Extradition from Australia to the United States—Charles Hermanowski

The Australian Federal Court has ruled that an American “pay TV boss accused of defrauding the Pentagon” must be extradited to the United States “to face fraud and money-laundering charges.”^[1] Charles Hermanowski is facing 24 federal criminal charges that also include making false claims and tax evasion.^[2]

According to court documents, Mr. Hermanowski “allegedly siphoned more than US$8 million (A$10.8 million) in an elaborate cable-TV racket during his time as chairman of US company Americable.”^[3] The alleged activities occurred in the mid-1990s, and they allegedly involve billing the Defense Department for TV systems that were never installed on a number of military bases; he also allegedly laundered US$40 million into his personal bank accounts by “endorsing fake invoices.”^[4]

Charges were filed against Mr. Hermanowski in 2001, but by that time he had already left the United States; he was arrested in January 2002 while “attempting to flee Australia under a false name.”^[5]

The Federal Court opinion, which “follows an unsuccessful appeal to the Supreme Court in April last year,” noted that the extradition request was deficient in some respects regarding the sufficiency of the evidence presented by the United States, but “Justices Roger Gyles, Richard Conti and Peter Graham found that, on balance, the case against [Mr.] Hermanowski was sufficient to meet extradition requirements.”^[6]

On September 4, 1990, the US and Australia negotiated a protocol which substantially amended the 1974 bilateral extradition treaty. According to the protocol, there are few things that actually must be presented to an Australian court in terms of evidence. The request must include:

• documents, statements, or other types of information which describe the identity and probable location of the person sought;
• a description of the conduct constituting the offence;
a statement of the law describing the essential elements of the offence for which extradition is requested; and
• a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.
• a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;
• a copy of the charging document, if any; and
• a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.^[7]

It remains to be seen whether another appeal is launched against the extradition decision based on the Federal Court approving extradition even as it acknowledges that the presented evidence was in some manner insufficient.

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[1] Cable TV Boss to Face US Fraud Charges, Sydney Morning Herald, Feb. 17, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Protocol Amending the Extradition Treaty, Sep. 4, 1990, U.S.-Austl., art. 7, S. Treaty Doc. No. 102-23 (1992).

Extradition from the United States to Venezuela—Patricia Poleo

The Attorney General of Venezuela has announced that he will “request the extradition from the United States of a Venezuelan journalist suspected of masterminding the death of a top prosecutor.”^[1] The journalist in question is Patricia Poleo, who is believed to be living in the United States, and who is accused of having a role in the killing of Danilo Anderson.^[2]

According to the AP, Ms. Poleo “has been in hiding for roughly four months” and she recently told Globovision that she was living in Florida.^[3] She denies any involvement in the assassination of Mr. Anderson, who was killed in a car bombing; three men have already been convicted, “but prosecutors believe others planned the assassination.”^[4]

Venezuelan officials believe Mr. Anderson’s killing was politically motivated because he aggressively investigated “about 400 opposition leaders and businessmen who supported a 2002 coup that briefly ousted President Hugo Chavez.”^[5]

Relations between Venezuela and the United States are frosty, to put it mildly.

The extradition treaty between the two countries dates back to 1922 and it contains a laundry-list of offenses for which extradition can be had;^[6] murder is among them, as well as attempt to commit murder.^[7] The treaty also forbids extradition for crimes or offense of a political character.^[8]

When we last mentioned Venezuela, it was to discuss Jose Posada Carriles. In Mr. Carriles’s case, an immigration judge ruled that it was likely he would be tortured if he was deported to Venezuela and thus deportation was barred. It will be interesting to see whether similar arguments are made in Ms. Poleo’s case. As we mentioned the other day, there is nothing explicitly barring individuals from the United States on human rights concerns, or fair trial grounds.

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[1] Venezuelan Prosecutor to Request Extradition of Journalist in United States, Associated Press, Feb. 16, 2006. (subscription only)
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Extradition Treaty, Jan. 19, 1922, U.S.-Venez., art. II, 12 Bevans 1128.
[7] Id.
[8] Id. art. III.

Extradition from Britain to the United States—NatWest 3

The long-awaited decision by the British High Court regarding the NatWest 3 is scheduled to be handed down at 9:45 AM (GMT) (4:45 AM EST) on Tuesday, February 21. As we mentioned before, the NatWest 3 are contesting both their extradition to the United States and the UK’s Serious Fraud Office decision not to investigate them. The Court will rule on both issues.

Senior Principal Douglas McNabb was an expert witness at the NatWest 3’s extradition hearing.

Extradition from Britain to Belgium and Spain and the United States—Denied and Approved and Hearing

There are three extradition cases that seem particularly interesting. The first concerns Christopher Colin Hunt, the second concerns Hedi Ben Youseff Boudhiba, and the third involves Gary McKinnon.

Mr. Hunt has seen his extradition to Belgium barred due to lapse of time, and because the documents were invalid.^[1] Justices George Newman and Janet Smith ruled that Mr. Hunt—who is wanted on a Belgian warrant for smuggling cigarettes—could not be extradited because the warrant “did not identify which law he allegedly had violated,” and “years of delay in bringing charges would make prosecution unjust.”^[2] As the Justices noted, Mr. Hunt voluntarily traveled to Antwerp nearly 7 years ago “to be interviewed about alleged laundering of proceeds from cigarette smuggling in the previous two years.”^[3] However, because the extradition request had been delayed for years and there had been “full cooperation,” it was reasonable to infer “that the subject may be lulled into a false sense of security.”^[4] Thus, Mr. Hunt will not be extradited to Belgium. How this will impact his ability to travel to other countries with which Belgium has extradition relations is unclear.

The second extradition case is a bit more high-profile. Mr. Boudhiba was born in Tunisia and he is wanted in Spain because he is “accused of being part of a group that helped the September 11 attackers.”^[5] His alleged assistance to al Qaeda consisted of helping “provide money and false documents.”^[6] Mr. Boudhiba’s case is controversial because “experts say [he] has the mental age of an eight-year-old.”^[7] An argument against extradition was made on mental-health grounds, but Lady Justice Smith and Mr. Justice Newman said that “Spain is a civilized country. The evidence shows that, if extradited, proper examination will be made to ascertain whether he is fit to stand trial. Such examination will also establish whether he is a suicide risk and whether he is in need of psychiatric treatment.”^[8] That said, “[i]t would not be unjust or oppressive to extradite him to Spain.”^[9]

Spain is a Category 1 Territory under the British Extradition Act of 2003. Under Section 11 of that legislation, the and Magistrate Judge “must decide whether the person’s extradition to the category 1 territory is barred by, among other things, reason of double jeopardy, age, likelihood of the death penalty, specialty, or “extraneous considerations.” The extraneous considerations are covered by section 13, and they cover only prejudice based on race, religion, nationality, or political opinions. Section 21, however, allows the Magistrate Judge to decide whether the individual should be extradited on human rights ground under the Human Rights Act of 1998. In June of last year, the Magistrate Judge ruled that Mr. Boudhiba could be extradited.^[10]

Finally, British District Judge Nicholas Evans has announced that Mr. McKinnon—who “is accused of breaking into American defence computer” systems—“will not be extradited to the US if guarantees about his safety cannot be made.”^[11] Addressing the prosecution, Judge Evans said “All you have to do is satisfy the court he is not at risk, … [a]nd if you cannot, then there is a problem.”^[12] The “risk” involved is the potential for Mr. McKinnon to be sent to Guantanamo Bay.

According to the US government, “between February 2001 and March 2002, the 40-year-old computer enthusiast from North London hacked into dozens of US Army, Navy, Air Force, and Department of Defense computers, as well as 16 [NASA] computers.”^[13] While the US government claims that he caused US$700,000 worth of damage by moving and deleting files, he claims he was merely looking for “evidence of a UFO cover-up.”^[14]

During extradition hearings yesterday, it was argued that he “could be tried under severe new American anti-terror laws” and “sent to Guantanamo Bay” because his activities are alleged by the US to be “calculated to influence and affect the US government by intimidation and coercion.”^[15] Arguments against extradition based on Guantanamo Bay are becoming quite common. We have seen them made by Wesam al Delaema (who is in the Netherlands), Haroon Rashid Aswat, Abu Hamza, and now Mr. McKinnon. Judge Evans apparently takes the possibility of Mr. McKinnon’s detention at Guantanamo seriously because he has ordered the US to provide assurances that no such reclassification of Mr. McKinnon’s status will occur.^[16]

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[1] British Court Blocks Extradition of Businessman to Belgium in Cigarette Smuggling Case, Associated Press, Feb. 15, 2006. (subscription only).
[2] Id.
[3] Id.
[4] Id.
[5] Al Qaeda Suspect Extradited to Spain, Reuters, Feb. 15, 2006.
[6] Id.
[7] Terror Suspect to Be Extradited to Spain, The Guardian, Feb. 15, 2006.
[8] Id.
[9] Id.
[10] Id.
[11] Bobbie Johnson, US Guarantees Sought Over Alleged Hacker, The Guardian, Feb. 15, 2006.
[12] Id.
[13] Clark Boyd, Profile: Gary McKinnon, BBC News, Feb. 15, 2006.
[14] Id. We briefly mentioned Mr. McKinnon on our Transnational Crimes Computer Crime webpage.
[15] Military Hacker Back in Court, The Daily Record, Feb. 15, 2006.
[16] Johnson, supra note 11.

International Extradition Updates--Hamdi, Kozeny, and Mexico

A number of the stories we have been following recently have had some interesting developments.

First, we begin with Mohammed Ali Hamadi, who we last discussed when Germany released him from prison and he returned to his native Lebanon. If you recall, Mr. Hamadi was imprisoned in Germany for hijacking TWA Flight 847 in 1985, during the commission of which, a US Navy diver, Robert Stethem, was killed. At the time of his release in late December, there was a question of whether the United States could seek his extradition because there is no extradition treaty between the US and Lebanon. But we also noted that both the US and Lebanon are parties to the Convention for the Suppression of Unlawful Seizure of Aircraft, which has extradition provisions. Now it turns out that the US has indeed “formally asked the Lebanese government to extradite” Mr. Hamadi.^[1]

According to officials, the US ambassador to Lebanon, Jeffrey Feltman, “has asked Lebanese authorities on several occasions to arrest [Mr.] Hamadi and turn him over to the United States for trial.”^[2] The formal request was submitted to Prime Minister Fouad Siniora last week.^[3] Three other men who are allegedly linked to the hijacking—Ali Atwa, Hasan Izz-al-din, and Imad Fayez Mugniyah—are also included in the request, “but it is unclear whether those men are in Lebanon.”^[4] Whether Lebanon agrees to extradite Mr. Hamadi depends on its domestic law addressing extradition and double jeopardy.

The next story that needs updating is that the extradition hearing for Viktor Kozeny is proceeding haltingly. As we have mentioned before, his hearing has been delayed a number of times already, and it has been delayed again. It has been adjourned until March 8 “at the request of Bahamian prosecutor Francis Cumberbatch.”^[5] Unlike the last time there was a delay, the prosecutor is not ill. Instead, Mr. Cumberbatch has “not yet received the documents supporting the U.S. extradition request he wanted to submit as evidence.”^[6]
Finally, in the last story that has had developments, we look at Mexico. As we mentioned before, it is widely expected that Mexico will greatly liberalize its extradition policies vis-à-vis the United States now that the Mexican Supreme Court has made a couple of landmark decisions. Yesterday, Mexican President Vicente Fox announced that “he's confident the country will soon begin extraditing top drug suspects to the United States, thanks to a recent high court ruling easing restrictions on who can be sent north for trial.”^[7] According to Mexican Attorney General Daniel Cabeza de Vaca, “18 major drug lords have been captured since Fox took office in December 2000.” At the top of that list are Benjamin Arellano Felix and Osiel Cardenas, who are wanted on U.S. drug charges.^[8]

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[1] Elise Labott et al., U.S. Seeks Extradition of Accused Killer, CNN.com, Feb. 13, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Kozeny’s Extradition Trial Adjourned, Prague Daily Monitor, Feb. 13, 2006.
[6] Id.
[7] Fox Says Mexico Will Soon Begin Extraditing Drug Suspects to U.S., Associated Press (via Tucson Citizen), Feb. 13, 2006.
[8] Id.

Extradition from Australia to Hungary—Charles Zentai

Australia is receiving unwanted attention recently on allegations that war criminals are living in that country. We’ve discussed Dragan Vasiljkovic quite a bit recently, and his extradition hearings have been delayed as he challenges his current detention.^[1] The extradition case has been adjourned until March 3, while the Australian High Court “deals with legal action by [Mr.] Vasiljkovic.”^[2] He alleges that he is being unlawfully imprisoned, but his three prior convictions (for robbery, for burglary, and for operating an illegal brothel) may make it difficult to secure his release; the court will deal with the habeas corpus action on Wednesday.^[3]

Accusations from an earlier war are the subject of a new extradition controversy in Western Australia, as an 84-year-old Perth man challenges his extradition to Hungary on allegations he committed war crimes during World War II.^[4] Charles Zentai “had been due in Perth Magistrate’s Court today for a hearing on a request for his extradition to Hungary, where he is alleged to have murdered Jewish teenager Peter Balazs in 1944,” but he is challenging that court’s ability to “deal with commonwealth extradition laws.”^[5] As a result, the case has been put off until next month.^[6] In the meantime, Efraim Zuroff, who is the “head of the Simon Wiesenthal Centre in Jerusalem,” has traveled to Perth to meet with Mr. Zentai’s family, hoping to convince him to subject himself to Hungarian jurisdiction.^[7] Mr. Zentai denies the accusations, and his family “said he was too ill to be extradited.”^[8]

The extradition treaty between Australia and Hungary was signed in 1995 and went into force in 1997. It is a modern treaty, containing a dual-criminality clause.^[9] The alleged crimes, of course, took place more than 60 years ago, but that is no bar to extradition. If the crime was an offense in the Requesting State at the time of the acts constituting the offense, and if the crime was an offense in the Requested State at the time of the acts, then extradition is not barred by lapse of time.^[10] Furthermore, most countries do not have a statute of limitations on murder. Extradition cannot be obtained “if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of that person’s … nationality or political opinion or that that person’s position may be prejudiced for any of those reasons.”^[11] However, offenses relating to genocide are not excepted.^[12] Finally, Australia could refuse to extradition the individual if it determines that, after taking into account that nature of the offense and the interests of Hungary, the age, health and other personal circumstances would make extradition incompatible with humanitarian considerations.^[13]

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[1] Alleged War Criminal Extradition Delayed, Sydney Morning Herald, Feb. 10, 2006.
[2] Id.
[3] Id.
[4] Tim Clarke, War Crimes Accused “Should Face Up,” The Australian, Feb. 13, 2006.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Extradition Treaty, Oct. 25, 1995, Austl.-Hung., art. 2, para. 1, 1997 Austl. T.S. 13.
[10] Id. art. 2, para. 5.
[11] Id. art. 3, para. 1(b).
[12] Id. art. 3, para. 1(a)(iii).
[13] Id. art. 3, para. 2(f).

McNabb in the News (2-12-06)

Senior Principal Douglas McNabb has been featured in a Boston Globe article about Interpol.

While the power and utility of such a system seems undeniable, there are concerns about abuse. Douglas McNabb, an attorney with the international criminal defense firm McNabb Associates, questions the wisdom of sending classified information to Lyon. ''Some of the member countries are the very ones you don't want to see it," he says. Depending on the hands into which it falls, information could be as easily used to tip off criminals as to bring them to justice. It's also not at all clear that law enforcement agents in Cuba or Iran have the same understanding regarding standards of evidence-or, for that matter, what constitutes a crime in the first place-as law enforcement agents in the US.^[1]

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[1] Rebecca Ulam Weiner, To Protect and Save the World at 3, Boston Globe, Feb. 12, 2006.