United States v. Delgado-Garcia, Jose

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 26, 2004 Decided July 23, 2004

No. 03-3060

UNITED STATES OF AMERICA,

APPELLEE

v.

JOSE DELGADO–GARCIA,

APPELLANT

Consolidated with

03-3067, 03-3068

Appeals from the United States District Court

for the District of Columbia

(No. 02cr00293-01)

(No. 02cr00293-02)

(No. 02cr00293-03)

–————

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Tony Axam, Assistant Federal Public Defender, argued

the cause for appellants. With him on the briefs were A. J.

Kramer, Federal Public Defender, and Joseph Virgilio and

Mona Asiner, appointed by the court. Iris E. Bennett,

Assistant Federal Public Defender, entered an appearance.

David B. Goodhand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese

III, and Jeanne M. Hauch, Assistant U.S. Attorneys.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge: Each of the appellants, Jose

Delgado-Garcia, Jose Prado-Morales, and C´sar Bravo-

e

Cene˜ o, pleaded guilty either to conspiring to induce aliens

n

illegally to enter the United States, or to attempting to bring

illegal aliens into the United States in violation of 8 U.S.C.

§ 1324(a). Despite those pleas, they took direct appeals and

now attack their convictions on several grounds. We reject

their claims and affirm the convictions.

I.

In their plea proffers, appellants admitted to conspiring to

transport 191 Ecuadorian nationals in order to facilitate their

illegal entry into the United States. Appellants attempted to

transport the passengers via a 54-foot fishing vessel, the Jos´

e

Alexander II. Delgado-Garcia was the captain and piloted

the ship. Bravo-Cene˜o was the ship’s mechanic. Prado-

n

Morales was a crew member.

The ship’s voyage began May 27, 2002, from a position

some distance off-shore from Santa Elena, Ecuador. The

plan apparently was to transport the Ecuadorians on the ship

to Mexico, and for the Ecuadorians to enter the United States

by land from there. On or about June 6, 2002, a United

3

States Navy helicopter sighted the vessel off the Guatemalan

coast and recognized it as being overcrowded. Upon the

approach of the helicopter, the vessel changed course. The

vessel displayed no running lights, flew no flags, and had at

least 70 passengers visible on the deck. Thereafter, the

U.S.S. Fife, a United States Navy ship carrying a United

States Coast Guard law enforcement detachment (‘‘LEDET’’),

located the vessel, later identified as the Jos´ Alexander II, in

e

international waters, 170 nautical miles south of Guatemala

and Mexico. After monitoring the movements of the vessel,

the LEDET hailed it to begin questioning, but received no

response. The LEDET launched a boat from the U.S.S. Fife,

approached the vessel, and attempted questioning from the

boat. Migrants on board the Jos´ Alexander II responded to

e

questioning that they had inadequate food, water, and fuel;

that they had left Gayaquil, Equador, on May 27, 2002; and

that the master and crew of the ship had left before the

U.S.S. Fife’s approach. After rendering assistance and veri-

fying that one of the passengers could navigate the vessel to

Guatemala, the LEDET advised the migrants to take the

vessel to the port at Quetzal and escorted it there. Thereaf-

ter, LEDET personnel determined, based on interviews with

the passengers and further investigation, that the ship had

been attempting to facilitate the illegal immigration of the

passengers to the United States.

A grand jury charged appellants with conspiracy to encour-

age and induce aliens illegally to enter the United States, in

violation of 8 U.S.C. §§ 1324(a)(1)(A)(v), (a)(1)(A)(iv), and

(a)(1)(B)(I), and attempted bringing of unauthorized aliens to

the United States, in violation of 8 U.S.C. §§ 1324(a)(2) and

(a)(2)(B)(ii). Appellants moved to dismiss the indictment on

several grounds. They contended that the indictment did not

charge an offense under § 1324(a), arguing that the statute

does not apply extraterritorially. Appellants also asserted

that their interdiction violated international law, as the Jos´

e

Alexander II, they claimed, was under the exclusive jurisdic-

tion of Ecuador and the government of Ecuador did not

consent to the U.S. government escorting that vessel to

Ecuador. They argued, additionally, that the Fife’s crew had

4

exceeded the authority granted under 14 U.S.C. § 89(a).

That provision gives the Coast Guard authority, among other

things, to ‘‘make inquiries, examinations, inspections,

searches, seizures, and arrests upon the high seas and waters

over which the United States has jurisdiction, for the preven-

tion, detection, and suppression of violations of laws of the

United States.’’ Appellants claimed that this provision did

not authorize the interdiction of the Jos´ Alexander II be-

e

cause it was in international, not U.S., waters when the Fife

approached it, and because the crew lacked reasonable suspi-

cion to believe that the vessel’s crew was engaged in illegal

activity that would affect the United States. Lastly, appel-

lants argued that prosecuting them under § 1324(a) violated

the Fifth Amendment’s due process clause, as there was no

‘‘nexus’’ between appellants’ conduct and the territory of the

United States.

On January 31, 2003, the district court denied appellants’

motion. Shortly thereafter, in February 2003, Prado-Morales

and Bravo-Cene˜o unconditionally pleaded guilty to the con-

n

spiracy count in the indictment and Delgado-Garcia uncondi-

tionally pleaded guilty to the attempt count. This appeal

followed.

II.

This direct criminal appeal comes to us in a strange pos-

ture. Appellants moved to dismiss the indictment on the

statutory, constitutional, and international-law grounds they

now raise on appeal. Yet they unconditionally pleaded guilty

to the crimes of which they were charged. The first issue we

address, therefore, is whether their unconditional pleas

waived the claims they now assert on appeal. For the

reasons that follow, we hold that these pleas waived all of

appellants’ claims. However, the government does not ad-

vance the argument that the unconditional pleas waived ap-

pellants’ claim that § 1324(a) applies extraterritorially. The

government has thus waived its waiver argument on that

point. Cf. United States v. Johnson, 216 F.3d 1162, 1166

(D.C. Cir. 2000) (discussing the government’s waiving of a

5

defendant’s procedural default). We therefore reach the

merits of appellants’ claim that § 1324(a) does not apply

extraterritorially.

Appellants assert four claims on appeal; these claims are,

more or less, the same arguments that were the basis of their

motion to dismiss the indictment. First, appellants reassert

their claim that the substantive statute which they by their

pleas admitted violating, 8 U.S.C. § 1324(a), does not apply

extraterritorially, and therefore not to them in this case.

Second, appellants argue that the government failed to prove

that they committed a crime with effects in the United States,

and therefore did not prove a ‘‘nexus’’ between appellants’

conduct and the United States, as they claim the Fifth

Amendment’s due process clause requires. Third, appellants

assert that their prosecution violated 14 U.S.C. § 89(a), for

the same reasons they asserted below. Finally, appellants

claim that their apprehension violated customary internation-

al law and a treaty to which the United States is a party.

Appellants waived all of these claims by pleading guilty

unconditionally. Unconditional guilty pleas that are knowing

and intelligent – and there is no claim that appellants’ pleas

were otherwise – waive the pleading defendants’ claims of

error on appeal, even constitutional claims. See, e.g., United

States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000). There are

two recognized exceptions to this rule. The first is the

defendant’s claimed right ‘‘not to be haled into court at all;’’

for example, a claim that the charged offense violates the

double jeopardy clause. Blackledge v. Perry, 417 U.S. 21, 30-

31 (1974); see also Menna v. New York, 423 U.S. 61, 62-63 &

n.2 (1975) (per curiam). This is the so-called ‘‘Black-

ledge/Menna’’ exception. The second is that the court below

lacked subject-matter jurisdiction over the case, as a claim of

lack of subject-matter jurisdiction, ‘‘because it involves a

court’s power to hear a case, can never be forfeited or

waived.’’ United States v. Cotton, 535 U.S. 625, 630 (2002)

(citing Steel Co. v. Citizens for a Better Environment, 523

U.S. 83, 89 (1998)).

6

None of appellants’ claims falls into either of these excep-

tions. As to the subject-matter jurisdiction exception: there

is no question that the district court had subject-matter

jurisdiction over appellants’ case. Appellants’ best argument

to the contrary rests on their claim that the indictment failed

to state an offense, which they claim deprived the district

court of subject-matter jurisdiction over them. The govern-

ment apparently agrees with appellants that this purported

defect in the indictment concerns the district court’s subject-

matter jurisdiction over appellants’ case, rather than the

merits of the case.

We do not agree. Under Article III of the Constitution,

‘‘[t]he judicial power of the United States’’ is ‘‘vested TTT in

such inferior Courts as Congress may from time to time

establish.’’ U.S. Const. art. III, § 2. Congress conferred

original jurisdiction on the district court over appellants’ case

by enacting 18 U.S.C. § 3231. That statute, passed originally

in 1948, see 62 Stat. 826, provides that the ‘‘district courts of

the United States shall have original jurisdiction TTT of all

offenses against the laws of the United States.’’ The ordi-

nary meaning of the term ‘‘jurisdiction’’ at the time that

statute was passed referred to a court’s power to ‘‘declar[e]

and administer[ ] law or justice.’’ 5 The Oxford English

Dictionary 635 (1933); see also Webster’s Third New Interna-

tional Dictionary 1227 (1961). Section 3231 identifies ‘‘of-

fenses against the laws of the United States’’ as the relevant

‘‘law’’ over which the court has ‘‘power’’ (or ‘‘jurisdiction’’).

The power to declare that law includes the power to decide

whether the offense charged is a true offense, for, as Justice

Holmes noted long ago, that power remains whether the

court’s ‘‘decision’’ on the law (in this instance, the court’s

judgment as to the ‘‘offense’’) ‘‘is right or wrong.’’ Lamar v.

United States, 240 U.S. 60, 65 (1916) (noting that ‘‘[t]he

objection that the indictment does not charge a crime against

the United States goes only to the merits of the case’’ rather

than the court’s jurisdiction). The district court’s subject-

matter jurisdiction in this case therefore included the power

7

to decide whether the indictment charged a proper ‘‘offense.’’1

None of the statutory or constitutional provisions appel-

lants cite divested the district court of its original jurisdiction

under § 3231. The substantive statute appellants pleaded

guilty to violating, 8 U.S.C. § 1324(a), does not so much as

mention the court’s ‘‘jurisdiction.’’ The treaty to which appel-

lants point us – The Convention on the High Seas – does

state that ‘‘ships that sail under the flag of one State only TTT

shall be subject to its exclusive jurisdiction on the high seas.’’

Convention On the Law of the Sea, Sept. 30, 1962, art. 6, § 1,

13 U.S.T. 2312. ‘‘Jurisdiction’’ in this sense, however, refers

to the general authority of the U.S. government over the ship

at issue, including the executive branch’s authority, not the

power of the district court in particular over prosecutions

arising out of the executive’s assertion of such authority. The

term ‘‘jurisdiction’’ is also used in this way in 14 U.S.C.

§ 89(a), and in the customary international law doctrines to

which appellants point us. Finally, appellants’ Fifth Amend-

ment claim is irrelevant to the court’s Article III subject-

matter jurisdiction. The Constitution by its terms leaves it

solely to Congress to allocate that power by statute, and

there is no claim in this case that this jurisdictional grant is

somehow independently unconstitutional.

Precedent bolsters our conclusion that the substantive suf-

ficiency of the indictment is a question that goes to the merits

of the case, rather than the district court’s subject-matter

jurisdiction. The Supreme Court’s decision in United States

v. Cotton, 535 U.S. 625 (2002), supports this conclusion.

There, the Court held that the failure of an indictment to

state a sentencing element required to be submitted to the

jury and proven beyond a reasonable doubt was not a juris-

dictional defect that required automatic reversal of the con-

viction. Id. at 630-31. ‘‘Defects in an indictment do not

deprive a court of its power to adjudicate a case,’’ the Court

explained; the issue of the indictment’s substantive sufficien-

1 We express no view on what remedies would be available to

such a defendant asserting inadequate legal counsel after having

pleaded guilty.

8

cy instead goes to the merits. Id. We also note that at least

two circuits have held that the question of an indictment’s

failure to state an offense is an issue that goes to the merits

of a case, not the district court’s subject-matter jurisdiction.

See United States v. Gonzalez, 311 F.3d 440, 442 (1st Cir.

2002), cert. denied, 124 S. Ct. 47 (2003); United States v.

Brown, 164 F.3d 518, 520-22 (10th Cir. 1998).

Nor do appellants’ claims fall into the second, Black-

ledge/Menna exception. That exception concerns the right of

defendants ‘‘not to be haled into court at all’’ as that phrase

was used in Blackledge v. Perry, 417 U.S. 21 (1974), and

Menna v. New York, 423 U.S. 61 (1975) (per curiam). Perry,

the case in which the Court first applied this exception,

involved a defendant whom the state of North Carolina had

convicted of misdemeanor assault and given a six-month

sentence. After the defendant filed his notice of appeal from

that conviction, the state prosecutor obtained an indictment

against him on a felony assault charge based on the same

conduct that gave rise to the misdemeanor charge. 417 U.S.

at 22-23. Perry pleaded guilty to that charge, but later

claimed that the second charge violated his due-process rights

because the charge penalized him for exercising his statutory

right to appeal. Id. at 25-26. The Supreme Court held that

Perry’s guilty plea did not waive his due-process claim,

because Perry’s constitutional claim of prosecutorial vindic-

tiveness ‘‘went to the very power of the state to bring [Perry]

into court to answer the charge brought against him.’’ Id. at

30. The right, the Court reasoned, was the ‘‘right not to be

haled into court at all upon the felony charge,’’ and therefore

implicated the ‘‘distinctive’’ procedural injury against which a

right ‘‘to prevent a trial from taking place at all’’ protects.

Id. at 30-31. The Court later clarified that the Blackledge

exception applies to double jeopardy claims. Menna, 423

U.S. at 62-63.

The injury associated with appellants’ claims is not compa-

rable to the injury the Supreme Court identified in Black-

ledge and Menna. Appellants’ only constitutional claim is

that their prosecution violates the Fifth Amendment’s due

process clause because ‘‘none of the specific actions attributed

9

to appellants were aimed at causing criminal acts within the

United States.’’ Br. for Appellants at 20. That assertion is a

claim that the due process clause limits the substantive reach

of the conduct elements of 8 U.S.C. § 1324(a), not a claim

that the court lacks the power to bring them to court at all.

Even if the prosecution of appellants violated the Fifth

Amendment for this reason, appellants would still need to

come to ‘‘court to answer the charge brought against’’ them.

Blackledge, 417 U.S. at 30.

In any event, even assuming that appellants’ Fifth Amend-

ment claim concerns the power of the court to force them to

appear, that claim still is waived. The indictments clearly

alleged that appellants intended to smuggle aliens into the

United States, thereby causing effects there. While appel-

lants would have us look beyond the indictment to the under-

lying facts surrounding the interdiction of the Jos´ Alexander

e

II to show the absence of a nexus, there was no arguable

facial constitutional infirmity in the indictment, and the

Blackledge/Menna waiver exception does not apply. See

United States v. Brace, 488 U.S. 563, 575 (1989).

For these reasons, as a matter of pure legal principle,

appellants’ guilty pleas waived all of their claims. That

conclusion is sufficient to dispose of all of appellants’ claims

on appeal, save for their claim that 8 U.S.C. § 1324(a) does

not apply extraterritorially. However, the government’s brief

strangely ‘‘assumes for present purposes’’ that appellants

have not waived their claim as to the extraterritorial applica-

tion of § 1324(a). The government has therefore waived its

waiver argument on that point. See United States v. John-

son, supra.

III.

The government’s concession impels us to decide whether

§ 1324(a) criminalizes appellants’ extraterritorial conduct.

We hold that it does.

Appellants pleaded guilty to two distinct crimes. Prado-

Morales and Bravo-Cene˜o pleaded guilty to conspiracy to

n

encourage and induce aliens illegally to enter the United

10

States. The statute that defines that crime prohibits conspir-

ing to

encourage[ ] or induce[ ] an alien to come to, enter, or

reside in the United States, knowing or in reckless

disregard of the fact that such coming to, entry, or

residence is or will be in violation of law.

8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(A)(v)(I). The second

crime, to which Delgado-Garcia pleaded guilty, is the attempt-

ed bringing of unauthorized aliens to the United States. The

statute that defines that crime provides:

Any person who, knowing or in reckless disregard of the

fact that an alien has not received prior official authoriza-

tion to come to, enter, or reside in the United States,

brings to or attempts to bring to the United States in

any manner whatsoever, such alien, regardless of any

official action which may later be taken with respect to

such alien, for each alien in respect to whom a violation

of this paragraph occurs

commits a federal crime. Id. § 1324(a)(2).

Both of these statutes apply extraterritorially. Appellants’

argument that they do not invokes the presumption against

reading statutes to have extraterritorial effect. See, e.g., Sale

v. Haitian Centers Council, Inc., 509 U.S. 155, 173 (1993);

EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 250-51 (1991).

This presumption, properly understood, does not mean that

§ 1324(a) criminalizes only domestic conduct. The presump-

tion against extraterritorial application of domestic statutes

‘‘is based on the assumption that Congress is primarily con-

cerned with domestic conditions.’’ Foley Bros. v. Filardo,

336 U.S. 281, 285 (1949); see also Smith v. United States, 507

U.S. 197, 206-07 n.5 (1993). This presumption embodies

sensible contextual linguistic reasons for reading the plain

texts of domestic statutes not to apply everywhere in the

world. Because Congress’s primary arena of sovereignty is

the territorial United States, it makes sense to presume,

absent other evidence, that its commands linguistically apply

only there. Therefore, we presumptively read the text of

11

congressional statutes not to apply extraterritorially, unless

there are contextual reasons for reading the text otherwise.

As the dissent points out, the presumption, and indeed the

underlying proposition that Congress legislates primarily

with domestic conditions in mind, in part makes sense be-

cause we assume that Congress desires to avoid conflict with

other nations. That helps explain why we presume statutes

not to apply extraterritorially, unless there are contextual

reasons for reading the text otherwise. Contextual reasons,

in our view, supply the ‘‘affirmative evidence’’ the Supreme

Court requires to overcome the presumption.

The dissent suggests that our discussion of this presump-

tion conflicts with dictum in Kollias v. D & G Marine

Maintenance, 29 F.3d 67 (2d Cir. 1994). Dissent at 3. In

fact, we agree with the Second Circuit’s statement (which was

not essential to its holding, as the court held that the statute

in question did in fact apply extraterritorially, id. at 73-75)

that ‘‘all statutes, without exception, [should] be construed to

apply within the United States only, unless a contrary intent

appears,’’ id. at 71. Our point is that contextual factors show

that Congress had a contrary intent in this case.

The presumption embodies a sensible caution against read-

ing statutes lightly to apply outside U.S. borders. Like any

linguistic convention, it depends on contingent real-world

assumptions. The point of the policy concerns ‘‘behind’’ the

presumption against applying statutes to have extraterritorial

effect is that they mean that a court should ordinarily under-

stand Congress’s commands to apply only within U.S. bor-

ders, not that a court should itself apply those policy concerns

to the case at bar and read the statute based on the result of

its own policy analysis. Because, as the dissent correctly

states, ‘‘[d]ecisions about when to subject foreign nationals

and foreign conduct to the United States’ laws invoke delicate

questions of jurisdiction and international relations’’ and be-

cause ‘‘courts TTT lack the foreign policy expertise of the

legislative and executive branches,’’ dissent at 2, we must

apply the canons of construction to interpret, not rewrite,

congressional acts. However, in examining the statute for

12

congressional intention of extraterritorial application, we con-

sider both contextual and textual evidence. That is what our

analysis below represents.

Read in context, § 1324(a) applies extraterritorially. On its

face, it concerns much more than merely ‘‘domestic condi-

tions.’’ It protects the borders of the United States against

illegal immigration. As the terrorist attacks of September

11, 2001 reminded us starkly, this country’s border-control

policies are of crucial importance to the national security and

foreign policy of the United States, regardless whether it

would be possible, in an abstract sense, to protect our borders

using only domestic measures. This contextual feature of

§ 1324(a) establishes that it is fundamentally international,

not simply domestic, in focus and effect. The presumption

that Congress’s commands do not reach those outside the

borders of the United States is overcome by affirmative

contextual evidence of congressional intent. It is natural to

expect that a statute that protects the borders of the United

States, unlike ordinary domestic statutes, would reach those

outside the borders. It makes no sense to presume that such

a statute applies only domestically. We agree with the

dissent that whether a statute should apply extraterritorially

is a judgment for Congress, dissent at 11; our point is that

this contextual feature shows that this is the judgment Con-

gress made in § 1324(a).

But more than simply the fact that this statute is interna-

tional in focus shows that it applies extraterritorially. There

is also specific textual evidence that, as the Supreme Court

observed in United States v. Bowman, ‘‘the natural inference

from the character of the offense[s]’’ is that an extraterritori-

al location ‘‘would be a probable place for [their] commission.’’

260 U.S. 94, 99 (1922). That evidence strengthens our conclu-

sion that, read in context, these crimes apply to extraterritori-

al conduct.

The Supreme Court’s decision in Bowman supports the

validity of this inference. Bowman was a case in which the

Supreme Court concluded that the crime of defrauding a

corporation in which the United States was a stockholder

13

applied to U.S. citizens abroad. Id. at 102-03. Bowman, we

acknowledge, is not directly on point. Bowman involved

criminal defendants who were U.S. citizens and the offense

was fraud against the United States, id. at 102-03; this case,

in contrast, involves aliens and immigration offenses. These

differences, however, do not lessen Bowman’s force as ap-

plied to this case. The first difference, the citizenship of the

defendants, is irrelevant. While Bowman did qualify its

holding by noting that no aliens were before the Court,

Bowman’s logic did not depend on this fact. The Bowman

Court’s reasoning was much more pointed than that. The

Court noted that the fraud statute under which the prosecu-

tion in Bowman was proceeding was amended in 1918 to

extend its protection, theretofore limited to government de-

partments, to ‘‘any corporation in which the United States of

America is a stockholder.’’ From the timing of the amend-

ment, the Court reasoned that Congress intended to protect

the Emergency Fleet Corporation. Id. at 101-02. The Court

therefore concluded that the statute criminalizing defrauding

a U.S. corporation applied extraterritorially because the

Emergency Fleet Corporation, a U.S. corporation, ‘‘was ex-

pected to engage in, and did engage in, a most extensive

ocean transportation business.’’ Id. at 101. Because of this

expectation, the Court reasoned, many persons who commit

the crime of defrauding a U.S. corporation would do so

overseas, and therefore the statute had extraterritorial appli-

cation. Bowman is therefore analogous because, as discussed

more fully below, the same expectation holds of § 1324(a).

For these reasons, we disagree with the dissent that the fact

that Bowman involved a U.S. citizen lessens its force as

applied to this case. Dissent at 5.

The second main difference between this case and Bow-

man – that this case involves immigration offenses rather

than frauds against the United States – shows that Bowman

applies with even greater force to § 1324(a). Fraud against

the United States does not necessarily concern the national

security and foreign affairs of the United States, unlike

§ 1324(a). Moreover, there is no obvious reason why frauds

against the United States, simpliciter, would occur overseas,

14

apart from the expectation that the Emergency Fleet Corpo-

ration would engage in extensive overseas operations. How-

ever, there is every reason to think that much of the conduct

that § 1324(a) criminalizes occurs beyond the borders of the

United States. In reaching its conclusion that the fraud

statute before it in Bowman applied extraterritorially, the

Supreme Court recited several other statutes, not expressly

territorial, but which might by the very nature of the crime

outlawed be supposed to apply extraterritorially. Among

these, Chief Justice Taft, for the Court, noted the punishment

of a consul who knowingly certified a false invoice, the forging

or altering of a ship’s papers, the enticing of desertions from

naval service, and the bribing of a United States officer in

civil, military, or naval service. As to all of these, the Court

noted that Congress ‘‘clearly’’ intended the locus of the crime

to be in foreign countries, on the high seas, or otherwise

extraterritorial. 260 U.S. at 99. In short, Bowman is a most

persuasive precedent for a conclusion that § 1324(a) applies

extraterritorially.

The dissent’s attempt to distinguish Bowman in other

respects is unpersuasive. The dissent opines that Bowman is

distinguishable because unlike this case, Bowman and other

internationally focused statutes concern crimes that would

‘‘harm the United States government even if [they were]

completed abroad,’’ dissent at 6, and because in this case, the

harm is ‘‘less direct and less immediate.’’ Id. Such policy

reasoning is for Congress, not this Court, in the first instance.

Anyway, it is difficult to see how the harm threatened by

attempted illegal immigration is any less ‘‘direct and immedi-

ate’’ than, say, the crime of conspiring to commit a terrorist

act against an American target. The border-control statutes

at issue here are ‘‘not logically dependant on their locality’’ in

the same sense that the fraud offense against the United

States was not in Bowman: they have many obvious extrater-

ritorial applications.

Like the statute at issue in Bowman, § 1324(a), by its

terms, applies to much extraterritorial conduct. Subsections

(a)(1)(A) and (a)(2) of that provision both proscribe ‘‘attempts

to bring’’ aliens ‘‘to the United States.’’ Many incomplete

15

attempts occur outside the territorial jurisdiction of the Unit-

ed States. ‘‘Bringing’’ someone suggests entry – or at least

physical proximity. Because an alien will not be in the

United States if the attempt is incomplete, the offender will

ordinarily also be outside the United States during the at-

tempt. This is true even if the government foils many

incomplete attempts at the borders of the United States.

That many attempts to bring someone into the United States

will occur outside the United States is strongly suggestive

that these subsections and their neighbors apply, as a matter

of ordinary language, to extraterritorial acts. For this rea-

son, we disagree with the dissent that the text of § 1324(a) is

equally amenable to a purely domestic reading in light of

Bowman.

Appellants’ response to this argument is not persuasive.

Appellants’ counsel at oral argument argued that any sub-

stantive offense may be joined with an attempt statute;

therefore, they claim, this reasoning would eviscerate the

presumption against extraterritorial application of statutes,

since any substantive statute could have extraterritorial appli-

cation simply by being joined with an attempt statute. In

fact, our holding will create no such sweeping precedent.

The attempt provisions of § 1324(a) have extraterritorial

application not because they are attempt crimes, but rather

because offenders will often be outside the United States

when they attempt to commit the crime. This feature of

§ 1324(a) does not result not from the fact that it punishes

attempts. It results from the fact that the crime involves

transporting aliens into the United States.

The forfeiture provision applicable to § 1324(a) bolsters the

inference that § 1324(a) applies extraterritorially. It pro-

vides:

Any conveyance, including any vessel, vehicle, or aircraft,

which has been or is being used in the commission of a

violation of subsection (a) of this section shall be seized

and subject to a forfeiture.

8 U.S.C. § 1324(b)(1). The breadth of this provision strongly

suggests that subsection (a) itself has extraterritorial applica-

16

tion. Vessels, vehicles, and aircraft used in committing viola-

tions of subsection (a) are often used internationally, as

transporting illegal immigrants requires movement from one

country to another. Therefore, § 1324(b)(1) itself has extra-

territorial application. It seems unlikely that Congress would

give the government broad power to seize the conveyances

used to effect illegal immigration in subsection (b)(1) without

simultaneously conferring the power, in subsection (a), to

punish the offenders operating those conveyances internation-

ally. Congress would not, for example, have given the execu-

tive the power to seize ships abroad if it were not also

possible to convict those operating the ships abroad, and it is

a traditional canon of statutory construction to construe relat-

ed statutory provisions in similar fashion. Our reasoning on

this score is, therefore, not ‘‘circular,’’ dissent at 10; our point

is that such a reading would be textually strange in light of

the independent fact that (b)(1), as the dissent does not deny,

applies extraterritorially. Reading § 1324(a) to have extra-

territorial application thus harmonizes these related provi-

sions.

Finally, the prohibition on encouraging or inducing illegal

immigration, § 1324(a)(1)(A)(iv), also has many natural extra-

territorial applications. Certainly it is possible to induce a

potential illegal immigrant to come to the United States from

within the United States, as appellants and the dissent em-

phasize, but it is obviously much easier to do so when in

proximity to the immigrant. It is also possible to conspire to

induce illegal immigration into the United States from any-

where in the world; but, again, it is easier to do so outside

the United States, in proximity to those who carry out the

plot. This provision therefore by its terms contemplates

application to much extraterritorial conduct.

Nothing in Sale and Arabian Oil Co. compels the conclu-

sion that § 1324(a) applies only domestically. Those deci-

sions involved very different statutes. Although Sale also

involved an immigration statute, that statute was crucially

different from § 1324(a). The statute in Sale, 8 U.S.C.

§ 1253(h), governed deportation proceedings. The Court,

quite apart from the presumption against extraterritorial

17

application, read this provision, by its terms, to apply only to

domestic deportation proceedings and ‘‘contemplated that

such proceedings would be held in the country,’’ as the statute

referred specifically to the Attorney General, a domestic

official, and the Attorney General was not authorized to

conduct deportation proceedings outside of the country. 509

U.S. at 173. In contrast, § 1324(a) is not fundamentally

domestic in focus, but has a great many international applica-

tions.2

Similarly, the statute in Arabian Oil Co. involved ‘‘boiler-

plate’’ language ‘‘which can be found in any number of

congressional Acts, none of which have ever been held to

apply overseas.’’ 499 U.S. at 250-51. The objective evidence

of extraterritorial application the Court found lacking there,

in contrast, is present in § 1324(a). The language of

§ 1324(a) is distinctive, not boilerplate, and applies to a great

many acts that one customarily would expect to occur over-

seas.

The Supreme Court’s recent decision in F. Hoffman-La

Roche Ltd. v. Empagran S.A., 124 S. Ct. 2359 (2004), dissent

at 2, is not to the contrary. Empagran was an international

price-fixing antitrust suit against several foreign and domestic

vitamin manufacturers and distributors. Id. at 2364. The

Court held that plaintiffs’ suit failed to state a claim under

U.S. antitrust statutes, assuming that plaintiffs’ suit only

2 The Sale Court stated that even if it did not read the act by its

terms to apply only to ‘‘strictly domestic procedures, the presump-

tion that Acts of Congress do not ordinarily apply outside our

borders would support’’ a purely domestic interpretation of the

relevant statute. 509 U.S. at 173. Even if the language of the

statute did not apply solely to ‘‘domestic procedures,’’ however, that

does not change the fact that this language referred specifically to

the Attorney General, a domestic official, and that the Court applied

the presumption to that statute as it was written, not to some

hypothetical statute that omitted those words. Our point is that

these words are very different from the language in the statute at

issue here and therefore that our application of the presumption

compels the conclusion that § 1324(a) applies to extraterritorial

conduct.

18

alleged international anticompetitive effects that were com-

pletely independent from any adverse domestic effects. Id.

at 2366-72. The Court rejected plaintiffs’ argument that the

‘‘more natural reading’’ of the statutes was that they could

state a claim solely based on such effects, because of the

presumption against applying statutes extraterritorially and

because the Court read the statutes to permit, but not

require, either a foreign or domestic reading. Id. at 2366,

2372.

The Supreme Court’s rejection of plaintiffs’ argument is

consistent with our textual analysis of § 1324(a). In Empa-

gran, the Court assumed for purposes of analysis that plain-

tiffs’ suit alleged foreign conduct that lacked any domestic

nexus whatsoever. The Court acknowledged that ‘‘our courts

have long held that application of our antitrust laws to foreign

anticompetitive conduct is nonetheless reasonable, and hence

consistent with the principles of prescriptive comity, insofar

as they reflect a legislative effort to redress domestic anti-

trust injury that foreign anticompetitive conduct has caused.’’

id., at 2366-67 (quoting United States v. Aluminum Co., 148

F.2d 416, 443-44 (2d Cir. 1945) (L. Hand, J.) (citing, among

other cases, United States v. Bowman)), even though no

express language in those laws made such foreign conduct

unlawful. That long-standing recognition that the antitrust

laws apply to such foreign conduct that impinges on domestic

affairs supports our interpretation of the statute before us, as

the offenses before us have such effects.

Nor are we persuaded by appellants’ and the dissent’s

citation to the Maritime Drug Law Enforcement Act, 47

U.S.C. App. §§ 1901-03. This act criminalizes the manufac-

ture, distribution, and possession of controlled substances,

and explicitly applies to extraterritorial acts. Id. § 1903(a),

(h). Appellants argue, and the dissent repeats, that because

this statute is similar to § 1324(a), yet explicitly applies

extraterritorially, we should infer from the absence of the

same explicit statement in § 1324(a) that it does not apply

extraterritorially.

19

We do not find it surprising that Congress chose to use

more explicit language specifying extraterritorial application

in the Maritime Drug Law Enforcement Act than it did in

§ 1324(a). A border-control statute is more outward-looking

than is a prohibition on drug manufacturing. That may well

be why Congress also thought it necessary to specify explicit-

ly in the Enforcement Act that ‘‘trafficking in controlled

substances aboard vessels is a serious international problem.’’

46 U.S.C. App. § 1902. The international focus of § 1324(a),

in contrast, is more obvious. Although appellants are correct

that, where Congress uses different language in otherwise

similar provisions, it is wise to presume that Congress means

different things, § 1324(a) and the Enforcement Act are not

sufficiently otherwise similar to invoke that reasoning.

We recognize that our holding as to the extraterritorial

application of the attempt provisions of § 1324(a) conflicts

with Yenkichi Ito v. United States, 64 F.2d 73, 75 (9th Cir.

1933). The Ninth Circuit rested this holding on its assump-

tion that ‘‘there is nothing in [§ 1324(a)] to indicate that

Congress intended it to be effective outside of the recognized

territorial limits of the United States.’’ Id. As we have

discussed, we disagree.

Our dissenting colleague relies on the legislative history of

§ 1324(a), dissent at 12-13, citing the 1903 congressional act

that added the attempt provision of § 1324(a) and the recodi-

fication of that act in 1917, and arguing that there is nothing

in this history that ‘‘suggest[s] that the 1903 substitution of

the term ‘attempt’ for ‘aid’ was intended to expand the

bringing offense extraterritorially,’’ dissent at 13. Such si-

lence proves little, in light of the fact that, as we have

discussed, the evidence is apparent from the text of § 1324(a).

The same can be said of the silence the dissent cites in the

legislative history of the encouragement/inducement provision

of § 1324(a). Dissent at 13-15.

Second, the dissent points out that the Ninth Circuit hand-

ed down its decision in Yenkichi Ito in 1933, and that Con-

gress has nowhere attempted to correct that understanding in

subsequent amendments to § 1324(a). Dissent at 13-15.

20

This argument fails on two fronts. For one, the Supreme

Court decided United States v. Bowman in 1922, a case that

the Ninth Circuit did not cite, so it is unclear whether

Congress’s silence was the result of its understanding that

the plain textual evidence it had supplied already made the

extraterritorial application of the statute clear under the

reasoning of Bowman. For another, other elderly Court of

Appeals cases, including cases from the Ninth Circuit, have

long held the closely related inducement section of the statute

capable of extraterritorial application. Most glaringly, the

Fifth Circuit held as much in Claramont v. United States, 26

F.2d 797 (5th Cir. 1928) (per curiam), a decision that, like

Yenkichi Ito, was the law of a circuit whose decisions gov-

erned large portions of the U.S. coast. See also United

States v. Nunez, 668 F.2d 10, 12-13 (1st Cir. 1981) (per

curiam) (same, citing Castillo-Felix); United States v. Castil-

lo-Felix, 539 F.2d 9, 12-13 (9th Cir. 1976) (same, citing

Bowman); United States v. Correa-Negron, 462 F.3d 613, 614

(9th Cir. 1972) (per curiam) (same, citing Claramont). There-

fore, the state of the law dating from 1922 on the extraterrito-

rial application of § 1324(a) is, at best, ambiguous, and at

worst, contrary to the dissent’s position in view of Bowman.

Congress’s silence on this point thus does not support the

dissent’s reading of the statute.

Third, the dissent cites a single sentence from a letter from

the Department of Justice commenting on the current version

of the Immigration and Control Act of 1986, then pending

before the House Committee on the Judiciary, which the

Committee appended to a House Report on the bill. The

dissent says that the Department said in this sentence that it

‘‘would not prosecute the attempted bringing offense outside

of the United States.’’ Dissent at 14-15. Citing two Court of

Appeals cases, as we read the letter, the Department opined

that the encouragement/inducement provision of § 1324(a) ‘‘is

the only provision in [that section] that has extra-territorial

application.’’ H.R. Rep. No. 99-682, pt. 1, at 112 (1986).

Putting to one side that this piece of history contradicts the

dissent’s conclusion that the encouragement/inducement sec-

tion does not have extraterritorial application, we think it

21

does not stand for the proposition that the encouragement/in-

ducement provision of § 1324(a) applies only domestically.

The only support the Department offered for its opinion was

a citation to two Court of Appeals cases, both of which held

only that the encouragement/inducement provisions of

§ 1324(a) did not have extraterritorial application. See id.

(citing Nunez, Castillo-Felix, and ‘‘cases cited therein’’).

Those cases and the cases those cases cited, however, said

nothing about whether the attempt provision of § 1324(a) had

extraterritorial application. In light of that silence, we think

that the Department was merely stating its opinion that no

court cases have held the attempt provisions to have extrater-

ritorial application. It was not stating its official interpreta-

tion of § 1324(a). We therefore give this piece of legislative

history little weight.

We close with a concluding observation on the alarming

consequences the dissent sees in our holding. Dissent at 17-

19. The dissent raises the specter that our holding that

§ 1324(a) applies extraterritorially risks creating conflicts

with the laws of other nations, and that we should not do so

given our lack of foreign policy expertise. As we have

discussed, we have confined our analysis to interpreting the

words of Congress in light of the presumption against extra-

territorial application, not foreign policy analysis. But it is

worth pointing out that, in any event, our holding does not

pose a significant risk of creating any such conflict. While we

lack foreign policy expertise, the executive branch, the branch

of government primarily concerned with foreign affairs and

the branch charged with administering § 1324(a), has it in

spades. The practical consequence of our holding is merely

to leave the question of how best to navigate such potential

conflicts to the executive, ‘‘the sole organ of the federal

government in the field of international relations.’’ United

States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320

(1936). The executive’s expert exercise of prosecutorial dis-

cretion and foreign diplomacy should be more than sufficient

to avoid the conflicts the dissent thinks our holding risks

creating.

22

IV.

Although the dissent believes that ‘‘the combination of a

statutory text that permits but does not require extraterrito-

rial application and a silent legislative history is not enough of

a basis for a court to decide to apply’’ a statute extraterritori-

ally, dissent at 16, the same textual evidence used by the

Supreme Court in Bowman and § 1324(a)’s international

focus suggest otherwise. For those two reasons, and others

expressed above, appellants’ convictions are affirmed.

1

RANDOLPH, Circuit Judge, concurring: I join all of the

court’s opinion except its statement that by pleading guilty a

defendant waives any claim that the offense to which he pled

guilty is not a crime. United States v. Idowu, 105 F.3d 728

(D.C. Cir. 1997), suggests a view contrary to the court’s. The

issue was neither briefed nor argued and, for the reasons the

court gives, did not need to be reached.

1

ROGERS, Circuit Judge, dissenting: The court today inter-

prets two provisions in the Immigration and Nationality Act

as criminalizing conduct outside of the United States by

foreign nationals. In doing so, the court ignores clear in-

struction from the Supreme Court that Congress must clearly

state its intention to apply statutes extraterritorially and that

otherwise courts are to interpret ambiguous statutes as terri-

torially limited. Congress has not clearly stated its intent to

apply the attempted bringing and the encouragement/induce-

ment provisions of 8 U.S.C. § 1324 extraterritorially in order

to protect United States borders, and the structure and

operation of the two provisions, in which this court finds an

implicit command of extraterritorial application, are consis-

tent with the territorial limitation that is generally presumed

of statutes. Moreover, the legislative history is clear that

Congress did not intend the attempted bringing provision to

apply outside the territorial jurisdiction of the United States.

Accordingly, because there is no clear ‘‘affirmative evidence,’’

Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 176

(1993), to overcome the presumption against applying a stat-

ute extraterritorially, the indictments under 8 U.S.C.

§§ 1324(a)(1)(A)(i), (a)(1)(A)(iv), and (a)(1)(A)(v) should have

been dismissed, and I therefore respectfully dissent.

I.

The Supreme Court has long upheld a canon of statutory

construction 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 Ameri-

can Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros.,

Inc. v. Filardo, 336 U.S. 281, 285 (1949)). In two recent

cases, Sale, 509 U.S. 155, and Arabian American Oil Co., 499

U.S. at 248–59, the Court has re-emphasized this longstand-

ing presumption in uncompromising terms: laws are deemed

to only apply within the territorial jurisdiction of the United

States unless Congress provides ‘‘affirmative evidence’’ to the

contrary. See Sale, 509 U.S. at 176. Such evidence must be

‘‘clearly expressed.’’ Arabian American Oil Co., 499 U.S. at

248. While the canon in part has roots, as this court notes,

see Opinion at 10–11, in the recognition that Congress ‘‘is

2

primarily concerned with domestic conditions,’’ Arabian

American Oil Co., 499 U.S. at 248, it also reflects ‘‘the desire

to avoid conflict with the laws of other nations.’’ Sale, 509

U.S. at 174. Decisions about when to subject foreign nation-

als and foreign conduct to the United States’ laws involve

delicate questions of jurisdiction and international relations,

and courts, which lack the foreign policy expertise of the

legislative and executive branches, must tread carefully and

err on the side of limiting statutes to domestic application if

there is doubt as to Congress’ intentions. This Term the

Supreme Court re-emphasized in F. Hoffman–La Roche Ltd.

v. Empagran S.A., 124 S. Ct. 2359, 2366 (2004), that it

‘‘ordinarily construes ambiguous statutes to avoid unreason-

able interference with the sovereign authority of other na-

tions.’’ If a statute is unclear and reasonably permits the

reading that it applies only territorially, the court should not

read it to apply abroad, even if doing so might be ‘‘the more

natural reading of the statutory language.’’ Id. at 2372.

Nothing in the Supreme Court’s opinions in Sale and Arabian

American Oil, both of which used broad and generalized

language, or the recent opinion in Empagran, indicates that

the Court was doing anything other than announcing, and

strengthening, a generally applicable rule of statutory con-

struction.

This court, however, now reaches a holding that effectively

eviscerates this instruction. Treating the canon as nothing

more than a ‘‘contextual rule’’ or ‘‘linguistic’’ principle, it

states that the presumption against extraterritoriality can be

overcome so long as there are ‘‘contextual reasons’’ for disre-

garding it. Specifically, this court’s principal argument is

that the canon’s requirement of ‘‘affirmative evidence’’ is

satisfied when a statute concerns ‘‘more than merely ‘domes-

tic conditions.’ ’’ Op. at 12. In other words, if a statute deals

with a subject area that is not purely domestic, the court

reasons, that provides the ‘‘context’’ indicating Congress’

intent to apply the statute extraterritorially. See id. This

cramped view of the canon is circular, making its applicability

depend in the first instance on whether a statute is ‘‘domes-

tic’’ when that is the question that application of the canon is

supposed to resolve. Moreover, the court’s ‘‘contextual rea-

3

sons for reading the text otherwise’’ standard lacks a basis in

the jurisprudence of the Supreme Court, which has stated

that the standard for overcoming the canon against extrater-

ritoriality is the higher hurdle of ‘‘affirmative evidence,’’ Sale,

509 U.S. at 176, and must be ‘‘clearly expressed.’’ Arabian

American Oil Co., 499 U.S. at 248. The court’s premise that

a non-domestic subject itself supplies the ‘‘affirmative evi-

dence’’ sufficient to overcome the canon, see Op. at 11–12, is

in direct conflict with the Second Circuit, which explained in

Kollias v. D & G Marine Maintenance, 29 F.3d 67 (2nd Cir.

1994), in light of the Supreme Court’s recent decisions that

‘‘seem to require that all statutes, without exception, be

construed to apply within the United States only, unless a

contrary intent appears’’ (as it did in the statute at issue,

which applied ‘‘on the high seas,’’ id. at 73–74), that a non-

domestic subject matter does not suffice to render inapplica-

ble the canon against extraterritoriality. Id. at 71 (emphasis

in original). While certain subject areas (such as the Immi-

gration and Nationality Act, at issue in Sale and the instant

case, or maritime law as in Kollias) may imply that Congress

is more than ‘‘primarily concerned with domestic conditions,’’

Arabian American Oil Co., 499 U.S. at 248, they do nothing

to alleviate the prudential concerns embodied in the canon,

which the court today ignores.

The prudential concerns behind the canon are particularly

significant in the criminal context, where the extraterritorial

application of the criminal law of the United States may

criminalize conduct that is legal in the countries in which it is

committed, without providing corresponding constitutional

protections against unreasonable searches and seizures, and

the use of force at the arrest stage. Cf. U.S. v. Verdugo–

Urquidez, 494 U.S. 259 (1990). Exposing foreign nationals to

the full coercive force of the United States’ criminal laws

without many of the corresponding constitutional protections

is a serious step, not only for the individuals charged but also

for their host countries, which have interests both in their

own jurisdiction and in the freedom of their citizens who,

under their laws, have often committed no crime. Such a

serious and consequential step, if it is to be taken at all, must

be taken by Congress, and must be taken by Congress

4

clearly; the decision is not left for courts to intuit on the basis

of statutes that can plausibly be read either way.

Furthermore, the court’s holding that the canon can be

overcome by a statute’s non-domestic focus runs contrary to

Sale, and its attempt to distinguish the case is unconvincing.

See Op. at 16–17. In Sale, the Supreme Court applied the

canon to a provision of the Immigration and Nationality Act

(‘‘INA’’) in order to determine, as here, the applicability of

that Act to aliens interdicted on the high seas. The case

highlights the wide applicability of the canon, as well as how

high the hurdle of ‘‘affirmative evidence’’ is. The provision at

issue in Sale prohibited the ‘‘return’’ of refugees before giving

them an asylum hearing, in part to implement the United

Nations Convention Relating to Status of Refugees, which the

United States has ratified. Implementation of a treaty defin-

ing the United States’ obligations with respect to refugees is

hardly a ‘‘domestic condition,’’ notwithstanding this court’s

valiant attempt to frame it as such. See Op. at 16–17.

Absent the canon against extraterritoriality, the ‘‘natural

inference,’’ Op. at 12, or ‘‘more natural reading,’’ Empagran,

124 S.Ct. at 2372, would be that if the United States is

forbidden by treaty from ‘‘return[ing]’’ refugees to their home

country without a hearing, ‘‘contextual reasons’’ would sug-

gest that the functionally equivalent step of intercepting them

prior to landing and returning them to their home countries

would equally violate the United States’ obligations under the

treaty and thus under the implementing statute. Notwith-

standing this inference, the Supreme Court held that the

relevant provision of the INA was inapplicable because Con-

gress had not affirmatively extended its reach beyond United

States borders. In Sale, the Court expressly stated that its

holding did not depend, as this court suggests, see Op. at 17

n.2, on the fact that the INA referred to deportation proceed-

ings and referenced the Attorney General, a domestic official.

Rather, the Supreme Court stated that ‘‘[e]ven if [the provi-

sion respecting the return of refugees] were not limited to

strictly domestic procedures, the presumption that Acts of

Congress do not ordinarily apply outside our borders would

5

support an interpretation TTT as applying only within United

States territory.’’ 509 U.S. at 173.

Sale should put to rest the court’s contention that the

canon against extraterritoriality is satisfied by legislation

touching upon non-domestic concerns. And as discussed,

prudential factors favoring application of the canon to crimi-

nal provisions of the INA are at least as strong, if not

stronger, than those for applying it to civil provisions.

The court’s reliance on United States v. Bowman, 260 U.S.

94 (1922), to support its theory that a statute’s non-domestic

focus overcomes the presumption against extraterritoriality,

is misplaced. See Op. at 12–15. The Supreme Court in

Bowman dealt with the extraterritorial applicability to United

States citizens of offenses against the United States govern-

ment, noting that the government has a right to defend itself

against such crimes ‘‘especially if committed by its own

citizens, officers, or agents,’’ Bowman, 260 U.S. at 98, whom

the court ruled could be held to answer to the ‘‘crime against

the government to which they owe allegiance.’’ Id. at 102.

Bowman left open whether, as here, such laws should be read

as applying extraterritorially to foreign nationals without

express Congressional authorization, as one of the co-

defendants in Bowman, a British national, was not before the

Court. Id. at 102–03. While this court writes off this

distinction as ‘‘irrelevant,’’ Op. at 13, the distinction substan-

tially weakens the strength of the inference that can be

drawn from ‘‘context.’’ The prudential concerns behind the

canon against extraterritoriality, in light of the Supreme

Court’s subsequent instruction, counsel against expanding the

Bowman rationale to non-citizens. Even were nothing to

prevent Congress from criminalizing acts by foreign nationals

abroad, Bowman is instructive about which inferences are

reasonable to draw, and it is reasonable to infer that Con-

gress is more likely to assert jurisdiction over its own citizens

abroad than over foreign nationals abroad, given the jurisdic-

tional and foreign policy implications of such a step.

The different nature of the offenses at issue further under-

mines the analogy to Bowman. The rationale behind Bow-

6

man was that some crimes, such as defrauding the United

States government, because they directly harm the United

States government in a manner ‘‘not logically dependent on

their locality,’’ 260 U.S. at 98, are such that it is obvious that

in declaring them to be crimes Congress intends to prohibit

them everywhere. While this may be true of a class of

crimes such as terrorism against American targets, see Unit-

ed States v. Yousef, 327 F.3d 56, 86 (2nd Cir. 2003), or the

murder of United States agents abroad, see United States v.

Felix–Gutierrez, 940 F.2d 1200, 1204–05 & n.3 (9th Cir. 1991),

the offenses charged against Garcia and his two co-

defendants under 8 U.S.C. § 1324 are of a different character.

The harm that § 1324 prevents is the unauthorized entry of

aliens into the United States, which is quite ‘‘logically depen-

dent on [its] locality.’’ Bowman, 260 U.S. at 98. Extraterri-

torial predicate acts occurring thousands of miles from the

United States such as those charged here harm the United

States only by a far more attenuated causal chain, by making

it more likely that, at some point in the future, unauthorized

aliens may attempt illegal entry into the United States.

In Bowman and cases like Yousef and Felix–Gutierrez,

courts have departed from the presumption against extrater-

ritoriality only because a crime (such as a terrorist attack or

the murder of a United States agent) would harm the United

States government even if it was completed abroad. Given

the nature of the crime, the courts inferred that Congress

must have intended to protect the United States government

from harm irrespective of its origin. The less direct and the

less immediate the harm to the United States from extraterri-

torial conduct is, the weaker this inference becomes, and the

more likely it is that Congress would consider countervailing

factors to outweigh any interest in extraterritorial application.

Congress might adopt, on a legislative record more complete

than the one now before the court, the court’s conclusion that

extraterritorial application of 8 U.S.C. § 1324 is required to

safeguard United States borders more effectively. See Op. at

12. But the necessity of such an approach calls for a policy

conclusion that is hardly so obvious that the court can attrib-

ute it to Congress solely on the basis of the offenses at issue

7

here, as it can where the harm is direct and immediate. The

extraterritorial conduct of Garcia and his two codefendants

ended in Guatemala over 2,500 miles from the United States

and over 100 miles from Mexico, where the migrants intended

to travel. Under the circumstances, there is not enough to

warrant a departure from the ‘‘longstanding principle of

American law’’ that statutes only apply domestically ‘‘unless a

contrary intent appears.’’ Arabian American Oil Co., 499

U.S. at 248.

II.

The requirement of ‘‘affirmative evidence’’ that the Su-

preme Court set forth in Sale, 509 U.S. at 176, rather than

this court’s looser ‘‘contextual reasons for reading the text

otherwise’’ test, see Op. at 11, compels the conclusion that

neither 8 U.S.C. § 1324(a)(1)(A)(i) nor (a)(1)(A)(iv) applies

extraterritorially, nor, by extension, does the conspiracy of-

fense in (a)(1)(A)(v). While the statute can be read to reach

predicate acts in foreign countries that could eventually lead

to the entry of undocumented aliens into the United States, it

is equally plausible from the text of the statute and the

policies behind it that Congress had a less ambitious enforce-

ment scheme in mind. This latter possibility is confirmed by

the history of the attempt provision in the illegal bringing

offense, 8 U.S.C. § 1324(a)(1)(A)(i), which was meant to do no

more than ensure that persons transporting unauthorized

aliens to the United States would not be absolved from

liability by an immigration official’s refusal, upon arrival, to

let the aliens enter. As to the encouragement/inducement

offense, 8 U.S.C. § 1324(a)(1)(A)(iv), Congress has been silent

as to extraterritoriality, and absent a clear statement from

Congress or any jurisdictional limits, the purpose behind the

canon against extraterritoriality counsels against reading the

statute to have such breadth.

A.

The plain text of § 1324 contains no affirmative statement

that the acts it forbids are also forbidden when they occur in

8

other nations or on the high seas. This absence alone is

meaningful, although not entirely fatal. The presumption

against extraterritoriality, while strong, does not quite have

the force of a clear statement rule; the Supreme Court in

Sale consulted legislative history when the provision of the

INA at issue contained no clear statement of Congress’ desire

to apply it outside the United States. See Sale, 509 U.S. at

174–77. It is instructive, however, that in the context of

preventing the entry of illegal drugs into the United States, a

subject that raises similar policy questions about the extent to

which the United States wishes to protect its borders by

preemptively extending its laws into the high seas or other

countries, Congress has criminalized extraterritorial acts on

the face of the relevant statute. See Maritime Drug Law

Enforcement Act, Pub. L. No. 96–350 (1980) (codified as

amended at 46 U.S.C. app. §§ 1901–04 (2004)) (‘‘Maritime

Drug Act’’). The Maritime Drug Act is an example of what a

statute looks like when Congress intends to apply it extrater-

ritorially: it contains an express provision dictating that it ‘‘is

intended to reach acts TTT committed outside the territorial

jurisdiction of the United States,’’ § 1903(h); it provides for

the jurisdictional limit that it does not apply to foreign

nationals on the vessels of foreign nations that do not consent

to the enforcement of U.S. law, § 1903(a); and it provides

jurisdiction and venue rules for defendants subsequently

brought into the United States to stand trial, § 1903(f). By

contrast, 8 U.S.C. § 1324 contains none of these elements.

The court casts the Maritime Drug Act aside, speculating that

Congress was addressing a less ‘‘outward-looking’’ statute

than a border control statute, see Op. at 18–19, but this

distinction is hardly persuasive. The ‘‘natural inference,’’ cf.

Op. at 12, of a statute specifically aimed at maritime drug

interdiction would presumably be that it applies on the high

seas, yet Congress still thought it necessary to specify that

the statute has extraterritorial application. 49 U.S.C. app.

§ 1903(h).

Nor are the criminal offenses in 8 U.S.C. §§ 1324(a)(1)(A)(i)

and (a)(1)(A)(iv) of such character as to cause a logical

inference that they must take place abroad. The title of

9

§ 1324, ‘‘bringing in and harboring certain aliens,’’ as well as

the substantive offenses in (a)(1)(A)(i) (‘‘bringing’’),

(a)(1)(A)(ii) (‘‘transport[ing] TTT within the United States’’),

and (a)(1)(A)(iii) (‘‘harbor[ing] or shield[ing] from protection’’)

imply the opposite, as one generally cannot ‘‘bring[ ] in,’’

‘‘bring TTT to the United States,’’ ‘‘transport TTT within the

United States,’’ or ‘‘harbor’’ aliens without also being in the

United States oneself. The only substantive offense that it is

possible to commit outside of the United States is the encour-

agement/inducement offense in (a)(1)(A)(iv). Yet it is equally

possible to commit the same acts domestically, such as by

advertising the availability of jobs for undocumented immi-

grants or by telephonically inviting foreign acquaintances

illegally to join the inducer in the United States. While

Congress could have wanted to criminalize both, the text of

(a)(1)(A)(iv) does not dictate such a conclusion.

To overcome this difficulty, the court finds an implicit

command of extraterritorial application in the inchoate of-

fense of attempted bringing in (a)(1)(A)(i) (‘‘attempt[ing] to

bring to the United States’’). The court offers three reasons

for this reading, the first textual, the second intra-textual, the

third rooted in policy; none is persuasive. The textual

argument, which reasons that ‘‘attempts’’ usually occur

abroad because they become completed crimes upon the

aliens’ entry into the United States, see Op. at 14–15, ignores

the fact that attempts that fail at the border or in territorial

waters have entered the territorial jurisdiction of the United

States without completing the substantive crime. Aliens

intercepted at the border or in territorial waters have not, for

many legal purposes, entered the United States. The Su-

preme Court explained in Sale:

Under the INA, both then and now, those seeking ‘‘ad-

mission’’ and trying to avoid ‘‘exclusion’’ were already

within our territory (or at its border), but the law treated

them as though they had never entered the United

States at all; they were within United States territory

but not ‘‘within the United States.’’

10

509 U.S. at 175. While the attempt provision in

§ 1324(a)(1)(A)(i) is open to the court’s reading, it can just as

plausibly refer to instances where an attempt to bring undoc-

umented aliens into the United States fails because the aliens

are intercepted at the border or in territorial waters (if the

attempt involves surreptitious entry), or refused entry by

immigration officials (if the attempt involves fraudulent en-

try). While the record does not contain any statistics about

United States border control efforts, such interdiction at the

border would seem to be the place where many attempts fail

that subsequently become the basis for (a)(1)(A)(i) prosecu-

tions. Because the plain text of (a)(1)(A)(i) is amenable to

either reading, it is not ‘‘affirmative evidence’’ of extraterrito-

rial application.

The court’s second, intra-textual argument finds a com-

mand of extraterritorial application in the forfeiture provi-

sions at 8 U.S.C. § 1324(b)(1), which authorize seizure of ‘‘any

vessel TTT being used in the commission of a violation of

subsection (a).’’ See Op. at 15–16. The court reasons that

(b)(1) applies extraterritorially, and therefore (a) must as

well, for otherwise the two subsections are not in harmony.

See Op. at 16. But that reasoning is circular; by its plain

terms, (b)(1) only applies to a vessel ‘‘being used in the

commission of a violation of subsection (a)’’; in other words,

(b)(1) only applies extraterritorially if (a) does, and vice versa.

Moreover, (b)(1) has a perfectly sensible meaning if

(a)(1)(A)(i) applies only territorially: it authorizes seizure of

vessels intercepted in territorial waters, vessels in port where

immigration officials detect illegal entrants as they disem-

bark, and, arguably, vessels intercepted on the high seas in

connection to a conspiracy that extends into the United

States. It is not surprising that the forfeiture provisions

would be limited to property otherwise within United States

jurisdiction. Section (b)(1) counsels against, not in favor of,

extraterritorial application of (a)(1)(A)(i). The consequence to

(b)(1) of reading (a)(1)(A)(i) extraterritorially highlights the

dangers of disregarding the canon against extraterritoriality.

Because this court’s reading leaves the statute with no juris-

dictional limits, it would authorize the seizure and forfeiture

11

of foreign property within or subject to the jurisdiction of

other countries–-such as, for instance, the seizure of a ship

flying a foreign flag on the high seas, or even within the

territorial waters of a foreign country. To say that this

creates ‘‘conflict with the laws of other nations,’’ Sale, 509

U.S. at 174, not to mention with international treaties to

which the United States is a signatory, see, e.g., Convention

on the Law of the Sea, April 29, 1958, 13 U.S.T. 2312 (entered

into force Sept. 30, 1963), would be an understatement.

The court’s third, policy-based argument is that because

‘‘the terrorist attacks of September 11, 2001’’ remind us that

‘‘border-control policies are of crucial importance to [ ] nation-

al security and foreign policy,’’ the 1903 Congress that enact-

ed the provision must have intended it to reach extraterritori-

ally in order to protect the United States’ borders. Op. at 12.

Congress could, of course, adopt the same policy conclusion

and decide that criminalizing extraterritorial predicate acts

(such as, in the instant case, covert travel to Guatemala) is a

necessary component of border control. But an important

purpose behind the presumption against extraterritoriality is

that such decisions are to be made by Congress, and not the

courts. The record before the court contains nothing to

support the premise that territorial enforcement of the stat-

ute would be so inadequate that Congress could not have

intended it; for example, there is no evidence on which to

evaluate the relative effectiveness of different mechanisms of

immigration enforcement, such as how heavily immigration

authorities rely on interdiction in foreign countries rather

than at the United States border, or on interdiction on the

high seas vis-a-vis in territorial waters; nor is there any

evidence on whether interdiction on the high seas subject to

some other authority, without the threat of criminal sanctions,

is significantly less effective than interdiction with that

threat. The court’s failure to cite even one case in which

§ 1324(a)(1)(A)(i) has been applied extraterritorially under-

cuts its apparent fear that border control will be undermined

by failure to do so.

The unusual circumstances underlying the indictments at

issue hardly suggest that extraterritorial enforcement of

12

§ 1324 plays an integral role in United States border control.

The Jose Alexander II was not intercepted in United States

waters, or close to such waters and or headed towards them,

but was rather intercepted off the southern coast of Gua-

temala, over two thousand five hundred miles from the Unit-

ed States, en route from Ecuador to Guatemala. Nothing in

the record suggests that the Coast Guard deems it necessary

or even useful to patrol waters so distant from United States

shores to detect alien smuggling. The United States vessel

that spotted and intercepted the Jose Alexander II was not a

Coast Guard vessel but a Navy destroyer, the U.S.S. Fife,

that had a Coast Guard Law Enforcement Detachment on

board. The Coast Guard’s involvement was initially humani-

tarian, for purposes of providing food and water to the

migrants and ensuring their safety in reaching shore in

Guatemala. Only after the Jose Alexander II reached Gua-

temala did interviews with the passengers reveal circum-

stances that led to the criminal charges under § 1324.

Moreover, the court’s attempt to read post-September-11th

immigration policy into 8 U.S.C. § 1324 runs aground on the

legislative history of the attempt provision in the illegal

bringing offense. That history shows that Congress’ addition

of the attempt provision was meant to do nothing more than

ensure that those involved in transporting illegal aliens to the

United States would not be absolved from criminal liability

because an immigration official ultimately denied the aliens

entry into the country. The ‘‘bringing’’ offense, currently

codified at § 1324(a)(1)(A)(i), originated in § 6 of the 1891

Immigration Act, Act of March 3, 1891, ch. 551, 26 Stat. 1084

(1891), which made it a misdemeanor to ‘‘bring into or land in

the United States by vessel or otherwise, or [ ] aid to bring

into the United States TTT any alien not lawfully entitled to

enter.’’ This 1891 provision, because it required completion

of the offense, quite plainly did not apply extraterritorially.

The attempt provision was inserted by the 1903 Immigration

Act, Act of March 3, 1903 ch. 1012; Pub. L. No. 57–162; 32

Stat. 1213. The House Report to the 1903 Act explains that

Congress amended the provision to:

13

substitut[e] the word ‘‘attempt’’ for ‘‘aid,’’ the courts

having held that the word ‘‘aid’’ involved the actual

landing of the prohibited alien. Since such an alien is

rejected, the provision must be amended or remain, as it

has been since the decision TTT [,] a dead letter.

H.R. REP. NO. 57–982 at 4 (1902) (emphasis added). In other

words, Congress was responding to court decisions holding

that persons who brought aliens not entitled to enter the

United States could not be held liable under the initial

wording of § 6 when those aliens were denied entry by

immigration officials. Id. There is nothing to suggest that

the 1903 substitution of the term ‘‘attempt’’ for ‘‘aid’’ was

intended to expand the bringing offense extraterritorially;

the amendment was only to ensure that the criminal provision

would apply even when ‘‘such an alien is rejected,’’ id., i.e.,

when, upon reaching the United States, the alien is denied

entry. When Congress enacted the Immigration and Nation-

ality Act of 1952, ch. 477, Pub. L. No. 82–414 (1952), 66 Stat.

163, which consolidated existing immigration statutes and

relocated the bringing offense to § 1324 of the United States

Code, Congress described the 1903 amendment, which insert-

ed the attempt provision, only as intended ‘‘primarily to

codify existing law.’’ H.R. REP. NO. 82–1365 at 14 (1952).

When § 6 of the 1903 Act was recodified, with minor

changes, as § 8 of the 1917 Immigration Act, ch. 29, Pub. L.

No. 64–301; 39 Stat. 874, to prohibit ‘‘any person, including

the master, agent, owner, or consignee of any vessel’’ from

‘‘bring[ing] into or land[ing] in the United States, by vessel or

otherwise, or [ ] attempt[ing], by himself or through another,

to bring into or land in the United States’’ any undocumented

alien, nothing indicates that Congress intended to expand the

scope of the original 1891 law or the 1903 amendment.

Further, in 1933, when the United States prosecuted an alien

smuggler intercepted on the high seas on the theory that he

had attempted to bring unlawful aliens into the United States,

the Ninth Circuit, in Yenkichi Ito v. United States, 64 F.2d 73

(9th Cir. 1933), held that § 8 did not apply extraterritorially

and dismissed the indictment. Not surprisingly, Congress

nowhere tried to correct or express disagreement with the

14

Yenkichi Ito decision, which comported with Congress’ ex-

pressed intent in enacting the 1903 amendment.

The Supreme Court explained in Johnson v. Transp. Agen-

cy of Santa Clara Cty., 480 U.S. 616, 629 n.7 (1987), that

although Congressional ‘‘inaction’’ in the face of a judicial

construction of a statute ‘‘may not always provide crystalline

revelation,’’ that ‘‘should not obscure the fact that it may be

probative to varying degrees.’’ By virtue of the Ninth Cir-

cuit’s geography, Yenkichi Ito has been the law in every state

and territory having contact with the Pacific Ocean for over

seventy years. If Congress had thought it necessary that the

attempted bringing offense apply extraterritorially so as to

make it possible to intercept alien smugglers on the high

seas, it would, particularly if it had shared this court’s fear,

have corrected a decision that removed one of two neighbor-

ing oceans from the statute’s reach. While the court ob-

serves that other circuits, in cases such as Claramont v.

United States, 26 F.2d 797 (5th Cir. 1928) (per curiam), have

upheld the extraterritorial application of the encourage-

ment/inducement offense, see Op. at 20, the inducement of-

fense, unlike the attempted bringing offense, bears no obvious

nexus to the high seas or maritime interdiction. Yenkichi Ito

is the only case to decide whether the attempted bringing

offense under (a)(1)(A)(i) applies extraterritorially, and its

interpretation has been binding over a very large geographic

area for a very long time and never changed by Congress.

Congress has not acted to correct the interpretation in

Yenkichi Ito, moreover, despite being informed by the Justice

Department that it considered itself bound not to prosecute

the attempted bringing offense extraterritorially. When Con-

gress revised § 1324(a) in the Immigration Reform and Con-

trol Act of 1986, Pub. L. No. 99–603, 100 Stat. 3381, the

Justice Department urged Congress to retain the encourage-

ment/inducement offense, which the Department claimed had

‘‘proven to be a useful tool in combatting [sic] alien smug-

gling’’ and ‘‘the only provision TTT that has extra-territorial

application.’’ See H.R. REP. NO. 99–682, pt. 1, at 112 (1986).

The Department thus put Congress on notice that the De-

partment would not prosecute the attempted bringing offense

15

outside of the United States. Despite amending (a)(1)(A)(i)

to correct other court decisions not at issue here, Congress

took no action with respect to (a)(1)(A)(i)’s extraterritorial

application. Congress’ silence on extraterritorial application

of § 1324(a)(1)(A)(i), when confronted with both the Yenkichi

Ito decision and the Justice Department’s 1986 representa-

tion, is deafening.

There are, admittedly, fewer indications of Congressional

intent with respect to the encouragement/inducement offense

in 8 U.S.C. § 1324(a)(1)(A)(iv), which, on its face, is consis-

tent with or without a territorial limitation. The offense

originated in §§ 5–7 of the 1917 Immigration Act, which con-

templated that some prohibited encouragements such as ‘‘ad-

vertisements printed, published, or distributed in any foreign

country,’’ § 6, would occur abroad. It is unclear from the

face of the 1917 statute or the contemporaneous legislative

history, however, whether such extraterritorial acts would

also trigger liability for a foreign national who never set foot

in, or accompanied any unlawful aliens into, the United

States. The prohibitions on ‘‘solicit[ing] the importation or

migration of any day laborer’’ in § 5, and ‘‘soliciting or

attempting to induce, assist, encourage, or solicit any alien to

come into the United States by promise of employment’’ in

§ 6 both imply that Congress’ concern was primarily with

domestic employers. The civil penalties in § 7 of the Act

that related to those ‘‘engaged in the business of transport-

ing aliens to or within the United States’’ became operative

only upon a determination that the defendant ‘‘ha[d] brought

or caused to be brought to a port of the United States any

alien so solicited,’’ id. § 7, although the criminal penalties

under § 7 are the same as those for employers under § 5

and are similarly silent as to when liability is triggered.

Again, the 1952 Immigration and Nationality Act, which

consolidated these offenses into the generic encourage-

ment/inducement offense currently codified at

§ 1324(a)(1)(A)(iv), provides no indication that the simplifica-

tion and consolidation was intended to effect a significant

change in their operation.

Nothing about an encouragement/inducement provision

with a territorial limitation would be illogical. Most such

16

acts, as the court acknowledges, see Op. at 16, presumably

occur abroad, but that cuts against, not in favor of, extraterri-

torial application: there are likely few migrants who are not

encouraged or induced by some third party to make the

journey to the United States before they emigrate from a

foreign country. Congress could have reasonably concluded

that inducements by persons already in the United States,

such as employers promising jobs (as, historically, was the

principal concern in 1917), or residents urging friends and

family members to join them here, pose a greater threat than

encouragement by foreign nationals abroad, because the for-

mer are more likely to provide specific destinations and

credible promises of support and concealment upon arrival.

Or Congress could have concluded, as it did in the Maritime

Drug Act, 46 U.S.C. app. § 1903(a), that jurisdictional and

foreign policy concerns weigh against criminalizing activity by

foreign nationals in foreign jurisdictions, particularly, as here,

where the crime can consist of mere speech and is likely

exceedingly common.

The combination of a statutory text that permits but does

not require extraterritorial application and a silent legislative

history is not enough of a basis for a court to decide to apply

the encouragement/inducement offense in § 1324(a)(1)(A)(iv)

beyond the territorial jurisdiction of the United States.

Courts ‘‘assume that Congress legislates against the backdrop

of the presumption against extraterritoriality.’’ Arabian

American Oil Co., 499 U.S. at 248. As the Supreme Court

instructed in Sale, in refusing to consider a particular amend-

ment to the Immigration and Nationality Act sufficient evi-

dence of Congress’ intent to extend the law extraterritorially,

the possibility that Congress ‘‘might have intended’’ such a

result ‘‘is not a substitute for the affirmative evidence of

intended extraterritoriality that our cases require.’’ 509 U.S.

at 176. See also Empagran, 124 S.Ct. at 2366; Arabian

American Oil Co., 499 U.S. at 250.

B.

By departing from well-established Supreme Court prece-

dent against reading statutes to apply extraterritorially ab-

17

sent ‘‘affirmative evidence,’’ the court’s holding on 8 U.S.C.

§ 1324 stands alone. Other circuit courts of appeal have

upheld convictions for extraterritorial encouragement and

inducement where the alien ultimately entered the United

States, see United States v. Nunez, 668 F.2d 10, 12–13 (1st

Cir. 1981) (per curiam); United States v. Castillo–Felix, 539

F.2d 9, 12–13 (9th Cir. 1976); United States v. Williams, 464

F.2d 599, 601 (2nd Cir. 1972), and in dictum observed the

extraterritorial application of the attempted bringing offense

where a vessel is intercepted in United States waters. See

United States v. Liang, 224 F.3d 1057, 1060 (9th Cir. 2000).

Likewise in Claramont, 26 F.2d 797, relied on by the court,

see Op. at 20, the alien who was induced actually entered the

United States. See Emmanuel v. United States, 24 F.2d 905

(5th Cir. 1928); Smith v. United States, 24 F.2d 907 (5th Cir.

1928). But no other circuit court has previously upheld an

indictment under the encouragement/inducement charge,

§ 1324(a)(1)(A)(iv), where, as here, the inducement takes

place abroad and the alien never reaches the United States,

or under the attempted bringing charge, § 1324(a)(1)(A)(i),

where, as here, no aspect of the attempt ever reaches the

United States. There are no cases on point from other circuit

courts of appeal regarding the encouragement/inducement

offense, and the only case on point regarding the attempted

bringing offense, Yenkichi Ito, 64 F.2d 73, rejects the court’s

interpretation.

The breadth that the court reads into 8 U.S.C. § 1324

should not be understated. While the conduct at issue in this

particular case occurred on the high seas, nothing in the

statute, once untethered from any territorial limit, confines it

to maritime interdiction. Presumably, the guide who covertly

helps migrants from Ecuador into Colombia (so that they can

eventually reach the United States) could be guilty of conspir-

acy to violate § 1324(a)(1)(A)(i); the Ecuadorian mother who

convinces her son to make the illegal voyage to the United

States so that he can send back money to support the family

living abroad could be guilty of violating § 1324(a)(1)(A)(iv).

The point is not that Congress could not, subject to the

limitations of the Fifth Amendment, see United States v.

18

Davis, 905 F.2d 245 (9th Cir. 1990), criminalize such conduct

(or that the United States would care to enforce the statute

against minor participants), but rather that absent a territori-

al stopping point, the breadth of the statute becomes stagger-

ing. The court’s confidence that prosecutorial discretion and

diplomatic skill will smooth over such difficulties, see Op. at

21, is not particularly reassuring or relevant: if the Supreme

Court thought Executive Branch expertise were the solution

to problems arising from the unintentional application of

United States law abroad, there would be little need for a

canon against extraterritoriality.

Indeed, the lack of jurisdictional limits in 8 U.S.C. § 1324

should be a warning that Congress did not contemplate

extraterritorial application. As noted, Congress’ approach to

preempting the importation of illegal drugs in the Maritime

Drug Act, 46 U.S.C. app. §§ 1901–04 (the law the U.S.S. Fife

was likely enforcing when it happened upon the defendants’

vessel), is instructive. In that Act, Congress expressly ex-

tended its reach to vessels on the high seas, but limited it to

vessels subject to the jurisdiction of the United States, state-

less vessels, vessels of consenting nations, and United States

citizens and resident aliens on board any vessel. Id.

§ 1903(a); cf. United States v. Gonzalez, 311 F.3d 440 (1st

Cir. 2002). Congress thus drew a line, based on its judg-

ments about foreign relations and international law, that it

would not criminalize acts by foreign nationals on the vessels

of foreign nations without such nations’ consent. This is

precisely what the presumption against extraterritorial appli-

cation serves to ensure: that Congress consider such factors

and draw such lines, and that the judiciary, lacking foreign

policy expertise, respect these considerations by erring

against finding extraterritorial application in unclear statutes.

The Supreme Court’s decision this Term in Empagran, 124 S.

Ct. at 2366, could not be clearer on this point.

In sum, the court’s interpretation, which criminalizes acts

irrespective of location, jurisdiction, or the nationality of the

defendant, absent any indication that Congress gave such

factors consideration, fails to heed the prudential interests

the canon safeguards. Both through the substantive offenses

19

and inchoate crimes, application of 8 U.S.C. § 1324 extraterri-

torially criminalizes a wide range of conduct that is legal in

the countries in which it occurs, including a great deal of

travel and speech. The court’s holding allows 8 U.S.C.

§ 1324, where Congress was silent about extraterritoriality,

to reach, paradoxically, much further into the jurisdiction of

other countries than the closely analogous Maritime Drug

Act, in which Congress expressly proclaimed its intention to

apply the statute abroad. It is unlikely that Congress ever

intended such a dichotomous outcome, and ‘‘context’’ alone

cannot provide the requisite indication of Congressional intent

as required by the Supreme Court. Because Congress has

not ‘‘clearly expressed’’ that the offenses charged in the

indictment under 8 U.S.C. § 1324 are to apply extraterritori-

ally, Arabian American Oil Co., 499 U.S. at 248 and the

government fails to offer evidence to overcome the presump-

tion against extraterritoriality of statutes, and because the

government has waived any waiver claim it might have

against the statutory challenge, see concurring opinion of

Judge Randolph, the indictments should have been dismissed.

Accordingly, I respectfully dissent.