STATE OF WASHINGTON vs. MARTIN SHAW PANG, 940 P.
2d 1293 (Wash. 1997) and AFFIRMED by the U. S. Supreme Court, 139
L.Ed.2d 608.
(Cite
as: 132 Wash.2d 852, 940 P.2d 1293)
STATE
of Washington, Respondent,
v.
Martin
Shaw PANG, Petitioner.
No.
64786-1.
Supreme
Court of Washington,
En
Banc.
Argued
April 8, 1997.
Decided
July 31, 1997.
As
Amended Oct. 15, 1997.
Defendant was charged with four counts of murder in the first degree
and one count of arson in the first degree. The Superior Court, King
County, Larry Jordan, J., denied motion to dismiss or sever murder
counts. Defendant moved for direct discretionary review. The Supreme
Court, Smith, J., held that: (1) defendant had standing to object to
violation of terms of order on extradition issued by Federal Supreme
Court of Brazil; (2) Brazil did not waive any objection it could have
made to prosecution for murder; (3) specialty doctrine prohibited
state from prosecuting defendant for crimes specifically excluded in
extradition order; and (4) state was obligated to follow decision of
Federal Supreme Court of Brazil which ruled that,
as a condition for extradition, defendant could not be prosecuted on
murder counts.
Reversed.
Durham, C.J., filed dissenting opinion in which Dolliver and
Talmadge, JJ., joined.
Alexander, J., filed opinion joining in dissent.
State v. Pang
[1]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
In absence of asylum country's consent to prosecution of accused for
crime other than that for which accused was extradited, extradited
person may raise any objections to post-extradition proceedings that
might have been raised by rendering country.
State v. Pang
[2]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Only asylum country's express consent to prosecution will be
considered a waiver of doctrine of specialty, under which requesting
country may not prosecute accused for a crime other than that for
which accused was extradited.
State v. Pang
[3]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Letter from Brazil Minister of Justice to United States Attorney
General, in which Minister discussed ruling by Brazil's Federal
Supreme Court that state could try extraditee for arson but not for
murder, was neither an implicit waiver nor an explicit waiver of
doctrine of specialty, and thus defendant had standing to assert
limitations on his post-extradition prosecution; Minister explained
in follow-up letter than he had provided no type of interpretation of
content and reach of Federal Supreme Court's decision.
State v. Pang
[4]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Brazil did not implicitly waive objection to state's prosecution of
extraditee for murder; Brazil's Federal Supreme Court issued decision
rejecting extradition on murder charges and rejected appeal and
motion for clarification, and Brazil's President and Minister of
Justice affirmatively declined request of United States President
that Brazil waive its right to object to murder prosecution.
State v. Pang
[5]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Under international law, specialty doctrine generally prohibits
requesting state from prosecuting extraditee for offense other than
the one for which surrender was made.
State v. Pang
[6]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k1 k. Nature, grounds, and scope of remedy.
Wash.,1997.
For extradited defendant to be charged with a crime, that crime must
be specified in treaty and be included in extradition petition.
State v. Pang
[7]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Specialty doctrine may be implied where extradition treaty is silent
on the issue and there is no reason to assume signatory nations did
not abide by principles of comity.
State v. Pang
[8]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Doctrine of specialty prohibited prosecution of extraditee for
murder, where grant of extradition from Brazil specifically excluded
murder charges from grant. 18
U.S.C.A. ß 3192.
State v. Pang
[9]
KeyCite
this headnote
385 TREATIES
385k1 k. Nature and grounds of obligation.
Wash.,1997.
Treaties are binding on states as well as federal government.
State v. Pang
[10]
KeyCite
this headnote
385 TREATIES
385k7 k. Construction and operation in general.
Wash.,1997.
Courts must interpret treaties in good faith.
State v. Pang
[11]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
In interpreting terms and conditions of extradition treaty, court
should not seek, by doubtful construction of some of treaty's
provisions, to obtain extradition of person for one offense and then
punish him for another and different offense.
State v. Pang
[12]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k2 k. Treaties.
Wash.,1997.
Right to demand and obtain extradition of accused criminal is created
by treaty.
State v. Pang
[13]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k5 k. Offenses ground for extradition.
Wash.,1997.
Treaty must ordinarily list offense complained of in request for
extradition as an extraditable offense.
State v. Pang
[14]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k5 k. Offenses ground for extradition.
Wash.,1997.
Under doctrine of dual criminality, accused person may be extradited
only if conduct complained of is considered criminal by jurisprudence
or under laws of both requesting and asylum countries.
State v. Pang
[15]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k5 k. Offenses ground for extradition.
Wash.,1997.
Determination of whether crime is within provisions of extradition
treaty is within sole purview of requested country.
State v. Pang
[16]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
Extradition Treaty between United States and Brazil prohibited state
from prosecuting extraditee for crimes not authorized in extradition
order.
State v. Pang
[17]
KeyCite
this headnote
166 EXTRADITION AND DETAINERS
166I Extradition
166I(A) International
166k19 k. Rights and liabilities of accused after extradition.
Wash.,1997.
State was obligated to follow decision of Federal Supreme Court of
Brazil which ruled that, as a condition for extraditing defendant, he
could be prosecuted only for crime of arson resulting in four deaths,
without additional charge of four counts of first-degree murder.
**1294
(Cite
as: 132 Wash.2d 852, 940 P.2d 1293, **1294)
|
*854
(Cite
as: 132 Wash.2d 852, *854, 940 P.2d 1293, **1294)
|
Browne & Ressler, John H. Browne, Mark T. Dole, Allen M. Ressler,
Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Marilyn B. Brenneman, Timothy A.
Bradshaw, Deputies, Seattle, for respondent.
SMITH, Justice.
Petitioner Martin Shaw Pang seeks review of a King County Superior
Court decision which denied his motion to dismiss or sever four
counts of murder in *855
(Cite
as: 132 Wash.2d 852, *855, 940 P.2d 1293, **1294)
|
the
first degree from one count of arson in the first degree based upon
his claim that the Federal Supreme Court of Brazil approved his
extradition from that country for prosecution in the
**1295
(Cite
as: 132 Wash.2d 852, *855, 940 P.2d 1293, **1295)
|
State of Washington only for the crime of arson in the first degree.
We reverse.
QUESTION
PRESENTED
The
basic question in this case is whether the State of Washington may
prosecute Petitioner Martin Shaw Pang for four counts of murder in
the first degree and one count of arson in the first degree when the
Federal Supreme Court of Brazil, ruling on the State's petition for
extradition, granted his extradition for prosecution in the State of
Washington "for the crime of arson in the first degree, resulting in
four deaths .... without the additional charge of four counts of
first degree murder." To answer the basic question,
we must answer these additional questions:
(1) Does Petitioner Pang have standing to object to violation by the
State of Washington of the terms of the order on extradition issued
by the Federal Supreme Court of Brazil?
(2) Did the United States of Brazil explicitly or implicitly waive
any objection it could have made to prosecution by the State of
Washington of Petitioner Pang for murder in the first degree contrary
to the specific terms of the extradition order issued by the Federal
Supreme Court of Brazil?
(3) Does the "specialty doctrine" in international extradition law
prohibit the State of Washington from prosecuting Petitioner Pang for
crimes specifically excluded in the extradition order?
(4) Does the Extradition Treaty between the United States of America
and the United States of Brazil prohibit the State of Washington from
prosecuting Petitioner Pang for crimes not authorized in the
extradition order?
(5) Is the State of Washington obligated to follow the decision
*856
(Cite
as: 132 Wash.2d 852, *856 , 940 P.2d 1293,
**1295)
|
of
the Federal Supreme Court of Brazil which ruled that, as a condition
for extraditing Petitioner Pang to the State, he can be prosecuted
only "for the crime of arson in the first degree resulting in four
deaths .... without the additional charge of four counts of first
degree murder"?
STATEMENT
OF FACTS
On
January 5, 1995, four firefighters died while fighting a fire at the
Mary
(Cite
as: 132 Wash.2d 852, *856, 940 P.2d 1293, **1295)
|
Pang
Products, Inc. warehouse at 811 Seventh Avenue South in Seattle,
Washington. [FN1] Fire investigators later determined the
fire had been deliberately set. Martin Shaw Pang became a suspect. A
fugitive warrant was issued for his arrest. [FN2] On March 3,
1995 the King County Prosecuting Attorney by Information charged
Petitioner Pang with four counts of murder in the first degree as
follows:
|
FN1.
See Certification for Determination of Probable Cause,
Clerk's Papers at 4.
|
|
FN2.
See Warrant for Arrest, United States District Court Case
Number 95- 38m, signed by Judicial Officer David E. Wilson
on February 3, 1995; see also Arrest Warrant, King County
Superior Court Cause Number 95-1-00473-0, signed by Deputy
Clerk Bill Stream. The dateline on the warrant states
"Witness my hand and Seal this March 3, 1995 day of January,
1995."
|
COUNT
I
I,
Norm Maleng, Prosecuting Attorney for King County in the name and by
the authority of the State of Washington, do accuse MARTIN S. PANG of
the crime of Murder in the First Degree, committed as follows:
That the defendant MARTIN S. PANG, together with another, in King
County, Washington on or about January 5, 1995,
while committing and attempting to commit the crime of Arson in the
First Degree, and in the course of and in furtherance of said crime
and in immediate flight therefrom, did cause the death of Lieutenant
Walter Kilgore, a human being who was not a participant in the crime,
and who died on or about January 5, 1995;
Contrary to RCW
9A.32.030(1)(c),
and against the peace and dignity of the State of
Washington.
COUNT
II
*857
(Cite
as: 132 Wash.2d 852, *857, 940 P.2d 1293, **1295)
|
And
I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Murder in the First Degree, a crime of
the same or **1296
(Cite
as: 132 Wash.2d 852, *857, 940 P.2d 1293, **1296)
|
similar character as another crime charged herein, and committed as
follows:
That the defendant MARTIN S. PANG, together with another, in King
County, Washington on or about January 5, 1995, while committing and
attempting to commit the crime of Arson in the First Degree, and in
the course of and in furtherance of said crime and in immediate
flight therefrom, did cause the death of Lieutenant Gregory A.
Shoemaker, a human being who was not a participant in the crime, and
who died on or about January 5, 1995;
Contrary to RCW
9A.32.030(1)(c),
and against the peace and dignity of the State of
Washington.
COUNT
III
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Murder in the First Degree, a crime of
the same or similar character as another crime charged herein, and
committed as follows:
That the defendant MARTIN S. PANG, together with another, in King
County, Washington on or about January 5, 1995, while committing and
attempting to commit the crime of Arson in the First Degree, and in
the course of and in furtherance of said crime and in immediate
flight therefrom, did cause the death of Firefighter James T. Brown,
a human being who was not a participant in the crime, and who died on
or about January 5, 1995;
Contrary to RCW
9A.32.030(1)(c),
and against the peace and dignity of the State of
Washington.
COUNT
IV
And
I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Murder in the First Degree, a crime of
the same or similar character as another crime charged herein, and
committed as follows:
*858
(Cite
as: 132 Wash.2d 852, *858, 940 P.2d 1293, **1296)
|
That the defendant MARTIN S. PANG, together with another, in King
County, Washington on or about January 5, 1995, while committing and
attempting to commit the crime of Arson in the First Degree, and in
the course of and in furtherance of said crime and in immediate
flight therefrom, did cause the death of Firefighter Randall R.
Terlicker, a human being who was not a participant in the crime, and
who died on or about January 5, 1995;
Contrary to RCW
9A.32.030(1)(c),
and against the peace and dignity of the State of Washington.
NORM MALENG
Prosecuting Attorney
By: [s] Marilyn B. Brenneman
MARILYN B. BRENNEMAN, WSBA # 91002 [sic]
Senior Deputy Prosecuting Attorney
By: [s] Timothy A. Bradshaw
Timothy Bradshaw, WSBA # 91002 [sic]
Senior Deputy Prosecuting Attorney [FN3]
|
FN3.
Clerk's Papers at 1-3.
|
A Certification for Determination of Probable Cause was attached to
the Information. [FN4]
|
FN4.
See Clerk's Papers at 4-8.
|
On March 16, 1995, Petitioner Martin Shaw Pang was arrested in Rio de
Janeiro, Brazil. [FN5] The following day the Prosecuting
Attorney of King County by amended information added a charge of
arson in the first degree. The Amended
Information, after repeating the four counts of
murder in the first degree, then stated:
|
FN5.
See Record of Surrender of Person Being Extradited, Number
02/96, Clerk's Papers at 363.
|
COUNT
V
And
I Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Arson in the First Degree, a crime of
the same or similar character *859
(Cite
as: 132 Wash.2d 852, *859, 940 P.2d 1293, **1296)
|
and
based on a series of acts connected together with another crime
charged herein, which crimes were part of a common scheme or plan,
and which crimes were so closely connected in respect with time,
place and occasion that it would be difficult to separate proof of
**1297
(Cite
as: 132 Wash.2d 852, *859, 940 P.2d 1293, **1297)
|
one
charge from proof of the other, committed as follows:
That the defendant MARTIN S. PANG in King County, Washington on or
about January 5, 1995, did knowingly and maliciously cause a fire or
explosion located at 811 Seventh Avenue South (the Mary Pang
Warehouse), Seattle, which was manifestly dangerous to any human
life, including firemen;
Contrary to RCW
9A.48.020(1)(a),
and against the peace and dignity of the State of Washington.
[FN6]
|
FN6.
Amended Information, Clerk's Papers at 9-11.
|
In July 1995 the United States of America requested the United States
of Brazil to extradite Petitioner Pang to the State of Washington for
trial on four counts of murder in the first degree and one count of
arson in the first degree. [FN7] The Affidavit in Support of
Request for Extradition states:
|
FN7.
See Affidavit in Support of Request for Extradition, King
County Cause Number 95-1-00473-0.
|
STATE OF WASHINGTON
COUNTY OF KING
I, MARILYN B. BRENNEMAN, being duly sworn, hereby depose and say:
1. I am a citizen of the United States and a resident of the State of
Washington.
2. I have been engaged in the practice of law in the State of
Washington since 1980.
3. Since May 1, 1980 I have been employed by the King County
Prosecuting Attorney's Office as a Deputy Prosecuting Attorney. I was
appointed Senior Deputy Prosecuting Attorney
*860
(Cite
as: 132 Wash.2d 852, *860 , 940 P.2d 1293,
**1297)
|
on
January 2, 1985. My duties are to prosecute persons charged with
criminal violations of the laws of the State of
(Cite
as: 132 Wash.2d 852, *860, 940 P.2d 1293, **1297)
|
Washington.
In the course of such prosecutions, I have become knowledgeable about
the state criminal statutes and case law, including those related to
the crime of Murder in the First Degree and Arson in the First
Degree. I am responsible for prosecuting the case of State of
Washington vs. Martin Shaw Pang, King County Superior Court Cause
Number 95-1-00473-0. I am therefore familiar with the evidence and
charges in this case and the contents of the relevant files of the
King County Superior Court and the Office of the King County
Prosecuting Attorney.
4. On March 3, 1995, an Information was filed in King County Superior
Court charging the defendant with the crimes of Murder in the First
Degree, Counts I, II, III, and IV, Class "A" Felonies, carrying the
potential penalty of life imprisonment. On March 17, 1995, an Amended
Information was filed in King County Superior Court adding the charge
of Arson in the First Degree, Count V, also a Class "A" Felony,
carrying the potential penalty of life imprisonment.
5. The statutes cited in the Information and Amended Information are
Revised
Code of Washington 9A.32.030(1)(c)
and 9A.48.020(1)(a).
These statutes are as follows:
9A.32.030. Murder in the first degree.
(1) A person is guilty of murder in the first degree when:
(a) With a premeditated intent to cause the death of another person,
he causes the death of such person or of a third person; or
(b) Under circumstances manifesting an extreme indifference to human
life, he engages in conduct which creates a grave risk of death to
any person, and thereby causes the death of a person; or
(c) He commits or attempts to commit the crime of either (1) robbery,
in the first or second degree, (2) rape in the first or second
degree, (3) burglary in the first degree, (4) arson in the first, and
(5) kidnapping, in the first or second degree, and; in the course of
and in furtherance of such crime or in immediate flight therefrom,
he, or another *861
(Cite
as: 132 Wash.2d 852, *861 , 940 P.2d 1293,
**1297)
|
participant, causes the death of a person other than one of the
participants: except that in any prosecution under this subdivision
(1)(c) in which the defendant was not the only participant in the
underlying crime, if established by the defendant by a preponderance
of the evidence, it is a defense that the defendant:
**1298
(Cite
as: 132 Wash.2d 852, *861 , 940 P.2d 1293,
**1298)
|
(i)
Did not commit the homicidal act or in any way solicit, request,
command, importune, cause, or aid the commission thereof; and
(ii) Was not armed with a deadly weapon, or any instrument, article,
or substance readily capable of causing death or serious physical
injury; and
(iii) Had no reasonable grounds to believe that any other participant
was armed with such a weapon, instrument, article, or substance;
and
(iv) Had no reasonable grounds to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury.
(2) Murder in the first degree is a class A felony.
(Cite
as: 132 Wash.2d 852, *861, 940 P.2d 1293, **1298)
|
9A.48.020. Arson in the first degree.
(1) A person is guilty of arson in the first degree if he knowingly
and maliciously:
(a) Causes a fire or explosion which is manifestly dangerous to any
human life, including firemen; or
(b) Causes a fire or explosion which damages a dwelling; or
(c) Causes a fire or explosion in any building in which there shall
be at the time a human being who is not a participant in the crime;
or
(d) Causes a fire or explosion on property valued at ten thousand
dollars or more with intent to collect insurance proceeds.
(2) Arson in the first degree is a class A felony.
*862
(Cite
as: 132 Wash.2d 852, *862, 940 P.2d 1293, **1298)
|
9A.20.021. Maximum sentences for crimes committed July 1, 1984, and
after
(1) Felony. No person convicted of a classified felony shall be
punished by confinement or fine exceeding the following:
(a) For a Class A felony, by confinement in a state correctional
institution for a term of life imprisonment, or by a fine in an
amount fixed by the court of fifty thousand dollars, or by both such
confinement and fine;
(b) For a class B felony, by confinement in a state correctional
institution or a term of ten years, or by a fine in an amount fixed
by the court of twenty thousand dollars, or by such confinement and
fine;
(c)
For a class C felony, by confinement in a state correctional
institution for five years, or by a fine in an amount fixed by the
court of ten thousand dollars, or by both such confinement and
fine.
(2) Gross misdemeanor. Every person convicted of a gross misdemeanor
defined in Title 9A RCW shall be punished by the imprisonment in the
county jail for a maximum term fixed by the court of not more than
one year, or by a fine in an amount fixed by the court of not more
than five thousand dollars, or by both such imprisonment and
fine.
(3) Misdemeanor. Every person convicted of a misdemeanor defined in
Title 9A RCW shall be punished by imprisonment in the county jail for
a maximum term fixed by the court of not more than ninety days, or by
a fine in an amount fixed by the court of not more than one thousand
dollars, or by both such imprisonment and fine.
(4) This section applies to only those crimes committed on or after
July 1, 1984.
6. Violations of these statutes are felonies under Washington state
law. These statutes were the duly enacted laws of the State of
Washington at the time the offenses were committed, at the time the
Informations were filed, and are now in full force.
7. The Statute of Limitations on prosecuting these offenses
*863
(Cite
as: 132 Wash.2d 852, *863, 940 P.2d 1293, **1298)
|
is
Revised
Code of Washington 9A.04.080
which states as follows:
Prosecutions for the offenses of murder, and arson where death
ensues, may be commenced at any period after the commission of the
offense, for offenses the punishment of which may be imprisonment in
a state correctional institution, committed by any public officer in
connection with the duties of his office or
**1299
(Cite
as: 132 Wash.2d 852, *863, 940 P.2d 1293, **1299)
|
constituting a breach of his public duty or a violation of his oath
of office, and arson where death does not ensue, within ten years
after their commission; for violations of RCW
9A.44.070,
9A.44.100(1)(b),
within seven years after their commission; for violation of
RCW
9A.82.060
or 9A.82.080,
within seven years after their commission; for bigamy, within three
years of the time specified in RCW
9A.64.010;
for all other offenses the punishment of which may be imprisonment in
the state correctional institution, within three years after their
commission; two years for gross misdemeanors, and for all other
offenses, within one year after their commission: Provided, That any
length of time during which the party charged was not usually and
publicly resident within this state shall not be reckoned within the
one, two, three, five, seven, and ten years respectively: And further
provided, That where an indictment has been found, or complaint or an
information filed, within the time limited for the commencement of a
criminal action, if the indictment, complaint or information be set
aside.
8. I have reviewed the facts of these offenses and attest that the
allegations in the offenses are not time barred.
9. The Information charges that the defendant
Martin Pang, together with another, in King County, Washington on or
about January 5, 1995, while committing or attempting to commit the
crime of Arson in the First Degree, and in the course of and in
furtherance of said crime and in immediate flight therefrom, did
cause the deaths of Lieutenant Walter Kilgore, Lieutenant Gregory A.
Shoemaker, Firefighter James T. Brown, and Firefighter Randall R.
Terlicker.
10. According to the Certification for Determination of Probable
Cause filed in this case the Seattle Fire Department responded to a
fire on January 5, 1995, at the Mary Pang
*864
(Cite
as: 132 Wash.2d 852, *864, 940 P.2d 1293, **1299)
|
Products warehouse in Seattle, King County, Washington. While
attempting to extinguish the fire, several firefighters entered the
first floor of the engulfed warehouse. Without warning, the floor
collapsed, dropping the firefighters to the sub-basement. Some of the
firefighters were able to escape the building--four were not.
Lieutenant Walter D. Kilgore, Lieutenant Gregory A. Shoemaker,
Firefighter James T. Brown, and Firefighter Randall R. Terlicker died
in the fire. The King County Medical Examiner has determined that
Lieutenant Shoemaker died from smoke inhalation, and the other three
died from suffocation.
On December 13, 1994, Special Agent Sheryl Bishop of the United
States Bureau of Alcohol, Tobacco and Firearms ("ATF") was contacted
by a citizen/witness who told her that Mary Pang's business, located
in the warehouse, was in decline, and that the
warehouse was to be "torched" sometime between December 16, 1994 and
December 18, 1994.
On December 14, 1994, [Agent] Bishop met with another witness
who stated that on several occasions in the month prior to December
14, 1994, the defendant told the witness that the warehouse was going
to burn down and advised the witness to get personal items out of the
warehouse. On other occasions during the month, the defendant told
the witness how the warehouse would be burned down. His scenarios of
how it would happen, which the witness diagrammed for [Agent]
Bishop, almost exactly described how the fire actually occurred.
On another occasion, in the month prior to the fire, the defendant
spoke with yet another witness and cryptically suggested the witness
remove personal items from the warehouse. That witness also helped
the defendant remove the defendant's personal items from the
warehouse and transport them to storage lockers that he had rented on
November 11, 1994.
On January 21, 1995, a search warrant was served on the defendant's
storage lockers. Inside the lockers, investigators found many
personal items belonging to the defendant, including photographs,
trophies and awards, family mementos, and financial records. The
investigators, based on their training and experience, indicate that
persons who intend to burn down **1300
(Cite
as: 132 Wash.2d 852, *864, 940 P.2d 1293, **1300)
|
their homes or businesses often remove items
*865
(Cite
as: 132 Wash.2d 852, *865, 940 P.2d 1293, **1300)
|
which cannot be replaced, such as photographs and personal momentos.
In December 1994, the defendant took a close
friend and confidant to the warehouse. The defendant told the witness
that the business (Mary Pang's Food Products, Inc.) had lost major
clients and was not doing well. He complained that his parents were
old and feeble, yet would not sell the business. He went on to tell
the witness that the warehouse would burn down in the next month, and
that it would look like transients set the fire.
Yet another witness and the defendant have been friends for about six
years. During the summer of 1994, the defendant told the witness that
he would like to have the business burn, and that it would go up like
a tinderbox. The defendant also said that he thought about doing it.
The defendant also indicated to the witness that if the business
burned down "it would kill my parents."
On numerous other occasions over the last six years, the defendant
has told friends of his that the warehouse would be burned down.
These friends have detailed the defendant's statements in their
statements given to investigators. Several witnesses have given
detailed, independent statements that the defendant asked them to
burn the Mary Pang warehouse, as recently as last year.
During conversations with witnesses immediately after the fire, the
defendant told them how a person he described as a transient must
have lighted the fire in the warehouse. The defendant's description
of how the fire must have been lighted describes
how the fire actually occurred and was made prior to the expert's
determination that the fire had been deliberately set.
After the fire, the defendant told a witness his scenarios of how the
fire must have been lighted. The witness then gave the information to
homicide investigators. The fire investigators assigned to identify
the cause of the fire had just begun sifting the remains of the
business. They did not reach, or announce, their conclusions as to
how the fire started until several days after the defendant described
his scenarios of how the fire must have been lighted. The fire
investigators were *866
(Cite
as: 132 Wash.2d 852, *866, 940 P.2d 1293, **1300)
|
not
told by homicide investigators about the scenarios that the defendant
described to the witness.
The day after the fire a different witness had a conversation with
the defendant in which the defendant asked the witness if a transient
had started the fire at the warehouse would it be considered
homicide? The defendant also attempted to throw suspicions on his
ex-wife Rise Pang and her current husband, Joseph. The witness
noticed throughout their conversation that the defendant appeared
very nervous and worried about criminal charges.
The defendant later telephoned this witness and said that he had been
"framed" for the fire and was going to take a "long vacation". The
defendant began crying, and told the witness that he (defendant)
would never see his friends again. The defendant continued to claim
that he had been set up by Joseph, and then said to the witness, in a
very strained voice, "Nobody was supposed to get
hurt, the building was just supposed to burn down."
The day after the fire, the ATF National Response Team, in
conjunction with the Seattle Fire Department's Fire Investigation
Unit, began investigating what caused the warehouse fire. The ATF
National Response Team is composed of ATF agents who are Certified
Fire Investigators. They have become Certified Fire Investigators by
completing hundreds of hours of training in determining the cause and
origin of fires. Each Certified Fire Investigator has personally
investigated, in order to determine the cause and origin of fires,
over one hundred fire scenes.
Based upon the investigators' examination of the warehouse fire
scene, including burn patterns, liquids and physical evidence, it has
been determined that this fire was deliberately set.
The investigators also learned that the arsonist(s) entered the
basement area either by using a key or entering a code into the alarm
keypad. Firefighters who were first on the scene found that all
exteriors **1301
(Cite
as: 132 Wash.2d 852, *866, 940 P.2d 1293, **1301)
|
[sic] doors not secured by the keypad were locked.
Once inside the pallets area where the fire was set, the
investigators found that the interior door leads to an exterior
*867
(Cite
as: 132 Wash.2d 852, *867, 940 P.2d 1293, **1301)
|
door which also does not have a keypad. This interior door's padlock
had been pried off, as if to look like the fire-setter had entered
the pallet area through the un-alarmed doors. Additionally, a
gasoline can which did not belong to the warehouse was found in
the room between these two doors. However, a
closer examination showed that the pry marks on the interior door
were made from the inside, not the outside, as someone gaining entry
through un-alarmed doors from the outside would do. And, as stated
above, this mirrors the defendant's statements to witnesses about how
a transient was responsible for the fire that burned the
warehouse.
In addition, the investigators found that the person who lit this
fire worked rapidly. The last person to leave the warehouse basement
reports leaving at approximately 6:30 p.m. He saw nothing to indicate
a fire. A witness whose band rented space in the warehouse basement,
entered the basement shortly before 7:00 p.m. and saw thick smoke. He
removed some items from his space, then ran to a telephone booth to
call 911. When fire units arrived shortly thereafter, the basement
area was fully engulfed in flames. The investigators estimate, based
on training and experience, that it took approximately twenty minutes
from the time this fire was lit to the time the basement was fully
engulfed. This indicates that the arsonist was probably familiar with
the warehouse and the occupants' schedules.
The investigators have interviewed dozens of defendant's friends and
business associates. Through these interviews the investigators have
learned that the defendant has, for the most part, been supported by
his parents. Other than a time spent working for his parent's
business, the defendant has been frequently unemployed. His parents
paid for defendant's short-lived auto racing career,
and were helping support him while he pursued an
acting career. They gave him gifts of money on all major holidays,
paid for his cars; paid for his house and made his child support
payments. The defendant had access to, and used checks and credit
cards belonging to the business.
Additionally, as described above, the once-successful business, in
the last several years, had been failing. Several major accounts,
such as Safeway Stores, had been lost. Suppliers
*868
(Cite
as: 132 Wash.2d 852, *868, 940 P.2d 1293, **1301)
|
indicate that checks written on company accounts, some for as little
as $150 would bounce. When that happened the suppliers would have to
contact the defendant's parents, who would provide a personal check
to cover the amounts owed. The defendant repeatedly expressed to
friends and associates his frustration with both the business's
decline as well as his parents' continual refusal to sell it or
relinquish control to him. The defendant's parents have two children,
the defendant and his sister Marlys. Marlys is estranged from the
family and has not spoken with them for many years. Harry and Mary
Pang, both in their 70's, have no life insurance, their policy having
recently lapsed. However, the business, although failing, was well
insured. Additionally, the defendant had expressed to various friends
over years his plans to use the warehouse property, valued at over
$400,000 for his own business.
According to statements made by the defendant to numerous witnesses,
he fled the state to avoid prosecution in this matter. One witness
has given a statement that the defendant was
researching countries without extradition treaties with the United
States.
11. On March 3, 1995, the defendant was charged in the above King
County Superior Court cause with the crimes of Murder in the First
Degree, Counts I, II, III, and IV, and a warrant was issued for his
arrest setting bail in the amount of $5,000,000.00. Martin Pang is
identified as an Asian male; Date of Birth: November 12, 1955; Place
of Birth: Hong Kong; Citizenship: United States citizen; Height:
6'0"; Weight 175 lbs [sic]; Black hair; Brown eyes; Scar
below his throat.
**1302
(Cite
as: 132 Wash.2d 852, *868, 940 P.2d 1293, **1302)
|
12.
On March 16, 1995, the defendant was arrested in Rio de Janeiro,
Brazil, and is currently being held in that jurisdiction pending
extradition proceedings. On March 17, 1995, an Amended Information
was filed in the above cause adding an additional charge of Arson in
the First Degree, Count V.
13. The defendant fled the United States to avoid prosecution and was
arrested by Brazilian authorities in Rio De [sic] Janeiro on
March 16, 1995. Two agents from the United States Federal Bureau of
Investigation accompanied Brazilian authorities during the arrest.
The defendant immediately initiated conversation with Special Agent
Schoenlein enroute *869
(Cite
as: 132 Wash.2d 852, *869, 940 P.2d 1293, **1302)
|
to
the Brazilian police station. Agent Schoenlein answered questions the
defendant had about extradition and the defendant then initiated
conversation about the arson of Mary Pang's in Seattle. Agent
Schoenlein advised the defendant that they could
discuss those matters later at the police
station if the defendant chose to do so. Agent Schoenlein also
advised the defendant of his Miranda% rights. The defendant told
Agent Schoenlein that he wanted to waive his Miranda rights to tell
his "side of the story".
14. At the police station the defendant once again indicated his
desire to speak with Agents Schoenlein and Burroughs and he signed a
form that listed and waived his Miranda rights. After conversation in
which the defendant attempted unsuccessfully to convince Agents
Schoenlein and Burroughs he had nothing to do with the arson the
defendant was advised by the agents to tell the truth. At that point
the defendant admitted starting the fire on January 5, 1995 at the
Mary Pang business. The defendant gave a four page statement
describing his actions which was written for him by Agent Schoenlein.
The defendant read and initialed each page of the handwritten
statement and signed the statement.
15. I have attached a true copy of the Information and Certification
for Determination of Probable Cause in the case of State of
Washington vs. Martin Shaw Pang, King County Superior Court Cause
Number 95-1-00473-0 as Exhibit 1. I have also attached a true copy of
the Motion and Order Determining the Existence of Probable Cause,
Directing Issuance of Warrant and Fixing Bail as Exhibit 2. The
Deputy Clerk of the King County Superior Court Clerk's Office is able
to make this certification because he is an officer of the King
County Superior Court and the original document
is maintained in a file in the King County Superior Court Clerk's
Office.
16. I have also attached a true copy of the Arrest Warrant and this
is attached as Exhibit 3. In this jurisdiction it is the practice
that the Clerk of the Superior Court issues the arrest warrant
following the filing of the court's order to issue the warrant (refer
to above Exhibit 2). The Chief of the Seattle Police Department is
able to make this certification of the arrest warrant as his
department maintains records of unserved [sic] arrest
warrants in Seattle.
*870
(Cite
as: 132 Wash.2d 852, *870, 940 P.2d 1293, **1302)
|
17.
I have also attached a true copy of the Motion, Certification and
Order Permitting Filing of an Amended Information as Exhibit 4.
18. I have also attached a true copy of the Amended Information as
Exhibit 5.
19. I have also attached to this affidavit the statements of the
following witnesses:
Affidavit of Kim Kirkendall, Exhibit 6;
Affidavit of Kevin C. Hook, Exhibit 7;
Affidavit of Richard D. Binzer, Exhibit 8;
Affidavit of Paul H. Bentley, Exhibit 9;
Affidavit of Wayne E. McFall, Exhibit 10;
Affidavit of Karlyn Byham, Exhibit 11;
Affidavit of Robert S. King, Exhibit 12;
Affidavit of Cleave Odegard, Exhibit 13;
Affidavit of Marjorie G. Newman, Exhibit 14;
Affidavit of Rise Pang, Exhibit 15;
Affidavit of Charles T. Graves, Exhibit 16;
Affidavit of Richard C. Harruff, Exhibit 17;
Affidavit of Terri Haddix, Exhibit 18;
**1303
(Cite
as: 132 Wash.2d 852, *870, 940 P.2d 1293, **1303)
|
Affidavit of Michael J. Shannon, Exhibit 19;
Affidavit of Gary D. Schoenlein, Exhibit 20;
20. The above affidavits, Exhibit 6 through 20, were signed and sworn
before a Notary Public who is authorized to administer an oath. I
have thoroughly reviewed these statements and the attachments to
them, and attest that the evidence indicates that Martin Pang is
guilty of the offenses charged in the Amended Information.
[s] Marilyn B. Brenneman
MARILYN B. BRENNEMAN
Senior Deputy Prosecuting Attorney
SUBSCRIBED and SWORN to before me
this 6th day of April, 1995.
*871
(Cite
as: 132 Wash.2d 852, *871, 940 P.2d 1293, **1303)
|
[s] Brian D. Gain
BRIAN D. GAIN
SUPERIOR COURT JUDGE
KING COUNTY SUPERIOR COURT
I, NORM MALENG, Prosecuting Attorney for King County, Washington, do
hereby certify that Marilyn B. Brenneman is a duly appointed Senior
Deputy Prosecuting Attorney for King County, Washington.
SIGNED this 6th day of April, 1995.
[Seal.]
[s] Norm Maleng
NORM MALENG
King County Prosecuting Attorney [FN8]
|
FN8.
Id. at 1-17 (exhibits omitted) (emphasis added).
|
This affidavit was amended by a Supplemental Affidavit in Support of
Request for Extradition on July 21, 1995. It states:
STATE OF WASHINGTON
COUNTY OF KING
I, TIMOTHY A. BRADSHAW, being duly sworn, do hereby depose and
say:
1. I am a citizen of the United States and a resident of the State of
Washington.
2. I have been engaged in the practice of law in the State of
Washington since 1986. 3. Since September 01,
1988 I have been employed by the King County Prosecuting Attorney's
Office as a Deputy Prosecuting Attorney. I was appointed Senior
Deputy Prosecuting Attorney on January 01, 1994. My duties are to
prosecute persons charged with criminal violations of the State of
Washington. In the course of such prosecutions, I have become
knowledgeable about the state criminal statutes and case law,
including those related to the crime of Murder in the First Degree
and Arson in the First Degree, and have prosecuted both Murder and
Arson cases.
*872
(Cite
as: 132 Wash.2d 852, *872, 940 P.2d 1293, **1303)
|
4.
My co-counsel, Marilyn Brenneman, and I are responsible for
prosecuting the case of State of Washington vs. Martin Shaw Pang,
King County Superior Court Cause Number 95-1-00473-0. I am wholly
familiar with the evidence and charges in this case filed by Ms.
Brenneman and myself [sic], and with the contents of the
relevant files of the King County Superior Court and the Office of
the King County Prosecuting Attorney. I am additionally familiar with
all previous submissions, affidavits, statutes, and exhibits filed by
Marilyn Brenneman in support of our request for extradition,
5. Co-counsel Brenneman is currently out of the State of Washington
attending her father's funeral and family duties.
6. On April 6, 1995, my co-counsel, Marilyn Brenneman, signed an
affidavit in support of request for extradition of Martin Shaw Pang
to stand trial for four counts of Murder in the first degree and one
count of Arson in the first degree.
7. It is my understanding that the certification of the statute has
been challenged by the defense and that minor amendments made to the
murder statute in 1990 were omitted. The omissions do not bear
directly on the specific charges against Martin Shaw Pang. However,
although these statutes were duly certified and authenticated in the
body of the prior affidavit in support of the request for
extradition, I am providing this supplemental affidavit to provide
the court with a true and correct copy of current statutory language
for Murder in the first degree, pursuant to Article IX, item 2, of
the United States/Brazil extradition treaty. The text
**1304
(Cite
as: 132 Wash.2d 852, *872, 940 P.2d 1293, **1304)
|
of
all applicable statutes/legislation, the text of the appropriate
statute of limitations, and the applicable penalties are attached as
Supplemental Exhibit A, which I have also signed and dated.
8. I know of no other pertinent omissions, clerical or otherwise, in
the affidavits and information previously provided in support of
extradition of Martin Shaw Pang.
[s] Timothy A. Bradshaw
TIMOTHY A. BRADSHAW
Senior Deputy Prosecuting Attorney
SUBSCRIBED and SWORN to before me
*873
(Cite
as: 132 Wash.2d 852, *873, 940 P.2d 1293, **1304)
|
this 21st day of July, 1995. [s] G. T.
Mattson
GEORGE T. MATTSON,
Superior Court Judge
King County Superior Court
State of Washington
United States [FN9]
|
FN9.
Supplemental Affidavit in Support of Request for
Extradition, King County Cause Number 95-1-00473-0, at 1-3
(attachments omitted).
|
On December 18, 1995, the Federal Supreme Court of Brazil granted
extradition on the single count of arson in the first degree, but not
on the four counts of murder in the first degree. [FN10] A
summary provided by the Federal Supreme Court states:
|
FN10.
See Federal Supreme Court of Brazil decision on the
Extradition, Number 00006541/120. Opinion Appendix "A."
English translation from original Portuguese. See Clerk's
Papers at 159-211 for opinion in Portuguese.
|
Summary.
1. Extradition.
2. U.S. citizen charged, by the Superior Court of King County,
Seattle, Washington, U.S.A., as the perpetrator of four acts of
murder in the first degree "by committing and attempting to commit
the crime of arson in the first degree and in the course of and in
furtherance of such crime, as well as in immediate flight therefrom."
A charge was later added, accusing the person being sought of arson
in the first degree as well, a class A felony.
3. Inasmuch as the acts are covered under two distinct offenses, the
majority of the Court decided, for purposes of the extradition, that
the case is one of arson in the first degree under the law of the
requesting State, corresponding in the Brazilian Penal Code to the
crime of arson defined in Article 250, combined with its Paragraph 1,
Section I, and with Article 258 of that same Code because of the
resulting death of four persons.
*874
(Cite
as: 132 Wash.2d 852, *874, 940 P.2d 1293, **1304)
|
4.
Consequently, the decision by the majority of the Court did not hold
that the situation as described was one of arson in the first degree,
plus four separate first-degree murders.
5. Therefore, the Court, by majority vote, granted the requested
extradition in part, for the crime of arson in the first degree,
resulting in four deaths and the consequences thereof under U.S. law.
However, the Court did so without the additional charge of four
counts of first-degree murder.
6. The minority of the Court, as expressed in the opinion of the
Rapporteur, granted the extradition under the
terms of the petition by the Requesting State, so that the person
being sought may be tried and judged according to the charge and
addendum, under U.S. law. It did not stipulate any reservation.
7. Lastly, the decision of the Court did not include any restriction
as to the possibility of life imprisonment.
DECISION
The
case files having been reviewed and the case stated and discussed,
the Justices of the Federal Supreme Court, meeting in plenary session
and acting by majority vote in accordance with the minutes of the
judgment and the transcript thereof, grants the extradition in part,
on the grounds that the charges of arson in the first degree and
murder in the first degree, as described in the extradition request,
correspond in Brazil to the single crime that is defined in the main
part of Article 250 and in Article 258 of the Brazilian Penal Code.
Therefore, they exclude from the grant of extradition the charges of
**1305
(Cite
as: 132 Wash.2d 852, *874, 940 P.2d 1293, **1305)
|
murder in the first degree. Also by majority vote, the Court decided
to reject the need to condition surrender of the person sought on a
pledge to commute life imprisonment to a maximum of 30 years
imprisonment.
Brasilia, December 18, 1995
[Signatures]
Sepulveda Pertence, Chief Justice
Neri da Silveira, Rapporteur [FN11]
|
FN11.
Clerk's Papers at 321-23 (emphasis added).
|
*875
(Cite
as: 132 Wash.2d 852, *875, 940 P.2d 1293, **1305)
|
The
United States through its Embassy on February 22, 1996 requested
written authorization from the Brazilian Ministry of Foreign Affairs
to prosecute Petitioner Pang "in accordance with the revised code of
Washington, Title 9A, Sections 48.020 and 32.030(1)(c), which provide
for punishment of an individual who commits arson, and in the course
of that crime, causes the death of a person who was not a participant
in the crime." [FN12] The letter, which mentioned "arson,"
but did not mention "murder," stated:
|
FN12.
Letter from the United States Embassy to the Brazil Ministry
of Foreign Affairs dated February 22, 1996. RCW
9A.32.030(1)(c)
is the Washington statute relating to murder in the first
degree.
|
The Government of the United States respectfully requests that,
pursuant to Article XXI of the Extradition Treaty between Brazil and
the United States of America, done at Rio de Janeiro on January 13,
1961, or any other legal basis, the Government of the Federal
Republic of Brazil provide written authorization, to the United
States to prosecute MARTIN SHAW PANG in accordance with the revised
code of Washington, Title 9A, Sections 48.020 and 32.030(1)(C),
which provide for the punishment of an
individual who commits arson, and in the course of that crime, causes
the death of a person who was not a participant in the crime. As
recognized by the Brazilian Supreme Court, these provisions of the
Revised Code of Washington criminalize the same conduct as described
in Sections 250 and 258 of the Brazilian Penal Code.
[FN13]
By letter of February 27, 1996 the Brazil Ministry of Foreign Affairs
denied the request, indicating it did not have jurisdiction to
interfere with the extradition order of the Federal Supreme Court of
Brazil. [FN14] After reiterating a portion of the ruling of
the Federal Supreme Court, the letter read:
|
FN14.
Letter from the Brazil Ministry of Foreign Affairs to the
United States Embassy dated February 27, 1996.
|
*876
(Cite
as: 132 Wash.2d 852, *876, 940 P.2d 1293, **1305)
|
The
Ministry of Foreign Affairs points out to the Embassy of the United
States of America that, pursuant to the provisions of the Federal
Constitution on the separation of powers in the government, the
Executive Branch does not have jurisdiction to interpret or establish
limits regarding the scope of the decision
handed down by the Judicial Branch, which has exclusive jurisdiction
with respect to any interpretation of judicial acts.
[FN15]
|
FN15.
Id. (italics ours).
|
On February 28, 1996, Petitioner Martin Shaw Pang was surrendered by
Brazil into custody of United States of America authorities. He was
immediately returned to the United States and the State of
Washington. [FN16]
|
FN16.
See Record of Surrender of Person Being Extradited, No.
02/96, Clerk's Papers at 362-63.
|
The United States appealed to the Federal Supreme Court of Brazil
seeking clarification of the extradition order. [FN17] The
appeal states in its Summary:
|
FN17.
See Request for Declaration [sic: Clarification]
(Embargo Declaracao [sic] ).
|
By granting extradition only on the basis of the Washington arson
statute, the Brazilian Supreme Court's decision
in the case of Martin Shaw Pang would have the unfortunate effect of
preventing United States authorities from prosecuting Mr. Pang for
the consequences of the arson; namely, the resulting deaths. The
arson statute in the State of Washington is equivalent only to
Article 250 (simple arson) of the Brazil Penal code; it penalizes
only the arson itself, but not the resulting deaths. As such, the
Washington arson **1306
(Cite
as: 132 Wash.2d 852, *876, 940 P.2d 1293, **1306)
|
does not punish the crime in the same way that Article 258
(aggravated arson) of the Brazilian Penal Code would. Rather in the
State of Washington, the only law that truly corresponds to Article
258, by taking into proper consideration the deaths of the four
firefighters, is the "felony murder" law (which, although codified
within the first degree homicide statute, is different from the other
first degree homicides because it does not require premeditated
intent to kill). Accordingly, the approval of extradition only for
arson would be equivalent to granting extradition only for the
offense punished under Article 250, but not the offense punished
under Article 258.
*877
(Cite
as: 132 Wash.2d 852, *877, 940 P.2d 1293, **1306)
|
Such limitation would be significant because of the potentially
minimal sentence [Mr.] Pang could receive if prosecuted only
under Washington arson statute. Although the crime of arson
theoretically carries a punishment of life in prison, because of the
existence of mandatory sentencing guidelines under Washington State
law, the presumptive sentence for [Mr.] Pang would be only 21
to 27 months in prison. Such a penalty for a crime in which four men
lost their lives would be grossly unfair and
disproportionate to the gravity of the offense. It is for this reason
that the Government of the United States and the people of the State
of Washington are so concerned about the way in which the Court's
decision is framed. It would be extremely unfortunate if a merely
technical difference in our respective legal systems were to result
in a severe injustice. The United States therefore respectfully
requests that the Court clarify its ruling, so as to permit the
prosecution of Pang for the two Washington State offenses--arson and
felony murder--that most closely correspond to Article 250 and 258 of
the Brazilian Penal Code. [FN18]
|
FN18.
State's Answer to Motion for Discretionary Review to the
Supreme Court, filed January 8, 1997, Exhibit K.
|
On March 27, 1996, the Federal Supreme Court rejected the appeal,
holding that its extradition order unambiguously excluded the charges
of murder in the first degree from the grant of extradition.
[FN19] The court stated:
|
FN19.
See Appeal for Clarification,--Extradition No. 00006545/122,
Clerk's Papers at 312-316. English translation from the
original Portuguese.
|
SUMMARY. [1.] Extradition. Appeal for clarification.
2. U.S. citizen charged, in the State of
Washington, U.S.A., with the crime of arson in the first degree and
with four acts of murder in the first degree, the victims being
firefighters who assisted in fighting the fire.
3. By majority of votes, this Court, inasmuch as the acts are covered
under two distinct offenses, decided that the case is one of arson in
the first degree under the law of the requesting State, corresponding
in the Brazilian Penal Code to the crime of arson as defined in
Article 250, combined with its *878
(Cite
as: 132 Wash.2d 852, *878, 940 P.2d 1293, **1306)
|
Paragraph 2, Section I, and with Article 258 of that same Code
because of the resulting death of four persons.
4. Appeal for clarification by the requesting State arguing the
existence of contradictions and obscurities in the decision.
5. It is alleged in the appeal for clarification that the facts as
set forth in the request for extradition describe a case of arson
that resulted in the deaths of four firefighters; however, the
definition of the offense adopted in the decision now being appealed
does not encompass the resulting deaths, only the threat against the
life of any person or firefighter. [The decision held that]
the crime of arson in the first degree, according to the Revised Code
of Washington, is equivalent solely to the crime of arson in Article
250 of the Brazilian Penal Code and does not include the hypothesis
found in Article 258 of said Code. The appeal for clarification
further argues that the crime of arson in the first degree and the
crime of murder in the first degree (termed
"felony murder") are considered by the Revised
Code of Washington as being independent criminal offenses and that
the latter is equivalent to the crime described in Article 258 of the
Brazilian Penal Code. It is also alleged in the
**1307
(Cite
as: 132 Wash.2d 852, *878, 940 P.2d 1293, **1307)
|
appeal that if the terms of the decision now being appealed were
upheld, the requesting State would be unable to prosecute and try the
person whose extradition is being sought for the deaths resulting
from the fire.
6. Regulatory and procedural limits on appeals for clarification
according to Federal Supreme Court case law. Appeals for
clarification must not infringe upon the judgment. The greater degree
of flexibility that is allowed them, as an exception in cases of
obvious material error or manifest nullity of the decision, does not
justify their inappropriate use to challenge the correctness of a
judgment on the merits and to achieve its modification.
7. The absence of any doubt or obscurity as regards the denial of the
extradition with respect to the charges of the four crimes of murder
in the first degree is demonstrated in the terms of the decision,
which did not consider the facts, as described in the request, as
characterizing independent crimes of arson in the first degree and
murder in the first degree. The extradition was granted without any
restrictions as to the possibility of life imprisonment; but only on
the crime of first-*879
(Cite
as: 132 Wash.2d 852, *879, 940 P.2d 1293, **1307)
|
degree arson with the results it produced (four deaths) and all the
consequences thereof pursuant to United States law without, however,
the added charge of four counts of murder in the
first degree.
8. Nor is there any contradiction in the decision under appeal. The
contradiction would have to have arisen unexpectedly among the parts
of the judgment itself, in the logical composition thereof. The
position of the majority of the Court, reflected in the decision, did
not acknowledge the occurrence, in the case at hand, of independent
crimes but only the crime of arson in the first degree with its
results and consequences (four deaths) according to U.S. law. It
should be noted, furthermore, that Article 258 of the Brazilian Penal
Code does not define an independent crime other than the one
described in Article 250 thereof. Only the results described therein
(physical injury or death) were considered by the legislator
[sic] to serve as qualifying circumstances in crimes of
common peril, including arson, aggravating the penalty.
9. Likewise there is no mistake or obvious error in the decision now
being appealed. The decision resulted from a thorough discussion by
the members of this Court that took the facts and their legal context
into account.
10. The Federal Supreme Court is not insensitive to the serious
concerns expressed in the appeal for clarification as regards
potential restrictions on the amount of the penalty that could be
imposed in the requesting State on the person whose extradition is
sought, by virtue of the limits established in the granting of the
request on a partial basis only. However, it is not
appropriate in a decision on extradition to give
primary consideration in the requested State to the aspect of the
cases involving the amount of the penalty that the requesting State
may, under its legislation, impose on the person being sought, unless
there is a specific restriction in the requested State, as in Brazil
with the rejection of the death penalty.
11. Apart from that reservation, given the limited scope of the
appeal for clarification, it is not possible in the appeal to
evaluate the merits of the controversy regarding the penalties which
the requesting State might, by application of its domestic laws,
impose on the person whose extradition is being
*880
(Cite
as: 132 Wash.2d 852, *880 , 940 P.2d 1293,
**1307)
|
sought. This position is not ascribable to a lack of interest on the
part of the Court as regards the need for cooperation on the
international level between the governments of different countries
for purposes of combating crime. Rather, it results from the legal
impossibility, under Brazilian procedural law, to reconsider a matter
already discussed in the court record of the judgment on the
extradition.
12. Appeal for clarification rejected.
DECISION
The
case files having been reviewed and the case stated and discussed,
the Justices of the Federal Supreme Court, meeting in plenary session
and in accordance with the minutes of the judgment and the transcript
**1308
(Cite
as: 132 Wash.2d 852, *880 , 940 P.2d 1293,
**1308)
|
thereof, unanimously agree to deny the appeal.
(Cite
as: 132 Wash.2d 852, *880, 940 P.2d 1293, **1308)
|
Brasilia, March 27, 1996
[Signatures]
Sepulveda Pertence, Chief Justice
Neri da Silveira, Rapporteur [FN20]
|
FN20.
Id. at 312-16 (italics ours).
|
The King County Prosecuting Attorney issued a statement on February
29, 1996 asserting the opinion of the Federal Supreme Court of Brazil
is ambiguous. The statement, contrary to the record, also asserts
certain promises or agreements by Brazilian officials to waive
objection to prosecution of Petitioner Pang for murder in the first
degree. The statement reads:
Statement of King County Prosecuting Attorney Norm Maleng on the
Return of Martin Pang:
At this very moment, Martin Pang is airborne--he is on the final leg
of his trip back to Seattle, where he will stand trial for the crime
that killed four firefighters.
As of today, the opinion from the Brazilian Supreme Court
*881
(Cite
as: 132 Wash.2d 852, *881, 940 P.2d 1293, **1308)
|
does not clearly authorize the prosecution of Martin Pang for felony
murder. The opinion must be clarified before we proceed.
Our fight to clarify this decision continues on two fronts:
First, the State Department will file tomorrow a motion asking the
Brazilian Supreme Court to reconsider and clarify its ruling;
Second, Secretary of State Warren Christopher, who arrives in Brazil
tomorrow, will personally ask the Brazilian government to extradite
Martin Pang without restriction.
Let me outline some recent events in the case:
* Attorney General Janet Reno called her counterpart in Brazil,
Justice Minister Nelson Jobiem [sic], two weeks ago. Minister
Jobiem [sic] assured the United States that his government
would grant our request for extradition of Martin Pang without
restrictions;
* Last month a delegation from the United States, led by Ambassador
Lavitsky [sic:] [Levitsky], met with the Brazilian
Minister of Justice and reached agreement in principle that Brazil
would waive any objections to the full prosecution of Martin Pang
under Washington law;
The U.S. delegation worked together with Brazilian officials to draft
the promised waiver and diplomatic note.
Our delegation left Brazil with the assurance that Pang would be
extradited with no restrictions.
* Despite these assurances, we have been waiting for action on the
waiver;
* Last Friday, the Brazilian Supreme Court issued its written opinion
on the case. The court's opinion is ambiguous.
Some
portions of the summary opinion seem to limit the prosecution to a
single count of arson, yet other portions of the summary opinion seem
to defer to the consequences under American law for an arson that
results in death, making the summary ambiguous and in need of
clarification.
That is why the United States will file a motion for reconsideration
tomorrow.
* On Monday, the United States Department of State
*882
(Cite
as: 132 Wash.2d 852, *882, 940 P.2d 1293, **1308)
|
transmitted an official diplomatic note to the government of Brazil,
requesting a specific waiver under the extradition treaty, lifting
all restrictions.
* On Tuesday of this week, the Brazilian government responded,
officially denying the request from the United States.
We have not yet succeeded in our goal to have Martin Pang tried for
felony murder.
I say today what I said two months ago:
This is unjust and unfair.
We have not given up the fight.
Two avenues remain to try and turn this result around:
* First, the United States will file a motion for reconsideration
tomorrow, urging the Supreme Court of Brazil to reconsider and
clarify their opinion.
* Second, Secretary of State Warren Christopher arrives in Brazil on
Friday for **1309
(Cite
as: 132 Wash.2d 852, *882, 940 P.2d 1293, **1309)
|
a
series of meetings with Brazilian officials. The Pang case is
on his agenda.
He will express the strong disappointment of the United States
government and ask that the Executive branch grant the waiver
requested by the United States allowing unrestricted prosecution.
Martin Pang is returning today because we are nearing the end of the
60 day period for his return as required under the treaty.
We have not given up on either the diplomatic or legal avenues to
correct this injustice.
Arraignment will be scheduled within two weeks from today.
[FN21]
|
FN21.
Clerk's Papers at 131-32 (emphasis added).
|
On April 5, 1996 the King County Prosecuting Attorney filed in the
King County Superior Court the Affidavit of Timothy A. Bradshaw in
Support of the State's Response to Motion to Dismiss which
states:
*883
(Cite
as: 132 Wash.2d 852, *883, 940 P.2d 1293, **1309)
|
STATE OF WASHINGTON
COUNTY OF KING
I, TIMOTHY A. BRADSHAW, Senior Deputy Prosecuting Attorney for King
County, hereby declares and says:
1. I am familiar with the facts in this matter. As one of the two
Senior Prosecutors assigned to this case, I have been in routine
contact with the United States attorneys
assigned to this extradition matter of Martin Shaw Pang. I have also
been advised about the actions of the United States government
pertinent to the extradition of the defendant.
2. As a member of the United States delegation to Brazil, I obtained
direct knowledge of Brazilian Jurisprudence and extradition
procedures applicable to the Pang case. The delegation was comprised
of United States Ambassador [Melvyn] Levitski [sic:]
[Levitsky], U.S. Justice Department Attorneys Gregory Stevens
and Thomas Snow, U.S. State Department Legal Advisor Paulo Di Rosa,
and myself.
3. On January 23, 1996, the delegation met personally with the
Brazilian Minister of Justice, Nelson Jobim. In that meeting, the
Minister stated his position, as a representative of the Executive,
on the Pang extradition, and requested (and received) my personal
assurance that [Mr.] Pang would be taken from his country by
March 01, 1996.
4. Justice Minister Jobim stated that Brazil has no objection to our
prosecution of [Mr.] Pang on the charges of Murder and Arson.
Additionally, the Minister told me that "if I were you, I would
prosecute on Murder--The United States system must decide."
5. The United States appealed the decision of the Brazilian Court,
published February 23, 1996. The Request For Declaration
[sic:] [Clarification] (Embargo Declaracao
[sic] ) was filed March 01, 1996 with the Supreme Court of
Brazil, sitting in Brasilia, according to Mr. Di
Rosa, Mr. Steven, and the U.S. Embassy in Brazil.
6. I personally spoke with the Deputy Secretary of Justice for Brazil
on February 29, 1996. The Secretary [of] Justice advised
*884
(Cite
as: 132 Wash.2d 852, *884 , 940 P.2d 1293,
**1309)
|
me,
yet again, that Brazil does not object to the Murder charges.
7. Also on February 29, 1996, the day the defendant was returned to
the United States, a local TV station caught up with Minister Jobim
at the University of Texas Law Center. [Justice Minister]
Jobim stated for the news camera that "[Mr.] Pang's
extradition was granted, he has been returned, and he is now subject
to American Law."
8. On March 27, 1996, The Brazilian Supreme court ruled on the
Embargo de Declaracao. The Court voted unanimously to deny the
request for clarification. The American Embassy of Brazil has
informed us of the following specifics. The Court ruled that its
original decision required no clarification. Several Justices noted
that the decision was procedurally dictated; that is, the Court could
not now address the merits of the case, just the technical issue of
clarification. Several Justices also expressed regret if the Court's
decision is held to prevent [Mr.] Pang's prosecution for the
consequences of his criminal actions.
**1310
(Cite
as: 132 Wash.2d 852, *884 , 940 P.2d 1293,
**1310)
|
Justice Neri [sic] Da Silveira, the Rapporteur for the Pang
case, requested the opinion of the Prosecutor-General Geraldo
Brindeiro at the open-
(Cite
as: 132 Wash.2d 852, *884, 940 P.2d 1293, **1310)
|
court
session. [Mr.] Brindeiro responded that [Mr.] Pang
should be extradited without any restriction for the most comparable
and appropriate charges: Felony Murder. Justice Silveira then
explained the procedural limitations of the current appeal to matters
of clarification--rather than reconsideration of the original
judgment--and that a contradiction does not appear. [Justice]
Silveira maintained, without contradiction from the other nine
Justices, that the Brazilian Court's decision does not prevent
Washington State from trying [Mr.] Pang for the consequences
of his alleged crime, the deaths of four firefighters.
In the same proceeding, Justice Resek [sic] spoke at some
length. [Justice] Resek [sic] noted that the appeal
contained excellent arguments which he would have used were he
Washington State's lawyer. Justice Resek [sic] noted a "grave
incongruence" between what the Court had intended, and what would
apparently happen as a result of the Court's decision. Four
firefighters had died in Seattle, he said, and their deaths must be
taken into consideration in [Mr.] Pang's trial.
*885
(Cite
as: 132 Wash.2d 852, *885, 940 P.2d 1293, **1310)
|
[Justice] Resek [sic] then expressed great concern
about the presumed leniency of [Mr.] Pang's sentence should
he be convicted only of Arson in the First Degree; he noted that the
presumed Brazilian sentence for the same criminal conduct is far
greater that [sic] Washington State's. [Justice]
Resek ended by declaring that he has now decided to advocate for
revamping the entire extradition process in Brazil.
9. While the Court has not provided its written
opinion, A [sic] complete transcription of the court
proceedings is expected after April 16, 1996.
10. I am informed by the Justice and State Departments that
diplomatic efforts are continuing in an effort to obtain the written
consent of the Brazilian executive branch to try the defendant for
the charges he was arraigned on, pursuant to the Brazil/United States
Treaty.
I declare under penalty of perjury under the laws of the State of
Washington that the foregoing is true and correct to the best of my
knowledge.
DATED this 05th day of April, 1996.
[s] Timothy A. Bradshaw
TIMOTHY A. BRADSHAW
WSBA No. 17983 [FN22]
|
FN22.
Affidavit of Timothy A. Bradshaw in Support of State's
Response to Motion to Dismiss, Clerk's Papers at 145-148A
(emphasis added).
|
The affidavit and its content was referred to in at least four
documents submitted to the trial court by the King County Prosecuting
Attorney. [FN23] However, on November
**1311
(Cite
as: 132 Wash.2d 852, *885, 940 P.2d 1293, **1311)
|
12,
1996, the State withdrew the affidavit from the Court's
*886
(Cite
as: 132 Wash.2d 852, *886, 940 P.2d 1293, **1311)
|
consideration, stating that because the "United States, [sic]
has been provided written authorization, a signed document from the
Minister of Justice from Brazil, it's no longer
necessary to attempt to prove a non-objection or acquiescence from
verbal statements.... [W]e'd be happy to withdraw that
affidavit from the Court's consideration on the motion today."
[FN24] Even though this affidavit was previously withdrawn,
it was submitted to the Supreme Court as a supporting document on
January 8, 1997. [FN25]
|
FN23.
See Memorandum in Opposition to Defendant's Alternative
Motion for Dismissal of Counts 1 through 4; and a Writ of
Habeas Corpus, filed April 5, 1996, Clerk's Papers at 133-43
("The Brazilian executive branych [sic] has verbally
waived Brazil's specialty rights under the extradition
treaty and may elect to provide the United States with a
written waiver at any time prior to the trial of this
matter.") Clerk's Papers at 139 (footnote omitted) ("A
representative of the Brazilian executive branch has
verbally waived the rule [of specialty]." Clerk's
Papers at 141.); see also Memorandum in Opposition to
Defendant's Alternative Motions to Dismiss Counts I-IV;
Require an Offer of Proof; Expedite Pre-Trial Hearings and
for Discovery, filed July 8, 1996, Clerk's Papers at 229-48
("The affidavit outlined formal and personal meetings with
Brazilian officials. The affidavit remains true and valid."
Clerk's Papers at 231. "As was stated at the April 09
hearing, a verbal waiver was in fact obtained." Clerk's
Papers at 236.); see also State's Opening Memorandum of
Points and
|
|
Authorities
Re: Extradition; the Rule of Specialty; Waiver and
Defendant's Motion to Dismiss Counts 1-4, filed on July 25,
1996, Clerk's Papers at 374-390 ("The Brazilian government
would not object, according to multiple statements made by
Justice Minister to members of the U.S. delegation are
accurately recited in the previously filed affidavit of
Timothy Bradshaw." Clerk's Papers at 382); see also
Opposition to Motion to Dismiss, filed on Nov. 4, 1996
Clerk's Papers at 428-64 ("A United States delegation
traveled to Brasilia on January 23, 1996 and met with The
[sic] Minister of Justice. See filed Affidavit of
Tim [sic] Bradshaw." Clerk's Papers at 433. "It is
interesting to note, however, that the Brazilian executive,
through its Minister of Justice (the equivalent of the
United States Attorney General) has indicated that it will
not object to a decision by the United States to try the
defendant for Murder in the First Degree." Clerk's Papers at
441.).
|
|
FN24.
Hearing Before the Honorable Larry A. Jordan, November 12,
1996, Transcript at 16.
|
|
FN25.
See State's Answer to Motion for Discretionary Review,
Exhibit G.
|
The Honorable William J. Clinton, President of the United States of
America, on May 21, 1996 wrote to the Honorable
Fernando Henrique Cardoso, President of the United States of Brazil,
seeking his "personal assistance" in overcoming the extradition
ruling of the Federal Supreme Court of Brazil. [FN26] His
letter stated the "Brazilian Supreme Court, based on technical
differences in our laws, has twice issued decisions that permit
Pang's prosecution *887
(Cite
as: 132 Wash.2d 852, *887, 940 P.2d 1293, **1311)
|
on
charges of arson but not of murder." [FN27] The letter then
stated:
|
FN26.
Letter from William J. Clinton, President of the United
States, to Fernando Henrique Cardoso, President of Brazil,
dated May 21, 1996.
|
Such a limitation will prevent justice from being done in this case.
Attorney General [Janet] Reno has worked closely with members
of your Administration, but all avenues of judicial relief have been
exhausted. Although some in your government interpret it more
restrictively, our extradition treaty may be read to legally permit
the Government of Brazil to agree to prosecution of [Mr.]
Pang for all charges against him. Our respective legal experts have
already prepared a mutually acceptable statement that would serve the
purpose. Should you be unable to provide us with such a statement, as
an alternative please consider providing a more limited written
statement simply saying that your government
would not object to [Mr.] Pang's prosecution on all charges.
[FN28]
On September 26, 1996, Minister of State for Justice Nelson A. Jobim
wrote to United States Attorney General Janet Reno stating:
[FN29]
|
FN29.
Letter from Nelson A. Jobim, Minister of State for Justice
of Brazil to Janet Reno, United States Attorney General
dated September 26, 1996 (emphasis added). English
translation from original Portuguese.
|
In response to the inquiry by the Department of Justice, I am writing
to Your Excellency to discuss the extradition proceeding of U.S.
citizen Martin Shaw Pang.
In Brazil, as in the United States of America, the concept of the
separation of the three branches of the national government derives
from the text of the Federal Constitution itself. Under this system,
the Judicial Branch alone is responsible for interpreting any legal
instrument in force in the country, including those derived from
international agreements and treaties (Article 102(III)(b) of the
Federal Constitution), which, once incorporated into the
domestic legal system, are equivalent to federal
statutes (Article 105(III)(a) of the Federal Constitution).
The exclusive jurisdiction of the Federal Supreme Court to process
and rule on any extradition request by a foreign State
*888
(Cite
as: 132 Wash.2d 852, *888, 940 P.2d 1293, **1311)
|
derives, in turn, from Article 102(I)(g) of the Federal Constitution.
Decisions granting or denying extraditions may not be appealed, and
the Executive Branch may not limit or make comments of any kind
regarding the content or scope of **1312
(Cite
as: 132 Wash.2d 852, *888, 940 P.2d 1293, **1312)
|
rulings handed down by that Court, which is the highest authority of
an independent branch of government. Consequently, any interpretive
statement the Executive Branch might make would be unenforceable.
As for your concern regarding possible limits on the requesting
State's right to punish vis-a-vis the extradited defendant, it should
be emphasized, on the basis of fundamental precepts of public
international law, that legally binding international acts are the
only legal instrument capable of binding two or more sovereign States
together. Thus, provided that the terms of the Treaty of Extradition
between Brazil and the United States of America of January 13, 1961,
are respected, it will be incumbent upon the justice system of the
United States of America to establish a suitable punishment for the
crime of arson in the first degree, resulting in four deaths and the
consequences thereof, under U.S. law. It goes without saying that the
precise interpretation of this language, used by the Brazilian court
in its decision, and the determination of how it
might best be adapted to U.S. law, are for the justice system of your
country to decide.
Very truly yours,
[Signature]
Nelson A. Jobim
Minister of State for Justice
On October 25, 1996, the King County Prosecuting Attorney filed a
second amended information. Most significantly, it changed the
wording of the charge of arson in the first degree in Count V of the
amended information to include reference to subsection (d) of the
arson statute and to add new assertions. It states:
I, Norm Maleng, Prosecuting Attorney for King County in the name and
by the authority of the State of Washington, do accuse MARTIN S. PANG
of the crime of Arson in the First Degree, committed as follows:
*889
(Cite
as: 132 Wash.2d 852, *889, 940 P.2d 1293, **1312)
|
That the defendant MARTIN S. PANG in King County, Washington on or
about January 5, 1995, did knowingly and maliciously and with intent
to collect insurance proceeds cause a fire or explosion on property
valued at ten thousand dollars located at 811 Seventy [sic]
Avenue South, Seattle (the Mary Pang Warehouse), which was manifestly
dangerous to human life, including firemen;
Contrary to RCW
9A.48.020(1)(a) and (d),
and against the peace and dignity of the State of Washington.
[FN30]
|
FN30.
(Emphasis added.) The first Amended Information did not
include the "valued at ten thousand dollars" or the "intent
to collect insurance proceeds" which corresponds with
RCW
9A.48.020(1)(d).
|
Other changes in the second amended information included the order of
the counts. Count I was assigned to the charge of arson in the first
degree and Counts II-V were assigned to the charges of murder in the
first degree. There was also deletion of the phrase "together with
another" in the charges of murder in the first degree, thus making
Petitioner Pang solely responsible.
By letter of October 29, 1996, President Cardoso responded to
President Clinton's letter of May 21, 1996, stating that in Brazil
the executive branch could not alter the scope of the extradition
decision of the Federal Supreme Court. [FN31] The letter
stated:
|
FN31.
Letter from Fernando Henrique Cardoso, President of Brazil,
to William J. Clinton, President of the United States, dated
October 29, 1996.
|
Despite the personal interest I took in the issue, the consideration
of the alternatives at hand clearly indicated that room for action by
the Executive branch is very limited, since a decision has already
been taken by the Supreme Court.
I have referred the case back to Minister of Justice Nelson Jobim,
who recently wrote to Attorney General Janet Reno on the subject. I
understand his letter provides the American government with a broad
and clear picture of the Brazilian legal position on the issue.
[FN32]
*890
(Cite
as: 132 Wash.2d 852, *890, 940 P.2d 1293, **1312)
|
On
November 12, 1996, the Honorable Larry A. Jordan, King County
Superior Court, denied a motion by Petitioner Martin
**1313
(Cite
as: 132 Wash.2d 852, *890, 940 P.2d 1293, **1313)
|
Shaw Pang to dismiss or sever the murder charges from the arson
charge which Petitioner urged was required by the limitation in the
extradition order issued by the Federal Supreme Court of Brazil and
denial of the appeal by the United States of America for
clarification. In rendering his decision, Judge Jordan stated "it
appears to this Court reasonably clear that Brazil did not extradite
for felony murder." [FN33] However, he held that because of
Brazil's implicit waiver, Petitioner Pang lacked standing to assert a
violation of Article XXI of the Treaty in his effort to limit his
prosecution to arson in the first degree. In denying Petitioner
Pang's motion, Judge Jordan stated in part:
|
FN33.
Reporter's Verbatim Report of Court's Oral Decision,
November 12,
|
Now, the response by Minister Jobim certainly is not an express
agreement or express waiver as that term is used in law. However, his
conduct and his words in my judgment, are an implicit waiver or a
consent or assent by words or conduct. By not objecting and by
communicating as he did in the last paragraph and last sentence,
stating that the determination of how it best be adapted to U.S. law,
it seems to this Court is tantamount to a waiver of the provision of
Article XXI [FN34] of the Treaty.
|
FN34.
Article XXI states: "A person extradited by virtue of the
present Treaty may not be tried or punished by the
requesting State for any crime or offense committed prior to
the request for his extradition, other than that which gave
rise to the request, nor may he be re-extradited by the
requesting State to a third country which claims him, unless
the surrendering State also agrees or unless the person
extradited, having been set at liberty within the requesting
State, remains voluntarily in the requesting State for more
than 30 days from the date on which he was released. Upon
such release, he shall be informed of the consequences to
which his stay in the territory of the requesting State
would subject him."
|
I conclude and find that on this record,
because of that implicit waiver that Mr. Pang lacks standing to
assert a violation of Article XXI and he may be tried for all counts,
including *891
(Cite
as: 132 Wash.2d 852, *891 , 940 P.2d 1293,
**1313)
|
the
four counts of murder, and that this Court has jurisdiction.
[FN35]
|
FN35.
Reporter's Verbatim Report of Court's Oral Decision,
November 12, 1996, at 10.
|
The order denying Petitioner's motions, signed by Judge Jordan on
January 13, 1997, reads in its entirety:
The court, having considered the filed motion, memoranda, exhibits
and arguments by defense counsel, in support of the motion to
dismiss, and by the State, in opposition to the motion to dismiss,
and having conducted independent legal research, hereby enters the
following finding and order:
The court has jurisdiction over the defendant on all counts in the
Second Amended Information. The defendant's motion to dismiss Counts
II-V of the Second Amended Information is denied for the reasons
articulated in the court's oral ruling of November 12, 1996.
DONE IN OPEN COURT this 13 day of January, 1997.
[s] Larry A. Jordan
THE HONORABLE LARRY JORDAN
(Cite
as: 132 Wash.2d 852, *891, 940 P.2d 1293, **1313)
|
SUBMITTED BY:
Browne & Ressler
Attorneys for
Martin Shaw Pang
[s] John H. Browne
JOHN HENRY BROWNE
WSBA # 4667
[s] M. Timothy Dole
M. TIMOTHY DOLE
WSBA # 25372
COPY RECEIVED; AS TO FORM:
Deputy Prosecuting Attorneys
for King County
[no signature]
TIMOTHY A. BRADSHAW
WSBA # 17983
[no signature]
MARILYN B. BRENNEMAN
WSBA # 10700
[no signature]
STEPHEN P. HOBBS
WSBA # 18935 [FN36]
|
FN36.
Clerk's Papers at 592-93.
|
**1314
(Cite
as: 132 Wash.2d 852, *891, 940 P.2d 1293, **1314)
|
*892
(Cite
as: 132 Wash.2d 852, *892, 940 P.2d 1293, **1314)
|
By
letter of January 14, 1997, Dr. Celso Spitzcovsky and Dr. Roberto B.
Dias (da Silva) wrote to Brazil Justice Minister Jobim on behalf of
Petitioner Pang, the letter stating in part: [FN37]
|
FN37.
See Dr. Spitzcovsky's and Dr. Dias' letter of January 14,
1997 to Brazil Justice Minister Jobim, Clerk's Papers at
654-55. In the letter they state they are in the "capacity
of advocates of Martin S. Pang's interests in Brazil." This
is generally equivalent to "legal counsel" in our State.
Clerk's Papers at 655. English translation from original
Portuguese.
|
Also added to the American case was an affidavit of Timothy A.
Bradshaw, on behalf of the King County Prosecutor's Office, in which
a conversation with Your Excellency is related, with the following
content:
"The Justice Minister Jobim affirmed that Brazil has no objection to
our prosecution of [Mr.] Pang on the charges of homicide and
arson. Additionally, the Minister told me, 'If I were you, I would
prosecute on homicide--the justice system of the
United States should decide.' "
On November 12, 1996, adopting the theory of the Prosecutor's Office,
Judge Larry A. Jordan interpreted the fourth paragraph of the letter
that Your Excellency forwarded to the Attorney-General as implicit
permission, from the Brazilian Executive Branch to the American
justice system, to transgress Article 21 of the Treaty of Extradition
and Additional Protocol between Brazil and the U.S.A.--ratified by
Brazil on August 25, 1964--thus permitting a violation of the
extradition order issued by the Federal Supreme Court.
[FN38]
By letter of February 26, 1997, Brazil Minister of Justice Jobim
responded to the September 26, 1996 letter from Dr. Spitzcovsky and
Dr. Dias (da Silva) stating:
With reference to the Fax dated last January 14th, where you comment
on the extradition of the North-American citizien
[*893
(Cite
as: 132 Wash.2d 852, *893 , 940 P.2d 1293,
**1314)
|
sic] Martin Shaw Pang, I'd like to inform you that at no time did
I provide any type of interpretation on the content and reach of the
decision passed by the Federal Supreme Court. Thus, I ratify all the
words used in said correspondence, its only objective being to
clarify to Ms. Janet Reno, Attorney-General of the United States,
some aspects of the Brazilian Constitutional system.
(Cite
as: 132 Wash.2d 852, *893, 940 P.2d 1293, **1314)
|
3.
[sic] I'd like to stress once again that the criteria in
judging the case, in light of the Treaty of Extradition currently
used between the two countries and the decision of the Federal
Supreme Court on extradition, are the exclusive interpretation of the
North-American Judicial System, which must apply the norm to the
concrete case.
Sincerely,
[Signature illegible]
Nelson A. Jobim
State Ministry of Justice [FN39]
|
FN39.
See Clerk's Papers at 659 (emphasis added). English
translation from original Portuguese.
|
On December 4, 1996, Petitioner filed a motion for direct
discretionary review by this Court, which we granted on February 6,
1997.
DISCUSSION
APPLICABLE
WASHINGTON LAW
Petitioner
Martin Shaw Pang is now charged in the King County Superior Court by
Second Amended Information in Count I with arson in the first degree,
a class A felony, under RCW
9A.48.020(1)(a) and (d)
and in Counts II-V with four counts of murder in the first degree, a
class A felony, under RCW
9A.32.030(1)(c).
RCW
9A.48.020(1)(a) and (d)
states in part:
(1) A person is guilty of arson in the first degree if he knowingly
and maliciously:
*894
(Cite
as: 132 Wash.2d 852, *894, 940 P.2d 1293, **1314)
|
a)
Causes a fire or explosion which is manifestly dangerous to any human
life, including firemen; or
....
**1315
(Cite
as: 132 Wash.2d 852, *894, 940 P.2d 1293, **1315)
|
(d)
Causes a fire or explosion on property valued at ten thousand dollars
or more with intent to collect insurance proceeds.
(2) Arson in the first degree is a class A felony.
RCW
9A.32.030(1)(c)
states in part:
(1) A person is guilty of murder in the first degree when:
....
(c) He or she commits or attempts to commit the crime of either (1)
robbery in the first or second degree, (2) rape in the first or
second degree, (3) burglary in the first degree, (4) arson in the
first or second degree, (5) kidnapping in the first or second degree,
and in the course of or in furtherance of such crime or in immediate
flight therefrom, he or she, or another participant, causes the death
of a person other than one of the participants: Except that in any
prosecution under this subdivision (1)(c) in which the defendant was
not the only participant in the underlying crime, if
established by the defendant by a preponderance
of the evidence, it is a defense that the defendant:
(i) Did not commit the homicidal act or in any way solicit, request,
command, importune, cause, or aid the commission thereof; and
(ii) Was not armed with a deadly weapon, or any instrument, article,
or substance readily capable of causing death or serious physical
injury; and
(iii) Had no reasonable grounds to believe that any other participant
was armed with such a weapon, instrument, article, or substance;
and
(iv) Had no reasonable grounds to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury.
(2) Murder in the first degree is a class A felony.
*895
(Cite
as: 132 Wash.2d 852, *895, 940 P.2d 1293, **1315)
|
Emphasis added.)
Under the Sentencing Reform Act of 1981, RCW 9.94A.310, arson in the
first degree has a seriousness score of VIII. If convicted of that
crime, Petitioner, with an offender score of zero, under the
guidelines would be subject to a standard sentence range of 21 to 27
months. However, under RCW
9.94A.390
a sentencing court may in its discretion depart from the guidelines
and impose an aggravated exceptional sentence above the standard
range if statutory criteria are met and the sentencing court
identifies them:
The following are illustrative factors which the court may consider
in the exercise of its discretion to impose an exceptional sentence.
The following are illustrative only and are not
intended to be exclusive reasons for exceptional sentences.
....
(2) Aggravating Circumstances
(a) The defendant's conduct during the commission of the current
offense manifested deliberate cruelty to the victim.
....
(d) The current offense was a major economic offense or series of
offenses, so identified by a consideration of any of the following
factors:
(i) The current offense involved multiple victims or multiple
incidents per victim;
(ii) The current offense involved attempted or actual monetary less
substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication or
planning or occurred over a lengthy period of time; or
(iv) The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current
offense.
....
*896
(Cite
as: 132 Wash.2d 852, *896, 940 P.2d 1293, **1315)
|
i)
The operation of the multiple offense policy of RCW
9.94A.400
results in a presumptive sentence that is clearly too lenient in
light of the purpose of this chapter, as expressed in
RCW
9.94A.010.
(j) The defendant's prior unscored misdemeanor
or prior unscored foreign criminal history results in a presumptive
sentence that is clearly too lenient in light of the purpose of this
chapter as expressed in RCW
9.94A.010.
Under RCW
9A.20.021
the maximum sentence Petitioner Pang could receive if he is found
guilty of arson in the first degree, a **1316
(Cite
as: 132 Wash.2d 852, *896, 940 P.2d 1293, **1316)
|
class A felony, is "confinement in a state correctional institution
for a term of life imprisonment, or by a fine in an amount fixed by
the court of fifty thousand dollars, or by both such confinement and
fine[.]" This was a factor considered by the Federal Supreme
Court of Brazil in its decision on extradition.
STANDING
(1)
Does Petitioner Pang have standing to object to violation by the
State of Washington of the terms of the order on extradition issued
by the Federal Supreme Court of Brazil?
[1]
The State argues that Petitioner Pang does not have standing to
assert any post-extradition limitations on his prosecution because
the Brazilian Executive, through Minister of Justice Nelson A. Jobim,
does not object to King County prosecuting Petitioner on four counts
of murder in the first degree. The State correctly recognizes the
exception to the doctrine of specialty which allows the requesting
state to prosecute an accused for a crime other than that for which
the accused was extradited when the asylum state consents.
[FN40] However, in the absence of that consent by the asylum
state, an extradited person may
*897
(Cite
as: 132 Wash.2d 852, *897, 940 P.2d 1293, **1316)
|
raise any objections to post-extradition proceedings which might have
been raised by the rendering country. [FN41]
The rule in at least three United States circuit courts is that an
extraditee has standing "to raise any objections which the requested
nation might have asserted," subject to the limitation that "the
requested nation may waive its right to object to a treaty violation
and thereby deny the defendant standing to object to such action."
[FN42] At least four other circuits have left the question of
standing unanswered, with some indicating approval of the prevailing
rule. [FN43]
|
FN42.
United
States v. Puentes, 50 F.3d 1567, 1575 (11th
Cir.),
cert. denied, 516
U.S. 933, 116 S.Ct. 341, 133 L.Ed.2d 239
(1995);
accord United
States v. Fowlie, 24 F.3d 1059, 1064 (9th
Cir.1994),
cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 643
(1995); Leighnor
v. Turner, 884 F.2d 385, 389 (8th
Cir.1989).
|
|
FN43.
See United
States v. Saccoccia, 58 F.3d 754, 767 n. 6 (1st
Cir.1995)
("[W]hile we take no view of the [standing]
issue, ... the side that favors individual standing has much
to commend it." (citations omitted)), cert. denied,
517
U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474
(1996);
see also Casey
v. Department of State, 980 F.2d 1472, 1476 n. 4
(D.C.Cir.1992)
("it remains an open question in this circuit whether
[the defendant] has 'standing' to raise his claims
after extradition") (citing United
States v. Sensi, 879 F.2d 888, 892 n. 1
(D.C.Cir.1989)
(reserving question of standing)); United
States v. Davis, 954 F.2d 182, 186 (4th
Cir.1992)
(declining to address the standing issue); United
States v. Herbage, 850 F.2d 1463, 1466 (11th
Cir.1988)
("For purposes of this case, we assume, without deciding,
that an individual has standing to allege a violation of the
specialty principle."), cert. denied, 489
U.S. 1027, 109 S.Ct. 1158, 103 L.Ed.2d 217
(1989).
|
The State also asserts that a minority of United States circuit
courts deny standing absent affirmative protest by the surrendering
State. However, this purported split in the circuits is illusory. Two
of the three cases the State cited for this proposition are not
standing cases at all, but were resolved against the extraditees on
the merits. [FN44] The third case merely
noted the defendant's standing was questionable
before reaching the merits. [FN45]
|
FN45.
Demjanjuk
v. Petrovsky, 776 F.2d 571, 584 (6th
Cir.1985)
("The right to insist on application of the principle of
specialty belongs to the requested state, not to the
individual whose extradition is requested.") (citing
Berenguer
v. Vance, 473 F.Supp. 1195, 1197
(D.D.C.1979));
accord Kaiser
v. Rutherford, 827 F.Supp. 832, 835
(D.D.C.1993)
( "therefore he has no standing to raise this issue.... Even
assuming, arguendo, that the Plaintiff had standing to
assert a claim in this regard, the doctrine of specialty
simply requires that the prosecution be based on the same
facts as set forth ...." (citations omitted)).
|
[2][3]
The State urges this Court to find that Brazil's
Executive,*898
(Cite
as: 132 Wash.2d 852, *898 , 940 P.2d 1293,
**1316)
|
through Minister of Justice Nelson A. Jobim, "implicitly consented"
to prosecution of Petitioner Pang by the State of Washington on four
counts of murder in the first degree. We agree with
**1317
(Cite
as: 132 Wash.2d 852, *898 , 940 P.2d 1293,
**1317)
|
the
rule expressed in
(Cite
as: 132 Wash.2d 852, *898, 940 P.2d 1293, **1317)
|
Najohn
that only express consent to prosecution will be considered a waiver
of the doctrine of specialty. [FN46] The letter from Brazil
Minister of Justice Jobim to United States Attorney General Janet
Reno cannot logically be interpreted as either an implicit waiver or
an explicit waiver. The subsequent letter of February 26, 1997 from
Minister Jobim unequivocally explains the meaning and intent of his
letter to Attorney General Reno. It completely contradicts the
interpretation urged by the State. That letter states in part:
I'd like to inform you that at no time did I provide any type of
interpretation on the content and reach of the decision passed by the
Federal Supreme Court. Thus, I ratify all the words used in said
correspondence, its only objective being to clarify to Ms. Janett
[sic] Reno, Attorney-General of the United States, some
aspects of the Brazilian Constitutional system. [FN47]
|
FN47.
Letter from State Ministry of Justice Nelson A. Jobim to Dr.
Celso
|
|
Spitzcowsky
[sic] /Dr. Roberto B. Dias da Silva, dated February
26, 1997, Clerk's Papers at 659. English translation from
original Portuguese.
|
While some United States circuit courts have questioned whether an
extraditee has standing to assert limitations on post-extradition
prosecution, and other courts have declined to address the issue, no
court has dismissed such a claim because an extraditee did not have
standing. The only firm decisions on this issue agree that an
extraditee *899
(Cite
as: 132 Wash.2d 852, *899, 940 P.2d 1293, **1317)
|
may
raise any objection the surrendering State could make, as long as
that country has not waived its right to object. [FN48] From
the entire record in this case, we cannot conclude that the United
States of Brazil has said, done or implied by words, action or
inaction anything which would require this Court to deny Petitioner
Pang the right to make post-extradition objections to his prosecution
by the State of Washington in violation of the conditions of his
extradition from Brazil. We conclude that Petitioner Pang does have
standing to assert limitations on his post- extradition prosecution
in King County.
WAIVER
(2) Did the United States of Brazil explicitly or implicitly waive
any objection it could have made to prosecution by the State of
Washington of Petitioner Pang for murder in the first degree contrary
to the specific terms of the extradition order issued by the Federal
Supreme Court of Brazil?
[4]
The trial court concluded that the United States of Brazil, by not
objecting when it had numerous opportunities to do so, "implicitly
waived objection," thereby defeating Petitioner Pang's standing.
[FN49] The State urges this Court to adopt that implicit
waiver rationale, arguing that Justice Minister Jobim's letter of
September 26, 1996 to Attorney General Reno indicates that Brazil
does not object to Petitioner Pang being prosecuted for four counts
of murder in the first degree. Nothing in the entire record before
this Court supports such a conclusion. We reject it as being
completely unsound and totally contrary to the record.
|
FN49.
Verbatim Report of Court's Oral Decision at 8-10.
|
The United States of Brazil has from the outset expressed its
position that Petitioner Pang should not be charged with murder in
the first degree by the State of Washington. The Federal Supreme
Court of Brazil fully *900
(Cite
as: 132 Wash.2d 852, *900, 940 P.2d 1293, **1317)
|
considered and unequivocally rejected extradition of Petitioner on
the murder charges as requested by the State of Washington. That
position was
(Cite
as: 132 Wash.2d 852, *900, 940 P.2d 1293, **1317)
|
reaffirmed
when the court uncategorically rejected the appeal filed by the
United States and the motion for clarification filed by the State of
Washington. Despite repeated requests through diplomatic channels,
Brazil has not only affirmatively denied permission to charge
Petitioner with murder, but its President and Minister of Justice
affirmatively declined in no uncertain terms the request of President
Clinton that Brazil waive its right to object to prosecution
**1318
(Cite
as: 132 Wash.2d 852, *900, 940 P.2d 1293, **1318)
|
of
Petitioner Pang by the State of Washington for murder in the first
degree following the extradition order.
The State's insistence that Justice Minister Jobim waived objection
on behalf of Brazil to the State of Washington charging Petitioner
Pang with murder distorts the facts established in this case. The
letter from Minister Jobim to Attorney General Reno merely reiterated
that Petitioner Pang was extradited to stand trial "for the crime of
arson in the first degree, resulting in four deaths and the
consequences thereof under U.S. law." [FN50] This is only a
portion of the words used in the extradition order issued by the
Federal Supreme Court of Brazil. In that same statement the Federal
Supreme Court of Brazil continued its words to specifically exclude
"the additional charge of four counts of first-degree murder."
[FN51]
|
FN50.
Letter from Nelson A. Jobim, Minister of State for Justice
of Brazil, to Janet Reno, United States Attorney General,
dated September 26,
|
|
FN51.
Summary of Extradition, Clerk's Papers at 323.
|
From a reading of the complete series of opinions from the Federal
Supreme Court of Brazil it is evident beyond question that the point
of disagreement between the majority and the dissenting minority was
on the question whether the extradition order would exclude
punishment beyond the 30-year maximum under Brazilian law or whether
the order would allow the maximum punishment of life imprisonment for
arson in the first degree as allowed under Washington law.
[FN52]
|
FN52.
See Opinion Appendix "A." English translation from original
Portuguese. See opinions of Justice Neri da Silva, Moreira
Alues and Sydney Sanchez.
|
*901
(Cite
as: 132 Wash.2d 852, *901, 940 P.2d 1293, **1318)
|
We
are not convinced an implied waiver, even if made, would overcome the
standing of Petitioner Pang to object in this case. [FN53]
The United States Court of Appeals for the Ninth Circuit has held
that an express waiver of objection does divest an extraditee of
standing. [FN54] We conclude from the record in this case
that Brazil has not expressly consented to nor
implicitly or explicitly waived objection to the
State of Washington charging Petitioner with murder in the first
degree. We therefore conclude that Petitioner Pang does have standing
to object.
SPECIALTY
DOCTRINE
(3)
Does the "specialty doctrine" in international extradition law
prohibit the State of Washington from prosecuting Petitioner Pang for
crimes specifically excluded in the extradition order?
The United States Court of Appeals for the Ninth Circuit has stated
"We review de novo whether extradition of a defendant satisfies the
doctrines of 'dual criminality' and 'specialty.' " [FN55] The
specialty doctrine has been explained:
The requested state retains an interest in the fate of a person whom
it has extradited, so that if, for example, he is tried for an
offense other than the one for which he was extradited, or is given a
punishment more severe than the *902
(Cite
as: 132 Wash.2d 852, *902, 940 P.2d 1293, **1318)
|
one
applicable at the time of the request for extradition, the rights of
the requested state, as well as the person, are violated.
[FN56]
|
FN56.
Restatement (Third) of the Foreign Laws of Nations, Ch. 7,
at 557- 58.
|
[5]
Under international law, the "specialty doctrine" generally prohibits
a requesting State from prosecuting an extraditee "for an offense
other than the one for which surrender was made." [FN57] This
doctrine "is designed to prevent prosecution for an offense for
**1319
(Cite
as: 132 Wash.2d 852, *902, 940 P.2d 1293, **1319)
|
which the person would not have been extradited." [FN58]
|
FN57.
I.A. Shearer, Extradition in International Law 146
(1971).
|
|
FN58.
Restatement (Third) of Foreign Relations Law of the United
States ß
|
" '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." ' " [FN59] "To
guarantee limited prosecution by nations seeking extradition of
persons from the United States, the United States has guaranteed,
pursuant to the treaty, that it will honor limitations placed on
prosecution in the United States." [FN60]
In United
States v. Rauscher,
[FN61] the United States Supreme Court addressed the question
whether the extradition treaty between England and the United States
prohibited prosecution of the defendant for a crime other than that
for which he was extradited. This was the first case in which the
Supreme Court recognized the specialty doctrine. In that case an
American merchant ship officer had been
extradited from Great Britain, under an extradition treaty, to be
charged with murder of a crew member. He was subsequently convicted
of assault and inflicting *903
(Cite
as: 132 Wash.2d 852, *903, 940 P.2d 1293, **1319)
|
cruel and unusual punishment, neither of which were listed as
extraditable offenses in the treaty. The Court held the defendant
could be tried only for the offense "with which he is charged in the
extradition proceedings, and for which he was delivered up."
[FN62]
The Court in Rauscher
was
guided by principles of comity which prevailed in the absence of
treaties, under which a receiving country would not prosecute a
fugitive for any offense other than those for which the fugitive had
been surrendered by the asylum country. [FN63] The Court
rejected the argument that the treaty did not expressly limit the
offenses that could be charged by the requesting country.
[FN64] The Court reasoned that there was no indication the
treaty intended to depart from principles of comity.
[FN65]
The Supreme Court concluded that the treaty, by listing certain
extraditable offenses, implicitly excluded the right of extradition
for any other offenses. [FN66] The Court stated: "[A]
person who has been brought within the jurisdiction of the court by
virtue of proceedings under an extradition treaty, can only be tried
for one of the offences described in that treaty, and for the offence
with which he is charged in the proceedings for his extradition."
[FN67] The Court based its conclusion upon the terms and
history of the treaty; extradition practices of states; case law; and
the writings of jurists. In part, the court considered the Revised
Statutes ßß 5272, 5275, which dealt with this country's
roles as both requested state and requesting state in extradition
proceedings. Section 5275 is now codified in 18
U.S.C. ß 3192
and differs only in that the words "crimes or
*904
(Cite
as: 132 Wash.2d 852, *904, 940 P.2d 1293, **1319)
|
offences" have been replaced with the word "offenses." It provides as
follows:
Whenever any person is delivered by any foreign government to an
agent of the United States, for the purpose of being brought within
the United States and tried for any offense of which he is duly
accused, the President shall have power to take all necessary
measures for the transportation and safekeeping of accused person,
and for his security against lawless violence, 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, and may employ such portion of
**1320
(Cite
as: 132 Wash.2d 852, *904, 940 P.2d 1293, **1320)
|
the
land or naval forces of the United States, or the militia thereof, as
may be necessary for the safe-keeping and protection of the accused.
[FN68]
In United
States v. Alvarez-Machain
the Supreme Court noted that federal statutes impose the doctrine of
specialty upon all extradition treaties to which the United States is
a party. [FN69]
[6]
Under Rauscher,
for an extradited defendant to be charged with a crime, that crime
must be specified in the treaty (the approval of which is within the
sole discretion of the asylum state), and be included in the
extradition petition (the content of which is within the sole
discretion of the requesting state). The defendant has the right to
"be tried only for the offence with which he is charged in the
extradition proceedings and for which he was delivered up."
[FN70] "It is unreasonable that the country of the asylum
should be expected to deliver up such a person to be dealt with by
the demanding government without any limitation, implied or
otherwise, upon its prosecution of the *905
(Cite
as: 132 Wash.2d 852, *905, 940 P.2d 1293, **1320)
|
party." [FN71] The doctrine of specialty was not explicitly
stated in the treaty between the United States and Great Britain. The
court in Rauscher
interpreted
the treaty with consideration of the specialty doctrine which had
previously been recognized in international law. [FN72]
[7]
The Court examined the treaty and the history of relations between
the United States and Great Britain to determine whether the parties,
in the absence of express incorporation, nevertheless intended the
doctrine of specialty to be part of the treaty. [FN73] Under
Rauscher
the specialty doctrine may be implied where a treaty is silent on the
issue and there is no reason to assume the signatory nations did not
abide by the principles of comity.
Petitioner Pang argues that, because the extradition order
specifically excluded the charges of murder in the first degree
requested by the State of Washington, under the specialty doctrine
the State may not prosecute him on these charges. He argues that
under Rauscher
the
specialty doctrine is implied in every treaty. [FN74]
The State argues that any limitations on post-extradition prosecution
are defined only by the terms of the treaty and the doctrine of
specialty applies only when it is expressly incorporated into the
terms of the treaty. In determining whether there has been a
violation to the specialty doctrine, courts have consistently
examined the terms of the treaty for any limitations on prosecution.
[FN75] The **1321
(Cite
as: 132 Wash.2d 852, *905, 940 P.2d 1293, **1321)
|
United States Court of Appeals for the Ninth Circuit
*906
(Cite
as: 132 Wash.2d 852, *906, 940 P.2d 1293, **1321)
|
observed in a recent case that "[w]e look to the language of
the applicable treaty to determine the protection an extradited
person is afforded under the doctrine of specialty."
[FN76]
|
FN75.
See, e.g., United
States v. Puentes, 50 F.3d 1567, 1575 (11th
Cir.)
(citing Treaty on Extradition and Cooperation in Penal
Matters, Apr.
6,
1973, U.S.-Uru., art. XIII, P.I.A.S. 10850), cert. denied,
516
U.S. 933, 116 S.Ct. 341, 133 L.Ed.2d 239
(1995);
United
States v. Fowlie, 24 F.3d 1059, 1064 n. 2, 1065 (9th
Cir.1994)
(citing Extradition Treaty Between U.S. and Mex., May 4,
1978, U.S.-Mex., 31 U.S.T. 5059, T.I.A.S. 9656), cert.
denied, 513
U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 643
(1995);
United
States v. Andonian, 29 F.3d 1432, 1435
(9th
|
|
Cir.1994)
(citing Treaty on Extradition and Cooperation in Penal
Matters, Apr.
6,
1973, U.S.-Uru., art. 13, T.I.A.S. 10850), cert. denied,
513
U.S. 1128, 115 S.Ct. 938, 130 L.Ed.2d 883
(1995):
United
States v. Khan, 993 F.2d 1368, 1373 (9th
Cir.1993)
(citing Extradition Treaty, Dec. 22, 1931, U.S.-Pak., art 7,
47 Stat. 2124); United
States v. Levy, 905 F.2d 326, 328 (10th
Cir.1990)
(citing Extradition Treaty, June 8, 1972, U.S.-U.K., art.
XII(1), 28 U.S.T. 227), cert. denied, 498
U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 778
(1991);
Leighnor
v. Turner, 884 F.2d 385, 386 T.S. No. 354 (8th
Cir.1989)
(citing Treaty Concerning Extradition, June 20, 1978,
U.S.-F.R.G., 32 U.S.T. 1485, T.I.A.S. No. 9785);
United
States v. Sensi, 879 F.2d 888, 895
(D.C.Cir.1989)
(citing Extradition Treaty, June 8, 1972, U.S.-U.K., art.
XII, 28 U.S.T. 227, T.I.A.S. 8468); United
States v. Herbage, 850 F.2d 1463, 1465 (11th
Cir.1988)
(citing Extradition Treaty, June 8, 1972/Oct. 21, 1976,
U.S.- U.K., art. XII, 28 U.S.T. 227, T.I.A.S. No. 8468),
cert. denied, 489
U.S. 1027, 109 S.Ct. 1158, 103 L.Ed.2d 217
(1989);
United
States v. Cuevas, 847 F.2d 1417, 1427 (9th
Cir.1988)
(citing Treaty on Extradition, U.S.-Switz., May 14, 1900, 31
Stat.1928, T.S. No. 354, Art. IX), cert. denied,
489
U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185
(1989);
United
States v. Thirion, 813 F.2d 146, 151 (8th
Cir.1987)
(citing Treaty Respecting Extradition, Feb. 15, 1939, U.S.-
|
|
Monaco,
54 Stat. 1780); United
States v. Najohn, 785 F.2d 1420, 1422 (9th
Cir.1986)
(citing Treaty on Extradition, May 14, 1900, U.S.-Switz.,
Art. IX, 31 Stat.1928, T.S. No. 354);
Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d
Cir.)
(citing Extradition Convention between U.S.- Italy, (1868),
Art. III, 15 Stat. 631), cert. denied, 409
U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511
(1972).
|
[8]
In this case, the doctrine of specialty is incorporated into the
terms of the Treaty of Extradition Between the United States of
America and the United States of Brazil (Treaty) through Article XXI
which provides: [FN77]
|
FN77.
15 U.S.T.2093; T.I.A.S. No. 5691, Article XXI, Clerk's
Papers at 58. See Opinion Appendix "B" for the complete text
of the Treaty.
|
A person extradited by virtue of the present Treaty may not be tried
or punished by the requesting State for any crime or offense
committed prior to the request for his extradition, other than that
which gave rise to the request, nor may he be re-extradited by the
requesting State to a third country which claims him, unless the
surrendering State also agrees or unless the person extradited,
having been set at liberty within the requesting State, remains
voluntarily in the requesting *907
(Cite
as: 132 Wash.2d 852, *907, 940 P.2d 1293, **1321)
|
State for more than 30 days from the date on which he was released.
Upon such release, he shall be informed of the consequences to which
his stay in the territory of the requesting State would subject
him.
This provision, read in conjunction with Articles I and II, requires
that the crime must be enumerated in the treaty and must satisfy the
doctrine of dual criminality, thus incorporating the doctrine of
specialty into the Treaty. Because the doctrine is codified in
federal statute, 18
U.S.C. ß 3192,
federal law requires acceptance of the requirement of Brazil that an
offense must be extraditable under its interpretation of applicable
domestic and international law.
The United States Court of Appeals for the Ninth Circuit recognizes
that the doctrine of specialty is embodied in all extradition
treaties. [FN78] That court has recognized Rauscher
as providing an "implicit rule of specialty."
[FN79] It has also recognized that,
under the doctrine of specialty, an extradited person may be
prosecuted only for offenses specified in the order of extradition.
[FN80]
The Federal Supreme Court of Brazil specifically "exclude[d]
from the grant of extradition the charges of murder in the first
degree." [FN81] The Court
|
FN81.
Summary of Extradition, Clerk's Papers at 323.
|
granted extradition without any restriction as to the possibility of
life imprisonment; but only on the crime of first degree arson with
the results it produced (four deaths) and all the consequences
thereof pursuant to United States law without however, the added
charge of four counts of murder in the first-degree.
[FN82]
|
FN82.
Summary of Extradition, Appeal for Clarification, Clerk's
Papers at 314 (emphasis added).
|
After considering the appeal for clarification from the
*908
(Cite
as: 132 Wash.2d 852, *908, 940 P.2d 1293, **1321)
|
United States, the Federal Supreme Court of Brazil unanimously denied
it, stating,
The absence of any doubt or obscurity as regards the denial of the
extradition **1322
(Cite
as: 132 Wash.2d 852, *908, 940 P.2d 1293, **1322)
|
with respect to the charges of the four crimes of murder in the first
degree is demonstrated in the terms of the decision, which did not
consider the facts, as described in the request, as characterizing
independent crimes of arson in the first degree and murder in the
first degree. [FN83]
|
FN83.
Id. (emphasis added).
|
King County Superior Court Judge Jordan in his oral decision stated,
"it appears to this Court reasonably clear that Brazil did not
extradite for felony murder." [FN84] He was absolutely
correct in that conclusion. But he was in error in his conclusion
that Brazil had "implicitly waived" any objection to the State of
Washington ignoring the order on extradition. Under the treaty and
the doctrine of specialty, King County may not prosecute Petitioner
Pang for any crime but arson in the first degree as specified in the
extradition ruling by the Federal Supreme Court
of Brazil. "The doctrine of specialty is satisfied if the extraditing
country honors the limitations placed on the prosecution by the
surrendering state." [FN85]
|
FN84.
Reporter's Verbatim Report of Court's Oral Decision,
November 12, 1996, at 4.
|
EXTRADITION
TREATY
(4)
Does the Extradition Treaty between the United States of America and
the United States of Brazil prohibit the State of Washington from
prosecuting Petitioner Pang for crimes not authorized in the
extradition order?
[9][10][11]
International law is incorporated into our domestic law.
[FN86] Treaties are the supreme law of the land. They are
binding on the states as well as the federal government.
[*909
(Cite
as: 132 Wash.2d 852, *909 , 940 P.2d 1293,
**1322)
|
FN87] Courts must interpret treaties in good faith.
[FN88] In the 1907 case of Johnson
v. Browne
[FN89] the United States Supreme Court stated:
(Cite
as: 132 Wash.2d 852, *909, 940 P.2d 1293, **1322)
|
|
FN88.
See Johnson
v. Browne, 205 U.S. 309, 321, 27 S.Ct. 539, 542-43, 51 L.Ed.
816 (1907);
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331,
T.S. no. 58 (1980), 81
I.L.M. 679
(1969), entered into force Jan. 27, 1980, Article 31
(although the United States has not ratified this treaty, it
is accepted as the authoritative guide to treaty law and
practice and declaratory of customary international law, S.
Exec. Doc., 92 Cong., 1st Sess. 1 (1971); Marian L. Nash,
Contemporary Practice of the United States Relating to
International Law, 75 Am. J. Int'l L. 142, 147
(1981)).
|
While the escape of criminals is, of course, to be very greatly
deprecated, it is still most important that a treaty of this nature
between sovereignties should be construed in accordance with the
highest good faith, and that it should not be sought, by doubtful
construction of some of its provisions, to obtain the extradition of
a person for one offense and then punish him for
another and different offense. Especially
should this be the case where the government surrendering the person
has refused to make the surrender for the other offense, on the
ground that such offense was not one covered by the treaty.
[FN90]
We adopt that statement as appropriate declaration of good faith
which our courts must maintain in interpreting the terms and
conditions of an extradition proceeding between signatory nations to
a treaty.
[12][13][14]
The right "to demand and obtain extradition of an accused criminal is
created by treaty." [FN91] The treaty must ordinarily list
the offense complained of in a request for extradition as an
extraditable offense. [FN92] Additionally, under the doctrine
of dual criminality, an accused person may be extradited only if the
conduct complained of is considered criminal by the jurisprudence or
under the *910
(Cite
as: 132 Wash.2d 852, *910, 940 P.2d 1293, **1322)
|
laws of both requesting and asylum **1323
(Cite
as: 132 Wash.2d 852, *910, 940 P.2d 1293, **1323)
|
states. [FN93] The doctrine of dual criminality is
specifically incorporated into the Treaty between the United States
and Brazil through Article I, which states:
|
479
U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986).
|
Each Contracting State agrees, under the conditions established by
the present Treaty and each in accordance with the legal formalities
in force in its own country, to deliver up, reciprocally, persons
found in its territory who have been charged with or convicted of any
of the crimes or offenses specified in Article II of the present
Treaty and committed within the territorial jurisdiction of the
other, or outside thereof under the conditions specified in Article
IV of the present Treaty: 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 commitment for trial if the crime or offense
had been there committed. [FN94]
|
FN94.
15 U.S.T. 2112; T.I.A.S. No. 5691, art. I, Clerk's Papers at
50. See Opinion Appendix "A."
|
Article II of the Treaty states in part:
Persons shall be delivered up according to the provisions of the
present Treaty for prosecution when they have been charged with, or
to undergo sentence when they have been convicted of, any of the
following crimes or offenses:
1. Murder (including crimes designated as parricide, poisoning and
infanticide, when provided for as separate crimes); manslaughter when
voluntary.
....
7. Arson.
.... [FN95]
|
FN95.
Id. art. II, at 50-52.
|
Article XI of the Treaty provides that:
The determination that extradition based upon the request
*911
(Cite
as: 132 Wash.2d 852, *911, 940 P.2d 1293, **1323)
|
therefor should or should not be granted shall be made in accordance
with the domestic law of the requested State, and the person whose
extradition is desired shall have the right to use such remedies and
resources as are authorized by such law. [FN96]
|
FN96.
Id. art. XI, at 55.
|
[15]
The Federal Supreme Court of Brazil, the highest court in the United
States of Brazil, has rendered its decision in good faith compliance
with extradition procedures in the Treaty. "[D]etermination
of whether a crime is within the provisions of an extradition treaty
is within the sole purview of the requested state."
[FN97]
[16]
We agree with the United States Court of Appeals for the Ninth
Circuit in its interpretation of international treaty law. From the
extensive record in this case, we cannot conclude that the Federal
Supreme Court of Brazil misinterpreted its own laws in rendering its
decision on extradition of Petitioner Pang under the Treaty. We
conclude without question that under the Treaty, Brazil, as the
requested state, has sole authority to determine whether a particular
offense is extraditable.
The Treaty provides that "[a] person extradited by virtue of
the present Treaty may not be tried or punished by the requesting
State for any crime or offense committed prior to the request for his
extradition, other than that which gave rise to
the request." [FN98]
|
FN98.
Treaty of Extradition Between the United States of America
and the United States of Brazil, January 13, 1961, art. XXI,
15 U.S.T.2093, T.I.A.S. 5691. See Opinion Appendix
"B."
|
The State argues it requested Petitioner's extradition on one count
of arson in the first degree and four counts of murder in the first
degree and reasons there is no violation of the Treaty because
Petitioner is only being prosecuted for those offenses. Petitioner
Pang argues that the semantic distinction between the Treaty in this
case and those limiting prosecution to offenses "for which
extradition *912
(Cite
as: 132 Wash.2d 852, *912 , 940 P.2d 1293,
**1323)
|
was
granted" is not meaningful. Two courts have affirmed convictions on
charges other than those for which extradition was granted because
the express language in the treaties in those cases allowed it.
**1324
(Cite
as: 132 Wash.2d 852, *912 , 940 P.2d 1293,
**1324)
|
In
Fiocconi
v. Attorney General,
the United States Court of Appeals for the Second Circuit denied
habeas corpus relief to an extraditee who had been convicted of
crimes other than those for which extradition was granted.
[FN99] The court examined the applicable United States-Italy
extradition treaty which provided that "the person ... delivered up
for the crimes enumerated ... shall in no way be tried for any ...
crime, committed previously to that for which his ... surrender is
asked." [FN100] The court
(Cite
as: 132 Wash.2d 852, *912, 940 P.2d 1293, **1324)
|
observed:
|
FN100.
Id.
at 481
(quoting Extradition Convention between U.S. and Italy,
1868, Art. III, 15 Stat. 631).
|
If the countries had intended that the requesting government could
not try the accused for any crime committed before the time of his
surrender other than the crime for which he was extradited, they
could have accomplished this by adopting one of the standard clauses
to that end. [FN101]
|
FN101.
Fiocconi
462 F.2d at 481
(citing 1 John B. Moore, A Treatise in Extradition and
Interstate Rendition ßß 148-49, at 194-96
(1891)); see e.g., Extradition Treaty, Mar. 19, 1924,
U.S.-Bulg., art. IV, 43 Stat. 1886 ("No person shall be
tried for any crime or offense other than that for which he
was surrendered."); Treaty Providing for the Extradition of
Fugitives from Justice, Apr. 17, 1900, U.S.-Chile, art.
VIII, 32 Stat. 1850 ("No person surrendered ... shall ... be
triable or tried or be punished for any crime of offense
committed prior to his extradition,
|
|
other
than that for which he was delivered up...."); Treaty on
Extradition, Dec. 3, 1971, U.S.-Can., art. 12, 27 U.S.T. 983
("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....").
|
In United
States v. Sensi
the defendant was convicted of charges other than those for which he
was extradited. [FN102] The United States Court of Appeals
for the District of Columbia upheld the convictions for the reason
that the United States-United Kingdom Treaty only prohibited
prosecution for offenses other than those "established by
*913
(Cite
as: 132 Wash.2d 852, *913, 940 P.2d 1293, **1324)
|
the
facts in respect of which his extradition has been granted."
[FN103] The court reasoned that, although the crimes charged
were not those for which extradition was granted, the charges were
based upon the same underlying facts and that therefore there was no
treaty violation. [FN104]
|
FN103.
Id.
at 895
(quoting Extradition Treaty, June 8, 1972, U.S.-U.K., art
XII, 28 U.S.T. 227, T.I.A.S. 8468).
|
The United States Court of Appeals for the Ninth Circuit in
United
States v. Khan
ruled to the contrary. [FN105] The defendant was charged with
conspiring to import drugs and with using a communication facility in
furtherance of the conspiracy. The United States requested his
extradition from Pakistan for trial on both charges. The Pakistani
Commissioner directed that the defendant be "surrendered over to the
authorities in the U.S.A. for trial under the relevant American Law,"
but made no direct reference to the underlying charges.
[FN106] Other documents in the case referred to the
conspiracy charge, but not to the communication facility charge. The
court held that because Pakistan did not unambiguously agree to
extradite the defendant on the communication facility charge, his
conviction on that charge must be reversed. [FN107] The court
distinguished Sensi,
pointing out that the treaty language in that case did not limit
prosecution to those offenses for which extradition was granted. The
court noted by contrast that "[t]he operative treaty in
[the] case contain[ed] the following language: 'A
person surrendered can in no case be [prosecuted] ... for any
other crime or offence, or on account of any other matters, than
those for which the extradition shall have taken place.' "
[FN108]
|
FN108.
Id.
at 1374
(some alteration in original )(quoting Extradition Treaty,
Dec. 22, 1931, art. 7, 47 Stat. 2124).
|
(5) Is the State of Washington obligated to follow the decision
*914
(Cite
as: 132 Wash.2d 852, *914 , 940 P.2d 1293,
**1324)
|
of
the Federal Supreme **1325
(Cite
as: 132 Wash.2d 852, *914 , 940 P.2d 1293,
**1325)
|
Court of Brazil which ruled that, as a condition for extraditing
Petitioner Pang the State, he can be prosecuted only "for the crime
of arson in the first degree resulting in four deaths .... without
the additional charge of four counts of first degree murder"?
[17]
Under all the established facts in this case and the application of
international law, treaty law, United States law, Washington law, and
common logic, we must give good faith recognition to the lawful
determination of the Federal Supreme Court of Brazil, the highest
court of that sovereign democracy, that Petitioner Martin Shaw Pang
was extradited only for prosecution in the State of Washington for
the crime of arson in the first degree, resulting in four deaths, but
not for prosecution for the four charges of murder in the
(Cite
as: 132 Wash.2d 852, *914, 940 P.2d 1293, **1325)
|
first
degree. We therefore answer the question in the
affirmative.
SUMMARY
AND CONCLUSIONS
(1)
Petitioner Pang has standing to object to violation by the State of
Washington of the terms of the order on extradition issued by the
Federal Supreme Court of Brazil. The only firm decisions on the issue
of standing agree that an extraditee may raise any objection the
surrendering State could make, as long as that country has not waived
its right to object. From the entire record in this case, we cannot
conclude that the United States of Brazil has said, done or implied
by words, action or inaction, anything which would require this Court
to deny Petitioner Pang the right to make post-extradition objections
to his prosecution by the State of Washington in violation of the
conditions of his extradition from Brazil.
(2) The United States of Brazil did not explicitly or implicitly
waive any objection it could have made to prosecution by the State of
Washington of Petitioner Pang for murder in the first degree contrary
to the specific terms of the extradition order issued by the Federal
Supreme Court of Brazil. We are not convinced an implied waiver, even
if *915
(Cite
as: 132 Wash.2d 852, *915, 940 P.2d 1293, **1325)
|
made, would overcome the standing of Petitioner Pang to object in
this case. We conclude from the record in this case that Brazil has
not expressly consented to nor implicitly or explicitly waived
objection to the State of Washington charging Petitioner with murder
in the first degree. We therefore conclude that Petitioner Pang
does have standing to object.
(3) The "doctrine of specialty" in international extradition law
prohibits the State of Washington from prosecuting Petitioner Pang
for crimes specifically excluded in the extradition order. In this
case the doctrine is incorporated into the Treaty through Article
XXI. The doctrine of specialty is satisfied if the extraditing
country honors the limitations placed on the prosecution by the
surrendering state.
(4) The Extradition Treaty between the United States of America and
the United States of Brazil prohibits the State of Washington from
prosecuting Petitioner Pang for crimes not authorized in the
extradition order. Good faith must be maintained in interpreting the
terms and conditions of an extradition proceeding between signatory
nations to a treaty. We conclude that under the Treaty, Brazil, as
the requested state, has sole authority to determine whether a
particular offense is extraditable.
(5) The State of Washington is obligated to follow the decision of
the Federal Supreme Court of Brazil which ruled that, as a condition
for extraditing Petitioner Pang to the State of Washington, he can be
prosecuted only "for the crime of arson in the first degree resulting
in four deaths .... without the additional charge of four counts of
first degree murder."
We reverse the King County Superior Court which denied the motion of
Petitioner Martin Shaw Pang to dismiss or sever four counts of murder
in the first degree from one count of arson in
the first degree. The trial court erroneously concluded that the
record in this case establishes Brazil Minister of Justice Nelson A.
Jobim implicitly waived the provisions of Article XXI of the
*916
(Cite
as: 132 Wash.2d 852, *916, 940 P.2d 1293, **1325)
|
Treaty, thus depriving Petitioner Pang of standing to assert a
violation of Article XXI and allowing the State of Washington to
proceed to trial on all counts, including the four counts of murder
in the first degree. The State may proceed to trial only on Count I
of the second **1326
(Cite
as: 132 Wash.2d 852, *916, 940 P.2d 1293, **1326)
|
amended information which charges Petitioner Martin Shaw Pang with
the crime of arson in the first degree alleged to have been committed
in King County, Washington on or about January 5, 1995.
GUY, JOHNSON, SMITH, MADSEN and SANDERS, JJ., concur.
DURHAM, Chief Justice (dissenting).
Four Seattle firefighters died while fighting a fire at Pang's
parents' warehouse. After fire investigators determined that the fire
had been deliberately set, a fugitive warrant was issued for Martin
Pang, who fled to Brazil. Pang was charged with first degree arson
and four counts of first degree felony murder, and the United States
requested that Brazil extradite him on these charges. However, the
Brazilian Supreme Court determined that Pang's
(Cite
as: 132 Wash.2d 852, *916, 940 P.2d 1293, **1326)
|
alleged
act would be classified in Brazil as the single crime of aggravated
arson. Therefore, Brazil granted extradition on the arson count
alone.
The question before us is whether the State may prosecute Pang for
the felony murder given that Brazil extradited him only for arson.
The plain language of the United States/Brazil extradition treaty
expressly permits prosecution for offenses included in the
extradition request. Yet, the majority erroneously concludes that a
doctrine of international law called specialty prohibits the State
from prosecuting Pang for anything other than the arson count for
which he was extradited. The majority's conclusion is based on a
misunderstanding of the specialty doctrine and is inconsistent with
the vast weight of authority, which holds that the scope of any
specialty limitations on prosecution is determined solely by the
language of the applicable treaty.
*917
(Cite
as: 132 Wash.2d 852, *917, 940 P.2d 1293, **1326)
|
Unless Pang is prosecuted for murder, he cannot be punished for the
firefighters' deaths because the codification of the "real facts
doctrine" in our state sentencing laws excludes from sentencing
consideration facts that establish the elements of a more serious
crime. Thus, the majority's decision not only violates the State's
unambiguous rights under the treaty, but also fails even to
effectuate Brazil's expectation that Pang will be held accountable
for the deaths he may have caused.
ANALYSIS
THE SPECIALTY DOCTRINE
Absent a treaty, the obligation to surrender a fugitive has never
been recognized as a principle of international law. [FN1] In
order to ensure that criminal fugitives are brought to justice, many
nations, including the United States, have entered into extradition
treaties to facilitate the surrender and prosecution of fugitives. In
order to guard against indiscriminate prosecution, particularly of
political crimes, extradition treaties usually include provisions
that limit prosecution for separate crimes unrelated to the
extradition request. [FN2] Such limitations on prosecution
are collectively referred to as the "specialty doctrine" and serve to
discourage nations from requesting extradition for one offense as a
ruse for obtaining jurisdiction on a different offense. However, the
precise form of the specialty doctrine varies because nations have
negotiated different limits on post-extradition prosecution.
|
FN1.
United
States v. Rauscher, 119 U.S. 407, 411-12, 7 S.Ct. 234, 236-
37, 30 L.Ed. 425 (1886);
Factor
v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78
L.Ed. 315 (1933).
|
For example, some extradition treaties prohibit prosecution for any
offenses other than those for which extradition is specifically
granted. In this most restrictive version of the specialty doctrine,
the asylum country dictates the scope of permissible prosecution by
its grant of extradition. It was this version of the rule that was
applied in the *918
(Cite
as: 132 Wash.2d 852, *918, 940 P.2d 1293, **1326)
|
Supreme Court's first specialty doctrine case, Rauscher,
and the rule that the majority erroneously suggests is implied in
every extradition treaty to which the United States is a party.
Although some nations adhere strictly to this version of specialty in
all extradition matters, "[i]n other states, including the
United States, the prosecution may go forward
**1327
(Cite
as: 132 Wash.2d 852, *918, 940 P.2d 1293, **1327
)
|
if
it is based on the same facts as those set forth in the request for
extradition." [FN3] Nations adopting this variation of the
specialty doctrine retain control over the scope of prosecution
rather than allowing the asylum country to dictate its scope. It is
this version of the specialty doctrine that is expressly incorporated
into the United States/Brazil extradition treaty: "A person
extradited by virtue of the present Treaty may not be tried or
punished by the requesting State for any crime or offense committed
prior to the request for his extradition, other than that which gave
rise to the request." [FN4] But both versions of the rule
(Cite
as: 132 Wash.2d 852, *918, 940 P.2d 1293, **1327)
|
accomplish
the purpose of the specialty doctrine: protection against
indiscriminate prosecution of separate crimes unrelated to the
extradition request.
|
FN3.
Restatement (Third) of Foreign Relations Law of the United
States ß 477 cmt. a (1987) (emphasis added); accord
David B. Sweet, Annotation, Application
of Doctrine of Specialty to Federal Criminal Prosecution of
Accused Extradited from Foreign Country, 112 A.L.R. Fed.
473, 517 (1993)
( "[I]n order to avoid a violation of the doctrine
of specialty ..., the prosecution must be based upon the
same evidence, facts, or acts as set forth in the request
for extradition.") (emphasis added); Mary-Rose Papandrea,
Comment, Standing to Allege Violations of the Doctrine of
Specialty: An Examination of the Relationship between the
Individual and the Sovereign, 62
U. Chi. L.Rev. 1187, 1187
(1995)
("The doctrine of specialty dictates that once the asylum
state extradites an individual to the requesting state under
the terms of an extradition treaty, that person can be
prosecuted only for the crimes specified in the extradition
request.") (emphasis added).
|
|
FN4.
Treaty of Extradition Between the United States of America
and the
|
|
United
States of Brazil, Jan. 13, 1961, U.S.-Braz., art. XXI, 15
U.S.T.2093 (emphasis added).
|
In suggesting that the specialty doctrine must be implied into the
United States/Brazil extradition treaty, the majority assumes,
without support, that the specialty doctrine is solely defined as
limiting prosecution to offenses *919
(Cite
as: 132 Wash.2d 852, *919 , 940 P.2d 1293,
**1327)
|
for
which extradition was granted. But, as the First Circuit Court of
Appeals pointed out:
Specialty ... is not a hidebound dogma, but must be applied in a
practical, commonsense fashion. Thus, obeisance to the principle of
specialty does not require that ... the prosecution always be limited
to specific offenses enumerated in the surrendering state's
extradition order.... [FN5]
In the present case, the specialty doctrine does not need to be
implied for it is already expressly incorporated into the United
States/Brazil extradition treaty, albeit in a form that is not
conducive to the majority's desired result. Thus, the question is not
whether the specialty doctrine should be
(Cite
as: 132 Wash.2d 852, *919, 940 P.2d 1293, **1327)
|
implied
in the United States/Brazil extradition treaty, but whether this
court can imply additional limitations on prosecution beyond the
express specialty provisions agreed upon by the United States and
Brazil.
A COURT MAY NOT IMPLY ADDITIONAL LIMITATIONS ON PROSECUTION IN THE
FACE OF EXPRESS LIMITATIONS INCLUDED IN THE TREATY
The majority relies on United
States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425
(1886)
for the proposition that an implied term of every extradition treaty
is that an extradited fugitive may be prosecuted only for crimes for
which he was surrendered. Yet, the majority, by its own analysis,
demonstrates that Rauscher
is not applicable in the present case.
In Rauscher,
an American merchant ship officer who was accused of murdering a
crewmember fled to Great Britain. The United States, pursuant to its
first extradition treaty, requested the fugitive's extradition for
murder; the request was subsequently granted. The defendant, however,
was subsequently tried and convicted of inflicting cruel and unusual
punishment instead of murder. The Supreme Court vacated the sentence
and held that the *920
(Cite
as: 132 Wash.2d 852, *920, 940 P.2d 1293, **1327)
|
defendant could be tried only for an offense "with which he is
charged in the extradition proceedings and for which he was delivered
up...." [FN6] Moreover, the Court rejected the State's
argument that the treaty's silence on the issue indicated that the
United States and Great Britain intended that
there be no limitations on prosecution.
Instead, the Court implied such a limitation into the treaty.
**1328
(Cite
as: 132 Wash.2d 852, *920, 940 P.2d 1293, **1328)
|
At
first blush, it might appear as though the Court had announced a rule
that such a limitation is implied in all extradition treaties as a
matter of course. Yet, the Court strictly limited its holding as an
interpretation of the extradition treaty with Great Britain:
"The right of one government to demand and receive from another the
custody of an offender who has sought asylum upon its soil, depends
upon the existence of treaty stipulations between them, and in all
cases is derived from, and is measured and restricted by, the
provisions, express or implied, of the treaty." [FN7]
Consistent with the rule that the treaty defines the scope of the
specialty doctrine, the Court initially looked to the text of the
treaty itself. [FN8] It was only after
determining that the treaty was silent on this issue that the Court
looked beyond the express treaty terms to determine whether the
parties intended to limit the scope of post-extradition prosecution.
Thus, it was only in the absence of express specialty provisions that
the Court turned to the comity principles in general, the specific
history between the United States and Great Britain on this issue in
particular, and the statutory references to limitations on
prosecution, in order to resolve this question.
The majority correctly identifies a treaty's silence on the issue as
an essential prerequisite for the Court to
*921
(Cite
as: 132 Wash.2d 852, *921, 940 P.2d 1293, **1328)
|
inquire beyond the language of the treaty itself. "The Court examined
the treaty and the history of relations between the United States and
Great Britain to determine whether the parties, in the absence of
express incorporation, nevertheless intended the doctrine of
specialty to be part of the treaty." [FN9] Crucial to the
Court's decision was the fact that the very issue had been the
subject of much dispute between the nations, with Great Britain
making very clear that it expected that the scope of prosecution
would be limited by the grant of extradition. [FN10] The
Court also looked to a statute, now codified at 18
U.S.C. ß 3192,
that authorizes the President to provide for an
extradited fugitive's transportation and safekeeping "until the final
conclusion of his trial for the crimes or offences specified in the
warrant of extradition." [FN11] Yet, the court resorted to
this language only to resolve "any doubt upon this construction of
the treaty." [FN12]
Thus, Rauscher
stands for the proposition that a court's overriding task is to
determine what the signatory nations to the extradition treaty
intended to include in the way of limitations on prosecution. Only
when the text of the treaty fails to provide expressly for such
limitations is the court then authorized to look beyond the treaty.
Lastly, when there is evidence that the signatory nations expected
that prosecution would be limited to charges for which surrender is
granted, the court may then imply this term into the treaty.
Curiously, the majority concedes that Rauscher
authorizes *922
(Cite
as: 132 Wash.2d 852, *922 , 940 P.2d 1293,
**1328)
|
courts to imply prosecution limitations only when the treaty fails to
provide expressly for such limitations:
Under Rauscher
the specialty doctrine may be implied where a treaty is silent on the
issue and there is no reason to assume the signatory nations did not
abide by the principles of comity. [FN13]
Indeed, the majority must concede this point. Were it the case that
Rauscher
prohibits the prosecution of any extradited fugitive for
(Cite
as: 132 Wash.2d 852, *922, 940 P.2d 1293, **1328)
|
offenses
**1329
(Cite
as: 132 Wash.2d 852, *922, 940 P.2d 1293, **1329
)
|
other than those for which extradition was granted, the majority
would need to explain, and indeed has failed to offer any explanation
for, the numerous circuit court decisions upholding such convictions
against alleged specialty doctrine violations. [FN14]
|
FN14.
See, e.g., United
States v. Andonian, 29 F.3d 1432, 1435 (9th
Cir.1994),
cert. denied, 513
U.S. 1128, 115 S.Ct. 938, 130 L.Ed.2d 883
(1995);
United
States v. Riviere, 924 F.2d 1289 (3d
Cir.1991);
Leighnor
v. Turner, 884 F.2d 385 (8th
Cir.1989);
United
States v. Sensi, 879 F.2d 888
(D.C.Cir.1989);
United
States v. Levy, 905 F.2d 326, 328 (10th
Cir.1990),
cert. denied, 498
U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 778
(1991);
United
States v. Diwan, 864 F.2d 715 (11th
Cir.1989);
United
States v. Kaufman, 858 F.2d 994 (5th
Cir.1988);
United
States v. Cuevas, 847 F.2d 1417, 1427 (9th
Cir.1988),
cert. denied, 489
U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185
(1989);
United
States v. Najohn, 785 F.2d 1420, 1422 (9th
Cir.1986);
Fiocconi
v. Attorney Gen., 462 F.2d 475 (2d
Cir.),
cert. denied, 409
U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511
(1972).
|
Unlike the treaty at issue in Rauscher,
most United States extradition
(Cite
as: 132 Wash.2d 852, *922, 940 P.2d 1293, **1329)
|
treaties,
including the one with Brazil, now expressly define the limits of
post-extradition prosecution. Again, the majority concedes that
"[i]n determining whether there has been a violation to the
specialty doctrine, courts have consistently examined the terms of
the treaty for any limitations on prosecution." [FN15]
Indeed, the majority cites a formidable list of federal extradition
cases in which the courts, rather than implying limitations into the
applicable treaties, had confined themselves to the specialty
doctrine as expressly provided for in the treaties at issue.
[FN16]
|
FN16.
Majority at 1320-1321 n. 75. See, e.g., United
States v. Baramdyka, 95 F.3d 840, 845 n. 3 (9th
Cir.1996)
(citing Treaty Providing for the Extradition of Fugitives
from Justice, Apr. 17, 1900, U.S.- Chile, art. VII, 32 Stat.
1850), cert. denied, ---
U.S. ----, 117 S.Ct. 1282, 137 L.Ed.2d 357
(1997);
United
States v. Puentes, 50 F.3d 1567, 1575 (11th
Cir.)
(citing Treaty on Extradition and Cooperation in Penal
Matters, Apr.
6,
1973, U.S.-Uru., art. XIII, P.I.A.S. 10850), cert. denied,
516
U.S. 933, 116 S.Ct. 341, 133 L.Ed.2d 239
(1995);
United
States v. Fowlie, 24 F.3d 1059, 1064 n. 2, 1065
(9th
|
|
Cir.1994)
(citing Extradition Treaty Between the United States and
Mexico, May 4, 1978, U.S.-Mex., 31 U.S.T. 5059), cert.
denied, 513
U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 643
(1995);
United
States v. Andonian, 29 F.3d 1432, 1435 (9th
Cir.1994)
(citing Treaty on Extradition and Cooperation in Penal
Matters, Apr.
6,
1973, U.S.-Uru., art. 13, T.I.A.S. 10850), cert. denied,
513
U.S. 1128, 115 S.Ct. 938, 130 L.Ed.2d 883
(1995);
United
States v. Khan, 993 F.2d 1368, 1373 n. 4 (9th
Cir.1993)
(citing Extradition Treaty, Dec. 22, 1931, U.S.-Pak., art.
7, 47 Stat. 2124); United
States v. Levy, 905 F.2d 326, 328 (10th
Cir.1990)
(citing Extradition Treaty, June 8, 1972, U.S.-U.K., art.
XII(1), 28 U.S.T. 227), cert. denied, 498
U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 778
(1991);
Leighnor
v. Turner, 884 F.2d 385, 386 (8th
Cir.1989)
(citing Treaty Concerning Extradition, June 20, 1978, U.S.-
F.R.G., 32 U.S.T. 1485); United
States v. Sensi, 879 F.2d 888, 895
(D.C.Cir.1989)
(citing Extradition Treaty, June 8, 1972, U.S.-U.K., art.
XII, 28 U.S.T. 223); United
States v. Herbage, 850 F.2d 1463, 1465 (11th
Cir.1988)
(citing Extradition Treaty Between the Government of the
United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland, June 8,
1972/Oct. 21, 1976, U.S.-U.K., art. XII, 28 U.S.T. 227)
cert. denied, 489
U.S. 1027, 109 S.Ct. 1158,
103
|
|
L.Ed.2d
217 (1989);
United
States v. Cuevas, 847 F.2d 1417, 1427 (9th
Cir.1988)
(citing Treaty on Extradition, U.S.-Switz., art. IX, May 14,
1900, 31 Stat.1928, T.S. No. 354), cert. denied,
489
U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185
(1989);
United
States v. Thirion, 813 F.2d 146, 151 (8th
Cir.1987)
(citing Treaty Respecting Extradition, Feb. 15, 1939,
U.S.-Monaco, 54 Stat. 1780); United
States v. Najohn, 785 F.2d 1420, 1422 (9th
Cir.1986)
(citing Treaty on Extradition, May 14, 1900, U.S.-Switz.,
art. IX, 31 Stat.1928); Fiocconi
v. Attorney Gen., 462 F.2d 475, 481 (2d
Cir.)
(citing Extradition Convention, 1868, U.S.- Italy, art. III,
15 Stat. 631), cert. denied, 409
U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511
(1972).
|
The majority, having identified an overwhelming
*923
(Cite
as: 132 Wash.2d 852, *923, 940 P.2d 1293, **1329)
|
number of cases in which the courts confined their specialty doctrine
analysis to the express limitations in the relevant treaties, fails
to offer a single case in which a court implied prosecution
limitations beyond the express limitations included in the relevant
treaty. This failure is understandable since it is well settled that
the only limitations on post-extradition prosecution are those
contained in the applicable extradition treaty. "To determine the
nature and extent of the right we must look to the treaty which
created it." [FN17]
|
FN17.
Factor
v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78
L.Ed. 315 (1933);
accord United
States v. Andonian, 29 F.3d 1432, 1435 (9th
Cir.1994)
("We look to the language of the applicable treaty to
determine the protection an extradited person is afforded
under the doctrine of specialty."), cert. denied,
513
U.S. 1128, 115 S.Ct. 938, 130 L.Ed.2d 883
(1995).
|
**1330
(Cite
as: 132 Wash.2d 852, *923, 940 P.2d 1293, **1330)
|
Although the majority is correct that international law is
incorporated into domestic law, [FN18] "extradition is 'not
*924
(Cite
as: 132 Wash.2d 852, *924, 940 P.2d 1293, **1330)
|
uniformly recognized as part of customary international law.' "
[FN19] "[B]ecause United States extradition practice
is based solely on the existence of a treaty," the Supreme Court has
rejected the suggestion that extradition cases are governed by
customary international law and has "limited the practice to a strict
interpretation of the applicable treaty." [FN20]
|
FN18.
See majority at 1322.
|
|
153
(1995)
(quoting 1 M. Cherif Bassiouni, International Extradition:
United States Law and Practice 319 (2d rev.
ed.1987)).
|
|
FN20.
M. Cherif Bassiouni, International Extradition: United
States Law and Practice 404-05 (3d rev. ed.1996).
|
This view comports with Brazil's understanding with respect to any
limitations on prosecution:
[L]egally binding international acts are the only legal
instruments capable of binding two or more sovereign States together.
Thus, provided that the terms of the Treaty of Extradition ... are
respected, it will be incumbent upon the justice system of the United
States of America to establish a suitable punishment for the crime of
arson in the first degree, resulting in four deaths and the
consequences thereof, under U.S. law. [FN21]
|
FN21.
Letter from Nelson A. Jobim, Minister of State for Justice,
Braz., to Janet Reno, Att'y Gen., U.S. (Sept. 26,
1996).
|
Thus, the question of whether the State may prosecute Pang for felony
murder depends on the express specialty provisions of the United
States/Brazil extradition treaty.
THE UNITED STATES/BRAZIL EXTRADITION TREATY PROHIBITS PROSECUTION
ONLY FOR CHARGES THAT ARE NOT INCLUDED IN THE EXTRADITION REQUEST
The United States/Brazil extradition treaty provides that: "A person
extradited by virtue of the present Treaty may not be tried or
punished by the requesting State for any crime or offense committed
prior to the request for his extradition, other than that which gave
rise to the *925
(Cite
as: 132 Wash.2d 852, *925, 940 P.2d 1293, **1330)
|
request ...." [FN22] "[T]reaties are to be
interpreted in accordance with the plain meaning of the words."
[FN23] The State requested Pang's extradition on arson and
first degree felony murder charges arising out of his act of
intentionally setting a fire that resulted in death. It is undisputed
that this act is an extraditable offense. Since Pang is not being
prosecuted for any offenses other than those that gave rise to the
request for extradition, the State's prosecution of Pang for murder
does not violate the United States/Brazil extradition treaty and
fully complies with the express limitations negotiated by the United
States and Brazil.
|
FN22.
Treaty of Extradition Between the United States of America
and the United States of Brazil, Jan. 13, 1961, U.S.-Braz.,
art. XXI, 15 U.S.T.2093 (emphasis added).
|
|
FN23.
Bassiouni, supra, at 411.
|
Giving effect to the plain language of the treaty and refusing to
imply additional limitations finds ample case support. The majority
itself concedes that two circuit court decisions have affirmed
convictions on charges other than those for which extradition was
granted based on the express language of the treaties at issue.
[FN24] The majority never explains how these cases could have
been decided consistent with a rule that purportedly prohibits such
prosecutions in every extradition case.
For example, in Fiocconi
the defendants were extradited from Italy to the United States on
charges of conspiring to import narcotics. They were later
additionally charged and convicted of substantive narcotics crimes.
They appealed their convictions, arguing that under Rauscher
there was an implicit prohibition against
prosecution for charges other than the conspiracy charge for
**1331
(Cite
as: 132 Wash.2d 852, *925, 940 P.2d 1293, **1331)
|
which they were extradited. In upholding their convictions the
circuit court looked to the United States/Italy extradition treaty,
which provided, much like the United States/Brazil extradition
*926
(Cite
as: 132 Wash.2d 852, *926 , 940 P.2d 1293,
**1331)
|
treaty, that: "the person ... delivered up for the crimes enumerated
... shall in no case be tried for any ... crime, committed previously
to that for which his ... surrender is asked." [FN25] The
court observed:
|
FN25.
Fiocconi,
462 F.2d at 481
(quoting Extradition Convention, 1868, U.S.-Italy, art. III,
15 Stat. 631) (emphasis added) (omissions in
original).
|
If the countries had intended that the requesting government could
not try the accused for any crime committed before the time of his
surrender other than the crime for which he was extradited, they
could have accomplished this by adopting one of the standard clauses
to that end. [FN26]
|
FN26.
Fiocconi,
462 F.2d at 481
(citing 1 John B. Moore, A Treatise on Extradition and
Interstate Rendition ßß 148-49, at 194-96
(1891)).
|
(Cite
as: 132 Wash.2d 852, *926, 940 P.2d 1293, **1331)
|
In
doing so, the court expressly rejected the suggestion that under
Rauscher
greater limitations on prosecution may be implied in the face of
express treaty limitations.
Another example is United
States v. Sensi, 879 F.2d 888
(D.C.Cir.1989),
in which the defendant was convicted of charges other than those for
which he was extradited. The court upheld the convictions on the
basis that the treaty prohibited prosecution only for offenses other
than those "established by the facts in respect of which his
extradition has been granted." [FN27] The court acknowledged
that the crimes charged were not those for which extradition was
granted. The crimes were based, however, on the same underlying facts
and, therefore, complied with the specialty provisions in the treaty.
Thus, there was no violation of the specialty doctrine.
[FN28] Similarly, had the United States and Brazil intended
to limit prosecution of fugitives to crimes for which the asylum
country agrees to extradite, they could have used language to that
end. Such limitation is included in many of our extradition treaties.
[FN29]
|
FN27.
Sensi,
879 F.2d at 895
(quoting Extradition Treaty, June 8, 1972, U.S.-U.K., art.
XII, 28 U.S.T. 233) (emphasis altered).
|
|
FN29.
See, e.g., Extradition Treaty, Mar. 19, 1924, U.S.-Bulg.,
art. IV, 43 Stat. 1886 ("No person shall be tried for any
crime or offense other than that for which he was
surrendered.") (emphasis added); Treaty Providing for the
Extradition of Fugitives from Justice, Apr. 17, 1900,
U.S.-Chile, art VIII, 32 Stat. 1850 ("No person surrendered
... shall ... be triable or tried or be punished for any
crime or offense committed prior to his extradition, other
than that for which he was delivered up ....") (emphasis
added); Treaty on Extradition Between the United States of
America and Canada, Dec. 3, 1971, U.S.-Can., art. 12, 27
U.S.T. 983 ("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 ....") (emphasis
added).
|
*927
(Cite
as: 132 Wash.2d 852, *927, 940 P.2d 1293, **1331)
|
Indeed, the majority cites only a single post-Rauscher
case in which a court held that a fugitive cannot be prosecuted for
offenses other than those for which extradition was granted. Yet,
that case was based on the express language of the treaty, which
included just such a limitation. In
United
States v. Khan, 993 F.2d 1368 (9th
Cir.1993),
the United States requested that Pakistan extradite a fugitive
charged with conspiracy to import heroin and with using a
communication facility to facilitate the conspiracy. Pakistan
directed that the defendant could be "surrendered ... for trial under
the relevant American Law," [FN30] yet the Pakistani
extradition materials referred only to the conspiracy charge.
[FN31] The court held that because Pakistan did not
unambiguously agree to extradite the defendant on the communications
facility charge, the specialty doctrine had been violated and the
conviction on that charge should be reversed. [FN32] Yet, the
court did so because "[t]he operative treaty in this case
contains the following language: 'A person surrendered can in no case
be [prosecuted] ... for any other crime or offence, or on
account of any other matters, than those for which the
**1332
(Cite
as: 132 Wash.2d 852, *927, 940 P.2d 1293, **1332)
|
extradition shall have taken place.' " [FN33] The court
acknowledged that the Sensi
court had held that the specialty doctrine is satisfied as long as
the defendant is charged with crimes arising out of the same facts
for which his extradition was granted. However, the court clarified
that that holding was based on the more expansive version of the
*928
(Cite
as: 132 Wash.2d 852, *928, 940 P.2d 1293, **1332)
|
specialty doctrine expressly incorporated into the treaty at issue in
that case. [FN34]
Thus, an extraditee may challenge his prosecution for crimes other
than those for which extradition was granted when the express
specialty provisions limit prosecution to those offenses. When the
extradition treaty expressly provides for lesser protection, however,
the extraditee may assert only the limits of any rights as expressed
in the treaty. Since the United States requested that Pang be
extradited on four felony murder counts as well as arson, and the
extradition treaty with Brazil limits the offenses that may be
prosecuted only to those "which gave rise to the request," there is
simply no violation of the treaty terms.
A GOOD FAITH READING OF THE UNITED STATES/BRAZIL EXTRADITION TREATY
IS CONSISTENT WITH THE PLAIN MEANING OF THE EXPRESS SPECIALTY
TERMS
I agree with the majority that we must
interpret treaties in good faith. [FN35] However, the
Johnson
Court's admonition that we construe extradition treaties in good
faith is fully met by giving effect to the plain language of the
United States/Brazil extradition treaty.
In Johnson,
the defendant was indicted on federal charges of fraud and conspiracy
to commit fraud; yet, the United States proceeded upon only the
conspiracy charge. After the defendant was convicted, he fled to
Canada and the United States requested his extradition. Canada
refused to extradite, having determined that conspiracy to commit
fraud was not an extraditable offense. The United States recharged
the substantive fraud count, requested extradition for that offense,
and Canada extradited the fugitive. The United States then imprisoned
the defendant *929
(Cite
as: 132 Wash.2d 852, *929, 940 P.2d 1293, **1332)
|
for
the conspiracy conviction. In affirming a lower court order
discharging the defendant, the Supreme Court emphasized that an
extradition treaty:
should be construed in accordance with the highest good faith, and
that it should not be sought by doubtful construction of some of its
provisions to obtain the extradition of a
person for one offense and then punish him for another and different
offense. [FN36]
The Court was rightly concerned with the government's blatant
manipulation of the extradition process to obtain extradition for one
offense as a ruse for obtaining jurisdiction for another that "is
entirely different from the one for which he was extradited."
[FN37] As discussed earlier, this is the unifying purpose
underlying the various versions of the specialty doctrine.
In the present case, however, the United States requested and Brazil
granted extradition for the same criminal act: the intentional
burning of a building that resulted in death. The majority mistakenly
assumes that the relevant inquiry is whether the two nations
criminalize the act in the same way. Yet, the Supreme Court has made
clear that:
The 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 the 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.
[FN38]
**1333
(Cite
as: 132 Wash.2d 852, *929, 940 P.2d 1293, **1333)
|
Extradition treatises universally recognize this distinction.
[FN39]
|
FN39.
See Geoff Gilbert, Aspects of Extradition Law 106 (1991)
("It is the facts of the case that are all important....
[S]pecialty allows the fugitive to be prosecuted for
any charge made out by the facts on which surrender was
ordered."); I.A. Shearer, Extradition in International Law
146 (1971) ("[T]he only question is whether the acts
constituting the offence charged would, if committed in the
requested State, constitute an offence (not necessarily the
offence charged) by the law of that State and made
extraditable in the treaty.") (emphasis in
original).
|
Thus, allowing the State to prosecute Pang for murder
*930
(Cite
as: 132 Wash.2d 852, *930, 940 P.2d 1293, **1333)
|
does not find us engaging in "doubtful construction" in order to
allow prosecution for "another and separate" offense from that for
which Pang was extradited. Pang is accused of
intentionally setting a fire that resulted in death. Under both
Washington and Brazilian law this act is criminal and is more
severely punished than simple arson because of the resulting death.
Although the act is differently codified in the two countries, as
Collins
makes clear, the dispositive inquiry is whether the act is criminal
in both jurisdictions. Therefore, giving effect to the plain meaning
of the United States/Brazil extradition treaty does not violate our
obligation to construe treaties in good faith.
THE "REAL FACTS" DOCTRINE PROHIBITS THE TRIAL COURT FROM CONSIDERING
THE DEATHS AS AGGRAVATING FACTORS IN SENTENCING
The majority attempts to mitigate the injustice of its decision with
the suggestion that, whether or not Pang is convicted for the felony
murders, the trial court could depart from the standard range arson
sentence and impose the statutory maximum of life imprisonment.
[FN40] The majority's unstated assumption is that the
firefighters' deaths could be used as aggravating factors justifying
the imposition of an exceptional sentence. Indeed, as the majority
points out, the Brazilian Supreme Court assumed that Pang could be as
severely punished whether the firefighters' deaths served as the
basis for an exceptional arson sentence or separate felony murder
sentences. [FN41]
|
FN41.
See Majority at 1315.
|
However, despite the trial court's discretion to depart from the
standard range based on the presence of aggravating circumstances,
this discretion is sharply limited *931
(Cite
as: 132 Wash.2d 852, *931, 940 P.2d 1293, **1333)
|
by
the "real facts doctrine." As Justice Smith pointed out in
State
v. Johnson, 124 Wash.2d 57, 71 n. 33, 873 P.2d 514
(1994):
"The 'real facts' concept of RCW
9.94A.370(2)
excludes consideration of either uncharged crimes or crimes charged
but later dismissed." [FN42] RCW
9.94A.370(2)
provides, in part:
Facts that establish the elements of a more serious crime or
additional crimes may not be used to go outside the presumptive
sentence range except upon stipulation or when specifically provided
for in RCW
9.94A.390(2)(c), (d), (f), and (g).
[FN43]
|
FN43.
RCW
9.94A.390
was amended by Laws of 1996, ch. 248, ß 2 and by
|
|
Laws
of 1996, ch. 121, ß 1 changing subsection (2)(c), (d),
(f), and (g) to subsection (2)(d), (e), (g), and (h)
respectively. These statutory exceptions, which are for
certain major economic offenses, violations of the Uniform
Controlled Substances Act, sexual abuse, or domestic
violence, would not apply in the present case.
|
In the present case, the arson deaths cannot be used to depart from
the standard range because they establish an essential element of
first degree felony murder. [FN44] And there can be no
dispute that felony murder is both a separate and more serious crime
since it is precisely because Washington penalizes Pang's alleged act
as two separate crimes that we are deciding this case at all. With
the murder charges dismissed and the trial court's inability to
otherwise consider the deaths, the trial court will have no
**1334
(Cite
as: 132 Wash.2d 852, *931, 940 P.2d 1293, **1334)
|
choice but to enter a standard range sentence for first degree arson,
which, as the majority points out, would be approximately two years
in Pang's case. [FN45]
|
FN44.
A person is guilty of murder in the first degree when:
|
|
(c)
He or she commits or attempts to commit the crime of ...
|
|
(4)
arson in the first or second degree ... and in the course of
or in
|
|
furtherance
of such crime or in immediate flight therefrom, he or she,
or another participant, causes the death of a person other
than one of the participants
|
*932
(Cite
as: 132 Wash.2d 852, *932, 940 P.2d 1293, **1334)
|
CONCLUSION
The
majority's decision to dismiss the murder charges defeats the very
purpose of extradition:
The law of extradition is ... founded upon the broad principle that
it is to the interest of civilized communities that crimes,
acknowledged to be such, should not go unpunished, and it is part of
the comity of nations that one state should afford to another every
assistance towards bringing persons guilty of such crimes to justice.
[FN46]
|
FN46.
Mary-Rose Papandrea, Comment, Standing to Allege Violations
of the Doctrine of Specialty: An Examination of the
Relationship between the Individual and the Sovereign,
62
U.Chi.L.Rev. 1187, 1192
(1995)
(quoting
|
(Cite
as: 132 Wash.2d 852, *932, 940 P.2d 1293, **1334)
|
|
In
re Arton, 1 QB 108, 111 (1896)).
|
Yet, under the majority's holding, the deaths of four innocent
victims will go unpunished, even though the laws of both Brazil and
Washington recognize arson resulting in death as a more serious crime
than arson alone. Thus, rather than furthering the ends of justice,
the majority rewards Pang's calculated flight and ensures that
neither nation's will is done by immunizing Pang from any liability
for the deaths he may have caused. Because Pang's prosecution for
murder would be wholly consistent with both our treaty obligations
toward Brazil and the overwhelming weight of authority, Pang should
stand trial for murder and arson.
DOLLIVER and TALMADGE, JJ., concur.
ALEXANDER, Justice (concurring in dissent).
I am in complete agreement with the chief justice's conclusion in
dissent that Martin Pang should stand trial for four counts of first
degree murder and one count of arson. I write this concurrence simply
to express my view that the dissent and majority opinions should not
speculate on whether or not the real facts doctrine would preclude
the trial judge from imposing a sentence on
Pang for first degree arson that would exceed a standard range
sentence for that offense. *933
(Cite
as: 132 Wash.2d 852, *933 , 940 P.2d 1293,
**1334)
|
In
my view, it is entirely inappropriate for this court to pass judgment
on the propriety of a sentence that has not yet and may never be
imposed. Sentencing bridges need to be crossed only if and when an
individual is convicted of an offense. Any speculation about the
validity of a sentence that has not or may never be imposed is dicta
of the first order and should not be a part of either the majority or
dissenting opinion.
OPINION
APPENDIX A
FEDERAL
SUPREME COURT
11/30/95
FULL SESSION
EXTRADITION No. 00006541/120
ORIGIN: UNITED STATES OF AMERICA
ASSIGNED: JUSTICE NERI DA SILVEIRA
REQUESTED BY: THE GOVERNMENT OF THE UNITED STATES OF AMERICA
PERSON SOUGHT: MARTIN SHAW PANG
REPORT
JUSTICE NERI DA SILVEIRA (ASSIGNED):--The Embassy of the United
States of America contacted the Brazilian Government through the
Ministry of Foreign
(Cite
as: 132 Wash.2d 852, *933, 940 P.2d 1293, **1334)
|
Affairs,
and citing Diplomatic Note No. 083, of March 7, 1995, as well as The
Brazil-United States Extradition Treaty of January 13, 1961 Article
VIII and Additional Protocol of June 18, 1962, requested the
provisional arrest, for extradition purposes, of MARTIN SHAW PANG,
a.k.a. MARK WONG, a.k.a. SUEN HING WAH, an American citizen, born
November 12, 1955, following arrest warrant issued on March 3, 1955,
[ 1 ] by Judge Bill Stream, [ 2 ] of King County
Court, Seattle, State of Washington, to be tried for [crimes]
in the first degree by the Superior Court of said County, according
to **1335
(Cite
as: 132 Wash.2d 852, *933, 940 P.2d 1293, **1335)
|
the
facts described in the above mentioned Note No. 83, fls. 5--6 PPE
217, attached:
The facts of this case indicate that on January 5th, 1995, a little
after 19:03, the Seattle Fire Department responded to a fire at the
Mary Pang Food Warehouse, Inc. While fighting the fire several
firemen got to the first floor in the flooded warehouse. Without any
warning whatsoever, the floor gave in, tumbling the firemen to the
basement. Four firemen died in the fire.
On December 13, 1994 an agent of the Bureau of Alcohol Tobacco and
Firearms (ATF) was contacted by a witness who said that the "Mary
Pang" warehouse was going to be "burned". The witness told the agent
that Pang was advised to remove his personal belongings from the
warehouse.
On another occasion, Pang told the witness, in detail, how the fire
would occur and it really happened that way. On another occasion,
Pang also removed his personal belongings from
the building.
In December, Pang took a close friend to the warehouse and told him
that the food company was not doing well. He said that the warehouse
would burn down in January and that it would look like transients set
the fire. Pang told a number of other people that the warehouse would
burn down.
[1] Translator's Note: This is an obvious typing error in the
original. It should read: 1995.
[2] "Judge" Bill Stream should instead be identified as
"Deputy Clerk Bill Stream."
*934
(Cite
as: 132 Wash.2d 852, *934, 940 P.2d 1293, **1335)
|
After the fire Pang told another witness that it looked like some
transient had set the warehouse on fire and described how it had
happened. Pang described how the fire happened even before the
information had been announced by the investigators. Inevitably,
Pang's statements to his friends came very close to a confession.
Arson Investigators announced that the fire had been intentionally
set, causing the death of four fire-fighters.
Murder is described in Article II Paragraph I of the Treaty of
Extradition Between the United States of America and the United
States of Brazil. Seizure of Assets is described in Aricle XX of the
(same) treaty.
Because the request for the provisional arrest for purposes of
extradition of MARTIN SHAW PANG, a.k.a. MARK WONG, a.k.a. SUEN HING
WAH, had been sufficiently documented, I
ordered the provisional arrest of the above mentioned alien,
according to Article 81--Estatuto do Estrangeiro [Foreign
National Statutes] and according to what had been decided on the
Question of the Order for Extradition Request No. 478-6, which
determined that an arrest warrant be issued, to be executed by the
Federal Police Department, according to fls. 12 of writ, PPE
documents No. 217-3 / 420, attached.
On May 15, 1995, the Minister of Justice, through Dispatch / GM / MJ
/ No. 00435, expedited probable cause and other formal documents for
the extradition of Martin Shaw Pang, which had been sent by the
American Embassy, through diplomatic channels, according to
Diplomatic Note No. 169 fls. 6 / 7, where it reads (fls. 6):
Pang is sought by the State of Washington to be tried for Intentional
Homicide and Arson. He is the object of Criminal Information
95-1-00473-0, presented on March 17, 1995, at the King County
Superior Court, Seattle, *935
(Cite
as: 132 Wash.2d 852, *935, 940 P.2d 1293, **1335)
|
Washington, accusing him of: (1) Murder in the First Degree, in
violation of RCW [Revised Code of the State of Washington]
Section
9A.32.030;
and (2) Negligent Fire-Setting [i.e. Arson] in the First
Degree, in violation of Section
9A.48.020.
An arrest warrant was issued by Judge Bill Stream [2] of King
[County] Court, on March 3, 1995.
After capture [and] in the custody of the Federal Police
Department, in the State of Rio de Janeiro, I
entrusted the Federal Justice [System] of that State with the
interrogation of the person sought (fls.261).
The person sought for extradition was interrogated in the presence of
his counsel, Dr. Paulo Freitas Ribeiro. The content of his statements
are to be found on pgs. 274 / 277, which I cite (fls.275-276):
... has knowledge of the penalties that may be imposed for the crimes
[he] is being accused of; that a few months before
**1336
(Cite
as: 132 Wash.2d 852, *935, 940 P.2d 1293, **1336)
|
the
fire the insurance premium had been reduced, and besides, he was not
going to be one of the beneficiaries of the insurance; that,
[he] adds, [he] is not in need of money, due to the
sale of real-estate property he has sufficient funds in hand; that it
is true that he has signed a confession of the crimes, but that he
had done so under duress; that this confession was given at the Rio
de Janeiro Federal Police facilities, in the presence of American
police officers only; that those agents said they were FBI; that this
happened at night; that the American agents requested a room from the
[Brazilian] federal police solely to interrogate him, which
the local police declined; that he did not suffer any type of bad
treatment, but that, as he was under intense pressure, worried about
the welfare of his family, he opted to sign, because the agents
promised they would reduce the pressure being applied on his family
in the USA; that, at the time he signed his confession there were no
Brazilian federal agents nearby; that,
according to the FBI agents, this was the best solution.
In his defense, fls. 280 / 300, the lawyers for the person sought for
extradition, affirm: "The Defendant does not want to avoid
extradition, because he wishes to return to his Country to establish
his innocence", affirming that the Defense "will not attack the
extradition request, but that the extradition be done in a partial
manner, and also that conditions be imposed on the penalty to be
eventually carried out, to the extent that Brazilian Law does not
permit life imprisonment." It is alleged, to sum it up, that the
Defense will be structured in the following manner:
a) According to Article 85 Par. 2 of Law No. 6.815 / 90, instead of a
trial, that a judicial order be entered, so that the requesting State
send to this Court the text of the alleged violated law.
b) That the extradition be denied as to Intentional Homicide, because
of lack of elements in this respect.
c) Denial of Extradition for the Crime of Arson with Risk of Loss of
Life, [but] deferment of extradition for the crime of Arson
in the Second Degree.
d) That the hand-over [of the Defendant] be conditioned to
the promise of *936
(Cite
as: 132 Wash.2d 852, *936, 940 P.2d 1293, **1336)
|
limiting the penalty eventually given to the Defendant to the maximum
allowed by Brazilian law and that the other conditions contained in
the Foreign National Statutes be adhered to.
In a writ, fls. 321, I determined that the requesting State provide,
within twenty days, a set of authenticated copies of law texts
invoked in the case, including the order, which has been done by
Diplomatic Notes Nos. 359 and 415, and documents accompanying them
(fls. 329 / 359 to 379 / 399).
The Office of the Attorney-General of the Republic, in its opinion on
fls. 362 / 373, deemed to grant the extradition, with no exceptions.
This is my report. [signed] J. Neri
ALM
FEDERAL SUPREME COURT
EXTRADITION No. 00006541 / 120
VOTE
JUSTICE
NERI DA SILVEIRA (ASSIGNED): The charge of 3 / 3 / 1995 before the
King County Court against the person sought, with the State of
Washington as the Plaintiff and Martin Shaw Pang as the Defendant is
to be found in fls. 150- 159, with the following counts of Murder in
the First Degree (fls. 150 / 152):
I, Norm Maleng, Prosecuting Attorney for King County, in the name and
by the authority of the State of Washington, do accuse MARTIN S. PANG
of the crime of Murder in the First Degree, committed as follows:
That the Defendant MARTIN S. PANG, together with another, in King
County, Washington, on or about January 5, 1995, while committing and
attempting to commit the crime of Arson in the
First Degree, and in the course of and in the furtherance of said
crime and in immediate flight therefrom, did cause the death of
Lieutenant Walter Kilgore, a human being who was not a participant in
the crime, and who died on or about January 5, 1995;
**1337
(Cite
as: 132 Wash.2d 852, *936, 940 P.2d 1293, **1337)
|
Contrary to RCW
9A.32.030 (1)(c),
and against the peace and dignity of the State of Washington.
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Murder in the First Degree, a crime of
the same or similar character as another crime charged herein, and
committed as follows:
That the defendant MARTIN S. PANG, together with another, in King
County, Washington, on or about January 5, 1995, while committing and
attempting to commit the crime of Arson in the First Degree, and in
the course *937
(Cite
as: 132 Wash.2d 852, *937, 940 P.2d 1293, **1337)
|
of
and in the furtherance of said crime and in immediate flight
therefrom, did cause the death of Lieutenant Gregory A. Shoemaker, a
human being who was not a participant in the crime, and who died on
or about January 5, 1995;
Contrary to RCW
9A.32.030 (l )(c),
and against the peace and dignity of the State of Washington.
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Murder in the First Degree, a crime of
the same or similar character as another crime charged herein, and
committed as follows: That the Defendant
MARTIN S. PANG, together with another, in King County, Washington, on
or about January 5, 1995, while committing and attempting to commit
the crime of Arson in the First Degree, and in the course of and in
the furtherance of said crime and in immediate flight therefrom, did
cause the death of Fire-fighter James T. Brown, a human being who was
not a participant in the crime, and who died on or about January 5,
1995;
Contrary to RCW
9A.32.030 (1)(c),
and against the peace and dignity of the State of Washington.
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Murder in the First Degree, a crime of
the same or similar character as another crime charged herein, and
committed as follows:
That the defendant MARTIN S. PANG, together with another, in King
County, Washington, on or about January 5, 1995, while committing and
attempting to commit the crime of Arson in the First Degree, and in
the course of and in the furtherance of said crime and in immediate
flight therefrom, did cause the death of Fire-fighter Randall R.
Terlicker, a human being who was not a participant in the crime, and
who died on or about January 5, 1995;
Contrary to RCW
9A.32.030 (1)(c),
and against the peace and dignity of the State of Washington.
Afterwards, on 3 / 17 / 1995, the Information was amended, accusing
the Defendant, now the person sought, of Arson
in the First Degree [Count V], a crime of similar character,
a class "A" felony (intentional crime), "for which", according to
fls. 134, "there is the possibility of life in prison". Fls. 178 /
179 describe Count V as follows:
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse
MARTIN S. PANG of the crime of Arson in the First Degree, a crime of
the same or similar character and based on a series of acts connected
together with another crime charged herein, which crimes were part of
a common scheme or plan, and which crimes were so closely connected
in respect to time, place and occasion that it would be difficult to
separate proof of one charge from proof of the other, committed as
follows:
That the Defendant MARTIN S. PANG in King County, Washington on or
*938
(Cite
as: 132 Wash.2d 852, *938, 940 P.2d 1293, **1337)
|
about January 5, 1995, did knowingly and maliciously cause a fire or
explosion located at 811 Seventh Avenue South (the Mary Pang
Warehouse), Seattle, which was manifestly dangerous to any human
life, including firemen;
Contrary to RCW
9A.48.020 (1)(a),
and against the peace and dignity of the State of Washington.
Therefore, according to the amended Information, the person sought is
charged with four counts of Murder in the First Degree and one count
of Arson in the First Degree. These crimes, [now] under
scrutiny, correspond [**1338
(Cite
as: 132 Wash.2d 852, *938, 940 P.2d 1293, **1338
)
|
to
(Cite
as: 132 Wash.2d 852, *938, 940 P.2d 1293, **1338)
|
crimes]
found in the Brazilian Criminal Law Code, in Arts. 121, as to Murder,
"caput" [first sentence]--Intentional Homicide, and 250,
"caput" Intentional Fire-Setting.
In a preliminary manner, after the fire and death of the
fire-fighters, who intervened while carrying out their duties,
occurred, at the beginning of January of the year mentioned, there is
no [reason] here to talk about extinction of punishment,
through the imposition of punitive action, whether according to State
of Washington legislation, or Brazilian criminal law. The State of
Washington sentencing guidelines, according to the Revised Code of
Washington are found in fls. 356-358. References concerning the
Brazilian Criminal Law Code, are found in Article 109, I, as to the
homicide found in Article 121, "caput", and in Article 109, III, for
Intentional Fire-Setting (Article 250).
Arson in the First Degree has the following definition in
Section
9A.48.020
(fls.135):
9A.48.020. Arson in the First Degree.
(1) A person is guilty of Arson in the First Degree if he knowingly
and maliciously:
(a) Causes a fire or explosion which is manifestly dangerous to any
human life, including firemen. Murder in the
First Degree is defined in Section
9A.32.030,
cited (fls.134):
(1) A person is guilty of Murder in the First Degree when:
..........
(c) He or she commits or attempts to commit the crime of either: (1)
Robbery in the First or Second Degree, (2) Rape in the First or
Second Degree, (3) Burglary in the First Degree, (4) Arson in the
First or Second Degree, or (5) Kidnapping in the First or Second
Degree, and in the course of or in furtherance of such crime or in
immediate flight therefrom, he or she, or another participant, causes
the death of a person other than one of the participants: except that
in any prosecution under this subdivision (1)(c) in which the
defendant was not the only participant in the underlying crime, if
established by the defendant by a preponderance of the evidence, it
is a defense that the defendant:
(i) Did not commit the homicidal act or in anyway solicit, request,
command, importune, cause or aid the commission thereof; and
*939
(Cite
as: 132 Wash.2d 852, *939, 940 P.2d 1293, **1338)
|
ii)
Was not armed with a deadly weapon, or any instrument, article; or
substance readily capable of causing death or serious physical
injury; and
(iii) Had no reasonable grounds to believe that any other participant
was armed with such a weapon, instrument,
article or substance; and
(iv) Had no reasonable grounds to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury.
Counsel for the person sought states that deferment of extradition
for Arson in the First Degree with risk of life is impossible,
because it would result in double punishment for the same act, a bis
in idem. [The Defense] states that extradition
[should] be granted only for Arson in the Second Degree. And
states (fls. 287):
It is understood, then, that we are dealing with a bis in idem. How
can someone be accused, simultaneously, of causing damage to a
person's health, and also of bringing him / her into danger?
Obviously, damage always involves risk, which is a necessary step to
accomplish the other. Mutatis mutandis, it would be the same as to
attempt to convict someone of murder and of bodily injury, because
before killing someone, damage was done to the physical integrity of
the victim.
In fact, there is an apparent conflict of norms in this case, which
can be solved by the "principle of absorption."
Further, the Defense adds (fls.288):
If deaths occurred and if the charge deals, equally, with the crimes
of Murder, it seems clear that this more serious event absorbs the
crime of endangerment. Otherwise, one act would
be generating double punishment, which is inadmissible, according to
Brazilian law.
Furthermore, counsel for the person sought understands that the
Federal Supreme Court **1339
(Cite
as: 132 Wash.2d 852, *939, 940 P.2d 1293, **1339)
|
Jurisprudence has ruled that bis in idem cases are barred in
extraditions, quoting what happened in Extradition No. 543, assigned
to the Honorable Justice Moreira Alves, where it was decided that the
crime of illegal coercion would be absorbed by the crime of Robbery.
Therefore, the request for extradition was granted for the crime of
Robbery only.
Moreover, concerning Intentional Homicide, it is important to mention
that "the absolute inexistence of elements as to the intent to kill
renders the request faulty in that respect unless, according to
American Law, the intent has no bearing ( ... ). In this event,
however, it would be a case of objective responsibility, which would
render the agent's action atypical, according to Brazilian Law and
therefore, it would impede the granting of extradition" (fls.293).
Along the same lines, the Defense finishes, by citing (fls.295):
Therefore, the motion is for granting partial extradition for the
crime of Arson in the Second Degree and denial [of
extradition] for the charges of Murder.
*940
(Cite
as: 132 Wash.2d 852, *940, 940 P.2d 1293, **1339)
|
Finally, the Defense states, that the requesting State must stipulate
that the Defendant must not receive a sentence
of more than thirty (30) years, according to the Criminal Law Code,
Article 75.
As to granting extradition, "only for the crime of Arson in the
Second Degree", the opinion of the Brazil's Attorney General reads
(fls.370): "Now, Arson in the Second Degree is not an issue
[here].
According to document (fls.302), not translated, attached by the
Defense Attorney, one can infer that Arson in the Second Degree is
that which results only in material damages".
Further, regarding Non-Intentional Homicide, the Federal Attorney
General's opinion reads (fls. 370 / 371):
The Attorney's proposition that the extradition must be granted only
for Non- Intentional Homicide and not for Intentional Homicide is
also irrelevant. The Federal Supreme Court is not judging the
extradites at this time.
Therefore, I don't think it is possible, in this particular case, to
lower the charges against Negligent Fire-Setting, according to the
Brazilian criminal (law) the person sought at the extradition
hearing, [charges] brought by the Justice System in King
County, Seattle, State of Washington, from Intentional Homicide to
Non-Intentional Homicide and from Intentional Fire-Setting to
Negligent Fire-Setting, according to the Brazilian criminal
[law] system, as the Defense intends.
Charged as Arson in the First Degree and
Murder in the First Degree (four counts), based on legislation
[now] in force in the requesting State, the requested State,
which has the corresponding crimes of Intentional Fire-setting and
Intentional Homicide has no right to condition the granting of
extradition, so that the trial process of the person sought in the
Requesting State, occur in conformity with the specific legal
parameters of the Requested State's legislation, i.e., according to
Article 258 of the Brazilian Criminal Law Code, as cited:
Article 258. If serious bodily harm results from an intentional crime
of common danger, the prison sentence is increased by half; if it
results in death, it is doubled.
In the case of negligence, if bodily harm results from the act, the
penalty would be increased by half, if it results in death, the
sentence imposed for Non-Intentional Homicide is increased by one
third.
Concerning the above, Celso Delmanto remarks in the Criminal Law Code
Annotated, pgs. 449-450: "It is a case of praeter dolus, because the
results are not desired by the agent, in which case there may be
formal conflict of Article 121 or 129 with the crime of common
danger. ( ... ) In the case of injury or death of several persons,
the enhancement is applied only once, and it is not applied in formal
conflict. Therefore, if the crime of Intentional
Fire-Setting results in four deaths, due to the
agent's negligence, it will be classified as only one."
I understand, however, that the debate of what we call, among
ourselves, the "classified forms of common danger crimes", cannot
take place during the *941
(Cite
as: 132 Wash.2d 852, *941, 940 P.2d 1293, **1339)
|
extradition process, if it results in dual criminality, where the
facts are typical not only in the laws of the requesting State but
also in the laws of the requested State.
**1340
(Cite
as: 132 Wash.2d 852, *941, 940 P.2d 1293, **1340)
|
The
analysis of the quaestio juris is also recommended in this case,
concerning the impracticality of granting extradition, as to crimes
of Murder in the First Degree, because it deals with the hypothesis
of objective responsibility, prohibited within the Brazilian criminal
law system, according to Article 19 of the criminal law code,
citing:
Article 19. The agent only answers for the result that specifically
aggravates the penalty if [he] is, at least, negligent in
causing it.
Celso Delmanto comments on this device introduced by Law No. 7209 /
1984 (Op.Cit., pg.34):
With Article 19, the criminal [law] revision of '84 wanted to
impede the punishment of someone for mere objective criminal
responsibility. It determined that the agent is responsible for the
result that "specifically" aggravates the penalty, only when he
caused it, "at the very least by negligence".
It is explained by the [following] example: In the crime of
Robbery, Article 157 Par. 3 determines that, if serious injury or
death results from the violence, the penalty is especially
aggravated. In implementing Article 19, the aggravating
[clause] will only apply to the agent if he has caused that
result (serious injury or death), at least by negligence. Therefore,
if the result of the aggravating act was not due to the agent's
intent or negligence he will be responsible for the Robbery, but not
for the aggravating result in Article 157 Par. 3, because of the
restriction in Article 19. However, it is important to note that the
objective of the device in Article 19 is to limit the penalty. It
should not be used to unduly exacerbate it. Therefore, intent cannot
be dispensed with (substituting it for negligence) in the other
qualifying and aggravating clauses, which must be present due to the
agent's intent (direct or circumstantial).
The Explanation of Motives which accompanies the new Revised Criminal
Law Code remarks that "the rule covers all enhancement clauses found
in the causal separation of the action" (No. 16). Celso Delmanto
observes, in turn: "It is important to notice that it only affects
crimes qualified (or aggravated) by the result, i.e., the ones with a
result that especially aggravate the penalty. It is not applied to
qualifying or aggravating clauses that are covered by the agent's
intent (and not only by negligence)' " (op.Cit., pg.36).
It is important to observe that, in this
particular case, the charge of Murder in the First Degree in the
Court of origin, against the person sought for extradition, is found
in Section
9A.32.030 (1)(c),
which states as guilty of Murder in the First Degree the person who
commits or attempts to commit the crime of either: (1) to
(3)--omitted; (4) Arson in the First Degree, ( ... ) and in the
course of or in furtherance of such crime or in immediate flight
therefrom, he or she, or another participant, causes the death of a
person other than one of the participants: except that in any
prosecution under this subdivision (1)(c) in
*942
(Cite
as: 132 Wash.2d 852, *942, 940 P.2d 1293, **1340)
|
which the defendant was not the only participant in the underlying
crime, if established by the defendant by a preponderance of the
evidence, it is a defense that the defendant:
(i) Did not commit the homicidal act or in anyway solicit, request,
command, importune, cause or aid the commission thereof; and
(ii) Was not armed with a deadly weapon, or any instrument, article;
or substance readily capable of causing death or serious physical
injury; and
(iii) Had no reasonable grounds to believe that any other participant
was armed with such a weapon, instrument, article or substance;
and
(iv) Had no reasonable grounds to believe that any other participant
intended to engage in conduct likely to result in death or serious
physical injury.
Therefore, it is understood that the law of the Requesting State
considers as autonomous the crime of Murder in
the First Degree, the death of a person during the practice of the
crimes of Robbery, Rape, Burglary with Felonious Intent, in the First
Degree, Arson in the First Degree or Kidnapping, and in furtherance
of said crime and in immediate flight therefrom.
**1341
(Cite
as: 132 Wash.2d 852, *942, 940 P.2d 1293, **1341)
|
In
our system, praeter dolus crimes are compounded, as Celso Delmanto
writes in the above mentioned work, pg. 36 "because the agent is
punished due to criminal intent, for he acted with that end in mind.
And he is sanctioned for negligence, for having caused a result other
than what he wanted. Example: Article 129, Par. 3, in which the agent
is punished for criminal intentional conduct (injury) and for the
non-intentional result (death)".
Regarding the crime of Arson, according to Article 250, "caput", of
the Criminal Law Code, among the causes that increase penalties by
one third, listed in the above mentioned Article (1) there is no
express mention of resulting serious injury or death. There is,
however, [mention] that the subject is defined in the CC
[Criminal Code] Article 258 in the same Chapter "Of Common
Danger Crimes" (Article 250 to 259), with this general rule
concerning "qualified forms of crimes of common danger":
Article 258. If serious bodily injury results from an intentional
crime of common danger the prison sentence is increased by half, if
it results in death, it is doubled. In the case of negligence, if it
results in bodily injury, the penalty is
increased by half; if it results in death, the penalty imposed is the
one used for Non-Intentional Homicide, increased by one third.
Celso Delmanto observes that it is a case of praeter dolus, "because
the results are not desired by the agent, in which case there could
be formal conflict with Article 121 or 129 with the crime of common
danger. According to CC, Article 19, it is essential that the
resulting injury or death was caused by the agent, at least by
negligence. If the result was not due to negligence, but only because
of a causality relation, only the simple sentence for crimes [of
common] danger will apply and not the qualifying
enhancement."
One can see then, that in our system, the resulting death in the case
of a crime *943
(Cite
as: 132 Wash.2d 852, *943, 940 P.2d 1293, **1341)
|
of
common danger, among them, Arson, acts as an enhancement, aggravating
the penalty; but in the Requesting State's system, it is [an]
autonomous [crime].
However, I do not see this difference in the legal system, as an
obstacle in granting extradition.
Still we need to evaluate whether the principle of subsidiarity,
admitted in our jurisprudence should be applied here in such a way
that the crime of Arson be absorbed by the [crime] of Murder
in the First Degree, for which, in this case, it is supposed to be
the Arson which occurred in the commercial building [that
belonged] to the parents of the person sought for
extradition, charging him with the
responsibility for the criminal wrong.
In Extradition No. 543--Federal Republic of Germany, assigned to the
Honorable Justice Moreira Alves, this court decided, applying the
principle of subsidiarity which His Honor analyzed in the following
manner in his learned opinion (RTJ 138-428):
5. The Defense is equally correct, when it states that the
extradition request cannot further be granted for the crime of
illegal imprisonment contained in the German Criminal Code Par.
239(1).
In fact, concerning crimes of Robbery and Illegal Coercion (which
would be how the charged deed could be framed by the prison sentence,
as a crime of deprivation of freedom), there is an apparent conflict
of rules solved by the implied principle of subsidiarity, because it
deals with compounded Robbery, one of its elements being Illegal
Coercion, as Heleno Claudio Fragoso writes (Licoes de Direito Penal)
[Criminal Law Lessons], General Part, No. 361, pg s.
352--353, Forense, Rio de Janeiro (1983):
Subsidiarity is implied when the crime defined by one of the rules is
an element or a legal circumstance of another crime. There is
subsidiarity in the case of a complex crime (CC, Article 103). It is
said to be complex a crime which has as element or aggravating
circumstance, a fact which on its own constitutes a crime. So,
Robbery (CC, Article 157) includes Theft (Article
155) and Illegal Coercion (CC, Article 146) or
Threat (CC, Article 147) ... these rules leave no room for formal
conflict, because there is an implied subsidiarity.
It happens that, in this case, the crime of Arson in the First Degree
is an element of **1342
(Cite
as: 132 Wash.2d 852, *943, 940 P.2d 1293, **1342)
|
the
crime of Murder in the First Degree, according to Section
9A.32.030 (1)(c) of the Revised Code of
Washington
[RCW]. Also, it must be considered that the Original
Information did not mention a charge for Arson in the First Degree,
but only four counts of Murder in the First Degree, according to the
attached transcript. Only in the Amended Information, fls. 178--179,
there appears "Count V" in which the accused Martin S. Pang is
accused of the crime of Arson in the First Degree. The Amended
Information considered such "crime of the same or similar character
and based on a series of acts connected together with another crime
charged herein, which *944
(Cite
as: 132 Wash.2d 852, *944, 940 P.2d 1293, **1342)
|
crimes were part of a common scheme or plan, and which crimes were so
closely connected in respect to time, place and occasion that it
would be difficult to separate proof of one charge from proof of the
other, committed as follows:
(omitted)."
It is my opinion, however, that in this particular case, we cannot
invoke the subsidiarity principle.
In fact, if the extradition is granted without
including the crime of Arson in the First Degree, due to the
subsidiarity rule, the eventual characterization of Murder in the
First Degree in the Requesting State, will not be possible, because
there wouldn't be a way to have the extraditee as the perpetrator of
the crime of Arson in the First Degree, an element of the crime of
Murder in the First Degree. If the criminal responsibility of the
person sought is not definitely ascertained by Arson in the First
Degree, the charge of Murder in the First Degree is vacated.
It is then, like the case now being examined: The subsidiarity rule
cannot be invoked, in order to exclude a certain crime from the
extradition deferment, when its examination is the basis for trying
another crime, which is the object of the charge.
If the charge of Arson in the First Degree is upheld or not, or if it
will be reduced to Arson in the Second Degree--which is what the
Defense wants--cannot be taken into consideration in this extradition
hearing. The competent Court in the Requesting State must rule on
this issue. What I understand here is that it is not possible to
frustrate the trial of extraditee in the Requesting State for the
basic crime of Arson in the First Degree, invoking, in this case, the
principle of subsidiarity, in order to remove the base crime from the
extradition grant, i.e., Arson in the First Degree. If it [the
crime of Arson in the First Degree] cannot
be investigated, because the extradition would not include it, its
consequence would be the eventual infeasibility of also imputing
responsibility to the extraditee for the crimes of Murder in the
First Degree, according to Section
9A.32.030,
which assumes guilty of Murder in the First Degree, one who commits
or attempts to commit, among others Arson in the First Degree.
Well, in this particular case, if Extradition will not be granted to
allow the extraditee to stand trial also for Arson in the First
Degree, according to the Amended Information, it is certain that the
trial for Murder in the First Degree will not be possible, which, in
this particular case, is intimately connected with the crime of Arson
in the First Degree.
Therefore, I feel that in this situation, the crimes which are the
object of the Information and the Amended Information in the
Requesting State, cannot be separated, in order to grant the
extradition as to some and deny it as to the other, [which]
is the basis of the former.
Finally, concerning the sentences to be imposed for crimes with
counterparts in the laws of both States, the only matter of
consequence, is to keep in mind the *945
(Cite
as: 132 Wash.2d 852, *945, 940 P.2d 1293, **1342)
|
limitations rendered sacred in our jurisprudence, where the
extradition is not conditioned to the non-imposition of a life
sentence. I have stressed this in a hearing of December 2, 1993,
Extradition No. 599 - 5/120, where I was the
Assigned Justice:
6. Nor is there room for any restriction as to the fact that the law
of the Requesting State allows for a life sentence as a maximum
punishment for the crime charged against the extraditee (Extradition
No. 426, RTJ [expansion unknown] 115(3)): 969, Mar. 86
("leading case"); Extradition No. 429 assigned to Just. Djaci Falcao,
RTJ 119(1): Jan. 22, 87; Extradition No. 472, 1, 72, assigned to
Just. Moreira **1343
(Cite
as: 132 Wash.2d 852, *945, 940 P.2d 1293, **1343
)
|
Alves, DJU [expansion unknown] . 05.89; Extradition 486,
assigned to Just. Galvao Gallotti, RTJ [expansion unknown]
132(3): 1.083, Jun. 90; Extradition No. 507, assigned to Just. Ilmar
Galvao, DJU [expansion unknown] (03.09.93).
For better clarity, the annotation for Extradition Hearing 507, also
requested by Argentina and assigned to the Honorable Justice Ilmar
Galvao (hearing held in full session on September 25, 1991) is hereby
transcribed:
EXTRADITION. A [FOREIGN] NATIONAL FROM THE REQUESTING STATE,
WITH DECREED ARREST WARRANT, ACCUSED OF QUALIFIED ATTEMPTED ROBBERY,
WHICH RESULTED IN THE DEATH OF THE VICTIM. LEGAL POSSIBILITY OF A
LIFE SENTENCE. COMPLETE ADHERENCE TO REQUIREMENTS, ACCORDING TO THE
LAW AND THE TREATY.
Petition granted, without restrictions as to the life sentence, which
was considered improper, according to STF [expansion unknown]
jurisprudence, according to Extradition No. 426 (09.04.85) and
according to our legal charter,
(Cite
as: 132 Wash.2d 852, *945, 940 P.2d 1293, **1343)
|
reaffirmed
for almost a century, which is clear as a bell about the necessity
for the commutation of only corporal punishment and death sentences
(Law No. 2.416 /1911, DL No. 394 38 and Law No. 6.815 /801). (DJU
09.03.93)
Moreover, fls. 391 makes it clear that the gradual increase or
decrease of the penalty is possible under the following
conditions:
6. In the case of Murder in the First Degree, the scope of the
standard sentencing range, established by the State of Washington
Sentencing Guidelines is from 240 to 320 months. In fact, the judge
can depart from this standard only if he decides that there are
special aggravating circumstances. To order a sentence beyond the
standard range the judge must conclude that there are compelling and
substantial reasons to do so. Any sentence beyond this range cannot
be excessive and must be established by strong evidence. All
sentences for Murder in the First Degree will run consecutively.
Therefore, once the difficulties presented by the Defense are removed
and taking into consideration that the arrest warrant against the
person sought for extradition was issued by a competent Judge, and
the request [for the extradition] was well documented, and
the charges against the person sought for extradition have
corresponding laws in the Brazilian Criminal Law Code, and it is true
that the alleged criminal acts occurred in the requesting State's
territorial jurisdiction, *946
(Cite
as: 132 Wash.2d 852, *946 , 940 P.2d 1293,
**1343)
|
and
if it is inappropriate to speak of
(Cite
as: 132 Wash.2d 852, *946, 940 P.2d 1293, **1343)
|
penalties,
it must be concluded that the extradition can be granted, without
restrictions.
Based on the above, I grant the request for extradition, without
restrictions, therefore affirming the opinion of the Office of
Brazil's Attorney-General.
[signed] J. Neri
ALM
PLENARY
EXCERPT FROM THE MINUTES
EXTRADITION NO. 654-1
ORIGIN: THE UNITED STATES OF AMERICA
ASSIGNED TO: JUST. NERI DA SILVEIRA
REQUESTED BY: THE GOVERNMENT OF THE UNITED STATES OF AMERICA
EXTRADITEE: MARTIN SHAW PANG
ATTORNEYS: PAULO FREITAS RIBEIRO, ET AL
Decision: Just. Mauricio Correa requested the documents, after the
vote by Justice Neri da Silveira (Assigned), granting, in its
entirety the request for the extradition, without any restrictions
whatsoever. Dr. Cassiano Pereira Viana represented the Requesting
State and Dr. Arthur Levigne represented the person sought for
extradition. Plenary Session 11.30.95.
[approximately 14 blank lines]
Presided by the Honorable Justice Celso de Mello, Vice-President.
Present at the session were: The Honorable Justices Moreira Alves,
Neri da Silveira, Sydney Sanches, Octavio Gallotti, Carlos Velloso,
Marco Aurelio, Francisco Rezek and Mauricio Correa.
**1344
(Cite
as: 132 Wash.2d 852, *946, 940 P.2d 1293, **1344)
|
*947
(Cite
as: 132 Wash.2d 852, *947, 940 P.2d 1293, **1344)
|
Excused absences: Honorable Justices Sepulveda Pertence, President,
and Ilmar Galvao.
Brazil's Attorney-General Dr. Geraldo Brindeiro.
[signature illegible]
Luiz Tominatsu
Secretary
12 /18 / 95
FULL SESSION
EXTRADITION No. 654-1
UNITED
STATES OF AMERICA
VOTE
REVISION
THE
HONORABLE JUSTICE MAURICIO CORREA:--After the Honorable Justice Neri
da Silveira's vote, stated on the record, during Extradition Hearing
No. 654, I requested a revision, even though I agreed with his vote.
I thought it would
(Cite
as: 132 Wash.2d 852, *947, 940 P.2d 1293, **1344)
|
be
prudent to ponder on the quaestio juris, regarding the restriction
issue, as to the life sentence allowed by the criminal laws of the
Requesting Member- State.
To refresh the memory of the [members] of the Plenary as to
the facts, I indulge in reading Diplomatic Note No. 83, contained in
fls. 5-6 of PPE 217, enclosed:
The facts of this case indicate that on January 5th, 1995, a little
after 19:03, the Seattle Fire Department responded to a fire at the
Mary Pang Food Warehouse, Inc. While fighting the fire several
firemen got to the first floor in the flooded warehouse. Without any
warning, whatsoever, the floor gave in, tumbling the firemen to the
basement. Four firemen died in the fire.
On December 13, 1994 an agent of the Bureau of Alcohol Tobacco and
Firearms (ATF) was contacted by a witness who said that the "Mary
Pang" warehouse was going to be "burned". The witness told the agent
that Pang was advised to remove his personal belongings from the
warehouse. On another occasion, Pang told the witness, in detail, how
the fire would occur and it really happened in that manner. Pang also
removed his personal belongings from the building on another
occasion.
In December, Pang took a close friend to the warehouse and told him
that the food company was not doing well. He said that the warehouse
would *948
(Cite
as: 132 Wash.2d 852, *948, 940 P.2d 1293, **1344)
|
burn down in January and that it would look
like transients set the fire. Pang told a number of other people that
the warehouse would burn down.
After the fire Pang told another witness that it looked like some
transient had set the warehouse on fire and described how it had
happened. Pang described how the fire happened even before the
information had been announced by the investigators. Inevitably,
Pang's statements to his friends came very close to a confession.
Arson investigators announced that the fire had been intentionally
set, causing the death of four fire-fighters.
Murder is described in Article II Paragraph I of the Treaty of
Extradition Between the United States of America and the United
States of Brazil. Seizure of Assets is described in Article XX of the
[same] treaty.
Due to the commission of these crimes, an arrest warrant was issued
for Murder in the First Degree and Arson in the First Degree (fls.
133, 134 and 163). The crimes answerable by the person sought for
extradition are punishable with a life sentence in Washington,
American territorial jurisdiction, where the crimes were committed
(fls.134-6).
After stressing the issue of restriction, which the evolution of this
Court's jurisprudence no longer allows, the Assigned Justice
concluded, as to the question of a life sentence:
Therefore, once the difficulties presented by the Defense are removed
and taking into consideration that the arrest
warrant against the person sought for extradition was issued by a
competent Judge, and that the request for the extradition was well
documented, and that the charges against the person sought for
extradition have corresponding laws in the Brazilian Criminal Law
Code, and being true that the alleged criminal acts occurred in the
requesting **1345
(Cite
as: 132 Wash.2d 852, *948, 940 P.2d 1293, **1345)
|
State's territorial jurisdiction, and since it is inappropriate to
speak of penalties, it must be concluded that the extradition can be
granted, without restrictions.
Based on the above, I grant the request for extradition, without
restriction, therefore affirming the opinion of the Office of
Brazil's Attorney-General.
I have tried to follow, as much as possible, the predominant
jurisprudence of this Court, especially concerning internal economy,
outside the realm of laws that deal with citizens' freedom, due to
the inconvenience and uneasiness that a change of direction can cause
in the lives of people, budgets, criteria and organizational charts
of state agencies, and activities of private enterprises.
In this case, the situation reveals that the person sought for
extradition, and not yet tried, only with an arrest warrant issued
against him, came to live in Brazil. It seems to me that due to the
above, I have an opportunity to state what I think about the thema
decidendum. Especially because, as far as I know, there is a
difference of opinion about this subject, in view of what
Justice Pertence himself stressed, in
extradition Hearing No. 598 (RTJ 152) (431-438), underlining that
"safeguarding my opinion in the [above] referred preceding
case overruled by Justice Paulo Brossard, until conditions exist for
the reexamination of *949
(Cite
as: 132 Wash.2d 852, *949, 940 P.2d 1293, **1345)
|
the
problem--and I refer to the demand of the commutation of life
sentences--according to our jurisprudence. I agree with the Honorable
Justice Assigned [to this case], not granting
extradition".
Justice Neri da Silveira also voted for the restriction in that
Hearing, alleging that in Extradition 507, "I also adopted the
position of establishing a restriction in granting the request, so
that the life sentence be commuted to a maximum sentence of thirty
years".
In Extradition Hearing No. 426 of May 22, 1985 requested by the
United States, where the assigned Justice Rafael Mayer was overruled,
Just. Rezek observed that the law dealing with extraditions at no
time restricts a life sentence from an extradition decree. It
[the law] refers specifically to death penalty cases. And
even if that were the case, says His Honor, because the treaty with
the United States dates from the 60's, the treaty and the
supervenient law would be placed in conflict. And [he] ends
[by saying], "I ask myself if we would not be led by logic to
one day deny extradition, if we ascertained that during the process
in which the person sought for extradition was convicted,
[later] there was evidence that there had been a breach of
the confidentiality rule (being that Par. 9 of
the same constitutional Article prohibits that); or because in the
requesting State there is no guarantee of a contradictory criminal
element; or because there [in that State] there is no
provision for [trial by] jury for intentional crimes against
life." The list in Article 153, with all due respect, does not seem
to be feasible to me as a set of parameters to be imposed on the
requesting State in the extradition process.
Once the Assigned Justice was overruled in that extradition, all the
other Justices voted along with Justice Rezek, and this resulted in
the new direction adopted by the Court, which no longer restricts a
life sentence. I would like to point out that there were some
opposing votes, because it dealt with the issue that the person
sought for extradition had already been sentenced to life in prison
in the requesting Country. This happened, for instance, in the case
of Justice Passarinho, who added: "However, the situation before us
is extremely unique. The person to be extradited received a life
sentence, escapes to Brazil and attempts to get his sentence changed.
Based on that, I do not believe that he can find himself under our
protection in that case."
I cannot, Mr. President, lend to a treaty or to an ordinary law the
greatness and import of the constitutional rule. The Federal
Constitution of '88, as an example of the old text, reaffirmed as
dogma, in its Article 5, clause XLVII (b), that there will be no life
sentence in Brazil, and CC, Article 75 decreed
that a prison sentence cannot go beyond thirty
years. This Article limits the prison sentence time, conforming
exactly with the present constitutional dictamen, as it was the case
with the Constitutions of '37 (Article 122, 13), ' 46 (Article 41
Par. 31 and '69 Article **1346
(Cite
as: 132 Wash.2d 852, *949, 940 P.2d 1293, **1346
)
|
153
Par. 1) which prohibited life sentences. Now, if that is the case,
how can we give up a constitutional precept in face of a request for
the extradition of an individual who one way or another, subjects
himself to Brazilian Laws?
It is not a matter of doing a favor to an escaping criminal, but
preserving the integrity *950
(Cite
as: 132 Wash.2d 852, *950 , 940 P.2d 1293, **1346
)
|
of
Brazilian sovereignty, whose Greater Law established, in a solid
clause, the inexistence of life sentences within [our]
national territory to all Brazilians and to all who live in this
jurisdiction.
It is true that Law No. 6.815 of 08.19.80, in Article 91, clause III,
restricts the handing over of the person sought for extradition to
the Requesting Country, unless it is conditioned to a stipulation of
commutation of the physical punishment or death sentence. It does not
speak of a life sentence, and because of that omission I do not see
that implicitly it [life sentence] is being contemplated, due
to the origin of the same constitutional guarantees which do not
reinstate the penalties of life sentence or death.
I do not think that if the Constitution did not speak of forced labor
or death penalty, that our jurisprudence could be interpreted as
putting its seal of
(Cite
as: 132 Wash.2d 852, *950, 940 P.2d 1293, **1346)
|
approval
on extraditions so that sentences of that nature could be served.
Under the 'aegis' of the constitution, there is no distinction
between them. Because the death penalty (except in case of declared
war, according to Art. 84, XIX), forced labor, exile and cruel
[punishment], are irrelevant and inapplicable, just like life
sentences, the former as to chronological scale, the latter,
[because it is] mentioned in the list of exceptions. Because
the ordinary law did not mention life sentences, that does not mean
that it can be included in the extradition hearing, in order to be
implemented in the requesting Country. It is because the Federal
Constitution prohibits life sentences, in the list of penalties that
do not exist in Brazil.
I'm not worried about the treaty. It can say what it wants, but it
cannot override the constitutional ban, which does not allow life
sentences in this Country, and for that very reason the Alien who
lives here [is protected by it], and extradited he may be,
but it will have to be with the restriction of a life sentence in the
Country where he will serve his sentence.
I do not see where a comparison can be made concerning identity of
situations, [or] if we can argue about breach of
confidentiality, when it caused someone to be convicted, or on
another aspect, [if we can debate] the right of cross
examination in criminal procedures, or why there is no provision for
a trial by jury in a given State. [I cannot see how] such
cases equally compare with the issue of life
imprisonment. While those are concepts which, no doubt, can be
elevated to constitutional decisions, just the same they cannot be
defined individually, as life imprisonment, which touches, by its
very nature, on the status libertatis of persons. These other
principles are of constitutional nature, but they are not
intrinsically invested with the form and physical characteristics of
the penalty, thus comprised by genesis, and banned, repeatedly by the
last Federal Constitutions, as they have been expunged from our penal
tradition. I would say it is true that they are more rites of
process, solemn and of a higher legislative degree, [as they]
deal with human rights, but they do not directly and in a straight
forward manner refer to the type of penalty, as defined by Article 5
clause XLVII (b) of the Public Charter.
It is one thing to respect the working mechanism of constitutional
guarantees--the Jury, the precepts of confidentiality and cross
examination-- and another [to *951
(Cite
as: 132 Wash.2d 852, *951, 940 P.2d 1293, **1346)
|
respect] the penalty to be implemented. While those are
implemented in the fulfillment of prerogatives inherent to all
citizens, the penalty is the result of State interference to punish
the perpetrator. The State that guarantees the practice of law is
different from the State that repeals the death penalty. Brazilian
Law repeals life imprisonment, thus its elevation to the heights of
constitutional dogma.
A citizen who is being judged for extradition
purposes is under the protection of the constitutional guarantee
clause that does not allow life imprisonment, and to grant it under
those conditions, in my opinion, would be to
**1347
(Cite
as: 132 Wash.2d 852, *951, 940 P.2d 1293, **1347)
|
attack an absolute precept resulting from this constitutional
guarantee.
In Extradition Hearing No. 426 a "leading case" which established a
divisory line on the restriction, it must be emphasized that the
extradition mentioned dealt with an American Escapee who was serving
a life sentence, and in this procedure we verified that the person
sought for extradition was only under deferred provisional arrest,
but subject to a life sentence penalty.
As this subject has been discussed and reiterated a number of times,
so that everyone is familiar with it, I refrain from expounding on it
in greater detail.
With the above considerations [in mind] I vote with the Hon.
[Justice] Assigned [to the case], concerning the
portion related to granting the extradition request. I oppose him,
with all due respect, only with the proviso that the Requesting
State, in the event that the person sought for extradition is
condemned to life in prison, that his prison sentence be limited to a
maximum of thirty years.
[Signature illegible]
12 /18 / 95
FULL SESSION
EXTRADITION No. 654-1
UNITED
STATES OF AMERICA
VOTE
THE
HONORABLE JUSTICE FRANCISCO REZEK--In opening, with all due respect,
I would like to disagree with the Honorable Justice Mauricio Correa
where His Honor disagrees with the Assigned Justice as to the 30 year
restriction, in lieu of life imprisonment.
Try as I might, the philosophical distinction established by His
Honor in his learned vote, makes no sense to me. I cannot fully
comprehend what could be this intrinsic virtue of the constitutional
rule which prohibits life sentences in Brazil, to the point of
differentiating such rule from others that, in the very same
Constitution, talk about other characteristics of the criminal
process, of punishment and imprisonment of persons within the
jurisdictional territory of this Republic.
*952
(Cite
as: 132 Wash.2d 852, *952, 940 P.2d 1293, **1347)
|
The
Brazilian legislature provides a long list of guarantees in the name
of the Brazilian State. It promises the people certain guidelines of
criminal procedure and consequences for criminal acts, assuming that
in Brazil, due to our jurisdiction and action of our [law
enforcement] authorities, someone is being
judged. I do not know under what pretext the Brazilian Constitution
can make guarantees of a constitutional level to the person
undergoing a [legal] procedure in another sovereign
[State]. I also do not know on what technical, scientific or
moral grounds, a certain person, because he / she was in a given
moment of his / her life in Brazilian territory, would be covered by
the [same] guarantees that the Federal Constitution allows a
Defendant going through the criminal process in Brazil, even if
[this person] is sent to another sovereign State, due to a
decision of this Court, so that notwithstanding, the jurisdiction
[of that Country] be imposed and not ours.
Our legal system is clear when it says what needs to be asked of the
Requesting State as a compromise, when the Extradition Act is brought
to completion: That it [the Requesting State] abstain from
imposing the death penalty, physical punishment and degrading or
humiliating penalties; that it give credit for the time served in
Brazil, and certain other things. Absolutely not, the commutation of
a life sentence; absolutely not, overseas, under another flag, a
prison restriction that the Brazilian legislature established to be
valid only among us.
It seems to me that in this case, the Court should preserve its
jurisprudence, established the moment the opinion of the
Attorney-General, Professor Claudio Fontelles was refused, in the
sense that the 30 year limit should be imposed on
the foreign sovereignty as a condition of the
extradition, because it dealt with a rule somehow vested with
transcendence.
I would like to ponder [the fact] that, in this case, the
Defendant is being accused by the Justice [System] of the
State of Washington, in the United States of America, of Arson, which
occurred in the city of Seattle.
**1348
(Cite
as: 132 Wash.2d 852, *952, 940 P.2d 1293, **1348)
|
The
laws are clear that the penalties are severe. Arson in the First
Degree, as described in the report, may lead in itself, to a life
sentence. Murder in the First Degree, only one charge may lead, in
itself, to a life sentence. As valid as the accusation of the United
States of America may be, we would have a possibility of an
accumulation of five life sentences, being that the Information,
after univocal description of the facts says, however, that he is
guilty of Arson, but that he is also guilty of Murder in the First
Degree--four times.
He is being accused of having caused the fire of his own store, in
order to obtain certain security or insurance advantages. There is a
candid aspect in the report: The very Arsonist would have leaked out,
ahead of time, that the store would burn down at that time, in order
to avoid that [the lives] of innocent persons be exposed. But
it is clear that whoever causes Arson, assumes the risks of his deed.
And it happened that, in rendering assistance, four firemen who were
on the top floor of the building saw the wooden floor
collapse under them and died in the fall.
For a long time the Court is aware that I oppose the practice of
imposing restrictions on an extradition. I have been saying this
since the seventies. It seems to *953
(Cite
as: 132 Wash.2d 852, *953, 940 P.2d 1293, **1348)
|
me
that it was never the intention of the Brazilian legislature to
maintain a restrictive posture. What the law wants, as I was saying,
is that no one be extradited due to acts that are not criminal,
according to our [law] or if the acts are not punishable,
according to general rules. But when the main fact, when the brunt of
the accusation justifies the extradition, I believe we should not
scrutinize valid criminal process of the requesting Country as to
accidental events, parallel crimes, in order to detect, in the
perimeters of the charges, a lack of dual criminality rules or
irrelevancy, [therefore] opposing restrictions to the
measure.
I was overruled here. The Court decided, unanimously that these
restrictions can and should be applied, under the pretext of a
clearer, more detailed view of lack of dual criminality. The
accusation must be examined considering its entire context; and we
will do so, step by step, number by number, topic by topic, detecting
the occurrence of dual criminality without which extradition cannot
be granted, or it is only partially granted.
Overruled, I must obey the jurisprudence which for years has
prevailed by the majority rule. What grieves me in this particular
case, and renders the decision difficult is not
the issue of the thirty year restriction, but [the manner
which] the conduct of the person sought for extradition fits the
criminal law of the Requesting State and our own legal system. What
the charge does, in this case, after describing the human conduct to
be studied, is to say that it falls under Arson in the First Degree
and also in Murder in the First Degree, once, twice, three and four
times. Concerning the severity of the penalties expected by the
Prosecution in its charging efforts, this does not make a lot of
difference, being that each one of the five charges herein
accumulated would justify, in itself, a life sentence.
What I cannot see is dual criminality in the case of Murder in the
First Degree. State of Washington Law says:
Arson in the First Degree: A person is guilty of Arson in the First
Degree if he knowingly and maliciously causes a fire or explosion
which is manifestly dangerous to any human life, including
firemen.
This is exactly what happened. And for Arson in the First Degree,
depending on the circumstances, and obviously, on the consequences,
the prison [term] can be either moderate in its chronological
duration, or life, according to the law of the Requesting State.
Brazilian law, in Article 250 says with respect to Arson:
To cause a fire, risking life, physical integrity or property of
another: Penalty--confinement from three to
six years, and fine ( ... ).
Penalty enhancement
Par. 1--Penalties increase by one-third:
I--If the crime is committed with the intent of gaining monetary
advantage for personal or third party gain.
*954
(Cite
as: 132 Wash.2d 852, *954, 940 P.2d 1293, **1348)
|
**1349
(Cite
as: 132 Wash.2d 852, *954, 940 P.2d 1293, **1349)
|
We
have here exactly the hypothesis described on the report. Finally,
Brazilian law, in Article 258 says that, if death results from the
intentional crime of personal danger the penalty doubles.
According to Brazilian law the hypothetical case presented in the
documents would lead to something like sixteen years of confinement.
But I am not worried about the question of quantity. I agree with the
extradition, aware that the Arson, which resulted in death, can
accrue, according to American law, a life sentence.
But it is true that, on the other hand the law of the Requesting
State talks about Murder in the First Degree: 1. A person is guilty
of Murder in the First Degree when: (here we have many possibilities)
c. He or she commits or attempts to commit the crime of either: (item
IV) Arson in the First Degree, and in the course of or in furtherance
of such crime or in immediate flight therefrom, he or she, or another
participant, causes the death of a person.
This is the picture I cannot see mirrored, in any way, in the
narrative that the Prosecuting Attorney's
Office of Seattle itself has written.
What I see is an impeccable hypothesis of Arson in the First Degree,
according to American law, which fits, like a glove, Article 250 of
our Criminal Law Code, combined with Par. 1, clause I and with
Article 258, because the result was death.
Completely omitting the penalty issue, which varies greatly from
country to country and keeping in mind that I do not place this
restriction in relation to the length of the prison sentence, with
all due respect, I am unable to see in the narrative, a crime other
than Arson in the First Degree, which resulted in the death of four
people. In the scene described herein we cannot speak of a case of
Intentional Fire [arson] followed by death, added to four
separate Murders in the First Degree.
My vote grants the extradition, without any restriction whatsoever as
to the possibility of a life sentence, only for the crime of Arson
with its results, with all its consequences, according to American
law; however, without the added charge of four counts of Murder in
the First Degree.
[Signature illegible]
12 /18 / 95
FULL SESSION
EXTRADITION No. 654-1
UNITED
STATES OF AMERICA
VOTE
THE
HONORABLE JUSTICE MARCO AURELIO--Mr. President, as was well reported
by the Honorable Justice Neri da Silveira, the American
*955
(Cite
as: 132 Wash.2d 852, *955, 940 P.2d 1293, **1349)
|
Government is asking us for the extradition of the person sought,
following precise charges against him. He is being accused of having
set fire to a commercial facility, maybe, who knows, to escape civil
demise. Having acted in that manner, once the fire-fighters arrived
at the scene, according to American law, he would have caused the
death of four of them.
In opening, Mister President, I see, just like you, Your Honor, that
the Diplomatic Note contains a double heading, occurring from the
same facts. The first, alluding to Arson in the First Degree, which,
in itself once charged as a class "A" felony, in itself is enough to
accrue a sentence of life in prison. The second, concerns the four
other crimes of Murder in the First Degree. Therefore, there are five
charges against the Person Sought for Extradition.
Mr. President, the extradition, according to Law 6.815, of August 19,
1980, assumes the symmetry, and I take this legal precept to mean
what it says. Article 77 decrees:
Article 77 Extradition will not be granted when the fact motivating
the request is not considered a crime in Brazil
or in the Requesting State.
The question is: Can we fit Murder in the First Degree on the heading
of our Criminal Law Code, Article 121, Intentional Homicide?
In my opinion, as to symmetry, the vital dual criminality does not
exist.
The Honorable Justice Francisco Rezek underlined perfectly, with
great acumen, that the facts in the narrative lead to the charges,
**1350
(Cite
as: 132 Wash.2d 852, *955, 940 P.2d 1293, **1350)
|
according to the Criminal Law Code, Article 250:
... to cause a fire, exposing to risk of life, the physical integrity
or the property of another:
Penalty--confinement, from three to six years, ...
In considering the resulting "death", there is the qualifying
[clause] included in the first portion of Article 258, which
says:
... If serious bodily harm results from an intentional crime of
common danger, the prison sentence is increased by half--the penalty
of Article 250-- if it results in death, it is doubled. In the case
of non-intentional [crime] [illegible] and then by
lack of prudence, negligence and lack of skill--if bodily harm--as it
relates to fire--results from the act, the penalty would be increased
by half, if it results in death, the sentence imposed for Non-
Intentional Homicide is increased by one third.
Now, looking at the facts in the narrative, my opinion is that the
case, from the point of view of dual
criminality, taking into consideration Brazilian legislation, fits in
the first portion of Article 258 of our Criminal Law Code. Therefore
I agree, on this, with Justice Francisco Rezek.
There is the issue of life sentence. The established jurisprudence of
this Court, I *956
(Cite
as: 132 Wash.2d 852, *956, 940 P.2d 1293, **1350)
|
believe, unless I am mistaken, is to lay down conditions for granting
the Extradition, when there is the risk of the Person Sought being
sentenced to death. Therefore, we proceed with the utmost care in
clause XLVII of the list of basic guarantees, as included in the
Constitution, Article 5' s "caput", pertaining to foreign nationals
living in Brazil. The question is: Is it possible to distinguish; is
it possible to establish the application of the clause, obstructing
certain procedure, if it implies in "death", and not proceed in
exactly the same way, when there is risk of a life sentence? What
would be the basis for the divergence, if guarantees are placed in
the same clause of Article 5?
Article 5 is categorical, in clause XLVII:
XLVII--there will be no sentences:
a) of death, unless war has been declared, according to Article 84,
XIX;
b) of life [in prison];
c) of forced labor;
d) of exile; e) of cruelty;
I do not see how this Court's Jurisprudence can make a stand as to
the restriction, concerning paragraph "a" and not continue in the
same vein, since the basis is the same, as to paragraph "b",
concerning the impossibility of a life sentence, as it exists in
American law.
First, I am unable--and in this respect I am one of Justice Francisco
Rezek's disciples--to place the Treaty above the Political Document
of the Republic [Constitution]. I look at its content and I
place the treaties at the same level as our ordinary laws.
Second, concerning specific law, which some think it is demanded by
constitutional rule, we do have that. Our Criminal Law Code states
that no one will remain in prison for more than thirty years. Thus,
the requirement defined in our jurisprudence is being echoed by the
very Brazilian Criminal Law Code.
Therefore, in this case, I remove the possibility for the Person
sought for Extradition to answer for Murder in the First
Degree--having in mind the material conflict, the four counts, the
four Murders--and, further, I also exclude the possibility of
[this person] receiving a life sentence, therefore
establishing that he cannot remain under the State's custody for more
than thirty years.
I grant the Request [for Extradition]
on these terms, therefore, partially.
[Signature illegible]
FULL SESSION
EXTRADITION No. 654-1 USA
VOTE
JUSTICE
CARLOS VELLOSO: Mr. President, in examining the request for
*957
(Cite
as: 132 Wash.2d 852, *957, 940 P.2d 1293, **1350)
|
extradition, the Brazilian judge must verify if the mentioned
criminal acts, according to the laws of the Requesting State, are
also typical here, [dual criminality] i.e., if they
**1351
(Cite
as: 132 Wash.2d 852, *957, 940 P.2d 1293, **1351)
|
equally conform, in object, to Brazilian Criminal Law. This is the
task we must perform, as to the Request for Extradition.
In this [particular] case, according to what I was able to
discern from the debates, the description is as follows: The person
sought caused a fire, which resulted in four deaths. Is that an
objective act the same as in Brazilian Criminal law? I have no doubt,
in this case, that the objective conduct described in Article 250 of
the Penal Code took place in the qualified form described in Article
258 of the same Code. It seems to me that there is no way to escape
that. In other words, you cannot have, according to Brazilian law, a
crime of Arson and a crime of Murder independently. I cannot fail to
exert this control, in view of the request for extradition.
Therefore, I would like to apologize to the
Assigned Justice, whose votes I have the habit of following to grant
the extradition, exactly as it was done by Justice Francisco Rezek,
concerning the crime of qualified Arson (Criminal Law Code, Article
250 with qualifying clauses from Article 258--Arson followed by
death).
Following I review the second issue in debate: The question of
restricting a life sentence. In Extraditions Nos. 426 and 486, the
Federal Supreme Court implicitly dispensed with the restriction. In
Extradition No. 507--Argentina, my vote was following that
[same] jurisprudence. I do not know if we should alter a
jurisprudence already stratified and ratified in this Court.
Therefore, with all due respect to the Honorable Justices who believe
otherwise, especially Justice Mauricio Correa, who opened this
debate, I vote in this case, with the Assigned Justice, except for
the restriction.
I grant the extradition request.
[Signature illegible]
12 / 18 / 95
FULL SESSION
EXTRADITION No. 654-1
UNITED
STATES OF AMERICA
VOTE
CORRECTION
THE HONORABLE JUSTICE MAURICIO CORREA--Mr. President, I examined the
documentation, particularly from the point of view of a life sentence
and I thought it would be prudent to explain my position after my
first vote.
I confess that during the debates I was somewhat convinced that I
should grant the extradition in its merit, except for the
restriction, according to Justice Neri *958
(Cite
as: 132 Wash.2d 852, *958, 940 P.2d 1293, **1351)
|
da
Silveira's vote. However, I see that this deals with an autonomous
crime, and the Foreign National Law demands [the existence]
of dual criminality in Brazil. Indeed, the request concerning this
point does not specifically conform with Article 250, specially when
combined with CC, Article 258.
Because of this, with all due respect to the Honorable Justice Neri
da Silveira I will follow the vote of Justice Francisco Rezek, only
as it pertains to that, granting partial extradition.
[Signature illegible]
12 / 18 / 95
FULL SESSION
EXTRADITION No. 654-1
UNITED
STATES OF AMERICA
VOTE
THE
HONORABLE JUSTICE CELSO DE MELLO--The crimes that motivated this
extradition request--Murder and Arson in the
First Degree--are wrongful acts subject to a penal sanction
constitutionally barred in our legal system (life sentence). Thus,
the criminal acts in question within the legal system currently in
use in the State of Washington, justify the legal possibility of
imposing the penalty qualified by a life sentence on the
extraditee.
The issue now being raised by Justice Mauricio Correa assumes
indisputable legal relevance, because it consists in defining the
theme pertinent to the relationship between two regulation standards,
within the emerging context of the present cause,--one, intimately
**1352
(Cite
as: 132 Wash.2d 852, *958, 940 P.2d 1293, **1352
)
|
joined in international treaties, and another based on constitutional
statute--standard regulations that are clearly revealed as unmatched
in degree of validity, efficacy and authority.
It is necessary to accentuate, in this respect, that the standard
derived from international treaties, within the Brazilian legal
system, allows the placement of these acts of public international
law, in the hierarchy of sources, in the same plane and degree of
efficacy given to internal laws of an infra- constitutional
character. (JOSE ALFREDO BORGES, in Revista de Direito Tributario
[Taxation Law Magazine], vol. 27-28, pg. 170-173; FRANCISCO
CAMPOS, in RDA [expansion unknown] 47 / 452; ANTONIO ROBERTO
SAMPAIO DORIA, "Da Lei Tributaria no Tempo" [Of Taxation Law in
Time], pg. 41, 1968; GERALDO ATALIBA, "Apontamento de Ciencia das
Financas, Direito Financeiro e
(Cite
as: 132 Wash.2d 852, *958, 940 P.2d 1293, **1352)
|
Tributario"
[Finance Science Finance and Taxation Law Code, Annotated],
pg. 110, 1969, RT [expansion unknown]; IRINEU STRENGER,
"Curso de Direito Internacional Privado" [Private International
Law Course], pg. 108-112, 1978, Forense; JOSE FRANCISCO REZEK,
"Direito dos Tratados" [Treaty Laws], pg. 470- 475, items
393-395, 1984, Forense, v.g.).
Indeed, there is no hierarchic-standard precedence or priority of
these *959
(Cite
as: 132 Wash.2d 852, *959, 940 P.2d 1293, **1352)
|
international acts, compared to internal positive law, specially
according to clauses contained in the Constitution of the Republic,
since the external standard practice is not superimposed on what is
found in our Basic Law level.
I know, Mr. President that in 1985 this Court changed its orientation
as far as the jurisprudence is concerned, which conditioned the
handing over of the person sought for extradition to the existence of
a formal agreement-- previously done by the requesting
State--concerning the commutation of the life sentence penalty in
temporary sanction of prison sentences (RTJ 108 / 18--RTJ 111 /
16).
In fact, Extradition Hearing No. 426-3, requested by the Government
of the United States of America, led the Federal Supreme Court, per
majority vote to declare "... irrelevant the allegation for the
restriction of life sentence commutation in prison sentences, due to
lack of provision in the Law or in the treaty"
(RTJ 115 / 969).
Despite the current prevailing orientation in this Court, I do not
see--consistent with the votes in previous extradition hearings (Ext.
486--The Monarchy of Belgium, for instance)--how to give precedence
to penalty rules only present in formal agreements (international
treaties) or simply of a legal nature as far as rules contained in
the Constitution, which prohibit, absolutely, the imposition of any
penalty of a lifelong character (CC, Article 5, clause XLVII, b).
This constitutional prohibition, absolute and impossible to bypass,
contains, in reality, the very basis of the legal norm consolidated
by Article 75 of the Brazilian Criminal Code, which limits the
maximum prison sentence to 30 (thirty) years (DAMASIO E. DE JESUS,
"Codigo Penal Anotado" [Criminal Law Code Annotated] pg. 212,
5th Edition, 1995, Saraiva; CELSO DELMANTO "Codigo Penal Comentado"
[Comments on the Criminal Law Code], pg. 121, 3rd ed., 1991,
Renovar; JULIO FABRINI MIRABETE, "Manual de Direito Penal"
[Criminal Law Manual], vol. I/320, item 7.6.7, 9th ed., 1995,
Atlas; ALVARO MAYRINK DA COSTA, "Direito Penal--Parte Geral"
[Criminal Law--General Part], vol. I, tome II / 579, 4th ed.,
1992, Forense; JORGE ALBERTO ROMEIRO, "Curso de Direito Penal
Militar" [Military Criminal Law Course], p. 196, item No.
114, 1994, Saraiva; LUIZ VICENTE CERNICHIARO / PAULO JOSE DA COSTA
JUNIOR, "Direito Penal na Constituicao"
[Criminal Law in the Constitution], p. 112-114, 1990,
RT).
From the teachings of CELSO RIBEIRO BASTOS (Comentario a Constituicao
do Brasil" [Comments on the Brazilian Constitution], vol. 2 /
242, 1989, Saraiva) for whom the Brazilian criminal legislature "...
grasped very well the sense of the Greater Law precept", because in
fixing the limit of time mentioned (CC, Article 75), it defined the
maximum penalty legally possible in our country.
**1353
(Cite
as: 132 Wash.2d 852, *959, 940 P.2d 1293, **1353)
|
Having in mind the above reasons, and being loyal to the position
assumed by the Brazilian Government position which was rendered
sacred in its very own constitution--with all due respect I grant the
request now under examination, with the restriction, which I consider
necessary, of commuting the life sentence to a prison sentence not to
exceed 30 (thirty) years, agreeing completely with the learned vote
of the Honorable Mauricio Correa.
*960
(Cite
as: 132 Wash.2d 852, *960, 940 P.2d 1293, **1353)
|
It
is my vote.
[Signature illegible]
/csf
12 /18 / 95
FULL SESSION
EXTRADITION No. 654-1 USA
[Signature illegible]
VOTE
HONORABLE JUSTICE SYDNEY SANCHES:--Mr. President, concerning the
question related to life in prison, my viewpoint has already been
affirmed in preceding actions, already mentioned. The Constitution
does not regulate extradition. And, when it restricts sentences of
death and life in prison, it is obviously regulating what should
happen within the Brazilian territory. Yet, it does not impede, nor
can it impede that other nations have their own opposing rules.
On the other hand, Brazilian law, which regulates extradition, is
explicit in considering it inadmissible, when the requesting State
prescribes the death penalty to a crime. Now, as to a life sentence
it does not have any prohibition, whatsoever. Thus, I apply the
Brazilian law which regulates extradition and which is not
incompatible with our Constitution.
As to the remainder, I believe the crime in question is a qualified
form of a common danger crime, Fire-Setting, resulting in death.
Therefore, the fact described is a crime in Brazil, and it is enough
for me.
Concerning classification, if it is a matter that enhances the
penalty or if it is a separate crime, I believe that the issue must
be resolved, according to the law of the Requesting State.
It does not seem possible, for instance, that this Tribunal can deny
an extradition, just because in Brazilian law there is a provision of
trial by jury, according to the Federal Constitution, while in the
requesting State the trial can be a bench trial
or by jury, of a different nature and composition. Nor demand that,
in this or that situation, the Requesting State has to concede
"sursis", shelter detention or house arrest, just because in our Law
such measures exist, inspired by constitutional law.
I am not prepared to extend our competence that far, unless the
Court's jurisprudence changes.
*961
(Cite
as: 132 Wash.2d 852, *961, 940 P.2d 1293, **1353)
|
Therefore, I grant the extradition in its entirety.
[Signature illegible]
12 / 18 / 95
FULL SESSION
EXTRADITION NO. 654-1
UNITED
STATES OF AMERICA
VOTE
THE
HONORABLE JUSTICE MOREIRA ALVES:--Mr. President, in this case,
keeping in mind the peculiarities described by the assigned Justice,
it does not seem to me that they can be applied to the precedents
invoked as to the issue of dual criminality raised in the requesting
State.
Therefore, I follow The Honorable Assigned Justice, including as to
the issue of a life sentence, observing in this manner our current
jurisprudence.
I grant the extradition in its entirety.
[Signature illegible]
12 / 18 / 95
**1354
(Cite
as: 132 Wash.2d 852, *961, 940 P.2d 1293, **1354)
|
FULL SESSION
EXTRADITION No. 654-1
UNITED
STATES OF AMERICA
VOTE
THE
HONORABLE JUSTICE SEPULVEDA PERTENCE (PRESIDENT): My vote, with the
utmost respect to the Assigned Justice and all the others who voted
with him, follows the Honorable Justice Mauricio Correa's vote, His
Honor's corrected vote, that is.
Concerning the object of the extradition, I do not doubt this Court's
power to restrict it in this case. The dual criminality decision, the
most basic one, [and] one of the first tasks of this
hearing's passive judgment, is applied to the fact described in the
charge to which it answers, or to the sentence imposed on the person
sought. Not on the coincidence of legal systems, taken in abstracts
(v.g. Extr. 605, Celso de Mello).
What do we know about the case? Clearly, in the note requesting
extradition, it says that, having committed the crime of Arson,
during this fire, the collapsing of one of the slabs caused the death
of four firemen. The case, to me, is typical of Arson, with the
special enhancement clause--the resulting
(Cite
as: 132 Wash.2d 852, *961, 940 P.2d 1293, **1354)
|
death,
mentioned in *962
(Cite
as: 132 Wash.2d 852, *962, 940 P.2d 1293, **1354)
|
the
Penal Code, Article 258. And, furthermore, it seemed to me during the
discussion, that not even in American Law there would be the
concurrence of Arson with Murder in the First Degree. It is much more
than clear, that in American Law, Murder in the First Degree, in the
event of Intentional Fire-Setting, presupposes that the agent kill
someone to commit the Arson, or in escaping, after setting the fire.
A typical case would be someone who wants to gain entry into a
building to set a fire and kills the watchman; or, after setting the
fire [the agent] kills the watchman who tries to arrest him,
when he was leaving. Obviously, this is not the case, as described by
the Requesting State in its Diplomatic Note, now the object of this
extradition hearing.
But, I am not going to venture into the extremely delicate area--
although [a matter over which] the passive extradition court
has competence to verify dual criminality in the original State; the
Brazilian Law is sufficient for me, where, besides Arson qualified by
the resulting death, there can also be Arson concurrent Homicide; if
Homicide is committed, according to Article 121, Par. 2, no. 5 "to
ensure the execution, cover-up, impunity or advantage of another
crime".
The other question--eligibility or not of the commutation of a life
sentence-- expected to be exciting, wasn't, because the Court's
majority preferred to maintain its established
jurisprudence.
My position is known. I was overruled, and I reaffirm my opinion. I
understand that we must demand commutation of penalties forbidden by
the Constitution in Brazil. I am not going to debate the entire issue
over again, but I understand that the problem does not conform with
the other constitutional guarantees.
An extradition is an international cooperation for penal suppression
and, according to me, the imposition of penalties that were found to
be offensive to human dignity or to the very function of the penalty
as conceived by the Constitution, which for this reason, clearly
forbade it, must be excluded from this cooperation.
Therefore, agreeing with the votes of the Honorable Justices Mauricio
Correa, Marco Aurelio and Celso de Mello, I also would demand the
commutation of the penalties.
[Signature illegible]
OPINION
APPENDIX B
TREATY
OF EXTRADITION BETWEEN THE UNITED STATES OF AMERICA and the
United
States
of Brazil [FN1]
|
FN1.
Signed on January 13, 1961, entered into force on December
17, 1964,
|
|
15
U.S.T.2093; T.I.A.S. No. 5691; Additional Protocol to
Treaty, signed on June 18, 1962, entered into force on
December 17, 1964, 15 U.S.T. 2112; T.I.A.S. No. 5691,
Clerk's Papers at 50-60.
|
The United States of America and the United States of Brazil,
desiring to make more effective the cooperation of their respective
countries in the repression *963
(Cite
as: 132 Wash.2d 852, *963 , 940 P.2d 1293,
**1354)
|
of
crime, have resolved to conclude a treaty of extradition and for this
purpose have appointed the following Plenipotentiaries:
**1355
(Cite
as: 132 Wash.2d 852, *963 , 940 P.2d 1293,
**1355)
|
The
President of the United States of America: His Excellency John Moors
Cabot, Ambassador of the United States of America to Brazil, and
The President of the United States of Brazil: His Excellency Horacio
Lafer, Minister of State for External Relations,
Who, having communicated to each other their respective full powers,
found to be in good and due form, agree as follows:
Article
I
Each
Contracting State agrees, under the conditions established by the
present Treaty and each in accordance with the legal formalities in
force in its own country, to deliver up, reciprocally, persons found
in its territory who have been charged with or convicted of any of
the crimes or offenses specified in Article II of the present Treaty
and committed within the territorial
(Cite
as: 132 Wash.2d 852, *963, 940 P.2d 1293, **1355)
|
jurisdiction
of the other, or outside thereof under the conditions specified in
Article IV of the present Treaty: 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 commitment for trial if the crime or
offense had been there committed.
Article
II
Persons
shall be delivered up according to the provisions of the present
Treaty for prosecution when they have been charged with, or to
undergo sentence when they have been convicted of, any of the
following crimes or offenses:
1. Murder (including crimes designated as parricide, poisoning and
infanticide, when provided for as separate crimes); manslaughter when
voluntary.
2. Rape; abortion; carnal knowledge of (or violation of) a girl under
the age specified by law in such cases in both the requesting and
requested States.
3. Malicious wounding; willful assault resulting in grievous bodily
harm.
4. Abduction, detention, deprivation of liberty, or enslavement of
women or girls for immoral purposes.
5. Kidnapping or abduction of minors or adults for the purpose of
extorting money from them or their families or any other person or
persons, or for any other unlawful end.
6. Bigamy.
7. Arson.
8. The malicious and unlawful damaging of railways, trains, vessels,
aircraft, bridges, vehicles, and other means of travel or of public
or private buildings, or other structures, when the act committed
shall endanger human life.
9. Piracy, by the law of the nations; mutiny on board of vessel or an
aircraft for the purpose of rebelling against the authority of the
Captain or Commander of such vessel or aircraft; or by fraud or
violence taking possession of such vessel or aircraft.
*964
(Cite
as: 132 Wash.2d 852, *964, 940 P.2d 1293, **1355)
|
10.
Burglary, defined to be the breaking into or entering either in day
or night time, a house, office, or other building of a government,
corporation, or private person, with intent to commit a felony
therein; housebreaking.
11. Robbery.
12. Forgery or the utterance of forged papers.
13. The forgery, falsification, theft or destruction of the official
acts or public records of the government or public authority,
including Courts of Justice, or the uttering or fraudulent use of the
same.
14. The fabrication or the utterance, circulation or fraudulent use
of any of the following objects: counterfeit
money, whether coin or paper; counterfeit titles or coupons of public
debt, created by national, state, provincial, territorial, local, or
municipal governments; counterfeit bank notes or other instruments of
public credit; and counterfeit seals, stamps, dies, and marks of
State or public administration.
15. The introduction of instruments for the fabrication of
counterfeit coins or bank notes or other paper currency as money.
**1356
(Cite
as: 132 Wash.2d 852, *964, 940 P.2d 1293, **1356)
|
16.
Embezzlement by any person or persons hired, salaried or employed, to
the detriment of their employers or principals.
17. Larceny.
18. Obtaining money, valuable securities or other property by false
pretenses, or by threats of injury.
19. Receiving any money, valuable securities or other property
knowing the same to have been unlawfully obtained.
20. Fraud or breach of trust by a bailee, factor, trustee, executor,
administrator, guardian, director or officer of any company or
corporation or by anyone in any fiduciary capacity.
21. Willful non-support or willful abandonment of a minor or other
dependent person when death or serious bodily injury results
therefrom.
22. Perjury (including willfully false expert testimony); subornation
of perjury.
23. Soliciting, receiving, or offering bribes.
24. The following offenses when committed by public officials:
extortion; embezzlement.
25. Crimes or offenses against the bankruptcy laws.
26. Crimes or offenses against the laws of both countries for the
suppression of slavery and slave trading.
27. Crimes or offenses against the laws relating to the traffic in,
use of, or production or manufacture of, narcotic drugs or
cannabis.
28. Crimes or offenses against the laws relating to the illicit
manufacture of traffic in substances injurious to health, or
poisonous chemicals.
29. Smuggling, defined to be the act of willfully and knowingly
violating the customs laws with intent to defraud the revenue by
international traffic in merchandise subject to duty.
30. Aiding the escape of a prisoner by force of arms.
31. Use of explosives so as to endanger human life or property.
*965
(Cite
as: 132 Wash.2d 852, *965, 940 P.2d 1293, **1356)
|
32.
Procuration, defined as the procuring or transporting of a woman or
girl under age, even with her consent, for immoral purposes, or of a
woman or girl over age, by fraud, threats, or compulsion, for such
purposes with a view in either case to gratifying the passions of
another person; profiting from the prostitution
of another.
33. The attempt to commit any of the above crimes or offenses, when
such attempt is made a separate offense by the laws of the
Contracting States.
34. Participation in any of the above crimes or offenses.
Article
III
Except
as otherwise provided in the present Treaty, the requested State
shall extradite a person accused or convicted of any crime or offense
enumerated in Article II only when both of the following conditions
exist:
1. The law of the requesting State, in force when the crime or
offense was committed, provides a possible penalty of deprivation of
liberty for a period of more than one year; and
2. The law in force in the requested State generally provides a
possible penalty of deprivation of liberty for a period of more than
one year which would be applicable if the crime or offense were
committed in the territory of the requested State.
Article
IV
When
the crime of offense has been committed outside the territorial
jurisdiction of the requesting State, the request for extradition
need not be honored unless the laws of the requesting State and those
of the requested State authorize punishment of such crime or offense
in this circumstance.
The words "territorial jurisdiction" as used
in this Article and in Article I of the present Treaty mean:
territory, including territorial waters, and the airspace therefor,
belonging to or under the control of one of the Contracting States;
and vessels and aircraft belonging **1357
(Cite
as: 132 Wash.2d 852, *965, 940 P.2d 1293, **1357
)
|
to
one of the Contracting States or to a citizen or corporation thereof
when such vessel is on the high seas or such aircraft is over the
high seas.
Article
V
Extradition
shall not be granted in any of the following circumstances:
1. When the requested State is competent, according to its laws, to
prosecute the person whose surrender is sought for the crime or
offense for which that person's extradition is requested and the
requested State intends to exercise its jurisdiction.
2. When the person whose surrender is sought has already been or is
at the time of the request being prosecuted in the requested State
for the crime or offense for which his extradition is requested.
3. When the legal proceedings or the enforcement of the penalty for
the crime or offense committed has become barred by limitation
according to the laws of either the requesting State or the requested
State.
4. When the person sought would have to appear, in the requesting
State, before an extraordinary tribunal or court.
(Cite
as: 132 Wash.2d 852, *965, 940 P.2d 1293, **1357)
|
*966
(Cite
as: 132 Wash.2d 852, *966, 940 P.2d 1293, **1357)
|
5.
When the crime or offense for which the person's extradition is
requested is purely military.
6. When the crime or offense for which the person's extradition is
requested is of a political character. Nevertheless
a. The allegation by the person sought of political purpose or motive
for the request for his extradition will not preclude that person's
surrender if the crime or offense for which his extradition is
requested is primarily an infraction of the ordinary penal law. In
such case the delivery of the person being extradited will be
dependent on an undertaking on the part of the requesting State that
the political purpose or motive will not contribute toward making the
penalty more severe.
b. Criminal acts which constitute clear manifestations of anarchism
or envisage the overthrow of the bases of all political organizations
will not be classed as political crimes or offenses.
c. The determination of the character of the crime or offense will
fall exclusively to the authorities of the requesting
State.
Article
VI
When
the commission of the crime or offense for which the extradition of
the person is sought is punishable by death under the laws of the
requesting State and the laws of the requested State do not permit
this punishment, the requested State shall not
be obligated to grant the extradition unless the requesting State
shall not be obligated to grant the extradition unless the requesting
State provides assurances satisfactory to the requested State that
the death penalty will not be imposed on such person.
Article
VII
There
is no obligation upon the requested State to grant the extradition of
a person who is a national of the requested State, but the executive
authority of the requested State shall, subject to the appropriate
laws of that State, have the power to surrender a national of that
State if, in its discretion, it be deemed proper to do so.
Article
VIII
The
Contracting States may request, one from the other, through the
channel of their respective diplomatic or consular agents, the
provisional arrest of a fugitive as well as the seizure of articles
relating to the crime or offense.
The request for provisional arrest shall be granted provided that the
crime or offense for which the extradition of the fugitive is sought
is one for which extradition shall be granted under the present
Treaty and provided that the request contains:
1. A statement of the crime or offense of which the fugitive is
accused or convicted;
2. A description of the person sought for the
purpose of identification;
*967
(Cite
as: 132 Wash.2d 852, *967, 940 P.2d 1293, **1357)
|
3.
A statement of the probable whereabouts of the fugitive, if known;
and
**1358
(Cite
as: 132 Wash.2d 852, *967, 940 P.2d 1293, **1358)
|
4.
A declaration that there exist and will be forthcoming the relevant
documents required by Article IX of the present Treaty.
If, within a maximum period of 60 days from the date of the
provisional arrest of the fugitive in accordance with this Article,
the requesting State does not present the formal request for his
extradition, duly supported, the person detained will be set at
liberty and a new request for his extradition will be accepted only
when accompanied by the relevant documents required by Article IX of
the present Treaty.
Article
IX
The
request for extradition shall be made through diplomatic channels or,
exceptionally, in the absence of diplomatic agents, it may be made by
a consular officer, and shall be supported by the following
documents:
1. In the case of a person who has been convicted of the crime or
offense for which his extradition is sought: a duly certified or
authenticated copy of the final sentence of the competent court.
2. In the case of a person who is merely charged with the crime or
offense for which his extradition is sought: a duly certified or
authenticated copy of the warrant of arrest or
other order of detention issued by the competent authorities of the
requesting State, together with the depositions upon which such
warrant or order may have been issued and such other evidence or
proof as may be deemed competent in the case.
The documents specified in this Article must contain a precise
statement of the criminal act of which the person sought is charged
or convicted, the place and date of the commission of the criminal
act, and they must be accompanied by an authenticated copy of the
texts of the applicable laws of the requesting State including the
laws relating to the limitation of the legal proceedings or the
enforcement of the penalty for the crime or offense for which the
extradition of the person is sought, and data or records which will
prove the identity of the person sought.
The documents in support of the request for extradition shall be
accompanied by a duly certified translation thereof into the language
of the requested State.
Article
X
When
the extradition of a person has been requested by more than one
State, action thereon will be taken as follows:
1. If the requests deal with the same criminal act, preference will
be given to the request of the State in whose territory the act was
performed.
2. If the requests deal with different
criminal acts, preference will be given to the request of the State
in whose territory the most serious crime or offense, in the opinion
of the requested State, has been committed.
3. If the requests deal with different criminal acts, but which the
requested State regards as of equal gravity, the preference will be
determined by the priority of the requests.
Article
XI
The
determination that extradition based upon the request therefor should
*968
(Cite
as: 132 Wash.2d 852, *968, 940 P.2d 1293, **1358)
|
or
should not be granted shall be made in accordance with the domestic
law of the requested State, and the person whose extradition is
desired shall have the right to use such remedies and recourses as
are authorized by such law.
Article
XII
If
at the time the appropriate authorities of the requested State shall
consider the documents submitted by the requesting State, as required
in Article IX of the present Treaty, in support of its request for
the extradition of the person sought, it shall appear that such
documents do not constitute evidence sufficient to warrant
extradition under the provisions of the present Treaty of the person
sought, such person shall be set at liberty unless the requested
State or the proper tribunal thereof shall, in conformity with its
own laws, order an extension of time for the
submission by the requesting State of additional evidence.
Article
XIII
Extradition
having been granted, the surrendering State shall communicate
promptly **1359
(Cite
as: 132 Wash.2d 852, *968, 940 P.2d 1293, **1359)
|
to
the requesting State that the person to be extradited is held at its
disposition.
If, within 60 days counting from such communication-except when
rendered impossible by force majeure or by some act of the person
being extradited or the surrender of the person is deferred pursuant
to Articles XIV or XV of the present Treaty-such person has not been
delivered up and conveyed out of the jurisdiction of the requested
State, the person shall be set at liberty.
Article
XIV
When
the person whose extradition is requested is being prosecuted or is
serving a sentence in the requested State, the surrender of that
person under the provisions of the present Treaty shall be deferred
until the person is entitled to be set at liberty, on account of the
crime or offense for which he is being prosecuted or is serving a
sentence, for any of the following reasons: dismissal of the
prosecution, acquittal, expiration of the term of the sentence or the
term to which such sentence may have been commuted, pardon, parole,
or amnesty.
Article
XV
When,
in the opinion of competent medical authority, duly sworn to, the
person whose extradition is requested cannot be transported from the
requested State to the requesting State without serious danger to his
life due to grave illness, the surrender of the person under the
provisions of the present Treaty shall be deferred until such time as
the danger, in the opinion of the competent medical authority, has
been sufficiently mitigated.
Article
XVI
The
requesting State may send to the requested State one or more duly
authorized agents, either to aid in the identification of the person
sought or to receive his surrender and to convey him out of the
territory of the requested State.
*969
(Cite
as: 132 Wash.2d 852, *969, 940 P.2d 1293, **1359)
|
Such agents, when in the territory of the requested State, shall be
subject to the applicable laws of the requested State, but the
expenses which they incur shall be for the account of the State which
has sent them.
Article
XVII
Expenses
related to the transportation of the person extradited shall be paid
by the requesting State. The appropriate legal officers of the
country in which the extradition proceedings take place shall, by all
legal means within their power, assist the
officers of the requesting State before the respective judges and
magistrates. No pecuniary claim, arising out of the arrest,
detention, examination and surrender of fugitives under the terms of
the present Treaty, shall be made by the requested State against the
requesting State other than as specified in the second paragraph of
this Article and other than for the lodging, maintenance, and board
of the person being extradited prior to his surrender.
The legal officers, other officers of the requested State, and court
stenographers in the requested State who shall, in usual course of
their duty, give assistance and who receive no salary or compensation
other than specific fees for services performed, shall be entitled to
receive from the requesting State the usual payment for such acts or
services performed by them in the same manner and to the same amount
as though such acts or services had been performed in ordinary
criminal proceedings under the laws of the country of which they are
officers.
Article
XVIII
A
person who, after surrender by either of the Contracting States to
the other under the terms of the present Treaty, succeeds in escaping
from the requesting State and takes refuge in the territory of the
State which has surrendered him, or passes through it in transit,
will be detained, upon simple diplomatic
request, and surrendered anew, without other
formalities, to the State to which his extradition was
granted.
Article
XIX
Transit
through the territory of one of the Contracting States of a person in
the custody of an agent of the other Contracting State, and
surrendered to the latter by a third **1360
(Cite
as: 132 Wash.2d 852, *969, 940 P.2d 1293, **1360)
|
State, and who is not of the nationality of the country of transit,
shall, subject to the provisions of the second paragraph of this
Article, be permitted, independently of any judicial formalities,
when requested through diplomatic channels and accompanied by the
presentation in original or in authenticated copy of the document by
which the State of refuge has granted the extradition. In the United
States of America, the authority of the Secretary of State of the
United States of America shall be first obtained.
The permission provided for in this Article may nevertheless be
refused if the criminal act which has given rise to the extradition
does not constitute a crime or offense enumerated in Article II of
the present Treaty, or when grave reasons of public order are opposed
to the transit.
Article
XX
Subject
to the rights of third parties, which shall be duly respected:
*970
(Cite
as: 132 Wash.2d 852, *970, 940 P.2d 1293, **1360)
|
1.
All articles, valuables, or documents which relate to the crime or
offense and, at the time of the arrest, have been found in the
possession of the person sought or otherwise
found in the requested State shall be surrendered, with him, to the
requesting State.
2. The articles and valuables which may be found in the possession of
third parties and which likewise are related to the crime or offense
shall also be seized, but may be surrendered only after the rights
with regard thereto asserted by such third parties have been
determined.
Article
XXI
A
person extradited by virtue of the present Treaty may not be tried or
punished by the requesting State for any crime or offense committed
prior to the request for his extradition, other than that which gave
rise to the request, nor may he be re-extradited by the requesting
State to a third country which claims him, unless the surrendering
State also agrees or unless the person extradited, having been set at
liberty within the requesting State, remains voluntarily in the
requesting State for more than 30 days from the date on which he was
released. Upon such release, he shall be informed of the consequences
to which his stay in the territory of the requesting State would
subject him.
Article
XXII
The
present Treaty shall be ratified and the ramifications thereof shall
be exchanged at Washington, as soon as possible.
The present Treaty shall enter into force one
month after the date of exchange of ratification. It may be
terminated at any time by either Contracting State giving notice of
termination to the other Contracting State, and the termination shall
be effective six months after the date of such notice.
IN WITNESS WHEREOF the respective Plenipotentiaries have signed the
present Treaty and have affixed hereunto their seals.
DONE in duplicate, in the English and Portuguese languages, both
equally authentic, at Rio de Janeiro, this thirteenth day of January,
one thousand nine hundred sixty-one.
[SEAL] JOHN M. CABOT
[SEAL] HORACIO LAFER
Additional
Protocol to the Treaty of Extradition of January 13, 1961,
Between
the United States of America and the United States of
Brazil
The
United States of America and the United States of Brazil,
Having concluded at Rio de Janiero, on January 13, 1961, a Treaty of
Extradition for the purpose of making more effective the cooperation
between the two countries in the repression of crime,
And desiring to make clear that their respective nationals will be
subject to extradition only if the constitutional and legal
provisions in force in their territories permit it,
*971
(Cite
as: 132 Wash.2d 852, *971, 940 P.2d 1293, **1360)
|
Have resolved to sign an Additional Protocol to the aforementioned
Treaty of Extradition and, to this end, have appointed the following
Plenipotentiaries:
The president of the United States of America: His Excellency Lincoln
Gordon, Ambassador Extraordinary and Plenipotentiary to Brazil,
and
**1361
(Cite
as: 132 Wash.2d 852, *971, 940 P.2d 1293, **1361)
|
The
President of the Republic of the United States of Brazil: His
Excellency Francisco Clementino de San Tiango [sic] Dantas,
Minister of State for External Relations,
Who, having communicated to each other their respective full powers,
found to be in good and due form, agree as follows:
Article
I
Article
VII of the Treaty of Extradition concluded between the countries at
Rio de Janeiro, on January 13, 1961, shall be interpreted as
follows:
"The Contracting Parties are not obliged by this Treaty to grant
extradition of their nationals. However, if the Constitution and laws
of the requested State do not prohibit it, its executive authority
shall have power to surrender a national if, in its discretion, it be
deemed proper to do so."
Article
II
The
present Protocol shall enter into force on the same date as the
Treaty of Extradition of January 13, 1961, and shall cease to be
effective on the date of termination of the
Treaty.
In WITNESS hereof, the respective Plenipotentiaries have signed the
present Additional Protocol and have fixed hereunto their seals.
DONE in duplicate, in the English and Portuguese languages, both
equally authentic, at Rio de Janeiro, on this eighteenth day of June,
one thousand nine hundred sixty-two.
LINCOLN
GORDON
FC
DE SAN TIAGO [SIC] DANTAS
[SEAL]
WHEREAS the Senate of the United States of America by their
resolution of May 16, 1961, two-thirds of the Senators present
concurring therein, did advise and consent to the ratification of the
treaty and by their resolution of October 22, 1963, two thirds of the
Senators present concurring therein, did advise and consent to the
ratification of the additional protocol;
WHEREAS the President of the United States of America ratified the
treaty on May 29, 1961 and the additional protocol on October 29,
1963, in pursuance of the advice and consent of the Senate, and the
Government of the United States of Brazil has duly ratified the
treaty and the additional protocol;
WHEREAS the respective instruments of ratification of the treaty and
the additional protocol were duly exchanged at Washington on November
17, 1964;
AND WHEREAS it is provided in Article XXII of
the treaty that the treaty shall enter into force one month after the
date of exchange of ratification, and it
*972
(Cite
as: 132 Wash.2d 852, *972, 940 P.2d 1293, **1361)
|
is
provided in Article II of the additional protocol that the additional
protocol shall enter into force on the same date as the treaty;
NOW, THEREFORE, be it known that I, Lyndon B. Johnson, President of
the United States of America, do hereby proclaim and make public the
said treaty and additional protocol, to the end that the same and
every article and clause thereof may be observed and fulfilled in
good faith on and after December 17, 1964, one month after the day of
exchange of instruments of ratification, by the United States of
America and by the citizens of the United States of America and all
other persons subject to the jurisdiction thereof.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Seal
of the United States of America to be affixed.
DONE at the city of Washington this twentieth day of November in the
year of our Lord one thousand nine hundred sixty-four and of the
independence of the United States of America the one hundred
eighty-ninth.
[SEAL]
Lyndon B. Johnson
By the President:
George W. Ball Acting Secretary of State
END OF DOCUMENT
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