Opposition Brief — Van Cauwenberghe v. United States

No. 87-703 | MRC SO wae

§Jn the Supreme Court of the Gnited

OCTOBER TERM, 1987

WILFRIED VAN CAUWENBERGHE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SARA CRISCITELLI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the attachment of certain of petitioner’s

assets by a civil litigant deprived petitioner of the effective

assistance of counsel, where he was represented by his

chosen retained counsel at every stage of his trial and

where he made no complaint at any stage that he needed

those assets to present an effective defense.

2. Whether petitioner is entitled to seek the return of

seized property under Fed. R. Crim. P. 41(e) after he no

longer has a legal ownership interest in that property.

3. Whether petitioner was unlawfully extradited from

Switzerland.

4. Whether the district court properly ordered peti-

tioner to pay restitution to a defrauded victim who was

named in the indictment, specified in the jury instructions,

and whose loss from petitioner’s fraud was clearly

demonstrated at trial.

5. Whether the district court abused its discretion in

conditioning petitioner’s probation on his agreement not

to leave the United States until the court’s restitution order

was Satisfied.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Brauch v. Raiche, 618 F.2d 843 (ist Cir. 1980) .......... 14

Cauwenberghe v. Biard, cert. granted, No. 87-336 (Nov.

OM el) vee ana ceuek ewes’ 10

eR ae RD) oe | 13

Cucuzzella v. Keliikoa, 638 F.2d 105 (9th Cir. 1981) ..... 14

Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985),

cert. denied, 475 U.S. 1016 (1986) .................. 13

Extradition of Russell, In re, 789 F.2d 801 (9th Cir.

aro ead an wy aa de kk ks 13

Government of the United States v. McCaffery, [1984]

ee ed eas cu dks weds was 14

Higdon v. United States, 627 F.2d 893 (9th Cir. 1980) .... 16

Johnson v. Browne, 205 U.S. 309 (1907) ............... 12

oe eee ie A: 13

McGann vy. United States Bd. of Parole, 488 F.2d 39 (3d

Cir. 1973), cert. denied, 416 U.S. 958 (1974) .......... 12

Messina v. United States, 728 F.2d 77 (2d Cir. 1984) .....

Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986), cert.

denied, No. 86-9 (Oct. 14, 1986) .................... 13

Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir.), cert.

Ca Ek) 13

Sovereign News Co. v. United States, 690 F.2d 569 (6th

Cir. 1982), cert. denied, 464 U.S. 814 (1983) .......... 11

United States v. Brodson, 241 F.2d 107 (7th Cir.), cert.

I OUND oo ec ctw ccccsasccs 10

United States v. Francis, 646 F.2d 251 (6th Cir.), cert.

PE, UE COUED ws oc. kc cc cc ccc eeeese 11, 12

United States v. Harvey, 814 F.2d 905 (4th Cir. 1987) .... 9, 10

United States v. Koenig, 813 F.2d 1044 (9th Cir. 1987) ... 16

United States v. Lewis, 759 F.2d 1316 (8th Cir.), cert.

CR Os 10

(111)

IV

Cases — Continued: Page

United States v. Ortiz, 422 U.S. 891 (1975) ............. ]

United States v. Rauscher, 119 U.S. 407 (1886) ......... 12

United States v. Rubio, 404 F.2d 678 (7th Cir. 1968), cert.

ce eR en rae 10

United Statesv. Sleight, 808 F.2d 1012 (3d Cir. 1987) .... 15

United States v. Thier, 801 F.2d 1463 (1986), modified,

Ok ge Fe |, ree 9

United Statesv. Thirion, 813 F.2d 146 (8th Cir. 1987) .... 12

United States v. Whitney, 785 F.2d 824 (9th Cir. 1986) ... 15

United States v. Woods, 775 F.2d 82 (3d Cir. 1985) ...... 15

Wright v. Henkel, 190 U.S. 40 (1903) ................. 13 7

Youakimv. Miller, 425 U.S. 231 (1976) ................ y

Constitution, treaty, statutes and rule:

oC, SS EE cea eGeeeeeukebee de awe 8, 9, 10

Treaty on Extradition, May 14, 1900, United States-

Switzerland, 31 Stat. 1928:

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ne) Ce ee he le ae silo a eho Oka keane 1-2

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§Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-703

WILFRIED VAN CAUWENBERGHE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 6a-24a)

is reported at 814 F.2d 1329. The court’s amendments to

its opinion (Pet. App. la-5a) are reported at 827 F.2d 424.

JURISDICTION

The judgment of the court of appeals was entered on

April 10, 1987, and amended on September 3, 1987. A

petition for rehearing was denied on September 3, 1987.

The petition for a writ of certiorari was filed on October

30, 1987. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the Central District of California, petitioner was convicted

of interstate transportation of a person in the execution of

a scheme to defraud that person, in violation of 18 U.S.C.

2314 (Count One), and wire fraud, in viclation of 18

(1)

2

U.S.C. 1343 (Count Two). The district court sentenced

petitioner to imprisonment for a year and a day, to be

followed by aterm of five years’ probation. The court also

fined petitioner a total of $11,000 and ordered him to pay

restitution of $34,501.26 and $458,373.89, respectively, to

two of his victims. The court of appeals affirmed (Pet.

App. la-24a).

1. Petitioner is a Belgian citizen. Between 1979 and

1981, he participated with two American citizens in a

scheme to defraud a Belgian stockbroker and a Belgian

corporation of $3.6 million (Pet. App. 7a). Petitioner and

his two American accomplices, Alan Blair and Gerald

Bilton, falsely represented that they owned the property

on which an apartment complex near Kansas City,

Missouri was built (Gov't C.A. Br. 4-7, 8-9). In reliance on

that representation, the stockbroker, Roger Biard, lent

petitioner $1 million to finance the renovation and conver-

sion of the property to condominiums. The owners of the

corporation, the Vanden Stock family, agreed to buy the

renovated property for $11.5 million. The family paid $1.2

million of that amount in early installments (id. at 5, 10).

Petitioner used the initial receipts from the Vanden Stock

family to make two payments on the Biard loan, but he

defaulted on the final $800,000 that was due (id. at 6-7).

Meanwhile, the Vanden Stock family became concerned

about its investment and sought to renegotiate the condi-

tions under which it could terminate its purchase agree-

ment; Blair received approximately $1.4 million for enter-

ing into an amended agreement with the Vanden Stock

family (/d. at 10-11). Petitioner and Blair later refused a

demand by the Vanden Stock family that their money be

refunded to them (/d. at 11).

Petitioner, Blair, and Bilton were indicted in October

1984 for wire fraud, interstate transportation of a victim

of fraud, and conspiracy to commit fraud (Pet. App.

7a-8a). Because petitioner resides in Belgium and because

3

Belgium does not extradite its nationals, the Justice

Department initially could not proceed against him (id. at

8a n.1). When the Justice Department later learned that

petitioner would be traveling to Geneva, Switzerland, ona

brief business trip, however, the Department filed a provi-

sional arrest request with Swiss authorities, pursuant to

Article VI of the Treaty on Extradition, May 14, 1900, be-

tween the United States and Switzerland, 31 Stat. 1931.

Swiss authorities arrested petitioner in Geneva on

January 14, 1985, as he stepped off his plane (Pet. App.

8a). In addition, the Swiss authorities seized two stock cer-

tificates that petitioner had been keeping in his Swiss ac-

counts, based on the Justice Department’s representation

that it had probable cause to believe the certificates either

were acquired by means of the fraud or would serve to

prove the offense (/bid.). In March 1985, the Department

of State filed a formal request for petitioner’s extradition

(ibid.).

Petitioner raised a challenge in the Swiss courts both to

his extradition and to the seizure of his stock certificates

(Pet. App. 8a-9a). On September 25, 1985, the Swiss

Federal Tribunal, Switzerland’s highest court, ordered

that petitioner be extradited on the substantive charges of

wire fraud and interstate transportation of a victim of

fraud, and that the stock certificates be transmitted to the

United States; the court declined to approve extradition on

a conspiracy count. The Swiss court ruled as follows (No.

A214/85, at 11-14 (official American Embassy transla-

tion)):

(a) According to the extradition request, the peti-

tioner is charged with having acted in concert with at

least two American nationals to defraud certain

Belgian financiers of a total of $3.6 million by falsely

representing a real estate transaction which he was

obviously in no position to carry out. Such facts con-

Stitute a fraudulent scheme to obtain money or other

property by false pretenses, as defined in Article II,

4

Paragraph (6) of the Treaty. If committed in

Switzerland, they would clearly fall within the scope

of Section 148 of the Swiss Penal Code prohibiting

fraud.

However, based on the statutes or the legal basis of

such charge cited in the request for extradition, the

petitioner claims that the Requesting State does not

intend to punish him for fraud, but merely for having

misused interstate communication facilities in the

commission of such offense. This argument is invalid

in that it fails to take into account the specificities of

United States material criminal law, of the U.S.

federalist system and of the separation of powers be-

tween federal law enforcement authorities and those

of each State making up the Union.

* * . * *

Thus, contrary to the argument expressed by the

petitioner in the appeal, the aim of the two main

Statutes cited in the extradition request is to punish

fraudulent acts as defined by Section 148 of the Penal

Code. The fact that the extraditable person used in-

terstate communication or transportation facilities is

invoked essentially as justification for the application

of federal legislation and the jurisdiction of the

federal authorities. In other words, if the scheme to

defraud had been carried out strictly within the ter-

ritorial boundaries of any given state, the perpetrator

would be subject to the penalties contemplated under

the laws of that state and such act would fall within

the jurisdiction of the state law enforcement

authorities. * * * Thus, the statutes merely set forth

the conditions governing the punishment of the of-

fense in question within the Requesting State, which

in no way affect the obligation of the Requested State

to lend assistance in such matter, so long as the tacts

5

charged are punishable under the laws of both States

as required by Article II of the Treaty.

Petitioner was extradited the next day (Pet. App. 9a).

2. Before the stock certificates arrived in the United

States, petitioner moved in the district court for their

return, pursuant to Fed. R. Crim. P. 41(e) (Pet. App. 9a).

The district court preliminarily denied petitioner’s motion

on October 28, 1985, and instead ordered that the cer-

tificates be held “pending litigation of this matter or fur-

ther order of the Court” (Nov. 12, 1985 Tr. 20; Pet. App.

9a). The certificates arrived in the United States sometime

between October 28, 1985, and November 12, 1985, and

were deposited with the clerk of the court (Nov. 12, 1985

Tr. 11).

On November 12, 1985, the court held another hearing

on petitioner’s Rule 41(e) motion (Nov. 12, 1985 Tr.

11-12). At that time, the court was informed that a civil

suit had been filed against petitioner in the district court,

that the plaintiffs in that civil action were seeking a writ of

attachment against the Swiss certificates, and that their re-

quest for a writ of attachment was scheduled for argument

before a magistrate later that afternoon (id. at 14, 16).

Petitioner agreed that the outcome of the attachment pro-

ceeding was relevant to the court’s decision on the Rule

41(e) motion, because he was “not asking [the court] to

order that it go back to [him]” (id. at 24; see also id. at

25-26), and because his Rule 41(e) motion would no longer

matter if a writ of attachment was issued in the civil case

(id. at 28). The district court accordingly denied the mo-

tion pending a decision in the civil action on the applica-

tion for a writ of attachment (/d. at 27, 35-36). Later that

day, the magistrate assigned to the civil proceeding entered

an order attaching the seized assets, which were then

deposited in the registry of the court in connection with

the civil case.

3. The case against petitioner, Blair, and Bilton went

to trial on November 19, 1985 (Pet. App. 9a). The jury

6

found all three defendants guilty on the two substantive

counts, and the district court entered judgment for the

government on January 22, 1986 (id. at 10a). At that time,

the court sentenced petitioner to a $10,000 fine and im-

prisonment for a year and a day on the first count,

crediting him for the 373 days that he had already served

in pretrial confinement, and to a $1,000 fine and a five-

year probation term on the second count (ibid.). As condi-

tions of probation on the second count, the court ordered

petitioner (1) to pay restitution of $34,501.26 to Biard and

$458,373.89 to Roger Vanden Stock, a member of the

Vanden Stock family; (2) not to engage in any real estate

transactions, except to liquidate his property, or any wire

transfers, except to his family; and (3) not to leave the

United States until the restitution had been paid (ibid.).

Finally, on motion by the government and petitioner, the

district court released the stock certificates into the joint

custody of the government and petitioner’s counsel for

purposes of liquidation and ordered that the excess above

the amount due for restitution be redeposited with the

registry of the court for attachment by the parties in the

related civil action (/d. at 11).

4. The court of appeals affirmed and remanded for

modification of the terms of probation (Pet. App.

la-24a). Initially, it rejected petitioner’s argument that his

extradition was improper because “the Treaty does not

identify wire fraud and interstate transportation of a vic-

tim of fraud as extraditable offenses” (id. at 12a). The

court noted that, while “[t]he Treaty does not expressly

name these specific offenses,” it does “include{] ‘obtaining

money or other property by false pretenses [and] receiving

money * * * knowing the same to have been * * *

fraudulently obtained’ ” (/bid. (quoting Treaty, art. II,

para. 6, 31 Stat. 1930)). Applying well-settled principles of

extradition law, the court of appeals deferred to the deci-

ss

7

sion of Switzeriand, the surrendering country, that the of-

fenses charged in the indictment are offenses for which ex-

tradition is authorized by the Treaty (Pet. App. 12a-14a).

The court next rejected petitioner’s argument that the

district court erred in denying his motion under Fed. R.

Crim. P. 4l(e) for the return of the property that was

seized from his Swiss accounts. The court noted that “the

district court found, and [petitioner] admits, that he ir-

revocably transferred full title to the property to his own

attorney and counsel for the United States, acting jointly,

to satisfy his restitution condition” (Pet. App. 21a-22a).

Moreover, it found that this transfer was made voluntarily

(id. at 3a). The court noted that petitioner had “sought

and willingly complied with the [transfer] order” in order

that he might be permitted to leave the country and return

to Belgium (ibid.). Accordingly, it concluded that,

“fajlthough [petitioner] remains the beneficial owner of

the assests and any proceeds derived from their sale, he

has not demonstrated entitlement to lawful possession of

the assets [and] [rjeturn of the assets under Rule 41(e) is

therefore inappropriate” (id. at 4a). The court declined to

“express [a] view on whether the seizure was illegal”

(ibid.), reasoning that “resolution of that question is un-

necessary to the disposition of his Rule 41(e) challenge on

appeal” (id. at 4a-Sa).

The court also rejected petitioner’s argument that he

should not have been required to make restitution to

Roger Vanden Stock (Pet. App. 23a). It noted that “the

entire scheme to defraud Biard and the Vanden Stock

family of 3.6 million dollars was alleged in the indictment

counts for which [petitioner] was convicted” and that,

“fb]y specifying the total amount alleged to have been

fraudulently obtained in the indictment, ‘the indictment

gave [petitioner] fair notice of the damages the govern-

ment intended to prove he caused his victims to suffer and

placed a ceiling above which a restitution order would

have been improper’ ” (ibid. (citation omitted)). The court

8

thus concluded that “[i]t was not improper * * * to impose

restitution for both Biard and Vanden Stock” (ibid.).

Finally, the court of appeals remanded the case to the

district court with instructions to consider modifying the

conditions of petitioner’s probation (Pet. App. 24a). The

court noted that, in response to an earlier remand order,

“the district court [had] found that [petitioner’s} continu-

ing presence in this country no longer serves any proba-

tionary purpose” (ibid. (footnote omitted)). It thus con-

cluded that petitioner’s “probation may be modified to

allow him to return to Belgium” (ibid.).

ARGUMENT

1. Petitioner initially contends (Pet. 10-16) that the

seizure and retention of his stock certificates violated his

Sixth Amendment right to effective assistance of counsel,

because it allegedly interfered with his ability to defend

against the criminal charges for which he was indicted.

This contention has no merit and does not warrant review

by this Court.

As a preliminary point, petitioner did not press this

issaé in the same fashion and on the same grounds as he

has done in this Court. In seeking return of the stock cer-

Wels tificates in the district court, petitioner did not suggest,

other than in passing (R. 277uu, 277yy), that he needed the

assets for his defense; counsel for petitioner subsequently

disavowed that he was asking that the stock certificates be

returned to petitioner (Nov. 12, 1985 Tr. 24-27).

Moreover, petitioner did not complain during trial or in

his motion for a new trial that the seizure and detention of

his assets impaired his ability to present a defense. In the

Ninth Circuit, he gave the issue only the slightest atten-

tion; his total discussion of the issue was contained in the

third paragraph of a footnote in his brief. See Pet. C.A.

Br. 27-28 n.40. And even then, petitioner did not suggest

‘Ww thi

Co ucts

9

that he had been denied the effective assistance of counsel,

but rather that the government’s alleged effort to deny him

the effective assistance of counsel had failed because

counsel had represented him in spite of the retention of the

stock certificates. Nowhere in his brief did petitioner sug-

gest that the retention of the certificates made it impossi-

ble to present his defense effectively. The Sixth Amend-

ment claim that petitioner now seeks to raise is thus very

different in character.' This Court should not consider

what amounts to a new issue that petitioner has failed to

litigate below. See Youakim v. Miller, 425 U.S. 231,

234-235 (1976); United States v. Ortiz, 422 U.S. 891, 898

(1975).

Even assuming that the Sixth Amendment question is

properly before the Court, the petitioner errs in suggesting

(Pet. 10-11) that the implicit approval of the seizure and

retention of assets by the court below conflicts with the

decisions of the Fourth and Fifth Circuits in United States

v. Harvey, 814 F.2d 905 (4th Cir. 1987), and United States

v. Thier, 801 F.2d 1463 (1986), modified, 809 F.2d 249

(Sth Cir. 1987), respectively. Harvey and Thier are

attorney-fee forfeiture cases in which the government, by

asserting a priority claim over a defendant’s assets, re-

duced through state action the defendant’s access to funds

for his defense.? In this case, by contrast, although the

initial Swiss seizure followed a government request, the

court retained the assets because private parties had

sought to attach them to protect any future judgment they

' For example, this is the first time that petitioner has asserted (Pet.

15 n.10) that he was unable to depose a defense witness because of in-

sufficient funds.

2 As petitioner acknowledges, the Harvey case is now pending

before the en banc Fourth Circuit, which granted the government’s

petition for en banc review. The panel opinion in Harvey is therefore

of no precedential value even within the Fourth Circuit.

10

might obtain against petitioner in their parallel civil ac-

tion. Nothing in Harvey or Thier suggests that the Sixth

Amendment restricts the ability of private parties to attach

assets of a criminal defendant against whom the private

parties are litigating.

In any event, the record in this case makes it quite clear

that petitioner has received the effective assistance of

counsel and that no Sixth Amendment violation has oc-

curred. Petitioner has been represented by counsel of his

choice, lawyers from the law firm of Williams & Connolly,

from the beginning of pretrial proceedings through the

filing of the petition for a writ of certiorari in this Court.

There is no basis in the record for suggesting that counsel’s

effectiveness has been diminished by the seizure and deten-

tion of the stock certificates. Thus, while a timely Sixth

Amendment claim arguably would not be moot (United

States v. Harvey, 814 F.2d at 929 n.11), it clearly would

fail on the merits. See United States v. Lewis, 759 F.2d

1316, 1327 (8th Cir.), cert. denied, 474 U.S. 994 (1985);

United States v. Rubio, 404 F.2d 678, 681 (7th Cir. 1968),

cert. denied, 394 U.S. 993 (1969); United States v. Brod-

son, 241 F.2d 107 (7th Cir.), cert. denied, 354 U.S. 911

(1957).

2. Petitioner next contends (Pet. 16-21) that the court

of appeals erred in finding that he waived his claim under

Rule 41(e) for return of property by ceding ownership of

the stock certificates to his attorneys. This contention also

has no merit.

Rule 41(e) (emphasis added) states that “[a] person ag-

* The petition need not be held pending the disposition of Van

Cauwenberghe v. Biard, cert. granted, No. 87-336 (Nov. 9, 1987).

That case, which arises out of the separate civil action in which peti-

lioner is involved, presents the questions whether an order denying a

motion to dismiss on grounds of forum non conveniens is an im-

mediately appealable order, and whether an order denying an ex-

tradited person’s claim of absolute immunity from civil process is im-

mediately appealable. The resolution of those questions would not

affect the proper disposition of this case.

11

grieved by an unlawful search and seizure may move the

district court for the district in which property was seized

for the return of the property on the ground that such per-

son is entitled to lawful possession of the property which

was illegally seized.” As noted by the court of appeals

(Pet. App. 3a-4a), however, petitioner is not entitled to

lawful possession of the property that he alleges was il-

legally seized; he ceded his ownership interest in the cer-

tificates to his attorneys in order that he might satisfy the

terms of his probation and be allowed an early return to

Belgium. Thus, under the plain terms of Rule 41(e), peti-

tioner is not entitled to have the stock certificates returned

to him, whether or not he was aggrieved by an unlawful

search and seizure or other constitutional deprivation.

Rule 41(e) does not entitle a person to have assets returned

to him when the person is not lawfully entitled to possess

those assets. See Sovereign News Co. v. United States, 690

F.2d 569, 577 (6th Cir. 1982), cert. denied, 464 U.S. 814

(1983); United States v. Francis, 646 F.2d 251, 263 n.8 (6th

Cir.), cert. denied, 454 U.S. 1082 (1981).

Moreover, contrary to petitioner’s argument (Pet.

16-21), the court of appeals followed the correct path in

declining to decide whether the initial seizure of the prop-

erty was lawful. It may be, as petitioner asserts (Pet.

16-18), that any person with a legally cognizable interest in

private property may prove in a civil action that property

has been unconstitutionally seized and thereby obtain

return of that property (or damages for its unlawful

seizure). It may also be, as petitioner further asserts (Pet.

18-21), that a criminal defendant need not be entitled to

lawful possession of property in order to prove that it was

unconstitutionally seized and therefore should be excluded

from evidence in his criminal trial. But this is not a civil ac-

tion by petitioner for return of the property or for

damages, and the government has not sought to introduce

the stock certificates as evidence in this criminal case. Peti-

tioner has merely sought to have the government return

12

the stock certificates to him pursuant to Rule 41(e). En-

titlement to lawful possession of the property is a

necessary condition for issuance of such an order under

Rule 41(e), and the government has opposed the return of

the property under that rule. Since petitioner is not enti-

tled to lawful possession of the property, he is not entitled

under Rule 41(e) to the relief he seeks. Accordingly, the

court of appeals was correct in holding that resolution of

the legality of the initial seizure was “unnecessary to the

disposition of his Rule 41(e) challenge on appeal” (Pet.

App. 5a). Accord United States v. Francis, 646 F.2d at 263

n.8.

3. Petitioner next claims (Pet. 22-27) that the court of

appeals created a conflict among the circuits by holding

that he could not raise the illegality of his extradition as a

defense in his criminal trial. This claim misstates the con-

clusion of the court below.

The court of appeals did not hold that petitioner may

not raise the illegality of his extradition as a defense in his

criminal trial. Rather, it held that deference was due to the

determination by Switzerland, the asylum country, that

petitioner was charged with an offense covered by the

Swiss-American extradition treaty. That holding is plainly

correct. See Johnson v. Browne, 205 U.S. 309, 316 (1907);

McGann vy. United States Bd. of Parole, 488 F.2d 39, 40

(3d Cir. 1973), cert. denied, 416 U.S. 958 (1974).

None of the decisions that petitioner cites (Pet. 22-23)

are to the contrary. Those decisions hold that, under the

rule of “specialty,” an accused may be tried only for the

offense for which he was delivered up by the asylum coun-

try. See, e.g., United States v. Rauscher, 119 U.S. 407,

422-423 (1886); United States v. Thirion, 813 F.2d 146,

151 (8th Cir. 1987). That principle is not in any way of- -

13

fended when, as here, a defendant is tried on the precise

charges that were presented to the asylum country.*

Even without according any deference to the decision of

the Swiss Federal Tribunal, it is clear that petitioner’s ex-

tradition did not violate the treaty between Switzerland

and the United States and therefore was not illegal. Article

Il, paragraph 6, of the Treaty permits extradition for ob-

taining money or other property by false pretenses (31

Stat. 1930; Pet. App. 48a). The indictment in the instant

case, a copy of which was made available to the Swiss

Federal Tribunal (along with the operative statutes of the

United States), charges that petitioner obtained money

and property by wire fraud and interstate transportation

of a victim of fraud. In other words, the indictment alleges

the kind of offense that is made unlawful in Switzerland

and that is specifically included in the extradition treaty;

the federal crime parallels the Swiss offense except for an

additional element required only in federal prose-

cutions—the nexus with interstate commerce. But the

absence of direct equivalency does not render the extradi-

tion unlawful. See Collins v. Loisel, 259 U.S. 309, 312

(1922); Kelly v. Griffin, 241 U.S. 6, 14 (1916); Wright v.

Henkel, 190 U.S. 40, 58 (1903); In re Extradition of

Russell, 789 F.2d 801, 803-804 (9th Cir. 1986); Quinn v.

Robinson, 783 F.2d 776, 783 (9th Cir. 1986), cert. denied,

No. 86-9 (Oct. 14, 1986); Demjanjuk v. Petrovsky, 776

F.2d 571, 579 (6th Cir. 1985), cert. denied, 475 U.S. 1016

4 Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir.), cert. dismissed, 414

U.S. 884 (1973), does not conflict with the decision below; the Shapiro

case involved a request to extradite an individual from this country to

another country, rather than vice versa. As a tribunal of the asylum

country, the court in Shapiro therefore engaged in a close analysis of

the question whether the offense charged in the foreign state was

covered by the pertinent extradition treaty. That analysis would not

have been necessary if this country had been the requesting country

and a determination of extraditability had been made by a court of the

asylum country.

14

(1986); Messina v. United States, 728 F.2d 77, 79 (2d Cir.

1984); Cucuzzella v. Keliikoa, 638 F.2d 105, 108 (9th Cir.

1981); Brauch v. Raiche, 618 F.2d 843, 850-851 (ist Cir.

1980).°

4. Petitioner next contends (Pet. 27-29) that the court

of appeals erred in approving the award of restitution to

Roger Vanden Stock. But that contention is based upon

the false premise that Vanden Stock was simply a witness

in this criminal case. In fact, the indictment clearly charges

that Vanden Stock was a victim of fraud by petitioner.

Thus, Count One of the indictment, paragraph 5, alleges

that petitioner and his co-defendants “devised and in-

tended to devise and employ a scheme and artifice to

defraud Roger Biard and the Vanden Stock family

(hereinafter victim investors) of approximately $3.6

million by means of false and fraudulent pretenses,

representations and promises * * *.” Paragraphs 6, 7, and

10 of Count One restate the total sum that was obtained

from the “victim investors.” Paragraph 8 sets forth the

various misrepresentations made by petitioner; it includes

allegations of misrepresentations to the Vanden Stock

family. And the final jury instructions required the jury to

find, for Count One, “each of the following elements

beyond a reasonable doubt,” including “that the defendant

knowingly and willfully devised, intended to devise, or

> As petitioner asserts (Pet. 25-26), the Attorney General and the

Secretary of State in 1933 were of the view that direct equivalency was

required and, accordingly, that mail fraud and wire fraud were not ex-

traditable offenses. But that view is no longer the official position of

the government of either the United States or Switzerland. See

Government of the United States v. McCaffery, [1984] 1 W.L.R. 867

(United States appealed successfully to the British House of Lords

from magistrate order denying extradition for mail fraud on the

ground that England has no equivalent jurisdictional element); Swiss

Federal Tribunal, No. A 214/85 (Sept. 25, 1985), at 11-14 (the fact

that United States has a federal system and includes an interstate com-

merce element in the definition of its crime out of respect for jurisdic-

tional boundaries does not change equivalency of offenses).

15

joined a scheme or artifice to defraud or to obtain money

by false pretenses or representations, specifically a scheme

or artifice to defraud Roger Biard and the Vanden Stock

family of approximately $3.6 million” (Tr. 3477 (emphasis

added)).® Thus, the indictment and the jury instructions,

as well as the evidence presented at trial, identified the

members of the Vanden Stock family as defrauded vic-

tims, and petitioner clearly was convicted of defrauding

them. Under these circumstances, it was entirely proper

for the court to order that restitution be paid to Roger

Vanden Stock. See United States v. Sleight, 808 F.2d 1012,

1018-1019 (3d Cir. 1987); United States v. Woods, 775

F.2d 82, 88 (3d Cir. 1985); United States v. Whitney, 785

F.2d 824, 826 (9th Cir. 1986).

5. Finally, petitioner claims (Pet. 29-30) that the

district court lacked the authority to order him to remain

in the United States until the restitution award was paid.

The district court initially found that, because petitioner

had transferred the stock certificates to his attorney and

the government for purposes of paying the restitution

judgment, “no further probationary purpose is to be

served by retaining [petitioner] in the United States” (Pet.

App. 37a-38a). That finding led the court of appeals to re-

mand the case to the district court to consider modifying

the terms of probation (id. at 24a). Petitioner advises that

the district court on remand has made a new finding that

the value of the stock certificates could decline before the

award is satisfied and that petitioner’s continued presence

in the United States is therefore necessary to ensure final

compliance with the restitution order (see Pet. 9).

6 Asto Count Two, the court repeated the requirement that the jury

find a scheme to defraud both Biard and Vanden Stock (Tr. 3482).

16

The court of appeals apparently has not had occasion to

consider the most recent order by the district court. Peti-

tioner therefore is in effect asking this Court to review the

district court’s order on remand without the benefit of

court of appeals review of that order. Petitioner has given

no reason to justify such an unusual exercise of this

Court’s certiorari jurisdiction and, for that reason alone,

review of this issue is unwarranted.

In any event, even if the district court’s order were prop-

erly before the Court, it would be lawful. The requirement

that petitioner remain in this country until the restitution

is paid is reasonably related to a legitimate purpose of the

order of probation and is therefore within the sentencing

court’s discretion. United States v. Koenig, 813 F.2d 1044,

1047 (9th Cir. 1987); Higdon v. United States, 627 F.2d

893, 897 (9th Cir. 1980). Since the probation term is less

onerous than the term of imprisonment the court could

have imposed in its place, and since under a sentence of

imprisonment petitioner could not have left the United

States, it is difficult to ui. .erstand how the requirement

that petitioner remain in the United States as a condition

of his probation could constitute a cruel and unusual

punishment or a violation of due process.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SARA CRISCITELLI

Attorneys

DECEMBER 1987

US GOVERNMENT PRINTING OFFICE 1967— 202 037/80204