Representing Foreign NationalsRepresenting 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?Who are these clients?

Who are these clients? 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. JurisdictionII. 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

Maritime Drug Law Enforcement Act Maritime Drug Law Enforcement Act

United States v. Zakharov, 468 F.3d 1171United States v. Zakharov, 468 F.3d 1171 (9(9thth.2006).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 USDefendants 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 USDefendant 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

WANTEDWANTEDWANTEDWANTEDWANTEDWANTEDWANTEDWANTED

Dual CriminalityDual Criminality

�� United States v. KahnUnited 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 USDefendant 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 assistanceII. 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: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:Death Sentence vacated:

� Marquez-Burrola v. State, 2007 OK CR

14 (2007)

� Defense counsel was ineffective for failing to

adequately present mitigation evidence during

defendant's sentencing. Modification of defendant's

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 IssuesIII. 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 IssuesIII. Interpreters and Language IssuesCommon Myths that may account for lack of appreciation of Common Myths that may account for lack of appreciation of

language issues in the criminal justice systemlanguage issues in the criminal justice system

1. 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 IssuesIII. Interpreters and Language Issues

Common MythsCommon 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.

MarquezMarquez--Burrola v. State, 2007 OK CR 14 Burrola v. State, 2007 OK CR 14

(2007)(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 Appellant'stwelve-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 Appellant's 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 ConsequencesIV. 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 ConsequencesIV. 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 ConsequencesIV. Immigration Consequences

� Who affected?

Undocumented waiting for opportunity

Lawful permanent resident aliens

Asylees

Conditional residents

Non-immigrant visa holders

� Important to consider laws

of foreign jurisdiction

� Letters rogatory

� Mutual Legal Assistance

Treaty

V. Foreign EvidenceV. Foreign Evidence

Foreign SovereigntyForeign 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 EvidenceIV. 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)

GovernmentGovernment’’s use of evidence s use of evidence

obtained abroadobtained 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:VI. Cultural Defenses:

Alison Dundes RentelnAlison 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 RentelnAlison 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.”

VII. Sentencing VII. Sentencing

Arguments for Variance:

QUESTIONS???????QUESTIONS???????