Justice ALITO delivered the opinion of the Court.

The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery. 18 U.S.C. § 1951(a). The Act defines "commerce" broadly as interstate commerce "and all other commerce over which the United States has jurisdiction." § 1951(b)(3). This case requires us to decide what the Government must prove to satisfy the Hobbs Act's commerce element when a defendant commits a robbery that targets a marijuana dealer's drugs or drug proceeds.

The answer to this question is straightforward and dictated by our precedent. We held in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), that the Commerce Clause gives Congress authority to regulate the national market for marijuana, including the authority to proscribe the purely intrastate production, possession, and sale of this controlled substance. Because Congress may regulate these intrastate activities based on their aggregate effect on interstate commerce, it follows that Congress may also regulate intrastate drug theft . And since the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce "over which the United States has jurisdiction," § 1951(b)(3), the prosecution in a Hobbs Act robbery case satisfies the Act's commerce element if it shows that *2078the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. By targeting a drug dealer in this way, a robber necessarily affects or attempts to affect commerce over which the United States has jurisdiction.

In this case, petitioner Anthony Taylor was convicted on two Hobbs Act counts based on proof that he attempted to rob marijuana dealers of their drugs and drug money. We hold that this evidence was sufficient to satisfy the Act's commerce element.

I

Beginning as early as 2009, an outlaw gang called the "Southwest Goonz" committed a series of home invasion robberies targeting drug dealers in the area of Roanoke, Virginia. 754 F.3d 217, 220 (C.A.4 2014). For obvious reasons, drug dealers are more likely than ordinary citizens to keep large quantities of cash and illegal drugs in their homes and are less likely to report robberies to the police. For participating in two such home invasions, Taylor was convicted of two counts of Hobbs Act robbery, in violation of § 1951(a), and one count of using a firearm in furtherance of a crime of violence, in violation of § 924(c).

The first attempted drug robbery for which Taylor was convicted occurred in August 2009. Id ., at 220. Taylor and others targeted the home of Josh Whorley, having obtained information that Whorley dealt "exotic and high grade" marijuana. Ibid. "The robbers expected to find both drugs and money" in Whorley's home. Ibid. Taylor and the others broke into the home, searched it, and assaulted Whorley and his girlfriend. They demanded to be told the location of money and drugs but, not locating any, left with only jewelry, $40, two cell phones, and a marijuana cigarette. Ibid.

The second attempted drug robbery occurred two months later in October 2009 at the home of William Lynch. Ibid. A source informed the leader of the gang that, on a prior occasion, the source had robbed Lynch of 20 pounds of marijuana in front of Lynch's home. The gang also received information that Lynch continued to deal drugs. Taylor and others broke into Lynch's home, held his wife and young children at gunpoint, assaulted his wife, and demanded to know the location of his drugs and money. Again largely unsuccessful, the robbers made off with only a cell phone. Id., at 221.

For his participation in these two home invasions, Taylor was indicted under the Hobbs Act on two counts of affecting commerce or attempting to do so through robbery. App. 11a-13a. His first trial resulted in a hung jury. On retrial, at the urging of the Government, the District Court precluded Taylor from introducing evidence that the drug dealers he targeted might be dealing in only locally grown marijuana. Id., at 60a; see 754 F.3d, at 221. During the second trial, Taylor twice moved for a judgment of acquittal on the ground that the prosecution had failed to meet its burden on the commerce element, Tr. 445-447, 532-533; see 754 F.3d, at 221, but the District Court denied those motions, holding that the proof that Taylor attempted to rob drug dealers was sufficient as a matter of law to satisfy that element. Tr. 446, 532-533. The jury found Taylor guilty on both of the Hobbs Act counts and one of the firearms counts. App. 67a-69a.

On appeal, Taylor challenged the sufficiency of the evidence to prove the commerce element of the Hobbs Act, but the Fourth Circuit affirmed. "Because drug dealing in the aggregate necessarily affects interstate commerce," the court reasoned, "the government was simply required *2079to prove that Taylor depleted or attempted to deplete the assets of such an operation." 754 F.3d, at 224.

We granted certiorari to resolve a conflict in the Circuits regarding the demands of the Hobbs Act's commerce element in cases involving the theft of drugs and drug proceeds from drug dealers. 576 U.S. ----, 136 S.Ct. 26, 192 L.Ed.2d 998 (2015).

II

A

The Hobbs Act provides in relevant part as follows:

"Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery ... or attempts or conspires so to do ... shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a).

The Act then defines the term "commerce" to mean

"commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction." § 1951(b)(3).

The language of the Hobbs Act is unmistakably broad. It reaches any obstruction, delay, or other effect on commerce, even if small, and the Act's definition of commerce encompasses "all ... commerce over which the United States has jurisdiction." Ibid. We have noted the sweep of the Act in past cases. United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978) ("These words do not lend themselves to restrictive interpretation"); Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (The Hobbs Act "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence").

B

To determine how far this commerce element extends-and what the Government must prove to meet it-we look to our Commerce Clause cases. We have said that there are three categories of activity that Congress may regulate under its commerce power: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce." United States v. Lopez, 514 U.S. 549, 558-559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We have held that activities in this third category-those that "substantially affect" commerce-may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal. See Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942) ("[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce").

While this final category is broad, "thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is *2080economic in nature." United States v. Morrison, 529 U.S. 598, 613, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

In this case, the activity at issue, the sale of marijuana, is unquestionably an economic activity. It is, to be sure, a form of business that is illegal under federal law and the laws of most States. But there can be no question that marijuana trafficking is a moneymaking endeavor-and a potentially lucrative one at that.

In Raich, the Court addressed Congress's authority to regulate the marijuana market. The Court reaffirmed "Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." 545 U.S., at 17, 125 S.Ct. 2195. The production, possession, and distribution of controlled substances constitute a "class of activities" that in the aggregate substantially affect interstate commerce, and therefore, the Court held, Congress possesses the authority to regulate (and to criminalize) the production, possession, and distribution of controlled substances even when those activities occur entirely within the boundaries of a single State. Any other outcome, we warned, would leave a gaping enforcement hole in Congress's regulatory scheme. Id., at 22, 125 S.Ct. 2195.

The case now before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act. The Hobbs Act criminalizes robberies affecting "commerce over which the United States has jurisdiction." § 1951(b)(3). Under Raich, the market for marijuana, including its intrastate aspects, is "commerce over which the United States has jurisdiction." It therefore follows as a simple matter of logic that a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.

C

Rejecting this logic, Taylor takes the position that the robbery or attempted robbery of a drug dealer's inventory violates the Hobbs Act only if the Government proves something more. This argument rests in part on the fact that Raich concerned the Controlled Substances Act (CSA), the criminal provisions of which lack a jurisdictional element. See 21 U.S.C. §§ 841(a), 844. The Hobbs Act, by contrast, contains such an element-namely, the conduct criminalized must affect or attempt to affect commerce in some way or degree. See 18 U.S.C. § 1951(a). Therefore, Taylor reasons, the prosecution must prove beyond a reasonable doubt either (1) that the particular drugs in question originated or were destined for sale out of State or (2) that the particular drug dealer targeted in the robbery operated an interstate business. See Brief for Petitioner 25-27; Reply Brief 8. The Second and Seventh Circuits have adopted this same argument. See United States v. Needham, 604 F.3d 673, 681 (C.A.2 2010) ; United States v. Peterson, 236 F.3d 848, 855 (C.A.7 2001).

This argument is flawed. It confuses the standard of proof with the meaning of the element that must be proved. There is no question that the Government in a Hobbs Act prosecution must prove beyond a reasonable doubt that the defendant engaged in conduct that satisfies the Act's commerce element, but the meaning of that element is a question of law. And, as noted, Raich established that the purely intrastate production and sale of marijuana is commerce over which the Federal Government has jurisdiction. Therefore, if the Government proves beyond a reasonable *2081doubt that a robber targeted a marijuana dealer's drugs or illegal proceeds, the Government has proved beyond a reasonable doubt that commerce over which the United States has jurisdiction was affected.

The only way to escape that conclusion would be to hold that the Hobbs Act does not exercise the full measure of Congress's commerce power. But we reached the opposite conclusion more than 50 years ago, see Stirone, 361 U.S., at 215, 80 S.Ct. 270 and it is not easy to see how the expansive language of the Act could be interpreted in any other way.

This conclusion does not make the commerce provision of the Hobbs Act superfluous. That statute, unlike the criminal provisions of the CSA, applies to forms of conduct that, even in the aggregate, may not substantially affect commerce. The Act's commerce element ensures that applications of the Act do not exceed Congress's authority. But in a case like this one, where the target of a robbery is a drug dealer, proof that the defendant's conduct in and of itself affected or threatened commerce is not needed. All that is needed is proof that the defendant's conduct fell within a category of conduct that, in the aggregate, had the requisite effect.

D

Contrary to the dissent, see post, at 2087 - 2088 (opinion of THOMAS, J.), today's holding merely applies-it in no way expands-Raich 's interpretation of the scope of Congress's power under the Commerce Clause. The dissent resists the substantial-effects approach and the aggregation principle on which Raich is based, see post, at 2087 - 2088. But we have not been asked to reconsider Raich . So our decision in Raich controls the outcome here. As long as Congress may regulate the purely intrastate possession and sale of illegal drugs, Congress may criminalize the theft or attempted theft of those same drugs.

We reiterate what this means. In order to obtain a conviction under the Hobbs Act for the robbery or attempted robbery of a drug dealer, the Government need not show that the drugs that a defendant stole or attempted to steal either traveled or were destined for transport across state lines. Rather, to satisfy the Act's commerce element, it is enough that a defendant knowingly stole or attempted to steal drugs or drug proceeds, for, as a matter of law, the market for illegal drugs is "commerce over which the United States has jurisdiction." And it makes no difference under our cases that any actual or threatened effect on commerce in a particular case is minimal. See Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) ("Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class" (emphasis deleted)).

E

In the present case, the Government met its burden by introducing evidence that Taylor's gang intentionally targeted drug dealers to obtain drugs and drug proceeds. One of the victims had been robbed of substantial quantities of drugs at his residence in the past, and the other was thought to possess high-grade marijuana. The robbers also made explicit statements in the course of the robberies revealing that they believed that the victims possessed drugs and drug proceeds. Tr. 359 (asking Lynch "where the weed at"); id ., at 93 (asking Whorley "where the money was at, where the weed was at"); id ., at 212-213 (asking Whorley, "Where is your money and where is your weed at?"). Both robberies were committed with the *2082express intent to obtain illegal drugs and the proceeds from the sale of illegal drugs. Such proof is sufficient to meet the commerce element of the Hobbs Act.

Our holding today is limited to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds. We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted. See, e.g., Stirone, supra, at 215, 80 S.Ct. 270 (Government offered evidence that the defendant attempted to extort a concrete business that actually obtained supplies and materials from out of State).

* * *

The judgment of the Fourth Circuit is affirmed.

It is so ordered.

Justice THOMAS, dissenting.

The Hobbs Act makes it a federal crime to commit a robbery that "affects" "commerce over which the United States has jurisdiction." 18 U.S.C. §§ 1951(a), 1951(b)(3). Under the Court's decision today, the Government can obtain a Hobbs Act conviction without proving that the defendant's robbery in fact affected interstate commerce-or any commerce. See ante, at 2079 - 2082. The Court's holding creates serious constitutional problems and extends our already expansive, flawed commerce-power precedents. I would construe the Hobbs Act in accordance with constitutional limits and hold that the Act punishes a robbery only when the Government proves that the robbery itself affected interstate commerce.

I

In making it a federal crime to commit a robbery that "affects commerce," § 1951(a), the Hobbs Act invokes the full reach of Congress' commerce power: The Act defines "commerce" to embrace "all ... commerce over which the United States has jurisdiction." § 1951(b)(3). To determine the Hobbs Act's reach, I start by examining the limitations on Congress' authority to punish robbery under its commerce power. In light of those limitations and in accordance with the Hobbs Act's text, I would hold that the Government in a Hobbs Act case may obtain a conviction for robbery only if it proves, beyond a reasonable doubt, that the defendant's robbery itself affected interstate commerce. The Government may not obtain a conviction by proving only that the defendant's robbery affected intrastate commerce or other intrastate activity.

A

Congress possesses only limited authority to prohibit and punish robbery. "The Constitution creates a Federal Government of enumerated powers." United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) ; see Art. I, § 8; Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803) (Marshall, C.J.) ("The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written"). As with its powers generally, Congress has only limited authority over crime. The Government possesses broad general authority in territories and federal enclaves. See Art. I, § 8, cl. 17 (conferring power of "exclusive Legislation" over the District of Columbia); Art. IV, § 3, cl. 2 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"). But its power over crimes committed in the States is very different. The Constitution expressly delegates to Congress authority over only four specific crimes: counterfeiting *2083securities and coin of the United States, Art. I, § 8, cl. 6; piracies and felonies committed on the high seas, Art. I, § 8, cl. 10; offenses against the law of nations, ibid. ; and treason, Art. III, § 3, cl. 2. Given these limited grants of federal power, it is "clea[r] that Congress cannot punish felonies generally." Cohens v. Virginia, 6 Wheat. 264, 428, 5 L.Ed. 257 (1821) (Marshall, C. J.). Congress has "no general right to punish murder committed within any of the States," for example, and no general right to punish the many crimes that fall outside of Congress' express grants of criminal authority. Id., at 426. "The Constitution," in short, "withhold[s] from Congress a plenary police power." Lopez, supra, at 566, 115 S.Ct. 1624 ; see Art. I, § 8; Amdt. 10.

Beyond the four express grants of federal criminal authority, then, Congress may validly enact criminal laws only to the extent that doing so is "necessary and proper for carrying into Execution" its enumerated powers or other powers that the Constitution vests in the Federal Government. Art. I, § 8, cl. 18. As Chief Justice Marshall explained, "the [federal] government may, legitimately, punish any violation of its laws" as a necessary and proper means for carrying into execution Congress' enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 416, 4 L.Ed. 579 (1819) ; see id., at 416-421. But if these limitations are not respected, Congress will accumulate the general police power that the Constitution withholds.

The scope of Congress' power to punish robbery in the Hobbs Act-or in any federal statute-must be assessed in light of these principles. The Commerce Clause-the constitutional provision that the Hobbs Act most clearly invokes-does not authorize Congress to punish robbery. That Clause authorizes Congress to regulate "Commerce ... among the several States." Art. I, § 8, cl. 3. Robbery is not "Commerce" under that Clause. At the founding, "commerce" "consisted of selling, buying, and bartering, as well as transporting for these purposes." Lopez, supra, at 585, 115 S.Ct. 1624 (THOMAS, J., concurring). The Commerce Clause, as originally understood, thus "empowers Congress to regulate the buying and selling of goods and services trafficked across state lines." Gonzales v. Raich, 545 U.S. 1, 58, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (THOMAS, J., dissenting). Robbery is not buying, it is not selling, and it cannot plausibly be described as a commercial transaction ("trade or exchange for value"). Id., at 59, 125 S.Ct. 2195.

Because Congress has no freestanding power to punish robbery and because robbery is not itself "Commerce," Congress may prohibit and punish robbery only to the extent that doing so is "necessary and proper for carrying into Execution" Congress' power to regulate commerce. Art. I, § 8, cl. 18. To be "necessary," Congress' prohibition of robbery must be "plainly adapted" to regulating interstate commerce. McCulloch, supra, at 421. This means that Congress' robbery prohibition must have an "obvious, simple, and direct relation" with the regulation of interstate commerce. Raich, supra, at 61, 125 S.Ct. 2195 (THOMAS, J., dissenting) (internal quotation marks omitted). And for Congress' robbery prohibition to be "proper," it cannot be "prohibited" by the Constitution or inconsistent with its "letter and spirit." McCulloch, supra, at 421; see United States v. Comstock, 560 U.S. 126, 161, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010) (THOMAS, J., dissenting) (same).

B

With those principles in mind, I turn to the Hobbs Act. The Act provides,

*2084"Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be [punished]." 18 U.S.C. § 1951(a).

In keeping with Congress' authority to regulate certain commerce-but not robbery generally-the central feature of a Hobbs Act crime is an effect on commerce. The Act begins by focusing on commerce and then carefully describes the required relationship between the proscribed conduct and commerce: The Act uses active verbs-"obstructs," "delays," "affects"-to describe how a robbery must relate to commerce, making clear that a defendant's robbery must affect commerce.

The Act's reach depends on the meaning of "commerce," which the Act defines as

"commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction." § 1951(b)(3).

As noted above, this provision is comprehensive and appears to invoke all of Congress' commerce power. The first clause of the definition invokes Congress' broad police power, including power over internal commerce, in the District of Columbia and the Territories. See Art. I, § 8, cl. 17 (District of Columbia); Art. IV, § 3, cl. 2 (territories). The second and third clauses most clearly invoke those broad powers as well as Congress' power "[t]o regulate Commerce ... among the several States." Art. I, § 8, cl. 3. The final clause invokes all federal commerce power not covered in the previous clauses. It invokes (to the extent that the second and third clauses do not already do so) Congress' authority "[t]o regulate Commerce with foreign Nations ... and with the Indian Tribes." Ibid.

The critical question in this case is whether the commerce definition's final clause extends further, to some intrastate activity. Given the limitations imposed by the Constitution, I would construe this clause not to reach such activity.

As explained above, for the Hobbs Act to constitutionally prohibit robberies that interfere with intrastate activity, that prohibition would need to be "necessary and proper for carrying into Execution" Congress' power to regulate interstate commerce, Art. I, § 8, cls. 3, 18. See Part I-A, supra . Punishing a local robbery-one that affects only intrastate commerce or other intrastate activity-cannot satisfy that standard. Punishing a local robbery does not bear a "direct relation" to the regulation of interstate commerce, so it would not be "necessary." Raich, 545 U.S., at 61, 125 S.Ct. 2195 (THOMAS, J., dissenting) (internal quotation marks omitted). Nor would punishing such a robbery be "proper." Permitting Congress to criminalize such robberies would confer on Congress a general police power over the Nation-even though the Constitution confers no such power on Congress. Lopez, 514 U.S., at 566, 115 S.Ct. 1624 ; see Raich, 545 U.S., at 65, 125 S.Ct. 2195 (THOMAS, J., dissenting). Allowing the Federal Government to reach a simple home robbery, for example, would "encroac[h] on States' traditional police powers to define the criminal law and to protect ... their citizens." Id., at 66, 125 S.Ct. 2195. This would "subvert basic principles *2085of federalism and dual sovereignty," id., at 65, 125 S.Ct. 2195 and would be inconsistent with the "letter and spirit" of the Constitution, McCulloch, 4 Wheat., at 421.

Thus, the Hobbs Act reaches a local robbery only when that particular robbery "obstructs, delays, or affects" interstate commerce. §§ 1951(a), 1951(b)(3). So construed, the Hobbs Act validly punishes robbery. Congress' power "[t]o regulate Commerce ... among the several States," Art. I, § 8, cl. 3, "would lack force or practical effect if Congress lacked the authority to enact criminal laws" prohibiting interference with interstate commerce or the movement of articles or goods in interstate commerce, Comstock, supra, at 169, 130 S.Ct. 1949 (THOMAS, J., dissenting). The Hobbs Act's prohibition on such interferences thus helps to "carr[y] into Execution" Congress' enumerated power to regulate interstate commerce. Art. I, § 8, cls. 3, 18. A prohibition on such interference by robbery bears an "obvious, simple, and direct relation" to regulating interstate commerce: it allows commerce to flow between States unobstructed. Raich, supra, at 61, 125 S.Ct. 2195 (THOMAS, J., dissenting) (internal quotation marks omitted). It is therefore "necessary." And such a prohibition accords with the limited nature of the powers that the Constitution confers on Congress, by adhering to the categories of commerce that the Constitution authorizes Congress to regulate and by keeping Congress from exercising a general police power. See, e.g., Lopez, supra, at 566, 115 S.Ct. 1624. It is accordingly "proper" to that extent. If construed to reach a robbery that does not affect interstate commerce, however, the Hobbs Act exceeds Congress' authority because it is no longer "necessary and proper" to the execution of Congress' power "[t]o regulate Commerce ... among the several States," Art. I, § 8, cls. 3, 18. See Part I-A, supra .

Robberies that might satisfy these principles would be those that affect the channels of interstate commerce or instrumentalities of interstate commerce. A robbery that forces an interstate freeway to shut down thus may form the basis for a valid Hobbs Act conviction. So too might a robbery of a truckdriver who is in the course of transporting commercial goods across state lines. But if the Government cannot prove that a robbery in a State affected interstate commerce, then the robbery is not punishable under the Hobbs Act. Sweeping in robberies that do not affect interstate commerce comes too close to conferring on Congress a general police power over the Nation.

Given the Hobbs Act's text and relevant constitutional principles, the Government in a Hobbs Act robbery case (at least one that involves only intrastate robbery) must prove, beyond a reasonable doubt, that the defendant's robbery itself affected interstate commerce. See Alleyne v. United States, 570 U.S. ----, ----, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013) (opinion of THOMAS, J.) (the Sixth Amendment right to a trial " 'by an impartial jury,' " in conjunction with our due process precedents, "requires that each element of a crime be proved to the jury beyond a reasonable doubt"); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (requiring reasonable-doubt showing on each element of a crime).

C

On this interpretation of the Hobbs Act, petitioner David Anthony Taylor's convictions cannot stand. The Government cites no evidence that Taylor actually obstructed, delayed, or affected interstate commerce when he committed the two intrastate robberies here. The Government did not prove that Taylor affected any channel *2086of interstate commerce, instrumentality of commerce, or person or thing in interstate commerce. See Lopez, supra, at 558-559, 115 S.Ct. 1624 (describing these core areas of commerce regulation). Nor did the Government prove that Taylor affected an actual commercial transaction-let alone an interstate commercial transaction. At most, the Government proved instead that Taylor robbed two drug dealers in their homes in Virginia; that the marijuana that Taylor expected to (but did not) find in these robberies might possibly at some point have crossed state lines; and that Taylor expected to find large amounts of marijuana. See Brief for United States 35-37; Tr. 63-69, 354, 420-421. Under the principles set forth above, that is not sufficient to bring Taylor's robberies within the Hobbs Act's reach. We should reverse Taylor's Hobbs Act convictions.

II

Upholding Taylor's convictions, the Court reads the Hobbs Act differently. See ante, at 2079 - 2082. The Court concludes that the "commerce over which the United States has jurisdiction," § 1951(b)(3), includes intrastate activity. See ante, at 2079 - 2080. Under our modern precedents, as the Court notes, Congress may regulate not just the channels of interstate commerce, instrumentalities of interstate commerce, and persons or things moving in interstate commerce, but may also regulate "those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce." Lopez, supra, at 558-559, 115 S.Ct. 1624 ; see Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942) ("[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce"). The substantial-effects approach is broad, in part because of its "aggregation principle": Congress can regulate an activity-even an intrastate, noncommercial activity-if that activity falls within a "class of activities" that, "as a whole," "substantially affects interstate commerce," even if "any specific activity within the class" has no such effects "when considered in isolation." Lopez, 514 U.S., at 600, 115 S.Ct. 1624 (THOMAS, J., concurring) (emphasis deleted). According to the Court, the final clause of the Hobbs Act's definition of commerce embraces this category of activities that, in the aggregate, substantially affect commerce. See ante, at 2079 - 2080. Any robbery that targets a marijuana dealer, the Court then holds, affects the type of intrastate activity that Congress may regulate under its commerce power. See ante, at 2079 - 2082. For at least three reasons, the Court's holding is in error.

A

Although our modern precedents (such as Wickard ) embrace the substantial-effects approach, applying that approach to the Hobbs Act is tantamount to abandoning any limits on Congress' commerce power-even the slight limits recognized by our expansive modern precedents. As I have explained, if the Hobbs Act is construed to punish a robbery that by itself affects only intrastate activity, then the Act defies the constitutional design. See Part I, supra .

That is true even under our modern precedents. Even those precedents emphasize that "[t]he Constitution requires a distinction between what is truly national and what is truly local." United States v. Morrison, 529 U.S. 598, 617-618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) ; see Lopez, 514 U.S., at 567-568, 115 S.Ct. 1624. The substantial-effects approach is at war with *2087that principle. To avoid giving Congress a general police power, there must be some limit to what Congress can regulate. But the substantial-effects approach's aggregation principle "has no stopping point." Id., at 600, 115 S.Ct. 1624 (THOMAS, J., concurring). "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Ibid. Under the substantial-effects approach, Congress could, under its commerce power, regulate any robbery: In the aggregate, any type of robbery could be deemed to substantially affect interstate commerce.

By applying the substantial-effects test to the criminal prohibition before us, the Court effectively gives Congress a police power. That is why the Court cannot identify any true limit on its understanding of the commerce power. Although the Court maintains that its holding "is limited to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds," ante, at 2082, its reasoning allows for unbounded regulation. Given that the Hobbs Act can be read in a way that does not give Congress a general police power, see Part I, supra, we should not construe the statute as the Court does today.

B

Applying the substantial-effects approach is especially unsound here because it effectively relieves the Government of its central burden in a criminal case-the burden to prove every element beyond a reasonable doubt-and because the Court's holding does not follow from even our broad precedents. The Court reasons that, under Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 -a case that rests on substantial-effects reasoning, see id., at 17-22, 125 S.Ct. 2195 -"the market for marijuana, including its intrastate aspects, is 'commerce over which the United States has jurisdiction.' " Ante, at 2080 (quoting § 1951(b)(3) ). Therefore, "a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction." Ante, at 2080. As the Court later states, "[W]here the target of a robbery is a drug dealer, proof that the defendant's conduct in and of itself affected or threatened commerce is not needed. All that is needed is proof that the defendant's conduct fell within a category of conduct that, in the aggregate, had the requisite effect." Ante, at 2081.

Raich is too thin a reed to support the Court's holding. Raich upheld the federal Controlled Substances Act's regulation of "the intrastate manufacture and possession of marijuana" for personal medical use, 545 U.S., at 15, 125 S.Ct. 2195 on the view that Congress "had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana" would undercut federal regulation of the broader interstate marijuana market, id., at 22, 125 S.Ct. 2195. The Court "stress[ed]" that it did not "need [to] determine whether [local cultivation and possession of marijuana], taken in the aggregate, substantially affect[ed] interstate commerce in fact, but only whether a 'rational basis' exist[ed] for so concluding." Ibid.

As an initial matter, Raich did not, as the Court suggests, hold that "the market for marijuana, including its intrastate aspects, is 'commerce over which the United States has jurisdiction.' " Ante, at 2080 (emphasis added). Raich held at most that the market for marijuana comprises activities that may substantially affect commerce over which the United States has jurisdiction. See, e.g., *2088Raich, supra, at 21-22, 125 S.Ct. 2195. Those activities are not necessarily "commerce," so Raich 's holding does not establish what the Hobbs Act's text requires.

But even if Raich established that the intrastate aspects of the marijuana market are "commerce over which the United States has jurisdiction," § 1951(b)(3), Raich still would not establish the further point that the Court needs for its conclusion. Specifically, Raich would not establish that a robbery affecting a drug dealer establishes, beyond a reasonable doubt, that the robber actually "obstructs, delays, or affects" the marijuana market. § 1951(a). Raich did not hold that any activity relating to the marijuana market in fact affects commerce. Raich instead disclaimed the need to "determine whether" activities relating to the marijuana market-even "taken in the aggregate"-"substantially affect interstate commerce in fact." 545 U.S., at 22, 125 S.Ct. 2195. Raich decided only that Congress had a rational basis-a merely " 'conceivable' " basis, FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) -for thinking that it needed to regulate that activity as part of an effective regulatory regime. 545 U.S., at 22, 125 S.Ct. 2195. That is far from a finding, beyond a reasonable doubt, that a particular robbery relating to marijuana is an activity that affects interstate commerce. Grafting Raich 's "holding ... onto the commerce element of the Hobbs Act" thus does not lead to the conclusion that "a robber who affects or attempts to affect ... the intrastate sale of marijuana grown within [a] State affects or attempts to affect"-beyond a reasonable doubt-"commerce over which the United States has jurisdiction." Ante, at 2080.

The Court's analysis thus provides no assurance that the Government has proved beyond a reasonable doubt that a Hobbs Act robbery defendant in fact affected commerce. And it unnecessarily extends our already broad precedents.

C

Finally, today's decision weakens longstanding protections for criminal defendants. The criminal law imposes especially high burdens on the Government in order to protect the rights of the accused. The Government may obtain a conviction only "upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged." Winship, 397 U.S., at 364, 90 S.Ct. 1068. Those elements must be proved to a jury. Amdt. 6; see Alleyne, 570 U.S., at ----, 133 S.Ct., at 2156 (opinion of THOMAS, J.). Given the harshness of criminal penalties on "the rights of individuals," the Court has long recognized that penal laws "are to be construed strictly" to ensure that Congress has indeed decided to make the conduct at issue criminal. United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820) (Marshall, C.J.). Thus, "before a man can be punished as a criminal under the federal law his case must be plainly and unmistakably within the provisions of some statute." United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917) (internal quotation marks omitted). When courts construe criminal statutes, then, they must be especially careful. And when a broad reading of a criminal statute would upset federalism, courts must be more careful still. "[U]nless Congress conveys its purpose clearly," we do not deem it "to have significantly changed the federal-state balance in the prosecution of crimes." Jones v. United States, 529 U.S. 848, 858, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (internal quotation marks omitted).

The substantial-effects test is in tension with these principles. That test-and the deferential, rational-basis review to which it is subjected, see *2089Raich, supra, at 22, 125 S.Ct. 2195 -puts virtually no burdens on the Government. That should not come as a surprise because the substantial-effects test gained momentum not in the criminal context, but instead in the context in which courts most defer to the Government: the regulatory arena. E.g., Wickard, 317 U.S., at 113, 122-125, 128-129, 63 S.Ct. 82 (relying on substantial-effects reasoning to uphold regulatory restrictions on wheat under the Agricultural Adjustment Act of 1938). Without adequate reflection, the Court later extended this approach to the criminal context. In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), for example, the Court applied the substantial-effects approach to a criminal statute, holding that Congress could criminally punish loansharking under its commerce power because "[e]xtortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce" when judged as a "class of activities." Id., at 154, 91 S.Ct. 1357 (emphasis deleted); see id., at 151-154, 156-157, 91 S.Ct. 1357.

Even in extending the substantial-effects approach, however, the Court still tried to impose some of the recognized limits on the Government in the criminal context. Just a year before it decided Perez, for example, the Court held that the Government must prove each charged element of a crime beyond a reasonable doubt. Winship, supra, at 364, 90 S.Ct. 1068. And the Court shortly thereafter gave a potentially broad federal statute a narrow reading-a reading that required a prohibited act to have a "demonstrated nexus with interstate commerce," rather than a lesser showing-based on lenity and federalism. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ; see id., at 339, 347-350, 92 S.Ct. 515. Indeed, the Court soon again invoked those same principles in rejecting a broad interpretation of the Hobbs Act itself. See United States v. Enmons, 410 U.S. 396, 410-412, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973) (invoking principles of lenity and federalism in construing the Hobbs Act not to reach the use of violence to achieve legitimate union objectives).

Today, however, the Court fails to apply even those limits. Today's decision fails to hold the Government to its burden to prove, beyond a reasonable doubt, that the defendant's robbery itself affected commerce. It fails to identify language in the Hobbs Act that " 'conveys ... clearly' " Congress' intention to reach the sorts of local, small-scale robberies that States traditionally prosecute. Jones, supra, at 858, 120 S.Ct. 1904. And it fails to take our traditionally careful approach to construing criminal statutes. Given the problems with the Court's expansive reading of the Hobbs Act, we cannot be sure that Taylor's "case" is "plainly and unmistakably within the provisions of" the Act. Gradwell, supra, at 485, 37 S.Ct. 407 (internal quotation marks omitted). It does not matter that Taylor committed a crime akin to the one that the Hobbs Act punishes. "It would be dangerous" to punish someone for "a crime not enumerated in the statute" merely "because it is of equal atrocity, or of kindred character, with those which are enumerated." Wiltberger, supra, at 96.

The Court takes that "dangerous" step-and other dangerous steps-today. It construes the Hobbs Act in a way that conflicts with the Constitution, with our precedents, and with longstanding protections for the accused. I would interpret the Hobbs Act in a way that is consistent with its text and with the Constitution.

* * *

For these reasons, I respectfully dissent.

McKEOWN, Circuit Judge.

In this appeal we are confronted with a question of first impression regarding the scope of Congress’s power under the Foreign Commerce Clause.1 At issue is whether Congress exceeded its authority “to regulate Commerce with foreign Nations,” U.S. Const, art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S. citizen who travels in “foreign commerce,” i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor. 18 U.S.C. § 2423(c). We hold that Congress acted within the bounds of its constitutional authority.

Congressional invocation of the Foreign Commerce Clause comes as no surprise in light of growing concern about U.S. citizens traveling abroad who engage in sex acts with children. The United States reiterated its commitment to quelling sexual abuse abroad by signing The Yokohama Global Commitment 2001, available at http://www.unicef.org/events/ yokoha-ma/outcome.html (last visited Dec. 29, 2005), which was concluded at the Second World Congress Against the Commercial Sexual Exploitation of Children. The Commitment welcomes “new laws to criminalize [child prostitution], including provisions with extra-territorial effect.” Id. Notably, in an explanatory statement attached to the Commitment, the United States emphasized that it “believes that the Optional Protocol [on child prostitution] and [the International Labour Organization’s Convention No. 182 regarding child labor] provide a clear starting point for international action concerning the elimination of commercial sexual exploitation of children.” Id.

Under the Commerce Clause, Congress has power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This seemingly simple grant of authority has been the source of much dispute, although very little of the controversy surrounds the “foreign Nations” prong of the clause. Cases involving the reach of the Foreign Commerce Clause vis-a-vis congressional authority to regulate our citizens’ conduct abroad are few and far between. See, e.g., United States v. Bredimus, 352 F.3d 200, 207-08 (5th Cir.2003) (affirming conviction under 18 U.S.C. § 2423(b), which reaches any person who travels in foreign commerce “for the purpose of’ engaging in illicit sexual conduct).2 It is not so much that the contours of the Foreign Commerce Clause are crystal clear, but rather that their scope has yet to be subjected to judicial scrutiny.

The Supreme Court has long adhered to a framework for domestic commerce comprised of “three general categories of regulation in which Congress is authorized to engage under its commerce power,” Gonzales v. Raich, — U.S. -, -, 125 S.Ct. 2195, 2205, 162 L.Ed.2d 1 (2005):(1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See also United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Raich, 125 S.Ct. at 2215 (Scalia, J., concurring) (noting that *1103for over thirty years, “our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories”). This framework developed in response to the unique federalism concerns that define congressional authority in the interstate context. Lopez, 514 U.S. at 557, 115 S.Ct. 1624 (“[T]he scope of the interstate commerce power ‘must be considered in the light of our dual system of government ....”’) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937)). No analogous framework exists for foreign commerce.

Further distinguishing the two spheres “is evidence that the Founders intended the scope of the foreign commerce power to be ... greater” as compared with interstate commerce. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979). This expansive latitude given to Congress over foreign commerce is sensible given that “Congress’ power to regulate interstate commerce may be restricted by considerations of federalism and state sovereignty,” whereas “[i]t has never been suggested that Congress’ power to regulate foreign commerce could be so limited.” Id. at 448 n. 13, 99 S.Ct. 1813.

Adapting the interstate commerce categories to foreign commerce in specific contexts is not an insurmountable task. See, e.g., United States v. Cummings, 281 F.3d 1046, 1049 n. 1 (9th Cir.2002) (analyzing constitutionality of the International Parental Kidnaping Act, 18 U.S.C. § 1204(a), under Lopez’s three-category approach). At times, however, this undertaking can feel like jamming a square peg into a round hole. Instead of slavishly marching down the path of grafting the interstate commerce framework onto foreign commerce, we step back and take a global, commonsense approach to the circumstance presented here: The illicit sexual conduct reached by the statute expressly includes commercial sex acts performed by a U.S. citizen on foreign soil. This conduct might be immoral and criminal, but it is also commercial. Where, as in this appeal, the defendant travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause.

Background

Michael Lewis Clark, a seventy-one year old U.S. citizen and military veteran, primarily resided in Cambodia from 1998 until his extradition in 2003. He typically took annual trips back to the United States and he also maintained real estate, bank accounts, investment accounts, a driver’s license, and a mailing address in this country. Following a family visit in May 2003, Clark left Seattle and flew to Cambodia via Japan, Thailand, and Malaysia. He was traveling on a business visa that he renewed on an annual basis.

While in Cambodia, Clark came to the attention of Action Pour Les Enfants, a non-governmental organization whose mission is to rescue minor boys who have been sexually molested by non-Cambodians. Clark came under suspicion when street kids reported to social workers that he was molesting young boys on a regular basis. The organization in turn reported him to the Cambodian National Police. In late June 2003, the Cambodian police arrested Clark after discovering him in a Phnom Penh guesthouse engaging in sex acts with two boys who were approximately ten and thirteen years old. He was charged with debauchery. The United States government received permission from the Cambodian government to take jurisdiction over Clark.

*1104U.S. officials — assisted by the Cambodian National Police and the Australian Federal Police — conducted an investigation that led to Clark’s confession and extradition to the United States. As part of the investigation, the younger boy told authorities that he had engaged in sex acts with Clark because he needed money to buy food for his brother and sister. The older boy stated that Clark had hired him in the past to perform sex acts, on one occasion paying five dollars. Other young boys whom Clark had molested reported that they were paid about two dollars, and Clark stated that he routinely paid this amount. Clark acknowledged that he had been a pedophile since at least 1996, “maybe longer,” and had been involved in sexual activity with approximately 40-50 children since he began traveling in 1996.

Upon his return to the United States, Clark was indicted under the provisions of the newly-enacted Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. No. 108-21, 117 Stat. 650 (2003).3 He pled guilty to two counts under 18 U.S.C. § 2423(c) and (e)4 but reserved the right to appeal his pre-trial motion to dismiss based on constitutional, jurisdictional, and statutory construction grounds. See United States v. Clark, 315 F.Supp.2d 1127 (W.D.Wash.2004) (order denying Clark’s motion to dismiss).

On appeal, Clark’s challenge centers on the constitutionality of § 2423(c). Adopted in 2003 as part of the PROTECT Act, § 2423(c) provides as follows:

(c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

This provision was first proposed as part of the Sex Tourism Prohibition Improvement Act of 2002, H.R.Rep. No. 107-525 (2002). The “Constitutional Authority Statement” in the Report accompanying this Act expressly identified the Commerce Clause, article I, section 8 of the Constitution, as the authority for the legislation. Id. at 5. The purpose of the bill was “to make it a crime for a U.S. citizen to travel to another country and engage in illicit sexual conduct with minors.” Id. The provision was not enacted, however, until it was added to the PROTECT Act the following year. See H.R.Rep. No. 108-66, at 5 (2003) (Conf.Rep.), as reprinted in 2003 U.S.C.C.A.N. 683. This section was incorporated verbatim into the 2003 legislation but the Report on the PROTECT Act does not include the prior reference to constitutional authority.

Before the PROTECT Act became law in 2003, § 2423(b) required the government to prove that the defendant “trav-elled] in foreign commerce, or conspire[d] to do so, for the purpose of engaging in ” specified sexual conduct with a person under eighteen years of age. Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322,108 Stat. 1796, Sec. 160001 *1105(1994) (codified as amended at 18 U.S.C. § 2423(b)) (emphasis added). The PROTECT Act replaced this single section with new subsections (b) through (g), with the new subsection (b) remaining substantively the same as the former subsection (b). Subsection (c) is an entirely new section which deletes the “for the purpose of’ language.5 The conference report accompanying the PROTECT Act explains that Congress removed the intent requirement from § 2423(c) so that “the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country.” H.R.Rep. No. 108-66 at 51; see also H.R.Rep. No. 107-525, at 2 (same statement in report for failed 2002 bill). Consequently, for § 2423(c) to apply, the two key determinations are whether the defendant “traveled] in foreign commerce” and “engages in any illicit sexual conduct.”

The statute defines “illicit sexual conduct” in two ways: First, the definition includes “a sexual act (as defined in section 2246 [18 U.S.C. § 2246]) with a person under 18 years of age that would be in violation of chapter 109A[18 U.S.C. §§ 2241 et seq.] if the sexual act occurred in the special maritime and territorial jurisdiction of the United States.” 18 U.S.C. § 2423(f)(1). Chapter 109A, in turn, criminalizes various forms of sexual abuse including, for example, aggravated sexual abuse by force, threat, or other means, 18 U.S.C. § 2241(a)-(b); sexual abuse by threatening or placing that other person in fear, 18 U.S.C. § 2242; and sexual abuse of a minor or ward, 18 U.S.C. § 2243. These violations share the common characteristic that there is no economic component to the crime. In other words, they are non-commercial sex acts.

In contrast, the second prong of the definition covers “any commercial sex act (as defined in section 1591[18 U.S.C. § 1591]) with a person under 18 years of age.” 18 U.S.C. § 2423(f)(2). “Commercial sex act,” in turn, is defined as “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(c)(1). Clark acknowledges that his conduct qualifies as illicit sexual conduct, and he admitted in his plea agreement that he “intended to pay each of the boys and each of the boys expected such payment in exchange for the sexual encounter.” Accordingly, it is this second “commercial sex act” prong that is at issue in Clark’s appeal.

Analysis

Clark does not dispute that he traveled in “foreign commerce,” nor does he dispute that he engaged in illicit commercial sexual conduct. The challenge he raises is to congressional authority to regulate this conduct. In addition to his Commerce Clause challenge, Clark attacks his conviction on international law, statutory construction, and Due Process grounds.6 In recognition of the principle that courts have a “strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration,” County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), we begin our analysis with Clark’s non-constitutional claims.

*1106I. Section 2423(C) Comports With The Principles Of International Law

We start with Clark’s argument that extraterritorial application of § 2423(c) violates principles of international law.7 On de novo review, United States v. Felix-Gutierrez, 940 F.2d 1200, 1203-04 (9th Cir.1991), we hold that extraterritorial application is proper based on the nationality principle.

The legal presumption that Congress ordinarily intends federal statutes to have only domestic application, see Small v. United States, 544 U.S. 385, -, 125 S.Ct. 1752, 1755, 161 L.Ed.2d 651 (2005), is easily overcome in Clark’s case because the text of § 2423(c) is explicit as to its application outside the United States. See 18 U.S.C. § 2423(c) (titled “Engaging in illicit sexual conduct in foreign places” and reaching people “who travel[] in foreign commerce”); see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 176, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (explaining that there must be “affirmative evidence of intended extraterritorial application”). By its terms, the provision is exclusively targeted at extraterritorial conduct.

Having addressed this threshold issue, we ask whether the exercise of extraterritorial jurisdiction in this case comports with principles of international law. See United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994) (“In determining whether a statute applies extraterritorially, we also presume that Congress does not intend to violate principles of international law.”) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963)); see also United States v. Neü, 312 F.3d 419, 421 (9th Cir.2002). Of the five general principles that permit extraterritorial criminal jurisdiction,8 the nationality principle most clearly applies to Clark’s case. The nationality principle “permits a country to apply its statutes to extraterritorial acts of its own nationals.” United States v. Hill, 279 F.3d 731, 740 (9th Cir. 2002). Jurisdiction based solely on the defendant’s status as a U.S. citizen is firmly established by our precedent. See, e.g., United States v. Walczak, 783 F.2d 852, 854 (9th Cir.1986) (holding that jurisdiction over a U.S. citizen who violated a federal statute while in Canada was proper under the nationality principle); McKeel v. Islamic Repub. of Iran, 722 F.2d 582, 588 (9th Cir.1983) (noting that nationality principle permits states to punish the wrongful conduct of its citizens); United States v. King, 552 F.2d 833, 851 (9th Cir.1976) (commenting that nationality principle would apply to U.S. citizen defendants). Clark’s U.S. citizenship is uncontested.9 *1107Accordingly, extraterritorial application of § 2423(c) to Clark’s conduct is proper based on the nationality principle.10

Clark also seeks to invalidate the statute because, in his view, extraterritorial application is unreasonable. See Restatement (Third) of Foreign Relations Law of the United States § 403 (1987); Vasquez-Ve-lasco, 15 F.3d at 840-41 (holding that extraterritorial application of U.S. statute to violent crimes associated with drug trafficking was reasonable under international law). The record provides no support for this argument. Clark cites no precedent in which extraterritorial application was found unreasonable in a similar situation. Cambodia consented to the United States taking jurisdiction and nothing suggests that Cambodia objected in any way to Clark’s extradition and trial under U.S. law. Clark himself stated to a U.S. official in Cambodia that he “wanted to return to the United States” because he saw people dying in the Cambodian prison “and was very much afraid that if [he] stayed in that prison, [he] would not survive.” Having been saved from immediate prosecution in Cambodia, it is somewhat ironic that he now challenges the law in a United States court.

II. Clark’s Conduct Falls Within The Scope Of § 2423(C)

Clark posits that § 2423(c) can be saved from constitutional scrutiny by interpreting it to require that the illicit sexual conduct take place while the defendant is literally still traveling. The district court declined to dismiss the indictment on this ground, explaining that “Clark is attempting to add elements to the crime ... that simply do not exist in the statute.” Clark, 315 F.Supp.2d at 1130. We agree. Despite Clark’s efforts to distance himself from the statute, we are unable to resolve this appeal by excising Clark’s conduct from the reach of § 2423(c). Cf. Jones v. United States, 529 U.S. 848, 850-51, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (avoiding constitutional challenge by construing statute’s text to hold that certain owner-occupied residences do not qualify as property “used in” commerce).

The statute is plain on its face: Section 2423(c) reaches “[a]ny United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person.” It does not require that the conduct occur while traveling in foreign commerce. In Clark’s case, the lapse in time between his most recent transit between the United States and Cambodia and his arrest was less than two months. We see no plausible reading of the statute that would exclude its application to Clark’s conduct because of this limited gap.11 Because the statute is unambiguous and Clark’s conduct falls squarely within the class of persons whose conduct Congress intended to criminalize under this statute, we do not invoke the rule of lenity. Jones, 529 U.S. at 858, 120 S.Ct. 1904 (“ambiguity concerning the am*1108bit of criminal statutes should be resolved in favor of lenity”) (citation omitted).

The legislative history also supports the plain reading that we adopt. The conference report explains that Congress eliminated the intent requirement so that “the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign eoum try.” H.R.Rep. No. 108-66 at 51. From a practical perspective, it seems non-sensical for Congress to limit the scope of § 2423(c) to the unlikely scenario where the abuse occurs while the perpetrator is literally en route.. This reading would eviscerate § 2423(c) by severely limiting its use to only those people who commit the offense while physically onboard an international flight, cruise, or other mode of transportation. We decline to adopt Clark’s strained reading of the statute.

III. No DUE PROCESS VIOLATIOn

The next question is whether extraterritorial application of § 2423(c) violates the Due Process Clause of the Fifth Amendment because there is an insufficient nexus between Clark’s conduct and the United States. We hold that, based on Clark’s U.S. citizenship, application of § 2423(c) to his extra-territorial conduct is neither “arbitrary [n]or fundamentally unfair.” United States v. Davis, 905 F.2d 245, 249 (9th Cir.1990).12

Clark is correct that to comply with the Due Process Clause of the Fifth Amendment, extraterritorial application of federal criminal statutes requires the government to demonstrate a sufficient nexus between the defendant and the United States “so that such application would not be arbitrary or fundamentally unfair.” Davis, 905 F.2d at 248-49. Indeed, “even resort to the Commerce Clause can[not] defy the standards of due process.” Sec’y of Agrie, v. Cent. Roig Refining Co., 338 U.S. 604, 616, 70 S.Ct. 403, 94 L.Ed. 381 (1950).

In Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), the Supreme Court explained that the extraterritorial application of U.S. law to its citizens abroad did not violate the Fifth Amendment. The Court declared that despite moving his residence to France, the U.S.-citizen defendant “continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country.” Id. at 436, 52 S.Ct. 252. This longstanding principle that citizenship alone is sufficient to satisfy Due Process concerns still has force. Citing Blackmer, we recently affirmed that “[t]here is no doubt that the United States may exercise jurisdiction over American nationals living abroad, regardless of where the crime is committed.” United States v. Corey, 232 F.3d 1166, 1179 n. 9 (9th Cir.2000).

Clark offers no authority that calls into question this principle. Instead, he relies on cases that involved foreign nationals, which meant that the courts had no choice but to look beyond nationality to establish the defendants’ ties with the United States. See, e.g., United States v. Klimavi-cius-Viloria, 144 F.3d 1249, 1254 (9th Cir. 1998) (defendant and crew “were all Co-lumbians”); Davis, 905 F.2d at 247 (“Davis is not a citizen of the United States.”).

Clark is a U.S. citizen, a bond that “implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other.” Luria v. United States, 231 U.S. 9, 22, 34 S.Ct. 10, 58 L.Ed. 101 (1913). *1109Predicated on this imputed allegiance, application of § 2423(c) to Clark’s extraterritorial conduct does not violate the Due Process Clause.13 Having concluded that none of Clark’s other arguments resolve this appeal, we turn to Clark’s Commerce Clause challenge.

IV. Congress’s Foreign Commerce Clause Power Extends To Regulating Commercial Sex Acts Abroad

In considering whether Congress exceeded its power under the Foreign Commerce Clause in enacting § 2423(c), we ground our analysis in the fundamental principle that “[i]t is an essential attribute of [Congress’s power over foreign commerce] that it is exclusive and plenary.” Bd. of Trustees of Univ. of III. v. United States, 289 U.S. 48, 56, 53 S.Ct. 509, 77 L.Ed. 1025 (1933). We are further mindful of the Supreme Court’s caution that “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). No plain showing has been made here. In light of Congress’s sweeping powers over foreign commerce, we conclude that Congress acted within its constitutional bounds in criminalizing commercial sex acts committed by U.S. citizens who travel abroad in foreign commerce.14

At the outset, we highlight that § 2423(c) contemplates two types of “illicit *1110sexual conduct”: non-commercial and commercial. Clark’s conduct falls squarely under the second prong of the definition, which criminalizes “any commercial sex act ... with a person under 18 years of age.” 18 U.S.C. § 2423(f)(2).15 In view of this factual posture, we abide by the rule that courts have a “strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration,” County Court of Ulster County, 442 U.S. at 154, 99 S.Ct. 2213, and limit our holding to § 2423(c)’s regulation of commercial sex acts.16

A. The Commerce Clause: Structure And History

Chief Justice Marshall observed long ago that “[t]he objects, to which the power of regulating commerce might be directed, are divided into three distinct classes— foreign nations, the several states, and Indian Tribes. When forming this article, the convention considered them as entirely distinct.” Cherokee Nation v. Georgia, 30 U.S. 1, 18, 5 Pet. 1, 8 L.Ed. 25 (1831). Looking to the text, the single clause indeed embodies three subclauses for which distinct prepositional language is used: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

Among legal scholars there has been considerable debate over the intrasentence unity — or disunity, as the case may be — of the three subclauses, considering that they share the common language “[t]o regulate Commerce.” Some commentators take the view that Congress’s powers over commerce with foreign nations and Indian tribes are broader than over interstate commerce. See, e.g., Kenneth M. Casebeer, The Power to Regulate “Commerce with Foreign Nations” in a Global Economy and the Future of American Democracy: An Essay, 56 U. Miami L.Rev. 25, 33-41 (2001); 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 4.2 (3d ed. 1999) (“Even during periods when the Justices were debating whether to significantly restrict the congressional power to regulate intrastate activities under the commerce power, there was no serious ad*1111vocacy of restrictions on the federal powers in these other areas.”).

Other scholars maintain that Congress has coextensive powers under the Commerce Clause’s subdivisions. See e.g., Louis Henkin, Foreign Affairs and the Constitution 70 n. 9 (1972) (“It is generally accepted, however, that the power of Congress is the same as regards both [foreign and interstate commerce].”); Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L.Rev. 1149, 1173 (2003) (“In practice, we have three different Commerce Clauses when text and history indicate that we ought to have but one.”). Despite the long-running lively debate among scholars, no definitive view emerges regarding the relationship among the three subclauses. Nonetheless, Supreme Court precedent points to the conclusion that the Foreign Commerce Clause is different than the Interstate Commerce Clause. See Japan Line, 441 U.S. at 448, 99 S.Ct. 1813 (“[T]here is evidence that the Founders intended the scope of the foreign commerce power to be .... greater” as compared with interstate commerce.).

Regardless of how separate the three subclauses may be in theory, the reality is that they have been subject to markedly divergent treatment by the courts. This approach is not surprising given the considerably different interests at stake when Congress regulates in the various arenas. Most notably, regardless of whether the subject matter is drugs, gender-motivated violence, or gun possession, a prominent theme runs throughout the interstate commerce cases: concern for state sovereignty and federalism. On the other hand, “[t]he principle of duality in our system of government does not touch the authority of the Congress in the regulation of foreign commerce.” Bd. of Trustees of Univ. of Ill., 289 U.S. at 57, 53 S.Ct. 509. This distinction provides a crucial touchstone in applying the Foreign Commerce Clause, for which Congress’s authority to regulate has not been defined with the precision set forth by Lopez and Morrison in the interstate context.

We start with the component that has dominated judicial consideration of the Commerce Clause: “among the several States.” After decades of expansive reading by the courts, see, e.g., Katzenbach v. McClung, 379 U.S. 294, 303-04, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) (“[W]here we find that the legislators ... have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”), the mid-1990s saw a retrenchment in Commerce Clause jurisprudence beginning with the watershed case of Lopez. In Lopez, the Court held that a statute which criminalized possession of a firearm in a school zone was beyond Congress’s Commerce Clause authority. 514 U.S. at 552, 115 S.Ct. 1624. In so holding, the Court stressed its concern that an overly expansive view of the Interstate Commerce Clause “would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” Id. at 557, 115 S.Ct. 1624 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. at 37, 57 S.Ct. 615). The Court reiterated these concerns five years later in Morrison in striking down a provision under the Violence Against Women Act: “[T]he concern ... that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded.” Morrison, 529 U.S. at 615, 120 S.Ct. 1740.

In addition to announcing a shift to a more constrained view of Congress’s power over interstate commerce, Lopez and Morrison ossified the three-category framework that the Court had long applied *1112to interstate commerce cases. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624; Morrison, 529 U.S. at 609-14, 120 S.Ct. 1740; see also Raich, 125 S.Ct. at 2215 (Sealia, J., concurring) (noting that for over thirty-years, “our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories”). As noted earlier, these three familiar categories are (1) the use of the channels of interstate commerce; (2) the instrumental-ities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. Within the interstate commerce arena, the guiding force of Lopez and Morrison quickly took firm hold, and lower courts have adhered closely to the three-prong structure. See, e.g., United States v. Adams, 343 F.3d 1024, 1027-28 (9th Cir.2003) (reciting the three categories set out in Lopez and Morrison and applying the third to a statute criminalizing the intrastate possession of child pornography).

This past term the Court introduced a new wrinkle in interstate commerce’s jurisprudential fabric when it held that the Controlled Substances Act was a valid exercise of Congress’s powers under the Commerce Clause. See Raich, 125 S.Ct. at 2201. Raich did not alter the fundamental three-prong rubric, but the Court took a more generous view of Congress’s power over interstate commerce than seen in Lopez and Morrison. Over the dissent’s pointed objections, the majority concluded that “Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.” Id. at 2207. This “rational basis” for finding a nexus between home-consumed marijuana and the interstate market put the regulation “squarely within Congress’ commerce power.” Id. In tension with the majority’s broad reading of Congress’s power over interstate commerce, the dissent emphasized that setting “outer limits” to Congress’s Commerce Clause powers “protect[s] historic spheres of state sovereignty from excessive federal encroachment.” Id. at 2220 (O’Connor, J., dissenting).

Although the Supreme Court’s view of the Interstate Commerce Clause has “evolved over time,” id. at 2205, Indian Commerce Clause jurisprudence has been more of a straight line proposition. See, e.g., United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (“[T]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive’ ... This Court has traditionally identified the Indian Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power.”) (citations omitted). Indeed, the Supreme Court has commented on the “very different applications” of the Interstate and Indian Commerce Clause powers, explaining that interstate commerce jurisprudence “is premised on a structural understanding of the unique role of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause.” Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989). In contrast to the federal government’s relationship with the states, its relationship with Indian tribes is “based on a history of treaties and the assumption of a ‘guardian-ward’ status.” Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). The Commerce Clause stands as one of the main textual grants of Congress’s plenary power to regulate this special relationship between the federal government and Indian tribes. Id. at 551-52, 94 S.Ct. 2474. In this con*1113text, the Court has defined Congress’s authority under the Indian Commerce Clause without reference to the rigid categories of Lopez and Morrison. See, e.g., Lara, 541 U.S. at 196, 200-207, 124 S.Ct. 1628 (upholding Congress’s authority to adjust tribal sovereignty in criminal matters under the Indian Commerce Clause without considering the three-category framework).

As with the Indian Commerce Clause, the Foreign Commerce Clause has followed its own distinct evolutionary path. Born largely from a desire for uniform rules governing commercial relations with foreign countries, the Supreme Court has read the Foreign Commerce Clause as granting Congress sweeping powers. See Bd. of Trustees of Univ. of Ill., 289 U.S. at 59, 53 S.Ct. 509 (“[W]ith respect to foreign intercourse and trade[,] the people of the United States act through a single government with unified and adequate national power.”); see also Rotunda & Nowak § 4.2 (“The Court has always recognized a plenary power in Congress to deal with matters touching upon foreign relations or foreign trade.”); Robert J. Delahunty, Federalism Beyond the Water’s Edge: State Procurement Sanctions and Foreign Affairs, 37 Stan. J. Int’l L. 1, 16-26 (2001) (describing the origins of the Foreign Commerce Clause). This view was laid down nearly two centuries ago when Chief Justice Marshall stated that “[i]t has, we believe, been universally admitted, that [the words of the Commerce Clause] comprehend every species of commercial intercourse between the United States and foreign nations.” Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 193, 6 L.Ed. 23 (1824).

The Court has been unwavering in reading Congress’s power over foreign commerce broadly. See, e.g., California Bankers Ass’n v. Shultz, 416 U.S. 21, 46, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (stating that Congress’s plenary authority over foreign commerce “is not open to dispute”); Buttfield v. Stranahan, 192 U.S. 470, 492-93, 24 S.Ct. 349, 48 L.Ed. 525 (1904) (describing the “complete power of Congress over foreign commerce”); Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813-14, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting) (“Congress has broad power under Article I, § 8, cl. 3, ‘to regulate Commerce with foreign Nations,’ and this Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected.”). There is no counterpart to Lopez or Morrison in the foreign commerce realm that would signal a retreat from the Court’s expansive reading of the Foreign Commerce Clause. In fact, the Supreme Court has never struck down an act of Congress as exceeding its powers to regulate foreign commerce.

Federalism and state sovereignty concerns do not restrict Congress’s power over foreign commerce, see Japan Line, 441 U.S. at 448 n. 13, 99 S.Ct. 1813, and the need for federal uniformity “is no less paramount” in assessing the so-called “dormant” implications of congressional power under the Foreign Commerce Clause. Id. at 449, 99 S.Ct. 1813; see also Bd. of Trustees of Univ. of Ill., 289 U.S. at 59, 53 S.Ct. 509 (instrumentality of a state was not entitled to import articles duty free because “with respect to foreign intercourse and trade[,] the people of the United States act through a single government with unified and adequate national power”). By contrast, under the dormant Interstate Commerce Clause, “reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.” Southern Pac. Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761, 768-69, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).

*1114Clark’s case illustrates the predominance of national interests and the absence of state sovereignty concerns in Foreign Commerce Clause jurisprudence. No state has voiced an interest in the proceedings nor is there an indication of any state interest at stake in determining the constitutionality of § 2423(c). Because this case is divorced from the common federal/state interplay seen in the Interstate Commerce Clause cases, we find ourselves in sparsely charted waters. We thus look to the text of § 2423(c) to discern whether it has a constitutionally tenable nexus with foreign commerce.

B. Section 2423(C)’s Regulation Of Commercial Sex Acts Is A Valid Exercise Of Congress’s Foreign Commerce Clause Powers

Taking a page from Raich, we review the statute under the traditional rational basis standard. Raich, 125 S.Ct. at 2211. The question we pose is whether the statute bears a rational relationship to Congress’s authority under the Foreign Commerce Clause.

Although it is important to view the statute as a whole, parsing its elements illustrates why the statute fairly relates to foreign commerce. The elements that the government must prove under § 2423(c)’s commercial sex acts prong are straightforward. First, the defendant must “travel[ ] in foreign commerce.” 18 U.S.C. § 2423(c). Second, the defendant must “engage[ ] in any illicit sexual conduct with another person,” id., which in this case contemplates “any commercial sex act ... with a person under 18 years of age.” 18 U.S.C. § 2423(f)(2). We hold that § 2423(e)’s combination of requiring travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitutionally adequate degree.

Beginning with the first element, the phrase “travels in foreign commerce” unequivocally establishes that Congress specifically invoked the Foreign Commerce Clause. The defendant must therefore have moved in foreign commerce at some point to trigger the statute. In Clark’s case, he traveled from the United States to Cambodia.

“Foreign commerce” has been defined broadly for purposes of Title 18 of the U.S.Code, with the statutory definition reading, in full: “The term ‘foreign commerce’, as used in this title, includes commerce with a foreign country.” 18 U.S.C. § 10. Admittedly, this definition is not particularly helpful given its rearrangement of the words being defined in the definition itself. Courts have understandably taken the broad wording to have an expansive reach. See, e.g., United States v. Montford, 27 F.3d 137, 139-40 (5th Cir.1994) (discerning that “Congress intended foreign commerce to mean travel to or from, or at least some form of contact with, a foreign state”); Londos v. United States, 240 F.2d 1, 6 (5th Cir.1957) (concluding that foreign commerce under § 10 “means passing to and fro”). We likewise see no basis on which to impose a constrained reading of “foreign commerce” under § 2423(c). Clark got on a plane in the United States and journeyed to Cambodia. This act is sufficient to satisfy the “travels in foreign commerce” element of § 2423(c).

Once in Cambodia, the second element of § 2423(c) was also met, namely, “engage[ment] in any illicit sexual conduct with another person,” 18 U.S.C. § 2423(c), which in this case was commercial sex under § 2423(f)(2). As the Supreme Court recognized centuries ago, the Commerce Clause “comprehend[s] every species of commercial intercourse between the United States and foreign nations.” Gibbons, *111522 U.S. at 193; see also Bd. of Trustees of Univ. of Ill., 289 U.S. at 56-57, 53 S.Ct. 509 (same). Section 2423(c) regulates a pernicious “species of commercial intercourse”: commercial sex acts with minors.

The statute expressly includes an economic component by defining “illicit sexual conduct,” in pertinent part, as “any commercial sex act ... with a person under 18 years of age.” 18 U.S.C. § 2423(f)(2). “Commercial sex act ‘is defined as’ any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(c)(1). Thus, in the most sterile terms, the statute covers the situation where a U.S. citizen engages in a commercial transaction through which money is exchanged for sex acts.

The essential economic character of the commercial sex acts regulated by § 2423(c) stands in contrast to the non-economic activities regulated by the statutes at issue in Lopez and Morrison. See Morrison, 529 U.S. at 613, 120 S.Ct. 1740 (“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”); Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (explaining that firearm possession statute was purely a criminal statute). In both Lopez and Morrison, the Supreme Court voiced strong concerns over Congress’s use of the Commerce Clause to enact “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Morrison, 529 U.S. at 610, 120 S.Ct. 1740 (quoting Lopez, 514 U.S. at 561, 115 S.Ct. 1624). Like the statute regulating illicit drugs at issue in Raich, the activity regulated by the commercial sex prong of § 2423(c) is “quintessentially economic,”17 125 S.Ct. at 2211, and thus falls within foreign trade and commerce.18

As in Raich, the fact that § 2423(c) has a criminal as well as an economic component does not put it beyond Congress’s reach under the Foreign Commerce Clause. Indeed, § 2423(c) is far from unique in using the Foreign Commerce Clause to regulate crimes with an economic facet. See, e.g., United States v. Kay, 359 F.3d 738, 741 (5th Cir.2004) (de*1116scribing “particular instrumentalities of interstate and foreign commerce that defendants used or caused to be used in carrying out the purported bribery” in violation of the Foreign Corrupt Practices Act); United States v. Hsu, 155 F.3d 189, 195-96 (3rd Cir.1998) (discussing statute enacted as part of the Economic Espionage Act of 1996 that criminalizes the theft of trade secrets related to products “produced for or placed in interstate or foreign commerce”); United States v. Gertz, 249 F.2d 662, 666-67 (9th Cir.1957) (explaining that statute criminalizing the forging or counterfeiting of foreign currency is based on the Foreign Commerce Clause).

The combination of Clark’s travel in foreign commerce and his conduct of an illicit commercial sex act in Cambodia shortly thereafter puts the statute squarely within Congress’s Foreign Commerce Clause authority. In reaching this conclusion, we view the Foreign Commerce Clause independently from its domestic brethren.

Likewise, although our precedent illustrates that the inter-state categories may be adapted for use in specific foreign commerce contexts, see, e.g., Cummings, 281 F.3d at 1049 n. 1, the categories have never been deemed exclusive or mandatory, nor has the Supreme Court suggested their application in relation to the Foreign Commerce Clause. Cf. Prakash, 55 Ark. L.Rev. at 1166 (“Apparently, the Supreme Court has never discussed the applicability of the three-part Lopez test to gauging the limits of the foreign commerce power.”). The categories are a guide, not a straightjacket. In Cummings, we upheld the constitutionality of the International Parental Kidnaping Crime Act (“IPKCA”), 18 U.S.C. § 1204(a). See 281 F.3d at 1051. In so holding, we applied the interstate commerce framework but noted that Congress has “broader power” in the foreign commerce area, and this context “is quite relevant to our inquiry.” Id. at 1049 n. 1. Critical to this understanding was the Supreme Court’s now familiar statement in Japan Line that “the Founders intended the scope of the foreign commerce power to be ... greater” as compared with interstate commerce. Id. (quoting Japan Line, 441 U.S. at 448, 99 S.Ct. 1813).

At times, forcing foreign commerce cases into the domestic commerce rubric is a bit like one of the stepsisters trying to don Cinderella’s glass slipper; nonetheless, there is a good argument that, as found by the district court, § 2423(c) can also be viewed as a valid regulation of the “channels of commerce.” Our previous decisions have recognized that Congress legitimately exercises its authority to regulate the channels of commerce where a crime committed on foreign soil is necessarily tied to travel in foreign commerce, even where the actual use of the channels has ceased. See Cummings, 281 F.3d at 1050-51.

Clark emphasizes that § 2423(b) requires that the foreign travel be with the specific intent to engage in illicit sex, whereas § 2423(c) does not have such a specific intent requirement. Although the intent element distinguishes the two statutory crimes, we do not see that it distinguishes the scope of Congress’s Constitutional authority. Under § 2423(b), the crime is contained solely within the “travels in foreign commerce” provision of the statute. Under the crime charged in this case, § 2423(c) and (f)(2), the crime requires both foreign travel and engaging in an illicit commercial sex act. These are two different statutes with separate justifications under the Commerce Clause.

In sum, Clark has failed to demonstrate “a plain showing that Congress ... exceeded its constitutional bounds,” Morrison, 529 U.S. at 607, 120 S.Ct. 1740, in enacting §§ 2423(c) and (f)(2). Traveling to a foreign country and paying a child to *1117engage in sex acts are indispensable ingredients of the crime to which Clark pled guilty. The fact that §§ 2423(c) and (f)(2) meld these economic and criminal components into a single statute does not put the conduct beyond Congress’s reach under the Foreign Commerce Clause. The rational nexus requirement is met to a constitutionally sufficient degree. Congress did not exceed its power “to regulate Commerce with foreign Nations,” U.S. Const. art. I, § 8, cl. 3, in criminalizing commercial sex acts with minors committed by U.S. citizens abroad.

AFFIRMED.

FERGUSON, Circuit Judge,

dissenting:

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it. The majority holds that “travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitutionally adequate degree.” Maj. op. at 1114. I respectfully disagree.

The Constitution authorizes Congress “[t]o regulate Commerce with foreign Nations.” Art. I, § 8, cl. 3. The activity regulated by 18 U.S.C. § 2423(c), illicit sexual conduct, does not in any sense of the phrase relate to commerce with foreign nations. Rather, § 2423(c) is a criminal statute that punishes private conduct fundamentally divorced from foreign commerce. Article I, section 8, clause 3, while giving Congress broad authority over our commercial relations with other nations, is not a grant of international police power. I respectfully dissent from the majority’s assertion that the Commerce Clause authorizes Congress to regulate an activity with a bare economic component, as long as that activity occurs subsequent to some form of international travel. I also note that the conduct in this case will not go unpunished, as the reasonable course of action remains of recognizing Cambodia’s authority to prosecute Clark under its own criminal laws.

I.

Our national government is a government of “enumerated powers,” see U.S. Const. art. I, § 8, which presupposes powers that are not enumerated, and therefore not accorded to Congress, see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 85, 6 L.Ed. 23 (1824). As such, the Commerce Clause is “subject to outer limits.” United States v. Lopez, 514 U.S. 549, 556-57, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Through a long line of cases, the Supreme Court has developed a tri-category framework that helps courts ascertain these outer limits, and whether a particular enactment exceeds them. See, e.g., Gonzales v. Raich, — U.S.-,-, 125 S.Ct. 2195, 2205, 162 L.Ed.2d 1 (2005). In the foreign commerce context, the majority would replace this time-tested framework with its own broad standard: whether a statute “has a constitutionally tenable nexus with foreign commerce.” Maj. op. at 1114. The majority views the foreign commerce prong of the Commerce Clause “independently from its domestic brethren,” id. at 1116, though Congress’s authority in both spheres is governed by the same constitutional language: “[t]o regulate Commerce,” art. I, § 8, cl. 3. In so doing, the majority goes farther than our precedent counsels and dispenses with the tri-catego-ry framework that has grounded Commerce Clause analysis in the modern era.1

*1118The majority portrays the raison d’etre of the tri-category framework as addressing “unique federalism concerns that define congressional authority in the interstate context.” Maj. op. at 1103 (emphasis added) (citing Lopez, 514 U.S. at 557, 115 S.Ct. 1624). It is thus able to conclude that this framework is generally inapplicable to foreign commerce cases. A fairer understanding of the tri-category framework is that it has evolved not only in response to federalism concerns that courts have read into Congress’s Interstate Commerce power, but also to give content to what it means generally “[t]o regulate Commerce,” art. I, § 8, cl. 3. Cf. Lopez, 514 U.S. at 551, 115 S.Ct. 1624 (citing not only federalism concerns in invalidating 18 U.S.C. § 922(q), but also the fact that the statute “neither regulates a commercial activity nor contains a requirement that the [gun] possession be connected in any way to interstate commerce”); United States v. Morrison, 529 U.S. 598, 610, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (noting that “the noneconomic, criminal nature of the conduct at issue” was central to the Supreme Court’s decision in Lopez). While Congress’s authority to regulate foreign commerce may well be broader than its authority to regulate interstate commerce, see, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979), its authority in the foreign sphere is not different in kind. In both spheres, Congress is only authorized “[t]o regulate Commerce,” art. I, § 8, cl. 3, and not those activities that are fundamentally divorced from commerce. So while the majority correctly notes that “[flederalism and state sovereignty concerns do not restrict Congress’s power over foreign commerce,” maj. op. at 1113, it fails properly to consider the restrictions on the scope of Congress’s Foreign Commerce power that emanate from the constitutional text itself, which the tricategory framework also helps elucidate.

II.

Under the tri-category framework, and contrary to the District Court’s conclusion, § 2423(c) is not a regulation of the channels of foreign commerce. Section 2423(c) lacks any of the tangible links to the channels of commerce that would justify upholding it under Congress’s Foreign Commerce power.

The Supreme Court has held that Congress’s authority to regulate the channels of commerce encompasses keeping those channels “free from immoral and injurious uses.” Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (internal quotation marks omitted). Thus, Congress has the authority to criminalize the international transport of children for the purpose of sexual exploitation in the U.S. because such transport is an immoral and injurious use of the channels of commerce. Cf. United States v. Hersh, 297 F.3d 1233, 1238 (11th Cir.2002) (upholding the conviction of a defendant who transported a Honduran boy to Florida to engage in *1119sexual relations). Congress also has the authority to criminalize travel “for the purpose” of engaging in illicit sexual conduct, since travel with such harmful intent constitutes an injurious use of the channels of foreign commerce. See, e.g., United States v. Bredimus, 352 F.3d 200, 207-08 (5th Cir.2003).2 We have not necessarily limited Congress’s reach under its channels of commerce authority based on the cessation of movement. Thus, this Court found it a proper congressional exercise in United States v. Cummings to prevent persons from retaining children abroad after they first made use of the channels of foreign commerce wrongfully to remove the children from the U.S. 281 F.3d 1046, 1050 (9th Cir.2002); see also United States v. Shahani-Jahromi, 286 F.Supp.2d 723, 734 (E.D.Va.2003) (holding that wrongful retention of a child in a foreign country, which impeded that child’s travel back to the U.S. through the channels of commerce, provided a sufficient basis for Congress to exercise its Foreign Commerce power).

Under this rubric, the current 18 U.S.C. § 2423(b) contains a defensible link to the channels of foreign commerce, as it covers people who “[tjravel with intent to engage in illicit sexual conduct.” See, e.g., Nick Madigan, Man, 86, Convicted Under New Law Against Americans Who Go Abroad to Molest Minors, N.Y. Times, Nov. 20, 2004, at A12 (defendant was arrested at Los Angeles International Airport with “dozens of pornographic photographs of himself with Filipino girls, sex toys and 100 pounds of chocolate and candy”). The activity regulated by § 2423(b), intention to engage in illicit sexual conduct, is at least tenably related to the channels of commerce in that the defendant engages in travel with illegitimate ends. The person indicted under § 2423(b) has a plane ticket in hand, has paid a travel agent to set up the trip, or has otherwise committed an act that is both wrongful (because of the criminal intent) and tangibly related to the channels of commerce.

By contrast, § 2423(c) neither punishes the act of traveling in foreign commerce, or the wrongful use or impediment of use of the channels of foreign commerce. Rather, it punishes future conduct in a foreign country entirely divorced from the act of traveling except for the fact that the travel occurs at some point prior to the regulated conduct. The statute does not require any wrongful intent at the time the channel is being used, nor does it require a temporal link between the “travel[ ] in foreign commerce,” 18 U.S.C. § 2423(c), and the underlying regulated activity.

The majority suggests that § 2423(c) “can[ ] be viewed as a valid regulation of the ‘channels of commerce,’ ” maj. op. at 1116, because Congress’s channels of commerce authority extends to regulating crimes committed abroad that are “necessarily tied to travel in foreign commerce,” id. But whereas the requisite ties to the channels of commerce exist in the case the majority cites, Cummings, 281 F.3d 1046, these ties are entirely absent in § 2423(c). The statute in Cummings prohibited conduct — wrongful retention of children abroad — that was necessarily tied to injurious uses of the channels of commerce. The defendant in Cummings illegally transported his children to Germany so that he could retain them there, and his wrongful retention of them necessarily impeded their lawful use of the channels of commerce to return to the U.S. By contrast, § 2423(c) regulates an activity that is in no way connected to the wrongful use, or impediment of use, of the channels of foreign commerce. Section 2423(c) only *1120requires that the regulated conduct occur at some point subsequent — perhaps even years subsequent — to international travel. The travel may well be lawful — the statute does not require any criminal intent during travel, nor does it otherwise connect the regulated activity to an abuse of the channels of commerce.

The mere act of boarding an international flight, without more, is insufficient to bring all of Clark’s downstream activities that involve an exchange of value within the ambit of Congress’s Foreign Commerce power. On some level, every act by a U.S. citizen abroad takes place subsequent to an international flight or some form of “travel[] in foreign commerce.” 18 U.S.C. § 2423(c). This cannot mean that every act with a bare economic component that occurs downstream from that travel is subject to regulation by the United States under its Foreign Commerce power, or the Commerce Clause will have been converted into a general grant of police power. It is telling to note that, theoretically, the only U.S. citizens who could fall outside the reach of § 2423(c) if they engage in illicit sexual conduct abroad are those who never set foot in the United States (i.e., U.S. citizens by virtue of their parent’s citizenship), and thus never travel in “Commerce with foreign Nations.” Art. I, § 8, cl. 3. In short, § 2423(c) is divorced from its asserted Commerce Clause underpinnings. The statute does not set another “guidepost” regarding Congress’s Foreign Commerce power, contra United States v. Clark, 315 F.Supp.2d 1127, 1135 (W.D.Wash.2004) — it exceeds it.

III.

Rather than engaging in a losing “channels of commerce” analysis, the majority applies a general “rational nexus” standard in this case, maj. op. at 1117, and strains to find more foreign commerce in § 2423(c) than the act of boarding an international flight. Specifically, the majority characterizes the crime regulated by § 2423(c), illicit sexual conduct, as sufficiently related to “Commerce with foreign Nations,” art. I, § 8, cl. 3, to bring it under Congress’s Foreign Commerce authority.

First, the underlying regulated activity is not “quintessentially economic,” maj. op. at 1115, simply because it has a bare economic aspect. Just as “[gjender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” Morrison, 529 U.S. at 613, 120 S.Ct. 1740, neither is “illicit sexual conduct.” The plain purpose of § 2423(c) is to regulate criminal conduct, not commerce. As the Supreme Court cautioned in Lopez, “depending on the level of generality, any activity can be looked upon as commercial.” 514 U.S. at 565, 115 S.Ct. 1624.

Further, the underlying act, even if considered economic or commercial, is certainly not a presence of commerce with foreign nations. In the most sterile terms, an act of paid sex with a minor that takes place overseas is not an act of commerce with other nations. Under the interpretation of the majority, the purchase of a lunch in France by an American citizen who traveled there by airplane would constitute a constitutional act of engaging in foreign commerce. Under such an interpretation, Congress could have the power to regulate the overseas activities of U.S. citizens many months or years after they had concluded their travel in foreign commerce, as long as the activities involved some sort of exchange of value — even if the partner in exchange was a U.S. entity that funneled the value back into the American economy. Analogously, the statute here does not even facially limit its application to sex with foreign minors in an effort to create a tenable link to “Commerce with foreign Nations.” Art. I, § 8, cl. 3. This observation may seem slightly absurd, but so is the task of trying to show *1121how sexual abuse of a minor overseas by a U.S. citizen constitutes an act of “Commerce with foreign Nations.” Id.

IV.

Viewed as a whole, it is clear that § 2423(c) does not relate to “Commerce with foreign Nations.” Id. Nor is § 2423(c) a constitutional exercise of Congress’s authority to regulate the channels of commerce. Sexual exploitation of children by foreigners is thoroughly condemnable, but the question before us is whether Congress properly invoked its power “[t]o regulate Commerce with foreign Nations,” id., in enacting § 2423(c) to address this problem. It did not. I therefore respectfully dissent.

Mr. Chief Justice Taft

delivered the opinion of the Court.

This is a writ of error under the Criminal Appeals Act (c. 2564, 34 Stat. 1246) to review the ruling of the District Court sustaining a dei turrer of one of the defendants to an indictment for a conspiracy to defraud a corporation in which the United States was and is a stockholder, under § 35 of the Criminal Code, as amended October 23, 1918, c. 194, 40 Stat. 1015.

During the period covered by the indictment, i. e., between October, 1919, and. January, 1920, the steamship Dio belonged to the United States. The United States owned all the stock in the United States Shipping Board Emergency Fleet Corporation. The National Shipping Corporation agreed to operate and manage the Dio for the Fleet Corporation, which under the contract was to pay for fuel, oil, labor and material used in the operation. The Dio was on a voyage to Rio de Janeiro under this management. • Wry was her master, Bowman was her engineer, Hawkinson. was the agent of the Standard Oil Company at Rio de Janeiro, and Millar was a merchant and ship repairer.and engineer in Rio. Of these four, who were the defendants in the indictment, the first three were American citizens, and Millar was a British subject. Johnston & Company were the agents of the National •Shipping Corporation at Rio. The indictment charged that the plot was hatched, by Wry and Bowman on board the Dio before she reached Rio. Their plan was to order, through Johnston & Company, and receipt for,N1000 tons of fuel oil from the Standard Oil Company, but to take only 600.tons aboard, and to collect cash for a delivery of 1000 tons through Johnston & Company, from the Fleet Corporation, and then divide the money paid for the undelivered 400 tons among the four defendants. This *96plan was to be, and was, made possible through the guilty connivance of the Standard Oil agent - Hawkinson and Millar the Rio merchant who was to, and did collect the money. Overt acts charged included a wireless telegram to the agents, Johnston & Company, from the Dio while on the high ,seas ordering the 1000 tons of oil. The Southern District of. New York was the district into which the American. defendants were first brought and were found, but Millar, the British defendant, has ijot been found.

The first count charged a conspiracy by the defendants to defraud the Fleet Corporation in which the United States .was a stockholder, by obtaining and aiding to obtain the payment and allowance of a false and fraudulent claim against the Fleet Corporation. It laid the offense on the high seas, out of the jurisdiction of any particular State and out of the jurisdiction of any district of the United States, but within the admiralty and maritime jurisdiction of the United States. The second count laid the conspiracy on. the Dio on the high seas and. at the port of Rio de Janeiro as well as in the city. The third count laid it in the city of Rio de Janeiro. The fourth count was for making and causing to be made in the name of the Standard Oil Company, for payment and approval, a false and fraudulent claim against the Fleet Corporation in the form of an invoice for 1000 tons of fuel oil, of which 400 tons were not delivered. This count laid the same crime on board the Dio in the harbor of Rio de .Janeiro. The fifth count laid it in the city and the sixth at the port and in the city.

No objection was made to the indictment or any count of it for lack of precision or fullness in describing all the elements of the crimes denounced in § 35 of the Criminal • Code as amended., The sole objection was that the crime was committed without the jurisdiction of the United .. States or of any State thereof and on the high seas or *97within the jurisdiction of Brazil. The District Court considered only the first count,, which charged the conspiracy to have been committed on the Dio on the high seas, and having held that bad for lack of jurisdiction, a jortiori it sustained the. demurrer as to the others.

The court in its.opinion conceded that under many authorities the United States as a sovereign may regulate the ships under its flag and the conduct of its citizens-, while on, those ships, and cited to this point Crapo v. Kelly, 16 Wall. 610, 623-632; United States v. Rodgers, 150 U. S. 249, 260-1, 264-5; The Hamilton, 207 U. S. 398, 403, 405; American Banana Co. v. United Fruit Co., 213 U. S. 347; Wilson v. McNamee, 102 U. S. 572, 574; United States V. Smiley, 6 Sawy. 640, 645. The court said, however, that while private-and public ships of the United States on the high seas were constructively a part of the territory of the United' States, indeed peculiarly so as distinguished from that of the States, Congress had always expressly indicated it when it’’intended that its laws should be operative on the high seas. The court concluded that because jurisdiction of criminal offenses •must be conferred upon-United States courts and could not be inferred, and because § 35, like all the other sections of' c. 4, contains no reference to the high seas as a part of the locus of the offenses defined by 'it, as the sections in cc. 11 and 12 of the Criminal Code do, § 35 must be construed not to extend to acts committed on the high seas. It confirmed its conclusion by the statement that § 35 had never been invoked to punish offenses denounced if committed on the high seas or in a foreign country.

We have in this case a question of statutory construction. The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a *98government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. We have an example of this in the attempted application of the prohibitions of the Anti-Trust Law to acts done by citizens of the United States against other such citizens in a foreign country. American Banana Co. v. United Fruit Co., 213 U. S. 347. That was., a civil case, but as the statute is criminal as well as civil, it presents an analogy.

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the. Government because of the local acts required to constitute them. Others are such that to limit their locus to the. strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as' easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in. the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the. offense. Many of these occur in c. 4, which bears the title “ Offenses *99against the operations of the Government.” • Section 70. of that chapter punishes whoever as consul knowingly certifies a false invoice. Clearly the locus of this crime as intended by Congress - is in a foreign country and certainly the foreign country in which he discharges his official duty could not object to the trial in a United States court of a United States consul for crime of this sort committed within its borders. Forging or altering ship’s papers is made a crime by § 72 of c. 4. It would be going too far to say that because Congress does not fix any locus it intended to exclude the high seas in respect of this crime. The natural inference from the character of the offense is that the sea would be a probable place for its commission. Section 42 of c. 4 punishes enticing desertions from the naval service. Is it possible that-Congress did not intend by this to include such enticing done aboard ship on the high seas or in a foreign port, where it would be most likely to be done? Section 39 punishes bribing^, United States officer of the civil, military ojr naval service to violate his duty or to aid in committing a fraud on the United States. It is hardly reasonable to construe this not to include such offenses when the bribe is offered to a consul, ambassador, an army or a naval officer in a foreign country or on the high seas, whose duties are being performed there and when his connivance at such fraud must occur there. So, too, § 38 of c. 4 punishes the wilfully doing or aiding to do any act relating to the bringing in, custody, sale or other disposi-; tion of property captured as prize, with intent to defraud, delay or injure the United States or any captor or claimant of such property. This would naturally often occur at sea, and Congress could not have meant to confine, it to the land of the United States. Again, in § 36 of c. 4, it is made a crime to steal, embezzle, or knowingly apply to his own use ordnance, arms, ammunition, clothing, subsistence, stores, money or other property of the United *100States furnished or to be used for military or naval service. It would hardly be reasonable to hold that if any one, certainly if a citizen of the United States, were to steal or embezzle such property which may properly and lawfully be in the custody of army or naval officers either in foreign countries, in foreign ports or on the high seas, it would not be in such places an offense which Congress intended to punish by this section.

What is true of these sections in this regard is true of § 35, under which this indictment was drawn.. We give it in full in the margin.1

*101It is directed generally against whoever presents a false claim against the United States, knowing-it to be such, to any officer of the civil, military or naval service or to any department thereof, or any corporation in which the United States is a stockholder, or whoever connives at the same by the use of any cheating device, or whoever enters a conspiracy to do these things. The section was amended in .1918 to include a corporation in which the United States owns stock. This was evidently intended to protect the Emergency Fleet Corporation in which the *102United States was the sole stockholder, from fraud of this character. That Corporation was expected to engage in, and did engage in, a most extensive oceáu transportation business and its ships were seen in every great port of the world open during the war. The same section of the statute protects the arms, ammunition, stores and property of the army and navy from fraudulent devices of a similar character. We can not suppose that when Congress enacted the statute or amended it, it did not have in mind that a wide field for such frauds upon the Government was in private and public vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States, and therefore intend to include them in the section.

Nor can the much- quoted rule that criminal statutes are to be strictly construed avail. As said in United States v. Lacher, 134 U. S. 624, 629, quoting with approval from Sedgwick, Statutory and Constitutional Law, 2d ed., 282: “penal provisions, like all others, are to be fairly construed according to the legislative intent as' expressed in the enactment.” They are not to be strained either way. It needs no forced construction to interpret § 35 as we have done.

Section 41 of the Judicial Code provides that “ the trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought.” The three defendants who were fqünd in New York, were citizens of the United States and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance. The other defendant is a subject of Great Britain.. ■ He has never been apprehended, and it will be time enough to consider what, if any, jurisdiction the Dis*103trict Court, below has to punish him when he is brought to* trial.

The judgment of the District Court is reversed, with directions to overrule the demurrer and for further proceedings.-

Reversed.

Justice Thomas

delivered the opinion of the Court.

At common law, the revenue rule generally barred courts from enforcing the tax laws of foreign sovereigns. The *353question presented in this case is whether a plot to defraud a foreign government of tax revenue violates the federal wire fraud statute, 18 U. S. C. § 1343 (2000 ed., Supp. II). Because the plain terms of § 1343 criminalize such a scheme, and because this construction of the wire fraud statute does not derogate from the common-law revenue rule, we hold that it does.

I

Petitioners Carl J. Pasquantino, David B. Pasquantino, and Arthur Hilts were indicted for and convicted of federal wire fraud for carrying out a scheme to smuggle large quantities of liquor into Canada from the United States. According to the evidence presented at trial, the Pasquantinos, while in New York, ordered liquor over the telephone from discount package stores in Maryland. See 336 F. 3d 321, 325 (CA4 2003) (en banc). They employed Hilts and others to drive the liquor over the Canadian border, without paying the required excise taxes. Ibid. The drivers avoided paying taxes by hiding the liquor in their vehicles and failing to declare the goods to Canadian customs officials. Id., at 333. During the time of petitioners’ smuggling operation, between 1996 and 2000, Canada heavily taxed the importation of alcoholic beverages. See 1997 S. C., ch. 36, §§ 21.1(1), 21.2(1); Excise Act Schedule 1.(1), R. S. C., ch. E-14 (1985); Excise Act 2001, Schedule 4, ch. 22, 2002 S. C. 239. Uncontested evidence at trial showed that Canadian taxes then due on alcohol purchased in the United States and transported to Canada were approximately double the liquor’s purchase. price. App. 65-66.

Before trial, petitioners moved to dismiss the indictment on the ground that it stated no wire fraud offense. The wire fraud statute prohibits the use of interstate wires to effect “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. § 1343 (2000 ed., Supp. II). Petitioners contended that the Government lacked a *354sufficient interest in enforcing the revenue laws of Canada, and therefore that they had not committed wire fraud. App: 48-57. The District Court denied the motion, and the case went to trial. The jury convicted petitioners of wire fraud.

Petitioners appealed their convictions to the United States Court of Appeals for the Fourth Circuit, again urging that the indictment failed to state a wire fraud offense. They argued that their prosecution contravened the common-law revenue rule, because it required the court to take cognizance of the revenue laws of Canada. Over Judge Hamilton’s dissent, the panel agreed and reversed the convictions. 305 F. 3d 291, 295 (2002). Petitioners also argued that Canada’s right to collect taxes from them was not “money or property” within the meaning of the wire fraud statute, but the panel unanimously rejected that argument. Id., at 294-295; id., at 299 (Hamilton, J., dissenting).

The Court of Appeals granted rehearing en banc, vacated the panel’s decision, and affirmed petitioners’ convictions. 336 F. 3d 321 (CA4 2003). It concluded that the common-law revenue rule, rather than barring any recognition of foreign revenue law, simply allowed courts to refuse to enforce the tax judgments of foreign nations, and therefore did not preclude the Government from prosecuting petitioners. Id., at 327-329. The Court of Appeals held as well that Canada’s right to receive tax revenue was “money or property” within the meaning of the wire fraud statute. Id., at 331-332.

We granted certiorari to resolve a conflict in the Courts of Appeals over whether a scheme to defraud a foreign government of tax revenue violates the wire fraud statute. 541 U. S. 972 (2004). Compare United States v. Boots, 80 F. 3d 580, 587 (CA1 1996) (holding that a scheme to defraud a foreign nation of tax revenue does not violate the wire fraud statute), with United States v. Trapilo, 130 F. 3d 547, 552-553 (CA2 1997) (holding that a scheme to defraud a foreign nation of tax revenue violates the wire fraud statute). We *355agree with the Court of Appeals that it does and therefore affirm the judgment below.1

I — I 1 — 1

We first consider whether petitioners’ conduct falls within the literal terms of the wire fraud statute. The statute prohibits using interstate wires to effect “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. § 1343 (2000 ed., Supp. II). Two elements of this crime, and the only two that petitioners dispute here, are that the defendant engage in a “scheme or artifice to defraud,” ibid., and that the “object of the fraud ... be ‘[money or] property’ in the victim’s hands,” Cleveland v. United States, 531 U. S. 12, 26 (2000).2 Petitioners’ smuggling operation satisfies both elements.

Taking the latter element first, Canada’s right to uncollected excise taxes on the liquor petitioners imported into Canada is “property” in its hands. This right is an entitlement to collect money from petitioners, the possession of which is “something of value” to the Government of Canada. McNally v. United States, 483 U. S. 350, 358 (1987) (internal *356quotation marks omitted). Valuable entitlements like these are “property” as that term ordinarily is employed. See Leocal v. Ashcroft, 543 U. S. 1, 9 (2004) (“When interpreting a statute, we must give words their ordinary or natural meaning” (internal quotation marks omitted)); Black’s Law Dictionary 1382 (4th ed. 1951) (defining “property” as “extending] to every species of valuable right and interest”). Had petitioners complied with this legal obligation, they would have paid money to Canada. Petitioners’ tax evasion deprived Canada of that money, inflicting an economic injury no less than had they embezzled funds from the Canadian treasury. The object of petitioners’ scheme was to deprive Canada of money legally due, and their scheme thereby had as its object the deprivation of Canada’s “property.”

The common law of fraud confirms this characterization of Canada’s right to excise taxes. The right to be paid money has long been thought to be a species of property. See 3 W. Blackstone, Commentaries on the Laws of England 153-155 (1768) (classifying a right to sue on a debt as personal property); 2 J. Kent, Commentaries on American Law *351 (same). Consistent with that understanding, fraud at common law included a scheme to deprive a victim of his entitlement to money. For instance, a debtor who concealed his assets when settling debts with his creditors thereby committed common-law fraud. 1 J. Story, Equity Jurisprudence § 378 (I. Redfield 10th rev. ed. 1870); Chesterfield v. Janssen, 28 Eng. Rep. 82, 2 Ves. Sen. 125 (ch. 1750); 1 S. Rapalje & R. Lawrence, A Dictionary of American and English Law 546 (1883). That made sense given the economic equivalence between money in hand and money legally due. The fact that the victim of the fraud happens to be the government, rather than a private party, does not lessen the injury.

Our conclusion that the right to tax revenue is property in Canada’s hands, contrary to petitioners’ contentions, is consistent with Cleveland, supra. In that case, the defendant, *357Cleveland, had obtained a video poker license by making false statements on his license application. Id., at 16-17. We held that a State’s interest in an unissued video poker license was not “property,” because the interest in choosing particular licensees was “‘purely regulatory’” and “[could not] be economic.” Id., at 22-23. We also noted that “the Government nowhere allege[d] that Cleveland defrauded the State of any money to which the State was entitled by law.” Ibid.

Cleveland is different from this case. Unlike a State’s interest in allocating a video poker license to particular applicants, Canada’s entitlement to tax revenue is a straightforward “economic” interest. There was no suggestion in Cleveland that the defendant aimed at depriving the State of any money due under the license; quite the opposite, there was “no dispute that [the defendant’s partnership] paid the State of Louisiana its proper share of revenue” due. Id., at 22. Here, by contrast, the Government alleged and proved that petitioners’ scheme aimed at depriving Canada of money to which it was entitled by law. Canada could hardly have a more “economic” interest than in the receipt of tax revenue. Cleveland is therefore consistent with our conclusion that Canada’s entitlement is “property” as that word is used in the wire fraud statute.

Turning to the second element at issue here, petitioners’ plot was a “scheme or artifice to defraud” Canada of its valuable entitlement to tax revenue. The evidence showed that petitioners routinely concealed imported liquor from Canadian officials and failed to declare those goods on customs forms. See 336 F. 3d, at 333. By this conduct, they represented to Canadian customs officials that their drivers had no goods to declare. This, then, was a scheme “designed to defraud by representations,” Durland v. United States, 161 U. S. 306, 313 (1896), and therefore a “scheme or artifice to defraud” Canada of taxes due on the smuggled goods.

*358Neither the antismuggling statute, 18 U. S. C. § 546,3 nor U. S. tax treaties, see Attorney General of Canada v. R. J. Reynolds Tobacco Holdings, Inc., 268 F. 3d 103, 115-119 (CA2 2001), convince us that petitioners’ scheme falls outside the terms of the wire fraud statute.4 Unlike the treaties and the antismuggling statute, the wire fraud statute punishes fraudulent use of domestic wires, whether or not such conduct constitutes smuggling, occurs aboard a vessel, or evades foreign taxes. See post, at 380, n. 9 (Ginsburg, J., dissenting) (noting that the antismuggling statute does not apply to this prosecution). Petitioners would be equally liable if they had used interstate wires to defraud Canada not of taxes due, but of money from the Canadian treasury. The wire fraud statute “applies without differentiation” to these two categories of fraud. Clark v. Martinez, 543 U. S. 371, 378 (2005). “To give these same words a different meaning *359for each category would be to invent a statute rather than interpret one.” Ibid. We therefore decline to “interpret [this] criminal statute more narrowly than it is written.” Brogan v. United States, 522 U. S. 398, 406 (1998).

III

We next consider petitioners’ revenue rule argument. Petitioners argue that, to avoid reading § 1343 to derogate from the common-law revenue rule, we should construe the otherwise-applicable language of the wire fraud statute to except frauds directed at evading foreign taxes. Their argument relies on the canon of construction that “[statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” United States v. Texas, 507 U. S. 529, 534 (1993) (internal quotation marks omitted). This presumption is, however, no bar to a construction that conflicts with a common-law rule if the statute “ ‘speak[s] directly’ to the question addressed by the common law.” Ibid.

Whether the wire fraud statute derogates from the common-law revenue rule depends, in turn, on whether reading §1343 to reach this prosecution conflicts with a well-established revenue rule principle. We clarified this constraint on the application of the nonderogation canon in United States v. Craft, 535 U. S. 274 (2002). The issue in Craft was whether the property interest of a tenant by the entirety was exempt from a federal tax lien. Id., at 276. We construed the federal tax lien statute to reach such a property interest, despite the tension between that construction and the common-law rule that entireties property enjoys immunity from liens, because this “common-law rule was not so well established with respect to the application of a federal tax lien that we must assume that Congress considered the impact of its enactment on the question now before us.” *360 Id., at 288.5 So too here, before we may conclude that Congress intended to exempt the present prosecution from the broad reach of the wire fraud statute, we must find that the common-law revenue rule clearly barred such a prosecution. We examine the state of the common law as of 1952, the year Congress enacted the wire fraud statute. See Neder v. United States, 527 U. S. 1, 22-23 (1999).6

The wire fraud statute derogates from no well-established revenue rule principle. We are aware of no common-law revenue rule case decided as of 1952 that held or clearly implied that the revenue rule barred the United States from prosecuting a fraudulent scheme to evade foreign taxes. The traditional rationales for the revenue rule, moreover, do not plainly suggest that it swept so broadly. We consider these two points in turn.

A

We first consider common-law revenue rule jurisprudence as it existed in 1952, the year Congress enacted §1343. Since the late 19th and early 20th century, courts have treated the common-law revenue rule as a corollary of the *361rule that, as Chief Justice Marshall put it, “[t]he Courts of no country execute the penal laws of another.” The Antelope, 10 Wheat. 66, 123 (1825). The rule against the enforcement of foreign penal statutes, in turn, tracked the common-law principle that crimes could only be prosecuted in the country in which they were committed. See, e. g., J. Story, Commentaries on the Conflict of Laws § 620, p. 840 (M. Bigelow ed. 8th ed. 1883). The basis for inferring the revenue rule from the rule against foreign penal enforcement was an analogy between foreign revenue laws and penal laws. See Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 290 (1888); Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 193, 219 (1932) (hereinafter Leflar).

Courts first drew that inference in a line of cases prohibiting the enforcement of tax liabilities of one sovereign in the courts of another sovereign, such as a suit to enforce a tax judgment.7 The revenue rule’s grounding in these cases shows that, at its core, it prohibited the collection of tax obligations of foreign nations. Unsurprisingly, then, the revenue rule is often stated as prohibiting the collection of foreign tax claims. See Brief for Petitioners 16 (noting that “[t]he most straightforward application of the revenue rule arises when a foreign sovereign attempts to sue directly in its own right to enforce a tax judgment in the courts of another nation”).8

*362The present prosecution is unlike these classic examples of actions traditionally barred by the revenue rule. It is not a suit that recovers a foreign tax liability, like a suit to enforce a judgment. This is a criminal prosecution brought by the United States in its sovereign capacity to punish domestic criminal conduct. Petitioners nevertheless argue that common-law . revenue rule jurisprudence as of 1952 prohibited such prosecutions. Revenue rule cases, however, do not establish that proposition, much less clearly so.

1

Petitioners first analogize the present action to several cases that have applied the revenue rule to bar indirect enforcement of foreign revenue laws, in contrast to the direct collection of a tax obligation. They cite, for example, a decision of an Irish trial court holding that a private liquidator could not recover assets unlawfully distributed and moved to Ireland by a corporate director, because the recovery would go to satisfy the company’s Scottish tax obligations. Peter Buchanan Ltd. v. McVey, 1955 A. C. 516, 529-530 (Ir. H. Ct. 1950), app. dism’d, 1955 A. C. 530 (Ir. Sup. Ct. 1951).9 *363The court found that “the sole object of the liquidation proceedings in Scotland was to collect a revenue debt,” because if the liquidator won, “every penny recovered after paying certain costs ... could be claimed by the Scottish Revenue.” Id., at 530. According to the Buchanan court, “[i]n every case the substance of the claim must be scrutinized, and if it then appears that it is really a suit brought for the purpose of collecting the debts of a foreign revenue it must be rejected.” Id., at 529.

Buchanan and the other cases on which petitioners rely cannot bear the weight petitioners place on them. Many of them were decided after 1952, too late for the Congress that passed the wire fraud statute to have relied on them. Others come from foreign courts. Drawing sure inferences regarding Congress’ intent from such foreign citations is perilous, as several of petitioners’ cases illustrate.10

*364More important, none of these cases clearly establishes that the revenue rule barred this prosecution. None involved a domestic sovereign acting pursuant to authority conferred by a criminal statute. The difference is significant. An action by a domestic sovereign enforces the sovereign’s own penal law. A prohibition on the enforcement of foreign penal law does not plainly prevent the Government from enforcing a domestic criminal law. Such an extension, to our knowledge, is unprecedented in the long history of either the revenue rule or the rule against enforcement of penal laws.

Moreover, none of petitioners’ cases (with the arguable exception of Banco Do Brasil, S. A. v. A. C. Israel Commodity Co., 12 N. Y. 2d 371, 190 N. E. 2d 235 (App. 1963)) barred an action that had as its primary object the deterrence and punishment of fraudulent conduct — a substantial domestic regulatory interest entirely independent of foreign tax enforcement. The main object of the action in each of those cases was the collection of money that would pay foreign tax claims. The absence of such an object in this action means that the link between this prosecution and foreign tax collection is incidental and attenuated at best, making it not plainly one in which “the whole object of the suit is to collect tax for a foreign revenue.” Buchanan, supra, at 529. Even those courts that as of 1952 had extended the revenue rule beyond its core prohibition had not faced a case closely *365analogous to this one — and thus we cannot say with any reasonable certainty whether Congress in 1952 would have considered this prosecution within the revenue rule.

Petitioners answer that the recovery of taxes is indeed the object of this suit, because restitution of the lost tax revenue to Canada is required under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. §§3663A-3664 (2000 ed. and Supp. II).11 We do not think it matters whether the provision of restitution is mandatory in this prosecution. Regardless, the wire fraud statute advances the Federal Government’s independent interest in punishing fraudulent domestic criminal conduct, a significant feature absent from all of petitioners’ revenue rule cases. The purpose of awarding restitution in this action is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct.

In any event, any conflict between mandatory restitution and the revenue rule would not change our holding today. If awarding restitution to foreign sovereigns were contrary to the revenue rule, the proper resolution would be to construe the Mandatory Victims Restitution Act not to allow such awards, rather than to assume that the later enacted restitution statute impliedly repealed §1343 as applied to frauds against foreign sovereigns.

2

We are no more persuaded by a second line of cases on which petitioners rely. Petitioners analogize the present case to early English common-law cases from which the revenue rule originally derived. Those early cases involved contract law, and they held that contracts executed with the purpose of evading the revenue laws of other nations were enforceable, notwithstanding the rule against enforcing con*366tracts with illegal purposes. See Boucher v. Lawson, Cas. T. Hard. 85, 89-90, 95 Eng. Rep. 53, 55-56 (K. B. 1734); Planche v. Fletcher, 1 Dougl. 251, 99 Eng. Rep. 164 (K. B. 1779). Petitioners argue that these cases demonstrate that “indirect” enforcement of revenue laws is at the very core of the common-law revenue rule, rather than at its margins.

The argument is unavailing. By the mid-20th century, the revenue rule had developed into a doctrine very different from its original form. Early revenue rule cases were driven by the interest in lessening the commercial disruption caused by the high tariffs of the day. As Lord Hardwicke explained, if contracts that aimed at circumventing foreign revenue laws were unenforceable, “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.” Boucher, supra, at 89, 95 Eng. Rep., at 56. By the 20th century, however, that rationale for the revenue rule had been supplanted. By then, as we have explained, courts had begun to apply the revenue rule to tax obligations on the strength of the analogy between a country’s revenue laws and its penal ones, see supra, at 360-361, superseding the original promotion-of-commerce rationale for the rule. Dodge, Breaking the Public Law Taboo, 43 Harv. Int’l L. J. 161, 178 (2002); Buchanan, 1955 A. C., at 522-524, 528-529. The early English cases rest on a far different foundation from that on which the revenue rule came to rest. They thus say little about whether the wire fraud statute derogated from the revenue rule in its mid-20th-century form.

3

Granted, this criminal prosecution “enforces” Canadian revenue law in an attenuated sense, but not in a sense that clearly would contravene the revenue rule. From its earliest days, the revenue rule never proscribed all enforcement of foreign revenue law. For example, at the same time they were enforcing domestic contracts that had the purpose of *367violating foreign revenue law, English courts also considered void foreign contracts that lacked tax stamps required under foreign revenue law. See Alves v. Hodgson, 7 T. R. 241, 243, 101 Eng. Rep. 953, 955 (K. B. 1797); Clegg v. Levy, 3 Camp. 166, 167, 170 Eng. Rep. 1343 (N. P. 1812). Like the present prosecution, cases voiding foreign contracts under foreign law no doubt “enforced” foreign revenue law in the sense that they encouraged the payment of foreign taxes; yet they fell outside the revenue rule’s scope. The line the revenue rule draws between impermissible and permissible “enforcement” of foreign revenue law has therefore always been unclear.

The uncertainty persisted in American courts that recognized the revenue rule. In one of the earliest appearances of the revenue rule in America, the Supreme Court of New Hampshire entertained an action that required extensive recognition of a sister State’s revenue laws. Henry v. Sargeant, 13 N. H. 321 (1843). There, the plaintiff sought damages, alleging that a Vermont selectman had imposed an illegal tax on him. Id., at 331. The court found that the revenue rule did not bar the action, id., at 331-332, though the suit required the court to enforce the revenue laws of Vermont, see id., at 335-338.

Likewise, in In re Hollins, 79 Misc. 200, 139 N. Y. S. 713 (Sur. Ct.), aff’d, 160 App. Div. 886, 144 N. Y. S. 1121 (1913), aff’d, 212 N. Y. 567, 106 N. E. 1034 (App. 1914) (per curiam), the court held that an estate executor could satisfy foreign taxes due on a decedent’s estate out of property of the estate, notwithstanding a legatee’s argument that the revenue rule barred authorizing such payments. 79 Misc., at 207-208, 139 N. Y. S., at 716-717. The court explained:

“While it is doubtless true that this court will not aid a foreign country in the enforcement of its revenue laws, it will not refuse to direct a just and equitable administration of that part of an estate within its jurisdiction merely because such direction would result in the *368enforcement of such revenue laws.” Id., at 208, 139 N. Y. S., at 717.

These cases demonstrate that the extent to which the revenue rule barred indirect recognition of foreign revenue laws was unsettled as of 1952. Following the reasoning of In re Hollins, for instance, Congress might well have thought that courts would enforce the wire fraud statute, even if doing so might incidentally recognize Canadian revenue law. The uncertainty highlights that “[indirect enforcement is . . . easier to describe than to define,” and “it is sometimes difficult to draw the line between an issue involving merely recognition of a foreign law and indirect enforcement of it.” 1 A. Dicey & J. Morris, Conflict of Laws 90 (L. Collins gen. ed. 13th ed. 2000). Even if the present prosecution is analogous to the indirect enforcement cases on which petitioners rely, those cases do not yield a rule sufficiently well established to narrow the wire fraud statute in the context of this criminal prosecution.

B

Having concluded that revenue rule jurisprudence is no clear bar to this prosecution, we next turn to whether the purposes of the revenue rule, as articulated in the relevant authorities, suggest differently. They do not.

First, this prosecution poses little risk of causing the principal evil against which the revenue rule was traditionally thought to guard: judicial evaluation of the policy-laden enactments of other sovereigns. See, e. g., Moore v. Mitchell, 30 F. 2d 600, 604 (CA2 1929) (L. Hand, J., concurring). As Judge Hand put it, allowing courts to enforce another country’s revenue laws was thought to be a delicate inquiry

“when it concerns the relations between the foreign state and its own citizens .... 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 *369the relations between the states themselves, with which courts are incompetent to deal, and which are intrusted to other authorities.” Ibid.

The present prosecution creates little risk of causing international friction through judicial evaluation of the policies of foreign sovereigns. This action was brought by the Executive to enforce a statute passed by Congress. In our system of government, the Executive is “the sole organ of the federal government in the field of international relations,” United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936), and has ample authority and competence to manage “the relations between the foreign state and its own citizens” and to avoid “embarass[ing] its .neighbors],” Moore, supra, at 604 (L. Hand, J., concurring); see also Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948). True, a prosecution like this one requires a court to recognize foreign law to determine whether the defendant violated U. S. law. But we may assume that by electing to bring this prosecution, the Executive has assessed this prosecution’s impact on this Nation’s relationship with Canada, and concluded that it poses little danger of causing international friction. We know of no common-law court that has applied the revenue rule to bar an action accompanied by such a safeguard, and neither petitioners nor the dissent directs us to any. The greater danger, in fact, would lie in our judging this prosecution barred based on the foreign policy concerns animating the revenue rule, concerns that we have “neither aptitude, facilities nor responsibility” to evaluate. Ibid.

More broadly, petitioners argue that the revenue rule avoids giving domestic effect to politically sensitive and controversial policy decisions embodied in foreign revenue laws, regardless of whether courts need pass judgment on such laws. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 448 (1964) (White, J., dissenting) (“[Cjourts customarily *370refuse 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”). This worries us little here. The present prosecution, if authorized by the wire fraud statute, embodies the policy choice of the two political branches of our Government — Congress and the Executive — to free the interstate wires from fraudulent use, irrespective of the object of the fraud. Such a reading of the wire fraud statute gives effect to that considered policy choice. It therefore poses no risk of advancing the policies of Canada illegitimately.

Still a final revenue rule rationale petitioners urge is the concern that courts lack the competence to examine the validity of unfamiliar foreign tax schemes. See, e. g., Leflar 218. Foreign law, of course, posed no unmanageable complexity in this case. The District Court had before it uncon-troverted testimony of a Government witness that petitioners’ scheme aimed at violating Canadian tax law. See App. 65-66.

Nevertheless, Federal Rule of Criminal Procedure 26.1 addresses petitioners’ concern by setting forth a procedure for interpreting foreign law that improves on those available at common law. Specifically, it permits 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.” By contrast, common-law procedures for dealing with foreign law — those available to the courts that formulated the revenue rule — were more cumbersome. See Advisory Committee’s Notes on Fed. Rule Crim. Proc. 26.1, 18 U. S. C. App., p. 1606 (noting that the rule improves on common-law procedures for proving foreign law). Rule 26.1 gives federal courts sufficient means to resolve the incidental foreign law issues, they may encounter in wire fraud prosecutions.

*371IV

Finally, our interpretation of the wire fraud statute does not give it “extraterritorial effect.”12 Post, at 378 (Ginsburg, J., dissenting). Petitioners used U. S. interstate wires to execute a scheme to defraud a foreign sovereign of tax revenue. Their offense was complete the moment they executed the scheme inside the United States; “[t]he wire fraud statute punishes the scheme, not its success.” United States v. Pierce, 224 F. 3d 158, 166 (CA2 2000) (internal quotation marks and brackets in original omitted); see Durland, 161 U. S., at 313 (“The significant fact is the intent and purpose”). This domestic element of petitioners’ conduct is what the Government is punishing in this prosecution, no less than, when it prosecutes a scheme to defraud a foreign individual or corporation, or a foreign government acting as a market participant. See post, at 379, n. 8 (Ginsburg, J., dissenting) (noting that such prosecutions of foreign individuals, corporations, and governments are domestic applications of the wire fraud statute).13 In any event, the wire fraud statute punishes frauds executed “in interstate or for*372eign commerce,” 18 U. S. C. § 1843 (2000 ed., Supp. II), so this is surely not a statute in which Congress had only “domestic concerns in mind.” Small v. United States, post, at 388.

* *

It may seem an odd use of the Federal Government’s resources to prosecute a U. S. citizen for smuggling cheap liquor into Canada. But the broad language of the wire fraud statute authorizes it to do so, and no canon of statutory construction permits ■ us to read the statute more narrowly. The judgment of the Court of Appeals is affirmed.14

It is so ordered.

Justice Ginsburg,

with whom Justice Breyer joins, and with whom Justice Scalia and Justice Souter join as to Parts II and III, dissenting.

This case concerns extension of the “wire fraud” statute, 18 U. S. C. § 1343 (2000 ed., Supp. II), to a scenario extraterritorial in significant part: The Government invoked the statute to reach a scheme to smuggle liquor from the United States into Canada and thereby deprive Canada of revenues due under that nation’s customs and tax laws. Silent on its application to activity culminating beyond our borders, the statute prohibits “any scheme” to defraud that employs in its execution communication through interstate or interna*373tional wires. A relevant background norm, known as the common-law revenue rule, bars suit in one country to enforce another country’s tax laws.

The scheme at issue involves liquor purchased from discount sellers in Maryland, trucked to New York, then smuggled into Canada to evade Canada’s hefty tax on imported alcohol.1 Defendants below, petitioners here, were indicted under § 1343 for devising a scheme “to defraud the governments of Canada and the Province of Ontario of excise duties and tax revenues relating to the importation and sale of liquor.” App. to Pet. for Cert. 58a. Each of the six counts in question was based on telephone calls between New York and Maryland. Id., at 60a-64a.

The Court today reads the wire fraud statute to draw into our courts, at the prosecutor’s option, charges that another nation’s revenue laws have been evaded. The common-law revenue rule does not stand in the way, the Court instructs, for that rule has no application to criminal prosecutions under the wire fraud statute.

As I see it, and as petitioners urged, Reply Brief 17-19, the Court has ascribed an exorbitant scope to the wire fraud statute, in disregard of our repeated recognition that “Congress legislates against the backdrop of the presumption against extraterritoriality.” See EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (ARAMCO); Small v. United States, post, at 388-389 (The Court has “adopt[ed] the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.”); Reply Brief 17, n. 23 (“This prosecution clearly gives the wire fraud statute extraterritorial effect in that ‘[t]he actions in [Canada] are ... most naturally understood as the kernel of’ Petitioners’ alleged fraud.” (quoting Sosa v. Alvarez- *374 Machain, 542 U. S. 692, 700-701 (2004))).2 Notably, when Congress explicitly addressed international smuggling, see 18 U. S. C. § 546, it provided for criminal enforcement of the customs laws of a foreign nation only when that nation has a reciprocal law criminalizing smuggling into the United States. Currently, Canada has no such reciprocal law.,

Of overriding importance in this regard, tax collection internationally is an area in which treaties hold sway. See Attorney General of Canada v. R. J. Reynolds Tobacco Holdings, Inc., 268 F. 8d 103, 115-119 (CA2 2001) (referencing tax treaties to which the United States is a party). There is a treaty between the United States and Canada regarding the collection of taxes, but that accord requires certification by the taxing nation that the taxes owed have been “finally determined.” See Protocol Amending the Convention with Respect to Taxes on Income and on Capital, Sept. 26, 1980, S. Treaty Doc. No. 104-4, 2030 U. N. T. S. 236, 245, Art. 15, ¶ 2 (entered into force Nov. 9, 1995) (hereinafter Protocol). Moreover, the treaty is inapplicable to persons, like petitioners in this case, who are United States citizens at the time that the tax liability is incurred. Id., at 246, Art. 15, ¶ 8.

*375Today’s novel decision is all the more troubling for its failure to take account of Canada’s primary interest in the matter at stake. United States citizens who have committed criminal violations of Canadian tax law can be extradited to stand trial in Canada.3 Canadian courts are best positioned to decide “whether, and to what extent, the defendants have defrauded the governments of Canada and Ontario out of tax revenues owed pursuant to their own, sovereign, excise laws.” 336 F. 3d 321, 343 (CA4 2003) (en banc) (Gregory, J., dissenting).

I

The Government’s prosecution of David Pasquantino, Carl Pasquantino, and Arthur Hilts for wire fraud was grounded in Canadian customs and tax laws. The wire fraud statute, 18 U. S. C. § 1343, required the Government to allege and prove that the defendants engaged in a scheme to defraud a victim — here, the Canadian Government — of money or property. See ante, at 356 (describing Canada as the “victim” of a scheme having “as its object the deprivation of Canada’s ‘property’ ”). To establish the fraudulent nature of the defendants’ scheme and the Canadian Government’s entitlement to the money withheld by the defendants, the United States offered proof at trial that Canada imposes import duties on liquor, and that the defendants intended to evade those duties. See App. to Pet. for Cert. 58a; App. 65-74. The defendants’ convictions for wire fraud therefore resulted from, and could not have been obtained without proof of, their intent to violate Canadian revenue laws. See United States v. Pierce, 224 F. 3d 158, 166-168 (CA2 2000) (“If no Canadian duty or tax actually existed, the [defendants] were no more guilty of wire fraud than they would have been had *376they used the wires” to smuggle liquor into New York City, “in the sincere but mistaken belief that New York City imposes a duty on such . . . shipments.”).

The United States Government’s reliance on Canadian customs and tax laws continued at sentencing. The United States Sentencing Guidelines mandated that the defendants be sentenced on the basis of, among other things, the amount by which the defendants defrauded the Canadian Government. See United States Sentencing Commission, Guidelines Manual §2Fl.l(b)(l) (Nov. 2000). Accordingly, the District Court calculated the number of cases of liquor smuggled into Canada and the aggregate amount of import duties evaded by the defendants. The court concluded that the Pasquantinos avoided over $2.5 million in Canadian duties, and Hilts, over $1.1 million. See App. 97-101, 104-105.4 The resulting offense-level increases yielded significantly *377longer sentences for the defendants.5 As Judge Gregory-stated in dissent below, the fact that “the bulk of the defendants’ sentences were related, not to the American crime of wire fraud, but to the Canadian crime of tax evasion,” shows that “this case was primarily about enforcing Canadian law.” 336 F. 3d, at 342-343.

Expansively interpreting the text of the wire fraud statute, which prohibits “any scheme or artifice to defraud, or for obtaining money or property by means of... fraudulent pretenses,” the Court today upholds the Government’s deployment of §1343 essentially to enforce foreign tax law. This Court has several times observed that the wire fraud statute has a long arm, extending to “everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” Durland v. United States, 161 U. S. 306, 313 (1896). But the Court has also recognized that incautious reading of the statute could dramatically expand the reach of federal criminal law, and we have refused to apply the proscription exorbitantly. See McNally v. United States, 483 U. S. 350, 360 (1987) (refusing *378to construe 18 U. S. C. § 1341, the mail fraud statute, to reach corruption in local government, stating: “[W]e read §1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.”); see also Cleveland v. United States, 531 U. S. 12, 24-25 (2000) (holding that § 1341 does not reach schemes to make false statements on a state license application, in part based on reluctance to “approve a sweeping expansion of federal criminal jurisdiction in the absence of a clear statement by Congress”).6

Construing § 1343 to encompass violations of foreign revenue laws, the Court ignores the absence of anything signaling Congress’ intent to give the statute such an extraordinary extraterritorial effect.7 “It is a longstanding principle of American law,” ARAMCO, 499 U. S., at 248, that Congress, in most of its legislative endeavors, “is primarily concerned with domestic conditions,” ibid, (quoting Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949)). See also Small, post, at 388 (interpreting the phrase “convicted in any court,” 18 U. S. C. § 922(g)(1), in light of the “commonsense notion” that Congress ordinarily intends statutes to have only domestic application (quoting Smith v. United States, 507 U. S. 197, 204, n. 5 (1993))). Absent a clear statement of “the affirmative intention of the Congress,” Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957), this Court ordinarily does not read statutes to reach conduct that is “the primary concern of a foreign country,” Foley Bros., 336 U. S., at 286; cf. F. Hoffmann-La Roche Ltd v. Empagran *379 S. A., 542 U. S. 155, 164 (2004) (referring to presumption that “legislators take account of the legitimate sovereign interests of other nations when they write American laws”).

Section 1343, which contains no reference to foreign law as an element of the domestic crime of wire fraud, contrasts with federal criminal statutes that chart the courts’ course in this regard. See, e. g., 18 U. S. C. § 1956(c)(1) (defendant must know that transaction involved the proceeds of activity “that constitutes a felony under State, Federal, or foreign law”); 16 U. S. C. § 3372(a)(2)(A) (banning importation of wildlife that has been “taken, possessed, transported, or sold in violation of any ... foreign law”). These statutes indicate that Congress, which has the sole authority to determine the extraterritorial reach of domestic laws, is fully capable of conveying its policy choice to the Executive and the courts. I would not assume from legislative silence that Congress left the matter to executive discretion.8

The presumption against extraterritoriality, which guides courts in the absence of congressional direction, provides ample cause to conclude that § 1343 does not extend to the instant scheme. Moreover, as to foreign customs and tax laws, there is scant room for doubt about Congress’ general *380perspective: Congress has actively indicated, through both domestic legislation and treaties, that it intends “strictly [to] limit the parameters of any assistance given” to foreign nations. Attorney General of Canada v. R. J. Reynolds Tobacco Holdings, Inc., 268 F. 3d, at 119; see also United States v. Boots, 80 F. 3d 580, 588 (CA1 1996) (“National [foreign] policy judgments . . . could be undermined if federal courts were to give general effect to wire fraud prosecutions for ... violating the revenue laws of any country.”).

First, Congress has enacted a specific statute criminalizing offenses of the genre committed by the defendants here: 18 U. S. C. § 546 prohibits transporting goods “into the territory of any foreign government in violation of the laws there in force.” Section 546’s application, however, is expressly conditioned on the foreign government’s enactment of reciprocal legislation prohibiting smuggling into the United States. See ibid, (prohibition applies “if under the laws of such foreign government any penalty or forfeiture is provided for violation of the laws of the United States respecting the customs revenue”). The reciprocity limitation reflects a legislative determination that this country should not provide other nations with greater enforcement assistance than they give to the United States. The limitation also cabins the Government’s discretion as to which nation’s customs laws to enforce, thereby avoiding the appearance of prosecutorial overreaching. See 305 F. 3d 291, 297, n. 9 (CA4 2002) (Gregory, J.) (“Where do we draw the line as to which countries’ laws we will help enforce?”), vacated and reh’g en banc granted, 2003 U. S. App. LEXIS 585, *1 (CA4, Jan. 14, 2003). Significantly, Canada has no statute criminalizing smuggling into the United States, rendering §546 inapplicable to schemes resembling the one at issue here.9

*381Second, the United States and Canada have negotiated, and the Senate has ratified, a comprehensive tax treaty, in which both nations have committed to providing collection assistance with respect to each other’s tax claims. See Protocol Art. 15. Significantly, the Protocol does not call upon either nation to interpret or calculate liability under the other’s tax statutes; it applies only to tax claims that have been fully and finally adjudicated under the law of the requesting nation. Further, the Protocol bars assistance in collecting any claim against a citizen or corporation of “the requested State.” Id., at 246, Art. 15, ¶ 8(a). These provisions would preclude Canada from obtaining United States assistance in enforcing its claims against the Pasquantinos and Hilts. I would not assume that Congress understood § 1343 to provide the assistance that the United States, in the considered foreign policy judgment of both political branches, has specifically declined to promise.

II

Complementing the principle that courts ordinarily should await congressional instruction before giving our laws extraterritorial thrust, the common-law revenue rule holds that one nation generally does not enforce another’s tax laws. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 448 (1964) (White, J., dissenting) (noting that “our courts customarily refuse to enforce the revenue and penal laws of a foreign state”); cf. Milwaukee County v. M. E. White Co., 296 U. S. 268, 275-276 (1935). The Government argues, and the Court accepts, that domestic wire fraud prosecutions premised on violations of foreign tax law do not implicate the revenue rule because the court, while it must “recognize foreign [revenue] law to determine whether the defendant violated U. S. law,” ante, at 369, need only “enforce” foreign law “in an attenuated sense.” See ante, at 366; Brief for United States 17-19. As discussed above, however, the defendants’ conduct arguably fell within the scope of § 1343 only because *382of their purpose to evade Canadian customs and tax laws; shorn of that purpose, no other aspect of their conduct was criminal in this country. See supra, at 375-377; Boots, 80 F. 3d, at 587 (“[Upholding defendants’ section 1343 conviction would amount ... to penal enforcement of Canadian customs and tax laws.”). It seems to me unavoidably obvious, therefore, that this prosecution directly implicates the revenue rule. It is equally plain that Congress did not endeavor, by enacting § 1343, to displace that rule.

The application of the Mandatory Victims Restitution Act of 1996,18 U. S. C. § 3663A, to wire fraud offenses is corroborative. Section 3663A applies to all “offense[s] against property,” § 3663A(c)(l)(A)(ii), and directs that “Notwithstanding any other provision of law . . . the court shall order . . . that the defendant make restitution to the victim of the offense,” §3663A(a)(l) (emphasis added). The Government acknowledges, however, that it “did not urge the district court to order restitution in this case on the theory that it was not ‘appropriate ... since the victim is a foreign government and the loss derives from tax laws of the foreign government.’ ” Brief for United States 19-20 (quoting Letter from United States Attorney S. Schenning to United States District Chief Judge J. Motz, Feb. 16, 2001, App. 106). The Government now disavows this concession. See Tr. of Oral Arg. 36 (While “the prosecutor did concede below that restitution was not appropriately ordered,” it is in fact “[t]he position of the United States ... that restitution under the mandatory statute should be ordered and it does not infringe the revenue rule.”). Nevertheless, the very fact that the Government effectively invited the District Court to overlook the mandatory restitution statute out of concern for the revenue rule is revealing. It further demonstrates that the Government’s expansive reading of § 1343 warrants this Court’s disapprobation.

Any tension between § 3663A and the wire fraud statute, the Government suggests and the Court accepts, would be *383relieved if this Court construed § 3663A to exclude restitution that might encounter a revenue rule shoal. See ante, at 365; Brief for United States 21. Congress, however, has expressed with notable clarity a policy of mandatory restitution in all wire fraud prosecutions. In contrast, Congress was “quite ambiguous” concerning §1343’s coverage of schemes to evade foreign taxes. Tr. of Oral Arg. 38. The Mandatory Victims Restitution Act, in my view, is an additional indicator that “Congress ... [did not] envision foreign taxes to be the object of [a] scheme to defraud,” id., at 35-36, and I would construe § 1343 accordingly.

M HH 1 — I

Finally, the rule of lenity counsels against adopting the Court’s interpretation of § 1343. It is a “close question” whether the wire fraud statute’s prohibition of “any scheme ... to defraud” includes schemes directed solely at defrauding foreign governments of tax revenues. See id., at 33. We have long held that, when confronted with “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.” McNally, 483 U. S., at 359-360; see United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952).

This interpretive guide is particularly appropriate here. Wire fraud is a predicate offense under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1961(1) (2000 ed., Supp. II), and the money laundering statute, § 1956(c)(7)(A) (2000 ed.). See Cleveland, 531 U. S., at 25. A finding that particular conduct constitutes wire fraud therefore exposes certain defendants to the severe criminal penalties and forfeitures provided in both RICO, see §1963 (2000 ed.), and the money laundering statute, § 1956(a), (b) (2000 ed. and Supp. II).

* • * *

*384For the reasons stated, I would hold that § 1343 does not extend to schemes to evade foreign tax and customs laws. I would therefore reverse the judgment of the Court of Appeals.

ALARCON, Circuit Judge:

Laurence John Layton (Layton) appeals from the final judgment entered following his conviction on charges stemming from the November 1978 killing of Congressman Leo J. Ryan at the Port Kaituma airstrip in the Republic of Guyana. Layton challenges his conviction on numerous grounds, each of which is addressed below.

In a separate appeal, Layton challenges the district court’s denial of his motion under 28 U.S.C. § 2255 to vacate and set aside his conviction. In his motion, Layton argued that he had received ineffective assistance of counsel at trial, in violation of the sixth amendment.

We ordered the consolidation of Layton’s two appeals. We address each in this opinion. For the reasons set forth below, we *1393affirm both the judgment of conviction and the district court’s denial of Layton’s motion under § 2255.

APPEAL NO. 87-1071

I. PERTINENT FACTS

The Peoples Temple was a religious organization composed primarily of American citizens. In 1977, under the leadership of Jim Jones, the Peoples Temple established a settlement of more than 1,000 people in a remote jungle area of the Republic of Guyana. The settlement was known as Jones-town. Layton was a member of the Temple and resided at Jonestown.

On November 1, 1978, Congressman Leo J. Ryan, U.S. Representative from the 11th Congressional District of California, notified Jones that Ryan would be visiting Jonestown to investigate allegations of poor living conditions and mistreatment of residents. Jones opposed Ryan’s visit and announced his opposition in several tape-recorded speeches delivered to the Jonestown community in the days preceding Ryan’s arrival. In certain of the speeches, Jones intimated that Ryan would suffer physical harm if he insisted on entering Jonestown. Jones also prepared and circulated among the Jonestown residents a petition opposing Ryan’s visit. Layton signed the petition.

On November 17, 1978, Ryan and his party, which included media representatives and concerned relatives of Jonestown residents, arrived in Jonestown. On November 17 and November 18, Ryan met with many of the residents. Some of them requested assistance in leaving Jonestown. In the afternoon of November 18, the members of Ryan’s party and the departing residents boarded a truck to be transported to the Port Kaituma airstrip, approximately six miles from Jonestown. At about that time, Layton was seen conversing with Jones. Layton then embraced Jones, obtained a rain poncho, and announced to the departing group that he, Layton, also wished to leave Jonestown. The departing group expressed concern that Layton was merely feigning his desire to leave and that his true intent was to harm those departing from the settlement. Layton was searched and no weapon was found. Ryan then permitted Layton to join the group on the truck.

At about this time, a Jonestown resident attacked Ryan with a knife. Ryan escaped without injury. Ryan had been planning to remain in Jonestown for another night. After the knife attack, he decided to leave with the other members of his party.

The truckload of people departed for the Port Kaituma airstrip. As the truck approached the gate to Jonestown, Joe Wilson boarded. Wilson, a leader of the Jonestown security force, was armed with a gun. En route to the airstrip, Layton talked with another member of Jones-town’s security force, who was also a passenger on the truck. Layton himself had been a member of the security force and had been trained in the use of handguns. The security force was under Jones’ control.

Ryan had requested two planes to transport the departing group from Port Kaitu-ma to Georgetown, Guyana. The two planes — a nineteen-seat Otter and a six-seat Cessna — landed at the airstrip about 20 minutes after the arrival of the truck carrying the Ryan party.

Ryan’s aide assigned seats on the two planes. Layton insisted on being seated in the plane that was scheduled to depart first, the small Cessna.

Prior to boarding the Cessna, Layton was seen conversing with Joe Wilson. Wilson placed his hand underneath ■ the rain poncho Layton was wearing. Ryan and several others began searching those waiting to board the Cessna. Layton left the line and boarded the plane without being searched. Layton was then told to leave the plane and to submit to a search. After first protesting that he had already been searched, Layton complied with the direction. Because no weapons were found on Layton’s person, he was permitted to reboard the Cessna.

When boarding of the Cessna was completed, the airplane taxied down the runway in preparation for take-off. Boarding of the Otter was still in progress. A trac*1394tor-trailer carrying a group of Peoples Temple members drove in front of the Cessna and headed toward the Otter. The people on the tractor-trailer began shooting at the Otter, The bullets struck passengers seated inside the plane as well as those waiting to board. Ryan, who was standing outside the Otter, was killed in the attack. Richard Dwyer, United States Deputy Chief of Mission to Guyana, was wounded.

When Layton heard the shots being fired at the Otter, he yelled at the pilot of the Cessna to proceed with the take-off. Lay-ton then pulled a gun hidden between his legs and shot two people seated near him. He fired the weapon at the chest of a third person but the gun misfired. Two passengers wrestled with Layton and disarmed him. Two Guyanese civilians then took Layton to the constabulary at Port Kaitu-ma, where Guyanese officials took him into custody.

In an indictment filed October 9, 1980, Layton was charged with conspiring to kill a member of Congress (Ryan), in violation of 18 U.S.C. § 351(d); aiding and abetting in the killing of a member of Congress, in violation of 18 U.S.C. §§ 2 and 351(a); conspiring to murder an internationally protected person (Dwyer), in violation of 18 U.S.C. § 1117; and aiding and abetting in the attempted murder of an internationally protected person, in violation of 18 U.S.C. § 1116(a). At the time the indictment was filed, Layton was being held in custody in Guyana, in connection with charges filed against him in that country. He returned to the United States, in the company of FBI agents, on or about November 20, 1980.

Trial commenced on July 21, 1981. A mistrial was declared on September 26, 1981, when the jury announced that it was unable to reach a verdict. Following two interlocutory appeals by the Government, a second trial commenced on September 18, 1986. On December 1, 1986, the jury returned a verdict of guilty on all counts. On March 3, 1987, Layton was sentenced to fifteen years imprisonment on counts 1, 3, and 4, and to life in prison on count 2.

Additional facts are recited where appropriate in Part III infra.

II. JURISDICTION

The district court’s jurisdiction is addressed in Part III(A) infra. We have jurisdiction over Layton’s appeal from the final judgment entered in this matter pursuant to 28 U.S.C. § 1291 (1982).

III. DISCUSSION

A. Did The District Court Have Subject Matter Jurisdiction To Try The Charged Offenses?

Layton filed a motion in the district court for dismissal based on lack of subject matter jurisdiction. The district court concluded that it had jurisdiction over the charges contained in the indictment. United States v. Layton, 509 F.Supp. 212 (N.D.Cal.1981). Layton appealed from the district court’s ruling. We dismissed the appeal as premature, indicating that Layton could challenge subject matter jurisdiction on appeal from final judgment. United States v. Layton, 645 F.2d 681 (9th Cir.), cert. denied, 452 U.S. 972, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). Layton now renews the arguments he presented to the district court. We review a district court’s assumption of jurisdiction de novo. United States v. Hill, 719 F.2d 1402, 1404 (9th Cir.1983).

For the following reasons, we hold that the district court properly exercised subject matter jurisdiction over each count in the indictment.

1. Counts One and Two

Count One charged Layton with conspiracy to kill Congressman Ryan, in violation of 18 U.S.C. § 351(d). Count Two charged Layton with aiding and abetting in the killing of Ryan, in violation of 18 U.S.C. §§ 351(a) and 2. Sections 351(a) and (d) provide:

(a) Whoever kills any individual who is a Member of Congress ... shall be punished as provided by sections 1111 and 1112 of this title.

*1395(d) If two or more persons conspire to kill ... any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life or (2) by death or imprisonment for any term of years or for life, if death results to such individual.

Layton argues that § 351 cannot be applied in this case because the acts in question occurred outside the United States and Congress did not intend § 351 to be applied extraterritorially.

Where the language of a criminal statute does not indicate whether the statute is to be applied to extraterritorial conduct, resolution of the question “depends upon the purpose of Congress as evinced by the description and nature of the crime.” United States v. Bowman, 260 U.S. 94, 97, 43 S.Ct. 39, 40-41, 67 L.Ed. 149 (1922). When a statute describes a crime which is not logically dependent on its locality but which, instead, injures the government wherever the crime occurs, the statute will be applied to U.S. citizens who violate its provisions while outside United States territory. Id. The clearest statement of this principle appears in Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), where the Court declared: “[A] criminal statute dealing with acts that are directly injurious to the government, and are capable of perpetration without regard to particular locality, is to be construed as applicable to citizens of the United States upon the high seas or in a foreign country, though there be no express declaration to that effect.” Id. at 73-74, 61 S.Ct. at 928.

We have applied the foregoing principles to federal statutes prohibiting the theft of government property, see United States v. Cotten, 471 F.2d 744 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973), and the concealment of assets in connection with a bankruptcy proceeding, Stegeman v. United States, 425 F.2d 984 (9th Cir.) (en banc), cert. denied, 400 U.S. 837, 91 S.Ct. 74, 27 L.Ed.2d 70 (1970). Because the statutes at issue in each case were “enacted to serve important interests of government,” Stegeman, 425 F.2d at 986, and jurisdiction was “not logically dependent upon the locality of violation,” Cotten, 471 F.2d at 750, we held that Congress must have intended the statutes to apply regardless of where the proscribed acts occurred.

The act proscribed by § 351(a)—the killing of a member of Congress—is “directly injurious to the government, and [is] capable of perpetration without regard to particular locality.” Skiriotes, 313 U.S. at 73-74, 61 S.Ct. at 927-28. The killing of a member of Congress obstructs the governing process, whether the act occurs within or without the United States. Like the statute prohibiting theft of government property, section 351(a) “prohibits conduct which is obstructive of the functions of government. The locus of the conduct is not relevant to the end sought by the enactment.” Cotten, 471 F.2d at 751.

As the district court noted, it would be a “perversion of logic” to infer extraterritorial jurisdiction under statutes governing theft of government property or concealment of assets in bankruptcy yet decline to infer such jurisdiction under a statute prohibiting the killing of a member of Congress. 509 F.Supp. at 220-21. Section 351(a), therefore, should be construed to apply extraterritorially.

Because the underlying substantive statute, § 351(a), reaches extraterritorial conduct, related statutes governing conspiracy and aiding and abetting should also be construed to apply extraterritorially. See Bowman, 260 U.S. at 96, 101-02, 43 S.Ct. at 40, 42 (discussing conspiracy and substantive provisions of anti-fraud statute without distinction, and upholding extraterritorial application of conspiracy provision); Cotten, 471 F.2d at 749 (focusing discussion on extraterritorial application of substantive theft statute because “there can be no serious doubt as to the extraterritorial applicability of the conspiracy section”); Brulay v. United States, 383 F.2d 345, 350 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967) (Congress *1396intended substantive statute to apply to conduct outside the United States, hence corresponding conspiracy statute applied extraterritorially). Accordingly, we -reject Layton’s argument that § 351(d) applies only when the overt act required thereunder occurs within the United States.

2. Counts Three and Four

Count Three charged Layton with conspiracy to kill Deputy Chief of Mission Richard Dwyer, an internationally protected person, in violation of 18 U.S.C. § 1117. Count Four charged Layton with aiding and abetting the attempted murder of Dwyer, in violation of 18 U.S.C. §§ 2 and 1116. Section 1116(a) makes it a crime to “kill[] or attempt[] to kill a foreign official, official guest, or internationally protected person.” 1 Section 1116(c) provides: “If the victim of an offense under subsection (a) is an internationally protected person, the United States may exercise jurisdiction over the offense if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender.” Section 1117 forbids conspiracies to commit an act prohibited by § 1116.

Layton argues that § 1116(c) — which requires the offender’s presence in the United States — identifies the only circumstance in which the courts may exercise jurisdiction over extraterritorial conduct violating § 1116(a). Since he was not present in the United States at the time he was indicted, Layton argues, subject matter jurisdiction is lacking under § 1116(a) and under § 1117, the corresponding conspiracy statute.

The legislative history of § 1116, however, “makes it abundantly clear that the intent of Congress was to pass the legislation necessary to fulfill the obligations of the United States under two treaties” concerning the prevention and punishment of terrorism and crimes against internationally protected persons. 509 F.Supp. at 221-22. “Congress, moreover, clearly intended to enforce the obligations of the United States under the treaties completely.” Id. at 222. One of these instruments, a U.N. treaty, required signatory states to enact any legislation necessary to establish jurisdiction over specified crimes, including those with which Layton was charged, “when the alleged offender is a national of that State” or “when the crime is committed against an internationally protected person ... who enjoys his status as such by virtue of functions which he exercises on behalf of that State.” Id. at 222-23 (quoting “Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons,” Art. 3). Congress clearly intended that § 1116 be enforced in such circumstances.

In a separate section, the U.N. treaty required signatory States “to establish jurisdiction over these crimes in cases where the alleged offender is present in its territory and [the State] does not extradite him” to a State that could assert jurisdiction based on the circumstances described above. Id. at 223. Congress fulfilled this obligation by enacting § 1116(c). The fact that Congress expressly mentioned only this jurisdictional basis can be explained. “The other ... bases for jurisdiction under the U.N. treaty ... are all tied to some aspect of the events which make up the alleged offense.” Id. at 223. On the other hand, jurisdiction based on the presence of the alleged offender

is not grounded on any characteristics of the event itself, but on the location, at any time after the fact, of the alleged offender. This type of jurisdiction had its origins in the special problems and characteristics of piracy. It is only in recent times that nations have begun to extend this type of jurisdiction to other crimes.... It is not surprising, then, that Congress would explicitly write into this legislation the extension of this type of jurisdiction over another type of crime — terrorism—now considered by *1397the international community to be deserving of treatment in a manner traditionally reserved for piracy.

Id.

Moreover, it would have made no sense for Congress to enact a statute forbidding the murder or attempted murder of an internationally protected person representing the United States, which crime would likely occur outside the territory of the United States, yet not intend that the prohibition apply to extraterritorial acts.

In summary, we agree with the district court that the most reasonable reading of the statute, “in the context of its purpose and origins, is that Congress intended to meet its obligation to take jurisdiction under each of the circumstances delineated in” the U.N. treaty. Id. at 224. Since Layton is a national of the United States, and since Dwyer was an internationally protected person by virtue of the functions he exercised on behalf of the United States, the district court would have had jurisdiction to try Layton for the substantive offenses of murdering or attempting to murder Dwyer, even if those acts had occurred outside the territory of the United States. Layton was not charged with these substantive offenses but with conspiracy to murder and with aiding and abetting the attempted murder. As discussed in Part 111(A)(1) supra, because jurisdiction would be proper over the underlying substantive offenses, it is also proper over the related offenses with which Lay-ton was charged.

B. Did The District Court Err In Admitting Jones’ Pre-Arrival Speeches Into Evidence?

1. Does Fed.R.Evid. 801(d)(2)(E) permit the admission of statements made during the course and in furtherance of a conspiracy that was not charged and that had a legal objective?

Prior to the commencement of Layton’s second trial, the Government sought an in limine ruling from the district court concerning the admissibility of certain tape-recorded speeches made by Jones during the days immediately preceding the arrival of the Ryan delegation (the “pre-arrival speeches”). The Government contended that the pre-arrival speeches were admissible as eoconspirator’s statements under Fed.R.Evid. 801(d)(2)(E).2 The district court ruled that the pre-arrival speeches were inadmissible because they were not made “in furtherance of” a conspiracy to kill Ryan.

In response to the Government’s interlocutory appeal, we ruled that the pre-arrival speeches were in furtherance of a conspiracy to kill Ryan, if indeed such a conspiracy existed when the pre-arrival speeches were made. Because the district court’s ruling did not clearly indicate whether the court had found that such a conspiracy was in existence at the time the pre-arrival speeches were made, we remanded for a resolution of that question. United States v. Layton, 720 F.2d 548, 558 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984).

On remand, applying the “independent evidence” rule that prevailed in this circuit prior to the decision in Bourjaily v. United States, 107 S.Ct. 2775 (1987), the district court found that the Government had failed to proffer sufficient independent evidence to show that a conspiracy to kill Ryan existed when the pre-arrival speeches were made. The court, therefore, ruled initially that the pre-arrival speeches would be excluded.

Later, the district court reconsidered the admissibility of the pre-arrival speeches. The court found that the Government had proffered sufficient evidence to establish that Jones and Layton had participated in a conspiracy to prevent the Ryan delegation from discovering the truth about the conditions at Jonestown. The district court concluded that Rule 801(d)(2)(E) authorizes the admission of a coconspirator’s statements *1398made during the course and in furtherance of any common enterprise involving the defendant and the declarant, provided that such common enterprise was “factually intertwined” with the charged conspiracy. Based on this construction of Rule 801(d)(2)(E), the court admitted into evidence the pre-arrival speeches.

Layton argues that the district court “erred in applying the co-conspirator exception ... to legal conduct not alleged in the indictment.” He contends that Rule 801(d)(2)(E) is inapplicable unless the statement sought to be admitted was made during the course and in furtherance of either (1) the charged conspiracy, (2) a conspiracy underlying the charged substantive offense, or (3) a conspiracy to accomplish an illegal objective or to accomplish a legal objective by illegal means. Layton argues that the cases on which the district court relied are distinguishable and not binding in this circuit.

Whether the district court correctly construed Rule 801(d)(2)(E) is a question of law we review de novo. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984); United States v. McClintock, 748 F.2d 1278, 1287 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985).

Statements of a coconspirator qualify as nonhearsay under Rule 801(d)(2)(E) if they were made during the course and in furtherance of a “concert of action” between the declarant and the defendant. United States v. Williams, 435 F.2d 642, 645 (9th Cir.1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533 (1971); Fuentes v. United States, 283 F.2d 537, 539-40 (9th Cir.1960). A coconspirator’s statement is admissible upon proof that it was made in furtherance of a conspiracy, notwithstanding the fact that the indictment does not contain a conspiracy count. United States v. Gonzalez, 715 F.2d 1411, 1412 (9th Cir.1983) (quoting Williams, 435 F.2d at 645). “[T]he question is merely whether there was proof of a sufficient concert of action to show the individuals to have been engaged in a joint venture.” United States v. Everidge, 488 F.2d 1, 3 (9th Cir.1973); see S.Rep. No. 93-1277, 93d Cong., 2d Sess. 24 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7051, 7073 (“While the rule refers to a coconspir-ator, it is this committee’s understanding that the rule is meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged.”).

Thus, the common enterprise or joint venture on which admission of a coventurer’s statement is based need not be the same as the charged conspiracy, if any. The novel question before us is whether the common enterprise or joint venture must have an illegal objective. The rationale underlying Rule 801(d)(2)(E) supports the conclusion reached by the district court, i.e., that the common enterprise need not have an illegal objective.

The theoretical justification for the rule that a coconspirator’s statements are admissible comes from the law of agency. “Declarations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both under a standard exception to the hearsay rule applicable to the statement of a party.” Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 489, 97 L.Ed. 593 (1953). To the same effect is our decision in Fuentes, in which we quoted with approval the following language from a leading Second Circuit opinion:

The notion that the competency of the declarations of a confederate is confined to prosecutions for conspiracy has not the slightest basis; their admission does not depend upon the indictment, but is merely an incident of the general principle of agency that the acts of any agent, within the scope of his authority, are competent against his principal.

Fuentes, 283 F.2d at 539 (quoting United States v. Olweiss, 138 F.2d 798, 800 (2d Cir.1943) (Hand, J.), cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1944)). As the district court correctly noted, “Olweiss *1399established a doctrinal basis for an expansive reading of the coconspirator exception: provided that an adequate agency relationship exists, the statements of a coconspirator, or agent, are admissible.... ” But see United States v. Cambindo Valencia, 609 F.2d 603, 635 n. 25 (2d Cir.1979) (“The rationales generally advanced in support of the coconspirator exception, including the ‘agency’ theory ..., offer scant guidance” on the question whether coconspirator’s statement may be admitted on the basis of “another conspiracy found to exist in the factual pattern of the case”), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980).

If the appropriate basis for admitting the statements of a confederate is that his participation in a common enterprise with the defendant makes him an agent of the accused, then the goal or objective of the common enterprise would appear to be irrelevant. The critical inquiry is simply whether the confederate was acting in his capacity as an agent of the defendant when he uttered the statements sought to be admitted, i.e., whether the statements were made “during the course and in furtherance of” the common enterprise. See In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 262-63 (3d Cir.1983) (rejecting argument that proponent of coconspirator’s statements must show that the conspiracy was unlawful) (cocon-spirator’s statement admissible if proponent shows “that there was a joint undertaking, that the statement was made to advance that undertaking, and that the party against which the statements are offered was a party to that undertaking”), rev’d on other grounds sub nom. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); United States v. Saimiento-Rozo, 676 F.2d 146, 149 (5th Cir.1982) (“[I]t is not necessary that the conspiracy upon which admissibility of these statements is predicated be the conspiracy charged.... Nor need the conspiracy or agreement be criminal in nature; it may be in the form of a joint venture.”).

The decisions of other circuits, in addition to those cited in the preceding paragraph, support the foregoing analysis. See, e.g., United States v. Coe, 718 F.2d 830, 835-36 & n. 3 (7th Cir.1983) (unlike the crime of conspiracy, which “comprehends much more than just a joint venture or concerted action, ... the evidentiary rule of conspiracy is founded on concepts of agency law”; government need not establish that conspiracy or joint venture was illegal in order to invoke coconspirator hearsay exception); United States v. Weisz, 718 F.2d 413, 433 (D.C.Cir.1983) (Rule 801(d)(2)(E) embodies “concepts of agency and partnership law”; although the Rule “refers to ‘conspiracy’ and statements of a ‘coconspirator,’ its use of those terms is not intended to limit applicability of the doctrine to unlawful combinations”), cert. denied, 465 U.S. 1027 & 1034, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984); United States v. Postal, 589 F.2d 862, 886 n. 41 (5th Cir.) (“[T]he agreement [upon which admissibility of a joint venturer’s statement is predicated] need not be criminal in nature.”), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); United States v. Trowery, 542 F.2d 623, 626-27 (3d Cir.1976) (co-conspirator exception to hearsay rule is “founded, to some extent, on concepts of agency law,” is applicable “in both civil and criminal eases,” and renders a statement competent as against the nondeclarant upon a showing “that a joint undertaking existed at the time of the statement”) (emphasis added), cert. denied, 429 U.S. 1104, 97 S.Ct. 1132, 51 L.Ed.2d 555 (1977). The gist of the case law has been accurately summarized by one commentator as follows:

Modern authority indicates that the es-sense of the coconspirator exception is a “combination” among the coventurers, hence that the proponent of a coconspirator statement need not establish by independent evidence that the conspiracy is unlawful. This holding goes far to assure that the coconspirator exception is indeed more properly understood as a “joint venture”exception whose essence is an agreement among the members to pursue some common plan.

*14004 D. Louisell & C. Mueller, Federal Evidence § 427, at 125 (Supp.1987) (footnote omitted; emphasis added).

We note that some cases contain language suggesting that an unlawful joint venture must be shown before a coventurer’s statement may be admitted against the defendant. See, e.g., United States v. Garcia-Duarte, 718 F.2d 42, 45 (2d Cir.1983) (quoting United States v. Terry, 702 F.2d 299, 320 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983), quoting United States v. Ragland, 375 F.2d 471, 477 (2d Cir.1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968)) (“[T]he totality of the independent evidence marshalled by the prosecution must establish at least the ‘likelihood of an illicit association between the declarant and the defendant.’ ”) (emphasis added in Terry); United States v. Di Rodio, 565 F.2d 573, 575 (9th Cir.1977) (“To be admissible the statement must be in furtherance of the conspiracy and be made during the pendency of the criminal scheme.”). In none of these cases, however, was the court addressing the issue now before us— the admissibility of a statement made during the course of a legal joint venture between the declarant and the defendant.

Layton relies principally on the Supreme Court’s language in Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). The Court in Anderson observed that “[t]he hearsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress, a limitation that this Court has ‘scrupulously observed.’ ” Id. at 218, 94 S.Ct. at 2259. The Court elaborated in a footnote:

The rationale for both the hearsay-conspiracy exception and its limitations is the notion that conspirators are partners in crime. As such, the law deems them agents of one another. And just as the declarations of an agent bind the principal only when the agent acts within the scope of his authority, so the declaration of a conspirator must be made in furtherance of the conspiracy charged in order to be admissible against his partner.

Id. at 218 n. 6, 94 S.Ct. at 2259 n. 6 (citations omitted).

■' Layton focuses on the Court’s references to “the conspiracy charged” as support for his argument that the hearsay-conspiracy exception is available only when the Government demonstrates defendant’s participation in an unlawful concert of action. The Anderson Court, however, was not responding to an argument that an uncharged conspiracy or a lawful concert of action could not support admission of a coconspirator’s statement, but to a contention that such a statement is admissible even if uttered after the termination of the charged conspiracy. The Court was simply reiterating the established principle that the conspiracy, or common enterprise, must have been in progress at the time the statement sought to be admitted was made. Indeed, as the district court in the instant matter noted, “[n]o circuit court has ever held that Anderson requires that the predicate for admissibility under the exception be the precise conspiracy charged in the indictment.”

For the reasons discussed above, we conclude that the district court correctly determined that Rule 801(d)(2)(E) applies to statements made during the course and in furtherance of any enterprise, whether legal or illegal, in which the declarant and the defendant jointly participated.

2. Did the district court err in finding that the Government presented sufficient evidence to establish Jones’ and Layton’s participation in a conspiracy to conceal the truth about the conditions at Jonestown?

Having concluded that the district court’s construction of Rule 801(d)(2)(E) was correct, we next determine whether the Government presented sufficient evidence to establish that Jones and Layton were participants in a conspiracy, or common enterprise, to conceal from Congressman Ryan the truth about the conditions at Jonestown.

Applying the standard of proof prescribed by this circuit’s law prior to the decision in Bourjaily, the district court *1401found that the petition circulated by Jones and signed by Layton prior to Ryan’s arrival constituted prima facie evidence of a common enterprise to conceal the truth about the conditions at Jonestown. The petition, dated November 9, 1978, declared:

Many of us, the undersigned residents of Jonestown, Guyana, have been visited here by friends and relatives. However, we have not invited and do not care to see Congressman Ryan (supporter of military aid to the Pinochet regime of Chile), media representatives, members of a group of so-called “concerned relatives,” or any other persons who may be travel-ling with, or associated with, any of these persons.

The court concluded that “[t]he preparation of the petition, the effort that went into its distribution and dissemination, and the hundreds of signatures on the petition all indicate a concerted common enterprise to dissuade Congressman Ryan from visiting Jonestown and learning the truth about the conditions there.”

Subsequent to the trial in this matter, the Supreme Court held that the existence of a conspiracy, or common enterprise, in which both the declarant and the defendant participated are preliminary facts that must be shown by a preponderance of the evidence. Bourjaily, 107 S.Ct. at 2779. The Court further held that in assessing whether the preliminary facts have been demonstrated, the court may consider the coconspirator’s statements themselves. Id. at 2780. Accordingly, in assessing whether the “preponderance” standard announced in Bourjaily was satisfied in the present case, we consider not only the evidence of the petition, which was the sole evidence on which the district court relied, but also the pre-arrival speeches themselves.3

In a speech on November 14, 1978, Jones stated that if Ryan and his delegation “enter this property illegally, they will not leave it alive.” In a speech on November 17, 1978, Jones claimed “the right to shoot him [Ryan] in the ass” and threatened that “if he stays lbng enough for tea he’s gonna regret it.” Later in the same speech, Jones declared: “I want to shoot someone in the ass like him so bad, so long, I’m not passing this opportunity up. Now if they come in, they come in on their own risk.”

These speeches, considered in conjunction with the petition circulated by Jones and signed by Layton, demonstrate by at least a preponderance of the evidence that Jones and Layton were participants in a common enterprise to prevent Ryan from discovering and revealing the truth about the living conditions at Jonestown. Thus, the pre-arrival speeches were admissible as statements of a coconspirator.

3. Did the admission of Jones’ pre-ar-rival speeches violate Layton’s sixth amendment right to confront and cross-examine witnesses?

Layton argues that even if it can be assumed that Rule 801(d)(2)(E) permits admission of a coconspirator’s statements on the basis of an uncharged, legal common enterprise, and that the Government presented sufficient evidence of such an enterprise in this case, the admission of Jones’ pre-arrival speeches into evidence violated Layton’s sixth amendment right to confront and cross-examine witnesses.

Layton’s argument was answered by the Supreme Court in Bourjaily. There, the Court held that “the requirements for admission under Rule 801(d)(2)(E) are identical to the requirements of the [cjonfrontation [cjlause.” 107 S.Ct. at 2782. When a coconspirator’s statement satisfies the requirements for admission under Rule 801(d)(2)(E), it satisfies the requirements of the confrontation clause, as well. Accordingly, “the [confrontation [cjlause does not *1402require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).” Id. at 2783 (footnote omitted). Thus, Layton’s sixth amendment objection to admission of the pre-arrival speeches must be rejected.

4. Should the district court have excluded Jones’ pre-arrival speeches under Fed.R.Evid. 403?

Layton also claims that the district court erred in failing to exclude the pre-arrival speeches under Fed.R.Evid. 403, because “the statements were confusing, and contained inflammatory language that must surely have prejudiced the jury.” Layton contends that the probative value of the pre-arrival speeches was minimal because their truthfulness was in doubt.

Rule 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

In applying Rule 403, the district court must balance “the probative value of the evidence against the effect of its non-probative aspect — and [must] assess the danger that admission of the evidence will unfairly prejudice the defendant.” United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982). The evidence should be excluded “[w]hen the effect on the jury of the non-probative aspect of the evidence is likely to be substantially greater than the effect of the probative aspect....” Id.

We review a district court’s decision under Rule 403 with considerable deference.

The Rule 403 weighing process — that of balancing the probative value of the proffered evidence against its potential for unfair prejudice or confusion of the issues — is primarily for the district court to perform. The district court’s admission or exclusion of evidence under Rule 403 will be reversed only if it was an abuse of discretion.

United States v. Layton, 767 F.2d 549, 553 (9th Cir.1985) (citation omitted); accord Palmerin v. City of Riverside, 794 F.2d 1409, 1411 (9th Cir.1986) (“We will uphold rulings on the admissibility of evidence unless admitting the evidence was an abuse of discretion.”).

The pre-arrival speeches are highly probative of the state of mind of the participants in the common enterprise to conceal the truth from Congressman Ryan. The pre-arrival speeches reveal antipathy towards Ryan, resistance to his impending visit, and an intent to harm him if he insists on coming to Jonestown. Whether the speeches were truthful was a question for the jury to decide. The speeches undoubtedly prejudiced Layton, but Rule 403 precludes only unfair prejudice. Layton fails to explain how the speeches unfairly prejudiced him.

In short, the probative value of the speeches clearly outweighed the prejudicial effect of their admission into evidence. The district court did not abuse its discretion in refusing to exclude the pre-arrival speeches under Rule 403.

C. Did The District Court Err In Admitting Jones’ Statements To Attorney Garry?

1. Is the present panel bound by this court’s prior decision on this issue?

Prior to Layton’s second trial, the Government requested that the district court issue an in limine ruling that certain statements made by Jones to Charles Garry, attorney for the Peoples Temple, were admissible. The Government contended that Jones’ statements to Garry were admissible under Fed.R.Evid. 804(b)(3) as declarations against Jones’ penal interest. The district court denied the Government’s motion.

The Government filed an interlocutory appeal seeking reversal of the district court’s ruling that the statements were not against Jones’ penal interest. We reversed. We concluded that the proffered statements satisfied the requirements of Rule 804(b)(3). Layton, 720 F.2d at 559-*140360. Layton now raises the same issue previously decided by this court, i.e., whether Jones’ statements to Garry were admissible under Rule 804(b)(3) as statements against Jones’ penal interest. He “requests that this court reconsider its prior order based on the actual trial testimony.”

Under the rule of “law of the case,” the panel hearing a second appeal in a single case will ordinarily refrain from reconsidering an issue adjudicated on the merits in the earlier appeal. Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 (9th Cir.1982). “[T]he discretion of a court to review earlier decisions should be exercised sparingly so as not to undermine the salutary policy of finality that underlies the rule.” Id. at 834. Nevertheless, when “ ‘the evidence on a subsequent trial was substantially different’ ” from the evidence on which the first panel based its decision, the second panel “will exercise [its] discretion to reconsider [the] prior decision.” United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986) (quoting Moore, 682 F.2d at 834, quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)).

We must decide whether the evidence presented at Layton’s second trial was “substantially different” from the record we reviewed in deciding the interlocutory appeal from the pretrial order. Our earlier decision was based on the Government’s representation of the evidence that it would offer at trial. We summarized the proffered evidence as follows:

The government ... seeks the admission of testimony by Garry, Jones’ lawyer, that shortly after the Ryan party left for the airstrip Jones told him that Layton and Parks had taken all the weapons from Jonestown and were proceeding to the airstrip to engage in violent acts; that all was lost at that time; that Lay-ton was not a defector, but was going to the airstrip to carry out a mission of violence.

720 F.2d at 558.

Garry’s testimony at the second trial differed from the Government’s offer of proof. The Government concedes that contrary to its proffer, Garry did not attribute to Jones an express statement that Layton was going to the airstrip to engage in violent acts. Garry testified that Jones made the following statements: (1) “Charles, every gun in this place is gone.” (2) “Charles, I am worried. When Larry Layton left he hugged me and said the shit has got to stop. Joe Wilson and Gerry Parks have also left. They have taken every gun in the place. There is not a gun left.” (3) “Parks ... and Layton were not really defectors.” (4) “Charles, all is lost. Every gun in this place is gone.” (5) “Larry Layton and Jerry Parks, they didn’t defect. They were part of this, they’ve got all the guns.” (6) “[W]hen Larry Layton came to me, he said he loved me, and he said, you’re going to be proud of me.... I felt that perhaps he may have had a gun on him at that time.”

The Goverment’s representation that Jones told Garry that Layton was “proceeding to the airstrip to engage in violent acts” and that Layton’s purpose was “to carry out a mission of violence” were clearly the most significant statements in the Government’s offer of proof, and directly implicated Jones in a conspiracy that culminated in the violent acts that actually took place. Indeed, our prior decision was based, in part, on the fact that Jones’ statements indicated that he “had detailed knowledge of the events that were about to transpire.” 720 F.2d at 560.

Because the evidence presented at Lay-ton’s retrial was substantially different from the offer of proof relied upon in the interlocutory appeal, we will exercise our discretion to reconsider the admissibility of Jones’ statements to Garry in light of the evidence actually presented at the second trial.

2. Were Jones’ statements to Garry admissible as declarations against a penal interest?

Fed.R.Evid. 804 states, in pertinent part:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

*1404(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true.

Fed.R.Evid. 804(b)(3). Our earlier opinion sets forth the principles governing the interpretation of the statement against interest exception to the hearsay rule:

In interpreting the “against interest” requirement [of Rule 804(b)(3)], we have often stated that Congress’s use of the phrase “tend to subject” illustrates its desire that this type of evidence be freely admissible. Thus, we have held that rule 804(b)(3) is not limited to confessions of criminal responsibility, although the statements must, in a real and tangible way, subject declarants to criminal liability.... We have held that remarks that tend to implicate the declarant in a conspiracy are statements against his penal interest.

Layton, 720 F.2d at 559-60 (citations omitted); see United States v. Satterfield, 572 F.2d 687, 691 (9th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978) (quoting United States v. Benveniste, 564 F.2d 335, 341 (9th Cir.1977)) (“If Congress had wanted courts to take a restrictive approach to whether a statement is against penal interest, it would not have chosen ‘the broadly worded phrase “tended to subject” ’ in Rule 804(b)(3).”).

Under the foregoing principles, Jones’ statements to Garry were properly admitted under Rule 804(b)(3) as declarations against Jones’ penal interest. Jones had the exclusive power to determine who could carry a gun at Jonestown. His statements that Layton and others had taken all the guns when they departed for the airstrip, that Layton was not a true defector, that he (Jones) was worried, and that “all is lost,” when construed together, tended to implicate Jones in an unlawful conspiracy to harm the members of the departing congressional delegation. As noted in our pri- or opinion, “[b]ecause Jones had control over most events in Jonestown, he would have known that acts of his followers ... would be attributed to him.” 720 F.2d at 560. It can be logically inferred from his statements to Garry that Jones suspected Layton would engage in unlawful acts, and that Jones knew that he (Jones) would be suspected of directing the violence against Congressman Ryan. Thus, Jones’ statements to Garry “tended to subject” Jones to criminal liability for conspiracy.4 The statements were declarations against Jones’ penal interest admissible pursuant to Rule 804(b)(3).

3. Did admission of Jones’ statements to Garry violate Layton’s sixth amendment right to confront and cross-examine witnesses?

Layton argues that even if Jones’ statements to Garry were declarations against penal interest, admission of this evidence violated Layton’s sixth amendment right to confront and cross-examine witnesses against him because they bore insufficient indicia of reliability. See California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970) (admission into evidence of out-of-court statement may violate confrontation clause even though statement falls within a recognized exception to hearsay rule).

Layton presented this argument in the prior appeal of this issue. We rejected it. 720 F.2d at 561. However, as discussed in Part 111(C)(1) supra, Garry’s trial testimony was substantially different from the proffered evidence previously presented to this court. Accordingly, we review de novo Layton’s sixth amendment argument.

The right of an accused to cross-examine witnesses is guaranteed by the confronta*1405tion clause. U.S. Const, art. VI, cl. 2. “[T]he clause is given a pragmatic rather than a rigid, literal construction.” Barker v. Morris, 761 F.2d 1396, 1399 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). Thus, the Supreme Court has held that the requirements of the confrontation clause are satisfied when the prosecution demonstrates “both the unavailability of the declarant and ... ‘indicia of reliability’ surrounding the out-of-court declaration.” Bourjaily, 107 S.Ct. at 2782 (quoting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)); see United States v. Monaco, 735 F.2d 1173, 1175 (9th Cir.1984) (“An out-of-court statement may be admissible against the accused if it is necessary and reliable.”).

In the present case, the declarant, Jones, is deceased, hence unavailable. The focus of our inquiry, therefore, must be whether Jones’ statements to Garry manifest sufficient indicia of reliability to justify their admission into evidence, notwithstanding that Layton has had no opportunity to cross-examine the declarant.5

Whether an out-of-court statement bears sufficient indicia of reliability to satisfy the requirements of the confrontation clause depends on the particular circumstances under which the statement was uttered: “There is no mechanical test for determining the reliability of out-of-court statements_ Each case must be evaluated on its own facts_ The test ... is whether the factors surrounding the making of the out-of-court statement, taken as a whole, indicate trustworthiness.... ” Barker, 761 F.2d at 1400, 1403.

Thus, courts assess the reliability of out-of-court statements by considering a variety of factors. These factors include the following questions:

1. Was the statement made voluntarily? Id. at 1401; Steele v. Taylor, 684 F.2d 1193, 1204 (6th Cir.1982), cert. denied, 460 U.S. 1053, 103 S.Ct. 1502, 75 L.Ed.2d 932 (1983);

2. Was the statement made contemporaneously with the occurrence of the events it references? United States v. Nick, 604 F.2d 1199, 1204 (9th Cir.1979) (per curiam);

3. Did the declarant admit that he committed acts contrary to his penal interest or likely to bring him into disrepute? Barker, 761 F.2d at 1401-02;

4. Was the statement corroborated? Id. at 1402; Nick, 604 F.2d at 1204; United States v. West, 574 F.2d 1131, 1135 (4th Cir.1978);

5. Did the declarant have personal knowledge of the matters addressed in the statement? Barker, 761 F.2d at 1402;

6. Was the statement uttered spontaneously? Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970) (plurality); and

7. Was the person to whom the statement was made someone to whom the de-clarant would likely speak truthfully? Nick, 604 F.2d at 1204. It should be reiterated, however, that “[t]he reliability factors discussed in other cases ‘are not to be considered exhaustive, nor are all factors required to be present in order to admit the declarations.’ ” Barker, 761 F.2d at 1403 (quoting United States v. Fleishman, 684 F.2d 1329 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982)).

Considering all the circumstances surrounding Jones’ statements to Garry, we find that these declarations exhibit sufficient indicia of reliability to satisfy the requirements of the confrontation clause. *1406Jones’ statements were uttered voluntarily to a trusted advisor — the lawyer for the Peoples Temple. Such a situation is “suggestive of reliability.” Layton, 720 F.2d at 561. Jones made the statements very shortly after Layton’s departure, while the matters addressed were undoubtedly fresh in his mind. Jones’ statements were subsequently corroborated in important respects —Layton did have a gun, and he was feigning defection. Moreover, the statements were adverse to Jones’ penal interest. See Part 111(C)(2) supra.

In addition to the presence of the aforementioned factors suggesting reliability, we note the absence of certain factors that have been held to suggest un reliability. Jones was not in custody when he spoke to Garry, he was not seeking to curry favor with anyone, and his statements “do not seem designed to cast blame on Layton.” Layton, 720 F.2d at 561; cf. Lee v. Illinois, 476 U.S. 530, 546, 106 S.Ct. 2056, 2065, 90 L.Ed.2d 514 (1986) (“a codefendant’s confession inculpating the accused is inherently unreliable”).

Cutting against a finding of reliability, however, is the fact that Jones’ statements were erroneous in certain respects. Contrary to Jones’ statements to Garry, not all the guns had been taken from the settlement, and Gerald Parks was not feigning defection.

Nevertheless, considering all the circumstances surrounding the utterance of Jones’ statements to Garry, we conclude that these declarations exhibit sufficient indicia of reliability to satisfy the requirements of the confrontation clause.

4. Were Jones’ statements to Garry inadmissible as privileged?

Layton also argues that the district court erred in admitting Jones’ statements to Garry into evidence because they were privileged, attorney-client communications. The district court did not address this issue.

“The burden of establishing the existence of the attorney-client privilege, and of presenting the underlying facts demonstrating the existence of the privilege rests on the claimant of the privilege.” United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir.1977).

The attorney-client privilege applies only if the party claiming the privilege “is or sought to become a client.” United States v. Osborn, 409 F.Supp. 406, 409 (D.Or.1975) (quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950)), aff'd in part & rev’d in part on other grounds, 561 F.2d 1334 (9th Cir.1977). In addition, the privilege can be invoked only at the instance of the client. See id. (quoting 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961) (communication to lawyer for purpose of seeking legal advice “made in confidence ... by the client ... are at his instance permanently protected” from disclosure) (emphasis added). Finally, “[a] litigant is entitled to object to adverse testimony by a former attorney only when such testimony would tend to reveal matters disclosed by the litigant in confidence.” United States v. Mackey, 405 F.Supp. 854, 858 (E.D.N.Y.1975) (emphasis added).

Layton has failed to bear his burden of establishing the facts underlying the existence of an attorney-client privilege. First, Layton made no showing that he was or sought to become Garry’s client. The mere fact that Garry represented the Peoples Temple, of which Layton was a member, does not establish that Layton was Garry’s client. See United States v. Keplinger, 776 F.2d 678, 700 (7th Cir.1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986) (attorneys representing corporation had no attorney-client relationship with individual employees, where “no express agreement for individual representation was made” and where employees never asked attorney directly or indirectly to represent them). The privilege may only be invoked by the client of an attorney. Layton has failed to show that he is authorized to invoke the privilege on behalf of the Peoples Temple.

Finally, the statements at issue were communications made by Jones. No evidence was offered that Layton made a *1407statement to Garry. In fact, Garry testified that he first saw Layton at the second trial. Jones’ statements to Garry were not protected by the attorney-client privilege.

D. Did The District Court Err In Admitting The Testimony Of Constable Kansinally?

Layton contends that the district court erred in permitting the Government to present the testimony of Mortimer Kansi-nally, a supernumerary constable in Port Kaituma at the time of the shootings. Kansinally testified as follows concerning his initial conversation with Layton upon the latter’s arrival at the constabulary:

Q. And what did you say?

A. I said, “you [Layton] was involved in the shooting?” He said, “Yes. I shot the motherfuckers.” I said, “What?” He said, “I shot the fuckers.”

Layton contends that because of “the passage of time and the distance from the scene of the events giving rise to the charges, coupled with the inherent difficulties presented by impaired communication facilities within Guyana, two important witnesses for the defense could not be produced.” Layton asserts that the witnesses in question, Durga Persaud and Clement Lila-drie, were present when Kansinally confronted Layton and could have impeached Kansinally’s testimony concerning Layton’s remarks. Layton claims that his inability to procure the testimony of Persaud and Liladrie mandated the exclusion of Kansi-nally’s testimony. Layton claims that admission of the Kansinally testimony violated Layton’s rights under the confrontation and due process clauses. He also argues that the testimony should have been excluded under Fed.R.Evid. 403 because it was highly prejudicial and minimally probative.

1. Did admission of Kansinally’s testimony violate Layton’s sixth amendment right to cross-examine witnesses?

Layton contends that because he was unable to secure the presence of Per-saud and Liladrie as witnesses to impeach Kansinally, Layton’s rights under the confrontation clause were violated. Layton correctly notes that “a primary interest secured by [the confrontation clause] is the right of cross-examination,” Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965), and that “the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness,” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).

These rights were secured to Layton in the present case. Kansinally appeared and testified in court, and Layton’s counsel thoroughly cross-examined the witness. Indeed, defense counsel succeeded in impeaching the witness in certain respects. Moreover, the district court permitted the defense to read into evidence prior sworn statements given by Persaud and Liladrie in Guyana. In short, Layton had a full and unrestricted opportunity to cross-examine the witness against him.

This case, therefore, is distinguishable from the cases on which Layton relies. In each of those cases, counsel for the defense was prevented from cross-examining a witness for the prosecution. See Davis, 415 U.S. at 311, 94 S.Ct. at 1107-08 (trial court barred defense counsel from cross-examining witness concerning certain matters that might have shown bias and prejudice); Douglas, 300 U.S. at 416-17, 85 S.Ct. at 1075-76 (witness asserted privilege against self-incrimination, thereby preventing defense counsel from cross-examining witness concerning witness’s confession which implicated defendant and which had been read to jury by prosecution).

Layton contends, in effect, that the confrontation clause guarantees that no witness will be permitted to testify against the defendant unless witnesses who might impeach that testimony are also available to testify. Layton cites no case to support this proposition. Perhaps Layton’s impeachment of Kansinally would have been more effective had Layton been able to secure the presence of Liladrie and Persaud. Liladrie reportedly died in Guyana shortly before the second trial, and Per-*1408saud disappeared in the United States six years earlier during the first trial. The confrontation clause guarantees that the defendant will have an opportunity to cross-examine and impeach the witnesses against him, not that the impeachment will be effective or that the witnesses whose testimony might be helpful in the impeachment will be alive and available as witnesses at trial. Because Layton confronted Kansinally and freely cross-examined him, without any restriction imposed by the district court, no confrontation clause violation occurred.

2. Did admission of Kansinally’s testimony violate Layton’s fifth amendment right to due process, in light of Layton’s inability to obtain witnesses to impeach Kansinally?

Layton argues that he was “deprived of due process of law by the delay caused by the government’s [interlocutory] appeals.” He argues that the delay was the cause of his inability to secure the presence of Persaud and Liladrie to impeach the testimony of Kansinally.

“[D]ue process is not violated unless a material witness’s unavailability is attributable to unilateral government action.” United States v. Gonzales, 617 F.2d 1358, 1363 (9th Cir.1980); accord United States v. Hernandez-Gonzalez, 608 F.2d 1240, 1244 (9th Cir.1979) (analyzing Ninth Circuit cases and concluding that unavailability of witness does not constitute denial of due process “unless the unavailability ... is the result of unilateral, overt action by the government”).

The Government asserts, and Layton does not deny, that Persaud disappeared on his own initiative during Layton’s first trial. In fact, it appears that Persaud was available and under subpoena by the defense during that trial, but was not called to contradict Kansinally. Nor did Layton make any effort to preserve Persaud’s testimony. Persaud’s unavailability was not a result of government action.

Layton contends that “[t]he loss of Lila-drie was clearly attributable to the lapse of time, compounded by the inherent difficulty of locating and producing witnesses from a foreign country.” The Government cannot reasonably be held responsible for “the inherent difficulty of locating and producing” foreign witnesses, at least when the Government has not concealed the witnesses or removed them from the United States. Cf. United States v. Mendez-Rodriguez, 450 F.2d 1, 5 (9th Cir.1971) (2-1) (where defendant was charged with conspiracy to smuggle aliens into the United States and with transporting illegal aliens, government action in deporting three of six witnesses to the offenses before defendant had an opportunity to interview them deprived defendant of due process). Nor can the lapse of time be attributed to the Government. Liladrie apparently died shortly before the second trial commenced. The second trial had been scheduled to begin in October 1985, but it was continued to September 1986 on defense motion. See Part III(G) infra. Liladrie apparently was alive in Guyana as late as August 1986. His unavailability to testify at the second trial, therefore, cannot be attributed to the Government.

Because the Government was not responsible for the unavailability of either Per-saud or Liladrie, Layton’s inability to obtain their testimony did not constitute a denial of due process. The district court did not err in permitting Kansinally to testify in their absence.

3. Should the district court have excluded Kansinally’s testimony under Fed.R.Evid. 403?

Layton argues that Kansinally’s testimony should have been excluded pursuant to Fed.R.Evid. 403. The standards to be applied by the district court under Rule 403, and the standards governing this court’s review of the district court’s decision, are set forth in Part 111(B)(4) supra.

Kansinally’s testimony was probative of Layton’s state of mind. The testimony tended to show that Layton acted with malice and premeditation, rather than accidentally or spontaneously. The profanity that Kansinally attributed to Layton was precisely the aspect of the testimony that *1409made it probative. The testimony may have prejudiced Layton by causing the jury to dislike him for using profanity. But we cannot conclude that the prejudicial effect of the evidence “substantially outweighed” its probative value. For this reason, and because the district court enjoys wide discretion in admitting evidence over an objection under Rule 403, we affirm the district court’s decision not to exclude the Kansi-nally testimony.

E. Was Layton’s Confession Involuntary And Coerced, Hence Inadmissible Under The Fifth Amendment?

Layton was taken into custody by Guyanese officials at about 5:00 p.m. on November 18,1978. Four days later, while still in custody, he signed the following statement:

I, Larry Layton, take full responsibility for all the deaths and injuries that took place at the Port Kaituma airstrip. I have begged the Bishop, Jim Jones, that I be allowed to bring down the plane, but he disapproved. My reason for suggesting this was because I felt that these people were working in conjunction with C.I.A. to smear the Peoples Temple and to smear Guyana. I got a gun from a friend of mine, one Pancho, and I went to the airstrip intending to bring down the plane. But when the shooting started, I also started shooting, as I thought it was all too late. I don’t know why I did it.

Layton contends that the Guyanese officials coerced him into providing the foregoing statement and that he signed it involuntarily. Accordingly, he argues, admission of the statement into evidence violated his fifth amendment right against self-incrimination.

The district court held a hearing prior to Layton’s first trial to determine whether the statement had been given voluntarily. Layton testified that he had been subjected to coercive conditions prior to signing the statement. He claimed that he had been shackled, threatened with a knife and a gun, deprived of food and drink, deprived of light, ventilation and bedding, subjected to interrogation by Guyanese officials throughout the day and night, subjected to mental and physical abuse, and confined in cells that were filthy, infested with insects, and foul smelling.

Five Guyanese police officers who saw Layton prior to his signing the statement rebutted his testimony. They testified that Layton never complained about alleged mistreatment or lack of food, that he was not improperly interrogated, that his statement was taken down, word for word, at his request, and that he was allowed to make a correction, which he initialed, before signing the statement.

At the conclusion of the hearing, the district court judge ruled as follows:

I’m going to deny the motion to suppress. I have assessed the credibility of the witnesses and I find that the statement was a voluntary statement; and ... I find that I don’t believe that there were any guns, or knives, or beatings made of the defendant. I think that with respect to the other complaints made concerning food and water and the nature of the shelter in which he found himself, that to the extent that his testimony is believable, the conditions were not such that they would have caused his statement to be involuntary.

I have also weighed the discrepancies, to the extent there were any, between the Guyanese officers and I do not find that they are of such a magnitude that it causes me to disbelieve them in essential respects.

The district court’s findings concerning the conditions of Layton’s confinement are factual and are reviewed under the clearly erroneous standard. United States v. Wolf, 813 F.2d 970, 974 (9th Cir.1987). The court’s ultimate conclusion that Layton’s statement was voluntary is reviewed de novo. Id.

The district court judge indicated that he had “assessed the credibility of the witnesses,” and on that basis, he found “that the statement was ... voluntary.” The trial court credited the testimony of the Guyanese police officers. Layton has not presented any basis for concluding that the court clearly erred in making its determination.

*1410The trial judge’s resolution of the volun-tariness issue in this matter is similar to the trial judge’s decision in Wolf. In that matter, the trial judge stated: “As far as I’m concerned there’s no evidence to indicate that the confession or statement ... was made involuntarily. As a matter of fact, everything points to the fact that it was voluntary_” 813 F.2d at 975. In Wolf, we interpreted the district court’s finding on voluntariness as a finding that the government’s version of the facts was true.

We, likewise, interpret the finding of the district court in this case as accepting as true the facts related by the Guyanese police officers. Given the facts testified to by the Guyanese officers and accepted by the district court, there is no basis for concluding that Layton’s statement was involuntary or coerced.

F. Was Venue Proper In The Northern District Of California?

The indictment against Layton was filed on October 9, 1980 in the Northern District of California, the district of his last known residence in the United States. At that time, Layton was still in Guyana in connection with charges filed against him in that country. On or about November 20, 1980, Guyanese authorities released Layton into the custody of F.B.I. agents, who accompanied Layton on his flight back to the United States. Layton’s flight landed at an airport located within the Eastern District of New York. There, he was taken from the plane to the district court for arraignment. He was then transported to the Northern District of California, where the case was tried.

Layton argues that venue for trial was improper in the Northern District of California. He bases his argument on 18 U.S. C. § 3238, which provides in pertinent part:

The trial of all offenses begun or committed ... 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; but if such offender ... [is] not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender. ...

18 U.S.C. § 3238 (1982).

Layton contends, as he did below, that § 3238 requires that trial be held in the district where the offender was “first brought” — in this case, the Eastern District of New York. He argues that the portion of the statute following the semi-colon provides for the filing of an indictment elsewhere but does not establish an alternative venue for trial. The Government acknowledges that Layton was “first brought” into the Eastern District of New York. The Government, however, maintains that when an offender is outside the United States and the indictment is properly filed in the district of the offender’s last known place of residence pursuant to § 3238, that district is a proper venue for trial, as well.

The proper construction of § 3238 is a question of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Treating the question as one of “first impression in this and every other circuit,” United States v. Layton, 519 F.Supp. 942, 943 (N.D.Cal.1981), the district court concluded that the clause preceding the semicolon in § 3238 was intended “simply to provide an arbitrary rule of venue for offenses committed outside of the United States.” Id. at 944. The court noted that the provision for filing an indictment in the district of the offender’s last known residence was added to the statute by amendment in 1963. Reviewing the scant legislative history of that amendment, the court found that the purpose of the provision was to establish a procedure “to prevent the running of the statute of limitations where an offender remained abroad but was not clearly a fugitive.” Id.

The court concluded that the two clauses of § 3238 should be read in the disjunctive —trial is proper in the district where the offender is first brought, or in the district of his last known residence if an indictment is filed there before the offender is first *1411brought into any district. The court reasoned that no purpose would be served by a procedure requiring transfer of a matter from the district in which the indictment is lawfully filed to a district in which the offender happened to be first brought:

[T]he original purpose of section 3238 was simply to provide an arbitrary rule of venue for offenses committed outside of the United States. The place of venue seems to have been arbitrarily fixed at the place where the criminal process is first set in motion. When the statute was amended in 1963, Congress provided a means of setting that process in motion earlier than had formerly been permitted —that is, by filing an indictment in the district of his last known residence even though the offender has not yet been found in or brought to this country. There appears no reason why Congress would want to interrupt the proceedings, once begun, to move them to the district where the defendant later happened to be brought. Such a system would impose needless expense and inconvenience on the government, and much duplication of labor on the part of prosecuting attorneys, without any increase in convenience to the defendant.

Id. at 945.

We find the district court’s reasoning persuasive. We also note that in a case raising the precise issue now before us, the Sixth Circuit considered and adopted the analysis of the district court in this case. See United States v. Fraser, 709 F.2d 1556, 1558 (6th Cir.1983) (“Chief District Judge Robert Peckham gave 18 U.S.C. § 3238 thorough consideration in United States v. Layton, ... and reached what we consider to be a sound conclusion.”). The Sixth Circuit agreed that when an offender is outside the United States and an indictment is filed in the district of the offender’s last known residence pursuant to § 3238, venue for trial is proper in that district, notwithstanding that the offender is later “first brought” into another district. Id. at 1558, 1559. Layton cites no case to the contrary.

The district court did not err in its ruling that venue for trial was proper in the Northern District of California.

G. Did The Five-Year Delay Before Layton’s Second Trial Violate His Sixth Amendment Right To A Speedy Trial?

Layton argues that the five-year delay between the conclusion of his first trial and the commencement of his second trial “resulted in a clear violation of the right to a speedy trial guaranteed by the Sixth Amendment.”6

The district court carefully considered Layton’s argument and rejected it. In a Memorandum and Order dated June 6, 1986, the district court reviewed the procedural history of the case in detail and reached the following conclusion:

Defendant has not asked for or wanted a speedy trial. In fact, he has asked for a continuance of the trial at every opportunity. He cannot show substantial prejudice attributable to the delay caused by the government’s appeals; and the appeals were not tangential or frivolous, dilatory, or pursued in bad faith. Therefore, the court finds that defendant has not been denied his right to a speedy trial.

The district court’s findings of historical fact concerning the reasons for the five-year delay are reviewed under the clearly erroneous standard. United States v. Williams, 782 F.2d 1462, 1465 (9th Cir.1985). The court’s application of law to the historical facts is reviewed de novo. Id. at 1464-65.

The Supreme Court has formulated a four-factor test “to determine whether a series of continuances infringed upon the defendant’s right to a speedy trial.” United States v. Loud Hawk, 474 U.S. 302, 313, 106 S.Ct. 648, 655, 88 L.Ed.2d 640 (1986). Those factors are the “ ‘[Ijength of delay, the reasons for the delay, the defendant’s *1412assertion of his right, and prejudice to the defendant.’” Id. at 313-14, 106 S.Ct. at 655 (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972)). “[A]n interlocutory appeal by the Government ordinarily is a valid reason that justifies delay.” Id. 474 U.S. at 315, 106 S.Ct. at 656.

In determining whether to charge the Government with the delay occasioned by its interlocutory appeals, the court may consider “the strength of the Government’s position on the appealed issue, the importance of the issue in the posture of the case, and — in some cases — the seriousness of the crime.” Id If the issue raised by the Government’s interlocutory appeal was “clearly tangential or frivolous,” the delay should be weighed heavily against the Government. Id. at 315-16, 106 S.Ct. at 656-57. On the other hand, when the Government’s conduct is reasonable, and there has been no showing of bad faith or dilatory purpose on the part of the Government, delays occasioned by the Government’s interlocutory appeals should not weigh in favor of a defendant’s speedy trial claim. See id. at 316, 106 S.Ct. at 656-57. “[Rjeversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government’s action.” Id.

Layton did not claim below (and does not claim on appeal) that his first trial was untimely. Therefore, the delay at issue in this matter is from the termination of the first trial (September 26, 1981) to the commencement of the second trial (September 18, 1986), a period of five years.

On September 29,1981, the district court released Layton from custody “on personal recognizance bond pending final disposition of the case.” After ruling on motions filed by both sides, the court set a retrial date of February 2, 1982. Retrial was delayed by reason of the Government’s interlocutory appeal from the district court’s order suppressing Jones’ prearrival speeches, Jones’ statements to Garry, the so-called “Last Hour Tape,” and certain other evidence. We did not decide the Government’s first interlocutory appeal until August 10, 1983, when we affirmed in part and reversed in part the district court’s ruling. Layton, 720 F.2d at 551. Our mandate was finally issued on January 3, 1984.

The parties thereafter prepared for the second trial. At Layton’s request, trial was continued to September 4, 1984. On August 30, 1984, the Government filed an interlocutory appeal from the district court’s decision to exclude the “Last Hour Tape” pursuant to Fed.R.Evid. 403, a ground the district court had not considered prior to the Government’s first appeal. See Layton, 720 F.2d at 563. The Government filed a motion to expedite the appeal, which we granted on September 19, 1984. On July 29, 1985, we affirmed the district court. Our mandate was issued on August 23, 1985. Continuances thereafter were attributable to the defense.

Thus, of the five-year delay, roughly two years are attributable t(o the defense and three years to interlocutory appeals initiated by the Government. The Government’s first appeal was pending in this court for almost two years. This appeal was largely meritorious. Thus, most of the delay occasioned by this appeal should not be weighed against the Government’s interest in prosecuting Layton. The Government’s second appeal was expedited at the Government’s request. The appeal proved not to be meritorious. However, as the district court noted, “the crimes charged [were] very serious, and the government had reason to believe that the evidence would strengthen its case.... ” We agree with the district court that the issue was not tangential and the appeal was not frivolous. The Government’s second appeal, therefore, should not weigh heavily against it.

The defendant did not assert his right to a speedy trial until April 8, 1986. Indeed, the district court found that following the issuance of this court’s mandate of August 23, 1985, “the defendant has been anything but anxious to begin the trial. In light of defendant’s many requests for continuances and his counsel’s assertion that they would cause no harm ..., defendant’s conduct weighs heavily against a finding that *1413defendant’s speedy trial rights have been denied.”

The defendant himself doubtless suffered because he was under indictment during the entire period of delay before retrial. Prejudice to his defense, however, has not been demonstrated. Layton asserts that because of the delay, witness Durga Per-saud was no longer available. But Persaud disappeared in 1981. His unavailability cannot be attributed to the delays occasioned by the Government’s appeals. Moreover, Persaud was available during Layton’s first trial. The defense did not deem it necessary to call him as a witness. Persaud’s unavailability, therefore, does not demonstrate prejudice to the defense.

In summary, of the five-year period of delay between the first and second trials, three years are attributable to the Government’s appeals. Neither appeal was undertaken for the purpose of delay. The first appeal was largely meritorious, hence presumptively reasonable. The second appeal was expedited at the Government’s request. Layton was apparently content with the delay since he did not assert his right to a speedy trial until April 1986, after the conclusion of the Government’s second appeal. Continuances thereafter were attributable to the defense. Layton failed to demonstrate prejudice to his defense by reason of the three-year delay attributable to the Government.

H. Was The Verdict Supported By Sufficient Evidence?

Layton argues that the evidence presented at trial was insufficient to support the jury’s finding of guilt beyond a reasonable doubt. In particular, Layton contends that “[tjhe crucial element of proof lacking is the specific intent to kill Ryan and Dwyer.”

The district court instructed the jury that the crimes charged against Layton “require proof of specific intent.” The court further instructed: “To establish specific intent, the government must prove that the defendant knowingly did an act which the law forbids purposely intending to violate the law. Such intent may be determined through all the facts and circumstances surrounding the case.” Layton does not challenge these instructions.

In reviewing the sufficiency of the evidence to support a criminal conviction, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Lane, 765 F.2d 1376, 1381 (9th Cir.1985). Circumstantial evidence is sufficient to sustain a conviction. Id. The jury is entitled to consider the evidence as a whole, including all reasonable inferences that can be drawn therefrom. United States v. Kipp, 624 F.2d 84, 85 (9th Cir.1980).

The evidence showed that Jones and Layton were opposed to Ryan’s visit; that Layton felt Ryan and Dwyer were “working in conjunction with C.I.A. to smear the Peoples Temple and to smear Guyana”; that Layton “begged ... Jones that I be allowed to bring down the plane,” which, as far as Layton knew, would be carrying Ryan and Dwyer; that shortly before the truck departed Jonestown for the airstrip, Layton conferred with Jones, embraced him, and told him that “the shit has got to stop” and that he (Jones) would be proud of Layton; that shortly after conferring with Jones, Layton obtained a gun, falsely declared his intent to defect with the others, and joined the group on the truck; that at the airstrip, Layton spoke with Joe Wilson, who was known to be armed, and that Wilson appeared to pass a gun to Layton by placing his hand underneath Layton’s rain poncho; that when Layton learned there were to be two planes, he insisted on being seated on whichever of the two planes was scheduled to depart first; that Layton thereafter attempted to board the Cessna without being searched and, when confronted, falsely asserted that he had already been searched; that the tractor-trailer carrying Joe Wilson and the other members of the Peoples Temple passed in front of the Cessna, on which Layton was a passenger, without firing at it but proceeded to the larger plane and *1414opened fire thereon; that Layton, upon hearing the commencement of gunfire, first insisted that the pilot of the Cessna proceed to take off, then pulled his own gun, shot two defectors seated near him, and attempted to shoot a third; and that Layton subsequently admitted having shot the “motherfuckers” and accepted “full responsibility for all the deaths and injuries that took place at the Port Kaituma airstrip.”

From this evidence and the evidence summarized elsewhere in this opinion, a rational jury could reasonably infer that Layton knowingly and willfully conspired to kill all the persons who were departing from the airstrip, including Ryan and Dwyer. The jury could reasonably infer that Layton fully intended to accomplish the killings by shooting the pilot of what he expected would be the only plane, thereby causing it to crash. The jury could further infer that when Layton and Wilson discovered that the group would be departing on two planes, they allocated responsibility for killing the passengers on the respective planes. Such an inference is supported by the evidence that Layton insisted on being assigned a seat on the plane scheduled to depart first (the Cessna); that Layton thereafter conferred with Wilson at the airstrip; that the tractor-trailer, on which Wilson was riding, passed the Cessna, leaving it unharmed, then opened fire on the other plane; and that Layton, upon hearing the gunfire, initially insisted that the Cessna take off.

For the foregoing reasons, we reject Layton’s argument that the evidence was insufficient to support a finding that Lay-ton had the specific intent to kill Ryan and Dwyer.

I. Did Layton Receive Ineffective Assistance Of Counsel At Trial?

Layton contends that he received constitutionally ineffective assistance of counsel. He cites the following alleged errors: (1) The grand and petit jury selection procedures deviated from statutory requirements, yet counsel failed to raise a timely objection to those procedures; (2) on cross-examination, counsel accused a prosecution witness of discussing strategy with the United States Attorney, although there was no factual basis for the accusation; (3) counsel failed to object when the prosecution suggested that witness Charles Garry was somehow associated with the defense team; and (4) counsel failed to call any witnesses for the defense.

A defendant claiming ineffective assistance of counsel must make a two-fold showing. He must demonstrate (1) that counsel’s actions were “outside the wide range of professionally competent assistance,” and (2) that the defendant was prejudiced by reason of counsel’s actions. Strickland v. Washington, 466 U.S. 668, 687-690, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

Assuming that counsel’s failure to raise a timely objection to the jury selection procedures constituted ineffective assistance, the error did not prejudice Layton. First, notwithstanding the untimeliness of counsel’s objection, the district court proceeded to consider most of Layton’s claims on the merits. Layton, 519 F.2d at 953-56. Second, the claims that the district court declined to address were simply claims that jury selection failed to comply with “the particular statutory procedures which Congress has deemed presumptively adequate to safeguard defendant’s constitutional rights. Neither the Congress nor any court has ever determined that these statutory procedures provide the only means of obtaining a fair and impartial jury.” Id. at 952. In other words, Layton’s constitutional right to a fair and impartial jury was not compromised by counsel’s untimeliness in raising statutory objections. Indeed, the district court addressed Layton’s constitutional claims and rejected them on their merits. Id. at 955-58.

Likewise, Layton fails to demonstrate prejudice from counsel’s unfounded question on cross-examination or counsel’s failure to object to the prosecution’s improper suggestion that Garry was associated with *1415the defense. These incidents appear to have been little more than momentary and insignificant lapses in a long and complex trial. These alleged derelictions of counsel do not undermine our confidence in the outcome of the trial.

Finally, Layton criticizes counsel’s failure to call any witnesses for the defense. Because this issue is more fully developed in Layton’s appeal from the district court’s denial of his motion under 28 U.S.C. § 2255, we address the issue below.

APPEAL NO. 87-2576

IY. PERTINENT PROCEDURAL AND FACTUAL BACKGROUND

On January 23, 1987, Layton filed an amended motion for a new trial, which the court elected to treat as a motion to vacate conviction under 28 U.S.C. § 2255. In the motion, Layton contended that he had received ineffective assistance of counsel during his second trial, in violation of the sixth amendment. Specifically, Layton, through newly retained counsel, argued that his defense at trial had been constitutionally inadequate be'cause (1) defense counsel failed to inform him that conviction on Count 2 of the indictment would result in a mandatory sentence of life imprisonment, and (2) defense counsel failed to present a psychiatric defense to the charges.

From April 21,1987 to April 30,1987, the district court held an evidentiary hearing on Layton’s motion. The motion was denied on June 3, 1987. The district court issued detailed Findings of Fact and Conclusions of Law. As to Layton’s first claim, the court found that the defense strategy would have been no different had counsel known, and had he informed Lay-ton, that conviction on Count 2 would carry a mandatory, rather than a discretionary, life sentence. The court ruled, therefore, that Layton had suffered no prejudice by reason of counsel’s error. As to Layton’s second claim, the court found that counsel’s decision not to present a psychiatric defense was a reasonable and fully supportable professional judgment under the circumstances. The court ruled, therefore, that Layton had failed to show that trial counsel’s conduct fell below “an objective standard of reasonableness as measured by prevailing professional norms.”

The facts on which the district court relied are set forth in Part YI infra.

V. JURISDICTION

The district court had jurisdiction over Layton’s motion pursuant to 28 U.S.C. § 2255.

“Appeals from orders denying motions under Section 2255 are governed by the civil rules applicable to appeals from final judgments in habeas corpus actions.” United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 267 n. 4, 96 L.Ed. 232 (1952). The court denied Layton’s motion on June 3, 1987. On August 14, 1987, Layton filed both a notice of appeal and a motion to extend time for filing notice of appeal. The notice of appeal was untimely. See Fed.R.App.P. 4(a)(1). The motion to extend time was timely because it was filed within 30 days after the expiration of the 60-day period for appeal set forth in Fed.R. App.P. 4(a)(1). See Fed.R.App.P. 4(a)(5); Crumpton v. United States, 496 F.Supp. 774, 776 (C.D.Cal.1980) (district court may extend time for filing notice of appeal on motion filed not more than 30 days after expiration of 60-day period for appeal from denial of motion under § 2255).

On August 24, 1987, the district court granted Layton’s motion to extend time, giving him “ten days from the date of this order to file the notice of appeal.” The Government does not challenge the district court’s order. As noted above, Layton’s notice of appeal had been filed on August 14, 1987, prior to the date on which the district court granted his motion to extend time. This sequence of events raises the following question: When the appellant files an untimely notice of appeal accompanied by a motion for an extension of time for filing notice of appeal, does the court’s subsequent order granting an extension of time operate nunc pro tunc to validate the notice of appeal?

In Salazar v. San Francisco Bay Area Rapid Transit Dist., 538 F.2d 269 (9th Cir.), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976), the appellant filed an untimely notice of appeal fifty-six

*1416days after entry of final judgment. Forty-one days later, she filed a motion to extend the time for filing the notice of appeal. This court upheld the district court’s jurisdiction to enter a nunc pro tunc order validating the untimely notice of appeal, even though the motion, too, was untimely. Id. The court ruled that when a notice of appeal is filed within the 30-day extension period during which a motion to extend time may be filed, the district may grant a subsequently filed motion to extend time, thereby validating the notice of appeal nunc pro tunc. Other circuits have reached the same conclusion. See, e.g., Cuevas v. Reading & Bates Corp., 770 F.2d 1371, 1377 (5th Cir.1985) (where appellant simultaneously filed notice of appeal and motion to extend time one day after expiration of initial period for filing notice, and district court thereafter granted motion, appeal

was timely), overruled on other grounds, In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1163 n. 25 (5th Cir.1987) (en banc); Moore v. Nelson, 611 F.2d 434, 436 n. 4 (2d Cir.1979) (“The correct procedure is to file the notice of appeal with the motion to extend time for filing and in no event later than the 30-day extension period.... A notice of appeal may be filed before the motion to extend time has been granted_”); Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084, 1087 (3d Cir.1972) (if notice of appeal is filed within 30-day extension period, “the district court may at any time consider a motion to validate the filing”).

Layton’s appeal was timely. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255.

VI. DISCUSSION

A. Did Layton Receive Ineffective Assistance Of Counsel By Reason Of Counsel’s Mistaken Belief That A Life Sentence Would Be Discretionary With The Court, Rather Than Mandatory, If Layton Were Convicted On Count Two, And By Reason Of Counsel’s Failure To Inform Lay-ton That A Life Sentence Would Be Mandatory?

As discussed in Part III(I) supra, a defendant claiming ineffective assistance of counsel must make a two-fold showing. He must demonstrate (1) that counsel’s actions were “outside the wide range of professionally competent assistance,” and (2) that the defendant was prejudiced by reason of counsel’s actions. Strickland v. Washington, 466 U.S. 668, 687-690, 104 S.Ct. 2052, 2064, 2065-66, 80 L.Ed.2d 674 (1984). The district court’s findings of fact are reviewed under the clearly erroneous standard. Woratzeck v. Ricketts, 820 F.2d 1450, 1453 (9th Cir.1987). Whether the facts suffice to establish “ ‘the performance and prejudice components of the ineffectiveness inquiry’ ” is a question that we review de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986) (quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070); see Woratzeck, 820 F.2d at 1453.

After a lengthy evidentiary hearing, at which both the lead defense counsel at trial and Layton testified, the district court accepted as true their testimony that throughout the trial, counsel mistakenly believed, and informed Layton, that a sentence of life in prison would be discretionary with the court, rather than mandatory, on conviction under Count 2 (aiding and abetting in the killing of a member of Congress). The court concluded, however, that counsel’s error was not prejudicial because even absent the error, Layton would have declined to testify and counsel would have pursued the same trial strategy.

The court relied on the following facts to support its conclusion that Layton’s decision not to testify was unrelated to counsel’s error:

1. Layton was fully aware of the seriousness of the charges against him and of the possibility that conviction would result in a sentence of life imprisonment. During the first trial, Layton’s counsel informed him that he could expect to receive a sentence of life in prison if convicted. (Indeed, Layton’s brief on appeal acknowledges that he “was always told to expect the worst, to expect a life sentence....”) According to one paralegal member of the defense team, *1417counsel “always spoke about the penalty in terms of the maximum life.” Moreover, during an in-chambers proceeding after the Government had rested in the first trial, the district court judge himself informed Layton “that he could face life imprisonment if found guilty of the charges.”

2. Notwithstanding Layton’s awareness of the possibility of a life sentence, he was insistent on not testifying. According to his lead trial counsel, Layton was “quite resistant” to testifying: “There was a concentrated effort to have Larry testify. He was always quite resistant to it.” According to a paralegal member of the defense team, Layton was “adamant that he would not even consider the idea of testifying.” The paralegal’s contemporaneous handwritten notes of conversations with Layton reflect Layton’s hostility about testifying. Layton never wavered in his opposition to taking the witness stand. At one point Layton informed counsel that he had decided not to testify and did not think anything could change his mind.

3. Layton testified at the evidentiary hearing that he would have insisted on testifying at trial had he known that conviction would mean a mandatory life sentence. The district court found, however, that Layton’s testimony was self-serving and not credible, while the contrary testimony of two paralegals was sincere and candid. Moreover, the record contained no evidence to substantiate Layton’s claim that the potential sentence had any bearing on his opposition to testifying.

Based on the foregoing facts, the district court concluded that Layton had ample incentive to present as vigorous a defense as possible, regardless of whether the sentence was discretionary life or mandatory life and that Layton would have refused to testify even if counsel had correctly informed him of the potential sentence.

The district court also concluded that counsel’s decision not to present a psychiatric defense was unrelated to his misunderstanding of the potential sentence. The court relied on the following facts:

1.In response to the question whether his misunderstanding of the potential sentence had affected his trial strategy, Lay-ton’s attorney testified that, in any criminal case, he makes decisions “based upon the worst possible consequence.” Counsel stated: “Our strategy was to win, and we based our decisions on the fact that we wanted to win the case.... Whenever I am in a case where there is a range of sentence, I always take the attitude that you always look at the worst possible sentence as the basis on which you make your decisions.”

2. The only evidence inconsistent with counsel’s testimony was the testimony of Layton’s sister, Deborah Layton Cartmell. She testified that lead counsel had told her “he would have proceeded completely differently” had he been aware of the mandatory life sentence. The district court found, however, that Cartmell was not a credible witness. Her testimony, in certain respects, contradicted the testimony of every other witness, including Layton himself. In addition, she levelled certain demonstrably false charges against the defense team. The court also noted her emotional involvement in the case.

3. The defense team had numerous reasons, wholly unrelated to counsel’s misunderstanding of the potential penalty, to withhold a psychiatric defense. First, Lay-ton himself was adamantly opposed to presenting such a defense. He did not believe such a defense would be successful, and he “did not believe he was crazy or mentally ill.” Second, the defense team benefitted from its experience in the first trial. Counsel’s theory of the defense in his closing argument to the jury was that the Government had failed to prove its case beyond a reasonable doubt. The strategy resulted in a jury vote of 11-1 for acquittal on the conspiracy counts and 7-5 for conviction on the aiding and abetting counts. Moreover, post-trial interviews with the jurors indicated to defense counsel that a psychiatric defense might have been counterproductive.

Third, Layton had made a number of highly damaging statements to the psychiatric experts who would have been called to testify for the defense. For example, Lay-*1418ton told one doctor that he had suggested to Jim Jones that dynamite be used to take down the plane, and that when Jones rejected' the idea, Layton suggested that a gun be used.7 Layton told another doctor that when he reached the Port Kaituma airstrip, he had second thoughts about going through with the plan. Counsel feared that if Layton’s statements were elicited from the psychiatrists who had examined him, their testimony would bolster the Government’s case and undermine the psychiatric defense by showing Layton’s ability to reason and think independently.

Yet another reason that counseled against presenting a psychiatric defense was that each of the defense experts had arrived at a different diagnosis of Layton’s mental condition in their psychiatric reports. Counsel was concerned that Fed.R. Evid. 704(b)8 would be invoked to bar the experts from voicing their ultimate conclusion that Layton was legally insane at the time of the events, leaving them to testify only to their differing diagnoses. Counsel feared that the jury would discount the divergent diagnoses.

Finally, defense counsel perceived that the public had reacted negatively to the psychiatric defenses presented in the widely publicized trials of John Hinckley and Dan White. After conducting voir dire, counsel concluded “that [members of the jury] had an inclination not to accept insanity defenses.”

Based on the foregoing facts, the district court found “that knowledge of the mandatory life sentence would not have affected the trial strategy in this case.” Accordingly, the court concluded that “there is no ‘reasonable probability’ that the attorneys’ error would have changed the result of the proceeding, and the defendant has failed to demonstrate that his defense was prejudiced.”

In support of his claim of ineffective representation, Layton relies upon Iaea v. Sunn, 800 F.2d 861 (9th Cir.1986), in which we found that counsel had been unconstitutionally deficient in erroneously advising the defendant “that he was subject to Hawaii’s minimum sentencing law, that there was almost no chance of his receiving an extended or life sentence, and that he had a chance to receive probation if he pled guilty.” Id. at 864. Iaea is distinguishable from the instant matter for two reasons.

First, counsel here did not mislead Lay-ton into believing that his sentence would be light. On the contrary, counsel repeatedly warned Layton to expect the worst — a life sentence. Second, in Iaea, we addressed only the first question to be answered under Strickland — whether counsel’s performance was constitutionally deficient. We did not answer the question now facing us — whether counsel’s mistake concerning the potential sentence prejudiced the defendant. Indeed, in Iaea, we remanded the matter to permit the district court to address the issue of prejudice. Id. at 865-66. In the present case, the district court has already held an evidentiary hearing to determine that question. The district court found it unnecessary to assess the effectiveness of counsel’s performance, because the court concluded that counsel’s error caused Layton no prejudice.

The district court’s findings of fact are not clearly erroneous. Those facts support a conclusion that neither counsel nor Lay-ton himself would have opted for a different trial strategy had counsel not been mistaken about the potential sentence. The district court correctly ruled that counsel’s error caused Layton no prejudice. Under the Strickland test, the error did *1419not result in constitutionally ineffective assistance of counsel.

B. Did Layton Receive Ineffective Assistance Of Counsel By Reason Of Counsel’s Failure To Present A Psychiatric Defense?

In assessing claims of ineffective assistance, we review counsel’s performance with great deference. Woratzeck, 820 F.2d at 1453. We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “[Ejvery effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.

The district court found that the defense team had fully investigated and prepared a psychiatric defense: “The defense team was prepared to call two psychiatrists and a psychologist, each of whom had examined Layton and concluded that Layton was suffering from a mental disease that rendered him unable to appreciate the wrongfulness of his behavior or to conform his conduct to the requirement of the law.”

The defense team was aware, however, that presentation of such a defense would involve serious risks, particularly in light of the damaging statements Layton had given to his doctors. See Part VI(A) supra. Under questioning at the evidentiary hearing on Layton’s § 2255 motion, Lay-ton’s lead trial counsel described the dilemma he faced in deciding whether to present a psychiatric defense:

Q. What other problems were there with the psychiatric defense? Let’s start with Dr. Tanay, since we have been talking about him this morning.

A. I don’t think we can just talk about one doctor. I think you have to talk about the whole defense. It basically is a confession avoidance. It would have presented evidence to the jury which they did not have.

It would have made Mr. Layton part of a conspiracy with Jim Jones and/or Maria Katsarus or Carolyn Layton to go to the airstrip to shoot the pilot of the plane. And the problem with putting on the psychiatric defense is then the statements that Larry told the psychiatrists would all come out. And you would then run — Well, let me put it this way: You would then have it quite clear he was guilty of the conspiracy.

Q. But if he was insane, he would not be guilty?

A. Exactly. In other words, the decision was: Is the insanity defense going to work? Because if it doesn’t work, they are going to convict him, period. So the decision made on our assessment was: What did the jury think, number 1, of insanity defenses? And after Hinckley and after Dan White and after voir diring the jurors, we knew that they had an inclination not to accept insanity defenses.

We also knew that one of the weaknesses expressed by most of the jurors were that they did not really — at least a number of them — put much faith in opinions of psychiatrists who gave an examination of an individual years after the event to determine the state of mind of the individual at the time of the event.

In this case most of the psychiatric exams took place two and a half to three years after the incident. And one would have taken place eight years after.

Then one answer that was answered a number of times to the question that [U.S. Attorney] Mr. Russoniello put to them during voir dire was, “Does membership in a consult [sic, cult] increase or decrease the person’s responsibility?”

And they said: it doesn’t make any difference. And basically we are saying that just because you are a member of a cult doesn’t mean that you *1420should be absolved of any type of blame or guilt or responsibility.

In addition to the risks and problems identified in the foregoing testimony, counsel considered Layton’s strong resistance to the idea of presenting a psychiatric defense; the near-success achieved at the first trial without the defense; post-trial interviews of members of the first jury which indicated that a psychiatric defense might have confused the issues; and the differing diagnoses reached by the expert witnesses. The defense team also knew that the Government’s psychiatric expert would testify that Layton was not legally insane on the day of the events. Counsel “also considered the fact that a successful psychiatric defense would result in Lay-ton’s commitment to a mental institution for an indefinite period of time, whereas the strategy pursued at the first trial had persuaded many of the jurors to vote for an outright acquittal on all counts.”

Finally, defense counsel had succeeded in eliciting testimony concerning Layton’s state of mind during cross-examination of the Government’s witnesses. Counsel knew the jury would be instructed that this testimony could be considered in determining whether Layton had the specific intent for the offenses charged. Thus, the district noted, counsel secured favorable “psychiatric evidence from lay witnesses ... without risking the perils of a full-blown insanity defense.”

Each of the foregoing findings of fact is supported by the record; none is clearly erroneous. Based on these facts, the district court concluded that counsel’s decision not to present a psychiatric defense “was clearly a deliberate tactical choice made after extensive discussion among the attorneys and with the agreement of Layton himself.” The court noted that “[t]he defense lawyers vigorously argued their alternative theory that the government had failed to prove its case, a theory that had resulted in a hung jury during the first trial.”

We now know, of course, that counsel’s strategy proved unsuccessful. Lack of success, however, does not prove ineffective assistance of counsel. Rather, defendant must show that his attorney’s conduct transgressed the “wide range of professionally competent assistance,” a range within which counsel must be free to make reasonable strategic decisions based on counsel’s professional assessment of the facts and circumstances of the case. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.

We have repeatedly refused to second-guess counsel’s strategic decision to present or to forego a particular theory of defense when such decision was reasonable under the circumstances. See, e.g., Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984) (rejecting ineffective assistance claim where counsel made a tactical decision not to offer negligent homicide defense because he wanted to leave the jury with “the choice of findpng] [defendant] guilty of deliberate homicide or acquitting him outright”); Campbell v. Kincheloe, 829 F.2d 1453, 1462 (9th Cir.1987) (counsel acted within wide range of professionally competent assistance in deciding not to present mitigating evidence at sentencing proceeding, where counsel reasonably believed such presentation would have opened the door to damaging rebuttal evidence); Woratzeck, 820 F.2d at 1454 (counsel acted within range of responsible professional assistance in not pursuing “claim of right” defense to robbery and burglary charges, where counsel reasonably believed, inter alia, that such defense would have undermined defendant’s only complete defense — alibi).

In the present case, counsel’s decision to forego a psychiatric defense, a decision in which Layton acquiesced, was a reasonable tactical move. The facts found by the district court demonstrate that counsel had ample reason to believe that such a defense might prove counterproductive. The district court, therefore, correctly concluded that counsel’s decision was within the *1421range of professionally competent assistance. Under the Strickland test, Layton was not denied effective assistance of counsel.

C. Should This Matter Be Remanded For Further Evidentiary Hearings?

Layton’s final argument is that the district court improperly refused to continue the evidentiary hearing “one more day in order to [allow Layton to] secure the testimony of two additional experts.” Lay-ton asks us to remand for further hearings “to determine whether the appellant suffered prejudice as a result of the failure of counsel to research the law with regards to sentencing.”

The scope of an evidentiary hearing on a motion under § 2255 is committed to the discretion of the district court. Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988). “Section 2255 requires only that the judge give the prisoner’s claim ‘careful consideration and plenary processing, including full opportunity for presentation of the relevant facts.’ ” Id. (quoting Blackledge v. Allison, 431 U.S. 63, 82-83, 97 S.Ct. 1621, 1633, 52 L.Ed.2d 136 (1977)).

The district court’s determination that Layton suffered no prejudice by reason of counsel’s misunderstanding of the potential sentence rested entirely on the court’s factual finding that neither Layton nor his counsel would have pursued a different trial strategy had counsel been correctly informed. See Part VI(A) supra. Layton fails to explain how additional expert testimony could have influenced the court’s fact-based determination.

Moreover, Layton’s counsel had ample notice of the hearing and engaged in substantial preparation therefor. The hearing itself was lengthy, generating seven thick volumes of transcripts. In addition, the district court permitted counsel to supplement the testimony with numerous affidavits. The court clearly gave Layton’s motion “careful consideration and plenary processing.”

Under these circumstances, the district court did not abuse its discretion in declining to continue the hearing to permit Layton to present additional expert testimony.

CONCLUSION

We have carefully considered each of the many claims raised by Layton in these appeals. For the reasons set forth above, we AFFIRM the judgment in No. 87-1071 and AFFIRM the district court’s denial of Lay-ton’s § 2255 motion in No. 87-2576.

HUG, Circuit Judge:

Chua appeals the order denying his 28 U.S.C. § 2255 motion to vacate his prison sentence. Chua alleges various procedural errors and constitutional violations in his prosecution for violating United States laws against importation and distribution of controlled substances. We affirm.

I

BACKGROUND

On May 16, 1973, Chua Han Mow, a Malaysian citizen, was charged along with six others with violating United States laws against importation and distribution of controlled substances. Chua was in Malaysia at this time. Two of Chua’s codefendants who were in the United States were arrested and eventually pled guilty to one count each. They each received a 10-year sentence, and they each served approximately three years before being deported.

On August 4, 1975, Chua was arrested by Malaysian authorities and incarcerated in Malaysia until October 1, 1977, pursuant to the Malaysian Emergency Ordinance of 1969. On November 2, 1977, a superseding indictment in the United States was returned against Chua and others. Chua was charged with violating 21 U.S.C. §§ 846 and 963 (Count I — conspiracy to import heroin) and 21 U.S.C. § 959 (Counts II and III — distribution of heroin). Chua was arrested by Malaysian authorities a second time on December 21, 1977. He remained incarcerated in Malaysia until he was extradited to the United States on November 28, 1979.

At his arraignment, Chua pled not guilty. On April 20, 1980, Chua withdrew his plea of not guilty and pled guilty to Counts I and III. Count II was dismissed along with a separate indictment from New York. Chua was sentenced to thirty years imprisonment — 15 years each on Counts I and III to run consecutively.

A notice of appeal was filed, but then Chua requested that his appeal be dismissed. Chua sought collateral relief through a Rule 35 motion requesting the court to modify the sentence. This motion was denied.

In 1981, Chua filed pro se a motion in the sentencing court pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence. This motion was denied. Chua’s notice of appeal from this order was dismissed as untimely filed. On August 30, 1982, Chua filed a petition for writ of habeas corpus in the District Court for the District of Kansas. He raised the same issues which are raised in the current motion. That court dismissed the habeas corpus action without prejudice on the grounds that the pro se motion pursuant to section 2255 filed with the sentencing court had not exhausted the section 2255 remedy.

On November 22, 1982, Chua filed a second section 2255 motion in the sentencing court. The court denied the motion and this appeal followed.

II

SUCCESSIVE SECTION 2255 MOTIONS

Two of Chua’s contentions, that his guilty plea was not voluntary and that the United States lacked jurisdiction over the *1310crimes, were raised by Chua in a previous section 2255 motion. When Chua raised these claims in his second section 2255 motion, the sentencing court held that the claims were barred by the court’s previous determination on the merits of the claims.

The Supreme Court has held that a second hearing on a section 2255 motion may be denied on the basis of a previous section 2255 motion only if:

(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). This court requires that “[i]f the district court dismisses a petition on the basis of a prior adjudication, it must make a specific finding that the ends of justice would not be served by reaching the merits.” Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9th Cir.1971) (emphasis added). There is no indication that the district court in this case made this specific finding.

Although the district court erred in denying two of Chua’s claims on the basis of the previous section 2255 motion without making the specific finding that the ends of justice would not be served by reaching the merits, this court must still affirm “if the motion, files, and records in the case conclusively showed the motion to be without merit.” United States v. Donn, 661 F.2d 820, 824 (9th Cir.1981) (citing Sanders, 373 U.S. at 15, 83 S.Ct. at 1077).

Ill

VOLUNTARINESS OF CHUA’S GUILTY PLEA

Chua argues that his guilty plea was not voluntary and intelligent, as required by due process, because the sentencing judge failed to advise him of the consequences of his plea as required by Fed.R.Crim.P. 11. Specifically, Chua claims that he understood the maximum possible sentence he faced to be 15 years. He argues that had he known the maximum sentence was 30 years, he would not have pled guilty.

The district court’s findings as to the voluntariness of the guilty plea cannot be set aside unless clearly erroneous. Stone v. Cardwell, 620 F.2d 212, 213-214 (9th Cir.1980). The sentencing court found Chua’s plea to be voluntary when the court accepted Chua’s guilty plea and when the court denied Chua’s first section 2255 motion. These findings are supported by the record. At the plea hearing, the following exchange took place:

THE COURT: Now, you understand that by pleading guilty to two counts, the court may sentence you to a prison sentence of up to 15 years for each count, and, in addition, to a fine of $25,000 in each count? Do you understand that to begin with?

CHUA: Yes, Your Honor. Yes.

The sentencing court’s question properly advised Chua of the maximum possible penalty.

Chua argues that as a Malaysian citizen who was not adept at the English language he did not understand the meaning of “counts” or that they could be punished consecutively. The record does not support this assertion. The district court specifically found that Chua had “no language difficulty.” The plea hearing transcript supports this finding. The transcript also indicates that Chua understood the meaning of “counts.” In response to the court’s question about any promises made to induce his guilty plea, Chua stated that he had been “promised to withdraw the plea to Count II and dismiss the indictment against me in New York.” From the fact that Chua plea bargained to get a count dismissed, it can be inferred that he understood the nature of “counts.”

Chua’s other arguments regarding the voluntariness of his guilty plea are also without merit. Specifically, Chua argues that he did not understand that the Government had to prove specific intent to convict him. The sentencing court clearly ex*1311plained to Chua that the Government had to prove that Chua took part in a scheme “knowing that it was unlawful.” Chua also argues that he had a total lack of understanding of the United States Constitution. The sentencing court carefully reviewed with Chua the rights he was waiving by pleading guilty. Chua indicated that he understood these rights and that he understood that he was giving up these rights by pleading guilty. The plea hearing transcript conclusively shows that Chua’s claim that his plea was involuntary is without merit.

Chua also alleges ineffective assistance of counsel, but this contention is essentially indistinguishable from his assertion that he was not properly informed of the maximum possible sentence to the charges he faced. As discussed earlier, the sentencing court adequately informed Chua of the maximum possible sentence. Furthermore, the court asked Chua at the plea hearing if he was satisfied with his attorney and his attorney’s handling of the ease. Chua replied affirmatively. Chua also acknowledged that he understood that the length of the prison sentence was entirely up to the judge. “These solemn declarations made in open court carry a strong presumption of verity.” United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir.1983).

IV

JURISDICTION

A. Extraterritorial Jurisdiction

Chua argues that the United States lacked subject-matter jurisdiction to prosecute him because all the unlawful acts he committed were done in Malaysia. We disagree. There is no constitutional bar to the extraterritorial application of penal laws. United States v. King, 552 F.2d 833, 850 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977): Although courts have been reluctant to give extraterritorial effect to penal statutes, they have done so when congressional intent to give extraterritorial effect is clear. United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922). Section 959 specifically states that it is intended to reach prohibited acts committed outside the territorial jurisdiction of the United States. Sections 846 and 963, the statutory basis for the conspiracy count in this case, do not specifically provide for extraterritorial application. This court, however, has regularly inferred extraterritorial reach of conspiracy statutes on the basis of a finding that the underlying substantive statutes reach extraterritorial offenses. E.g., United States v. Cotten, 471 F.2d 744, 750 (9th Cir.), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); Brulay v. United States, 383 F.2d 345, 350 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). See also United States v. Layton, 509 F.Supp. 212, 225 (N.D.Cal.), appeal dismissed, 645 F.2d 681 (9th Cir.1981). Thus, the inference that Congress intended sections 846 and 963 to have extraterritorial application is readily made.

Before giving extraterritorial effect to penal statutes, courts have considered whether international law permits the exercise of jurisdiction. E.g., United States v. Schmucker-Bula, 609 F.2d 399, 402-403 (7th Cir.1980); King, 552 F.2d at 851; Rivard v. United States, 375 F.2d 882, 885 (5th Cir.1967).

International law recognizes five general principles whereby a sovereign may exercise this prescriptive jurisdiction: (1) territorial, wherein jurisdiction is based on the place where the offense is committed; (2) national, wherein jurisdiction is based on the nationality or national character of the offender; (3) protective, wherein jurisdiction is based on whether the national interest is injured; (4) universal, which amounts to physical custody of the offender; and (5) passive personal, wherein jurisdiction is based on the nationality or national character of the victim.

United States v. Smith, 680 F.2d 255, 257 (1st Cir.1982) (footnote omitted). Many cases involve the prosecution of United States citizens for acts committed abroad, *1312but extraterritorial authority is not limited to cases involving the nationality principle. Extraterritorial application of penal laws may be justified under any one of the five principles of extraterritorial authority. King, 552 F.2d at 851.

In King, this court upheld the authority of the United States to prosecute United States citizens for distribution of heroin in violation of section 959, the same statute involved in the present case. The distribution occurred in Japan, but the heroin was intended for importation into the United States. The court noted that the nationality principle applied because the appellants were United States citizens. However, the court stated that “appellants’ prosecution for violating § 959 could also be justified under the territorial principle, since American courts have treated that as an ‘objective’ territorial principle.” Id. at 851. Under the “objective” territorial principle,

Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power.

Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911). This rule applies to nations as well as states. Rocha v. United States, 288 F.2d 545, 549 (9th Cir.1961). In the present case, Chua intended to create a detrimental effect in the United States and committed acts which resulted in such an effect when the heroin unlawfully entered the country. Chua’s section 959 prosecution is therefore justified under the “objective” territorial principle. See Rivard, 375 F.2d at 887.

Other courts have relied on the protective principle to justify jurisdiction over extraterritorial crimes involving the unlawful importation of controlled substances. See United States v. Newball, 524 F.Supp. 715, 720 (E.D.N.Y.1981); United States v. Egan, 501 F.Supp. 1252, 1258 (S.D.N.Y. 1980). Noting that drug smuggling compromises a sovereign’s control of its own borders, the Seventh Circuit has suggested that it might uphold extraterritorial criminal jurisdiction over alien drug smugglers even if the territorial principle did not apply. Schmucker-Bula, 609 F.2d at 403. We are persuaded that the protective principle also justifies Chua’s section 959 prosecution.

The objective territorial principle and the protective principle are equally applicable to the conspiracy count. Furthermore, the Supreme Court has held that extraterritorial jurisdiction over aliens exists when a conspiracy had for its object crime in the United States and overt acts were committed in the United States by co-conspirators. Ford v. United States, 273 U.S. 593, 624, 47 S.Ct. 531, 541, 71 L.Ed. 793 (1927). See also United States v. Winter, 509 F.2d 975, 982 (5th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). In the present case, Chua’s co-conspirators committed acts in furtherance of the conspiracy inside the United States. Co-conspirator Tang was arrested at the San Francisco Airport as he attempted to retrieve suitcases containing heroin. Therefore, the United States does have jurisdiction to prosecute Chua.

B. The Single Convention on Narcotic Drugs

Chua argues that the 1970 Drug Act under which he was convicted and sentenced incorporates the Single Convention on Narcotic Drugs, which limits the extraterritorial jurisdiction of the United States. Chua points to Article 36(a)(2)(iv) of the Single Convention which states:

(iv) Serious offenses heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offense was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not *1313already been prosecuted and judgment given.

18 U.S.T. 1407, 1425 (emphasis added).

Chua cites no authority supporting the proposition that the Single Convention limits the extraterritorial jurisdiction of the United States. The plain language of the cited provision does not limit the jurisdiction of the United States. The only effect of the provision is that Malaysia would have been required to prosecute Chua if extradition had not been acceptable to Malaysia. The provision is not applicable in this case because extradition was acceptable to Malaysia.

V

DOUBLE JEOPARDY

Chua argues that he was convicted in Malaysia for the same offense as in the instant case and that the fifth amendment bar against double jeopardy was thereby violated. Chua also argues that the Single Convention proscribes a second prosecution in the United States. These arguments are frivolous.

This court rejected an identical double jeopardy argument in United States v. Richardson, 580 F.2d 946 (9th Cir.1978) (per curiam), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979). This court clearly held that “prosecution by a foreign sovereign does not preclude the United States from bringing criminal charges.” Id. at 947. The court also held that “the Convention neither affects the sovereignty of member nations nor embodies an agreement to refrain from prosecuting a defendant who has previously been tried by another signatory nation.” Id. Chua’s attempts to distinguish Richardson are unpersuasive.

VI

CREDIT FOR TIME SERVED

Chua claims that the Bureau of Prisons has improperly denied him credit for the time served in Malaysia from August 4, 1975 to October 1, 1977. The Bureau based its decision on a telegram from the State Department which stated Chua’s initial arrest was “in no way related to the offense for which Chua was arrested and deported.” The Government contends this issue is not properly before this court because Chua has not exhausted his administrative remedies.

Under 18 U.S.C. § 3568, “[t]he Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.” This court has held that “[i]t is the administrative responsibility of the Attorney General, the Department of Justice, and the Bureau of Prisons to compute sentences and apply credit where it is due. It is not the province of the sentencing court.” United States v. Clayton, 588 F.2d 1288, 1292 (9th Cir.1979). It is only when a prisoner has exhausted his administrative remedies that he becomes entitled to litigate the matter in the district court. United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir.1982).

This court recently explained why a petitioner must exhaust his administrative remedies before filing for collateral relief:

The requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court’s time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings.

Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.1983) (per curiam).

In this case, Chua has not exhausted his administrative remedies. The Bureau of Prisons has established an Administrative Remedy Procedure through which an inmate can seek formal review of a complaint which relates to any aspect of his imprisonment. 28 C.F.R. §§ 542.10-542.16 (1981). This is exactly the type of case in which exhaustion of administrative reme*1314dies should be required. There has not been the development of a factual record which would enable this court to review the Bureau’s decision. Chua himself states that there are disputed factual assertions when he argues that there should have been an evidentiary hearing in the court below. The district court properly refused to consider this issue.

VII

CONCLUSION

Under 28 U.S.C. § 2255, no evidentiary hearing need be held if the motion, files and records “conclusively show that the prisoner is entitled to no relief.” Since the motion, files and record do conclusively show that Chua is entitled to no relief, the district court properly denied Chua’s section 2255 motion without holding an evidentiary hearing.

AFFIRMED.

PER CURIAM:

Following his conviction for making false statements on a Customs declaration form, Walczak appeals the denial of four pretrial motions. He argues that the district court did not have jurisdiction, that the Customs officials’ search of his person and luggage violated the fourth amendment, that he should have been granted an evidentiary hearing on the suppression issue, and that he should have been permitted access to transcripts of the grand jury proceedings. We affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On October 10, 1984, Walczak, a United States citizen, was at the International Airport in Vancouver, British Columbia, Canada, about to board a non-stop flight to the United States. He completed Customs form 6059B, answering “no” to the statement “I am * * * carrying currency or monetary instruments over $5000 U.S. * * *.” U.S. Customs officials searched him and found over $52,000 in U.S. currency in his carry-on luggage. After questioning by U.S. Customs officials and by the Royal Canadian Mounted Police, he was released. Several days later, he voluntarily surrendered to U.S. Customs officials in Blaine, Washington.1

A grand jury at Seattle, Washington indicted Walczak under 18 U.S.C. § 1001 (1982) (False Statements) and 18 U.S.C. § 3238 (1982) (Extraterritorial Jurisdiction). He pled not guilty, and moved to suppress the evidence of his false statement on the grounds that the search was not a valid border search and that the United States customs officials lacked authority to search him at the Vancouver airport in Canada. He requested an evidentiary hearing on the suppression issue. He also moved to discover transcripts of the grand jury proceedings, and to dismiss the indictment on the grounds that the district court lacked juris*854diction over the offense on foreign soil. The court denied all the motions. Walczak then entered a conditional plea of guilty, was fined $5000, given a three year sentence, which was suspended except for thirty days, and placed on probation.

This court has jurisdiction over Walczak’s appeal pursuant to 28 U.S.C. § 1291 (1982). The issues on appeal are: (1) whether the district court in Western District of Washington had jurisdiction to try Walczak for an offense committed in Vancouver, Canada; (2) whether the customs officials’ search of Walczak and his hand-carried luggage at the Vancouver airport constituted a lawful search analogous to an extended border search;2 (3) whether the district court erred by denying Walczak’s motion to suppress without holding an evidentiary hearing; and (4) whether Walczak was entitled to access to the grand jury transcripts.

DISCUSSION

1. Jurisdiction of the District Court

The jurisdiction of the district court over an offense is a question of law to be reviewed de novo. See Dumdeang v. C.I.R., 739 F.2d 452, 453 (9th Cir.1984).

Walczak argues that a false statement made outside the borders is not punishable by a court of the United States. This argument fails for several reasons. First, section 1001 states that

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers-up by any trick, scheme or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same could contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

(Emphasis added.) The preclearance procedure is within the jurisdiction of the United States Customs Service, Department of the Treasury. Since the Department of the Treasury is a “department * * * of the United States,” the language of § 1001 literally applies to false statements made on Customs forms without regard to the place where the offense occurred.

Second, the rationale of the decision in United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), extends the reach of certain laws such as § 1001 to cover acts committed outside the United States by United States citizens.3 Bowman stated that some offenses

are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provisions in the law that the locus shall include the high seas arid foreign countries, but allows it to be inferred from the nature of the offense.

Id. at 98, 43 S.Ct. at 41. In the context of false statements on Customs declarations, § 1001 is such a law.

Third, at least as to Walczak, a United States citizen, the nationality principle of extraterritorial jurisdiction would apply: “American authority over [United States citizens] could be based upon the allegience they owe this country and its laws if the statute concerned * * * evinces a legislative intent to control actions within and without the United States.” United States v. King, 552 F.2d 833, 851 (9th Cir.1976). Therefore the federal court system had jurisdiction to entertain the prosecution of Walczak for a violation of § 1001 committed in Canada.

*855Section 3238 states, “[t]he 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 where the offender * * * is arrested or first brought.” Walczak surrendered to custom officials in the Western District of Washington, and therefore, that district court was the proper court in which to try him. Walezak’s argument to the contrary therefore fails.

II. The Extended Border Search

Where necessary to the determination of constitutional rights, this court will make an independent examination of the facts, the findings, and the record so that it can determine for itself whether established constitutional criteria have been respected. United States v. Bates, 533 F.2d 466, 468 (9th Cir.1976).

Walczak argues that the search violated the fourth amendment’s proscription against unreasonable searches. Searches at the border are reasonable as an essential prerogative of a sovereign to protect its border. Therefore persons and vehicles crossing the border into this country may be searched without probable cause or a warrant. United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977). The Supreme Court has held that searches may take place at the border or at its “functional equivalent.” Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). This is because modern air travel renders it “unreasonable to expect that persons can [always] be searched at the exact moment they cross an international border.” United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985).

Modern advances in air transportation call for even more responsive protective procedures. Accordingly, in 1974, the United States and Canada entered into an executive agreement authorizing United States Customs “preclearance” operations at various Canadian airports, including Vancouver Airport. Agreement on Air Transport Preclearance, May 8, 1974, United States-Canada, art. II, 25 U.S.T. 763, T.I.A.S. No. 7825.

International agreements other than treaties may fall into any of three categories: congressional-executive agreements, executed by the President upon specific authorizing legislation from Congress; executive agreements pursuant to treaty, executed by the President in accord with specific instructions in a prior, formal treaty; and executive agreements executed pursuant to the President’s own constitutional authority. Dole v. Carter, 444 F.Supp. 1065 (D.Kan.1977); see Restatement (Second) of Foreign Relations Law of the United States, §§ 119-121 (1965). Congress has not specifically authorized the President to conclude executive agreements such as this in the realm of civil aviation, but clearly did contemplate that the executive branch would negotiate “agreement[s] with foreign governments for the establishment or development of air navigation, including air routes and services.” 49 U.S.C. § 1462 (1982). The agreement is not specifically of the second category, because while there is some relationship to the Convention on International Civil Aviation, Dec. 7, 1944, T.I.A.S. 1591, 61 Stat. 1180, the Convention does not literally authorize the President to enter into agreements implementing it.

The Supreme Court has recognized that of necessity the President may enter into certain binding agreements with foreign nations not strictly congruent with the formalities required by the Constitution’s Treaty Clause [Art. II, § 2]. Weinberger v. Rossi, 456 U.S. 25, 30, 102 S.Ct. 1510, 1514, 71 L.Ed.2d 715 (1982). The authority to enter into executive agreements derives from the power over foreign relations accorded to the President by the Constitution. See Guerra v. Guajardo, 466 F.Supp. 1046 (S.D.Tx.1978), aff'd, 597 F.2d 769 (5th Cir.1979).

If an agreement is within the President’s power over foreign concords and relations, there seem to be no formal requirements as to how it must be made. It can be signed by the President or by his authority; it *856may be by delegation by him to his Secretaries of State, Ambassadors, or lesser authorized government officials. See generally L. Henkin, Foreign Affairs and the Constitution 184 (1972). The Supreme Court has never held an executive agreement ultra vires for lack of Senate consent. See id. at 184. Since the 1974 Agreement was designed to implement the goals of the Convention, which itself is an Article II treaty, and since Congress contemplated that agreements having to do with civil aviation would be negotiated by the executive branch, the agreement in question is among those which the President may conclude on his own authority.

Because constitutionally valid executive agreements are to be applied by the courts as the law of the land, United States v. Pink, 315 U.S. 203, 230, 62 S.Ct. 552, 565, 86 L.Ed. 796 (1942), the Agreement on Air Transport Preclearance has the full force of law, and it governs in this case.

The agreement provides that [t]he inspecting party may extend the application of any of its customs, immigration, agriculture and public health laws and regulations to aircraft, passengers, aircraft crew, baggage, cargo and aircraft stores in the territory of the other Party which are subject to preclearance to the extent consistent with the law of the country in which the inspection takes place.

Art. VII, at 767.

Various regulations define the activities which are to take place at preclearance facilities. “Preclearance is the tentative examination and inspection of air travelers and their baggage at foreign places where U.S. Customs personnel are stationed for that purpose.” 19 C.F.R. § 24.-18(a) (1985). “Articles in baggage * * * shall be considered as accompanying a passenger if examined at an established preclearance station and the baggage is hand-carried * * *.” 19 C.F.R. § 148.4(c) (1985). By allowing preclearance at Vancouver, the agreement authorizes U.S. Customs officials stationed at a preclearance facility to search persons bound for the United States as thoroughly as though the search were taking place at the border. Therefore the search of Walczak at the preclearance station did not violate the fourth amendment.

Walczak misunderstands the plain meaning of the language when he reads Article III of the agreement to require that U.S. Customs officials must have probable cause for a search. Article III states

Where preclearance exists in the territory of a Party, that Party shall: * * * (d) provide appropriate law enforcement assistance to the other Party’s inspectors including inter alia, upon request of the other Party’s inspection officer: (i) search by a law enforcement officer of the territory where inspection takes place of any person and his effects which are subject to preclearance in accordance with this Agreement if, under the law of the country in which preclearance takes place, that law enforcement officer has authority and sufficient grounds to believe that the person to be searched is seeking to carry into the other country merchandise or other articles the possession of which constitutes an offense under the law of the country in which preclearance takes place * * *.

The party which requires “sufficient grounds” to search is the party in which preclearance occurs, in this case Canada. The agreement does not require U.S. Customs officials to have probable cause in order to search. Consequently, the search of Walczak was lawful despite the lack of a warrant or probable cause, and the district court properly denied the motion to suppress the fruits of that search.

At oral argument, Walczak for the first time contended that the persons who searched him may not have been U.S. Customs officials. This argument was not raised before the district court, and is even inconsistent with the statement of facts in Walczak’s appellate brief, which refers to the searcher as a U.S. Customs official. It is well established that arguments which are not made to the district court need not *857be considered on appeal.4 Forro Precision, Inc. v. International Business Machines Corp., 745 F.2d 1283, 1286 (9th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 2664, 86 L.Ed.2d 280 (1985). In any event, the identity of the searcher is thus conceded by the appellant.

III. Denial of the Evidentiary Hearing

Whether an evidentiary hearing is appropriate rests in the reasoned discretion of the district court. United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), modified on other grounds, 609 F.2d 433 (1979). An evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in issue. United States v. Licavoli, 604 F.2d 613, 621 (9th Cir.1979).

Whether the Vancouver Airport is the functional equivalent of a border for persons intending to fly to the United States is a question of law. Thus the only relevant question of fact was whether Walczak intended to board a flight bound for the United States. In his Memorandum of Points and Authorities [in Support of Motion] to Suppress Evidence and Request Evidentiary Hearing, Walczak admitted that he was about to board a non-stop flight into the United States when he underwent customs processing. The uncontroverted fact that Walczak filled out Customs form 6059B is also evidence of his intent to enter the United States. Therefore, the record contains no controverted fact sufficient to require an evidentiary hearing, and the district court properly denied the motion for an evidentiary hearing.

IV. Denial of Access to the Grand Jury Transcripts

A request for grand jury transcripts is also within the sound discretion of the trial court. United States v. Murray, 751 F.2d 1528, 1533 (9th Cir.1985). Rule of Criminal Procedure 6(e)(3)(C)(i) permits a court to order disclosure of matters occurring before a grand jury in specified situations. A trial judge should order disclosure of grand jury transcripts only when the party seeking them has demonstrated that a “particularized need exists * * * which outweighs the policy of secrecy.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). The “particularized need” standard was reaffirmed in Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966), with a general suggestion in favor of disclosure.

Even under the permissive Dennis interpretation of the “particularized need” standard, the district court was correct in denying Walczak’s motion to discover the grand jury transcripts. Walczak gave two reasons why he sought discovery of the transcripts: to show that the grand jury had no evidence that the district court had jurisdiction to prosecute, and to determine whether the testimony of law enforcement officers improperly summarized the testimony of other agents. Neither reason constitutes “particularized need.” The first reason rests upon the incorrect premises that the district court did not have jurisdiction, and that the issue of jurisdiction was a question of fact for the grand jury. Walczak alleges no facts to support his second reason, which is therefore speculative. Consequently, the district court's denial of Walczak’s motion to discover the grand jury transcripts was correct.

CONCLUSION

For the foregoing reasons, the district court’s denial of appellant’s motions is AFFIRMED.

ORDER AND REASONS

VANCE, District Judge.

Before the Court is defendant Kingsley Robert’s motion to dismiss for lack of jurisdiction, pursuant to Federal Rule of Criminal *603Procedure 12(b)(2). For the reasons set forth below, the motion is DENIED.

I. BACKGROUND

Defendant Roberts was indicted by a federal grand jury on December 11, 1997 and charged with one count of sexual abuse of a minor, 18 U.S.C. § 2243(a), and one count of abusive sexual contact with a minor, 18 U.S.C. § 2244(a). The crimes allegedly occurred on board a cruise ship, the Carnival Cruise Lines’ vessel M/V CELEBRATION. Roberts is a national of St. Vincent & the Grenadines, and he was employed by the M/V CELEBRATION at the time the alleged incident took place. The victim is a United States citizen. The United States alleges that the crimes were committed “in an area within the special maritime and territorial jurisdiction of the United States” and that jurisdiction is proper under 18 U.S.C. §§ 7(1) or (8).

It is not disputed that the alleged incident occurred while the cruise ship was “in international waters approximately 63 miles off the coast of Puna Mols, Mexico.” Aff. of Kelly C. Bryson, Special Agent of the Federal Bureau of Investigation, at ¶ 2 (attached to Def.’s Mem., Exh. B). The following facts are also uncontested: Carnival Corporation (“Carnival”) owns the M/S CELEBRATION, and the company is incorporated under the laws of the Republic of Panama. See Carnival’s Annual Report, Form 10-K for the Securities and Exchange Commission (attached to Def.’s Mem., Exh. C) (hereinafter referred to as “Annual Report”); Letter from Arnaldo Perez, Vice Pres, and General Counsel of Carnival Corp., to Kelly Priceson, Federal Bureau of Investigation, Feb. 27, 1998, at ¶¶ 1, 3 (attached to Government’s Opp., Exh. A) (hereinafter referred to as “Carnival Letter”). The M/V CELEBRATION is registered in Liberia and flies a Liberian flag. Annual Report at 5; Government’s Opp. at 2. Carnivals shoreside operations and its corporate headquarters are located in Miami, Florida. Annual Report at 1,19; Carnival Letter ¶ 2. Carnival is a public company, its stock is traded on the New York Stock Exchange, and some of its shareholders are United States citizens. Annual Report at 1; Carnival Letter ¶¶ 6, 7. Further, the M/S CELEBRATION begins and ends its cruises in the United States, and the majority of its passengers are United States citizens. Carnival Letter ¶¶ 4-5. It is also undisputed that neither Panama nor Liberia has taken any steps to prosecute the defendant.

The defendant moves this Court to dismiss the indictment on the grounds that the United States does not have jurisdiction over the alleged incident. Roberts contends that jurisdiction is not proper under § 7(1) because the M/V CELEBRATION is not an American vessel. The defendant also states that jurisdiction under 18 U.S.C. § 7(8) is limited “[t]o the extent permitted by international law,” and, in this case, jurisdiction is not proper under accepted principles of international law. The government argues that jurisdiction is proper because the M/V CELEBRATION is owned in part by American citizens, and international law permits this exercise of jurisdiction under the objective territorial and the passive personality theories.

II. DISCUSSION

Defendant Roberts is charged with violating 18 U.S.C. §§ 2243(a) and 2244(a). Section 2243(a) provides that whoever “in the special maritime and territorial jurisdiction of the United States ... knowingly engages in a sexual act with another person who has attained the age of 12 years but has not attained the age of 16 years ... or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.” Section 2244(a)(3) states that “[wjhoever, in the special maritime and territorial jurisdiction of the United States ... knowingly engages in or causes sexual contact with or by another person, if so to do would violate subsection (a) of section 2243 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than two years, or both.”

Congressional intent determines the extraterritorial effect of penal statutes. See United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922) (“If punishment of [crimes against private individuals] is to be extended to include those committed *604outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.”); United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir.1994) (“To determine whether a given [penal] statute should have extraterritorial application in a specific case, courts look to congressional intent.” (internal quotations and citations omitted)); United States v. Baker, 609 F.2d 134, 136 (5th Cir.1980) (explaining that Congress may attach extraterritorial effect to its penal enactments).

In this case, Congress intended for §§ 2243 and 2244 to reach beyond the strict territorial jurisdiction of the United States because the statutes provide that the laws operate within the “special maritime and territorial jurisdiction ’ of the United States.” See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 691, 102 L.Ed.2d 818 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdiction reach of a statute.”); United States v. Montford, 27 F.3d 137, 139 (5th Cir.1994) (“Several federal criminal statutes cover acts within the special maritime and admiralty jurisdiction of the United States.” (citing 18 U.S.C. §§ 81 (arson), 113 (assault), and 1111 (murder))); United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir.1980) (“Congress expressly provided that certain acts, such as murder, violate federal law when committed on board ships registered in the United States or owned by American citizens.”).

The question in this case is whether the alleged crimes occurred within the special maritime and territorial jurisdiction of the United States as set forth in 18 U.S.C. §§ 7(1) and 7(8). These sections state that the special maritime and territorial jurisdiction includes:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.

18 U.S.C. §§ 7(1), (8) (emphasis added). The United States contends that jurisdiction is proper under either of these provisions.

A. 18 U.S.C. § 7(1)

There is Fifth Circuit caselaw which suggests that § 7(1) extends the special maritime and territorial jurisdiction of the United States to the “high seas,” without regard to whether the vessel is in whole or in part American-owned. See Nixon v. United States, 352 F.2d 601, 602 (5th Cir.1965) (stating that record supported finding that murder and assault took place on high seas, so that ease was within special maritime and territorial jurisdiction of United States). See also United States v. Tanner, 471 F.2d 128, 140 (7th Cir.1972) (noting that offenses occurred on foreign vessel and § 7(1) would require showing that offenses took place “either upon the ‘high seas’ or upon any other body of water that is both within the United States’ admiralty and maritime jurisdiction and without the jurisdiction of any particular-state”); United States v. Walker, 575 F.2d 209, 213 (9th Cir.1978) (implying that special maritime and territorial jurisdiction of the United States includes acts that occurred on the high seas and outside states’ boundaries). However, in United States v. McRary, 665 F.2d 674, 677 (5th Cir.1982), the Fifth Circuit stated that § 7 “necessarily restricts its reach to vessels owned in whole or in part by United States citizens.” See also United States v. Ross, 439 F.2d 1355, 1357-58 (9th Cir.1971) (stating that § 7(1) requires that offense occur on high seas and that vessel is registered to the United States).

In this case, it is undisputed that the alleged offenses occurred “in international waters approximately 63 miles off the *605coast of Puna Mols, Mexico.” Aff. of Ms. Bryson ¶2. The “high seas” encompasses that part of the ocean which is beyond the territorial sea of any country. See United States v. Louisiana, 394 U.S. 11, 23, 89 S.Ct. 773, 781, 22 L.Ed.2d 44 (1969) (“Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation.”); Kollias v. D & G Marine Maintenance, 29 F.3d 67, 69 (2d Cir.1994) (“[T]he high seas ... have been defined as those waters beyond the territorial waters of the United States, which extend three miles from the coast.”). Although the United States has historically adhered to a territorial sea of three miles, international conventions permit a territorial sea of up to 12 miles. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 n. 8, 109 S.Ct. 683, 692 n. 8, 102 L.Ed.2d 818 (1989). It is undisputed that the alleged offenses in this case occurred well outside the 12-mile limit of any nation.

However, although it is undisputed that the M/V CELEBRATION is owned by the Carnival Corporation, and that some of Carnival Corporation’s shareholders are United States citizens, the M/V CELEBRATION is not an American vessel and “courts have applied [the ownership provision of 18 U.S.C. § 7(1) ] only to vessels having either United States registry or no registry at all.” Restatement (Third) of Foreign Relations Law § 502, Reporters’ Note 4 (1987) (hereinafter “Restatement”). See, e.g., Ross, 439 F.2d at 1358 (finding that ease met requirements set forth in § 7(1) because vessel was registered in United States); Nixon, 352 F.2d at 602 (noting, alternatively, that jurisdiction would have attached because offenses occurred on vessel of United States ownership and registry); United States v. Keller, 451 F.Supp. 631, 636 (D.P.R.1978) (finding jurisdiction under § 7(1) based, in part, on Florida registration and presence on board of United States flag), aff'd on other grounds, United States v. Arra, 630 F.2d 836, 840 (1st Cir.1980).

Given the apparent conflict in Fifth Circuit authority over whether § 7(l)’s special maritime jurisdiction covers prohibited acts committed on foreign flag vessels on the high seas, and the fact that the Court finds jurisdiction under 18 U.S.C. § 7(8), see discussion infra, the Court finds it unnecessary to resolve whether jurisdiction likewise lies under § 7(1).

B. 18 U.S.C. § 7(8)

The Court concludes that jurisdiction over this ease is proper pursuant to 18 U.S.C. § 7(8). Section 7(8) was added to the United States’ special maritime and territorial jurisdiction in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 120002, 108 Stat. 2021 (Sept. 13, 1994). The statute expressly states that the special maritime jurisdiction of the United States is extended to include “[t]o the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.” 18 U.S.C. § 7(8).

Defendant Roberts argues that international treaties and principles of international law do not permit this Court to exercise jurisdiction over this matter. First, Roberts contends that several international treaties prohibit the United States from asserting its jurisdiction because the treaties state that foreign* vessels are subject to the exclusive jurisdiction of the country whose flag they fly under.1 Second, Roberts insists that this ease does not fall under any of the recognized exceptions to the principle of the “law of the flag.”

The treaties relied upon by the defendant do not prevent this Court from exercising jurisdiction over the offensive acts. Defendant has failed to show that any of the treaties are self-executing, and treaties “may act to deprive the United States, and hence its courts, of jurisdiction over property and individuals that would otherwise be subject to that jurisdiction” only if the treaties are *606self-executing. United States v. Postal, 589 F.2d 862, 875 (5th Cir.1979). It is also well established that unless a treaty is self-executing, “that is, unless it expressly creates privately enforceable rights — an individual citizen does not have standing to protest when one nation does not follow the terms of such agreement.” United States v. Bent-Santana, 774 F.2d 1545, 1550 (11th Cir.1985) (citing Foster v. Neilson, 2 Pet. (27 U.S.) 253, 313-14, 7 L.Ed. 415 (1829)).2

In Postal, the Fifth Circuit explained that “[t]he question whether a treaty is self-executing is a matter of interpretation for the courts when the issue presents itself in litigation and, as is the case of all matters of interpretation, the courts attempt to discern the intent of the parties to the agreement so as to carry out their manifest purpose.” Postal, 589 F.2d at 876. The Fifth Circuit went on to expressly find that Article VI of the Convention On the High Seas, a treaty and provision relied upon by defendant, is not self-executing and therefore not the equivalent of federal legislation. Postal, 589 F.2d at 884. The court in that case concluded that the United States, by ratifying the Convention on the High Seas, did not intend “to incorporate the restrictive language of article 6, which limits the permissible exercise of jurisdiction to those provided by treaty, into its domestic law and make it available in a criminal action as a defense to the jurisdiction of its courts.” Id. at 878. Bound by Fifth Circuit authority, this Court must conclude that Article VI of the Convention on the High Seas is not self-executing. As a result, defendant Roberts may not rely upon an alleged violation of the treaty as a defense to this Court’s jurisdiction.

Similarly, this Court concludes that Articles 91 and 92 of the United Nations Convention on the Law of the Sea are not self-executing.3 These provisions, as cited by the defendant, are identical to Article VI of the Convention on the High Seas. Based on the Fifth Circuit’s decision in Postal, this Court must conclude that Articles 91 and 92 are not self-executing. Thus, these provisions require implementing legislation before they may be enforced in the courts by individuals. See George K. Walker, The Interface of Criminal Jurisdiction and Actions Under the United Nations Charter With Admiralty Law, 20 Tul.Mar.L.J. 217, 225 n. 41 (1996) (“Many of the High Seas Convention and Territorial Sea Convention’s provisions are copied in the 1982 [Law of the Sea] Convention; thus, the need for implementing legislation seems fairly clear.” (citing Postal)).4

Defendant has also failed to demonstrate that the Treaty of Friendship, Commerce and Navigation between Liberia and the United States is self-executing. In any event, the language of the treaty does not specify that a vessel is subject to the exclusive jurisdiction of the country whose flag it flies under. Rather, it merely states that vessels under the flag of either the United States or Liberia shall be “deemed to be the vessels of the Party whose flag is flown.” Treaty of Friendship, Commerce and Navigation, Article XV. Thus, the treaty itself does not prohibit the United States from exercising jurisdiction over the alleged offensive acts if jurisdiction is otherwise permitted under international law.

International law recognizes five theories of jurisdiction, under which a country is permitted to exercise extraterritorial criminal jurisdiction: (1) territorial jurisdiction — ■ both subjective and objective — based on the location where the offense is committed or the effects of the act; (2) nationality jurisdic*607tion, based on the nationality of the offender; (3) protective jurisdiction, based on the protection of the nation’s interest, security, and integrity; (4) universal jurisdiction, which amounts to physical custody of the offender;5 and (5) passive, personality jurisdiction, based on the nationality of the victim. See United States v. Marino-Garcia, 679 F.2d 1373, 1380-82 (11th Cir.1982); United States v. Smith, 680 F.2d 255, 257-58 (1st Cir.1982); Rivard v. United States, 375 F.2d 882, 885-86 (5th Cir.1967).

In this case, the prosecution of Kingsley Roberts is a valid exercise of both passive personality jurisdiction and objective territorial jurisdiction. The principle of passive personality “asserts that a state may apply law — particularly criminal law — to an act committed outside its territory by a person not its national where the victim of the act was its national.” Restatement § 402 cmt. g. Although courts are reluctant to embrace passive personality jurisdiction for ordinary torts or crimes, see id., international law does not prohibit Congress from incorporating this principle into its legislation.6 Indeed, prior to the enactment of § 7(8), Congress applied the passive personality principle in the Omnibus Diplomatic Security and Antiterrorism Act of 1986, 18 U.S.C. § 2332 which makes it a crime to kill, or attempt or conspire to kill, or to cause serious bodily injury, to a national of the United States outside the territory of the United States.7 Moreover, some courts have recently expressed approval of passive personality jurisdiction. See, e.g., United States v. Rezaq, 134 F.3d 1121, 1133 (D.C.Cir.1998) (aircraft piracy); United States v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir.1991) (accessory after the fact); United States v. Yunis, 924 F.2d 1086, 1091 (D.C.Cir.1991) (hijacking of Jordanian airliner); United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984) (murder of DEA agent). In addition, Congress is moving towards accepting passive personality jurisdiction outside the realm of terrorism, as evidence by several pieces of legislation. See Watson, supra note 5, at 11-12. For example, in 1987, Congress expanded United States’ special maritime jurisdiction to include crimes against America “outside the jurisdiction of any nation.” 18 U.S.C. § 7(7).

This move towards accepting passive personality jurisdiction continued with the passage of § 7(8), which authorizes the United States to exercise its jurisdiction over “any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.” 18 U.S.C. § 7(8). Given the specific requirement that the vessel have a scheduled departure from or arrival in the United States, this statute expresses concern for United States nationals but limits jurisdiction to vessels that are most likely to have a connection to America. Indeed, in this case, the MTV CELEBRATION originates and terminates its voyage in the United States, and the majority of its passengers are American citizens. Further, Carnival Corporation has its corporate headquarters in this country and some of its shareholders are United States citizens. The Court must also add that the country whose flag the cruise ship flies under, Liberia, has little to no interest in the alleged offense because neither the victim nor the defendant are Liberian, the vessel does not operate in or around Liberian territory, and the vessel’s owners center their corporate operations in the United States. In short, the Court finds that jurisdiction is reasonable in this case pursuant to § 7(8), and it is permitted by international law because it does not intrude upon another sovereign’s interest, and it serves to protect America’s nationals abroad.

The objective territorial principle also supports jurisdiction over this matter. Jurisdiction under this principle is asserted *608over foreigners for an act committed outside the United States that produces substantial and detrimental effects within the United States. United States v. Baker, 609 F.2d 134, 138 (5th Cir.1980) (“The objective territorial principle has been asserted successfully where there was proof that defendant’s actions ... produced some effect within the United States .... ”); Rivard, 375 F.2d at 887 (“ ‘Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm....’”) (quoting Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911)).

In this case, the Court agrees with the result reached in United States v. Pizdrint, 983 F.Supp. 1110 (M.D.Fla.1997), and finds that the alleged sexual assault committed by the defendant has an effect in the United States and exercising jurisdiction would not be unreasonable. As noted above, and by the court in Pizdrint, the M/V CELEBRATION engages in substantial business in the United States and regularly operates in United States territory. The vessel originates and terminates its voyage in the United States, and the majority of its passengers are American citizens. As a result of the alleged offense, the Federal Bureau of Investigation was required to conduct an investigation and arrest the defendant. The victim will have to undergo psychiatric counseling in the United States. The Court notes once again that no other country — Liberia, Panama, or Roberts’ home country — -has shown any interest in prosecuting the defendant. Further, although the objective territorial principle does not require that the defendant has a connection to the United States, the Government states that Roberts sometimes lives in Alabama when the cruise ship is docked in the United States.

For all of the foregoing reasons, the Court finds that this case clearly falls within the jurisdictional boundaries of §§ 7(1) and 7(8). Therefore,

IT IS ORDERED that defendant’s motion to dismiss is DENIED.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

Appellant Fawaz Yunis challenges his convictions on conspiracy, aircraft piracy, and hostage-taking charges stemming from the hijacking of a Jordanian passenger air*1089craft in Beirut, Lebanon. He appeals from orders of the district court denying his pretrial motions relating to jurisdiction, illegal arrest, alleged violations of the Posse Comitatus Act, and the government’s withholding of classified documents during discovery. Yunis also challenges the district court’s jury instructions as erroneous and prejudicial.

Although this appeal raises novel issues of domestic and international law, we reject Yunis’ objections and affirm the convictions.

I. BACKGROUND

On June 11, 1985, appellant and four other men boarded Royal Jordanian Airlines Flight 402 (“Flight 402”) shortly before its scheduled departure from Beirut, Lebanon. They wore civilian clothes and carried military assault rifles, ammunition bandoleers, and hand grenades. Appellant took control of the cockpit and forced the pilot to take off immediately. The remaining hijackers tied up Jordanian air marshals assigned to the flight and held the civilian passengers, including two American citizens, captive in their seats. The hijackers explained to the crew and passengers that they wanted the plane to fly to Tunis, where a conference of the Arab League was under way. The hijackers further explained that they wanted a meeting with delegates to the conference and that their ultimate goal was removal of all Palestinians from Lebanon.

After a refueling stop in Cyprus, the airplane headed for Tunis but turned away when authorities blocked the airport runway. Following a refueling stop at Palermo, Sicily, another attempt to land in Tunis, and a second stop in Cyprus, the plane returned to Beirut, where more hijackers came aboard. These reinforcements included an official of Lebanon’s Amal Militia, the group at whose direction Yunis claims he acted. The plane then took off for Syria, but was turned away and went back to Beirut. There, the hijackers released the passengers, held a press conference reiterating their demand that Palestinians leave Lebanon, blew up the plane, and fled from the airport.

An American investigation identified Yunis as the probable leader of the hijackers and prompted U.S. civilian and military agencies, led by the Federal Bureau of Investigation (FBI), to plan Yunis’ arrest. After obtaining an arrest warrant, the FBI put “Operation Goldenrod” into effect in September 1987. Undercover FBI agents lured Yunis onto a yacht in the eastern Mediterranean Sea with promises of a drug deal, and arrested him once the vessel entered international waters. The agents transferred Yunis to a United States Navy munitions ship and interrogated him for several days as the vessel steamed toward a second rendezvous, this time with a Navy aircraft carrier. Yunis was flown to Andrews Air Force Base from the aircraft carrier, and taken from there to Washington, D.C. In Washington, Yunis was arraigned on an original indictment charging him with conspiracy, hostage taking, and aircraft damage. A grand jury subsequently returned a superseding indictment adding additional aircraft damage counts and a charge of air piracy.

Yunis filed several pretrial motions, among them a motion to suppress statements he made while aboard the munitions ship. In United States v. Yunis (Yunis I), 859 F.2d 953 (D.C.Cir.1988), this court reversed a district court order suppressing the statements, and authorized their introduction at trial. We revisited the case on a second interlocutory appeal relating to discovery of classified information, reversing the district court’s disclosure order. United States v. Yunis (Yunis II), 867 F.2d 617 (D.C.Cir.1989).

Yunis admitted participation in the hijacking at trial but denied parts of the government’s account and offered the affirmative defense of obedience to military orders, asserting that he acted on instructions given by his superiors in Lebanon’s Amal Militia. The jury convicted Yunis of conspiracy, 18 U.S.C. § 371 (1988), hostage taking, 18 U.S.C. § 1203 (1988), and air piracy, 49 U.S.C. App. § 1472(n) (1988). However, it acquitted him of three other *1090charged offenses that went to trial: violence against people on board an aircraft, 18 U.S.C. § 32(b)(1) (1988), aircraft damage, 18 U.S.C. § 32(b)(2) (1988), and placing a destructive device aboard an aircraft, 18 U.S.C. § 32(b)(3) (1988). The district court imposed concurrent sentences of five years for conspiracy, thirty years for hostage taking, and twenty years for air piracy. Yunis appeals his conviction and seeks dismissal of the indictment.

II. Analysis

Yunis argues that the district court lacked subject matter and personal jurisdiction to try him on the charges of which he was convicted, that the indictment should have been dismissed because the government seized him in violation of the Posse Comitatus Act and withheld classified materials useful to his defense, and that the convictions should be reversed because of errors in the jury instructions. We consider these claims in turn.

A. Jurisdictional Claims

Yunis appeals first of all from the district court’s denial of his motion to dismiss for lack of subject matter and personal jurisdiction. See United States v. Yunis, 681 F.Supp. 896 (D.D.C.1988). Appellant’s principal claim is that, as a matter of domestic law, the federal hostage taking and air piracy statutes do not authorize assertion of federal jurisdiction over him. Yunis also suggests that a contrary construction of these statutes would conflict with established principles of international law, and so should be avoided by this court. Finally, appellant claims that the district court lacked personal jurisdiction because he was seized in violation of American law.

1. Hostage Taking Act

The Hostage Taking Act provides, in relevant part:

(a) [Wjhoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or to abstain from any act ... shall be punished by imprisonment by any term of years or for life.

(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless — •

(A) the offender or the person seized or detained is a national of the United States;

(B) the offender is found in the United States; or

(C) the governmental organization sought to be compelled is the Government of the United States.

18 U.S.C. § 1203. Yunis claims that this statute cannot apply to an individual who is brought to the United States by force, since those convicted under it must be “found in the United States.” But this ignores the law’s plain language. Subsections (A), (B), and (C) of section 1203(b)(1) offer independent bases for jurisdiction where “the offense occurred outside the United States.” Since two of the passengers on Flight 402 were U.S. citizens, section 1203(b)(1)(A), authorizing assertion of U.S. jurisdiction where “the offender or the person seized or detained is a national of the United States,” is satisfied. The statute’s jurisdictional requirement has been met regardless of whether or not Yunis was “found” within the United States under section 1203(b)(1)(B).

Appellant’s argument that we should read the Hostage Taking Act differently to avoid tension with international law falls flat. Yunis points to no treaty obligations of the United States that give us pause. Indeed, Congress intended through the Hostage Taking Act to execute the International Convention Against the Taking of Hostages, which authorizes any signatory state to exercise jurisdiction over persons who take its nationals hostage “if that State considers it appropriate.” International Convention Against the Taking of Hostages, opened for signature Dec. 18, 1979, art. 5, para. 1, 34 U.N. GAOR Supp. (No. 39), 18 I.L.M. 1456, 1458. See H.R. Conf. Rep. No. 1159, 98th Cong., 2d Sess. *1091418 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3710, 3714.

Nor is jurisdiction precluded by norms of customary international law. The district court concluded that two jurisdictional theories of international law, the “universal principle” and the “passive personal principle,” supported assertion of U.S. jurisdiction to prosecute Yunis on hijacking and hostage-taking charges. See Yunis, 681 F.Supp. at 899-903. Under the universal principle, states may prescribe and prosecute “certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism,” even absent any special connection between the state and the offense. See Restatement (ThiRd) of the Foreign Relations Law of the United States §§ 404, 423 (1987) [hereinafter Restatement]. Under the passive personal principle, a state may punish non-nationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime. See id. at § 402 comment g; United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984) (passive personal principle invoked to approve prosecution of Colombian citizen convicted of shooting U.S. drug agents in Colombia), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985).

Relying primarily on the Restatement, Yunis argues that hostage taking has not been recognized as a universal crime and that the passive personal principle authorizes assertion of jurisdiction over alleged hostage takers only where the victims were seized because they were nationals of the prosecuting state. Whatever merit appellant’s claims may have as a matter of international law, they cannot prevail before this court. Yunis seeks to portray international law as a self-executing code that trumps domestic law whenever the two conflict. That effort misconceives the role of judges as appliers of international law and as participants in the federal system. Our duty is to enforce the Constitution, laws, and treaties of the United States, not to conform the law of the land to norms of customary international law. See U.S. Const. art. VI. As we said in Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C.Cir.1988): “Statutes inconsistent with principles of customary international law may well lead to international law violations. But within the domestic legal realm, that inconsistent statute simply modifies or supersedes customary international law to the extent of the inconsistency.” Id. at 938. See also Federal Trade Comm’n v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1323 (D.C.Cir.1980) (U.S. courts “obligated to give effect to an unambiguous exercise by Congress of its jurisdiction to prescribe even if such an exercise would exceed the limitations imposed by international law”).

To be sure, courts should hesitate to give penal statutes extraterritorial effect absent a clear congressional directive. See Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949); United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 41, 67 L.Ed. 149 (1922). Similarly, courts will not blind themselves to potential violations of international law where legislative intent is ambiguous. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Crunch) 64, 118, 2 L.Ed. 208 (1804) (“[A]n act of congress ought never to be construed to violate the law of nations, if any other possible construction remains_”). But the statute in question reflects an unmistakable congressional intent, consistent with treaty obligations of the United States, to authorize prosecution of those who take Americans hostage abroad no matter where the offense occurs or where the offender is found. Our inquiry can go no further.

2. Antihijacking Act

The Antihijacking Act provides for criminal punishment of persons who hijack aircraft operating wholly outside the “special aircraft jurisdiction” of the United States, provided that the hijacker is later “found in the United States.” 49 U.S.C. *1092App. § 1472(n). Flight 402, a Jordanian aircraft operating outside of the United States, was not within this nation’s special aircraft jurisdiction. See 49 U.S.C. App. § 1301. Yunis urges this court to interpret the statutory requirement that persons prosecuted for air piracy must be “found” in the United States as precluding prosecution of alleged hijackers who are brought here to stand trial. But the issue before us is more fact-specific, since Yunis was indicted for air piracy while awaiting trial on hostage-taking and other charges; we must determine whether, once arrested and brought to this country on those other charges, Yunis was subject to prosecution under the Antihijacking Act as well.

The Antihijacking Act of 1974 was enacted to fulfill this nation’s responsibilities under the Convention for the Suppression of Unlawful Seizure of Aircraft (the “Hague Convention”), which requires signatory nations to extradite or punish hijackers “present in” their territory. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, art. 4, para. 2, Dec. 16, 1970, 22 U.S.T. 1643, 1645, T.I.A.S. No. 7192. See H. Rep. No. 885, 93d Cong., 2d Sess. 10 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 3975, 3978; S. Rep. No. 13, 93d Cong., 1st Sess. 1, 3 (1973). This suggests that Congress intended the statutory term “found in the United States” to parallel the Hague Convention’s “present in [a contracting state’s] territory,” a phrase which does not indicate the voluntariness limitation urged by Yun-is. Moreover, Congress interpreted the Hague Convention as requiring the United States to extradite or prosecute “offenders in its custody,” evidencing no concern as to how alleged hijackers came within U.S. territory. S. Rep. No. 13, 93d Cong., 1st Sess. at 3; see H. Rep. No. 885, 93d Cong., 2d Sess. at 10, 1974 U.S.Code Cong. & Admin. News 3978 (Hague Convention designed to close “gap” in Tokyo Convention, which did not require states to prosecute or extradite hijackers “in [their] custody”). From this legislative history we conclude that Yunis was properly indicted under section 1472(n) once in the United States and under arrest on other charges.

The district court correctly found that international law does not restrict this statutory jurisdiction to try Yunis on charges of air piracy. See Yunis, 681 F.Supp. at 899-903. Aircraft hijacking may well be one of the few crimes so clearly condemned under the law of nations that states may assert universal jurisdiction to bring offenders to justice, even when the state has no territorial connection to the hijacking and its citizens are not involved. See id. at 900-01; United States v. Georgescu, 723 F.Supp. 912, 919 (E.D.N.Y.1989); Restatement § 404 & reporters’ note 1, § 423; Randall, Universal Jurisdiction under International Law, 66 Tex.L. Rev. 785, 815-34 (1988). But in any event we are satisfied that the Antihijacking Act authorizes assertion of federal jurisdiction to try Yunis regardless of hijacking’s status vel non as a universal crime. Thus, we affirm the district court on this issue.

3. Legality of Seizure

Yunis further argues that even if the district court had jurisdiction to try him, it should have declined to exercise that jurisdiction in light of the government’s allegedly outrageous conduct in bringing him to the United States. This claim was rejected by the district court before trial. See United States v. Yunis, 681 F.Supp. 909, 918-21 (D.D.C.1988), rev’d on other grounds, 859 F.2d 953 (Yunis I).

Principally, Yunis relies on United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), in which the court held that due process requires courts to divest themselves of personal jurisdiction acquired through “the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.” Id. at 275. Toscanino establishes, at best, only a very limited exception to the general rule (known as the “Ker-Frisbie doctrine”) that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ ” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) (citing, inter alia, Ker v. Illinois, 119 U.S. 436, 7 *1093S.Ct. 225, 30 L.Ed. 421 (1886)). Toscani-no’s rule has, moreover, been limited to cases of “torture, brutality, and similar outrageous conduct,” United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), and the Supreme Court has since reaffirmed the Ker-Frisbie doctrine, see Immigration and Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984); United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980).

Even assuming, arguendo, that a district court could correctly dismiss a case otherwise properly before it for the reasons given in Toscanino, we find no merit in Yunis’ claim. In Yunis I, we reviewed the facts of Operation Goldenrod in some detail, including the deception used to arrest Yunis, his injuries and hardships while in custody, and the delay between his arrest and arraignment in the United States. The court sought to determine whether or not these circumstances voided Yunis’ waiver of Fifth and Sixth Amendment rights; we concluded that while the government’s conduct was neither “picture perfect” nor “a model for law enforcement behavior,” the “discomfort and surprise” to which appellant was subjected did not render his waiver invalid. Yunis I, 859 F.2d at 969. Similarly, we now find nothing in the record suggesting the sort of intentional, outrageous government conduct necessary to sustain appellant’s jurisdictional argument. Cf. Sami v. United States, 617 F.2d 755, 774 (D.C.Cir.1979) (finding “no shocking behavior characterized by abduction or brutality which would support an actionable constitutional claim”).

B. Posse Comitatus Act

Next, Yunis appeals from the district court’s denial of his motion to dismiss on the basis of the government’s alleged violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (1988), which establishes criminal penalties for willful use of “any part of the Army or the Air Force” in law enforcement, unless expressly authorized by law. See United States v. Yunis, 681 F.Supp. 891 (D.D.C.1988). Despite the Posse Comitatus Act’s express limitation to the Army and Air Force, appellant seeks dismissal of the indictment on the grounds that the Navy played a direct role in Operation Goldenrod.

We cannot agree that Congress’ words admit of any ambiguity. By its terms, 18 U.S.C. § 1385 places no restrictions on naval participation in law enforcement operations; an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. See H.R. Rep. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in 1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R. Rep. No. 71]; Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.Crim.L.Rev. 703, 709-10 (1976). Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military. See H.R. Rep. No. 71 at 4, 1981 U.S.Code Cong: & Admin.News 1786. Nothing in this history suggests that we should defy the express language of the Posse Comita-tus Act by extending it to the Navy, and we decline to do so. Accord United States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986); see H.R. Rep. No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy “not legally bound” by Posse Comitatus Act).

Furthermore, some courts have taken the view that the Posse Comitatus Act imposes no restriction on use of American armed forces abroad, noting that Congress intended to preclude military intervention in domestic civil affairs. See Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); D’Aquino v. United States, 192 F.2d 338, 351 (9th Cir.1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). And even if these difficulties could be. overcome, a remedial problem would remain, as dismissal of all charges against Yunis might well be *1094an inappropriate remedy if violations of the Posse Comitatus Act were found. See United States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal as remedy for alleged violation of Posse Comitatus Act on Ker-Frisbie grounds), cert. denied, 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 396 (1973); see also United States v. Hartley, 796 F.2d 112, 115 (5th Cir.1986) (noting courts’ hesitation to adopt exclusionary rule for violations of Posse Comitatus Act); United States v. Roberts, 779 F.2d at 568 (refusing to adopt exclusionary rule).

Nor is Yunis helped by 10 U.S.C. § 375 (1988), which requires the Secretary of Defense to issue regulations prohibiting “direct participation” by military personnel in a civilian “search, seizure, arrest, or other similar activity” unless expressly authorized by law. Reliance on this provision faces the same remedial hurdle as direct reliance on the Posse Comitatus Act: Under the Ker-Frisbie doctrine, outright dismissal of the charges against Yunis would not be an appropriate remedy for legal violations relating to his arrest. See United States v. Crews, 445 U.S. at 474, 100 S.Ct. at 1251. Nor would a violation of the regulations at issue amount to a constitutional violation, making application of an exclusionary rule or similar prophylactic measures inappropriate. See United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 1472-73, 59 L.Ed.2d 733 (1979).

In any event, we agree with the district court that no governmental illegality occurred. Regulations issued under 10 U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act, but interpret that Act as allowing “indirect assistance” to civilian authorities that does not “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” 32 C.F.R. § 213.10(a)(7) (1987). The regulations are consistent with judicial interpretations of the Posse Comitatus Act; in fact, they incorporate one of three tests employed to identify violations. See Yunis, 681 F.Supp. at 892 (setting out three tests); United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D.1975) (“[T]he feared use which is prohibited by the posse comitatus statute is that which is regulatory, proscriptive or compulsory in nature ....”), aff'd sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977).

The district court found that Navy personnel played only a “passive” role in housing, transporting, and caring for Yunis while he was in the custody of the FBI, and that “[njone of the Navy’s activities constituted the exercise of regulatory, proscriptive, or compulsory military power.” Yun-is, 681 F.Supp. at 895-96. Nor did the Navy’s participation in Operation Goldenrod violate either of the other judicial tests for violations of the Posse Comitatus Act: The Navy’s role did not amount to “direct active involvement in the execution of the laws,” and it did not “pervade the activities of civilian authorities.” Id. at 895. We see no error in this assessment of the record, and accordingly conclude that no violation of military regulations occurred.

C. Discovery Claim

Yunis appeals from the district court’s denial of his motion to dismiss on the basis that pre-trial discovery provisions of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. (1988), infringe upon procedural protections guaranteed him by the Fifth and Sixth Amendments. See Pretrial Memorandum Order No. 13, Yunis, Crim. No. 87-0377 (D.D.C. Feb. 15, 1989), reproduced in Appellant’s Appendix at Tab 14. In light of our holding in Yunis II that CIPA “creates no new rights of or limits on discovery” of classified material, but only requires courts to consider secrecy concerns when applying general discovery rules, we find no merit in this claim. Yunis II, 867 F.2d at 621-22; accord United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir.) (“[N]o new substantive law was created by the enactment of CIPA.”), cert. denied, — U.S. -, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989); cf. United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir.1984) (rejecting due process challenge to protection of classified information against discovery).

*1095Yunis also objects to the district court’s refusal to order the government to produce records of conversations between Flight 402 and the Beirut control tower. After ex parte, in camera review of classified materials relevant to Yunis’ various discovery requests, the trial court ordered disclosure of numerous documents, including “[a]ll audio or video tapes and/or transcripts of conversations between defendant and all airport authorities covering the period of the alleged hijacking....” Order, Yunis, Crim. No. 87-0377 (D.D.C. July 18, 1988), reproduced in Appellant’s Appendix at Tab 7. Upon the government’s motion for reconsideration, however, the court narrowed this disclosure order by excluding materials, including tapes and transcripts of conversations with airport authorities, that “do not help the defendant’s cause.” Pretrial Memorandum Order No. 6, Yunis, Crim. No. 87-0377, 1988 WL 16302 (Sept. 27, 1988), reproduced in Appellant’s Appendix at Tab 9. Yunis subsequently renewed his request for conversations between Yunis and the Beirut tower, claiming that these transcripts were “vital to understand what outside influence or ‘orders’ were being transmitted to the hijackers by person(s) not on the plane.” See Defendant’s Reply to Government’s Opposition to Defendant’s Sixth Motion to Compel Discovery at 5 (filed Feb. 22, 1989), reproduced in Appellant’s Appendix at Tab 13. Relying on its earlier rulings, the district court denied the request. Pretrial Memorandum Order No. 16, Yunis, Crim. No. 87-0377 (Feb. 27, 1989), reproduced in Appellant’s Appendix at Tab 15. Yunis now appeals from that denial.

To prevail on a discovery request for classified information, a defendant must make a threshold showing that the requested material is relevant to his case. Yunis II, 867 F.2d at 623. If this “low hurdle” is successfully jumped, the court must determine whether or not the government has asserted a “colorable” claim to privilege. If the government has asserted such a claim, the defendant must show that the information would be helpful to his defense. Id. We never have had occasion to adopt a rule to guide trial courts when all these showings are made, and we do not do so here; other circuits, however, have endorsed a balancing approach. See United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir.1988); United States v. Smith, 780 F.2d 1102, 1110 (4th Cir.1985).

Having ourselves reviewed in camera the government’s classified submissions to the district court, we find very little in them that is both responsive to the discovery request at issue and relevant in any way to Yunis’ trial. We certainly agree with the court below that they reveal no information within the scope of Yunis’ discovery request that would have helped him at trial. Moreover, Yunis II establishes that the government has at least a color-able interest in avoiding release of information that might reveal “the time, place, and nature of the government’s ability to intercept the conversations at all.” Yunis II, 867 F.2d at 623. Under these circumstances, the district court properly declined to order the government to release classified information responsive to Yunis’ discovery request.

D. Jury Instructions

Lastly, Yunis challenges the district court’s instructions to the jury insofar as they relate to intent requirements of the federal hostage taking, hijacking, and conspiracy statutes and to appellant’s affirmative defense of obedience to military orders. In so doing, appellant does not come before an “impregnable citadel[] of technicality.” United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983) (quoting R. Traynor, The Riddle of Harmless Error 14 (1970) (citation omitted)). Trial courts, not the courts of appeals, are the principal bulwarks against injustice in our judicial system, and their resolution of the myriad questions that arise in the course of a criminal trial must be afforded deference. As the Supreme Court has “stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 *1096L.Ed.2d 674 (1986) (citations omitted). In particular, appellate judges ought not substitute their prejudices regarding jury instructions or their notions of apt phraseology for the experience of trial judges in such matters; our more limited responsibility is to ensure that the law is correctly stated for jurors to apply. Where the indispensable prerequisites for a fair trial have been afforded, we will not overturn a conviction just because an awkward word was used in instructing the jury, or even because we would have sustained a defense objection that was overruled. Instead, we look at the entire record of the proceedings below and ignore errors that do not undermine confidence in the conviction when viewed in light of all that took place. See Rose v. Clark, 478 U.S. 570, 576-79, 106 S.Ct. 3101, 3105-07, 92 L.Ed.2d 460 (1986); Hasting, 461 U.S. at 507-09, 103 S.Ct. at 1979-81; Chapman v. California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 826-28, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 762-65, 66 S.Ct. 1239, 1246-48, 90 L.Ed. 1557 (1946). With these precepts in mind, we now turn to appellant’s specific allegations of error in the instructions given by the trial judge.

1. Intent Requirements

Yunis claims that the Antihijacking Act, 49 U.S.C.App. § 1472(n), and the Hostage Taking Act, 18 U.S.C. § 1203, make specific intent an element of the offenses they establish, and that the district court erred in failing to adopt jury instructions offered by the defense that would have made this clear. In appellant’s view, the trial judge’s instruction that Yunis could be convicted on these counts only if he acted “intentionally, deliberately and knowingly” was inadequate. Transcript of Jury Instructions, March 10, 1989, at 17-18, 20 [hereinafter “Instructions"].

49 U.S.C. App. § 1472(n) suggests no specific intent requirement on its face, criminalizing any “unlawful” hijacking of an aircraft. Nor do judicial interpretations of related statutes support appellant’s position. In fact, courts have interpreted a companion provision criminalizing domestic hijacking, 49 U.S.C. App. § 1472(i), as requiring only general criminal intent, even though (unlike section 1472(n)) it specifies that hijackers must act with “wrongful intent.” See United States v. Castaneda-Reyes, 703 F.2d 522, 525 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 174, 78 L.Ed.2d 157 (1983); United States v. Busic, 592 F.2d 13, 21 (2d Cir.1978); United States v. Bohle, 445 F.2d 54, 60 (7th Cir.1971). In light of these decisions, and absent any encouragement from Congress, we decline Yunis’ invitation to graft a specific intent requirement onto the Antihi-jacking Act.

Yunis’ claim that the Hostage Taking Act requires specific intent also fails. The statutory language suggests no intent requirement other than that the offender must act with the purpose of influencing some third person or government through the hostage taking, a point on which the jury received proper instructions. See Instructions at 17 (quoting 18 U.S.C. § 1203(a)). Nor are we aware of any legislative history suggesting that Congress meant to impose a specific intent requirement. Thus, we conclude that the trial judge’s instructions on this count of the indictment accorded with law.

We find no merit in Yunis’ objection (not raised at trial) that the district court failed to instruct the jury that specific intent is a necessary element of the crime of conspiracy. True, “the specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy.” United States v. Haldeman, 559 F.2d 31, 112 (D.C.Cir.1976) (footnote omitted), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). But the jury received instructions that the government “must show beyond a reasonable doubt that the conspiracy was knowingly formed and that the defendant willfully participated in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy.” Instructions at 10. We discern no defect in this instruction.

*1097Yunis further contends that, whatever level of criminal intent was required for these offenses, the district court failed to sufficiently articulate the government’s burden of proving that intent. Because this alternative claim was not raised at trial, Yunis must show “plain error.” Fed. R.Crim.P. 52. The instructions, however, made it abundantly clear that the government had the burden of proving the requisite intent beyond a reasonable doubt. See Instructions at 10 (conspiracy charge), 17-18 (hostage taking), 27 (general instructions on willfulness and burden of proof). There was no error.

2. Obedience to Military Orders

The final issues before us concern jury instructions relating to Yunis’ affirmative defense of obedience to military orders. Yunis and the government agree on the elements of this common law defense, which are established by several civilian court decisions of rather ancient vintage and by military practice. These precedents generally accord with a formulation approved by the Court of Military Appeals in United States v. Calley, 22 C.M.A. 534, 48 C.M.R. 19 (1973):

The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.

Id. at 542, 48 C.M.R. at 27 (opinion of Quinn, J.) (emphasis deleted); see United States v. Clark, 31 F. 710, 716-17 (C.C.E.D.Mich.1987); McCall v. McDowell, 15 F.Cas. 1235, 1240 (C.C.D.Cal.1867) (No. 8,673); Neu v. McCarthy, 309 Mass. 17, 33 N.E.2d 570, 573 (1941); U.S. Dep’t of Defense, Manual FOR Courts-Martial, United States, 1984, R.C.M. 916(d) at 11-128 (“It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”).

Appellant does not disagree with the district court’s jury instructions on the general elements of this affirmative defense. Instead, Yunis claims that the district court erred as a matter of law when it instructed the jury that Yunis could prevail on this defense only if the Amal Militia — to which Yunis belonged and which, he claimed, ordered the hijacking — is a “military organization.” The court further instructed the jury that it could find that the Amal Militia is a military organization only if the group has a hierarchical command structure and “[cjonducts its operations in accordance with the laws and customs of war,” and if its members have a uniform and carry arms openly. Instructions at 34.

Yunis disputes the district court’s position that members of a legitimate military organization must have a uniform. Since the hijackers wore civilian clothes and there was evidence that members of the Amal Militia often dressed this way, appellant concludes that the instruction was prejudicial to his defense. Yunis argues that the relevance of uniforms to the ultimate factual question of whether or not the Amal Militia is a military organization is itself a factual question for the jury, not a question of law. He notes that U.S. courts have not developed any test for determining whether or not defendants who invoke the obedience defense actually belong to bona fide military organizations. But the government responds that courts have not developed such a test simply because the issue has not arisen in U.S. courts; heretofore, the defense has been raised only by members of the United States armed forces. In the government’s view, the district court properly adapted its instructions on the obedience defense when faced with novel factual circumstances.

We agree that the district court did not commit legal error when it looked beyond domestic precedents to give jurors guidance in evaluating the Amal Militia’s military credentials. Moreover, we find that the test of a bona fide military organization adopted by the district court reflects inter-

*1098national practice, providing assurance that Yunis did not suffer from parochial projection of American norms onto the issue of whether he should be treated as a soldier for purposes of the obedience defense.

Specifically, the district court’s uniform instruction finds sufficient support in international agreements that bear on the question. See Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, art. 4(A)(2), 6 U.S.T. 3317, 3320, T.I.A.S. No. 3364 [hereinafter Geneva Convention]; Hague Convention No. IV Respecting the Law and Customs of War on Land, Oct. 18, 1907, annex § I, ch. I, art. 1, 36 Stat. 2277, 2295-96, T.S. No. 539 [hereinafter Hague Convention No. IV]. The Geneva Convention, signed by 167 nations including the United States and Lebanon, establishes “having a fixed and distinctive signal recognizable at a distance” as one of four necessary conditions that qualify the members of a militia for treatment as prisoners of war. See 6 U.S.T. at 3320. The Hague Convention No. IV, to which the United States and forty-two other nations are parties, uses having “a fixed distinctive emblem recognizable at a distance” as a test for whether militiamen and members of volunteer corps have the rights and responsibilities of national armies. See 36 Stat. at 2295-96. At oral argument, counsel for appellant disavowed reliance on the district court’s substitution of “uniform” for “signal” or “emblem,” and we agree that this free interpretation of the treaty language did not prejudice the defense.

Yunis’ second objection to the district court’s “military organization” test relates to the instruction, tracking language found in article 4 of the Geneva Convention and chapter I of the annex to the Hague Convention No. IV, that militias must “conduct [their] operations in accordance with the laws and customs of war” to qualify as military organizations. Instructions at 34. Appellant alleges that this instruction must be considered in tandem with the trial judge’s statement to the jury that the hijacking of Flight 402 violated international law. Together, he says, these instructions directed the jury to conclude that the defense of obedience to military orders was unavailable to Yunis because no organization could have given the instruction to hijack Flight 402 without violating “the laws and customs of war.”

We disagree with appellant’s reading of the record, however, and find that when the district court’s instructions are considered as a whole, it is highly improbable that a reasonable juror would have understood them to direct a verdict on the affirmative defense. See United States v. Lemire, 720 F.2d 1327, 1339 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). In the first place, appellant ignores the trial judge’s charge to the jury that it was responsible for determining, based on the evidence, whether or not the Amal Militia is a military organization. Instructions at 34. So too, the court told jurors that if they found that Yunis was a soldier in a military organization under the definition given them, they would then have to address the issue of whether or not Yunis knew that his orders were illegal. Id. at 35. Both of these instructions contradict appellant’s suggested reading, leading us to conclude that the jury would not have understood the question of whether or not the Amal Militia is a military organization to be foreclosed.

Appellant’s interpretation becomes even more attenuated in light of the government’s closing argument, during which the prosecution told jurors that they would have to determine whether the Amal Militia is “a military organization that basically plays by the rules.” Trial Transcript, March 9, 1989, at 106-07 (emphasis added). See United States v. Park, 421 U.S. 658, 674-75 & n. 16, 95 S.Ct. 1903, 1912 & n. 16, 44 L.Ed.2d 489 (1975) (jury instructions must be viewed in context of trial as a whole). This statement framed the issue correctly, albeit informally, providing additional assurance that any ambiguity arising from the court’s juxtaposition of the illegality instruction and the adherence to international law instruction did not prejudice Yunis’ defense. Because the jury instructions, read as a whole and in light of the *1099evidence and arguments at trial, leave us confident that no prejudicial error occurred, we find that the district court acted within the scope of its discretion.

III. Conclusion

For the foregoing reasons, the convictions are

Affirmed.