Unlike David Post, I’m a real American and couldn’t care less about soccer. Sure, I joined my high school’s inaugural junior varsity soccer team, but quit after a few weeks. Kicking was fun, but who knew there would be all that running? My people have no tradition of running.
But Post’s point on jurisdiction of the FIFA indictment should send shivers up your spine.
As the Times story notes:
United States law gives the Justice Department wide authority to bring cases against foreign nationals living abroad, an authority that prosecutors have used repeatedly in international terrorism cases. Those cases can hinge on the slightest connection to the United States, like the use of an American bank or Internet service provider.
But ask yourself: if you think that the “use of an American bank” is a sufficient basis for the exercise of US jurisdiction over foreign nationals residing and conducting business abroad, then presumably you’re OK with being hauled into court in Singapore because you have used, say, a Singaporean bank, or into a Mexican court because your money found its way to a Mexican mortgage broker, or into a Danish court because you have at times used a Danish Internet Service Provider. Yes?
I’m not all that juiced by the Singapore bank analogy either, but you get the point. Better yet, consider whether it would suffice that Lithuania arrests Roger Godell and his staff upon allegations of corruption based upon a team owner spending tainted money buying dinner in Vilnius? There is a “nexus,” in the loosest sense of the word, between the allegation and geography, but hardly one that touches the commission of the crime itself.
In a flat world, however, a facet of conduct can touch almost anywhere. But Amanda Taub at Vox tries to sell American legal exceptionalism on behalf of the government to the masses:
Part of the explanation is that many US federal laws have a global sweep — especially those that involve financial wrongdoing. As long as there is some “nexus” with the US to provide jurisdiction, such as the involvement of a US financial institution or a US citizen, then US attorneys often can and do prosecute wrongdoing that took place primarily overseas.
Crime in a flat world doesn’t respect geographic or jurisdictional confines, and so our laws don’t either. After all, who better to be the world’s policeman than
Lithuania the United States? And so we extend our jurisdiction based on where a crime occurs, or any rhetorical connection, no matter how fatuous.
That’s why the indictment focuses so much on what it refers to as the “centrality of the US financial system” to the alleged crimes: the use of US financial institutions gives prosecutors jurisdiction to prosecute the cases.
The New York Times reports that the indictment was built on information obtained from former FIFA executive Chuck Blazer — a US citizen. Blazer, who was the general secretary of CONCACAF, the regional organization governing soccer in North America, Central America, and the Caribbean, secretly pleaded guilty in 2013 to charges including wire fraud, racketeering, money laundering, and tax evasion. Bloomberg describes him as a “former Westchester soccer dad.” Several other defendants are US citizens. And one of the corporate entities that already pleaded guilty is a US company, Traffic Sports USA.
CONCACAF has its principal administrative office is in Miami. And soccer is growing more popular in the US, which has raised the value of the marketing rights that were obtained through bribes.
An interesting concept, that by prosecuting a U.S. citizen, it entitles the U.S. to assert jurisdiction everywhere over everyone. After all, with soccer growing more popular here, are we not now in charge?
In other words, this isn’t just a case of a federal prosecutor aggressively targeting conduct overseas. This is a case in which US individuals and a US company conspired to commit crimes with foreign co-conspirators, using US financial institutions, in order to exploit US and foreign markets. Viewed through that lens, it’s not surprising that the Justice Department decided that this was a good use of US federal resources.
A well-grounded effort to smurf the connections and create the appearance of propriety, normalcy, in the United State’s assertion of jurisdiction over alleged crimes in which this nation played a trivial part, if any at all.
There is little doubt that an attack on jurisdiction will be mounted, and thwarted, by similar rhetorical devices. It doesn’t take much to manufacture connection that give rise to the appearance of jurisdiction, even when the alleged crimes occurred elsewhere, the defendants aren’t our citizens, and it really had nothing whatsoever to do with this country. There were plenty of other countries that could claim strong ties to the allegations; ours just isn’t one of them.
But jurisdiction is only one of two issues raised by the emptiness of these geographical claimed ties. The other is venue, the place where the actual prosecution is to happen. In this case, it’s the Eastern District of New York, new-AG Lynch’s old stomping ground. While the vagaries of sweeping American jurisdiction may suffice for the shallowness of a Vox article, will it do to try the case in Brooklyn?
“Our constitutional rule–based on its history–requires that venue be linked to the nature of the crime charged and where the acts constituting it took place, and that the accused not be subject to the hardship of being tried in a district remote from where the crime was committed.” United States v. Saavedra, 223 F.3d 85, 88 (2d Cir. 2000).
To that end, the Circuit has suggested a four part “substantial contacts test” test for venue that is relatively favorable to the defendant and much more restrictive than the federal venue statutes. The “substantial contacts” test takes into account four main factors: (1) the site of the crime, (2) its elements and nature, (3) the place where the effect of the criminal conduct occurs, and (4) suitability of the venue chosen for accurate fact finding.” United States v. Reed,773 F.2d 477, 481 (2d Cir. 1985).
As facile as the arguments may be to claim United States jurisdiction, manufacturing “substantial contacts” to EDNY won’t be nearly as easy. Venue is nuts and bolts, and jurisdiction without venue is like a soccer game without vuvuzelas. While jurisdiction may be so broad that feelz arguments suffice, venue is a more demanding determination, and it’s hardly clear that Brooklyn is the place where world soccer should go on trial.