While conducting some year end office cleaning, I found a copy of correspondence that took place during the investigation of the implementation of the Foreign Narcotics Kingpin Designation Act (Kingpin Act) by the Judicial Review Commission on Foreign Assets Control. This correspondence was interesting and made me think of my clients who have been designated as Specially Designated Narcotics Trafficking Kingpins (SDNTKs) pursuant to the Kingpin Act.

Many times these individuals don’t understand or can’t believe that the United States Department of the Treasury Office of Foreign Assets Control (OFAC) can take such an extremely broad and aggressive approach towards the designation of parties they believe to be engaged in narcotics trafficking. This is especially true when those parties have never previously been prosecuted for charges relating to drug trafficking. However, this paragraph from a October 13, 1999 letter from former OFAC Director Richard Newcomb to former U.S. Senator Paul Coverdell says it all:

“We object to the addition of any of the following words into the administrative process for identifying significant foreign
narcotics traffickers and their organizations: “knowing”, “willful”, or ‘intentional”. It has been proposed to insert “knowing and willful” (alternatively “intentional”) into section 703(a) (1) (A) [page 4, line 201], and into the definition of “significant foreign narcotics trafficker” in section 708(5) [page 20, lines 25-261].

The use of “knowing”, “willful”, or “intentional” would impose an unreasonable additional obstacle to the designation of foreign narcotics kingpins and their organizations. It sets a higher evidentiary threshold, making it more difficult for the Secretary to compile a sufficient record upon which to recommend significant foreign narcotics traffickers and their organizations for designation by the President. Documenting the state of mind of a foreign narcotics trafficker is likely to be difficult, if not impossible, even when there is, in fact, no doubt about that person’s narcotics trafficking activities. In the case of a trafficker’s organization, there is no viable means to assert that an organization has a “state of mind” much less to prove what constitutes that organization’s “state of mind.” We believe that the existing standards for designation are rigorous enough to avoid arbitrary and capricious actions under the proposed law.”

As a federal criminal defense attorney, I have to take exception to Mr. Newcomb’s statement that “Documenting the state of mind of a foreign narcotics trafficker is likely to be difficult, if not impossible…” Actually, the words “knowing”, “willfully”, and “intentional” are found throughout the United States Code, including those statutes criminalizing narcotics trafficking. As such, federal prosecutors are required on a daily basis to prove to juries that defendants, even those accused of narcotics trafficking, acted “knowing[ly]”, “willful[ly]”, or “intentional[ly]”. The day that proving the “state of mind” of a narcotics traffickers becomes impossible is the day defense attorneys all over the country rejoice and the day that U.S. Attorney’s Offices’ all over the country begin laying off staff by the thousands.

I know that OFAC would make the distinction that they are taking an administrative action and not seeking a criminal conviction; however, both acts are directed at punishing an individual for the same conduct. The fact that OFAC deemed having to prove the “state of mind”–or mens rea for you law students out there–as too great of impediment to their designation process is indicative of how aggressive they are enforcing the Kingpin Sanctions Regulations and designating parties pursuant to the Kingpin Act. Ultimately, it is this thought process that allows OFAC to deem someone a significant narcotics trafficker, even when no prosecutorial authority in the world has attempted to convict them as such.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC litigation. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.