ORDER GRANTING MOTIONS TO DISMISS

CHARLES R. BREYER, District Judge.

In this case, the United States government urges the application of federal criminal statutes to prosecute foreign defendants for foreign acts involving a foreign governmental entity. The government has charged Defendants Yuri Sidorenko, Alexander Vassiliev, and Mauricio Siciliano with five counts: (1) Conspiracy to Commit Honest Services Wire Fraud, in violation of 18 U.S.C. § 1349; (2) Honest Services Wire Fraud, in violation of 18 U.S.C. §§ 2, 1343; (3) Conspiracy to Solicit and to Give Bribes Involving a Federal Program, in violation of 18 U.S.C. § 371; (4) Soliciting Bribes Involving a Federal Program, in violation of 18 U.S.C. §§ 2, 666(a)(1)(B); and (5) Giving Bribes involving a Federal Program, in violation of 18 U.S.C. §§ 2, 666(a)(2). Two of the three defendants1 move to dismiss the Indictment ("Ind."), arguing: (1) that the Indictment fails to state an offense because the wire fraud and bribery charges do not apply extraterritorially; (2) that the charges violate due process because there is an insufficient domestic nexus to prosecute Defendants in the United States; (3) that the wire fraud and bribery charges are defective as alleged; and (4) that Defendant Siciliano enjoys immunity from prosecution by virtue of his employment with a United Nations specialized agency. See generally Motions to Dismiss ("MTDs") (dkts.32-33).

The Court hereby GRANTS the Motions to Dismiss based on Defendants' first two arguments, and does not reach the second two arguments.

I. BACKGROUND2

The International Civil Aviation Organization ("ICAO") is a United Nations specialized agency headquartered in Montreal, Canada. Ind. ¶¶ 1, 8. One of ICAO's responsibilities is standardizing machine-readable passports. Id. ¶ 2. The standards that ICAO established were used to determine which features would be utilized in passports in a variety of countries, including the United States. Id. From 2005-2010, the United States, a member of ICAO, made annual monetary contributions to ICAO exceeding $10,000 per year. Id. ¶¶ 1, 3. Those contributions constituted 25% of ICAO's annual budget.3 Id.

Siciliano was an employee of ICAO and was specifically assigned to work in the Machine Readable Travel Documents Programme. Id. ¶ 8. Siciliano worked and resided in Canada, where ICAO is headquartered. Id. He held a Canadian passport but is a Venezuelan national. Id. Sidorenko and Vassiliev4 were chairmen of a Ukranian conglomerate of companies that manufactured and supplied security and identity products, called the EDAPS Consortium ("EDAPS"). Id. ¶¶ 4, 7-8.5 Sidorenko is a citizen of Ukraine, Switzerland, and St. Kitts & Nevis, but he primarily resided in Dubai during the relevant time period. Id. ¶ 6. Vassiliev also resided in Dubai, but he is a citizen of Ukraine and St. Kitts & Nevis. Id. ¶ 7.

Sidorenko and Vassiliev provided money and other things of value to Siciliano in exchange for Siciliano using his position at ICAO, in Canada, to benefit EDAPS, in Ukraine, as well as Sidorenko and Vassiliev, in Dubai, personally. Id. ¶ 10. Siciliano, working in Canada, sought to benefit the Ukrainian conglomerate EDAPS by introducing and publicizing EDAPS to government officials and entities, by arranging for EDAPS to appear at ICAO conferences, and by endorsing EDAPS to other organizations or business contacts. Id. ¶¶ 11-12.

Siciliano assisted Vassiliev's girlfriend in obtaining a visa to travel to Canada in 2007. Id. ¶ 15. Around the same time, Siciliano also considered arranging to obtain a visa for Sidorenko by hiring Sidorenko as a consultant for ICAO. Id. ¶ 16. Additionally, the three defendants arranged to have Defendant Siciliano's son sent to Dubai to work for Sidorenko. Id. ¶ 20. During this time period, Siciliano, who worked in Canada, wrote an e-mail message to Vassiliev, residing in Dubai, seeking payment of "dues" via wire transfer to a Swiss bank account. Id. ¶ 17.

A few years later, Siciliano, still in Canada, sent an e-mail advising Vassiliev and Sidorenko, still in Dubai, that they owed him three months' payment. Id. ¶ 18. A few weeks after this email, Siciliano sent another email to Vassiliev referencing future projects, receiving "the fruits of [their] marketing agreement[,]" and inquiring about picking up his dues. Id. ¶ 19.

All of this conduct occurred outside of the United States between three defendants who are not United States citizens, who never worked in the United States, and whose use of wires did not reach or pass through the United States. See generally id.

II. LEGAL STANDARD

On a motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b), the allegations of the indictment must be viewed as a whole and taken as true. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952); Buckley, 689 F.2d at 897. The indictment "shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c). The Ninth Circuit has held that "an indictment setting forth the elements of the offense is generally sufficient." United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir.2004); see also United States v. Woodruff, 50 F.3d 673, 676 (9th Cir. 1995) ("In the Ninth Circuit, `[t]he use of a "bare bones" information — that is one employing the statutory language alone — is quite common and entirely permissible so long as the statute sets forth fully, directly[,] and clearly all essential elements of the crime to be punished.'") Additionally, when considering a motion to dismiss the indictment, the indictment "should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." United States v. Berger, 473 F.3d 1080, 1103 (9th Cir.2007) (citing United States v. King, 200 F.3d 1207, 1217 (9th Cir.1999)). Finally, in reviewing a motion to dismiss, the Court "is bound by the four corners of the indictment." United States v. Boren, 278 F.3d 911, 914 (9th Cir.2002).

III. DISCUSSION

A. Extraterritorial Application of Criminal Statutes

Siciliano and Vassiliev both argue that the Indictment should be dismissed because the crimes charged do not apply extraterritorially. See generally MTDs. The Court agrees.

1. Morrison

In Morrison v. Nat'l Australia Bank Ltd., the Court considered the extraterritorial application of Section10(b) of the Securities Exchange Act. 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court held without dissent that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none." Id. at 255, 130 S.Ct. 2869. (emphasis added). Although Morrison was a civil case, the Court stated that it applies "the presumption [against extraterritorial application] in all cases." Id. at 261, 130 S.Ct. 2869. Additionally, the Court held that inferences regarding what Congress might have intended are insufficient; for a court to apply a statute extraterritorially, Congress must give a "clear" and "affirmative indication" that the statute applies extraterritorially. Id. at 265, 130 S.Ct. 2869; see also Kiobel v. Royal Dutch Petroleum Co., ___ U.S. ___, 133 S.Ct. 1659, 1665, 185 L.Ed.2d 671 (2013) (holding that the Alien Tort Claims Act does not have extraterritorial effect because "nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach") (emphasis added).

After Morrison, lower courts began to reconsider the extraterritorial application of various federal statutes. See, e.g., Loginovskaya v. Batratchenko, 764 F.3d 266, 271-72 (2d Cir.2014) (holding that the Commodities Exchange Act cannot be applied extraterritorially). Post-Morrison, the Ninth Circuit held that "RICO does not apply extraterritorially in a civil or criminal context." United States v. Chao Fan Xu, 706 F.3d 965, 974 (9th Cir.2013). The Ninth Circuit also recognized that Morrison created a "strong presumption that enactments of Congress do not apply extraterritorially." Keller Found./Case Found. v. Tracy, 696 F.3d 835, 844 (9th Cir.2012). However, the Ninth Circuit has yet to decide whether the bribery and wire fraud statutes at issue in this case have extraterritorial reach. See United States v. Kazzaz, 592 Fed.Appx. 553, 554 (9th Cir.2014) (holding, as to a defendant charged with numerous counts, one of which was wire fraud, that the court need not reach the issue of extraterritorial application: "Because the stipulated facts show a sufficient domestic nexus with the United States for the mail-fraud and wire-fraud counts, we need not address whether these statutes have extraterritorial application.").6

Relying on Morrison, Vassiliev and Siciliano argue that because the statutes, as enacted, do not contain "a clear indication of an extraterritorial application[,]" the Indictment fails to state an offense. See 561 U.S. 247, 254, 130 S.Ct. 2869; Vassiliev MTD at 5-9.

Two provisions of the bribery statute are charged here. Ind. ¶¶ 34-37. The first bribery provision is violated when a defendant

18 U.S.C. § 666(a)(1)(B). The second bribery provision is violated when a defendant

18 U.S.C. § 666(a)(2); see also Ind. ¶¶ 27-28. In neither bribery provision is there clear language indicating extraterritorial application.

The same is true of the wire fraud statute charged in this case, which provides:

18 U.S.C. § 1343; see also Ind. ¶¶ 27-28. Congress did not include in the wire fraud statute any language indicating that it applies extraterritorially.7 The wire fraud statute does mention "foreign commerce." 18 U.S.C. § 1343. But this mere mention does not overcome the presumption against extraterritoriality. In fact, Morrison addressed statutes that include the phrase "foreign commerce" and held that "even statutes that contain a broad language in their definitions of `commerce' that expressly refer to `foreign commerce' do not apply abroad." 561 U.S. at 262-63, 130 S.Ct. 2869 (quoting EEOC v. Arabian Am. Oil Co. ("Aramco"), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)); see also European Community v. RJR Nabisco, Inc., 764 F.3d 129 (2d Cir.2014) (holding after Morrison, that [Section] 1343 cannot be applied extraterritorially).

Indeed, the government agreed at the motion hearing that "[t]here is nothing in the text of [either statute]" to indicate extraterritorial application. See Tr. (dkt.47) at 8:4-5. Under Morrison, without a "clear" and "affirmative indication" of Congress's intent to have the bribery and wire fraud statutes apply extraterritorially, the presumption is that they do not. See 561 U.S. at 265, 130 S.Ct. 2869.

2. Bowman

The government argues, however, that a 1922 Supreme Court case allows for the wire fraud and bribery statutes to apply abroad. Resp. at 4-14. In United States v. Bowman, the Court held that a statute criminalizing conspiracy to defraud a corporation in which the United States was the sole stockholder applied extraterritorially. 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). While Bowman may still be good law, the government's reliance on it here is misplaced. Bowman involved United States citizens who were working for a corporation that was wholly owned by the United States. Id. at 94-95, 43 S.Ct. 39. Those facts are very different from the facts at hand, which involve foreign citizens working for foreign entities, and whose actions were "begun and committed outside" of the United States. See, e.g., Ind. ¶¶ 25, 37. Indeed, in Bowman, in addition to the three United States citizen defendants to whom the Court's holdings applied, there was a fourth defendant, a "subject of Great Britain," who had not been apprehended. 260 U.S. at 102, 43 S.Ct. 39. As to that defendant, the Bowman court held that "it will be time enough to consider what, if any, jurisdiction the District Court below has to punish him when he is brought to trial." Id. at 102-03, 43 S.Ct. 39 (emphasis added). This is hardly a ringing endorsement for the application of American criminal laws to foreign actors.

Further, the government acknowledges Bowman's holding that "frauds of all kinds" would not have extraterritorial application:

Bowman, 260 U.S. at 98, 43 S.Ct. 39 (emphasis added); Resp. at 6. However, the government points to subsequent language in Bowman that carves out an exception for a narrow class of criminal statutes:

Bowman, 260 U.S. at 98, 43 S.Ct. 39 (emphasis added); see also Resp. at 6. The government latches on to the phrase "not logically dependent on [its] locality for the government's jurisdiction," ignores the language about the alleged fraud having been committed "by [the United States's] own citizens, officers, or agents," and fails to point the Court to any legislative history supporting the notion that either statute was "enacted because of the right of the government to defend itself." See Resp. at 9; Bowman, 260 U.S. at 98, 43 S.Ct. 39 (emphasis added).

That a statute might today be a desirable tool for the government to use in defending itself does not mean that it was enacted with today's circumstances in mind. One cannot in good faith argue that the generic wire fraud statute charged here, of which the United States is not the only or inevitable victim, was "enacted because of the right of the government to defend itself against" foreign frauds. See Bowman, 260 U.S. at 98, 43 S.Ct. 39. The bribery statute charged here at least pertains to "bribery concerning programs receiving Federal Funds," which recognizes a federal interest, but its focus on agents of "an organization, or of a State, local, or Indian tribal government, or any agency thereof" suggests that Congress's concern was bribes paid to domestic government organizations. See 18 U.S.C. § 666(a). The Court therefore distinguishes the opinion of the district court in United States v. Campbell, 798 F.Supp.2d 293, 303 (D.D.C.2011), which found that Section 666 applied extraterritorially.8 The court in Campbell held that Section 666's "design was generally `to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery.'" Id. at 304. Given that purpose, and a defendant who accepted bribes while working as a contractor for a United States agency abroad, and would receive those American funds, id. it is no surprise that the court found that Section 666 allowed the government to reach a non-citizen.

The government's theory here is that because the United States funds a portion of ICAO, Bowman allows it to prosecute an offense committed against ICAO using the bribery and wire fraud statutes. See Resp. at 9. The cases the government cites in support of this theory, including Campbell, involve United States citizens, events that occurred in or passed through the United States, and/or events that directly affect the territory or agencies of the United States. See, e.g., Cotten, 471 F.2d 744 (finding, where two United States citizens committed crime, that it was "inconceivable that Congress, in enacting Section 641 [theft of government property], would proscribe only the theft of government property located within the territorial boundaries of the nation").9 This case involves wholly foreign conduct and wholly foreign actors. In addition, unlike in Campbell, there are no allegations here actually implicating the government's interest in "protect[ing] the integrity of the vast sums of money distributed through Federal programs." See id. at 304. There is no allegation that even one dollar of the millions of dollars the United States presumably sent to ICAO was squandered. Congress could not, in enacting Section 666, have envisioned that it could be applied extraterritorially to prosecute foreign crime in which the United States's investment was not harmed.

3. Conclusion as to Extraterritoriality

At the motion hearing, the Court asked government counsel to imagine a hypothetical in which (1) the United States sent money to Mexico for programs involving security at the border, and (2) an official in Mexico running one aspect the security program took a bribe from his brother-in-law in exchange for getting his brother-in-law's child a job. Tr. at 9:17-23. The Court asked the government whether the government could prosecute that Mexican official, and the government responded that such a prosecution would be appropriate under Section 666 (and under Section 1343 if it involved a wire). Tr. at 9:24-10:5. That assertion illustrates the government's overreach here. Of course, the United States has some interest in eradicating bribery, mismanagement, and petty thuggery the world over. But under the government's theory, there is no limit to the United States's ability to police foreign individuals, in foreign governments or in foreign organizations, on matters completely unrelated to the United States's investment, so long as the foreign governments or organizations receive at least $10,000 of federal funding. This is not sound foreign policy, it is not a wise use of scarce federal resources, and it is not, in the Court's view, the law.

Because there is no clear indication of extraterritorial intent in either statute as required by Morrison, nor does either statute fall into the narrow class of cases "enacted because of the right of the government to defend itself against ... fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents," identified in Bowman, the Court finds that neither statute applies extraterritorially.10

B. Due Process

Vassiliev and Siciliano also argue that the Indictment must be dismissed because the Due Process Clause requires a sufficient domestic nexus, and the Indictment fails to allege this. See, e.g., Vassiliev MTD at 9-11. Again, the Court agrees.

In the Ninth Circuit, "in order to apply extraterritorially a federal criminal statute to a defendant consistent with due process, there must be a sufficient nexus between the defendant and the United States so that such an application of a domestic statute to the alleged conduct would not be arbitrary or fundamentally unfair." United States v. Davis, 905 F.2d 245, 248-49 (9th Cir.1990) (internal citation omitted). This requirement "ensures that a United States court will assert jurisdiction only over a defendant `who should reasonably anticipate being haled into court' in this country." United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir.1998) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980)).

Vassiliev and Siciliano argue that the only nexus between them and the United States is that the United States partially funds ICAO, the United Nations agency for which Siciliano (but neither Vassiliev nor Sidorenko) worked. See Vassiliev MTD at 10. Both defendants characterize this link as tenuous. See Vassiliev MTD at 10. The government makes two notable counterarguments. See Resp. at 14-15.11

First, the government contends that it does not violate due process "in instances in which charged conduct involve[s] non-U.S. citizens and occurred entirely abroad[,]" because a "`jurisdictional nexus exists when the aim of that activity is to cause harm inside the United States.'" Resp. at 14 (citing United States v. Mostafa, 965 F.Supp.2d 451, 458 (S.D.N.Y.2013)). The government subsequently cites various cases from other circuits upholding jurisdiction where defendants had the intent to cause harm inside the United States. Id. at 14-15 (citing, e.g., United States v. Al Kassar, 660 F.3d 108 (2d Cir.2011); United States v. Brehm, 691 F.3d 547, 552-53 (4th Cir.2012)). Even accepting this argument, no aim to harm the United States is alleged anywhere in this Indictment. There is nothing in the Indictment to support the proposition that any of the Defendants knew that the conduct alleged even involved the United States. This case is therefore fundamentally different from one involving the prosecution of terrorists who plotted outside of the United States to bomb American airplanes in Asia, see United States v. Yousef, 327 F.3d 56, 112 (2d Cir.2003), and the government's belief that the cases are analogous, see Resp. at 15, is troubling.

Second, the government contends that the domestic nexus is satisfied by the United States's financial interest, because it pays millions of dollars annually to ICAO, and by the United States's security interest, because ICAO's work involves travel and identity documents. See id. at 14. The government cites to literally zero authority in support of this contention. Moreover, as with the government's position about the extraterritorial reach of the relevant statutes, its argument that any financial or security interest supports a domestic nexus proves too much. If everything that had an impact on national security gave the United States the right to drag foreign individuals into court in this country, the minimum contacts requirement would be meaningless. Our financial contributions to a foreign organization which does work involving travel and identity documents, and which employs (or employed) someone who illicitly arranged to have his son sent to Dubai, do not "present[] the sort of threat to our nation's ability to function that merits application of the protective principle of jurisdiction." See United States v. Peterson, 812 F.2d 486, 494 (9th Cir.1987). Moreover, the money that the United States sent to ICAO probably increases the contacts that the United States has with ICAO, but it is difficult to see how it results in adequate contacts with Siciliano, who neither lived in, worked in, nor directed any of his alleged conduct at the United States, let alone Sidorenko or Vassiliev, who did not even work for ICAO. The government also nowhere explains how much money the United States must send to a foreign employer (or the foreign employer of an individual one is bribing) to satisfy the minimum contacts requirement as to a foreign employee (or the individuals bribing him). In the hypothetical the Court gave the government at the motion hearing, the United States certainly has a financial interest in the money it sends to Mexico, and a security interest in the border. But it would be both arbitrary and fundamentally unfair to assert jurisdiction over the corrupt Mexican official or his brother-in-law, who would never reasonably anticipate being "`haled into court' in this country." See Klimavicius-Viloria, 144 F.3d at 1257.

Because there is an insufficient domestic nexus between the Defendants and the United States, the relevant statutes cannot be applied consistent with due process.

IV. CONCLUSION

For the foregoing reasons, the Indictment is DISMISSED.

IT IS SO ORDERED.