By admin
CRIMINAL LAW
Where Korean citizen was prosecuted for bribery in Korean court and later in U.S. federal court based on same facts, Fifth Circuit affirms U.S. conviction [1] because Convention on Combating Bribery of Foreign Public Officials in effect in both nations does not bar multiple prosecutions for same conduct and [2] because U.S. did not waive jurisdiction nor [3] has it adopted doctrine of international double jeopardy
Beginning in 2001, Gi‑Hwan Jeong, a citizen of South Korea, was successfully bribing two U.S. officials to obtain a $206 million contract relating to the U.S. Army and Air Force Exchange Service (AAFES) for his company, Samsung Rental Company, Ltd. (SRT). Under the contract, SRT would provide internet and other telecommunication services to U.S. military installations in South Korea.
Jeong came under investigation by U.S. and South Korean investigators. AAFES terminated the contract with SRT in 2007, and in 2008 a South Korean court convicted Jeong of bribing U.S. officials. The court sentenced him to time served (58 days) as well as to pay a fine of about $10,000.
That, however, was far from ending the U.S. investigation. The U.S. requested assistance pursuant to the Treaty Between the United States of America and the Republic of Korea on Mutual Legal Assistance in Criminal Matters, U.S.‑South Korea, November 23, 1993, S. Treaty Doc. No. 104‑1 (1995) [in force May 23, 1997]. The request acknowledged Jeong’s conviction and stated that the U.S. was not seeking to prosecute.
AAFES then invited Jeong to a meeting in Dallas, Texas, for a discussion. Jeong did in fact travel to the U.S. where the U.S. arrested him upon arrival. A Grand Jury then indicted Jeong for federal bribery under 18 U.S.C. 201(b)(1), conspiracy under 18 U.S.C. 371, and wire fraud under 18 U.S.C. 1343 and 1346.
Jeong moved to dismiss the indictment claiming that the U.S. lacked jurisdiction to prosecute him. In particular, he argued [1] that the federal bribery statute does not apply extraterritorially; [2] that the prosecution violates the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (December 17, 1997, S. Treaty Doc. No. 105‑433 (1998)) [in force February 15, 1999] (Convention) of the Organization for Economic Cooperation and Development (OECD); and [3] that Article 4.3 of the Convention bars multiple prosecutions for the same offense. Both the U.S. and South Korea are signatories to the Convention.
The Korean Ministry of Justice submitted a statement to the district court supporting Jeong’s motion to dismiss. It contended that the U.S. had not timely asserted jurisdiction to prosecute Jeong, as confirmed in the U.S. request under the Mutual Assistance Treaty; thus, the U.S. had effectively waived that right. The district court denied the motion [1] because federal bribery laws do in fact apply extraterritorially and [2] because the Convention does not bar multiple prosecutions. Jeong pleaded guilty but exercised his right to appeal the denial of his motion to dismiss. The U.S. Court of Appeals for the Fifth Circuit, however, affirms Jeong’s American conviction.
According to Jeong, the Convention bars a signatory party from prosecuting a foreign national whose alleged offenses had occurred abroad. Article 4.3 of the Convention provides that, when more than one jurisdiction can prosecute, the governments involved should—at the request of one of them—consult to determine the most appropriate jurisdiction for prosecution.
The Court of Appeals, however, disagrees. “We apply the traditional canons of interpretation to Article 4.3. ‘The interpretation of a treaty, like the interpretation of a statute, begins with its text.’… We must interpret the text ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ … Only if the language of a treaty, when read in the context of its structure and purpose, is ambiguous may we ‘resort to extraneous information like [1] the history of the treaty, [2] the content of negotiations concerning the treaty, and [3] the practical construction adopted by the contracting parties.’ … Finally, [4] we may not ‘alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial,’ for to do so ‘would be … an usurpation of power, and not an exercise of judicial function.’ …”
“Applying these canons, we conclude that the plain language of Article 4.3 does not prohibit two signatory countries from prosecuting the same offense. Rather, the provision merely establishes when two signatories must consult on jurisdiction. Article 4.3 states that two signatories with concurrent jurisdiction over a relevant offense must, ‘at the request of one of them,’ consult on jurisdiction.”
“The phrase ‘at the request of one of them’ is a dependent clause that conditions the consultation requirement upon the existence of a request. Where no such request is made, then, the ordinary reading of Article 4.3 is that consultation is not required. Jeong is, therefore, incorrect that the provision requires consultation in every instance of concurrent jurisdiction. In the case at hand, the record shows that neither the U.S. nor South Korea requested consultation on their concurrent jurisdiction to prosecute Jeong. That they did not consult on jurisdiction, therefore, does not violate Article 4.3.”
“Even if the U.S. and South Korea had been required to consult on jurisdiction, however, it would not follow that only one of the two nations could prosecute Jeong. Article 4.3 requires that consultation be made ‘with a view to determining the most appropriate jurisdiction for prosecution.’ Jeong argues that because the provision uses the singular, not plural, form of ‘jurisdiction,’ prosecution of an offense may be had in only one jurisdiction.”
“But this reading impermissibly engrafts additional requirements on the clause, and we may not ‘alter, amend, or add to’ the plain language of a treaty. … The plain language of the clause provides that where consultation is required, the parties need only consult ‘with a view to determin[e]’_the jurisdictional question ‑‑ they need not actually answer it. And, most significantly, the provision requires nothing more than consultation upon request; it does not require any additional actions of the party countries.” [711‑712].
Alternatively, Jeong argues that the U.S. expressly and impliedly waived jurisdiction, and, therefore. the indictment is invalid. Again, the Court disagrees. “Implicit in Jeong’s argument is a presumption that although the U.S. and South Korea both had the right to prosecute him for his offenses, only one of the two countries was permitted to exercise that right. Operating under this [alleged] presumption, Jeong argues that the U.S. impliedly and expressly ceded its right of prosecution to South Korea.”
“In an omission fatal to his argument, however, Jeong fails to identify any source of domestic or international law that permits such a presumption. At the outset, we note that it is doubtful whether Jeong has recourse in domestic law. For instance, we have held that the Double Jeopardy Clause of the Fifth Amendment ‘only bars successive prosecutions by the same sovereign.’ U.S. v. Villanueva, 408 F.3d 193, 201 (5th Cir.2005); see also U.S. v. Martin, 574 F.2d 1359, 1360 (5th Cir.1978) (‘The Constitution of the U.S. has not adopted the doctrine of international double jeopardy.’) … Double jeopardy thus does not attach when separate sovereigns prosecute the same offense, as here.”
“In addition, Jeong has not pointed us to any applicable international law that limits the U. S’s jurisdiction over the offenses in this case ‑‑ nor have we found any in our own research. There are three accepted sources of international law in the U.S.: [1] customary international law, [2] international agreement, and ]3] ‘general principles common to the major legal systems of the world.’ Restatement (Third) of Foreign Relations Law of the United States § 102(1) (1987) (hereinafter Restatement). … The ‘exercise of jurisdiction by courts of one state that affects interests of other states is now generally considered as coming within the domain of customary international law and international agreement.’ Restatement ch. 2, intro. note.”
“Jeong, however, has not cited any relevant international agreement or custom applicable here. Because Jeong has not identified ‑‑ nor does the record show ‑‑ a legal agreement between the U.S. and South Korea that would permit a conclusion of jurisdictional waiver in this case, we simply lack a basis in which to evaluate Jeong’s waiver claims. …We must therefore conclude that Jeong’s waiver claim fails.” [712‑713].
Citation: United States v. Jeong, 624 F.3d 706 (5th Cir. 2010).
Filed in: 2010 International Law Update, Issue 10
By admin
CRIMINAL LAW
In case of racketeering enterprise with activities in both U.S. and Mexico, Seventh Circuit rules that 18 U.S.C. § 1959 that deals with violent crimes in aid of racketeering activity applies extraterritorially to murder that occurred in Mexico
Julio Lejia‑Sanchez (Defendant) was the purported leader of a criminal organization in Mexico that produced fraudulent driver’s licenses, social security cards, permanent residence cards, and other government‑issued documents. According to the indictment, Defendant’s organization smuggled many of its employees and customers into the U.S. from Mexico.
At issue in this case is Defendant’s motion to dismiss Count III of the indictment; it charged that Defendant had violated 18 U.S.C. 1959 dealing with violent crimes in aid of racketeering activity by arranging for the murder in Mexico of one of his former employees named Guillermo Jimenez Flores. The district court dismissed Count III, ruling that § 1959 does not apply extraterritorially. The United States duly appealed and the Seventh Circuit reverses.
The United States argued that criminal statutes apply to criminal actions even if some part is conducted abroad, relying on United States v. Bowman, 260 U.S. 94 (1922). The district court, however, had apparently relied on EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) and other decisions that established a presumption that civil statutes do not apply to activity outside the United States.
In the Court’s view: “Civil decisions such as Aramco cannot implicitly overrule a decision holding that criminal statutes are applied differently. The main reason for requiring a clear legislative decision before applying a civil statute to activity outside our borders is that nations often differ with respect to [what constitutes] acceptable [non‑criminal] conduct. See Aramco, supra at 248. Title VII of the Civil Rights Act of 1964, the statute at issue in Aramco, forbids religious discrimination, but other nations may impose religious tests. [...]”
“Nations differ in the way they treat the role of religion in employment; they do not differ to the same extent in the way they treat murder. They may use different approaches to defenses, burdens of proof and persuasion, the role of premeditation, and punishment, but none of these is at stake here. It is not as if murder were forbidden by U.S. law but required (or even tolerated) by Mexican law. The crime in Bowman was fraud; the Court observed that fraud was unlawful in all of the places where Bowman’s scheme was implemented.”
“Whether or not Aramco and other post‑1922 decisions are in tension with Bowman, we must apply Bowman until the Justices themselves overrule it. [‘If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 ... (1989).] … The Supreme Court has neither overruled Bowman nor suggested that the courts of appeals are free to reconsider its conclusion.” [798‑799]
“The Court also clarifies that Bowman does not require statutes to always apply extraterritorially. Instead, courts must consider whether the language and function of the statute so require. See Restatement (Third) of Foreign Relations Law, Section 402(1) (U.S. may apply its law to conduct that either takes place ‘in substantial part’ within the U.S. or has a ‘substantial effect’ in the U.S.”
“Any international repercussions of the decision to prosecute [Defendant] are for the political branches to resolve with their counterparts in Mexico, rather than matters for the judicial branch. That diplomacy has occurred already. [Defendant] fled to Mexico, which extradited him to the United States to face all of the indictment’s charges. The United States promised not to seek or impose the death penalty for the murder; Mexico was satisfied with that undertaking and saw no reason why the United States should not apply its substantive rules.”
“Given the holding of United States v. Alvarez‑Machain, 504 U.S. 655 ¼ (1992), that prosecution in the United States is permissible even if the defendant arrives [here] by kidnapping rather than formal extradition, this prosecution is easy to support. The substantive offense in Alvarez‑Machain was the murder in Mexico, by a Mexican national, of two persons who were helping to enforce U.S. drug laws; the statute said to be violated in Alvarez‑Machain was § 1959, because the murders helped an international drug ring continue in business.”
“The Supreme Court was not asked to hold in Alvarez‑Machain that applying § 1959 in this fashion would have been impermissibly extraterritorial, so its decision is not direct authority. But we conclude that what the parties assumed in Alvarez‑Machain that § 1959 applies to a murder in another nation designed to facilitate the operation of a criminal enterprise in the United States is indeed the law.” [602 F.3d 801‑802].
Citation: United States v. Leija‑Sanchez, 602 F.3d 797 (7th Cir. 2010).
Filed in: 2010 International Law Update, Issue 4
By admin
CRIMINAL LAW
In matter of first impression, Eleventh Circuit finds that 18 U.S.C. § 2251A [selling or buying children for sexual purposes] applies extraterritorially to conduct by U.S. person that occurred in Cambodia
In 2004, Cambodian police detained one Kent Frank, a U.S. citizen (Defendant) in Cambodia after Officer Keo of the Cambodian National Police (CNP) saw several apparently underage girls leaving Defendant’s hotel room. He interviewed them. Defendant later confessed to CNP officers that he paid the underage girls money for sex acts and for letting him take sexually explicit photographs. Cambodian officers eventually released Defendant who fled to Vietnam. U.S. officials traced him to Vietnam and arrested him there.
A Florida federal court convicted Defendant of various offenses arising out of his sexual acts with the minors. He appealed his conviction claiming, inter alia, that the trial court should have suppressed his Cambodian confession and that 18 U.S.C. § 2251A has no application outside U.S. territory. The U.S. Court of Appeals for the Eleventh Circuit, however, affirms.
Defendant first argued that the lower court should have suppressed his confession in Cambodia because he had not received any Miranda warnings. The district court found that Miranda warnings were not required in this case and that Defendant’s confession was voluntary.
The Court of Appeals agrees. “Generally, ‘statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.’ … The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. .. That is, our ‘Constitution cannot compel such specific, affirmative action by foreign sovereigns.’ … Two exceptions to this general rule are: (1) if the foreign officers’ conduct ‘shocks the conscience of the American court’ and (2) if ‘American officials participated in the foreign . . . interrogation, or if the foreign authorities were acting as agents for their American counterparts,’ also known as the “joint venture” doctrine. See U.S. v. Heller, 625 F.2d 594, 599 (5th Cir. 1980)] …”
“… Defendant’s statements do not fall under the joint venture doctrine. American officials did not know of Defendant’s presence in Cambodia until after he was arrested and did not participate in Defendant’s detention or interrogation. When Agent Phillips attempted to interrogate Defendant, after giving him Miranda warnings, he was cut short when Cambodian officers came in to bring Defendant before a judge. At all times, the Cambodian officers acted out of their own interest in determining whether Defendant violated Cambodian laws. The officers then released Defendant and allowed him to travel to Vietnam without notifying the United States. Consequently, there is no evidence that the Cambodian officers acted as agents of the United States. …”
“Second, Defendant’s interrogation does not shock the judicial conscience. Defendant was not held in a jail but allowed to sleep overnight in Officer Keo’s office. The interview lasted less than two hours. Defendant was treated with respect, offered food and water, and was not beaten or threatened in any way. Based on these facts, we also find that Defendant’s confession was voluntary. … As such, the district court did not err in denying Defendant’s motion to suppress his statements resulting from interrogation by Cambodian officials.” [Slip op. 7‑9]
Defendant next argues that 18 U.S.C. § 2251A should not apply to conduct in Cambodia. In particular, §§ 2251A(b)(2)(A) and (C)(1) provide that “[w]hoever purchases … a minor … with intent to promote … the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and “in the course of the conduct described … the minor or the actor traveled in or was transported in or affecting interstate or foreign commerce” may be imprisoned for 30 years or for life.”
Congress does have the power to apply its laws extraterritorially. The Court then reviews whether Congress so intended in this case. “We presume that statutes only apply domestically, and give extraterritorial effect ‘where congressional intent is clear.’ … However, in United States v. Bowman, 260 U.S. 94, 97‑98 … (1922), the Supreme Court held that extraterritorial application can be inferred in certain cases even absent an express intention on the face of the statute.”
“We have interpreted Bowman to hold that extraterritorial application ‘may be inferred from the nature of the offense[] and Congress’ other legislative efforts to eliminate the type of crime involved.’ … Crimes fall under the Bowman exception when limiting ‘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 . . . in foreign countries as at home.’ … Thus, we have upheld extraterritorial application of statutes ‘where the nature of the activities warranted a broad sweep of power.’ …”
“We must determine whether Congress intended § 2251A to apply to United States citizens engaged in conduct wholly outside of the United States. To date, no circuit court has decided this issue. … After considering the language of the statute, the nature of the offense covered by 18 U.S.C. § 2251A, and Congress’s other efforts to combat child pornography, we find that 18 U.S.C. § 2251A applies extraterritorially to reach Defendant’s conduct.”
“[...] Section 2251A requires that, in the course of the prohibited conduct, the defendant or minor ‘travel[] in . . . interstate or foreign commerce,’ making plain Congress’s intent that the statute sweep broadly and apply extraterritorially. 18 U.S.C. § 2251A(c)(1) … For example, 18 U.S.C. § 2423(c), which punishes anyone ‘who travels in foreign commerce, and engages in any illicit sexual conduct,’ has been applied extraterritorially. United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006) (holding that the title of the statute, ‘Engaging in illicit sexual conduct in foreign places,’ and the requirement that the defendant ‘travel[] in foreign commerce,’ evinced Congressional intent to apply the statute extraterritorially) …”
“Furthermore, extraterritorial application is supported by the nature of § 2251A and Congress’s other efforts to combat child pornography. Section 2251A is part of a comprehensive scheme created by Congress to eradicate the sexual exploitation of children and eliminate child pornography, and therefore warrants a broad sweep. … Since 1977, Congress has passed numerous statutes to combat child pornography and the sexual exploitation of children. … As part of this effort, § 2251A was included in the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100‑690, Title VII, Subtitle N, § 7512, 102 Stat. 4181 (1988) (‘1988 Act’). …. The statute falls under Chapter 110 of Title 18 of the United States Code, which punishes offenses dealing with the sexual exploitation and other abuse of children. [...]”
“Congress has also amended its laws to allow for extraterritorial application when it has discovered loopholes in its statutory scheme. … For instance, Congress amended 18 U.S.C. § 2423 in 2003 to eliminate the requirement that the government had to prove the intent to engage in sexual activity, and instead allowed prosecution where the defendant traveled in foreign commerce and actually engaged in illicit sexual activity with a minor. See PROTECT Act, § 105, 117 Stat. at 654, codified as amended at 18 U.S.C. § 2423 (c); H.R. Rep. No. 107‑525 (2003) (Congress noted that this ‘legislation [would] close significant loopholes in the law that persons who travel to foreign countries seeking sex with children are currently using to their advantage in order to avoid prosecution’). Additionally, Congress enacted 18 U.S.C. § 2251(c) to clarify that acts covered under 18 U.S.C. § 2251(a) applied extraterritorially. See H.R. Rep. No. 108‑66, at 62‑63 (2003) (Conf. Rep.) (implying that the enactment of § 2251(c) was partly in response to Thomas).”
“The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially.” [Slip op. 10‑16]
Finally, the exercise of jurisdiction over Defendant comports with international law. Defendant is a U.S. citizen, thus there was jurisdiction based on the “nationality principle” which permits a country to exercise wide‑reaching criminal jurisdiction over one of its nationals.
Citation: United States v. Frank, 599 F.3d 1221 (11th Cir. 2010).
Filed in: 2010 International Law Update, Issue 3
By admin
CRIMINAL LAW
Fourth Circuit affirms criminal conviction of U.S. civilian CIA contractor for causing death of Afghan detainee at U.S. base in Afghanistan by repeated kicks and beatings, based on recent statutory extensions of special maritime and territorial jurisdiction federal courts
David Passaro (Defendant) was a civilian Central Intelligence Agency (CIA) contractor in Afghanistan when he allegedly assaulted and killed Abdul Wali in 2003 at Asadabad Firebase, Afghanistan. U.S. and coalition forces had captured the Asadabad Firebase in late 2001 by. Defendant, a former special forces medic, arrived in 2003, when the base was the target of rocket attacks. U.S. forces suspected that Afghan national Abdul Wali had organized those rocket attacks.
Wali surrendered voluntarily and Defendant proceeded to interrogate him for two days. Defendant’s “techniques” of persuasion included throwing Wali to the ground; striking him; hitting him with a large flashlight; and kicking him in the groin. At the end of the second day of mistreatment, Wali collapsed and died.
A North Carolina federal jury found Defendant guilty of the fatal assaults. Defendant argues on appeal, inter alia, that the U.S. courts lacked criminal jurisdiction over alleged assaults at U.S. Army outposts in Afghanistan. The U.S. Court of Appeals for the Fourth Circuit, however, affirms.
In this case, the Government based criminal jurisdiction on the special maritime and territorial jurisdiction statute 18 U.S.C. § 7 (2006). It extends federal criminal jurisdiction over certain crimes that states have been traditionally regulating. Territorially, it extends to federal enclaves such as military bases, federal buildings, national parks, the high seas within U.S. admiralty and maritime jurisdiction, as well as to offenses committed on aircraft and spacecraft.
In 2001, Congress added another subsection to § 7 through the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107‑56, § 804, codified at 18 U.S.C. § 7(9) (2006). It extends special maritime and territorial jurisdiction to “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership …”
The question here is whether this Section enlarges a federal court’s jurisdiction to crimes allegedly committed at the Asadabad Firebase in 2003. In order to determine the Section’s meaning and congressional intent, the district court focused on the statutory terms “premises” and “mission.” The district court then found jurisdiction over the alleged crime committed in Asadabad in 2003. It reasoned that the U.S. has been conducting a military mission in Afghanistan since late 2001, and the activities at the Asadabad Firebase form part of that larger longstanding mission.
The Court of Appeals, however, considers this construction inadequate. Instead, it construes § 7(9) to apply only to fixed locations by stressing the importance of the terms “mission” and “premises.” The fact that Congress placed subsection 9 within § 7 which only refers to more or less fixed locations supports this interpretation. Congress included “military mission” in a particular list of missions such as diplomatic, consular, and military missions, thus indicating that it refers to permanent locations.
The Court then explains. “We turn then to the question of whether, by June 2003, the ‘premises’ of Asadabad constituted a United States ‘military mission’ so as to render it within the criminal jurisdiction of a federal district court.”
“Clearly, long‑established and permanent U.S. military bases abroad, e.g., [the] Naval Air Facility Atsugi in Japan and [the] Ramstein Air Base in Germany, constitute ‘premises’ of a ‘military mission’ under § 7(9). These bases are the straightforward ‘military’ analogue to embassies, [as well as to] the ‘diplomatic’ and ‘consular’ missions plainly within § 7(9)’s scope.”
“On the other hand, we doubt that § 7(9) reaches so broadly as to encompass any area that U.S. soldiers occupy, no matter how temporary or mobile their presence. For example, we agree with [Defendant] that § 7(9) would not reach any piece of Afghan soil on which a soldier ‘pitches his pup tent.’ …”
“In cases that fall between these two extremes, courts must consider a number of common‑sense, objective factors to determine whether a particular location qualifies as the ‘premises’ of a United States ‘military mission’ for purposes of § 7(9). Relevant factors include [1] the size of a given military mission’s premises, [2] the length of United States control over those premises, [3] the substantiality of its improvements, [4] actual use of the premises, [5] the occupation of the premises by a significant number of United States personnel, and [6] the host nation’s consent (whether formal or informal) to the presence of the United States. This list surely does not exhaust every factor relevant to determining § 7(9)’s reach; nor is any [single] factor a prerequisite for jurisdiction. But these factors do bring to bear relevant, objective considerations in resolving this question.” [Slip Op. 9‑10]
The Court then applies these elements to the case at bar. Asadabad in fact does possess all the qualities of a substantially permanent U.S. base abroad, and thus falls within the ambit of § 7(9). First, as to size, Asadabad is a substantial facility, covering about 25 acres with a 10‑foot mud wall around it. Second, by the time Defendant arrived, U.S. forces had controlled Asadabad for 18 months, thus suggesting a likelihood of permanent control. Third, as to permanence and substance, U.S. forces improved and fortified Asadabad by adding buildings, power generators, and plumbing. Fourth, as further proof of permanence, the U.S. used Asadabad to conduct military operations just as they would other facilities in Afghanistan and around the world.
Citation: United States v. Passaro, 577 F.3d 207 (4th Cir. 2009).
Filed in: 2009 International Law Update, Issue 8
By admin
In case where district court admitted evidence allegedly in violation of the Mutual Legal Assistance Treaty (MLAT) between the U.S. and The Netherlands, obtained after The Netherlands denied U.S. request for assistance, Second Circuit finds that evidence was not within scope of MLAT and must only comply with U.S. law, not foreign law
Henk Rommy, a Dutch citizen who ran a large international drug ring, was convicted of importing the drug “ecstasy” (MDMA) into the U.S. The conviction was in part based on the testimony of his co conspirators and recorded conversations with an informant and an undercover agent.
In early 2000, Dutch Authorities notified the Drug Enforcement Agency (“DEA”) about plans to smuggle large amounts of ectasy pills to New York. Based on the Mutual Legal Assistance Treaty (“MLAT”) between the two countries (Treaty on Mutual Assistance in Criminal Matters, June 12, 1981, U.S. Netherlands, 35 U.S.T. 1361, T.I.A.S. No. 10,734). The DEA interviewed the Dutch Authorities’ confidential informant and then, based on the MLAT, wanted to use him to introduce Rommy to an undercover agent, Mark Grey, and record the resulting conversations. Dutch Authorities denied the request.
The DEA nevertheless went ahead and used the confidential informant to put agent Grey in touch with Rommy. Between October 2001 and March 2003, DEA agents in New York recorded telephone conversations between the informant, Agent Grey and Rommy in The Netherlands about smuggling ectasy into New York. In March 2003, Rommy met with the informant and Agent Grey in Bermuda. There, Rommy spoke openly about his experience in drug trafficking, and explained the origin of the ectasy pills. U.S. authorities video taped the meeting and subsequently requested Spanish authorities to arrest and extradite Rommy. He was convicted in U.S. district court for the Southern District of New York.
Rommy appeals his conviction, claiming, inter alia, that the district court erred in admitting evidence obtained in violation of the MLAT between the U.S. and The Netherlands. In particular, Rommy challenges the district court’s failure to suppress the recorded telephone conversations and the video taped Bermuda meeting as violations of the MLAT.
The U.S. Court of Appeals for the Second Circuit affirms the conviction.
The Court disagrees with Rommy. “First, Rommy cannot demonstrate a treaty violation. The [MLAT] … provides various means for the governments of the two countries to provide legal assistance to one another in criminal matters, … It also places certain limitations on how information obtained pursuant thereto may be used. … By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:”
“‘Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.’”
“… This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others’ countries. To the contrary, it means that, when securing evidence without MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable ‘domestic laws.’ …”
“Thus, when DEA agents proceeded to use [the] confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. … The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that “federal law governs the admissibility of evidence in a federal criminal trial”) … Rommy makes no claim on appeal that the DEA’s undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.” [Slip op. 24 35]
Further, the MLAT does not appear to create individual rights. There is a general presumption against individual enforcement rights. Absent treaty language conferring individual enforcement rights, treaty violations are handled by diplomatic means. Sometimes sovereign nations decide to overlook such treaty violations.
In this case, it is clear that the MLAT signatories did not intend to create individual rights. Article 18, subsection 2, specifically states that “the provisions of this Treaty shall not give rise to a right on the part of any person to take any action in a criminal proceeding to suppress or exclude any evidence.”
Rommy then points to MLAT Article 2, subsection 2, which states that “[t]he Requesting State shall not use any evidence obtained under this Treaty … without the prior consent of the Requested State.”
Here, The Netherlands denied the U.S. request under the MLAT. Therefore, the evidence is not subject to the MLAT Article 11. The admissibility of this evidence is governed solely by U.S. domestic law.
Consequently, Rommy’s argument for suppression of the evidence lacks any foundation in the text of the MLAT, and district court properly denied it.
Citation: United States v. Rommy, No. 06 0520 cr (2d Cir. November 5, 2007).
Filed in: 2007 International Law Update, Issue10
By admin
Ninth Circuit rules that Protect Act does not apply to criminal sexual acts of U.S. pedophile who committed them in Cambodia because his foreign travel had ended before enactment of the Act
A federal grand jury indicted Gary Jackson (Defendant) for violating 18 U.S.C. Section 2423, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act [PROTECT Act], which prohibits U.S. citizens and permanent residents from traveling in foreign commerce to engage in illicit sexual conduct. Defendant and his domestic partner, James Kleven, relocated to Cambodia in 2001. The statute went into effect on April 30, 2003. The pair traveled within Thailand for a few months and then settled in their new home in Phnom Penh in January 2002. In June 2003, Cambodian police arrested Defendant for having had sex with three young boys. The U.S. took jurisdiction and the authorities escorted Defendant to the U.S. for trial.
Defendant entered into a plea agreement which admitted the facts but reserved his right to challenge the indictment on constitutional, jurisdictional and statutory grounds. The district court ended up dismissing the indictment. It held that the statute did not apply retroactively to Defendant’s foreign travel prior to April 30, 2003. The Government appealed. The U.S. Court of Appeals for the Ninth Circuit, however, affirms.
The application of the statute to individuals whose travel took place before its effective date is a matter of first impression in the Circuit Courts. The statute at issue seeks to contribute to the control of international child sex tourism. It provides in relevant part that “Any United States citizen or alien admitted for permanent residence [1] who travels in foreign commerce, and [2] engages in illicit sexual conduct with another person shall be fined … or imprisoned for not more than 30 years, or both.” 18 U.S. C. Section 2423(c). Analyzing the relationship between the two elements of the offense, the Court holds that Section 2423(c) does not apply where the travel took place before its effective date even though Defendant committed the alleged illicit act thereafter.
“Our conclusion follows largely from the plain language of the statute. Critical to our statutory interpretation is that Section 2423(c) specifies, as one of the crime’s two elements, that it covers ‘[a]ny United States citizen . . . who travels in foreign commerce.’ 18 U.S.C. Section 2423(c) … The use of the present tense suggests that statutory element does not apply to travel that occurred before the statute’s enactment.” [Slip op. 6]
” … [Defendant's] travel had ended by April 30, 2003…. As of that date, it had been nearly eighteen months since his last airplane flight from the United States, and almost sixteen months since he had begun residing in a Phnom Penh home purchased for him. As of April 30, 2003, [Defendant] had given up his residence in the United States, begun fulfilling Cambodia’s five year residency requirement, and intended then to apply for Cambodian citizenship. The government does not dispute those facts. Instead, it admits in its brief that [Defendant] ‘took up residence in Cambodia.’”
“It is thus evident that [Defendant] had both arrived in Cambodia and resettled in that country before Section 2423(c) was passed. His travel had ended on either plausible interpretation of the term ‘travel’ as used in Section 2423(c). As Congress did not intend to cover those whose travel ended before that date, he could not be charged under Section 2423(c).” [Slip op. 12]
Citation: United States v. Jackson, 2007 WL 925730 (9th Cir. 2007).
Filed in: 2007 International Law Update, Issue3
By admin
Divided U.S. Supreme Court decides that phrase “convicted in any court” in federal statute penalizing gun possession by felons applies only to prior U.S. convictions
In 1994, a Japanese court convicted Gary Small (defendant) of smuggling firearms and ammunition. After serving a five-year sentence there, he returned to the U.S. and bought a gun in Pennsylvania. When the authorities found out about his conviction, they charged him under 18 U.S.C. Section 922(g)(1). It prohibits “any person … convicted in any court … of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm.” (Emphasis added). Defendant pleaded guilty but reserved his right to appeal the ruling that his foreign conviction fell within the scope of the statute.
The district court and the Third Circuit rejected defendant’s argument. The U.S. Supreme Court then granted certiorari to resolve the split in the Circuit Courts on this important issue. In an opinion by Justice Stephen G. Breyer, joined by Justices Stevens, O’Connor, Souter and Ginsburg, the Court reverses and remands. They hold that Section 922(g)(1)’s words “convicted in any court” refer only to U.S. convictions.
Justice Breyer begins by noting that Congress generally legislates with domestic concerns in mind. In effect, there is a rebuttable “presumption” that Congress probably did not intend a statute to apply extraterritorially.
Furthermore, reading the statute broadly to include foreign convictions could lead to bizarre results because of the “novel” criminal legislation in many foreign legal systems. For example, the Soviet Union once enacted a statute that barred entrepreneurial activities. Some legal systems accept the testimony of one man as equivalent to that of two women. Singapore punishes acts of vandalism much more seriously than the U.S. does.
The Court finds no tangible indication that Congress meant to include foreign convictions. “The statute’s language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. …”
“[...] The statute’s lengthy legislative history confirms the fact that Congress did not consider whether foreign convictions should, or should not, serve as a predicate to liability under the provision here at issue. Congress did consider a Senate bill containing language that would have restricted predicate offenses to domestic offenses. … And the Conference Committee ultimately rejected this version in favor of [the above] language …”
“But the history does not suggest that this language change reflected a congressional view on the matter before us. Rather, the enacted version is simpler and it avoids potential difficulties arising out of the fact that States may define the term ‘felony’ differently…. Thus, those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor …” [Slip op. 12-16]. Thus, there is no reason to believe that Congress intended to include foreign convictions in the statute.
Justice Clarence Thomas dissents, joined by Justices Scalia and Kennedy. The dissenters opine that the plain meaning of the statute does include foreign convictions. In particular, the dissenters take issue with the Court’s application of the presumption against extraterritoriality in this case. Foreign convictions are an indication of a degree of dangerousness and culpability.
“We have, it is true, recognized that the presumption against extraterritorial application of federal statutes is rooted in part in the ‘commonsense notion that Congress generally legislates with domestic concerns in mind.’ … But my reading of Section 922(g)(1) is entirely true to that notion: Gun possession in this country is surely a ‘domestic concern.’”
“We have also consistently grounded the canon in the risk that extraterritorially applicable laws could conflict with foreign laws, for example, by subjecting individuals to conflicting obligations … That risk is completely absent in applying Section 922(g)(1) to Small’s conduct.”
“Quite the opposite, Section 922(g)(1) takes foreign law as it finds it. Aside from the extraterritoriality canon, which the Court properly concedes does not apply, I know of no principle of statutory construction justifying the result the Court reaches. Its concession that the canon is inapposite should therefore end this case.”
“Rather than stopping here, the Court introduces its new ‘assumption about the reach of domestically oriented statutes sua sponte, without briefing or argument on the point, and without providing guidance on what constitutes a ‘domestically oriented statute.’ …”
“The majority suggests that it means all statutes except those dealing with subjects like ‘immigration or terrorism,’ … apparently reversing our previous rule that the extraterritoriality canon ‘has special force’ in statutes ‘that may involve foreign and military affairs,’ … The Court’s creation threatens to wreak havoc with the established rules for applying the canon against extraterritoriality.” [Slip op. 27-29].
Citation: Small v. United States, 125 S.Ct. 1752, 73 U.S.L.W. 4298 (2005).
Filed in: 2005 International Law Update, Issue 5
By admin
Seventh Circuit dismisses Nigerian defendant’s appeal from district court’s refusal of downward departure at sentencing because lower court had discretion to decide whether likelihood of additional imprisonment in Nigeria for having U.S. drug conviction warrants such downward departure
U.S. authorities arrested Kafayat Abimbola-Amoo (hereinafter Amoo) in August 2003 after she arrived from her native Nigeria carrying 806 grams of heroin. After she pled guilty to possession of heroin, the court sentenced Amoo to 57 months imprisonment. At sentencing, she had argued for a downward departure.
She pointed out that, after serving her U.S. sentence and later being deported, the Nigerian authorities would probably imprison her again. She presented “Decree 33″ of Nigeria’s National Drug Law Enforcement Agency. It provides for five years of imprisonment and assets forfeiture for those convicted of drug offenses abroad, thus bringing “the name of Nigeria into disrepute.” She further showed that the court backlogs in Nigeria are excessive.
The district court denied a downward departure, and Amoo appealed. In a 2 to 1 vote, the U.S. Court of Appeals for the Seventh Circuit dismisses the appeal for lack of jurisdiction. It rejects Amoo’s argument that the district court failed to realize that it had the power to reduce the sentence based on the evidence she put forth.
“She infers that, by framing the issue as whether a United States court should ‘ever’ consider a successive foreign punishment, the court was necessarily exploring the question as a categorical legal matter. Yet in the very next paragraph, the sentencing judge opined that Nigeria’s laws are for Nigeria alone, and that Amoo’s prospect of future imprisonment in Nigeria was not the concern of a United States court. … [T]he judge made a value-laden judgment that foreign incarceration should be a matter for the foreign jurisdiction. This decision was the essence of discretion, and we may not second-guess it.” [Slip op. 11-12]
The dissenter would in fact consider the risk of additional imprisonment in Nigeria to a limited degree. “I would hold … that the risk of foreign prosecution is not a forbidden ground of departure. Analogizing to the various sources of law I have discussed, … I would treat it as a discouraged ground. The proper result here would be to vacate the district court’s decision and to remand for development of an appropriate record on the basis of which the court could then exercise its discretion. I respectfully dissent from the majority’s decision to dismiss this appeal for want of jurisdiction.” [Slip op. 16-20]
Citation: United States v. Abimbola-Amoo, 2004 WL 2660655; No. 03-4233 (7th Cir. Nov. 23, 2004).
Filed in: 2004 International Law Update, Issue12
By admin
As matter of first impression, Second Circuit rules that federal statute prohibiting possession of firearms by convicted felon does not include foreign convictions
In 2001, authorities arrested defendant Ingram in a Plattsburgh, New York, hotel, suspecting that he had entered the U.S. illegally from Canada. The officers later found a large number of firearms in Ingram’s hotel room. The government charged him with several offenses, including the export of defense articles designated on the U.S. Munitions List, and being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g)(1).
As for the felony, Canadian authorities had convicted Ingram in 1996 for violating Section 85(1)(a) of the Canadian Criminal Code for using a firearm in the commission of an indictable offense. The statute provides for a maximum imprisonment of 14 years.
The district court denied Ingram’s motion to dismiss the felon-in-possession count even though the predicate conviction had occurred in Canada. Ingram appealed. The U.S. Court of Appeals for the Second Circuit finds that the statute does not encompass convictions by foreign courts. It reverses the present conviction and remands for re-sentencing on the remaining counts.
First, the Court acknowledges the circuit split on this issue. The Third, Fourth and Sixth Circuits, along with two district courts, have opined that “in any court” includes foreign courts. The Tenth Circuit, however, invoking the rule of lenity, has concluded that the “in any court” language is ambiguous as to whether foreign offenses may serve as predicate convictions under this statute.
Second, to resolve the statutory ambiguity, the Court turns to the Senate Judiciary Committee Report on the Gun Control Act. It strongly suggests that the Congress did not intend foreign convictions to serve as predicate offenses under Section 922(g)(1).
“The Senate Report explained the meaning of the term ‘felony’ as follows: ‘The definition of the term ‘felony’, as added by the committee is a new provision. It means a Federal crime punishable by a term of imprisonment exceeding 1 year and in the case of State law, an offense determined by the laws of the State to be a felony.’ S. Rep. No. 90-1501, at 31 (1968). The Senate Report thus unmistakably contemplated felonies, for purposes of the Gun Control Act, to include only convictions in federal and state courts.” [Slip Op. 15]
Moreover, the Conference Report [H.R. Conf. Rep. 90-1956 (1968)] which adopted the House version of the bill, voiced no disagreement with the Senate Report’s explicit limitation of such convictions to domestic courts. Even though there may be good arguments for including foreign convictions under Section 922(g)(1), Congress would have to say so expressly.
Citation: United States v. Gayle, 342 F.3d 89 (2d Cir. 2003).
Filed in: 2003 International Law Update, Issue9
By admin
As matter of first impression, Eleventh Circuit holds that “final action” under 18 U.S.C. Section 3292 which can toll limitations period for crimes while government is requesting information from abroad under Mutual Legal Assistance Treaty means objectively complete obedience to request
Gabriel Torres, as director of Garces Commercial College, and other college employees, allegedly fleeced the U.S. Department of Education by filing fraudulent student applications under the Pell Grant Program. Lasting until February 1995, the fraud scheme netted millions of dollars which defendants transferred to corporate bank accounts on the Isle of Man [Editors: An autonomous possession of British crown located in Irish Sea].
On July 9, 1999, the U.S. government asked the Isle of Man government to produce various records under a Mutual Legal Assistance Treaty (MLAT). The U.S. Department of Justice’s Office of International Affairs (OIA) handled the matter. After this MLAT request, the Government submitted an ex parte application to the district court for a suspension of the statute of limitations “for the period beginning July 9, 1999, and ending on the date the Isle of Mann [sic] takes final action on the request for evidence.”
The Isle of Man first responded to the MLAT request on November 12, 1999. Detective Constable Annie Kneale of the Isle of Man’s Constabulary Fraud Squad faxed the response to the OIA. She noted on the fax cover sheet “Enclosed is the information you require,” and attached bank statements for six bank accounts. Nevertheless, the OIA did not get several documents it had asked for. These included authenticated copies of checks, deposits and withdrawal slips, and transfer documents for the accounts.
On January 12, 2000, without moving for an extension of its motion to toll the statute of limitations, the Government renewed its request for the above items to the Isle of Man. On March 8, 2000, Constable Kneale faxed the remaining documents, along with the notation “Enclosed are all documents that Barclays Bank PLC Isle of Man hold on the above investigation.”
A grand jury indicted Torres and a co-defendant in June 2000. Torres moved to dismiss the indictments as time-barred under 18 U.S.C. Section 3282 which provides for a five-year statute of limitations. Torres argued that the Isle of Man had taken “final action” in November 1999, the date of its first response. Thus, the alleged criminal activities completed by December 30, 1994 (the day Garces College closed) became time-barred as of May 5, 2000. The remaining allegations relating to February 23, 1995 (the date of alleged fund transfer from Garces College to individual accounts) allegedly became time-barred on June 28, 2000.
The district court disagreed. It found that “final action” took place when the Isle of Man had submitted its complete response on March 8, 2000, thus tolling the statute of limitations for 242 days. Torres appealed his ensuing convictions. The U.S. Court of Appeals for the Eleventh Circuit affirms.
Section 3292 provides that “upon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court … shall suspend the running of the statute of limitations for the offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.” Under Section 3292(b), such tolling “begins on the date on which the official request is made and ends on the date on which the foreign court or authority takes final action on the request.”
The statute, however, does not define “final action.” The legislative history shows that Section 3292 aimed to make foreign business records more readily obtainable in admissible form in criminal cases. In United States v. Bischel, 61 F.3d 1429 (9th Cir. 1995), for example, the Ninth Circuit held that “final action” requires a dispositive response to all items set forth in the request. In United States v. Meador, 138 F.3d 986 (5th Cir. 1998), the Fifth Circuit generally concurred with the Ninth, but more narrowly held that “final action” comes about when the foreign government believes that it has fully carried out its obligations.
“We … decline to adopt the Meador test as we find that it creates a result that is inconsistent with the Congressional intent underlying Section 3292. … Indeed, under the Meador test, Section 3292 turns on the subjective opinion of foreign countries – -whether correct or not –rather than on an objective assessment of whether the responding country’s submissions were, in fact, complete. …”
“Congress’s intent of ‘facilitating … the cumbersome process of obtaining evidence from foreign governments is not furthered by a test that disregards the completeness of a foreign government’s response and instead ‘makes American law dependent on the customs and bureaucratic language of foreign cultures rather than [on] a sound application of American policy.’ …”
“Certainly, there is no need to create a test that requires the government to reapply for a suspension of the limitations where, as here, the foreign government inadvertently omitted documents that fell within the scope of the government’s original request for which it had already obtained a suspension.” [Slip op. 14-15]
“Accordingly, as the Isle of Man’s response on November 12, 1999 was incomplete … and the statement on the cover sheet did not provide a dispositive response concerning the omitted documents — it did not take ‘final action’ on that date. Indeed, as the district court found, the Isle of Man did not take ‘final action’ until March 8, 2000 when it provided a clear, dispositive, and unambiguous response to each item in the government’s original request.” [Slip op. 19]
The Circuit Court, however, questions whether the U.S. prosecutor should be the one who decides when “final action” has taken place. Congress obviously thought about this issue, and placed two safeguards in Section 3292. First, it put a three-year limit on the suspension period in subsection (c)(1). Secondly, if the foreign government takes final action “before the statute of limitations would otherwise expire,” subsection (c)(2) limits the suspension period to six months.
Consequently, both indictments of Torres were timely here. In the Court’s view, however, the better practice for the government in a like case would be to ask for an extension of the suspension period when the foreign government is nonresponsive or provides only an incomplete answer.
Citation: United States v. Torres, No. 02-11082 (11th Cir. January 17, 2003).
Filed in: 2003 International Law Update, Issue 2
Next Page »