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What Is The American Matrix? DOJ Supplement (continued...)
- by John Paul Jones
How much "authority" does the Department of Justice really have? Since the FBI was created by the Attorney General does their authority extend beyond the DOJ's jurisdiction and/or authority? Let us explore. [emphasis added throughout] United States Attorney’s Manual on the Department of Justice web page at USAM. 662 Maritime, Territorial and Indian Jurisdiction -- Generally Jurisdiction over most personal and property crimes within our Federal system is vested in the states. The Federal government enacts criminal laws primarily for the protection of its own functions (e.g., 18 U.S.C. § 1001); personnel [Protection of officers and employees of the United States] (e.g., 18 U.S.C. § 1114); and property (e.g., 18 U.S.C. § 641). It intrudes into the area generally left to the states only where special circumstances warrant its providing auxiliary law enforcement assistance to the states unable to act beyond their borders (e.g., 18 U.S.C. §§ 659, 2113, 2314). For Federal jurisdiction to exist, the underlying conduct must be based upon or linked to some "nexus," such as use of the mail, 18 U.S.C. § 1341, interstate commerce, 18 U.S.C. § 2314, or Federal insurance, 18 U.S.C. § 2113. There are, in addition, certain instances in which the special relationship the United States Government bears to the site of the offense provides the rationale and basis for the exercise of plenary criminal jurisdiction. It is with this latter class of offenses that this chapter is concerned. October 1997 Criminal Resource Manual 662 1001 states: "Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully - ...." Whoa! Stop right there. "within the jurisdiction of the executive, legislative, or judicial branch..."? Just how far does jurisdiction of the three branches of government extend into the Union States? (c)says: "With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to -" (1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate In the Notes on Sec. 1001. it says some very intersting things. HISTORICAL AND REVISION NOTES Based on title 18, U.S.C., 1940 ed., Sec. 80 (Mar. 4, 1909, ch. 321, Sec. 35, 35 Stat. 1095; Oct. 23, 1918, ch. 194, 40 Stat. 1015; June 18, 1934, ch. 587, 48 Stat. 996; Apr. 4, 1938, ch. 69, 52 Stat. 197). Section 80 of title 18, U.S.C., 1940 ed., was divided into two parts. The provision relating to false claims was incorporated in section 287 of this title. Reference to persons causing or procuring was omitted as unnecessary in view of definition of "principal" in section 2 of this title. Words "or any corporation in which the United States of America is a stockholder" in said section 80 were omitted as unnecessary in view of definition of "agency" in section 6 of this title. Wait a minute! The words "or any coporation in which the United States of America is a stockholder" were omitted as unecessary in view of the definition of "agency" in section 6* of Title 18? Hmmmmm. What does the "definitions" under section 6* have to say about all this?* SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 14, 24, 981, 982, 1345, 3059A of this title; title 2 section 437g; title 7 sections 12a, 136h, 511r, 1314i, 5662, 6519; title 8 section 1324a; title 12 section 1833a; title 15 sections 637, 657a, 6003; title 17 section 1312; title 19 sections 2515, 3391, 3432; title 22 sections 1623, 3622; title 35 section 25; title 40 section 276c; title 42 sections 2000b-3, 2000c-6, 3426, 3795a; title 43 section 1212; title 49 section 5307 NO TITLE 26 MENTIONED HERE IS THERE? Although I realize that the actual "internal revenue laws" are spread out through several titles the absence of Title 26 is interesting in and of itself. NO? Section 6 Sec. 6. - Department and agency defined As used in this title: The term "department" means one of the executive departments enumerated in section 1 of Title 5*, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. The term "agency" includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense Notes on Sec. 6. SOURCE June 25, 1948, ch. 645, 62 Stat. 685. HISTORICAL AND REVISION NOTES This section defines the terms "department" and "agency" of the United States. The word "department" appears 57 times in title 18, U.S.C., 1940 ed., and the word "agency" 14 times. It was considered necessary to define clearly these words in order to avoid possible litigation as to the scope or coverage of a given section containing such words. (See United States v. Germaine, 1878, 99 U.S. 508, 25 L. Ed. 482, for definition of words ''department'' or ''head of department.'') The phrase "corporation in which the United States has a proprietary interest" is intended to include those governmental corporations in which stock is not actually issued, as well as those in which stock is owned by the United States. It excludes those corporations in which the interest of the Government is custodial or incidental REFERENCES IN TEXT Section 1 of Title 5*, referred to in text, was repealed by Pub. L. 89-554, Sec. 8, Sept. 6, 1966, 80 Stat. 632, and reenacted by the first section thereof as section 101 of Title 5, Government Organization and Employees SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 14 of this title; title 12 section 1821 Sec. 101. - Executive departments The Executive departments are: The Department of State. The Department of the Treasury. The Department of Defense. The Department of Justice. The Department of the Interior. The Department of Agriculture. The Department of Commerce. The Department of Labor. The Department of Health and Human Services. The Department of Housing and Urban Development. The Department of Transportation. The Department of Energy. The Department of Education. The Department of Veterans Affairs. Department of Justice USAM Title 9 Criminal Resource Manual 663 Special Maritime and Territorial Jurisdiction A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed "within the special maritime and territorial jurisdiction of the United States." See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. The term "special maritime and territorial jurisdiction of the United States" is defined in eight subsections of 18 U.S.C. § 7. These subsections relate to maritime jurisdiction, 18 U.S.C. §§ 7(1), 7(2); lands and buildings, 18 U.S.C. § 7(3); Guano Islands, 18 U.S.C. ڍ(4); aircraft, 18 U.S.C. § 7(5); spacecraft, 18 U.S.C. § 7(6); places outside the jurisdiction of any nation, 18 U.S.C. § 7(7); and foreign vessels en route to and from the United States, 18 U.S.C. § 7(8). Department of Justice USAM Title 9 Criminal Resource Manual 666 Proof of Territorial Jurisdiction There has been a trend to treat certain "jurisdictional facts" that do not bear on guilt (mens rea or actus reus) as non-elements of the offense, and therefore as issues for the court rather than the jury, and to require proof by only a preponderance that the offense was committed in the territorial jurisdiction of the court to establish that venue has been properly laid. See United States v. Bowers, 660 F.2d 527, 531 (5th Cir. 1981); Government of Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979); United States v. Black Cloud, 590 F.2d 270 (8th Cir. 1979) (jury question); United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974). The court in Government of Canal Zone v. Burjan, 596 F.2d at 694-95, applied the preponderance test to determinations of whether or not the offenses took place within the Canal Zone which established not merely proper venue but subject matter jurisdiction as well. Other cases, however, hold that the issue of whether the United States has jurisdiction over the site of a crime is a judicial question, see United States v. Jones, 480 F.2d 1135, 1138 (2d Cir. 1973), but that the issue of whether the act was committed within the borders of the Federal enclave is for the jury and must be established beyond a reasonable doubt. See United States v. Parker, 622 F.2d 298 (8th Cir. 1980); United States v. Jones, 480 F.2d at 1138. The law of your Circuit must be consulted to determine which approach is followed in your district. The decision in Burjan should be viewed with caution. The analogy between territorial jurisdiction and venue has much to recommend it. Nevertheless, it is important to recognize that the two are not of equal importance. As the Burjan court noted, citing Fed. R. Crim. P. 12, subject matter jurisdiction is so important that it cannot be waived and may be noticed at any stage of the proceeding, see Government of the Canal Zone v. Burjan, 596 F.2d at 693, whereas the Ninth Circuit in Powell rested its ruling that venue need be proved by only a preponderance on the relative unimportance of venue as evidenced by its waivability. There is a clear distinction between the question of which court of a sovereign may try an accused for a violation of its laws and whether the sovereign's law has been violated at all. Proof of territorial jurisdiction may be by direct or circumstantial evidence, and at least at the trial level may be aided by judicial notice. See United States v. Bowers, 660 F.2d at 530-31; Government of Canal Zone v. Burjan, 596 F.2d at 694. Compare Government of Canal Zone v. Burjan, 596 F.2d 690 with United States v. Jones, 480 F.2d 1135, concerning the role judicial notice may play on appeal. Department of Justice USAM Title 9 Criminal Resource Manual 668 Limited Criminal Jurisdiction Over Property Held Proprietorially Although it has been continually emphasized in the preceding material that the United States may not exercise criminal jurisdiction over property that it holds only in a proprietorial capacity, it would be more accurate to state that the United States is not wholly without the power to protect its property and control its use. State jurisdiction "does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what is commonly known as the police power." See Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917) (finding constitutional authority in the Property Clause, Art. IV, Sec. 3, cl. 1). There are a number of specific statutes that are applicable independently of 18 U.S.C. 7(3) and the acquisition of legislative jurisdiction. Included among these statutes is 18 U.S.C. § 1382 (entering military, naval or Coast Guard property). See United States v. Holmes, 414 F. Supp. 831, 837 n. 9 (D.Md. 1976)(finding constitutional authority for 18 U.S.C. § 1382 in the Property Clause and/or the military power clauses, Const., Art. I, Sec. 8, cls. 12 and 14, aided by the Necessary and Proper Clause, Art. I, Sec. 8, cl. 18). On occasion, courts have upheld convictions for trespass and minor police offenses that violated regulations made criminal by statute when the offenses were committed on land and facilities held proprietorially finding the authority to punish the offense in the Property Clause and/or in the specific constitutional provision authorizing the performance of the function. See, e.g., United States v. Seward, 687 F.2d 1270, 1277 (10th Cir. 1982), cert. denied, 459 U.S. 1147 (1983) (conviction for trespass on NRC facility upheld on basis of Property Clause); United States v. Gliatta, 580 F.2d 156 (5th Cir. 1978) (conviction of traffic offenses on postal facility upheld on basis of Property Clause and/or postal power, Art. 1, Sec. 8, cl. 7, aided by the Necessary and Proper Clause). 678 The General Crimes Act -- 18 U.S.C. § 1152 Under 18 U.S.C. § 1152 the "general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, . . . extend to the Indian country." The "laws" thus extended are those applicable within the Special Maritime and Territorial Jurisdiction of the United States, as defined in 18 U.S.C. § 7, popularly known as "federal enclave laws." See United States v. Markiewicz, 978 F.2d 786 (2d Cir. 1991), cert. denied, sub nom. Beglen v. United States, 113 S. Ct. 1065 (1993). Among these statutes are: arson, 18 U.S.C. § 81; assault, 18 U.S.C. § 113; maiming, 18 U.S.C. § 114; theft, 18 U.S.C. § 661; receiving stolen property, 18 U.S.C. § 662; murder, 18 U.S.C. § 1111; manslaughter, 18 U.S.C. § 1112, and sexual offenses, 18 U.S.C. § 2241 et. seq. The Assimilative Crimes Act, 18 U.S.C. § 13, is also one of those extended to the Indian country by 18 U.S.C. § 1152, allowing the borrowing of state law when there is no applicable federal statute. Williams v. United States, 327 U.S. 711 (1946); Duro v. Reina, 495 U.S. 676, 680 n. 1 (1990). There are four exceptions to the coverage of § 1152, three of them legislative and the fourth judicially created. The second paragraph of 18 U.S.C. § 1152 specifies the three legislative exceptions: This section shall not extend [1] to offenses committed by one Indian against the person or property of another Indian, nor [2] to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or [3] to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. It should be emphasized that these exceptions apply only to those laws extended to Indian country by section 1152--the so-called "federal enclave laws." The exceptions do not exempt Indians from the general criminal laws of the United States that apply to acts that are federal crimes regardless of where committed, such as bank robbery, counterfeiting, sale of drugs, and assault on a federal officer. See United States v. Young, 936 F.2d 1050 (9th Cir. 1991)(assault on federal officer and firearms); United States v. Blue, 722 F.2d 383 (8th Cir. 1983)(narcotics); United States v. Smith, 562 F.2d 453 (7th Cir. 1977), cert. denied, 434 U.S. 1072 (1978)(assault on federal officer). Despite the explicit holdings in three Circuits that jurisdiction exists over violation of statutes of general applicability, one court of appeals recently held that such statutes do not automatically apply to offenses in Indian country involving only Indians unless there is an independent federal interest to be protected. See United States v. Markiewicz, 978 F.2d 786 (2d Cir. 1992), cert. denied, sub nom., Beglen v. United States, 113 S. Ct. 1065 (1993). The court went on to hold that each of the statutes charged in the case, 18 U.S.C. § 1163 (theft of tribal funds), 18 U.S.C. § 844(i) (arson of property in interstate commerce), 18 U.S.C. § 1513 (witness tampering), 18 U.S.C. § 402 (contempt), 18 U.S.C. § 1621 (perjury), and 18 U.S.C. § 2101 (riot), reflected such an independent interest or that its violation had not occurred in Indian country. Markiewicz was explicitly rejected in United States v. Begay, 42 F.3d 486 (9th Cir. 1994), which held that 18 U.S.C. § 371 (conspiracy) applied in Indian country even though it is not a crime enumerated in 18 U.S.C. § 1153. See also United States v. Yannott, 42 F.3d 999 (6th Cir. 1994)(18 U.S.C. § 922). The exceptions stated in the second paragraph of § 1152 also do not apply to violations of § 1153, United States v. Wheeler, 435 U.S. 313 (1978), or the liquor law provisions, 18 U.S.C. §§ 1154, 1161. United States v. Cowboy, 694 F.2d 1234 (10th Cir. 1982). The fourth exception to the broad coverage of § 1152 was created by the Supreme Court. Notwithstanding its literal terms, the Supreme Court significantly narrowed the reach of 18 U.S.C. § 1152 in United States v. McBratney, 104 U.S. 621 (1882), holding that, absent treaty provisions to the contrary, the state has exclusive jurisdiction over a crime committed in the Indian country by a non-Indian against another non-Indian. Accord, Draper v. United States, 164 U.S. 240 (1896). Subsequent decisions have acknowledged the rule. See, e.g., United States v. Wheeler, 435 U.S. 313, 325 n. 21 (1978); United States v. Antelope, 430 U.S. 641, 643 n. 2 (1977); Williams v. United States, 327 U.S. 711, 714 (1946). Department of Justice USAM Title 9 Criminal Resource Manual 670 Maritime Jurisdiction Section 7 of Title 18 provides that the "special territorial and maritime jurisdiction of the United States" includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. Until recently the term "high seas" was always understood as intending the open and unenclosed waters of the sea beginning at low-water mark. In re Ross, 140 U.S. 453, 471 (1891); Murray v. Hildreth, 61 F.2d 483 (5th Cir. 1932); see also United States v. Rodgers, 150 U.S. 249 (1893) (Great Lakes). Although it has become common of late to use the term to describe waters beyond a marginal belt or "territorial sea" over which a nation claims special rights, see, e.g., United States v. Louisiana, (Louisiana Boundary Case), 394 U.S. 11, 22-23 (1969); United States v. Postal, 589 F.2d 862, 868 (5th Cir.), cert. denied, 444 U.S. 832 (1979), the classic definition, contemporaneous with this statute's development, is the correct one. The territorial sea was extended from 3 to 12 nautical miles by Presidential Proclamation 5928 of December 27, 1988.
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