Extraterritorial Application of American Criminal Law
Released: 2016-10-31T00:00:00

Introduction

Crime is ordinarily proscribed, tried, and punished according to the laws of the place where it occurs. 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. A surprising number of federal criminal statutes have extraterritorial application, but prosecutions have been relatively few. This may be because when extraterritorial criminal jurisdiction does exist, practical and legal complications, and sometimes diplomatic considerations, may counsel against its exercise.

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.

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"; the power "[t]o regulate commerce with foreign Nations"; 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."

The power to define and punish felonies on the high seas and 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. 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.

Congress's commerce powers are three; one, that vests it with power "[t]o regulate Commerce with foreign Nations," 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 exceptionally sweeping terms. The Foreign Commerce Clause may be even more far-reaching, although there is certainly support for a contrary view.

Courts in some of the more recent 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. 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 some other commercial factor. 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. 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.

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. 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."

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. It has, for instance, regularly called upon the authority deposited with the President and Congress in the fields of foreign affairs and military activities, powers which the courts have described in particularly wide-ranging terms.

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. Other limitations appear elsewhere in the Constitution, most notably in the due process clauses of the Fifth Amendment. 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.

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.

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. Even the value of this scant illumination is dimmed by the realization that the circumstances most likely to warrant such due process analyses are the very ones in which the least process is due. Although American courts that try aliens for overseas violations of American law must operate within the confines of due process, the Supreme Court has observed that the Constitution's due process commands do not protect aliens who lack any "significant voluntary connection[s] with the United States." Moreover, the Court's more recent decisions often begin with the assumption that the issues of extraterritorial jurisdiction come without constitutional implications.

Nevertheless, due process issues have surfaced in a handful, but growing number, of lower court decisions relating to extraterritoriality. A few courts describe a due process requirement that demands some nexus between the United States and the circumstances of the offense. Occasionally, they look to international law principles to provide a useful measure to determine whether the nexus requirement has been met. On other occasions, they consider the principles at work in the minimum contacts test for personal jurisdiction. 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, and some courts have simply rejected it.

A related due process challenge is based on notice. It is akin to the concerns over secret laws and vague statutes, the exception to the maxim that ignorance of the law is no defense. Here, indicia of knowledge, of reason to know, of an obligation to know, or of 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; seafarers to know the law of the sea and consequently the laws of the nation under which 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. On the other hand, the application of 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.

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.

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. 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. Moreover, "when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms."

At one time, the second rule of construction stated that the nature and purpose of a statute may provide an indication of whether Congress intended a statute to apply beyond the confines of the United States. Although hints of it can be found earlier, the rule was first clearly announced in United States v. Bowman .

The Supreme Court's emphatic endorsement of the domestic presumption in a civil context in Morrison cast some doubt on Bowman 's continued vitality. Early indications were that the courts and commentators were unwilling to go that far. The Court in RJR Nabisco , another civil case, however, may have changed that. In RJR Nabisco , the Court seemed to take direct aim at Bowman without naming it. There may be some real question of the extent to which the Court still considers Bowman good law.

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. 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 Americans. 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.

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.

Yet 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?

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.

The American Law Institute's Third Restatement of the Foreign Relations Law of the United States contains perhaps the most comprehensive, contemporary statement of international law in the area. It indicates that reasonableness defines the latitude that international law affords a country to enact, try, and punish violations of its law extraterritorially; its assessment of reasonableness mirrors a balancing of the interests represented in the Harvard study principles.

While the Restatement's views carry considerable weight with both Congress and the courts, the courts have traditionally ascertained the extent to which international law would recognize extraterritorial application of a particular law by citing the Harvard study principles, read expansively.

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. Congress often indicates within the text of a statute when it intends a provision to apply within its territorial waters and upon its vessels. Although rarely mentioned in the body of a statute, the courts have long and regularly acknowledged the "impact" basis for a claim of extraterritorial application. This is particularly so, when the facts in a case suggest other principles of international law, in addition to the territorial principle.

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." As construed by the courts, however, it is understood to permit the application abroad of statutes which protect the federal government and its functions. And so, it covers the overseas murder or attempted murder of federal officers or those thought to be federal officers; acts of terrorism calculated to influence American foreign policy; conduct that Congress has characterized as a threat to U.S. national security; false statements or forgery designed to frustrate the administration of U.S. immigration law; entering the United States as a stowaway; or overseas bribery in connection with the award of federal government contracts.

The nationality principle rests the exercise of extraterritorial criminal jurisdiction on the citizenship of accused. It is the principle mirrored in the Supreme Court's statements in Blackme r v. United States , following the contempt conviction of an American living in Paris who ignored a federal court subpoena. 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.

The passive personality principle recognizes extraterritorial criminal jurisdiction based on the nationality of the victim of the offense. It, too, has been asserted most often in the presence of facts suggesting other principles.

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

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. 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." The concept of special maritime and territorial jurisdiction, if not the phrase, dates from the First Congress, 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); customs matters (customs waters of the U.S.); U.S. spacecraft in flight; evasive, stateless submersible vessels on the high seas; overseas federal facilities and overseas residences of federal employees; members of U.S. Armed Forces overseas and those accompanying them; 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 category of federal criminal statutes with explicit extraterritorial application. The range of these treaty-based federal crimes differs. Some have extraterritorial application only when the offender is an American. 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. Some enjoy extraterritorial application under any of a number of these and other explicit jurisdictional circumstances.

Members of another category of explicit extraterritorial federal criminal statutes either cryptically declare that their provisions are to apply overseas 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.

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 nothing more than the consent of the nation with primary criminal jurisdiction. MDLEA outlaws the manufacture, distribution, or possession with intent to manufacture or distribute controlled substances aboard vessels within the jurisdiction of the United States. 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. The definition also encompasses "vessels without nationality" sometimes referred to as "stateless" vessels, that is, vessels for which no national registry is effectively claimed.

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. 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. They are divided over whether the prosecution must show some nexus between the United States and the offense and over the application of the subsection of the act that assigns jurisdictional determinations to the court rather than to the jury.

Implied

At least until Mor r ison and RJR Nabisco , the lower courts understood Bowma n and Ford 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 includes 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. They held, for instance, that the statute outlawing the assassination of Members of Congress may be applied against an American for a murder committed in a foreign country, and that statutes prohibiting the murder or kidnaping of federal law enforcement officials apply in other countries even if the offenders are not Americans, and even if the offenders simply incorrectly believed the victims were federal law enforcement officers. 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; (2) false statements made by Americans overseas; (3) the theft of federal property abroad; (4) counterfeiting, forging, or otherwise misusing federal documents or checks overseas by either Americans or aliens; and (5) murder of a foreign national in another nation designed to facilitate the operation of a criminal enterprise in the United States. RJR Nabisco casts serious doubt on the continued validity of these assessments, at least the absence of some textual, structural, or contextual indication that Congress intended the statutes at issue to apply abroad.

This is equally true to the implications of the earlier jurisprudence. A logical extension of earlier law would have been to conclude that statutes enacted to prevent and punish the theft of federal property apply worldwide. And there seemed no obvious reason why statutes protecting the United States from intentional deprivation of its property by destruction should be treated differently from those where the loss is attributable to theft.

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. 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.

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."

State Law

State criminal laws are less likely to apply overseas than federal laws. 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 for protecting American interests and fulfilling American responsibilities overseas in the federal government.

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. 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. 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."

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. 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. Another common claim is where an individual outside the state attempts or conspires to commit a crime within the state; or one within the state attempts or conspires to commit a crime beyond its boundaries. 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; where property stolen elsewhere is brought into the state; or where conduct outside the state constitutes the failure to comply with a legal duty imposed by state law.

Investigation and Prosecution

Although a substantial number of federal criminal statutes have undisputed extraterritorial scope and a great many more until recently thought to have apparent extraterritorial range, prosecutions have been relatively few. Investigators and prosecutors face legal, practical, and often diplomatic obstacles that can be daunting. Some of these are depicted in the description that follows of some of procedural aspects of the American investigation and prosecution of a crime committed abroad.

With respect to diplomatic concerns, the Restatement observes:

It is universally recognized, as a corollary of state sovereignty, that officials of one state may not exercise their functions in the territory of another state without the latter's consent. Thus, while a state may take certain measures of nonjudicial enforcement against a person in another state, ... its law enforcement officers cannot arrest him in another state, and can engage in criminal investigation in that state only with that state's consent.

Failure to comply can result in strong diplomatic protests, liability for reparations, and other remedial repercussions, to say nothing of the possible criminal prosecution of offending foreign investigators. Consequently, investigations within another country of extraterritorial federal crimes without the consent or at least acquiescence of the host country are extremely rare.

Mutual Legal Assistance Treaties and Agreements

Congress has endorsed diplomatic efforts to increase multinational cooperative law enforcement activities. The United States has over 70 mutual legal assistance treaties in force. Their benefits are typically available to state and federal law enforcement investigators though the Department of Justice's Office of International Affairs. Initially negotiated to overcome impediments posed by foreign bank secrecy laws, the treaties generally offer more than the collection and delivery of documents. They ordinarily provide similar clauses, with some variations, for locating and identifying persons and items; service of process; executing search warrants; taking witness depositions; persuading foreign nationals to come to the United States voluntarily to present evidence here; and forfeiture-related seizures.

Letters Rogatory

Witness depositions may be taken in a foreign country using letters rogatory. Letters rogatory involve the formal request from the courts of one country to those of another asking that a witness's statement be taken. The procedure is governed by statute and rule. It is often a resource of last resort. The process, through diplomatic channels, is time consuming, cumbersome, and lies within the discretion of the foreign court to which it is addressed.

Cooperative Efforts

American law enforcement officials have historically used other, often less formal, cooperative methods overseas to investigate and prosecute extraterritorial offenses. Over the last few decades the United States has taken steps to facilitate cooperative efforts. In addition to the more traditional presence of members of the Armed Forces and State Department personnel and contractors, federal civilian law enforcement agencies have assigned an increasing number of personnel overseas. For example, the Justice Department's Criminal Division has resident legal advisors in 45 countries abroad; and the Federal Bureau of Investigation (FBI) now operates legal attache offices in 78 foreign cities; the Drug Enforcement Administration (DEA) has offices in 92 cities overseas; the U.S. Immigration and Customs Enforcement agency operates out of 75 locations; and the Secret Service has 20 such offices.

A few regulatory agencies with law enforcement responsibilities have working arrangements with their foreign counterparts. The Securities and Exchange Commission, for instance, with 105 similar foreign regulatory entities, is a signatory of the International Organization of Securities Commissions' multilateral memorandum of understanding (IOSCO MMOU) for enforcement cooperation and the exchange of information.

Congress has enacted several measures to assign foreign law enforcement efforts in this country in anticipation of reciprocal treatment. For instance, the Foreign Evidence Request Efficiency Act of 2009 authorizes Justice Department attorneys to petition federal judges for any of a series of orders to facilitate investigations in this country by foreign law enforcement authorities. The authorization extends to the issuance of:

search warrants; court orders for access to stored electronic communications and to communications records; pen register or trap and trace orders; and subpoena authority, both testimonial and for the production of documents and other material.

Search and Seizure Abroad

Search and seizures conducted abroad occasionally have Fourth Amendment implications. The Supreme Court's United States v. Verdugo-Urquidez decision makes it clear that the Fourth Amendment does not apply to the search of the property of foreign nationals outside the United States, unless the property owner has some "previous significant voluntary connections with the United States."

The Fourth Amendment's application to U.S. citizens and foreign nationals with significant connections to the United States is less clear. Prior to Verdugo-Urquidez , neither the Fourth Amendment nor its exclusionary rule were considered applicable to overseas searches and seizures conducted by foreign law enforcement officials, except under two circumstances. The first covered foreign conduct which "shocked the conscience of the court." The second reached foreign searches or seizures in which U.S. law enforcement officials were so deeply involved as to constitute "joint ventures" or some equivalent level of participation. The cases seldom explained whether these exceptions operated under all circumstances or only when searches or seizures involved the person or property of U.S. nationals. In the days when MLATs were scarce, however, the courts rarely, if ever, encountered circumstances sufficient to activate either exception.

Since Verdugo-Urquidez , the courts have held, as a general rule, that the Fourth Amendment is inapplicable to searches or seizures of U.S. citizens by foreign officials in other countries, but have continued to acknowledge the "joint venture" and "shocked conscience" rarely found exceptions to the general rule.

Prior to Verdugo-Urquidez, there seems to have been general agreement among the lower federal appellate courts that the Fourth Amendment governed the foreign search and seizure of the person or property of U.S. citizens by U.S law enforcement officials. Since then, the question more often has been not whether the Fourth Amendment governs, but what it demands.

With some exceptions, a warrant issued by the neutral magistrate upon a finding of probable cause is the hallmark of a reasonable Fourth Amendment search or seizure in this country. Two concurring opinions in Verdugo-Urquidez and subsequent lower court endorsements suggest that the warrant requirement does not apply to searches by U.S. officials in other countries, at least where the Federal Rules of Criminal Procedure or other authority do not authorize the issuance of a warrant.

Nevertheless, "the Fourth Amendment's reasonableness standard applies to United States officials conducting a search affecting a United States citizen in a foreign country." On the other hand, even under such circumstances, "a foreign search is reasonable if it conforms to the requirements of foreign law," and "such a search will be upheld under the good faith exception to the exclusionary rule when United States officials reasonably rely on foreign officials' representations of foreign law."

Self-Incrimination Overseas

Like the Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment self-incrimination clause and its attendant Miranda warning requirements do not apply to statements made abroad to foreign officials, subject to the same "joint venture" and "shocked conscience" exceptions. The Fifth Amendment and Miranda requirements do apply to custodial interrogations conducted abroad by American officials regardless of the nationality of the defendant. Finally, as a general rule, to be admissible at trial in this country, any confession or other incriminating statements must have been freely made.

Statute of Limitations: 18 U.S.C. §3292 and Related Matters

As a general rule, prosecution of federal crimes must begin within five years. Federal capital offenses, certain federal sex offenses, and various violent federal terrorist offenses, however, may be prosecuted at any time. Prosecution of nonviolent federal terrorism offenses must begin within eight years. Moreover, the statute of limitations is suspended or tolled during any period in which the accused is a fugitive.

Whatever the applicable statute of limitations, Section 3292 authorizes the federal courts to suspend it in order to await the arrival of evidence requested of a foreign government:

Upon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court before which a grand jury is impaneled to investigate the offense shall suspend the running of the statute of limitations for the offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.

Section 3292 suspensions may run for no more than six months if the requested foreign assistance is provided before the time the statute of limitations would otherwise have expired and for no more than three years in other instances. The suspension period begins with the filing of the request for foreign assistance and ends with final action by the foreign government upon the request. The government must show by a preponderance of the evidence that the purpose of the request is to obtain evidence located overseas. Because of the built-in time limits, however, the government need not show that it acted diligently in its attempts to gather overseas evidence. The circuits are divided over whether the section may be used to revive a statute of limitations by filing a request after the statute has run, and over whether the section can be used to extend the statute of limitations with respect to evidence that the government has already received at the time it filed the request. At least one circuit has held that the statutory reference to "the district court before which a grand jury is impaneled to investigate the offense" is intended to identify the court that may issue the suspension order and does not limit the statute to requests filed in aid of a pending grand jury investigation.

Extradition

Extradition is perhaps the oldest form of international law enforcement assistance. It is a creature of treaty by which one country surrenders a fugitive to another for prosecution or service of sentence. The United States has bilateral extradition treaties with roughly two-thirds of the nations of the world. Treaties negotiated before 1960 and still in effect reflect the view then held by the United States and other common law countries that criminal jurisdiction was territorial and consequently extradition could not be had for extraterritorial crimes. Subsequently negotiated agreements either require extradition regardless of where the offense occurs, permit extradition regardless of where the offense occurs, or require extradition where the extraterritorial laws of the two nations are compatible.

More recent extradition treaties address other traditional features of the nation's earlier agreements that complicate extradition, most notably the nationality exception, the political offense exception, and the practice of limiting extradition to a list of specifically designated offenses.

Federal crimes committed within other countries are more likely than not to be the work of those who live there. Yet, the "most common type of treaty provision provides that neither of the contracting parties shall be bound to deliver up its own citizens or subjects." Most treaties negotiated of late, however, contain either an article declaring that extradition may not be denied on the basis of nationality or one declaring that if extradition is denied on the basis of nationality, the case must be referred to local authorities for prosecution.

"The political offense exception is now a standard clause in almost all extradition treaties of the world." Originally designed to protect unsuccessful insurgents in flight, it is often construed to include both the purely political offense such as treason and sedition and related political offenses such as an act of violence committed during the course of, and in furtherance of, a political upheaval. The exception is somewhat at odds with contemporary desires to prevent, prosecute, and punish acts of terrorism. Consequently, treaties forged over the last several years frequently include some form of limitation on the exception, often accompanied by a discretionary right to refuse politically or otherwise discriminatorily motivated extradition requests.

Current U.S. extradition treaties signed prior to the 1980s list specific crimes to which the treaty is limited. In the nation's first extradition treaty the list was limited to murder and forgery; toward the end of the 20 th century the standard lists had grown close to more than 30 crimes. Treaties agreed to more recently opt for a generic description.

As an alternative to extradition, particularly if the suspect is not a citizen of the country of refuge, foreign authorities may be willing to expel or deport him under circumstances that allow the United States to take him into custody. In the absence of a specific treaty provision, the fact that the defendant was abducted overseas and brought to the United States for trial rather than pursuant to a request under the applicable extradition treaty does not deprive the federal court of jurisdiction to try him.

Venue

Federal crimes committed within the United States must be tried where they occur. Crimes committed outside the United States are tried where Congress has provided. Congress has enacted both general and specific venue statutes governing extraterritorial offenses. Section 3238, the general provision, permits the trial of extraterritorial crimes either (1) in the district into which the offender is "first brought" or in which he is arrested for the offense; or (2) prior to that time, by indictment or information in the district of the offender's last known residence, or if none is known, in the District of Columbia. The phrase "first brought" as used in section 3238 means "first brought while in custody." The phrase "is arrested" applies when the accused is initially taken into custody under an indictment that is subsequently dismissed. As the language of the section suggests, venue for all joint offenders is proper wherever venue for one of their number is proper. Courts are divided over whether section 3238 may be applied even though venue may have been proper without recourse to its provisions.

On occasion, Congress will enact individual provisions covering venue for offenses committed abroad. The Controlled Substances Import and Export Act and the Maritime Drug Law Enforcement Act (MDLEA) are two such examples. The Controlled Substance section outlaws overseas possession with intent to import into the United States. MDLEA outlaws possession of controlled substances on vessels subject to the jurisdiction of the United States. They contain parallel venue provisions, which permit trial in the judicial district where the accused enters the United States or in the District of Columbia.

Testimony of Witnesses Outside the United States

A federal court may subpoena a United States resident or national found abroad to appear before it or the grand jury. Federal courts ordinarily have no authority to subpoena foreign nationals located in a foreign country. Mutual legal assistance treaties and similar agreements generally contain provisions to facilitate a transfer of custody of foreign witnesses who are imprisoned in a foreign nation and in other instances to elicit assistance to encourage foreign nationals to come to this country and testify voluntarily.

Unable to secure the presence of witnesses who are foreign nationals, Rule 15 of the Federal Rules of Criminal Procedure permits federal courts to authorize depositions to be taken abroad, under "exceptional circumstances and in the interests of justice." They may admit such depositions into evidence in a criminal trial as long as the demands of the Federal Rules of Evidence and the Constitution's Confrontation Clause are also satisfied.

Originally, only a defendant might request that depositions be taken under Rule 15 of the Federal Rules of Criminal Procedure, but they have been available to prosecutors since the 1970s. The Rule offers depositions as an alternative to long-term incarceration of material witnesses. Otherwise, depositions may be ordered only under exceptional circumstances. Some courts have said that to "establish exceptional circumstances the moving party must show the witness's unavailability and the materiality of the witness's testimony." Others would add to these that "the testimony is necessary to prevent a failure of justice" or additional considerations.

As general matter, depositions are to be taken in the same manner as depositions in civil cases. Moreover, the Rule requires that the defendant be afforded an opportunity to attend depositions taken at the government's request. When a deposition is taken abroad, the courts prefer that the defendant be present, that his counsel be allowed to cross-examine the witness, that the deposition be taken under oath, that a verbatim transcript be taken, and that the deposition be captured on videotape; but they have permitted depositions to be admitted into evidence at subsequent criminal trials in this country, notwithstanding the fact that one or more of these optimal conditions are not present. In nations whose laws might not otherwise require, or even permit, depositions under conditions considered preferable under U.S. law, a treaty provision sometimes addresses the issue.

Although the government will ordinarily take depositions under the conditions that would permit them to be used as evidence at trial, "[c]ompliance with Rule 15 is a necessary but not sufficient condition for use of a deposition at trial." The question of admissibility of overseas depositions rests ultimately upon whether the Confrontation Clause requirements have been met. The right of an accused under the Confrontation Clause embodies not only the prerogative of a literal face-to-face confrontation, but also the right to cross examine and to have the witness's testimonial demeanor exposed to the jury. The early cases relied on the Supreme Court's decisions either in Ohio v. Roberts or in Maryland v. Craig . Faced with the question of whether trial witnesses might testify remotely via a two-way video conference, Craig held that the Confrontation Clause's requirement of physical face-to-face confrontation between witness and defendant at trial can be excused under limited circumstances in light of "considerations of public policy and necessities of the case." Roberts dealt with the question of whether the admission of hearsay evidence violated the Confrontation Clause, and declared that as long as the hearsay evidence came within a "firmly rooted hearsay exception" its admission into evidence in a criminal trial constituted no breach of the clause.

After Roberts and Craig , however, the Supreme Court held in Crawford v. Washington that "testimonial" hearsay could not be considered reliable and admitted into evidence without the safeguard of cross examination. Crawford forecloses subsequent reliance on Roberts ' across-the-board hearsay rule exception when faced with the question of whether a "testimonial" deposition may be admitted into evidence at trial. Crawford repudiates the suggestion that Roberts permits anything less than actual confrontation in the case of "testimonial" hearsay in the form of a deposition or any other form. The status of Craig 's video and public interest exception is less clear. At least one appellate panel has concluded that the prosecution's need for critical evidence does not alone supply the kind of public policy considerations necessary to qualify for a Craig exception; but another has held that national security interests may suffice.

Since the pre- Crawford cases required a good faith effort to assure the defendant's attendance at overseas depositions, it might be argued that Crawford requires no adjustment in the area's jurisprudence. Moreover, the Eleventh Circuit's en banc Craig analysis implied that it thought the use of overseas depositions at trial more compatible with the confrontation clause than the use of video trial testimony. Yet in a later video case, the Fourth Circuit rejected a Confrontation Clause challenge when the circumstances satisfied the dual demands for a Craig exception: (1) denial of a face-to-face confrontation made necessary by important policy considerations, and (2) assurance of reliability in the form of an "oath, cross-examination, and observation of the witness' demeanor."

The Federal Rules of Evidence govern the admissibility of evidence in federal criminal trials. A deposition taken overseas that has survived scrutiny under Rule 15 of the Federal Rules of Criminal Procedure and the Confrontation Clause is likely to be found admissible. The hearsay rule, Rule 802, which reflects the law's preference for evidence that is exposed to the adversarial process, poses the most obvious obstacle. The Rule, however, provides an explicit exception for depositions, one that has been applied to depositions taken abroad under the authority of Rule 15.

National Security Concerns

When witnesses and other evidence are located in other countries, a defendant's statutory and constitutional rights may conflict with the government's need for secrecy for diplomatic and national security reasons. Rule 16 of the Federal Rules of Criminal Procedure entitles a defendant to disclosure of any of his statements in the government's possession, but the prosecution's case may have evolved from foreign intelligence gathering. The Sixth Amendment assures a criminal defendant of "compulsory process for obtaining witnesses in his favor," but providing a witness who is also a terrorist suspect and in federal custody may have an adverse impact on the witness's value as an intelligence source. The Sixth Amendment promises a criminal defendant the right to confront the witnesses against him, even a witness who presents classified information to the jury.

Congress has provided the Classified Information Procedures Act (CIPA) as a means of accommodating the conflict of interests. The CIPA permits the court to approve prosecution prepared summaries of classified information to be disclosed to the defendant and introduced in evidence, as a substitute for the classified information. The summaries, however, must be an adequate replacement for the classified information, because ultimately the government's national security interests "cannot override the defendant's right to a fair trial."

Admissibility of Foreign Documents

There is a statutory procedure designed to ease the evidentiary admission of foreign business records in federal courts. The section covers "foreign record[s] of regularly conducted activity" in virtually any form, i.e., any "memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, maintained in a foreign country." It exempts qualified business records from the operation of the hearsay rule in federal criminal proceedings and permits their authentication upon foreign certification. Finally, it establishes a procedure under which the reliability of the documents can be challenged in conjunction with other pre-trial motions. While the prosecution's failure to provide timely notice of its intent to rely upon the section does not necessarily bar admission, its failure to supply a foreign certification of authenticity precludes admission under the section.

Early appellate decisions upheld Section 3505 in the face of Confrontation Clause challenges, as in the case of depositions drawing support from Ohio v. Roberts . As noted above, Crawford cast doubt upon the continued vitality of the all-encompassing Roberts rule (hearsay poses no confrontation problems as long as it falls within a "firmly rooted hearsay exception") when it held that only actual confrontation will suffice in the case of "testimonial" hearsay. Although it left for another day a more complete definition of testimonial hearsay, Crawford did note in passing that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial—for example business records." More than one later court panel has rejected a confrontation clause challenge to Section 3505 on the basis of this distinction.

Conclusion

The Constitution grants Congress broad powers to enact laws of extraterritorial scope and imposes few limitations on the exercise of that power. The states enjoy only residual authority, but they too may and have enacted criminal laws which apply beyond the territorial confines of the United States. Prosecutions are relatively few, however, perhaps because of the practical, legal, and diplomatic obstacles that may attend such an endeavor.

Attachments

Federal Criminal Laws Which Enjoy Express Extraterritorial Application

Special Maritime & Territorial Jurisdiction

8 U.S.C. § 1375a(d)(3) (informed consent violations by international marriage brokers)

15 U.S.C. § 1175 (manufacture or possession of gambling devices)

15 U.S.C. § 1243 (manufacture or possession of switchblade knives)

15 U.S.C. § 1245 (manufacture or possession of ballistic knives)

16 U.S.C. § 3372(a)(3) (possession of illegally taken fish or wildlife)

18 U.S.C. § 81 (arson)

18 U.S.C. § 113 (assault)

18 U.S.C. § 114 (maiming)

18 U.S.C. § 115 (violence against federal officials, former officials and members of their families)

18 U.S.C. § 117 (domestic assault by an habitual offender)

18 U.S.C. § 118 (interference with certain protective functions [State Department & diplomatic security])

18 U.S.C. § 249 (hate crimes)

18 U.S.C. § 546 (smuggling goods into a foreign country from an American vessel)

18 U.S.C. § 661 (theft)

18 U.S.C. § 662 (receipt of stolen property)

18 U.S.C. § 831 (threats, theft, or unlawful possession of nuclear material or attempting or conspiring to do so)

18 U.S.C. § 931 (purchase, ownership, or possession of body armor by violent felons)

18 U.S.C. § 1025 (false pretenses)

18 U.S.C. §§§ 1081 - 1083 (gambling ships)

18 U.S.C. § 1111 (murder)

18 U.S.C. § 1112 (manslaughter)

18 U.S.C. § 1113 (attempted murder or manslaughter)

18 U.S.C. § 1115 (misconduct or neglect by ship officers)

18 U.S.C. § 1201 (kidnaping)

18 U.S.C. § 1363 (malicious mischief)

18 U.S.C. § 1460 (sale or possession with intent to sell obscene material)

18 U.S.C. § 1466A (obscene visual representation of sexual abuse of children)

18 U.S.C. § 1587 (captain of a slave vessel with slaves aboard)

18 U.S.C. § 1591 (sex trafficking of children)

18 U.S.C. § 1656 (piratical conversion of vessel by captain, officer or crew member)

18 U.S.C. § 1658 (plundering a ship in distress)

18 U.S.C. § 1659 (attack upon a vessel with intent to plunder)

18 U.S.C. § 1654 (Americans arming or serving on privateers outside the United States to be used against the United States or Americans)

18 U.S.C. § 1801 (video voyeurism)

18 U.S.C. § 1957 (prohibited monetary transactions)

18 U.S.C. § 2111 (robbery)

18 U.S.C. § 2191 (cruelty to seamen)

18 U.S.C. § 2192 (incite to revolt or mutiny)

18 U.S.C. § 2193 (revolt or mutiny by seamen)

18 U.S.C. § 2194 (shanghaiing sailors)

18 U.S.C. § 2195 (abandonment of sailors overseas)

18 U.S.C. § 2196 (drunkenness of seamen)

18 U.S.C. § 2197 (misuse of documents associated vessels)

18 U.S.C. § 2198 (seduction of a female passenger)

18 U.S.C. § 2199 (stowaways)

18 U.S.C. § 2241 (aggravated sexual abuse)

18 U.S.C. § 2242 (sexual abuse)

18 U.S.C. § 2243 (sexual abuse of a minor or ward)

18 U.S.C. § 2244 (abusive sexual contact)

18 U.S.C. § 2252(a) (sale or possession of material involving sexual exploitation of children)

18 U.S.C. § 2252A(a) (sale or possession of child pornography)

18 U.S.C. § 2261 (interstate domestic violence)

18 U.S.C. § 2261A (stalking)

18 U.S.C. § 2262 (interstate violation of a protective order)

18 U.S.C. §§ 2271-2279 (destruction of ships)

18 U.S.C. § 2283 (transportation of explosives, biological, chemical, radioactive or nuclear materials for terrorist purposes on the high seas or aboard a U.S. vessel or in U.S. waters)

18 U.S.C. § 2284 (transportation of a terrorist on the high seas or aboard a U.S. vessel or in U.S. waters)

18 U.S.C. § 2318 (transporting counterfeit phonorecord labels, copies of computer programs or documentation, or copies of motion pictures or other audio visual works)

18 U.S.C. § 2332b (acts of terrorism transcending national boundaries)

18 U.S.C. § 2388 (war-time activities affecting armed forces)

18 U.S.C. § 2422(b) (causing a minor to engage in prostitution or other sexual acts)

18 U.S.C. § 2425 (transmission of information about a minor)

18 U.S.C. § 3261 (offenses committed by members of the United States armed forces or individuals accompanying or employed by the United States armed forces overseas)

46 U.S.C. § 70503 (maritime drug law enforcement)

46 U.S.C. § 70508 (operation of stateless submersible vessels)

48 U.S.C. § 1912 (offenses committed on United States defense sites in the Marshall Islands or Federated States of Micronesia)

48 U.S.C. § 1934 (offenses committed on United States defense sites in Palau)

Special Aircraft Jurisdiction

18 U.S.C. § 32 (destruction of aircraft)

18 U.S.C. § 831 (threats, theft, or unlawful possession of nuclear material or attempting or conspiring to do so)

18 U.S.C. § 1201 (kidnaping)

18 U.S.C. § 2318 (transporting counterfeit phonorecord labels, copies of computer programs or documentation, or copies of motion pictures or other audio visual works)

49 U.S.C. § 46502(a) (air piracy or attempted air piracy)

49 U.S.C. § 46504 (interference with flight crew or attendants within the special aircraft jurisdiction of the United States)

49 U.S.C. § 46506 (assaults, maiming, theft, receipt of stolen property, murder, manslaughter, attempted murder or manslaughter, robbery, or sexual abuse)

Treaty-Related

18 U.S.C. § 32(b)

Offenses :

- violence aboard a foreign civil aircraft (likely to endanger the safety of the aircraft) while in flight;

- destruction of or incapacitating or endangering damage to foreign civil aircraft;

- placing a bomb aboard a foreign civil aircraft; or

- attempting or conspiring to do so

Jurisdictional factors:

- a United States national was on board;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 37

Offenses :

- violence causing or likely to cause serious bodily injury or death at an international airport;

- destruction of or serious damage to aircraft or facilities at an international airport; or

- attempting or conspiring to do so

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 112

Offenses :

- assaulting an internationally protected person;

- threatening an internationally protected person; or

- attempting to threaten an internationally protected person

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 175

Offenses :

- develop, produce, stockpile, transfer, acquire, retain, or possess biological weapons or delivery systems, misuse of biological weapons;

- assisting a foreign power to do so; or

- attempting, threatening or conspiring to do so

Jurisdictional factor :

- "there is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the United States," 18 U.S.C. §175(a)

18 U.S.C. § 229

Offenses :

- using chemical weapons outside the United States; or

- attempting, or conspiring to do so

Jurisdictional factors :

- the victim or offender was a United States national; or

- the offense was committed against federal property

18 U.S.C. § 831

Offenses :

- threats, theft, or unlawful possession of nuclear material; or

- attempting or conspiring to do so

Jurisdictional factors :

- a United States national or an American legal entity was the victim of the offense;

- the offender was a United States national or an American legal entity; or

- the offender is afterwards found in the United States;

- the offense involved a transfer to or from the United States; or

- the offense was a threat directed against the United States

18 U.S.C. § 832

Offenses :

-participating in nuclear and weapons of mass destruction threats to the United States

Jurisdiction ;

"There is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C. § 732(b)

18 U.S.C. § 878

Offenses :

- threatening to assault, kill or kidnap an internationally protected person

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1091

Offense : genocide

- killing members of a national, ethnic, racial or religious group

- assaulting members of a national, ethnic, racial or religious group

- imposing reproductive and other group destructive measures on a national, ethnic, racial or religious

group

- forcibly transferring children of a national, ethnic, racial or religious group

Jurisdictional factors :

- the offender was a United States national

- the offender is a stateless person habitually residing in the United States

- the offender is present in the United States

- the offense occurred in part in the United States

18 U.S.C. § 1116

Offense : killing an internationally protected person

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1117

Offense : conspiracy to kill an internationally protected person

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1201

Offense :

- kidnaping an internationally protected person; or

- attempting or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1203

Offense :

- hostage taking; or

- attempting or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 2280

Offenses :

- violence committed against maritime navigation; or

- attempting or conspiracy to commit violence against maritime navigation

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2280 a

Offenses :

- violence committed against maritime navigation involving weapons of mass destruction; or

- attempting or conspiracy to commit violence against maritime navigation involving weapons of mass destruction

Jurisdictional factors :

- committed aboard or against United States vessel or vessel subject to United States jurisdiction;

- the offender was a United States national;

- a United States national was seized, threatened, injured, or killed;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2281

Offenses :

- violence committed against a maritime platform; or

- attempting or conspiracy to commit violence against a maritime platform

Jurisdictional factors :

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2281a

Offenses :

- additional offenses committed against a maritime platform; or

- attempting or conspiracy to commit additional offenses against a maritime platform

Jurisdictional factors :

- the offender was a United States national;

- a United States national was seized, threatened, injured, or killed;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2332a

Offenses :

- using a weapon of mass destruction outside the United States; or

- threatening, attempting, or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offense was committed against federal property

18 U.S.C. § 2332f (effective upon the terrorist bombing convention entering into force for the U.S.)

Offenses :

- bombing public places, government facilities, or public utilities outside the United States; or

- threatening, attempting, or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offense was committed against federal property;

- the offender is present in the United States;

- the offense was committed on United States registered vessel or aircraft; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2332g

Offenses :

- producing, acquiring, or possessing anti-aircraft missiles; or

- threatening, attempting, or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offense was committed against federal property;

- the offender aids or abets the commission of the offense

18 U.S.C. § 2332h

Offenses :

- producing, acquiring, or possessing radiological dispersal devices; or

- threatening, attempting, or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offense was committed against federal property;

- the offender aids or abets the commission of the offense

18 U.S.C. § 2332i)

Offenses :

- acts of nuclear terrorism; or

- threatening, attempting, or conspiring to commit such acts

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offense was committed against federal property;

- the offender is found in the United States

- the offense was committed on United

18 U.S.C. § 2339C

Offenses :

- financing terrorism outside the U.S.; or

- attempting or conspiring to do so

Jurisdictional factors :

- predicate act of terrorism was directed against

+ United States property,

+ United States nationals or their property, or

+ property of entities organized under United States law;

- offense was committed on United States registered vessel or aircraft operated by the United States.;

- the offense was intended to compel action or abstention by the United States;

- the offender was a United States national; or

- (effective upon the terrorism financing convention entering into force for the U.S.) the offender is present in the United States

18 U.S.C. § 2340A

Offenses :

- torture under color of law outside the United States; or

- attempted torture

Jurisdictional factors :

- the offender was a United States national; or

- the offender is present in the United States

18 U.S.C. § 2441

Offense :

- war crimes

Jurisdictional factors :

- an American or member of the American armed forces was the victim of the offense; or

- the offender was an American or member of the American armed forces

49 U.S.C. § 46502(b)

Offenses :

- air piracy outside the special aircraft jurisdiction of the United States; or

- attempted air piracy outside the special aircraft jurisdiction of the United States

Jurisdictional factors :

- a United States national was aboard;

- the offender was a United States national; or

- the offender is afterwards found in the United States

Others

18 U.S.C. §38 (fraud involving aircraft or space vehicle parts)

Jurisdictional factors:

- the offender was a United States national;

- the offender was an entity organized under the laws of the United States;

- United States national or entity owned aircraft or vehicle to which the part related; or

- an act in furtherance of the offense was committed in the United States

18 U.S.C. § 175c (variola virus (small pox))

Jurisdictional factors :

- the offender or victim was a United States national;

- the offense occurred in or affected interstate or foreign commerce

- the offense was committed against U.S. property; or

- the offender aided or abetted the commission of an offense under the section for which there was extraterritorial jurisdiction

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 351

Offenses :

- killing, kidnaping, attempting or conspiring to kill or kidnap, or assaulting a Member of Congress, a Supreme Court Justice, or senior executive branch official

Jurisdictional factors :

- "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C. 351(i)

18 U.S.C. § 877 (mailing threatening communications to the United States from foreign countries)

18 U.S.C. § 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas)

18 U.S.C. § 1029

Offenses :

- fraud related to access devices; or

- attempting or conspiring to commit the offense

Jurisdictional factors :

- involves a device issued, managed or controlled by an entity within the jurisdiction of the United States and

- item used in the offense or proceeds are transported or transmitted to or through the United States or deposited here, 18 U.S.C. 1029(h)

18 U.S.C. § 1119 (killing of American by an American in a foreign country)

18 U.S.C. § 1204 (parental kidnaping by retaining a child outside the United States)

18 U.S.C. § 1512

Offenses :

- tampering with a federal witness or informant; or

- attempting to tamper with a federal witness or informant

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C. 1512(g)

18 U.S.C. § 1513

Offenses :

- retaliating against a federal witness or informant; or

- attempting to retaliate against a federal witness or informant

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C. 1513(d)

18 U.S.C. § 1585 (service aboard a slave vessel by an American or American resident)

18 U.S.C. § 1586 (service aboard a vessel transporting slaves from one foreign country to another by an American or American resident)

18 U.S.C. § 1587 (captain of a slave vessel hovering off the coast of the United States)

18 U.S.C. § 1596

Offenses:

- peonage (18 U.S.C. 1581)

- enticement into slavery (18 U.S.C. 1583)

- sale into involuntary servitude (18 U.S.C. 1584)

- forced labor (18 U.S.C. 1589)

- trafficking in re peonage, slavery, involuntary servitude, or forced labor (18 U.S.C. 1590)

- sex trafficking (18 U.S.C. 1591)

Jurisdictional factors:

- the offender is a United States national

- the offender is found in the United States

18 U.S.C. § 1651 (piracy upon the high seas where the offender is afterwards brought into or found in the United States)

18 U.S.C. § 1652 (Americans acting as privateers against the United States or Americans on the high seas)

18 U.S.C. § 1653 (acts of piracy upon the high seas committed against the United States or Americans by aliens)

18 U.S.C. § 1654 (Americans arming or serving on privateers outside the United States to be used against the United States or Americans)

18 U.S.C. § 1751

Offenses :

- killing, kidnaping, attempting or conspiring to kill or kidnap, or assaulting the President, Vice President, or a senior White House official

Jurisdictional factors :

- "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C. 1751(k)

18 U.S.C. §§ 1831-1839

Offenses :

- economic espionage;

- theft of trade secrets

Jurisdictional factors :

- "[t]his chapter also applies to conduct occurring outside the United States if"

(1) the offender was a United States national or entity organized under United States law; or

(2) an act in furtherance was committed here, 18 U.S.C. 1837

18 U.S.C. § 1956

Offense :

- money laundering

Jurisdictional factors : "[t]here is extraterritorial jurisdiction over the conduct prohibited by this section if

- the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States; and

- the transaction or series of related transactions involves funds... of a value exceeding $10,000," 18 U.S.C. §1956(f)

18 U.S.C. § 1957

Offense :

- prohibited monetary transactions

Jurisdictional factors :

- the offense under this section takes place outside the United States, but the defendant is a United States person [other than a federal employee or contractor who is the victim of terrorism]," 18 U.S.C. 1957(d)

18 U.S.C. § 1992 (attacks on railroad and mass transit systems engaged in interstate or foreign commerce)

18 U.S.C. §§ 2151 - 2157 (sabotage)(definitions afford protection for armed forces of the United States and

"any associate nation" and for things transported "either within the limits of the United States or upon the high seas or elsewhere," 18 U.S.C. §2151)

18 U.S.C. § 2260 (production of sexually explicit depictions of children outside the United States with the

intent to import into the United States)

18 U.S.C. § 2285 (operation of submersible vessel or semi-submersible vessel without nationality)

Jurisdictional factors : "[t]here is extraterritorial Federal jurisdiction over an offense under this section,

including attempt or conspiracy to commit such an offense"

18 U.S.C. § 2290

Offenses :

- destruction of vessels or maritime facilities (18 U.S.C. §2291);

- attempting or conspiring to do so (18 U.S.C. §2291); or

- imparting or conveying false information (18 U.S.C. §2292)

Jurisdictional factors :

- victim or offender was a U.S. national;

- U.S. national was aboard victim vessel;

- victim vessel was a U.S. vessel

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 2332 (killing, attempting or conspiring to kill, or assaulting Americans overseas) (prosecution upon Department of Justice certification of terrorist intent)

18 U.S.C. § 2332b

Offenses :

- terrorist acts transcending national boundaries; or

- attempting or conspiring to do so

Jurisdictional factors :

- use of U.S. mail or other facility of United States foreign commerce;

- affects foreign commerce of the United States;

- victim was federal officer or employee or United States government; or

- the offense was committed within the special maritime or territorial jurisdiction of the United States

18 U.S.C. § 2339B

Offenses :

- providing material support or resources to designated terrorist organizations by one "subject to the jurisdiction of the United States;" or

- attempting or conspiring to do so

Jurisdictional factors :

- "[t]here is extraterritorial jurisdiction over an offense under this section," 18 U.S.C. §2339B(d)

18 U.S.C. § 2339D (receipt of military training from a foreign terrorist organization)

Jurisdictional factors :

- the offender was a United States national;

- the offender was habitual resident of the United States;

- the offender is present in the United States;

- the offense was committed in part in the United States;

- the offense occurred in or affected interstate or foreign commerce; or

- the offender aided or abetted a violation of the section over which extraterritorial jurisdiction exists

18 U.S.C. § 2381 (treason) ("within the United States or elsewhere")

18 U.S.C. § 2423 (U.S. citizen or resident alien traveling overseas with the intent to commit illicit sexual activity or traveling overseas and thereafter engaging in illicit sexual activity)

18 U.S.C. § 2442 (recruitment or use of child soldiers)

Jurisdictional factors:

- the offender was a United States national

- the offender was a stateless person habitually residing in the United States

- the offender is present in the United States

- the offense occurred in part in the United States

18 U.S.C. § 3271 (overseas transportation of illicit sexual purposes or overseas trafficking in persons—by those employed by or accompanying the United States)

21 U.S.C. §337a

Offenses:

-violations of the Federal Food, Drug, and Cosmetic Act

Jurisdictional factors:

- the offense involved an article intended for import into the United States

- an act in furtherance of the offense was committed in the United States

21 U.S.C. § 959

Offenses :

- manufacture, distribution or possession of illicit drugs for importation into the United States

Jurisdictional factors :

- "this section is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States ..." 21 U.S.C. §959(c)

21 U.S.C. § 960A (narco-terrorism)

Jurisdictional factors :

- the offense was a U.S. drug or terrorism offense;

- the offender provided pecuniary value for terrorist offense to injure a U.S. national or damage U.S. property outside the United States;

- the offense was committed in part in the United States and the offender is a U.S. national; or

- the offense occurred in or affected interstate or foreign commerce

46 U.S.C. § § 70503

Offenses :

- manufacture, distribution or possession of controlled substances on various vessels outside United States maritime jurisdiction

Jurisdictional factors :

- the vessel is a "vessel without nationality"; or

- the vessel is of foreign registry or located within foreign territorial waters and the foreign nation has consented to application of the United States law

50 U.S.C. §§3121, 3124

Offense:

- Unlawful disclosure of classified information

Jurisdictional factor :

- the offender is a U.S. citizen or permanent resident alien

Federal Crimes Subject to Federal Prosecution When Committed Overseas

Homicide

18 U.S.C. § 32 (death resulting from destruction of aircraft or their facilities)

Jurisdictional factors :

- aircraft was in the special aircraft jurisdiction of the United States;

- the victim or offender was a United States national; or

- the offender is found in the United States

Attempt/Conspiracy

attempt and conspiracy are included

18 U.S.C. § 37 (death resulting from violence at international airports)

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 38 (death resulting from fraud involving aircraft or space vehicle parts)

Jurisdictional factors :

- the victim or offender was an entity organized under United States law;

- the victim or offender was a United States national; or

- an act in furtherance of the offense was committed in the United States)

18 U.S.C. § 43

Offense (where death results) :

- travel to disrupt an animal enterprise;

- causing damages of over $10,000 to an animal enterprise; or

- conspiring to cause damages of over $10,000 to an animal enterprise

Jurisdictional factors :

- the offense involved travel in the foreign commerce of the United States; or

- the offense involved use of the mails or other facility in the foreign commerce of the United States

18 U.S.C. § 175 (death resulting from biological weapons offenses)

Jurisdictional factors :

- a victim was a United States national; or

- the offender was a United States national

18 U.S.C. § 175c (variola virus (small pox))

Jurisdictional factors :

- the offender or victim was a United States national;

- the offense occurred in or affected interstate or foreign commerce;

- the offense was committed against U.S. property; or

- the offender aided or abetted the commission of an offense under the section for which there was extraterritorial jurisdiction

18 U.S.C. § 229 (death resulting from chemical weapons offenses)

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- committed against United States property

18 U.S.C. § 351 (killing a Member of Congress, cabinet officer, or Supreme Court justice)

Attempt/conspiracy

attempt and conspiracy are included

18 U.S.C. § 831

Offenses :

- unlawful possession of nuclear material where the offender causes the death of another; or

- attempting or conspiring to do so

Jurisdictional factors :

- the offense is committed within the special aircraft or special maritime and territorial jurisdiction of the United States;

- a United States national or an American legal entity was the victim of the offense;

- the offender was a United States national or an American legal entity;

- the offender is afterwards found in the United States;

- the offense involved a transfer to or from the United States; or

- the offense was a threat directed against the United States

18 U.S.C. § 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas)

18 U.S.C. § 1091 (genocide)

Jurisdictional factors :

- the offender was a United States national

- the offender is a stateless person habitually residing in the United States

- the offender is present in the United States

- the offense occurred in part in the United States

18 U.S.C. § 1111 (murder within the special maritime jurisdiction of the United States)

18 U.S.C. § 1112 (manslaughter within the special maritime jurisdiction of the United States)

18 U.S.C. § 1113 (attempted murder or manslaughter within the special maritime jurisdiction of the United States)

18 U.S.C. § 1116 (killing an internationally protected person)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1117 (conspiracy to kill an internationally protected person)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1119 (a United States national killing or attempting to kill a United States national outside the United States)

18 U.S.C. § 1201 (kidnaping where death results)

Jurisdictional factors :

- the victim is removed from the United States;

- the offense occurs within the special aircraft or special maritime and territorial jurisdiction of the United States;

- the victim is a federal officer or employee; or

- the victim is an internationally protected person and

+ the victim was a United States national;

+ the offender was a United States national; or

+ the offender is afterwards found in the United States

Attempt/conspiracy

attempt and conspiracy are included

18 U.S.C. § 1203 (hostage taking where death results)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

Attempt/conspiracy

attempt and conspiracy are included

1 8 U.S.C. § 1512 (tampering with a federal witness or informant where death results)

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1512(g)

Attempt/conspiracy

attempt is included

18 U.S.C. § 1513 (retaliating against a federal witness or informant)

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1513(d))

Attempt/conspiracy

attempt is included

18 U.S.C. § 1652 (murder of an American by an American on the high seas in the name of a foreign state or person)

18 U.S.C. § 1751 (killing the President, Vice President, or a senior White House official)

Jurisdictional factors :

- "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.1751(k)

Attempt/conspiracy

attempt and conspiracy are included

18 U.S.C. §§ 2241, 2245 (aggravated sexual abuse within the special maritime and territorial jurisdiction of the United States where death results)

18 U.S.C. §§ 2242, 2245 (sexual abuse within the special maritime and territorial jurisdiction of the United States where death results)

18 U.S.C. §§ 2243, 2245 (sexual abuse of a minor or ward within the special maritime and territorial jurisdiction of the United States where death results)

18 U.S.C. §§ 2244,2245 (abusive sexual contact within the special maritime and territorial jurisdiction of the United States where death results)

18 U.S.C. § 2280 (a killing resulting from violence against maritime navigation)

Jurisdictional factors

- aboard a ship of American registry;

- committed by an American national aboard a ship of foreign registry or outside the U.S.;

- victim was an American;

- committed in the territorial waters of another country and the offender is subsequently found in the United States; or

- committed in an effort to compel federal action or abstention

18 U.S.C. § 2281 (resulting from violence against fixed maritime platforms)

Jurisdictional factors

- aboard a platform on the United States continental shelf;

- committed by an American national aboard a platform on the continental shelf of another nation

- victim was an American;

- committed aboard a platform on the continental shelf of another nation and the offender is subsequently found in the United States; or

- committed in an effort to compel federal action or abstention

18 U.S.C. § 2283 (transportation of explosives, biological, chemical, radioactive or nuclear materials for terrorist purposes on the high seas or aboard a United States vessel or in United States waters)

18 U.S.C. § 2290

Offenses :

- destruction of vessels or maritime facilities (18 U.S.C. §2291); or

- attempting or conspiring to do so (18 U.S.C. §2291)

Jurisdictional factors :

- victim or offender was a United States national;

- U.S. national was aboard victim vessel; or

- victim vessel was a United States vessel

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 2332 (killing an American overseas)

Jurisdictional factors

- prosecution only on DoJ certification "to coerce, intimidate, or retaliate against a government or civilian population"

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 2332a (resulting from use of weapons of mass destruction)

Jurisdictional factors

- victim or offender is American; or

- against federal property

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 2332f (resulting from bombing of public places, government facilities, public transportation systems or infrastructure facilities)(effective when the terrorist bombing treaty enters into force for the U.S.)

Jurisdictional factors

- victim or offender is American;

- aboard aircraft operated by the United States;

- aboard vessel of aircraft of United States registry;

- offender is found in the United States;

- committed to coerce United States action; or

- against federal property

Attempt/conspiracy

includes attempts and conspiracies

18 U.S.C. § 2340A (resulting from torture committed outside the United States (physical or mental pain inflicted under color of law upon a prisoner))

Jurisdictional factors

- American offender; or

- offender subsequently found within the United States

Attempt/conspiracy

includes attempts

18 U.S.C. § 2441 (war crimes)

Jurisdictional factors

- victim or offender is an American; or

- victim or offender is a member of United States armed forces

18 U.S.C. § 3261 (offenses committed by members of the United States armed forces or individuals accompanying or employed by the United States armed forces overseas)

49 U.S.C. § 46502 (air piracy where death results)

49 U.S.C. § 46506 (murder, manslaughter, or attempted murder or manslaughter within the special aircraft jurisdiction of the United States)

Kidnaping

18 U.S.C. § 351 (kidnaping a Member of Congress, a Supreme Court Justice, or senior executive branch official)

Jurisdictional factors :

- "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.351(i)

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas)

18 U.S.C. § 1091 ( genocide)

- forcibly transferring children of a national, ethnic, racial or religious group

Jurisdictional factors :

- the offender was a United States national

- the offender is a stateless person habitually residing in the United States

- the offender is present in the United States

- the offense occurred in part in the United States

18 U.S.C. § 1201 (kidnaping)

Jurisdictional factors :

- the victim is removed from the United States;

- the offense occurs within the special aircraft or special maritime and territorial jurisdiction of the United States;

- the victim is a federal officer or employee; or

- the victim is an internationally protected person and

+ the victim was a United States national;

+ the offender was a United States national; or

+ the offender is afterwards found in the United States

18 U.S.C. § 1203 (hostage taking)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 1204 (international parental kidnaping detaining a child outside of the United States in violation of parental custody rights)

18 U.S.C. § 3261 (offenses committed by members of the United States armed forces or individuals accompanying or employed by the United States armed forces overseas)

Assault

18 U.S.C. § 37 (violence at international airports)

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

Attempt/conspiracy

- includes attempts and conspiracies

18 U.S.C. § 112 (assaulting an internationally protected person)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 113 (assault within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 114 (maiming within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 351 (assaulting a Member of Congress, a Supreme Court Justice, or senior executive branch official;

Jurisdictional factor :

"[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.351(i)

18 U.S.C. § 831

Offenses :

- unlawful use of nuclear material where the offender causes the serious injury to another; or

- attempting or conspiring to do so

Jurisdictional factors :

- the offense is committed within the special aircraft or special maritime and territorial jurisdiction of the United States;

- a United States national or an American legal entity was the victim of the offense;

- the offender was a United States national or an American legal entity;

- the offender is afterwards found in the United States;

- the offense involved a transfer to or from the United States; or

- the offense was a threat directed against the United States

18 U.S.C. § 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas)

18 U.S.C. § 1091( genocide)

- assaulting members of a national, ethnic, racial or religious group

- forcibly transferring children of a national, ethnic, racial or religious group

Jurisdictional factors :

- the offender was a United States national

- the offender is a stateless person habitually residing in the United States

- the offender is present in the United States

- the offense occurred in part in the United States

18 U.S.C. § 1512 (tampering with a federal witness or informant through the use of physical force)

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1512(g)

Attempt/conspiracy

attempt is included

18 U.S.C. § 1513

Offenses (causing physical injury) :

- retaliating against a federal witness or informant; or

- attempting to retaliate against a federal witness or informant

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1513(d))

18 U.S.C. § 1655 (assaulting the commander of a vessel is piracy)

18 U.S.C. § 1751 (assaulting the President, Vice President, or a senior White House official; "[t]here is extraterritorial jurisdiction over an offense prohibited by this section," 18 U.S.C.1751(k))

18 U.S.C. § 2191 (cruelty to seamen within the special maritime jurisdiction of the United States)

18 U.S.C. § 2194 (shanghaiing sailors for employment within the foreign commerce of the United States)

18 U.S.C. § 2241 (aggravated sexual abuse within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2242 (sexual abuse within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2243 (sexual abuse of a minor or ward within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2244 (abusive sexual contact within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2261A (stalking within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2280

Offenses :

- violence committed against maritime navigation; or

- attempting or conspiracy to commit violence against maritime navigation

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2281

Offenses:

- violence committed against a maritime platform; or

- attempting or conspiracy to commit violence against a maritime platform

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2332 (assaulting a United States national outside the United States) (prosecution upon Department of Justice certification of terrorist intent)

18 U.S.C. § 2332a

Offenses :

- using a weapon of mass destruction outside the United States resulting physical injury; or

- attempting or conspiring to do so

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offense was committed against federal property

18 U.S.C. § 2332b

Offenses :

- terrorist assaults transcending national boundaries; or

- attempt or conspiracy

Jurisdictional factors :

- use of United States mail or other facility of United States foreign commerce;

- affects foreign commerce of the United States;

- victim was federal officer or employee or United States government; or

- the offense was committed within the special maritime or territorial jurisdiction of the United States

18 U.S.C. § 2340A

Offenses :

- torture under color of law outside the United States; or

- attempted torture

Jurisdictional factors :

- the offender was a United States national; or

- the offender is present in the United States

18 U.S.C. § 3261 (offenses committed by members of the United States armed forces or individuals accompanying or employed by the United States armed forces overseas)

46 U.S.C. § 11501 (seaman's assault upon officers within the special maritime jurisdiction of the United States)

49 U.S.C. § 46504 (assaulting a flight crew member within the special aircraft jurisdiction of the United States)

49 U.S.C. § 46506 (assaults within the special aircraft jurisdiction of the United States)

Property Destruction

18 U.S.C. § 32 (destruction of aircraft or their facilities)

Jurisdictional factors :

- aircraft was in the special aircraft jurisdiction of the United States;

- the victim or offender was a United States national; or

- the offender is found in the United States

Attempt/Conspiracy

attempt and conspiracy are included

18 U.S.C. § 33 (destruction of motor vehicles or their facilities used in United States foreign commerce)

18 U.S.C. § 37 (violence at international airports)

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 81 (arson within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 229 (chemical weapons damage)

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- committed against United States property

18 U.S.C. § 831 ( use nuclear material of damage or destroy)

Jurisdictional factors :

- committed within the special aircraft or special maritime and territorial jurisdiction of the United States

- a United States national or an American legal entity was the victim of the offense;

- the offender was a United States national or an American legal entity;

- the offender is afterwards found in the United States; or

- the offense involved a transfer to or from the United States

18 U.S.C. § 956 (conspiracy and overt act within the United States to commit murder, kidnaping, maiming or the destruction of certain property overseas)

18 U.S.C. § 1030 (computer abuse involving damage to federal or United States financial systems or systems used in the foreign commerce or communications of the United States)

18 U.S.C. § 1363 (destruction of property within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2272 (destruction of a vessel within the maritime jurisdiction of the United States by its owner)

18 U.S.C. § 2273 (destruction of a vessel within the maritime jurisdiction of the United States by others)

18 U.S.C. § 2275 (burning or tampering with a vessel within the maritime jurisdiction of the United States)

18 U.S.C. § 2280 (destruction of maritime navigational facilities)

Jurisdictional factors :

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2281 (damage to a maritime platform)

Jurisdictional factors :

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2290

Offenses :

- destruction of vessels or maritime facilities (18 U.S.C. 2291); or

- attempting or conspiring to do so (18 U.S.C. 2291)

Jurisdictional factors :

- victim or offender was a United States national;

- United States national was aboard victim vessel;

- victim vessel was a United States vessel

18 U.S.C. § 2332a (using a weapon of mass destruction)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offense was committed against federal property

18 U.S.C. § 2332f (effective upon the terrorist bombing convention entering into force for the U.S.) (bombing public places, government facilities, or public utilities outside the United States)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offense was committed against federal property;

- the offender is present in the United States;

- the offense was committed on United States registered vessel or aircraft; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 3261 (offenses committed by members of the United States armed forces or individuals accompanying or employed by the United States armed forces overseas)

Threats

18 U.S.C. § 32 (threats to destroy foreign civil aircraft, or aircraft in the special aircraft jurisdiction of the United States, or aircraft or aircraft facilities in the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 112 (threatening internationally protected person)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 175 (threatening to develop, produce, stockpile, transfer, acquire, retain, or possess biological weapons or delivery systems, misuse of biological weapons; or threatening to assisting a foreign power to do so; "there is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the United States," 18 U.S.C.175(a)

18 U.S.C. § 229 (threatening to use chemical weapons)

Jurisdictional factors :

- the victim or offender was a United States national; or

- the offense was committed against federal property

18 U.S.C. § 831 (threaten to use nuclear material of injury or destroy)

Jurisdictional factors :

- committed within the special aircraft or special maritime and territorial jurisdiction of the United States;

- a United States national or an American legal entity was the victim of the offense;

- the offender was a United States national or an American legal entity; or

- the offender is afterwards found in the United States;

- the offense involved a transfer to or from the United States; or

- the offense was a threat directed against the United States

18 U.S.C. § 875 (transmission of a threat in the foreign commerce of the United States)

18 U.S.C. § 877 (mailing a threat to kidnap or injure from a foreign country to the United States)

18 U.S.C. § 878 (threatening to kill, kidnap or assault an internationally protected person)

Jurisdictional factors :

- a victim was a United States national;

- the offender was a United States national; or

- the offender is afterwards found in the United States

18 U.S.C. § 1203 (threaten to kill or injure a hostage outside the United States)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 1512 (threatening a federal witness or informant)

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C.1512(g)

18 U.S.C. § 1513 (threatening to retaliate against a federal witness or informant)

Jurisdictional factors :

- "[t]here is extraterritorial Federal jurisdiction over an offense under this section," 18 U.S.C. §1513(d))

18 U.S.C. § 2280 (threats of violence against maritime navigation)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2281 (threatens injury or destruction aboard a fixed maritime platform)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offender is afterwards found in the United States; or

- the offense was intended to compel action or abstention by the United States

18 U.S.C. § 2290

Offenses :

- destruction of vessels or maritime facilities (18 U.S.C. §2291); or

- attempting or conspiring to do so (18 U.S.C. §2291)

Jurisdictional factors :

- victim or offender was a United States national;

- United States national was aboard victim vessel;

- victim vessel was a United States vessel

18 U.S.C. § 2332a (threatening to use a weapon of mass destruction)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national; or

- the offense was committed against federal property

18 U.S.C. § 2332f (effective upon the terrorist bombing convention entering into force for the U.S.) (threatening to bomb public places, government facilities, or public utilities outside the United States)

Jurisdictional factors :

- the victim was a United States national;

- the offender was a United States national;

- the offense was committed against federal property;

- the offender is present in the United States;

- the offense was committed on United States registered vessel or aircraft; or

- the offense was intended to compel action or abstention by the United States

49 U.S.C. § 46507 (threats or scares concerning air piracy or bombing aircraft in the special aircraft jurisdiction of the United States)

Theft

18 U.S.C. §38 (fraud involving aircraft or space vehicle parts)

Jurisdictional factors :

- the victim or offender was an entity organized under United States law;

- the victim or offender was a United States national; or

- an act in furtherance of the offense was committed in the United States)

18 U.S.C. § 831 (theft of nuclear materials)

Jurisdictional factors :

- within the special aircraft or special maritime and territorial jurisdiction of the United States;

- the victim was a United States national or an American legal entity;

- the offender was a United States national or an American legal entity;

- the offender is afterwards found in the United States; or

- the offense involved a transfer to or from the United States

18 U.S.C. § 1025 (theft by false pretenses or fraud within the special maritime and territorial jurisdiction of the United States)

Counterfeiting

18 U.S.C. §§ 470-474 (counterfeiting United States obligations outside the United States)

Piggyback Statutes

18 U.S.C. § 2 (principals)

18 U.S.C. § 3 (accessories after the fact)

18 U.S.C. § 4 (misprision)

18 U.S.C. § 371 (conspiracy)

18 U.S.C. § 924(c), (j) (using or carrying a firearm during the course of a federal crime of violence or drug trafficking crime)

18 U.S.C. § 1952 (Travel Act)

18 U.S.C. §§ 1956-1957 (money laundering)

18 U.S.C. § 1959 (violence in aid of racketeering)

18 U.S.C. §§ 1961-1965 (RICO)

21 U.S.C. § 846 (conspiracy or attempt to violate the Controlled Substances Act)

21 U.S.C. § 963 (conspiracy or attempt to violate the Controlled Substances Import and Export Act)

Model Penal Code

§1.03 Territorial Applicability

(1) Except as otherwise provided in this Section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:

(a) either the conduct that is an element of the offense or the result that is such an element occurs within this State; or

(b) conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit an offense within the State; or

(c) conduct occurring outside the State is sufficient under the law of this State to constitute a conspiracy to commit an offense within the state and an overt act in furtherance of such conspiracy occurs within the state; or

(d) conduct occurring within the State establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit , an offense in another jurisdiction that also is an offense under the law of this State; or

(e) the offense consists of the omission to perform a legal duty imposed by the law of this State with respect to domicile, residence or a relationship to a person, thing or transaction in the State; or

(f) the offense is based on a statute of this State that expressly prohibits conduct outside the State, when the conduct bears a reasonable relation to a legitimate interest of this State and the actor knows or should know that his conduct is likely to affect that interest.

(2) Subsection (1)(a) does not apply when either causing a specified result or a purpose to cause or danger of causing such a result is an element of an offense and the result occurs or is designed or likely to occur only in another jurisdiction where the conduct charged would not constitute an offense, unless a legislative purpose plainly appears to declare the conduct criminal regardless of the place of the result.

(3) Subsection (1)(a) does not apply when causing a particular result is an element of an offense and the result is caused by conduct occurring outside the State that would not constitute an offense if the result had occurred there, unless the actor purposely or knowingly caused the result within the State.

(4) When the offense is homicide, either the death of the victim or the bodily impact causing death constitutes a result within the meaning of Subsection (a)(1), and if the body of a homicide victim is found within the State, it is presumed that such result occurred within the State.

(5) This State includes the land and water and the air space above such land and water with respect to which the State has legislative jurisdiction.

Restatement of the Law Third: Foreign Relations Law of the United States

§401. Categories of Jurisdiction

Under international law, a state is subject to limitations on

(a) jurisdiction to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court;

(b) jurisdiction to adjudicate, i.e., to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings;

(c) jurisdiction to enforce, i.e., to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action.

§402. Bases of Jurisdiction to Prescribe

Subject to §403, a state has jurisdiction to prescribe law with respect to

(1)(a) conduct that, wholly or in substantial part, takes place within its territory;

(b) the status of persons, or interests in things, present within its territory;

(c) conduct outside its territory that has or is intended to have substantial effect within its territory;

(2) the activities, interests, status, or relations of its nationals outside as well as within its territory; and

(3) 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 state interests.

§403. Limitations on Jurisdiction to Prescribe

(1) Even when one of the bases for jurisdiction under §402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable.

(2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted;

(d) the existence of justified expectations that might be protected or hurt by the regulation;

(e) the importance of the regulation to the international political, legal, or economic system;

(f) the extent to which the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with regulation by another state.

(3) When it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, Subsection (2); a state should defer to the other state if that state's interest is clearly greater.

§404. Universal Jurisdiction to Define and Punish Certain Offenses

A state has jurisdiction to define and prescribe punishment for certain Offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the jurisdiction indicated in §402 is present.

§421. Jurisdiction to Adjudicate

(1) A state may exercise jurisdiction through its courts to adjudicate with respect to a person or thing if the relationship of the state to the person or thing is such as to make the exercise of jurisdiction reasonable.

(2) In general, a state's exercise of jurisdiction to adjudicate with respect to a person or thing is reasonable if, at the time jurisdiction is asserted:

(a) the person or thing is present in the territory of the state, other than transitorily;

(b) the person, if a natural person, is domiciled in the state;

(c) the person, if a natural person, is resident in the state;

(d) the person, if a natural person, is a national of the state;

(e) the person, if a corporation or comparable juridical person, is organized pursuant to the law of the state;

(f) a ship, aircraft, or other vehicle to which the adjudication relates is registered under the laws of the state;

(g) the person, whether natural or juridical, has consented to the exercise of jurisdiction;

(h) the person, whether natural or juridical, regularly carries on business in the state;

(i) the person, whether natural or juridical, had carried on activity in the state, but only in respect to such activity;

(j) the person, whether natural or juridical, had carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect to such activity; or

(k) the thing that is the subject of adjudication is owned, possessed, or used in the state, but only in respect to a claim reasonably connected with that thing.

(3) A defense of lack of jurisdiction is generally waived by any appearance by or on behalf of a person or thing (whether as plaintiff, defendant, or third party), if the appearance is for a purpose that does not include a challenge to the exercise of jurisdiction.

§431. Jurisdiction to Enforce

(1) A state may employ judicial or nonjudicial measures to induce or compel compliance or punish noncompliance with its laws or regulations, provided it has jurisdiction to prescribe in accordance with §§402 and 403.

(2) Enforcement measures must be reasonably related to the laws or regulations to which they are directed; punishment for noncompliance must be preceded by an appropriate determination of violation and must be proportional to the gravity of the violation.

(3) A state may employ enforcement measures against a person located outside the territory

(a) if the person is given notice of the claims or charges against him that is reasonable in the circumstances;

(b) if the person is given an opportunity to be heard, ordinarily in advance of enforcement, whether in person or by counsel or other representative; and

(c) when enforcement is through the courts, if the state has jurisdiction to adjudicate.

18 U.S.C. §7. Special Maritime and Territorial Jurisdiction of the United States (text)

The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

(2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line.

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

(4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States.

(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, District, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

(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.

(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.

(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.

(9) 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.

Nothing in this paragraph s hall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.

18 U.S.C. §3261. Military Extraterritorial Jurisdiction (text)

(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 in this 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.

(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.

18 U.S.C. §3271. Trafficking in Persons (Text)

(a) Whoever, while employed by or accompanying the Federal Government outside the United States, engages in conduct outside the United States that would constitute an offense under chapter 77 or 117 of this title if the conduct had been engaged in within the United States or within the special maritime and territorial jurisdiction of the United States 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.

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Notes and Comments

Defining and Punishing Abroad: Constitutional Limits on the Extraterritorial Reach of the Offenses Clause, 48 Duke Law Journal 1305 (1999)

Ryan Walsh, Note , Extraterritorial Confusion: The Complex Relationship Between Bowman and Morrison and a Revised Approach to Extraterritoriality , 47 Val. U. L. Rev. 627 (2013)

The Five Bases of Extraterritorial Jurisdiction and the Failure of the Presumption Against Extraterritoriality , 33 Hastings International & Comparative Law Review 177 (1997)

S. Nathan Williams, Note, The Sometimes "Craven Watchdog": The Disparate Criminal-Civil Application of the Presumption Against Extraterritoriality , 63 Duke Law Jouran1381 (2014).