US cites United Nations treaty in Megaupload case

February 13, 2012

Computer World on February 13, 2012 released the following:

“Judge in bail hearing questions whether Dotcom extradition is lawful

BY MICHAEL FOREMAN

The United States government will be relying on a United Nations treaty aimed at combating international organised crime as the legal basis of its extradition to the US of Megaupload founder Kim Dotcom and other co-accused.

While the extradition hearing is scheduled to take place on February 22, some of the legal arguments that will be made at that hearing were foreshadowed at a bail-refusal appeal heard at Auckland High Court on February 3.

During the bail appeal, Dotcom’s lawyer Paul Davison QC, said the US was seeking to have Dotcom and other employees of Megaupload extradited in relation to charges of conspiracy to commit racketeering, money laundering and copyright infringement.

At this point the judge, Justice Raynor Asher interrupted Davison, asking him: “These are extradition offences? I assume you have satisfied yourself on that?”

Davison replied that criminal breach of copyright was not a scheduled offence [under New Zealand’s extradition treaty with the US]. The racketeering charge was said to have a similarity with a scheduled offence however “everything is derivative” from the copyright infringement charge.

“The funds which were derived from the business activity and the involvement of a group of people around the business activity is the basis of the allegation that this was racketeering … the movement of business proceeds and funds then becomes an allegation of money laundering, but the whole thing is pinned back to the existence of a criminal breach of copyright.

“I am not able to advance a position at this stage which would be as strong as to say that there is no strength to the US government’s case. But suffice to say that there is a substantial challenge to it, and it’s not at all clear that this is an extraditable situation.”

Asked whether he had discussed these matters with Crown prosecutor Anne Toohey, Davison said he had been waiting for ten or 12 days for the prosecution to respond to his request for documents.

“I have been frustrated by being unable to get access to a range of documents that underpin the steps that were taken to issue the provisional [arrest] warrant.”

“I have been requesting the Crown to provide me with the requisite documents, I have been told that the police hold the requisite documents and the police will respond.”

Davison said that the legal basis of the extradition request “may give rise to another proceeding”.

“It is a fundamental matter, it’s not being overlooked, and it is likely to be litigated,” he said.

Fergus Sinclair, a lawyer with the Crown Law Office who appeared as co-counsel with Toohey on behalf of the United States, said that while it was true no copyright offences were named in the extradition treaty, certain crimes where they involved trans-national organised crime, were subject to section 101b of the Extradition Act.

Under this section any offence which was punishable by a prison sentence of more than four years was deemed to be extraditable, and under the New Zealand Copyright Act the distribution of an infringing work could be punished by up to five years in prison.

Sinclair cited the United Nations Convention against Transnational Organised Crime (TOC), which was passed by a UN general assembly resolution in 2000, as the basis of invoking the organised crime provisions of the Extradition Act.

Under the terms of TOC Sinclair said an “organised criminal group” had to consist of a structured group of three or more persons acting in concert with the aim of committing serious crime.

He said there were seven defendants in the Megaupload case, and that according to US grand jury indictment of January 5 members of the Megaupload conspiracy engaged in criminal copyright infringement and money laundering on a massive scale with estimated harm to copyright holders in excess of US$500 million.

Since the bail appeal hearing, several legal commentators have expressed the view that the Megaupload extradition case could be appealed to the New Zealand Supreme Court.

IT lawyer Rick Shera said that Davison’s submissions reinforced his opinion that the extradition case would be complicated.

“My view has always been that there’s a clear issue as to whether the extradition treaty is the end of the story or whether section 101b of the Extradition Act would be involved. Whatever happens you still go back to the [New Zealand] Copyright Act where differences between the NZ and US legislation may become significant.

“I would expect that after the first or second round, one or other of the parties will appeal.

“There hasn’t been a case like this in New Zealand before and, as far as you can you look at it from a general perspective and considering what is at stake, you would want it to be heard by the Supreme Court.””

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Leave a Comment » | international extradition, International Extradition Attorneys - McNabb Associates, Extradition | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Megaupload founder faces lengthy extradition battle

January 25, 2012

Thomson Reuters on January 25, 2012 released the following:

Reporting by Gyles Beckford and Rebecca Hamilton

“Jan 25 (Reuters) – Efforts by the United States to extradite the mastermind of an alleged Internet piracy scheme from New Zealand to face copyright infringement and money laundering charges are likely to be long and complex.

Kim Dotcom, a German national also known as Kim Schmitz, will be held in custody in New Zealand until Feb. 22 ahead of a hearing of a U.S. extradition application.

U.S. authorities claim Dotcom’s file-sharing site, Megaupload.com, has netted $175 million since 2005 by copying and distributing music, movies and other copyrighted content without authorization. Dotcom’s lawyers say the company simply offered online storage and that he will fight extradition.

“It could take some considerable time to get through the whole thing,” said senior New Zealand lawyer Grant Illingworth, adding there were rights of appeal and procedural review to both sides.

Dotcom, 38, and three others, were arrested on Friday after a police raid at his rented country estate, reputedly New Zealand’s most expensive home, at the request of the U.S. Federal Bureau of Investigation.

Under New Zealand’s extradition law the prosecution must show there is enough evidence that would substantiate charges against Dotcom and the others accused of breaching local copyright laws.

“What the judge has to do is decide whether there is a prima facie case that would justify the person being put on trial if the offence had occurred in New Zealand,” Illingworth said.

“If the evidence doesn’t make out, what under New Zealand law amounts to a prima facie case, then the person walks away.”

A 1970 extradition treaty between the United States and New Zealand gives the U.S. 45 days from the time of Dotcom’s arrest to request extradition. The New Zealand Extradition Act, passed in 1999, gives the United States preferential status to access a streamlined process for making its request.

The judge who refused Dotcom bail said he could not assess whether the United States had a strong enough case against Dotcom, nor whether he had a good defense.

“All I can say is that there appears to be an arguable defense, at least in respect of the breach of copyright charges,” Judge David McNaughton wrote in his judgement.

CIVIL MATTER

Copyright infringement and illegal file sharing are normally civil matters in New Zealand, but there is a provision for criminal charges and a maximum 5-year jail term for serious breaches.

Rick Shea, a partner at Lowndes Jordan in Auckland, said there were some differences between New Zealand and U.S. copyright law, in terms of knowledge, that could be an issue.

Douglas McNabb, a U.S. lawyer who specializes in extradition defense, said extraditions to the United States have to meet probable cause – the same standard that is required for making arrests in the United States.

Although the extradition hearing is not a test of guilt or innocence, McNabb said Dotcom’s lawyers may argue they should be allowed a limited discovery process to show that probable cause has not been met.

Prime Minister John Key said the issues raised were serious and New Zealand would co-operate with the U.S. authorities.

“This is the largest, most significant case in Internet piracy so New Zealand is certainly going to work with the United States authorities to allow them to extradite Kim Dotcom,” he said on TV3.

According to Shea, New Zealand has never had an extradition proceeding involving copyright law. “I wouldn’t expect this to be sorted out quickly,” he said.

AGGRESSIVE CHARGES

Anthony Falzone, Director for Copyright and Fair Use at Stanford Law School’s Center for Internet and Society, said it was too early to comment on the strength of the case, but questioned whether some of the allegations in the indictment would actually push Megaupload outside the safe harbor provisions of the Digital Millennium Copyright Act.

The indictment “pushes some pretty aggressive theories”, Falzone said.

The most recent Supreme Court case to deal with similar issues was in 2005. In MGM v. Grokster, the U.S. court highlighted the importance of intent in determining if an Internet firm was liable for its users infringing copyright.

“A lot of the Megaupload case may also rise and fall on the question of intent,” said Falzone.

With MGM, the court found the intent of the Internet company from the beginning was to build a tool to facilitate illegal sharing.

“Maybe that’s what the Feds (FBI) think they have here, too,” said Falzone.

The case is USA v. Kim DotCom et al, U.S. District Court, Eastern District of Virginia, no. 1:12CR3.”

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and New Zealand here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Leave a Comment » | Extradition, international extradition, International Extradition Attorneys - McNabb Associates | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Canada told to prosecute, not extradite alleged war criminal

November 29, 2011

The Canadian Press on November 28, 2011 released the following:

“CALGARY — Ramiro Osorio Cristales says he was only five when he witnessed Guatemalan soldiers butcher almost every man, woman and child in the village of Dos Erres during the country’s bloody civil war.

“They took my father and my older brother to the school and my mother and younger brothers to the church,” Cristales recalled Monday through tears. “They were crying. Most of the people was praying.

“The next morning they started massacring the men and young kids from the school. When they finished with the men they started with the women from the church.”

Thirty years later and Cristales is now living in Canada.

On the surface he seems fine, but he says the emotional scars are still there. And his anger at the man accused of commanding the military unit that surrounded Dos Erres in December 1982.

Jorge Vinicio Orantes Sosa, 53, who holds both Canadian and American citizenship, remains in custody in Calgary as he appeals his extradition back to the United States on immigration charges.

He is also wanted by Guatemalan authorities for allegedly participating in attacks on the village. A total of 251 men, women and children were killed during the massacre. The military unit believed the village was under rebel control and that its inhabitants were responsible for an ambush on soldiers and the theft of 20 rifles. No weapons were found.

Sosa denies the allegations.

Many of the villagers were killed with sledgehammers. The women and girls were raped and their bodies were thrown down the village well.

“At that time, I didn’t know what rape means,” Cristales said. “The little kids were screaming for their moms to help them because they were raping them and then after the rape they killed them.”

Cristales is joining Lawyers Without Borders and the Canadian Centre for International Justice in demanding that the Canadian government prosecute Sosa for war crimes here, instead of returning him to the United States.

“He’s only being charged in the United States for lying on his citizenship application. There are no charges for the underlying crimes that he allegedly committed in the Dos Erres massacre,” explained Matt Eisenbrandt, the legal co-ordinator for the Centre for International Justice.

“In Canada he could stand trial for crimes against humanity, for war crimes, for the actual human-rights abuses.”

Sosa was arrested earlier this year in Lethbridge, Alta., and is accused of lying to American immigration authorities when he applied for U.S. citizenship about whether he had committed a crime or been a member of a military organization.

The groups want the Canadian government to take a stand in the case, but so far have not received a response from the federal justice minister. Eisenbrandt said the Canadian government has an obligation to do something in this case.

“There are very strong laws in Canada that allow for the prosecution of crimes against humanity and war crimes even when they’re committed overseas,” he said.

“This is a case that has a very close connection to Canada. There is a Canadian citizen who is a survivor and Mr. Sosa is himself a Canadian citizen.”

A Calgary judge ruled in September that there was sufficient evidence to approve the extradition request.

During that extradition hearing Sosa’s lawyer, Alain Hepner, acknowledged the “atrocities” committed in Guatemala formed a backdrop for the hearing, but argued the key was to determine if Sosa committed perjury.

Hepner said there was “ambiguity” in the questions asked by U.S. Immigration officials and there is no proof Sosa committed any crimes.

“There is no trial. He hasn’t been convicted,” said Hepner. “He is in essence denying the crimes they say he committed.”

But the judge had harsh words for Sosa.

“The evidence from the massacre at Dos Erres clearly establishes that Sosa was present and involved and actively participated in the killings with a sledgehammer, a firearm and a grenade,” Judge Neil Wittmann said.

“It is hard for this court to comprehend these murderous acts of depraved cruelty.”

“I want him to stay here and he can pay for whatever he did in Guatemala,” said Cristales.”

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Canada here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Leave a Comment » | International Extradition Attorneys - McNabb Associates | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Bruce Beresford-Redman, a TV Producer, to be Sent to Mexico to Stand Trial

July 12, 2011

Times Union on July 12, 2011 released the following:

“ANTHONY McCARTNEY, AP Entertainment Writer

LOS ANGELES (AP) — A judge on Tuesday ordered a reality TV producer to be returned to Mexico to face a charge that he killed his wife while on a family vacation 15 months ago.

U.S. Magistrate Judge Jacqueline Chooljian issued her ruling after a nearly two-hour extradition hearing in Los Angeles.

Bruce Beresford-Redman has been jailed since November on a fugitive warrant issued after Mexican authorities in Cancun charged him with the aggravated homicide of his wife, Monica Beresford-Redman.

He could face between 12 and 30 years in prison if convicted.

The former “Survivor” producer can appeal the ruling, and federal prosecutors said it could be at least a year before he is sent to Mexico if he pursues all his U.S. appeals.

Beresford-Redman did not react during the hearing. He appeared in court in a jail jumpsuit and was shackled throughout the hearing.

His attorney, Richard Hirsch, argued there were major inconsistencies in the evidence, and extradition should be rejected. Chooljian, however, said she made her ruling after considering the totality of the evidence and that there was probable cause that Beresford-Redman killed his wife.

His attorneys have said he is innocent and challenged the case against him, calling it a rush to judgment.

Monica Beresford-Redman’s body was found in a sewer cistern at an upscale Cancun resort in April 2010.

Alison Triessl, an attorney for her family, said the victim’s sisters were happy with the result but realize it is another step in a long process.

“They know there will probably be appeal after appeal,” Triessl said. “It’s an important day for justice. It’s an important day so they can rebuild their lives.”

Monica Beresford-Redman owned a popular Brazilian-themed restaurant in Los Angeles.

Chooljian’s ruling came after defense lawyers withdrew a request to call as a witness the 6-year-old daughter of Bruce Beresford-Redman amid unspecified concerns about the girl’s ability to testify in defense of her father.

After months of attempting to discredit Mexican authorities and attacking the case, Beresford-Redman made another attempt Tuesday to persuade the magistrate judge that he should be freed.

The couple had gone on the trip to try to repair their marriage, which had been damaged by an affair Bruce Beresford-Redman had with a co-worker.

His attorneys claim Mexican authorities rushed to judgment and built a case accusing Bruce Beresford-Redman based on motive rather than physical evidence.

Calling the couple’s 6-year-old daughter to testify during the hearing could have been problematic.

Witnesses are not generally called during extradition proceedings, and calling a child witness might have presented issues of who would question the girl and whether her testimony should be conducted in a closed session.

Statements filed by her therapist and one of Bruce Beresford-Redman’s attorneys suggested the girl would have testified that she never saw her father act violently toward her mother during the Cancun vacation.

The girl also told the therapist and attorney that she recalled her mother leaving the hotel room to go shopping on the day she went missing.

The defendants attorneys argue that the producer had no obligation to remain in Cancun while his wife’s death was investigated, although federal prosecutors and Mexican authorities both say his return to Los Angeles was illegal and should count against him in the extradition proceeding.

Prosecutors say there is overwhelming evidence against the producer that justifies his being sent to Mexico. In court filings, they cite a resort worker’s recollection that he saw someone matching Bruce Beresford-Redman’s description attempting to strike a woman during an argument at the hotel.

They also point to a noise complaint from tourists in another room that cited screams that appeared to be coming from a woman in distress coming from the Beresford-Redmans’ hotel room.”

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Bookmark and Share

Leave a Comment » | International Extradition Attorneys - McNabb Associates | Tagged: , , , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Extradition Treaty Law and Procedure – Part 15

July 8, 2011

Judicial Officer Authorized to Conduct the Extradition Hearing

Although it would appear from statutory language that the only judicial officer authorized to conduct the extradition hearing would be that which originally issued the warrant, the Supreme Court in 1902 held that the evidence of criminality may be heard by other judges, justices, or magistrates.

Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Bookmark and Share

Leave a Comment » | International Extradition Attorneys - McNabb Associates | Tagged: , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Bruce Beresford-Redman Extradition Update

July 7, 2011

Regular readers may recall the posting Bruce Beresford-Redman is Planning to Ask a U.S. Federal Judge to Allow His 6-year-old Daughter to Testify at an Upcoming Extradition Proceeding that came out several weeks ago.

On July 6, 2011, the defense filed Bruce Beresford Redman’s Request to Present Testimony at Extradition Hearing.

The extradition hearing is currently scheduled for July 12, 2011 at 9:30 am before Magistrate Judge Jacqueline Chooljian.

Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Bookmark and Share

Leave a Comment » | International Extradition Attorneys - McNabb Associates | Tagged: , , , , , , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Pakistani National Faces Extradition from London to U.S. on Terrorism Charges

October 7, 2010

A British judge says a Pakistani man alleged to have planned an al-Qaida attack in Britain and wanted by U.S. authorities over the New York subway bomb plot will appear for an extradition hearing in December.

Abid Naseer appeared by video link from prison Tuesday for a hearing at a London court.

Naseer’s lawyer argued that extradition will result in a breach of human rights and an abuse of process because of the U.S. legal and prison system.

The 24-year-old Naseer was arrested in July by Metropolitan Police counter-terrorism officers in the northeast of England on a U.S. extradition warrant. The warrant charges providing support to a foreign terrorist organization, conspiring to support a terror group and conspiracy to use a destructive device.

Prosecutors allege Naseer was part of a major al-Qaida conspiracy that included the New York subway plot. The U.S. is also investigating four other individuals allegedly involved in the plot.

District judge Nicholas Evans ordered Naseer to remain in custody before a scheduled three-day hearing starting December 15.

Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, Interpol Litigation, International Extradition and OFAC Litigation.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Bookmark and Share

Leave a Comment » | International Extradition Attorneys - McNabb Associates | Tagged: , , , , , , , , , , , , , , , , , , , | Permalink
Posted by McNabb Associates, P.C.

Follow

Get every new post delivered to your Inbox.

Join 337 other followers