Petition for Writ of Certiorari — Corey v. United States
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FILED
Y 501F42 vu 06 200!
No. ;
OFFICE OF
IN THE SUPREME COURT OF THE UNITED STATES
CLIFTON S. COREY
Petitioner
.
UNITED STATES OF AMERICA
Respondent
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
SAMUEL P. KING, JR.
Counsel of Record
735 Bishop Street, Suite 304
Honolulu, Hawaii 96813
(808) 521-6937
EARLE A. PARTINGTON
1330 Pacific Tower
1001 Bishop Street
Honolulu, Hawaii 96813
(808) 526-9500
DAVID J. BEDERMAN
Gambrell Hall
Atlanta, Georgia 30322-2770
(404) 727-6822
Attorneys for Petitioner
(i)
QUESTION PRESENTED
Whether Congress intended 18 USC §7(3), defining
the "special . . . territorial jurisdiction of the United
States," to apply extraterritorially by implication and
contrary to both international law and the presumption
against extraterritoriality to crimes committed on "lands"
used by the Untied States in the sovereign territory of
foreign nations?
(ii)
TABLE OF CONTENTS
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Petition for Writ of Ceritorari .............cccccces
Copan TR ioc o's ook kes biuess ewer tions
Statement OF RteGaCIO ws ok oc oko ccc cw cecededs
SURAOING TI 5 nk ea SG Peeves
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Reasons for Granting the Petition ................
1. There is a split among the Second, Fourth, and Ninth
Circuits as to whether Congress intended that 18 USC
§7(3) apply extra-territorially ........... cece eens
2. By refusing to apply the presumption against extra-
territoriality, the Ninth Circuit majority interpretation
of 18 USC §7(3) violates international law by its
implicit claim of United States sovereignty over the
sovereign territory of foreign nations ...........++.
3. The Ninth Circuit majority interpretation of 18 USC
§7(3) is an improper intrusion into the foreign policy-
making powers vested by the United States Constitution
in the Executive and Legislative Branches ..........
4. The Ninth Circuit majority interpretation of 18 USC
§7(3) essentially renders the Military Extra-territorial
Jurisdiction Act of 2000 (MEJA) a meaningless statute
and conflicts with clearly expressed congressional intent
in Ge RSA on 0s kn 0 6ek eee ane oes
COCO. ook kc knco dca nee eee
po eee eee eee ee re App. 1
12
(iii)
TABLE OF AUTHORITIES
Page
CASES
Cook v. United States,
o-oo ccc ss cvenasccdcueves 11
EEOC v. Arabian Am. Oil Co.,
ED eng eva ss ea'eu kes cs ukne es 10
Hartford Fire Ins. Co. v. California,
ETE eas eu oko sdesev a0 eeevs 10
Lauritzen v. Larsen,
sr 11
McKeel v. Islamic Republic of Iran,
722 F.2d 562 (Sth Cir. 1963) .......... 0.0000. 8
Reid v. Covert,
i tS Er 14, 15, 16-17
Romero v. International Terminal Operating Co.,
pte ety tg EO 10-11
United States v. Bowman
i i. th oviweiwalsestesscdées 10
United States v. Erdos,
474 F.2d 157 (4th Cir.),
cert. denied, 414 U.S. 876 (1973) ........ errs}
United States v. Gatlin,
216 F.3d 207 (2d Cir. 2000) .. 7, 8, 9, 13, 14, 15, 17
STATUTES
nes san isk Gkn wanes a ee ans passim
0 ee re 2, 3-4,5
ns oooh Cah kn deen ba cus 2, 4,5
ee ie ina os bc Weiss hu dws 4,5,9
(iv)
Page
STATUTES (Cont.)
18 USC §3261 et seq.
(Military Extraterritorial Jurisdiction
POE OE Meee GREIA)) 2.2 nccssscscceas 16, 17, 18
Be EI 605 66a cs cnc sen saenckinddeeseah 18
EEE a ohn ascend dndavvoesepesdeeuanexwe 2
yg PTT PTT ESOTTTCET ETT eer er TT etre 2
28 USC §1294(1) ......... Pere eee ee eee ee 2
OTHER MATERIAL
Ian Brownlie, Principles of Public International Law (3d ed.
OPEN banc cdevcopeasauwe Vass kpaxeen wecdns 11
Jordan J. Paust, Non-Extraterritoriality of “Special Territorial
Jurisdiction” of the United States: Forgotten History
and the Errors of Erdos,
24 Yale J. Int'l L. 305 (1999) ........... 8, 10, 11
Report of the Overseas Jurisdictional Advisory Committee
fk & a eererrere er ere re 14, 15, 16, 17
Restatement (Third) of the Foreign Relations Law of the
Cy See CE OE. BONO) cach sacactcnaenc’ 11
COURT RULES
Supreme Court Rule 10(a) .................. ... 9-10
gg Pr re rr er 2
’
PETITION FOR WRIT OF CERTIORARI
Petitioner Clifton S. COREY ("Petitioner") respectfully
prays that a writ of certiorari issue to review the November 20,
2000, judgment and opinion of the United States Court of
Appeals for the Ninth Circuit entered in this proceeding in
order to resolve the conflict among the Second, Fourth, and
Ninth Circuits on the important statutory interpretation,
territorial jurisdiction, and international law issues presented
herein.
OPINIONS BELOW
The November 20, 2000, reported opinion of the
United States Court of Appeals for the Ninth Circuit, United
States v. Corey, is found at 232 F.3d 1166 (9th Cir. 2000), and
is reprinted at App. 1. The Ninth Circuit denied Petitioner’s
petition for rehearing and suggestion for rehearing en banc by
Order filed April 9, 2001, which is reprinted at App. 78. The
Ninth Circuit Judgment is reprinted at App. 79.
The Order Granting the Government's Motion in
Limine to Prohibit Objection to Jurisdiction as a Matter of
Law During Trial, filed July 7, 1997, and the Order
Denying Defendant's Motion to Dismiss Indictment and
Granting the Government's Motion in Limine, filed April
16, 1998, of the United States District Court for the District
of Hawaii, Chief Judge David A. Ezra, were unreported.
The two decisions of the district court are preprinted at
App. 81 and App. 94 respectively.
2
STATEMENT OF JURISDICTION
Petitioner was indicted in the District of Hawaii for
sexual assault and abuse under 18 USC §§2241(a) and
2242(1). The Third Superseding Indictment charged acts
of sexual assault and abuse by Petitioner which allegedly
occurred between 1992 and 1996 in base housing at Yokota
Air Base, Japan, a United States military base, and in an
apartment in Manila, the Philippines, rented by the United
States Embassy for members of its administrative staff.
Petitioner operated the Air Force Post Offices at Yokota
Air Base near Tokyo and the United States Embassy in
Manila as a civilian employee of the United States Air
Force in both locations. Pursuant to 28 USC §§1291 and
1294(1), Petitioner timely appealed to the Ninth Circuit
from his conviction. In a reported opinion filed Novem-
ber 20, 2000 (232 F.3d 1166), the opinion for which
certiorari review is sought in this Court, the Ninth Circuit
majority affirmed the district court's rulings that the
United States has territorial jurisdiction pursuant to 18
USC §7(3) over Yokota Air Base, Japan, and an apartment
rented by the United States Embassy in Manila. In a
separate memorandum opinion filed November 20, 2000,
the Ninth Circuit unanimously vacated Petitioner's
conviction based on trial error and remanded this case for
a new trial. The judgment of the Ninth Circuit was also
filed on November 20, 2000. On April 9, 2001, the Ninth
Circuit denied Petitioner's timely-filed motion for
rehearing and suggestion for rehearing en banc on the
territorial jurisdiction issue. Pursuant to Supreme Court
Rule 13, this petition has been filed within ninety days of
the April 9, 2001, denial of rehearing. The jurisdiction of
this Court is invoked pursuant to 28 USC §1254(1).
hr O MEP ete Se ns we et
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STATUTES INVOLVED
18 USC §7(3). Special maritime and territorial
jurisdiction of the Untied States defined.
The term "special . . . territorial jurisdiction
of the United States", as used in this title,
includes:
(3) Any lands reserved or acquired
for the use of the United States, and under
the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise
acquired by the United States by consent of
the legislature of the State in which the same
shall be, for the erection of a fort, magazire,
arsenal, dockyard, or other needful
building.
* 7 * *
18 USC §2241. Aggravated sexual assault.
(a) By force or threat. - Whoever, in the
special maritime and territorial jurisdiction of the
United States or in a federal prison, knowingly
causes another person to engage in a sexual act -
(1) by using force against the other
person; or |
(2) by threatening or placing the
other person in fear that any person will be
subjected to death, serious bodily injury, or
kidnapping;
4
or attempts to do so, shall be fined under this title,
imprisoned for any term of years or life, or both.
18 USC §2242. Sexual abuse.
Whoever, in the special maritime and
territorial jurisdiction of the United States or in a
‘federal prison, knowingly --
(1) causes another person to engage
in a sexual act by threatening or placing that
other person in fear (other than by
threatening or placing that other person in
fear that any person will be subject to death,
serious bodily injury, or kidnapping);
or attempts to do so, shall be fined under this title,
imprisoned no more than 20 years, or both.
18 USC §3238. Offenses not committed in any
district.
The trial of all offenses begun or committed
upon the high seas, or elsewhere out of the
jurisdiction of any particular State or district, shall
be in the district in which the offender, or any one
of two or more joint offenders, is arrested or is first
brought; but if such offender or offenders are not
so arrested or brought into any district, an
indictment or information may be filed in the
district of the last known residence of the offender
or of any one of two or more joint offenders, or if
no such residence is known the indictment or
information may be filed in the District of
Columbia.
5
STATEMENT OF THE CASE
Petitioner was indicted in the District of Hawaii in
1996 under 18 USC §§2241(a) and 2242(1) for allegedly
committing acts of sexual assault and abuse against his
adopted stepdaughter, Anna Corey. Venue was predi-
cated in the District of Hawaii under 18 USC §3238 as a
result of Petitioner’s arrest in Honolulu. Prior to the first
trial in this case (which eventually ended in a hung jury
mistrial), the government filed a First and then Second
Superseding Indictment. The Second Superseding Indict-
ment alleged counts of sexual assault and abuse which
occurred at two locations over a period from 1992 to 1996
outside the territory of the United States - some at base
housing on Yokota Air Base, Japan, a United States
military base (hereafter sometimes referred to as “the
Yokota counts”), and some at an apartment at Lopez Court
rented by the United States Embassy in Manila, the
Philippines, for Petitioner's use as a member of the
embassy administrative staff (hereafter sometimes
referred to as “the Manila counts”). Petitioner operated
the Air Force Post Offices at Yokota Air Base and the
United States Embassy in Manila as a civilian employee of
the United States Air Force in both locations. For technical
reasons, the Yokota counts in the Second Superseding
Indictment were dismissed prior to the first trial. After
the Yokota counts were dismissed, the issue of whether
the United States has territorial jurisdiction over Lopez
Court, Manila, was raised prior to the first trial by the
government's Motion in Limine to Prohibit Objection to
Jurisdiction as a Matter of Law During Trial. The district
court ruled that the apartment at Lopez Court rented for
Petitioner as a member of the embassy administrative staff
ee
6
in Manila, the Philippines, was part of “lands” within the
“special . . . territorial jurisdiction of the United States” as
defined by 18 USC §7(3). As noted above, the first trial
ended in a hung jury mistrial.
After the first trial, the government filed a Third
Superseding Indictment. This version of the Indictment
added back the Yokota counts. Prior to the second trial,
the government filed a Motion to Determine Jurisdiction
in Counts 8-11 (the Yokota counts). The government's
motion prior to the second trial only sought determination
regarding jurisdiction as to the Yokota counts because the
district court had ruled on the jurisdictional issue as to the
Manila counts prior to the first trial. Prior to the second
trial, Petitioner responded to the government's Yokota
count motion by filing a Motion to Dismiss Indictment.
Petitioner's motion asked the district court to reconsider
its previous decision that the United States has territorial
jurisdiction over Lopez Court, Manila, and further
challenged the claim of the government that the United
States has territorial jurisdiction over Yokota Air Base,
Japan. The district court resolved these motions by filing
its Order Denying Defendant's Motion to Dismiss
Indictment and Granting the Government's Motion in :
Limine. In this order, the district court affirmed its earlier j
ruling that the United States has territorial jurisdiction
over Lopez Court, Manila, and ruled that the United States
also has territorial jurisdiction over Yokota Air Base,
Japan.
At his second trial, Petitioner was acquitted on
three of the Manila counts of the Third Superseding
Indictment and convicted of the remaining Manila counts
and all of the Yokota counts. |
i i ad SERN EAM RUNING te 198
7
On appeal, the Ninth Circuit unanimously vacated
Petitioner's conviction based on trial error, but the
majority affirmed the district court's ruling that the United
States has territorial jurisdiction over the foreign “lands”
in issue. Because the Ninth Circuit majority found there
was territorial jurisdiction, this case was remanded for a
new trial. Circuit Judge Kozinski, with whom Circuit
Judge Kleinfeld joined, authored the majority opinion,
and Circuit Judge McKeown dissented. Petitioner's
petition for rehearing and suggestion for rehearing en banc
was denied. Judge McKeown would have granted the
petition for rehearing.
REASONS FOR GRANTING THE PETITION
1. There is a split among the Second, Fourth, and
Ninth Circuits as to whether Congress intended
that 18 USC §7(3) apply extraterritorially.
Five months before the Ninth Circuit decided the
instant case, the Second Circuit decided United States v.
Gatlin, 216 F.3d 207 (2d Cir. 2000). The defendant in Gatlin
had been convicted under 18 USC §2243(a) of sexual abuse
of a minor which occurred on a United States military
base in Germany which military base the prosecution
claimed was part of “lands” within the “special . . .
territorial jurisdiction of the United States” as defined by
18 USC §7(3). The Second Circuit held in Gatlin that 18
USC §7(3) does not apply extraterritorially, i.e., outside the
territory of the United States over the sovereign territory
of foreign nations. Because the United States military base
in Germany was outside the territory of the United States,
8
the Second Circuit reversed Gatlin’s conviction and
dismissed the indictment for lack of both territorial and
personal jurisdiction. When the Ninth Circuit decided the
instant case, the majority recognized that its conclusion
applying 18 USC §7(3) extraterritorially was in direct
opposition to the holding of the Second Circuit. 232 F.3d
at 1172-76; App. at 10-21.
On the specific territorial jurisdiction issue raised
here, the Ninth Circuit is in apparent confiict with the
Fourth Circuit. In United States v. Erdos, 474 F.2d 157 (4th
Cir.), cert. denied, 414 U.S. 876 (1973), the Fourth Circuit
held that the premises of the United States Embassy in
Equatorial Guinea are within the “special . . . territorial
jurisdiction of the United States” as defined in 18 USC
§7(3) because the premises of a United States embassy are
United States territory. 474 F.2d at 159. The Ninth Circuit
majority in the instant case claimed to be in agreement
with Erdos (232 F.3d at 1172; App. at 9-10), but this is
clearly untrue. Erdos applied the “special . . . territorial
jurisdiction of the United States” to what it thought was
the territory of the United States, i.e., a United States
Embassy. By contrast, the Ninth Circuit majority applied
the “special . . . territorial jurisdiction of the United States”
to the sovereign territory of two foreign nations which
territory is clearly not the territory of the United States.
The flaw in Erdos is that the premises of a United States
Embassy are not United States territory but the sovereign
territory of the host nation. McKeel v. Islamic Republic of
Iran, 722 F.2d 582, 588 (9th Cir. 1983); Jordan J. Paust, Non-
Extraterritoriality of “Special Territorial Jurisdiction” of the
United States: Forgotten History and the Errors of Erdos, 24
Yale J. Int’] L. 305 (1999) (hereinafter “Paust”). The Fourth
9
Circuit in Erdos, like the Second Circuit in Gatlin,
recognized that 18 USC §7(3) applies to the territory of the
United States. Nowhere in Erdos did the Fourth Circuit
suggest or imply that 18 USC §7(3) could apply to the
sovereign territory of foreign nations. By contrast, the
Ninth Circuit majority applied 18 USC §7(3) to “lands”
which are indisputably not the territory of the United States
and for which the host nations have not ceded territorial
jurisdiction to the United States. Contrary to the
implication of the Ninth Circuit majority (232 F.3d at 1181-
83; App. at 32-38), the Status of Forces Agreement (SOFA)
with Japan and the Vienna Convention do not cede
territorial jurisdiction of any nation to any other nation.
Paust at 313-14, 325-27.
This split in the circuits creates serious problems.
For example, the Ninth Circuit majority’s claim that the
presumption against extraterritoriality (see Sec. 2, infra)
does not apply to jurisdictional statutes (232 F.3d at 1170-
71; App. at 5-7) is a broad statement of law which applies
far beyond the criminal law context of the instant case.
Further, under 18 USC §3238, entitled “Offenses not
committed in any district,” an offender is to be tried in the
district where he or she “is arrested or first brou ght.” This
means that a defendant indicted in the Ninth Circuit,
pursuant to a claim of territorial jurisdiction under 18 USC
§7(3), based upon activities which occurred in the
sovereign territory of a foreign nation, can evade
prosecution in the United States for the alleged offense
committed overseas by going directly from overseas to the
Second Circuit and never leaving. This would be an
intolerable situation.
This Court should resolve the conflict among the
Second, Fourth, and Ninth Circuits (see Supreme Court
10
Rule 10 (a)), especially because the Second and Ninth
Circuits include the busiest ports of entry into the United
States, and it is within these circuits that the territorial
jurisdiction. issue raised herein is most likely to arise
again.
2. By refusing to apply the presumption against
extraterritoriality, the Ninth Circuit majority
interpretation of 18 USC §7(3) violates
international law by its implicit claim to United
States sovereignty over the sovereign territory of
foreign nations.
This Court held in EEOC v. Arabian Am. Oil Co., 499
U.S. 244, 248 (1991), that there is a presumption against
extraterritorial application of statutes which presumption
“serves to protect against unintended clashes between our
laws and those of other nations which could result in
international discord.” More generally, this Court has
demanded that a claimed reach of a federal statute
extraterritorially be clearly manifest, if not also clearly
expressed, or the statute will be held to be nonextra-
territorial. United States v. Bowman, 260 U.S. 94, 97-98
(1922); Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814
(1993) (Scalia, J., dissenting); Paust at 308-09 & ns.9-10.
The Ninth Circuit majority expressly refused to apply the
presumption against extraterritoriality to 18 USC §7(3)
and instead held that a “jurisdictional statute” such as 18
USC §7(3) is subject only to the “standard tools of
statutory interpretation.” 232 F.3d at 1170-71; App. at 5-7.
This holding also conflicts with Justice Frankfurter’s ad-
monishment in Romero v. International Terminal Operating
SPD RL Wists nN ANNI NE teh BP ile ase tee
11
Co., 358 U.S. 354, 379 (1959), that federal courts must be
hesitant “to expand the jurisdiction of the federal courts
through a broad reading of jurisdictional statutes.”
By ignoring the presumption against extraterri-
toriality, the Ninth Circuit majority created the very
“unintended clash” that the presumption seeks to avoid.
The Ninth Circuit majority opinion permits the United
States to extend its territorial jurisdiction over the
sovereign territory of foreign nations. Unfortunately, such
an extension of territorial jurisdiction by the United States
violates international law because territorial jurisdiction is
an attribute of national sovereignty. See Restatement
(Third) of the Foreign Relations Law of the United States, §402
(1987); Ian Brownlie, Principles of Public International Law
309-10 (3d ed. 1979); Paust at 310-12. “An Act of Congress
ought never to be construed to violate the law of nations
if any other possible construction remains.” Lauritzen v.
Larsen, 345 U.S. 571, 578 (1953) (quoting Chief Justice
Marshall). Congressional intent to override international
law must be clear and unequivocal. See, e.g., Cook v.
United States, 288 U.S. 102, 119-20 (1993); Paust at 314 &
n.35. No such congressional intent exists with respect to
18 USC §7(3).
No foreign nation claims territorial jurisdiction over
the territory of the United States in the same manner that
the Ninth Circuit majority has construed 18 USC §7(3) to
assert United States territorial jurisdiction over the
sovereign territory of foreign nations. When the
governments of friendly foreign nations in which the
United States maintains military bases discover that the
United States is claiming territorial jurisdiction over their
sovereign territory, it is inevitable that these nations will
file diplomatic protests against the United States’ violation
ee
12
of international law in asserting such jurisdiction. Most
certainly, were a foreign nation, in response to the Ninth
Circuit majority opinion, to claim territorial jurisdiction
over the sovereign territory of the United States, the
United States would file a diplomatic protest with that
nation. Query then whether it is appropriate for the Ninth
Circuit to hold that Congress, in enacting 18 USC §7(3),
intended by implication and contrary to the presumption
against extraterritoriality to violate international law by
extending Untied States sovereignty to the sovereign
territory of foreign nations?
3. The Ninth Circuit majority interpretation of 18
USC §7(3) is an improper intrusion into the
foreign policy-making powers vested by the
United States Constitution in the Executive and
Legislative Branches.
At a time when the United States is shifting its
foreign and military policy emphasis to the Pacific basin,
it is important that this Court address the foreign policy as
well as the international law implications of the Ninth
Circuit majority opinion in view of the Ninth Circuit's
proximity to the Pacific basin. Under the Constitution, the
foreign policy-making power is vested in the Executive
Branch. The power to enact jurisdictional statutes for
crimes committed abroad is vested in the Legislative
Branch.
From the foreign policy perspective, the Ninth
Circuit majority opinion has very significant implications.
For example, consider the situation of two Philippine
citizens, who have no connection whatsoever with the
United States, who engage in conduct on the premises of
13
housing rented for United States Embassy staff in Manila
which conduct would constitute a crime under United
States criminal law if committed within the “special .. .
territorial jurisdiction of the United States.” By
application of the Ninth Circuit majority’s opinion, these
Philippine citizens would be subject to criminal
prosecution anywhere in the Ninth Circuit in the United
States regardless of whether United States’ interests were
implicated. This would be true even if the conduct of the
Philippine citizens did not constitute a crime in the
Philippines. Also, by the logic of the Ninth Circuit
majority opinion, citizens of foreign countries are subject
to United States criminal law any time they enter a United
States military base in a foreign country even if their
crimes do not implicate the United States in any way.
The Ninth Circuit majority opinion asserts that
“American foreign policy” is not “served” by construing
18 USC §7(3) in the limited manner the Second Circuit did
in Gatlin and that the territorial jurisdiction of 18 USC
§7(3) over the sovereign territory of foreign nations will
never be invoked if the foreign sovereign objects. 232 F.3d
at 1171 & 1176. However, if the existing language of 18
USC §7(3) is to be construed, as the Ninth Circuit majority
construed it, to apply to the sovereign territory of foreign
nations, there is no existing language in the statute which
would limit the statute’s reach based on the objection of a
foreign nation. As long as the power recognized by the
Ninth Circuit majority opinion exists to prosecute crimes
in the sovereign territory of a foreign nation, a United
States attorney within the Ninth Circuit can and will use
this power to prosecute one or more foreign nationals
based on a claim of territorial jurisdiction without regard
to the wishes of the foreign sovereign involved. Query if
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14
the Ninth Circuit's majority opinion has not resulted in the
judiciary’s intruding into the foreign policy-making
power that is vested in the Executive Branch and the
legislative power that is vested in the Legislative Branch?
4. The Ninth Circuit majority interpretation of 18
USC §7(3) essentially renders the Military Extra-
territorial Jurisdiction Act of 2000 (MEJA) a
meaningless statute and conflicts with clearly
expressed congressional intent in the MEJA.
The United States has never before claimed
territorial jurisdiction over the sovereign territory of
foreign nations, so prosecutions by the United States of
crimes committed outside United States territory has
never been based on territorial jurisdiction. With respect
to civilians accompanying the United States Armed
Forces, prior to 1957, the United States prosecuted crimes
committed by these civilians outside United States
territory based on personal jurisdiction under the Uniform
Code of Military Justice. However, since this Court
decided Reid v. Covert, 354 U.S. 1 (1957), and its progeny
(striking down court-martial jurisdiction over civilians in
time of peace), there has existed an absence even of
personal jurisdiction over “the most common and most
serious crimes . . . [flor example, rape, sexual assault,
theft, aggravated assault, robbery, and burglary” (see
OJAC Report, infra, at 40-41) committed by civilians
accompanying the United States Armed Forces outside
United States territory. This lack of jurisdiction has been
referred to as the “jurisdictional gap.” Gatlin, 216 F.3d at
220-21. When this Court decided Reid v. Covert, it
15
recognized the existence of the “jurisdictional gap,”
because the government raised this point in its argument
to this Court. 354 U.S. at 48 (Frankfurter, J., concurring).
The Ninth Circuit majority opinion claims that, in
enacting 18 USC §7(3), Congress never intended that there
be any “jurisdictional gap.” 232 F.3d 1172-76, 1183; App.
at 9-21, 38-39. Yet, as noted in Gatlin, Congress failed on
more than thirty occasions over forty years to close the
“gap” which it knew existed. 216 F.3d at 222. This “gap”
is referred to by the Ninth Circuit majority as a “get-out-
of-jail-free-card.” 232 F.3d at 1176; App. at 21. With
respect to the instant case, this is clearly incorrect because
Petitioner could in fact be subject to prosecution in Japan
and the Philippines for his alleged crimes. By contrast, the
wives who murdered their military husbands in Reid v.
Covert did indeed “get out of jail free” because they could
not even be prosecuted by the countries in which they
committed their crimes (the United Kingdom and Japan)
under the laws as they existed at that time.
In 1996, by act of Congress, the Overseas
Jurisdiction Advisory Committee (OJAC) was appointed
by the Secretary of Defense and the Attorney General to
advise Congress about the problem of the “jurisdictional
gap.” The OJAC filed its report to Congress on April 18,
1997, confirming the view of all commentators that the
“jurisdictional gap” did indeed exist. The OJAC report
was endorsed and signed by a representative of the
Department of Justice, but in the instant case, the
Department of Justice takes a position contrary to its
position in the OJAC report by now claiming that the
“gap” has never existed. Query whether it is appropriate
for the Department of Justice to be taking contrary
positions on the important territorial jurisdiction issue
16
raised here - telling Congress one thing and the federal
courts the exact opposite?
In 2000, pursuant to the urging of the OJAC in its
report, Congress enacted the Military Extraterritorial
Jurisdiction Act of 2000 (MEJA) (18 USC §3261 et seq.) to
close at least some of the “gap.” As discussed below, the
MEJA does not close all of the “gap.” The MEJA, a
personal jurisdiction statute, provides in section 3261(a):
Whoever engages in conduct outside the United
States that would constitute an offense punishable
by imprisonment for more than 1 year if the
conduct had been engaged in within the special
maritime and territorial jurisdiction of the United
States - (1) while employed by or accompanying
the Armed Forces outside the United States: or (2)
while a member of the Armed Forces subject to
chapter 47 of title 10 (the Uniform Code of Military
Justice), shall be punishable as provided for that
offense.
Because Petitioner was a civilian employed by the United
States Air Force at Yokota Air Base in Japan and in the
United States Embassy in the Philippines, his alleged
conduct would have violated the MEJA if the statute had
existed in 1992-1996, the period during which Petitioner's
alleged criminal conduct occurred. No such statute existed
during the period of Petitioner's alleged criminal conduct so the
federal courts did not have jurisdiction over Petitioner's
alleged conduct.
As the OJAC report showed, all departments of the
United States government and all commentators agreed
that, both before and after Reid v. Covert, there was no
17
basis for applying the United States criminal code outside
the territory of the United States under 18 USC §7(3). This
is exactly what the Second Circuit recognized in Gatlin,
and this is the reason the Gatlin court directed that its
opinion be sent to Congress where the Gatlin court
requested that Congress solve the “jurisdictional gap”
problem through appropriate legislation. 216 F.3d at 223.
When the Gatlin decision was conveyed to Congress,
Congress was already well on its way to enacting the
MEJA based on the recommendation of the OJAC. If the
Ninth Circuit majority is correct in rejecting the
conclusions of the OJAC report as well as the opinions of
all of the commentators, as it did (232 F.3d at 1183: App. at
38-39) in order to extend 18 USC §7(3) to the sovereign
territory of foreign nations, then there was no need for
Congress to enact the MEJA. Query if there was indeed
no need for Congress to enact the MEJA?
Note that the MEJA certainly did not close all of the
“gap.” The MEJA and 18 USC §7(3), as interpreted by the
Ninth Circuit majority, are not co-extensive. Because the
MEJA is a personal jurisdiction statute, it applies to crimes
committed by a certain class of people (persons employed
by or accompanying the Armed Forces of the Untied
States and members of the Armed Forces) no matter where
they are. Because 18 USC §7(3) is a territorial jurisdiction
statute, it applies to all crimes committed in a certain area
(“the special . . . territorial jurisdiction of the United
States) by any person, no matter who the person is - the
person can be a United States citizen or a foreign national.
Thus, activities which constitute crimes under the federal
criminal code committed on “lands,” as defined in 18 USC
§7(3) under the Ninth Circuit majority opinion, in foreign
iia
18
nations by persons who are not covered by the MEJA may
be prosecuted in the Ninth Circuit. Generally, the sweep
of 18 USC §7(3) is far greater than the sweep of the MEJA
because 18 USC §7(3) applies to all people in a given
location. It is clear that enactment of the MEJA has not
eliminated the territorial jurisdiction issue and associated
international law problems created by the split in the
circuits over the interpretation of 18 USC §7(3).
The principle example of this broader sweep of 18
USC §7(3) is its application to nationals and residents of
the foreign nations hosting United States Embassies and
military bases. It is very significant that Congress ex-
pressed its will in the MEJA that not all persons who
commit crimes on “lands” used by the United States in the
sovereign territory of foreign nations are to be subject to
the MEJA. Specifically, 18 USC §3267(1)(C) excludes from
the ambit of the MEJA any person who is “a national of or
ordinarily resident in the host nation.” Notwithstanding
this clear intent of Congress, the Ninth Circuit majority
has interpreted 18 USC §7(3) to include the very persons
that Congress has said shall not be subject to United States
jurisdiction under the MEJA - namely, nationals and
residents of the host nation. Query if the Ninth Circuit
may disregard such a clear expression of congressional
will in interpreting 18 USC §7(3)?
19
CONCLUSION
For the foregoing reasons, this Petition ought to be
GRANTED.
Respectfully submitted,
SAMUEL P. KING, JR.
Counsel of Record
735 Bishop Street, Suite 304
Honolulu, Hawaii 96813
(808) 521-6937
EARLE A. PARTINGTON
1330 Pacific Tower
1001 Bishop Street
Honolulu, Hawaii 96813
(808) 526-9500
DAVID J. BEDERMAN
Gambrell Hall
Atlanta, Georgia 30322- —
(404) 727-6822
Attorneys for Petitioner
Page
App. 1
App. 40
App. 78
App. 79
App. 80
App. 81
App. 94
Appendix
Document Filed
United States v. Corey 11/20/00
232 F.3d 1166 (9th Cir. 2000)
United States v. Corey 11/20/00
Dissent of McKeown, J.
232 F.3d at 1183
Order of the Ninth Circuit
Denying Petition for Rehearing 4/ 9/01
Judgment of the Ninth Circuit 11/20/00
Introduction to two district court
opinions
Order Granting the Government's
Motion in Limine to Prohibit
Objection to Jurisdiction as a
Matter Of Law During Trial 7 {7/97
Chief Judge David A. Ezra
District Court of Hawaii
Order Denying Defendant's
Motion to Dismiss Indictment
and Granting The Government's
Motion in Limine 4/16/98
Chief Judge David A. Ezra
District Court of Hawaii
App. 1
(This opinion is reported at 232 F.3d 1166.
Page references to the reported decision are
imbedded in the opinion for reference.)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES of America, Plaintiff-Appellee,
Vv
Clifton S. COREY, Defendant-Appellant.
No. 99-10232
D.C. No. CR-96-01019-MLR
Appeal from the United States District Court for the
District of Hawaii; David A. Ezra, Chief District Judge,
Presiding*.
Argued and Submitted March 14, 2000
San Francisco, California
Filed November 20, 2000
Before: KOZINSKI, KLEINFELD and McKEOWN,
Circuit Judges.
Judge David A. Ezra presided over pretrial motions in this
case, granting the Government's Motion in Limine to
Prohibit Objection to Jurisdiction as a Matter of Law
During Trial, United States v. Corey, No. 96-01019-DAE
(D.Haw. July 7, 1997), that Corey challenges on this
appeal.
App. 2
*1169 KOZINSKL, Circuit Judge.
We consider whether the federal courts have
jurisdiction over a criminal case charging a United States
citizen with offenses committed at United States
installations abroad.
I
Clifton S. Corey, a United States citizen, lived abroad
with his family while working for the U.S. Air Force as a
civilian postmaster. From 1993 to 1996, Corey ran the post
office at the American Embassy in Manila, the Philippines,
and for several years before, he managed the office at the
U.S. Air Force Base at Yokota, Japan. In 1996, Corey's
stepdaughter, Anna, told her doctor that her stepfather
had forced her to engage in sexual intercourse with him
for the previous five years, starting when she was fifteen.
After an investigation, the government charged Corey
with aggravated sexual abuse and sexual abuse in
violation of 18 U.S.C. § 2241(a) and 2242(1).' The first trial
' Subsections 2241(a) and 2242(1) provide respectively
that:
Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal
prison, knowingly causes another person to engage
in a sexual act--
(1) by using force against that person; or
(2) by threatening or placing that other person in
fear that any person will be subjected to death,
(continued...)
ae
App. 3
ended in a hung jury but, after a second trial, Corey was
convicted on eight of eleven counts and sentenced to 262
months in prison. On appeal, he challenges the district
court's jurisdiction and also raises a variety of trial errors.
We address the jurisdictional issue in this opinion and the
remaining issues in a memorandum disposition filed
concurrently.
'(...continued) :
serious bodily injury, or kidnapping; or attempts
to do so, shall be fined under this title, imprisoned
for any term of years or life, or both....
18 U.S.C. § 2241(a).
Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal
prison, knowingly--
(1) causes another person to engage in a
sexual act by threatening or placing that
other person in fear (other than by
threatening or placing that other person in
fear that any person will be subjected to
death, serious bodily injury, or
kidnapping)[,] ...
or attempts to do so, shall be fined under this
title, imprisoned not more than 20 years, or both.
18 U.S.C. § 2242(1).
App. 4
II
Prior to trial, the district court granted the
government's motion to preclude Corey from contesting
jurisdiction.” Corey argued then, as he does now, that
crimes committed on foreign soil fall outside the reach of
18 U.S.C. §§ 2241 and 2242. Both provisions proscribe
sexual assault within the "special maritime and territorial
jurisdiction of the United States," a phrase defined by 18
U.S.C. § 7. While Corey lived in Japan, he and his family
resided on the Yokota Air Force Base. In the Philippines,
they lived at Lopez Court, a private apartment building
rented by our embassy for the use of its employees. The
government charges that the sexual abuse occurred in
each of these residences. Corey argues that neither
residence falls within the special jurisdiction of the United
States.
The "special maritime and territorial jurisdiction of the
United States" includes: |
Any lands reserved or acquired for the use of the
United States, and under the exclusive or
concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United
States by consent of the legislature of the State in
which the same shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful
building.
> The government filed this somewhat unusual motion
in order to present the jurisdictional question to the
district court prior to trial.
App. 5
18 U.S.C. § 7(3). This provision tracks its origin to 1790,
yet, at the time this case was brought, only two courts had
addressed *1170 whether it applied to lands within the
territory of a foreign nation. See United States v. Erdos, 474
F.2d 157 (4th Cir.1973); Witten v. Pitman, 613 F.Supp. 63,
65-66 (S.D.Fla.1985); see also Talbott v. United States ex rel.
Toth, 215 F.2d 22, 27 (D.C.Cir.1954), rev'd sub nom. United
States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100
L.Ed. 8 (1955). Two other courts have since ruled on the
issue. See United States v. Gatlin, 216 F.3d 207 (2d
Cir.2000); United States v. Bin Laden, 92 F.Supp.2d 189
(S.D.N.Y.2000).
We review de novo the district court's assertion of
jurisdiction. See United States v. Vasquez-Velasco, 15
F.3d 833, 838-39 (9th Cir.1994).
Il
A. Congress may enforce its laws beyond the terri-
torial boundaries of the United States. See EEOC uv.
Arabian Am. Oil Co. ("Aramco"), 499 U.S. 244, 248, 111 S.Ct.
1227, 113 L.Ed.2d 274 (1991); Vasquez-Velasco, 15 F.3d at
839 ("Generally there is no constitutional bar to the
extraterritorial application of United States penal laws."
(citations omitted)). Whether Congress has in fact
exercised such power is a question of statutory
construction, normally subject to the rule " 'that legislation
of Congress, unless a contrary intent appears, is meant to
apply only within the territorial jurisdiction of the United
States.'" Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (quoting
Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93
L.Ed. 680 (1949)); see also Sale v. Haitian Ctrs. Council, Inc.,
App. 6
509 U.S. 155, 188, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993)
("Acts of Congress normally do not have extraterritorial
application unless such an intent is clearly manifested.").
For most legislation, the presumption against
extraterritoriality makes perfect sense. First, "Congress
generally legislates with domestic concerns in mind,"
Smith v. United States, 507 U.S. 197, 204 n. 5, 113 S.Ct. 1178,
122 L.Ed.2d 548 (1993), so courts can infer from
congressional silence that the legislature meant to regulate
only activities within the nation's borders. Second, the rule
ensures that we do not precipitate "unintended clashes
between our laws and those of other nations which could
result in international discord." Aramco, 499 U.S. at 248,
111 S.Ct. 1227. The Supreme Court has invoked this
territorial presumption in numerous cases involving the
scope of broad regulatory statutes. See, e.g., Sale, 509 U.S.
at 173, 113 S.Ct. 2549 (Immigration and Nationality Act);
Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (Title VII); Filardo,
336 U.S. at 285, 69 S.Ct. 575 (federal overtime law);
American Banana Co. v. United Fruit Co., 213 U.S. 347, 357,
29 S.Ct. 511, 53 L.Ed: 826 (1909) (Sherman Act). In all of
these cases, the Court heid that Congress expected that its
regulations would end at the national borders.
| The territorial presumption is thus based on the
common-sense inference that, where Congress does not
indicate otherwise, legislation dealing with domestic
matters is not meant to extend beyond the nation's
borders. But the presumption does not apply where the
legislation implicates concerns that are not inherently
domestic. For instance, in United States v. Bowman, 260
U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922), the Supreme
Court held that the territorial presumption does not
govern the interpretation of criminal statutes that, by their
Se aR A eS Rik atid EB LN i MAO A os LR
App. 7
nature, implicate the legitimate interests of the United
States abroad. Bowman concerned fraud committed on a
U.S. vessel outside the territorial waters of the United
States. Although the statute there did not contain an
extraterritoriality provision, the Court concluded that it
covered the conduct in question. See also Vasquez- Velasco,
15 F.3d at 839 n. 4 (applying Bowman to violent crimes
associated with international drug trafficking); United
States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir.1991)
(applying Bowman to accessory after the fact to the murder
of a DEA agent in Mexico). Thus, courts do not apply the
territorial presumption where it is not a reliable guide to
congressional intent.
*1171 When Congress is considering the scope of
federal jurisdiction, its attention is focused precisely on
how far U.S. law should reach. Unlike ordinary domestic
statutes, jurisdictional statutes inherently present the
question of how far Congress wishes U.S. law to extend.
There is therefore no reason to presume that Congress did,
or did not, mean to act extraterritorially. Rather, we agree
with Bin Laden that "[W]hen presented with the task of
interpreting jurisdictional statutes such as [subsection]
7(3), courts should simply employ the standard tools of
statutory interpretation...." 92 F.Supp.2d at 206 n. 32.
Applying the territorial presumption to subsection 7(3)
would be a mistake for another reason: Land subject to
subsection 7(3) is not "extraterritorial," as the Supreme
Court has defined the term. In Aramco, the Court
described territorial jurisdiction as including "places over
which the United States has sovereignty or has some
measure of legislative control." Aramco, 499 U.S. at 248,
111 S.Ct. 1227 (internal quotation marks omitted).
Subsection 7(3) does not purport to regulate conduct
App. 8
within territory over which the United States lacks "some
measure of legislative control"; by its terms, it extends
only to areas within the concurrent or exclusive
jurisdiction of the United States. See Environmental Defense
Fund v. Massey, 986 F.2d 528, 533 (D.C.Cir.1993) ("[W]here
the U.S. has some real measure of legislative control over
the region at issue, the presumption against
extraterritoriality is much weaker."). Thus, even more
than ordinary jurisdictional statutes, subsection 7(3) is a
poor candidate for the territorial presumption.
Because foreign lands covered by subsection 7(3) are,
by definition, under the legislative control of the United
States, the second policy supporting the territorial
presumption-the desire to avoid "unintended clashes"
with foreign powers, see Aramco, 499 U.S. at 248, 111 S.Ct.
1227--is also inapplicable. Legislative jurisdiction over the
territory of a foreign power can only be acquired through
that nation's consent--or by conquest. See, e.g., In re Ross,
140 U.S. 453, 464, 11 S.Ct. 897, 35 L.Ed. 581 (1891) ("When
... the representatives or officers of our government are
permitted to exercise authority of any kind in another
country, it must be on such conditions as the two countries
may agree...."). Either way, subsection 7(3) will apply
only where the foreign sovereign does not or cannot object
to the exercise of such jurisdiction. This case illustrates the
point: Neither the Philippines nor Japan has protested the
assertion of jurisdiction over Corey. Quite the contrary,
both countries have abjured any interest in prosecuting
Corey, no doubt recognizing that the case involves
internal U.S. matters.
But, even if the presumption were applicable, the text
of section 7 would clearly rebut it. The language and
structure of the statute reflect a legislative purpose to
< ocean temic santa, eal
App. 9
reach places that lie well beyond U.S. borders. The special
maritime and territorial jurisdiction of the United States
extends by definition beyond ordinary land and seas.
Taken as a whole, 18 U.S.C. § 7 extends the jurisdiction of
the federal criminal laws to areas where American citizens
and property need protection, yet no other government
effectively safeguards those interests. Congress
unmistakably had foreign locales in mind when it set
about defining that jurisdiction. Put subsection 7(3) aside
for the moment. Every other subsection mentions spaces
outside the fifty states. Section 7 reaches vessels sailing on
the high seas, subsection 7(1), or on international
waterways, subsection 7(2); islands prized for their rich
bird droppings, subsection 7(4); airplanes flying the
friendly skies, subsection 7(5); NASA spaceships
rocketing towards Mars, subsection 7(6); Antarctica,
subsection 7(7); and foreign ships coming to America,
subsection 7(8). Section 7 as a whole extends the
jurisdiction of the United States to the ends of the earth
(and beyond). We construe subsection 7(3) against the
extraterritorial backdrop of its neighbors.
*1172 The history of the statute, discussed below, see
pp. 1173-76 infra, confirms that Congress intended
precisely this interpretation. We conclude therefore that
subsection 7(3) applies to Americans in all territory,
wherever situated, that is acquired for the use of the
United States and under the exclusive or concurrent
jurisdiction of the federal government. .
B. Our conclusion that subsection 7(3) applies to
territory outside the borders of the fifty states agrees with
that of the Fourth Circuit. See United States v. Erdos, 474
F.2d 157 (4th Cir.1973) (holding that subsection 7(3) grants
App. 10 ‘
territorial jurisdiction over the American embassy in
Equatorial Guinea). Two circuits in addition to our own
have previously repeated Erdos's holding, albeit in dicta.
See Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326,
1342 (2d Cir.1992) (noting that section 7 would permit U.S.
criminal jurisdiction over the commission of crimes at
Guantanamo Bay), vacated on other grounds sub nom., Sale,
509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716; Persinger v.
Islamic Republic of Iran, 729 F.2d 835, 841- 42 & n. 11
(D.C.Cir.1984) (recognizing but distinguishing Erdos);
McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588-89 (9th
Cir.1983) (same); see also Agee v. Muskie, 629 F.2d 80, 111
(D.C.Cir.1980) (MacKinnon, J., dissenting) (relying on
Erdos and finding that "[b]y virtue of [subsection 7(3)] the
United States Embassy in Tehran, Iran is within the
‘special’ territorial jurisdiction of the United States"), rev'd
on other grounds sub. nom, Haig v. Agee, 453 U.S. 280, 101
S.Ct. 2766, 69 L.Ed.2d 640 (1981).
Recently, however, in a case almost identical to ours,
the Second Circuit held that subsection 7(3) applies only
to lands acquired within the territorial borders of the
United States. See United States v. Gatlin, 216 F.3d 207 (2d
Cir.2000). The defendant in Gatlin, an American civilian
on a military base in Germany, impregnated his tnirteen-
year-old stepdaughter while his wife was on duty in
Bosnia. Federal prosecutors charged Gatlin with engaging
in sexual acts with a minor within the special territorial
jurisdiction of the United States. The district court ruled
it had jurisdiction and accepted Gatlin's conditional guilty
plea. On appeal, the Second Circuit concluded that the
territorial presumption, fortified by a reading of
App. 11
legislative history, prevented subsection 7(3) from
applying abroad. ;
We are not persuaded by the Second Circuit's
reasoning. Gatlin examined subsection 7(3)'s statutory
predecessors and concluded that Congress drafted the
provision without any inkling that it would be applied
extraterritorially.» The court emphasized that earlier
* Gatlin also found that Congress's failure to fill the
supposed "jurisdictional gap" over civilians on military
bases confirmed a legislative belief in the existence of that
jurisdictional gap. See Gatlin, 216 F.3d at 209, 221-22 & n.
23. We doubt whether the beliefs of subsequent
legislatures have any bearing upon the interpretation of a
statute already on the books. But since the only circuit to
consider the issue concluded that jurisdiction exists,
legislative inaction over the twenty-seven years since
Erdos would suggest, if anything, congressional
acquiescence in the Fourth Circuit's decision.
The dissent makes much of the fact that Congress
responded to Gatlin by enacting a bill to remove any
doubt over American jurisdiction. See Dissent at 1197
(citing Military Extraterritorial Jurisdiction Act of 2000, S.
768, 106th Cong. (2000)). But if this gap has existed for
decades, as the dissent purports, then why did Congress
close it only now? The answer, of course, is that so long
as the gap only existed in law reviews, Congress had no
need to resolve the ambiguity. But Gatlin's novel
interpretation of subsection 7(3) prodded Congress to
remove the circuit split. In any event, we fail to see how
recent legislative action can help us interpret a law that
(continued...)
App. 12
versions of subsection 7(3), enacted in 1790 and 1909,
criminalized acts within the "exclusive" jurisdiction of the
United States. See Act of March 4, 1909, ch. 321, § 272, 35
Stat. 1088 (defining territorial jurisdiction to include
territory within the "exclusive jurisdiction" of the United
States); Act of April 30, 1790, ch. 9, § 3, 1 Stat. 112
(proscribing crimes *1173 within the "sole and exclusive
jurisdiction" of the United States). Because the United
States had exclusive jurisdiction only over domestic
territory, Gatlin reasoned Congress could not have
intended the laws to apply abroad. See Gatlin, 216 F.3d at
218 ("[T]he limitation of jurisdiction to lands over which
the United States exercises ‘exclusive’ jurisdiction again
makes plain that [the 1909 statute] did not mean to refer to
land in foreign territory."); id. at 216-17 ("The notion that
the United States could exercise exclusive legislative
jurisdiction over lands in a foreign nation" was "virtually
inconceivable in 1790.").
Nor, said Gatlin, did Congress intend to apply the
statute extraterritorially in 1940, when it expanded its
coverage to areas within the concurrent jurisdiction of the
United States. See Act of June 11, 1940, ch. 323, 54 Stat.
304. "[W]hat little legislative history there is of the 1940
Act," Gatlin, 216 F.3d at 219, suggested to Gatlin that
Congress added concurrent jurisdiction only to expand
the reach of federal law to domestic highways, national
parks and other areas where the federal and state
governments exercised concurrent jurisdiction. See id.
5(.. continued) ;
has been on the books in one form or another since 1790.
FEI etn A READ ech llin ED on WRLC ASL td ZR A SAIS Ag DY Se CY “48 YR wll Waka Ld AIS
App. 13
(citing H.R.Rep. No. 76-1623, at 2 (1940); S.Rep. No. 76-
1708, at 1 (1940)). Gatlin's investigation of the legislative
history behind these three acts uncovered no evidence that
Congress intended subsection 7(3) to apply to lands
located beyond the borders of the various states.
The linchpin of Gatlin's analysis was its assumption
that it would have been "virtually inconceivable" for
Congress in the eighteenth and nineteenth centuries to
speak of the United States having exclusive jurisdiction
outside the country's territorial limits. Gatlin, 216 F.3d at
217.4 Therefore, when Congress used "exclusive
jurisdiction" in subsection 7(3), the term could only have
referred to territory the United States acquired from the
states. But nineteenth century Americans were hardly so
parochial. While they may have believed that, so long as
territory remained unequivocally foreign, it lay outside
the jurisdiction of the United States, they were well aware
that territory could change hands, and the United States
could gain exclusive jurisdiction over territory that other
countries claimed as their own. See Jones v. United States,
137 U.S. 202, 212, 11 S.Ct. 80, 34 L.Ed. 691 (1890) ("By the
law of nations, recognized by all civilized States,
* Gatlin's skepticism presumably extended only to
jurisdiction over foreign territory. Nations have long
enjoyed the right to exercise jurisdiction over acts
committed outside of their own territory by their
nationals. See Henry Wheaton, Elements of International
Law, § 113 (James Brown Scott ed., Clarendon Press 1936)
(Richard H. Dana, Jr. ed., 8th ed. 1866) (recognizing that
the state's judicial power extended to the punishment of
offenses "by its subjects, wheresoever committed").
App. 14
dominion of new territory may be acquired by discovery
and occupation, as well as by cession or conquest...."); Late
Corporation of the Church of Jesus Christ of Latter-Day Saints
v. United States, 136 U.S. 1, 42, 10 S.Ct. 792, 34 L.Ed. 478
(1890) ("The power to make acquisitions of territory by
conquest, by treaty and by cession is an incident of
national sovereignty."); American Ins. Co. v. 365 Bales of
Cotton, 26 U.S. (1 Pet.) 511, 540, 7 L.Ed. 242 (1828) ("[The]
government possesses the power of acquiring territory,
either by conquest or by treaty."). Over the course of the
nineteenth century, the United States purchased Louisiana
from France; won Florida from Spain; defeated
numerous Indian nations; annexed the Republic of Texas;
divided Oregon with the British; conquered Mexico's
California possessions; purchased Alaska from Russia;
and annexed Hawaii. This was clearly not a time when
Americans thought of their borders as static or of foreign
territory as sacrosanct.
The original 1790 Act provided basic criminal laws for
lands outside the jurisdiction of any other sovereign. See,
e.g., Watts v. United States, 1 Wash. Terr. 288, 297-98, 1870
WL 2118 (Wash.1870) ("The intent seems ... to have been
to prevent *1174 that detestable crime [murder] from
finding harbor and impunity in places where no other law
than that of the United States could reach to punish.").
The act criminalized murder, larceny and other crimes
committed "within any fort, arsenal, dock-yard, magazine,
or in any other place or district of country, under the sole
and exclusive jurisdiction of the United States." 1790 Act,
1 Stat. at 113. That provision applied not only to the
various federal facilities enumerated, but also to "any
other place or district of country" not subject to an
alternate system of laws. Id.
App. 15
As the United States acquired new Possessions,
Congress extended federal criminal jurisdiction with the
boundaries of the young republic. Special provisions of
the organic acts of Louisiana and Florida applied the 1790
Act to land not subject to the territorial governments in
those territories. See An Act for the Establishment of a
Territorial Government in Florida, ch. 13, § 9, 3. Stat. 654
(1822); An Act Erecting Louisiana into Two Territories,
ch. 38, § 7, 2 Stat. 283 (1804). In 1817, Congress provided
that U.S. territory remaining under Indian control
nevertheless lay within the "sole and exclusive" criminal
jurisdiction of the United States. See An Act to Provide for
the Punishment of Crimes and Offences Committed
Within the Indian Boundaries, ch. 92, § 1, 3 Stat. 383
(1817). The Indian Intercourse Act subsequently defined
such territory to include all of the Louisiana territory
except the states of Missouri, Louisiana and the territory
of Arkansas. See An Act to Regulate Trade and
Intercourse with the Indian Tribes and to Preserve Peace’
on the Frontiers, ch. 161, § 1, 4 Stat. 729 (1834). As the
United States expanded across the continent, the Supreme
Court extended that "sole and exclusive" jurisdiction to all
the unsettled territories in the American west. See Ex parte
Crow Dog, 109 U.S. 556, 560-62, 3 S.Ct. 396, 27 L.Ed. 1030
(1883) (holding that "Indian country" included all land in
the United States not organized into states or self-
governing territories and that the Dakota territory lay
within U.S. jurisdiction); see also Cook v. United States, 138
U.S. 157, 180, 11 S.Ct. 268, 34 L.Ed. 906 (1891) (holding
that the Public Land Strip, now the Oklahoma panhandle,
lay within federal criminal jurisdiction). Thus, in the
nineteenth century, the special territorial jurisdiction of
App. 16
the United States included vast expanses of territory lying
beyond the boundaries of the states.
Congress's regulation of the Indian territory
demonstrates the error in presuming that nineteenth-
century Americans believed territorial jurisdiction was an
all-or-nothing concept. Although the Indian territory was
part of the United States, the federal government
respected the Indian tribes' political claims over the lands
within their possession. See, e.g., Cherokee Nation v.
Georgia, 30 U.S. (5 Pet.) 1, 16-17, 8 L.Ed. 25 (1831)
(describing the tribes as "domestic dependent nations" that
had an "unquestionable" right to lands within their
possession yet whose territory was nonetheless under the
sovereignty of the United States). Congress recognized
this concurrent jurisdiction by exempting from federal
criminal jurisdiction crimes committed "by one Indian
against the person or property of another Indian," leaving
such crimes within the tribes' exclusive jurisdiction.
Indian Intercourse Act, § 25, 4 Stat. at 733. This shared.
jurisdictional scheme accommodated the needs of the
concurrent authorities over the Indian territory,
resembling in some respects the agreements worked out
by the United States with the host countries in this case.
See pp. 1181-83 infra.
In extending the reach of United States jurisdiction,
Congress did not stop with the continental possessions of
the nation. The Guano Islands Act of 1856 asserted
criminal jurisdiction over islands claimed by Americans
for their guano deposits. See An Act to Authorize
Protection to Be Given to Citizens of the United States
Who May Discover Deposits of Guano, ch. 164, § 6, 11 Stat.
119, 120 (1856). The act gave the President the discretion
to claim faraway islands as U.S. territory, see id. § 1, 11
App. 17 -
Stat. at 119, and then granted federal *1175 courts criminal
jurisdiction over the islands to the full extent of their
jurisdiction over crimes committed on the high seas. See
id. § 6, 11 Stat. at 120. When the United States claimed
territory far beyond its borders, Congress promptly
extended federal jurisdiction to those areas under U.S.
control.
Contrary to Gatlin's suggestion, the United States at
times did assert criminal jurisdiction over territories
claimed by another sovereign. In Jones, 137 U.S. at 212, 11
S.Ct. 80, the defendant sought to evade prosecution by
claiming that a murder on the guano island of Navassa
was noi under U.S. jurisdiction, because the island was
claimed by the government of Haiti. Likewise, in Watts,
1 Wash. Terr. 288, the defendant claimed that San Juan
Island, off the coast of Washington, was not within the
"sole and exclusive jurisdiction of the United States,"
because Great Britain claimed title to the land as well. In
both cases, the courts rejected the jurisdictional challenge
on the ground that questions of sovereignty were the
province of the other branches of government. See Jones,
137 USS. at 212, 11 S.Ct. 80 ("Who is the sovereign, de jure
or de facto, of a territory, is not a judicial, but a political,
question, the determination of which by [the political
branches] conclusively binds the judges...."); Watts, 1
Wash. Terr. at 296 ("Since ... the United States claims San
Juan Island, we must treat it as under the general laws of
the United States...."). Courts had no hesitation about
treating these territories as within our exclusive
jurisdiction, even though foreign governments claimed the
territory as their own.
App. 18
When in 1909, Congress placed these various
jurisdictional provisions within a single statute, it
understood criminal jurisdiction to extend to all lands
claimed by the United States, without regard to whether
they were within a particular state or even within the
continental. United States. Congress declined .to assert
jurisdiction over territories subject to the more
comprehensive criminal codes of the states or self-
governing territories. But it showed no intent to limit
jurisdiction on the basis of geography alone. We see no
reason then to presume that when, in 1940, Congress
extended criminal jurisdiction to those lands under the
concurrent authority of the United States, it intended to
limit the reach of subsection 7(3) to areas under the
concurrent authority of the states, but not those under the
concurrent authority of other sovereigns.
Although Gatlin purported to rely on the legislative
history of subsection 7(3), there is, in fact, very little in the
legislative record that speaks to the question presented to
us. Gatlin rather, relies on its reading of the historical
record, its understanding of what the legislators must
have assumed when they used particular words and
phrases. We believe that Gatlin reached the wrong
conclusion by failing to take into account our nation's
history of rapid territorial expansion during the late
eighteenth and nineteenth centuries. Gatlin also erred, in
our view, by considering subsection 7(3) in isolation from
its neighboring subsections because the court believed
"most subsections of § 7 were enacted separately by
Congress and have their own legislative histories." Gatlin,
216 F.3d at 216 n. 11.
But what history shows is that Congress never
understood the provisions of section 7 to be separate
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App. 19
fragments of jurisdiction. Indeed, when Congress
extended federal criminal jurisdiction, it did so by
reference. The Indian Intercourse Act criminalized actions
in Indian territory that would be crimes if "committed
within any place or district of country within the sole and
exclusive jurisdiction of the United States." Indian
Intercourse Act, § 25, 4 Stat. at 733. Likewise, the Guano
Islands Act provided that crimes on the guano islands
would be "punished according to the laws of the United
States relating to such ships or vessels and offences on the
high seas." Guano Islands Act, § 6, 11 Stat. at 120. This
history demonstrates that Congress understood these
discrete statutes as extensions of the fundamental
principle articulated *1176 in the 1790 Act: The federal
government had an obligation to provide basic criminal
laws for territory over which it had control.
Gatlin holds that if Congress wanted to extend the
jurisdiction of the federal courts beyond the borders of the
collective states, it had to express its intent in each relevant
subsection. See Gatlin, 216 F.3d at 216 n. 11 ("[S]ubsections
like § 7(7) confirm that Congress knows how to legislate
extraterritorially when it so desires."). We see no reason
to impose such a burden on Congress. The Supreme
Court found that Congress rebuts the territorial
presumption simply by demonstrating that it drafted the
Statute with extraterritorial concerns in mind. See Foley
Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680
-(1949) (presumption overcome when Congress
demonstrates an "intention other than the normal one").
The Second Circuit would require Congress to engage in
the pointless exercise of repeating its designs throughout
every subsection of a section clearly devoted to extending
App. 20
the reach of U.S. law to all places under the dominion of
the United States.
And to what end? The Second Circuit was concerned
that applying our law to U.S. possessions abroad might
invite the "unintended clashes between our laws and those
of other nations" that the territorial presumption helps
avoid. Gatlin, 216 F.3d at 216 n. 11 (quoting EEOC v.
Arabian Am. Oil Co. ("Aramco"), 499 U.S. 244, 248, 111 S.Ct.
1227, 113 L.Ed.2d 274 (1991)). But the Constitution leaves
it to the political branches, not the courts, to determine the
territory over which the United States enjoys legislative
jurisdiction. See, e.g., First Nat'l City Bank v. Banco Nacional
de Cuba, 406 U.S. 759, 766, 92 S.Ct. 1808, 32 L.Ed.2d 466
(1972) (noting that the political branches and not the
judiciary determine whether the United States exercises
sovereignty over territory); Jones, 137 U.S. at 212, 11 S.Ct.
80 (same). "The President is the sole organ of the nation in
its external relations, and its sole representative with
foreign nations." United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 81 L.Ed. 255 (1936)
(internal quotation marks omitted). By bringing this
action against Corey, the Executive has asserted U.S.
jurisdiction over Americans in the foreign territories
under U.S. control; any objections from foreign
governments will be directed to our State Department,
which will then decide whether our national interest is
served by persisting. It is not our province to second-guess
this decision.
Thus, construing subsection 7(3) as applying only to
federal lands within the United States serves neither
congressional intent nor American foreign policy. All it
App. 21
does is hand a get-out-of-jail-free card to American
civilians who violate U.S. law while stationed abroad.°
IV
We next consider whether the areas in this case--the
Yokota Air Force Base and Lopez Court-~are lands
"reserved or acquired for the use of the United States" and
"under the exclusive or concurrent jurisdiction thereof" for
purposes of 18 U.S.C. § 7(3).
A. "Reserved or Acquired for the Use of the United
States"
The meaning of "reserved or acquired for the use of the
United States" is plain enough. Courts have demonstrated
their faith in the words' clarity by skipping over them
without explication. See United States v. Blunt, 558 F.2d
1245, 1246 (6th Cir.1977); United States v. Erdos, 474 F.2d
157, 159 (4th Cir.1973); *1177United States v. Bin Laden, 92
F.Supp.2d 189, 204- 06 (S.D.N.Y.2000); Witten v. Pitman,
* The Gatlin panel recognized as much when it took
the unusual step of sending a copy of its opinion to the
relevant House and Senate committees with the implicit
message that Congress ought to correct the problem
legislatively. See Gatlin, 216 F.3d at 223. Gatlin thus
acknowledged that there is no real conflict between U.S.
and foreign law when the United States prosecutes a U.S.
citizen--who is a government employee—for crimes
against a U.S. national on territory under the dominion of
the United States.
App. 22
613 F.Supp. 63, 65-66 (S.D.Fla.1985). Before we do the
same, we note that these words do not explicitly refer to
any particular estate in the land in question. See Blunt, 558
F.2d at 1246-47 (finding subsection 7(3) to apply to a
federal prison without regard to whether the United States
had title to the land). There is no requirement that the
United States be an owner, or even an occupant, so long as
the land has been set aside for the use of an
instrumentality of the federal government.
By this standard, there is not much question that the
Yokota Air Force Base has been acquired for the use of the
United States. The United States first occupied the
territory upon which the base is located following Japan's
surrender in World War IL In negotiating Japan's return
to self-government, the Japanese government agreed that
the United States would retain control over certain areas
of the country, including the territory on which the base
is located. See Preliminary Working Group Under the
Exchange of Notes Between the Governments of the
United States and Japan on 28 February 1952, Minutes of
the Eighth Meeting, at 20 (Apr. 3, 1952). For almost half a
century, the United States has used the Japanese land in
question in the same manner as it uses American land on
which are located domestic military installations.
Likewise, the United States has acquired Lopez Court
for its own use. The State Department leased the
apartment building from a private landlord for the
purpose of housing our embassy personnel. See Lease No.
723574, Gov't Ex. 5, United States v. Corey, No. 96-01019-
DAE (June 23, 1997); Lease No. S-314-FBO-136, Gov't Ex.
6, Corey, No. 96-01019-DAE. The government furnishes
and maintains the apartments, and the lease runs without
regard to the residence of a particular employee. See
App. 23
Transcript of Testimony of Judith A. Senykoff, Housing
Officer at the U.S. Embassy in Manila, Corey, No. 96-01019-
DAE, at 42. In addition to signing the lease, the
government pays rent and utilities, and provides security
for the buildings. See id. at 40. Lopez Court was not
Corey's private residence; it was an apartment acquired
by the State Department for governmental use.°
Thus, both the Yokota Air Force Base and Lopez Court
are lands "reserved or acquired for the use of the United
States" within the meaning of subsection 7(3).
B. "Exclusive or Concurrent Jurisdiction"
We next consider whether the United States exercises
"exclusive or concurrent" jurisdiction over the Air Force
Base and Lopez Court. The jurisdiction in question is not
that of the federal courts. If it were, subsection 7(3) would
be trivial, if not tautological, defining a subset of territory
over which the courts already had jurisdiction. The
provision instead refers to “legislative jurisdiction," see
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813, 113
S.Ct. 2891, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting);
Aramco, 499 U.S. at 253, 111 S.Ct. 1227, or what
° The dissent presumes that section 7(3) would extend
federal criminal jurisdiction to all property leased by the
United States abroad. See Dissent at 1195. But section 7(3)
also requires that the property be within the exclusive or
concurrent jurisdiction of the federal government. Section
7(3) will not apply to all leased properties, but only to
those properties over which the United States has
obtained legislative jurisdiction by treaty or otherwise.
App. 24
international lawyers understand as the "jurisdiction to
prescribe." Restatement (Third) of the Foreign Relations Law
of the United States § 401 (1987). This legislative
jurisdiction, as defined by the Restatement, is the state's
authority "to make its law applicable to the activities,
relations, or status of persons." Id.; see also Myres S.
McDougal & W. Michael Reisman, International Law in
Contemporary Perspective 1273 (1981) ("The initial assertion
of a competence to prescribe is the claim to project policies
regulating actors *1178 or activities that is manifested
either in legislative enactments or in prescriptions
developed as customary law."). Thus, subsection 7(3)
grants the courts jurisdiction over those territories over
which the government enjoys regulatory authority.
This definition under international law conforms with
the Fourth Circuit's interpretation of subsection 7(3). Erdos
described this standard as one of the "practical usage and
dominion" enjoyed by the United States over "the embassy
or other federal establishment." Erdos, 474 F.2d at 159.
Under this test, the court considers whether the United
States enjoys such control over the area that the law
should constructively regard it as United States territory.
Erdos found this standard met by United States dominion
over the embassy territory in Equatorial Guinea.
Likewise, the Sixth Circuit adopted this test in finding
jurisdiction under subsection 7(3) over a federal prison in
Kentucky. See Blunt, 558 F.2d at 1246-47 (rejecting the
defendant's claim that the United States must establish
chain of title in order to place the land within the special
territorial jurisdiction of 7(3)). This "practical dominion"
standard reflects the appropriate test for determining
United States jurisdiction under subsection 7(3).
App. 25
Under subsection 7(3), U.S. territorial jurisdiction need
not be exclusive. We have recognized that embassy
property "remains the territory of the receiving state, and
does not constitute territory of the United States." McKeel
v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir.1983).’
" McKeel continued: "Thus, United States embassies
are not within the territorial jurisdiction of the United
States." McKeel, 722 F.2d at 588 (citing Meredith.v. United
States, 330 F.2d 9, 10-11 (9th Cir.1964)). That observation
should not be understood as holding that the embassy lies
outside the concurrent jurisdiction of the United States
under subsection 7(3). The question before McKeel was
whether torts committed at the embassy, namely Iran's
seizure of U.S. embassy personnel, "occurr [ed] in the
United States" for the purposes of the Foreign Sovereign
Immunities Act (FSIA). Id. at 587. Thus, the issue was
really whether the embassy was under the exclusive
territorial jurisdiction of the United States. :
Mckeel concluded that torts committed onem bassy
property were not torts "occurring in the United States,"
but nonetheless accepted that "United States embassies
are subject to the jurisdiction of the United States for
certain purposes." Id. at 587-88. McKeel's reliance on
Meredith supports this reading of McKeel, since Meredith
held only that embassy property lay within the territory
of the foreign country. See Meredith, 330 F.2d at 10-11 (U.S.
embassy in Thailand is "in a foreign country" for
purposes of the Federal Tort Claims Act). Likewise, this
understanding is the only one consistent with the
Supreme Court's subsequent recognition in Aramco that
(continued...)
ee
App. 26
Likewise, the Status of Forces Agreement preserves
Japan's jurisdiction over the Yokota Air Force Base; even
though used by the United States for its purposes, the land
on which the base is located continues to be part of Japan.
See Agreement Under Article VI of the Treaty of Mutual
Cooperation and Security Between the United States of
America and Japan, Regarding Facilities and Areas and
the Status of United States Armed Forces in Japan (SOFA),
art. II, Jan. 19, 1960, 11 U.S.T. 1652. But acknowledging
the claims of the foreign government does not determine
whether the United States exercises concurrent jurisdiction
over that territory--particularly with regard to the actions
of its own citizens.
Bin Laden concluded that concurrent territorial
jurisdiction over embassy property would violate
international law. See Bin Laden, 92 F.Supp.2d at 213-14.
Bin Laden ruled that embassy property fell outside the
United States's special jurisdiction, and so dismissed a
murder charge against the terrorists who bombed the
American embassies in Kenya and Tanzania.’ Federal
7(...continued)
US. territorial jurisdiction includes "places over which
the United States has sovereignty or has some measure of
legislative control." Aramco, 499 U.S. at 248, 111 S.Ct. 1227
(emphasis added).
® Bin Laden did hold that the terrorists might be
prosecuted for other crimes that it found fell within the
Bowman exception, including bombing United States
(continued...)
App. 27
i courts have long recognized *1179 that " ‘an act of
congress ought never to be construed to violate the law of
nations, if any other possible construction remains.' "
McCulloch v. Sociedad Nacional de Marineros de Honduras,
372 U.S. 10, 21, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) (quoting
‘ Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch)
64, 2 L.Ed. 208 (1804) (Marshall, C.J.)). If it were true that
concurrent territorial jurisdiction violated international
law, then we would arguably have to conclude that
subsection 7(3) did not apply to the lands at issue in this
case.”
Spal ks SG
‘(...continued)
property under 18 U.S.C. § 844(f)(1); killing in connection
with the destruction of such property under 18 U.S.C. §
844(f)(3); and killing a federal officer in the line of duty
under 18 U.S.C. § 1114. See Bin Laden, 92 F.Supp.2d at
198-204.
” We use "arguably" deliberately. Even if concurrent
territorial jurisdiction were not permissible under
international law, the Charming Betsy principle would
probably not apply for two independent reasons. First,
the Supreme Court has never invoked Charming Betsy
against the United States in a suit in which it was a party.
Charming Betsy itself concerned a private dispute where
the Court had to determine whether the ship could be
seized for violating the American embargo against
France. Faced with the choice, the Court interpreted the
relevant statute so as to avoid embroiling the nation in a
(continued...)
App. 28
4(...continued)
foreign policy dispute unforeseen by either the President
or Congress. See Charming Betsy, 6 U.S. at 118. These
concerns are obviously much less serious where the
interpretation arguably violating international law is
urged upon us by the Executive Branch of our
government. When construing a statute with potential
foreign policy implications, we must presume that the
President has evaluated the foreign policy consequences
of such an exercise of U.S. law and determined that it
serves the interests of the United States. See p. 1176 supra.
Charming Betsy is likely inapplicable in this case for
a second, separate reason: There is no doubt that the
United States may exercise jurisdiction over American
nationals living abroad, regardless of where the crime is
committed. See Blackmer v. United States, 284 U.S. 421, 437
n. 2,52 S.Ct. 252, 76 L.Ed. 375 (1932) ("The law of Nations
does not prevent a State from exercising jurisdiction over
its subjects traveling or residing abroad, since they
remain under its personai supremacy." (internal
quotations marks omitted)); Laker Airways Ltd. v. Sabena,
Belgian World Airlines, 731 F.2d 909, 922 (D.C.Cir.1984).
Thus, interpreting subsection 7(3) to include jurisdiction
over Corey would not violate international law. To be
sure, questions might arise if the same interpretation of
subsection 7(3) authorized the government to prosecute a
foreign citizen in a subsequent case, but we can presume
that the Executive Branch would not precipitate an
international conflict by bringing such a prosecution.
Even if it did, the courts could avoid the conflict by
(continued...)
App. 29
But the Charming Betsy rule does not apply because
there is no conflict with international law to avoid.
Concurrent jurisdiction is well-recognized in international
law. See Laker Airways Ltd. v. Sabena, Belgian World Airlines,
731 F.2d 909, 922 (D.C.Cir.1984) (stating that "two or more
- States may have legitimate interests in prescribing
governing law over a particular controversy");
Restatement, supra, §§ 402-03. We have recognized that
"[t]he law of nations permits the exercise of criminal
jurisdiction by a nation under five general principles:
territorial, national, protective, universality, and passive
personality." United States v. Felix-Gutierrez, 940 F.2d 1200,
1205 (9th Cir.1991). These distinct fonts of power often
leave two nations with concurrent authority over a
particular controversy, and American courts have on
numerous occasions managed conflicts arising when two
nations had authority over the same issue. See, e.g., Romero
v. International Terminal Operating Co., 358 U.S. 354, 381-83,
*(...continued)
construing the subsection with reference to the principle
that "statutes should not be interpreted to regulate foreign
persons or conduct if that regulation would conflict with
principles of international law." Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 815, 113 S.Ct. 2891, 125 L.Ed.2d
612 (Scalia, J., dissenting); see also Romero v. International
Terminal Operating Co., 358 U.S. 354, 381-84, 79 S.Ct. 468,
3 L.Ed.2d 368 (1959) (interpreting the Jones Act not to
apply to a tort committed against a Spanish sailor on
Spanish vessel in American territorial waters).
App. 30
79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (Spanish seaman on
Spanish ship injured in U.S. waters); Lauritzen v. Larsen,
345 U.S. 571, 577-83, 73 S.Ct. 921, 97 L.Ed. 1254 (1953)
(Danish seaman on Danish ship injured *1180 in Cuban
waters); Sabena, 731 F.2d at 921-22 (antitrust case litigated
in both American and English courts); Timberlane Lumber
Co. v. Bank of America, N.T. & S.A., 549 F.2d 597, 614 (9th
Cir.1976) (antitrust violation in Honduras with effects in
the United States). Thus, concurrent jurisdiction as such
raises no eyebrows among international lawyers.
Bin Laden theorized that concurrent jurisdiction, by
which it meant concurrent territorial jurisdiction, was
inconsistent with the very notion of sovereignty. See Bin
Laden, 92 F.Supp.2d at 213-14. But the American
experience belies the notion that the atom of sovereignty
cannot be split. See U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)
(Kennedy, J., concurring). There is no question that
domestic lands may fall under the concurrent jurisdiction
of the state and federal governments. See North Dakota v.
United States, 495 U.S. 423, 429 n. 2, 110 S.Ct. 1986, 109
L.Ed.2d 420 (1990) ("A territory under concurrent
jurisdiction is generally subject to the plenary authority of
both the Federal Government and the State....").
Bin Laden suggested that concurrent territorial
jurisdiction was only possible in the United States because
the individual states were not "independent sovereign
nations, but rather political sub-units of the United States."
Bin Laden, 92 F. Supp.2d at 214. Although the states are not
independent nations, they are hardly "political sub-units"
of the federal government. See, e.g., Alden v. Maine, 527
U.S. 706, 119 S.Ct. 2240, 2247, 144 L.Ed.2d 636 (1999) (The
App. 31
states retain "the dignity and essential attributes inhering"
in sovereignty.); Seminole Tribe v. Florida, 517 U.S. 44,71 n.
15, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("The
Constitution specifically recognizes the States as sovereign
entities."); The Federalist No. 39, at 245 (James Madison)
(Clinton Rossiter ed., 1961) (The States "form distinct and
independent portions of the supremacy, no more subject,
within their respective spheres, to the general authority
than the general authority is subject to them, within its
own sphere.").
Two sovereignties may exercise concurrentjurisdiction
when their relationship is regulated by law. In the United
States, the Constitution permits the state and federal
governments to exercise concurrent jurisdiction without
undue interference. While the Supremacy Clause
normally resolves any conflict in favor of the federal
government, that is not always the case. See, e.g., Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145
L.Ed.2d 522 (2000). What matters is not whose law
trumps in particular situations but that there is a law-
driven means for resolving any conflict.
The principle applies no less in the international
domain. Independent nations cede their exclusive control
over their territory through treaties, and the terms of those
agreements govern thatconcurrent authority. See Vermilya-
Brown Co. v. Connell, 335 U.S. 377, 381-83, 69 S.Ct. 140, 93
L.Ed. 76 (1948) (recognizing that the United States may
exercise jurisdiction over land placed under its control by
treaty even though the territory remains part of the United
Kingdom); In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 35
_ L.Ed. 581 (1891) ("When ... the representatives or officers
of our government are permitted to exercise authority of
any kind in another country, it must be on such conditions
App. 32
as the two countries may agree...."); Schooner Exchange v.
M'Faddon, 7 Cranch 116, 11 U.S. 116, 136, 3 L.Ed. 287
(1812) (finding a nation's jurisdiction "susceptible of no
limitation, not imposed by itself' (emphasis added)); Letter
from Secretary of State Thomas Jefferson to U.S. Minister
to France Gouverneur Morris (Aug. 16, 1793), reprinted in
1 American State Papers: Foreign Relations 167, 169 (Walter
Lowrie & Matthew St. Clair Clarke eds., 1832) ("If [a
nation] cedes any portion of that jurisdiction to judges
appointed by another nation, the limits of their power
must depend on the instrument of cession.").
*1181 The SOFA with Japan and the Vienna Conven-
tion on Diplomatic Relations delimit the respective
spheres of jurisdiction over the territory reserved for the
use of American soldiers and diplomats. See SOFA, supra,
arts. Ill, XVII; Vienna Convention on Diplomatic
Relations, Apr. 18, 1961, arts. 22, 30-31, 23 U.S.T. 3227, 500
U.N.T.S. 95. The Vienna Convention severely constrains
the Philippine government's jurisdiction over U.S.
embassy territory, just as the SOFA limits the Japanese
government's control over the Air Force Base. In turn,
these treaties grant the United States the power--and the
responsibility--to regulate affairs on those territories.
Indeed, the treaties leave the United States with
substantially greater authority to regulate conduct than
the host country. For us to decline jurisdiction in this case
would upset the jurisdictional balance established by
these treaties."
'° The dissent reads Reid v. Covert, 354 U.S. 1, 77 S.Ct.
1222, 1 L.Ed.2d 1148 (1957), and Kinsella v. United States ex
(continued...)
App. 33
'°(.. .continued)
rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268
(1960), as suggesting that the Supreme Court "was aware
of the jurisdictional gap issue." See Dissent at 1196. But
neither case says anything of the sort. Reid and Kinsella
held that non-Article III military tribunais could not
exercise jurisdiction over non-military personnel in
criminal cases. See Reid, 354 U.S. at 5, 77 S.Ct. 1222;
Kinsella, 361 U.S. at 249, 80 S.Ct. 297. The Court did not
consider subsection 7(3) in either of these cases, and so
they can't fairly be read as expressing any view as to
whether this subsection did or did not extend the judicial
power of the United States to acts committed abroad.
The dissent quotes selectively from these cases but,
when read in context, the statements have little to do with
our case. See Dissent at 1196. Two of the quotes reason
from the litigating positions of government lawyers. See
Reid, 354 U.S. at 48, 77 S.Ct. 1222 (Frankfurter, | *
concurring in result) ("A further argument is made that a
decision adverse to the Government would mean that
only a foreign trial could be had. Even assuming that the
NATO Status of Forces Agreement... gives jurisdiction to
the United States only through its military authorities....");
Kinsella, 361 U.S. at 245, 80 S.Ct. 297 ("At argument, the
Government indicated that there had been no effort in the
Congress to make any provision for the prosecution of
such cases either in continental United States or in foreign
lands.").
Likewise, two of the quotes presume that, because
the trial of Americans in domestic courts would be
(continued...)
App. 34
The United States exerts practical dominion over
activities on the Yokota Air Force Base. The SOFA with
Japan provides that "[w]ithin the facilities and areas, the
United States may take all the measures necessary for their
1°(.. continued)
impractical, the trials must inevitably take place in
foreign courts. See Reid, 354 U.S. at 88, 77 S.Ct. 1222
(Clark, J., dissenting) (suggesting that because trial by
domestic federal courts would be "impracticable as a
general solution," Congress would have to accept "that
Americans committing offenses on foreign soil be tried by
the courts of the country in which the offense is
committed"); Kinsella, 361 U.S. at 259, 80 S.Ct. 297
(Harlan, J., dissenting) (finding the decision "regrettable
because [it is] bound to disturb delicate arrangements
with many foreign countries, and may result in our
having to relinquish to other nations ... a substantial part
of the jurisdiction now retained over American personnel
under the Status of Forces Agreements" (emphasis
added)).
Only one of the statements quoted by the dissent,
that of Justice Whittaker, actually says that "jurisdiction of
our civil courts does not extend" to "bases in foreign
lands." Kinsella, 361 U.S. at 276, 80 S.Ct. 297 (Whittaker,
J., concurring in part and dissenting in part). But it's
quite a stretch to read this stray observation, in a case that
did not concern the jurisdiction of Article III courts, as
suggesting that the Supreme Court has stamped its
imprimatur on the existence of a "jurisdictional gap."
App. 35
establishment, operation, safeguarding and control."
SOFA, supra, art. III. That broad language alone would
confer upon Congress the legislative jurisdiction to
prescribe and enforce the laws necessary for the
management and security of the Yokota Air Force Base.
But Article XVII goes farther and explicitly grants the U.S.
military the authority to exercise criminal jurisdiction over
all persons subject to military law. See id. at XVII(1).
Where jurisdiction is concurrent, the SOFA grants the
United States the primary right to try U.S. military and
civilian personnel for offenses committed solely against
U.S. security, property or persons. See id. at *1182
XVII(3)(a)(i). Thus, the SOFA recognizes U.S. jurisdiction
to try civilian employees of the armed forces for crimes
committed on the Air Force Base--as in the case here.
Extraterritorial rights conferred by the SOFA have
been confirmed by several decades of experience. Thomas
Perham, a Department of Defense attorney staffed at
Yokota, testified to the Air Force's almost exclusive control
of affairs within the base. Transcript of Testimony of
Thomas Perham, Chief of International Law at
Department of Defense Headquarters in Yokota, Japan,
United States v. Corey, No. 96-01019-DAE, at 14-15 (June 23,
1997). Japanese environmental, labor, and other regulatory
statutes are not enforced on the base. American lawyers
and doctors practice without local licenses, and gambling,
which is strictly illegal in Japan, is permitted on the base.
See id. at 14. In police matters, the U.S. government
conducts all investigations, searches and arrests, and the
Japanese police may not enter without the permission of
the United States. See id. The Japanese government is
generally reluctant to prosecute American civilians who
commit crimes against American persons or property on
App. 36
the base, because it recognizes that, despite its reserved
claim to the territory, such matters are properly within the
sphere of American interests. See id. at 24; see also
Overseas Jurisdiction Advisory Committee, Report to the
Secretary of Defense, the Attorney General, the Congress of the
United States 26 (1997).
The security personnel at the doors of Lopez Court
may be less imposing than the U.S. military, but the
United States exercises jurisdiction over the premises
nonetheless. Indeed, the United States's legal control over
embassy premises and personnel is more exclusive than
that over its affairs on the military base. In centuries past,
"the official residences of envoys were in every respect
considered to be outside the territory of the receiving
state." 1 Oppenheim's International Law § 494, at 1076
(Robert Jennings & Arthur Watts eds., 9th ed.1992).
Indeed, some courts have continued to embrace that view.
See United States v. Archer, 51 F.Supp. 708, -709
(S.D.Cal.1943) (An American consulate "is a part of the
territory of the United States of America."); see also Erdos,
474 F.2d at 159 (quoting Archer with approval). While we
have rejected this view of extraterritoriality and adopted
the view that the embassy lies within the territorial
jurisdiction of the host country, see McKeel, 722 F.2d at 588,
diplomatic norms continue to constrain the host state from
exercising its authority without the consent of the
embassy. See 1 Oppenheim's International Law, supra, § 494,
at 1077.
These norms were codified in the Vienna Convention
on Diplomatic Relations, a treaty to which both the United
States and the Philippines are signatories. See Vienna
Convention, supra. Article 22 guarantees that embassy
App. 37
land shall remain "inviolable." /d. art. 22. The host
country may not enter the embassy grounds without the
consent of the sending state. The Convention further
acknowledges that the private residences of embassy
personnel, even if they are not located on the premises of
the mission, enjoy the same inviolability as the embassy
itself. See id. art. 30; see also United States v. County of
Arlington, 702 F.2d 485 (4th Cir.1983) (finding that under
the Vienna Convention an apartment building owned by
East Germany is exempt from property taxes). Likewise,
embassy personnel, including the support staff, enjoy
absolute immunity from criminal prosecution. See Vienna
Convention, supra, art. 31.
Out of necessity, diplomatic conventions have
acknowledged the embassy's jurisdiction over crimes
committed by its personnel. Even if the embassy territory
is not considered the territory of the sending country, "an
envoy must have jurisdiction over his staff in matters of
discipline, he must be able to put under restraint a
member of his staff who has committed a crime and is to
be sent home for trial, and the like." 1 Oppenheim's
International *1183 Law, supra, § 507, at 1103. The Vienna
Convention expressly acknowledges that the sending state
may exercise criminal jurisdiction over diplomatic
personnel, see Vienna Convention, supra, art. 31(4), in
order to encourage states to prosecute their diplomatic
agents for crimes committed on embassy territory. See
Restatement, supra, § 464 n. 9. Diplomatic conventions thus
leave no doubt about our government's right to exercise
jurisdiction over Corey.
Although Lopez Court remains Philippine territory in
some sense, diplomatic conventions disable the Philippine
App. 38
government from exerting effective control over the area.
The local police could not enter the premises to investigate
crimes without the consent of the ambassador. Nor could
they prosecute Corey, or any other American member of
the embassy staff. The United States has the real power--
and the concomitant duty--to regulate conduct on those
grounds.
Thus, we conclude that the United States exercises
concurrent, and indeed primary, jurisdiction over the
actions of United States nationals on both the Yokota Air
Force Base and Lopez Court. This conclusion arises out of
the plain meaning of subsection 7(3), the. relevant
international agreements, and the practical realities of the
situation. The United States has negotiated a modus
vivendi with both Japan and the Philippines for the lands
under United States dominion in their respective
countries. Were we to hold that federal court jurisdiction
is not coextensive therewith, we would risk destabilizing
the accommodation that the Executive Branch has worked
out with the foreign powers. Congress intended through
subsection 7(3) to avoid such dangers by extending the
federal criminal laws as far as U.S. dominion.
Weare not unmindful that some commentators in the
military and academia have posited the existence of a
jurisdictional gap over American civilians stationed at
military bases abroad. See Overseas Jurisdiction Advisory
Committee, supra, at 41; Gatlin, 216 F.3d at 221 nn. 17-20
(citing other military and academic sources that describe
"jurisdictional gap"). But section 7 concerns the
jurisdiction of the federal courts, and the military has no
special expertise in construing such a statute. See National
Ass'n of Gov't Employees, Inc. v. Federal Labor Relations
Auth., 179 F.3d 946, 950 (D.C.Cir.1999) (no deference to
App. 39
agency's interpretation of statute it is not charged with
administering); California Nat'l Guard v. Federal Labor
Relations Auth., 697 F.2d 874, 879 (9th Cir.1983) (Same).
We see no reason to create a jurisdictional vacuum where
the better reading of the statute supports jurisdiction.
Vv
Both Lopez Court and the Yokota Air Force Base fall
within the "special maritime and territorial jurisdiction of
the United States." 18 U.S.C. § 7. The district court had
jurisdiction to hear the charges against Corey under 18
U.S.C. §§ 2241(a) and 2242(1).
AFFIRMED."
Samuel P. King, Jr., Honolulu, Hawaii, argued the cause
for Defendant-Appellant
Loretta A. Matsunaga, Assistant United States Attorney,
Honolulu, Hawaii, argued the cause for Plaintiff-
Appellee.
'' While we affirm the district court on the
jurisdictional ruling, we reverse the conviction because of
errors later at trial. We state the reasons for this ruling in
a memorandum disposition filed concurrently with this
Opinion.
App. 40
*1183 McCKEOWN, Circuit Judge, dissenting:
The central and threshold question in this appeal is
whether certain sections of the federal criminal code,
specifically 18 U.S.C. §§ 2241(a) and 2242(1), apply
extraterritorially so as to reach crimes committed on
foreign soil. I conclude that they do not and therefore
respectiully dissent. As the Supreme Court so clearly
stated in EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248,
111 S.Ct. 1227, 113 L-Ed.2d 274 (1991) ("Aramco"), "[w]e
assume that Congress legislates against [a] backdrop of
the presumption against extraterritoriality.". In my view,
this presumption against extraterritorial application of
federal law, combined with the ambiguous language of
*1184 the statutes and the absence of any clear
Congressional intent to include foreign locations, compel
the conclusion that the district court did not have
jurisdiction. In short, I do not think that Congress has
provided for the application of these statutes to
government-leased housing in the Philippines or housing
on a military base in Japan. Notably, Congress recently
confirmed the existence of this "jurisdictional gap" by
passing legislation to extend jurisdiction to American
civilians like Corey who are employed by or accompany
the military overseas. Absent such clear intent to extend
the reach of U.S. laws to Corey, however, we are without
jurisdiction in this case.
In reaching the opposite conclusion, the majority
creates a circuit split, see United States v. Gatlin, 216 F.3d
207 (2d Cir.2000),' chooses not to apply the well-
' The majority creates a circuit split with regard to
: a ‘continued. ..)
App. 41
established presumption against extraterritorial
application of U.S. statutes, and misinterprets 18 U.S.C. §
7(3) by ignoring its legislative history and instead relying
upon a tangential historical record. Regardless of the
recent legislation, this case raises a very important issue,
both for Corey individually and because the majority
adopts an unprecedented view of the presumption against
extraterritoriality.
I. THE NARROW ISSUE PRESENTED
The majority and I share significant common ground. |
agree that neither the Constitution nor the principles of
international law would prevent Congress from extending
the reach of a federal criminal law to Corey, a U.S. citizen.
See Aramco, 499 U.S. at 248, 111 S.Ct. 1227 ("Congress has
the authority to enforce its laws beyond the territorial
boundaries of the United States"); Skiriotes v. Florida, 313
U.S. 69, 73, 61 S.Ct. 924, 85 L.Ed. 1193 (1941) ("[T]he
United States is not debarred by any rule of international
law from governing the conduct of its own citizens upon
the high seas or even in foreign countries when the rights
of other nations or their nationals are not infringed.");
McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th
'(...continued)
application of the presumption against extraterritoriality.
Gatlin holds that the presumption is applicable; the
majority disagrees. When the Fourth Circuit interpreted
§ 7(3) more than 25 years ago, it did not address the issue.
See United States v. Erdos, 474 F.2d 157 (4th Cir.1973).
App. 42
Cir.1983) ("Nationality and the protective principle do
allow the United States to assert jurisdiction over
individuals for events occurring at United States
embassies and consulates."); see generally United States v.
Vasquez- Velasco, 15 F.3d 833, 840 & n. 5 (9th Cir.1994)
(explaining various bases of jurisdiction under
international law).”
I also agree that the relevant international agreements,
namely (1) the Agreement Under Article VI of the Treaty
of Mutual Cooperation and Security Between the United
States of America and Japan, Regarding Facilities and
Areas and the Status of United States Armed Forces in
Japan (SOFA), Jan. 19, 1960, 11 U.S.T. 1652, and (2) the
Vienna Convention on Diplomatic Relations and Optional
? Whether the "jurisdiction" at issue here is labeled
subject-matter jurisdiction (of the district court) or
legislative (also referred to as prescriptive) jurisdiction (in
other words, the power of Congress to legislate), see
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813, 113
S.Ct. 2891, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting)
(discussing difference and explaining that legislative
jurisdiction "refers to the authority of a state to make its
laws applicable to persons or activities") (internal
quotations omitted), does not affect the analysis. The
question remains whether Congress in fact provided for
overseas application of these federal penal statutes. See id.
at 814, 113 S.Ct. 2891 ("[T]he question in this litigation is
whether, and to what extent, Congress has exercised that
undoubted legislative jurisdiction in enacting the
Sherman Act.").
i
App. 43
Protocol on Disputes, Apr. 18, 1961, 23 U.S.T. 3227, 500
U.N.T.S. 95, provide the necessary authority for Congress
to enact criminal legislation applicable to these locales. In
short, there is no doubt that Congress can ensure that U.S.
citizens who engage in heinous criminal activity overseas
will stand trial in a United States court.
*1185 But this is not a case about power. The issue
before us is whether Congress exercised that power,
specifically whether Congress intended the penal statutes
that criminalize Corey's conduct to apply
extraterritorially. See Aramco, 499 U.S. at 248, 111 S.Ct.
1227 ("Whether Congress has in fact exercised that
authority ... is a matter of statutory construction.");
Vasquez-Velasco, 15 F.3d at 839. Put another way, we are
nut considering here whether Congress can bring Corey
within the reach of the U.S. Criminal Code, nor are we
considering whether Congress sliould do so. The only
question before us is whether Congress did so, and it is on
this point that the majority and I differ.
Il. PRESUMPTION AGAINST
EXTRATERRITORIALITY
A. The Law
Guiding our inquiry is the well-established cannon of
statutory construction -- the presumption against extra-
territoriality -- based on the understanding that Congress
‘is primarily concerned with domestic conditions." Foley
Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680
(1949). "[T]he presumption against extraterritorial
application of United States statutes requires that any
lingering doubt regarding the reach of the [statute] be
es T
App. 44
resolved against [extraterritorial application]. It is a
longstanding 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." Smith v. United States, 507 U.S. 197, 203-04, 113
S.Ct. 1178, 122 L.Ed.2d 548 (1993) (internal quotations
omitted) (case involving Federal Torts Claims Act). This
presumption "has a foundation broader than the desire to
avoid conflict with the laws of other nations." Sale v.
Haitian Ctrs. Council, Inc., 509 U.S. 155, 174, 113 S.Ct. 2549,
125 L.Ed.2d 128 (1993). As the Supreme Court explained:
[w]e have in this case a question of statutory
construction. The necessary locus, when not
specially defined, depends upon the purpose of
Congress as evinced by the description and nature
of the crime and upon the territorial limitations
upon the power and jurisdiction of a government
to punish crime under the law of nations. Crimes
against private individuals or their property, like
assaults, murder, burglary, larceny, robbery, arson,
embezzlement and frauds of all kinds, which affect
the peace and good order of the community, must
of course be committed within the territorial
jurisdiction of the government where it may
properly exercise it. If punishment of them is to be
extended to include those committed outside 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.
United States v. Bowman, 260 U.S. 94, 97-98, 43 S.Ct. 39, 67
L.Ed. 149 (1922).
App. 45
In light of this longstanding principle, courts have
examined the extraterritorial applicability of statutes with
the view that Congress knows how to place crimes
committed outside our borders within the jurisdictional
reach of a statute. See Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 440 n. 7, 109 S.Ct. 683, 102
L.Ed.2d 818 (1989) (explaining that Congress extended
jurisdiction to vessels on the high seas in 18 U.S.C. § 7(1));
see also Aramco, 499 U.S. at 248, 111 S.Ct. 1227 ("We assume
that Congress legislates against the backdrop of the
presumption against extraterritoriality.").°
* In fact, the criminal code is replete with examples of
unambiguous congressional intent to apply U.S. law
overseas. See, e.g., 18 U.S.C. § 112(e) (protection of foreign
_ Officials, official guests, and internationally protected
persons); 18 U.S.C. § 175 (prohibitions with respect to
biological weapons); 18 U.S.C. § 351(i) (congressional,
cabinet, and Supreme Courtassassination, kid naping, and
assault); 18 U.S.C. § 1621 (perjury); 18 U.S.C. § 2381
(treason). The clear manifestation rule has been followed
outside the criminal context as well. See Wade Estey,
Note, The Five Bases of Extraterritorial Jurisdiction and the
Failure of the Presumption Against Extraterritoriality, 21
Hastings Int'l & Comp. L.Rev. 177, 179 (1997) (providing
examples); see generally Aramco, 499 U.S. at 258, 111S.Ct.
1227 ("Congress' awareness of the need to make a clear
Statement that a statute applies overseas is amply
demonstrated by the numerous occasions on which it has
expressly legislated the extraterritorial application of a
Statute.").
(continued...)
App. 46
*1186 B. The Presumption Applies Here
The statutes at issue here, 18 U.S.C. §§ 2241(a) and
2242(1), prohibit certain forms of sexual misconduct
committed "in the special maritime and _ territorial
jurisdiction of the United States....". In turn, 18 U.S.C. §
7(3) defines "special maritime and territorial jurisdiction"
as
[a]ny lands reserved or acquired for the use of the
United States, and under the exclusive or
concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United
States by consent of the legislature of the State in
which the same shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful
building.
Neither precedent nor logic supports the majority's
conclusion that the extraterritoriality presumption is
inapplicable because a jurisdictional statute is at play.
Under Bowman, the presumption clearly applies to
criminal statutes. See Bowman, 260 U.S. at 98, 43 S.Ct. 39.
And the majority's effort to avoid the presumption
because § 7(3) defines territorial jurisdiction is
bootstrapping at its worst. Although jurisdictional
statutes address how far Congress wishes to extend U.S.
law, absent clear language or some meaningful signal,
such statutes do not necessarily indicate whether Congress
intended extraterritorial jurisdiction. The majority's
conclusion that we "should simply employ the standard
tools of statutory interpretation" when interpreting § 7(3),
*(...continued)
App. 47
see Maj. Op. at 1171 (quoting Bin Laden, 92 F.Supp.2d at
206 n. 32), brings us right back to the question at hand. In
§ 7(3), Congress defined "territorial jurisdiction." But
"territorial" cannot be equated with "extraterritorial," and
hence, we still need to determine whether Congress
intended to extend the reach of "territorial jurisdiction" to
foreign lands. To proceed otherwise would allow an end-
runaround the requirement that Congress must be explicit
in demonstrating its intent to legislate extraterritorially.
Nevertheless, the majority relies on the jurisdictional
nature of § 7(3) as a reason to avoid application of the
presumption.’ This position has been adopted by one
district court in New York, see United States v. Bin Laden, 92
F.Supp.2d 189, 206 n. 32 (S.D.N.Y.2000), but subsequently
was criticized by the Second Circuit in Gatlin. Although
a district court opinion from another circuit would have
no precedential value in this court, in some cases it might
be instructive; but that is hardly the case here when the
decision was already disavowed by the Second Circuit.
* See Maj. Op. at 1171 ("When Congress is considering
~ the scope of federal jurisdiction, its attention is focused
precisely on how far U.S. law should reach. Unlike
ordinary domestic statutes, jurisdictional statutes
inherently present the question of how far Congress
wishes U.S. law to extend. There is therefore no reason to
presume that Congress did, or did not, mean to act
extraterritorially.").
* As the Second Circuit in Gatlin explained,
(continued...)
App. 48
*(...continued)
In the present case, both parties appear to
agree that the presumption against
extraterritoriality applies. However, in a recent
opinion involving the same jurisdictional provision
at issue here, 18 U.S.C. § 7(3), Judge Sand declined
to apply the presumption against extraterritoriality.
See United States v. Bin Laden, 92 F. Supp.2d 189, 206 .
n. 32 (S.D.N.Y.2000). The presumption, Judge Sand
reasoned, "was designed to apply to provisions that
define offenses. When presented with the task of
interpreting jurisdictional statutes such as Section
7(3), courts should simply employ the standard
tools of statutory interpretation: analysis of text,
structure, and legislative history." Id.
We respectfully disagree with Judge Sand.
Although § 7(3) is the immediate focus of our
inquiry, the ultimate question here is whether a
criminal statute--i.e., 18 U.S.C. § 2243(a)--applies
extraterritorially. The presumption against
extraterritoriality plainly applies to criminal stat-
utes (other than the Bowman variety...), so § 2243(a)
applies extraterritorially only if there is a clear
manifestation of Congress's affirmative intent.
That this inquiry requires us to look to Congress's
intent in enacting 18 U.S.C. § 7, which is
incorporated by reference in § 2243(a), does not, in
our view, alter the applicable rule of statutory
interpretation. Indeed, to accept Judge Sand's view
would seriously undermine the presumption
(continued...)
App. 49
See also *1187United States v. Erdos, 474 F.2d 157, 160 (4th
Cir.1973) (failing to address canon of construction and
explaining that "[w]here the power of the Congress is
clear, and the language of the exercise is broad, we
perceive no duty to construe a statute narrowly.").
In its effort to avoid the presumption against
extraterritoriality, the majority extends Bowman far
beyond its holding or any reasonable extension of it. The
majority states that "the presumption does not apply
where the legislation implicates concerns that are not
inherently domestic" and then cites Bowman as an
example, ex; ‘aining that in that case "the Supreme Court
held that the territorial presumption does not govern the
interpretation of criminal statutes that, by their nature,
implicate the legitimate interests of the United States
abroad." Maj. Op. at 1170-71.
Bowman does not stand for such a far-reaching
proposition. Rather, Bowman recognizes a narrow
exception to the presumption against extraterritoriality for
"criminal statutes which are, as a class, not logically
dependant 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
°(...continued)
against extraterritoriality since Congress often
enacts jurisdictional provisions that are then
incorporated by reference elsewhere.
Gatlin, 216 F.3d at 212 n. 6.
App. 50
citizens, officers, or agents." 260 U.S. at 98, 43 S.Ct. 39.°
There can be little doubt that the narrow Bowman
exception does not cover the penal statutes at issue here.
Nor, in my view, does the narrow exception emanating
from Bowman and its progeny-the commonsense principle
that courts should not presume Congress intended to
legislate domestically when it criminalizes behavior that
presents a cognizable threat within our borders’--support
the majority's conclusion. See Kollias v. D & G Marine
Maintenance, 29 F.3d 67, 71 (2d Cir.1994) ("The Supreme
Court's recent discussions of the presumption against
extraterritoriality, none of which mentions Bowman, seem
° This exception, however, applies to statutes
involving crimes against the government, see, e.g., United
States v. Cotten, 471 F.2d 744 (9th Cir.1973), and crimes
relating to drug smuggling, see United States v. Larsen, 952
F.2d 1099 (9th Cir.1991) (marijuana smuggling).
” See Skiriotes, 313 U.S. at 73-74, 61 S.Ct. 924 ("[A]
criminal statute dealing with acts that are directly
injurious to the government, and are capable of
perpetration without regard to particular locality, is to be
construed as applicable to the citizens of the United States
upon the high seas or in a foreign country, though there
be no express declaration to that effect.") (citing Bowman);
United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir.1977)
("[I]f the nature of the law does not mandate its
extraterritorial application, then a presumption arises
against such application.") (citing Bowman).
— dine =P... a ve
App. 51
to require thatall statutes, without exception, be construed
to apply within the United States only, unless a contrary
intent appears.").
The majority offers a second reason for not applying
the presumption here, namely that "[l]and subject to
subsection 7(3) is not ‘extraterritorial,’ as the Supreme
Court has defined the term." Maj. Op. at 1171. In support
of this statement, the majority cites to a single statement in
Aramco. See Aramco, 499 U.S. at 248, 111 S.Ct. 1227 ("In
applying this rule of construction, we look to see whether
‘language in the [relevant Act] gives any indication of a
congressional purpose to extend its coverage beyond
places over which the United States has sovereignty or has
some measure of legislative control.' ") (quoting Foley Bros.,
336 U.S. at 285, 69 S.Ct. 575) (emphasis added).
* The majority's citation to Environmental Defense Fund,
Inc. v. Massey, 986 F.2d 528, 533 (D.C.Cir.1993), does little
to advance its argument. In Massey, the court addressed
extraterritorial application of the National Environmental
Policy Act. The court held, however, that "the
presumption against the extraterritorial application of
Statutes described in Aramco does not apply where the
conduct regulated by the statute occurs primarily, if not
exclusively, in the United States, and the alleged
extraterritorial effect of the statute will be felt in
Antarctica-- a continent without a sovereign, and an area
over which the United States has a great measure of
legislative control." Id. at 529. Unlike the conduct in
Massey, the conduct here occurred entirely outside our
borders. Moreover, the Philippines and Japan are
(continued...)
App. 52
*1188 Read literally, as the majority proposes, this
language would eviscerate the concept of
extraterritoriality. If "territorial" automatically includes
foreign lands where U.S. law applies, then the
presumption againstextraterritoriality is pointless because
there would be no "extraterritorial" application of U.S.
law.
The Second Circuit declined to go down a similar path
in Kollias. The court rejected the argument that the
presumption against extraterritoriality does not apply to
a case involving application of the Longshore and Harbor
Workers' Compensation Act (the "LHWCA") to an injury
on an American flag vessel because the ship "was in effect
a United States territory as it traveled across the high
seas." 29 F.3d at 72. After first recognizing that the law of
the flag does not necessarily govern shipboard conduct,
the court exposed the underlying circularity of this
reasoning:
In any case, the concept of extraterritoriality does
not refer to the body of law that governs the
dispute; if it did, extraterritorial application of
United States statutes would be an impossibility
because any place where United States law
governed a particular dispute would be considered
United States territory. Accordingly, we decline to
‘(...continued)
governed by other sovereigns, unlike Antarctica, which
"is generally considered to be a ‘global common’ and
frequently analogized to outer space." Id. (citation
omitted)
App. 53
characterize the [ship] as a kind of floating United
States territory, where application of the LHWCA
would not be extraterritorial.
Id.’
Simply declaring the foreign locations to be part of
US. territory is a semantic sleight of hand that avoids the
real question of statutory interpretation and congressional
intent. I turn next to an examination of the statute itself.
Ill. THE STATUTE
” Although in my view the presumption against
extraterritoriality applies with full force here and plainly
directs the analysis, I agree with the Second Circuit's
conclusion that the same result would be reached even if the
presumption did not apply. See Gatlin, 216 F.3d at 212 n. 6;
see also Erdos, 474 F.2d at 159-60 (acknowledging that,
"indeed, it is possible that when the statute was enacted the
attention of the Congress was not in the slightest focused on
extraterritorial jurisdiction."). I certainly cannot join in the
majority's apparent attempt to turn the presumption on its
head.
It also bears noting that we are dealing with a punitive
Statute, and as such the rule of lenity resonates, even if not
directly applicable. See generally Staples v. United States,
511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608
(1994) (explaining that the rule of lenity, “under which an
ambiguous criminal statute is to be construed in favor of the
accused,” applies "where, after seiz[ing] every thing from
which aid can be derived, the Court is left with an ambiguous
Statute") (internal quotations omitted).
App. 54
A. The Statute is Ambiguous
With the presumption against extraterritoriality
application as the viewing lens, the first task is to analyze
the statutory text to determine whether Congress intended
§ 7(3) to cover the foreign locations at issue here.’” As
'° The presumption against extraterritoriality is not
insurmountable. For example, in Vermilya-Brown Co. v.
Connell, 335 U.S. 377, 390, 69 S.Ct. 140, 93 L.Ed. 76 (1948),
the Supreme Court held that the Fair Labor Standards
Act, which by its terms applies to "any State of the United
States or the District_of Columbia or any Territory or
possession of the United States, ’ included land leased by
the United States in Bermuda ror use as a military base,
reasoning that "possessions" includes leased bases
overseas. But see United States v. Spelar, 338 U.S. 217, 224,
70 S.Ct. 10, 94 L.Ed. 3 (1949) (Frankfurter, J., concurring)
(criticizing Vermilya-Brown); id. at 225, 70 S.Ct. 10
(Jackson, J., concurring) (suggesting that Court should
"retreat from" Vermilya-Brown). The Court, however, did
not address the presumption against extraterritoriality.
Nor does the statute here include any specific language,
such as "possession," to guide our ins, ‘iry.
Similarly, in the area of antitrus: 1aw, the Supreme
Court has held that Congress has overcome the
presumption against extraterritoriality. Adopting
reasoning similar to that in Bowman, the Supreme Court
found that the Sherman Act "reach[es}] conduct outside
our borders, but only when the conduct has an effect on
American commerce." Matsushita Elec. Indus. Co., Ltd. v.
(continued...)
App. 55
noted before, the special *1189 maritime and territorial
jurisdiction includes:
Any lands reserved or 2 quired for the use of the
United States, and u:der the exclusive or
concurrent jurisdiction thereof, or ary place
purchased or otherwise acquired by the United
States by consent of the legislature of the State in
which the game shall be, for the erection of a fort,
magazine, arsenal, dockyard, or other needful
building.
18 U.S.C. § 7(3).
On its face, the language of § 7(3) is ambiguous and
certainly does not demonstrate an intent to apply to
locations outside the borders of the United States.
Although “any lands" could arguably be stretched to
include foreign lands, a "plausible" reading of a statute
does not overcome the presumption against
extraterritoriality. See Aramco, 499 U.S. at 253, 111 S.Ct.
1227 ("If we were to permit possible, or even plausible,
interpretations of language such as that involved here to
override the presumption against extraterritorial
application, there would be little left of the
'(...continued)
Zenith Radio Corp., 475 U.S. 574, 582 n. 6, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); accord Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 796, 113 S.Ct. 2891, 125 L.Ed.2d
612 (1993) ( "[I]t is well established by now that the
Sherman Act applies to conduct that was meant to
produce and did in fact produce some substantial effect
in the United States.").
App. 56
presumption."). Indeed, the fact that the statute has
spawned such a multiplicity of interpretations, ranging
from Gatlin to Erdos to the majority, underscores not only
the ambiguity of the statute but also the need for the
presumption itself.
Nor does the structure of § 7(3) support an intention to
include foreign lands acquired overseas. In my view, both
the first and second clauses of § 7(3) refer to lands within
our borders, as the federal government may acquire lands
other than "by consent of the legislature" of a state. See
James v. Dravo Contracting Co., 302 US. 134, 142, 147, 58
S.Ct. 208, 82 L.Ed. 155 (1937). Indeed, the United States
acquired many lands within our present borders without
the "consent" of the legislature of any state. See Gatlin, 216
F.3d at 215-16 & n 10 (quoting Jordan J. Paust, Non-
Extraterritoriality of ‘Special Territorial Jurisdiction" of the
United States: Forgotten History and the Errors of Erdos, 24
Yale J. Int'l L. 305, 318-20 (1999), noting that the United
States acquired Arlington National Cemetery in Virginia,
places within the District of Columbia, and lands acquired
in territorial form before states existed in those areas
without the consent of the legislature of any state).
The argument that the statute must apply
extraterritorially also ignores a key term within the first
clause: "reserved." The first clause refers to "lands
reserved or acquired." "Reserved" has a special historical
meaning that has nothing to do with ioreign countries. See
Paust, 24 Yale J. Int'l L. at 325 ("[I]f the land is not owned
by the United States, the land as such is not 'reserved' or
‘acquired’ by the United States within the ordinary
meaning of those terms or the meanine clarified by
legislative history and historical context, cspecially the
special meaning of 'reserved lands.'"); see also Black's Law
App. 57
Dictionary 1307-08 (6th ed. 1990) (defining "reserved land"
as "[p]ublic land that has been withheld or kept back from
sale or disposition" and "reservation" as "a tract of land ...
which is by public authority withdrawn from sale or
settlement, and appropriated to specific public uses; such
as parks, military posts, Indian lands, etc.").
This proposition is illustrated by the legislative history
of the precursors to § 7(3) and the Assimilated Crimes Act,
18 U.S.C. § 13, which adopts the criminal law of the states,
territories, possessions, or districts as the criminal laws for
"places now existing *1190 or hereafter reserved or acquired
as provided in section 7 of this title ....". 18 U.S.C. § 13(a)
(emphasis added). In 1909, Congress added "reserved" to
the 1874 version of that statute" after courts held that the
Statute did not apply to any territory that had been
obtained by the United States in any manner other than by
cession:
'' The 1874 version of the statute appeared as Section
5391 of the Revised Statutes of the United States. That
section provided, in relevant part:
If any offense be committed in any place which has
been or may hereafter be, ceded to and under the
jurisdiction of the United States, which offense is not
prohibited, or the punishment thereof is not
specially provided for, by any law of the United
States, such offense shall be liable to, and receive,
the same punishment as the laws of the State in
which such place is situated... Fi
70 Rev. Stat. § 5391 (1874) (emphasis added).
App. 58 |
[I]t was held that ... under section 5391, this law
did not apply to any territory that had been
obtained since [the statute was enacted in] 1825
except by cession, and it was discovered that a
great deal of property, for military reservations, for
arsenals, post-offices, custom-houses, quarantine
Stations, and court-houses had been acquired by
reservation; that the United States, owning the
land existing in territorial form, would reserve a
portion of it for Federal purposes, and then admit
the State to the Union. The Supreme Court said,
"Your act does not cover that class of cases. It is
specific. It relates to territory subsequently
acquired by cession. It relates to the laws of the
United States that were in force at the time you
passed it, to lands ceded to the United Sates by the
legislature of a State in accordance with the
provisions of the Constitution, but it does not relate
to territory that has been subsequently acquired in
any other way."
42 Cong. Rec. 584 (1908); accord id. at 593; Paust, 24 Yale
J. Int'l L. at 316-17."? In other words, in 1909, Congress
~~ en as ee ee eS a re ee
'? The amended Section 5391 provided: "Whoever,
within the territorial limits of any State, organized
Territory, or District, but within or upon any of the places
now existing or hereafter reserved or acquired, described in
[Section 272] of this Act," shall commit an act which is not
criminalized by the United States shall be prosecuted
under state law. See Act of March 4, 1909. ch. 321, § 289,
35 Stat. 1145 (emphasis added). As discussed infra, §
(continued...)
App. 59
was concerned about the need for legislation governing
land that the United States owned and retained when a
new state was created. See Paust, 24 Yale J. Int'l L. at 317.
The pointed reference to "reserved" in the first Clause of §
7(3), which Congress similarly included in its 1909
precursor, suggests that both clauses of § 7(3) apply only
domestically.
Even if, as the majority concludes, § 7(3) applies
"outside the borders of the fifty states," Maj. Op. at 1172,
that conclusion does not perforce mean that Congress
intended it to cover lands that remain part of foreign
countries. As the majority itself points out, see Maj. Op. at
1173-74, new lands became a part of the United States
through, among other means annexation, conquest, and
purchase.
Finally, the highly piecemeal fashion in which § 7 was
compiled undermines the majority's attempt to read the
statute holistically. See Maj. Op. at 1171- 72. "[I]t makes
little sense to inquire into congressional intent by looking
at the statute as a whole since most subsections of § 7 were
enacted separately by Congress and have their own
legislative histories." Gatlin, 216 F.3d at 216 n. 11.
Contrary to the majority's interpretation, the other
subsections of § 7 demonstrate that Congress ‘explicitly
provides for jurisdiction when it intends to do so. See, e.g., 18
U.S.C. § 7(1) (high seas); 18 U.S.C. § 7(6) (outer space).
Congressional intent with respect to the other subsections
(...continued)
272(3) was the 1909 precursor to § 7(3) in which Congress
similarly referred to lands "reserved or acquired."
App. 60
of § 7, however, does not reflect congressional intent to
extend § 7(3) across foreign borders. Indeed, in light of
the fact that Congress clearly legislated extraterritorially
in the *1191 other subsections of § 7 but did not do so in §
7(3), the presumption against extraterritoriality applies
with full force.
In conclusion, although the structure of § 7(3)
reinforces the conclusion that the United States may
acquire lands in more than one fashion, it is a dead end in
terms of analyzing whether Congress meant to include
lands outside the United States and within the borders of
other nations. To suggest, as the majority does, that
"Congress unmistakably had foreign locales in mind when
it set about defining that jurisdiction," and that the statute
"extends the jurisdiction ... to areas where American
citizens and property need protection, yet no other
government effectively safeguards those interests," Maj.
Op. at 1171, is to manufacture congressional intent by
substituting a judicial policy judgment for a congressional
one. The most one can conclude is that the language
manifests no clear congressional intent. This statute is a
poster-child for ambiguity--every court attempting to
construe and harmonize the statute goes through
contortions trying to explain what Congress meant but did
not say. In this instance, we should look to other
"available evidence," namely, the legislative history. Sale,
509 U.S. at 177, 113 S.Ct. 2549.
B. Legislative History
The legislative history of § 7(3) and its precursors, see
Act of 1790, ch. 9, 1 Stat. 112 (1790); 70 Rev. Stat., ch. 3, §
5539 (1874); Act of March 4, 1909, ch. 321, 35 Stat. 1088
(1909), reinforces the presumption against extraterri-
App. 61
toriality. Nothing in that history suggests that Congress
intended the statute to apply to foreign localities, such as
embassy housing and military bases, within foreign
countries; indeed, the legislative history counsels that
Congress intended to address domestic, not foreign,
jurisdiction.
Addressing the identical question presented here, in
the context of a military base in Germany, the Second
Circuit in Gatlin exhaustively traced the history of § 7(3)
and concluded that "the legislative history of § 7(3) and its
precursors demonstrates unequivocally that Congress, in
fact, intended the statute to apply exclusively to the
territorial United States." 216 F.3d at 220; id. at 219
("Nowhere in the legislative history of the 1909 Act-either
in the floor debates or in the lengthy report of the Special
Joint Committee on the Revision of the Laws--is there any
indication that the statute was meant to extend federal
criminal jurisdiction to land in a foreign nation.")
(citations omitted); see also Bin Laden, 92 F.Supp.2d at 209-
10; Paust, 24 Yale J. Int'l L. at 314-24.
Gatlin lays out the legislative history in detail and there
is no need to reproduce a similar analysis here. The key
to the legislative history and to interpretation of this
statute lies in examination of the statute at three points in
time: upon enactment in 1790, at the time of recodification
in 1909, and when the statute was amended in 1940.
The statute can be traced to legislation passed by the
First Congress, "An Act for the Punishment of certain
Crimes Against the United States." Act of April 30, 1790,
ch. 9, 1 Stat. 112 (1790). Unlike the current substantive
criminal law, which references a separate statutory section
that defines jurisdiction, the 1790 Act incorporated
jurisdiction into the substantive definition of the offense,
App. 62
limiting it to certain lands "under the sole and exclusive
jurisdiction of the United States." Id. at §§ 3, 6-7. As noted
in Gatlin, "the fact that the 1790 Act delimited the
jurisdiction of the federal courts to lands over which the
United States exercised exclusive legislative jurisdiction
‘virtually guarantees’ that the provision was not intended
to apply to offenses committed in a foreign territory."
Gatlin, 216 F.3d at 216 (quoting Bin Laden, 92 F.Supp.2d at
209).
The 1790 Act remained essentially unchanged until
1909, when Congress undertook a comprehensive
codification of the criminal code. For the first time, the
section defining jurisdiction was codified in a separate
statute, but again, this precursor *1192 to § 7(3) applied
only to lands over which the United States had "exclusive"
jurisdiction. See Act of March 4, 1909, ch. 321 § 272, 35
Stat. 1143 (1909) ("When committed within or on any
lands reserved or acquired for the exclusive use of the
United States, and under the exclusive jurisdiction thereof,
or any place purchased or otherwise acquired by the.
United States by consent of the legislature of the State in
which the same shall be, for the erection of a fort,
magazine, arsenal, dock-yard, or other ° needful
building."). Congress-could not have intended this
provision to apply to property in foreign countries.
Congress knew how to extend criminal jurisdiction when
it wanted to,” and its failure to do so in 1909 is telling.
'’ For example, Congress did not presume that "Indian
country" fell within the sole and exclusive jurisdiction
of the United States, but rather explicitly provided that
(continued. ..)
App. 63
It was not until 1940 that Congress expanded the
statutory scope to include land over which the federal
government had "concurrent" jurisdiction. See Act of June
11, 1940, ch. 323, 54 Stat. 304 (1940) ("When committed
within or on any lands reserved or acquired for the use of
the United States, and under the exclusive or concurrent
jurisdiction thereof, or any place purchased or otherwise
acquired by the United States by consent of the legislature
of the State in which the same shall be, for the erection of
a fort, magazine, arsenal, dockyard, or other needful
building.").
The legislative history of the 1940 amendment
indicates that Congress did not intend to expand the scope
of federal criminal jurisdiction by adding "concurrent,"
and surely not to foreign lands. Rather, according to the
'’(...continued)
‘the general laws of the United States as to the
punishment of crimes committed in any place within the
sole and exclusive jurisdiction of the United States ... shall
extend to the Indian country." Ex parte Crow Dog, 109 U.S.
956, 558, 3 S.Ct. 396, 27 L.Ed. 1030 (1883) (quoting 28 Rev.
Stat. ch. 4, § 2145). Further, the Supreme Court
recognized the need for Congress to be explicit when
providing for federal jurisdiction over Indian reservations
falling outside the Western territories: "If the land
reserved for the exclusive occupancy of Indians lies
outside the exterior boundaries of any organized
Territorial government [including by treaty], it would
require an act of Congress to attach it to a judicial
district..." Id. at 559, 3 S.Ct. 396.
App. 64
legislative history, Congress intended to respond to a 1937
Supreme Court decision that held that states consensually
transferring lands to the United States may retain partial
or concurrent jurisdiction:
Prior to the decision of the Supreme Court in
James v. Dravo Contracting Company (302 US. 134, 58
S.Ct. 208, 82 L.Ed. 155) (December 1937), it was the
accepted view that the United States acquired
exclusive jurisdiction over any lands purchased
with the consent of the State for any of the
purposes enumerated in article I, section 8, clause
17, of the Constitution, and that any provision ofa
State statute retaining partial or concurrent
jurisdiction was inoperable. In the Dravo case it
was held that a State may properly retain partial or
concurrent jurisdiction.
The provisions of the Criminal Code ... limited
the criminal jurisdiction of the Federal Government
to such Federal reservations in respect to which the
United States had acquired exclusive jurisdiction.
This bill simply restores to the Federal
Government the jurisdiction it was recognized as
having until the Dravo decision was handed down.
The most significant effect of this bill is to grant
Federal courts concurrent criminal jurisdiction on
reservations where the United States does not have
exclusive jurisdiction.
H.R.Rep. No. 76-1623, at 1 (1940); see also Gatlin, 216 F.3d
at 219-20 n. 14 ("Notwithstanding this change, it is
apparent from what little legislative history there is of the
1940 Act... that, in making this change, the 76th Congress
did not intend to extend the reach of the statute to lands
outside the United States."); Bin Laden, 92 F.Supp.2d at
App. 65
210-11 & n. 37. In other words, Congress intended the
addition *1193 of "concurrent" to address the issue of a
state's concurrent jurisdiction.
The addition of "concurrent" in 1940, without any
contemporary indication that the change was brought
about by a desire to include locations in foreign countries,
undermines the majority's reliance on the statute's
reference to "concurrent" jurisdiction. I cannot agree with
the majority's unsupported assertron that there is no
reason "to presume that when, in 1940, Congress extended
criminal jurisdiction to those lands under the concurrent
authority of the United States, it intended to limit the
reach of subsection 7(3) to areas under the concurrent
authority of the states, but not those under the concurrent
authority of other sovereigns." Maj. Op. at 1175.
Although the presumption against extraterritoriality
applies to this statute, we do not need to presume
anything here--an examination of the statute and its
history indicates that § 7(3) does not extend to lands
abroad. The majority's quantum leap from the statute's
long-standing reference to "exclusive" jurisdiction to
assertion of jurisdiction over crimes in foreign countries
cannot be sustained.
The legislative history points to one conclusion: § 7(3)
applies only in the domestic context, not to federal
criminal jurisdiction beyond our borders.
IV. RESORT TO HISTORY |
The majority's effort to find support through reference
to the history of our nation's westward expansion and
overseas acquisitions in no way informs the question here.
Rather the history demonstrates simply that Congress
App. 66 -
knew how to extend explicitly the reach of the federal
criminal code when it so desired. 1am not persuaded by
the majority's attempts to locate in the general history of
our country's nineteenth century expansion evidence ofan
intent that a provision, which at the time covered only
lands over which the United States had "exclusive"
jurisdiction, would apply to places undoubtedly located
in foreign countries.
The majority begins with the statement that, at the turn
of the century (when the precursor to § 7(3) spoke only of
lands over which the U.S. had "exclusive" jurisdiction),
Americans "may have believed that, so long as territory
remained unequivocally foreign, it lay outside the
jurisdiction of the United States, [but] they were well
aware that territory could change hands, and the United
States could gain exclusive jurisdiction over territory that
other countries claimed as their own." Maj. Op. at 1173.
Indeed, as the majority points out, the turn of the century
marked a period of great expansion in our nation's
history, which suggests that "[t]his was clearly not a time
when Americans thought of their borders as static or of
foreign territory as sacrosanct." Id. at 1173. True enough,
but, at risk of being perceived as glib, I ask, so what?
Neither was this a time when Americans viewed
themselves as having exclusive jurisdiction over land
clearly within the territorial boundaries of a foreign
sovereign.
This historical digression does not advance our
inquiry, for we are dealing here with embassy housing
and a military base, not lands that became part of our
country through annexation, purchase or conquest, and as
such-fell within our exclusive jurisdiction. Nor are we
dealing with land over which United States sovereignty or
App. 67
jurisdiction is disputed. See Maj. Op. at 1175 ("Courts had
no hesitation about treating these territories as within our
exclusive jurisdiction, even though foreign governments
claimed the territory as their own.")."* The natural
‘* The majority's discussion of Watts v. United States, 1
Wash. Terr. 288 (Wash. Terr.1870), is incomplete. See Maj.
Op. at 1174-75. The statute at issue in that case was the
precursor to § 7(3) created by the 1790 Act. See 1790 Act,
ch. 9, § 3, 1 Stat. 113. The court in Watts first concluded
that, despite a conflict between the U.S. and Great Britain,
because the U.S. "claims San Juan Island, we must treat it
as under the general laws of the United States..." Watts,
1 Wash. Terr. at 296. The court, however, went on to find
that, "in order that the crime of which the defendant is
charged should be within the jurisdiction of the Court
below, it was not only necessary that it be committed within
the United States, but in a place within the ‘sole and exclusive
Jurisdiction of the United States.' This phrase ‘sole and
exclusive' means exclusive of any other domestic jurisdiction,
and has no reference to foreign authority." Id. (emphasis
added). The court then held that the U.S. did not have
sole and exclusive jurisdiction. Id. at 299.
Watts suggests that determining whether criminal
jurisdiction exists involves a two-part inquiry, namely:
(1) whether the land was within the U.S. and, if so, (2)
whether the U.S. had sole and exclusive jurisdiction over
that land. See also id. at 301 (Jacobs, C.J., dissenting) ("We
all agree that the phrase 'sole and exclusive jurisdiction’
as used in the [act] has no reference to a claim of
jurisdiction made by any foreign power, but to state and
(continued...)
App. 68
application of § 7(3)'s precursors to such lands does not
*1194 suggest, let alone conclusively determine, that
Congress expected property used by the United States but
located squarely and unequivocally within foreign
borders” to fall within our "exclusive" jurisdiction.”
'(.. continued)
federal jurisdiction, or as we are situated, to federal as
contradistinguished from Territorial jurisdiction."). The
implication of this reasoning is that the "exclusive or
concurrent" language of § 7(3) as it reads today similarly
pertains to the federal government vis a vis the states.
The majority's reliance on Jones v. United States, 137
U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691 (1890), is also misplaced.
See Maj. Op. at 1174- 75. That case involved an island
containing guano deposits over which the U.S. had
exclusive jurisdiction, see id. at 217, 11 S.Ct. 80, and to
which Congress expressly extended federal criminal laws,
see id. at 211- 12, 11 S.Ct. 80. There was no question in
that case that Congress intended to bring the island at
issue within the scope of federal criminal jurisdiction,
although there was a question regarding Haiti's challenge
to U.S. sovereignty over the island. See id. at 219-24, 11
S.Ct. 80.
'S See United States v. Spelar, 338 U.S. 217, 219, 70 S.Ct.
10, 94 L.Ed. 3 (1949) (holding that "claims arising in a
foreign country" exclusion in Federal Tort Claims Act
applies to a leased U.S. airbase in Newfoundland because
the base remained subject to the sovereignty of Great
(continued...)
App. 69
The discussion of legislation extending federal
criminal jurisdiction to territory under Indian control and
islands claimed by Americans for their guano deposits
'°(.. continued)
Britain and therefore lay within a "foreign country").
'° The majority's recognition that the "original 1790 Act
provided basic criminal laws for lands outside the
jurisdiction of any other sovereign," Maj. Op. at 1173,
carries little weight here, for neither of these locations is
"outside the jurisdiction of any other sovereign."
Although embassy officials may be immune from
Prosecution in the host state, that does not imply that the
host state does not have jurisdiction over the embassy.
See Restatement (Third) of the Foreign Relations Law of
the United States § 466 cmt. a (1986) ("That [embassy]
Premises are inviolable does not mean that they are
extraterritorial. Acts committed on those premises are
within the territorial jurisdiction of the receiving state....").
Similarly, under the U.S.—Japan SOFA, the two countries
haveconcurrentjurisdiction over criminal acts committed
on military bases in Japan (presuming the acts are in fact
criminal under the laws of both countries). See SOFA, art.
XVII. In light of this situation, the government's
alternative argument--that jurisdiction lies under § 7(7),
which provides that the Special maritime and territorial
jurisdiction also includes "Any place outside the
jurisdiction of any nation with respect to an offense by or
against a national of the United States," is misplaced.
App. 70
also fails to provide support for the majority's decision.
See Maj. Op. at 1174-75.” Rather, these acts further
demonstrate that when it so desires, Congress knows how
to make explicit its intent to include lands within the reach
of the federal criminal code. In fact, the majority
underscores this conclusion by observing that "[w]hen the
United States claimed territory far beyond its borders,
Congress promptly extended federal jurisdiction to those
areas under U.S. control." Maj. Op. at 1175. Nor is the
majority's recognition that Congress "understood criminal
jurisdiction to extend to all lands claimed by the United
States, without regard to whether they were within a
particular state or even within the continental United
States," Maj. Op. at 1175, helpful, because the locations at
issue here are not "lands claimed by the United States."
*1195 The history of our westward expansion, while
interesting, is far afield from congressional intent in 1790
or remedial legislation adopted in 1940. To the extent we
look beyond the statute, I find the legislative history far
more instructive and compelling.
V. LEASED HOUSING AND MILITARY BASES
7 The guano islands are more akin to newly
discovered, previously unclaimed territory over which
the United States may assert exclusive jurisdiction, see
Jones v. United States, 137 US. at 212, 11 S.Ct. 80, than to
U.S. embassy housing and military bases located within
the borders of a foreign nation.
App. 71
Because I conclude that § 7(3) does not extend the
reach of 18 U.S.C. §§ 2241(a) and.2242(1) extraterritorially,
it is unnecessary to consider whether the United States
exercises "exclusive or concurrent" jurisdiction over the
leased housing or military base in this case. Nonetheless,
some discussion of the nature of these locations is useful,
as it illustrates the far-reaching consequences of the
majority opinion and the tremendous conflict it creates
with the long-held understanding of the Supreme Court,
Congress, the military, and the commentators.
A. Leased Housing
Bearing in mind that § 7(3) was intended at the outset
to extend only to lands under the exclusive control of the
United States, an apartment leased by the United States in
a foreign country is both legally and conceptually far
afield from that category. The United States is not an
infrequent tenant abroad. Under the majority's approach,
criminal jurisdiction would extend to more than 10,000
properties leased by the United States in foreign countries,
ranging from Australia to the Vatican City, and not
including extensive property leased by defense agencies.
See United States Gen. Servs. Admin., Summary Report
on Real Property Leased by the United States Throughout
the World as of September 30, 1999, at 13 (1999). Absent
congressional directive, we should not treat lightly such a
far flung extension of criminal jurisdiction.
B. Military Bases and the Jurisdictional Gap
Jurisdiction over civilians accompanying the military
abroad presents a special case. The United States typically
negotiates this jurisdiction with other countries via Status
of Forces Agreements ("SOFAs"). See Steven J. Lepper, A
App. 72
Primer on Foreign Criminal Jurisdiction, 37 A.F. L.Rev. 169,
171 (1994) ("Today, it is widely agreed that in the absence
of a treaty like SOFA, jurisdiction over foreign forces rests
exclusively with the host state.").’* The 1960 U.S.—Japan
SOFA follows the standard format,” giving Japan the
8 See generally 1 Oppenheim's International Law § 558, at
1157 (Robert Jennings & Arthur Watts eds., 9th ed. 1992)
("The view, formerly widely held, that the force was in all
respects to be regarded as beyond the jurisdiction of the
territorial state ... and subject only to that of its own
authorities can no longer be maintained. The fiction of
extra- territoriality has in this area, as in others, been
discarded.") (footnote omitted).
'9 Article XVII provides:
1. Subject to the provisions of this Article,
(a) the military authorities of the United
States shall have the right to exercise within Japan
all criminal and disciplinary jurisdiction conferred
on them by the law of the United States over all
persons subject to the military law of the United
States;
(b) the authorities of Japan shall have
jurisdiction over the members of the United States
armed forces, the civilian component, and their
dependants with respect to offenses committed
within the territory of Japan and punishable by the
law of Japan.
A complete reading of the SOFA suggests that the
(continued...)
App. 73
exclusive power to prosecute American civilians like
Corey when their offenses are not punishable under the
laws of the United States.”
“1196 Until the Supreme Court's ruling in Reid v.
Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), it
was generally presumed that United States military courts
had jurisdiction over civilians accompanying the military
who committed crimes abroad. See Gatlin, 216 F.3d at 220
n. 15; Lepper, 37 A.F. L.Rev. at 171. In Reid, however, the
Supreme Court held to the contrary, concluding that the
exercise of jurisdiction over a civilian dependent in a
'9(...continued)
land remained Japanese territory. See, e.g., Art. XXII
("The Government of Japan agrees to seek such legislation
and to take such other action as may be necessary to
ensure the adequate security and protection within its
territory of installations, equipment, property, records and
official information of the United States, and for the
punishment of offenders under the applicable laws of
Japan.") (emphasis added).
* Article XVII § 2(b) provides for Japan's jurisdiction
over dependents of the U.S. military in Japan for offenses
punishable under the law of Japan by not under the law
of the U.S.; "The authorities of Japan shall have the right
to exercise exclusive jurisdiction over members of the
United States armed forces, the civilian component, and
their dependants with respect to offenses ... punishable by
its law but not by the law of the United States."
App. 74
capital case during peacetime was unconstitutional. See
Reid, 354 U.S. at 40-41, 77 S.Ct. 1222. In so holding, the
Court created a "jurisdictional gap" with respect to
civilians accompanying the military abroad. See Gregory
A. McClelland, The Problem of Jurisdiction Over Civilians
Accompanying the Forces Overseas-Still With Us, 117 Mil. L.
Rev. 153, 173-74 (1987).
Although the Court was not addressing § 7(3), Reid
suggests that the Court was aware of the jurisdictional gap
issue. For example, Justice Frankfurter noted that the
government argued that an adverse decision meant that
"only a foreign trial could be had." 354 U.S. at 48, 77 S.Ct.
1222 (Frankfurter, J., concurring). Similarly, Justice Clark
recognized that "[t]he only alternative remaining--
probably the alternative that the Congress will now be
forced to choose--is that Americans committing offenses
on foreign soil be tried by the courts of the country in
which the offense is committed." Id. at 88, 77 . Ct. 1222
(Clark, J., dissenting).
Three years after Reid, in Kinsella v. United States ex rel.
Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960),
the dilemma of the jurisdictional gap again surfaced.
With respect to civilians accompanying the military
outside the United States, the Court pointed to "the want
of legislation providing for trials in capital cases in Article
III courts sitting in the United States," noting that, "[a]t
argument, the Government indicated that there had been
no effort in the Congress to make any provision for the
prosecution of such cases either in continental United
States or in foreign lands." Id. at 245, 80 S.Ct. 297. Justice
Whittaker agreed that "jurisdiction of our civil courts does
not extend" to "bases in foreign lands." Id. at 276, 80 S.Ct.
App. 75
297 (Whittaker, J., concurring in part and dissenting in
part). Finally, Justice Harlan, in dissent, wrote that the
Court's decisions "are ... regrettable because they are
bound to disturb delicate arrangements with many foreign
countries, and may result in our having to relinquish to
other nations ... a substantial part of the jurisdiction now
retained over American personnel under the Status of
Forces Agreements." /d. at 259, 80 S.Ct. 297 (Harlan, J.,
dissenting).
The majority gives short shrift to the conclusion that
such a jurisdictional gap exists. See Maj. Op. at 1172 n. 3.
But Congress recently passed legislation specifically to
close the gap. See Military Extraterritorial Jurisdiction Act
of 2000, S. 768, 106th Cong. (2000).?!_ I view the recent
legislation as confirmatory "icing on the cake" and not, as
the majority suggests, evidence of congressional intent in
1790. The gap is not illusory. Prior to this new legislation,
Congress made numerous efforts to enact legislation to fill
the gap. See Gatlin, 216 F.3d at 222 n. 23 (documenting
multiple failed congressional attempts to close gap);
Susan S. Gibson, Lack of Extraterritorial Jurisdiction Over
Civilians: A New Look at an Old Problem, 148 Mil. L.Rev.
114, 136-37 (1995); Thomas G. Becker, Justice on the Far
Side of the World: The Continuing Problem of Misconduct by
Civilians Accompanying the Armed Forces in Foreign
Countries, 18 Hastings Int'l & Comp. L. Rev. 277, 287 (1995)
(discussing recent proposals to make conduct that would
be punishable if committed within the special maritime
and territorial jurisdiction also punishable if committed by
civilians accompanying the armed forces overseas);
*! The legislation awaits the President’s signature.
App. 76
Robinson O. Everett and Laurent R. Hourcle, Crime
Without Punishment-Ex-Servicemen, Civilian Employees and
Dependants, 13 US.A.FJ.A.G. L. Rev. 184 (1971)
(discussing § 7(3) at length); McClelland, supra at 199-200
(discussing *1197 proposals to expand § 7(3) during the
1980s that would have covered crimes committed "within
a United States military installation abroad"). Although
this new legislation does not apply to Corey, it certainly
confirms the existence of the gap in this case--and, by
implication, the conclusion that § 7(3) does not fill the gap.
Moreover, the military has also recognized the existence
of this jurisdictional gap. See Department of. Defense
Overseas Jurisdiction Advisory Committee, Report of the
Advisory Committee on Crim
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