Thai Money Laundering Charges

United States Prosecution of Thai Nationals on Money Laundering Charges in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On September 9, 2011, the United States filed a brief in the U.S. District Court for the Central District of California opposing a motion to dismiss a criminal indictment that included money laundering charges. United States v. Siriwan, CR No. 09-81-GW (C.D. Cal.) The indictment, available at (internet link) justice.gov/criminal/fraud/fcpa/cases/siriwan/01-28-09siriwan-indictment.pdf, charged two Thai nationals—a former official in the Thai government's tourism agency and her daughter—on several counts, including transmitting money outside the U.S. for the purpose of carrying on a specified unlawful activity (“SUA”), namely bribery of a foreign official and violation of Thai public corruption law. Indictment ¦ 32. The indictment alleged that defendants made arrangements with U.S. citizens Gerald and Patricia Green (“the Greens”) to receive bribes in exchange for awarding tourism-related contracts. The charges were brought under U.S. law, including 18 U.S.C. § 1956(a)(2)(A), “International Promotion of Money Laundering” in the Money Laundering Control Act (“MLCA”).

Developments

Among the arguments made by defendants in their motion to dismiss the indictment was the assertion that Thailand, rather than the United States, would be the proper forum for consideration of the charges. In the excerpt set forth below from the U.S. brief in opposition to defendants' motion to dismiss, the United States elaborated on several reasons why the United States is the proper forum for the indictment: (1) the plain text of the MLCA rebuts the presumption against extraterritoriality; (2) the application of § 1956(a)(2)(A) to defendants does not violate international law; and (3) provisions in Thailand's Penal Code do not make Thailand the exclusive jurisdiction over the offenses in the indictment. The full text of the U.S. brief is available at (internet link) state.gov/s/l/c8183.htm. Most footnotes and citations to the record in the case have been omitted from the excerpt that follows.

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D. THIS COURT IS THE PROPER FORUM FOR THE INDICTMENT Defendants ask the Court to dismiss the Indictment on the basis of principles of statutory construction, international law and the Thai government's determined judgment that it has sole jurisdiction over the alleged corrupt acts of its officials. Defendants' arguments are without merit and should be flatly rejected. In support of their arguments, Defendants introduce concepts of customary international law (as set forth by the Restatement (Third) of Foreign Relations Law) in an attempt to convince this Court that because Thailand has initiated its own proceedings against the defendants for violations of its own laws, the United States lacks the ability to prosecute the defendants for completely separate violations of United States law, that are based, in part, on the same conduct.

In making these claims, Defendants disregard the plain language of U.S. statutes that specifically provide the appropriate jurisdiction for the charges set forth in the Indictment, mis-apply and distort customary international law in showing that the government's prosecution is “unreasonable,” and completely ignore the firmly rooted and accepted practice of concurrent jurisdiction—enabling two nations to prosecute defendants if their conduct violates the laws of both nations. Moreover, contrary to defendants' assertions, Thailand has not exercised exclusive jurisdiction in this matter. Thailand's statue is merely an assertion of its own jurisdiction, it does not prevent the punishment of the same defendants by a foreign country (such as the United States) for violations of its own laws.

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1. Defendants' Statutory Construction Analysis Fails: The Presumption Against Extraterritoriality Has Been Rebutted By Section 1956's Plain Text.

Defendants' motion to dismiss alludes only briefly to the presumption against extraterritoriality (the extraterritorial application of a statute). As the Supreme Court has recently reiterated, “[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Morrison v. National Australia Bank, 130 S.Ct. 2869, 2877 (2010). However, this cannon of construction is “a presumption about a statute's meaning, rather than a limit upon Congress's power to legislate,” id., and may be rebutted by a “clear indication of extraterritoriality.” Id. at 2883. See also United States v. Felix-Gutierrez, 940 F.2d. 1200, 1204 (citing United States v. Bowman, 260 U.S. 94, 98 (1922) (extraterritorial application of a statute can arise from Congress's expressed intent or by a proper inference from the nature of the offense)).

As discussed at length in Part B of this Response, Congress has expressly provided for extraterritorial jurisdiction through § 1956(f). This clear indication of extraterritorial scope in the text of the statute is sufficient to overcome any presumption against extraterritoriality that might be implicated through a statutory construction analysis.

United States Prosecution of Thai Nationals on Money Laundering Charges in 2011 (Continuation)

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Defendants' reliance on the Charming Betsy canon of avoiding a construction of U.S. that conflicts with international law is similarly unfounded in this case. While the government agrees with the general proposition that,”[w]here fairly possible, a United States statute is to be construed as not to conflict with international law or with an international agreement with the U.S.” Munoz v. Ashcroft, 339 F.3d 950, 958 (9th Cir. 2003) (quoting the Restatement, Section 114 and citing Murray v. Schooner the Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)), the Charming Betsy canon is irrelevant for two reasons: first and most importantly, there is no ambiguity with Congress' intent. See United States v. Yousef, 327 F.3d 56, 92 (2d Cir. 2003)(Charming Betsy cannon applicable only when Congressional intent is ambiguous). In this case, there is absolutely no ambiguity in Congressional intent as Congress explicitly stated through § 1956(f) that criminal extraterritorial jurisdiction exists for MLCA offenses, including violations of § 1956(a)(2)(A) and (h). The Court thus has no need to look to the Restatement, statutory construction, or any other expression of customary international law, in this case. Secondly, and as discussed below, Charming Betsy is inapplicable because application of § 1956(a)(2)(A) to defendants' conduct does not create a conflict with international law or an international agreement.

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2. Application of § 1956(a)(2)(A) to Defendants Does Not Violate Customary International Law While there is no reason to do so, even if the Court were to consult customary international law in this case, the extraterritorial application of § 1956(a)(2)(A) through § 1956(f) falls well within those norms. Defendants' analysis of those principles is badly off the mark. International law requires no more from a nation's exercise of extraterritorial jurisdiction than that it comport with a recognized basis to prescribe and be reasonable. The application of § 1956(a)(2)(A) to defendants' money laundering activities easily meets those standards.

As applied by the Ninth Circuit, customary international law requires a two stage analysis: (1) whether a basis for jurisdiction to prescribe exists30 30; and (2) whether the exercise of jurisdiction to prescribe is reasonable. United States v. Vasquez-Velasco, 15 F.3d 833, 840 (9th Cir. 1994). It is well-settled under customary international law that “a state has jurisdiction to prescribe law with respect to…conduct that wholly or in substantial part, takes place within it territory.” Restatement § 401(a). Here, the defendants knowingly used the United States' financial system in order to promote two separate unlawful activities – the Greens' FCPA [Foreign Corrupt Practices Act] offenses as well as defendants' offenses against a foreign nation, that is, Thailand. Each is specifically enumerated as such within the MLCA and represents conduct, the promotion of which through international transfers of money from or to the United States, Congress has explicitly deemed criminal under the laws of this nation.

The financial transactions in the United States that defendants caused to promote those SUAs totaled close to ,800,000 from 2002-2007. These international transfers originated from numerous bank accounts within the Central District of California and were transferred, at the express direction of defendant Juthamas Siriwan, to numerous bank accounts all over the world in the name of defendant Jittisopa Siriwan – including bank accounts in Singapore, the United Kingdom, and the Isle of Jersey. A basis for jurisdiction plainly exists.

Developments

Defendants' arguments relate less to the basis of jurisdiction under customary international law and more to a challenge of the “reasonableness” of the government's prosecution. While this Court need not decide that the government's prosecution in this case is “reasonable,” since Congress has clearly expressed its intention that the statute apply to conduct committed outside the United States, even if “reasonableness” under customary international law were at issue here, the government's prosecution of defendants entirely satisfies that standard. As demonstrated below, defendants' arguments rely on a distortion of the facts and self-serving proclamations that have little or no substance or support.31 Defendants' application of the Restatement's reasonableness factors does not in any way call into question the reasonableness of the Indictment or prosecution of defendants. Per § 403 of the Restatement, whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

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(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted.

(d) the existence of justified expectations that might be protected or hurt by the regulation;

(e) the importance of the regulation to the international political, legal, or economic system;

(f) the extent to which the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with regulation by another state.

As set forth below, defendants' proffered arguments with respect to these factors fall well short of a showing of lack of “reasonableness.”

Factor (a): In support of this factor, defendants boldly state that the “center of gravity” of events giving rise to defendants' culpability is in Thailand. In making this claim, defendants conveniently ignore the ,800,000 defendants caused to be wired from the United States to bank accounts all over the world. Defendants also conveniently ignore the much larger scope of activity in the United States that occurred as a direct result of defendant Juthamas Siriwan awarding contracts to the Greens from 2002-2006, such as the subcontracting with third party companies, and the creation of numerous shell companies to service the tourism contracts. They also fail to mention the significant activity that took place at the Los Angeles office of the Tourism Authority of Thailand in connection with awarding the contracts to the Greens. Moreover, while defendants would like to claim that since the film festival was held in Thailand there is a strong link to Thailand, the fact remains that the links are much stronger in the United States and abroad. Indeed, defendants' kickback money did not even make it back to Thailand.

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Factor (b): Defendants' sole argument in this regard is that they are Thai citizens residing in their home country. Defendants fail to cite any authority that stands for the proposition that prosecution of a foreign national living in his or her own home country by itself, makes such prosecution unreasonable.

Factor (c): Defendants incorrectly claim in this category that as to “the underlying specified acts resting on Thai laws” that Thailand has “asserted the fullest jurisdiction consistent with international law.” Defendants' further claim that the MLCA has limited jurisdiction. Both assertions are false. As discussed further in sub-part 3 below, defendants have provided no evidence that Thailand has asserted its jurisdiction over this matter in such a way that forecloses prosecution by the United States. Indeed, Thailand has yet to even consider the United States' interests in this matter as a request for extradition has not been transmitted. As for the scope of Untied States' jurisdiction, as discussed previously at length, §1956(f) provides ample jurisdiction to prosecute the defendants pursuant to the statutes charged.

United States Prosecution of Thai Nationals on Money Laundering Charges in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Factors (d)-(f): Defendants have in fact affirmed the United States' own interests in prosecuting this case. As defendants state in their motion, “the United States has an interest in preventing its financial institutions from being used to launder proceeds of unlawful activity…”

Defendants then attempt to attack that interest through arguments that once again fall back on their incorrect claims of the government's perceived lack of jurisdiction and/or defendants' claims that Thailand has exercised exclusive jurisdiction. Thailand's alleged assertion of exclusive jurisdiction will be addressed in sub-part 3 below.

Factor (h). Defendants here attempt to reconcile their admission that the United States has a legitimate interest in this area with their argument that Thailand has a superior interest. Despite defendants' desire for this to be a “tie-breaker” situation, it is not. On the contrary, there is no tie to be broken in this case. International law plainly recognizes that two sovereigns can reasonably prescribe the same conduct. See Restatement §403(3) & cmt d (“Exercise of jurisdiction by more than one state may be reasonable for example, when one state exercises jurisdiction on the basis of territoriality and the other on the basis of nationality; or when one state exercises jurisdiction over activity in its territory and the other on the basis of the effect of that activity in its territory”).

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Moreover, there is “no conflict of regulation by another state.” Restatement § 403(2)(h). There is no tension between the Thai bribery laws and the extraterritorial application of § 1956(a)(2)(A). Thailand is pursuing allegations completely different from those of the United States. As stated in Part B of this Response, the government is not charging the defendants with violations of bribery or the offenses that serve as the SUAs being promoted. Defendants are charged with violating United States money laundering laws for promoting those offenses. That Thailand wishes to prosecute defendants for whatever violations of Thai law their conduct represents is not in any way in conflict with the prosecution of the defendants by the United States for using its financial system to promote specified unlawful activities, in violation of § 1956(a)(2)(A). In addition, and as discussed further below, Section 9 of Thailand's Penal Code poses no conflict – concurrent jurisdiction among nations is a widely recognized and well accepted.

Developments

3. Section 9 of Thailand's Penal Code Is Not An Assertion By Thailand Of Sole Jurisdiction Over The Offenses In The Indictment.

Defendants' claim that Thai Penal Code Section 9 is an assertion of Thailand's superior interests or that it provides exclusive or sole jurisdiction in this matter so as to prohibit the United States from prosecuting the defendants is incorrect.

Contrary to defendants' suggestions, Thailand has not claimed a superior interest in this matter, nor has the Thai government, through Section 9 or otherwise, issued a “determined judgment that it has sole jurisdiction over alleged corrupt acts of its officials.” Indeed, the United States has not received any indication, formally or informally, that Thailand has asserted sole jurisdiction over this matter, is claiming superior interests, or has otherwise expressed disapproval of the investigation leading up to the Indictment or the return of the Indictment. Thailand is well aware of the government's investigation into defendants' violation of United States' money laundering laws and has provided, via the Mutual Legal Assistance Process and at the government's request, materials in connection with the investigation and indictment of the defendants. Thailand has never claimed sole jurisdiction over these matters. It is up to Thailand, not the defendants, to make assertions of superior interests or sole jurisdiction.*** Defendants' reliance on Section 9 of the Thai Penal Code is entirely misplaced. Section 9 simply affirmatively states that government officials that commit offenses “as provided in Section 147 to Section 166 . . . outside the Kingdom shall be punished in the Kingdom.” This statute does not imply or suggest exclusive jurisdiction—it is merely an assertion of its own jurisdiction. The statute does not prevent the punishment of the same defendants by a foreign country (such as the United States) for violations of its own laws. Even assuming that this was an assertion of sole jurisdiction for those offenses, this section in no way curtails the government's jurisdiction to prosecute defendants for violations of its money laundering laws. To reiterate, the government is not prosecuting the defendants for violation of Section 147 to Section 166 of the Thai Penal Code. Therefore, Section 9 is completely irrelevant to the jurisdiction of the United States in this matter.

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Defendants' claims in this area also completely ignore the well-accepted practice of concurrent jurisdiction. As the Permanent Court of International Justice recognized in its seminal Lotus decision, customary international law permits concurrent jurisdiction. When a course of conduct crosses national borders “[i]t is only natural that each [nation] should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.” The Case of the S.S. “Lotus,” P.C.I.J., Ser. A, No. 10, at 30-31 (1927); see also United States v. Corey, 232 F.3d 1166, 1179 (9th Cir. 2000)(“[t]hus, concurrent jurisdiction as such raises no eyebrows among international lawyers.”) The Restatement itself notes that § 403(3) “applies only when one state requires what another prohibits, or where compliance with the regulations of two states exercising jurisdiction consistently with this section is otherwise impossible. It does not apply where a person subject to regulation by two states can comply with the laws of both.”). That type of conflict is simply not present here.

Moreover, purported tensions with Thailand arising from the extraterritorial application of § 1956(a)(2)(A) are best left to the political branches of the respective governments to sort out. Id. at n.9 (“we must presume that the President has evaluated the foreign policy consequences of such an exercise of U.S. law and determined that it serves the interests of the United States”); accord Restatement, § 403(3), cmt e (“Subsection (3) is addressed primarily to the political departments of government, but it may be relevant also in judicial proceedings”).

In that vein, the United States and Thailand have an extradition treaty in force which will require the Thailand, through its own judicial process, to decide whether to approve defendants' extraditions. Extradition Treaty with Thailand, U.S.-Thail, Dec. 14, 1983, S. TREATY DOC. NO. 98-16 (1984). In addition, if the extraditions are approved by the judiciary, the Thai executive branch will decide whether to actually surrender the defendants to the United States. In considering the United States' extradition requests, Thai officials will, inter alia, determine if the defendants' money laundering activities charged in the Indictment constitute an extraditable offense under the treaty (Article 1). Thai officials, even if they approve the defendants' extraditions, could delay the surrender until any possible Thai prosecution and sentence has been completed (Article 12).

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Perhaps most significantly, Article 4 of the treaty, entitled “Dual Jurisdiction,” provides “The Requested State may refuse to extradite a person claimed for a crime which is requested by its laws as having been committed in whole or in part in its territory, or in a place treated as its territory, provided it shall proceed against the person for that crime according to its laws.” This provision would allow Thailand to deny the United States requests for defendants' extraditions if they choose to prosecute them for money laundering. As a result, the extradition treaty provides established mechanisms for Thailand and the United States to accommodate any foreign relations concerns which either may perceive in this case.

Defendants' arguments and conclusory statements in this area are nothing more than an attempt to convince this Court to ignore the process for resolving the order of prosecution among nations (set out through the extradition process), ignore the statutory authority set out by Congress regarding extraterritorial application of the MLCA (as set forth by § 1956(h)), and distort the application of customary international law. There has been no violation of international law and defendants' motion should be denied. After the United States filed its brief in opposition to defendants' motion to dismiss, the court requested supplemental briefing on two issues. The section set forth below from the supplemental brief filed by the United States on December 2, 2011 addresses the second of those issues: defendants' argument that Thailand had “organic” or “exclusive” jurisdiction over the conduct alleged in the indictment. Most footnotes and citations to the record have been omitted. The full text of the brief is available at www.state.gov/s/l/c8183.htm. Defendants' assertions of Thailand's “organic” or “exclusive” jurisdiction in this matter, which they claim is contained in Title 9 of Thailand's Penal Code, are references to a concept that simply does not exist in international law. There is no such thing as organic or exclusive jurisdiction in international law. Further, Title 9 of Thailand's Penal code makes no such claim.

It is well settled that international law recognizes several principles whereby a nation may enact laws that apply extraterritorially. It is equally well settled that each nation has equal rights in this regard. That is, what one nation can do under international law, any other nation can similarly do—no one nation is superior to another. These internationally accepted principles for legislating extraterritorially apply only to a nation's ability to authorize jurisdiction for itself—not to unilaterally limit the jurisdiction of another nation. International law does not recognize any right or principle that allows a unilaterally preemption of jurisdiction which would prevent the United States (and anyone else) from asserting and protecting its important interests.

The issue of one nation attempting to unilaterally preempt another nation's ability to prosecute was addressed in the Permanent Court of International Justice (“PCIJ”) in 1927 in The Case of the S.S. Lotus, P.C.I.J., Ser. A, No. 10 (1927), which established the fundamental rule of concurrent jurisdiction in international law. In Lotus, a collision occurred on the high seas between a French ship (Lotus), under the watch of Lt. Demons, a French citizen, and a Turkish ship. The Turkish ship was cut in two, sank, and eight Turkish nationals died. The Lotus continued on its original course to Constantinople. France, making arguments similar to defendants' arguments in this case, claimed that it had personal jurisdiction over Lt. Demons and that Turkey could had no jurisdiction to prosecute Lt. Demons under international law. Id. at ¦¦ 28, 32. The PCIJ refused to accept France's argument and held that “restrictions upon the independence of States cannot therefore be presumed.” Id. at ¦ 44. The PCIJ further held:

There is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther than the rights which it exercises within its territory…there is no rule of international law prohibiting the State to which the ship on which the effects of the offense have taken place belongs, from regarding the offense as having been committed in its territory and prosecuting accordingly. This conclusion could only be overcome if it were shown that there was a rule of customary international law which, going further than the principal stated above, established the exclusive jurisdiction of the State whose flag is flown…[I]n the Court's opinion, the existence of such a rule has not been conclusively proved.

Id. at ¦ 65-67. The PCIJ concluded as follows:

It is only natural that each [State] should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.

Id. at ¦ 86 (emphasis added).

As the above case demonstrates, defendants' claims of exclusive or organic jurisdiction do not exist in international law. Rather, concurrent jurisdiction is the accepted practice.

As the Ninth Circuit stated in United States v. Corey, 232 F.3d 1166, 1179 (9th Cir. 2000), “[C]oncurrent jurisdiction is well recognized in international law…two or more states may have legitimate interests in prescribing governing law over a particular controversy.” Put simply, “[P]rosecution by a foreign sovereign does not preclude the United States from bringing criminal charges” 27 Even assuming conflicts between nations arise, as the court in Corey points out “American courts have on numerous occasions managed conflicts arising when two nations had authority over the same issue.” Id. These conflicts are often managed by treaty. “[I]ndependent nations cede their exclusive control over their territory through treaties, and the terms of those agreements [treaties] govern that concurrent authority.” Id. at 1180.

Moreover, contrary to defendant's assertions, Thailand, through Title 9 of its Penal Code or otherwise, has not attempted to claim organic or exclusive jurisdiction over the offenses alleged in the indictment. According to defendants, Title 9 reads as follows:

Government Officials commits the offences as provided in Section 147 to Section 166…outside the Kingdom shall be punished in the Kingdom The term “exclusive” is nowhere to be found in the above statute. Defendants simply insert that term as if it were included. It is not. Likewise, the term “exclusive”, “organic”, or even “sole” nowhere appears in the Thai Supreme Court cases defendants cite, the Thai legislative history defendants cite, or their own Thai lawyer's declaration. The absence of any exclusivity language is consistent with the accepted principle that the concept does not exist in international law and shows that Thailand is simply providing for its own jurisdiction to prosecute its nationals when they commit crimes abroad.

U.S. Prosecution of Thai Nationals on Money Laundering Charges

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• International Criminal Law
• International Crimes
• Money Laundering

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Notes and References

1. 30 The Restatement description of customary international law distinguishes between jurisdiction to prescribe (a nation's jurisdiction to make its law applicable to a case) and jurisdiction to adjudicate (a nation's jurisdiction to subject persons to the process of its courts). See §§ 401(a),(b). Although defendants phrase their argument in terms of whether this court is the “proper forum,” their real argument concerns U.S. jurisdiction to prescribe, as the authorities upon they rely makes clear.
2. 31 Customary international law recognizes two additional bases for jurisdiction to prescribe: (1) jurisdiction on the basis of effect in the United States, see Restatement § 402(1)(c); and (2) the “protective principle.” See id. § 402 cmt. F. Since the defendants used a bank in the United States to promote the SUAs, their conduct plainly had serious and harmful effects within this country. Consequently, jurisdiction under the “effects” basis is present and consistent with customary international law. In addition, the United States has a strong national interest in maintaining the integrity of its financial institutions by protecting them from being used to commit money laundering offenses in the United States to promote bribery of foreign government officials or commit offenses against foreign nations. These interests justify application of the “protective” basis of jurisdiction as well. See, e.g., Vasquez-Velasco, 15 F.3d at 840-41 (applying 18 U.S.C. § 1959, violent crimes in aid of racketeering activity , to defendant's participation in murders of two Americans in Mexico comported with international law); Felix-Gutierrez, 940 F.2d at 1205-06 (conviction for being accessory after fact of murder of DEA agent, committed in Mexico, was consistent with international law). This case is on even stronger footing than those cited above, however, because the statute at issue here, § 1956(f), contains a clear Congressional expression of extraterritorial application, whereas the statutes applied in the cases above did not.
3. *** Editor's Note: The U.S. brief relies on the declaration of the Deputy Chief in the Asset Forfeiture and Money Laundering Section of the Criminal Division of the U.S. Department of Justice for support of its representations about the government of Thailand's stand with respect to the indictment.
4. 27 United States v. Richardson et al., 580 F.2d 946, 947 (9th Cir. 1978)(denying motion to dismiss where defendant was already prosecuted in Guatemala for the same offense). See also United States v. Guzman, 85 F.3d 823, 826 (1st Cir. 1996)(holding that when a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct offences and can be prosecuted and punished for both.)

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Notes and References

1. 30 The Restatement description of customary international law distinguishes between jurisdiction to prescribe (a nation's jurisdiction to make its law applicable to a case) and jurisdiction to adjudicate (a nation's jurisdiction to subject persons to the process of its courts). See §§ 401(a),(b). Although defendants phrase their argument in terms of whether this court is the “proper forum,” their real argument concerns U.S. jurisdiction to prescribe, as the authorities upon they rely makes clear.
2. 31 Customary international law recognizes two additional bases for jurisdiction to prescribe: (1) jurisdiction on the basis of effect in the United States, see Restatement § 402(1)(c); and (2) the “protective principle.” See id. § 402 cmt. F. Since the defendants used a bank in the United States to promote the SUAs, their conduct plainly had serious and harmful effects within this country. Consequently, jurisdiction under the “effects” basis is present and consistent with customary international law. In addition, the United States has a strong national interest in maintaining the integrity of its financial institutions by protecting them from being used to commit money laundering offenses in the United States to promote bribery of foreign government officials or commit offenses against foreign nations. These interests justify application of the “protective” basis of jurisdiction as well. See, e.g., Vasquez-Velasco, 15 F.3d at 840-41 (applying 18 U.S.C. § 1959, violent crimes in aid of racketeering activity , to defendant's participation in murders of two Americans in Mexico comported with international law); Felix-Gutierrez, 940 F.2d at 1205-06 (conviction for being accessory after fact of murder of DEA agent, committed in Mexico, was consistent with international law). This case is on even stronger footing than those cited above, however, because the statute at issue here, § 1956(f), contains a clear Congressional expression of extraterritorial application, whereas the statutes applied in the cases above did not.
3. *** Editor's Note: The U.S. brief relies on the declaration of the Deputy Chief in the Asset Forfeiture and Money Laundering Section of the Criminal Division of the U.S. Department of Justice for support of its representations about the government of Thailand's stand with respect to the indictment.
4. 27 United States v. Richardson et al., 580 F.2d 946, 947 (9th Cir. 1978)(denying motion to dismiss where defendant was already prosecuted in Guatemala for the same offense). See also United States v. Guzman, 85 F.3d 823, 826 (1st Cir. 1996)(holding that when a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct offences and can be prosecuted and punished for both.)

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Notes and References

1. 30 The Restatement description of customary international law distinguishes between jurisdiction to prescribe (a nation's jurisdiction to make its law applicable to a case) and jurisdiction to adjudicate (a nation's jurisdiction to subject persons to the process of its courts). See §§ 401(a),(b). Although defendants phrase their argument in terms of whether this court is the “proper forum,” their real argument concerns U.S. jurisdiction to prescribe, as the authorities upon they rely makes clear.
2. 31 Customary international law recognizes two additional bases for jurisdiction to prescribe: (1) jurisdiction on the basis of effect in the United States, see Restatement § 402(1)(c); and (2) the “protective principle.” See id. § 402 cmt. F. Since the defendants used a bank in the United States to promote the SUAs, their conduct plainly had serious and harmful effects within this country. Consequently, jurisdiction under the “effects” basis is present and consistent with customary international law. In addition, the United States has a strong national interest in maintaining the integrity of its financial institutions by protecting them from being used to commit money laundering offenses in the United States to promote bribery of foreign government officials or commit offenses against foreign nations. These interests justify application of the “protective” basis of jurisdiction as well. See, e.g., Vasquez-Velasco, 15 F.3d at 840-41 (applying 18 U.S.C. § 1959, violent crimes in aid of racketeering activity , to defendant's participation in murders of two Americans in Mexico comported with international law); Felix-Gutierrez, 940 F.2d at 1205-06 (conviction for being accessory after fact of murder of DEA agent, committed in Mexico, was consistent with international law). This case is on even stronger footing than those cited above, however, because the statute at issue here, § 1956(f), contains a clear Congressional expression of extraterritorial application, whereas the statutes applied in the cases above did not.
3. *** Editor's Note: The U.S. brief relies on the declaration of the Deputy Chief in the Asset Forfeiture and Money Laundering Section of the Criminal Division of the U.S. Department of Justice for support of its representations about the government of Thailand's stand with respect to the indictment.
4. 27 United States v. Richardson et al., 580 F.2d 946, 947 (9th Cir. 1978)(denying motion to dismiss where defendant was already prosecuted in Guatemala for the same offense). See also United States v. Guzman, 85 F.3d 823, 826 (1st Cir. 1996)(holding that when a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct offences and can be prosecuted and punished for both.)