The Court of Appeals for the Second Circuit in the recent case of United States vs. Al Kassar set forth legal rules that extradited defendants and their lawyers should find useful.
The defendants in that case argued that U.S. courts had no right to prosecute them because their conduct had little or no connection to the United States. The Court responded:
“Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.”
“The presumption that ordinary acts of Congress do not apply extraterritorially [outside the United States] does not apply to criminal statutes.”
“When the text of a criminal statute is silent as to its [application], intent [can] ‘be inferred from the nature of the offense’.” Conspiracy to kill U.S. officers or employees, drug importation (exportation) and money laundering are such offenses.
A statute, however, cannot be applied extraterritorially if doing so violates basic fairness. In order to apply, “there must be a sufficient connection between the defendant and the United States. . .”
“For non-citizens acting entirely abroad, a [right to prosecute] exists when the aim of the activity is to cause harm inside the United States or to U.S. citizens or interests.” In drug exportation cases, however, the government must also prove that the individual defendant actually knew the drugs were going to the United States, and the defendant must explicitly say so. A defendant cannot simply “plead guilty” and be done with the process. In New York, the defendant admits knowledge in open court. In D.C. and elsewhere the admission is contained in a Statement of Facts that the defendant “adopts”—and usually forgets.
The defendants in the case also argued that even if U.S. laws applied in theory, in practice it was fundamentally unfair to prosecute where the conduct was so far removed from any U.S. interest and where there was no “fair warning” that the conduct exposed them to U.S. criminal prosecution.
The Court answered: “The idea of fair warning is that ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be [prohibited].’ Fair warning does not require that the defendants understand that they could be subject to criminal prosecution in the United States. It is enough that they would reasonably understand that their conduct would subject them to prosecution somewhere.”
That is why U.S. prosecutors in money laundering cases against peso brokers present evidence of newspaper articles and laws in their own countries warning them of the criminality of their activities, as is evidence of coded conversations by peso brokers to show “fair warning.”