Last week the United States Attorney’s Office for the Southern District of New York (USAO SDNY) announced the extradition of Jose Evaristo Linares Castillo, a Specially Designated Foreign Narcotics Trafficking Kingpin (SDNTK) as designated by the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC), from Colombia to the United States. According to the superseding indictment filed in July of last year, Linares Castillo was the head of a Colombian criminal organization which trafficked large amounts of cocaine from Colombia through Venezuela to others parts of the world, including the United States. In order to facilitate these activities, it is alleged that Linares Castillo made payments and used the assistance of the Fuerzas Armadas Revolucionarias de Colombia (FARC), an entity designated as an SDNTK, a Foreign Terrorist Organization (FTO), and a Specially Designated Global Terrorist (SDGT).

Although the majority of the charges in the indictment related to narcotics trafficking offenses, Linares Castillo is also being charged with a violation of 18 USC 2339B for providing material support to a designated FTO. The authority for the FTO designation, and the criminalization of supporting those designated as FTOs, comes from the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). As readers of this blog may be aware AEDPA is not the typical authority under which sanctions designations are made; that would be the International Emergency Economic Powers Act (IEEPA). In the case of the FARC, however, the organization is designated under the AEDPA authority (as an FTO), under IEEPA (as an SDGT), and under the Foreign Narcotics Trafficking Kingpin Designation Act (as an SDNTK). As such, it would seem Linares Castillo could have been charged with violations of IEEPA and the Kingpin Act in addition to the 18 USC 2339B charge, right?

Actually, the answer is no. USAO SDNY is one of (if not THE) most aggressive U.S. Attorney’s Offices in the country. Indeed, they even have a policy for cooperating defendants that if they admit to something during cooperation that the government didn’t know about, the cooperator will be charged with that crime. In short, they charge everything they are able to charge, so why charge Linares Castillo with the 18 USC 2339B offense which carries a 15 year maximum term of imprisonment, when they could have possibly charged him with a 50 USC 1705(c) charge that would carry a maximum term of imprisonment of 20 years?

The answer lies in the extraterritoriality of the AEDPA statute, which applies to “whoever” provides material support to an FTO. This differs from IEEPA and Kingpin Act violations which only apply to U.S. persons. As such, the person engaging in a prohibited activity with an FTO does not need to be considered a U.S. person in order to be prosecuted under 18 USC 2339B. Since Linares Castillo is not a U.S. person, the prohibitions of 31 CFR Part 594 applicable to dealings with SDGTs, and those of 31 CFR Part 598 applicable to dealings with SDNTKs, did not make him criminally liable under U.S. law for his alleged transactions with the FARC. However, a prosecution for dealing with an FTO was brought because it applies to whoever, and that can include foreign nationals. Legal technicalities aside, SDNY now has Lianres Castillo in their district and if they have any evidence he transacted with the FARC, his status as a foreign national will not hold up as a defense.

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