“Did US flub Snowden extradition request? Hong Kong cites legal problems, Russia cites neutral zone”

June 24, 2013

ABA Journal on June 24, 2013 released the following:

By Debra Cassens Weiss

“American University law professor Steve Vladeck offers his take on why Edward Snowden was allowed to leave Hong Kong this weekend.

“The Hong Kong authorities used the murkiness of extradition law to make what was a political decision,” he told the Washington Post. Snowden has been charged with espionage for revealing the data collection program by the National Security Agency.

Hong Kong allowed Snowden to board a flight to Russia on Sunday though the U.S. had requested his extradition. He then booked a flight from Russia to Cuba, but he was not on board the plane, the Associated Press reports. He has requested asylum in Ecuador, and he was expected to travel to Cuba on his way there.

Hong Kong authorities said they couldn’t prevent Snowden from leaving their country because the United States “did not fully comply with the legal requirements under Hong Kong law.” Russia does not have an extradition agreement with the United States, and its officials said they have no legal authority to detain Snowden, the Washington Post reports. As long as Snowden is in a secure transit zone in the airport, he is not on Russian soil, according to Vladimir Lukin, Russia’s human rights ombudsman.

The New York Times reports that the United States may have flubbed Snowden’s case when it failed to revoke his passport. Former federal prosecutor David Laufman told the newspaper that the passport should have been revoked after charges were filed against Snowden on June 14. The United States did revoke Snowden’s passport on Saturday, but it was unclear if Hong Kong authorities were aware of the move or if it mattered because Snowden reportedly had special refugee travel documents from Ecuador arranged by WikiLeaks founder Julian Assange.

Attorney General Eric Holder had placed a call to his counterpart in Hong Kong on June 19 to stress the importance of extradition, and the United States had asked whether any additional documents were needed two days before, the Washington Post reports. Hong Kong requested more information on Friday, and U.S. officials were preparing the response when Snowden left for Russia.

Secretary of State John Kerry, meanwhile, warned of “consequences” if Russia allows Snowden to board a plane out of the country. Kerry said the United States has extradited seven Russian prisoners in the last two years, and “reciprocity is pretty important.” The fact that Snowden did not get on the plane to Cuba raised the possibility Russia detained Snowden, either to send him to the United States or to question him for its own purposes, the Times says.

Ecuador does have an extradition treaty with the United States, but it has an exception for “crimes or offenses of a political character,” Bloomberg News reports. U.S. prosecutors may have tried to avoid the political crimes exception by also charging Snowden with theft of government property, New York lawyer Douglas Burns told the wire service.”

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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

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We previously discussed the extradition treaty between the United States and Ecuador, extradition treaty between the United States and Cuba, extradition treaty between the United States and Venezuela here.

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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 Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

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“Snowden extradition may be complicated process if criminal charges are filed”

June 20, 2013

The Washington Post on June 19, 2013 released the following:

“By Sari Horwitz and Jia Lynn Yang

If U.S. officials criminally charge Edward Snowden, they are likely to confront a complicated and lengthy process to bring the admitted leaker of top-secret documents back home to stand trial, according to extradition experts and law enforcement officials.

Although the United States has an extradition treaty with Hong Kong, where Snowden was last seen, the treaty offers an exception for political offenses. It also has a rare exception that would allow Snowden to stay in Hong Kong if the government there determines it to be in its best interest. He also could apply for asylum in Hong Kong, Iceland or another country. On Wednesday, the founder of WikiLeaks told reporters that his legal advisers had been in touch with Icelandic officials on Snowden’s behalf.

“There are a number of hurdles that the government will have to jump through before Snowden will ever end up in a U.S. courtroom,” said Stephen I. Vladeck, an associate dean at American University’s Washington College of Law who studies national security law.

In the end, the ability to bring the former National Security Agency contractor back to the United States will come down to legal maneuvering and creative diplomacy, Vladeck said.

“The dirty little secret about extradition law,” he said, “is it’s really about 90 percent politics and only 10 percent law.”

Snowden, 29, revealed himself June 9 as the anonymous source for articles in the British newspaper the Guardian and The Washington Post about the NSA surveillance of telephone calls and Internet communications. He was staying in an upscale hotel in Hong Kong, a city that he said he had chosen because he felt he might win asylum there.

But Snowden subsequently left the hotel, and it is unclear where he is. In an unusual live Web chat Monday, he said he sees no possibility of a fair trial in the United States and suggested that he would try to elude authorities as long as possible.

Justice Department officials have said that a criminal investigation is underway, led by agents from the FBI’s Washington field office and lawyers from the department’s national security division. Investigators are gathering forensic material to back up possible criminal charges, most likely under the Espionage Act, according to former Justice Department officials.

Snowden also could be charged with theft and the conversion of property belonging to the U.S. government, experts say. A thorny issue for U.S. authorities trying to build their case against Snowden involves how much to reveal about the highly classified material that he allegedly acquired, according to former Justice Department officials.

U.S. officials could file a criminal complaint and try to have Snowden detained in Hong Kong on a provisional arrest, extradition lawyers said. They would then have 60 days to file an indictment, possibly under seal, setting out probable cause. U.S. authorities could then formally move to extradite Snowden for trial in the United States — a move he could fight in the courts.

The United States has extradition treaties with about 120 countries, but that doesn’t necessarily make it easier to extract people accused of a crime from those countries. For example, of 130 extradition requests to Britain since 2004, only 77 people were extradited to the United States.

To fight extradition, Snowden could invoke Article 6 of the 1997 pact between the United States and Hong Kong, which states that a suspect will not be surrendered to face criminal prosecution for an offense of a “political character.”

That’s a standard and historic exception in treaties between governments but one that lacks a standard definition or clear legal interpretation. In the United States, as well as in other states, what constitutes a political act has narrowed. How the Hong Kong courts would view such an assertion is unclear. If Snowden argues that he is an activist, said Simon N.M. Young, director for the Center of Comparative and Public Law at the University of Hong Kong, “this will be one of our first cases.”

Hong Kong also has an additional and unusual exception in its treaty that could provide a defense for Snowden, according to Douglas McNabb, a lawyer who specializes in international extradition cases. Hong Kong authorities can refuse the extradition of a suspect “if they believe it should be denied from a defense or foreign policy perspective,” McNabb said. “I have not seen that in any other treaty.” Public sentiment in support of Snowden has built in Hong Kong, and hundreds rallied in the streets Saturday.

Should a Hong Kong judge rule against Snowden, he could continue to appeal, all the way up to Hong Kong’s highest court, dragging the process out over many months. Bail is unlikely to be offered, so Snowden could be in jail at that point, possibly at the Lai Chi Kok maximum-
security facility in Kowloon, where conditions are harsh. “That will be added pressure on him for how long he wants to fight it out here,” Young said.

Aside from the courts, Snowden could plead for asylum, the route taken by WikiLeaks founder Julian Assange, who has been holed up for a year in the Ecuadoran Embassy in London.

Snowden, in an interview with the Guardian, floated the idea of asylum in Iceland, which has historically provided a haven for whistleblowers and never granted a U.S. extradition request.

Johannes Skulason, an Icelandic government official, told the Associated Press on Wednesday that WikiLeaks spokesman Kristinn Hrafnsson had held informal talks with assistants at the Interior Ministry and the prime minister’s office.

Skulason said Hrafnsson “presented his case that he was in contact with Snowden and wanted to see what the legal framework was like.”

But the United States could try to prevent Snowden from traveling by asking the International Criminal Police Organization, or Interpol, to put out a “red notice,” which is a bulletin for international fugitives and which alerts about 190 countries that there is an outstanding warrant for Snowden’s arrest.

Snowden could also apply for asylum in another country’s embassy in Hong Kong, as Assange did in London. Or he could make an asylum claim in Hong Kong after his travel visa expires in mid-August or if the U.S. government requests his surrender.

If he does apply for asylum, Snowden will be stumbling into a labyrinthine system criticized by human rights lawyers as dysfunctional and inefficient.

Hong Kong did not sign the United Nations’ 1951 Refugee Convention, and so the government has no obligation to process refu­gee claims. Instead, it relies mostly on the U.N. High Commissioner for Refugees’ office in Hong Kong, which is underderstaffed and has a backlog of asylum requests. In cases in which the applicants claim that they may be tortured if sent home, the Hong Kong government reviews the case. An estimated 5,000 claims are being processed by both the UNHCR and the Hong Kong government.

“We have asylum seekers who have been in Hong Kong for years,” Young said.

Because the UNHCR and the Hong Kong government evaluate claims, Snowden could seek to have his asylum case reviewed by both. Complicating the picture are two recent court cases mandating that Hong Kong consolidate its refu­gee system and establish a new process.

“I think Mr. Snowden is much wiser from a legal perspective than many people initially gave him credit for,” McNabb said. “I think he’s thought about this for a long time.””

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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 Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

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International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

Email:


US Extradition Act of 2003: UK Parliament fumes over use against citizens

July 9, 2012

Alaska Dispatch on July 8, 2012 released the following:

By: Michael Goldfarb

“LONDON, UK — The special relationship — Britain and the US, or is that the US and Britain? — is often remarked on here in Britain, particularly when there is a change at the top of government. A new president or prime minister is good for a couple of days of headlines, at least, about America and her most important ally.

It’s been decades since there was a serious challenge to the idea that the natural order of things is that the US and UK are as one on the matters that count. So it is easy to forget that for most of the last two centuries the two countries have frequently been “frenemies.”

But now there is an issue that threatens the perfect calm: extradition — to be specific, the Extradition Act of 2003.

Passed by a Labour-dominated Parliament in the aftermath of 9/11, when the Relationship was at the height of its Specialness, the Extradition Treaty was supposed to make it easier for Britain to send jihadists arrested on British soil to the US, if a request was made.

But the treaty immediately became controversial because it was used as much against British businessmen and computer hackers as suspects in the War on Terror.

The most recent example is the case of Richard O’Dwyer, a graduate student in computer science, who American authorities want extradited to face charges of copyright infringement. O’Dwyer set up a website TVshack.net, a search engine, which listed sites where films and programs could be watched. He is not accused of streaming any himself.

If you go to the site now, a notice comes up saying the domain name has been seized by US Immigration and Customs Service. This is followed by a brief, professionally made (and kind of clever) anti-piracy video.

The US request was granted by Britain’s Home Secretary, Theresa May, last March. The controversy burst out again last week, when Jimmy Wales, founder of Wikipedia, launched a campaign in The Guardian newspaper to prevent the extradition by posting an online petition.

Wales notes that had O’Dwyer been arrested for similar crimes in Britain, the maximum sentence would be six months. In the US, he could serve 10 years, if convicted.

The disproportion in sentencing between the two countries is one reason the treaty is increasingly coming under fire. The other is the standard of proof required for an extradition request to be granted. The last extradition treaty — signed in 1870 when Britain was the global superpower — required the US to show it had a prima facie case against the person being extradited. The new one drops that to “reasonable suspicion.”

This is an issue that cuts across party lines. The Joint Parliamentary Committee on Human Rights, composed of members of all parties, called for the treaty to be renegotiated, although another parliamentary review found that there was no imbalance at all.

Typical of those raising questions is Conservative MP Dominic Raab. A self-described America lover and Atlanticist, he understands why fast-track extradition “might be a jolly good thing” when dealing with terror suspects, but feels “the pendulum has swung too far” in facilitating all manner of extradition requests.

He questions the low legal threshold these requests have to pass. He alludes to the O’Dwyer case, “If criminal conduct is alleged to take place in the UK and the UK courts aren’t interested in prosecuting, why should American courts be allowed to prosecute a British citizen?” Raab adds, “We need sensible safe guards for our citizens.”

Raab points out that regardless of whether a suspect is proven innocent, an extradition “destroys your life. If you take six months to two years to fight charges successfully, the expenses incurred are devastating.”

American legal costs are much higher than those in Britain. Some Brits who have been extradited have struck a plea bargain rather than lose all their money. “But if you cop a plea bargain in return for a lighter sentence it still destroys your life,” says Raab.

There is another aspect of the extradition law that has Brits concerned: the fearsome reputation of American prisons. Their image as sinkholes of gang violence, homosexual rape and other kinds of depravity has spread around the planet via films and television.

This reputation was testified to recently by Gary Mulgrew, one of the NatWest Three — British bankers who were accused of a fraud related to Enron’s collapse and extradited to Texas. The trio pleaded guilty to one count each in order to reduce their prison time.

Now Mulgrew has written an account of his time in Big Spring, Texas penitentiary. “Gang of One” appeared in the ultra-right wing Daily Mail earlier this year, with the headline, “This wasn’t punishment. It was the Big Brother house with wall-to-wall psychos.”

It spared readers none of the horrors of life inside.

It is articles like this — and the sense that somehow Britain is being bullied into sending for trial people the law was not intended to cover — that lead to calls for either the scrapping or renegotiation of the Extradition Treaty.

Enter the case of Gary McKinnon, accused of committing the biggest military hack of all time.

In 2001-2002, McKinnon is alleged to have hacked into US military and NASA computers a total of 97 times.

Why?

He was looking to prove the military and space agencies were hiding evidence of extraterrestrial life and alien technology.

Sound odd?

Well McKinnon suffers from Asperger’s syndrome. His computer expertise and rather strange obsession is offered as proof of his condition.

The size of the hack, however, has US prosecutors fuming. McKinnon could face up to 70 years in prison if tried in the US and convicted on all counts.

The 46-year-old’s case is one of the hotter political potatoes British Prime Minister David Cameron has to handle. On July 5, McKinnon was offered another chance by Home Secretary May to have further medical tests before she makes her decision. Clearly, she wants to delay things for as long as possible, reports the Conservative-supporting Daily Telegraph.

If she chooses to interpret the treaty literally and send McKinnon to the US for trial, the “special relationship” will take a real beating here and the Conservative Party will pay the electoral price.”

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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 the United Kingdom 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 Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

Email:


Richard O’Dwyer: I Saw What They Did To Christopher Tappin, And I’m Scared

March 26, 2012

Huffington Post (UK) on March 26, 2012 released the following:

By: Dina Rickman

“A 23-year-old Briton facing extradition to America on copyright charges has spoken out about his fears in a rare interview, saying he could spend months waiting for trial in a high-security jail.

Student Richard O’Dwyer, who is appealing against being sent to the US, told The Huffington Post UK he was scared he would end up in a maximum-security institution with no bail, and said he didn’t deserve to be imprisoned.

“Yes, I am scared, I have seen in the media what they did to Chris Tappin [the 65-year-old British busisnessman recently extradited to the US] and how he has been put straight into jail with no bail,” Richard said.

Tappin is currently in prison in New Mexico, America, waiting for trial over allegations he plotted to sell arms to Iran.

“I have no criminal record and don’t think I deserve to be imprisoned for what should be a civil matter if anything. In the UK if I was charged with any offence I would not be put in jail for such a matter,” O’Dwyer said, via email.

“I am trying to stay positive and most importantly I want to complete my university degree.”

Richard’s mother Julia, who is appealing after Home Secretary Theresa May signed his extradition order this month, said she was in a “state of panic” when she heard her son could be put on trial in the states.

The mother-of-two has become an “accidental campaigner” against the controversial UK-US extradition treaty since Richard faced extradition to America over claims his website TVShack.net linked to pirated material.

“You’re not fighting any crime here, you’re fighting the law, the extradition law. You don’t get a chance to fight the allegation,” she told The Huffington Post UK.

However Julia – who still does her son’s washing when he returns from university in Sheffield to report for bail – is not angry at Richard: “I’m angry at the government.

“The police are just doing their job, they were just told to do that when it all came from America. I’m not at all angry at Richard, I’m even less angry than I might have been [if he had not been facing extradition] because I am more angry at the government.

“Maybe we’re closer together, a little bit. He doesn’t want to bother about it, you see, much. It’s just a major inconvenience to him,” she said.

“I see him every week. I usually bring his laundry back, I usually do it on the day he goes to bail so I can give him a lift for that. Sometimes he comes home for the weekend anyway. He has to report to a police station every week, whenever I see him I will take away his laundry and next time I’ll see him I will take a bit back. That’s what you do when your kids are at uni, you know.”

O’Dwyer has received support from the families of two other British men facing extradition, Tappin and computer hacker Gary McKinnon.

Julia is now calling for action on the “flawed” legislation, rather than more reform.

“Our government has failed to make a difference to a law that was pushed through the backdoor with no parliamentary scrutiny. Now we’re living with the consequences.

The government has sold him down the river. They’re doing it to other people. This law was put in place by the Labour government in the Queen’s prerogative with no parliamentary scrutiny. This government has promised to look at it and amend it before they came into power and they have done nothing about it except talk about it.””

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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 (US) and the United Kingdom (UK) here.

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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 C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Israeli judge: Fugitive can’t be deported unless U.S. prison provides kosher food

February 14, 2012

Haaretz.com on February 14, 2012 released the following:

“Jerusalem judge apparently did not try to ascertain whether Lawrence Seth Wayne, who had been sentenced by a Florida court to 19 years in prison for a 1998 hit-and-run, is actually religious.

By Tomer Zarchin

An American hit-and-run driver who was finally found in Israel last year, after fleeing Florida over a decade ago, may not be extraditable because Florida does not allow its prisoners to receive kosher food.

Jerusalem District Court Judge Ben-Tzion Greenberger on Sunday ruled that Lawrence Seth Wayne, who had been sentenced by a Florida court to 19 years in prison for the 1998 road accident, could not be extradited to a state that would violate his right to practice his religion.

Greenberger thus accepted Wayne’s argument that sending him back to Florida would violate Israel’s Extradition Law, which forbids extradition to a foreign country if this is liable to “harm public policy or a crucial interest of the State of Israel.”

If he was not assured kosher food, extraditing Wayne would constitute “a serious violation of his most basic rights to freedom of religion and worship,” Greenberger said.

He could only be extradited if Florida provided him with kosher food in prison, or allowed him to serve out his sentence in one of the 35 U.S. states that do provide its prisoners with kosher food, Greenberger said.

Florida has refused to allow Wayne to receive kosher food in prison even if he pays for it privately, and insists he must begin serving his sentence in Florida while awaiting the proceedings to transfer him to another state.

In February 1998, Wayne, a twice-convicted drunk driver, was again driving drunk when he slammed into Donald Cantwell’s pickup truck in Delray Beach, mortally injuring him. Wayne fled the scene but was apprehended by police. Cantwell died two days later.

Wayne was convicted of DUI manslaughter and sentenced to 19 years, but was let out on $50,000 bond while he appealed the case. He lost the appeal and fled the country before he could be brought to prison.

He entered Israel in 2000 using a forged passport and an assumed name. He was located and arrested last year after a decade-long manhunt conducted by the FBI that was finally concluded with the help of the Israel Police.

Apparently Greenberger did not attempt to ascertain whether Wayne, who has married and started a family here, is actually religious or whether he was trying to use the kosher food problem as an excuse to avoid extradition.

His attorney, Eric Bukatman of the Public Defender’s Office, said on Monday he didn’t know how long Wayne had been observant. Since taking on the case last year, he has always seen Wayne wearing a knitted kippa and the matter was not raised in court, he said.

The Supreme Court in several instances has recognized the right of those being extradited to be able to observe religious tenets – including kosher food, prayers and the right to wear a kippa – in the requesting country.

Two years ago, for example, Supreme Court Justice Elyakim Rubinstein conditioned the extradition of a suspect to Ukraine on his receiving kosher food, even though the suspect wasn’t Jewish, because only his father was Jewish. The Ukrainian authorities complied.

In the past Florida had an arrangement for supplying kosher food to prisoners, but canceled it, even though it recognized that this would violate some prisoners’ rights.

When this was challenged in a federal court, the court accepted the state’s arguments that the inconvenience to individual prisoners was reasonable when balanced against the expense providing kosher food entailed. The court also cited the risk of disorder that could occur in a prison when some prisoners are seen receiving special food that might be better than what the others receive.

Greenberger said he had examined the rulings of the Supreme Court in similar cases and “could not find a single case in which it was declared so unequivocally that the fugitive would not receive kosher food if extradited to the United States.”

But the case is not necessarily closed. “The country requesting [Wayne’s] extradition is not the state of Florida, but the United States of America,” Greenberger noted. “It is in its power to provide a simple and fitting solution to his legitimate need for kosher food, if not in Florida, then in one of the 35 states, or in the federal system, where kosher food is provided to kosher-observant prisoners.””

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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 Israel 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.


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.”

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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.


Assange extradition case goes to Supreme Court

December 16, 2011

BBC on December 16, 2011 released the following:

The UK Supreme Court has said it will consider an appeal by Wikileaks founder Julian Assange against his extradition to Sweden.

Britain’s highest court said seven judges would hear the case in February.

Mr Assange, who remains on conditional bail in the UK, is wanted by Swedish authorities for questioning over allegations of sexual assault.

The 40-year-old Australian denies the allegations and claims they are politically motivated.

The High Court previously approved his extradition, a decision that Mr Assange argues was unlawful.

The Swedish authorities are seeking to put him on trial on accusations of raping one woman and “sexually molesting and coercing” another in Stockholm in August 2010.

Mr Assange’s Wikileaks website published a mass of material from leaked diplomatic cables embarrassing several governments.

The US Army analyst suspected of leaking the documents appeared in an American military court on Friday, where he faces 22 charges of obtaining and distributing government secrets.

Bradley Manning made his first appearance in a courthouse in Maryland. He faces a court martial next year and, if convicted, could face life in prison.

The US government has already said it will not seek the death penalty, which is the maximum sentence for “aiding the enemy”, one of the charges faced by Mr Manning.

‘Great importance’

Earlier this month in the UK, two High Court judges, Sir John Thomas and Mr Justice Ouseley, decided that Mr Assange had raised a question on extradition law “of general public importance” and gave him 14 days to ask the Supreme Court for a final UK ruling.

On Friday, a Supreme Court spokesman said its justices had agreed to hear the case “given the great public importance of the issue raised, which is whether a prosecutor is a judicial authority”.

He said: “A panel of three Supreme Court Justices – Lord Hope, Lord Mance and Lord Dyson – has considered the written submissions of the parties; this is the court’s usual practice for considering applications for permission to appeal.

“The Supreme Court has granted permission to appeal and a hearing has been scheduled for two days, beginning on 1 February 2012.”

The Crown Prosecution Service said in a statement: “If, after the Supreme Court has heard the case, it dismisses Mr Assange’s appeal, then his only further remedy is to apply immediately to the European Court of Human Rights in Strasbourg, which will respond within 14 days.

“If it confirms that it does not agree to take the case then that is an end of the matter.”

The CPS said if the court in Strasbourg did decline to take the case then Mr Assange would be extradited to Sweden as soon as practicable.”

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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

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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.