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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 26, 2004 Decided July 23, 2004
No. 03-3060
UNITED STATES OF AMERICA,
APPELLEE
v.
JOSE DELGADO–GARCIA,
APPELLANT
Consolidated with
03-3067, 03-3068
Appeals from the United States District Court
for the District of Columbia
(No. 02cr00293-01)
(No. 02cr00293-02)
(No. 02cr00293-03)
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Tony Axam, Assistant Federal Public Defender, argued
the cause for appellants. With him on the briefs were A. J.
Kramer, Federal Public Defender, and Joseph Virgilio and
Mona Asiner, appointed by the court. Iris E. Bennett,
Assistant Federal Public Defender, entered an appearance.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese
III, and Jeanne M. Hauch, Assistant U.S. Attorneys.
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Concurring opinion filed by Circuit Judge RANDOLPH.
Dissenting opinion filed by Circuit Judge ROGERS.
SENTELLE, Circuit Judge: Each of the appellants, Jose
Delgado-Garcia, Jose Prado-Morales, and C´sar Bravo-
e
Cene˜ o, pleaded guilty either to conspiring to induce aliens
n
illegally to enter the United States, or to attempting to bring
illegal aliens into the United States in violation of 8 U.S.C.
§ 1324(a). Despite those pleas, they took direct appeals and
now attack their convictions on several grounds. We reject
their claims and affirm the convictions.
I.
In their plea proffers, appellants admitted to conspiring to
transport 191 Ecuadorian nationals in order to facilitate their
illegal entry into the United States. Appellants attempted to
transport the passengers via a 54-foot fishing vessel, the Jos´
e
Alexander II. Delgado-Garcia was the captain and piloted
the ship. Bravo-Cene˜o was the ship’s mechanic. Prado-
n
Morales was a crew member.
The ship’s voyage began May 27, 2002, from a position
some distance off-shore from Santa Elena, Ecuador. The
plan apparently was to transport the Ecuadorians on the ship
to Mexico, and for the Ecuadorians to enter the United States
by land from there. On or about June 6, 2002, a United
3
States Navy helicopter sighted the vessel off the Guatemalan
coast and recognized it as being overcrowded. Upon the
approach of the helicopter, the vessel changed course. The
vessel displayed no running lights, flew no flags, and had at
least 70 passengers visible on the deck. Thereafter, the
U.S.S. Fife, a United States Navy ship carrying a United
States Coast Guard law enforcement detachment (‘‘LEDET’’),
located the vessel, later identified as the Jos´ Alexander II, in
e
international waters, 170 nautical miles south of Guatemala
and Mexico. After monitoring the movements of the vessel,
the LEDET hailed it to begin questioning, but received no
response. The LEDET launched a boat from the U.S.S. Fife,
approached the vessel, and attempted questioning from the
boat. Migrants on board the Jos´ Alexander II responded to
e
questioning that they had inadequate food, water, and fuel;
that they had left Gayaquil, Equador, on May 27, 2002; and
that the master and crew of the ship had left before the
U.S.S. Fife’s approach. After rendering assistance and veri-
fying that one of the passengers could navigate the vessel to
Guatemala, the LEDET advised the migrants to take the
vessel to the port at Quetzal and escorted it there. Thereaf-
ter, LEDET personnel determined, based on interviews with
the passengers and further investigation, that the ship had
been attempting to facilitate the illegal immigration of the
passengers to the United States.
A grand jury charged appellants with conspiracy to encour-
age and induce aliens illegally to enter the United States, in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(v), (a)(1)(A)(iv), and
(a)(1)(B)(I), and attempted bringing of unauthorized aliens to
the United States, in violation of 8 U.S.C. §§ 1324(a)(2) and
(a)(2)(B)(ii). Appellants moved to dismiss the indictment on
several grounds. They contended that the indictment did not
charge an offense under § 1324(a), arguing that the statute
does not apply extraterritorially. Appellants also asserted
that their interdiction violated international law, as the Jos´
e
Alexander II, they claimed, was under the exclusive jurisdic-
tion of Ecuador and the government of Ecuador did not
consent to the U.S. government escorting that vessel to
Ecuador. They argued, additionally, that the Fife’s crew had
4
exceeded the authority granted under 14 U.S.C. § 89(a).
That provision gives the Coast Guard authority, among other
things, to ‘‘make inquiries, examinations, inspections,
searches, seizures, and arrests upon the high seas and waters
over which the United States has jurisdiction, for the preven-
tion, detection, and suppression of violations of laws of the
United States.’’ Appellants claimed that this provision did
not authorize the interdiction of the Jos´ Alexander II be-
e
cause it was in international, not U.S., waters when the Fife
approached it, and because the crew lacked reasonable suspi-
cion to believe that the vessel’s crew was engaged in illegal
activity that would affect the United States. Lastly, appel-
lants argued that prosecuting them under § 1324(a) violated
the Fifth Amendment’s due process clause, as there was no
‘‘nexus’’ between appellants’ conduct and the territory of the
United States.
On January 31, 2003, the district court denied appellants’
motion. Shortly thereafter, in February 2003, Prado-Morales
and Bravo-Cene˜o unconditionally pleaded guilty to the con-
n
spiracy count in the indictment and Delgado-Garcia uncondi-
tionally pleaded guilty to the attempt count. This appeal
followed.
II.
This direct criminal appeal comes to us in a strange pos-
ture. Appellants moved to dismiss the indictment on the
statutory, constitutional, and international-law grounds they
now raise on appeal. Yet they unconditionally pleaded guilty
to the crimes of which they were charged. The first issue we
address, therefore, is whether their unconditional pleas
waived the claims they now assert on appeal. For the
reasons that follow, we hold that these pleas waived all of
appellants’ claims. However, the government does not ad-
vance the argument that the unconditional pleas waived ap-
pellants’ claim that § 1324(a) applies extraterritorially. The
government has thus waived its waiver argument on that
point. Cf. United States v. Johnson, 216 F.3d 1162, 1166
(D.C. Cir. 2000) (discussing the government’s waiving of a
5
defendant’s procedural default). We therefore reach the
merits of appellants’ claim that § 1324(a) does not apply
extraterritorially.
Appellants assert four claims on appeal; these claims are,
more or less, the same arguments that were the basis of their
motion to dismiss the indictment. First, appellants reassert
their claim that the substantive statute which they by their
pleas admitted violating, 8 U.S.C. § 1324(a), does not apply
extraterritorially, and therefore not to them in this case.
Second, appellants argue that the government failed to prove
that they committed a crime with effects in the United States,
and therefore did not prove a ‘‘nexus’’ between appellants’
conduct and the United States, as they claim the Fifth
Amendment’s due process clause requires. Third, appellants
assert that their prosecution violated 14 U.S.C. § 89(a), for
the same reasons they asserted below. Finally, appellants
claim that their apprehension violated customary internation-
al law and a treaty to which the United States is a party.
Appellants waived all of these claims by pleading guilty
unconditionally. Unconditional guilty pleas that are knowing
and intelligent – and there is no claim that appellants’ pleas
were otherwise – waive the pleading defendants’ claims of
error on appeal, even constitutional claims. See, e.g., United
States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000). There are
two recognized exceptions to this rule. The first is the
defendant’s claimed right ‘‘not to be haled into court at all;’’
for example, a claim that the charged offense violates the
double jeopardy clause. Blackledge v. Perry, 417 U.S. 21, 30-
31 (1974); see also Menna v. New York, 423 U.S. 61, 62-63 &
n.2 (1975) (per curiam). This is the so-called ‘‘Black-
ledge/Menna’’ exception. The second is that the court below
lacked subject-matter jurisdiction over the case, as a claim of
lack of subject-matter jurisdiction, ‘‘because it involves a
court’s power to hear a case, can never be forfeited or
waived.’’ United States v. Cotton, 535 U.S. 625, 630 (2002)
(citing Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 89 (1998)).
6
None of appellants’ claims falls into either of these excep-
tions. As to the subject-matter jurisdiction exception: there
is no question that the district court had subject-matter
jurisdiction over appellants’ case. Appellants’ best argument
to the contrary rests on their claim that the indictment failed
to state an offense, which they claim deprived the district
court of subject-matter jurisdiction over them. The govern-
ment apparently agrees with appellants that this purported
defect in the indictment concerns the district court’s subject-
matter jurisdiction over appellants’ case, rather than the
merits of the case.
We do not agree. Under Article III of the Constitution,
‘‘[t]he judicial power of the United States’’ is ‘‘vested TTT in
such inferior Courts as Congress may from time to time
establish.’’ U.S. Const. art. III, § 2. Congress conferred
original jurisdiction on the district court over appellants’ case
by enacting 18 U.S.C. § 3231. That statute, passed originally
in 1948, see 62 Stat. 826, provides that the ‘‘district courts of
the United States shall have original jurisdiction TTT of all
offenses against the laws of the United States.’’ The ordi-
nary meaning of the term ‘‘jurisdiction’’ at the time that
statute was passed referred to a court’s power to ‘‘declar[e]
and administer[ ] law or justice.’’ 5 The Oxford English
Dictionary 635 (1933); see also Webster’s Third New Interna-
tional Dictionary 1227 (1961). Section 3231 identifies ‘‘of-
fenses against the laws of the United States’’ as the relevant
‘‘law’’ over which the court has ‘‘power’’ (or ‘‘jurisdiction’’).
The power to declare that law includes the power to decide
whether the offense charged is a true offense, for, as Justice
Holmes noted long ago, that power remains whether the
court’s ‘‘decision’’ on the law (in this instance, the court’s
judgment as to the ‘‘offense’’) ‘‘is right or wrong.’’ Lamar v.
United States, 240 U.S. 60, 65 (1916) (noting that ‘‘[t]he
objection that the indictment does not charge a crime against
the United States goes only to the merits of the case’’ rather
than the court’s jurisdiction). The district court’s subject-
matter jurisdiction in this case therefore included the power
7
to decide whether the indictment charged a proper ‘‘offense.’’1
None of the statutory or constitutional provisions appel-
lants cite divested the district court of its original jurisdiction
under § 3231. The substantive statute appellants pleaded
guilty to violating, 8 U.S.C. § 1324(a), does not so much as
mention the court’s ‘‘jurisdiction.’’ The treaty to which appel-
lants point us – The Convention on the High Seas – does
state that ‘‘ships that sail under the flag of one State only TTT
shall be subject to its exclusive jurisdiction on the high seas.’’
Convention On the Law of the Sea, Sept. 30, 1962, art. 6, § 1,
13 U.S.T. 2312. ‘‘Jurisdiction’’ in this sense, however, refers
to the general authority of the U.S. government over the ship
at issue, including the executive branch’s authority, not the
power of the district court in particular over prosecutions
arising out of the executive’s assertion of such authority. The
term ‘‘jurisdiction’’ is also used in this way in 14 U.S.C.
§ 89(a), and in the customary international law doctrines to
which appellants point us. Finally, appellants’ Fifth Amend-
ment claim is irrelevant to the court’s Article III subject-
matter jurisdiction. The Constitution by its terms leaves it
solely to Congress to allocate that power by statute, and
there is no claim in this case that this jurisdictional grant is
somehow independently unconstitutional.
Precedent bolsters our conclusion that the substantive suf-
ficiency of the indictment is a question that goes to the merits
of the case, rather than the district court’s subject-matter
jurisdiction. The Supreme Court’s decision in United States
v. Cotton, 535 U.S. 625 (2002), supports this conclusion.
There, the Court held that the failure of an indictment to
state a sentencing element required to be submitted to the
jury and proven beyond a reasonable doubt was not a juris-
dictional defect that required automatic reversal of the con-
viction. Id. at 630-31. ‘‘Defects in an indictment do not
deprive a court of its power to adjudicate a case,’’ the Court
explained; the issue of the indictment’s substantive sufficien-
1 We express no view on what remedies would be available to
such a defendant asserting inadequate legal counsel after having
pleaded guilty.
8
cy instead goes to the merits. Id. We also note that at least
two circuits have held that the question of an indictment’s
failure to state an offense is an issue that goes to the merits
of a case, not the district court’s subject-matter jurisdiction.
See United States v. Gonzalez, 311 F.3d 440, 442 (1st Cir.
2002), cert. denied, 124 S. Ct. 47 (2003); United States v.
Brown, 164 F.3d 518, 520-22 (10th Cir. 1998).
Nor do appellants’ claims fall into the second, Black-
ledge/Menna exception. That exception concerns the right of
defendants ‘‘not to be haled into court at all’’ as that phrase
was used in Blackledge v. Perry, 417 U.S. 21 (1974), and
Menna v. New York, 423 U.S. 61 (1975) (per curiam). Perry,
the case in which the Court first applied this exception,
involved a defendant whom the state of North Carolina had
convicted of misdemeanor assault and given a six-month
sentence. After the defendant filed his notice of appeal from
that conviction, the state prosecutor obtained an indictment
against him on a felony assault charge based on the same
conduct that gave rise to the misdemeanor charge. 417 U.S.
at 22-23. Perry pleaded guilty to that charge, but later
claimed that the second charge violated his due-process rights
because the charge penalized him for exercising his statutory
right to appeal. Id. at 25-26. The Supreme Court held that
Perry’s guilty plea did not waive his due-process claim,
because Perry’s constitutional claim of prosecutorial vindic-
tiveness ‘‘went to the very power of the state to bring [Perry]
into court to answer the charge brought against him.’’ Id. at
30. The right, the Court reasoned, was the ‘‘right not to be
haled into court at all upon the felony charge,’’ and therefore
implicated the ‘‘distinctive’’ procedural injury against which a
right ‘‘to prevent a trial from taking place at all’’ protects.
Id. at 30-31. The Court later clarified that the Blackledge
exception applies to double jeopardy claims. Menna, 423
U.S. at 62-63.
The injury associated with appellants’ claims is not compa-
rable to the injury the Supreme Court identified in Black-
ledge and Menna. Appellants’ only constitutional claim is
that their prosecution violates the Fifth Amendment’s due
process clause because ‘‘none of the specific actions attributed
9
to appellants were aimed at causing criminal acts within the
United States.’’ Br. for Appellants at 20. That assertion is a
claim that the due process clause limits the substantive reach
of the conduct elements of 8 U.S.C. § 1324(a), not a claim
that the court lacks the power to bring them to court at all.
Even if the prosecution of appellants violated the Fifth
Amendment for this reason, appellants would still need to
come to ‘‘court to answer the charge brought against’’ them.
Blackledge, 417 U.S. at 30.
In any event, even assuming that appellants’ Fifth Amend-
ment claim concerns the power of the court to force them to
appear, that claim still is waived. The indictments clearly
alleged that appellants intended to smuggle aliens into the
United States, thereby causing effects there. While appel-
lants would have us look beyond the indictment to the under-
lying facts surrounding the interdiction of the Jos´ Alexander
e
II to show the absence of a nexus, there was no arguable
facial constitutional infirmity in the indictment, and the
Blackledge/Menna waiver exception does not apply. See
United States v. Brace, 488 U.S. 563, 575 (1989).
For these reasons, as a matter of pure legal principle,
appellants’ guilty pleas waived all of their claims. That
conclusion is sufficient to dispose of all of appellants’ claims
on appeal, save for their claim that 8 U.S.C. § 1324(a) does
not apply extraterritorially. However, the government’s brief
strangely ‘‘assumes for present purposes’’ that appellants
have not waived their claim as to the extraterritorial applica-
tion of § 1324(a). The government has therefore waived its
waiver argument on that point. See United States v. John-
son, supra.
III.
The government’s concession impels us to decide whether
§ 1324(a) criminalizes appellants’ extraterritorial conduct.
We hold that it does.
Appellants pleaded guilty to two distinct crimes. Prado-
Morales and Bravo-Cene˜o pleaded guilty to conspiracy to
n
encourage and induce aliens illegally to enter the United
10
States. The statute that defines that crime prohibits conspir-
ing to
encourage[ ] or induce[ ] an alien to come to, enter, or
reside in the United States, knowing or in reckless
disregard of the fact that such coming to, entry, or
residence is or will be in violation of law.
8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(A)(v)(I). The second
crime, to which Delgado-Garcia pleaded guilty, is the attempt-
ed bringing of unauthorized aliens to the United States. The
statute that defines that crime provides:
Any person who, knowing or in reckless disregard of the
fact that an alien has not received prior official authoriza-
tion to come to, enter, or reside in the United States,
brings to or attempts to bring to the United States in
any manner whatsoever, such alien, regardless of any
official action which may later be taken with respect to
such alien, for each alien in respect to whom a violation
of this paragraph occurs
commits a federal crime. Id. § 1324(a)(2).
Both of these statutes apply extraterritorially. Appellants’
argument that they do not invokes the presumption against
reading statutes to have extraterritorial effect. See, e.g., Sale
v. Haitian Centers Council, Inc., 509 U.S. 155, 173 (1993);
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 250-51 (1991).
This presumption, properly understood, does not mean that
§ 1324(a) criminalizes only domestic conduct. The presump-
tion against extraterritorial application of domestic statutes
‘‘is based on the assumption that Congress is primarily con-
cerned with domestic conditions.’’ Foley Bros. v. Filardo,
336 U.S. 281, 285 (1949); see also Smith v. United States, 507
U.S. 197, 206-07 n.5 (1993). This presumption embodies
sensible contextual linguistic reasons for reading the plain
texts of domestic statutes not to apply everywhere in the
world. Because Congress’s primary arena of sovereignty is
the territorial United States, it makes sense to presume,
absent other evidence, that its commands linguistically apply
only there. Therefore, we presumptively read the text of
11
congressional statutes not to apply extraterritorially, unless
there are contextual reasons for reading the text otherwise.
As the dissent points out, the presumption, and indeed the
underlying proposition that Congress legislates primarily
with domestic conditions in mind, in part makes sense be-
cause we assume that Congress desires to avoid conflict with
other nations. That helps explain why we presume statutes
not to apply extraterritorially, unless there are contextual
reasons for reading the text otherwise. Contextual reasons,
in our view, supply the ‘‘affirmative evidence’’ the Supreme
Court requires to overcome the presumption.
The dissent suggests that our discussion of this presump-
tion conflicts with dictum in Kollias v. D & G Marine
Maintenance, 29 F.3d 67 (2d Cir. 1994). Dissent at 3. In
fact, we agree with the Second Circuit’s statement (which was
not essential to its holding, as the court held that the statute
in question did in fact apply extraterritorially, id. at 73-75)
that ‘‘all statutes, without exception, [should] be construed to
apply within the United States only, unless a contrary intent
appears,’’ id. at 71. Our point is that contextual factors show
that Congress had a contrary intent in this case.
The presumption embodies a sensible caution against read-
ing statutes lightly to apply outside U.S. borders. Like any
linguistic convention, it depends on contingent real-world
assumptions. The point of the policy concerns ‘‘behind’’ the
presumption against applying statutes to have extraterritorial
effect is that they mean that a court should ordinarily under-
stand Congress’s commands to apply only within U.S. bor-
ders, not that a court should itself apply those policy concerns
to the case at bar and read the statute based on the result of
its own policy analysis. Because, as the dissent correctly
states, ‘‘[d]ecisions about when to subject foreign nationals
and foreign conduct to the United States’ laws invoke delicate
questions of jurisdiction and international relations’’ and be-
cause ‘‘courts TTT lack the foreign policy expertise of the
legislative and executive branches,’’ dissent at 2, we must
apply the canons of construction to interpret, not rewrite,
congressional acts. However, in examining the statute for
12
congressional intention of extraterritorial application, we con-
sider both contextual and textual evidence. That is what our
analysis below represents.
Read in context, § 1324(a) applies extraterritorially. On its
face, it concerns much more than merely ‘‘domestic condi-
tions.’’ It protects the borders of the United States against
illegal immigration. As the terrorist attacks of September
11, 2001 reminded us starkly, this country’s border-control
policies are of crucial importance to the national security and
foreign policy of the United States, regardless whether it
would be possible, in an abstract sense, to protect our borders
using only domestic measures. This contextual feature of
§ 1324(a) establishes that it is fundamentally international,
not simply domestic, in focus and effect. The presumption
that Congress’s commands do not reach those outside the
borders of the United States is overcome by affirmative
contextual evidence of congressional intent. It is natural to
expect that a statute that protects the borders of the United
States, unlike ordinary domestic statutes, would reach those
outside the borders. It makes no sense to presume that such
a statute applies only domestically. We agree with the
dissent that whether a statute should apply extraterritorially
is a judgment for Congress, dissent at 11; our point is that
this contextual feature shows that this is the judgment Con-
gress made in § 1324(a).
But more than simply the fact that this statute is interna-
tional in focus shows that it applies extraterritorially. There
is also specific textual evidence that, as the Supreme Court
observed in United States v. Bowman, ‘‘the natural inference
from the character of the offense[s]’’ is that an extraterritori-
al location ‘‘would be a probable place for [their] commission.’’
260 U.S. 94, 99 (1922). That evidence strengthens our conclu-
sion that, read in context, these crimes apply to extraterritori-
al conduct.
The Supreme Court’s decision in Bowman supports the
validity of this inference. Bowman was a case in which the
Supreme Court concluded that the crime of defrauding a
corporation in which the United States was a stockholder
13
applied to U.S. citizens abroad. Id. at 102-03. Bowman, we
acknowledge, is not directly on point. Bowman involved
criminal defendants who were U.S. citizens and the offense
was fraud against the United States, id. at 102-03; this case,
in contrast, involves aliens and immigration offenses. These
differences, however, do not lessen Bowman’s force as ap-
plied to this case. The first difference, the citizenship of the
defendants, is irrelevant. While Bowman did qualify its
holding by noting that no aliens were before the Court,
Bowman’s logic did not depend on this fact. The Bowman
Court’s reasoning was much more pointed than that. The
Court noted that the fraud statute under which the prosecu-
tion in Bowman was proceeding was amended in 1918 to
extend its protection, theretofore limited to government de-
partments, to ‘‘any corporation in which the United States of
America is a stockholder.’’ From the timing of the amend-
ment, the Court reasoned that Congress intended to protect
the Emergency Fleet Corporation. Id. at 101-02. The Court
therefore concluded that the statute criminalizing defrauding
a U.S. corporation applied extraterritorially because the
Emergency Fleet Corporation, a U.S. corporation, ‘‘was ex-
pected to engage in, and did engage in, a most extensive
ocean transportation business.’’ Id. at 101. Because of this
expectation, the Court reasoned, many persons who commit
the crime of defrauding a U.S. corporation would do so
overseas, and therefore the statute had extraterritorial appli-
cation. Bowman is therefore analogous because, as discussed
more fully below, the same expectation holds of § 1324(a).
For these reasons, we disagree with the dissent that the fact
that Bowman involved a U.S. citizen lessens its force as
applied to this case. Dissent at 5.
The second main difference between this case and Bow-
man – that this case involves immigration offenses rather
than frauds against the United States – shows that Bowman
applies with even greater force to § 1324(a). Fraud against
the United States does not necessarily concern the national
security and foreign affairs of the United States, unlike
§ 1324(a). Moreover, there is no obvious reason why frauds
against the United States, simpliciter, would occur overseas,
14
apart from the expectation that the Emergency Fleet Corpo-
ration would engage in extensive overseas operations. How-
ever, there is every reason to think that much of the conduct
that § 1324(a) criminalizes occurs beyond the borders of the
United States. In reaching its conclusion that the fraud
statute before it in Bowman applied extraterritorially, the
Supreme Court recited several other statutes, not expressly
territorial, but which might by the very nature of the crime
outlawed be supposed to apply extraterritorially. Among
these, Chief Justice Taft, for the Court, noted the punishment
of a consul who knowingly certified a false invoice, the forging
or altering of a ship’s papers, the enticing of desertions from
naval service, and the bribing of a United States officer in
civil, military, or naval service. As to all of these, the Court
noted that Congress ‘‘clearly’’ intended the locus of the crime
to be in foreign countries, on the high seas, or otherwise
extraterritorial. 260 U.S. at 99. In short, Bowman is a most
persuasive precedent for a conclusion that § 1324(a) applies
extraterritorially.
The dissent’s attempt to distinguish Bowman in other
respects is unpersuasive. The dissent opines that Bowman is
distinguishable because unlike this case, Bowman and other
internationally focused statutes concern crimes that would
‘‘harm the United States government even if [they were]
completed abroad,’’ dissent at 6, and because in this case, the
harm is ‘‘less direct and less immediate.’’ Id. Such policy
reasoning is for Congress, not this Court, in the first instance.
Anyway, it is difficult to see how the harm threatened by
attempted illegal immigration is any less ‘‘direct and immedi-
ate’’ than, say, the crime of conspiring to commit a terrorist
act against an American target. The border-control statutes
at issue here are ‘‘not logically dependant on their locality’’ in
the same sense that the fraud offense against the United
States was not in Bowman: they have many obvious extrater-
ritorial applications.
Like the statute at issue in Bowman, § 1324(a), by its
terms, applies to much extraterritorial conduct. Subsections
(a)(1)(A) and (a)(2) of that provision both proscribe ‘‘attempts
to bring’’ aliens ‘‘to the United States.’’ Many incomplete
15
attempts occur outside the territorial jurisdiction of the Unit-
ed States. ‘‘Bringing’’ someone suggests entry – or at least
physical proximity. Because an alien will not be in the
United States if the attempt is incomplete, the offender will
ordinarily also be outside the United States during the at-
tempt. This is true even if the government foils many
incomplete attempts at the borders of the United States.
That many attempts to bring someone into the United States
will occur outside the United States is strongly suggestive
that these subsections and their neighbors apply, as a matter
of ordinary language, to extraterritorial acts. For this rea-
son, we disagree with the dissent that the text of § 1324(a) is
equally amenable to a purely domestic reading in light of
Bowman.
Appellants’ response to this argument is not persuasive.
Appellants’ counsel at oral argument argued that any sub-
stantive offense may be joined with an attempt statute;
therefore, they claim, this reasoning would eviscerate the
presumption against extraterritorial application of statutes,
since any substantive statute could have extraterritorial appli-
cation simply by being joined with an attempt statute. In
fact, our holding will create no such sweeping precedent.
The attempt provisions of § 1324(a) have extraterritorial
application not because they are attempt crimes, but rather
because offenders will often be outside the United States
when they attempt to commit the crime. This feature of
§ 1324(a) does not result not from the fact that it punishes
attempts. It results from the fact that the crime involves
transporting aliens into the United States.
The forfeiture provision applicable to § 1324(a) bolsters the
inference that § 1324(a) applies extraterritorially. It pro-
vides:
Any conveyance, including any vessel, vehicle, or aircraft,
which has been or is being used in the commission of a
violation of subsection (a) of this section shall be seized
and subject to a forfeiture.
8 U.S.C. § 1324(b)(1). The breadth of this provision strongly
suggests that subsection (a) itself has extraterritorial applica-
16
tion. Vessels, vehicles, and aircraft used in committing viola-
tions of subsection (a) are often used internationally, as
transporting illegal immigrants requires movement from one
country to another. Therefore, § 1324(b)(1) itself has extra-
territorial application. It seems unlikely that Congress would
give the government broad power to seize the conveyances
used to effect illegal immigration in subsection (b)(1) without
simultaneously conferring the power, in subsection (a), to
punish the offenders operating those conveyances internation-
ally. Congress would not, for example, have given the execu-
tive the power to seize ships abroad if it were not also
possible to convict those operating the ships abroad, and it is
a traditional canon of statutory construction to construe relat-
ed statutory provisions in similar fashion. Our reasoning on
this score is, therefore, not ‘‘circular,’’ dissent at 10; our point
is that such a reading would be textually strange in light of
the independent fact that (b)(1), as the dissent does not deny,
applies extraterritorially. Reading § 1324(a) to have extra-
territorial application thus harmonizes these related provi-
sions.
Finally, the prohibition on encouraging or inducing illegal
immigration, § 1324(a)(1)(A)(iv), also has many natural extra-
territorial applications. Certainly it is possible to induce a
potential illegal immigrant to come to the United States from
within the United States, as appellants and the dissent em-
phasize, but it is obviously much easier to do so when in
proximity to the immigrant. It is also possible to conspire to
induce illegal immigration into the United States from any-
where in the world; but, again, it is easier to do so outside
the United States, in proximity to those who carry out the
plot. This provision therefore by its terms contemplates
application to much extraterritorial conduct.
Nothing in Sale and Arabian Oil Co. compels the conclu-
sion that § 1324(a) applies only domestically. Those deci-
sions involved very different statutes. Although Sale also
involved an immigration statute, that statute was crucially
different from § 1324(a). The statute in Sale, 8 U.S.C.
§ 1253(h), governed deportation proceedings. The Court,
quite apart from the presumption against extraterritorial
17
application, read this provision, by its terms, to apply only to
domestic deportation proceedings and ‘‘contemplated that
such proceedings would be held in the country,’’ as the statute
referred specifically to the Attorney General, a domestic
official, and the Attorney General was not authorized to
conduct deportation proceedings outside of the country. 509
U.S. at 173. In contrast, § 1324(a) is not fundamentally
domestic in focus, but has a great many international applica-
tions.2
Similarly, the statute in Arabian Oil Co. involved ‘‘boiler-
plate’’ language ‘‘which can be found in any number of
congressional Acts, none of which have ever been held to
apply overseas.’’ 499 U.S. at 250-51. The objective evidence
of extraterritorial application the Court found lacking there,
in contrast, is present in § 1324(a). The language of
§ 1324(a) is distinctive, not boilerplate, and applies to a great
many acts that one customarily would expect to occur over-
seas.
The Supreme Court’s recent decision in F. Hoffman-La
Roche Ltd. v. Empagran S.A., 124 S. Ct. 2359 (2004), dissent
at 2, is not to the contrary. Empagran was an international
price-fixing antitrust suit against several foreign and domestic
vitamin manufacturers and distributors. Id. at 2364. The
Court held that plaintiffs’ suit failed to state a claim under
U.S. antitrust statutes, assuming that plaintiffs’ suit only
2 The Sale Court stated that even if it did not read the act by its
terms to apply only to ‘‘strictly domestic procedures, the presump-
tion that Acts of Congress do not ordinarily apply outside our
borders would support’’ a purely domestic interpretation of the
relevant statute. 509 U.S. at 173. Even if the language of the
statute did not apply solely to ‘‘domestic procedures,’’ however, that
does not change the fact that this language referred specifically to
the Attorney General, a domestic official, and that the Court applied
the presumption to that statute as it was written, not to some
hypothetical statute that omitted those words. Our point is that
these words are very different from the language in the statute at
issue here and therefore that our application of the presumption
compels the conclusion that § 1324(a) applies to extraterritorial
conduct.
18
alleged international anticompetitive effects that were com-
pletely independent from any adverse domestic effects. Id.
at 2366-72. The Court rejected plaintiffs’ argument that the
‘‘more natural reading’’ of the statutes was that they could
state a claim solely based on such effects, because of the
presumption against applying statutes extraterritorially and
because the Court read the statutes to permit, but not
require, either a foreign or domestic reading. Id. at 2366,
2372.
The Supreme Court’s rejection of plaintiffs’ argument is
consistent with our textual analysis of § 1324(a). In Empa-
gran, the Court assumed for purposes of analysis that plain-
tiffs’ suit alleged foreign conduct that lacked any domestic
nexus whatsoever. The Court acknowledged that ‘‘our courts
have long held that application of our antitrust laws to foreign
anticompetitive conduct is nonetheless reasonable, and hence
consistent with the principles of prescriptive comity, insofar
as they reflect a legislative effort to redress domestic anti-
trust injury that foreign anticompetitive conduct has caused.’’
id., at 2366-67 (quoting United States v. Aluminum Co., 148
F.2d 416, 443-44 (2d Cir. 1945) (L. Hand, J.) (citing, among
other cases, United States v. Bowman)), even though no
express language in those laws made such foreign conduct
unlawful. That long-standing recognition that the antitrust
laws apply to such foreign conduct that impinges on domestic
affairs supports our interpretation of the statute before us, as
the offenses before us have such effects.
Nor are we persuaded by appellants’ and the dissent’s
citation to the Maritime Drug Law Enforcement Act, 47
U.S.C. App. §§ 1901-03. This act criminalizes the manufac-
ture, distribution, and possession of controlled substances,
and explicitly applies to extraterritorial acts. Id. § 1903(a),
(h). Appellants argue, and the dissent repeats, that because
this statute is similar to § 1324(a), yet explicitly applies
extraterritorially, we should infer from the absence of the
same explicit statement in § 1324(a) that it does not apply
extraterritorially.
19
We do not find it surprising that Congress chose to use
more explicit language specifying extraterritorial application
in the Maritime Drug Law Enforcement Act than it did in
§ 1324(a). A border-control statute is more outward-looking
than is a prohibition on drug manufacturing. That may well
be why Congress also thought it necessary to specify explicit-
ly in the Enforcement Act that ‘‘trafficking in controlled
substances aboard vessels is a serious international problem.’’
46 U.S.C. App. § 1902. The international focus of § 1324(a),
in contrast, is more obvious. Although appellants are correct
that, where Congress uses different language in otherwise
similar provisions, it is wise to presume that Congress means
different things, § 1324(a) and the Enforcement Act are not
sufficiently otherwise similar to invoke that reasoning.
We recognize that our holding as to the extraterritorial
application of the attempt provisions of § 1324(a) conflicts
with Yenkichi Ito v. United States, 64 F.2d 73, 75 (9th Cir.
1933). The Ninth Circuit rested this holding on its assump-
tion that ‘‘there is nothing in [§ 1324(a)] to indicate that
Congress intended it to be effective outside of the recognized
territorial limits of the United States.’’ Id. As we have
discussed, we disagree.
Our dissenting colleague relies on the legislative history of
§ 1324(a), dissent at 12-13, citing the 1903 congressional act
that added the attempt provision of § 1324(a) and the recodi-
fication of that act in 1917, and arguing that there is nothing
in this history that ‘‘suggest[s] that the 1903 substitution of
the term ‘attempt’ for ‘aid’ was intended to expand the
bringing offense extraterritorially,’’ dissent at 13. Such si-
lence proves little, in light of the fact that, as we have
discussed, the evidence is apparent from the text of § 1324(a).
The same can be said of the silence the dissent cites in the
legislative history of the encouragement/inducement provision
of § 1324(a). Dissent at 13-15.
Second, the dissent points out that the Ninth Circuit hand-
ed down its decision in Yenkichi Ito in 1933, and that Con-
gress has nowhere attempted to correct that understanding in
subsequent amendments to § 1324(a). Dissent at 13-15.
20
This argument fails on two fronts. For one, the Supreme
Court decided United States v. Bowman in 1922, a case that
the Ninth Circuit did not cite, so it is unclear whether
Congress’s silence was the result of its understanding that
the plain textual evidence it had supplied already made the
extraterritorial application of the statute clear under the
reasoning of Bowman. For another, other elderly Court of
Appeals cases, including cases from the Ninth Circuit, have
long held the closely related inducement section of the statute
capable of extraterritorial application. Most glaringly, the
Fifth Circuit held as much in Claramont v. United States, 26
F.2d 797 (5th Cir. 1928) (per curiam), a decision that, like
Yenkichi Ito, was the law of a circuit whose decisions gov-
erned large portions of the U.S. coast. See also United
States v. Nunez, 668 F.2d 10, 12-13 (1st Cir. 1981) (per
curiam) (same, citing Castillo-Felix); United States v. Castil-
lo-Felix, 539 F.2d 9, 12-13 (9th Cir. 1976) (same, citing
Bowman); United States v. Correa-Negron, 462 F.3d 613, 614
(9th Cir. 1972) (per curiam) (same, citing Claramont). There-
fore, the state of the law dating from 1922 on the extraterrito-
rial application of § 1324(a) is, at best, ambiguous, and at
worst, contrary to the dissent’s position in view of Bowman.
Congress’s silence on this point thus does not support the
dissent’s reading of the statute.
Third, the dissent cites a single sentence from a letter from
the Department of Justice commenting on the current version
of the Immigration and Control Act of 1986, then pending
before the House Committee on the Judiciary, which the
Committee appended to a House Report on the bill. The
dissent says that the Department said in this sentence that it
‘‘would not prosecute the attempted bringing offense outside
of the United States.’’ Dissent at 14-15. Citing two Court of
Appeals cases, as we read the letter, the Department opined
that the encouragement/inducement provision of § 1324(a) ‘‘is
the only provision in [that section] that has extra-territorial
application.’’ H.R. Rep. No. 99-682, pt. 1, at 112 (1986).
Putting to one side that this piece of history contradicts the
dissent’s conclusion that the encouragement/inducement sec-
tion does not have extraterritorial application, we think it
21
does not stand for the proposition that the encouragement/in-
ducement provision of § 1324(a) applies only domestically.
The only support the Department offered for its opinion was
a citation to two Court of Appeals cases, both of which held
only that the encouragement/inducement provisions of
§ 1324(a) did not have extraterritorial application. See id.
(citing Nunez, Castillo-Felix, and ‘‘cases cited therein’’).
Those cases and the cases those cases cited, however, said
nothing about whether the attempt provision of § 1324(a) had
extraterritorial application. In light of that silence, we think
that the Department was merely stating its opinion that no
court cases have held the attempt provisions to have extrater-
ritorial application. It was not stating its official interpreta-
tion of § 1324(a). We therefore give this piece of legislative
history little weight.
We close with a concluding observation on the alarming
consequences the dissent sees in our holding. Dissent at 17-
19. The dissent raises the specter that our holding that
§ 1324(a) applies extraterritorially risks creating conflicts
with the laws of other nations, and that we should not do so
given our lack of foreign policy expertise. As we have
discussed, we have confined our analysis to interpreting the
words of Congress in light of the presumption against extra-
territorial application, not foreign policy analysis. But it is
worth pointing out that, in any event, our holding does not
pose a significant risk of creating any such conflict. While we
lack foreign policy expertise, the executive branch, the branch
of government primarily concerned with foreign affairs and
the branch charged with administering § 1324(a), has it in
spades. The practical consequence of our holding is merely
to leave the question of how best to navigate such potential
conflicts to the executive, ‘‘the sole organ of the federal
government in the field of international relations.’’ United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(1936). The executive’s expert exercise of prosecutorial dis-
cretion and foreign diplomacy should be more than sufficient
to avoid the conflicts the dissent thinks our holding risks
creating.
22
IV.
Although the dissent believes that ‘‘the combination of a
statutory text that permits but does not require extraterrito-
rial application and a silent legislative history is not enough of
a basis for a court to decide to apply’’ a statute extraterritori-
ally, dissent at 16, the same textual evidence used by the
Supreme Court in Bowman and § 1324(a)’s international
focus suggest otherwise. For those two reasons, and others
expressed above, appellants’ convictions are affirmed.
1
RANDOLPH, Circuit Judge, concurring: I join all of the
court’s opinion except its statement that by pleading guilty a
defendant waives any claim that the offense to which he pled
guilty is not a crime. United States v. Idowu, 105 F.3d 728
(D.C. Cir. 1997), suggests a view contrary to the court’s. The
issue was neither briefed nor argued and, for the reasons the
court gives, did not need to be reached.
1
ROGERS, Circuit Judge, dissenting: The court today inter-
prets two provisions in the Immigration and Nationality Act
as criminalizing conduct outside of the United States by
foreign nationals. In doing so, the court ignores clear in-
struction from the Supreme Court that Congress must clearly
state its intention to apply statutes extraterritorially and that
otherwise courts are to interpret ambiguous statutes as terri-
torially limited. Congress has not clearly stated its intent to
apply the attempted bringing and the encouragement/induce-
ment provisions of 8 U.S.C. § 1324 extraterritorially in order
to protect United States borders, and the structure and
operation of the two provisions, in which this court finds an
implicit command of extraterritorial application, are consis-
tent with the territorial limitation that is generally presumed
of statutes. Moreover, the legislative history is clear that
Congress did not intend the attempted bringing provision to
apply outside the territorial jurisdiction of the United States.
Accordingly, because there is no clear ‘‘affirmative evidence,’’
Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 176
(1993), to overcome the presumption against applying a stat-
ute extraterritorially, the indictments under 8 U.S.C.
§§ 1324(a)(1)(A)(i), (a)(1)(A)(iv), and (a)(1)(A)(v) should have
been dismissed, and I therefore respectfully dissent.
I.
The Supreme Court has long upheld a canon of statutory
construction that ‘‘legislation of Congress, unless a contrary
intent appears, is meant to apply only within the territorial
jurisdiction of the United States.’’ EEOC v. Arabian Ameri-
can Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros.,
Inc. v. Filardo, 336 U.S. 281, 285 (1949)). In two recent
cases, Sale, 509 U.S. 155, and Arabian American Oil Co., 499
U.S. at 248–59, the Court has re-emphasized this longstand-
ing presumption in uncompromising terms: laws are deemed
to only apply within the territorial jurisdiction of the United
States unless Congress provides ‘‘affirmative evidence’’ to the
contrary. See Sale, 509 U.S. at 176. Such evidence must be
‘‘clearly expressed.’’ Arabian American Oil Co., 499 U.S. at
248. While the canon in part has roots, as this court notes,
see Opinion at 10–11, in the recognition that Congress ‘‘is
2
primarily concerned with domestic conditions,’’ Arabian
American Oil Co., 499 U.S. at 248, it also reflects ‘‘the desire
to avoid conflict with the laws of other nations.’’ Sale, 509
U.S. at 174. Decisions about when to subject foreign nation-
als and foreign conduct to the United States’ laws involve
delicate questions of jurisdiction and international relations,
and courts, which lack the foreign policy expertise of the
legislative and executive branches, must tread carefully and
err on the side of limiting statutes to domestic application if
there is doubt as to Congress’ intentions. This Term the
Supreme Court re-emphasized in F. Hoffman–La Roche Ltd.
v. Empagran S.A., 124 S. Ct. 2359, 2366 (2004), that it
‘‘ordinarily construes ambiguous statutes to avoid unreason-
able interference with the sovereign authority of other na-
tions.’’ If a statute is unclear and reasonably permits the
reading that it applies only territorially, the court should not
read it to apply abroad, even if doing so might be ‘‘the more
natural reading of the statutory language.’’ Id. at 2372.
Nothing in the Supreme Court’s opinions in Sale and Arabian
American Oil, both of which used broad and generalized
language, or the recent opinion in Empagran, indicates that
the Court was doing anything other than announcing, and
strengthening, a generally applicable rule of statutory con-
struction.
This court, however, now reaches a holding that effectively
eviscerates this instruction. Treating the canon as nothing
more than a ‘‘contextual rule’’ or ‘‘linguistic’’ principle, it
states that the presumption against extraterritoriality can be
overcome so long as there are ‘‘contextual reasons’’ for disre-
garding it. Specifically, this court’s principal argument is
that the canon’s requirement of ‘‘affirmative evidence’’ is
satisfied when a statute concerns ‘‘more than merely ‘domes-
tic conditions.’ ’’ Op. at 12. In other words, if a statute deals
with a subject area that is not purely domestic, the court
reasons, that provides the ‘‘context’’ indicating Congress’
intent to apply the statute extraterritorially. See id. This
cramped view of the canon is circular, making its applicability
depend in the first instance on whether a statute is ‘‘domes-
tic’’ when that is the question that application of the canon is
supposed to resolve. Moreover, the court’s ‘‘contextual rea-
3
sons for reading the text otherwise’’ standard lacks a basis in
the jurisprudence of the Supreme Court, which has stated
that the standard for overcoming the canon against extrater-
ritoriality is the higher hurdle of ‘‘affirmative evidence,’’ Sale,
509 U.S. at 176, and must be ‘‘clearly expressed.’’ Arabian
American Oil Co., 499 U.S. at 248. The court’s premise that
a non-domestic subject itself supplies the ‘‘affirmative evi-
dence’’ sufficient to overcome the canon, see Op. at 11–12, is
in direct conflict with the Second Circuit, which explained in
Kollias v. D & G Marine Maintenance, 29 F.3d 67 (2nd Cir.
1994), in light of the Supreme Court’s recent decisions that
‘‘seem to require that all statutes, without exception, be
construed to apply within the United States only, unless a
contrary intent appears’’ (as it did in the statute at issue,
which applied ‘‘on the high seas,’’ id. at 73–74), that a non-
domestic subject matter does not suffice to render inapplica-
ble the canon against extraterritoriality. Id. at 71 (emphasis
in original). While certain subject areas (such as the Immi-
gration and Nationality Act, at issue in Sale and the instant
case, or maritime law as in Kollias) may imply that Congress
is more than ‘‘primarily concerned with domestic conditions,’’
Arabian American Oil Co., 499 U.S. at 248, they do nothing
to alleviate the prudential concerns embodied in the canon,
which the court today ignores.
The prudential concerns behind the canon are particularly
significant in the criminal context, where the extraterritorial
application of the criminal law of the United States may
criminalize conduct that is legal in the countries in which it is
committed, without providing corresponding constitutional
protections against unreasonable searches and seizures, and
the use of force at the arrest stage. Cf. U.S. v. Verdugo–
Urquidez, 494 U.S. 259 (1990). Exposing foreign nationals to
the full coercive force of the United States’ criminal laws
without many of the corresponding constitutional protections
is a serious step, not only for the individuals charged but also
for their host countries, which have interests both in their
own jurisdiction and in the freedom of their citizens who,
under their laws, have often committed no crime. Such a
serious and consequential step, if it is to be taken at all, must
be taken by Congress, and must be taken by Congress
4
clearly; the decision is not left for courts to intuit on the basis
of statutes that can plausibly be read either way.
Furthermore, the court’s holding that the canon can be
overcome by a statute’s non-domestic focus runs contrary to
Sale, and its attempt to distinguish the case is unconvincing.
See Op. at 16–17. In Sale, the Supreme Court applied the
canon to a provision of the Immigration and Nationality Act
(‘‘INA’’) in order to determine, as here, the applicability of
that Act to aliens interdicted on the high seas. The case
highlights the wide applicability of the canon, as well as how
high the hurdle of ‘‘affirmative evidence’’ is. The provision at
issue in Sale prohibited the ‘‘return’’ of refugees before giving
them an asylum hearing, in part to implement the United
Nations Convention Relating to Status of Refugees, which the
United States has ratified. Implementation of a treaty defin-
ing the United States’ obligations with respect to refugees is
hardly a ‘‘domestic condition,’’ notwithstanding this court’s
valiant attempt to frame it as such. See Op. at 16–17.
Absent the canon against extraterritoriality, the ‘‘natural
inference,’’ Op. at 12, or ‘‘more natural reading,’’ Empagran,
124 S.Ct. at 2372, would be that if the United States is
forbidden by treaty from ‘‘return[ing]’’ refugees to their home
country without a hearing, ‘‘contextual reasons’’ would sug-
gest that the functionally equivalent step of intercepting them
prior to landing and returning them to their home countries
would equally violate the United States’ obligations under the
treaty and thus under the implementing statute. Notwith-
standing this inference, the Supreme Court held that the
relevant provision of the INA was inapplicable because Con-
gress had not affirmatively extended its reach beyond United
States borders. In Sale, the Court expressly stated that its
holding did not depend, as this court suggests, see Op. at 17
n.2, on the fact that the INA referred to deportation proceed-
ings and referenced the Attorney General, a domestic official.
Rather, the Supreme Court stated that ‘‘[e]ven if [the provi-
sion respecting the return of refugees] were not limited to
strictly domestic procedures, the presumption that Acts of
Congress do not ordinarily apply outside our borders would
5
support an interpretation TTT as applying only within United
States territory.’’ 509 U.S. at 173.
Sale should put to rest the court’s contention that the
canon against extraterritoriality is satisfied by legislation
touching upon non-domestic concerns. And as discussed,
prudential factors favoring application of the canon to crimi-
nal provisions of the INA are at least as strong, if not
stronger, than those for applying it to civil provisions.
The court’s reliance on United States v. Bowman, 260 U.S.
94 (1922), to support its theory that a statute’s non-domestic
focus overcomes the presumption against extraterritoriality,
is misplaced. See Op. at 12–15. The Supreme Court in
Bowman dealt with the extraterritorial applicability to United
States citizens of offenses against the United States govern-
ment, noting that the government has a right to defend itself
against such crimes ‘‘especially if committed by its own
citizens, officers, or agents,’’ Bowman, 260 U.S. at 98, whom
the court ruled could be held to answer to the ‘‘crime against
the government to which they owe allegiance.’’ Id. at 102.
Bowman left open whether, as here, such laws should be read
as applying extraterritorially to foreign nationals without
express Congressional authorization, as one of the co-
defendants in Bowman, a British national, was not before the
Court. Id. at 102–03. While this court writes off this
distinction as ‘‘irrelevant,’’ Op. at 13, the distinction substan-
tially weakens the strength of the inference that can be
drawn from ‘‘context.’’ The prudential concerns behind the
canon against extraterritoriality, in light of the Supreme
Court’s subsequent instruction, counsel against expanding the
Bowman rationale to non-citizens. Even were nothing to
prevent Congress from criminalizing acts by foreign nationals
abroad, Bowman is instructive about which inferences are
reasonable to draw, and it is reasonable to infer that Con-
gress is more likely to assert jurisdiction over its own citizens
abroad than over foreign nationals abroad, given the jurisdic-
tional and foreign policy implications of such a step.
The different nature of the offenses at issue further under-
mines the analogy to Bowman. The rationale behind Bow-
6
man was that some crimes, such as defrauding the United
States government, because they directly harm the United
States government in a manner ‘‘not logically dependent on
their locality,’’ 260 U.S. at 98, are such that it is obvious that
in declaring them to be crimes Congress intends to prohibit
them everywhere. While this may be true of a class of
crimes such as terrorism against American targets, see Unit-
ed States v. Yousef, 327 F.3d 56, 86 (2nd Cir. 2003), or the
murder of United States agents abroad, see United States v.
Felix–Gutierrez, 940 F.2d 1200, 1204–05 & n.3 (9th Cir. 1991),
the offenses charged against Garcia and his two co-
defendants under 8 U.S.C. § 1324 are of a different character.
The harm that § 1324 prevents is the unauthorized entry of
aliens into the United States, which is quite ‘‘logically depen-
dent on [its] locality.’’ Bowman, 260 U.S. at 98. Extraterri-
torial predicate acts occurring thousands of miles from the
United States such as those charged here harm the United
States only by a far more attenuated causal chain, by making
it more likely that, at some point in the future, unauthorized
aliens may attempt illegal entry into the United States.
In Bowman and cases like Yousef and Felix–Gutierrez,
courts have departed from the presumption against extrater-
ritoriality only because a crime (such as a terrorist attack or
the murder of a United States agent) would harm the United
States government even if it was completed abroad. Given
the nature of the crime, the courts inferred that Congress
must have intended to protect the United States government
from harm irrespective of its origin. The less direct and the
less immediate the harm to the United States from extraterri-
torial conduct is, the weaker this inference becomes, and the
more likely it is that Congress would consider countervailing
factors to outweigh any interest in extraterritorial application.
Congress might adopt, on a legislative record more complete
than the one now before the court, the court’s conclusion that
extraterritorial application of 8 U.S.C. § 1324 is required to
safeguard United States borders more effectively. See Op. at
12. But the necessity of such an approach calls for a policy
conclusion that is hardly so obvious that the court can attrib-
ute it to Congress solely on the basis of the offenses at issue
7
here, as it can where the harm is direct and immediate. The
extraterritorial conduct of Garcia and his two codefendants
ended in Guatemala over 2,500 miles from the United States
and over 100 miles from Mexico, where the migrants intended
to travel. Under the circumstances, there is not enough to
warrant a departure from the ‘‘longstanding principle of
American law’’ that statutes only apply domestically ‘‘unless a
contrary intent appears.’’ Arabian American Oil Co., 499
U.S. at 248.
II.
The requirement of ‘‘affirmative evidence’’ that the Su-
preme Court set forth in Sale, 509 U.S. at 176, rather than
this court’s looser ‘‘contextual reasons for reading the text
otherwise’’ test, see Op. at 11, compels the conclusion that
neither 8 U.S.C. § 1324(a)(1)(A)(i) nor (a)(1)(A)(iv) applies
extraterritorially, nor, by extension, does the conspiracy of-
fense in (a)(1)(A)(v). While the statute can be read to reach
predicate acts in foreign countries that could eventually lead
to the entry of undocumented aliens into the United States, it
is equally plausible from the text of the statute and the
policies behind it that Congress had a less ambitious enforce-
ment scheme in mind. This latter possibility is confirmed by
the history of the attempt provision in the illegal bringing
offense, 8 U.S.C. § 1324(a)(1)(A)(i), which was meant to do no
more than ensure that persons transporting unauthorized
aliens to the United States would not be absolved from
liability by an immigration official’s refusal, upon arrival, to
let the aliens enter. As to the encouragement/inducement
offense, 8 U.S.C. § 1324(a)(1)(A)(iv), Congress has been silent
as to extraterritoriality, and absent a clear statement from
Congress or any jurisdictional limits, the purpose behind the
canon against extraterritoriality counsels against reading the
statute to have such breadth.
A.
The plain text of § 1324 contains no affirmative statement
that the acts it forbids are also forbidden when they occur in
8
other nations or on the high seas. This absence alone is
meaningful, although not entirely fatal. The presumption
against extraterritoriality, while strong, does not quite have
the force of a clear statement rule; the Supreme Court in
Sale consulted legislative history when the provision of the
INA at issue contained no clear statement of Congress’ desire
to apply it outside the United States. See Sale, 509 U.S. at
174–77. It is instructive, however, that in the context of
preventing the entry of illegal drugs into the United States, a
subject that raises similar policy questions about the extent to
which the United States wishes to protect its borders by
preemptively extending its laws into the high seas or other
countries, Congress has criminalized extraterritorial acts on
the face of the relevant statute. See Maritime Drug Law
Enforcement Act, Pub. L. No. 96–350 (1980) (codified as
amended at 46 U.S.C. app. §§ 1901–04 (2004)) (‘‘Maritime
Drug Act’’). The Maritime Drug Act is an example of what a
statute looks like when Congress intends to apply it extrater-
ritorially: it contains an express provision dictating that it ‘‘is
intended to reach acts TTT committed outside the territorial
jurisdiction of the United States,’’ § 1903(h); it provides for
the jurisdictional limit that it does not apply to foreign
nationals on the vessels of foreign nations that do not consent
to the enforcement of U.S. law, § 1903(a); and it provides
jurisdiction and venue rules for defendants subsequently
brought into the United States to stand trial, § 1903(f). By
contrast, 8 U.S.C. § 1324 contains none of these elements.
The court casts the Maritime Drug Act aside, speculating that
Congress was addressing a less ‘‘outward-looking’’ statute
than a border control statute, see Op. at 18–19, but this
distinction is hardly persuasive. The ‘‘natural inference,’’ cf.
Op. at 12, of a statute specifically aimed at maritime drug
interdiction would presumably be that it applies on the high
seas, yet Congress still thought it necessary to specify that
the statute has extraterritorial application. 49 U.S.C. app.
§ 1903(h).
Nor are the criminal offenses in 8 U.S.C. §§ 1324(a)(1)(A)(i)
and (a)(1)(A)(iv) of such character as to cause a logical
inference that they must take place abroad. The title of
9
§ 1324, ‘‘bringing in and harboring certain aliens,’’ as well as
the substantive offenses in (a)(1)(A)(i) (‘‘bringing’’),
(a)(1)(A)(ii) (‘‘transport[ing] TTT within the United States’’),
and (a)(1)(A)(iii) (‘‘harbor[ing] or shield[ing] from protection’’)
imply the opposite, as one generally cannot ‘‘bring[ ] in,’’
‘‘bring TTT to the United States,’’ ‘‘transport TTT within the
United States,’’ or ‘‘harbor’’ aliens without also being in the
United States oneself. The only substantive offense that it is
possible to commit outside of the United States is the encour-
agement/inducement offense in (a)(1)(A)(iv). Yet it is equally
possible to commit the same acts domestically, such as by
advertising the availability of jobs for undocumented immi-
grants or by telephonically inviting foreign acquaintances
illegally to join the inducer in the United States. While
Congress could have wanted to criminalize both, the text of
(a)(1)(A)(iv) does not dictate such a conclusion.
To overcome this difficulty, the court finds an implicit
command of extraterritorial application in the inchoate of-
fense of attempted bringing in (a)(1)(A)(i) (‘‘attempt[ing] to
bring to the United States’’). The court offers three reasons
for this reading, the first textual, the second intra-textual, the
third rooted in policy; none is persuasive. The textual
argument, which reasons that ‘‘attempts’’ usually occur
abroad because they become completed crimes upon the
aliens’ entry into the United States, see Op. at 14–15, ignores
the fact that attempts that fail at the border or in territorial
waters have entered the territorial jurisdiction of the United
States without completing the substantive crime. Aliens
intercepted at the border or in territorial waters have not, for
many legal purposes, entered the United States. The Su-
preme Court explained in Sale:
Under the INA, both then and now, those seeking ‘‘ad-
mission’’ and trying to avoid ‘‘exclusion’’ were already
within our territory (or at its border), but the law treated
them as though they had never entered the United
States at all; they were within United States territory
but not ‘‘within the United States.’’
10
509 U.S. at 175. While the attempt provision in
§ 1324(a)(1)(A)(i) is open to the court’s reading, it can just as
plausibly refer to instances where an attempt to bring undoc-
umented aliens into the United States fails because the aliens
are intercepted at the border or in territorial waters (if the
attempt involves surreptitious entry), or refused entry by
immigration officials (if the attempt involves fraudulent en-
try). While the record does not contain any statistics about
United States border control efforts, such interdiction at the
border would seem to be the place where many attempts fail
that subsequently become the basis for (a)(1)(A)(i) prosecu-
tions. Because the plain text of (a)(1)(A)(i) is amenable to
either reading, it is not ‘‘affirmative evidence’’ of extraterrito-
rial application.
The court’s second, intra-textual argument finds a com-
mand of extraterritorial application in the forfeiture provi-
sions at 8 U.S.C. § 1324(b)(1), which authorize seizure of ‘‘any
vessel TTT being used in the commission of a violation of
subsection (a).’’ See Op. at 15–16. The court reasons that
(b)(1) applies extraterritorially, and therefore (a) must as
well, for otherwise the two subsections are not in harmony.
See Op. at 16. But that reasoning is circular; by its plain
terms, (b)(1) only applies to a vessel ‘‘being used in the
commission of a violation of subsection (a)’’; in other words,
(b)(1) only applies extraterritorially if (a) does, and vice versa.
Moreover, (b)(1) has a perfectly sensible meaning if
(a)(1)(A)(i) applies only territorially: it authorizes seizure of
vessels intercepted in territorial waters, vessels in port where
immigration officials detect illegal entrants as they disem-
bark, and, arguably, vessels intercepted on the high seas in
connection to a conspiracy that extends into the United
States. It is not surprising that the forfeiture provisions
would be limited to property otherwise within United States
jurisdiction. Section (b)(1) counsels against, not in favor of,
extraterritorial application of (a)(1)(A)(i). The consequence to
(b)(1) of reading (a)(1)(A)(i) extraterritorially highlights the
dangers of disregarding the canon against extraterritoriality.
Because this court’s reading leaves the statute with no juris-
dictional limits, it would authorize the seizure and forfeiture
11
of foreign property within or subject to the jurisdiction of
other countries–-such as, for instance, the seizure of a ship
flying a foreign flag on the high seas, or even within the
territorial waters of a foreign country. To say that this
creates ‘‘conflict with the laws of other nations,’’ Sale, 509
U.S. at 174, not to mention with international treaties to
which the United States is a signatory, see, e.g., Convention
on the Law of the Sea, April 29, 1958, 13 U.S.T. 2312 (entered
into force Sept. 30, 1963), would be an understatement.
The court’s third, policy-based argument is that because
‘‘the terrorist attacks of September 11, 2001’’ remind us that
‘‘border-control policies are of crucial importance to [ ] nation-
al security and foreign policy,’’ the 1903 Congress that enact-
ed the provision must have intended it to reach extraterritori-
ally in order to protect the United States’ borders. Op. at 12.
Congress could, of course, adopt the same policy conclusion
and decide that criminalizing extraterritorial predicate acts
(such as, in the instant case, covert travel to Guatemala) is a
necessary component of border control. But an important
purpose behind the presumption against extraterritoriality is
that such decisions are to be made by Congress, and not the
courts. The record before the court contains nothing to
support the premise that territorial enforcement of the stat-
ute would be so inadequate that Congress could not have
intended it; for example, there is no evidence on which to
evaluate the relative effectiveness of different mechanisms of
immigration enforcement, such as how heavily immigration
authorities rely on interdiction in foreign countries rather
than at the United States border, or on interdiction on the
high seas vis-a-vis in territorial waters; nor is there any
evidence on whether interdiction on the high seas subject to
some other authority, without the threat of criminal sanctions,
is significantly less effective than interdiction with that
threat. The court’s failure to cite even one case in which
§ 1324(a)(1)(A)(i) has been applied extraterritorially under-
cuts its apparent fear that border control will be undermined
by failure to do so.
The unusual circumstances underlying the indictments at
issue hardly suggest that extraterritorial enforcement of
12
§ 1324 plays an integral role in United States border control.
The Jose Alexander II was not intercepted in United States
waters, or close to such waters and or headed towards them,
but was rather intercepted off the southern coast of Gua-
temala, over two thousand five hundred miles from the Unit-
ed States, en route from Ecuador to Guatemala. Nothing in
the record suggests that the Coast Guard deems it necessary
or even useful to patrol waters so distant from United States
shores to detect alien smuggling. The United States vessel
that spotted and intercepted the Jose Alexander II was not a
Coast Guard vessel but a Navy destroyer, the U.S.S. Fife,
that had a Coast Guard Law Enforcement Detachment on
board. The Coast Guard’s involvement was initially humani-
tarian, for purposes of providing food and water to the
migrants and ensuring their safety in reaching shore in
Guatemala. Only after the Jose Alexander II reached Gua-
temala did interviews with the passengers reveal circum-
stances that led to the criminal charges under § 1324.
Moreover, the court’s attempt to read post-September-11th
immigration policy into 8 U.S.C. § 1324 runs aground on the
legislative history of the attempt provision in the illegal
bringing offense. That history shows that Congress’ addition
of the attempt provision was meant to do nothing more than
ensure that those involved in transporting illegal aliens to the
United States would not be absolved from criminal liability
because an immigration official ultimately denied the aliens
entry into the country. The ‘‘bringing’’ offense, currently
codified at § 1324(a)(1)(A)(i), originated in § 6 of the 1891
Immigration Act, Act of March 3, 1891, ch. 551, 26 Stat. 1084
(1891), which made it a misdemeanor to ‘‘bring into or land in
the United States by vessel or otherwise, or [ ] aid to bring
into the United States TTT any alien not lawfully entitled to
enter.’’ This 1891 provision, because it required completion
of the offense, quite plainly did not apply extraterritorially.
The attempt provision was inserted by the 1903 Immigration
Act, Act of March 3, 1903 ch. 1012; Pub. L. No. 57–162; 32
Stat. 1213. The House Report to the 1903 Act explains that
Congress amended the provision to:
13
substitut[e] the word ‘‘attempt’’ for ‘‘aid,’’ the courts
having held that the word ‘‘aid’’ involved the actual
landing of the prohibited alien. Since such an alien is
rejected, the provision must be amended or remain, as it
has been since the decision TTT [,] a dead letter.
H.R. REP. NO. 57–982 at 4 (1902) (emphasis added). In other
words, Congress was responding to court decisions holding
that persons who brought aliens not entitled to enter the
United States could not be held liable under the initial
wording of § 6 when those aliens were denied entry by
immigration officials. Id. There is nothing to suggest that
the 1903 substitution of the term ‘‘attempt’’ for ‘‘aid’’ was
intended to expand the bringing offense extraterritorially;
the amendment was only to ensure that the criminal provision
would apply even when ‘‘such an alien is rejected,’’ id., i.e.,
when, upon reaching the United States, the alien is denied
entry. When Congress enacted the Immigration and Nation-
ality Act of 1952, ch. 477, Pub. L. No. 82–414 (1952), 66 Stat.
163, which consolidated existing immigration statutes and
relocated the bringing offense to § 1324 of the United States
Code, Congress described the 1903 amendment, which insert-
ed the attempt provision, only as intended ‘‘primarily to
codify existing law.’’ H.R. REP. NO. 82–1365 at 14 (1952).
When § 6 of the 1903 Act was recodified, with minor
changes, as § 8 of the 1917 Immigration Act, ch. 29, Pub. L.
No. 64–301; 39 Stat. 874, to prohibit ‘‘any person, including
the master, agent, owner, or consignee of any vessel’’ from
‘‘bring[ing] into or land[ing] in the United States, by vessel or
otherwise, or [ ] attempt[ing], by himself or through another,
to bring into or land in the United States’’ any undocumented
alien, nothing indicates that Congress intended to expand the
scope of the original 1891 law or the 1903 amendment.
Further, in 1933, when the United States prosecuted an alien
smuggler intercepted on the high seas on the theory that he
had attempted to bring unlawful aliens into the United States,
the Ninth Circuit, in Yenkichi Ito v. United States, 64 F.2d 73
(9th Cir. 1933), held that § 8 did not apply extraterritorially
and dismissed the indictment. Not surprisingly, Congress
nowhere tried to correct or express disagreement with the
14
Yenkichi Ito decision, which comported with Congress’ ex-
pressed intent in enacting the 1903 amendment.
The Supreme Court explained in Johnson v. Transp. Agen-
cy of Santa Clara Cty., 480 U.S. 616, 629 n.7 (1987), that
although Congressional ‘‘inaction’’ in the face of a judicial
construction of a statute ‘‘may not always provide crystalline
revelation,’’ that ‘‘should not obscure the fact that it may be
probative to varying degrees.’’ By virtue of the Ninth Cir-
cuit’s geography, Yenkichi Ito has been the law in every state
and territory having contact with the Pacific Ocean for over
seventy years. If Congress had thought it necessary that the
attempted bringing offense apply extraterritorially so as to
make it possible to intercept alien smugglers on the high
seas, it would, particularly if it had shared this court’s fear,
have corrected a decision that removed one of two neighbor-
ing oceans from the statute’s reach. While the court ob-
serves that other circuits, in cases such as Claramont v.
United States, 26 F.2d 797 (5th Cir. 1928) (per curiam), have
upheld the extraterritorial application of the encourage-
ment/inducement offense, see Op. at 20, the inducement of-
fense, unlike the attempted bringing offense, bears no obvious
nexus to the high seas or maritime interdiction. Yenkichi Ito
is the only case to decide whether the attempted bringing
offense under (a)(1)(A)(i) applies extraterritorially, and its
interpretation has been binding over a very large geographic
area for a very long time and never changed by Congress.
Congress has not acted to correct the interpretation in
Yenkichi Ito, moreover, despite being informed by the Justice
Department that it considered itself bound not to prosecute
the attempted bringing offense extraterritorially. When Con-
gress revised § 1324(a) in the Immigration Reform and Con-
trol Act of 1986, Pub. L. No. 99–603, 100 Stat. 3381, the
Justice Department urged Congress to retain the encourage-
ment/inducement offense, which the Department claimed had
‘‘proven to be a useful tool in combatting [sic] alien smug-
gling’’ and ‘‘the only provision TTT that has extra-territorial
application.’’ See H.R. REP. NO. 99–682, pt. 1, at 112 (1986).
The Department thus put Congress on notice that the De-
partment would not prosecute the attempted bringing offense
15
outside of the United States. Despite amending (a)(1)(A)(i)
to correct other court decisions not at issue here, Congress
took no action with respect to (a)(1)(A)(i)’s extraterritorial
application. Congress’ silence on extraterritorial application
of § 1324(a)(1)(A)(i), when confronted with both the Yenkichi
Ito decision and the Justice Department’s 1986 representa-
tion, is deafening.
There are, admittedly, fewer indications of Congressional
intent with respect to the encouragement/inducement offense
in 8 U.S.C. § 1324(a)(1)(A)(iv), which, on its face, is consis-
tent with or without a territorial limitation. The offense
originated in §§ 5–7 of the 1917 Immigration Act, which con-
templated that some prohibited encouragements such as ‘‘ad-
vertisements printed, published, or distributed in any foreign
country,’’ § 6, would occur abroad. It is unclear from the
face of the 1917 statute or the contemporaneous legislative
history, however, whether such extraterritorial acts would
also trigger liability for a foreign national who never set foot
in, or accompanied any unlawful aliens into, the United
States. The prohibitions on ‘‘solicit[ing] the importation or
migration of any day laborer’’ in § 5, and ‘‘soliciting or
attempting to induce, assist, encourage, or solicit any alien to
come into the United States by promise of employment’’ in
§ 6 both imply that Congress’ concern was primarily with
domestic employers. The civil penalties in § 7 of the Act
that related to those ‘‘engaged in the business of transport-
ing aliens to or within the United States’’ became operative
only upon a determination that the defendant ‘‘ha[d] brought
or caused to be brought to a port of the United States any
alien so solicited,’’ id. § 7, although the criminal penalties
under § 7 are the same as those for employers under § 5
and are similarly silent as to when liability is triggered.
Again, the 1952 Immigration and Nationality Act, which
consolidated these offenses into the generic encourage-
ment/inducement offense currently codified at
§ 1324(a)(1)(A)(iv), provides no indication that the simplifica-
tion and consolidation was intended to effect a significant
change in their operation.
Nothing about an encouragement/inducement provision
with a territorial limitation would be illogical. Most such
16
acts, as the court acknowledges, see Op. at 16, presumably
occur abroad, but that cuts against, not in favor of, extraterri-
torial application: there are likely few migrants who are not
encouraged or induced by some third party to make the
journey to the United States before they emigrate from a
foreign country. Congress could have reasonably concluded
that inducements by persons already in the United States,
such as employers promising jobs (as, historically, was the
principal concern in 1917), or residents urging friends and
family members to join them here, pose a greater threat than
encouragement by foreign nationals abroad, because the for-
mer are more likely to provide specific destinations and
credible promises of support and concealment upon arrival.
Or Congress could have concluded, as it did in the Maritime
Drug Act, 46 U.S.C. app. § 1903(a), that jurisdictional and
foreign policy concerns weigh against criminalizing activity by
foreign nationals in foreign jurisdictions, particularly, as here,
where the crime can consist of mere speech and is likely
exceedingly common.
The combination of a statutory text that permits but does
not require extraterritorial application and a silent legislative
history is not enough of a basis for a court to decide to apply
the encouragement/inducement offense in § 1324(a)(1)(A)(iv)
beyond the territorial jurisdiction of the United States.
Courts ‘‘assume that Congress legislates against the backdrop
of the presumption against extraterritoriality.’’ Arabian
American Oil Co., 499 U.S. at 248. As the Supreme Court
instructed in Sale, in refusing to consider a particular amend-
ment to the Immigration and Nationality Act sufficient evi-
dence of Congress’ intent to extend the law extraterritorially,
the possibility that Congress ‘‘might have intended’’ such a
result ‘‘is not a substitute for the affirmative evidence of
intended extraterritoriality that our cases require.’’ 509 U.S.
at 176. See also Empagran, 124 S.Ct. at 2366; Arabian
American Oil Co., 499 U.S. at 250.
B.
By departing from well-established Supreme Court prece-
dent against reading statutes to apply extraterritorially ab-
17
sent ‘‘affirmative evidence,’’ the court’s holding on 8 U.S.C.
§ 1324 stands alone. Other circuit courts of appeal have
upheld convictions for extraterritorial encouragement and
inducement where the alien ultimately entered the United
States, see United States v. Nunez, 668 F.2d 10, 12–13 (1st
Cir. 1981) (per curiam); United States v. Castillo–Felix, 539
F.2d 9, 12–13 (9th Cir. 1976); United States v. Williams, 464
F.2d 599, 601 (2nd Cir. 1972), and in dictum observed the
extraterritorial application of the attempted bringing offense
where a vessel is intercepted in United States waters. See
United States v. Liang, 224 F.3d 1057, 1060 (9th Cir. 2000).
Likewise in Claramont, 26 F.2d 797, relied on by the court,
see Op. at 20, the alien who was induced actually entered the
United States. See Emmanuel v. United States, 24 F.2d 905
(5th Cir. 1928); Smith v. United States, 24 F.2d 907 (5th Cir.
1928). But no other circuit court has previously upheld an
indictment under the encouragement/inducement charge,
§ 1324(a)(1)(A)(iv), where, as here, the inducement takes
place abroad and the alien never reaches the United States,
or under the attempted bringing charge, § 1324(a)(1)(A)(i),
where, as here, no aspect of the attempt ever reaches the
United States. There are no cases on point from other circuit
courts of appeal regarding the encouragement/inducement
offense, and the only case on point regarding the attempted
bringing offense, Yenkichi Ito, 64 F.2d 73, rejects the court’s
interpretation.
The breadth that the court reads into 8 U.S.C. § 1324
should not be understated. While the conduct at issue in this
particular case occurred on the high seas, nothing in the
statute, once untethered from any territorial limit, confines it
to maritime interdiction. Presumably, the guide who covertly
helps migrants from Ecuador into Colombia (so that they can
eventually reach the United States) could be guilty of conspir-
acy to violate § 1324(a)(1)(A)(i); the Ecuadorian mother who
convinces her son to make the illegal voyage to the United
States so that he can send back money to support the family
living abroad could be guilty of violating § 1324(a)(1)(A)(iv).
The point is not that Congress could not, subject to the
limitations of the Fifth Amendment, see United States v.
18
Davis, 905 F.2d 245 (9th Cir. 1990), criminalize such conduct
(or that the United States would care to enforce the statute
against minor participants), but rather that absent a territori-
al stopping point, the breadth of the statute becomes stagger-
ing. The court’s confidence that prosecutorial discretion and
diplomatic skill will smooth over such difficulties, see Op. at
21, is not particularly reassuring or relevant: if the Supreme
Court thought Executive Branch expertise were the solution
to problems arising from the unintentional application of
United States law abroad, there would be little need for a
canon against extraterritoriality.
Indeed, the lack of jurisdictional limits in 8 U.S.C. § 1324
should be a warning that Congress did not contemplate
extraterritorial application. As noted, Congress’ approach to
preempting the importation of illegal drugs in the Maritime
Drug Act, 46 U.S.C. app. §§ 1901–04 (the law the U.S.S. Fife
was likely enforcing when it happened upon the defendants’
vessel), is instructive. In that Act, Congress expressly ex-
tended its reach to vessels on the high seas, but limited it to
vessels subject to the jurisdiction of the United States, state-
less vessels, vessels of consenting nations, and United States
citizens and resident aliens on board any vessel. Id.
§ 1903(a); cf. United States v. Gonzalez, 311 F.3d 440 (1st
Cir. 2002). Congress thus drew a line, based on its judg-
ments about foreign relations and international law, that it
would not criminalize acts by foreign nationals on the vessels
of foreign nations without such nations’ consent. This is
precisely what the presumption against extraterritorial appli-
cation serves to ensure: that Congress consider such factors
and draw such lines, and that the judiciary, lacking foreign
policy expertise, respect these considerations by erring
against finding extraterritorial application in unclear statutes.
The Supreme Court’s decision this Term in Empagran, 124 S.
Ct. at 2366, could not be clearer on this point.
In sum, the court’s interpretation, which criminalizes acts
irrespective of location, jurisdiction, or the nationality of the
defendant, absent any indication that Congress gave such
factors consideration, fails to heed the prudential interests
the canon safeguards. Both through the substantive offenses
19
and inchoate crimes, application of 8 U.S.C. § 1324 extraterri-
torially criminalizes a wide range of conduct that is legal in
the countries in which it occurs, including a great deal of
travel and speech. The court’s holding allows 8 U.S.C.
§ 1324, where Congress was silent about extraterritoriality,
to reach, paradoxically, much further into the jurisdiction of
other countries than the closely analogous Maritime Drug
Act, in which Congress expressly proclaimed its intention to
apply the statute abroad. It is unlikely that Congress ever
intended such a dichotomous outcome, and ‘‘context’’ alone
cannot provide the requisite indication of Congressional intent
as required by the Supreme Court. Because Congress has
not ‘‘clearly expressed’’ that the offenses charged in the
indictment under 8 U.S.C. § 1324 are to apply extraterritori-
ally, Arabian American Oil Co., 499 U.S. at 248 and the
government fails to offer evidence to overcome the presump-
tion against extraterritoriality of statutes, and because the
government has waived any waiver claim it might have
against the statutory challenge, see concurring opinion of
Judge Randolph, the indictments should have been dismissed.
Accordingly, I respectfully dissent.