Vol. 14, Nos. 26 & 27
Covering Cases Published in the Advance Sheets through July 2, 2007
Note: The Visitor's Edition of Punch & Jurists is an abbreviated version of the full Member's Edition which is available by subscription only. It does not contain all of the case summaries included in the Member's Edition or most of the links to the cases, articles and briefs cited.

The Extraterritorial Reach of U.S. Criminal Statutes - Different Views Under Different Statutes

Remedying Government Deception - Two Radically Different Views

The Admissibility of 911 Calls and Other "Declarant Unavailable" Statements at Trial

U.S. v. Lopez-Vanegas, No. 05-15021 (11th Cir. July 26, 2007) (Judge Walter)

The defendants in this case, Doris Salazar ("Salazar") and Ivan Lopez-Vanegas ("Lopez") appealed their convictions on one count each of conspiracy to possess with the intent to distribute five kilograms or more of a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii), and 21 U.S.C. § 846. The Government alleged that Salazar and Lopez brokered a deal between a Colombian drug trafficking organization and a Saudi Arabian Prince (the "Prince"), to transport large amounts of cocaine on the Prince's airplane from Caracas, Venezuela to Paris, France, for distribution in Europe.

On appeal, Lopez and Salazar argued, inter alia, an agreement to ship cocaine from Colombia to Venezuela to Saudi Arabia to France for distribution throughout Europe does not violate 21 U.S.C. § 846 because the object of the conspiracy -- the possession and distribution of cocaine on foreign soil -- is not a violation of 21 U.S.C. § 841(a)(1). Accordingly, they contended that the district court should have granted defendants' motion for acquittal at the close of the Government's case.

The Government, in turn, contended that the defendants' conduct was encompassed by the prohibitions of 21 U.S.C. § 846 and § 841(a)(1), forbidding conspiracy to possess with intent to distribute cocaine. The Government did not allege that any of the drugs involved in this case were distributed in the United States or that there was any agreement to do so. Instead, it argued that the conspirators had met in Miami, FL on numerous occasions to help organize the conspiracy and make plans for its operations; and it relied “solely” upon that "domestic conspiratorial conduct" of Lopez and Salazar in Miami to support its argument that the district court had jurisdiction over the conspiracy charge for which they were convicted.

In addressing those conflicting positions, the Court stated: “[T]he issue of whether discussions occurring in the United States related to possession of controlled substances outside of the United States with intent to distribute those substances outside of the United States is a crime in the United States is res nova in the Eleventh Circuit.” In addition, for the purposes of the motion before it, the Court assumed “that all facts alleged by the Government are uncontested” and that the defendants did in fact have a number of meetings in Miami with the other conspirators to plan the delivery of the drugs to the Prince for distribution in Europe.

Ultimately, the three judge panel in this case unanimously agreed that the Federal criminal statutes that make it a crime to conspire to possess with intent to distribute cocaine do not apply extraterritorially. Writing for the Court, Judge Walter explained the rationale for the Court’s decision as follows:

“A silent statute is presumed to apply only domestically. (Citing Small v. U.S., 544 U.S. 385, 388 (2005)). Such statutes may be given extraterritorial application if the nature of the law permits it and Congress intends it. ‘Absent an express intention on the face of the statutes to do so, the exercise of that power may be inferred from the nature of the offenses and Congress' other legislative efforts to eliminate the type of crime involved.’ . . .

“Our case law, and that of our sister circuits, has applied § 841(a)(1) and § 846 extraterritorially in certain circumstances, even though Congress has not specifically expressed its intent on the matter. However, in each of those cases some other nexus to the United States allowed for extraterritorial application of § 841(a)(1): defendants either possessed or conspired to possess controlled substances within the United States, or intended to distribute controlled substances within the United States. . . .

“Furthermore, there can be no violation of § 846 if the object of the conspiracy is not a violation of the substantive offense. 21 U.S.C. § 846 ('Any person who . . . conspires to commit any offense defined in this subchapter . . . .'). Accordingly, where, as here, the object of the conspiracy was to possess controlled substances outside the United States with the intent to distribute outside the United States, there is no violation of § 841(a)(1) or § 846.

Then, applying those principles to the facts of this case, the Court concluded:

"Congress has not stated its intent to reach discussions held in the United States in furtherance of a conspiracy to possess controlled substances outside the territorial jurisdiction of the United States, with intent to distribute those controlled substances outside of the territorial jurisdiction of the United States."

Thus, because the Court held that 21 U.S.C. §§ 841 and 846 do not apply extraterritorially, it concluded that the conduct of Lopez and Salazar did not violate those statutes; and therefore the judgments of conviction and sentences issued by the district court had to be vacated.

U.S. v. Frank, No. 04-20778-CR-Jordan (S.D.Fla. May 4, 2007) (Judge Jordan)

Kent Frank, an American citizen, was indicted for traveling to Cambodia on five occasions to engage in illicit sexual conduct in that country with various females under the age of 18. The charges were based on a violation of 18 U.S.C. § 2423(c), which is entitled “Engaging in illicit sexual conduct in foreign places”and which provides as follows:

“Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

Frank moved to dismiss his indictment on a number of grounds. Principally he argued that Congress, in enacting § 2423(c), exceeded its powers under the Foreign Commerce Clause, U.S. Const. Art. I, § 8, cl. 3; but he also raised a number of other challenges, including the contentions that the exercise of extra-territorial jurisdiction violates precepts of international law and § 2423(c), as applied, violates the Due Process Clause of the Fifth Amendment. Judge Jordan rejected all of Frank’s claims.

In responding to Frank’s principal claim, Judge Jordan noted that the Ninth Circuit had recently rejected the claim that Congress had exceeded its powers under the Foreign Commerce Clause when it enacted § 2423(c), citing U.S. v. Clark, 435 F.3d 1100 (9th Cir. Jan. 25, 2006) (P&J, 01/02/06). However, he stated that it was unnecessary for him to decide whether § 2423(c) is a constitutional exercise by Congress of its Foreign Commerce Clause powers because “Congress had the authority to enact § 2423(c) under the Necessary and Proper Clause to implement a treaty which the Senate had ratified.” (Id., at 1355).

The treaty in question is the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (the "Optional Protocol"), (S. Treaty Doc. No. 106-37), which the Senate ratified in 2002 and which was entered into force in January of 2003. One of the statutes that Congress enacted to implement the Optional Protocol was § 2423(c).

Judge Jordan concluded that § 2423(c) “reasonably implements” the Optional Protocol and it bears a rational relationship to that Protocol. He therefore concluded that “the statute is therefore necessary and proper under the framework of M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and its progeny.” (Id., at 1358). He also observed: “Extra-territorial criminal liability is one of the options allowed by the Optional Protocol, and § 2423(c) has extra-territorial application.” (Id.)

Judge Jordan also rejected Frank’s contention that the exercise of extra-territorial jurisdiction violates precepts of international law. He stated: “That assertion, however, is foreclosed by binding precedent. Congress has the power to control (and punish) the conduct of American citizens abroad. International law, moreover, generally allows a country to exert extra-territorial jurisdiction over its own citizens, as long as the exercise of such jurisdiction is not unreasonable.” (Id., at 1359) (Internal citations omitted).

Finally, Judge Jordan rejected Frank’s claim that § 2423(c) violates the substantive component of the Due Process Clause, stating: “Unfortunately for Mr. Frank, under substantive due process jurisprudence, the applicable standard is whether the legislation is ‘rationally related to a lawful government purpose.’ Here, the prevention of child prostitution (domestically and/or internationally) is certainly a legitimate government goal, and given the international aspects of child sex tourism, the application of § 2423(c) to the conduct of American citizens abroad is rationally related to achievement of that goal.” (Id., at 1360).

U.S. v. Alverez-Tejeida, 06-30289 (9th Cir., June 8, 2007) (Judge Kozinski)

In this case, the DEA pushed the concepts of deception, trickery and chicanery to their finite extremes - and then some. Judge Kozinski described how the DEA orchestrated its elaborate ruse with these words:

“Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light. As the light turned green, the car in front of them lurched forward, then stalled. Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper. As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving. The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing. Just then, out of nowhere, someone snuck into their car and drove off with it. As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring. The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

“The whole incident was staged. DEA agents learned that one of the leaders of a drug conspiracy was dealing drugs out of his car and deduced from several intercepted calls and direct surveillance that Alverez-Tejeda, one of the conspiracy’s subordinates, was using the leader’s car to transport illicit drugs. The agents decided to stage an accident/theft/chase in order to seize the drugs without tipping off the conspirators. Every character in the incident, other than Alverez-Tejeda and his girlfriend, was either a DEA agent or a cooperating police officer.

“Having seized the car through this ruse, the agents obtained a search warrant and discovered cocaine and methamphetamine inside, as well as property belonging to Alverez-Tejeda and his girlfriend. The government indicted Alverez-Tejeda but the district court found that the method of seizure violated the Fourth Amendment and suppressed the evidence obtained from the vehicle. The government filed an interlocutory appeal.”

As a preliminary matter, one is forced to wonder: If the DEA had all that time to plan its elaborate, Academy Award winning scheme, and assemble the large team of wannabe actors needed to pull it off, why couldn’t it have gone to the courts in the first place to get a warrant to seize and search the car?

In reversing the district court’s ruling, the Ninth Circuit ducked that rather obvious question. Instead, Judge Kozinski wrote: “If agents have probable cause to believe that a car is or has been used for carrying contraband, they may summarily seize it pursuant to the federal forfeiture statutes. . . . The only issue in doubt is whether [the DEA’s] unorthodox method of seizing the car was constitutional.”

And, on that limited issue, the Court concluded that the staged collision met the constitutional standards mandated by the Fourth Amendment because “the use of force and potential for physical harm were within reasonable bounds.” The Court also stated that “the benchmark for the Fourth Amendment is reasonableness, which requires us to weigh the government's justification for its actions against the intrusion into the defendant's interests.” That standard seems to imply that there are no real limits to the types of trickery, deception, or even force, that law enforcement agents may use since their actions will be judged by an “end justifies the means standard” - if the quantity of drugs is big enough, almost anything will be approved as reasonable.

To avoid giving the impression that it was giving a carte blanche to all forms of Government deception, the Court did issue a mild warning that there may come a time when it might actually clamp down on some (unspecified) types of Government trickery and force when conducting seizures. Thus, it stated:

“While we don't generally second-guess the government's use of stealth to ferret out criminal activity, we take a closer look when agents identify themselves as government officials but mislead suspects as to their purpose and authority. This is because people ‘should be able to rely on [the] representations" of government officials.’ If people can't trust the representations of government officials, the phrase ‘I'm from the government and I'm here to help’ will become even more terrifying.” (Internal citations omitted).

U.S. v. Carriles, No. EP-07-CR-00087-KP (W.D.Tex. May 8, 2007) (Judge Cardone)

The defendant in this case, Luis Posada Carriles, a 79-year old Cuban national, was indicted for making false statements in connection with his application for U.S. citizenship. He moved to suppress various statements and evidence against him on the grounds of Government deception, entrapment and manipulation of the evidence. In a remarkable and unusually strong decision, Judge Kathleen Cardone, a recent appointee of President Bush, granted Carriles’ motion to suppress the evidence against him and she dismissed the indictment against him after bluntly concluding:

“In this instant case, the evidence is overwhelming that the Government improperly manipulated the administration of criminal justice in order to secure a criminal indictment against Defendant.” (Id., at 619).

At the time of his indictment, Carriles was well known to the U.S. Government. From 1960 to 1964 he had served in the U.S. Army and later he “was involved with the Central Intelligence Agency.” (Id., at 601). He was a lifelong opponent of Fidel Castro; and he had been investigated in connection with a 2000 plot to assassinate Castro. Judge Cardone firmly concluded that, by the time Carriles was scheduled for a naturalization interview in April 2006, “federal agents had already assembled a significant dossier against him.” (Id., at 601-02).

While the history and background of Carriles’ activities are long and complex and involved the use of several aliases and false passports, suffice it to say that Carriles charged that the Government granted him a naturalization interview for the sole purpose of gathering information for use in a criminal prosecution. The Government responded that it did not “entrap” Carriles; but that it has no duty to “lay its cards on the table” during a naturalization interview. (Id., at 614-15).

After reviewing all of the evidence, and after a detailed analysis of a number of strong and noteworthy cases in which various courts granted remedies based on Government deception, Judge Cardone rejected the Government’s protestations of good faith by emphatically concluding that “the entire [naturalization] interview was . . . a pretext for a criminal investigation.” (Id., at 619). She then continued:

“This Court finds that the Government engaged in fraud, deceit, and trickery when it misrepresented to Defendant that the purpose of asking him such extensive questions about his means of entry into the United States, his conduct in Panama and Venezuela, and his use of various aliases and passports was merely to 'clarify the record.'. . . Furthermore, throughout the interview, [Carriles' attorney] attempted to advise Defendant to exercise his Fifth Amendment rights, yet invariably [the Government agents who were present] would retort 'this is just for purposes of the record.' In addition to engaging in fraud, deceit, and trickery, this Court finds the Government's tactics in this case are so grossly shocking and so outrageous as to violate the universal sense of justice. As a result, this Court is left with no choice but to dismiss the indictment.” (Id., at 620).

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