That Pesky Napoleonic Code

August 5, 2015

No asset seizures without charges against a person?  Wait a minute, you not only need charges, but you can’t forfeit assets without a conviction for an underlying non-asset crime?  No “Country of Chile versus one million dollars?”  No “Argentina versus a Mitsubishi Montero?”  So, you can’t have stand-alone money laundering charges against someone without a predicate offense conviction?  No rounding up everyone and their brother in a mass indictment hoping that they will rat each other out to save their own skins?  No historical conspiracies, period?  No undercover operations?  No sealed court orders or affidavits?  The prosecutor’s file must be open for public scrutiny?  This is preposterous.  This is outrageous.

For decades, the U.S. Department of Justice has been suggesting, drafting, and submitting model legislation to countries in Latin America attempting to overcome these horrendous deficiencies.  Latin American countries are so archaic in this area and really need to be modernized.  Repeated U.S. taxpayer funded classes for foreign officials at the FBI Academy, U.S. junkets for foreign judges and prosecutors, and foreign locale training sessions garner a lot of head nodding to complement the per diem and airfare payments, but the students just don’t seem to get it and never want to change.  Apparently the sightseeing trips to the Washington Monument, the Potomac Mills Mall, and the beaches in Rio aren’t paying off.

“You see,” they explain when pressed to conform, “this is not legal in our country.”

“Well of course not, they are all corrupt,” goes the banter in Washington and in the U.S. embassies.  U.S. law enforcement agencies have been trying for years to pull foreign law enforcement officers and prosecutors along by the noses telling them to “just do it,” but for some reason, they keep resisting the enlightened path that is tried and proven in the U.S.

“Look,” explains the Agent instructor to a class full of smiling foreign faces, “I pull a guy over and dig through his car and I see a bag full of money.  I just take it.”

“Do you charge him with a crime?” asks a foreign colonel.

“No, that’s the beauty of it.  We don’t need to deal with any of that.  We have a problem in our country, but we have found a solution.  You see, there is a bigger burden of proof with criminal charges against people than with administrative actions against assets.  Most federal asset forfeitures are administrative not judicial actions.  The validity of the seizure is decided after the fact by the very law enforcement agency that made the seizure.   Even on those rare occasions when they turn into judicial actions, the burden of proof in civil cases is smaller.  The persons losing the money feel lucky that they aren’t being arrested and charged criminally, so they usually don’t fight the asset seizure.  We have ‘Administrative Law Judges’ working within federal law enforcement agencies as part of the executive branch whose positions and salaries are justified by the volume of assets going into the agency’s asset forfeiture fund.  They decide the legality of the administrative forfeitures if the seizures are ever contested.  Guess who wins on those?” He chuckles.  Heads nod.  Information has been imparted.  Glorious pragmatic knowledge has been disseminated that will facilitate foreign operations.  That went well.  Certainly the foreign officials will be greedy enough to see the advantage of going down this path.  The current generation of instructors agrees.  It is soaking in.  It will work this time.  They will come around.

But for some odd reason, things don’t change despite the enlightenment bestowed on them.  So, the U.S. doubles down on its efforts and keeps up the pressure by raining down a continual stream of DOJ prosecuting attorneys all over Latin America designating them as RLAs (Resident Legal Advisors) and ILAs (Intermittent Legal Advisors) under the OPDAT (Office of Overseas Prosecutorial Development, Assistance, and Training) program having them submit voluminous model legislative drafts to Latin American countries with the compelling argument, “Look this is what we do; you do it too.”  But, the ship just won’t change direction.

So, what is the problem?  Well, it has to do with the U.S. government’s invisible nemesis when operating in Latin America, the evil Napoleonic Code.   Most DOJ folks don’t really know what the problem is, but they are dedicated to getting these people to move forward into the modern age.  The former colonies of Spain and Portugal adopted the Napoleonic Code and all its deficiencies.  Troublesome things; like the fact that legislating from the bench is frowned on officially under the Napoleonic system.

Systems growing from English Common Law and the Napoleonic System just don’t merge well.  Sure, they both require submission to authoritarian regimes, but they developed somewhat independently.  The Napoleonic Code evolved from a codification of Roman law (civil law) that was then completely re-worked and re-written in the vernacular to be understood by the common man.  It also codified a disdain for activist judges making case law which was one of the complaints articulated in the French Revolution.  Legislation from the bench, on the other hand, was the very essence of English Common Law.  The United States system of case law and statutes made many quirky turns from the inherited Common Law which brought the U.S. system even farther away from the Napoleonic Code and its modern variants.

One of the big differences in Latin American systems of law enforcement is the concept of “flagrancia” (meaning to be caught red handed; in the very act of committing a crime) which is the basic requirement for the initiation of prosecutorial action.  This word is used continually by Latin American jurists to describe the differences in principles of investigation, arrest, and prosecution south of the border when contrasted with the U.S. system.  Since flagrancia is a requirement for a crime to be prosecuted, the investigation must all be after the fact and related to an obvious crime that is notorious enough to be visible to and perceivable by the public as an out-an-out crime.  The prosecutors, assisted by the police, function as stenographers documenting the open and obvious circumstances of a freshly committed crime.  The prosecution relies heavily on written statements (called declarations) of non-government witnesses.  One of the first steps in the investigation is for the prosecutor to obtain the declarations of all involved.

There is no legal allowance for a supposed “crime in progress” to be left unaddressed while it is monitored, pursued, surveilled, surreptitiously intervened in, studied, preempted, or outright provocateured.  A prosecutor, grand jury, or judge may not sit on the sidelines and be fed juicy tidbits over time by a state official “witness” or affiant as the potential or ongoing “crime” supposedly festers until action is taken via a charging document (like an indictment, complaint, or information) issued at a politically expedient time down the road.  There is no allowance for a crime that has been committed and revealed to not be charged immediately after occurrence or discovery.  The prosecutor functions as the U.S. equivalent of an investigator when a crime is discovered, writing down all the statements while using the police as errand boys.  The U.S. concept of a “case agent” running an investigation is hard for Latin American police and prosecutors to grasp.  The prosecutor makes a determination as to what constitutes the evidence and collects and maintains it himself.

There is no option to formally or informally hold uncharged criminal actions in abeyance, silently lurking and sort of “pending” (maybe) allowing them to recede into history for possible utilization or presentation in the future as part of some sort of a package of conspiratorial activity consisting of criminal elements (“overt acts”); those elements indicating entrance into or furtherance of a conspiracy; acts like giving a guy a ride to his job; acts that will be tied together via some complex charging action that may be taken at some indeterminate time, if ever, in the future.  This perpetual postponing of threatened dubious charges is also the incentive used to compel the actions of many cooperating witnesses, informants, and provocateurs in the U.S.

This would be considered criminal, corrupt, and negligent under the Napoleonic system.  The foreign officials don’t comprehend how the state can be aware of a crime and hide it, keeping it under its hat to be possibly charged whenever it is politically expedient in the future; like after it has wrung every drop of coerced favors from a potential defendant trying to stay out of jail.  Doing so would be considered outright corruption.  Doing so would be providing protection for a suspected party by utilizing a convoluted excuse for inaction.  The Napoleonic posture on flagrancia requires bringing the known crime forward immediately while maintaining an open prosecutor file throughout the judicial action that can be accessed by the public and the media.  A hidden file would indicate that ongoing crime may be occurring that is being ignored, protected, concealed, or falsely manufactured by a secretive prosecutor or judge.  This is reason that the whole concept of ongoing long-term “conspiracy investigations” and undercover action smacks of corruption to the Latin American jurist who is trained that he must be transparent to the public, quick to present charges, and only address cases of immediate obvious red-handed crime.

The concept of a “charging decision” itself is almost unknown since the visible crime brought itself to the forefront and the rest is just a matter of the bureaucracy documenting the details for review by a judge.  There are also a lot of cases adjudicated in favor of defendants by judges in Latin America.  This is because the judiciary actually makes a determination of guilt upon review of the evidence (not just a rubber stamping of a charging decision made by the police or the prosecutor).  The judiciary is actually reviewing the witness statements and deciding on guilt based on the weight and credibility of the evidence rather than allowing the police or prosecutor to fulfill that function by merely making a charging decision.  If there is a potentially guilty person and a couple of witnesses, then the person and the witness statements are automatically and almost mechanically forwarded by the prosecutor to the judge for a review of the evidence.  The police have little or no say so in this process.

Can’t we all just get along?  Happily, so far, no.  The pride of the two groups of arrogant statists is partially preserving some freedoms (or better stated opposing some extrajudicial punitive action) for some people where the Venn diagram of opposing “justice” systems intersects.    The best lesson from this might be that less hegemony results in less oppression for some, even if it only occurs because of stubborn state officials butting heads with each other.

But, don’t some of these prohibited things occasionally happen anyway?  Well, that’s a different story about paid-off foreign officials taking bribes and endorsing variants and exceptions that will likely be thrown out if they ultimately land in a foreign rather than U.S. courtroom.  And those corrupt foreign officials do it, well, for lots of Fed generated paper; such monetary swaying of foreign officials being in the benevolent purview of the U.S. government.  It is way too addicting, corrupting, and immoral a practice to be permitted to private U.S. parties (who must be punished for such sleazy action).

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