U.S. v. Merit, 91-10049

• Decision Date: 23 April 1992
• Docket Number: No. 91-10049,91-10049
• Citation: 962 F.2d 917
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam MERIT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 917

962 F.2d 917

UNITED STATES of America, Plaintiff-Appellee, v. Sam MERIT, Defendant-Appellant.

No. 91-10049.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 11, 1992.

Decided April 23, 1992.

Atmore L. Baggot, Phoenix, Ariz., for defendant-appellant.

Sara Criscitelli, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona

Before: CHOY, FARRIS and RYMER, Circuit Judges.

RYMER, Circuit Judge:

In 1987, Sam Merit and five co-defendants were indicted on one count of wire fraud (18 U.S.C. § 1343), ten counts of interstate transportation of a victim of fraud (18 U.S.C. § 2314), one count of fraud in the sale of securities (15 U.S.C. § 77q), one count of sale of unregistered securities (15 U.S.C. § 77e), and one count of conspiracy to commit offenses against the United States (18 U.S.C. § 371), in connection with a fraudulent gold-mining operation in Arizona. Merit appeals his convictions on count 1 (wire fraud) and count 14 (conspiracy), claiming that his 1988 extradition from the Republic of South Africa was unlawfully obtained.

In granting the United States' extradition request, the Republic of South Africa failed to issue a formal warrant of extradition. Because a warrant never issued, Merit argues that 18 U.S.C. § 3192 barred the exercise of in personam jurisdiction by the district court. Merit also contends that the district court lacked jurisdiction because the acts alleged in the indictment do not constitute crimes in both the United States and South Africa as required by the principle of dual criminality, embodied in this country's treaty of extradition with the (then) Union of South Africa. Treaty of Extradition, Dec. 18, 1947, U.S.-S.Afr., 2 U.S.T. 884. Finally, Merit contends that the district court, in violation of the principle of specialty also embodied in the 1947 treaty, ignored limitations placed by the South African Supreme Court upon the extraditable offenses. Because Merit's extradition was obtained with the full cooperation of the South African government and violated neither the principle of dual criminality nor the principle of specialty, we affirm his convictions.

I

The defendants in this case of "penny stock" fraud were shareholders and directors of Tracon International, Inc., a Nevada corporation with no assets and offices in Phoenix, Arizona. Merit was the controlling shareholder. In July of 1983, Tracon issued a press release announcing the acquisition of oil and gas leases in Illinois and plans to begin mining a newly-acquired gold mine in Arizona. Shortly thereafter, Tracon began trading its stock in the over-the-counter market.

The defendants were charged in the District of Arizona with a scheme to defraud investors through the sale of Tracon common stock. In particular, the indictment charged that the defendants operated Tracon as a sham corporation, leased mining claims and mining equipment in Arizona to give the false appearance of a successful gold-mining operation, failed to register Tracon stock, and fraudulently induced potential investors to travel to Arizona and invest in Tracon.

After this and a similar Texas indictment were returned against him, Merit fled to South Africa. At the request of the United States government, a South African magistrate committed Merit to prison to await the decision of the South African Minister of Justice on the request for Merit's extradition. The Supreme Court of South Africa subsequently upheld extradition for the charges in both the Arizona and Texas indictments. In re Sam Merit & Gov't of U.S.A., No. A.183/88, slip op. at 21 (S.Afr.Sup.Ct. March 3, 1988).

Although Merit was indicted in the District of Arizona on all fourteen counts, he was found extraditable by the Supreme Court of South Africa only on counts 1 (wire fraud) and 14 (conspiracy). Id. ("If the [U.S. government's] deponents ... are to be believed, as they must be at this stage, then even with [Merit's] denial a prima facie case at least remains proved against [Merit] on ... counts 1 and 14 of the indictment handed down by the Arizona Grand Jury...."). The South African Ministry of Justice subsequently surrendered Merit to the United States authorities without issuing a formal warrant of extradition. Upon his return to the United States, Merit was convicted solely on the two counts specified by the South African Supreme Court. ¹

Merit now challenges his extradition, claiming that the failure to issue a warrant rendered his extradition invalid and that the extradition otherwise violated the principles of dual criminality and specialty observed by the U.S.-South Africa extradition treaty. We review de novo questions regarding interpretation of, and jurisdiction under, the treaty, including compliance with dual criminality and specialty requirements. See United States v. Verdugo-Urquidez, 939 F.2d 1341, 1344 (9th Cir.1991) (petition for certiorari filed Oct. 21, 1991); Theron v. United States Marshal, 832 F.2d 492, 496 (9th Cir.1987), cert. denied, 486 U.S. 1059, 108 S.Ct. 2830, 100 L.Ed.2d 930 (1988); United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988).

II

Merit relies on the fact that South Africa chose to extradite him without issuing a formal warrant of extradition. Although the 1947 extradition treaty does not require a formal warrant, Merit claims that his extradition was nonetheless invalid without one. First, Merit argues that the United States interfered with the South African executive's prerogative to extradite. Citing several cases for the proposition that the final decision to extradite--both in the United States and South Africa--lies with the executive, Merit claims that the decision of the South African Minister of Justice to issue a warrant "never occurred probably because our government prematurely caused the removal of appellant from his detention in Johannesburg." Yet there is no evidence which indicates that the United States extradited Merit without the permission of the Republic. Moreover, the following statements made by the government in its "Report Regarding Extradition of Defendant Merit" are uncontradicted:

Under Article 7 of the [1947 treaty,] the requesting country can try an extraditee on those charges found extraditable by the asylum country.... Because Merit was extradited pursuant to the Treaty, the terms of Article 7 are applicable to him in this matter. When Merit was extradited, however, the government of South Africa did not provide a surrender warrant or other written communication setting forth the charges on which Merit had been extradited.

Because of this lack of information, the United States sought clarification as to such charges. In response, the South African government notified the United States Embassy in June 1988 that the charges on which Merit is triable are those mentioned in the judgment rendered by the South African [Supreme C]ourt on Merit's extradition appeal.

Our reading of that judgment ... found that the South African [Supreme C]ourt was specific as to some counts, namely, Counts 1 and 14 of the Indictment in this case, ... but was ambiguous about other counts. Thus we sought further clarification from the South African authorities.

The United States Embassy in South Africa advised us by memorandum ... dated September 15, 1988, that the South African Department [sic] of Justice in late August confirmed that the charges listed in the preceding paragraph are the charges for which Merit was extradited and therefore on which he is triable.

Given this record, there is no basis for concluding that the Republic was not consulted about the scope and legality of Merit's extradition.

Merit next points to 18 U.S.C. § 3192, which he claims requires the issuance of a formal warrant by the asylum country as a jurisdictional prerequisite. 18 U.S.C. § 3192 reads:

Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any offense of which he is duly accused, the President shall have the power to take all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such offenses....

Although the statute refers to a warrant of extradition, it does not require one as a jurisdictional prerequisite. Nor does Merit cite any authority indicating that the absence of a warrant divests a court of jurisdiction over an extraditee. Extradition arrangements serve primarily to protect the interests of the requesting and asylum states, not the interests of the extraditee. ² Therefore, even if the 1947 treaty required the asylum state to issue a formal warrant, the United States and South Africa were free to agree to extradite Merit "without invoking the formal extradition process," Verdugo-Urquidez, 939 F.2d at 1352, and without a warrant.

In Verdugo-Urquidez, we noted that extradition

treaties are in the nature of contracts between nations. Just as a private party may waive a term in a contract that is in the contract for his benefit, so a signatory to an extradition treaty may waive the requirement that the other signatory follow the procedures set forth in the treaty. Thus, the fact that there is an extradition treaty between two nations is no bar to one of those nations voluntarily surrendering an individual to the other without invocation of the treaty.

Id. If the United States and South Africa were free to disregard a treaty provision requiring a warrant had the provision existed, there is no reason why the two countries could not agree to extradite Merit without a warrant in...