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UKbust-300x200In Morrison v. National Australia Bank, 561 U.S. 247 (2010), the Supreme Court applied the presumption against extraterritoriality to securities fraud statutes. Again in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013), the Supreme Court applied the presumption and held the plaintiff lacked extraterritorial jurisdiction under the Alien Tort Statute.  In 2016, however, in RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090 (2016), the Court held the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply extraterritorially. But the Court severely limited the application of RICO to foreign conduct that violates “a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially.” Still, the Court held RICO’s private right of action does not overcome the presumption. Thus, the Supreme Court has revived the presumption against extraterritoriality and reinforced a high burden to overtake the canon to apply a law extraterritorially.

Under 959(c)(2) cases, a member of a drug conspiracy who are actually on board the aircraft have had their convictions upheld. See United States v. Epskamp F.3d 154 (2nd. Cir. 2016) (conspirators on board aircraft with cocaine on runway); United States v. Knowles,  197 F. Supp. 3d 143 (D.D.C. 2016), later affirmed by United States v. Thompson 921 F.3d 263 (D.C. Cir. 2019) (pilot and primary trafficker arrested in Haiti when US-registered aircraft was detained);  United States v. Bodye, 172 F. Supp.3d 15 (D.C. Cir. 2016) (conspirators actually flew cocaine on US-registered planes); United States v. Lawrence, 727 F.3d 386 (5th Cir. 2019) (United States citizen defendants personally transported drugs on commercial airplanes from South America to United Kingdom); United States v. Rojas, 812 F.3d 382 (5th Cir. 2016) (one defendant piloted plane with 600 kilograms of cocaine).

AirplaneAisle-300x200However, there 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 v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255, (2010)   “The presumption against extraterritoriality is only a presumption; it is overcome by clearly expressed Congressional intent for a statute to apply extraterritorially.” Weiss v. Nat’l Westminster Bank PLC, 768 F.3d 202, 211 (2d Cir. 2014)United States v. Vilar, 729 F.3d 62, 72 (2d Cir. 2013) (recognizing that presumption against extraterritoriality applies to criminal, as well as civil, statutes but that “it is beyond doubt that, as a general proposition, Congress has the authority to enforce its laws beyond the territorial boundaries of the United States” (internal quotations omitted)).  Because the presumption is only “a canon of statutory interpretation,” Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013), whether Congress evinces an intent for the law to apply extraterritorially is likewise a question of statutory interpretation. See, e.g., United States v. MacAllister, 160 F.3d 1304, 1307 (11th Cir. 1998) (“Whether Congress has intended extraterritorial application is a question of statutory interpretation.”); United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir. 1990) (“Whether 18 U.S.C. § 2251(a) applies to Thomas’ extraterritorial acts is, therefore, a question of statutory interpretation.”).

Airplane-300x202I was having a few flashbacks to civil procedure class in a recent Federal extradition case recently.  In law school, we had to learn the International Shoe standard of “minimum contacts which do not disturb traditional notions of fair play and substantial justice” according to International Shoe, whereby a state in America obtains jurisdiction over a citizen of another American state.  Like trial lawyers, the United States wants its jurisdiction to spread far and wide.  It is a principal of Admiralty law that the United States has jurisdiction oceanwide.   Congress has also passed several laws to extend Federal criminal law jurisdiction as broadly as possible around the world.

This jurisdiction extends to people onboard international air flights.  21 U.S.C. 959(c) states:

Possession, manufacture, or distribution by person on board aircraft

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