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BACKGROUND AND FACTS

Campbell, an Australian citizen, was employed in the construction of health care facilities and schools in Afghanistan. The projects were funded by a U.S. government agency that extends financial and technical assistance to foreign countries to support U.S. foreign policy objectives. Campbell was on a panel that selected subcontractors to work on projects. The U.S. government alleged that Campbell demanded and received a cash payment in return for granting $14 million worth of work to a subcontractor. The money had been paid by an undercover federal investigator in Kabul, Afghanistan, posing as an agent of the subcontractor. Campbell was indicted in the United States for bribery (18 U.S.C. Sec. 666), arrested in India several months later, and brought to the United States for prosecution. Campbell moved for dismissal claiming that his prosecution was barred because the events occurred outside the United States, he is not an American citizen, prosecution would violate his due process rights, and his prosecution would violate international customary law.

ROSEMARY M. COLLYER, DISTRICT JUDGE

* * * Courts have long recognized a presumption against reading a statute to have extraterritorial effect. “It is a ‘longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” Morrison v. Nat’l Australia Bank Ltd., 561 U.S. ––––, 130 S.Ct. 2869 at 2877 (2010). [most citations omitted].
Despite this seemingly unequivocal pronouncement, the Supreme Court earlier cautioned that “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.” United States v. Bowman, 260 U.S. 94, 98, (1922). *** Bowman concerned a … “conspiracy to defraud … the United States … after defendants submitted a false claim for fuel oil for one of its steamships. [T]he Supreme Court reasoned:
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. If 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, and failure to do so will negative the purpose of Congress in this regard …
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. Some such offenses can only be committed within the territorial jurisdiction of the government because of the local acts required to constitute them. Others are such that to limit their locus 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 as easily committed by citizens on the high seas and in foreign countries as at home.
In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. * * *
Mr. Campbell argues that his prosecution violates customary international law. “[I]nternational law itself imposes limits on the extraterritorial jurisdiction that a domestic court may exercise. It generally recognizes five theories of jurisdiction, the objective territorial, national, passive, protective and universal.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984). An act of Congress should not be construed in a manner that violates the laws of nations if a non-violative interpretation is possible. Hartford Fire Ins. Co. v. California, 509 U.S. 764, (1993).
Here, the protective principal—specifically articulated in Bowman—supports the prosecution of Mr. Campbell. “The protective principle permits a nation to assert jurisdiction over a person whose conduct outside the nation’s territory threatens the nation’s security or could potentially interfere with the operation of its governmental functions.” United States v. Romero-Galue, 757 F.2d 1147 (11th Cir. 1985); Bribery in connection with contracts backed by U.S. financing is illegal precisely because it implicates and adversely affects the interests and purse of the United States. The United States has the right “to defend itself against obstruction, or fraud wherever perpetrated.” [Bowman]. The protective principle amply supports prosecution of Mr. Campbell in this Court.
Decision. Motion to dismiss is denied. The defendant’s prosecution under this statute for bribery occurring outside the United States does not violate the principle against extraterritorial application of U.S. law because, under U.S. v. Bowman (cited above), the government has an interest in protecting itself from fraud wherever it occurs. The statue does not violate international customary law because it falls within the protective jurisdiction.
Comment. The court also held that because of the real harm done to the United States, there was a sufficient “nexus” or connection to the United States such that prosecution was not unreasonable or fundamentally unfair in violation of the defendant’s constitutional rights.

Case Questions

1. If Congress did not state in the statute that it applied outside the U.S., how did the court arrive at its conclusion?

2. What is meant by the “Bowman Exception?”