In Search of Monsters Abroad: Serving Summonses on Foreign Organizations Under Rule 4 and Fifth Amendment Due Process

Recently, federal prosecutors\u27 increased interest in criminally charging foreign organizational defendants has revealed a jurisdictional gap in Rule 4 of the Federal Rules of Criminal Procedure. Rule 4, which has operated largely unchanged since its adoption in 1944, requires that a copy of a compulsory summons be served on an organizational defendant by mailing it either to the defendant\u27s last known address in the relevant district or to its principal place of business elsewhere in the United States. The courts have divided over how to confront jurisdictional challenges brought by certain foreign corporations—those without domestic principal places of business and addresses—that appear to be legally incapable of receiving service. As it stands, the jurisdictional gap threatens to effectively immunize large swaths of illegality over which the United States would otherwise have jurisdiction. The Department of Justice and the Advisory Committee on Rules of Criminal Procedure have responded to this concern with dueling proposals to close Rule 4\u27s jurisdictional gap. This Note agrees that the jurisdictional gap should be closed, but in a narrowly fashioned manner. Relaxing the service regime for foreign organizational defendants too much may enable, for the first time, prosecutions of wholly extraterritorial conduct that would violate the Fifth Amendment\u27s Due Process Clause. This Note sketches the contours of such a case, and concludes that any risk is best cabined by reasonably limited means of service under Rule 4 coupled with the responsible exercise of prosecutorial discretion