States Extraterritorial Subject Matter Jurisdiction in Securities Fraud Litigation, 10 FLORIDA JOURNAL OF INTERNATIONAL LAW 487 (1996) Grandman, New Imperialism: The Extraterritorial Application of United States Law, 14 INTERNATIONAL LAWYER 257 (1980) Griffin, Foreign Governmental Reactions to United States Assertions of Extraterritorial Jurisdiction, 6 GEORGE MASON LAW REVIEW 505 (1998) Harvard Research in International Law, Jurisdiction With Respect to Crime, 72 AMERICAN JOURNAL OF INTERNATIONAL LAW (SUPP.) 485 (1935) Kane, Prosecuting International Terrorists in United States Courts: Gaining the Jurisdictional Threshold, 12 YALE JOURNAL INTERNATIONAL LAW 294 (1987) Kegel, On the Territorial Principle in International Law, 5 HASTINGS INTERNATIONAL & COMPARATIVE LAW REVIEW 245 (1982) Lowe, The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution, 34 INTERNATIONAL & COMPARATIVE LAW QUARTERLY 724 (1985) Maier, Extraterritorial Jurisdiction at the Crossroads: An Intersection Between Public and Private International Law, 76 AMERICAN JOURNAL OF INTERNATIONAL LAW 280 (1982) , Resolving Extraterritorial Conflicts, or "There and Back Again" (Symposium on the Restatement of Foreign Relations Law of the United States), 25 VIRGINIA JOURNAL OF INTERNATIONAL LAW 7 (1984) McCredie, The Role of Law Enforcement in Extraterritorial Jurisdiction: Law and Policy Considerations for the Future, 5 EMORY INTERNATIONAL LAW REVIEW 103 (1991). Nathan & Juster, Law Enforcement Against International Terrorists: Use of the RICO Statute, 60 UNIVERSITY OF COLORADO LAW REVIEW 553 (1989) Paust, Non-Extraterritoriality of “Special Territorial Jurisdiction” of the United States: Forgotten History and the Errors of Erdos, 24 YALE JOURNAL OF INTERNATIONAL LAW 305 (1999) Petersen, The Extraterritorial Effect of Federal Criminal Statutes: Offenses Directed at Members of Congress, 6 HASTINGS INTERNATIONAL & COMPARATIVE LAW REVIEW 773 (1983) Podgor, Globalization and the Federal Prosecution of White Collar Crime, 34 AMERICAN CRIMINAL LAW REVIEW 325 (1997) , International Computer Fraud: A Paradigm for Limiting National Jurisdiction, 35 UNIVERSITY 267 (2002) OF CALIFORNIA DAVIS LAW REVIEW Randall, Universal Jurisdiction Under International Law, 66 TEXAS LAW REVIEW 785 (1988) Rubin, Revising the Law of "Piracy", 21 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 129 (1990) Smith, In re Forfeiture Proceedings and Extraterritorial Jurisdiction, 45 INTERNATIONAL & COMPARATIVE LAW QUARTERLY 902 (1996) Snow, The Investigation and Prosecution of White Collar Crime: International Challenges and the Legal Tools Available to Address Them, 11 WILLIAM & MARY BILL OF RIGHTS JOURNAL 20-9 (2002) CRS-73 Stephan, Constitutional Limits on the Struggle Against International Terrorism: Revisiting the Rights of Overseas Aliens, 19 CONNECTICUT LAW REVIEW 831 (1987) Tuerkheimer, Globalization of United States Law Enforcement: Does the Constitution Come Along? 39 HOUSTON LAW REVIEW 307 (2002) Turley, When in Rome: Multinational Misconduct and the Presumption Against Extraterritoriality, 84 NORTHWESTERN UNIVERSITY LAW REVIEW 598 (1990) United States Congress, Legislative Initiatives to Curb Domestic and International Terrorism; Hearings Before the Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary, 98th Cong., 2d Sess. (1984) , Bills to Authorize Prosecution of Terrorists and Others Who Attack United States Government Employees and Citizens Abroad: Hearing Before the Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. (1985) , Extraterritorial Jurisdiction Over Terrorists Acts Abroad: Hearings Before Subcomm. on Crime of House Comm. on Judiciary, 101st Cong., 1st Sess. (1989) Watson, Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction, 17 YALE JOURNAL OF INTERNATIONAL LAW 41 (1992) , The Passive Personality Principle, 28 TEXAS INTERNATIONAL LAW JOURNAL 1 (1993) Weisburd, Due Process Limits on Federal Extraterritorial Legislation? 35 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 379 (1997) Yost & Anderson, The Military Extraterritorial Jurisdiction Act of 2000: Closing the Gap, 33 CONNECTICUT LAW REVIEW 446 (2001) Zabel, Extraterritoriality, 26 HARVARD INTERNATIONAL LAW JOURNAL 569 (1985) NOTES AND COMMENTS The Anti-Terrorism Act of 1987: Sabotaging the United Nations and Holding the Constitution Hostage, 65 NEW YORK UNIVERSITY LAW REVIEW 364 (1990) The Application of RICO to International Terrorism, 58 FORDHAM LAW REVIEW 1071 (1990) Authority of the United States to Extraterritorially Apprehend and Lawfully Prosecute International Drug Traffickers and Other Fugitives, 21 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 215 (1990/1991) Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interests, and Transnational Norms, 103 HARVARD LAW REVIEW 1273 (1990) Defining and Punishing Abroad: Constitutional Limits on the Extraterritorial Reach of the Offenses Clause, 48 DUKE LAW JOURNAL 1305 (1999) Due Process and True Conflicts: The Constitutional Limits on Extraterritorial Federal Legislation and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996), 46 CATHOLIC UNIVERSITY LAW REVIEW 907 (1997) Exercising Extraterritorial Jurisdiction Over Terrorists: 18 U.S.C.§7 and 18 U.S.C.§2331, 10 CRIMINAL JUSTICE JOURNAL 307 (1988) Extradition: A Fair and Effective Weapon in the War on Terrorism, 51 OHIO STATE LAW JOURNAL 1447 (1990) CRS-74 Extraterritorial Jurisdiction Over Acts of Terrorism Committed Abroad: Omnibus Diplomatic Security and Antiterrorism Act of 1986, 72 CORNELL LAW REVIEW 599 (1987) Extraterritorial Jurisdiction Under International Law: The Yunis Decision as a Model for the Prosecution of Terrorists in United States Courts, 22 LAW & POLICY IN INTERNATIONAL BUSINESS 409 (1991) The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption Against Extraterritoriality, 33 HASTINGS INTERNATIONAL & COMPARATIVE LAW REVIEW 177 (1997) The Fourth Amendment and Remote Searches: Balancing the Protection of “The People” With the Remote Investigation of Internet Crimes, 19 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY 355 (2005) From a Pakistani Station House to the Federal Court House: A Confession’s Uncertain Journey in the U.S.-Led War on Terror, 12 CARDOZO JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 297 (2004) Interpreting 18 U.S.C.§2331 Under United States and International Law, 27 HARVARD JOURNAL ON LEGISLATION 579 (1990) Jurisdictional Gap in Reality or Only in Law Reviews? The Circuit Split on the Extraterritorial Application of 18 U.S.C.7(3), 105 DICKINSON LAW REVIEW 419 (2001) Marijuana on the High Seas Act: Extending United States Jurisdiction Beyond International Limits, 8 YALE JOURNAL OF WORLD PUBLIC ORDER 359 (1982) The Omnibus Diplomatic Security and Antiterrorism Act of 1986: Prescribing and Enforcing United States Law Against Terrorist Violence Overseas, 37 UCLA LAW REVIEW 949 (1990) Piercing the Secret Bank Account for Criminal Prosecutions: An Evaluation of United States' Extraterritorial Discovery Techniques and the Mutual Assistance Treaty, 7 ARIZONA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 325 (1990) Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction, 98 HARVARD LAW REVIEW 1310 (1985) Protecting National Interests: The Legal Status of Extraterritorial Law Enforcement by the Military, 41 DUKE LAW JOURNAL 867 (1992) The Protective Principle of Extraterritorial Jurisdiction: A Brief History and an Application of the Principle to Espionage as an Illustration of Current United States Practice, 6 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 337 (1988) To Apply or Not to Apply: Extraterritorial Application of Federal RICO Laws, 33 FLORIDA JOURNAL OF INTERNATIONAL LAW 131 (1993) United States v. Jura: Fifth Amendment Due Process and Stateless Vessels on the High Seas, 73 BOSTON UNIVERSITY LAW REVIEW 477 (1993) United States v. Nippon Paper Industries Co.: Extending the Criminal Provisions of the Sherman Act to Foreign Conduct Producing a Substantial Intended Effect in the United States, 33 WAKE FOREST LAW REVIEW 189 (1998) United States v. Yunis: The D.C. Circuit's Dubious Approval of United States Long-arm Jurisdiction Over Extraterritorial Crime, 87 NORTHWESTERN UNIVERSITY LAW REVIEW 697 (1993).