Law Firm of
Linda Friedman Ramirez P.A.

Linda Friedman Ramirez at the Pan American Union, 1976 

FOREIGN CORRUPT PRACTICES ACT

Court declines to rule pre-trial to prohibit use of classified materials by defense. Allegation of bribes to Kazakstan government by CEO of New York merchant bank. 

United States v. Giffen, 98 A.F.T.R.2d (RIA) 8124  (2d. Cir. 2007)

INTERNATIONAL TAX ISSUES

Tax Havens & Abuses The Enablers, The Tools and Secrecy

INTERNATIONAL HUMAN RIGHTS TRIALS

 Link  to up-to-date information on individual trials. 

GLOSSARY

Mutual Legal Assistance Treaties, or MLAT's

     (A list of Bilateral Mutual Legal Assistance Treaties can be found at the  Department of State webpage.

"Traditionally, evidence sought by a foreign government had to be obtained through a process whereby a written request known as a "letter rogatory" was sent from the court of one country to the court of another asking the receiving court to provide the assistance. A federal statute authorizes federal district courts in this country to entertain such requests and provides that "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." 28 USC 1782  Not only can a foreign tribunal bring a request in the form of a "letter rogatory," but section 1782 has been amended to also allow similar requests for assistance to be brought by "interested persons" including foreign governments in foreign investigations or proceedings and private litigants of a foreign proceeding. Requests for assistance initiated directly by an interested person rather than a foreign court are often referred to as "letters of request." Despite the apparent versatility of 28 USC 1782  law enforcement authorities found the statute to be an unattractive option in practice because it provided wide discretion in the district court to refuse the request and did not obligate other nations to return the favor that it grants. MLATs, on the other hand, have the desired quality of compulsion as they contractually obligate the two countries to provide to each other evidence and other forms of assistance needed in criminal cases while streamlining and enhancing the effectiveness of the process for obtaining needed evidence. This MLAT between the United States and Canada provides for a broad range of cooperation in criminal matters. "

Eleventh Circuit Court of Appeals, "In re Commissioner's Subpoenas"  325 F.3d 1287,  2003.

Do MLAT's provide an opportunity for Defendants to obtain evidence abroad?

Article 2 of the Inter-American Convention on Mutual Assistance in Criminal Matters states:

"This convention applies solely to the provision of mutual assistance among states parties. Its provisions shall not create any right on the part of any private person to obtain or exclude any evidence or to impede execution of any request for assistance."

INTERNATIONAL HUMAN RIGHTS ISSUES

Canadian Government Commission report Faults US for its Role in Torture of Canadian National:  Official Report  September 18, 2006.

RECENT CASE LAW OF INTEREST

Conviction of foreign national arrested in transit reversed due to lack of evidence of conspiracy

    The Defendant in United States of America v Arbane (April 2006) was detained while en route from Ecuador to Iran. Arbane had been acquitted of drug possession charges in Ecuador and had been deported to Iran. His plane stopped in Houston, where he was detained and transferred to the Southern District of Florida for prosecution. The Eleventh Circuit upheld the Court's jurisdiction as consistent with United States v Alvarez-Machain, that is, in spite of Arbane's detention outside the extradition process. The Court, however, reversed his conviction on the basis that  "the evidence is insufficient to demonstrate that anyone other than a governmental informant was involved with Arbane in an agreement to import drugs into the United States." 

Appeals court vacates conviction of 10 for violation of Maritime Drug Law Enforcement Act (MDLEA)

Court found error in United States v Perlaza, 439 F3d 1149 (9th Cir. March 2006), because Indictment did not allege or prove facts sufficient to fulfill the statutory requirments of 46 USC 1903.

Foreign witness testimony by television monitor at a trial in US District Court violates the Defendant's 6th Amendment.

   In United States of America v Yates  (February 2006), the Eleventh Circuit ruled that the testimony of two Government witnesses by means of a live, two-way video conference, violated the Defendant's 6th Amendment rights. The District Court had allowed the Government's Motion on the basis that the witnesses agreed to testify by video teleconference, but refused to travel to the United States

Americans  can be prosecuted for crimes committed outside the United States

     In United States of America  v Clark, (January 2006), the Ninth Circuit affirmed the conviction of an American who traveled to Cambodia and was accused of engageing in an illegal commercial sex act with a minor in violation of 18 USC 2423 (c). The Court considered a challenge based on international law, and stated that section 2423 (c) comports with the principles of international law, specifically the nationality principle. "The nationality principle permits a country to apply its statutes to extraterritorial acts of its own nationals."

Defendants convicted of Conspiracy to fraudulently issue Social Security numbers to foreign nationals,  also found to have violated immigration offense 8 USC 1324. statute.

United States of America v Ndiaye, 434 F3d 1270 (11th Cir. January 2006), the Court found that there was sufficient evidence that the defendant Sumbodo's assistance in helping obtain a social security card which the alien was not entitled to have, encouraged or induced him to reside in the United States in violation of 8 USC 1324 (a)(1)(A)(iv).

A foreign country's law must be considered in determining whether a violation of 18 USC 1956 has been committed.

     In USA v Lazarenko, (September 2003), the United States District Court for the Northern District of California determined that it would hold a hearing to determine the specific content of Ukranian law. In order to convict the defendant for having wired funds to the United States inviolation of the US anti-money laundering law, the government had to prove that the defendant's conduct violated the law of the Ukraine. 

Subpoena can be issued pursuant to Mutual Legal Assistance Treaty with Canadian pre-charge.

The Eleventh Circuit constured the Treaty to obligate both countries to execute requests for the issuance of subpoenas for purposes of compelling testimony in criminal investigations and to arrange for the taking of such testimony even prior to the actual initiation of formal charges. In re Commissioner's Subpoenas.

Defendant loses challenge to indictment argued based on violation of Statute of Limitations; Court finds SOL tolled by delay in foreign country's response to to Mutual Legal Assistance Treaty.

     In USA v Torres,(January 2003), the Eleventh Circuit determined that the delay by the Isle of Man in responding to the US Government's reques, tolled the SOL. Pursuant to 18 USC 3292, "upon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court before which the grand jury is impaneled to investigate the offense shall suspend the running of the statute of limitations for the offense if the court funds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country."

Violations of International Covenant on Civil and Political Rights do not result in dismissal.

In United States v Duarte ?Acero, 296 F3d 1277 (11th Cir. 2002), Defendant was convicted of conspiring to murder two DEA agents in Cartagena, Colombia. He was ultimately arrested in Venezuela, and then escorted to the border and released into the custody of the Colombian police. He was ultimately tried and convicted in Colombia.  The US tried to extradite Duarte-Acero, but the Colombian Supreme court denied extradition in part on the basis of double jeopardy. He was later tricked into traveling to Ecuador, where he was arrested by Ecuadorian police and the DEA. He requested to speak with the Colombian consul, but was ignored and flown to Florida, where he was later convicted.

Duarte Avero sought dismissal of his indictment on the basis that he was denied the right to speak with his consulate as guaranteed by Article 36 of the Vienna Conviction, and also because he was denied certain rights guaranteed under the International Covenant on Civil and Political Rights, and later for violation of double jeopardy under the ICCPR. The Court found in part that ?All of the violations (of the ICCPR) alleged by the Defendant occurred in Ecuador, not the United States and that the United States is not obligated to provide relief for alleged violations of the ICCPR committed by other nations. Also, that the ICCPR does not create judicially enforceable individual rights.