USA v. Julio Leija-Sanchez. (09-2672).
An indictment returned in 2007 alleges that Julio Leija-Sanchez was the kingpin of an organization that produced fraudulent Social Security cards, driver's licenses, green cards, and other documents for aliens living in the United States unlawfully. The prosecutor believes that the organization generated revenues exceeding $2.5 million a year.
The indictment alleges that many of the organization's employees and future customers were recruited in Mexico and smuggled into this country. Leija-Sanchez moved to dismiss Count III, which charges him with violating 18 U.S.C. §1959 by arranging and paying for the murder of Guillermo Jimenez Flores (known as Montes), a former employee who had gone into competition with his organization. Assassins in LeijaSanchez's employ found Montes in Mexico and killed him there. Montes was a Mexican citizen; so are the assassins.
The district court dismissed this count, concluding that §1959 does not apply extraterritorially. The United States has appealed under 18 U.S.C. §3731. Meanwhile the rest of the criminal prosecution is in abeyance.
The prosecutor relies on United States v. Bowman, 260 U.S. 94 (1922), for the proposition that criminal statutes apply even when one or more elements occurs abroad or on the high seas. Leija-Sanchez contends that Bowman is no longer good law, in light of EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) (Aramco), and other decisions establishing a presumption that civil statutes do not apply to activity outside the United States.
Civil decisions such as Aramco cannot implicitly overrule a decision holding that criminal statutes are applied differently. The main reason for requiring a clear legislative decision before applying a civil statute to activity outside our borders is that nations often differ with respect to acceptable conduct. See 499 U.S. at 248.
Nations differ in the way they treat the role of religion in employment; they do not differ to the same extent in the way they treat murder. They may use different approaches to defenses, burdens of proof and persuasion, the role of premeditation, and punishment, but none of these is at stake here. It is not as if murder were forbidden by U.S. law but required (or even tolerated) by Mexican law. The crime in Bowman was fraud; the Court observed that fraud was unlawful in all of the places where Bowman's scheme was implemented.
Whether or not Aramco and other post-1922 decisions are in tension with Bowman, we must apply Bowman until the Justices themselves overrule it. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
Bowman does not hold that criminal statutes always apply extraterritorially. It concludes that judges must consider the language and function of the prohibition.
Criminal businesses may be international in scope; the indictment alleges that Leija-Sanchez's organization was. Section 1959 applies to enterprises that engage in or affect "foreign commerce"; this rule cannot be implemented if the existence of activities abroad prevents application of §1959 to those acts and effects that occur in the United States.
Leija-Sanchez assumes that a crime happens in one place only-wherever the last element occurs. The final element of Count III was the murder in Mexico, so on this understanding the crime was "in" Mexico. The view that a crime necessarily has just one situs has its basis in the common law, see Wayne R. LaFave, Substantive Criminal Law §§ 4.2(d), 4.4 (2d ed. 2003), but has been modified by statute.
Suppose Leija-Sanchez had arranged in Illinois for Montes to be killed in Texas. He could have been prosecuted in either state for that offense, because elements occurred in each. See 18 U.S.C. §3237(a). If a crime occurs in the state where it is arranged and paid for when the killing occurs in Texas, it equally occurs in the state where it was planned when the murder is accomplished in Mexico.
Bowman itself shows that the Supreme Court does not use a "last act" rule for defining a crime's location. Likewise here: some of the acts (planning and payment) occurred in the United States, one (the killing) occurred abroad; and the objective (reduced competition for LeijaSanchez's syndicate) was realized in the United States.
The indictment alleges that Leija-Sanchez's conduct took place "in substantial part" in this nation-indeed, all of the conduct ascribed to Leija-Sanchez took place here. And the indictment alleges that the goal of the contract killing was to advance Leija-Sanchez's interests in this country by curtailing competition to his criminal organization. This is not an antitrust case; the United States is not trying to preserve competition in the business of producing bogus credentials, so that aliens can buy phony documents at lower prices. Federal policy is instead to stamp out counterfeit-document mills.
But the principle here is that the United States may redress effects in this nation of conduct abroad still applies. By rubbing out Montes, Leija-Sanchez removed not only a rival (allowing him to charge higher prices for his illegal wares) but also a potential witness in a prosecution such as this one. So we have both significant conduct in the United States and significant consequences here. Applying §1959 to this contract killing does not violate any rule of international law and is compatible with the norms that govern the application of criminal statutes to international criminal enterprises.
Any international repercussions of the decision to prosecute Leija-Sanchez are for the political branches to resolve with their counterparts in Mexico, rather than matters for the judicial branch. That diplomacy has occurred already.
In the end, we conclude that what the parties assumed in Alvarez-Machain-that §1959 applies to a murder in another nation designed to facilitate the operation of a criminal enterprise in the United States-is indeed the law.
For the full opinions visit the 7th Circuit Court of Appeals Web Site
For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.