United States v. Vreeken, CR 84-00048J.

• Decision Date: 11 December 1984
• Docket Number: No. CR 84-00048J.,CR 84-00048J.
• Citation: 603 F. Supp. 715
• Parties: UNITED STATES of America, Plaintiff, v. Kurt VREEKEN and Fred R. Vreeken, Defendants.
• Court: U.S. District Court — District of Utah

603 F. Supp. 715

UNITED STATES of America, Plaintiff, v. Kurt VREEKEN and Fred R. Vreeken, Defendants.

No. CR 84-00048J.

United States District Court, D. Utah, C.D.

December 11, 1984.

Stewart C. Walz, Tena Campbell, Asst. U.S. Attys., Salt Lake City, Utah, for plaintiff.

James W. McConkie and Kathleen M. Adams, Parker, McKeown & McConkie, Salt Lake City, Utah, Christopher Blakesley, Professor of Intern. Law, Sacramento, Cal., for defendants.

MEMORANDUM OPINION AND ORDER

JENKINS, Chief Judge.

This matter came before the Court on October 9, 1984, pursuant to the Defendant Kurt Vreeken's motion to dismiss the indictment against him. Stuart Walz and Tina Campbell, Assistant United States Attorneys, represented the United States; James W. McConkie and Kathleen M. Adams, both of Parker, McKeown & McConkie, and Christopher Blakesley, Professor of International Law at McGeorge School of Law, represented the defendant. After receiving several affidavits and hearing testimony, the Court denied the motion in open court and on the record, but reserved the right to set out in writing the Court's reasoning and to enter a formal order.

Vreeken asserts that his prosecution on the charge before the Court would violate an extradition treaty between the United States and Canada, and, therefore, the prosecution is improper. Although the motion is styled as a motion to dismiss the indictment, it is more analytically correct to view it as a motion to release the defendant from custody for lack of personal jurisdiction. Vreeken does not claim that the indictment is defective; he asserts only that a treaty forbids the United States from prosecuting him at this time. Analyzed as a challenge to the Court's jurisdiction over the person of the defendant, this motion presents two issues: First, whether international obligations of the United States preclude the prosecution of the defendant in a United States court on the charges in this case; and Second, whether the defendant has waived his objection to jurisdiction over his person.

I. PROCEDURAL SETTING

Pursuant to the provisions of a treaty between the United States and Canada, the United States applied to the Government of Canada for the extradition of Kurt Vreeken. The indictment on which the application was based charged Vreeken with several counts of wire fraud. After his arrest in Canada, Vreeken sought to be released on bail pending the outcome of extradition proceedings. The Canadian Judge, a judge under the Canadian Extradition Act, heard evidence on the issue of bail and denied Vreeken's request. After consulting with Canadian counsel, who advised the defendant that resisting extradition could take more than six months and that release on bail pending extradition was unlikely, the defendant signed a waiver of extradition proceedings and consented to return voluntarily to the United States. The Canadian Court then signed an Order to Convey, which directed the Royal Canadian Mounted police to deliver Vreeken to a United States Marshal in Toronto.

After his return to the United States, the defendant was released on bail. About five months later, while his bail provisions prevented him from leaving the country, the defendant was charged in a second indictment with multiple counts of tax fraud. The defendant subsequently objected to his prosecution under the second indictment.

Until the defendant filed the motion to dismiss, this case proceeded normally. On April 24, 1984, the defendant appeared voluntarily before a magistrate¹ and entered a plea of not guilty to the tax fraud charges. One week later the defendant's counsel appeared in the District Court for a scheduling conference. Trial was set for July 16, 1984, and pretrial motion cutoff, pursuant to Fed.R.Crim.P. 12(c), was set for May 25, 1984. At the end of May, on joint stipulation of the parties, the Court continued the trial date to October 16, 1984. At the same time, although the motion cutoff date had already passed, the Court extended the cutoff time to file pretrial motions to August 15.

On September 26, 1984—more than a month after the new motion cutoff date and only three weeks before trial—the defendant filed this motion to dismiss the indictment. The Court heard oral arguments on October 9, 1984, and denied the motion at that time. After a three-week trial and less than three hours of deliberation, the jury found the defendant guilty on all counts of the indictment.

II. PROSECUTING THE DEFENDANT ON THE TAX FRAUD CHARGES DOES NOT VIOLATE THE TREATY WITH CANADA

The defendant challenges this Court's jurisdiction over the person of the defendant. Generally speaking, once a defendant is before the court, he may not challenge the court's jurisdiction over his person on the ground that his presence before the court is unlawful. See United States v. Winter, 509 F.2d 975, 985-86 (5th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975) (challenge to jurisdiction based on an illegal arrest overruled). This is true even if a defendant is kidnapped from a foreign country and brought into the country in violation of international law. Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886).

The lone exception to the general rule is that the defendant can successfully challenge the court's jurisdiction over his person if he is before the court in violation of an international treaty. Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1927) (violation of a United States-Great Britain treaty that permitted the United States to seize any British Ship reasonably believed to be smuggling liquor, but only if the ship was within an hour's sailing distance of the coast); United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886) (violation of an extradition treaty); see also Winter, at 983.

The Court in Rauscher noted that enforcement of a treaty is the subject of international negotiations and a court can give no redress for its violation. However, the Court also reasoned that a treaty may contain provisions "which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other .... And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute." 119 U.S. at 418-19, 7 S.Ct. at 240. Because the present challenge to the Court's jurisdiction is based on treaty, the Court must examine the treaty to determine whether it confers a right on Vreeken not to be prosecuted in this case.

A. The Treaty Does Not Limit the Court's Jurisdiction in this Case.

The United States and Canada have signed an extradition treaty. 27 U.S.T. 983, T.I.A.S. No. 8237 (hereinafter, "Treaty"). Article 12 of that treaty contains a provision known as the "rule of speciality." The rule of speciality prohibits the requesting nation (in this case, the United States) from prosecuting an extradited person for any crime other than the one for which extradition was granted. The Supreme Court, in Rauscher, specifically held that the rule of specialty is a right that may be enforced by the person who was extradited. In response to the argument that the treaty's provisions are an obligation of only the surrendering state, the Court concluded:

If upon the face of this treaty it could be seen that its sole object was to secure the transfer of an individual from the jurisdiction of one sovereignty to another, the argument might be sound; but as this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition.

119 U.S. at 421-22, 7 S.Ct. at 241-42.

The Supreme Court bolstered this conclusion with a construction of the American Extradition Act. 18 U.S.C. §§ 3181-95 (1969). The Act provides that whenever a person is brought into the United States by extradition proceedings, the President has the power to protect the accused "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, and for a reasonable time thereafter." 18 U.S.C. § 3192. The Court in Rauscher concluded that this was a congressional construction of the purpose and meaning of the rule of speciality, and that it conferred a right on those extradited under such a provision. 119 U.S. at 424, 7 S.Ct. at 243.

Because the defendant has a right to challenge jurisdiction if prosecuting him would violate a treaty, it is necessary to examine the specific terms of the treaty to determine whether prosecuting Vreeken for tax fraud would violate it. Article 12 of the treaty provides as follows:

(1) A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted nor be extradited by that State to a third State unless:

(i) He has left the territory of the requesting State and has voluntarily returned to it;

(ii) He has not left the territory of the requesting State within thirty days after being free to do so; or

(iii) The requesting State has consented to his detention, trial, or punishment for an offense other than that for which extradition was granted or to his extradition to a third State, provided such other offense is covered by Article 2.

(2) The foregoing shall not apply to offenses committed after the extradition.

Treaty, at art. 12.

The...