Extradition from Canada

The extradition hearing for popular Canadian marijuana activist Marc Emery is scheduled to begin on September 16.^[1] Mr. Emery is accused of sending marijuana seeds through the mail to U.S. citizens, conspiring to manufacture marijuana and conspiracy to engage in money laundering; he could potentially be sentenced to life in prison.^[2] He has even said that he will die in prison if he is extradited to the United States.^[3]

Mr. Emery claims that he has been selling seeds over the Internet and through the mail for eleven years, but no one has ever complained.^[4] The sale of marijuana seeds is illegal in Canada, but no one has been prosecuted for the crime in years.^[5]

The arrest of Mr. Emery has created something of a minor uproar in Canada. The Administrator of the DEA was quoted by Seattle Post-Intelligencer columnist Joel Connelly as saying that the arrest of Mr. Emery was partly political:

"Today's arrest of Mark (sic) Scott Emery, publisher of Cannabis Culture magazine and the founder of a marijuana legalization group, is a significant blow not only to the marijuana trafficking trade in the U.S. and Canada, but also to the marijuana legalization movement."

"Hundreds of thousands of dollars of Emery's illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canada. Drug legalization lobbyists now have one less pot of money to rely on."^[6]

Furthermore, the controversy stems from the fact that American drug laws are far harsher than Canadian drug laws. According to Neil Boyd, who is a professor of criminology at Simon Fraser University in Burnaby, British Columbia, what is “unusual about this case is that they are arresting a person for conduct that attracts very serious penalties in one country and potentially no penalties in Canada.”^[7]

The prosecution of Mr. Emery will be conducted through the terms of the mutual legal assistance treaty between the US and Canada, and the extradition of Mr. Emery will be conducted through the terms of the extradition treaty between the two countries.^[8] Principles of specialty and comity may complicate the extradition of Mr. Emery.^[9]

Mutual Legal Assistance Treaty^[10]
The MLAT requires the two countries to provide mutual legal assistance relating to the investigation and prosecution of certain offences.^[11] This assistance includes examinations, exchanging information, locating individuals, and serving documents^[12] Furthermore, assistance will be provided without regard to whether the conduct under investigation in the Requesting State constitutes a prosecutable offence in the Requested State.^[13]

Extradition Treaty^[14]
The extradition treaty between the US and Canada has been amended a number of times. The first time it was amended, on June 28, 1974, the list of crimes for which extradition could be granted was expanded and added as an appendix, which includes trafficking in Cannabis.^[15] The second time it was amended, in 1988, certain acts were excluded from the scope of the political offense exception, and a dual-criminality component was added.^[16] The third time it was amended, on January 12, 2001, a temporary surrender component was added.^[17]

The question of whether the arrest and request for extradition was political in nature becomes relevant because, by the terms of the treaty, extradition will not be granted when the offense is “of a political character” or the person whose extradition is requested proves that the extradition request “has been made for the purpose of trying or punishing him” for a political offense.^[18] Protocol 1 does not include drug offenses in the list of crimes to which the political offense exception applies, though it states that if there is another treaty to which the countries are parties and which concerns extradition for certain crimes, the political exception will not apply.^[19] The United Nations Convention Against Illicit Traffic in Narcotic Drugs is such a treaty, but the section on extradition states that “[e]xtradition shall be subject to the conditions provided for by the law of the requested party or by applicable extradition treaties, including the grounds upon which the requested Party may refuse extradition.”^[20] So, in other words, it is not entirely clear whether the political request tactic will be successful.

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[1] Extradition Hearing for Canadian Pot Activist to Begin Sept. 16, Seattle Post-Intelligencer, Aug. 26, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Joel Connelly, Pursuit of Drug Case All Smoke, No Fire, Seattle Post-Intelligencer, Aug. 5, 2005, available here. See also DEA Chief Admits Emery Arrest Was Political, ViveleCanada.ca, Aug. 6, 2005, available here.
[7] Ari Bloomekatz, Canada’s “Prince of Pot” Nabbed for U.S. Seed Sales, Seattle Times, Jul. 30, 2005, available here.
[8] Id.
[9] See, for example, yesterday’s discussion of extradition from Colombia, here.
[10] Treaty on Mutual Legal Assistance in Criminal Matters, Mar. 18, 1985, U.S.-Can., S. Treaty Doc. 100-14 (1990) [hereinafter MLAT].
[11] Id. art. II, para. 1.
[12] Id. art. II, para. 2.
[13] Id. art. II, para. 3.
[14] Extradition Treaty, Dec. 3, 1971, U.S.-Can., 27 U.S.T. 983 [hereinafter Treaty].
[15] Id. appx. para. 26.
[16] Protocol Amending the Extradition Treaty, Jan. 11, 1988, U.S.-Can., S. Treaty Doc. No. 101-17 (1991) [hereinafter Protocol 1]. The political offense exception changes are covered by Article IV, and the dual criminality component is covered by Article I.
[17] Second Protocol Amending the Extradition Treaty, Jan. 12, 2001, U.S.-Can., S. Treaty Doc. No. 107-11 (2002).
[18] Treaty, art. 4, para. 1, sec. iii.
[19] Protocol 1, art. IV. Para.
[20] United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 19, 1988, art. 6, para. 5, 28 I.L.M. 493 (1989) (emphasis added).

McNabb in the News

Senior Principal Douglas McNabb has been quoted by the Canadian Press in a story about Lord Conrad Black.

…U.S. authorities need to move quickly to lay charges against Black to get a potentially lengthy case started, said Douglas McNabb, senior principal at McNabb Associates….

"The U.S. cannot seek Mr. Black's extradition until after he has been charged," said McNabb, adding he's heard rumours that U.S. authorities could announce charges within a week.

Charges would lead authorities to request Black's extradition and to put a notice of the U.S. arrest warrant on Interpol, the international police network.

Even if charged and facing extradition, Black has several legal and appeal options that alone could drag out the extradition case for a few years at least, McNabb said.

"He's not a terrorist, he's a white collar guy, and he's got money and he's prepared to fight it," McNabb said from Houston.

Black, who gave up his Canadian citizenship a few years ago in a dispute with former prime minister Jean Chretien over a British peerage, could face years of prison time, "absolutely, without doubt if he's convicted," McNabb said.

That gives Black a good reason to take each legal battle as far as he can.

There's little reason to see why Britain would prevent Black's extradition, McNabb said, since in 2003 the country changed its own extradition laws allowing the U.S. to extradite people as long as they could prove charges were pending.^[1]

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[1] Gillian Livingston, Long Legal Battle Expected if U.S. Authorities Lay Charges, Extradite Black, Canadian Press, Aug. 25, 2005.

Extradition Treaty with Colombia

Attorney General Alberto Gonzales is visiting Colombia, marking the first visit by an American Attorney General to Bogota in nearly five years.^[1] As we showed last Friday, some Colombian senators are not very pleased with the extradition relationship currently in place. More than 350 Colombians have been extradited to the United States since President Alvaro Uribe came to power in 2002.^[2] By comparison, only roughly 50 suspects had been extradited to the United States between 1992 and 2000.^[3]

Attorney General Gonzales’ visit comes as some members of the Colombian Supreme Court expressed concern that the United States was, in some cases, failing to respect the terms of the bilateral extradition treaty.^[4] The maximum sentence for any crime in Colombia is forty years, but at least one extradited Colombian was sentenced to life without parole in the U.S.^[5]

This actually brings up an interesting issue. There seems to be no actual text in the treaty itself that provides such assurances. It is true that in some instances, the United States government has provided assurances to Colombia that a defendant would not be put to death or sentenced to life in prison, only to have the district court judge sentence the defendant to life in prison.^[6]

What is at issue here is the “international principle of specialty,” which holds that an extradited defendant may not be tried for a crime not enumerated in the extradition treaty, and only for the offence with which he is charged in the proceedings for his extradition.^[7] Indeed, the extradition treaty between the US and Colombia has a section devoted to the rule of specialty, which states that a person extradited under the treaty cannot be detained, tried, or punished for an offense other than that for which extradition has been granted.^[8] However, that is not, in itself, an assurance that the punishment must be same.

The theory that the punishment should be the same is based on international comity, which suggests that the principle of specialty “generally requires a country seeking extradition to adhere to any limitations placed on prosecution by the surrendering country.”^[9] As the court in Baez, cited below, notes “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.”^[10] Doing so can “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.”^[11]

The discontent of some Colombian senators is a direct result of the perceived dishonoring of the assurances, even if, as the court noted in Baez, the court may not have abused its discretion.^[12] In Baez, the executive authority did request the reduction in sentence, but the district court suggested that it could ignore the consequences of an extradition agreement between Colombia and the United States merely “because the Judiciary is a branch of our tripartite government independent of the Executive branch.”^[13] Instead, a court should pay close heed to the agreements, but it is not obligated to follow them.^[14] It would have been helpful if the Court of Appeals had explained why, after explaining how important it is to preserve international comity, a court is not obligated to heed the agreements, but it did not do so.

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[1] Kim Housego, U.S. Vows to Defeat Colombia Traffickers, The Ledger Online, Aug. 24, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] See United States v. Baez, 349 F.3d 90, 92 (2d Cir. 2003) (defendant extradited from Colombia based on an assurance found in Diplomatic Note No. 1206 that the United States executive authority “’will not seek a penalty of life imprisonment at the sentencing proceedings in this case. [Furthermore,] should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against [the defendant,] the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.’” The defendant was nonetheless sentenced to life imprisonment.).
[7] United States v. Rauscher, 119 U.S. 407, 430 (1886). (not available online)
[8] Extradition Treaty, Sep. 14, 1979, U.S.-Colom,, art. 15, para. 1, S. Treaty Doc. No. 97-8 (1981).
[9] Baez at 92, (citing United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (not available online)).
[10] Id. at 93.
[11] Id.
[12] Id.
[13] Id.
[14] Id.

McNabb in the News

Senior Principal Douglas McNabb was a guest on WWRL's Legally Speaking, where he discussed the federal crime of conspiracy. He also discussed differences between conspiracy involving mail fraud, wire fraud, bank fraud, money laundering, telemarketing fraud, and drug crimes. The host also discussed with Mr. McNabb the concepts of overt acts and withdrawal from a conspiracy.

Extradition to Australia

An Australian man has been extradited from the United States to Australia to face charges on a series of sexual assaults in Adelaide.^[1] Aspiring actor Benjamin Ainsworth was arrested in Los Angeles in December of last year after being tipped off by Australian detectives who had issued a warning through Interpol that they believed he was in Hollywood.^[2] Australian detectives were tipped off when he sent a postcard to his mother which had a fake address but had been postmarked in Hollywood.^[3]

Extradition to Australia is governed by treaty.^[4] One of the categories of offenses for which a person can be extradited is rape.^[5]

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[1] Man to Face Adelaide Court after US Extradition, ABC News, Aug. 20, 2005, available here.
[2] Australian Held Over Rapes, Daily Telegraph, Dec. 24, 2004. (not readily available on-line)
[3] Robert Lusetich, Fugitive Trapped by a Postcard, Australian, Dec. 24, 2004. (not readily available on-line)
[4] Extradition Treaty, May 14, 1974, U.S.-Austl., 27 U.S.T. 957.
[5] Id. Art. II, sect. 1, para. 5.

Extradition of Conrad Black

If federal authorities determine that a case can be made against Lord Conrad Black, whose associates were formally charged last week on shareholder fraud-related charges, the extradition battle between the United Kingdom and the United States could be a long one.^[1]

Extradition from the United Kingdom to the United States is governed by the UK’s Extradition Act of 2003, which we discussed earlier, here. Extradition proceedings, of course, cannot begin without a formal charge, and there are rumors that charges could be announced this week.^[2] If charges are announced, Lord Black has several legal and appeal options that could drag out a case for at least a few years, and has plenty of money to spend on the battle.^[3]

It is suspected that Lord Black’s longtime associate, David Radler—who has reportedly agreed to plead guilty—will provide information that would allow the federal government to bring charges against Lord Black.^[4]

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[1] Gillian Livingston, Long Legal Battle Expected if U.S. Authorities Lay Charges, Extradite Black, Canadian Press, Aug. 21, 2005, available here. Senior Principal Douglas McNabb was featured extensively in this article.
[2] Id.
[3] Id.
[4] Id.