Representing Foreign Nationals I. Jurisdiction II. Consular assistance III. Interpreters and Language Issues IV. Immigration Consequences V. Foreign Evidence and Investigation VI. Cultural Defenses VII. Sentencing
Who are these clients? Clients extradited to the US (fed & state) • Lengthy multi-national investigations • Arrested on vessels in international waters • Murder, other serious offenses Clients charged in state & fed court all offenses Clients arrested for extradition from the US
II. Jurisdiction The Government may be relying on federal statutes which provide extraterritorial jurisdiction Examples include 18 U.S.C. §§ 90, 1837; 18 U.S.C. § 1119, 18 U.S.C. § 2244 (a)(3); 18 U.S.C. § 2332; and 18 U.S.C. § 2423. and the Maritime Drug Law Enforcement Act, used to prosecute foreign nationals arrested on vessels in international waters
United States v. Zakharov, 468 F.3d 1171 (9th.2006) Defendant was a crew member aboard a fishing vessel registered in the country of Belize. The vessel was in international waters when it was spotted by a Coast Guard crew. The Coast Guard searched the vessel for five days before they discovered more than 9200 kilograms of cocaine. Defendant claimed the Maritime Drug Law Enforcement Act (MDLEA), former 46 U.S.C.S. app. §§ 1901-1904 was unconstitutional. The appellate court found that the location of the vessel, the large amount of cocaine, the types of navigational charts on board, and the existence of some matching logos were sufficient indicators of nexus for the exercise of United States jurisdiction to not be arbitrary or fundamentally unfair.
Defendants extradited to the US The Specialty Doctrine -a criminal defendant extradited from one nation to another may be prosecuted only for only those offenses for which the surrendering state agreed to extradite
Defendant extradited to the US Dual Criminality A defendant may be extradited only for conduct that constitutes a serious offense in both the requesting and surrendering country WANTED
Dual Criminality United States v. Kahn reversed and dismissed defendant’s conviction and sentence on the use of a communication facility; using a telephone during the commission of a drug offense is not a criminal act in Pakistan. 993 F.2d 1368 (9th Cir. 1993).
Defendant extradited to the US Double Jeopardy May limit prosecution if extradition treaty contains a double jeopardy provision, and defendant has previously been prosecuted for same acts or offense
II. Consular assistance Defendant’s right to have consulate notified Consulate as resource Violation of Vienna Convention “In other words, did C. M.s confession result in part from "[his] isolation from family, friends, [or] representatives of [his] country or an attorney" ? U.S. v C.M. (2007) (See materials in handout)
II Consular Assistance: Marquez-Burrola v. State, 2007 OK CR 14 (2007) Footnote 20: We find it ironic that before Appellant’s family retained counsel for him, the trial court had appointed the Capital Trial Division of the Oklahoma Indigent Defense System (OIDS) to this case, and that OIDS, later appointed to represent Appellant on direct appeal, was able to marshal substantial mitigating evidence. This was accomplished with invaluable help from attorneys and mitigation specialists working on behalf of the government of Mexico – the same professionals who had repeatedly offered assistance to trial counsel, and who testified that a thorough mitigation investigation might have been available before trial, had trial counsel first sought funds from the district court to conduct it.
Death Sentence vacated: Marquez-Burrola v. State, 2007 OK CR 14 (2007) Defense counsel was ineffective for failing to adequately present mitigation evidence during defendants sentencing. Modification of defendants death sentence was appropriate, as evidence supporting the continuing threat to society aggravating factor was weak, defendant had no known criminal record, and evidence of his mental illness was considerable.
III. Interpreter and Language Issues Important to assess early on: a) There may be language issues in the case b) Limitations on communication can impair attorney client relationship c) Attorney might err in assessing competency or ability to comprehend. d) Will impair client’s ability to participate in trial and failure to use interpreter pretrial might be used against the defendant
III. Interpreters and Language IssuesCommon Myths that may account for lack of appreciation oflanguage issues in the criminal justice system1. A person who can communicate on a one-to-one basis (e.g., store salesperson: customer, attorney- client) can also listen to and participate effectively in courtroom interaction.2. An adult living and working in the US for 10 years should be able to understand and speak English. If such a person claims not to understand English (or only understand a little), the person is lying.* Courtesy of Margaret van Naerssen
III. Interpreters and Language Issues Common Myths 3. A person who can communicate in “daily-life” interactions can also do so effectively by telephone. 4. A non-native speaker’s language skills are the same across reading, writing, speaking, and listening. (This also applies to native speakers.) 5. A. person’s communication skills in a second language reflect the person’s intellectual level.
Marquez-Burrola v. State, 2007 OK CR 14(2007) While a certified interpreter was funded by the trial court and used at the proceedings, at other times counsel "made do" with such unlikely interpreters as the brother of the murder victim and Appellants twelve-year-old nephew. Regardless of how proficient these persons might have been in both languages, whether they were competent to relate matters of legal significance, and whether they did in fact communicate the true nature of the proceedings to Appellant effectively, are issues of considerable concern. 16 16 The record suggests that Appellants family instructed the nephew not to alarm Appellant with the information he was supposed to relay. In addition, at the evidentiary hearing, lead defense counsel testified that due to the language barrier, it was "very difficult to discuss with [Appellant] the plea offer extended by the State and the reasons why we believed that he should accept the offer.
IV. Immigration Consequences Important to know client’s current status Client must disclose all prior convictions for valid opinion Opinion letters for analysis of immigration consequences, safe harbour and negotiations Counsel must emphasize draconian nature of law
IV. Immigration Consequences Consequences can include removal from US, denial of naturalization, revocation of naturalization; Criminal penalties for illegal reentry 8 USC 1326; Drug offenses, convictions have some of the harshist consequences (no relief available even if LPRs.)
IV. Immigration Consequences Who affected? Undocumented waiting for opportunity Lawful permanent resident aliens Asylees Conditional residents Non-immigrant visa holders
V. Foreign Evidence Important to consider laws of foreign jurisdiction Letters rogatory Mutual Legal Assistance Treaty
Foreign Sovereignty Counsel must be aware of laws: Example: Brazilian authorities do not permit persons, such as American attorneys, to take depositions for use in a court in the United States before a U.S. consular officer, and Brazil has advised it would deem taking depositions in Brazil by foreign persons to be a violation of Brazil’s judicial sovereignty. Such action potentially could result in the arrest, detention, expulsion, or deportation of the American attorney or other American participants.
IV. Foreign Evidence Letters Rogatory- may be only way to secure foreign documents or secure deposition witnesses Rule 15 Depositions, including video, may be only way to secure foreign witness testimony MLATs-Mutual Legal Assistance Treaties---- may be the way that the government obtained evidence, conducted search, etc. Defense counsel might want to ask Court to order government to use MLAT to obtain evidences See: United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 (evidence seized in UK per MLAT)
Government’s use of evidenceobtained abroad………….. USA v Bourdet 2007 The DEA agents presence and coordination with Salvadoran officials at the arrest site did not directly effect the arrests over which the Salvadoran police exercised complete control. As non-resident aliens with no voluntary U.S. connection, defendants could not invoke the Fourth Amendment for foreign actions by federal officials; the joint-venture doctrine did not apply.
VI. Cultural Defenses: Alison Dundes Renteln “The main task before lawyers is to show how culture affects a defendant’s perceptions and behavior.” “The notion of culture is elusive. Though an abstract definition of culture may be murky, the challenge for practitioners is to ascertain the validity of a particular tradition in the context of a particular case. “
Alison Dundes Renteln “Defense attorneys should be aware that some academics consider culture to be a social construction. If traditions are patriarchal creations, this might imply that they do not deserve any protection. It is important that counsel point out that men and women defend the cultural traditions as part of their way of life regardless of what outsiders think.”