See Risner, 2019 WL 6118377, at *10 (“The same alleged conduct would be criminal, if it were committed in the United States”); see also Lujan, 2022 WL 3581184, at *3 (the court rejected Lujan's argument that the two charges' language did not line up, and instead held that dual criminality was satisfied because both charges “address the same underlying conduct” and “punish the same basic evil”); In re Extradition of Fordham, 281 F.Supp.3d 789, 799 (D. Alaska 2017) (dual criminality is satisfied if the “essential character” of the criminal acts of each country are the same and the laws are “substantially analogous”).
See, e.g., Santos, 830 F.3d at 992 (stating that a fugitive “does not have the right to introduce evidence in defense because that would require the government seeking his extradition ‘to go into a full trial on the merits in a foreign country'”) (quoting Collins, 259 U.S. at 316); see also In re Extradition of Fordham, 281 F.Supp.3d 789, 799 (D. Alaska 2017) (“It is settled that the dual criminality requirement does not encompass possible ‘affirmative defenses'”).
Emami, 834 F.2d at 1449-50. See also Matter of Extradition of Fordham, 281 F.Supp.3d 789, 801 (D. Alaska 2017) (rejective the argument that "differences in mens rea requirements . . . defeat dual criminality"); Spatola v. United States, 741 F.Supp. 362, 372-73 (E.D.N.Y. 1990) aff'd, 925 F.2d 615, 618-19 (2nd Cir. 1991) ("without engaging in an unnecessary, comparative law, element-by-element statutory analysis . . . the acts for which Spatola was convicted [in Italy], and the actions of the group for which Spatola as co-conspirator was liable, are clearly illegal [in the U.S.]"); Trifonov v. Fox, Case No. C14-0366JLR, 2014 WL 3735419, at *14 (W.D. Wash. July 28, 2014) (discussing and rejecting the argument that the laws of the State of Washington were not substantially analogous to Bulgarian law because Washington law required "a greater mens rea than is required" by the Bulgarian statute at issue); Causbie Gullers v. Bejarano, Case No. 06CV1659 JM (AJB), 2007 WL 9771356, at *4 (S.D. Cal. Jan. 8, 2007), aff'd in part and remanded on other grounds, 293 Fed. App'x. 488 (9th Cir. 2008) (rejecting
And any affirmative defense based on lack of intent, including that Ahn believed he was acting at the behest of or in coordination with the U.S. government (see ECF No. 175 at 32-33 ), may not be considered by the extradition court. See, e.g., Santos v. Thomas, 830 F.3d 987, 993 (9th Cir. 2016) (en banc); In re Extradition of Fordham, 281 F. Supp. 3d 789, 799 (D. Alaska 2017) ("It is settled that the dual criminality requirement does not encompass possible ‘affirmative defenses[.]’ "). So, what remained to be decided after the hearing was whether probable cause existed to extradite Ahn on the other five charges and, if so, whether the Court should nonetheless refuse to certify extradition on humanitarian grounds.
Determinations of credibility are not to be made except at trial, which cannot occur at an extradition hearing under the uniform holdings of all the courts. Neely, 180 U.S. at 123; Fernandez v. Phillips, 268 U.S. 311, 312 (1925)(Holmes, J.); Matter of Extradition of Fordham, 2017 WL 6329558, at *9 (D. Alaska 2017); Matter of Extradition of Correa, 2017 WL 6492089, at *3 (S.D. Fla. 2017); In the Matter of Grynsztein, 2015 WL 6039845, at *3 (S.D. Fla. 2015). B.