State v. Miller
| Decision Date | 04 February 1988 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 755 P.2d 434,157 Ariz. 129 |
| Parties | STATE of Arizona, Appellant, v. Allen R. MILLER, Appellee. 11000. |
| Court | Arizona Court of Appeals |
Allen Miller was indicted on one count of theft in violation of A.R.S. § 13-1802. Prior to trial, his motion to dismiss the prosecution for lack of jurisdiction was granted. The state appealed pursuant to A.R.S. § 13-4032(1). We affirm the dismissal.
Jerry Farmer and Julie Hart stole eleven diamond rings from a J.C. Penney store in Flagstaff, Arizona. They traveled to Durango, Colorado, with the rings in their possession. In Durango, Farmer and Hart met Allen Miller, the defendant in this case. Farmer and Hart did not know Miller prior to their meeting in Durango.
Farmer told Miller about the rings, and Miller agreed to help dispose of them in Las Vegas, Nevada. Miller and his new companions traveled to Las Vegas and sold some of the rings. They did not re-enter Arizona. Miller was given two of the rings in payment. He was subsequently arrested in Utah and extradited to Arizona.
The issue on appeal is whether the trial court erred in dismissing the charge of theft against Miller. The state asserts that Arizona has jurisdiction to prosecute Miller under A.R.S. § 13-108. That statute, in pertinent part, reads as follows:
A. This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which such person is legally accountable if:
1. Conduct constituting any element of the offense or a result of such conduct occurs within this state; or
2. The conduct outside this state constitutes an attempt or conspiracy to commit an offense within this state and an act in furtherance of the attempt or conspiracy occurs within this state; or
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4. The offense consists of an omission to perform a duty imposed by the law of this state regardless of the location of the defendant at the time of the offense[.]
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Based on this statute the state asserts four theories that it claims give Arizona courts jurisdiction over Miller. They are:
(1) that Miller's conduct produced a "result" in Arizona;
(2) that Miller failed to perform a duty required under Arizona law;
(3) that Miller was an accomplice to a crime committed in Arizona; and (4) that Miller was a conspirator to a crime committed in arizona.
Because these theories raise questions about the extent of Arizona's power to punish conduct that occurs outside the state, they are governed by principles of international law. Although the theories are intertwined, we will discuss each of them separately.
We look to international law to determine whether the state may assert jurisdiction based upon a statute that attempts to punish extraterritorial conduct. In Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), reh'g denied 313 U.S. 599, 61 S.Ct. 1093, 85 L.Ed. 1552, the Supreme Court, in upholding a state's jurisdiction over the extraterritorial acts of one of its own residents, observed that international law "is a part of our law and as such is the law of all States of the Union." Id. at 72-73, 61 S.Ct. at 927, 85 L.Ed. at 1198.
The Supreme Court has also recognized that international law applies to the states of the United States in their relations with one another except as modified by the federal constitution. Kansas v. Colorado, 185 U.S. 125, 146, 22 S.Ct. 552, 560, 46 L.Ed. 838, 846 (1902); see also Sinclair Pipe Line Co. v. State Comm'n of Revenue and Taxation, 184 Kan. 713, 718, 339 P.2d 341, 346 (1959).
The parameters of A.R.S. § 13-108, Arizona's jurisdictional statute, are discussed in the Arizona Criminal Code Commission Commentary (1975):
The primary constitutional question for jurisdictional statutes involves the power of a state to legislate other than on a strict territorial basis. The following excerpt from the Michigan Revised Criminal Code (proposed), commentary to § 140 summarizes the law:
Unless the state constitution contains a provision limiting the power of the legislature to enact legislation with extraterritorial application, the Tenth Amendment to the United States Constitution and United States Supreme Court cases like Skiriotes v. Florida, 61 S.Ct. 924, 313 U.S. 69, 85 L.Ed. 1193 (1941), and Strasheim [sic] v. Daily, 31 S.Ct. 558, 221 U.S. 280, 55 L.Ed. 735 (1911), appear clearly to permit a state to exercise any basis of legislative jurisdiction recognized in international law unless (1) the actual application of state legislation conflicts with the paramount power of the federal government to regulate and conduct foreign relations, (2) the legislation covers an area that the Congress has preempted under one of the powers delegated to it, or (3) there is an impermissible conflict with the legislative policies of the other state or states in which the defendant's actual conduct took place.
Id. at 20 (emphasis added). Thus, the Code Commission recognized that the principles of international law circumscribe the state's criminal jurisdiction.
The state argues that, when out-of-state criminal conduct "results" in deprivation of personal property to an Arizona citizen, Arizona courts are vested with jurisdiction by virtue of A.R.S. § 13-108(A)(1). The state cites no case that has stretched jurisdiction to reach an offender, like Miller, who was not a resident, who never entered the state, and who had nothing to do with the theft until the initial taking of the victim's property was complete. The case we find most closely in point, United States v. Columba-Colella, 604 F.2d 356 (5th Cir.1979), is squarely contrary to the state's position.
In Columba-Colella, the defendant was a British citizen and resident of Mexico who had no apparent contact with the United States. He lived in a Mexican border town where he took possession of a car that he knew had been stolen in the United States. The defendant was convicted of receiving a stolen vehicle in foreign commerce, in violation of 18 U.S.C. § 2313. The United States Court of Appeals for the Fifth Circuit ruled that the courts of the United States had no jurisdiction over the offense because the defendant's knowledge that the car had been stolen in the United States and transported into Mexico arose after those acts were completed. When the defendant first learned those facts he was in Mexico, where all his contacts with the person who stole the car took place. The court concluded that the defendant's act of receiving and attempting to sell the stolen car was "no constituent element" of the principal thief's crime, "and [was] not made so by the coincidence that the property subject to their agreement belonged to a citizen of the jurisdiction in which the theft occurred." Id. at 359. The defendant's crime was "legally unrelated" to the prior theft. Id.
The Columba-Colella court suggested that, when criminal conduct has taken place wholly within a jurisdiction, its character must be determined by the law of the place where the act was done:
It is difficult to distinguish the present case from one in which the defendant had attempted not to fence a stolen car but instead to pick the pockets of American tourists in Acapulco. No one would argue either that Congress would be competent to prohibit such conduct or that the courts of the United States would have jurisdiction to enforce such a prohibition were the offender in their control.
Recognizing the limitations on the power of Congress to punish crimes committed wholly outside the United States, the Columba-Colella court said, "We find that because the defendant's act in this case is beyond its competence to prescribe, Congress did not intend to assert jurisdiction here under 18 U.S.C. § 2313." Id. (emphasis added).
The result reached in Columba-Colella is consistent with international law as it is expressed in the Restatement (Second) of the Law, Foreign Relations Law of the United States (1965), in the tentative drafts of the proposed Restatement (Third) of the Law, Foreign Relations Law of the United States, 1 and in the Model Penal Code (1985). While we recognize that neither the Restatements nor the Model Penal Code control the reach of specific state legislation, they are indicative of what authorities in the field believe as to how far a state may extend its criminal jurisdiction.
The Restatement (Second) of the Law of Foreign Relations of the United States § 30(2) reads as follows:
§ 30. Jurisdiction to Prescribe with Respect to Nationals
....
(2) A state does not have jurisdiction to prescribe a rule of law attaching legal consequences to conduct of an alien outside its territory merely on the ground that the conduct affects one of its nationals.
Comment (e) to § 30 explains that subsection (2)
rejects the so-called 'passive personality' principle under which a number of [nations] assert that they may prescribe rules governing the criminal conduct of aliens outside their territory if the victims of the crime are their nationals.
Thus, something more than an effect on one of its citizens is usually required for a country or state to assert jurisdiction over a person whose criminal act committed in another country or state affects one of its citizen's interest. Section 402 of the proposed Restatement (Revised) of the Law, Foreign Relations Law of the United States, however, does expand jurisdiction to allow a state to reach those whose crimes have a substantial effect within the state:
Subject to § 403, a state has jurisdiction to prescribe law with respect to
....
(c) conduct outside its...
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