Memorandum: Potentially Relevant Criminal Statutes

FORLATIC- 'CONTAINED
UNCLASSIFIED
DATE 1;7-24-2'009. BY .65175
EL• ' . Potentially Relevant Federal Criminal Statutes
•Jurisdictional Statutes
18 U.S.C. 3261 et seq-IVIEJA
Provides for jurisdiction of conduct that would constitute a'felony had the activity
been engaged in within the Special Maritime and Territorial Jurisdiction of the United States;
,where the offender was employed by or accompanying the military outside•the United States. •
Also provides for jurisdiction over militar•members under specific circumstances, including if •
military member charged as co-defendant with non-military member.
Provides that DoD shall, after consulting with State and DOJ, prescribe
regulations governing the apprehension, detention, delivery and removal of persons under MEJA.
The regulations will take effect 90 days after submitted to Congress. Regulations not yet
•submitted to Congress; but DoD, State and DOJ in final stages of consultation requirement.
Provides that DoD, after consultation with State and.D0J, shall prescribe
regulations requiring that, to maximum extentvracticable, notice shall' be provided to persons
employed by or accompanying military, but sate that failure to proVide such notice shall not
defeat jurisdiction or provide a defense. '
...
' . .. — ...- /
Provides that persons who afe nationals of, or ordinarily resident in the host nation
• are not considered "employed" by the military for purposes of the Act. (The draft regulations •- .
also note that third country nationals may have a nexus to the United States that is So tenuous that -
the Act should not be applied, and advises consultation with DOJ and With State in-such cases.)
18 US.C. 7 -Special Maritime and Territorial Jurisdiction of the United States
Defines as within the territorial jurisdiction of the United States acts committed by. a
national of the United States on the "premises" of United States military...including the
buildings, parts of buildings and land used for purposes of those missions or entities. This
provision does not apply ifpersOn's conduct is Chargeable under MESA.
Substantive Statutes
18 U.S. C. S 113- Assaults within Maritime and Territorial Jurisdiction
includes, assault with intent to commit Murder, assault with intent to commit a felony, .
assault with a dangerous weapon with intent to do bodily harm and-without just cause or excuse,
assault by striking, beating or wounding (misdemeanor), simple assault (misdemeanor), assault,
resulting in serious bodily injury, and assault resulting in substantial bodily injury.
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18 U.S.C. 114 - Maiming Within Maritime and Territorial Jurisdiction
whoever, with the intent to torture, maim or disfigure, cuts, bites, or Slits the nose, ear, or
lip, or cuts out or disables the tongde, or puts out or destroys an eye; or cuts off or disables a limb
or any member of another person, or whoever, with • like intent, throws or pours upon another
person any scalding water, corrosive acid, or caustic shbstance... •
' 18 U.S.C.. 2241 - Agoravateci Sexual Abuse
Whoever in special maritime or territorial jurisdiction or in a federal prison, knowingly
' causes another person to engage in a sexual actby
using force against that other person, or
by threatening or placing that other person in fear that any person will be subjected to:
death,, serious bodily injury, or kidnaping...
18 U.S.C. 2242 - Sexual Abase
Whoever in special maritime or territorial jurisdiction or in a federal:prison knowingly
causes another person to engage in a sexual act by threatening or placing that other.person
in fear (other than by threatening or placing that other person in, fear that any person will be
subjected to death, serious bodily injury, or kidnaping)
18 U.S.C. §2243-Sexual abuse of a minor or ward •
Whoever, in special maritime or territorial jurisdiction of the United States or:in a,
federal.prison, knowingly engages iria sexual act with another person 'who isin
official detention; and ' '
- • under the custodial, 8upervisory, or disciplinary authority of the person so engaged:
18 U.S.C.' 2244 - Abusive Sexual Contact .
(Under MEJA, violations of this statute could only be charged for violations of
subsections (a)(1)-(3), which are punishable by more than one year in prison) •
- Whoever, in the special maritime or territorial jurisdiction.of the US or in a federal
prison, knowingly engages in or causes sexual contact with or by another person, had the
sexual contact been a sexual, act, shall be fined under this title, or imprisoned....
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18 U.S.C. 5 2340A .-Torture
(a) Offense.- Whoever outside the United States commits or attempts to
. commits torture shall... be imprisoned not more than twenty years...
(b) Jurisdiction...There is jurisdiction over the activity prohibited in subsection (a) if-
(1) the alleged offender is a national of the United States; or
• (2) the alleged offender is present in the United States...
(c) Conspiracy. - A person whci conspires to commit an offense under this section shall "
be subject to the same penalties (other than the penalty of death).•
18.U.S•C. §2340 Definitions
As used in this Chap, ter-
' (1) " Torture" means an act committed by a person.
acting under . color of law '
—;specifically intended to inflict severe physical or mental pain Dr
suffering
— other than pain or.suffering incidental to lawful sanctions
upon another person within his custody or control •
(2) "Severe mental pain or suffering" means the pr. OlOnged.mental harm Caiiseclb
or resulting from - . • , - • . .
(A) the intentional infliction Or threatened infliction of severe physical.
pain or suffering; •
(B) the administration or application, or threatened adMinistration or
application, Of mind altering substances or other procedures calculated • .
profoundly to disrupt the senses or the personality;
( C ) threat of imminent death;. or
(D).the threat that another person.will imminently be subjected to death,
severe physical pain... •
(3) "United States" includes all areas under the jurisdiction of the UnitedStates of
the places described in sections 5 and 72 of this title....
2 18 U.S.0 §7(9)-includes military premises in foreign countries, but does not apply with
respect to a person described in § 3261 (a) (MESA).
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18 U.S.C. 2441 War Crimes
• (a) Offense.— Whoever, whether inside or outside the United.S tates,
commits a war crime, in:any of the circumstances described in subsection
(b) shall be ....imprisoned for life or any term of Years...
(b) Circumstances. The circumstances are....that persons committing such
war crime... is a member•)f the Aimed Forces of the United States...or a
national of the Untied States..: •
(c •efinition. 'war crime' means any conduct —
(1) defined as a grave breach' in any international conventions signed at •
Geneva 12 August 1949, or any protocol to such convention to which the
United States is a party'
* • *
(3) which constitutes a violation of common Article 3 4 .of the international
conventions signed at Geneva, 12 August 1949, or any protoco I....and
which deals With non-international armed conflict...
18 U.S.C.'' 1510 (a)—Obstruction of Criminal Investigcitions
• •
Whoever willfully endeavors by means of bribery to obstruct, delay or
prevent the communication of information relating to a:violation of any
criminal statute of the United States by anyperson to a criminal .
investigator shal be fined under this title, or imprisoned for five years , or
both .
' Grave breaches to. 1949 Geneva Conventions HI (relative to prisoners of War, Article
130), or 1949 Geneva ConventionW (relative to.civilians, Article 147) include •
• • wilful killing, torture or inhuman treatment, •
wilfully causing great suffering or serious injury to body or health
'Violations of Common Article 3 include
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture •
outrages upon personal dimity, in particular humiliating and degrading treatment
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18 1001-False Statements
• Except as otherwise provided in this section, whoever, in any'matter within the
jurisdiction of the executive, legislative , or judicial branch of the Government of the United •
States, knowingly and Willfully
• — falsifies ;conceals Or covers up by any trick, scheme, or'device
a material fact;
— makes any materially . false, fictitious, or fraudulent statement or
representation; or
1— make onuses any false writing or document knowing the same
to .contain any materially false, fictitious, or fraudulent'statement or'
,entry;
Shall be fined under this title or. imprisoned not more than five
years or both.
. 18 U.S.C. § 371 - .Conspiracy -
•
If two or more persons conspire either to commit any offense against.the United States,. or.
any agendy thereof, or to defraud the. United States in any manner or for any purpose, •
---- and one or more of such persons do any act to effect the . .
object of the conspiracy
—each shall be fined or imprisoned under this. title
–not more than five years or both'
'If the offense which was the object of the conspiracy was.a rnisdeameanor, then the
punishment shall. not exceed the maximum punishment for a misdeameannr -
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Crimes Referral Stature and MOUs
A. Statutory Requirements.
Title 28 U.S.C. § 535(b) requires that— .•
Dilly information, allegation or complaint received in a department of the
executive branch of the Government relating to violations of title 18
involving government officers or employees shall be expeditiously
.reported to the Attorney General by the head of the department or . agency,
• unless-
(1)the responsibility to. perform the investigation ... is assigned otherwise
by another pro -vision '‘Of law; or .
(2) as to any department or agency.... the Attorney General directs
• otherwise with respect to a specified class of information , allegation, or
complaint.
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