United States v. Daniszewski, 73 CR 212.
Decision Date | 15 August 1974 |
Docket Number | No. 73 CR 212.,73 CR 212. |
Citation | 380 F. Supp. 113 |
Parties | UNITED STATES of America, v. Edward Walter DANISZEWSKI, Defendant. |
Court | U.S. District Court — Eastern District of New York |
Frederick H. Cohn, New York City, for defendant.
Robert L. Clarey, Brooklyn, N. Y. (David G. Trager, U. S. Atty., of counsel) for the Government.
Defendant moves to dismiss Count 8 of the indictment, which reads:
An additional clause establishes venue for trial and Section 960(a)(3) fixes the penalty.
The defendant, it is conceded, is a citizen of the United States.
Defendant argues that, generally, laws proscribing conduct and attaching criminal penalties to the commission of the proscribed acts have no extra-territorial operation (cf. American Banana Co. v. United Fruit Co., 1909, 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826), and that the only clear, and the exceptional, instances of permitted extra-territoriality are those resting on the Protective Principle of jurisdiction, that is for statutes proscribing conduct abroad that threatens the nation's security as a state or the operation of its governmental functions, provided the proscribed conduct is not an exercise of a liberty authorized by the law of the place where it takes place or that it is recognized generally, as criminal conduct (United States v. Pizzarusso, 2d Cir. 1968, 388 F.2d 8, 10-11).
The jurisdiction envisaged in Section 208(d) is styled "objective" territorial jurisdiction: it embraces conduct every element of which is performed abroad but which (as perhaps in Section 959(1)) significantly foreshadows the commission of an offense within the territorial jurisdiction of the United States, e. g., the offense of 21 U.S.C. § 952 — unlawful importation of a narcotic drug. Strassheim v. Daily, 1911, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, as Judge Medina noted in Pizzarusso, furnished one definition of the "objective territorial principle" — as a jurisdiction embracing "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it . . ." Strassheim was an interstate, not an international case, and the Court seems to require proof that the objective within the proscribing state be achieved, which Section 208(d) would not require. Cf. United States v. Williams, 2d Cir. 1972, 464 F.2d 599, 601; Marin v. United States, 5th Cir. 1965, 352 F.2d 174, 177-178. Indeed, little need exists in such a case to rely on extra-territoriality. Causing a criminal intrusion is surely punishable if physical jurisdiction can be obtained over the person of the perpetrator. Pizzarusso, however, is explicit that although objective territorial jurisdiction does require both the local effect and the foreign acts, protective jurisdiction does not. 388 F.2d at 11. Cf. United States v. Vicars, 5th Cir. 1972, 467 F.2d 452, 456.
The "Working Papers" Memorandum does not regard Section 208 of the draft Code as going beyond existing law "for the most part." Working Papers, etc. Vol. I, p. 70. Cf. 1 Oppenheim's International Law § 147 (8th ed. 1955). The Memorandum notes, too (at pp. 72-73), that beside the "territorial," "protective," etc. principles, the "nationality principle," determining jurisdiction by reference to the national character of the offender, has been given recognition in international law. "Thus, citizens could presumably be prosecuted for any conduct abroad regardless of the nature of the offense or its effect within United States territory, by reliance on the nationality principle." See Blackmer v. United States, 1932, 284 U.S. 421, 436-437, 52 S.Ct. 252, 76 L.Ed. 375.
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