International Law Update

Eighth Circuit rules in criminal proceeding that Doctrine of Specialty and U.S.‑Mexico Extradition Treaty do not bar consideration of prior criminal history at Federal Court sentencing

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Furthermore, the Supreme Court has held that the “use of evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment. Witte v. United States, 515 U.S. 389, 399… (1995).”

Finally, the Court expresses “some doubt whether Mexico intended the doctrine of specialty to shield Defendant in the manner he asserts. Although Defendant’s extradition resolution purports to prohibit the United States from using Defendant’s pre‑extradition conduct ‘even as aggravating circumstances,’ the resolution grounds this ‘commitment’ in Article 17 of the Treaty. As explained above, Article 17 does not prohibit the district court’s consideration of Defendant’s criminal history when sentencing him for the extradited offenses, and we fail to see how Defendant’s extradition resolution changes that analysis.”

“In sum, we reject Defendant’s argument that the doctrine of specialty prohibited the district court from correctly calculating Defendant’s criminal history under the Guidelines and from using that calculation to determine his advisory Guidelines sentencing range. To hold otherwise would ‘permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state.’… The plain language of the Treaty prohibits the United States from punishing Defendant for nonextradited conduct. We hold that the district court’s consideration of Defendant’s [prior] criminal history did not constitute punishment for nonextradited conduct, therefore the treaty was not violated.” [502‑503]

Citation: United States v. Lomeli, 596 F.3d 496 (8th Cir. 2010).

Filed in: 2010 International Law Update, Issue 3

On reviewing U.S. conviction of Colombian drug trafficker, Eleventh Circuit refuses to apply Rule of Specialty in absence of proof that rendition occurred based on 1979 Extradition Treaty between U.S. and Colombia and its specialty clause

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“When the surrendering country receives an extradition request, it may decide to grant extradition only for the offenses covered by the treaty and that is where the rule of specialty comes in. The rule ‘provides the surrendering nation with a means of ensuring compliance with this aspect of the extradition treaty, and reflects a fundamental concern of governments that persons who are surrendered should not be subject to indiscriminate prosecution by the receiving government.’ … Thus, the rule of specialty is treaty‑based.” [Slip op. 18] See United States v. Puentes, 50 F.3d 1567 (11th Cir. 1995).

Because not all informal extradition agreements are pursuant to treaties, they do not become part of the internal law of this country. See U.S. Const. art. VI., cl. 2. Moreover, not all formal treaties give defendants [private] rights which they can enforce in the courts of this country.

“As the Supreme Court recently explained: ‘A treaty is, of course, primarily a compact between independent nations. It ordinarily depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these interests fail, its infraction becomes the subject of international negotiations and reclamations. It is obvious that, with all this, the judicial courts have nothing to do and can give no redress. Only if the treaty contains stipulations which are self‑executing, that is, require no legislation to make them [domestically] operative, will they have the force and effect of a legislative enactment.’” [Slip op. 19‑20]

Citation: United States v. Valencia‑Trujillo, 573 F.3d 1171 (11th Cir. 2009).

Filed in: 2009 International Law Update, Issue 7

In case involving extradition to France, Ninth Circuit finds that Government did not violate immunity agreement of Defendant with federal prosecutor in California by granting immunity for incriminating admissions for any U.S. prosecution while disclosing them to French officials to aid Defendant’s prosecution in France

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“Future government witnesses are on notice that, if they wish to prevent federal prosecutors from sharing incriminating statements with other sovereigns (including, for example, the State governments), they must reduce that expectation to writing. Conversely, prosecutors should not be surprised when such protection is sought by cooperating witnesses, or when, if such protection is refused, witnesses decline the agreement. Because there was no written agreement preventing [foreign] disclosure of the statements here, however, the government did not breach the agreement.” [894]

Citation: McKnight v. Torres, 563 F.3d 890 (9th Cir. 2009).

Filed in: 2009 International Law Update, Issue 6

In case where former Panamanian strongman, General Manuel Noriega, who had been designated as prisoner of war challenged his extradition to France following his release from U.S. Prison on Drug related charges, Eleventh Circuit finds that extradition would not violate Third Geneva Convention, and that Noriega could not invoke Convention as source of rights in habeas proceedings

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The Court does not find it necessary to consider the issue of whether the Geneva Conventions are self‑executing, since a subsequent federal statute supersedes prior inconsistent treaty provisions. The Court therefore holds that Section 5 of the [MCA], which prevents any person from invoking the Geneva Conventions in any habeas corpus or other civil action to which the United States or its agent is a party as a source of rights, supersedes the domestic effect of these Conventions.

Appellant argues that although [MCA]  5 may preclude him from invoking the Third Geneva Convention as a source of individual rights in a judicial proceeding, he nonetheless has the right to enforce the provisions of the Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice. Appellant therefore argues that, instead of sending him to France, Article 118 of the Convention requires the U.S. to repatriate him immediately as a POW to his home state of Panama.

The Circuit Court concludes that Appellant was in fact invoking the Convention as a source of rights in a civil action. The plain language of Section 5 of the [MCA] prevents such a claim and therefore Appellant has failed to state a claim upon which relief can be granted.

The Court further holds that, even if  5 of the [MCA] did not preclude Appellant’s invocation of the Convention, it would not preclude his extradition to France. Article 12 of the Convention provides that “[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.” [1298]

The Court finds that the United States has complied with the terms of Article 12; it also rules that the mere absence of the term “extradition” from Article 12 fails to establish that the Article goes so far as to bar such a proceeding. It notes that the Fourth Geneva Convention’s Article 45, which covers the “transfer” of civilians and parallels Article 12 of the Third Convention, states that the article does not preclude extradition.

Citation: Noriega v. Pastrana, 564 F.3d 1290 (11th Cir., 2009).

Filed in: 2009 International Law Update, Issue 4

Where U.S. authorities sought formal extradition of British Defendant charged with hacking into and erasing many high level U.S. military computers and, in exchange for his surrendering, offered to recommend reduced sentence to U.S. court and repatriation to serve part of sentence in U.K., House of Lords dismisses Defendant’s appeal from extradition order since offers amounted to reasonable plea bargaining rather than threats of dire consequences for failure to accept offers

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Where U.S. authorities sought formal extradition of British Defendant charged with hacking into and erasing many high level U.S. military computers and, in exchange for his surrendering, offered to recommend reduced sentence to U.S. court and repatriation to serve part of sentence in U.K., House of Lords dismisses Defendant’s appeal from extradition order since offers amounted to reasonable plea bargaining rather than threats of dire consequences for failure to accept offers

Gary McKinnon (Defendant) is an unemployed 42 year old British citizen, who had considerable skill with his home computer in London. During the Spring of 2002, he used it to identify network computers of the U.S. Government, to copy the identities of certain administrative accounts and passwords, and to install unauthorised software which made it possible for him to access and change the data on those computers. He then deleted data from 97 computers, many of them high level U.S. military computers. The cost of repairs allegedly amounted to US $700,000.

The U.S. charged that the Defendant’s conduct was intentional and calculated to influence the U.S. Government by intimidation and coercion. When interviewed under caution, the Defendant admitted responsibility but not that he had caused damage.

Before requesting the Defendant’s formal extradition, the U.S. prosecutors informed the Defendant’s legal representatives that, if Defendant went voluntarily to the U.S. without contesting extradition and if he pleaded guilty to two counts of “fraud and related activity in connection with computers,”� the prosecution would recommend to the court [1] that it sentence the Defendant for 3 to 4 years’ imprisonment and, [2] that, after serving 6 to 12 months in the U.S. , the prosecutor would recommend to the Department of Justice that the Defendant serve the rest of his sentence in the United Kingdom, and [3] that the court and the department were likely to accept these recommendations. The Defendant was offered a plea bargain on those terms.

His lawyers also told the Defendant that if he turned down this plan and the U. K extradited him to the U.S. and a jury convicted him on a not guilty plea, he could expect to receive a sentence of at least 8 to 10 years’ imprisonment, possibly more and would serve the whole sentence in the U.S., probably in a high security prison. The Defendant refused the plea bargain offer and extradition proceedings began.

The English judge found that the Defendant’s extradition to the U.S. would square with his rights under the U.K.”�U.S. Extradition Treaty of January 21, 1977 [28 U.S.T.S 227; T.I.A.S. 8468; 1049 U.N.T.S 167 ] as supplemented by Treaty of December 23, 1986 [T.I.A.S. 12050; 1556 U.N.T.S. 369] and sent the case to the Secretary of State who ordered the Defendant’s extradition.

The Defendant appealed on the ground that the wide disparity between the predicted likely outcome if he co operated with the U.S. authorities, and the threatened likely outcome if he did not co operate was disproportionate, subjected him to impermissible pressure to surrender his legal rights and amounted to an abuse of process. The judge ruled against Defendant. On appeal, the Divisional Court of the Queen’s Bench Division dismissed the appeal.

On further resort to the House of Lords, that tribunal addresses the following issue: “Is it an abuse of process of extradition proceedings, such that the proceedings should be stayed, and/or an unjustified interference with the Defendant’s human rights, for the requesting state to engage in plea bargaining, including a threat to the Defendant that, unless he agrees to be extradited, repatriation to the United Kingdom to serve any sentence imposed in the requesting state will not be supported by the prosecuting authority in the requesting state?”� The Lords also dismiss Defendant’s appeal.

The lead opinion explains this result in part as follows. “For this submission and indeed more generally in support of the abuse of process argument, the Appellant relies principally upon the judgment of the Supreme Court of Canada in U.S. v. Cobb [2001] 1 S.C.R. 587 . The USA there had indicted a large number of Defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the court in Pennsylvania and, on sentencing one of them, the trial judge, Judge William Caldwell, had said, at p 593: “�I want you to believe me that, as to those people who don’t come in and co operate and if we get them extradited and they are found guilty, as far as I’m concerned they are going to get the absolute maximum jail sentence that the law permits me to give.”� [¶ 30]

“Turning, with these considerations in mind, to the questions raised by Cobb [2001] 1 S.C.R. 587 and central to the determination of the present appeal, I for my part would unhesitatingly answer all of them in the negative. As the Divisional Court itself pointed out [2007] E.W.H.C. 762 at ¶ 34, the gravity of the offences alleged against the Appellant should not be understated: the equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment.”�

“True, the disparity between the consequences predicted by the U.S. authorities dependent upon whether the Appellant co operated or not was very marked. It seems to me, however, no more appropriate to describe the predicted consequences of non co operation as a “�threat’ than to characterise the predicted consequences of co operation as a “�promise’ (or, indeed, a “�bribe’).”�

“In one sense all discounts for pleas of guilty could be said to subject the defendant to pressure, and the greater the discount the greater the pressure. But the discount would have to be very substantially more generous than anything promised here (as to the way the case would be put and the likely outcome) before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non co operation need to go significantly beyond what could properly be regarded as the Defendant’s just deserts on conviction for that to constitute unlawful pressure.”�

“The differences between this case and Cobb [2001] 1 S.C.R. 587 are striking. In Cobb it was the judge who stated that non co operation would result in “�the absolute maximum jail sentence that the law permits me to give’ (see p. 593) and he, after all, unlike the prosecuting authority, had the power to pass sentence. And in Cobb, the prosecutor, so far from forewarning the Defendant of the differing consequences which could be expected to follow (perfectly properly) from his decision whether or not to co operate, effectively threatened (and here I use the word advisedly) those not co operating with homosexual rape.”�

“The high watermark of the Appellant’s case here consists of Mr Lawson’s recollection that, unless the Appellant consented to extradition (as opposed merely to pleading guilty if extradited), the prosecuting authorities would oppose his repatriation. That, however, even were it to be regarded as an unlawful threat, has now been expressly repudiated by Mr. Wiechering, again in marked contrast to the position in Cobb. In my judgment ,it would only be in a wholly extreme case like Cobb itself that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty (in particular if made by a prosecutor during a regulated process of plea bargaining), as so unconscionable as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused. It is difficult, indeed, to think of anything (other than the threat of unlawful action) which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.”�

“In my judgment this is far from being such a case and accordingly I would dismiss the appeal.”� [¶¶ 38 42]. Other members of the panel concur.

Citation: McKinnon v. Government of the United States of America, [2008] U.K.H.L. 59; [2008] 1 W.L.R. 1739; 2008 WL 2872468 (HL) ( 2008).

Filed in: 2008 International Law Update, Issue8

On request for extradition to United States of English executive allegedly involved in international price fixing conspiracy in carbon industry, House of Lords decides that one count failed to meet test of double criminality and that three others do meet that test but need further investigation into possible prejudice from delay

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On request for extradition to United States of English executive allegedly involved in international price fixing conspiracy in carbon industry, House of Lords decides that one count failed to meet test of double criminality and that three others do meet that test but need further investigation into possible prejudice from delay

The Appellant in the House of Lords is Mr. Ian Norris, a citizen of the United Kingdom. The Government of the United States (Respondent) seeks to extradite him to the U.S. to stand trial in a Pennsylvania federal court. On June 1, 2005, Evans DJ sent the case to the Home Secretary for his decision whether the U.K. should extradite Appellant and, on September 29, 2005, the Secretary ordered that he should. The Queen’s Bench upheld that order, subject to this appeal to the House.

For 29 years, Appellant worked in the carbon division of the Morgan Crucible group of companies; after four years as group CEO, he retired in 2002 on grounds of ill health. The group’s parent company is an English company, based in Windsor. The Morgan group had subsidiaries based in North Carolina and Pennsylvania.

In 1999 the Respondent began to investigate allegations of price fixing in the U.S. carbon industry. In due course, the two American subsidiaries paid substantial fines. The U.S. authorities granted immunity from prosecution to most of Morgan’s directors, officers and employees as part of a plea bargain but not to Appellant. In September 2004, a federal grand jury sitting in Pennsylvania returned the indictment on which it is now sought to extradite Appellant from the U.K.

This indictment contains four counts. The first count alleges that Appellant conspired with certain other European producers of carbon products to enter into a price fixing agreement or cartel in several countries, including the U.S. It alleged that, while the parties made the agreements outside the U.S. (e.g. in Europe, Mexico and Canada), it injured free competition in the U.S. market. The cartel allegedly operated from at least 1989 to 2000. The charge invoked 15 U.S.C. Section 1, familiarly known as the Sherman Act which criminalizes certain antitrust conspiracies.

This is a statutory offence of strict liability. It does not require proof of fraud, deception or dishonesty, and count 1 of the indictment contains no such allegation. Among the extradition papers served on Appellant was an affidavit of Lucy McClain, a prosecutor in the Anti Trust Division of the U.S. Department of Justice. She deposed that the conspirators such as Appellant “[i]n effect … defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy.”� The U.S. indictment itself, however, did not contain this specific allegation.

The charges sheet prepared by the Crown Prosecution Service on behalf of the Respondent, transposed Count 1 of the U.S. indictment into the particulars of English criminal offences. The result was that Appellant allegedly conspired to “defraud buyers of carbon products by dishonestly entering into an agreement to fix, maintain and co ordinate the price for the supply of carbon products in the U.S.”�

Counts 2, 3 and 4 of the U.S. indictment alleged (2) conspiracies to obstruct justice, (3) witness tampering and (4) causing a person to alter, destroy, mutilate or conceal an object with the intent to impair the object’s availability for use in an official proceeding, in violation of federal law. The English charges sheet transposed these U.S. crimes into a conspiracy “to pervert the course of public justice, namely, the process of a federal grand jury’s criminal investigation into price fixing in the carbon products industry.”�

In resisting extradition on count 1, Appellant contends that taking part in a cartel, in the absence of aggravating conduct, was not, at the material time (1989 2000), a criminal offence at common law or under any U.K. statute. Therefore, the conduct of which the U.S. accuses him would not have been criminally punishable in the U.K. If Appellant is right, the U.S. petition would not meet the “dual criminality”� requirement of the Extradition Act 2003.

In a composite opinion, the Judicial Committee of the House of Lords reverses on count 1 and upholds counts 2 4 and remands for further inquiry on the possible prejudicial impact of delay.

The House then laid out its rationale. “By the end of the 19th century, it was settled that between master and servant, principal and agent and the buyer and seller of a business, that covenants in restraint of trade were, in general, void and so unenforceable, unless their restrictions were reasonable in the interests both of the parties themselves and of the public. The House so ruled in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd. [1894] A.C. 535; and that ruling represents the law today.”� [¶ 8].

” …The common law recognised that an agreement in restraint of trade might be unreasonable in the public interest. In such cases, the English courts would hold the agreement to be void and unenforceable. In the absence of aggravating features such as fraud, misrepresentation, violence, intimidation or inducement of a breach of contract, however, such agreements were neither actionable or indictable. The House affirmed the contemporary relevance of common law principles in British Airways Board v. Laker Airways Ltd. [1985] A.C. 58 , 79.”� [¶ 18]

“The Clayton Act creates the civil remedy with treble damages for criminal offences under the Sherman Act; under English choice of law rules, it is purely territorial in its application. Moreover, [in Laker] the predominant purpose of the defendants’ allegedly unlawful actions was defending their own business interests. They had long been providing scheduled airline services on North Atlantic routes. Laker in turn was trying to lure customers away from them by operating its Skytrain policy. Under these circumstances, a now well established principle of English … law would rule out any English cause of action for unlawful conspiracy.”�

“Where the English courts have discerned aggravating elements, however, such as misrepresentation and deception, the English authorities have successfully prosecuted defendants for conspiracy to defraud.”�

“The Respondent submits that Laker is not authority for the proposition that dishonest price fixing is lawful at common law. That is partly true. … Laker is, however, clear authority that an anti competitive price fixing agreement of the kind alleged against BA and BCA would have given Laker no cause of action which it could have pursued in the English court.

“At no time up to the present has any U.K. authority successfully prosecuted anyone, whether an individual or a company, for being party in, or giving effect to, a price fixing agreement without aggravating features.”� [¶¶ 22 23].

The Committee next outlined the history of the English law’s treatment of anti competitive behavior and then continued. “In 1998, Parliament enacted the Competition Act 2000; it repealed the 1976 Act, and introduced a general ban on anti competitive activities derived from Articles 81 and 82 of the EC Treaty. It provides for substantial fines on cartel activity, but has a few exceptions, most of which the European Commission [had] allowed. The Act also grants the Office of Fair Trading (OFT) wide powers of investigation in Sections 25 to 29. … Sections 42 to 44 do create criminal offences, but they all are based on failure to comply with most of the investigation procedures in Sections 25 to 29.”�

“The Enterprise Act of 2002 first introduced the statutory criminalisation of cartels. While the [supporting] paper recommended that the law be changed in this and other respects, it stated in ¶ 6.1 that “�[i]t should be noted that engaging in a cartel currently only constitutes a civil law infringement in the United Kingdom and only undertakings [not individuals] are subject to penalties’. “The [language] of the 2002 Act itself seems inconsistent with the notion that Parliament believed that there was a common law offence of price fixing.”� [¶¶ 37 38]

“The above analysis of the case law, the legislation, and ministerial and other official observations appears to establish, without more, that there has never been a common law offence of price fixing. In addition, the material also serves to demonstrate that it would be wrong in principle for any court now to hold that there is or was, at the time of the events complained of in count 1, such a common law offence.”�

The House then applies the principle of certainty to this case. “In R v. Rimmington [2006] 1 A.C. 459, ¶ 33, Lord Bingham of Cornhill said that there were two “�guiding principles’ relevant in that case, namely [that]: “�no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.”�

“Lord Bingham also points out that those principles are “�entirely consistent with Article 7(1) of the European Convention’. … [H]e discussed a number of decisions of the Strasbourg Court on the topic, which established that, while “�absolute certainty is unattainable, and might entail excessive rigidity’, and “�some degree of vagueness is inevitable’ particularly in common law systems, “�the law making function of the courts must remain within reasonable limits’.”� [¶¶ 52 53]

“Even if it had otherwise been open to the Divisional Court to decide that price fixing could now amount to a common law offence, these principles would have required a contrary conclusion. Considering the matter as at the 1990s, the period covered by count 1, the consistent message which had been conveyed both by Parliament, through legislation enacted between 1948 and 1976, and by the judiciary, through cases decided from 1875 through to 1984, was that price fixing was not of itself capable of constituting a crime. This message was reinforced by ministerial statements, even into this century, and in textbooks. There was no reported case, indeed, it would appear, no unreported case, no textbook, no article which suggested otherwise. Further, the legislation indicated that cartel operating was a matter for regulation, and the cases indicated that it did not even constitute a civil wrong.”�

“In these circumstances, it would appear to involve a contravention of the principles articulated in Rimmington to hold that entering into, or operating, a price fixing agreement constituted, and had during most of the 20th century constituted, a common law offence.”� [¶¶ 55 56].

“For all the reasons given … above, the Committee concludes that mere price fixing (that is, the making and implementation of a price fixing agreement without aggravating features) was not ( at any time relevant to count 1) a criminal offence in the United Kingdom. Appellant’s appeal in relation to this count must accordingly be allowed and the judge’s order quashed.”�

The Committee then takes up the question of whether the traditional requirement of double criminality was met here. “As stated, Appellant’s appeal with regard to count one fails to be allowed on the elementary basis that the conduct of which he is accused “� mere undeclared participation in a cartel “� was not at the material time, in the absence of aggravating features, a criminal offence in this country either at common law or under statute. It was therefore wrong to have characterised his conduct as being party to a conspiracy to defraud although it would have been otherwise had the allegation been, for example, that he and his co conspirators, having entered into a price fixing agreement, agreed in addition to deceive their customers by making false representations to the contrary.”�

“That certainly would have been an aggravating feature. But no such conduct is alleged here. It is true that Ms. McClain has deposed that the conspirators “�[i]n effect … defrauded their customers by requiring that they pay higher prices than they might otherwise have paid had there been no conspiracy.’ But that is no more than to assert an intrinsic unlawfulness and dishonesty merely in taking part in a secret cartel and under English law, until the enactment of Section 188 of the Enterprise Act 2002, that was simply not so.”� [¶¶ 62 63]

“Before turning …to a brief history of English extradition law prior to the Extradition Act 2003 , particularly with regard to the so called Double Criminality rule, it is useful to stand back from the detail and recognise the essential choice that the legislature makes in deciding just what the double criminality principle requires. It is possible to define the crimes for which extradition is to be sought and ordered (extradition crimes) in terms either of conduct or of the elements of the foreign offence. That is the fundamental choice.”�

“The court can be required to make the comparison and to look for the necessary correspondence either between the offence abroad (for which the accused’s extradition is sought) and an offence here, or between the conduct alleged against the accused abroad and an offence here. For convenience these may be called respectively the offence test and the conduct test. … [I]f the offence test is adopted, the requested state will invariably have to examine the legal ingredients of the foreign offence to ensure that there is no mismatch between it and the supposedly corresponding domestic offence. If, however, the conduct test is adopted, it will be necessary to decide, as a subsidiary question, where, within the documents emanating from the requesting state, the description of the relevant conduct is to be found.”� [¶ 65].

“Part 2 of the Extradition Act 2003 is concerned with … with extradition to category 2 territories which include the U.S. A. For the purposes of Part 2 of the Act the term “�extradition offence’ is defined by Section 137, which so far as material provides: “�(1) This section applies in relation to conduct of a person if “� (a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct … (2) the conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied “� (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or [more] … (c) the conduct is so punishable under the law of the category 2 territory …’”�

“It is Appellant’s central contention that, in enacting Section 137, Parliament deliberately eschewed the approach adopted in the 1989 Act and instead chose language mirroring the 1967 Act. The 1967 Act spoke of “�the act or omission constituting the offence’, the 2003 Act of “�an offence constituted by the conduct’. Both Acts, he submits, focus on that part of the conduct which constitutes the foreign offence, not the other parts which are extraneous to it but which may be alleged in documents supporting the extradition request: the court can have regard only to such conduct as would prove the essential ingredients of the foreign offence, nothing more. In short, Appellant contends for the offence test, not the conduct test.”� [¶¶ 75 76].

“The language of Section 137 is, in our opinion, consistent with either [the "offense"� test or the "conduct"�] test. Whether the conduct consists solely of those acts or omissions necessary to establish the foreign offence, or the accused’s conduct as it may have been more widely described in the request, both the foreign offence and the corresponding English offence would still be “�constituted’ by it ….”�

“… [R]eally nothing “�startling’ follows from adopting the wider construction. On the contrary, it accords entirely with the underlying rationale of the double criminality rule: that a person’s liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state. …”�

“The wider construction furthermore avoids the need always to investigate the legal ingredients of the foreign offence, a problem long since identified as complicating and delaying the extradition process. … [T]o require evidence of foreign law beyond the documents now supplied with the requisition could cripple the operation of the extradition proceedings …. Flying witnesses in to engage in abstruse debates about legal issues arising in a legal system with which the judge is unfamiliar is a certain recipe for delay and confusion to no useful purpose, particularly if one contemplates the joys of translation and the entirely different structure of foreign systems of law.”�

“In addition, the wider construction would place the U.K.’s extradition law on the same footing as the law in most of the rest of the common law world. The broad conduct approach “� the examination of all the conduct on which the requesting state relies “� is that almost universally followed.

“The Committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act. [T]he conduct relevant under Part 2 of the Act [is] that described in the documents constituting the request. … [Taking] account of such allegations as are relevant to the description of the corresponding U.K. offence.”�

“Counts 2 to 4 on the indictment allege various forms of obstruction of justice, all relating to the criminal investigation into price fixing in the carbon products industry which was being conducted by the grand jury in the Eastern District of Pennsylvania. [¶¶ 88 92]

On behalf of Appellant, [counsel] contended that, in terms of Section 137(2)(b) of the 2003 Act, these are not extradition offences since the conduct would not have constituted an offence under English law if it had occurred in England. In other words, it would not have been an offence under English law for Appellant to conspire in England to obstruct the criminal investigation into price fixing being carried out by the grand jury in Pennsylvania.”�

“An exercise in transposition has been an essential part of the law since the enactment of section 10 of the Extradition Act 1870 … It is the means by which Parliament gives effect to a policy that, before there can be extradition, there should have been criminality according to both the law of the requesting state and English law.”� [¶ 94].

“If, then, we ignore the adventitious circumstances connected with the conduct alleged against Appellant in counts 2 to 4 of the indictment and concentrate instead on the essence of his alleged acts, the substance of the criminality charged against him is not that he obstructed the criminal investigation into price fixing in the carbon products industry being carried out by the Pennsylvania grand jury, but that he obstructed the criminal investigation into that matter being carried out by the duly appointed [English] body. Making the necessary changes, we would have to translate counts 2 to 4 into counts of obstructing in England a criminal investigation into price fixing in the carbon products industry being conducted by the appropriate investigatory body in this country.”�

“So the mere fact that the result of the investigation in Appellant’s case was a charge of simple price fixing, which does not constitute an offence under English law, is no reason to hold that it would not have been an offence under English law to obstruct the progress of an equivalent investigation by the appropriate body in this country.”�

“Approaching the matter in that way, we are satisfied that, if Appellant had done in England what he is alleged to have done in counts 2 to 4, with the intention of obstructing an investigation being carried out into possible criminal conduct, in regard to fixing prices in the carbon products industry, by the duly appointed body in the United Kingdom, he would indeed have been guilty of offences of conspiring to obstruct justice or of obstructing justice, which could have attracted a sentence of twelve months’ imprisonment. It follows that offences 2 to 4 on the indictment are “�extradition offences’ in terms of Section 137(2)(b) of the 2003 Act.”� [¶ 101]

The Committee then turns to the question whether the lapse of time in this case was prejudicial. “Counts 2 to 4 relate to alleged events between April 1999 and August 2001. On December 31, 2004 the warrant for Appellant’s arrest was issued in England at the request of the U.S. Government and the contested hearing before the district judge took place in May 2005.”�

“Section 82 of the 2003 Act (at the relevant time …) provided: “�A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).”� [¶¶ 102 103].

“The period between the alleged conduct in counts 2 to 4 and the arrest of Appellant is not strikingly long. Indeed, in our view, it is not such as to make it prima facie likely that significant relevant witnesses or documents might no longer be available.”� [¶¶ 106 107].

“… [B]y itself, the relevant period of time in this case does not justify an inference that Appellant would not be able to have a fair trial. … But the counts in the indictment contain an indication of the type of conduct alleged against him, and of the places where, and the dates when, it is said to have taken place. Armed with that information, he must know who were his colleagues and opposite numbers at the relevant time and is in a position to instruct his lawyers and others to look into the matter.”�

Section 87(1) of the 2003 [Extradition] Act requires the extradition judge to decide whether a person’s extradition would be incompatible with his Convention rights scheduled to the Human Rights Act 1998. This calls for a judgment on the proportionality of an order of extradition in all the circumstances, having regard to the defendant’s rights under article 8 and any other relevant article.”�

“In the present case the district judge considered that question and resolved it adversely to Appellant. But he exercised his judgment on a basis different from that which now pertains, namely that Appellant was to be extradited on the main price fixing count, and not merely the subsidiary counts.”�

“In relation to counts 2 4, the House will remit the matter to a district judge to decide the question [of proportionality and the impact of delay raised by Section 87(1) of the Act.] Depending on his answer, he will act in accordance with either subsection (2) or subsection (3) of that section.”� [¶¶ 109 111].

Citation: Norris v. Government of the United States of America, [2008] U.K. H. L. 16; 2008 WL 576924 (HL); [2008] 2 W.L. R. 673 (House of Lords, March 12, 2008).

Filed in: 2008 International Law Update, Issue5

In appeal from hearing on Greece’s request to extradite Petitioner, Ninth Circuit holds that inquiry into intent is appropriate in dual criminality analysis, that identity of person sought by extradition request can be confirmed through witnesses’ identification by photo, and that depositions supporting foreign arrest warrant were not indispensable to support finding of probable cause under U.S. Greece Extradition Treaties

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In appeal from hearing on Greece’s request to extradite Petitioner, Ninth Circuit holds that inquiry into intent is appropriate in dual criminality analysis, that identity of person sought by extradition request can be confirmed through witnesses’ identification by photo, and that depositions supporting foreign arrest warrant were not indispensable to support finding of probable cause under U.S. Greece Extradition Treaties

In October 1999, Greece (Petitioner) requested that the U.S. extradite Crystalla Kyriakidou (Respondent). According to the request, Respondent had entered the U.S. using a false passport under the name of Christina Manta. Petitioner sought to extradite Respondent on (1) deceit of especially great damage, by profession and by habit; (2) deceit which caused an especially important damage, in continuation and by habit; (3) continuing deceit against a bank, with damage of more than 5,000,000 drachmas [about $18,000 USD] and committed by a person who acted by profession and by habit and especially dangerous; and (4) fraud by profession and out of habit of particularly great damage.

A California federal court issued an arrest warrant and, on June 30, 2005, authorities provisionally arrested Manta in the belief that she was Kyriakidou. At the extradition hearing, the magistrate judge (MJ) partially granted the government’s request for extradition. The MJ concluded that the person before the court, Christina Manta, was Crystalla Kyriakidou, the one Greece sought for extradition. The MJ approved extradition on only two charges: (1) ongoing deceit that caused an especially important damage, and (2) professional and habitual fraud of particularly great damage. The applicable agreements as of January 1, 2007 are Treaty of Extradition and Exchange of Notes, 47 Stat. 2185; T.S. 855; 138 L.N.T.S. 293 (in force, Nov. 1, 1932 ; and Protocol Interpreting Article I of 1931 Treaty, 51 Stat. 2185; E.A.S. 114; 185 L.N.T.S. 408 (in force Sept. 2, 1937).

On one charge, the MJ relied on an investigative report from a Greek Public Prosecutor; it stemmed from testimony from Kiskiras and three other witnesses. For the other charge, the MJ relied on sworn testimony before an Athenian Appeal Court where a witness identified “Manta”� as “Kyriakidou.”� Manta unsuccessfully challenged her extradition by petitioning for a writ of habeas corpus in the district court. Manta now appeals.

Manta raises two objections on appeal. They are (1) that the crime did not fall within the terms of the treaty, and (2) that there no probable cause to believe that Petitioner was the one who had committed the crimes charged. The U.S. Court of Appeals for the Ninth Circuit affirms the dismissal of the habeas petition.

Article I of the [Extradition] Treaty between the U.S. and Greece sets forth the usual “�dual criminality’ requirement. Dual criminality exists if the “�essential character’ of the acts criminalized by the laws of each country are the same and the laws are “�substantially analogous.’ [Cite.] The elements of the crime allegedly committed in a requesting nation need not be identical to the elements of the substantially analogous crime in the requested nation.

The Court of Appeals agrees with the District Court that the essential character of the two crimes on which the MJ based the extradition order corresponds to the U.S. crime of obtaining money by false pretenses. It also agrees that criminal intent is relevant but that it may be inferred from Petitioner’s conduct.

At an extradition hearing, the MJ must determine whether the party before the MJ is identical to the party named in the extradition request. The Ninth Circuit upholds the MJ’s finding where there is any competent evidence in the record to support it.

“The magistrate judge relied on a complaint that Ms. Loui submitted to the Public Prosecutor of Athens Misdemeanor Court, in which Loui alleged that the person who defrauded her in Greece presented herself as Christina Manta using a 1994 passport No. I.837326; that Manta left Greece to live in San Diego, and that Loui later learned that Manta’s real name was “�Cristallo Kiriakidou.’ In her affidavit, Loui stated that she examined passport No. N464835, which was issued to “�Christina Manta’ in 1999, and testified that she recognized the person in the picture as the person who deceived her.”� [Slip op. 7 8].

The Court concludes that the lower court had not erred in determining Manta was the person sought by the extradition request. “An identification based on a single photograph may be competent evidence of identity in an extradition proceeding. … A magistrate judge may [also] consider the circumstances of an identification when assessing its reliability. The magistrate judge properly did so here when she credited Loui’s identification, in part, because Loui had multiple interactions with Kyriakidou.”� [Slip op. 10]

The Court may uphold the MJ’s probable cause determination if there is any competent evidence in the record to support it. Competent evidence did exist, and as the usual rules of evidence do not apply in extradition hearings (unless the relevant treaty provides otherwise), the only requirement for evidence is authenticity. According to Manta, Article XI of the Extradition Treaty does require more than mere authentication. Article XI provides, in relevant part, that: “If [a] fugitive is merely charged with a crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and of the depositions upon which such warrant may have been issued, shall be produced, with such other evidence or proof as may be deemed competent in the case.”�

The Court concludes that the plain language of the Extradition Treaty refutes Manta’s argument that witness statements used at her extradition hearing were not competent evidence because they are unsworn. Article XI, however, is clear that depositions “shall be produced, with such other evidence or proof as may be deemed competent in the case.”�

Manta also argued that the MJ’s probable cause determination was not admissibly supported because the requesting state failed to produce depositions supporting the Greek arrest warrant. The Court rejects this argument as well, albeit on different grounds. “The plain language of the Treaty is clear that depositions are not required in every case. The Treaty requires the submission of depositions only when a warrant “�may have been issued’ upon those depositions.”� [Slip op. 11 12]

Finally, the Court rejects Manta’s argument that the Fourth Amendment requires that every piece of evidence relied on in an extradition proceeding be sworn. Such a requirement would run contrary to the well established case law that evidence offered for extradition purposes need not be made under oath.

Citation: Manta v. Chertoff, 2008 WL 638404 (9th Cir. March 11, 2008).

Filed in: 2008 International Law Update, Issue 3

West Virginia district court denies request from Ireland for the extradition of a U.S. citizen accused of assisting in suicide; dual criminality requirement of the U.S.–Ireland extradition treaty was not met; although the court recognizes that dual criminality could potentially be satisfied by the existence of substantially comparable laws in a “preponderance” of the states, there was no consensus in the laws of the U.S. states as to assisted suicide

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West Virginia district court denies request from Ireland for the extradition of a U.S. citizen accused of assisting in suicide; dual criminality requirement of the U.S.–Ireland extradition treaty was not met; although the court recognizes that dual criminality could potentially be satisfied by the existence of substantially comparable laws in a “preponderance” of the states, there was no consensus in the laws of the U.S. states as to assisted suicide

The following district court case concerns Ireland’s request for the extradition of a the Reverend George Exoo of the “Compassionate Chaplaincy Foundation,” an organization that assists people who wish to commit suicide. Such has been termed “suicide tourism” by critics. More information about the background of this matter is available at www.compassionate chaplaincy.com.

The United States initiated an action for the extradition of American citizen George Exoo to Ireland. The Dublin Metropolitan District Court issued a Warrant to Arrest Exoo on May 21, 2004, based upon information provided by a police detective that Exoo (1) aided and abetted and (2) counseled the suicide of an Irish woman, Ms. Toole, in violation of Irish law. That law provides that “a person who aids, abets, counsels or procures the suicide of another . . . shall be guilty of an offense and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” Section 2(2) of Ireland’s Criminal Law (Suicide) Act, 1993.

Exoo was affiliated with an organization known as the Compassionate Chaplaincy Foundation which provided assistance to dying people. Exoo, in his position as a minister, provided instruction and spiritual support for people seeking to end their own lives. In 2002, Exoo traveled to Ireland after some correspondence with Ms. Toole, a woman suffering health problems who had attempted and failed at suicide once before. Ms. Toole paid for Exoo’s traveling expenses. On January 25, he was with Ms. Toole when she took unspecific pills and out on a mask that supplied her with helium, not oxygen. She soon asphyxiated, and Exoo left the country without notifying authorities of her death. In 2007, a warrant was issued in the U.S. and Exoo was arrested. The court subsequently held a hearing to determine where extradition of Exoo to Ireland was permissible.

Under the 1983 extradition treaty between the United States and Ireland, “An offense shall be an extraditable offense only if it is punishable under the law of both Contracting Parties by imprisonment for a period of more than one year, or by a more severe penalty Extradition shall also be granted for attempt and conspiracy to commit, aiding, abetting, counseling, procuring, inciting, or otherwise being an accessory to the commission of [such an offense that is punishable under the law of both states].” The treaty further stipulated that it “adopts the modern practice of permitting extradition for any crime punishable under the laws of both contracting Parties for a minimum period,” and that the doctrine of dual criminality should be interpreted liberally under it.

To extradite Exoo, the Court would have to determine, among other things, whether “in consideration of the offenses with which he is charged in Ireland, [Exoo] is extraditable under the ‘dual criminality’ provision contained in Article II of the Treaty. Under this provision, the Court must determine whether the offenses with which [Exoo] is charged in Ireland are also punishable under the law of the United States by imprisonment for a period of more than one year or by a more severe penalty.” [pg. 5]

“To determine whether dual criminality exists as between the law of Ireland and the law of the United States, the Court must look to federal law first. If there is no corresponding federal law, then the Court must look to the law of the State where [Exoo] is found. If there is no corresponding law in the State where [Exoo] is found, then the Court must look to the law of the preponderance or majority of States.” [pg. 5–6] These laws need not be identical between states, merely similar. In Exoo’s case, the proper inquiry was first into Federal and West Virginia law, neither of which possessed laws that would satisfy the duality requirement. However, the United States in its memorandum maintained that a preponderance of the States criminalize assisted suicide, and alleged that 39 have statutes forbidding such acts and 29 of those attach aiding and abetting liability to providing assistance in any form to the suicide of another.

In June 2007, the Court held an Extradition Hearing. “Essentially, the question presented was whether the [Extradition Treaty between the US and Ireland] permitted dual criminality to be assessed in consideration of the law of a preponderance of the States and, if so, [did] it appeared probable that dual criminality does not exist as between the law of Ireland and the law of a preponderance of the States [L]egal research indicated that several Courts have stated that, absent duality as between the law of the requesting State and federal law and the State where the relator is found, the Treaty language would permit an assessment of dual criminality in view of the law of a preponderance of the States.” [pg. 8]

At the hearing, both sides presented evidence on the differing assisted suicide laws of various states and the status of assisted suicide at common law where no statute existed. While the Government maintained that a majority of states had statutes criminalizing assisted suicide and also recognized aider and abettor liability for such acts, Exoo argued that not only had the Government failed to show a majority trend among the various states, even if it had, majority alone was not enough. Instead, the requisite for a finding of duality under a “preponderance” of state laws was “consensus” among them.

At the hearing, the court emphasized that extradition treaties were to be interpreted liberally, and this applied as well when determining if dual criminality exists when there is no comparable federal or State of asylum enactment. In order to make such a determination, it stated, the court must compare the laws of the country requesting extradition and the fifty States to determine if the conduct charged in the requesting country is punishable in a preponderance of the States. [pg. 17]

In the court’s determination of the meaning of applicable laws, it noted that, in general, the law of the United States and Ireland are conceptually consistent in defining aiding and abetting. In then turned to a comparison of the assisted suicide laws of Ireland and the 50 states, in order to determine “the extent to which the States’ laws are ‘substantially analogous’, ‘relate to the same general offense’ or involve conduct which is criminal in both countries.” [pg. 21]

After conducting this comparison, the court found there was no dual criminality under the “preponderance of the states” standard, and extradition was not permissible. The State Court decisions analyzed by the court in making its comparison indicated that the strong majority of the States’ statutes would not be “substantially analogous” for duality purposes. “Utilizing as broad a notion as possible of what legally constitutes ‘aiding’ and ‘causing’ in order to conform to the liberality requirements of the Treaty and the law, the Court [found] that the laws of the 25 States set forth in the first category incorporate both aiding and causing suicide and therefore included conduct such as Exoo’s indirect, secondary participation in Ms. Toole’s suicide.” [pg. 30]

However, the Court also finds that 25 States did not have laws which were “substantially analogous,” and as such, the Court could not find that aiding and abetting and counseling suicide as charged in Ireland are generally recognized as criminal in the laws of the States, and extradition was denied.

Citation: In the Matter of the Extradition of George David Exoo, 5:07 0059 (S.D.Wv. 11/26/2007).

Filed in: 2007 International Law Update, Issue11

As matter of first impression, Ninth Circuit reviews whether U.S. government must seek extradition of a suspect when it believes that extradition is futile

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As matter of first impression, Ninth Circuit reviews whether U.S. government must seek extradition of a suspect when it believes that extradition is futile

Felipe de Jesus Corona Verbera (“Corona Verbera”) was involved with the Sinaloa Cartel, one of the largest drug trafficking operations in Mexico in the late 1980s. He allegedly designed a sophisticated, 200 foot long tunnel between Agua Prieta, Mexico, and a warehouse in Douglas, Arizona. That the tunnel was used for drug trafficking is evidenced by the 2,037 pounds of cocaine found at the same time. Corona Verbera was first charged in 1990, and there were indictments in 1995 and 2001. He arrested in Mexico in 2003, and extradited to the U.S. Eventually, after many delays, he was convicted in 2006 of various drug related offenses, and now appeals.

The U.S. Court of Appeals for the Ninth Circuit affirms. One of Corona Verbera’s challenges on appeal is that his Sixth Amendment right to a speedy trial was violated because the U.S. government did not timely seek his extradition from Mexico.

The Court agrees that an almost eight year delay between indictment and arrest is presumptively prejudicial. However, the Court does not find a duty upon the government to seek swift extradition.

“Whether or not our government is required formally to seek extradition and execute an arrest warrant when it believes extradition is futile is an issue of first impression in this Circuit. The Second Circuit addressed the issue in United States v. Blanco, 861 F.2d 773, 778 (2d Cir. 1988). In Blanco, the court held that seeking extradition of a defendant from Colombia would have been futile and “[d]ue diligence does not require the government to pursue goals that are futile.” Id. We agree with the Second Circuit and hold that where our government has a good faith belief supported by substantial evidence that seeking extradition from a foreign country would be futile, due diligence does not require our government to do so.” [Slip op. 8]

Here, the government presented testimony by Agent Grant Murray that Mexico did not extradite its citizens on drug charges until the late 1990s. Thus, any attempts to seek Corona Verbera’s extradition would have been futile. Even a defense expert agreed that Mexico did not extradite its citizens between 1980 and 1996. The government did, however, enter him into the National Crime Information Center (NCIC) computer system.

Therefore, the Court concludes that “that the government exercised due diligence in this case. Substantial evidence supports the government’s assertion that extradition from Mexico on drug related charges prior to 2002 was extremely rare. The futility of extradition, combined with the government’s entry of Corona Verbera into NCIC and border stop computers, and the airing of the Most Wanted and Unsolved Mysteries segments, indicate that the government did not simply forget about Corona Verbera. Rather, after extradition became more likely in 2002, the government obtained an arrest warrant and diligently sought extradition. Consequently, the reason for delay weighs against dismissal.” [Slip op. 10]

Finally, the Court rejects Corona Verbera’s argument that his 18 year sentence violates the terms of his extradition. The U.S. Ambassador had assured Mexico that the U.S. would not seek a death sentence or life imprisonment. Corona Verbera argues that, because he is 53 years old, the 18 year sentence is effectively a life sentence. Also, Articles 18 and 22 of the Mexican Constitution prohibit such punishments. Such cruel and extreme punishment violates the U.S.–Mexico Extradition Treaty.

The Court disagrees. “Neither our Ambassador’s letter nor the Treaty itself mention any prohibition against a sentence imposing a precise term of years. Likewise, no mention is made of “unusual or extreme punishment” or any equivalent thereof. See Extradition Treaty Between the United States of America and the United Mexican States, U.S.–Mex., May 4, 1978, 31 U.S.T. 5059. Accordingly, the simple answer to Corona Verbera’s argument is that he was not sentenced to life in prison. He was sentenced to eighteen years in prison, with credit for more than four years served. Moreover, his projected release date is at the age of sixty four.” [Slip op. 18]

Citation: United States v. Corona Verbera, No. 06 10538 (9th Cir. December 7, 2007).

Filed in: 2007 International Law Update, Issue11

On appeal from judgments of extradition and surrender by Canada to United States by one of three individuals charged with operating fraudulent cross border telemarketing scheme to United States citizens, Ontario Court of Appeal dismisses appeal on grounds that lower court did not err in declining to allow calling of witness not shown to have relevant and reliable testimony that one petitioner may not have known that telemarketing was fraudulent

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On appeal from judgments of extradition and surrender by Canada to United States by one of three individuals charged with operating fraudulent cross border telemarketing scheme to United States citizens, Ontario Court of Appeal dismisses appeal on grounds that lower court did not err in declining to allow calling of witness not shown to have relevant and reliable testimony that one petitioner may not have known that telemarketing was fraudulent

In this extradition matter, the United States alleged that Leslie Anderson, Lloyd Prudenza and David Dalglish ran a fraudulent telemarketing scheme in Toronto between September 2001 and the end of December 2002. They hired telemarketers who got in touch with people in the United States with poor credit records. They told these people that First Capital, the company represented by the telemarketers, could obtain pre approved credit cards for them in exchange for an advance fee. The amount of the fee varied, but was usually around $200 U.S. First Capital could not, and did not, supply any pre approved credit cards. Over an eighteen months period, the scheme bilked U.S. Consumers out of about $7,000,000.

The Record of the Case certified by the United States included a sworn videotaped statement furnished in Canada to Canadian and American authorities by one Mark Lennox on April 1, 2004. The American authorities had started out by seeking the extradition of Lennox. On the advice of counsel, however, he co operated with the authorities in the hope that Canada, and not the United States, would prosecute him; he hoped that he would receive a lenient sentence in exchange for his co operation. In addition to turning over the sworn videotaped statement, Lennox gave grand jury testimony in Illinois in May 2004.

Lennox had quite a bit of prior experience in the telemarketing business and had worked with Dalglish in the past. Anderson and Dalglish hired him as the office manager of First Capital. Lennox also knew Prudenza. He had previously taken part in the telemarketing business and also had a mail fraud conviction. Apparently, Anderson had no prior involvement in the telemarketing business.

Lennox testified that the telemarketing operation was “a complete and total scam”. He admitted having an integral role in that fraud. He also outlined the respective roles played by Anderson, Prudenza and Dalglish in the First Capital operation. These reasons are not concerned with the roles played by Prudenza and Dalglish. I need not review that evidence. This trio admitted at the extradition hearing that the evidence provided by the United States justified their extradition.

The Court then focuses on Lennox’s account of the role played by Anderson. Lennox first met Dalglish and Anderson in early September 2001. They told him that they were about to set up a telemarketing operation with Lennox managing its day to day affairs. Anderson was to be the “money man” who would finance the scheme. At this first meeting, Dalglish assured the others that each successful sale would produce a net profit of about $150 U.S.

When Lennox decided to come on board, Anderson gave him a $2,000 signing bonus.. Lennox clearly saw that Anderson was bankrolling the start up costs of the business, characterizing Anderson and Dalglish as “co owners of First Capital”. Anderson would be signing the payroll checks. He also signed the leases on various premises used by the telemarketers. In August 2002, when First Capital had serious cash flow problems, Anderson came up with additional financing. According to Lennox, without this additional funding, the operation would have ground to a halt.

Before the grand jury, Lennox’s testimony made clear that Anderson was told that Capital One had no power to issue pre approved credit cards. When speaking to potential customers, Dalglish and Prudenza required the telemarketers to use “scripts” that the two of them had put together. In his sworn statement, Lennox said that Anderson saw the ‘script’ before the telemarketers used it. In his statement, Lennox said that Anderson was a party to discussions among Prudenza, Lennox and Dalglish that, to increase customer confidence, First Capital must appear to the U.S. customers to be operating out of the United States and not from Canada. Counsel for Anderson subpoenaed Lennox to testify at the extradition hearing. At that time, Lennox, a Canadian citizen, was living in Windsor, Ontario in a psychiatric/detoxification facility.

Anderson’s counsel contended that Lennox’s live testimony coupled with the Record of the Case could lead the judge to conclude that Anderson’s committal for extradition was not warranted under Section 29(1)(a) of the Extradition Act, S.C. 1999, c. 18. The extradition judge, however, refused to allow Lennox to testify.

Counsel for the United States conceded that Lennox was compellable. He also agreed that Lennox’s evidence would meet the reliability requirement in Section 32(1)(c) of the Extradition Act. Counsel submitted, however, that counsel must make a detailed offer of proof to show that testimony from Lennox would be relevant without raising immaterial issues of reliability and credibility.

Anderson stressed that he was not challenging Lennox’s credibility or reliability. He needed to call Lennox, however, to “clarify” some of the answers he had given in his statement and in his grand jury testimony to rebut inferences that Anderson had actually known about the fraudulent nature of the operation. If successful, there would be no basis to commit Anderson for extradition.

In precluding counsel from calling Lennox, the extradition judge ruled that the proposed testimony was in reality aimed at attacking the credibility and reliability of his evidence. This would flout the criteria for admission set out in Section 32(1)(c) of the Extradition Act. Anderson took an appeal but the Ontario Court of Appeal dismisses it.

“Section 29(1)(a) requires some evidence of the existence of each element of the Canadian offence that parallels the offence on which extradition is sought. That evidence must be such as would permit a reasonable jury, properly instructed, to convict on the parallel Canadian offence: see United States v. Ferras, [2006] 2 S.C.R. 77 (S.C.C.), if that evidentiary threshold was crossed, the evidence proffered by the requesting state justified committal.”

“A qualitative assessment of the evidence relied on by the requesting state was beyond the scope of the Section 29(1)(a) inquiry. The extradition judge could not weigh the evidence either by testing the credibility of the sources of that evidence or by examining the reliability of the evidence put forward by the requesting state. [Cites]. Consequently, evidence that could potentially affect the quality of the evidence proffered by the requesting state was irrelevant at the extradition hearing. For example, on the law as it stood prior to United States v. Ferras, evidence that Lennox had a motive to falsely inculpate Anderson would have been irrelevant to whether his evidence justified committal for extradition.”

“United States v. Ferras, supra, turned a new jurisprudential page in the [Canadian] law of extradition. The Supreme Court unanimously concluded, at paras. 39 40, that the principles of fundamental justice enshrined in Section 7 of the Charter, considered in the context of an extradition proceeding, required a judicial assessment of the evidence beyond a simple consideration of whether there was some evidence, regardless of its quality, to support the existence of each element of the parallel criminal offence. Chief Justice McLachlin explained that since extradition proceedings could result in the removal of the person sought for extradition from Canada, an obviously significant interference with that person’s liberty and security, the principles of fundamental justice required some qualitative assessment of the evidence relied on to support the extradition request.”

“The nature of that qualitative assessment of the evidence is described in several places in United States v. Ferras, supra, at paras. 46, 50, 54. For example, at para. 54, McLachlin C. J. C. observes: ‘Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced, or such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal.”

“United States v. Ferras, supra, contemplates a limited qualitative evaluation of the evidence proffered by the requesting state. … United States v. Ferras, supra, does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable. Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.”

“United States v. Ferras, supra, does permit an extradition judge to remove evidence from judicial consideration if the extradition judge is satisfied that the evidence is ‘so defective’ or ‘appears so unreliable’ that it should be disregarded and given no weight for the purposes of deciding whether the test for committal has been met under Section 29(1)(a) of the Extradition Act. The Chief Justice put it this way, at para. 59: ‘Simply put, the extradition judge has the discretion to give no weight to unavailable or unreliable evidence when determining whether committal is justified under Section 29(1).”

“Evidence may be rendered ‘so defective’ or ‘so unreliable’ as to warrant disregarding it due to problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors. I would stress, however, that it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the Section 29(1)(a) inquiry.”

“In deciding whether defects in the case proffered by the requesting state are sufficiently serious to justify disregarding some part of the evidence relied on by the requesting state when conducting the Section 29(1)(a) assessment, an extradition judge must begin from the premise that the material properly certified by the requesting state pursuant to Section 33 is presumptively reliable for the purposes of the Extradition Act, including the Section 29(1)(a) assessment: see United States v. Ferras, supra, at paras. 52 56. The party resisting extradition may rebut the presumption of reliability flowing from certification either by reference to the requesting party’s own material or by calling evidence to demonstrate fundamental inadequacies or frailties in the material relied on by the requesting state: see United States v. Ferras, at paras. 66 67.”

“In this case, there were features of Lennox’s evidence that could call his credibility and the reliability of his evidence into question were this a criminal proceeding in Canada. Lennox was a co conspirator who was seeking a benefit through co operation with the authorities. There were some inconsistencies between his sworn statement and his grand jury testimony. At the extradition hearing, counsel did not argue that those features could justify refusing to commit Anderson for extradition.”

“On appeal, post United States v. Ferras, supra, counsel still does not argue that the frailties apparent in Lennox’s evidence from the material filed by the requesting state would justify a refusal to give Lennox’s evidence any weight for the purposes of the Section 29(1)(a) assessment. I think counsel is correct in not advancing that argument. As is evident from the facts in United States v. Ferras, where much of the evidence came from a co conspirator, the mere fact that evidence relied on by the requesting state has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition.”

“Having regard to the entirety of Lennox’s sworn statement and his grand jury testimony, there is nothing in that material or his status as a co conspirator seeking a favorable bargain with the prosecuting authorities that could justify characterizing his statement and evidence as ‘so defective’ or ‘so unreliable’ as to warrant the exclusion of the statement and testimony from consideration when determining the issue of committal for extradition.”

“Although counsel for Anderson does not argue that the problems apparent in Lennox’s evidence from the material filed by the requesting state could justify the extradition judge disregarding that evidence, he does argue that those frailties opened the door to evidence called on behalf of Anderson that could reveal difficulties inherent in Lennox’s evidence that were sufficiently serious to warrant refusing to commit for extradition based on Lennox’s statement and grand jury testimony.”

“After United States v. Ferras, supra, the subject of an extradition request may lead evidence to demonstrate that evidence relied on by the requesting state is manifestly unreliable and should be excluded from consideration by the extradition judge: see United States v. Ferras, at para. 70. Counsel for the United States submits, however, that before counsel for Anderson could call Lennox, he had to outline the nature of the evidence he anticipated obtaining from Lennox and demonstrate that the anticipated evidence could potentially affect the decision of the extradition judge on the issue of committal. Counsel for the United States contends that Lennox’s evidence could be relevant to the question of committal only if it was capable of convincing the extradition judge that Lennox’s evidence was so unreliable that it should be disregarded for the purposes of deciding whether Anderson should be committed for extradition.”

“I think it is beyond question that had Lennox been required to testify, counsel for Anderson may well have elicited testimony that adversely affected Lennox’s credibility or the reliability of his sworn statement and grand jury testimony. I can even accept that it is possible that the questioning of Lennox could have led the extradition judge to conclude that Lennox’s sworn statement and grand jury testimony were totally unreliable and should not be considered in determining the question of extradition.”

“The essential question on this appeal is whether that possibility is enough, without requiring counsel for Anderson to make some offer of proof demonstrating the ultimate relevance of the proposed evidence, before being allowed to call Lennox on the extradition proceedings.”

“In any litigation where the admissibility of evidence is challenged, the presiding judge may require counsel to outline the nature of the anticipated evidence and demonstrate its admissibility based on that outline. [Cites]. Where the admissibility of the proffered evidence turns on its relevance, the presiding judge may determine relevance based on counsel’s outline of the anticipated evidence or the judge may hear the evidence and then rule on its relevance. Policy considerations will determine which of those two courses should be followed.” [¶¶ 26 37].

“… Extradition proceedings are intended to be expeditious and to facilitate prompt compliance with Canada’s international obligations: see United States v. Dynar, [1997] 2 S.C.R. 462 (S.C.C.) at para. 122. The extradition hearing is neither a trial, nor even a precursor to a Canadian trial. The guilt or innocence of the person whose extradition is sought is irrelevant in the extradition proceeding. That proceeding has but one purpose to ensure that the person is not extradited from Canada unless the requesting state has justified extradition as required by Section 29(1)(a).”

“The expansion of the judicial role in extradition proceedings effected by United States v. Ferras, supra, creates a tension between the limited right to challenge the credibility and reliability of the evidence tendered by the requesting state and the need to maintain the essential nature and narrow focus of the extradition hearing. If anyone who could potentially give evidence that could significantly undermine the reliability or credibility of the evidence relied on by the requesting state could be compelled to testify at the extradition hearing, I do not see how the extradition judge could prevent the proceeding from becoming a wide ranging discovery like process for the party whose extradition was being sought.”

“The extradition judge must be satisfied that the proffered evidence could, when considered in combination with the rest of the record, lead him or her to conclude that evidence offered by the requesting state that is essential to the committal for extradition is so manifestly unreliable or defective that it should be disregarded for the purposes of determining whether the requesting state has met its evidentiary burden under Section 29(1)(a).” [ ¶¶ 42 43]

“Counsel for Anderson candidly acknowledged that he could not offer any outline of the proposed evidence of Lennox that would render the proposed evidence relevant to the question of committal. He frankly acknowledged that he had no idea whether Lennox would give evidence that would turn out to be relevant to the question of committal. Nor, in the light of United States v. Ferras, supra, has counsel attempted to put anything before this court which would demonstrate the relevance of any evidence Lennox might give to the issue of committal. The extradition judge correctly held that Lennox could not be called as a witness by Anderson in the extradition proceedings.”

I would dismiss the appeal from the committal order and the application for judicial review of the Minister’s surrender order” [ ¶¶ 47 48] The other two members of the panel agree.

Citation: United States v. Anderson, 2007 CarswellOnt 638, 85 O. R. (3d) 380 (Ont. Ct. App. 2007).

Filed in: 2007 International Law Update, Issue10