UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) ) Criminal Action No. 10-224 (RMC) NEIL CAMPBELL, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Neil Campbell is an Australian citizen who was a senior construction manager

associated with the International Organization for Migration (“IOM”) in Afghanistan, working on

contracts funded by the U.S. Agency for International Development (“USAID”). He is charged in

a one-count Indictment with solicitation of a bribe by an agent of an organization receiving more

than $10,000 in federal funds, a violation of

(a)(1)(B) (“§ 666”). He moves to

dismiss the Indictment, arguing, in part, that § 666 does not extend beyond the domestic boundaries

of the United States to his alleged criminal conduct in Afghanistan. Mr. Campbell’s motion raises

a most intriguing question of accommodating two distinct lines of analysis from the Supreme Court:

one, in a criminal context, was set out in 1922, has never been overturned, and would arguably allow

this prosecution; the second, mostly in a civil context, has been most emphatically proclaimed in

recent years and would arguably bar it. Not surprisingly, the Government would hold the law to the

benchmark set in 1922, under which its prosecution meets statutory and constitutional measures.

As a lower court, this Court cannot ignore what neither the Supreme Court nor the

D.C. Circuit has declared outmoded. Mr. Campbell’s remedy, if any, must come from elsewhere. His motion will be denied.

I. FACTS ALLEGED

The following factual allegations are taken from the Indictment. See Indictment [Dkt.

# 6]. As relevant, IOM is an intergovernmental organization that is providing healthcare and

educational support to the Afghani government, working with the Afghanistan Ministries of Public

Health and Education to construct hospitals, midwifery training schools and provincial teacher

training colleges. USAID is an independent federal governmental agency. It is the principle U.S.

agency that extends assistance to foreign nations to support U.S. foreign policy objectives by

supporting economic growth, agricultural development, conflict prevention, global health, and

development relief. Since 2002, USAID has provided more than $260 million to IOM for

reconstruction efforts in Afghanistan through five contracts known as cooperative agreements.

Mr. Campbell has worked with IOM since January 2009 as a senior construction

manager in Afghanistan. He devoted his attention to the USAID-sponsored Construction of Health

and Education Facilities (“CHEF”) program pursuant to cooperative agreement #306-A-00-08-00512

between USAID and IOM. Mr. Campbell was also a member of a panel that selected subcontractors

for various CHEF construction projects. On or about May 25, 2010, IOM awarded two subcontracts

from the CHEF program to subcontractor ABC (“ABC”), a construction company in Afghanistan.

The first subcontract was worth $13,470,947.65 for the construction of a hospital in Afghanistan.

The second subcontract awarded to ABC was worth $1,950,187.00 for the construction of a

provincial teacher training college in Afghanistan.

The Indictment alleges that on or about July 7, 2010, Mr. Campbell met in Kabul,

Afghanistan with an undercover investigator from the USAID Office of Inspector General, who was

-2- posing as a representative of ABC. Mr. Campbell requested a one-time cash payment of $190,000

in United States currency to allow ABC to continue to work on the hospital and college projects.

Allegedly, Mr. Campbell stated that he “got [ABC] $14 million worth of work” and “one hundred

and ninety thousand dollars is nothing for the risk I am taking.” Indictment ¶ 7 (Count 1). Mr.

Campbell told the undercover investigator that he preferred a cash payment to a wire transfer because

he wanted to elude law enforcement. He allegedly stated that “people [that] do what I do, they, you

know, I’m 60 years old. I don’t need to do 10 years in jail, that’s the end of my life.” Id. ¶ 8. The

undercover investigator asked about future subcontracts that Mr. Campbell could obtain for ABC,

and Mr. Campbell responded, “We’ll have to wait for USAID to give us the money.” Id. ¶ 9. The

meeting concluded with Mr. Campbell agreeing to meet the undercover investigator again in

approximately six weeks to accept the one-time cash payment. Mr. Campbell insisted that the next

meeting transpire at night because it would be dark.

The Indictment further alleges that on or about August 5, 2010, Mr. Campbell again

met with the undercover investigator, who explained that he had encountered difficulties securing

the entire $190,000 payment, and offered Mr. Campbell $10,000 in U.S. currency in cash as a good

faith payment. Mr. Campbell accepted the $10,000 payment, counted the bills, and directed that the

remaining payment of $180,000 be made in a single lump-sum payment. Mr. Campbell explained,

“[T]he thing goes likewise, you know, I’m making some money, but also I’m making, um, the guy

at USAID and [IOM] and the people of Afghanistan a very good product.” Id. ¶ 12. For the next

and final payment, Mr. Campbell instructed the undercover investigator that, rather than call, he

should send Mr. Campbell a text message with the specific message: “I have some nice coins for

you to look at.” Id. ¶ 13. Mr. Campbell also instructed the undercover investigator to “go out and

-3- buy a ten dollar briefcase and put [the $180,000] in the ten dollar brief case” for Mr. Campbell. Id.

Accordingly, the Indictment alleges that “[o]n or about May 25, 2010 and continuing

through on or about August 5, 2010, in Kabul, Afghanistan, CAMPBELL did corruptly solicit,

demand, accept and agree to accept a thing of value, that is $190,000 in United States currency, from

Undercover [investigator], intending to be influenced and rewarded in connection with a transaction

and series of transactions of USAID involving $5,000 or more” in violation of

(a)(1)(B).

.

The United States initiated sealed criminal proceedings against Mr. Campbell by

filing a criminal complaint on July 23, 2010,1 and the Indictment followed on August 19, 2010. The

case was unsealed on October 12, 2010. Mr. Campbell was arrested in India on February 11, 2011,

and thereafter brought to the United States for prosecution. The Indictment contains one count under

(a)(1)(B)2 and a claim for criminal forfeiture under

(a)(1)(C) and 28

1 The criminal complaint alleged that Mr. Campbell violated

(soliciting a kickback) and

(a)(1)(B), see Criminal Compl. [Dkt. # 1], but Mr. Campbell was only indicted under § 666. 2 In relevant part, the statute reads:

§ 666. Theft or bribery concerning programs receiving Federal funds

(a) Whoever, if the circumstance described in subsection (b) of this section exists– (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof– (A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that– (i) is valued at $ 5,000 or more, and (ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded

-4- U.S.C. § 2461(c). Mr. Campbell moved to dismiss the Indictment on May 23, 2010, and following

oral argument on July 15, 2011, the motion is now ripe for decision.

II. LEGAL STANDARD

A motion to dismiss challenges the adequacy of the indictment on its face. A

defendant may move to dismiss an indictment on the grounds that it “fails to invoke the court’s

jurisdiction or to state an offense.” Fed. R. Crim. P. 12(b)(3)(B). In ruling on a motion to dismiss,

a court views the indictment as a whole and assumes its factual allegations to be true. Boyce Motor

in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $ 5,000 or more; or (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $ 5,000 or more;

shall be fined under this title, imprisoned not more than 10 years, or both.

(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $ 10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.

(d) As used in this section– (1) the term “agent” means a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative; ..... (5) the term “in any one-year period” means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense.

-5- Lines v. United States,

, 343 n.16 (1952); see also United States v. Ferris,

(1st Cir. 1986). The question is usually whether the allegations, if proven, would be sufficient

to permit a jury to find that the crimes charged were committed. United States v. Sampson,

(1962).

In this case, however, Mr. Campbell’s first three challenges to the Indictment steer

clear of its factual allegations, except as to their locus. Rather, he contends that the criminal statute

at issue, § 666, does not reach his conduct occurring outside the domestic boundaries of the United

States and, therefore, the Indictment must be dismissed because all alleged events happened in

Afghanistan. Mr. Campbell further argues that his prosecution violates his rights to due process and

transgresses customary international law. These arguments implicate the merits of Mr. Campbell’s

prosecution and not the Court’s subject-matter jurisdiction. See United States v. Delgado-Garcia,

, 1341–43 (D.C. Cir. 2004) (criminal prosecution); Morrison v. Nat’l Australian Bank

Ltd.,

(2010) (civil litigation). The Court maintains original jurisdiction under

, which vests original jurisdiction in the district courts over all offenses against the

laws of the United States. See

. In the end, the “district court’s subjectmatter

jurisdiction . . . include[s] the power to decide whether the indictment charged a proper ‘offense.’”

Delgado-Garcia,

.

III. LEGAL ANALYSIS

Mr. Campbell advances four reasons to dismiss the Indictment: 1) he cannot be

prosecuted because § 666 cannot be applied extraterritorially; 2) application of § 666

extraterritorially violates his rights to due process; 3) prosecution of Mr. Campbell violates

customary international law; and 4) the Indictment erroneously identifies him as an employee of

-6- IOM, which he is not, and he is therefore not subject to prosecution under § 666. These will be

addressed in turn.

A. Extraterritoriality of Section 666

A statute applies extraterritorially when it reaches conduct occurring outside the

territorial limits of the United States. The Indictment alleges criminal acts committed entirely

beyond the borders of the United States – in Afghanistan – and the Government does not rely on any

theory of territorial jurisdiction to support Mr. Campbell’s prosecution. See Opp’n [Dkt # 22] at 5

n.3. Accordingly, the Government’s prosecution under this Indictment depends upon the

extraterritorial application of § 666.

Courts have long recognized a presumption against reading a statute to have

extraterritorial effect. “It is a ‘longstanding principle of American law that legislation of Congress,

unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United

States.’” Morrison,

(quoting EEOC v. Arabian Am. Oil Co. (“Aramco”),

(1991) (superseded by Civil Rights Act of 1991,

,

)). “This principle represents a canon of construction, or a presumption about a statute’s

meaning, rather than a limit upon Congress’s power to legislate.”

“It rests on the perception that

Congress ordinarily legislates with respect to domestic, not foreign matters.”

Therefore, “unless

there is the affirmative intention of the Congress clearly expressed” to give a statute extraterritorial

effect, “we must presume it is primarily concerned with domestic conditions.” Aramco,

.

Despite this seemingly unequivocal pronouncement, the Supreme Court earlier

cautioned that “the same rule of interpretation should not be applied to criminal statutes which are,

-7- 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.” United States v.

Bowman,

(1922). Mr. Campbell urges the Court to follow the modern principle

exemplified by Morrison and insist that the Government point to a textual basis in the statute to

support the extraterritorial reach of § 666; the Government responds that Bowman has never been

overruled or distinguished, that the alleged crime here constituted a fraud against the United States,

and that the reasoning of Bowman applies four-square.

Bowman concerned a criminal indictment charging “conspiracy to defraud a

corporation in which the United States was and is a stockholder,” i.e., the United States Shipping

Board Emergency Fleet Corporation, after defendants submitted a false claim for fuel oil for one of

its steamships.

. The plot was hatched at sea and at the port and city of Rio Janeiro,

Brazil.

. The district court concluded that the absence of any statutory reference to conduct

at sea required it to construe the statute “not to extend to acts committed on the high seas.”

. On review, the Supreme Court reasoned:

The necessary locus [of a crime], when not specifically defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. 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 to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. . . .

-8- 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 to curtail 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.

at 97–98.

The criminal statute under which the Bowman indictment was brought was “directed

generally against whoever presents a false claim against the United States, knowing it to be such, to

any officer of the civil, military or naval service or to any department thereof, or any corporation in

which the United States is a stockholder, or whoever connives at the same by the use of any cheating

device, or whoever enters a conspiracy to do these things.”

. The statute had only recently

been amended to proscribe false claims to corporations in which the U.S. was a stockholder,

evidently to protect the Emergency Fleet Corporation which “was expected to engage in, and did

engage in, a most extensive ocean transportation business and its ships were seen in every great port

of the world open during the [First World War].”

. The Court noted, “We can not

suppose,” under such circumstances, that Congress “did not have in mind that a wide field for such

frauds upon the Government was in private and public vessels . . . beyond the land jurisdiction of

the United States, and therefore intend to include them” in the statute’s coverage.

The Court

concluded that “[i]t needs no forced construction to interpret [the law] as we have done.”

-9- The D.C. Circuit in United States v. Delgado-Garcia further explicated the analysis

to determine the extraterritorial reach of criminal legislation.

(D.C. Cir. 2004). The

alien defendants in Delgado-Garcia were charged with (1) conspiracy to encourage or induce aliens

to come into the U.S. knowing that it would violate U.S. law and (2) attempt to bring unauthorized

aliens into the U.S., in violation of various subsections of

.

.

Defendants had been operating a sea vessel overcrowded with Ecuadorian nationals intending for

the passengers to disembark in Mexico, and then enter the U.S. by land and without authorization.

The boat was stopped by a U.S. Navy ship off the Guatemalan coast. Defendants abandoned the

vessel and left their passengers to their fates; defendants were later indicted and pled guilty to crimes

under § 1324(a)(1) and (a)(2), after protesting that they could not be prosecuted for acts outside the

territory of the U.S. See id. at 1339–40.

The D.C. Circuit held that “[b]oth of these statutes apply extraterritorially.” Id. at

1344. It explained that the presumption against extraterritorial application was overcome:

This presumption against extraterritorial application of domestic statutes is based on the assumption that Congress is primarily concerned with domestic conditions. This presumption embodies sensible contextual linguistic reasons for reading the plain texts of domestic statutes not to apply everywhere in the world. Because Congress’s primary arena of sovereignty is the territorial United States, it makes sense to presume, absent other evidence, that its commands linguistically apply only there. Therefore, we presumptively read the text of congressional statutes not to apply extraterritorially, unless there are contextual reasons for reading the text otherwise.

. . . Contextual reasons, in our view, supply the “affirmative evidence” the Supreme Court requires to overcome the presumption.

. . . [W]e agree with the Second Circuit’s statement [in Kollias v. D & G Marine Maintenance,

(2d Cir. 1994)] . . . that “all

-10- statutes, without exception, [should] be construed to apply within the United States only, unless a contrary intent appears.” Our point is that contextual factors show that Congress had a contrary intent in this case.

(internal quotation marks and citations omitted). The presumption against extraterritorial

enforcement reflects a “sensible caution” that is dependent on “contingent real-world assumptions.”

Id. at 1345. A court must not “read the statute based on the result of its own policy analysis,” but

“apply the canons of construction to interpret, not rewrite, congressional acts” and, in examining the

text, should “consider both contextual and textual evidence.” Id.

As to context, the Circuit noted that § 1324(a) is concerned with more than domestic

conditions as it “protects the borders of the United States against illegal immigration” and would

naturally “reach those outside the borders.” Id. The statute’s text supported the same conclusion

because inducing an immigrant to enter the U.S. illegally and attempting to bring an immigrant into

the U.S. illegally necessarily require the immigrant to be located initially outside the United States.

The Circuit explained that it was very likely that the perpetrator of such a crime would be physically

proximate to the immigrant in committing the crime. Id. at 1345–48. The Circuit further noted that

the “language of § 1324(a) is distinctive, not boilerplate, and applies to a great many acts that one

customarily would expect to occur overseas.” Id. at 1348.

Mr. Campbell relies upon the Supreme Court’s 2010 Morrison decision, and other

similar cases, which require an “affirmative intention of the Congress clearly expressed” for a statute

to have an extraterritorial effect. See, e.g., Aramco,

. Morrison scolds those courts

that engage in “judicial-speculation-made-law – divining what Congress would have wanted if it had

thought of the situation before the court.”

. The ensuing inconsistencies

-11- “demonstrate the wisdom of the presumption against extraterritoriality.”

“Rather than guess

anew in each case, we apply the presumption in all cases, preserving a stable background against

which Congress can legislate with predictable effects.”

(emphasis added). “When a statute gives

no clear indication of an extraterritorial application, it has none.”

. Despite its emphasis,

Morrison left room for some consideration of context beyond the statutory text alone. “[W]e do not

say, as the concurrence seems to think, that the presumption against extraterritoriality is a ‘clear

statement rule,’ if by that is meant a requirement that a statute say ‘this law applies abroad.’

Assuredly context can be consulted as well.”

(internal citation omitted).

As pertinent here, § 666 criminalizes the actions of an “agent” of an “organization”

that receives more than $10,000 in federal benefits in a given year who “corruptly solicits or

demands for the benefit of any person, or accepts or agrees to accept, anything of value from any

person, intending to be influenced or rewarded in connection with any business, transaction, or series

of transactions of such organization . . . involving any thing of value of $ 5,000 or more.”

(a)(1)(B). The plain language of § 666 contains no direct or explicit grant of extraterritorial

application.

Mr. Campbell’s attack on the Government’s extraterritorial application of § 666

presents two distinct questions: 1) can the Government prosecute a U.S. citizen for specific kinds

of crimes against it, such as fraud, theft and bribery, when the acts occur in a foreign country but the

criminal statute contains no “textual” reference to extraterritoriality and 2) can the Government

prosecute a non-U.S. citizen for similar criminal acts?

The first question must be answered affirmatively. Not only does Bowman stand

squarely for this proposition but there is some limited evidence that Congress knew of, and

-12- approved, Bowman’s analysis. To begin, Bowman has not been overruled or explicitly limited by

any subsequent Supreme Court decision, and it has been cited and applied by circuit courts multiple

times in recent years. Only the Supreme Court has authority to overrule or vacate its decisions and

a lower court must not presume Supreme Court precedent has been limited or overruled absent

explicit indication. See, e.g., Tenet v. Doe,

, 10–11 (2005). Ultimately, if the “precedent

of this Court has direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American

Express, Inc.,

(1989). The Supreme Court has not limited or overruled Bowman.

Despite the emphasis of Morrison that the presumption against extraterritoriality

applies “in all cases,”

, recent Supreme Court jurisprudence has developed with

nary a mention of Bowman and has predominately involved civil statutes.3 No doubt courts do and

3 Many courts since Morrison have continued to find that Bowman presents an exception to, or overcomes, the presumption against extraterritoriality, or have otherwise found no tension between the two cases. See e.g., United States v. Weingarten,

, 65–67 (2d Cir. 2011) (acknowledging Morrison and then noting that, per Bowman, Congress is presumed to have intended the extraterritorial reach of criminal statutes where the nature of the crime is not dependent on the location of the acts and limiting the statute to U.S. territory would significantly diminish its effectiveness); United States v. Belfast,

, 813–14 (11th Cir. 2010) (citing Morrison for the proposition that the presumption against extraterritoriality may only be overcome by clear expression of congressional intent, which may be inferred per Bowman from the nature of the offense and whether denying extraterritoriality would limit the scope and usefulness of the statute); see also Doe v. Exxon Mobil Corp., No. 9-7125,

(D.C. Cir. July 8, 2011) (citing, without discussion, Bowman as support for Morrison’s holding that unless contrary congressional intent appears, legislation shall only apply to conduct within the territorial jurisdiction of the United States). Other courts have noted that Bowman has not been overruled or limited by subsequent caselaw. See United States v. Leija-Sanchez,

(7th Cir. 2010) (noting, in a pre-Morrison decision, that “[w]hether or not Aramco and other post-1922 decisions are in tension with Bowman, we must apply Bowman until the Justices themselves overrule it. . . . The Supreme Court has neither overruled Bowman nor suggested that the courts of appeals are free to reconsider its conclusion”); United States v. Finch, Crim. No. 10-333, 2010 U.S. Dist. LEXIS

-13- should presume criminal laws to have only domestic application absent affirmative evidence to the

contrary, see, e.g., Delgado-Garcia,

, but Morrison’s insistence on a textual

foundation in the statutory language is not found in Bowman, which relied on the Supreme Court’s

perception of an implied congressional intent of extraterritoriality for a specific grouping of crimes

against the U.S. government.

Second, § 666 falls precisely in line with the limited type of criminal statutes

addressed in Bowman: “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.”

. The Supreme

Court readily concluded that Congress had the authority to enact § 666 under the Necessary and

Proper Clause of the Constitution, Art. I, § 8, cl. 18, “to see to it that taxpayer dollars . . . are in fact

spent for the general welfare, and not frittered away in graft or on projects undermined when funds

are siphoned off.” Sabri v. United States,

(2004). The statute’s “design was

generally to ‘protect the integrity of the vast sums of money distributed through Federal programs

from theft, fraud, and undue influence by bribery.’”

at 606 (quoting S. REP . NO . 98-225, at 370

(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3511). “Money is fungible, bribed officials are

104496, at *12 (D. Haw. Sept. 30, 2010) (“Morrison neither explicitly nor implicitly overrules Bowman, which counsels courts to examine statutes with an eye toward whether Congress intended to protect the Government from crimes wherever perpetrated.”).

To be sure, a recent decision of this Court, United States v. Philip Morris USA, Inc., reiterated Morrison’s command that the presumption against extraterritoriality be applied to all statutes. Civ. No. 99-2496,

(D.D.C. Mar. 28, 2011). The Court nonetheless noted that as “the Defendants’ criminal enterprise does not implicate ‘the right of the government to defend itself,’ Bowman poses no obstacle to the proper application of Morrison here.”

at *24 n.6 (quoting Bowman,

).

-14- untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar

value.”

“Section 666(a)(2) is authority to bring federal power to bear directly on individuals who

convert public spending into unearned private gain.” Id. at 608. Thus, the purpose of § 666 parallels

that of the statute considered by the Supreme Court in Bowman and falls squarely within Bowman’s

holding.

Similarly, other courts confronted with statutes criminalizing fraud or corruption

against the United States have invoked Bowman to find the presumption against extraterritoriality

inappropriate. In a matter involving the prosecution of U.S. citizens for theft of government property

overseas under

, the Ninth Circuit found the extraterritorial application of § 641

appropriate. Acknowledging that the statute did not “express the scope of its application,” the

Circuit found it nonetheless “inconceivable that Congress, in enacting Section 641, would proscribe

only the theft of government property located within the territorial boundaries of the nation.” United

States v. Cotten,

(9th Cir. 1973). The Circuit applied Bowman’s rationale to

§ 641, recognizing that the “law certainly represents an exercise by the Government of its right to

defend itself from obstructions and frauds.” Id. Thus, the Ninth Circuit “conclude[d] that the

enactment is a member of that class of proscriptions which is not logically dependent upon the

locality of violation for jurisdiction,” and which must have extraterritorial effect. Id.; see also

United States v. Ayesh,

, 839–40 (E.D. Va. 2011) (finding “the exercise of

extraterritorial jurisdiction appropriate” for

and 208(a) – statutes criminalizing

conversion and theft of federal financial assets and conflicts of interest in federal contracting – as

“statutes targeting crimes primarily involving government personnel or assets because, consistent

with Bowman, the nature of the offenses targeted makes the presumption against extraterritorial

-15- jurisdiction inappropriate”); United States v. Finch, Crim. No. 10-333,

, at *10–12 (D. Haw. Sept. 30, 2010) (invoking Bowman to find

, prohibiting

bribery or fraud committed against the United States or its officers, reached extraterritorial conduct).4

Aside from “the necessary implication of the statute,” the Ninth Circuit in Cotten also

found persuasive evidence that the criminal venue provisions of

were amended to

establish special venue in U.S. district courts for “all offenses begun or committed upon the high

seas, or elsewhere out of the jurisdiction of any particular State or district,”

,

“because certain criminal activity against the Government and prosecutable by the Government,

including violations of Section 641, could be committed abroad, but prosecution avoided because

of defects in the venue provision.” Cotten, 471 F.2d at 750–51.5 That the criminal venue statute

4 The Supreme Court noted that

, the federal bribery law, and

, the federal theft statute, had failed to safeguard adequately the federal purse from graft and bribery, and that in response, Congress enacted § 666 “thereby filling the regulatory gaps.” See Sabri,

. It was “Congress’s decision to enact § 666 only after other legislation had failed to protect federal interests.” Id.; see also Salinas v. United States,

(1997). 5 The Ninth Circuit cited 1963 U.S.C.C.A.N. 660 et seq., part of the legislative history of

. Cotten,

n.21. That reference contains Senate Report No. 88-146, favorably reporting H.R. 2842 to amend the venue statute at

. See S. REP . NO . 88- 146, at 1 (1963), reprinted in 1963 U.S.C.C.A.N. 660, 660; see also H.R. 4842, 111th Cong. (2009). The Senate Committee on the Judiciary noted that the amendment would cure two defects which hampered prosecution of “Federal crimes committed outside the United States,” which “have increased proportionately” “with the spread of U.S. interests overseas.” S. REP . NO . 88-146, at 1. The amendment would permit indictment and trial of an offender or joint offenders in the district where any of them is arrested or first brought and would prevent the running of the statute of limitations when an offender is beyond the bounds of the United States. “Such crimes committed abroad may include treason, fraud against the Government, theft or embezzlement of Government property, bribery, etc., as well as conspiracy to commit such offenses.”

The Senate Committee specifically commented that it was “satisfied that the enactment of this legislation will sustain and implement a decision of the Supreme Court of the United States in United States v. Bowman,” which “held that citizens of the United States, while outside the United States, are subject to penal laws passed by the United States to protect itself and its property.”

.

-16- § 3238 was amended to aid the prosecutions foreseen by Bowman, with the Senate Judiciary

Committee citing the operable language from Bowman, supports this conclusion. See Bowman,

(relying, in part, on the venue provision).

The answer to the first question presented by Mr. Campbell’s motion is, therefore,

that the United States can prosecute U.S. citizens who commit limited kinds of crimes against the

government, including violations of § 666, even when those crimes are committed outside the

nation’s boundaries.

Whether such a prosecution can proceed against a non-U.S. citizen presents a more

complex question. Mr. Campbell is an Australian citizen who was associated with the IOM in

Afghanistan, awarding contracts to Afghani companies. He was apprehended in India. None of the

events underlying his Indictment occurred in the United States or U.S. territory and he argues that

there is no nexus between his alleged criminal activities and the United States, such as in Bowman

where the defendants were U.S. citizens and arrested in New York. See Def.’s Reply [Dkt. # 23] at

3. The precise argument does not serve because the presence of the Bowman defendants in New

York had nothing to do with their crime, although their U.S. citizenship was specially noted by the

Court and, since then, by the Senate Committee on the Judiciary.

To be sure, Bowman addressed the prosecution of three defendants who were U.S.

citizens, but noted that a fourth, “a subject of Great Britain,” had not been apprehended.

. The Court commented that “it will be time enough to consider what, if any, jurisdiction the

District Court below has to punish him when he is brought to trial.”

at 102–03. There is no

record that the fourth defendant was ever apprehended or tried.

The D.C. Circuit, however, has already instructed that “the citizenship of the

-17- defendants[] is irrelevant” because “Bowman’s logic did not depend on th[e] fact” that only U.S.

citizen defendants were before the Court and that the ruling “was much more pointed than that.”

Delgado-Garcia, 374 F.3d at 1345–46; see also Ayesh,

(finding Bowman

applies equally to non-U.S. citizens). The D.C. Circuit found its “more pointed” logic in the Court’s

reference to Congress’s extension of the fraud statute, “theretofore limited to government

departments,” to corporations in which the U.S. was a shareholder, clearly intending to protect the

Emergency Fleet Corporation which was expected to, and did, engage in international business.

Delgado-Garcia,

. Because many persons who would defraud the Emergency Fleet

Corporation would clearly do so overseas, which is why the statute was given extraterritorial effect,

the Circuit concluded that a lack of U.S. citizenship does not lessen Bowman’s force.

Mr.

Campbell’s alleged bribery was in connection with the payments of USAID monies, a federal agency

which is expected to engage in, and does engage in, a most extensive international aid program.

With such a similar basis, this Court finds it is bound by Delgado-Garcia to conclude that Mr.

Campbell’s status as a non-citizen of the United States does not bar his prosecution. It answers the

second question posed above in the affirmative, based on these particular facts and precedents.

B. Due Process

Mr. Campbell next argues that even if § 666 applies extraterritorially, his prosecution

under § 666 violates his rights to due process under the Fifth Amendment to the U.S. Constitution,

which provides that “[no] person shall be . . . deprived of life, liberty, or property, without due

process of law.” U.S. CONST . amend. X. Whether the test for due process in such a circumstance

requires a “sufficient nexus” to the United States, commonly understood as real effects or

consequences accruing in this country, or prosecution that is neither arbitrary or capricious has split

-18- the circuits.

One line of cases reasons that “[i]n order to apply extraterritorially a federal criminal

statute to a defendant consistently with due process, there must be a sufficient nexus between the

defendant and the United States so that such application would not be arbitrary or fundamentally

unfair.” United States v. Davis,

, 248–49 (9th Cir. 1990) (internal citation omitted);

see also United States v. Yousef,

(2d Cir. 2003); United States v. Mohammad-

Omar,

, 261 (4th Cir. 2009) (unpublished). These courts look for real effects or

consequences accruing in the United States before they find such nexus. “The nexus requirement

serves the same purpose as the ‘minimum contacts’ test in personal jurisdiction. It ensures that a

United States court will assert jurisdiction over a defendant who ‘should reasonably anticipate being

haled into court’ in this country.” United States v. Klimavicius-Viloria,

(9th

Cir. 1998) (quoting World-Wide Volkswagen Corp. v. Woodson,

(1980)); see also

Delgado-Garcia,

(explaining, without deciding, that even if due process requires

a sufficient nexus, the indictment in that case “clearly alleged that appellants intended to smuggle

aliens into the United States, thereby causing effects there” so that “there was no arguable facial

constitutional infirmity in the indictment”).

In contrast, several circuits require only that extraterritorial prosecution be neither

arbitrary nor fundamentally unfair, and are not concerned with whether a sufficient nexus exists.

See, e.g., United States v. Martinez-Hidalgo,

(3rd Cir. 1993) (rejecting

sufficient nexus test and noting there was “nothing fundamentally unfair” about the defendant’s

prosecution); United States v. Cardales,

(1st Cir. 1999) (“To satisfy due process,

our application of the [criminal statute] must not be arbitrary or fundamentally unfair.”); United

-19- States v. Suerte,

(5th Cir. 2002) (rejecting sufficient nexus requirement). In

many circumstances, to be sure, it may be that “[t]his difference is less real than apparent; the

existence of a nexus is what makes the prosecution neither arbitrary nor fundamentally unfair.”

United States v. Shahani-Jahromi,

, 728 n.9 (E.D. Va. 2003).

The Indictment alleges that Mr. Campbell was engaged with IOM to determine CHEF

project awards of USAID monies to rebuild Afghanistan; that he attempted to bribe a recipient of

such awards, ABC, for steering contracts, paid for by the United States, to it; and that he wanted the

money for his personal enrichment. Mr. Campbell is alleged to have demanded and received U.S.

currency in payment for past awards of USAID funds to ABC and in furtherance of future such

awards, if USAID were to provide additional monies. Given the allegations, Mr. Campbell

understood that his ability to steer future awards depended on greater United States financing. These

facts, presumed at the moment to be true, provide a sufficient nexus to the United States so that Mr.

Campbell’s prosecution here would be neither fundamentally unfair nor arbitrary. It was the promise

of lucrative USAID-funded contracts that Mr. Campbell used to obtain a bribe from ABC, and it was

this U.S.-financed benefit to IOM that Mr. Campbell used for his own personal enrichment. The

Indictment further alleges that Mr. Campbell frankly spoke of his risks of prosecution and

incarceration, and that he clearly understood the link between the contracts and United States

financing. Mr. Campbell reasonably should have anticipated being haled into a court in the United

States.

Whether a “sufficient nexus” or “arbitrary or fundamentally unfair” test is used on

these facts, Mr. Campbell’s prosecution meets the requirements of the Due Process Clause. His

actions directly implicated American interests in preserving the integrity of its vast sums of donated

-20- monies to be free from corruption, bribery and fraud. See Yousef,

(finding no due

process violation because “it cannot be argued seriously that the defendants’ conduct was so

unrelated to American interests as to render their prosecution in the United States arbitrary or

fundamentally unfair”); see also United States v. Brehm, Crim. No. 11-11,

, at *16–17 (E.D. Va. Mar. 30, 2011) (finding no due process violation because defendant’s

conduct directly impacted United States’s interests in Afghanistan). Not only might Mr. Campbell’s

actions hold the United States up to opprobrium in Afghanistan, every instance of such connivance

robs USAID money from its intended purpose, hinders the United States’s substantial efforts in

Afghanistan, and also robs USAID of support for its efforts from the U.S. taxpayer. To make up

funds so mis-directed, Congress must appropriate additional funds. The impact on the purse,

purpose and reputation of the United States government is clear.

The Court can find no violation of Mr. Campbell’s due process rights.

C. International Law

Mr. Campbell argues that his prosecution violates customary international law.6

Customary international law proffers bases for the exercise of legislative jurisdiction, which is

transgressed when jurisdiction is asserted beyond such bases or in breach of a specific legal

limitation. “[I]nternational law itself imposes limits on the extraterritorial jurisdiction that a

domestic court may exercise. It generally recognizes five theories of jurisdiction, the objective

6 Whereas the presumption against “extraterritoriality” speaks to the principle that Congress generally does not intend U.S. laws to apply within the territorial jurisdiction of another nation, the present argument, in effect, invokes the presumption against “extrajurisdictionality,” that is, “a presumption that federal law does not extend beyond the jurisdictional limits set by international law.” John H. Knox, A Presumption Against Extrajurisdictionality, 104 AM . J. INT ’L L. 351, 352 (2010).

-21- territorial, national, passive, protective and universal.” Tel-Oren v. Libyan Arab Republic,

, 781 n.7 (D.C. Cir. 1984). These five general principles are:

Territorial, wherein jurisdiction is based on the place where the offense is committed;

National, wherein jurisdiction is based on the nationality of the offender;

Protective, wherein jurisdiction is based on whether the national interest is injured;

Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetrator of certain offenses considered particularly heinous and harmful to humanity; and

Passive personal, wherein jurisdiction is based on the nationality of the victim.

United States v. Yunis,

, 899–900 (D.D.C. 1988). An act of Congress should not

be construed in a manner that violates the laws of nations if a non-violative interpretation is possible.

Hartford Fire Ins. Co. v. California,

(1993) (“Though it clearly has constitutional

authority to do so, Congress is generally presumed not to have exceeded those customary

international-law limits on jurisdiction to prescribe.”).

Here, the protective principal – specifically articulated in Bowman7 – supports the

prosecution of Mr. Campbell. “The protective principle permits a nation to assert jurisdiction over

a person whose conduct outside the nation’s territory threatens the nation’s security or could

potentially interfere with the operation of its governmental functions.” United States v. Romero-

Galue,

(11th Cir. 1985); see also United States v. Alomia-Riascos,

Bowman,

(approving prosecution for overseas criminal conduct under “such laws as [the United States] might pass to protect itself and its property”).

-22- 769, 771 (4th Cir. 1987) (“The protective principle of international law permits a nation to assert

subject matter criminal jurisdiction over a person whose conduct outside the nation’s territory

threatens the national interest.”). “The protective principle does not require that there be proof of

an actual or intended effect inside the United States. The conduct may be forbidden if it has a

potentially adverse effect and is generally recognized as a crime by nations that have reasonably

developed legal systems.” United States v. Gonzalez,

(11th Cir. 1985).

Bribery in connection with contracts backed by U.S. financing is illegal precisely

because it implicates and adversely affects the interests and purse of the United States. The United

States has the right “to defend itself against obstruction, or fraud wherever perpetrated.” Bowman,

; see also Ayesh,

(finding protective principle justified

prosecution because statutes “which target government theft and corruption, certainly advance an

important national interest that cannot be understated”). The protective principle amply supports

prosecution of Mr. Campbell in this Court.

D. Defendant as Agent

Finally, Mr. Campbell challenges the accuracy of the factual allegations of the

Indictment, most particularly its reference to him as an “agent” of IOM. He asserts that he was an

employee of the Christian Thomas Group Global, a private business entity from the British Virgin

Islands, and not employed by IOM at all. Thus, he argues, he cannot be prosecuted as an agent of

IOM or, in the statutory terms, an agent of an organization that receives federal funds.

This argument cannot be resolved on the face of the Indictment and, even if accurate

in fact, is not necessarily complete or accurate at law. First, the Court must assume the facts alleged

in the Indictment are true at this stage of the proceedings and there is nothing on the face of the

-23- Indictment to support Mr. Campbell’s argument. An indictment need only contain “a plain, concise,

and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim.

P. 7(c). An indictment does not need to put forth all evidence the Government plans to present.

United States v. Ring,

(D.D.C. 2009). Instead, “at the pretrial stage, the

indictment ordinarily should be tested solely by its sufficiency to charge an offense, regardless of the

strength or weakness of the government’s case.” United States v. Risk,

(7th Cir.

1988) (citing United States v. Sampson,

, 78–79 (1962)). It would be, at best, an

“unusual circumstance” for a “district court to resolve the sufficiency of the evidence before trial

because the government is usually entitled to present its evidence at trial and have its sufficiency

tested by a motion for acquittal under Rule 29 of the Federal Rules of Criminal Procedure.” United

States v. Yakou,

(D.C. Cir. 2005). The Court finds no such unusual circumstance

here.

In addition, as a matter of law, Mr. Campbell might be found to have occupied a role

in which he exerted such control or power with regard to IOM and CHEF contracts that he

constituted an IOM “agent” for current purposes even if he were not technically an IOM employee.

Section 666(d)(1) defines “agent” broadly, as “a person authorized to act on behalf of another person

or a government and, in the case of an organization or government, includes a servant or employee,

and a partner, director, officer, manager, and representative.”

(d)(1); United States

v. Sotomayor-Vazquez,

(1st Cir. 2001) (finding that “the inclusion of ‘employee’ in the

statutory language as a separate qualification suggests that the definition of agent includes

‘directors,’ ‘managers,’ and ‘representatives’ who are not technically employees”). Certainly, there

is no way currently to reach any such conclusion, but the possibility alone that the Government could

-24- demonstrate that Mr. Campbell acted as an agent of IOM dooms his motion to dismiss based on his

asserted non-employment with IOM because the statute is not limited to employees.

Inasmuch as this portion of the motion to dismiss rests on contested facts, it cannot

be determined at this time and will be denied without prejudice.

IV. CONCLUSION

The Court concludes that Defendant’s alleged violation of

(a)(1)(B)

in a foreign country may be prosecuted in this country without violating the principle against

extraterritorial application of U.S. law, Defendant’s due process rights, or customary international

law. The motion to dismiss the Indictment based on these legal arguments will be denied. The

motion to dismiss based on arguments that Mr. Campbell was not an “agent” of an organization

receiving USAID funds will be denied without prejudice as premature at this stage of the

proceedings. A memorializing Order accompanies this Memorandum Opinion.

Date: July 27, 2011 /s/ ROSEMARY M. COLLYER United States District Judge

-25-