Last Friday prior to oral argument on the motion, Judge James Selna (C.D. of Cal.) – as is often his custom – publicly released (here) his tenative ruling on the Carson defendants’ Travel Act motion to dismiss.  As detailed in this prior post, the defendants, among other things, argued that the Travel Act does not apply extraterritorially.  As detailed in this post, the DOJ in opposition argued, among other things, that because the majority of defendants’ unlawful conduct was based in the U.S. resort to extraterritorial application was not necessary and even if it was  the plain language of the Travel Act, the legislative history, and case law all indicate that the Travel Act does apply extraterritorially.

In his tenative ruling, Judge Selna denied defendants’ motion to dismiss.  In sum, Judge Selna tenatively concluded that: (1) “an extraterritorial analysis is unnecessary because the criminal offense was completed domestically, and (2) even if an extraterritorial analysis is implicated, the Travel Act counts are proper.”  As to (1), Judge Selna stated as follows.  “All the elements under the Travel Act were allegedly satisfied in California even if the target of Defendants’ commercial bribery scheme was overseas” thus making an extraterritorial analysis “unnecessary.” 

As to (2) above, an issue of greater big picture importance, Judge Selna stated as follows.   ”… [C]riminal statutes may apply extraterritorially even without an explicit Congressional statement. In deciding whether criminal statutes apply extraterritorially, courts ‘must consider the language and function of the prohibition.’  [...]  The Court agrees with the Government that ‘plain language of the Travel Act demonstrates Congress’s desire to reach conduct overseas.’”  

As to defendants’ position that “the subsequent enactment of the FCPA provides a clear inference that the Travel Act was not intended to apply extraterritorially,” Judge Selna disagreed and stated that ”multiple criminal statutes can often be applied to the same criminal conduct” and he did “not discern any conflict between the Travel Act and the FCPA.”  Judge Selna also rejected defendants’ void-for-vagueness challenge.