A large and sophisticated literature examines the normative desirability of granting "direct effect" to WTO law in domestic courts. However, much of this scholarship focuses on civil litigation. A related, but largely unexplored, question relates to the impact, if any, of WTO law on criminal prosecutions. In particular, can individuals be criminally prosecuted for violation of domestic laws found to be WTO-inconsistent?
A U.S. district court recently addressed this issue. The case involved a criminal prosecution for, inter alia, violations of the Wire Act. The defendants argued that the Wire Act charges should be dismissed "because (1) the Charming Betsy canon of construction and the principle of international comity dictate that the Court interpret the Wire Act . . . so as not to violate [WTO] violations; and (2) the WTO's Appellate Body decision in the Antigua gambling case is self-executing and therefore binding upon this Court."
In U.S. v. Lombardo, the federal district court for the District of Utah had little difficulty dismissing these arguments. First, the court held that the Charming Betsy argument was unavailing because this canon of construction comes into play only when federal statutes are ambiguous. However, the court held that the unambiguous terms of the Wire Act clearly apply to online gambling. The court then held that defendants could not rely upon the AB report in the Gambling dispute because U.S. courtrs are not bound by AB reports, and because the implementing legislation expressly forecloses "any cause of action or defense under any of the Uruguay Round Agreements" to parties other than the federal government.
As Simon has noted, a similar motion to dismiss on the basis of the Gambling report is pending in the criminal prosecution of Gary Kaplan and Betonsports in the Eastern District of Missouri. The Lombardo decision is broadly consistent with other federal court decisions refusing to give effect to panel or AB reports in civil litigation. See, e.g., Corus Staal v. U.S.
Are others aware of any other jurisdictions that have considered the "direct effect" question in the criminal context? Are there legal or policy reasons to have a different rule on "direct effect" when it comes to criminal prosecutions?
Jeff Dunoff
P.S. Thanks to Simon Lester for tracking down a copy of the Lombardo decision, which can be accessed here.
