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over South West Africa. 123 UNITED STATES v. PIZZARUSSO
j States may also agree to exercise jurisdiction jointly United States Court of Appeals, Second Circuit, 1968.
over a territory. The resulting arrangement, the so-called 388 F.2d 8 126
JUDGE. This case is of interest because it brings
condominium, may call for a joint or some form of MEDINA, CIRCUIT
divided administration of the conjoint sovereignty of the before this Court for the fist time the question of the jurisdiction of the
District Court to indict and convict a foreign citizen of the crime of
parties. Under one such agreement the United Kingdom knowingly making a false statement under oath in a visa application to
and France govern the New Hebrides. 124 Neither party an American consular official located in a foreign country, in violation of
may exercise separate authority over the New Hebrides; 18 U.S.C. Section 1546.1 Supreme Court cases give some guidance but
however, each retah sovereignty over its nationals. De- none of them passes on this question directly. 2 A Ninth Circuit deci-
sion, Rocha v. United States, 288 F.2d. 545 (9th Cu.),cert.denied 366
pending on t!le subject matter, a resident may be subject
U.S. 948, 81 S.Ct. 1902,6 L.Ed.2d 1241 (1961), is in point but we sus-
to one of several courts. The Joint Court administers law tain jurisdiction on the basis of somewhat different reasons.
binding on all residents. National Courts, of which there The indictment charges that on March 4, 1965 Jean Philomena
are two, administer the pertinent laws of either the United PizzanrssowilfuUy made under oath a number of false statements in her
Kingdom or France. Each has jurisdiction over the na- "Application for Immigrant Visa and Alien Registration" at the Ameri-
can Consulate, Montreal, Canada. Each of these false statements was
tionals of the state whose laws it administers. Nationals of
patently material to the matter in hand. For example: she falsely swore
other states must opt for the legal system of one of the that since her sixteenth birthday her only places of residence for six
parties. months or more had been London, England and Montreal, Canada; she
g. The types of jurisdictional arrangements based on falsely swore that she had been in the United States only for short visits
agreement with the territorial state of most interest and for pleasure; she falsely swore that she had never been arrested, and so
relevance to the military attorney are those concerning on. Although at all times pertinent to this case she was a citizen of
Canada, she was taken into custody in the Southern District of New
U.S. military forces stationed overseas. These agree-
York on April 18, 1966.
ments-the Military Assistance Advisory Group
Upon the issuance of the visa and by its use Mrs. Pizzarusso im-
(MAAG) Agreement, the Military Mission Agreement,
mediately entered the territory of the United States, but this fact is not
and the Status of Forces Agreement (SOFA) will be ex-
alleged in the indictment nor required by the tern of the statue, nor is
amined fully in chapter 10.
it material, as we find the crime was complete when the false statements
were made to an American consular official in Montreal. We shall return
4-9. Jurisdiction Based on Protection of Certain State,
later to this feature of the case.
Universal, and Other Interests. a. Protective Principles.
The evidence to sustain the charge is so ovewhelming that we shall
not pause to discuss it. Indeed, the only contention made on this appeal
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
is that the District Court lacked jurisdiction to indict appellant and con-
OF THE UNITED STATES (1965)
vict her of the crime alleged. 3 As we fid no lack of jurisdiction, we
5 33. Protective Principle affi the judgment. Our reasons follow.
(1) A state has jurisdiction to prescribe a rule of law attaching legal ...
consequences to conduct outside its territory that threatens its International law has recognized, in varying degrees, five bases of ju-
security as a state or the operation of its governmental functions, pro- risdiction with respect to the enforcement of the criminal law. See Har-
vided the conduct is generally recognized as a crime under the law of vard Research In International Law, Jurisdiction with Respect to Crime,
states that have reasonably developed legal systems. 29 Am.J.Int'l L.Spec.Supp. 435, 445 (1935) (hereinafter cited as Har-
(2) Conduct referred to in Subsection (1) includes in particular the vard Research). Thus both the territoriality and nationality principles
counterfeiting of the state's seals and currency, and the falsification of under which jurisdiction is determined by either the situs of the crime or
its official documents. the nationality of the accused, are universally accepted. The thud basis,
Section 33 of Restatement, Second, accurately reflects an the protective principle, covers the instant case. By virtue of this theory
a state "has jurisdiction to prescribe a rule of law attaching legal conse-
extraterritorial theory of jurisdiction known as the protec- quences to conduct outside its territory that threatens its security as a
tive principle. An accepted, but ill-defined jurisdictional state or the operation of its governmental functions, provided the con-
concept, this theory stands for the proposition that a state duct is generally recognized as a crime under the law of states that have
may exercise its jurisdiction over a national of another reasonably developed legal systems." Restatement (Second), Foreign
country who commits a particular act in his or a third state. Relations, Section 33 (1965). See also Harvard Research Section 7.5
Traditionally, the United States has relied primarily upon the ter-
The necessary jurisdictional linklies in the fact that the act ritoriality and nationality principles, Harvard Research at p. 543, and
is one directed against and adversely affecting particular judges have often been reluctant to ascribe extraterritorial effect to
interests of the state exercising this form of jurisdic-
tion. 125 1 . Fraud and misuse of visas, permils and other entry documents: "Whoever knowingly
mnkes under oath my false statement with respect to a material fact in my application, allidavit,
(1) A concise explanation of the U. S. view of the or other document roquind by the immigration laws or regulations pr&W thereunder, or
protective principle, as well as a clearly articulated distinc- knowingly presenls any such application, allidavit, or other document containing any such false
slatement--shall be fied not more than S2,000 or imprisoned not more than live years, or
tion between this concept and the objective territorial
both." '
principle, is found in the following case. 2. UnlredSIotes v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). cited by sp
pllbeasauthority for upholding jurisdiction in the instant case is distinguishable, as thnt easein-
volved imposition of crimii lisbility on United Slntes citizens for acts committed abroad.
123. The U.N. and many other states now refer to South West 3. Appellant wived a one-year suspended sentenoe and was placed on probation for two
Africa as Namibia. Y-.
5 .The other two principles an universality, where jurisdiction is determined by the custody
124. Protocol respecting the New Herbrides, Aug. 6, 1914, [I9221
of the person committing the olTense and passive personality, where jurisdidon is determined
Gr. Brit. T.S. 7, Cmd. 1681, 10 L.N.T.S. 333. by reference to the nationality of the person ~ured.Harvard Research at p. 445.
12'. C. Hyde, Znternational Law, 804-07 (2d rev. ed. 1945). 126. Cert. denied, 392 U.S. 936, 88 S.Ct. 2306 (1968).