J-A22027-22
2023 PA Super 7
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MOSHE JOURNO :
:
Appellant : No. 1351 WDA 2021
Appeal from the Judgment of Sentence Entered July 12, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014863-2004
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
OPINION BY DUBOW, J.: FILED: JANUARY 11, 2023
Appellant Moshe Journo appeals from the judgment of sentence entered
by the Court of Common Pleas of Allegheny County on July 12, 2021.
Appellant seeks judgment of acquittal on several charges, claiming that the
prosecution of these offenses violates the “Rule of Specialty” included in the
Protocol between the Government of the United States and the Government
of the State of Israel Amending the Convention on Extradition of 1962
(“Protocol”).1 After review, we conclude that the Commonwealth did not
violate the Rule of Specialty and affirm the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1Protocol between the Government of the United States and the Government
of the State of Israel Amending the Convention on Extradition of 1962, U.S.-
Isr., art. 8, July 6, 2005, S. Treaty Doc. No. 109-3 (amending Article XIII of
the 1962 Convention on Extradition).
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The Commonwealth alleged that Appellant sexually assaulted and raped
a 15-year-old girl (“Victim”) on September 6, 2004. Initially, the
Commonwealth charged Appellant with Aggravated Indecent Assault, Sexual
Assault, Statutory Sexual Assault, Indecent Assault, and Corruption of
Minors.2 After posting bond, Appellant did not appear at his preliminary
hearing and instead fled to Israel. In 2006, the Commonwealth filed a second
criminal complaint adding a charge of Rape relating to the same September
2004 criminal incident involving Victim.3
In January 2017, the Commonwealth sought extradition of Appellant
from Israel. In its Affidavit in Support of Request for Extradition (“Extradition
Affidavit”), the Commonwealth indicated that a 15-year-old victim alleged that
Appellant, then 39 years old, had raped her.4 The Extradition Affidavit
recounted the factual account provided by Victim, and attached the original
probable cause affidavit submitted by detectives in 2006. It additionally
stated that the Commonwealth originally charged Appellant with “several
violations of Pennsylvania law including aggravated indecent assault, sexual
assault, statutory sexual assault, indecent assault without the consent of the
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2 18 Pa.C.S. §§ 3125(a)(8), 3124.1, 3122.1, 3126(a)(8), and 6301(a),
respectively.
3 18 Pa.C.S. § 3121(a)(1) or (a)(2). The trial court eventually consolidated
the charges onto one docket.
4 Appellant included the Extradition Affidavit as Exhibit 1 to his Omnibus
Pretrial Motion.
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other, and corruption of minors[,]” before charging him with Rape. Extradition
Affidavit, dated 1/19/17, at 2. Notably, the Commonwealth sought extradition
solely for Rape and did not seek extradition for Aggravated Indecent Assault,
Statutory Sexual Assault, and Indecent Assault, charges which Appellant
challenges in the current appeal (“Contested Offenses”).5 Israel granted
extradition of Appellant for Rape in February 2019.
In April 2019, Appellant filed his Omnibus Pretrial Motion seeking, inter
alia, dismissal of the Contested Offenses. He argued that prosecution of the
Contested Offenses violated the Rule of Specialty in the Protocol, which, in
relevant part, prohibits the detention, trial, or punishment of an extradited
person for offenses other than the “offense for which extradition was granted,
or a lesser included offense based on the same facts as the offense for which
extradition was granted” or the consent of Israel.6 He emphasized that the
Contested Offenses are not lesser included offenses of Rape, which was the
only charge included in the extradition request.
Prior to the hearing on Appellant’s motion, the Commonwealth sought
Israel’s consent to waive the Rule of Specialty as to the Contested Offenses.
In its response, the Israeli Ministry of Justice opined:
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5Appellant does not challenge his prosecution for Sexual Assault, 18 Pa.C.S.
§ 3124.1, as it is a lesser included offense of Rape, or Corruption of Minors,
18 Pa.C.S. § 6301, which the trial court dismissed pretrial.
6 Protocol at art. 8.
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[The Contested Offenses] are based on the same set of
facts and relate to the same victim that appear in the
extradition request; the sole difference between the offense of
Rape, for which [Appellant] was extradited, and the additional
offenses, is the age requirement, which is in our view a legal
circumstance of lesser significance, in particular, when the
information regarding the age of the victim at the time of the
offense was fully brought before the Israeli instances within the
request for extradition - and was proven as part of the complaint,
to the level of proof required by the Israeli Law.
Our office has thus concluded that according to the Israeli case
law in this matter, charging [Appellant] with the additional
offenses does not constitute a deviation from the Rule of
Specialty, so long as the additional offenses are part of the
same affair as the original one and based on the same set
of facts laid before the Israeli court of extradition. As such,
charging [Appellant] as planned does not require the
consent of the State of Israel.
Letter from Att’y Matan Akiva of the Israeli Ministry of Justice to Att’y Mark
Aziz of the U.S. Dep’t of Justice, 6/24/19, at 1-2 (citation omitted, emphasis
added) (“Israeli Ministry’s Letter”).
During the hearing on Appellant’s pretrial motions, the trial court found
that the author of the Israeli Ministry’s Letter had authority to “pen the
letter.”7 The court relied upon the Letter’s conclusion that prosecution of the
Contested Offenses did not violate the Rule of Specialty because they were
part of the same incident and did not occur independently of the Rape, for
which Israel granted extradition. Accordingly, the trial court rejected
Appellant’s request for dismissal of the Contested Offenses. The court,
however, dismissed the Corruption of Minors charge, concluding that it was
____________________________________________
7 N.T. Hr’g, 6/28/19, at 36.
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neither a lesser-included offense of Rape nor addressed in the Israeli Ministry’s
Letter.
Following trial, a jury found Appellant guilty on all counts, and the trial
court sentenced Appellant to 6.5 to 20 years of incarceration for Rape and an
aggregate sentence on the Contested Offenses of 3.5 to 7 years of
incarceration. Appellant filed a post-sentence motion seeking, inter alia,
acquittal of the Contested Offenses, reiterating that prosecution of the
Contested Offenses violated the Rule of Specialty.
After the trial court denied his post-sentence motion, Appellant filed a
notice of appeal. Appellant and the trial court complied with Pa.R.A.P. 1925.
Before this Court, Appellant contests solely the prosecution of the Contested
Offenses as violative of the Protocol’s Rule of Specialty.8
A.
This case requires the Court’s interpretation of the Rule of Specialty
contained within the extradition treaty between the United States and Israel.
The interpretation of a treaty is a question of law over which “our standard of
review is de novo and our scope is plenary.” Commonwealth v. Padilla, 80
A.3d 1238, 1259 (Pa. 2013); see also State v. Gordon,
781 A.2d 976, 978
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8 In its briefing to this Court, the Commonwealth contests Appellant’s
standing, observing that the federal circuit courts have divided on the question
of an individual’s standing to raise a Rule of Specialty violation. We need not
address this disputed issue because we ultimately determine that Appellant’s
claim fails on the merits.
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(N.H. 2001) (finding that violation of the doctrine of specialty is a question of
law).
The United States Supreme Court instructs that courts interpreting a
treaty should “begin with the text of the treaty and the context in which the
written words are used.” Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 699 (1988) (citation and internal quotation marks
omitted). While general rules of construction may be utilized, the High Court
explained that courts should construe treaties “more liberally than private
agreements,” and “may look beyond the written words to the history of the
treaty, the negotiations, and the practical construction adopted by the
parties.”
Id. at 700 (citation and internal quotation marks omitted).
Additionally, “[i]t is well settled that the Executive Branch's interpretation of
a treaty is entitled to great weight.” Abbott v. Abbott,
560 U.S. 1, 15 (2010)
(citation and internal quotation marks omitted).
Broadly, an extradition treaty is “a cooperative agreement between two
governments for the prosecution and punishment of criminal offenders.”
United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995). Most
extradition treaties include a provision relating to specialty.9 Absent certain
exceptions, the Rule of Specialty instructs that a “requisitioning state may not,
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9 Courts reference the concept as the rule, doctrine, or principle of specialty
or speciality. We will use the term Rule of Specialty. Likewise, while the Rule
of Specialty references circumstances where a defendant is ”detained, tried,
or punished,” we will use the term “prosecution” to reference the entire
process.
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without the permission of the asylum state, try or punish the fugitive for any
crimes committed before the extradition except the crimes for which he was
extradited.” United States v. LeBaron, 156 F.3d 621, 626 (5th Cir. 1998)
(citation omitted).
While benefiting the individual defendant, courts applying the Rule of
Specialty emphasize that the doctrine concerns international comity “rather
than the rights of the defendant” and thus a defendant’s protection under the
rule “exists only to the extent that the surrendering country wishes.” United
States v. Tse, 135 F.3d 200, 205 (1st Cir. 1998) (citation omitted); see also
United States v. Andonian,
29 F.3d 1432, 1435 (9th Cir. 1994); State v.
Gordon,
815 A.2d 379, 383 (N.H. 2002) (citation omitted). The underlying
concern is whether the extraditing country would view the prosecution of the
additional charges as “a breach of faith” by the receiving country. Fiocconi
v. Attorney General of the U.S.,
462 F.2d 475, 481-82 (2d Cir. 1972).
As applicable to the case at bar, the Rule of Specialty included in the
Protocol between the United States and Israel provides in relevant part as
follows:
1. A person extradited under the Convention may not be detained,
tried, or punished in the Requesting Party except for:
(a) any offense for which extradition was granted, or a lesser
included offense based on the same facts as the offense for
which extradition was granted;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested
Party consents to the person's detention, trial or punishment.
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Protocol between the Government of the United States and the Government
of the State of Israel Amending the Convention on Extradition of 1962, U.S.-
Isr., art. 8, July 6, 2005, S. Treaty Doc. No. 109-3 (amending Article XIII of
the 1962 Convention on Extradition) (emphasis added).
B.
In this case, Appellant argues that the prosecution of the Contested
Offenses violates the Rule of Specialty. The trial court rejected this argument,
concluding that the Israeli Ministry’s Letter “resolved any dispute” as to the
Commonwealth’s authority to prosecute Appellant for the Contested
Charges.10 Tr. Ct. Op., 2/25/22, at 7-8. As noted, the Israeli Ministry of
Justice opined that prosecution of additional offenses “does not constitute a
deviation from the Rule of Specialty, so long as the additional offenses are
part of the same affair as the original one and based on the same set of facts
laid before the Israeli court of extradition.” Israeli Ministry’s Letter at 2. As
applied to this case, it recounted that the Contested Offenses were “based on
the same set of facts and relate to the same victim that appear in the
extradition request” for Rape. Id. at 1. Upon review, we affirm the trial
court’s conclusion that prosecution of Appellant for the Contested Offenses
does not violate the Rule of Specialty, as adopted and interpreted by the
United States and Israel, because they are “lesser included offense[s] based
____________________________________________
10 In its 1925(a) Opinion, the trial court incorporated the analysis of Judge
Tranquilli, who had decided the issue from the bench during the June 28, 2019
hearing. Judge Beemer replaced Judge Tranquilli as trial judge in this case
prior to February 2020.
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on the same facts as the [Rape]” for which Israel granted extradition. Protocol
at art. 8.
Before this Court, Appellant claims that prosecution of the Contested
Offenses violates the Protocol’s Rule of Specialty because they are not “lesser
included offenses” of Rape. He contends that the Rule of Specialty does not
permit prosecution of additional offenses merely because they are based on
the same set of facts as the extraditing offense. In support, Appellant claims
that “[f]ederal decisional law – as a body – limits prosecution of an extraditee
to the offense of extradition and additional counts of the same offense[,]”
rather than allowing prosecution for offenses that “may have been part of the
same criminal episode” as the extraditing offense. Appellant’s Br. at 25. He
observes that courts have opined that the Rule of Specialty prohibits
“prosecution for different substantive offenses other than those for which
consent has been given, and not prosecution for additional or separate counts
of the same offense” Id. at 30 (citing LeBaron, 156 F.3d at 627-28). He
maintains that determining whether a crime is a “lesser included offense”
requires an analysis of each charge’s elements under the Pennsylvania’s
Crimes Code.
We conclude that the precedent does not support Appellant’s reading.
While courts have found that prosecution of additional counts of an extraditing
offense is permissible under the relevant Rules of Specialty, the cases do not
bar the prosecution of other offenses connected with the extraditing offense,
merely because they are classified as separate crimes under the requesting
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country’s crimes code. The Rule of Specialty does not turn on “some technical
refinement of local law[.]” United States v. Paroutian, 299 F.2d at 486,
491 (2nd Cir. 1962). Instead, the focus is on the “whether the extraditing
country would consider those acts for which the defendant was prosecuted as
independent from those for which he was extradited.” LeBaron, 156 F.3d at
627 (quoting Andonian,
29 F.3d at 1435).11
In addition to federal precedent addressing the Doctrine of Specialty,
Appellant’s position also conflicts with the history of the provision and the
signatories’ interpretation of the specific language of the Rule of Specialty
contained in the Protocol between the United States and Israel. See
Volkswagenwerk Aktiengesellschaft, 486 U.S. at 699–700 (directing
courts interpreting treaties to consider “the history of the treaty, the
____________________________________________
11 While our research has not disclosed any court addressing the specific
language in the United States-Israeli Protocol, other courts have considered
the issue under similar Rules of Specialty for other treaties and found
prosecution of additional crimes permissible when based on the same facts as
the extraditing offense. See, e.g., Paroutian, 299 F.2d at 490-91
(permitting prosecution of “receipt and concealment of heroin” rather than
“narcotics trafficking,” the offense listed on the extradition request, based
upon the conclusion that Lebanon would not consider the additional charges
to be separate offenses from the extraditing offense); Tse, 135 F.3d at 205
(concluding that the United States could prosecute the defendant for
attempted murder in the aid of a racketeering enterprise, which was not
included in the original extradition request, because it was based on the same
set of facts giving rise to the offense of conspiracy to commit murder in the
aid of a racketeering enterprise for which Hong Kong had granted extradition);
Gordon,
781 A.2d at 979 (permitting prosecution for probation violations that
were not included in the extradition request to Belgium, but where the
extraditing offense of sexual assault “formed the very basis for finding that he
had violated his probation").
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negotiations, and the practical construction adopted by the parties”) (citations
and internal quotations marks omitted).
When transmitting the Protocol for the advice and consent of the United
States Senate, President George W. Bush included a report submitted by the
State Department in which Secretary of State Condoleezza Rice explained the
amended Rule of Specialty:
New Article XIII(1) sets forth the rule of speciality. It provides,
subject to specific exceptions, that a person extradited under the
Treaty may not be detained, tried, or punished in the Requesting
Party for an offense other than that for which extradition has been
granted. This prohibition applies, unless (a) the offense is based
on the same facts as the offense for which extradition was
granted; (b) the offense was committed after the extradition of
the person; or (c) the offense is one for which the executive
authority of the Requested Party consents to the person's
detention.
Protocol at Letter of Submittal (“Letter of Submittal”).
Appellant argues against reliance on Secretary Rice’s Letter of
Submittal. He contends that the Secretary’s letter misstates the requirements
of the Rule of Specialty by allowing prosecution “based on the same facts” of
the extraditing offense rather than limiting prosecution to “lesser included
offense[s] based on the same facts” as the extraditing offense as set forth in
the Protocol. Appellant’s Br. at 34-35 (quoting Letter of Submittal and
Protocol at art. 8). He emphasizes that the Secretary’s letter is not part of
the Protocol agreed to by Israel.
We reject this criticism as “[i]t is well settled that the Executive Branch's
interpretation of a treaty is entitled to great weight.” Abbott, 560 U.S. at 15
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(citation and internal quotation marks omitted). Moreover, Secretary Rice’s
summary mirrors the Israeli Ministry of Justice’s interpretation of the Rule of
Specialty in its letter in this case. As noted above, the Ministry opined that
“additional offenses [do] not constitute a deviation from the Rule of Specialty,
so long as the additional offenses are part of the same affair as the original
one and based on the same set of facts laid before the Israeli court of
extradition.” Israeli Ministry’s Letter at 2. We conclude that Secretary Rice’s
Letter of Submittal and the Israeli Ministry of Justice’s Letter demonstrate the
intent of the signatories.
We additionally do not read the Rule of Specialty’s use of the term
“lesser included” as mandating an element-by-element analysis of the
offenses. The language does not suggest that the United States’ and Israeli
negotiators intended the extradition analysis to turn on the vagaries of local
crimes codes. Instead, we interpret the Rule of Specialty in light of the
guidance provided by the signatory states and conclude that it is the factual
circumstances of the offenses rather than the Crime Code’s definition of a
“lesser included offense” that determines the scope of the extradition order.
Moreover, we agree with the trial court that the Israeli Ministry of
Justice’s letter is of particular importance. As has been oft stated, “the crux
of the doctrine of specialty is the question: ‘whether the requested state has
objected or would object to prosecution.’” United States v. Abello-Silva,
948 F.2d 1168, 1171-1173 (10th Cir. 1991) (quoting RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW § 477 cmt. b (1987)) (overruled on other grounds as
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recognized by United States v. Martinez, 78 F.App’x. 679 (10th Cir. 2003)).
In this case, we need not guess how the sending state would view the offenses
as Israel expressly concluded that the prosecution of the Contested Offenses
does “not constitute a deviation from the Rule of Specialty” such that
“charging [Appellant] as planned does not require the consent of the State of
Israel.” Israeli Ministry’s Letter at 2.12
After review, we agree that prosecution of the Contested Offenses does
not violate the Protocol’s Rule of Specialty. This is not a case where the
Commonwealth charged Appellant with the 2004 Rape and then attempted to
add charges regarding, for example, a 2003 Arson, which would obviously be
separate incidents. Rather, as the Ministry noted and the trial court relied
upon, the Contested Offenses “are part of the same affair as the original one
and based on the same set of facts laid before the Israeli court of extradition.”
Id.
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12Appellant alleges that this Court should not rely upon the Israeli Ministry’s
Letter because the Commonwealth may not have provided Israel with the
necessary information for it to make an informed decision.
Contrary to Appellant’s allegations, the Israeli Ministry of Justice had ample
information regarding this case. Specifically, the Commonwealth provided the
Ministry with a detailed factual account of the incident in the Extradition
Affidavit, where it also indicated that it originally charged Appellant with the
Contested Offenses. Moreover, the Israeli Ministry seemingly did not find the
specific elements, potential maximum penalties, or statutes of limitations of
the Contested Offenses relevant to the determination of whether the
prosecution of those charges violated the Rule of Specialty as it did not request
additional information on those topics.
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Accordingly, we affirm the trial court’s conclusion that prosecution of
Appellant for the Contested Offenses does not violate the Rule of Specialty, as
adopted and interpreted by the United States and Israel, because they are
“lesser included offense[s] based on the same facts as the [Rape]” for which
Israel granted extradition. Protocol at art. 8.13 Therefore, we reject
Appellant’s arguments seeking a judgment of acquittal and instead affirm the
trial court’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
____________________________________________
13As we conclude that prosecution for the Contested Offenses does not violate
the Rule of Specialty, we will not address Appellant’s argument that Israel did
not expressly consent to prosecution.
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