State v. Jack

67 P.3d 673, 2003 Alas. App. LEXIS 64, 2003 WL 1860740

• Court: Court of Appeals of Alaska
• Decided: April 11, 2003
• Docket: A-8062
• Status: Published

Opinions

OPINION

STEWART, Judge.

On May 12, 2001, the Alaska state ferry Matanuska was navigating the Inside Passage on a voyage from Bellingham, Washington, to Southeast Alaska. According to the grand jury's indictment, while the Matanuska cruised through Canadian territorial waters, Vernon G. Jack, V, engaged in sexual contact and sexual penetration with S.N.F. and physically assaulted her. An Alaska State Trooper who happened to be aboard the Matanus-ka investigated Jack's conduct and arrested him. The grand jury in Ketchikan charged Jack with one count of first-degree sexual assault, one count of second-degree sexual assault, and four counts of fourth-degree assault for his misconduct aboard the Matanus-ka while it was in Canadian territorial waters.¹

Superior Court Judge Larry R. Weeks granted Jack's motion to dismiss the indietment based on the State's lack of jurisdiction to prosecute Jack. We granted the State's petition for review. Because we conclude that the State's criminal jurisdiction did not extend to Canadian territorial waters, we affirm the superior court.

Under common law, a state has jurisdiction to prosecute those crimes occurring within its territorial limits² And a state, by statute, may extend its jurisdiction to enforce violations of its substantive criminal law when a person's conduct occurring outside the territorial limits of the state affects an in-state interest.³

We discussed Alaska's statutory extension of criminal jurisdiction under AS 12.05.010 in Wheat v. State.⁴ That statute provides:

When the commission of a erime commenced outside the state is consummated inside the state, the defendant is liable to punishment in this state even though out of the state at the time of the commission of the erime charged, if the defendant consummated the crime through the intervention of an innocent or guilty agent, or by other means proceeding directly from the defendant.

Wheat kept his daughter in Arizona after his visitation under an Alaska child custody order ended.⁵ The State charged Wheat with second-degree custodial interference.⁶ Wheat argued that Alaska could not prosecute him for this crime because his conduct occurred outside the State of Alaska.⁷ We reasoned that the results of Wheat's crime, withholding his child from her lawful custodian who resided in Alaska, occurred in Alas-kas⁸ Therefore, we concluded that the crime was consummated in Alaska and that the State properly prosecuted Wheat.⁹

In this case, the State has made no claim that Alaska has jurisdiction to prosecute Jack under AS 12.05.010 because Jack's misconduct and the results of his misconduct all occurred in Canadian territorial waters. Thus, the State must have another basis for prosecuting Jack for a violation of Alaska criminal law.

The State claims it has this power under AS 44.03.010. Alaska Statute 44.08.010 provides:

The jurisdiction of the state extends to water offshore from the coast of the state as follows:

(1) the marginal sea to its outermost limits as those limits are from time to time defined or recognized by the United States of America by international treaty or otherwise;

(2) the high seas to the extent that jurisdiction is claimed by the United States of America, or to the extent recognized by the usages and customs of international law or by agreement to which the United States of America or the state is a party;

(3) submerged land including the subsurface of submerged land, lying under the water mentioned in this section.

We considered this statute in Corbin v. State,¹⁰ where a jury had convicted Corbin of stealing crab pots in the crab fishery more than sixteen miles offshore of Alaska.¹¹ Cor-bin argued that the State had no jurisdiction to prosecute him for this theft because the federal government had exclusive jurisdiction in offshore waters beyond three miles and had preempted state regulation of offshore theft by enacting a theft statute that applied in the special maritime jurisdiction of the United States.¹² For purposes of his case, Corbin conceded that, on its face, AS 44.03.010 extended Alaska eriminal jurisdiction to offshore waters.¹³

In Corbin, we relied in part on the Alaska Supreme Court's decision State v. Bundrant.¹⁴ The Bundrant court ruled that the federal government had not preempted state regulation of the crab fishery offshore of Alaska, and that Alaska could therefore extend its jurisdiction beyond its territorial boundary in order to effect conservation of the fishery within state waters.¹⁵ The court concluded that "a sufficiently close connection to legitimate state interests [had] been established to validate the state's limited efforts to regulate this resource." ¹⁶ In Cor-bin, we applied Bundrant and concluded that the enforcement of the Alaska theft statute to a crab-pot theft occurring in offshore waters "was so closely tied to the regulation of the crabbing industry that state jurisdiction in this case is justified." ¹⁷ However, in Cor-bin's case, we did not rule whether AS 44.03.010 extended Alaska's jurisdiction into Canadian territorial waters.

Alaska Statute 44.08.010 provides generally that the jurisdiction of the State extends to "waters offshore from the coast of the state" and describes specifically the area claimed by the state. To properly interpret whether AS 44.08.010 grants Alaska jurisdiction over Canadian territorial waters we must discuss a coastal state's authority over offshore waters.

In United States v. California,¹⁸ the Supreme Court held that a coastal state had no authority over submerged lands in the territorial or marginal sea beyond the mean low water mark.¹⁹ In 1953, Congress responded by enacting the Submerged Lands Act, which "recognized, confirmed, established, and vested in and assigned to the respective States" title to submerged lands under the marginal sea.²⁰ During the same session, Congress also passed the Outer Continental Shelf Lands Act (OCSLA).²¹ Section 1332 of the OCSLA reads in part:

(a) It is hereby declared to be the policy of the United States that (1) the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchap-ter; (2) this subchapter shall be construed in such manner that the character of the waters above the outer Continental Shelf as high seas and the right to navigation and fishing therein shall not be affected[.]

Under international law, the United States has authority over the sea adjacent to its coastline.²² In Section 2 of the Alaska Statehood Act, Congress provided that the State of Alaska included all of the territory, "together with the territorial waters appurtenant thereto[.]" ²³ This grant is mirrored by Article 12, Section 1 of the Alaska Constitution, which provides that the boundaries of the State include "the territorial waters appurtenant thereto[.]"²⁴ As the Alaska Supreme Court observed in Metlakatla Indian Community v. Egan,²⁵ the legislature passed AS 44.08.010 to extend Alaska's seaward boundaries to include the marginal sea, the high seas, and the submerged lands to the extent permitted by the federal government.²⁶

Again, AS 44.08.010 provides that the jurisdiction of the state extends to "waters offshore of the coast of the state" and then specifies the three categories included: (1) the marginal sea, (2) the high seas to the extent claimed by the United States or recognized by international law, and (8) the submerged land under the first two defined categories. Jurisdiction would not be possible in this case under clause (1) because, as the superior court found, Jack's misconduct occurred entirely in Canadian territorial waters.

The State argues that Alaska has jurisdiction under clause (2) because the State interprets "high seas" in clause (2) to include all the ocean offshore of Alaska up to the low-water mark of all countries. But this interpretation is far too broad, and ignores the statute's initial limitation to "waters offshore the coast.²⁷ The State provides no authority that would support a conclusion that the United States is empowered to regulate foreign territorial waters under either its power to regulate "Piracies and Felonies committed on the high seas," *" or the federal government's special admiralty and maritime jurisdiction.²⁸

Under its admiralty and maritime jurisdiction, the United States may define and punish crimes committed by its citizens on U.S.flagged vessels (such as the Matanuska) operating in foreign territorial waters.²⁹ Based on this special jurisdiction, the State argues that Alaska has jurisdiction under AS 44.08.010 to prosecute Jack's misconduct committed on an Alaskan vessel in Canadian territorial waters: However, the United States' authority over its flagged vessels while they are in foreign territorial waters is not exelusive-the coastal state has a concurrent interest in regulating the conduct aboard vessels within its territorial waters.³⁰ In other words, the fact that the United States has criminal jurisdiction over its flagged vessels does not preclude Canada from exercising its own jurisdiction when conduct aboard the vessel affects Canada's "peace, dignity or tranquility." ³¹ And even if the United States had jurisdiction over the vessel while it was in Canada's territorial waters, it does not follow that Alaska has the same jurisdiction, because nothing in AS 44.08.010 indicates that the legislature intended to assert jurisdiction over an Alaskan vessel operating outside the territorial waters specifically described in the statute.

We conclude that AS 44.03.010 does not extend state criminal jurisdiction into Canadian territorial waters.

Conclusion

The judgment of the superior court is AFFIRMED.

1 . AS 11.41,410(a)(1), AS 11.41.420(a)(1), and AS 11.41.230(a), respectively.

2 . See Rollin M. Perkins & Ronald N. Boyce, Criminal Law at 38-45 (3rd ed.1982); 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.7 at 160-63, 2.9(a) at 180-86 (1986).

3 . See Perkins & Boyce, Criminal Law at 41-42; LaFave & Scott, Substantive Criminal Law § 2.9(b) at 186-90.

4 . 734 P.2d 1007 (Alaska App.1987).

5 . Id. at 1007-08.

6 . AS 11.41.330(a).

7 . See Wheat, 734 P.2d at 1007-08.

8 , Id. at 1010-11.

9 . Id. at 1011-12.

10 . 672 P.2d 156 (Alaska App.1983).

11 . Id. at 157.

12 . Id.

¹³

14 . 546 P.2d 530 (Alaska), appeal dismissed sub nom, Uri v. Alaska, 429 U.S. 806, 97 S.Ct. 40, 50 L.Ed.2d 66 (1976).

15 . Id. at 544-48, 552-54.

16 . Id. at 554.

17 . Corbin, 672 P.2d at 158.

18 . 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947).

19 . Id. at 39, 67 S.Ct. at 1668.

20 . 43 U.S.C. § 1311(a).

21 . 43 U.S.C. §§ 1331-43.

22 . See Restatement (Third) of Foreign Relations Law § 511 (1987).

23 . Pub.L. No. 85-508, 72 Stat. 339 (1958).

24 . Alaska Const. art. 12, § 1.

25 . 362 P.2d 901 (Alaska 1961), vacated on other grounds, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562, aff'd, Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962).

26 . Id. at 926.

27 . U.S. Constitution, art. I, § 8, cl. 10.

28 . U.S. Constitution, art. IIH, § 2, cl. 1.

29 . See United States v. Rodgers, 150 U.S. 249, 266, 14 S.Ct. 109, 116, 37 L.Ed. 1071 (1893); United States v. Flores, 289 U.S. 137, 153, 53 S.Ct. 580, 584, 77 L.Ed. 1086 (1933).

30 . See Restatement (Third) Foreign Relations Law §§ 502(2), 512; see also Wildenhus's Case, 120 U.S. 1, 12, 7 S.Ct. 385, 387, 30 L.Ed. 565 (1887).

31 . Rodgers, 150 U.S. at 261, 14 S.Ct. at 113.