U.S. Department of Justice Monograph re: Fundamental Principles Governing Extraterritorial Prosecutions - Jurisdiction, Venue and Procedural Rights

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. ALL 117077 .TIO 7-7 C07-77-k7-!-
HEREIN I5 UNCLA22I FIE)
DATE 07-27-2009 BY 65179 L' ISM
UNITED STATES
DEPARTMENT OF JUSTICE
C ounterterrorism. S e ction
Criminal Division
Fundamental Principles Govern.ing -Etraferritorial
Prosecutions:;-- ..Jurisdiction, Venue : arid, .
..Procedural Rights
March 2004
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FUNDAMENTAL PRINCIPLES d blitRiNTING EXTRATERRITORIAL
PROSECUTIONS — JURISDICTION, YENLIE, AND PROCEDURAL , •
RIGHTS
. . • •
The purpose of this monograph is to address legal principles. governing issues that .
frequently arise in the prosecution of extrateritorial terorism cases. These include the ability of
the United States to proscribe•such acts and assert jurisdiction over them , the determination of
the district in which such prosecutions,Will be venued, and the ability of the United States to•
project its investigative and law enforCement capabilities overseas. In the context of
extraterritorial law enforcement activity, we also consider the extent to which the procedural
guarantees of the United States Constitution apply to possible subjects. AlthOugh the principles
contained in this survey represent .the current views of the Counterterrorist -1 Section and comport
with what we believe to be the preSent state of the law, just as in any criminal prosecution',
government counsel should always consult the current law of the circuit and its 'application to the
particular case. Should legal issues arise that require further guidance, it may be obtained from
either the Criminal Division's.Counterterrorism Section or the Department's Office of Legal
Counsel. •
I. JURISDICTION
A. Definitions.
•• •
"Jurisdiction"' in a criminal case addresies power. or. .authority — the question of
jurisdiction informs us first of the authority by which Con gress enacts le gislation; and, Second, .
the authOrity that the courts have to act in a particular case.'
" •
In contrast, the term "venue" simply defines the judicial district'in which such authority,
•is to be exercised once an offense is committed. • " • ..
B. - Constraints under international law — limitations .•n the exercise of jurisdiction
when such-action infringes upon' the rights of other sovereigns. •
"Extraterritorial jurisdiction'' simply relates to the authority of a government to
criminalize activity that occurs outside its territorial borders or to investigate or prosecute. such
activity. The exercise of extraterritorial jurisdiction by one state with respect to criminal activity
necessarily encroaches, in some measure, upon the sovereignty of the nation where the offense .
occurred. Under custortnaryintemational law, there are five generally recognized principles upon
which a country can perfnissibly.assert extraterritorial jurisdiction._ See United States V : Yousef,
.327 F..3d,.56, 91.-92 (2d Cir. 2003). The jurisdictionalasesinclude the following: (1)-the -•"2 —
objective territorial prikciple — where the offense occurs in one country but has .effects in
another, e.g., killing.someone by shooting across an international border; (2) the nationality
principle — the offender is a citizen of the prosecuting state; (3) the protective principle - the
offense offends the vital interests of the prosecuting state e.g., counterfeiting that nation's
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currency; (4) the passive personality principle — the victim is a citizen.of the prosecuting state;
and (5) the universality principle --the offense, such as piracy, is universally condemned by the
international community, sometimes in a multinational convention or treaty to which the United.
States is a sipatory...Furthermore, in Yousef the court held that, where a jurisdictional provision.
authorizing its extraterritorial assertion has 'been enacted to implement a treaty obligation; the
relevant treaty provision is, itself; a sufficient basis under international law for - asserting such
jurisdiction. •
Despite these limitations upon the exercise of extraterritorial juriadictionsterriming from •
:• customary international law, where Congress has clearly articulated its intent to legislate
•extraterritorially, the legislation trumps any limitation upon the assertion of such jurisdiction that
maybe impliCit from these -principles. United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir.
1991); United States v.•.Yousef, 327 F.3d 56;93 (2d Cir. 2003). Moreover, where•Congress'
intent is silent;the courts ordinarily infer that it intended to legislate iii a manner that is in
harmony with such principles.
C. 'Constitutional Constraints Upon the Assertion of Extraterritorial Jurisdiction'
1. The Due Process' Clause
Several circuits have held that, where Congress criminalizes extraterritorial conduct, . '•
_subs. tantive-,due process requires some .nexus betiv, een theU riitedStates, or its vital interests,
.
•
the proscription. United States v. Yousef, 327, F.3d at 1 12 (plan to attack Philippine Airlines •
-flight sufficiently rela:ted, under Due Process Clause, to U.S. interests where attack was a "test •
run" for further attacks on U.S., flag carvers); United States v.• Davis 905 F.2d 245 (9' Cir.
• 1990). The Clause is ordinarily 'satisfied Merely by demonstrating that the offense falls within
one of the five internationally recogrizedbaies for asserting.eXtraterritorial jurisdiction set out
• above. Cf. United States , v. MarinoGarcia, 679 F:2d.1373, 1379- 81 (11th Cir. 1982)(imputing to
Congress the intent to confine reach of extraterritorial jurisdiction over a stateless vessel: on the
high seas to that permitted under international law).
. 2. Congressional Authority to Legislate EXtraterritoriallv
, These principles do not, themselves, create extraterritorial jurisdiction. Congess,mustenact
a statute authorizing the assertion of such jurisdiction, and it is clear that it possesses the
power under the Constitution to do so. See EEOC v. Arabian Amer. Oil Co., 499 U.S. 244, 248
(1991).
Nonetheless;Congessiis not held to the sarne.standard in relation to explicit
Constitutional authority when legislating extraterritorially as it is in the enactment of domestic
legislation. This is because extraterritorial legislation does not possess the same capacity to .
encroach. upon governMental powers reserved to the states. See United States v. Curtiss-Wright
• •ExnortCoro., 299 U.S. 304, 315 (1936).
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In this respect, bases for the-enactment of extraterritorial legislation include:,
(a) An incident of the Congressional authority to "Define and •
punish offenses against the law of nations:" U.S . COnst. Art. 1 § 8,
c1.8.
(b) An incident of Congressional authority to implement treaties under the
•"necessary and proper clause" of Article I §.8.
D. Determining Whether a Statute Is 'Intended By Congress To Be Extraterritorial
. AlthOugh•under both intemational law and the Constitution, Congress possesses the
.authority.to legislate extraterritorially, it is necessary to inquire. whether; in the cOn6ext • Of a
particular statute, it has, in fact, done so. First, consider the language of the statute. Does it
expressly address its jurisdictional scope? . Statutes that contain formulas specifically defining the'
Scope of jurisdiction include: foreign murder of a U.S. national (18 U.S.C. § -1119); war crimes
(18 U.S.C. § 2441); murder of or assault upon a U.S. national abroad for the purpose of coercion,
intimidationor retaliation aS certified by the Attorney General (18 U.S.C. § 2:332); bombing".
public places or facilities (18 U.S.C. § 2332f (b));.and the commission of certain felony offenses
by persons accompanying the armed. forces overseas. 18 U.S.C. § 3261. •
. • .
-36ine•fedefal statutes are expressl•confined in their, application to .the "specialriiaritime •
• and territorial jurisdiction of thetnited States," e.g., murder under 18.U.S..C. ,1111:7flie 7PIiiiSe••'•
"special maritime and territorial jurisdiction" is definedin 18 U.S.C..§7. It includes federal.
enclaves,•such as national parks and military installations; ,territorial waters; U.S. flagvessels;
•: U:S. owned aircraft (while flying in U.S. airspace, or over international waters, etc.).. It also ,
includes some territory outside the United States,, such as places not subject to the jurisdiCtion of
any nation with respect to crimes by or against 1J.S..nationals (see . 13 U.S.C. § 7(7));ancl.:15,S. •
• 'diplomatic premises. (but only when the victim or the offender is a U.S. national). See 18. U.S.C.
,§ 7 (9). Thus, in some instances, an Offense committed .w it„hin the."special territorial jurisdiction••
• • of the United States" may actually involve an extraterritorial crime. •
.
• • "Special aircraft jurisdiction" is another jurisdictional term 'of art that governs aircraft
piracy-(49U.S.C. § 46502) and statute proscribing the destruction of an aircraff(18 U.S.0 : •§ 32). •
The term is defined. in 49 U.S..C. § 46501(2). To be cogiiiable under the air piracy statute; an
. offense must be Committed while the aircraft is "in flight," a termof art defined in•49 U.S.C. §
46501(1):
E. • Jurisdictional Provisions. Common to Statutes Implementing Treaties
The United States is party to .a number of multilateral agreements designedto Combat
terrorism which contain provisions requiring signatories: .(1) to criminalize the proscribed .
'conduct; and (2) to either extradite or prosecute•persons present within their territory who are
. .
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believed to have,committed prohibited acts. Statutes implementing such treaties therefore
authorize prosecution of any 'offender by virtue of his mere presence in the UnitedStates. •
•§ 1203) is an example of an offense upon which extraterritorial . Hostage taking (18
jurisdiction can be predicated solely upon , the. defendant's being "thereafter found" in the United
'States.. The phrase "thereafter found"has been held to include the defendant's forcible rendition
for the purpose 'of standing trial for another offenSe (see Yunis, 924 F: 2d at 1090 ) or for the very
•crime to which the ` ;`thereafter found" provision applies. See United States v. Rezaq, 134 F.3d
•1121 (D.C. Cir. 1998) ("thereafter found"•.requirement permits prosecution for aircraft piracy. ,
even in cases Where defendant is forcibly returned to the United States to stand trial only that -
offense). We have enumerated a number of multilateral agreements designed to combat
terrorism, the implementing federal legislation; and jurisdictional provisions of such legislation
as an addendum to this monograph.
F. • What If theStatute Is Silent With Respect to Its Extraterritorial Application?
' 1. The presumption of territoriality
Crimes against individuals or their property, like assaults, murder, burglary, larceny.
robbery and other offenses which affect the peace and good order of the community are,
presumptively territorial unless Congress says differently. United States v. Bowman, 260 U.S..
94 , 98 (1922).
2. The exceptibn that all but swallows the rule. •
"[T]he same rule of interpretation Shouldnotbe applied to criminal statutes which are, as
a class, not logically dependant upon their locality for the gOvernrnent's jurisdiction, but are. •
.enacted because-of the right of the government to ..defend itself against obstruction or fraud
wherever perpetrated,.espeCially if committed by its own' citizens, officer's or agents . . .
[T]o limit their locus to the strictly territorial jurisdiction would be to . geatly curtail the scope
and usefulne•ss of the statute and leave open alarge immunity for frauds as easily committed.by -
citizens:on the high seas, and in foreign countries as, at home. In such cases, Congress has not
thought it necessary to make specific provision in the law to include the high seas and foreign
countries, but it may be inferred from•the.nature of the offense." Bowman 260 U.S. at 98 .-99.
3. Finally, in determining whether Congress intended that a'statute apply
outside the borders of the.United States, it is appropriate to take into account the structure of the
statute, its legislative history and, in some instances, the text and negotiating history of the treaty
which the legislation implements. See Sale v. Haitian Ctrs. 'Council, 509 U.S. 155, 174-177
(1993)(examining legislative history of ata:tut., as well as text and history, of the convention it -
implemented, to determine whether "forced repatriation" provisions of the "Immigration and .
Nationality Act were intended to apply extraterritorially). •
4. Example's of offenses with respect to which extraterritoriality may b •e•inferred
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United States v. Benitz, 741 F,2d 1312 . (11 th Cir.1984)(asSault by a. foreign national on a U.
government official); fraud against the government.
5. Offenses that are ancillary to extraterritorial crime
Attempts, accessory, after the fact, conspiracy; use of a firearm during and in relation to a
crime of violence (18 U.S.C. § 924(c), have been held to assume the territorial character of the
base offense. See Yousef, 327 F.3d at 87-88 (collecting cases); United•States v. Lindh, 212
Supp. 2d 541, 580 (E.D.Va. 2002)(an extraterritorial violation of 18 § 2339B is a crime of
•• violence to which a Section 9.24(c) use of a firearms count can attach); see also. United States V.
Khan, 2004 WL 406338 (E.D.V.A., March 4, 2004)-at -*28; United States v. Goba, 24:0 F. Supp.
. 2d 242,249 (W.D. NAT. 2003).
G. Prohibitions Against "Providing Material Support"
18 U.S.C. §§ 2339A and 233.9B respectively prohibit providing "material support or
resources" knowing or intending that they are to be used in preparation for or carrying out one of
a number of enumerated terrorist crimes' (§ 2339A) or providing "material support or resources"
. to a "Foreign Terrorist Organization" ("FTO") (§ 2339B). Both statutes embrace attemptS•and.
conspiracies as well. Since the events of September"-1.1, 2001, these two statutes have become , .
mainstays theDepartment's war on terrorism. As of March 15,2004; over 50 persons have
' been charged With viblations in 19 diffel•nfilistricTS. The two "StatutEs contain sore What V "
• different jurisdictional provisions that illustiate the principles in the preceding subsection
addressing ancillary jurisdiction'In addition, Section 2339C, which we discuss iii•Connection
with the Terrorist-Financing Convention, infra,. prohibits providing or collecting funds to foster. .
acts of terrorism.
1. 'Section 2339A.
As originally enacted, 18 U.S.C: 2339A prohibited a person "within theUnited States
from providing material suppOrt or resources knowing that it-would be used for the commission
of a terrorist crime. See Pub. L. 103-322 § 120005, 103 Stat. 2022 (1994). As Part of the USA.
PATRIOT Act, however, the jurisdictional limitation, "within the United States,",was deleted.
Pub. L. 107-56, §805-, 115 Stat. 377 (2001). The plain implicatiOn of this amendment is to
expand the jurisdictional scope of the statute to extraterritorial. acts of providing material support.
Thus, it would appear that such offenses are now akin to "ancillary offenses," i.e., that their .
- that of the crime that the "material support or resources" is jurisdictional scope coresp onds to
intended to facilitate. Consequently, after October 26, •001, where the contemplated terrorism
— offense peiiuits the exercise of extraterritorial jurisdiction, so also•would a § 233 130,1-vieln:tion
• , designed or intended to facilitate it. Prior to that date, the prohibited conduct must have occurred
.."within the United States" to constitute a violation of § 2339A:
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• 2. Section23.39B. •
. .
• In contrast to § 2339A, persons embraced by the prohibition against providing material
' support or resources to FTOs are limited to those "within the United States Or subject to the
jurisdiction of the United States." Subsection (d) further states that ."[tiliere is extraterritorial .
Federal jurisdiction over an offense under this section = a provision that We believe explicates the
phrase "or subject to the jurisdiction of the United States" to make clear that it is meant to -
convey an extraterritorial application: Thus, anyone who within the U.S. provides material
:support of resources to an FTO is subjec.t'to prosecution.' Likewise, persons' outside the - U.S.
.' who provide such 'material support to an FTO are subject to prosecution as long as they are U.S.
nationals.' • • • • •
Some have suggested that the •"pro tective Principle" -would enable the United S tates to
. assert extraterritorial jurisdiction under § 2339B if the subject's conduct threatened United States -
interests abroad. Such reasoning, if adopted, would transfoiiii Section :2339B' into a "universal
jurisdiction." statut•because the target's providing material support to an FTO (which by •
•definition involves a threat to United States national security) could always be said to threaten
the United States. This Would•ppear to be contrary to the intent of Congress - as reflected.by its
jurisdictional language. Accordingly; our best guidance at this time is that purely foreign
conduct by foreign people would no t be covered under . Section 2339B.
•
---- Nonetheless, we believetiat; when any petsbn proper3:y charged.With 0.5s'yid."115.-g .
Material support to an FTO, under the theory of ancillary jurisdiction, any person n,vho,Conspires
in the commission of that offense, is also subject to prosecution without regard to the plane of his
activity or.his nationality •
3..Section 2339C
• •
Ak noted earlier, § 2999C, which became effective on June 25, 2002, in the wake of the •
.United States' accession to the Terrorist Financing Convention, prohibits fund-raising or
rnonetary.contributions to those bent upon undertaking activities that violate one of a number df..,
. international terrorism conventions. It also reaches. contributions with IcnoWledge that the -funds •
• are to. -be used to carry out acts intended to cause death or bodily harm for the purpose of
intimidating a population or compelling a government. The role of § 2339C will likely be
We note that, in contrast to Section 2339A, the USA PATRIOT Act did not affect the'
jurisdictional predicates for violationS.of Section 2 .339B._ Thus, for jurisdictional purposes, it is
of no. cohkquence whether thealleged•misconduct predated or follciwed.the October 26, 2001.
enactment. of that statute.
The scope of the jurisdictional predicate - subject to the jurisdiction of the United
States - is not settled. At the•least, the term embraces U.S.1,nationals and corporations. It is not
certain whether it includes resident aliens as well.
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confined to those rare instances where the jurisdictional provisions of §§ 2339A and.'2339B do
not reach a persOn located abroad btit against whom a U.S. prosecution is appropriate. Note the.
. multiple jurisdictional predicates enumerated in § 2339C(b) and summarized inOur compilation
•,of treaty-implementing jurisdictional provision's: One of them permits the assertion of • •
extraterritorial jurisdiction, over an offense on the basis of the defendant's presence in the United.
States, alone. As a matter of due process, however, the application.of this Section shoUld be
confined to instances where the United States has some interest in prosecuting the defendant
recognized by. international law. To date, nd one has been charged with a violation of this
Section. , •
A. Constitutional Constraints
'U.S. Const. Art: III, § 2, cl. 3 provides:
All criminal trialS,.except in cases of impeachment] shall be held in the State
where such• shall have been committed; but when not committed within any
.State, the trial shall be at such Place or Places as Congress may by laity have •
directed. .
The final phrase ("but w-b.en=hot committed •.' .")has.bden held 'to ',imp-Oseno restritfi631 ":"
as to the place of trial, except that the trial cannot occur until :Congress designates the . place, and
,may occur at any place which shall have been designated." , Cook v. United States, 138 U.S. 157; • .
182 (1891).
B. . Proof Requirements •
. Venue must be established by a preponderance of•the evidence. See United States.v.
Naranjo, 14 •.3d 145-, 146 (2d Cir. 1994). Unlike claims based upon a lack of jurisdiction ;
-er v. Un however, claimis of improper venue are waived if not raised prior to trial. Se.Sinta. ed
• " 'States 380 -U.S. 24 (1965).. Your charging papei -s should allege the basis for venue in the
particular district,
C. , Venue Statutes for Territorial Offenses
1. In some limited circumstances, Congress has specifically designated the
'district (within the constitutional limitation) in which venue exists. Some examples o f such
" . offenses include — tiflight
to avoid prosecution (18 §.1073)(district in which original.crime
committed or where defendant was detained) •
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capital .cases (18 U.S.C. § 3235)(county where the offense was committed when
without "great inconvenience")
murder or manslaughter (18 U.S.0:§ 3236)(place where injury inflicted)
2. Venue for territorial offenses where no district is specified by statute - Fed. R.
Crim. P. 18 supplies the general rule: "Unless a statute or these rules permit otherwise, the
government must prosecute an offense in a district where the offense was Committed.'. 18 U.S.C.
§ 3237 is a refinement to the general rule where the offense occurs in more than one district:'
(a) Except as otherwise provided by enactment of Congress, any offense
against the United States begun in one district and completed in another,
or committed in more than one district, may be inquired of and prosecuted
in any district in which such offense was begun; continued, or completed.
Any offense involving the use of the mails, transportation in interstate or foreign commerce, or
'the importation of a'person or an object into the United States is a continuing offense and, except
as otherwise expressly provided by enactment of Congress; may be inquired of and prosecuted in
any district from, through, or into which such commerce, mail matter; or imported objector
person moves. •
See United StatesP.odri^uez-Nloren^,. ^Z ;1J.S. Z75. (19S9); when t^e;Supreme,Courr*-.,
held that the offense of using o'r carrying a firearm during a predicate crime of.violence ora drug ;
trafficking crime can properly be prosecuted in the district where the predicate offense occurred
even though the using or carrying did not occur in that district. This is because the underlying
crime of violence is an element of the Section 924(c) offense... .
With respect to 'a conspiracy to commit a territorially-based offense, 'venue is proper in
any district in whieh'ain overt act in furtherance of the conspiracy'was committed by any of the
co-conspizators.. . -. The defendant'need not have been present in the district, so long as an
overt act in furtherance of the conspiracy occurred there." United States•v. Naranjo, 14 F.3.d at
'147. See United States v. Bin Ladin ; .91 F. Supp. 2d 600 (S.D.N.Y., 2000)(venue in Southern .
District of New York for conspiracy to bomb U.S. Embassies in Africa proper where overt 'acts _in
furtherance of the conspiracy occurred there)..
The "continuing offense" principal can include the receipt of phone calls and - tive .
believe — e-mail messages in the district where the sender or recipient is located.
United States v. Kim, 246 F.3d 186, 191-193 (2d_ Cir. 2001) (offense of wire fraud is committed
in any ,district in which transmission is sent.or received, even if defendant making the •
transmissions never enters the country).
Venue determinations are offense specific. 1vVhere more than one count is charged in an'.
indictment, venue must be established with respect to each count. See United States v, Beech•
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Nut Nutrition Coro., 871 F.2d.1181, 11.88 (2d Cir. 1989). This principle also governs...
substantive crimes and conspiracy, even if the substantive offense is in furtherance-of the
conspiracy.. Thus, where no element of that offense is committed in the district where the
underlying conspiracy occurred, it cannot be joined with the conspiracy for trial: See United .
States v. Corona, 34 F.3d 8.76, 879-880 .(9 th Cir. 1994). • •
D. Venue for Extraterritorial Offenses •
18 U.S.C. § 3238 provides:
The trial of all offenses begun or committed upon the high seas, or. elsewhere out
.of the jurisdiction of any particular State or district, shall:be in•the district in .. .
which the offender, or any one of two or more joint offenders, is arrested or first "
brought; but if such offender or offenders are not so arrested or brought in any
district, an indictment or information may be filed in the distribt of the last known
residence of the_offender or any one of two or more joint offenders, if no.such • .
residence is known, the indictment or information may be filed in the District of
Columbia. "
- •
.SeVeral courts _have held or suggested that an offense May be . extraterritorial under • .
Section 3.238 when."begun"on the high seas or in aforeig' icountry even though subsequent overt.
-acts or.elefrients.of,the Gffen5e.occur,within. the United States.:: See-ITnited-States-v_
P.2d 11.83, 1185 (5 th Cir. 1919)("that venue may also be apPropriate:in another district will not".. .
divest venue properly eStabliShed under § 3238"7; United States v: Bin Ladin g 91 F. Supp. 2d at
613 n.23 (Collecting cases): But see United States v. Gilboe, 684 F. 2d 235, 239 (2d Cir., •
1982)(dicta). Thus:in circuits that follow this rule, prosecutors may have ameasiire of latitude
in determining•whether to. allege:veiaue .With respect to an offense begun overseas but involving •
the commission of subsequent elements in,U:S. territory on the basis 'of Section.3237 (pertaining
to territorial crimes), or, alternatively, under Section 3238 (pertaining to extraterritorial9ffen8'es).
. .
E. Options for Determining Venue For An Extraterritorial Offense Under § 3238 .
..•
: 1. Indict while defendant is still overseas - you may wish to do so to lock,ip •
venue with respect to a particular offense, to stop the running of the statute of limitations, or as a
prerequisite to extradition. If you choose to indict while the defendant is still abroad, the
indictment must be in the district of the defendant's la2st known residence (or the last known
'residence, of any indicted co-defendant). :Where there is no such district (or former residence
cannot be•ascertained), venue lies in the District of Columbia.
•
2. Alternatively, the government can apprehend the defendant and return him
to the United States without first indicting him. In such cases, venue lies .where the defendant
first enters the TJnited•States. Where this option is to be employed, the phrase "first brought"
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means that the defendant must be returned in a custodial Status. See United States v. Liang..,, 224
F•.3d 1057, 1060 (9th Cir. 2000). •
3. In addition, under the "thereafter found" option, venue is triggered by ••
any incidental stop in the U.S..regardleSs of whether it is the. intended destination of the flight
returning the defendant from overseas. See Chandler v. United States, 171 F.2d 921, 933 (1" Cir.
1948)(brief layover triggers `.`first brought" venue). Thus, an en-route refueling stop can
.•effectively thwart a plan to returrl•the defendant to a particular district for indictment and trial...
.4.' The venue by "arrest" option under Section 3238 is offenSe specific. The term'
"arrested" applies to the district in which . the defendant, is first restrained in connection with the
particular offense charged: Thus., if a defendant's case has been venued in a particular district,
and the defendant is present in that district awaiting trial; he may be "arrested" there for an
extraterritorial offense, with the result that venue for that offense will be in the same district as
that for the•previously charged crime. See United' States V; Wharto n, 320 F.3d 526, 536-37 (5 th
Cir. 203); United States V. Catino, 735 F.2d 718, 724 (Cir.1984).
Venue Analysis
. Is the offense territorial or extraterritorial? If the former, in what district did the, :
offense occur or did it occur in several disticts? •, •
If territorial, have we an option as to which of several districts to bring the
charges? If so, is one preferable - to others?'
If extraterritorial, do we want .or,n eed,.for some reason, to indict:prior. to ,
defendant's return?
If we wish to file a. pre-return indictment, what is the appropriate. district? .
Do we have reasons for declining to seek a pre-return indictment? If so,:
do. we want to effect the defendant's return to a particular district? '
• •
G. Venue- For Criminal Complaints
• You may need a criminal 'complaint to obtain the extradition of a defendant. Fed. R.
Crim. P. 3 & 4 do not particularize the district in which a complaint can be soug_bt and an arrest
warrant obtained for an extraterritorial offenses'when an indictment is not first renamed. You
should. ordinarily stel•prcaraess in the district where an indictment is likely to be brought, but we
3 We have attached to this outline a "flow chart" which should assist in. the analysis of -
determining the most appropriate venue for prosecution.
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• believe that any U.S. magistrate judge can issue.a warrant for a extraterritorial offense without
regard to the location where the indictment is likely to be returned. '
AUTHORITY TO INVESTIGATE, DETAIN, AiNi.p RE m oVE
A. Investigative Jurisdiction of the FBI
is worldwide with respect to any federal offense. However, when exercised on the territory of
another sovereign, such authority is subject to intemational.law, statutory (e.9,, 22 U.S.C. §
3927(b)) and regulatory constraints. See Attorney General Guidelines on the Develo -o-ment and
Operation of FBI Criminal Informants In Extraterritorial Jurisdictions, (Jan.' 15, 1993)(Secret).
•
B. " Authority to Arrest
— is. also worldwide. However, any such exercise of United States law enforcement authority
must ordinarily be reconciled with the sovereignty of the host or asylum nation. Consequently,
such initiatives must be,closely coordinated with the State Department.
.1. Fed. R. Crim. P: 4(c)(2)'
The execution of an arrest ),varrant overseas must be .pursuant to 'a federal statute authorizing ..•
such .an arrest. Inyestigators coh,.however,-.rely upon probable cause-where ad:warrant Oat -issue.'
• • •
.2. Fed. R. Crim. P. 41(b)(3) •
Rule 14(b)(3) authorizes a magistrate to issue an arrest warrant with effect outside his district in
international or domestic terrorism cases. The language of the rule is not confined to the
. issuance of process.within the territory of the United States.. •
C. Return of An Offender From Overseas For-the Purpose of Prosecution •
1. Extradition •involves the return of an offender from an "a_syluin state" to the
• 'United States pursuant to and in accordance with an international agreement with the asylum
state. . . . . .
. . • 2, Rendition involves the taking of a defendant into custody overseas and his
return to the United States for trial in a manner outside the fratnework of an extradition treaty.
The defendant's rendition can be with or without the cooperation or acquiescence of the asylum
state. Theloarier.,,commonly is termed `.`ordina,ty rendition;" the latter is referred to as
"extraordinary rendition."
•
3. Expulsion invorves the asylum state simply removing the defendant from its •
territory, often by placing him on a flight or escorting him to its territorial border, U.S. officials
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. • .
may arrange with the asylum state to assume custody over the defendant upon hiS removal. See
United States v. Lovato, 520 F.2d 1270, 1271 (9t h -Cir. 1975).
.•
D. Principles Governing, Custody of an Extraterritorial Offender.
• 1...The holdings in Ker v. Illinois, 119' U.S. 436 (1886) and Frisbie
342 U.S. 519 (1952)'forin the foundation .° f analysis. Under those decisions, courts will not
ordinarily inquire as to the manner in which an individual was brought . before it for trial: The
power of a court to : try an individual for a crime is not impaired by the fact that he/she was
brought before the court by forcible abduction.
. -
2. In.United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme .
Court held that,. even where an extradition treaty is in effect and .would otherwise apply, a
defendant's rendition to the United States for trial without compliance with the terms Of an ,
extradition treaty•does not preclude his subsequent prosecution,'untess it violates a prOvision of
the extradition treaty that expressly prohibits the. taking of a defendant into custody by means
outside its terms. •
.3. Exceptions to the Ker/Frisbie doctrine
(1) United. States v. Toscanino, 500.F.2d 267 (2d Cir. 1974) -the mode of • "
rendition Cann.ot•he effected-by means that •shocks-the-.Conscieno&-such-as torture
court, however, has ever actually dismissed an indictment on such grounds.. Sze e.a., Yunis 924 • .
-F.24 at 1092.-93. (rejecting claim based upon ToscaninO).
(ii) under Alvarez-Machin, the . renditiOn cannot violate an express limitation .
contained in•an extradition treaty betWeen. the U.S. and the asylum nation:. If it does, the subject
can likely assert the bar as the basis for dismissal of the pending charge.
• (iii) NSDD 77 (Jan. 19, 1993) —.contains Presidential public policy . guidelines
governing forcible renditions. The NSDD is classified at the SECRET level. •
E. Extradition and its Limitations •
1. The applicable extradition treaty may preclude extradition because the offense
is not.extraditable, or the treaty does not permitextradition of the asylum state's own national; • .
• •
2. The "rule of speciality" precludes the defendant's trial for offenses other than
those specified in the extradition request Sand with respect..to: which "the asylum state.nuthacizei
extradition. • Althoughindividual defendants can assert the rule of speciality as a bar to
prosecution, the limitation can be waived by the asylum state. In the event that it 'grants such a
waiver, the trial on the additional offence•can proceed over the defendant's objection. See e.g:.
United States -v. Najohn, 785 F.2d 1420, 1422 (9-th air.. 1986)(the protection afforded by the rule
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of specialty "exists only to the extent that the surrendering country wishes . However, the
person extradited may raise whatever objectiOns the rendering. country may have. f').
3. The, extradition treaty may contain a "non 'bis in idem" provision preeluding a
yroseeutionby the requesting state that replicates a preceding prosecution by the asylurii state.
If; however, the defendant's custody is not acquired pursuant to such a treaty„ a non bis in ideini .
limitation. in an extradition treaty between the asylum state and the United States is inapplicable
and cannot be asserted by the defendant as a bar to prosecution. See , e:a. United'S tates v.
Duarte-Acero,.208 F.3d 1282, 1283 : n. 2 (11'' Cir. 2000)(rejecting motion based upon non bis in
idem clause in extradition treaty).
• 4. Extradition treaties ordinarily require an indictment in the requesting state as a
predicate to an extradition request. This exemplifies one of the reasons whyyou may need to
obtain an indictment against the defendant before his return to the United States.
- 5. You must coordinate any requeSt for extradition with the Criminal Division's -
Office of International, Affairs (202) 514-0000.
•
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THE EXTRATERRITORIAL APPLICATION OF PRO CEDURAL RIGHTS •
I. THE FOURTH AMENDMENT
A. Extraterritoriality As To U.S. Nationals and •Non-nationals
A
•In United States v. Verdugo,.494 U.S. 259 (1990), the Supreme Court held- that,as the
protection's provided by the Fourth Ainendment belong to "the people," they do not extend to
non-U.S. nationals who are the subjects of searches and seizures outside the territory of the
United States. It is not Clear from this decision•whether the Amendment protects resident aliens
when outside of the United States. 8e'e United States. v. Barona, 56 F.3d 1087, 1094 (9 th Cir. .
1995)(noting that the issue had not been resolved). •
• Extraterritorial Searches and Seizures of U.S. Persons
1. 'TO what intrusions do the requirements of the Amendment apply?
(i) The Fourth Amendment does not apply to intrusions conducted
. exclusively by foreign law enforcement authorities. Evidence resulting frort suc•intrusionS is.
Admissible even when the intrusion is triggered by information supplied by U.S.law.enforcement
authorities. See United States v. Barona, 56 F.3d 1087, 1097-(9 th Cir. 1995)- •
(ii) • Where the. intrusion is made jointly by U.S. and •oreign law •
• enforcement authorities, or made at the behest of or With the involvement of U:S. authorities,
what is known as the "joint venture" rule applies. In such cases, the reasonableness requirerrient:C
of the -Fourth. Amendment governs the intrusion. See United States v. Barona, 56 F.3d at 1094- • •
96; United States Y. Rosenthal, 79.3 F.2d 1214, 1231 (11th Cir. •1986):
2. : Options for- satisfying the reasonableness requirement Where the intrusion is
• made by U.S. law enforcement authorities or the "joint venture" rule applies: • .
(i) Fed. R. Crim .P. 41(b)(3) A magistrate judge - in an investigation of,domestic
terrorism or international terrorism.(as defined in 18 U.S.C. 2331) - having authority in any •
district in•which activities relating to the terrorism may have occurred, may issue. a warrant for a
person or property within or outside that district."
Comply With the applicable foreign law. ,Where the law of the foreigjanation
is followed, the reasonableness requirement is. ordinarily.satisfied. See Barona, 56 F.3d at 1093-
96
(iii) Manual for Courts-Martial, (1995,. ed.) & Military Rule - of Evidence 315.- .
With respect to persons or property within U.S. military control, or -persons subject to military
law or the law of war, the commander with authority oyer the place or person to be searched, or a
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•Military judge or magistrate has authority to authorize probable cause searches. This provision
may prove useful in instances ""where the local courts are not operating, and the place to be
searched is within a U.S. military enclave or otherwise under U.S. military control.
, (iv) Obtain subject's consent to a search.
(v) Conduct a probable cause search without judicial: process —use as a last ditch
expedient.
(vi) Seek from•the Attorney General an orderpursuant to his . foreign intelligence .
gathering authority to conduct a foreigissearch, after •consultation With appropriate authorities; ,
including the Office of Intelligence•Policy and Review. •
II. THE FIFTH AMENDMENT AND THE,REQUIREiVrENTS OF MIRANDA Y.
ARIZONA
A. 'Applicability Overseas
. : The Verdugzo decision distinguished the Fourth Amendment right against unreasonable.
searches and seizures from the Fifth Amendment right against self-incrimination on the ground '
that the latter is a trial right. Thus, if you anticipate any .likehhood that you will.eventu.ally Want • •
•-- - to introduce into--evidence•a-staternent ;obtained outside-the United States-,-.youshoUld- adhere to-7-
the Fifth Amendment's requirements, including those articulated in Miranda V. Arizona. • :
B. -Voluntariness
. .
. 1. .The test goverhing•voluntariness is whether "under the totality of the -
cireumstances7 the defendant's will•was overborne. To vitiate a confession as involuntary, the
coercion must be by 'a: "state : actor:" See Colorado V. Connelly, 479 U.S. 157,(1986). Thus, a
defendant's psychological vulnerability or lack of familiarity with U.S. judicial procedures is'.
insufficient, of itself; to vitiate a confession. on voluntariness grounds. • . •
• Admissibility of confessiOns coerced by foreign authorities. See United States
v. Wolf, 813 F.2d 970, 973 n. 3 (9 th Cir. 1987)(suggesting that, under Connelly, suppression not
- required:when involuntarily obtained by foreign police but declining to decide the issue). But see
United States v. Yousef, 327 F.3d 56, 146 (2d Cir. 2003) (exclusionary rule may apply to a '
foreign confession when obtained under circumstances that "shock the judicial conscience").
Bottom line - assume that a. coerced foreign confession is probably still inadmissible at a U.S.
• trial and presents a potential, taint problem to subse,quent..confessions. • „.
..3. Dealing with the possibility of an antecedent coerced confession. You must : •
attenuate the taint. See Brown v. Illinois, 422 U.S.-590, 603(1975): Actions that-Will attenuate
the taint: (1)• lapse of time; (2) adequate warnings; (3) non-use during questioning of evidence
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.obtained as the result of the "coerced' confession; (4) changed conditions of questioning and.
- different interrogators. • • .
• C. . Miranda Requirements
.1. When are warnings required - is the subject "M custody?" Custody is
determined by reference to the objective circumstances of the situation...from the perspective of a
.reasonable person•in the suspect's position. See e. Cr Berkemer v. McCarty, 468 U.S.• 420,.442
• (1984). Detention by foreigi Law enforcement authorities under such circumstances constitutes
•"Custody.' •
2. What warnings are required in an extraterritorial interrogation Context?
See United States v.. Bin Ladin,.321F.:•Supp. 2d 168 (S.D.N.Y. 2001).
• 'relies upon the Verduao• trial right distinction and is therefore triggered by the
possibility Of the use of a confession at a U.S. judicial proceeding regardless of
. •
• subject's nationality; •
requires the giving of Miranda warnings as an adjunct to that right and as a .
•prerequisite trithe use of a statement in a U.S.. judicial proceeding; .
. .
- :"."-adal..2SSes .,thL need tO•iiiddify.fi -ght t..6-coilfis0 'adviser:bent iira
when defendant is inforeigi-CUstody; ,
•
"because you are not input custody and we are not in the.United States, we
cannot ensure that you Will be permitted access to a lawyer, or have one appointed
for you, before or during any questioning. HoWever, if you want a lawyer, we will
ask the foreigilauthorities to permit access.. to a lawyer or to appoint one for you.
If foreign authOrities agree, then you can talk to that laWYer to get advice
before we ask you any questions and you can have that lawyer with your during
questioning. •I f you•Nmant a lawyer, but the foreign authorities do no tpermit access
at. this time to a lawyer or will not now appoint one for you, then you still have the
right not to.speak to us at any time without a lawyer present." •
. 3. Miranda warnings are also required .When the interrogation LS a joint venture or
when foreign interrogators are acting as our agents in:conducting it. See Yousef, 327 F.3d at
146. United States v. Bagaric, 706 F.2d 42, 69 (2d Cir..1983), abrOgated on Other grounds, 510
U.S. 249 (1994); United States v. HF,L1pr, A') 5 FPri 594;599 Cir. 19R0). They are no,
-however, required when the interrogation is-conducted exclusively bY•feteign•law enforcement
authorities for their own purposes. YOusef. 327 T3d. at 145:146,-
•
4. The preciSe contours of the "jo,int venture" doctrine are not clearly defined,
• See Yousef, 327 F.3d at 14.6. It is likely that the doctrine will apply when U.S. law enforcement
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authorities:provide questions to the foreign interrogators, the interrogation focuses, upon '•
.violations of U.S. law.or where U.S: law 'enforcement officials are overtly present during
•questioning. See United States v. Emetv..591 F.2d 1266, 1267 (9 th Cir: 1978). (joint venture
:doctrine applied where DEA agent. coordinated foreign arrest and was present during•questioning
by -foreign police); but see United States v. Nag,elberg, 434 F.2d 585, 587 n.1.(2d
,1970)(dicta)(11/Iirarida . rule has no application where arrest and interrogation focuied upon'. •
violations of Canadian law despite presence of U.S. law enforcement offider). It is less likely
that the doctrine be applied where the questioning is in furtherance of legitimate law .
enforcement activity by the foreign state, even. where the defendant's apprehension is ,effected by
a tip from U.S. authorities, we have solicited foreign •assistance, or whei -e there is close • .
international dooperation. See BaciariC, 706 F.2d at 69. It is also less likely that the doctrine .will
apply were a U.S. officer's presence is unobserved, or the officer simply furnishes ministerial.
support such as acting as an interpreter. See United States v: Trenary, 473 F2d 680, 682 (9 th
.1983)(inVolvement of U.S. oficer as interpreter during interogation by foreiTi•laN,v enforcement .
• • . authorities).
5 : In some instances, U.S. military or intelligence authorities may have
questioned a suspect following his/her apprehension overseas forpurelyforce. protection or • . .
intelligence gathering purposes., Itis likely that such questioning will not be. preceded by .
Miranda warnings and, as 'a consequence, you should assume that the fruitsof such interrogation. •
•willhe inadmissible: But see New York •v. Quarles ., 467 -.U.S.•649, 65-5-56(1984)(unwarned ':•. •
p lice questioning -concenaing ..iocatioa of a gun: reasonably fatiptedby pub lid. safety atd-diotfit6t '7-
• violate Miranda andthefruits not subject to exclusion). You should similarly assume that such •
.antecedent Unwarned questioning will coristibite .a basis.for.arguing Ehat any subsequently • . •
•
• obtained statement was tainted. Accordingly, where such unwarnedquestioning May haVe
occurred, you should take the step's recommended in para. B3, supra, to attenuate any
consequential taint. See also Oregon v. Elstad, 470 U.S..298, 318 (1985)(where initial .
confession inadmissible because unwarned,.subsequ.ent confession is admissible if preced•ed•. .b..y '.
'proper Miranda warnings). •
6. As a prudential matter, you should not involve U.S. intelligence personnel in . '
the interrogation of subjects when there is any possibility that•admissions derived from the
questioning will be introduced into evidence. The attempted. introduction of the statements may
require the intelligence operative's appearanCe as a witness to addreSs the circumstances under -
which they were obtained and thereby jeOpardize his or her position.
. IIT. THE.SiXTH. ,.k.MENPME NT RIGHT TO -COUNS4
"(Title right-to:counsel. granted by74 ,he.•Sixth .. Amendment means atleastlhat-Etperson •
is entitled. to the help of a lawyer at or after the tirrie that judiCial proceedings have been initiated
against him .. ." Kirby v. Illinois, 406. U.S. 682, 689 (1972). (plurality decision). .'
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A. Time of Attachment-
Sixth Amendment counsel rights attach at. or after the commencement of iprosecution or
the initiation of Iciversarial judicial proceedings "whether byway of formal eharge,.preliminary
hearing, indictment; information or arraignment." Kirby v. Illinois, 406 . U.S. at 689..The filing
of a criminal complaint and the issuance of an . arrest warrant, how. eVer; do not constitute the •
initiation of adversarial criminal proceedings for purposes of the Sixth Amendment. See Von .
Kahl v. United States, 242 F.3d 783, 789 (8 th Cir. 2001). . .
•
B. -Applicability Overseas
The Sixth Amendment right to: counsel attaches to any person who has been forthally
charged. Thus, when seeking to question an indicted person overseas, the Sixth Amendment
right to counsel should b•scrupulously honored with respect to offenses charged in the .
indictment. Of course, incases where an overseas subject is in custody.,. adherence to the "right
to counsel" requirements of:Miranda will ordinarily.satisfy the SixthAmendment as well.
Consequences Of Attachment
1. The Sixth Amendment right to counsel applies to all critical stages Of the
-prosecution, triclUding questioning eitheily`TalW enforcement ailtho— -eesi.15rperson acting Oa
their behalf.
. • .2. • T he government cannot use as direct.evidence at trial incriminating statements
deliberately elicited from the accused without the presence. or the waiver .of counsel. This i• S. •
separate and distinct test from the question of whether the defendant is "in custody" for pUrposes :
of the Fifth Amendment and ancilary righto counsel requirementS o EMiranda v. Arizona,.
See Fellers V. United State's, 124 S.Ct. 1019, 1022-23. (2004). The "deliberately elicited" test
embraces surreptitious means of questioning by any person acting. on behalf.o f the government.
See Brewer v. Williams, 43.0 U.S. 387,.398 (1977);.Massiah v. United 'States, 377 U.S. 201, 206
-(1964).
.
3. The Sixth Amendment right to counsel also applies to post-indictment lineups.
See United States V. Wade,' 388 U.S, 218 (1967). 'Even if the right is violated, however, i.e., a •
.lineup is.cqnducted without the presence of counsel, the typical remedy is the suppression of the
lineup identification; the observer can make an in-court identification if such is independently
reliable.
•nnn• • •
C. • The Sixth Amendment Right To Counsel Is "Offense Specific'
Unlike the Fifth Amendment right to the presence of arLattomey during a custodial •
interrogation secured by Miranda, the Sixth Amendment right to Counsel is "offense specific."
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Thus, even where a., defendant is the subject of formalcharges with respect to one offense, law •
enforcement authorities can interrogate him without the presence of counsel'cOnceming
uncharged offenses. See McNeil v. Wisconsin, 501 U.S. 171 (1991). The DIOckburger test
governs the question whether an Offense not specifically-alleged in . the indictment etc., is an
"uncharged" offense for purposes of the attachment of the Sixth,.Amendment right to counsel. . .
D. Ethical Constraints In Ouestioninz Represented Persons • •
Even when the Sixth Amendment right to counsel has not yet attached, state rUleS of •
professional responsibility,. modeled upon American Bar Association (ABA) Model Rule of •
Professional:Conduct 4:2, may preclude contact with represented persons•by an attorney for the
.• government or a person acting on the attorney's behalf!' Such rules govern the actions of federal .
'prosecutors. Se: the "McDade-Murtha Amendment," 28 U.S.C. § .530B. On March .12, 204,
the Department's Professional Responsibility Advisory Office (PRAO) issued an opinion
addressing the application to Department of Justice attorneys of state bar "no contact" rules
modeled upon ABA Rule 4.2 in the context of foreign interrogations. The inquiry that triggered .
the opinion concerned situations where such a person is in the'custody of a foreign government, "
.• and the prospective questioning by U.S. authorities involves a matter for which the person has'
not yet been formally:charged. in-the United States. PRAO concluded that"preindictrnentf • • .
• -interrogation of a person in the custody of a foreign government would fall within the 'authorized .
.. by law' exception to - Rule 4.2 and therefore would not-constitute a violation of the
, .Department attorneys' obligations- under the-relevant . version trfR,ule Additional Westitifi'S
you may have.with respect to the-application of 28 U.S:C. § -530B and state bar -Biles to . .
-extraterritorial investigations .should be addressed tb your ethics counselor Or to the PRAO k(202)
-514-0458). •
•
'ABA_ Model„Rule of Professional 'Conduct 4.2 (2000) provides as follows:
in representing a client,. a lawyer shall not communicate about the subject of the
representation by a person the lawyer knows to be represented by another lawyer •
in the matter, unless the lawyer has the consent of the other lawyer or is
authorized to do so-by law or a.court order.
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ADDENDUM I
'International Agreements Authorizing attraterritorial Jurisdiction.
We enumerate below a number of international agreements designed to thwart acts of
terrorism to which the United States is a party. • We.have also identified the.federal legislation.
that implements those agreements, and the bases under which Such legislation authorizes the
.• assertion of jurisdiction over such offenses. Note that, in a number of instances, federal
jurisdiction can vest over a person charged with a•treaty-implementing offense merely by virtue
•of his presence in the U.S. and without regard to the location of the• crime: •
1. Convention for the Suppression of the Unlawful Seizure of Aircraft ("Hague
Convention")(effeCtive Sept. 14,.1971) 5 • ••
•
Implementing•Legislation - 49 U.S.C. 46502(b) (penalizes commission of any
offense embraced by the Hague Convention, such as the seizure or attempted
seizure of an aircraft in flightwhen outside the "special aircraft jurisdiction")..
Jurisdictional Predicates - commission on an aircraft "in flight"'outside of the
• "special aircraft jurisdiction of. the United States" and one of the following: (A) . a
U,S. national was aboard the aircraft; (B) theoffender'i,vas aU.S. national; or•.(C) .-*
::."the. offender is afterw:Ircls:found in the United--States:",' See Rezaq,
1131-32 (the phrase "afterwards found" includes the defendant's forciblereturn):
.2.. Convention On Offenses and Certain Other Acts Committed On Board Aircraft,.
("TokyO Convention") (effective October 1, 1969) . • •
. , . • -
Ininternenting Legislation: - 49 U.S.C. §§ 46502(a) (aircraftpiracy); 46504 . •
(assault upon or interference with aircrew member);•46505 (carrying aNeapOn orexplosive
on an aircraft); 46506 (commission of certain crimes,.such as assault,
aboard an aircraft).
•Jurisdictional Predicates - 49 U.S.C. § 46502 (a) — (A) commission of offense In
the special aircraft jurisdiction of the United States; or (B) attempted commission
in the special aircraft jurisdiction although the aircraft is not "in flight" at the time
. of the attempt, if it would have been'in flight" had the offense been
consummated; 49 U.S.C. §- 46504 — commission of the offense in the "in the
special aircraft jurisdiction of the United States;" 49 U.S.C. § 46505 —
• • •
$ The "effective dates" connote the dates when the United States became a party to the
particular convention. In many instances the effective date of the implementing legislation is
also governed by that date.
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commission or attempted commission of offense on an aircraft in Or intended.for
operation "in air transportation or intrastate air transportation;" 6 49 U.S.C.
§ 46506 --. commission on board• an aircraft in the special aircraft jurisdiction of an
offense punishable if committed in- the. special. maritime and territorial jurisdiction.
. of the U.S. or under the District of Columbia Code.
3'. Convention for the Suppression of Unlawful Acts Against the Safety of Civil
• Aviation, ("Montreal Convention")(effective Feb. 23,. 1973)
Implementing. Legislation - 1.8 § 32 — destruction of aircraft-or aircraft
facilities
-Jurisdictional Predicates - § 32(a).(1) (setting fire to ., damaging, destroying .
aircraft).— any aircraft in special aircraft jurisdiction; or any civil aircraft used in
interstate, overseas or foreign commerce; §. 32(a)(2) (placing destructive device on
"any such aircraft") see subsection (a)(1); § 32(a)(3) (disabling an aircraft
navigation facility) must jeopardize "any .such aircraft in flight" — see. subsection
(a)(1); § 32(a)(4) (setting fire to, damaging, placing destructive device etc. on
appliances, structures, ramps, etc:) — facility must be used in connection with.
aircraft defined iri subsection (a)(1); § 32(a)(5)(acts of violence against•persons on
"any such aircraft" if that' act is likely to endanger "the safety of such aircraft")
the aircraft must be one defined in Subsection.(a)(1); § 32(4)(6).(knowing •
communication of false infolination that endangers safeti .8Yairciait)::;:itie aircraft
must be one defined in subsection (a)(1). Seddon 32(b)'(acts of violence againstany
individual aboard an aircraft registered in a country other than the United
States so as.to endanger its safety, destructiOn of'such aircraft;placing destracti -ve• •
device on such aircraft) — jurisdiction where: (1) a U.S. national is on board (or'
•would have been on board the aircraft), (2)• the offender is a .T.J.S. national, or (3)
"the offender is afterwards found in the'United States." Seellnited States v.
Yousef, 327 F.3d at 88-89 (approving exercise of extraterritorial jurisdiction for •
placing a bomb on a civil aircraft registered in another comity where defendant
was "afterwards found in the United States"). •
4. Protocol for the Suppression of Unlawful Acts of Violence At Airports Serving -
International Civil Aviation SUDO lementary to the Convention for the Suppression '
of Unlawful Acts Against Civil Aviation ("Airport Violence Protocol") (effective .
,NoV.'18, 1994)
Implementing: Legislation - 18 U.S.C. § 37 —prohibits useof any device,
•." ',substance or weapon to 'Perform an act of violence against a person serving in
' 6 The term .`air transportation" is'defined as "foreign air:tran4ortation, interstate air
transportation or the transportation of mail by aircraft." See 49 U.S.C. §40102(5).
21
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civil aviation Or damage to airport facilities such that it endangers or is likely to
endanger safety at that airport.
Jurisdictional Predicates .-' (1) the prohibited activity takes place in the *U.S.; (2)
the prOhibited activity takes place outside the U.S. and (A) the offender is later
found in the U.S.; or (B) an offender or victim is a U.S. national.
Convention for the Prevention and Punishment of Crimes Against Internationally
Protected Persons ("TPP Convention") (effective. Jan. 6, 1985) •
Implementing Legislation -. 18 U.S.C. § 112 (assaults upon or intimidation of .
foreign official, foreign guest or internationally protected person (IPP)); 18 U.S.C.
§ 878 (threats and extortion against .a foreign official, official guest or IPP); 18 •
U.S.C. § 1116 (murder or manslaughter of foreign official, official guest or IPP);
18 U.S.C. § 1201(a)(4) (kidnaping foreign official etc.).
Jurisdictional Predicates - 18 U.S.C. § 112 — jurisdiction where victim is a
foreign official, "official guest," or IPP outside the U.S. if (1) he is an employee
: or agent of the U.S.; (2) the offender is a U.S. national; (3) the offender is —
"afterwards found" in the U.S_ 18 U.S.C. § 878.— as above (see 18.U.S.C. •
§ 878(d)). 18 U.S.C. §.1116 —'as above (see 18 U.S.C. § 1116(c)). 18 U.S.C.
§..1201(a)(4) as_ a.bove (see 18 U.S,c, )
'International Convention Against the Taking of .Hostages ("Hostage-Taking
Convention") (effective Jan. 6, 1985)' •
• Implementing Legislation -'18 U.S.C. § 1203,—hostage taking"
'.Jurisdictional Predicates -18 U.S.C. § 1203(b)•
. lithe offenseis'extraterritOrial,. there is jurisdiction if the offerider or the'victim.is a U.S.;
national; (B) "the offender is found in the United States"; (C) the . government or •
' organization sought to be compelled is the United States. See 18 U.S.C. § 1203(b)(1)...
If the offense occurred inside the United States (and there are no other extraterritorial
aspects to the offense), there is federal jurisdiction where the entity Sought to be
compelled is the United States. See 18 U.S.C. § 1'203(b)(2).
7. Convention on the Protection of Nuclear Materials ("Nuclear Materials
Convention")(effective March 3, .1980)
Implementing Legislation - 18 U.S.C. § 331 —"prohibited transactions •
involving nuclear materials
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Jurisdictional Predicates - (1) commission of the offense. in. the U.S., the
special maritime and territorial jurisdiction, or the special aircraft
jurisdiction; (2) the offender or victim. is (A) a national of the U.S. or (B)
'U.S. corporation; (3) the defendant is thereafter found in the U.S : , even if •
the offense is extraterritorial.
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation ("Maritime Safety Convention") (effective March 6, 1995)
Implementing Legislation -18 § 2280 — prohibits, inter alfa, seizure or
- -exercise of control of a ship by force; acts of violence against a Person on board a
ship, if likely to endanger the vessel, destruction of the vessel or cargo. •
Jurisdictional Predicates - (1) In the case of a "covered ship,'" there is
• :jurisdiction if: (A) the activity is committed (i) against or on board a ship flying .
•• the U.S. flag; (ii) in the United States. ; (iii) by a U.S.• national or a stateless person
who habitually resides in the U.S.; (B) during the commission of such activity, .a .
U.S: national is seized, threatened, injured or killed; or (c) the offender is later
found in the JJ:S. (2),1n the case of a ship navigating or scheduled to navigate.
- solely within the territorial sea or international waters of a countryother thari the '
U.S.,; if the offender is later found in the U.S. after such activity` is committed; and
(3) in the case..of an:y.--v.essel; if the-activity is committe,dircan attempt to compel'
the U.S. to do or abstain from doing any act. :". •
. .
.9. ' .Protocol for the Suppression of Unlawful Acts Against the .Safet -V. 'of Fixed • •
• Platforms Located on the Continental Shelf ("Fixed Platform Protocol") (effective
-March 6, 1995) 3 -
implementing Legislation - 18 U.S.C. § 2281 = prohibits, inter glia, efforts to
• seize control of a fixed platform, commit an act of violence against persons on
board a fixed platform or commit other acts likely to endanger its safety. •
Jurisdictional Predicates - See 18 U.S.C..§ 2231(b). (A) the fixed platform is.
located on the continental shelf of the United States; (B) the platform is located on
the continental shelf of another countrybut the Offense is committed by a U.S. .
7 A "covered ship is one navigating or scheduled to navigate into, through or from waters
,beyond the-territorial sea of a single country or a lateral limit of that country's territorial sea-with
an adjacent country." 18 U.S.C. § 2280(e).
3 A "'fixed platform' means an artificial island, installation or structure permanently
attached to the seabed for the purpose of exploration or exploitation of natural resourcesor for
other economic purposeS." 18 U.S.C. § 2281.(d},Tara. 2. •
'73 '
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national ora stateless person who habitually resides in the U.S.; (C) the victim of
any such activity is a U.S.•ational; (D) the platform is located outside the U.S. .
continental shelf but "the offender ig later foundin'the United States."
.•
•10. Convention on the Prohibition of the Develooment, Production, Stockpiling, and
Use of Chemical Weapons 'and on Their Destruction ("Chemical Weapons '
. Convention") (effective April 29, 1997)
. .
Implementing, Legislation - 18 U.S ..C: § 229 (prohibits developMent,•productiori,
stockpiling, retention, use or threat to use. any chemical weapon, with certain •
. exceptions and exemptions).
Jurisdictional Predicates - (1) the offense takes place within the U.S.; (2) the
, offense is committed by .a U.S.. national outside the U.S.; (3) the offense is •
cornpaitted against a U.S. national outside. the U.S.; (4) the offense is committed
against property outside the U.S. that is owned, leased Or used by the'U.S. or any
U.S. department Or agency. •
II: Convention on the Marking, of Plastic Explosives for the Purpose of Detection • • .
("Plastic Explosives Convention") (effective June 21, 1998)
'Itnplerrienting,-Legislation.7.18, .841 (pr.ohibits.rnatufacture o. ,f -unmarked
plastic expiosive); ; 18 § 842(in)(prohibits importation of unmarked plastic •
explosives); 18 U.S.C.• § 842(n) (prohibits transfer or receipt Of unmarked plastic
explosives); 18 U.S.C. § 842.(6)(prohibits posseision of unmarked. explosives): •
'Jurisdictional Predicates - None stated — by virtue of the nature of the. o.f• fe• nses, .
jurisdiction not extraterritorial. • • •
12. International Convention for the Suporessionof Terrorist Bombings ("Terrorist
•Bombing Convention") (effective June 26, 2002). .
. Imp lementing, Legislation -18 U.S.C. § 23.32f (prohibits placing or discharging an explo!
extensive, destruction, and such destruction results or is likely to result).
Jurisdictional Predicates - See 18 U.S.C. § 2332f(b) • (1) The Offense occurs in the
U.S. and (A) it is committed against an. other state or facility of such state; or
(B) is . Committed in an attempt to compel another state or the U.S. to do or •
abstain from doing an.act; (c) .the.offense iscornmittedon board a vessel flying_
the flag of another state, an aircraft registered in another state, or belonging to
another state; (D) the perpetrator is found outside the United States; (E) the '
perpetrator is a national of another state or a stateless person. (2) The.offense
occurs outside the U.S. and (A) the perpetrator is a U.S. national or stateless
"7 4 .
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person habitually residing in the U.S. (B) a victim is a U.S. national; (c) the
perpetrator is fbund in the United States; (D) the offense is committed in an .
attempt to compel the U.S to do or to abstain from doing an act; (E) thg offense id
committed against a state or government facility of the U.S.; (F) the offense is •
committed against a U.S. flag vessel or U.S.. registered aircraft; (G) the offense is
committed on board a U.S: operated aircraft.
• .13. International Convention for the Suppression of the Financing of Terrorism
("TerroristFiriancing•Convention") (effective June 25, 2002)
•implementing Legislation - 18 U.S.C. § 2339C (prohibits providing or collecting
, funds with the intention or knowledge that such funds are (A• ) to be Used to carry
out an act which constitutes an offense under one of a number of enumerated
treaties relating to terrorist' activity; or (B) any other act intended to cause death or
serious bodily injury to any Pivilian .or any other person riot taking part in' •
hostilities, When the purpose of the act is to intimidate a population, or to compel. •
a government or international organization to do or abstain from doing 'an act). •
Jurisdictional Predicates - See 18 U.S.C. § 2339C(b). There is jurisdiction over
•suchoffenses when: (1) the offense takes place in the U.S. and — (A) the
perpetrator was a national of another nation or a stateless person; (B) on board a
vessel- flying .-&-foreivr flag - or an aircraft registere&under•he laWs of.another - state; •
(C) on board an aircraft operated by another state; (D) the perpetrator is found •
outside the U.S.; (E) was directed toward or resulted in the carrying'out of a
predicate act. against - (i) a national of another state:, (ii) . another state or
government facility; (F)•was directed toward or resulted in the carrying out of a •
• predicate:act . committedin attempt to compel another state or international. • •
organization to do or abitain from doing any.act; (G) was directed toward or
'resulted. in the carrying out of the predicate .act —(i) outside the U.S.; or.(ii) within
the U.S., and either the offense or the predicate act was "conducted in,•ot the
'results thereof affected; interstate or foreign commerce; .(2) the offense takes. place:. •
outside the U.S. and.— (A) •t he perpetrator is a U.S.• national or a stateless person
• who habitually. resides in the U.S.; (B) a perpetrator was found in the U.S.; or
(c) was directed to- ward or resulted in the carrying out of a predica.te act against
(i) U.S. owned, leased or used property; (ii) any Person or property within the ,•••
•U.S.; (iii) any U.S. national or the property of such national; (iv) any property of a
legal entity organized'under U.S.• law, including any state, etc. (3) the offense is' •
committed aboard a U.S. flag vessel or a U.S. registered aircraft;, (4) the offense Is
_committed an board an aircraft operated.by_the U:S.; (5) the offense was-directed .•
toward or resulted in the carrying out of a predicate act committed in an attempt to
compel the U.S. to do or abstain from doing any act.
•
'75 FBIO23364CBT
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DOJOIG013171
DOES THE STATUTE CONTAIN AVENUE
PROVISION?
YES •
ANY OVERT ACT/ELEMENT OF OFFENSE
COMMITTED BY DEFENDANT OR ANY
CO-CONSPIRATOR WITHIN THE
DISTRICT?
-• VENUE AS DIRECTED
BY STATUTE .
'YES
•-•
VENUE IS PERMISSIBLE
WITH THAT DISTRICT
.• .
HAS DEFENDANT BEEN ARRESTED/
"FIRST BROUGHT" INTO THE DISTRICT? .
NO
DO YOU KNOW THE LA.ST_KNOWN •
•ADDRESS OF DEFENDANT OR ANY
ONE OF TWO OR MORE OF THE
' OFFENDERS?
YES
VENUE IN THAT DISTRICT IF
DEFENDANT NOT ALREADY
CHARGED BY , .
IND ICTMENT/INFORMATION
YES
FBIO23365CBT
'.OIG—REQ 02/18/05 —P24PN 8
NO.
NO VENUE IN D.C.
VENUE IN LOCATION OF LAST
KNOWN ADDRESS IF
DEFENDANT NOT ALREADY .
CH.ARGED.BY
IND ICTME10-1470Thl 22 I
ADDENDUM Date: 3/10/2004
Prepared by: SIG
VENUE ANALYSIS FLOW CHART
EXTRATERRITORIAL OFFENSE?
DOJOIG013172
Miranda - Extiaterritori.a1
ADVICE OF RIGHTS .
We are representatives of the United States GoVernment. Under our laws, you have certain
rights. Before we ask you any questions, we want to be sure that you understand those rights. • ,
You do not have to speak to us or answer any questiOns: Dien if you have already spoken to the
authorities, you do not have to Speak tb is now. • -
. .
If you do speak, with us, anything that you say may-be, used against you in a court in the United
• States or elsewhere.
In the United States, you would have the right to talk to a lawyer to get advice before we ask you
any questioniand you could have a lawyer with you during questioning.. In the United StateS:if
you could not afford .a lawyer, one would be appointed for you, if you wish, before any
questioning.
Because we are not in the United States, we cannot ensure that you will have a lawyer . appointed
for you before any questioning.
. . . . „ . . , • : ....._., , _•21f you decide to . speak.with us_ now_without a laWyer.present 4.yoap.vill still haVe_theright to...stop "•,,- ,-
• ; r answering questions at any time. . . . . . ..• .
. . . . .. • . . . • . . . , . • • •• . • .: .• .
You shouid also understand that if you decide not to speak witkus, that fact cannot beilsed as
evidence againSt you in a court in the United States.
• • ••
I have read this statement of my rights and I understand what my rights are. I am willing to make
a statement and answer questions: I do not want a lawyer at this time. II:understand and Icn.oW
what I am doing. No promises or threats have been made to ,the and no pressure or coercion of -• : •
any kind has been used against me. • •
-
Signed-:
- Date:
Witness: Time/Date:
Witness: Time/Date:
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