The opinion of the court was delivered by: Michael B. Mukasey, U.S.D.J.
The government argues both that (i) Martonak lacks standing to raise
this issue, because the rule of specialty protects the interest of the
asylum state — the United Kingdom — and not the interest of
the defendant, and (ii) Martonak is wrong on the merits because under the
terms of the relevant treaty, the crimes for which he was extradited and
for which he is to be sentenced are the same, and thus there is no
violation of the rule of specialty.
For the reasons set forth below, it appears that Martonak does have
standing to argue the rule of specialty, but that the rule would not be
offended if Martonak were sentenced for the crime to which he pleaded
guilty. Therefore, Martonak's motion is denied.
As noted, Martonak pleaded guilty before me in this case in October
1999. The allocution included the following colloquy among the Court, the
prosecutor (Nelson Boxer), the defendant, and defense counsel (Ian
THE DEFENDANT: Yes, sir.
THE COURT: Is that correct, Mr. Martonak?
THE DEFENDANT: Yes, sir.
THE DEFENDANT: Yes, I did.
THE DEFENDANT: Yes, sir.
THE DEFENDANT: Yes, your Honor.
(10/9/91 Tr. at 10-12; 10/10/01 Letter of Katherine Polk Failla to the
Court ("Failla Ltr."), Ex. A at 55-57)
Martonak's plea before me in 1991 was then the last of a series of
three charging instruments to which Martonak had pleaded guilty in this
Court. The first two charged him with mail fraud, under docket numbers 88
Cr. 898 (MBM) and 90 Cr. 270 (DNE). As the initials in the docket numbers
suggest, the first of those cases was assigned to me, the second to the
late Judge David N. Edelstein. The criminal conduct underlying Martonak's
guilty pleas in the 1990 case and the instant case also constituted
violations of the terms of his supervised release in the 1988 case before
me, and Martonak pleaded guilty as well before me in October 1991 to the
supervised release violations in the two earlier cases. (10/9/91 Tr. at
Initially on March 6, 1992, and again on March 11, Martonak failed to
appear for sentencing, and a bench warrant was issued.
In April and July 1999, Martonak was arrested in London, and when his
whereabouts were made known to the United States Attorney's Office in
this District, extradition proceedings were initiated under the
extradition treaty between the United States and the United Kingdom.
Article XII of that treaty provides in relevant part as follows:
Extradition Treaty, June 8, 1972, U.S-U.K., art. XII(1), 28 U.S.T. 227,
233. Those proceedings began in September 1999 with a formal diplomatic
note from the American Ambassador to the Secretary of State for Foreign
and Commonwealth Affairs, requesting Martonak's provisional arrest.
(Failla Ltr. at 4-5) Following intermediate steps not here relevant,
Martonak's extradition case was heard before Magistrate Geoffrey Breen in
Bow Street Magistrates' Court, London. The prosecution's case consisted
of a packet of papers submitted to the Magistrate, and included a list
styled "Committal Charges" which purported to describe the charges on
which Martonak's extradition was sought, an order establishing the
Magistrate's authority to proceed, and a separate group of documents
received from the United States — tied together with a ribbon and
under seal of the Department of State — consisting in part of
certified copies of various documents from this Court and including the
information in this case and the transcript
of Martonak's plea
allocution. (Failla Ltr. Ex. A, at 43, 45-63)
The first document in the packet submitted to the Magistrate —
the list of "Committal Charges" — describes Martonak's convictions
in the 1988 and 1990 cases, and the supervised release violations
relating to them, and describes his conviction in the instant case as
John Martonak (aka John Weston) in or about June 1990
dishonestly attempted to obtain from Spink and Son
Auction House coins, with intention of permanently
depriving the said Spink and Son Auction House thereof
by deception namely by falsely representing that a
cheque for $35,100 drawn on the account of Dreyfus
Liquid Assets was a good and valid order for payment
and that the cheque certification was genuine.
Sentence in respect of the above conviction is
(Failla Ltr. Ex. A, at 1A) The extradition proceedings ended with a
decision adverse to Martonak in the House of Lords in May 2001, and he
was returned to this District in July.
Martonak's specialty rule claim is based on the above quoted portion of
the "Committal Charges," which appears to describe his crime as an
attempt to defraud the auction house to which the worthless check was
sent, rather than an attempt to defraud the bank on which that check was
drawn. Because Martonak pleaded guilty to bank fraud — directed
perforce at the bank — rather than mail fraud — directed at
the auction house — he argues that if he is sentenced it would be
for a crime different from the one for which he was extradited, and the
rule of specialty would be violated.
Before Martonak's claim can be addressed, the court must first address
the question of whether Martonak has standing to raise it. There appears
to be divided authority on that point, see United States v. Nosov,
153 F. Supp.2d 477, 480 (S.D.N.Y. 2001) (collecting cases), with some
courts holding that only the asylum state may raise issues of specialty,
inasmuch as the rationale for the rule of specialty rests on protecting
the interest of that state in preserving the limits of its agreement to
extradite a particular defendant, and others holding that the extradited
defendant may raise whatever objections the asylum state might have had.
Although the Nosov court did not appear to rule explictly on the issue
of standing, noting instead that "even if Nosov had standing, his
argument would fail," id., I do not believe I am free so to avoid the
standing issue. In Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (1998), the Supreme Court held that federal courts are not
free to assume subject matter jurisdiction and decide the merits —
exercising "hypothetical jurisdiction" — even if the jurisdictional
issue is far more nettlesome than the merits and even if the prevailing
party on the merits would be the same as the prevailing party were
jurisdiction denied. Id. at 94. Rather, the issue of subject matter
jurisdiction must be addressed, and, as noted in Steel Co., "[s]tanding
to sue is part of the common understanding of what it takes to make a
justiciable case." Id. at 102 (citation omitted).
The Court listed three requirements that make up the "irreducible
constitutional minimum of standing." Id. at 102 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal quotation
marks omitted). "First and foremost" among them is "an `injury in
— a harm suffered by the plaintiff that is `concrete' and `actual
or imminent, not "conjectural" or "hypothetical."'" Id. at 103 (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The other two are
causation and redressability, id. at 103, which are not at issue here.
What is at issue is whether Martonak can claim that he would suffer an
injury in fact from a prosecution that exceeded, or at least differed
from, what the United Kingdom had agreed to extradite him for.
The government cites Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir.
1973), for the proposition that Martonak lacks standing, and the opinion
in that case, by Chief Judge Friendly, does in fact say that "[a]s a
matter of international law, the principle of specialty has been viewed
as a privilege of the asylum state, designed to protect its dignity and
interests, rather than a right accruing to the accused." Id. at 906
(citations omitted). However, although the opinion says that, the Court
in Shapiro did consider the specialty arguments the petitioner raised,
even though the United States was the asylum state in that case and urged
the Court not to consider those arguments, and even though, as Judge
Friendly recognized, any ruling in such a case "can only be advisory in
character, and in certain circumstances might cause embarrassments to the
executive branch in the conduct of foreign affairs." Id.
The government also cites United States v. Reed, 639 F.2d 896 (2d Cir.
1981), for the proposition that "absent protest or objection by the
offended sovereign, [the defendant] has no standing to raise violation of
international law as an issue." Id. at 902. Reed, however, involved a
claim by a defendant that he had been abducted from a foreign country
that had an extradition treaty with the United States, and did not
involve any principle of specialty. It had long been the law that how a
defendant came into the control of the sovereign was irrelevant to
whether he could be tried see Frisbie v. Collins, 342 U.S. 519 (1952)
(applying Ker v. Illinois, 119 U.S. 436 (1889)), absent blatantly lawless
and overreaching conduct by the government, see United States v.
Toscanino, 500 F.2d 267 (2d Cir. 1974). Reed simply applied that
In United States v. Jurado-Rodriguez, 907 F. Supp. 568 (E.D.N Y
1995), Judge Weinstein permitted an extradited defendant to invoke the
rule of specialty, "but only to the extent of the surrendering country's
wishes." Id. at 576. That appears to be a reasonable rule of standing
that has the virtue of following the standing rules of Steel Co. while at
the same time assuring that the wishes of the asylum state will govern.
Here, Martonak indisputably would suffer an injury of the most direct
sort if he were to be sentenced to jail for a crime that the United
Kingdom did not agree he should face upon extradition. Of course,
whatever Martonak's argument, the position of the United Kingdom on the
limits of its extradition order could always be presented to the Court
through an appropriate representative, and would govern. On this basis,
and absent any authoritative declaration from the United Kingdom that no
rule of specialty issue exists, Martonak has standing to argue the issue
Although Martonak has been allowed to raise the issue of specialty, he
is wrong on the merits. For the reasons set forth below, sentencing him
on the bank fraud charge to which he pleaded guilty is within the limits
set by the asylum state, the United Kingdom.
As noted above, Article XII of the governing treaty between the United
States and the United Kingdom, as applied here, bars the United States
from punishing Martonak "for any offense other than an extraditable
offense established by the facts in respect of which his extradition has
been granted . . . ." Extradition Treaty, supra, 28 U.S.T. at 233
(emphasis added). As the highlighted language says, what governs is what
has been "established by the facts in respect of which his extradition
has been granted." Id. The "facts," insofar as they relate to the bank
fraud charge in dispute, are contained in Martonak's guilty plea
allocution, part of which is quoted at pages 2-3 above, and which was
presented to Magistrate Breen in Bow Street Magistrates' Court. Those were
the "facts in respect of which" Martonak's extradition was granted, and
they establish bank fraud under the laws of the United States.
That the list of charges presented to the Magistrate, including the
supervised release violations and the bank fraud charge, might have
misdescribed the bank fraud charge so as to make it look like mail
fraud, is irrelevant. That much is plain from the language of the
treaty, which makes the extradition determination turn on the facts
presented to the tribunal determining the issue, not on the nature of the
offense for which extradition is sought.
The same argument Martonak relies on here was raised by the defendant
in United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989), and rejected.
There, Sensi, a defendant extradited from the United Kingdom, argued,
among other things, that "the British magistrate who extradited him set
out 18 counts of theft." Id. at 895. Sensi contended that "the United
States could not charge him with the various offenses contained in the
indictment, because those offenses were not `listed before the
magistrate.'" Id. (quoting the defendant's appellate brief). The Court
rejected that claim, and held that all that is required under the
doctrine of specialty, as applied to the same treaty at issue in this
case, "is that the prosecution be `based on the same facts as those set
forth in the request for extradition.'" Id. at 895-96 (quoting
Restatement (Third) of Foreign Relations Law of the United States §
477, cmt. a (1987)). "Thus, the test focuses on the evidentiary material
that was submitted to the magistrate." Id. at 896.
The list of charges that appears on a page preceding the certified
copies of documents received from the United States is not "evidentiary
material that was submitted to the magistrate."
For the above reasons, Martonak's request to bar further proceedings in
this case is denied, and the Court will proceed to sentence him at a date
and time to be determined after consultation with counsel.
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