Down went the U.S. district judge’s gavel—and a home valued at nearly three quarters of a million dollars in the Maryland suburbs of Washington, D.C., no longer belonged to the Honorable Diepreye Solomon Peter Alamieyeseigha (“DSP”), former gover- nor of oil-rich Bayelsa State in Nigeria. The court held that full legal title to that residence passed to the United States Government (“USG”).2 In another courtroom, down went the gavel of another district judge, who ordered over $115 million in a frozen Swiss bank account belonging to the Government of Kazakhstan to be disbursed to an independent foundation to benefit the people of that country. In yet another courtroom, down went the gavel, and Teodoro Nguema Obiang (“Teodorín”), son of the president of Equatorial Guinea and holder of the office of “second vice presi- dent,” agreed to the USG’s seizure of a set of life-sized Michael Jackson statues originally from the entertainer’s Neverland Ranch, their sale at auction, and the depositing of the proceeds into a USG account where they would become fully vested property of the United States.4
These seemingly disparate cases, involving a former gover- nor, a national government, and a vice-president who was also the son of a head of state, led to loss of title to real estate and cash and other personal property. None included a criminal conviction. All were outcomes of prosecutions brought by the U.S. Department of Justice (“USDOJ”) as part of a new venture, the Kleptocracy Asset Recovery Initiative (“Kleptocracy Initiative,” “USDOJ-KI,” or “KI”).
What exactly is the Kleptocracy Initiative? It can best be viewed as a policy initiative and ongoing program of prosecutorial activity operating within the Asset Forfeiture and Money Launder- ing Section (“AFMLS”) of the USDOJ’s Criminal Division since July 2010. Its stated objectives are “to identify the proceeds of foreign official corruption, forfeit them, and repatriate the re- couped funds for the benefit of the people harmed.” The typical target is a prominent public official or ex-official or a close rela- tive—“politically exposed persons” in international anticorruption parlance. The chief methodology for prosecutions begins with intensive investigation, almost always jointly with the FBI or other federal agency, and often in cooperation with a foreign investiga- tive body.9 Next comes identification of assets within the U.S. believed to be proceeds of foreign corruption. This lays the groundwork for a federal in rem civil forfeiture action. Procedur- ally, the main basis for these prosecutions is the federal civil asset forfeiture statute, U.S.C. Section 981; the typical substantive legal foundation is based on the money laundering statutes, U.S.C. Sections 1956 and 1957.10
Successfully forfeited assets then become USG property. The forfeiture of over $1 million in assets from DSP was its first success, but it is far from the largest prize netted by the USDOJ- KI. In its biggest monetary seizure to date, the Kleptocracy Initia- tive forfeited over $458 million in funds traceable to General Sani Abacha, Nigeria’s de facto ruler for much of the 1990s and of whose regime DSP was an ally. Other successful forfeitures have ranged from the hundreds of thousands of dollars to over $100 million.
The Kleptocracy Initiative, then, is an attempt to systema- tize and institutionalize an innovative, hybrid practice in which the USG asserts jurisdiction over property located within the United States, but the underlying criminal activity giving rise to the civil asset forfeiture proceedings occurred outside of the United States. Thus, USDOJ-KI seems to embody the vigorous exercise of a novel form of extraterritoriality—where enforcement is hyper-local, but the underlying offense was committed abroad. Due to its procedural framework, it also represents the transnational side of the dramatically growing practice of domestic civil asset forfeiture. It stands squarely within the international legal movement, also of the past two decades, to go beyond the “supply side” of interna- tional corruption as addressed by the Foreign Corrupt Practices Act of 1977 to pursue the “demand side”—those on the receiving end of bribes and other forms of corruption.
By PABLO J. DAVIS
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