Extradition to Spain—US Soldiers Update

Spain’s National Court has upheld the warrants for the arrest of three soldiers in the US Army.^[1] The warrants were challenged by a state attorney who claimed the Spanish tribunal did not have jurisdiction over the matter, which involves the killing of television cameraman Jose Couso in April of 2003.^[2]

National Court Judge Santiago Pedraz, in rejecting the attorney’s challenge, said “there is sufficient reason to believe they are responsible” for the murder and additionally for “crimes against the international community.”^[3] Judge Pedraz also made it clear that the charges were not a reprisal for the US’s lack of cooperation in the investigation.^[4]

Spain does not expect the US to arrest the soldiers, but they would be subject to detention, “with an eye to extradition to Spain,” if they travel to another country that has an extradition treaty with Spain.^[5]

We have previously discussed the case here.

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[1] Spanish Court Upholds Warrants for US Soldiers, Expatica.com, Oct. 28, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.

Extradition to South Korea—Investment Fraud

A South Korean man wanted in that country for an alleged investment fraud scheme has been approved for extradition by Federal Magistrate Judge Paul Abrams.^[1] Kyung Joon Kim was arrested in May of 2004 at the request of the South Korean government on allegations that he created a company called Optional Ventures Korea, through which he allegedly embezzled nearly US$20 million to create fictional companies in other countries.^[2] Through those companies, he allegedly shuffled stolen money to create the impression that international firms were investing in his company.^[3] In making his decision, Judge Abrams said that there was sufficient evidence to extradite Mr. Kim, because “the sheer number of witnesses who implicate Kim in the criminal offenses makes it improbably that they could all be lying.”^[4] During an extradition hearing, an extradition judge does not need to determine whether the defendant actually committed the offense. Instead, his hearing is to determine “whether (1) the crime is extraditable; and (2) there is probable cause to sustain the charge.”^[5]

Under the terms of the treaty, this type of investment fraud is extraditable because it is a crime in both the United States and in South Korea; the treaty states that “[a]n offense shall be an extraditable offense if, at the time of the request, it is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year, or by a more severe penalty.”^[6]

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[1] Judge Approves Extradition of South Korean Man Accused of Fraud, Associated Press, Oct. 25, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005) (quoting Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000)). We have actually discussed Mr. Prasoprat in an earlier posting, here.
[6] Extradition Treaty, Jun. 9, 1998, U.S.-S. Korea, art. 2, para. 1, S. Treaty Doc. No. 106-2 (1999).

McNabb in the News

Senior Principal Douglas McNabb was quoted in an article discussing the length of time it might take for Frederick Russell to be extradited from Ireland—if he is at all.

Douglas McNabb is a Washington, D.C.-based attorney whose firm specializes in extradition cases. He doesn't believe the Russell case poses any special challenges. "I think if the U.S. request, pursuant to the treaty, is properly drafted and filed with Ireland, we ought to be able to get the gentleman back to the states," McNabb said.

There is nothing in the treaty that would appear to make Russell's case difficult, unless he is married to the woman he lives with in Ireland, McNabb said. That could complicate the case, he said.

Russell's status as an illegal alien in Ireland should also make it easier to extradite him, McNabb said. Hopkins said Monday there is no record that Russell legally entered that country after flying to England.^[1]

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[1] Nicholas K. Geranios, Russell Extradition Fight May Take Years, Associated Press, Oct. 26, 2005.

Extradition from Ireland—Frederick Russell

Frederick Russell, who fled from his vehicular homicide trial in Washington state four years ago, has been apprehended in Ireland.^[1] This may be the last country that prosecutors would have wanted Mr. Russell to be found. As we have previously discussed here, extradition requests made to Ireland have been less than successful in the past two decades.^[2] As the AP reports, in a story that quotes Senior Principal Douglas McNabb, there are no guarantees that Ireland will extradite Mr. Russell.^[3]

Mr. Russell was charged in 2001 for killing three people and injuring four others while driving an SUV at 90 mph.^[4]

The problem with the extradition request is not the crime with which Mr. Russell is charged. Under the terms of the treaty, offenses are extraditable if both countries make the offense a crime.^[5] Instead, it seems that the problems with extradition tend to be procedural. As Mr. McNabb is quoted as saying “I think if the U.S. request, pursuant to the treaty, is properly drafted and filed with Ireland, we ought to be able to get the gentleman back to the states.”^[6] Furthermore, it seems that Mr. Russell entered the country illegally, and was living under an alias, facts which both support the notion that there is nothing inherently special about the case which would prohibit the extradition.^[7]

It is now up to the Department of Justice to ensure that the paperwork is complete and proper, and the preparation of those documents is well under way.^[8]

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[1] Nicholas K. Geranios, Russell Extradition Fight May Take Years, Seattle Post-Intelligencer, Oct. 26, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Extradition Treaty, Jul. 13, 1983, art. II, para. 1, S. Treaty Doc. No. 98-19 (1984).
[6] Geranios, supra note 1.
[7] Id.
[8] Id.

McNabb in the News

Senior Principal Douglas McNabb has been quoted in an article about the extradition proceedings facing Frederick Russell.

Douglas McNabb is a Washington, D.C.-based attorney whose firm specializes in extradition cases. He doesn’t believe the Russell case poses any special challenges.

“I think if the U.S. request, pursuant to the treaty, is properly drafted and filed with Ireland, we ought to be able to get the gentleman back to the states,” McNabb said.

There is nothing in the treaty that would appear to make Russell’s case difficult, unless he is married to the woman he lives with in Ireland, McNabb said. That could complicate the case, he said.

Russell’s status as an illegal alien in Ireland should also make it easier to extradite him, McNabb said. Hopkins said Monday there is no record that Russell legally entered that country after flying to England.^[1]

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[1] Nicholas K. Geranios, How Soon Might Fugitive Frederick Russell be Extradited?, Associated Press, Oct. 25, 2005.

Extradition From Afghanistan—Haji Baz Mohammad

A Taliban-link Afghani poppy farmer has been extradited from Afghanistan to the United States to face trial for alleged trafficking in opium and heroin.^[1] He is considered the first person to be extradited from Afghanistan to face federal charges in the United States.^[2] Mr. Mohammad was arrested in Afghanistan in January, and quietly arrived in the United States on Friday, October 21, to face charges that he conspired to traffic in narcotics.^[3]

The extradition from Afghanistan was slightly complicated. Citizens of Afghanistan cannot be extradited unless it is done according to mutual agreement or international conventions to which Afghanistan is a party.^[4] There is no bilateral extradition treaty between the US and Afghanistan, so extradition must be done under the auspices of an international convention.

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [hereinafter Convention]^[5] is the convention that provides the key for extradition, but even then, it is complicated. Under the extradition rubric in the Convention, any of the offenses in the treaty will “be deemed to be included as an extraditable offence in any extradition treaty existing between Parties.”^[6] However, as there is no bilateral treaty, that provision is meaningless in this case. In Afghanistan’s case, which requires an international convention to extradite a citizen, it is the next paragraph which allows for extradition. The Convention states, “[i]f a Party which makes extradition condition on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty,” which is the case here, “it may consider this Convention as the legal basis for extradition in respect of any offence to which this article applies.”^[7] Growing opium poppies and trafficking in narcotics are both offenses under Article 3 of the Convention. Therefore, if Afghanistan so desired, which it seemed it did, it could extradite Mr. Mohammad based on the extradition provisions of the Convention.

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[1] From Kabul to NY, NY, CBSnews.com, Oct. 24, 2005, available here.
[2] Id.
[3] Id.
[4] Afg. Const. ch. II, art. 28, available here.
[5] United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, S. Treaty Doc. No. 101-4 (1990).
[6] Id. art. 6, para. 2.
[7] Id. art. 6, para. 3.

Extradition from Switzerland—Oil-for-Food Scandal

Along with indicting Oscar Wyatt Jr. for his alleged role in an Oil-for-Food scandal, which we have discussed here, a federal grand jury out of the Southern District of New York indicted two of Mr. Wyatt’s business associates, Catalina del Socorro Miguel Fuentes (aka Cathy Miguel) and Mohammed Saidji.^[1] Ms. Miguel and Mr. Saidji are thought to be located in Geneva, Switzerland, which will necessitate their extradition from that country.^[2] Federal prosecutors have already signaled their intention to have the two individuals extradited from Switzerland.

Under the terms of the extradition treaty between the US and Switzerland, there is a dual-criminality requirement for extradition.^[3] In other words, “[a]n offense shall be an extraditable offense only if it is punishable under the laws of both Contracting Parties by deprivation of liberty for a period exceeding one year.”^[4]

The two individuals are charged with committing the same crimes as Mr. Wyatt:
wire fraud, conspiracy and conspiracy to commit wire fraud, acts of terrorism (prohibited financial transactions), and violating export controls under the International Economic Powers Act. It will be interesting to see if Switzerland agrees to extradite Ms. Miguel or Mr. Saidji for the prohibited financial transactions charge or the export controls charge, because it is not clear whether Switzerland has similar crimes for those activities. The conspiracy and wire fraud charges are certainly crimes in Switzerland.

We have previously discussed extradition from Switzerland here.

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[1] David Ivanovich, Texas Oil Mogul Indicted in Scam, Houston Chronicle, Oct. 21, 2005, available here.
[2] Id.
[3] Extradition Treaty, Nov. 14, 1990, U.S.-Switz., art. 2, para. 1, S. Treaty Doc. No. 104-9 (1997).
[4] Id.