Attorney General v Burns
| Jurisdiction | Ireland |
| Judgment Date | 10 December 2003 |
| Judgment citation (vLex) | [2003] 12 JIC 1002 |
| Date | 10 December 2003 |
| Docket Number | HC 224/04 [2002 No. 2689S.S.] |
| Court | High Court |
THE HIGH COURT
HC 224/04
[2002 No. 2689S.S.]
Criminal law - Extradition - Practice and procedure - Lapse of time - Comity of Nations - Rule of Speciality - Whether correspondence between offences in United States and Ireland- Whether extradition proceedings properly constituted - Extradition Acts, 1965 - 2001 - Rules of the Superior Courts, 1986 - Extradition (European Union Conventions) Act, 2001.
Facts: The extradition of the appellant to the United States had been sought on foot of offences relating to health care fraud and mail fraud. The District Court had heard the original extradition application and had made the extradition order sought. The appellant brought a case stated to the High Court and contended that the decision of the District Court was incorrect in law. A number of grounds were advanced by the appellant. It was contended that the supporting documentation produced by the US authorities was flawed and could not ground the extradition warrant. In addition it was alleged that some of the offences in question did not correspond with offences in this jurisdiction and furthermore some of the offences constituted revenue offences and could not be a basis for extradition. It was also submitted that prosecution in respect of some of the alleged offences was statute barred due to the length of time that had passed since their alleged commission. The appellant also contended that he would be charged with additional offences if extradited and also that sentence guidelines in the US were such that he could be punished for unindicted conduct. The appellant also complained that the US made no provision for the rule of speciality.
Held by Ó Caoimh J in answering the case stated. The alleged offences were not revenue offences and extradition could be ordered in respect of same. The limitation period in respect of some of the alleged offences had not expired and that appellant had not become immune from prosecution. Provision had been made for the operation of the rule of speciality in the extradition agreement between this jurisdiction and the US and the appellant had failed to show that the US authorities would disregard this. The District Court judge was entitled to contend that there was correspondence between the offences charged and offences in this jurisdiction. The determination of the District Court had been correct in law.
Reporter: R.F.
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 10th December. 2003.
This matter comes before this Court on appeal by way of case stated from a decision of the District Court (Judge Conal Gibbons) made on 25th June, 2002, on the application in writing of the appellant, he being dissatisfied with the determination of the District Court judge as being erroneous on a point of law.
The case stated recites that the matter came before Judge Gibbons at the Dublin Metropolitan District Court on l0th June, 2002 and following days on an application by the Attorney General for the extradition of the appellant to the United
States of America pursuant to the provisions of the Extradition Act, 1965, as amended. It appears from the case stated that this application was on foot of the request from the Government of the United States of America dated the 18th January, 2002, together with supporting documentation furnished to the District Court and a further letter from the United States Government dated 29th January, 2002.
The case stated recites the documentation that was furnished to the District Court which documentation was appended to the case stated herein. It appears from the case stated that the extradition of the applicant was sought only in respect of counts 1 to 15 and counts 26, 28 and 29 of the indictment, which indictment formed part of the supporting documentation.
The case stated reveals that the appellant was arrested by Detective Sergeant Heffernan of the Extradition Section, Garda Headquarters on 14 January, 2002, at Howth Summit, Howth in the County of Dublin on foot of a provisional warrant of arrest issued by the District Court on 12th January, 2002, pursuant to the provisions of the Extradition Act, 1965. The applicant was taken initially to Howth Garda Station where he gave his name and address and ultimately was taken to the Bridewell Garda Station and later to the District Court which remanded him in custody from time to time.
Mr. Robert Adams, a trial attorney in the United States Department of Justice, Criminal Division, Fraud Section, gave evidence to the District Court that all of the offences on which the appellant’s extradition was being sought had occurred in the United States of America, that they had no political connotations, that they were not revenue offences and did not attract the death penalty. He further indicated that no charges were pending against the appellant in any other country in respect of these offences. He indicated that the appellant had a United States passport and appeared to
have been born in the United States of America. He conceded that he had never seen the appellant before. He confirmed that Messrs. Ashcroft and Powell, who were named in the supporting documents, were Cabinet level officers appointed by the President of the United States of America and as such were equivalent to a Minister in the Irish Government.
It is indicated in the case stated that Mr. Adams, when cross-examined by counsel on behalf of the appellant, agreed that the conspiracy charged in count no. 1 of the indictment was an agreement to commit two separate offences, namely health care fraud and mail fraud. The case stated indicates that he stated that proof of the use of the mail was a necessary element of the offence of mail fraud and was not simply a jurisdictional matter. The case stated also indicates that he stated that the conspiracy charged was alleged to date from 1993 onwards. He conceded that the statutory limitation period applicable to the offence was five years but stated that, in the case of conspiracy, the time runs from the last act in furtherance of the conspiracy, although this was not set out in the United States Code but was a result of a judicial decision. The District Court judge records that he was unable to give a citation for such an authority. He indicated that since the health care statute was not enacted until 1996, the United States Government was applying on acts of the appellant from 1993 to 1996 to support mail fraud and on acts from 1996 on to support health care fraud. It was conceded that acts committed prior to 1996 could not violate the health care statutes. He also agreed that the jury could not divide the charges as laid and if they found evidence of either mail fraud or health care fraud they could find the appellant guilty of the conspiracy charge. If the appellant was convicted of this count, he would be punished for all the conduct alleged from 1993 onwards.
Mr. Adams also agreed that the Federal Sentencing Guidelines permit judges to take into account uncharged conduct when sentencing defendants so that a defendant might be punished for offences with which he was never charged. It is recorded that the sentencing guidelines provide for a base offence level and that the court then examined the conduct for characterisation of the offence which could move the level upwards thereby attracting a greater sentence. However the sentence could not exceed the statutory maximum for the offence. Under the sentencing guidelines relevant conduct included unindicted bad conduct. Matters which could be taken into consideration by a sentencing court included similar offences and loss attributable to unindicted conduct. The conduct charged on counts 16 to 26 inclusive could be taken into consideration by a federal court when sentencing a defendant in a criminal case, notwithstanding the fact that the applicant’s extradition was not sought on these counts. It appears that Mr. Adams did not know if the rule of specialty would apply to a case in which the defendant had been extradited from another jurisdiction so as to prevent this occurring. It appears that he was not familiar with the manner in which the Federal Sentencing Guidelines are applied in cases such as the present.
Counsel for the appellant referred Mr. Adams to a number of authorities. Mr. Adams pointed out that none of the cases cited were from the 4th Circuit of Appeals which were the courts governing West Virginia and he did not know what the law in West Virginia was in relation to the application of the rule of speciality. The cases in question are
U. S. v. Andonian
-
U. S. v. Lazarevich
and
-
U. S. v. Labaron.
Mr. Adams agreed that at the appellant’s trial other claims concerning patients other than those expressly referred to in the indictment could be introduced in evidence.
The submissions made by counsel on behalf of the appellant’s before the District Court are recorded in the case stated at para. 4 and are as follows:
1. That the onus is on the Attorney General to satisfy the court that all the statutory requirements would be met and, if the evidence is not sufficient to so satisfy the court, the court should order the discharge of the appellant.
2. The request for extradition in the present case does not comply with the requirement of s. 37 of the Extradition Act, 1965 which provides: “A document supporting a request for extradition shall be received in evidence without further proof of it which purports to be...
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