Asylum (PowerPoint) by yurtgc548


									                 Bucharest, Romania
                  September 2010

               Glenna MacGregor
                   Trial Attorney
     Human Rights and Special Prosecutions Section
                   Criminal Division
              U.S. Department of Justice
   Organ trafficking: the problem and responses

   U.S. regulatory approach

   U.S. federal law – NOTA

   U.S. criminal prosecutions

   U.S. case studies
Overview of the most common U.S. scenarios

U.S. citizens and       Non U.S.-donor
residents travel       travels to U.S. for
     abroad              transplantation

            makers arranging
            Possible Responses

Ban foreign                      Restrict to
 recipients                       related
                    Focus on
 Criminalize                      Open or
 coercion of                     quasi-open
the “helpless”                     market
            U.S. Regulatory Approach
                       U.S. Health and Human Services

                       United Network for Organ Sharing

  Oversees organ                Manages organ              Oversight/guidance
   procurement,                   waiting list            for transplant facilities
donation, transplant
            Requirements of Donor
   Medical screening
   Questionnaire
     Nationalityand ethnicity
     Educational background

     Employment information

   Psychological evaluation
   Financial planning
   Informed consent
                  Informed Consent
   The patient’s diagnosis, if known
   The nature and purpose of a proposed treatment or procedure
   The risks and benefits of a proposed treatment or procedure
   Alternatives (regardless of their cost or the extent to which the
    treatment options are covered by health insurance)
   The risks and benefits of the alternative treatment or
   The risks and benefits of not receiving or undergoing a
    treatment or procedure
* Donor can back out at any time and the reasons for
  that decision remain confidential.
    Other Relevant Entities

  Federal          Professional
 agencies          associations
(CDC, DEA)            (AMA)

  NGOs             States (state
 (Organs             licensing
  Watch)             boards)
    National Organ Transplantation Act (NOTA) of 1984
                   42 U.S.C. § 273-74

    It is “… unlawful for any person to knowingly
    acquire, receive, or otherwise transfer any human
    organ for valuable consideration for use in human
    transplantation ...”

   Amended in 2007 to permit paired donation
   Establishes regulatory framework
   Creates criminal offense
                 Criminal Offense Issues

   Scienter requirement: “knowingly”
   Focus on organs as opposed to people?
   Valuable consideration – does not include
    reasonable expenses/compensation
   Potential sentence
                Criminal Offense Issues cont.

   No criminal liability for attempt
   Does NOT create civil private right of action
   Jurisdictional questions
     Federal via U.S. Constitution
     Extraterritorial?
      Challenges in Investigations/Prosecutions

   Choice of defendant
   Payment = valuable consideration?
   Problems proving mens rea
   Jury appeal
             U.S. Litigation: NOTA

Immigration law       Criminal law       Criminal law

• NOTA              • Conspiracy to    • Conspiracy to
  conviction is a     harvest            coordinate
  “serious non-       corneas from       donation
  political”          executed           between
  crime               Chinese            buyer and
• Bar to asylum       prisoners          seller
  eligibility       • Thrown out for   • Currently
                      evidentiary        pending in
                      problems           New Jersey
U.S. Litigation: Other theories?
Case Study:
United States v. Levy Izhak Rosenbaum

In 2009,
was arrested
on charges
that he
agreed to
broker a sale
of a kidney
by an Israeli
donor to a
recipient in
the U.S. for
                Investigation Techniques

   Context of ongoing investigation of other crimes
    and other targets
   Use of undercover agent
   Use of cooperating witness
   Setting up the sale
   Evidence of other brokered agreements

   Legal theories:
     For UC operation, conspiracy charge
     Substantive NOTA violation for completed sales

     Possible wire fraud charges

   Sentencing considerations:
     Asset

     Money laundering
Case Study:
Hypothetical fact pattern

In 2009, S.,
pays C
$25,000 for a
kidney. They
tell the
team they met
in bible class.
They do not
speak the
same language
and do not
appear to
know each

   Who is the defendant?
   Was the payment valuable consideration?
   If it happened overseas, jurisdiction?
   Immigration crime of donor?
   Sentencing/punishment – seize assets?
      Glenna MacGregor
         Trial Attorney
  Human Rights and Special
    Prosecutions Section
       Criminal Division
  U.S. Department of Justice
 1301 New York Avenue N.W.
   Washington, D.C. 20350

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