Transnational law - requirement of a territorial nexus to the United States limits extraterritorial application of United States criminal law - United States v. Weingarten.

Author:Drake, Samantha


When a U.S. citizen violates U.S. criminal law outside the territorial borders of the United States, a court must decide whether the violated statute confers extraterritorial jurisdiction to prescribe conduct outside the United States to enforce the criminal statute. (1) Even when a federal criminal statute explicitly allows for its application to U.S. citizens abroad, jurisdiction may still be lacking due to limitations imposed by the Foreign Commerce Clause of the U.S. Constitution. (2) In United States v. Weingarten, (3) the U.S. Court of Appeals for the Second Circuit addressed whether application of 18 U.S.C. [section] 2423(b), which prohibits travel with intent to engage in illicit sexual conduct, pertains only to travel with a territorial nexus to the United States. (4) The court held that although [section] 2423(b) applies to conduct occurring outside of the United States as "travel in foreign commerce," such travel does not violate [section] 2423(b) absent some territorial nexus to the United States. (5)

Israel Weingarten, a U.S. citizen residing abroad, was convicted under 18 U.S.C. [section] 2423 of transporting a minor with intent to engage in criminal sexual activity and traveling with intent to engage in illicit sexual conduct. (6) The criminal allegations stemmed from Weingarten's travel between Israel and Brooklyn, New York in 1997, between Brooklyn and Antwerp, Belgium in 2007, and between Belgium and Israel in 1997. (7) In 1984, Weingarten and his family moved to Antwerp, Belgium and Weingarten began to sexually abuse his daughter, Doe, when she was nine or ten-yearsold. (8) In April 1997, the family relocated to Israel, where the abuse continued. (9) The following month, Weingarten traveled with Doe back to Antwerp to finish packing for the family's move to Israel, and he continued to sexually abuse his daughter. (10) On July 30, 1997, Weingarten and Doe traveled together from Israel to Brooklyn, New York, then returned to Antwerp; the abuse continued unabated in each location. (11)

Weingarten moved to dismiss Count Three relating to his travel between Belgium and Israel, citing the absence of any territorial nexus to the United States. (12) Weingarten argued that his travel did not constitute "travel in foreign commerce" within the meaning of [section] 2423(b), but if it did, that Congress exceeded its authority under the Foreign Commerce Clause in passing the provision. (13) The district court rejected this argument and convicted Weingarten on all five counts, disregarding Weingarten's assertion that his travel between Belgium and Israel fell outside the scope of [section] 2423(b). (14)

On appeal, the Second Circuit was faced with two questions: whether [section] 2423(b) applies to conduct abroad, and if so, whether it applies abroad when the travel has no territorial nexus to the United States. (15) The court held that though [section] 2423(b) applies to conduct beyond the territorial borders of the United States, it does not apply to travel that lacks a territorial nexus to the United States, and reversed Weingarten's conviction under Count Three. (16)

One of the most fundamental principles of international law is the presumption against extraterritoriality: domestic legislation does not extend beyond a state's territorial borders. (17) Nonetheless, the United States has passed many laws that apply abroad. (18) The U.S. Constitution grants Congress the power to regulate commerce "among the several states" and "with foreign nations." (19) This constitutional authority has resulted in a large body of law defining extraterritorial jurisdiction to prescribe conduct abroad that dates back to the maritime laws of the early nineteenth century. (20) The Foreign Commerce Clause also provides the basis for enforcement of some criminal statutes beyond United States borders. (21) The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT), codified as 18 U.S.C. [section] 2423, is one example of domestic legislation that applies to conduct abroad, criminalizing international sex tourism and protecting minors from sexual exploitation. (22)

Though the presumption against extraterritoriality is rebuttable, there are several important limits on Congress's jurisdiction to proscribe conduct abroad. (23) First, Congress is not presumed to intend extraterritorial application that would violate principles of international law. (24) International law recognizes five principles where extraterritorial application of domestic laws is appropriate: the territorial principle, the nationality principle, the passive personality principle, the protective principle, and the universality principle. (25) The presence of one or more of these principles is necessary to overcome the presumption against extraterritoriality of domestic legislation. (26) Second, domestic laws do not apply abroad absent a "clear and affirmative indication" of congressional intent to the contrary. (27) Third, extraterritorial jurisdiction is also limited by a reasonableness requirement, such that the presumption against extraterritoriality will prevail if construing a domestic law to apply abroad would be unreasonable. (28)

Examples of a territorial nexus requirement between conduct abroad and the United States appear predominantly in the context of maritime law and questions involving vessels outside of U.S. waters. (29) However, in United States v. Clark, (30) Judge Ferguson's dissent called for the application of this nexus requirement outside of the maritime context in order to limit [section] 2423's exercise of the Foreign Commerce Clause. (31) Judge Ferguson's dissent now seems prescient in light of Weingarten, which held extraterritorial jurisdiction to enforce criminal statutes abroad requires a territorial nexus to the United States in order for the statute to fall within the authority of the Foreign Commerce Clause. (32)

In United States v. Weingarten, the Second Circuit concluded that the legislative history of [section] 2423(b) clearly answered its threshold question of whether [section] 2423(b) affirmatively applies to conduct beyond American borders. (33) The more problematic question was whether jurisdiction extends extraterritorially only when the conduct has a territorial nexus to the United States. (34) Both questions required the court to determine the meaning of the phrase "travel in foreign commerce." (35) The court looked first to the text of the statute itself to identify the scope of the covered travel. (36) The court recognized that congressional intent for extraterritorial jurisdiction must be clear, and that if [section] 2423(b) is interpreted to cover conduct abroad, extraterritorial application of the statute must not conflict with principles of international law. (37)

The court concluded that there was a clear and affirmative indication that Congress intended [section] 2423(b) to apply extraterritorially because the law is aimed at travel surrounding the prohibited conduct, whether it occurs within American borders. (38) The court also concluded that construing [section] 2423(b) to apply extraterritorially does not conflict with international law because first, the nationality principle provides a basis for the legislation, and second, allowing [section] 2423(b) to prescribe conduct abroad is reasonable. (39) The court thus resolved the first question by finding that [section] 2423(b) does apply to conduct beyond American borders because neither the presumption against extraterritoriality nor the presumption against violations of principles of international law renders [section] 2423(b) jurisdiction exclusively domestic. (40)

The court then turned to determining if "travel in foreign commerce" for the purpose of...

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