This PowerPoint helps students to consider the concept of infinity.
Representing foreign nationals
1. Representing 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
3. 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
4. II. 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
6. United States v. Zakharov, 468 F.3d 1171 (9th.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.
7. Defendants 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
8. Defendant 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
WANTED
9. Dual Criminality
United 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).
10. Defendant 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
11. II. 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)
12. 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.
13. 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.
14. III. 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
15. III. Interpreters and Language Issues
Common Myths that may account for lack of appreciation of
language 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
16. III. Interpreters and Language Issues
Common 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.
17. Marquez-Burrola v. State, 2007 OK CR 14
(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's
twelve-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.
18. IV. 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
19.
20. IV. 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.)
21. IV. Immigration Consequences
Who affected?
Undocumented waiting for opportunity
Lawful permanent resident aliens
Asylees
Conditional residents
Non-immigrant visa holders
22. V. Foreign Evidence
Important to consider laws
of foreign jurisdiction
Letters rogatory
Mutual Legal Assistance
Treaty
23. Foreign 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.
24. IV. 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)
25. Government’s use of evidence
obtained 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.
26. VI. Cultural Defenses:
Alison 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. “
27. Alison 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.”
