American case law (see Caicedo [104] and Klimavicius-Viloria [106], supra) further indicates that even in cases where the act is a conspiracy to commit an offense within the United States, and no action to realize it took place on American soil, the conspirators can be prosecuted in an American court without this being considered a violation of their right to a fair trial. To complete the picture, it should be noted that not everyone was comfortable with the matter. It has been argued that too broad the application of the law to acts that occurred outside the territory could become a potential tool for aggressive advancement of U.S. foreign policy. Therefore, it was proposed to qualify the "sufficient conspiracy" rule and determine that where the result of the criminal act was unforeseen, or where the defendant had no prior control or knowledge of the actions of his co-conspirators in the country seeking to apply its laws, the application of the law would be considered unfair (L. Brilmayer, C. Norchi “Federal Extraterritoriality and Fifth Amendment Due Process” [145], at
pp. 1223, 1260).
- So far in principle, but the issue, first and foremost, has practical significance. The question that arises is whether the expansion of the scope makes it difficult for defendants to properly conduct their defense, if it prevents them from accessing evidence and witnesses who are outside the state, if it makes it difficult for them to bear the cost required to manage the defense, and so on. This issue came up for examination in the Yousef [73] The aforementioned. The U.S. Court of Appeals' ruling was unanimous-In other words, mere claims are not enough. The person who claims that the fairness of the proceeding has been violated must point to a concrete obstacle. In the same matter, the claim of harm to-“Due process” When it was found that access to all relevant evidence material had been preserved, that the state itself provided some of the required material, that the U.S. court funded the defense's efforts to gather material in the country of origin, and that the defendant himself did not use all the tools at his disposal to gather evidence (Ibid. [73], On p. 112 onwards).
Cross-border offenses - coping with a new criminal reality
- All that has been said so far is particularly relevant to offenses whose nature are not limited to the boundaries of a single country. Such are, for example, global terrorism, human trafficking offenses, money laundering, dangerous drug trafficking, and computer and Internet offenses, which often have additional features-Clearly territorial. They also include conspiracy acts that are connected in a particular country to the commission of offenses in a certain country. The foundations of these acts may spread over the territory of several countries, as well as the violations that arise from their committal. Take, for example, a plan to distribute a dangerous drug that is being formulated by conspirators located between the ends of the world, which involves the purchase of the drug in one country, its transfer to another country, and its sale in that country
Third. All this while the financing for its purchase also crosses continents, as do the proceeds generated by the sale of the drug.