Ross v. U.S. Marshal for Eastern Dist. of Oklahoma, 98-7083

• Decision Date: 17 February 1999
• Docket Number: No. 98-7083,98-7083
• Citation: 168 F.3d 1190
• Parties: 1999 CJ C.A.R. 1858 George Finbar ROSS, Petitioner-Appellant, v. UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF OKLAHOMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1190

168 F.3d 1190

1999 CJ C.A.R. 1858

George Finbar ROSS, Petitioner-Appellant, v. UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF OKLAHOMA Respondent-Appellee.

No. 98-7083.

United States Court of Appeals Tenth Circuit.

Feb. 17, 1999.

Neal A. Goldfarb (Thomas Earl Patton of Tighe, Patton, Tabackman & Babbin, L.L.C., Washington, D.C.; Mark Green, Muskogee, Oklahoma, with him on the briefs), of Tighe, Patton, Tabackman & Babbin, L.L.C., Washington, D.C., for Petitioner-Appellant.

Sean Connelly (Bruce Green, United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma; Sara Criscitelly, Department of Justice, Washington, D.C., on the brief), Assistant United States Attorney, Denver, Colorado, for Respondent-Appellee.

Before BRORBY, BARRETT and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

The Government of Northern Ireland, United Kingdom issued warrants for the arrest of Appellant, George Finbar Ross, for forty-one charged offenses stemming from Mr. Ross' alleged involvement in a fraudulent investment scheme. The United States subsequently arrested Mr. Ross pursuant to an extradition treaty existing between the United States and the United Kingdom. After a magistrate judge certified his extradition, Mr. Ross filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his extradition. The district court denied the petition and Mr. Ross filed this appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 2253 and we affirm.

I. Background

In 1976, Mr. Ross, a then citizen of the Republic of Ireland, established an offshore investment company in Gibraltar called International Investment Limited ("International Investment"). Mr. Ross was beneficial owner of International Investment and ran the day-to-day operations of International Investment's Dublin office. Over a several-year period, International Investment solicited millions of dollars from investors, primarily in Northern Ireland. International Investment purported to invest the depositors' money in several funds and promised high rates of tax-free interest. However, investigators from Northern Ireland concluded International Investment actually used depositors' funds to make unsecured loans to Mr. Ross and to related companies set up by Mr. Ross. Among other things, Mr. Ross used International Investment funds to build a home and purchase artwork.

An International Investment auditor first expressed concern over International Investment's financial viability around 1980 or 1981. However, limited access to records and unprofessionally kept books thwarted various attempts to perform a full audit. Gibraltar banking officials also had little success in obtaining audited accounts from either International Investment or Mr. Ross, as required by 1982 changes to Gibraltar banking regulations. A former International Investment employee estimated that by 1982, International Investment was using depositors' investments to pay interest to previous investors. Liquidators would later conclude International Investment was insolvent by mid-1982.

In late October 1983, Mr. Ross moved his residence from the Republic of Ireland to the United States. Mr. Ross visited Northern Ireland in December 1983 to conduct a seminar for International Investment brokers and depositors. At that seminar, Mr. Ross encouraged depositors to make further investments and emphasized International Investment's financial strength even though International Investment was in fact insolvent and had been for approximately eighteen months. In February 1984, Mr. Ross again returned to Northern Ireland and reassured a group of concerned brokers that while International Investment had a cash flow problem, the company's investments were sound. International Investment went into liquidation on June 14, 1984. Although International Investment owed approximately $7,750,000 to depositors, liquidators were unable to realize any International Investment assets for distribution to them.

The Royal Ulster Constabulary commenced an investigation into International Investment's affairs in 1985, and on June 28, 1996 and February 27, 1997, Northern Ireland officials issued warrants for Mr. Ross' arrest. The warrants charged Mr. Ross with fraudulent conduct occurring between December 1983 and March 1984. United States officials arrested Mr. Ross on March 4, 1998, and Northern Ireland immediately requested extradition pursuant to the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, Oct. 21, 1976, U.S.-U.K., 28 U.S.T. 227 ("Extradition Treaty"). A magistrate certified Mr. Ross' extradition and ordered him held in custody pending surrender to Northern Ireland. Mr. Ross filed a petition for writ of habeas corpus, arguing his confinement violates the Extradition Treaty. After reviewing the magistrate's findings and conclusions, the district court denied Mr. Ross' petition.

II. Extradition

The scope of review of a magistrate judge's extradition order under a treaty with a foreign country is limited to "determining whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal construction, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Peters v. Egnor, 888 F.2d 713, 716 (10th Cir.1989) (quotation marks and citation omitted). In this case, Mr. Ross does not contest the magistrate's jurisdiction nor challenge the evidence of his guilt. Rather, he argues the offenses charged are not within the treaty because: (1) the charges are time-barred under the relevant statute of limitations, and (2) the warrants charging Mr. Ross with "false accounting" do not meet the dual criminality requirement.

1. Statute of Limitations

Article V of the Extradition Treaty provides extradition shall not be granted if the prosecution has become time-barred according to the law of either the requesting or requested country. Extradition Treaty, 28 U.S.T. at 230. No Northern Ireland statute of limitations applies to Mr. Ross' charges. The applicable United States law provides for a five-year statute of limitations. 18 U.S.C. § 3282. The statute may be tolled, however, if the accused is a fugitive "fleeing from justice." 18 U.S.C. § 3290.

In this case, Northern Ireland seeks extradition based on charges brought approximately twelve years after Mr. Ross committed the alleged offenses--well beyond the statutory limit. However, the district court concluded the statute tolled because Mr. Ross was fleeing from justice when he moved to the United States in October 1983. In relevant part, the court concluded (1) in order to toll the statute, the government had to prove by a preponderance of the evidence that Mr. Ross had an intent to avoid prosecution or arrest, and (2) the record supported the magistrate's finding that Mr. Ross knew he was likely to be charged with a crime when he moved to the United States and therefore acted with the intent to avoid an anticipated prosecution. Mr. Ross argues the evidence does not support this conclusion because at the time he moved, North Ireland officials had not commenced an investigation nor charged him with any crime. Moreover, Mr. Ross argues he could not have been trying to avoid prosecution for the charges which underlie the extradition request because conduct he is charged with occurred after he moved. We review the district court's interpretation of the tolling statute de novo; United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.), cert. denied, 501 U.S. 1207, 111 S.Ct. 2803, 115 L.Ed.2d 976 (1991), and the court's determination Mr. Ross was fleeing from justice for clear error. United States v. Greever, 134 F.3d 777, 781 (6th Cir.1998); United States v. Marshall, 856 F.2d 896, 900-01 (7th Cir.1988).

As a preliminary matter, we must first determine what constitutes "fleeing from justice" under the statute. The circuit courts are currently split on the issue. A small minority of circuits have held mere absence from the jurisdiction in which the crime was committed is enough to toll the statute. In re Assarsson, 687 F.2d 1157, 1162 (8th Cir.1982); McGowen v. United States, 105 F.2d 791, 792 (D.C.Cir.1939). The district court, on the other hand, adopted the majority view, which requires the prosecution to prove the accused had an intent to avoid arrest or prosecution. See Greever, 134 F.3d at 780; United States v. Rivera-Ventura, 72 F.3d 277, 283 (2d Cir.1995); United States v. Fonseca-Machado, 53 F.3d 1242, 1244 (11th Cir.), cert. denied, 516 U.S. 925, 116 S.Ct. 326, 133 L.Ed.2d 227 (1995); United States v. Marshall, 856 F.2d 896, 900 (7th Cir.1988); United States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982); Donnell v. United States, 229 F.2d 560, 565 (5th Cir.1956); Brouse v. United States, 68 F.2d 294, 295 (1st Cir.1933). The Supreme Court has not squarely addressed the issue. However, in considering the predecessor to 18 U.S.C. § 3290, the Court in Streep v. United States, 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365 (1895) implicitly recognized intent as an element of fleeing from justice, id. at 133, 16 S.Ct. 244 ("In order to constitute a fleeing from justice ... [i]t is sufficient that there is a flight with the intention of avoiding being prosecuted.") Consistent with Streep, we conclude "fleeing from justice" requires the government to prove, by a preponderance of the evidence, the accused acted with the intent to avoid arrest or prosecution. ¹

Having thus determined the appropriate standard of proof, we must decide whether the district court committed clear error in finding Mr. Ross had the requisite intent to flee arrest or prosecution when he moved to the United States. We believe the record supports the district court's conclusion. By October 1983,...