United States v. Keesee

1996 WL 33468771 (9th Cir.)

For opinion see 1997 WL 453705

United States Court of Appeals, Ninth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

Bobby Joe KEESEE, Defendant-Appellant.

No. 96-50388.

November 12, 1996.

Appeal from the United States District Court for the Central District of California

Appellee's Brief

Nora M. Manella, United States Attorney, Richard E. Drooyan, Assistant United States Attorney, Chief, Criminal Division, George B. Newhouse, Jr., Assistant United States Attorney, Deputy Chief, Public Corruption and Government Fraud Section, Daniel S. Goodman, Assistant United States Attorney, Public Corruption and Government, Fraud Section, 1300 United States Courthouse, 312 North Spring Street, Los Angeles, California 90012, Telephone: (213) 894-2391/4667, Attorneys for Plaintiff-Appellee, United States of America.

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... ii

REFERENCES TO CLERK'S RECORD ... v

I. ISSUE PRESENTED ... 1

II. STATEMENT OF THE CASE ... 1

A. NATURE OF THE CASE, COURSE OF THE PROCEEDINGS, AND DISPOSITION IN THE COURT BELOW ... 1

B. JURISDICTION, TIMELINESS, AND BAIL STATUS ... 2

C. STATEMENT OF FACTS ... 5

III. ARGUMENT ... 7

A. STANDARD OF REVIEW ... 7

B. THE DOCTRINE OF SPECIALTY EMBODIED IN THE U.S.-GERMAN EXTRADITION TREATY DOES NOT LIMIT THE USE OF RELEVANT CONDUCT IN DETERMINING DEFENDANT'S SENTENCE UNDER THE GUIDELINES ... 8

1. The Doctrine of Specialty and its Application to this Case ... 9

2. The Doctrine of Specialty Does Not Limit the Sentence that May Be Imposed on the Charges on Which Defendant Was Extradited ... 13

3. Additional Counts of the Same Violation, Committed in the Same Manner as the Counts on Which a Defendant Is Extradited. Are Properly Charged and, therefore, Are Properly Considered at Sentencing ... 23

IV. CONCLUSION ... 30

STATEMENT OF RELATED CASES ... 31

CERTIFICATE OF COMPLIANCE ... 32

*ii TABLE OF AUTHORITIES

Cases

Alvarez-Mendez v. Stock, 941 F.2d 956 (9th Cir. 1991), cert. denied, 506 U.S. 842 (1992) ... 21

Berman v. United States, 302 U.S. 211 (1937) ... 4

Fiocconi v. Attorney General, 462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059 (1972) ... 24, 25, 26

Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert. denied, 479 U.S. 889 (1986) ... 21

Leighnor v. Turner, 884 F.2d 385 (8th Cir. 1989) ... 18, 19, 22, 23

Lemke v. United States, 346 U.S. 325 (1953) ... 4

McMillan v. Pennsylvania, 477 U.S. 79 (1986) ... 15, 16

Pinkerton v. United States, 328 U.S. 640 (1946) ... 20

The Paquete Habana, 175 U.S. 677 (1900) ... 21

United States v. Andonian, 29 F.3d 1432 (9th Cir. 1994), cert. denied, 115 S. Ct. 938 (1995) ... passim

United States v. Cuevas, 847 F.2d 1417 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989) ... 28

United States v. Davis, 954 F.2d 182 (4th Cir. 1992) ... 17, 18, 23

United States v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc) ... 8

United States v. Gallo-Chamorro, 48 F.3d 502 (11th Cir. 1995) ... 20

*iii United States v. Hoster, 988 F.2d 1374 (5th Cir. 1993) ... 14

United States v. Khan, 993 F.2d 1368 (9th Cir. 1993) ... 27, 28, 29

United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984) ... 7

United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962) ... 25

United States v. Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995) ... 17

United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995), cert. denied, 116 S. Ct. 1322 (1996) ... 19, 20, 23

United States v. Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987), cert. denied, 484 U.S. 1042 (1988) ... 9

Witte v. United States, 115 S. Ct. 2199 (1995) ... passim

Statutes

Title 18, United States Code

Section 912 ... 5, 26, 28

Section 1001 ... 5, 6, 26, 28

Section 1343 ... 5, 26, 28

Section 3231 ... 4

Section 3742(a) ... 4

Title 28, United States Code

Section 1291 ... 4

*iv Rules

Federal Rule of Appellate Procedure 4(b) ... 4

United States Sentencing Guidelines

Section 1B1.3 ... 8

Section 2F1.1 ... 8, 9

Other Authority

Treaty Concerning Extradition, June 20, 1978, United States--Federal Republic of Germany, 32 U.S.T. 1485, T.I.A.S. 9785 ... 10

Restatement (Third) of Foreign Relations Law of the United States ... 20, 21

*v REFERENCES TO CLERK'S RECORD

*1 I

ISSUE PRESENTED

Whether, in sentencing defendant on counts on which he was extradited from Germany, the district court's consideration of similar offenses as "relevant conduct" under the Sentencing Guidelines violated the doctrine of specialty as described in the U.S.-German extradition treaty.

STATEMENT OF THE CASE

A. NATURE OF THE CASE, COURSE OF THE PROCEEDINGS, AND DISPOSITION IN THE COURT BELOW

Defendant-appellant Bobby Joe Keesee ("defendant") appeals his sentence imposed by the Honorable John G. Davies, United States District Judge, pursuant to the United States Sentencing Guidelines ("Guidelines" or "USSG") following his guilty plea. *2 Defendant contends that the district court's inclusion of certain fraudulent activity as "relevant conduct" under the

Guidelines violated the "doctrine of specialty." The doctrine of specialty is incorporated in the U.S.-German extradition treaty and provides that a nation that has obtained an individual's extradition is precluded from prosecuting that individual for any offense committed prior to the extradition, other than those offenses for which the surrendering state agreed to extradite. [FN1]

FN1. In the U.S.-German Extradition Treaty and some of the cases discussed below, the "doctrine of specialty" is referred to as the "rule of specialty." Because this difference in terminology has no effect on the legal analysis of defendant's claim, and in order to avoid confusion by the reader, the government uses the term "doctrine of specialty" exclusively, even where the other term is used in the authority under discussion.

The activity that the district court included as "relevant conduct" at sentencing was charged in various counts to which defendant did not plead guilty, which were dismissed at the conclusion of the sentencing hearing. Germany did not explicitly order extradition on the dismissed counts. The dismissed counts, however, stemmed from the same fraudulent scheme as the counts of conviction and were charged under the same statutes as the counts to which defendant pled guilty.

Defendant was extradited to the United States from Germany in or about August 1994. (See AOB 8; ER 52-53). [FN2] On *3 December 22, 1994, the government filed a 22-count indictment against defendant. (CR 1; ER 1-16). The charges in the indictment related to a fraudulent scheme in which defendant impersonated an official of the Federal Emergency Management Agency ("FEMA"), established a phony FEMA office in Long Beach, California, and set in motion a scheme to defraud various businesses by inducing those businesses to provide him with goods and services based on the credit of the United States government. (ER 1- 16).

FN2. "AOB" refers to Defendant/Appellant's Opening Brief. "ER" refers to the Excerpts of Record filed by defendant. "SER" refers to the Appellee's Supplemental Excerpts of Record filed herewith. "Under Seal SER" refers to the Appellee's Under Seal Supplemental Excerpts of Record filed herewith under seal, the manner in which the documents were filed in the district court. "RT" refers to the Reporter's Transcript of Proceedings for the indicated date. All of the aforementioned citations are followed by the

applicable page numberss. "CR" refers to the Clerk's Record in this case, and is followed by the applicable document control numberss. "PSR" refers to the presentence report, a copy of which was filed by defendant under seal, and is followed by the applicable paragraph numbers. In citations to pleadings filed in the district court, the term "Gvt." means "Government's" and the term "Sent." means "Sentencing."

On November 20, 1995, defendant pled not guilty to the indictment. (CR 12). On January 6, 1996, defendant changed his plea to guilty on four counts of the indictment: two counts of wire fraud, one count of impersonating a federal officer, and one count of making a false statement within the jurisdiction of the United States. (CR 15). Defendant pled guilty pursuant to a plea agreement. (RT 1/4/96: 7-11 [SER 6-10]; CR 14-15; ER 17-24).

The district court held sentencing hearings on June 20, 1996, and June 26, 1996. (CR 31, 32). On the latter date, the *4 district court sentenced Keesee to 46 months imprisonment. (CR 32; ER 62-63). [FN3] The district court also ordered defendant to serve three years supervised release following his release from imprisonment, to pay restitution totalling $12,353.50, and to pay a special assessment of $200. (CR 32; ER 62-64).

FN3. This sentence was ordered to run concurrent with the 32 months

remaining on a prior sentence imposed on defendant in the United States District Court for the District of New Jersey, arising out of convictions on an indictment filed in that district and on a second indictment filed in the District of the District of Columbia. (RT 6/26/96: 92-94 [SER 73-75]; CR 32; ER 62-63; PSR 104-05; see also Gvt. Sent. Position, p. 5 n.3 [Under Seal SER 2]). References in this brief to "the indictment" pertain to the indictment filed in the Central District of California.

B. JURISDICTION, TIMELINESS, AND BAIL STATUS

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The judgment imposed on June 26, 1996 (CR 32), was a final, appealable order. See Berman v. United States, 302 U.S. 211, 212 (1937). This court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Defendant filed his notice of appeal on July 1, 1996. (CR 33; ER 65). This notice of appeal was timely under Federal Rule of Appellate Procedure 4(b) because it was filed within ten days after the entry of judgment, [FN4] which took place on July 2, 1996. (CR 32).

FN4. Although the notice of appeal was filed prior to the entry of judgment, rather than after, that variance from Rule 4(b) does not divest this court of jurisdiction. See Lemke v. United States, 346 U.S.

325, 326 (1953).

*5 Defendant is currently in federal custody serving his sentence of imprisonment. (See AOB 4.)

C. STATEMENT OF FACTS

The 22-count indictment charged defendant with various counts of wire fraud in violation of 18 U.S.C. § 1343, impersonating a federal officer in violation of 18 U.S.C. § 912, and making a false statement within the jurisdiction of the United States in violation of 18 U.S.C. § 1001. The indictment alleged a scheme in which defendant, acting under the pretense that he was an officer or employee of FEMA and using fraudulent government forms, attempted to obtain various goods and services free of charge, including: office space, telephone service, and miscellaneous office services; secretarial services; a United States flag; a facsimile machine; a camcorder and accessories; a quantity of gold wire; a new Chevrolet Corsica automobile; a Beechcraft King Air 200 airplane; flight training services; and flight charts for Latin America.

Following his extradition from Germany, defendant pled guilty to four counts of the indictment relating to his attempt to obtain a quantity of gold wire from a New Jersey company named "Sure Pure Chemetals" by impersonating a federal official. [FN5] Two of these counts (counts one and two) charged wire fraud in violation of 18 U.S.C. § 1343, one count (count *6 six) charged impersonation of a federal officer in violation of 18 U.S.C. § 912, and the final count (count eighteen) charged making a false statement within the jurisdiction of the United States in violation of 18 U.S.C. § 1001. Defendant did not contest below, and does not now contest, that he was lawfully extradited from Germany on each of the four counts to which he pled guilty. Nor has defendant disputed that the gold wire that he attempted to obtain was valued at $32,000, and that he was properly assessed with that amount.

FN5. The indictment used the name "Superpure Chemicals." The correct name of the business that defendant attempted to defraud is "Sure Pure Chemetals." (See RT 1/4/96: 13-15 [SER 11-13]; Gvt. Sent. Response, p. 1 n.2 [Under Seal SER 10]).

Defendant did argue at sentencing, however, that under the doctrine of specialty his conduct apart from the attempt to obtain gold wire could not be considered for sentencing purposes. (E.g., Defendant's Sent. Position, p. 11 [Under Seal SER 8]; RT 6/26/96: 43 [SER 24]). The government conceded that the German extradition order did not provide for defendant's extradition on any charges in the indictment other than those relating to the attempt to obtain gold wire from Sure Pure. (Gvt. Sent. Response, p. 1 [Under Seal SER 10]). The government argued that the terms of the extradition order did not prevent the use of relevant conduct from the other counts, however, for two reasons: first, because the doctrine of specialty did not limit the information that could be considered in sentencing defendant for the crimes for which he was extradited, and second, because the doctrine of specialty did not preclude defendant's prosecution for offenses of the same nature and committed in the same manner as those on which he was *7 extradited. (Gvt. Sent. Response, pp. 1-2 [Under Seal SER 10-11]).

The district court rejected defendant's position and went on to consider the relevant conduct from the other counts. (See RT 6/26/96: 42-47 [SER 23-28]). The district court ruled: (1) that the extradition treaty allowed the court to consider relevant conduct at sentencing (although the district court cited a paragraph of the treaty that the government had argued was inapplicable), and (2) that defendant's case was indistinguishable from the case on which the government relied for the proposition that the doctrine of specialty did not preclude defendant's prosecution for offenses of the same nature and committed in the same manner as those for which he was extradited. (See RT 6/26/96: 43- 47 [SER 24-28]). Defendant's sentence was therefore increased due to relevant conduct. (See RT 6/26/96: 50, 82 [SER 31-63]).

III

ARGUMENT

THE DISTRICT COURT'S USE OF RELEVANT CONDUCT AT SENTENCING DID NOT VIOLATE THE

DOCTRINE OF SPECIALTY

A. STANDARD OF REVIEW

The district court's interpretation of the operation of the doctrine of specialty under the treaty was a legal determination and hence is reviewed de novo. See United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994), cert. denied, 115 S. Ct. 938 (1995); *8United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). The legality of a sentence is also reviewed de novo. United States v. Fine, 975 F.2d 596, 599 (9th Cir. 1992) (en banc).

B. THE DOCTRINE OF SPECIALTY EMBODIED IN THE U.S.-GERMAN EXTRADITION TREATY DOES NOT LIMIT THE USE OF RELEVANT CONDUCT IN DETERMINING DEFENDANT'S SENTENCE UNDER THE GUIDELINES

Pursuant to the "relevant conduct" provision of the Guidelines, USSG §1B1.3, a fraud defendant's Guidelines offense level is calculated based on all conduct that was part of the scheme, "even though the defendant was not convicted of crimes based upon the related conduct." Fine, 975 F.2d at 600; see also USSG §1B1.3(a)(2); USSG §1B1.3, comment. (n.2); USSG §2F1.1, comment. (n.6) ("The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level, regardless of the number of counts of conviction."). Relevant conduct is counted even if it derives from counts that the government agreed to dismiss as part of a plea agreement. Fine, 975 F.2d at 600-04.

In this case, the relevant conduct at issue arose out of actual or attempted frauds on ten victims other than Sure Pure. (ER 1-16; PSR ¶¶ 10-12, 14-22, 66- 70). These frauds were the subject of the eighteen counts to which defendant did not plead guilty. (See id.). The inclusion of this conduct at sentencing served to increase the loss figure from the $32,000 due to the Sure Pure transaction alone to just over $1 million, which resulted in a difference of seven offense levels on the "loss *9 table" of the applicable guideline, USSG §2F.l. (See USSG §2F1.1(b)(1); see also Defendant's Sent. Position, pp. 10-11 [Under Seal SER 7-8]).

As he did below, defendant now argues that the district court violated the doctrine of specialty by considering, as relevant conduct, charges outside of the four counts to which he pled guilty -- the counts relating to the Sure Pure fraud. Defendant is incorrect. Notwithstanding that Germany did not explicitly agree to extradite defendant on any charges in the indictment other than those relating to the Sure Pure fraud, the conduct underlying the other charges was properly considered as "relevant conduct" in determining defendant's sentence. As the government argued below, this is true for two reasons: first, because the doctrine of specialty does not limit the information that may be considered in sentencing a defendant for the crimes for which he was extradited, and second, because the doctrine of specialty does not preclude a defendant's prosecution for additional violations of the same statute that are committed in the same manner as the violations for which he was extradited.

1. The Doctrine of Specialty and its Application to this Case

The doctrine of specialty prohibits a nation that has requested extradition "'from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite."' Andonian, 29 F.3d at 1434-45 (quoting *10United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987), cert. denied, 484 U.S. 1042 (1988)). This doctrine is embodied in Article 22 of the U.S.-German extradition treaty as follows:

(1) A person who has been extradited under this Treaty shall not be proceeded against, sentenced or detained with a view to carrying out a sentence or detention order for any offense committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:

a) When the State which extradited him consents thereto. * * * *

b) When such person, having had the opportunity to leave the territory of the State to which he has been surrendered, has not done so within 45 days of his final discharge or has returned to that territory after leaving it. * * * *

(2) The State to which the person has been extradited may, however, take any legal measures necessary under its law, in order to proceed in absentia, to interrupt any lapse of time or to record a statement under paragraph (1) a).

(3) If the offense for which the person sought was extradited is legally altered in the course of proceedings, he shall be prosecuted or sentenced provided the offense under its new legal description is:

a) Based on the same set of facts contained in the extradition request and its supporting documents; and

b) Punishable by the same maximum penalty as, or a lesser maximum penalty than, the offense for which he was extradited.

Article 22 of Treaty Concerning Extradition, June 20, 1978, United States-- Federal Republic of Germany, 32 U.S.T. 1485, T.I.A.S. No. 9785. (See Exhibit A to Defendant's Sent. Position [SER 1-4].)

*11 Paragraph (1) of the treaty addresses situations where authorities in the requesting country seek to prosecute an extradited defendant for offenses other than those for which he was extradited. Paragraphs (2) and (3) have no bearing on this case. Paragraph (2) permits in absentia proceedings for the certain purposes, and paragraph (3) addresses situations where the statute defining an offense is changed after extradition but during the pendency of the proceedings.

In the district court, defendant appeared initially to rely in part on paragraph (3) of the treaty and now quotes that paragraph in his opening brief, implying that he may seek to argue in his reply brief that this provision limited the ability of the sentencing court to include relevant conduct in this case. [FN6] Such an argument would be misguided, as paragraph (3) of this treaty is not relevant to this case.

FN6. Defendant appeared to rely on paragraph (3) of the treaty at pages 3 and 10 of his sentencing position filed in the district court. (Under Seal SER 4, 7). He now quotes that paragraph of the treaty in his brief on appeal. (AOB 12). In his sentencing reply papers below, however, defendant appeared to back away from reliance on this paragraph. Defendant there stated that he "cites primarily the first paragraph of the German-American extradition treaty in support of his position." (Defendant's Sent. Reply, p. 2 [Under Seal SER 13]). Defendant maintained that "[w]hether the third paragraph covers after-discovered conduct is debatable, but it need not be considered here." (Id. at 3 [Under Seal SER 14]).

By its terms, paragraph (3) speaks to situations where the offense (that is, the statute) itself is "legally altered," not where charges are added to or altered in the indictment. This reading is confirmed by the fact that the paragraph speaks of *12 "the offense under its new legal description," meaning, evidently, the offense as defined or described in the new statute. If paragraph (3) addressed situations where new charges were added, the reference to "new legal description," would be curious indeed, as would the requirement that "the offense under its new legal description" be "[p]unishable by the same maximum penalty as, or a lesser maximum penalty than, the offense for which [the defendant] was extradited" (emphasis added). The only reading that makes sense out of these provisions is one that interprets paragraph (3) as referring exclusively to situations where the terms of the statute defining the offense are altered (legislatively) during the pendency of the proceedings in the requesting country.

Any reading of paragraph (3) as limiting prosecution or punishment on additional charges does not make sense for another reason. If the phrase "legally altered in the course of proceedings" in paragraph (3) were read to refer to the addition of new charges, then the government could easily avoid the proscription in that paragraph by bringing the new charges in a separate proceeding after the conclusion of proceedings on the counts of extradition. The improbability that Germany or the United States intended this result renders unsound any argument that paragraph (3) refers to any situation other than where the statutory definition is changed.

Moreover, if paragraph (3) addressed situations where new counts not the subject of extradition were added after the *13 extradition, then there would be two distinct provisions addressing exactly the same situation in very different terms -- paragraph (1) and paragraph (3). This would make no sense, a fact that militates strongly against such an interpretation. Hence, only paragraph (1) of Article 22 of the U.S.-German extradition treaty is at issue in this case.

2. The Doctrine of Specialty Does Not Limit the Sentence that May Be Imposed on the Charges on Which Defendant Was Extradited

Defendant does not dispute that the four counts to which he pled guilty were counts on which he was extradited from Germany. (AOB 6-7, 9). He does not dispute that he was properly convicted on these counts and that the district court had authority to sentence him on these counts. (See AOB 7). Defendant's attempt to limit his punishment by invoking the doctrine of specialty must therefore fail, because the use of relevant conduct neither "punishes" nor "prosecutes" defendant for any offense other than those for which he was convicted.

When a defendant's sentence is increased due to relevant conduct outside the offenses of conviction, the defendant is not "punished" for that relevant conduct. The Supreme Court has recently held that "consideration of relevant conduct in determining a defendant's sentence within the legislatively authorized punishment range does not constitute punishment for that conduct." Witte v. United States, 115 S. Ct. 2199, 2209 (1995). Nor is a defendant whose sentence incorporates relevant conduct "prosecuted" for the acts underlying that relevant *14 conduct. Id. at 2204 (defendant "clearly was neither prosecuted for nor convicted of" uncharged relevant conduct taken into account at sentencing); see also United States v. Hoster, 988 F.2d 1374, 1378 (5th Cir. 1993) ("Consideration of relevant conduct in the selection of a defendant's sentence within the range of permissible punishment established by Congress for his offense of conviction is not the equivalent of prosecuting the defendant for an offense additional to his offense of conviction."). [FN7]

FN7. The question is not whether the consideration of relevant conduct is "punishment," as defendant suggests (see AOB 14), but whether the use of relevant conduct punishes a defendant for any offense other than the offense of conviction.

Defendant suggests, however, that the controlling authority establishing these principles, namely the Supreme Court's decision in Witte, is limited to the double jeopardy context, and does not inform the definitions of "punishment" or "prosecution" in the context of the doctrine of specialty. (See AOB 14). Although Witte was indeed a double jeopardy case, defendant offers no reason why this court should distinguish Witte's holding that the consideration of relevant conduct neither "punishes" nor "prosecutes" a defendant for any offense other than the offense of conviction. Defendant's effort to confine Witte to the double jeopardy context must fail on two grounds.

The first ground is that there is no reason to answer differently in the two contexts the question of whether, when *15 relevant conduct is considered under the Guidelines, a defendant is "punished" for that relevant conduct or "only for the offense of conviction." Witte, 115 S. Ct. at 2207. If the consideration of relevant conduct is punishment "only for the offense of conviction" in the double jeopardy context, there is no logical reason to take the opposite view in the extradition context. This is especially true because the two prohibitions (the right not to be placed twice in jeopardy and the doctrine of specialty) effect similar protections -- each limits the power of the court to proceed against a defendant. This court is not called upon here to analyze the meaning of the term "punishment" in radically different contexts.

The second ground for rejecting defendant's attempt to distinguish Witte derives from an examination of the legal authority on which the Supreme Court relied in Witte itself. In concluding that "consideration of relevant conduct in determining a defendant's sentence within the legislatively authorized punishment range does not constitute punishment for that conduct," 115 S. Ct. at 2209, the Supreme Court in Witte did not rely exclusively on double jeopardy cases. One of the cases on which the Supreme Court primarily relied in Witte was McMillan v. Pennsylvania, 477 U.S. 79 (1986), a case involving the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment. See Witte, 115 S. Ct. at 2206-07; McMillan, 477 U.S. at 80. The Court in McMillan considered the constitutionality of Pennsylvania's Mandatory *16 Minimum Sentencing Act, which required a mandatory minimum sentence if the sentencing judge found by a preponderance of the evidence that the defendant visibly possessed a firearm during the commission of the offense. 477 U.S. at 81. Like the Guidelines, the Pennsylvania sentencing provision at issue in McMillan operated "to limit the sentencing court's discretion in selecting a penalty within the range already available to it." Id. at 88.

The defendants in McMillan argued that the Due Process Clause required the state to prove beyond a reasonable doubt the fact allowing the enhancement -- visible possession of a firearm. Id. at 84. The Supreme Court rejected this contention, holding that the Pennsylvania statute's preponderance standard did not violate due process. Id. at 84-91. The Supreme Court in Witte declared that the result in McMillan reinforced the "conclusion that consideration of information about the defendant's character and conduct at sentencing does not result in 'punishment' for any offense other than the one of which the defendant was convicted." Witte, 115 S. Ct. at 2207. Thus, Witte's reliance on McMillan, a due process case, supports the application of Witte outside of the double jeopardy context, urging the result that the consideration of relevant conduct does not "punish" a defendant for any offense other than the offense of conviction, whether *17 one is looking at "punishment" in the double jeopardy context or in the extradition context. [FN8]

FN8. The First Circuit recently applied the holding of Witte outside of the double jeopardy context in United States v. Rivera-Gomez, 67 F.3d 993, 1000-01 (1st Cir. 1995). In that case, the court of appeals relied on Witte in rejecting a defendant's claim that a provision of the federal carjacking statute that enhanced his sentence for the death of his victim unconstitutionally punished him for a crime with which he was never charged. 67 F.3d at 1000-01. Notwithstanding the absence of any double jeopardy issue before it, the First Circuit deemed the matter to be controlled by Witte, stating: "The Supreme Court has made it pellucid that such sentencing enhancement schemes do not constitute punishments for separate offenses." Id. at 1001.

Moreover, even before Witte established the principle that consideration of relevant conduct in determining a sentence for the offense of conviction does not constitute punishment for the relevant conduct itself, two courts of appeals had considered claims similar to defendant's that sought to use the doctrine of specialty to limit the information that could be considered in determining a defendant's punishment. These cases reject such a limitation.

In United States v. Davis, 954 F.2d 182, 184 (4th Cir. 1992), the defendant was extradited from Israel for the crimes of conspiracy to murder, mail fraud, and arson. In its sentencing memorandum in that case, the government made reference to several instances of illegal accounting practices engaged in by the defendant that had not been included in the extradition order granted by the Israeli courts. Id. at 186. The defendant argued on appeal that as a result of the *18 government's sentencing memorandum, he was punished for offenses additional to those for which he had been extradited. Id. [FN9] Although the court of appeals found that the defendant had waived his right to appeal this issue by failing to object in district court, the court proceeded to discuss the issue, and concluded that "the fact that the trial court potentially considered the defendant's prior illegal accounting practices in imposing a sentence does not mean that [the defendant] was punished for those offenses." Id. at 187 & n.2.

FN9. The applicable U.S.-Israeli extradition treaty stated: "A person extradited under the present Convention shall not be detained, tried or punished in the territory of the requesting Party for any offense other than that for which extradition has been granted." Davis, 954 F.2d at 186.

Another pre-Witte case, Leighnor v. Turner, 884 F.2d 385 (8th Cir. 1989), arose out of a defendant's extradition from Germany to the United States. The defendant, Leighnor, was extradited to serve the remainder of a previously imposed federal sentence and to stand trial on federal fraud charges. Id. at 386. Following his extradition, Leighnor pleaded guilty to the fraud charges and was sentenced to two years imprisonment, to run concurrently with the ten-year sentence that he was serving when he escaped. Id. at 387. The Parole Commission increased Leighnor's parole release guideline range to account for certain "new criminal behavior," namely his escape from federal prison and his use of a false passport in the course of that escape. Id. Leighnor contended that the *19 increase in his parole guideline range violated the doctrine of specialty because the specialty principle enunciated in the U.S.-German extradition treaty was, as the Eighth Circuit described the defendant's claim, "sufficiently broad ... to include a guarantee that the requesting country will not extend the extradited individual's time in confinement on the basis of an offense that was not a subject of the extradition order." Id. at 389.

In rejecting Leighnor's claim, the Eighth Circuit acknowledged that Leighnor's sentence was affected by the U.S. Parole Commission's consideration of his pre-extradition offense that was not the subject of extradition. See id. at 390. The court nevertheless held that this did not establish a violation of the doctrine of specialty. In words that apply directly here, the court noted as follows: "Undoubtedly, ... the receiving government's use of the pre-extradition offense affected the defendant's sentence. But we do not believe that the rule of specialty is violated by virtue of that fact alone." Id.

An analogous situation arose in a case where the government successfully increased a defendant's punishment based on a legal doctrine, forfeiture, pursuant to which extradition had neither been sought nor granted. In United States v. Saccoccia, 58 F.3d 754, 764-65 (1st Cir. 1995), cert. denied, 116 S. Ct. 1322 (1996), decided two weeks after Witte, Switzerland extradited the defendant, Saccoccia, to the United States on various *20 charges. Following Saccoccia's trial, the district court ordered forfeiture of over $136 million. Id. at 782-83. Saccoccia claimed that the forfeiture order violated the doctrine of specialty because it was tantamount to a prosecution and conviction for an offense on which extradition was neither sought nor granted. Id. at 783. The First Circuit held that "for purposes of extradition law, forfeiture is neither a free-standing criminal offense nor an element of a racketeering offense under RICO, but is simply an incremental punishment for th [e] prescribed conduct." Id. at 784. Once it concluded that forfeiture was merely an aspect of punishment for the offense on which the defendant was extradited, the court of appeals summarily rejected the defendant's doctrine of specialty challenge to the forfeiture order. Id. The same logic applies here. [FN10]

FN10. Cf. United States v. Gallo-Chamorro, 48 F.3d 502, 506-08 (11th Cir. 1995) (because doctrine of specialty does not permit foreign intrusion into evidentiary or procedural rules of requisitioning state, it could not prevent the giving of a jury instruction that allowed the fugitive's conviction under the theory of co-conspirator liability set forth under Pinkerton v. United States, 328 U.S. 640 (1946)), cert. denied, 116 S. Ct. 59 (1995).

Defendant cites the Restatement (Third) of Foreign Relations Law of the United States for the proposition that the doctrine of specialty serves "to prevent punishment in excess of what the requested state had reason to believe was contemplated." (AOB 13). This is not the language of the treaty, however, and the Restatement does not take precedence *21 over the treaty. Andonian, 29 F.3d at 1435 ("We look to the language of the applicable treaty to determine the protection an extradited person is afforded under the doctrine of specialty."); see also The Paguete Habana, 175 U.S. 677, 700 (1900) ("where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators"); Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir.) ("public international law is controlling only 'where there is no treaty and no controlling executive or legislative act or judicial decision,"' quoting The Paguete Habana, 175 U.S. at 700), cert. denied, 479 U.S. 889 (1986); cf. Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991) (court is bound by properly enacted statute, even if statute violates international law), cert. denied, 506 U.S. 842 (1992). Indeed, the section of the Restatement to which defendant refers does not profess to be an independent source of authority but instead purports to summarize the doctrine of specialty as it exists "[u]nder most international agreements, state laws, and state practice." Restatement (Third) of Foreign Relations Law of the United States § 477. [FN11]

FN11. Defendant cites to comment "b" of this section. (AOB 13).

Moreover, even if the formulation of the Restatement were followed, defendant presented no evidence, and gave no reason to conclude, that the punishment he received exceeded what Germany *22 believed was contemplated. Defendant offers no support for the notion that German authorities performed a Guidelines calculation for his offense and desired his punishment to be limited to the results of their calculation. "[T]he doctrine [of specialty] is generally understood to prohibit indiscriminate prosecution of extradited individuals rather than to prohibit the receiving state's consideration of pre-extradition offenses while prosecuting the individual for crimes for which extradition was granted." Leighnor v. Turner, 884 F.2d at 390 (case involving specialty challenge under U.S.-German extradition treaty; emphasis in original); see also id. at 389 (rejecting argument that the specialty principle in U.S.-German extradition treaty includes "a guarantee that the requesting government will not extend the extradited individual's time in confinement on the basis of an offense that was not a subject of the extradition order"). The statutory maximum period of imprisonment to which defendant could have been sentenced for the four Sure Pure crimes was eighteen years; defendant was actually sentenced to imprisonment only for 46 months, a term far less than the statutory maximum. [FN12]

FN12. The extradition request itself is not in the record.

In conclusion, the Supreme Court's recent decision in Witte is dispositive: increasing a defendant's penalty based on a consideration of relevant conduct constitutes punishment only for the offense of conviction, not for the offenses that *23 underlie the relevant conduct. Although Witte addressed a claim of double jeopardy, its reasoning is fully applicable here. That reasoning is supported by a line of cases that hold, specifically in the extradition context, that the doctrine of specialty does not prevent the requesting country from increasing a defendant's punishment based on conduct for which the defendant was not extradited (Davis, Leighnor) or on a legal doctrine that was not presented to the extraditing country (Saccoccia). For these reasons, defendant's effort to avoid the effect of relevant conduct must be rejected. [FN13]

FN13. As shown above, there is no conflict between the doctrine of specialty, as embodied in the U.S.-German extradition treaty, and the use of relevant conduct under the Guidelines at sentencing. Hence, defendant's contention that an international treaty "overrides" the Guidelines (AOB 15) leads nowhere. As the Supreme Court explained in Witte, the relevant conduct provisions of the Guidelines do not allow the courts to consider conduct that they could not have considered in the pre-Guidelines era. 115 S. Ct. at 2207. "'[T]he fact that the sentencing process has become more transparent under the Guidelines. does not mean that the defendant is now being "punished" for uncharged relevant conduct as though it were a distinct criminal "offense.""' Id. (quoting with approval the Brief for the United States).

3. Additional Counts of the Same Violation, Committed in the Same Manner as the Counts on Which a Defendant Is Extradited, Are Properly Charged and, therefore. Are Properly Considered at Sentencing

As demonstrated above, defendant cannot prevail on his argument that the doctrine of specialty prevented the consideration at sentencing of conduct other than that for which he was extradited. Defendant's argument fails for another, independent reason, namely that defendant misconstrues the meaning and effect of the doctrine of specialty. Contrary to *24 defendant's view, the doctrine of specialty allows the prosecution not merely of the specific acts for which extradition was granted but also of additional counts of the same "offense." Where, as here, a defendant is charged with additional counts of the same violation, committed in the same manner as the counts on which he was extradited, the doctrine of specialty is not violated.

The doctrine of specialty holds that the requesting nation may not prosecute the extradited individual for any offense other than that for which the surrendering nation agreed to extradite. Andonian, 29 F.3d at 1434-35. This is the essence of the relevant portion of Article 22 of the U.S.-German extradition treaty. In deciding what is an "offense other than that for which" the defendant was extradited, this court does not construe the term "offense" to mean "count." See Andonian, 29 F.3d at 1436. Rather, this court made clear in Andonian that the doctrine of specialty does not bar prosecution for additional acts conducted in exactly the same manner and prosecuted under the same statute as the offenses for which extradition was granted. See id. at 1436-37. [FN14]

FN14. This court in Andonian did not address the question of how close in character the additional crimes must be to the crimes of extradition in order to pass muster under the doctrine of specialty. The Andonian court held that the additional money laundering counts alleged in the superseding indictment were "conducted in exactly the same manner" as the counts in the original indictment. 29 F.3d at 1437. The court did not hold, however, that exactitude was required, and cited with apparent approval a Second Circuit case, Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d Cir.), cert. denied, 409 U.S. 1059 (1972), which used a different and less stringent formulation, permitting the prosecution of the defendants in the United States for "offenses of the same character as the crime for which [the defendants] were extradited." Andonian, 29 F.3d at 1436 quotingg Fiocconi) (emphasis added).

*25 In Andonian, 29 F.3d at 1435-36, this court cited with apparent approval two cases from the Second Circuit, United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962), and Fiocconi v. Attorney General, 462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059 (1972). In Paroutian, the Second Circuit analyzed a defendant's challenge to his trial on an indictment containing two counts not found in the indictment forming the basis of his extradition from Lebanon. 299 F.2d at 490-91; see also Andonian, 29 F.3d at 1435-36. The two additional counts concerned narcotics trafficking, as did the counts on which the defendant had been extradited. Paroutian, 299 F.2d at 490-91; see also Andonian, 29 F.3d at 1436. This court noted in Andonian that the Second Circuit had distinguished between additional narcotics trafficking charges and "'some other offense totally unrelated to the traffic in narcotics."' Andonian, 29 F.3d at 1436 (quoting Paroutian, 299 F.2d at 490). As this court explained, the Second Circuit permitted the addition of further narcotics charges in Paroutian because "additional narcotics charges would not have been considered separate offenses by the surrendering country." Andonian, 29 F.3d at 1436.

*26 Similarly, the Andonian court invoked the Second Circuit's holding in Fiocconi that trial on a superseding indictment charging offenses additional to those alleged in the original indictment did not violate the doctrine of specialty. The Second Circuit had looked not at the question of whether each specific act was presented to the extraditing country but at the character of the offenses, explaining: "in the absence of any affirmative protest from [the surrendering country], we do not believe that Government would regard the prosecution of [defendants] for subsequent offenses of the same character as the crime for which they were extradited as a breach of faith by the United States." Fiocconi, 462 F.2d at 481 (emphasis added), (quoted in Andonian, 29 F.3d at 1436).

The analysis in Andonian is fatal to defendant's claim. Even granting that defendant was extradited only for the Sure Pure frauds, his extradition was for two counts of wire fraud (18 U.S.C. § 1343), one count of impersonating a federal officer (18 U.S.C. § 912), and one count of making a false statement within the jurisdiction of the United States (18 U.S.C. § 1001). All other offenses with which defendant was charged in the indictment fell under one or another of these three statutes. Hence, the offenses included as relevant conduct were of exactly "the same character" as the offenses on which Germany expressly granted extradition.

In addition, all the charged offenses were committed in exactly the same manner as the four offenses relating to the *27 attempt to obtain $32,000 in gold wire from Sure Pure through the use of false pretenses. The Sure Pure offenses and all the offenses charged in the indictment took place within a ten-day period. (See ER 5-16). In each instance, defendant was posing as an official of FEMA, operating out of the same address in Long Beach, California. In each instance, defendant took steps directed toward obtaining goods or services without cost to himself by using the government's credit. Hence, it is properly said that all of the offenses in the indictment were "conducted in exactly the same manner," Andonian, 29 F.3d at 1437, as the offenses involved in the Sure Pure fraud.

The effect of Andonian is in no way undermined by this court's earlier opinion in United States v. Khan, 993 F.2d 1368 (9th Cir. 1993), on which defendant attempted to rely in the district court. Defendant argued below that Khan, not Andonian, should control. The district court properly rejected that view, holding Andonian to be indistinguishable from this case. (See RT 6/26/96: 44 [SER 25]).

The district court was correct that this case is controlled by Andonian. In Andonian, this court rejected the defendant's attempt to read Khan as barring prosecution "on any count, as opposed to any offense, for which extradition was not expressly authorized by" the surrendering country. Andonian, 29 F.3d at 1436 (emphasis in original). The Andonian court distinguished Khan from the situation where, as in Andonian and as here, all the charged offenses were extraditable offenses in the *28 surrendering country and the surrendering country agreed to extradite the defendant on other counts of those offenses. See Andonian, 29 F.3d at 1437. [FN15]

FN15. Defendant offered a stilted reading of Andonian below when he contended that the Andonian decision "suggested that Khan's reasoning was really based on the doctrine of criminal duality [read: dual criminality], which required that the offenses be common to both treaty

countries." (Defendant's Sent. Position, p. 8 [Under Seal SER 5]). In fact, the lack of dual criminality in Khan was merely one aspect of the Andonian court's explanation of why the panel in Khan reached a different answer to the question of "'whether the extraditing country would consider the acts for which the defendant was prosecuted as independent from those for which he was extradited."' See Andonian, 29 F.3d at 1435- 37 (the quoted language appears at page 1435 of Andonian and is itself a quotation from United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989)).

Nor is Andonian distinguishable from this case. Andonian involved the addition of substantive counts (among other things) in a superseding indictment, where the defendant had been extradited on an earlier indictment not containing those counts. That is the essence of the issue here: Defendant objects to the government's addition of further counts charging violations of 18 U.S.C. §§ 912, 1001, and 1343, where he was not expressly extradited on those further counts. Both this case and Andonian present the issue of the lawfulness of "alleging additional counts of the same substantive offense," Andonian, 29 F.3d at 1435, after a defendant has been extradited.

It is not Andonian but Khan that is distinguishable from the facts in this case. Khan differs from this case in two key respects. First, the offense on which the Khan court deemed *29 that Pakistan did not grant extradition (or, more precisely, did not "unambiguously" grant extradition) was of a different nature than the offense on which the court deemed that extradition was granted. [FN16] Second, the offense on which the Khan court deemed that Pakistan did not unambiguously grant extradition was not even a crime in the surrendering country, or so the court presumed based on the record. See 993 F.2d at 1373, 1374 n.5.

FN16. Count II, the count on which this court in Khan deemed that Pakistan had unambiguously granted extradition, charged a conspiracy to import heroin. 993 F.2d at 1370, 1373. Count VIII, the count on which this court found that Pakistan "did not unambiguously agree to extradite Khan," charged the use of a telephone in facilitation of that drug offense. Id. at 1370, 1372, 1375.

Andonian makes clear that the fact that a surrendering country did not expressly surrender a defendant on a particular count does not end the inquiry under the doctrine of specialty.

In such cases, a further question must be asked, namely whether the count on which the defendant was not specifically surrendered is for the same "offense." A count may be for the same "offense" if it is of the same nature as an offense for which extradition was granted. Because all the offenses in the indictment were of exactly the same nature as the four counts involved in the Sure Pure scheme, both in character and in terms of the statutes under which they were charged, defendant could have been tried and sentenced on all those offenses.

*30 IV

CONCLUSION

For the foregoing reasons, defendant's sentence should be affirmed.

*31 STATEMENT OF RELATED CASES

The government not aware any related case pending before this court.