Where Korean citizen was prosecuted for bribery in Korean
court and later in U.S. federal court based on same facts, Fifth Circuit
affirms U.S. conviction [1] because Convention on Combating Bribery of Foreign
Public Officials in effect in both nations does not bar multiple prosecutions
for same conduct and [2] because U.S. did not waive jurisdiction nor [3] has it
adopted doctrine of international double jeopardy
Beginning in 2001, Gi‑Hwan Jeong, a citizen of South Korea,
was successfully bribing two U.S. officials to obtain a $206 million contract
relating to the U.S. Army and Air Force Exchange Service (AAFES) for his
company, Samsung Rental Company, Ltd. (SRT). Under the contract, SRT would
provide internet and other telecommunication services to U.S. military
installations in South Korea.
Jeong came under investigation by U.S. and South Korean
investigators. AAFES terminated the contract with SRT in 2007, and in 2008 a
South Korean court convicted Jeong of bribing U.S. officials. The court
sentenced him to time served (58 days) as well as to pay a fine of about
$10,000.
That, however, was far from ending the U.S. investigation.
The U.S. requested assistance pursuant to the Treaty Between the United States
of America and the Republic of Korea on Mutual Legal Assistance in Criminal
Matters, U.S.‑South Korea, November 23, 1993, S. Treaty Doc. No. 104‑1 (1995)
[in force May 23, 1997]. The request acknowledged Jeong’s conviction and stated
that the U.S. was not seeking to prosecute.
AAFES then invited Jeong to a meeting in Dallas, Texas, for
a discussion. Jeong did in fact travel to the U.S. where the U.S. arrested him
upon arrival. A Grand Jury then indicted Jeong for federal bribery under 18
U.S.C. 201(b)(1), conspiracy under 18 U.S.C. 371, and wire fraud under 18
U.S.C. 1343 and 1346.
Jeong moved to dismiss the indictment claiming that the U.S.
lacked jurisdiction to prosecute him. In particular, he argued [1] that the
federal bribery statute does not apply extraterritorially; [2] that the
prosecution violates the Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions (December 17, 1997, S. Treaty
Doc. No. 105‑433 (1998)) [in force February 15, 1999] (Convention) of the
Organization for Economic Cooperation and Development (OECD); and [3] that
Article 4.3 of the Convention bars multiple prosecutions for the same offense.
Both the U.S. and South Korea are signatories to the Convention.
The Korean Ministry of Justice submitted a statement to the
district court supporting Jeong’s motion to dismiss. It contended that the U.S.
had not timely asserted jurisdiction to prosecute Jeong, as confirmed in the
U.S. request under the Mutual Assistance Treaty; thus, the U.S. had effectively
waived that right. The district court denied the motion [1] because federal bribery
laws do in fact apply extraterritorially and [2] because the Convention does
not bar multiple prosecutions. Jeong pleaded guilty but exercised his right to
appeal the denial of his motion to dismiss. The U.S. Court of Appeals for the
Fifth Circuit, however, affirms Jeong’s American conviction.
According to Jeong, the Convention bars a signatory party
from prosecuting a foreign national whose alleged offenses had occurred abroad.
Article 4.3 of the Convention provides that, when more than one jurisdiction
can prosecute, the governments involved should—at the request of one of
them—consult to determine the most appropriate jurisdiction for prosecution.
The Court of Appeals, however, disagrees. “We apply the
traditional canons of interpretation to Article 4.3. ‘The interpretation of a
treaty, like the interpretation of a statute, begins with its text.’... We must
interpret the text ‘in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object
and purpose.’ ... Only if the language of a treaty, when read in the context of
its structure and purpose, is ambiguous may we ‘resort to extraneous
information like [1] the history of the treaty, [2] the content of negotiations
concerning the treaty, and [3] the practical construction adopted by the
contracting parties.’ ... Finally, [4] we may not ‘alter, amend, or add to any
treaty, by inserting any clause, whether small or great, important or trivial,’
for to do so ‘would be ... an usurpation of power, and not an exercise of
judicial function.’ ...”
“Applying these canons, we conclude that the plain language
of Article 4.3 does not prohibit two signatory countries from prosecuting the
same offense. Rather, the provision merely establishes when two signatories
must consult on jurisdiction. Article 4.3 states that two signatories with
concurrent jurisdiction over a relevant offense must, ‘at the request of one of
them,’ consult on jurisdiction.”
“The phrase ‘at the request of one of them’ is a dependent
clause that conditions the consultation requirement upon the existence of a
request. Where no such request is made, then, the ordinary reading of Article
4.3 is that consultation is not required. Jeong is, therefore, incorrect that
the provision requires consultation in every instance of concurrent
jurisdiction. In the case at hand, the record shows that neither the U.S. nor
South Korea requested consultation on their concurrent jurisdiction to
prosecute Jeong. That they did not consult on jurisdiction, therefore, does not
violate Article 4.3.”
“Even if the U.S. and South Korea had been required to
consult on jurisdiction, however, it would not follow that only one of the two
nations could prosecute Jeong. Article 4.3 requires that consultation be made
‘with a view to determining the most appropriate jurisdiction for prosecution.’
Jeong argues that because the provision uses the singular, not plural, form of
‘jurisdiction,’ prosecution of an offense may be had in only one jurisdiction.”
“But this reading impermissibly engrafts additional
requirements on the clause, and we may not ‘alter, amend, or add to’ the plain
language of a treaty. ... The plain language of the clause provides that where
consultation is required, the parties need only consult ‘with a view to
determin[e]’_the
jurisdictional question ‑‑ they need not actually answer it. And, most
significantly, the provision requires nothing more than consultation upon
request; it does not require any additional actions of the party countries.”
[711‑712].
Alternatively, Jeong argues that the U.S. expressly and
impliedly waived jurisdiction, and, therefore. the indictment is invalid.
Again, the Court disagrees. “Implicit in Jeong’s argument is a presumption that
although the U.S. and South Korea both had the right to prosecute him for his
offenses, only one of the two countries was permitted to exercise that right.
Operating under this [alleged] presumption, Jeong argues that the U.S.
impliedly and expressly ceded its right of prosecution to South Korea.”
“In an omission fatal to his argument, however, Jeong fails
to identify any source of domestic or international law that permits such a
presumption. At the outset, we note that it is doubtful whether Jeong has
recourse in domestic law. For instance, we have held that the Double Jeopardy
Clause of the Fifth Amendment ‘only bars successive prosecutions by the same
sovereign.’ U.S. v. Villanueva, 408 F.3d 193, 201 (5th Cir.2005); see also U.S.
v. Martin, 574 F.2d 1359, 1360 (5th Cir.1978) (‘The Constitution of the U.S.
has not adopted the doctrine of international double jeopardy.’) ... Double
jeopardy thus does not attach when separate sovereigns prosecute the same
offense, as here.”
“In addition, Jeong has not pointed us to any applicable
international law that limits the U. S’s jurisdiction over the offenses in this
case ‑‑ nor have we found any in our own research. There are three accepted
sources of international law in the U.S.: [1] customary international law, [2]
international agreement, and ]3] ‘general principles common to the major legal
systems of the world.’ Restatement (Third) of Foreign Relations Law of the
United States § 102(1) (1987) (hereinafter Restatement). ... The ‘exercise of
jurisdiction by courts of one state that affects interests of other states is
now generally considered as coming within the domain of customary international
law and international agreement.’ Restatement ch. 2, intro. note.”
“Jeong, however, has not cited any relevant international
agreement or custom applicable here. Because Jeong has not identified ‑‑ nor
does the record show ‑‑ a legal agreement between the U.S. and South Korea that
would permit a conclusion of jurisdictional waiver in this case, we simply lack
a basis in which to evaluate Jeong’s waiver claims. ...We must therefore
conclude that Jeong’s waiver claim fails.” [712‑713].
Citation: United States v. Jeong, 624 F.3d 706 (5th
Cir. 2010).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
