For example, in applying the Rule where the government relies upon
2

accomplice testimony to establish probable cause, the accused may not call witnesses

3

to offer a contrary account or to establish an alibi.l.§' The accused may, however,

4

offer evidence to explain the government's proof without contradicting it.J.lI

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An example of explanatory evidence is found in United States v. Lui Kin-

6

Hong, 110 F.3d 103 (1st Cir. 1997). The accused was permitted to offer evidence to

7

explain various payments that the government alleged were bribes. The source,

8

amount, and timing of the payments were not controverted in any respect, and, under

9

the Rule of Non-Contradiction, could not have been. However, to the extent that the

10

government was arguing that it was reasonable to infer that the payments were in fact

11

bribes, the accused was allowed to introduce evidence that the payments had an

12

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283065. 1

unreliability of the Honduran reports on the blood and fibers .... The Court is
persuaded by Petitioner's argument that the government's evidence concerning the
blood and fibers is incompetent due to lack of generally accepted scientific
procedures. ").
16 See Zanazanian v. United States 729 F.2d 624, 627 (9th Cir. 1984)·
Mainero v. Gr~gg 164 F.3d 1199 1206 (9th Cir. 1999); Eain v. Wilkes, 641 F.2d
504, 510 (7th Cir.\, cert. denied, 454 U.S. 894 (1981); In re Atta~ 706 F. Supp. 1032,
1051 (E.D.N.Y. 1989). see~~, Freedman v. Dnitea States, 43/ F. Supp. 1252,
1266 (N.D. Ga. 1977) ("[T he mere presentation of witnesses who testIfy as to an
opposite version of facts WI I not" affect probable cause determination; ''It]he
resolution of such conflicts in evidence must await a trial on the merits. "l~·accord,
Republic of France v. Mo~hadam, 617 F. Supp. 777, 783 (N.D. Cal. 1985 . Shapiro v.
Ferrandina, 355 F. SUm? 63,572 (S.D.N.Y. 1973). See also, Hooker v. lein, 573
F.2d 1360,1369 (9th Cir.), cert. denied, 439 U.S. 932 (1978); Eain, 641 F.2d at 510.
17
See,~, Moghadam, 617 F. Supp. at 781-82 ("the accused may produce
evidence to explain matters, [but] the court may exclude evidence which merely
contradicts government testimony/poses conflIcts of credibility or establishes a
defense"); Jhirad v. Ferrandina, 362 F. Supp-. 1057, 1064-65 (S.D.N.Y. 1973)· NaYuet v. Itueston;,\ 690 F. SUplJ. 1008, 1011 (S.D. Fla. 1988); In re D'Amico, 185 F.
Supp. 925, 929-jO (S.D.N.¥. 1960).

18 The ~ccused's e~planation ~as .that the payments ~ere merely gifts made by
a grateful busmess aSSOCIate for havmg mtroduced a lucratIve business relationship
several years earlier. The court, however, elected not to believe the accused's
explanation, finding it "inherently implausible." Id. at 119.

10
Petersen 's Rejoinder to Government 's Reply Brief

 1

that the credibility of witnesses and the weight to be accorded their testimony is

2

solely within the province of the extradition magistrate and stated:

3

"Generally, evidence that explains away or completely obliterates

4

probable cause is the only evidence admissible at an extradition hearing,

5

whereas evidence that merely controverts the existence of probable

6

cause or raises a defense, is not admissible." Id. at 1207, fn. 7.

7

In Republic of France v. Moghadam, supra, 617 F. Supp. 777, the extradition

8

magistrate in the United States District Court for the Northern District of California

9

refused to certify an accused for extradition on the ground that the accused's

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proffered evidence "negated" the government's showing of probable cause. The

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accused, Moghadam, was sought for narcotics offenses. Ms. Custer had been arrested

12

at the airport in Paris and found to have heroin and opium in her luggage. She was

13

carrying a letter that implicated Moghadam, a convicted drug dealer, in the

14

smuggling attempt. She told the French investigating magistrate that Moghadam had

15

arranged for her to transport the narcotics and deliver them to him in San Francisco.

16

She claimed that at some point during her journey, she had called Moghadam from a

17

hotel to report that all was well. From a French prison, Custer wrote a letter to the

18

U.S. Drug Enforcement Administration ("D.E.A. ") offering to provide evidence

19

against Moghadam if she were transferred from the French jail to a U.S. jail. Id. at

20

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The Government of France requested that the United States extradite

22

Moghadam to France for his role in the importation. The U.S. Attorney in San

23

Francisco commenced an extradition proceeding. The government introduced

24

telephone records.confirming that Custer had called a phone number belonging to

25

Moghadam's brother-in-law. At the extradition hearing, Moghadam was permitted to

26

offer evidence explaining that Custer's fi ancee worked for the accused's brother in

27

law and often received calls at that number. Id. at 779 fn. 2. Moghadam also sought

28

to introduce evidence that Custer had later written a letter recanting the accusation
11
Petersen 's Rej oinder to Gove rnment' s Reply Brief

 1

made in her letter to the D.E.A. Id. at 780. Custer had subsequently withdrawn the

2

recantation and had reasserted the original accusation.

3

Citing In re D'Amico, 185 F. Supp. 925 (S.D.N.Y. 1960) for the proposition

4

that an extradition magistrate could take into account "the fact that testimony against

5

the defendant was recanted by the witness," the Moghadam Court stated that "[t]he

6

most significant aspect of the probable cause determination is Custer's recantation

7

letter which was later withdrawn." Id. at 783. Analyzing the facts surrounding

8

Custer's accusation, recantation, and re-accusation, the Court concluded that "Custer's

9

recantation appears to have more indicia of reliability than the original accusations."

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The Court based this conclusion largely on the fact that the accusations were "self-

11

serving" and had been motivated by .Custer's stated desire to be transferred out of the

12

French jail, whereas the recantation worked directly against that interest. Id. The

13

Court acknowledged the Rule of Non-Contradiction, but stated that Custer's

14

recantation went beyond "the mere presentation of witnesses who testify as to an

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opposite version of the facts." According to the Court, the recantation "negate[d] the

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only evidence of probable cause." Id. at 783. Concluding that the government had

17

failed to establish probable cause, the Court denied extradition .

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In In re D'Amico, supra, the accused was charged by the Government of Italy

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with kidnaping. The government's evidence consisted of the inculpatory confessions

20

of two alleged accomplices, both of whom later recanted, and the fact that the victim

21

had been held in a shack on property owned by the accused. The extradition

22

magistrate certified the accused for extradition. Counsel for the accused did not

23

challenge probable cause at the extradition hearing. The accused then obtained new

24

counsel, who challenged the determination of probable cause via habeas corpus

25

review. Id., at p. 926. The district court reopened the extradition hearing and

26

remanded to the extradition magistrate for further proceedings on the probable cause

27

issue. The district court ruled that at the hearing the accused would be permitted to

28

offer explanatory evidence concerning the shack, namely, that it was located in a

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12
Petersen ' s Rejoinder to Government ' s Reply Brief

 1

remote area of the accused's property where the accused seldom ventured. Id., at

2

p. 929. The Court held that such evidence was being

3

government's proof, and was therefore admissible. Id., at p. 930.

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ffered to explain ll the

4

In In re Extradition of Sauvage, supra, 819 F. Supp. 896, the magistrate judge

5

in the United States District Court for the Southern District of California concluded

6

that although the French prosecutor's and investigating magistrate's conclusory

7

findings were admissible as evidence, the court would give no weight to the findings

8

because it could not evaluate their factual basis. In addition, the French investigating

9

magistrate made no findings as to the accused's criminal intent. Id., at pp. 902-03.

10

Finding that there was no probable cause to believe that the accused committed the

11

offenses charged and that the facts established did not constitute a criminal offense in

12

the United States, the extradition magistrate denied the petition for extradition. Id. at

13

p. 904.

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extradition judge admitted the warrant of arrest; a transcribed statement of a trustee in

16

bankruptcy; and a letter from a German prosecutor discussing the preliminary

17

proceedings against the accused. The defense proffered a translation of a report of

18

the trustee in bankruptcy regarding the company in which the accused was allegedly

19

criminally involved. The extradition judge admitted the report over the government's

20

objections but limited it to clarifying the bankruptcy trustee's sworn statement. Id., at

21

p. 515. The extradition magistrate found that the government failed to show that the

22

accused acted with the requisite fraudulent intent. Id. at 515-518. The court noted

23

that the warrant of arrest mimicked the language of the German Penal Code in

24

describing the crimes alleged and "identifies the German government's investigatory

25

team and documentary evidence, it does not provide sufficient factual detail which

26

allows the Court to conclude that probable cause exists." Id. at 516. Next the Court

27

examined the sworn statement of the bankruptcy trustee to flesh out the facts to

28

support the crimes charged. Id. After reviewing the bankruptcy trustee's sworn

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Petersen's Rejoinder to Government 's Reply Brief

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statement ("affidavit"), the extradition magistrate found that the Warrant of Arrest

2

and the bankruptcy trustee's affidavit "do not contain sufficient factual information to

3

support a criminal charge .... The information submitted amounts to unsupported

4

conclusory statements which are insufficient to satisfy probable cause." Id. at 517.

5

The Court stated:

6

"Federal courts have recognized that conclusory statements do

7

not satisfy the probable cause standard. Where, as in the case before

8

the Court, probable cause is supported by an affidavit, "recital of

9

sufficient underlying circumstances is essential if the magistrate is to

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perform his detached function and not serve merely as a rubber

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stamp .... " Wellington v. State of South Dakota, 413 F.Supp. 151, 154

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(D.S.D.1976) (presentation of complaint drafted in the language of the

13

Minnesota larceny statute and affidavit identifying one fugitive as the

14

person who improperly received a check was held insufficient to support

15

probable cause); see also Kirkland v. Preston, 385 F.2d 670 (D.C.

16

Cir.1967) (affidavit submitted by Florida authorities in support of

17

interstate extradition which alleged in conclusory statutory language that

18

the defendants were guilty of second-degree arson was insufficient

19

absent providing factual circumstances to support the charges). Based on

20

the Warrant of Arrest and affidavit, this Court cannot issue a Certificate

21

of Extradition to the Secretary of State." (Emphasis added.)

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The extradition magistrate then reviewed the report of the bankruptcy trustee

23

submitted by the accused and found that it did not personally implicate the accused in

24

the relevant transactions and it did not identify the bankruptcy trustee's sources of

25

information. Id., at pp. 517-518. Based on the information presented, the Court

26

could not conclude that the accused acted in a fraudulent manner. Id., at p. 518.

27
28
283065 . 1

Similarly, as in Lui Kin-Hong, Moghadam, D'Amico, Sauvage and Lehming,
based on the reasons presented in his Memorandum re Extradition and hereinbelow,
14
Petersen' s Rejoinder to Government's Reply Brief

 1

Mr. Petersen is entitled to present live witness testimony that explains the

2

government's evidence, as well as live testimony negating/obliterating probable

3

cause in its entirety. This evidence and testimony are admissible to establish that

4

there is insufficient evidence to support the government's allegations that

5

Mr. Petersen committed the crimes of embezzlement and tax evasion or that

6

Mr. Petersen acted with the specific criminal intent required under Danish and United

7

States/California jurisprudence.

8

A brief review of the proceedings in the extradition cases cited by the

9

government also establishes that live witness testimony is neither discouraged nor

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prohibited when it is properly limited to the issues cognizable at the extradition

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hearing. In Quinn v. Robinson, 783 F.3d 776 (9 th Cir. 1986), cited by government in

12

its Reply at pp. 7, 8, 9 and 18, for example, 20 live witnesses testified for the defense.

13

In Caltagirone v. Grant, 629 F.2d 739 (2 nd Cir. 1980), the extradition proceeding,

14

which involved a complex fraudulent bankruptcy, lasted 4 Y2 years. As in this case, it

15

required an extensive tracking of funds and assets to understand the relevant

16

transactions and the conduct of all involved parties. Ultimately, the extradition was

17

dismissed for lack of probable cause after it was proven that there was no fraudulent

18

bankruptcy.

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The 1972 United States-Denmark Extradition Treaty Does Not

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283065 . J

Cover Income Tax Evasion.

As explained in his original memorandum of May 24, 2002, Part III.D.l, at pp.

22

25-27, Mr. Petersen contends that the Danish extradition treaty does not authorize

23

income tax evasion as an extraditable offense. The Government in its Reply (p. 21)

24

insists in a single paragraph that income tax evasion is covered under a "plain

25

language" interpretation of the phrase "willful evasion of taxes and duties. " Reliance

26

on the plain language is not enough where it flies in the face of all prior treaties

27

between the parties and similar treaties in force during the same time period. The

28

term "taxes" is extremely broad, and its usage depends upon the context in which it is
15
Petersen 's Rejoinder to Government's Reply Brief

 1

placed. It can refer to sales tax, hotel taxes, customs, duties and tariffs, as well as

2

many local and municipal taxes. It is inconceivable that extradition would be

3

permissible for an individual who evaded payment of hotel taxes.

4

In Air Canada v. United States Department of Transportation, 843 F.2d 1483

5

(D.C. Cir. 1988), (cited by the Ninth Circuit in Bank Melli Iran v. Pahlavi, et aI, 58

6

F.3d 1406, 1408 (9 th Cir.1995), the Supreme Court decision in Maximov v. United

7

States, 373 U.S. 49, 54, 83 S. Ct. 1054, 1057, 10 L.Ed.2d 184 (1963), is cited for the

8

proposition that the clear import of treaty language controls unless "application of the

9

words of the treaty according to their obvious meaning effects a result inconsistent

10

with the intent or expectations of its signatories." Further, according to the rule in

11

Chan v. Korean Airlines, 490 U.S. 122, 134, 104 L.Ed.2d. 113,109 S.Ct. 1676 (1989)

12

that a treaty should be interpreted to its plain language, where the text is clear, "but

13

only if the language is unambiguous or if the plain meaning does not produce

14

"necessarily absurd" results. In Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S. Ct.

15

922, 926, 6 L.Ed.2d 218 (1961), it was noted that "when the operative terms have

16

some play, however, the reviewing court owes substantial deference to the

17

interpretation given by the administering agency to matters within its competence,"

18

and that "Although not conclusive, the meaning attributed to treaty provisions by the

19

Government agencies charged with their negotiation and enforcement is entitled to

20

great weight." Mr. Petersen will produce the testimony of Professor Lori Fisler

21

Damrosch to review and analyze the relevant legislative history materials which

22

substantiate that income tax violations are not extraditable under this Treaty.

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Here the term "taxes" is placed in the context of customs taxes in the U.S.-

24

Danish Extradition Treaty. This term is not contained in a separate category, or in a

25

category labeled "income tax violations." If the Treaty were intended to include

26

income tax violations as extraditable offenses, it would appear as a separate

27

enumerated category, labeled "income tax violation," but it is not; rather, it is

28

grouped together with smuggling and duties and therefore means violations of
16
Petersen ' s Rejoinder to Govemment's Reply Brief

 1

2

customs laws. This is the plain language of the Treaty.
This is a question of law; not mere argument. If the Government does not

3

agree with this reading of the plain language of the Treaty, then the Government has

4

the burden of proof to establish their suggested reading in the traveaux preparatoires,

5

or in the subsequent interpretation by the parties to this Treaty (case law).

6

(Restatement 3rd of the Foreign Relations Law of the United States) We have found

7

nothing in the traveaux preparatoires or in the cases pertaining to this particular

8

Treaty that substantiates the Government's position that income tax evasion is

9

included as an extraditable offense in the U.S.-Danish Extradition Treaty at issue.

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Professor Lori Fisler Damrosch is a professor of law at Columbia University,

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specializing in international law. She has practiced in the field of international law

12

for 25 years, since graduating from Yale Law School. From 1977 until 1981 she was

13

an attorney with the Office of the Legal Adviser to the United States Department of

14

State, and Special Assistant to the Legal Adviser from 1979 to 1981, where she

15

became fully familiar with U.S. practice in international law, including the law of

16

treaties and extradition. From 1981 to 1984 she was in private practice in a

17

New York law firm specializing in transnational and international litigation. She

18

joined the faculty of Columbia Law School in 1984, being promoted to tenure in

19

1989, and awarded the Henry L. Moses Professorship of Law and International

20

Organization in 1999. Prof. Damrosch has published widely in the field of

21

international law, including casebooks with chapters on treaty law and subchapters

22

relevant to extradition treaties in United States practice.

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willful evasion of taxes and duties" as used in the U.S.-Denmark Extradition Treaty is

25

"limited only to evasion of customs taxes and cannot be interpreted to cover income

26

tax evasion."

27
28
283065. 1

In Professor Damrosch' s expert legal opinion, the term "Offenses relating to

Professor Damrosch will explain the development of United States extradition
practice as to fiscal crimes and that as a general rule, U.S. extradition practice
17
Petersen ' s Rejoinder to Government's Reply Brief

 1

through all of the nineteenth and most of the twentieth century excluded tax crimes

2

from the category of extraditable offenses under extradition treaties. Further, while

3

gradually adding "pecuniary crimes" as new treaties were concluded or older treaties

4

were amended, tax crimes were never mentioned in these enumerations in the

5

nineteenth century, nor in the twentieth century until fairly recently.

6

Professor Damrosch will explain the background and significance of the

7

"revenue rule", pursuant to which courts of one country do not enforce another

8

country's tax laws, which is "the reason for the non-enumeration of tax crimes in the

9

lists of extraditable offenses". Professor Damrosch can explain research conducted

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by Harvard Law School relevant to the present issue, which analyzed patterns of state

11

practice regarding extradition treaties concerning the exclusion of fiscal offenses, and

12

explained that historically, fiscal offenses had not been treated as extraditable

13

offenses. She will also explain the significance of and reasons for this common

14

practice. She notes that this research ultimately recommended moving away from the

15

revenue rule and the corollary fiscal offense exclusion, but recognized that this

16

recommendation would entail quite a substantial departure from prevailing state

17

practice, especially of the United States and other common-law countries.

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"smuggling" as an extraditable offense and analyzes the United States-Danish Treaty

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as "an instance of customs offenses". Professor Damrosch will explain the manner in

21

which the "enumerative" model was followed for the 1972 U.S.-Danish treaty, with

22

no departure from prior practice. In explaining the significance of Article 3, Section

23

24(b) of this treaty which is at issue in this case, she will set forth the historical

24

counterparts to the "willful evasion" clause in previous smuggling clauses, such as

25

the 1925 U.S. Mexican treaty, the 1926 treaty with Cuba, the 1927 treaty with

26

Honduras, and the U.S.-Swedish treaty (1961), the U.S.-Brazil treaty (1962) and

27

U.S.-Israel treaty (1962), which enumerated smuggling and customs offenses as the

28

only revenue offenses covered as extraditable offenses.

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283065. 1

18
Petersen ' s Rejoinder to Government' s Reply Brief

 Professor Damrosch will explain that the 1972 U.S.-Danish treaty followed,
2

rather than departed, from prior practice. She will analyze the explanation given by

3

the Executive Branch regarding the changes added to this treaty in, "Message from

4

the President of the United States transmitting the Treaty on Extradition With

5

Denmark, Signed at Copenhagen on June 22, 1972, Exec. U (93 rd Congo 151 Sess., Oct.

6

30, 1973)," which does not mention income tax evasion (nor does any other

7

document from the Senate records concerning its advice and consent) Professor

8

Damrosch will state that if the U.S. Executive had understood this treaty to be the

9

first U.S. extradition treaty ever to deal with income tax offenses, it would surely

10

have mentioned this innovation in the paragraph dealing with significant offenses

11

added to the treaty.

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not mention any change in U.S. practice concerning revenue offenses. She will

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explain that the State Department subsequently published a statement concerning this

15

treaty in its annual report, indicating that it closely follows recent treaties entered into

16

with Italy, Paraguay and Uruguay, with no mention made of any change in U.S.

17

practice with respect to revenue offenses in general or income tax evasion in

18

particular. She will explain that the reference to the Paraguay treaty, which has a

19

smuggling clause but nothing else relevant to tax evasion, is further evidence that the

20

Danish treaty is to be understood as consistent with a customs tax interpretation of

21

the clause in question.

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treaties in force for the United States at the time of the negotiation of the U.S.-

24

Danish Extradition Treaty at issue herein and concludes that smuggling is the sole

25

precedent for the "willful evasion of the taxes and duties" clause contained therein.

26

283065. 1

Professor Damrosch will explain she personally review of all extradition

In Part V of her declaration, Professor Damrosch will explain that the U.S.-

27

Danish treaties on income tax evasion do not provide for extradition. The

28

Convention for the Prevention of Double Taxation and the Prevention of Fiscal
19
Petersen ' s Rejoinder to Government ' s Reply Brief

 1

Evasion with Respect to Taxes on Income, signed May 6, 1948, entered into force

2

December 1, 1948, operative January 1, 1948 for U.S. tax and April 1, 1948 for

3

Danish tax, 62 Stat. 1730, TIAS No. 1854; and the Convention for the Prevention of

4

Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on

5

Income, signed August 19, 1999, entered into force March 31, 2000, replacing the

6

1948 treaty, provide only for information exchange and administrative assistance, not

7

extradition.

8

Professor Damrosch will cite and explain the legislative history of these

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income tax conventions, noting that there is no hint anywhere in the Income Tax

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Treaty or its presentation to the Senate that the United States would be authorized to

11

arrest, detain or extradite a Danish taxpayer on criminal tax evasion charges. Rather,

12

the terms of the Income Tax Treaty negate any such implication. She will state that

13

the requirement that a revenue claim have been "finally determined" as a predicate to

14

collection assistance in the civil context is inconsistent with the idea that Denmark or

15

the United States could obtain extradition for an inchoate and unadjudicated charge

16

of income tax evasion. In her expert legal opinion, f the two states deliberately

17

stopped short of requiring civil and administrative collection assistance for income

18

tax claims that had not been "finally determined," they surely could not have

19

contemplated the much more onerous and intrusive mechanisms of arrest, detention,

20

and extradition for such claims.

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after the 1972 U.S.-Danish Extradition Treaty, specifically comparing the treaty

23

clause at issue. She will note the treaties enacted between 1977 and 1980 which

24

followed the U.S. -Danish model, and explain that they are consistent with the

25

analysis given above for the Danish treaty: in other words, what was contemplated

26

was the incremental addition of customs offenses of the smuggling type. There is no

27

mention of expansion of extraditable offenses to cover income tax evasion.

28
283065. 1

Finally, Professor Damrosch will explain and analyze U.S. extradition treaties

She will explain the recent shift in treaties of the 1980s to a "no -list"as
20
Petersen' s Rejoinder to Government's Reply Brief

 1

opposed to the enumerative type in the U.S.-Danish treaty, and that even with no-list

2

extradition treaties, transnational enforcement in respect of income tax offenses is

3

virtually unprecedented. She will explain that in the treaties of the 1990s and 2002

4

there is a shift to tax enforcement in aid of narcotics suppression, and shows the

5

example of the U.S.-Belize treaty, signed in March 2000, but not yet in force, which

6

clause is markedly different from the clause in the U.S.-Danish treaty.

7

As will be explained by U.S. legal expert, Professor Lori Fisler Damrosch and

8

by Danish legal expert, Bent Umark Larsen, of 1972 U.S.-Danish Extradition Treaty

9

does not cover income tax evasion.

10

III. LEGAL ANALYSIS

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identified with specificity the individuals whom he intends to call as witnesses to

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explain the facts and conclusions presented by the government in its charging

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documents and in the documents which the Government states that it intends to

15

introduce at the extradition hearing. Mr. Petersen has also proffered with

16

particularity the anticipated testimony of his witnesses in showing that their

17

testimony will place the government's "facts" in their proper context in providing an

18

innocent explanation as to their occurrence and as to their alleged materiality to the

19

charged offenses, for the purpose of negating and obliterating probable cause.

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As indicated in Petersen's previously filed briefs, the United States

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Government merely recites the statements in the various Declarations submitted by

22

Danish Prosecutor Poul Gade submitted in connection with the Kingdom of

23

Denmark's Request for Extradition of Mogens Amdi Petersen. Danish Prosecutor

24

Gade, in tum, relies exclusively on the "Case Summary as of 1 November 2001" to

25

substantiate his allegations against Mr. Petersen, which are claimed to constitute three

26

criminal violations under Danish Law consisting of tax evasion (one count relating to

27

his causing the Foundation's donors to claim improper deductions on their respective

28

tax returns, and one count relating to causing the Foundation to claim improper
21
Petersen ' s Rejoinder to Government's Reply Brief

 1

deductions on its tax returns) and embezzlement (for diverting the Foundation's

2

funds for improper and/or personal use).

3

An analysis of the Danish Prosecutor's Declarations, as well as the November

4

1,2001 Case Summary on which it relies, reveals that the Government's (and the

5

Kingdom of Denmark's) "case" against Mr. Petersen consists primarily of

6

conclusions and inferences, rather than facts , which cannot legally substantiate a

7

determination of probable cause by the Extradition Magistrate in these proceedings,

8

as in Sauvage and Lehming. Further, Mr. Petersen has the statutory and

9

constitutional right to explain such conclusions and inferences and to

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negate/obliterate probable cause through the testimony of witnesses (percipient and

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expert), subject to cross-examination by the Government if it so desires, and through

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the presentation of documentary and other evidence at the Extradition Hearing to be

13

held on August 19, 2002.

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to explain the Danish laws allegedly violated and the Danish statutory requirements

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imposed on the Foundation. Section 1 also describes the status of the Danish

17

government's investigation to date (including the seizure of70 computers allegedly

18

belonging to the Teacher's Group) and the conclusions drawn therefrom.

19

Section states that Danish police technicians "managed to make part of the material

20

in the secured computers readable" and were later able to make a systematic search of

21

this material. With only "part" of the material available for analysis, the

22

government's analysis and the conclusions and inferences drawn from this computer

23

generated information, has not been evaluated in its complete context, which can only

24

be explained by the percipient and expert witnesses in reference to relevant

25

documentation.

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For example, Section 1 of the Case Summary, entitled "Introduction" purports

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283065 . 1

Starting in Section 1 with the conclusion that "the charges in this case concern

27

embezzlement and tax fraud, ... ", Mr. Petersen can explain, through legal expert

28

witnesses the applicable Danish criminal procedure, that Mr. Petersen has not been
22
Petersen' s Rejoinder to Government's Reply Brief

 1

formally charged with any crime whatsoever, the elements and application of the

2

criminal laws cited, and the significance of the December 18, 2001 Danish Court

3

Order relied on by the Government to claim that these charges are substantiated. It is

4

noted in Section 3.5 that the "counts are still being investigated."

5

Section 2 of the Case Summary, entitled "Summary" is just that. It describes

6

the conclusions drawn by the Danish authorities, without any factual background.

7

For example, in this Section, it says the Tvind organization is "a hierarchically built

8

association with clear political aims, headed above all by the defendant Mogens

9

Amdi Petersen ... ". It also says that "de facto the defendants control the funds paid

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to the Foundation," and that the "Foundation made no allocations to public utility,"

11

that allocations have been made to enterprises or individuals whom the defendants

12

decided to favor, to procure for themselves or chosen third parties "unwarranted

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unwarranted allocations (which have not been specified), and that "defendants caused

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incorrect applications for support" and "incorrect reports on the use of the

17

Foundation's expenses," and "made seemingly independent associations apply for

18

support" when they were "controlled by the defendants and created for that purpose."

19

In this Section, it also says that on the basis of "incorrect, incomplete or misleading

20

information," the tax authorities, each year approved the Foundation as a recipient of

21

tax-privileged contributions and mistakenly approved the deductions under the

22

"pretext" they were for public utility purposes. There are no specificity of the facts

23

supporting these summarized conclusions in Section 2.

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283065. 1

The Government surmises and concludes that the Teacher's Group and the

25

Foundation are one and the same, and are bound by the same statutes and legal

26

requirements. The Government also relies heavily on the use of the term, "public

27

utility," to criminalize projects and donations by the Foundation (which it references

28

interchangeably with the Teacher' s Group as a whole). Mr. Petersen can explain
23
Petersen 's Rejoinder to Government's Reply Brief

 1

through documents and witnesses who are experts on Danish Foundation and Tax

2

Law, that the Foundation at issue is legally chartered and approved by the Danish

3

Government and that the Foundation and its donors have complied with all

4

requirements of the relevant and applicable Danish Tax Laws. Approximately 140

5

Declarations have been submitted by members of the Teacher's Group explaining

6

their intentional donations of income to the Foundation pursuant to legal

7

documentation and without coercion or duress.

8

Although the Government now accedes the propriety of the legal definition of

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be set forth by Petersen's expert witnesses at the Extradition Hearing in this matter

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(See Govt. Reply, at p. 3), the conclusions drawn throughout the Case Summary are

12

based on the alleged illegality of payments to projects related to commercial or non-

13

profit entities. Mr. Petersen will present the testimony of percipient witnesses who

14

will explain the manner in which tax returns were prepared, audited and submitted to

15

the Ministry of Taxation on behalf of the Foundation. He will present the testimony

16

of Danish legal experts to explain the propriety of the structure of the Foundation and

17

the manner in which it operated, the propriety of the projects and entities funded by

18

the Foundation, and thus the propriety under Danish law of the appropriations and tax

19

deductions taken therefor.

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Section 3 of the Case Summary, which purports to set forth the structure and

21

activities of the Tvind Teacher Group may be explained by evidence and witness

22

testimony to the extent that inferences and conclusions are drawn from the facts

23

derived from the "parts" of the computer material accessed by Danish authorities.

24

Through such testimony and evidence Mr. Petersen can explain the Teacher's

25

Group's structures and activities in their proper legal and complete factual context,

26

and thereby negate and obliterate probable cause. The government's description of

27

the alleged "hierarchy," "collective economy," "collective time," "collective

28

distribution," and its assessment, in Section 3.2, of the assets held by Tvind in 1995,
24
Petersen ' s Rejoinder to Government's Reply Brief

 1

as well as the statements in this section that Mr. Petersen organized the financial

2

structure of the Tvind Group via a network of bank accounts owned by companies

3

"placed in tax havens" can all be explained by percipient and expert witness. Danish

4

legal experts, Lida Hulgaard and Henrik Christup will differentiate the Tvind Group

5

as a separate entity from the Foundation at issue, to negate any criminal or nefarious

6

inferences and conclusions drawn by Danish authorities, and to place in proper

7

perspective and context the role and involvement of Mr. Petersen so as to obliterate

8

probable cause.

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In describing "The Tvind Management" in Section 3.3, the Government

10

claims that Tvind is organized in a strictly hierarchical structure with clear lines of

II

command, with Mr. Petersen and Kirsten Larsen on the top. Simply concluding,

12

from a few documents and purported statements which have never been provided,

13

and which have been taken out of context and purport to refer to an extended period

14

of time, that the Tvind organization (which the Government does not distinguish from

15

the Foundation) is "democratic" and "informal" does not equate with the conclusion

16

that an organization maintaining such a structure is illegal. Most organizations,

17

whether for the public good, and whether profit or non-profit, operate through a

18

hierarchical structure.

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There is no factual evidence to substantiate the Government's conclusions that

20

certain named persons "exert their influence" though "not ... formally elected to the

21

management of any company or foundation," and that there is an "informal power

22

structure, which exists in parallel with the formal group structure," or the extent of

23

the illegality inferred therefrom. Such conclusory assertions can be fully explained

24

by percipient and expert witnesses, such as Flemming Heegaard, who will explain all

25

applicable documentary evidence as to the leadership of the Foundation and its

26

decision making practices, to negate probable cause that Mr. Petersen was ever an

27

owner or director of the Foundation, formally or informally, or that he ever received

28

funds directly or improperly from the Foundation.

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25
Petersen's Rejoinder to Government's Reply Brief

 Section 3.4 states the "opinion of the police" that the "Humanitarian
2

Foundation" is managed directly by Petersen and Larsen. They claim to rely on

3

certain documents (which have not been produced) to support this conclusion, but

4

Mr. Petersen will explain by percipient and expert witnesses, with relevant

5

documentary evidence, how the Humanitarian Foundation is managed in a lawful

6

manner, and in so doing, negate any probable cause associated with this conclusion.

7

Percipient witnesses and expert witnesses, such as Poul Joergensen, Bodil Ross

8

Soerensen,Marie Lichtenberg, Snorre Westgaard, Dr. Marianne Thomsen, Dr. Bent

9

Faber Vestergaard, Jack Blackshear and Professor Gerald Bender, as well as many

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heads of state and national health ministries in Angola, Mozambique, Zimbabwe and

11

Botswana, will explain the propriety and benefits of the programs initiated by

12

Humana People to People, all grants and expenditures of funds to and by these

13

programs and projects and will explain their personal experiences regarding Humana

14

People to People and its programs in southern African countries.

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Section 3.5 states that the police investigation has shown that "allocations to

16

public interest purposes have in no case been made, but that the defendants have

17

attempted to conceal this." There is no factual support for this legal conclusion. A

18

review and tracing of all allocations, reporting and audited accounts by percipient and

19

expert witnesses with supporting documentary evidence can obliterate probable cause

20

on this issue by showing that the Foundation made legally proper allocations, by

21

following legally proper procedures to legally proper projects in pursuit of legally

22

proper purposes.

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28306S . i

As to remarks in the Case Summary regarding particular projects funded by the

24

Foundation, the main conclusions (apart from the commercial aspect of some of the

25

projects, which is conceded as proper by the Government, and which expert witnesses

26

can explain to be completely appropriate to enable the project to eventually operate

27

without depending on the Foundation for support), although made in the "opinion" of

28

investigating Danish police without proper or expert witness substantiation, appear to
26
Petersen's Rejoinder to Government's Reply Brief

 I

be that the projects did not involve "research," "protection of the environment" or

2

"humanitarian services" as they are purportedly required by applicable Danish law,

3

and the charter of the Foundation. Mr. Petersen can explain and negate these

4

erroneous suppositions through the testimony of percipient and expert witnesses and

5

complete documentary evidence set forth in appropriate context, that all projects

6

funded by the Foundation were for legally proper and appropriate purposes.

7

Section 4 pertains to "payments to promotion of research" and "allocations to

8

IFAS (the Institute for Scientific Research and Applied Sciences) in 1987-1992.

9

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implies impropriety in stating that it "appears from the statutes that IF AS intends to

11

cooperate both with commercial and non-profit partners." Mr. Petersen is not named

12

as a founder or Board Member. It is noted that IF AS was liquidated as of December

13

31, 1994. The summary refers to accounts in Exhibits which have never been

14

provided, and concludes, with no factual support, that IF AS is a "front organization

15

established and in reality managed by ... Amdi Petersen that does not carry out any

16

research projects", that there has in no point in time been any IFAS activity which

17

could be characterized as research and that IFAS has "only pro forma employees"

18

which were Teacher Group members or students. This section references a statement

19

by the deputy chairperson of IFAS, Anne Sophie Petersen, who has stated that Mr.

20

Petersen decided everything related to "IF AS' circumstances" and that she was

21

always told that the IFAS research projects should always receive funding from the

22

Foundation. Hans La Cour said that Mr. Petersen invented the whole idea for IF AS

23

and Oyvind Wi strom said that Petersen, Larsen and Bymer formulated the statutes for

24

IF AS and were behind the decision dissolving IF AS in 1993. This Section also says

25

that defendants attempted to keep back information about IF AS, without mentioning

26

Mr. Petersen, and Section 4.3.1.2 mentions certain exhibit groups alleged to pertain to

27

certain IF AS proj ects, which have never been provided.

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In Sections 4.3.2.2 it is concluded that "no form of research was carried out in
27
Petersen ' s Rejoinder to Government's Reply Brief

 1

connection with "One World Channel" and operation of "Return of the Marco Polo",

2

that because some support was given to an entity that operates a commercial TV

3

station, "it does not support public utility purpose". This Section concludes, based on

4

a letter and "statement" by Hans La Cour, who is claimed to have been "centrally

5

located" in the organization at some time, that "none of the crew members had any

6

qualifications for making research or producing television programs." Additionally,

7

this Section states that the Danish Ministry of Culture "could not make an

8

evaluation" of the research because a "normal scientific project description, list of

9

collaborators with scientific qualifications and CY's and documentation of how the

10

research results have been published in acknowledged publications" were missing

11

and says in this Section that Poul Jorgensen (former Chairman of the Board of

12

Directors of the Foundation) refused to provide this information. Mr. Jorgensen, and

13

other percipient and expert witnesses, such as Poul Jorgensen, Oeyvind Wistroem,

14

Marie Lichtenberg, Gitte Hector Nielsen, Dr. Samuel J. Noumoff, Dr. Frank

15

Andrews, Professor Ran Greenstein, T. Duncan Holmes, among others, will explain

16

the propriety and legitimacy of the research conducted, trace the funds expended by

17

and for these projects and explain Mr. Petersen' s involvement, if any, in the proper

18

and appropriate context. Hans Jorgen Lausten will testify that Mr. Petersen had no

19

ownership or control of the ship involved in this research, and of the funds expended

20

with regard thereto.

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In Section 4.3.2.2, it is inferred that because there may have been mixed

22

purposes for the voyages there was "no media research" carried out on board the ship

23

although the crew was instructed to prepare reports showing otherwise. Mr. Petersen

24

will explain by percipient and expert witness testimony and appropriate documentary

25

evidence, including tape recordings of the produced television programs, that

26

contrary to the investigators' inferences, research was conducted in these projects and

27

negate probable cause.

28
283065. 1

The statement in this Section, that "IF AS will fade from the picture" is taken
28
Petersen 's Rejoinder to Govemment' s Reply Brief

 lout of context to give a negative inference. Mr. Petersen will show that the programs
2

were used by the Tvind owned station (separate from the Foundation), by other

3

commercial stations, and about activities engaged in to try to make the ship self-

4

supporting without requiring further support from the Foundation.

5

The Case Summary also contains conclusions, without substantiating evidence,

6

that certain companies are merely front companies, and that certain companies were

7

paid for services that were not performed, or were remunerated in unjustified

8

amounts in this Section. As set forth in full detail in his Memorandum, percipient

9

and expert witnesses, can trace the funds and expenditures to and from the

10

Foundation and the research, environmental and humanitarian projects and show the

11

propriety and legality of same under the applicable Danish laws, and that Mr.

12

Petersen had no ownership or control. See, pp. 12 through 25 for the identification of

13

these percipient and expert witnesses and summarization of their proposed testimony

14

as to all projects at issue in this case.

15

IV. CONCLUSION

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The essence of the Court's desire in requesting that the parties submit briefs

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prior to the hearing was to enable the court to make a determination of whether live

18

witness testimony and evidence should be presented by the parties, or Affidavits

19

should be submitted at the August 19, 2002 extradition hearing to enable the court to

20

make the required probable cause determination. Mr. Petersen submits that it is

21

essential to present the testimony of live witnesses and documentary evidence at the

22

extradition hearing in this matter by which he can completely negate and obliterate

23

probable cause. Live witness testimony, as detailed in his earlier brief is essential to

24

provide a complete understanding of Mr Petersen's exemplary conduct and the

25

complicated and complex issues involved in this case, many of which require a

26

detailed translation, explanation and analysis by percipient and expert witnesses of

27

foreign law, definitions and use of key terms from within highly specialized areas of

28

knowledge and expertise and foreign documents and accounts spanning a period of

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29
Petersen 's Rejoinder to Government's Reply Brief

 time extending beyond ten years. Further these documents and issues pertain to
2

thousands of individuals, documents, organizations, entities and transactions

3

emanating from all over the world within this extended time period.

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Dated: July 3, 2002

ROBERT L. SHAPIRO
SARA CAPLAN
CHRISTENSEN, MILLER, FINK, JACOBS,

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Attorneys for MOGENS AMDI PETERSEN

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283065. 1

30
Petersen's Rejoinder to Government's Reply Brief

 2
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PROOF OF SERVICE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California; I am over the age of 18 and
not a party to the within action; my business address is 2121 Avenue of the Stars, Eighteenth Floor,
Los Angeles, California 90067.
On July 3, 2002, at the direction of a member of the Bar of this Court, I served the within:

6

MOGENS AMDI PETERSEN'S REJOINDER TO THE
GOVERNMENT'S REPLY TO PETERSEN'S MEMORANDUM OF
POINTS AND AUTHORITIES RE EXTRADITION;JlECLARATION
OF ROBERT L. SHAPIRO IN SUPPORT THEREO~

7
8
9

10

on the interested parties in this action, by delivering an original thereof in a sealed envelope
addressed to each of said interested parties at the following address( es):

11

12

SEE ATTACHED LIST

D

13
14

15
16

(BY MAIL) I am readily familiar with the business practice for collection and
processing of correspondence for mailing with the United States Postal Service. This
correspondence shall be deposited with the United States Postal Service this same day
in the ordinary course of business at our Firm's office address in Los Angeles,
California. Service made pursuant to this paragraph, upon motion of a party served,
shall be presumed invalid if the postal cancellation date of postage meter date on the
envelope is more than one day after the date of deposit for mailing contained in this
affidavit.

D

(BY OVERNIGHT DELIVERY SERVICE) I served the foregoing document by
Federal Express, an express service carrier which provides overnight delivery, as
follows. I placed true copies ofthe foregoing document in sealed envelopes or
packages designated by the express service carrier, addressed to each interested party
as set forth above, with fees for overnight delivery paid or provided for..

20

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(BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the
offices of the above-named addressee(s).

21

D

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(BY FACSIMILE) I caused such documents to be delivered via facsimile to the
offices of the addressee(s) at the following facsimile number: .
Executed this 3rd day of July, 2002, at Los Angeles, California.

I declare under penalty of perjury under the
foregoing is true and correct.

 SERVICE LIST
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The Honorable Victor B. Kenton
U.S. Magistrate Judge
U.S. DISTRICT COURT, CENTRAL DISTRICT OF
CALIFORNIA - WESTERN DIVISION
312 North Sprin~ Street
Courtroom H, 9t Floor
Los Angeles, California 90012
Telephone: 213/894-1831

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Matthew E. Sloan, Esq.
Assistant United States Attorney
UNITED STATES ATTORNEY'S OFFICE
Complaints Section
1200 U.S. Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: 213/894-3315
Facsimile: 213/894-0141