Can US jurisdiction reach too far?

The sentencing of a Zetas cartel assassin in Texas is the latest example of US prosecutors applying extraterritorial jurisdiction to foreign nationals for crimes they committed abroad, and which on the surface do not directly affect the United States. But what are the limitations to the application of this powerful legal tool?

Marciano Millán Vásquez, alias "Chano," may have been one of the most brutal assassins employed by Mexico's renowned Zetas organization. A former plaza boss for the Zetas criminal group in the Mexican border town of Piedras Negras, Vásquez was arrested in Texas in 2015 and indicted by US authorities for conspiring to import and distribute illegal drugs into the United States, among other crimes.

In a later indictment, he was also charged with various murders he committed while engaged in drug trafficking activities. A US courtroom heard of how he laughed as he murdered and then dismembered a young girl in front of her parents, "so you'll remember me," he had said.

Typically, extraterritorial jurisdiction is applied in crimes committed against US citizens abroad, or in cases that have some other direct connection to the United States. Vásquez argued that all of the victims were murdered in Mexico. But US prosecutors say that these murders helped further his drug trafficking to the United States, thus giving them a legal basis for pursuing the charges.

Vásquez was found guilty in July 2016 of murdering at least 29 individuals, among other charges, and was subsequently sentenced to seven life terms in June 2017 by a US district court in Texas for murder and drugs and arms trafficking.

InSight Crime Analysis

US prosecutors have increasingly used extraterritorial jurisdiction to levy charges against foreigners accused of terrorism or organized crime-related offenses, for example by linking suspects to the influx of drugs to the country or to illegal money passing through US financial institutions. But they have rarely targeted foreigners for the murder of non-US nationals abroad.

And when they have, they have not always been successful. In 2016, federal prosecutors in New York filed charges against former Sinaloa Cartel leader Joaquín "El Chapo" Guzmán for the murder of Mexican nationals, on Mexican soil. A few months later, however, those murder charges against Guzmán were quietly dropped amid speculation that prosecutors may have been concerned about proving their claim to US jurisdiction over those crimes. (Guzmán is currently on trial in the United States on drug charges)

According to Dan Schneider, an assistant professor at American University's School of International Service, whether or not extraterritorial jurisidiction applies depends on the prosecution's ability to prove the charges are linked to crimes affecting the United States.

"Under US case law involving conspiracy, one is liable for any crimes committed in furtherance of the conspiracy," Schneider told InSight Crime. "If you're conspiring to traffic narcotics, it is reasonably foreseeable that violence, including murder, will result after you join the conspiracy." 

SEE ALSO: Coverage of Extradition

In Vásquez's case, prosecutors were able to prove that Vásquez was guilty of "killing while engaged in drug trafficking" -- drugs that he knew would reach the United States.

Richard Gregorie, a prosecutor in the US Attorney's Office in Miami who wrote the indictment for deceased former Panamanian dictator Manuel Noriega, has prosecuted a number of drug trafficking and money laundering cases using extraterritorial jurisdiction. He echoed Schneider's comments, emphasizing that extraterritorial jurisdiction can be motivated by national security considerations. 

"Extraterritorial jurisdiction comes from protecting US laws and interests," Gregorie told InSight Crime. "If crimes are committed in furtherance of an enterprise whose object is to get [drugs] into the United States, we [US prosecutors] have jurisdiction." 

Still, the former Zetas boss may mount an appeal against his hefty sentence. David Shirk, the director of the Justice in Mexico research project, told InSight Crime that if Vásquez does appeal to a higher US court, its verdict could end up setting a sturdier precedent for the application of extraterritorial jurisdiction in murder or other criminal cases. 

"One thing that remains to be seen is if [the charges] hold up against scrutiny against higher court appeals," Shirk said. "An appeal to this particular charge and sentence could have very interesting implications."

If Vásquez’s case is the first of many, the United States will be strengthening its role in prosecuting international crimes -- a powerful position that may help prop up weaker judicial systems abroad, or undermine them.

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