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Extraterritorial Application of United States Criminal Law: An Expression of
Western Concepts of Fairness and Due Process1
Trace L. Rabern, Esq.
The law provides generally that there is a presumption that Congress does not
intend a statute to apply outside of United States territory unless Congress expresses
otherwise. The limited exception to this presumption has become known as the
Bowman rule, which provides that there is no such presumption where the crime
defined in the statute is a crime against the United States, its property or personnel,
or where applying the presumption compromises the statute at hand (meaning,
makes it difficult if not impossible to effect). So only these crimes against the
government, as well those crimes which Congress has clearly and expressly stated
apply extraterritorially, apply outside the territory of the United States.
For examle, one of the laws that expressly applies extraterritorially is 18 U.S.C.
2332b, Acts of Terrorism Transcending National Boundaries. As to jurisdiction 18
U.S.C. 2332b provides:
(e) Extraterritorial jurisdiction. There is extraterritorial
Federal jurisdiction--
1 By Trace L. Rabern, Trace L. Rabern Attorney and Counselor at Law LLC, Santa Fe, New Mexico,and Adjunct Professor of Law, University of New Mexico School of Law. Ms. Rabern can bereached at [email protected].
This paper would not be possible without the brilliant analysis and mentorship of attorneyMarc Lowry, with Rothstein, Donatelli, Dahlsrom, Shoenburg, and Bienvenue,LLP, in Albuquerque,New Mexico.
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(1) over any offense under subsection (a), including any
threat, attempt, or conspiracy to commit such offense; and
(2) over conduct which, under section 3 [18 U.S.C. 3],
renders any person an accessory after the fact to an offense
under subsection (a).
and in addition also specifies:
(g) Definitions. As used in this section--
(1) the term "conduct transcending national boundaries"
means conduct occurring outside of the United States in
addition to the conduct occurring in the United States;
Most criminal statutes do not express the Congressional intent to apply
extraterritorially. As a result, conduct entirely outside the United States and not
involving the officials or property of the United States Government does not
constitute a violation of United States law.
Crime is ordinarily proscribed, tried and punished according to the laws of
the place where it occurs. This is necessary under our ideas of fairness--if I here in
New Mexico were expected to both know and comport with the law of Uganda on a
certain topic, and could be hauled to court and prison in Uganda for violating that
law, that seems unfair. The general and almost universal rule is that the character
of an act as lawful or unlawful must be determined wholly by the law of the country
where the act is done,American Banana Co. v. United Fruit Co., 213 U.S. 347, 356
(1909).
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American criminal law only applies beyond the geographical confines of the
United States under certain limited circumstances. These limited circumstances,
often referred to as the Bowman circumstances, include those laws that make it a
crime to act against the United States Government, its property, or personnel, or
where strictly intra-territorial application would make no sense. See United States v.
Bowman, 260 U.S. 94, 98 (1922).
Conversely, the presumption against extraterritorial application of jurisdiction
applies to crimes against private individuals or their property, like assaults, murder,
burglary, larceny, robbery, arson, embezzlement and frauds of all kinds. United States
v. Gatlin, 216 F.3d 207, 211 (2d Cir. 2000) (quoting United States v. Bowman, 260 U.S.
94, 98 (1922)).
The cases suggest the presumption against extraterritorial reach of a statute
applies with even more force when the accused is not a citizen of the United States,
who would be expected to know the law of the United States and conform to it.
I. Statutes Must Express The Intent to Apply Extraterritorially, Plus There Must
Be A Sufficient Nexus To Make That Application Comport With Both
International Norms, and Due Process
.
Statutes may be given extraterritorial application in very limited circumstances
if the nature of the law permits it and Congress intends it. United States v. Baker, 609
F.2d 134, 136 (5th Cir. 1980). Therefore, the Court must determine legislative
intent regarding the extraterritorial application of any given statute. See Lowenfeld,
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U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AMERICAN
JOURNALOF INTERNATIONALLAW880, 891-92 (1989) (asserting that the creation of
subject matter and personal jurisdiction over an alien defendant for an offense
committed overseas and not otherwise connected to the United States by forcibly
bringing him into the United States is not clearly within any constitution grant of
power to Congress, and in particular, . . . does not, as written, come within the
power to define and punish offenses against the law of nations).
The courts of no country will execute the penal laws of another. The
Antelope, 23 U.S. 30, 53-4 (10 Wheat. 66, 123) (1825). It is a long-standing
principle of American law that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of the United
States. Small v. United States, 544 U.S. 385, 388-89 (2005); Smith v. United States,
507 U.S. 197, 203 (1993); EEOC v. Arabian American Oil Co., 499 U.S. 244, 248
(1991);Argentine Republic v. Ameranda Hess Shipping, 488 U.S. 428, 440 (1989); Sale v.
Haitian Centers Council, Inc., 509 U.S. 155, 173 (1993); United States v. DeLeon, 270 F.
3d 90, 93 (1st Cir. 2001).
Statutes that do not state otherwise are presumed not to apply outside of the
United States. This canon of construction is a valid approach whereby unexpressed
congressional intent may be ascertained. It serves to protect against unintended
clashes between our laws and those of other nations which could result in
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international discord.Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168, 173 (3rd Cir.
2004) (citations omitted).
And moreover, it is even harder to overcome the presumption against
extraterritorial reach when the suspect in not a United States citizen: Although
there is no general bar against the extraterritorial application of our criminal laws to
American citizens, the Supreme Court has long recognized a presumption against such
applications. United States v. Kim, 246 F.3d 186, 188-189 (2d Cir. 2001) (citing Sale
v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993)); c f. Nieman v. Dryclean U.S.A.
Franchise Co., Inc., 178 F.3d 1126, 1129 (11th Cir. 1999) (It is undisputed that
Congress has the power to regulate the extraterritorial acts of U.S. citizens.).
A. Statutes Forbidding Crimes Against Private Individuals And Their
Property Are Presumed To Apply Only Domestically.
American criminal law only applies beyond the geographical confines of the
United States under certain limited circumstances referred to as the Bowman
circumstances, which make it highly unlikely that any United States law aimed at
protecting individuals, corporations, or their property would apply outside the
United State to a non-United States citizen. In Bowman the United States Supreme
Court explained the issues involved with a statute silent as to its extraterritorial
application:
The necessary locus, when not specially defined,
depends upon the purpose of Congress as evinced by the
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description and nature of the crime and upon the
territorial limitations upon the power and jurisdiction of a
government to punish crime under the law of nations.
Crimes against private individuals or their property, like
assaults, murder, burglary, larceny, robbery, arson,embezzlement, and frauds of all kinds, which affect the
peace and good order of the communitymust, of course, be
committed within the territorial jurisdiction of the government
where it may properly exercise it. If punishment of them is to
be extended to include those committed out side {sic} of
the strict territorial jurisdiction, it is natural for Congress
to say so in the statute, and failure to do so will negative
the purpose of Congress in this regard.
But the same rule of interpretation should not be
applied to criminal statutes which are, as a class, not
logically dependent on their locality for the government's
jurisdiction, but are enacted because of the right of the
government to defend itself against obstruction, or fraud
wherever perpetrated, especially if committed by its own
citizens, officers, or agents. Some such offenses can only
be committed within the territorial jurisdiction of the
government because of the local acts required to constitute
them. Others are such that to limit their locus to the
strictly territorial jurisdiction would be greatly to curtail
the scope and usefulness of the statute and leave open a
large immunity for frauds as easily committed by citizens
on the high seas and in foreign countries as at home. In
such cases, Congress has not thought it necessary to make
specific provision in the law that the locus shall include
the high seas and foreign countries, but allows it to be
inferred from the nature of the offense.
United States v. Bowman, 260 U.S. at 97-98.
There is an exception for laws and statutes that must necessarily have
international reach to achieve their aims. Generally, Congress is presumed to
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intend extraterritorial application of criminal statutes where the nature of the crime
does not depend on the locality of the defendants acts and where restricting the
statute to United States territory would severely diminish the statute's effectiveness.
United States v. Cohen, 427 F.3d 164, 168-169 (2d Cir. 2005) (quoting Yousef, 327 F.3d
at 87). For example, 18 U.S.C. 844(f)(1), which criminalizes damage to United
States property, has been held to apply extraterritorially. United States v. Bin Laden, 92
F. Supp. 2d 189, 196 (S.D.N.Y. 2000). Similarly, 18 U.S.C. 1959, which prohibits
violent crimes in aid of racketeering activity, applied to the murder of suspected
Drug Enforcement Agency (DEA) agents abroad, because drug trafficking by its
nature involves foreign countries and because DEA agents often work overseas, the
murder of a DEA agent in retaliation for drug enforcement activities is a crime
against the United States regardless of where it occurs. United States v. Vasquez-
Velasco, 15 F.3d 833 (9th Cir. 1994). Note that in each of these cases, the law at
issue is aimed at protecting United States property and personnel, not private folks
or property.
Conversely, the presumption against extraterritorial application of jurisdiction
applies to crimes against private individuals or their property, like assaults, murder,
burglary, larceny, robbery, arson, embezzlement and frauds of all kinds. United States
v. Gatlin, 216 F.3d 207, 211 (2nd Cir. 2000) (quoting United States v. Bowman, 260
U.S. at 98 (1922)). Crimes against private property are typically left to the other
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nation-state to handle--if you are robbed in London on a tour, local London police
would handle the matter under local law.
To illustrate, Bin Laden held that Subsection 844(f)(1) applies extraterritorially
because it defines a crime against United States Government property, and the
protection of government property would be frustrated by restricting the statute to
domestic conduct, and the statute falls under the Bowman exception. Subsection
844(f)(1) provides:
Whoever maliciously damages or destroys, or attempts
to damage or destroy, by means of fire or an explosive, any
building, vehicle, or other personal or real property in
whole or in part owned or possessed by, or leased to, the
United States, or any department or agency thereof, shall
be imprisoned for not less than 5 years and not more than
20 years, fined under this title, or both.
18 U.S.C. 844(f)(1). The Bin Laden court went on to hold that Subsection 844(F)
(3), (h), and (n) all depend on the underlying crime in Subsection 844(f)(1) for their
extraterritorial or domestic jurisdiction, so that these sub-sections also applied
outside the United States in that case. The statute 18 U.S.C. 844(i), in contrast, is
completely devoid of any protection of government propertyin fact, the statute by
its terms addresses private, commercial property to the exclusion of government
property. This statute does not likely apply extraterritorially.
B. As A Matter of Due Process, The Presumption Against
Extraterritorial Enforcement of Laws Is Stronger When The Accused
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Is Not A United States Citizen.
The presumption against extraterritorial reach of a statute applies with even
more force when the accused is not a citizen of the United States, who would not
normally be expected to know the law of the United States and conform to it. This
is a function of the basic due process guarantees of notice and the opportunity to be
heard. It is also a function of fundamental fairness that we have come to expect in
modern western justice systems.
Due process demands some nexus between the United States and the
circumstances of the offense. United States v. Medjuck, 156 F.3d 916, 918 (9th Cir.
1998)(to satisfy the strictures of due process, the Government [must] demonstrate
that there exists a sufficient nexus between the conduct condemned and the United
States such that the application of the statute [to the overseas conduct of an alien
defendant] would not be arbitrary or fundamentally unfair to the defendant); see
also United States v. Klimavicius-Viloria, 144 F.3d 1249, 1256 (9th Cir. 1998); United
States v. Greer, 956 F.Supp. 531, 534-36 (D. Vt. 1997); United States v. Aikens, 946 F.2d
608, 613-14 (9th Cir. 1990); United States v. Robinson, 843 F.2d 1, 5-6 (1st Cir. 1988);
United States v. Peterson, 812 F.2d 486, 493 (9th Cir. 1987); United States v. Gonzalez,
776 F.2d 931, 938-41 (11th Cir. 1985).
Second, the due process ideal requires notice. Citizens, for instance, might be
expected to know the laws of their own nation; seafarers to know the law of the sea
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and consequently the laws of the nation under which they sail; everyone should be
aware of the laws of the land in which they find themselves, and of the wrongs
condemned by the laws of all nations.
On the other hand, the application of American criminal statute to an alien
in a foreign country would tend to result in a lack of notice sufficient to raise due
process concerns. See generally Lambert v. California, 355 U.S. 225, 228-30(1957); see
alsoUnited States v. Bin Laden, 92 F.Supp.2d 189, 218 (S.D.N.Y. 2000) (discussing
notice component of due process, and reasoning that the defendant was deemed to
be on notice that something as cruel as mass murder was against the law of every
civilized country).
C. Congress Expressly And Clearly Includes Extraterritorial Jurisdiction
In Statutes When It Wants To.
This extraterritorial presumption principle can be overcome when Congress
clearly expresses its intent to do so. United States v. Yousef, 327 F.3d 56, 86 (2d Cir.
2003) (citing cases). As an example, the crime charged in Count I applies
extraterritorially. That statute, Section 18 U.S.C. 2332b, illustrates what Congress
writes when it intends a statute to apply outside of the boundaries of the United
States to non-citizens. As to jurisdiction 18 U.S.C. 2332b provides:
(e) Extraterritorial jurisdiction. There is extraterritorial
Federal jurisdiction--
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(1) over any offense under subsection (a), including any
threat, attempt, or conspiracy to commit such offense; and
(2) over conduct which, under section 3 [18 U.S.C 3],
renders any person an accessory after the fact to an offense
under subsection (a).
And, in addition it also specifies:
(g) Definitions. As used in this section--
(1) the term "conduct transcending national boundaries"
means conduct occurring outside of the United States in
addition to the conduct occurring in the United States;
18 U.S.C. 2332b (1999) (emphasis added).
Conversely, neither 18 U.S.C. 844(i) nor 18 U.S.C. 1366(a) contain any
language comparable to this. Section 1366, in fact, appears to be written in
contemplation of domestic application, only:
1366. Destruction of an energy facility
(a) Whoever knowingly and willfully damages or attempts
or conspires to damage the property of an energy facility in
an amount that in fact exceeds or would if the attempted
offense had been completed, or if the object of the
conspiracy had been achieved, have exceeded $ 100,000,
or damages or attempts or conspires to damage the
property of an energy facility in any amount and causes or
attempts or conspires to cause a significant interruption or
impairment of a function of an energy facility, shall bepunishable by a fine under this title or imprisonment for
not more than 20 years, or both.
.
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(c) For purposes of this section, the term "energy facility"
means a facility that is involved in the production, storage,
transmission, or distribution of electricity, fuel, or another
form or source of energy, or research, development, or
demonstration facilities relating thereto, regardless of whether such facility is still under construction or is
otherwise not functioning, except a facility subject to the
jurisdiction, administration, or in the custody of the
Nuclear Regulatory Commission or an interstate gas
pipeline facility as defined in section 60101 of title 49.
18 U.S.C. 1366 (2001). Nothing about the statute suggests that Congress intended
to depart from the standard presumption that the statute applies domestically.
Subsection 18 U.S.C. 844(i) also does not clearly express Congress desire to
regulate out-of-country conduct of non-citizens. It provides:
(i) Whoever maliciously damages or destroys, or attempts
to damage or destroy, by means of fire or an explosive, any
building, vehicle, or other real or personal property used
in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce shall beimprisoned for not less than 5 years and not more than 20
years, fined under this title, or both;.
18 U.S.C. 844(i). The statute refers to private property used in interstate or
foreign commerce, but this is not the same thing as an intent to regulate out-of-
country conduct by non-citizens.
Clearly Congress did not intend to provide a criminal remedy for every
damaged property, everywhere, that has ties to the stream of commerce. [I]t is
appropriate to assume that Congress had domestic concerns in mind. Small v.
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United States, 544 U.S. 385, 389-90 (2005). To read the statute otherwise would
create anomalies. Id. at 391. The Fourth Circuit has held that the interstate/
foreign commerce element of 18 U.S.C. 844(i) implicated power of Congress to
regulate conduct at issue when it occurred in the United States, and not jurisdiction
of court to hear particular case; thus, after judgment of conviction was validly
entered on guilty plea, defendant could not challenge jurisdiction based on interstate
commerce element. United States v Carr, 271 F3d 172 (4th Cir. 2001). Congress
intended to ensure that the crime was a federal crime by including the requirement
of effect on interstate or foreign commerce. There is no indication in the statute
that Congress intended it to reach outside the borders of the United States for non-
citizens.
[Further refuting the idea that interstate commerce reach = extraterritoriality reach
here.]
D. Analysis Of Congressional Intent To Apply Laws Extraterritorially
Requires An Examination Of Whether Imposition Of The Law Will
Violate International Norms.
Part of any analysis of Congressional intent to apply laws extraterritorially
requires an examination of whether imposition of the law will violate international
norms. See United States v. Bin Laden, 92 F. Supp. 2d 189, 196 (S.D.N.Y. 2000)
(stating that courts that find that a given statute applies extraterritorially typically
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pause to note that this finding is consistent with one or more of the five principles
of extraterritorial jurisdiction under international law, and also stating that courts
generally presume when determining whether a statute applies extraterritorially, that
in the absence of an explicit Congressional directive, courts do not give
extraterritorial effect to any statute that violates principles of international
law. (quoting United States v. Vasquez-Velasco, 15 F.3d at 839)). [A]n act of Congress
ought never to be construed to violate the law of nations if any other possible
construction remains, the Second Circuit ruled in United States v. Yousef when
determining whether Congress intended a particular statute to apply
extraterritorially. United States v. Yousef, 327 F.3d at 86 (citing McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963) (quotations omitted)).
Under international law, the primary basis of jurisdiction is the subjective
territorial principle, under which a state has jurisdiction to prescribe law with
respect to ... conduct that, wholly or in substantial part, takes place within its territory.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
402(1)(a) (1987) (emphasis added); see also Christopher L. Blakesley, Extraterritonal
Jurisdiction in M. Cherif Bassiouni (ed.), INTERNATIONALCRIMINALLAW 47-50 (2d
ed. 1999). Under this principle, Mr. Reumayr should have been left to face the
charges over this conduct filed in Canada. Canada was where all of the conduct
took placewhere all of the evidence was located, where all the witnesses, save the
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Albuquerque informant, are apparently located.
The Eleventh Circuit has very recently held that the federal statutes
criminalizing conspiracy to possess with the intent to distribute a substance
containing cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(ii), and 21
U.S.C. 846, do not have extraterritorial application when the only connection that
the conspiracy had to the United States was the fact that about four meetings of the
co-conspirators took place in Miami. United States v. Lopez-Vanegas, 2007 U.S. App.
LEXIS 17792 (filed July 26) (11th Cir. 2007). In Lopez-Vanegas, the gist of the
conspiracy was to bring cocaine product from Columbia to Saudi Arabia and then to
France. The Government argued that the statutes reached the defendants, because
they held four meetings devising and planning the conspiracy while physically
present in Miami. Id. at 9-10 n.6. The Eleventh Circuit held that this minimal
contact with the United States was insufficient to constitute a violation of United
States law. Id. The plan did not involve any possession or distribution of
contraband on United States soil, so that matter was properly left to the other
nations.
International law recognizes five principles of jurisdiction other than the
territorial principle, above, by which a state may reach conduct outside its territory:
(1) the objective territorial principle; (2) the protective principle; (3) the nationality
principle; (4) the passive personality principle; and (5) the universality principle. See
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Blakesley, Extraterritorial Jurisdiction at 50-81.
The objective territoriality principle provides that a state has jurisdiction to
prescribe law with respect to conduct outside its territory that has or is intended to
have substantial effect within its territory. Restatement 402(1)(c). The protective
principle provides that a state has jurisdiction to prescribe law with respect to
certain conduct outside its territory by persons not its nationals that is directed
against the security of the state or against a limited class of other state interests. Id.
402(3) (emphasis added). Both of these principles describe what United States
courts refer to as the Bowman exception to the presumption against extraterritorial
reachwhen the statute at issue targets crimes against the Government or its
property or personnel, or when the purpose of the statute would remain unfulfilled
if there was no reach outside the borders.
The nationality principle provides that a state has jurisdiction to prescribe law
with respect to the activities, interests, status, or relations of its nationals outside as
well as within its territory. Id. 402(2). The passive personality principle provides
that a state may apply lawparticularly criminal lawto an act committed outside its
territory by a person not its national where the victim of the act was its national. Id.
402, cmt. g. The universality principle provides that, [a] state has jurisdiction to
define and prescribe punishment for certain offenses recognized by the community
of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking
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of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, regardless of
the locus of their occurrence. Id. 404 (emphasis added).
[I]n determining whether a statute applies extraterritorially, [courts] presume
that Congress does not intend to violate principles of international law... [and] in the
absence of an explicit Congressional directive, courts do not give extraterritorial
effect to any statute that violates principles of international law. United States v.
Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994) (citing McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963). Hence, courts that find
that a given statute applies extraterritorially typically pause to note that this finding is
consistent with one or more of the five principles of extraterritorial jurisdiction
under international law. See, e.g., United States v. MacAllister, 160 F.3d 1304, 1308
(11th Cir. 1998) (objective territorial principle); Vasquez-Velasco, 15 F.3d at 841
(objective territoriality principle, protective principle, and universality principle);
United States v. Felix-Gutierrez, 940 F.2d 1200, 1205-1206 (9th Cir. 1991) (objective
territoriality principle, protective principle, and passive personality principle);
Benitez, 741 F.2d at 1316 (protective principle and passive personality principle);
Pizzarusso, 388 F.2d at 11 (protective principle). This is another nod to what is
perceived as ideals of fundamental fairness in modern justice systems--the United
States would like foreign courts to consider the principles before they hail a United
States citizen not connected with their country into a foreign criminal court, so we
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extend the same principles.
E. Insufficient Nexus Between the Crime, Defendant and the
United States Would Make Criminal Prosecution A Violation
of the Fifth Amendment Right To Due Process.
The prosecution of this case violates Mr. Reumayrs Fifth Amendment Due
Process Clause rights because there is insufficient nexus between the criminal
conduct alleged and his contacts with the United States. This nexus is required
when a federal statute is applied extraterritorially so that such application would
not be arbitrary or fundamentally unfair. United States v. Davis, 905 F.2d 245, 248-9
(9th Cir. 1990) (citations omitted); see also United States v. Yousef, 327 F.3d 56, 111
(2d Cir. 2003) (adopting Davis due process analysis). Given the lack of a nexus, the
Unites States prosecution of the instant case violates Mr. Reumayrs Fifth
Amendment due process rights because it is arbitrary or fundamentally unfair. See
United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J., concurring)
(I do not mean to imply, and the Court has not decided, that persons in the
position of the respondent have no constitutional protection. The United States is
prosecuting a foreign national in a court established under Article III, and all of the
trial proceedings are governed by the Constitution. All would agree, for instance
that the dictates of the Due Process Clause of the Fifth Amendment protect the
defendant).
Due process at a minimum demands some nexus between the United States
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and the circumstances of the offense. United States v. Medjuck, 156 F.3d 916, 918
(9th Cir. 1998) (to satisfy the strictures of due process, the Government [must]
demonstrate that there exists a sufficient nexus between the conduct condemned
and the United States such that the application of the statute [to the overseas
conduct of an alien defendant] would not be arbitrary or fundamentally unfair to
the defendant), citing, United States v. Davis, 905 F.2d at 248-49; see also, United States
v. Klimavicius-Viloria, 144 F.3d 1249, 1256 (9th Cir. 1998); United States v. Greer, 956
F. Supp. 531, 534-36 (D. Vt. 1997); United States v. Aikens, 946 F.2d 608, 613-14 (9th
Cir. 1990); United States v. Robinson, 843 F.2d 1, 5-6 (1st Cir. 1988); United States v.
Peterson, 812 F.2d 486, 493 (9th Cir. 1987); United States v. Gonzalez, 776 F.2d 931,
938-41 (11th Cir. 1985).
Due process also requires adequate notice--some idea to the defendant that he
or she is expected to comport with United States legal principles in this particular
situation.
The nexus requirement of due process would probably be satisfied in many
cases by United States citizenship. As a citizen of the United States, a defendant is
deemed to know the law of his land, so there is no notice problem, and is subject to
the jurisdiction of United States courts. See U.S. Const. amend. XIV, 1. A
defendant's citizenship alone would be sufficient to satisfy Fifth Amendment due
process concerns surrounding extraterritorial application of most criminal statutes.
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See United States v. Clark, 435 F.3d 1100, 1108 (9th Cir. 2006). The "longstanding
principle that citizenship alone is sufficient to satisfy Due Process concerns still has
force." Id. (discussing Blackmer v. United States, 284 U.S. 421 (1932)). Furthermore,
"'[t]here is no doubt that the United States may exercise jurisdiction over American
nationals living abroad, regardless of where the crime is committed.'" Id. (quoting
United States v. Corey, 232 F.3d 1166, 1179 n.9 (9th Cir. 2000)); see also United States
v. Columba-Colella, 604 F.2d 356, 358 (5th Cir.1979) (a country may supervise and
regulate the acts of its citizens both within and without its territory).
The nexus requirement is not so easily satisfied when the putative defendant
is not a citizen and acted abroad. This would be especially true if the defendant was
not found or apprehended in the United States (where the argument might be made
he consented to being subject to our laws by enjoying them) and she or he was
forcibly brought here over objection.
Cases applying a statute extraterritorially to aliens not in the United States in
general have first found a constellation of United States contacts and implications.
The Ninth Circuit in the infamous case of Vasquez-Velasco, in which defendants
from Mexico were charged with the murder of two United States citizens in Mexico,
is the lead example. The United States victims were mistaken for DEA agents by
their killers, and that is why they were killed. 15 F.3d at 837. Mexican drug cartel
murders of DEA agents would certainly be enforceable in the United States . The
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Ninth Circuit found that 18 U.S.C. 1959, which prohibits violent crimes in aid of
racketeering activity, applied extraterritorially to the murders, which occurred just
over the international border with Mexico, even though the victims were not actually
DEA agents. The murder of men the cartel suspected were Drug Enforcement
Agency (DEA) agents provided sufficient contacts for enforcement of the law
extraterritorially, both because two United States citizens targeted because they were
thought to be working for the United States government enforcing United State law were
murdered, and because the motive for the murder was to strike at the United States
Government, and its efforts at enforcement. United States v. Vasquez-Velasco, 15 F.3d
833 (9th Cir. 1994).
Similarly, in United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991), and
United States v. Lopez-Alvarez, 970 F.2d 583, 586, 596 (9th Cir.), the cases involved the
extraterritorial kidnapping, torture, and murder of a DEA agent and a confidential
DEA informant, where the defendants were charged with being accessories-after-the-
fact, in violation of 18 U.S.C. 3. The courts found extraterritorial jurisdiction to
exist, because the motive (strike the government) and the victims (government
personnel) provided adequate nexus.
These cases represent the stretch of extraterritoriality to its extreme. Absent
an equivalent constellation of connections, however, application of United States
Criminal Law to people not in the United States and not citizens would violate due
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process norms.
If you think that this talk of minimum contacts and nexus is not at all
unlike the legal analysis in civil proceedure for minimum contacts for personal
jurisdiction under the line of cases starting with International Shoe Co. v. Washington,
326 U.S. 310 (1945) requiring certain minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice. International Shoe concerned the minimum contacts a
corporation (or putative civil defendant) had to have with a state (small s state, like
New Mexico) in order to be hailed into its courts to answer. The Supreme Court
ruled an entity can be hailed into court to answer where it is fair, and it is fair where
the entity has had certain minimum contacts with the host state. The Supreme
Court in International Shoe broke down the types of contact that a defendant can
have with a state into "casual" contact and "systematic and continuous" contact. In
cases with only casual contact, the claim must be related to the contact in order for
the state to have jurisdiction. Casual contact is not a basis for bringing unrelated
claims. Systematic and continuous contact allows for both claims related to the
contact and unrelated claims.
The due process analysis for extraterritoriality follows along the same lines,
tempered, however, by concerns of international diplomacy and the fact that a
criminal charge is a much more serious matter than a mere civil damages claim.
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[Analysis of how it would be anomalous for extraterritoriality analysis to permit less
for minimum contacts than required by International Shoe will go here. Still being
developed.]
Conclusion
[Conclusion may tie law of extraterritoriality to specific topical case of Julian
Assange and Wikileaks.]