1996 WL 33468772 (9th Cir.)

 

For opinion see 1997 WL 453705

 

United States Court of Appeals, Ninth Circuit.

 

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

Bobby Joe KEESEE, Defendant-Appellant.

 

No. 96-50388.

 

October 15, 1996.

 

DC No. CR 94-1048-JGD

 

Appeal from the United States District Court for the Central District of California Honorable John G. Davies United States District Judge

 

Brief of Appellant

 

Maria E. Stratton, Federal Public Defender, Richard D. Burda, Deputy Federal Public Defender, Suite 1503, United States Courthouse, 312 North Spring Street, Los Angeles, California 90012-4758, Telephone (213) 894-2854, Attorneys for Defendant-Appellant.

 

*i TABLE OF CONTENTS

 

I. STATEMENT OF ISSUES PRESENTED ... 1

 

WHETHER, IN DETERMINING APPELLANT'S SENTENCE, THE COURT WAS PRECLUDED BY THE "DOCTRINE OF SPECIALTY" FROM CONSIDERING, AS "RELEVANT CONDUCT" UNDER THE SENTENCING GUIDELINES, CONDUCT THAT WAS NOT THE SUBJECT OF EXTRADITION? ... 1

 

II. STATEMENT OF JURISDICTION ... 2

 

III. STATEMENT OF THE CASE ... 2

 

A. NATURE OF THE CASE ... 2

 

B. COURSE OF PROCEEDINGS ... 3

 

C. DISPOSITION OF THE CASE BELOW AND BAIL STATUS OF THE DEFENDANT ... 3

 

IV. STATEMENT OF FACTS ... 4

 

V. ARGUMENT ... 6

 

THE COURT ERRED WHEN IT IMPOSED AN ELEVEN LEVEL INCREASE IN THE GUIDELINE BASE OFFENSE CALCULATION BY CONSIDERING AS "RELEVANT CONDUCT" CHARGES IN THE INDICTMENT FOR WHICH APPELLANT HAD NOT BEEN EXTRADITED ... 6

 

A. SUMMARY OF ARGUMENT ... 6

 

B. STANDARD OF REVIEW ... 8

 

C. FACTUAL BACKGROUND ... 8

 

D. LEGAL ANALYSIS ... 10

 

VI. CONCLUSION ... 16

 

CERTIFICATE OF RELATED CASES ... 17

 

CERTIFICATE OF COMPLIANCE ... 17

 

*ii TABLE OF AUTHORITIES

 

CASES

 

Fiocconi v. Attorney General, 462 F.2d 475 (2nd Cir.), cert. denied, 93 S.Ct. 552 (1972) ... 11

 

United States v. Andonian, 29 F.3d 1432 (9th Cir. 1994) ... 8, 11

 

United States v. Davis, 954 F.2d 182 (4th Cir. 1992) ... 8, 15

 

United States v. Khan, 993 F.2d at 1374 ... 15

 

United States v. Najohn, 785 F.2d 1420 (9th Cir.), cert. denied, 107 S.Ct. 652 (1986) ... 11

 

United States v. Rauscher, 119 U.S. 407, 7 S.Ct 234 (1886) ... 11

 

United States v. Restrepo, 903 F.2d 648 (9th Cir. 1990), withdrawn in part on Rehearing En Banc, 946 F.2d 654 (1991), cert. denied, 503 U.S. 961 (1992) ... 14

 

United State v. Sharp, 883 F.2d 829 (9th Cir. 1989) ... 15

 

United States v. Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987), cert. denied, 484 U.S. 1042 (1988) ... 11

 

Witte v. United States, 515US389, 115 S.Ct. 2199 (1995) ... 14

 

*iii RULES AND STATUTES

 

18 U.S.C. § 912 ... 3, 10

 

18 U.S.C. § 1001 ... 3, 10

 

18 U.S.C. § 1343 ... 3, 10

 

18 U.S.C. § 3231 ... 2

 

28 U.S.C. § 1291 ... 2

 

Circuit Rule 28-2.6 ... 17

 

Circuit Rule 32(e)(4) ... 17

 

Rule 4(b) Federal Rules of Appellate Procedure ... 2

 

U.S.S.G. § 2F1.1(b)(1) ... 13

 

U.S.S.G. § 2F1.1(b)(1) ... 10, 13

 

OTHER SOURCES

 

Article 22, Treaty Concerning Extradition June 20, 178 ... 12

 

Restatement (Third) of Foreign Relations of Law of United States, 477, comment b. ... 13

 

United States - Federal Republic of Germany, 32 U.S.T. 1485, T.I.A.S. 9785 ... 12

 

*1 I.

 

STATEMENT OF ISSUES PRESENTED

 

WHETHER, IN DETERMINING APPELLANT'S SENTENCE, THE COURT WAS PRECLUDED BY THE "DOCTRINE OF SPECIALTY" FROM CONSIDERING, AS "RELEVANT CONDUCT" UNDER THE SENTENCING GUIDELINES, CONDUCT THAT WAS NOT THE SUBJECT OF EXTRADITION?

 

*2 II.

 

STATEMENT OF JURISDICTION

 

This appeal is from the judgment rendered by the Honorable John G. Davies, United States District Judge, sentencing appellant Bobby Joe Keesee to forty-six (46) months imprisonment. [ECR 62; CR 34] [FN1] Judgment was entered on June 26, 1996; Mr. Keesee filed a timely notice of appeal on July 1, 1996. [FN2] [ECR 65; CR 33]

 

    FN1. As used in this brief, "ECR" and "CR" shall refer to the Excerpt of Clerk's Record and Clerk's Record, respectively. "RT" shall refer to the Report's transcript.

 

 

    FN2. Rule 4(b) of the Federal Rules of Appellate Procedure.

 

 

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and this court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

 

III.

 

STATEMENT OF THE CASE

 

A. NATURE OF THE CASE.

 

Appellant Bobby Joe Keesee appeals the sentence imposed *3 in a criminal case following his plea of guilty to wire fraud (18 U.S.C. § 1343), impersonation of a federal officer (18 U.S.C. § 912) and false statement (18 U.S.C. § 1001).

 

B. COURSE OF PROCEEDINGS.

 

On December 22, 1994, the government filed a twenty-two (22) count indictment charging Mr. Keesee with wire fraud (18 U.S.C. § 1343) (counts one through four), impersonation of a federal officer (18 U.S.C. § 912) (counts five through thirteen), and false statement (18 U.S.C. § 1001) (counts fourteen through twenty-two). [ECR 1; CR 1]

 

On January 4, 1996, Mr. Keesee entered a plea of guilty to counts one and two (wire fraud), count six (impersonation of a federal officer), and count eighteen (false statement). [9/14/95 RT 3; ECR 17; CR 14]

 

C. DISPOSITION OF THE CASE BELOW AND BAIL STATUS OF THE DEFENDANT.

 

On June 26, 1996, Mr. Keesee was sentenced to serve forty-six (46) months incarceration followed by three (3) *4 years of supervised release. [ECR 62; CR 34] He is currently serving the custodial sentence.

 

IV.

 

STATEMENT OF FACTS

 

The counts of conviction arise from the following statement of facts provided to the court by the government at the time of the guilty plea: In or about November and December 1992, Bobbie Joe Keesee devised a scheme to defraud and to obtain properties by means of materially false and fraudulent representations and pretenses. In late November 1992, Mr. Keesee obtained office space in Long Beach, California, from the Wallace group, a business which leases office space and provides business support services in conjunction with that space.

 

Mr. Keesee represented that his name was William Jamerson, that he was an employee of the department of defense and that he was in Long Beach to start a Federal Emergency Management Agency ("FEMA") operation in the Los Angeles area.

 

On November 25, 1992, Mr. Keesee sent a facsimile *5 transmission from his Long Beach FEMA office to Surepure Chemetals, Inc., a New Jersey company. The transmission purported to be a U.S. government standard form 18, request for quotation. The transmission was addressed to Surepure and requested a price quotation for 2,000 feet of gold wire, 0.5 millimeters in diameter, .9999 pure fine. The request purported to be issued by FEMA/Department of Defense logistics agency and bore the contact name of W. J. Jamerson. Surepure provided the requested price quotation and on November 30, 1992 Mr. Keesee sent a facsimile transmission in reply purporting to represent a U.S. government optional form 347, purchase order for the purchase of the gold wire. Mr. Keesee signed the purchase order as W. J. Jamerson, FEMA/ Department of Defense logistics agency.

 

At the time of these transactions, Mr. Keesee was not a U.S. government official; was not a FEMA official; and had no authority to order or obtain goods or services on behalf of the United States.

 

[1/4/96 RT 13-16]

 

*6 V.

 

ARGUMENT

 

THE COURT ERRED WHEN IT IMPOSED AN ELEVEN LEVEL INCREASE IN THE GUIDELINE BASE

 

OFFENSE CALCULATION BY CONSIDERING AS "RELEVANT CONDUCT" CHARGES IN THE

 

INDICTMENT FOR WHICH APPELLANT HAD NOT BEEN EXTRADITED.

 

A. SUMMARY OF ARGUMENT

 

The government requested that Germany extradite appellant to face charges contained in the December, 1993 complaint filed in this case. The indictment, filed after appellant's return to the United States, included the criminal charges for which he was extradited (counts 1, 2, 6, 18) along with other allegations of crime that had not been the subject of extradition. When appellant pled guilty to the extradited charges, the government promised it would dismiss the other, unextradited, charges.

 

At the time of sentencing, the government urged the court to consider the unextradited charges as "relevant conduct" *7 under the Sentencing Guidelines in determining the sentence on the extradited charges.

 

The doctrine of specialty, set forth at article 22 of the treaty of extradition between the United States and Germany, prohibits the requesting state from "proceeding against" or "sentencing" an extradited person for any offense committed prior to his surrender other than that for which he was extradited. Under that doctrine, the only charges which appellant could be prosecuted for, or sentenced, were those to which he pled guilty. The court's consideration of the unextradited charges in determining the sentence on the extradited charges is a violation of the extradition treaty.

 

The government should not be able to accomplish indirectly that which the treaty prohibited it from doing directly. To the surrendering state, the appellant was returned to the requesting state to be "proceeded against, sentenced or detained" for the offenses that were the subject matter of the extradition order, and no others. Here, the government violated its promise to the surrendering country when it punished the appellant for unextradited charges by increasing the punishment on the extradited charges.

 

*8 B. STANDARD OF REVIEW

 

The district court's determination that the prosecution of an extradited defendant does not violate the doctrine of "specialty" is reviewed de novo. United States v. Andonian, 29 F.3d 1432, 1434 (9th Cir. 1994) (citing, United States v. Khan, 993 F.2d 1368, 1372 (9th Cir. 1993).

 

C. FACTUAL BACKGROUND

 

In the latter part of 1992, Mr. Keesee conducted a scheme to defraud based on his communications and false representations in the purchase of $32,000 in gold wire from Surepure, a New Jersey company. The scheme was carried out by Mr. Keesee using the telephone and mail, while falsely posing as an employee of the Federal Emergency Management Agency (FEMA).

 

Mr. Keesee, thereafter, left the United States and, when located by authorities, was residing in the Federal Republic of Germany. In August, 1994, he was extradited to the United States from Germany. The request for extradition was based on a December, 1993 complaint and affidavit filed in this case *9 which was filed with the German government [ECR 26; CR 20, EXH. B]. Based on that submission an order of arrest and detention for Mr. Keesee was issued on June 9, 1994. That order, in pertinent part, reads:

 

[I]n November 1992 using a fictitious name [Mr. Keesee] represented himself to the company Sure Pure in Los Angeles as a representative of the Federal Emergency Management Agency in order to obtain goods in the amount of 32,000 U.S. dollars. Based on the facts as represented to date, extradition is permissible.

 

[ECR 40; CR 20, EXH. C]

 

Additional interim orders were issued in the extradition case by the German government and the final order of extradition was based, in part on "the arrest warrant ... for the Central District of California in Long Beach dated 22 November 1993...." [ECR 40-55; CR 20, EXH. C, D, E] The conduct referred to by the German government in its extradition orders corresponds with the counts of conviction in this case (Counts one, two, six and eighteen).

 

*10 Upon his return to the United States Mr. Keesee pleaded guilty to fraudulent conduct in violation of 18 U.S.C. §§ 912, 1001 and 1343. At the time of sentencing, over appellant's objection, the court considered criminal conduct charged in the indictment that had not been part of the order of extradition. The court increased the base offense level under United States Sentencing Guideline ("U.S.S.G.") Section 2F1.1(b)(1) by the amount of intended loss claimed for these unextradited charges. Appellant argued that the doctrine of specialty precluded the sentencing court's use of this alleged criminal conduct where it resulted in a demonstrated increase in the length of the sentence. [ECR 56-61; 6/26/96 RT 42-47]

 

D. LEGAL ANALYSIS

 

The doctrine of specialty is based on international comity. The surrender of the defendant requires the cooperation of the surrendering state, which it gives in exchange for the requesting state's assurances that it will live up to its promises made in obtaining extradition. A court's review of extradition concern's the petitioning state's satisfaction of those promises and is generally raised by the extradited person, whose right to complain of a *11 violation exists to the same extent as the surrendering state. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.), cert. denied, 107 S.Ct. 652 (1986); (citing, Fiocconi v. Attorney General, 462 F.2d 475, 480 (2nd Cir.), cert. denied, 93 S.Ct. 552 (1972); United States v. Rauscher, 119 U.S. 407, 419, 7 S.Ct 234 (1886)). "'The doctrine of 'specialty' prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite."' Andonian, 29 F.3d at 1434-35; (citing, United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987), cert. denied, 484 U.S. 1042 (1988)).

 

In this case, the treaty of extradition between the Federal Republic of Germany and United States provides:

 

A person who has been extradited under this Treaty shall not be proceeded against, sentenced or detained with a view of carrying out a sentence or detention order for any offense committed prior to his surrender other than that for which he was extradited, ... except ... [w]hen the state which extradited him consents thereto ....

 

*12 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 ... [b]ased on the same set of facts contained in the extradition request and its supporting documents; and ... punishable by the same maximum penalty as, or a lesser maximum penalty than, the offense for which he was extradited.

 

Article 22, Treaty Concerning Extradition, June 20, 1978, United States-Federal Republic of Germany, 32 U.S.T. 1485, T.I.A.S. 9785.

 

The government conceded to the district court that the surrendering state (Germany) had not explicitly agree to extradite the appellant on any charges in the indictment other than those to which he had pleaded guilty. [CR 25] Under that conceded set of facts it is clear that, had the government attempted to go forward with its prosecution of the appellant on the other counts in the indictment, alleging criminal conduct that had not be the subject of the extradition order, *13 the appellant could have successfully argued that such a prosecution violated the treaty's doctrine of specialty. But the doctrine forbids more than merely being prosecuted on 'unextradited charges, it also acts to protect the surrendered party from being punished for unextradited charges.

 

The doctrine of specialty is designed to prevent prosecution for an offense for which the person would not have been extradited or to prevent punishment in excess of what the requested state had reason to believe was contemplated.

 

Restatement (Third) of Foreign Relations of Law of the United States § 477, comment b. (emphasis added)

 

There is no evidence in this case that Germany had any understanding that, by agreeing to surrender appellant to face the charges contained in the request for extradition, it was subjecting him to a sentence determined, primarily (an eleven level increase in the base offense calculation, rather than a four level increase, resulted in a doubling of the applicable sentencing range; U.S.S.G. § 2F1.1(b)(1)), by criminal conduct for which the United States had made no extradition request.

 

*14 The cases that have considered the increased sentence imposed through application of the Guideline provisions governing "relevant conduct" recognize that it does constitute punishment. See United States v. Restrepo, 903 F.2d 648, 653 (9th Cir. 1990), withdrawn in part on Rehearing En Banc, 946 F.2d 654 (1991), cert. denied, 503 U.S. 961 (1992), discussion of the "real offense" sentencing system employed by the Sentencing Commission, as opposed to a "charge offense" sentencing system, and the mandatory increase in punishment occasioned by the court's consideration of the defendant's "real conduct" (both charged and uncharged).

 

While the Sentencing Guideline provisions regarding "relevant conduct," which require a sentencing court to fix punishment by considering these additional criminal charges, have been held to be consistent with the Constitutional prohibition against double jeopardy, Witte v. United States, 515US 389, 115 S.Ct. 2199, 2209 (1995), no similar decision has resolved, perhaps because it cannot, the apparent conflict between the Guidelines' broad scope of "real offense" punishment and the concepts of international comity embodied in the limitations on punishment found in the doctrine of specialty. To conclude from silence that the surrendering *15 state had abandoned its reasoned and common-sense interpretation of the treaties' limitation on punishment is contrary to international law and case authority. See United States v. Khan, 993 F.2d at 1374 where the court refused to infer an agreement to extradite from the surrendering state's silence.

 

Finally, international treaties, such as that between the United States and Germany governing extradition, have the authority of federal statutory law, enacted by congress, United States v. Davis, 954 F.2d 182, 187 (4th Cir. 1992), and as a federal statute, such treaties control government regulations such as the Sentencing Guidelines, United State v. Sharp, 883 F.2d 829 (9th Cir. 1989). Thus, the common sense concept of punishment embodied in the treaty of extradition over rides the Guideline definition.

 

The government's duty, as the requesting state, to the surrendering state is to do nothing that interferes with its promise to prosecute and punish appellant on the charges for which he was extradited. Here it abandoned that duty and the appellant had the right to complain of this violation.

 

*16 VI.

 

CONCLUSION

 

For the foregoing reasons, it is respectfully requested that the court reverse the sentence of the appellant and order the matter returned to district court for resentencing.