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UNITED STATES v. JURADO-RODRIGUEZ

November 3, 1995

UNITED STATES OF AMERICA, against JOSE FRANKLIN JURADO-RODRIGUEZ and EDGAR ALBERTO GARCIA-MONTILLA, Defendant


The opinion of the court was delivered by: WEINSTEIN

 Jack B. Weinstein

 Senior United States District Judge:

 TABLE OF CONTENTS

 I. INTRODUCTION

 II. FACTS AND PROCEDURE

 
A. Luxembourg Statute
 
B. Luxembourg Investigation
 
C. Luxembourg Conviction
 
D. United States Extradition Request
 
E. Luxembourg Extradition Decree
 
F. United States Prosecution

 III. EXTRADITION PROVISIONS

 IV. SUMMARY OF EXPERT TESTIMONY

 
A. Christopher Blakesley
 
B. Cherif Bassiouni

 V. PRINCIPLES OF SPECIALTY AND NON BIS IN IDEM

 
A. Rule of Specialty
 
B. Application of the Specialty Doctrine to the United States-Luxembourg Extradition Treaty and Decree
 
C. Non Bis In Idem
 
D. Meaning of Faits
 
E. United States Procedure and Sentencing Rules Apply

 VI. BURDEN OF PROOF

 VII. APPLICATION OF LAW TO FACTS

 
A. Count Two
 
B. Count One
 
C. Forfeiture Allegations

 VIII. CONCLUSION

 I. INTRODUCTION

 Extradited from Luxembourg, and indicted on two counts: 1) conspiring to distribute and to possess with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and 2) conducting financial transactions involving the proceeds of narcotics trafficking (money laundering), 18 U.S.C. § 1956(a)(1)(B)(i), Jose Franklin Jurado-Rodriguez and Edgar Garcia-Montilla move to dismiss. They claim that the indictment violates the terms of Luxembourg's extradition decree and that it constitutes double jeopardy.

 Count two must be dismissed. Luxembourg has already tried and convicted defendants for the crime of money laundering under a rule of substantive law almost identical to the one the United States relies on in count two, utilizing essentially the same evidence supporting that count. Prosecution would violate the double jeopardy principles incorporated in Luxembourg's non bis in idem doctrine and the conditional limitation included in its extradition decree.

 Prosecution on count one does not violate Luxembourg's non bis in idem or its extradition decree. Count one involves a separate offense of longer duration and wider scope. It is based partly on evidence of money laundering in Europe relied upon at the Luxembourg trial and partly on additional evidence of widespread narcotics dealings in the United States, Colombia and elsewhere.

 This litigation presents a question of first impression. Because defendants are incarcerated and their trial must be held in abeyance while the government appeals, an order and memorandum is issued now. The parties are urged to expedite the appeal.

 II. FACTS AND PROCEDURE

 
A. Luxembourg Statute

 On July 7, 1989, a new law took effect in Luxembourg that was designed to discourage international criminals from using the financial institutions of that country to launder narcotics proceeds. This new law amended the Luxembourg law of 19 February 1973 regarding the sale of medicinal substances and the fight against drug addiction. It added Articles 8.1 and 8.2. Article 8.1 covers the substantive crimes and penalties:

 
Punishment consisting of imprisonment for one to five years and a fine of 5,000 to 50,000,000 francs, or either of the foregoing penalties alone, shall be imposed on anyone who knowingly facilitates or attempts to facilitate [the presentation of] false evidence of the origin of the resources or assets of a person who has committed any of the violations mentioned in item a) or b) under Article 8 [narcotics trafficking], and on anyone who knowingly or through ignorance of his professional obligations lends his assistance to any operations involving the investment, concealment, or conversion of the proceeds of such a violation.

 Article 8.2 covers forfeiture:

 
In the cases mentioned in item a) or item b) under Article 8, the court ... shall furthermore order the confiscation of the personal property or real estate, whether jointly or severally held, of the condemned person that was acquired through the proceeds of the violation.
 
B. Luxembourg Investigation

 Responding to the new law, seven of Luxembourg's banks reported that Jurado, working on behalf of Garcia, had been overseeing suspicious deposits of United States dollars into accounts he opened in the names of Heriberto Castro-Meza and Esperanza Rodriguez de Castro. Upon opening these accounts Jurado had explained to bank officials that the Castro-Mezas were wealthy industrialists. Although bank officials had initially accepted this explanation, they initiated closer scrutiny of the accounts after Luxembourg's new law took effect.

 The Luxembourg National Police began to investigate in October 1989. Wiretaps were installed on Jurado's residential telephone. The inquiry revealed that from approximately 1987 through 1990, under Garcia's instructions, Jurado had travelled extensively throughout Europe for the purpose of opening bank accounts and transferring money between accounts maintained in the names of Castro-Meza and Rodriguez de Castro. Both Castro-Meza and Rodriguez de Castro were known to be associates of Jose Santacruz-Londono, a major player in the Cali drug cartel. In the Spring of 1990 the Luxembourg authorities obtained assistance from the United States Drug Enforcement Agency. It identified Castro-Meza as Santacruz-Londono's father-in-law. The D.E.A. provided the Luxembourg police with equipment to install wiretaps on Jurado's fax and telephone numbers. By June 1990 Luxembourg ...


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