UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________ ) UNITED STAT ES O F AMERICA, ) ) v. ) ) Cr im inal Action No. 10-224 (RM C) NEIL CAMP BEL L, ) ) Defendan t. ) ____________________________________)

MEMORAN DUM OP INION Neil Campbell is an Australian cit i z en who was a senior construction manag er associate d with the I nterna tional Org anization for M igr ation (“I OM”) in Afg hanistan, working on
contra cts funded by

the U.S. Ag ency

for I nterna tional D evelopment (“U SAI D”)

. He is c harg ed in

a one-c ount I ndictment with soli ci t at i o n of a bribe by an ag ent of an org anization rec eiving more than $10,000 in fe d er al fu n ds, a violation of 18 U.S.C. § 666(a) (1)( B) (“§ 666”). He moves to dismiss the I ndictment, arg uing, in part, that § 666 does not extend bey ond the domestic boundarie s of the United States to his alleg ed criminal conduct in Afg hanistan. Mr. Campbell’s motion raises

a most intriguing question of acc ommodating two distinct lines of analy sis from the Supreme Court:
one, in a criminal context, was set out in 1922, has never been overturne d, and would arg uably allow
t h i s p rosec ution; the second, mostly in a civil context, has been most emphatica lly proclai m ed i n

rec ent y ear s and would arg uably bar it. Not surprising ly , the Gover nment would hold the law to the benchma rk set in 1922, under

which its prosec ution meets statutory and constitutional measure s. As a lower court, thi s Court cannot ignore what neither the S upreme Court nor t he D.C. Circuit ha s decla

red outmoded. Mr. Campbell’s reme dy , if any , must come from elsewhe re.His motion wil l be denied.
I. F ACTS ALLE GED The following fac tual alleg ations are taken fro m th e I n d ic tm e nt. See I ndictment [Dkt. # 6]. As rele vant, I OM is an interg overnme ntal orga n i z at i o n that is providing healthca re and educational support to the Afg hani g overnme nt, working with the Afg hanistan Ministries of Public Hea lth and Educa tion to construc t h ospitals, midwifery training schools and provincial teac her training colleg es. USAI D is an indepe ndent fe dera l gove rnmental a g ency . I t is the principle U.S.
ag ency that extends assistance to fore ign nations to support U.S. fore ign policy objectives by supporting economic gro wt h , ag ricultural development, conflict preve ntion, g lobal health, and development relief

. Since 2002, USAI D has provided more than $260 milli on to I OM for

rec onstruction eff

orts in Afg hanistan throug h five c ontrac ts known as coope rative a g ree ments. Mr. Campbell has worke d with I OM since J anuar y 2009 as a senior construction
manag er in Afg hanistan. He devoted his attention to the USAI D-sponsore d Construction of Hea lth

a nd Educa tion Fa cilities (“CHEF ”) prog r a m p u r s u a n t to c o o p e r a

ti v e a g r e e me n t # 3 0 6

- A

- 0 0

- 0 8

- 0 0 5 1 2 betwee n USAI D and I OM. Mr. Campbell was also a member of a panel that selec ted subcontrac tors for various CHEF construction projec ts. On or about May 25, 2010, I OM awa rded two subcontrac ts from the CHEF prog ram to subcontrac tor AB C (“A BC”) , a construction company in Afg hanistan. The first subcontrac t w as worth $13,470,947.65 for the c onstruction of a hospital in Afg hanistan. The second subcontrac t awa rded to AB C was worth $1,950,187.00 fo r t h e construction of a provincial tea cher

training colleg e in Afg hanistan. The I ndictment al l ege s that on or about J uly 7, 2010, Mr. Campbell met in Kabul, Afg hanistan with an underc over investiga tor from the USAI D Offic e of I nspector Gene ral, who was

-2-posing as a repr esenta tive of AB C. Mr. Campbell reque sted a one-time cash pay ment of $190,000 in United S tates currenc y to allow ABC to continue to work on the hos pital an d colleg e projects. Alleg edly , Mr. Campbell stated that he “g ot [AB C] $14 milli on worth of work” and “one hundred and ninety thousand dollars is nothing for the risk I am taking. ” I n d i ct m en t ¶ 7 (Count 1). Mr. Campbell told the underc over investiga tor that he pref err ed a cash pay

ment to a wire transfe r beca use he wanted to elude law enfor ceme nt. He alleg edly stated that “people [t hat] do what I do, they , y ou know, I ’m 60 y ear s old. I don’t need to do 10 y ear s in ja il, that’ s the end of my life.” Id

. ¶ 8. The underc over investiga tor asked about future subcontrac ts that Mr

. Campbell could obtain for AB C, and Mr. Campbell responde d, “We’ll have to wait for USAI D to g ive us the money .” Id

. ¶ 9. The meeting conclude d with Mr. Campbell agr eeing to meet the underc over investiga tor ag ain in approximately six wee ks to acc ept the one-time cash pay ment. Mr. Campbell insisted that the next meeting transpire at nig ht beca use it would be dar

k. The I ndictment further alleg es that on or about Aug ust 5, 2010, Mr. Campbell ag ain met with the underc over inve stiga tor, who explained that he ha d encounte red diff iculties secur ing the entire $190,000 pay

ment, and offe red Mr. Campbell $10,000 in U.S. curr ency in cash as a g ood faith pay ment. Mr. Campbell acc epted the $10,000 pay ment, counted the bills, and direc ted that the

rema ining pay

ment of $180,000 be made in a single lump-sum pay ment. Mr. Campbell explained, “[T] he thing g oes likewise, y ou know, I ’m making some money , but also I ’m making , um, the g uy at USAI D and [ I OM] and the people of Afg hanistan a very g ood product.” Id

. ¶ 12. For the next and final pay

ment, Mr. Campbell instructed the underc over i nvestig ator that, rathe r than call, he should send Mr. Campbell a tex t messag e with the s pecif ic m essag e: “I have some nice coins for
y ou to look a

t.” Id

. ¶ 13. Mr. Campbell also instructed the underc over investiga tor to “ g o out and

-3-buy a ten dollar briefc ase and put [t he $180,000] in the ten dollar brief case ” for Mr. Campbell. Id

. Acc ording ly , the I ndictment alleg es that “[o] n or about May 25, 2010 and continuing throug h on or about Aug ust 5, 2010, in Kabul, Afg hanistan, C AM PBEL L did corr uptly solicit, demand, acc ept and ag ree to acc ept a thing of value, that is $190,000 in United States curr ency , from Under cover [i nvestig ator], intending to be influence d and rew arde d in connec tion with a transac tion and series of transac tions of USAI D inv o l v i n g $5,000 or more” in violation of 18 U.S.C. § 666(a) (1)( B)

. Id . ¶ 14.

The United States initia t ed s ea led criminal proce eding s ag ainst Mr. Campbell by filing a criminal complaint on J uly 23, 2010, and the I ndictment followed on Aug ust 19, 2010. The 1

case was unseale d on October 12, 2010. Mr. Campbell was arr ested in I ndia on Fe bruar y 11, 2011, and there afte r broug ht to the United States for prosec ution. The I ndictment contains one count under 18 U.S.C. § 666(a) (1)( B) and a claim for criminal forf eiture under 18 U.S.C. § 981(a) (1)( C) and 28 2

The criminal complaint allege d t h at M r. Campbell violated 41 U.S.C. § 53 (soliciting a 1 kickbac k) and 18 U.S.C. § 666(a) (1)( B) , see Criminal Compl. [Dkt. # 1], but Mr. Campbell was only indicted under

§ 666. I n rele vant par

t, the statute rea ds: 2 § 666. Theft or

bribery conce rning prog rams re ceiving Fe dera l funds (a) Whoever, if the c ircumstance descr ibed in subsection (b) of this section exi sts– (1) being an age n t of an org anization, or of a State, local, or I ndian tribal g overnme nt, or any

ag ency there of– (A) embezzles, steals, obtains by fra ud, or otherwise without authority knowing ly conver ts to the use of any perso n o t h er t h an the rig htful owner or intentionally misapplies, property

that– (i) is valued a t $ 5,000 or more, a nd (ii) is ow ned by , or is unde r the car e, custody , or control of such org anization, g overnme nt, or ag ency ; or (B ) corr uptly solicits or demands for the benef it of any person, or acc epts or ag ree s to acc ept, any

thing of value from any person, intending to be influence d or rew arde d -4-U.S.C. § 2461(c)

. Mr. Campbell moved to dismiss the I ndictment on May 23, 2010, and following

oral a rg ument on J uly

15, 2011, the motion is now ripe for de cision.

II. LEGAL STANDARD A motion to dismiss challeng es the adequa cy of the i n d i ctm ent on its fac e. A defe ndant may move to dismiss an indictment on the g rou n d s that it “fa ils to invoke the court’s jurisdiction or to state an offe nse.” Fe d. R. Crim. P. 12(b)( 3)(B ). I n ruling on a motion to dismiss ,
a court views the indictment as a whole and assumes its fac tual alleg ations to be true. Boyc e Motor

i n connection with any business, transac tion, or series of transac tions of s u ch org anization, g overnme nt, or ag ency involving any thing of value of $ 5,000 or more; or (2) corr uptly g ives, offe rs, or ag ree s to g ive any thing of value to a

ny person, with intent to influence or rew ard an ag ent of an org anization or of a State, local or I ndian tribal g overnme nt, or any ag ency there of, in connec tion with any business, t ra n saction, or series of transac tions of such org anization, g overnme nt, or ag ency involving any

thing of value of $ 5,000 or more; shall be fined unde r this titl e, imprisoned not more tha n 10 y ear s, or both. (b) The circ umstance ref erred to in subsection (a) of this section is that the org anization, g overnme nt, or age n cy rec eives, in any one y ear period, benef its in excess of $ 10,000 under a Fe dera l prog ram involving a g rant, contra ct, subsidy , loan, g uara ntee, insura

nce, or other for m of Fe dera l assistance. (c) This section does not appl y t o b o n a fide salary , wag es, fee s, or other compensa tion paid, or expenses paid or reimburse d, in the usual course of business. (d) As use d in this section– (1) the term “ag ent” means a person authorized to act on behalf of another person or a g overnme nt and, in the case of an org anization or g overnme nt, includes a serva nt or employ ee, a

nd a par tner, dire ctor, off

icer , manag er, a

nd repr esenta tive;

. . . . . (5) the term “in any one-y ear period” means a continuous period that commence s no ear lier than twelve months be fore the commission of the offe nse or that ends no later than twelve months afte r the commission of the offe nse. Such period may include time both befor e and a fter the commission of the offe nse. -5-Lines v. United States , 342 U.S. 337, 343 n.16 (1952); see also United States v. Ferris , 807 F.2d 269,

271 (1st Cir. 1986). The question is usually whether the alleg ations, if proven, would be sufficie nt
to permit a jury to find that the crimes char g ed wer e committed. United States v. Sampson , 371 U.S. 75, 76 (1962).
I n this case, howe ver, Mr . Campbell’s first t hree challeng es t o the I ndictment steer clea r of its fac tual alleg ations, except as to their locus. Rather, he contends that the criminal statute
at issue, § 666, does not rea ch his conduct occur ring outside the domestic boundarie s of the United States and, there fore , the I ndict m en t m u s t b e dismiss ed beca use all alleg ed events happene d in Afg hanistan. Mr. Campbell further arg ues that his prosec ution violates his rig hts to due proce ss and transg resse s customary international law. These arg uments implicate the merits of Mr. Campbell’s
prosec ution a

nd not the Court’s subject-matter jurisdiction. See United States v. Delgado-G arcia , 374 F.3d 1337, 1341–43 (D.C. Cir. 2004) (cr iminal prosec ution); Morrison v. Nat’l Australian Bank Ltd. , 130 S. Ct. 2869, 2877 (2010) (civil litigation). The Court maintains orig inal jurisdiction under 18 U.S.C. § 3231, which vests orig inal jurisdiction in the district courts over all offe nses ag ainst the laws of the United States. See 18 U.S.C. § 3231. I n the end, the “district court’s subject m att er jurisdiction

. . . include[s] the power to decide whether the indictment char g ed a proper ‘off ense.’ ” Delgado-G arcia , 374 F.3d a t 1342. III. LE GA L ANALYSIS

Mr. C am p b el l advanc es four rea sons to dismiss the I ndictment: 1) he cannot be
prosec uted beca

us e § 666 cannot be applied extraterritorially ; 2) application of § 666 extraterritorially violates his rig hts to due proce ss; 3) prosec ution of Mr. Campbell violates customary international law; and 4) the I ndictment err oneously identifies hi m as an em p loy ee of

-6-I OM, which he is not, and he is there fore not s u b j ec t t o p ro s ecution under § 666. These will be addre ssed in turn.

A. Extrat err itoriality of S ect ion 666 A statute applies extraterritorially when it rea ches conduct occur ring outside the territori al limit s of the United States. The I ndictment alleg es criminal acts committed entirely bey ond the border s of the United States – in Afg hanistan – and the Gover nment does not rely on any theory of territoria l jur isdiction to support Mr. Campbell’s prosec ution. See Opp’n [Dkt # 22] at 5 n.3. Acc ording ly , the Go vernme nt’s prosec ution under this I ndictment depends upon the extraterritorial a

pplication of § 666. Courts have long rec og nized a presumption agai n s t reading a statute to have extraterritorial eff

ect. “I t is a ‘long standing principle of Americ an law that leg islation of Congr ess, unless a contra

ry intent appea

rs, is meant to apply only within the territoria l jurisdiction of the United States.’” Morrison , 130 S. Ct. at 2 8 7 7 (quoting EEOC v. Arabian Am. Oil Co. (“ Aramco ”), 499 U.S. 244, 248 (1991) (super seded by Civil Rights Act of 1991, Pub. L

. No. 102-166, § 105, 105 Stat. 1071)). “This principle repr esents a canon of construction, or a presumption about a statute’s meaning , rathe r than a limit upon Congr ess’s power to leg islate.” Id

. “I t rests on the perc eption that Congr ess ordinarily leg islates with respe ct to domestic, not fore ign matters.” Id

. There fore , “unless there is the aff

irmative intention of the Congr ess clea rly expressed” to g ive a statute extraterritorial eff ect, “we must presume it is primarily conce rned with domestic conditions.” Aramco , 499 U.S. at 248. Despite this see m i n gly unequivoca l pronounce ment, the Supreme Court ear lier cautioned that “the same rule of interpre tation should not be applied to criminal statutes which are ,
-7-as a class, not logic ally depende nt on their locality for the Gover nment’s jurisdiction, but are enac ted beca use of the rig ht of the Gover nment to defe nd itself ag ainst obstruction, or fra ud wher ever perpe trated, espec ially if committed by i t s o wn cit izens, office rs or ag ents.” United States v. Bowman , 260 U.S. 94, 98 (1922). Mr. Campbell urg es the Court to follow t h e m o d er n principle exemplified by Morrison and insist that the Gover nment point to a text ual basis in the statute to support the ex trater

ritorial reach of

§ 666; the Gover

nment responds that Bowman has never been

overr uled or distinguished, that the alleg ed crime here constituted a fra ud ag ainst the United States, and that the r easoning of Bowman applies four -squar e.

Bowman conce rned a criminal indictment char g ing “conspira cy to defr aud a corpor ation in which the United S tates was and is a st ockholder ,” i.e. , the Unit ed S tat es S h i p p ing Boa rd Emerg ency Flee t Corporation, afte r defe ndants submitt ed a false claim for fuel oil for one of its steamships. 260 U.S. at 95. The plot was hatche d at sea and at the port and city of Rio J aneir o, Br azil. Id. at 96. The district court conclude d that the absenc e of any statutory ref ere nce to conduct
at s ea require d it to construe the statute “not t o extend to acts commit ted on t he high s eas.” Id. at 97. On re view, the Supre me Court rea soned:

The nece ssary locus [of a crime], when not specific ally define d, depends upon the purpose of Congr ess as evince d by the descr iption and natur e of the crime a

nd upon the t err itorial limit ations upon the power and jurisdiction of a g overnme nt to punish crime under the law of nations. Crimes ag ainst private individuals or their proper ty , like assaults, murder, b u rglary , larc eny , robber y , arson, embezzlement, and fra uds of all kinds, w hich aff ect the peac e and g ood order of the community , must of course be committed wi t h i n the territoria l jurisdiction of t he gover

nment where i t may proper ly exercise it. I f punishme n t o f t h em is to be extended to include those committed outside of t he st rict t err ito rial j urisdiction, it is natura l for Congre ss to say so in the statute, and failure to do so will neg ative the purpose of Cong ress in this reg ard. . . .

-8-But the same rule of interpre tation should not be applied to criminal statutes which are , as a class, not logic ally depende nt on their locality f or the Gover

nment’s jurisdiction, but are enac ted beca use of the rig ht of the Government to defe nd itself ag ainst obstruction, or fra ud wher ever perpe trated, espec ially if committed by its own ci t i zens, office rs, or ag ents. Some such offe nses can only be committed within the territoria l jurisdiction of the Gover nment beca

use of the local acts require d to c onstitut e them. Other s are such that to limit the ir locus to the strictly territoria l jurisdiction would be g rea tly to curta il the scope and usefulness of

the statute and le ave ope n a larg e immunit y for fra uds as easily committed by citiz en s o n the high seas and in fore ign countries as at home. I n such case s, Congr ess has not thought it nece ssary to make specific provision in the law that the locus shall include the high seas and fore ign coun t ri es , but allows it to be inferr ed fr om the nature of the off ense. Id. at 97–98. The criminal statute under which the Bowman indictment was broug ht was “dire cted
g ener ally ag ainst whoeve r prese nts a false claim ag ainst the United States, knowing it to be such, to
any office r of the civil, milit ary or naval service or to any depar tment there of, or any corpor ation in which the United States is a stockholder, or whoeve r connives at the same by the use of any cheating device , or whoeve r enter s a conspirac y to do these things.” Id

. at 101. The statute had only rec ently been amende d to proscr ibe false claims to corpor at i o n s in which the U.S. was a stockholder, evidently to protec t the Emerg ency Flee t C o rp o ra t i o n which “wa s expected to eng ag e in, and did
eng ag e in, a most extensive ocea n transporta

tion business and its ships wer e seen in ever y g rea t port of the world open during the [First World War].” Id. at 102. The Court noted, “We can not suppose,” under such circ umstances, that Congr ess “did not have in mind that a wide field for such fra uds upon the Government was in private and public vessels .

. . bey ond the l and jurisdi ction of the United States, and there fore intend to include them” in the statute’s co v er age. Id. The Court conclude d that “[i] t needs no for ced c onstruction to interpret [the law] as we ha ve done.” Id

.
-9-The D.C. Circuit in United States v. Delgado-G arcia further expli cate d the analy sis

to deter mine the extraterritorial rea ch of criminal leg islation. 374 F.3d 1337 (D.C. Cir. 2004). The alien defe ndants in Delgado-G arcia wer e char g ed with (1) conspirac y to encour ag e or induce aliens
to come into the U.S. knowing that it would violate U.S. law and (2) attempt to bring unauthorized al iens into the U.S., in violation of various subsections of 8 U.S.C. § 1324. Id

. at 1 3 4 0 , 1 3 4 4

. Def endants had been opera ting a s ea vessel overcrow ded with Ecua dorian nationals intending for the passeng ers to disembark in Mexi co, and then enter the U.S. by land and without authorization. The boat was stopped by a U.S. Navy ship off the Guatema lan coast. Def endants abandone d the vessel and left their passeng ers to their fate s; defe ndants wer e later indicted and pled g uilty to crimes under § 1324(a) (1) and (a) (2), afte r protesting that they could not be prosec uted for acts outside the territory of the U.S. See id . at 1339–40. The D.C. Circuit held that “[b] oth of these statutes apply extr at er ri torially .” Id

. at 1344. I t expl ained that the pr esumption ag ainst ext rate rritorial a pplication was ove rcome : This pres u m p tion ag ainst extraterritorial application of domestic statutes is based on the assumption that Congr ess is primari l y conce rned with domestic conditions. This presumption em bodies sensi ble contextual linguistic rea sons for rea ding the plain text s of domestic statutes not to apply ever y wher e in the world. Beca u se Congr ess’s primary are na of s overe ignty is the territoria l United States, it makes sense to presume, absent other evidenc e, that i ts commands linguisticall y apply only there

. There fore , we presumptively rea d the text of con gre s s ional statutes not to apply extraterritorially , unless there are contextual reasons for rea ding the text otherwise.

. . . Contex t u al re asons, in our view, supply the “af firmative evidenc e” the Supreme Court require s to overc ome the presumption.

. . . [W ]e ag ree with the Second Circuit’s stateme nt [i n Kolli as v. D & G Marine Maintenance , 29 F.3d 67, 71 (2d Cir. 1994)]

. . . that “all

-10-statutes, without exception, [shoul d] be construed to apply within the United States only , unless a contra ry int en t ap pear s.” Our point is that contextual fac tors show that Congr ess had a contra ry i n tent in this case. Id. (interna l quotation marks and citations omitted). The presumption ag ainst ex t ra t er ri torial enfor ceme nt ref

lects a “sensible caution” that is depende nt on “conting ent rea l-world assumptions.” Id

. at 1345. A court must not “re ad the statute based on the r esult of its own pol icy analy sis,” but “apply the canons of construction to interpre t, not rew rite, cong ressional acts” and, in examining the
text , should “consider

both contextual and tex tual evidenc e.” Id. As to context, the Circuit noted that § 1324(a) is conce rned with more than domestic conditions as it “prote cts the border s of the United States ag ainst i l l egal immigra tion” and would
natura lly “re ach those outside the borders.” Id

. The statute’s text su p p o rt ed the s ame conclusion beca use inducing an immigra

nt to enter the U.S. illega lly and attempting to bring an immigra nt into the U.S. illega lly nece ssarily require the immigra nt to be located initially outside the United States. The Circuit explained that it was very likely that the perpe trator of such a crime would be phy sically proxi mate to the immigra nt in committing the crime. Id

. at 1345–48. The Circuit further noted that the “lang uag e of § 1324( a) is distinctive, not boilerplate, and applies t o a g rea t many acts that one customarily

would expect to occur

overse as.” Id . at 1348. Mr. C ampbell relies upon the S upreme Court’s 2010 Morrison decision, and other simil ar case s, which require an “af firmative intention of the Congr ess clea rly expressed” for a statute
to have an extraterritorial eff ect. See, e.g., Aramco , 499 U.S. at 248. Morrison scolds those courts that eng ag e in “judicial-spe culation-made -law – divining what Congr ess would have wanted if it had thought of the situation befor e the court.” 130 S. Ct. at 2881. The ensuing inconsiste n ci es

-11-“demonstra te the wisdom of the pres u m p tion ag ainst extraterritoriality .” Id

. “Rather than g uess

an ew i n eac h case , we apply the presumption in all cases , prese rving a st able backg round aga i n s t which Congr ess can leg islate with predic table eff ects.” Id

. (empha sis added)

. “When a statute g ives

no clea r indication of an extraterritorial application, it has none.” Id

. at 2878. Despite its emphasis, Morrison left room for some considera tion of context bey ond the statutory text alone. “[W ]e do not
say , as the concur

renc e seems to think, that the presumption ag ainst extrat er ri t o ri ali ty is a ‘cle ar

s t at em ent rule,’ if by that is meant a require ment that a statute say ‘this law applies abroa d

. ’ Assuredly

context can be c onsulted as well.” Id. at 2883 (interna l citation omitt ed). As pertinent here , § 666 criminalizes the actions of an “ag ent” of an “org anization” that rec eives more than $10,000 in fe d er al b enef its in a g iven y ear who “cor ruptly solicits or demands for the benef

it of any person, or acc epts or ag ree s to accep t , any thing of value from any person, intending to be influence d or rew arde d in connec tion with any business, transac tion, or series of transac tions of such org anization

. . . involving any thing of value of $ 5,000 or more.” 18 U.S.C. § 666(a) (1)( B)

. The plain lang uag e of § 666 contains no di rec t or ex plicit g rant of extraterritorial application. Mr. Campbell’s at t ac k on the Gover nment’s extraterritorial application of § 666
prese nts two distinct que stions: 1) can the Gover nment prosec ute a U.S. citizen for spe cific kinds of crimes ag ainst it, such as fra ud, theft and bribery , when the acts occur in a fore ign country but the criminal statu t e contains no “textual” ref ere nce to extraterritoriality and 2) can the Gover nment
prosec ute a non- U.S. citiz en for simil ar c riminal acts? The first q u es t i on must be answe red aff irmatively

. Not only does Bowman stand
square ly for this proposition but there is some limit ed evidenc e that Congr ess knew of, and

-12-approve d, Bowman ’s analy sis. To beg in, Bowman has not been overrule d or ex plicitly limit ed by

any subsequent Supreme Court decision, and it has been cited and applied by circ uit courts multipl e times in rec ent y ear s. Only the Supreme Court has authority to overr ule or vaca

te its decisions and

a l o we r court must not presume Supreme Court prec edent has been limit ed or overr uled absent expli cit indication. See, e.g., Tenet v. Doe , 544 U.S. 1, 10–11 (2005). Ultimately , if the “pre cede nt of t his Court has di rec t application in a case, y et appea rs t o rest on rea sons reje cted in some other line of decisions, the Court of Appea ls should follow the case which direc tly controls, leaving to this Court the prer og ative of overr uling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U.S. 477, 484 (1989). The Supreme Court has not limit ed or overr uled Bowman

. Despite the emphasis of Morrison that the presumption ag ainst extraterritoriality applies “in a ll cases,” 130 S. Ct . at 2881, re cent Supreme Court jurisprudenc e has de veloped with
nary a mention of Bowman and has predominate ly involved civil statutes. No doubt courts do and 3
Many courts since Morrison have continued to find that Bowman prese nts an exception to, 3 or overc omes, the presumption ag ainst extraterritoriality , or have otherwise fo u n d no tension betwee n the two case s. See e.g. , United States v. W eing arten , 632 F.3d 60, 65–67 (2d Cir. 2011) (ac knowledg ing Morrison and then noting that, per Bowman , Congr ess is presumed to have intended the extraterr itorial rea ch of criminal statutes wher e the na ture of the crime is not depe ndent on the location of the acts and limit ing the statute to U.S. territory would signific antly diminis h its eff ectivene ss); United States v. Belfast , 611 F.3d 783, 811, 813–14 (11th Cir. 2010) (citing Morrison for the proposition that the presumption ag ainst extraterritoriality may only be overc ome by clea r expression of cong ressional intent, which may be inferr ed per Bowman from the nature of the offe nse and whether deny

ing extraterritoriality would limit the scope and usefulness of the statute); see also Doe v. Exx on Mobil Corp. , No. 9-7125, 2011 U.S

. Ap p . L EXI S 13934, at *23 (D.C. Cir. J uly 8, 2011) (citing, without discussion, Bowman as support for Morrison ’s holding tha t unless contrar y cong ressional intent appea rs, leg islation shall only apply to conduct within the territoria l jurisdiction of t he Un i t ed S t ates). Other courts have noted that Bowman has not been overrule d or l imited by subsequent case law. See United States v. Leija-Sanchez , 602 F.3d 797, 799 (7th Cir. 2010) (noting , in a pre- Morrison decision, that “[w]hether or not Aramco and other post-1922 decisi o n s are in tension with B o w ma n , we must apply Bowman until the J ustices themselves overr ule it.

. . . The Supreme Court has neither overr uled Bowman nor sugg ested that the co u rt s o f appeals are free to rec onsider i t s co n cl u sion”); United States v. Finch , Crim. No. 10-333, 2010 U.S. Dist. L EXI S -13-should presume criminal laws to have only domestic application absent aff irmative evidenc e to the
contra ry , see, e.g., Delgado-G arcia , 374 F.3 d at 1344, but Morrison ’s insistence on a text ual foundation in the statutory lang uag e is not found in Bowman , which relied on the Supreme Court’s
perc eption of an implied cong ressional intent of extraterritoriality for a specific g rouping of crimes
ag ainst the U.S. g overnme nt.

S ec o nd, § 666 falls prec isely in line with the limit ed ty pe of criminal sta t u t es addre ssed in Bowman : “c ri m i nal statutes which are , as a class, not logic ally depende nt on their locality for the G overnme nt’s jurisdiction, but are enac ted beca use of the r ight of

the Gover

nment
to defe nd itself ag ainst obstruction, or fra ud wher ever perpe trated.” 260 U.S. a t 98. The Supreme Court rea dily conclude d that Congr es s h ad the authority to enac t § 666 under the Nec essar y and Proper Clause of the Constit ution, Art. I , § 8, cl. 18, “to see to it that taxpay er dollars

. . . are in fac t spent for the g ener al welfa re, and not frittere d awa

y in g raf t or on projec ts undermined when funds

ar e s i p h o ned off.” Sabri v. United States , 541 U.S. 600, 605 (2004). The statute’s “desig n was g ener ally to ‘protec t the integ rity

of the va st sums of m oney distributed throug h Fe dera l prog rams from thef t, fraud, a nd undue influenc e by

bribery .’” Id

. at 606 (quoting S. R E P
. N O
. 98-225, at 370 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3511). “Money is fung ible, bribed officia ls are

104496, at *12 (D. Haw. Sept. 30, 2 0 1 0 ) (“ Morrison neither expli citly nor implicitl y overr ules Bowman , which counsels courts to examine statutes with an ey e toward whether Congr ess intended to protect the G overnme nt from cr imes where ver pe rpetrated.”)

. To be sure, a rec ent decision of this Court, United States v. Philip Morris USA, Inc. , reiter ated Morrison ’s command t h at t he presumption ag ainst extraterritoriality be applied to all statutes. Civ. No. 99-2496, 2011 U.S. Dist. L EXI S 32 0 5 3 , at * 2 3 (D.D.C. Mar. 28, 2011). The Court nonetheless noted that as “the Def endants’ cr i m i nal enterprise does not implicate ‘the rig ht of the g overnme nt to defe nd itself,’ Bowman poses no obstacle to the proper application of Morrison here .” Id . at *24 n.6 (quoting Bowman , 260 U.S. at 98). -14-untrustworthy stewar ds of fede ral fu n d s , and corr upt contra ctors do not deliver dollar-f or-dollar value.” Id

. “Section 666(a) (2) is authority to bring fede ral power to bear direc tly on individuals who

conver t public spending into unear ned private g ain.” Id

. at 608. Thus, the purpose of § 666 para llels that of the statute considere d by the Supreme Court in Bowman and falls square ly within Bowman ’s holding. Simi larly , other co u rt s confr onted with statutes criminalizing fra ud or corr

uption
ag ainst the United States have invoked Bowman to find the presumption ag ainst extraterritoriality inappropria te. I n a matter involving the prosec ution of U.S. citizens for theft of g overnme nt proper ty

overse as under 18 U.S.C. § 641, the Ninth Circuit found the extraterritorial app l i ca t i o n o f § 641
appropr iate. Acknowle dg ing that the statute did not “express the scope of its application,” the Circuit found it nonetheless “inconc eivable that Congr ess, in enac ting Section 641, would proscr ibe only the theft of g overnme nt proper ty located within the territoria l boundarie s of the nation.” United States v. Cotten , 471 F.2d 744, 750 (9th C ir. 1973). The Circuit applied Bowman ’s rationale to § 641, rec og nizi ng that the “law cer tainly repr esents an e x erc ise by the Government of i ts rig ht to defe nd itself from obstructions and fra uds.” Id

. Thus, the Ninth Circuit “conc lude[d] t h at the

enac tment is a member of that class of pro s cr i p t ions which is not logic ally depende nt upon the locality of violation for jurisdiction,” and which must have extraterrit o ri al eff ect. Id .; see also United S t a t es v. Aye

sh , 762 F. Supp. 2d 832, 839–40 (E.D. Va. 2011) (finding “the exercise of

ex t ra t er ri torial jurisdiction appropr iate” for 18 U.S.C. §§ 641 and 208(a) – statutes criminalizin g

conver sion and theft of federa l financ ial assets and conflicts of i n t erest in fede ral contracting – as “s t at utes targ eting crimes primarily involving gover nment personne l or assets beca use, consist ent with Bowman , the nature of the offe nses targ eted makes the presumption ag ains t ex t ra t erritorial

-15-jurisdiction inappropria te”) ; United States v. Finch , Crim. No. 10-333, 2010 U.S. Dist

. L EXI S

104496, at *10–12 (D. Haw. Sept. 30, 2010) (invoking Bowman to find 18 U.S.C. § 201, prohibiting bribery or fra

ud committed ag ainst the United States or its office rs, rea ched extraterr it o r ia l c o n d u ct). 4 Aside from “the nece ssary implication of the statute,” the Ninth Circuit in Cotten also found persua sive evidenc e that the criminal venue provisions of 18 U.S.C. § 3238 wer e amende d to establish specia l venue i n U. S

. district courts for “all offe nses beg un or committed upon the high
seas, or elsewhe re out of the jurisdiction of any particula r Stat e o r d i s t ri ct ,” 18 U.S.C. § 3238, “bec ause cer

tain criminal activity ag ainst the Gover nment and pro s ec utable by the Gover nment, including violations of Section 641, could be committed abroa d, but prosecution avoide d beca use of defe cts in the venue provision.” Cotten , 471 F.2d at 750–51. That the criminal ven u e statute 5

The Supreme Court noted that 18 U.S.C. § 201, the fede ral bribery law , an d 18 U.S.C. 4 § 641, the federa l theft st atute, had f ailed to safe g uard a dequate ly the fe dera l purse fr om gr aft a nd bribery , and that in response , Congr ess enac ted § 666 “ther eby filling the reg ulatory g aps.” See Sabri , 541 U.S. at 607. I t w as “Cong ress’s decision to e nact § 666 only afte r other le g islation had failed to prote ct fe dera l interests.” Id .; see also Salinas v. United States , 522 U.S. 52, 58 (1997). The Ninth Circuit cited 1963 U.S.C.C.A.N. 660 et seq. , part of the leg islative history of 18 5 U.S

. C

. § 6 6 0

. C o tten , 471 F.2d at 751 n.21. That refer ence contains S enate Report No. 88-146, favor ably repor

ting H.R. 2842 to amend the venue statute at 18 U.S.C. § 3238. See S. R E P
. N O
. 88- 146, at 1 (1963), reprinted in 1963 U.S.C.C.A.N. 660, 660; see also H.R. 4842, 111th Cong. (2009). The Senate Commi ttee on the J udiciary noted that the amen d m en t wo u l d cure two defe cts which hamper ed prosec ut i o n of “F eder al crimes committed outside the United States,” which “have incre ased proportionately ” “with the sprea d of U.S. inter ests overse as.” S. R E P
. N O
. 88-146, at 1. The amendment would permit indictment and trial of an offe nder or joint offe nders i n t h e district wher e any of them is arr ested or first broug ht and would preve nt the running of t h e s t at u t e of limit ations when a

n offe nder is bey ond the bounds of the United States. “Such crimes c ommitt ed abroa d may include trea son, fra ud ag ainst the Gover

nment, theft or embezzlement of Gover nment proper ty , bribery , etc., as well as conspirac y to commit such offe nses.” Id. The Senate Commi ttee specific ally commented that it wa s “satisfied that the enac tment of this leg islation will sustain a nd implement a decision of the Supreme Court of the United States in United States v. Bowman ,” which “held that citizens of the United States, wh i le outside the United States, are subject to penal laws passed by the United States to protec t itself and its property .” Id . at 2. -16-§ 3238 was amende d to aid the prosec utions fore seen by Bowman , wi t h t h e Senate J udiciary

Commi ttee citing the opera ble lang uag e from Bowman , supports this conclusion. See Bowman , 260 U.S. at 102 (re ly ing, in pa rt, on the venue provision). The answer to the first question pre s ented by Mr. C ampbell’s mot ion is, there fore , that the United States can prosec ute U.S

. citizens who commi t limi ted kinds of cr imes ag ainst the
g overnme nt, includ i n g v i o l ati ons of § 666, even when those crimes are committed outside the nation’s boundar ies.

Whether such a prosec ution c an proce ed ag ainst a non-U.S. citizen prese nts a more

co m p l ex question. Mr. Campbell is an Australian citizen who was associate d with the I OM i n Afg hanistan, awa

rding contra cts to Afg hani companies. He was appre hended in I ndia. None of the events unde rly ing his I ndictment occur red in the U nited States or U.S

. territory and he a rg ues that there is no nexus betwee n his alleg ed criminal activities and the United States, such as in Bowman wher e the defe ndants wer e U.S. citizens and arr ested in New York. See Def .’s Reply [Dkt. # 23] at 3. The prec ise arg ument does not serve b ec ause the prese nce of the Bowman defe ndants in New York had nothing to do with their crime, althoug h their U.S. citizenship was specia lly noted by the Court and, since the n, by

the Senate Committee on the Judiciary

. T o b e sure, Bowman addre ssed t he prosecution of t hree defe ndants who were U.S. citizens, but not ed that a fourth, “a subject of Gre at Br itain,” had not be en appre hended. 260 U .S.
at 102. The Court commented that “it will be time enoug h to consider what, if any , jurisdiction the District Court below has to punish him when he is broug h t t o t ri al

. ” Id

. at 102–03. There is no

rec ord that the four

th defe ndant was e ver a

pprehe nded or trie d. The D.C. Ci rc u i t , howeve r, has alre ady instructed that “the citizenship of the

-17-defe ndants[] is irrele vant” beca use “ Bowman ’s l o gi c did not depend on th[ e] fac t” that only U.S. citizen defe ndants wer e befor e the Court and that the ruling “wa s much more pointed than th at.” Delgado-G arcia , 374 F.3d at 1345–46; s ee also Aye sh , 762 F. Supp. 2d at 840 (finding Bowman applies equally to non-U.S. citizens). The D.C. Circuit found its “more pointed” logic in the Court’s ref ere nce to Congr ess’s extension of the fra ud statute, “ther etofore limit ed to g overnme nt depar tments,” to c orpora

tions in which the U.S. w as a share holder, clea rly intending to protec t the Emerg ency Flee t Corporation which was expected to, and did, eng ag e in internatio n al b u s i ness. Delgado-G arcia , 374 F.3d at 1346. Be cause many persons who would defr aud the Emerg ency Flee t Corporation would clea

rly do so overse as, which is why the statute was g iven extraterritorial eff ect,
t h e C i rc u i t conclude d that a lack of U.S. citizenship does not lessen Bowman ’s forc e. Id

. Mr. Campbell’s alleg ed bribery was in connec tion with the pay ments of USAI D monies, a fede ral ag ency which is expected to eng ag e in, and does eng ag e in, a m o s t extensive international aid prog ram. Wit h such a simil ar basis, this Court finds it is bound by Delgado-G arcia to conclude t hat Mr. Campbell’s status as a non-citizen of the United States does not bar his prosec ution. I t answe rs the second que stion posed above in the a ffirma tive, based on the se par ticular fa cts and pre cede nts. B. Due P roce ss Mr. Campbell next arg ues that even if § 666 applies extraterritorially , his prosec ution under § 666 violates his rig hts to due proce ss under the Fifth Amendment to the U.S. Constit ution, wh i ch p ro v i d es that “[no] person shall be

. . . deprive d of life, liberty , or proper ty , without du e proce ss of law.” U.S. C O N S T
. amend. X. Whether the test for due proc ess in such a c ircumstance require s a “suff

icient nexus” to the United States, commonly understood as rea l eff ects or conseque nces acc ruing in this country , or prosec ution that is neither arbitra ry or capr icious has split

-18-the circ uits. One line of case s rea sons that “[i] n order to apply extraterritorially a fede ral criminal

sta tute to a defe ndant consistently with due proce ss, there must be a sufficie nt nexus betwee n the defe ndant and the United States so that such application would not be arbitra ry or fu ndamentally unfair.” United St ates v. Davis , 905 F.2d 245, 248–49 (9th C i r. 1 9 9 0) (internal citation omitted);

see also United States v. Y ousef , 327 F.3d 56, 111 (2d Ci r. 2 0 0 3 ); United States v. MohammadOmar , 323 Fe d. Appx. 259, 261 (4th Cir. 2009) (unpublished). These courts look for rea l eff ects or conseque nces a ccr

uing in the U nited States befor e they find such nex us. “The nexus require ment

serve s the same purpose as the ‘minimum contac ts’ test in persona l jurisdiction. I t ensure s that a United States court will asser t jurisdiction over a defe ndant who ‘should rea sonably anticipate being haled into cour

t’ in this country .” United States v. Kl imavicius-Viloria , 144 F.3d 1249, 1257 (9th Cir. 1998) (quoting W

orld-W ide Volkswagen Corp. v. W oodson , 444 U.S. 286, 297 (1980)) ; see also Delgado-G arcia , 374 F.3d at 1341 (explaining, without deciding , that even if due proce ss require s a sufficient nexus, t he indictment in that case “cle arly alleg ed that appellants int ended to smugg le aliens into the United States, there by causing eff ects there ” so that “ther e was no arg uable facial constitutional infirmit y

in the indictment”).
I n contra st, sever al circuits require only that extraterritorial prosec ution be neither arbitra ry nor fu ndamentally unfair, and are not conce rned with whether a sufficie nt nexus exis ts. See, e.g., United State s v. Mart inez-Hidalgo , 993 F.2d 1052, 1056 (3rd Cir. 1993) (re jecting sufficie nt nexus test and noting there was “nothing fundame ntally unfair” about t h e d ef en dant’s
prosec ution); United States v. Cardales , 168 F.3d 548, 553 (1st Cir. 1999) (“To satisfy due proce ss,

our application of the [criminal statute] must not be arbitra ry or fundame ntal l y u n fa i r. ”); United

-19-States v. Suerte , 291 F.3d 366, 375-77 (5th Cir. 2002) (re jecting sufficie nt ne x us require ment). I n many circ umstances, to be sure, it may be that “[t] his differ ence is less rea l t h an appar ent; the exis tence of a nexus is what makes the p ro s ec u t i o n neither arbitra ry nor fundame ntally unfair.” United States v. Shahani-J ahromi , 286 F. Supp. 2d 723, 728 n.9 (E.D. V a. 2003). The I ndictment alleg es that M r . Ca mp b e ll w a s eng ag ed with I OM to deter mine CHEF projec t awa

rds of USAI D m onies to rebuild Afgha nistan; that he attempted to b ribe a rec ipient of such awa rds, AB C, for steering contra cts, paid for by the United States, to it; and that he wanted the
money for his pe rsonal enric hment. Mr. Campbell is a lleg ed to ha ve demande d and rec eived U.S.

cu rr en cy in pay

ment for past awa

rds of USAI D funds to AB C and in further ance of future su ch

awa rds, if USAI D wer e to provide additional monies. Given the alleg ations, M r. C ampbell understood that his ability to steer future awa rds depende d on g rea ter United States financ ing. These fac ts, presumed at the moment to be true, provide a sufficie nt nexus to the United States so that Mr. Campbell’s prosec ution here would be neither fundame ntally unfair nor arbitra ry . I t was the promise of lucra tive USAI D-funde d contra cts that Mr. Campbell used to obtain a bribe from AB C, and it was
t his U.S.-financ ed benef

it to I OM that Mr. Campbell used for his own persona l enric hment

. T h e I ndictment further alleg es that Mr. Campbell fra nkly spoke of his ri s k s o f p rosec ution and incar cer ation, and that he clea rly understood the link betwee n the contra cts and United S tates financ ing. Mr. Campbell rea sonably should have anticipated being haled into a court in the United States. Whether a “suff icient nex us” or “ar

bitrary or fundam en t al ly unfair” test is used on these fac ts, Mr. Campbell’s prosec ution meets the require ments of the Due Process Clause. His actions direc tly implicated Americ an interests in prese rving the integ rity of its vast sums of donated

-20-monies to be fre e from corr uption, br ibery and fra

ud. See Yousef

, 327 F.3d a t 112 (finding no due
proce ss violation beca

use “it cannot be arg ued seriously th at t h e d ef endants’ conduct was so unrela ted to Americ an interests as to re n d er t h eir prosec ution in the United States arbitra ry or fundame ntally unfair” ); see also U nited States v. Brehm , Crim. No. 11-11, 2011 U.S. D ist. L EXI S 33903, at *16–17 (E.D. V a. Mar . 30, 2011) (f inding no due proce ss violation bec ause defe ndant’s conduct direc tly impacted United States’s interests in Afg hanistan). Not only might Mr. Campbell’s actions hold the United States up to opprobrium in Afg hanistan, ever y instance of such connivanc e robs USAI D money from its intended purpose, hinders the United States’s substantial eff orts in Afg hanistan, and also robs USAI D of support for i t s ef forts from the U.S. taxpay er. To make up funds so mis-di rec ted, Congr ess must appropr iate additional funds. The impact on the purse, purpose a nd reputa tion of the United States g overnme nt is clear. The Court ca

n find no violation of Mr. Campbell’s due pr ocess r ights. C. International Law Mr. Campbell arg ues that his prosec ution vi o l ates customary international law. 6 Customary international law proff ers base s for the exercise of leg islative jurisdiction, which is transg resse d when jurisdiction is asser ted bey ond such bases or in brea ch of a specific leg al limit ation. “[I ]nt erna t i o n al l aw itself imposes limit s on the extraterritorial jurisdiction that a domestic court m ay ex er cise. I t g ener ally rec og nizes five theories of jurisdiction, the objective

Wherea s the presumption ag ainst “extraterr itoriality ” speaks to the principle that Congr ess 6 g ener ally does not intend U.S. laws to apply within the territoria l jurisdiction of another nation, the prese nt arg ument, in eff

ect, i n v o k es the presumption ag ainst “extrajurisdictionality ,” that is, “a presumption that fede ral law does not extend bey o n d the jurisdictional limit s set by international law.” J ohn H. Knox , A Presumption Against Extrajurisdictionali ty, 104 A M
. J

. I N T ’ L L

. 351, 352 (2010). -21-territoria l, national, passive, protec tive and universal.” Tel-Oren v. Libyan Arab Republic , 726 F.2d

774, 781 n.7 (D.C. Cir. 1984). These five g ener al principles a re: Territori al , wher ein jurisdiction is based on the place wher e the offe nse is committed; National , wher ein jurisdiction is based o n t h e nationality of the offe nder; Protective , wher ein jurisdiction is based on whether the national interest is injured; Universal , wher ein jurisdiction is confe rre d in any forum that obtains phy sical custody of the perpe trator of cer tain off en s es considere d particula rly heinous and ha

rmful to humanity ; and Passive personal , wher ein jurisdiction is based on the nationality of the victim. United States v. Y

unis , 681 F. Supp. 896, 899–900 (D.D .C. 1988). An ac t of Congr ess should not be construed in a manner that violates the laws of nations if a non-violative interpre tation is possible. Hartford Fire Ins. Co. v. Calif ornia , 509 U.S. 764, 815 (1993) (“Thoug h it clea rly has constitutional authority to d o s o, Congr ess is g ener ally presumed not to have exceede d those customary international-la

w limits on jurisdiction to prescribe .”). Her e, the protec tive principal – specific ally articula ted i n Bowman – supports the 7
prosec ution of Mr. Campbell. “The protec tive principle permits a nation to asser t jurisdiction over

a person whose conduct outside the nation’s t er ri tory threa tens the nation’s secur ity or could potentially interfe re with the opera tion of its g overnmental functions.” United States v. RomeroGalue , 757 F.2d 1147, 1154 (11th Cir. 1985); see also United St ates v. Alomia-Riascos , 825 F.2d

Bowman , 260 U.S. at 102 (appr ovin g p rosec ution for overse as criminal conduct under 7 “such la ws as [the United States] m ight pa ss to protect itself and its prope rty ”). -22-769, 771 (4 t h Cir. 1987) (“The protec tive principle of international law permits a nation to asser t subject mat t er criminal jurisdiction over a person whose conduct outside the nation’s territory threa tens the national interest.”)

. “The protec tive principle does not require tha t there be proof of

an actua l or intended eff ect inside the United States. The conduct may be forbidden i f i t has a potential l y adver se eff

ect and is g ener ally rec og nized as a crime by nations that have rea sonably develope d leg al sy stems.” United States v. Gonzalez , 776 F.2d 931, 939 ( 11th Cir. 1985).

Br iber y i n co nnection with contra cts backe d by U.S. financ ing is illega l prec isely beca use it implicates and adver sely aff ects the interests and purse of the United States. The United States has the rig ht “to defe nd itself ag ainst obstruction, or fra ud wher ever perpe trated.” Bowman , 260 U.S. at 98; see also Aye sh , 762 F. Supp. 2d at 841 (finding protec tive principle justified
prosec u t i o n b ec ause statutes “which targ et gover nment theft and corr

uption, cer

tainly advanc e an important national interest that cannot be understate d”). The protect i v e principle amply supports
prosec ution of Mr. Campbell in this C ourt.

D. Defendant as Agent Finally , Mr. Camp b ell challeng es the acc urac y of the fac tual alleg ations of the
I ndictment, most pa

rticularly its refe renc e to him as an “ ag ent” of I OM. He asser ts tha t he was an employ ee of the Christian Thoma s Group Global, a private business entity from the Br itish Virg in
I slands, and not employ ed by I OM at all. Thus, he arg ues, he c annot be pr osecute d as an a g ent of
I OM or, in the statutory

terms, an a g ent of a

n org anization that rece ives fede ral funds. This arg ument cannot be resolved on the fac e of the I ndictment and, even if acc urate in fac t, is not nece ssarily complete or acc urate at law. First, the Court must assume the fac ts alleg ed in the I ndictm en t ar e true at this stag e of the proce eding s and there is nothing on the fac e of the

-23-I ndictment to support Mr. Campbell’s arg ument. An indictment need only contain “a plain, concise ,

and definite written statement of the essential fac ts constituting the offe nse char g ed.” Fe d. R. Crim. P. 7(c)

. An indictme n t does not need to put forth all evidenc e the Gover nment plans to prese nt. United States v. Ring , 628 F. Supp. 2d 195, 204 (D.D.C. 2009). I nstead, “ at the pre trial stag e, the indictment ordinarily should be tested solely by its sufficie ncy to char g e an offe nse, reg ardle ss of the streng th or weakness of the g overnme nt’s case .” United States v. Risk , 843 F.2d 1059, 1061 (7th Cir. 1988) (citing Un i t ed States v. Sampson , 371 U.S. 75, 78–79 (1962))

. I t would be, at best, an “unusual circ umstance” for a “district court to re s o l v e the sufficie ncy of the evidenc e befor e trial beca use the g overnme nt is usually entitled to prese nt its evidenc e at trial and have i t s s u ff i ci ency tested by a motion for acquittal under Rule 29 of the Fe dera l Rules of Criminal Procedur e.” United States v. Y

akou , 428 F.3d 241, 247 (D.C. Cir. 2005). The Court finds no such unusual circ umstance here

. I n addition, as a matter of law, Mr. Campbell might be found to have occupie d a role in which he exerted such control or power with reg ard to I OM and CHEF contra cts that he constituted an I OM “ag ent” for curr ent purposes even if he wer e not technica lly an I OM employ ee. Section 666(d)( 1) define s “ag ent” broadly , as “a person authorized to act on behalf of another person

or a g overnme nt and, in the case of an org anization or g overnme nt, includes a serva nt or employ ee, and a partne r, direc tor, office r, manag er, and repr esenta tive.” 18 U.S.C. § 666(d)( 1); United States

v. Sotomayor-Vazque

z , 249 F.3d 1, 8 (1st Cir. 2001) (finding that “the inclusion of ‘employ ee’ in the statutory langu age as a separ ate qualifica tion sug g ests that the definition of ag ent includes ‘direc tors,’ ‘mana g ers,’ and ‘re prese ntatives’ who are not technica lly employ ees” ). Certainly , there is no way curr ently to rea ch any such conclusion, but the possibili ty alone that the Gover nment could

-24-demonstrate that Mr. Campbell acte d as an ag ent of I OM dooms his motion to dismiss based on his

asser ted non-e mploy

ment with I OM bec ause the statute is not lim ited to employ ees. I nasmuch as this portion of the motion to dismiss rests on contested fac ts, it cannot be dete rmined at this time and will be denied w ithout prejudice. IV. CONCLUSION The Court conclude s that Def endant’ s alleg ed violation of 18 U.S.C. § 666(a) (1)( B) in a fore ign country may be prosec uted in this country without violating the pri n ciple ag ainst extraterritorial application of U.S. la w, Def endant’ s due proce ss rig hts, or customary international l aw. The motion to dismiss the I ndictment based on these leg al arg uments will be d en i ed

. T h e motion to dismi s s based on arg uments that Mr. Campbell was not an “ag ent” of an org anization

rec eiving USAI D funds will be denied without pre j u d i ce as p rema ture at this stag e of the
proce eding s. A memorializing Or der a ccompa nies this Memorandum Opinion.

Date: J uly

27, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

-25-