Recent decisions of the United States Court of Appeals for the District of Columbia Circuit: Criminal law

George Washington Law Review

Volumn 74, Issue 4, 2006, Pages 754-770

  Knights, Mark ^a  

^a NONE

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EID: 33749605140     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (178)

1. United States v. Delgado-Garcia, 374 F.3d 1337, 1339 (D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005). The dissenting opinion suggests that the ship was headed to Guatemala. Id. at 1358 (Rogers, J., dissenting). The ship's ultimate destination is not relevant to the issues in this case, save that it was somewhere other than the United States.
2. Immigration and Nationality (McCarran) Act § 274(a), 8 U.S.C. § 1324(a) (2000) (criminalizing the act of bringing in or harboring illegal aliens); Delgado-Garcia, 374 F.3d at 1340.
3. Delgado-Garcia, 374 F.3d at 1340.
4. United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005).
5. Id. at 1343.
6. Id.
7. Id. at 1344-45.
8. Id. at 1339.
9. Id.
10. Id. at 1355; see also id. at 1358 (Rogers, J., dissenting).
11. Id. at 1339 (majority opinion).
12. Id.
13. Id. at 1339-40.
14. Id. at 1340.
15. Id. at 1339-40.
16. Id. at 1339.
17. Id. at 1340.
18. Id. Though it will be discussed at more length in the remainder of this case note, it should be noted that the D.C. Circuit only addressed the appellants' claim that § 1324(a) did not apply extraterritorially, holding that the other claims had been waived by the appellants' unconditional guilty pleas.
19. Id.
20. Id.
21. Cf. Yenkichi Ito v. United States, 64 F.2d 73, 74 (9th Cir. 1933) (discussing charges against defendant of "bringing into and attempting to bring into the United States and aiding, assisting, and abetting in bringing and attempting to bring into the United States" illegal aliens in "violation of section 8 of the Immigration Act of 1917").
22. See Immigration and Nationality (McCarren) Act § 274, 8 U.S.C. § 1324 (2000).
23. Id. § 1324(a).
24. Id.
25. Id. § 1324(b).
26. See, e.g., United States v. Delgado-Garcia, 374 F.3d 1337, 1344 (D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005).
27. Sandberg v. McDonald, 248 U.S. 185, 195 (1918).
28. Jonathan Turley, "When in Rome": Multinational Misconduct and the Presumption Against Extraterritoriality, 84 NW. U. L. REV. 598, 605 (1990). But see Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173-74 (1993) ("[T]he presumption has a foundation broader than the desire to avoid conflict with the laws of other nations.").
29. Delgado-Garcia, 374 F.3d at 1344.
30. See Corrine A. Falencki, Sarbanes-Oxley: Ignoring the Presumption Against Extraterritoriality, 36 GEO. WASH. INT'L L. REV. 1211, 1219-20 (2004).
31. Am. Banana Co. v. United Fruit Co., 213 U.S. 347 (1909).
32. Id. at 356-57 ("In cases immediately affecting national interests [the legislature] . . . may make, and, if they get the chance, execute, similar threats as to acts done within another recognized jurisdiction. . . . But the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts.").
33. Id.
34. United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945).
35. Id. at 443 ("[I]t is settled law . . . that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends.").
36. Id. at 443-44.
37. Foley Bros. v. Filardo, 336 U.S. 281 (1949).
38. Id. at 285-88.
39. Id. at 285.
40. Id. at 286.
41. Id. at 286-88.
42. EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991).
43. Id. at 246-47.
44. Id. at 258 (quotation omitted).
45. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).
46. Id. at 795-96.
47. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993).
48. Id. at 173-76.
49. Id. at 173 (discussing the role of the Attorney General under the statute).
50. Id. at 174 (discussing the usage of the words "return" and "deport" in the statute).
51. Id. at 174-76.
52. Id. at 176 ("It would have been extraordinary for Congress to make such an important change in the law without any mention of that possible effect."). Recently, in Small v. United States, 544 U.S. 385 (2005), the Court, in a related context, specifically rejected the contention that a clear statement was necessary to overcome a similar presumption. Id. at 388-90. Instead, the majority applied a "totality" approach, claiming that it was necessary to examine "statutory language, context, history, or purpose." Id. at 391. The Court's opinion suggests that it would likely apply this test to the presumption against extraterritoriality as well. See id. at 388-91.
53. United States v. Bowman, 260 U.S. 94 (1922).
54. Id. at 95-96. An alleged fourth co-conspirator, a British national, was not before the Court. Id.
55. Id. at 101-02.
56. Id. at 97-98.
57. Id. at 98.
58. Id.
59. Id.
60. Id. ("[T]o 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.").
61. Id. at 101-02.
62. Id. at 102.
63. Yenkichi Ito v. United States, 64 F.2d 73 (9th Cir. 1933).
64. At that time, the provisions were codified at 8 U.S.C. § 144. Id. at 74.
65. Id.
66. Id. at 74-75.
67. Id. at 75 ("The criminal jurisdiction of the government of the United States . . . may in some instances extend to its citizens everywhere . . . . But in all such cases it will be found that the law of [C]ongress indicates clearly the extraterritorial character of the act at which punishment is aimed." (quotation omitted)).
68. United States v. Delgado-Garcia, 374 F.3d 1337, 1359 (D.C. Cir. 2004) (Rogers, J., dissenting), cert. denied, 544 U.S. 950 (2005).
69. Id. at 1341 (majority opinion).
70. Id.
71. Id. at 1340-41.
72. Id. at 1344-45.
73. Id. at 1345.
74. Id. at 1340-43.
75. Id. at 1341.
76. Id.
77. Id. Though unexplained by the court, this argument was likely premised on the claim that § 1324(a) does not apply extraterritorially.
78. 18 U.S.C. § 3231 (2000).
79. Id. (emphasis added); Delgado-Garcia, 374 F.3d at 1341.
80. Delgado-Garcia, 374 F.3d at 1341 (quotation omitted).
81. Id. at 1342.
82. United States v. Cotton, 535 U.S. 625 (2002).
83. Id. at 630-31.
84. Delgado-Garcia, 374 F.3d at 1342.
85. Id.
86. United Nations Conference on the Law of the Sea Convention on the High Seas art. 6, Sept. 30, 1962, 13 U.S.T. 2312, 450 U.N.T.S. 82.
87. Delgado-Garcia, 374 F.3d at 1342.
88. Id.
89. Id.
90. Blackledge v. Perry, 417 U.S. 21 (1974).
91. Menna v. New York, 423 U.S. 61 (1975).
92. Delgado-Garcia, 374 F.3d at 1342. In Menna, for example, the appellant charged a violation of the Double Jeopardy Clause. Menna, 423 U.S. at 62.
93. Delgado-Garcia, 374 F.3d at 1341.
94. Id.
95. Id.
96. Id.
97. Id.
98. Id. Whether the argument against § 1324(a)'s extraterritorial application could be waived in the first instance is the only point on which the two judges in the majority disagreed. Judge Randolph concurred in Judge Sentelle's majority opinion, but wrote separately to note that a precedential decision, United States v. Idowu, 105 F.3d 728 (D.C. Cir. 1997), seemed to reach a different result. Delgado-Garcia, 374 F.3d at 1351 (Randolph, J., concurring). In Judge Randolph's view, because of the government's waiver, the issue did not need to be addressed. Id. Judge Rogers, in dissent, seems to have taken this approach as well. See id. at 1362 (Rogers, J., dissenting).
99. Id. at 1344 (majority opinion).
100. Id.
101. Id.
102. Id.
103. Id. at 1344-45.
104. Id. at 1345.
105. Id.
106. Id.
107. Id.
108. Id.
109. Id.
110. Id. at 1346.
111. Id.
112. Id.
113. Id. at 1347.
114. Id.
115. Id.
116. Id. at 1347-48.
117. Id. at 1347.
118. Immigration and Nationality (McCarran) Act § 274(b)(1), 8 U.S.C. § 1324(b)(1) (2000).
119. Delgado-Garcia, 374 F.3d at 1347.
120. Id.
121. For purposes of economy, portions of the majority opinion that only respond to minor points made by the dissent, and thus do not figure critically in the court's reasoning, are omitted. See id. at 1348-49 (discussing the Supreme Court's decisions in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), and F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 158 (2004)); see also id. at 1350-51 (discussing Department of Justice letter and foreign policy concerns).
122. Id. at 1347.
123. Id. at 1351-52 (Rogers, J., dissenting).
124. Id.
125. Id. at 1351.
126. Id. at 1354.
127. Id.
128. Id. (quotation omitted).
129. Id. at 1345-46 (majority opinion) ("[T]he citizenship of the defendants . . . is irrelevant. While Bowman did qualify its holding by noting that no aliens were before the Court, Bowman's logic did not depend on this fact.").
130. Id. at 1354 (Rogers, J., dissenting).
131. Id.
132. Id. at 1355.
133. Id. at 1346 (majority opinion).
134. Id.
135. Id. at 1355 (Rogers, J., dissenting).
136. See id. at 1353.
137. Id.
138. Id. at 1348 (majority opinion). The dissent questioned the legitimacy of this interpretation: "[T]he Supreme Court [in Sale] stated that '[e]ven if [the provision respecting the return of refugees] were not limited to strictly domestic procedures, the presumption that Acts of Congress do not ordinarily apply outside our borders would support an interpretation . . . as applying only within United States territory.'" Id. at 1354 (Rogers, J., dissenting) (all except first alteration in original) (emphasis added) (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173 (1993)).
139. Id. at 1348 (majority opinion).
140. Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 1901-1904 (2000).
141. Delgado-Garcia, 374 F.3d at 1356 (Rogers, J., dissenting).
142. See id. (citing 46 U.S.C. § 1903(h), which provides that it "is intended to reach acts . . . committed outside the territorial jurisdiction of the United States").
143. Id. at 1349 (majority opinion). Unconvinced, the dissent noted in conclusion that it seemed unlikely that a statute authorizing maritime drug interdiction would not apply on the high seas. Id. at 1356 (Rogers, J., dissenting); see also Brulay v. United States, 383 F.2d 345, 350 (9th Cir. 1967) (holding that drug smuggling satisfied the Bowman rule based on "the nature of the offense").
144. Delgado-Garcia, 374 F.3d at 1349.
145. Id. at 1359-60 (Rogers, J., dissenting).
146. Id.
147. See id. at 1350 (majority opinion).
148. Id.
149. Id.
150. Id.
151. See generally supra Part C.2. It is notable that all of the Supreme Court's recent decisions regarding the presumption against extraterritoriality have been in the context of civil cases; the Court has not examined the operation of the presumption with regard to criminal laws in quite some time. As a result, Bowman remains the key decision in this area.
152. United States v. Bowman, 260 U.S. 94, 97-98 (1922) ("The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations.").
153. See, e.g., United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003); see also United States v. Larsen, 952 F.2d 1099, 1100 (9th Cir. 1991) ("Congress is empowered to attach extraterritorial effect to its penal statutes so long as the statute does not violate the due process clause of the Fifth Amendment.").
154. See generally Small v. United States, 544 U.S. 385, 389-90 (2005); Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173-76 (1993); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285-88 (1949).
155. See Yousef, 327 F.3d at 86.
156. Maritime Drug Law Enforcement Act § 3(h), 46 U.S.C. § 1903(h) (2000).
157. Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 938 (D.C. Cir. 1988); see also United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir. 1983) ("If it chooses to do so, [Congress] may legislate with respect to conduct outside the United States, in excess of the limits posed by international law."); United States v. Howard-Arias, 679 F.2d 363, 371-72 (4th Cir. 1982) ("[T]he United States may violate international law principles in order to effectively carry out this nation's policies.").
158. United States v. Bowman, 260 U.S. 94, 98 (1922).
159. See Brulay v. United States, 383 F.2d 345, 350 (9th Cir. 1967) (holding that drug smuggling, which "by its very nature involves foreign countries" and "always requires some action in a foreign country," satisfies the Bowman rule).
160. United States v. Delgado-Garcia, 374 F.3d 1337, 1345-46 (D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005).
161. See Bowman, 260 U.S. at 98 ("[Some crimes] are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute."); United States v. Yousef, 327 F.3d 56, 87 (2d Cir. 2003) ("Congress is presumed to intend extraterritorial application of criminal statutes where the nature of the crime does not depend on the locality of the defendant's acts and where restricting the statute to United States territory would severely diminish the statute's effectiveness.").
162. Delgado-Garcia, 374 F.3d at 1358 (Rogers, J., dissenting).
163. See United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990).
164. Id. at 1069 ("Although Congress is not bound by international law in enacting statutes, out of respect for other nations, courts should not unnecessarily construe a congressional statute in a way that violates international law." (citation omitted)).
165. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).
166. Id. at 118.
167. See United States v. Yousef, 327 F.3d 56, 91 n.24 (2d Cir. 2003); see also Ford v. United States, 273 U.S. 593, 623 (1927) ("The principle that 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, is recognized in the criminal jurisprudence of all countries." (quotation omitted)); Strassheim v. Daily, 221 U.S. 280, 285 (1911) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.").
168. Yousef, 327 F.3d at 91 n.24. Yousef identified several other bases of jurisdiction in international law that are not relevant to this inquiry: acts of a state's own citizens while abroad; acts that harm a state's citizens abroad; and acts universally reviled by all civilized nations. Id. When applied, these principles encompass a wide range of conduct; nevertheless, extraterritorial application of some statutes might prohibit harm occurring outside the borders of the United States that is not of a degree to warrant congressional intervention, and thus fail the intermediate test. See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 158 (2004) (holding that the Sherman Act does not apply to foreign anticompetitive conduct independent of domestic effects). Empagran, though a civil antitrust suit, has an obvious counterpart in the criminal arena.
169. Yousef, 327 F.3d at 86. See generally Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV. 1217 (1992) (arguing that federal courts should recognize Fifth Amendment limits on extraterritoriality).
170. Yousef, 327 F.3d at 111.
171. See id. at 91 n.24; United States v. Peterson, 812 F.2d 486, 493 (9th Cir. 1987) ("Where an attempted transaction is aimed at causing criminal acts within the United States, there is a sufficient basis [or nexus] for the United States to exercise its jurisdiction.").
172. United States v. Delgado-Garcia, 374 F.3d 1337, 1343 (D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005). The appellants actually did raise a due process claim, arguing that there was no "nexus" between their conduct and the United States. Id. at 1340.
173. See id. at 1351 (Randolph, J., concurring).
174. See Peterson, 812 F.2d at 493.
175. Delgado-Garcia, 374 F.3d at 1344.
176. Id. at 1345.
177. Id.
178. Id.