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					SNIDER                                                                                              2/6/2010




            SORTING OUT THE MESS:
     INTERNATIONAL SMUGGLING SCHEMES,
      FOREIGN POLICY, AND A LITTLE THING
               CALLED JUSTICE
                                        Shannon L. Snider

        Cite as: Shannon L. Snider, Sorting Out the Mess: International
    Smuggling Schemes, Foreign Policy, and a Little Thing Called Justice,
                         9 GONZ. J. INT‘L L. 1 (2005),
                  available at http://www.across-borders.com.


I. INTRODUCTION ....................................................................................... 2
II. THE APPLICABLE LAWS .......................................................................... 4
     A. Congressional Intent – The Anti-Smuggling Statute ...................... 4
     B. Federal Prosecutors Find a Work-Around – The Mail and
         Wire Fraud Statutes ........................................................................ 6
     C. The Common Law Revenue Rule - Existence and
         Justifications ................................................................................... 7
III. CIRCUIT SPLITS: THE CURRENT STATE OF THE COMMON LAW
     REVENUE RULE ..................................................................................... 11
     A. First Circuit: United States v. Boots ............................................. 12
     B. Second Circuit: United States v. Trapilo ...................................... 15
VI. UNITED STATES V. PASQUANTINO II ..................................................... 17
     A. Facts of the Case and Case History............................................... 17
     B. The Fourth Circuit Court‘s Ruling ................................................ 19
V. ANALYSIS OF THE IMPLICATED ISSUES ................................................. 24
     A. Acting Against Clear Congressional Intent .................................. 25
     B. Is a Failure to Disclose Smuggled Goods Actually ―Fraud‖? ....... 26
     C. Determining if Lost Tax Revenue is ―Property‖ ........................... 27
         1. Determining Congressional Intent, Revisited: Did
              Congress Mean for Unassessed Tax Revenue to



 Shannon L. Snider is a member of the Class of 2006 at Pepperdine University
School of Law.

                                                     1
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2                           Gonzaga Journal of International Law                                  [Vol. 9:1


            Constitute ―Property‖ Under the Mail and Wire Fraud
            Statutes? ................................................................................. 28
        2. The End of the Road: Does the Common Law Revenue
            Rule Bar the Factual Determination that Defendants
            Defrauded Canada of ―Property‖? ......................................... 32
     D. A Secondary Consideration: Racketeer Influenced and
        Corrupt Organizations Act ............................................................ 36
VI. THE SUPREME COURT DECIDES ............................................................ 37
     A. The Majority Opinion ................................................................... 38
     B. Four Justices Dissent .................................................................... 43
VII. CONCLUSION ......................................................................................... 46

                                         I. INTRODUCTION

     From the early days of prohibition1 up through modern day, as long as
there has been a demand, there has been a supply. From the back-house
speakeasy of the 1920s, to the large organized crime rings of the 1980s, to
today‘s epidemic of medium-sized operations utilizing the proximity of
Indian reservations to the Canadian border,2 smuggling operations have long
been a problem plaguing the United States and foreign nations.3 The
legislative and executive branches have struggled to construct a solution to
this re-occurring problem. Yet, in the process of legislative activism and
statutory interpretation, a muddled mess found its way to the Supreme Court
for review in the case of Pasquantino v. United States.4
     To combat smuggling operations that affect both the United States and
foreign entities, Congress enacted the Anti-Smuggling Statute.5 In doing so,
Congress expressly included a reciprocity clause, stating that prosecution of
individuals who smuggle goods into another country will not occur unless
that country has a reciprocal law prosecuting the same crimes committed in
the United States.6 At the time of this article, no nation has enacted such a


    1.     See U.S. CONST, amend. XVIII, § 1 (repealed 1933). In response to the needs of
the First World War, the United States Congress prohibited the sale, manufacture and
importation of all intoxicating liquors. See 19 CONST. COMMENTARY 297, 302-03 (2002).
President Franklin D. Roosevelt initiated the repeal of this law as part of his New Deal
Program. The Eighteenth Amendment was effectively repealed by the Twenty-First
Amendment. See 19 CONST. COMMENTARY at 303. See also U.S. CONST. amend. XXI.
    2.     See, e.g., United States v. Boots, 80 F.3d 580, 582 (1st Cir. 1996); United States v.
Trapilo, 130 F.3d 547, 549 (2d Cir. 1997); United States v. Pasquantino II, 336 F.3d 321, 325
(4th Cir. 2003), cert. granted 541 U.S. 972 (2004).
    3.     See H.R. REP. NO. 74-868, at 1-5 (1935).
    4.     Pasquantino v. Unites States, -- U.S. --, 125 S. Ct. 1766 (2005).
    5.     18 U.S.C. § 546 (2000). See also H.R. REP. NO. 74-868, at 1-5 (1935). The Anti-
Smuggling Statute criminalizes the activity of smuggling goods into a foreign country from
the United States, but only if the targeted country has a reciprocal law.
    6.     See 18 U.S.C. § 546 (2000).
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Fall 2005]                         Sorting Out the Mess                                        3

reciprocal law.7 Therefore, federal prosecutors have found a ―work-around‖
in the Mail and Wire Fraud Statutes.8 In such cases, as long as there is some
use of U.S. mail or wire systems across interstate borders in furtherance of
the smuggling scheme, federal prosecutions are sought under these statutes.9
     Charging export smugglers under the Mail and Wire Fraud Statutes
may be in conflict with the common law revenue rule.10 As its name
indicates, the common law revenue rule is a historical common law rule that
states one country will not enforce or recognize the revenue laws of another
country.11 Because the ―property‖ defrauded by export smugglers is a
foreign country‘s customs and tax revenue, defendants argue that they
cannot be prosecuted because to do so would amount to recognition and
enforcement of the revenue laws of another country.12 The Supreme Court
granted certiorari to the case of Pasquantino II to determine if this revenue
rule prohibits export smuggling convictions under the Mail and Wire Fraud
Statutes.13
     The issues that export smuggling schemes present are three-fold:
     By utilizing the Mail and Wire Fraud Statutes to prosecute export
smuggling crimes, federal prosecutors are acting against clear congressional
intent and thus undermining the foreign policy Congress set when enacting
the Anti-Smuggling Statute.
     The second issue pertains to the intended purpose of the Mail and Wire
Fraud Statutes; regardless of the revenue rule implication, does the term
―fraud‖ in the Mail and Wire Fraud Statutes include the act of smuggling?

    7.     Christopher D. Man, Revenue Rule to Get Spotlight, 26 NAT‘L L.J., S1 (July 19,
2004).
    8.     See generally 18 U.S.C. §§ 1341, 1343 (2000). The Mail and Wire Fraud Statutes
prohibit the use of United States mail or wire communication systems in furtherance of
committing a fraud. The elements for prosecution under the Mail Fraud State are ―(1) having
devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts),
and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or
specified fraudulent acts).‖ Carter v. United States, 530 U.S. 255, 261 (2000). It is unclear
why federal prosecutors seek convictions at all. Where a person smuggles goods from the
United States into a foreign country, such individuals often face criminal charges in the
targeted country.
    9.     See, e.g., United States v. Boots, 80 F.3d 580, 584 (1st Cir. 1996); United States v.
Trapilo, 130 F.3d 547, 553 (2d Cir. 1997); United States v. Pasquantino I, 305 F.3d 291, 293-
94 (4th Cir, 2002).
   10.     See generally Holman v. Johnson, 98 Eng. Rep. 1120 (K.B. 1775); RESTATEMENT
(THIRD) OF FOREIGN RELATIONS § 483 (1987).
   11.     Note that there is some discourse regarding the correct formulation of the common
law revenue rule. Historical case law states this rule with critical differences: Whether this
rule is mandatory or discretionary. See discussion infra, Part IV, B.
   12.     See, e.g., Boots, 80 F.3d at 584; Trapilo, 130 F.3d at 551; Pasquantino I, 305 F.3d
296-97.
   13.     Certiorari was granted in 124 S. Ct. 1875 (2004). On November 9, 2004, the Court
heard oral arguments for petitioner and respondent. The Supreme Court issued its written
opinion on April 9, 2005. United States v. Pasquantino II, -- U.S. --, 125 S. Ct. 1766 (2005).
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4                        Gonzaga Journal of International Law                           [Vol. 9:1


      Finally, the paramount issue that brought this case before the Court was
determining whether unassessed tax revenue owed to a foreign sovereign
constitutes ―property‖ for purposes of the Mail and Wire Fraud convictions.
It is here that the revenue rule is implicated, potentially barring any U.S.
court from engaging in the analysis of this question.
      This article will investigate the history, background, and purpose of the
implicated laws, as well as discuss the various states of the law in circuits
that have addressed this issue. Additionally, this article will methodically
address each issue as it logically arises rather than prematurely address the
issue of the revenue rule.14 The article will then analyze the Supreme
Court‘s recent decision in Pasquantino v. United States. Finally, the article
will summarize the information and arguments presented herein.

                               II. THE APPLICABLE LAWS

     Several laws are implicated in the prosecution of international export
smuggling under the Mail and Wire Fraud Statutes. The proper application
of these laws is at the heart of this debated issue. These laws include: the
Anti-Smuggling Statute,15 the Mail and Wire Fraud Statutes,16 and
apparently most importantly, the common law revenue rule.17 The crime of
export smuggling is specifically addressed by the Anti-Smuggling Statute,
yet federal prosecutors charge defendants under the Mail and Wire Fraud
Statutes, because they are unable to obtain convictions under the Anti-
Smuggling Statute.18 Facing such charges, defendants argue that they
cannot be prosecuted under these statutes because of the common law
revenue rule.19
             A.    Congressional Intent - The Anti-Smuggling Statute
   In 1998, Congress attempted to tackle the problem of international
smuggling by enacting the Anti-Smuggling Statute, which made the



   14.      Although few courts that have addressed the issues discussed herein, where they
have, the courts have repeatedly prematurely addressed the issue of the revenue rule. See
Boots, 80 F.3d at 584; Trapilo, 130 F.3d at 551. There are several steps in the analysis of
export smuggling cases that precede the issue of the revenue rule. This article will address
each issue, including those beyond the revenue rule, as it arises in a proper analysis of this
case. Additionally, this article takes a novel approach to the analytical order of addressing the
issues of export smuggling and mail and wire fraud convictions. It is the author‘s contention
that this approach yields a proper analysis of the implicated issues.
   15.      18 U.S.C. § 546 (2000).
   16.      18 U.S.C. §§ 1341, 1343 (2000).
   17.      See discussion infra, Part II, C.
   18.      See, e.g., Boots, 80 F.3d at 584; Trapilo, 130 F.3d at 553; Pasquantino I, 305 F.3d
at 293-94.
   19.      See discussion supra, Part I.
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Fall 2005]                          Sorting Out the Mess                                        5

smuggling of goods from the United States into foreign territories illegal.20
The statute states that any person who smuggles ―merchandise into the
territory of any foreign government in violation of‖21 that foreign
government‘s laws ―shall be fined under this title or imprisoned not more
than two years, or both.‖22 When it enacted this law, Congress clearly
imposed a reciprocity clause; the statute would only be enforced ―if under
the laws of the foreign government any penalty or forfeiture is provided for
violation of the laws of the United States respecting the customs
revenue[.]‖23 By nature of the reciprocity clause, Congress intended to
prosecute acts of export smuggling only when the targeted country was
committed to prosecuting smuggling into the United States.24 As of today,
no foreign government has enacted such a reciprocal statute.25 Since no
foreign government maintains a law that makes smuggling into the United
States illegal, it follows that the Anti-Smuggling Statute cannot be
utilized.26
      One may wonder what the intent of Congress was when enacting a
statute that, at least at the time of enactment, was moot for lack of reciprocal
laws in foreign nations. In 1935, Congress passed the Anti-Smuggling Act
making it a crime to smuggle goods into the United States.27 Congress
intended to fight a two-front battle against smuggling. Therefore, Congress
enacted the 1948 Anti-Smuggling Statute, making it a crime to smuggle
legally obtained goods out of the United States into a foreign territory.28
This was intended to be an incentive for foreign governments to also make
smuggling goods into the United States a crime.29 As stated above though,
no foreign government has yet to take a bite of this apple by enacting a
reciprocal law.30


  20.      18 U.S.C. § 546 (2000).
  21.      Id.
  22.      Id.
  23.      Id.
  24.      See id.
  25.      Man, supra note 7. For a specific discussion of Canada‘s lack of reciprocal anti-
smuggling laws, see United States v. Miller, 26 F. Supp. 2d 415, 425-26 (N.D. N.Y. 1998).
   26.     See Man, supra note 7. As of the date of this article, there are no published
opinions of any prosecution under the Anti-Smuggling Statute, 18 U.S.C. § 546 (2000).
   27.     18 U.S.C. § 545 (1996).
   28.     18 U.S.C. § 546 (2000).
   29.     See H.R. REP. NO. 74-868, at 1-5 (1935). At the time Congress enacted this statute,
it was particularly concerned with an epidemic of foreign vessels hovering beyond the grasp
of United States customs-enforcement area. Such foreign vessels would take advantage of the
inability of U.S. authority to control every inch of the coast at all times, and illegally import
goods when literally, the ‗coast was clear‘. Although each of these vessels could be
prosecuted in the United States under § 545, the problem was the practical limitation of
policing the entire U.S. coast line. See id.
   30.     See Man supra, note 7.
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6                       Gonzaga Journal of International Law                         [Vol. 9:1


                 B.    Federal Prosecutors Find a Work-Around:
                        The Mail and Wire Fraud Statutes
     In 1872, in order to make it a federal crime to use the United States
mail system as a vessel to perpetrate or intend to perpetrate a fraudulent
scheme, Congress enacted the Mail Fraud Statute.31 Under this statute,
defendants found guilty of mail fraud may be fined or imprisoned up to
twenty years unless the scheme affects a financial institution, in which case
they may be fined up to one million dollars or imprisoned up to thirty
years.32
     To keep up with the evolution of technology, in 1952 Congress enacted
a nearly identical statute pertaining to the use of wire, radio and/or
television communications, commonly known as the Wire Fraud Statute.33
Similarly, the statute makes it a federal crime to use interstate wires, radio
and/or television signals in connection with a scheme to defraud.34 It is
worth noting though, that neither the Mail nor the Wire Fraud Statute
enumerates against whom exactly the illegal fraud must be perpetrated.35
Although the penalty clause of each statute states that schemes directed at
financial institutions will carry a greater penalty,36 the statute is ambiguous
regarding any other potential targets for such schemes.37 It is for this reason
that federal prosecutors are able to liberally use the Mail and Wire Fraud
Statutes to prosecute defendants who commit or intend to commit almost
any fraudulent scheme, as long as they at some point use the mail or pick up
the telephone.38
     In export smuggling cases, there is often an issue of whether the crime
qualifies as ―fraud‖ for purposes of mail and wire fraud convictions. ―It is a
well-established rule of construction that ‗[w]here Congress uses terms that
have accumulated settled meaning under...the common law, a court must
infer, unless the statute otherwise dictates, that Congress means to


    31.     See 18 U.S.C. § 1341 (2002).
    32.     Id.
    33.     See 18 U.S.C. § 1343 (2002).
    34.     Id.
    35.     See 18 U.S.C. §§ 1341, 1343 (2002).
    36.     See id.
    37.     See id.
    38.     See id. Of course, other activities using the mail and wire systems of the United
States may constitute ‗use‘ for purposes of mail or wire fraud convictions. See, e.g., United
States v. Green, 494 F.2d 820 (5th Cir. 1974) (applying the Mail Fraud Statute to scheme to
commit credit card fraud); United States v. Coyle, 943 F.2d 424 (4th Cir. 1991) (applying the
Mail Fraud Statute to an operation providing illegal cable descramblers); United States v.
Coachman, 727 F.2d 1293 (D.C. Cir. 1984) (applying the Mail Fraud Statute to a scheme
defrauding the United States government of property); United States v. Giovengo, 637 F.2d
941 (1980) (applying the Wire Fraud Statute to convict defendants of fraudulently obtaining
air line tickets from their employer air line company).
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Fall 2005]                         Sorting Out the Mess                                        7

incorporate the established meaning of these terms.‘‖39 At the time of the
enactment of both the Mail and Wire Fraud Statutes, the well-established
common law meaning of fraud required a misrepresentation or concealment
of a material fact.40 In application to the crime of smuggling, ―the essence
of the crime is concealment and fraud.‖41 According to the Restatement
(Second) of Torts, Section 527, where a representation is made that has two
meanings, one of which the maker knows to be false, there is fraudulent
misrepresentation.42 Using the Mail and Wire Fraud Statutes, coupled with
the common law meaning of ―fraud‖ as described in the Restatement,
federal prosecutors seek to prosecute export smuggling.43

         C. The Common Law Revenue Rule: Existence and Justifications
     The common law revenue rule resonates back to English common
law,44 and provides that no U.S. court will recognize, apply, or rule upon the
validity of any revenue law of a foreign government.45 The original purpose
of the revenue rule was to protect lucrative British trade from oppressive
foreign taxes and customs and encourage British commerce.46 Regardless
of its original intent, American courts accepted and implemented the rule,



   39.     Neder v. United States, 527 U.S. 1, 22-23 (1999) (quoting Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 322 (quoting Community for Creative Non-Violence v. Reid,
490 U.S. 730, 739)). In Neder, the Court was specifically addressing the issue of whether the
common law meaning of ―fraud‖ for purposes of mail and wire fraud convictions required a
material misrepresentation or concealment. Insofar as applying the established common law
meaning of ―fraud‖ at the time of enactment of the statutes, the Congress meant for the crime
to incorporate the material element of the common law rule. Id. Although, the Court did note
that not all the elements of common law fraud are required under the Mail and Wire Fraud
Statues. The clear language of the statutes requires no reliance upon the material
misrepresentation or concealment, nor any proof of damages. Id. at 25.
   40.     See id. at 23.
   41.     United States v. One Hudson Coach, 57 F.2d 539, 540-41 (W.D.N.Y. 1932). See
also United States v. Trapilo, 130 F.3d 547, 550 (2d Cir. 1997) (determining that smuggling
constituted fraud because it is fundamentally dishonest).
   42.     RESTATEMENT (SECOND) OF TORTS § 527 (1977).
   43.     See, e.g., United States v. Boots, 80 F.3d 580, 584 (1st Cir. 1996); Trapilo, 130
F.3d at 553; United States v. Pasquantino I, 305 F.3d 291, 293-94 (4th Cir. 2003).
   44.     See, Holman v. Johnson, 98 Eng. Rep. 1120 (K.B. 1775).
   45.     RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 483 (1987) (―Courts in the
United States are not required to recognize or to enforce judgments for the collections of
taxes, fines, or penalties rendered by the court of other states.‖).
   46.     See Boucher v. Lawson, 95 Eng. Rep. 53 (K.B. 1734). In Boucher, Portuguese
gold was illegally exported into England, and although this act was ultimately criminalized
under an unrelated English law, Lord Hardwicke stated that ―if it should be laid down, that
because goods are prohibited to be exported by the laws of any foreign country from whence
they are brought . . . it would cut off all benefit of such trade from this kingdom, which would
be of very bad consequence to the principal and most beneficial branches of our trade‖);
Regazzoni v. K.C. Sethia, 1958 A.C. 301 (H.L. 1944).
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8                       Gonzaga Journal of International Law                          [Vol. 9:1


often referring to it as the rule of private international law.47 One of the
primary justifications for adoption of this rule in the United States is that
―[o]ur courts customarily refuse to enforce the revenue and penal laws of a
foreign state, since no country has an obligation to further the governmental
interests of a foreign sovereign.‖48 In their interpretation of the revenue
rule, the authors of the Restatement (Third) of Foreign Relations find that
non-recognition of foreign revenue laws is discretionary, not mandatory;49
however, some U.S. courts interpret the common law revenue rule to be a
mandatory rule imposed upon all U.S. courts.50 In 2004, the Supreme Court
granted certiorari to Pasquantino II in order to determine the scope and
proper application of the common law revenue rule, particularly in cases
where recognition of another country‘s revenue laws is necessary to
determine if a U.S. defendant defrauded that country of ―property‖.51
     There are three primary justifications that proponents of the revenue
rule typically argue. The first argument leans heavily on the issue of U.S.
foreign policy, and argues that the revenue rule is necessary to maintain
respect for other countries‘ laws by not passing judgment upon them.52
While the original purpose of the revenue rule was to protect British trade,53
in 1929, Judge Learned Hand restated the purpose of the rule as one of
foreign policy:




   47.     See, Hilton v. Guyot, 159 U.S. 113 (1895) (introducing the subject of the law of
nations, where ―the rights of persons within the territory and dominion of one nation, by
reason of acts, private or public, done within the dominions of another nation‖ are infringed
upon).
   48.     Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 448 (1964).
   49.     RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 483 n.2. The authors of the
Restatement recognize the need for the rule‘s rationale in the criminal context; however, they
argue that ―[i]n an age when virtually all states impose and collect taxes and when
instantaneous transfer of assets can be easily arranged, the raionable for not recognizing or
enforcing tax judgments is largely obsolete.‖
   50.     See United States v. Boots, 80 F.3d 580, 587-89 (holding that the common law
revenue rule barred defendants‘ prosecution for smuggling tobacco products into Canada).
The Boots court‘s interpretation of the revenue rule illustrates the error made in Restatement
(Third) of Foreign Relations. There is no clear understanding whether the revenue rule is
mandatory or discretionary. Both interpretations have been applied in federal courts.
Compare United States v. Pasquantino II, 336 F.3d 321, 327 (4th Cir. 2003), cert. granted 541
U.S. 972 (2004); Boots, 80 F.3d at 586; Attorney General of Canada v. R.J. Reynolds
Tobacco Holdings, Inc., 268 F.3d 103, 110-11 (2d Cir. 2001); Moore v. Mitchell, 30 F.2d 600,
604 (2d Cir. 1929) (Hand, J. concurring).
   51.     Pasquantino v. United States, 541 U.S. 972 (2004). The Court issued its opinion in
April 2005. Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766 (2005).
   52.     See Moore, 30 F.2d 600, 604 (Hand, J., concurring).
   53.     See R.J. Reynolds Tobacco Holdings, 268 F.3d at 110-11 (stating that ―[t]he rule
has its origin in eighteenth-century English court decisions seeking to protect British trade
from the oppressiveness of foreign customs‖).
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Fall 2005]                          Sorting Out the Mess                                       9

        To pass upon the provisions for the public order of another state is,
        or at any rate should be, beyond the powers of a court; it involves
        the relations between the states themselves, with which courts are
        incompetent to deal, and which are [entrusted] to other authorities.
        It may commit the domestic state to a position which would
        seriously embarrass its neighbor. Revenue laws fall within the
        same reasoning; they affect a state in matters as vital to its
        existence as its criminal laws. No court ought to undertake an
        inquiry which it cannot prosecute without determining whether
        those laws are consonant with its own notions of what is proper.54

     The concern is that American courts would be in a position to pass
judgment on foreign laws that may conflict with American ideals.55
     The second argument for upholding the revenue rule is a separation of
powers argument. Proponents of the revenue rule argue that where a court
makes a judgment on the application of a foreign revenue law, such a ruling
interferes with the executive and legislative branches‘ right to make and set
foreign policy.56 Which branch of government is empowered to set foreign
policy has been hotly debated?57 The Constitution itself does not expound
upon the proper source of foreign policy, but it does list the powers the
President and Congress have which affect foreign policy.58 While Congress
has the power ―[t]o regulate Commerce with foreign Nations,‖59 the
President has the power ―to appoint...and remove ambassadors,...recognize
foreign states and governments, establish diplomatic relations with them,
communicate official positions of the United States..., conduct negotiations,
conclude international agreements, dispatch agents on international
missions..., and protect the secrecy of diplomatic and intelligence



  54.        Moore, 30 F.3d 600, 604 (Hand, J., concurring).
  55.        See R.J. Reynolds Tobacco Holdings, 268 F.3d at 113.
    [C]onsider, for example, other possibilities involving a foreign sovereign's taxes. How
    would we respond if a foreign sovereign asked us to help enforce a tax designed to
    render it very expensive to sell United States newspapers in that nation? Or to make
    the inclusion of United States-made content in machinery built in that foreign country
    prohibitively expensive? Suppose it were a tax that had been raised to deter the sale of
    United States pharmaceuticals in that country? Or if a foreign nation imposed an
    immigration tax on members of a particular religious group or racial minority?
   56.     See Brief of Amici Curiae National Association of Criminal Defense Lawyers and
the National Association of Manufacturers 25-29, Pasquantino v. United States, -- U.S. --, 125
S. Ct. 1766 (2005) (03-725).
   57.     See PHILLIP R. TRIMBLE, INTERNATIONAL LAW: UNITED STATES FOREIGN
RELATIONS LAW 2-3 (2002) (discussing the powers and history of the powers of the executive
and legislative branches to make and set foreign policy).
   58.     See TRIMBLE, supra note 57, at 47.
   59.     U.S. CONST. art. I, § 8, cl. 3.
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10                       Gonzaga Journal of International Law                          [Vol. 9:1


documents.‖60 Despite the uncertainty of foreign policy power among the
executive and legislative branches, it is clear that the judicial branch has no
power to make foreign policy.61 Proponents of the revenue rule argue that
should the rule not be applied to export smuggling cases, courts would
affect foreign policy by passing judgment on the validity of implicated
foreign laws.62
     A third justification for the revenue rule is the argument that U.S.
courts are not required to, nor should they seek to, interpret and apply a
foreign body of law of which they know nothing about.63 Where the
conviction or suit in the United States is contingent upon a finding of fact
that the defendant violated the laws of a particular foreign nation, the finder
of fact would have to determine whether those foreign laws have been
violated, assuming that the defendant does not admit to violation of the
foreign law.64 In other federal criminal cases, where the court is compelled
to try the issue of a violation of foreign law, 65 the Government must obtain
foreign experts to testify that the foreign law was violated, a process that is
ripe with difficulties.66 Because of these inherent difficulties, coupled with

   60.     See TRIMBLE, supra note 57, at 47. Additionally, proponents of the revenue rule
argue that Congress acted with clear intent to affect foreign policy with its silence when
passing the Mail and Wire Fraud Statutes, relying on the on the canon that absent clear
congressional language to the contrary, a law must be interpreted in light of all well-
established common law rules. See, e.g., Amici Curiae Brief in Support of Petitioners, supra
note 56, at 4-8; United States v. Texas, 507 U.S. 529, 534 (1993) (stating that ―a presumption
favoring the retention of long-established and familiar principals, except when a statutory
purpose to the contrary is evident‖ must be applied in statutory interpretation). Therefore,
because the revenue rule was clearly established at the time enactment of the statutes, and
because Congress did not include language that exempted the Mail and Wire Fraud Statutes
from being subject to the rule, the common law revenue rule acts as a bar for prosecutions
where the ―property‖ that was fraudulently takes was foreign tax revenue. See Amici Curiae
Brief in Support of Petitioners, supra note 56, at 4-10.
   61.     See generally, U.S. CONST. art. III.
   62.     See, e.g., Bradley Wilson, Subtle Indiscretions? International Smuggling, Federal
Criminal Law and the Revenue Rule, 89 CORNELL L. REV. 231, 251 (2003); Amici Curiae
Brief in Support of Petitioners, supra note 56, at 15-21.
   63.     See Amici Curiae Brief in Support of Petitioners, supra note 56, at 15-21.
   64.     See WILSON, supra note 62, at 239.
   65.     There are a number of scenarios where a United States federal court is forced to
determine if conduct violated a foreign law. Foreign activities such as hunting, exportation of
goods and wildlife, and criminal laws may be the basis for a United States conviction. See
infra note 66. In fact, in some cases, parties harmed by a violation of foreign law may seek
redress in the United States. See, e.g., Escobio v. American Int‘l Group, Inc., 262 F.3d 1207
(11th Cir. 2001) (plaintiff sought redress for insurance policy defendant sold in violation of
Chilean law).
   66.     FED. R. CRIM. P. 26.1 requires that ―[a] party intending to raise an issue of foreign
law must provide the court and all parties with reasonable written notice. Issues of foreign
law are questions of law[,]‖ and as such are the burden of proof of the party invoking the
foreign law. See Amici Curiae Brief in Support of Petitioners, supra note 56, at 15. Violation
of a foreign law is a predicate to the determination that the Mail and Wire Fraud Statutes have
been violated by exportation smuggling. But to prove that a foreign law has been violated,
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Fall 2005]                         Sorting Out the Mess                                     11

the burdens placed on the U.S. courts, proponents of the revenue rule argue
that the rule should remain as a bar for export smuggling prosecutions under
the Mail and Wire Fraud Statutes.67

                   III. CIRCUIT SPLITS: THE CURRENT STATE OF
                        THE COMMON LAW REVENUE RULE

      Like many difficult areas of law, the application of the common law
revenue rule and the Mail and Wire Fraud Statutes is fractured among the
circuit courts. Only the First, Second, and Fourth circuits have addressed
this application.68 The likely reason that only three circuits have addressed
this issue is simply because of the geographic limitations inherent in the fact
scenarios. In the three cases discussed in detail below, the defendants were
all operating their schemes in the northeast region of the United States,
advantageously using their proximity to the Canadian border to carry out
their smuggling operations.69 While the defendants in the three cases
discussed below acted similarly, the three circuits have not.70 The varying
methods the circuits have used to address export smuggling prosecutions
under the Mail and Wire Fraud Statutes is exhibited in the opinions of the
courts.




prosecutors have habitually relied on expert testimony simply stating that ―the law was
violated‖. Often these experts are not legal authority, and/or they posses serious conflicts of
interest. The fact finder must either believe or not believe the expert‘s opinion. As stated in
the Petitioner‘s amicus brief, there are several examples of such. In the case of United States
v. McNab, defendants were prosecuted under the Lacey Act, 16 U.S.C. § 3372(a)(2)(A), a law
that criminalized the importation of wildlife that has been ―taken, possessed, transported, or
sold in violation of any . . . foreign law.‖ 324 F.3d 1266 (11th Cir. 2003); 16 U.S.C. §
3372(a)(2)(A) (2003). Although the Government obtained and presented more than five
testifying foreign experts, as well as obtained the advice and counsel of multiple leading
authorities on the foreign law in question, the defendants successfully overturned the
convictions after a showing of invalidity of the foreign law in the origin country.
Additionally, in the case of United States v. Schultz, 333 F.3d 393 (2d Cir. 2003), defendants
were convicted under the National Stolen Property Act, 18 U.S.C.S. § 371, which
criminalized the interstate transportation of stolen property. 18 U.S.C. § 371 (1994).
Defendants imported Egyptian antiquities in violation of and Egyptian law making all
Egyptian antiquities found in the country after 1983 as belonging to the government of Egypt.
See Schultz, 333 F.3d at 396. The prosecution relied on the testimony of two experts, the
Secretary General for the Egyptian Ministry of Culture, and a detective of the Egyptian police.
Id. at 400-02.
   67.     See WILSON, supra note 62, at 251; Amici Curiae Brief in Support of Petitioners,
supra note 56, at 15-21.
   68.     See, e.g., United States v. Boots, 80 F.3d 580, 584 1st Cir. 1996); United States v.
Trapilo, 130 F.3d 547, 553 (2d Cir. 1997); United States v. Pasquantino I, 305 F.3d 291, 293-
94 (4th Cir. 2003).
   69.     See id.
   70.     See id.
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12                       Gonzaga Journal of International Law                      [Vol. 9:1


                    A.    First Circuit: United States v. Boots71
     In March 1996, the First Circuit Court of Appeals decided the case of
United States v. Boots, setting the First Circuit‘s precedent where the Mail
and Wire Fraud Statutes and the common law revenue rule conflict.72 In
Boots, defendants engaged in a scheme to transport legally obtained tobacco
into Canada ―without paying the taxes and excise duties levied upon the
importation of tobacco by Canadian laws.‖73 Defendants‘ scheme came to
the attention of the Federal Bureau of Investigation (―FBI‖) when informant
Frederick Moore, chief of police, was approached by defendants to aid in
the scheme.74 In furtherance of the crime, defendants obtained large
amounts of tobacco products on Indian reservations located in northern New
York.75 The tobacco was then transported into Canada via border
crosspoints from the reservation, passing across the St. Lawrence River in a
boat.76 Defendants would meet their Canadian contacts, who paid for the
illegally imported tobacco.77 Over the course of the scheme, approximately
1,850 kilograms of tobacco was smuggled into Canada by defendants.78
According to a witness for the prosecution, $106.47 was due to Canada per
kilogram of tobacco as excise duties,79 totaling nearly two hundred thousand
dollars in unpaid Canadian taxes. As there were several intrastate telephone
conversations made in furtherance of the crimes, prosecutors were able to
bring actions against defendants under the Wire Fraud Statute.80
     As part of defendants‘ defense, they argued that their intent was not to
defraud Canada out of its due taxes, but rather that they carried out their
activities with ―a good faith belief in an aboriginal right to trade tobacco
freely with Canada.‖81 In its analysis of the district court‘s finding, the First
Circuit addressed two issues that pertained to the wire fraud convictions.82
First, the court addressed whether defendants‘ act of transporting tobacco
into Canada could be considered ―fraud,‖ an element necessary for



  71.    Boots, 80 F.3d 580.
  72.    Id. at 588.
  73.    Id. at 583.
  74.    Id.
  75.    United States v. Boots, 80 F.3d 580, 583 (1st Cir. 1996). Defendants and informant
Moore were Native American Indians, and Moore was the chief of police of the
Passamoquoddy Tribe at Pleasant Point. The scheme was to transport tobacco from the
Native American reservation Akwasasne into New Brunswick, Canada. Id.
  76.    Id.
  77.    Id. at 584.
  78.    Id.
  79.    Id.
  80.    United States v. Boots, 80 F.3d 580, 584 (1st Cir. 1996).
  81.    Id.
  82.    See id. at 584-90.
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Fall 2005]                          Sorting Out the Mess                                       13

conviction under the statute,83 in the absence of any affirmative
misrepresentation.84 Second, the court addressed the issue of whether
unpaid Canadian tax revenue constituted ―property,‖ as intended under the
Wire Fraud Statute.85
     As support for its proposition that an act ―not to declare the tobacco
was a sufficient form of deceit to meet the requirements of § 1343[,]‖86 the
prosecution cited several cases where similar failures to declare were
sufficient for a finding of fraud;87 however, the court distinguished the
prosecution‘s supporting citations from the case at hand, noting that ―the
object of the scheme...was exclusively to defraud a foreign government,
rather than our own, of customs and tax revenue imposed under foreign
law.‖88 In one paragraph of the opinion, the court simply reasoned that
because the intent to defraud was directed at a foreign country, ―this added
factor pushe[d] defendants‘ scheme beyond the parameters of the frauds
cognizable under § 1343 [the Wire Fraud Statute].‖89
     Regarding the second issue, the prosecution again relied on case law to
support its argument that unpaid tax revenues constituted ―property‖ for
purposes of prosecution under the Wire Fraud Statute.90 The court noted
that all of the Government‘s citations failed to deal specifically with the
instance where the fraud ―involved a scheme to deprive a foreign
government of its own taxes and similar exactions.‖91 Thus the court
rejected the Government‘s argument that ―[f]ederal wire prosecutions have
been based on frauds against private foreign businesses and individuals[,]‖92
and distinguished that ―schemes aimed at depriving a foreign government of
duties and taxes are not the same as domestic tax frauds, nor are they even
the same as private commercial frauds aimed at foreign business entities or

  83.      18 U.S.C. § 1343 (2003).
  84.      Boots, 80 F.3d at 585-88.
  85.      Id. at 585.
  86.      Id. at 585-86.
  87.      Id. at 586 (citing United States v. Dale, 991 F.2d 492, 496 (4th Cir. 1975) (finding
that selling cigarettes to another state without registering them with tax officials of that state
constituted fraud) and McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791
(1st Cir. 1990) (stating that ―the scope of fraud under these [federal fraud] statutes is broader
than common law fraud, and . . . no misrepresentation of fact is required‖)).
   88.     Id. at 586.
   89.     United States v. Boots, 80 F.3d 580, 586 (1st Cir. 1996).
   90.     Id. (citing United States v. Dale, 991 F.2d 819, 849 (D.C. Cir. 1993) (holding that
defendants‘ tax evasion constituted ―property‖ for purposes of wire fraud conviction), United
States v. Helmsley, 941 F.2d 71, 93-95 (2d Cir. 1991) (holding that tax fraud constituted
―property‖ for purposes of mail fraud conviction), and United States v. Bucey, 876 F.2d 1297,
1309-10 (7th Cir. 1989) (holding that money laundering constituted deprivation of ―property‖
for purposes of mail fraud conviction)).
   91.     Id. at 586.
   92.     Id. at 587 (citing United States v. Lewis, 67 F.3d 225 (9th Cir. 1995) and United
States v. Cauwenberghe, 827 F.2d 424 (9th Cir. 1987)).
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14                      Gonzaga Journal of International Law                         [Vol. 9:1


individuals.‖93 The court further stated that because a foreign sovereign‘s
revenue laws may conflict with the ideals of the United States citizenry, it
has long been held that no such laws would be enforced in United States
courts.94 In its analysis, the court alluded to the supporting arguments of the
revenue rule: that courts are not competent to, nor should they be burdened
with interpretation of foreign tax laws, and to do so interjects the judicial
branch into the arena of foreign policy, an area reserved for the legislative
and executive branches.95 The court stated:

        The rationale of the revenue rule has been said to be that revenue laws
        are positive rather than moral law; they directly affect the public order
        of another country and hence should not be subject to judicial scrutiny
        by American courts; and for our courts effectively to pass on such laws
        raises issues of foreign relations which are assigned to and better
        handled by the legislative and executive branches of government.96

      Finally, the court stated that in the case of export smuggling, Congress
manifested its intent in the Anti-Smuggling Statute. Specifically, Congress
meant to affect foreign policy by prosecuting such crimes only where the
foreign country possess a reciprocal arrangement to do the same.97 To allow
prosecutions for the same crimes the Anti-Smuggling Statute is intended to
curtail would undermine the clear intent of Congress.98 Although the court
addressed and argued on behalf of upholding the revenue rule‘s application,
it ultimately rested its reversal of defendants‘ wire fraud convictions on the
rule stating that ―foreign tax and customs frauds... are not schemes to
defraud within the meaning of § 1343[.]‖99 Boots set the First Circuit
precedent that export smuggling schemes could not be prosecuted under the
Mail and Wire Fraud Statutes, not because such prosecutions were barred by
the revenue rule, but because such schemes did not constitute ―fraud‖ under
the meaning of the statutes.100




  93.     Id. at 587.
  94.     United States v. Boots, 80 F.3d 580, 587 (1st Cir. 1996). (citing to the common law
revenue rule, Holman v. Johnson, 98 Eng. Rep. 1120 (K.B. 1775)).
   95.    Id. at 587-88.
   96.    Id. at 587.
   97.    Id. at 588.
   98.    Id.
   99.    United States v. Boots, 80 F.3d 580, 588-89 (1st Cir. 1996).
  100.    See id.
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Fall 2005]                       Sorting Out the Mess                                 15

                 B. Second Circuit: United States v. Trapilo101
     In 1997, the Second Circuit Court of Appeals, in United States v.
Trapilo, held that the revenue rule did not bar prosecutions under the Mail
and Wire Fraud Statutes.102 In Trapilo, the defendants engaged in a scheme
in upstate New York on the St. Regis Mohawk Indian Reservation, which
extends into both United States and Canadian territory.103 Defendants‘
scheme included ordering large quantities of liquor, and making use of
interstate wires via phone calls, facsimiles, and wire transmissions.104 The
legally-obtained liquor was then transported into Canadian territory from
the United States via the St. Lawrence River.105 Other participants then
delivered the products to black marketers operating in Montreal and
Toronto.106 Criminal actions were brought against defendants under the
Wire Fraud Statute.107 Defendants moved to dismiss, arguing the reasoning
in Boots, that ―the government did not have the authority to prosecute wire
fraud aimed at defrauding a foreign government of tax or customs
revenue.‖108 The district court agreed with the reasoning in Boots, and
concluded that ―the common law ‗revenue rule‘ and other prudential
considerations precluded application of the federal Wire Fraud Statute in
alleged schemes to defraud foreign governments of tax revenue.‖109
Accordingly, the district court dismissed defendants‘ indictment.110
     On appeal, the Government argued that the court in Boots erred, and
that ―the Wire Fraud Statute condemns any scheme to defraud where
interstate or foreign telecommunications systems are used, and does not
require the court to determine the validity of Canadian tax law prior to
finding a violation of the statute.‖111 The Second Circuit agreed.112 The
court‘s analysis began with the application of statutory interpretation
principals, reasoning that the plain meaning of the statutory language must
be applied in absence of clear Congressional intent to the contrary.113



 101.     United States v. Trapilo, 130 F.3d 547 (2d Cir. 1997).
 102.     Id. at 553.
 103.     Id. at 549.
 104.     Id.
 105.     Id.
 106.     United States v. Trapilo, 130 F.3d 547, 549 (2d Cir. 1997).
 107.     Id.
 108.     Id.
 109.     Id. at 548-49.
 110.     Id. at 549.
 111.     United States v. Trapilo, 130 F.3d 547, 551 (2d Cir. 1997).
 112.     Id.
 113.     Id. ―[T]he intention of the legislature is to be collected from the works they
employ. Where there is no ambiguity in the words, there is no room for construction. The
case must be a strong one indeed, which would justify a Court in departing from the plain
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16                      Gonzaga Journal of International Law                          [Vol. 9:1


Applying this reasoning, the court stated that a plain reading of the Wire
Fraud Statute clearly prohibits any scheme intended to defraud.114 The court
further stated that the focus on the Mail and Wire Fraud Statutes is not on
the property that is defrauded, but rather on the intent to defraud.115 As
such, the Mail and Wire Fraud Statutes prohibit the scheme, rather than the
actual defrauding of property.116 To support its determination that the
scheme is the focus, the court further stated that Second Circuit precedent
has upheld convictions where the defendant intended to defraud the state of
New York of tax revenue, but ultimately failed to do so.117 The court stated,
―[t]he identity and location of the victim and the success of the scheme are
irrelevant.‖118
      In applying this reasoning to schemes where the intent is to evade
foreign taxation, the court reasoned that as long as the scheme involves the
misuse of wires in furtherance of the scheme, the conviction is valid under
the statute.119 ―The intent to defraud does not hinge on whether or not the
appellees were successful in violating Canadian revenue law, as ‗[s]ection
1341 punishes the scheme, not its success.‘‖120 In a footnote, the court
alluded that their reasoning was, at least partly, couched in conspiracy law
application and analysis, noting that their reasoning is ―consistent with the
law of conspiracy.‖121 For these reasons, Second Circuit Court of Appeals


meaning of words . . . in search of an intention which the words themselves did not
suggest[,]‘‖ Id. (quoting United States v. Wiltberger, 18 U.S. 76, 95-96 (1820)).
  114.     Id.
  115.     Id. The court made this determination by relying on the cases of Gregory v. United
States, 253 F.2d 104, 109 (5th Cir. 1958) and United States v. De Fiore, 720 F.2d 757, 761
(2d 1983). In Gregory, defendant used the mail systems to enter football game contests,
making it appear that his entry was mailed before the game when in fact it was mailed after.
Defendant argued his winnings were not property belonging to the victim, and thus his actions
fell outside of the Mail Fraud Statute‘s scope. See Gregory, 253 F.2d at 109. In De Fiore,
defendants smuggled cigarettes from North Carolina into New York. Defendants argued that
the Wire Fraud Statute was not meant to include schemes to defraud a state of tax revenue.
See De Fiore, 720 F.2d at 760-61.
  116.     United States v. Trapilo, 130 F.3d 547, 551 (2d Cir. 1997) (stating that ―[u]nder
both the Mail and Wire Fraud Statutes, ‗[t]he thing which is condemned is (1) the forming of
the scheme to defraud, however and is whatever form it may take, and (2) a use of [mail and
wire communications] in its furtherance. If that is satisfied, more is not required‘‖) (citing
Gregory v. United States, 253 F.2d at 109 (emphasis omitted)); accord United States v.
Eskow, 422 F.2d 1060, 1064 (2d Cir. 1970); United States v. Fromen, 265 F.2d 702, 705 (2d
Cir. 1959), cert. denied, 79 S. Ct. 1295 (1959).
  117.     Id. (citing United States v. Helmsley, 941 F.2d 71, 94 (2d Cir. 1991), where
defendant‘s conviction was obtained under the mail fraud statute, 15 U.S.C. § 1341).
  118.     Id. at 550.
  119.     Id. at 548-49.
  120.     Id. at 549.
  121.     United States v. Trapilo, 130 F.3d 547, 553 at n. 9 (2d Cir. 1997). The court cites
the rule that where conspiracy is alleged, ―legal impossibility affords a conspirator no
defense.‖ Id. (citing United States v. Feola, 420 U.S. 671, 693 (1975)).
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Fall 2005]                       Sorting Out the Mess                                  17

held that the common law revenue rule was improperly implicated in the
analysis of this case, and accordingly, defendants‘ indictments were
reinstated.122 With this case, the Second Circuit set the precedent that the
revenue rule was not implicated in export smuggling cases because the
determination of ―property‖ was an irrelevant part of the convictions.123

                    IV. UNITED STATES V. PASQUANTINO II:


                   A.    Facts of the Case and Case History124
     Defendant brothers David and Carl Pasquantino engaged in a
smuggling operation that began in 1996 and continued through May
2000.125 Defendants smuggled vast quantities of legally obtained liquor into
Canada to be sold on the black market, an operation envisioned after
Canada significantly increased its sin taxes on liquor[.]126 The intent of the
scheme was to circumvent the excise duties and tax revenues that would
otherwise be paid on legally-imported goods and reap the profits.127
     The defendants were residents of Niagara Falls, New York, where they
placed large orders for low-end liquor by telephone with various discount
liquor stores located in Maryland.128 A driver, usually not one of the
defendants, would rent a truck, pick up the liquor orders and transport them
back to New York for storage.129 Later, another driver would smuggle
smaller quantities of the liquor across the Canadian border in the trunk of a
car.130
     The United States Bureau of Alcohol, Tobacco and Firearms (―ATF‖)
became suspicious after discovering that eight discount liquor stores in
Maryland had purchased unusually large quantities of low-end liquor from
their wholesalers.131 With cooperation from several liquor store owners,
ATF agents were able to pursue an investigation which netted ―numerous
telephone, truck rental, and motel records, all which evinced the scheme.‖132
A joint investigation by ATF agents and the Royal Canadian Mounted

 122.     Id.
 123.     See id.
 124.     See United States v. Pasquantino I, 305 F.3d 291, 293-94 (4th Cir. 2003); United
States v. Pasquantino II, 336 F.3d 321, 325 (4th Cir. 2003), cert. granted, 541 U.S. 972
(2004).
  125.    See Pasquantino II, 336 F.3d at 324-25.
  126.    See id.
  127.    Id. at 325.
  128.    Id.
  129.    Id.
  130.    United States v. Pasquantino, 336 F.3d 321, 325 (4th Cir. 2003).
  131.    Id.
  132.    Id.
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18                      Gonzaga Journal of International Law                           [Vol. 9:1


Police led to surveillance of defendants and associates ―loading liquor in
Maryland and unloading it in Canada;‖ marked bottles of liquor were
subsequently found in Canada.133
     On April 13, 2000, the three defendants and four other individuals were
indicted on six counts of wire fraud and aiding and abetting wire fraud.134
Defendant petitioners moved to dismiss ―on the ground that the United
States did not have a justiciable interest in their putative smuggling scheme
against Canada, a foreign sovereign.‖135 The motion was denied.136
     Prior to the trial, the Government failed to give notice under Federal
Rule of Criminal Procedure 26.1 that it intended to prove violation of a
foreign law.137 Instead, during the Government‘s case in chief, Canadian
Customs Intelligence Officer Gina Jonah (―Officer Jonah‖) presented
testimony that a Canadian federal excise tax and general sales tax existed,
which approximated about one-hundred American dollars per case of liquor
imported from the United States into Canada.138 Officer Jonah‘s testimony
did not include her procedure for calculating such an amount, nor did her
testimony explain the Canadian excise tax laws.139 Defendants were
subsequently convicted and sentenced to fifty-seven months imprisonment
each, which included ―an enhancement based on the government‘s estimate
of ‗intended loss‘ to Canada and the province Ontario pursuant to U.S.S.G.
§ 2F1.1 (2000).‖140
     A Fourth Circuit Court of Appeals panel reversed the convictions in
September 2002, relying on the ―long-standing common law doctrine
providing that courts of one sovereign will not enforce final tax judgments
or unadjudicated tax claims of other sovereigns[.]‖141 In support of its
decision, the panel commended the decision of the First Circuit in United
States v. Boots, in which a conviction of wire fraud based on failure to pay
foreign taxes was barred by the revenue rule.142 The court further stated that
the Second Circuit issued a ―flawed‖ decision in the case of United States v.
Trapilo, where the court found that the revenue rule did not bar such a
conviction.143 The Fourth Circuit reheard the case en banc,144 and concluded


 133.     Id.
 134.     Brief for Petitioner-Appellant at 2, United States v. Pasquantino II, -- U.S. --, 125
S. Ct. 1766 (2005) (No. 03-725). See also 18 U.S.C. § 1343 (2000).
 135.     See Brief for Petitioner-Appellant, supra note 134, at 2-3.
 136.     Id. at 3.
 137.     Id.
 138.     See Pasquantino II, 336 F.3d at 326.
 139.     Brief for Petitioner-Appellant, supra note 134, at 2.
 140.     Id.
 141.     Id. at 3 (referring to the common law revenue rule). See also United States v.
Pasquantino, 305 F.3d 291, 295 (4th Cir. 2003).
 142.     Pasquantino I, 305 F.3d at 295-96.
 143.     Id. at 297.
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Fall 2005]                        Sorting Out the Mess                                   19

with a decision that overturned the panel‘s adjudication and reinstated
defendants‘ convictions.145 The Fourth Circuit refused to presume that
when Congress enacted the Wire Fraud Statute, it meant to never allow
convictions whereby such convictions required the recognition of a foreign
tax law.146 Without being able to make such a finding, the court stated that
it was bound by the ―plain language of the wire fraud statute[,]‖ and thus
defendants‘ convictions were supported.147

                       B. The Fourth Circuit Court’s Ruling
     In Pasquantino II, the case to which the United States Supreme Court
granted certiorari, the Fourth Circuit Court, sitting en banc, held that the
common law revenue rule does not bar convictions under the Mail and Wire
Fraud Statutes.148
     On appeal, the defendants argued that their convictions under the Wire
Fraud Statute should be vacated for violation of the revenue rule.149 The
court began its analysis of the application of the revenue rule by attempting
to ascertain the scope and history of the revenue rule.150 The court stated
that ―[u]nder relevant Supreme Court precedent, the only circumstance
under which we may hold that this conduct is beyond the reach of the wire
fraud statute is if, at the time Congress enacted the Wire Fraud Statute in
July 1952, well established common law provided that the courts of one
sovereign were prohibited from recognizing the existence of the revenue
laws of a foreign sovereign.‖151 The court further stated the various
articulations of the revenue rule.152 The court looked primarily at the
Restatement (Third) of Foreign Relations Law of the United States (1987),
articulating that the Restatement has often been relied upon by the courts in
determining the application of the revenue rule.153 Specifically, the
Restatement restates the revenue rule as ―Courts in the United States are not

  144.    United States v. Pasquantino, 336 F.3d 321, 322 (4th Cir. 2003), cert granted, 541
U.S. 972 (2004).
  145.    Id. at 338.
  146.    Id. at 330. See also Astoria Fed. Sav. & Loan v. Solimino, 501 U.S. 104, 108
(1991).
  147.    Pasquantino II, 336 F.3d at 330.
  148.    Id. at 331.
  149.    Id. at 324.
  150.    Id. at 326-27.
  151.    Id. at 326 (citing Astoria Fed. Savings & Loan Ass'n v. Solimino, 501 U.S. 104,
108 (1991)).
  152.    United States v. Pasquantino, 336 F.3d 321, 326-28 (4th Cir. 2003), cert. granted,
541 U.S. 972 (2004).
  153.    Id. at 327 (citing C & L Enters. Inc. v. Citizens Band Potawatomi Indian Tribe of
OK, 532 U.S. 411, 421 n. 3 (2001), Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796
(1993), United States v. Boots, 80 F.3d 580, 587 (1st Cir 1996), Palma v. Verdeyen, 676 F.2d
100, 106 n.5 (4th Cir. 1982).
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20                      Gonzaga Journal of International Law                         [Vol. 9:1


required to recognize or to enforce judgment for the collection of taxes,
fines, or other penalties rendered by the courts of other states.‖154 The court
also cited Attorney General of Canada v. R.J. Reynolds Tobacco Holdings,
Inc.,155 in support of this interpretation, quoting ―‗a longstanding common
law doctrine providing that courts of one sovereign will not enforce final tax
judgments or unadjudicated tax claims of other sovereigns.‘‖156 Finally, the
court cited Her Majesty the Queen ex rel. B.C. v. Gilbertson,157 stating that
this was the first federal case to invoke the revenue rule, a case which
―described the common law revenue rule as an exception to the general rule
in that judgments from a foreign country are recognized by the courts of this
country when the general principals of comity are satisfied.‖158
     Defendants argued in their brief to the Fourth Circuit that the revenue
rule‘s proper interpretation must be one of a mandatory rule, rather than a
discretionary rule as the Restatement would have it;159 however, the court
dismissed this argument as being unsupported by proper authority, as
defendant‘s support was taken from alleged dicta.160 The court determined
that the common law revenue rule, regardless of its application, is a broad,
permissive interpretation, allowing United States courts to choose when to
enforce foreign revenue laws.161 It is also important to note, as the dissent
does, that at some point in its reasoning, the Fourth Circuit narrowed its




  154.      RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 483 (emphasis added); see also
supra note 49 and accompanying text.
  155.      Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103
(2d Cir. 2001), cert. denied, 537 U.S. 1000 (2002). In Reynolds, Canada sought to recover
lost tax revenue in a civil RICO suit for taxes not paid on smuggled cigarettes. The Second
Circuit held that to allow a damage award for Canada‘s civil RICO suit was tantamount to
enforcing Canadian revenue laws, and was thus bared by the revenue rule. See discussion
infra, Part V, D.
  156.      Pasquantino II, 336 F.3d at 327.
  157.      Her Majesty the Queen ex. rel. B.C. v. Gilbertson, 597 F.2d 1161 (9th Cir. 1979).
In Her Majesty, British Columbia obtained a tax judgment against an Oregon couple for
failure to pay taxes on certain income received in their province. British Columbia sought to
recover the lost tax revenue in U.S. court, but the case was dismissed for failure to state a
claim for which relief could be granted because the revenue rule barred plaintiff‘s sought
recovery. Id.
  158.      Pasquantino II, 336 F.3d at 327.
  159.      Id. at 328. Defendants cite the early English case of Holman v. Johnson, quoting
Lord Mansfield as stating that ―no country ever takes notice of the revenue laws of another.‖
Holman v. Johnson, 98 Eng. Rep. 1120 (K.B. 1775). Defendants also cite the case Planche v.
Fletcher, 99 Eng. Rep. 164 (1779), in support.
  160.      Pasquantino II, 336 F.3d at 329. In both Homan and Planche, Lord Mansfield
states that no country shall recognize the tax laws of another. Both cases were decided on
other grounds, making Lord Mansfield‘s statements dicta. See Holman, 98 Eng. Rep. at 1121;
Planche, 99 Eng. Rep. at 165.
  161.      Pasquantino II, 336 F.3d at 329.
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interpretation of the scope of the revenue rule to the term ―enforcement‖ and
did not include the term ―recognition.‖162
     The Fourth Circuit additionally addressed whether the common law
revenue rule is applicable to the Mail and Wire Fraud Statutes, even if it is
assumed that the revenue rule is narrow in scope and requires courts not to
recognize or enforce foreign revenue laws.163 The court found that the Mail
and Wire Fraud Statutes do not seek to enforce the revenue laws of another
sovereign, but rather to prevent the misuse of our mail and wire systems. 164
―Thus, the fact that the property at issue in the [d]efendants‘ wire fraud
scheme belonged to foreign governments by virtue of these governments‘
respective revenue laws is merely incidental to prosecution under the federal
wire fraud statute.‖165 Further, the defendants argued that to allow courts to
address validity issues of a foreign sovereign‘s revenue laws interferes with
foreign policy, an area of law reserved for the executive and legislative
branches, and thus raises separation of powers issues.166 The court
dismissed defendants‘ separation of powers concerns with very little
reasoning: ―to the extent matters of foreign policy were implicated by
prosecution of the [d]efendants on the wire fraud charges in this case, such
matters were passed upon by the only two branches of our federal
government charged by our Constitution with the power to make foreign
policy decisions.‖167 The court reasoned that because Congress enacted the
statute, and because federal prosecutors under the authority of the executive
branch initiated the charge under the statute, the constitutional limitations of
foreign policy were met.168
     The Fourth Circuit distinctly separated the issue of the applicability of
the revenue rule from the factual determination that unpaid potential tax
revenue constituted ―property‖ for purposes of the wire fraud conviction.169
After determining that the revenue rule was inapplicable due to its historical
scope,170 the court then addressed the issue of whether the ―property‖
element of the wire fraud statute was satisfied.171 Defendants argued that as



 162.     Id. at 338 (Gregory, J., dissenting).
 163.     Id. at 330.
 164.     Id. at 331.
 165.     Id.
 166.     United States v. Pasquantino, 336 F.3d 321, 331 (4th Cir. 2003), cert. granted, 541
U.S. 972 (2004).
  167.    Id. (citing Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111
(1948).
  168.    Id. at 331.
  169.    Id. at 326-33.
  170.    Id. at 330.
  171.    United States v. Pasquantino, 336 F.3d 321, 330 (4th Cir. 2003), cert. granted, 541
U.S. 972 (2004).
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22                       Gonzaga Journal of International Law                           [Vol. 9:1


unrealized tax revenue, there was no ―property‖ defrauded from Canada.172
To recognize the unrealized tax revenue as ―property‖ is to recognize a
property right in something that has yet, and might not, come into existence.
While there may be rights to unrealized property, a staple tenet of property
law,173 the Mail and Wire Fraud Statutes do not address property rights,
only realized property.174 In response to this argument, the court reasoned
that the purpose of the Mail and Wire Fraud Statutes is to prohibit the
misuse of the communication systems.175 As such, the focus of the statute is
on the scheme employed or intended to be employed, not the ultimate
property defrauded.176
     In sum, the Fourth Circuit employed a much deeper analysis than the
courts of Boots and Trapilo, and ultimately held that the proper
interpretation of the revenue rule is that it is a discretionary rather than a
mandatory limit on courts, and that in the event that the revenue rule is
applied to mail and wire fraud convictions, the nature of the statutes do not
require the court to pass judgment on the validity of the property
defrauded.177
     The dissent took a differing view.178 First, the dissent attacked the
court‘s interpretive use of the Restatement‘s articulation of the revenue rule,
specifically that the court ignored the Restatements‘ phrase ―to
recognize‖.179 The dissent argued that ―[w]ith its constrained application of
the revenue rule, the majority has created new law that does not find support
in the Restatement, Supreme Court precedent, nor in any of the rulings from
our sister circuit.‖180 In the dissent‘s view, the proper interpretation of the
revenue rule was the mandatory interpretation.181 For support, it cited the
case of Banco Nacional de Cuba v. Sabbatino,182 a case where the Supreme

  172.      Id. at 331-32 (quoting Cleveland v. United States, 531 U.S. 12, 15 (2000) (stating
that ―[i]t does not suffice, we clarify, that the object of the fraud may become property in the
recipient‘s hands; for purposes of the mail fraud statute, the thing obtained must be property
in the hands of the victim‖).
  173.      A property right is an interest, claim or ownership that one has in tangible or
intangible property. BLACK‘S LAW DICTIONARY (8th ed. 2004).
  174.      See 18 U.S.C. §§ 1341, 1343 (2003).
  175.      Pasquantino II, 336 F.3d at 332.
  176.      Id. (citing Cleveland, 531 U.S. at 22 (stating that ―the mail fraud statute ‗condemns
any scheme to defraud in which the mails are employed, including the evasion of sales and
use taxes‘‖)).
  177.      See id.
  178.      Id. at 338 (Gregory, J., dissenting).
  179.      Id., referencing RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 483 (Gregory,
J., dissenting).
  180.      United States v. Pasquantino, 336 F.3d 321, 338 (4th Cir. 2003) (Gregory, J.,
dissenting), cert. granted, 541 U.S. 972 (2004).
  181.      Id. (Gregory, J., dissenting).
  182.      376 U.S. 412, 413 (1964) (citing Moore v. Mitchell, 30 F.2d 600 (2d Cir. 1929),
aff’d on other grounds, 281 U.S. 18 (1930)).
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Fall 2005]                        Sorting Out the Mess                                     23

Court implied that the revenue rule applied to any effect a foreign revenue
law had upon the courts in the United States and that the rule was not
limited only to instances where the foreign revenue law was attempting to
be enforced.183 The dissent criticized the majority‘s narrow interpretation of
the revenue rule, and noted that in making its ruling, the court created a
circuit split that was unwarranted and unnecessary.184 Finally, the dissent
argued that should the revenue rule‘s application be permissive as the
majority would have it, the policy considerations and rationales behind the
rule ―forcefully support[ed] its application‖ in export smuggling cases.185
     The dissent also criticized the majority‘s holding that unrealized
Canadian tax revenue constituted ―property.‖186 It argued that the existence
of ―property‖ depends upon a factual finding that the revenue laws of
Canada had been violated.187 But in export smuggling cases, defendants are
not accused of defrauding a foreign sovereign of actual property but of a
property right.188 Accordingly, to impose convictions upon the defendants
meant that ―this court would have to conclude that Canada‘s and Ontario‘s
‗right to be paid money‘ had materialized.‖189 In the event that defendants
challenged the validity of such laws, the dissent stated that ―‗our courts
would have to pass on defendants‘ challenges to such law and any claims
not to have or intended to violate them.‘‖190 The dissent weighted this
determination as having the potential for grave consequences on United
States foreign relations with other countries, which strongly encourages
upholding the revenue rule‘s application.191
     Additionally, the dissent took exception to the manner in which the
district court determined that Canadian tax revenue had accrued and the
amount of tax monies allegedly owed to Canada and Ontario.192 The court
relied only upon the non-expert testimony of a Canadian Customs officer,
who neither offered evidence of the existence of the Canadian revenue laws
allegedly violated, nor the method she employed to determine the amount of




 183.      Pasquantino II, 336 F.3d at 338 (Gregory, J., dissenting).
 184.      Id. at 340 (Gregory, J., dissenting).
 185.      Id. (Gregory, J., dissenting).
 186.      Id. at 341-42 (Gregory, J., dissenting).
 187.      Id. (Gregory, J., dissenting).
 188.      United States v. Pasquantino, 336 F.3d 321, 338 (4th Cir. 2003) (Gregory, J.,
dissenting) (citing United States v. Pierce, 224 F.3d 158 (2000)), cert. granted, 541 U.S. 972
(2004).
  189.     Id. at 342 (Gregory, J., dissenting) (quoting Pierce, 224 F.3d at 165).
  190.     Id. (Gregory, J., dissenting) (quoting United v. Boots, 80 F.3d 580, 587 (1st Cir.
1996)).
  191.     Id. (Gregory, J., dissenting).
  192.     Id. at 343 (Gregory, J., dissenting).
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24                      Gonzaga Journal of International Law                          [Vol. 9:1


tax revenue allegedly owed.193 The dissent strongly criticized the district
court for failing to determine if thee allegations of tax evasion were accurate
as a matter of Canadian law194 and for relying on the unsupported figures to
impose defendants‘ sentences.195 Finally, the dissent pointed out that to
vacate defendants‘ convictions would not leave them unpunished.196
Defendants were indicted in Canada for failure to file excise taxes and for
the unlawful importation of spirits.197 The executive branch could choose to
extradite.198 Because of these reasons, the dissent believed that the
defendants‘ convictions should have been overturned.199

                     V. ANALYSIS OF THE IMPLICATED ISSUES

     A complicated set of issues was before the Court in Pasquantino v.
United States.200 While it appears that the true crux of cases such as
Pasquantino is the determination of the revenue rule and its application to
the Mail and Wire Fraud Statutes, it is this very issue that has led to the
current confusion.201 To parse out exactly what lay before the Court in
Pasquantino, a methodical and logical path must be followed. Prior to
jumping ahead to the revenue rule issue, a clear analysis of each step
leading to issue must first be overcome. Following such an analysis shows
that the issue of the revenue rule is improperly implicated because
convictions for smuggling goods into another country are improperly
prosecuted under the Mail and Wire Fraud Statutes. The practice federal
prosecutors have employed of ―working around‖ the Anti-Smuggling
Statute is in direct conflict with clear congressional intent, and accordingly
is improper.202

  193.     United States v. Pasquantino, 336 F.3d 321, 343 (4th Cir. 2003) (Gregory, J.,
dissenting), cert. granted, 541 U.S. 972 (2004).
  194.     Id. (Gregory, J., dissenting).
  195.     Id. (Gregory, J., dissenting).
  196.     Id. (Gregory, J., dissenting).
  197.     Id. (Gregory, J., dissenting).
  198.     United States v. Pasquantino, 336 F.3d 321, 343 (4th Cir. 2003) (Gregory, J.,
dissenting), cert. granted, 541 U.S. 972 (2004).
  199.     See id. (Gregory, J., dissenting).
  200.     Certiorari was granted in 124 S. Ct. 1875 (2004). On November 9, 2004, the Court
heard oral arguments for petitioner and respondent. The Supreme Court issued its written
opinion on April 9, 2005. United States v. Pasquantino II, -- U.S. --, 125 S. Ct. 1766 (2005).
See Man, supra note 7, for a general discussion of the case.
  201.     See discussion supra Parts II-III.
  202.     For a discussion regarding federal prosecutors‘ broad use of the Mail and Wire
Fraud Statutes, see Sean Hween, Mail and Wire Fraud, 41 AM. CRIM. L. REV. 865 (2004) and
Ellen S. Pogdor, "Defensive Territoriality": A New Paradigm for the Prosecution of
Extraterritorial Business Crimes, 31 GA. J. INT'L & COMP. L. 1, 6-7 (2002). The issue of
federal prosecutors employing the Mail and Wire Fraud Statutes to circumvent the reciprocity
clause of the Anti-Smuggling Statute is a very novel one, and there is very little commentary
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Fall 2005]                          Sorting Out the Mess                                       25

                   A. Acting Against Clear Congressional Intent
     As stated above, Congress enacted the Anti-Smuggling Statute, clearly
making smuggling goods into another country in violation of its tax laws a
federal crime, but only if that country has a reciprocal relationship with the
United States to do the same.203 When federal prosecutors turn to the Mail
and Wire Fraud Statutes to obtain a conviction that is otherwise
unobtainable under the Anti-Smuggling Statute, they are effectively
preempting clear congressional intent.204
     In order to maintain sovereign revenue considerations and promote
international diplomacy, Congress has long enacted international tax
treatises to handle international transactions.205 Therefore, Congress was
well-versed in the idea of reciprocal laws at the time it enacted the Anti-
Smuggling Statute in 1939.206 The congressional record shows that when
Congress was drafting the Anti-Smuggling Statute, its primary concern was
the importation of alcohol from Canada into the United States.207 At the
time, prohibition of alcoholic spirits was still in effect, and Congress hoped
the Anti-Smuggling Statute would be an incentive for Canada to enact laws
making smuggling alcohol into the United States a Canadian offense.208
The irony is not lost in the present-day cases of export smuggling; however,
the original intent of the seventy-sixth Congress must still be adhered to.209
Arguably, allowing mail and wire fraud convictions for export smuggling
crimes undermines the express intent of Congress.                Allowing the
convictions to remain and federal prosecutors to continue to use the statutes
to indict export smugglers effectively grants a greater enforcement of
Canadian revenue laws in the United States than the United States revenue

on the subject. This article seeks to provide support for those wishing to take notice of this
issue.
  203.        18 U.S.C. § 546 (2000); see also Man, supra note 7.
  204.        In both Petitioners‘ briefs, as well as the cases of Boots, Trapilo, and Pasquantino
II, little to no argument is made on this point. This is likely because the existence of the Anti-
Smuggling Statute is not one of the traditional arguments of the revenue rule, and defendants
of export smuggling cases have failed to argue this to the court. See Brief for Petitioners,
supra note 138. The traditional arguments for revenue rule application are: (1) The revenue
rule is necessary to maintain amicable relations with foreign countries by not passing
judgment upon their laws, (2) By determining the validity of a foreign law, a court is
interfering with the foreign relations of the United States, a power that is reserved only for the
legislative and executive branches of government, and (3) Determining the validity of foreign
law places too much burden on courts and judges. See discussion supra Part II.C.
  205.        See Dennis D. Curtin, Exchange of Information Under the United States Income
Tax Treaties, 12 BROOKLYN J. INT‘L L. 35 (1986).
  206.        See id.
  207.        H.R. Rep. No. 74-868; S. Rep. No. 74-1036.
  208.        See id.
  209.        See, e.g., Afolayan v. Immigration and Naturalization Serv., 219 F.3d 784 (8th Cir.
2000) (holding that where Congress expressly addressed an issue, courts must adhere to
congressional intent in applying the law).
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26                      Gonzaga Journal of International Law                          [Vol. 9:1


laws are afforded in Canada.210 This is against the intent of the seventy-
sixth Congress‘s enactment of the Anti-Smuggling Statute.211

         B. Is a Failure to Disclose Smuggled Goods Actually “Fraud”?
      As argued in the preceding paragraph, mail and wire fraud convictions
for export smuggling violate the clear congressional intent behind the Anti-
Smuggling Statute;212 however, to conclude the analysis here would be
premature. Therefore, notwithstanding the violation of congressional intent,
where the Mail and Wire Fraud Statutes are applied to export smuggling
operations, the next question in the analysis is whether smuggling legally-
obtained goods into another country constitutes ―fraud.‖213
      Defendants in export smuggling cases often argue that failure to
disclose goods potentially subject to excise taxes is not ―fraud‖ under the
common law meaning of the word.214 To determine the answer to this issue,
the starting point is an application of traditional statutory interpretation.
Where Congress enacts a statute, ―[i]t is a well established rule of
construction that... ‗[w]here Congress uses terms that have accumulated
settled meaning under... the common law, a court must infer, unless the
statute otherwise dictates, that Congress means to incorporate the
established meaning of these terms.‘‖215 The well-established meaning for
actionable fraud is a misrepresentation or concealment of material fact.216
Accordingly, defendants often argue that their actions cannot be actionable
as ―fraud‖ because a ―scheme‖ is not actual deceit or affirmative
misrepresentation.217 This argument is often rejected.218 As the court in
Trapilo determined, ―[t]he term ‗scheme to defraud‘ is measured by a ‗non-
technical standard. It is a reflection of fair play and right dealing in the
general [and] business life of members of society.‘‖219 ―Because the act of

 210.      See Brief for Petitioners, supra note 138, at 49.
 211.      H.R. Rep. No. 868 (1935); S. Rep. No. 1036 (1935). Again, because of the novelty
of these issues and because there are few cases of export smuggling, there is little legal
discourse on the subject, especially pertaining to the preemption of congressional intent.
  212.     See discussion supra Part V.A.
  213.     For a discussion, see United States v. Boots, 80 F.3d 580, 585-86 (1st Cir. 1996).
  214.     See Man, supra note 7; see also Neder v. United States, 527 U.S. 1, 21-22 (1999).
This argument of course relies upon the Mail and Wire Fraud Statutes, and their prohibition of
schemes that employ the mail or wire systems to commit interstate fraud. 18 U.S.C. §§ 1341,
1343 (2002).
  215.     Neder, 527 U.S. at 21-22 (quoting Community for Creative Non-Violence v. Reid,
490 U.S. 730, 739 (1989)).
  216.     RESTATEMENT (SECOND) OF TORTS § 538 (1977).
  217.     Brief for Petitioners, supra note 138, at 2; See also United States v. Trapilo, 130
F.3d 547, 550 n.3 (2d Cir. 1997).
  218.     See, e.g., Trapilo, 130 F.3d at 550-51.
  219.     Trapilo, 130 F.3d at 550, n.3 (quoting Gregory v. United States, 253 F.2d 104, 109
(5th Cir. 1958)).
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Fall 2005]                         Sorting Out the Mess                                      27

smuggling violates fundamental notions of honesty, fair play and right
dealing, it is an action within the meaning of a ‗scheme to defraud.‘‖220 For
these reasons, where there is an issue of determining whether the act of
smuggling constitutes ―fraud‖ for purposes of convictions under the Mail
and Wire Fraud Statutes, arguably the answer must be affirmative.221

               C. Determining if Lost Tax Revenue is “Property”
     The next issue that logically follows in the analysis of this case is the
determination of whether the tax revenue allegedly owed and accrued via
export smuggling schemes constitutes ―property‖ for purposes of mail and
wire fraud convictions.222 This is the ultimate issue that brought
Pasquantino II before the Supreme Court.223 The various circuit courts‘
analysis of this issue has differed, and accordingly the circuit courts have
erroneously, at times, failed to discern that there are two approaches to
answering this question, each of which must be addressed.224 The first
question in the analysis of this issue is whether unassessed tax revenue is
―property‖, as intended by Congress when they enacted the Mail and Wire
Fraud Statutes by applying the common law meaning of the term
―property‖? The second inquiry into the issue is: If the answer to the first
question is affirmative, then the second inquiry is whether recognizing this
alleged ―property‖ or determining the amount of the tax revenue allegedly
owed violates the common law revenue rule? The analysis under each
question could effectively bar prosecutions.225 It is not until a full and
proper analysis of all the issues of an export smuggling cases are addressed
that one can see exactly where a revenue rule analysis fits in. To jump to
this determination without logically going through prior analysis is
premature and results in erroneous conclusions.




 220.     Id.
 221.     See id.
 222.     The first element of mail or wire fraud is that defendant(s) engaged or intended to
engage in a scheme to defraud, or obtained money or property by false pretenses. Matthew
Bender & Co., Inc., 2-44 MODERN FEDERAL JURY INSTRUCTIONS—CRIMINAL P 44.01
(2004). Therefore, courts have addressed the question of whether uncollected unassessed tax
revenue qualifies as ―property‖. See, e.g., United States v. Boots, 80 F.3d 580 (1st Cir. 1996);
Trapilo, 130 F.3d 547; United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003), cert.
granted, 541 U.S. 972 (2004).
  223.    Pasquantino II, 336 F.3d 321, cert. granted, 541 U.S. 972 (2004).
  224.    See, e.g., Boots, 80 F.3d 580; Trapilo, 130 F.3d 547; Pasquantino II, 336 F.3d 321.
  225.    See discussion infra Part V.C.1-2.
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28                      Gonzaga Journal of International Law                        [Vol. 9:1


         1. Determining Congressional Intent, Revisited: Did Congress Mean
              for Unassessed Tax Revenue to Constitute ―Property‖ Under
                        the Mail and Wire Fraud Statutes?
     Black‘s Law Dictionary defines a property right as a claim or interest
in tangible or intangible property.226 Specifically, ―property‖ is defined as
―any external thing over which the rights of possession, use, and enjoyment
are exercised[.]‖227 ―Property interests...are not created by the Constitution.
Rather, they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state
law.‘‖228 In Neder, the Court reasoned and upheld a long-time canon of
congressional intent: ―Under the rule that Congress intends to incorporate
the well-settled meaning of the common-law terms it uses, we cannot infer
from the absence of an express reference to materiality that Congress
intended to drop that element from the fraud statutes.‖229
     The Court addressed the question of determining ―property‖ for
purposes of the Mail and Wire Fraud Statutes in 2000, when it decided
Cleveland v. United States.230 In Cleveland, defendants were initially
convicted under the Mail Fraud Statute for scheming to obtain video poker
licenses from the state of Louisiana via bribing state legislators.231 In its
review of this case, the Court focused its inquiry on the determination of
whether the fraudulent scheme to obtain the video poker licenses constituted
a scheme to defraud the state of Louisiana of ―property‖.232 The Cleveland
Court looked to the question of whether the interest alleged to be ―property‖
is regulatory, and whether the interest is transferable.233 First, the Court
determined that Louisiana‘s interest in granting licenses (and obtaining the
revenue flowing there from) was regulatory in nature, and second, that this
was a long-time recognized property right.234 The Court reasoned that
because Louisiana‘s right to require the licenses was coupled with criminal
penalties for failure to comply with law, the law imposing the license
requirement was regulatory in nature.235 The Court also poignantly noted
that although the regulation created an expected stream of revenue for the


 226.     BLACK‘S LAW DICTIONARY (8th ed. 2004).
 227.     Id.
 228.     Webb‘s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting
Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
  229.    See Neder v. United States, 527 U.S. 1, 23 (1999) (citing Nationwide Mut. Ins. Co.
v. Darden, 503 U.S. 318, 322 (1992)).
  230.    531 U.S. 12 (2000).
  231.    Id. at 16-17.
  232.    Id. at 20.
  233.    Id. at 20-22
  234.    Id. at 23.
  235.    Cleveland v. United States, 531 U.S. 12, 23-24 (2000).
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Fall 2005]                          Sorting Out the Mess                                      29

state, this was incidental and did not create a property right by creating an
expectation.236 Second, to support its finding, the Court cited precedent
when ruling that the Mail and Wire Fraud Statutes were only meant to
protect individual property rights,237 and, as a secondary consideration,
because mail fraud is a predicate offense for purposes of RICO convictions,
the scope of ―property‖ should be defined narrowly.238 Therefore, under the
ruling of Cleveland, a court must look to whether the alleged property right
is transferable, if it has traditionally been considered a property right, and if
it is held by an individual.239
      In the case of Pasquantino II, as well as other export smuggling cases,
the only ―property‖ of which the foreign sovereign was defrauded was the
right to collect revenue, coupled with criminal penalties for failure to
comply with Canadian excise tax laws.240 Under the reasoning in
Cleveland, 241 this does not qualify as ―property‖ for purposes of mail and
wire fraud convictions, because the right to collect Canadian tax money is
not held by an individual and is not transferable. Although the right to
collect money owed is a traditional property right,242 on balance, it is
difficult to find that the interest of a foreign government in collecting
alleged tax revenues was meant to be protected by the Mail and Wire Fraud
Statutes.243 In dicta, the Cleveland Court added that ―[e]ven when tied to an
expected stream of revenue, the State‘s right of control does not create a


 236.     Id.
 237.     ― ‗[T]he mail fraud statute . . . had its origin in the desire to protect individual
property rights, and any benefit which the Government derives from the statute must be
limited to the Government’s interest as property holder.‘‖ Id. at 26 (quoting McNally v.
United States, 483 U.S. 350, 359 n. 8 (1987)).
  238.    Id.
    Moreover, to the extent that the word ―property‖ is ambiguous
    as placed in § 1341, we have instructed that [―]ambiguity
    concerning the ambit of criminal statutes should be resolved in
    favor of lenity.‖ Rewis v. United States, 401 U.S. 808, 812 . . .
    (1971). This interpretive guide is especially appropriate in
    constituting § 1341, because as this case demonstrates, mail
    fraud is a predicate offense under RICO, 18 U.S.C. § 1341, we
    think ―it is appropriate, before we choose the harsher alternative,
    to require that Congress should have spoken in language that is
    clear and definite.‖ United States v. Universal C.I.T. Credit
    Corp., 344 U.S. 218, 222 (1952).

 239.      Cleveland, 531 U.S. at 12-23.
 240.      United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003); see also, United States
v. Boo 80 F.3d 580 (1st Cir. 1996); United States v. Trapilo, 130 F.3d 547 (2d Cir. 1997).
  241.     See Cleveland, 531 U.S. at 23.
  242.     See generally, Reagan v. Farmers‘ Loan and Trust Co., 154 U.S. 362, 364 (1894)
(holding that the right to penalties for violation of a statute is a property right).
  243.     Brief for Petitioners at 35, United States v. Pasquantino, -- U.S. --, 125 S. Ct. 1766
(2005) (No. 03-725).
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30                         Gonzaga Journal of International Law               [Vol. 9:1


property interest any more than a law licensing liquor sales in a State levies
a sales tax on liquor. Such regulations are paradigmatic exercises of the
State traditional police powers.‖244 Such clear reasoning and statements by
the Court in Cleveland warrant upholding the standard that alleged tax
revenue is merely a regulation and not an intended property right for
purposes of mail and wire fraud convictions.
     In addition to the above reasoning, and in particular to the case at hand,
there is no evidentiary basis for affirming the district court‘s determination
that Canada was due tax revenue.245 During the trial of the Pasquantino II
defendants, the court determined that Canada and Ontario were due tax
revenue, as well as the amount owed based upon the non-expert testimony
of a Canadian customs officer.246 This officer offered no support for why
the duties were owed in this case or for her computation of the alleged taxes
owed.247 Under the Federal Rules of Evidence, opinions offered for
scientific, technical, or other specialized skill are considered ―expert
opinions‖ and, as such, must (1) be based upon sufficient facts, (2) be the
product of reliable principles and methods, and (3) be the product of the
application of these principles and methods to the facts of the case.248
Where the witness is not testifying as an expert, however, the Rules require
that the witness‘s testimony only be based on personal opinions or
inferences.249 Additionally, according to the Federal Rules of Civil
Procedure, should an expert testify, the rules of discovery require that in the
party‘s initial disclosures, ―a written report prepared and signed by the



 244.      Cleveland, 531 U.S. at 23 (emphasis added).
 245.      United States v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2003).
 246.      Id. at 293.
 247.      Id.
 248.      FED. R. EVID. 702.
     If scientific, technical, or other specialized knowledge will assist
     the trier of fact to understand the evidence or to determine a fact
     in issue, a witness qualified as an expert by knowledge, skill,
     experience, training, or education, may testify thereto in the form
     of an opinion or otherwise if (1) the testimony is based upon
     sufficient facts or data, (2) the testimony is the product of reliable
     principals and methods, and (3) the witness has applied the
     principals and methods reliably to the facts of the case.
 249.      FED. R. EVID. 701.
     [T]he witness‘s testimony in the form of opinions or inferences is
     limited to those opinion or inferences which are (a) rationally
     based on the perception of the witness, and (b) helpful to a clear
     understanding of the witness‘ testimony or the determination of a
     fact in issue, and (c) not based on scientific, technical or other
     specialized knowledge within the scope of Rule 702.
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Fall 2005]                           Sorting Out the Mess                                  31

witness‖ must be provided.250 The testimony of Officer Jonah failed to
comply with the above-stated rules.251 If her testimony was offered as non-
expert testimony, then she failed to stay within the limits of lay witness
testimony, as defined by Federal Rule of Evidence 701.252 If her testimony
was offered as expert testimony, the prosecution failed to comply with
Federal Rule of Civil Procedure 26(a)(2)(A) and provide an export report.253
Since Officer Jonah‘s testimony failed to qualify in substance as lay
testimony or in form as expert testimony, it is an insufficient basis for
finding proof of lost Canadian tax revenue.254
     At this point in the article, the issues preceding the revenue rule
analysis for export smuggling convictions have been addressed. As one can
see, there is strong argument for disallowing prosecutions of export
smuggling under the Mail and Wire Fraud Statutes.255 Notwithstanding this
argument, the next logical step in the analysis of mail and wire fraud
prosecutions of export smuggling is to address the revenue rule‘s
application.




 250.        FED. R. CIV. P. 26(a)(2)(B).
    The report shall contain a complete statement of all opinion to
    be expressed and the basis and reasons therefore; the data or
    other information considered by the witness in forming the
    opinions; any exhibits to be used as a summary of or support for
    the opinions; any exhibits to be used as a summary of or support
    for the opinions; the qualifications of the witness, including a list
    of all publications authored by the witness within the preceding
    ten years; the compensation to be paid for the study and testimony;
    and a listing of nay other cases in which the witness has testified
    as an expert at trial or by disposition within the preceding four
    years.
  251.    See United States v. Pasquantino, 336 F.3d 321, 324 (4th Cir. 2003), cert. granted,
541 U.S. 972 (2004).
  252.    FED. R. EVID. 701.
  253.    FED. R. CIV. P. 26(a)(2)(A).
  254.    See also United States v. Pierce, 224 F.3d at 165-66. In Pierce, the court
overturned the defendants‘ convictions of export smuggling under the Wire Fraud Statute
because the Government failed to present sufficient evidence that a Canadian tax law existed
and had been broken by the defendants. Id. at 166. Additionally, although Federal Rule of
Criminal Procedure 26.1 allows a court to disregard the rules of evidence and use any
available method in the determination of a foreign law, the trial court in Pasquantino did not
engage in any analysis of the application of Canadian law to petitioners‘ conduct, but rather
accepted the testimony of Officer Jonah as expert testimony. United States v. Pasquantino,
305 F.3d 291, 294 (4th Cir. 2003).
  255.    See discussion supra Part V. Specially, the prosecution of export smuggling under
the Mail and Wire Fraud Statutes is against the clear congressional intent of the Anti-
Smuggling Statute, and the uncollected Canadian tax revenue likely does not qualify as
―property‖ for purpose of mail and wire fraud convictions.
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32                       Gonzaga Journal of International Law                           [Vol. 9:1


  2. The End of the Road: Does the Common Law Revenue Rule Bar the
 Factual Determination that Defendants Defrauded Canada of “Property”?
     Finally, in addressing this issue, the starting point is to determine the
original scope of the common law revenue rule, such as the court in
Pasquantino II attempted to do.256 As articulated by the Pasquantino II
court, the Restatement (Third) of Foreign Relations states that the common
law revenue rule is a discretionary rule, meaning that courts of the United
States are not required to enforce or recognize a foreign sovereign‘s tax
laws.257 On the other hand, other courts have treated the common law
revenue rule as a mandatory rule, one where courts have no discretion to
choose whether to exercise the rule or not.258 The answer and analysis of
this question alone warrants a whole other discussion. Assuming, arguendo,
that the common law revenue rule is a mandatory rule adopted from
England, such a reading of the rule is routinely upheld by the courts to
further the often-cited justifications.259        The policy considerations
underlying the revenue rule support holding that the revenue rule bars
export smuggling prosecution under the Mail and Wire Fraud Statutes.260
     To create the precedent that federal prosecutors can prosecute a United
States citizen who fails to pay an alleged tax owed to another country
imposes a huge burden on the United States court system, and creates
inherent difficulties in doing so.261 These burdens are not only felt by the
agents of the court, but they also strain the resources of the executive branch
and impose greater litigation costs on defendants.262 According to Federal
Rule of Criminal Procedure 26.1, any party wishing to invoke foreign law
bears the burden of proving that foreign law.263 Though this may seem no
more burdensome than any factual determination that must be proven in the
course of a trial, experience and precedent has shown that the inquiry is
much more problematic.264 In United States v. BCCI Holdings (Luxemburg)


 256.      See Pasqauntino II, 336 F.3d at 327.
 257.      RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 483 (emphasis added).
 258.      See United States v. Boots, 80 F.3d 580, 586 (1st Cir. 1996); Attorney General of
Canada v. R.J. Reynolds Tobacco Holdings, 268 F.3d 103, 110-111 (2d Cir. 2001); Moore, 30
F.2d 600, 604 (Hand, J., concurring).
  259.     See discussion supra Part II.C.
  260.     The traditional policy considerations that support the revenue rule are 1) respect for
national sovereignty, 2) separation of powers concerns, and 3) judicial competency in
interpreting foreign law. See discussion supra Part II.C. See also Curtin, supra note 210, at
247-254.
  261.     Id.; see also Amici Curiae Brief in Support of Petitioners, supra note 55, at 13-18
(arguing that the difficult contours of foreign laws require expensive and extensive research
into determining the proper scope, applicability and legality of foreign laws).
  262.     Amici Curiae Brief in Support of Petitioners, supra note 55, at 15-17.
  263.     FED. R. CRIM. P. 26.1.
  264.     See supra note 66 and accompanying text.
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Fall 2005]                         Sorting Out the Mess                                      33

S.A., the court stated that interpretations of foreign law are not merely
factual determinations, but are findings of law.265 For this reason, when
courts are faced with the determination of a foreign law, they either
inadequately determine the application, breadth and/or validity of the
foreign law, or are forced to rely on expansive investigations and
information provided by the litigants.266 In BCCI Holdings, to establish the
foreign law and application thereof, the prosecution presented six experts,
ranging from Bangladeshi Supreme Court justices to advocates of that
court.267 Not only does this demonstrate the expansive lengths that must be
employed to prove a foreign law, it also demonstrates a court‘s reliance on
witness testimony to determine law.268
     The determination of how a court should go about determining the
applicability of foreign law is also a complicated issue. ―[M]any countries
do not agree on the definition of [tax] evasion... due to differing attitudes
toward constituent elements of evasion[.]‖269 In Universal Sales Co. v.
Silver Castle, Ltd., the appellate court held that the district court‘s denial to
consider an expert‘s opinion on the applicability of Japanese trademark law
was erroneous.270 The district court believed that it was free to deny
consideration of the expert‘s opinion under Federal Rule Civil Procedure
44.1,271 a rule that allows a court to conduct its own research in determining
foreign law.272 Instead, the appellate court held that because the district
court failed to do its own investigation into the law, that it could not ignore
the expert testimony.273
     To further complicate matters, under statutory regulation, court-
approved experts are limited to a fee of one thousand six hundred dollars


  265.     977 F. Supp. 1, 6-7 (D. D.C. 1997) (determining whether the Bagladeshi
government had a legitimate interest in a particular foreign transaction). One can instantly see
the dangers in having courts make such a determination that clearly will have an effect on
foreign relations between the United States and other countries.
  266.     See supra note 70 and accompanying text.
  267.     977 F. Supp. at 8-9, nn. 11-14, 17-18.
  268.     See id.
  269.     Bruce Zagaris, Avoiding Criminal Liability in the Conduct of International
Business, 21 WM. MITCHELL L. REV. 749, 803 (1996). For a general discussion of the
inherent difficulties in the differing views of what constitutes ―tax evasion‖, see Zagaris, at
803-06.
  270.     Universal Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036 (Cal. 1999).
  271.     Id. at 1038-39. The court relied on Fed. R. Civ. Pro. 44.1, that a court may consider
proponent‘s evidence of foreign law or conduct its own research. Although this district court
was not obligated to rely on the expert testimony, the court found that the district court could
only ignore the expert testimony if the court engaged in its own extensive research of the
application of foreign law. Id.
  272.     FED. R. CIV. PRO. 44.1 (―The court, in determining foreign law, may consider any
relevant material or source, including testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence.‖)
  273.     Id.
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34                       Gonzaga Journal of International Law                           [Vol. 9:1


($1,600).274 Although litigants may obtain an exception to this rule from the
magistrate, such determinations have often proved complicated and
difficult.275 Additionally, where an indigent defendant clearly shows that he
has a particularized need of expert testimony, the trial court is obligated to
appoint such experts at the expense of the state.276 Therefore, the limitation
of expert fees coupled with the complicated issue of providing expert
witnesses to indigent defendants further burdens the judicial system in cases
where foreign laws are sought to be applied.
     There is no argument against allowing litigants to prove the existence
of violation of a foreign law in American courts, a practice well-employed
in the United States.277 The inherent complications of tax and revenue laws,
as well as the multitude of purposes for enacting revenue and tax laws,
strongly discourage judicial inquiry into the validity of foreign revenue
laws.278 As Judge Learned Hand argued, where a revenue law carries with it
penal authority, to recognize the application of the law a court must inquire
into the moral purpose of the law, and where this moral purpose conflicts
with our inherent sense of morality in the United States, the court is put into
a very precarious position: either enforce the law against its conscience, or
not enforce the law on moral reasons and risk embarrassing or angering the
foreign sovereign.279 The common consensus among both the general
populace, as well as Congress, is the groan that the tax laws of this State are
vastly complicated and laborious. Indeed, the Supreme Court of the United
States has recognized this fact.280 Although it is a common canon of

  274.     18 U.S.C. § 3006A(e)(3) (2004) (providing that ―[c]ompensation to be paid to a
person for services rendered by him to a person under this subsection, or to be paid to an
organization for services rendered by an employee thereof, shall not exceed $1,000 . . . unless
payment in excess of that limit is certified by the court‖).
  275.     See, e.g. Haarhuis v. Kunnan Enterprises, Ltd., 223 B.R. 252, 258 (D. D.C. 1998)
(reviewing the bankruptcy court‘s decision to allow compensation for expert testimony greater
than one thousand dollars).
  276.     See, e.g., Moore v. Kemp, 809 F.2d 702, 718 (1987) (stating that where an indigent
criminal defendant can show that it is reasonably necessary to have the assistance of experts to
render the defendant‘s criminal trial fair, the indigent is entitled to have such experts
appointed to aid in his defense.
  277.     See, e.g., Empressa Agricola Chicama Ltda. v. Amtorg Trading Corp., 57 F. Supp.
649, 650 (D.C. N.Y. 1944); Walton v. Arabian American Oil Co., 233 F.2d 541, 543 (2d Cir.
1956); DP Aviation v. Smith Industries Aerospace and Defense Systems Ltd., 268 F.3d 829
(9th Cir. 2001).
  278.     See, e.g., United States v. Hildebrandt, 961 F.2d 116, 118 (8th Cir. 1992)
(discussing the complicated application of good-faith belief to compliance with United States
tax laws).
  279.     See Moore, 30 F.2d 600, 604 (Hand, J., concurring).
  280.     See Cheek v. United States, 498 U.S. 192, 199-200 (1991) (stating that ―the
proliferation of statutes and regulations has sometimes made it difficult for the average citizen
to know and comprehend the extent of the duties and obligations imposed by the tax laws.
Congress has accordingly softened the impact of the common-law presumption by making
specific intent to violate the law an element of certain federal criminal tax offenses); see also
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Fall 2005]                        Sorting Out the Mess                                     35

criminal prosecution that ignorance of the law is no excuse,281 successful
criminal prosecutions for tax fraud or evasion of United States tax laws
requires proving defendant‘s intent.282 Congress inserted the element of
―willfulness‖ into the tax statutes requiring specific intent to violate tax
laws.283 The purpose of the ―willful‖ element is disrespected when
defendants of foreign tax evasion claim good-faith as a defense and the
court subsequently ignores it.284
     The separation of powers concerns that arise are another consideration
for upholding the revenue rule‘s application to export smuggling cases.285
There has long been discourse about the breadth of each branch‘s scope of
power in foreign policy-making; however it is uncontested that this
determination is between the executive and legislative branches, and that the
judicial branch has no place in setting foreign policy.286 The Government
argues that the Mail and Wire Fraud Statutes implicitly grant authority to
the executive branch to use its discretion in determining which export
smuggling prosecutions will not offend the current state of foreign policy.287
By asserting this argument, the Government implies that the separation of
powers issues are circumvented because the executive branch, i.e. federal
prosecutors, will maintain the status quo of foreign policy via their
discretion in choosing which cases to bring.288 Therefore, by exercising this
discretion, the executive branch ‗shields‘ the judicial branch from having to
decide cases that may interfere with foreign policy and foreign relations;289
however, ―[t]here is no evidence of ‗legislative authorization‘ for the
executive... branch to take upon themselves the delicate task of interpreting
the revenue and penal law of foreign sovereigns.‖290 This argument, though,

United States v. Bishop, 412 U.S. 346, 360 (1973) (stating that ―[i]n our complex tax system,
uncertainty often arises even among taxpayers who earnestly wish to follow the law‖).
  281.    See, e.g., United States v. Spy Factory, Inc., 960 F. Supp. 684, 687-88 (S.D.N.Y.
1997); Hamburg American Steam Packet Co. v. United States, 250 F. 747, 758 (2d Cir. 1918)
(providing that ―[t]he principal is elementary that everyone is presumed to know the law of
the land, both common law and statutory law, and that one‘s ignorance of it furnishes no
exemption from criminal responsibility for his acts‖).
  282.    Cheek, 498 U.S. at 200.
  283.    Id.
  284.    See United States v. Boots, 80 F.3d 530 (1st Cir. 1996); United States v. Trapilo,
130 F.3d 547 (2d Cir. 1997); United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003), cert.
granted, 541 U.S. 972 (2004).
  285.    See Brief for Petitioners, supra note 134, at 45.
  286.    TRIMBLE, supra note 57, at 2. See, e.g. U.S. Const. art. I-II; see also JOHN C.
STENNIS AND J. WILLIAM FULBRIGHT, THE ROLE OF CONGRESS IN FOREIGN POLICY 2-5
(1971).
  287.    See Brief for United States, at 22-25, United States v. Pasquantino, -- U.S. --, 125
S. Ct. 1766, No. 03-725, cert. granted, 124 S. Ct. 1875 (April 5, 2004).
  288.    Id.
  289.    See id.
  290.    Amici Curiae Brief in Support of Petitioners, supra note 55, at 23.
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36                        Gonzaga Journal of International Law                            [Vol. 9:1


presumes that Congress meant to circumvent the revenue rule when
enacting the Mail and Wire Fraud Statutes.291 Further, it seems impractical
to believe that each federal prosecutor‘s independent decisions will
consistently comport with the executive branch‘s foreign policy initiatives.
Although the Government argues that there really are no separation of
powers concerns, their arguments lack legislative support and practicality.292
     The arguments for upholding the revenue rule in export smuggling and
Mail and Wire Fraud cases have been misplaced in the analysis.293 A
methodical analysis of the issues leading up to the question of the revenue
rule show that although the arguments are proper, they must be placed in the
correct order of the analysis in order to be effective. But once the revenue
rule issue is properly reached, policy considerations support the finding that
it is indeed applicable to mail and wire fraud prosecutions of export
smuggling.294

                         D. A Secondary Consideration:
               Racketeer Influenced and Corrupt Organizations Act
     A caveat consideration that the Court could take into consideration is
the affect that the ruling will have on Racketeer Influenced and Corrupt
Organizations (―RICO‖) Act cases.295 ―RICO broadly created a civil treble

  291.      But see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring) (stating that a broad statutory interpretation will not be had if it
presents issues of constitutionality).
  292.      See Amici Curiae Brief in Support of Petitioners, supra note 55, at 23-26.
  293.      In cases such as Boots, Trapilo, and Pasquantino II, courts have addressed the
arguments of congressional intent, whether the ―property‖ element is met, and if export
smuggling constitutes fraud; however, these arguments are addressed under the guise of the
revenue rule‘s application, and are not treated as a separate part of the analysis in determining
whether export smuggling can be prosecuted under the Mail and Wire Fraud Statutes in the
first place. See discussion supra Parts III-IV.
  294.      See discussion supra Part V.C.
  295.      18 U.S.C. § 1962 provides that:
     It shall be unlawful for any person who has received any income derived,
     directly or indirectly, from a pattern of racketeering activity or through collection of
     an unlawful debt in which such person has participated as a principal within the
     meaning of section 2, title 18, United States Code, to use or invest, directly or
     indirectly, any part of such income, or the proceeds of such income, in acquisition of
     any interest in, or the establishment or operation of, any enterprise which is engaged
     in, or the activities of which affect, interstate or foreign commerce. . . It shall be
     unlawful for any person through a pattern of racketeering activity or through
     collection of an unlawful debt to acquire or maintain, directly or indirectly, any
     interest in or control of any enterprise which is engaged in, or the activities of which
     affect, interstate or foreign commerce. . . And, [i]t shall be unlawful for any person
     employed by or associated with any enterprise engaged in, or the activities of which
     affect, interstate or foreign commerce, to conduct or participate, directly or indirectly,
     in the conduct of such enterprise's affairs through a pattern of racketeering activity or
     collection of unlawful debt. 18 U.S.C. § 1962 (1988).
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Fall 2005]                        Sorting Out the Mess                                   37

damages remedy for any person injured in its business or property by reason
of a violation of the statute.‖296 ―To establish a RICO claim, a plaintiff must
show: (1) a violation of the RICO statutes...; (2) an injury to business or
property; and (3) that the injury was caused by the violation of [RICO].‖297
Foreign countries who are victims of export smuggling have attempted to
utilize this statute to recover the tax revenue they believe they are due.298
      In Attorney General of Canada v. R.J. Reynolds Tobacco Holdings,
Inc., the Second Circuit court frustratingly held in exact opposite to what it
held in Trapilo.299 They held that even though the primary purpose of the
RICO statute was to punish racketeering, the revenue rule barred finding
that foreign tax revenue constituted property.300 To distinguish, four years
earlier, the same court held that the revenue rule did not bar finding that
foreign revenue constituted property in mail and wire fraud convictions.301
      In determining the application of the revenue rule to export smuggling
schemes, the Court should consider the possible effects of its decision on
RICO claims brought by foreign governments.302 Allowing tax revenue to
qualify as ―property‖ for purposes of mail and wire fraud convictions
arguably allows the same finding for RICO claims.303 In such cases,
successful RICO plaintiffs are attempting to force U.S. courts to enforce tax
judgments on defendants.304 Such a practice violates the traditional notions
of the revenue rule and, therefore, warrants upholding the revenue rule‘s
application.305

                        VI. THE SUPREME COURT DECIDES

     On April 26, 2005, a strongly-divided Court rendered its decision in
Pasquantino v. United States.306 Writing for the Majority, Justice Thomas
held that the revenue rule was not a bar to prosecutions for export
smuggling under the Wire Fraud Statute.307 Justice Ginsburg filed a
dissenting opinion, joined by Justice Breyer and joined in part by Justices


  296.     Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, 268 F.3d 103, 106
(2d Cir. 2001).
  297.     Id. at 107 (citing De Falco v. Bernas, 244 F.3d 286, 305 (2d Cir. 2001) (emphasis
added)).
  298.     See id. at 106, 108.
  299.     See id. at 108.
  300.     Id.
  301.     United States v. Trapilo, 130 F.3d 547, 552-53 (2d Cir. 1997).
  302.     See Amici Curiae Brief in Support of Petitioners, supra note 55, at 13.
  303.     See id.
  304.     See id.
  305.     See id.
  306.     Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766 (2005).
  307.     Id. at 1770.
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Scalia and Souter, arguing that export smuggling prosecutions were
improper under the Wire Fraud Statute.308

                                A. The Majority Opinion
     After a quick recitation of the facts, Justice Thomas narrowed the scope
of the case to the determination of ―whether a scheme to defraud a foreign
government of tax revenue violated the wire fraud statute.‖309 Immediately
in footnote one, he dismissed any implication of the Racketeer Influenced
and Corrupt Organizations Act in this decision, and expressly stated that this
decision has no bearing on the determination of whether export smuggling
is a predicate offense to a RICO action.310 After dispensing with such
disclaimers, the Majority launched into its analysis.
     The first issue the Majority addressed was whether export smuggling
may be considered proscribed by the Mail and Wire Fraud Statutes.311 The
Court broke this analysis into two questions: (1) whether the defendant
engaged in a ―scheme or artifice to defraud‖, and (2) whether the object of
the fraud constituted ‗property‘ under the Wire Fraud Statute.312 The Court
addressed the second element first; concluding that the right to collect
money is a ―valuable entitlement‖ that constitutes a protected property
interest.313 In coming to this quick conclusion, the Court stated that had
petitioners complied with the revenue laws of Canada, Canada would have
acquired property in the form of tax money. Therefore, circumventing these
tax laws inherently deprived Canada of its property.314 After concluding


 308.       Id. at 1781.
 309.       Id. at 1771.
 310.       Id. But arguably, Justice Thomas is erroneous in his dismissal of this decision on
RICO claims. Under RICO, any victim of an organized scheme may bring a restitution suit in
federal court. Where there has been a conviction of export smuggling under the Mail or Wire
Fraud Statute, it logically follows that the defendant is now subject to civil liabilities under
RICO. See id. at 1787 (Ginsburg, J., dissenting).
  311.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1771 (2005). The Court
states in footnote two that the analysis and decision applies equally to the Mail Fraud Statute,
as the two statutes have identical language, have the same purpose, and are read in
conjunction. Id. at 1771 n. 2.
  312.      Id.
  313.      Id. Justice Thomas has little difficultly reaching this conclusion despite precedent
to the contrary as stated in Cleveland v. United States: ―Even when tied to an expected stream
of revenue, the State's right of control does not create a property interest any more than a law
licensing liquor sales in a State that levies a sales tax on liquor.‖ Cleveland v. United States,
531 U.S. 12, 23 (2000). As already mentioned in this article, Courts that have addresses this
analysis have often immediately addressed the implication of the Mail and Wire Fraud
Statutes, rather than going through a proper determination of Congressional intent. Compare
Justice Thomas‘s approach to this case, beginning with the Wire Fraud Statute analysis, to
Justice Ginsburg‘s dissent that is heavily weighted in an analysis of Congressional intent.
  314.      Id. at 1771-72. Justice Thomas‘ conclusion is illogical. Inherent in this very short
reasoning is the assumption that Canada is in fact owed tax money, and thus recognizes the
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Fall 2005]                         Sorting Out the Mess                                      39

this, Justice Thomas had little difficulty finding that petitioner‘s scheme to
circumvent this property interest constituted a ―scheme to defraud‖.315 In
further support, he turned to an analysis of common law fraud, and cited
that the right to be paid money was a property right, deprivation of which
constituted fraud.316 Finally, the Majority addressed the conflicting
reasoning in Cleveland v. United States.317 The Court distinguished the
reasoning in Cleveland, which held that a state‘s interest in a video poker
license was not a property interest.318 Justice Thomas argued that in
Cleveland, the state interest in the licenses was ―‗purely regulatory‘ and
‗[could not] be economic.‘‖319 Using this apparent distinction, the Majority
argued that Cleveland was different because, here, Canada‘s interest was
purely economic.320 Therefore, the Justice Thomas concluded that the
reasoning in Cleveland is consistent with the ruling in the case before the
Court.321
      After couching its ruling in the determination that the Wire Fraud
Statute proscribes export smuggling, the Court then turned to the issue of
Congressional intent and the Anti-Smuggling Statute.322 Justice Thomas
concluded that neither through the Anti-Smuggling Statute nor through U.S.
tax treaties did Congress mean to preempt mail and wire fraud convictions
for export smuggling schemes.323 In short reasoning, the Majority stated
that since the proscribed conduct is the domestic use of mail or wire
systems, it is improper to narrow prosecutions under the Mail and Wire
Fraud Statutes based on the location of their intended target.324 The Court
dispensed with this critical issue in footnote four, stating that there are many



Canadian tax law. This recognition is in direct conflict with the common law revenue rule.
Additionally, it conflicts with the reasoning in the unanimous decision of Cleveland, that there
is no property interest in an expected ―stream of revenue.‖ Cleveland, 531 U.S. at 23.
  315.     Pasquantino, 125 S. Ct. at 1772.
  316.     Id.
  317.     Id.
  318.     Cleveland, 531 U.S. at 23.
  319.     Pasquantino, 125 S. Ct. at 1772. This is no revelation. The Court in Cleveland
clearly stated that the state‘s interest in the video poker license was regulatory, and based on
this reasoning determined that there was not a sufficient property interest. Further, in making
this determination, the Cleveland Court likened the state‘s tax on the licenses to taxation on
liquor. Cleveland, 531 U.S. at 23.
  320.     Pasquantino, 125 S. Ct. at 1772.
  321.     Id.
  322.     Id. at 1773.
  323.     Id.
  324.     Id. It is easy to concede that the Mail and Wire Fraud Statutes seek only to
criminalize conduct that occurred only within the U.S. borders. The Majority‘s reasoning
completely ignores the application of the Federal Sentencing Guidelines, which mandate that
a defendant‘s sentence be determined by the amount he defrauded. U.S. SENTENCING
GUIDELINES MANUAL § 2B1.1 (2005).
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40                      Gonzaga Journal of International Law                         [Vol. 9:1


instances where the same criminal activity is proscribed.325 With this
reasoning, the Court concluded that even though Congress addressed export
smuggling via the Anti-Smuggling Statute, this does not preclude the same
activity for being prosecuted under the Mail and Wire Fraud Statutes.326
     The second issue Justice Thomas addressed is at the crux of this case:
whether the common law revenue rule bars prosecution of the defendants.327
Justice Thomas began his analysis of this issue by applying the canons of
statutory interpretation. ―‗Statutes which invade the common law... are to
be read with a presumption favoring the retention of long-established and
familiar principals, except where a statutory purpose to the contrary is
evident.‘‖328 Applying this analysis to the conflict of law here, he framed
the question to be whether the Mail and Wire Fraud Statutes contradict the
revenue rule principals.329 The Majority cited United States v. Craft,330 in
which the Court stated, ―[w]e must assume that Congress considered the
impact of its enactment on the question now before us.‖331 The Court
applied this same reasoning to Pasquantino, and determined the question to
be whether the revenue rule was well-established when Congress enacted
the Wire (and Mail) Fraud Statutes.332 The Court began to answer this
question by determining how clear the application of the rule was at the
time the statutes were enacted, and how developed the ensuing case law
was.333 In determining how developed the revenue rule was in 1952, the
Majority narrowed its investigative scope to whether the revenue rule
specifically precluded the present prosecution.334
     In making this determination, Justice Thomas cited the history of the
common law revenue rule and its underpinnings couched in ―the rule
against foreign penal statutes[.]‖335 ―The basis for inferring the revenue rule


  325.     Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1773 n. 4 (2005). The
Court does not give any examples of such ―overlapping‖ laws. Rather, it cites to William
Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 518 (2001), and
United States v. Wells, 519 U.S. 482, 505-09 (1997) (Stevens, J., dissenting). Id. But even a
cursory reading of The Pathological Politics of Criminal Law shows only one statement
asserting that some criminal laws overlap before going on to list several state laws that
proscribe the same conduct. Additionally, the Wells case cited to only asserts that multiple
federal statutes criminalize false statements; however, the underlying substance of each of
these laws criminalizes false statements in a variety of situations.
  326.     Pasquantino, 125 S. Ct. at 1773.
  327.     Id.
  328.     Id. (emphasis added) (citing United States v. Texas, 507 U.S. 529, 534 (1993)).
  329.     Id. at 1774.
  330.     535 U.S. 274, 288 (2002).
  331.     Id.
  332.     Pasquantino, 125 S. Ct. at 1774.
  333.     Id.
  334.     Id. at 1774-75.
  335.     Id. at 1774.
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from the rule against foreign penal enforcement was an analogy between
foreign revenue laws and penal laws.‖336 Distinguishing the present
prosecution, Justice Thomas asserted that in the case at hand, the
prosecution was based on a criminal activity that occurred on domestic
ground, not the foreign tax liability.337 ―A prohibition on the enforcement of
foreign penal law does not plainly prevent the Government from enforcing
domestic criminal law.‖338 For this reason, the Court rejected petitioners‘
contention that the revenue rule should act as a bar to their prosecutions
because it indirectly encourages enforcement of Canadian tax law.339,340
Further, the Court explained that indirect enforcement of foreign revenue
laws has never acted as a bar to the core prosecution.341 Therefore, any
indirect revenue benefit that Canada may receive as a windfall to




  336.     Id. at 1775 (citing Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 290 (1888)). The
Court states that this inference was first made in early cases prohibiting the enforcement of
foreign tax liabilities in U.S. courts, i.e. that a foreign country could not sue in a U.S. court to
collect tax monies allegedly owed to them. Id.
  337.     Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1775 (2005).
  338.     Id. at 1776. The Court distinguishes petitioners‘ prosecution from the cases cited in
petitioners‘ brief by pointing out that the main object of the cases are fundamentally different.
In the case at hand, the collection of foreign tax money is incidental to the prosecution for
domestic fraud, says Justice Thomas. Id. at 1777. But again, this reasoning ignores the
implications resulting from the Federal Sentencing Guidelines. See supra note 330 and
accompanying text; see also supra Part VI.B, Justice Ginsburg‘s dissenting opinion.
  339.     Id. at 1775. The Court rejects the cases petitioners cited as being either not on
point or not bearing precedent. Specifically, petitioners‘ brief cited U.S. cases rejecting suits
brought by foreign entities to recover allegedly owed tax money, and cases applying similar
principals in foreign courts, such as Ireland, Canada and United Kingdom. Id. at 1775-76.
Additionally, petitioners‘ brief argues that the case at hand is based on the enforcement of
foreign revenue laws because of the Mandatory Victims Restitution Act, 18 U.S.C. §§3663A-
3664 (2000), which requires that convicted defendant must repay their victims. Id. at 1777.
But the Court rejects this argument, too, stating that the overlap between the Wire Fraud
Statute and the Mandatory Victims Restitution Act still does not de facto turn the
Government‘s purpose behind the Mail and Wire Fraud Statutes into ensuring for tax revenue
is paid by U.S. citizens. Id.
  340.     The Court also addresses another argument raised by petitioners: that early English
revnue law cases demonstrate that courts were concerned with indirect enforcement of foreign
revenue laws. The Court quickly dispenses with this argument based on historical evidence
that the cases petitioner cites deal with contract law. English courts elected to enforce
shipping contracts that aimed at circumventing foreign revenue laws because of the
interference such laws had with English trade. Id. at 1777-78.
  341.     Id. at 1778-79. The Court is only able to cite two cases for this contention. In
Henry v. Sargeant, plaintiff brought suit alleging that an illegal tax had been imposed against
him in Vermont. 13 N.H. 321, 331-32 (1843). But Henry fails to be on point as it deals with
the determination of whether plaintiff was defrauded rather than if the revenue law could be
enforced. In re Hollins, also cited by the Court, dealt with whether an executor of an estate
could pay foreign tax money due from that estate. 139 N.Y.S. 713, 716-17 (1914), aff’d 212
N.Y. 567. Again, not on point to what the Court is asserting. To use Justice Thomas‘ own
term, the ―object‖ of these cases differs from the ―object‖ of the case at hand.
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42                       Gonzaga Journal of International Law                           [Vol. 9:1


petitioners‘ prosecutions does not invoke the principals of the revenue rule,
and therefore does not bar the prosecutions.342
      ―Having concluded that revenue rule jurisprudence is no clear bar to
[petitioners‘] prosecution,‖ the Court next asked whether the purposes of the
revenue rule supported barring petitioners‘ wire fraud prosecutions.343 In
assessing this question, Justice Thomas addressed each principal
justification for the revenue rule, and applied them purposes to the case at
hand. The first revenue rule principal that the Court addressed is the
principal against passing judgment on foreign law.344 The Court began by
saying that ―[t]he present prosecution created little risk of causing
international friction through judicial evaluation of the policies of foreign
sovereigns.‖345 Explaining, the Court argued that the Executive branch of
the Government is the sole organ of international relations, and as such, a
decision by the Executive branch to bring a prosecution that implicates
foreign law does not violate the principals of foreign relations.346 The Court
also repeated a previous argument here, reminding that the present
prosecution does not further Canadian interest (which in turn may affect
foreign relations).347 Rather, the current prosecution‘s ―object‖ is to prevent
the fraudulent use of U.S. mail and wire systems.348
      The second revenue rule principal that the Court addressed was the
competency of U.S. courts to interpret and apply foreign law.349 The Court
quickly dispensed with this core principal by stating that there is no
particular complexity of the implicated Canadian laws here, and that even if
there was, the Federal Rule of Criminal Procedure 26.1 addresses any
concerns.350     The Majority reasoned that during petitioners‘ trial,
―uncontroverted‖ testimony of a Canadian official provided enough
evidence that petitioners‘ conduct had violated Canadian law; this was




 342.       Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1778-79 (2005).
 343.       Id. at 1779.
 344.       Id.
 345.       Id.
 346.       Id. ―[W]e may assume that by electing to bring this prosecution, the Executive has
assessed this prosecution‘s impact on the Nation‘s relationship with Canada, and concluded
that it poses little danger of causing international friction.‖ Id. But see TRIMBLE, supra note
57, at 47, for a discussion that the overlapping foreign relations powers between the Executive
and Legislative branches remains ambiguous.
  347.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1779-80 (2005).
  348.      Id. at 1780.
  349.      Id.
  350.      Id. Notice that the Court is adjudicating this issue on the ―small picture‖, i.e. the
case at hand, rather than looking at how this precedential ruling will affect future mail and
wire fraud prosecutions.
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Fall 2005]                          Sorting Out the Mess                                      43

sufficient to support the court‘s application of Canadian tax law.351 Also,
Fed. R. Crim. P. 26.1 allows ―a court, in deciding issues of foreign law, to
consider any relevant material or source – including testimony – without
regard to the Federal Rules of Evidence.‖352 Therefore, the danger of
misinterpretation of foreign laws by U.S. courts is circumvented.353
     Finally, the Majority addressed an argument raised not by petitioners,
but rather by the dissent: that such a broad interpretation of the Wire (and
Mail) Fraud Statutes give an extraterritorial effect to an otherwise domestic
law.354 The Court reasoned that any extraterritorial effect of prosecuting
export smuggling schemes under the Mail and Wire Fraud Statutes is
merely incidental, and that the heart of the prosecution is punishing schemes
that wholly took place within U.S. borders.355 Regardless of the location
petitioners‘ scheme targeted, the violation of the Wire Fraud Statute took
place within the United States, and therefore warrants petitioners‘
prosecutions.356 Additionally, the Majority reasoned that because the
language of the Wire Fraud Statute expressly states intent to punish frauds
―executed ‗in interstate or foreign commerce,‘‖ Congress contemplated
foreign application of this law.357
     The Court concluded that ―the broad language of the wire fraud statute
authorizes [prosecutions of export smuggling] and no canon of statutory
construction permits us to read the statute more narrowly.‖358 For these
reasons, the Majority affirmed the Court of Appeals‘ decision, and
petitioners‘ convictions were allowed to stand.359

                                B. Four Justices Dissent
     Although the Majority elected to uphold petitioners‘ convictions in
light of the revenue rule,360 Justice Ginsburg dissented from this election.
Joined by Justice Breyer, and Justices Souter and Stevens in part, she issued


  351.     Id. But as pointed out in this article, as well as Justice Ginsburg‘s dissent,
essentially no inquiry was done into the validity of the Canadian revenue laws purported by
the Government. Id. at 1786-87 (Ginsburg, J., dissenting).
  352.     Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1780 (2005) (internal
quotations omitted).
  353.     This appears to be a weak justification for the lack of inquiry in the case at hand.
Although Federal Rule of Criminal Procedure 26.1 allows the investigating court to look
beyond the evidence presented to them by counsel in determining the application of foreign
law, a duty to inquire still exists. See, e.g., Scranton v. Wheeler, 179 U.S. 141, 152-53 (1900).
  354.     Pasquantino, 125 S. Ct. at 1780.
  355.     Id.
  356.     Id.
  357.     Id. at 1781 (quoting 18 U.S.C. § 1343).
  358.     Id. at 1781.
  359.     Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1781 (2005).
  360.     Id.
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a dissenting opinion that would have vacated petitioners‘ convictions under
the Wire Fraud Statute.361 First, Justice Ginsburg criticized the Majority for
disregarding ―our repeated recognition that ‗Congress legislates against the
backdrop of the presumption against extraterritoriality.‘‖362 This principal
states that unless Congress clearly expresses to the contrary, its legislation is
presumed to have only a domestic effect.363 She additionally supported this
notion by pointing out where Congress did intend to have a extraterritorial
effect: the Export Smuggling Act, 18 U.S.C. § 546.364 According to Justice
Ginsburg, the Court should defer to the established tax treaties between
Canada and the United States, which provide for the collection of ―taxes
owed [that] have been finally determined.‖365
     Justice Ginsburg began by pointing out that to procure a conviction
under the Mail or Wire Fraud Statute, a predicate offense of a scheme to
defraud must be found.366 In the case at hand, to establish this scheme, the
Court must take notice of the existence of Canadian tax laws, and that
petitioners‘ conduct violated these laws.367 Illustrating this significant point,
Justice Ginsburg hypothesized that had there been no Canadian excise tax,
regardless of petitioners‘ belief, their activities would not be prosecutable
under the Wire Fraud Statute.368 At petitioners‘ trial, the only proof the
Government offered that Canadian excise taxes were evaded was non-expert
testimony that included an ―approximation‖ by a Canadian customs
official.369 It troubled the dissent that petitioners‘ sentencing phase also
relied on the recognition and application of Canadian tax law.370 She


 361.       Id. (Ginsburg, J., dissenting).
 362.       Id. at 1782 (Ginsburg, J., dissenting) (citing EEOC v. Arabian American Oil Co.,
499 U.S. 244, 248 (1991)).
  363.      Id. ―[T]he presumption against extraterritoriality is a guide to interpretation of the
kind courts ordinarily bring to bear in endeavoring to discern the meaning of legislative text.‖
Id. at 1782 n. 2 (Ginsburg, J., dissenting).
  364.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1782 (2005) (Ginsburg,
J., dissenting).
  365.      Id. (Ginsburg, J., dissenting).
  366.      Id. (Ginsburg, J., dissenting).
  367.      Id. (Ginsburg, J., dissenting).
  368.      Id. (Ginsburg, J., dissenting).
  369.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1783 (2005) (Ginsburg, J.,
dissenting). For a description of the calculation of Canadian taxes, see supra notes 140 and
141 and accompanying text.
  370.      The Majority fails to adequately address this issue. Under the Federal Sentencing
Guidelines, the amount defrauded is the basis for determining a defendant‘s sentencing. In the
case of Pasquantino, petitioners‘ sentences were based on the non-expert approximation of
revenue due by the Canadian customs official. Pasquantino, 125 S. Ct. at 1783 (Ginsburg, J.,
dissenting). As the dissent pointed out in the lower court, ―the bulk of defendants‘ sentences
were related, not to the American crime of wire fraud, but to the Canadian crime of tax
evasion.‖ United States v. Pasquantino, 336 F.3d 321, 342 (4th Cir. 2003) (Gregory, J.,
dissenting).
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Fall 2005]                         Sorting Out the Mess                                      45

criticized the ―casual manner‖ in which the Government proffered evidence
in support of its sentencing recommendation, stating that ―the Customs
official was not offered as an expert witness and ‗[t]he [D]istrict [C]ourt
never determined whether [her] calculations were accurate as a matter of
Canadian law.‘‖371 To Justice Ginsburg, the district court‘s ―deeply
troubling‖ lack of inquiry into the validity of the Canadian custom official‘s
calculation demonstrates the inability and reluctance of the Government to
―grapple with the details of foreign revenue laws.‖372
      Additionally addressed by the dissent is the Majority‘s holding in this
case that essentially enforces Canadian tax law, despite prior precedent of
the Court that ―§1341 [is] limited in scope to the protection of property
rights.‖373 Justice Ginsburg argued that in the decision at hand, the Majority
ignores the fact that Congress has not spoken with clear intent to give the
Mail or Wire Fraud Statutes an extraterritorial effect.374 Absent this clear
Congressional language, coupled with the backdrop of the presumption
against extraterritoriality, the dissent found the application of the Mail and
Wire Fraud Statutes to the schemes of export smuggling unsettling.375 The
presence of international tax treaties that address issues where U.S. citizens
owe Canadian tax revenue, coupled with the principals of statutory
interpretation that unless Congress speaks clearly, legislation is presumed to
have no extraterritoriality, led Justice Ginsburg to conclude in the first part
of her opinion that the Mail and Wire Fraud Statutes do not extend to export
smuggling schemes.376
      In the second part of her dissenting opinion, Justice Ginsburg, joined
by Justices Scalia and Souter, concluded that the principals of the revenue
rule bar the recognition of the ―property‖ petitioners‘ scheme allegedly
targeted.377 In addition, there is no indication that Congress meant to
displace the revenue rule when it enacted the Mail and Wire Fraud
Statutes.378 In support for this contention, Justice Ginsburg turned to the


  371.      Pasquantino, 125 S. Ct. at 1784 (Ginsburg, J., dissenting) (quoting Pasquantino II,
336 F.3d at 343 (Gregory, J., dissenting).
  372.      Id. (Ginsburg, J., dissenting).
  373.      Id. (Ginsburg, J., dissenting) (citing McNally v. United States, 483 U.S. 350, 360
(1987)). In McNally, the Court stated that ―[i]f Congress desires to go further [in the scope of
§ 1341], it must speak more clearly than it has. McNally, 483 U.S. at 360.
  374.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1784-85 (2005)
(Ginsburg, J., dissenting).
  375.      Id. at 1786 (Ginsburg, J., dissenting).
  376.      Id. (Ginsburg, J., dissenting).
  377.      Id. at 1786-87 (Ginsburg, J., dissenting).
  378.      Id. (Ginsburg, J., dissenting). The dissent also points out that during petitioners‘
initial sentencing phase, the Government conceded that even though the Mandatory Victims
Restitution Act, 18 U.S.C. § 3663A, requires restitution be paid to victims of mail and wire
fraud, it was inappropriate in this case. Later though, the Government rescinded this
concession. The dissent argues that this initial concession indicates the Government‘s
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46                       Gonzaga Journal of International Law                           [Vol. 9:1


Mandatory Victims Restitution Act.379 She pointed out that on one hand,
Congress has expressly stated that the Restitution Act is to apply to all wire
fraud prosecutions, while on the other hand, remains ambiguous regarding
the extraterritorial scope of the Mail and Wire Fraud Statutes.380 For Justice
Ginsburg, this is a strong Congressional indication that the Mail and Wire
Fraud Statutes were not meant to extend to schemes to evade foreign tax
collection.381
     In Justice Ginsburg‘s third argument, again joined by Justices Scalia
and Souter, she concluded that ―the rule of lenity counsels against adopting
the Court‘s interpretation of [Section] 1343.‖382 She couched this final
reasoning in the long-held principal that where there are ―two rational
readings of a criminal statute, one harsher than the other, we are to choose
the harsher only when Congress has spoken in clear and definite
language.‖383 Accordingly, Justice Ginsburg reasoned that the Majority‘s
finding exposes an individual to severe criminal penalties under the Mail
and Wire Fraud Statutes, as well as both the RICO and money laundering
statute, whereas the rule of lenity would counsel against petitioners‘
convictions.384 For these reasons, the four dissenting justices would exclude
export smuggling schemes from prosecution under the Mail and Wire Fraud
Statutes.385

                                    VII. CONCLUSION

     To properly resolve the issues that arise in prosecuting export
smuggling schemes under the Mail and Wire Fraud Statutes, the Court must
step back and understand how lower appellate courts arrived at the issue at
hand. First, Congress‘s clear intent in dealing with international smuggling
into a foreign sovereign cannot be ignored.386 Congress expressly dealt with
the very fact pattern that the Court finds before it when enacting the Anti-
Smuggling Statute.387 Federal prosecutors have erroneously circumvented


recognition that the present prosecution raises revenue rule concerns. Id. at 1787 (Ginsburg,
J., dissenting).
  379.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1787 (2005) (Ginsburg, J.,
dissenting) (citing the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A(c)(1)(A)(ii)
(200)).
  380.      Id. (Ginsburg, J., dissenting).
  381.      Id. (Ginsburg, J., dissenting).
  382.      Id. (Ginsburg, J., dissenting).
  383.      Pasquantino v. United States, -- U.S. --, 125 S. Ct. 1766, 1787 (2005) (Ginsburg, J.,
dissenting) (internal quotations omitted).
  384.      Id. (Ginsburg, J., dissenting).
  385.      Id. (Ginsburg, J., dissenting).
  386.      See discussion supra Part II.A.
  387.      See id.; see also 18 U.S.C. § 546 (2000).
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Fall 2005]                           Sorting Out the Mess                  47

the congressional intent of the Anti-Smuggling Statute, a maneuver not to
be taken lightly.388 The next logical issue is determining if the act of
smuggling constitutes ―fraud‖ under the meaning of the Mail and Wire
Fraud Statues.389 A look at the common law meaning of fraud at the time
the Mail and Wire Fraud Statues were enacted supports finding that export
smuggling schemes constitute ―fraud‖.390 Finally, the paramount issue that
brings Pasquantino II before the Court is the determination of whether the
allegedly owed tax revenue constitutes ―property‖ for purposes of mail and
wire fraud. Applying the basic principals of statutory interpretation, it
seems that the Mail and Wire Fraud Statutes are not meant to include
unassessed tax revenue as ―property‖.391 In the event that foreign tax
revenue qualifies as ―property‖ under the statutes, the policy considerations
of the revenue rule support upholding it as a bar to mail and wire fraud
convictions for export smuggling.392 Although the Court granted certiorari
to determine the issue of the revenue rule‘s application to the Mail and Wire
Fraud Statutes, there are other reasons to hold that export smuggling cases
should not be prosecuted under these statutes. For these reasons, the Court
should have vacated defendants‘ convictions, and condemned federal
prosecutors‘ circumvention of the Anti-Smuggling Statue, a practice that
clearly violates the intent of Congress to affect foreign policy.




 388.        See discussion supra Part II.A.
 389.        See discussion supra Part II.B.
 390.        See discussion supra Part V.B.
 391.        See discussion supra Part V.C.
 392.        See id.

				
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