U.S. v. Anderson
| Decision Date | 28 December 2006 |
| Docket Number | No. 05-30211.,05-30211. |
| Citation | 472 F.3d 662 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keith E. ANDERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Darla Mondou, Marana, AZ, for the defendant-appellant.
Eileen J. O'Connor, Alan Hechtkopf, Karen M. Quesnel, and Gregory Victor Davis, Department of Justice, Tax Division, Washington, D.C., and John McKay, United States Attorney, of counsel, for the plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief District Judge, Presiding. D.C. No. CR-02-00423-001-JCC.
Before D.W. NELSON, THOMPSON, and PAEZ, Circuit Judges.
Defendant-Appellant Keith E. Anderson appeals his convictions and sentence for conspiracy to defraud the United States, conspiracy to commit mail and wire fraud, aiding and assisting the filing of materially false income tax returns, mail fraud, wire fraud, conspiracy to commit money laundering, and international money laundering. Anderson received a sentence of twenty years in prison, three years of supervised release, and monetary penalties.
Anderson contends that his convictions and sentence should be reversed because his appeal of the annulment of his Costa Rican citizenship was pending in Costa Rica when he was extradited to the United States to stand trial for the above-listed offenses. Therefore, he asserts the district court lacked personal jurisdiction over him.
Anderson also argues for the first time in his reply brief filed in this Court that his convictions for money laundering and conspiracy to commit money laundering should be vacated under the doctrines of dual criminality and specialty because the Costa Rican court specifically held that the money laundering offenses did not satisfy the terms of the extradition treaty and refused to grant the United States' extradition request for those charges.1
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm all of Anderson's convictions except his convictions for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and international money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(2)(A). We remand this case to the district court for consideration of Anderson's dual criminality and specialty defenses to the money laundering charges (counts 98-104), and for resentencing as may be appropriate.
In 1996, Anderson and his brother, Lowell Wayne Anderson, formed an organization called Anderson's Ark and Associates ("AAA") to assist United States taxpayers in avoiding income taxes. Anderson then lived in the State of Washington. In 1999, he moved to Costa Rica and established AAA's Costa Rican headquarters. On October 9, 2001, Anderson petitioned for naturalized Costa Rican citizenship. Just over a month later, the United States government filed a criminal complaint against Anderson in the Western District of Washington, charging him with conspiracy to defraud the United States under 18 U.S.C. § 371 in connection with his AAA activities. The government also obtained a warrant for Anderson's arrest.
In early February 2002, Anderson was detained in Costa Rica at the United States' behest. The United States filed a formal request for extradition with the Costa Rican government in March 2002. Then, on July 3, 2002, Anderson's Costa Rican citizenship petition was granted; three weeks later, a Costa Rican criminal trial court granted the United States' extradition request. Shortly thereafter, the Costa Rican government annulled Anderson's Costa Rican citizenship.
Anderson filed appeals in Costa Rica, challenging the annulment of his Costa Rican citizenship and the decision of the Costa Rican trial court to grant extradition. On December 4, 2002, before either of these appeals had been decided, Anderson was transported from Costa Rica to Miami by United States government agents.
An eighty-six-count indictment was filed against Anderson in the Western District of Washington on December 10, 2002, and he was transferred to and arraigned in Seattle shortly thereafter. A second superseding indictment was filed on August 11, 2004, adding sixteen counts to the original indictment.
After a thirty-eight-day jury trial in which Anderson represented himself, he was convicted of one count of conspiracy to defraud the United States under 18 U.S.C § 371, one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371, ten counts of aiding and assisting the filing of materially false income tax returns in violation of 26 U.S.C. § 7206(2), forty-four counts of aiding and/or assisting the preparation of fraudulent tax returns in violation of 26 U.S.C. § 7206(2), eighteen counts of mail fraud in violation of 18 U.S.C. §§ 2 and 1341, eleven counts of wire fraud in violation of 18 U.S.C. §§ 2 and 1342, one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), and six counts of international money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(2)(A). Anderson was sentenced to twenty years in prison, three years of supervised release, $36,525,860 restitution,2 and a $9,200 penalty assessment. This appeal followed.
Jurisdictional issues are reviewed de novo, see United States v. Phillips, 367 F.3d 846, 854 (9th Cir.2004), as are challenges to personal jurisdiction based on the alleged violation of an extradition treaty between the United States and another country. United States v. Matta-Ballesteros, 71 F.3d 754, 762 (9th Cir.1995). Interpretation of an extradition treaty, including whether the doctrines of dual criminality and specialty are satisfied, is also reviewed de novo. United States v. Khan, 993 F.2d 1368, 1372 (9th Cir.1993) (citing United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.1987)).
The general rule under the Ker/Frisbie line of cases is that the means used to bring a criminal defendant before a court do not deprive that court of personal jurisdiction over the defendant. United States v. Alvarez-Machain, 504 U.S. 655, 661-62, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (citing and quoting Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952)). Nevertheless, the Ker/Frisbie doctrine does not apply, and a court is deprived of jurisdiction over an extradited defendant, if either: (1) the transfer of the defendant violated the applicable extradition treaty, or (2) the United States government engaged in "misconduct `of the most shocking and outrageous kind'" to obtain his presence. Matta-Ballesteros, 71 F.3d at 762-64 (quoting United States v. Valot, 625 F.2d 308, 310 (9th Cir.1980)).
Our analysis of the challenge to personal jurisdiction begins with the express terms of the applicable extradition treaty. See Alvarez-Machain, 504 U.S. at 663, 112 S.Ct. 2188. The United States-Costa Rica Extradition Treaty does not oblige either country to refrain from granting extradition if an appeal regarding the defendant's citizenship status is pending. See Extradition Treaty, U.S.-Costa Rica, Dec. 4, 1982, S. Treaty Doc. No. 98-17 (1991). Instead, the treaty provides:
The Requested State shall undertake all available legal measures to suspend proceedings for the naturalization of the person sought until a decision is made on the request for extradition and, if that request is granted, until that person is surrendered.
Thus, under the treaty, Costa Rica was required to suspend its decision on Anderson's request for naturalized citizenship until after it surrendered Anderson to the United States. The United States' extradition request was filed in March 2002. The Costa Rican trial court granted extradition on July 24, 2002, and Anderson was removed to Florida on December 4, 2002. During the period between March and December 2002, naturalization proceedings relating to Anderson should have been suspended. Instead, Anderson was granted Costa Rican citizenship on July 3, 2002. That grant of citizenship was a violation of the extradition treaty. Costa Rica's later annulment of that improper grant of citizenship and suspension of any further naturalization proceedings, including appeals, was therefore proper. In addition, no terms of the treaty were violated by Anderson's removal to the United States while his citizenship appeal was pending.
No provision of the United States-Costa Rica Extradition Treaty requires that extradition be postponed until the highest court of the country from which extradition is requested has ruled on that request. Article twelve provides that "[a] person detained pursuant to the Treaty shall not be released until the extradition request has been finally decided." Id. art. 12. "Surrender," however, is the term used in the treaty to describe the physical transfer of a person whose extradition has been granted, as opposed to simple "release" from detention. Compare id. art. 13, ¶ 3 (), with id. art. 12 (quoted above).
We conclude that Anderson's removal from Costa Rica to Florida on December 4, 2002, complied with the United States-Costa Rica Extradition Treaty.
Anderson argues that even if his removal did not violate the terms of the United States-Costa Rica Extradition Treaty, the United States government's conduct in removing him during the pendency of his extradition and citizenship appeals was outrageous, and the district court therefore lacked personal jurisdiction over him. The allegedly outrageous conduct Anderson points to includes the timing of his removal—"in the dead of the...
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