Amicus Curiae Brief — British American Tobacco (Investments) Ltd. v. United States

‘MAR 24 2010

\ce it) OFFICE OF THE CLERK

No. 09-980

3u the Supreme Court of the Anited States

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED,

PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETTTION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE INTERNATIONAL ASSOCIATION

OF DEFENSE COUNSEL AS AMICUS CURIAE

SUPPORTING PETITIONER

MICHAEL A. HEIDLER JOHN P. ELWOOD

VINSON & ELKINS LLP Counsel of Record

2801 Via Fortuna PAUL B. SPELMAN

Suite 100 VINSON & ELKINS LLP

Austin, Texas 78746-7568 The Willard Office Building

(512) 542-8579 1455 Pennsylvania Avenue,

NW, Suite 600

Washington, DC 20004

(202) 639-6500

jelwood@velaw.com

Counsel for Amicus Curiae

eee

WILSON-EPES PRINTING CO., INC. — (202) 788-0088 — WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

Interest of the Amicus Curiae ............cccccsseeeees 1

Summary of Argument .................ccceceersseeceeeees 2

p ETL Pe TORR RE RD 4

A. Review In This Case Would Permit

The Court To Clarify Significant Areas

Of Confusion In Extraterritoriality

B. The “Effects” Test Provides Scant

Guidance For Courts And Legitimate

Businesses And Encourages Wasteful

II hi cssniistateancciaipniesiiiiiisgaaiaiialiaaainid 10

C. A Straightforward Application Of This

Court’s Precedents Confirms That

RICO Does Not Apply Extrater-

IIIT cinahuninnsctcussesoungimesminasanniiiicnitenniie 19

Conclusion ..............00. ssiscsdeaieenlalald ha caitlatiiialattatibiiani tates 25

TABLE OF AUTHORITIES

Cases:

Aerovias de Mexico, S.A. v. De Prevoisin,

No. 99-41162, 2000 WL 992495

(6th Cir. June 29, 2000) (per curiam) ......... 15

Agency Holding Corp. v. Malley-Duff &

Assocs., Inc., 483 U.S. 143 (1987)................ 19

American Banana Co. v. United Fruit

es ee SRN: MI I decircintcsccnianmdnoteconencnae 5

(1)

Il

Cases—Continued: Page

Am. Rice, Inc. v. Ark. Rice Growers Co-Op

Asa’n, 701 F.2d 408 (5th Cir. 1983)............. 12

Atlantic Richfield Co. v. Arco Globus Int

Co., 150 F.3d 189 (2d Cir. 1998).................. 15

Butte Mining PLC v. Smith, 76 F.3d 287

I oc eeieeenucintnnemadnmnveneners 14

Den Norske Stats Oljeselskap As v. Heere-

Mac Vof, 241 F.3d 420 (5th Cir. 2001)........ 10-11

EEOC v. Arabian American Oil Co.,

499 U.S. 244 (1991).......ceccsccececeseceeeseee- passim

Enron Corp. Sec., Derivative & ERISA

Litig., No. MDL-1446, 2005 WL 1798423

(S.D. Tex. July 26, ZOOS) .........cccccccscccesserees 13

Filetech S.A. v. France Telecom S.A..,

157 F.3d 922 (2d Cir. 1998)....................----- 17

Foley Bros., Inc. v. Filardo, 336 U.S.

RT Ae ASE 4,19

Hartford Fire Ins. Co. v. California,

8 ET Se 11

Hertz Corp. v. Friend, No. 08-1107,

ESE SIE ee 17, 18

H.J. Inc. v Northwestern Bell Tel. Co.,

I a csictinn 21

Intl Cafe, S.A.L. v. Hard Rock Cafe

Intl (U.S.A.), 252 F.3d 1274

(11th Cir. 2001) (per curiam) ...................... 12

Int Data Bank, Lid. v. Zepkin, 812 F.2d

148 (46 Cle. 1987) .nccccccceccccveceseee. RE o onan 17

Laker Airways Ltd. v. Sabena, 731

Fe CI, TE cccrcerescccecvescesescecsse 5, 17

III

Cases—Continued: Page

Liquidation Comm'n of Banco

Intercontinental, S.A. v. Renta,

530 F.3d 1339 (11th Cir. 2008).................... 10, 15

Mak v. Wocom Commodities Ltd.,

112 F.3d 287 (7th Cir. 1997)..............cccccseeee 13

Metro Indus., Inc. v. Sammi Corp.,

82 F.3d 839 (Sth Cir. 1996)............ccccesercccees 11-12

McBee v. Delica Co., 417 F.3d 107

a enone 12,13

McCulloch v. Sociedad Nacional de

Marineros de Honduras,

Be ee Be II voi cccnicnniionioveseonsnedmicumannieai 9

New York Cent. R.R. v. Chisholm, 268

TTT s0n.sccsinsiinsicatinniiienbalietisnmmmmmnilie 9

Nintendo of Am., Inc. uv. Aeropower Co., 34

F.3d 246 (4th Cir. 1994)........0...ccccccccccccccecece 12

North South Fin. v. Al-Turki,

100 F.3d 1045 (2d Cir. 1996)........... 13, 15, 18, 20

Pasquantino v. United States, 544

i crslacnle ne Siena 9

Poulos v. Caesars World, Inc., 379

F.3d 664 (9th Cir. 2004).............cccccccccsssccsees 14

Republic of the Philippines v. Marcos,

862 F.2d 1355 (1988) (en banc) ................... 15

Reves v. Ernst & Young, 507 U.S. 170 (1993)... = 21

Robinson v. TCI/US W. Cable Commc’ns

Inc., 117 F.3d 900 (5th Cir. 1997) ............... 13

Rotella v. Wood, 528 U.S. 549 (2000) ..............- 21

Sedima, SPRL v. IMREX Co., Inc., 473 U.S.

BI txressonstensninshinaiesaateniomaimaaaae 24

Smith v. Duffey, 576 F.3d 336 (7th Cir.)

TIED ccccccdcnentescccdsocceuevsecccensmuntehbessesmaaa 17

IV

Cases—Continued: Page

Steele v. Bulova Watch Co., 344

a cnontmention 5-6

Timberlane Lumber Co. v. Bank of Am.,

549 F.2d 597 (9th Cir. 1976)..................0.00 10-11

United States v. Aluminum Co. of Am.,

148 F.2d 416 (2d Cir. 1945)......................... 10

United States v. Baker, 609 F.2d 134

ES OC 7

United States v. Bowman, 260 U.S. 94

aa 2, 6-7

United States v. Gatlin, 216 F.3d 207

a ccneseninnueniine 8

United States v. Gladue, 4 M.J. 1

iis iencnernsnnnen Rg

United States v. Martinelli, 62 M.J. 52

EE 8

United States v. Nippon Paper Indus. Co.,

109. F.3d 1 (let Cir. 1997) ......cccccccccccccccsccsees 11

United States v. Noriega, 746 F. Supp.

a 7-8

United States v. Palmer, 16 U.S.

ey EE... sccasenocsocseneoncsenes 8, 22

United States v. Plummer, 221 F.3d

a 7

United States v. Sisal Sales Corp.,

8, EA 6

Wells Fargo & Co. v. Wells Fargo Express

Co., 556 F.2d 406 (9th Cir. 1977) ................ 12

Wilson v. Garcia, 471 U.S. 261 (1985).............. 19

Zoelsch v. Arthur Andersen & Co., 824

F.2d 27 (D.C. Cir. 1987).................. 0 eee 16-17

Statutes: Page

eR ein ete Renae neem 11

aac aiaealiden 20

18 U.S.C. § 112(a) ....... ieichieeditimiasndedasipaibuamanienansn 19

I inciisecianieninesinenepuennendenennnoninns 19

8 Eee 20

icc cccnnswentienuencnennienten nmaeamncliaa 20

Tas. ccccicnstuecmtoenincerionnecnenpeniel 19-20

I oi ccsnnedeininiemenbsabaeasnavenemnaie 19

i inccisnicccpinsnaneoneeicehinmenmenanian 19

as iirncchdunvenneuniiiunininenionenene 19

os sccenneiioumiennes 19

te MID civcicncecsdensoccrncnassnitoncioiene 20

ELE ERR 20

aii ssceneiemennindsendiioninentate 20

ee I ae niciicuicunsectensamninedntonins 20

ts cicoinssicainnbnenendaintinitoene 20

ee ee ac neinsisencitennsniniesaneneniennennee 20

a rcinintiinntsinntéiiapencnnmernineeinennes 20

ioc sassneiectnmbnnediimmenndbinemennis 20

4 vailsatiaateienhinatane 20

ee ee i vitincinantecesmvensenceieniinnmnnnstion 20

ee te ID 6 cccsenensencntunsnevnacsennienin 9

I soc ccnivinaabneniesemneicommenseieianannins 8

I vicicicdaiichaalionntabinindemsomeneiiilinns 8

caer nee ern 20

SE i srasscrcnesscciiennnitenienicinveniiasiiaiianiuainieteiie 20

og ee eee 20

Pub. L. 91-452, 84 Stat. 922 (Oct. 14, 1970) .... 22-23

VI

Miscellaneous: Page

115 Cong. Rec. 5874 (1969)..................2ececeeeeeees 23

115 Cong. Rec. 5875 (1969)..........0:cccccceceseceeeeee. 23

115 Cong. Rec. 5877 (1969)...............cccccceeeeeeeees 22

115 Cong. Rec. 9951 (1969) ........0..cecec0ecceseseeeeeee 22

115 Cong. Rec. 10,712 (1969)..................2.-.22000- 23

115 Cong. Rec. 31,914 (1969)...............-..2.0000-000 22

115 Cong. Rec. 32,3847 (1969)................csscccesceee 22

116 Cong. Rec. 819 (1970)............cccsseccssssccesesees 23

116 Cong. Rec. 18,913 (1970).................2.cceeeeeee 23

116 Cong. Rec. 35,295 (1970)...........cccecssseceserees 22

116 Cong. Rec. 35,296 (1970).............-.cccceeeceeeee 23

134 Cong. Rec. 22,374 (1988)...............-ccccseeeeeee 23

H.R. 2983, 100th Cong. (1987).................2c0.0000 23

H.R. 12915, Diet Cong. (1970) ...........cccccccsccseees 22

H.R. 19340, 91st Cong. (1970) .............cccssccseseee 22

H.R. Rep. No. 97-686 (1982), reprinted

p> fie Telee Fi |) SEeenenee 11, 16

S.1, 94th Cong., 1st Sess. (1975)..................22008 24

§.15623, 100th Cong. (1987) .................2..0cccc00000- 23

BD. TRB. FOO. DEAE 8 Cre cnecesensncesecsacecesscsnccsones 4, 23

Areeda, Phillip E. & Herbert Hovenkamp,

Antitrust Law (3d ed. 2006)...................006+ 16

The Antitrust Model of Extraterritorial

Trademark Jurisdiction: Analysis

and Predictions After F. Hoffman-

La Roche, 20 Emory Int'l L. Rev.

I cchircictisicniuhapbisdipainneniedénenilacesapuaaanels 13, 16

Vil

Miscellaneous—Continued: Page

Dresnick, Jordan A, Kimberly A. Piro &

Israel J. Encinosa, The United States as

Global Cop: Defining the ‘Substantial

Effects’ Test in U.S. Antitrust Enforcement

in the Americas and Abroad, 40 U.

Miami Inter-Am. L. Rev. 453 (2009)........... 12

Elhauge, Einer, Statutory Default

Rules: How to Interpret Unclear

pS tr 21

Extraterritorial Effect of the Posse

Comitatus Act, 13 Op. O.L.C. 321 (1989)... 8

Goldsmith, Michael & Vicki Rinne, Civil

RICO, Foreign Defendants, and “ET,”

73 Minn. L. Rev. 1023 (1989) ..................02. 23

Griffin, Joseph P., Extraterritoriality in U.S.

and EU Antitrust Enforcement, 67

Antitrust L.J. 159 (1999)..............ccccccsccesseee 18

Huffman, Max, A Retrospective on Twenty-Five

Years of the Foreign Trade Antitrust

Improvements Act, 44 Hous. L. Rev. 285

ESERIES AO RURCRIC ESE iste ene annrCo NC 11

National Commission on Reform of the

Federal Criminal Laws, Final Report

8, REECE IIE ORES TEPER yor PSC 24

Parrish, Austen, The Effects Test:

Extraterritoriality’s Fifth Business,

61 Vand. L. Rev. 1455 (2008) ...................... 16

Podgor, Ellen S., A New Dimension to

the Prosecution of White Collar Crime:

Enforcing Extraterritorial Social Harms,

37 McGeorge L. Rev. 83 (2006).................... 16

Vill

Miscellaneous—Continued: Page

Podgor, Ellen S. & Daniel M. Filler,

International Criminal Jurisdiction

in the Twenty-First Century:

Rediscovering United States v. Bowman,

44 San Diego L. Rev. 585 (2007) ................. 7,8

Predictability and Comity: Toward

Common Principles of Extraterritorial

Jurisdiction, 98 Harv. L. Rev. 1310

President's Commission on Law Enforcement

and the Administration of Justice, The

Challenge of Crime in a Free Society

Is it itn iecidiataraaialt ieindadhihbdeiareiniaainenimdcentineuecenne 21-22

Turley, Jonathan, “When in Rome”:

Multinational Misconduct and

the Presumption Against Extraterritoriality,

84 Nw. U. L. Rev. 598 (1990)...................066 16

W. Barton Patterson, Note, Defining

the Reach of the Securities Exchange

Act: Extraterritorial Application

of the Antifraud Provisions, 74

Fordham L. Rev. 213 (2005)...............ccccceees 13-14

Su the Supreme Court of the United States

No. 09-980

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED,

PETITIONER

VU.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE INTERNATIONAL

ASSOCIATION OF DEFENSE COUNSEL AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE AMICUS CURIAE!

Amicus curiae International Association of De-

fense Counsel (“IADC”) is an organization of

| Pursuant to Rule 37.6, no counsel for any party authored

this brief, in whole or part, and no counsel for a party or party

made a monetary contribution to fund the preparation or sub-

mission of this brief. No entity or person, aside from the

amicus curiae and ita counsel, made any monetary contribution

for the preparation or submission of this brief. Counsel for the

parties received timely notice and consented to this filing.

(1)

2

corporate and insurance attorneys whose practice is

concentrated on the defense of civil lawsuits. Since

1920, the [ADC has been dedicated to the just and

efficient administration of civil justice and continual

improvement of the civil justice system. The IADC

regularly files briefs in pending cases throughout the

United States on a variety of civil justice issues of

broad application. Because the decision below erro-

neously sweeps a vast amount of foreign conduct

within the jurisdiction of U.S. courts, and will sub-

ject legitimate foreign businesses to invasive discov-

ery, wasteful litigation, and treble damages under

the Racketeer Influenced and Corrupt Organizations

Act (“RICO”), IADC has a strong interest in its

prompt review and reversal.

SUMMARY OF ARGUMENT

This case implicates several facets of extraterrito-

riality law that have caused significant confusion in

the lower courts. Review by this Court thus would

provide critical guidance on important and recurring

issues that are of growing importance in an increas-

ingly globalized world economy. The decision of the

court below that the regulation of foreign conduct

affecting the United States does not implicate the

presumption against extraterritoriality conflicts with

several decisions of this Court, which have made

clear the presumption applies even when foreign

conduct has domestic effects. Review also would

permit the Court to resolve an acknowledged conflict

in the lower courts over the meaning of this Court’s

decision in United States v. Bowman, 260 U.S. 94

(1922), a case involving prosecution of crimes on the

high seas against the United States government,

3

which courts—including in cases involving RICO’s

extraterritorial reach—have widely misinterpreted

to permit extraterritorial actions for harms done to

private parties. It would also provide an opportunity

to address questions that have been raised about

whether boilerplate statutory references to “inter-

state or foreign commerce” suffice to overcome the

presumption against extraterritoriality.

Long experience with the “effects” test in anti-

trust, trademark, and securities law, as well as in

applying RICO itself, confirms it is inherently inde-

terminate, unpredictable, and fact-intensive, making

it a deeply flawed means for determining the extra-

territorial application of a statute as expansive as

RICO. As this Court has recognized, such indeter-

minate tests promote wasteful litigation and create

uncertainty that deters legitimate foreign businesses

from engaging in activities that could subject them

to suit here, thus inhibiting commerce.

A straightforward application of this Court’s

precedents clearly indicates that RICO does not ap-

ply extraterritorially. The statute is silent about ex-

traterritorial application and some of its enforce-

ment provisions affirmatively limit RICO to domes-

tic use. The absence of even rudimentary provisions

to accommodate RICO’s application abroad confirms

that Congress did not intend it to apply extraterrito-

rially, and underscores the importance of requiring a

clear indication Congress wishes a statute to be ap-

plied abroad, to ensure it has made the necessary

legislative determinations to address potential con-

flicts with foreign nations. Such sensitive foreign-

relations judgments should be made by Congress,

4

not by courts on an ad hoc basis. Finally, RICO’s

legislative history confirms that Congress intended

it to address “the nationwide nature of the activity of

organized crime.” S. Rep. No. 91-617, at 161 (1969).

ARGUMENT

A. Review In This Case Would Permit The

Court To Clarify Significant Areas Of Con-

fusion In Extraterritoriality Law

There is significant confusion among the federal

courts on the extraterritorial application of U.S. law.

Because this case implicates several of the principal

areas of confusion, it provides an excellent vehicle

for furnishing the lower courts with sorely needed

guidance on important and recurring questions in an

area of the law that is of growing importance in an

increasingly globalized world economy.

1. “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.’” EEOC v. Arabian

American Oil Co., 499 U.S. 244, 248 (1991)

(‘Aramco’) (quoting Foley Bros., Inc. v. Filardo, 336

U.S. 281, 284-85 (1949)). While “Congress has the

authority to enforce its laws beyond the territorial

boundaries of the United States,” whether it “has in

fact exercised that authority * * * is a matter of

statutory construction.” Id. The D.C. Circuit’s deci-

sion below drastically departed from that basic un-

derstanding, concluding that “[b]ecause conduct with

substantial domestic effects implicates a state’s le-

gitimate interest in protecting its citizens within its

borders, Congress’s regulation of foreign conduct

meeting th[e] ‘effects’ test is ‘not an extraterritorial

5

assertion of jurisdiction.” App. 58 (quoting Laker

Airways, Ltd. v. Sabena Belgian World Airlines, 731

F.2d 909, 923 (D.C. Cir. 1984)). Thus, the court held,

“the presumption against extraterritoriality does not

apply.” Id. (emphasis added). Review is warranted

to correct that fundamental misunderstanding.

This Court has frequently noted that a jurisdiction

may regulate conduct outside of its borders that has

effects within it, but its decisions make clear that

the presence of domestic effects does not eliminate

the need for applying the presumption against extra-

territoriality. In Steele v. Bulova Watch Co., 344

U.S. 280 (1952), for example, this Court held that

the Lanham Act authorized relief for an American

corporation against acts of trademark infringement

by a U.S. citizen in Mexico. The Court began by re-

affirming that “legislation of Congress will not ex-

tend beyond the boundaries of the United States

unless a contrary legislative intent appears,” id. at

285, and that the determination whether Congress

had “project[ed] the impact of its laws beyond the

territorial boundaries of the United States * * * de-

pends on construction” of the statute. Jd. at 282-83.

The Court then analyzed the statutory text and con-

cluded that the infringing activities “fall within the

jurisdictional scope of the Lanham Act.” ZId. at 283-

85. Finally, the Court separately addressed the do-

mestic effects of foreign conduct in rejecting the ar-

gument that relief would violate the holding of

American Banana Co. v. United Fruit Co., 213 U.S.

347 (1909), that “a violation of American law could

not be grounded on a foreign nation’s sovereign

acts.” That case was not implicated, the Court ex-

6

plained, because the defendant's “‘own deliberate

acts, here and elsewhere, . . . brought about forbid-

den results in the United States.’” 344 U.S. at 288

(quoting United States v. Sisal Sales Corp., 274 U.S.

268, 276 (1927)). The Court’s analysis makes plain

that the presence of domestic effects did not relieve

it of the obligation of first ensuring Congress had au-

thorized the statute to be applied extraterritorially,

and that granting relief against the defendant’s for-

eign conduct was deemed “extraterritorial” despite

its domestic effects. Accord Sisal Sales, 274 U.S. at

274-75 & n.*, 276.

2. Review in this case also would permit the

Court to address an acknowledged conflict in the

lower courts over the meaning of this Court’s deci-

sion in United States v. Bowman, 260 U.S. 94 (1922).

There, the Court held that the crime of conspiring to

defraud a government-owned corporation (by over-

billing it for ship fuel) applied to conduct on the high

seas, notwithstanding the usual presumption

aguinst extraterritoriality. The Court explained:

Crimes against private individuals or their prop-

erty, like assaults, murder, burglary, larceny, rob-

bery, 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 commit-

ted 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. * * *

7

But the same rule of interpretation should not

be applied to criminal statutes which are, as a

class, not logically dependent on their locality for

the Government’s jurisdiction, but are enacted be-

cause of the right of the Government to defend it-

self against obstruction, or fraud wherever perpe-

trated, especially if committed by its own citizens,

officers or agents.

Id. at 98 (emphasis added).

The lower courts are divided on the meaning of

Bowman. See Ellen S. Podgor & Daniel M. Filler,

International Criminal Jurisdiction in the Twenty-

First Century: Rediscovering United States v. Bow-

man, 44 San Diego L. Rev. 585, 590-94 (2007). Some

have interpreted Bowman's limited exception to hold

broadly that even “[a]bsent an express intention on

the face of the statutes,” Congress’s intent to apply a

statute extraterritorially “may be inferred from the

nature of the offense[],” United States v. Baker, 609

F.2d 134, 136 (5th Cir. 1980), regardless of whether

the crime is directed against the government itself.

“On authority of Bowman, courts * * * have routinely

inferred congressional intent to provide for extrater-

ritorial jurisdiction over foreign offenses that cause

domestic harm.” United States v. Plummer, 221 F.3d

1298, 1304-05 (11th Cir. 2000). This division of au-

thority is directly implicated here: The influential

decision in United States v. Noriega, 746 F. Supp.

1506 (S.D. Fla. 1990), aff'd on other grounds, 117

F.3d 1206 (11th Cir. 1997), held in reliance on Bow-

man, id. at 1515, that Congress implicitly authorized

RICO’s worldwide application in light of the breadth

of its prohibitions, id. at 1516-17: “As long as the

8

racketeering activities produce effects or are in-

tended to produce effects in this country, RICO ap-

plies.” Id. at 1517.2

Other courts have explicitly “disagree[d]” with

that line of cases, recognizing that “Bowman was

clearly cast in reference to the ‘class’ of criminal stat-

utes” against the government, and “is not a free

standing principle of statutory construction” appli-

cable outside that limited-context. United States v.

Martinelli, 62 M.J. 52, 58 (C.A.A.F. 2005); accord

United States v. Gatlin, 216 F.3d 207, 211 n.5 (2d

Cir. 2000) (Cabranes, J.); United States v. Gladue, 4

M.J. 1, 4-5 (C.M.A. 1977).3 Scholars also have criti-

cized that line of cases for “dramatically chang[ing]

the meaning of [Bowman].” Kediscovering Bowman,

44 San Diego L. Rev. at 592. Review in this case

would present an opportunity to restore a proper

understanding of Bowman.

3. Finally, review in this case would permit the

Court to address whether general statutory refer-

2 As petitioner notes (Pet. 21 & n.9), Noriega largely relied

on language in 18 U.S.C. § 1962(c) and (d) prohibiting certain

conduct by “any person associated with any enterprise,” which

the court characterized as “all-inclusive” language which

“dofes] not suggest parochial application.” 746 F. Supp. at

1516. But this Court long ago rejected that argument. See

United States v. Palmer, 16 U.S. (8 Wheat.) 610, 631 (1818)

(Marshall, C.J.) (although statute applied to “any person or

persons,” words “broad enough to comprehend every human

being,” presuming Congress did not mean it to apply to foreign

citizens on the high seas).

3 In another context, the government has affirmed this nar-

row understanding of Bowman. See Extraterritorial Effect of

the Posse Comitatus Act, 13 Op. O.L.C. 321, 330 (1989).

9

ences to “foreign commerce” suffice to overcome the

presumption against extraterritoriality. RICO pro-

hibits specified conduct in connection with an “en-

terprise which is engaged in, or the activities of

which affect, interstate or foreign commerce,” 18

U.S.C. § 1962(a)-(c). This Court has “repeatedly held

that even statutes that contain broad language * * *

that expressly refer to ‘foreign commerce’ do not ap-

ply abroad.” Aramco, 499 U.S. at 251 (citing New

York Cent. R.R. v. Chisholm, 268 U.S. 29 (1925);

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963)). Under those prece-

dents, such “boilerplate language which can be found

in any number of congressional Acts” falls far short

of what is necessary to overcome the presumption

against extraterritoriality. Aramco, 499 U.S. at 251.

But a recent decision of this Court may raise ques-

tions about that settled law. There is language in

Pasquantino v. United States, 544 U.S. 349 (2005),

that a statute that “punishes frauds executed ‘in in-

terstate or foreign commerce,’ *** is surely not

[one] in which Congress had only domestic concerns

in mind.” Id. at 371-72 (internal quotations and ci-

tations omitted). While that statement is plainly

dicta—the opinion emphasizes that only domestic

conduct was at issue, id. at 371—it has raised ques-

tions about whether boilerplate references to foreign

commerce suffice to overcome the presumption

against extraterritoriality.

10

B. The “Effects” Test Provides Scant Guidance

For Courts And Legitimate Businesses And

Encourages Wasteful Litigation

“[Clourts have divided over thfe] issue” of

“whether RICO applies extraterritorially at all.”

Liquidation Comm'n of Banco Intercontinental, S_A.

v. Renta, 630 F.3d 1339, 1351 (11th Cir. 2008). But

even among those courts that, like the court below,

use the “effects” test to determine the extraterrito-

rial application of RICO, there is such disagreement

and confusion about its operation that it provides lit-

tle guidance to courts and legitimate businesses.

Moreover, long experience in other fields in which

the test has been used—securities, antitrust, and

trademark law—demonstrates the test is so inher-

ently indeterminate, fact-intensive, and unpredict-

able in application that it is a deeply flawed means

for determining the extraterritorial applicatio:. of a

statute as expansive as RICO.

1. Decades of experience using the “effects” test in

various contexts reveal persistent confusion about

the magnitude and directness of the effects required

to warrant extraterritorial application, yielding un-

predictable and inconsistent outcomes.

Antitrust. Between the 1940s and the 1970s, most

courts applied variations of the test established in

United States v. Aluminum Company of America,

148 F.2d 416 (2d Cir. 1945) (“Alcoa”), which con-

cluded that the Sherman Act applies extraterritori-

ally if an anticompetitive agreement has an intended

effect on imports. Id. at 443-44. “The already con-

fused effects test [became] even more imprecise fol-

lowing the Ninth Circuit’s decision in Timberlane

11

Lumber Co. v. Bank of America, 549 F.2d 597, 613

(Sth Cir. 1976).” Den Norske Stats Oljeselskap As v.

HeereMac Vof, 241 F.3d 420, 424 n.12 (5th Cir. 2001)

(“Statoil”). Timberlane adopted a “jurisdictional rule

of reason,” comprised of a relaxed formulation of the

“effects” test (whether the challenged conduct had

“some effect actual or intended,” 549 F.2d at 613-14),

and consideration of comity interests.

Because “courts differ[ed] in their expression of

the proper test for determining whether United

States antitrust jurisdiction over international

transactions exists,” H.R. Rep. No. 97-686, at 2

(1982), reprinted in 1982 U.S.C.C.A.N. 2487, 2487,

Congress adopted a statutory “effects” test in 1982’s

Foreign Trade Antitrust Improvements Act

(“FTAIA”), under which the Sherman Act applies to

foreign conduct that “has a direct, substantial, and

reasonably foreseeable effect” on domestic commerce.

15 U.S.C. § 6a.

But far from clarifying the “effects” test, section 6a

“introduced confusion” to “an area of the law that

was already ‘confused and unsettled.” Max Huff

man, A Retrospective on Twenty-Five Years of the

Foreign Trade Antitrust Improvements Act, 44 Hous.

L. Rev. 285, 286-98 (2007) (quoting Statoil, 241 F.3d

at 423-24)). Several courts—including this Court—

have found section 6a “unclear” and have, on occa-

sion, relied instead on its common-law predecessors.

See, e.g., Hartford Fire Ins. Co. v. California, 509

U.S. 764, 795-96 (1993) (principally applying the AI-

coa test); accord United States v. Nippon Paper In-

dus. Co., 109 F.3d 1, 4 (1st Cir. 1997) (declining to

“rest * * * upon the FTAIA”); Metro Indus., Inc. v.

12

Sammi Corp., 82 F.3d 839 (9th Cir. 1996) (applying

Timberlane). Even courts that apply the FTAIA’s

“direct, substantial, and reasonably foreseeable ef-

fect” standard have been inconsistent in their appli-

cation. “[C]lourts do not appear to adhere to any par-

ticular metric” when applying the test, and stan-

dards “lack uniformity and are susceptible to being

manipulated to reach a desired outcome.” Jordan A.

Dresnick, Kimberly A. Piro & Israel J. Encinosa, The

United States as Global Cop: Defining the ‘Substan-

tial Effects’ Test in U.S. Antitrust Enforcement in the

Americas and Abroad, 40 U. Miami Inter-Am. L.

Rev. 453, 486 (2009). That “similar facts are capable

of being interpreted quite differently under the

‘same’ test” reflects the test’s inherent indetermi-

nacy. Id. at 485.

Lanham Act. “The circuit courts have established

a variety of tests” for determining whether foreign

conduct has sufficient domestic effect to be action-

able under the Lanham Act. McBee v. Delica Co.,

417 F.3d 107, 117 (1st Cir. 2005). Some courts re-

quire a showing that foreign conduct has “substan-

tial” or “significant” effect on U.S. commerce, see Int7

Cafe, SAL. v. Hard Rock Cafe Intl (U.S.A.), 252

F.3d 1274. 1289 (11th Cir. 2001) (per curiam); Atlan-

tic Richfield Co. v. Arco Globus Intl Co., 150 F.3d

189, 192 (2d Cir. 1998); Nintendo of Am., Inc. v. Aer-

opower Co., 34 F.3d 246, 250 (4th Cir. 1994), while

others have explicitly disagreed, holding that “some

effect may be sufficient.” Am. Rice, Inc. v. Arkansas

Rice Growers Co-Op. Ass’n, 701 F.2d 408, 414 n.8

(5th Cir. 1983); Wells Fargo & Co. v. Wells Fargo

Express Co., 556 F.2d 406, 428 (9th Cir. 1977). The

13

First Circuit has suggested a sliding scale: Where

the purported infringer is not a U.S. citizen, the con-

duct must have a “substantial effect,” McBee, 417

F.3d at 120, but for citizens, “a lesser showing of

domestic effects” may be enough. /d. at 118. Fur-

ther complicating the analysis, “[t]he case law has

also made clear that even indirect effects may count

as substantial.” Comment, The Antitrust Model of

Extraterritorial Trademark Jurisdiction: Analysis

and Predictions After F. Hoffmann-La Roche, 20

Emory Int'l L. Rev. 651, 662-63 (2006).

Securities Law. “Different circuits have applied

different standards in determining whether an al-

leged nexus to the United States is sufficient to sup-

port jurisdiction” under the securities laws. In re

Enron Corp. Sec., Derivative & ERISA Litig., No.

MDL-1446, 2005 WL 1798423, at *4 (S.D. Tex. July

26, 2005). Some courts have required a showing of

“substantial adverse effect” on American investors.

Robinson v. TCI/US W. Cable Commce'ns Inc., 117

F.3d 900, 905 (5th Cir. 1997). Others have held that

the harm must not only be “substantial,” but “fore-

seeable” too. Mak v. Wocom Commodities Lid., 112

F.3d 287, 289-90 (7th Cir. 1997). Some courts have

held, without significant elaboration, that

“[t]ransactions with only remote and indirect effects

in the United States do not qualify as substantial.”

North South Fin. Corp. v. Al-Turki, 100 F.3d 1045,

1051 (2d Cir. 1996). “[T]he true scope of the effects

test has never been adequately defined” in this con-

text, “and it has the potential to be extremely broad.”

W. Barton Patterson, Note, Defining the Reach of the

Securities Exchange Act: Extraterritorial Application

14

of the Antifraud Provisions, 74 Fordham L. Rev. 213,

222-23 (2005).

RICO. Given the degree of confusion the “effects”

test has engendered in every other field, it is unsur-

prising that its application to RICO has created con-

flict. Cf. Poulos v. Caesars World, Inc., 379 F.3d 654,

663-64 (9th Cir. 2004) (looking to antitrust and secu-

rities cases to apply the “effects” test to RICO).

The D.C. Circuit concluded that petitioner’s con-

duct overseas—privately supplying research to

Brown & Williamson, founding international organi-

zations that do not operate in the United States,

App. 59a-60a—resulted in the “direct” and “foresee-

able” (id. 59a) “dece[ption of] American consumers.”

Id. at 6a. But other courts of appeals have been far

more restrained in their application of the “effects”

test. In Butte Mining PLC v. Smith, 76 F.3d 287

(1996), by contrast, the Ninth Circuit held that the

plaintiffs had not “alleged any effect” (id. at 290) to

justify applying RICO to a fraud committed against

one British and several domestic corporations, al-

though domestically purchased U.S. assets were the

subject of the fraud, two defendants were U‘S. citi-

zens, and at least one major stockholder of the de-

frauded corporation was American. Id. at 290-91.

The court held RICO did not apply because the steps

taken domestically were “merely preparatory,” id. at

291, but offered no guidance for how to distinguish

“preparatory” conduct from that which would justify

haling foreign defendants into U.S. courts.

The application of the “effects” test is sufficiently

uncertain that courts have reached diametrically op-

posed conclusions based on virtually indistinguish-

15

able conduct. In Republic of the Philippines v. Mar-

cos, 862 F.2d 1355 (1988), for example, the en banc

Ninth Circuit held that the government of the Phil-

ippines could maintain a RICO action against its

former president based on the effect of his domestic

investment of assets fraudulently obtained abroad,

because “[t]he effect on the commerce of the United

States of * * * bringing stolen property into the coun-

try is palpable.” Jd. at 1358. The Fifth Circuit, how-

ever, held a Mexican corporation could not use RICO

to sue its former chairman, who, like Ferdinand

Marcos, was accused of “convert{ing]” his employer's

assets and using them to purchase property in the

United States. Aerovias de Mexico, S.A. v. De

Prevotsin, No. 99-41162, 2000 WL 992495, at *1

(June 29, 2000) (per curiam). While acknowledging

that “some of the proceeds of the allegedly fraudu-

lent activity may have been used to procure property

in the United States,” the court held that effect was

so “‘far removed from the consummation of the fraud

[that it] will not suffice to establish jurisdiction.”

Id. (quoting North South Fin., 100 F.3d at 1051).

Similarly, in Renta, the Eleventh Circuit held that

“fijJt is clear that the effects test is not satisfied”

where a foreign bank was looted by a dual Domini-

can and U.S. citizen, although some funds were

transferred to American banks and one of the goals

of the scheme “was enrichment of an American en-

tity * * * controlled by an American defendant.” 530

F.3d at 1352.4

‘ It would be no answer, even if true, that the courts’ differ-

ent tests refiect immaterial variations with little practical ef-

fect. As the House Judiciary Committee recognized in enacting

16

2. The confusion that attends every application of

the “effects” test reveals an important truth about its

basic nature: The test is incapable of consistent or

predictable application. See, eg., Austen Parrish,

The Effects Test: Extraterritoriality’s Fifth Business,

61 Vand. L. Rev. 1455, 1461 (2008) (noting that

“courts have reached contrary results on nearly iden-

tical facts”). And because in a global economy, “eve-

rything affects everything,” 1B Phillip E. Areeda &

Herbert Hovenkamp, Antitrust Law 4 270, at 255

(3d ed. 2006), the “effects” test “provides an almost

limitless breadth” to the exercise of extraterritorial

jurisdiction. Ellen S. Podgor, A New Dimension to

the Prosecution of White Collar Crime: Enforcing Ex-

traterritorial Social Harms, 37 McGeorge L. Rev. 83,

98 (2006); accord Jonathan Turley, “When in Rome”:

Multinational Misconduct and the Presumption

Against Extraterritoriality, 84 Nw. U. L. Rev. 598,

611 (1990) (noting that use of the “effects” test has

“resulted in a sharp rise in extraterritorial actions”).

3. Inquiry into whether foreign conduct “has a

‘substantial effect on United States commerce’ is

highly fact-dependent.” Comment, 20 Emory Int'l L.

Rev. at 662. Tests whose application “turn[s] on a

welter of specific facts” are “inherently unpredict-

able” and “present powerful incentives for increased

FTAIA despite assurances that there was “no significant incon-

sistency” in the application of the “effects” test, H.R. Rep. No.

97-686, at 5-6, reprinted in 1982 U.S.C.C.A.N. at 2490-91, even

uncertainly in the formulation of the test is harmful: “Busi-

nessmen and * * * counsel cannot safely ignore the current dif-

ferences in formulation.” Jd. at 6, reprinted at 1982

U.S.C.C.A.N. at 2491.

17

litigation on the jurisdictional issue itself.” Zoelsch

v. Arthur Andersen & Co., 824 F.2d 27, 32 n.2 (D.C.

Cir. 1987) (Bork, J.). As this Court recently ob-

served, “[c]lomplex jurisdictional tests complicate a

case, eating up time and money as the parties liti-

gate, not the merits of their claims, but which court

is the right court to decide those claims.” Hertz

Corp. v. Friend, No. 08-1107, slip op. at 15 (Feb. 23,

2010). Even if the extraterritoriality inquiry is not

jurisdictional, those concerns are squarely impli-

cated by the “effects” test. Such fact-intensive de-

terminations are not amenable to judgment on the

pleadings, so that parties can promptly determine

whether a suit will proceed, see, e.g., Filetech S.A. v.

France Telecom S.A., 157 F.3d 922, 932 (2d Cir.

1998), and may require detailed discovery into a host

of subjects, including myriad potential economic ef-

fects. See Laker, 731 F.2d at 924 (in considering ef-

fect of airlines’ antitrust conspiracy, considering

presence of U.S. travelers in relevant market, loca-

tion aircraft were built, means of financing, and citi-

zenship of debtholders).

Thus, foreign defendants will be subjected to the

burdens of intrusive discovery, pretrial litigation,

and possibly trial, even before a plaintiffs claims can

be determined to be extraterritorial. In complex liti-

gation, “the cost of pretrial discovery * * * can be so

steep as to coerce a settlement on terms favorable to

the plaintiff even when his claim is very weak.”

Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. 2009)

(Posner, J.). The “danger of vexatiousness” is espe-

cially strong in RICO cases given “the presence of a

treble damages provision.” Intl Data Bank, Lid. v.

18

Zepkin, 812 F.2d 149, 153 (4th Cir. 1987) (internal

quotations and citation omitted). Moreover, subject-

ing a company to intrusive discovery and extensive

pretrial litigation may well impose burdens inconsis-

tent with the policies of its home nation. See North

South Fin., 100 F.3d at 1052. This is a critical con-

cern because the vast majority of RICO litigation is

initiated not by the government, but by private

plaintiffs seeking treble damages. See generally Jo-

seph P. Griffin, Extraterritoriality in U.S. and EU

Antitrust Enforcement, 67 Antitrust L.J. 159, 194

(1999) (noting private plaintiffs often do not “exer-

cise the degree of self-restraint and consideration of

foreign governmental sensibilities” as the govern-

ment).

4. The use of such a vague and manipulable stan-

dard also deters beneficial commerce. A test as mal-

leable as the “effects” test makes it impossible for

legitimate foreign businesses “to determine in ad-

vance whether their activities are likely to subject

them to [suit]” in U.S. courts. Note, Predictability

and Comity: Toward Common Princtples of Extrater-

ritorial Jurisdiction, 98 Harv. L. Rev. 1310, 1321

(1985). As this Court recently observed, “[s]imple

jurisdictional rules also promote greater predictabil-

ity. Predictability is valuable to corporations making

business and investment decisions.” Hertz Corp.,

slip op. 16. The risk of protracted litigation and ru-

inous damage judgments deters legitimate busi-

nesses from engaging in activities that could subject

them to suit here, “discouraging foreign investment

in United States businesses” and inhibiting the flow

of goods and capital. Br. of the United Kingdom at

19

25, Morrison v. Nat'l Australia Bank Lid., No. 08-

1191. “The need for predictability suggests that a

jurisdictional test should be susceptible of consistent

application,” Note, 98 Harv. L. Rev. at 1321, which

the “effects” test plainly is not.

These are valid considerations when construing a

statute used overwhelmingly for private litigation.

Mindful of “the practicalities of RICO litigation,”

Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,

483 U.S. 143, 153 (1987), this Court adopted a uni-

form statute of limitations for RICO lawsuits to

“avoid intolerable ‘uncertainly and time-consuming

litigation.’” Id. at 150 (quoting Wilson v. Garcia,

471 U.S. 261, 272 (1985)). “The federal interests in

uniformity, certainty, and the minimization of un-

necessary litigation” (Wilson, 471 U.S. at 275) like-

wise strongly counsel against using the “effects” test

to determine RICO’s extraterritorial application.

C. A Straightforward Application Of This

Court’s Precedents Confirms That RICO

Does Not Apply Extraterritorially

1. In determining whether Congress intended a

statute to have extraterritorial application, courts

“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.’” Aramco, 499 U.S. at 248

(quoting Foley Bros., 336 U.S. at 285). Unlike many

criminal statutes,5 RICO “is silent as to any extra-

5 See, e. g., 18 U.S.C. § 112(a), (e) (protection of internation-

ally protected person outside U.S.); id. § 175(a) (biological

20

territorial application.” North South Fin., 100 F.3d

at 1051. Tellingly, “Congress failed to provide any

mechanisms for overseas enforcement” of RICO.

Aramco, 499 U.S. at 256. For example, RICO’s civil

investigative demand provisions (see 18 U.S.C.

§ 1968) contemplate only domestic application, in

that they can be enforced and challenged only in the

“judicial district in which such person [served with a

demand] resides, is found, or transacts business.”

Id. § 1968(g), (h). RICO makes no provision for ser-

vice of process in a foreign country. See Pet. 15-16,

19 & n.7. And it is “reasonable to conclude that had

Congress intended [RICO] to apply overseas, it

would have addressed the subject of conflicts with

foreign laws and procedures.” Aramco, 499 U.S. at

256.

weapon offenses outside U.S.); id. § 229(a), (c) (chemical

weapon offenses outside U.S.); id. § 878(a), (d) (threats against

internationally protected person outside U.S.); id. § 1091(a)-(c),

(d)(5) (genocide outside U.S.); id. §1116(c) (murder or at-

tempted murder of internationally protected person outside

U.S.); id. § 1201(a)(1) (kidnapping where victim transported in

foreign commerce); id. § 1201(a)(2), (3) (kidnapping where act

against victim takes place in special maritime and territorial

jurisdiction or special aircraft jurisdiction of U.S.); id. § 1201(e)

(kidnapping of “an internationally protected person” outside

U.S.); id. § 1203(b) (hostage taking outside US.); id § 1596

(human trafficking offenses outside U-S.); id. §§ 1651-53 (piracy

on high seas); id. § 2331 (terrorist acts abroad against U.S. na-

tionals); 49 U.S.C. § 46502(b) (aircraft piracy outside special

aircraft jurisdiction of U.S.). Foreign nationals may be prose-

cuted for numerous federal crimes committed within the “spe-

cial maritime and territorial jurisdiction of the United States,”

see, e,g., 18 U.S.C. § 113 (assault); id. § 114 (maiming), which is

explicitly defined to include specified areas outside the United

States. Id. at § 7.

21

The absence of even rudimentary provisions to ac-

commodate RICO’s application abroad not only con-

firms that Congress did not intend the statute to ap-

ply extraterritorially; it also illustrates how the pre-

sumption against extraterritoriality ‘“protect/s]

against unintended clashes between our laws and

those of other nations.” Aramco, 499 U.S. at 248.

Requiring Congress to speak clearly before a statute

will be applied extraterritorially ensures it has given

its considered judgment to implementation overseas

so the statute “provid[fes] just the sort of nuanced

specificity and limitations” required to avoid conflict.

Einer Elhauge, Statutory Default Rules: How to In-

terpret Unclear Legislation 205-06 (2008). Congress

must make the many difficult foreign-relations

judgments necessary to implement a complex stat-

ute, id., rather than having courts resolve them on

an ad hoc basis through litigation.

2. Finally, RICO’s legislative history confirms

that Congress did not intended it to apply extraterri-

torially.6 Congress enacted the Organized Crime

Control Act of 1970 (Title [IX of which was RICO) as

the culmination of several years of federal investiga-

tions aud congressional hearings into crime in Amer-

ica. A seminal document in this effort was the 1967

report of the President’s Commission on Law En-

forcement and the Administration of Justice, The

Challenge of Crime in a Free Society (‘Report’),

6 This Court has repeatedly looked to legislative history in

interpreting RICO. See, e.g., Rotella v. Wood, 528 U.S. 549, 557

(2000); Reves v. Ernst & Young, 507 U.S. 170, 179-83 (1993);

H..J. Inc. v Northwestern Bell Tel. Co., 492 U.S. 229, 238-39

(1989).

22

which provided much of the factual foundation for,

and the recommendations that were embodied in,

the Organized Crime Control Act. See 115 Cong.

Rec. 5877 (1969); id. at 9951. It is therefore telling

that the report scarcely mentions areas outside the

United States other than as a source for narcotics

sold domestically. Report at 217, 220. The Report

emphasized that two dozen “[ojrganized criminal

groups are known to operate in all sections of the

Nation,” Report 191-92, concluding that “[o]rganized

crime in its totality thus consists of these 24 groups

allied with other racket enterprises to form a loose

confederation operating in large and small cities.”

Id. at 193 (emphasis added). Floor debates on “the

organized crime problem in the United States,” 116

Cong. Rec. 35,295 (1970) (statement of House spon-

sor Rep. Poff), focused on the “enemy within.” See

115 Cong. Rec. 5875 (statement of Sen. McClellan).

It is thus unsurprising that the Organized Crime

Control Act, like other bills offered on the subject,

was described as “fa]n Act relating to the control of

organized crime in the United States.” Pub. L. No.

91-452, 84 Stat. 922 (Oct. 15, 1970) (emphasis

added); see also 116 Cong. Rec. 31,914 (1970) (H.R.

19215); id. at 32,347 (H.R. 19340). See generally

United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631

(1818) (Marshall, C.J.) (declining to apply a provi-

sion entitled “an act for the punishment of certain

crimes against the United States” to foreign nation-

als on the high seas, in part because the title “fur-

nish[es] some aid in showing what was in the mind

of the legislature”). The Act made its explicit goal

the elimination of “organized crime activities in the

23

United States.” 84 Stat. 923.7 The members empha-

sized that “[oJur attack must be nationwide,” 115

Cong. Rec. 10,712 (statement of Sen. sponsor, Joseph

Tydings), because “[o]nly a nationally directed cam-

paign against organized crime—including legislation

such as [this]—can contain this national menace.”

116 Cong. Rec. 819 (1970) (statement of Sen. Scott);

accord 116 Cong. Rec. 35,296 (statement of Rep.

Poff) (addressing organized crime is “the highest pri-

ority in the ordering of our domestic affairs”). The

provisions of RICO were tailored to fit the problem.

Thus, for example, Congress provided for nationwide

service of process to address “the nationwide nature

of the activity of organized crime.” S. Rep. No. 91-

617, at 161 (1969).8

It is striking that, in hundreds if not thousands of

pages of legislative history, there is scarcely any ref-

erence to activity outside the United States aside

from passing references to the foreign origins of nar-

cotics, 115 Cong. Rec. 5874 (1969), and the Sicilian

organizations that served as models for some Ameri-

can groups, 116 Cong. Rec. 18,913 (1970)—much less

any reference to foreign enforcement efforts. It is

difficult to escape the conclusion that if Congress

7 It would have been a simple matter for Congress to express

a wish to address “the effect of foreign organized crime in the

United States,” see Michael Goldsmith & Vicki Rinne, Civil

RICO, Foreign Defendants, and “ET,” 73 Minn. L. Rev. 1023,

1077 (1989). Its failure to do so is telling.

8 Although Congress recognizes that RICO does not provide

for international service of process, see 134 Cong. Rec. 22,374

(1988) (statement of Rep. Conyers), efforts to amend RICO to

provide for it have failed. See, e.g., S.1523, 100th Cong. (1987);

H.R. 2983, 100th Cong. (1987).

24

had intended RICO to apply extraterritorially, “there

would have been at least some mention of it in the

legislative history, even if not in the statute.”

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 490

(1985).9

® Nor can it be maintained that the Congress that enacted

RICO believed that regulation of foreign corduct with domestic

effects was not “extraterritorial.” The following year, the con-

greasionally chartered National Commission on Reform of Fed-

eral Criminal Laws proposed codifying the circumstances under

which there would be “extraterritorial jurisdiction” over crimes,

and its proposal included offenses with such obvious domestic

effects as “entry of persons or property into the United States.”

National Commission on Reform of Federal Criminal Laws,

Final Report: A Proposed New Federal Criminal Code § 208e),

at 21 (1971). Tellingly, among the eight proposed categories,

there was no category for foreign actions having domestic ef-

fects. See also The Criminal Justice Reform Act of 1975, S. 1,

94th Cong., lst Sess. § 204 (1975).

25

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

MICHAEL A. HEIDLER JOHN P. ELWOOD

VINSON & ELKINS LLP PAULB.SPELMAN

2801 Via Fortuna VINSON & ELKINS LLP

Suite 100 The Willard Office Building

Austin, Texas 78746 1455 Pennsylvania Avenue,

(512) 542-8579 NW, Suite 600

Washington, DC 20004

(202) 639-6518

jelwood@velaw.com

Counsel for Amicus Curiae

MARCH 2010