In re Wallace
| Decision Date | 11 June 2021 |
| Docket Number | Case No. 8:21-mj-1246-JSS |
| Citation | 543 F.Supp.3d 1296 |
| Parties | In the MATTER OF the EXTRADITION OF Kendrick Taylor WALLACE |
| Court | U.S. District Court — Middle District of Florida |
John Cannizzaro, United States Attorney Office, Tampa, FL, for USA.
ORDER DENYING EXTRADITION
The United States of America, on behalf of the Kingdom of Norway, seeks the extradition of Kendrick Taylor Wallace, pursuant to The Extradition Treaty between United States of America and the Kingdom of Norway, U.S.-Nor., June 9, 1977, 31 U.S.T. 5619 ("Extradition Treaty"). After conducting an evidentiary hearing and reviewing the parties’ written submissions, the Court finds the evidence presented insufficient "to sustain the charge under the provisions of the proper treaty or convention." 18 U.S.C. § 3184. In accordance with Article 7 of the Extradition Treaty, extradition of Wallace will not be granted because the prosecution for the offenses for which extradition is sought has become barred by lapse of time according to the laws of the requested State, i.e. , the United States of America. Accordingly, extradition is denied, the Complaint (Doc. 1) is dismissed, and the Order of Detention (Doc. 12) revoked.
From 2004 until his retirement in the summer of 2008, Wallace served as both the Chief Legal Officer and a member of the corporate management team of Yara International ASA ("Yara"), one of the world's largest producers of mineral fertilizers. According to the documentation provided by Norway, while serving as Yara's Chief Legal Officer, Wallace assisted the company with entering into two separate agreements to pay bribes—parts of which were in fact paid—first, to a Libyan government official and second, to an Indian government official, each in connection with negotiations to establish joint venture agreements concerning fertilizer production with state-controlled companies in Libya and India, respectively. The bribes were orchestrated under the guise of consultancy agreements with the sons of the two foreign public officials.
In early 2007, while Yara was negotiating a joint venture with the state-owned Libyan oil company National Oil Company ("NOC"), Wallace entered into an agreement to pay $4.5 million to Mohamed Ghanem ("Ghanem"), son of Shukri Ghanem, Libya's then Minister of Petroleum and NOC's Chairman of the Board. In particular, Wallace, on behalf of Yara, and Ghanem, on behalf of a company called Saudi Logistics and Support ("SALT"), drafted a consultancy agreement, pursuant to which Yara would pay SALT an initial retainer of $1.5 million, followed by a $3 million "closing fee," purportedly for assistance with major construction and logistics projects in the Middle East. At the time, Ghanem was employed at a bank in Bahrain and had limited work or other relevant experience. Although the draft consultancy agreement was not ultimately signed, Wallace and Ghanem entered into a similar oral agreement. Pursuant to that oral agreement, on March 29, 2007, Yara transferred $1.5 million to a Swiss bank account held by Golden Petal Ltd., a company controlled by Ghanem. In the summer of 2008, Ghanem contacted Wallace asking for additional payments in line with their oral agreement; however, by that point Wallace had retired and no more money was paid to Ghanem or his company. No evidence suggests that Ghanem provided the services set forth in the draft consultancy agreement.
In February 2007, Ghanem informed Wallace that the Libyan government had approved the joint venture between NOC and Yara, and the companies signed a contract on April 25, 2007. In September 2007, Wallace met with Ghanem, who provided advice regarding various terms of the joint venture. Wallace shared that advice with others at Yara so that it could be used in subsequent negotiations with Ghanem's father. The joint venture framework was finalized in February 2009.
In April 2007, while Yara was negotiating a joint venture with the Indian-controlled company Krishak Bharati Cooperative Limited ("KBCL"), which was overseen by the Indian Ministry of Chemicals and Fertilizers, Wallace entered into an agreement to pay $3 million over a three-year period to Gurpreteesh Singh Maini ("Maini"), son of Jivtesh Singh Maini, India's then Additional Secretary and Financial Adviser in the Ministry of Chemicals and Fertilizers and also a member of KBCL's board. While Wallace initially offered to hire Maini—who had neither experience nor competence in the fertilizer industry—purportedly as Yara's agent in India for $250,000 plus additional amounts, including commissions for any sales Yara made with Maini's assistance, Wallace subsequently revised the one-off disbursement offer into the $3 million payment, to be made in installments of $1 million per year during the period of January 1, 2007, through December 31, 2009.
This consultancy agreement was finalized in June 2007. The first $1 million payment was made on October 16, 2007. At Maini's request, Yara transferred the money to an account in Hong Kong belonging to Krystal Holdings & Investments Limited, a company owned by a trust, the beneficiaries of which are Maini's wife and mother. No evidence suggests that Maini provided the services agreed to under the consultancy agreement, but rather that he assisted only with passing information between Yara and his father. The venture project with KBCL was ultimately terminated in the summer of 2008.
On January 15, 2014, Wallace and three other members of Yara's management team were indicted in Norway on two counts of active, aggravated corruption—one concerning the $4.5 million bribe in Libya and one concerning the $3 million bribe in India. They were tried before the Oslo District Court from January 5, 2015, to March 26, 2015. Wallace was present and testified in his own defense. Almost 7,000 documents were presented to the court (although not all were entered into evidence), and 33 lay witnesses and one expert witness testified. On July 7, 2015, the Oslo District Court entered its judgment finding Wallace guilty of both counts and sentenced him to a term of imprisonment of two years and six months (with credit for the three days he had spent detained in Norway). The court also convicted Wallace's codefendants (with the exception of acquitting one codefendant of one count).
Wallace and his codefendants appealed the judgment of the Oslo District Court to the Borgarting Court of Appeal. In so doing, pursuant to Norwegian law, Wallace and his codefendants received a new trial. The new trial lasted from August 23, 2016, to December 2, 2016, and Wallace was present and testified in his own defense. On January 17, 2017, the Borgarting Court of Appeal found Wallace guilty of both counts of the indictment and sentenced him to a seven-year term of imprisonment, though it acquitted Wallace's codefendants. Wallace appealed the ruling of the Borgarting Court of Appeal, alleging procedural errors at the trial and wrongful application of the law and challenging the length of his sentence. On September 15, 2017, the Supreme Court of Norway affirmed the judgment.
On March 17, 2021, the United States, in accordance with its obligations under the Extradition Treaty and pursuant to 18 U.S.C. § 3181 et seq., filed a complaint (Doc. 1) in this Middle District of Florida seeking a warrant for Wallace's arrest.
This Court issued an arrest warrant (Doc. 2), which was executed on April 12, 2021 (Doc. 6). Following his initial appearance, Wallace was detained pending extradition (Doc. 12). On April 20, the Court held an extradition hearing.
The power to extradite derives from the President's power to conduct foreign affairs. See generally U.S. Const. art. II, § 2, cl. 2. Extradition, therefore, is an executive, not a judicial, function. Martin v. Warden, Atlanta Pen , 993 F.2d 824, 828 (11th Cir. 1993). The judiciary serves an independent, but limited, review function delegated to it by the Executive and defined by statute. Id. After conducting an extradition hearing, the Court is tasked solely with determining whether the evidence presented is "sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b)." 18 U.S.C. § 3184. If the evidence is sufficient, the court "makes a finding of extraditability and certifies the case to the Secretary of State." Martin , 993 F.2d at 828. A court must make this certification where: (1) the judicial officer is authorized to conduct the extradition proceeding; (2) the court has jurisdiction over the fugitive; (3) the applicable treaty is in full force and effect; (4) there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought; and (5) the crimes for which surrender is requested are covered by the applicable treaty. See In re Extradition of Jose Batista Do Nascimento , No. 620CV2041ORL40GJK, 2021 WL 1192144, at *2 (M.D. Fla. Jan. 25, 2021) ; In re Extradition of Shaw , No. 14-cv-81475, 2015 WL 3442022, at *5 (S.D. Fla. May 28, 2015) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) ).
The extradition statute authorizes proceedings to be conducted by "any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State." 18 U.S.C. § 3184. "A United States magistrate judge in the Middle District [of Florida] can exercise the maximum authority and perform any duty permitted by the Constitution and other laws of the United States." L.R. 1.02(a), M.D. Fla.; see In re Authority of U.S. Magistrate Judges in the Middle District of Florida, No. 8:20-mc-100-T-23, Doc. 3 (M.D. Fla. Oct. 29, 2020) (illustrating...
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