McNabb in the News (2/3/06) 3

Douglas McNabb, Senior Principal of McNabb Associates, will be a guest on Fox News Saturday night at 10:00 PM ET. He will be on “Big Story Prime Time with Jamie Colby” to discuss the Neil Entwistle double murder investigation out of Massachusetts as it relates to international extradition.

McNabb in the News (2/3/06) 2

Senior Principal Douglas McNabb has been featured in this Czech-language article by the Czech News Agency concerning Viktor Kozeny: Podle obhajoby nelze Koženého do USA vydat, Czech News Agency, Feb. 3, 2006.

Extradition from Canada to the United States—Abandoned

Nearly five years ago, three Russian sailors were arrested in Canada on charges that their vessel had rammed and sunk a Maine fishing boat which killed three fishermen.^[1] The Rockland, Maine-based trawler Starbound was allegedly struck by the Cypriot-flagged tanker MT Virgo 130 miles off Cape Ann, Massachusetts; it was later found at a refinery in Newfoundland where Canadian authorities arrested Captain Vladimir Ivanov and crewmen Mikhail Gerasimenko and Dmitry Bogdanov.^[2]

They faced involuntary manslaughter and negligence charges in the United States, and the US requested the extradition of the men.^[3] However, after spending 18 months in Canadian prison, the Newfoundland Court of Appeal ruled they could no longer be held in Canada, and sent them back to Russia.^[4] “The judge hearing the case said the sailors had suffered as a result of language and cultural barriers in St. John’s and the extended separation from their families.”^[5] The Russian Embassy vowed to return the sailors to Canada if so requested, but late last week the Newfoundland Supreme Court was told that the extradition request had been abandoned.^[6]

Russia claims to be investigating the charges, but it remains unclear, other than the civil suits planned by the families of the drowned sailors, what will happen next.^[7]

The United States could request extradition of the men from Russia, but it could prove to be enormously difficult. That is because there is no extradition treaty with the Russian Federation. One possibility is the multilateral Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. Though the treaty is aimed at acts of terrorism, the language is loose enough to potentially cover the ramming and sinking of a boat. Under article 3(c) of the Convention, it is an offense for any person to “unlawfully and intentionally” destroy a ship or cause damage to a ship. It is true that the Russian sailors are accused of involuntary manslaughter and negligence, which casts doubt on the true applicability, but if it becomes alleged that the ramming was intentional, then the Convention, to which both the United States and Russian are parties, could apply. Article 10 of the treaty creates an obligation to extradite or prosecute the individuals, and article 11 makes it clear that extradition can be made even in the absence of an extradition treaty. Nonetheless, extradition from Russia could still be difficult because Russia does not extradite its own citizens.^[8]

---

[1] David Hench, Sailors Free of Charges of Ramming, Portland Press Herald (via Mainetoday.com), Feb. 3, 2006.
[2] Id.
[3] Extradition of Virgo Sailors Dropped, Associated Press (via Boston Globe), Feb. 2, 2006.
[4] US Drops Bid to Return 3 in Fishing Deaths, Associated Press (via Boston Globe), Feb. 3, 2006.
[5] AP supra note 3.
[6] Id.
[7] Virgo Crew No Longer Wanted in U.S., CBC News, Feb. 2, 2006.
[8] See our post on Yevgeny Adamov, here.

McNabb in the News (2/3/06)

Senior Principal Douglas McNabb is featured in today’s Milford Daily News regarding Neil Entwistle.

"The U.S. cannot seek his extradition until after he has been charged," said McNabb of McNabb Associates. "At this point, he hasn’t been charged, and there’s a presumption of innocence. We do not want to forget about."
…
"They can contact the authorities in England, the United Kingdom could provisionally arrest him," said McNabb. "It’s like a temporary arrest. The U.S. then has about 60 days to file a full-blown petition for extradition."
…
In the past, the U.S. would need to present a prima facie case, which amounts to probable cause, McNabb said. The British government passed a law in 2003 that made it easier for the United States to have someone sent back to the country.

It was designed for terrorism suspects, but mainly has been used for white-collar criminals, McNabb said. The law is not part of the U.S.-UK extradition treaty, and the United States does not have the same law, he said.
…
"If the Home Secretary says ’yes, he should be extradited,’ this gentleman can appeal the decision to the High Court," said McNabb.
…
Even if the High Court rules a suspect should be extradited, it does not end there. McNabb said a suspect could appeal to the House of Lords.

Again, even if the House of Lords decides against a suspect, it still does not end, McNabb said.

"He can appeal it to the European Court of Human Rights (in France)," said McNabb. "They’re about two to three years behind on their dockets."
...
"It could be quite some time before the U.S. can bring him back," McNabb said.^[1]

---

[1] Norman Miller, Extradition Law Could Affect Neil, Milford Daily News, Feb. 3, 2006.

Extradition from Italy to the United States—Joseph Henn

A Catholic priest wanted in Arizona has been approved for extradition by a Rome court.^[1] Joseph Henn is wanted on charges that he allegedly molested “three boys when he worked in a parish in Phoenix diocese in the 1980s.”^[2] He has been wanted since 2003, and he has been living under house arrest at his religious order’s headquarters.^[3]

In November, as the matter was being heard, his lawyer claimed that Mr. Henn would be “killed in prison if he were sent home.”^[4] This argument obviously held little sway with the court, which ordered his extradition.^[5] An appeal is planned, and the final determination belongs to the Italian Minister of Justice.^[6]

The extradition treaty between Italy and the United States contains a dual-criminality component, which means that child molestation must be a crime in both countries that is punishable by more than a year in prison, in order for the person to be extradited.^[7]

---

[1] Lawyer for US Priest Says to Appeal Extradition, Reuters (via Yahoo!), Feb. 2, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Extradition Treaty, Oct. 13, 1983, U.S.-Ital., Art. II, para. 1, S. Treaty Doc. No. 98-20 (1984).

McNabb in the News (2/2/06)

Senior Principal Douglas McNabb will be a guest on Fox News tonight at 10:00 PM ET. He will be on “On the Record with Greta Van Susteren” to discuss International Extradition.

Extradition from Australia and Barbados to the United States—RISCISO

19 alleged members of an “underground piracy group known as ‘RISCISO’” have been indicted in the Federal District Court in Chicago.^[1] One of the alleged members, Sean O’Toole, is living in Perth, Australia. At the beginning of September, we discussed Hew Raymond Griffiths, who is another Australian facing extradition to the United States for alleged criminal copyright violations; it seems the cases are unrelated. Another alleged member of the group, Linda Waldron, is living in Barbados. Extradition will be sought for both Mr. O’Toole, and Ms. Waldron.^[2]

According to US Attorney Patrick Fitzgerald, “Operation Jolly Roger” implicates as many as 60 people.^[3] The members allegedly “tapped into their tightly controlled computer servers loaded with stolen merchandise that would fill 23,000 compact discs and was valued at $6.5 million.”^[4] The merchandise in this instance seems to be software which was initially “sent to servers set up overseas.”^[5] RISCISO, which stands for Rise In Superior Couriering, plus the common file format ISO, allegedly “cracked expiration and encryption codes built into trial software available on the Internet, on computer games, and on first-run movies intended only for reviewers and screeners.”^[6] Prosecutors do not believe that the code-cracking was done for financial profit, but rather only for the “thrill” or for personal use.^[7]

Extradition from Barbados will be conducted under the extradition treaty signed in 1996, which went into effect in 2000. Under its dual-criminality clause, an offense is extraditable if 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.^[8] Obviously, the alleged activity is a crime in the United States, and presumably, it is one in Barbados as well. The second consideration is where the alleged crime took place, and whether Barbadian law has similar extraterritorial applications of its domestic law as the United States. In other words, “[i]f the offense was committed outside of the territory of the Requesting State, extradition shall be granted in accordance with this treaty if the laws in the Requested State provide for punishment of an offense committed outside of its territory in similar circumstances. If the laws in the Requested State do not so provide, the executive authority of the Requested State may, in its discretion, grant extradition provided the requirements of this treaty are met.”^[9]

The same considerations apply to extradition from Australia, which is conducted under the 1974 treaty and the 1990 protocol.

---

[1] Members of Secretive Group Indicted in Piracy Plot, Reuters (via CNN.com), Feb. 1, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Extradition Treaty, Feb. 28, 1996, U.S.-Barb., art. 2, para. 1, S. Treaty Doc. No. 105-20 (2000).
[9] Id. art. 2, para. 4.

International Extradition Updates Continued

Yesterday we updated some of the stories we have been following recently. Today, we update some more.

First, it seems that Viktor Kozeny’s extradition hearing has been delayed again due to the bad health of the Bahamian prosecutor.^[1] Judge Carolita Bethel has rescheduled the hearing for tomorrow.

Next, the Haephratis have been extradited from the UK to Israel.^[2] We discussed them two weeks ago, when it was announced that they had dropped their appeal against being extradited to stand trial for developing Trojan Horse programs. They have been remanded into custody for 10 days by the Tel Aviv Magistrates Court.^[3] There are reports that they have agreed to a plea bargain in exchange for the names of the companies that purchased their software, but they are not confirming those reports.^[4] During their custody, they will be interrogated.^[5]

Next, Ze’ev Rosenstein, who we discussed just over a month ago, is still expected to be extradited to the United States to face drug trafficking charges.^[6] Israel’s Supreme Court President, Aharon Barak rejected Mr. Rosentstein’s “appeal to stand additional trial in Israel for smuggling 1.5 million ecstasy pills.”^[7] In his ruling, Mr. Barak said that an “additional trial is not an additional appeal,” and he noted that this was “the first time an Israeli had been extradited to a foreign country to stand trial for a crime he committed while physically in Israel.”^[8] It is a testament to the expanding jurisdiction of the United States that Israel finds itself in such an interesting situation.

Finally, Rakesh Saxena, who we discussed on December 30, is claiming that he will be tortured if he is extradited to Thailand.^[9] If you recall, Mr. Saxena is a banker who lives in Canada and is accused of causing a massive bank failure in Thailand. According to Mr. Saxena, who is Indian, he “could be killed or at least tossed in a prison cell and locked in leg irons if Canada surrenders him to Thailand.”^[10] Claiming that he would be discriminated against because there is evidence to suggest “that Indians are on the lowest scale of people who live in Thailand,” he argued against extradition.^[11] According to Canada’s Extradition Act, extradition can be refused if the surrender would be unjust or oppressive in regard to all the relevant circumstances or if the request for extradition is made for “the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.”^[12]

---

[1] Court Proceedings on Kozeny’s Extradition Postponed Again, Czech News Agency, Jan. 31, 2006.
[2] Yigal Grayeff, Trojan Horse Inventors Remanded, Jerusalem Post, Jan. 31, 2006.
[3] Id.
[4] Id.
[5] Dan Williams, Israel Holds Couple In Corporate Espionage Case, Reuters, Jan. 31, 2006.
[6] Yuval Azoulay, Ze’ev Rosenstein to be Extradited to U.S. for Drug Smuggling, Ha’aretz, Jan. 31, 2006.
[7] Id.
[8] Id.
[9] Saxena Could Be Killed Or Tortured in Thailand, Court Told, Bangkok Post, Feb. 1, 2006.
[10] Camille Bains, Fugitive Would Be Tortured in Thailand if Canada Extradites Him Says Lawyer, Vancouver Sun, Jan. 30, 2006.
[11] Id.
[12] Extradition Act c. 18 § 44, 1999.

McNabb in the News (1/31/06)

Senior Principal Douglas McNabb is quoted in an LA Times article about a murder mystery that spans the Atlantic Ocean. A young mother and her baby were found shot to death in Massachusetts on January 22, 2006, and investigators are now questioning the husband, who was located in England.^[1]

Douglas McNabb, a Washington, D.C., attorney who specializes in international criminal defense, said Monday that state or U.S. officials could not seek to extradite Entwistle unless he was charged with a crime. McNabb said the extradition process from Britain can be cumbersome. "This could take years," he said.

Over the weekend, the Souza family issued a statement expressing confidence that Massachusetts authorities would "bring to justice those responsible" for the killings.^[2]

---

[1] Elizabeth Mehren, Two Deaths, One Mystery, LA Times, Jan. 31, 2006.
[2] Id.

International Extradition Updates

A few of the international extradition cases we have been following have had some developments.

First, that of Viktor Kozeny, who is facing extradition from the Bahamas to the United States. His extradition hearing was cut short today because “the state attorney had to be transported to hospital shortly after the proceedings started.”^[1] The hearing is scheduled to resume tomorrow.^[2]

On Friday, we mentioned that Colombia arrested 19 people who they claim have ties to terrorists. We pointed out that the United States’ extradition request was related to human smuggling, not terrorism. This is a point that was repeated over the weekend. According to US DOJ spokesman Bryan Sierra, he doesn’t “know what the Colombian information is based on, but if there was any involvement of Islamic terrorist groups, [the US] would be pursuing it to the hilt.”^[3]

On Thursday, we mentioned that Lucia Pinochet planned on seeking political asylum in the United States after she was detained at Dulles Airport in Washington, D.C. Over the weekend, she abandoned that request and returned to Chile.^[4] She has now been freed on US$6000 bail in Chile after having been formally charged with tax fraud.^[5] After arriving in Chile, she told a reporter for Chile’s state television that she was “very badly treated” in the United States, being “forced to wear a prison uniform and handcuffed when taken to appear before an immigration official.”^[6] In her own words, it “was a real nightmare.”^[7]

Finally, the Houston Chronicle has a front-page story on extraditions from Mexico to the United States.^[8] As we have pointed out before, extraditions from Mexico are expected to increase after the Mexico Supreme Court reversed a ban on life prison sentences. The article notes that “[a]t a time when extraditions from Mexico are hitting all-time highs, hundreds of fugitives roam free south of the border.”^[9] It is alleged that, while Mexican police “struggle” to find and arrest them, “corruption and drug money seem to get in the way.”^[10] From 1980 to 1994, only 8 people were extradited from Mexico.^[11] That number rose to 61 for the period ranging from 1995-2000, and to 148 from 2001 to 2005.^[12] However, the article also points out that extradition is not always the process that is used to return suspects to the United States. According to James Schield of the US Marshal’s service, if the Marshals “can show them a fugitive who has fled the U.S. and is a U.S. citizen in Mexico, they will go out and locate him, take him into custody, and have him formally deported from Mexico.”^[13]

---

[1] Bahamian Court to Decide on Kozeny’s Extradition Only on Tuesday, Czech News Agency, Jan. 30, 2006.
[2] Id.
[3] Joshua Goodman, U.S. Disputes Terrorist Links to Bogus Passport Ring, Miami Herald, Jan. 28, 2006.
[4] Pinochet Daughter Freed on Bail, Daily Telegraph (Australia), Jan. 31, 2006.
[5] Id.
[6] Eduardo Gallardo, Pinochet Daughter Ends U.S. Asylum Bid, Washington Post, Jan. 29, 2006.
[7] Id.
[8] James Pinkerton, Fugitives from U.S. Justice Often Find Refuge South of the Border, Houston Chronicle, Jan. 30, 2006.
[9] Id.
[10] Id.
[11] Id. Graphic: Extraditions from Mexico Climb.
[12] Id.
[13] Pinkerton, supra note 8.

McNabb in the News (1/30/06) 2

Senior Principal Douglas McNabb has been interviewed on NPR regarding jury selection for the Enron trial. Jury selection in that case begins today, and Mr. McNabb discussed the voir dire process in federal courts, as compared to jury selection in England and in the 50 States. The interview will be broadcast today and tomorrow throughout the day.

McNabb in the News (1/30/06)

Senior Principal Douglas McNabb is featured in an article about Viktor Kozeny:

If convicted in the US Kozeny faces 20 years in jail and a $5m (€4.1m) fine, after which he may finally have to face justice in the country of his birth.

But most observers agree expecting any payback from Kozeny would be foolhardy. He is already crying poor following three divorces.

What are his chances of pulling a Houdini?

His lawyers aren’t talking, but a leading expert on US extradition law, Douglas McNabb, had this to say: “Since Bush Two, the US has been extremely aggressive about prosecuting crimes that involve violations of US law in foreign countries. I think it’s just a matter of time before they get him back.”^[1]

---

[1] Dinah A. Spritzer, D-Day for the Bouncing Czech, Irish Examiner, Jan. 30, 2006.