# Extraterritorial Application of American Criminal Law

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URL: https://www.frixlaw.com/law-library/documents/crs%3A94-166

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** March 21, 2023
- **Citation:** 94-166

## Text

Extraterritorial Application of
American Criminal Law
Updated March 21, 2023

Congressional Research Service
https://crsreports.congress.gov
94-166

Extraterritorial Application of American Criminal Law

Summary
Criminal law is usually territorial. It is a matter of the law of the place where it occurs.
Nevertheless, a number of American criminal laws apply extraterritorially outside of the United
States. Application is generally a question of legislative intent, express or implied. There are two
exceptions. First, the statute must come within Congress’s constitutional authority to enact.
Second, neither the statute nor its application may violate due process or any other constitutional
prohibition.
Claims of implied extraterritoriality must overcome additional obstacles. Federal laws are
presumed to apply only within the United States, unless Congress clearly provides otherwise.
Moreover, the courts will also presume that Congress intends its statutes to be applied in a
manner that does not offend international law.
Historically, in order to overcome these presumptions, the lower federal courts have read certain
vintage Supreme Court cases broadly. The Supreme Court’s pronouncements in Morrison v.
National Australia Bank Ltd. and RJR Nabisco v. European Community, however, suggest a far
more restrictive view.
Although the crimes over which the United States has extraterritorial jurisdiction may be many,
so are the obstacles to their enforcement. For both practical and diplomatic reasons, criminal
investigations within another country require the acquiescence, consent, or preferably the
assistance, of the authorities of the host country. The United States has mutual legal assistance
treaties with several countries designed to formalize such cooperative law enforcement assistance.
It has agreements for the same purpose in many other instances. Cooperation, however, may
introduce new obstacles. Searches and interrogations carried out jointly with foreign officials,
certainly if they involve Americans, must be conducted within the confines of the Fourth and
Fifth Amendments. And the Sixth Amendment imposes limits upon the use in American criminal
trials of depositions taken abroad.
The nation’s more recently negotiated extradition treaties address some of the features of earlier
agreements which complicate extradition for extraterritorial offenses, that is, dual criminality
requirements; reluctance to recognize extraterritorial jurisdiction; and exemptions on the basis of
nationality or political offenses. To facilitate the prosecution of federal crimes with extraterritorial
application Congress has enacted special venue, statute of limitations, and evidentiary statutes. To
further cooperative efforts, it enacted the Foreign Evidence Request Efficiency Act, P.L. 111-79,
which authorizes federal courts to issue search warrants, subpoenas, and other orders to facilitate
criminal investigations in this country on behalf of foreign law enforcement officials.
Despite these cooperative efforts, there has been a dearth of recent case law involving
extraterritorial application of American criminal laws. The disappearance of case law suggests
that the obstacles to extraterritorial investigation and prosecution may have become too
substantial to overcome.

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Extraterritorial Application of American Criminal Law

Contents
Introduction ..................................................................................................................................... 1
Constitutional Considerations ......................................................................................................... 1
Legislative Powers .................................................................................................................... 1
Constitutional Limitations ......................................................................................................... 6
Statutory Construction ............................................................................................................ 10
International Law .............................................................................................................. 12
Current Extent of American Extraterritorial Criminal Jurisdiction ......................................... 16
Federal Law ...................................................................................................................... 16
State Law .......................................................................................................................... 21
Investigation and Prosecution ................................................................................................. 24
Mutual Legal Assistance Treaties and Agreements........................................................... 24
Letters Rogatory ............................................................................................................... 26
Cooperative Efforts ........................................................................................................... 26
Search and Seizure Abroad ............................................................................................... 27
Self-Incrimination Overseas ............................................................................................. 29
Statute of Limitations: 18 U.S.C. § 3292 and Related Matters ......................................... 30
Extradition ........................................................................................................................ 32
Venue ................................................................................................................................ 35
Presentation ....................................................................................................................... 36
Testimony of Witnesses Outside the United States ........................................................... 37
National Security Concerns .............................................................................................. 42
Admissibility of Foreign Documents ................................................................................ 43
Conclusion ..................................................................................................................................... 45
Attachments ................................................................................................................................... 45
Federal Criminal Laws Which Enjoy Express Extraterritorial Application ............................ 45
Special Maritime & Territorial Jurisdiction ...................................................................... 45
Special Aircraft Jurisdiction .............................................................................................. 46
Treaty-Related................................................................................................................... 46
Others ................................................................................................................................ 51
Federal Crimes Subject to Federal Prosecution When Committed Overseas ......................... 56
Homicide ........................................................................................................................... 56
Kidnaping.......................................................................................................................... 61
Assault .............................................................................................................................. 62
Property Destruction ......................................................................................................... 65
Threats .............................................................................................................................. 67
Theft .................................................................................................................................. 68
Counterfeiting ................................................................................................................... 69
Piggyback Statutes ............................................................................................................ 69
Model Penal Code ................................................................................................................... 69
Restatement of the Law Fourth: Foreign Relations Law of the United States ........................ 70
18 U.S.C. § 7. Special Maritime and Territorial Jurisdiction of the United States (text) ........ 72
18 U.S.C. § 3261. Military Extraterritorial Jurisdiction (text) ................................................ 73
18 U.S.C. § 3271. Trafficking in Persons (Text) ..................................................................... 73

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Contacts
Author Information........................................................................................................................ 74

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Introduction
Crime is traditionally proscribed, tried, and punished according to the laws of the place where it
occurs.1 American criminal law applies beyond the geographical confines of the United States,
however, under certain limited circumstances. State prosecution for overseas misconduct is
limited almost exclusively to multi-jurisdictional crimes, that is, crimes where some elements of
the offense are committed within the state and others are committed beyond its boundaries.2 A
number of federal criminal statutes have extraterritorial application, but prosecutions have been
relatively few. Extraterritorial application requires clear evidence of congressional intent.3 It must
constitute the exercise of one or more of Congress’s constitutionally enumerated powers, subject
to any constitutional limitations on the exercise of such powers.4 And generally, it must be
consistent with international law.5 Even when each of these obstacles can be overcome, the
government may be reluctant to prosecute because of practical and legal complications, and
sometimes diplomatic considerations.

Constitutional Considerations
Legislative Powers
The Constitution does not forbid either congressional or state enactment of laws that apply
outside the United States. Nor does it prohibit either the federal government or the states from
prosecuting conduct committed abroad. In fact, several passages suggest that the Constitution
contemplates the application of American law beyond the geographical confines of the United
States. It speaks, for example, of “felonies committed on the high seas,” “offences against the law
of nations,” “commerce with foreign nations,” and of the impact of treaties.6
More specifically, it grants Congress the power “[t]o define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Nations”;7 the power “[t]o regulate
1 Am. Banana Co v. United Fruit Co., 213 U.S. 347, 356 (1909) (“The general and almost universal rule is that the

character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done.”),
overruled on other grounds by Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 704-5 (1962); see
also Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 255 (2010) (“When a statute gives no clear indication of an
extraterritorial application, it has none.”); RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 335 (2016). This report is
available in an abridged version, stripped of its attachments, footnotes, and most of its citations to authority or
attribution, as CRS Report RS22497, Extraterritorial Application of American Criminal Law: An Abbreviated Sketch,
by Charles Doyle.
2 In the parlance of international law, the term “states” ordinarily refers to nation states. Here and hereinafter, however,
the term refers to the several states of the United States, unless otherwise indicated or apparent from the context found
within a quotation.
3 RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 404 (AM. L. INST. 2018) (“Courts in the United States
interpret federal statutory provisions to apply only within the territorial jurisdiction of the United States unless there is a
clear indication of congressional intent to the contrary.”).
4 Id. § 403.
5 Id. § 406 (“Where fairly possible, courts in the United States construe federal statutes to avoid conflict with
international law governing jurisdiction to prescribe. If a federal statute cannot be so construed, the federal statute is
controlling as a matter of federal law.”).
6 U.S. CONST. art. I, § 8, cls. 10, 3; id. art. VI, cl. 2. Cf. United States v. Baston, 818 F.3d 651, 666 (11th Cir. 2016)
(“Congress’s power to enact extraterritorial laws is not limited to the Offences Clause.”).
7 U.S. CONST. art. I, § 8, cl. 10; see generally; Cong. Research Serv., The Constitution of the United States of America:
Analysis and Interpretation, S. DOC. NO. 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C10-1-

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commerce with foreign Nations”;8 and “[t]o make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer thereof.”9
The power to define and punish felonies on the high seas and against the law of nations, coupled
with the power under the Necessary and Proper Clause, have been referenced in the past as the
source of Congress’s authority to enact extraterritorial criminal legislation primarily in a maritime
context.10 The powers have been understood to permit overseas application of federal criminal
law, even extending to an American vessel at anchor well within the territory of another nation.11
Congress’s commerce powers are three; one, that vests it with power “[t]o regulate Commerce
with foreign Nations,”12 affords it apparent authority to enact criminal statutes with
extraterritorial application. The other two Commerce Clause powers permit Congress to regulate
interstate commerce and commerce with the Indian tribes. The courts often speak of these two in

1/ALDE_00001070/; Alex H. Loomis, The Power to Define Offenses Against the Law of Nations, 40 HARV. J. L. &
PUB. POL’Y 417 (2017); Beth Stephens, Federalism and Foreign Affairs: Congress’s Power to “Define and Punish . . .
Offenses Against the Law of Nations,” 42 WM. & MARY L. REV. 447 (2000).
8 U.S. CONST. art. I, § 8, cl. 3; see generally; Cong. Research Serv., The Constitution of the United States of America:
Analysis and Interpretation, S. DOC. NO. 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C3-11/ALDE_00001057/.
9 U.S. CONST. art. I, § 8, cl. 18; see generally; Cong. Research Serv., The Constitution of the United States of America:
Analysis and Interpretation, S. DOC. NO. 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C181/ALDE_00001242/.
10 United States v. Alarcon Sanchez, 972 F.3d 156, 166–68 (2d Cir. 2020) (rejecting an argument that this
constitutional power applies only on the “high seas,” on the grounds that “Congress’s regulation of drug trafficking on
the high seas would be undermined if it could not reach conspiratorial conduct in a foreign territory that is integral to
that trafficking”); United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1378–79 (11th Cir. 2011) (upholding
application of the Drug Trafficking Vessel Interdiction Act (18 U.S.C. § 2285) under the Piracy, High Seas, and Law of
Nations Clause); United States v. Matos-Luchi, 627 F.3d 1, 3 (1st Cir. 2010) (noting Congress’s invocation of the
clause to enact the Maritime Drug Law Enforcement Act (46 U.S.C. § 70501 et seq.)); United States v. Shi, 525 F.3d
709, 721–22 (9th Cir. 2008) (noting Congress’s authority under the clause and under the Necessary and Proper Clause
(U.S. CONST. art. I, § 8, cl. 18) (with respect to legislation carrying into execution the President’s treaty powers) to
enact 18 U.S.C. § 2280 (relating to maritime violence)).
11 United States v. Flores, 289 U.S. 137, 159 (1933) (Flores, an American seaman, was convicted of murdering another
American aboard an American ship moored 250 miles up the Congo River (well within the territorial jurisdiction of the
then Belgian Congo) under the federal statute proscribing murder committed within the special maritime jurisdiction of
the United States.).
12 U.S. CONST. art. I, § 8, cl. 3.

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exceptionally sweeping terms.13 The Foreign Commerce Clause may be even more far-reaching,14
although there is certainly support for a contrary view.15
The federal circuits are divided over the scope of the Foreign Commerce Clause. Few dispute the
congressional prerogative to regulate conduct occurring “in” foreign commerce,16 but consensus
disappears when the question involves conduct that may “affect” foreign commerce. “Some
circuits have used the familiar Interstate Commerce Clause framework from United States v.
Lopez, 514 U.S. 549 [(1995)] . . . and concluded that Congress has broad power to regulate
overseas commercial conduct that has a ‘substantial effect’ on commerce with the United

United States v. Lara, 541 U.S. 193, 200 (2004) (“The ‘central function of the Indian Commerce clause,’ we have
said, ‘is to provide Congress with plenary power to legislate in the field of Indian affairs.’”) (quoting Cotton Petroleum
Corp. v. New Mexico, 490 U.S. 163, 192 (1989)); Gonzales v. Raich, 545 U.S. 1, 16–17 (2005) (There are “three
general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress
can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the
instrumentalities of interstate commerce, and persons or things in interstate commerce. Third, Congress has the power
to regulate activities that substantially affect interstate commerce. . . . [W]hen a general regulatory statute bears a
substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no
consequence”) (citations and internal quotation marks omitted)); Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519,
536–37 (2012) (“The power over activities that substantially affect interstate commerce can be expansive. That power
has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for
himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.”).
14 Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 46 (1974) (“[T]he plenary authority of Congress over both interstate and
foreign commerce is not open to dispute”); United States v. 12,200-Ft. Reels of Super 8MM Film, 413 U.S. 123, 125
(1973) (“The Constitution gives Congress broad, comprehensive powers ‘[t]o regulate Commerce with foreign
Nations’”); United States v. Baston, 818 F.3d 651, 668 (11th Cir. 2016) (“Indeed, the Supreme Court has suggested that
‘the power to regulate commerce . . . when exercised in respect of foreign commerce may be broader than when
exercised as to interstate commerce.’ ‘Although the Constitution grants Congress power to regulate commerce with
foreign Nations and among the several States in parallel phrases,’ the Supreme Court has explained, ‘there is evidence
that the Founders intended the scope of the foreign commerce power to be the greater.’”) (quoting Atl. Cleaners &
Dyers v. United States, 286 U.S. 427, 434 (1932); Japan Line, Ltd. v. Cnty. of Los Angeles, 441 U.S. 434, 448 (1979)).
15 United States v. Yunis, 681 F. Supp. 896, 907 n.24 (D.D.C. 1988) (“Rather than relying on Congress’s direct
authority under Art. I Section 8 to define and punish offenses against the law of nations, the government contends that
Congress has authority to regulate global air commerce under the commerce clause. U.S. CONST. art. I, § 8, c. 3. The
government’s arguments based on the commerce clause are unpersuasive. Certainly Congress has plenary power to
regulate the flow of commerce within the boundaries of United States territory. But it is not empowered to regulate
foreign commerce which has no connection to the United States. Unlike the states, foreign nations have never
submitted to the sovereignty of the United States government nor ceded their regulatory powers to the United States.”).
See also Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of
National and International Law, 48 HARV. INT’L L. J. 121, 149–50 (2007) (“Furthermore, as a matter of original intent,
the idea that the Foreign Commerce Clause might license Congress with the broad ability to extend U.S. laws
extraterritorially into the jurisdictions of other nations would have been anathema to the founders given their driving
belief in the sovereign equality of states and its accompanying rigid concept of territoriality—which to borrow yet
again from Chief Justice Marshall held that ‘no [state] can rightfully impose a rule on another[,] [each] legislates for
itself, but its legislation can operate on itself alone.’ Recall the reason why Congress was allowed to legislate
extraterritorially over piracy absent a U.S. connection even though the act technically occurred within another state’s
territory: the conduct was prohibited as a matter of the law of nations, not of U.S. law, and thus the United States was
not imposing its own rule on other nations, but merely enforcing (on their behalf) a universal norm when it prosecuted
pirates. No such analysis applies to extraterritorial projections of Congress’ Foreign Commerce Clause power.”)
(brackets in original) (quoting Antelope, 23 U.S. (10 Wheat.) 66, 122–23 (1825)).
16 United States v. Pendleton, 658 F.3d 299, 311 (3d Cir. 2011).
13

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States.”17 Still others “permit the regulation of foreign conduct with less of an effect on the
United States.”18
Courts in some cases have opted for a middle ground. One found that Congress did indeed have
the legislative power to proscribe illicit overseas commercial sexual activity by an American who
had traveled from the United States to the scene of the crime.19 Confronted with a vigorous
dissent, the panel’s majority expressly chose to avoid the issue of whether it would have reached
the same result if the defendant had not agreed to pay for his sexual misconduct or if there were
not some other commercial factor.20 Another court elected to construe the statute before it
narrowly and thereby avoided the necessity of ruling on the scope of Congress’s power under the
foreign commerce clause.21 A third held that Congress’s authority to regulate foreign commerce
extended to the regulation of the channels of U.S. foreign commerce, but it left for another day
the questions of whether the domestic effect on commerce prerogative has a foreign commerce
counterpart or whether foreign commerce issues should be judged by standards of their own.22 Yet
another circuit suggested that the Foreign Commerce Clause cannot be read to encompass the
authority to regulate those aspects of foreign commerce that “substantially affect” the commerce
of the United States with foreign nations. Thus, it concluded the Foreign Commerce Clause does

17 In re Sealed Case, 936 F.3d 582, 591 (D.C. Cir. 2019) (citing United States v. Durham, 902 F.3d 1180, 1192–93

(10th Cir. 2018); United States v. Baston, 818 F.3d 651, 667–68 (11th Cir. 2016); Pendleton, 658 F.3d at 308); United
States v. Lindsay, 931 F.3d 852, 862 (9th Cir. 2019).
18 Sealed Case, 936 F.3d at 591; United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006) (“requiring only a
‘constitutionally tenable nexus with foreign commerce’”) (interpreting a later amended provision); but see United
States v. Davila-Mendoza, 972 F.3d 1264, 1277 (11th Cir. 2020) (holding that application of MDLEA to foreign
nationals within the territorial waters of another nation exceeded Congress’s authority under the Foreign Commerce
Clause).
19 Clark, 435 F.3d at 1103 (“Instead of slavishly marching down the path of grafting the interstate commerce
framework onto foreign commerce, we step back and take a global, commonsense approach to the circumstances
presented here: The illicit sexual conduct reached by the statute expressly includes commercial sex acts performed by a
U.S. citizen on foreign soil. This conduct might be immoral and criminal, but it is also commercial. Where, as in this
appeal, the defendant travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts,
his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under
the Foreign Commerce Clause.”) (interpreting a later amended provision).
20 Id. at 1109–10 (“At the outset, we highlight that § 2423(c) contemplates two types of ‘illicit sexual conduct’: noncommercial and commercial. Clark’s conduct falls squarely under the second prong of the definition, which
criminalizes ‘any commercial sex act . . . with a person under 18 years of age.’ 18 U.S.C. § 2423(f)(2). In view of this
factual posture, we abide by the rule that courts have a ‘strong duty to avoid constitutional issues that need not be
resolved in order to determine the rights of the parties to the case under consideration, and limit our holding to
§ 2423(c)’s regulation of commercial sex acts.”) (citation, footnote, and internal quotation marks omitted) (interpreting
a later amended provision).
21 United States v. Weingarten, 632 F.3d 60, 70–71 (2d Cir. 2011) (“We note, finally, that our determination that
§ 2423(b) does not extend to travel occurring wholly between foreign nations and without any territorial nexus to the
United States appropriately avoids the necessity of addressing whether such an exercise of congressional power would
comport with the Constitution. . . . . We note, in addition, that the issue of statutory construction that this case
represents would be substantially different if § 2423(b) prohibited travel for the purpose of engaging in the defined
sexual acts where such travel affects foreign commerce. Section 2423(b), however, prohibits travel in foreign
commerce, and Count Three which involved simply a flight from Belgium, where the defendant resided, to Israel, his
new home, did not constitute such travel.”).
22 United States v. Pendleton, 658 F.3d 299, 311 (3d Cir. 2011) (“[B]ecause the jurisdictional element in § 2423(c)
[travels in foreign commerce] has an ‘express connection’ to the channels of foreign commerce, we hold that it is a
valid exercise of Congress’s power under the Foreign Commerce Clause.); id. 311 n.7 (“Having found that the statute is
constitutional under the first prong of Lopez, we need not address Pendleton’s contention that § 2423(f)(1) does not
survive Morrison’s stringent ‘substantial effects’ test. . . .”) (citation omitted).

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not empower Congress to proscribe noncommercial conduct occurring abroad simply because the
defendant once travelled in foreign commerce.23
Two other circuits, however, favor a more expansive view. The U.S. Court of Appeals for the
Eleventh Circuit has held that Congress’s foreign commerce power at least mirrors the
“channels,” “instrumentalities,” and “substantive effect” components of its interstate commerce
powers.24 The U.S. Court of Appeals for the Fourth Circuit has gone even further and ruled that
the Foreign Commerce Clause embodies not only the “channels” and “instrumentalities”
authority, but also encompasses the power to regulate any “activities that demonstrably affect
[U.S. foreign] commerce.”25
Its own enumerated powers aside, Congress has resorted on countless occasions to its authority to
enact extraterritorial legislation in furtherance of the powers vested in one of the other branches
or in reliance on powers it shares with one of the other branches—through the Necessary and
Proper Clause.26 It has, for instance, regularly called upon the authority deposited with the
President and Congress in the fields of foreign affairs and military activities,27 powers which the
23

United States v. Rife, 33 F.4th 838, 844 (6th Cir. 2022). In Rife, the Sixth Circuit declined to apply the same
expansive framework to the Foreign Commerce Clause that the Supreme Court has applied to the Interstate Commerce
Clause, and instead considered “Congress’s power ‘to regulate Commerce with foreign Nations,’ as that power was
originally understood.” Id. at 844. The Sixth Circuit concluded, however, that Congress had authority under its treaty
implementation power under the Necessary and Proper Clause to enact the statute at issue. Id. at 846.
24 United States v. Baston, 818 F.3d 651, 668 (11th Cir. 2016) (“We need not demarcate the outer bounds of the
Foreign Commerce Clause in this opinion. We can evaluate the constitutionality of [S]ection 1596(a)(2) by assuming,
for the sake of argument, that the Foreign Commerce Clause has the same scope as the Interstate Commerce Clause. In
other words, Congress’s power under the Foreign Commerce Clause includes at least the power to regulate the
‘channels’ of commerce between the United States and other countries, the ‘instrumentalities’ of commerce between
the United States and other countries, and activities that have a ‘substantial effect’ on commerce between the United
States and other countries.”).
25 United States v. Bollinger, 798 F.3d 201, 215–16 (4th Cir. 2015) (“We agree that the Lopez categories provide a
useful starting point in defining Congress’s powers under the Foreign Commerce Clause. Regarding the first two
categories, Congress clearly may regulate (1) ‘the use of the channels of [foreign] commerce,’ and (2) ‘the
instrumentalities of [foreign] commerce, or persons or things in [foreign] commerce. We continue to believe, however
that the third Lopez category—permitting the regulation of ‘activities that substantially affect interstate commerce’—is
unduly demanding in the foreign context. . . . Instead of requiring that an activity have a substantial effect on foreign
commerce, we hold that the Foreign Commerce Clause allows Congress to regulate activities that demonstrably affect
such commerce.”).
26 U.S. CONST. art. I, § 8, cl.18 (“The Congress shall have Power . . . To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.”).
27 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the
several States. . . . He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided
two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors. . . . He . . . shall receive Ambassadors and other public Ministers; [and] he shall
take Care that the Laws be faithfully executed. . . . ” Id. art. II, §§ 2, 3.
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . . ; To establish an uniform
Rule of Naturalization . . . ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water; To raise and support Armies . . . ; To provide and maintain a Navy; To make Rules for
the Government and Regulation of the land and naval Forces; . . . [and] To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.” Id. art. I, § 8, cls.1, 4, 11–14, 18.
See, e.g., United States v. Lawrence, 727 F.3d 386, 396–97 (5th Cir. 2013) (holding that enactment of extraterritorial
applicable legislation proscribing importing or exporting controlled substances fall with the scope of Congress’s
authority to enact legislation necessary and proper for the implementation of the Single Convention on Narcotic
Drugs); United States v. Rife, 33 F.4th 838, 848 (6th Cir. 2022) (concluding that Congress’s treaty implementation
power afforded it authority to proscribe overseas sexual abuse of children in execution of the Optional Protocol on

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courts have described in particularly wide-ranging terms.28 The Supreme Court observed that
there are “differences between the powers of the federal government in respect of foreign or
external affairs and those in respect of domestic or internal affairs.”29 And as a consequence,
“[t]he broad statement that the federal government can exercises no powers except those
specifically enumerated in the Constitution, and such implied powers as are necessary and proper
to carry into effect the enumerated powers, is categorically true only in respect of our internal
affairs.”30 Moreover, “[i]t results that the investment of the federal government with the powers of
external sovereignty did not depend upon the affirmative grants of the Constitution.”31

Constitutional Limitations
Nevertheless, the powers granted by the Constitution are not without limit. The clauses
enumerating Congress’s powers carry specific and implicit limits which govern the extent to
which the power may be exercised overseas.32 Other limitations appear elsewhere in the
Constitution, most notably in the Due Process Clause of the Fifth Amendment.33 Some limitations
are a product of the need to harmonize potentially conflicting grants of authority. For example,
although the Constitution reserves to the states the residue of governmental powers which it does
not vest elsewhere, the primacy it affords the federal government in the area of foreign affairs
limits the authority of the states in the field principally to those areas where they are acting with
federal authority or acquiescence.34

Child Rights).
28 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315–18 (1936); Ex parte Quirin, 317 U.S. 1, 28–29
(1942); Parker v. Levy, 417 U.S. 733, 756–57 (1974).
29 Curtiss-Wright Export Corp., 299 U.S. at 315.
30 Id. at 315-16.
31 Id. at 318.
32 E.g., United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010) (“Thus, ‘in determining whether the Necessary and
Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the
statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power’”)
(quoting United States v. Comstock, 560 U.S. 126, 134 (2010) and upholding Congress’s authority under the Necessary
and Proper Clause to carrying into execution the President’s treaty power by enacting the Torture Act (18 U.S.C. §§
2340–2340B)); Toth v. United States ex rel. Quarles, 350 U.S. 11, 13–14 (1955) (court martial trial of a civilian for
crimes he allegedly committed in Korea while in the military exceeded the authority granted Congress by Article I,
Section 8, clause14 and Article III, Section 2); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247–48 (1960)
(holding that congressional authority under art. I, § 8, cl.14 to make rules and regulations governing the land and naval
forces did not include authority for the court martial trial of civilian dependents for offenses committed overseas); see
also Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 AM. J. INT’L L.
880, 891–92 (1989) (asserting that the creation of subject matter and personal jurisdiction over an alien defendant for
an offense committed overseas and not otherwise connected to the United States by forcibly bringing him into the
United States is “not clearly within any constitutional grant of power to Congress, and in particular, . . . does not, as
written, come within the power to define and punish offenses against the law of nations”).
33 U.S. CONST. amend. V (“No person shall . . . be deprived of life, liberty, or property without due process of
law. . . .”).
34 Cf. Skiriotes v. Florida, 313 U.S. 69, 77 (1941) (“[W]e see no reason why the State of Florida may not likewise
govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest
and where there is no conflict with acts of Congress”); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (“There
is, of course, no question that at some point an exercise of state power that touches on foreign relations must yield to
the National Government’s policy, given the concern for uniformity in this country’s dealing with foreign nations that
animated the Constitution’s allocation of the foreign relations power to the National Government in the first place.”)
(quotation marks omitted).

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In the area of extraterritorial jurisdiction, the most often cited limitation resides in the Due
Process Clause of the Fifth Amendment. While the enumerated powers may carry specific limits
which govern the extent to which the power may be exercised overseas, the general restrictions of
the Fifth Amendment Due Process Clause have traditionally been mentioned as the most likely to
define the outer reaches of the power to enact and enforce legislation with extraterritorial
application.35
Unfortunately, many of the cases do little more than note that due process restrictions mark the
frontier of the authority to enact and enforce American law abroad.36 Constitutional guarantees of
due process, however, do not apply to everyone. Although American courts that try aliens for
overseas violations of American law must operate within the confines of due process,37 the
Supreme Court has observed that the Constitution’s due process commands do not otherwise
protect aliens abroad who lack any “significant voluntary connection[s] with the United States.”38
Moreover, the Court’s more recent decisions often begin with the assumption that the issues of
extraterritorial jurisdiction come without constitutional implications.39
Nevertheless, due process issues have surfaced in a handful, but growing number, of lower court
decisions relating to extraterritoriality, that endorse one of two related lines of authority. First, a
few courts describe a due process requirement that demands some nexus between the United
States and the circumstances of the offense.40 Occasionally, they look to international law
35 U.S. CONST. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law

. . .”).
36 See, e.g., United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003); United States v. Thomas, 893 F.2d 1066, 1068
(9th Cir. 1990); United States v. Quemener, 789 F.2d 145, 156 (2d Cir. 1986); United States v. Henriquez, 731 F.2d
131, 134–35 nn.4, 5 (2d Cir. 1984); United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983); United States v.
Howard-Arias, 679 F.2d 363, 371 (4th Cir. 1982).
37 United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J., concurring) (“I do not mean to imply,
and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The
United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings
are governed by the Constitution. All would agree, for instance that the dictates of the Due Process Clause of the Fifth
Amendment protect the defendant”).
38 Id. at 268–71 ( “The global view . . . of the Constitution is also contrary to this Court’s decisions in the Insular
Cases, which held that not every constitutional provision applies to governmental activity even where the United States
has sovereign power. . . . [I]t is not open to us in light of the Insular Cases to endorse the view that every constitutional
provision applies wherever the United States Government exercises its power. Indeed, we have rejected the claim that
aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”).
39 Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010) (“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. This principle represents a canon of construction, or a presumption about a statute’s meaning, rather than
a limit upon Congress’s power to legislate.”) (citation and internal quotation marks omitted); EEOC v. Arabian Am. Oil
Co., 499 U.S. 244, 248 (1991) (“Both parties concede, as they must, that Congress has the authority to enforce its laws
beyond the territorial boundaries of the United States. Whether Congress has in fact exercised that authority in th[is]
[case] is a matter of statutory construction.”) (citation omitted).
40 United States v. Baston, 818 F.3d 651, 669–70 (11th Cir. 2016) (“The Due Process Clause requires at least some
minimal contact between a State and the regulated subject.”) (internal quotation marks omitted); United States v. Rojas,
812 F.3d 382, 393 (5th Cir. 2016); United States v. Medjuck, 156 F.3d 916, 918 (9th Cir. 1998) (“[T]o satisfy the
strictures of due process, the Government [must] demonstrate that there exists a sufficient nexus between the conduct
condemned and the United States such that the application of the statute [to the overseas conduct of an alien defendant]
would not be arbitrary or fundamentally unfair to the defendant.”) (internal quotation marks omitted) (citing United
States v. Davis, 905 F.2d 245, 248–49 (9th Cir. 1990)); United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011)
(“In order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must
be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or
fundamentally unfair.”) (internal quotation marks omitted); United States v. Robinson, 843 F.2d 1, 5–6 (1st Cir. 1988);
see also United States v. Iossifov, 45 F.4th 899, 914 (4th Cir. 2022) (“[H]is conspiracy charges were grounded in

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principles to provide a useful measure to determine whether the nexus requirement has been
met.41 On other occasions, they consider the principles at work in the minimum contacts test for
personal jurisdiction.42 At the heart of these cases is the notion that due process expects that a
defendant’s conduct must have some past, present, or anticipated locus or impact within the
United States before he can fairly be held criminally liable for it in an American court. The
commentators have greeted this analysis with some hesitancy,43 and some courts have simply
rejected it.44
A second line of cases rests on the premise that due process requires notice. The line builds on
concerns over secret laws and vague statutes, the exception to the maxim that ignorance of the
law is no defense.45 Here, indicia of knowledge, of reason to know, of an obligation to know, or of
conduct that was sufficiently tied to the United States. . . . Thus, even assuming that the Fifth Amendment limits
congressional authority to criminalize extraterritorial conduct, Iossifov’s prosecution did not run afoul of those limits
because it was not arbitrary or fundamentally unfair.”).
41 Davis, 905 F.2d at 249 n.2 (“International law principles may be useful as a rough guide of whether a sufficient
nexus exists between the defendant and the United States so that application of the statute in question would not violate
due process. . . . However, danger exists that emphasis on international law principles will cause us to lose sight of the
ultimate question: would application of the statute to the defendant be arbitrary or fundamentally unfair?”); see also
Baston, 818 F.3d at 669 (“Compliance with international law satisfies due process because it puts a defendant ‘on
notice’ that he could be subjected to the jurisdiction of the United States”); United States v. Ibarguen-Mosquera, 634
F.3d 1370, 1378–79 (11th Cir. 2011); United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995).
42 United States v. Zakharov, 468 F.3d 1171, 1177 (9th Cir. 2006) (“Nexus is a constitutional requirement analogous to
‘minimum contacts’ in personal jurisdiction analysis.”).
43 Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV.
1217 (1992); A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation? 35 COLUM. J.
TRANSNAT’L L. 379 (1997); Bret A. Sumner, Comment, Due Process and True Conflicts: The Constitutional Limits on
Extraterritorial Federal Legislation and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 46
CATH. U. L. REV. 907 (1997); Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism
and the Intersection of National and International Law, 48 HARV. INT’L L. J. 121 (2007); Benjamin R. Rosenberg, Due
Process Limitations on the Application of Federal Criminal Law to Crimes Committed Abroad: A Venue-Based
Approach, 24 BERKELEY J. CRIM. L. 101 (2019).
44 In re Sealed Case, 936 F.3d 582, 593–94 (D.C. Cir. 2019) (“We have repeatedly declined, however, to hold that the
Due Process Clause demands such a nexus [to the United States]—or to even resolve ‘whether the Due Process Clause
constrains the extraterritorial application of federal criminal laws’ at all.”) (quoting United States v. Ballestas, 795 F.3d
130, 148 (D.C. Cir. 2015)); Ibarguen-Mosquera, 634 F.3d at 1378–79 (“In determining whether an extraterritorial law
comports with due process, appellate courts often consult international law principles[.] . . . In the past we have held
that the[se]. . . principles have no applicability in connection with stateless vessels because such vessels are
international pariahs’ that have no internationally recognized right to navigate freely on the high seas. Indeed, the law
places no restrictions upon a nation’s right to subject stateless vessels to its jurisdiction”) (internal quotation marks
omitted); United States v. Suerte, 291 F.3d 366, 375 (5th Cir. 2002) (“[T]o the extent the Due Process Clause may
constrain the MDLEA’s extraterritorial reach, that clause does not impose a nexus requirement, in that Congress has
acted pursuant to the Piracies and Felonies Clause”); United States v. Perez-Oviedo, 281 F.3d 400, 403 (3d Cir. 2002)
(“[N]o due process violation occurs in an extraterritorial prosecution under the MDLEA when there is no nexus
between the defendant’s conduct and the United States. . . . Since drug trafficking is condemned universally by lawabiding nations . . . there [i]s no reason for us to conclude that it is ‘fundamentally unfair’ for Congress to provide for
the punishment of a person apprehended with narcotics on the high seas. . . . Perez-Oviedo’s state of facts presents an
even stronger case for concluding that no due process violation occurred. The Panamanian government expressly
consented to the application of the MDLEA . . . . Such consent from the flag nation eliminates a concern that the
application of the MDLEA may be arbitrary or fundamentally unfair.”) (internal quotation marks omitted); United
States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999) (“[D]ue process does not require the government to prove a nexus
between a defendant’s criminal conduct and the United States in a prosecution under the MDLEA when the flag nation
has consented to the application of United States law to the defendants.”).
45 Lambert v. California, 355 U.S. 225, 228–30 (1957) (“The rule that ignorance of the law will not excuse is deep in
our law, as is the principle that of all the powers of local government, the police power is one of the least limitable. On
the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the

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reasonable ignorance of the law’s requirements—some of which are reflected in international
standards—seem to be the most relevant factors. Citizens, for instance, might be expected to
know the laws of their own nation;46 seafarers to know the law of the sea and consequently the
laws of the nation under whose flag they sail; everyone should be aware of the laws of the land in
which they find themselves and of the wrongs condemned by the laws of all nations.47 On the
other hand, the application of an American criminal statute to an alien in a foreign country under
whose laws the conduct is lawful would seem to evidence a lack of notice sufficient to raise due
process concerns.48
Conceding this outer boundary, however, the courts fairly uniformly have held that questions of
extraterritoriality are almost exclusively within the discretion of Congress; a determination to
grant a statutory provision extraterritorial application—regardless of its policy consequences—is
not by itself constitutionally suspect.

requirement of notice. . . . As Holmes wrote in the Common Law, A law which punished conduct which would not be
blameworthy in the average member of the community would be too severe for that community to bear. . . . Its severity
lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought
under it. Where [as here] a person did not know of the duty to register and where there was no proof of the probability
of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as
great as it is when the law is written in print too fine to read or in a language foreign to the community.”) (emphasis
added; internal quotation marks omitted); Griffin v. Wisconsin, 483 U.S. 868, 875 n.3 (1987); United States v. Shi, 525
F.3d 709, 722 (9th Cir. 2008) (“The Due Process Clause requires that a defendant prosecuted in the United States
should reasonably anticipate being haled into court in this country.”) (internal quotation marks omitted); United States
v. Murillo, 826 F.3d 152, 157 (4th Cir. 2016) (“Simply put, a defendant is ‘not ensnared by a trap laid for the unwary’
when he has engaged in conduct that ‘is self-evidently criminal.’”) (quoting United States v. Al Kassar, 660 F.3d 108,
119 (2d Cir. 2011)); United States v. Ali, 718 F.3d 929, 944 (D.C. Cir. 2013) (“What appears to be the animating
principle governing the due process limits of extraterritorial jurisdiction is the idea that no man shall be held criminally
responsible for the conduct which he could not reasonably understand to be proscribed.”) (internal quotation marks
omitted)).
46 United States v. Ghanem, 993 F.3d 1113, 1132 (9th Cir. 2021) (“Citizenship alone is a sufficient connection to the
United States to permit application of its criminal laws to a citizen’s conduct overseas.”); United States v. Belfast, 611
F.3d 783, 809 (11th Cir. 2010) (“The Supreme Court made clear long ago that an absent United States citizen is
nonetheless personally bound to take notice of this laws of the United States that are applicable to him and to obey
them”) (brackets and internal quotation marks omitted).
47 United States v. Robinson, 843 F.2d 1, 5 (1st Cir. 1988) (finding no “fundamental unfairness of a sort that the
Constitution’s ‘due process’ clause might prohibit,”where the defendant knew or had notice of the applicable laws);
United States v. Saac, 632 F.3d 1203, 1210 (11th Cir. 2011) (“Inasmuch as the trafficking of narcotics is condemned
universally by law-abiding nations, we see no reason to conclude that it is fundamentally unfair for Congress to provide
for the punishment of persons apprehended with narcotics on the high seas”) (internal quotation marks omitted).
48 E.g., United States v. Henriquez, 731 F.2d 131, 134 n.5 (2d Cir. 1984) (“It is also argued that 21 U.S.C. § 955a(a) as
applied [possession of marijuana with intent to distribute by Colombian nationals aboard a non-American vessel in
international waters] violates the notice requirement of the due process clause of the Fifth Amendment. See Lambert v.
California . . . . The argument is based not only on the claim that the statute is unprecedented in international law and
the proposition that marijuana trafficking itself is not universally condemned, but also on the alleged vagueness of the
definition of ‘vessel without nationality’ in 21 U.S.C. § 955b(d) [upon which federal jurisdiction was based]. On this
point, however, we agree with the Eleventh Circuit . . . that the term ‘vessel without nationality’ clearly encompasses
vessels not operating under the authority of any sovereign nation”) (some internal quotation marks omitted); United
States v. Alvarez-Mena, 765 F.2d 1259, 1267 n.11 (5th Cir. 1985) (“[n]evertheless, we observe that we are not faced
with a situation where the interests of the United States are not even arguably potentially implicated. The present case
is not remotely comparable to, for example, the case of an unregistered small ship owned and manned by Tanzanians
sailing from that nation to Kenya on which a crew member carries a pound of marihuana to give to a relative for his
personal consumption in the latter country”) (example offered in discussion of presumption of Congressional intent).

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Statutory Construction
For this reason, the question of the extent to which a particular statute applies outside the United
States has generally been considered a matter of statutory, rather than constitutional,
construction.49 General rules of statutory construction have emerged which can explain, if not
presage, the result in a given case. The first of these holds that a statute that is silent on the
question of overseas application will be construed to have only territorial application unless there
is a clear indication of some broader intent.50 Moreover, “when a statute provides for some
extraterritorial application, the presumption against extraterritoriality operates to limit that
provision to its terms.”51
At one time, another rule of construction stated that the nature and purpose of a statute might
provide an indication of whether Congress intended a statute to apply beyond the confines of the
United States. The rule was first clearly announced in United States v. Bowman.52

49 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991); Foley Brothers v. Filardo, 336 U.S. 281, 284–85 (1949)

(“The question before us is not the power of Congress to extend the Eight Hour Law to work performed in foreign
countries. Petitioners concede that such power exists. The question is rather whether Congress intended to make the
law applicable to such work.”); United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (“It is beyond doubt that, as a
general proposition, Congress has the authority to enforce its laws beyond the territorial boundaries of the United
States”) (internal quotation marks omitted).
50 RJR Nabisco, Inc. v. Eur. Cmty, 579 U.S. 325, 335 (2016) (“Absent clearly expressed congressional intent to the
contrary, federal laws will be construed to have only domestic application”); see also Morrison v. Nat’l Austl. Bank,
Ltd, 561 U.S. 247, 255 (2010) (“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.’”) (some internal
quotation marks omitted) (quoting Arabian Am. Oil, 499 U.S. at 248); United States v. Ballestas, 795 F.3d 138, 143–44
(D.C. Cir. 2015) (“First . . . the presumption against extraterritoriality . . . dictates that ‘when a statute gives no clear
indication of an extraterritorial application, it has none.’ Second . . . the so-call Charming Betsy canon . . . [states] that
‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction
remains.’ . . . Each of those ‘principle[s]’, however, ‘represents a canon of construction, or a presumption about a
statute’s meaning, rather than a limit upon Congress’s power to legislation’”) (brackets omitted) (quoting Morrison,
561 U.S. at 255).
51 Ballestas, 795 F.3d at 144 (quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 120–21 (2013) and
Morrison, 561 U.S. at 265).
52 260 U.S. 94, 97–98, 102 (1922):
But the same rule of [territorial application] should not be applied to criminal statutes
which are, as a class, not logically dependent on their locality for the government’s
jurisdiction, but are enacted because of the right of the government to defend itself against
obstruction, or fraud wherever perpetrated, especially if committed by its own citizens,
officers, or agents. Some such offenses can only be committed within the territorial
jurisdiction of the government because of the local acts required to constitute them. Others
are such that to limit their locus to the strictly territorial jurisdiction would be greatly to
curtail the scope and usefulness of the statute and leave open a large immunity for frauds
as easily committed by citizens on the high seas and in foreign countries as at home. In
such cases, Congress has not thought it necessary to make specific provision in the law that
the locus shall include the high seas and foreign countries, but allows it to be inferred from
the nature of the offense. . . . Clearly it is no offense to the dignity or right of sovereignty
of Brazil [where the fraud of which the United States government was the target occurred,]
to hold [these American defendants] for this crime against the government to which they
owe allegiance.
See also United States v. Delgado-Garcia, 374 F.3d 1337, 1344–50 (D.C. Cir. 2004); United States v. Villanueva, 408
F.3d 193, 197–98 (5th Cir. 2005); United States v. Lopez-Vanegas, 493 F.3d 1305, 1311–12 (11th Cir. 2007).

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The Supreme Court’s emphatic rejection of implied extraterritorial application in Morrison53 cast
doubt on Bowman’s continued vitality. In RJR Nabisco the Court seemed to take direct aim at
Bowman without naming it. Thereafter there may be some real question of whether the Court still
considers Bowman good law.54
RJR Nabisco recognized two circumstances under which a statute may apply to a case involving
conduct abroad. First, Congress may have expressly rejected the presumption against
extraterritorial application.55 Second, a case may involve territorial application of the statute when
the “focus” of the statute is conduct occurring within the United States, even though a particular
case may also involve overseas conduct.56 For example, the wire fraud statute carries no
expression of extraterritorial application.57 The focus of the statute, however, is the protection of
wire communications in the United States, and the statute applies to wire communications within
the United States even when initiated abroad.58
The final rule declares that unless a contrary intent is clear, Congress is assumed to have acted so
as not to invite action inconsistent with international law.59 At one time, the cases seemed to
imply the existence of another rule, that is, unless Congress declared that it intended a statute to
apply overseas to both aliens and American nationals, it would be presumed to apply only to

Morrison, 561 U.S. at 261 (“The results of judicial-speculation-made-law—divining what Congress would have
wanted if it had thought of the situation before the court—demonstrate the wisdom of the presumption . . . in all cases,
preserving a stable background against which Congress can legislate with predictable results.”).
54 “The question is not whether we think ‘Congress would have wanted’ a statute to apply to foreign conduct ‘if it had
thought of the situation before the court,’ but whether Congress has affirmatively and unmistakably instructed that the
statute will do so.” RJR Nabisco, Inc. v. Eur. Cmty, 579 U.S. 325, 335 (2016); but see United States v. Epskamp, 832
F.3d 154, 164 (2d Cir. 2016) (“Even assuming for the sake of argument that the text of § 959(b) [that outlaws
possession of controlled substances aboard a U.S. registered aircraft] itself is insufficiently plain to overcome the
presumption against extraterritoriality, we conclude that the statutory scheme and the context of the statute overcome
the presumption against extraterritoriality. See RJR Nabisco, [579 U.S. at 340] (‘While the presumption can be
overcome only by a clear indication of extraterritorial effect, an express statement of extraterritoriality is not essential,’
and ‘context can be consulted as well’”); United States v. Perez, 962 F.3d 420, 439 n.5 (9th Cir. 2020) (applying the
presumption against extraterritoriality based on RJR Nabisco, and therefore declining to address the possible effect of
Bowman).
55 RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 335 (2016).
56 Id. at 337.
57 United States v. Elbaz, 52 F.4th 593, 602 (4th Cir. 2022);
58 Id. at 603-4; United States v. Hussain, 972 F.3d 1138, 1143-144 (9th Cir. 2020).
59 Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (“It has been a maxim of statutory construction since the decision in
Murray v. The Charming Betsy, [6 U.S. (2 Cranch) 64,] 118 (1804), that an act of congress ought never to be construed
to violate the law of nations, if any other possible construction remains.”); Apollon, 22 U.S. 362, 371 (1824) (“It cannot
be presumed, that Congress would voluntarily justify . . . a clear violation of the laws of nations”).
53

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Americans.60 Yet as discussed below, the challenge seems less compelling in light of the generous
reading of the internationally recognized grounds upon which to stake a claim.61

International Law
International law supports, rather than dictates, decisions in the area of the overseas application of
American law. Neither Congress nor the courts are bound to the dictates of international law
when enacting or interpreting statutes with extraterritorial application.62
Despite this, Congress looks to international law when it evaluates the policy considerations
associated with legislation that may have international consequences. For this reason, the courts
interpret legislation with the presumption that Congress or the state legislature intends its laws to
be applied within the bounds of international law, unless it indicates otherwise.
To what extent does international law permit a nation to exercise extraterritorial criminal
jurisdiction? The question is essentially one of national interests. What national interest is served
by extraterritorial application and what interests of other nations suffer by an extraterritorial
application?

60 E.g., Id. at 370 (“The laws of no nation can justly extend beyond its own territories, except so far as regards its own

citizens”) (emphasis added); Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 355–56 (1907) (“No doubt in regions
subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such
countries may treat some relations between their citizens as governed by their own law, and keep to some extent the old
notion of personal sovereignty alive. . . . And the notion that English statutes bind British subjects everywhere has
found expression in modern times and has had some startling applications.”); Bowman, 260 U.S. at 102–03 (“Section
41 of the Judicial Code . . . provides that: ‘the trial of all offenses committed upon the high seas, or elsewhere out of the
jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first
brought.’ The three defendants who were found in New York were citizens of the United States and were certainly
subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of
sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance. The other
defendant is a subject of Great Britain. He has never been apprehended, and it will be time enough to consider what, if
any, jurisdiction the District Court below has to punish him when he is brought to trial.”); United States v. ColumbaColella, 604 F.2d 356, 360 (5th Cir. 1979) (“Congress [is] not . . . competent to attach criminal sanctions to the murder
of an American by a foreign national in a foreign country. . . .”).
61 E.g., United States v. Vasquez-Velasco, 15 F.3d 833, 839–41 (9th Cir. 1994) (prosecution under 18 U.S.C. § 1959
for the murder of two American tourists in Mexico by Mexican nationals acting under the mistaken belief that the
Americans were DEA agents came within the principle recognized in international law as permitting the exercise of
extraterritorial jurisdiction in the name of a nation’s security); United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir.
1991); United States v. Felix-Gutierrez, 940 F.2d 1200, 1205–06 (9th Cir. 1991) (murder of an American agent
overseas); United States v. Benitez, 741 F.2d 1312, 1316–17 (11th Cir. 1984); see also United States v. Bin Laden, 92
F. Supp. 2d 189, 194–95 (S.D.N.Y.2000) (concluding that Bowman applies regardless of the nationality of the
offender).
62 Yunis, 924 F.2d at 1091 (“Yunis seeks to portray international law as a self-executing code that trumps domestic law
whenever the two conflict. That effort misconceives the role of judges as appliers of international law and as
participants in the federal system. Our duty is to enforce the Constitution, laws, and treaties of the United States, not to
conform the law of the land to norms of customary international law.”); United States v. Yousef, 327 F.3d 56, 86 (2d
Cir. 2003) (“In determining whether Congress intended a federal statute to apply to overseas conduct, an act of
Congress ought never to be construed to violate the law of nations if any other possible construction remains. . . .
Nonetheless, in fashioning the reach of our criminal law, Congress is not bound by international law. . . . If it chooses
to do so, it may legislate with respect to conduct outside the United States in excess of the limits posed by international
law”); United States v. Felix-Gutierrez, 940 F.2d 1200, 1203 (9th Cir. 1991) (internal quotation marks omitted); United
States v. Henriquez, 731 F.2d 131, 134 (2d Cir. 1984). The one exception may apply in those instances where
Congress’s legislative authority cannot be claimed on the basis its constitutionally enumerated powers and must instead
rest upon its authority to carry into effect the powers of sovereignty, cf. United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 318 (1936).

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The most common classification of these interests dates to a 1935 Harvard Law School study
which divided them into five categories or principles corresponding to the circumstances under
which the nations of the world had declared their criminal laws applicable: (1) the territorial
principle that involves crimes occurring or having an impact within the territory of a country; (2)
the nationality principle that involves crimes committed by its nationals; (3) the passive
personality principle that involves crimes committed against its nationals; (4) the protection
principle that involves the crimes which have an impact on its interests as a nation; and (5) the
universal principle that involves crimes which are universally condemned.63
The American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United
States mirrors a balancing of the interests represented in the Harvard study principles:
Customary international law permits exercises of prescriptive jurisdiction
if there is a genuine connection between the subject of the regulation and
the state seeking to regulate. The genuine connection usually rests on a
specific connection between the state and the subject being regulated, such
as territory, effects, acting personality, passive personality, or protection.
In the case of universal jurisdiction, the genuine connection rests on the
universal concern of states in suppression of certain offenses.64
The territorial principle of the Harvard study principles applies more widely than its title might
suggest. It covers conduct within a nation’s geographical borders. Yet, it also encompasses laws
governing conduct on its territorial waters, conduct on its vessels on the high seas, conduct
committed only in part within its geographical boundaries, and conduct elsewhere that has an
impact within its territory.65 Congress often indicates within the text of a statute when it intends a
provision to apply within its territorial waters and upon its vessels.66
63 Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 AM. J. INT’L L. (Supp.) 439, 445

(1935) [hereinafter Harvard Study]:
An analysis . . . discloses five general principles on which a more or less extensive penal
jurisdiction is claimed by States at the present time. These five general principles are: first,
the territorial principle, determining jurisdiction by reference to the place where the
offence is committed; second, the nationality principle, determining jurisdiction by
reference to the nationality or national character of the person committing the offence;
third, the protective principle, determining jurisdiction by reference to the national interest
injured by the offence; fourth, the universality principle, determining jurisdiction by
reference to the custody of the person committing the offence; and fifth, the passive
personality principle, determining jurisdiction by reference to the nationality or national
character of the person injured by the offence. Of these five principles, the first is
everywhere regarded as of primary importance and of fundamental character. The second
is universally accepted, though there are striking differences in the extent to which it is
used in different national systems. The third is claimed by most States, regarded with
misgivings in a few, and generally ranked as the basis for an auxiliary competence. The
fourth is widely though by no means universally accepted as the basis of an auxiliary
competence, except for the offence of piracy, with respect to which it is the generally
recognized principle of jurisdiction. The fifth, asserted in some form by a considerable
number of States and contested by others, is admittedly auxiliary in character and is
probably not essential for any State if the ends served are adequately provided for on other
principles. (emphasis added).
64 RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 407 (AM. L. INST. 2018).
65 Id. § 408 (“International law recognizes a state’s jurisdiction to prescribe law with respect to persons, property, and
conduct within its territory”); Harvard Study, supra note 62, at 480–509.
66 E.g., 18 U.S.C. §§ 81 (arson within the maritime and territorial jurisdiction of the United States), 113 (assaults within
the maritime and territorial jurisdiction of the United States).

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Although rarely mentioned in the body of a statute, the courts at one time acknowledged the
“impact” basis for a claim of extraterritorial application.67 This is particularly so when the facts in
a case have suggested other principles of international law, in addition to the territorial
principle.68
If the territorial principle is more expansive than its caption might imply, the protective principle
is less so. It is confined to crimes committed outside a nation’s territory against its “security,
territorial integrity or political independence.”69 As construed by the courts, however, it is
understood to permit the application abroad of statutes which protect the federal government and
its functions.70 And so, when Congress has made its intent to assert extraterritorial jurisdiction
clear, the protective principle of international law covers the overseas murder or attempted
murder of federal officers or those thought to be federal officers;71 acts of terrorism calculated to
influence American foreign policy;72 conduct that Congress has characterized as a threat to U.S.
RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 409 (AM. L. INST. 2018) (“International law recognizes a
state’s jurisdiction to prescribe law with respect to conduct that has a substantial effect within its territory.”); Ford v.
United States, 273 U.S. 593, 623 (1927) (“[A] man, who outside of a country willfully puts in motion a force to take
effect in it, is answerable at the place where the evil is done”); United States v. Yousef, 327 F.3d 56, 96–97 (2d Cir.
2003) (“Moreover, assertion of jurisdiction is appropriate under the ‘objective territorial principle’ because the purpose
of the attack was to influence United States foreign policy and the defendants intended their actions to have an effect—
in this case, a devastating effect—on and within the United States.”); United States v. Neil, 312 F.3d 419, 422 (9th Cir.
2002); United States v. MacAllister, 160 F.3d 1304, 1308 (11th Cir. 1998) (per curiam); United States v. Goldberg, 830
F.2d 459, 463–64 (3d Cir. 1987); United States v. Rojas, 812 F.3d 382, 392 (5th Cir. 2016).
68 United States v. Felix-Gutierrez, 940 F.2d 1200, 1205–06 (9th Cir. 1991) (“Felix’s actions created a significant
detrimental effect in the United States and adversely affected the national interest. In helping to prevent the United
States from apprehending Caro-Quintero, Felix directly hindered United States efforts to prosecute an alleged murderer
of a government agent. Furthermore, that agent was a United States citizen. We need not decide whether any one of
these facts or principles, standing alone, would be sufficient. Rather, we hold that cumulatively applied they require the
conclusion that giving extraterritorial effect to the accessory after the fact statute in Felix’s case does not violate
international law principles.”); United States v. Suerte, 291 F.3d 366, 370 (5th Cir. 2002); United States v. Cardales,
168 F.3d 548, 553 (1st Cir. 1999); United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984).
69 Harvard Study, supra note 62, at 543; RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 412 (AM. L. INST.
2018) (“International law recognizes a state’s jurisdiction to prescribe law with respect to certain conduct outside its
territory by persons not its nationals that is directed against the security of the state or against a limited class of other
fundamental state interests, such as espionage, certain acts of terrorism, murder of government officials, counterfeiting
of the state’s seal or currency, falsification of official documents, perjury before consular officials, and conspiracy to
violate immigration or customs laws.”); United States v. Baston, 818 F.3d 651, 670 (11th Cir. 2016) (“Under the
‘protective principle’ of international law, a country can enact extraterritorial criminal laws to punish conduct that
threatens its security as a state or the operation of its governmental functions and is generally recognized as a crime
under the law of states that have reasonably developed legal system”) (some internal quotation marks omitted); Rojas,
812 F.3d at 392.
70 United States v. Vilches-Navarrete, 523 F.3d 1, 21–22 (1st Cir. 2008) (Lynch and Howard, JJ., concurring in part
(“Under the ‘protective principle’ of international law, Congress can punish crimes committed on the high seas
regardless of whether a vessel is subject to the jurisdiction of the United States. Under the protective principle, a state
has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its
security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a
crime under the law of states that have reasonably developed legal systems”); see also United States v. Al Kassar, 660
F.3d 108, 118 (2d Cir. 2011).
71 United States v. Vasquez-Velasco, 15 F.3d 833, 841 (9th Cir. 1994); United States v. Felix-Gutierrez, 940 F.2d 1200,
1206 (9th Cir. 1991); Benitez, 741 F.2d at 1316; but see United States v. Garcia Sota, 948 F.3d 356, 358–60 (D.C. Cir.
2020) (holding that 18 U.S.C. § 1114, which outlaws killing federal officers and employees but which then had no
statement of extraterritoriality, fell victim to the rule requiring an extraterritorial intent. Section 1114 has since been
amended to include such a statement).
72 Yousef, 327 F.3d at 97 (“Finally, there is no doubt that jurisdiction is proper under the ‘protective principle’ because
the planned attacks were intended to affect the United States and to alter its foreign policy.”) (Yousef was convicted of
conspiracy to violate 18 U.S.C. § 32(b) of which contains a statement of extraterritorial application.).
67

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national security;73 entering the United States as a stowaway;74 or overseas bribery in connection
with the award of federal government contracts.75
The nationality or active personality principle of international law acknowledges statutes
asserting extraterritorial criminal jurisdiction based on the citizenship of accused.76 It is the
principle mirrored in the Supreme Court’s statements in Blackmer v. United States, following the
contempt conviction of an American living in Paris who ignored a federal court subpoena.77 As in
the case of Blackmer, which evidenced both the nationality and the protective principles, cases
involving the nationality principle often involve other principles as well.78
The passive personality principle recognizes international law compatibility of statutes asserting
extraterritorial criminal jurisdiction based on the nationality of the victim of the offense.79 It, too,
has been asserted most often in the presence of facts suggesting other principles.80

73 United States v. Romero-Galue, 757 F.2d 1147, 1154 (11th Cir. 1985) (prohibition on possession of marijuana within

the “customs waters of the United States” under 21 U.S.C. § 955a found consistent with the protective principle).
Section 955a has no express statement of extraterritoriality, and today prosecution would probably be brought under
MDLEA.
74 United States v. Banjoko, 590 F.3d 1278, 1281 (11th Cir. 2009) (per curiam).
75 United States v. Campbell, 798 F. Supp. 2d 293, 296 (D.D.C. 2011) Campbell was convicted under 18 U.S.C. § 666,
which has no statement of extraterritorial application. Under some circumstances, extraterritorial violations of § 666
might be prosecuted under the money laundering (18 U.S.C. § 1956(f)) or wire fraud (18 U.S.C. § 1343) provisions, but
those charges may not have been available under D.C. Circuit jurisprudence. See Garcia Sota, 948 F.3d at 358–60 (no
application abroad of a statute prohibiting killing a federal office but then lacking a statement of extraterritorial
application).
76 Harvard Study, supra note 62, at 519; RESTATEMENT (FOURTH) OF FOREIGN RELATIONS § 410 (AM. L. INST. 2018)
(“International law recognizes a state’s jurisdiction to prescribe law with respect to the conduct, interests, status, and
relations of its nationals outside its territory.”); United States v. Bollinger, 798 F.3d 201, 214 (4th Cir. 2015); United
States v. Lawrence, 727 F.3d 386, 394–95 (5th Cir. 2013); United States v. Frank, 599 F.3d 1221, 1233 (11th Cir.
2010); United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006); United States v. Martinez, 599 F. Supp. 2d 784,
797 (W.D. Tex. 2009).
77 Blackmer v. United States, 284 U.S. 421, 437 (1932) (“With respect to such an exercise of authority, there is no
question of international law, but solely of the purport of municipal law which establishes the duties of the citizen in
relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed
to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of
the United States in foreign countries are concerned, is one of construction, not of legislative power.”) (footnotes
omitted).
78 Lawrence, 727 F.3d at 394–95 (nationality and protective principles); United States v. Ayesh, 702 F.3d 162, 166–67
(4th Cir. 2012) (objective territorial and protective principles); United States v. Plummer, 221 F.3d 1298, 1305–07
(11th Cir. 2000) (nationality and territorial principles); Chua Han Mow v. United States, 730 F.2d 1308, 1312 (9th Cir.
1984) (territorial, protective, and nationality principles); United States v. Smith, 680 F.2d 255, 257–58 (1st Cir. 1982)
(territorial and nationality principles); Martinez, 599 F. Supp. 2d at 800 (nationality, passive personality, and territorial
principles).
79 Harvard Study, supra note 62, at 445; RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 411 (AM. L. INST.
2018) (“International law recognizes a state’s jurisdiction to prescribe law with respect to certain conduct outside its
territory that harms its nationals.”).
80 United States v. Yousef, 327 F.3d 56, 96 (2d Cir. 2003) (passive personality and territorial principles) (“consistent
with the ‘passive personality principle’ of customary international jurisdiction because each of these counts involved a
plot to bomb United States-flag aircraft that would have been carrying United States citizens and crews and that were
destined for cities in the United States”); United States v. Hill, 279 F.3d 731, 739 (9th Cir. 2002) (“In the instant case,
the territorial, national, and . . . passive personality theories combine to sanction extraterritorial jurisdiction.”); United
States v. Rezaq, 134 F.3d 1121, 1133 (D.C. Cir. 1998) (protective and passive personality principles).

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The universal principle is based on the premise that offenses against all nations may be punished
by any nation where the offender is found.81 At a minimum, it applies to piracy and offenses
committed on the high seas on “stateless” vessels.82

Current Extent of American Extraterritorial Criminal Jurisdiction
Federal Law
Express
Congress’s declaration that a particular statute is to apply outside of the United States is the most
obvious evidence of intent to create extraterritorial jurisdiction.83 Congress has expressly
provided for the extraterritorial application of federal criminal law most often by outlawing
various forms of misconduct when they occur “within the special maritime and territorial
jurisdiction of the United States.”84 The concept of special maritime and territorial jurisdiction, if
not the phrase, dates from the First Congress,85 and encompasses navigable waters and federal
enclaves within the United States as well as areas beyond the territorial confines of the United
States. Although the concept of the special maritime and territorial jurisdiction of the United
States once embraced little more than places over which the United States enjoyed state-like
legislative jurisdiction, U.S. navigable territorial waters, and vessels of the United States, its
application has been statutorily expanded. It now supplies an explicit basis for the extraterritorial
application of various federal criminal laws relating to:


air travel (special aircraft jurisdiction of the United States);86

81 United States v. Shi, 525 F.3d 709, 722 (9th Cir. 2008); Harvard Study, supra note 62, at 445; RESTATEMENT

(FOURTH) OF FOREIGN RELATIONS LAW § 413 (AM. L. INST. 2018) (“International law recognizes a state’s jurisdiction to
prescribe law with respect to certain offenses of universal concern, such as genocide, crimes against humanity, war
crimes, certain acts of terrorism, piracy, the slave trade, and torture, even if no specific connection exists between the
state and the persons or conduct being regulated.”).
82 United States v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995).
83 A list of the citations to such federal statutes is attached.
84 The text of 18 U.S.C. § 7 which defines the term “special maritime and territorial jurisdiction of the United States” is
attached. Id.
85 1 Stat. 113 (1790) (outlawing manslaughter committed in a place “under the sole and exclusive jurisdiction of the
United States” and murder committed “upon the high seas”).
86 See 49 U.S.C. § 46501:
In this chapter—
(1) “aircraft in flight” means an aircraft from the moment all external doors are closed following
boarding—(A) through the moment when one external door is opened to allow passengers to leave
the aircraft; or (B) until, if a forced landing, competent authorities take over responsibility for the
aircraft and individuals and property on the aircraft.
(2) “special aircraft jurisdiction of the United States” includes any of the following aircraft in flight:
(A) a civil aircraft of the United States. (B) an aircraft of the armed forces of the United States. (C)
another aircraft in the United States. (D) another aircraft outside the United States—(i) that has its
next scheduled destination or last place of departure in the United States, if the aircraft next lands in
the United States; (ii) on which an individual commits an offense (as defined in the Convention for
the Suppression of Unlawful Seizure of Aircraft) if the aircraft lands in the United States with the
individual still on the aircraft; or (iii) against which an individual commits an offense (as defined in
subsection (d) or (e) of article I, section I of the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation) if the aircraft lands in the United States with the individual still
on the aircraft. (E) any other aircraft leased without crew to a lessee whose principal place of business

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





customs matters (customs waters of the U.S.);87
U.S. spacecraft in flight;88
evasive, stateless submersible vessels on the high seas;89
overseas federal facilities and overseas residences of federal employees;90
members of U.S. Armed Forces overseas and those accompanying them;91

is in the United States or, if the lessee does not have a principal place of business, whose permanent
residence is in the United States.
(3) an individual commits an offense (as defined in the Convention for the Suppression of Unlawful
Seizure of Aircraft) when the individual, when on an aircraft in flight—(A) by any form of
intimidation, unlawfully seizes, exercises control of, or attempts to seize or exercise control of, the
aircraft; or (B) is an accomplice of an individual referred to in subclause (A) of this clause. Id.
87 See 19 U.S.C. § 1709(c):
The term “customs waters” means, [1] in the case of a foreign vessel subject to a treaty or other
arrangement between a foreign government and the United States enabling or permitting the
authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such
vessel upon the high seas the laws of the United States, the waters within such distance of the coast
of the United States as the said authorities are or may be so enabled or permitted by such treaty or
arrangement and, [2] in the case of every other vessel, the waters within four leagues of the coast of
the United States. Id.
88 See 18 U.S.C. § 7(6) (“Any vehicle used or designed for flight or navigation in space and on the registry of the
United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched
into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth
following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a
forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property
aboard.”); see generally LSB 10869, If You Do the Space Crime, You May Do the Space Time by Peter G. Berris &
Michael A. Foster.
89 “Whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible
vessel or semi-submersible vessel that is without nationality and that is navigating or has navigated into, through, or
from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country’s territorial
sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than
15 years or both.” Id. § 2285(a).
90 “With respect to offenses committed by or against a national of the United States as that term is used in section 101
of the Immigration and Nationality Act—(A) the premises of United States diplomatic, consular, military or other
United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land
appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B)
residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes
of those missions or entities or used by United States personnel assigned to those missions or entities,” Id. § 7(9).
91 See id. § 3261:
(a) Whoever engages in conduct outside the United States that would constitute an offense punishable
by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime
and territorial jurisdiction of the United States—(1) while employed by or accompanying the Armed
Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47
of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.
(b) No prosecution may be commenced against a person under this section if a foreign government,
in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting
such person for the conduct constituting such offense, except upon the approval of the Attorney
General or the Deputy Attorney General (or a person acting in either such capacity), which function
of approval may not be delegated.
(c) Nothing is chapter may be construed to deprive a court-martial, military commission, provost
court, or other military tribunal of concurrent jurisdiction with respect to offenders or offenses that
by statute or by the law of war may be tried by a court-martial, military commission, provost court,
or other military tribunal.

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

human trafficking and sex offenses abroad by federal employees, U.S. military
personnel, or those accompanying them.

The obligations and principles of various international treaties, conventions, or agreements to
which the United States is a party supply the theme for a second class of federal criminal statutes
with explicit extraterritorial application.92 The range of these treaty-based federal crimes differs.
Some have extraterritorial application only when the offender is an American.93 Some address
misconduct so universally condemned that they fall within federal jurisdiction regardless of any
other jurisdictional considerations as long as the offender flees to the United States, is brought
here for prosecution, or is otherwise “found in the United States” after the commission of the
offense.94 Some enjoy extraterritorial application under any of a number of these and other
explicit jurisdictional circumstances.95
Other federal criminal statutes that have explicit extraterritorial application either declare that
their provisions are to apply overseas96 or describe a series of jurisdictional circumstances under
which their provisions have extraterritorial application, not infrequently involving the foreign
commerce of the United States in conjunction with other factors.97

Maritime Drug Law Enforcement Act
The Maritime Drug Law Enforcement Act (MDLEA) is somewhat unusual in that it expressly
authorizes extraterritorial coverage of federal criminal law predicated on the consent of the nation
with primary criminal jurisdiction.98 MDLEA outlaws the manufacture, distribution, or possession
with intent to manufacture or distribute controlled substances aboard vessels within the
jurisdiction of the United States.99 It defines vessels within the jurisdiction of the United States
not only in terms of ordinary U.S. maritime jurisdiction, but also envelops the maritime
jurisdiction of other countries as long as they have consented to the application of the U.S. law
aboard the vessel.100 The definition also encompasses “vessels without nationality” sometimes
(d) No prosecution may be commenced against a member of the Armed Forces subject to chapter 47
of title 10 (the Uniform Code of Military Justice) under this section unless—(1) such member ceases
to be subject to such chapter; or (2) an indictment or information charges that the member committed
the offense with one or more other defendants, at least one of whom is not subject to such chapter.
Id.
92 E.g., id. §§ 1203 (hostage taking), 175 (biological weapons), 1091 (genocide); id. ch.113C (torture).
93 E.g., id. § 1091(d)(2) (“the alleged offender is a national of the United States . . . .”).
94 E.g., id. § 2340A(b)(2) (“There is jurisdiction over the activity prohibited in subsection(a) if . . . (2) the alleged
offender is present in the United States, irrespective of the nationality of the victim or alleged offender.”).
95 E.g., id. § 1203 (“It is not an offense under this section [relating to hostage taking] if the conduct required for the
offense occurred outside the United States” unless—(A) the “offender and each person seized or detained [is a] national
of the United States”; (B) the “offender is found in the United States”; or (C) the “governmental organization sought to
be compelled is the Government of the United States.”).
96 E.g., id. § 351(i) (“There is extraterritorial jurisdiction over the conduct prohibited by this section.”).
97 E.g., id. § 175c (prohibiting certain acts concerning the variola virus committed by or against a U.S. national;
committed in or affecting interstate or foreign commerce; committed against federal property).
98 46 U.S.C. §§ 70501–70507.
99 Id. § 70503.
100 Id. § 70502(c)(1) (“In this chapter, the term ‘vessel subject to the jurisdiction of the United States’ includes—(A) a
vessel without nationality; (B) a vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of
article 6 of the 1958 Convention on the High Seas; (C) a vessel registered in a foreign nation where the flag nation has
consented or waived objection to the enforcement of United States law by the United States; (D) a vessel located within
the customs waters of the United States; (E) a vessel located in the territorial waters of another nation, where the

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referred to as “stateless” vessels, that is, vessels for which no national registry is effectively
claimed.101
MDLEA provides the basis for Coast Guard drug interdiction efforts in the Caribbean and in the
eastern Pacific off the coast of Central and South America.102 The courts have concluded that
MDLEA constitutes a valid exercise of Congress’s constitutional authority to define and punish
felonies on the high seas and offenses against the law of nations.103 They are divided over whether
the prosecution must show some nexus between the United States and the offense104 and over the
application of the subsection of the act that assigns jurisdictional determinations to the court
rather than to the jury.105
nation consents to the enforcement of United States law by the United States; and (F) a vessel located in the contiguous
zone of the United States, as defined in Presidential Proclamation 7219 of September 2, 1999, and (i) is entering the
United States, (ii) has departed the United States, or (iii) is a hovering vessel as defined in section 491 of the Tariff Act
of 1930 (19 U.S.C. 1401).”) (emphasis added); see, e.g., United States v. Cardales-Luna, 632 F.3d 731, 736–37 (1st
Cir. 2011).
101 46 U.S.C. § 70502(d)(1) (“In this chapter, the term, ‘vessel without nationality’ includes—(A) a vessel aboard
which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry
is claimed; (B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United
States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for
that vessel; and (C) a vessel aboard which the master or person in charge makes a claim of registry and the claimed
nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.”); see, e.g., United
States v. Aybar-Ulloa, 987 F.3d 1, 3 (1st Cir. 2021) (en banc).
102 E.g., United States v. Olave-Valencia, 371 F. Supp. 2d 1224, 1226 (S.D. Cal. 2005) (Coast Guard interdiction 250
miles from the Honduras/Costa Rica border.); United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1360 (M.D.
Fla. 2006) (Coast Guard interdiction from a Navy frigate off the coast of Colombia.); United States v. Perlaza, 439 F.3d
1149, 1152 (9th Cir. 2006) (Navy and Coast Guard ships engaged in drug interdiction in Pacific off the coasts of
Ecuador, Colombia and Peru.).
103 U.S. CONST. art. I, § 8, cl. 10; United States v. Ballestas, 795 F.3d 138, 146–47 (D.C. Cir. 2015); United States v.
Ledesma-Cuesta, 347 F.3d 527, 532 (3d Cir. 2003); United States v. Moreno-Morillo, 334 F.3d 819, 824 (9th Cir.
2003); cf., United States v. Matos-Luchi, 627 F.3d 1, 3 (1st Cir. 2010); contra, United States v. Bellaizac-Hurtado, 700
F.3d 1245, 1249 (11th Cir. 2012) (concluding that “drug trafficking . . . falls outside the power of Congress under the
Law of Nations Clause) (Ballestas concluded that, nevertheless, drug trafficking on the high seas falls within
Congress’s power under the Felonies Clause); see also United States v. Cardales-Luna, 632 F.3d at 738–51 (Torruella,
J., dissenting); but see United States v. Davila-Mendoza, 972 F.3d 1264, 1274–77 (11th Cir. 2020) (application of
MDLEA to foreign vessels in foreign territorial waters is beyond Congress’s reach under the Foreign Commerce
Clause).
104 United States v. Alarcon Sanchez, 972 F.3d 156, 168 (2d Cir. 2020) (“As a general rule the extraterritorial
application of federal criminal law requires such a nexus [between the defendant and the United States]. . . However. . .
no such nexus is required when MDLEA violations occur on stateless vessels.”); United States v. Angulo-Hernández,
565 F.3d 2, 10–11(1st Cir. 2009) (“Due process does not require the government to prove a nexus between a
defendant’s criminal conduct and the United States in a prosecution under MDLEA when the flag nation has consented
to the application of United State law to the defendants”) (brackets omitted); United States v. Suerte, 291 F.3d 366, 375
(5th Cir. 2002); United States v. Perez Oviedo, 281 F.3d 400, 402–03 (3d Cir. 2002); contra United States v.
Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998); see also Ballestas, 795 F.3d at 147–48 (finding it
unnecessary to resolve the question since it considered the nexus requirement merely “a proxy for due process,” whose
arbitrariness or fundamental unfairness concerns were negated by the facts of the case before the court).
105 46 U.S.C. § 70504(a); United States v. Perlaza, 439 F.3d 1149, 1165–66 (9th Cir. 2006) (“After hearing all the
evidence as to its status at a pretrial hearing, the district court determined that the Go-Fast was a stateless vessel. We
find that by not submitting this issue to the jury, the district court erred. The evidence relating to the Go-Fast’s
statelessness presents precisely the kind of disputed factual question that Smith [United States v. Smith, 282 F.3d 758
(9th Cir. 2002)] requires a jury to resolve”); contra United States v. Tinoco, 304 F.3d 1088, 1110–11 & n.22 (11th Cir.
2002) (“Hence, although fact-bound determinations may be involved, that does not automatically mean that the 46
U.S.C. App. § 1903 jurisdictional issue has to be decided by the jury. . . . Consequently, even if questions under the 46
U.S.C. App. § 1903 jurisdictional requirement may have a factual component, that component does not have to be
resolved by the jury, given that, as we have explained, the jurisdictional requirement goes only to the court’s subject

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Implied Intent of Congress
At least until Morrison and RJR Nabisco, the lower courts understood Bowman106 and Ford107 to
mean that a substantial number of other federal crimes operate overseas by virtue of the implicit
intent of Congress. In fact, they construed Bowman and Ford to suggest that American
extraterritorial criminal jurisdiction included a wide range of statutes designed to protect federal
officers, employees, and property; to prevent smuggling; and to deter the obstruction or
corruption of the overseas activities of federal departments and agencies.108 They held, for
instance, that the statute outlawing the assassination of Members of Congress may be applied
against a U.S. citizen for a murder committed in a foreign country,109 and that statutes prohibiting
the murder or kidnaping of federal law enforcement officials apply in other countries even if the
offenders are not Americans,110 and even if the offenders simply incorrectly believed the victims
were federal law enforcement officers.111 They have also considered extraterritorial jurisdiction
appropriate to (1) cases where aliens have attempted to defraud the United States in order to gain
admission into the United States;112 (2) false statements made by Americans overseas;113 (3) the
theft of federal property abroad;114 (4) counterfeiting, forging, or otherwise misusing federal
documents or checks overseas by either Americans or aliens;115 and (5) murder of a foreign
national in another nation designed to facilitate the operation of a criminal enterprise in the
United States.116 A logical extension of this law, moreover, would have been to apply conclude
that statutes enacted to prevent and punish the theft of federal property apply worldwide. There
seemed no obvious reason why statutes protecting the United States from intentional deprivation
matter jurisdiction and does not have to be treated as an element of a MDLEA substantive offense. . . . We also note
that our rejection of the appellant’s argument concerning the fact-bound nature of 46 U.S.C. App. § 1903 jurisdictional
determinations appears to put us in conflict with one of our sister circuits . . . . In United States v. Smith . . . [t]he Ninth
Circuit concluded that the district court erred by taking the issue of whether the §1903 jurisdictional requirement had
been met completely away from the jury.”); cf., Matos-Luchi, 627 F.3d at 5.
106 United States v. Bowman, 260 U.S. 94 (1922) (the nature and purpose of a statute indicate whether Congress
intended it to apply outside of the United States).
107 Ford v. United States, 273 U.S. 593, 623 (1927) (“a man who outside of a country willfully puts in motion a force to
take effect in it is answerable at the place where the evil is done”).
108 United States v. Siddiqui, 699 F.3d 690, 700–01 (2d Cir. 2012) (internal quotation marks omitted) (quoting United
States v. Bowman) (“The ordinary presumption that laws do not apply extraterritorially has no applications to criminal
statutes. When the text of a criminal statute is silent, Congressional intent to apply the statute extraterritorially ‘must be
inferred from the nature of the offense.’”); United States v. MacAllister, 160 F.3d 1304, 1308 n.8 (11th Cir. 1998) (“On
authority of Bowman, courts have routinely inferred congressional intent to provide for extraterritorial jurisdiction over
foreign offenses that cause domestic harm.”).
109 United States v. Layton, 855 F.2d 1388, 1395–97 (9th Cir. 1988) (At the time of the murder of Congressman Ryan
for which Layton was convicted the statute was silent as to its extraterritorial application; several years later Congress
added an explicit extraterritorial provision, 18 U.S.C. § 351(i).).
110 Siddiqui, 699 F.3d at 699–701; United States v. Felix-Gutierrez, 940 F.2d 1200, 1204–06 (9th Cir. 1991); United
States v. Benitez, 741 F.2d 1312, 1316–17 (11th Cir. 1984).
111 United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994).
112
United States v. Pizzarusso, 388 F.2d 8, 9–10 (2d Cir. 1968); Rocha v. United States, 288 F.2d 545, 549 (9th Cir.
1961); United States v. Khale, 658 F.2d 90, 92 (2d Cir. 1981); United States v. Castillo-Felix, 539 F.2d 9, 12–13 (9th
Cir. 1976).
113 United States v. Walczak, 783 F.2d 852, 854–55 (9th Cir. 1986).
114 United States v. Cotten, 471 F.2d. 744, 749 (9th Cir. 1973) (U.S. citizen); United States v. Ayesh, 762 F. Supp. 2d
832, 838–41 (E.D. Va. 2011) (foreign national).
115 United States v. Birch, 470 F.2d 808, 810–11 (4th Cir. 1972); United States v. Fernandez, 496 F.2d 1294, 1296 (5th
Cir. 1954); United States v. Aguilar, 756 F.2d 1418, 1425 (9th Cir. 1985); Castillo-Felix, 539 F.2d at 12–13.
116 United States v. Leija-Sanchez, 602 F.3d 797, 801–02 (7th Cir. 2010).

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of its property by destruction should be treated differently from those where the loss is
attributable to theft.
RJR Nabisco’s insistence upon an express declaration of extraterritorial application casts serious
doubt on the continued validity of these assessments, at least in the absence of some textual,
structural, or contextual indication that Congress intended the statutes at issue to apply abroad.117
The RJR Nabisco Court, however, did endorse implied extraterritoriality in the case of
“piggyback” statutes—conspiracy, attempt, aiding and abetting, among them—whose provisions
are necessarily predicated on some other crime. Earlier cases occasionally expressed the view that
an individual might be guilty of conspiracy to violate a federal law within the United States
notwithstanding the fact he never entered the United States; it was enough that he was a member
of a conspiracy to violate the American law.118 The cases applied the same rationale to accessories
to overseas federal crimes, and to piggyback offenses where criminal liability was predicated
upon a crime that applies abroad.119
The Court in RJR Nabisco seemed to agree: “Congress’s incorporation of these (and other)
extraterritorial predicates into RICO gives a clear, affirmative indication that [RICO’s criminal
prohibitions] app[y] to foreign racketeering activity—but only to the extent that the predicates
alleged in a particular case themselves apply extraterritorially.”120

State Law
State criminal laws are less likely to apply overseas than federal laws.121 State law produces fewer
instances where a statute was clearly enacted with an eye to its application overseas and fewer
examples where frustration of legislative purpose is the logical consequence of purely territorial
application. The Constitution seems to have preordained this result when it vested responsibility

RJR Nabisco, 579 U.S. at 335 (“When a statute gives no clear indication of an extraterritorial application, it has
none.”); see also United States v. Epskamp, 832 F.3d 154, 164–65 (2d Cir. 2016) (explaining that the structure and
context of a criminal provision within the Controlled Substances Import and Export Act was sufficient to overcome the
presumption of purely domestic application).
118 United States v. MacAllister, 160 F.3d 1304, 1307–08 (11th Cir. 1998); Ford v. United States, 273 U.S. 593, 620–24
(1927); United States v. Inco Bank & Tr. Corp., 845 F.2d 919, 920 (11th Cir. 1988); United States v. Manuel, 371 F.
Supp. 2d 404, 409 (S.D.N.Y. 2005).
119 United States v. Ballestas, 795 F.3d 138, 144 (D.C. Cir. 2015) (“[I]n the particular context of an ancillary offense
like aiding and abetting or conspiracy, we have held that, generally, the extraterritorial reach of the ancillary offense is
coterminous with that of the underlying criminal statute.”); United States v. Shibin, 722 F.3d 233, 246–47 (4th Cir.
2013) (“Finally, § 924(c) . . . criminalizes the use or possession of a firearm in connection with a crime of violence. It is
an ancillary crime that depends on the nature and reach of the underlying crime. Thus, its jurisdictional reach is
coextensive with the jurisdiction over the underlying crime . . . . Thus, because Shibin could be prosecuted in the
United States for hostage taking and maritime violence, he could also be prosecuted under § 924(c) for possessing,
using, or carrying a firearm in connection with those crimes”) (citing in accord United States v. Belfast, 611 F.3d 783,
814 (11th Cir. 2010)); United States v. Siddiqui, 699 F.3d 699, 701 (2d Cir. 2012); 18 U.S.C. § 924(c); United States v.
Felix-Gutierrez, 940 F.2d 1200, 1204–07 (9th Cir. 1991) (accessory after the fact violation committed overseas); but
see United States v. Ali, 718 F.3d 929, 942 (D.C. Cir. 2013) (“Because conspiracy, unlike aiding and abetting, is not
part of [the internationally recognized] definition [of piracy], and because § 371 [the general conspiracy statute] falls
short of expressly rejecting international law, Charming Betsy, [which establishes a presumption against any
extraterritorial application which is contrary to international law,] precludes Ali’s prosecution for conspiracy to commit
piracy.”). A list of citations to the piggyback offense statutes is attached.
120 RJR Nabisco, 579 U.S. at 339.
121 The comparable question under state law is the extent to which a state’s criminal law applies to activities occurring
in another state.
117

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for protecting American interests and fulfilling American responsibilities overseas in the federal
government.122
The primacy of the federal government in foreign affairs might suggest that the Constitution
precludes the application of state law in other countries, but the courts and commentators have
recognized a limited power of the states to enact law governing conduct outside the United
States.123 Obviously, Congress may, by preemptive action, extinguish the legislative authority of a
state in any area over which Congress has plenary powers. And the Supremacy Clause also
renders treaties to which the United States is a party binding upon the states and therefore beyond
their legislative reach.124 The constitutional limitations aside, and in the absence of federal
legislative action, however, “the question . . . is one of whether the state actually intended to
legislate extraterritorially, not whether it has the power to do so.”125
The states have chosen to make their laws applicable beyond their boundaries in only a limited set
of circumstances and ordinarily only in cases where there is some clear nexus to the state.126
Perhaps the most common state statutory provision claiming state extraterritorial criminal
jurisdiction is one that asserts jurisdiction in cases where some of the elements of the offense are
committed within the state’s borders or others are committed elsewhere.127 Another common
122 See, e.g., U.S. CONST. art. II, § 2, cl. 2 (“[t]he President . . . shall have power, by and with the advice and consent of

the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with
the advice and consent of the Senate, shall appoint Ambassadors, [and] other public ministers and consuls”); id. art. II,
§ 3, cl. 3 (“he shall receive Ambassadors and other public ministers”); id. art. II, § 2, cl. 1 (“[he] shall be commander in
chief of the Army and Navy of the United States”); id. art. I, § 8, cl. 18 (“[t]he Congress shall have power . . . to make
all laws which shall be necessary and proper for carrying into execution [its] powers, and all other powers vested by
this Constitution in the Government of the United States, or in any Department or Officer thereof”); id. I, § 8, cl. 10
(“[t]he Congress shall have power . . . to define and punish piracies and felonies committed on the high seas, and
offences against the law of nations”); id. I, § 8, cl. 3 (“[t]he Congress shall have power. . . to regulate commerce with
foreign nations”); id. art. I, § 8, cl. 1 (“[t]he Congress shall have power to lay and collect . . . duties, imposts and
excises, to pay the debts and provide for the common defence and general welfare”); id. art. I, § 8, cls. 11, 12, 13, 14
(“[t]he Congress shall have power. . . to declare war . . . ; to raise and support armies . . . ; to provide and maintain a
navy . . . ; [and] to make rules for the government and regulation of the land and naval forces”).
123 Skiriotes v. Florida, 313 U.S. 69, 77 (1941) (“If the United States may control the conduct of its citizens upon the
high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high
seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of
Congress”); Arizona v. Flores, 188 P.3d 706, 712–15 (Ariz. Ct. App. 2009); Alaska v. Jack, 125 P.3d 311, 318–19
(Alaska 2005); Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the
Intersection of National and International Law, 48 HARV. INT’L L. J. 121, 128 (2007).
124 “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties
made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary
notwithstanding,” U.S. CONST. art. VI, cl. 2.
125 B.J. George, Jr., Extraterritorial Application of Penal Legislation, 64 MICH. L. REV. 609, 617 (1966); RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW § 402 cmt. k, n.5 (AM. L. INST. 1987); see also RESTATEMENT (FOURTH) OF
FOREIGN RELATIONS LAW § 403 (AM. L. INST. 2018).
126
The Model Penal Code section (attached) exemplifies the standards found in most state extraterritorial criminal
jurisdiction provisions. Several states have no general extraterritorial statute, but instead have statutory venue
provisions indicating where criminal offenses with extraterritorial components may be tried, e.g., Ala. Code § 15-2-3
(“When the commission of an offense commenced in the State of Alabama is consummated without the boundaries of
the state, the offender is liable to punishment therefor in Alabama; and venue in such case is in the county in which the
offense was commenced, unless otherwise provided by law.”).
127 *ALA. CODE §§ 15-2-3, 15-2-4; *ALASKA STAT. § 12.05.010; ARIZ. REV. STAT. ANN. § 13-108(A)(1); ARK. CODE
ANN. § 5-1-104(a)(1); CAL. PENAL CODE § 27(a)(1); COLO. REV. STAT. § 18-1-201(1)(a); DEL. CODE tit.11 § 204(a)(1);
FLA. STAT. ANN. §§ 910.005(1)(a), 910.006; GA. CODE § 17-2-1(b)(1); HAWAII REV. STAT. § 701-106(1)(a); IDAHO CODE
§ 18-202(1); 720 ILL. COMP. STAT. ANN. § 5/1-5(a)(1); IND. CODE ANN. § 35-41-1-1(b)(1); IOWA CODE ANN. §

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claim is where an individual outside the state attempts or conspires to commit a crime within the
state;128 or one within the state attempts or conspires to commit a crime beyond its boundaries.129
Still others define the state’s extraterritorial jurisdiction to include instances where the victim of
homicide, fatally wounded outside of the state, dies within it;130 where property stolen elsewhere
is brought into the state;131 or where conduct outside the state constitutes the failure to comply
with a legal duty imposed by state law.132
803.1(1)(a); KAN. STAT. ANN. § 21-5106(a)(1); KY. REV. STAT. § 500.060(1)(a); LA. CODE CRIM. PRO. art. 611; ME. REV.
STAT. ANN. tit.17-A § 7(1)(A); MICH. COMP. LAWS ANN. § 762.2(1)(a); MINN. STAT. ANN. § 609.025(1); *MISS. CODE
§§ 99-11-15, 99-11-17; MO. ANN. STAT. § 541.191(1)(1); MONT. CODE ANN. § 46-2-101; N.H. REV. STAT. ANN. §
625:4(I)(A); N.J. STAT. ANN. § 2C:1-3(a)(1); N.Y. CRIM. PRO. LAW § 20.20(1)(a); *N.C. GEN. STAT. § 15A-134; *N.D.
CENT. CODE § 29-03-01; OHIO REV. CODE § 2901.11(A)(1); OKLA. STAT .ANN. tit. 21 § 151(1); ORE. REV. STAT. §
131.215(1); PA. STAT. ANN. tit. 18 § 102(a)(1); *S.D. CODIFIED LAWS § 23A-16-2; *TENN. CODE ANN. § 39-11-103(b);
TEX. PENAL CODE § 1.04 (a)(1); UTAH CODE ANN. § 76-1-201(1)(a); VT. STAT. ANN. tit.13, § 2; WASH. REV. CODE ANN.
§ 9A.04.030; WIS. STAT. ANN. § 939.03 (1)(a).
*Statutes which phrase the extraterritorial jurisdiction statement in terms of offenses commenced in one state and
consummated in another state, rather than in terms of elements.
128 ARIZ. REV. STAT. ANN. § 13-108(A)(2) (attempt and conspiracy); ARK. CODE ANN. § 5-1-104(a)(2), (3) (attempt and
conspiracy); COLO. REV. STAT. § 18-1-201(1)(b), (c) (attempt and conspiracy); DEL. CODE tit.11 § 204(a)(2)
(conspiracy); FLA. STAT. ANN. § 910.005 (1)(b),(c) (attempt and conspiracy); GA. CODE § 17-2-1(b)(2) (attempt);
HAWAII REV. STAT. § 701-106(1)(b), (c) (attempt and conspiracy); 720 ILL. COMP. STAT. ANN. § 5/1-5(a)(2), (3) (attempt
and conspiracy); IND. CODE ANN. § 35-41-1-1(b)(2), (3) (attempt and conspiracy); IOWA CODE ANN. § 803.1(1)(b), (c)
(attempt and conspiracy); KAN. STAT. ANN. § 21-5106(a)(2), (3) (attempt and conspiracy); KY. REV. STAT. §
500.060(1)(b), (c) (attempt and conspiracy); ME. REV. STAT. ANN. tit.17-A, § 7(1)(B), (C) (attempt and conspiracy);
MICH. COMP. LAWS ANN. § 762.2(1)(b), (c) (attempt and conspiracy); MO. ANN. STAT. § 541.191(1)(2) (attempt and
conspiracy); MONT. CODE ANN. § 46-2-101(b) (attempt); N.H. REV. STAT. ANN. § 625:4(I)(b), (c) (attempt and
conspiracy); N.J. STAT. ANN. § 2C:1-3(a)(2),(3) (attempt and conspiracy); OHIO REV. CODE § 2901.11 (A)(3) (attempt
and conspiracy); ORE. REV. STAT. § 131.215(2), (3) (attempt and conspiracy); PA. STAT. ANN. tit.18 § 102(a)(2), (3)
(attempt and conspiracy); TEX. PENAL CODE § 1.04(a)(2), (3) (attempt and conspiracy); UTAH CODE ANN. § 76-1201(1)(b), (c) (attempt and conspiracy); WIS. STAT. ANN. § 939.03(1)(b) (conspiracy).
129 ARIZ. REV. STAT. ANN. § 13-108(A)(3) (attempt and conspiracy); ARK. CODE ANN. § 5-1-104 (a)(4) (attempt a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A94-166. Public record. Not legal advice.