Attorney General -v- Mullan, [2018] IEHC 721 (2018)

Docket Number:2017 No. 273 EXT
Party Name:Attorney General, Mullan
 
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THE HIGH COURT[RECORD NO. 2017/273 EXT]

BETWEEN

ATTORNEY GENERALAPPLICANTAND

DANIEL MULLANRESPONDENTJudgment of Ms. Justice Donnelly delivered on the 14th day of December, 2018

1.0 Introduction

1.1 The United States of America (“the U.S.A.”) seeks the extradition of the respondent for the purpose of putting him on trial in U.S. Federal Court in respect of four alleged offences relating to child sexual exploitation or child pornography. It is alleged that the respondent engaged in the sexual exploitation of a child, the transportation of a minor with intent to engage in sexual activity and two counts of possession of child pornography.

1.2 The main points of objection to extradition are; the offences do not correspond with offences in this jurisdiction, his extradition will create a real risk of cruel and inhumane or degrading treatment due to his frail health and, the sentencing regime in the U.S.A. would expose the respondent to a breach of his fundamental rights. Other issues were also raised by the respondent and will be addressed in the course of this judgment.

2.0 The Extradition Act, 1965 and the Ireland- U.S.A. Treaty provisions

2.1 This application for the extradition of the respondent to the U.S.A. is governed by the Extradition Act, 1965 (“the Act of 1965”) and the extradition treaty arrangements as between Ireland and the U.S.A.. The Attorney General submitted that the formal requirements of the Act of 1965 and the treaty provisions were usefully and conveniently set out by the High Court (Edwards J.) in Attorney General v. O’Gara [2012] IEHC 179. The Court agrees that is so and relies upon Edwards J.’s dicta on the legal provisions and required proofs.

3. The Formal Proofs for Extradition

3.1 Save for a single issue on the correspondence of the offences which shall be addressed later in this judgment, no other issue as regards non-compliance with formal proofs was raised by the respondent. The Court, in carrying out its duty under the provisions of the Act of 1965, is bound to consider whether the extradition is prohibited under the terms of the said Act.

Extradition to a Country to which Part II of the Act of 1965 applies3.2 As Edwards J. has set out in O’Gara, a request for extradition can only be duly made if the requesting state is one to which Part II of the Act of 1965 applies. Having considered the relevant legislation and statutory instruments, I am satisfied that the U.S.A. is a country to which Part II of the Act of 1965 applies.

A person before the High Court under section 27 of the Act of 19653.3 The first condition that must be met, if the High Court is to commit a person to prison to await extradition, is that the person must be before the High Court under s. 26 or s.27 of the Act of 1965. This respondent is before the High Court under the provisions of s.27(1) of the Act of 1965. This arose in circumstances where the High Court, issued a warrant for the arrest of the respondent on the 14th day of October, 2017, following a request for his provisional arrest by the appropriate authorities in the U.S.A. dated 12th October, 2017.

3.4 The respondent was duly arrested on foot of the arrest warrant issued pursuant to s. 27 of the Act of 1965 and brought before the High Court on the 17th day of October 2017. The Court is satisfied that the respondent is before the High Court under s. 27 of the Act of 1965.

Extradition Duly Requested3.5 The Court must be satisfied under s. 9 of the Act of 1965, that the request for surrender has been duly requested. Under s. 23, the request must be in writing from a diplomatic agent or by any other means provided in the relevant extradition provisions.

3.6 On the 10th October, 2017, a request for his extradition was made by United States of America. It was communicated to the Department of Foreign Affairs and Trade by the Embassy of the U.S.A. in Dublin and was dated 13th October, 2017. The integrated Washington Treaty provides that the request for extradition shall be made in writing and shall be transmitted with supporting documents through the diplomatic channel. In this case, the extradition has been transmitted through the diplomatic channel.

Section 26(1)(a) – Minister’s Certificate:3.7 The Minister certified on the 19th October 2017, pursuant to s.26(1)(a) of the Act of 1965, that the extradition request for the respondent had been duly made by and on behalf of the U.S.A. and received by him in accordance with Part II of the Act of 1965.

Section 25(a) – certified copy of U.S. warrant of arrest:3.8 I am satisfied that Michael R. Maffei, Assistant U.S. Attorney, U.S. Attorney Office for the Eastern District of New York has exhibited to his affidavit of 2nd October, 2017, the certified copy of the arrest warrant for the respondent. This warrant is dated 7th September, 2017.

Section 25(c) – Relevant enactments:3.9 I am satisfied that the relevant enactments are exhibited in the affidavit of Michael R. Maffei.

Section 25(d) – Description of the person claimed:3.10 There is a photograph of the respondent exhibited to the affidavit of Michael R. Maffei. Furthermore, Mr Maffei has set out an extensive description of the person claimed. This sets out the respondent’s date of birth as well as a person description. There is also a similar description of the respondent in the Diplomatic Note. The respondent accepted that he was the person described in the extradition request. The Court is satisfied that s.25(d) has been complied with.

Section 25(b) – Statement of offences:3.11 The statement of the offences is set out in the Diplomatic Note and (in greater detail) in the affidavit Michael R. Maffei – both in the body of the affidavit and in the superseding indictment exhibited to his affidavit. They are also set out in the affidavit of Cindy Wolff, as Special Agent with the Federal Bureau of Investigations. In the course of legal submission regarding the issue of correspondence, counsel for the respondent took issue with whether there was correspondence with offences in this jurisdiction. This matter will be dealt with under the heading correspondence of offences below.

Conclusion on formal proofs:3.12 Subject to further consideration of s.25(b), the Court is satisfied that the formal proofs, for the purpose of the application for extradition, have been complied with by the applicant.

4. Correspondence of offences and sufficiency of detail

4.1 The Diplomatic Note contains a brief statement regarding the four alleged offences, together with a formal statement of each of the counts. That statement is supplemented by the Affidavit of Mr. Maffei and the Superseding Indictment exhibited therein as well as the affidavit of Cindy Wolff. A synopsis of the counts and the statement of facts are set out below.

4.2 Count 1: Sexual Exploitation of a Minor Mr Maffei alleges that the respondent in or about and between January 1999 and December 2006 (dates are approximate) within the Eastern District of New York and elsewhere did knowingly and intentionally employ, use, persuade, induce, entice and coerce a minor to engage in sexually explicit conduct, for the purpose of producing one or more visual depictions of such conduct, knowing and having reason to know that such visual depictions would be transported and transmitted using a means and facility of interstate and foreign commence and in affecting interstate and foreign commerce, which visual depictions were produced and transmitted using materials that had been mailed, shipped and transported in and affecting interstate and foreign commerce by any means including by computer, one or more cameras, cassette tapes, videotapes and DVDs. This conduct is contrary to Title 18, United States Code, Sections 2251(a). 2251(d) and 3551 and carries a maximum term of 20 years imprisonment.

4.3 Mr Maffei set out the legal components of the offence. His description of the charge states that to satisfy the burden of proof and convict the respondent, the U.S. government would have to establish beyond reasonable doubt; (1) that the victim was under the age of eighteen; (2) that the defendant used, employed, persuaded, induced, enticed or coerced the victim to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) that the defendant knew or had reason to know that the visual depiction would be mailed or transported in interstate or foreign commerce or that the visual depiction was produced using materials that had been mailed or transported in interstate or foreign commerce.

4.4 Mr Maffei avers that the U.S. government will establish each of the required elements. This is contended on the basis that on the 13th June, 2017 a witness, known as Witness 1, who personally met the respondent in the past, was present at the FBI offices in New York. Mr Maffei avers that Witness 1 has known the respondent for 30 years, was a former family friend and informed the FBI agents that when he was 15 or 16 years of age and living in Florida, U.S.A., the respondent picked him up from school, took him to a hotel, paid him $100 and then the respondent videotaped Witness 1 engaging in a sexual act.

Count 2: Transportation of a Minor with Intent to Engage in Sexual Activity In or about December 1999, within the Eastern District of New York and elsewhere, the respondent did knowingly and intentionally transport an individual who had not yet attained the age of 18 years with the intent that the individual engage in sexual activity for which any person can be charged with a criminal offence. This is conduct is contrary to Title 18 United States Code, Sections 2423(a), 2427 and 3551 and carry a maximum term of 15 years imprisonment.

4.5 Mr Maffei set out the legal components of the offence. He avers that in order to meet the burden of proof regarding the transportation of a minor with intent to engage in sexual activity the U.S. government would have to prove beyond reasonable doubt; (1) that the...

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