January 01, 2013

Limiting Liability for Crimes Committed Abroad

“Double jeopardy” has no standard international meaning.

Tyler Hodgson

A South Korean telecommunications provider bribes U.S. Armed Forces officials and is convicted and sentenced by a South Korean court for his crime. Can he later be prosecuted by U.S. authorities for the same offense?

A British sea captain is tried and acquitted for the murder of a fellow captain in South Africa. Can he be subsequently tried for the same offense by the British authorities?

As we will see, the answer is both “yes” and “no.”

In his article elsewhere in this issue, Andrew S. Boutros discusses the increasing frequency of “carbon copy” prosecutions, a term he coined to describe the initiation by two or more jurisdictions of prosecutions based on the same set of operative facts, with the second jurisdiction simply adopting—or “carbon copying”—the facts the corporate or individual defendant admitted in the first jurisdiction’s plea or deferred prosecution agreement.

Committing any crime—bribery included—cannot easily be described as a “good deed.” That said, doing your best to ensure that your client is not repeatedly punished for the same act or wrongdoing can be. After all, as counsel you are not helping anyone escape punishment altogether; rather, you are helping your client avoid excessive, duplicative punishment. To provide sound advice, however, litigators must recognize and adapt to the reality that “double jeopardy” means different things in different countries.

There may be limiting legal principles in countries enjoying concurrent jurisdiction over the same criminal act that would prevent carbon copy prosecutions. One example is the application of a statute of limitations; another is the operation of the double jeopardy doctrine in each respective country.

“Double jeopardy,” it turns out, is not a legal term having an standard international meaning. For example, while the United States has followed one model, Canada and Britain have taken a decidedly different path. When advising a client in relation to a criminal offense that is subject to the jurisdiction of more than one prosecuting authority, it is crucial to know which “version” of double jeopardy applies: Get the answer wrong, and your client’s legal troubles will not end with the first guilty plea.

Crime Is No Longer Only Local

In the not too distant past, lawyers could count on at least one certainty: A client only had to worry about being prosecuted in the country where the crime had actually been committed. Referred to as the “territoriality principle,” it was perhaps most famously summed up in Lord Halsbury’s Victorian-era pronouncement that “[a]ll crime is local.” Barring a cumbersome extradition, if a felon had absconded from the jurisdiction where he or she had committed the crime, chances were that person had also evaded prosecution.

The legal landscape with respect to criminal jurisdiction has changed considerably since Lord Halsbury’s time, especially in the past 25 years.

Following the Second World War, Western legal systems became increasingly receptive to the concept of asserting criminal jurisdiction over defendants in relation to a select group of especially deplorable crimes committed entirely abroad. Such crimes often involved human rights violations. The doctrine of “universal jurisdiction” allowed courts to prosecute individuals for crimes against humanity, regardless of where the crimes physically occurred. Perhaps one of the most celebrated examples of the exercise of universal jurisdiction in recent history involved the 1998 arrest of elderly Augusto Pinochet in London on an arrest warrant issued by the now-notorious Spanish judge, Baltasar Garzón (who, on February 9, 2012, was convicted of illegally ordering wiretapping and suspended from the judiciary).

A client does not have to be the former head of a military junta, however, before you need to be concerned about his or her criminal activity abroad. Nor do the foreign crimes have to involve atrocities or serious human rights violations. Today, the exercise of cross-border justice is a common occurrence.

Somewhere between the two stark extremes of the territoriality principle (you can be prosecuted only where you actually committed the crime) and the doctrine of universal jurisdiction (you can be prosecuted anywhere in the world for committing a particular offense) is a concept allowing countries to assert jurisdiction over their citizens for crimes committed entirely abroad. This “nationality principle” of criminal jurisdiction—which is, in fact, a common feature of civil law legal systems (such as those of France or Germany)—holds that a country can prosecute one of its citizens for criminal activity committed by that citizen anywhere in the world. In short, you can leave your homeland, but your homeland never leaves you.

In the United States, as in Britain and Canada, there are crimes over which the government will assert jurisdiction on a universal basis, such as piracy (consider United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820)), as well under the nationality principle, such as bribery of a foreign public official (consider the Foreign Corrupt Practices Act). As discussed below, because of the U.S. judiciary’s somewhat narrow interpretation of the doctrine of international double jeopardy, any global resolution of a crime over which the U.S. authorities enjoy concurrent jurisdiction must involve the consent and blessing of the American authorities up front. The British and Canadian prosecutors, by contrast, can often be invited to the table last. Consequently, as a general rule, the litigator’s first round of negotiations for multinational offenses must involve American prosecuting authorities.

For international double-jeopardy purposes, British and Canadian courts tend to view verdicts by foreign courts relating to the same crime or conduct as a categorical bar to any further proceedings by domestic prosecutors. As early as 1726, it was recognized under British law that “where a foreign court has jurisdiction, and the persons are within it, the sentence of that Court must bind.” In 1775, Captain Roche was tried in London for the murder of John Ferguson at the Cape of Good Hope. The sea captain had already been tried and acquitted for the same crime in South Africa. In preventing any further prosecution for the same crime in the United Kingdom, the court noted as follows:

It is a bar, because a final determination in a Court having competent jurisdiction is conclusive in all Courts of concurrent jurisdiction. Therefore if A, having killed a person in Spain, were there prosecuted, tried and acquitted, and afterwards were indicted here, at Common Law, he might plead the acquittal in Spain in bar.

Different Countries, Different Models

Under the British common law, as the Captain Roche case illustrates, provided certain preconditions are met, if an accused has already been prosecuted in a foreign court for the same matter or set of facts for which he or she later stands trial, the accused can plead that he or she has already been acquitted (autrefois acquit) or convicted (autrefois convict) for this conduct, as the case may be. If successfully invoked, these special pleas bar any further criminal proceedings by the state.

More recent decisions of the House of Lords, such as that of Lord Diplock in the case of Treacy v. Director of Public Prosecutions, have continued to recognize that the special pleas of autrefois acquit and autrefois convict remain available to an accused whether the prior verdict was delivered “by an English court or a foreign court.

In Canada, on the other hand, the Supreme Court has yet to squarely address the issue of whether the verdict of a foreign court is sufficient to act as a bar to any further prosecution for the same offense. Nonetheless, there is persuasive appellate-level authority that holds that it would. Further, in relation to offenses over which Canada asserts universal jurisdiction, the Canadian Criminal Code explicitly recognizes that the decision of a foreign court over the same factual conduct can bar further proceedings in Canada.

In 2009, Canada was in the process of amending its Corruption of Foreign Public Officials Act to allow for the prosecution of Canadian citizens and companies for bribery crimes committed abroad on the basis of the nationality principle. For reasons that are still something of a mystery but need not concern us here, these amendments were never passed into law. Nevertheless, the government summary for the proposed amendments contained very clear language indicating an intent to adopt the British approach to international double jeopardy:

The new provisions also provide safeguards . . . for a person who has already been tried and dealt with outside of Canada for . . . [the same] act or omission . . . . This addresses the concern that someone could be tried twice for the same offence, once by a court exercising jurisdiction on the basis of territory and once by a court exercising jurisdiction on the basis of nationality.

As we will see, this is precisely what happened to the unfortunate defendant in the case of United States v. Jeong.

The Fifth Amendment to the U.S. Constitution provides in part that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” Focusing on the word “offence,” U.S. jurisprudence created the dual-sovereignty doctrine, which holds that a citizen of the Unites States owes dual allegiance to his or her state government, as well as the federal government. Under the dual-sovereignty doctrine, the same criminal act can violate the “peace and dignity” of these two separate sovereigns, thereby creating two separate and distinct “offences.”

As the now-familiar dual-sovereignty doctrine emerged from its origins in the federalist system, the judiciary has not restricted the application of the doctrine to successive federal-state action. Instead, U.S. courts have applied it wherever two different legislative or law enforcement bodies derive their authority from distinct sources of power. For example, multiple prosecutions for the same transaction have been held not to violate the double-jeopardy principle in the Fifth Amendment for successive state-state prosecutions for the same crime (Heath v. Alabama, 474 U.S. 82 (1985)) or successive federal-Native American tribal prosecutions (United States v. Billy Jo Lara, 541 U.S. 193 (2004)).

Heath provides perhaps one of the most poignant illustrations of the application of the dual-sovereignty doctrine, permitting successive prosecutions for the exact same criminal conduct. The defendant, who lived in Alabama, hired two men to kill his pregnant wife. His plan succeeded (at least in part). Her body was discovered in a car in the neighboring state of Georgia.

A Georgia grand jury indicted Heath for the crime of “malice” murder, and notice was served that the prosecution intended to seek the death penalty. The defendant entered a guilty plea with the State of Georgia in exchange for receiving a sentence of life imprisonment. As you probably have guessed, this was not the end of Heath’s problems.

Approximately three months later, a grand jury in Alabama indicted Heath for capital murder (murder during a kidnapping). Compounding Heath’s woes was the fact that some 75 of the 82 prospective jurors were already aware that Heath had previously entered a guilty plea for the same crime in Georgia. Clearly, Heath was facing an uphill battle. Not surprisingly, then, Heath was convicted in short order and sentenced to death.

Dismissing his appeal to the U.S. Supreme Court, Justice O’Connor for the majority noted that successive prosecutions are barred by the Fifth Amendment only if the two offenses “are the ‘same’ for double-jeopardy purposes.” Because Georgia and Alabama are two separate sovereigns, the Court reasoned, the two charges of murder cannot be considered the same for Fifth Amendment purposes.

The recent case of United States v. Jeong, 624 F.3d 706 (5th Cir. 2010), provides a no-less-dramatic application of the doctrine of dual sovereignty, but this time in the international context.

United States v. Jeong

In Jeong, a South Korean national was charged and convicted in a South Korean court of bribing two U.S. Armed Forces officials in relation to a procurement contract for telecommunications equipment supplied to U.S. military installations in South Korea. Jeong received a sentence of 58 days of detention and a $10,500 fine.

Later the same year, the United States submitted a formal request for evidentiary material under the Mutual Legal Assistance Treaty between the two countries, assuring the South Korean government that it was “not seeking to further prosecute Jeong.” When Jeong, living in South Korea, later requested payment from the U.S. Armed Forces for money that was owed to another of his companies, he was invited to travel to the United States to negotiate any outstanding claims. Over the objections of the South Korean government, Jeong was promptly arrested upon arrival. He ultimately was sentenced to five years of imprisonment and a $50,000 fine. In dismissing his claim that the double-jeopardy doctrine prohibits successive prosecutions by different nations for the same conduct, the Fifth Circuit Court of Appeals noted that Jeong’s claim would not succeed in a domestic context and that there was no reason to deviate from established Fifth Amendment jurisprudence in the international context.

It is at some level counterintuitive to think that the doctrine of double jeopardy may not protect a party who has already been tried by a court of competent jurisdiction (whether domestic or foreign) against subsequent prosecutions for the exact same criminal conduct. Certainly, the traditional common-law position and the one maintained by Canada and the United Kingdom is that the principle of double jeopardy would effectively bar successive prosecutions for the same crime.

The lesson for litigators advising a client on a potential resolution of a crime where the United States enjoys potential concurrent jurisdiction is that counsel must always think a few steps ahead. Counsel must ask himself or herself whether the United States will likely seek to assert jurisdiction: If the United States is not a party to the global resolution, then there can be no finality to the settlement. Put simply, where multiple competing claims of jurisdiction exist for the same transaction, excluding the American authorities from consideration only runs the risk that a party will, in fact, be placed in double jeopardy.

To avoid this risk litigators must ask themselves the following questions when dealing with a crime committed abroad:

  1. What are the possible ways a country could assert jurisdiction over the defendant? Which countries enjoy potential jurisdiction (the territoriality principle, nationality principle, or universal jurisdiction being the most common)?
  2. Do the countries follow the British model of international double jeopardy or the American model of double jeopardy?

Answering these questions before engaging in a global or local resolution will ensure that your client receives finality when entering a settlement agreement.

Tyler Hodgson

The author is a partner with Borden Ladner Gervais LLP, Toronto.