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IN RE HARRISON

United States District Court, S.D. New York


May 19, 2004.

In the Matter of the Extradition of LAWRENCE HARRISON

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER
I. Introduction

Lawrence Harrison (the "Relator") is currently in custody having been arrested pursuant to an extradition request issued to the United States by Belgium. The extradition request is based on a judgment of conviction entered on June 30, 1999 by the Belgian Court of Appeal in Brussels after Harrison was tried in absentia. Harrison seeks dismissal of the extradition proceedings, arguing that (1) the Belgian prosecution was time barred under United States law and cannot, therefore, serve as a basis for extradition under the applicable terms of the extradition treaty; (2) Belgium has failed to take steps to execute the sentence imposed on Harrison in absentia in a timely manner; (3) Harrison's speedy trial rights were violated; (4) Harrison's Due Process right to a speedy extradition was violated, and (5) Due Process precludes Harrison's extradition because he was convicted in absentia. Harrison also seeks to be released on bail pending the completion of the extradition proceedings.

For the reasons stated below, Harrison's motion is denied in all respects. II. Facts

  Harrison's Belgian conviction arises out of his alleged*fn1 involvement with a company that formerly operated in Belgium known as N.V. Panexport ("Panexport"). According to the Belgian prosecutor, during the period from July 1, 1990 through July 26, 1992, Harrison and others conspired to use Panexport to defraud the Belgian government and to evade tens of millions of euros worth of excise and value-added tax. Specifically, the Belgian Government alleges that Harrison and his conspirators forged documents to misrepresent to the Belgian authorities that vast quantities of petroleum products were being transshipped through Belgium with an ultimate destination of Germany, when, in fact, these products were being sold in Belgium without the payment of applicable taxes. In addition to the tax charge, Belgium also alleges that Harrison defrauded Panexport and its creditors by embezzling its assets. Finally, Belgium alleges (1) that Harrison committed credit card fraud by charging millions of euros worth of travel on a Sabena Airlines credit card and failing to pay for that travel and (2) that Harrison defrauded a leasing company by leasing several automobiles in the name of Panexport and failing to either make the lease payments or return the vehicles (Exhibit B to Harrison's Memorandum of Law in Support of his Motion to dismiss, dated January 27, 2004 ("Harrison's Mem.")).

  Because Harrison's arguments are based on alleged defects that arise out of criminal proceedings conducted against Harrison in the United States, it is necessary to review the sequence of events relating to Harrison's prosecutions in both the United States and Belgium.

  In June 1993, Harrison was arrested in Germany and extradited to Belgium on the basis of the alleged activity in Belgium described above (Harrison's Mem. at 3). In February 1994, Harrison submitted to questioning in Belgium concerning his involvement with Panexport and was released by Belgian authorities in March 1994; Harrison thereafter returned to the United States (Harrison's Mem. at 3-4).

  In December 1994, Harrison was indicted by a federal grand jury sitting in the Northern District of Texas and charged with one count of conspiracy, two counts of wire fraud, five counts of money laundering and one count of attempted tax evasion. These charges also arose out of a scheme to evade the payment of taxes on petroleum products in the United States and were alleged to have been committed between August 11, 1988 and May 18, 1992 (Harrison Mem. at 4 & Ex. A thereto).

  Seven months after his indictment — in June 1995 — Harrison pleaded guilty to the conspiracy and attempted tax evasion counts and agreed to cooperate with the government. On October 11, 1996, Harrison was sentenced to six months' home detention and five years' supervised release (Harrison Mem. at 4 & Ex. E thereto). Throughout the period of his supervised release, Harrison reported to the United States Probation Department (Harrison Mem., Ex. F, ¶¶ 8).

  On May 20, 1997, while Harrison was serving his term of supervised release, the Belgian authorities charged Harrison and others with fraud, forgery and tax charges (Government's Memorandum of Law in Opposition to the Relator's Motion to Dismiss Extradition Request, undated ("Gov't Mem."), at 3). Harrison was subsequently convicted in absentia and sentenced on June 30, 1999 to five years' imprisonment (Harrison's Mem. at 5; Gov't Mem. at 3). A Belgian court issued a warrant for Harrison's arrest in April, 2000 (Harrison's Mem. at 5).

  Harrison was provisionally arrested on or about October 5, 2003. He has been held without bail since that time. III. Analysis

  A. Timeliness of the Belgian Prosecution

  Harrison first argues that the extradition request should be dismissed because the Belgian prosecution was not timely commenced.

  Harrison's argument here is based on Article 2(6) of the Extradition Treaty between the United States of America and the Kingdom of Belgium, S. Treaty Doc. No. 104-7, 1987 WL 350379 (the "Treaty"), which provides:

Extradition shall not be granted if prosecution of the offense or execution of the penalty has been barred by lapse of time under the laws of the Requested State. However, acts constituting an interruption or suspension of the time-bar in the Requesting State shall be taken into consideration insofar as possible.
Harrison argues the Belgian charges arise out of an alleged conspiracy that existed from July 1, 1990 through July 26, 1992. Since he was not sentenced on the Belgian conviction until June 30, 1999, Harrison argues that application of the five-year statute of limitations applicable to most federal felonies, 18 U.S.C. § 3282, establishes that the prosecution of the Belgian criminal case would be time-barred under United States standards and cannot serve as a basis for extradition pursuant to Article 2(6) of the treaty.*fn2 The flaw in Harrison's argument is that Section 3282 establishes a period within which a prosecution must be commenced, not a period within which the prosecution must be concluded. Section 3282(a) provides:
In general — Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any of-fense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.
Pursuant to Section 3282(a), an action is timely so long as the accusatory instrument is filed within five years of the commission of the crime. United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir. 1987) ("For the purpose of tolling the statute of limitations, an indictment is `found' when it is returned by the grand jury and filed."). The date on which the criminal proceeding is concluded is immaterial.

  In this case, the Belgian authorities filed charges against Harrison on May 20, 1997 (Gov't Mem. at 7), approximately two months before the expiration of Section 3282's limitations period. Thus, the Belgian prosection was timely commenced under United States law, and, therefore, Article 2(6) provides no relief to Harrison. B. Delay in Execution of the Belgian Sentence

  Harrison next argues that Belgium's delay in seeking to execute the sentence imposed on Harrison constitutes a defense to extradition under the Due Process Clause of the Fifth Amendment, as incorporated into the Treaty by Article 2(6). Specifically, Harrison relies on the language in Article 2(6) that provides that extradition shall not be granted if "execution of the penalty has been barred by lapse of time under the laws of the Requested State."

  There is no statute of limitations applicable to the execution of a sentence of imprisonment, and the case law concerning the circumstances under which the execution of a sentence is time-barred under United States law is extremely sparse. Harrison's argument is based exclusively on the decision of the Honorable Robert W. Sweet, United States District Judge, in United States v. Mercedes, 90 Crim. 450 (RWS), 1997 WL 458740 (S.D.N.Y. Aug. 12, 1997) which arose out of the federal government's failure to execute promptly a federal sentence of imprisonment after the defendant had been released by state correctional authorities. In Mercedes, the defendant was sentenced in a New York state court in January 1990 to an indeterminate term of imprisonment of 42 months to life. Mercedes was then writted into federal custody in November 1990 to face various federal criminal charges. Mercedes pleaded guilty to four of the federal charges against him in satisfaction of the indictment, was sentenced to a fine and 30 months' imprisonment to run consecutively to the state sentence and was returned to state custody on February 13, 1992.

  On April 13, 1993, Mercedes was paroled by state officials. However, because federal officials apparently failed to lodge a detainer with New York state prison officials, Mercedes was not taken into federal custody to serve his federal sentence. Rather, he was released into the community, where he complied with the conditions of his parole, obtained employment; filed tax returns and lived with and supported his wife and children.

  Approximately three and one-half years after Mercedes' release from state custody, a routine inventory of unpaid fines conducted by the United States Probation Department disclosed that Mercedes had never paid the fine imposed in 1992. A warrant was then issued for Mercedes' arrest. After being arrested, Mercedes was released on bail and moved to vacate his sentence, arguing that the governments delay in seeking execution of the sentence constituted a violation of the Due Process Clause of the Fifth Amendment. Judge Sweet granted the motion.

 

As stated in the March 17 Opinion, a government's delay in executing a sentence may constitute a "waiver" of jurisdiction over an individual under an otherwise valid criminal sentence, such that the "fundamental principles of liberty and justice" secured by the Due Process Clause of the Fifth Amendment would be violated by requiring that individual to serve the sentence. See Shelton v. Ciccone, 578 F.2d 1241, 1244 (8th Cir. 1978); Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973); Shields v. Beto, 370 F.2d 1003, 1005 (5th Cir. 1967); United States v. Merritt, 478 F. Supp. 804, 806-07 (D.D.C. 1979).
This "waiver" theory encourages responsibility and accountability on the part of the government, deters the arbitrary exercise of power, and secures the prompt punishment and rehabilitation of those convicted of crimes. Shelton, 578 F.2d at 1245. The theory is "based on the philosophy that a defendant should be allowed to do his time, live down his past, and reestablish himself." Id. Delayed execution of a sentence interrupts the defendant's reintegration into the community and thus frustrates effective rehabilitation. See id.
In order to establish such a waiver, however, "it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest." Piper, 485 F.2d at 246; see Mercedes, 1997 WL 122785 at *3. Simple negligence in failing to file or improperly filing a detainer with state authorities is not sufficient to deprive the Government of jurisdiction. See Shelton, 518 F.2d at 1244; Mercedes, 1997 WL 122785 at *4.
The Second Circuit has not spoken on the applicability of this due process "waiver" theory in circumstances such as these. "In some areas, such as search and seizure, due process analysis has been reduced to detailed and nearly mechanical rules. In other areas, the precepts are very general, and everything turns upon the circumstances." DeWitt v. Ventetuolo, 6 F.3d 32, 32 (1st Cir. 1993) (habeas petitioner's due process rights violated when, six years after suspending sentence and releasing petitioner, state court reimposed original sentence on ground that earlier relief was erroneous, resulting in petitioner's return to imprisonment), cert. denied, 511 U.S. 1032, 114 S.Ct. 1542, 128 L.Ed.2d 193 (1994). The application of due process analysis to delays in the execution of sentences is of the latter type, requiring an examination of the "totality of the circumstances surrounding the delay." United States v. Martinez, 837 F.2d 861, 864 (9th Cir. 1992) (citing Johnson v. Williford, 682 F.2d 868, 873 (9th Cir. 1982); Merritt, 478 F. Supp. at 807)); DeWitt, 6 F.3d at 35 ("there is no single touchstone . . . nor any multi-part formula" in making judgment that correction of sentencing error violates fundamental notions of fairness embodied in Due Process Clause).
Although the degree of the Government's negligence in the erroneous release of a prisoner is central to the inquiry, other factors are also pertinent to determining whether the delayed execution of a sentence violates due process. Factors to be considered include the length of the government's delay in correcting its error, the reasons for the delay, the petitioner's culpability for or knowledge of the error, the prisoner's reasonable expectations based on the release, and the prejudice to prisoner resulting from delay in correcting the error. See DeWitt, 6 F.3d at 35-36; cf. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (in determining whether delay in appeal violates due process, court considers, inter alia, length of delay, reason for delay, prejudice to defendant's appeal); Mathis v. Hood, 937 F.2d 790, 794 (2d Cir. 1991) (six-year delay in appeal violated petitioner's due process rights, but absent prejudice to appeal, delay does not warrant habeas release); Muwwakkil v. Hoke, 968 F.2d 284, 285-86 (2d Cir. 1992) (thirteen-year delay in appeal violated due process; court declined to reduce sentence pending state government's attempt to improve system of monitoring appeals process, but reserved possibility of imposition of unconditional release if state court appellate delays continued), cert. denied, 506 U.S. 1024, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992).
1997 WL 458740 at *2. My research has disclosed no case decided after Mercedes involving similar facts.

  The government attempts to distinguish Mercedes on the ground that it did not involve an extradition request from a foreign country (Gov't Mem. at 8). This argument is unconvincing. Article 2(6) of the Treaty expressly refers to the internal law of the requested state, and establishes that the timeliness of the requesting state's execution of sentence is to be judged by the standard's applicable within the requested state. Given the Treaty's express reference to and incorporation of the requested state's internal law to determine whether a delay in the execution of sentence operates to bar extradition, the fact that Mercedes did not involve an extradition request is immaterial.

  The government goes on to argue that the authorities cited by Harrison are inapplicable because they "involve issues of federal-state relationships that simply cannot be analogized to situations involving co-equal sovereign states whose freedom of action is severely limited by the terms of the extradition treaties and the realities of geographic constraints" (Gov't Mem. at 8). This argument is equally feeble. There is nothing in the Treaty that required or contributed to Belgium's delay in seeking Harrison's extradition. There is nothing in the Treaty that "severely limit[s]" the "freedom of action" of either the United States or Belgium. To the extent that the government relies on "the realities of geographic constraints," thanks to the telephone, communications satellites, facsimile machines, e-mail and commercial overnight courier services, it is as easy for an individual in this District to communicate with Brussels as it is with Brooklyn.*fn3

  Nevertheless, I conclude that Belgium's delay in executing the sentence here does not constitute a violation of the Due Process Clause. Although the delay here between Harrison's conviction in Belgium and Belgium's request for provisional arrest is slightly more than four years (June 1999 until October 2003), the delay here never created the risk of episodic incarceration central to the decision in Mercedes.

  In Mercedes, the Court observed that, after his release from state prison, the defendant had made a "fresh start," was leading a law-abiding life and that reincarceration would reverse the steps the defendant had taken towards rehabilitation. In his initial decision in Mercedes, Judge Sweet noted:

Moreover, Mercedes appears to have made significant progress toward rehabilitation which would be undermined by execution of the remainder of his federal term of incarceration. Mercedes has reported regularly to his state parole officer, complied with all terms of his parole, been employed for virtually all of the three and one-half years since his release, and has been supporting his family. The Government's prolonged inaction arguably created a reasonable expectation of continued freedom on Mercedes ` part. He and his family appear to have made substantial investments of time, money, effort and emotional resources in reliance on the presumption of continued freedom. Executing Mercedes' sentence at this juncture would disrupt his reintegration into the community and undermine his progress toward rehabilitation, one of the primary objectives of the criminal law. See [United States v. Merritt, 478 F. Supp. 804, 808 (D.D.C. 1979)].
United States v. Mercedes, 90 Crim. 450 (RWS), 1997 WL 122785 at *6 (S.D.N.Y. Mar. 17, 1997). See also White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930) ("A sentence of five years means a continuous sentence, . . . and [the prisoner] cannot be required to serve it in installments.")

  Here, the delayed execution of the Belgian sentence will not require Harrison to make a second "fresh start." Harrison was convicted in the Northern District of Texas in October, 1996, and was sentenced to six-months' home detention and five years' supervised release. He was never incarcerated in the traditional sense, never removed from the community, and, thus, Belgium's delay in seeking extradition did not result in any "interrupt[ion of Harrison's] reintegration into the community and thus [did not] frustrate[] effective rehabilitation." United States v. Mercedes, supra, 1997 WL 459740 at *2.

  Moreover, even if Harrison's period of home incarceration is deemed to be equivalent to incarceration in a penal institution, the delay in the execution of Harrison's Belgian sentence still did not have the effect of creating disconnected periods of incarceration. Harrison's six-month period of home incarceration was imposed in October 1996 and would have ended in April 1997 — more than two years before he was sentenced by the Belgian courts. Thus, even if Belgium had sought extradition immediately upon sentencing, there would have been an interval of more than two years between the completion of the period of home detention resulting from the Texas conviction and Harrison's incarceration resulting from the Belgian conviction. Although the prospect of incarceration is always undesirable, it is difficult to understand how the prospect of incarceration in Belgium was any more onerous for Harrison in 2003 that it would have been in 1999.

  In addition, the predicate for the holding in Mercedes — action by the government that is "`affirmatively wrong'" or inaction that is "`grossly negligent,'" United States v. Mercedes, supra, 1997 WL 122785 at *3, quoting Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) — is missing here. Delay alone will not support a finding of gross negligence. United States v. Mercedes, supra, 1997 WL 122785 at *5 ("[T]he length of delay alone is not sufficient to create an inference of gross negligence. . . ."). Thus, Belgium's delay of more than four years in seeking execution of the sentence, without more, does not establish gross negligence.

  In Mercedes, Judge Sweet found gross negligence on the basis of the length of the delay and the fact that Mercedes was under the supervision of state parole authorities during the period of inaction by the federal government. Judge Sweet noted that "it is reasonable to expect some coordination and communication between federal and state officials regarding the status of a state prisoner who is ultimately to serve a federal sentence." United States v. Mercedes, supra, 1997 WL 122785 at *5. Judge Sweet's conclusion is all the more compelling because the facts in Mercedes establish that the state had actual knowledge of the federal government's interest in Mercedes and vice versa; Mercedes had been writted out of state custody for his federal prosecution. In this case, on the other hand, two different countries are involved, and nothing has been offered to show that either the Belgian authorities knew Harrison was being prosecuted in the United States or that United States officials knew about the criminal prosecution in Belgium. Although it was, no doubt, reasonable for Judge Sweet to conclude that there should have been communication and coordinated efforts between state and federal officials, that conclusion is not at all apparent where the two prosecuting authorities are sovereign nations. To hold that two sovereign countries must or should communicate and coordinate their actions with respect to the release of their own prisoners would create a standard of international relations that is far outside the scope of the judiciary's function.

  Thus, I conclude that Belgium's delay in seeking extradition does not violate the Due Process Clause of the Fifth Amendment, and does not, therefore, violate Article 2(6) of the Treaty. C. Alleged Violations of Harrison's Speedy Trial and Speedy Extradition Rights

  Harrison next argues that Belgium's delay in commencing a criminal prosecution against him and in seeking extradition violate some right independent of the text of the Treaty and preclude extradition.*fn4 Both arguments can be quickly dispatched.

  A fundamental limitation on the judicial function in extradition proceedings is the "rule of non-inquiry." Simply stated, "the `rule of non-inquiry' . . . prohibits the court determining extraditability from examining the requesting country's criminal justice system or taking into account the possibility that the extraditee will be mistreated if returned." In re Extradition of Sandhu, 886 F. Supp. 318, 321 (S.D.N.Y. 1993), collateral attack denied sub nom., Gill v. Imundi, 93 Civ. 4362 (KTD), 1994 WL 273375 (S.D.N.Y. June 16, 1994). See also Ahmad v. Wigen, 910 F.2d 1063, 1066-67 (2d Cir. 1990); Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir. 1976). By virtue of the rule of non-inquiry, any alleged speedy trial violation by the requesting state is not a defense to extradition. In re Extradition of Ernst, supra, 1998 WL 395267 at *14; In re Extradition of Cheung, 968 F. Supp. 791, 798 (D. Conn. 1997); United States v. Galanis, 429 F. Supp. 1215, 1224-25 (D. Conn. 1977). In addition, it is well established in this Circuit that there is no right to speedy extradition. "While delay in seeking extradition may be relevant to the Secretary of State's final determination as to whether a fugitive should be extradited, . . . `delay may not . . . serve as a defense to judicial extradition proceedings.'" Murphy v. United States, 199 F.3d 599, 602 (2d Cir. 1999), citing Kamrin v. United States, 725 F.2d 1225, 1227 (9th Cir. 1984). "[N]othing in the Constitution or in the applicable federal statute indicates that a fugitive " has a right to a `speedy extradition' or that there exists a statute of limitations for extradition." Strachan v. Colon, 941 F.2d 128, 132 (2d Cir. 1991), accord In re Extradition of Ribaudo, No. 00 Crim. Misc. 1 Pg. (KNF), 2004 WL 213021 at *10 (S.D.N.Y. Feb. 3, 2004).

  D. Harrison's Conviction In Absentia

  Harrison's final argument in support of his motion to dismiss is that his the Due Process Clause bars his extradition because he was convicted in absentia. Although the fact that an extraditee was not present for his trial and sentencing is a factor properly considered by the Secretary of State in deciding whether to grant extradition, it is not a defense to a request for extradition nor is it a basis for dismissing an extradition request. Gallina v. Fraser, supra, 278 F.2d at 78-79; In re Extradition of Yarden, No. 98-1250-M, 1989 WL 56119 at *6-*7 (E.D.N.Y. May 24, 1989) (granting extradition to Belgium where extraditee convicted in absentia).*fn5

  E. Bail

  Finally, Harrison seeks to be released on bail pending the conclusion of the extradition proceedings.

  In the absence of special circumstances, bail is not available in extradition cases.

 

In extradition proceedings, there is a. presumption against bail, and only if "special circumstances" exist will bail be granted. Wright v. Henkel, 190 U.S. 40 (1903); United States v. Leitner, 784 F.2d 159, 160 (2d Cir. 1986) (per curiam). Special circumstances are found "`only in the most pressing circumstances and when the requirements of justice are absolutely peremptory.'" Id., quoting In re Mitchell, 171 F.2d 289, 289 (S.D.N.Y. 1909).
United States v. Spatola, No. 89-643-M (JLC), 1989 WL 62993 at *3 (E.D.N.Y. June 9, 1989). See also Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir. 1981); In re Extradition of Hamilton-Byrne, 831 F. Supp. 287, 290 (S.D.N.Y. 1993); Spatola v. United States, 741 F. Supp. 362, 366 (E.D.N.Y. 1990); United States v. Tang Yee-Chun, 657 F. Supp. 1270, 1271-72 (S.D.N.Y. 1987); United States v. Messina, 566 F. Supp. 740, 742-43 (E.D.N.Y. 1983). The rationale underlying the presumption against bail in extradition cases is that the non-appearance of a bailed extraditee would prevent the United States from complying with its treaty obligations. As stated more than a century ago in Wright v. Henkel, 190 U.S. 40, 62 (1903):
The demanding government, when it has done all that the treaty and law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which it might be impossible to fulfil if release on bail were permitted. The enforcement of the bond, if forfeited, would hardly meet the international demand; and the regaining of custody of the accused obviously would be surrounded with serious embarrassment.
  In this case, there are no special circumstances at this time that justify Harrison's release on bail. Although Harrison has substantial ties to the community, no apparent ties overseas and has previously been compliant with the terms of his supervised release, Harrison's low risk of flight is not a special circumstance. United States v. Leitner, 784 F.2d at 159, 161 (2d Cir. 1986).

  Harrison also cites Belgium's delay as a special circumstance justifying bail. Although a requesting country's unjustified delay in complying with the requirements of an extradition treaty may constitute a special circumstance where the delay results in a prolonged period of incarceration, that circumstance is not present here. Belgium's pre-arrest delay has not prolonged Harrison's incarceration, and there is no claim that Belgium has failed to timely provide the documents required by the Treaty.

  Since Harrison has failed to demonstrate the presence of special circumstances, his application for bail is denied.

 IV. Conclusion

  Accordingly, for all the foregoing reasons, Harrison's motion to dismiss the extradition proceedings is denied in all respects and his application for bail is denied in all respects:

  Counsel are directed to appear in Courtroom 6A, United States Courthouse, 500 Pearl Street, New York, New York 10007 at 12:30 p.m. on May 27, 2004 to set a date for the extradition hearing.

  SO ORDERED.


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