Human Smuggling

On August 5, a former United States Border Patrol Agent was arraigned on charges of alien smuggling and a false claim of United States citizenship.^[1] On August 11, he was denied bail.^[2] The defendant is accused of smuggling people in his Border Patrol vehicle, receiving $1,500 a person.^[3] He was also accused of applying for the Border Patrol job with a fake birth certificate that said he was born in Chicago, when he was apparently born in Tijuana, Mexico.^[4]

He was charged under 18 U.S.C. § 911 for the false claim of U.S. citizenship count, and under 8 U.S.C. §§ 1324(a)(1)(A)(i) and (v)(I) for the alien smuggling count.^[5]

False Claim of U.S. Citizenship
18 U.S.C. § 911 makes it a crime for a person to falsely and willfully represent himself to be a citizen of the United States.

Violating section 911 can result in a fine, imprisonment for not more than three years, or both.

Alien Smuggling
8 U.S.C. § 1324(a)(1)(A)(i) states that it is a criminal act for anyone, knowing that a person is an alien, to bring that person to the United States in any manner whatsoever at a place other than a designated port of entry, regardless of whether the alien has received official authorization to enter the United States. 8 U.S.C. § 1342(a)(1)(A)(v)(I) criminalizes engaging in any conspiracy to do so.

Violating section 1324 can be punished by a fine, imprisonment for up to 5 years, or both.

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[1] Carol C. Lam, Office of the U.S. Atty., Southern Dist. of Cali., News Release 1, Aug. 5, 2005, available here.
[2] Former Border Patrol Agent Accused of Smuggling Denied Bail, Associated Press, Aug. 11, 2005, available here.
[3] Id.
[4] Id.
[5] Lam, supra note 1, at 2.

Economic Espionage

The FBI has alleged that roughly 3,000 Chinese “front companies” have been established in the United States for the purpose of illegally acquiring military or industrial technologies. See Jay Solomon, Phantom Menace: FBI Sees Big Threat From Chinese Spies; Businesses Wonder, Wall St. J., Aug. 10, 2005, at A1.

According to the Wall Street Journal, “[t]he government is currently prosecuting about a dozen cases against individuals alleged to have sent technology—sometimes designs, sometimes software, sometimes high-tech equipment—to China illegally.” Id. One of the higher-profile cases involved Sun Microsystems and Transmeta Corp., “where two Chinese nationals who had worked at the software and semiconductor giants were arrested at the San Francisco airport allegedly holding proprietary data from the companies.” Id. They were charged with economic espionage and the case is currently pending. Id.

Economic espionage is a transnational crime which is taken very seriously by both the United States government and by international institutions like Interpol. Economic espionage is criminalized by 18 U.S.C. § 1831. Under that section, it is a crime for any person, who intends to benefit a foreign government, to knowingly

• steal, or without authorization appropriate, take, carry away, or conceal, or by fraud, artifice, or deception obtains a trade secret; 18 U.S.C. § 1831(a)(1);
• without authorization copy, duplicate, sketch, draw, photograph, download, upload, alter, destroy, photocopy, replicate, transmit, deliver, send, mail, communicate, or convey a trade secret; id. § 1831(a)(2);
• receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization; id. § 1831(a)(3);
• attempts to commit any offense described in any of paragraphs (1) through (3); id. § 1831(a)(4); or
• conspires with one or more other persons to commit any offense described in any of paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy. Id. § 1831(a)(5).

A violation of section 1831 may be punished by a fine of up to $10,000,000, imprisonment for up to 15 years, or both.

Somali Pirates

Over a month ago, a band of Somali pirates seized a United Nations World Food Program vessel and held 10 people hostage. Andrew Cawthorne, Somali Pirates to Free Crew of Hijacked Tanker, Wash. Post, Aug. 7, 2005, at A17, also available here. The vessel, laden with tons of rice donated by Japan and Germany, had been heading for the port of Bossaso, also known as Bender Cassim, when it was seized on June 27. Id. But, as reported by the Washington Post, the pirates have agreed to release the vessel and crew. Id.

Initially, the pirates demanded a $500,000 for the hostages, but then reduced the demand to only the rice. Id. It seems that now an agreement has been reached to release the ship and unload the rice in the port of El Maan, just north of Mogadishu. Id.

Piracy is a universally condemned crime, one of the few to which “universal jurisdiction” applies. See Restatement (Third) of Foreign Relations Law of the United States § 404 (1987) [hereinafter, Restatement]. Under the concept of universal jurisdiction, any nation can prosecute a person for certain acts committed anywhere in the world, if that nation’s domestic statutes allow it.

In the United States, piracy is criminalized by 18 U.S.C. § 1651 which states that whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, will be imprisoned for life. Piracy is defined as “a forcible depredation upon property on the high seas without lawful authority, done … in a spirit and intention of universal hostility.” United States v. Baker, 24 F. Cas. 962, 965 (C.C.S.D.N.Y. 1861) (No. 14,501). Likewise, a pirate is a person who “roves the sea in an armed vessel … on his own authority, and for the purpose of seizing by force and appropriating to himself, without discrimination, every vessel he may meet.” Id. The term “high seas” typically refers to international waters.

Acts of piracy are quite common. According to the Washington Post, the Somali incident was just one of at least 25 pirate attacks since the beginning of the year. Furthermore, piracy is beginning to resemble modern international terrorism. “Today’s pirates are often trained fighters aboard speedboats equipped with satellite phones and global positioning systems and armed with automatic weapons, antitank missiles, and grenades.” Gal Luft et al., Terrorism Goes to Sea, Foreign Aff., Nov.-Dec. 2004, at 61. In fact, on July 26, a band of 35 pirates carrying machine guns and rocket launchers boarded a tanker laden with methane in the Malacca Strait, whose waters are shared by Singapore, Indonesia and Malaysia. Kari Huus, Resurgence of Piracy Highlights Terror Risk, MSNBC.com, Jul. 26, 2005, available here. As terrorism concerns begin to mount, we expect to see pirate prosecutions, which are almost nonexistent, begin to increase.

Sevan Extradition from Cyprus

Following on yesterday’s news that Benon Sevan would likely be facing charges for illegal kickbacks, we noted that Mr. Sevan, as a citizen of Cyprus, would likely not be extradited because, under the extradition treaty, Cyprus is not obligated to extradite its own citizens.

Reuters is reporting that Cyprus is indeed “unlikely to extradite the Cypriot former head of the U.N. oil-for-food programme.” Michele Kambas, Cyprus Unlikely to Extradite Oil-for-Food Official, Reuters, Aug. 10, 2005, available here. According to the article, it is unknown whether Mr. Sevan would willingly return to the United States, and when asked how authorities would respond to an extradition request, a senior Cypriot official stated “There is a constitutional prohibition on extraditing one of our nationals to another jurisdiction.” Id. Therefore, a Cypriot court could likely cite the constitution to bar the extradition of Mr. Sevan. Id.

At the moment, while Mr. Sevan was known to be in Cyprus as recently as Saturday, August 6, Cypriot Foreign Minister George Iacovou told Reuters “I am not even aware of him being here.”

Dominican Smuggling

Five Dominican men have been convicted in Puerto Rico for human smuggling. Leonardo Aldridge, Five Dominicans Convicted of Human Smuggling in Puerto Rico, Associated Press, Aug. 9, 2005, available, in part, here; see also Jorge Luis Medina, Culpables por Tráfico de Ilegales, Aug. 10, 2005, El Vocero de Puerto Rico, available here; Rosita Marrero, Culpables por Traficar Ilegales Dominicanos, Primera Hora, available here.

According to the AP report, the five men led a “harrowing” sea journey from the Dominican Republic to Puerto Rico. En route, the boat capsized, killing at least seven on board. The defendants were picked up by authorities after the capsize.

In 2000, Congress enacted the Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified at 22 U.S.C. §§ 7101 et seq.) [hereinafter TVPA], to combat trafficking in persons. Congress determined that human trafficking was a modern manifestation, and enacted the TVPA to “ensure just and effective punishment of traffickers, and to protect their victims.” 22 U.S.C. § 7101(a).

Under the TVPA, Congress enacted 18 U.S.C. § 1590, which makes it a crime for a person to knowingly

• recruit
• harbor
• transport
• provide, or
• obtain by any means

any person for labor or services.

This is a crime that is punishable by a fine, imprisonment for not more than 20 years, or both. Because death occurred during the transportation, the sentences for the defendants could be enhanced to life imprisonment. The AP report also noted that four of the five men were found guilty of endangering human lives, which is also an aggravating factor which can enhance a defendant’s sentence to life in prison.

Benon Sevan

Following up on yesterday’s posts about the Oil-for-Food scandal, the former head of the program, Benon Sevan, could soon face charges after the investigation said that it has found enough evidence of a kickback scheme to support prosecution. Edith M. Lederer et al., Ex-U.N. Program Director May Face Charges, Wash. Post, Aug. 9, 2005, available here. Mr. Sevan has been accused of taking nearly $150,000 in bribes to steer Iraqi oil contract to a firm run by relatives of the former U.N. Secretary-General, Boutros Boutros Ghali. Senior Oil-for-Food Aide Took $1m in Bribes, Times Online, Aug. 9, 2005, available here. Mr. Sevan denies any wrongdoing, and has claimed that the money in question came from his aunt in his native Cyprus, and that he declared them on his U.N. tax returns. Id. The investigatory committee rejects the claim, and Mr. Sevan has returned to Cyprus. Id.

It is unclear from where the potential criminal charges against Mr. Sevan could come. According to the Washington Post story, Mr. Sevan is the subject of a New York state criminal investigation. It is quite possible that Mr. Sevan could be charged with conspiracy, wire fraud, and money laundering, much like his colleague, Alexander Yakovlev.

Furthermore, prosecuting Mr. Sevan could prove difficult because he is currently located in Cyprus. See James Bone et al., From Rags to Riches to Ruined Reputation, Times Online, Aug. 9, 2005, available here. As a Cypriot, he will not necessarily be extradited to the United States. Id. The extradition treaty between Cyprus and the United States states that

• neither country is obligated to extradite its own citizens, but may do so as long as the extradition would not violate its laws and Constitution; and
• if extradition is refused solely on the basis of nationality, then the refusing country is under an obligation, at the behest of the requesting state, to prosecute the individual itself. Extradition Treaty, Jun. 17, 1996, U.S.-Cyprus, art. 3, S. Treaty Doc. No. 105-16 (1998) (entered into force, Sept. 14, 1999).

Venezuela Severs Ties with DEA

Venezuelan President Hugo Chávez announced Sunday that Venezuela would no longer allow the United States Drug Enforcement Agency to operate within its borders. Andy Webb-Vidal, Chávez Abandons Co-Operation With US over Drugs, Fin. Times, Aug. 9, 2005 at 7, also available here.

Venezuela, in recent years, has become a major corridor in the international drug trade; roughly one-third of Colombia’s cocaine is smuggled through Venezuela. Id. The United States is disheartened by the decision which has been characterized as a signal that Venezuela wishes to cut all ties with the United States. Id.

When President Chávez made the announcement, he claimed that “the DEA was using the fight against drugs trafficking as a cover to undertake intelligence work in Venezuela against the government, even to support drugs trafficking.” Id. While the DEA will occasionally co-opt small-time dealers to catch big-time traffickers in a process known as “controlled delivery,” id., the United States denies that it has been conducting intelligence operations in Venezuela, and is now considering punishing the country with sanctions. See Saul Hudson, U.S. Mulls Sanctions on Venezuela over Drug Move, Wash. Post, Aug. 8, 2005, available here.

The United States has already sanctioned Venezuela for failing to combat human trafficking. Id.

Oil-for-Food Arrest Update

The Associated Press reports that Alexander Yakovlev pleaded guilty to accepting hundreds of thousands of dollars in bribes from U.N. contractors. See Nick Wadhams, Former U.N. Procurement Officer Pleads Guilty to Taking Bribes from U.N. Contractors, Associated Press, Aug. 8, 2005. See also this MSNBC.com report. According to the reports, Mr. Yakovlev pleaded guilty to charges of conspiracy, wire fraud, and money laundering.

Conspiracy
Conspiracy is a federal crime, criminalized by 18 U.S.C. § 371. Under section 371, it is a crime for two or more people to conspire to do either of the following:

• commit any offense against the United States, or
• defraud the United States.

A further requirement of conspiracy is that one or more of the conspirators must do some act in furtherance of the object of the conspiracy. The punishment for a conspiracy violation is a fine, imprisonment for not more than five years, or both.

Wire Fraud
Wire fraud is also a federal crime, criminalized by 18 U.S.C. § 1343. It is a violation of the wire fraud statute for a person who has devised a scheme to defraud or obtain money by false pretenses, to transmit information over the wires for the purpose of executing the scheme to defraud. Violating section 1343 can result in a punishment of a fine, imprisonment for not more 20 years, or both.

Money Laundering
Money laundering is both a federal crime and a transnational crime, criminalized by 18 U.S.C. §§ 1956 and 1957. There are three different ways to violate section 1956.

The first is for a person “knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity” to conduct or attempt to conduct such a financial transaction which in fact involves the proceeds of an unlawful activity—

• with the intent
• to promote the carrying on of specified unlawful activity, 18 U.S.C. § 1956(a)(1)(A)(i); or
• to engage in conduct constituting a violation 26 U.S.C. §§ 7201 or 7206 (relating to the Internal Revenue Code), 18 U.S.C. § 1956(a)(1)(A)(ii) ; or
• knowing that the transaction is designed in whole or in part—
• to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity, 18 U.S.C. § 1956(a)(1)(B)(i); or
• to avoid a transaction reporting requirement under State or Federal law. Id. § 1956(a)(1)(B)(ii).

The second way a person can violate section 1956, is for a person to

• transport, transmit, or transfer, (or attempt to transport, transmit, or transfer) a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States—
• with the intent to promote the carrying on of specified unlawful activity, 18 U.S.C. § 1956(a)(2)(A); or
• knowing that the monetary instrument or funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part—
• to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity, Id. § 1956(a)(2)(B)(i); or
• to avoid a transaction reporting requirement under State or Federal law. Id. § 1956(a)(2)(B)(ii).

And the final way to violate section 1956 is for a person to have the intent to

• promote the carrying on of specified unlawful activity, 18 U.S.C. § 1956(a)(3)(A);
• conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity, Id. § 1956(a)(3)(B); or
• avoid a transaction reporting requirement under State or Federal law, Id. § 1956(a)(3)(C),

and

• conduct or attempt to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity. Id. § 1956(a)(3).

A violation of any of these sections can be punished by a fine, imprisonment for not more that 20 years, or both.

The other statute that involves money laundering, 18 U.S.C. § 1957, is very similar to the provisions of section 1956, except that the property in question must have a value greater than $10,000 and it must occur with United States jurisdiction. The punishment for a violation of section 1957 is a fine, imprisonment for not more than ten years, or both.

It is possible that the fact that Mr. Yakovlev has pleaded guilty so quickly means that he is cooperating with investigators in exchange for his testimony against someone higher up. Mr. Sevan, perhaps, or even Kofi Annan?

Oil-for-Food Arrest

Foxnews.com, MSNBC.com, and CNN.com are reporting that the United States Attorney’s Office has apparently taken Alexander Yakovlev into custody. Mr. Yakovlev is an ex-United Nations procurement official, and he resigned his post in June amid allegations surrounding the Oil-For-Food scandal investigation.

The $65 billion Oil-for-Food program was begun in 1996, under the supervision of the United Nations. See Warren Hoge, U.N. Inquiry Says Oil-for-Food Chief Accepted Kickbacks, N.Y. Times, Aug. 8, 2005, available here. Under the program, “Iraqi oil revenue was used to buy relief goods for Iraqis strapped by United Nations sanctions but…was exploited by Saddam Hussein to skim $1.7 billion in illegal profits.” Id. Recently, Paul Volcker was named to head the U.N.’s Independent Inquiry Committee to investigate allegations of misdoing.

At the request of U.S. prosecutors, the United Nations has lifted Mr. Yakovlev’s diplomatic immunity, and Secretary General Kofi Annan’s chief of staff, Mark Malloch Brown, told reporters that “we believe Mr. Yakovlev is already in custody.”

According to CNN.com, Mr. Volcker had earlier announced that the probe into the Oil-For-Food scandal discovered that Mr. Yakovlev “solicited a bribe from a French company that bid unsuccessfully on an Oil-for-Food contract.” While the report found no evidence that the company paid the desired bribe, it did find “that more than $1.3 million had been wired to a bank account [Mr.] Yakovlev controlled on the Caribbean island of Antigua since 2000.”

Another diplomat was named in Mr. Volcker’s report: Benon Sevan, who, according to Foxnews.com, was “the one-time head of the Oil-for-Food program who severed his ties with the United Nations on Sunday [August 7, 2005],” and is accused of “taking kickbacks under the multi-billion dollar humanitarian operating aimed at easing the effects of sanctions on Iraqi civilians.” According to the New York Times article cited above, the Manhattan District Attorney, Robert M. Morgenthau, announced last month that he had opened a state criminal investigation of Mr. Sevan.

If it turns out that Mr. Yakovlev was arrested under a federal indictment, which seems to be the case, then a federal corruption statute comes into play. Corruption of public officials is both a federal crime and a transnational crime. Under 18 U.S.C. § 201(b)(2), it is a crime for a public official to seek or receive anything of value in return for

• being influenced in the performance of an official act,
• being influenced to commit a fraud on the United States, or
• being induced to committing an act in violation of his official duty.

A violation of this statute could result in a fine, imprisonment for not more than 15 years, or both.

To be successful, however, the United States needs to have jurisdiction over the individual. And it is not entirely clear under what statute the U.S. Attorney’s Office is operating; under section 201(a)(1), the term “public official” does not include foreign diplomats at the United Nations.