The opinion of the court was delivered by: STANTON
This case has taken an unusual procedural course after the imposition of sentence and presents a question of the extent to which service of defendant's previously-imposed sentence is lawful under the terms of his extradition from Switzerland.
Extradition and Application for Re-sentence
Defendant Farhad Bakhtiar was convicted in April 1992 of counts one through thirteen of a superseding indictment charging him with conspiracy, bank fraud, wire fraud, money laundering, illegal monetary transactions using the proceeds of criminal activity, and possession and transportation of forged and counterfeit bank checks. He was sentenced to 46 months imprisonment, three years supervised release, a fine and restitution. He was admitted to bail and given permission to travel to Switzerland (his country of residence at the time) during the pendency of his appeal.
While his appeal in this country was pending, Mr. Bakhtiar was arrested and convicted on unrelated charges in Switzerland. He was detained there until he finished serving his Swiss sentence in July 1995. In the meantime, the United States Court of Appeals for the Second Circuit affirmed his conviction here, United States v. Bakhtiar, 994 F.2d 970 (2d Cir. 1993), and the United States Embassy in Switzerland applied for his extradition under the United States-Swiss Extradition Treaty of May 14, 1900, 31 Stat. 1928 (with amendments, the "Treaty"). The Embassy's request stated
Fraud offenses are covered by article II(6) of the 1900 Treaty, as amended by the Supplementary Treaty of January 10, 1935. Conspiracy ("participation in") to commit an extraditable offense is covered by article III of the 1900 Treaty.
(Letter from U.S. Embassy in Bern, Switzerland to Federal Dep't of Justice and Police of the Swiss Confederation, No. 65, at 3 (Aug. 9, 1993) (Affirm. in Supp. of Def.'s Motion, Ex. G) [hereinafter "extradition request"].)
The Swiss Federal Court's judgment dated September 29, 1994 allowed Mr. Bakhtiar's extradition for the counts other than those for money laundering, monetary transactions and fund transfers (counts 6, 11-13) which the Swiss Court said were "intended to recycle" the funds; it ruled that the United States "should have a new sentence passed by the competent jurisdiction, sanctioning exclusively the [remaining] charges number 1-5 and 7-10."
In July 1995, on completion of his sentence in Switzerland, Mr. Bakhtiar was delivered to authorities in this country. On both sides' understanding of the Swiss Court's judgment, the government and the defense applied and appeared promptly before this court for re-sentencing on the non-money-laundering offenses.
At that point it became clear that this case was different from the vast majority of cases involving extradition under the "doctrine of specialty."
In all but rare cases extradition occurs before trial, and the doctrine of specialty thus controls the charges on which trial will be held.
The treaty involved here is of course the supreme law of the land. But it doesn't contain any procedures, and it does not deal with the internal divisions of governmental power within the contracting state. Its effect is only to require that Mr. Bakhtiar not be punished for the money laundering offenses.
Under our constitution, it is the executive department which prosecutes and which punishes. It is the executive department which agreed with Switzerland on the terms on which the executive department got Mr. Bakhtiar back, and it is the executive department which will imprison him.
The suggestion has been made that, because of that deal between the executive department and the Swiss government, the Court should resentence Mr. Bakhtiar. One of the purposes of this conference is to ask you to consider whether that suggestion raises a question under our constitutional separation of powers.
The sentence passed on Mr. Bakhtiar was the final judgment of the court having jurisdiction. It was affirmed on appeal. There is ...