United States v. Anderson ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30211
Plaintiff-Appellee, D.C. No.
v.  CR-02-00423-
KEITH E. ANDERSON, 001-JCC
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Chief District Judge, Presiding
Argued and Submitted
October 16, 2006—Seattle, Washington
Filed December 28, 2006
Before: Dorothy W. Nelson, David R. Thompson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Thompson
20011
20014 UNITED STATES v. ANDERSON
COUNSEL
Darla Mondou, Marana, Arizona, for the defendant-appellant.
Eileen J. O’Connor, Alan Hechtkopf, Karen M. Quesnel, and
Gregory Victor Davis, Department of Justice, Tax Division,
UNITED STATES v. ANDERSON 20015
Washington, D.C., and John McKay, United States Attorney,
of counsel, for the plaintiff-appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Defendant-Appellant Keith E. Anderson appeals his con-
victions and sentence for conspiracy to defraud the United
States, conspiracy to commit mail and wire fraud, aiding and
assisting the filing of materially false income tax returns, mail
fraud, wire fraud, conspiracy to commit money laundering,
and international money laundering. Anderson received a sen-
tence of twenty years in prison, three years of supervised
release, and monetary penalties.
Anderson contends that his convictions and sentence
should be reversed because his appeal of the annulment of his
Costa Rican citizenship was pending in Costa Rica when he
was extradited to the United States to stand trial for the
above-listed offenses. Therefore, he asserts the district court
lacked personal jurisdiction over him.
Anderson also argues for the first time in his reply brief
filed in this Court that his convictions for money laundering
and conspiracy to commit money laundering should be
vacated under the doctrines of dual criminality and specialty
because the Costa Rican court specifically held that the
money laundering offenses did not satisfy the terms of the
extradition treaty and refused to grant the United States’
extradition request for those charges.1
1
“Dual criminality” and “specialty” are doctrines incorporated in the
United States-Costa Rica Extradition Treaty. Extradition Treaty, U.S.-
Costa Rica, art. 2 ¶ 1 and art. 16, Dec. 4, 1982, S. Treaty Doc. No. 98-17.
“Dual criminality requires that an accused may be extradited only if the
20016 UNITED STATES v. ANDERSON
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm all of Anderson’s convictions except his convictions
for conspiracy to commit money laundering in violation of 18
U.S.C. § 1956(h) and international money laundering in viola-
tion of 18 U.S.C. §§ 2 and 1956(a)(2)(A). We remand this
case to the district court for consideration of Anderson’s dual
criminality and specialty defenses to the money laundering
charges (counts 98-104), and for resentencing as may be
appropriate.
I. BACKGROUND
In 1996, Anderson and his brother, Lowell Wayne Ander-
son, formed an organization called Anderson’s Ark and Asso-
ciates (“AAA”) to assist United States taxpayers in avoiding
income taxes. Anderson then lived in the State of Washing-
ton. In 1999, he moved to Costa Rica and established AAA’s
Costa Rican headquarters. On October 9, 2001, Anderson
petitioned for naturalized Costa Rican citizenship. Just over a
month later, the United States government filed a criminal
complaint against Anderson in the Western District of Wash-
ington, charging him with conspiracy to defraud the United
States under 18 U.S.C. § 371 in connection with his AAA
activities. The government also obtained a warrant for Ander-
son’s arrest.
In early February 2002, Anderson was detained in Costa
Rica at the United States’ behest. The United States filed a
alleged criminal conduct is considered criminal under the laws of both the
surrendering and requesting nations.” Clarey v. Gregg, 138 F.3d 764, 765
(9th Cir. 1998) (quoting United States v. Saccoccia, 18 F.3d 795, 800 n.6
(9th Cir. 1994)). “Specialty” requires that an extradited person be tried
only “for the crime[s] for which he has been extradited.” Benitez v. Gar-
cia, 449 F.3d 971, 976 (9th Cir. 2006) (quoting Johnson v. Browne, 205
U.S. 309, 316 (1907)). In Costa Rica, money laundering is punishable as
a criminal offense only if the laundered money is from drug trafficking,
and in Anderson’s case the laundered funds were not derived from that
activity.
UNITED STATES v. ANDERSON 20017
formal request for extradition with the Costa Rican govern-
ment in March 2002. Then, on July 3, 2002, Anderson’s Costa
Rican citizenship petition was granted; three weeks later, a
Costa Rican criminal trial court granted the United States’
extradition request. Shortly thereafter, the Costa Rican gov-
ernment annulled Anderson’s Costa Rican citizenship.
Anderson filed appeals in Costa Rica, challenging the
annulment of his Costa Rican citizenship and the decision of
the Costa Rican trial court to grant extradition. On December
4, 2002, before either of these appeals had been decided,
Anderson was transported from Costa Rica to Miami by
United States government agents.
An eighty-six-count indictment was filed against Anderson
in the Western District of Washington on December 10, 2002,
and he was transferred to and arraigned in Seattle shortly
thereafter. A second superceding indictment was filed on
August 11, 2004, adding sixteen counts to the original indict-
ment.
After a thirty-eight-day jury trial in which Anderson repre-
sented himself, he was convicted of one count of conspiracy
to defraud the United States under 18 U.S.C. § 371, one count
of conspiracy to commit mail and wire fraud in violation of
18 U.S.C. § 371, ten counts of aiding and assisting the filing
of materially false income tax returns in violation of 26
U.S.C. § 7206(2), forty-four counts of aiding and/or assisting
the preparation of fraudulent tax returns in violation of 26
U.S.C. § 7206(2), eighteen counts of mail fraud in violation
of 18 U.S.C. §§ 2 and 1341, eleven counts of wire fraud in
violation of 18 U.S.C. §§ 2 and 1342, one count of conspiracy
to commit money laundering in violation of 18 U.S.C.
§ 1956(h), and six counts of international money laundering
in violation of 18 U.S.C. §§ 2 and 1956(a)(2)(A). Anderson
was sentenced to twenty years in prison, three years of super-
20018 UNITED STATES v. ANDERSON
vised release, $36,525,860 restitution,2 and a $9,200 penalty
assessment. This appeal followed.
II. STANDARDS OF REVIEW
Jurisdictional issues are reviewed de novo, see United
States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004), as are
challenges to personal jurisdiction based on the alleged viola-
tion of an extradition treaty between the United States and
another country. United States v. Matta-Ballesteros, 71 F.3d
754, 762 (9th Cir. 1995). Interpretation of an extradition
treaty, including whether the doctrines of dual criminality and
specialty are satisfied, is also reviewed de novo. United States
v. Khan, 993 F.2d 1368, 1372 (9th Cir. 1993) (citing United
States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir.
1987)).
III. DISCUSSION
A. Personal Jurisdiction
[1] The general rule under the Ker/Frisbie line of cases is
that the means used to bring a criminal defendant before a
court do not deprive that court of personal jurisdiction over
the defendant. United States v. Alvarez-Machain, 504 U.S.
655, 661-62 (1992) (citing and quoting Ker v. Illinois, 119
U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952)).
Nevertheless, the Ker/Frisbie doctrine does not apply, and a
court is deprived of jurisdiction over an extradited defendant,
if either: (1) the transfer of the defendant violated the applica-
ble extradition treaty, or (2) the United States government
engaged in “misconduct ‘of the most shocking and outrageous
kind’ ” to obtain his presence. Matta-Ballesteros, 71 F.3d at
762-64 (quoting United States v. Valot, 625 F.2d 308, 310
(9th Cir. 1980)).
2
The amount of restitution was increased to $45,794,980.05 in an
amended judgment filed October 20, 2005.
UNITED STATES v. ANDERSON 20019
1. Alleged Treaty Violations
[2] Our analysis of the challenge to personal jurisdiction
begins with the express terms of the applicable extradition
treaty. See Alvarez-Machain, 504 U.S. at 663. The United
States-Costa Rica Extradition Treaty does not oblige either
country to refrain from granting extradition if an appeal
regarding the defendant’s citizenship status is pending. See
Extradition Treaty, U.S.-Costa Rica, Dec. 4, 1982, S. Treaty
Doc. No. 98-17 (1991). Instead, the treaty provides:
The Requested State shall undertake all available
legal measures to suspend proceedings for the natu-
ralization of the person sought until a decision is
made on the request for extradition and, if that
request is granted, until that person is surrendered.
Id. art. 8, ¶ 2.
[3] Thus, under the treaty, Costa Rica was required to sus-
pend its decision on Anderson’s request for naturalized citi-
zenship until after it surrendered Anderson to the United
States. The United States’ extradition request was filed in
March 2002. The Costa Rican trial court granted extradition
on July 24, 2002, and Anderson was removed to Florida on
December 4, 2002. During the period between March and
December 2002, naturalization proceedings relating to Ander-
son should have been suspended. Instead, Anderson was
granted Costa Rican citizenship on July 3, 2002. That grant of
citizenship was a violation of the extradition treaty. Costa
Rica’s later annulment of that improper grant of citizenship
and suspension of any further naturalization proceedings,
including appeals, was therefore proper. In addition, no terms
of the treaty were violated by Anderson’s removal to the
United States while his citizenship appeal was pending.
[4] No provision of the United States-Costa Rica Extradi-
tion Treaty requires that extradition be postponed until the
20020 UNITED STATES v. ANDERSON
highest court of the country from which extradition is
requested has ruled on that request. Article twelve provides
that “[a] person detained pursuant to the Treaty shall not be
released until the extradition request has been finally decid-
ed.” Id. art. 12. “Surrender,” however, is the term used in the
treaty to describe the physical transfer of a person whose
extradition has been granted, as opposed to simple “release”
from detention. Compare id. art. 13, ¶ 3 (“If the extradition
has been granted, surrender of the person shall take place
within such time as may be prescribed by the law of the
Requested State.”), with id. art. 12 (quoted above).
[5] We conclude that Anderson’s removal from Costa Rica
to Florida on December 4, 2002, complied with the United
States-Costa Rica Extradition Treaty.
2. Outrageous Conduct
Anderson argues that even if his removal did not violate the
terms of the United States-Costa Rica Extradition Treaty, the
United States government’s conduct in removing him during
the pendency of his extradition and citizenship appeals was
outrageous, and the district court therefore lacked personal
jurisdiction over him. The allegedly outrageous conduct
Anderson points to includes the timing of his removal — “in
the dead of the night” while his appeals were still pending —
and the representations made by United States government
agents to Costa Rican authorities which may have misled
Costa Rica into believing Anderson had an unserved prison
sentence in North Carolina. These arguments lack merit.
As stated above, there is no merit to Anderson’s argument
asserting error by reason of his removal to the United States
while his Costa Rican extradition and citizenship appeals
were pending. With regard to the North Carolina conviction,
the Costa Rican trial court’s extradition order makes clear that
extradition was granted only for Anderson’s conduct in con-
nection with AAA. The only mention of the North Carolina
UNITED STATES v. ANDERSON 20021
conviction in the Costa Rican trial judge’s opinion is an order
requiring Anderson’s record of that conviction to be sent to
Costa Rica’s immigration agency.
[6] In sum, nothing in this case amounts to outrageous con-
duct for the purpose of obtaining personal jurisdiction over
Anderson in the United States district court.
B. Money Laundering Convictions
In his reply brief filed in this court, Anderson argues for the
first time that his convictions for conspiracy to commit money
laundering and international money laundering violate the
principles of dual criminality and specialty. He contends these
convictions should be vacated, and at a minimum he should
be resentenced only for his remaining convictions. Anderson
also contends his convictions and sentence relating to the
money laundering counts constitute outrageous conduct war-
ranting outright reversal on all counts.
[7] We first consider whether Anderson has waived these
arguments by failing to raise them in the district court or in
his opening brief filed in this appeal. See Eberle v. City of
Anaheim, 901 F.2d 814, 817-18 (9th Cir. 1990). Issues raised
for the first time in an appellant’s reply brief are generally
deemed waived. Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.
1996) (citing Eberle, 901 F.2d at 818). Moreover, Federal
Rule of Criminal Procedure 12 provides that a party waives
any motion alleging a defect in instituting his prosecution or
in the indictment or information if he fails to raise the alleged
defect in the time set by the court for the filing of pretrial
motions. Fed. R. Crim. P. 12(b)(3)(A)-(B), (e).
A motion to dismiss based on lack of personal jurisdiction
is one that must be made prior to trial to avoid its waiver.
United States v. Smith, 866 F.2d 1092, 1097-98 (9th Cir. 1989).3
3
As previously discussed, the manner and timing of Anderson’s transfer
to the United States did not deprive the district court of jurisdiction over
20022 UNITED STATES v. ANDERSON
“[T]he doctrine of specialty implicates the question of
whether there is personal jurisdiction over the defendant as a
result of the extradition process.” SEC v. Eurobond Exch., 13
F.3d 1334, 1337 (9th Cir. 1994) (citing United States v. Raus-
cher, 119 U.S. 407, 432-33 (1886); United States v. Najohn,
785 F.2d 1420, 1422 (9th Cir. 1986); United States v.
Vreeken, 803 F.2d 1085, 1088-89 (10th Cir. 1986)). The ques-
tion becomes whether Anderson waived his challenge to per-
sonal jurisdiction.
[8] Other circuits have held that a “waiver” under Rule 12
does not require the voluntary or intentional relinquishment of
a known right. See United States v. Clarke, 227 F.3d 874,
880-81 (7th Cir. 2000); United States v. Weathers, 186 F.3d
948, 955 (D.C. Cir. 1999); United States v. Chavez-Valencia,
116 F.3d 127, 130 (5th Cir. 1997). In these circuits, all that
is required for a Rule 12 waiver is a defendant’s failure to
timely assert his right; intent and knowledge are not essential
to the waiver. Clarke, 227 F.3d at 881; Weathers, 186 F.3d at
955; Chavez-Valencia, 116 F.3d at 130.
[9] The Supreme Court and this circuit have impliedly
come to the same conclusion. See Davis v. United States, 411
U.S. 233, 243 (1973) (finding waiver based on defendant’s
simple failure to assert a constitutional claim until habeas pro-
ceedings); United States v. Baramdyka, 95 F.3d 840, 844 (9th
him. This does not, however, foreclose a challenge to personal jurisdiction
based upon principles of dual criminality and specialty. Extradition is the
means by which a requesting country obtains a limited form of personal
jurisdiction over a defendant. See M. Cherif Bassiouni, International
Extradition: United States Law and Practice 515 (4th ed. 2002) (“[T]he
requesting state would not have had in personam jurisdiction over the rela-
tor if not for the requested state’s surrender of that person.”). Specialty is
part of the outline defining the requesting country’s limited personal juris-
diction. If the requesting country oversteps the bounds of specialty, it has
violated the limited personal jurisdiction granted to it by the requested
country.
UNITED STATES v. ANDERSON 20023
Cir. 1996) (concluding specialty argument could be waived as
part of a defendant’s waiver of right to appeal even though the
specialty argument was unknown to the defendant at the time
of his waiver).4
In line with this view, a Rule 12 waiver is more akin to
what has traditionally been called a forfeiture. See United
States v. Olano, 507 U.S. 725, 733 (1993) (stating that “for-
feiture is the failure to make the timely assertion of a right,”
whereas “waiver is the ‘intentional relinquishment or aban-
donment of a known right’ ”); Clarke, 227 F.3d at 881;
Chavez-Valencia, 116 F.3d at 130. Interpreting a Rule 12
waiver as a forfeiture, however, would render the waiver of
“no consequence other than that it would be reviewed for
plain error, the same result as if there were no Rule 12.”
Weathers, 186 F.3d at 955. Such a result most likely was not
intended by the Supreme Court or Congress. Id.
[10] In choosing to treat a Rule 12 “waiver” as a true
waiver, the District of Columbia Circuit specifically relied on
the Supreme Court’s statement in Olano that “ ‘whether the
defendant’s choice [in waiving an argument] must be particu-
larly informed or voluntary . . . depends on the right at
stake.’ ” Weathers, 186 F.3d at 955 (quoting Olano, 507 U.S.
at 733). Specialty is a statutorily created right “not rising to
the level of ‘fundamentality . . . traditionally demanded before
addressing a question of law not argued at the district court
level.’ ” Baramdyka, 95 F.3d at 844 (quoting United States v.
4
Baramdyka can be distinguished from the present case by virtue of the
provision in the United States-Chile Extradition Treaty that provides an
express exception to the principle of specialty where the person extradited
consents to prosecution for an offense committed prior to his extradition.
Michael Abbell, Extradition to and from the United States § 8-2, at 8-7 n.7
(2004). Baramdyka pled guilty to the count he later attempted to challenge
on specialty grounds, and in his plea, he waived his right to appeal the
conviction. Baramdyka, 95 F.3d at 842-43. The United States-Costa Rica
treaty contains no such exception, and Anderson contested the money
laundering charges in a lengthy trial.
20024 UNITED STATES v. ANDERSON
Davis, 954 F.2d 182, 186 (4th Cir. 1992)). Therefore, waiver
of the issue of specialty need not be particularly informed or
voluntary, and the mere failure of a criminal defendant to
raise the issue is enough to “waive” it under Rule 12. We con-
clude that Anderson waived the dual criminality and specialty
issues by failing to raise them in accordance with Rule 12.
[11] Nevertheless, “[f]or good cause, the court may grant
relief from the waiver.” Fed. R. Crim. P. 12(e). The decision
whether to grant relief from a Rule 12 waiver “lies in the dis-
cretion of the district court.” United States v. Tekle, 329 F.3d
1108, 1113 (9th Cir. 2003); see also United States v. Hamm,
786 F.2d 804, 806 (7th Cir. 1986); United States v. Mangieri,
694 F.2d 1270, 1283 (D.C. Cir. 1982). But “ ‘even issues that
are deemed waived [in the district court] under Rule 12 may
be addressed by this court and relief may be granted’ ” where
good cause is shown for the party’s failure to raise the argu-
ment earlier. United States v. Murillo, 288 F.3d 1126, 1135
(9th Cir. 2002) (quoting United States v. Wright, 215 F.3d
1020, 1027 (9th Cir. 2000)) (emphasis added); see also
United States v. Lopez-Lopez, 282 F.3d 1, 9-10 (1st Cir. 2002)
(addressing whether appellant presented good cause in the
appellate court for his failure to make pretrial motion);
Weathers, 186 F.3d at 952-53 (same); United States v. Davis,
663 F.2d 824, 831 (9th Cir. 1981) (same).
[12] If Anderson had attempted and failed in the district
court to obtain relief under Rule 12(e) for his failure to raise
the dual criminality and specialty issues, we would review the
district court’s decision denying relief for abuse of discretion.
Tekle, 329 F.3d at 1113. Moreover, even though in the present
case Anderson did not ask the district court for relief from his
waiver, we still have authority to decide whether there is good
cause to relieve him from that waiver. Murillo, 288 F.3d at
1135. Therefore, we will consider Anderson’s request for
relief from his waiver of the dual criminality and specialty
issues.
UNITED STATES v. ANDERSON 20025
[13] To obtain relief from waiver under Rule 12(e), a party
must present a legitimate explanation for his failure to raise
the issue in a timely manner. Davis, 663 F.2d at 831. Ander-
son explains in his reply brief that he was unable to obtain a
ruling on his extradition from the Costa Rican criminal court
until he received a copy of that court’s decision. A copy of
that decision was contained in the government’s Excerpts of
Record which it filed in this appeal after Anderson had filed
his opening brief. It was only then that Anderson realized he
had potential arguments relating to the principles of dual
criminality and specialty.
Anderson also appeared pro se in the district court. Over a
thousand documents were filed in that proceeding, none of
which included the Costa Rican court’s extradition order.
Even the docket from the Florida district court, where Ander-
son was first presented to a United States magistrate judge,
contains no reference to the Costa Rican extradition order.
Furthermore, the United States government admitted at oral
argument in this appeal that the final extradition decree from
Costa Rica’s highest court has not yet been translated from
Spanish and is missing a page. Indeed, it is unclear whether
the final extradition decree had even been issued prior to the
deadline set by the district court for pretrial motions.
[14] These circumstances constitute good cause to grant
Anderson relief from the waiver of his affirmative defenses of
dual criminality and specialty by not raising those defenses
until he filed his reply brief in this court. Accordingly, we
grant him relief from that waiver.
[15] This grant of relief from the waiver, however, does not
decide the dual criminality and specialty defenses Anderson
presents. Whether Anderson’s convictions for conspiracy to
launder money and international money laundering should be
vacated pursuant to the principles of dual criminality and/or
specialty will have to be decided by the district court.
20026 UNITED STATES v. ANDERSON
“ ‘Dual criminality requires that an accused be extradited
only if the alleged criminal conduct is considered criminal
under the laws of both the surrendering and requesting
nations.’ ” Clarey, 138 F.3d at 765 (quoting Saccoccia, 18
F.3d at 800 n.6). This doctrine is incorporated into the extra-
dition treaty between the United States and Costa Rica as fol-
lows: “An offense shall be a punishable offense if it may be
punished under the laws of both Contracting Parties by depri-
vation of liberty for a maximum period of more than one year
or by any greater punishment.” Extradition Treaty, U.S.-Costa
Rica, art. 2, ¶ 1, S. Treaty Doc. No. 98-17. Anderson alleges
that in Costa Rica, money laundering is not punishable unless
the laundered funds were derived from drug trafficking. No
connection to drug trafficking has been asserted here.
Consistent with Anderson’s argument, the Costa Rican trial
court apparently ruled that dual criminality did not exist for
the money laundering offenses, and it did not approve the
United States’ extradition request as it related to those
charges. However, the Costa Rican court’s actual order,
which we understand is contained in the final extradition
decree, remains to be discovered.
In addition to his argument that the doctrine of dual crimi-
nality precluded his extradition for prosecution on the money
laundering charges, Anderson argues that the doctrine of spe-
cialty was violated. The doctrine of specialty provides that “it
is impermissible to try a defendant other than ‘for the crime[s]
for which he has been extradited.’ ” Benitez, 449 F.3d at 976
(quoting Johnson, 205 U.S. at 316). Anderson asserts that the
United States violated the principle of specialty by charging
him in a second superceding indictment with conspiracy to
launder money and international money laundering after
Costa Rica had held that it would not extradite him for those
charges and after the United States had promised it would not
prosecute him for any offenses other than those approved by
the Costa Rican court.
UNITED STATES v. ANDERSON 20027
Counts 98-104 of the second superceding indictment filed
in the Western District of Washington charge Anderson with
conspiracy to launder money and international money laun-
dering. That indictment does not allege that the funds were in
any way connected with drug trafficking. If the funds were
not so connected, the principle of dual criminality would pre-
clude Anderson’s extradition from Costa Rica for prosecution
of the money laundering charges, and the doctrine of specialty
would preclude his prosecution in the United States for those
offenses.
If the district court concludes that the principles of dual
criminality and/or specialty have been violated as to the
money laundering counts, the proper remedy would be to
vacate Anderson’s convictions on counts 98-104 and resen-
tence him absent those convictions. See United States v.
Khan, 993 F.2d 1368, 1375 (9th Cir. 1993).
IV. CONCLUSION
[16] We affirm Anderson’s convictions on counts 1-2, 4-5,
8-25, 27-33, 35-55, 59, 60-63, 65-66, 68-86, and 88-97, and
we conclude the manner in which Anderson was brought to
trial in the United States did not deprive the district court of
personal jurisdiction over him. We remand to the district court
for a determination whether Anderson’s convictions on the
money laundering counts 98-104 should be vacated due to the
principles of dual criminality and/or specialty, and if so, for
resentencing absent those convictions.
AFFIRMED IN PART and REMANDED IN PART.