McNabb in the News

Senior Principal Douglas McNabb was interviewed on the Spokane, Washington, CBS affiliate where he discussed the US extradition request from Ireland of Frederick Russell who fled from his vehicular homicide trial in Washington state 4 years ago.

Extradition to Italy—CIA Kidnapping

An Italian prosecutor in Milan has reportedly sent a request for the extradition of 22 CIA operatives to Italy’ Justice Ministry.^[1] Italian Justice Minister Roberto Castelli will make the final determination whether the request will be forwarded to the United States, and it is not yet known whether he will do so.^[2]

The CIA agents are wanted in Italy for the alleged kidnapping of popular Imam Osama Moustafa Hassan Nasr, who is perhaps better known as Abu Omar.^[3] Mr. Omar was allegedly abducted by the CIA on a Milan street on February 17, 2003, before being flown to Egypt where he was reportedly tortured.^[4] This “extraordinary rendition” outraged Italy, and Milan Prosecutor Armando Spataro issued arrest warrants for the 22 CIA officers who allegedly took part in the kidnapping.^[5]

According to the Italian newspaper Corriere della Sera, a photo of Abu Omar walking on the street near where he was kidnapped has been found on the computer of Robert Seldon Lady, one of the agents who led the alleged kidnapping, even though it had originally been deleted.^[6]

Any extradition request made by Italy will likely encounter the same difficulties that Spanish authorities are experiencing with their request for three American soldiers in relation to their alleged murder of a Spanish journalist. The facts of that case have been discussed here.

Under the extradition treaty between the US and Italy, the baseline alleged crime is an extraditable offense because kidnapping is a crime in both countries for which the punishment is “deprivation of liberty for a period of more than one year.”^[7] However, extradition will not be granted if the offense is purely political,^[8] or “for offenses under criminal law which are not offenses under ordinary criminal law.”^[9] These exceptions do not seem to apply in this case. Kidnapping an Imam is not really a political offense, and the Italians do not seem to be requesting the extradition for a military offense.

However, the US is extremely reticent to extradite intelligence assets for the simple reason that national security is at stake.

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[1] Victor L. Simpson, Italians Seek Extradition of CIA Agents, Associated Press, Nov. 11, 2005, available here.
[2] Id. See also, Paolo Biondani et al., Foto della CIA Svela il Sequestro dell’Imam, Corriere della Sera, Nov. 11, 2005, available here.
[3] Simpson, supra note 1.
[4] Id.
[5] Id. See also our post on the CIA’s “black sites” here.
[6] Biodani, supra note 2.
[7] Extradition Treaty, Oct. 13, 1983, U.S.-Italy, art. II, para. 1, S. Treaty Doc. No. 98-20 (1984).
[8] Id. art. V, para. 1.
[9] Id. art. V, para. 3.

Extradition from Canada—John Graham

John Graham, a Canadian man who is wanted in the United States on charges that he killed an American Indian Movement activist nearly 30 years ago, is challenging a Canadian court’s decision to have him extradited to the United States.^[1] At issue in his appeal is whether amendments to the Canadian Extradition Act, which “put less onus on countries to provide evidence to back their requests,” are constitutional.^[2] As a result, Mr. Graham will not be sent to the US before June 23 at the earliest.^[3]

Mr. Graham is accused of killing Anna Mae Pictou Aquash, who, like Mr. Graham, was an activist in the American Indian Movement.^[4] Ms. Aquash was a Mi’kmaq from Nova Scotia and her body was found in 1976 at the Pine Ridge Indian Reservation in South Dakota with a gunshot wound in the back of her head.^[5]

Mr. Graham claims that he had nothing to with her death, but his co-defendant, Arlo Looking Cloud, was convicted of first-degree murder last year.^[6]

Under the terms of the extradition treaty, murder is a crime for which extradition can be granted, because it is an offense punishable by the laws of both countries by imprisonment for more than one year.^[7]

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[1] John Graham to Remain Free on Bail, Associated Press, Nov. 10, 2005, available here.
[2] Former Native Activist’s Bail Extended in U.S. Murder Case Extradition Bid, Canadian Press, Nov. 7, 2005, available here.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Protocol Amending the Extradition Treaty with Canada, Jan. 11, 1988, U.S.-Can., art. 1, S. Treaty Doc. No. 101-17 (1991).

Extradition to South Korea—Heung Joo Kim

A Korean national who was the subject of an Interpol “Red Notice,” has been arrested in New Jersey by Immigration and Customs Enforcement [hereinafter ICE] agents.^[1] Heung Joo Kim is wanted in South Korea for embezzling stock and currency valued at US$8 million.^[2]

The Compliance Enforcement Unit [hereinafter CEU] at ICE headquarters discovered that Mr. Kim was living in the United States when agents cross-referenced fingerprints received from Interpol and Korean officials against the US-VISIT Automated Biometric Identification System.^[3] US-VISIT is a program run by the Department of Homeland Security [hereinafter DHS], and it stands for United States Visitor and Immigrant Status Indicator Technology.^[4] Mr. Kim’s fingerprints were stored in the US VISIT database when he entered the US as a visitor in December, 2004.^[5]

The investigation began last month when the CEU received several thousand fingerprints from Interpol, which were immediately cross-referenced in the US-VISIT databases.^[6]

Mr. Kim is now in ICE custody facing an extradition request from South Korea.^[7]

According to the terms of the extradition treaty between the US and South Korea, financial crimes are included in the offenses for which extradition is available. The treaty contains a dual-criminality clause which states that “an 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.”^[8] Embezzlement is a crime in both countries.^[9]

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[1] ICE, Fugitive in $8 Million Korean Stock Fraud Nabbed, Nov. 7, 2005, available here.
[2] Id.
[3] Id.
[4] See DHS, Fact Sheet: US-VISIT Program, available here (last visited Nov. 9, 2005).
[5] ICE, supra note 1.
[6] Id.
[7] Id.
[8] Extradition Treaty, June 9, 1998, U.S.-S. Korea, art. 2, para. 1, S. Treaty Doc. No. 106-2 (1999).
[9] See, e.g., 18 U.S.C. §§ 641 et seq.; Global Legal Information Network, Summary: Act on the Regulation and Punishment, etc. of Secretion of Proceeds from Illegal Activity, available here (last visited Nov. 9, 2005).

Extradition from Canada—Robert Lavine

The extradition of Robert Lavine from Canada to the United States is taking longer than an Ohio prosecutor would like.^[1] Two years ago, Mr. Lavine pleaded no contest to 88 counts of possessing and creating child pornography in Ohio.^[2] But he fled to Thornhill, Canada before he could be sentenced, and now, Ohio prosecutor Ron O’Brien is becoming frustrated.^[3] According to him, in cases other than for the death penalty, extradition “is usually accomplished within 90 days. … It’s just, for lack of a better description, legal technicalities that keep arising, and delays and continuances. And I understand, there is under the Canadian Extradition Act a method to appeal each decision in the process of extradition.”^[4] Armand La Barge, the police chief in Canada’s York Region admits that appeals have delayed the case.^[5]

Indeed, under the Canadian Extradition Act, “a person may appeal against an order of committal … to the court of appeal of the province in which the order of committal … was made, (a) on a ground of appeal that involves a question of law alone; (b) on a ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge of the court of appeal; or (c) on a ground of appeal not set out in … (a) or (b) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal.”^[6]

If the court of appeal allows an appeal, which it has done in this case, it can set aside the order of committal and either discharge the person or order a new extradition hearing.^[7]

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[1] Americans Frustrated by Extradition Delays, CBC News, Nov. 8, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Extradition Act, S.C., ch. 18, § 49 (1999).
[7] Id. § 54(a).

Extradition to the Philippines—Rod Lauren Strunk

As a testament to just how long extradition cases can take, we turn our attention this morning to Rod Lauren Strunk, who is suspected of murdering his wife, actress Nida Blanca, nearly 4 years ago in the Philippines.^[1] Mr. Strunk left the Philippines in February of 2002 to visit his ailing mother; he was arrested and detained in Las Vegas, in November of 2003, after the Philippines government filed an extradition request for him.^[2] That request failed, and the Philippines is preparing to file a new request for Mr. Strunk; Philippines Justice Secretary Raul Gonzalez says “I only have the draft. I still have to finalize it.”^[3]

The original extradition request sheds some light on the elements a government must prove to obtain the extradition of a person held by the United States. US Magistrate Judge Gregory Hollows presided over the original request, and he stated that “all provisions of the extradition treaty must be honored including those which set minimum standards for permitting extradition in the first place.”^[4] At issue in the case was whether the Philippines’ request was “accompanied by such evidence as, according to the law of the Requested States [the United States], would provide cause for his arrest and committal for trial if the offense had been committed there.”^[5]

In an extradition hearing, the judge “applies a standard similar to that of a preliminary hearing, determining whether the evidence justifies holding the accused for trial, not whether the evidence may justify a conviction.”^[6] In order to find Mr. Strunk extraditable, the court would have to find that the court has jurisdiction over the subject matter and the fugitive; that the crime for which surrender is requested is an extraditable offense covered by a valid and enforceable treaty; and that there is competent and sufficient evidence to demonstrate probable cause that the accused committed the alleged offense.^[7]

In this case, the only element at issue was whether the evidence presented by the Philippines was sufficient. The requesting country is not required to submit all its evidence, and the court has limited discretion in determining what evidence to admit in opposition to an extradition request; in other words, the “general ‘rule of non-contradiction’ holds that evidence may not be offered to contradict testimony or challenge the credibility of a requesting country’s evidence.”^[8] However, a fugitive can “’offer evidence that tends to explain the government’s case of probably cause.’”^[9] In other words, while the fugitive cannot make the court weigh conflicting evidence, he is nonetheless “permitted to produce evidence in an attempt to ‘negate’ or ‘obliterate’ probable cause.”^[10] As a final consideration, “[i]nternational extradition proceedings are not governed by the Federal Rules of Evidence, the hearsay prohibitions, or the Sixth Amendment speedy trial guarantee.”^[11]

Calling the evidence in the case “a confusing mish-mash of declarations within declarations, some containing argument, and some only facts,”^[12] the Court determined that “the evidence submitted by the Philippines concerning Strunk’s participation in the murder of Blanca is so inconsistent and conflicting that it provides little competent evidence to support the conclusion that Strunk hired [a third party] to murder Blanca.”^[13] Furthermore, the evidence “submitted by Strunk obliterates the case presented by the Philippines.”^[14] Therefore, the court denied the request for a certificate of extradition.

The final point to consider in all this, however, is the Court’s final paragraph. “This decision does not say that the Philippines could never make a case against Strunk should new, competent evidence be submitted,”^[15] and while neither country has a right to appeal a decision not to extradite, “double jeopardy principles are not in play, and a later, good faith attempt at extradition can be made.”^[16]

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[1] DoJ Readies Extradition Case vs. Nida Blanca Murder Suspect, INQ7.net, Nov. 7, 2005, available here.
[2] Id.
[3] Id.
[4] In re Extradition of Strunk, 293 F. Supp. 2d 1117, 1119 (E.D. Cal. 2003). (PDF).
[5] Id.; see also Extradition Treaty, Nov. 13, 1994, U.S.-Phil., art. 7, para. 3, Sen. Treaty Doc. No. 104-16 (1996).
[6] Strunk at 1121.
[7] Id. (citing 18 U.S.C. § 3184).
[8] Id. at 1121-22 (quoting Ann Powers, Justice Denied? The Adjudication of Extradition Applications, 37 Tex. Int’l L.J. 277, 312 (2002)).
[9] Id. at 1122 (quoting Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978)).
[10] Id. (citing Hooker at 1369).
[11] Id.
[12] Id.
[13] Id. at 1140 (emphasis in original).
[14] Id.
[15] Id.
[16] Id. n. 32 (citing United States v. Doherty, 786 F.2d 491, 501 (2d Cir. 1986); Hooker at 1366-68).