The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
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 18 U.S.C. § 666(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.
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 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 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 18 U.S.C. § 666(a)(1)(B). Id. ¶ 14.
The United States initiated sealed criminal proceedings against Mr.
Campbell by filing a criminal complaint on July 23, 2010,*fn1
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 18 U.S.C. §
666(a)(1)(B)*fn2 and a claim for criminal forfeiture
under 18 U.S.C. § 981(a)(1)(C) and 28
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.
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 Lines v. United States, 342 U.S. 337, 343 n.16 (1952); see also United States v. Ferris, 807 F.2d 269, 271 (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, 371 U.S. 75, 76 (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, 374 F.3d 1337, 1341--43 (D.C. Cir. 2004) (criminal prosecution); Morrison v. Nat'l Australian Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (civil litigation). The Court maintains original jurisdiction under 18 U.S.C. § 3231, which vests original jurisdiction in the district courts over all offenses against the laws of the United States. See 18 U.S.C. § 3231. In the end, the "district court's subjectmatter jurisdiction . . . include[s] the power to decide whether the indictment charged a proper 'offense.'" Delgado-Garcia, 374 F.3d at 1342.
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 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, 130 S. Ct. at 2877 (quoting EEOC v. Arabian Am. Oil Co. ("Aramco"), 499 U.S. 244, 248 (1991) (superseded by Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071)). "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." Id. "It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters." Id. Therefore, "unless there ...