Criminal law and extraterritorial jurisdiction
At first glance, one would think that allegedly criminal acts occurring outside the United States could not be subject to prosecution inside the United States. This assumption is not always true. Indeed, extraterritorial jurisdiction, as this concept is known, is increasingly used by the United States to prosecute both US citizens living and working abroad, as well as foreign nationals who have no connection to the United States.
A recent U.S. Supreme Court case sheds light on extraterritorial jurisdiction
RJR Nabisco, Inc. vs. The European Community, 136 S.Ct. 2090 (2016), while not a criminal case, discussed extraterritorial jurisdiction at some length. In RJR Nabisco the European Community alleged that RJR Nabisco conducted a money-laundering scheme with international drug traffickers involving the sale of narcotics and the black-market sale of RJR cigarettes in Europe. The Supreme Court held unanimously that the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply to criminal actions occurring outside the United States.
What factors must courts look at when determining if extraterritorial jurisdiction is appropriate?
In RJR Nabisco, the Supreme Court set forth the test for extraterritorial jurisdiction. When determining whether extraterritorial jurisdiction applies, federal courts must examine the following:
- First, has Congress expressly stated that a law applies outside the United States? If so, extraterritorial jurisdiction is appropriate, assuming the statute in question does not violate due process or other Constitutional protections.
- Second, even if Congress has not expressly stated that a law has extraterritorial applications, American laws may still apply to conduct that occurred overseas if some conduct relevant to the statute’s focus took place in the United States.
In RJR Nabisco, discussing the RICO statute, the Supreme Court held that Congress has clearly made RICO applicable to foreign racketeering activity to the extent such predicate acts themselves have a foreign component, such as money laundering. After RJR Nabisco, it is clear that a foreign individual or American citizen living abroad could be subject to the long reach of the RICO statute and face prosecution in the United States
One example of the RICO law being stretched beyond recognition in the extraterritorial context is the US Government’s current prosecution of FIFA officials who allegedly participated in a world-wide criminal enterprise of corruption in the international soccer world – a case in which Miedel & Mysliwiec LLP represents one of the defendants. Most if not all of the alleged misconduct in the FIFA case took place outside the United States and had no direct impact on the United States. However, using the extraterritorial powers of RICO and other statutes, such as money laundering, the FIFA prosecution has withstood jurisdictional challenges and is moving forward against the remaining defendants.
What offenses could give rise to extraterritorial prosecution?
Congress has enacted some laws that explicitly provide courts with extraterritorial jurisdiction. Many of these laws invoke maritime law, such as the Maritime Drug Law Enforcement Act (MDLEA). Other criminal statutes relate to offenses taking place in airplanes or offenses taking place in federal buildings in foreign installations. Other laws explicitly providing federal courts with extraterritorial jurisdiction involve illicit sexual conduct involving minors, and the sale of sexual materials involving minors.
Other laws where Congress may have implicitly provided for extraterritorial jurisdiction include:
- Conspiracy charges in which someone living abroad conspired to commit a crime in the United States
- Attempt charges in which someone overseas attempts to commit a crime in the United States while living abroad
- Theft of federal property overseas
- Counterfeiting American money or forging federal documents overseas
- Killing a foreign national abroad with the intent of facilitating a domestic criminal enterprise
- Money laundering
Some legal analysts believe that RJR Nabisco will limit extraterritorial prosecutions based on implied jurisdiction. For instance, mail fraud and wire fraud statutes do not contain explicit extraterritorial jurisdiction, and it is challenging to find implied extraterritorial applications. With this said, the real-world impact of RJR Nabisco will be felt in coming years.