General Discussion

Where a court is faced with the issue of extraterritorial jurisdiction, the analysis to be applied is 1) whether the United States has the power to reach the conduct in question under traditional principles of international law; and 2) whether the statutes under which the defendant is charged are intended to have extraterritorial effect. As Noriega concedes, the United States has long possessed the ability to attach criminal consequences to acts occurring outside this country which produce effects within the United States. Strassheim v. Daily, 221 U.S. 280, 285, 31 S. Ct. 558, 560, 55 L. Ed. 735 (1911); Restatement (Third) of the Foreign Relations Law of the United States [hereinafter Restatement (Third)] ง 402(1) (c). For example, the United States would unquestionably *1513 have authority to prosecute a person standing in Canada who fires a bullet across the border which strikes a second person standing in the United States. See Restatement (Third) ง 402, Comment d. "All the nations of the world recognize `the principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done ...'" Rivard v. United States, 375 F.2d 882, 887 (5th Cir.) (citations omitted), cert. denied, 389 U.S. 884, 88 S. Ct. 151, 19 L. Ed. 2d 181 (1967). The objective territorial theory of jurisdiction, which focuses on the effects or intended effects of conduct, can be traced to Justice Holmes' statement that "[a]cts done outside a jurisdiction, but intended to produce or producing effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power." Strassheim v. Daily, 221 U.S. at 285, 31 S. Ct. at 560. See also Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234, 2 L. Ed. 249 (1804) ("[a nation's] power to secure itself from injury may certainly be exercised beyond the limits of its territory.&quot . Even if the extraterritorial conduct produces no effect within the United States, a defendant may still be reached if he was part of a conspiracy in which some co-conspirator's activities took place within United States territory. United States v. Baker, 609 F.2d 134, 138 (5th Cir. 1980). The former Fifth Circuit, whose decisions establish precedent for this Court, has on numerous occasions upheld jurisdiction over foreigners who conspired to import narcotics into the United States but never entered this country nor personally performed any acts within its territorial limits, as long as there was proof of an overt act committed within the United States by a co-conspirator. See United States v. Postal, 589 F.2d 862 (5th Cir.), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 40 (1979); United States v. Cadena, 585 F.2d 1252 (5th Cir.1978); United States v. Winter, 509 F.2d 975 (5th Cir.), cert. denied, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41 (1975); Rivard v. United States, supra.

More recently, international law principles have expanded to permit jurisdiction upon a mere showing of intent to produce effects in this country, without requiring proof of an overt act or effect within the United States. See United States v. Wright-Barker, 784 F.2d 161, 168 (3rd Cir. 1986); United States v. Postal, 589 F.2d at 886, n. 39; United States v. Columba-Colella, 604 F.2d at 358, 360. According to the Restatement (Third):


Cases involving intended but unrealized effect are rare, but international law does not preclude jurisdiction in such instances, subject to the principle of reasonableness. When the intent to commit the proscribed act is clear and demonstrated by some activity, and the effect to be produced by the activity is substantial and foreseeable, the fact that a plan or conspiracy was thwarted does not deprive the target state of jurisdiction to make its law applicable.
ง 402, Comment d.

In the drug smuggling context, the `intent doctrine' has resulted in jurisdiction over persons who attempted to import narcotics into the United States but never actually succeeded in entering the United States or delivering drugs within its borders. The fact that no act was committed and no repercussions were felt within the United States did not preclude jurisdiction over conduct that was clearly directed at the United States. United States v. Wright-Barker, supra ("The purpose of these [narcotics laws] is to halt smugglers before they introduce their dangerous wares into and distribute them in this country.&quot (emphasis in original); United States v. Quemener, 789 F.2d 145, 156 (2d Cir.), cert. denied, 479 U.S. 829, 107 S. Ct. 110, 93 L. Ed. 2d 58 (1986); United States v. Loalza-Vasquez, 735 F.2d 153, 156 (5th Cir.1984); United States v. Baker, 609 F.2d at 138-39.