UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT COURT for the Northern District of Lowa
United States of America
Timothy T. Duax
State Attorney General
Northern District of Lowa
ATTORNEY FOR ……………………..
19th August: United States District Judge Northern District of the State of Lowa
The initial issue was whether 18 U.S.C. § 1114 applies to conduct that happened outside of the United States is an issue of first impression in the Eighth Circuit. This issue implicates “a canon of statutory construction known as the presumption against extra territoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.”
RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 335 (2016). The Supreme
Court has developed “a two-step framework for analyzing extraterritoriality issues.” Id. at 337. “At the first step, [the court] asks whether the presumption has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially.” Id. “If the statute is not extraterritorial, then at the second step [the court determines] whether the case involves a domestic application of the statute.” Id. The parties agree that this case would not involve a domestic application of the statute; therefore, the only issue is whether the statute gives a clear, affirmative indication that it applies extraterritorially. See id.
On balance, the text and intent of Section 1114 do rebut the presumption against extraterritoriality.
The preceding were the issues established by the United States District Court for the Northern District of Lowa
The United States District Court for the Northern District of Lowa denied the Appellant the Motion for Failure to State an Offense on the 19th day of August, 2021.
Statement Of the Case
The Appellant was charged with attempted murder under 18 U.S.C. § 1114. Section 1114
reads as follows:
Whoever kills or attempts to kill any officer or employee of the United States or
of any agency in any branch of the United States Government (including any
member of the uniformed services) while such officer or employee is engaged in
or on account of the performance of official duties, or any person assisting such
an officer or employee in the performance of such duties or on account of that
assistance, shall be punished-
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section 11 12; or
(3) in the case of attempted murder or manslaughter, as provided in section
Standard Of Review
Statement of issue presented for review:
The main issue for review is whether the 18 U.S.C. § gives a clear, affirmative indication that it applies extraterritorially. Hence the appellate court is reviewing the court’s decision through assessing the applicability or otherwise of extraterritoriality application on the alleged murder committed in Canada.
The United States District Judge Northern District of the State of Lowa erred in denying the Appellant Motion for Failure to State an Offense based on the extraterritorial application of 18 U.S.C. § 1114. This section will analyze the various U.S supreme court cases and Circuit court cases that have analyzed the issues of extraterritoriality expressed in the said provision.
The case of United States v. Ali, 718 F.3d 929 (D.C. Cir.2013).stated:
“We started from the broad proposition that “the
extraterritorial reach of an ancillary offense like aiding and
abetting or conspiracy is coterminous with that of the
underlying criminal statute,” Clearly a far broader
view than that of RJR Nabisco. But we held that this rule did
not hold when it came to conspiracy to commit piracy because
such conspiracy liability would violate the law of nations, and
we presume that Congress legislates with international law in
The court in the preceding case held that the government could not charge the appellant with conspiracy to commit piracy when the conduct occurred overseas, even though the underlying predicated charge of piracy clearly applied to conduct outside the United States. Accordingly, in the current case, the extraterritorial application of 18 U.S.C. § 1114 to a charge of attempted murder since it is also a felony. It’s trial in the American courts would not only be unjust and unfair to the Appellant but a stretch of jurisdiction and a possible negation of the resulting order.
- The McBee Test
Further, the Supreme Court of America has used the McBee test to determine the extraterritorial application in deciding the Hetronic International Inc case. The court established that the test requires courts and other relevant judicial bodies to consider certain factors in deciding the extraterritorial application of the preceding law. Such include:
- Whether the defendant is a U.S citizen.
- If the defendant is not, whether the defendants’ conduct had a substantial effect on a U.S national.
- If the substantial-effects test is satisfied, “whether the extraterritorial application of the Act could create a conflict with the nation in which the act was committed.”
In the present case, the Appellant/Defendant is a U.S citizen. Nonetheless, this test is not applicable. The Government wins because the text and intent of Section 1114 rebut the presumption against extraterritorial. Further, the extraterritorial application of 18 U.S.C. § 1114 a nullity could potentially result in a dispute between the American jurisdiction and Canadian jurisdiction. Thus, the need to acquire the relevant authority to go ahead with the charge of attempted murder. As per the McBee test, United States Court of Appeals for The Eighth Circuit Court for the Northern District of Lowa has no jurisdiction to determine the attempted murder charge having been committed in Canada.
- Intention of Congress
As a matter of statutory construction, courts presume that Congress intends federal criminal laws to apply only within the United States, unless Congress clearly indicates otherwise. The D.C. Circuit in the case of United States v Garcia bowan noted that:
“[i]n recent years the Supreme Court has applied th[is] canon with increased clarity and insistence.”
With this as its starting point, the D.C. Circuit further observed that:
“[o]n its face, § 1114 does not speak to extraterritorial application one way or the other, thus leaving the presumption against extraterritoriality unrebutted.” The court also found that “context reinforces the case against extraterritorial application of § 1114.”
Specifically, when Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) and revived the death penalty as a sentencing option for violations of Sections 1114 and 1116, it expressly made Section 1116 applicable overseas but included “no such signal” in Section 1114. The D.C. Circuit rejected the government’s argument that the venerable Supreme Court decision in United States v. Bowman supports the extraterritorial application of Section 1114. The D.C. Circuit further explained that, in Bowman’s case, the Supreme Court had “permitted the extraterritorial application of a statute” even though Congress had not expressly done so because “‘to limit [its] locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute.’” Thus, the D.C. Circuit understood Bowman to mean that a court may find that “Congress intended extraterritorial application” when there was a “great likelihood that the outlawed conduct would occur abroad.” The D.C. Circuit concluded that this rationale did not apply to Section 1114 because it was not apparent that the federal officers covered by the statute would work “only (or even largely) overseas.”
From the preceding, the extraterritorial application of —18 U.S.C. § 1114 on the crime of attempted murder allegedly committed in Canada by the Appellant should thus not be upheld. Such would amount to misconstrual by the court of the intention of having the statutory provision extend to the application of crimes committed in foreign nations.
The D.C. Circuit’s decision in Garcia Sota conflicts with the decisions of two other federal courts of appeal. Both the Second Circuit, in United States v. Siddiqui, and the Eleventh Circuit, in United States v. Benitez, held that Section 1114 applies abroad. Contrary to the D.C. Circuit, both of these courts relied on Bowman’s “type-of-crime” rationale to conclude that Section 1114 applies extraterritorially. However, it is the Appellant’s submission that they were both erroneously decided. Siddiqui and Benitez were erroneously decided.
Further, the court D.C Circuit held that in cases involving offenses against internationally protected persons committed abroad, legal issues concerning the exercise of extraterritorial jurisdiction, the extraterritorial scope of the statutes, foreign policy considerations, the procurement of witnesses and costs may be involved. Therefore, in cases involving the assertion of extraterritorial jurisdiction under any of these statutes, it is mandatory that Federal prosecutors seek approval from the Criminal Division prior to the initiation of any proposed investigation or prosecution.
Eventually, the D.C. Circuit Court vacated part of the convictions for Garcia Sota and Quezada Pina, arguing that Section 1114 does not apply to violations committed outside of the U.S. Their convictions on federal weapons charges and a section of the law that prohibits the killing of foreign officials, official guests or internationally protected persons – 18 USC 1116 – were upheld due to Avila having diplomatic status. According to the Congressional Research Service summary, Zapata was on a temporary assignment and didn’t enjoy that same protected status as Avila. Regardless of their status, the court viewed the lack of “extraterritorial jurisdiction” language in 18 US 1114 as non-enforceable in this case and dismissed on appeal, meaning his murder effectively could not be prosecuted as a crime simply by virtue of where it occurred.
The reason for the court’s ruling was due to the language of Section 1114, which, according to the panel on the U.S. Circuit court, did not specify extraterritorial jurisdiction for the murder charge, and could not be applied outside the United States. Typically, federal criminal law is presumed to only apply in the U.S. unless Congress specifies otherwise, which it does in terrorism and child predator cases.
Despite this loophole, federal agents have and continue to serve overseas every day under the assumption that federal law would protect them. Without the protection afforded by Section 1114, federal agents serving overseas might find themselves targeted because criminals know they can’t be prosecuted for the killing of a federal law enforcement officer. The D.C. circuit sent the case back to the district court for “limited” re-sentencing, which will negate the double life sentences they were both serving.
Now, Garcia Sota and Quezada Pina will face less time — up to 20 years for the attempted murder (Section 1116) of Avila and up to life for the firearms charge. If this ruling stands, Zapata’s murder will never be accounted for. The DOJ now has a decision to make about whether to appeal this case to the Supreme Court and Congress has to decide whether to act to close this loophole, something which I and other federal law enforcement representatives are calling for.
Likewise, the extraterritorial application of Section 1116 on the charge of attested murder by the District Court for the Northern District of Lowa is an error and ought should be set aside.
- Principles of Extraterritorial Prosecutions
There exist certain legal principles that govern matters arising from the prosecution of extraterritorial terrorism cases. These include the ability of the United States to proscribe such acts and assert jurisdiction over them, the determination of the district in which such prosecutions will be venued, and the ability of the United States to project its investigative and law enforcement capabilities overseas. Although the principles contained in this survey represent the current views of the Counterterrorism Section and comport with what the Department of Justice (Department) believes to be the present state of the law, just as in any criminal prosecution, government counsel should always consult the current law of the circuit and its application to the particular case. Should legal issues arise that require further guidance, it may be obtained from either the Criminal Division’s Counterterrorism
Section or the Department’s Office of Legal Counsel.
From the preceding principles, the United States Courts will not be able to effectively conduct an investigation into the attempted murder allegations against the Appellant. This is given the fact that the offence is alleged to have been committed in Canada. The lack of adequate investigations into the alleged crime could prejudice the case of the Appellant. Hence a contravention of the right to a fair trial that he is entitled to.
Based on the arguments above, the Appellant respectfully requests that this court revers the District Court’s order and declare the extraterritoriality application of 18 U.S.C. § 1114 a nullity. Defendant should thus not be prosecuted here for murder from the killing that happened in Canada under Section 1114. Section 1114 provides that:
“Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished—
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section 1112; or
(3) in the case of attempted murder or manslaughter, as provided in section 1113.
(b)Extraterritorial Jurisdiction. —
There is extraterritorial jurisdiction over the conduct prohibited by this section.”
The language of the provision reveals that exterritoriality is inapplicable in criminal offences committed in foreign nations.
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