850 F.2d 1463 - United States v. Herbage — 850 F.2d 1463

¶1Non-Argument Calendar.

¶2 *1464H. Jay Stevens, Federal Public Defender, Orlando, Fla., for defendant-appellant.

¶3Gary C. Librick, Asst. U.S. Atty., Orlando, Fla., J. Gaston Williams, Fraud Section, Dept, of Justice, Washington, D.C., for plaintiff-appellee.

¶4Before HILL, FAY and EDMONDSON, Circuit Judges.

¶5EDMONDSON, Circuit Judge:

¶6In August 1985 Alex William Herbage was indicted in the Middle District of Florida on twenty-three counts of mail fraud and on two counts of interstate or foreign transportation of fraudulently obtained money or property, in violation of 18 U.S.C. secs. 1341 and 2314.1 Herbage, a British citizen, was residing in England at the time the indictment was entered. The United States therefore sought and won Herbage’s extradition from Great Britain; Herbage was delivered into United States custody in December 1986. In August 1987 Herbage pleaded guilty to three counts of mail fraud and was then sentenced to three consecutive five-year terms of imprisonment.

¶7In this appeal Herbage challenges the jurisdiction of the United States court. Herbage alleges that the case against him must be dismissed because it violates the “principle of specialty” — that is, that he has been charged with crimes that were not set out in the extradition warrant presented to the British government. Because we determine that this claim is without merit, we affirm Herbage’s convictions and sentences.2

¶8 *1465International custom in extradition is now encompassed in most formal extradition agreements between nations. Most extradition treaties contain language setting forth the dual or double criminality principle and the specialty principle and expressing what will constitute extraditable offenses.

¶9“Double criminality refers to the characterization of the relator’s criminal conduct insofar as it constitutes an offense under the laws of the respective states_ ‘Double criminality’ is in effect a reciprocity requirement which is intended to ensure each of the respective states that they (and the relator) can rely on corresponding treatment, and that no state shall use its processes to surrender a person for conduct which it does not characterize as criminal.” M. Bassiouni, International Extradition: United States Law and Practice vol. 1, ch. 7, sec. 3, pp. 324-25 (2d rev. ed. Nov. 1987). In short, an individual will be extradited under a treaty containing a double criminality provision only when his actions constitute an offense in both the requesting and requested states.

¶10Not all conduct that may be a crime in both requesting and requested states will be subject to extradition. In those cases where a treaty governs extradition relations, the treaties “either list the offenses for which extradition shall be granted or designate a formula by which to determine extraditable offenses.” Id., vol. 1, ch. 7, sec. 4.1, p. 328.

¶11The specialty principle is a corollary to the requirements of double criminality and extraditable offenses. Id. “This principle stands for the proposition that the requesting state, which secures the surrender of a person, can prosecute that person only for the offense for which he or she was surrendered by the requested state or else must allow that person an opportunity to leave the prosecuting state to which he or she had been surrendered.” Id., vol. 1, ch. 7, sec. 7, pp. 359-60; see also, Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973).

¶12The Anglo-American extradition treaty under which appellant Herbage was extrad-icted3 contains requirements of double criminality (Article III),4 specialty (Article XII),5 and lists those offenses that are to be extraditable (“Schedule: List of Offenses referred to in Article III”).6

¶13Because of the requirements of double criminality and extraditable offenses, the offenses against American law charged against Herbage were analogized to British offenses in the draft charges before the British magistrate; these draft charges *1466were only one of several documents before the magistrate. Counts 1-9 of the American indictment were analogized to violations of section 15 of the British Theft Act (obtaining property by deception); counts 10-23 were considered under section 17(b)(2) of the same British act (false accounting); and counts 24-25 were considered under section 22(1) of the act (handling stolen goods). In granting the extradition order, the British magistrate necessarily determined that, in the light of the evidence presented, the conduct charged would have violated British law (therefore satisfying the element of double criminality) and was also an extraditable offense.

¶14On the basis of this British formulation of the charges, Herbage now contends that he was extradited only for trial on fraud charges, not on charges concerning misuse of the mails. He asserts that his convictions under the United States mail fraud statute were therefore unauthorized by the British government and violates the principle of specialty.

¶15For purposes of this case, we assume, without deciding, that an individual has standing to allege a violation of the specialty principle.7 A reading of the record clearly indicates that the British courts which considered the United States’ request for Herbage’s extradition were aware of the exact mail fraud charges brought against him by the United States. In July 1986, the justices of the High Court of Justice, Queen’s Bench Division (Divisional Court) heard Herbage’s application for habeas corpus, which challenged the magistrate’s order that Herbage be extradited to the United States. The transcript of these July 1986 proceedings indicates that a copy of the original United States indictment had been before the magistrate who originally considered the extradition request. The record also indicates that these courts were aware that the United Kingdom recognizes, pursuant to the Anglo-American extradition treaty, that use of the mails is but a jurisdictional element of the United States federal crime of mail fraud.8 Herbage’s argument that misuse of the mails is a substantive crime different from ordinary fraud for extradition purposes is unavailing.

¶16In the light of the treaty language and the facts of the case, it is evident that Herbage was convicted of the identical crimes for which he was extradited. There has been no violation of the principle of specialty, and the district court correctly denied Herbage’s motion to dismiss. Cf. United States v. Paroutian, 299 F.2d 486 (2d Cir.1962) (specialty principle not violated where defendant, extradited from Lebanon for narcotics trafficking on the basis of an indictment from the Southern District of New York, was actually tried under an indictment from the Eastern District of New York which included two drug counts *1467not covered in the indictment under which he was extradited).

¶17Herbage’s convictions and sentences are AFFIRMED.

¶24. There is debate about whether, theoretically, the principle of specialty is a right of the individual who is extradited or of the surrendering sovereign and about whether, practically, it is the individual that should be allowed to vindicate this right. See, e.g., United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.) (“[T]he protection [of specialty] exists only to the extent that the surrendering country wishes_ However, the person extradited may raise whatever objections the rendering county might have.”), cert. denied, — U.S. -, 107 S.Ct. 652, 93 L.Ed.2d 707 (1986); Note, Toward a More Principled Approach to the Principle of Specialty, 12 Cornell Int'l L.J. 309 (1979). The Supreme Court opinion which recognizes this principle speaks of a violation of the principle as involving both the party extradited and the surrendering country. See United States v. Rauscher, 119 U.S. 407, 422, 7 S.Ct. 234, 242, 30 L.Ed. 425 (1886).

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