United States 9th Circuit Court of Appeals Reports

U.S. v. LEE, 05-10478 (9th Cir. 12-27-2006) United STATES
of America, Plaintiff-Appellee, v. Kil Soo LEE,
Defendant-Appellant. No. 05-10478. United States Court of
Appeals, Ninth Circuit. Argued and Submitted November 13,
2006 — Honolulu, Hawaii. Filed December 27, 2006.

Appeal from the United States District Court for the
District of Hawaii, Susan Oki Mollway, District Judge,
Presiding, D.C. No. CR-01-00132-SOM.

Earle A. Partington, Honolulu, Hawaii, for the

Lisa J. Stark, Department of Justice, Washington, D.C., for
the plaintiff-appellee.

Before: Stephen S. Trott, Kim McLane Wardlaw, and William
A. Fletcher, Circuit Judges.

Opinion by Judge Trott


TROTT, Circuit Judge.

This appeal raises the issue of whether a person arrested
in American Samoa for allegedly committing federal crimes
in American Samoa may be tried and convicted in the United
States District Court for the District of Hawaii (“District
Court”). Kil Soo Lee (“Lee”) was convicted of extortion,
money laundering, conspiring to violate the civil rights of
others, and holding workers to a condition of involuntary
servitude. Lee argues that his conviction and sentence are
void because, first, the District Court lacked
jurisdiction, and, second, the District of Hawaii was an
improper venue. We disagree. We hold that the District Court
had jurisdiction, and the District of Hawaii was a proper
venue, pursuant to 18 U.S.C. § 3231, and 18 U.S.C.
§ 3238, respectively.



Lee owned and operated a garment factory in American Samoa,
an unincorporated territory of the United States located in
the South Pacific. Lee recruited individuals from Vietnam,
China, and American Samoa to work at the factory. Once the
workers arrived in American Samoa, Lee controlled most
aspects of their lives, including when and whether they
could leave the compound, eat, or be paid.

Initially, Lee’s actions included incidents of
imprisonment, starvation of his workers, and deportation
threats. Lee prevented workers from leaving the compound
for several days at a time. In addition, Lee fed workers so
sparingly that they were forced to sneak out of the
compound in search of food. At trial, the workers’
imprisonment and starvation claims were corroborated by
individuals outside the compound. For example, on at least
two different occasions, individuals observed Vietnamese
women behind barbed-wire fences crying for food and help.
Although those events prompted American Samoa authorities
to investigate the factory conditions as early as May 1999,
Lee obstructed these investigations by threatening to
deport, or deporting, any worker who cooperated with the

Eventually, factory supervisors and guards began to
physically abuse workers who disobeyed orders. The most
violent abuse occurred on November 28, 1999. On that day,
Lee, faced with a difficult deadline on a large contract,
ordered Nuu’Uli, a Samoan supervisor, to beat disobedient
workers. According to one witness, Lee said to Nuu’Uli,
“you can beat anyone who don’t [sic] listen to you. If
anyone die [sic], I will be responsible.” Immediately
thereafter, Nuu’Uli grabbed the shirt collar of one of the
workers and choked her until she was unable to breath. When
Vietnamese workers came to her rescue, approximately 20
Samoan guards attacked the seamstresses with plastic
plumbing pipes. During the altercation, one Vietnamese
worker lost her eye. Several other Vietnamese workers were
injured. In describing the event, one worker testified, “It
was [like] watching a film where the people are being
brutally beaten to the point of like massacre . . . .
[T]here was a lot of blood on the line and on the floor of
the factory and on the fabrics.”

For reasons unknown to this court, American Samoa
authorities did not prosecute Lee; however, the United
States government did. On March 23, 2001, the District
Court issued a warrant for Lee’s arrest. The Complaint
alleged violations of 18 U.S.C. § 1584 (involuntary
servitude) and 18 U.S.C. § 1589 (forced labor).
Federal authorities arrested Lee in American Samoa. Two
days later, authorities transferred Lee approximately 2,300
miles to Hawaii, the site of the federal district court
nearest to American Samoa. On April 5, 2001, a federal grand
jury returned a two-count indictment charging Lee with the
offenses set forth in the Complaint.

On July 16, 2001, Lee moved to dismiss for lack of
jurisdiction and improper venue. Specifically, Lee claimed,
“under the Constitution and relevant statutes, jurisdiction
and venue in this case properly lies in the court of
American Samoa, which has been vested with plenary judicial
authority over the territory of American Samoa.” In
response, the government asserted that the District Court
had jurisdiction, and was a proper venue, under 18 U.S.C.
§ 3231 and 18 U.S.C. § 3238, respectively.
The District Court agreed with the government, and denied
Lee’s motion on August 30, 2001. The court indicated that,
technically, Lee had not moved for dismissal on the ground
of jurisdiction, but rather venue. Then, the court disposed
of Lee’s venue argument in three steps. First, the court
noted that the case turned on whether American Samoa was a
“district” pursuant to venue statute 18 U.S.C. §
3238.[fn1] Second, the court held that American Samoa was
not a “district” because (1) American Samoa was absent from
the list of judicial districts in the United States Code,
and (2) Congress never vested American Samoa courts with
the authority of statutorily defined “district courts.”
Third, the court concluded that because United States
district courts maintain jurisdiction to prosecute federal
crimes pursuant to § 3231, and because American
Samoa did not constitute a “district” pursuant to §
3238, the court was appropriately exercising jurisdiction
and the District of Hawaii was a proper venue.

On that same day, a federal grand jury returned a 22-count
superseding indictment. Lee was charged with (1) conspiring
to deny approximately 250 garment workers the right to be
free from involuntary servitude in violation of 18 U.S.C.
§ 241 (Count 1); (2) holding seventeen workers to a
condition of involuntary servitude in violation of 18 U.S.C.
§§ 1584 and 1594 (Counts 2-18); (3) extortion
in violation of 18 U.S.C. § 1951 (Count 19); (4)
money laundering in violation of 18 U.S.C. §
1956(a)(1)(A)(i) (Count 20); (5) making a false statement to
a financial institution in violation of 18 U.S.C. §
1014 (Count 21); and (6) bribery in violation of 18 U.S.C.
§ 215(a)(1) (Count 22).

After a four month jury trial, Lee was convicted of 14
counts: Count 1 (conspiracy to violate civil rights);
Counts 2, 3, 4, 5, 6, 7, 9, 12, 13, 15, and 17 (involuntary
servitude); Count 19 (extortion); and Count 20 (money
laundering). Lee was sentenced to a term of imprisonment
totaling 480 months. The court imposed consecutive
sentences. Lee filed a timely appeal.



We determine jurisdiction and venue issues de novo. United
States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004) (as
amended) (jurisdiction); United States v. Liang, 224 F.3d
1057, 1059 (9th Cir. 2000) (venue).



A. Jurisdiction

[1] “A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively appears.”
United States v. Arnaiz, 842 F.2d 217, 219 (9th Cir. 1988)
(quoting Gen. Atomic Co. v. United Nuclear Corp., 665 F.2d
968, 968-69 (9th Cir. 1981)). In 18 U.S.C. § 3231,
entitled “District courts,” Congress vested district courts
of the United States with jurisdiction to prosecute federal

The district courts of the United States shall have
original jurisdiction, exclusive of the courts of the
States, of all offenses against the laws of the United

Nothing in this title shall be held to take away or
impair the jurisdiction of the courts of the several
States under the laws thereof.

The United States District Court for the District of Hawaii
is a “district court of the United States.” See 28 U.S.C.
§§ 91, 132(a). 451. Moreover, Title 18
applies to American Samoa, an unincorporated territory of
the United States. See 18 U.S.C. § 5 (defining
“United States” in Title 18 as including “all places and
waters, continental or insular, subject to the jurisdiction
of the United States, except the Canal Zone”); see also
United States v. Standard Oil Co., 404 U.S. 558, 559-60
(1972) (per curiam) (holding that American Samoa is a
“[t]erritory of the United States” within the meaning of
§ 3 of the Sherman Act). Accordingly, the District
Court has jurisdiction to try individuals for federal
crimes committed in American Samoa.

Lee’s contention that § 3231 does not vest the
District Court with jurisdiction in this case because the
High Court of American Samoa (“High Court”) holds exclusive
jurisdiction to try individuals for federal crimes in
American Samoa is not persuasive. Lee’s argument consists
of two parts. First, Lee contends Congress granted the High
Court jurisdiction to enforce American Samoa law pursuant to
a chain of delegations that starts with 48 U.S.C. §
1661. Second, Lee claims that the High Court’s
jurisdiction, developed through executive delegations,
trumps federal district court jurisdiction in American

[2] Lee’s first argument is correct. In relation to
American Samoa, Congress directed as follows:

Until Congress shall provide for the government of such
islands, all civil, judicial, and military powers shall be
vested in such person or persons and shall be exercised in
such manner as the President of the United States shall
direct; and the President shall have power to remove said
officers and fill the vacancies so occasioned.

48 U.S.C. § 1661(c). The President, in turn,
delegated this authority to the Secretary of the Interior.
Exec. Order No. 10,264, 16 Fed. Reg. 6,417 (June 29, 1951).
Exercising the authority delegated to him, the Secretary of
the Interior approved the Constitution of American Samoa,
which provides, “The judicial power shall be vested in the
High Court, the District Courts, and such other courts as
may from time to time be created by law.” Am. Samoa Const.
art. III, § 1. This Constitution grants the American
Samoa legislature power to enact and enforce laws. Id. art.
II, §§ 1, 9. Relevant here, the American Samoa
Code provides: “Criminal cases shall be prosecuted and
tried only in a court having territorial jurisdiction over
the place where the crime was committed.” Am. Samoa Code
Ann. § 3.0103(c). Thus, the High Court has
jurisdiction to hear criminal cases involving charges
brought under American Samoa law.

[3] The second prong of Lee’s argument — that the
High Court has exclusive jurisdiction to try individuals
for federal crimes in Title 18 — lacks merit for two
reasons. First, under American Samoa’s current legal
system, the High Court cannot try an individual for
violations of Title 18. Lee’s argument to the contrary
rests entirely on § 1.0201 of the America Samoa
Code, which provides that “the parts of the Constitution of
the United States of America and the laws of the United
States of America [that], by their own force, are in effect
in American Samoa” have “the effect of law in American
Samoa.” According to Lee, § 1.0201 “incorporated”
Title 18 into American Samoa law, thus allowing the High
Court to try individuals under Title 18. However, §
1.0201 cannot reasonably be interpreted to incorporate
Title 18 into American Samoa law. For one thing, the
statute does not even discuss incorporation. In addition,
the High Court appears never to have tried a defendant for
a violation of Title 18. Thus, the plain language of
§ 1.0201, coupled with the fact that the High Court
appears never to have tried an individual under Title 18,
strongly demonstrate a lack of incorporation.

[4] Second, even assuming arguendo that Title 18 had been
incorporated into American Samoa law — making a
violation of Title 18 a violation of American Samoa law
— federal district courts would not be deprived of
jurisdiction. Simply put, any incorporation of Title 18 into
the American Samoa Code cannot reasonably be interpreted to
trump 18 U.S.C. § 3231. In § 3231, Congress
gave United States district courts jurisdiction over
federal crimes. Congress did not create a United States
District Court in American Samoa. See 28 U.S.C.
§§ 81-131 (listing all judicial “districts,”
but not including American Samoa). If Congress wanted to
establish a court in American Samoa with the power to try
individuals for crimes committed under federal law, it would
have either (1) created a federal district court in
American Samoa, or (2) explicitly directed an existing
American Samoa court to assert jurisdiction over a
particular criminal matter. Indeed, in the past, when
Congress has intended the High Court to exercise
jurisdiction over a criminal matter, it has explicitly
granted such authority. See, e.g., 7 U.S.C. § 87f(h)
(“The United States district courts, the District Court of
Guam, the District Court of the Virgin Islands, [and] the
highest court of American Samoa . . . shall have
jurisdiction in cases arising under this chapter.”); 7
U.S.C. § 136(i) (defining “district court” to
include “the highest court of American Samoa” for purposes
of an “environmental pesticide control” statute); 7 U.S.C.
§ 2146(c) (granting “the highest court of American
Samoa” jurisdiction over cases involving the
“transportation, sale, and handling of certain animals”); 7
U.S.C. § 8314(c)(1) (animal health protection); 15
U.S.C. § 1825(d)(6) (protection of horses); 21 U.S.C.
§ 467c (poultry inspection); 21 U.S.C. § 674
(meat inspection); 49 U.S.C. § 30102(a)(11) (motor
vehicle safety). Even the High Court itself has acknowledged
that it “should hesitate to increase its jurisdiction
without explicit directive from Congress.” Star-Kist Samoa,
Inc. v. The M/V Conquest, 3 Am. Samoa 2d. 25, 28 (1986).

[5] This is not to say that the American Samoa legislature
cannot incorporate Title 18 into American Samoa law through
explicit legislation. However, even if this were to occur,
American Samoa courts would not have exclusive
jurisdiction. In such a case, federal district courts and
American Samoa courts would have concurrent jurisdiction
— meaning American Samoa courts could try the
individual under American Samoa law that incorporated Title
18, and federal district courts could try the individual
under federal law. The Supreme Court’s decision in Wynne v.
United States, 217 U.S. 234 (1910), supports this result.
There, the Court denied the defendant’s argument that the
territorial courts of Hawaii were vested with exclusive
jurisdiction to try him for murder committed in the harbor
of Honolulu. Id. at 245. The Court wrote:

If it be true, as claimed, that the territorial courts
exercise jurisdiction over homicides in the harbor of
Honolulu, under and by virtue of the laws of Hawaii . . .
, it only establishes that there may be concurrent
jurisdiction in respect of certain crimes when committed
in certain places, and is far from establishing that the
courts of the Union have been deprived of a jurisdiction
which they have at all times claimed and exercised over
certain offenses when committed . . . out of the
jurisdiction of any particular state.

Id. Thus, according to the Court, if a federal district
court has jurisdiction, a territorial court cannot claim
exclusive jurisdiction over the case. More recently, in
King v. Morton, the United States Court of Appeals for the
District of Columbia Circuit expressed the same view. 520
F.2d 1140, 1144 (D.C. Cir. 1975) (“[T]hat Samoan courts are
competent to adjudicate claims of Samoan litigants arising
under the laws of the United States does not prevent
district courts from hearing such claims when jurisdiction
is otherwise proper.”).

B. Venue

[6] The United States Constitution provides that “[t]he
Trial of all Crimes . . . shall[,] . . . when not committed
within any State, . . . be at such Place or Places as the
Congress may by Law have directed.” U.S. Const. art. III,
§ 2, cl. 3 (emphasis added). Congress directed as
follows in 18 U.S.C. § 3238, entitled “Offenses not
committed in any district”:

The trial of all offenses begun or committed upon the
high seas, or elsewhere out of the jurisdiction of any
particular State or district, shall be in the district in
which the offender, or any one of two or more joint
offenders, is arrested or is first brought

(emphasis added). Here, the government arrested Lee in
American Samoa, and “first brought” him to Hawaii. Thus,
the issue is whether American Samoa constitutes a
“district” under § 3238. If American Samoa is a
“district,” then § 3238 does not apply, and venue is
improper in the District of Hawaii.

This is an issue of first impression. We have held that the
term “district” includes territories containing “district
courts” pursuant to an act of Congress. United States v.
Santos, 623 F.2d 75, 77 (9th Cir. 1980) (holding that an
offender arrested in Guam must be prosecuted in the United
States District Court for the District of Guam because
§ 3238 does not apply in cases involving territories
with a district court). However, this holding did not
extend to territories lacking a “district court,” like
American Samoa.

Lee’s primary argument is that such extension is warranted
under Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807). In
Bollman, the Court held that defendants arrested in the
“territory of New Orleans” could not be prosecuted in the
District of Columbia under a former version of §
3238. Id. at 135-36. The Court indicated that § 3238
did not make the District of Columbia a proper venue
because “a tribunal for the trial of the offence [sic] . .
. had been provided by [C]ongress; and at the place where
the prisoners were seized . . . , there existed such a
tribunal.” Id. at 136. Accordingly, Lee asserts §
3238 does not apply in this case because “a tribunal,” the
High Court, has been “provided by Congress” in American
Samoa, the place where Lee was “seized.” See id.

Lee’s argument is unavailing. Prior to Bollman, Congress
had explicitly established a United States District Court
for the territory of New Orleans. Act of March 26, 1804,
ch. 38, 2 Stat. 285 (“There shall be established in the
[territory of New Orleans] a district court. . . .”). Thus,
when the Court stated that venue was improper in the
District of Columbia under § 3238, the existing
tribunal it was referring to was the
Congressionally-established district court. Here, Congress
never established a federal district court in American
Samoa. If it had, it is undisputable that our holding in
Santos would preclude the application of § 3238 to
this case. See Santos, 623 F.2d at 77. Therefore, Bollman
is not applicable here.

[7] Instead, a plain reading of the United States Code
reveals that American Samoa is not a “district” for the
purposes of § 3238. Although the term “district” is
not defined in § 3238, Title 28 establishes the
federal judicial “districts.” See 28 U.S.C. §§
81-131. American Samoa is not enumerated as a judicial
“district” among those listed in Title 28. Thus, it follows
that American Samoa is not a “district” pursuant to
§ 3238. Lee’s argument that the term “district”
generically refers to geographical regions, rather than
judicial districts, not only defies a plain reading of
Titles 18 and 28, but also Supreme Court precedent. In
Jones v. United States, 137 U.S. 202 (1890), the Court
allowed a murder case to be tried in the “circuit court of
the United States for the district of Maryland,” even
though it occurred on the Caribbean island of Navassa, a
territory of the United States, because the offense
occurred “out of the jurisdiction of any particular state or
district.” Id. at 211, 224. In doing so, the Court
indicated that former § 3238 applied when the
offense committed occurred “not within any judicial
district.” Id. at 211 (emphasis added). This comment reveals
that the Court interpreted the term “district” to mean
“judicial district,” not a geographical region. Because
American Samoa is not within any judicial district, venue
was proper in the District of Hawaii in accordance with
§ 3238.


[8] We conclude that Lee was properly tried and convicted
in the Hawaii District Court for committing federal crimes
in American Samoa because (1) § 3231 vested the
District Court with jurisdiction, and (2) venue was proper
in the District of Hawaii under § 3238. This holding
is consistent with the plain language of the applicable
statutes, and Supreme Court precedent. Lee’s conviction and
sentence stands.[fn2]


[fn1] Section 3238 reads: “The trial of all offenses begun
or committed upon the high seas, or elsewhere out of the
jurisdiction of any particular State or district, shall be
in the district in which the offender . . . is arrested or
is first brought. . . .”

[fn2] We also affirm the District Court’s holding on the
merits. Lee’s claims are unavailing. The prosecutor’s
misconduct did not constitute reversible error, the court
did not violate due process by refusing to instruct the
jury on American Samoa law, and Lee’s consecutive sentences
were properly imposed.