Introduction

Consider two situations involving violations of federal criminal law. In each of these circumstances, where should the trials of the offenders be held?

In the first situation, a man travels from his home in Chicago to Bangkok, Thailand, by means of a taxi ride to Chicago O’Hare International Airport and a plane ride directly to Bangkok. While in Thailand, the man engages in sex with a fifteenyear-old Thai girl. US law enforcement officials become aware of the illicit activity before the man returns to the United States. The man’s return flight from Bangkok includes a short layover at Los Angeles International Airport. While on this layover, the man is arrested for violating the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), which prohibits “engag[ing] in any illicit sexual conduct with another person” in a foreign place or “travel[ing] in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person.”

In the second situation, several individuals are involved in a scheme to smuggle cocaine from Colombia into the United States. Participant A physically transports the cocaine on a boat that travels from Costa Rica to Miami. Participant B, who is located in Atlanta, directs the overall distribution of the cocaine throughout the United States. After a sting operation conducted by the FBI reveals the identities and interrelated activities of these individuals, they are each arrested under various charges, including conspiracy to import and distribute cocaine. Participant B is arrested in Atlanta, but Participant A’s situation is a bit more complicated. After a storm throws his boat off course, he is arrested in the Gulf of Mexico—technically part of the high seas—after being spotted by a Coast Guard vessel. Immediately after the arrest, the Coast Guard brings Participant A to Mobile, Alabama.

Both of the situations involve criminal activity with both domestic and extraterritorial elements. In other words, parts of the criminal conduct occurred within the territorial jurisdiction of the United States, and other parts took place outside of such jurisdiction, either in the jurisdiction of a foreign country or on the high seas. A federal statute, 18 USC § 3238, defines venue for extraterritorial crimes. Although § 3238 unquestionably covers crimes committed entirely extraterritorially, does it also encompass crimes that involve conduct spanning both US and extraterritorial locales such as the ones described above?

In the past few decades, courts have come to different conclusions regarding the applicability of § 3238 to these types of criminal offenses. The majority of courts has held that the statute applies to this criminal conduct. However, some courts have held that while § 3238 applies to conduct begun abroad and carried into the United States (as the statute refers to offenses “begun or committed” outside the United States), it does not apply to conduct undertaken in the reverse direction—that is, begun in the United States and continued extraterritorially. Finally, one court of appeals has held that § 3238 cannot apply whenever any criminal conduct is performed within the United States.

The resolution of this disagreement among courts is a pressing issue for a number of reasons. First, the application of § 3238 to conduct partially taking place within the United States will often result in a change of trial venue, and transfer rules do not always ensure that the trial will end up in an appropriate location. As § 3238 generally provides that trials shall take place wherever an offender is first brought or arrested, the application of this statute can take venue away from a district in which some criminal activity occurred. Moreover, although this is a procedural issue, venue can have a deep effect on substantive rights. Finally, this particular venue issue is especially relevant now because of two recent trends. First, given the expanding nature of global communications, travel, and business, criminal conduct is increasingly transnational. Second, Congress has been increasingly inclined to criminalize activity that takes place at least partially extraterritorially in a variety of contexts, including sexual crimes, kidnapping, and corruptionand drug-related offenses. Therefore, the scope of § 3238 is relevant to a growing number of criminal trials.

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