Ross v. U.S. Marshal ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 17 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
GEORGE FINBAR ROSS,
Petitioner-Appellant,
v. No. 98-7083
UNITED STATES MARSHAL for the
Eastern District of Oklahoma,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. CV-98-189-B)
Neal A. Goldfarb (Thomas Earl Patton of Tighe, Patton, Tabackman & Babbin,
L.L.C., Washington, D.C.; Mark Green, Muskogee, Oklahoma, with him on the
briefs), of Tighe, Patton, Tabackman & Babbin, L.L.C., Washington, D.C., for
Petitioner-Appellant.
Sean Connelly (Bruce Green, United States Attorney for the Eastern District of
Oklahoma, Muskogee, Oklahoma; Sara Criscitelly, Department of Justice,
Washington, D.C., on the brief), Assistant United States Attorney, Denver,
Colorado, for Respondent-Appellee.
Before BRORBY, BARRETT and EBEL, Circuit Judges.
BRORBY, Circuit Judge.
The Government of Northern Ireland, United Kingdom issued warrants for
the arrest of Appellant, George Finbar Ross, for forty-one charged offenses
stemming from Mr. Ross’ alleged involvement in a fraudulent investment scheme.
The United States subsequently arrested Mr. Ross pursuant to an extradition treaty
existing between the United States and the United Kingdom. After a magistrate
judge certified his extradition, Mr. Ross filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 challenging his extradition. The district court
denied the petition and Mr. Ross filed this appeal. We exercise jurisdiction
pursuant to 28 U.S.C. § 2253 and we affirm.
I. Background
In 1976, Mr. Ross, a then citizen of the Republic of Ireland, established an
offshore investment company in Gibraltar called International Investment Limited
(“International Investment”). Mr. Ross was beneficial owner of International
Investment and ran the day-to-day operations of International Investment’s Dublin
office. Over a several-year period, International Investment solicited millions of
dollars from investors, primarily in Northern Ireland. International Investment
purported to invest the depositors’ money in several funds and promised high
rates of tax-free interest. However, investigators from Northern Ireland
concluded International Investment actually used depositors’ funds to
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make unsecured loans to Mr. Ross and to related companies set up by Mr. Ross.
Among other things, Mr. Ross used International Investment funds to build a
home and purchase artwork.
An International Investment auditor first expressed concern over
International Investment’s financial viability around 1980 or 1981. However,
limited access to records and unprofessionally kept books thwarted various
attempts to perform a full audit. Gibraltar banking officials also had little success
in obtaining audited accounts from either International Investment or Mr. Ross, as
required by 1982 changes to Gibraltar banking regulations. A former
International Investment employee estimated that by 1982, International
Investment was using depositors’ investments to pay interest to previous
investors. Liquidators would later conclude International Investment was
insolvent by mid-1982.
In late October 1983, Mr. Ross moved his residence from the Republic of
Ireland to the United States. Mr. Ross visited Northern Ireland in December 1983
to conduct a seminar for International Investment brokers and depositors. At that
seminar, Mr. Ross encouraged depositors to make further investments and
emphasized International Investment’s financial strength even though
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International Investment was in fact insolvent and had been for approximately
eighteen months. In February 1984, Mr. Ross again returned to Northern Ireland
and reassured a group of concerned brokers that while International Investment
had a cash flow problem, the company’s investments were sound. International
Investment went into liquidation on June 14, 1984. Although International
Investment owed approximately $7,750,000 to depositors, liquidators were unable
to realize any International Investment assets for distribution to them.
The Royal Ulster Constabulary commenced an investigation into
International Investment’s affairs in 1985, and on June 28, 1996 and February 27,
1997, Northern Ireland officials issued warrants for Mr. Ross’ arrest. The
warrants charged Mr. Ross with fraudulent conduct occurring between December
1983 and March 1984. United States officials arrested Mr. Ross on March 4,
1998, and Northern Ireland immediately requested extradition pursuant to the
Extradition Treaty Between the Government of the United States of America and
the Government of the United Kingdom of Great Britain and Northern Ireland,
Oct. 21, 1976, U.S.-U.K., 28 U.S.T. 227 (“Extradition Treaty”). A magistrate
certified Mr. Ross’ extradition and ordered him held in custody pending surrender
to Northern Ireland. Mr. Ross filed a petition for writ of habeas corpus, arguing
his confinement violates the Extradition Treaty. After reviewing the magistrate’s
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findings and conclusions, the district court denied Mr. Ross’ petition.
II. Extradition
The scope of review of a magistrate judge’s extradition order under a treaty
with a foreign country is limited to “determining whether the magistrate had
jurisdiction, whether the offense charged is within the treaty and, by a somewhat
liberal construction, whether there was any evidence warranting the finding that
there was reasonable ground to believe the accused guilty.” Peters v. Egnor, 888
F.2d 713, 716 (10th Cir. 1989) (quotation marks and citation omitted). In this
case, Mr. Ross does not contest the magistrate’s jurisdiction nor challenge the
evidence of his guilt. Rather, he argues the offenses charged are not within the
treaty because: (1) the charges are time-barred under the relevant statute of
limitations, and (2) the warrants charging Mr. Ross with “false accounting” do not
meet the dual criminality requirement.
1. Statute of Limitations
Article V of the Extradition Treaty provides extradition shall not be granted
if the prosecution has become time-barred according to the law of either the
requesting or requested country. Extradition Treaty, 28 U.S.T. at 230. No
Northern Ireland statute of limitations applies to Mr. Ross’ charges. The
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applicable United States law provides for a five-year statute of limitations. 18
U.S.C. § 3282. The statute may be tolled, however, if the accused is a fugitive
“fleeing from justice.” 18 U.S.C. § 3290.
In this case, Northern Ireland seeks extradition based on charges brought
approximately twelve years after Mr. Ross committed the alleged offenses – well
beyond the statutory limit. However, the district court concluded the statute
tolled because Mr. Ross was fleeing from justice when he moved to the United
States in October 1983. In relevant part, the court concluded (1) in order to toll
the statute, the government had to prove by a preponderance of the evidence that
Mr. Ross had an intent to avoid prosecution or arrest, and (2) the record supported
the magistrate’s finding that Mr. Ross knew he was likely to be charged with a
crime when he moved to the United States and therefore acted with the intent to
avoid an anticipated prosecution. Mr. Ross argues the evidence does not support
this conclusion because at the time he moved, North Ireland officials had not
commenced an investigation nor charged him with any crime. Moreover, Mr.
Ross argues he could not have been trying to avoid prosecution for the charges
which underlie the extradition request because conduct he is charged with
occurred after he moved. We review the district court’s interpretation of the
tolling statute de novo; United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.),
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cert. denied, 501 U.S. 1207 (1991), and the court’s determination Mr. Ross was
fleeing from justice for clear error. United States v. Greever, 134 F.3d 777, 781
(6th Cir. 1998); United States v. Marshall, 856 F.2d 896, 900-01 (7th Cir. 1988).
As a preliminary matter, we must first determine what constitutes “fleeing
from justice” under the statute. The circuit courts are currently split on the issue.
A small minority of circuits have held mere absence from the jurisdiction in
which the crime was committed is enough to toll the statute. In re Assarsson, 687
F.2d 1157, 1162 (8th Cir. 1982); McGowen v. United States, 105 F.2d 791, 792
(D.C. Cir. 1939). The district court, on the other hand, adopted the majority
view, which requires the prosecution to prove the accused had an intent to avoid
arrest or prosecution. See Greever, 134 F.3d at 780; United States v. Rivera-
Ventura, 72 F.3d 277, 283 (2d Cir. 1995); United States v. Fonseca-Machado, 53
F.3d 1242, 1244 (11th Cir.), cert. denied, 516 U.S. 925 (1995); United States v.
Marshall, 856 F.2d 896, 900 (7th Cir. 1988); United States v. Gonsalves, 675
F.2d 1050, 1052 (9th Cir.), cert. denied, 459 U.S. 837 (1982); Donnell v. United
States, 229 F.2d 560, 565 (5th Cir. 1956); Brouse v. United States, 68 F.2d 294,
295 (1st Cir. 1933). The Supreme Court has not squarely addressed the issue.
However, in considering the predecessor to 18 U.S.C. § 3290, the Court in Streep
v. United States, 160 U.S. 128 (1895) implicitly recognized intent as an element
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of fleeing from justice, id. at 133 (“In order to constitute a fleeing from justice ...
[i]t is sufficient that there is a flight with the intention of avoiding being
prosecuted.”) Consistent with Streep, we conclude “fleeing from justice” requires
the government to prove, by a preponderance of the evidence, the accused acted
with the intent to avoid arrest or prosecution. 1
Having thus determined the appropriate standard of proof, we must decide
whether the district court committed clear error in finding Mr. Ross had the
requisite intent to flee arrest or prosecution when he moved to the United States.
We believe the record supports the district court’s conclusion. By October 1983,
the investigatory record indicates Mr. Ross was aware of the International
Investment’s ongoing fraudulent scheme – he knew International Investment used
investors’ money to make multiple unsecured loans for his benefit and to pay
interest to previous investors. Mr. Ross also likely knew International Investment
was insolvent or rapidly approaching insolvency, and that International
1
We note this interpretation is not entirely without precedent in this
circuit. In 1873, the Circuit Court of Kansas, a predecessor to this court, came to
a similar conclusion when it held fleeing from justice meant “to leave one’s home
or residence or known place of abode, with intent to avoid detection or
punishment.” United States v. O’Brian, 27 F. Cas. 212, 213 (C.C. Kan. 1873) (No.
15,908). Congress replaced the circuit courts with the current United States
Courts of Appeals in 1891. See generally Erwin Chemerinsky, Federal
Jurisdiction 23-25 (2d ed. 1994).
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Investment would soon have to submit to a full audit to maintain its Gibraltar
banking license, thereby revealing the fraudulent scheme. Based on this evidence,
it was not clearly erroneous for the district court to infer Mr. Ross’ intent to flee
arrest or prosecution. 2
The fact that Northern Ireland had not yet initiated its investigation does
not change this conclusion. An accused may form the requisite intent even
though prosecution has not actually begun. See Streep, 160 U.S. at 133 (“It is
sufficient that there is a flight with the intention of avoiding being prosecuted,
whether a prosecution has or has not been actually begun.”); United States v.
Ballesteros-Cordova, 586 F.2d 1321, 1323 (9th Cir. 1978) (“The statute of
limitations will be tolled whenever the suspect flees with the intent of avoiding
prosecution, even if prosecution has not actually begun at the time of the flight.”).
In other words, an intent to avoid an anticipated arrest or prosecution is sufficient
2
We realize the district court’s opinion relies in part on conduct that
occurred after Mr. Ross moved to the United States – specifically statements
made to investors in December 1983 and February 1984. While we acknowledge
the limited relevance of this conduct, we nevertheless find sufficient pre-October
1983 evidence to support the district court’s finding. See Seibert v. Oklahoma,
867 F.2d 591, 597 (10th Cir. 1989) (“An appellate court may affirm the judgment
of a district court on any grounds that find support in the record, provided the
litigants have had a fair opportunity to develop the record.”)
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to toll the statute. 3
We likewise reject Mr. Ross’ argument that he did not have the intent to
avoid prosecution because the charged conduct occurred after he moved. A
prosecutor’s decision as to which charges to file is a matter of discretion and
involves consideration of many factors. See generally Wayte v. United States,
470 U.S. 598, 607 (1985) (listing factors which affect prosecutorial discretion
such as strength of the case, deterrence value, and enforcement priorities); United
States v. Zabawa, 39 F.3d 279, 284 (10th Cir. 1994) (recognizing prosecutor
discretion to choose which crimes of any given criminal to prosecute). We fail to
see how this decision-making process limited or restricted Mr. Ross’ intent to flee
prosecution in October 1983. More important, the record indicates Mr. Ross was
aware of the potential criminality of his conduct and its imminent discovery in
October 1983. Because this evidence forms a sufficient basis from which to infer
Mr. Ross’ intent to avoid an anticipated prosecution, we conclude the district
3
As the government correctly points out, it makes no difference that Mr.
Ross moved to the United States from the Republic of Ireland rather than
Northern Ireland, the country seeking extradition. The government need not
prove Mr. Ross had the intent to flee a particular court system or state. Streep,
160 U.S. at 134-35. It is enough that the accused has “an intent to avoid the
justice of the state having criminal jurisdiction over the same territory and the
same act.” Id. at 135.
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court’s determination was not clearly erroneous. 4
2. Dual Criminality
Under Article III of the Extradition Treaty, an offense must meet the dual
criminality requirement in order to be extraditable. Extradition Treaty, 28 U.S.T.
at 229. The doctrine of dual criminality requires the offense with which the
accused is charged to be “punishable as a serious crime in both the requesting and
requested states.” Peters, 888 F.2d at 718 (quotation marks and citation omitted).
To satisfy the dual criminality requirement, the requesting and requested
countries’ statutes must be substantially analogous or “punish conduct falling
within the broad scope of the same generally recognized crime.” Id. at 719(quotation marks and citation omitted).
The magistrate concluded the offenses listed in Mr. Ross’ extradition
4
Mr. Ross argues he had legitimate, business-related reasons for moving
and notes he has lived openly in the United States since he moved. However, it
was within the district court’s discretion to weigh this evidence. Federal Deposit
Ins. Corp. v. Hamilton, 122 F.3d 854, 860 (10th Cir. 1997). Because we find the
district court’s finding permissible in light of the entire record, we uphold the
court’s determination regarding Mr. Ross’ intent. See Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (“If the district court's account of the
evidence is plausible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.”)
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request met the dual criminality requirement. Specifically, the magistrate
determined Mr. Ross’ alleged conduct is criminal under the United States statutes
prohibiting mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, and the Oklahoma
false pretenses statute; Okla. Stat. tit. 21, §1541.2. Mr. Ross argues the warrants
charging him with “false accounting” do not meet the duality requirement. 5 The
issue of whether dual criminality is satisfied is a legal question we review de
novo. Peters, 888 F.2d at 718.
Warrants six through forty-one charge Mr. Ross with violating § 17(1)(b)
of the Theft Act (Northern Ireland) of 1969 which makes it a crime for one to
produce or make use of a misleading, false or deceptive account or other
5
Although Mr. Ross did not specifically address the dual criminality issue
in his habeas petition, he argues he adequately preserved the issue because his
petition incorporated by reference all arguments made in proceedings before the
magistrate. As a general rule, we will not consider an issue not “presented to,
considered [and] decided by the trial court.” Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 721 (10th Cir. 1993) (quotation marks and citation omitted).
However, we retain discretion to consider issues for the first time on appeal based
on the facts of the individual case. Lyons, 994 F.2d at 721 (quoting Singleton v.
Wulff, 428 U.S. 106, 121 (1976)). Here, it is debatable whether Mr. Ross
adequately raised the issue in front of the district court. See Lyons, 994 F.2d at
721 (“[V]ague, arguable references to [a] point in the district court proceedings
do not preserve the issue on appeal.” (Quotation marks and citation omitted).).
Assuming he did not, we nevertheless exercise our discretion to hear the dual
criminality issue because it is purely a matter of law; see Stahmann Farms, Inc. v.
United States, 624 F.2d 958, 961 (10th Cir. 1980), and because its proper
resolution is certain; see Singleton, 428 U.S. at 121.
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document made for accounting purposes, “with a view to gain for himself or
another or with intent to cause loss to another.” Mr. Ross argues this section of
the Theft Act is not substantially analogous to the federal mail and wire fraud
statutes because those statutes, unlike the Theft Act, require proof the defendant
carried out a fraudulent scheme through use of the mails or wire transmissions.
We disagree. The Theft Act and the mail and wire fraud statutes proscribe the
same basic conduct–use of false representations to defraud or obtain property.
See United States v. Sensi, 879 F.2d 888, 893 (D.C. Cir. 1989) (concluding
offense underlying both the Theft Act and mail fraud statue was stealing); United
States v. Herbage, 850 F.2d 1463, 1466 (11th Cir. 1988) (finding dual criminality
between Theft Act and mail fraud statute), cert. denied, 489 U.S. 1027 (1989).
The element requiring use of the mails or interstate wire transmission is merely a
jurisdictional requirement which makes the underlying crime federal in nature.
Sensi, 879 F.2d at 893; Herbage, 850 F.2d at 1466; Emami v. United States Dist.
Court, 834 F.2d 1444, 1450 (9th Cir. 1987). The criminal conduct each statute
proscribes remains substantially analogous, thus satisfying the dual criminality
requirement. 6 Peters, 888 F.2d at 719-20.
6
Because we conclude duality exists between the Theft Act and the mail
and wire fraud statutes, we need not address the parties’ arguments regarding the
Oklahoma false pretenses statute.
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The judgment of the district court is AFFIRMED.
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