1 2 3 4 DEBRA W. YANG United States Attorney JOHN S. GORDON Assistant United States Attorney Chief, Criminal Division MATTHEW E. SLOAN (Cal. State Bar No. 1651 tfsI - 8 Assistant United States Attorney Complaints Sect ion 1200 United States Courthouse 312 North Spring Street Los Angeles, CA 90012 Telephone: (213) 894-3315 Facsimile: (213) 894-2427 9 At~orneys 5 6 7 10 --,,~ l r~:D::".'."!s:OURT ,"1"1 l I L:.~ ::__ '-~ / 'J _I.... .I .g~TfW. Dr."f;;";CT~<:~O~IA __ DEPUTY for Complainant UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT 12 FOR THE CENTRAL DISTRICT OF CALIFORNIA 14 IN THE MATTER OF THE EXTRADITION OF 15 MOGENS AMDI PEDERSEN 16 A Fugitive from the Kingdom of Denmark. 17 ";r~'? JUl. . 11 13 - -.---- No. CV 02-02220-GHK (VBK) UNITED STATES' REPLY TO PEDERSEN'S MEMORANDUM OF POINTS AND AUTHORITIES RE EXTRADITION; DECLARATION OF MATTHEW E. SLOAN; EXHIBITS DATE: August 19, 2002 TIME: 10:00 a.m. 18 19 20 21 Complainant United States of America, by and through its 22 counsel of record, the United States Attorney for the Central 23 24 District of California, hereby submits its reply to Petitioner 25 / / / 26 / / / 27 / / / 28 Mogens Amdi Pedersen's ("Pedersen" ) memorandum of points and 1 2 3 authorities opposing extradition. DATED: June 20, 2002 4 Respectfully submitted, 5 DEBRA W. YANG United States Attorney 6 7 8 9 10 11 12 13 Assistant U ' t d States Attorney Division i C'UftfJ MATTHEW E. SLOAN Assistant United States Attorney Complaints Section Attorneys for Complainant United States of America 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 TABLE OF CONTENTS 1 PAGE 2 3 TABLE OF AUTHORITIES 4 MEMORANDUM OF POINTS AND AUTHORITIES 5 iii 1 I. INTRODUCTION 1 I I . ARGUMENT 5 6 7 The Government Has Established All Five Elements for Pedersen's Extradition. · Pedersen Should Not Be Allowed to Introduce Testimony from Live Witnesses · 7 13 The Government's Evidence Was More Than Sufficient to Establish Probable Cause that Pedersen Committed the Crimes With Which He Has Been Charged · 8 14 1. 8 9 A. B. 10 11 12 C. 5 The Liberal Standard for Probable Cause Determinations 9 Pedersen May Not Present Evidence That Contradicts the Evidence Submitted by Denmark; He Is Only Entitled to Offer Evidence That Explains or Clarifies the Government's Evidence 9 15 16 2. 17 18 19 20 3. The Government's Evidence Establishes Probable Cause that Pedersen Committed Tax Evasion and Embezzlement 10 21 a. 22 23 24 b. 25 26 27 c. The Foundation's recipients did not use the Foundation's grants for legitimate "public utilityU purposes 10 Pedersen was the de facto leader of the Foundation 13 IFAS was not a legitimate "re search project U 13 28 i TABLE OF CONTENTS (Cont'd.) 1 PAGE 2 d. 3 4 La Societe Verte and L'Energie Eternelle illegally channeled donations from the Foundation back to Pedersen and the Tvind 14 5 E. 6 7 8 F. 9 The Court May Not Inquire Into the Political Motivations Behind Denmark's Request for Extadition 17 Pedersen's Extradition Is Authorized by the Treaty 19 1. 10 Pedersen has been "formally" charged for purposes of the Treaty . 19 The plain language of the Treaty specifically states that tax evasion is an extraditable offense . 21 There is dual-criminality between the Danish and American tax and foundations laws 21 11 2. 12 13 3. 14 15 16 17 IV 23 CONCLUSION . DECLARATION OF MATTHEW E. SLOAN 24 18 19 20 21 22 23 24 25 26 27 28 ii · TABLE OF AUTHORITIES 1 PAGE 2 3 Federal Cases: 4 In reo Assarsson, 635 F.2d 1237 (7th Cir. 1980) 5 6 20 Bingham V. Bradley, 241 U.S. 511 (1916) . . . 8 7 8 9 10 11 12 13 14 15 16 17 18 Chan V. Korean Air Lines, Ltd., 490 U.S. 122 (1989) 21 Charlton V. Kelly, 229 U.S. 447 (1913) .... Eain V. Wilkes, 641 F.2d 504 (7th Cir. 1981) 9 7, 9, 18 Emami V. United States District Ct., 834 F.2d 1444 (9th Cir. 1987) 20 Fernandez V. Phillips, 268 U.S. 311 (1925) . . . Koskotas V. Roche, 931 F.2d 169 (1st Cir. 1991) 9 18 Mainero V. Gregg, 164 F.3d 1199 (9th Cir. 1999) . . . . . 7 19 20 21 Messina V. United States, 728 F.2d 77 (2d Cir. 1984) 22 Quinn V. Robinson, 783 F.2d 776 (9th Cir. 1986) 23 Federal Statutes: 24 25 7, 9, 10, 13, 17 . 7, 8, 9, 18 Title 26, United States Code: Section 501 (c) (3) 22 Section 509 22 26 27 28 iii TABLE OF AUTHORITIES (Cont/d. ) 1 PA.GE 2 3 Miscellaneous: 4 5 Cal. Rev. & Tax Code: 6 Section 23701 22 7 Section 23708 22 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 , lV MEMORANDUM OF POINTS AND AUTHORITIES 1 I. 2 INTRODUCTION 3 4 5 In its opening brief, the United States presented concrete evidence that Pedersen and his co-defendants engaged in an 6 elaborate scheme to enrich themselves and evade taxes by 7 8 9 fraudulently "donating U tens of millions of Danish Kroner s from the Foundation's coffers to allegedly "benevolent U organizations 10 which were, in fact, 11 funnel money back to the Teacher Group and the defendants for 12 13 little more than front organizations to their own personal gain. Among other things, the government's evidence showed that Pedersen had de facto control over both the 14 15 16 17 Foundation and the Teacher Group and that the Foundation and its donees: • paid approximately DKK 8 million to an alleged rain forest conservation project in Malaysia , which in reality operated a commercial, "for profit U sawmill owned by Tvind that performed no work on nature conservancy (Gade Decl., ~ 35); • distributed approximately DKK 18 million to purchase a 170,000 hectare plantation in Brazil for the purpose of establi s hing a commercial, forprofit forestry operation to enrich the defendants and the Teacher Group (Gade Decl., ~~ 37-41); • illegally funneled approximately DKK 3 million to Tvind to purchase a school in Denmark by disguising the payment a s a donation for rain forest conservation (Gade Decl ., ~ 43); • paid approximately $95 , 000 to two consulting firms controlled by Pedersen , neither of which provided any legitimate consulting services (Gade Decl., ~ 18 19 20 21 22 23 24 25 26 27 28 1 47); and 1 • 3 purchased a $440,000 condominium for Pedersen and his spouse Kirsten Larsen ' s personal use in Miami, Florida (Gade Decl, ~ 48) 4 In sum, the government's evidence demonstrated that most, if 2 5 6 not all, of the DKK 85 million distributed by the Foundation between 1987 and 2000 was allocated to pure commercial 7 enterprises that played no legitimate role in furthering 8 9 research, nature conservancy or "benevolent" humanitarian Rather , in almost all 10 purposes as claimed by the Foundation. 11 instances, the Foundation's moneys were funneled back to entities 12 controlled by Pedersen, his co-defendants or the Teachers Group, 13 or used for Pedersen and his co-defendants' own personal gain . 14 Faced with this overwhelming evidence of probable cause, 15 16 Pedersen's reply brief seeks to distract the Court by raising a 17 series of peripheral legal issues and proposing to transform the 18 extradition hearing into a full-fledged mini-trial, complete with 19 testimony from 38 fact witnesses and purported experts . 20 ably, however, Pedersen has failed to submit a single declaration 21 Remark- or affidavit from these supposed witnesses, leaving the court 22 (and the government) with nothing to review but the unsub23 24 stantiated summary of his witnesses' proposed testimony provided 25 by Pedersen's attorney. This shortcoming alone dooms Pedersen's 26 case since he has failed to present even a scintilla of evidence 27 to the Court rebutting -- or explaining away -- the government's 28 2 evidence of embezzlement and tax evasion. 1 Given the strong 1 2 presumption against the presentation of live witnesses at an 3 extradition hearing, the Court should not even address Pedersen's 4 arguments, as they are unsubstantiated by any factual support. 5 In any event, Pedersen's claims are wholly without merit. 6 Pedersen's arguments fall into roughly four categories. First, 7 he attempts to distort the government's position by claiming 8 9 incorrectly that the government's whole case -is premised on the 10 mistaken belief that a foundation may never legally donate moneys 11 to a commercial enterprise. 12 fact, the government has never taken that position and agrees 13 with Pedersen -- at least for the purposes of this hearing -- 14 Opposition ("Oppos.") at 10. In that a foundation may make donations to a commercial enterprise 15 16 17 provided that the foundation takes steps to ensure that the funds are being used for a specific "common good" project being carried Supplementary Declaration of 18 out by the commercial enterprise. 19 Poul Gade ("Suppl. Gade Decl."), , 4. 20 supplementary declaration is attached hereto as Exhibit A) . 21 (A copy of this This interpretation does not save Pedersen or the Foundation from 22 criminal liability, however, because the Danish government has 23 24 25 26 27 28 Indeed, the only evidence that Pedersen has submitted thus far are the declarations from approximately 140 members of the Teacher Group, asserting that their donations to Tvind were made voluntarily. This evidence is totally irrelE~vant, however, because the government has never alleged that the contributions were coerced. 3 specifically alleged that the donations made by the Foundation 1 2 were not used for legitimate "benevolent" purposes, but were 3 instead diverted to Pedersen and his co-defendants for their own 4 personal gain. 5 6 Even Pedersen does not claim that this is legal. Second, Pedersen alleges that the Danish government is prosecuting him for purely "political" reasons and that he 7 therefore should not be extradited because he allegedly may 8 9 not be able to receive a fair trial in Denmark. Aside from 10 the fact that these allegations are totally false and are 11 unsubstantiated by any evidence (as Judge Manella has 12 already found), 13 it is well-settled legal doctrine that the extradition magistrate may not inquire into the political 14 motivations or the justice system of the requesting 15 16 government and should leave all such "political" questions 17 to the discretion of the executive branch. 18 Third, Pedersen raises a series of purported legal 19 challenges to his extradition, including his unsubstantiated 20 21 claims that (1) Pedersen has never been formally "charged" with an offense (even though no less than two Danish courts and two 22 23 24 judges in this jurisdiction -- Judge Manella and Magistrate Judge Hillman -- have already found to the contrary ) ; (2) that the 25 extradition treaty purportedly does not authorize extradition for 26 tax evasion (even though the Treaty expressly states that 27 "offenses relating to willful evasion of taxes" are 28 4 extraditable); and (3) · that there is no "duality of criminalityU 1 2 because there are purportedly no provisions for the creation or 3 tax treatment of foundations in the United States or California. 4 As the government demonstrates below, these arguments border on 5 the frivolous and merit little discussion. 6 Finally, Pedersen's counsel summarizes the anticipated 7 testimony -- and seeks permission to introduce live testimony 8 9 from over thirty different purported fact and expert witnesses, 10 whom he claims will undermine the evidence presented by the 11 government. 12 consider these arguments because Pedersen has failed to submit 13 14 As demonstrated below, the court need not even any declarations from these witnesses and there is a strong preference against the introduction of live testimony in 15 16 17 extradition hearings. Even if the court were to overlook these evidentiary roadblocks, however, the purported testimony of 18 Pedersen's proposed witnesses -- many of whom are "experts U with 19 little or no percipient knowledge -- do not undermine the 20 government's evidence and must be disregarded to the extent that 21 they seek to directly contradict the government's evidence. 22 II. 23 ARGUMENT 24 25 26 27 28 A. The Government Has Established All Five Elements for Pedersen's Extradition As discussed in the government's opening briEf, the United States must establish the following five elements to justify 5 Pedersen's extradition: (1) the extradition magistrate has 1 2 jurisdiction to conduct extradition proceedings; (2 ) the 3 extradition magistrate has jurisdiction over the fugitive; 4 extradition treaty is in force; 5 for offenses for which the applicable treaty permits extradition; 6 (3 ) an (4) the fugitive is being sought and (5) there is sufficient evidence to establish that the 7 fugitive is the same person charged in the request for 8 9 extradition and there are reasonable grounds to believe the 10 accused is guilty (i.e., the probable cause requirement) 11 Govt' Opening Brief ("Brief n 12 13 14 ) at 21-23 (citing cases). The United States established all five of these elements with credible evidence in its opening brief. See Brief at 31-34. Importantly, Pedersen does not dispute -- and therefore concedes 15 16 17 that the first three elements have been satisfied and that he is the same person charged in Denmark's request for extradition 18 (i.e., the first prong of element 5). 19 conceded (through his silence) that the Treaty permits 20 extradition for embezzlement (i.e., Count 1). 21 Moreover, Pedersen has only elements that remain is dispute are: Therefore, the (a) whether tax evasion 22 23 24 is an extraditable offense under the Treaty; (b) whether Pedersen has been "charged n for purposes of the treaty; and (c) whether 25 the government has established probable cause with respect to 26 both the embezzlement (Count 1) and tax evasion charges (Counts 2 27 and 3) against Pedersen. As demonstrated below, the government 28 6 has satisfied each of these requirements. 1 2 3 B. Pedersen Should Not Be Allowed to Introduce Testimony fro m Live Witnesses As discussed in the government's opening brief (Brief at 28 - 4 29 ) , extradition treaties do not contemplate the introduction of 5 6 live witnesses at an extradition proceeding either on behalf of 7 the government or the fugitive. 8 extradition proceeding is not a trial." 9 F.3d 1199, 1207 (9th Cir. 1999); see also 10 That is because "[a]n Mainero v. Gregg, 164 Eai~ v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981) (fugitive "is not entitled to a full 11 12 13 trial at the magistrate's probable cause hearing. That is the task of the civil courts of the other country."); Id. at 511 14 (stating that accused "has no right to contradict the demanding 15 country's proof" because that would "convert the extradition into 16 a full-scale trial, which is not to be."). 17 "The magistrate does not weigh conflicting evidence and make 18 factual determinations but, rather, determines only whether there 19 20 is competent evidence to support the belief" that the accused has 21 committed the charged offense. 22 8 1 5 (9th Cir. 1986). 23 proceeding, 24 25 Quinn v. Robinson, 783 F.2d 776, Indeed, "[a]s in the case of a grand jury [the fugitive] has no right to cross-examine witnesses or introduce evidence to rebut that of the prosecutor." Messina v. United States, 728 F . 2d 77, 80 (2d Cir. 1984). 2 26 27 28 2 The fugitive may, however, offer testimony through declarations that explains rather than contradictE the 7 Allowing or requiring live testimony from witnesses would 1 2 undermine one of the central purposes of extradition treaties, 3 which is to obviate the need to confront the accused with live 4 witnesses against him. 5 See Bingham v. Bradley, 241 U.S. 511, 517 (1916); Quinn, 783 F.2d at 815-816. 6 Given the limited purpose of extradition hearings, and the 7 strict limitations placed on the fugitive's ability to present 8 9 evidence contradicting the government's proof, this court should 10 prohibit Pedersen from introducing any live testimony at the 11 extradition hearing. ) 12 C. 13 14 The Government's Evidence Was More Than Sufficient to Establish Probable Cause that Pedersen Committed the Crimes with Which He Has Been Charged The Danish authorities have charged ~edersen with one count 15 16 of embezzlement (Count One) and two counts of tax evasion (Counts As demonstrated below (and in the government's 17 Two and Three) . 18 opening brief), the government has produced substantial evidence 19 that Pedersen committed all of these offenses, and Pedersen has 20 failed to produce any evidence "explaining" why the government's 21 22 23 24 25 26 27 28 government's evidence. Messina, 728 F.2d at 80. ) Moreover, to the extent that the Court allows Pedersen to present declarations in lieu of live testimony, the Court should require that (1) such declarations be strictly limited to declarations that explain, as opposed to contradict, the government's evidence (see section II(C) (2), infra) i and (2) should require Pedersen to file such declarations sufficiently in advance of the August 19, 2002 extradition hearing so that the government has ample time to prepare counter declarations, if necessary. 8 evidence is misleading. Accordingly, there is probable cause to 1 2 3 believe that Pedersen committed the offenses charged and he should be certified for extradition. The Liberal Standard for Probable Cause Determinations 4 1. 5 The standard of proof applied in extradition hearings is 6 very liberal in favor of extradition. "The magistrate does not 7 weigh conflicting evidence and make factual determination but, 8 9 rather, determines only whether there is competent evidence to 10 support the belief that the accused has committed the charged 11 offense." 12 extradition magistrate need only determine "'whether there was 13 14 Quinn, 783 F.2d at 815. Put another way, the any evidence warranting the finding that there was a reasonable ground to believe the accused guilty.'" Mirchandani, 836 F.2d at 15 16 17 1226 (emphasis added) (quoting Fernandez v. Phillips, 268 U.S. 311, 312 2. 18 19 20 (1925). The government has easily met that standard. Pedersen May Not Present Evidence That Contradicts the Evidence Submitted by Denmark; He Is Only Entitled to Offer Evidence That Explains or Clarifies the Government's Evidence As discussed in the government's opening brief, Pedersen may 21 22 not introduce evidence that contradicts or rebuts the evidence 23 submitted by the government. 24 25 447,462 (1913). See Charlton v. Kelly, 229 U.S. Nor does he have a right to cross-examine the government's witnesses, or attempt to undermine the credibility 26 27 28 of those witnesses . Messina, 728 F.2d at 511. 80j Eain, 641 F.2d at Rather, Pedersen may only offer evidence thct explains or 9 clarifies the government's proof. Eain, 641 F.2d at 511 ("An 1 2 accused in an extradition hearing has no right to contradict the 3 demanding country's proof or to pose questions of credibility as 4 in an ordinary trial, but only to offer evidence which explains 5 or clarifies that proof.") (citations omitted); Messina,728 F.2d 6 at 80. Notwithstanding this firm prohibition, most of the 7 testimonial evidence that Pedersen seeks to introduce directly 8 9 contradicts the government's evidence, and should therefore be 10 disregarded. 11 3. The Government's Evidence Establishes Probable Cause that Pedersen Committed Tax Evasion and Embezzlement 12 13 Pedersen challenges the government's assertion of probable First, he asserts that the 14 cause on several grounds. 15 government's entire case is based on the alleged misperception 16 that a foundation may never make donations to a "commercial" or 17 "for profit" enterprise. Second, he contends that he was not the 18 de facto leader of the Foundation. Third, he summarizes the 19 20 proposed testimony of numerous purported witnesses whom he claims 21 will prove that the foundation's recipients were engaged in 22 legitimate humanitarian, research or nature conservancy projects 23 (i.e., 24 25 "public utilities"). As demonstrated below, however, Pedersen's arguments -- and purported evidence -- fail on all accounts. 26 27 28 a. The Foundation's recipients did not use the Foundation's grants for legitimate "public utility" purposes 10 Pedersen's principal argument is that the government's 1 2 entire case is flawed because it is based on the mistaken be l ie f 3 that Danish tax law and foundation law prohibit a foundation from 4 taking any deductions for donations made to "for profit" or 5 "commercial" enterprises. 6 Pedersen's entire claim, however, is based on a misreading of a single line in the Danish prosecutor's 7 IS-page declaration, which Pedersen takes out of context and then S 9 10 11 12 13 14 uses as a straw man in a desperate attempt to tarnish the government's case. 4 In fact, as Pedersen's "experts" assert (see Oppos. at 911 ) -- and the government readily admits, of this hearing (see Suppl. Gade Decl. at least for the purpose (Ex. A), ~ 4) -- a foundation may make donations to a commercial, for-profit 15 16 enterprise provided "the funds are specifically used for public Suppl. Gade Decl., ~ 4; 17 utility ("common good") purposes." IS accord Oppos. at 10 ("such a grant does not constitute a 19 violation of Danish tax laws, provided the grant is actually 20 applied to the benevolent purposes to which it is 21 given.") (purported testimony of Pedersen's "expert" Henrik 22 Christup ) . More specifically, the foundation may make donations 23 24 25 26 27 2S 4 Contrary to Pedersen, the Danish prosecutor, Poul Gade, never stated that the Foundation was prohibited from making donations to a "commercial enterprise." Rather, he stated (correctly, as a matter of law ) that for the Foundation's donations to be legally deductible, they had to be used for "non commerical" purposes (as opposed to donated to "ncn commercial" enterprises). See Gade Decl., ~ 25. 11 to a commercial enterprise, but only if the foundation takes 1 2 steps to ensure that "the grant is being used for the specific· Suppl. Gade 3 'common good' project" for which it is allocated. 4 Decl . , 5 donation is used for the specific project as such -- and not 6 ~ 4 ("The accounts must show that the foundation'S generally for the operation and accumulation of reserves of the 7 commercial enterprise.") 8 Here, however, the government has presented evidence that 9 10 little -- or none -- of the donations made by the Foundation were 11 spent on legitimate "public utility" purposes, whether those 12 donations were made to "commercial enterprises" or purported non- 13 14 profits . See, ~, Gade Decl., ~~ 28-53 . Rather, most if not all of those donations were ultimately funneled back into the 15 16 17 18 pockets of Pedersen, his co-defendants or the Tvind organization. rd. As an example, the Foundation granted almost DKK 8 million 19 (via La Societe Verte ("LSV")) to a project in Malaysia that was 20 purportedly involved in nature conservation, but was in reality 21 used to support a commercial sawmill controlled by Pedersen and 22 23 24 owned by the Teacher Group. Gade Decl., ~ 35. While this donation might arguably have been legal if the sawmill was 25 engaged in a legitimate nature conservation project, as alleged 26 by LSV and the Foundation, two eye-witnesses, including the 27 appointed manager of the business, have specifica :_ ly stated that 28 12 -J no work on nature conservation was conducted on the site. Id. 1 2 3 4 5 6 Rather, "the project was a commercial one and was to yield a profit for LG's funds." b. Id. Pedersen was the de facto leader of the Foundation Pedersen has also indicated that he wants to present testimony from a purported lawyer and tax expert, Flemming 7 Heegaard, and from the former Chairman of the Foundation, Paul 8 9 Jorgensen, to establish that Pedersen has never been an owner or 10 director of or exercised de facto control ove~ the Foundatiori. 11 Oppos. at 12. 12 contradicts the testimony of the government's witnesses that 13 Pedersen was the de facto leader (Brief at 14; Gade Decl., ~~ 18- 14 However, since this purported testimony directly 19, 26-17), it may not be introduced by Pedersen. See Messina, 15 16 17 18 19 20 21 728 F.2d at 80 (fugitive "may not offer proof which contradicts that of the demanding country.") c. IFAS was not a legitimate "research project" Pedersen similarly seeks to present a series of lay and fact witness who could purportedly testify that, contrary to the government's evidence, IFAS/Voice of the Third World was engaged 22 in a legitimate research project. Oppos. at 12-16. To the 23 24 extent that Pedersen's witnesses directly contradict the 25 government's evidence, however, they must be disregarded. 26 importantly, none of Pedersen's purported evidence addresses 27 or undermines - - the government's evidence showin9 that the 28 13 More "funds from the Foundation were [ultimately] transferred back to 1 2 the Teacher Group via IFAS, the payments being disguised as 3 'research costs,' including (i) salaries for "researchers u who 4 had no training ' and who by virtue of their membership in the 5 Teacher Group had waived payment of salaries; 6 (ii) consultancy fees for J. F. Parsons, Inc., a commercial corporation controlled 7 by Pedersen, which in fact did not perform any consultancy tasks, 8 9 10 11 and (iii) payments to BB Shipping Ltd, another corporation controlled by Pedersen. d. 12 13 14 Gade Decl., ~ 31. La Societe Verte and L'Energie Eternelle illegally channeled donations from the Foundation back to Pedersen and the Tvind In its opening brief, the government presented evidence that between 1991 and 1996, the Foundation gr~nted approximately DKK 15 16 32 million to two French associations La Societe Verte and 17 L'Energie Eternelle, Paris -- which were allegedly independent 18 associations working in the field of nature protection. 19 16-18; Gade Decl., 20 tax returns that these French associations spent the funds 21 ~ 33. Brief at The Foundation asserted in its Danish received on three nature conservation projects: (a) a rain forest 22 23 24 conservation project in Malaysia; (b) the construction of a biogas plant in Tahiti; and (c) a rain forest conservation and 25 sustainable energy project on a plantation in Brazil. Gade 26 Decl., ~ 33. 27 the French associations were controlled by PedersE'n and that The government presented evidence, however, that 28 14 these purported conservancy projects were merely conduits to 1 2 channel money back to Pedersen and the Teacher Group. 3 34-41. 4 French Associations "camouflaged" payments made directly to 5 Pedersen, his co-defendants and the Teacher Group through the 6 The government also presented evidence showing how the preparation of fictitious applications and the filing of false 7 tax returns. Id., ~~ 42-53. 8 Pedersen tries to rebut this evidence by summarizing the 9 10 anticipated testimony of several lay and purported expert 11 witnesses, who offer conclusory opinions about the legitimacy of 12 these projects. 13 government's showing of probable cause even if the court allowed 14 This proposed testimony would not undermine the its admission, however, because none of Pedersen's witnesses are 15 16 17 able to explain the numerous examples of embezzlement and tax evasion set forth in the government's evidence. As an example, the government has presented evidence that 18 19 the French associations donated approximately DKK 8 million to a 20 purported rain forest conservation project in Malaysia. 21 Decl., ~ 35. Gade The manager of the project and one of the chief 22 23 24 accountants, however, have both told the government that the money was really spent to support a commercial sawmill owned by 25 the Teacher Group that performed no nature conservation role. 26 Id. 27 In response, Pedersen proposes to present testimony from a 28 15 purported expert, Morten Knudsen, who would testify about the 1 2 underlying idea behind the project as he understood it. Oppos. 3 at 19. 4 purpose behind the projects, however, would lead to the very type 5 of mini-trial that the limits on extradition hearings are 6 Allowing this type of testimony going to the underlying designed to prevent. Since Knudsen's testimony does not explain 7 why the commercial sawmill operated by Tvind was a legitimate use 8 9 for the Foundation's donation, his testimony must be disallowed. More importantly, Pedersen presents no evidence to rebut the 10 11 evidence that between 1991 and 1993, the French Associations 12 camouflaged nearly $1.7 million in payments though the 13 preparation of fictitious applications to the Foundation and 14 fictitious reports on the application of the funds. Gade Decl., 15 16 ~~ 52 - 53. These illegal and unaccounted for payments include the 17 distribution of approximately FF 2 million (approximately 18 $220,000) to Kirchheiner Bros., Ltd, a corporation controlled by 19 Pedersen, in 1991 and 1992 20 DKK 1,028,000 to Faelleseje (Common Ownership Fund), which owns 21 (Gade Decl., ~ 44); a distribution of the Tvind's real properties in Denmark, in 1992 (Gade Decl., 22 23 24 ~ 44); and a distribution of approximately $176,000 to Eastover Properties Ltd. and Furtherland Farming, Ltd., both of which are controlled by Pedersen, in 1993. 26 one of these cases (i.e., the distribution to Kirchheiner Bros., 27 Ltd.), Pedersen's close employee, Kirsten Fuglsberg, wrote that 28 16 Gade Decl., ~ 25 46. In at least she would instruct the French associations' accountant not to 1 2 mention these transfers in his audits of the French associa t ions. ~ 44. This is powerful evidence that Pedersen and 3 Gade Decl., 4 his co-defendants committed embezzlement and tax evasion and 5 Pedersen has failed to present any evidence to explain why this 6 evidence is not sufficient to establish probable cause. 5 7 E. 8 9 10 The Court May Not Inquire Into the Political Motivations Behind Denmark's Request for Extadition Pedersen also seeks to present "expert" testimony demonstrating that this prosecution is politically-motivated and 11 arose from the Danish establishment's purportedly long-standing 12 13 animosity toward Pedersen and the Tvind. Oppos. at 29-34. First, his 14 Pedersen's argument fails for two separate reasons. 15 claim is totally unsupported by the facts. 16 prosecutor, Poul Gade, has stated that "no politically motivated 17 The lead Danish instructions have been given to the prosecutors" and that the 18 "charges against Mr. Pedersen are being pursued solely because of 19 20 [the] objective evidence of his crimes, not out of any political 21 animus towards Tvind, the Foundation or Mr. Pedersen." 22 Gade Decl., ~ 4. Suppl. 6 23 24 25 26 5 Moreover, to the extent that Pedersen's proposed testimony purports to contradict the government's evidence, it must be disallowed. Messina, 728 F.2d at 80. Judge Manella reached the same conclusion in her April 2, 2002 Order ("Petitioner alleges that Denmark's prosecution is motivated by political concerns. The record contc .ins nothing to suggest that Denmark's prosecution is motivated b) · anything other 6 27 28 17 More importantly, pursuant to the judicial "non-inquiry" 1 2 doctrine, "United States courts. generally have held that ·the . are matters for the 3 motives of the requesting government 4 Executive Branch rather than the Judicial Branch." 5 Roche, 6 Koskotas v. 931 F.2d 169, 173 (1st Cir. 1991) (citations omitted) also Brief at 30-31. i see This is because "[e]xtradition proceedings · 7 are grounded in principles of international comity, which would 8 9 be ill-served by requiring foreign governments to submit their 10 purposes and procedures to the scrutiny of United States courts." 11 rd. 12 State has sole discretion to determine whether a request for 13 14 (citations omitted.) For these reasons, "the Secretary of extradition should be denied because it is a subterfuge made for the purposes of punishing the accused for a political crime." 15 16 Quinn, 783 F.2d at 789. 7 17 18 19 20 21 22 23 24 25 26 27 28 than evidence that Petitioner has committed embezzlement and tax evasion . ") A copy of Judge Manella's April 2 Order is attached hereto as Exhibit B. 7 While the Treaty provides an explicit exemption from extradition for "a political offense or an offence connected with a political offense," (Treaty (Ex. C) , Art. 7(4 )) , the courts have consistently held that "[t]he operative definit i on of 'political offenses' under extradition treaties as construed by the United States limits such offenses to acts committed in the course of and incidental to a violent political disturbance such as a wa~, revolution or rebellion." Eain, 641 F.2d at 518 (citations omitted) . Since the crimes charged against Pedersen do not arise out of such a violent political conflict, the . "political offense" exception in the Treaty does not even arg~ably apply. 18 1 2 3 F. Pedersen's Extradition Is Authorized by the Treaty 1. Pedersen has been "formally" charged for purposes of the Treaty Pedersen's claims that he cannot be extradited because he 4 5 6 7 8 9 10 has not been formally "charged" with a crime, pursuant to Article 2 of the Treaty, and that he has not been "committed for trial," pursuant to Article 11 of the Treaty, are wholly without merit. (A copy of the Treaty is attached hereto as Exhibit C) . 8 First, the government has presented abundant evidence that Pedersen has, in fact, been charged with embezzlement and tax 11 12 13 evasion, as recognized in Judge Manella's April 2 Order (Ex. B at 16-18) . Among other evidence, Judge Manella noted that Denmark's 14 formal extradition request, a letter from Denmark's Ministry of 15 Justice to the American Ambassador to Denmark, and at least two 16 Danish courts had all recognized that Pedersen had been "charged" 17 with offenses. Moreover, the lead Danish Prosecutor, Mr. 18 Gade, has specifically stated that Pedersen has been charged with 19 20 embezzlement and tax evasion of a particularly aggravated nature ~~ 21 (Gade Decl., 6-8), and that the indictment charging Pedersen 22 "has been drafted" and will be filed as soon as Mr. Pedersen's 23 co-defendants have been afforded an opportunity to make 24 25 26 27 28 A copy of the Treaty was previously submitted to the Court as part of Ex. A to the United States' Filing of Original Formal Extradition Papers and Request for Extradition, on March 18, 2002 (see Ex. A at 10-25) This additional copy is provided for the court's convenience. 19 statements to the police. Suppl. Gade De cl . , ~ 9. 1 Moreover, the government need not even show that Pedersen 2 Courts have 3 has been formally "charged U to s atisfy the Treaty. 4 consistently interpreted extradition treaties similar to the 5 Treaty here to require only that the requesting nation have 6 " accused u the fugitive of a crime or firmly expressed its intent 7 to prosecute him, not that it has formally "charged U him with an 8 9 offense. See ~, Emami v. United States Dist. Ct . , 834 F.2d 10 1444, 1448-49 (9th Cir. 1987) (holding that the requesting state 11 need only represent that the petitioner "is wanted for 12 prosecution,u not that he was formally charged); In re o 13 14 Assars s on, 635 F. 2d 1237, 1241-44 (7th Cir. 1980); Apr.il 2 Order (Ex. B . ) at 18-20. 15 Pedersen's claim that he is not subject to extradition 16 17 because he has not been " committed for trial u in Denmark is 18 specious and is based on a flagrant misreading of Article 11 of 19 the Treaty. 20 request for extradition is made for a fugitive who has not yet 21 Article 11 of the Treaty states only that when a been convicted, the request must be accompanied by a warrant of 22 23 24 arrest and by such other evidence as "would justify [the fugitive's] arrest and committal for trial if the offense had 25 been committed" in the requested country. Treaty (Ex. C), Art . 26 11 . 27 requirement that Pedersen have been "committed for trial" by the Therefore, contrary to Pedersen's claims, there is no 28 20 Danish authorities prior to his extradition. 9 1 2 3 2. The plain language of the Treaty spec i fically states that tax evasion is an extraditable offense Pedersen's claim that the Danish extradition · treaty does not 4 5 6 authorize extradition for income tax evasion defies belief. Pedersen asserts that, although Article 3(24) (B) of the Treaty 7 expressly states that a fugitive may be extradited for 8 "[o]ffenses relating to willful evasion of taxes and duties,u tax 9 evasion is not an extraditable offense, purportedly because tax 10 evasion was not specifically mentioned in the minutes from the 11 12 13 the Danish Foreign Office regarding the negotiation of the Treaty. See Oppos. at 27. It is well-settled, however, that in 14 construing treaties, the plain language of the treaty controls, 15 absent any ambiguities in the language. 16 Lines, Ltd., 490 U.S. 122,130 (1989 ) . 17 Chan v. Korean Air Here, the plain language of the Treaty clearly and unambiguously states that tax evasion 18 (i.e., "offenses relating to willful evasion of taxes U) is an 19 20 21 extraditable offense. 3. Treaty (Ex. C), Art. 3(24) (B). There is dual-criminality between the Danish and American tax and foundat i ons laws 22 23 24 Finally, Pedersen alleges that he may not be extradited to Denmark because the "dual criminalityU requirement, encompassed 25 26 The only requirement is that this court find that the evidence presented against Pedersen is sufficient to "justify his committal for trial u before he is actually extradjted to Denmark. See Treaty (Ex. C), Art. 6. 9 27 28 21 by Article 3 of the Treaty, has not been satisfied. oppos. at 1 2 28 - 29. More specifically, Pedersen alleges that because there 3 "is no provision in the [United States] tax laws for either the 4 creation or the tax treatment" of a public utility, such as the 5 Foundation here, the Danish tax evasion charges against the 6 Foundation "could not result in a conviction in the United 7 States, and the requirement of dual criminality cannot be 8 9 10 satisfied." Oppos. at 29. Contrary to his Pedersen is just flat out wrong, however. 11 statements, Sections 501(c) (3) and 509 of the United States Tax 12 Code expressly address the formation and tax treatment of 13 14 charitable foundations, and like the Danish tax code, provide for tax exemptions providing the foundations comply with certain 15 16 17 requirements. 26 U.S.C. § 501 (c) (3) (stating that a "foundation, organized and operated exclusively for religious, charitable, 18 scientific" or other specified public utility purposes shall be 19 exempt from taxes under certain circumstances); 26 U.S.C. 20 (defining a private "foundation"). 21 § 509 The state of California has similar tax provisions governing the tax treatment of non-profit 22 23 24 foundations. See, e.g., Cal. Rev. & Tax Code §§ 23701, 23708. Both the United States and California, similarly, have provisions 25 for criminally prosecuting foundations and their directors, 26 officers and leaders who violate the tax laws by making false 27 statements on the foundation's tax returns, as Ped.ersen has here. 28 22 IV 1 CONCLUSION 2 3 4 5 For the foregoing reasons, the United States requests the certification of the fugitive, Mogens Amdi Pedersen, for extradition to Denmark because each of the elements required for 6 extradition has been met. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 DECLARATION OF MATTHEW E. SLOAN 1 I, Matthew E. Sloan, declare as follows: 2 3 1. I am an Assistant United States Attorney for the 4 Central District of California, and am currently assigned to 5 handle matters relating to the extradition request made by the 6 Kingdom of Denmark regarding Mogens Amdi Pedersen ("Pedersen " ). 7 I make this declaration in support of the United States' reply to 8 9 10 Pedersen's opposition to extradition. 2. Attached hereto as Exhibit A is a true and correct copy 11 of the Supplemental Declaration of Poul Gade, the lead Danish 12 prosecutor on this matter, dated June 20, 2002 13 Declaration") . ("Suppl . Gade The original, signed copy, complete with ribbons 14 and seal, will be filed with the Court forthwith as soon as it 15 16 17 has been received through the diplomatic channel. 3. Attached hereto as Exhibit B is a true and correct copy 18 of District Judge Nora M. Manella's Order Denying Pedersen's 19 Petition to Set Aside Magistrate Judge Hillman's Order Denying 20 21 Bail, which was filed on April 2, 2002. 4. Attached hereto as Exhibit C is a true and correct 22 23 copy of the extradition treaty between the United States and the 24 Kingdom of Denmark, which was previously filed with this court as 25 part of the United States' filing of the original formal 26 extradition papers on March 18, 2002. "27 28 24 5. I declare under penalty of perjury that the foregoing 1 2 3 lS true and correct and that this declaration was executed in Los Angeles, California on this 20th day of June, 2002 \ ) i 4 5 6 MATTHEW E. SLOAN Assistant United States Attorney 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 2U U6 2UU2 15 : 1 9 FAX IlECLARA TIQN OF POUL GADE I, Poul Gade, hereby declare: 1. 1 am a Danish citizen resident in Aarhus, Denmark. I have previously made two declarations dated March 14,2002, and April 22, 2002, to the United States District Court, Central District of California, in connection with the proceedings for the extradition of Mogens Amdi Pedersen. Donations to Commercial Enterprises 2. In my declaration dated April 22, 2002, I have stated in paragraph 23 - 25: "23 . Under the Danish Tax Code, the Foundation must pay taxes on all donations recelved from the members of the Teacher Group, but it may make deductions for monies expended on the public utility purposes just mentioned, cf. section 4(1) and section 4(4) of the Danish Foundation Taxation Act. Based on its false assertions that it was · allocating its funds to legitimate charitable and research projects, the Foundation has failed to pay any taxes from 1987 to the present, despite receiving over DKK 70 million in contributions and accruing approximately DKK. 5 million in interest income from the contributions, cf. Exhibit 12-2, pp . 1 - II. 24. The scope of lawful application of the Foundation's funds is defined by (i) the Foundation's bylaws; (ii) section 12(3) of the Danish Assessment Act; and (iii) section 4 of the Foundation Taxation Act. 25 . The tax returns submitted by the Foundation from 1987-1999 state that all funds in the Foundation have been paid for limflll purposes, i.e. for purposes which are (i) "public utility pUIposes", i.e. non-commercial purposes which "will benefit a broad undefined group and which in the general opinion of society are usefof'; (ii) and which are also humanitarian, promote research or protect the natural environment" , 3. In Pedersen' s memorandum page 9 it is indicated that this statement is misleading. According to the memorandum, Danish legal experts have declared that donations to commercial enterprises are lawful. 4 . For the purpose of this extradition proceeding only, the Danish Government will stipulate that the current Danish legislation governing foundations, read in conjunction with the Founda tion's bylaws, makes it lawful E(HIBIT If "t- I " under certain conditions for a foundation., approved according to Section 12 (3) of the Tax Assessment Act. to distribute funds to a commercial enterprise. It is a firm condition, however, that the foundatIon must ensure, in connection with' each grant, that the funds are specifically used for public utility ("common good") purposes within the scope of the objects of the foundation. This can be ensured, for example, by the granc being used for a specific "common good" project which is carried out by a commercial enterprise, and in respect of which detailed accounts are prepared. The accounts must show that the foundation's donation i::; uscd for the specific project as c;uch - and not generally for the operation and accumulation of reserves of th e conunercial enterprise. 5. The Danish Supreme Court has previously held that Ii foundation is not entitled to makc Ii non-specifi c grant to a commercial enterprise, since such a grant would be in the nature of financial assistance for a financial or commercial purpose, cf. Supreme Court Judgements reported in Danish Tax Law Journa l TfS 1999.728 H, TiS 1996.314H and TfS 1991.395 H. 6. As stated in my declaration of April 22, the police investigation in this case has shown, that the applications, reports and accounts concerning the Foundation's donations to commercial enterprises are fictitious, false or willfully misleading. The funds have not de facto been used for public utility purposes. Rather, they have been used by Pedersen and his co-defendants for their own personal gain and in order to support commercial enterprises they controlled, which do not further publie utility purposes. 7. Therefore, the Foundation's donations do not qualify for tax deductions pursuant to Section 4 (1) of the Danish Foundation Tax Act. The tax deductions made by the donors were also illegal because. as demonstrated above, the Foundation distributed its funds to various commercial enterprises owned and operated by Pedersen. his co-defendants or the Teacher Group. Accordingly, the Foundation was not entitled to tax exempt status under the Danish Tax Code and the Teacher Group memben; were not entitled to deduct these donations from their taxable income. Since these facts were deliberately conceived by Pedersen and his co-defendants, Pedersen is properly charged for violating Section 289 of the Danish Criminal Code (Counts 2 and 3) as well as Section 278 (Count 1). The Proceedings Aeainat Pedersen Are Not Politically Motiyated 8. The charges against Pedersen and his co-defendants are based on objective evidence produced in a traditional ' police investigation. No politically motivated instructions have been given to the public prosecutors or to the police officers involved in this case. The objective evi,:ience shows that millions of Danish Kroner have been transferred illegally from the Foundation for unlawfl tl purposes. These acts would 2 , ' £ 11 11 .. constimte embezzlement and tax evasion regardless of who committed them. TIle charges against Mr Pedersen are being pursued solely because of this objective evidence, not out of any political animus towards Tvind. the Foundation or Mr. Pedersen. fresent Status of the Case 9. The Chief Constable of Holstebro and The Public Prosecutor for Serious Economic Crime have informed Mr. Pedersen by letter, dated June 19,2002, that he will soon be indicted. This decision was approved by the Public Prosecutor in Aalborg on June 19. 2002. Under Danish Criminal Procedure, it is the duty of the Prosecutor, at his or her own discretion, to file the indictment ("Anklageskrift'j. The grand jury-system does not exist in Derunark. The indictment has been drafted., but will not be issued ("filed") to the Court until all the defendants have had the opportunity to make statements to the Police. 10. The Prosecuter is prepared to begin the trial against Mr. Pedersen and his co-defendants by as early as October 2002 and has informed the Court of the same. However, the defense counsel retained by Mr. Pedersen and his co-defendants have declared that they will be unable to prepare the defense and appear in Court before February 2003. AccordiniJy, the Court in Ringkebing has declared that the trial will begin in February or March, 2003. ll. I declare under penalty of perjury that all the information contained in this declaration concerning the facts of the case and concernini the applicable Danish law are accurate and correct and given to the best of my knowlcdge and belief. If! was summoned as a witness I could and would testify competently thereto. Done i E~glis~hus, jkn 20 June 2002 C/ I - -- -.1.. . .', . Poul Gade '\. ' .... • - .. / , -J.Jj f ( -. 3 FILED CLERK. U.S . DISTFiICi COUF T 1 I ! 2 ! 3 CE~JTRAL D!STRICT OF CALlFOF NIA BY 4 DEFUTY 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRlCT OF CALIFORNIA 10 11 CASE NO. CV 02-031SM IN THE MATTER OF THE EXTRADITION OF 12 13 14 . 15 MOGENS AMDI PEDERSEN, ORDER DENYING PETITION TO SET ASIDE MAGISTRATE JUDGE HILLMAN'S ORDER DENYING BAll.. PENDING EXTRADITION A fugitive from the Kingdom of Denmark. 16 17 · 18 I. INTRODUCTION Mogens Amdi Pedersen ("Petitioner") was provisionally arrested pursuant 19 to a request by the Kingdom of Denmark ("Denmark"). Magistrate Judge Stephen 20 Hillman subsequently ordered that Petitioner be held without bail. Petitioner now 21 requests that this court review Judge Hillman 's order denying bail. 22 23 24 -- I, ll. FACTS On December 18, 2001, the Court in Ringkobing, Denmark ("Ringkobing 25 Court") issued an order for the arrest of Petitioner. Sloan Decl., Ex. D. Danish 26 prosecutors allege that between 1987 and 2000, Petitioner embezzled 27 approximately $8.8 million and directed a tax evasion schelne resultirig in tax 28 revenue losses of over $7 million. Id., Ex. C (Gade Decl.) 'Ml8-IS; Government's ; E{HIBIT 8 1 Brief at 3. After a hearing at which Petitioner was represented, the Ringkobing 2 Court detennined that "there is"probable cause to suspect that . .. there has been a 3 violation ... of section 289 of the Danish Criminal Code, cf. section 13 of the Tax 4 Control Act in connection with [petitioner's] Foundation's tax returns .. " The 5 Court consequently finds that there is probable cause to suggest that the defendant 6 has contributed decisively to the assumed violations." Shapiro Decl., Ex. C. The 7 Ringkobing Court's finding was based upon "objective data, which with 8 considerable strength point against the defendant as 9 he is charged." Id., Ex. C (Gade Decl.) ~ 7 (citing ''Bernhard Gomard: gui~ty of the crime with which 10 Straffeprocessen, Copenhagen 1976, page 209"). The Ringkobing Court ordered 11 that Petitioner be arrested and held, labeling him a flight risk. Petitioner appealed 12 the Ringkobing Court's order, and Denmark's Western High Court ("Western 13 High Court") upheld the lower court's ruling. Pursuant to an Interpol report, Petitioner was detained Friday, February 16, 14 15 2002 while changing planes at the Los Angeles International Airport. Id. ~~ 15- 16 16. Petitioner, a Danish citizen who claims to reside in Zimbabwe, was en route 17 to Mexico from the United Kingdom. lit ~ 16. 1 The following Monday, February 18 18, Denmark requested that Petitioner be provisionally arrested, pursuant to the 19 Extradition Treaty Between the United States and Denmark. Sloan Dec!., Ex. H. 20 That same day, the United States Attorney's Office for the Central District of 21 California ("the Government") filed a complaint seeking Petitioner's provisional 22 arrest pending extradition to Denmark. Id. 23 the Government proffered: 1) a copy of the Extradition Treaty Between the United ~~ 9-10. In support of its complaint, . 24 25 -- 26 27 28 According to the provisional arrest complaint, INS agents initially detained Petitioner when a passport check revealed an outstanding warrant for his arrest from Denmark. Complaint for Provisional Arrest at 4. The FBI took Petitioner into custody the f. :.llowing morning, after confinning that Petitioner was the Mogens Amdi Pedersen named in t :le Interpol search report. Jd. I 2 States and Denmark ("the Treaty"); 2) Denmark's request for a pr~visional arrest; 2 3) The Ringkobing Court's arrest order; 4) the order from the Western High CoUrt 3 upholding the Ringkobing Court's order; and 5) a 32-page summary of the 4 evidence against Petitioner, prepared by Danish prosecutors. Complaint for 5 Provisional Arrest; Government's Brief at 8. Tbatsarne day, Magistrate Judge 6 Stephen Hillman signed an order finding probable cause to arrest Petitioner and 7 issued a warrant for his provisional arrest. United States v. Pedersen, No. 8 02m00315, Doc. No. 1; Sloan Decl., Ex. 1. 2 On February 19,2002, Petitioner made an initial appearance with his 9 10 American counsel, who requested that Petitioner be released on bail pending 11 extradition proceedings. Judge Hillman denied Petitioner's request but ordered 12 additional briefing on whether, pursuant to Wright v. Henkel, 190 U.S. 40 (1903), 13 any "special circumstances" existed that would justify his release on bond. 14 Shapiro Decl., Ex. Bat 1. On February 21,2002, the Danish Foreign Ministry 15 submitted a formal Request for Extradition to the American Embassy in 16 Copenhagen.3 Sloan Decl. ~ 11, Ex. J. 17 Magistrate Judge Hillman conducted a detention hearing February 22, 2002. 18 Shapiro Decl. ~ 3, Ex. A .4 Poul Gade, the Danish public prosecutor in charge of 19 the case against Petitioner, was present along with Petitioner's American counsel, 20 Mr. Shapiro, and his Danish defense attorney, Joergen Quade Andersen. 14., Ex. 21 A. After an extensive hearing, Judge Hillman found that: 1) criminal charges had 22 23 24 Although the Government proffered an unsigned copy of Magistrate Judge Hillman's order issuing a provisional arrest warrant, the court file contains a signed copy of the order. Petitioner does not dispute that Magistrate Judge Hillman signed the order .. 2 25 26 3 The Government filed Denmark ' s official Request for Extrad.ition with the court March · 18, 2002. 27 28 • The front page of Petitioner' s hearing transcript erroneously :;tates that it was conducted February 21 , 2002. It is undisputed that the hearing occurred FebruaJ: 122, 2002. JI 1 been "filed" in Denmark against Petitioner; 2) Denmark had made a fonnal 2 Request for Extradition; 3) Pedtioner conceded that the Request for Extradition 3 appeared facially valid, satisfying the requirements of Article 11 of the Extradition IJ Treaty between the United States and Denmark ("the Treaty"); 4) no probable 5 cause finding was required, as a formal Request for Extradition had been filed; 6 5) Petitioner had shown no "special circumstances" warranting release pending his 7 extradition hearing; and 6) Petitioner was a "serious flight risk." Sloan Decl., Ex. 8 K (Judge Hillman's Order Denying Bail). . 9 On March 7, 2002, Petitioner requested that this court review Judge 10 Hillman's or.der denying bail. Petitioner argues that: 1) his provisional arrest 11 violated the Fourth Amendment of the U.S. Constitution because there was no 12 finding of probable cause; 2) his provisional arrest violated the Treaty because 13 there was no finding ofpr.obable cause; 3) his continued detention violates 14 Fifth Amendment due process rights; and 4) Judge Hillman erred as a matter of 15 law in failing to find special circumstances warranting his release pending an 16 extradition hearing. his 17 18 m. 19 A. This Court IS Jurisdiction 20 LEGAL STANDARD Neither Petitioner nor the Government adequately addresses whether this 21 court has jurisdiction to adjudkate a "Petition for Judicial Review of Magistrate's 22 Denial of Bail." Other courts have held that a district court has no jurisdiction to' 23 review such a motion pursuant to the Magistrate ' s Act, 28 U.S.C. 24 § 631 et seq. , or 18 U.S.C. § 3184. See. e.g. , In re Extradition of Siegmund, 887 F. 25 Supp. 1383, 1384-85 (D. Nev. 1995). Petitioner contends that this court has 26 discretion to review Magistrate Judge Hillman ' s order pursuant to Local Rule 27 2.18.4, which permits the criminal duty judge to review a rr..agistrate judge's order 28 denying bail in a criminal case. However, it is unclear whe : 1er this rule applies to 4 an order denying bail in an extradition proceeding, which is not criminal in nature, 2 See Martin. v. Warden, 993 F1d 824, 828 (11 th Cir. 1993); Valencia v. Limbs, 655 3 F.2d 195,198 (9th Cir. 1981). Regardless, bail determinations by a magistrate 4 judge prior to an extradition hearing are reviewable by habeas petition. 28 U.S .C. 5 § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless . . . 6 (3) He is in custody in violation of the Constitution or laws or treaties of the 7' United States."). See also Wright v. Henkel, 190 U.S. 40 (1903) (Court reviewed 8 appellate court decision reviewing habeas petition concerning decision by 9 magistrate judge to deny bail to petitioner pending his extradition hearing); In re 10 Extradition of Siegmund, 887 F. Supp. at 1384-85; Koskotas v. Roche, 740 F. 11 Supp. 904,918 (D. Mass. 1990), affd, 931 F.2d 169 (1st Cir. 1991); In re 12 Extradition of Russell, 647 F. Supp. 1044 (S.D. Tex. 1986), affd, 805 F.2d 1215 13 (5th Cir. 1986). Accordingly, this court construes the instant petition as one for a ", , writ of habeas corpus. 14 15 16 17 B. Standard of Review Neither Petitioner nor the Government address the legal standard under 18 which this court should review a magistrate judge's order denying bail in an 19 extradition proceeding. Although a district judge reviews a magistrate judge's 20 detention or release detennination de novo with respect to individuals 21 with committing crimes in the United States, the Bail Reform Act of 1984, 18 22 U.S .C. § 3141 et seq., does not apply to extradition matters. See United States v." 23 Leon, 766 F.2d 77, 80 (2d Cir. 1985); Kamrin v. United States, 725 F.2d 1225, 24 1227-28 (9th Cir. 1984). A magistrate judge's ultimate decision in an extradition 25 case is itself subject only to limited review. Oen Yin-Choy v. Robinson, 858 F.2d 26 1400, 1402 (9th Cir. 1988). Accordingly, some district COUJ1s have reviewed 27 orders denying bail in extradition matters only to determiTIl! whether there were 28 "reasonable grounds" for the magistrate judge's findings o"dering no bail. See, 5 char~ed . ... --.. - - -.- - - - - 1 1 ~,In 2 Supp. at 918, affd, 931 F.2d 1'69; In re Extradition of Russell, 647 F. Supp. at 3 1047-48, affd, 805 F.2d 1215. Other district courts have reviewed such orders de 4 novo. See, e.g., Borodin v. Ashcroft, 136 F. Supp. 2d 125,128 (E.D.N.Y. 2001) 5 (citing United States v. Leitner, 784 F.2d 159 (2d Cir. 1986)); United States v. 6 Hills, 765 F. Supp. 381,383 n.3 (E.D. Mich. 1991). As no controlling authority 7 clearly addresses this issue, the court shall review Judge Hillman's order de novo. re Extradition ofSiernlUnd, 887 F. Supp. at 1384-85; Koskotas, 740 F. 8 9 IV. DISCUSSION 10 A. Petitioner's Provisional Arrest Was Supported by Probable Cause 11 Petitioner argues that his provisional arrest violated the Fourth Amendment 12 of the U.S. Constitution, contending that Magistrate Judge Hillman failed to make 13 a finding of probable cause to justify the arrest. Contrary to Petitioner's argument, 14 Magistrate Judge Hillman clearly and unequivocally found probable cause to issue 15 the provisional arrest warrant. After being presented with a copy of the Treaty, 16 Denmark's request for a provisional arrest, the Ringkobing Court's arrest order, 17 the Western High Court's order, and a 32-page summary of the evidence against 18 Petitioner, Magistrate Judge Hillman issued an order February 18, which 19 specifically states: "It is hereby ordered, based on probable cause, that a warrant 20 for the arrest ofMogens Amdi Pedersen may issue." Sloan Decl., Ex. I (emphasis 21 added). 22 Moreover, the Government made the requisite showing of probable cause 23 for Petitioner's provisional arrest. Courts have held that the Government may 24 secure a provisional arrest warrant for a fugitive by showing that there is a facially 25 valid fo!eign arrest warrant for the individual charging him with an extraditable 26 27 28 S Petitioner concedes that the applicability of Section 12 of the Treaty is no longer before the coun, making the only issue the constitutional validity ofPetiu ,ner's arrest. 6 offense. See. 'e.g., United States v. Wiebe, 733 F.2d 549, 553-54 (8th Cir. 1984).6 2 The probable cause showing required for a detention results from a balancing of 3 interests that reflects the purpose for which the warrant is sought. See United 4 States v. United States District Court, 407 U.S. 297, 323 (1972) ("[W]arrant 5 application may vary according to the governmental interest to be enforced and the 6 nature of citizen rights deserving protection."). The purpose of the warrant in the 7 instant case was the provisional arrest, pursuant to an extradition treaty, of a 8 fugitive from foreign criminal charges. Where the purpose of such provisional 9 arrest is to secure a fugitive long enough to permit the foreign government to 10 present it~ formal Request for Extradition, the Fourth Amendment requires only 11 that Petitioner be shown to be the individual named in a facially valid warrant 12 from the courts of the treaty partner country, charging him with an extraditable 13 offense. See 18 U.S.C. § 3184.' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Contrary to Petitioner' s contention, Wiebe did not hold that a "judicial determination of probable cause to believe that the fugitive committed an extraditable offense [is) required for a provisional arrest warrant." Petitioner's Brief at 6. In fact, Wiebe expressly rejected that contention, finding probable cause existed to issue a provisional arrest warrant where the complaint alleged (1) that Wiebe was wanted for murder in Spain, (2) that an extradition treaty existed between the U.S. and Spain, and (3) that murder was an extraditable offense under the treaty. 733 F.2d at 553, 554. Petitioner may have confused the court's discussion of the probable cause necessary to support an order of extradition following an extradition hearing, id. at 552, 553 , with its discussion of the probable cause sufficient to support a warrant for provisional arrest. Id. at 553, 554. 7 At the hearing, Petitioner' s counsel argued that the standard for issuing a provisional . arrest warrant should be identical to that required to support an order of extradition following a full extradition hearing. This argument ignores the fact that extradition is a formal process, . requiring the foreign country to collect, translate, and have certified by the American Ambassador and forwarded to the State Depanment all of the supporting documentation. The State Department thereafter reviews the documents before forwarding them to the Office of International Affairs which, in tum, reviews and forwards them to the United States Attorney's Office. To adopt Petitioner's argument would be to make provision.a] arrest illusory. It is utilized precisely because fozma} requests for extradition cannot be produced the moment the U.S. determines that a fugitive sought by one of its treaty partners is .n this country. Few foreign countries will begin the laborious process of translating and certifyil ls extradition documents 7 The evidence presented to Magistrate Judge Hillman clearly satisfied this 2 requirement. The Government proffered the Ringkobing Court's order that. 3 "defendant Mogens Amdi Pedersen be taken into custody." Sloan Decl., Ex. D; 4 Extradition Request, Ex. Bat 31-32. 8 The order is facially valid, and Petitioner 5 has the same date of birth and passport number as the Interpol search report for 6 ''Mogens Amdi Pedersen," issued pursuant to the Ringkobing Court's order. 7 Complaint for Provisional Arrest, Sloan Decl. 8 stated that Petitioner had been charged with tax evasiC?n, an extraditable offense 9 under the Treaty. Sloan Dec!., Ex. D; Ex. G, Art. 3, No. 24B. As courts have ~ 9. The Ringkobing Court's order 10 recognized that evidence presented at the provisional arrest stage need not meet 11 the same evidentiary standards as that ultimately presented at the extradition 12 hearing, the documents presented to Magistrate Judge Hillman satisfied the 13 Government's burden of establishing probable cause. See. e.g., Yordi v. Nolte, 14 215 U.S. 227,230-31 (1909) (contemplating complaint for issuance of provisional 15 arrest warrant based upon information and belief); In Te Extradition of Russell, 16 805 F .2d at 1217-18 (recognizing .that applications for provisional arrest warrants 17 might be. based upon "informal" evidence and procedures); Caltagirone v. Grant, 18 629 F.2d 739, 747 (2d Cir. 1980) (contemplating that an application for 19 provisional arrest might be made by telephone when time is of the essence); 20 United States v. ex Tel. Petrushanskv v. Marasco, 325 F.2d 562, 564 (2d Cir. 1963) 21 (complaint issued upon Assistant U.S. Attorney's information and belief sufficient 22 for provisional arrest warrant), cert. denied, 376 U.S. 952 (1964). 23 24 25 26 27 28 without some assurance that the fugitive will be available by the time the request is transmitted. S At Petitioner'S detention hearing, Petitioner's counsel argued that the extradition request did not contain an arrest warrant. However, such a "warrant" is merely an order by a judge directing law enforcement officers to arrest a certain individual. BUICK'S LAW DICTIONARY 1579 (7th ed. 1999). The Ringkobing Court's order expressly allowl:d the request for custody .and ordered "that the defendant Mogens Amdi Pedersen be taken iI lt) custody." Sloan Decl., Ex. D; Extradition Request, Ex. B at 31-32. . 8 1 Even were a traditional showing of probable cause required at the .. 2 provisional arrest stage, however, the 32-page case summary prepared by Danish 3 prosecutors and presented to MagistTate Judge Hillman before he issued the 4 provisional arrest warrant clearly satisfied such a requirement. 9 The summary 5 stated that in September 2000, the Chief Constable in Holsterbro began an 6 investigation of "The Foundation for the Support of Humanitarian Purposes, the 7 Promotion of Research, and the Protection of the Natural Environment" ("the 8 Foundation"). Extradition Request, Ex. B at 53. The evidence suggested that the 9 Foundation, controlled by Petitioner and others, had not used its funds in the 10 public interest, but rather had contributed to commercial enterprises controlled by 11 and financially benefitting, inter alia, Petitioner. Id. The evidence also suggested 12 that Petitioner and others attempted to .conceal. these unwarranted allotments from 13 the Foundation's regulator by preparing incorrect applications for support and 14 false reports on the use of the Foundation's funds. Id. By doing so, Petitioner and 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Arguably, the existence of the warrant of arrest, issued by a judicial officer of a treaty partner country based on the judicial officer's fmding of probable cause (or some reasonable approximation thereof), establishes probable cause to believe the person has committed the offense. This is essentially the same showing that suffices to obtain a domestic arrest warrant of a person charged with a crime in another U.S. jurisdiction. See, U:., Whiteley v . Warden, 401 U.S. 560, 568 (1971) (probable cause existed to arrest suspect where radio information advised that magistrate in another county had issued arrest warrant); United States v . Hensley, 469 U.S. 221, 231-232 (police may rely on request by another jurisdiction to stop and arrest suspects). As noted above, the Ringkobing court found (and the Western High Court affirmed) that there was "probable cause to suggest that the defendant has contributed decisively to the [offense of tax evasion]. " Just as a foreign judgment of conviction is sufficient, on its face, to establish that the person has been convicted without inquiring into the sufficiency of the underlying evidence, there seems little reason to accord less deference to a foreign judicial officer's determination of probable cause (or its functional equivalent) to believe the person has committed the extraditable offense. ·Nor is there cause to question the integrity of the judicial officer or the reliability of the . foreign court ' s findings, when "[t]he President and the Senate have made the political decision that [the foreign country's] criminal justice system comports with basic American notions of fairness and therefore entered into the Treaty." Spatola v. United Satl ~, 741 F. Supp. 362,371 (E.D.N.Y.), aff'd, 925 F.2d 615 (2d Cir. 1991). 9 ..11 others allegedly violated: 1) Section 278 of the Danish Criminal Code by 2 misappropriating funds earmark~d "for public interest purposes; and 2) Section 13 3 of the Danish Control Act by making false statements in connection with The ~tatus 4 Foundation's as "a recipient of tax-privileged contributions."Id. The 5 Government satisfied its burden of showing probable cause to issue a provisional 6 arrest warrant, regardless of which showing was required, and Magistrate Judge 7 Hillman did not err in finding probable cause to issue the warrant. 8 9 10 B. Petitioner 's Continued Detention Does Not Violate the Trea ty Petitioner argues that Article 11 of the Treaty, which governs extradition 11 requests, requires a traditional showing of probable cause to detain him pending 12 an extradition hearing. Article 11 requires that an extradition request include: 1) a 13 description of the person sought; 2) information as to his nationality and 14 residence, if available; 3) a statement of the facts of the case; 4) the text of the 15 applicable laws of the requesting state, including the laws defining the offense and 16 prescribing the punishment for the offense; 5) a statement that the statute of 17 limitations has not run on the offenses at. issue; 6) an arrest warrant; and 7) such 18 evidence that would justify arrest and detention had the alleged offenses been 19 committed in the United States. Sloan Decl., Ex. G, Art. 12 (emphasis added). 20 Although Article 11 requires that Denmark 's extradition request inc~ude 21 evidence that would establish probable cause to believe that Petitioner committed 22 the offenses with which he is charged, the Treaty does not require that this 23 evidence be evaluated on the merits prior to Petitioner' s extradition hearing. 24 Article 11 states that all documentation required to extradite Petitioner "shall be 25 admitted in evidence in the examination of the request for extradition." Sloan 26 Decl., Ex. M , Art. 11 (emphasis added). It would be illogical to interpret Article 27 11 to require, prior to the extradition hearing, the identical showing to be made at 28 the hearing itself. Nothing in the treaty or case law sugge:its such an anomalous 10 .... 1 2 _- result. In S1,lID, the Treaty requires only that the court review Denmark 's exrradition wheth~r 3 request to determine whether it is facially valid, viz., 4 of evidence that would establish probable cause to believe Petitioner committed 5 the offenses with which he has been charged. Denmark's 168-page formal 6 Request for Extradition satisfies Article 11 of the Treaty, as it includes: 1) a 7 formal request for the extradition of Mogens Amdi Pedersen; 2) a copy of 8 "Extradition Treaty Between the United States and Denmark;" 3) a declaration by 9 Cynthia Stewart Francisco, an attorney with the United States Departtnent of State, 10 accompanying the formal extradition request and the copy of the Treaty; 4) a letter 11 from Denmark's Ministry of Justice requesting that Petitioner be provisionally 12 arrested; 5) copies of hearing transcripts from both the Ringkobing Court and the 13 Western High Court; 6) a copy of the Ringkobing Court's order for Petitioner's 14 arrest and detention; 7) a copy of the Western High Court's order upholding the 15 Ringkobing Court's order; 8) a description of Petitioner, including his picture, 16 information about his nationality, and a notation that his current residence is 17 unlmown; 9) the 32-page case summary prepared by Danish prosecutors; '18 10) provisions of Danish law relating to Petitioner's alleged offenses; 11) the 19 statement in lead prosecutor Gade's Declaration, paragraph 17, that the statute of 20 limitations has not yet run on the crimes with which Petitioner has been 21 12) certificates of translation; and 13) certificates signed by both Colin Powell, 22 Secretary of State, and Stuart A. Bernstein, Ambassador of the United States to the 23 Kingdom of Denmark. See Extradition Request, Exs. A-D. 24 it contains the type ch~ged; Even were the Treaty to require a traditional showing of probable cause 25 prior to an extradition hearing, the documents accompanying Denmark' s 26 extradition request satisfy such a requirement. As discusse:', above, the 32-page 27 case summary establishes probable cause to believe that Pe'~ , tioner corrlmitted the 28 cri'mes with which he has been charged. Moreover, the decl aration of lead 11 J'1 prosecutor Poul Gade presented at Petitioner's detention hearing represents, based 2 upon Mr. Gade's personal knowledge and under penalty of perjury, that: 1) 3 Petitioner had "decisive influence" over the Foundation between 1987 and 2000 4 (~11); 5 contributions tax deductible (m11l-12); 3) the Foundation did not spend its funds 6 in the public interest, in contradiction to its representation to Denmark's taxation 7 authorities 8 deductions for contributors constitutes tax evasion in Denmark (~12); 5) the 9 Foundation was liable for taxes for funds that it falselyrepresented were used for 2) the Foundation purported to serve the public interest, making (~ 12); 4) the act of reporting incorrect information to support (~ tax 10 public interest purposes, constituting tax evasion 13); and 6) the funds of the 11 Foundation were transferred to Petitioner, constituting embezzlement 12 Sloan Decl., Ex. C. Accordingly, the court finds thatthe Government has satisfied 13 its obligations under Article 11 of the Treaty. (~ 15). 14 15 C. Petitioner IS Continued Detention Does Not Violate the Fifth Amendment 16 Petitioner argues that holding him without bail pending his extradition 17 hearing violates the Fifth Amendment of the United States Constitution. 18 However, Petitioner's argument ignores nearly a century of precedent from the 19 Supreme Court and every circuit holding that there is a presumption against bail in 20 extradition cases, which can be overcome only by a showing of "special 21 circumstances." Vhight v. Henkel, 190 U.S. 40, 63 (1903). See also In re 22 Extradition of Kirby, 106 F.3d 855 (9th Cir. 1997); Sa1erno v. United States, 878 23 F.2d 317 (9th Cir. 1989). Moreover, the Supreme Court in Wright rejected a due 24 process challenge to detention prior to an exrradition hearing. The petitioner 25 specific~lly 26 deprivation ofliberty without due process oflaw." Wrigh'!;, 190 U.S. at 43 27 (statement of Chief Justice Fuller). Wright's claim that hi! : detention without bail 28 violated due process was made in the habeas petition preSf nted "to the Circuit alleged that "the denial of the right to give bail ... constitutes a 12 1 COurt of the United States' for the Southern District of New York." Id. The 2 Supreme Court reviewed the case .directly from that court, including that court's 3 rejection of the petitioner's due process claim. See lli. The Court's express 4 mention of the due process claim and its rejection of the habeas petition raising 5 that claim leave no room for argument that the court never considered the claim. 6. Indeed, other courts have relied on Wright to reject due process challenges to the 7 sp'ecial 8 CiT. 1996); Beaul1eu v. Hartigan, 554 F.2d 1,2 (1st Cir. 1977). Accordingly, 9 Petitioner's detention prior to his extradition hearing does not violate his due 10 process rights under the Fifth Amendment of the United States Constitution. 11 cir~umstances test. See. e.g., United States v. Kin-Hong, 83 F.3d 523 (1 st Petitioner's due process argument relies exclusively upon Parretti v. United 12 States, 122 F.3d 758 (9th Cir. 1997), an opinion withdrawn by the Ninth Circuit 13 after rehearing en bane. See Parretti v. United States, 143 F.3d 508 (9th Cir. 14 1998) (en bane). Even were the court to consider the withdrawn opinion, it would 15 not benefit Petitioner's argument. The court in Parretti narrowly tailored its 16 holding to cases in which the petitioner is pot a flight risk. "Our holding is a 17 limited one: until such time as an individual is found to be extraditable, his or her 18 Fifth Amendment liberty interest trumps the government's treaty interest unless 19 the government proves to the satisfaction of the district court that he or she is a 20 flight risk." Parretti, 122 F.3d at 780. Petitioner in the instant case is an 21 extraordinary flight risk. 10 Petitioner is not an American citizen and has no 22 substantial ties to the United States, having been apprehended while changing 23 planes at Los Angeles International Airport en route from the United Kingdom to 24 Mexico. Petitioner allegedly has lived outside Denmark for years, moving 25 extensively during the past 20 years, and currently residing in Zimbabwe. Sloan 26 27 28 The court arrives at this conclusion after a de novo review of the evidence, according no deference to Magistrate Judge Hillman ' s finding that Petitioner is l. "serious flight risk." Sloan Decl., Ex. K (Judge Hillman's Order Denying Bail) at 3. 10 - - - -._._ - - - ... . 13 .- .- -_._----- Decl. ~ 17. The Ringkobing Court found that Petitioner has maintained an 2 anonymous existence outside Denmark for years. Id., Ex. D. The Governmc;:nt 3 alleges that Petitioner moved to Zimbabwe in 2001 after the media discovered him A living in Miami. Id. ml16-17. Documents discovered by Danish authorities 5 indicate that Petitioner intends to seek citizenship in Zimbabwe and Brazil, 6 countries that have no extradition treaties with Denmark. Id. 7 Pethioner has every incentive to flee and none to stay. Petitioner faces a 8 maximum term of imprisonment of at least 12 years if convicted of the offenses 9 with which he is charged, a significant portion of time for a man of 63 years old. 10 Id., Ex. M. Moreover, Petitioner has the means to hide within the United States or 11 flee this jurisdiction and live abr<>ad as a fugitive. According to Danish 12 authorities, Petitioner controls an organization that generates millions of dollars in 13 revenue and has over $100 million in assets worldwide. Id. 14 allegedly has access to houses and apartments owned by his organization in more 15 than 30 countries. lit 'if 17. According to the Interpol Report, Petitioner's 16 organization even owns a "very large yacht." rd., Ex. L. Petitioner's ''Financial 17 Affidavit" lists no salary and states that he owns no real estate, stocks, bonds, 18 notes or other valuable property. See Complaint for Provisional Arrest, Exhibit A. 19 Petitioner also represents that he has "no personal 20 communal group" and has no more than $2,000 in savings. Id . .Yet he claimed to 21 be prepared to post as bail property worth several million dollars. Pretrial Services 22 Report, February 19,2002, at 3. He further claimed to have access to $15;000 to as~ets ~ 18-19. Petitioner ... [but] is part of a $20,000 a month when traveling internationally, which he has done extensively for 24 the past three decades. rd. at 3-4. It is thus fair to presume for purposes of this 25 hearing that Petitioner has access to his organization's significant assets. 26 Petitioner proffers no evidence to refute these allegations. Petitioner argues 27 that there are other means of ensuring his presence for all (:ourt appearances, but 28 identifies no reasonable alternatives to incarceration. Givi n the vast resources of 14 -Petitioner's organization, his penchant for international travel, and the ease with 2 which he could hide within the"United States or flee to Mexico or Canada, even 3 were this court to seize his passport and require electronic monitoring, this court is 4 convinced that nothing short of incarceration can adequately ensure Petitioner's 5 appearance at his extradition hearing. 1) 6 7 D . . No Special Circumstances Justify Petitioner 's Release 8 Petitioner argues that Magistrate Judge Hillman erred as a matter of law in 9 failing to find any "special circumstances" that would justify Petitioner's release 10 pending his extradition hearing. Petitioner may be released pending his 11 extradition hearing only ifhe demonstrates both that: 1) "special circumstances" 12 entitle him to be released on bail; and 2) he is not a flight risk. See. e.g., Borodin 13 v. Ashcroft, 136 F. Supp. 2d 125, 128 (E.D.N.Y. 2001) (citing Wright v. Henkel, 14 190 U.S. 40 (1903)). Petitioner aclmowledges that he bears the burden of proof. 15 See. e.g., Salerno v. United States, 878 F.2d 317, 317-18 (9th Cir. 1989). 16 Petitioner argues that his release is compelled by: 1) his probability of success at 17 his extradition hearing; 2) the likely delay that he will face awaiting extradition, 18 3) his inability to prepare a defense while incarcerated; 4) his unspecified health 19 problems; 5) ·the fact that Denmark will not credit him for time spent in U.S. 20 custody; 6) the technical nature of the charges against him; 7) his 21 Denmark's prosecution is motivated by political concerns; and 8) the fact he may allegatio~ that 22 23 24 25 26 27 28 I I As a practical maner, electroruc monitoring provides linle deterrence for an individual detennined to flee. The monitoring devices can be (and are) removed, and the time between removal and notification of the court usually precludes swift apprehension. While electronic monitoring may be useful in ensuring the presence of a defendant who has spent his lifetime in the community and lacks the resources to travel far from it, such mon itoring is wholly ineffectual in securing the presence of a defendant with no ties to the area and ample financial resources to flee the jurisdiction. Petitioner Pedersen falls into the latter category -- _._ - -- - - - - 15 1 not receive bail in Demmrrk. 12 2 At the outset, Petitioner··cannot be released from custody as a matter of law 3 because, as discussed above, he is an enormous flight risk. 13 Even were thi's court 4 convinced that Petitioner would not flee if released on bail, the lack of flight risk 5 alone does not constitute "special circumstances." rd. at 318. Moreover, 6 Petitioner has not demonstrated any special circumstances that would justify his 7 release. 8 9 1. Petitioner's Probabilitv of Success at the Extradition Hearing PetitiQner argues that he will prevail at his extradition hearing as a matter of 10 11 law, warranting his release from ·custody. In order to establish "special 12 circumstances" on these grounds, Petitioner must establish that he has a ''high 13 probability of success." See id. at 317-18. Petitioner contends th!3-t he canriot be 14 extradited to Denmark because he has not been "charged with or 'convicted of any 15 [enumerated] offense," as required by Article 2 of the Treaty. Sloan Decl., Ex. G, 16 Art. 2. 17 Petitioner's contention is without merit, as there is a multitude of evidence 18 showing that Petitioner has, in fact, been charged with embezzlement and tax 19 evasion. As discussed above, Denmark's formal extradition request states that 20 Mogens Amdi Pedersen has been "charged with violation of Section 278 21 (embezzlement ofa panicularly aggravated nature) and Section 289 (tax evasion 22 of a panicularly aggravated nature) of the Danish Criminal Code." Extradition . 23 Request, Ex. A at 7. A letter from Denmark's Ministry of Justice to the American 24 25 26 27 28 12 Petitioner provided no briefmg on many of these alleged "special circumstances," raised for the first time at the March 28 hearing before this court, To date, six judges - U.S . Magistrate Judge Hillman, Judge ' ~ielsen of the Ringkobing Court, Judges Hove, Jensen, and Larsen oftbe Western High Court, eJld this court - have concluded that Petitioner is a flight risk. 13 16 Ambassador to Denmark states that Petitioner has been "charged" with violating 2 Section 278(1 )(3), cf. Section 186(2) (embezzlement of a particularly aggravated 3 nature) of the Danish Criminal Code and Section 289 (tax evasion of a particularly 4 aggravated nature) of the Danish Criminal Code, cf. Section 13 of the Tax Control 5 Act. Sloan Dec!., Ex. M. The Ringkobing Court conducted a hearing, at which 6 Petitioner was represented by counsel and charged with one count of 7 embezzlement and two counts of tax evasion. Id., Ex. A at 44-46. Indeed, the 8 Ringkobing court repeatedly referred to the "charges" against Petitioner, which 9 were read into the record. See id. The Ringboking Court also issued an order 10 finding "probable cause" to suspect Petitioner's involvement in unlawful 11 activities. Id., Ex. D. The Ringkobing Court ordered Petitioner to be arrested and 12 incarcerated, finding that he would likely evade prosecution. lQ..14 13 The Western High Court upheld the lower court's finding of probable cause 14 and order to detain Petitioner, as he was a flight risk. Id., Exs. E-F. The Interpol 15 Report requesting that Petitioner be apprehended states that he has been "charged" 16 with embezzlement and tax evasion. Id., Ex. L. Moreover, Poul Gade, a deputy to 17 Denmark's Public Prosecutor for Serious Economic Crime, has submitted a sworn . 18 19 declaration attesting to the fact that Petitioner has been properly charged in all three counts. Id., Ex. C (Gade Declaration) ~ 19. 20 Relying exclusively upon a declaration by his Danish counsel, Joergen 21 Quade Andersen, Petitioner argues that the documents before this court do not use 22 the word "charge" as understood in the American legal system. However, a single 23 declaration does not adequately refute the wealth of documents indicating that 24 25 26 27 28 , I~ Although the Ringkobing Court rendered a finding of probable cause on the tax evasion ' charges, it did not take a position on the charge of embezzlement, as its finding on the tax evasion charges alone was sufficient to order Petitioner'.s arrest. Slon Decl., Ex. C (Gade Dec!.) ~ 5.. Regardless ofthe merits of the embezz1ement charge, tax evasio) constitutes a grounds for extradition pursuant to the Treaty. See id., Ex. G (the Treaty), Art. 3, ].Jo. 24B. - - - - - - - - - .. -_.. - .. _.__ .__. ." - -_._----+- ' 17 Petitioner has-been "charged," including transcripts of Danish coun hearings, 2 orders from Danish courts, formal diplomatic communications, infonnalleners, 3 and a sworn declaration by the Danish prosecutor, Poul Gade: directly 4 contradicting that of Mr. Andersen. As the Government has made a strong 5 showing that -Petitioner has, in fact, been charged with extraditable offenses, it 6 cannot be said that Petitioner has a ''high probability" of prevailing at his 7 extraditlon hearing by arguing that he has not been charged . Moreover, the Government need not show that Petitioner has been .8 9 "charged," as that term is understood in the United States. Courts have interpreted 10 extradition treaties requiring that the foreign government "charge" an individual to 11 require only that the requesting nation have "accused" the individual or frrrnly 12 expressed its intent to prosecute·hirn, not that formal charges hav.e been filed. See. 13 ~,Emami 14 834 F.2d ]444, 1448-49 (9th Cir. 1987); In re Assarsson, 635 F.2d 1237, 1241-44 15 (7th Cir. ] 980). In Emami, Germany sought to extradite the petitioner pursuant to 16 a treaty requiring that he be "charged with an offense." llt at 1448. The petitioner 17 argued that he could not be extradited because Germany merely sought to detain 18 him pending investigation and had not filed formal charges against him - the same 19 argument Petitioner makes in the instant case_ The Ninth Circuit rejected this 20 argument, holding that formal charges were not required because the extradition 21 treaty did not require that a copy of formal charges accompany the extradition 22 request. Id. at ]448-49. 15 Moreover, the court held that it would not interpret 23 foreign law to determine whether individuals had been properly charged in their 24 home countries. Id. at 1449 ("We refrain from interpreting the requirements of 25 German 26 because 'we recognize the chance of erroneous interpretation is much greater when v. United States District Court for the Northern District of California, ~riminal procedure both out of respect for German sovereignty and 27 28 IS Neither does the extradition treaty between the United Stat =5 and Denrnark_ 18 we try to construe the law of a country whose legal system is not based on Tile court held that Gennany need only represent that 2 common law principles. "). 3 the petitioner "is wanted for prosecution." Id. 4 Similarly, 'in Assarsson, the petitioner argued that a treaty with Sweden for 5 the extradition of individuals "charged with or convicted of any [enumerated] 6 offense'" required that fonnal charges have been filed in Sweden. In re Assarsson, 7 635 F.2d at 1241-42. The court rejected the argument, finding that the treaty's 8 plain language did not require that fonnal charges have been filed and that Sweden 9 was not required to include a copy of fonnal charges .with the extradition request. 10 Id. at 1241 ...44. Instead, the court interpreted the word "charged" as requiring only 11 that the petitioner be "accused" of a crime. Id. at 1242-43. The court also noted 12 that it would not review a foreign country's compliance with its own criminal 13 procedures.as a prerequisite to extradition. Id. ("The court's refusal to review 14 compliance with foreign criminal procedure is not a formalistic application of 15 outmoded law. Rather, the narrow scope of review is based on respect for the 16 sovereignty of other nations. \Vhi1e our courts should guarantee that all persons 17 on our soil receive due .process under our laws, that power does not extend to 18 overseeing the criminal justice system of other countries. "). 19 The facts of the instant case are indistinguishable from those in Emanri and 20 Assarsson. The United States' extradition treaty with Denmark requires only that 21 an individual be "charged with or convicted of any of the [enumerated] 22 offenses .... " Sloan Decl., Ex. G, Art. 1. Petitioner does not identify any 23 language in the treaty requiring that "formal charges" be filed against him. While 24 the treaty requires Denmark to produce a host of documents, a formal copy of 25 charges is not required. See id., Ex. G, Art. 11. Instead, Denmark need only 26 provide "a warrant of arrest issued by a judge or other judicial officer of the 27 requesting state." Id. It is clear that Denmark has done so. See supra note 6 and 28 accompanying discussion. In short, nothing in the Treaty requires that formal - - - ----_ .. 19 11 -- - . - '- " - - - ' " charges have'been filed against Petitioner. 1 The·record in this case reflects that Denmark has finnly expressed its .intent 2 3 to prosecute Petitioner. Petitioner argues that he may not ultimately be 4· prosecuted, as Danish authorities are still conducting their investigation. However 5 hopeful Petitioner may be that Danish authorities will have a change of heart, the 6 record contains sufficient evidence to conclude that Petitioner has been "charged" 7 as required by the Treaty.16 Accordingly, the court cannot conclude that Petitioner 8 has met his heavy burden of establishing that he would have a "high probability of 9 success'" based on his claim that he has not been "charged." 17 10 11 12 2. Unusual Delay Petitioner argues that likely delay in the extradition process compels his 13 release. Although "unusual delay" in the extradition and appellate process may 14 justify release, there has been no delay in this case. United States v. Kirby, 106 15 F.3d 855, 863-66 (9th Cir·. 1996) (unusual delay found 'w here three incarcerated 16 defendants had been awaiting extradition for two years, three years, and three and 17 one-half years, respectively). In the instant case, Petitioner was detained February 18 16, 2002 and has been in custody for approximately six weeks. There is nothing 19 to suggest that the extradition hearing will be delaye.d or take an unusually long 20 time to complete. Danish prosecutors have prepared and filed with the court a 21 comprehensive summary of the evidence against Petitioner, which is available to 22 23 24 Petitioner argues that the Ringkobing Court ' s order finding probable cause reflects only its "mere suspicion" that he may have some connection to the alleged tax evasion. The language of the order suggests to the contrary. See Sloan Decl., Ex. D. 16 25 At the hearing, Petitioner argued that he will prevail at his extradition hearing because . Denmark cannot prove that he acted with the requisite intent Petitioner provided no briefing on this argument, and the record before this court contains sufficient evidence ofinteritional conduct to preclude Petitioner' s relying on this argument to show a high prob llbility of success at the extradition hearing. . 17 26 27 28 - - - ....- .- .. . _._ . . .- . __ . --- - - - - 20 him. Pou] Gade, the lead Danish prosecutor in the case against Petitioner, and 2 Joergen Quade Andersen, Petitioner's Danish defense counsel, have thus far 3 assumed an active role in this matter, preparing declarations and attending 4 Petitioner's detention hearing. Prior to this court's hearing on the matter, 5 Magistrate Judge Victor Kenyon, who will be conducting Petitioner's extradition 6 hearing, had scheduled a status conference for the foHowing day, for the parties to 7 discuss the briefing schedule and date for the extradition hearing. These facts 8 suggest that the extradition hearing should not be unduly delayed. Petitioner also 9 provides no basis for fmding that appellate review, if any, of his extradition 10 hearing would take ~ inordinate amount of time. IS Accordingly, the court finds 11 no "unusual delay" that would justify his release pending the extradition hearing. 12 13 14 3. Petitioner's Alleged Inability to Pre.pare a Defense Petitioner argues that his incarceration renders it "virtually impossible" for 15 him to consult with his attorneys and prepare a defense. However, the Ninth 16 Circuit has explicitly held that the need to "consult with counsel, gather evidence 17 and confer with witnesses" does not constitute "special circumstances" warranting 18 release. In re Extradition of Smyth, 976 F.2d 1535, 1535-36 (9th Cir. 1992). Even 19 were the court to evaluate Petitioner's claim, he cites no facts to support his 20 alleged incapacity. The court has arranged for Petitioner to be incarcerated at the 21 Metropolitan Detention Center, which is less than 15 miles from his counsel's 22 office. See www.mapguest.com. Magistrate Judge Hillman also ordered that 23 Petitioner be allowed two telephone calls per day to his attorneys. See Sloan 24 25 26 27 28 Petitioner argues that he could be held for an indetcnninatt: period oftime in Denmark awaiting trial. This argument is not relevant to whether unusual delay in resolving the extradition matter would compel Petitioner's release on bail. 18 21 - ------------f- Dec!., Ex. K. H Petitioner's situation is no different fr om that of other individuals 2 incarcerated while awaiting disposition .ofproceedings. Accordingly, the court 3 finds no "special circumstances" created by Petitioner's incarceration. 4 5 4. Petitioner's Health Petitioner argues that his health mandates release from custody. The Ninth 6 7 Circuit holds that only a "serious deterioration of health while incarcerated" 8 constitutes "special circumstances." Salerno, 878 F.2d at 317-18. In the instant 9 case, Petitioner identifies no health problems that would justify his release. 10 Indeed, Petitioner concedes that ''his health condition has not as of yet been 11 ascertained since his entry into this country and being taken into custody." 12 Petitioner's Brief at 21. Moreover, Petition,er does not represent that he has 13 consulted prison health officials concerning any specific medical problems. 14 Petitioner apparently contends that this court should find his health in jeopardy 15 because he is 63 years old.. However, Petitioner identifies no actual health 16 problems that would compel his release pending the extradition hearing. 17 18 5. No Credit for Time Spent in U.S. Custody Petitioner argues that Denmark will not credit time spent in U.S. custody 19 20 against the sentence he will receive if convicted of the offenses with whic4 he has 21 been charged. The Ninth Circuit has explicitly held that this does not constitute 22 "special circumstances." See United States v . Kirby, 106 F.3d 855, 863 (9th Cir: 23 1997). 24 25 26 27 28 19 Petitioner cites In re Mitchell, 171 F. 289 (S.D.N.Y. 1909) (Hand, J.), finding "special circumstances" where an incarcerated petitioner was "entirely unable" to consult with counsel in connection with a pending civil case involving his entire fortune . Ull:ike Mitchell, Petitioner may commurucate with both his American and Danish counsel while In custody, and identifies no ancillary proceeding that requires his immediate presence or atter t ion. 22 6. The Techn-ical Nature of the Charges Peti,tioner argues that the technical nature of the charges against him 2 3 compels his release. He cites no authority - and this court has found none ~ for 4 the proposition that a fugitive from foreign charges should be released because the 5 charges against him are allegedly technical. 6 7 7. Political Concerns Petitioner alleges that Denmark's prosecution is motivated by political 8 9 concerns: The record contains nothing to suggest that Denmark's prosecution is 10 motivated by anything other than evidence that Petitioner has committed 11 embezzlement and tax evasion. 12 13 8. No Bail in Denmark Finally, Petitioner argues that he should be released on bail because he may 14 15 not receive bail in Denmark. However, Petitioner cites no cases in support of his 16 argument, and he could, in fact, receive bail in Denmark. See Sloan Dec!., Ex. C 17 (Gade Decl.) ~ 18 . . 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III - - _ .. - --------- 23 J1 V. CONCLUSION 1 2 Based upon the foregoing, the court DENIES Mogens Amdi Pedersen's 3 habeas petition to set aside Magistrate Judge Stephen Hillman's order denying him 4 bail, pending his extradition hearing. 20 5 6 IT IS SO ORDERED 7 8 -z7P~ DATED: April 2, 2002 N'ora M. Manella/' United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Petitioner also provides no basis for finding that his incarce"ation prior-to an extradition bearing constitutes cruel and unusual punishment in violation of the J ~ighth Amendment of the United States Constitution. 24 PROOF OF SERVIt:::-t: 1 2 3 STATE OF CALIFORNIA 4 COUNTY OF LOS ANGELES l ss. 7 8 On May 22, 2002, I caused the foregoing document described as NOTICE OF APPEAL to be served on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: 9 Matthew E. Sloan Assistant United States Attorney General Crimes Section 1200 U.S. Courthouse 312 North Spring Street Los Angeles, CA 90012 10 11 12 13 14 lS l I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation-date or postage meter date is more than one day after date of deposit for mailing in affidavit. 16 Via Hand-Delivery. 17 Via Federal ExpresslExpress Mail. 18 Via Fax. 19 20 21 22 23 24 2S 26 27 28 Executed on May 22, 2002, at Santa Monica, California. IJr ~Roi~~.~~~~- I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. 1 DENMARK EXTRADITION 25 UST 1293; TIAS 7864 TREATY SIGNED AT COPENHAGEN JUNE 22, 1972 (SD ). RATIFICATION ADVISED BY THE SENATE OF THE UNITED STATES OF AMERICA MARCH 29, 1 9 74 ; RATIFIED BY THE PRESIDENT OF THE UNITED STATES OF AMERICA APRIL 17, 1974 ; RATIFIED BY DENMARK JUNE 10, 1974; RATIFICATIONS EXCHANGED AT WASHINGTON JULY 1, 1974; PROCLAIMED BY THE PRESIDENT OF THE UNITED STATES OF AMERICA JULY 18, 1974. ENTERED INTO FORCE JULY 31, 1974 (ElF). BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION CONSIDERING THAT: THE TREATY· ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF DENMARK WAS SIGNED AT COPENHAGEN ON JUNE 22, 1972, THE ORIGINAL OF WHICH TREATY IS HERETO ANNEXED; THE SENATE OF THE UNITED STATES OF AMERICA BY ITS RESOLUTION OF MARCH 29, 1974 , TWO-THIRDS OF THE SENATORS PRESENT CONCURRING THEREIN, GAVE ITS ADVICE AND CONSENT TO RATIFICATION OF THE TREATY; THE TREATY WAS RATIFIED BY THE PRESIDENT OF THE UNITED STATES OF AMERICA ON APRIL 17, 1974, IN PURSUANCE OF THE ADVICE AND CONSENT OF THE SENATE, AND HAS BEEN DULY RATIFIED ON THE PART OF THE KINGDOM OF DENMARK; THE RESPECTIVE INSTRUMENTS OF RATIFICATION WERE EXCHANGED AT WASHINGTON ON JULY 1, 197 4 ; IT IS PROVIDED IN ARTICLE 21 OF THE TREATY THAT THE TREATY SHALL ENTER INTO FORCE ON THE THIRTIETH DAY AFTER THE DATE OF THE EXCHANGE OF INSTRUMENTS OF RATIFICATION ; NOW, THEREFORE, I, RICHARD NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, PROCLAIM AND MAKE PUBLIC THE TREATY TO THE END THAT IT SHALL BE OBSERVED AND FULFILLED WITH GOOD FAITH ON AND AFTER JULY 31, 197 4 BY THE UNITED STATES OF AMERICA AND BY THE CITIZENS OF THE UNITED STATES OF AMERICA AND ALL OTHER PERSONS SUBJECT TO THE JURISDICTION THEREOF. IN TESTIMONY WHEREOF, I HAVE SIGNED THIS PROCLAMATION AND CAUSED THE SEAL OF THE UNITED STATES OF AMERICA TO BE AFFIXED. DONE AT THE CITY OF WASHINGTON THIS EIGHTEENTH DAY OF JULY IN THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED SEVENTY-FOUR AND OF THE INDEPENDENCE OF THE UNITED STATES OF AMERICA THE ONE HUNDRED NINETY-NINTH . (SEAL ) RICHARD NIXON BY THE PRESIDENT: HENRY A. KISSINGER SECRETARY OF STATE EXHIBIT &1 1 TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF DENMARK THE UNITED STATES OF AMERICA AND THE KINGDOM OF DENMARK, DESIRING TO MAKE MORE EFFECTIVE THE COOPERATION OF THE TWO COUNTRIES FOR THE RECIPROCAL EXTRADITION OF OFFENDERS, AGREE AS FOLLOWS: ARTICLE 1 EACH CONTRACTING STATE AGREES TO EXTRADITE TO THE OTHER, IN THE CIRCUMSTANCES AND SUBJECT TO THE CONDITIONS DESCRIBED IN THIS TREATY, PERSONS FOUND IN ITS TERRITORY WHO HAVE BEEN CHARGED WITH OR CONVICTED OF ANY OF THE OFFENSES MENTIONED' IN ARTICLE 3 COMMITTED WITHIN THE TERRITORY OF THE OTHER OR OUTSIDE THEREOF UNDER THE CONDITIONS SPECIFIED IN ARTICLE 4.' ARTICLE 2 THE REQUESTED STATE SHALL, PURSUANT TO THE PROVISIONS OF THIS TREATY, EXTRADITE A PERSON 'CHARGED WITH OR CONVICTED OF ANY OFFENSE MENTIONED IN ARTICLE 3 ONLY WHEN BOTH OF THE FOLLOWI~G CONDITIONS EXIST: 1. THE LAW OF THE REQUESTING STATE, IN FORCE WHEN THE OFFENSE WAS COMMITTED, PROVIDES A POSSIBLE PENALTY OF DEPRIVATION OF LIBERTY FOR A PERIOD OF MORE THAN ONE YEAR; AND 2. THE LAW IN FORCE IN THE REQUESTED STATE GENERALLY PROVIDES A POSSIBLE PENALTY OF DEPRIVATION OF LIBERTY FOR A PERIOD OF MORE THAN ONE YEAR WHICH WOULD BE APPLICABLE IF THE OFFENSE WERE COMMITTED IN THE TERRITORY OF THE REQUESTED STATE. WHEN THE PERSON SOUGHT HAS BEEN SENTENCED IN THE REQUESTING STATE, THE DETENTION IMPOSED MUST HAVE BEEN FOR A PERIOD OF AT LEAST FOUR MONTHS. ARTICLE 3 EXTRADITION SHALL BE GRANTED, SUBJECT TO THE PROVISIONS OF ARTICLE 2, FOR THE FOLLOWING OFFENSES: 1. MURDER; COMMIT MURDER. VOLUNTARY MANSLAUGHTER; 2. ~GGRAVATED INJURY OR ASSAULT; CAUSE GRIEVOUS BODILY HARM. ASSAULT WITH INTENT TO INJURING WITH INTENT TO 3 . UNLAWFUL THROWING OR APPLICATION OF ANY COF .ROSIVE OR INJURIOUS SUBSTANCES UPON THE PERSON OF ANOTHER. 2 4. RAPE; INDECENT ASSAULT; SODOMY ACCOMPANIED BY USE OF FORCE OR THREAT; SEXUAL INTERCOURSE OR OTHER UNLAWFUL SEXUAL RELATIONS WITH OR UPON CHILDREN UNDER THE AGE SPECIFIED BY THE LAWS OF BOTH THE REQUESTING AND REQUESTED STATES. 5. UNLAWFUL ABORTION. 6. PROCURATION; INCITING OR ASSISTING A PERSON UNDER 21 YEARS OF AGE TO CARRY ON SEXUAL IMMORALITY AS A PROFESSION; CONTRIBUTING TO THE TRANSPORTATION OUT OF THE COUNTRY OF A PERSON UNDER 21 YEARS OF AGE OR AT THE TIME IGNORANT OF THE PURPOSE IN ORDER THAT SUCH PERSON SHALL CARRY ON SEXUAL IMMORALITY AS A PROFESSION ABROAD OR SHALL BE USED FOR SUCH IMMORAL PURPOSE; PROMOTING OF SEXUAL IMMORALITY BY ACTING AS AN INTERMEDIARY REPEATEDLY OR FOR THE PURPOSE OF GAIN; PROFITING FROM THE ACTIVITIES OF ANY PERSON CARRYING ON SEXUAL IMMORALITY AS A PROFESSION. 7. KIDNAPPING; IMPRISONMENT. CHILD STEALING; 8. ROBBERY; 9. BURGLARY. 10. LARCENY. 11. EMBEZZLEMENT. ABDUCTION; FALSE ASSAULT WITH INTENT TO ROB. 12. OBTAINING PROPERTY, MONEY OR VALUABLE SECURITIES: BY FALSE PRETENSES OR BY THREAT OF FORCE, BY DEFRAUDING ANY GOVERNMENTAL BODY, THE PUBLIC OR ANY PERSON BY DECEIT, FALSEHOOD, USE OF THE MAILS OR OTHER MEANS OF COMMUNICATION IN CONNECTION WITH SCHEMES INTENDED TO DECEIVE OR DEFRAUD, OR BY ANY OTHER FRAUDULENT MEANS. 13 . BRIBERY, INCLUDING SOLICITING, OFFERING AND ACCEPTING. 14. EXTORTION. 15. RECEIVING OR TRANSPORTING ANY MONEY, VALUABLE SECURITIES OR OTHER PROPERTY KNOWING THE SAME TO HAVE BEEN UNLAWFULLY OBTAINED . 16. FRAUD BY A BAILEE, BANKER, AGENT, FACTOR, TRUSTEE, EXECUTOR,. ADMINISTRATOR OR BY A DIRECTOR OR OFFICER OF ANY COMPANY. 17. AN OFFENSE AGAINST THE LAWS RELATING TO COUNTERFEITING OR FORGERY. 3 18. FALSE STATEMENTS MADE BEFORE A COURT OR TO A GOVERNMENT AGENCY OR . OFFICIAL, INCLUDING UNDER UNITED STATES LAW PERJURY AND SUBORNATION OF PERJURY. 19. ARSON. 20. AN OFFENSE AGAINST ANY LAW RELATING TO THE PROTECTION OF THE LIFE OR HEALTH OF PERSONS FROM: A SHORTAGE OF DRINKING WATERi POISONED, CONTAMINATED, UNSAFE OR UNWHOLESOME DRINKING WATER, SUBSTANCES OR PRODUCTS. 21. ANY ACT DONE WITH INTENT TO ENDANGER THE SAFETY OF ANY PERSON TRAVELING UPON A RAILWAY, OR IN ANY AIRCRAFT OR VESSEL OR BUS OR OTHER MEANS OF TRANSPORTATION, OR ANY. ACT WHICH IMPAIRS THE SAFE OPERATION OF SUCH MEANS OF TRANSPORTATION. 22. PIRACYi MUTINY OR REVOLT ON BOARD AN AIRCRAFT AGAINST THE AUTHORITY OF THE COMMANDER OF SUCH AIRCRAFTi ANY SEIZURE OR EXERCISE OF CONTROL, BY FORCE OR VIOLENCE OR THREAT OF FORCE OR VIOLENCE, OF AN AIRCRAFT. 23. AN OFFENSE AGAINST THE LAWS RELATING TO DAMAGE TO PROPERTY. 24. A. OFFENSES AGAINST THE LAWS RELATING TO IMPORTATION, EXPORTATION OR TRANSIT OF GOODS, ARTICLES, OR MERCHANDISE. B. OFFENSES RELATING TO WILLFUL EVASION OF TAXES AND DUTIES. C. OFFENSES AGAINST THE LAWS RELATING TO INTERNATIONAL TRANSFERS OF FUNDS. 25. AN OFFENSE RELATING TO BANKRUPTCY LAW. 26. AN OFFENSE AGAINST THE LAWS RELATIVE TO NARCOTIC DRUGS, CANNABIS SATIVA L, PSYCHOTROPIC DRUGS, COCAINE AND ITS DERIVATIVES, AND OTHER DANGEROUS DRUGS AND CHEMICALS. 27. AN OFFENSE RELATING TO THE: A. SPREADING OF FALSE INTELLIGENCE LIKELY TO AFFECT THE PRICES OF COMMODITIES, VALUABLE SECURITIES OR ANY OTHER SIMILAR INTERESTSi OR B. MAKING OF INCORRECT OR MISLEADING STATEMENTS CONCERNING THE EC0NOMIC CONDITIONS OF SUCH COMMERCIAL UNDERTAKINGS AS JOINT-STOCK COMPANIES, CORPORATIONS, CO-OPERATIVE SOCIETIES OR SIMILAR UNDERTAKINGS THROUGH CHANNELS OF PUBLIC COMMUNICATIONS, IN REPORTS, IN STATEMENTS OF ACCOUNTS OR IN DECLJl.HATIONS TO THE GENERAL MEETING OR ANY PROPER OFFICIAL OF A COMPAlIY, IN NOTIFICATIONS TO, OR REGISTRATION WITH, ANY COMMI ~; SION, AGENCY OR OFFICER HAVING SUPERVISORY OR REGULATORY AUTHORI1 ~ ' OVER 51 4 CORPORATIONS, JOINT-STOCK COMPANIES, OR OTHER FORMS OF COMMERC,I AL UNDERTAKINGS .oR IN ANY INVITATlaN Ta THE ESTABLISHMENT .oF THaSE caMMERCIAL UNDERTAKINGS .oR Ta THE SUBSCRIPTlaN .oF SHARES. 28. UNLAWFUL ABUSE .oF .oFFICIAL AUTHaRITY WHICH RESULTS GRIEVaUS BaDILY INJURY .oR DEPRIVATlaN .oF THE LIFE, LIBERTY PRaPERTY .oF ANY PERsaN. EXTRADITlaN SHALL ALsa BE GRANTED ATTEMPTS Ta caMMIT, caNSPlRACY Ta caMMIT, .oR PARTICIPATlaN ANY .oF THE .oFFENSES MENTlaNED IN THIS ARTICLE. IN .oR FaR IN, EXTRADITlaN SHALL ALsa BE GRANTED FaR ANY .oFFENSE .oF WHICH .oNE .oF THE ABaVE MENTlaNED .oFFENSES IS THE SUBSTANTIAL ELEMENT, WHEN, FaR PURpaSES .oF GRANTING FEDERAL JURISDICTlaN Ta THE UNITED STATES GaVERNMENT, SUCH ELEMENTS AS TRANS paRTING , TRANS paRTATI aN , THE USE .oF THE MAILS .oR INTERSTATE FACILITIES MAY ALsa BE ELEMENTS .oF THE SPECIFIC .oFFENSE. upaN RECEIPT .oF THE REQUEST FaR EXTRADITlaN, SUCH REQUEST MAY BE DENIED BY THE APPRaPRIATE EXECUTIVE AUTHaRITY IN THE REQUESTED STATE IF THAT AUTHaRITY caNSIDERS THAT THE caURTS IN THE REQUESTED STATE waULD NaT IMPaSE A SENTENCE .oF DETENTlaN EXCEEDING FaUR MaNTHS FaR THE .oFFENSE FaR WHICH EXTRADITlaN HAS BEEN REQUESTED. ARTICLE 4 A REFERENCE IN THIS TREATY Ta THE TERRITaRY .oF A caNTRACTING STATE IS A REFERENCE Ta ALL THE TERRITaRY UNDER THE JURISDICTlaN .oF THAT caNTRACTING STATE, INCLUDING AIRSPACE AND TERRITaRIAL WATERS AND VESSELS AND AIRCRAFT REGISTERED IN THAT caNTRACTING STATE IF ANY SUCH AIRCRAFT IS IN FLIGHT .oR IF ANY SUCH VESSEL IS aN THE HIGH SEAS WHEN THE .oFFENSE IS caMMITTED. FaR THE PURpaSES .oF THIS TREATY AN AIRCRAFT SHALL BE caNSIDERED Ta BE IN FLIGHT FRaM THE MaMENT WHEN paWER IS APPLIED FaR THE PURpaSE .oF TAKE-aFF UNTIL THE MaMENT WHEN THE LANDING RUN ENDS. WHEN THE .oFFENSE FaR WHICH EXTRADITlaN HAS BEEN REQUESTED HAS BEEN caMMITTED .oUTSIDE THE TERR I TaRY .oF THE REQUESTING STATE, THE EXECUTIVE AUTHaRITY .oF THE UNI TED STATES .oR THE caMPETENT AUTHaRITY .oF DENMARK, AS APPRaPRIATE, SHALL HAVE THE paWER Ta GRANT EXTRADITlaN IF THE LAWS .oF THE REQUESTED STATE PRaVIDE FaR THE PUNISHMENT .oF SUCH AN .oFFENSE caMMITTED IN SIMILAR CIRCUMSTANCES. ARTICLE 5 THE UNITED STATES SHALL NaT BE BaUND Ta DELIVER U J ITS aWN NATIONALS AND DENMARK SHALL NaT BE BaUND Ta DELIV~R UP NATlaNALS .oF DENMARK, FINLAND, ICELAND, NaRWAY .oR SWEDEN, BJT THE EXECUTIVE AUTHaRITY .oF THE REQUESTED STATE SHALL, IF NaT PR ~VENTED BY THE 5 LAWS OF THAT STATE, EXTRADITE SUCH NATIONALS IF, IN ITS DISCRETION, IT BE DEEMED PROPER TO DO SO. IF EXTRADITION IS NOT GRANTED PURSUANT TO THIS ARTICLE, THE REQUESTED STATE SHALL SUBMIT THE CASE TO ITS COMPETENT AUTHORITIES FOR THE PURPOSE OF PROSECUTION. ARTICLE 6 EXTRADITION SHALL BE GRANTED ONLY IF THE EVIDENCE BE FOUND SUFFICIENT, ACCORDING TO THE LAWS OF THE PLACE WHERE THE PERSON SOUGHT SHALL BE FOUND, EITHER TO JUSTIFY HIS COMMITTAL FOR TRIAL IF THE OFFENSE OF WHICH HE IS ACCUSED HAD BEEN COMMITTED IN THAT PLACE OR TO PROVE THAT HE IS THE IDENTICAL PERSON CONVICTED BY THE COURTS OF THE REQUESTING STATE. IN THE CASE OF A REQUEST MADE TO THE GOVERNMENT OF DENMARK, THE DANISH AUTHORITIES, IN ACCORDANCE WITH DANISH EXTRADITION LAW, SHALL HAVE THE RIGHT TO REQUEST EVIDENCE TO ESTABLISH A PRESUMPTION OF GUILT OF A PERSON PREVIOUSLY CONVICTED. EXTRADITION MAY BE REFUSED IF SUCH ADDITIONAL EVIDENCE IS FOUND TO BE INSUFFICIENT. ARTICLE 7 EXTRADITION SHALL NOT BE GRANTED IN ANY OF THE FOLLOWING CIRCUMSTANCES: 1. WHEN THE PERSON WHOSE SURRENDER IS SOUGHT IS BEING PROCEEDED AGAINST OR HAS BEEN TRIED AND DISCHARGED OR PUNISHED IN THE TERRITORY OF THE REQUESTED STATE FOR THE OFFENSE FOR WHICH HIS EXTRADITION IS REQUESTED. IF THE CHARGE AGAINST A PERSON SOUGHT IN DENMARK HAS BEEN WAIVED, EXTRADITION MAY BE GRANTED ONLY IF THE CONDITIONS OF APPLICABLE DANISH LAW PERMIT. 2. WHEN THE PERSON WHOSE SURRENDER IS SOUGHT HAS BEEN TRIED AND ACQUITTED OR HAS UNDERGONE HIS PUNISHMENT IN A THIRD STATE FOR THE OFFENSE FOR WHICH HIS EXTRADITION IS REQUESTED. 3. WHEN THE PROSECUTION OR THE ENFORCEMENT OF THE PENALTY FOR THE OFFENSE HAS BECOME BARRED BY LAPSE OF TIME ACCORDING TO THE LAWS OF EITHER OF THE CONTRACTING STATES. 4. IF THE OFFENSE FOR WHICH HIS EXTRADITION IS REQUESTED IS A POLITICAL OFFENSE OR AN OFFENSE CONNECTED WITH A POLITICAL OFFENSE, OR IF THE REQUESTED STATE HAS REASON TO ASSUME THAT THE REQUISITION FOR HIS SURRENDER HAS, IN FACT, BEEN MADE WITH A VIEW TO TRY OR PUNISH HIM FOR A POLITICAL OFFENSE OR AN OFFENSE CONNECTED WITH A POLITICAL OFFENSE. IF ANY QUESTION ARISES AS TO WHETHER A CASE COMES WITHIN THE PROVISIONS OF THI3 SUBPARAGRAPH, IT SHALL BE DECIDED BY THE AUTHORITIES OF THE REQUESTED STATE. 6 5. IF IN SPECIAL CIRCUMSTANCES, HAVING PARTICULAR REGARD TO THE AGE, HEALTH OR OTHER PERSONAL CONDITIONS OF THE PERSON CONCERNED, THE REQUESTED STATE HAS REASON TO BELIEVE THAT EXTRADITION WILL BE INCOMPATIBLE WITH HUMANITARIAN CONSIDERATIONS. 6. IN RESPECT OF A MILITARY OFFENSE. EXTRADITION MAY BE REFUSED ON ANY OTHER GROUND WHICH IS SPECIFIED BY THE LAW OF THE REQUESTED STATE. ARTICLE 8 WHEN THE OFFENSE FOR WHICH THE EXTRADITION IS REQUESTED IS PUNISHABLE BY DEATH UNDER THE LAWS OF THE REQUESTING STATE AND THE LAWS 'OF THE REQUESTED STATE DO NOT PERMIT SUCH PUNISHMENT FOR THAT OFFENSE, EXTRADITION MAY BE REFUSED UNLESS THE REQUESTING STATE PROVIDES SUCH ASSURANCES AS THE REQUESTED STATE CONSIDERS SUFFICIENT THAT THE DEATH PENALTY SHALL NOT BE IMPOSED, OR, IF IMPOSED, SHALL NOT BE EXECUTED. ARTICLE 9 WHEN THE PERSON WHOSE EXTRADITION IS REQUESTED IS BEING PROCEEDED AGAINST OR IS LAWFULLY DETAINED IN THE TERRITORY OF THE REQUESTED STATE FOR AN OFFENSE OTHER THAN THAT FOR ·WHICH EXTRADITION HAS BEEN REQUESTED, THE DECISION WHETHER OR NOT TO EXTRADITE HIM MAY BE DEFERRED UNTIL THE CONCLUSION OF THE PROCEEDINGS AND THE FULL EXECUTION OF ANY PUNISHMENT HE MAY BE OR MAY HAVE BEEN AWARDED. ARTICLE 10 THE DETERMINATION THAT EXTRADITION BASED UPON THE REQUEST THEREFOR SHOULD OR SHOULD NOT BE GRANTED SHALL BE MADE IN ACCORDANCE WITH THE LAW OF THE REQUESTED STATE AND THE PERSON WHOSE EXTRADITION IS SOUGHT SHALL HAVE THE RIGHT TO USE SUCH REMEDIES AND RECOURSES AS ARE PROVIDED BY SUCH LAW. ARTICLE 11 THE REQUEST FOR EXTRADITION SHALL BE MADE THROUGH THE DIPLOMATIC CHANNEL. THE REQUEST SHALL BE ACCOMPANIED BY A DESCRIPTION OF THE PERSON SOUGHT, INFORMATION AS TO HIS NATIONALITY AND RESIDENCE IF AVAILABLE, A STATEMENT OF THE FACTS OF THE CASE, THE TEXT OF THE APPLICABLE LAWS OF THE REQUESTING STATE INCLUDING THE LAW DEFINING THE OFFENSE, THE LAW PRESCRIBING THE PUNISHMENT FOR THE OFFENSE, AND A STATEMENT THAT THE LEGAL PROCEEDINGS OR THE ENFORCEMENT OF THE PENALTY FOR THE OFFENSE HAVE NOT BEEN BARRED BY LAPSE OF TIME. WHEN THE REQUEST RELATES TO A PERSON WHO HAS NOT '~ET BEEN CONVICTED OR HAS BEEN CONVICTED AND NOT YET SENTElrCED, IT MUST ALSO BE ACCOMPANIED BY A WARRANT OF ARREST ISSUED BY A JUPGE OR 7 OTHER JUDICIAL OFFICER OF THE REQUESTING STATE AND BY SUCH EVIDENCE AS, ACCORDING TO THE LAWS OF THE REQUESTED STATE, WOULD JUSTIFY HIS ARREST AND COMMITTAL FOR TRIAL IF THE OFFENSE HAS BEEN COMMITTED THERE, INCLUDING EVIDENCE PROVING THE PERSON REQUESTED IS THE PERSON TO WHOM THE WARRANT OF ARREST REFERS. WHEN THE REQUEST RELATES TO A PERSON ALREADY CONVICTED AND SENTENCED, IT MUST BE ACCOMPANIED BY THE JUDGMENT OF CONVICTION AND SENTENCE PASSED AGAINST HIM IN THE TERRITORY OF THE REQUESTING STATE, BY A STATEMENT SHOWING HOW MUCH OF THE SENTENCE HAS NOT BEEN SERVED, AND BY EVIDENCE PROVING THAT THE PERSON REQUESTED IS THE PERSON TO WHOM THE SENTENCE REFERS. THE WARRANT OF ARREST AND DEPOSITION OR OTHER EVIDENCE, GIVEN UNDER OATH, AND THE JUDICIAL DOCUMENTS ESTABLISHING THE EXISTENCE OF THE CONVICTION AS WELL AS ANY SUPPLEMENTARY EVIDENCE DEMANDED BY THE DANISH AUTHORITIES UNDER ARTICLE 6 PARAGRAPH 2, OR CERTIFIED COPIES OF THESE DOCUMENTS, SHALL BE ADMITTED IN EVIDENCE IN THE EXAMINATION OF THE REQUEST FOR EXTRADITION WHEN, IN THE CASE OF A REQUEST EMANATING FROM DENMARK, THEY BEAR THE SIGNATURE OR ARE ACCOMPANIED BY THE ATTESTATION OF A JUDGE, MAGISTRATE OR OTHER OFFICIAL OR ARE AUTHENTICATED BY THE OFFICIAL SEAL OF THE MINISTRY OF JUSTICE AND, IN ANY CASE, ARE CERTIFIED BY THE PRINCIPAL DIPLOMATIC OR CONSULAR OFFICER OF THE UNITED STATES IN DENMARK, OR WHEN, IN THE CASE OF A REQUEST EMANATING FROM THE UNITED STATES, THEY ARE SIGNED BY OR CERTIFIED BY A JUDGE, MAGISTRATE OR OFFICER OF THE UNITED STATES AND THEY ARE SEALED BY THE OFFICIAL SEAL OF THE DEPARTMENT OF STATE. ANY DEPOSITION OR OTHER EVIDENCE WHICH HAS NOT BEEN GIVEN UNDER OATH BUT WHICH OTHERWISE MEETS THE REQUIREMENTS SET FORTH IN THIS PARAGRAPH SHALL BE ADMITTED IN EVIDENCE AS A DEPOSITION OR EVIDENCE GIVEN UNDER OATH WHEN THERE IS AN INDICATION THAT THE PERSON, PRIOR TO D?POSING BEFORE THE JUDICIAL AUTHORITIES OF THE REQUESTING STATE, WAS INFORMED BY THOSE AUTHORITIES OF THE PENAL SANCTIONS TO WHICH HE WOULD BE SUBJECT IN THE CASE OF FALSE OR INCOMPLETE STATEMENTS. THE REQUESTED STATE MAY REQUIRE THAT THE DOCUMENTS IN SUPPORT OF THE -REQUEST FOR EXTRADITION BE TRANSLATED INTO THE LANGUAGE OF THE REQUESTED STATE. ARTICLE 12 IN CASE OF URGENCY A CONTRACTING STATE MAY APPLY FOR THE PROVISIONAL ARREST OF THE PERSON SOUGHT PENDING THE PRESENTATION OF THE REQUEST FOR EXTRADITION THROUGH THE DIPLO~~\TIC CHANNEL. THIS APPLICATION MAY BE MADE EITHER THROUGH THE Ir ~ PLOMATIC CHANNEL OR DIRECTLY BETWEEN THE UNITED STATES DEPARTMENT OF JUSTICE AND THE DANISH MINISTRY OF JUSTICE. THE 1.PPLICATION SHALL CONTAIN A DESCRIPTION OF THE PERSON SOUGHT, AN INDICATION OF INTENTION TO REQUEST THE EXTRADITION OF THE PI:l ~ SON SOUGHT AND p/ 8 A STATEMENT OF THE EXISTENCE OF A WARRANT OF ARREST OR, IF CONVICTED AND SENTENCED, A JUDGMENT OF CONVICTION AGAINST THAT PERSON, AND SUCH FURTHER INFORMATION, IF ANY, AS WOULD BE NECESSARY TO JUSTIFY THE ISSUE OF A WARRANT OF ARREST HAD THE OFFENSE BEEN COMMITTED, OR THE PERSON SOUGHT BEEN CONVICTED, IN THE TERRITORY OF THE REQUESTED STATE. ON RECEIPT OF SUCH AN APPLICATION THE REQUESTED STATE SHALL TAKE THE NECESSARY STEPS TO SECURE THE ARREST OF THE PERSON CLAIMED. A PERSON ARRESTED UPON SUCH AN APPLICATION MAY BE SET AT LIBERTY UPON THE EXPIRATION OF THIRTY DAYS FROM THE DATE OF HIS ARREST IF A REQUEST FOR HIS EXTRADITION ACCOMPANIED BY THE DOCUMENTS SPECIFIED IN ARTICLE 11 SHALL NOT HAVE BEEN RECEIVED. THE REQUESTING STATE MAY REQUEST, SPECIFYING THE REASONS THEREFOR, AN EXTENSION OF THE PERIOD OF DETENTION FOR A PERIOD NOT TO EXCEED THIRTY DAYS, AND THE APPROPRIATE JUDICIAL AUTHORITY OF THE REQUESTED S.TATE SHALL HAVE THE AUTHORITY TO EXTEND THE PERIOD OF DETENTION. THE RELEASE FROM CUSTODY PURSUANT TO THIS PROVISION SHALL NOT PREVENT THE INSTITUTION OF PROCEEDINGS WITH A VIEW TO EXTRADITING THE PERSON SOUGHT IF THE REQUEST IS SUBSEQUENTLY RECEIVED. ARTICLE 13 IF THE REQUESTED STATE REQUIRES ADDITIONAL EVIDENCE OR INFORMATION TO ENABLE IT TO DECIDE ON THE REQUEST FOR EXTRADITION, SUCH EVIDENCE OR INFORMATION SHALL BE SUBMITTED TO IT WITHIN SUCH TIME AS THAT STATE SHALL REQUIRE. IF THE PERSON SOUGHT IS UNDER ARREST AND THE ADDITIONAL EVIDENCE OR INFORMATION SUBMITTED AS AFORESAID IS NOT SUFFICIENT, OR IF SUCH EVIDENCE OR INFORMATION IS NOT RECEIVED WITHIN THE PERIOD SPECIFIED BY THE REQUESTED STATE, HE SHALL BE DISCHARGED FROM CUSTODY. SUCH DISCHARGE SHALL NOT BAR THE REQUESTING STATE FROM SUBMITTING ANOTHER REQUEST IN RESPECT OF THE SAME OFFENSE. ARTICLE 14 A PERSON EXTRADITED UNDER THE PRESENT TREATY SHALL NOT BE DETAINED, TRIED OR PUNISHED IN THE TERRITORY OF THE REQUESTING STATE FOR AN OFFENSE OTHER THAN THAT FOR WHICH EXTRADITION HAS BEEN GRANTED NOR BE EXTRADITED BY THAT STATE TO A THIRD STATE UNLESS: 1. HE HAS LEFT THE TERRITORY OF THE REQUESTING STATE AFTER HIS EXTRADITION AND HAS VOLUNTARILY RETURNED TO IT; 2. HE HAS NOT LEFT THE TERRITORY OF THE REQUE:3TING STATE WITHIN FORTY-FIVE DAYS AFTER BEING FREE TO DO SO; OR 9 3. THE REQUESTED STATE HAS CONSENTED TO HIS DETENTION, TRIAL, PUNISHMENT OR TO HIS EXTRADITION TO A THIRD STATE FOR AN OFFENSE OTHER THAN THAT FOR WHICH EXTRADITION WAS GRANTED. A PERSON WHO HAS BEEN SET AT LIBERTY, SHALL BE INFORMED OF THE CONSEQUENCES TO WHICH HIS STAY IN THE TERRITORY OF THE REQUESTING STATE MAY SUBJECT HIM. THESE STIPULATIONS SHALL NOT APPLY TO OFFENSES COMMITTED AFTER THE EXTRADITION. ARTICLE 15 A REQUESTED STATE UPON RECEIVING TWO OR MORE REQUESTS FOR THE EXTRADITION OF THE SAME PERSON EITHER FOR THE SAME OFFENSE, OR FOR DIFFERENT OFFENSES, SHALL DETERMINE TO WHICH OF THE REQUESTING STATES IT WILL EXTRADITE THE PERSON SOUGHT, TAKING INTO CONSIDERATION THE CIRCUMSTANCES AND PARTICULARLY THE POSSIBILITY OF A LATER EXTRADITION BETWEEN THE REQUESTING STATES, THE SERIOUSNESS OF EACH OFFENSE, THE PLACE WHERE THE OFFENSE WAS COMMITTED, THE NATIONALITY AND RESIDENCE OF THE PERSON SOUGHT, THE DATES UPON WHICH THE REQUESTS WERE RECEIVED AND THE PROVISIONS OF ANY EXTRADITION AGREEMENTS BETWEEN THE REQUESTED STATE AND THE OTHER REQUESTING STATE OR STATES. ARTICLE 16 THE REQUESTED STATE SHALL PROMPTLY COMMUNICATE TO THE REQUESTING STATE THROUGH THE DIPLOMATIC CHANNEL THE DECISION ON THE REQUEST FOR EXTRADITION, AND, IF GRANTED, THE PERIOD THE PERSON SOUGHT HAS BEEN UNDER DETENTION PURSUANT TO THE REQUEST FOR EXTRADITION. IF THE EXTRADITION HAS BEEN GRANTED, THE AUTHORITIES OF THE REQUESTING AND THE REQUESTED STATES SHALL AGREE UPON THE TIME AND PLACE OF SURRENDER OF THE PERSON SOUGHT. IF THE EXTRADITION HAS NOT BEEN EFFECTED, THE REQUESTED STATE MAY SET THE PERSON SOUGHT AT LIBERTY WITHIN SUCH TIME AS REQUIRED BY THE LAW OF THE REQUESTED STATE, AND THE REQUESTED STATE MAY SUBSEQUENTLY REFUSE TO EXTRADITE THAT PERSON FOR THE SAME OFFENSE. ARTICLE 17 TO THE EXTENT PERMITTED UNDER THE LAW OF THE REQUESTED STATE AND SUBJECT TO THE RIGHTS OF THIRD PARTIES, WHICH SHALL BE DULY RESPECTED, ALL ARTICLES ACQUIRED AS A RESULT OF T~E OFFENSE OR WHICH MAY BE REQUIRED AS EVIDENCE SHALL, IF FOUND, BE SURRENDERED IF EXTRADITION IS GRANTED. SUBJECT TO THE QUALIFICATIONS OF THE FIRST PARAGR\PH, THE ABOVE - MENTIONED ARTICLES SHALL BE RETURNED TO THE REQUESTING 10 STATE EVEN IF THE EXTRADITION, HAVING BEEN AGREED TO, CANNOT BE EFFECTED OWING TO THE DEATH OR ESCAPE OF THE PERSON SOUGHT. ARTICLE 18 THE RIGHT TO TRANSPORT THROUGH THE TERRITORY OF ONE OF THE CONTRACTING STATES A PERSON SURRENDERED TO THE OTHER CONTRACTING STATE BY A THIRD STATE SHALL BE GRANTED ON REQUEST MADE THROUGH THE DIPLOMATIC CHANNEL, PROVIDED THAT CONDITIONS ARE PRESENT WHICH WOULD WARRANT EXTRADITION OF SUCH PERSON BY THE STATE OF TRANSIT AND REASONS OF PUBLIC ORDER ARE NOT OPPOSED TO THE TRANSIT. THE STATE TO WHICH THE PERSON HAS BEEN EXTRADITED SHALL REIMBURSE THE STATE THROUGH WHOSE TERRITORY SUCH PERSON IS TRANSPORTED FOR ANY EXPENSES INCURRED BY THE LATTER IN CONNECTION WITH SUCH TRANSPORTATION. ARTICLE 19 EXPENSES RELATED TO THE TRANSLATION OF DOCUMENTS AND TO THE TRANSPORTATION OF THE PERSON SOUGHT SHALL BE PAID BY THE REQUESTING STATE. THE APPROPRIATE LEGAL OFFICERS OF THE REQUESTED STATE SHALL, BY ALL LEGAL MEANS WITHIN THEIR POWER, ASSIST THE OFFICERS OF THE REQUESTING STATE BEFORE THE RESPECTIVE JUDGES AND MAGISTRATES. NO PECUNIARY CLAIM, ARISING OUT OF THE ARREST, DETENTION, EXAMINATION AND SURRENDER OF PERSONS SOUGHT UNDER THE TERMS OF THIS TREATY, SHALL BE MADE BY THE REQUESTED STATE AGAINST THE REQUESTING STATE. ARTICLE 20 THIS TREATY SHALL APPLY TO OFFENSES MENTIONED IN ARTICLE 3 COMMITTED BEFORE AS WELL AS AFTER THE DATE THIS TREATY ENTERS INTO FORCE, PROVIDED THAT NO EXTRADITION SHALL BE GRANTED FOR AN OFFENSE COMMITTED BEFORE THE DATE THIS TREATY ENTERS INTO FORCE WHICH WAS NOT AN OFFENSE UNDER THE LAWS OF BOTH STATES AT THE TIME OF ITS COMMISSION. ARTICLE 21 THIS TREATY SHALL BE SUBJECT TO RATIFICATION AND THE INSTRUMENTS OF RATIFICATION SHALL BE EXCHANGED AT WASHINGTON AS SOON AS POSSIBLE. THIS TREATY SHALL ENTER INTO FORCE ON THE THIRTIETH DAY AFTER THE DATE OF THE EXCHANGE OF INSTRUMENTS OF RATIFICATION. IT MAY BE TERMINATED BY EITHER CONTRACTING STATE GIVING NOTICE OF TERMINATION TO THE OTHER CONTRACTING STATE AT ANY TIME AND THE TERMINATION SHALL BE EFFECTIVE SIX MONTHS AFTER T::E DATE OF RECEIPT OF SUCH NOTICE. 11 IN WITNESS WHEREOF THE UNDERSIGNED, BEING DULY AUTHORIZED THERETO BY THEIR RESPECTIVE GOVERNMENTS, HAVE SIGNED THIS TREATY. DONE IN DUPLICATE, IN THE ENGLISH AND DANISH LANGUAGES, BOTH EQUALLY AUTHENTIC, AT COPENHAGEN THIS TWENTY - SECOND DAY OF JUNE, 1972. FOR THE UNITED STATES OF AMERICA: (SIGNATURE) /1/ FOR THE KINGDOM OF DENMARK: (SIGNATURE) /2/ (SEAL) (SEAL) /1/ FRED J. RUSSELL /2/ K. B. ANDERSEN CERTIFICATE OF SERVICE BY MAIL 1 2 I, _ _ _ _ _----'RE~G~IN~A~A~U~T~RE~Y~_ _ _ _ _ , declare: 3 That I am a citizen of the United States and resident or employed in Los Angeles County, 4 5 California; that my business address is Office of United States Attorney, United States 6 Courthouse, 312 North Spring Street, Los Angeles, California 90012; that I am over the age of 7 eighteen years, and am not a party to the above-entitled action; That I am employed by the United States Attorney for the Central District of California 8 9 who is a member of the bar of the United States District Court for the Central District of 10 California, at whose direction the service by mail described in this Certificate was made; that on 11 1I _ _ _---"-J~un~e~20""','_'2"'_'0"_>0'_"2'_____ , I deposited in the United States mails in the United States 12 Courthouse at 312 North Spring Street, Los Angeles, California, in the above-entitled action, in an 13 envelope bearing the requisite postage, a copy of: UNITED STATES' REPLY TO 14 PEDERSEN'S MEMORANDUM OF POINTS AND AUTHORITIES RE EXTRADITION; 15 DECLARATION OF MATTHEW Eo SLOAN; EXHIBITS 16 17 addressed to: Robert L. Shapiro, Esq. Glaser, Weil & Shapiro, LLP 18 2121 Avenue of the Stars 19 18th Floor Los Angeles, California 90067 20 21 at _~H~l~·s__ last known address, at which place there is a delivery service by United States 22 Mail. 23 This Certificate is executed on _ _---'J'-"u=n=e-=2:..:::0'-'-,.=2=0=02=--__ at Los Angeles, California. 24 I certify under penalty of peIjury that the foregoing is true and correct. 25 26 27 28