Use of the Travel Act to Prosecute Foreign Commercial Bribery

The Lingering Effect of Bowman

The district court did not limit its analysis to ruling that defendants' alleged conduct did not require an extraterritorial application of the Travel Act. The court also found that the Travel Act could be applied extraterritorially despite the presumption adopted in Morrison. (The U.S. Supreme Court in 2010 held in Morrison v. Nat'l Austl. Bank Ltd. that ' 10(b) of the Securities Exchange Act of 1934 provides no “cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges.”
130 S. Ct. 2869, 2875 (2010)). Noting that Morrison examined a civil enforcement provision of the Securities Exchange Act of 1934, the district court ruled that the presumption against extraterritoriality ' according to Supreme Court precedent that was not discussed, let alone overruled, in Morrison ' does not apply with the same force to criminal statutes. The district court relied for that proposition on a 1922 decision, United States v. Bowman, which involved a criminal conspiracy to defraud a U.S. corporation that was planned and executed entirely outside the United States. 260 U.S. 94, 98 (1922). In upholding the indictment in Bowman, the Supreme Court recognized that limiting the jurisdiction of U.S. courts in criminal cases to acts committed solely within the territory of the United States would “leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home.” Id. (holding that criminal statutes, “as a class, [are] not logically dependent on their locality for the government's jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated … “). For that reason, extraterritorial application may be inferred for certain criminal laws from the nature of the offense, notwithstanding the general rule that failure by Congress to express its intent to apply the law extraterritorially will limit its reach to conduct wholly within U.S. territory. Id.