Extradition: Magistrate Certifies Extradition to Peru for Homicide

Extradition has been certified in the case of an American charged with murder in Peru. July 15, 2009. Penn Live.com The defendant is alleged to have traveled to Peru, and after having killed his wife Jana Claudia Gomez, to have disposed of her body in a suitcase. The suitcase was later washed ashore. Peruvian authorities submitted emails between the defendant and a second woman, with whom the defendant was having a romantic relationship.

Border Searches: 11th Circuit Upholds Detention of Pregnant Woman for Drug Search

July 15, 2009. The Eleventh Circuit upheld the dismissal of a federal civil rights action in the case of Denson v USA, based on the search of a pregnant woman arriving from Jamaica, who was also subjected to monitored bowel movements.
* * * *

More on Airport Border Searches:

Editor's note: For additional information on CBP policy re lap top searches, see CBP Policy Statement July 16, 2008.



A search by customs officers at an American airport, does not require reasonable suspicion, according to the Ninth Circuit in USA v Arnold. (4/21/2008).


"The Supreme Court has stated that: The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry. Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979)......... Courts have long held that searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment. Searches of the following specific items have been upheld without particularized suspicion: (1) the contents of a traveler’s briefcase and luggage, ....... In any event, the district court’s holding that particularized suspicion is required to search a laptop, based on cases involving the search of the person, was erroneous....... Therefore, we are satisfied that reasonable suspicion is
not needed for customs officials to search a laptop or other personal electronic storage devices at the border. "

Foreign Corrupt Practices Act: Trial of William Jefferson Underway

Update: Government facing an uphill battle to convict Jefferson? July 11, 2009. NOLA.com . The Jefferson trial is one of the first trials including a Foreign Corrupt Practices Act charge. NOLA.com reports on the trial. July 12, 2009.

Editor's Note: It appears that the defense might not have prevailed in their Rule 15 request....there is no reference to any deposition testimony of Abubakar?

There significant due process issues in the defense of a Foreign Corrupt Practices Act case, unless the Court is willing to make sure that the defense has the opportunity to present its defense.

While it is agreed that an American court does not have authority to subpoena a witness from outside the United States, at what point does a defendant have the basis to seek dismissal of a charge if no reasonable alternative is available? And what role will Mutual Legal Assistance treaties provide to defendants to secure witness testimony?


****************************************************************************
Previously posted. Wall Street Journal. June 17, 2009
* * * *
Previously posted: A trial court judge in the E.D. Virginia, has not yet ruled whether Rule 15 depositions should be ordered in the case against William Jefferson, in spite of opposition by the government. The Order of January 23, 2009 is useful to practitioners, in that it reviews defendants efforts to obtain foreign evidence by seeking Rule 15 depositions, and by use of a mutual legal assistance treaty (MLAT) with Nigeria and letters rogatory.

"A sixteen-count indictment (the “Indictment”) charges William J. Jefferson, a former member of the United States House of Representatives, with a variety of crimes including bribery, conspiracy, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. Among defendant's many pretrial motions is a request, pursuant to Rule 15(a), Fed.R.Crim.P., for an order permitting the depositions of Jennifer Douglas Abubakar, Atiku Abubakar, and Suleiman Yahyah-three individuals currently located in the Federal Republic of Nigeria (“Nigeria”) whose testimony he believes will be exculpatory on two charged crimes: (i) the charge, contained in count 1 of the Indictment, that he conspired to violate the Foreign Corrupt Practice Act (“FCPA”) in violation of 18 U.S.C. § 371; and (ii) the charge, contained in count 11 of the Indictment, that he violated the FCPA, specifically 15 U.S.C. § 78dd-2(a). In addition, since Atiku Abubakar and Suleiman Yahyah will not consent to being deposed, either in the United States or in Nigeria, defendant seeks either (i) an order requiring the government to invoke the Mutual Legal Assistance (“MLA”) Treaty between the United States and Nigeria to secure the depositions in Nigeria or (ii) the issuance of a letter rogatory to achieve the same result. For the reasons that follow, defendant's motion may not be granted at this time but must, for a limited period of time, await receipt of responses to a preliminary letter rogatory that will issue to the appropriate judicial authority in Nigeria requesting that Atiku Abubakar and Suleiman Yahyah be examined by written interrogatories regarding, among other things, their willingness to waive their Fifth Amendment rights and be fully deposed."

"At this point, defendant has not adequately established that exceptional circumstances exist to warrant deposing Mr. Abubakar and Mr. Yahyah, and so letters rogatory should not issue requesting Nigerian judicial officials' assistance in obtaining their depositions. Although defendant has adequately established that these witnesses would be unavailable to testify at trial and are likely to provide material testimony in a deposition in the event they waive the Fifth Amendment, defendant was unable to provide any assurance that the witnesses would not invoke the Fifth Amendment and therefore has not shown that they will provide material testimony.

Yet, rather than denying defendant's motion for authorization to take the depositions of Mr. Abubakar and Mr. Yahyah and his request for letters rogatory to secure the depositions, the motion is construed as including a request for judicial assistance in determining whether these witnesses would invoke the Fifth Amendment, and that lesser included motion is granted. Accordingly, a letter rogatory will issue requesting the appropriate Nigerian judicial authority to examine Mr. Abubakar and Mr. Yahyah by written interrogatories regarding their willingness to waive their Fifth Amendment rights and answer questions fully in a later deposition.

Given that the prospective witnesses need to be examined regarding this critical issue, it is also appropriate to have the witnesses answer whether, at defendant's expense, they would be willing to come to the United States and testify at defendant's trial. The letter rogatory will be sent directly to the Supreme Court of Nigeria and the Federal High Court of Nigeria and will also be sent to the United States Department of State for transmittal to the appropriate Nigerian judicial authority. Sixty days will be allotted to complete this process, after which defendant's request for depositions will be examined in light of the responses received, if any. If no responses are received, the available information does not warrant authorizing Rule 15 depositions.

Foreign Evidence: DOJ and UBS ask Court to Postpone Hearing

Show down in Miami....... Update: The New York Times reports July 12, 009 that the DOJ and UBS seek a postponment of a hearing on Monday so that the parties can negotiate a settlement, without court intervention. The Department has suggested that if UBS does not comply, the US Government will consider this lack of cooperation as required in a separate civil suit. Could this lead to indictment of UBS? The Department of Justice has also suggested that UBS has not pointed to any examples of prosecution in Switzerland, when a bank has complied with a foreign court order.

"The Justice Department also ramped up its pressure on UBS on Sunday, saying in a separate filing that it would consider imposing monetary sanctions of an unspecified size on the bank if it ultimately failed to turn over the names upon a judge’s order. In the same memorandum, the Justice Department also said that failure to comply with an order to release the names might put the bank in breach of its $780 million settlement — a breach that could pave the way for prosecutors to indict UBS.

While the settlement gives UBS the legal right to contest the names summons, a process that could take years, it also gives federal prosecutors the right to indict UBS, after consulting the Federal Reserve, if UBS has exhausted its appeals and still refuses to turn over the names.
The Swiss government said last week that it would block UBS from turning over the names, but the Justice Department memorandum said that “a blocking order could impact the deferred prosecution agreement entered into by UBS with the support and assistance of the Swiss government.”

Previously Posted:

The New York Times reported on June 23, 2009 that the DOJ intends to proceed in its efforts to secure information on UBS account holders: "The Justice Department issued a statement on Tuesday denying a New York Times report that it was considering dropping a closely watched lawsuit against the Swiss bank UBS, seeking the names of 52,000 wealthy American clients suspected of offshore tax evasion."
* * * * *
Previously posted, June 1, 2009: The federal judge handling United States v UBS has ordered Eric Holder to respond to the Swiss Government claims that the action to enforce IRS tax payer summons to UBS undermines the Tax Treaty between Switzerland and the United States. Bloomberg. The Swiss government appears to have drawn the line against using the Courts to obtain foreign evidence rather than treaty provisions.

* * * * *
"May 7 (Bloomberg) -- A federal judge ordered Attorney General Eric Holder to “respond directly” to claims by the Swiss government that a U.S. lawsuit seeking the names of 52,000 UBS AG account holders would jeopardize a new tax treaty.

U.S. District Judge Alan Gold in Miami made the comments today in a telephone conference on a U.S. lawsuit against UBS, the largest Swiss bank. In a court filing and a diplomatic note last week, the Swiss government said the lawsuit would “seriously jeopardize” efforts to revise a 1996 tax treaty. "

Conducting Business Abroad: China Accuses Four in Australia-Anglo Endeavor with Spying

Business men and women are at risk when negotiating or engaging in commercial transactions, as evidenced by the case of the four employees of an Ango-Australian company, detained in China on accusations of spying. According to the New York Times, the parent company has had no contact with their employees since the accusation. The Chinese government has accused the four of obtaining secret government information during negotiations, and there is no further detail as to the nature of the information.

" Stern Hu, Rio Tinto’s top iron ore negotiator with China and an Australian citizen, was detained in Shanghai on Sunday on suspicion of spying, stealing state secrets and causing economic harm to the nation, in a case that has rocked the Chinese steel and iron industry. Three other Chinese employees who had some role in Rio Tinto’s iron ore negotiations with Chinese steel mills have also been detained and accused of violating China’s state secrets law.

Now, several other executives in the iron ore trade in China are also under investigation and at least one Chinese executive has been detained, possibly for passing state secrets to the Rio Tinto employees, according to China’s state-run news media and people familiar with the investigation."

Foreign Corrupt Practices Act: American Bourke Convicted

Juror's Views of the Case Against Bourke, see Courthouse News.

"Although Bourke had read the Fortune article about Kozeny's Czech adventure at the time, he decided to invest anyway in Kozeny's scheme to privatize Azerbaijan's state-run oil industry SOCAR by buying vouchers from the country's citizens - and paying off senior officials, all the way up to then-Azeri President Haydar Aliyev. Throughout the trial, Bourke had maintained that he was just one of the many investors in Kozeny's failed scheme that lost his money when it derailed two years later and said he was ignorant of the bribes. However, jurors found there were too many "red flags" for Bourke not to have known."

Editor's Note: Frederic Bourke was convicted on July 10, 2009. New York Times reports:

"Frederic Bourke, a founder of the handbag maker Dooney & Bourke, was convicted Friday of conspiring to pay bribes to government leaders in Azerbaijan in a 1998 oil deal. The federal jury in Manhattan returned its verdict after a monthlong trial. Jurors found that Mr. Bourke conspired with a Czech expatriate, Viktor Kozeny, to pay bribes to the former president of Azerbaijan, Heydar Aliyev, and other leaders. The verdict is a victory for federal prosecutors as they step up enforcement of the Foreign Corrupt Practices Act, which bars payments to foreign officials. Few criminal cases under the law ever go to trial."

Previously posted:
The trial is underway in US District Court, New York. Co-defendant Czech national Viktor Kozeny is currently living in the Bahamas. The US request for Kozeny's extradition was rejected.

The allegations are that Frederic Bourke conspired with Kozeny and others to bribe government leaders in Azerbaijan in a bid to buy the state oil company. Bourke invested $8 million and brought his friend George Mitchell into the deal. Bourke's former Swiss attorney plead guilty and has testified for the prosecution.

Transnational Crime: DOJ Statement to Congress on Mexican Drug Crime Investigations

On July 9, 2009, the Department of Justice Lanny Breuer made a statement to Congress on Mexican drug cartels and United States law enforcement response. "The Rise of Mexican Drug Cartels and U.S. National Security".

"July 9, 2009, I want to share with you the Department’s strategy to systematically dismantle the Mexican drug cartels, which currently threaten the national security of our Mexican neighbors, pose an organized crime threat to the United States, and are responsible for the scourge of illicit drugs and accompanying violence in both countries. Let me begin by emphasizing the priority that this issue commands at the highest level of the Department’s leadership, including the Attorney General himself. Most recently, on June 5th, in Albuquerque, New Mexico, Attorney General Holder, Department of Homeland Security (DHS) Secretary Napolitano, and Office of National Drug Control Policy (ONDCP) Director Kerlikowske released President Obama’s National Southwest Border Counternarcotics Strategy (Strategy), designed to stem the flow of illegal drugs and their illicit proceeds across the Southwest Border and to reduce associated crime and violence in the region. "

Extradition: White collar crime extradition request to Fiji

A Fiji-born American l is pending extradition to the United States to face charges of money laundering, fraud, tax evasion and bankruptcy fraud, according to the Fiji Times . The charges are pending in a Nevada state court. Because Fiji only became a republic in 1987, treaty application and dual criminality issues are likely to be raised. The United States government has also sought Fiji mutual legal assistance in seizing properties of the defendant.

Geneva Convention: Noriega Petition's the United States Supreme Court

Update: Noriega has now petitioned the United States Supreme Court. July 9, 2009.
* * * *

The Eleventh Circuit rejected Manuel Noriega's claim that the United States was required to return Noriega to Panama at the conclusion of his sentence. Noriega has been certified for extradition to France.


Noriega v Pastrana, April 8, 2009, "Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or “Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention.

We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention. "

See Editor's interview of Jon May regarding the issues in the Noriega case.

Foreign Evidence and Brady: USA v Fernandez

One of our favorite cases is a case from the Eleventh Circuit, USA v Jose Fernandez, 136 F3d 1434 (11th. Cir. 1998). The defendant claimed that the Government had failed to disclose exculpatory evidence about the CIA's possible involvement in criminal activity related to the offense conduct alleged. The trial court denied the defendant's motion for new trial, and the Appellate court remanded for an evidentiary hearing.

"The government responds that Fernandez has concocted a far-fetched, imaginative theory to justify a retrial. It is worth noting, however, that the government does not deny the essential veracity of these news reports which are, by themselves, extraordinary and troubling. Although the government presented a formidable case against Fernandez at trial, it was based almost exclusively on the testimony of co-conspirators. While the uncorroborated testimony of co-conspirators can be sufficient to support a conviction, see United States v. Broadwell, 870 F.2d 594, 601 (11th Cir. 1989), our inquiry at this stage is whether evidence of the CIA’s possible link to the very drug shipments at issue in this case either reasonably might have affected the outcome of the proceeding or, in the alternative, would likely produce a different result if the case were retried. In our view, the district court too easily brushed aside the possible impact that these rather sensational allegations might have had on Fernandez’ case. Fernandez tried to establish that, due to the overall corruption in the VNG and possibly the DEA, other possible “tipsters” existed, but his case was vulnerable -- if not thoroughly implausible -- without the various bits and pieces of information needed to create a coherent alternate theory of the case.

Much of the information that Fernandez did obtain during the trial came from news reports that were never officially corroborated by the government; conversations regarding the veracity and potential implications of these news reports, moreover, consistently were held outside the presence of both the defendant and his attorney. At this stage, it is impossible to discern whether the addition of evidence of a possible CIA-link to this case would have completed the puzzle and thereby created for the jury reasonable doubt or whether, as the district court determined, the evidence was merely cumulative. In light of the fact that the government’s case against Fernandez was based almost exclusively on the testimony of co-defendants, however, and because the allegations potentially implicating the CIA are responsive directly to the defense that Fernandez attempted to present, we conclude that these allegations are, at the very least, significant enough to permi Fernandez to present his case at a hearing."