BOX 9.3
Jurisdiction to Prosecute Money Laundering Offenses in France, the United Kingdom, and the United States
In France, courts have convicted defendants accused of receiving the proceeds of crimes committed overseasa when circumstantial evidence proved that they knew or should have known that the asset was of illegal origin.b Similarly, France criminalizes the laundering of proceeds of predicate offenses committed abroad. For example, French courts convicted a former Nigerian minister who used bribes collected in Nigeria to purchase residences in France. All elements of the bribery offense were committed in Nigeria, but French courts took jurisdiction on the money laundering activities.c In the United Kingdom, authorities may prosecute the concealing, disguising, converting, or transferring of criminal assets derived from crimes committed abroad if the predicate offense also constitutes an offense under U.K. law.d Prosecutors can rely on circumstantial evidence to prove that the asset is generally derived from “criminal conduct”; they are not required to show that the asset was acquired by means of a specific criminal act.e In the United States, money laundering predicates include bribery of foreign officials, embezzlement of public funds, fraud by or against a foreign bank, and any crime for which the United States will be obliged to extradite under an international treaty.f In the prosecution of the former Ukraine prime minister, Pavlo Lazarenko, for money laundering, prosecutors established jurisdiction by demonstrating that funds received through banks in San Francisco, California, were the proceeds of acts of extortion and bribery committed in Ukraine.g a. Article 321–1 of France’s Criminal Code criminalizes recel—the receiving, retaining, concealing, or transferring of ill-gotten items or acting as an intermediary therein, knowing that the items were obtained by a felony or misdemeanor. b. Tribunal of Paris, 11th chamber, 3d section, October 29, 2009, “Angolagate.” c. Court of Appeals of Paris, criminal chamber, section A, March 8, 2009 (France). d. Title 18, United States Code, sec. 1956(c)(7)(B) and sec. 981. NCB confiscation actions may be used to confiscate the proceeds of those same foreign criminal offenses, as well as assets involved in money laundering transactions (sec. 981[a][1][C]). In such cases, the United States can seek confiscation of corruption proceeds held inside and outside of the United States if the underlying crime occurred in the United States (sec. 1355[b][2]). e. United States of America v. Lazarenko, 564 F.3d 1026 (9th Cir., 2009) (U.S.). f. Proceeds of Crime Act, 2002 (United Kingdom), sec. 327 and 340(2). g. Crown Prosecution Service, Proceeds of Crime Act, 2002, Money Laundering Offenses (United Kingdom).
testify. However, decisions on how to proceed, the people to interview, the records to obtain, and the compensation or damages to be requested of the court ultimately lie with practitioners. In civil law jurisdictions or mixed systems, victims (including a state or government) may initiate criminal investigations or proceedings in the foreign jurisdiction as a civil party. Civil parties may be permitted to submit evidence or claims to the prosecutor or investigative magistrate, participate in interviews of witnesses and targets, and have access to the case file. The prosecutor or investigating magistrate ultimately determines if the case has sufficient evidence to proceed to trial. If a trial proceeds, civil parties may apply to the court for a judgment awarding damages in the same manner that they would before a civil court (see chapter 8 for more information on this topic). The action for damages proceeds with the criminal case, on the same basis and evidence. Domestic Confiscation Proceedings Undertaken in Foreign Jurisdictions
I 181