Federal crimes of extraterritorial applicability

Glaude, 4 MJ 1 (CMA, 1977), the court explained that Congress clearly has the power

to provide for extraterritorial applicability of a federal criminal statute. The

issue is not whether it CAN do so, but whether it HAS done so.

QUESTION:

HOW DO YOU TELL IF

FEDERAL

CRIMINAL

STATUTE

APPLIES

EXTRATERRITORIAL BASIS?

ANSWER:

SOMETIMES, THE LANGUAGE OF THE STATUTE WILL SAY WHERE IT APPLIES. IF IT

SAYS IT APPLIES IN "THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF

THE UNITED STATES," THEN IT ONLY APPLIES ON AREAS OF EXCLUSIVE OR

CONCURRENT FEDERAL JURISDICTION AN DOES NOT APPLY OVERSEAS. OTHER TIMES,

THE LAW WILL CLEARLY STATE THAT IT APPLIES ON AN EXTRATERRITORIAL BASIS.

SOMETIMES, HOWEVER, THE STATUTE ITSELF IS SILENT.

In U.S. v. Claude, 4 MJ 1 (CMA, 1977), the court explained that the

"application of a penal statute is not automatically limited to crimes committed

within the territorial jurisdiction of the sovereign just because a penal provision

lacks express language that it should be applied extraterritorially." Instead, it

depends on the purpose of the law. In U.S. v. Bowman, 260 US 94, 67 LEd 149, 43

SCt 39 (1977), the Supreme Court explained that it is a question of "statutory

construction: "

"Crimes against private individuals or their property, like assaults,

murder, burglary, larceny, robbery, arson, embezzlement, and frauds of

all kinds which affect the peace and good order of the community, must,

of course, be committed within the territorial jurisdiction of the

government where it may properly exercise it (jurisdiction).

punishment of them is to be extended to include those committed outside

of the strict territorial jurisdiction, it is natural for Congress to

say so in the statute...But the same rule of interpretation should not

be applied to criminal statutes which are, as a class, not logically

dependent on their locality for the government's jurisdiction, but are

enacted because of the right of the government to defend itself against

obstruction or fraud, wherever perpetrated, especially if committed by

its own citizens, officers, or agents...to limit their focus to the

strictly territorial jurisdiction would be greatly to curtail the scope

and usefulness of the statute, and leave open a large immunity for

frauds...In such cases, Congress has not thought it necessary to make

specific provisions in the law that the laws shall include the high

seas and foreign countries, but allows it to be inferred from the

nature of the offense."

A good illustration of this principle is U.S. v. Mosley, 14 MJ 852 (ACMR,

1982). There, the court was dealing with 18 USC Section 500, which prohibited the

forgery and counterfeiting of U.S. Postal Service money orders. The statute did

not specifically state whether or not it applied overseas.

The court explained

that it "must examine the thrust of the statute to determine whether the

congressional intent is to protect a governmental rather

1-25

MP1018