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ELCOCK v. U.S.

January 26, 2000

ANCEL VINCENT ELCOCK, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Trager, District Judge.

    MEMORANDUM AND ORDER

Ancel Vincent Elcock ("Elcock") petitions this court for a writ of habeas corpus barring his extradition to the Federal Republic of Germany ("Germany") to face bank robbery charges. Elcock, who has previously been convicted of related charges in the Eastern District of New York, argues that this extradition would violate the prior jeopardy provision of the extradition treaty between the United States and Germany.

Background

(1)

The background facts of this case appear to be as follows:*fn1 on Friday, August 29, 1997, Elcock, together with a German accomplice, Claudia Conradus ("Conradus"), stole $419,720 in various national currencies from a bank in Berlin, Germany. Conradus, who was Elcock's girlfriend and an employee of the bank, assisted Elcock by obtaining the combination to the bank's safe, as well as a set of keys necessary to access the vault. Conradus then went to the bank with Elcock, and together they stole the currency.

After committing the theft, Elcock and Conradus returned to Conradus' apartment, where they concealed the money in a hollowed-out teddy bear and three empty puzzle boxes. The couple then bundled the teddy bear and three boxes in a single package and addressed the package to Elcock's sister in the United States. The package was labeled with a fictitious return address and the phrase "Happy Birthday."

Elcock mailed the package containing the stolen money to his sister in the United States the next day, a Saturday. On Sunday, Elcock flew back to the United States and moved in with his sister in order to intercept the package. When the bank reopened on Monday, bank officials discovered the theft, and later that day, Conradus was arrested for her role in the theft.*fn2

One week later, on September 8, 1997, the package arrived at the mail facility at John F. Kennedy International Airport. During a routine X-ray of the package, agents of the United States Customs Service detected the stolen currency. On September 22, 1997, Customs agents made a controlled delivery of the package to Elcock's sister's address. Elcock accepted delivery of the package, tore open the teddy bear, and was arrested immediately thereafter.

(2)

Following his arrest, Elcock was indicted and tried before this court on charges of transporting stolen currency in foreign commerce, 18 U.S.C. § 2314 (Supp. 1999) (Count One),*fn3 receipt and possession of stolen currency, 18 U.S.C. § 2315 (Supp. 1999) (Count Two),*fn4 and smuggling stolen currency into the United States, 18 U.S.C. § 545 (Supp. 1999) (Count Three).*fn5 See United States v. Elcock, No. 97-CR-992 (DGT) (E.D.N.Y.) (superceding indictment). At the close of trial on April 3, 1998, a jury found Elcock guilty of Counts One and Three — transporting stolen currency in foreign commerce and smuggling the currency into the United States, but did not return a verdict on Count Two receiving and possessing stolen currency.*fn6

On July 2, 1998, Elcock was sentenced by this court. Elcock objected to portions of the presentence investigative report which outlined Elcock's role in the theft of funds from the bank in Germany. Elcock's objections were rejected on the ground that there was sufficient evidence to conclude that Elcock had taken part in the theft. Moreover, because Elcock had engaged in a "very clever scheme' United States v. Elcock. No. 97-CR-992 (E.D.N.Y. July 2, 1998) (transcript of sentencing at 6), Elcock's sentence was enhanced by two levels for more than minimal planning. Ultimately, Elcock received a sentence of thirty months in prison.

On July 7, 1998, Elcock filed a notice of appeal in the Second Circuit challenging the propriety of the upward departure for more than minimal planning. The Second Circuit rejected Elcock's appeal on March 15, 1999. See United States v. Elcock, No. 98-1478, 1999 WL 147035 (2d Cir. Mar. 15, 1999) (summary order affirming sentence).

Elcock is currently serving the final week of his sentence and is due to be released on January 29, 2000.

(3)

While Elcock was being prosecuted in the United States, extradition proceedings were commenced in this court. On September 17, 1997. a German district court in Berlin-Tiergarten issued an arrest warrant for Elcock charging him with grand larceny and conspiracy to commit grand larceny in violation of German Crim.Code §§ 25(2), 242(1), 243(1)(2).*fn7 At Germany's request, the United States filed an extradition complaint against Elcock on November 25, 1997. On February 2, 1998, documents prepared by the Federal Republic of Germany in support of the extradition were certified by an official at the United States Embassy in Germany. An extradition hearing was held, and on February 10, 1998, Magistrate Judge Robert M. Levy issued a Certification and Order certifying the matter to the Secretary of State.

On March 29, 1999, Elcock filed this petition for a writ of habeas corpus blocking his extradition. Elcock argues that because of his American prosecution, his extradition is barred by the prior jeopardy provision of the extradition treaty between the United States and Germany.

Discussion

(1)

Elcock's American Prosecution does not Bar his Extradition.

The Fifth Amendment's protection against double jeopardy extends only to successive prosecutions brought by the same sovereign. See Abbate v. United States, 359 U.S. 187, 193-195, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959) (enunciating separate sovereign theory of double jeopardy); United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922) (same); Moore v. Wino is, 55 U.S. (14 How.) 13, 19-20, 14 L.Ed. 306 (1852) (same). As a result, the Double Jeopardy Clause of the Constitution does not prevent extradition from the United States for the purpose of a foreign prosecution following prosecution in the United States for the same offense. See In re Ryan, 360 F. Supp. 270, 274 (E.D.N.Y.), aff'd, 478 F.2d 1397 (2d Cir. 1973) (Table). The principle of double jeopardy, or non bis in dem*fn8 as the concept is more commonly known in civil law, is, however, an internationally recognized principle of criminal justice. See Sindona v. Grant, 619 F.2d 167, 177 (2d Cir. 1980) (Friendly, J.); M. Cherif Bassiouni, International Extradition: United States Law and Practice 598 (3d rev. ed. 1996) [hereinafter Bassiouni, International Extradition]. As such, many extradition treaties — including virtually all of the United States' extradition treaties negotiated since World War II — contain provisions on double jeopardy. See Sindona, 619 F.2d at 177 (citing numerous examples); 4 Michael Abbell & Bruno A. Ristau, International Judicial Assistance 109 (1990 & Supp. 1997).

At issue here is the interpretation of Article 8 ("Prior Jeopardy for the Same Offense") of the Treaty Between the United States of America and the Federal Republic of Germany Concerning Extradition, June 20, 1978, U.S.-F.R.G., 32 U.S.T. 1485 [hereinafter Treaty or Article 8], which provides:

Extradition shall not be granted when the person whose extradition is requested has been tried and discharged or punished with final and binding effect by the comlpetent authorities of the Requested State for the offense for which his extradition is requested.

The principal question on this petition is whether the American prosecution for transporting, smuggling, and receiving stolen currency and the German charges on the underlying bank robbery constitute sequential prosecutions ...


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