Academic journal article Suffolk Transnational Law Review

Transnational Law - Requirement of a Territorial Nexus to the United States Limits Extraterritorial Application of United States Criminal Law - United States V. Weingarten

Academic journal article Suffolk Transnational Law Review

Transnational Law - Requirement of a Territorial Nexus to the United States Limits Extraterritorial Application of United States Criminal Law - United States V. Weingarten

Article excerpt

TRANSNATIONAL LAW--REQUIREMENT OF A TERRITORIAL NEXUS TO THE UNITED STATES LIMITS EXTRATERRITORIAL APPLICATION OF UNITED STATES CRIMINAL LAW--United States v. Weingarten, 632 F.3d 60 (2d Cir. 2011).

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. …

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