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Chief Judge Marsha J. Pechman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

HENRY ROSENAU,

Defendant.

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NO. CR06-157MJP

GOVERNMENT’S ADDENDUM

TO REPLY RE: RENOTING

Noted: March 16, 2012

The United States of America, by and through Jenny A. Durkan, United States

Attorney for the Western District of Washington, and Susan M. Roe and Marc A. Perez,

Assistant United States Attorneys for said District, files this short Addendum to its Reply

to the Defendant’s Opposition to the Renoted Motion for Authorization to Depose

Foreign Witnesses.

Gerald Auerbach, of the General Counsel’s Office for the United States Marshal

Service (USMS), responded to the government’s inquiry regarding its ability to maintain

custody of a federal prisoner in a foreign country. He cited In Re Neagle, 135 US 1

(1890) for the basis of authority regarding the USMS in the United States. Although

broad within the U.S., the case limits the USMS authority to the United States.

We hold it to be an incontrovertible principle that the

government of the United States may, by means of physical

force, exercised through its official agents, execute on every

GOVERNMENT’S ADDENDUM TO REPLY

RE: RENOTED MOTION/ ROSENAU- 1

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 86 Filed 03/19/12 Page 1 of 3
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foot of American soil the powers and functions that belong to

it. This necessarily involves the power to command

obedience to its laws, and hence the power to keep the peace

to that extent. . . . Emphasis added.

The USMS organic statute, Title 28, United States Code, Section 561, et seq., is

consistent with the limitations of authority to United States “territorial jurisdiction,”

which is defined in Title 18, United States Code, Section 5, to “all places and water,

continental or insular, subject to the jurisdiction of the United States, except the Canal

Zone.”

Canada is not “American soil” or within the United States territorial jurisdiction.

Therefore, the USMS which has no power on foreign soil unless specifically granted by

that sovereign, cannot retain custody of a federal prisoner while in Canada.

Mr. Rosenau is in federal custody and unable to physically attend depositions in a

foreign country.

DATED this 19th day of March, 2012.

Respectfully submitted,

JENNY A. DURKAN

United States Attorney

s/Susan M. Roe 

SUSAN M. ROE

Assistant United States Attorney

United States Attorney’s Office

700 Stewart Street, Suite 5220

Seattle, WA 98101-1271

Telephone: (206) 553-1077

Fax: (206) 553-0755

E-mail: susan.roe@usdoj.gov

s/Marc A. Perez

Marc A. Perez

United States Attorney's Office

1201 Pacific Avenue, Suite 700

Tacoma, Washington 98402

Telephone: (253) 428-3822

Fax: (253) 428-3826

Email: Marc.Perez@usdoj.gov

GOVERNMENT’S ADDENDUM TO REPLY

RE: RENOTED MOTION/ ROSENAU- 2

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 86 Filed 03/19/12 Page 2 of 3
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CERTIFICATE OF SERVICE

I hereby certify that on March 19, 2012, I electronically filed the foregoing with

the Clerk of Court using the CM/ECF system which will send notification of such filing

to the attorney of record for the defendant.

s/ Kathleen M. McElroy 

KATHLEEN M. McELROY

Paralegal Specialist

United States Attorney’s Office

700 Stewart, Suite 5220

Seattle, Washington 98101-1271

Phone: 206-553-7970

Fax: 206-553-0755

E-mail: Katie.McElroy@usdoj.gov

 

GOVERNMENT’S ADDENDUM TO REPLY

RE: RENOTED MOTION/ ROSENAU- 3

CR06-157MJP

UNITED STATES ATTORNEY

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

(206) 553-7970

Case 2:06-cr-00157-MJP Document 86 Filed 03/19/12 Page 3 of 3