Extradition from Brazil—Capital Punishment

A Daytona Beach man, Stephen Matthew Workman, was arrested in Brazil for a murder he allegedly committed in Florida.^[1] He was arrested at his place of employment, a movie production company, in Recife.^[2] It is alleged that Mr. Workman beat a Pam Coast, Florida, resident, Jason Gucwa, to death in March 2003, though he denies it.^[3]

The Brazilian Supreme Court will be determining whether Mr. Workman should be extradited to the United States, where he could face the death penalty.^[4] Mr. Workman’s lawyers want to conduct the trial in Brazil where the maximum penalty for any crime is 30 years.^[5] Furthermore, Mr. Workman is married to a Brazilian woman and has a child born in Brazil.^[6]

Extradition from Brazil to the United States could be complicated because Mr. Workman could face the death penalty if he is returned to the United States. While the extradition treaty between the United States and Brazil states that murder is indeed an offense for which extradition is possible,^[7] it also states that there is no obligation for the requested state (Brazil) to extradite the individual if the requesting state (the US) might impose the death penalty.^[8] The treaty states that when a crime is punishable by death in the requesting state but not in the requested state, the requested state can refuse extradition unless the requesting state provides satisfactory assurances that the death penalty will not be imposed.^[9]

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[1] Murder Suspect Arrested in Brazil, Sept. 9, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Extradition Treaty, Jun. 18, 1962, U.S.-Braz., art. II, para. 1, 15 U.S.T. 2093.
[8] Id. art. VI.
[9] Id.

Extradition from Colombia

A Colombian paramilitary leader wanted in the United States to face drug and money laundering charges might not be extradited any time soon.^[1] The Colombian Supreme Court has approved the extradition request for Diego Fernando Murillo, who is also known as Don Berna, but Colombian President Alvaro Uribe is hesitant to sign the extradition order.^[2] President Uribe wants to weigh the implications on Colombia’s efforts to disband its many paramilitary militias, whose leaders strongly resist being sent to the US to face criminal charges.^[3]

The demobilization campaign has been harshly criticized because the Colombian government is offering reduced prison sentences and other benefits to paramilitary leaders if they turn in their weapons.^[4] Likewise, extradition refusals have become something of an incentive. President Uribe is threatening to sign an extradition order on another paramilitary leader, Salvatore Mancuso, if that man does not cooperate with the peace program.^[5] Similarly, President Uribe’s spokesman has announced that Mr. Murillo’s extradition will be “suspended as long as the peace process continues and he respects and fulfills the rules.”^[6]

We have previously discussed extradition matters concerning Colombia here.

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[1] Hugh Bronstein, Colombian Court OKs Extradition of Militia Chief, Reuters.com, Sept. 7, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Juan Pablo Toro, Rebels Attacks (sic) Colombian Power Pylons, Guardian, Sept. 8, 2005, available here.

Extradition From Mexico

Mexico’s Supreme Court has approved a state law imposing virtually lifetime sentences for certain murders, which could potentially ease some limits on extradition to the United States.^[1]

The Mexican state of Chihuahua passed a law that allowed consecutive prison terms for murders involving children, women, and kidnap victims, even when the total was greater than 100 years.^[2] Most Mexican states have laws that limit total prison terms to no more than 50 years.^[3]

While life sentences are still technically unconstitutional in Mexico, and the decision only applies in Chihuahua, American officials are apparently looking at this decision favorably.^[4] Mexico currently refuses to extradite individuals to the US if a life sentence will be imposed, which has caused frustration when suspects flee to Mexico after committing “brutal” murders.^[5]

Justice Juan Diaz Romero says, however, that it is his personal opinion that “court precedent still blocks extradition where a life imprisonment was possible. But he said ‘there is a possibility’ that situation could change.”^[6]

There is nothing in the extradition treaty between the US and Mexico that explicitly forbids extradition based on life sentences. Instead, this is somewhat like the situation in Colombia, which we have discussed here, where the country is hesitant to extradite individuals if a life sentence will be imposed.

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[1] John Rice, Mexico Supreme Court Approves Virtual Lifetime Sentences, Associated Press, Sept. 6, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.

Extradition from Australia

A New South Wales, Australia, man is facing extradition to the United States for his role in an internet software piracy ring.^[1] Hew Raymond Griffiths, who has been fighting extradition since 2003, lost an Australian High Court bid for special leave to appeal against his extradition to the US.^[2] It was argued by Mr. Griffiths’ barrister that the extradition documents lacked enough detail to determine whether the allegations against his client would constitute a breach of Australian copyright laws.^[3] It is feared that a broad enough interpretation of Mr. Griffith’s situation could result in Australians being extradited to the United States for such copyright violations as illegally downloading music.^[4]

Mr. Griffiths was found ineligible for extradition by the Magistrates Court in Australia, but, on behalf of the US government, the Commonwealth Director of Public Prosecutions appealed that decision to the Federal Court, which overturned the lower court’s decision.^[5]

Justice and Customs Minister Chris Ellison will now make the decision whether Mr. Griffiths, who argues that Australia should prosecute its own citizens in matters of crimes committed over the internet, will be extradited to the US. ^[6] He can now only challenge his extradition with the Minister, a process that is expected to take months.^[7]

The extradition treaty^[8] and supplemental protocol^[9] between the United States and Australia contains a dual-criminality provision, which means that an offense is considered extraditable as long as it is a crime in both countries.^[10] Software piracy is a crime in the United States^[11], and presumably, in Australia.

This particular case seems to be hinging on the terms in Article 1, paragraph 4 of the protocol, which states that if an offense occurs outside the territory of the requesting state (the US), extradition will be granted if the laws of the requested state (Australia) provide for the punishment of an offense committed outside its own territory in similar ways.^[12] If the laws do not do so, then it is up to the discretion of the requested state whether to extradite the individual.^[13]

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[1] Andrew Colley, Drink or Die Extradition Decision, AustralianIT.com, Sept. 6, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Extradition Treaty, May 14, 1974, U.S.-Austl., 27 U.S.T. 957.
[9] Protocol Amending the 1974 Treaty, Sept. 4. 1990. U.S.-Austl., S. Treaty Doc. No. 102-23 (1992).
[10] See id., art. 1, para. 1.
[11] See 17 U.S.C. § 506.
[12] Protocol, art. 1, para. 4.
[13] Id.

McNabb in the News

Senior Principal Douglas McNabb has been quoted in an article about the upcoming Enron trial, and the NatWest Three.

Douglas McNabb … said that if the US succeeds with the extradition request, they will be treated as serious criminals.

"They will be handcuffed, they will be in leg chains and they will have chains around their waists. They will be kept in the maximum security federal detention centre and, if convicted, could receive 22 years without parole," said McNabb.

It could end up being the worst punishment meted out to anyone in the Enron scandal.^[1]

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[1] Katherine Griffiths, Houston Has a Problem: the Countdown Starts at Enron, The Independent, Sep. 4, 2005.