Legal & Practical Challenges to Representing Alleged Foreign Narcotics Traffickers
Foreign nationals face several unique challenges when forced to appear in the United States to face allegations that they are narcotics traffickers. Many foreign nationals facing extradition to the United States for narcotics trafficking have been indicted by at least one grand jury. The grand jury process is completely secret, and there is no obligation by the government to inform a foreign national that they have been indicted. Often in such cases the foreign person only finds out about the U.S. indictment upon his or her arrest and the initiation of extradition proceedings. This abrupt interruption into a foreign person’s affairs is the first of several challenges facing defendants in such cases.
Upon indicting an individual, the U.S. government will work with foreign law enforcement to have that foreign national arrested and extradited to the United States. For the past several decades the U.S. government has worked closely with foreign governments to streamline cross-border cooperation in law enforcement and to relax the legal barriers to extradition. In some instances the U.S. government takes the lead and executes law enforcement missions in a foreign country directly. While other methods require more formal extradition arrangements. These efforts have also resulted in the execution of a multitude of Mutual Legal Assistance Treaties (MLAT) and Mutual Legal Assistance Agreements (MLAA) between the United States and foreign governments.
As organized and long-lived institutions, governments have been able to give prosecutors and law enforcement distinct advantages when prosecuting and arresting foreign nationals. These agreements outline how U.S. and foreign prosecutors will share evidence and intelligence, coordinate arrests and detentions, and ultimately extradite a foreign national or forfeit foreign assets to the United States. Defense attorneys in the United States, on the other hand, are usually left working alone with very little law or authority to investigate and defend a foreign national on his or her own home turf. Many countries even have laws that prohibit out-of-country lawyers from performing investigations or taking depositions within their borders. The situation, as currently constructed, lends a helping hand to law enforcement and prosecutors.
Additionally, many people alleged to be foreign narcotics traffickers are also designated by OFAC as specially designated narcotics traffickers (SDNT) or specially designated narcotics trafficking kingpins (SDNTK). Their names therefore appear on the SDN List administered by OFAC. Although the two designations are derived from separate legal authorities, their impact on a foreign national’s ability to obtain legal counsel of their choosing are essentially the same.
All U.S. persons, including defense attorneys, are subject to the prohibitions imposed by OFAC-administered sanctions regulations. These regulations broadly prohibit U.S. persons from engaging in most transactions with persons appearing on the SDN List. In fact, defense attorneys are only allowed to provide certain legal services to foreign nationals appearing on the SDN List because of an exception to the rule. Under both narcotics trafficking-related sanctions regulations, the exception to the law is known as a General License. However, neither general license authorizes a U.S. persons to receive payment for the provision of legal services. U.S. defense attorneys must first request a specific license from OFAC before receiving payment from a person designated as an SDNT or SDNTK.
To OFAC’s credit, the agency tends to issue such licenses for payment rather quickly. However, there is often a broad disconnect between obtaining legal authorization for something and finding banks or financial institutions willing to service a known SDNT or SDNTK. Many foreign banks are hesitant about harming their reputations or later finding themselves under greater scrutiny for banking a known sanctions target.
When a foreign national’s money gets tied up due to sanctions, it unfortunately has a negative impact on their legal case. For example, it can interfere with a foreign national’s ability to choose an attorney of their liking if a bank refuses to send money or limits how much money it is willing to send on behalf of a sanctions target. It can also make it difficult to hire experts on behalf of a foreign national, such as investigators and mitigation specialists. The impact on a client’s case can therefore be measurable.
Some defense attorneys may not even know about the requirements imposed by OFAC. When that happens, the defense is attorney is putting themselves and their client’s money at risk. Without authorization from OFAC, any funds within the United States or in the possession of a U.S. person must be blocked if an SDNT or SDNTK has a cognizable interest in such funds. As such, without a specific license, an attorney is both in violation of the law and required to block the funds he or she received.
Furthermore, when OFAC issues a license to a defense attorney authorizing the attorney to be in receipt of funds from an SDNT or SDNTK, that authorization is narrowly tailored to cover only receipt of such funds and to reimburse expenses. The specific license does not authorize the attorney to send the money to another attorney or to return the money if the client later decides to change attorneys mid-representation. Such barriers interfere with the ability of foreign nationals to benefit from smooth and seamless transitions of legal representatives of their choosing.
Foreign nationals finding themselves facing indictment, extradition, and/or sanctions may benefit from engaging the services of a law firm that can streamline all three processes. Our firm has experienced defense attorneys who have represented clients charged with complex narcotics trafficking conspiracies. The firm also has deep experience with handling complex OFAC sanctions issues. As such, a single license may be obtained authorizing the firm to use all of its resources on behalf of a client in-house. This combination of in-house experience may help foreign nationals mitigate hardships associated with being indicted, extradited, or sanctioned.
Disclaimer: Blog posts should not be relied upon as legal advice and are only provided for informational purposes. Information contained in blog posts may also become outdated with the passage of time as laws change and U.S. foreign policy and national security objectives evol