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statutes. See, e.g., American Banana Co. v. United Emit Co., 213 U.S. aliens were charged with making false statements in im-
347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). Nonetheless, our courts have migration applications while they were outside the United
developed what has come to be termed the objective territorial principle States. The court discussed the territorial and the protec-
as a means of expanding the power to control activities detrimental to tive principles in the following terms:
the state. This principle has been aptly defmed by Mr. Justice Holmes in
Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560,55 L.Ed.735 Acts committed outside the territorial limits of the State but intended
(191 1). "Acts done outside a jurisdiction, but intended to produce and to produce, or producing, effects withim the boundaries of the State are
producing detrimental effects within it, justify a state in punishing the subject to penal sanctions; . . .Where the effect is felt by private persons
cause of the harm as if he had been present at the effect * * * ." See also within the State, penal sanctions rest on the "objective," or "subjec-
Judge Learned Hand's opinion in United States v. Aluminum Co. of tive," territorial principle . . . Where the effect of the acts committed
America, 148 F.2d. 416 (2d Cir. 1945). Underlying this principle is the outside the United States is felt by the government, the protective theo-
theory that the ''detrimental effects" constitute an element of the ry affords the basis by which the state is empowered to punish all those
offense and since they occur within the country, jurisdiction is properly offenses which impinge upon its sovereignty, wherever these actions
invoked under the territorial principle. See also Restatement (Second), take place and by whomever they may be committed. The results of
Foreign Relations Law Section 18. such a theory are, in many ways, similar to those reached in the
However, the objective territorial principle is quite distinct from the Strassheim case ...where the court directed its attention to the objec-
protective theory. Under the latter, all the elements of the crime occur tive results of the criminal act and the location of its effect. Any act
in the foreign country and jurisdiction exists because these actions have which would offend the sovereignty of a nation must, of necessity, have
a "potentially adverse effect" upon security or governmental functions, some effect within the territorial limits of that state or there would be no
Restatement (Second) Foreign Relations Law, Comment to Section 33 adverse effect upon the government justifying a penal sanction. 128
at p. 93, and there need not be any actual effect in the country as would (3) The court in Pizzarusso holds the principle to be
be required under the objective temtorial principle. Courts have often
failed to perceive this distinction. applicable because the conduct of the aliens abroad had a
Thus, the Nmth Circuit, 6 in upholding a conviction under a factual "potentially adverse effect" upon the governmental func-
situation similar to the one in the instant case, relied on the protective tion. The Court in Rodriguez holds the principle applicable
theory, but still felt constrained to say that jurisdiction rested partially on because the conduct of the aliens abroad of necessity had
the adverse effect produced as a result of the alien's entry into the "some effect" upon the governmental function in the
United States. The Ninth Cucuit also cited Strassheim and Aluminum
Company of America as support for its deckion. W~th all due reference United States. It may be that the difference between the
to our brothers of the Ninth Cucuit, however, we think this reliance is two formulations is metaphysical. What is important,
unwarranted. A violation of 18 U.S.C.A. Section 1546 is completeas the however, is the wiJlingness of both courts to use the pro-
time the alien pe jures himself in the foreign criminal sanctions of Sec- tective principle. The alternative in both cases would have
tion 1546 will never be enforced unless the defendant enters the coun- been to hold that an effect in the territory had taken place
try, but entry is not an element of the statutory offense. Were the
statute re-drafted and entry made a part of the crime we would then be when the aliens entered the United States. Had the courts
presented with a clear case of jurisdiction under the objective territorial involved adopted this position, they would have reflected
principle. a traditional attitude towards the protective principle, for
Statutes imposing criminal liability on aliens for committing pe jury in little use has been made of it in the United States in the
United States Consulates in foreign countries have been in existence for past. A manifestation of this traditional attitude can be
over one hundred years, see, e.g., 22 U.S.C. Section 1203, which was
derived from an act of 1856, and oftentimes courts have routinely sus- found in legislation concerning counterfeiting: it is a
tained convictions without even considering the jurisdictional question. Federal offense to counterfeit foreign currency in the
See, e.g., United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cu. United States, but not a Federal offense to counterfeit
1956).7 Only one court has ever held that the United States did not
have jurisdiction to proceed against an alien under the legislation United States currency abroad.
governing this case. United States v. Baker, 136 F. Supp. 546 (S.D.N.Y. (4) It is beyond doubt that the protective principle
1955). In Baker it was conceded that there was authority for deporting applies to crimes such as the counterfeiting of state seals,
an alien for making perjurious statements to a United States Consul,
United States ex re]. Majka v. Palmer, 67 F.2d 146 (7th Cu. 1933), but currency, stamps, passports or other public documents.
the court thought the imposition of criminal sanctions was "far Most states punish these offenses wheresoever and by
different" from deportation and dismkd the indictment. We would whomever committed. The danger, however, is that the
have sustained jurisdiction in Baker had the case been before us, and in principle can be abused due to its susceptibility to prac-
this view we are apparently joined by the judge who decided Baker, since
he presided over the instant case in the court below. tically unlimited expansion. The danger is particularly
Affumed. great when the principle is formulated in broad terms, as it
often is, and made to cover any crime against the security,
(2) In United States v. Rodriguez, 127 the defendant
temtorial integrity, or political indept3ndence of the state.
6. Roeha v. UnifedSfufes,288 F.2d 545 (9th Cu.),cerf. denied. 366 U.S. 948, 81 S.Ct. b. Nationality of the Victim. This so-called "passive
1902; 6 L.Ed.2d 1241 (1961).
7 .One other court has upheldjurisdiction under a statute comparable to 18U.S.C. -on personality" theory has failed to gain universal acceptance
1546on an alternativeground. The District court for the Southern District of California, relying and has always been challenged by the United States. The
in pan on the lerrilorialprinciple, sustained the convictionof an.alienfor falseswearingin a visa
application, on the somewhat novel theory that the United StatesConsulate was pan of United concept is based on the proposition that a state may exer-
States territory. United Sfufes v. Archer, 51 F. Supp. 708 (1943).
cise its jurisdiction on the basis of the nationality of the
127. 182 F. Supp 479(1960). Affumed sub nom. Rocha v. United
States, 288 F.2d 545 (1961), with respect to the substantive counts of victim. Two cases serve to demonstrate this principle.
the indictment, reversed as to conspiracy counts not at issue in
Rodriguez, cert. denied, 366 U.S. 948, 81 S.Ct. 1902 (1961). 128. 182 F. Supp. 488-89.