U.S. v. Sensi

• Decision Date: 11 July 1989
• Docket Number: No. 88-3100,88-3100
• Citation: 879 F.2d 888,279 U.S.App.D.C. 42
• Parties: UNITED STATES of America, Appellee, v. Robert M. SENSI, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 888

879 F.2d 888

279 U.S.App.D.C. 42

UNITED STATES of America, Appellee, v. Robert M. SENSI, Appellant.

No. 88-3100.

United States Court of Appeals District of Columbia Circuit.

Argued May 4, 1989.

Decided July 11, 1989.

Appeal from the United States District Court for the District of Columbia (Criminal No. 86-00318-01).

Daniel J. McGuan (appointed by this court), for appellant.

CeLillianne Green, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and RUTH BADER GINSBURG and BUCKLEY, Circuit Judges.

Opinion for the court filed by Chief Judge WALD.

WALD, Chief Judge:

Appellant Robert M. Sensi challenges his criminal conviction in the United States District Court for the District of Columbia. Sensi, who was extradited to the United States from the United Kingdom prior to his trial, advances several arguments on appeal. First, he argues that he was indicted on charges other than those for which he was extradited, and that consequently his indictment was invalid under the terms of the United States-United Kingdom Extradition Treaty (the "Extradition Treaty" or the "Treaty") and should have have been dismissed by the district court. Second, Sensi contends that the district court erred in denying his motion for a judgment of acquittal. Third, he maintains that the district court erred in denying his motion for a new trial because the unavailability of certain witnesses and evidence impaired his constitutional rights of due process, compulsory process, and confrontation. Fourth, he argues that the prosecutor made a statement during his summation that confused the jury as to the burden of proof. Fifth, he asserts that the district court erred in denying his motion for a new trial based on newly-discovered evidence.

Finding each of these contentions to be without merit, we affirm the judgment of the district court.

I. BACKGROUND

On August 14, 1986, officials of the Kuwait Airways Corporation contacted the Washington field office of the Federal Bureau of Investigation to report that an internal audit had turned up evidence of an embezzlement of funds from its Washington, D.C., sales office. Company officials indicated that appellant Sensi, the Regional Sales Manager for the airline, was believed responsible for the defalcation. Later that day, FBI agents obtained a federal arrest warrant charging Sensi with interstate transportation of stolen property.

On August 22, Sensi was arrested in London, by British police officials acting pursuant to that warrant. On September 18, 1986, a federal grand jury sitting in Washington, D.C., returned a 26-count indictment against Sensi. The indictment charged him with six counts of mail fraud, five counts of possession or receipt of stolen securities in excess of $5,000 in value transported in interstate and foreign commerce, four counts of first-degree theft under the District of Columbia Code, and eleven counts of transportation in interstate and foreign commerce of stolen securities and money in excess of $5,000 in value.

On September 26, 1986, the United States government presented the United Kingdom government with a request for the extradition of Sensi. Attached to the request were a certified copy of the indictment, copies of the relevant federal and District of Columbia criminal code sections, affidavits of witnesses, and a bench warrant for Sensi's arrest issued by a federal magistrate. On November 27, 1986, the United States government submitted more affidavits and documentary evidence to the United Kingdom government. On that day, after a hearing, a magistrate of the Bow Street Magistrates Court in London ruled that Sensi was extraditable, concluding that 18 charges of theft were made out by the evidence under United Kingdom law. Sensi was extradited to the United States on December 19, 1986.

Sensi was arraigned on December 22, 1986. He moved to dismiss the indictment; the district court denied the motion. United States v. Sensi, 664 F.Supp. 566 (D.D.C.1987). Subsequently, trial commenced on March 10, 1988. The prosecution evidence set forth a scheme in which Sensi defrauded Kuwait Airways and stole from it more than $2.5 million over a five-year period. In essence, the evidence showed that Sensi, without authorization from Kuwait Airways, opened a bank account in the name of the airline (the "640 account"), deposited into it $2,597,945.55 worth of checks payable to the airline over the course of five years and, in the same span of time, wrote $2,568,918.02 worth of checks drawn on the 640 account, payable to "cash" and to numerous third parties. The trial resulted in a jury verdict of guilt on 21 counts and acquittal on five counts (the latter being the five charges of possession or receipt of stolen securities transported in interstate and foreign commerce). Sensi filed motions for judgment of acquittal, for new trial and for arrest of judgment, all of which the district court denied. Following the court's imposition of sentence, Sensi filed notice of this appeal.

II. VALIDITY OF THE INDICTMENT

Sensi argues that the indictment cannot form the basis of a prosecution, because he was not extradited on the charges contained in the indictment. In effect, he reads the Extradition Treaty to forbid the prosecution of an extradited person for any violation of a United States criminal statute unless the scope of criminal liability for the charged offense is the same in both countries. This case calls on us to examine two related principles in extradition law: the rule that a person can be extradited only if his alleged offense constitutes a serious crime in both countries (the "double criminality principle"); and the rule that, once extradited, a person can be prosecuted only for those charges on which he was extradited (the "doctrine of specialty"). Sensi relies on the doctrine of specialty as a ground for reversal of his conviction, ¹ but his discussion of that doctrine draws heavily on the double criminality principle. Consequently, we will explore the role of both principles as they relate to this case.

A. The Double Criminality Principle

Article IX of the Extradition Treaty states as follows:

(1) Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party [in the present case, the United Kingdom] ... to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party....

Extradition Treaty, June 8, 1972, United States-United Kingdom, art. IX(1), 28 U.S.T. 227, 232, T.I.A.S. No. 8468 (emphasis added). The Treaty thus expressly embraces the double criminality principle of extradition law, which requires that the offense charged be punishable as a serious crime in both countries. See Restatement (Third) of Foreign Relations Law of the United States Sec. 476(c) (1987).

Sensi argues that the indictment is invalid because "the English magistrate did not find sufficient evidence to extradite for a single charge in the indictment." Brief for Appellant at 7. In other words, Sensi claims the United States could not try him for mail fraud or interstate transportation of stolen property unless the British magistrate found sufficient evidence to commit him for trial on those exact charges. Article IX of the Treaty required the magistrate to decide whether Sensi could have been committed for trial had he committed the "offense of which he is accused" in the United Kingdom; Sensi apparently reads the quoted phrase as referring to the United States Code section violation of which the defendant is accused--for example, mail fraud as defined by 18 U.S.C. Sec. 1341. ²

This interpretation yields a startling, and incorrect, conclusion. Under Sensi's reading of the Treaty, a person extradited from the United Kingdom upon a British magistrate's finding that he stole money by means of the United States mails could not be prosecuted on mail fraud charges, because under United States law it is possible to commit mail fraud without successfully stealing anything, ³ while in the United Kingdom the crime of theft requires that the defendant succeed in taking something from someone else. Brief for Appellant at 7. Due to this difference in the laws of the two countries, had Sensi committed the "offense of which he is accused"--mail fraud--in the United Kingdom, he would not necessarily have been committed for trial for theft under United Kingdom law. Thus, Sensi would have us conclude, mail fraud is never an extraditable offense. Brief for Appellant at 7.

Sensi's contentions misread the Extradition Treaty and misunderstand the double criminality principle. By interpreting the article IX phrase "the offense of which [the defendant] is accused" as referring to the code section violation of which the defendant is accused, Sensi's reading of the Treaty would defeat extradition any time the criminal laws of the two countries were not perfectly congruent--even though the defendant's conduct would amount to a serious crime in both countries. This would be an absurd result, given that the criminal laws of two countries are rarely an exact match.

There is, moreover, abundant evidence that no such meaning was intended by the parties to the Treaty. First, the most natural reading of "the offense of which [the defendant] is accused" in this context is that the "offense" Sensi was charged with was stealing from his employer. Use of the mails, or interstate transport, were merely the means by which he accomplished his acts, and although they have jurisdictional significance under United States law, Sensi's "offense" was stealing. Article IX of the Treaty required the British magistrate to decide whether, had Sensi performed the same acts in the United Kingdom, those acts would have been sufficient under...