Serial 776

United States Department of Justice
Federal Bureau of Investigation
Memorandum
To: The Director
From: Legal Counsel
Subject: EXTRATERRITORIAL JURISDICTION UNDER FEDERAL LAW

At 6 p.m. on November 21, 1978, Assistant Director Moore called me and said that he was, at that time, in the Director’s office and the Director had requested me to furnish an opinion concerning whether the Federal statutes prohibiting slavery and involuntary servitude would be applicable to activities occurring in a foreign country. He was specifically referring to the circumstances involved in the recent events in Guyana.

I conducted the necessary research and at approximately 8 p.m., November 21, I attempted to call you in your office and spoke to Russ Bruemmer in your absence. I furnished Mr. Bruemmer my opinion and then in a conference call with Associate Director Adams and Assistant Director Moore, at 8:11 p.m., I advised them. At approximately 8:20 p.m., I reached Mr. Boynton and advised him 18 USC 1583 (slavery) and 1584 (involuntary servitude) would not apply in a foreign country.

Though there is little in the way of authority, the Supreme Court decision in United States v. Bowman 67 L. ed. 149 discusses the principle of territorial limitation of power and jurisdiction of government to punish crime. The court stated (at page 151):

“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

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Memo Legal Counsel to the Director
Re: Extraterritorial Jurisdiction Under Federal Law

to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, an affiliate to do so will negative the purpose of Congress in this regard.”

The court contrasted the interest of the government with the individual interest as follows:

“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 curtailed 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.”

Congress has acted to extend Federal jurisdiction by statute to the special maritime and territorial jurisdiction of the United States which is defined in Title 18 USC, section 7. Under that specific statutory extension of jurisdictional authority, crimes against the person may be prosecuted under Federal law if the conditions of the maritime and territorial jurisdiction are met. For example, in United States v.

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Memo Legal Counsel to the Director

Re: Extraterritorial Jurisdiction Under Federal Law

Erdos 474 F.2d 157 (4th Cir. 1973) the court held that there was jurisdiction under Federal law to prosecute an American citizen who killed another American citizen and the American Embassy located in the Republic of Equatorial Guinea. Federal jurisdiction may also extend to cases in which the Federal statute is intended to protect the government itself. In such cases, the offense is complete when the elements of the statute have been met and there is no specific requirements that the offense the committed within the territorial jurisdiction of the government. Specific application of the principle would result in the conclusion that the killing of the President of the United States or a member of Congress could be investigated and prosecuted under Federal law regardless of the physical location of the killing. The rationale for application of those statutes treatments occurring outside the territorial authority of the government is that the statutes were designed to protect a function of government. Venue for prosecution in such cases is decided by reference to 18 USC 3238 which provides for venue in the district within the United States where the offender is arrested or first brought. This area of the law is not well developed and though it is my opinion that the general principles can be described, such questions arising in the future should be considered carefully on an ad hoc basis and I recommend that in such questions be referred promptly for a legal opinion.

The general principles are:

  • There is Federal jurisdiction in any case meeting the requirements of 18 USC, section 7, which generally extends authority to vessels at sea, government reservations, and U.S. aircraft.
  • Federal jurisdiction extends, according to the intention of Congress, in those statutes designed to protect the government itself and where the elements of the events are not necessarily limited to the territorial jurisdiction of the United States.
  • Federal jurisdiction does not extend to instances where offenses are committed against the person and there is no direct harm to a statutorily protected government interest.

Recommendation: For information.

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Originally posted on May 3rd, 2019.

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