Application of Definitional Provisions To Officials
the Coordination Council for North American AffairsTaiwan
- Status As a Foreign Official
- In view of the diplomatic posture between the United States and
there is a question whether officials of its Coordination Council for North
American Affairs (CCNAA) are protected under 18 U.S.C. § 1116 and other
statutes that rely upon its definitional provisions. In the opinion of the
Criminal Division, CCNAA officials fall within the definition of the term
"foreign official" as used in 18 U.S.C. § 1116(b)(3)(B), by virtue of
Taiwan Relations Act, 22 U.S.C. §§ 3301 et seq., and
Order 12143 at § 1-204, 44 Fed.Reg. 37191. Thus the following sections
Title 18 prohibit offenses against CCNAA officials: 18 U.S.C. § 112
(assault), 18 U.S.C. § 878 (threat), 18 U.S.C. § 970
property), 18 U.S.C. § 1201 (kidnapping), 18 U.S.C. § 1116
18 U.S.C. § 1117 (conspiracy to murder).
- Proving Notification
- Proving that the CCNAA is "duly notified . . . as officer or
of a foreign government" requires resort to the Taiwan Relations Act. Thus
officers and employees of the CCNAA should be treated as officers and
of a "foreign government" for the purposes of 18 U.S.C.
Cf., United States v. Irick, 497 F.2d 1369 (5th Cir. 1974),
cert. denied, 420 U.S. 945 (1975); United States v. Lopez,
F.2d 978 (2d Cir. 1978), cert. denied, 440 U.S. 923 (1979).
- The notification procedure for CCNAA officials is not the same as
procedure for accreditation. Cf., United States v. Dizdar,
F.2d 1031, 1033-34 (2d Cir. 1978). Thus, whether CCNAA officials are "duly
notified" calls for the judgment of the Chief of Protocol in the Department
State, who is prepared to certify that such persons are "duly notified"
the meaning of 18 U.S.C. § 1116(b)(3)(B), 22 C.F.R.
- Indictments and Pleadings
- The Department of State believes that indictments and pleadings
are not precisely drawn to reflect the unofficial nature or relations with
may have an adverse impact on foreign affairs. The Department of Justice is
prepared to accommodate the concerns of the Department of State unless a
prosecution would be jeopardized. Consequently, all matters involving
against CCNAA officials should, absent emergency circumstances, be brought
attention of the Criminal Division prior to Federal arrest and should in all
cases be brought to the attention of the Criminal Division prior to
The Criminal Division recommends that indictments describe, in part, the
in the following manner: "X did willfully and unlawfully (assault,
etc.) Y, who is a "foreign official' within the meaning of § 1116 of
18, United States Code, by operation of the Taiwan Relations Act." Any
difficulties which are anticipated as a result of this language should be
to the attention of the Criminal Division prior to indictment.
[cited in USAM 9-65.800]