Call For Scholarship: The Travel Act

We’ve talked about the Carson case and the defendants’ challenge to the Travel Act counts.

Extraterritoriality, jurisdiction, and due process (in other words, the threshold questions) are at issue.

Before the Carson briefs were in, a reader asked us about Travel Act jurisdiction over foreign issuers. We did some research and came up with very little. And we weren’t alone.

The only non-judicial source the government cited was the Travel Act’s legislative history. The Carson defendants’ used the legislative history, and also the Ninth Circuit Model Criminal Jury Instructions, a book about jury instructions, and a chapter from the Corporate Counsel’s Guide to Doing Business in China.

In the Corporate Counsel’s Guide, Patrick Norton wrote:

Because of the Travel Act’s domestic focus, one commentator observed: The validity of [Travel Act] charges [for foreign commercial bribery] may be questioned. The legislative histories of the FCPA and the Travel Act show no evidence that Congress intended to make foreign commercial bribes a federal crime; indeed, quite the opposite. The legislative histories of many state bribery statutes similarly fail to disclose any intention to reach bribery in other countries that has, at best, a limited nexus to the state. Travel Act charges predicated on bribery laws of those states thus require overlooking the intentions of both Congress and the state legislature. In the half century that the Travel Act has been in effect, moreover, only one federal court has upheld criminal charges for foreign commercial bribery under that Travel Act, and that court’s decision is a doubtful precedent.

In our search, we went back to 1983 for a law review article that included a discussion about the Travel Act (58 Notre Dame L. Rev. 1027).

But between Norton’s work and the 1983 piece, there was a big gap.

A good time for some fresh thinking about the Travel Act will be after the trial court’s ruling on the Carson defendants’ motion to dismiss.

Download the defendants’ motion and memorandum here.

We linked the government’s reply in our post here.

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Here are excerpts from the 1983 article in the Notre Dame Law Review:

. . . . . The Interstate and Foreign Travel in Aid of Racketeering Enterprises Act, more commonly known as the Travel Act, was enacted in 1961. It was part of Attorney General Robert Kennedy’s fight against organized crime and racketeering but its use has expanded.

“Broadly stated, the Travel Act makes it a federal offense to travel interstate, or to use any interstate facilities, with intent to: (1) distribute the proceeds of any unlawful activity; (2) commit a violent crime in furtherance of any unlawful activity; or (3) promote or facilitate any unlawful activity. The Act defines ‘unlawful activity’ to include any business enterprise involving gambling, illegal liquor, narcotics, or prostitution offenses, as well as conduct involving extortion, bribery or arson.

“The Travel Act reaches anyone who: (1) travels in or uses a facility of interstate commerce with intent to promote or facilitate unlawful activity; and (2) who thereafter actually performs or attempts to perform an act in furtherance of those activities.

“The use of an interstate facility or means of interstate travel to promote an unlawful activity provides federal courts with jurisdiction over crimes which would otherwise require local prosecution. Travel Act liability can attach even though a defendant does not reasonably foresee that he will be engaged in interstate activity. Likewise, a defendant may be convicted under the Travel Act without proof that he knowingly caused interstate travel or use of an interstate facility.

“The Travel Act, however, does require that the defendant use an interstate means, intending to promote or carry on an unlawful activity.”

The Travel Act has withstood constitutional challenges under the tenth amendment (state powers) and fifth amendment (due process, based on arguments that the law is vague and ambiguous).

“Some defendants have also asserted that the Act infringes upon first amendment freedoms. They have argued that, by regulating the use of interstate communication facilities, the Travel Act abridges freedom of speech. Courts have consistently upheld the Travel Act in face of these assertions, since the first amendment does not protect unlawful speech.”