Viktor Bout: Brings Separate Action for Alleged Violations by US Government

The New York Times June 30, 2009 reports that Viktor Bout has brought a separate proceeding alleging that the US violated Thai law.

"The procedure could delay the extradition process and, if successful, result in criminal charges filed against three agents of the Drug Enforcement Administration who took part in Mr. Bout’s arrest, according to the lawyer, Chamroen Panompakakorn. Mr. Chamroen said Monday that American agents had violated Thai law by apprehending Mr. Bout on their own before calling the Thai police to arrest him. They were also carrying firearms in violation of Thai law, he said. They invaded a public place without a search warrant,” Mr. Chamroen said in an interview. “They have no power to do this.”

Foreign Business Records, 18 USC 3505, Certification

Will the new US Supreme Court case USA v Melendez-Diaz June 25, 2009, require a different result? Melendez-Diaz, 5-4 concludes that forensic lab reports cannot be admitted at trial without live testimony.

"The admission of the certificates violated petitioner’s SixthAmendment right to confront the witnesses against him. Pp. 3–23. (a) Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness isunavailable, the defendant had a prior opportunity for crossexamination. 541 U. S., at 54. The certificates here are affidavits, which fall within the "core class of testimonial statements" covered by the Confrontation Clause, id., at 51. "

Although the issue is relatively different, are not the certifications as to authenticity of foreign business records testimonial, in those cases in which a document or record is not otherwise self-authenticating?

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Previously posted:
A federal court judge in USA v Kos, W.D. NC, ruled November. 25, 2008, that the certification of foreign business records pursuant to 18 USC 3505 does not violate a defendant's right to confrontation or Crawford.

Ruling in favor of the government's motion in limine to admit foreign business records, (to admit the records), the Court referenced one decision, post- Crawford, addressing a Confrontation Clause challenge to the certification of foreign business records. "In United States v. Qualls, 553 F.Supp.2d 241, 245-46 (E.D.N.Y.2008), the district court concluded “that the authentication of foreign business records pursuant to § 3505 does not violate the Confrontation Clause.”

" Moreover, in complex cases such as this one, that involve the admission of business records from numerous sources, including foreign entities, a holding as Defendant suggests would dramatically decrease judicial efficiency at minimal or no gain to the truth-seeking process. This is particularly true in light of today's global economy and the facilitation of international financial transactions by the advent of modern technology such as the internet. The government would be required to call a live witness or to accompany the defendant on a deposition abroad to lay the foundation for the business records of each foreign entity it sought to introduce. Such procedures for admission of foundational evidence would swallow up the efficiency gained by the exception.

Certifications of foreign business records are not the sort of testimonial evidence the Confrontation Clause bars. To be sure, the custodians would reasonably expect that their certifications would be used prosecutorially. However, a “business record certification ... does not serve independently as evidence in th[e] case; rather, it serves merely to lay a foundation for the admission of business records.

If the business records themselves are non-testimonial, see Crawford, 541 U.S. at 56; United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir.2008), it seems illogical to conclude that the document which authenticates them is testimonial. Thus, the court holds that the Confrontation Clause does not bar admission of the foreign business records certifications at issue here and the foreign business records.

Because the court concludes that the Confrontation Clause does not apply to the certifications here, the court is not required to determine that the certifications (or the underlying records themselves) bear sufficient indicia of reliability. Even if reliability was required, the court would not find it lacking based on the certifications alone.

Transnational Crime: GAO Report on Gun Smuggling to Mexico

The GAO has issued a report critical of the lack of coordination in prevent gun smuggling from the US to Mexico. June 18, 2009. Of guns seized and traced, 87% of guns have come from the United States. According to the St. Petersburg Times, June 18, 2009, "A report just released by the Government Accountability Office, the investigative arm of Congress, faults Immigration and Customs Enforcement and the Bureau of Alcohol, Tobacco, Firearms and Explosives, for not coordinating their efforts against weapons being smuggled into Mexico. This is more than your average turf war. Last year more than 7,000 Mexicans died in drug-related crime, most committed with U.S.-supplied weapons. The GAO found several examples of miscommunication between ICE and ATF. "

Extradition: UK authorizes Extradition after Conviction in Abstenia

The British High Court has upheld the extradition to Cyprus for two cousins convicted by the Cyprus Supreme Court in abstentia, and sentenced to three years prison. The trial judge had acquitted the defendants , but the Cyprus Supreme Court reversed and sentenced the defendants. Their counsel had argued that the conviction in abstentia had been denied a fair trial under the European Convention on Human Rights, Article 6. However, " Lord Justice Maurice Kay and Mr Justice Collins, sitting in London, ruled it was impossible to say the Cypriot trial process as a whole had been flawed and violated their right to a fair trial." Telegraph UK.

International Export Crimes: 7th Circuit Reverses Conviction

The Seventh Circuit reversed the conviction of USA v Pulungan, in part because the Government failed to prove that Doli Pulungan knew the rifescopes were manufactured to military specifications. June 15, 2009.

Federal law prohibits the export of “defense articles” without a license. 22 U.S.C. §2778. A efense article” is any item on the United States Munitions List, which §2778(a) authorizes the President to promulgate. The President has delegated that power to the State Department’s Directorate of Defense Trade Controls. The Munitions List includes “[r]iflescopes manufactured to military specifications.” 22 C.F.R. §121.1 Category 1(f). Designations are not subject to judicial review. 22 U.S.C. §2778(h).

Doli Pulungan tried in 2007 to export 100 Leupold Mark 4 CQ/T riflescopes ® ® (made in Oregon by Leupold & Stevens, Inc.). He planned to transship through Saudi Arabia to Indonesia in order to conceal the destination, because his clients told him that the United States had an embargo on military exports to Indonesia. There had been such an embargo between 1999 and 2005, but there was none when Pulungan tried to acquire and export the ‘scopes. He was charged with violation of §2778(c), however, on the theory that the Leupold Mark 4 CQ/T riflescope is “manufactured to military specifications.” A jury found him guilty of attempting to export defense articles without a license, and the judge sentenced him to 48 months’ imprisonment.

Section 2778(c) makes it a crime to violate (or attempt to violate) any part of §2778 “willfully”. The parties agree that “willfully” means with knowledge that a license is required. Pulungan concedes that he attempted to acquire and export Leupold Mark 4 CQ/T riflescopes to Indonesia without a license. But he contends that the prosecution did not prove that these scopes are “manufactured to military specifications”—and that, even if they are so manufactured, he did not know it and therefore lacked the required mental state.

What makes the case particularly interesting is the Court's strong position on the Government's burden of proof:

Pulungan’s lawyer said at oral argument that he had not asked for a hearing under this statute. Nor did the prosecutor offer one. Both took an all-or-nothing approach: Pulungan demanded a public jury trial, and the prosecutor total secrecy. We need not decide whether either litigant has waived or forfeited its position by disdaining the statutory middle ground—or whether any error is harmless (Pulungan has never argued that the Mark 4 CQ/T ‘scope is not actually a mil-spec product and didn’t ask for an expert to explore that subject)—because Pulungan is entitled to prevail even if the criminal-justice system must proceed on the assumption that the Mark 4 Q/T riflescope is a “defense article.” It is not enough for the Leupold Mark 4 CQ/T riflescope to be a “defense article.” Pulungan cannot be convicted unless he knew that it is one, and that licenses re necessary to export them.

Foreign Intelligence Surveillance Act: District Court Denies Motion to Suppress

A trial court has denied the defendant's motion to supress the search of the defendant's lap top, after agents secretly created a mirrored hard drive. United States v Gowadia, (D. Hawaii 2009)

The criteria for the FISA court to issue a search can be found at 50 USC 1804.

The facts: "Defendant Noshir S. Gowadia boarded a flight from Singapore to the United States on April 29, 2004. Upon his return to the United States, law enforcement agents conducted a search pursuant to the Foreign Intelligence Surveillance Act on Defendant's carry-on luggage, which included his laptop computer and other electronic media. Law enforcement agents created a mirrored hard drive of Defendant's laptop computer for subsequent analysis. The other contents of Defendant's carry-on luggage, which included hand-written notes, articles, and brochures regarding missile technology, were also examined."

The Court considered exparte submissions of the Government in opposition, and denied the defendant's motion. "Defendant now moves to suppress all evidence derived from that search. Defendant alleges that the evidence obtained by the Government was unlawfully acquired, the physical search was not made in conformity with an order of authorization or approval, and the search may have violated Defendant's Fourth and Fifth Amendment Rights under the United States Constitution. Defendant Noshir S. Gowadia's Motion to Suppress Evidence Obtained or Derived from FISA Search is denied. "

Colombia: International Law Society Lawyers Delegation to Colombia

Reprinted: International Lawyers Delegation to Colombia, Report 6 May 2009, into the daily threats to the lives of Colombian human rights lawyers.

More than 400 Colombian lawyers have been murdered since 1991. No-one has been prosecuted for these killings. The report from an international delegation – the Caravana Internacional de Juristas - documents the threats, assaults, disappearances and killings of human rights advocates and the failure of the Colombian authorities to investigate. Last year 42 UK lawyers, facilitated by the Law Society, participated in a fact finding mission to Colombia to investigate the situation of human rights lawyers in the country. The multinational Caravana comprised approximately 70 lawyers from around the world to provide a human shield to lawyers at risk and to make representations to the authorities and fact finding on what can be done to support and protect Colombian human rights in the future. " Read the report in English or Read the report in Spanish

Extradition: New Bilateral Treaties with EU Members and US

On June 10, 2009, Secretary of State Hillary Rodham Clinton and Foreign Minister Peter Balazs of Hungary signed the Protocols of Exchange of Instruments of Ratification for 2005 protocols to the bilateral Extradition and Mutual Legal Assistance Treaties between Hungary and the United States.

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On June 5, 2009, Secretary of State Hillary Clinton and Foreign Minister Luis Amado of Portugal signed the Protocols of Exchange of Instruments of Ratification of our bilateral Extradition and Mutual Legal Assistance Treaties with Portugal.

In 2003, the United States and the European Union signed agreements modernizing transatlantic law enforcement cooperation in the areas of extradition and mutual legal assistance (i.e., obtaining evidence for judicial proceedings).

The United States subsequently signed bilateral instruments with all EU member states to effect the changes agreed with the EU itself. In the fall of 2008, the U.S. Senate gave advice and consent to, and the President ratified, the entire set of agreements. The Republic of Portugal has completed its domestic approval procedures, so an exchange of instruments of ratification – the final bilateral step in the process – now may take place. Fifteen such exchanges of instruments of ratification with other EU member states have occurred in the last several weeks.



Actual entry into force of the agreements with Portugal, however, can only happen after the umbrella agreements with the EU enter into force, a step awaiting action by parliaments in two EU member states.

Terrorism Trials: Italian Constitutional Court Rules Evidence Inadmissable in Trial of CIA Operatives

The Italian Constitutional Court has ruled that certain evidence are state secrets and cannot be used against the defendants accused of kidnapping Abu Omar from Italy. Omar was taken to Egypt where he was tortured. New York Times, March 11, 2009.

In a decision that seriously weakened the most high-profile prosecution in Europe involving the seizure of terrorism suspects, Italy's highest court ruled Wednesday that Italian prosecutors had violated state secrecy in their case against American and Italian intelligence operatives.

The decision by the Constitutional Court was a blow to a case of extreme political delicacy between Italy and the United States, in which 25 operatives from the Central Intelligence Agency, an American Air Force colonel and several Italian intelligence officials are charged with the seizure of an Egyptian terrorism suspect in 2003.

The Americans are being tried in absentia. The ruling did not throw out the original indictments, but it deemed inadmissible much of the evidence on which the case had been built, including material seized from Italian and American intelligence operatives. The lead prosecutor said he intended to move forward with the trial, which began in 2007 in Milan.

Extraterritorial Application of Law: 11th Circuit Affirms for 18 USC 2251

In United States v Kapordelis, June 1, 2009, the 11th Circuit rejected challenges to the Court's jurisdiction for conduct, which occurred outside the United States.

"At the time of his arrest in 2004, Defendant-Appellant Gregory C. Kapordelis (“Defendant” or “Kapordelis”) was an anesthesiologist who practiced medicine and had a home in Gainesville, Georgia. His sexual exploits with underage boys, however, took him far from Gainesville, across state lines and around the world. Evidence of his globe-spanning exploits, including the sexually
explicit photographs of boys that Defendant made as souvenirs during his travels, and Kapordelis’s large collection of child pornography collected from other sources ultimately led to Defendant’s indictment and conviction for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252A(a)(2)(A), and 2252A(a)(5)(B). Defendant appeals his conviction and his 420-month sentence. "


"Section 2251(a) does not explicitly prohibit conduct outside of the United States, but neither is its application limited to instances where the wrongdoer commits the entire violation within the territory of the United States. Rather, the statute is part of a comprehensive statutory scheme to eradicate sexual exploitation of children, see 18 U.S.C. §§ 2241-2257, in which Congress has outlawed the transportation, mailing, and receipt of child pornography. See United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). “Punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably be expected to be transported in interstate or foreign commerce is an important enforcement tool.”


Thus, we conclude that Congress intended to reach extraterritorial acts, such as those of Kapordelis, that otherwise satisfy the statutory elements of 18 U.S.C. § 2251(a) if they were produced using equipment that had traveled into or out of the United States, if the visual depictions were imported or transmitted into the United States, or if the defendant believed or had reason to believe that they would be. The district court did not err when it denied Defendant’s motion to dismiss Count 1 on these grounds, and its decision shall be affirmed.

Foreign Evidence: Swiss Government Opposes Enforcement of John Doe Summons

The US Government petitioned for the enforcement of John Doe Summons, and UBS Bank of Switzerland has responded in opposition. UBS brief in opposition claims that there is clash between US laws and laws of Switzerland. The Government of Switzerland has filed an amicus brief in support of UBS position.


"I. The U.S. Government’s Attempt To Obtain Information From Switzerland Through The Summons Is Inconsistent With The Tax Treaty. The rules and procedures set out in Article 26 of the Tax Treaty provide the legal basis for Switzerland to exchange information concerning tax issues with the United States. In return, the United States is under an international obligation to respect Article 26 in seeking to obtain information from Switzerland. As explained below, the IRS’s attempt to evade Article 26 through use of the summons is inconsistent with the treaty.

The basic rules for interpreting treaties are set out in the Vienna Convention on the Law of Treaties of 23 May 1969 (“Vienna Convention”). Article 31 of the Vienna Convention provides that “[a] treaty shall be interpreted in good faith, in accordance with the ordinary meaning to be given the terms of the treaty in their context and in the light of its object and purpose.” The Supreme Court has held similarly that “[t]he clear import of treaty language controls unless 'application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.’” Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (quoting Maximov v. United States, 373 U.S. 49, 54 (1963)).
The Supreme Court has also affirmed that “[n]ontextual sources … often assist us in ‘giving effect to the intent of the Treaty parties’.” United States v. Stuart, 489 U.S. 353, 366 (1989) (quoting Sumitomo, 457 U.S. at 185). In the Stuart case, which involved interpretation of the U.S.-Canada double taxation treaty, the Supreme Court stated that “a treaty should generally be ‘construe[d] . . . liberally to give effect to the purpose which animates it. …’” Stuart, 489 U.S. at 368. Of course, a treaty should not be interpreted liberally only when it is to the benefit of the U.S. Government to do so.


Vienna Convention Article 26 states that a treaty “is binding upon the parties to it and must be performed by them in good faith,” a principle commonly referred to as pacta sunt servanda. The International Court of Justice has commented on this principle as follows: Article 26 combines two elements, which are of equal importance. It provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” This latter element, in the Court's view, implies that, in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.

Importantly, this requirement of good faith requires that a party to a treaty refrain from acts calculated to frustrate the purpose of the treaty. Article 26 of the Tax Treaty provides specific rules governing the exchange of information between Switzerland and the United States. According to these rules, the competent authorities of the countries are to exchange information as is necessary for carrying out the provisions of the Tax Treaty and to prevent tax fraud. Article 26 also provides assurances against unauthorized disclosures.

By proceeding unilaterally outside of the terms of the Tax Treaty and avoiding the established intergovernmental procedures for the exchange of information, the U.S. Government would frustrate the fundamental purposes of the treaty and therefore violate it. More specifically, the treaty’s standards and procedures for the exchange of information would become meaningless if a Party to the treaty pursued alternative means of obtaining information from the other.

Enforcement of the summons therefore would undermine the implementation of the treaty and be contrary to international law. The U.S. Government of course had the authority to withdraw from the Tax Treaty, but it has not done so. The treaty therefore remains valid and binding under both international and U.S. law. The Government of Switzerland respectfully submits that this Court should not allow itself to be used as an instrument for carrying out the breach proposed by the IRS.

II. Compliance With The Summons Would Directly Violate Swiss Law

As discussed above, Switzerland’s laws prohibit the release of confidential information to foreign governments when the request has not been made through authorized intergovernmental channels. If the Court were to order UBS to produce evidence from Switzerland, and backed that order with coercive powers, the Court would be substituting its own authority for that of the ompetent Swiss authorities, and therefore would violate Swiss sovereignty and international law. This violation of sovereignty would be compounded because Swiss law specifically prohibits release of the information. In particular, if UBS were to comply with the summons, it would directly violate Articles 27137 and 273 of the Swiss Criminal Code and Article 47 of the Federal
Act on Banks and Savings Banks.

In this regard, Article 26(3) of the Tax Treaty states: In no case shall the provisions of this Article be construed so as to impose upon either of the Contracting States the obligation to carry out administrative measures at variance with the regulations and practice of either Contracting State or which would be contrary to its sovereignty, security or public policy or to supply particulars which are not procurable under its own legislation or that of the state making application.

The U.S. Government therefore agreed that the Government of Switzerland was not obligated to take actions contrary to its own sovereignty or to supply information not procurable under its own legislation. By implication, the U.S. Government acknowledged that it would respect Swiss sovereignty, and that the Government of Switzerland was not expected to stand by passively while the U.S. Government directed a Swiss entity to violate Swiss law. That enforcement of the summons would violate Swiss law by itself provides strong grounds for this Court to deny enforcement, or otherwise to decline to impose coercive sanctions on UBS.