Opinion
Case No. 3:09-mj-109.
December 17, 2009
DECISION AND ORDER
The United States commenced this extradition matter on May 8, 2009, by filing a criminal complaint and obtaining an arrest warrant from The Honorable Sharon L. Ovington (Doc. No. 2 and attachment). After arrest and some time of confinement, Ms. Traxler was released on bond pending a final determination (Doc. Nos. 14, 15). After an extradition hearing on June 8, 2009, the Court took the matter under advisement, having been informed of progress with resolving the criminal case in Portugal. At a status conference on August 25, 2009, the Court was advised that there had been additional formal correspondence between the Governments of Portugal and the United States and it ordered that correspondence produced (Doc. No. 21). Shortly after production, Ms. Traxler moved to dismiss this matter on grounds that the Government of Portugal had withdrawn its extradition request (Doc. No. 23), a Motion the United States opposed (Doc. No. 25).
The matter was presented to Judge Ovington because, although the undersigned was assigned to general criminal duty for May, 2009, he was necessarily absent to attend meetings of the Judicial Council and Judicial Conference of the Sixth Circuit Court of Appeals.
On October 13, 2009, the Court issued an Interim Order denying Ms. Traxler's Motion to Dismiss but requiring additional submissions by the parties on the question of dual criminality
(Doc. No. 26). Both parties have now responded (Doc. No.s 28, 29) and the matter is ripe for decision.
Analysis
18 U.S.C. § 3184 provides in pertinent part:
Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. . . . If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
The Court finds that there exists a Convention on Extradition between the United States and Portugal, entered into in 1908 and ratified by the United States Senate on May 22 of that year (the "Convention"). Preliminary proceedings in felony criminal matters are generally referred to the Magistrate Judges at Dayton by the General Order of Assignment and Reference and both Magistrate Judges at Dayton have been specifically authorized to act in this case (Doc. No. 27). Thus issuance of the initial arrest warrant was proper and the Court acquired personal jurisdiction of Ms. Traxler when she was arrested on that warrant in this judicial district.
The Complaint charges Ms. Traxler with having committed one count of aggravated fraud in violation of §§ 217 and 218 of the Portuguese Criminal Code and seventeen counts of forgery under § 256-1(a) of that Code, all such crimes being punishable by imprisonment for more than one year. These crimes appear to be provided for by Article II, §§ 11 (forgery) and 20 (fraud) of the Convention. The Department of State has taken the position that the crimes are thus covered (Affidavit of Kenneth R. Propp, January 8, 2009, at ¶ 5) and the Court has heard no evidence or argument to the contrary.
Article I of the Convention imposes what is known as a requirement of "dual criminality" by stating
provided that such surrender shall take place only upon such evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his [or her] apprehension and commitment for trial if the crime or offence had been there committed.
(Convention, attached to the Declaration of Kenneth R. Propp, Attorney Adviser, Office of Legal Adviser, Department of State.) In making the determination of dual criminality, the extradition magistrate judge is to look at the acts which are the basis of the charge in the foreign country, and not just to the names of the offenses in the two countries. Collins v. Loisel, 259 U.S. 309 (1922). In determining dual criminality, this Court looks to both the law of the State of arrest, here Ohio, and federal law. Pettit v. Walshe, 194 U.S. 205 (1904); Cucuzzella v. Keliikoa, 638 F.2d 105, 107 (9th Cir. 1981); Hu Yua-Leung v. Soscia, 649 F.2d 918 (2nd Cir. 1981).
The following factual allegations are taken from the English translation of the attachments to the International Arrest Warrant ("Warrant") issued for Ms. Traxler by Dr. Joao Moriera do Carmo, Judge at the Legal District, Tribunal Judicial de Setubal, Portugal:
Ms. Traxler is a Portuguese national born April 10, 1984, in South Africa, to Belmiro Manuel Franca Brandao ("Father") and Marina Rodrigues Holbeche Fino ("Mother). (Warrant at 1) In 1995, before his daughter's eleventh birthday, Father became employed by the Complainant in this case, Philips Portuguesa, S.A. ("Philips"). Id. at 8. Father then hired Mother to work for Philips in various capacities from 1996 to 2002. Id. Father and Mother "conceived . . . a criminal scheme" of having temporary agencies who did work for Philips "hire his own children, relatives and acquaintances" who never did any work for Philips "and whose wages were directly credited in the bank accounts of" Father and Mother. Id. At some unstated date, Father signed a contract on behalf of Ms. Traxler resulting in wages for the period November, 2000 to November, 2001, being deposited in Father's bank account. Id. Father signed another contract in Ms. Traxler's name for the period December, 2000, to August, 2002, resulting in more money being deposited in Father's account. Id. at 10.
On April 21, 2002, Father signed another temporary contract on behalf of Ms. Traxler, this time allegedly "with her knowledge and consent." Id. at 11. The wages paid on this contract went into Mother's account. Id. at 12. In 2002, Ms. Traxler allegedly provided the personal documents of a man she was then dating, Vito Jose Rodrigues Guilherme to her parents which were then used by Father and Mother to obtain wages deposited to Father's account for work never performed. Id. at 21-22. Beginning on page 22, the translation of the Warrant begins to refer to "defendants" in the plural without differentiating acts performed by each of them; the persons named as defendants are Father, Mother, Ms. Traxler, and her older brother Marco. The Warrant alleges "defendants" signed another contract on behalf of Guilherme on July 22, 2002. Id. at 22. While the Warrant asserts "defendants" had "an unlawful global profit of ? 3.489,52," it shows payment of the wages into Father's account. Id.
The Warrant alleges that on December 21, 2000, Father signed contracts on behalf of his wife and children. Id. at 23-24. He is alleged to have done the same thing on April 21, 2001. Id. at 24. It is alleged Ms. Traxler never worked for Philips but received payments for temporary agency work in May, 2001. Id. Summarizing, the Warrant alleges:
The whole family — Belmiro, Marina, Marco, and Soraya — adhered to the scheme, cooperated for the same goal and jointly benefited from those frauds.
While, on some occasions, it was Belmiro who acted on behalf of his children, in other cases — in particular when they reached majority — his children would themselves actively take part in the scheme.
Therefore, they would sign the contracts falsified by their father while knowing that the profits they got were unlawful, but still taking advantage from the situation.Id. at 24. Later the Warrant repeats in summary fashion the allegations that Ms. Traxler used the revenue from the scheme and helped prepare and sign fraudulent documents. The Warrant charges that all four defendants "incur, as co-perpetrators," the offenses of continued aggravated fraud and 17 counts of falsification; the latter offense is also referred to as "forgery of private documents." Id. at 32.
Translations of the relevant sections of the Portuguese Criminal Code are also attached to the Warrant as pages 34-35. This Court accepts the representation of the Portuguese authorities that the facts recited above, if proved, would be sufficient to convict Ms. Traxler of violations of the statutes cited, particularly in that there is no evidence to the contrary.
In its Memorandum in Response to the Court's Interim Order (Doc. No. 28), the United States recites various federal and Ohio criminal statutes which it asserts would have been violated by Ms. Traxler had she committed the alleged acts in the Southern District of Ohio. Under the dual criminality doctrine, the statutes in the requesting country need not be identical to those in the jurisdiction from which extradition is sought; rather, the provisions must be "substantially analogous."
Statutes are substantially analogous when they "punish conduct falling within the broad scope" of the same "generally recognized crime. Differences in instrumentalities or purposes are not important, so long as the statutes relate to the same general offense. In other words, when "the laws of both the requesting and the requested party appear to be directed at the same basic evil," the statutes are substantially analogous, and can form the basis of dual criminality.Peter v. Egnor, 888 F. 2d 713, 719 (10th Cir. 1989) (citations omitted).
On one level of analysis, most of the statutes cited by the United States fit this test. For example, the mail fraud statute, 18 U.S.C. § 1341, is intended to punish schemes to defraud, and the inclusion of the element of use of the mails would appear to be intended to satisfy the constitutional jurisdictional requirements for a federal crime, rather than being part of the basic evil aimed at by the statute. Thus it might be considered irrelevant for purposes of analyzing dual criminality that there is no allegation of use of the mails to carry out the payroll padding scheme.
If it were needful to allege an instrumentality to have dual criminality, it would seem that this element would be satisfied by the allegation that proceeds of the scheme were, at least in most cases, direct deposited into the banks accounts of one or the other of Ms. Traxler's parents.
However, read on another level, the Portuguese allegations do not have dual criminality with the United States and Ohio statutes cited. Throughout the Portuguese allegations, that Brandao family is essentially treated as an entity which is co-responsible for this scheme. As noted above, for example, at one point the Warrant begins to speak of "defendants" in the plural. The Summary at the end alleges "The whole family — Belmiro, Marina, Marco, and Soraya — adhered to the scheme, cooperated for the same goal and jointly benefited [sic] from those frauds." However, when alleging actual criminal acts, the Warrant speaks only of acts done by the father and the mother, with two exceptions which will now be considered.
The Warrant alleges that on April 21, 2002, the father signed a fraudulent contract on behalf of Ms. Traxler "with [her] consent and knowledge." The Court assumes that giving consent to one's father to sign a contract on one's behalf, knowing that the father's intent is to use the contract to defraud a third party is a criminal act in Ohio. The difficulty, as Ms. Traxler's counsel points out, is that the allegation is completely conclusory. The Court is referred to no evidence from which anyone could conclude that there is probable cause to believe that allegation. How was Ms. Traxler's consent evidenced? How are we to know that she knew this was happening?
This is an assumption arguendo because the United States has cited no authority to this effect.
The second exception in the Warrant is the allegations that she procured identification documents from her boyfriend and gave them to her father "so he could secure employment through her parents." (Memorandum, Doc. No. 28, at 3.) The Warrant alleges in full
Soraya persuaded Vitor that she could get him some work with the help of her parents. All he had to do was to provide her with copies of his personal documents. . . . Vitor . . . never performed any kind of work under that contract. On the basis of that contract, the defendants received deposits in the bank account of Belmiro [the father].
(International Arrest Warrant at 21.) This allegation is of active conduct on Ms. Traxler's part, rather than passive acquiescence in her father's conduct. But in itself it does not allege any criminal activity on her part. Rather, it says she persuaded her boyfriend that her father could get him a job, but the boyfriend didn't actually get a job. Instead, the boyfriend's documents were used by the father to perpetrate a fraud on Philips.
These two allegations of actual conduct or at least knowing acquiescence on Ms. Traxler's part must be read in the context of the whole Warrant, which essentially alleges that the Brandao family was a criminal enterprise. This Court is unfamiliar with Portuguese concepts of familial responsibility. It may be the case in Portugal — indeed, the Court assumes arguendo it is the case because the Warrant says so — that children who know about their parents thievery and benefit from it in the sense of having a higher economic standard of living than they otherwise would can be held criminally liable with their parents.
That, however, is not the law in the United States generally or in Ohio. Our criminal law is, for better or worse, much more focused on individual responsibility. In Ohio a sixteen or seventeen-year-old child who lived well, even very well, on the criminal profits of his or her parent could not be held liable for the parents crimes, even if the child knew about them, acquiesced in them, indeed wholeheartedly approved of them. Read as a whole, the Warrant seeks to prosecute a whole family for the criminal acts of the father and mother because the children also knowingly benefitted. That would not be possible under federal or Ohio law.
Entirely apart from the foregoing analysis, the Court must consider the fact that no acts are alleged to have been done by Ms. Traxler except when she was under the age of eighteen. The Warrant asserts that she was born October 4, 1984, and thus would not have reached the age of majority in Ohio until October 4, 2002. Assuming that the acts she herself is alleged to have committed were crimes and had been done in Ohio (or elsewhere in the United States in a State where the age of majority is eighteen), she could not have been convicted of crimes based on those acts unless she had been "transferred" from juvenile court to adult court. In Ohio, the crimes charged in the Warrant do not authorize automatic transfer to adult court. She could therefore only have been convicted if transferred by the juvenile court judge, the "most traditional and common form" of waiver of juvenile court jurisdiction. LaFave, Substantive Criminal Law 2nd § 9.6(d) at 69 (2003). Before such a transfer could take place, Ms. Traxler would have been constitutionally entitled to a hearing and the court would have had to consider the following criteria:
1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
4. The prosecutive merits of of the case.
7. The record and previous history of the juvenile . . .
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile . . .Kent v. United States, 383 U.S. 541, 566-67 (1966).
Even a cursory review of these criteria shows that a juvenile court in Ohio would not have waived jurisdiction over these offenses if they were charged against Ms. Traxler. While the offenses are serious, they do not involve violence or a threat of violence or any personal injury. Ms. Traxler apparently committed these offenses, if at all, in subservience to her parents and there is no allegation that she had any direct pecuniary benefit, i.e., any material benefit she derived depended on her father spending the stolen money on her. While there may be a great deal of evidence against the parents, her person involvement is tangential. So far as is shown, she has no prior record of criminal misconduct. And in terms of adequate protection of the public, she is presently on the opposite side of the world from her parents, twenty-five years old, stably married, and the mother of two children — not the profile of a likely recidivist.
No showing is made as to whether Portugal similarly treats juvenile offenders, or even whether Ms. Traxler would have been treated as a juvenile under Portuguese law at the time she committed the acts alleged against her. But assuming for the sake of argument that her age would be irrelevant under Portuguese law, it would not be irrelevant under Ohio or federal law.
The Court thus concludes on the basis of the foregoing two pieces of analysis that the United States has not proven the required element of dual criminality. The request of the Department of Justice on behalf of the Government of Portugal for a certificate of extraditability under 18 U.S.C. § 3184 is DENIED. The Order setting conditions of release herein (Doc. No. 15) is dissolved and Ms. Traxler is released from the custody of this Court.