Top Federal Criminal Defense Lawyer Michael Leonard files Motion to Dismiss one of the Counts in the Heather Mack federal criminal prosecution. As has been widely reported, Ms. Mack, after already serving a substantial sentence in Bali arising of the death of her mother, has been charged by Federal prosecutors in the United States District Court for the Northern District of Illinois (Chicago). One of the Counts against Ms. Mack (Count II) charges her with conspiring to violate Title 18 of the United States Code, § 1119 (“Section 1119”).
Section 1119 provides, in pertinent part:
(b) Offense.–A person who, being a national of the United States, kills or attempts to kill
a national of the United States while such national is outside the United States but within the
jurisdiction of another country shall be punished as provided under sections 1111, 1112,
(c) Limitations on Prosecution.
(1) No prosecution may be instituted against any person under this section except upon
the written approval of the Attorney General, the Deputy Attorney General, or an Assistant
Attorney General, which function of approving prosecutions may not be delegated. No
prosecution shall be approved if prosecution has been previously undertaken by a foreign
country for the same conduct.
(2) No prosecution shall be approved under this section unless the Attorney General, in
consultation with the Secretary of State, determines that the conduct took place in a country in
which the person is no longer present, and the country lacks the ability to lawfully secure the
person’s return. A determination by the Attorney General under this paragraph is not subject to
judicial review. Id. (emphasis added).
Accordingly, on its face, Section 1119 bars the prosecution of a defendant in the United States
where the defendant, in this case Ms. Mack, has previously been the subject of a prosecution “by a foreign country” – in this case Indonesia – “for the same conduct.”
Thus, by way of his Motion to Dismiss Count II against Ms. Mack, attorney Leonard is not presenting a Double Jeopardy argument, but rather a statutory argument.
For the bar to a subsequent prosecution in the United States to apply, Section 1119 does not require that the charges that were brought against Ms. Mack in Indonesia be the same as the charges that are now being brought against her in the United States federal criminal proceeding. In other words, the bar against a subsequent United States federal criminal proceeding applies where the “same conduct” is being pursued in U.S. proceeding which was the subject of prior foreign proceeding. Mr. Leonard argues that is just the situation presented in Ms. Mack’s case.
With regard to Ms. Mack, she has already been subjected to an Indonesian criminal proceeding for the very “same conduct” that the Government now attempts to put at issue in her Federal case in the United States, i.e., the events leading up to, and including, the alleged murder of Ms. Mack’s mother, Sheila Von Wiese. Accordingly, attorney Leonard argues, on that basis alone, the Federal District Court should dismiss Count II against Ms. Mack.
Furthermore, Section 1119 required that the prosecution of Ms. Mack in the United States case could only go forward if “the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return.” Section 1119 at (c)(2). That paragraph also makes clear that, if such a “determination” was actually made, the bases for that determination are “not subject to judicial review.”
In Ms. Mack’s case, in the event such a “determination” was actually made, Mr. Leonard is not seeking judicial review of the basis for that determination. Instead, attorney Leonard is only challenging, procedurally, whether such a “determination” was ever made in the first instance by the Attorney General after “consultation with the Secretary of State.”
Mr. Leonard argues in his Motion that, because the Government has not made a showing that such a determination was made after consultation between the Attorney General and the Secretary of State, Count II should be dismissed on that additional basis.
Finally, Mr. Leonard argues that Count II should be dismissed because Section 1119 is facially
unconstitutional because Congress lacked the authority to enact it. It appears that only one other court has addressed this issue head on. See United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Ca. 2015); see also United States v. Wharton, 320 F.3d 526 (5th Cir. 2003), in which the court addressed, and rejected Constitutional challenges of a different type to Section 1119. However, the Brimager decision is not binding upon the Judge in Ms. Mack’s case in the United States District Court for the Northern District of Illinois. Furthermore, Section 1119 has nothing to do with, and does not arise out of or relate to, “foreign commerce.” Accordingly, Mr. Leonard has move for the dismissal of Count II on the basis that Section 1119 represents an unconstitutional expansion of Congress’ power to purportedly regulate foreign commerce.
Written by Michael Leonard
Leonard Trial Lawyers
March 14, 2023