The opinion of the court was delivered by: REVERCOMB
Defendant Robert Mario Sensi was regional sales manager for Kuwait Airways Corporation in Washington, D.C. On August 14, 1986, a complaint charging defendant with interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314 (1982) was filed in United States District Court for the District of Columbia. A warrant for his arrest issued the same day.
Mr. Sensi was provisionally arrested in London on August 22, 1986, based on a request by the United States Government to the Government of the United Kingdom, pursuant to Article VIII(1) of the Extradition Treaty between the United States and the United Kingdom, signed at London on June 8, 1972 (entered into force January 21, 1977), 28 UST 227; TIAS 8468 (the "Treaty"). On September 18, 1986, a grand jury investigating defendant's alleged conduct returned a twenty-six count indictment charging defendant with the felonies of mail fraud, possession and receipt of stolen securities, first degree theft and transportation of stolen securities.
The United States Government made a request for the defendant's extradition from England to the United States on September 26, 1986. On November 27, 1986, a hearing before the Stipendiary Magistrate at Bow Street was held on the request, and the Magistrate concluded the defendant was extraditable. The defendant did not appeal the finding by filing a writ of habeas corpus, and on December 19, 1986 he was extradited to the United States.
This matter is before the Court on defendant's Motion to Dismiss the Indictment and defendant's Motion to Bar Prosecution on All Counts of the Indictment. The Court has considered the memoranda in support of and in opposition to the motions, the entire record, and oral argument heard April 13, 1987.
In his Motion to Dismiss, defendant contends the United States government engaged in conduct which denied him a speedy trial and due process of law. Specifically, defendant alleges he was denied a speedy trial due to the government's decision to have him returned through formal extradition procedures, as well as the government's delay in returning an indictment and in forwarding to England the materials needed for extradition.
The Court concludes that the decision to proceed with formal extradition was well within the government's discretion of law enforcement. In addition, the indictment of defendant was returned within thirty days of defendant's initial arrest, as prescribed by Title 18, U.S. Code, Sec. 3161(b) (1982). The Court notes the exception to the Speedy Trial Act when the defendant is unavailable for trial. Title 18, U.S. Code, Sec. 3161(3)(A) (1982). Although the government may have contributed to the defendant's unavailability due to formal extradition, the Court concludes the decision was not unsound. Accordingly, defendant's Motion is DENIED on these grounds.
Defendant contends he was also denied a speedy trial and due process because the government did not forward sufficient extradition material to England within forty-five days of defendant's arrest. Article VIII of the Extradition Treaty requires the release of an arrested person if a request for extradition is not received within forty-five days of the provisional arrest. Once that request is made, and the requested party requires additional information, Article IX of the Treaty requires it to be submitted within the time required by that party. The Court concludes the United States initially submitted material supporting extradition within the forty-five day period, and that there is nothing in the record to indicate the government unreasonably delayed sending the additional requested material. The Court also notes that defendant's counsel initially agreed to give the Crown Prosecution Service time to contact the United States for supplementary evidence. (Def.'s Motion to Dismiss at 4).
Even if the Court were to conclude defendant had been detained improperly, "it is well settled that the jurisdiction of the Court in which an indictment is found is not impaired by the manner in which the accused is brought before it. The fact that the arrest was unlawful or the removal proceedings illegal would not affect such jurisdiction." Klink v. Looney, 262 F.2d 119, 121 (10th Cir. 1958); accord Strand v. Schmittroth, 251 F.2d 590, 600 (9th Cir. 1957). "A defendant in a criminal prosecution who has been extradited from a foreign country may not procure his discharge by showing that the extradition proceedings were irregular or illegal, or that they were not conducted in good faith." 31 Am. Jur. 2d Extradition, Sec. 74, p. 981 (1967), citing Pettibone v. Nichols, 203 U.S. 192, 27 S. Ct. 111, 51 L. Ed. 2d (1906). Accordingly, defendant's Motion is DENIED on this ground as well.
Finally, defendant moves for dismissal on the grounds that delays prior to indictment and extradition caused substantial prejudice to his defense, thereby depriving him of due process of law. The standard set forth by the Supreme Court is that "the Due Process Clause of the Fifth Amendment would require dismissal . . . [if] the pre-indictment delay caused substantial prejudice . . . to a fair trial and . . . the delay was an intentional device to gain a tactical advantage over the accused." United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). The Court concludes there are no facts in the record to support an allegation of intentional delay in the three week hiatus between arrest and indictment, and that the indictment was returned within the statutory period. See Title 18 U.S. Code, Sec. 3161 (b).
With respect to any other claims of due process denial through delay, the Supreme Court has held that the circumstances must be evaluated not only in terms of actual prejudice to the defendant, but also in terms of any legitimate reasons for the delay. United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). The Court has concluded the government acted within its discretion in seeking formal extradition, and there is no sufficient indication of intentional delay in providing the complete materials necessary for extradition. Accordingly, the reasons for any delay were legitimate, and defendant's Motion is DENIED.
In his Motion to Bar Prosecution on All Counts of the Indictment, defendant contends the English Magistrate did not find sufficient evidence to extradite defendant for any of the charges in the indictment, and, in fact, did not extradite him for any of those charges.
Extraditions from the United Kingdom are governed by the Treaty and the English Extradition Act of 1870, as amended (the "Act"), which prescribe several preconditions. Primarily, a person may not be detained or tried in [The United States] for any offense . . . other than the extradition crime proved by the facts on which the surrender is grounded." Sec. 3(ii) of the Act; Article XII of the Treaty. This prerequisite encompasses what is known as the "rule of speciality."
The United States challenges defendant's contentions, asserting first that the rule of speciality confers a privilege which can be invoked only by the government surrendering an extraditee. The United States alleges defendant has no rights under the Treaty to challenge his extradition.
Although the Treaty between the United States and The United Kingdom is a contract between the governments of those nations, it is also the supreme law of this land by virtue of the Constitution (Article VI). For the United States "government to detain [a] person for trial on any [non-extradited] charge would be not only an infraction of the contract between the parties to the treaty, but also a violation of the supreme law of this land in a matter directly involving his personal rights." Ex Parte Hibbs, 26 F. 431 (D.Or. 1886). Therefore, the Court concludes ...