“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.””

————————————————————–

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.

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

Email:


Blocked Transfer Draws Attention to U.S.-U.K. Extradition Treaty

October 18, 2012

World Politics Review on October 18, 2012 released the following:

“By Catherine Cheney

On Tuesday, the British government announced that it would not extradite British hacker Gary McKinnon to the United States, marking the first time an extradition has been halted under the 2003 Extradition Act between the U.S. and the United Kingdom.

McKinnon, who is accused of serious crimes including hacking American military databases, has fought extradition for the past 10 years. But in light of new evidence about his health, British Home Secretary Theresa May, the government’s top authority on domestic affairs, cited McKinnon’s human rights as her main consideration. Extraditing McKinnon would put him at high risk of suicide, she said.

Trend Lines spoke to two experts about perceptions of the treaty, which has at times generated controversy, especially in the U.K.

“In the significant, overwhelming majority of extradition treaties, the requesting country is required to show probable cause that the individual probably committed the crime with which he has been charged,” explained Douglas McNabb, a senior principal for McNabb Associates and an expert in U.S. federal criminal law and international extradition.* “In the U.S.-U.K. treaty, the U.S. is not required to show probable cause. All the U.S. has to do is show a copy of the indictment and the arrest warrant and request that the individual be sent to the U.S.”

On the other hand, McNabb said, if the U.K. sought to have someone extradited from the U.S. to the U.K., the U.K. would be required to show probable cause.

According to McNabb, the treaty was negotiated because the Bush and Blair administrations “wanted to make it easier for the U.S. to have terrorists extradited from the U.K. to the U.S., so they provided for this expedited extradition process,” he said.

The fact that the significant majority of people extradited from the U.K. to the U.S. have been white-collar criminals, not terrorists, he added, has created a rift between the two states.

However, Ted Bromund, senior research fellow in Anglo-American relations at the Heritage Foundation’s Margaret Thatcher Center for Freedom, argued that much of the controversy surrounding the agreement is because it is “misunderstood and mischaracterized” in the U.K.

“It is useful to bear one simple fact in mind: it was Britain that wanted the 2003 treaty, not the U.S.,” Bromund wrote in an email to Trend Lines. “When the U.S. delayed ratifying the treaty, Britain criticized [Washington]. Now many in Britain condemn the very treaty they wanted, which came as part of a long, and completely British, effort to reform their extradition system.”

Most extraditions to and from the U.S. are completely uncontroversial, Bromund explained. McNabb, too, referred to five terrorism suspects who were extradited from the U.K. to the U.S. earlier this month, noting that at the time, “we did not hear anything about this treaty being unfair.”

Bromund said that while the McKinnon case has generated controversy, he does not see any serious risk of fallout for the treaty.

“In the McKinnon case, the U.S. made a perfectly legal extradition request. Britain has (finally) decided not to extradite him, not because of anything wrong with the U.S. or its request, but because Mr. McKinnon is mentally ill,” he explained. “Britain has the right to decide that, so the subject is now closed.”

Both experts pointed to the news that the U.K. plans to create a forum bar as being more significant. In cases where prosecution would be possible both in the U.K. and abroad, the forum bar would enable British courts to block prosecution overseas.

“What upsets those in the U.K. is that if the majority of the criminal conduct occurred in the U.K., as compared to the U.S., then their thought is that these guys ought to be tried in the U.K.,” McNabb said.

“We have seen the U.S. take a very aggressive approach extraterritorially,” McNabb said. Over the past decade, some defendants have raised concerns, and attracted attention, for being “shipped off to the U.S.” for crimes they committed at home. Over time, McNabb said, these cases, combined with the perceived inequality of the treaty, put enough pressure on the British to make some changes.

Bromund expressed concern over the creation of the forum bar.

“Depending on how this is worded — and that is important — this could require British courts to discriminate in favor of British subjects, and thus against foreigners, when considering extradition requests,” he said. In the past, Bromund explained, everyone has been equal before the law in the U.K., with the nationality of the accused making no difference as far as extradition goes. The forum bar could change that, he said.

While the U.K. home secretary has called the 2003 deal “broadly sound,” introducing the forum bar would be a major change to the law, something both experts said is worth keeping an eye on.”

————————————————————–

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:


Judge Ponders Canadian Man’s Extradition to the United States

October 17, 2012

ABC News on October 17, 2012 released the following:

EDMONTON, Alberta
Associated Press

“A judge will rule Friday whether to extradite a Canadian man to the United States on charges that he helped coordinate Tunisian jihadists believed responsible for separate suicide attacks in Iraq in 2009 that killed five American soldiers outside a U.S. base and seven people at an Iraqi police complex.

Sayfildin Tahir Sharif, who holds dual Canadian and Iraqi citizenship, was arrested in 2011 on a U.S. warrant and has been fighting extradition to New York.

The prosecution contends that evidence from intercepted Internet and phone conversations shows that Sharif was directly involved in supporting terrorists who conducted the suicide bombings.

Sharif, 40, never left Canada as part of the alleged conspiracy. He was born in Iraq but moved to Toronto as a refugee in 1993 and became a Canadian citizen. He has also gone by other names, including Faruq Muhammad’Isa.

His lawyer, Bob Aloneissi, argued in final submissions Tuesday that the prosecution provided no clear evidence that Sharif helped support a terrorist group.

Aloneissi said Sharif’s right to legal advice was violated when the Royal Canadian Mounted Police, FBI and U.S. Justice Department officials interrogated him immediately following his Jan. 19, 2011, arrest at an Edmonton apartment.

A U.S. Department of Justice investigator interviewed him with an FBI agent and a RCMP corporal present, the extradition request said. The interview “was conducted in compliance with United States law,” with Muhammad ‘Isa signing a waiver before voluntarily answering questions, it said.

During the interview, Muhammad ‘Isa admitted he corresponded by email from Canada with two of the terrorists while they were in Syria, and knew that they were on a mission to kill Americans, the paperwork says. The documents allege he corresponded with “facilitators” who were trying to get the attackers into Iraq, and wired one of them $700.

Justice Adam Germain of Edmonton Court of Queen’s Bench reserved his ruling until Friday.

Germain pointed out the standard of evidence required to extradite someone is much lower than is required for use in a criminal trial.

On Monday, Germain ruled that videotaped statements that Sharif made to police during his interrogation would be admitted as evidence.

If convicted of terrorism charges in the United States, Sharif could face a maximum sentence of life imprisonment.”

————————————————————–

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 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:


Gary McKinnon extradition to US blocked by Theresa May

October 16, 2012

BBC News UK on October 16, 2012 released the following:

“British computer hacker Gary McKinnon will not be extradited to the US, Home Secretary Theresa May has announced.

Mr McKinnon, 46, who admits accessing US government computers but claims he was looking for evidence of UFOs, has been fighting extradition since 2002.

The home secretary told MPs there was no doubt Mr McKinnon was “seriously ill” and the extradition warrant against him should be withdrawn.

Mrs May said the sole issue she had to consider was his human rights.

She said it was now for the Director of Public Prosecutions, Keir Starmer QC, to decide whether he should face trial in the UK.

Mrs May said: “Since I came into office, the sole issue on which I have been required to make a decision is whether Mr McKinnon’s extradition to the United States would breach his human rights.

“Mr McKinnon is accused of serious crimes. But there is also no doubt that he is seriously ill.

“He has Asperger’s syndrome, and suffers from depressive illness. The legal question before me is now whether the extent of that illness is sufficient to preclude extradition.

“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.”

Mrs May also said measures would be taken to enable a UK court to decide whether a person should stand trial in the UK or abroad – a so-called forum bar.

It would be designed to ensure extradition cases did not fall foul of “delays and satellite litigation”, she said.

“I believe extradition decisions must not only be fair, they must be seen to be fair. And they must be made in open court where decisions can be challenged and explained,” she said.

“That is why I have decided to introduce a forum bar. This will mean that where prosecution is possible in both the UK and in another state, the British courts will be able to bar prosecution overseas if they believe it is in the interests of justice to do so.”

Mr McKinnon, from Wood Green, north London, who has been diagnosed with Asperger’s syndrome, a form of autism, faced 60 years in jail if convicted in the US.

Mr McKinnon’s mother Janis Sharp was delighted with the decision, saying: “Thank you Theresa May from the bottom of my heart – I always knew you had the strength and courage to do the right thing.”

His MP, David Burrowes, who had threatened to resign as a parliamentary aide if Mr McKinnon was extradited, welcomed the decision.

Mr Burrowes, Conservative MP for Enfield Southgate in north London, tweeted: “Compassion and pre-election promises delivered today.”

BBC legal correspondent Clive Coleman said it was a dramatic decision – the first time a home secretary had stepped in to block an extradition under the current treaty with the US.

Shami Chakrabarti, director of civil rights group Liberty, said: “This is a great day for rights, freedoms and justice in the United Kingdom.

“The home secretary has spared this vulnerable man the cruelty of being sent to the US and accepted Liberty’s long-standing argument for change to our rotten extradition laws.”

Mark Lever, chief executive of the National Autistic Society, said he was “delighted that the years of waiting are finally over for Gary and his family”.

But Labour former home secretary Alan Johnson criticised the decision and claimed Mrs May had made a decision which was “in her own party’s best interests but it’s not in the best interests of this country”.

He said: “Gary McKinnon is accused of very serious offences. The US was perfectly within its rights and it was extremely reasonable of them to seek his extradition.”

Shadow home secretary Yvette Cooper asked Mrs May about the implications of her decision: “Clearly other people subject to extradition proceedings or immigration proceedings do cite medical conditions as a reason not to extradite so it would be useful for Parliament and the courts to understand the tests you have applied and whether that will set precedent in other cases.”

American lawyer, David Rivkin, a former White House adviser, said the decision was “laughable”, adding, “Under that logic, anybody who claims some kind of physical or mental problem can commit crimes with impunity and get away with it.”

US extradition expert Douglas McNabb said the US Attorney’s Office would be furious and he suspected it would ask Interpol to issue a red notice – making other nations aware there was an outstanding arrest warrant for Mr McKinnon in the US – which would mean he could be arrested if he left the UK.

The family of terror suspect Babar Ahmad said while they welcomed the decision not to extradite Mr McKinnon, questions had to be asked.

Mr Ahmad was one of five terror suspects, including radical cleric Abu Hamza al-Masri, extradited to the US earlier this month. His co-accused, Talha Ahsan, who was also extradited, was diagnosed with Asperger’s in June 2009, according to a European Court of Human Rights judgement.

Both are accused by US authorities of running a pro-jihad website.

Mr Ahmad’s family said: “Why within the space of two weeks, a British citizen with Asperger’s accused of computer-related activity is not extradited, while two other British citizens, one with Asperger’s, engaged in computer-related activity are extradited. A clear demonstration of double standards.”

US authorities have described Glasgow-born Mr McKinnon’s actions as the “biggest military computer hack of all time” and have demanded he face justice in America.

They insisted his hacking was “intentional and calculated to influence and affect the US government by intimidation and coercion”.

The Americans said his actions caused $800,000 (£487,000) worth of damage to military computer systems.

Mr McKinnon has previously lost appeals in the High Court and the House of Lords against his extradition, but two years ago a High Court judge ruled Mr McKinnon would be at risk of suicide if sent away.

Earlier this year Mrs May put the decision on hold to allow Home Office appointed psychiatrists to conduct an assessment.

They also concluded Mr McKinnon would be likely to take his own life if he was sent to face trial in the US.

Mr McKinnon was arrested in 2002 and again in 2005 before an order for his extradition was made in July 2006 under the 2003 Extradition Act.”

————————————————————–

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:


Kozeny Won’t Be Sent to U.S., U.K. Privy Council Rules

March 28, 2012

BusinessWeek.com on March 28, 2012 released the following:

“By David Glovin

Viktor Kozeny, the Czech-born businessman wanted in the U.S. where he’s accused of orchestrating a massive bribery scheme, won’t be extradited to New York from the Bahamas, the U.K.-based Privy Council ruled.

The Privy Council, the final court of appeal for some British Commonwealth countries, today affirmed a 2010 ruling by a Bahamas court refusing extradition. Kozeny, dubbed “the Pirate of Prague” in media reports, has been sought by U.S. prosecutors since 2005. He also faces unrelated fraud charges in the Czech Republic.

“We have prevailed on all points,” Kozeny, 48, said today in an interview from the Bahamas, which he hasn’t left since 1999.

The unanimous ruling by the five-judge council probably eliminates any chance that Kozeny will be returned to the U.S., where he faces federal charges for organizing a 1998 scheme to bribe government officials in Azerbaijan in return for rights to buy Socar, the state oil company.

Federal prosecutors in New York said he paid millions of dollars and promised billions more to spur the sale. A U.S. businessman, Frederic Bourke, is fighting his 2009 conviction on charges that he conspired with Kozeny. Socar was never sold.

Carly Sullivan, a spokeswoman for U.S. Attorney Preet Bharara in New York, declined to comment on the ruling.

Privy Council
The Privy Council said in a 22-page decision that it lacked jurisdiction to hear the case. It said Kozeny may not be extradited for bribery crimes that “would not constitute offenses against the law of the Bahamas if they took place within the Bahamas.”

The panel didn’t rule on the merits of the U.S. bribery case. The appeal of the prior extradition ruling was pursued by Bahamas prosecutors and supported by U.S. authorities.

Kozeny says the U.S. Foreign Corrupt Practices Act, which outlaws bribes to non-U.S. officials for business, didn’t cover him. U.S. prosecutors say the law applies to Kozeny, who brought American investors into the deal.

After the charges were unsealed in 2005, Kozeny spent 19 months in a Bahamas prison before being released to his family’s seaside estate, from where he’s fought extradition.

Benjamin Brafman, a New York lawyer who represents Kozeny in the U.S., said he doubted Kozeny would ever face charges in New York “unless he decides to come back.” The U.S. case is pending.

Feeling ‘Truly Vindicated’
Kozeny today expressed gratitude toward his lawyers and said he “felt truly vindicated” by the ruling. “They said it’s not a crime in the Bahamas,” he said. “They said it’s not a violation of the code over here.”

Kozeny, who may still face arrest if he leaves the Bahamas, said he will leave it to his lawyers to seek resolution of the charges. “At the most,” he said, the case should be settled with a “$10,000 civil violation.”

“This is obviously not a transaction that I would think about coming close to or repeating,” he said. Still, “it’s not much different from what happens all over the world.”

“It’s very painful to be accused that you crossed the line when you didn’t,” he added.

New York State prosecutors separately have accused Kozeny of stealing hundreds of millions of dollars from his U.S. investors in the Azerbaijan deal. Czech prosecutors have presented evidence to a court trying Kozeny in absentia on charges of embezzling $1.1 billion from mutual funds he established in the Czech Republic in the early 1990s.

A U.S. federal appeals court in December upheld Bourke’s conspiracy conviction. He has asked the Court of Appeals in Manhattan to reconsider and remains free pending the outcome.

The U.S. case is U.S. v. Kozeny, 05-cr-00518, U.S. District Court, Southern District of New York (Manhattan). The U.K. case is Superintendent of Her Majesty’s Foxhill Prison and the Government of the U.S. v. Kozeny, No. 73 of 2010.”

————————————————————–

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 and the extradition treaty between the United States and Bahamas 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 C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Alleged Guatemala Traffickers Exploit Legal Tool to Fight Extradition

February 7, 2012

InSightCrime.org on February 7, 2012 released the following:

“Written by Steven Dudley

A legal safeguard built into Guatemala’s justice system is being used to stall the extraditions to the United States of some of the country’s most notorious suspected drug traffickers.

The writ of amparo — which is something along the lines of an injunction in the United States, or “accion tutela” in Colombia — provides widespread “relief” or “protection” for the appellate who feels that a statute, law or government action is violating his rights under the country’s constitution.

The amparo is a broad measure that can also be used to reclaim rights as well, such as the right to obtain government-generated documents (equivalent to the Freedom of Information Act in the United States). As such, it is a sacred legal tool.

However, lawyers of some of Guatemala’s most notorious suspected organized crime figures are repeatedly employing the amparo in what appears to be an effort to indefinitely delay the extradition of their clients.

There at least nine high-profile suspects awaiting extradition who have used the measure.

1. Waldemar Lorenzana, alias “The Patriarch,” the long-time head of the Lorenzana clan, a diverse and powerful trafficking group that has been accused of working with both the Sinaloa Cartel and the Zetas.

2. Elio Lorenzana (pictured above), the son of Waldemar, and a suspected trafficker in his father’s organization.

3. Juan Ortiz Lopez, alias “Chamale,” the Guatemalan contact for the Sinaloa Cartel in the San Marcos state along the Mexican border.

4. Mauro Salomon Ramirez, a top lieutenant for the Chamale organization.

5. Alma Lucrecia Hernandez, Salomon’s replacement after his arrest in 2010.

6. Edgar Leonel Estrada, arrested for importing large amounts of pseudoephedrine, the raw material for methamphetamine, for the Mexican criminal organization Familia Michoacana.

7. Victor Emilio Estrada Paredes, who worked closely with his half-brother Edgar.

8. Byron Linares, a long-time drug trafficker who was captured then released in the early 2000s, then recaptured; Linares allegedly has connections in Colombia and sells illegal drugs to the Sinaloa Cartel, among others.

9. Alfonso Portillo, Guatemala’s ex-president who is accused of embezzlement, and has been tied to a group of ex-military intelligence personnel that facilitates drug trafficking, human smuggling, illegal adoptions, and other criminal activities.

The frivolous nature of the amparos has US authorities wringing their hands. In one case, the suspect’s lawyer filed an amparo contending that the words “United States” was not specific enough language to know who the accuser was, and that it could be confused with “the United States of Mexico.”

Others have made references to conflicts of interest within the court system, as this account from elPeriodico illustrates, attempting to sideline judges they deem unfavorable.

The most common amparos challenge the constitutionality of extradition (for example, see pdf version of what Elio Lorenzana’s lawyers filed in 2011, following his capture).

Guatemala allows extradition for cases that have been resolved or in cases in which the suspect is not wanted for a crime in Guatemala. But only Portillo and Linares still faces charges in Guatemala. Once those are settled, their lawyers are likely to file more amparos.

In the case of Portillo, this may be futile. Guatemala’s former president Alvaro Colom, in one of his last big decisions as head of state, authorized the extradition of one of his longtime political rivals just months after the courts, in a shameful ruling, absolved Portillo, and two of his accomplices, of several charges.

The amparo has also been employed against other judicial bodies seeking to prosecute organized crime figures, most notably the International Commission Against Impunity in Guatemala (CICIG), a United Nations-sponsored project that assists judicial and police authorities in investigating high-profile crimes.

The legal tactics go beyond amparos. On February 1, the day a court was to decide Elio Lorenzana’s fate, his lawyers resigned, leaving him without a defense and leaving the court with little choice but to suspend the hearing.

Traffickers in other countries have employed amparos as well, most notably in Mexico and Venezuela, where high-profile figures have argued extradition violates the constitution and their rights under it.

Amparos in extradition cases are not new, and US Congress has discussed their use in public hearings in the past. They have long been filed if the accused can face longer or more harsh sentences in the United States for their crimes than under their own countries’ laws.

Some of the most significant Guatemalan traffickers, such as Otto Herrera and Mario Paredes, alias “El Gordo,” were captured in other countries, making their extraditions or deportations easier. Both Herrera and Paredes were tried and sentenced in the United States.

However, the Guatemala-based cases can take months or years, and US authorities have no option but to wait.”

————————————————————–

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 Guatemala 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.”

————————————————————–

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.