Extradition from the United Kingdom to the United States—Ian Norris

As we predicted on Tuesday, the High Court’s decision regarding the NatWest Three spelled trouble for another British executive facing extradition to the US. Ian Norris, the former CEO of “manufacturing giant” Morgan Crucible, “lost the first round of his high court battle against extradition to the United States on charges of price fixing.”^[1] Mr. Norris has been indicted out of the Eastern District of Pennsylvania on charges of conspiracy, antitrust violations, and obstruction of justice, and he has been fighting his extradition from the UK by arguing that “the home secretary’s decision to order his removal under the Extradition Act was ‘unlawful and irrational.’”^[2]

He also argued that the extradition agreements between the US and the UK were “hopelessly lopsided in favour of the US authorities,” but the Home Office argued that extradition assistance between the two countries “is practically equivalent.”^[3] That argument seems a bit stretched, as we have discussed previously, but nonetheless, the High Court ruled that Mr. Norris could be extradited.^[4]

Mr. Norris will challenge the High Court’s ruling on human rights grounds because he has been diagnosed with prostate cancer.^[5]

It may be too late to help the NatWest Three or Mr. Norris, but British MPs across the political spectrum are considering revamping their extradition laws.^[6] “Tory higher education spokesman Boris Johnson plac[ed] an early day motion calling for a strengthening of requirements on US prosecutors,” and “Labour’s Sadiq Khan MP and Lib Dem leadership frontrunner Sir Menzies Campbell” backed the measure.^[7] The group objects to:

• the abolition of a requirement for US prosecutors to set out the evidence against defendants in a British court and a defendant's right to challenge the evidence before extradition is granted.
• the requirement for British prosecutors to set out and defend, before the US courts, evidence relating to their extradition requests.
• the absence of a legal process to determine in which territory prosecutions with multinational elements should most appropriately be pursued. As a result, the British courts may be forced to surrender defendants even if they regard the case against them as a matter for the British courts.^[8]

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[1] Retired Executive Loses US Extradition Appeal, Press Association (via The Guardian), Feb. 24, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Simon Bowers, Room for Improvement, Say MPs, The Guardian, Feb. 22, 2006.
[7] Id.
[8] Id.

Extradition from the Netherlands to the United States—419 Scammers

Perhaps the most legendary of all spam email messages is the “Nigerian” scam. Usually the recipient of the email is told a very sad story about a governmental official who is needing to get large sums of money out of Nigeria, but he needs a bank account number. In exchange for the help, gobs of cash will magically appear in a kind-hearted person’s bank account. The problem, of course, is that there is no deposit of large sums of money.^[1]

The United States is reportedly seeking the extradition of “four Nigerians accused of running 419 scams^[2] in the Netherlands.”^[3] The request follows the “arrest of a gang in Amsterdam and the nearby town of Zaandam earlier this week”^[4] and the conviction of a Nigerian 419er on February 9, which earned him a 376 year prison sentence in Lagos, Nigeria.^[5] The arrest this week involved 12 people and the confiscation of €25,000 in cash, computers and travel documents.^[6] It is estimated that the alleged scammers earned a total of €1.7 million.^[7]

The individuals have been detained on suspicions that they committed fraud.^[8]

The extradition treaty between the United States and the Netherlands was signed in 1980 and, like most modern extradition treaties, it contains a dual-criminality clause.^[9] This means that the Netherlands and the United States must criminalize this type of activity with a punishment of more than a year in prison. In addition, the United States must provide sufficient paperwork that shows that the arrested individuals are those wanted by the US, and then present enough evidence to show probable cause.^[10] The other hurdle the US might have to clear is whether the Netherlands applies its domestic laws extraterritorially. With computer-based crimes, this is always an interesting consideration. The treaty states that “[e]xtradition shall be granted in respect of an extraditable offense committed outside the territory of the Requesting State if” the courts of the Requested State can exercise jurisdiction in similar circumstances.^[11] At first blush, the offense seems to have been committed outside the territory of the United States; the individuals were in the Netherlands, sending emails to the United States. However, since the emails were routed through the United States, and the emails appeared on a computer in the United States, it could be argued that the offense was committed in the United States, and thus the question of similar jurisdiction might not need to be addressed at all.

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[1] See Federal Trade Commission, The “Nigerian” Scam: Costly Compassion, July 2003.
[2] “419” refers to the relevant section of Nigeria’s criminal code. See Nigerians Arrested in Internet Scam, Sydney Morning Herald, Feb. 23, 2006.
[3] Jan Libbenga, US Demands Extradition of “419 Scammers” from Europe, The Register, Feb. 23, 2006.
[4] Id.
[5] Lester Haines, 419er Jailed for 376 Years, The Register, Feb. 14, 2006.
[6] Libbenga, supra note 1.
[7] 12 Nigerians Arrested in Holland for Internet Scam, Feb. 22, 2006.
[8] Id.
[9] Extradition Treaty, Jun. 24, 1980, U.S.-Neth., art. 2, para. 1, S. Treaty Doc. No. 97-7 (1983).
[10] Id. art. 9.
[11] Id. art. 2, para. 3(a).

Extradition from Mexico to the United States—Roberto Bueno Hernández

The first person to be extradited from Mexico to the United States since the Mexican Supreme Court ruled that individuals facing life in prison could be extradited to the United States has been sent from Mexico City to Houston.^[1] Roberto Bueno Hernández was arrested in Mexico in March 2005 on an indictment out of Alabama for drug trafficking.^[2]

Mr. Hernández’s extradition comes at a time when relations between the US and Mexico have become slightly frosty.^[3] Last week, President Vicente Fox hailed the Mexican Supreme Court’s decisions, saying that it might become easier for Mexico to deal with its growing drug trafficking problem if extradition becomes easier.^[4] But those efforts might be hampered, nonetheless, by Mexico’s decision to join the International Criminal Court, which was met by a threat from the Bush Administration “to cut $11.5 million in drug-eradication aid.”^[5] And Mexico is becoming increasingly irked by US attempts to enforce domestic laws extraterritorially; on February 3, “the Treasury Dept. forced a Sheraton Hotel in Mexico City to expel Cubans who were discussing oil drilling in Cuban waters with American oil executives, citing a law that bars U.S. subsidiaries from doing business with the communist island.”^[6] The expulsion outraged Mexican officials.^[7] Mexico also managed to anger the US by not expressing solidarity with the US immediately after 9/11, and by using its temporary seat on the UN Security Council to oppose US efforts to secure a resolution authorizing the invasion of Iraq.^[8]

Despite the heightened rhetoric between the two countries, however, there is some back-channel cooperation between the two countries. Recently we mentioned the seemingly extrajudicial removal of some individuals from Mexico, and the two countries share drug trafficking intelligence.^[9]

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[1] Trafficker Extradited to U.S., El Universal, Feb. 22, 2006.
[2] Id.
[3] See Geri Smith, What Happened to “Los Dos Amigos”?, Bus. Week, Feb. 22, 2006.
[4] El Universal, supra note 1. See also our post on his comments.
[5] Smith, supra note 3.
[6] Id.
[7] Id.
[8] Id.
[9] Id.

McNabb in the News (2-22-06)

Senior Principal Douglas McNabb is mentioned in a Times of London article on the future of the NatWest Trio.

Mr Mulgrew claimed that the remaining appeal options could take between “three months and three years” and said that he and his co-defendants could be forced to stay in Houston’s maximum security federal detention centre for more than a year before the case begins.

His claims are based on research into the case by Douglas McNabb, head of McNabb Associates, the US criminal defence law firm, which has been backed by leading Wall Street lawyers.^[1]

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[1] Tom Bawden et al., NatWest Three Face Four Years Awaiting Trial, The Times (London), Feb. 22, 2006.

Extradition from Britain to the United States—NatWest Trio Loses Appeal

The NatWest Trio have lost their extradition appeal to Britain’s High Court.^[1] According to Lord Justice Laws, the American case facing the NatWest Trio—David Bermingham, Gary Mulgrew, and Giles Darby—was “perfectly properly triable” in the US.^[2] Lord Justice Laws conceded that “the defendants could be prosecuted [in Britain]—and that there would be consequential advantages and disadvantages from the prosecution and defence perspectives.”^[3] Nonetheless, that “does not amount to an exceptional circumstance.”^[4]

Furthermore, Lord Justice Laws—joined by Mr. Justice Ouseley—noted that “there was a significant United States dimension to the case and … it would be unduly simplistic to treat the case as a domestic English affair.”^[5]

The trio had also requested that Britain’s Serious Fraud office review their case; that request was also denied.^[6]

Today’s ruling is certain to create an enormous amount of controversy. Yesterday, we mentioned that the GC100 have expressed their concerns about the ease with which extradition to the US can be secured, and Sir Digby Jones, the head of the CBI, has excoriated the UK a number of times about the seemingly one-way street that comprises the “special relationship” between the UK and the US. Shami Chakrabarti, the director of Liberty, a human rights organization in the UK, has called today’s decision “nothing short of a disgrace,” saying that the “trio were being traded like ‘sacks of parrots.’”^[7] The trio, of course, has harshly criticized the decision; Mr. Bermingham said “I can honestly say for the first time in my life today: I’m ashamed to be British.”^[8]

Clarification: According to the Daily Telegraph, Ms. Chakrabarti said "sack of carrots," not "sack of parrots." Due to traffic, it was difficult to hear her.^[8a]

The judges have certified that the case raises “issues of general public importance,” which is the “first step in seeking leave to appeal to the House of Lords, which must be lodged within 14 days.”^[9]

The decision whether Ian Norris should be extradited to the United States to face antitrust allegations is expected soon, and today’s decision does not bode well for Mr. Norris’s chances of avoiding extradition.

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[1] See Simon Freeman et al., Enron Three Lose Test Case Against Extradition to US, Times of London, Feb. 21, 2006; Bankers Lose Enron Extradition Appeal, Reuters, Feb. 21, 2006; Enron: Bankers Lose Extradition Battle, ITN, Feb. 21, 2006; Ex NatWest Bankers Lose Enron Extradition Appeal, Fin. Times, Feb. 21, 2006; Bankers Lose US Extradition Fight, The Press Association (via Yahoo!), Feb. 21, 2006; British Bankers to be Extradited, Sky News, Feb. 21, 2006; Enron Trio Lose Extradition Fight, BBC News, Feb. 21, 2006.
[2] BBC, supra note 1.
[3] Id.
[4] Id.
[5] Freeman, supra note 1.
[6] Reuters, supra note 1.
[7] Freeman, supra note 1.
[8] Id.
[8a] Sophie Brodie, Business Diary: Sick As a Carrot, Daily Telegraph, Feb. 22, 2006.
[9] Freeman, supra note 1.

Extradition from Britain to the United States—New Controversies

As the British High Court’s decision whether to approve the extradition of the NatWest 3 looms, fresh concerns about the fairness and appropriateness of Britain’s Extradition Act have been voiced by lawyers from “most of Britain’s 100 biggest companies.”^[1] This week, “[r]epresentatives of the CG100, created last year as a powerful group of general counsel from FTSE 100 companies, are to meet government officials amid growing awareness of the threat of extradition faced by directors for alleged offences such as fraud or cartel activity.”^[2]

At the heart of the controversy is the general sense that the extradition agreement, which was ostensibly created to make it easier to send alleged terrorists to the United States, is being used in “more than ’50 per cent’” of the time for alleged white-collar crime suspects; as Mark Harding, the chairman of the GC100, said, “I don’t think anybody expected [that]. We do believe that the current law goes too far in terms of allowing extradition without the establishment of a prima facie case, especially when the whole offence is committed here [in the UK].”^[3]

Assuredly, those concerns are quite valid. Would the same people, however, be voicing the same concerns if more alleged terrorists than CEOs were being shipped to the United States? After all, the presumption of innocence and the needs for due process protection are the same for all individuals. Merely labeling a person with “terrorist” does not, ipso facto, make that person a terrorist. Furthermore, given the relative paucity of federal convictions for alleged terrorist activities,^[4] the entire US-UK extradition framework should be reconsidered, not simply the aspect that applies to white-collar defendants.

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[1] Bob Sherwood et al., Lawyers to Push Extradition Concerns, Financial Times, Feb. 20, 2006.
[2] Id.
[3] Id.
[4] See, e.g., Dan Eggen et al., U.S. Campaign Produces Few Convictions on Terrorism Charges, Wash. Post, Jun. 12, 2005 (of 400 prosecutions, only 39 people “were convicted of crimes related to terrorism or national security”); Federal Judge Drops Detroit Terrorism Charges, Associated Press (via MSNBC.com), Sep. 2, 2004 (charges against 2 men dismissed after federal prosecutors admitted prosecutorial misconduct); Al-Arian’s Second Trial Not Definite Associated Press (via Miami Herald), Feb. 16, 2006 (a retrial for Sami Al-Arian may happen in April, if it happens at all; Mr. Al-Arian was acquitted of 8 terrorism counts and the jury could not come to agreement on the remaining counts in a case where the defense put on no case).