The Volokh Conspiracy

A district court recently ruled that Congress’s power to “Define and Punish... Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

American courts routinely enforce foreign money judgments; this is needed for international business, and it also avoids the injustice that might happen if someone flees, say, Canada or Germany with assets that he owes to someone, and that he otherwise couldn’t be required to pay. At the same time, it’s also unjust if American courts are used to enforce a foreign money judgment that was entered using procedures or implementing substantive rules that we see as sufficiently unfair. Yet how are American courts to figure out whether some relatively little-know foreign judicial system is fair enough? Here’s an example of one court struggling with this, Manco Contracting Co. v. Bezdikian (Cal. Ct. App. Jan. 11, 2003):

Manco is a construction and engineering company operating in Qatar. In the mid-1980’s, Bezdikian, who had cofounded Manco with Qatari citizen Omar Al-Mana, owned 40 percent of the company and Al-Mana owned 60 percent. By 1988, the relationship between Bezdikian and Al-Mana soured and Bezdikian left Qatar never to return.... After leaving Qatar, Bezdikian eventually settled in Los Angeles county.

In 1991, Manco sued Bezdikian in Qatar’s civil courts alleging Bezdikian had embezzled company funds. Bezdikian cross-complained against Manco by which he sought an accounting and Manco’s dissolution. The Qatari court consolidated the two suits and in 1997 entered judgment for Manco. Bezdikian appealed to the Qatari appellate court. In 2000, the Qatari appellate court entered a final judgment for Manco for 13.69 million riyals, which at then-current exchange rates was about 3.76 million dollars.

In 2004, Manco filed in Los Angeles Superior Court a complaint for “Domestication of Foreign Money Judgment” seeking to render the Qatari judgment a judgment enforceable in California under the former Uniform Foreign Money-Judgments Recognition Act. Following a bench trial, the trial court entered its judgment domesticating the Qatari judgment in the amount of $3,760,274.64....

The Uniform Foreign Money-Judgments Recognition Act requires that a foreign judgment be “conclusive” before a California trial court may domesticate the judgment to make it enforceable in California. (§ 1713.2.) To be conclusive, the foreign court that issued the judgment must be part of an impartial judicial system that provides due process. Section 1713.4, subdivision (a)(1) states: “A foreign judgment is not conclusive if [t]he judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” The foreign tribunal’s procedures need not mirror California’s procedures. But the tribunal must follow a “fair procedure [that is] simple and basic enough to describe the judicial processes of civilized nations.” (Cf. De la Mata v. American Life Ins. Co. (D.Del. 1991) 771 F.Supp. 1375, 1389-1390 [“it appears the impartiality criteria only comes into play where a plaintiff seeks to enforce a money judgment from a country whose foreign policy manifests express hostility to the United States and whose jurisprudence has been molded to reflect that hostility”].)

The trial court found Bezdikian offered no persuasive evidence that bias against him infected the Qatari proceedings and denied him due process. Bezdikian’s principal expert on the Qatari judicial system, Joseph Kechichian, opined that Qatar’s judiciary favored Muslim citizens such as Manco’s majority owner, Al-Mana, over non-Muslim foreigners such as Bezdikian, but the court found Kechichian’s opinions unpersuasive. Kechichian based his opinion about the purported bias of the Qatari legal system by applying his “common sense” to his knowledge of Qatar drawn from his study of the country and personal observations during visits there.

But the court rejected Kechichian’s opinion. The court stated it was “not persuaded by Mr. Kechichian’s speculative, equivocal, conditional, and unsupported opinions that non-Qatari citizens like Bezdikian may not ... be able to get a fair trial in Qatar against Qatari citizens. Mr. Kechichian had no observational, statistical, or even anecdotal data or evidence that there actually is such bias, either in general or in this kind of case. Mr. Kechichian also stated that he had no information that any of the judges who heard the lawsuits between Manco and Bezdikian, either in the lower court or on appeal, were biased against Bezdikian.” (See Lauderdale Associates v. Department of Health Services (1998) 67 Cal.App.4th 117, 126 [“the trier of fact may disregard an expert’s testimony and draw its own conclusions from the evidence when the evidence conflicts or the expert’s testimony is rebutted”].)

Bezdikian contends that even if, as the trial court found, the Qatari judges that tried his case were not biased against him, conclusiveness under the Uniform Foreign Money-Judgments Recognition Act requires that Qatar’s entire judicial system be itself impartial. Bezdikian’s contention is unavailing, however, because the record contains substantial evidence to support the trial court’s finding that Qatar’s judiciary is impartial. Qatar’s Constitution promises unbiased governmental treatment of all people. The constitution states, “All persons shall enjoy equal public rights and shall be subject to equal public duties without distinction on grounds of race, sex, or religion.”

Qatar also promises judicial independence by protecting judges from loss of judicial office during the lawful exercise of their duties. Qatari law states: “[J]udges are independent with no authority over them in connection with their rulings except to the law and their decisions are issued and enforced in accordance with the law. ... It is not permissible to remove a judge from his position whether by removal or transfer. In addition, it is not permissible to demote him from his position.” Indeed, the court noted that expert Kechichian conceded that Qatar’s Constitution ensured an impartial and independent judiciary. Kechichian testified “the procedures on the books of Qatar are compatible with the due process of law,” and “the Qatari civil court system and laws are set up and designed to be impartial as to whether or not non-Muslims or noncitizens are treated fairly ....”

Despite expert Kechichian’s concessions about the impartiality of Qatar’s judiciary, Bezdikian offered evidence of bias by the Qatari judicial system against non-Muslim foreigners. According to Kechichian, the system was fair only in theory because it was “not impartial or fair as put into practice.” Kechichian had visited Qatar about two dozen times in some 30 years. Based on his visits and his study of the country, he testified about the political, historical, and cultural forces that he believed generated an antiforeigner bias. He noted that most Qatari judges were foreign nationals who held their permits to reside in Qatar at the government’s pleasure. Because the government could revoke the residency permits, Kechichian reasoned that judges would tend to rule in favor of Qatari citizens in order to remain in the government’s good graces.

Kechichian’s testimony created a conflict in the evidence which the court resolved against Bezdikian. The court acknowledged Kechichian’s expertise about Persian Gulf nations was “extensive and impressive.” He had worked at the Rand Corporation with top-secret security clearance between 1990 and 1996 writing reports and supplying information about Qatar to the CIA, United States Department of State, and Pentagon.

But the court noted that his expertise was as a political scientist, not a lawyer, and his opinion about Qatar’s legal system was limited to the years before 1995, a point Bezdikian emphasized during cross-examination. “Q. ... [Y]ou told me in your deposition you only intended to give your expert opinion in this case about the country of Qatar and its laws; right? A. Right. Q. And your opinions about the Qatar legal system are limited to before 1995; correct? A. Correct.” Here, however, both the initial trial and the appeal took place in 1997 and 2000, which undercut the significance of Kechichian’s pre-1995 opinions. Moreover, the court noted that Kechichian could not cite any specific acts of judicial discrimination against Bezdikian.... Because we as a reviewing court do not reweigh the evidence, and must resolve all conflicts in the record in favor of the trial court’s findings, Bezdikian’s contention fails that the trial court erred in finding the Qatari judgment was “conclusive.”

The court also upheld the trial court’s decision to exclude the U.S. State Department’s Country Reports as hearsay, and also added that “the [trial] court noted the reports focused mostly on human rights in Qatar and Qatar’s Islamic Shari’a courts, not its civil courts in which the parties tried their case, and thus did not overcome the evidence of Qatar’s impartiality in its civil justice system.”

Several months ago, the South Dakota Legislature enacted this law:

No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.

My question: What exactly does it mean to “enforce any provisions of any religious code”? If the law is (A) limited to barring courts from enforcing religious law because it’s religious law (e.g., “because the defendant is a Muslim, we will apply Islamic law to him”) or from interpreting contracts or wills that call for application of religious law (e.g., “interpret this prenuptial agreement according to Jewish law”), then I suspect that the law is merely duplicative of existing law. Courts already can’t enforce religious law just because it’s religious law, or interpret religious law even when interpreting an contract or a will (though there’s some dispute about that).

But if the law (B) bars courts from enforcing statutes that mirror a religious prohibition, foreign laws that mirror a religious prohibition, or terms in contracts or wills that mirror a religious prohibition, then it would be much broader: It would, for instance, invalidate wills that provide that each son inherit twice what each daughter inherits, when that’s intended to follow Islamic law. It would invalidate contracts that are structured in order to comply with Islamic law prohibitions on paying interest. It would invalidate contracts or covenants that bar the sale of alcohol on certain property, when that’s intended to follow either Christian beliefs (to the extent that they are seen as forming a “religious code”) or Muslim beliefs.

It would render unenforceable contracts that provide that disputes be resolved using religious arbitration, whether Christian or Jewish, if those contracts are intended to follow perceived Christian or Jewish religious obligations not to have one’s disputes resolved by outsiders. And it might render invalid foreign divorces that were entered by Sharia courts, as they are both in countries that generally follow Sharia and also in countries (such as Israel, India, and Lebanon) that follow the millet system, under which family law matters are handled by the religious courts of the religion to which the family belongs. (Or would such recognition of foreign divorces not constitute enforcement of the legal system that created them?)

I’m inclined to think that the most sensible interpretation of the provision, both based on its text and its consequences, is the one I label (A); but the trouble is that this might well make the law entirely redundant of existing law. So I wanted to get readers’ sense — do you think the law should be read under interpretation (B), or perhaps under some third interpretation? I ask partly because I’ll be giving a talk on this general subject in a couple of months, and possibly writing an article on it as well.

UPDATE: Some commenters suggested that I look at the discussion of the law in the South Dakota Legislature. I’m not sure how much weight such discussions should have, given that they at most reveal the views of the few legislators who have spoken, and for that reason some judges refuse to pay attention to such floor statements altogether, and others pay little attention to them (though still others sometimes pay a good deal of attention to them).

This having been said, I did look this up — audio of South Dakota legislative hearings is fortunately available online — and here’s what I saw from the Representative who introduced the law, Roger Hunt: (1) Part of the purpose of the bill is to codify a South Dakota Supreme Court decision (Wipf v. Hutterville Hutterian Brethren) — and U.S. Supreme Court decisions along the same lines — that courts generally can’t interpret religious doctrine in resolving disputes, especially intrachurch disputes. (2) Another part is “to deal with what I’m going to say generally has been referred to as Sharia Law.” (3) The law is not supposed to limit religious arbitration, or presumably the enforceability in secular courts of the decisions of religious arbitral tribunals. Here’s a relevant quote on the Sharia question, from the House Judiciary hearing:

[2:30:15] Part of the purpose of 1253 is to deal with what I’m going to say generally has been referred to as Sharia Law.... [2:31:02] [O]ur code does address how we treat foreign laws, but it obviously doesn’t take care of all issues and all questions, and so 1253 will in essence accomplish, in my opinion, two things — it helps to codify the decision of the Supreme Court [essentially holding that courts may not interpret religious law in resolving church disputes] and secondly, it also gives us the provision needed to in essence deal with religious codes that might be sought to be utilized and enforced in the State of South Dakota. I want to emphasize the fact that we have purposely left out reference to arbitrator and arbitration, because we want any religious groups to be able to utilize that type of mechanism in order to resolve their responsibilities within their particular group.