US legal expert explains the Fifa case

2015-05-31 15:51
FIFA logo. (Steffen Schmidt, Keystone via AP, File)

Wild speculation surrounds the arrest and indictment of nine Fifa officials this week.

But for South Africans, the focus has almost exclusively been on co-conspirators #15 and #16, the two South Africans who are not named but are implicated in the Fifa corruption and bribery scandal.

City Press spoke to Jennifer Rodgers, the executive director of the Center for the Advancement of Public Integrity at the prestigious Columbia Law School in New York, for some answers.

Q:Why are the co-conspirators not named?

A: Typically, federal indictments in the US do not name individuals and entities that are not being charged in that indictment. This is to protect those people and companies from public disclosure, given that they may never be charged at all. To the extent these unnamed co-conspirators are important to the evidence being presented at trial, they will be named at trial. Except under extremely rare circumstances not present here, there are no secret witnesses in the US and no unnamed sources at trial.

Q: Can the co-conspirators still be charged?

A: The co-conspirators can still be charged. In fact, some of them appear to have been charged already in the four companion charging instruments unsealed the same day as the large Fifa indictment. The co-conspirator designation means only that they are not charged in that particular indictment, not that they will not be charged in the future.

Q: Can US courts pursue people who are alleged to have committed crimes outside of the US?

A: US jurisdiction requires ties to the US, both in connection with the charged criminal conduct (called subject matter jurisdiction), and the person being charged (called personal jurisdiction).

The charged conduct here is a large and widespread conspiracy to take bribes through, among other entities, the Fifa confederation that covers the US, which is headquartered in the US. It charges that this confederation and others conspired about bribes regarding tournaments and other events to take place in the US, among other places, that meetings and phone calls related to the conspiracy happened in the US, and that the US banking system was heavily utilised to both pay the bribes and to move money around afterwards in efforts to hide the bribes (money laundering).

Similarly, all of the defendants are charged with having personally availed themselves of the US in committing these crimes. For example, some of them were in the US for meetings or even kept a residence in the US, some made phone calls to the US and many conspired concerning events happening in the US. And virtually all of the defendants used the US banking system to accomplish these crimes, resulting in the money flowing through various US accounts.

The US does not have jurisdiction over crimes committed entirely outside of the US with absolutely no US ties by non-US persons with no US ties.

Q: Now that there is an indictment against several accused, what happens next?

A: The suspects who have already been arrested will enter into extradition proceedings in the countries of their arrest. The case will not begin in the US until at least one defendant arrives here, so unless a defendant decides to waive extradition, there is likely to be at least some delay as the Swiss extradition process (and those in any other countries where defendants are arrested) goes through its paces. No defendants will be subject to prosecution without being present in the US, so that could result in a severance of the case so that earlier arriving defendants can start their proceedings while the court holds the cases of the other defendants in abeyance until their arrival.

Q: Are US courts likely to cooperate with the South African authorities to share evidence that could lead to a prosecution being launched in South Africa?

A: In my experience, if US authorities do not bring a prosecution against someone outside of the US because the US doesn’t have enough evidence, or because there is no chance of getting the person to the US to face charges through the extradition process, US authorities would at least consider sharing evidence with the country at issue to help the country bring its own prosecution. Whether that is done depends largely on the relationship the US has with the country at issue.

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