Integrity Legal

Posts Tagged ‘Criminal Law’

12th April 2011

It recently came to this blogger’s attention that a 9th circuit decision in the United States Federal Court System regarding issues associated with the 4th Amendment as well as issues which could impact American agencies such as the United States Customs and Border Protection (USCBP) Transportation Security Administration (TSA) and the United States Immigration and Customs Enforcement Service (USICE, but sometimes referred to simply as ICE) has been handed down.  To quote directly from a recent article posted on Yahoo News at Yahoo.com:

If you can’t let a day go by without accessing your personal data and files, you’d better think twice about crossing the border back into the U.S. with your computer.  That’s because digital devices such as a laptop computer can be seized at the border without a warrant and sent to a secondary site for forensic inspection.

That ruling from the U.S. Court of Appeals for the Ninth Circuit last week is the second in less than a year that allows the U.S. government to conduct offsite searches of digital devices seized at the border without a warrant, Network World reported.

This could have big implications for business travelers, in particular, who are increasingly mobile and frequently carry laptops and other digital devices containing sensitive personal and company information across our borders. If your data reveals traces of criminality or illegal kinkiness when examined, your troubles will go way beyond temporary data denial.

This blogger has yet to take a great deal of exception with regard to American policy regarding the 4th Amendment at Ports of Entry in the United States of America as most occurrences that this blogger deals with in connection to such matters involve those who are not American Citizens, or for that matter sometimes not even lawful permanent residents or non-immigrants. Therefore, due to the wide latitude granted to Congress under their plenary authority regarding matters touching upon non-US Citizens and immigration policy it is difficult for this blogger to make cogent hypothetical arguments for people who have few, if any, rights under the American legal system. That said, when it comes to the search and seizure of American Citizens it is clear that Constitutional protections of Americans’ liberties must be taken into zealous consideration. The aforementioned article continued on Yahoo.com:

Writing for the majority, Judge Richard Tallman said, “The border search doctrine is not so rigid as to require the United States to equip every entry point — no matter how desolate or infrequently traveled — with inspectors and sophisticated forensics equipment.”

The administration of this blog highly encourages all readers to click upon the above cited hyperlinks to read more from this thought provoking story.

This blogger does not particularly take exception with the notion of the so-called “border search doctrine” per se, but this blogger has always felt as though little consideration has been accorded to the notion of the rights, privileges, and immunities of both United States Citizenship as well as underlying State Citizenship (if applicable to the individual being legally analyzed as some individuals come by their United States Citizenship either through operation of law or naturalization).

With all due respect to this Court as their decision had to be made pursuant to the unique set of law and facts available under the circumstances, this blogger’s “hackles get raised” anytime the issues associated with the fundamental rights, privileges, and immunities of United States Citizenship are at issue. Therefore, in order to shed more light upon this subject to the readership of this blog this blogger felt it might be enlightening to note some language from the introduction of the dissent in this case as quoted directly from Judge Betty B. Flecther:

I respectfully dissent. The “sticking point” of this case is not whether the Government’s authority “to subject incoming travelers to inspection for entry also permits the Government to transport property not yet cleared for entry away from the border to complete its search.” Maj. Op. at 4219-20. The real issue, as this case is framed by the government and the majority, is whether the Government has authority to seize an individual’s property in order to conduct an exhaustive search that takes days, weeks, or even months, with no reason to suspect that the property contains contraband.[1] In other words, the problem with this case is not that the Government searched Cotterman’s computer in Tucson as opposed to Lukeville. The problem is that the Government seized Cotterman’s laptop so it could conduct a computer forensic search, a time consuming and tremendously invasive process, without any particularized suspicion whatsoever. [emphasis added]

Those reading this blog are highly encouraged to click upon the links above to read the entire opinion as posted on Google Scholar.

Clearly, the ruling in this case could have a dramatic impact upon those individuals traveling in or through the United States of America. That said, it remains to be seen whether or not this case sees appeal to the United States Supreme Court and should such an appeal be heard: the opinion thereof.

For related information please see: Arrest Warrant.

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14th September 2010

When Americans are arrested abroad it is a serious issue. Many nations do not have the same legal procedures as the United States. Therefore, the protocols under which an American is tried for a criminal offense abroad can be very different from the rules for charging and prosecuting an individual with a crime in the USA. Fortunately, the American State Department provides assistance to those US Citizens who have been arrested and/or incarcerated overseas. The following is quoted directly from the US State Department website:

DISCLAIMER: THE FOLLOWING IS A SUMMARY OF SERVICES PROVIDED TO U.S. CITIZENS ARRESTED ABROAD BY U.S. CONSULAR OFFICERS. SINCE CONDITIONS VARY FROM COUNTRY TO COUNTRY, THE PRECISE NATURE OF SERVICES MAY VARY LIKEWISE, DEPENDING ON INDIVIDUAL CIRCUMSTANCES IN A PARTICULAR CASE.

SUMMARY: One of the most essential tasks of the Department of State and of U.S. embassies and consulates abroad is to provide assistance to U.S. citizens incarcerated abroad. The State Department is committed to ensuring fair and humane treatment for American citizens imprisoned overseas. We stand ready to assist incarcerated citizens and their families within the limits of our authority, in accordance with international law. We can and do monitor conditions in foreign prisons and immediately protest allegations of abuse against American prisoners. We work with prison officials to ensure treatment consistent with internationally recognized standards of human rights and to ensure that Americans are afforded due process under local laws.

There is little doubt that American Consular Officers provide a tremendous amount of assistance to American Citizens imprisoned or arrested abroad. However, it should be reiterated that Americans traveling abroad may not be subject to familiar laws and regulations. Therefore, prior research of a given nation’s legal system may provide the intending traveler with some insight into the legal system of the country or countries where they may be staying while outside of the USA. To quote the aforementioned website further:

While in a foreign country, a U.S. citizen is subject to that country”s laws and regulations, which sometimes differ significantly from those in the United States and may not afford the protections available to the individual under U.S. law. As our Country Specific Information explain, penalties for breaking the law can be more severe than in the United States for similar offenses. Persons violating the law, even unknowingly, may be expelled, fined, arrested, or imprisoned. Penalties for possession, use, or trafficking in illegal drugs are strict, and convicted offenders can expect jail sentences and fines. If arrested abroad, a citizen must go through the foreign legal process for being charged or indicted, prosecuted, possibly convicted and sentenced, and for any appeals process. Within this framework, U.S. consular officers provide a wide variety of services to U.S. citizens arrested abroad and their families.

There are a number of services that US Consular Officers can provide, but there are a significant number of areas where US government personnel cannot provide assistance as it may be prohibited by law. To again quote the DOS website:

A consular officer cannot :

- demand the immediate release of a U.S. citizen arrested abroad or otherwise cause the citizen to be released.

- represent a U.S. citizen at trial, give legal advice or pay legal fees and/or fines with U.S. Government funds.

These disclaimers are important to note as many Americans are under the mistaken impression that American Consular Officers are meant to act in a representative capacity with respect to pending criminal charges overseas. This is simply not the case. Therefore, those arrested and/or incarcerated in a foreign country are well advised to contact either a foreign attorney or an American attorney abroad in an attempt to gain insight into one’s options with regard to pending foreign criminal charges. Furthermore, depending upon the country, it may be possible for an American Citizen to arrange for bail. This at least allows the American to be released while awaiting an adjudication on the merits of a pending case.

The issue of foreign criminal charges should not be confused with the issue of pending American criminal charges or a pending arrest warrant. If one has a pending warrant from the United States, then it may be necessary to contact an American attorney in order to ascertain one’s options with regard to both the warrant as well as the underlying case in order to make informed decisions about resolving the matter in a legally acceptable manner.

For related information please see: Warrant For My Arrest.

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21st August 2010

The New York Times website reported the following:

BANGKOK — Viktor Bout, a Russian businessman who is expected to face gun-running charges in the United States following his extradition from Thailand, expressed confidence on Friday that he would ultimately be exonerated.

Those who are unfamiliar with this case may remember an American film which is supposedly based upon Mr. Bout’s life. The aforementioned article went further to note that:

Mr. Bout, who inspired the movie “Lord of War,” starring Nicolas Cage, is suspected of running a large-scale trafficking organization that provided weapons to governments, rebels and insurgents across the globe.

As a general rule, international extraditions in cases which are covered heavily by the media can be exceptionally tense especially where two different countries wish to see differing outcomes. In this case, the extradition request could be viewed as highly complex, both from a legal as well as political standpoint, and this proceeding would seem to represent an important achievement for American officials as the article went on to observe:

The court decision on Friday… was a victory for the Obama administration, which summoned the Thai ambassador in Washington to the State Department this week to “emphasize that this is of the highest priority to the United States,” a spokesman said. “There have been a lot of conversations of senior administration officials with their Thai counterparts about this,” said one American official, who spoke on condition of anonymity after staying up until 2 a.m. awaiting the news from Bangkok. American officials had feared that Russian pressure would prevail and Mr. Bout might be flying home. “This really was a welcome surprise,” the official said of the court’s decision.  Russia, which had been seeking to prevent Mr. Bout from being placed in the American legal system, reacted angrily. “We regret what, in my view, is an illegal political decision taken by the appellate court in Thailand,” Sergey V. Lavrov, Russia’s foreign minister, said Friday, according to the Interfax news agency. “Based on the information we have at our disposal, the decision was made under very strong outside pressure. This is lamentable.”

The United States of America and the Kingdom of Thailand share a long and amicable relationship as the two countries have a history of friendly bilateral political and economic relations. One of the foremost examples of this relationship is the US-Thai Amity Treaty. That said, the recent decision would seem to have be made on legal grounds and not based upon political considerations. However, not everyone was happy to hear the Thai court’s decision:

After the ruling, Mr. Bout embraced his wife and daughter, who wept. He said nothing to reporters in the courtroom as he was led out in leg irons. The court ordered his extradition within three months… Mr. Bout’s lawyers had argued that the extradition request was part of a pattern of the United States’ reaching beyond its borders to punish its enemies. Chamroen Panompakakorn, Mr. Bout’s principal lawyer, alluded to the rendition of terrorist suspects by the American government and argued that the overall credibility of the United States government had been tarnished after the failed search for unconventional weapons in Iraq.

Regardless of one’s opinion about the decision itself, this case may represent a major milestone in international jurisprudence as the Kingdom of Thailand, the United States of America, and many other jurisdictions around the world continue to work together to bring international and multi-jurisdictional criminal suspects before lawful tribunals in both the USA and abroad. Extradition represents one area of international criminal law where cross border cooperation by authorities is leading to apprehension of suspected criminals all over the globe. In another posting on this blog, the issue of Royal Thai Immigration‘s decision to connect to American warrant databases was discussed. In an increasingly “globalized” world, it is becoming evermore difficult for international criminal suspects to evade government authorities. Meanwhile, American authorities’ efforts to apprehend those with an American criminal warrant, fugitive warrant, bench warrant, or arrest warrant continue unabated. Those who find that they have an outstanding American warrant are well advised to seek the assistance of competent counsel in the form of a licensed American attorney in order to deal with the matter in accordance with all applicable laws.

For further related information please see: Warrant For My Arrest.

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