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

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

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

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

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

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

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

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

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

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

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.