Human Trafficking—Prostitution

Four Mexican nationals were indicted by the US District Court in Houston for conspiring to smuggle minor Mexican girls and young Mexican women into the United States for the purpose of forcing them to engage in prostitution.^[1] Gerardo Salazar, also known as “El Gallo” (the rooster), is allegedly the ring leader of a group of men who smuggled the women into the country using deception, threat of harm, physical force, and psychological coercion; he is a fugitive and a warrant for his arrest is outstanding.^[2] Mr. Salazar’s two nephews and an associate, all of whom are illegal aliens, are in custody pending trial.

The single count indictment alleges a violation of 18 U.S.C. § 1591. If you recall, we mentioned yesterday that the defendants in that case pleaded guilty to violating 18 U.S.C. § 2421, but there were a number of other applicable statutes. Section 1591 is just one of those statutes. It is a violation of section 1591 for a person to “knowingly”

• recruit, entice, harbor, transport, provide, or obtain by any means a person, knowing that force, fraud, or coercion will be used to cause that person to engage in a commercial sex act;^[3]
• recruit, entice, harbor, transport, provide, or obtain by any means a person who has not reached 18 years of age, and that person will be caused to engage in a commercial sex act;^[4] or
• benefit, financially or by receiving anything of value, from participation in such a venture.^[5]

The punishment for violating section 1591 is a fine, imprisonment for up to life, or both.^[6]

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[1] US Attorney’s Office, Press Release: Four Mexican Nationals Indicted for Sex Trafficking, Sept. 16, 2005, available here.
[2] Id.
[3] 18 U.S.C. § 1591(a)(1).
[4] Id. § 1591(a).
[5] Id. § 1591(a)(2).
[6] Id. § 1591(b)(1).

Human Trafficking—Informants

The FBI is not the only federal law enforcement agency facing trouble with its network of informants. Kong Sun Hernandez, an informant for US Border Patrol agents, pleaded guilty to one charge of transporting a person in furtherance of prostitution.^[1] Her boyfriend, Tae Hyu Shin, also pleaded guilty to the charge.^[2] Between 2001 and 2003, Ms. Hernandez worked for the US Border Patrol as an informant on human smuggling activities at the US-Canada border, but on the side she recruited Mr. Shin to help her smuggle Korean women into the United States to work as prostitutes.^[3] Some of the women were brought into the country through a group headed by Young Pil “Ricky” Choi, the leader of a Los Angeles-area prostitution ring, who was convicted earlier this year for his smuggling activities.^[4] The story has an ironic twist: Ricky Choi was convicted with evidence provided to the government by none other than Ms. Hernandez.^[5]

Transportation in Furtherance of Prostitution
The charge to which Ms. Hernandez and Mr. Shin pleaded guilty, violating 18 U.S.C. § 2421, is by no means the only human trafficking or smuggling statute that the federal government can use to prosecute a person suspected of trafficking in persons for sexual activity. 18 U.S.C. § 2421, which is part of the Mann Act (also known, oddly, as the White Slave Traffic Act), makes it a crime for a person to knowingly transport a person in interstate or foreign commerce with the intent that the individual will engage in prostitution.
Violating this statute can be punished by a fine, imprisonment for up to ten years, or both. Per the terms of the pleas agreement, Ms. Hernandez will serve no more than one year in prison and pay a $5,000 fine, and Mr. Shin will serve no more than three months in prison.^[6]

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[1] US Attorney’s Office, Press Release: Two Federal Way Residents Plead Guilty in Connection to Human Smuggling Ring, Sept. 14, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Gene Johnson, Border Patrol Informant Pleads Guilty to Smuggling Prostitutes, Seattle Post-Intelligencer, Sept. 14, 2005, available here.
[6] Id.

Extraterritorial Jurisdiction—Wesam Delaema

An Iraqi-born Dutch resident has been indicted in US District Court in Washington, D.C., for conspiring to bomb US convoys in Fallujah.^[1] This is the first time criminal charges have been used against an individual for their alleged role in the Iraqi insurgency,^[2] and his case will certainly challenge the notions of United States jurisdiction.

Wesam Delaema, who is also known as Wesam Al Delaema or Wesam Khalaf Chayed Delaema, has been indicted on six counts:

1. conspiracy to kill US citizens abroad;
2. conspiracy to use a weapon of mass destruction;
3. conspiracy to maliciously damage or destroy US government property by means of an explosive;
4. possession of a destructive device during a crime of violence;
5. conspiracy to possess a destructive device during a crime of violence; and
6. teaching or demonstrating the making or use of an explosive with the intent to further a crime of violence.^[3]

Mr. Delaema was arrested in the Netherlands on May 2, 2005, and the US is now expected to formally request his extradition.^[4] The indictment alleges that Mr. Delaema traveled from the Netherlands to Iraq in October 2003, joining a group calling themselves the “Mujahideen from Fallujah.”^[5]

Count 1
Conspiracy to commit murder is covered by 18 U.S.C. § 1117, which states that if two or more persons conspire to violate certain homicide statutes of the United States (18 U.S.C. §§ 1111, 1114, 1116, or 1119) each person will be punished by imprisonment for any term of years or for life. There is an “overt act” requirement under this statute.^[6] It isn’t clear precisely which statute is being used, though section 1116 is not at issue as that applies to the killing of foreign officials.

The first possible statute is 18 U.S.C. § 1111, which states that murder is the unlawful killing of a human being with malice aforethought.^[7] Any murder committed by a willful, deliberate, malicious, and premeditated killing will be treated as a first degree murder; all other murders will be treated as second degree murders.^[8] The punishment for a murder “within the special maritime and territorial jurisdiction of the United States” is death or imprisonment for life for a first degree murder, or imprisonment for any term of years or life in the case of a second degree murder. ^[9] This jurisdictional requirement is tricky, and we will address it shortly.

The next homicide statute at issue is 18 U.S.C. § 1114, which states that any person who kills or attempts to kill “any officer or employee of the United States or of any agency…(including any member of the uniformed services)” while that person is engaged in official duties, will be punished for murder^[10] or attempted murder.^[11] There is no jurisdictional statement in this statute.

The final statute that is potentially at issue in this case is 18 U.S.C. § 1119, which states that any person “being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States” but is within the jurisdiction of another country, will be punished for murder or attempted murder.^[12] The obvious problem with using this statute is that Mr. Delaema is not a national of the United States, and thus he is not covered by its provisions.

Count 2
One should not get too excited about the use of the term “weapon of mass destruction” in the indictment. The statute at issue in this part of the indictment is assuredly 18 U.S.C. § 2332a, which states that a person who conspires to use a weapon of mass destruction against a national of the United States while that national is outside the United States^[13] will be imprisoned for any term of years of for life; if death results, the conspirator can be put to death. ^[14] However, in this section “weapon of mass destruction” means any destructive device as defined by 18 U.S.C. § 921.^[15] Section 921 defines “destructive device” as a bomb, explosive, grenade, rocket, missile, mine, or similar device.^[16] It can even refer to rifles with a barrel bore that is larger than one-half inch in diameter (except for shotguns).^[17] Again, there is no jurisdictional statement in this section, and, furthermore, there is no “overt act” requirement.

Count 3
Conspiring to use such an explosive device against US property is covered by section 2332a(a)(3), which makes it illegal for a person to conspire to use a weapon of mass destruction against “any property that is owned, leased, or used by the United States or by any department or agency of the United States” regardless of where that property is located. Doing so results in the same punishment as using an explosive device against a US national.^[18]

Count 4
This charge is covered by the Byzantine firearms statutes, notably 18 U.S.C. § 924(c)(1)(B)(ii), which states that if a person commits a crime of violence while possessing a destructive device, he will be punished with imprisonment for no less than 30 years. However, the crime of violence, which is defined as a felony that has the use of force as an element,^[19] must be one for which a person may be prosecuted in a court of the United States.^[20]

Count 5
The conspiracy charge for possessing a destructive device during a crime of violence could be covered by 18 U.S.C. § 371, which we have discussed here.

Count 6
Teaching or demonstrating how to make or use an explosive device is covered by 18 U.S.C. § 231. It states that any person who teaches or demonstrates to any other person “the use, application, or making of any … explosive or incendiary device … knowing … that the same will be unlawfully employed for use in … a civil disorder which may … obstruct, delay or adversely affect commerce,”^[21] will be punished by a fine, imprisonment for not more than five years or both.^[22]

Jurisdictional Issues
As we have noted, the prosecution of Mr. Delaema presents very interesting jurisdictional issues. Channing Philips, a spokesman for federal prosecutors, announced that the United States has jurisdiction over crimes committed in “the extraterritorial jurisdiction of the United States.”^[23] But it isn’t quite as clear cut as that.

The homicide statutes, except for 18 U.S.C. § 1114, state that the act must be committed in the “special maritime and territorial jurisdiction of the United States.” This is a term of art, and the definition of this term is found in 18 U.S.C. § 7. Section 7 states that this jurisdiction covers the high seas, US vessels, land reserved for the US and for erection of military installations, islands with guano deposits, US aircraft, US spacecraft, places outside the jurisdiction of any nation, foreign vessels that are moving to and from the US, or crimes committed on US diplomatic installations or diplomatic residences. Iraq, unless it was a place outside the jurisdiction of any nation in 2003, is not covered by this definition.

Thus, only section 1114 seems to apply for the conspiracy to kill US nationals, but for it to apply, the government would have to prove that Congress intended the statute to have extraterritorial effect; there is a presumption that Congress did not intend to violate principles of international law.^[24] Extraterritorial jurisdiction usually violates international law. However, there are several principles of international law under which exercising extraterritorial jurisdiction may be appropriate.^[25] Among these are the Objective Territorial Principle, the Protective Principle, the Nationality Principle, and the very controversial Universality Principle. To learn more about these principles, please visit our discussion of extraterritorial jurisdiction here.

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[1] U.S. Indicts Dutchman in Iraqi Insurgency, Washington Times, Sept. 13, 2005, available here [hereinafter, WT].
[2] Id.
[3] Department of Justice, Press Release: Dutch Citizen Indicted in Terrorism Conspiracy Against Americans in Iraq, Sept. 9, 2005, available here.
[4] Id.
[5] Id.
[6] For more on “overt act” requirements, please see our discussion here.
[7] 18 U.S.C. § 1111(a).
[8] Id.
[9] Id. § 1111(b).
[10] Id. § 1114(1).
[11] Id. § 1114(3).
[12] Id. § 1119(b).
[13] Id. § 2332a(a)(1).
[14] Id. § 2232a(a).
[15] Id. § 2332a(c)(2).
[16] Id. § 921(a)(4)(A).
[17] Id. § 921(a)(4)(B).
[18] Id. § 2332a(a).
[19] Id. § 924(c)(3)(A).
[20] Id. § 924(c)(1)(A).
[21] Id. § 231(a)(1).
[22] Id. § 231(a).
[23] WT, supra note 1.
[24] See United States v. Clark, 315 F. Supp. 2d 1127, 1131 (W.D. Wash. 2004); United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994).
[25] Clark at 1127.

Human Trafficking—Eastern European Workers

A Floridian, who is originally from Poland and holds conditional lawful permanent residency, has pleaded guilty to playing a role in a scheme that brought hundreds of Eastern European workers to the United States, as well as depriving the United States government of millions of dollars in taxes.^[1] Pavel Preus is the first member of a six-man ring which allegedly brought 550 people from the Czech Republic, Poland, Hungary, the Slovak Republic, and other countries, to the United States under somewhat false pretenses.^[2]

Mr. Preus was originally indicted and arrested in early April of this year as part of Operation Pisces, which began in 2002.^[3] The 26-count indictment alleges that over the past ten years, the defendants conspired to provide unauthorized Eastern Europeans who had entered the country on tourist visas, to American companies who had contracted with the defendants to provide legally authorized foreign workers.^[4] These workers were employed illegally on farms, in dairies, and in factories, throughout the Midwest and Southeastern US.^[5] The defendants were supposed to pay payroll taxes and workers’ compensation deductions, but they allegedly did not do so; nearly $6 million in payroll taxes were allegedly not paid, and the defendants allegedly laundered more than $20 million.^[6]

Mr. Preus pleaded guilty to three charges:

1. conspiracy to induce and encourage aliens to enter and remain unlawfully in the United States for commercial advantage, conspiracy to transport and conceal aliens in the United States for commercial advantage, and conspiracy to cause the making of false statements to government agencies;
2. conspiracy to commit money laundering; and
3. conspiracy to defraud the United States of taxes due.^[7]

Sentencing is scheduled for November 21.^[8]

Charge 1
The crimes in Charge 1 are all covered by 8 U.S.C. § 1324(a)(1)(A). Inducing and encouraging aliens to enter the US is covered by section 1324(a)(1)(A)(iv), transporting aliens is covered by section 1324(a)(1)(A)(ii) and concealing aliens is covered by section 1324(a)(1)(A)(iii). The conspiracy provision is found at section 1324(a)(1)(A)(v)(I), which punishes a conspiracy to commit the violations as if the violations had been committed. Because the conspiracy was entered into for financial gain, the punishment is a fine and imprisonment for up to 10 years.^[9]

Charge 2
We have previously discussed conspiracies to commit money laundering here.

Charge 3
Tax-fraud conspiracies are typically prosecuted under 18 U.S.C. § 371, which states that if any person conspires with another to commit any offense against the United States, or to defraud the United States or any agency of the United States, he will be fined, imprisoned for up to five years, or both. Unlike conspiracy to launder money, or conspiracy to traffic in narcotics,^[10] there is a requirement under section 371 that the government prove an overt act, though in this case that is a somewhat irrelevant point, since Mr. Preus pleaded guilty before trial.

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[1] Curt Anderson, Feds Get Guilty Plea Florida Man in Eastern European Worker Scam, Sun-Sentinel, Sept. 13, 2005, available here. See also Department of Justice, Press Release: Defendant Pleads Guilty in Eastern European Employee Leasing Scam, Sept. 13, 2005, available here [hereinafter DOJ I].
[2] Anderson.
[3] Department of Justice, Press Release: Leaders of Nationwide Illegal Alien Employee-Leasing Conspiracy Indicted, Apr. 12, 2005, available here.
[4] Id.
[5] Id.
[6] Id.
[7] DOJ I at 1.
[8] Id.
[9] 8 U.S.C. § 1324(a)(2)(B)(ii).
[10] For more information on the overt act requirement, please see our discussion of it here.

Narcotics Trafficking—The “Prince of Pot”

At first glance, the arrest, extradition, and prosecution of a narcotics trafficker seem fairly mundane. After all, since Colombian President Uribe took office in 2002, nearly 350 suspected narcotics traffickers have been extradited from Colombia to the United States to face trial.^[1] But the case of marijuana activist Marc Emery^[2] has captured substantial global attention recently, raising questions about national sovereignty, the reach of American prosecutorial powers, and the legalization of certain drugs.

Mr. Emery, who is the head of the British Columbia Marijuana Party, is wanted in the United States for his role in shipping marijuana seeds from his home in Vancouver to places in the US, such as Indiana.^[3] Alternatively dubbed the “Prince of Pot”^[4] or the “King of Pot,” Mr. Emery is challenging his extradition to the US, the hearings for which begin September 16.^[5]

He has become something of a cause celebre in Canada, a symbol of national sovereignty.^[6] Many Canadians resent the fact that the United States is trying to have him extradited when the crime for which he is charged is rarely, if ever, prosecuted in Canada; in fact, a recent newspaper poll found that a majority of Canadians are opposed to his extradition.^[7] Furthermore, at a recent protest in front of the US consulate in Vancouver, Mr. Emery openly smoked a marijuana joint as police officers looked on; one officer commented that it was a nice day and that he was glad it didn’t rain.^[8] As one onlooker said “For me this is more about Canadian sovereignty. I support the legalization of all street drugs, but I’m most against the idea of the U.S. being able to take Canadians down to face their brand of justice, which is different than ours.”^[9]

Mr. Emery has been charged with conspiracy to distribute marijuana, conspiracy to distribute marijuana seeds, and conspiracy to engage in money laundering.

Conspiracy to Distribute Marijuana and Marijuana Seeds
Conspiracy to distribute marijuana is punished by 21 U.S.C. § 846, which states that any person who conspires to commit any offense defined in Title 21 will be punished in the same manner as if the person had actually committed the violation. Furthermore, there is no need for the government to prove an overt act in furtherance of the conspiracy.^[10]

Distribution of marijuana and marijuana seeds is penalized by 21 U.S.C. § 841(a)(1), which states that it is unlawful for a person to distribute a controlled substance. The punishment for distributing less than 50 kilograms of marijuana is a fine of up to $250,000, up to five years in prison, or both.^[11] If the defendant has received a final felony conviction on a drug offense, the punishment will be imprisonment for up to 10 years, a fine of up to $500,000, or both.^[12]

The United States seems to be focusing on the fact that Mr. Emery has been convicted for drug offenses in Canada,^[13] and if he is eventually extradited to the United States, prosecutors may be able to receive enhanced penalties for a previous conviction.^[14] The Supreme Court recently ruled in Small v. United States^[15] that provisions that contain language that makes it “unlawful for any person … who has been convicted in any court of a crime punishable for a term exceeding one year … to … possess … any firearm” applies only to domestic convictions.^[16] The Court ruled this way, however, because there was little evidence that Congress had intended foreign convictions to apply to the firearms statute in question.^[17] In the case of prior drug convictions there is evidence that Congress intended to include foreign convictions when considering enhanced penalties.^[18]

Conspiracy to Engage in Money Laundering
Conspiracy to engage in money laundering is covered by 18 U.S.C. § 1956(h), which, like the drug conspiracy statute, penalizes a conspiracy to launder money as if the act had actually been completed. And like the drug conspiracy statute, there is no need to prove an overt act.^[19]

We have discussed money laundering in greater detail here.

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[1] See our discussion of extradition from Colombia here.
[2] See our discussion of Mr. Emery’s extradition here.
[3] See US Attorney’s Office, Press Release: Federal Grand Jury Indicts Marijuana Seed Distributor, Jul. 29, 2005, available here [hereinafter USAO]
[4] See id.
[5] See Amy Carmichael, Pot Activist Marc Emery Rallies Supporters in Front of U.S. Consulate, Associated Press, Sept. 10, 2005, available here.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] See Whitfield v. United States, 125 S. Ct. 687, 691 (2005) (03-1293; 03-1294) (citing United States v. Shabani, 513 U.S. 10, 13-14 (1994)). See also our discussion of this case here.
[11] 21 U.S.C. § 841(b)(1)(D).
[12] Id.
[13] See USAO.
[14] See United States v. Ortiz, 143 F.3d 728, 730 (2d Cir. 1997) (holding that Congress intended to include foreign convictions in sentence enhancing provisions of 21 U.S.C. § 841).
[15] 125 S. Ct. 1752 (2005) (03-750).
[16] Id. at 1754. See also our post on this case here.
[17] Id. at 1756.
[18] See Ortiz at 730.
[19] See Whitfield, supra note 9.