Do US laws stop at the water’s edge or do they reach across the oceans wherever crimes are committed? That’s a question posed in the US District Court in Brooklyn, New York. There, Jean Boustani, a Lebanese business executive, filed his latest effort to dismiss a federal indictment that charges him with fraud and money-laundering in connection with a series of loans made to entities in Mozambique by two European-based investment banks.
Boustani’s lack of nexus to the US and the limits of the extraterritorial application of American law are central to his argument. Among the case’s flashpoints is a securities’ offering circular emblazoned with the text: “The notes may not be offered or sold within the United States.” Indeed, securities, or “notes,” at the center of the prosecution were actually traded in Europe through European clearance systems. Ties between the core of alleged wrongdoing to the US can be fairly described as attenuated.
The case bears watching, particularly as tensions rise globally and “America First” sentiment finds few takers beyond US borders. With protests mounting in Hong Kong and Britain poised to crash out of the European Union, the rules governing the world’s money centers will draw greater scrutiny.
To be clear, the case’s allegations are not some pump-and-dump scheme hatched in a backroom, the type depicted by Hollywood in The Wolf of Wall Street. Rather, whatever happened involved sophisticated parties and bankers, two of whom have each pleaded guilty to a single charge, potentially undercutting the government’s broader case against Boustani. In a word, it’s hard to wage a conspiracy without conspirators.
Potential repercussions extend beyond the parties. According to a 2016 Supreme Court decision that limited the extraterritorial application of RICO, America’s racketeering statute: “United States law governs domestically but does not rule the world.” At the time, the administration of then-president Barack Obama acknowledged in a friend-of-the-court, amicus brief that a private RICO suit seeking “damages for a foreign injury has significant potential to cause international friction.”
Although the high court’s decision arose from a civil action involving an American conglomerate, its holding has been given effect in criminal cases. Constitutional guaranties of due process apply on US soil to civil litigants and criminal defendants, citizens and non-citizens alike.
In the Boustani matter, the defendant takes aim at the contention that dollar-denominated transfers among foreign banks automatically provide jurisdiction within the US, or, said another way, that funds ricocheting past correspondent accounts place a transaction squarely within the US judiciary’s purview. On that score, Boustani’s filing marshals an array of authorities to argue that the law is far from a blank slate.
Pertinent precedents cast doubt on the prosecutors’ case, Boustani’s lawyers write, and will likely emerge among the points of contention as the case goes to trial. Already, the defense is baiting the government, claiming: “The government’s best arguments are that binding Supreme Court precedent isn’t actually binding, that a recent Second Circuit opinion didn’t mean what it said, and that the indictment contains allegations that it obviously does not.”
This may look like legal hyperbole and trash talking, but the issues are real. Sharp words should not obscure the fact that this scrum will likely impact the degree to which American law enforcement becomes tethered to larger political goals.
Trial preparations are already under way even as multiple motions have yet to be resolved by the court. President Donald Trump has said publicly that the US is not the world’s policeman, but the gap between this previously expressed sentiment and the posture of the prosecutors is readily apparent. Although Boustani echoes the president’s words, the government remains unmoved.
The trial is two months away.