CRIMINAL LAW - NINTH CIRCUIT HOLDING HIGHLIGHTS CUMBERSOME APPLICATION OF PRESUMPTION AGAINST EXTRATERRITORIALITY IN FEDERAL STATUTES WITH STATE PREDICATES - UNITED STATES V. PEREZ.

• Author: Callahan, Kathleen

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The Violent Crimes in Aid of Racketeering (VICAR) is a federal criminal statute that proscribes certain violent crimes committed to further an individual's position in an organized criminal enterprise. (1)As the activities of organized crime groups [*156] continue to transcend borders with greater ease, courts in the United States have been tasked with determining whether they can exercise jurisdiction over racketeering offenses with international components. (2)In United States v. Perez, (3)the Ninth Circuit [*157] Court of Appeals analyzed whether the VICAR statute can apply extraterritorially after a United States gang member was convicted under the statutory scheme for an attempted murder in Mexico. (4)The Ninth Circuit held that VICAR may reach conduct [*158] abroad if the statutes predicate offenses do, but reversed the Appellant's conviction because California's jurisdictional statutes and case law prohibit adjudicating crimes committed entirely in another country. (5)

The Appellant Javier Perez (Perez) is a member of South Central, a "clique" of the 18th Street gang in Los Angeles, California. (6)On September 15, 2007, a Columbia Lil Cycos (CLCS) [*159] gang member shot at a street vendor defying the gang's orders and one of the stray bullets struck and killed a three-week-old baby in the area. (7)Following the baby's death, the gang's leadership decided that the gunman "had to be dealt with" and enlisted Perez's assistance as a CLCS ally. (8)Perez and two other gang members drove the gunman from California to Mexico and [*160] strangled him while traveling on a highway nn the Sierra Juarez mountains. (9)Thinking the gunman was dead, Perez threw his body off of a nearby cliff. (10)

On February 29, 2012, Perez and three other gang members were tried together in the United States District Court for the Central District of California in relation to the gang's racketeering activities and Perez's involvement in the attempted murder in Mexico. (11)Regarding Perez's VICAR charges, the District [*161] Court instructed the jury that the statute applied extraterritorially and that it was unnecessary for the government to prove "that any part of the charged crime took place within the United States." (12)After a thirty-one day trial, the jury convicted Perez on four counts: (1) conspiracy under the Racketeer Influenced and Corrupt Organization (RICO) Act; (2) conspiracy to commit murder under VICAR; (3) conspiracy to kidnap under VICAR; and (4) attempted murder under VICAR. (13)Perez appealed the decision, alleging that the District Court improperly instructed the jury on the extraterritorial application of VICAR. (14)The Ninth Circuit Court of Appeals held that the [*162] lower court's instruction was incorrect and reversed Perez's VICAR attempted murder conviction as a harmful constitutional error. (15)

Generally, American courts have applied the canon of statutory construction that federal statutes only apply to conduct that occurs within the territorial jurisdiction of the United States. (16)The Supreme Court has suggested that courts use this [*163] canon, known as the "presumption against extraterritoriality" to avoid international conflict, respect the political branches' authority over foreign affairs, and reflect the notion that Congress primarily enacts statutes to regulate domestic concerns. (17)Although the presumptions force has wavered throughout its history nn the courts, in recent decades, the Supreme Court has [*164] adhered to its strict application reaffirming its validity when construing federal statutes. (18)

Despite the Supreme Court's renewed commitment to the presumption against it extraterritoriality, lower federal courts have been less willing to use the presumption when construing federalcriminal statutes. (19)ln United States v. Bowman, (20)the [*165] Supreme Court reasoned that the presumption against extraterritoriality should not apply to criminal statutes which "as a class [are] not logically dependent on their locality for the Government's jurisdiction, but are enacted because of the Government's right to defend itself...." (21)Although the Court's decision was limited to criminal statutes protecting the government from fraud and obstruction, lower federal courts often invoke Bowman as a means to claim jurisdiction over various criminal acts abroad. (22)This inconsistent appiication of the presumption nn civil and criminal contexts has created confusion nn the legal community and opened the door for the government to [*166] zealously prosecute foreign offenses through criminal racketeering statutes such as RICO and VICAR. (23) [*167] In RJR Nabisco, Inc. v. European Community, (24)the Supreme Court clarified the extraterritorial application of RICO after inconsistent results repeatedly emerged from lower federal courts. (25)The Court formalized a two-step framework for analyzing [*168] the extraterritorial application of a statute (1) the presumption against extraterritoriality can only be rebutted if the statute provides a clear indication that Congress intended it to apply abroad, and (2) if there is no indication of extraterritoriality, [*169] the conduct in the case must evidence a domestic application of the statute. (26)Regarding RICO specifically, the Court held that the racketeering statute may have extraterritorial effect, "but only to the extent that the predicates alleged in a particular case themselves apply extraterritoriality." (27)However, because the Court found that the predicates in Nabisco clearly rebutted the presumption against extraterritoriality in the first step, it did [*170] not consider what constitutes a "domestic application of the RICO statute. (28)As the Supreme Court's third decision in six years concerning the extraterritoriality of federal statutes, Nabisco not only clarified the appropriate reach of racketeering statutes, but also redefined the presumption against extraterritoriality as a whole. (29)

In United States v. Perez, the United States Court of Appeals for the Ninth Circuit determined the extraterritorial reach of the VICAR statute. (30)The Court began its discussion by acknowledging [*171] the "so-called presumption against extraterritoriality that federal statutes apply only within American territorial jurisdiction. (31)The Court then utilized Nabiscos two-step test to determine whether the VICAR statute either affirmatively rebutted the presumption or if the conduct in the case constituted a "domestic application of the statute. (32)In applying step one, the Court determined that similar to RICO, VICAR may apply to conduct abroad, but only if the predicate offenses charged nn the case have extraterritorial effect. (33)The Court reasoned that although California's attempted murder statute does not proscribe wholly exterritorial acts, the states case law and jurisdictional [*172] statutes explicitly forbid claiming jurisdiction over an act committed entirely in another country. (34)Therefore, the Court held that the lower court's instruction that it was not necessary for the government to prove "any part of the charged crime took place within the United States was incorrect. (35)

However, the Ninth Circuit Court of Appeals went on to suggest that California could potentially exercise jurisdiction over the conduct in United States v. Perez. (36)The Court reasoned that the government presented sufficient evidence that Perez formulated the conspiracy to murder his fellow gang member in California, and that his conduct therefore came within the statutes [*173] domestic "focus." (37)The Court did not further elaborate on its potential jurisdiction over the case, but reiterated that the lower court's instruction was incorrect because it stated the jury could find Perez guilty without any of his conduct occurring in the United States. (38)

The Ninth Circuits decision nn United States v. Perez highiights that the extraterritorial application of criminal racketeering statutes continues to produce the unwieldy results Nabisco sought to cure. (39)The Court began its discussion by paying homage to the strict presumption against extraterritoriality it recently promulgated by the Supreme Court, but ultimately went on to utilize a more malleable form of the formal two-step test set forth in Nabisco. (40)In addressing the first step, which states [*174] the presumption can only be rebutted if there is an "unmistakable congressional intent" that the statute apply abroad, the Court correctly followed precedent and held that VICAR's extraterritoriality depends on the reach of its predicate offenses. (41)However, in a marked departure from the Supreme Court's mandate in Nabisco that Congress must clearly intend for the statute to apply extraterritorially, the Ninth Circuit Court of Appeals summarized that VICAR "may reach a crime committed abroad with sufficient nexus to the conduct of an enterprise's affairs." (42)This language is reminiscent of the varying [*175] tests lower federal courts applied to racketeering statutes prior to the Supreme Court's decision in Nabisco and signals that courts may still be employing them despite the Court's goal of coherent jurisprudence. (43)

The Ninth Circuits application of the second step of Nabiscos extraterritorial test in United States v. Perez is also troublesome. (44)After the Court concluded that California's attempted murder statute does not apply to conduct committed entirely abroad, it vaguely addressed the "domestic application test set forth nn Nabisco. (45)The Court asserted that California could potentially exercise jurisdiction over Perez's conduct because he joined a conspiracy nn California and his conduct therefore [*176] came "within the statutes domestic 'focus.'" (46)However, after opening Pandora's box, the Court simply rested on the incorrect jury instruction without any further clarification about what the "domestic application of a statute entails. (47)The Court...