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Fourth Circuit holds that Foreign Affairs Reform and Restructuring Act (FARR) deprives federal court of jurisdiction to decline extradition on allegations of future possible violations of U.N. Convention against Torture
In his home country of Romania, a court convicted Petru Mironescu (Petitioner) in absentia of automotive crimes. Authorities later arrested him in the U.S. A magistrate judge certified his extraditability to the U.S. Secretary of State. Mironescu petitioned for a writ of habeas corpus, claiming that the U.S. should not extradite him because Romanian authorities might subject him to torture.
The district court denied the Government’s motion to dismiss Petitioner’s habeas corpus proceeding, and enjoined the Government from extraditing him to Romania. The Government appealed. The U.S. Court of Appeals for the Fourth Circuit reverses and remands for dismissal because the district court lacked jurisdiction to consider the merits of Petitioner’s case.
The specific issue is whether Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) [ adopted Dec. 10, 1984, 23 I. L. M. 1027, 1028, 1465 U.N. T. S. 85, 114], and by Section 2242 of the FARR Act of 1998, see Pub. L. No. 105 277, div. G, 112 Stat. 2681 822 (codified at 8 U.S.C. Section 1231 note)] constrains the Government’s discretion in extradition matters by barring the return or extradition of a person to a country where he or she might be subject to torture. Under the pertinent regulations, the U.S. State Department applies a “more likely than not” burden on the Petitioner.
At the outset, the Court describes the extradition process. In general, there is no obligation for one nation to surrender fugitive criminal suspects to another in the absence of a bilateral treaty to that effect. “The process begins with the submission by a foreign government of an extradition request to the U.S. Department of State. See Restatement (Third) of Foreign Relations Law Section 478 cmt. a (1987).”
The State Department then determines whether a treaty governs the request. “If it does, the matter is referred to the Justice Department for screening. … Assuming that the Justice Department deems the request to be valid, it is referred to the United States Attorney for the district in which the fugitive is believed to be located. …”
“At that point, the U.S. Attorney files a complaint in the district court, seeking (a) certification of the fugitive’s extraditability and (b) a warrant for his arrest. See 18 U.S. C. A. Section 3184 … Once the fugitive is in custody, a … judge … conducts a hearing to determine whether (1) there is probable cause to believe that the fugitive has violated one or more of the criminal laws of the country requesting extradition; (2) the alleged conduct would have been a violation of American criminal law, if committed here; and (3) the requested individual is the one sought by the foreign nation for trial on the charge at issue.”
“Provided that these requirements are satisfied and that the applicable treaty provides no other basis for denying extradition, the judge certifies to the Secretary of State (the Secretary) that the fugitive is extraditable. See Section 3184. Although a judge’s certification of extraditability is not appealable, a fugitive may obtain limited collateral review of the certification in the form of a petition for a writ of habeas corpus. … In considering such a habeas petition, the district court generally determines only whether the judge had jurisdiction, whether the charged offense is within the scope of the applicable treaty, and whether there was any evidence supporting the probable cause finding. …”
“Following certification by the district court, the Secretary must decide whether to extradite the fugitive. See Section 3186 … (‘The Secretary of State may order the person . . . to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged.’). In deciding whether to extradite, the Secretary may consider ‘factors affecting both the individual defendant as well as foreign relations factors that may be beyond the scope of the … judge’s review.’ …”
“The broad range of options available to the Secretary includes (but is not limited to) reviewing de novo the judge’s findings of fact and conclusions of law, refusing extradition on a number of discretionary grounds, including humanitarian and foreign policy considerations, granting extradition with conditions, and using diplomacy to obtain fair treatment for the fugitive. …” [Slip op. 2 3]
The Court then turns to the Government’s argument that the Petitioner here may not raise CAT or FARR Act considerations in habeas proceedings. The scope of habeas review in extradition cases is limited. Under the “rule of non inquiry,” the courts of the requested nation do not evaluate the penal system of the requesting nation as Petitioner asks it to do.
” … [T]he Government maintains that, regardless of the fact that the Secretary’s extradition of Petitioner would violate federal law if extradition will likely result in Petitioner’s torture, the rule of non inquiry should preclude habeas review here because courts are ill equipped to ‘second guess[ ] the expert opinion of the State Department’ regarding whether torture is likely to occur in Romania. …”
“We do not agree. It is important to emphasize that a habeas court reviewing CAT or FARR Act claims would not be called upon to consider whether extradition would further our foreign policy interests or, if so, how much to weigh those interests. Rather, it would be required to answer only the straightforward question of whether a fugitive would likely face torture in the requesting country.”
“American courts routinely answer similar questions, including in asylum proceedings and in applying the political offense exception, under which the political nature of, and motivation for, a crime may negate extraditability. … We have no reason to doubt that district courts could adequately perform this function in this context as well.” [Slip op. 11]
The district court, however, should have granted the Government’s motion below because Section 2242(d) of the FARR Act bars consideration of Mironescu’s petition. Section 2242(d) provides that “… nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, …, except as part of the review of a final order of removal pursuant to … the Immigration and Nationality Act …” Thus, Section 2242(d) deprives the district court of jurisdiction to consider Petitioner’s claims.
Citation: Mironescu v. Costner, 2007 WL 852356 (4th Cir. 2007).
Filed in: 2007 International Law Update, Issue3
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In murder case, Ninth Circuit overturns California courts’ fifteen years to life sentence on extraditee from Venezuela where its extradition decree was conditioned on sentencing for term other than for life
In 1998, Venezuela extradited Cristobal Rodriguez Benitez (Petitioner), a Mexican citizen, to the U. S., where a California court convicted him of murder. Benitez allegedly shot and killed a man who got into a fracas with Defendant’s brother in San Diego, California. The Supreme Court of Venezuela and the Venezuelan Ministry of Foreign Affairs provided in the extradition decree for a sentence limitation to 30 years.
The U.S. Venezuelan extradition treaty provides that: “[T]he Contracting Parties reserve the right to decline to grant extradition for crimes punishable by death and life imprisonment. Nevertheless, the Executive Authority of each of the Contracting Parties shall have the power to grant extradition for such crimes upon receipt of satisfactory assurances that in case of conviction the death penalty or imprisonment for life will not be inflicted.” Treaty of Extradition, January 19 21, 1922; U.S. Venezuela, Article IV, 43 Stat. 1698, T.S. No. 675; 49 U.N.T.S. 435 (in force April 14, 1923).
The California State Court rejected Petitioner’s claim that it should recognize Venezuela’s condition on his receiving less than a life term; it sentenced him to serve an indeterminate term of fifteen years to life. Petitioner filed for a writ of habeas corpus in state court. In it, he claimed that his sentence could not exceed thirty years based on the Venezuelan extradition decree.
The state courts denied his habeas petitions as not yet ripe because Defendant might not have to serve more than 30 years. Petitioner then sought the same remedy in federal court. The court found the matter ripe, but held that Petitioner failed to show that his sentence violated clearly established federal law.
The Ninth Circuit, in a per curiam opinion, reverses. It rules that federal courts have to respect reasonable conditions on extradition if they are within that country’s rights under the extradition treaty. Thus, the district court’s decision not to enforce the limitation in this case was objectively unreasonable.
“The clearly established federal law controlling this case comes from United States v. Rauscher, 119 U.S. 407 (1886), and Johnson v. Browne, 205 U.S. 309 (1907), which set forth the principles of interpretation and international comity relevant to enforcing extradition treaties and the terms of specific extraditions. … Rauscher and Browne are also clear that these expectations and rights are interpreted expansively in the unique context of foreign extradition relationships, which depend upon trust and mutual respect.”
“In Rauscher, the Supreme Court implied into the United States Great Britain extradition treaty a term restricting [the] prosecution of extradited defendants to those charges for which extradition was secured. The Court found that by enumerating only certain crimes as extraditable, the treaty implicitly incorporated the ‘public law’ principle that an extraditing country has the right to decide the grounds of extradition, which bind the receiving country. …”
“Although no express treaty language limited the receiving country’s jurisdiction to prosecute extradited defendants, that absence was ‘met by the manifest scope and object of the treaty itself’—no other interpretation of ‘solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.’ …”
“This interpretive framework was subsequently upheld and applied in Browne, which reaffirmed that ‘it is still most important that a treaty of this nature between sovereignties should be construed in accordance with the highest good faith.’ …”
“Additionally, Rauscher and Browne demonstrate that enforcement of an extradition treaty also entails giving effect to ‘the processes by which it is to be carried into effect.’ Rauscher, 119 U.S. at 420 21. Most importantly, this means that language in a foreign nation’s extradition order invoking provisions of an extradition treaty must be enforced by federal courts. …” [Slip op. 4].
The state courts failed to give effect to the Venezuelan extradition decree, an unreasonable interpretation of Rauscher and Brown. The Ninth Circuit, however, does not wish to enforce extradition conditions that are neither expressly agreed in, nor implied by, the relevant extradition treaty. The present treaty does not impose a numerical limitation, it only permits the extraditing nation to limit the extraditee’s sentence to something less than life. On remand, therefore, any revised sentence must preclude Petitioner from serving a life term.
Citation: Benitez v. Garcia, No. 04 56231 (9th Cir. January 22, 2007).
Filed in: 2007 International Law Update, Issue1
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In international extradition matter, Third Circuit affirms denial of habeas corpus petition which argued invalidity of treaty and risk of torture or death and defers to Secretary of State for final decision on extradition order sought by Albanian Government
In response to an Albanian request, the U.S. government filed for the extradition of Krenar Hoxha (Petitioner). Although born in Albania, Petitioner became a naturalized American citizen in 2002. Albania sought his extradition to stand trial for the alleged 1996 murders of three Albanian citizens.
In making its case for extradition, the Albanian government introduced a number of documents and put on testimony that tended to link Petitioner to the crimes. An Albanian court has already tried and convicted Petitioner in absentia. Petitioner has challenged his conviction on Albanian constitutional grounds and the case is on hold awaiting his surrender.
In February of 2005, a federal Magistrate Judge in Pennsylvania ruled that the evidence provided by the Albanian government sufficed to show probable cause. The judge then issued a Certificate of Extraditability and Order of Commitment, placing Petitioner in the custody of the U.S. Marshal to await a final disposition by the Department of State.
Petitioner sought habeas corpus in a Pennsylvania federal court, challenging the legality of his extradition to Albania. The District Court denied habeas relief on the ground that probable cause did exist, and “that the extradition treaty between the United States and Albania was in full force and effect and that Petitioner’s humanitarian claims could be considered only by the secretary of state.” [Slip op. 30].
On appeal, Petitioner raised the following issues: (1) that the Magistrate Judge erroneously withheld testimony of recanting witnesses; (2) that the extradition treaty between Albania and the U.S. is no longer in force; and (3) that he will likely face torture and possible death upon his return to Albania. The U.S. Court of Appeals for the Third Circuit, however, affirms.
The Court first notes that extradition is the principal domain of the Executive Branch. “Extradition is an executive rather than a judicial function. Sidali v. INS, 107 F.3d 191, 194 (3d Cir. 1997). For this reason, a court may conduct only a limited inquiry following a complaint seeking extradition.” [Slip op. 32]. The habeas court examines an extradition request to find probable cause. Upon such a finding it issues an extradition order which it transmits to the Secretary of State for her final decision on whether or not to surrender the Petitioner to the requesting State.
A Petitioner may not file a direct appeal of a court’s extradition order “because the order does not constitute a final decision under 28 U.S.C. Section 1291, but [he] may petition for a writ of habeas corpus. The habeas court may consider only ‘whether the magistrate [judge] had jurisdiction, whether the offense charged is within the treaty and whether there was any evidence warranting a finding of probable cause.’” [Slip op. 33]. First, the court briefly reviews the facts and holds that there are no reasons to disturb the district court’s finding of probable cause.
The Court then analyzes Petitioner’s claim that the extradition treaty between the U.S. and Albania is no longer valid for “a petitioner facing extradition has standing to challenge the validity of the applicable extradition treaty.” [Slip op. 41].
Petitioner argued that the original 1933 extradition treaty between the Kingdom of Albania and the U.S. became invalid in 1944 when the successor government denounced all treaties entered into by the Kingdom of Albania.
“Whether a treaty remains valid following a change in the status of one of the signatories is a political question, and we therefore defer to the views of each nation’s executive branch.” [Slip op. 42]. After reviewing the record and the evidence presented by representatives of Albania and the U.S., that supported the validity of the present treaty, the Third Circuit spurns Petitioner’s challenge.
Lastly, the court determines whether Petitioner’s humanitarian claims warrant habeas relief. “Under the traditional doctrine of ‘non-inquiry,’ such humanitarian considerations are within the purview of the executive branch and generally should not be addressed by the courts in deciding whether a petitioner is extraditable. …The non-inquiry principle serves interests of international comity by relegating to political actors the sensitive foreign policy judgments that are often involved in the question of whether to refuse an extradition request.” [Slip op.45 & 46].
“Petitioner nonetheless argues that his humanitarian arguments are relevant under Section 2422 of the Foreign Affairs Reform and Restructuring Act (FARR), Pub. L. No. 105-277, 112 Stat. 2681-822 (1998) (codified as Note to 8 U.S.C. Section 1231), which implemented Article 3 of the 1984 U. N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [in force for U.S. Nov. 20, 1994] (the ‘Torture Convention’).” [Slip op. 47]
Although the court recognizes the basic principle that the U.S. should not grant extradition requests to countries which may violate the Torture Convention, the Courts have to leave such decisions to the discretion of the Department of State. FARR further provides that “nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [Torture] Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act” [Slip op. 50].
Petitioner also sought judicial review of the Secretary of State’s enforcement of this FARR provision under the Administrative Procedure Act (APA), 5 U.S.C. Sections 701-706 (2000). The present Court rules, however, that it lacks appellate jurisdiction over such enforcement until the Secretary of State has taken final action. Since the Secretary of State has not yet taken any action on Petitioner’s extradition, his claim is not yet ripe.
Citation: Hoxha v. Levi, 2006 WL 2806824 (3d Cir. October 3, 2006).
Filed in: 2006 International Law Update, Issue10
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On appeal from order denying petition for habeas corpus, Ninth Circuit decides that political offense exception under Extradition Treaty does not apply to bombing plot against Vietnamese embassy in Thailand
Van Duc Vo, a naturalized U. S. citizen born in Vietnam (Petitioner), belongs to the Government of Free Vietnam (GFVN). The GFVN seeks to dismantle the Communist dictatorship of the Socialist Republic of Vietnam, which in turn has linked the GFVN to several incidents of terrorism in Vietnam and elsewhere. In October 2001, U. S. authorities arrested Petitioner in California for his part in an attempted bombing at the Vietnamese embassy in Bangkok, Thailand earlier that year.
The U.S. ratified a Treaty Relating to Extradition with Thailand which entered into force in May, 1991. Pursuant to the Treaty, the government of Thailand requested that the U. S. extradite Petitioner. After a hearing, a Magistrate Judge certified Thailand’s request for extradition to the Secretary of State. Petitioner asked the district court for a stay and for a writ of habeas corpus, but the district court denied his petitions. He noted a timely appeal from the district court’s order, contending that the alleged bombing plot constituted a nonextraditable “political offense.”
As is typical of extradition treaties, Article 3 of the U.S.-Thai Treaty provides that neither party shall grant extradition when a the other asks seeks extradition for a political offense. For a crime to qualify for the political offense exception, there must be “the occurrence of an uprising” and the charged offense must be ‘incidental to’ the uprising. See Quinn v. Robinson, 783 F.2d 776, 797 (9th Cir. 1986).
In a May 22 opinion, the U.S. Court of Appeals for the Ninth Circuit rejects Petitioner’s claim that the bombing plot was incidental to a political uprising against the Vietnamese government.
“The political offense exception was designed to protect those engaged in internal or domestic struggles over the form or composition of their own government, including, of course, struggles to displace an occupying power.” Quinn, supra at 807.
First, this Court finds that the degree of violence in Vietnam at the time of Petitioner’s conduct does not reach the level necessary to characterize it as an “uprising.” Second, the Court concludes that Petitioner would not qualify for the political offense exception because his alleged crime did not take place “within the country or territory in which those rising up reside,” as required by Article 3. This geographical limitation ensures that the political offense exception will not end up protecting international terrorism.
The appellate Court also spurns Petitioner’s due process claim. His argument rested mainly on Article 5(2) of the Extradition Treaty, which permits the U. S. to refuse to extradite an individual if it has proceeded against the individual for the offense for which extradition is requested. According to Petitioner, the Magistrate Judge had violated his due process rights by failing to make a finding as to whether the U. S. had “proceeded against” him.
Since an extradition court has no authority to make a discretionary decision, its failure to construe the Treaty in order to aid the Secretary of State in the exercise of her discretion did not deprive Petitioner of due process. “An extradition court exercises very limited authority in the overall process of extradition. Its role is limited to determining an individual’s eligibility to be extradited, which it does by ascertaining whether a crime is extraditable under the relevant treaty and whether probable cause exists to sustain the charge. If those requirements are met, it is required to certify the individual as extraditable to the Secretary of State. After an extradition magistrate certifies that an individual can be extradited, it is the Secretary of State, representing the Executive Branch, who ultimately decides whether to surrender the fugitive to the requesting country.” [1245].
Citation: Vo v. Benov, 447 F.3d 1235 (9th Cir. 2006).
Filed in: 2006 International Law Update, Issue6
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Ninth Circuit reverses district court’s denial of habeas relief holding that extraditing country’s sentence limitations in its extradition decree may not be violated where treaty is recognized federal law and where extraditing country’s intent is clear
Cristobal Rodriguez Benitez (Petitioner), a Mexican citizen, murdered a man in San Diego, California and later fled to Caracas, Venezuela. In 1997, the United States requested his extradition to California, in accordance with a 1922 treaty with Venezuela. See Treaty of Extradition and Additional Article, 43 Stat. 1098, T.S. 675, 12 Beans 1128, 49 L.N.T.S. 435.
The Treaty provides that the Contracting Parties reserve the right to decline to grant extradition for crimes punishable by death or life imprisonment. In granting extradition, however, the Supreme Court of Venezuela further decreed that no American court may impose on Petitioner the death penalty, life imprisonment, or imprisonment for more than thirty years.
Upon his return, a California court tried and convicted Petitioner for murder, imposing an indeterminate sentence of fifteen years to life. Petitioner filed for a writ of habeas corpus, claiming that his sentence violated the extradition decree. The state courts denied Petitioner’s habeas petitions and the federal magistrate judge held that his federal petition was not yet ripe. The district court, however, found his claim to be ripe but it denied his petition, ruling that Petitioner had failed to show that his sentence violated clearly established federal law. Petitioner then took this appeal.
The U. S. Court of Appeals for the Ninth Circuit reverses and remands with directions to issue the Writ. It holds that the rights claimed by Petitioner pursuant to the Treaty are clearly established federal law. The sentence issued by the California Superior Court, however, contravenes these rights.
An extraditing country may expressly condition extradition, often in the form of limitations on punishment and the federal courts must enforce them. In this case, the state court had potentially sentenced the Petitioner to more than thirty years.
The Ninth Circuit reviews the denial of the Writ de novo and uses the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as its standard of review. “ Applying AEDPA, we may only grant the petition for habeas corpus if the state court decision was ‘(1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.’” [Slip op. 3].
The Ninth Circuit preliminarily rejects the magistrate judge’s ruling that the petition was not yet ripe. The Venezuelan extradition decree limited not only the sentence Petitioner could actually serve, but also the sentence in the form entered against Petitioner, despite the possibility of parole before thirty years.
Since the U. S. had duly ratified the present Treaty, it became binding federal law under the Supremacy Clause. Furthermore, the Treaty’s unambiguous language and the surrounding facts indicate that the treaty is clearly established federal law. The Ninth Circuit concludes that “the state court’s application of the extradition treaty was an ‘unreasonable application of clearly established federal law.’” [Slip op. 4] (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)).
In addition to the extradition treaty, the only other potentially applicable sources of federal law are two Supreme Court cases, United States v. Rauscher, 119 U.S. 407 (1886) and Johnson v. Browne, 205 U.S. 309 (1907). Rauscher stands for the proposition that an extradited defendant can “only be tried for one of the offenses described in that [extradition] treaty.” This rule has become known as the doctrine of “speciality.” Petitioner, however, is not attacking the type of U.S. crimes charged, but merely his punishment.
“We hold that we can enforce limitations on punishments following the extradition of a defendant, but we may do so only if the contracting treaty nations agreed to such a limitation in the particular case.” [Slip op. 5]. Here, enough evidence exists to find that Venezuela had conditioned the extradition by limiting the punishment Petitioner could receive.
Moreover, a federal court may disregard a state court’s findings of fact under 28 U. S. C. 2254(e)(1) if it determines “that the presumption of correctness in their favor is ‘rebutt[ed]by clear and convincing evidence.’” [Slip op. 5]. The primary concern in such an analysis is to ensure that the obligations of the requested nation are satisfied. See United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir. 1988).
Although the U.S. did explain to the Venezuelan Ministry of Justice that Petitioner could face life in prison, they responded that “in principle” Petitioner would not face “life incarceration.” The Venezuelan Supreme court then reinforced this intent to limit the sentence. Further correspondence between U. S. and Venezuelan officials evidenced Venezuela’s strong intent to limit any potential sentence against Petitioner.
Finally, the Court notes that the Executive Branch’s view as to the meaning of international treaties deserves due deference. Here, the Ninth Circuit points out that a Note written by the State Department and faxed to the District Attorney, indicated that it disfavored a sentence of life imprisonment in order to preserve our relationship with Venezuela; this casts doubt on the notion that the clear intent of the Executive Branch was to support a sentence of life in prison.
“Because we find that clearly established federal law applies to limit the punishments extradited defendants can receive when conditionally extradited under a Treaty, and the facts of this case indicate that such limitations were intended here, we reverse the decision of the district court.” [Slip op. 7].
Citation: Benitez v. Garcia, 2006 WL 1391096 (9th Cir., May 23, 2006).
Filed in: 2006 International Law Update, Issue6
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Privy Council of United Kingdom upholds U.S.’s 1996 request for extradition of two alleged drug kingpins from Federation of St. Christopher and Nevis
Noel Heath and Glenroy Matthew (petitioners) are citizens of the Federation of St. Christopher and Nevis (the Federation). The U.S. government (respondent) wants them extradited for trial on serious drug charges. The U.S. charged both petitioners with having conspired to supply and import cocaine into the U.S. — Heath into New York, Matthew into Florida.
The U.S. had requested the petitioners’ extradition as far back as May 1996. In June of that year, the Federation’s Minister of Foreign Affairs ordered Dr. Haynes Blackman, the senior magistrate of the relevant district at that time, to issue warrants for their arrest. The Extradition Act of 1870 governs extradition in the Federation and it was the magistrate’s duty to hear the case in the same manner as if the prisoner were charged with an indictable offence committed in England. If the evidence produced would justify the prisoner’s committal for trial, the magistrate is to commit him to prison. If not, he should set him free. After a hearing in August 1996, Dr. Blackman held that both petitioners fell into the latter class.
Although judicial review proceedings in April 1998 led to the quashing of those discharge orders by the High Court the petitioners have been at liberty ever since. The intervening years, however, have seen a whole series of proceedings. Nothing daunted, the petitioners have gone on resisting their extradition by all available means. After a series of drawn out procedural misadventures and corrections, complicated somewhat by the retirement of Magistrate Blackman, the petitioners brought their first appeal to the Privy Council.
They advanced four main contentions. First, they urged that the Minister of Foreign Affairs had no power to issue the requisitions to the magistrate on June 24, 1996. Secondly, they argued that the High Court was itself in error in ruling that the magistrate had taken a wrong approach to the evidence before him. (In particular this involved a holding that the transcripts of certain tape recorded telephone conversations, apparently implicating the petitioners in the alleged drug offenses, were inadmissible in the extradition proceedings).
Their third point was that section 14 of the Federation’s Constitution barred the United States’ judicial review challenge to the magistrate’s original discharge orders made under section 10 of the 1870 Act. Finally, petitioners complained that there had been such a long delay in the case as to amount to oppression and an abuse of process.
Having considered and rejected each of those submissions, the Board advised Her Majesty to dismiss the appeal and to remit the case to the High Court. Following the Board’s order of June 26, 2002, the petitioners promptly applied to the High Court for constitutional relief, alleging that because of the delay it would be unfair and oppressive to continue the extradition proceedings against them. The High Court joined that application with the remittal. After hearings in December 2002, March 2003 and April 2003, the High Court dismissed the constitutional application on July 9, 2003. It also entered a mandamus order to the senior magistrate of the relevant district “to resume the hearing of the extradition proceedings and commit [the petitioners] … under the Extradition Act of 1870″.
Again the petitioners appealed, this time to the Federation’s Court of Appeal. They put forward three main grounds of appeal: first, that the U.S.’s tape recorded phone conversations were inadmissible, second, that the delay was so substantial that the court ought to discontinue the proceedings and third, that the High Court had acted unconstitutionally in ordering the magistrate to commit the petitioners under section 10.
The Court spurned all three grounds and dismissed the appeal on October 21, 2003. On July 31, 2004, it granted final leave to appeal to the Privy Council. Upon consideration, the Council dismisses the appeal and orders the utmost speed in carrying out the final extradition proceedings.
“The principal argument which Queens Counsel now urges upon [us] is that the judge acted unlawfully in directing the magistrate to commit the [petitioners] under section 10 of the 1870 Act so that the Court of Appeal were wrong to have upheld that order. [Counsel] acknowledges that, at any further hearing, the magistrate would be bound by the Board’s earlier ruling as to the admissibility and sufficiency of the evidence adduced in the extradition proceedings by the respondent government.”
“[Counsel] advances essentially three reasons why the Board should nevertheless conclude that it was wrong to issue mandamus directing the magistrate to commit the [petitioners]. First, he submits that such an order would deny [them] the opportunity to call or give evidence should they wish to do so. Secondly, he contends that the new magistrate, … would not have heard any evidence in the matter and could not therefore properly commit the [petitioners] under section 10. Thirdly, he indicates that the [petitioners'] wish to advance yet further arguments as to why it would be an abuse of process now to extradite them for trial in the U.S.” [¶ 13].
Their Lordships are unpersuaded on the first argument. “Critical to [counsel's] argument is that the opportunity to give evidence had not already been accorded to these [petitioners] in the course of the original committal hearings before Dr. Blackman in August 1996. Is that, however, so? The record of those hearings must be examined. It reveals the following.”
“All three defendants were represented by Dr. Fenton Ramsahoye QC. The proceedings against Heath were heard first, the evidence in his case being adduced on 19 and 20 August. At the conclusion of that evidence the record reads: ‘Dr Ramsahoye QC: ‘we are not leading any evidence”’.
“Dr. Ramsahoye then addressed the Court, followed by counsel for the U.S. followed by Dr. Ramsahoye in reply. The Court then announced that it would give its decision at a later date and that the proceedings against Matthew and Miller [N. B. the latter voluntarily returned to the U.S. and was convicted.] would commence the following morning. The evidence against the defendants in that case was given on 22 and 23 August following which once again Dr Ramsahoye and counsel for the U.S.A. addressed the Court. Later, on 28 October 1996, Dr. Blackman gave his reserved judgment concluding that, in neither case, did the evidence adduced by the U.S.A. justify the defendants’ committal for trial.” [¶ 15].
“Having regard to those facts, their Lordships are wholly unpersuaded that, by the conclusion of the hearing on 23 August, the [petitioners] still retained any right to call or give evidence in the committal proceedings. … It seems to the Board inconceivable that, had Dr Blackman eventually ruled (as it is now plain he should have done) the other way, it would then have been open to the [petitioners] to call evidence and have the whole case against them considered afresh.”
“Still less does it appear to their Lordships that there was any evidence then available to the [petitioners] which could possibly have refuted the prima facie case against them assuming that the transcripts of the intercepted telephone conversations had been held, as they should have been, admissible.” [¶¶ 15-17].
Petitioners also contended that the law required a remand to a new magistrate for a full hearing since Dr. Blackman has retired. “In their Lordships’ view there is nothing in this argument. They recognise that it was apparently by reference to Dr Blackman’s retirement that the Board thought it right on the 2002 appeal to remit the matter to the High Court to decide on the next step but their Lordships see no inconsistency between that order and the decision then taken by [the High Court] on the remittal to order the new magistrate to commit.”
“The position is no different from that which can arise on a prosecutor’s appeal by way of case stated from a decision of justices. If the Divisional Court conclude that the justices erred in law and that the only proper course open to them was to have convicted, they will send the case back to the justices with a direction to convict and it would be quite immaterial whether or not the constitution of the Bench had meantime changed.” [¶ 20].
The Privy Council next addresses two further arguments against extradition. “First the [petitioners] wish to contend yet again that the delay in their committal is such that it would now be an abuse of process to extradite them to the U.S.A.. Secondly they [point to their ] formal designation by the President of the United States on June 2, 2000 as “global drug traffickers” under the Foreign Narcotics Kingpin Designation Act , that they could not get a fair trial in the U.S.A.; there is, thus a real risk that they would suffer a flagrant denial of justice.”
Their Lordships conclude that these arguments fail on two grounds. First, assuming, as their Lordships would hold, that it was proper for [the High Court] on July 9, 2003, pursuant to the Board’s earlier judgment, to order the new magistrate to commit the [petitioners] to prison, it matters not whether grounds have subsequently arisen for contending that it would be oppressive or otherwise unfair now to extradite them. Following committal under section 10, it will be for the Minister then to decide whether to surrender them to the requesting state. No doubt it would be open to them to challenge the Minister’s decision by judicial review were there good grounds for doing so. That would not, however, invalidate the section 10 committal.” [¶¶ 22-23].
In addition, the Board rejects the contention based upon delay. “The longer the [petitioners] manage to draw out these proceedings, the longer the delay before they can eventually be extradited for trial. It by no means follows, however, that they can invoke this further delay to establish a case of hardship or oppression. In the first place it is they themselves who are largely responsible for it; … it was Dr Ramsahoye’s arguments which surprisingly persuaded the magistrate that [the High Court's] first order had failed to quash the original discharge orders.”
“As for the subsequent delay, this has resulted from the [petitioners'] relentless attempts to thwart the extradition process. Secondly, the [petitioners] can establish no convincing prejudice consequent upon the delay. They have, as stated, been at liberty ever since 28 October 1996. They can hardly complain … of the sword of Damocles hanging over them. Nor are their Lordships persuaded by the argument that, had they been brought to trial with reasonable expedition, they would have avoided designation under the United States Kingpin legislation in June 2000: their own efforts would inevitably have delayed extradition beyond that date.” [¶ 24].
With respect to the designation issue, the Board sees no merit in it. “The evidence is that the President’s designation of these [petitioners] … under the title ‘Foreign Narcotics Kingpin’ was announced in a press release on June 1, 2000, is contained in a U.S. Government public website, has been published by the press, and may well be published again in connection with their proposed trial. And this is so, [petitioners contend] despite specific provision being made in the legislation for a person’s name not to be disclosed if the U.S. Attorney General determines that such disclosure may jeopardise the integrity or success of an ongoing criminal prosecution. … Put succinctly, it is [petitioners'] basic submission that the United States courts would be unable to safeguard the [petitioners] against the prejudicial effects of their designation.”
Their Lordships brand this as an “impossible” argument.”A convenient statement of [the controlling] principle in the specific context of extradition law is to be found in the Supreme Court of Canada. [That Court pointed out] in The Republic of Argentina v. Mellino [1987] 1 S.C.R. 536, 558 [that]: ‘Our courts must assume that [the defendant] will be given a fair trial in the foreign country. Matters of due process generally are to be left for the courts to determine at the trial there as they would be if he were to be tried here.”
“Attempts to pre empt decisions on such matters, whether arising through delay or otherwise, would directly conflict with the principles of comity on which extradition is based.” In their Lordships’ view, the evidence comes nowhere near establishing that the [petitioners] would be at risk of suffering a flagrant denial of justice were they to be extradited. Rather the United States courts must be trusted to secure them a fair trial.”
“In summary, their Lordships conclude that there is nothing in any of the grounds of appeal and no substantial reasons advanced why these extradition proceedings should not now be brought to a speedy and final conclusion. The appeal is dismissed with costs. … These [petitioners] should be committed under section 10 without further delay.” [¶¶ 25-27].
Citation: Heath v. United States, 2005 WL 3299098 (Privy Council), [2005] U.K.P.C. 45.
Filed in: 2006 International Law Update, Issue 4
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New South Wales Federal Court of Appeal rules that evidence supplied by United States with its request that Australia extradite one of its residents for his leading role in conspiracy to pirate and distribute millions of dollars of software in U.S. and elsewhere showed conformity to requirement of “dual criminality”
On March 12, 2003, a federal grand jury sitting in Virginia indicted Hew Raymond Griffiths (appellant) having a screen name of “Bandido,” with conspiring to engage in, and to have in fact engaged in, internet software piracy in the United States in violation of its federal criminal copyright laws. The infringed items included copyrighted software, computer games and movies.
The violations consisted of their reproduction and distribution over the Internet, during 2000-2001, of at least ten (10) or more copies of one or more of the copyrighted works having a total estimated retail value of many millions of dollars. The criminal organization had about 60 members and called itself “Drink or Die” (DOD).
The American authorities have asked for his extradition from Australia under the Extradition Act 1988 (Cth) (the Act). Although the U.S. has alleged that appellant has been committing these offenses in the United States, at all pertinent times appellant was residing in Australia. Requesting his extradition under the Extradition Act of 1988 (Cth) (the Act), the U. S. filed an affidavit that described the investigations leading to the charging of appellant, the grand jury’s indictment and the charged offenses together with their elements and the evidence supporting them.
A magistrate sitting in New South Wales ruled that, pursuant to Section 19(10) of the Act, appellant was not eligible for surrender. In review proceedings under Section 21 of the Act, a judge of the Federal Court in Sydney held to the contrary.
Appellant appealed. Although he raised, inter alia, several issues about the sufficiency of the supporting documents, the more novel ground of appeal lies in the question of whether the U.S. request has satisfied the “dual criminality” demands of Section 19 (2)(c) of the Act. The Federal Court of Appeal, in a per curiam opinion, dismisses the appeal and holds that the appellant is eligible for surrender in relation to both extradition offenses.
DOD members began their pirating with the work of “suppliers” who upload new software on to DOD’s “drop site” before the manufacturers’ public release date. (The U.S. describes the drop site as a secure computer site hosted by a DOD member on the computer network of the Massachusetts Institute of Technology in Boston.) Other DOD members known as “crackers” would then remove the software from the drop site and use their skills to “crack” the software’s embedded copyright protection. Next “testers” would give the software a quality test, “packers” would break it apart and “couriers” would prepare it for distribution to DOD computer storage sites worldwide.
The Appellate Court explains further. “For the purposes of Section 19(2) of the Act, the conduct constituting the extradition offences in the U.S., or equivalent conduct, must be such as would have constituted an extradition offence or offences in the part of Australia where the Section 19 proceedings are being conducted (the counterpart offences).”
“The counterpart offences relied upon in the present Section 19 proceeding are offences against Commonwealth laws. They are conspiracy under Section 11.5 of the Criminal Code and copyright infringement under Section 132(2) of the Copyright Act 1968 (Cth). … Section 132(6) imposes a territorial limitation on this offence by providing that Section 132 only applies in respect of acts done in Australia.” [¶¶ 42-43]
“Accordingly, we agree with [the lower court's] conclusion that there was a sufficient statement of the conduct constituting the conspiracy offence in the supporting documents and that it could be discerned from the paragraphs in count 1 of the indictment when considered in light of [the U. S. prosecutor's] explanation of the necessary elements of the offence. We reject this ground of appeal.” [¶ 64-65]
The Court of Appeal then turns to the double criminality element. “The alleged insufficiency of the statement of conduct for Section 19(2)(c)’s double criminality purposes is at the heart of this ground. The contention is that to assert that copyright exists in a work and has been infringed is to assert legal conclusions according to the law of a particular jurisdiction, which conclusions are derived from the application of legal rules to ascertained facts. … This is because the supporting documents are insufficient to indicate whether (a) the material which was reproduced or distributed in the U.S. would attract copyright protection in Australia or (b) the reproduction or distribution constituted an infringement in this country.”
“Nonetheless, what is clear from the supporting documents is that there is a common field of discourse concerning copyright between the two countries. … Though not a matter of evidence, counsel for the U.S., in drawing attention to Section 184 of the Copyright Act and the Copyright (International Protection) Regulations 1969 (Cth), noted that the U.S. was a party to the Berne Convention and was a member of the World Trade Organisation.” [¶ 73]
“Before dealing with the parties’ contentions, it is necessary to comment briefly on Section 19(2)(c). For present purposes it is sufficient to reiterate observations made … in Dutton v O’Shane (2003) 132 FCR 352; 200 ALR 710 at [58]: ‘The relevant inquiry mandated by Section 19(2) of the Act is not whether there is a correspondence between the legal elements of offences under the municipal criminal laws of the requesting State and of the relevant part of Australia. It is whether the conduct constituting the offence in the requesting State constitutes … an extradition offence in that part of Australia in which the proceeding is conducted. The relevant inquiry is conduct based, hence the significance of the statement of the conduct constituting the offence in Section 19(3)(c)(ii).’” [¶ 77].
“The reason it is said the above matters establishing notional Australian copyright and infringement must be made out factually in the supporting materials is because an assertion in the supporting documents that there has been an infringement of a copyright work (that is, under U.S. law) is not determinative of any issue under the Australian Copyright Act. The relevant work may not be copyright in Australia. The copyright owner may be different in Australia. And the ‘infringement’ of copyright may not be an infringement under Australian law.”
“To illustrate the point, it is said that if the supporting materials had asserted that [appellant] had copied an identified computer program, and that computer program was not copyright under Australian law, then [appellant] could not be extradited — he would not have committed an offence under Australian law. If, instead of identifying the work, the U. S. materials had merely asserted that [appellant] had copied a ‘copyright computer program’, then the mere lack of detail and absence of supporting facts could not transform what would otherwise be a non-extraditable act into an extraditable act.” [¶¶ 80-81].
“As the lower court judge correctly stated: ‘the exercise of practical judgment which the Magistrate was required to carry out was to consider whether, if Mr Griffiths, while physically located in the United States, made an agreement, perhaps initially in the United States, to steal, reproduce and distribute Australian copyright works by obtaining access to a computer system situated in Australia, and by carrying out five overt acts of the conspiracy, either by himself or through co-conspirators in Australia, his conduct would necessarily involve the offence of conspiracy to infringe copyright in New South Wales. The answer to this is plainly that it would constitute such an offence.’” [¶ 91]
“It is, in our view, clearly the case that the conspiracy alleged in this matter was a continuing offence [cite] and that the conduct by virtue of which this particular conspiracy, in this particular case, was alleged to have been committed included the continuing performance of the agreement up to and including the [copyright infringements].”
“That conduct included not merely such acts as may have been performed by [appellant] personally but the conduct constituting its performance by others: on the admissibility of evidence of the acts and declarations of others against an accused conspirator. [Cite].”
“The conduct in performance so described in the indictment (but especially in the overt acts) as also in the affidavits, occurred in the U.S., and this was so in relation to actions of [appellant] notwithstanding his physical presence in New South Wales. Simply by way of illustration of this, three of the overt acts relied upon in the indictment related to the installation and use of the DOD site, ‘Fatal Error’ in Dulles, Virginia.” [¶¶ 94-96]
“Whatever may have been the particular place of origin of the conspiracy in so far as it concerned [appellant], the conduct constituting the offence, given its continuing character, can properly be said to have occurred in the U.S. and this includes [appellant's] own conduct notwithstanding his actual physical presence in New South Wales.”
“We do not refer to this, for the purpose of inquiring impermissibly into whether the U.S. properly had jurisdiction to entertain the matter. [Cite]. Rather it identifies the U.S. conduct that is to be considered for the double criminality purposes of Section 19(2)(c). It is conduct, we would emphasise, that is devoid of any relevant extra-territorial element.”
“In our view, the court below committed no error in making the factual transposition [noted] above, nor in reaching the conclusion he did in light of it.” [¶¶ 97-99].
“[The U.S. affidavit] and the exhibited indictment together indicate the context in which the conspiracy and copyright infringement occurred. It was one in which pirated software was to be provided to the underground Internet software piracy community. When a pirated product was released by DOD couriers, DOD members world-wide would be able to access the cracked software and, [according to the affidavit,] ‘were able to provide it to anyone they wished; as a result, unauthorised copies of copyrighted software were soon available to anyone with a computer and access to the Internet’.” [¶ 105]
“Given the object of the conspiracy, the manner of its performance and the resultant open access it gave to software that was otherwise intended for commercial gain, it would in our view be open properly to infer [cite] that the release by DOD of any cracked software programme to its own sites would of itself without more ‘[affect] prejudicially the owner of [that] copyright’ [under] Section 132(2)(b). The reason for this is that an alternate and illegitimate source for the owner’s work knowingly would have been created with the intent that it be used by members who would make it available to others. The evidence in the supporting documents is that such sources were so used.”
“This is not the basis upon which his Honour found that the requirement was made out, though it would be our preferred basis for concluding that the double criminality requirement had in this respect been satisfied.” [¶¶ 107-108]
Citation: Griffiths v. United States, 2005 F.C.A.F.C. 34; 214 A.L.R. 665 (Fed. Ct. App. Aust. 2005).
Filed in: 2005 International Law Update, Issue 12
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Australian Federal Court of Appeal rules that Australian resident was extraditable to U.S. for his part in alleged international criminal conspiracy to pirate copyrighted software since U.S. had made adequate showing of double criminality
These proceedings began when the United States government filed an extradition proceeding in the Australian courts. It alleged that Hew Raymond Griffiths (appellant), an Australian resident at all relevant times, conspired to engage in, and had in fact engaged in, Internet software piracy in the U.S. in violation of its federal criminal copyright laws. A grand jury sitting in Virginia has indicted appellant and the U. S. has asked for his surrender under Australia’s Extradition Act of 1988 (Cth) (the Act).
Reversing a magistrate’s ruling, a single judge of the Federal Court of Appeal has found appellant eligible for surrender to the United States and has made specific orders in that respect. The appellant seeks review of those orders by a three-judge panel.
The main legal objection pertains to whether the U.S. has met the “double criminality” standard of Section 19(2)( c). Under the Act’s Section 19(2)( c), the magistrate must be satisfied that, “if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia.”
Here, a magistrate sitting in New South Wales found, pursuant to Section 19(10) of the Act, that appellant was not eligible for surrender. The U.S. sought review of that decision by a single judge of this Court under Section 21. That judge ruled against appellant and a three-judge appellate panel granted review. The Federal Court of Appeal dismisses Griffiths’ appeal.
The main document supporting extradition was an affidavit from Robert W. Wiechering, an Assistant U.S. Attorney for the Eastern District of Virginia. It sketched out his qualifications and legal experience; described the investigations that led to the charging of appellant, along with the grand jury indictment, the offenses, their elements and the evidence supporting them. The affidavit also attached, inter alia, the affidavit of Dawn A Gabel, a Special Customs Agent; a copy of the indictment; and the statements of four of appellant’s alleged co conspirators who have admitted, and been convicted for, their part in the alleged conspiracy.
According to the U.S., the sixty or so members of the conspiratorial group dubbed themselves “Drink Or Die” (DOD). Their alleged M. O. was substantially as follows. DOD members began with the work of “suppliers” who would upload new software onto DOD’s “drop site” prior to the manufacturer’s public release date. The drop site was a secure computer site hosted by a DOD member on the computer network of the Massachusetts Institute of Technology in Boston.
Appellant (alias “bandido”) and other high level DOD members controlled access through tight security measures. As leader, appellant oversaw the maintenance and operation of these sites. Other DOD members called “crackers” would then remove the software from the drop site and “crack” the software’s embedded copyright protection. “Testers” would then quality test the software and “packers” would break it down before “couriers” got it ready for release and sent it to DOD-affiliated computer storage sites throughout the world.
When newly “cracked” or pirated software became available, a DOD leader, usually appellant, would email other DOD staff members reporting the fact. Moreover, DOD kept monthly summary reports that laid out the details of each release. For example, the emails and reports from November 2000 to December 2001 show that DOD had cracked and released more than 275 software programs worth over $US1,000,000.
The indictment also specifies five overt acts in furtherance of the alleged conspiracy. Significantly, the charges are that conspirators carried out all of them in Virginia, and that appellant had taken part in many of them. Count 2 charges appellant with copyright infringement in breach of U.S. law. Cited provisions of U.S. law show that it includes appellant’s acts of aiding and abetting.
Section 371 of U. S. Code Title 18 provides that, if two or more persons conspire to commit an offense that is not a misdemeanor and one or more of such persons does an act to effect the object of the conspiracy, each shall be liable to a fine and/or imprisonment for up to five years.
As to copyright offenses, 17 U.S.C. Section 506 (a) defines “criminal infringement.” It declares that “[a]ny person who infringes a copyright willfully either (1) for purposes of commercial advantage or private financial gain, or (2) by the reproduction or distribution, including by electronic means, during any 180 day period, of 1 or more copies or phone records of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, U.S. Code …”
The latter statute provides a penalty of imprisonment for up to 5 years for an offense under Section 506(a)(1) of title 17 if the offense “consists of reproduction or distribution during any 180 day period of at least ten infringing copies having a total retail value of more than $2,500.” Finally, the general section of Title 18, Section 2(a) provides that “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
The Court then outlines the U.S. offense of conspiracy as set forth in the affidavit. ” … [T]he crime is committed when two or more people agree to do something that is unlawful. It is not necessary for the conspirators to have made a formal agreement or to have agreed on every detail. One becomes a member of an unlawful conspiracy by wilfully participating in an unlawful plan with intent to advance an object or purpose of the conspiracy.” [¶ 32]
The affidavit then provides some evidentiary specifics that link appellant to the conspiracy. It particularly relies on the exhibited statements of appellant’s alleged co conspirators, implicating appellant as a leader of that conspiracy. All five of them have been convicted. Ms. Gabel’s affidavit also sets forth a body of evidence based on appellant’s materials which the Federal Police had seized in Australia. That evidence allegedly shows that appellant not only knew the purpose of DOD and knowingly joined it, but also that he rose rapidly to top leadership.
The U.S. prosecutor also alleges that an infringement of a copyright takes place under U.S. law: “whenever someone who is not the copyright owner and who has no authorization from the owner does an act that is the exclusive right of the copyright owner. Among the exclusive rights given to the copyright owner is the right to reproduce and the right to distribute the copyrighted work.” Neither appellant nor any other member of DOD had permission from the copyright holders to copy and market their copyrighted works.
The instant counterpart Australian offenses (CAOs) are breaches of Commonwealth laws. The CAOs include conspiracy within the Criminal Code and copyright infringement under the Copyright Act of 1968. They substantially track the essential principles of U. S. law. The statute limits copyright infringement to actions taken within Australia.
Before referring to what does emerge from the supporting documents, the Court makes the following observations. “First, as is well recognised, the agreement constituting a conspiracy is often incapable of being proved by direct evidence: [Cite] They are commonly proved by overt acts; and the overt acts often include the substantive crimes which are the object of the conspiracy. [Cite].”
“Secondly, proof of the offence of conspiracy may consist in evidence of the separate acts of the alleged co conspirators which, although separate, yet point to a common design and, when considered in combination, justify the conclusion that there must have been a combination such as that alleged in the indictment. [Cites].” [¶ 60]
Turning to the issue of double criminality, the Court makes the following comments. “We would note by way of preface that the supporting documents do not provide any account of federal copyright law in the United States. … As in Australia, copyright can exist in computer software, video games, music and movies; a software manufacturer can be the copyright owner; and copyright infringement can happen when a copyright work is reproduced without the permission of the copyright owner.”
“It may be the case that there are idiosyncratic differences between the copyright laws of the United States and Australia. … Nonetheless, what is clear from the supporting documents is that there is a common field of discourse concerning copyright between the two countries. It has not been suggested that such is not the case and it would be surprising if it was. Though not a matter of evidence, counsel for the United States, in drawing attention to Section 184 of the Copyright Act and the Copyright (International Protection) Regulations 1969 (Cth), noted that the United States was a party to the Berne Convention [as revised, eff. for U.S., March 1, 1989], and was a member of the World Trade Organisation.” [¶ 76]
“The appellant’s case is in substance that for the double criminality requirement to be satisfied … it must be shown that conduct would have constituted an offence under Section 132(2)(b) of the Copyright Act. For this to be demonstrated, it has to be shown that, under Australian law, (I) copyright would have subsisted in the works in question …; (ii) the owners of the relevant works were identified…; (iii) there was a reproduction without licence; and (iv) for the purposes of the Section 132(2)(b) offence there was, additionally, a ‘distribution’ of an article that the person knows, or ought reasonably to know, to be an infringing copy of the work to an extent that prejudicially affects the owner of the copyright.”[¶ 79]
“The requirement of Section 19(3)(c)(ii) is to provide a statement of the ‘conduct constituting the offence’. That conduct, as Section 10(2) indicates, is a reference to the acts or omissions by virtue of which the offence has been, or is alleged to have been, committed. Whether or not the pirated material is a matter of copyright in either the United States or Australia is not of itself a matter of conduct. It is more in the nature of ‘a state of things rather than an act’ [cite] which, as the United States acknowledges, it will be required to prove in any trial of the charges. The evidence of it was not required to be included in the supporting materials for the purposes of describing the conduct constituting the offence.” [¶¶ 84-85].
The heart of the appellant’s contention is that he was, at all relevant times, physically situated in Australia where the crimes were allegedly committed.
“Whatever may have been the particular place of origin of the conspiracy insofar as it concerned [appellant], the conduct constituting the offence, given its continuing character, can properly be said to have occurred in the United States and this includes [appellant's] own conduct notwithstanding his actual physical presence in New South Wales.” [¶ 97]
The appellant also forcefully argued that the supporting documents are entirely silent on the matter of prejudice and that the judge erred in equating evidence of gain or advantage to one party with prejudice to the other. The Court is unpersuaded.
“Mr Wiechering’s affidavit and the exhibited indictment together indicate the context in which the conspiracy and copyright infringement occurred. It was one in which pirated software was to be provided to the underground Internet software piracy community. When a pirated product was released by DOD couriers, DOD members world wide would be able to access the cracked software and, in Mr Wiechering’s words, ‘were able to provide it to anyone they wished; as a result, unauthorized copies of copyrighted software were soon available to anyone with a computer and access to the Internet’. … in the three years to December 2001, DOD was estimated to have caused the illegal reproduction and distribution of more than US$50,000,000 worth of pirated software, movies, games and music.” [¶¶ 105,106]
“Given the object of the conspiracy, the manner of its performance and the resultant open access it gave to software that was otherwise intended for commercial gain, it would in our view be open properly to infer [cite] that the release by DOD of any cracked software programme to its own sites would of itself without more ‘[affect] prejudicially the owner of [that] copyright’: Section 132(2)(b).”[¶ 107]
“This is not the basis upon which his Honour found that the prejudice requirement was made out, though it would be our preferred basis for concluding that the double criminality requirement had in this respect been satisfied.” [¶ 108]
Citation: Griffiths v. United States, 2005 WL 572006 (F.C.A.), [2005] F.C.A.F.C. 34 (March 10, 2005).
Filed in: 2005 International Law Update, Issue4
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Although criminal was extradited to U.S. from Colombia based on extradition treaty with diplomatic assurance that Government would recommend term of years rather than life imprisonment, Second Circuit upholds sentence of life imprisonment
In October 2000, Columbia extradited Alex Restrepo to the U.S. He had allegedly taken part in several robberies. At a Bronx, New York, robbery in August 1999, a person was murdered. Evidence pointed to Restrepo as involved in that robbery. He regularly drove a black Ford Explorer. The next day, police stopped such a vehicle. They found that Restrepo’s wife was driving it and also seized a magazine loaded with .45 caliber bullets.
The U.S. issued Diplomatic Note No. 1060, assuring Colombia that “the death penalty would not be sought or imposed in this case.” With Diplomatic Note No. 1206, the U.S. later stated that “should Mr. Restrepo be convicted of the offenses for which extradition has been granted, the United States … will not seek a penalty of life imprisonment …”
“The Government of the United States also assures the Government of Colombia that, should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against Mr. Restrepo, the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.”
Colombia extradited Restrepo based on four counts of a twelve-count indictment for racketeering-related charges. A New York federal court convicted Restrepo of racketeering and related charges, and sentenced him to life imprisonment. He appealed, arguing that the sentence violated the above diplomatic notes. The U.S. Court of Appeals for the Second Circuit, in a per curiam opinion, affirms.
Restrepo argued that, according to the international principle of speciality, the requesting nation may not try an extradited defendant for a crime not enumerated in the applicable extradition treaty. International comity also requires a country seeking extradition to adhere to any limitations which the surrendering country placed on the prosecution.
As for the diplomatic assurances, the Court of Appeals does not read them as absolute. “The note expressly contemplates the possibility that a sentencing court might impose a term of life imprisonment and assured Colombia that, if that occurred, the executive authority of the United States would seek to have the sentence commuted to a term of years.”
“As contemplated by Diplomatic Note No. 1206, the United States, through the U.S. Attorney for the Southern District of New York, requested that the District Court sentence Restrepo to a term of years. The Court, following 18 U.S.C. Section 1959(a)(1) and the applicable Sentencing Guidelines, imposed a life sentence. Contrary to Restrepo’s contention, the government fulfilled the commitment it made in Diplomatic Note No. 1206, and the Court was not obligated under that note to sentence Restrepo to a term of years.” [Slip op. 4-5]
The Court of Appeals, however, disagrees with the district court’s interpretation of the Diplomatic Note which suggested that, as an independent branch of government, it could ignore the extradition treaty. “The Judiciary is unquestionably independent of the Executive. However, the cauldron of circumstances in which extradition agreements are born implicate the foreign relations of the United States. In sentencing a defendant extradited to this country in accordance with a diplomatic agreement between the Executive branch and the extraditing nation, a district court delicately must balance its discretionary sentencing decision with the principles of international comity in which the rule of speciality sounds.”
“Courts should accord deferential consideration to the limitations imposed by an extraditing nation in [a reciprocal] effort to protect United States citizens in prosecutions abroad. … Moreover, in evaluating the exact limitations set by the extraditing nation, courts should not elevate legalistic formalism over substance. To do otherwise would strip comity of its meaning.”
“In sum, courts should temper their discretion in sentencing an extradited defendant with deference to the substantive assurances made by the United States to an extraditing nation. If anything, such deference may well allow the United States to secure the future extradition of other individuals because foreign nations would observe that the limitations they negotiated with the Executive branch in respect to the prosecution of their extradited citizens are being honored.”
“This is not a surrender of the independence of the Judiciary to the Executive branch. To the contrary, it is the classical deference courts afford to the political branches in matters of foreign policy.” [Slip op. 5-7]
Citation: United States v. Baez, 2003 WL 22682305 (2nd Cir. Nov. 14).
Filed in: 2003 International Law Update, Issue11
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In case involving Italian request that U.S. extradite two U.S. citizens for international drug violations, Eleventh Circuit reverses denial of habeas corpus petitions because government’s use of petitioners’ confidential disclosures to DEA over petitioners’ objections rendered extradition hearing fundamentally unfair
Italian authorities in Padua caught Theresa Bailey, a U.S. citizen, in 1997, with 3.2 kilograms of cocaine in her possession. Bailey owned up to police that she had been a drug courier for Mirta Rosa Valenzuela and Frederick Kirk Repper, both U.S. citizens. The following year, a judge in Padua issued warrants for Valenzuela and Repper. Italy later requested the extradition of both men based on the Extradition Treaty Between the Government of United States of America and the Government of the Republic of Italy (October 13, 1983, 35 U.S.T. 3023). Pursuant to the extradition request, a U.S. magistrate judge had both men arrested in 1999 in Palm Beach, Florida.
In the meantime, Valenzuela and Repper had met with agents of the Drug Enforcement Administration (DEA), Dan Bruce and Ed Duffy, and supplied information about their role in international drug smuggling. In fact, they became paid informants for the DEA and received guarantees that the U.S. would protect their confidentiality. In 1998, the DEA cut off the informant relationship because the two men had allegedly gotten in touch with members of the drug smuggling ring and were no longer cooperating.
At the probable cause hearing before a magistrate judge, the U.S. Attorney tried to introduce the affidavit of DEA Agent Bruce under seal, containing incriminating statements by Valenzuela and Repper. The magistrate judge refused to admit the document because it “had not come to the court through proper Italian channels required by treaty” and later threw out the extradition request. The U.S. Attorney filed a second complaint seeking the arrest of Valenzuela and Repper, this time with the Bruce Affidavit provided through the proper Italian channels. On May 10, 2000, the magistrate judge decided that the Bruce Affidavit was admissible and certified the extraditability of Valenzuela and Repper. The magistrate judge noted that the two men had received transactional immunity in the U.S., but ruled that such immunity did not protect them from prosecution in Italy or from use of their statements by Italian officials. The district court later denied their petition for a writ of habeas corpus. Valenzuela and Repper appealed.
The U.S. Court of Appeals for the Eleventh Circuit concludes that the magistrate judge had erred in admitting into evidence the statements that Valenzuela and Repper had made under guarantees of confidentiality. Because this affidavit was indispensable to the required finding of probable cause, the Court reverses and directs that the writ of habeas corpus issue.
First, the Court notes that the DEA agents never promised petitioners immunity from Italian prosecution. The agents granted transactional and use immunity, but only for criminal proceedings in the U.S.
Second, the U.S. Supreme Court has held that the Self-Incrimination Clause (the Fifth Amendment) does not apply extra-territorially. See United States v. Balsys, 524 U.S. 666, 672, 118 S.Ct. 2218, 2222 (1998) (see 1998 International Law Update 81). Therefore, even if Valenzuela’s and Repper’s statements in the Bruce Affidavit were “compulsory,” the Clause would not bar their use in an extradition hearing.
Third, the Court finds that the U. S.-Italian investigation was not so jointly and cooperatively conducted so as to allow Valenzuela and Repper to use the dicta in Balsys that may allow individuals to claim that the foreign prosecution is virtually a U.S. prosecution.
Valenzuela and Repper also argued that the U.S. Attorney’s use of the Bruce Affidavit to establish probable cause breached the DEA agents’ promise to protect their confidentiality. Such breach allegedly rendered the extradition hearing fundamentally unfair and denied them due process of law.
“In this case, petitioners were aware that they had committed crimes in Italy for which they could be prosecuted. They conditioned their cooperation with the DEA, in part, on the agents’ promise of confidentiality. They no doubt would have refused to provide the agents with the inculpatory information regarding the drug transactions if the agents had told them that the information they provided, along with their identities, might be disclosed to the Italian authorities and might result in their extradition to Italy for trial.”
“In this case, the Government not only ignored the agents’ promise – by revealing identity and the information they provided to the Italian authorities – but it went one step further: it used the fruits of the breach by presenting the information to the magistrate judge, all to the petitioners’ detriment. To affirm the district court’s judgment would be to countenance the Government’s conduct. …”
“The magistrate judge explicitly concluded that without the Bruce Affidavit, the evidence presented was insufficient to sustain the extradition of Valenzuela and Repper under the Treaty and 18 U.S.C. Section 3184. Having concluded that this evidence was admitted contrary to the petitioners’ due process right to a fundamentally fair hearing, we have no choice but to reverse the district court’s judgment and to direct the court to grant petitioners’ application for a writ of habeas corpus.” [Slip op. 17-18]
Citation: Valenzuela v. United States, 2002 WL 452860 (11th Cir. March 25, 2002).
Filed in: 2002 International Law Update, Issue 4
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