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Extradition – Rule of Specialty

State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84, PFR filed 5/25/06
Pro se

Issue/Holding: Extradition from Australia to Wisconsin to face bank fraud and federal tax charges did not preclude, under the Rule of Specialty, Onapolis’s return on an outstanding parole violation warrant, at least where the parole violations included the fraud and tax offenses. (“The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other,” ¶7).

The holding isn’t easily summarized, probably because the issue is technical. The operative principle is this:

¶7        The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other.United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987). The enforcement of the rule is founded primarily on international comity. United States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987). The requesting court must “live up to whatever promises it made in order to obtain extradition” because preservation of the institution of extradition requires the continuing cooperation of the surrendering state. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986). Because the doctrine is grounded in international comity rather than in some right of the defendant, the Rule of Specialty may be waived by the asylum state.  Id.

¶9        In the final analysis then, the inquiry into the Rule of Specialty comes down to whether, under the totality of the circumstances, the court in the requesting state reasonably believes that prosecuting the defendant on particular charges contradicts the surrendering state’s manifest intentions. SeeUnited States  v. Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988). Phrased another way, the question is whether the surrendering state would deem the conduct for which the requesting state actually prosecutes the defendant as interconnected with (as opposed to independent from) the acts for which he was extradited. See id.

The court then adopts the two-part test of U.S. v. Sensi, 879 F.2d 888 (D.C. Cir. 1989): the charge must be 1) “an extradictable offense,” and 2) established by the facts in respect of which extradition was granted, ¶14. The court stresses that the language of this particular treaty explicitly allows extradition for theft by any form of deception, ¶17 and id. n. 3, thus the offense was “extradictable.” And, Onapolis’s detention was based on the same facts as supported the extradition, thus satisfying the 2nd part of the test, ¶19. Left a bit unclear: whether the court is referring to the parole revocation or the fraud-related offenses. However, the court stresses that the revocation was in fact premised on the fraud and tax offenses, ¶¶23-25, something therefore presumably crucial to the holding.

Although in the nature of things, deportation from the U.S. will comprise the bulk of SPD cases there will be the occasional extradition to this country, as Onapolis illustrates. Although his case raises an obscure (to the non-specialist on the Rule of Specialty) issue, it is nonetheless one that does recur. “Rauscher established the doctrine of specialty, 119 U.S. at 412, which provides that an extradited defendant may not be prosecuted ‘for any offense other than that for which the surrendering country agreed to extradite,’” Benitez v. Garcia, 495 F.3d 640 (9th Cir. 2007) (discussing possibility of treaty/extradition-enforced sentencinglimitations [“Agreed-upon sentencing limitations are generally enforceable”], though denying relief on particular facts).

Standard of review articulated:

¶5        A trial court’s order denying a petition for a writ of habeas corpuspresents a mixed question of fact and law. State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 276, 392 N.W.2d 453 (Ct. App. 1986).  Factual determinations will not be reversed unless clearly erroneous. Id. Whether a writ of habeas corpus is available to the party seeking relief is a question of law, which we review independently. Id.see State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999). With rare exception, most published cases considering the issues of specialty and extradition in ahabeas corpus challenge are adjudicated in federal courts and subject to plenary review. See United States v. Saccoccia, 58 F.3d 754, 767 (1st Cir. 1995). Where, as here, we are reviewing the trial court’s interpretation of the principles of specialty, we concur with the position of the State and shall apply a plenary or independent standard of review.

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