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ELCOCK v. U.S.
January 26, 2000
ANCEL VINCENT ELCOCK, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Trager, District Judge.
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.
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
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
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
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.
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
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
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
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
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