                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0480n.06

                                            No. 10-3776

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                         FILED

UNITED STATES OF AMERICA,                                   )                       May 08, 2012
                                                            )                 LEONARD GREEN, Clerk
       Plaintiff-Appellee,                                  )
                                                            )
v.                                                          )   ON APPEAL FROM THE UNITED
                                                            )   STATES DISTRICT COURT FOR
MICHAEL DETCHER,                                            )   THE SOUTHERN DISTRICT OF
                                                            )   OHIO
       Defendant-Appellant.                                 )
                                                            )
                                                            )



       Before: KETHLEDGE and STRANCH, Circuit Judges; GWIN, District Judge.*

       KETHLEDGE, Circuit Judge. Michael Detcher pled guilty to two federal crimes: possession

of child pornography in violation of 18 U.S.C. § 2252(a)(4) and (b)(2); and sexual abuse of a child

within the “special maritime and territorial jurisdiction of the United States” in violation of 18

U.S.C. § 2241(c). He initially appealed both of his convictions, but abandoned his challenge to the

child-pornography offense at oral argument. Detcher argues, however, that the Ohio district court

lacked subject-matter jurisdiction over the sexual-abuse offense because it occurred on a U.S. Army

base in Germany. Detcher raised this argument for the first time on appeal. We remand for the

district court to determine in the first instance whether it has merit.




       *
        The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 10-3776
United States v. Detcher

       A prior panel of this court has held that the question whether a crime is committed within the

“special maritime and territorial jurisdiction of the United States” is a question of subject-matter

jurisdiction. See United States v. Gabrion, 517 F.3d 839, 845 n.5 (6th Cir. 2008). Thus, the fact that

Detcher did not make his jurisdictional argument below does not release us from our duty to

determine the issue. See United States v. Cotton, 535 U.S. 625, 630 (2002).

       Section 2241(c) criminalizes certain egregious forms of child sexual abuse committed “in

the special maritime and territorial jurisdiction of the United States.” That phrase is defined in 18

U.S.C. § 7(3) as including “lands reserved or acquired for the use of the United States, and under the

exclusive or concurrent jurisdiction thereof.” Detcher claims that the base where he committed his

crimes is not within the statute’s reach, for two reasons.

       First, he argues, the statute does not apply extraterritorially; it only reaches lands that the

federal government owns within the territorial United States. There is a circuit split on this issue.

Compare United States v. Gatlin, 216 F.3d 207, 210–23 (2d Cir. 2000) (agreeing) with United States

v. Erdos, 474 F.2d 157, 159–60 (4th Cir. 1973) (disagreeing) and United States v. Corey, 232 F.3d

1166, 1170–76 (9th Cir. 2000) (same).

       Second, Detcher argues that, even if the statute reaches some areas outside of United States

territory, the German base is not among them. Detcher contends that the crime he committed on the

German base is not within the United States’s “exclusive or concurrent jurisdiction” because

Germany has not ceded any jurisdiction to the United States civilian courts to try crimes committed

there. Detcher’s contention rests on the Status of Forces Agreement between our country and



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No. 10-3776
United States v. Detcher

Germany. The Agreement, he says, permits his trial—if at all—only in military court. See United

States v. Morton, 314 F.Supp.2d 509, 513–15 (D. Md. 2004).

       In Gabrion, upon noticing that the district court might have lacked jurisdiction to try the

criminal defendant, we first remanded to the district court for an initial determination whether the

defendant committed his crime within the “special maritime and territorial jurisdiction of the United

States.” See Gabrion, 517 F.3d at 844. We likewise do so here. The district court is far better

equipped than we are to develop a record regarding the facts relevant to interpretation of the Status

of Forces Agreement.

       We therefore vacate the district court’s judgment as to Count I and remand to the district

court for it to consider Detcher’s jurisdictional challenge. We affirm the district court’s judgment

as to Count II.




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