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Reviewing conviction of U.S. citizen for murdering his wife in Haiti, Fifth Circuit upholds Foreign Murder Statute provision that grants Attorney General unreviewable power to find that Haiti lacked lawful ability to secure defendant’s return from U.S. despite existence of U.S.-Haiti extradition treaty
In 1998, Curtis Wharton (Wharton) was working for All American Insurance in Shreveport, Louisiana. A 1997 “Dateline NBC” made a lasting impression on Wharton. It discussed how certain perpetrators had defrauded life insurance providers by obtaining false death certificates from Haiti. Sheila Webb married Curtis Wharton in September 1999.
Later on, Wharton discussed with his co-worker Judy Nipper how they could successfully work that fraud scheme because they had someone who could “furnish them with a body,” i.e, that of Wharton’s wife. Four months after the wedding, someone found Sheila in Haiti with four gunshots to her head and neck. The autopsy revealed that someone had drugged her with the “date-rape drug” Rohypnol. Her purse had been emptied, but she was still wearing her jewelry.
Wharton tried to fool the Haitian National Police (HNP) by claiming that they had been carjacked, and that the car-jackers fled after killing Sheila. Before the HNP could detain him, Wharton returned to the U.S. and tried to collect her life insurance proceeds.
Following an FBI investigation, a federal grand jury indicted Wharton and Nipper for the foreign murder of a U.S. national and other offenses. Wharton appealed his subsequent conviction. The U.S. Court of Appeals for the Fifth Circuit affirms.
Among other challenges, Wharton claimed that the Foreign Murder Statute, 18 U.S.C. Section 1119, is unconstitutional as applied to him. Section 1119(b) provides: “A person who, being a national of the United States, kills or attempts to kill a national of the United States while such a national is outside the United States but within the jurisdiction of another country shall be punished …”
Under Section 1119(c)(2), it was enacted that: “No prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return. A determination by the Attorney General under this paragraph is not subject to judicial review.”
Here, Wharton argued that the U.S. and Haiti have a valid extradition treaty and the statute thus does not apply to him. The Court, however, is not convinced. “The statute … clearly states that the Attorney General’s determination on this issue is not subject to review. …”
“Defendant contends that the Attorney General should not be permitted to make a determination that a person is beyond the reach of the foreign country when facts establish that the country could secure his return. The Government responds that the Attorney General’s determination is not an element of the crime and, therefore, does not raise Fifth Amendment due process concerns. We agree.” [Slip op. 12-13]
“Subsection (c), titled ‘Limitations on prosecution,’ separately identifies two qualifications on foreign murder prosecutions. The first requires that the Attorney General … approve the prosecution. Subsection (c)(1) also provides that no prosecution shall be approved if another country is prosecuting the defendant for the same conduct.
“Subsection (c)(2) similarly provides that no prosecution shall be approved unless the Attorney General determines that the country in which the murder took place lacks the ability to secure the defendant’s return. The structure of the statute suggests that Congress intentionally separated these two limitations from the offense identified in subsection (b).”
“When viewed in context, these limitations refer to the Attorney General’s decision to approve the prosecution for foreign murder, a decision equivalent to the general exercise of prosecutorial discretion. In United States v. White, 51 F.Supp. 2d 1008, 1012 (E.D. Cal. 1997), the court faced a similar question. There, the defendant was also charged under the foreign murder statute and argued that, because Japan had the ability to secure the defendant’s return under an extradition treaty, the Attorney General’s determination was unreasonable.”
“The court refused to review that determination, upholding the statute’s prohibition against judicial review: … While not binding, we find White persuasive. We conclude that the statutory structure suggests that Congress intentionally separated the Attorney General’s prosecutorial decisions from the elements of the crime.” [Slip op. 15-16]
Citation: United States v. Wharton, 2003 WL 231299 (5th Cir. February 4, 2003).
Filed in: 2003 International Law Update, Issue 2
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Eighth Circuit rejects foreign criminal defendants’ claims that violation of Vienna Convention on Consular Relations rendered their inculpatory statements inadmissible or, in any event, barred U.S. Government from seeking death penalty
Arboleda Ortiz, German Sinisterra and Plutarco Tello (defendants) were part of the cocaine distribution ring ran by Edwin Hinestroza in the Kansas City area. The shipments came from “La Oficina” (“the office”) in Colombia via Mexico. When Julian Colon and Heberth Andres Borja-Molina (Borja) allegedly stole $240,000 of drug proceeds from Hinestroza’s apartment, the three defendants abducted and shot them. Borja only pretended to be dead, eventually escaping from the trunk of the car where the defendants had left him with Colon’s corpse.
Officials arrested the defendants within hours and advised each one of his Miranda rights. When the police found out that defendants were not U.S. citizens, they explained their rights to have their consulate notified pursuant to the Vienna Convention. Sinisterra did not respond when advised of his Convention rights. Moreover, Ortiz later claimed that the police had not clearly explained to him about his rights under the Convention. Finally, the Government concedes that it had failed to so advise Tello.
At trial, the defendants presented evidence of their limited abilities to speak and understand English, about one of the police officer’s limited Spanish language abilities, and about several misunderstandings which had taken place. The former Colombian Consul General in Chicago, IL, testified that the police had failed to notify him about the defendants’ arrests. The district court, however, found that the defendants had understood their rights and had voluntarily waived them.
Defendants appealed their convictions (two of them death sentences) for murder, drug trafficking and other offenses on the grounds that police had obtained their inculpatory statements in violation of Miranda and the Vienna Convention on Consular Relations, Article 36 [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S. 261; entered into force for U.S. December 24, 1969]. The U.S. Court of Appeals for the Eighth Circuit, however, affirms.
In the Court’s view, the Vienna Convention appears to grant judicially enforceable rights. “In particular, the provision in Article 36(1)(b) that ‘the … authorities [of the receiving State] shall inform the person concerned without delay of his rights … appears to recognize that the person detained does have rights under the Treaty. The antecedent of the pronoun ‘his’ in this sentence is ‘the person arrested, in prison, custody or detention,’ a phrase occurring in the immediately preceding sentence.”
“As we noted …, the federal courts are not in agreement as to whether Article 36 of the Convention creates a right enforceable by an individual who has been arrested. [Cites] The Supreme Court has not directly addressed the issue, though it has said that the Convention ‘arguably confers on an individual the right to consular assistance following an arrest.’ [Slip op. 26-27]
Here, the defendants maintained that the Convention violation makes their inculpatory statements per se inadmissible regardless of whether they were voluntary. Assuming arguendo that the Convention does create individually enforceable rights, the Court disagrees. “In other words, there is no evidence that defendants, if they had been given proper consular access, would have chosen not to waive their Miranda rights. So far as we can tell, the course of the trial would not have been changed at all.”
“Furthermore, the Vienna Convention does not require that interrogation cease until consular contact is made. The interrogation in this case occurred on a Sunday. If defendants had been allowed to telephone the consul, they could not have reached him. The most that could have been done was to leave a message on the consulate’s voice mail, and the consul would have returned the call the next day. By that time, defendants, fully informed of their rights under Miranda, had already confessed. In other words, defendants have shown no prejudice, and therefore the violation of the Vienna Convention is of no avail to them, even if the violation is assertable by an individual detained person.” [Slip op. 28-29]
The Eighth Circuit also rejects the defendants’ argument that the purported violation of the Convention bars the Government from seeking the death penalty. The Court sees no causal or logical connection between the penalty imposed and a Convention violation. The Convention itself does not address the adequacy of penalties, and this Court should not try to create such a remedy out of thin air.
Citation: United States v. Ortiz, 2002 WL 31454772, Nos. 00-4082WM, 00-4083WM & 01-1136WM (8th Cir. November 5, 2002).
Filed in: 2002 International Law Update, Issue 11
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United States has persuaded two individual states parties to Statute of International Criminal Court to enter into bilateral arrangements with it under Article 98(2) of Statute whereby party agrees not to turn over American service members to ICC without U.S. consent
The United States is asking various nations which have ratified the Statute of the International Criminal Court (ICC) to enter into bilateral agreements to refrain from handing over American citizens to the ICC for prosecution without U.S. consent. The U.S. has expressed two concerns: (1) that various nations might, for political purposes only, ask the ICC to prosecute U. S. peacekeepers for war crimes or crimes against humanity and (2) that the ICC prosecutors will not be accountable to any international organization or to U.S. laws or officials for the exercise of their discretion to file, or not to file, charges.
ICC Article 98 (2) authorizes bilateral arrangements of this type. It provides: “The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”
According to the U.S., many of its allies have privately suggested the use of Article 98 agreements to meet the above U.S. worries. So far Romania and Israel have signed agreements with the U.S. On the other hand, Canada, Norway, Switzerland and Yugoslavia reportedly have declined to do so.
Philip Reeker, a U.S. State Department spokesman, cited the recently enacted American Servicemembers Protection Act (ASPA) [Pub. Law 107-206, 22 U.S.C.A. Sections 7421-7433 (Aug. 2, 2002)] as authorizing the President to stop providing military aid to countries that decline to enter into Article 98 arrangements. “Military assistance” programs that could be cut off include (1) international military education programs that bring foreign officers and students here for professional military training and (2) finance deals to aid nations in buying American weapons and services. These restrictions do not apply to assistance to NATO member countries or major non NATO allies or others. The Act also empowers the President to waive these restrictions where a country has signed an Article 98 agreement and also in other cases where it’s in the national interests.” For instance, ASPA exempts major allies such as Israel, Egypt, Australia, Japan and South Korea from the military assistance ban.
The Act also provides that the President may take “all means necessary and appropriate to release [U.S.] citizens arrested by the [ICC].” Means available to rescue U.S. citizens could presumably include military force.
During July 2002, the Bush administration unsuccessfully tried to persuade other countries at the United Nations, including its European allies, that American forces deserve blanket immunity from ICC jurisdiction because of their large numbers (about 9,000) and because of the U.S. fear that they constitute a vulnerable political target. During a series of delicate negotiations at the U.N., the U.S. indicated that it might veto Security Council authorization to continue U.N. peacekeeping missions in Bosnia and Croatia, unless the Council dealt with its concerns over immunity.
The concession was a one year exemption for U.S. forces, and the missions were renewed. There is no known instance where the existing war crimes tribunals, i.e., ICTY and ICTR, have tried any U.N. peacekeeper for war crimes.
Citation: The Washington Post, Final Ed., Tuesday, July 2, 2002, page A-09 (byline of Glenn Kessler); The New York Times, Late Ed., Wednesday, August 7, 2002, page A-1; Id., Late Ed., Final, Saturday, August 10, 2002; The Washington Times, Tuesday, August 13, 2002, Final Edition, page A-01; The Guardian (London), August 14, 2002, page 14 (byline of Matthew Engel); The Financial Times (London), Lond. Ed., Thursday, August 15, 2002, page 8.
Filed in: 2002 International Law Update, Issue 8
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In case involving extraterritorial application of Maritime Drug Law Enforcement Act, Fifth Circuit decides that Due Process Clause does not require nexus between foreign citizen and United States where his vessel’s flag nation has waived any objection to U.S. enforcement
According to the charges in this case, Nestor Suerte, a Philippine citizen and resident of Colombia, was the captain of a freighter registered in Malta and owned by a member of the Colombian/Venezuelan drug trafficking organization (DTO). The ship sailed from Venezuela on August 11, 2000, with 4900 kilograms of cocaine on board intended for distribution in Europe. Venezuelan authorities intercepted the shipment and about 2700 kilograms of cocaine were lost. The DTO then telexed Suerte to make a second attempt to deliver the cocaine in international waters.
Meanwhile, the U.S. asked for and received permission from Maltese authorities to board and search the freighter. The U.S. Coast Guard search, however, did not turn up any cocaine. After receiving Malta’s waiver of objection to the enforcement of U.S. laws over the freighter and its crew, the U.S. Coast Guard towed the freighter to Houston, Texas, for a more thorough search. Customs Agents eventually found in Suerte’s cabin the DTO telex with the instructions for the second delivery attempt, as well as an attache case with $3,500 in $100 bills.
The U.S. government indicted Suerte for conspiracy to possess, with intent to distribute, more than five kilograms of cocaine on board a vessel subject to U.S. jurisdiction, in violation of the MDLEA. The relevant section of the Maritime Drug Law Enforcement Act (MDLEA) provides that “(a) It is unlawful for any person … on board a vessel subject to the jurisdiction of the United States … to knowingly or intentionally … possess with intent to … distribute [] a controlled substance … (c)(1) For purposes of this section, a ‘vessel subject to the jurisdiction of the United States’ includes – …(C) a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States.” (46 U.S.C. App. Section 1903)
Suerte moved to dismiss the indictment for lack of jurisdiction because he had no nexus to the U.S., and thus the Constitution does not permit MDLEA to have extraterritorial effect over him. After reviewing the principles of extraterritorial jurisdiction under international law, the district court decided that U. S. law does require such a nexus and dismissed the indictment. The Government appealed, arguing that a nexus did exist and, alternatively, that the Constitution does not require such a nexus.
The U.S. Court of Appeals for the Fifth Circuit vacates and remands. The Court notes that the issue raised by defendant is a matter of first impression in the Fifth Circuit and that the U.S. Supreme Court has not yet decided whether there is a nexus requirement limiting the extraterritorial reach of the MDLEA. Of the three Circuits that have addressed the issue, the Ninth Circuit has held that the Due Process Clause does require a nexus whereas the First and Third Circuits have rejected such a stricture.
The Court also notes that the opinions of the other Circuits do not refer to certain key sources of law. These included the Constitutional Convention debate surrounding the Piracies and Felonies Clause (“The Congress shall have Power … to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”), and Supreme Court opinions reviewing the exercise of Congress’ powers under that Clause. These sources support the notion that Due Process does not require a U.S. nexus for the MDLEA’s extraterritorial application “where the flag nation has consented or waived objection to the enforcement of United States law by the United States” (see Section 1903(c)(1)(C)).
The 1790 Act for the Punishment of Certain Crimes Against the United States applied to crimes committed “upon the high seas.” The Supreme Court has found that there is no nexus requirement for the extraterritorial application of statutory crimes to foreign citizens on the high seas. Therefore, the Circuit Court finds it unnecessary to decide whether the Due Process Clause imposes no constraints on the extraterritorial application of the MDLEA. The Due Process Clause might conceivably set some limits or conditions on the MDLEA’s extraterritorial reach. It does not impose a nexus requirement in the instant case, however, because Congress does derive the power to act extraterritorially from the Piracies and Felonies Clause. This Clause is “the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States.” (See S.Doc. No. 103-6, at 304)
Finally, the Court concludes that international law does not require such a nexus. “Malta, under whose flag Suerte’s vessel was registered, consented to the boarding and search of his vessel, as well as to the application of United States law. A flag nation’s consent to a seizure on the high seas constitutes a waiver of that nation’s rights under international law. (Cit.) ‘Interference with a ship that would otherwise be unlawful under international law is permissible if the flag state has consented’. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES Section 522 cmt. e (1987) …”
“Along this line, and as noted, the MDLEA provides: ‘[A] ‘vessel subject to the jurisdiction of the United States’ includes … vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States’. 46 U.S.C. App. Section 1903(c)(1)(C). This codifies the generally accepted principle of international law: a flag nation may consent to another’s jurisdiction. See RESTATEMENT (THIRD), above, Section 522, reporters note 8 … Such an agreement between the United States and a flag nation to apply United States law on a flag-nation vessel may be made informally.” [Slip op. 26-27] Enforcement of the MDLEA under these circumstances would neither be arbitrary nor fundamentally unfair.
Finally, the Court notes that Congress considers drug trafficking a serious international problem which almost every nation has condemned. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (20 December 1988, 28 I.L.M. 493), to which both Malta and the U.S. are parties, has as one of its purposes “to promote cooperation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension” (see Article 2 of the Convention).
Citation: United States v. Suerte, No. 01-20626, 2002 WL 977267 (5th Cir. May 14, 2002).
Filed in: 2002 International Law Update, Issue 5
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In drug importation prosecution, Supreme Court of Canada decides, as matter of first impression, that restrictive statute on duress defense violates principles of fundamental justice embodied in Section 7 of Canadian Charter of Rights and Freedoms
On April 30, 1994. Marijana Ruzic, a citizen of the former Yugoslavia, arrived in Canada with two kilos of heroin strapped to her body. Canadian authorities charged her (1) with importing heroin in violation of the Narcotic Control Act and (2) with using an illegal passport. At her jury trial, the defendant conceded that she had engaged in both violations but contended that she was then acting under such duress as would relieve her of any criminal liability.
According to her story, Marko Markovic had accosted defendant on a Belgrade street, telephoned her on many occasions and assured her that he would harm her mother if she did not deliver some heroin to a restaurant in Toronto. Markovic once burned her arm with a lighter and injected her with some sort of drug that made her sick. Defendant believed that Markovic had been a paid killer during the war. She admitted failing to go to the local police because she believed that they were crooked themselves.
Section 17 of the Canadian Criminal Code recognizes a defense to crime for one “who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed.” Realizing she did not come within its purview, defendant persuaded the trial court of the unconstitutionality of Section 17 under Section 7 of the Canadian Charter of Rights and Freedoms. Section 7 provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” After she asserted the common law defense of duress, the jury acquitted her.
The Crown filed for review of the acquittal on the heroin charge but the Court of Appeal dismissed the case. Upon a further appeal by the Crown, the Supreme Court of Canada dismisses.
As a matter of first impression, the Court declares that, while moral involuntariness does not nullify the actus reus or the mens rea of a criminal offense, it is a principle of fundamental justice which merits protection under the Charter. The penalty and taint of criminal liability should apply only to voluntary conduct which is the product of free will and bodily control, unimpeded by outside curbs. Imprisoning a person and branding him or her as a criminal contravene basic principles of justice if the individual lacked any realistic choice but to commit the crime.
In its plain meaning, Section 17 of the Code, in practical effect, requires that the threatener be either at the scene of the coerced crime or in a position to make good on the threat without delay if a defendant should refuse to commit it. The elements of immediacy and presence in combination obviously rule out threats of future harm. They also set up a major roadblock to relying on the defense in hostage or other third-party situations. Finally, these criteria would have a hard time qualifying under the principle of proportionality. The statutory injury to a defendant’s rights by applying Section 17 is not insubstantial.
Section 17 of the Code, however, did not entirely supplant the common law doctrine of duress. Over time, this doctrine has liberated itself from the strictures of immediacy and presence, thus becoming more compatible with Charter values. In a common law duress situation, the defendant has both rights as well as duties to third parties and to society. The law demands that there be a proportionality between the threat to personal integrity and the coerced criminal action, measured by the test of a reasonable person similarly situated. Under the same standard, the threat must take away from defendant any visibly safe means of escape. Finally, the common law requires the defendant to show some mettle and to put forth a normal degree of opposition.
The Court critically analyzes a number of U.S. cases (which, for the most part, are fairly restrictive on the scope of the duress defense) as well as the Commonwealth precedents. “This review of the common law defence of duress confirms that, although the common law is not unanimous in the United States, a substantial consensus has grown in Canada, England and Australia to the effect that the strict criterion of immediacy is no longer a generally accepted component of the defence. … However, it is clear from the English cases that there must be a close temporal link between the threat of harm and the commission of the offence. The operative test in the English and Australian cases is whether the threat was effective to overbear the accused’s will at the moment he committed the crime. Moreover, the safe avenue of escape test and the proportionality principle also appear to be key elements of the [common law] defence.” [para. 86]
In the Court’s view, the trial judge adequately charged the jury under the above common law principles. Moreover, he properly explained to the jury that, once defendant has raised the duress defense and put in some evidence to support it, the Crown assumes the burden to negate the defense beyond a reasonable doubt.
Citation: Regina v. Ruzic, 2001 S.C.C. 24 (Sup. Ct. Can. April 20).
Filed in: 2001 International Law Update, Issue6
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Eleventh Circuit determines that district court lacked subject matter jurisdiction to grant habeas corpus relief from U. S. citizen’s foreign sentence being served in U.S. pursuant to treaty transfer
William Bishop, a U.S. citizen, took part in a conspiracy to sell 1,956 pounds of marihuana in the Bahamas. In 1995, a Bahamian court sentenced him to five years imprisonment and an $80,000 fine. If Bishop failed to pay the fine, then the prison sentence would increase another five years. Bishop did not pay the fine, thus adding five years to his sentence. The Bahamian prison authorities later granted Bishop a “remission” of his sentence to six years and eight months.
In 1996, the U.S. Department of Justice requested that The Bahamas transfer Bishop to the U.S. to serve the remainder of his sentence, pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons (March 21, 1983, 35 U.S.T. 2867, T.I.A.S. No. 10824) (entered into force for U.S. on July 1, 1985) to which both the U.S. and The Bahamas are parties. A U.S. magistrate held a Bahamian hearing involving Bishop and other U.S. offenders to confirm their consent to the transfer. At a later proceeding in New York, counsel informed Bishop that only a proceeding in The Bahamas could modify his sentence.
When Bishop failed to pay his fine, the U.S. Bureau of Prisons recalculated his prison sentence to include the additional five years imposed by the Bahamian court in case of non-payment. The U.S. Parole Commission later converted the additional five years into supervised release.
A federal public defender argued on Bishop’s behalf that imprisonment for inability to pay would be an unconstitutional imprisonment for debt in the U.S. and filed for habeas corpus in federal court. The district court eventually struck Bishop’s extra five-year sentence for non-payment of the fine. The U.S. Court of Appeals holds that the district court lacked subject matter jurisdiction to grant habeas relief in such a case, and therefore remands for dismissal.
“To decide if the district court had jurisdiction to grant collateral, habeas relief on a foreign sentence is to delineate the interaction between the Treaty and the implementing statutes, which determine the procedure in the United States for administering a foreign-imposed sentence to be completed here. (Cits.). … The Treaty signatories recognized ‘that foreigners who are deprived of their liberty as a result of their commission of a criminal offense should be given the opportunity to serve their sentences within their own society’ and ‘that this aim can be achieved by having them transferred to their own countries.’ (Cits.). … ”
“Nevertheless, ‘[a] sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.’ (Cits.) … Furthermore, provisions of our Constitution, including the writ of habeas corpus, ‘have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country’; an American citizen who commits a crime in a foreign country is subject to trial and punishment under the laws of that country …” [Slip op. 13-14]
Under Article 13 of the Treaty, the sentencing state has the exclusive right to decide on any review or modification of the sentence. If, after transfer to the U.S., the U.S. were to disregard foreign sentences for U.S. citizens who committed crimes abroad, foreign governments would stop consenting to such transfers.
Therefore, Bishop’s sentence “was consistent with and not ‘in violation of the Constitution or laws or treaties of the United States.’ … The implementing statutes clarify ‘that while the laws of the receiving nation shall govern the manner in which the sentence is served, the laws of the sentencing nation shall continue to govern both the validity of the conviction and the term of the sentence.’ … Therefore, we reverse the district court’s grant of habeas relief to Bishop because the judge had no jurisdiction to entertain Bishop’s habeas corpus petition challenging his sentence, much less to eliminate the supervised release established by the Parole Commission to retain the original Bahamian sentence.” [Slip op. 29]
Citation: Bishop v. Reno, No. 98-4109 (11th Cir. April 24, 2000).
Filed in: 2000 International Law Update, Issue 5
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German Federal Supreme Court reverses criminal conviction where lower court failed to obtain possibly exculpatory testimony by video conference of U.S. witness unwilling to testify in Germany
The 1998 Witness Protection Act (Zeugenschutzgesetz) amended Section 247a of the German Criminal Procedure Rules (Strafprozessordnung) to permit the audio-visual interrogation of witnesses who are testifying outside the courtroom. [The core rationale was to protect child complainants in abuse cases from psychologically stressful questioning]. The amendment also applies to witnesses abroad and to other witnesses who for some reason cannot testify in person.
Here, the Mannheim district court convicted defendant of cocaine-related offenses and sentenced him to seven years and nine months in jail. The defendant had allegedly received two of his cocaine shipments from a dealer in the United States. Denying any involvement with the American drug dealer, the defendant asked the German tribunal to question him in open court. The dealer answered questions in New York but refused to appear in the German court.
The Mannheim court deemed the transcript of the drug dealer’s statements incompetent evidence because the court could not obtain a “personal impression” of the witness. In its ruling of September 15, 1999, the Criminal Division of the Bundesgerichtshof (BGH) reverses the conviction on the counts involving the cocaine shipments from the U.S. and remands for a new trial on those counts only.
Both German and U.S. law allow for the taking of testimony by video conferencing even in the absence of a mutual legal assistance treaty (MLAT).
In the BGH’s view, the lower court had erred in finding the American witness “unavailable” without first looking into the feasibility of questioning the witness in this manner.
German trial courts, however, may question a witness under such circumstances only if it is “necessary to investigate the truth.” The district court has to determine whether that is the case here.
Citation: [German] Bundesgerichtshof, 1. Strafsenat, Urteil vom 15. September 1999 – 1 StR 286/99; Press release of the Court Number 74/1999.
Filed in: 1999 International Law Update, Issue 10
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For first time, new Japanese statute grants prosecutors and police broad and controversial wiretap powers to facilitate enforcement of anti-conspiracy laws
The Japanese Parliament (Diet) has passed a new Law that for the first time gives police broad wiretap powers in criminal investigations. Even though there are wiretap statutes in the U.S. and elsewhere, the new “Law concerning telecommunication interception for criminal investigation” is particularly controversial in Japan. The concerns stem from the experience of police brutality during the Second World War and severe crackdowns on student groups and labor unions during the 1950s and 1960s.
The Law seeks to enhance the investigations of criminal conspiracies, particularly gang murders, as well as drug and arms trafficking (see Article 1). The Law, however, establishes requirements and proper procedures for using wiretaps. For example, the prosecutor or law enforcement officers must first have enough proof that a criminal conspiracy involving murder, drugs, or arms is in progress (see Article 3).
Second, the prosecutor or the officers must apply for an “interception warrant” before a judge of the district court (see Article 4). The judge will issue an “interception warrant” for a period of less than 10 days (see Article 5). Although the judge may extend the validity of the warrant, the total period of interception should be less than 30 days (see Article 7). Authorities must seal the record of the interception and submit it to the court, describing the procedures used.
The Ministry of Justice will issue regulations to implement this Law (see Articles 9-11). They will prescribe how the police will notify the wiretapped individuals and what documents they will make available to affected persons.
Every year the Government must file a report to Parliament detailing the issuance of interception warrants (see Article 29). This law will become effective within one year of its publication.
Citation: Law concerning telecommunication interception for criminal investigations (Law 137) (Ministry of Justice), published in Kanpo [official gazette], Number 159 (August 18, 1999). [The English translation we received was courtesy of Ms. Akemi Yonemura of New York].
Filed in: 1999 International Law Update, Issue 9
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Eleventh Circuit, sitting en banc, rules that, under Hobbs Act, government need only show minimal impact of extortion upon interstate or foreign commerce, whether beneficial or adverse
During 1984 and 1985, Barry Kaplan, a Miami, Florida resident, deposited as much as $500,000 into two banks in Panama through a local attorney named Pablo Arosemena. The latter had power of attorney over the funds apparently to enable Kaplan to evade U.S. taxes.
When Kaplan found himself in financial straits four or five years later, he tried to get the money back. Arosemena refused to cooperate, however, and threatened to report these offshore funds to the IRS. Kaplan decided not to pursue the funds in the Panamanian courts and enlisted the aid of Judge Roy Gelber and Raymond Takiff, a Florida attorney who had once represented General Manuel Noriega, then the de facto leader of Panama.
Takiff offered to use his contacts to have the Panamanian military pressure Arosemena but warned Kaplan that the latter could get himself killed under this scheme. Kaplan agreed to the plan. To help himself in his separate criminal problems with the U.S., Takiff agreed with the government’s plan to tape many of the conversations about the plot.
If the plot succeeded, Gelber and Takiff would share in the proceeds of Kaplan’s funds. At the government’s instigation, someone gave Kaplan the false information that the military had visited Arosemena and had used force against him.
A federal grand jury later indicted Kaplan for conspiring to commit extortion in violation of the Hobbs Act, 18 U.S.C. Section 1951, and for attempts to violate both the Hobbs Act and the Travel Act.
The jury convicted Kaplan on both counts and he duly noted his appeal. He argued, inter alia, that the U.S. had failed to make out a prima facie case that the alleged offenses had an impact on foreign commerce. A panel reversed his conviction, holding that, to satisfy the Hobbs Act, the government did have the burden of proving an adverse effect on independent, pre-existing commerce.
Deeming the issue of importance, the U. S. Court of Appeals for the Eleventh Circuit granted a rehearing en banc. The full court overturns the panel ruling 8 to 4 and affirms the conviction.
The statute provides that “[w]hoever 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 fined under this title or imprisoned not more than twenty years, or both.” The Act defines “commerce” to include “all commerce between any point in a state … and any point outside thereof.”
In this case, the Court has to decide whether, looking at the evidence in the light most favorable to the government, enough evidence came in to allow a jury to find Kaplan guilty beyond a reasonable doubt. The Court found that it had.
“The government brought forth evidence that, if Kaplan’s scheme had succeeded, commerce would have been affected. The conspiracy required at least one transaction between Florida and Panama — payment of the extortion demand to Kaplan — [for] the conspiracy to be of benefit to the coconspirators. Kaplan sought access to these funds because he had exhausted his personal assets, and the coconspirators were to be paid from the money Kaplan received. So, the jury was entitled to find that the movement of substantial funds from Panama to Florida was the object of the coconspirator’s extortion plan.” [1355]
Having shown evidence of an impact upon commerce, the Court next determines whether the panel was correct in requiring that only an adverse impact qualifies under the Hobbs Act. The en banc court concludes that it was wrong and overrules the precedent on which the panel had relied. It concludes that the broad language of the Act requires only some minimal effect on commerce, whether beneficial or adverse, actual or potential, direct or indirect.
The four dissenting judges contend that the majority holding will lead to the “federalization” of any crime involving extortion to acquire money. Under such an expansive reading, the Hobbs Act would “completely subsume state extortion and robbery laws by creating a federal criminal offense in each and every case in which the pay-off is at all likely to cross state lines. Surely, Congress cannot have intended any such result.” [1358]
Citation: United States v. Kaplan, 171 F.3d 1351 (11th Cir. 1999).
Filed in: 1999 International Law Update, Issue 8
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In investigation of U.S. antitrust activities with international implications, Third Circuit holds that only evidence of joint U.S.-foreign prosecution implicates Fifth Amendment protection abroad
This case focuses on the impact on the Fifth Amendment privilege of United States v. Balsys, 524 U.S. 666 (1998) [see 1998 Int'l Law Update 81]. The appellants in this case are immunized witnesses who have refused to testify before a grand jury. Because this case involves the international aspects of an antitrust investigation, they alleged that foreign governments may prosecute them and that their case thus falls within the alleged Balsys “test.”
In 1997, a special grand jury in New Jersey started looking into anti-competitive activities in the artificial sausage-casings industry. Among the targets of the investigation were certain employees of one of the companies involved. The employees testified pursuant to a subpoena and to an immunity order from the district court.
While they did tell about their U.S. business, the employees refused to testify about events that related to foreign markets or that took place outside the U.S. The appellants pointed to the various antitrust agreements that the U.S. has concluded with other countries. In particular, they noted that the U.S. Antitrust Division had searched for evidence in Canada, Spain, the United Kingdom, Germany, Mexico and other countries.
The district court held the appellants in contempt and the U.S. Court of Appeals for the Third Circuit affirms. The Third Circuit finds that the Supreme Court’s opinion does not amount to a “test” for when possible foreign prosecution invokes Fifth Amendment protection. It held that the prospect of purely foreign prosecution lay outside the scope of the Fifth Amendment.
In Balsys, the Government sought the testimony of an individual who had served in the Lithuanian Army during the Second World War. He refused to testify, alleging fear of prosecution in Lithuania, Israel and Germany. The Supreme Court ruled that the fear of foreign prosecution, without a showing of joint action with the U.S., was not enough to invoke Fifth Amendment protection. The mere fact that the government contacts foreign nationals or requests documents from foreign countries does not amount to “joint prosecution” within the meaning of Balsys.
“…[T]he fact that other nations have enacted criminal antitrust laws does not dictate a conclusion that nations are acting in concert through a system of complementary substantive offenses, particularly where a number of the nations in which appellants claim they face prosecution in fact do not criminalize price fixing, have never had a successful criminal antitrust investigation or have never utilized the criminal antitrust provisions, or enforce antitrust violations through administrative proceedings.”
“The authorities that appellants cite … may indicate that such a case might present itself to us at some point in the future, but we view appellants’ argument as urging a ‘what if’ scenario rather than a true case of an ongoing or imminent international ‘cooperative prosecution’ that would warrant our viewing foreign activity as part of a domestic prosecution.” [Slip op. 16-17]
The joint international efforts noted by the Appellants fail to meet that standard.
Citation: In Re: Impounded, No. 98-6498 (3rd Cir. May 13, 1999).
Filed in: 1999 International Law Update, Issue 5
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