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legal
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 Posted: Sat Jul 22, 2006 12:19 pm Post subject: Could the U.S. extradite a British citizen? YOU BET! |
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Uncle Sam reaches out across the pond:
NatWest Three bankers facing extradition to the U.S. on wire fraud charges
We were shocked and outraged when a visitor sent us the story, Royal Bank faces pressure over bankers in Enron case, by Raymond Hainey posted at the scotsman.com July 3/06:
| Quote: | The Royal Bank of Scotland was last night under growing pressure to hand over a crucial document that could halt the extradition of three bankers from its subsidiary NatWest to the US to face (wire) fraud charges linked to the collapse of energy firm Enron. The Chancellor, Gordon Brown, is understood to have tried to persuade the Home Secretary, John Reid, to intervene in the case and change current extradition rules.
The NatWest bankers, David Bermingham, Giles Darby and Gary Mulgrew, must leave Britain by midnight on 17 July to face a US court on charges linked to Enron's crash. The charges against the men, dubbed the "NatWest Three", relate to allegations that they defrauded NatWest in a deal with Enron by selling a Cayman Islands-based company for less than it was worth.
But, according to correspondence between the Financial Services Agency sic (Authority) (FSA) and the Serious Fraud Office, the Royal Bank (RBS) has reviewed the transaction and concluded they got a fair price. The three men believe the special report could get the charges against them dismissed. They have already approached Royal Bank chief executive Sir Fred Goodwin asking him to hand over the report. Mr Bermingham said: "If RBS stepped in now, we could get the indictment dismissed. They could step in and say they weren't defrauded and the whole thing would be over."
Barrister Alun Jones QC, who is representing the three, added: "What we do know is that the FSA told us last year that they asked Royal Bank of Scotland to revisit the facts in 2002. "Royal Bank of Scotland then said they had looked at it again and that they sold it at the right price. So we know that there must be a report in RBS showing that the asset was sold at the right price, contrary to the American cases." (emphasis added)
The three have on several occasions asked Sir Fred to bring charges against them in the UK if he believes NatWest was defrauded. The men are being extradited under the Extradition Act 2003 (see the Explanatory Notes for an overview of the statute), which was drafted as part of the war on terror but has been largely used to target alleged white-collar criminals.
In a private meeting with Confederation of British Industry president Sir John Sunderland two weeks ago, Mr Brown revealed he had raised the case of the three men with Mr Reid and lobbied him to take measures to change the extradition rules.
A spokesman for the Royal Bank said: "We will co-operate with all the relevant authorities and robustly defend our case. We continue to reserve our rights against the NatWest Three." |
Background:
Click on FriendsExtradited.org for the latest news on the NatWest 3 extradition.
More about Enron at Wikipedia.
What can you tell me about U.S. wire fraud?
See 941 18 U.S.C. 1343 Elements of Wire Fraud from the U.S. Justice Department's Criminal Resource Manual, October, 1997:
| Quote: | | The elements of wire fraud under Section 1343 directly parallel those of the mail fraud statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme... (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used)... (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); ... (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant's knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); (footnotes omitted) |
See also the sections on Money Laundering, RICO and 960 More Severe Sanctions, Including Forfeiture.
About the lawyers:
Jones & Doobay on Extradition and Mutual Assistance
Hardcover
| Quote: | About the authors:
Alun Jones QC, Barrister, Gray’s Inn, is a leading expert on extradition law who has advised on many international cases and was instructed by the Government of Spain in the Pinochet extradition. He advises extensively in the UK, Europe, The Caribbean, USA and Far East on extradition and mutual assistance matters. He also practices in commercial crime, criminal law and public law.
Anand Doobay, Solicitor, works for the leading commercial and international fraud firm Peters & Peters, specialising in extradition and commercial crime. He has acted for governments, companies and individuals in extradition and mutual assistance matters. He is a member of the Law Society’s International Human Rights Committee and assisted the Law Society with its response to the recent reforms to extradition law and procedure. (From the Publisher's Note). |
Why the increase in U.S. requests for extradition?
Here's what we found under Extradition and Mutual Assistance at the website of law firm Peters and Peters:
| Quote: | | There have also been an increasing number of extradition requests for white collar offences made by the US in respect of activities which have taken place mainly in the UK. Extradition arrangements with the US have been changed recently to remove the requirement for the US to provide evidence. Understandably, this has led to those companies and individuals who conduct business in or with the US to become more concerned about the possibility of extradition requests being made for allegedly criminal conduct taking place mainly in the UK. Our team is recognized as being experts on the US / UK extradition arrangements and is often asked to speak on this area and to provide comments for the media |
See also the Press release of April 13/05 at the Thomson Sweet & Maxwell website. Here are a few excerpts:
| Quote: | Directors of UK companies with just one shareholder in the US could be extradited to the US in cases of alleged fraud, warns Alun Jones QC , the UK's leading extradition expert, at a conference (today) hosted by Sweet & Maxwell, the legal information provider, and JUSTICE, the UK's leading human rights organisation. In a joint speech with Anand Doobay of law firm Peters & Peters, Jones, a leading extradition lawyer, went on to say that with the appetite of the US for law enforcement outside its own borders increasing yearly, the chances of this happening is now a distinct reality.
"A director of a publicly-listed UK company could be extradited to the US to be tried for fraud if his company's allegedly inaccurate reports are published in a US newspaper to a solitary US shareholder," said Jones. "Many UK companies still believe that they need a US listing or a large US shareholder base before they are subject to US laws such as Sarbanes-Oxley but this is not the case." Any allegedly fraudulent scheme operated in the UK or within Europe in which only one e-mail or other electronic communication passes through an Internet Service Provider in the US is now indictable in the US, he said. "A UK national may now be extradited to the US where he is accused of conduct which took place mostly in the UK - even where the UK authorities have declined to prosecute him. There are currently two such cases before the courts," he said...
According to Jones, this state of affairs has arisen as a result of the US blurring the distinction between 'international' and 'trans-national' crimes. Many allegations of serious fraud are 'trans-national' crimes, in that they are concerned with conduct which took place in more than one jurisdiction. "These allegations of serious fraud are not, however, international crimes like hijacking or hostage taking. They have not been the subject of agreements which permit enlarged jurisdiction or call for common definition of crimes," he says. (emphasis added)
Recent changes to legislation relating to UK-US extradition mean that when demands for extradition come before the UK courts, the accused no longer has adequate opportunity to defend himself, said Jones. This is because in March, 2003, the UK and the US signed a new extradition treaty, which removed the requirement for the US to provide evidence when making an extradition request. "The allegation of fraud itself, however unfounded, is now sufficient for an extradition to be granted," he said. "Evidence of wrongdoing simply isn't required. This allows extradition claims by the US far in advance of anything we have seen so far."
Nor is it necessary to interfere with a person's right to privacy, home and family under Article 8 of the European Convention on Human Rights if he could be prosecuted in this country, said Jones. "This is an important issue on which the courts have yet to decide, "but they will decide and may rule that extradition to the US is unwarranted in some cases." |
We will continue to follow the case in the U.S. Please check back for updates.
Link to this entry
http://pokerpulse.com/legal/viewtopic.php?p=237#237
Last edited by legal on Sun Feb 10, 2008 5:07 pm; edited 8 times in total |
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legal
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| Posted: Fri Aug 18, 2006 1:14 pm Post subject: |
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The Economist
Magazine Subscription
Extradition and the NatWest Three
Unintended consequences
Reciprocity is not the issue;
safeguarding the right to a fair trial is
July 15/06
| Quote: | In fact, both ratification and reciprocity are red herrings. Even if the Senate were to yield to Britain's pleadings and ratify the treaty tomorrow, it would not affect either the relative burdens of evidence or the fate of the NatWest Three.
...That does not mean that any government - in this case Britain's - should outsource the job of determining whether a citizen should stand trial, especially in a foreign country where he is likely to be at a disadvantage and particularly when the alleged offence was committed at home. America's bill of rights protects its people from search and seizure without demonstration of probable cause; Britain should do no less. It is a fundamental duty of governments ancient and modern to provide their citizens with due process.
Sadly, the British government has already sold this pass, and not only to America. The treaty is part of a worldwide network of extradition arrangements, tightened to combat globalised crime and terrorism. In pursuit of these laudable goals, Britain has agreed, among other things, to extradition without prima facie evidence among 44 signatories of the Council of Europe's Convention on Extradition. America, with three commonwealth countries, is now included in the list.
This was to compound one mistake with another. It is a principle of British law that the prosecution has to establish a case or see it chucked out. By agreeing to extradite without proper evidence - to America or Azerbaijan - Britain has surrendered a safeguard on which its citizens have every right to rely. That is the real tragedy of the Natwest Three. (emphasis added) (From Leaders at p. 12) |
Link to this entry
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Last edited by legal on Thu Dec 06, 2007 9:16 pm; edited 1 time in total |
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legal
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| Posted: Mon Sep 04, 2006 2:17 pm Post subject: |
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Gulfnews.com
Rash of U.S. extradition bids likely
Attributed to the Evening Standard
Sept. 2/06
| Quote: | British company executives can expect a flurry of extradition activity by American law enforcers ahead of a review next month of the controversial treaty governing the hand-over of suspects between the two countries. Lawyers are warning that a UK Government overhaul of laws governing rendition proceedings is likely to spark a series of last-minute efforts to extradite Britons accused of wrongdoing in America.
The controversial current law, which makes it easier for American investigators to haul British suspects to the US to face trial than it is for British courts to bring American suspects to justice, has seen several UK executives taken for trial in the States.
...The House of Commons is next month due to debate changes already approved by the House of Lords that would force US prosecutors to argue an outline case in the UK courts before they can seize a British suspect. That obligation is not in place under the UK Extradition Act but it could be amended or even suspended by the autumn...While changes to current law may come too late for ...the NatWest Three, they would be timely for former Morgan Crucible boss Ian Norris. He will fight a move for extradition to the US to face price-fixing charges at a High Court hearing set for mid-October. Norris denies the charges but Graham will in any event argue that the extradition laws do not apply to him. |
Link to this entry
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legal
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| Posted: Wed Sep 06, 2006 12:31 pm Post subject: |
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More on the Extradition Act admendments vote in the British House of Commons in October, 2006 at the excellent website, www.notoextradition.co.uk. Here's a sample taken Sept. 6/06:
| Quote: | What is the Extradition Act 2003?
There is a 10-point fact sheet lower down, but in a nutshell: The Americans can ask for the extradition of a British citizen without providing evidence to a British court. In other words an accusation constitutes evidence. (emphasis added)
Can I help change things?
Yes. An ammendment has been tabled for this October to the Extradition Act 2003. But the ammendment requires the Labour rebels to vote with their conscience and not the whip. Download the lobby pack and try and convince any Labour MPs who may be in your area who are possible rebels to stand up for the rights of the majority of British citizens. The Conservative and Liberal parties have already decided to vote as part of party policy for the Extradition Act 2003 to be ammended. (emphasis added) |
We'll continue to monitor developments at this forum. Please check back for updates.
Link to this entry
http://pokerpulse.com/legal/viewtopic.php?p=269#269
Last edited by legal on Thu Dec 06, 2007 9:14 pm; edited 2 times in total |
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legal
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| Posted: Wed Jan 17, 2007 10:43 am Post subject: |
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BBC.com
MPs overturn extradition change
Oct. 24/06
| Quote: | MPs have overturned a change made by the Lords that would have blocked "fast-track" extraditions to the US. They also blocked a second change to the Police and Justice Bill calling for extradition only if a trial abroad was in the "interests of justice". Home Office Minister Joan Ryan had said the Lords' amendment would "wreck our ability" to bring fugitives to justice. The vote follows the controversy over the extradition of three UK bankers - the "NatWest Three" - on fraud charges. In the "fast-track" vote MPs backed the government by 320 to 263, while in the second vote, they voted 313 in support of the government and 272 against, including 14 Labour rebels. Peers had wanted the US removed from the list of approved countries from which prima facie evidence is not required before an extradition request is granted.
...The NatWest Three (see above) - David Bermingham, Gary Mulgrew and Giles Darby - were extradited under the treaty. It was designed to make it quicker and easier to deal with people suspected of cross-border offences such as terrorism and organised crime. The main elements were enshrined into British law through the Extradition Act, made law in 2003, while the US Senate ratified the treaty last month. US authorities need to outline the alleged offence, and provide "evidence or information that would justify the issue of a warrant for arrest in the UK". However, Britain must provide the US with evidence of "probable cause", a stronger standard than "reasonable suspicion", if it wishes to extradite someone. (emphasis added) |
More on extradition policies and procedures in Britain updated Dec. 1/06 at the Home Office.
More on how America distinguishes probable cause from reasonable suspicion under the Fourth Amendment in this Jan. 30/06 memo to the Senate Intelligence Committee from the Congressional Research Service. Here's an excerpt from the first page:
| Quote: | ...In over simplified terms, probable cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime
will be found,” Ornelas v. United States, 517 U.S. 690, 696 (1996); Illinois v. Gates, 462 U.S. 213, 238 (1983).
Under a similar gloss, reasonable suspicion is a standard, more than a hunch but considerably below preponderance of the evidence, which justifies an officer’s investigative stop of an individual upon the articulable and particularized belief that criminal activity is afoot, Ornelas v. United States, 517 U.S. at 695; Illinois v. Gates, 462 U.S. at 235.
And Fourth Amendment reasonableness is that point at which the government’s interest advanced by a particular search or seizure outweighs the loss of individual privacy or freedom of movement that attends the government’s action, Illinois v. Lidster, 540 U.S. 419, 427 (2004) (“in judging reasonableness, we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty”). |
Link to this entry
http://pokerpulse.com/legal/viewtopic.php?p=296#296
Last edited by legal on Thu Dec 06, 2007 9:13 pm; edited 3 times in total |
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legal
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| Posted: Thu Dec 06, 2007 8:27 pm Post subject: |
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BBC.com
NatWest Three face jail sentence
Nov. 29/07
| Quote: | Three British bankers extradited to the US on charges linked to Enron each look set to face a 37-month jail sentence. David Bermingham, 44, Gary Mulgrew, 45, and Giles Darby, 44, the so-called NatWest Three, admitted one wire fraud charge after a plea bargain. A Texas judge must approve the sentence agreed as part of the deal. The bankers had faced up to 35 years in prison.
They admitted conspiring with ex-Enron staff to defraud NatWest of $19m (£9m) and then split $7m between themselves. The men they conspired with - Andrew Fastow and Michael Kopper - are already in jail. According to the charges brought by prosecutors, the three men advised their former employer, NatWest, to sell part of a firm owned by Enron for less than it was worth. The three men then left the bank and bought a stake in the Enron-owned company, before selling it on at a higher price for a profit.
Mr Bermingham of Goring, Oxfordshire, Mr Mulgrew, a Glaswegian who now lives in Brighton, Sussex, and Mr Darby of Lower Wraxall, Wiltshire, will be sentenced on 22 February and hope to serve their jail term in the UK. They had previously protested their innocence to seven charges. "By changing their plea, Gary, Giles and David have fully accepted the responsibility for the significant lapse of judgement that led to the filing of these charges and which has caused them to be separated from their family in the UK for more than 17 months," lawyer Reid Figel said. As part of the plea bargain, they are to pay $7.35m to the Royal Bank of Scotland, which now owns NatWest. "Under the terms of the agreement... the three have agreed to immediately pay RBS $1.2m," RBS Group said in a statement. "Judgement in favour of RBS is also being entered against them at the High Court, London for an additional $6m. This will be in full and final satisfaction of RBS' claims against them."
... All three have been on bail since shortly after their extradition but were barred from returning to the UK before their trial. The guilty pleas showed "the extent of the fraud at Enron went well beyond US borders" said Kenneth Kaiser, assistant director of the FBI's criminal investigative division said.
*Wire fraud is a US legal concept that allows for higher penalties against any fraudulent activity, if the activity in question involves electronic communications of any sort. It is often used as a means for a federal prosecution of what would otherwise have been a matter for a state court. |
| Quote: | | *Note: Perhaps more revealingly, wire fraud allows the U.S. to seize what it considers to be the proceeds of crime - and keep them! - even if there's no conviction. |
See also Case highlights UK-US legal divide by Jon Silverman, Professor of Media and Criminal Justice, posted at BBC.com Nov. 30/07.
Link to this entry
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