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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1617%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1054

## Text

‘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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1617%3A06. Public record. Not legal advice.