09 Jan Double Jeopardy and Crimes Committed Abroad
Jivan Yakoob is a Canadian citizen who is a permanent resident living in Michigan. According to the indictment, Yakoob went online and arranged to meet with a thirteen-year-old girl in Windsor, Ontario to have sex with her. It’s a sting operation, of course, and when Yakoob arrived at the shopping mall in Canada he was arrested. He pled guilty to various crimes in Canada. He also was indicted by a federal grand jury in Michigan for violating 18 U.S.C. 2423(b), which provides that “…an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.”
Yakoob raises several objections including a double jeopardy claim under the Fifth Amendment. The Eastern District of Michigan in United States v. Yakoob, 2008 WL 62499, dismissed the argument with almost no discussion, simply stating that “[u]nder the the dual-sovereign doctrine … the double jeopardy clause does not apply to suits by separate sovereigns, even if both are criminal suits for the same offense.”
Wait a minute. I’m not a criminal law expert, but a little research reveals that the dual-sovereignty doctrine is all about federalism. Typically the concern is about cooperative federalism in situations where state and federal authorities have concurrent jurisdiction over the crime. Both federal and state authorities have sovereignty over crimes committed in the United States, and therefore the dual sovereignty doctrine balances the defendant’s right against double jeopardy with the overlapping authority of the state and federal governments.
But this case raises unusual issues of dual sovereignty and double jeopardy. The only reason that Yakoob is subject to the double jeopardy problem is because the United States has imposed extraterritorial criminal penalties for crimes committed by Canadians in Canada. It’s much harder to argue that both Canada and the United States have dual sovereignty claims, or at a minimum that the United States’ claim to sovereignty is equal to that of Canada’s.
Can someone more conversant in the area help me out? Is anyone aware of a similar case of double jeopardy? Is there case law clearly indicating that the dual sovereignty doctrine applies to crimes committed abroad?
I should add that there is a separate court for violating 18 U.S.C. 2422(b), which criminalizes anyone who uses the Internet and “knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any [criminal] sexual activity….” The alleged conduct by Yakoob subject to this count occurred in Michigan and does not raise the same problems.
Roger,
In A.P. v. Italy, the UN Human Rights Committee held that the non bis in idem principle (double jeopardy prohibition) codified in Article 14 of the ICCPR applies only with regard to an offence adjudicated in a given state. It does not apply to the adjudication of offences in two or more national jurisdictions. (However, Article 10 of the ICTY Statute prohibits national courts from trying someone already tried by the ICTY.)
Francisco Forrest Martin
I usually just read for the knowledge but, a senario come to mind. What if the crime spree that was a murder began in TX with blunt trama or a gun shot but, ended in Mexico with the victim taking his last breath from the injuries on the Mexican side where the body was disposed of? Both states would want murder charges for the same death crime. How can one nation override another in pressing murder charges? Laredo has had crime spillage with Mexico in both directions – source KWTX Waco, TX.
U.S. v. Richardson 580 F.2d 946 (9th Circuit 1978); cert. denied 439 U.S. 1068 (1979) Richardson et al. convicted in Guatemala for drug crimes and convicted for conspiracy in U.S. upon return. Money quote from case: “We find no violation of the double jeopardy clause on the facts of this case. The Supreme Court has ruled that in the case.neither a state prosecution nor one by an Indian tribe bars subsequent federal prosecution, since in each case the initial action has been brought by a sovereign separate from the United States. United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978); Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959). A fortiori, prosecution by a foreign sovereign does not preclude the United States from bringing criminal charges. If double jeopardy were applicable in such circumstances, “prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.” United States v. Wheeler, 435 U.S. at 318, 98 S. Ct. at 1083. The case before us… Read more »
I’ll admit that I have no legal background, nor any research into the 5th Amendment minus a bit of research done in relation to jury nullification.
However, it seems to me that should he be convicted by the US courts, and in Canada, he should recieve concurrent sentences at the least, if not reducing the greater sentence to the lesser one. What he did was wrong, but so is trying to book the same guy twice on one crime