It is a criminal offense under this section for a U.S. national to murder another U.S. national outside the United States, if the murder occurred within the jurisdiction of a foreign country.
There are several statutory limitations to this type of prosecution. Before a prosecution can be initiated, the Attorney General, Deputy Attorney General or Assistant Attorney General must provide written approval. This approval cannot be granted if a foreign country has already prosecuted the alleged killer for the same conduct. Additionally, approval can only be granted if the Attorney General makes a determination, after consultation with the Secretary of State, that the killing took place in a country in which the suspect is “no longer present” and that the foreign country “lacks the ability to lawfully secure the person’s return.”
The Attorney General has delegated these statutory determinations and approvals to the Assistant Attorney General for the Criminal Division. The Human Rights and Special Prosecutions Section has been designated as the Criminal Division’s point of contact for all matters regarding the process of obtaining AG / AAG approval to prosecute pursuant to 18 U.S.C. § 1119.
The Department has formally approved several Section 1119 prosecutions, including the following reported cases: United States v White, 51 F. Supp. 2d 1008 (E.D. Cal. 1997); United States v. Nipper, 198 F. Supp. 2d 818 (W.D. La. 2002); and United States v. Wharton, 320 F.3d 526 (5th Cir. 2003); United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Cal 2015). These reported decisions upheld the Government’s use of the statute, and held that the Attorney General’s determination regarding the statutory requirements contained within Section 1119 is not judicially reviewable.
The Department has taken positions in previous Section 1119 matters regarding several aspects of the statute, including when a foreign country has previously “undertaken a prosecution;” the meaning of “same conduct;” when a certain foreign country may lack the ability to lawfully secure a defendant’s return to that country to be prosecuted; and the applicability of the statutory limitations in Section 1119 to a conspiracy to commit a foreign murder pursuant to 18 U.S.C. § 1117.
Any USAO or other Department component seeking approval to bring a § 1119 prosecution shall promptly notify HRSP and submit a written request well in advance of the proposed prosecution. The written request should include:
- a prosecution memorandum;
- a copy of the proposed indictment, information, complaint;
- a detailed explanation as to the federal interest in prosecution; and
- a proposed timeline for submission of the indictment / superseding indictment to the grand jury.
HRSP has collected information and resources regarding prosecutions pursuant to Section 1119, and any office seeking approval is encouraged to seek informal advice from HRSP before submitting a request for approval. The office submitting the request should allocate sufficient lead time to permit review, revision, discussion, and coordination with the Secretary of State before scheduling the grand jury.
[new April 2018]