EXTRADITION AND TRANSNATIONAL DEFENSE NEWS

Americans Abroad Accused of Crimes: Italian Prosecutor Seeks Life Sentence for Knox

2009-11-22T05:50:00.001-08:00

The Italian prosecutor has asked the Italian jury for a conviction and sentence of life. New York Times November 21, 2009. The prosecutors have also argued that she and her co-defendant helped contaminate the crime scene and then falsely accused a third person of the crime.

"Prosecutors claimed that the murder weapon was a 6 ½-inch kitchen knife found at Mr. Sollecito’s house with Ms. Knox’s DNA on the handle and Ms. Kercher’s DNA on the tip.
Defense lawyers for Ms. Knox and Mr. Sollecito claimed that DNA evidence was not strong enough to link the two students to the crime. They argue that Mr. Guede was the sole assailant. Mr. Guede was sentenced last fall to 30 years for murder and sexual assault. His appeal is under way. Ms. Knox has said she spent the night of Ms. Kercher’s murder at Mr. Sollecito’s house, smoking marijuana and watching the movie “Amélie” on his computer. Prosecution witnesses said there was no evidence that the computer was used that night. "

Extradition: Polanski's US Lawyers Issue Statement; French Lawyer Not Authorized to Speak on Behalf of Defendant

2009-11-21T06:05:00.000-08:00

The ABC News reports that the US lawyers for Roman Polanski have issued a statement: French Lawyer is not authorized spokesman for Polanski. November 20, 2009.

" A French attorney for Roman Polanski who said the film director would not return voluntarily to the United States to face child sex charges is not authorized to speak in the case, Polanski's U.S. attorneys said on Friday.

Polanski, 76, is being held in a Swiss prison pending a decision on a U.S. extradition request. He fled the United States in 1978 while awaiting sentencing for having unlawful sex with a 13-year-old girl, and he was arrested in September in Switzerland on a U.S. warrant.

The director's French lawyer, Herve Temime, told Le Figaro newspaper in an interview published on Friday that Polanski would not return voluntarily to the United States. But Los Angeles attorneys Douglas Dalton, Bart Dalton and Chad Hummel said in a statement that Temime's comments were not authorized by Polanski. "The French lawyers do not represent him in the case and do not speak for him about it," the statement said."

Extradition: 11th Circuit Agrees Robbery Not Political Offense; SOL not Expired

2009-11-18T20:10:00.000-08:00

In Pajkanovic v United States November 16, 2009, the 11th. Circuit ruled against the defendant, seeking to prevent his extradition to Bosnia Herzegovenia.

The Appeals court agreed that the defendant had not established that the robbery charge was a political offense, and the fact that the offense was committed after the war, was not helpful to his claim. The court also agreed that the relevant statute of limitations was that of the United States pursuant to the terms of the treaty.

"Here, Pajkanovic offered no evidence to connect his aggravated robbery to a violent political disturbance. As an initial matter, at the extradition hearing, Under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we are bound by cases decided by the former Fifth Circuit before October 1, 1981. Pajkanovic’s brother testified that the war in Bosnia and Herzegovina ended in late 1995, and documents showed that Pajkanovic’s crime was committed in July 1997. Even if Pajkanovic established that hostilities continued after the war, he offered
no evidence to show that his aggravated robbery was incidental to such hostilities.

The decision of the Cantonal Court in Zenica described the robbery, but in no way indicated that it was political in nature. Furthermore, Pajkanovic’s brother testified that he did not know the details about Pajkanovic’s offense or the victim. Therefore, Pajkanovic has shown no error in the magistrate judge’s determination that his offense did not qualify for the political-offense exception to the Treaty. See Treaty, art. VI; Escobedo, 623 F.2d at 1104 (holding that the petitioners were not entitled to a political-offense exception under a treaty with Mexico because they “[did] not contend, and the evidence offered at the extradition hearing [did] not show, that the charges arising out of the alleged attempted kidnapping were committed in the course of and incidental to a violent political disturbance”);

Extradition: Denver Man Maintains Innocence and Argentina has Declined Extradition to Colorado

2009-11-18T15:25:00.000-08:00

The Denver Post.com discusses the case of an American previously charged with murder of his former wife, charges dismissed, who is now living in Argentina, with a new murder charge pending in Colorado. The defendant appears to have been successful in convincing authorities in Argentina that the charges against him are without merit.

"The U.S. Justice Department continues its five-year quest to extradite him in the case in which Denver police say they have "overwhelming" evidence that he killed his wife and staged a suicide scene. Argentine courts have refused, saying they have not received sufficient assurances from Colorado that Sonnenfeld would not be executed for the crime — an allowable exception to the extradition treaty between the nations. The Denver district attorney's office has pledged that Sonnenfeld would not be executed and is unsure what other evidence it can provide. The DA's staff promises to keep pursuing extradition."

Extradition: Bahama Court Dismisses Appeal, Extradition To go Forward for Human Smuggling

2009-11-18T05:12:00.001-08:00

An appeals court has ruled against Henry Pierre, arrested as a fugitive in the Bahamas, furthering the likelihood that Pierre will be returned to the United States, to face charges in federal court of human smuggling. The Bahamas Journal.

"Henry Pierre was challenging Senior Supreme Court Justice Jon Isaacs’ previous ruling, which refused a habeas corpus application. Pierre allegedly helped to load 16 illegal immigrants onto a boat headed to Florida. He was also indicted by a US grand jury for his alleged role in the trafficking scheme. US Border Patrol officers arrested Pierre’s alleged co-conspirators, Demetrius Saunders and Geno Rolle, after they found 16 undocumented immigrants on a beach in St. Lucie County, Florida on March 23, 2006."

Extradition: Magistrate Releases Priest Pending Extradition Hearing

2009-11-16T19:20:00.000-08:00

The federal magistrate considering the extradition of a priest to face child sexual abuse charges in Ireland, has released the accused on conditions. The US Government on behalf of Ireland had previously opposed released; but its position changed at the hearing on November 16, 2009, with the result that the magistrate was persuaded to release Mr. Markey. Southbend Tribune. "In a brief hearing today, the U.S. government reversed its position and agreed not to object to an Irish priest's release from jail on bond, pending the resolution of his extradition proceedings. Francis Markey, 81, was arrested last week at his home on Miller Court in South Bend and is facing possible extradition to Ireland on charges that he raped a teenage boy there in 1968."

Editor's Note: An accused facing extradition abroad will generally need to show "special circumstances" in order to obtain release. Markey is 81 years old.

OffShore Banking: Due to Voluntary Disclosures, Swiss Info to US May be Limited

2009-11-16T04:39:00.000-08:00

The US Ambassador to Switzerland claims that UBS might have to provide only a limited amount of information to the US, as a result of the large number of voluntary disclosures that have been made by account holders through an "amnesty" program. AFP.

"In the case of UBS, we actually got a good compromise, where UBS agreed to share the names of up to 4,450 American citizens who have bank accounts here, but only after an amnesty programme in the United States," Beyer said on World Radio Switzerland.

"That amnesty programme by the way has already turned up more than 9,000 Americans who have come forward voluntarily to talk about their Swiss bank accounts."
"So I guess our hope once we see the numbers is that the actual number of bank records that will be shared will be very very small," added Beyer.

Extraterritorial Jurisdiction: Summons served on Subsidiary sufficient to initiate Prosecution

2009-11-15T13:55:00.000-08:00

The District Court in U.S. v. Chitron Electronics Co. Ltd.--- F.Supp.2d ----, D.Mass.,2009 was asked to consider whether service of summons in a criminal case in Massachusetts to a domestic Massachusetts corporation, was sufficient for purposes of jurisdiction over the parent Chinese corporation. The Massachusetts and Chinese corporations as well as three individuals are accused of violating US Export controls, by filing false reports and evading controls. The original US Department of Justice Press Release reported:

" Three nationals of the People’s Republic of China were arrested and charged Friday in U.S. District Court with conspiring to file, and causing others to file, false export control documents in violation of Executive Order 13222, Export Administration Regulations, and the International Emergency Economic Powers Act. The Complaint charges that from not later than July 9, 2005 and continuing through in or about December 2008, three current officers and employees of Chitron Electronics, Inc. (“CHITRON-US”), a Massachusetts corporation, filed and caused the filing of Shipper’s Export Declarations with the U.S. government which falsely identified the end users and ultimate destination of U.S. origin goods that CHITRON-US shipped overseas.

Editor's note: The trial court's analysis of the jurisdiction issue relied in large part on the factors associated with jurisdiction for purposes of civil litigation.

"The case law discussing the specific issue of personal jurisdiction over foreign corporations in the criminal context is surprisingly sparse and poorly developed. The two cases that are most on point involve the enforcement of grand jury subpoenas issued to foreign corporations. In a case involving efforts by an Independent Counsel to subpoena records of foreign companies that possibly violated United States law by selling arms to Iran and providing assistance to the Nicaraguan contras, the D.C. Circuit rejected the argument that personal jurisdiction over the corporations was achieved simply because the court had personal jurisdiction over the company's representative. In re Sealed Case, 832 F.2d 1268, 1272-73 (D.C.Cir.1987), abrogated on other grounds by Braswell v. United States, 487 U.S. 99 (1988). Rather, it held that the government needed to provide sufficient evidence of personal jurisdiction over the corporations themselves: “A federal court has personal jurisdiction over a corporation or other business concern with respect to its activities or effects within the United States if that corporation has certain ‘minimum contacts' with the United States.” Id. at 1273-74 (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

“In the case of foreign companies that do not regularly do business here, jurisdiction may be founded on conduct abroad that causes injury within the United States.” Id. at 1274. The D.C. Circuit also suggested that the government could establish personal jurisdiction if it shows that the agent “has done business in the United States on behalf of the companies sufficient to give an American court jurisdiction over them.” Id. at 1273 n. 3.

In the second case, also involving enforcement of grand jury subpoenas, the Second Circuit held that the United States has personal jurisdiction over a foreign corporation accused of conspiring to violate tax laws where at least one overt act occurred in the United States and where there was service of the grand jury subpoena upon the corporation's officers within the territorial boundaries of the United States. Matter of Marc Rich & Co., A.G., 707 F.2d 663, 666-68 (2d Cir.1983) (citing Melia v. United States, 667 F.2d 300, 304 (2d Cir.1981)); id. at 667 (“[W]e have subscribed to the ‘modern notion’ that where a person has sufficiently caused adverse consequences within a state, he may be subjected to its judicial jurisdiction so long as he is given adequate notice and an opportunity to be heard.”). See also United States v. Clark, 435 F.3d 1100, 1108 (9th Cir.2006) (holding that, “to comply with the Due Process Clause of the Fifth Amendment, extraterritorial application of federal criminal statutes requires the government to demonstrate a sufficient nexus between the defendant and the United States ‘so that such application would not be arbitrary or fundamentally unfair.’ ”) (quoting United States v. Davis, 905 F.2d 245, 248-49 (9th Cir.1990)).

Under this case law, to establish personal jurisdiction over a foreign corporation charged with a crime, the government has the burden of demonstrating (via the indictment or affidavits) (1) the “effects” necessary to establish personal jurisdiction; and (2) “minimum contacts” between the corporation (or its agent) and the United States.

Pablo Escobar: Son Apologizes to Family of Galan, New Film

2009-11-15T06:11:00.000-08:00

San Francisco Chronicle. "The former Juan Pablo Escobar, who was 16 when his father was shot to death in 1993, is now trading anonymity for what he calls conscience, asking forgiveness for his father's reign of terror in the documentary "Sins of My Father," which opens at film festivals in Argentina on Thursday and Amsterdam on Nov. 19. In a rare telephone interview last week with the Associated Press, he claimed his father's fortune is gone and that he wasn't part of his criminal enterprise. He said he went public with his apology to the sons of two politicians his father ordered assassinated because of the pain his father wrought as a billionaire drug trafficker." Semana.com on the Meeting between the two men, October 20, 2009. See Brief Video of the Encounter between Marroquin and Galan.

Foreign Corrupt Practices Act: Acquitted of FCPA, but Convicted of Public Corruption; 13 Years

2009-11-13T15:14:00.001-08:00

William Jefferson was sentenced today, November 13, 2009, to thirteen years prison. He had been acquitted of a count alleging Foreign Corrupt Practices Act. NOLA.

Americans Abroad Accused of Crimes: Rhode Island Man Sentenced to 25 Years in British Virgin Islands

2009-11-10T15:19:00.001-08:00

The AP reports that there was no direct evidence against David Swain, but relied on expert testimony as to how Mr. Swain's wife might have been attacked by Swain while they were scuba diving. November 10, 2009.

Foreign Corrupt Practices Act: Bourke Sentenced to One Year and One Day

2009-11-10T15:14:00.000-08:00

Update. Bloomberg, November 10, 2009. Bourke sentenced to one year and one day and $1 Million Fine.
******

Juror's Views of the Case Against Bourke, see Courthouse News.

"Although Bourke had read the Fortune article about Kozeny's Czech adventure at the time, he decided to invest anyway in Kozeny's scheme to privatize Azerbaijan's state-run oil industry SOCAR by buying vouchers from the country's citizens - and paying off senior officials, all the way up to then-Azeri President Haydar Aliyev. Throughout the trial, Bourke had maintained that he was just one of the many investors in Kozeny's failed scheme that lost his money when it derailed two years later and said he was ignorant of the bribes. However, jurors found there were too many "red flags" for Bourke not to have known."

Editor's Note: Frederic Bourke was convicted on July 10, 2009. New York Times reports:

"Frederic Bourke, a founder of the handbag maker Dooney & Bourke, was convicted Friday of conspiring to pay bribes to government leaders in Azerbaijan in a 1998 oil deal. The federal jury in Manhattan returned its verdict after a monthlong trial. Jurors found that Mr. Bourke conspired with a Czech expatriate, Viktor Kozeny, to pay bribes to the former president of Azerbaijan, Heydar Aliyev, and other leaders. The verdict is a victory for federal prosecutors as they step up enforcement of the Foreign Corrupt Practices Act, which bars payments to foreign officials. Few criminal cases under the law ever go to trial."

Previously posted:
The trial is underway in US District Court, New York. Co-defendant Czech national Viktor Kozeny is currently living in the Bahamas. The US request for Kozeny's extradition was rejected.

The allegations are that Frederic Bourke conspired with Kozeny and others to bribe government leaders in Azerbaijan in a bid to buy the state oil company. Bourke invested $8 million and brought his friend George Mitchell into the deal. Bourke's former Swiss attorney plead guilty and has testified for the prosecution.

OffShore Banking: Swiss Claims that Bank Secrecy is not Dead

2009-11-10T05:26:00.000-08:00

Wall Street Jounal, November 9, 2009. " When UBS, the Swiss bank, agreed in August to hand over some 4,450 names of U.S. account holders as part of a tax settlement between the Swiss and U.S. authorities, it appeared to sound the death knell for banking secrecy in Switzerland – one of the main selling points for the country's financial institutions.

However, Swiss politicians and local bankers said that the agreement did not mean the U.S. authorities would be given information on all the offshore accounts held by Americans in Switzerland. Instead, information would only be supplied when tax authorities from another country had provable evidence of a tax fraud by an offshore account holder. Swiss foreign minister, Micheline Calmy-Rey, was instrumental in negotiating a settlement between the US and UBS."

Bond and Failure to Extradite: Tennessee Court Rules Against Bond Company

2009-11-09T05:15:00.000-08:00

Can a bond company defend forfeiture on the basis that the State refuses to seek extradition? Apparently not, according to a Tennessee Appeals Court: State of Tennessee v Yussuf. In re Radar Bonding Company, Inc.; No. M2008-01161-CCA-R3-CD. Feb. 11, 2009 Session.Nov. 5, 2009. The Court declined to impose an obligation on the State of Tennessee to seek extradition of the defendant from Sweden, or discharge the bond company. It should be noted that the primary reasons discussed in declining to seek extradition for attempted murder were the time and expenses required in submitting an extradition request.

Film: "Comedy of Power", When a Woman Rattles a Man's World of Fraud

2009-11-08T06:46:00.000-08:00

New York Times. "When a Woman Rattles a Man's World of Fraud. “Comedy of Power” is the name of Claude Chabrol’s latest film to be released in the United States, but the phrase could describe much of this director’s work. Though his films tend to be witty and ironical rather than laugh-out-loud funny, they often concern themselves with the behavior and misbehavior — both intimate and public — of the French ruling classes. Criminality plays a large role in Mr. Chabrol’s view of the world, but rather than moralize, he treats his characters with a wry mixture of sympathy and cynicism. " Editors: *****

Extradition: Rule of Specialty Issue May Arise in Saxena Thai Extradition

2009-11-08T05:54:00.001-08:00

The Rule of Specialty generally protects an accused, from extradition on one charge, but prosecution for others. However, in the age of "superseding indictments" and complex fraud investigations, this is a challenging area of international extradition law.

According to the Thai press, an attorney for accused bank embezzler Rakesh Saxena, who was just recently returned from Canada to Thailand, claim that if additional charges are added for prosecution, this would be in violation of the extradition process. The Nation. One question is whether Saxena would have standing in the Thai court to complain or would the complaint have to come from the Canadian Courts?

"The lawyer, who asked to remain anonymous, dismissed a comment by a public prosecutor, who was behind the successful extradition of Saxena, that prosecutors would file 20 more cases against him by notifying the Canadian government first as they are offences of a similar nature.
The lawyer threatened that Saxena would file complaints in a Thai court and with the Canadian government if he were to face legal action in other cases. He said Thai prosecutors could not seek permission from Canada to press other charges against Saxena.

He said the right of the suspect is protected by the treaty that Siam ratified with the United Kingdom (Canada was a part of the British Empire at the time). He must not be pressed with charges other than what is stated in the request for his extradition. "

International Money Laundering: SB 569 will Require More Transparency in Business Formation

2009-11-06T05:43:00.001-08:00

The written testimony of David S Cohen re SB 569. Senate Committee on Homeland Security and Governmental Affairs“Business Formation and Financial Crime: Finding a Legislative Solution”.

SB 569 "A bill to ensure that persons who form corporations in the United States disclose the beneficial owners of those corporations, in order to prevent wrongdoers from exploiting United States corporations for criminal gain, to assist law enforcement in detecting, preventing, and punishing terrorism, money laundering, and other misconduct involving United States corporations, and for other purposes."

Obtaining Foreign Evidence: US Court's Authority to Require Deposition of American Citizen Living Abroad, in the United States

2009-11-06T05:30:00.000-08:00

The case of S.E.C. v. Sabhlok N.D.Cal., October 30, 2009 might be a good starting point for practitioners to understand the jurisprudential underpinnings of a Court's authority to require an American citizen living abroad, to travel to the United States to provide testimony. The Magistrate in the Sabhlok case, ordered an American living in Hong Kong to testify in the United States in a SEC investigation.

"The Walsh Act, 28 U.S.C. § 1783, was enacted in 1926 in order to compel Americans living abroad to return to the United States to testify at a trial in a criminal case, if the testimony was deemed by the court issuing the subpoena to be of sufficient importance. The Supreme Court upheld the statute shortly thereafter, including the provision for contempt for failure to appear, stating: “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.” Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 76 L.Ed. 375 (1932)The Court further stated: “It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience.”

Extradition: Russian Foreign Minister Pushes for Treaty with US

2009-11-05T04:31:00.000-08:00

On his visit to the United States, Russian Foreign minister urges the United States to enter into an extradition treaty between the two countries. Russian Press.
" Russia has reiterated its proposal to the United States to sign a bilateral extradition agreement, the Russian justice minister said. Although Moscow and Washington agreed in 2007 to draft an agreement on the extradition of crime suspects, further progress on the deal is still pending. "We have reiterated our earlier proposal to the U.S. on the bilateral extradition agreement. In our opinion, it is wrong that countries such as the United States and Russia do not have even a basic normative document on extradition," Alexander Konovalov said after his recent visit to the U.S."

Foreign Trials of US Nationals: 23 Americans Convicted in Italy of Kidnap

2009-11-04T15:49:00.000-08:00

Update: Verdict of Guilty for 23 Americans. New York Times. November 4, 2009. An Italian court has convicted the Americans in abstentia for their role in the kidnap of Nasr, and transport or rendition of Nasr to Egypt, where he claims to have been tortured.

Previous Posts:
Prosecutor Begins Closing Arugment in the CIA Rendition trial in Italy. New York Times September 23, 2009; April 22, 2008 with new link to Mother Jones article, "I was Kidnapped by the CIA". Also, link to article in Congressional Quarterly: The CIA's Odd Man Out." ; Link to the United Nations Convention Against Torture.

Italian news "Nasr, the former head of Milan's main mosque, disappeared from the northern city on February 17, 2003. Prosecutors say he was snatched by a team of CIA operatives with SISMI's help and whisked off to a NATO base in Ramstein, Germany, on board a Gulfstream jet belonging to the Boston Red Sox baseball team. From there, he was taken to Egypt to be interrogated under duress. Nasr, who was under investigation in Italy on suspicion of helping terrorists, was released early last year from an Egyptian jail where he says he was tortured and threatened with rape."

Link to the Council of Europe's report on Extraordinary Rendition.

Extradition: US and Mexico Engage in Talks

2009-11-03T04:20:00.001-08:00

BBC News, November 2, 2009." Mexico's attorney general is meeting his American counterpart in Washington, a day after the US announced a record number of extraditions from Mexico.
Arturo Chavez and US Attorney General Eric Holder are expected to discuss further co-operation in the extradition of suspected criminals to the US. Eleven fugitives were transferred over the Mexican border on Sunday, bringing the total extradited this year to 100. "

Transnational Crime: Former Argentine President and Generals Trial Underway

2009-11-03T03:55:00.001-08:00

New York Times, November 3, 2009. The former President of Argentina is accused of kidnapping and murder.

" A trial began on Monday for Argentina’s last dictator, Reynaldo Bignone, a retired general, as well as for five former generals and two others who are accused of kidnappings and murders that prosecutors say took place in the Campo de Mayo military base.
General Bignone is accused of holding ultimate responsibility for myriad cases of torture, illegal break-ins and deprivations of human rights from 1976 to 1978, before he was appointed president by the military junta in the waning years of the dictatorship.
As president from 1982 to 1983, General Bignone protected the military as Argentina returned to democracy; he granted amnesty to human rights violators and ordered the destruction of documents related to torture and the disappearances of political opponents before he agreed to transfer power to a democratically elected president, Raúl Alfonsín.
Argentina’s courts and Congress later overturned the amnesty, and President Cristina Fernández de Kirchner has made a high priority of prosecuting leaders of the dictatorship. General Bignone was charged in 2003, but the trial was delayed until now. "

Extradition: Accused Submits to Extradition from Malaysia

2009-11-03T03:14:00.000-08:00

The Channelnewsasia Press reports that .....who is facing terrorism charges in the United States, has submitted to extradition. "A Singaporean wanted in the United States on six terrorism-related charges submitted himself on Monday to prison authorities here to await extradition, pending an order by the law minister. District Judge Roy Neighbour ordered Balldev Naidu Ragavan, 47, to be remanded after he ruled there was sufficient evidence for Naidu to answer to the charges he faces in the American courts. "

International Money Laundering: OECD Handbook for Tax Auditors

2009-11-01T04:44:00.000-08:00

This publication Money Laundering Awareness Handbook for Tax Examiners and Tax Auditors, October 2009 is a primer on the mechanics and means to detect money laundering, with a discussion of how money laundering can be carried out through transfers to offshore banks, credit cards as well as international trade.

"In international literature, money laundering through trade is known as ‘Trade Based Money Laundering’. It is seen by various organisations, such as the FATF and the World Customs Organization as a key method to move and/or launder large amounts of money derived from crime. The movement of money can be visible through the payment of expenses and visible or not, by moving money via air transportation, road transportation or by smuggling with goods.
Criminal proceeds often need to be transferred to another country, a criminal transaction must be settled or funds must at some time come back to the criminal. These are reasons for criminals to move capital with the capabilities and constructed legitimacy of international trade. The techniques are discussed hereafter."

Transnational Crime: The Business of Bribery

2009-10-31T08:57:00.000-07:00

Resource of Note, PBS Front Line reports on Montesinos, BAE and more at the Business of Bribery.