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Strategies for Advising Foreign Clients As DOJ Pursues Extraterritorial Criminal Cases
Recent developments suggest that the U.S. Department of Justice (DOJ) will continue to pursue extraterritorial criminal cases in connection with the government's broader programmatic goals. For example, as the private sector works to implement sanctions recently imposed in response to Russia's invasion of Ukraine, prosecutors will likely seek to investigate violations of those measures and efforts to evade them by foreign actors, including in the cybersecurity and cryptocurrency spaces. Foreign targets are also likely part of the "robust pipeline" of the Foreign Corrupt Practices Act (FCPA) cases referenced by senior DOJ official Nicholas McQuaid in January 2022. As DOJ looks abroad to support the Biden Administration's national security and criminal justice objectives, the defense bar will continue to be called upon to advise foreign clients, with assistance from local counsel, on risks related to arrest and extradition (as well as the substance of the investigations). This article addresses some issues to consider, including foreign arrest procedures, contesting extradition, and engaging with prosecutors before a defendant arrives in the United States.
Foreign Arrest Procedures
DOJ initiates many foreign arrests by seeking provisional arrest warrants through INTERPOL or diplomatic channels, and then pursuing extraditions pursuant to existing treaties after the defendant is in foreign custody. Nevertheless, lawyers evaluating the possibility of foreign arrest in connection with a U.S. prosecution should be sensitive to the fact that DOJ can coordinate arrests in countries where there is no bilateral treaty. In June 2020, DOJ secured the arrest of Venezuelan national Alex Saab in Cabo Verde despite the absence of such an agreement. The United States relied principally on the U.N. Convention Against Transnational Organized Crime. After extensive litigation, Cabo Verde transferred Saab to the United States to face international money laundering charges.
The possibility of arrest while transiting an airport in another country, including pursuant to a DOJ-initiated lure operation, also merits consideration. DOJ's Justice Manual describes lures as "using a subterfuge to entice a criminal defendant" to travel to a country that is more favorable to the United States. A lure operation can result in extradition from the lured-to country, and these government actions are difficult to challenge after a defendant arrives in America. In 2018, the United States appears to have lured Chinese national Yanjun Xu to Belgium from China, which has no extradition treaty with the United States. Belgian authorities extradited Xu, and he was convicted in the United States of espionage and trade secrets offenses in 2021.
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