Consular Relations—Tyrone Williams

The Houston Chronicle has a compelling article today about Tyrone Williams, the Jamaican truck driver who was accused and partially convicted of trafficking in persons.^[1] As Mr. Williams’s retrial is gearing up to begin on November 28, a request has been made to have all of his statements to investigators suppressed.^[2] This request is based on Article 36 of the Vienna Convention on Consular Relations [hereinafter Convention],^[3] which states that a foreigner who is in prison in the United States must be able to talk to a consular officer from his country, and that he must be notified of this right. Mr. Williams was never notified of this right under the Convention.

According to South Texas College of Law professor Geoffrey Corn, however, “the key issue related to consular notification has been whether the defendant can establish an actual negative impact from the denial of consular access. … I think this would be difficult if he were advised of his rights and had an attorney.”^[4]

It is a little more complicated than that, however. For instance, in the recent Supreme Court case Medellin v. Dretke,^[5] the Court initially granted certiorari to consider two questions: “first, whether a federal court is bound by the International Court of Justice’s (ICJ) ruling that United States courts must reconsider petitioner Jose Medellin’s claim for relief under the … Convention … without regard to procedural default doctrines; and second, whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation, to the ICJ’s judgment.”^[6] However, after the Court granted certiorari, Mr. Medellin filed a writ of habeas corpus in the Texas Court of Criminal Appeals, “relying in part upon a memorandum from President George W. Bush.”^[7] Because the Court felt that the state-court proceeding may provide Mr. Medellin with the relief he was seeking, they decided to “dismiss the writ of certiorari as improvidently granted.”^[8]

The ICJ case to which the Court refers is Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.),^[9] “in which the Republic of Mexico had alleged violations of the … Convention with respect to Medellin and other Mexican nationals facing the death penalty in the United States.”^[10] The ICJ determined that the Convention guaranteed individually enforceable rights, that the US had violated those rights, and that the US must “provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals” to determine whether the violations “caused actual prejudice,” without allowing procedural default rules to bar such review.^[11] Shortly thereafter, President Bush issued a memorandum that stated the US would fulfill its international obligations under Avena by “having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals address in that decision.”^[12] Of course, that memo only applies to State courts; it isn’t instructive as to Federal courts.

The Court also concluded that there are a number of obstacles that need to be overcome to establish that the Convention compels the type of relief sought by Mr. Williams. The Court would not say, in Medellin, whether the Convention rose above the standard set in Reed v. Farley,^[13] where the Court “recognized that a violation of federal statutory rights ranked among the ‘nonconstitutional lapses we have held not cognizable in a postconviction proceeding’ unless they meet the ‘fundamental defect’ test” found in Hill v. United States.^[14]

However, in an earlier case in which certiorari was denied, Torres v. Mullin,^[15] Justice Stevens explained that the Convention is the law of the land under Article VI, clause 2 of the US Constitution. “[T]he ‘Laws of the United States,’ expressly including ‘all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land.”^[16] Furthermore, he noted that any interpretation of the Convention by the ICJ is binding authority on the United States. “The United States has consented to the compulsory jurisdiction of the International Court of Justice over Convention-related disputes.”^[17]

Now, it must be noted that both Torres and Medellin refer to defendants who had been convicted without being notified of their rights under the Convention, and they lost their ability to appeal because they hadn’t raised the issue at trial. The scenario envisioned in Mr. Williams’s case is slightly different in that he is requesting that his statements be suppressed because he had not been notified of his rights. A previous case, Breard v. Greene,^[18] somewhat contemplates this scenario, because the defendant in that case confessed to a murder and then asked for his conviction and sentence to be overturned because he was not notified of his rights under the Convention.^[19] The Court there stated that “although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply.”^[20]

However, in Torres, Breard was called “hastily crafted” by Justice Stevens, and it “did not discuss the possibility that Breard may have failed to assert the treaty claim because he knew nothing about the treaty until after the state proceedings were concluded. It surely is reasonable to presume that most foreign nationals are unaware of the provisions of the … Convention (as are, it seems many local prosecutors). That is precisely why the Convention places the notice obligation on the governmental authorities.”^[21] Furthermore, Justice Stevens notes, there is “obvious tension between the holding in Breard and the purpose of Article 36 of the … Convention.”^[22] Thus, he concludes, “[a]pplying the procedural default rule to Article 36 claims is not only in direct violation of the … Convention, but it is also manifestly unfair.”^[23]

In other words, it isn’t entirely clear what the Supreme Court thinks of the Convention's provisions, and resolution of the matter is likely a few years away. Any case that does make it to the Supreme Court will have to mount the challenges posed in Medellin.

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[1] Harvey Rice, Defense Says Driver Deprived of Rights, Houston Chronicle, Oct. 28, 2005, available here.
[2] Id.
[3] Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S. T. 77, available here.
[4] Rice, supra note 1.
[5] 125 S. Ct. 2088 (2005).
[6] Id. at 2089.
[7] Id.
[8] Id. at 2090.
[9] 2004 I. C. J. No. 128 (Judgment of Mar. 31)
[10] Medellin at 2089-90.
[11] Id. at 2090 (quoting Avena at 121-22, 153).
[12] Id. (quoting George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005)).
[13] 512 U.S. 339, 349 (1994).
[14] 368 U.S. 424, 428 (1062).
[15] 540 U.S. 1035 (2003).
[16] Id. at 1036.
[17] Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, art. I, 21 U.S.T. 326.
[18] 523 U.S. 371 (1998).
[19] Id. at 373.
[20] Id. at 376.
[21] Torres at 1035-36.
[22] Id. at 1036.
[23] Id.

Counterfeit DVDs and CDs—Operation “Kopy Kat”

Agents from Immigration and Customs Enforcement [hereinafter ICE] have raided a Brownsville, Texas, flea market, shutting down more than 20 shops and an underground lab used to produce counterfeit DVD movies and audio CDs.^[1] 24,153 DVDs and CDs that were being sold for less than $10 each were seized from various shops; while no one was arrested, ICE special agents are continuing the investigation.^[2]

The seized items have a retail value of more than US$120,000, and in addition to the discs that were seized, agents also confiscated CD duplicators, portable DVD players, computers, printers, a radio mixer with an amplifier, and other electronic equipment.^[3]

This is the latest raid on a flea market, and it is becoming clear that many piracy rings are using flea markets to distribute their goods. Earlier this month, Randolph Hobson Guthrie was returned to the United States from China for his role in a large international piracy ring.^[4] Mr. Guthrie was recently arraigned on charges that he engaged in criminal copyright and trademark infringement, in illegally importing infringing goods, and in money laundering.^[5] Much of the evidence that led to Mr. Guthrie’s arrest in China was found at a Mississippi flea market in 2003. And last month, ICE agents raided a flea market in Donna, Texas, where they seized 8,725 DVDs and CDs.^[6]

In related news, the United States is going to the World Trade Organization in an attempt to pressure China into doing more to combat intellectual property infringement.^[7]

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[1] ICE, Operation “Kopy Kat” Results in the Seizure of Thousands of Pirated Motion Picture DVDs and Music CDs, Oct. 27, 2005, available here.
[2] Id.
[3] Id.
[4] We discussed Mr. Guthrie’s return here.
[5] See US Department of Justice, Press Release: Defendant Faces 18-Count Indictment in First Joint Criminal Intellectual Property Investigation by United States and China, Oct. 25, 2005, available here.
[6] We discussed the Donna flea market raid here.
[7] See, e.g., Martin Crutsinger, U.S. Presses China on Piracy Action, Houston Chronicle, Oct. 26, 2005, available here.

McNabb in the News

Senior Principal Douglas McNabb was quoted in an article discussing the length of time it might take for Frederick Russell to be extradited from Ireland—if he is at all.

Douglas McNabb is a Washington, D.C.-based attorney whose firm specializes in extradition cases. He doesn't believe the Russell case poses any special challenges. "I think if the U.S. request, pursuant to the treaty, is properly drafted and filed with Ireland, we ought to be able to get the gentleman back to the states," McNabb said.

There is nothing in the treaty that would appear to make Russell's case difficult, unless he is married to the woman he lives with in Ireland, McNabb said. That could complicate the case, he said.

Russell's status as an illegal alien in Ireland should also make it easier to extradite him, McNabb said. Hopkins said Monday there is no record that Russell legally entered that country after flying to England.^[1]

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[1] Nicholas K. Geranios, Russell Extradition Fight May Take Years, Associated Press, Oct. 26, 2005.

Trafficking in Persons—Acquittal

A Toronto man accused of trafficking in persons has been acquitted in Buffalo, New York.^[1] Smedley Prescod was arrested in January and was accused of accepting $4,000 to arrange for an illegal alien to enter the United States in the summer of 2004.^[2] The government alleged that Mr. Prescod arranged a raft trip which ferried eight illegal aliens across the Niagara River; the jury, however, determined that there was no solid evidence that Mr. Prescod did so.^[3]

Mr. Prescod was charged under 8 U.S.C. § 1324(a)(1)(A)(i) which states that it is a crime for a person to bring a person known to be an alien into the United States at a place other than a designated port of entry. The punishment for violating this section for private financial gain is a fine, imprisonment for up to 10 years, or both.^[4]

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[1] Toronto Man Acquitted of Human Trafficking, BuffaloNews.com, Oct. 26, 2005, available here.
[2] Id.
[3] Id.
[4] 8 U.S.C. § 1324(a)(1)(B)(i).

McNabb in the News

Senior Principal Douglas McNabb has been quoted in an article about the extradition proceedings facing Frederick Russell.

Douglas McNabb is a Washington, D.C.-based attorney whose firm specializes in extradition cases. He doesn’t believe the Russell case poses any special challenges.

“I think if the U.S. request, pursuant to the treaty, is properly drafted and filed with Ireland, we ought to be able to get the gentleman back to the states,” McNabb said.

There is nothing in the treaty that would appear to make Russell’s case difficult, unless he is married to the woman he lives with in Ireland, McNabb said. That could complicate the case, he said.

Russell’s status as an illegal alien in Ireland should also make it easier to extradite him, McNabb said. Hopkins said Monday there is no record that Russell legally entered that country after flying to England.^[1]

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[1] Nicholas K. Geranios, How Soon Might Fugitive Frederick Russell be Extradited?, Associated Press, Oct. 25, 2005.

Trafficking in Antiquities—J. Paul Getty Museum

The J. Paul Getty Museum is under fire again for having antiquities that have been stolen.^[1] This time, it is Greece that is claiming that four artifacts in the museum’s collection were stolen from that country.^[2] Purchased in 1993, a gold funerary wreath, an inscribed tombstone, and a marble torso, all of which date from about 400 BC, are at the center of the controversy.^[3] A fourth artifact, an archaic votive relief purchased in 1955 by J. Paul Getty himself, is also wanted by the Greek government.^[4] All artifacts were allegedly stolen from Greece.

Nine years ago, the Greek government lodged a complaint to have the wreath, tombstone, and torso returned, and they formally renewed the request in May through diplomatic channels; officials in Los Angeles claim that they informed the Getty Museum before it purchased those artifacts that they “almost certainly had been looted and smuggled out of Greece.”^[5]

These accusations come at an unfortunate time for the museum as it deals with allegations from Italy that some antiquities in its collection were stolen from that collection. Greek officials, however, acknowledge that “they lack the kind of hard evidence that their Italian counterparts have used to launch a far-reaching criminal case aimed at stopping the international traffic in smuggled antiquities.”^[6]

We have previously discussed the J. Paul Getty Museum and trafficking in antiquities here.

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[1] Ralph Frammolino et al., Greek Officials Demand the Return of Getty Antiquities, L.A. Times, Oct. 24, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.

Oil-for-Food Scandal—American Indictment

This Summer, a great amount of attention was paid to the Cypriot citizen, Benon Sevan, and the Russian citizen, Alexander Yakovlev, for their alleged roles in the UN’s Oil-for-Food Scandal.^[1] Over this weekend, it came to light that Americans have been indicted for their role in the scandal. The flamboyant and legendary Houston oil tycoon Oscar Wyatt Jr., along with two other individuals, has been indicted for allegedly paying millions of dollars in illegal kickbacks to purchase oil from Saddam Hussein.^[2] Mr. Wyatt is accused of funneling cash to front companies and bank accounts “controlled by the deposed Iraqi strongman’s government.”^[3] He was arrested in Houston, appeared before a US Magistrate Judge, and was released after posting a US$2.5 million bond; he is scheduled to be arraigned in New York this week.^[4]

Mr. Wyatt’s Coastal Corporation is thought to have received the first shipments of Iraqi crude oil under the program starting in 1996.^[5] In 2000, Saddam Hussein apparently decided to require that oil recipients would have to pay a secret surcharge for the privilege of purchasing Iraqi oil.^[6] In addition to the kickbacks, Mr. Wyatt is accused of conspiring with David Chalmers of BayOil to manipulate the selling price of oil sold under the Oil-for-Food regime; their apparent goal was to buy Iraqi oil for slightly less than market price, “allowing them to earn a profit on the sales that covered the cost of the surcharges paid to Mr. Hussein’s government.^[7]

According to the indictment, Mr. Wyatt has been charged with wire fraud, conspiracy and conspiracy to commit wire fraud, acts of terrorism (prohibited financial transactions), and violating export controls under the International Economic Powers Act.

Wire Fraud
We have previously discussed wire fraud here.

Conspiracy and Conspiracy to Commit Wire Fraud
We have previously discussed conspiracy here, and conspiracy to commit wire fraud here.

Acts of Terrorism (Prohibited Financial Transactions)
Under 18 U.S.C. § 2332d(a), it is a crime for a US person, who knows that a country is designated as a country supporting international terrorism, to engage in financial transactions with the government of that country.

The punishment for a violation of section 2332d is a fine, imprisonment for up to 10 years, or both.

International Emergency Economic Powers Act
Under 50 U.S.C. § 1702(a)(1)(B), the President has the authority to “investigate … prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.” Under 50 U.S.C. § 1701, the President has the authority to exercise this power upon declaration of a national emergency. Beginning in August of 1990, and continuing through all the time relevant to the charges, the President had declared Iraq to be a threat and had maintained these emergency economic powers. The part of the International Emergency Economic Powers Act that applies to Mr. Wyatt and his associates is 50 U.S.C. § 1705(b), which states that any person who willfully violates, or attempts to violate, any order issued under the Act can be fined not more than US$50,000, imprisoned for not more than 10 years, or both.

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[1] We have previously discussed Mr. Sevan here, and Mr. Yakovlev here.
[2] David Ivanovich, Texas Oil Mogul Indicted in Scam, Houston Chronicle, Oct. 21, 2005, available here.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.