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IN RE HARRISON

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) ...


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