U.S. v. Van Cauwenberghe, 86-5028

• Citation: 827 F.2d 424
• Decision Date: 03 September 1987
• Docket Number: No. 86-5028,86-5028
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilfried VAN CAUWENBERGHE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 424

827 F.2d 424

UNITED STATES of America, Plaintiff-Appellee, v. Wilfried VAN CAUWENBERGHE, Defendant-Appellant.

No. 86-5028.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 5, 1987.

Decided April 10, 1987.

Amended Sept. 3, 1987.

Robert L. Brosio, Los Angeles, Cal., and John D. Arterberry, Stephen J. Shine, Ellyn Marcus Lindsay, Washington, D.C., for plaintiff-appellee.

John G. Kester, Robert S. Litt, Washington, D.C., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before NELSON and BEEZER, Circuit Judges, and LEAVY, ^* District Judge.

AMENDED OPINION

NELSON, Circuit Judge:

Wilfried Van Cauwenberghe, a citizen of Belgium, appeals from a criminal conviction on one count of wire fraud under 18 U.S.C. Sec. 1343 (1982) and one count of interstate transportation of a victim of fraud under 18 U.S.C. Sec. 2314 (1982). Following a jury trial, Van Cauwenberghe was convicted of participating with two Americans in a scheme to defraud a Belgian investment broker and a family-owned Belgian corporation of 3.6 million dollars relating to the purchase and development of a condominium tract near Kansas City. Van Cauwenberghe argues that numerous errors were made requiring reversal of his extradition from Switzerland, his indictment, and his trial. In addition, Van Cauwenberghe argues that the district court should have returned certain property to him because it was seized illegally, and that his sentence was improper. This court has jurisdiction under 28 U.S.C. Sec. 1291. We affirm.

FACTS

Between 1979 and 1981, Van Cauwenberghe participated with two Americans, Alan H. Blair and Gerald L. Bilton, in a scheme to defraud Roger Biard, a Belgian investment broker, and a Belgian corporation owned by members of the Vanden Stock family, of 3.6 million dollars relating to the purchase and development of Concorde Bridge Townhouses, an apartment complex near Kansas City, Missouri. Van Cauwenberghe, Blair, and Bilton were indicted on seven counts, including three counts of wire fraud (18 U.S.C. Sec. 1343), three counts of interstate transportation of a victim of fraud (18 U.S.C. Sec. 2314), and one count of conspiracy to commit fraud (18 U.S.C. Sec. 371), in October 1984. The government learned that Van Cauwenberghe, a Belgian citizen, would be traveling from Brussels to Geneva on a brief business trip and, on November 20, 1984, filed a provisional arrest request with Swiss authorities pursuant to Article VI of the Treaty on Extradition, May 14, 1900, United States-Switzerland, 31 Stat. 1928, T.S. No. 354 ("Treaty"). ¹ Van Cauwenberghe was arrested by Swiss authorities as he stepped off his plane in Geneva on January 14, 1985.

On January 15, 1985, Swiss authorities also seized Van Cauwenberghe's assets at Credit Suisse and Fides Societe Fiduciare, Geneva, pursuant to the government's request Van Cauwenberghe challenged his extradition before the Swiss courts including the Swiss Federal Tribunal, Switzerland's highest court, which, on September 25, 1985, held that Van Cauwenberghe was extraditable under the Treaty for all of the offenses charged except conspiracy. Accordingly, Van Cauwenberghe was extradited to the United States on September 26, 1985.

under Article XII of the Treaty. These assets consisted of two stock certificates dating from 1973 in ABAMAR and BATIMAR, Panamanian land-holding corporations in which Van Cauwenberghe held 6.293% and 19.659% interests, respectively, and eighty-two unrelated documents. Van Cauwenberghe's Swiss attorney made a showing that Van Cauwenberghe had not invested any money in ABAMAR or BATIMAR since 1973, at least six years before the allegedly fraudulent acts for which he was being held. As a result, Swiss authorities agreed to release the BATIMAR certificate on February 7, 1985. The government, however, renewed its request that all stock certificates in Van Cauwenberghe's Swiss accounts be seized, and, on March 21, 1985, Swiss authorities acquiesced and again seized the BATIMAR certificate. The government subsequently filed a formal extradition request on March 12, 1985.

The trial of Van Cauwenberghe, Blair, and Bilton began in Los Angeles on November 19, 1985. Prior to trial, the district court denied Van Cauwenberghe's motion for a severance and limited trial to counts one (interstate transportation of a victim of fraud) and two (wire fraud) (the "Biard counts"), ² severing counts three through six (the "Vanden Stock counts") for later disposition, and dismissing count seven (conspiracy). The district court also denied Van Cauwenberghe's motions to dismiss the indictment due to improper extradition, to dismiss count two for failure to state an interstate offense, and for transfer of venue to Washington, D.C. In addition, the district court denied Van Cauwenberghe's motion under Fed.R.Crim.P. 41(e) to release his stock certificates in ABAMAR and BATIMAR, and ordered all property seized by Swiss authorities deposited into the registry of the court pending the outcome of the trial.

The theory of Van Cauwenberghe's defense at trial was that he was merely an innocent pawn in the fraudulent scheme, not a culpable participant. During trial, Roger Vanden Stock, a director of the family-owned Belgian corporation, was allowed to testify about communications between the Vanden Stock family and defendants, over Van Cauwenberghe's objections that such testimony was unduly prejudicial and improper because trial was limited to the two Biard counts. The court also allowed extensive testimony, over Van Cauwenberghe's objections, regarding Blair's misrepresentations to both Biard and the Vanden Stocks made outside the presence of Van Cauwenberghe.

The jury found all three defendants guilty on both counts. Van Cauwenberghe's motions for judgment of acquittal and for a new trial were denied, and judgment for the government was entered on January 22, 1986. On motions by the government, the district court dismissed the Vanden Stock counts against all defendants and agreed to retain the stock certificates until sentencing. The district court sentenced Van Cauwenberghe to a $10,000 fine and one year and one day in custody on the first count, crediting him for 373 days already served in pretrial confinement, and to a $1,000 fine and a five-year probation period on the second count. As conditions of probation on count two, the district court ordered Van Cauwenberghe (1) to make restitution of $458,373.89 to Roger Vanden Stock and $34,501.26 to Roger Biard; (2) not to engage in any real estate transactions, except to liquidate his property, or wire transfers, except Because the 373 days of pretrial confinement for which Van Cauwenberghe received credit exceeded his custodial sentence on count one, Van Cauwenberghe immediately began his probation. The stock certificates were released into the joint custody of the government and Van Cauwenberghe for liquidation. The amount realized upon liquidation was ordered to be deposited back into the registry of the district court. The excess, up to $600,000 above the $492,875.15 restitution, realizable upon the eventual sale of the certificates, was attached on February 6, 1986, pursuant to a civil action filed by Biard against Van Cauwenberghe in the district court.

to his family; and (3) not to leave the United States until the restitution is paid. ³

Van Cauwenberghe timely appealed on January 31, 1986. Neither Blair nor Bilton, co-defendants below, is a party to this appeal.

DISCUSSION

I. EXTRADITION

The district court's decision that an offense is an extraditable crime presents a legal question subject to de novo review by this court. Quinn v. Robinson, 783 F.2d 776, 791-92 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986).

The right "to demand and obtain extradition of an accused criminal is created by treaty." Id. at 782; see Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78 L.Ed. 315 (1933). The offense complained of must ordinarily, therefore, be listed as an extraditable crime in the treaty. Quinn, 783 F.2d at 791. In addition, "under the doctrine of 'dual criminality,' an accused person can be extradited only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations." Id. at 783; In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir.1986). This dual criminality requirement has been expressly incorporated into the Treaty. See Treaty, art. II, 31 Stat. at 1929, T.S. No. 354, at 2. To satisfy this "dual criminality" requirement,

"[t]he law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions."

Russell, 789 F.2d at 803 (quoting Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470-71, 66 L.Ed. 956 (1922)).

As a matter of international comity, "[t]he doctrine of 'specialty' prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite." Quinn, 783 F.2d at 783. However, since the doctrine is based on comity, its "protection exists only to the extent that the surrendering country wishes." United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.) (per curiam), cert. denied, --- U.S. ----, 107 S.Ct. 652, 93 L.Ed.2d 707 (1986). Therefore, the " 'extradited party may be tried for a crime other than that for which he was surrendered if the asylum country consents.' " Id. (quoting Berenguer v. Vance, 473 F.Supp. 1195, 1197 (D.D.C.1979)); see M. Bassiouni, International Extradition ch. VII, at 6-11 (1983).

Van Cauwenberghe argues that his extradition was improper because the Treaty does not identify wire fraud and...