Except of course if this conversation happens prior to retrieving the checked baggage ( which I assume is **not **placed on the carousel), the passenger isn’t in possession of the firearm.
I disagree. In almost all instances states can enforce their gun laws. I agree that the standard is probable cause and not putting aside every explanation of innocence.
So, in your example, if you are a New York resident and are pulled over and found with a gun without a New York license, maybe you could lie and say that you were on your way to Florida. Where in Florida? How are you getting there? Do you have any luggage with you? How long are you staying in Florida? Why are you on I-43 when you live in Yonkers and about 40 miles outside of the direct way to where you say you are going?
But an airport is a place where people travel to and from and these destinations can be verified by the boarding passes. The fact that the previous plane was re-routed can be easily verified by the airline.
As far as Torraco, he could legally possess his firearm in NJ. If he was not on an trip out of state, he could not have taken the gun to his mother’s house. We agree with that. But the stop at his mother’s house was one on the way to the airport and part of his journey outside of New Jersey. It makes no sense to say that he has to either leave his gun at home for his travel, or refuse to visit his mother. Is it not part of a normal and customary trip to stop by and see relatives for a few hours? I agree that if he stayed for a week, then we can argue that it wasn’t really a trip out of state.
I further disagree with this idea that these poor officers cannot be tasked to know the law. If they don’t know the law, then why do they have arrest powers or are arresting me? They should admit that they do not know the law and not be arresting anyone for that particular topic of which they are ignorant.
As far as not having possession of the gun because it is in your checked bag, I disagree. Imagine if a pound of black tar heroin was in your bag. You think you could get out of the possession charge in New York because the airport had it?
He could be arrested and would probably released as soon as someone looked at his case. If the passenger then sued he would probably win on appeal, and depending on how much the penalty is you can bet airport security won’t let that happen again.
~Max
If I may ask a tangential question, does there need to be a separate trial in one state/nation for something that was convicted in another state/nation?
Say, America has a law that bans Americans from using LSD anywhere on the planet, and an American tourist gets convicted in Egypt, under Egyptian law, of using LSD - would that be enough to get the American automatically convicted of breaking American law as well, due to having broken American law?
(and since the OP is about states, suppose the eyebrow-plucking is illegal for Oklahomans no matter where, then if someone is convicted of breaking California law by plucking eyebrows in California, does Oklahoma get to automatically slap on a charge for violation of Oklahoman law?)
I don’t think we assert extrajurisdictional authority for drug use in Egypt, unlike say taxes. But if it was determined that the American brought LSD from America, thereby breaking an American law by exporting controlled substances, we might resort to extradition for breaking the American law. Especially if Egypt has a penchant for letting LSD users off the hook.
ETA: He would not be automatically convicted. It is extremely unusual for an American court to convict in absentia. This is because a trial in absentia directly contradicts the accused’s rights under the Fourth, Sixth, and Fourteenth amendments.
~Max
I see. Does the Constitution require that all evidence be produced or discovered independently, anew, for a U.S. trial of the matter, or could it use foreign-derived evidence? Say, for instance, that John Doe was convicted of using LSD in Egypt because an Egyptian testified in Egyptian court against him. If a U.S. court were to try Doe for the use of LSD, would that Egyptian’s testimony be inadmissible since it wasn’t testimony given in a U.S. court?
Laws that are extraterritorial to the United States are above my pay grade. However, as the United States is a sovereign country with no earthly higher power that could stop it from doing what it wanted, if it wanted to punish you for spitting on the sidewalk in Tunisia, it could do so, only subject to its own power.
States, as I’m sure you know, are cabined by the authority of the federal government, not only with the federal power in its own right, but its willingness to enforce the powers of the other states. So if New York wants to have legal abortion up to whatever number of weeks, the federal government would be very reluctant to allow Georgia to enforce a law that prohibits its citizens from going to New York and enjoying the privileges and immunities of New York while present in that state.
And vice versa. If citizens from New York want to carry handguns legally in other states that permit it, and New York tries to stop it, that would be very much frowned upon by the feds.
According to Rule 28(b) of the Federal Rules of Civil Procedure, foreign depositions may taken under an applicable treaty or convention, under a letter of request, on notice in eg: the US consulate under oath in the foreign country, or by a foreign minister presenting the evidence in person.
Rule 28. Persons Before Whom Depositions May Be Taken
[LIST=a][li]WITHIN THE UNITED STATES…[/li][li]IN A FOREIGN COUNTRY.[/li][ol][li]In General. A deposition may be taken in a foreign country:[/li][LIST=A][li]under an applicable treaty or convention;[/li][li]under a letter of request, whether or not captioned a “letter rogatory”;[/li][li]on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or[/li][li]before a person commissioned by the court to administer any necessary oath and take testimony.[/ol][/li][li]Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued:[/li][LIST=A][li]on appropriate terms after an application and notice of it; and[/li][li]without a showing that taking the deposition in another manner is impracticable or inconvenient.[/LIST][/li][li]Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed “To the Appropriate Authority in [name of country].” A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken.[/li][li]Letter of Request - Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States.[/LIST][/li][li]DISQUALIFICATION. A deposition must not be taken before a person who is any party’s relative, employee, or attorney; who is related to or employed by any party’s attorney; or who is financially interested in the action.[/LIST][/li]
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 1, 2007, eff. Dec. 1, 2007.)
Egypt and the United States are signatories to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also known as the Hague Service Convention. This convention provides a procedure for servicing legal documents via letters rogatory.
That is not to say foreign evidence cannot be thrown out on other grounds. But foreign evidence will not be thrown out on the basis of a foreign deposition, provided the correct procedure is followed.
~Max
I don’t think the responses to this question so far have actually addressed your point, so let me rephrase the question slightly to (possibly) make it clearer:
Suppose Oklahoma has a law making it illegal for a citizen (or resident) of Oklahoma to get their eyebrows plucked anywhere in the world. The elements of the crime are (1) the pluckee is a citizen or resident of Oklahoma and (2) the pluckee had their eyebrows plucked.
John Smith is convicted of getting his eyebrows plucked in a California court, in violation of a California law. When John Smith returns home to Oklahoma and is charged with violation of the Oklahoma law, does the prosecution have to prove de novo that John Smith had his eyebrows plucked in California? Or can the Oklahoma prosecutor simply present the California guilty verdict to the Oklahoma court and claim res judicata?
Bonus twist: Lawyer for the eye-brow pluckee argues that the defendant left the state, was a resident of the other state, got plucked, decided to return to the first state and became a resident there again.
Maybe that’s a lost cause, but then you get into situations were the defendant had only been in the anti-plucking state a few weeks before traveling for the pluck of it and then coming back.
How far can a state go in trying to restrict “residents” when, legally, it’s always been something of a mash up? (Different rules regarding voting eligibility, driver’s licenses, in-state tuition, etc.)
Thanks, that’s exactly what I meant. If an American uses LSD in Egypt and is convicted under Egypt law, would the Constitution ban U.S. courts from simply “regurgitating” the evidence, data etc. from that Egyptian court hearing and using it to slap on an additional punishment on the U.S. citizen?
Does U.S. law require evidence to always be freshly and newly derived on its own? i.e,. witnesses, forensic evidence, all would have to be sought out and discovered anew.
State sovereignty ends at the state border. The state of Oklahoma has no inherent jurisdiction over acts performed in California and therefore has no inherent right to criminalize such extra-jurisdictional acts. The defendant, Mr. Smith, need only point out that Oklahoma has no jurisdiction and move to dismiss. There is no issue with the evidence as a federal court would have jurisdiction on appeal and the federal rules for depositions do not distinguish between one state court and another, so long as the oath is taken. They shouldn’t even reach the point of admitting evidence.
It makes no difference if the perpetrator of such acts is a resident of California or a resident of Oklahoma. Consider if California passed a law requiring all people in the state to pluck their eyebrows. According to Article IV Section 2, Amendment V, and Amendment XIV (plain reading, without incorporation), California is not allowed to make or enforce a law that selectively excludes residents of Oklahoma. A resident of Oklahoma is a citizen of the United States, and by virtue of Article IV section 2 and Amendment XIV is subject to the laws of California while in that territory. Therefore, if Oklahoma also has jurisdiction in California, Mr. Smith is unable to legally travel to California, effectively contradicting the fundamental right to freedom of movement. The right to freedom of movement is not explicitly listed in the United States Constitution, but it is incorporated through Amendment XIV and has a clear legal history including enumeration in Article IV of the Articles of Confederation.
~Max
That has almost nothing to do with the question asked. The deposition itself is hearsay and it generally would not be admitted at a US trial due to to the Sixth Amendment Confrontation Clause.
Yes, a separate trial would be required. The evidence would not all need to be “discovered” independently, but it would all need to be admitted into the U.S. trial. In the criminal context, witnesses’ testimony from the previous trial (e.g., video footage or a transcript) would not be admissible because of the Confrontation Clause. The prosecution could not, for example, say, “Steve Egyptianguy testified at a trial in Cairo that the defendant was arrested with six ounces of LSD in his pocket,” but it could have Steve come and testify in the US.
If the Egyptian’s testimony was the smoking gun, and the Egyptian cannot come to the US for whatever reason (eg: is dead), prosecution can (will) still try for a hearsay exception under Rule 804 or 807. Defense might raise a constitutional objection over the confrontation clause, resting on Crawford v. Washington 541 U.S. 36 (2004). Prosecution would then have to argue that defense did have an opportunity to cross-examine the Egyptian witness, during the Egyptian trial, and that this satisfies Crawford v. Washington’s requirement for previous cross-examination. In order to back that up the prosecution would move to admit records of the Egyptian trial under Rule 803(8), not for jury review but for the judges on appeal to determine whether Mr. Smith had an opportunity to cross-examine the witness in Egypt.
I can’t say that I am aware of any case law for such an unusual situation, the closest I can find is U.S. v. Garland, 991 F.2d 328 (6th Cir. 1993) where the defense won a new trial after a foreign witness who testified in a foreign trial became available; or Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 412 (6th Cir. 2007) where Korean witness statements and interrogation transcripts were admitted under rule FRE 804 and Korean indictments admitted under FRE 803. The Sixth Amendment didn’t apply in Garland where the defense moved to admit the evidence, and I did not see a Sixth Amendment objection in Mike’s Train House, Inc. v. Lionel, LLC.
~Max
Why would there be an objection based on the Sixth Amendment, which applies "In all criminal prosecutions . . . " in a civil case like* Mike’s Train House*?
Doh. That would explain it. But the FRE is common so in theory the same exception could be used in a criminal case.
~Max
Could the US court sentence him again if he has already been sentenced in Egypt for this crime? I know that under French law, this wouldn’t be possible. And since American law is much stricter than French law wrt double jeopardy, I would expect a prosecution to be impossible there too in this case.
Egypt and the United States constitute two separate sovereigns. Thus one act would cause two distinct crimes, a crime against Egypt and a crime against the United States.
~Max
I think double jeopardy only applies for the same charge in the same nation.
I don’t see why not. Until recently, it was illegal for American citizens to smoke Cuban cigars anywhere in the world.