New Jersey Appellate Division Reverses Conviction for Attempted First Degree Murder, Remands for a New Trial.

Defendant lived with his girlfriend, her mother, her son, and her minor daughter. The girlfriend’s ex-husband and father of the minor daughter threatened to kill Defendant over the phone prior to the incident. On the day of the incident, the ex-husband dropped off the minor daughter and the girlfriend’s mother at the family home and parked his car in front of the driveway, blocking it. Defendant got in his car to go to work, and honked the horn to get the ex-husband to move his car. The ex-husband moved the car, but exited and walked over to the Defendant’s car with something in his hand, which later turned out to be food. Defendant believed the ex-husband had a weapon and ducked down under the seat as he was backing out of the driveway, and the car struck the complainant, causing him various injuries. Defendant got out of his car and waited until police arrived.

At trial, over objection, the State asked a police officer to give an opinion as to how the accident had occurred in order to establish that it was not an accident. Defendant objected on the ground that the witness was not qualified as an expert and had not prepared an expert witness report, but the court permitted the testimony and Defendant was convicted of Attempted First Degree Murder, Second Degree Aggravated Assault, Third Degree Aggravated Assault with a Deadly Weapon, Fourth Degree Aggravated Assault with a Deadly Weapon, and Fourth Degree Assault by Motor Vehicle.

The Appellate Division reversed, finding that the police officer’s detailed testimony and use of a diagram detailing his beliefs as to the manner in which the incident occurred constituted putative expert, and not lay, opinion testimony. His opinions were not based on his perceptions of defendant’s and Martinez’s actions because he was not present when the incident occurred. Indeed, his opinion was based on inadmissible hearsay information clearly obtained from others. Further, the Appellate Division held that the admission of this impermissible expert testimony was not harmless error, especially where the police officer’s testimony was “cloaked in his extensive
experience and training” and the prosecutor relied on the officer’s testimony and his diagram of the incident to support the State’s claim defendant intended to kill the complainant.

A new trial was ordered.



Muhamed Sacirbey (a.k.a. Muhamed Sacirbegovic) (Applicant) was born in Sarajevo, Yugoslavia when it was under the dictatorship of Josip Broz (Tito). His family fled Yugoslavia and eventually settled in the U.S. Applicant became a naturalized U.S. citizen, qualified as a lawyer, and later worked in the financial industry. In 1992, the Republic of Bosnia and Herzegovina (Bosnia) declared its independence from Yugoslavia. The Bosnian President appointed Applicant as Bosnia’s first ambassador to the United Nations.

Meanwhile, a bitter conflict had broken out in Bosnia in 1995. The government designated Applicant as the Bosnian Foreign Minister; he represented Bosnia at negotiations leading to the Dayton Peace Accords that ended the conflict. In 2000, Applicant resigned from his ambassadorial position.

An investigation of Applicant’s activities during his ambassadorship allegedly revealed that he had embezzled more than $600,000, and that $1.8 million had disappeared from an account over which Applicant had signature authority. Applicant claims that this is nothing more than a political vendetta.

Nevertheless, the Cantonal Court in Sarajevo issued a Decision for Detention and an International Arrest Warrant for Applicant. In 2002, Bosnia formally requested his extradition from the U.S., pursuant to an extradition treaty between the U.S. and Serbia dating back to 1902. See Treaty for Mutual Extradition of Fugitives from Justice, U.S. ‑ Serbia, art. 1, March 7, 1902 [32 Stat. 1890; T.S. 406; 12 Bevans 1238.] Bosnia is allegedly the successor state to the Kingdom of Serbia. “Embezzlement by public officers” is one of its extraditable offenses (Article II). The Treaty, however, does not require the parties to extradite their respective citizens (Article V).

The U.S. Department of State may permit international extradition of U.S. citizens who otherwise are within the scope of the relevant extradition treaty. See 18 U.S.C. § 3196. Here, the U.S. Department of State apparently used this discretion to authorize Applicant’s rendition.

In 2003, the U.S. Department of Justice filed a ‘Complaint for Arrest with a View Towards Extradition’ of Applicant in a New York federal court. The authorities arrested Applicant and detained him for more than a year.

A Magistrate Judge granted the extradition request in 2005. The District Court denied Applicant’s later petition for a writ of habeas corpus. This appeal ensued. Over a dissent, a panel of the U.S. Court of Appeals for the Second Circuit reverses because the Bosnian court that issued the arrest warrant no longer has either jurisdiction or authority to enforce it domestically.

When reviewing the denial of a habeas petition, the court can consider only “(1) whether the judge below had jurisdiction; (2) whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence presented by the Government established probable cause to extradite.” Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000). Here, the Court focuses on whether the offense is extraditable under the applicable Treaty.

“Article I of the Treaty sets forth a foundational principle that the states parties ‘mutually agree to deliver up persons who[] hav[e] been charged with or convicted of any of the crimes and offenses’ …, which are supplied in Article II. … Most important to the instant case, Article III of the Treaty imposes a requirement that when ‘[a] fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued, shall be produced.’ 17 Treaty art. III …”

“In other words, the ‘warrant of arrest’ is a formal legal instrument that is required by the Treaty to show that a person has been charged with an extraditable crime. … Accordingly, we interpret these provisions to mean that the proof required under the Treaty to establish that an individual has been ‘charged’ with a crime is a valid arrest warrant and the evidence submitted in order to obtain that warrant. Any other reading would ignore the express terms of Article III. …”

“Under this construction of the Treaty, Bosnia can satisfy the requirement that Applicant be ‘charged’ with a crime only if it can provide, inter alia, a valid warrant for his arrest. Bosnia seeks the extradition of Applicant pursuant to an ‘international arrest warrant’ issued by the Cantonal Court in Sarajevo.”

“However, as the District Court found, the Cantonal Court currently lacks jurisdiction over the investigation of Applicant’s alleged crimes and ‘no longer ha[s] any power to enforce’ the arrest warrant. … Such a warrant—one issued by a court lacking jurisdiction to enforce it—has been described in another context by the Supreme Court as a ‘dead letter.’ United States v. Verdugo‑Urquidez, 494 U.S. 259, 274 … (1990) (rejecting an argument that a warrant issued by a magistrate in the United States would have force in Mexico) …”

“The arrest warrant for Applicant was never re‑issued—or otherwise ratified—by a Bosnian court with jurisdiction over this case. … Accordingly, the existence of this arrest warrant—issued by a court ousted of jurisdiction and no longer able to enforce it—cannot satisfy the Treaty’s requirement that Bosnia demonstrate [that there was] a ‘charge’ by producing a valid arrest warrant.” [66‑7]

The Second Circuit finds that there is only a criminal investigation ongoing in Bosnia, while the Treaty requires a valid arrest warrant. In the absence of a valid warrant, Bosnia has not charged Applicant with an extraditable offense according to the Treaty. The Court therefore grants his habeas petition.

Citation: Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009).

In 2001, the U.S. Army contracted with Kellogg Brown & Root (KBR), a U.S. company, to provide, inter alia, fuel tankers and related services at the Kuwait airport. Jeff Alex Mazon, KBR’s procurement manager, apparently struck a special deal with one Ali Hijazi (Petitioner) to provide those services at an inflated price. Petitioner allegedly paid Mazon $1 million in return.

Five years later, a federal grand jury indicted Petitioner and Mazon in Illinois. Mazon eventually pled guilty. Petitioner did not appear, but his counsel filed two motion to dismiss which the district court held in abeyance until the court could arraign Petitioner. Apart from an unrelated trip in 1993, Petitioner has not traveled to the U.S. or had any other meaningful contacts with the U.S. In fact, it is possible that he did not even know that the funds at issue were U.S. government funds.

But Petitioner failed to show up for his arraignment. The U.S. does not have an extradition treaty with Kuwait. Petitioner is a Lebanese citizen who lives in Kuwait. The Kuwaiti government has declined to surrender him.

In 2008, Petitioner filed this petition for a writ of mandamus in the U.S. Court of Appeals for the Seventh Circuit. The Court grants Petitioner’s petition. It then explains its reasoning.

“Despite the breadth and importance of the issues implicated by Petitioner’s motions to dismiss the indictment, the question before us is a narrow one: is he entitled to a ruling at this time, or must he voluntarily travel to the United States and present himself for arraignment before the court takes his motions under advisement? …”

“This court is authorized to issue a writ of mandamus pursuant to 28 U.S.C. § 1651(a), the All Writs Act. [See also FED. R.APP. P. 21]. This writ is available in the federal courts only in extraordinary circumstances, either ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ … Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 … (1980) …”

“The Supreme Court’s most recent treatment of this topic appears in Cheney v. United States Dist. Court, 542 U.S. 367 (2004). Noting that ‘the writ is one of the most potent weapons in the judicial arsenal’ the Court laid out the three conditions that must be satisfied before it may issue:”


“‘First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’ … ” [406‑7].

As for the first factor, standard procedures cannot resolve the underlying criminal case. The U.S. cannot compel Petitioner to travel to the U.S., and the Kuwaiti government has refused to cooperate in his surrender.

Furthermore, the U.S. cannot hold a criminal trial in absentia. See Crosby v. United States, 506 U.S. 255 (1993). But Crosby does not prohibit what Petitioner is asking for in his motions to dismiss—a pre‑appearance adjudication of whether the criminal statutes in question apply extraterritorially to his alleged conduct abroad. Thus, Petitioner is asking for relief that lies within the power of the district court.

As for the second factor, the Court finds that Petitioner’s right to issuance of the writ is clear and undisputable. “ … Petitioner is attempting to raise fundamental questions about the legislative reach of the Major Fraud Act and the Wire Fraud Act. Whether we think of this as an issue relating to legislative jurisdiction, … , or as something going to the court’s very power to act, there is no doubt that the question of how far a statute reaches out to address conduct undertaken outside the United States, in whole or in part, is a fundamental one. …”

“The Supreme Court’s decision in F. Hoffmann‑La Roche Ltd. v. Empagran, 542 U.S. 155 … (2004), emphasizes the importance and delicacy of the general issue that we face here: ‘… [T]his Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. … This rule of construction reflects principles of customary international law—law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of the Foreign Relations Law of the United States §§ 403(1), 403(2) (1986) (hereinafter Restatement) (limiting (sic) the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another State) …’”

“This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony—a harmony particularly needed in today’s highly interdependent commercial world.”

“ … Many other decisions from the Supreme Court also reflect the presumption (rebuttable to be sure) against extraterritorial effect. While we have no problem with the proposition that the district court was entitled to a reasonable time within which to rule on Petitioner’s motion, the fact is that the court has now twice announced in orders that it is deliberately not ruling, and in neither instance did the court hint that it had not had enough time to consider the motion.”

“Its reasons … relate instead to Petitioner’s decision not to come to Illinois and [on] its concept of mutuality. What is important is that a ruling on this motion is necessary before the prosecution can proceed, and that there is no prospect of such a ruling ever taking place under the approach the district court has taken.”

“Finally, mandamus is appropriate in this case. It raises issues about the reach of U.S. law, and it has not been determined yet whether Petitioner’s contacts with the U.S. are sufficient for prosecution. The court orders that the district court rule on Petitioner’s motions to dismiss.” [408‑9].

Citation: In re Ali Hijazi, 589 F.3d. 401 (7th Cir. 2009).

In 2004, Cambodian police detained one Kent Frank, a U.S. citizen (Defendant) in Cambodia after Officer Keo of the Cambodian National Police (CNP) saw several apparently underage girls leaving Defendant’s hotel room. He interviewed them. Defendant later confessed to CNP officers that he paid the underage girls money for sex acts and for letting him take sexually explicit photographs. Cambodian officers eventually released Defendant who fled to Vietnam. U.S. officials traced him to Vietnam and arrested him there.

A Florida federal court convicted Defendant of various offenses arising out of his sexual acts with the minors. He appealed his conviction claiming, inter alia, that the trial court should have suppressed his Cambodian confession and that 18 U.S.C. § 2251A has no application outside U.S. territory. The U.S. Court of Appeals for the Eleventh Circuit, however, affirms.

Defendant first argued that the lower court should have suppressed his confession in Cambodia because he had not received any Miranda warnings. The district court found that Miranda warnings were not required in this case and that Defendant’s confession was voluntary.

The Court of Appeals agrees. “Generally, ‘statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.’ … The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. .. That is, our ‘Constitution cannot compel such specific, affirmative action by foreign sovereigns.’ … Two exceptions to this general rule are: (1) if the foreign officers’ conduct ‘shocks the conscience of the American court’ and (2) if ‘American officials participated in the foreign . . . interrogation, or if the foreign authorities were acting as agents for their American counterparts,’ also known as the “joint venture” doctrine. See U.S. v. Heller, 625 F.2d 594, 599 (5th Cir. 1980)] …”

“… Defendant’s statements do not fall under the joint venture doctrine. American officials did not know of Defendant’s presence in Cambodia until after he was arrested and did not participate in Defendant’s detention or interrogation. When Agent Phillips attempted to interrogate Defendant, after giving him Miranda warnings, he was cut short when Cambodian officers came in to bring Defendant before a judge. At all times, the Cambodian officers acted out of their own interest in determining whether Defendant violated Cambodian laws. The officers then released Defendant and allowed him to travel to Vietnam without notifying the United States. Consequently, there is no evidence that the Cambodian officers acted as agents of the United States. …”

“Second, Defendant’s interrogation does not shock the judicial conscience. Defendant was not held in a jail but allowed to sleep overnight in Officer Keo’s office. The interview lasted less than two hours. Defendant was treated with respect, offered food and water, and was not beaten or threatened in any way. Based on these facts, we also find that Defendant’s confession was voluntary. … As such, the district court did not err in denying Defendant’s motion to suppress his statements resulting from interrogation by Cambodian officials.” [Slip op. 7‑9]

Defendant next argues that 18 U.S.C. § 2251A should not apply to conduct in Cambodia. In particular, §§ 2251A(b)(2)(A) and (C)(1) provide that “[w]hoever purchases … a minor … with intent to promote … the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and “in the course of the conduct described … the minor or the actor traveled in or was transported in or affecting interstate or foreign commerce” may be imprisoned for 30 years or for life.”

Congress does have the power to apply its laws extraterritorially. The Court then reviews whether Congress so intended in this case. “We presume that statutes only apply domestically, and give extraterritorial effect ‘where congressional intent is clear.’ … However, in United States v. Bowman, 260 U.S. 94, 97‑98 … (1922), the Supreme Court held that extraterritorial application can be inferred in certain cases even absent an express intention on the face of the statute.”

“We have interpreted Bowman to hold that extraterritorial application ‘may be inferred from the nature of the offense[] and Congress’ other legislative efforts to eliminate the type of crime involved.’ … Crimes fall under the Bowman exception when limiting ‘their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens . . . in foreign countries as at home.’ … Thus, we have upheld extraterritorial application of statutes ‘where the nature of the activities warranted a broad sweep of power.’ …”

“We must determine whether Congress intended § 2251A to apply to United States citizens engaged in conduct wholly outside of the United States. To date, no circuit court has decided this issue. … After considering the language of the statute, the nature of the offense covered by 18 U.S.C. § 2251A, and Congress’s other efforts to combat child pornography, we find that 18 U.S.C. § 2251A applies extraterritorially to reach Defendant’s conduct.”

“[…] Section 2251A requires that, in the course of the prohibited conduct, the defendant or minor ‘travel[] in . . . interstate or foreign commerce,’ making plain Congress’s intent that the statute sweep broadly and apply extraterritorially. 18 U.S.C. § 2251A(c)(1) … For example, 18 U.S.C. § 2423(c), which punishes anyone ‘who travels in foreign commerce, and engages in any illicit sexual conduct,’ has been applied extraterritorially. United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006) (holding that the title of the statute, ‘Engaging in illicit sexual conduct in foreign places,’ and the requirement that the defendant ‘travel[] in foreign commerce,’ evinced Congressional intent to apply the statute extraterritorially) …”

“Furthermore, extraterritorial application is supported by the nature of § 2251A and Congress’s other efforts to combat child pornography. Section 2251A is part of a comprehensive scheme created by Congress to eradicate the sexual exploitation of children and eliminate child pornography, and therefore warrants a broad sweep. … Since 1977, Congress has passed numerous statutes to combat child pornography and the sexual exploitation of children. … As part of this effort, § 2251A was included in the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100‑690, Title VII, Subtitle N, § 7512, 102 Stat. 4181 (1988) (‘1988 Act’). …. The statute falls under Chapter 110 of Title 18 of the United States Code, which punishes offenses dealing with the sexual exploitation and other abuse of children. […]”

“Congress has also amended its laws to allow for extraterritorial application when it has discovered loopholes in its statutory scheme. … For instance, Congress amended 18 U.S.C. § 2423 in 2003 to eliminate the requirement that the government had to prove the intent to engage in sexual activity, and instead allowed prosecution where the defendant traveled in foreign commerce and actually engaged in illicit sexual activity with a minor. See PROTECT Act, § 105, 117 Stat. at 654, codified as amended at 18 U.S.C. § 2423 (c); H.R. Rep. No. 107‑525 (2003) (Congress noted that this ‘legislation [would] close significant loopholes in the law that persons who travel to foreign countries seeking sex with children are currently using to their advantage in order to avoid prosecution’). Additionally, Congress enacted 18 U.S.C. § 2251(c) to clarify that acts covered under 18 U.S.C. § 2251(a) applied extraterritorially. See H.R. Rep. No. 108‑66, at 62‑63 (2003) (Conf. Rep.) (implying that the enactment of § 2251(c) was partly in response to Thomas).”

“The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially.” [Slip op. 10‑16]

Finally, the exercise of jurisdiction over Defendant comports with international law. Defendant is a U.S. citizen, thus there was jurisdiction based on the “nationality principle” which permits a country to exercise wide‑reaching criminal jurisdiction over one of its nationals.

Citation: United States v. Frank, 599 F.3d 1221 (11th Cir. 2010).

Julio Lejia‑Sanchez (Defendant) was the purported leader of a criminal organization in Mexico that produced fraudulent driver’s licenses, social security cards, permanent residence cards, and other government‑issued documents. According to the indictment, Defendant’s organization smuggled many of its employees and customers into the U.S. from Mexico.

At issue in this case is Defendant’s motion to dismiss Count III of the indictment; it charged that Defendant had violated 18 U.S.C. 1959 dealing with violent crimes in aid of racketeering activity by arranging for the murder in Mexico of one of his former employees named Guillermo Jimenez Flores. The district court dismissed Count III, ruling that § 1959 does not apply extraterritorially. The United States duly appealed and the Seventh Circuit reverses.

The United States argued that criminal statutes apply to criminal actions even if some part is conducted abroad, relying on United States v. Bowman, 260 U.S. 94 (1922). The district court, however, had apparently relied on EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) and other decisions that established a presumption that civil statutes do not apply to activity outside the United States.

In the Court’s view: “Civil decisions such as Aramco cannot implicitly overrule a decision holding that criminal statutes are applied differently. The main reason for requiring a clear legislative decision before applying a civil statute to activity outside our borders is that nations often differ with respect to [what constitutes] acceptable [non‑criminal] conduct. See Aramco, supra at 248. Title VII of the Civil Rights Act of 1964, the statute at issue in Aramco, forbids religious discrimination, but other nations may impose religious tests. […]”

“Nations differ in the way they treat the role of religion in employment; they do not differ to the same extent in the way they treat murder. They may use different approaches to defenses, burdens of proof and persuasion, the role of premeditation, and punishment, but none of these is at stake here. It is not as if murder were forbidden by U.S. law but required (or even tolerated) by Mexican law. The crime in Bowman was fraud; the Court observed that fraud was unlawful in all of the places where Bowman’s scheme was implemented.”

“Whether or not Aramco and other post‑1922 decisions are in tension with Bowman, we must apply Bowman until the Justices themselves overrule it. [‘If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 … (1989).] … The Supreme Court has neither overruled Bowman nor suggested that the courts of appeals are free to reconsider its conclusion.” [798‑799]

“The Court also clarifies that Bowman does not require statutes to always apply extraterritorially. Instead, courts must consider whether the language and function of the statute so require. See Restatement (Third) of Foreign Relations Law, Section 402(1) (U.S. may apply its law to conduct that either takes place ‘in substantial part’ within the U.S. or has a ‘substantial effect’ in the U.S.”

“Any international repercussions of the decision to prosecute [Defendant] are for the political branches to resolve with their counterparts in Mexico, rather than matters for the judicial branch. That diplomacy has occurred already. [Defendant] fled to Mexico, which extradited him to the United States to face all of the indictment’s charges. The United States promised not to seek or impose the death penalty for the murder; Mexico was satisfied with that undertaking and saw no reason why the United States should not apply its substantive rules.”

“Given the holding of United States v. Alvarez‑Machain, 504 U.S. 655 ¼ (1992), that prosecution in the United States is permissible even if the defendant arrives [here] by kidnapping rather than formal extradition, this prosecution is easy to support. The substantive offense in Alvarez‑Machain was the murder in Mexico, by a Mexican national, of two persons who were helping to enforce U.S. drug laws; the statute said to be violated in Alvarez‑Machain was § 1959, because the murders helped an international drug ring continue in business.”

“The Supreme Court was not asked to hold in Alvarez‑Machain that applying § 1959 in this fashion would have been impermissibly extraterritorial, so its decision is not direct authority. But we conclude that what the parties assumed in Alvarez‑Machain that § 1959 applies to a murder in another nation designed to facilitate the operation of a criminal enterprise in the United States is indeed the law.” [602 F.3d 801‑802].

Citation: United States v. Leija‑Sanchez, 602 F.3d 797 (7th Cir. 2010).

The Defendant in this case is a lawyer specializing in health law. The Patient is Ms. K, born in 1931 and in a persistent coma since 2002. Ms. K made oral statements shortly before she fell into the coma that she did not wish any life‑extending measures and that she did “not want to be connected to any tubes.” A dispute broke out between Ms. K’s children and the Nursing Home where Ms. K was staying. Eventually, the parties agreed in 2007 that the Nursing Home would provide only palliative care and the children could terminate Mrs. K’s artificial nutrition. The Nursing Home administration later prevented the termination of artificial nutrition.

The Defendant advised the children of Ms. K to simply cut the tube that provides the nutrition. The children did so, but were discovered within minutes. Police were called in, and Ms. K was taken to a hospital where she died two weeks later from her multiple diseases. The district court in Fulda, Germany, convicted the Defendant of attempted manslaughter and sentenced him to nine months imprisonment. This appeal ensued.

Germany’s highest court, the Bundesgerichtshof (BGH), reverses. The Court summarizes its holdings as follows: (1) assisted suicide through withholding, limitation or termination of medical treatment is justified if this complies with the actual or presumed intent of the patient (Section 1901a BGB), and allows a terminal medical condition to take its course; (2) a termination of medical treatment can occur not only through withholding of treatment but also by affirmative acts; (3) specific acts that affect human life, which are not related to the termination of medical treatment, cannot be justified with the Patient’s consent.

The Court notes that this case arose before the federal law on “living wills” (advance health care directives) became effective in September 2009 (Patientenverfuegungsgesetz, Gesetz vom 29.07.2009, BGBl. I. S. 2286). The oral consent given by the Patient in September 2002, which has been corroborated, was binding both under the law at the time of the events and under the new federal law on living wills. The district court erred by holding that the Defendant had committed attempted manslaughter by actively preventing the continued artificial nutrition of the Patient. The Patient’s consent justifies not only the termination of life‑supporting measures, but also affirmative acts that terminate unwanted medical treatments.

Citation: [German] Bundesgerichtshof (BGH), Urteil vom 25. Juni 2010 ‑ 2 StR 454/09. The decision is available through the Court’s website

Beginning in 2001, Gi‑Hwan Jeong, a citizen of South Korea, was successfully bribing two U.S. officials to obtain a $206 million contract relating to the U.S. Army and Air Force Exchange Service (AAFES) for his company, Samsung Rental Company, Ltd. (SRT). Under the contract, SRT would provide internet and other telecommunication services to U.S. military installations in South Korea.

Jeong came under investigation by U.S. and South Korean investigators. AAFES terminated the contract with SRT in 2007, and in 2008 a South Korean court convicted Jeong of bribing U.S. officials. The court sentenced him to time served (58 days) as well as to pay a fine of about $10,000.

That, however, was far from ending the U.S. investigation. The U.S. requested assistance pursuant to the Treaty Between the United States of America and the Republic of Korea on Mutual Legal Assistance in Criminal Matters, U.S.‑South Korea, November 23, 1993, S. Treaty Doc. No. 104‑1 (1995) [in force May 23, 1997]. The request acknowledged Jeong’s conviction and stated that the U.S. was not seeking to prosecute.

AAFES then invited Jeong to a meeting in Dallas, Texas, for a discussion. Jeong did in fact travel to the U.S. where the U.S. arrested him upon arrival. A Grand Jury then indicted Jeong for federal bribery under 18 U.S.C. 201(b)(1), conspiracy under 18 U.S.C. 371, and wire fraud under 18 U.S.C. 1343 and 1346.

Jeong moved to dismiss the indictment claiming that the U.S. lacked jurisdiction to prosecute him. In particular, he argued [1] that the federal bribery statute does not apply extraterritorially; [2] that the prosecution violates the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (December 17, 1997, S. Treaty Doc. No. 105‑433 (1998)) [in force February 15, 1999] (Convention) of the Organization for Economic Cooperation and Development (OECD); and [3] that Article 4.3 of the Convention bars multiple prosecutions for the same offense. Both the U.S. and South Korea are signatories to the Convention.

The Korean Ministry of Justice submitted a statement to the district court supporting Jeong’s motion to dismiss. It contended that the U.S. had not timely asserted jurisdiction to prosecute Jeong, as confirmed in the U.S. request under the Mutual Assistance Treaty; thus, the U.S. had effectively waived that right. The district court denied the motion [1] because federal bribery laws do in fact apply extraterritorially and [2] because the Convention does not bar multiple prosecutions. Jeong pleaded guilty but exercised his right to appeal the denial of his motion to dismiss. The U.S. Court of Appeals for the Fifth Circuit, however, affirms Jeong’s American conviction.

According to Jeong, the Convention bars a signatory party from prosecuting a foreign national whose alleged offenses had occurred abroad. Article 4.3 of the Convention provides that, when more than one jurisdiction can prosecute, the governments involved should—at the request of one of them—consult to determine the most appropriate jurisdiction for prosecution.

The Court of Appeals, however, disagrees. “We apply the traditional canons of interpretation to Article 4.3. ‘The interpretation of a treaty, like the interpretation of a statute, begins with its text.’… We must interpret the text ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ … Only if the language of a treaty, when read in the context of its structure and purpose, is ambiguous may we ‘resort to extraneous information like [1] the history of the treaty, [2] the content of negotiations concerning the treaty, and [3] the practical construction adopted by the contracting parties.’ … Finally, [4] we may not ‘alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial,’ for to do so ‘would be … an usurpation of power, and not an exercise of judicial function.’ …”

“Applying these canons, we conclude that the plain language of Article 4.3 does not prohibit two signatory countries from prosecuting the same offense. Rather, the provision merely establishes when two signatories must consult on jurisdiction. Article 4.3 states that two signatories with concurrent jurisdiction over a relevant offense must, ‘at the request of one of them,’ consult on jurisdiction.”

“The phrase ‘at the request of one of them’ is a dependent clause that conditions the consultation requirement upon the existence of a request. Where no such request is made, then, the ordinary reading of Article 4.3 is that consultation is not required. Jeong is, therefore, incorrect that the provision requires consultation in every instance of concurrent jurisdiction. In the case at hand, the record shows that neither the U.S. nor South Korea requested consultation on their concurrent jurisdiction to prosecute Jeong. That they did not consult on jurisdiction, therefore, does not violate Article 4.3.”

“Even if the U.S. and South Korea had been required to consult on jurisdiction, however, it would not follow that only one of the two nations could prosecute Jeong. Article 4.3 requires that consultation be made ‘with a view to determining the most appropriate jurisdiction for prosecution.’ Jeong argues that because the provision uses the singular, not plural, form of ‘jurisdiction,’ prosecution of an offense may be had in only one jurisdiction.”

“But this reading impermissibly engrafts additional requirements on the clause, and we may not ‘alter, amend, or add to’ the plain language of a treaty. … The plain language of the clause provides that where consultation is required, the parties need only consult ‘with a view to determin[e]’_the jurisdictional question ‑‑ they need not actually answer it. And, most significantly, the provision requires nothing more than consultation upon request; it does not require any additional actions of the party countries.” [711‑712].

Alternatively, Jeong argues that the U.S. expressly and impliedly waived jurisdiction, and, therefore. the indictment is invalid. Again, the Court disagrees. “Implicit in Jeong’s argument is a presumption that although the U.S. and South Korea both had the right to prosecute him for his offenses, only one of the two countries was permitted to exercise that right. Operating under this [alleged] presumption, Jeong argues that the U.S. impliedly and expressly ceded its right of prosecution to South Korea.”

“In an omission fatal to his argument, however, Jeong fails to identify any source of domestic or international law that permits such a presumption. At the outset, we note that it is doubtful whether Jeong has recourse in domestic law. For instance, we have held that the Double Jeopardy Clause of the Fifth Amendment ‘only bars successive prosecutions by the same sovereign.’ U.S. v. Villanueva, 408 F.3d 193, 201 (5th Cir.2005); see also U.S. v. Martin, 574 F.2d 1359, 1360 (5th Cir.1978) (‘The Constitution of the U.S. has not adopted the doctrine of international double jeopardy.’) … Double jeopardy thus does not attach when separate sovereigns prosecute the same offense, as here.”

“In addition, Jeong has not pointed us to any applicable international law that limits the U. S’s jurisdiction over the offenses in this case ‑‑ nor have we found any in our own research. There are three accepted sources of international law in the U.S.: [1] customary international law, [2] international agreement, and ]3] ‘general principles common to the major legal systems of the world.’ Restatement (Third) of Foreign Relations Law of the United States § 102(1) (1987) (hereinafter Restatement). … The ‘exercise of jurisdiction by courts of one state that affects interests of other states is now generally considered as coming within the domain of customary international law and international agreement.’ Restatement ch. 2, intro. note.”

“Jeong, however, has not cited any relevant international agreement or custom applicable here. Because Jeong has not identified ‑‑ nor does the record show ‑‑ a legal agreement between the U.S. and South Korea that would permit a conclusion of jurisdictional waiver in this case, we simply lack a basis in which to evaluate Jeong’s waiver claims. …We must therefore conclude that Jeong’s waiver claim fails.” [712‑713].

Citation: United States v. Jeong, 624 F.3d 706 (5th Cir. 2010).

On October 24, 2006, a grand jury in Washington County, Maryland, U.S.A. indicted a Mr. Edwards (Applicant) on 11 counts, relating to the death of one J. Rodriguez, the non‑fatal shooting of T. Perry, and assault of a third man, S. Broadhead. The most serious charges are [1] murder in the first degree of Rodriguez; and [2] attempted murder in the second degree of Perry. The 3rd and 4th counts are alternatives to counts 1 and 2, charging the applicant with murder in the second degree of Rodriguez and attempted murder in the second degree of Perry.

Applicant, Rodriguez, Perry and Broadhead were visiting the apartment of a friend on the evening of July 23, 2006. Applicant began to argue with Rodriguez and Perry who had made fun of his small stature and feminine appearance. Applicant left the apartment and later returned with 3 other men. Broadhead told the police that, while the other men in the kitchen were restraining him, Applicant produced a handgun and went into the living room. Shots were then fired killing Rodriguez and injuring Perry with a non‑fatal gunshot wound to his head. Somehow Applicant fled the U.S. and ended up in the United Kingdom.

On January 21, 2007, U.K. authorities arrested Applicant pursuant to a provisional warrant of arrest issued under section 73 of the Extradition Act 2003. In an affidavit of March 14, 2007, Mr. Joseph S. Michael, an attorney in the Office of the State’s Attorney for Washington County, Maryland, outlined the facts of this case and the state charges against the Applicant. As to count I, he stated: “Although a defendant convicted of first degree murder may, under certain circumstances, be subject to the death penalty, none of those circumstances exist in this case. Consequently, the maximum penalty is life in prison.”

The U.S. Embassy in London issued Diplomatic Note 12 in March 2007. It asked for Applicant’s extradition to the U.S. for trial. The Note specified that both Counts one and two carried a maximum penalty of life imprisonment, and that count two, attempted first‑degree murder, also carried a maximum penalty of life imprisonment.

Later that month, the Secretary of State certified that the extradition request was valid. In a decision given on April 16, 2007, the district judge, sitting at the City of Westminster Magistrates’ Court, ruled that the extradition could proceed. He held that, inter alia, Applicant’s extradition would not be incompatible with his rights under Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 312 U.N.T.S. 221 as amended [ECPHR]. [It provides: “Article 3. Prohibition of Torture. No one shall be subjected to torture or to inhuman or degrading treatment.”]


The Maryland Criminal Code stated that it was up to the State of Maryland to seek the death penalty. The extradition request clearly declared that it would not do so. The District Judge accordingly sent the case to the U.K. Secretary of State for his decision as to whether the U.K. should extradite the Applicant to Maryland.

On June 5, 2007, the U.S. Embassy issued a further diplomatic note on Applicant’s case. It assured the U.K. Government that Applicant was not subject to the death penalty, that Maryland would not seek or carry out the death penalty upon his extradition to the United States, and that the Deputy State Attorney of the State of Maryland has assured the U.S. Federal Government of this decision.

Three weeks later, the U.K. Secretary of State ordered Applicant’s extradition. Applicant appealed to the High Court, inter alia, on the ground that a sentence of life imprisonment without the possibility of parole amounted to “inhuman or degrading treatment” in violation of ECPHR Article 3.

On July 26, 2007, in a second affidavit in support of the extradition, Mr. Michael provided further details of the potential sentences for first‑degree murder under Maryland law. He stated: “5.This particular case qualifies for a maximum penalty of life imprisonment under Maryland Ann. Criminal Law § 2‑201(b). The Death Penalty does not apply.”

Given the heinous nature of the instant case, which the State characterizes as a[n] ‘execution style’ homicide, which claimed one life, and seriously and permanently injured a second victim, the State anticipates that it will ask the Court to impose a life sentence without the possibility of parole under Maryland Criminal Law §2‑203 and §2‑304(a)(1).

In the present case, in the event that the State did in fact file its notice of intention to seek life without parole, the trial judge would be the sole sentencing authority. State law grants the judge the discretion to impose one of the following 3 types of sentence: [1] life without the possibility of parole; [2] life with the possibility of parole; or [3] life with the possibility of parole, with all but a certain number of years suspended, followed by up to 5 years of probation.

In Mr. Michael’s experience, “there is no way to accurately predict what sentence a defendant will face if convicted of first‑degree murder.” Mr. Michael added that a person convicted of first‑degree murder was entitled to a pre‑sentencing investigation. This involves a background report from the Department of Parole and Probation on the Defendant and includes information received from the surviving victims.

Convicted defendants also have the right to apply for review of the sentencing by the sentencing judge and thereafter for review by 3 other circuit judges. Mr. Michael also stated he was unprepared to offer an opinion on any mitigating factors which might affect Applicant’s sentence if a court convicts him of first‑degree murder.


Mr. Michael continued: “In general terms, the Washington County Circuit Court [the county where Applicant would be tried] has considered as mitigating factors several known attributes possessed by Applicant: youth and lack of serious criminal history. The single biggest mitigating factor in regard to whether a defendant receives life without parole would be an acceptance of responsibility upon the part of a given defendant.”

Before the U.K. High Court, Applicant accepted that the House of Lords’ ruling in Regina v. Lichniak [25 November 2002] [202 UKHL 47] precludes an appeal based on Article 3 of the ECPHR and conceded that it had to be dismissed. On July 27, 2007, the High Court therefore dismissed Applicant’s appeal on this ground, allowing only his appeal that count 10 of the indictment was not an extraditable offence. The Court also refused to certify to the House of Lords a point of law of general public importance.

On August 1, 2007, this Applicant lodged an application with the European Court of Human Rights (ECHR) and requested an interim measure to stay his extradition. On August 3, 2007 the President of the assigned Chamber decided to *574 apply Rule 39 of the Rules of Court. It therefore indicated to the Government of the United Kingdom that it should not extradite the Applicant until further notice. The ECHR then relates the various extradition arrangements between the United Kingdom and the United States. [Another Applicant named Harvey was considered along with Mr. Edwards but is not covered herein.]

  1. A seven‑ judge panel of the ECHR explains its rulings and their bases. “For [Mr. Edwards], the applicable bilateral treaty on extradition was the 1972 UK–USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 Treaty provided that extradition could be refused unless the requesting party gave assurances satisfactory to the requested party that the death penalty would not be carried out. II. For relevant U.K. law on article 3 and extradition: see Regina (on the application of Wellington) v. Secretary of State for the Home Department, [2008] UKHL 72; [2009] 1 A.C. 335.
  2. “[In that case] [t]he United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on 3 counts of murder in the first degree. In his appeal against extradition, Mr. Wellington argued that his surrender would violate art. 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.”
  3. “In giving judgment in the High Court,[7] Laws L.J. found that there were ‘powerful arguments of penal philosophy’ which suggested that risk of a whole‑life sentence without parole intrinsically violated Article 3 of the Convention. He observed: ‘The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self‑defence or just war; but retributive punishment is never enough to justify it.”


“Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence, the whole‑life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment, for the whole‑life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for.”

“But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip‑service to the value of life; not to vouchsafe it. However, and ‘not without misgivings’, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.”

  1. “Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on December 10, 2008. Central to the appeal was at [89] of this Court’s judgment in Soering v. United Kingdom, (A/161) (1989) 11 E.H.R.R. 439; Times, July 8, 1989. There the Court stated that considerations in favour of extradition: ‘[m]ust also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.’”
  2. “A majority of their Lordships,[Lord Hoffmann, Baroness Hale and Lord Carswell,] found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill‑treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. Insofar as Article 3 applied to inhuman and degrading treatment and not to torture, however, it was applicable only in a relativist form to extradition cases.”
  3. “Lord Hoffmann, giving the lead speech, considered the Court’s judgment in the case of Chahal v. United Kingdom, (22414/93) (1997) 23 E.H.R.R. 413; 1 B.H.R.C. 405; Times, November 28, 1996; in which the Court stated that: ‘It should not be inferred from the Court’s remarks [in] Soering that there is any room for balancing the risk of ill‑treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 is engaged.’ Lord Hoffmann stated: ‘In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture.”

“I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.”

“For Lord Hoffmann, in Soering made clear that: ‘[T]he desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.’”


“He went on to state: ‘A relativist approach to the scope of Article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers, 2005 1 S.C. 229; 2004 S.L.T. 555; 2004 S.C.L.R. 558; [2004] U.K.H.R.R. 881; [2005] (2005) S.C. 229, that, in Scotland, the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of Article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If it were applied in the context of extradition, however, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.”

  1. “A minority of their Lordships [Lord Scott and Lord Brown,] disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy (37201/06) (2009) 49 E.H.R.R. 30; 24 B.H.R.C. 123; [2008] Imm. A.R. 519; [2008] I.N.L.R. 621; [2008] Crim. L.R. 898; ECHR (Grand Chamber) had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering.”

He explained “There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading.”

“That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries [(see para 27 of Lord Hoffmann’s opinion)] ¼ the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ (Soering, para 86) and Article 3 does not bar removal to non‑Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment.”

“Nor is it to say that a risk of Article 3 ill‑treatment, the necessary pre‑condition of an Article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142: ‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill‑treatment ¼ in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof ¼ before ¼ finding *577 that the enforcement of removal from the territory would be contrary to Article 3 of the Convention.”


“As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’” Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.”

  1. “Despite these different views, however, none of the Law Lords found that the sentence likely to be imposed on Mr. Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus, (21906/04) (2009); 49 E.H.R.R. 35; 25 B.H.R.C. 591; [2010] 1 Prison L.R. 1; ECHR (Grand Chamber).”

“All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not per se constitute inhuman and degrading treatment in violation of Article 3, unless it were grossly or clearly disproportionate.”

“Lord Brown in particular noted: ‘Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber in Kafkaris would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating Article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that Article 3 may be engaged.’

“Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. Lord Brown, however, considered that, in a more compelling case, such as the mercy killing of a terminally‑ill relative, this Court: ‘[M]ight well judge the risk of ill‑treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on Article 3 grounds.”

  1. “Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Laws L.J.’s view that life imprisonment without parole was lex talionis. Lord Hoffmann, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence.”
  2. “Wellington’s application to this Court was struck out on October 5, 2010, the Applicant having indicated his wish to withdraw it. “ *578

* * * *


  1. “Applicant [Edwards] faces, at most, a discretionary sentence of life imprisonment without parole. Given that this sentence will only be imposed after consideration by the trial judge of all relevant aggravating and mitigating factors, and that it could only be imposed after the applicant’s conviction for a premeditated murder in which one other man was shot in the head and injured, the Court is unable to find that the sentence would be grossly disproportionate.”
  2. “Moreover, for the reasons it has given in respect of the first applicant, the Court considers that Applicant (Edwards) has not shown that incarceration in the United States would not serve any legitimate penological purpose, still less that, should that moment arrive, the Governor of Maryland would refuse to avail himself of the mechanisms which are available to him to reduce a sentence of life imprisonment without parole. ¼Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

Alleged violation of Article 5 of the Convention

  1. The Court then considers the Applicant’s claim that there would be a violation of Article 5 of the Convention. “Applicant Edwards [also] submitted that, if the Court did not examine his complaint relating to his sentence under Article 3, then, alternatively, that issue could be examined under Article 5 which guarantees the right to liberty and security. In particular, Article 5(1)(a) and (4) provide: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ¼4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’”
  2. “This Court considers that, even assuming that this submission is intended to raise a separate issue from the complaint made under Article 3, it has been determined by its recent admissibility decision in Kafkaris v. Cyprus (No.2). [120] That application was introduced by Mr. Kafkaris following the Grand Chamber’s judgment in his case. He complained, inter alia, that, under Article 5(4), he was entitled to a further review of his detention, arguing that his original conviction by the Limassol Assize Court was not sufficient for the purposes of that provision.”

“He submitted that he had already served the punitive period of his sentence and, relying on Stafford v. United Kingdom, (46295/99) (2002) 35 E.H.R.R. 32; 13 B.H.R.C. 260; [2002] Po. L.R. 181; [2002] Crim. L.R Stafford. 828; (2002) 152 N.L.J. 880; Times, May 31, 2002. ECHR argued that new issues affecting the lawfulness of his detention had arisen. These included the Grand Chamber’s finding of a violation of Article 7, the Attorney General’s subsequent refusal to recommend a presidential pardon and the fact that, in habeas corpus proceedings, the Supreme Court had failed to consider factors such as his degree of dangerousness and rehabilitation.”

  1. “The Court rejected that complaint as manifestly ill‑founded. The Court found that the Assize Court had made it quite plain that the applicant had been sentenced to life imprisonment for the remainder of his life. It was clear, therefore, that the determination of the need for the sentence imposed on the applicant did not depend on any elements that were likely to change in time. [122] The ‘new issues’ relied upon by the applicant could not be regarded as elements which rendered the reasons initially warranting detention obsolete or as new factors capable of affecting the lawfulness of his detention.”

“Nor could it be said that the Applicant’s sentence was divided into a punitive period and a security period as he claimed. Accordingly, the Court considered that the review of the lawfulness of the Applicant’s detention required under Article 5(4) had been incorporated in the conviction pronounced by the courts, no further review therefore being required.”

  1. “The Court considers the complaint made in the present cases to be indistinguishable from the complaint made in Kafkaris (No.2). It is clear from the provisions of Maryland law which are before the Court that any sentence of life imprisonment without parole would be imposed to meet the requirements of punishment and deterrence. Such a sentence would therefore be different from the *607 life sentence considered in Stafford, which the Court found was divided into a tariff period (imposed for the purposes of punishment) and the remainder of the sentence, when continued detention was determined by considerations of risk and dangerousness.”

“Consequently, as in Kafkaris (No.2), the Court is satisfied that, if convicted and sentenced to life imprisonment without parole, the lawfulness of Applicant’s detention required under Article 5(4) would be incorporated in the sentence imposed by the trial, and no further review would be required by this Article. Accordingly, this complaint is manifestly ill‑founded and must be rejected.”

Citation: [Mr. Edwards’ Application No. [9146/07 and 32650/07] [Harkins and] Edwards v. United Kingdom, (2012) 55 E.H.R.R. 19; 19 Times, 2/13/2012 (Eur. Ct. Hum. Rts. 2012).

Nizar Trabelsi was a Tunisian national convicted in Belgium for a variety of crimes, including attempting to destroy a military base. *1183

On April 7, 2006, while Trabelsi was serving his sentence in Belgium, a grand jury in the United States indicted him for various offenses. The indictment charged Trabelsi with four Counts: Count 1—conspiracy to kill United States nationals outside of the United States in violation of 18 U.S.C. §§ 2332(b)(2) and 1111(a); Count 2—conspiracy and attempt to use weapons of mass destruction against nationals of the United States while such nationals were outside of the United States, and against property used by the United States and a department and agency of the United States in violation of 18 U.S.C. §§ 2332a and 2; Count 3—conspiracy to provide material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. § 2339B; and Court 4—providing material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. §§ 2339B and 2.

The United States requested that Belgium extradite Trabelsi on April 4, 2008, attaching an affidavit from the Department of Justice describing the offenses, and their elements, for which the United States sought to prosecute him. Trabelsi challenged the extradition request in Belgium, arguing that his extradition would violate certain provisions of the Extradition Treaty. On November 19, 2008, the Court Chamber of the Court of First Instance of Nivelles held that the United States arrest warrant was enforceable, except as to the overt acts labeled numbers 23, 24, 25, and 26 in the indictment. The Court of Appeals of Brussels affirmed this decision on February 19, 2009. On June 24, 2009, the Belgian Court of Cassation affirmed the Court of Appeals. *1184

The District Court concluded that Trabelsi had standing to challenge his extradition and that it had jurisdiction to review his extradition. Using the analysis articulated in Blockburger, 284 U.S. 299, 52 S.Ct. 180, the District Court determined that Trabelsi was not charged with the same offenses in the indictment for which he was tried and convicted in Belgium. By application, Trabelsi appealed the Minister’s decision to the Belgian Council of State, which also concluded that the United States offenses are different and that “’overt acts’ constitute elements to determine whether [Trabelsi] is guilty or not guilty,” and rejected his application on September 23, 2013. Belgium extradited Trabelsi to the United States on October 3, 2013. He was arraigned the same day.

On September 15, 2014, Trabelsi moved to dismiss the indictment for violating the Extradition Treaty. He argued that his extradition violated Article 5 of the Treaty because Belgium had already tried and convicted him “for the offense for which extradition was requested.” Using the analysis articulated in Blockburger, 284 U.S. 299, 52 S.Ct. 180, the District Court determined that Trabelsi was not charged with the same offenses in the indictment for which he was tried and convicted in Belgium, J.A. 754-64. Trabelsi appealed the decision. *1185

The United States Court of Appeals held that the District Court’s order denying Trabelsi’s motion to dismiss the indictment fits within the collateral-order exception, and it had jurisdiction to consider Trabelsi’s appeal. See Duarte-Acero, 208 F.3d at 1284 (applying Abney to a motion to dismiss an indictment based on a double-jeopardy provision included in a treaty).

The Government contended that the Appeals Court lacked jurisdiction to review Trabelsi’s extradition because it must defer to Belgium’s decision that the offenses charged in the indictment did not violate Article 5 of the Treaty. Trabelsi submitted that the Appeals Court had jurisdiction to review his extradition and owed no deference to Belgium’s decision. The Court held that it did have jurisdiction to review Belgium’s decision, but that the review was highly deferential. *1186

It was for Belgium, as the requested party, to determine whether to grant extradition, see Treaty, Art. 11, S. TREATY DOC. NO. 104-7, if Trabelsi “ha[d] [not] been found guilty, convicted, or acquitted in [Belgium] for the offense for which extradition [was] requested,” Treaty, Art. 5, S. TREATY DOC. NO. 104-7. The Belgian Minister determined that Trabelsi’s extradition would not violate the Treaty, and the Court of Appeals will not “second-guess [Belgium’s] grant of extradition.” Campbell, 300 F.3d at 209.

The deferential approach meant that “we will presume that if [Belgium] does not indicate that an offense specified in the request is excluded from the extradition grant, [Belgium] considers the offense to be a crime for which extradition is permissible.” Campbell, 300 F.3d at 209. The extradition grant did not exclude any of the offenses included in the request for extradition. As a result, the Court presumed that Belgium has determined that none of the offenses in the indictment violated Article 5 of the Treaty. This presumption was not irrebuttable, however. Evidence that might rebut the presumption would include misconduct on the part of the United States in procuring an extradition, see Casey, 980 F.2d at 1475, or the absence of review of the extradition request by the requested party. Trabelsi, however, offered no such evidence. *1189

The legislative history surrounding the Extradition Treaty’s ratification also supported interpreting the Treaty to apply to offenses, not conduct. The Senate Committee on Foreign Relations issued an Executive Report at the time the Treaty was ratified in 1996. The report explains that “[t]his paragraph permits extradition… if the person sought is charged in each Contracting State with different offenses arising out of the same basic transaction.” Id. (emphasis added). The Court deferred to the decision of the Belgian courts and Minister of Justice that, based on an offense-based analysis, Trabelsi’s extradition comported with Article 5 of the Treaty, since Trabelsi had offered nothing of merit to rebut the presumption. Because Trabelsi’s challenges failed, the Court was not needed to decide whether the charges in the U.S. indictment and the crimes for which Belgium convicted Trabelsi were identical under Blockburger. *1190

The concurring colleague stated that Belgian courts should be not be accorded this measure of deference and that, instead, the Court should test the indictment under Blockburger. The other judges could not agree for three principal reasons: First, Blockburger applies when a defendant raises a challenge under the Double Jeopardy Clause of the U.S. Constitution, but Trabelsi did not and could not present such a challenge in this matter; Second, given the historical context of the Treaty, it is implausible that Article 5 mandates a Blockburger analysis as in 1987, when the Treaty was ratified, the law of double jeopardy under the U.S. Constitution was not settled;  Third, the deferential approach protected each party’s prerogatives under the Treaty. Belgian authorities repeatedly construed Belgian criminal law, and stacked those constructions up against the proffered description of U.S. criminal law. These analyses showed that Belgium had a reasoned basis for concluding that Trabelsi could be extradited, and that conclusion—based in substantial measure on Belgium’s construction of its own law—is entitled to considerable deference. *1192

Even outside the context of specialty and dual criminality, U.S. courts will defer to the judgment of foreign courts construing their own laws. See, e.g., United States ex rel. Saroop v. Garcia, 109 F.3d 165, 168-69 (3d Cir. 1997) (affirming an extradition after “defer[ring] to the judgment of the High Court of Justice for Trinidad and Tobago on the validity of the [operative] extradition treaty and its continuing vitality at the time of … extradition”).

International comity remains important in this context. The deference here is customary, rather than “excessive” or “extraordinary,” as the concurring colleague claimed. *1193

The concurring colleague casts doubt on the Belgian proceedings because, purportedly, “Belgium has fulfilled its interest in this case.” Concurring Op. at 1195. But the Judges had no reason to suppose that because Trabelsi served his Belgian sentence, Belgian authorities subjected the extradition request to lighter scrutiny than was warranted; the double-jeopardy principle itself is worth protecting. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 476 cmt. c (AM LAW INST. 1987) (“The principle that a person should not be subject to double jeopardy is common to legal systems generally, and in many countries is constitutionally mandated.”). The record contains nothing to support the concurrence’s speculation.

The Court of Appeals affirmed the order denying Trabelsi’s motion to dismiss the indictment.

CITATION: US v. Trabelsi, 845 F. 3d 1181—Court of Appeals, Dist. of Columbia Circuit 2017.

The Petitioner was convicted after trial of Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree, Assault in the Third Degree, and Menacing in the Second Degree after a jury trial before Judge Michael Aloise in Queens. The Petitioner got into an argument with some men on the street, one of whom was an off-duty police officer. The officer claimed Petitioner pulled a gun and threatened people with it until he was arrested, and then allegedly tried to bribe the officer with money after his arrest. The Petitioner’s defense was that the other men started the fight, and the officer was friends with the person who pulled out the gun and planted it on the Petitioner.

At trial, the court curtailed the defense lawyer’s cross-examination, preventing counsel from asking questions that would have established the friendship between the officer and the other men, and further prevented Petitioner from testifying as to facts that would have supported his theory of defense.

After trial, the Petitioner appealed his conviction to the Appellate Division, Second Department and the New York Court of Appeals, which both found that the trial court’s limitations on Petitioner’s attempt to present a defense were improper. But both courts held the error was harmless.

The Eastern District of New York held that the error was not harmless. When a federal court reviews a state court finding of harmless error beyond a reasonable doubt under AEDPA, “a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” The Federal court held that it had “grave doubt that the limitation of petitioner’s case had a substantial effect on the jury, and finds that petitioner suffered actual prejudice.”

The Court went on to hold that because Petitioner had been precluded from presenting a defense, a fundamental Constitutional right, and because there was no overwhelming evidence of his guilt, Federal habeas corpus relief was warranted.

This is an excellent opinion that lays out the Federal Constitutional requirements of the right to present a defense and is worth the read.

You can read the opinion HERE:

Spencer v. Capra

The case is Spencer v. Capra, Docket # 1:17-CV-02179-BMC

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