As our economy has become more global in scope, so have the investigation and prosecution of white-collar crimes. Hardly a week goes by without reports of the Department of Justice or Securities and Exchange Commission taking action based on conduct that occurred beyond our borders—the charging of a British trader for allegedly causing the 2010 “flash crash” in U.S. securities markets1 and the indictment of FIFA officials for widespread corruption2 being two of the more recent high-profile instances.
The prosecution of individuals for actions abroad gives rise to two threshold issues—the “extraterritorial” application of federal criminal law and “sufficient nexus” between the defendant and the United States. The two issues touch on similar concerns but are distinct, as thoughtfully explained recently by Southern District of New York U.S. Magistrate Judge James C. Francis IV, in United States v. Hayes.3
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