McNabb in the News

Senior Principal Douglas McNabb is quoted in the San Diego Union-Tribune in a story about Randy “Duke” Cunningham.

"If the other four gentlemen are indicted, the government is going to call on Mr. Cunningham to testify against one or more of these people, any one that goes to trial," said Douglas McNabb, a federal criminal defense lawyer with offices in Texas and Washington, D.C.^[1]

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[1] Onell R. Soto, Bribe Probe Likely Will Snare Others, Sand Diego Union-Tribune, Dec. 2, 2005.

International Extradition Weekly Recap

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Extradition Updates—John Boultbee and CIA Agents

As we noted yesterday, Lord Conrad Black appeared at his arraignment in Chicago, where he pleaded not guilty. In so doing, he has made it unnecessary to seek his extradition. Lord Black’s co-defendant, Peter Atkinson also appeared and pleaded not guilty as well.^[1] Absent from the arraignment was Lord Black’s other co-defendant, John Boultbee, who we mentioned on Wednesday had angered the Court for failing to show up for that day’s scheduled arraignment. Mr. Boultbee is now expected to appear some time next week and plead not guilty.^[2] If he does appear, his extradition, of course, will become unnecessary.

In other international extradition news, Italy’s Minister of Justice, Roberto Castelli is still reviewing the extradition request for 22 CIA agents wanted for kidnapping popular Milan Imam Abu Omar.^[3] In an interview with APcom, Mr. Castelli is quoted as saying “''We are looking at the cards to evaluate what decision to take.”^[4] This statement comes on the heels of a decision by Milan Judge Enrico Manzi that retired CIA officer Robert Seldon Lady—who is linked to the Abu Omar kidnapping—did not have diplomatic immunity.^[5]

Mr. Lady is being prosecuted for his alleged role in the kidnapping, and had argued that had diplomatic immunity as chief of the CIA’s operations in Milan, or that national security interests prevented his prosecution.^[6] It was determined that Mr. Lady lost his immunity when he retired, and, in any event, would not have immunity for a serious crime like kidnapping, even if he was still the chief of CIA operations in Milan.^[7] Mr. Lady appealed the ruling and lost, which could mean that much more light will be shed on this subject.

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[1] Paul Waldie et al., Black Pleads Not Guilty, Globe and Mail, Dec. 2, 2005.
[2] Id; see also Tara Perkins, Black Freed on $20 Million US Bail After Pleading Not Guilty to Fraud Charges, Canadian Press, Dec. 2, 2005.
[3] Italian Justice Minister Studying Extradition Requests for Purported CIA Operatives, Associated Press, Dec. 2, 2005. (Not readily available online)
[4] Id.
[5] John Crewdson, et al., CIA Retiree Loses Appeal in Italy, Chicago Tribune, Dec. 1, 2005.
[6] Id.
[7] Id.

Extradition from Britain—Lord Conrad Black

Lord Conrad Black has appeared at his arraignment and it appears his extradition will not be required at this time.^[1] Barring any surprises, future discussions about Lord Black will be done on our transnational crimes blog.

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[1] Conrad Black Arrives at Chicago Court, CBC News, Dec. 1, 2005.

Extradition from Britain—NatWest Trio Continued

On Monday we noted that the so-called “NatWest Trio” were launching the second prong of their battle against being extradited to the United States. The hearing is now over, and it seems to have gone quite well, with one of the judges hearing the case, Lord Justice Laws, saying that he does not “really understand why [the US government is] applying to prosecute these people if, hand on heart, the case is that the loser was NatWest bank, not Enron.”^[1] The only real answer the US government had in response, according to the International Herald Tribune, is that the three men allegedly committed part of the fraud in the United States, during a meeting with Enron executives in Houston in 2000.^[2] The other jurisdictional hook the US government offered was the allegation that emails were sent between the two countries.^[3]

Physical presence in the US is certainly a way to get personal jurisdiction over a defendant, but email traffic is a somewhat novel approach which has been used in recent years, and it has been quite controversial in other countries. For example, in early September, we discussed Raymond Griffiths who is wanted in the United States for copyright violations, but he is not alleged to have committed an act within the territory of the US. At issue in that case were the terms of Article 1, paragraph 4 of the protocol to the extradition treaty between the United States and Australia. This clause states that if an offense occurs outside the territory of the requesting states, extradition will be granted if the laws of the requested state provide for the punishment of an offense committed outside its own territory in similar ways.^[4]

Returning to the NatWest Trio, Lord Justice Laws wanted to make it clear at the hearing that his concerns were not based on jurisdictional or technical issues, but rather were based on problems regarding the overall case.^[5] He said that it was hard to understand why so much effort was being put into extraditing the three men, and that he was “very troubled as to where those matters lead to.”^[6] Justice Ouseley, also hearing the appeal, said that extradition serves a public-interest purpose by preventing suspects from fleeing: “The public interest must be diminished surely if the trial can take place in the … (home) state.”^[7]

A decision on the hearing is expected soon.

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[1] U.K. Judges are “Troubled” by Enron Extradition Bid, Intl. Herald Tribune, Nov. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Protocol Amending the 1974 Treaty, Sept. 4. 1990. U.S.-Austl., art. 1, para. 4, S. Treaty Doc. No. 102-23 (1992).
[5] Jane Merriman, Judge Questions Move to Extradite UK Bankers, Reuters, Nov. 30, 2005, available here.
[6] Id.
[7] Id.

McNabb in the News

Senior Principal Douglas C. McNabb has been quoted in a San Diego Tribune story^[1] about Congressman Randy “Duke” Cunningham’s guilty plea:

The plea agreement indicates that Cunningham already has begun talking, said Douglas McNabb ... who has represented public officials accused of corruption.

"What this says to me is that he decided pretty quickly that he wanted to cooperate," McNabb said. "This guy, in my view, has had multiple debriefings with the government and they have found him, in their view, to be very credible and very helpful. This case is not ending here."

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[1] Onell R. Soto, “Overwhelming Case” Forced Cunningham to Accept Deal, San Diego Union-Tribune, Nov. 30, 2005, available here.

Extradition from Israel—Zeev Rosenstein

Suspected underworld kingpin Zeev Rosenstein has lost his appeal to the Israeli Supreme Court, and his extradition to the United States has been approved.^[1] He is wanted in New York for his alleged part in “major” drug-trafficking deals involving Ecstasy.^[2] In their ruling, the Justices said “Israel—like the world’s other nations—is forced to confront a new criminal reality in which crime has become more organized, more international and more widespread than ever before,” and therefore they approved his extradition.^[3]

Israeli prosecutor Gal Levertov said that Mr. Rosenstein’s extradition could be arranged within a week’s time, though his defense lawyers say they can file appeals with the High Court of Justice, or request a second ruling with a wider panel of judges, though the High Court has apparently rejected all the potential appeals Mr. Rosenstein might make.^[4]

According to some news stories, Israeli police believe that, under the terms of “an extradition agreement” between the United States and Israel, Mr. Rosenstein could serve any sentence imposed on him in Israel.^[5] This is not quite accurate. There are no such provisions in the extradition treaty. The Convention on the Transfer of Sentenced Persons [hereinafter Convention], however, may be what the Israeli police had in mind.

Under the terms of the Convention, the preamble of which states that “foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society,”^[6] a person sentenced in the territory of a contracting nation may be transferred to the territory of another contracting nation.^[7] Both Israel and the United States are parties to the Convention.

There are six conditions that must be met for a sentenced person to be transferred under the Convention:

1. that person must be a national of the state to which he is to be transferred;
2. the judgment must be final;
3. at the time the request for transfer is made, the sentenced person must have at least six months of the sentence to serve, or the sentence must be indeterminate;
4. the sentenced person must consent to the transfer, or, if physical or mental deterioration necessitates a transfer, his legal representative must consent;
5. the offense for which the sentenced person is serving time must also be an offense in the transferee state; and
6. the two states must agree to the transfer.^[8]

Transfer may be requested by either the nation imposing the sentence, or by the country wishing to have its national serve his time in its territory.^[9]

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[1] Yuval Yoaz, Court Okays U.S. Extradition for Suspected Drug Baron, Haaretz.com, Nov. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, 35 U.S.T. 2867, T.I.A.S. 10,824.
[7] Id. art. 2, para. 2.
[8] Id. art. 3, para. 1.
[9] Id. art. 2, para. 3.

Extradition from Canada—Failure to Appear in Chicago

The fraud case surrounding Lord Conrad Black keeps getting more and more interesting. Lord Black’s co-defendants, Jack Boultbee and Peter Atkinson both failed to appear for their scheduled arraignment this morning.^[1] Mr. Atkinson has apparently notified federal prosecutors that he would appear for his arraignment tomorrow, alongside Lord Black, for which he received permission.^[2]

Mr. Boultbee’s absence, however, is not as easily explained. According to Assistant US Attorney Robert Kent, a lawyer purporting to represent Mr. Boultbee left a voice mail saying that Mr. Boultbee would not appear for his arraignment because he was attending to “unspecified” personal matters; Mr. Boultbee’s Toronto-based lawyer had no comment on the matter.^[3] Federal prosecutors will wait a few days before initiating extradition proceedings against Mr. Boultbee, who is a Toronto native.^[4]

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[1] Andrew Stern, Former Hollinger Execs Fail to Answer Fraud Charges, Reuters, Nov. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Id.

Extradition from Mexico—New Standards

In a rather surprising turn of events, the Mexico Supreme Court has ruled that defendants facing life sentences can be extradited from that country.^[1] Mexico will still refuse extradition in cases where the death penalty will be imposed.^[2]

The decision is surprising because, when we discussed the first inklings of a liberalization of that country’s extradition policies in early September, Mexico’s Justice Juan Diaz Romero said that it was his personal opinion that “court precedent still blocks extradition where life imprisonment was possible.”^[3]

Extradition will be possible in life-sentence cases because Mexico’s Supreme Court, in a 6-5 decision, struck down a constitutional ban on life imprisonment.^[4] The Court took up the issue after the northern state of Chihuahua modified its penal code to include life sentences for homicide and kidnapping.^[5]

The ruling means that the estimated 3,000 murderers who have fled to Mexico to avoid prosecution may find themselves subjected to extradition proceedings.^[6] While the US Embassy in Mexico had no comment about the ruling, Los Angeles County DA Steve Cooley was clearly excited, saying that his office is “getting into high gear to take advantage of this favorable decision.”^[7]

The extradition treaty between the United States and Mexico has no explicit provisions forbidding extradition in life-sentence cases; it had merely been a national policy that aggravated the United States. The treaty, however, does allow the countries to refuse extradition in the event the death penalty will be imposed.^[8] While the United States seemingly has no qualms about extraditing people to face the death penalty,^[9] Mexico outlawed the death penalty in June and will not extradite people who will be put to death.^[10]

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[1] Mexico Alters Extradition Rules, BBC News, Nov. 30, 2005, available here.
[2] Id.
[3] John Rice, Mexico Supreme Court Approves Virtual Lifetime Sentences, Associated Press, Sept. 6, 2005, available here.
[4] Mexican High Court Loosens Extradition Rules, CNN.com, Nov. 30, 2005, available here.
[5] Id.
[6] Id.
[7] Id.
[8] Extradition Treaty, May 4, 1978, U.S.-Mex., art. 8, 31 U.S.T. 5059.
[9] See, e.g., our post on Suwit Prasoprat, here.
[10] See Rice, supra note 3.

Extradition from British Virgin Islands—Renelle Lettsome

A resident of the US Virgin Islands has been arrested in the nearby British Virgin Islands.^[1] Renelle Lettsome was arrested on charges that include murder, arson, and weapons violations that relate to the attack on David Geiger and Mr. Geiger’s 14 year-old son.^[2] Mr. Lettsome is in British custody pending a hearing on extradition back to the US Virgin Islands.^[3]

The extradition treaty of 1972 between the United States and the United Kingdom covers all US territories and the British Virgin Islands.^[4] The new extradition treaty between the US and the UK, as we have mentioned before, has not yet come into effect, but the British Extradition Act of 2003 is that nation’s implementing legislation for that treaty. Under section 177 of that legislation, extradition from the British Virgin Islands will be covered by the Extradition Act of 2003. Murder, arson, and weapons violations are all extraditable offense, and all the US must provide is information about the commission of the crime.

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[1] Charlotte Amalie, Virgin Islands Police Arrest Suspect in Attack on Father and Son, NY Newsday, Nov. 29, 2005, available here.
[2] Id.
[3] Id.
[4] See Dept. of State, Treaties in Force 2005 331, Jan. 1, 2005, available here. (PDF)

Extradition from Britain—Conrad Black Arraignment Postponed

Lord Conrad Black’s arraignment, scheduled for tomorrow morning, has been postponed again.^[1] He is now scheduled to appear in federal court in Chicago on Thursday, December 1; he had originally been scheduled to appear last week, but received permission to delay his appearance until tomorrow to line up his defense.^[2] The reason he will appear on Thursday instead of tomorrow is because one of his new lawyers has a conflict.^[3] If Lord Black makes an appearance, his extradition will not be necessary at this time.

We previously discussed the charges Lord Black is facing here.

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[1] Black Arraignment Postponed to Thursday, Associated Press, Nov. 29, 2005, available here.
[2] Id.
[3] Id.

Extradition from Britain—NatWest Trio

Three British bankers who are at the center of one of the most contentious extradition battles the United Kingdom has witnessed are back in court today.^[1] The so-called “NatWest Trio” were indicted out of Houston on seven Enron-related counts of wire fraud in 2002, and the defendants—David Bermingham, Giles Darby, and Gary Mulgrew—deny the accusations, saying that the US wants the three men only to bolster its case against Enron.^[2]

Today’s extradition hearing is the “second prong” of the three men’s battle against their extradition to the US; in October 2004, a UK magistrate’s court approved their extradition, which was subsequently endorsed by Home Secretary Charles Clarke.^[3] Senior Principle Douglas McNabb testified as an expert witness at that hearing. This time around, the defendants have told the High Court that the magistrate judge “didn’t know that Greenwich NatWest has acknowledged it didn’t lose any money in the alleged fraud,” because the US government failed to disclose the information.^[4] This evidence, it is claimed, “fundamentally undermines” the case against them, since the “victim of the alleged crime does not claim to have been defrauded at all.”^[5]

Today’s hearing follows an earlier hearing this month, in which the three men asked the High Court to review whether British prosecutors “had abused their discretion by failing to investigate the men in Britain.”^[6]

Appeals to the High Court are governed by the Extradition Act of 2003, and the hearing is expected to last three days.^[7] A judgment on the appeal and the judicial review of whether discretion had been abused by British prosecutors is expected sometime soon after the hearing.^[8]

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[1] U.K Enron Bankers Say New Evidence Prevents Their Extradition, Bloomberg, Nov. 28, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Ex-NatWest Bankers Begin Appeal over Enron Case, Reuters, Nov. 28, 2005, available here.
[8] Id.