In re Sridej

• Decision Date: 06 January 2023
• Docket Number: 2:22-mj-00792-EJY
• Parties: IN THE MATTER OF THE EXTRADITION OF SUMONTINEE SRIDEJ aka SUMONTHINEE WONGKAEW aka SUMONTINEE HUGHES.
• Court: U.S. District Court — District of Nevada

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IN THE MATTER OF THE EXTRADITION OF SUMONTINEE SRIDEJ aka SUMONTHINEE WONGKAEW aka SUMONTINEE HUGHES.

No. 2:22-mj-00792-EJY

United States District Court, D. Nevada

January 6, 2023

ORDER

ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE

Pending before the Court is the request by the United States of America (the “government”) for an order certifying the extradition of Sumontinee Sridej aka Sumontinee Wongkaew, aka Sumontinee Hughes (“Ms Sridej”) to the Kingdom of Thailand (“Thailand”). The matter was addressed at a hearing on November 30, 2022, as well as through a pre-hearing brief filed by the government and post-hearing briefs filed by Ms. Sridej and the government. The Court has considered the certified and authenticated documents submitted by Thailand through diplomatic channels including but not limited to: (1) the Request for the Extradition of Ms. Sridej submitted by Jumpon Phansumrit (“Jumpon”), Director General of the International Affairs Department, through designation by the Attorney General for the Central Authority of Thailand; (2) the Affidavit of Public Prosecutor Noppanut Julniti (“Julniti” or the “Julniti Affidavit” or “Julniti Aff.”); and (3) the Affidavit of Nathanan Thanthada (the “Thanthada Affidavit”). The Court also considered the Declaration of Tom Heinemann (“Heinemann”), Attorney Advisor in the Office of the Legal Adviser, United States Department of State and the Declaration of Jamie Briggs (“Briggs”), Attorney Advisor for the United States Department of State in the Office of the Legal Adviser, Office of Law Enforcement and Intelligence, together with arguments and pleadings submitted by the parties. The Court finds as follows.

I. Brief Summary of Relevant Facts

There is no dispute that Ms. Sridej is a citizen of Thailand who is charged with 36 counts of fraud under the Thai Penal Code. Gov't Ex. 2 (Request for Extradition by Jumpon) at 1. Ms. Sridej was the Assistant Director for Sales and Marketing for The Value Systems Company, Ltd. (“VSC” or the “Company”). VSC is an electronics wholesale company selling electronic products including smart phones and tablets. Id. at 2. In January 2015, a VSC customer (Suchin Panich Limited Partnership, referred to herein as the “Partnership”) informed the Company that it received “an account receivable confirmation letter” indicating the Partnership “purchased 533 smartphones” from VSC, which the Partnership had not purchased. Id. Jumpon explains in the Request for Extradition that prior to the Partnership receiving the accounts receivable letter, Ms. Sridej called the Partnership to warn the customer it would receive the letter, but that the letter was a mistake. Id. One day after these events, a VSC sales associate told the Company that an invoice sent to another customer, True Max Co., Ltd, had not been paid, but, importantly, True Max had not purchased any of the products listed on the invoice. Id. The sales associate who issued the invoice to True Max was under Ms. Sridej's supervision. Id.

Subsequently, VSC conducted an internal audit and learned that there were many invoices issued at Ms. Sridej's direction to customers who had not paid such invoices, the products on the invoices left the Company's inventory, and all the products at issue were delivered to non-customer and co-conspirator Pitak Punyasuk (“Pitak”). Id. See also Gov't Ex. 2 (Julniti Aff.) at 3. Pitak ran a retail electronics shop and told Thai investigators that Mrs. Pornpimon Sawaspadungkij (“Pornpimon”), who is another co-conspirator, arranged for these products to be delivered to Pitak at below wholesale prices. Id. VSC checked bank accounts and found there were money transfers and financial transactions between Ms. Sridej and Pornpimon. A sample of the money transfers are found at pages 4 and 5 of the Julniti Affidavit.

The Thai Public Prosecutor alleges that between approximately August of 2013 and January 2015, Ms. Sridej participated in the theft of electronic products worth over 123 million baht, which equates to approximately $4 million U.S. dollars. ECF Nos. 1 at 4-8, 19 at 3; see also Gov't Ex. 2 (Julniti Aff.) at 6-46. Ultimately, Ms. Sridej, along with co-conspirators Pitak and Pornpimon, who have been convicted, was charged with 36 counts of committing fraud. Gov't Ex. 2 (Request for Extradition) at 1, (Julniti Aff.) at 47.

There is no dispute that on January 5, 2015, Ms. Sridej landed in the U.S. and has remained in the country since that time. The government's brief states that the Thai government “waited to start extradition proceeding against ... Ms. Sridej until this year[] despite knowing where ... [she] was.” ECF No. 29 at 2. On February 3, 2015, a warrant for Ms. Sridej's arrest was issued by the Southern Bangkok Criminal Court. ECF No. 1 at 36, 42. On October 7, 2022, a sealed complaint and arrest warrant was issued against Ms. Sridej for fraud. ECF No. 4. Ms. Sridej was arrested on October 11, 2022, and subsequently detained pending extradition certification.

II. Discussion

Extradition is primarily an executive branch responsibility that includes a limited defined role for the judicial officer from whom certification is sought. Prasoprat v. Benov, 421 F.3d 1009, 1014 (9th Cir. 2005). Under 18 U.S.C. § 3184, the judicial officer is authorized to certify to the Secretary of State that evidence submitted by the country seeking extradition is “sufficient to sustain the charge.” If the judicial officer certifies the extradition, the Secretary of State decides whether the alleged fugitive is properly surrendered to the requesting country. Id.; see also 18 U.S.C. § 3186, Santos v. Thomas, 830 F.3d 987, 991 (9th Cir. 2016) (en banc).

When considering whether to certify the extradition of Ms. Sridej to the Secretary of State, the Court must find all of the following are true: (1) the exercise of jurisdiction over Ms. Sridej is proper; (2) the Court is authorized to conduct the extradition proceedings; (3) the applicable treaty is in full force and effect; (4) the crime with which Ms. Sridej is charged is covered by the treaty; and (5) sufficient evidence exists to support a finding of probable cause as to each charge for which extradition is sought. 18 U.S.C. § 3184; Santos, 830 F.3d at 991. As the Magistrate Judge to whom this is referred, the undersigned has no discretionary decision to make. Prasoprat, 421 F.3d at 1012 (internal citation omitted). If the elements of extradition are met, certification of extradition is required. Id. (internal citation omitted). Here, Ms. Sridej does not contest jurisdiction or this Court's authority to conduct the extradition proceedings. ECF No. 32 at 37. Thus, the Court starts its analysis with whether the treaty at issue is in full force and effect.

A. The Treaty Between the United States and Thailand is Valid and In Force.

The Court reviewed the Post Hearing Brief submitted on behalf of Ms. Sridej along with the exhibits attached thereto. In sum, Ms. Sridej contends that because Thailand has suffered political upheaval that includes abolishment and replacement of its constitution subsequent to the May 17, 1991 date on which the Extradition Treaty went into full force and effect (see ECF No. 32 at 32), the Treaty was nullified. ECF No. 29 at 8. However, the Court has before it declarations from two attorney advisors to the U.S. Secretary of State. Albeit with a corrected typographical error, the Declaration of Tom Heinemann states: “The relevant and applicable treaty provisions in full force and effect between the United State and ... [Thailand] are found in the Treaty Between the Government of the United States of America and the Government of the Kingdom of Thailand Relating to Extradition ..” Gov't Ex. 3 ¶ 2. The Declaration of Jamie Briggs states: “The Extradition Treaty between the United States of American and the Kingdom of Thailand that was signed at Washington, on December 14, 1983, and entered into force on May 17, 1991 . is currently in force.” ECF No. 33-1 ¶ 2. Briggs' Declaration goes on to state: “I have appended to this declaration the pertinent extract from the official Department of State publications Treaties in Force, which includes those treaties and other international agreements entered into by the United States, which, as of January 1, 2020, had not expired by their own terms, been denounced by the parties, replaced or superseded by other agreements, or otherwise definitely terminated.” Id. After explaining that the U.S. is not a party to the Vienna Convention on the Law of Treaties, Briggs states the U.S. does describe “the Convention as providing an authoritative guide to international treaty law and practice, including generally on the validity and termination of treaties.” Id. ¶ 4. Briggs further states the provisions in the Treaty that may effect a termination are inapplicable to the Treaty between the U.S. and Thailand Relating to Extradition and neither party to the Extradition Treaty has looked to such provisions to terminate the Treaty. Id. ¶ 5. “Moreover, nothing in the Convention or international law more generally provides that treaties terminate automatically upon changes of government, the outbreak of hostilities, or coups or internal unrest.” Id. In sum, as explained by Briggs, “[t]he Extradition Treaty remains legally binding” on the U.S. and Thailand, which is further demonstrated by the fact that the U.S. extradited a fugitive to Thailand in 2017, and Thailand extradited two fugitives to the U.S. in 2022. Id. ¶¶ 7-8.

A “long judicial tradition [supports the] general judicial policy of deference to the executive in the area of foreign relations.” United States v Fernandez-Pertierra, 523 F.Supp. 1135, 1141-42 (S.D. Fla. 1981) (internal quote marks omitted) citing Dames &...