Mutual Legal Assistance and Extradition: New Treaties with Slovenia

July 29, 2009. Remarks of Secretary of State Hillary Clinton.
" And today, we signed the Protocols of Exchange of Instruments of Ratification for the 2005 U.S.-Slovenia Mutual Legal Assistance and Extradition Treaties. That’s why it took so long to sign, because it’s long. And we expect these agreements to enter into force shortly after related agreements between the United States and the European Union take effect.

These agreements between the United States and Slovenia on extradition and mutual legal assistance will give our police and prosecutors state-of-the-art tools to cooperate more effectively and bring criminals to justice on both sides of the Atlantic. They form part of a network of agreements that the United States has reached with countries of the European Union to mutually reinforce our law enforcement obligations. "

Prisoner Treaty Transfer: Laos to the UK

A British national, convicted of drug trafficking in Laos, may be transferred to the UK to serve the remainder of her life sentence, according to the Earthtimes. The defendant was spared the death penalty in Laos because of her pregnancy. A new treaty between the UK and Laos will facilitate the transfer. July 30, 2009.

Extradition: Israel Court Approves Extradition to US for Drug Trafficking

Accused Israeli nationals, with charges pending in the United States, have been ordered extradited to the United States. The defendants may appeal. Jerusalem Post. July 28, 2009.

"The Jerusalem District Court ruled on Tuesday that Yitzhak and Meir Abergil, as well as three of the alleged organized crime family's associates, will be extradited to the US. The two brothers were arrested by police in August 2008 after the FBI charged them with operating and belonging to a criminal organization, threats, extortion, money laundering, drug dealing and other crimes.
According to Yitzhak Abergil's letter of extradition, "Clear evidence shows that Yitzhak Abergil stood at the top of the pyramid of organized crime."
If the decision is implemented, the US could agree to allow the men to serve their sentences in an Israeli jail. "

Transnational Crime and Extradition: Russia Frees two Nationals Detained for Charges in the United States

According to the Washington Post, Russia has released two nationals who had been arrested on charges pending in the United States. July 27, 2009.

" Russia has released a suspected organized crime boss who is wanted by the United States for fraud and racketeering, an Interior Ministry spokeswoman said on Monday. Semion Mogilevich, who the U.S. Federal Bureau of Investigation says created a powerful crime group in Eastern Europe in the 1990s, was arrested in Russia in 2008 and accused of tax evasion at a major cosmetics retailer. Mogilevich and alleged associate Vladimir Nekrasov were released because the terms under which they could be held had expired, said Irina Dudukina, a spokeswoman at the Interior Ministry's Investigative Committee.
The charges "are not of a particularly grave nature so investigators had no particular reason to keep them imprisoned," Dudukina said. "

Transnational Crime: No Place to Hide Says Newsweek

The Long Arm of the Law. "Increasingly, there's no place to hide. " By Denis MacShane
Published Jul 25, 2009 , From the Newsweek issue dated Aug 3, 2009.

"In the new movie Public Enemies, Johnny Depp plays John Dillinger, the 1930s bank robber and killer who gets hunt-ed down and shot by the newly formed FBI. The key to FBI success was to break down the barriers to cross-state criminal-catching that had previously allowed crooks to skip across state borders and thumb their noses at lawmen constrained by interstate rivalries.
Something similar is now happening internationally, as the United States and European countries come to the realization that the globalization of crime means the law and justice systems limited by state borders are no longer sufficient. As yet there is no global J. Edgar Hoover, still less a WBI—a World Bureau of Investigation—hunting down today's post-national criminals. But the barriers to supranational policing and justice are slowly being eroded."

Supranational law enforcement and justice is tricky. Conservative legal theoreticians worry that supranational law impinges on national sovereignty; liberals fear that other nations' legal systems may not be up to scratch. The genuine tensions between universal rules and the hard-won traditions of national law are not easy to resolve. No European country will extradite for a crime that could carry the death penalty to a U.S. state that carries out executions. Abortion may be legal in one country; rape may not be a felony crime in another. Murder is murder, but tax avoidance, financial fraud, and hate crimes are more amorphous, leading to the possibility that individuals and companies will be forced to contend with a perplexing patchwork of regulation to avoid running afoul of any one nation's laws. For instance, the U.S. Constitution protects free speech in a way that British, French, and German laws forbidding race hatred or Holocaust denial would not. British bankers can face charges in the U.S. if they have done business in Cuba—a proposition no European will accept."

More at: Newsweek.com

Editor's Note: And the controversy regarding the case of Gary McKinnon suggests that there are growing concerns regarding the harsh sentencing policies in American courts.

Extradition: No Rule of Specialty Violation at Sentencing

What is the Rule of Specialty and How does it Work?

" This firmly established principle of international law provides that a criminal defendant extradited from one nation to another may be prosecuted only for only those offenses for which the surrendering state agreed to extradite. Thus, when a nation hands over an accused for trial on specified charges, both the surrendering and requesting nation are implicitly agreeing that the accused will not be prosecuted on other, unspecified offenses for which the surrendering nation did not agree to extradite. " Cultural Issues in Criminal Defense, 2d. Ed. (Juris 2007). Chapter 5.
Editor: Generally, the Rule of Specialty limits a court's jurisdiction over a defendant who has been extradited to the United States, based on the terms of the extradition.

In the case of State v Figueroa, Washington Court of Appeals, July 6, 2009, the defendant fled from trial and was convicted in abstentia for rape and child molestation. He was arrested in Mexico and extradited back to the United States. Mexico conditioned the extradition on his not being punished for child molestation because the statute of limitations for that offense had expired pursuant to Mexican law.

The sentencing court in Washington, however, included the conviction for child molestation in the sentencing guideline calculation, and the defendant argued that he was essentially punished in violation of the extradition.

The Washington Court of Appeals, however, concluded that inclusion in the sentencing guideline calculation did not violate the prohibition against prosecution for child molestation and relied on the 9th Circuit case of USA v Lazarevich, ( 147 F3d 1061 9th Cir 1998).

Extradition: UK Member of Parliament "resigns" over frustration with US-UK Extradition Treaty

The Telegraph-UK reports that an MP has resigned over frustration with his colleagues, and efforts to prevent the extradition of a young man who suffers from Asperger's syndrom to the United States. July 25, 2009.

As has previously been reported, the Extradition Treaty of 2003 is considered by some as lacking in due process for those accused of crimes in the United States, to challenge their extradition to the United States. The case of

" A respected Labour MP has announced his resignation in frustration at parliament's failure to block the extradition of hacker Gary McKinnon to the US. Andrew MacKinlay has developed a reputation as one of the most hard-working MPs at Westminster and has admirers on both sides of the house

Andrew MacKinlay is to quit the Commons at the next election after becoming disillusioned with the ability of backbenchers to stand up to Government. Only 10 Labour MPs voted for a review of the extradition treaty under which the Asperger's sufferer is being sought, even though 74 had signed motions in support of his case."

Conducting Business Abroad: China Accuses Four in Australia-Anglo Endeavor with Spying

Update: Wall Street Journal, July 25, 2009. Detained Australian citizen was born in China.
**********************************************************************************

Business men and women are at risk when negotiating or engaging in commercial transactions, as evidenced by the case of the four employees of an Ango-Australian company, detained in China on accusations of spying. According to the New York Times, the parent company has had no contact with their employees since the accusation. The Chinese government has accused the four of obtaining secret government information during negotiations, and there is no further detail as to the nature of the information.

" Stern Hu, Rio Tinto’s top iron ore negotiator with China and an Australian citizen, was detained in Shanghai on Sunday on suspicion of spying, stealing state secrets and causing economic harm to the nation, in a case that has rocked the Chinese steel and iron industry. Three other Chinese employees who had some role in Rio Tinto’s iron ore negotiations with Chinese steel mills have also been detained and accused of violating China’s state secrets law.

Now, several other executives in the iron ore trade in China are also under investigation and at least one Chinese executive has been detained, possibly for passing state secrets to the Rio Tinto employees, according to China’s state-run news media and people familiar with the investigation."

Extradition: UK Businessman Appeals to Supreme Court

Ian Norris will appeal to the UK Supreme Court. Telegraph UK. July 24, 2009.

" Ian Norris, the former chief executive of engineering company Morgan Crucible, could be extradited within months if the hearing goes against him. The treaty has been criticised because while British prosecutors have to provide details of the evidence in a US court if they want to extradite an American, US prosecutors need only detail the charges if they want to take a Briton to the US. "

See prior posts on the Norris case: May 17, 2009. April 9, 2009. January 24, 2008.

Extradition: Israel Arrests 11 for Extraditon to the US Fraud

The Government of Israel is cooperating with US prosecutors and have arrested eleven for extradition to the United States. Jerusalem Post. July 22, 2009. The eleven are accused of defrauding elderly americans who sent thousands of dollars based on false claims they had won the lottery.

Web Resource: FATF Glossary of Banking and Money Laundering Terminology

Financial Action Task Force. Glossary of Terms located on the FATF website.

Extradition: Request by Italy to Allow Defendant to Serve Term is not Condition of Extradition

Update: Cipriani files for Writ, Agreement conditioned on Cipriani serving sentence in Italy at his request. A copy of the Italian extradition order certainly so states. July 22, 2009.
If countries requested to extradite to the United States can't rely on the langauge of such agreements, foreign courts may be reluctant to extradite in the future.

* * * * * *

Extradition from Italy to the United States to stand trial for murder, was not conditioned on the US agreement to allow for service of the sentence in Italy, ruled a Court and reported by the Hartford Courant.

"Cipriani's lawyers had argued that the extradition order that returned Cipriani to the U.S. required that he serve his sentence in Italy."This is not rocket science," defense attorney David Compagnone told the judge. "This is simple. There's an executive order by the Italian government."Assistant State's Attorney Dennis O'Connor, citing diplomatic documents and affidavits from a federal prosecutor who handled the extradition in Italy and a State Department official, argued that no such agreement exists.The U.S. did make concessions to Italian authorities, specifically agreeing not to seek the death penalty, but did not agree to immediately return Cipriani to Italy to serve any sentence, O'Connor told the judge."

Transnational Crime: Mexican Drug Cartels Expand Abroad

The AP reports authorities claims that Mexican drug cartels have representatives in 47 countries. " Mexican drug traffickers are branching out as never before — spreading their tentacles into 47 nations, including the U.S., Guatemala and even Colombia, long the heart of the drug trade in Latin America.

The expansion comes amid a military crackdown in Mexico and the arrests of major Colombian suppliers and poses a new challenge for efforts to stop the flow of drugs into the United States.
In dozens of interviews with officials and experts in seven countries, The Associated Press found that the Mexican mobs increasingly buy directly from the cocaine-producing Andes and have begun using countries as distant as Argentina to obtain the raw material for methamphetamine. Mexican gangsters have been arrested as far away as Malaysia as they seek new markets for cocaine and "meth" supply sources."

Extradition: Second Circuit Limits Review of Evidence, Denial of Writ

The Second Circuit Court of Appeal rejected a defendant's appeal, in an effort to prevent extradition to the Dominican Republic. The defense had offered evidence which raised doubts about the reliability of the Dominican case against the defendant, in support of arguments that probable cause had been obliterated. In re Pena-Bencosme C.A.2 (N.Y.) .July 09, 2009.

"Review of a decision in an extradition hearing by means of a petition for a writ of habeas corpus “is limited and should not be converted into a de novo review of the evidence.” Id. Instead, a court adjudicating such a petition may consider only “whether the [judge conducting the extradition hearing] had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312 (1925); see also Simmons v. Braun, 627 F.2d 635, 637 (2d 17 Cir. 1980); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973). Given the limited nature of this review as well as the underlying requirement that a requesting country establish only probable cause, the existence of evidence contradicting or calling into question the requesting state’s primary evidence ordinarily has no import as it does not vitiate or obliterate probable cause, but rather merely “pose[s] a conflict of credibility” that generally “should properly await trial in [the requesting country].”

The Court also rejected claims that the request did not satisfy the requirement of dual criminality.

Extradition: Netherland Antilles Court Grants Extradition to Georgia, USA

The Courts have authorized the extradition from Dutch St. Maartens to the United States of a defendant charged with two murders in Georgia. His counsel has alleged that he would not be able to obtain a fair trial because he is black. However, the Court of the Dutch Antilles has rejected this claim. AP. According to the press, counsel for the defendant will appeal to the European Court of Human Rights. The authorities in Georgia have agreed not to seek the death penalty.

US-Mexico Border Crime: Surge in Human and Drug Smuggling by Sea

New York Times, July 18, 2009. "As the land border with Mexico tightens with new fencing and technology, the authorities are seeing a sharp spike in the number of people and drugs being moved into the United States by sea off the San Diego coast. Law enforcement authorities in the United States said the shift demonstrated the resolve of smugglers to exploit the vastness of the sea, the difficulty in monitoring it, and the desperation of migrants willing to risk crossing it. “It’s like spillover from a dam,” said Cmdr. Guy Pearce, who oversees the antismuggling effort for the Coast Guard in San Diego.

For generations, people have tried to swim, surf and ride boats, sometimes carrying contraband, into the United States from south of the border. But Commander Pearce and other officials in the Department of Homeland Security say those sporadic efforts have accelerated to unprecedented levels recently — a doubling in the number of illegal immigrants — more than 300 in the last two years — caught on boats or beaches and a sevenfold increase in maritime drug seizures, principally several thousand pounds of marijuana."

Espionage: Chung convicted by Court

July 16 (Reuters) - "A former Boeing engineer was convicted on Thursday of passing space shuttle secrets to the Chinese government in the United States' first economic espionage trial.

A federal judge who heard the 10-day trial in Santa Ana, California, without a jury convicted 73-year-old Dongfan "Greg" Chung of economic espionage and of acting as an agent for the People's Republic of China." Mr. Chung has been an agent of the People's Republic of China for over 30 years," U.S. District Judge Cormac Carney said in a 31-page written verdict."The trust Boeing placed in Mr. Chung to safeguard its proprietary and trade secret information obviously meant very little to Mr. Chung," Carney wrote. "He cast it aside to serve the PRC, which he proudly proclaimed to be his 'motherland.' The court must now hold Mr. Chung accountable for his crimes." Mr. Chung's charges include violation of violation of 18 USC 951. United States District Court, C.D. California, Southern Division. United States v Chung. No. SACR08-00024-CJC. July 16, 2009.

Border Searches: 11th Circuit Upholds Detention of Pregnant Woman for Drug Search

July 15, 2009. The Eleventh Circuit upheld the dismissal of a federal civil rights action in the case of Denson v USA, based on the search of a pregnant woman arriving from Jamaica, who was also subjected to monitored bowel movements.
* * * *

More on Airport Border Searches:

Editor's note: For additional information on CBP policy re lap top searches, see CBP Policy Statement July 16, 2008.



A search by customs officers at an American airport, does not require reasonable suspicion, according to the Ninth Circuit in USA v Arnold.

"The Supreme Court has stated that: The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry. Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979)......... Courts have long held that searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment. Searches of the following specific items have been upheld without particularized suspicion: (1) the contents of a traveler’s briefcase and luggage, ....... In any event, the district court’s holding that particularized suspicion is required to search a laptop, based on cases involving the search of the person, was erroneous....... Therefore, we are satisfied that reasonable suspicion is
not needed for customs officials to search a laptop or other personal electronic storage devices at the border. "

Foreign Corrupt Practices Act: Trial of William Jefferson Underway

Update: Government facing an uphill battle to convict Jefferson? July 11, 2009. NOLA.com . The Jefferson trial is one of the first trials including a Foreign Corrupt Practices Act charge. NOLA.com reports on the trial. July 12, 2009.

Editor's Note: It appears that the defense might not have prevailed in their Rule 15 request....there is no reference to any deposition testimony of Abubakar?

There significant due process issues in the defense of a Foreign Corrupt Practices Act case, unless the Court is willing to make sure that the defense has the opportunity to present its defense.

While it is agreed that an American court does not have authority to subpoena a witness from outside the United States, at what point does a defendant have the basis to seek dismissal of a charge if no reasonable alternative is available? And what role will Mutual Legal Assistance treaties provide to defendants to secure witness testimony?


****************************************************************************
Previously posted. Wall Street Journal. June 17, 2009
* * * *
Previously posted: A trial court judge in the E.D. Virginia, has not yet ruled whether Rule 15 depositions should be ordered in the case against William Jefferson, in spite of opposition by the government. The Order of January 23, 2009 is useful to practitioners, in that it reviews defendants efforts to obtain foreign evidence by seeking Rule 15 depositions, and by use of a mutual legal assistance treaty (MLAT) with Nigeria and letters rogatory.

"A sixteen-count indictment (the “Indictment”) charges William J. Jefferson, a former member of the United States House of Representatives, with a variety of crimes including bribery, conspiracy, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. Among defendant's many pretrial motions is a request, pursuant to Rule 15(a), Fed.R.Crim.P., for an order permitting the depositions of Jennifer Douglas Abubakar, Atiku Abubakar, and Suleiman Yahyah-three individuals currently located in the Federal Republic of Nigeria (“Nigeria”) whose testimony he believes will be exculpatory on two charged crimes: (i) the charge, contained in count 1 of the Indictment, that he conspired to violate the Foreign Corrupt Practice Act (“FCPA”) in violation of 18 U.S.C. § 371; and (ii) the charge, contained in count 11 of the Indictment, that he violated the FCPA, specifically 15 U.S.C. § 78dd-2(a). In addition, since Atiku Abubakar and Suleiman Yahyah will not consent to being deposed, either in the United States or in Nigeria, defendant seeks either (i) an order requiring the government to invoke the Mutual Legal Assistance (“MLA”) Treaty between the United States and Nigeria to secure the depositions in Nigeria or (ii) the issuance of a letter rogatory to achieve the same result. For the reasons that follow, defendant's motion may not be granted at this time but must, for a limited period of time, await receipt of responses to a preliminary letter rogatory that will issue to the appropriate judicial authority in Nigeria requesting that Atiku Abubakar and Suleiman Yahyah be examined by written interrogatories regarding, among other things, their willingness to waive their Fifth Amendment rights and be fully deposed."

"At this point, defendant has not adequately established that exceptional circumstances exist to warrant deposing Mr. Abubakar and Mr. Yahyah, and so letters rogatory should not issue requesting Nigerian judicial officials' assistance in obtaining their depositions. Although defendant has adequately established that these witnesses would be unavailable to testify at trial and are likely to provide material testimony in a deposition in the event they waive the Fifth Amendment, defendant was unable to provide any assurance that the witnesses would not invoke the Fifth Amendment and therefore has not shown that they will provide material testimony.

Yet, rather than denying defendant's motion for authorization to take the depositions of Mr. Abubakar and Mr. Yahyah and his request for letters rogatory to secure the depositions, the motion is construed as including a request for judicial assistance in determining whether these witnesses would invoke the Fifth Amendment, and that lesser included motion is granted. Accordingly, a letter rogatory will issue requesting the appropriate Nigerian judicial authority to examine Mr. Abubakar and Mr. Yahyah by written interrogatories regarding their willingness to waive their Fifth Amendment rights and answer questions fully in a later deposition.

Given that the prospective witnesses need to be examined regarding this critical issue, it is also appropriate to have the witnesses answer whether, at defendant's expense, they would be willing to come to the United States and testify at defendant's trial. The letter rogatory will be sent directly to the Supreme Court of Nigeria and the Federal High Court of Nigeria and will also be sent to the United States Department of State for transmittal to the appropriate Nigerian judicial authority. Sixty days will be allotted to complete this process, after which defendant's request for depositions will be examined in light of the responses received, if any. If no responses are received, the available information does not warrant authorizing Rule 15 depositions.

Transnational Crime: DOJ Statement to Congress on Mexican Drug Crime Investigations

On July 9, 2009, the Department of Justice Lanny Breuer made a statement to Congress on Mexican drug cartels and United States law enforcement response. "The Rise of Mexican Drug Cartels and U.S. National Security".

"July 9, 2009, I want to share with you the Department’s strategy to systematically dismantle the Mexican drug cartels, which currently threaten the national security of our Mexican neighbors, pose an organized crime threat to the United States, and are responsible for the scourge of illicit drugs and accompanying violence in both countries. Let me begin by emphasizing the priority that this issue commands at the highest level of the Department’s leadership, including the Attorney General himself. Most recently, on June 5th, in Albuquerque, New Mexico, Attorney General Holder, Department of Homeland Security (DHS) Secretary Napolitano, and Office of National Drug Control Policy (ONDCP) Director Kerlikowske released President Obama’s National Southwest Border Counternarcotics Strategy (Strategy), designed to stem the flow of illegal drugs and their illicit proceeds across the Southwest Border and to reduce associated crime and violence in the region. "

Extradition: White collar crime extradition request to Fiji

A Fiji-born American is pending extradition to the United States to face charges of money laundering, fraud, tax evasion and bankruptcy fraud, according to the Fiji Times . The charges are pending in a Nevada state court. Because Fiji only became a republic in 1987, treaty application and dual criminality issues are likely to be raised. The United States government has also sought Fiji mutual legal assistance in seizing properties of the defendant.

Geneva Convention: Noriega Petition's the United States Supreme Court

Update: Noriega has now petitioned the United States Supreme Court. July 9, 2009.
* * * *

The Eleventh Circuit rejected Manuel Noriega's claim that the United States was required to return Noriega to Panama at the conclusion of his sentence. Noriega has been certified for extradition to France.


Noriega v Pastrana, April 8, 2009, "Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or “Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention.

We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention. "

See Editor's interview of Jon May regarding the issues in the Noriega case.

Foreign Evidence and Brady: USA v Fernandez

One of our favorite cases is a case from the Eleventh Circuit, USA v Jose Fernandez, 136 F3d 1434 (11th. Cir. 1998). The defendant claimed that the Government had failed to disclose exculpatory evidence about the CIA's possible involvement in criminal activity related to the offense conduct alleged. The trial court denied the defendant's motion for new trial, and the Appellate court remanded for an evidentiary hearing.

"The government responds that Fernandez has concocted a far-fetched, imaginative theory to justify a retrial. It is worth noting, however, that the government does not deny the essential veracity of these news reports which are, by themselves, extraordinary and troubling. Although the government presented a formidable case against Fernandez at trial, it was based almost exclusively on the testimony of co-conspirators. While the uncorroborated testimony of co-conspirators can be sufficient to support a conviction, see United States v. Broadwell, 870 F.2d 594, 601 (11th Cir. 1989), our inquiry at this stage is whether evidence of the CIA’s possible link to the very drug shipments at issue in this case either reasonably might have affected the outcome of the proceeding or, in the alternative, would likely produce a different result if the case were retried. In our view, the district court too easily brushed aside the possible impact that these rather sensational allegations might have had on Fernandez’ case. Fernandez tried to establish that, due to the overall corruption in the VNG and possibly the DEA, other possible “tipsters” existed, but his case was vulnerable -- if not thoroughly implausible -- without the various bits and pieces of information needed to create a coherent alternate theory of the case.

Much of the information that Fernandez did obtain during the trial came from news reports that were never officially corroborated by the government; conversations regarding the veracity and potential implications of these news reports, moreover, consistently were held outside the presence of both the defendant and his attorney. At this stage, it is impossible to discern whether the addition of evidence of a possible CIA-link to this case would have completed the puzzle and thereby created for the jury reasonable doubt or whether, as the district court determined, the evidence was merely cumulative. In light of the fact that the government’s case against Fernandez was based almost exclusively on the testimony of co-defendants, however, and because the allegations potentially implicating the CIA are responsive directly to the defense that Fernandez attempted to present, we conclude that these allegations are, at the very least, significant enough to permi Fernandez to present his case at a hearing."

Extradition: Agreement to Extradite was not Pursuant to Treaty says 11th Circuit

The Eleventh Circuit ruled that the defendant Valencia Trujillo was not brought to the United States pursuant to a United States-Colombia extradition treaty, but rather an agreement with the United States. The Court ruled that the defendant did not have standing to claim any violations of the treaty. USA v Valencia-Trujillo, July 8, 2009.


The Court also rejected a claim that the defendant was entitled to a hearing on whether false statements had been made in an affidavit in support of the extradition of the defendant to Colombian authorities, relying on USA v Alvarez-Machain.

"The most fundamental reason is that a criminal defendant does not have the right to challenge how he came to be within the jurisdiction of the prosecuting country. In United States v. Alvarez-Machain, the Supreme Court held that the United States had jurisdiction to try a Mexican national even though its agents had forcibly abducted him and hauled him to this country without Mexico’s consent, at least where there was no treaty provision specifically prohibiting the abduction. 504 U.S. 655, 669–70, 112 S. Ct. 2188, 2196–97 (1992). It necessarily follows from Alvarez-Machain that the United States does not lose the right to prosecute a foreign citizen it obtains by the lesser misconduct of an agent misrepresenting or omitting material facts in the affidavit used to secure extradition."

Extradition: German Federal Court Rejects Claim of Demjanjuk; No Standing to Complain

The Federal Court in Germany will not consider a claim that he was brought to Germany outside the extradition process. Dejmanjuk had been deported from the United States. Bloomberg, July 8, 2009.

“The complainant overlooks that under an international law treaty only the state can claim rights, not an individual person,” the court said. “Demjanjuk is only summarily criticizing the U.S. authorities’, whose acts are those of a foreign nation that this court cannot review.”
By circumventing the extradition treaty, Germany denied Demjanjuk a way to demonstrate he had already been tried and acquitted for the alleged crimes in Israel, his lawyer Ulrich Busch said in a telephone interview. Demjanjuk will appeal the ruling to the European Court of Human Rights in Strasbourg, France, he said. "

Internet Resource of Note: Treaties in Force 2009

"Treaties in Force is prepared by the Department of State for the purpose of providing information on treaties and other international agreements to which the United States has become a party and which are carried on the records of the Department of State as being in force as of its stated publication date, January 1, 2009. With respect to treaties and agreements in force as of January 1, 2009, information regarding status is up to date as of the date indicated as authoritative.

Treaties in Force is arranged in two sections. Section 1 includes bilateral treaties and other international agreements listed by country or other international entity with subject headings under each entry. Arrangements with territorial possessions of a country appear at the end of the entry for that country. In some cases, treaties and international agreements applicable to a territory prior to its independence are included in the entry for that country on the basis of its assumption of treaty obligations upon becoming independent, as noted at the beginning of the entry for that country. For convenience, some treaties and agreements concluded with countries whose name or statehood status has changed continue to be listed under the name in use at the time the agreement was concluded, if the title of the treaty or agreement has not been formally amended.

Section 2 lists multilateral treaties and other international agreements to which the United States is a party, arranged by subject. The depositary is the authoritative source for a current list of parties and information on other matters concerning the status of the agreement, and status information often changes. Information is provided on the depositary for the agreement in question, and contact information, including an Internet site is provided for the depositary where available.
Scope
Treaties in Force uses the term “treaty” in the generic sense as defined in the Vienna Convention on the Law of Treaties, that is, an international agreement “governed by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.” The term “treaty” as a matter of U.S. constitutional law denotes international agreements made by the President with the advice and consent of the Senate in accordance with Article II, section 2 of the Constitution of the United States. In addition to such “treaties”, this publication covers international agreements in force that have been concluded by the Executive (a) pursuant to or in accordance with existing legislation or a prior treaty; (b) subject to congressional approval or implementation, and/or (c) under and in accordance with the President’s constitutional powers.

Treaties in Force includes those treaties and other international agreements entered into by the United States which, as of the specified date, had not expired by their own terms, been denounced by the parties, replaced or superseded by other agreements, or otherwise definitely terminated. Certain agreements, particularly those concerned with World War II and the immediate postwar period, which contain continuing provisions or which have not been clearly terminated in their entirety are included even though operations under the agreements may have ceased. The absence of a listing for a particular agreement should not be regarded as a
determination that it is not in force."

Foreign Corrupt Practices Act: Siemens Settles with World Bank

The Wall Street Journal, July 2, 2009, discusses a recent settlement by Siemens with the World Bank, and reviews other settlements, which have been negotiated.

"Though Siemens still faces investigations in several other countries, the World Bank agreement is a major milestone in resolving the bribery scandal. In December, the company agreed to pay $800 million in fines -- the largest penalty ever imposed under the U.S. Foreign Corrupt Practices Act -- to end litigation claims by the U.S. Justice Department and the Securities and Exchange Commission.

It has also agreed to pay €596 million, or $839.4 million, to German authorities, including a €201 million fine levied by a Munich court in 2007. Despite the record settlements, Siemens has managed to avoid much larger sanctions by cooperating with various officials. A Justice Department filing in December said the agency would have sought much larger fines had it not been for the "extraordinary steps" taken by Siemens to cooperate with authorities and beef up its compliance procedures."

Interpol: Statement regarding Arrest Warrant for Honduran President Zelaya

July 3, 2009. INTERPOL General Secretariat Headquarters in Lyon, France has not received any request to issue its Red Notice (an international wanted person’s notice) for the arrest of the President of Honduras, Manuel Zelaya. INTERPOL’s jurisprudence based on international law prevents it from issuing a Red Notice for the arrest of any President, Head of State or Government unless it has been requested to do so by an international tribunal. Any such request would have to be reviewed by INTERPOL’s Office of Legal Affairs to ensure that it is in compliance with the organization’s constitution and rules.

Extradition: Denmark Supreme Court to Consider Extradition to US

The Copenhagen Post claims that no Dane has been extradited to a country outside the European Union. July 2, 2009. The case involves a Danish national who had returned to Denmark prior to being charged with trafficking in ecstasy in the State of Florida. It appears that Denmark has conditioned extradition to the US with terms that nearly all of the defendant's sentence will be served in Denmark.

Transnational Crime: 2009 Report on Human Trafficking

The US Department of State Report on Human Trafficking Worldwide can be found here.

"The ninth annual Trafficking in Persons Report sheds light on the faces of modern-day slavery and on new facets of this global problem. The human trafficking phenomenon affects virtually every country, including the United States. In acknowledging America’s own struggle with modern-day slavery and slavery-related practices, we offer partnership. We call on every government to join us in working to build consensus and leverage resources to eliminate all forms of human trafficking."--Secretary Clinton, June 16, 2009