United States District Court, Northern District of Illinois, E.D
September 28, 1982
UNITED STATES OF AMERICA EX REL. JAMES PASCARELLA, PETITIONER,
NICHOLAS RADAKOVICH, CHIEF PROBATION OFFICER, WILL COUNTY, ILLINOIS, AND TYRONE FAHNER, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, RESPONDENTS.
The opinion of the court was delivered by: Bua, District Judge.
Petitioner, James Pascarella, was convicted in the Circuit Court of
Will County, Illinois of conspiracy to commit theft in violation of
Ill.Rev.Stat. Ch. 38, §§ 8-2(a) and 16-1 (1977). He was sentenced to
two years probation, with the first 90 days to be served under a work
release program. The Illinois Appellate Court for the Third District
affirmed the conviction and leave to appeal to the Illinois Supreme Court
was denied. Pascarella filed a petition for writ of habeas corpus and a
motion for summary judgment with this court, claiming various errors
occurred in the state court proceedings.*fn1 Respondents have filed a
motion to dismiss.
As a preliminary matter, this court notes that Pasearella "accepts the
facts as stated in the opinion of the Illinois Appellate Court, affirming
his conviction."*fn2 Petitioner's Motion For Summary Judgment, p. 2.
These facts reveal that the petitioner entered into agreements in
Illinois with William Cowles, a police-informant, and Marty Nowak, a
police officer, to violate Illinois law prohibiting the theft of motor
vehicles. The facts also reveal that after these agreements were made,
petitioner moved to Colorado from where he telephoned persons in Illinois
regarding these agreements. The telephone conversations concerned the
intended delivery of stolen cars in Will County, Illinois by John
Conley, petitioner's coconspirator. Ultimately, stolen cars were
delivered to undercover police officers in Will County, Illinois and
petitioner's "commission" on each stolen vehicle delivered in Will
County, Illinois was sent to him in Colorado.
From his conviction on these agreed facts, petitioner raises two
claims. First, petitioner asserts that since he was in Colorado when the
conspiracy occurred, the Illinois courts did not possess the jurisdiction
and venue required by Art. III, Cl. 1 and Cl. 3, Article VI, Cl. 2 and
the Sixth and Fourteenth Amendments to the United States Constitution.
Simply stated, petitioner contends that the federal constitution
prohibits a state from asserting jurisdiction over an individual for
violation of a state law criminalizing conspiracy to steal motor vehicles
when that individual is absent from the state during the commission of
Petitioner's claim must be rejected. It has long been established that
a state may constitutionally attach criminal consequences to an act
occurring outside the state that has an effect within the state. In
Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911), the
Supreme Court addressed the issue of whether a criminal defendant could
be punished by the state of Michigan for fraud although the defendant
personally committed no acts within the state until after the crime was
complete. Justice Holmes answered the question in the context of an
extradition issue also raised in the case.
"[T]he usage of the civilized world would warrant
Michigan in punishing him, although he never had set
foot in the state until after the fraud was complete.
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.
Id. at 284-85, 31 S.Ct. at 560. See also United States v.
Columba-Colella, 604 F.2d 356, 358 (5th Cir. 1979).
The "usage of the civilized world" to which Justice Holmes referred in
Strassheim is the basic concept of territorial jurisdiction possessed by
every sovereign state. Courts and commentators have recognized that a
sovereign state, under the territorial theory of jurisdiction, may attach
criminal penalties to an act occurring within its borders or an
extra-territorial act that has an effect within the state. E.g., United
States v. Columba-Colella, 604 F.2d at 358; see generally George,
Extraterritorial Application of Penal Legislation, 64 Mich.L.Rev. 609
Extra-territorial jurisdiction may be invoked by states in a variety of
situations. The classic example is the case where a shot is fired at a
person across the state line, killing a person in the adjoining state. In
such a situation, the presence of the offender in the state where the
death occurs is not necessary to subject the offender to criminal
penalties in that state. See 21 Am.Jur.2d Criminal Law §§ 343-48 (1981)
(collecting cases). Likewise, if a wound is inflicted in one state but
the victim later dies in another state, the courts of the state where the
death occurs may try the offender for murder or manslaughter. E.g., State
v. Justus, 65 N.M. 195, 334 P.2d 1104 (1959). Similarly, crimes like
fraud, embezzlement and conspiracy are often punishable under state law
even if the offender is never physically present within the state. See
Model Penal Cede § 1.02(1)(a); See also, George, Extraterritorial
Application of Penal Legislation, supra. The federal courts, too, have
often applied the theory of territorial jurisdiction to criminalize acts
outside the United States, For example, persons who conspire to violate
federal drug laws may be tried by federal courts even though such persons
act wholly outside the territorial boundaries of the United States. In
numerous cases, federal courts have found that they could properly try a
drug conspirator who was never physically present in the United States,
as long as the conspiracy was carried out partly within this country.
E.g., United States v. Lawson, 507 F.2d 433 (7th Cir. 1974), cert.
denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975).
This court similarly finds that the Illinois criminal jurisdiction
statute,*fn4 under which the Illinois courts asserted jurisdiction over
the offense*fn5 in this case, does not violate defendant's federal
In addition to his constitutional claims, the petitioner also contends
that he is innocent of the conspiracy charges against him because the
state's evidence consisted of proof of agreements between petitioner and
police-informant Cowles and Police Officer Nowak. Petitioner contends that
agreements between a citizen and police officer or police-informant do
not constitute a conspiracy.
Whether conversations between a citizen and a police-informant and
police officer constitute a conspiracy is a matter of state law and raises
no constitutional or federal issue properly reviewable here.*fn6 In a
federal habeas corpus proceeding, state law claims can be examined only
insofar as state law deprives a person of a federal right. E.g., Wills
v. Egeler, 532 F.2d 1058 (6th Cir. 1976). Moreover, it appears that
petitioner's claim is an attempt to establish that any conspiratorial acts
he committed occurred outside the territorial boundaries of Illinois,
thus bolstering his claim that Illinois courts could not properly try him
for conspiracy. As previously noted, Illinois' assertion of jurisdiction
over petitioner's crime was entirely proper.
The writ of habeas corpus is therefore dismissed and petitioner's
motion for summary judgment is denied.
IT IS SO ORDERED.