232 F.3d 1166 (9th Cir. 2000), 99-10232, US v Corey

Docket Nº:99-10232
Citation:232 F.3d 1166
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CLIFTON S. COREY, Defendant-Appellant.
Case Date:November 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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232 F.3d 1166 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CLIFTON S. COREY, Defendant-Appellant.

No. 99-10232

United States Court of Appeals, Ninth Circuit

November 20, 2000

Argued and Submitted March 14, 2000

Appeal from the United States District Court for the District of Hawaii: David A. Ezra, District Judge, Presiding.[*] D.C. No. CR-96-01019-MLR.

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Samuel P. King, Jr., Honolulu, Hawaii, argued the cause for the defendant-appellant.

Loretta A. Matsunaga, Assistant United States Attorney, Honolulu, Hawaii, argued the cause for the plaintiff-appellee.

Before: Alex Kozinski, Andrew J. Kleinfeld and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Kozinski; Dissent by Judge McKeown.

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KOZINSKI, Circuit Judge.

We consider whether the federal courts have jurisdiction over a criminal case charging a United States citizen with offenses committed at United States installations abroad.

I

Clifton S. Corey, a United States citizen, lived abroad with his family while working for the U.S. Air Force as a civilian postmaster. From 1993 to 1996, Corey ran the post office at the American Embassy in Manila, the Philippines, and for several years before, he managed the office at the U.S. Air Force Base at Yokota, Japan. In 1996, Corey's stepdaughter, Anna, told her doctor that her stepfather had forced her to engage in sexual intercourse with him for the previous five years, starting when she was fifteen. After an investigation, the government charged Corey with aggravated sexual abuse and sexual abuse in violation of 18 U.S.C. § 2241(a) and 2242(1).1 The first trial ended in a hung jury but, after a second trial, Corey was convicted on eight of eleven counts and sentenced to 262 months in prison. On appeal, he challenges the district court's jurisdiction and also raises a variety of trial errors. We address the jurisdictional issue in this opinion and the remaining issues in a memorandum disposition filed concurrently.

II

Prior to trial, the district court granted the government's motion to preclude Corey from contesting jurisdiction.2 Corey argued then, as he does now, that crimes committed on foreign soil fall outside the reach of 18 U.S.C. §§ 2241 and 2242. Both provisions proscribe sexual assault within the "special maritime and territorial jurisdiction of the United States," a phrase defined by 18 U.S.C. § 7. While Corey lived in Japan, he and his family resided on the Yokota Air Force Base. In the Philippines, they lived at Lopez Court, a private apartment building rented by our embassy for the use of its employees. The government charges that the sexual abuse occurred in each of these residences. Corey argues that neither residence falls within the special jurisdiction of the United States.

The "special maritime and territorial jurisdiction of the United States" includes:

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.

18 U.S.C. § 7(3). This provision tracks its origin to 1790, yet, at the time this case was brought, only two courts had addressed

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whether it applied to lands within the territory of a foreign nation. See United States v. Erdos, 474 F.2d 157 (4th Cir. 1973); Witten v. Pitman, 613 F.Supp. 63, 65-66 (S.D. Fla. 1985); see also Talbott v. United States ex rel. Toth, 94 U.S. App. D.C. 28, 215 F.2d 22, 27 (D.C. Cir. 1954), rev'd sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11, 100 L.Ed. 8, 76 S.Ct. 1 (1955). Two other courts have since ruled on the issue. See United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000); United States v. Bin Laden, 92 F.Supp.2d 189 (S.D.N.Y. 2000).

We review de novo the district court's assertion of jurisdiction. See United States v. Vasquez-Velasco, 15 F.3d 833, 838-39 (9th Cir. 1994).

III

A. Congress may enforce its laws beyond the territorial boundaries of the United States. See EEOC v. Arabian Am. Oil Co. ("Aramco"), 499 U.S. 244, 248, 113 L.Ed. 2d 274, 111 S.Ct. 1227 (1991); Vasquez-Velasco, 15 F.3d at 839 ("Generally there is no constitutional bar to the extraterritorial application of United States penal laws." (citations omitted)). Whether Congress has in fact exercised such power is a question of statutory construction, normally subject to the rule "'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" Aramco, 499 U.S. at 248 (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 93 L.Ed. 680, 69 S.Ct. 575 (1949)); see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188, 125 L.Ed. 2d 128, 113 S.Ct. 2549 (1993) ("Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested.").

For most legislation, the presumption against extraterritoriality makes perfect sense. First, "Congress generally legislates with domestic concerns in mind," Smith v. United States, 507 U.S. 197, 204 n.5, 122 L.Ed. 2d 548, 113 S.Ct. 1178 (1993), so courts can infer from congressional silence that the legislature meant to regulate only activities within the nation's borders. Second, the rule ensures that we do not precipitate "unintended clashes between our laws and those of other nations which could result in international discord." Aramco, 499 U.S. at 248. The Supreme Court has invoked this territorial presumption in numerous cases involving the scope of broad regulatory statutes. See, e.g., Sale, 509 U.S. at 173 (Immigration and Nationality Act); Aramco, 499 U.S. at 248 (Title VII); Filardo, 336 U.S. at 285 (federal overtime law); American Banana Co. v. United Fruit Co., 213 U.S. 347, 357, 53 L.Ed. 826, 29 S.Ct. 511 (1909) (Sherman Act). In all of these cases, the Court held that Congress expected that its regulations would end at the national borders.

The territorial presumption is thus based on the common-sense inference that, where Congress does not indicate otherwise, legislation dealing with domestic matters is not meant to extend beyond the nation's borders. But the presumption does not apply where the legislation implicates concerns that are not inherently domestic. For instance, in United States v. Bowman, 260 U.S. 94, 98, 67 L.Ed. 149, 43 S.Ct. 39 (1922), the Supreme Court held that the territorial presumption does not govern the interpretation of criminal statutes that, by their nature, implicate the legitimate interests of the United States abroad. Bowman concerned fraud committed on a U.S. vessel outside the territorial waters of the United States. Although the statute there did not contain an extraterritoriality provision, the Court concluded that it covered the conduct in question. See also Vasquez-Velasco, 15 F.3d at 839 n.4 (applying Bowman to violent crimes associated with international drug trafficking); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir. 1991) (applying Bowman to accessory after the fact to the murder of a DEA agent in Mexico). Thus, courts do not apply the territorial presumption where it is not a reliable guide to congressional intent.

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When Congress is considering the scope of federal jurisdiction, its attention is focused precisely on how far U.S. law should reach. Unlike ordinary domestic statutes, jurisdictional statutes inherently present the question of how far Congress wishes U.S. law to extend. There is therefore no reason to presume that Congress did, or did not, mean to act extraterritorially. Rather, we agree with Bin Laden that "when presented with the task of interpreting jurisdictional statutes such as [subsection] 7(3), courts should simply employ the standard tools of statutory interpretation . . . ." 92 F.Supp.2d at 206 n.32.

Applying the territorial presumption to subsection 7(3) would be a mistake for another reason: Land subject to subsection 7(3) is not "extraterritorial," as the Supreme Court has defined the term. In Aramco, the Court described territorial jurisdiction as including "places over which the United States has sovereignty or has some measure of legislative control." Aramco, 499 U.S. at 248 (internal quotation marks omitted). Subsection 7(3) does not purport to regulate conduct within territory over which the United States lacks "some measure of legislative control"; by its terms, it extends only to areas within the concurrent or exclusive jurisdiction of the United States. See Environmental Defense Fund v. Massey, 300 U.S. App. D.C. 65, 986 F.2d 528, 533 (D.C. Cir. 1993) ("Where the U.S. has some real measure of legislative control over the region at issue, the presumption against extraterritoriality is much weaker."). Thus, even more than ordinary jurisdictional statutes, subsection 7(3) is a poor candidate for the territorial presumption.

Because foreign lands covered by subsection 7(3) are, by definition, under the legislative control of the United States, the second policy supporting the territorial presumption - the desire to avoid "unintended clashes" with foreign powers, see Aramco, 499 U.S. at 248 - is also inapplicable. Legislative jurisdiction over the territory of a foreign power can only be acquired through that nation's consent - or by conquest. See, e.g., In re Ross, 140 U.S. 453, 464, 35 L.Ed. 581, 11 S.Ct. 897 (1891) ("When . . . the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries...

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