State v. Pang

940 P.2d 1293, 132 Wash. 2d 852, 1997 Wash. LEXIS 558

Opinions

Smith, J.

Petitioner Martin Shaw Pang seeks review of a King County Superior Court decision which denied his motion to dismiss or sever four counts of murder in the first degree from one count of arson in the first degree based upon his claim that the Federal Supreme Court of Brazil approved his extradition from that country for prosecution in the State of Washington only for the crime of arson in the first degree. We reverse.

QUESTION PRESENTED

The basic question in this case is whether the State of Washington may prosecute Petitioner Martin Shaw Pang for four counts of murder in the first degree and one count of arson in the first degree when the Federal Supreme Court of Brazil, ruling on the State’s petition for extradition, granted his extradition for prosecution in the State of Washington "for the crime of arson in the first degree, resulting in four deaths .... without the additional charge of four counts of first degree murder.” To answer the basic question, we must answer these additional questions:

(1) Does Petitioner Pang have standing to object to violation by the State of Washington of the terms of the order on extradition issued by the Federal Supreme Court of Brazil?

(2) Did the United States of Brazil explicitly or implicitly waive any objection it could have made to prosecution by the State of Washington of Petitioner Pang for murder in the first degree contrary to the specific terms of the extradition order issued by the Federal Supreme Court of Brazil?

(3) Does the "specialty doctrine” in international extradition law prohibit the State of Washington from prosecuting Petitioner Pang for crimes specifically excluded in the extradition order?

(4) Does the Extradition Treaty between the United States of America and the United States of Brazil prohibit the State of Washington from prosecuting Petitioner Pang for crimes not authorized in the extradition order?

(5) Is the State of Washington obligated to follow the de- cisión of the Federal Supreme Court of Brazil which ruled that, as a condition for extraditing Petitioner Pang to the State, he can be prosecuted only "for the crime of arson in the first degree resulting in four deaths .... without the additional charge of four counts of first degree murder”?

STATEMENT OF FACTS

On January 5, 1995, four firefighters died while fighting a fire at the Mary Pang Products, Inc. warehouse at 811 Seventh Avenue South in Seattle, Washington.¹ Fire investigators later determined the fire had been deliberately set. Martin Shaw Pang became a suspect. A fugitive warrant was issued for his arrest.² On March 3, 1995 the King County Prosecuting Attorney by Information charged Petitioner Pang with four counts of murder in the first degree as follows:

COUNT I

I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington, do accuse MARTIN S. PANG of the crime of Murder in the First Degree, committed as follows:

That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Lieutenant Walter Kilgore, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to RCW 9A.32.030(1)(C), and against the peace and dignity of the State of Washington.

COUNT II

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:

That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Lieutenant Gregory A. Shoemaker, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to RCW 9A.32.030(1)(C), and against the peace and dignity of the State of Washington.

COUNT III

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:

That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Firefighter James T. Brown, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to RCW 9A.32.030(1)(C), and against the peace and dignity of the State of Washington.

COUNT IV

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:

That the defendant MARTIN S. PANG, together with an other, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Firefighter Randall R. Terlicker, a human being who was not a participant in the crime, and who died on or about January 5, 1995;

Contrary to RCW 9A.32.030(1)(C), and against the peace and dignity of the State of Washington.

NORM MALENG

Prosecuting Attorney

By: [s] Marilyn B. Brenneman_

MARILYN B. BRENNEMAN, WSBA #91002 [sic]

Senior Deputy Prosecuting Attorney

By: [s] Timothy A. Bradshaw_

Timothy Bradshaw, WSBA # 91002 [sic]

Senior Deputy Prosecuting Attorney[³]

A Certification for Determination of Probable Cause was attached to the Information.⁴

On March 16, 1995, Petitioner Martin Shaw Pang was arrested in Rio de Janeiro, Brazil.⁵ The following day the Prosecuting Attorney of King County by amended information added a charge of arson in the first degree. The Amended Information, after repeating the four counts of murder in the first degree, then stated:

COUNT V

And I Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Arson in the First Degree, a crime of the same or similar character and based on a series of acts connected together with another crime charged herein, which crimes were part of a common scheme or plan, and which crimes were so closely connected in respect with time, place and occasion that it would be difficult to separate proof of one charge from proof of the other, committed as follows:

That the defendant MARTIN S. PANG in King County, Washington on or about January 5, 1995, did knowingly and maliciously cause a fire or explosion located at 811 Seventh Avenue South (the Mary Pang Warehouse), Seattle, which was manifestly dangerous to any human life, including firemen;

Contrary to RCW 9A.48.020(l)(a), and against the peace and dignity of the State of Washington![⁶]

In July 1995 the United States of America requested the United States of Brazil to extradite Petitioner Pang to the State of Washington for trial on four counts of murder in the first degree and one count of arson in the first degree.⁷ The Affidavit in Support of Request for Extradition states:

STATE OF WASHINGTON)

: ss.

COUNTY OF KING )

I, MARILYN B. BRENNEMAN, being duly sworn, hereby depose and say:

1. I am a citizen of the United States and a resident of the State of Washington.

2. I have been engaged in the practice of law in the State of Washington since 1980.

3. Since May 1, 1980 I have been employed by the King County Prosecuting Attorney’s Office as a Deputy Prosecuting Attorney. I was appointed Senior Deputy Prosecuting At torney on January 2,1985. My duties are to prosecute persons charged with criminal violations of the laws of the State of Washington. In the course of such prosecutions, I have become knowledgeable about the state criminal statutes and case law, including those related to the crime of Murder in the First Degree and Arson in the First Degree. I am responsible for prosecuting the case of State of Washington vs. Martin Shaw Pang, King County Superior Court Cause Number 95-1-00473-0. I am therefore familiar with the evidence and charges in this case and the contents of the relevant files of the King County Superior Court and the Office of the King County Prosecuting Attorney.

4. On March 3, 1995, an Information was filed in King County Superior Court charging the defendant with the crimes of Murder in the First Degree, Counts I, II, III, and IV, Class "A” Felonies, carrying the potential penalty of life imprisonment. On March 17, 1995, an Amended Information was filed in King County Superior Court adding the charge of Arson in the First Degree, Count V, also a Class "A” Felony, carrying the potential penalty of life imprisonment.

5. The statutes cited in the Information and Amended Information are Revised Code of Washington 9A.32.030(1)(C) and 9A.48.020(l)(a). These statutes are as follows:

9A.32.030. Murder in the first degree.

(1) A person is guilty of murder in the first degree when:

(a) With a premeditated intent to cause the death of another person, he causes the death of such person or of a third person; or

(b) Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or

(c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first, and (5) kidnapping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or an other participant, causes the death of a person other than one of the participants: except that in any prosecution under this subdivision (l)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

(1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

(2) Murder in the first degree is a class A felony.

9A.48.020. Arson in the first degree.

(1) A person is guilty of arson in the first degree if he knowingly and maliciously.

(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen; or

(b) Causes a fire or explosion which damages a dwelling; or

(c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime; or

(d) Causes a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds.

(2) Arson in the first degree is a class A felony.

9A.20.021. Maximum sentences for crimes committed July 1,1984, and after

(1) Felony. No person convicted of a classified felony shall be punished by confinement or fine exceeding the following:

(a) For a Class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine;

(b) For a class B felony, by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by such confinement and fine;

(c) For a class C felony, by confinement in a state correctional institution for five years, or by a fine in an amount fixed by the court of ten thousand dollars, or by both such confinement and fine.

(2) Gross misdemeanor. Every person convicted of a gross misdemeanor defined in Title 9A RCW shall be punished by the imprisonment in the county jail for a maximum term fixed by the court of not more than one year, or by a fine in an amount fixed by the court of not more than five thousand dollars, or by both such imprisonment and fine.

(3) Misdemeanor. Every person convicted of a misdemeanor defined in Title 9A RCW shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, or by both such imprisonment and fine.

(4) This section applies to only those crimes committed on or after July 1, 1984.

6. Violations of these statutes are felonies under Washington state law. These statutes were the duly enacted laws of the State of Washington at the time the offenses were committed, at the time the Informations were filed, and are now in full force.

7. The Statute of Limitations on prosecuting these offenses is Revised Code of Washington 9A.04.080 which states as follows:

Prosecutions for the offenses of murder, and arson where death ensues, may he commenced at any period after the commission of the offense, for offenses the punishment of which may he imprisonment in a state correctional institution, committed by any public officer in connection with the duties of his office or constituting a breach of his public duty or a violation of his oath of office, and arson where death does not ensue, within ten years after their commission; for violations of RCW 9A.44.070, 9A.44.100(l)(b), within seven years after their commission; for violation of RCW 9A.82.060 or 9A.82.080, within seven years after their commission; for bigamy, within three years of the time specified in RCW 9A.64.010; for all other offenses the punishment of which may be imprisonment in the state correctional institution, within three years after their commission; two years for gross misdemeanors, and for all other offenses, within one year after their commission: Provided, That any length of time during which the party charged was not usually and publicly resident within this state shall not be reckoned within the one, two, three, five, seven, and ten years respectively: And further provided, That where an indictment has been found, or complaint or an information filed, within the time limited for the commencement of a criminal action, if the indictment, complaint or information be set aside.

8. I have reviewed the facts of these offenses and attest that the allegations in the offenses are not time barred.

9. The Information charges that the defendant Martin Pang, together with another, in King County, Washington on or about January 5, 1995, while committing or attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the deaths of Lieutenant Walter Kilgore, Lieutenant Gregory A. Shoemaker, Firefighter James T. Brown, and Firefighter Randall R. Terlicker.

10. According to the Certification for Determination of Probable Cause filed in this case the Seattle Fire Department responded to a fire on January 5, 1995, at the Mary Pang Products warehouse in Seattle, King County, Washington. While attempting to extinguish the fire, several firefighters entered the first floor of the engulfed warehouse. Without warning, the floor collapsed, dropping the firefighters to the sub-basement. Some of the firefighters were able to escape the building — four were not. Lieutenant Walter D. Kilgore, Lieutenant Gregory A. Shoemaker, Firefighter James T. Brown, and Firefighter Randall R. Terlicker died in the fire. The King County Medical Examiner has determined that Lieutenant Shoemaker died from smoke inhalation, and the other three died from suffocation.

On December 13, 1994, Special Agent Sheryl Bishop of the United States Bureau of Alcohol, Tobacco and Firearms ("ATF”) was contacted by a citizen/witness who told her that Mary Pang’s business, located in the warehouse, was in decline, and that the warehouse was to be "torched” sometime between December 16, 1994 and December 18, 1994.

On December 14, 1994, [Agent] Bishop met with another witness who stated that on several occasions in the month prior to December 14, 1994, the defendant told the witness that the warehouse was going to burn down and advised the witness to get personal items out of the warehouse. On other occasions during the month, the defendant told the witness how the warehouse would be burned down. His scenarios of how it would happen, which the witness diagrammed for [Agent] Bishop, almost exactly described how the fire actually occurred.

On another occasion, in the month prior to the fire, the defendant spoke with yet another witness and cryptically suggested the witness remove personal items from the warehouse. That witness also helped the defendant remove the defendant’s personal items from the warehouse and transport them to storage lockers that he had rented on November 11, 1994.

On January 21, 1995, a search warrant was served on the defendant’s storage lockers. Inside the lockers, investigators found many personal items belonging to the defendant, including photographs, trophies and awards, family mementos, and financial records. The investigators, based on their training and experience, indicate that persons who intend to burn down their homes or businesses often remove items which cannot be replaced, such as photographs and personal momentos.

In December 1994, the defendant took a close friend and confidant to the warehouse. The defendant told the witness that the business (Mary Pang’s Food Products, Inc.) had lost major clients and was not doing well. He complained that his parents were old and feeble, yet would not sell the business. He went on to tell the witness that the warehouse would burn down in the next month, and that it would look like transients set the fire.

Yet another witness and the defendant have been friends for about six years. During the summer of 1994, the defendant told the witness that he would like to have the business burn, and that it would go up like a tinderbox. The defendant also said that he thought about doing it. The defendant also indicated to the witness that if the business burned down "it would kill my parents.”

On numerous other occasions over the last six years, the defendant has told friends of his that the warehouse would be burned down. These friends have detailed the defendant’s statements in their statements given to investigators. Several witnesses have given detailed, independent statements that the defendant asked them to burn the Mary Pang warehouse, as recently as last year.

During conversations with witnesses immediately after the fire, the defendant told them how a person he described as a transient must have lighted the fire in the warehouse. The defendant’s description of how the fire must have been lighted describes how the fire actually occurred and was made prior to the expert’s determination that the fire had been deliberately set.

After the fire, the defendant told a witness his scenarios of how the fire must have been lighted. The witness then gave the information to homicide investigators. The fire investigators assigned to identify the cause of the fire had just begun sifting the remains of the business. They did not reach, or announce, their conclusions as to how the fire started until several days after the defendant described his scenarios of how the fire must have been lighted. The fire investigators were not told by homicide investigators about the scenarios that the defendant described to the witness.

The day after the fire a different witness had a conversation with the defendant in which the defendant asked the witness if a transient had started the fire at the warehouse would it be considered homicide? The defendant also attempted to throw suspicions on his ex-wife Rise Pang and her current husband, Joseph. The witness noticed throughout their conversation that the defendant appeared very nervous and worried about criminal charges.

The defendant later telephoned this witness and said that he had been "framed” for the fire and was going to take a "long vacation”. The defendant began crying, and told the witness that he (defendant) would never see his friends again. The defendant continued to claim that he had been set up by Joseph, and then said to the witness, in a very strained voice, "Nobody was supposed to get hurt, the building was just supposed to burn down.”

The day after the fire, the ATF National Response Team, in conjunction with the Seattle Fire Department’s Fire Investigation Unit, began investigating what caused the warehouse fire. The ATF National Response Team is composed of ATF agents who are Certified Fire Investigators. They have become Certified Fire Investigators by completing hundreds of hours of training in determining the cause and origin of fires. Each Certified Fire Investigator has personally investigated, in order to determine the cause and origin of fires, over one hundred fire scenes.

Based upon the investigators’ examination of the warehouse fire scene, including burn patterns, liquids and physical evidence, it has been determined that this fire was deliberately set.

The investigators also learned that the arsonist(s) entered the basement area either by using a key or entering a code into the alarm keypad. Firefighters who were first on the scene found that all exteriors [sic] doors not secured by the keypad were locked.

Once inside the pallets area where the fire was set, the investigators found that the interior door leads to an exterior door which also does not have a keypad. This interior door’s padlock had been pried off, as if to look like the fire-setter had entered the pallet area through the un-alarmed doors. Additionally, a gasoline can which did not belong to the warehouse was found in the room between these two doors. However, a closer examination showed that the pry marks on the interior door were made from the inside, not the outside, as someone gaining entry through un-alarmed doors from the outside would do. And, as stated above, this mirrors the defendant’s statements to witnesses about how a transient was responsible for the fire that burned the warehouse.

In addition, the investigators found that the person who lit this fire worked rapidly. The last person to leave the warehouse basement reports leaving at approximately 6:30 p.m. He saw nothing to indicate a fire. A witness whose band rented space in the warehouse basement, entered the basement shortly before 7:00 p.m. and saw thick smoke. He removed some items from his space, then ran to a telephone booth to call 911. When fire units arrived shortly thereafter, the basement area was fully engulfed in flames. The investigators estimate, based on training and experience, that it took approximately twenty minutes from the time this fire was lit to the time the basement was fully engulfed. This indicates that the arsonist was probably familiar with the warehouse and the occupants’ schedules.

The investigators have interviewed dozens of defendant’s friends and business associates. Through these interviews the investigators have learned that the defendant has, for the most part, been supported by his parents. Other than a time spent working for his parent’s business, the defendant has been frequently unemployed. His parents paid for defendant’s short-lived auto racing career, and were helping support him while he pursued an acting career. They gave him gifts of money on all major holidays, paid for his cars; paid for his house and made his child support payments. The defendant had access to, and used checks and credit cards belonging to the business.

Additionally, as described above, the once-successful business, in the last several years, had been failing. Several major accounts, such as Safeway Stores, had been lost. Suppliers indicate that checks written on company accounts, some for as little as $150 would bounce. When that happened the suppliers would have to contact the defendant’s parents, who would provide a personal check to cover the amounts owed. The defendant repeatedly expressed to friends and associates his frustration with both the business’s decline as well as his parents’ continual refusal to sell it or relinquish control to him. The defendant’s parents have two children, the defendant and his sister Marlys. Marlys is estranged from the family and has not spoken with them for many years. Harry and Mary Pang, both in their 70’s, have no life insurance, their policy having recently lapsed. However, the business, although failing, was well insured. Additionally, the defendant had expressed to various friends over years his plans to use the warehouse property, valued at over $400,000 for his own business.

According to statements made by the defendant to numerous witnesses, he fled the state to avoid prosecution in this matter. One witness has given a statement that the defendant was researching countries without extradition treaties with the United States.

11. On March 3, 1995, the defendant was charged in the above King County Superior Court cause with the crimes of Murder in the First Degree, Counts I, II, III, and IV, and a warrant was issued for his arrest setting bail in the amount of $5,000,000.00. Martin Pang is identified as an Asian male; Date of Birth: November 12, 1955; Place of Birth: Hong Kong; Citizenship: United States citizen; Height: 6’0”; Weight 175 lbs [sic] Black hair; Brown eyes; Scar below his throat.

12. On March 16, 1995, the defendant was arrested in Rio de Janeiro, Brazil, and is currently being held in that jurisdiction pending extradition proceedings. On March 17, 1995, an Amended Information was filed in the above cause adding an additional charge of Arson in the First Degree, Count V.

13. The defendant fled the United States to avoid prosecution and was arrested by Brazilian authorities in Rio De [sic] Janeiro on March 16, 1995. Two agents from the United States Federal Bureau of Investigation accompanied Brazilian authorities during the arrest. The defendant immediately initiated conversation with Special Agent Schoenlein enroute to the Brazilian police station. Agent Schoenlein answered questions the defendant had about extradition and the defendant then initiated conversation about the arson of Mary Pang’s in Seattle. Agent Schoenlein advised the defendant that they could discuss those matters later at the police station if the defendant chose to do so. Agent Schoenlein also advised the defendant of his Miranda rights. The defendant told Agent Schoenlein that he wanted to waive his Miranda rights to tell his "side of the story”.

14. At the police station the defendant once again indicated his desire to speak with Agents Schoenlein and Burroughs and he signed a form that listed and waived his Miranda rights. After conversation in which the defendant attempted unsuccessfully to convince Agents Schoenlein and Burroughs he had nothing to do with the arson the defendant was advised by the agents to tell the truth. At that point the defendant admitted starting the fire on January 5, 1995 at the Mary Pang business. The defendant gave a four page statement describing his actions which was written for him by Agent Schoenlein. The defendant read and initialed each page of the handwritten statement and signed the statement.

15.1 have attached a true copy of the Information and Certification for Determination of Probable Cause in the case of State of Washington vs. Martin Shaw Pang, King County Superior Court Cause Number 95-1-00473-0 as Exhibit 1. I have also attached a true copy of the Motion and Order Determining the Existence of Probable Cause, Directing Issuance of Warrant and Fixing Bail as Exhibit 2. The Deputy Clerk of the King County Superior Court Clerk’s Office is able to make this certification because he is an officer of the King County Superior Court and the original document is maintained in a file in the King County Superior Court Clerk’s Office.

16. I have also attached a true copy of the Arrest Warrant and this is attached as Exhibit 3. In this jurisdiction it is the practice that the Clerk of the Superior Court issues the arrest warrant following the filing of the court’s order to issue the warrant (refer to above Exhibit 2). The Chief of the Seattle Police Department is able to make this certification of the arrest warrant as his department maintains records of unserved [sic] arrest warrants in Seattle.

17. I have also attached a true copy of the Motion, Certification and Order Permitting Filing of an Amended Information as Exhibit 4.

18. I have also attached a true copy of the Amended Information as Exhibit 5.

19. I have also attached to this affidavit the statements of the following witnesses:

Affidavit of Kim Kirkendall, Exhibit 6;

Affidavit of Kevin C. Hook, Exhibit 7;

Affidavit of Richard D. Binzer, Exhibit 8;

Affidavit of Paul H. Bentley, Exhibit 9;

Affidavit of Wayne E. McFall, Exhibit 10;

Affidavit of Karlyn Byham, Exhibit 11;

Affidavit of Robert S. King, Exhibit 12;

Affidavit of Cleave Odegard, Exhibit 13;

Affidavit of Marjorie G. Newman, Exhibit 14;

Affidavit of Rise Pang, Exhibit 15;

Affidavit of Charles T. Graves, Exhibit 16;

Affidavit of Richard C. HarrufF, Exhibit 17;

Affidavit of Terri Haddix, Exhibit 18;

Affidavit of Michael J. Shannon, Exhibit 19;

Affidavit of Gary D. Schoenlein, Exhibit 20;

20. The above affidavits, Exhibit 6 through 20, were signed and sworn before a Notary Public who is authorized to administer an oath. I have thoroughly reviewed these statements and the attachments to them, and attest that the evidence indicates that Martin Pang is guilty of the offenses charged in the Amended Information.

_[s] Marilyn B. Brenneman

MARILYN B. BRENNEMAN

Senior Deputy Prosecuting Attorney

SUBSCRIBED and SWORN to before me this 6th day of April, 1995.

[s] Brian D. Gain

BRIAN D. GAIN

SUPERIOR COURT JUDGE

KING COUNTY SUPERIOR COURT

I, NORM MALENG, Prosecuting Attorney for King County, Washington, do hereby certify that Marilyn B. Bren-neman is a duly appointed Senior Deputy Prosecuting Attorney for King County, Washington.

SIGNED this 6th day of April, 1995.

[Seal.] _[s] Norm Maleng_

NORM MALENG

King County Prosecuting Attorney[⁸]

This affidavit was amended by a Supplemental Affidavit in Support of Request for Extradition on July 21, 1995. It states:

STATE OF WASHINGTON)

: ss.

COUNTY OF KING )

I, TIMOTHY A. BRADSHAW, being duly sworn, do hereby depose and say:

1. I am a citizen of the United States and a resident of the State of Washington.

2. I have been engaged in the practice of law in the State of Washington since 1986.

3. Since September 01, 1988 I have been employed by the King County Prosecuting Attorney’s Office as a Deputy Prosecuting Attorney. I was appointed Senior Deputy Prosecuting Attorney on January 01, 1994. My duties are to prosecute persons charged with criminal violations of the State of Washington. In the course of such prosecutions, I have become knowledgeable about the state criminal statutes and case law, including those related to the crime of Murder in the First Degree and Arson in the First Degree, and have prosecuted both Murder and Arson cases.

4. My co-counsel, Marilyn Brenneman, and I are responsible for prosecuting the case of State of Washington vs. Martin Shaw Pang, King County Superior Court Cause Number 95-1-00473-0. I am wholly familiar with the evidence and charges in this case filed by Ms. Brenneman and myself [sic], and with the contents of the relevant files of the King County Superior Court and the Office of the King County Prosecuting Attorney. I am additionally familiar with all previous submissions, affidavits, statutes, and exhibits filed by Marilyn Brenneman in support of our request for extradition,

5. Co-counsel Brenneman is currently out of the State of Washington attending her father’s funeral and family duties.

6. On April 6, 1995, my co-counsel, Marilyn Brenneman, signed an affidavit in support of request for extradition of Martin Shaw Pang to stand trial for four counts of Murder in the first degree and one count of Arson in the first degree.

7. It is my understanding that the certification of the statute has been challenged by the defense and that minor amendments made to the murder statute in 1990 were omitted. The omissions do not bear directly on the specific charges against Martin Shaw Pang. However, although these statutes were duly certified and authenticated in the body of the prior affidavit in support of the request for extradition, I am providing this supplemental affidavit to provide the court with a true and correct copy of current statutory language for Murder in the first degree, pursuant to Article IX, item 2, of the United States/Brazil extradition treaty. The text of all applicable statutes/legislation, the text of the appropriate statute of limitations, and the applicable penalties are attached as Supplemental Exhibit A, which I have also signed and dated.

8. I know of no other pertinent omissions, clerical or otherwise, in the affidavits and information previously provided in support of extradition of Martin Shaw Pang.

_[s] Timothy A. Bradshaw

TIMOTHY A. BRADSHAW

Senior Deputy Prosecuting Attorney

SUBSCRIBED and SWORN to before me

this 21st day of July, 1995.

_[s] G. T, Mattson,_

GEORGE T. MATTSON,

Superior Court Judge King County Superior Court State of Washington United States[⁹]

On December 18, 1995, the Federal Supreme Court of Brazil granted extradition on the single count of arson in the first degree, but not on the four counts of murder in the first degree.¹⁰ A summary provided by the Federal Supreme Court states:

Summary.

1. Extradition.

2. U.S. citizen charged, by the Superior Court of King County, Seattle, Washington, U.S.A., as the perpetrator of four acts of murder in the first degree "by committing and attempting to commit the crime of arson in the first degree and in the course of and in furtherance of such crime, as well as in immediate flight therefrom.” A charge was later added, accusing the person being sought of arson in the first degree as well, a class A felony.

3. Inasmuch as the acts are covered under two distinct offenses, the majority of the Court decided, for purposes of the extradition, that the case is one of arson in the first degree under the law of the requesting State, corresponding in the Brazilian Penal Code to the crime of arson defined in Article 250, combined with its Paragraph 1, Section I, and with Article 258 of that same Code because of the resulting death of four persons.

4. Consequently, the decision by the majority of the Court did not hold that the situation as described was one of arson in the first degree, plus four separate first-degree murders.

5. Therefore, the Court, by majority vote, granted the requested extradition in part, for the crime of arson in the first degree, resulting in four deaths and the consequences thereof under U.S. law. However, the Court did so without the additional charge of four counts of first-degree murder.

6. The minority of the Court, as expressed in the opinion of the Rapporteur, granted the extradition under the terms of the petition by the Requesting State, so that the person being sought may be tried and judged according to the charge and addendum, under U.S. law. It did not stipulate any reservation.

7. Lastly, the decision of the Court did not include any restriction as to the possibility of life imprisonment.

DECISION

The case files having been reviewed and the case stated and discussed, the Justices of the Federal Supreme Court, meeting in plenary session and acting by majority vote in accordance with the minutes of the judgment and the transcript thereof, grants the extradition in part, on the grounds that the charges of arson in the first degree and murder in the first degree, as described in the extradition request, correspond in Brazil to the single crime that is defined in the main part of Article 250 and in Article 258 of the Brazilian Penal Code. Therefore, they exclude from the grant of extradition the charges of murder in the first degree. Also by majority vote, the Court decided to reject the need to condition surrender of the person sought on a pledge to commute life imprisonment to a maximum of 30 years imprisonment.

Brasilia, December 18, 1995 [Signatures]

Sepúlveda Pertence, Chief Justice Néri da Silveira, Rapporteur[¹¹]

The United States through its Embassy on February 22, 1996 requested written authorization from the Brazilian Ministry of Foreign Affairs to prosecute Petitioner Pang "in accordance with the revised code of Washington, Title 9A, Sections 48.020 and 32.030(l)(c), which provide for punishment of an individual who commits arson, and in the course of that crime, causes the death of a person who was not a participant in the crime.”¹² The letter, which mentioned "arson,” but did not mention "murder,” stated:

The Government of the United States respectfully requests that, pursuant to Article XXI of the Extradition Treaty between Brazil and the United States of America, done at Rio de Janeiro on January 13, 1961, or any other legal basis, the Government of the Federal Republic of Brazil provide written authorization, to the United States to prosecute MARTIN SHAW PANG in accordance with the revised code of Washington, Title 9A, Sections 48.020 and 32.030(1)(C), which provide for the punishment of an individual who commits arson, and in the course of that crime, causes the death of a person who was not a participant in the crime. As recognized by the Brazilian Supreme Court, these provisions of the Revised Code of Washington criminalize the same conduct as described in Sections 250 and 258 of the Brazilian Penal Code.[¹³]

By letter of February 27, 1996 the Brazil Ministry of Foreign Affairs denied the request, indicating it did not have jurisdiction to interfere with the extradition order of the Federal Supreme Court of Brazil.¹⁴ After reiterating a portion of the ruling of the Federal Supreme Court, the letter read:

The Ministry of Foreign Affairs points out to the Embassy of the United States of America that, pursuant to the provisions of the Federal Constitution on the separation of powers in the government, the Executive Branch does not have jurisdiction to interpret or establish limits regarding the scope of the decision handed down by the Judicial Branch, which has exclusive jurisdiction with respect to any interpretation of judicial acts.[15]

On February 28, 1996, Petitioner Martin Shaw Pang was surrendered by Brazil into custody of United States of America authorities. He was immediately returned to the United States and the State of Washington.¹⁶

The United States appealed to the Federal Supreme Court of Brazil seeking clarification of the extradition order.¹⁷ The appeal states in its Summary:

By granting extradition only on the basis of the Washington arson statute, the Brazilian Supreme Court’s decision in the case of Martin Shaw Pang would have the unfortunate effect of preventing United States authorities from prosecuting Mr. Pang for the consequences of the arson; namely, the resulting deaths. The arson statute in the State of Washington is equivalent only to Article 250 (simple arson) of the Brazil Penal code; it penalizes only the arson itself, but not the resulting deaths. As such, the Washington arson does not punish the crime in the same way that Article 258 (aggravated arson) of the Brazilian Penal Code would. Rather in the State of Washington, the only law that truly corresponds to Article 258, by taking into proper consideration the deaths of the four firefighters, is the "felony murder” law (which, although codified within the first degree homicide statute, is different from the other first degree homicides because it does not require premeditated intent to kill). Accordingly, the approval of extradition only for arson would be equivalent to granting extradition only for the offense punished under Article 250, but not the offense punished under Article 258.

Such limitation would be significant because of the potentially minimal sentence [Mr.] Pang could receive if prosecuted only under Washington arson statute. Although the crime of arson theoretically carries a punishment of life in prison, because of the existence of mandatory sentencing guidelines under Washington State law, the presumptive sentence for [Mr.] Pang would be only 21 to 27 months in prison. Such a penalty for a crime in which four men lost their lives would be grossly unfair and disproportionate to the gravity of the offense. It is for this reason that the Government of the United States and the people of the State of Washington are so concerned about the way in which the Court’s decision is framed. It would be extremely unfortunate if a merely technical difference in our respective legal systems were to result in a severe injustice. The United States therefore respectfully requests that the Court clarify its ruling, so as to permit the prosecution of Pang for the two Washington State offenses — arson and felony murder — that most closely correspond to Article 250 and 258 of the Brazilian Penal Code.[¹⁸]

On March 27, 1996, the Federal Supreme Court rejected the appeal, holding that its extradition order unambiguously excluded the charges of murder in the first degree from the grant of extradition.¹⁹ The court stated:

SUMMARY. [1.] Extradition. Appeal for clarification.

2. U.S. citizen charged, in the State of Washington, U.S.A., with the crime of arson in the first degree and with four acts of murder in the first degree, the victims being firefighters who assisted in fighting the fire.

3. By majority of votes, this Court, inasmuch as the acts are covered under two distinct offenses, decided that the case is one of arson in the first degree under the law of the requesting State, corresponding in the Brazilian Penal Code to the crime of arson as defined in Article 250, combined with its

Paragraph 2, Section I, and with Article 258 of that same Code because of the resulting death of four persons.

4. Appeal for clarification by the requesting State arguing the existence of contradictions and obscurities in the decision.

5. It is alleged in the appeal for clarification that the facts as set forth in the request for extradition describe a case of arson that resulted in the deaths of four firefighters; however, the definition of the offense adopted in the decision now being appealed does not encompass the resulting deaths, only the threat against the life of any person or firefighter. [The decision held that] the crime of arson in the first degree, according to the Revised Code of Washington, is equivalent solely to the crime of arson in Article 250 of the Brazilian Penal Code and does not include the hypothesis found in Article 258 of said Code. The appeal for clarification further argues that the crime of arson in the first degree and the crime of murder in the first degree (termed "felony murder”) are considered by the Revised Code of Washington as being independent criminal offenses and that the latter is equivalent to the crime described in Article 258 of the Brazilian Penal Code. It is also alleged in the appeal that if the terms of the decision now being appealed were upheld, the requesting State would be unable to prosecute and try the person whose extradition is being sought for the deaths resulting from the fire.

6. Regulatory and procedural limits on appeals for clarification according to Federal Supreme Court case law. Appeals for clarification must not infringe upon the judgment. The greater degree of flexibility that is allowed them, as an exception in cases of obvious material error or manifest nullity of the decision, does not justify their inappropriate use to challenge the correctness of a judgment on the merits and to achieve its modification.

7. The absence of any doubt or obscurity as regards the denial of the extradition with respect to the charges of the four crimes of murder in the first degree is demonstrated in the terms of the decision, which did not consider the facts, as described in the request, as characterizing independent crimes of arson in the first degree and murder in the first degree. The extradition was granted without any restrictions as to the possibility of life imprisonment; but only on the crime of first- degree arson with the results it produced (four deaths) and all the consequences thereof pursuant to United States law without, however, the added charge of four counts of murder in the first degree.

8. Nor is there any contradiction in the decision under appeal. The contradiction would have to have arisen unexpectedly among the parts of the judgment itself, in the logical composition thereof. The position of the majority of the Court, reflected in the decision, did not acknowledge the occurrence, in the case at hand, of independent crimes but only the crime of arson in the first degree with its results and consequences (four deaths) according to U.S. law. It should be noted, furthermore, that Article 258 of the Brazilian Penal Code does not define an independent crime other than the one described in Article 250 thereof. Only the results described therein (physical injury or death) were considered by the legislator [sic] to serve as qualifying circumstances in crimes of common peril, including arson, aggravating the penalty.

9. Likewise there is no mistake or obvious error in the decision now being appealed. The decision resulted from a thorough discussion by the members of this Court that took the facts and their legal context into account.

10. The Federal Supreme Court is not insensitive to the serious concerns expressed in the appeal for clarification as regards potential restrictions on the amount of the penalty that could be imposed in the requesting State on the person whose extradition is sought, by virtue of the limits established in the granting of the request on a partial basis only. However, it is not appropriate in a decision on extradition to give primary consideration in the requested State to the aspect of the cases involving the amount of the penalty that the requesting State may, under its legislation, impose on the person being sought, unless there is a specific restriction in the requested State, as in Brazil with the rejection of the death penalty.

11. Apart from that reservation, given the limited scope of the appeal for clarification, it is not possible in the appeal to evaluate the merits of the controversy regarding the penalties which the requesting State might, by application of its domestic laws, impose on the person whose extradition is be ing sought. This position is not ascribable to a lack of interest on the part of the Court as regards the need for cooperation on the international level between the governments of different countries for purposes of combating crime. Rather, it results from the legal impossibility, under Brazilian procedural law, to reconsider a matter already discussed in the court record of the judgment on the extradition.

12. Appeal for clarification rejected.

DECISION

The case files having been reviewed and the case stated and discussed, the Justices of the Federal Supreme Court, meeting in plenary session and in accordance with the minutes of the judgment and the transcript thereof, unanimously agree to deny the appeal.

Braslia, March 27, 1996 [Signatures]

Sepúlveda Pertence, Chief Justice Néri da Silveira, Rapporteur[²⁰]

The King County Prosecuting Attorney issued a statement on February 29, 1996 asserting the opinion of the Federal Supreme Court of Brazil is ambiguous. The statement, contrary to the record, also asserts certain promises or agreements by Brazilian officials to waive objection to prosecution of Petitioner Pang for murder in the first degree. The statement reads:

Statement of King County Prosecuting Attorney Norm Maleng on the Return of Martin Pang:

At this very moment, Martin Pang is airborne — he is on the final leg of his trip back to Seattle, where he will stand trial for the crime that killed four firefighters.

As of today, the opinion from the Brazilian Supreme Court does not clearly authorize the prosecution of Martin Pang for felony murder. The opinion must be clarified before we proceed.

Our fight to clarify this decision continues on two fronts:

First, the State Department will file tomorrow a motion asking the Brazilian Supreme Court to reconsider and clarify its ruling;

Second, Secretary of State Warren Christopher, who arrives in Brazil tomorrow, will personally ask the Brazilian government to extradite Martin Pang without restriction.

Let me outline some recent events in the case:

* Attorney General Janet Reno called her counterpart in Brazil, Justice Minister Nelson Jobiem [sic], two weeks ago. Minister Jobiem [sic] assured the United States that his government would grant our request for extradition of Martin Pang without restrictions;

* Last month a delegation from the United States, led by Ambassador Lavitsky [sic:] [Levitsky], met with the Brazilian Minister of Justice and reached agreement in principle that Brazil would waive any objections to the full prosecution of Martin Pang under Washington law;

The U.S. delegation worked together with Brazilian officials to draft the promised waiver and diplomatic note.

Our delegation left Brazil with the assurance that Pang would be extradited with no restrictions.

* Despite these assurances, we have been waiting for action on the waiver;

* Last Friday, the Brazilian Supreme Court issued its written opinion on the case. The court’s opinion is ambiguous.

Some portions of the summary opinion seem to limit the prosecution to a single count of arson, yet other portions of the summary opinion seem to defer to the consequences under American law for an arson that results in death, making the summary ambiguous and in need of clarification.

That is why the United States will file a motion for reconsideration tomorrow.

* On Monday, the United States Department of State transmitted an official diplomatic note to the government of Brazil, requesting a specific waiver under the extradition treaty, lifting all restrictions.

* On Tuesday of this week, the Brazilian government responded, officially denying the request from the United States.

We have not yet succeeded in our goal to have Martin Pang tried for felony murder.

I say today what I said two months ago:

This is unjust and unfair.

We have not given up the fight.

Two avenues remain to try and turn this result around:

* First, the United States will file a motion for reconsideration tomorrow, urging the Supreme Court of Brazil to reconsider and clarify their opinion.

* Second, Secretary of State Warren Christopher arrives in Brazil on Friday for a series of meetings with Brazilian officials. The Pang case is on his agenda.

He will express the strong disappointment of the United States government and ask that the Executive branch grant the waiver requested by the United States allowing unrestricted prosecution.

Martin Pang is returning today because we are nearing the end of the 60 day period for his return as required under the treaty.

We have not given up on either the diplomatic or legal avenues to correct this injustice.

Arraignment will be scheduled within two weeks from today.[²¹]

On April 5, 1996 the King County Prosecuting Attorney filed in the King County Superior Court the Affidavit of Timothy A. Bradshaw in Support of the State’s Response to Motion to Dismiss which states:

STATE OF WASHINGTON)

: ss

COUNTY OF KING )

1. TIMOTHY A. BRADSHAW, Senior Deputy Prosecuting Attorney for King County, hereby declares and says:

1.1 am familiar with the facts in this matter. As one of the two Senior Prosecutors assigned to this case, I have been in routine contact with the United States attorneys assigned to this extradition matter of Martin Shaw Pang. I have also been advised about the actions of the United States government pertinent to the extradition of the defendant.

2. As a member of the United States delegation to Brazil, I obtained direct knowledge of Brazilian Jurisprudence and extradition procedures applicable to the Pang case. The delegation was comprised of United States Ambassador [Melvyn] Levitski [sic:] [Levitsky], U.S. Justice Department Attorneys Gregory Stevens and Thomas Snow, U.S. State Department Legal Advisor Paulo Di Rosa, and myself.

3. On January 23, 1996, the delegation met personally with the Brazilian Minister of Justice, Nelson Jobim. In that meeting, the Minister stated his position, as a representative of the Executive, on the Pang extradition, and requested (and received) my personal assurance that [Mr.] Pang would be taken from his country by March 01, 1996.

4. Justice Minister Jobim stated that Brazil has no objection to our prosecution of [Mr.] Pang on the charges of Murder and Arson. Additionally, the Minister told me that "if I were you, I would prosecute on Murder—The United States system must decide. ”

5. The United States appealed the decision of the Brazilian Court, published February 23, 1996. The Request For Declaration [sic:] [Clarification] (Embargo Declaracao [sic]) was filed March 01, 1996 with the Supreme Court of Brazil, sitting in Brasilia, according to Mr. Di Rosa, Mr. Steven, and the U.S. Embassy in Brazil.

6. I personally spoke with the Deputy Secretary of Justice for Brazil on February 29, 1996. The Secretary [of] Justice ad vised me, yet again, that Brazil does not object to the Murder charges.

7. Also on February 29, 1996, the day the defendant was returned to the United States, a local TV station caught up with Minister Jobim at the University of Texas Law Center. [Justice Minister] Jobim stated for the news camera that "[Mr.] Pang’s extradition was granted, he has been returned, and he is now subject to American Law. ”

8. On March 27, 1996, The Brazilian Supreme court ruled on the Embargo de Declaracao. The Court voted unanimously to deny the request for clarification. The American Embassy of Brazil has informed us of the following specifics. The Court ruled that its original decision required no clarification. Several Justices noted that the decision was procedurally dictated; that is, the Court could not now address the merits of the case, just the technical issue of clarification. Several Justices also expressed regret if the Court’s decision is held to prevent [Mr.] Pang’s prosecution for the consequences of his criminal actions.

Justice Neri [sic] Da Silveira, the Rapporteur for the Pang case, requested the opinion of the Prosecutor-General Ger-aldo Brindeiro at the open-court session. [Mr.] Brihdeiro responded that [Mr.] Pang should be extradited without any restriction for the most comparable and appropriate charges: Felony Murder. Justice Silveira then explained the procedural limitations of the current appeal to matters of clarification— rather than reconsideration of the original judgment—and that a contradiction does not appear. [Justice] Silveira maintained, without contradiction from the other nine Justices, that the Brazilian Court’s decision does not prevent Washington State from trying [Mr.] Pang for the consequences of his alleged crime, the deaths of four firefighters.

In the same proceeding, Justice Resek [sic] spoke at some length. [Justice] Resek [sic] noted that the appeal contained excellent arguments which he would have used were he Washington State’s lawyer. Justice Resek [sic] noted a "grave incongruence” between what the Court had intended, and what would apparently happen as a result of the Court’s decision. Four firefighters had died in Seattle, he said, and their deaths must be taken into consideration in [Mr.] Pang’s trial. [Justice] Resek [sic] then expressed great concern about the presumed leniency of [Mr.] Pang’s sentence should he be convicted only of Arson in the First Degree; he noted that the presumed Brazilian sentence for the same criminal conduct is far greater that [sic] Washington State’s. [Justice] Resek ended by declaring that he has now decided to advocate for revamping the entire extradition process in Brazil.

9. While the Court has not provided its written opinion, A [sic] complete transcription of the court proceedings is expected after April 16, 1996.

10. I am informed by the Justice and State Departments that diplomatic efforts are continuing in an effort to obtain the written consent of the Brazilian executive branch to try the defendant for the charges he was arraigned on, pursuant to the Brazil/United States Treaty.

I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct to the best of my knowledge.

DATED this 05th day of April, 1996.

_[s] Timothy A. Bradshaw

TIMOTHY A. BRADSHAW WSBA No. 17983[²²]

The affidavit and its content was referred to in at least four documents submitted to the trial court by the King County Prosecuting Attorney.²³ However, on November 12, 1996, the State withdrew the affidavit from the Court’s consideration, stating that because the "United States, [sic] has been provided written authorization, a signed document from the Minister of Justice from Brazil, it’s no longer necessary to attempt to prove a non-objection or acquiescence from verbal statements. . . . [W]e’d be happy to withdraw that affidavit from the Court’s consideration on the motion today.”²⁴ Even though this affidavit was previously withdrawn, it was submitted to the Supreme Court as a supporting document on January 8, 1997.²⁵

The Honorable William J. Clinton, President of the United States of America, on May 21, 1996 wrote to the Honorable Fernando Henrique Cardoso, President of the United States of Brazil, seeking his "personal assistance” in overcoming the extradition ruling of the Federal Supreme Court of Brazil.²⁶ His letter stated the "Brazilian Supreme Court, based on technical differences in our laws, has twice issued decisions that permit Pang’s prosecution on charges of arson but not of murder.”²⁷ The letter then stated:

Such a limitation will prevent justice from being done in this case. Attorney General [Janet] Reno has worked closely with members of your Administration, but all avenues of judicial relief have been exhausted. Although some in your government interpret it more restrictively, our extradition treaty may be read to legally permit the Government of Brazil to agree to prosecution of [Mr.] Pang for all charges against him. Our respective legal experts have already prepared a mutually acceptable statement that would serve the purpose. Should you be unable to provide us with such a statement, as an alternative please consider providing a more limited written statement simply saying that your government would not object to [Mr.] Pang’s prosecution on all charges.[²⁸]

On September 26, 1996, Minister of State for Justice Nelson A. Jobim wrote to United States Attorney General Janet Reno stating:²⁹

In response to the inquiry by the Department of Justice, I am writing to Your Excellency to discuss the extradition proceeding of U.S. citizen Martin Shaw Pang.

In Brazil, as in the United States of America, the concept of the separation of the three branches of the national government derives from the text of the Federal Constitution itself. Under this system, the Judicial Branch alone is responsible for interpreting any legal instrument in force in the country, including those derived from international agreements and treaties (Article 102(III)(b) of the Federal Constitution), which, once incorporated into the domestic legal system, are equivalent to federal statutes (Article 105(III)(a) of the Federal Constitution).

The exclusive jurisdiction of the Federal Supreme Court to process and rule on any extradition request by a foreign State derives, in turn, from Article 102(I)(g) of the Federal Constitution. Decisions granting or denying extraditions may not be appealed, and the Executive Branch may not limit or make comments of any kind regarding the content or scope of rulings handed down by that Court, which is the highest authority of an independent branch of government. Consequently, any interpretive statement the Executive Branch might make would be unenforceable.

As for your concern regarding possible limits on the requesting State’s right to punish vis-á-vis the extradited defendant, it should be emphasized, on the basis of fundamental precepts of public international law, that legally binding international acts are the only legal instrument capable of binding two or more sovereign States together. Thus, provided that the terms of the Treaty of Extradition between Brazil and the United States of America of January 13, 1961, are respected, it will be incumbent upon the justice system of the United States of America to establish a suitable punishment for the crime of arson in the first degree, resulting in four deaths and the consequences thereof, under U. S. law. It goes without saying that the precise interpretation of this language, used by the Brazilian court in its decision, and the determination of how it might best be adapted to U.S. law, are for the justice system of your country to decide.

Very truly yours,

[Signature]

Nelson A. Jobim Minister of State for Justice

On October 25, 1996, the King County Prosecuting Attorney filed a second amended information. Most significantly, it changed the wording of the charge of arson in the first degree in Count V of the amended information to include reference to subsection (d) of the arson statute and to add new assertions. It states:

I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington, do accuse MARTIN S. PANG of the crime of Arson in the First Degree, committed as follows:

That the defendant MARTIN S. PANG in King County, Washington on or about January 5, 1995, did knowingly and maliciously and with intent to collect insurance proceeds cause a fire or explosion on property valued at ten thousand dollars located at 811 Seventy [sic] Avenue South, Seattle (the Mary Pang Warehouse), which was manifestly dangerous to human life, including firemen;

Contrary to RCW 9A.48.020(l)(a) and (d), and against the peace and dignity of the State of Washington![³⁰]

Other changes in the second amended information included the order of the counts. Count I was assigned to the charge of arson in the first degree and Counts II-V were assigned to the charges of murder in the first degree. There was also deletion of the phrase "together with another” in the charges of murder in the first degree, thus making Petitioner Pang solely responsible.

By letter of October 29, 1996, President Cardoso responded to President Clinton’s letter of May 21, 1996, stating that in Brazil the executive branch could not alter the scope of the extradition decision of the Federal Supreme Court.³¹ The letter stated:

Despite the personal interest I took in the issue, the consideration of the alternatives at hand clearly indicated that room for action by the Executive branch is very limited, since a decision has already been taken by the Supreme Court.

I have referred the case back to Minister of Justice Nelson Jobim, who recently wrote to Attorney General Janet Reno on the subject. I understand his letter provides the American government with a broad and clear picture of the Brazilian legal position on the issue![³²]

On November 12, 1996, the Honorable Larry A. Jordan, King County Superior Court, denied a motion by Petitioner Martin Shaw Pang to dismiss or sever the murder charges from the arson charge which Petitioner urged was required by the limitation in the extradition order issued by the Federal Supreme Court of Brazil and denial of the appeal by the United States of America for clarification. In rendering his decision, Judge Jordan stated "it appears to this Court reasonably clear that Brazil did not extradite for felony murder.”³³ However, he held that because of Brazil’s implicit waiver, Petitioner Pang lacked standing to assert a violation of Article XXI of the Treaty in his effort to limit his prosecution to arson in the first degree. In denying Petitioner Pang’s motion, Judge Jordan stated in part:

Now, the response by Minister Jobim certainly is not an express agreement or express waiver as that term is used in law. However, his conduct and his words in my judgment, are an implicit waiver or a consent or assent by words or conduct. By not objecting and by communicating as he did in the last paragraph and last sentence, stating that the determination of how it best be adapted to U.S. law, it seems to this Court is tantamount to a waiver of the provision of Article XXI[³⁴] of the Treaty.

I conclude and find that on this record, because of that implicit waiver that Mr. Pang lacks standing to assert a violation of Article XXI and he may be tried for all counts, includ ing the four counts of murder, and that this Court has jurisdiction![³⁵]

The order denying Petitioner’s motions, signed by Judge Jordan on January 13, 1997, reads in its entirety:

The court, having considered the filed motion, memoranda, exhibits and arguments by defense counsel, in support of the motion to dismiss, and by the State, in opposition to the motion to dismiss, and having conducted independent legal research, hereby enters the following finding and order:

The court has jurisdiction over the defendant on all counts in the Second Amended Information. The defendant’s motion to dismiss Counts II-V of the Second Amended Information is denied for the reasons articulated in the court’s oral ruling of November 12, 1996.

DONE IN OPEN COURT this 13 day of January, 1997.

_[s] Larry A. Jordan

THE HONORABLE LARRY JORDAN

SUBMITTED BY:

Browne & Ressler Attorneys for Martin Shaw Pang

_[s] John H. Browne

JOHN HENRY BROWNE WSBA #4667

_[s] M. Timothy Dole

M. TIMOTHY DOLE WSBA #25372

COPY RECEIVED; AS TO FORM:

Deputy Prosecuting Attorneys for King County

_[no signature]

TIMOTHY A. BRADSHAW WSBA #17983

_[no signature]

MARILYN B. BRENNEMAN WSBA #10700

[no signature]

STEPHEN P. HOBBS WSBA #18935[³⁶]

By letter of January 14, 1997, Dr. Celso Spitzcovsky and Dr. Roberto B. Dias (da Silva) wrote to Brazil Justice Minister Jobim on behalf of Petitioner Pang, the letter stating in part:³⁷

Also added to the American case was an affidavit of Timothy A. Bradshaw, on behalf of the King County Prosecutor’s Office, in which a conversation with Your Excellency is related, with the following content:

"The Justice Minister Jobim affirmed that Brazil has no objection to our prosecution of [Mr.] Pang on the charges of homicide and arson. Additionally, the Minister told me, 'If I were you, I would prosecute on homicide—the justice system of the United States should decide.’ ”

On November 12, 1996, adopting the theory of the Prosecutor’s Office, Judge Larry A. Jordan interpreted the fourth paragraph of the letter that Your Excellency forwarded to the Attorney-General as implicit permission, from the Brazilian Executive Branch to the American justice system, to transgress Article 21 of the Treaty of Extradition and Additional Protocol between Brazil and the U.S.A.—ratified by Brazil on August 25, 1964—thus permitting a violation of the extradition order issued by the Federal Supreme Court)[³⁸]

By letter of February 26,1997, Brazil Minister of Justice Jobim responded to the January 14, 1997 letter from Dr. Spitzcovsky and Dr. Dias (da Silva) stating:

With reference to the Fax dated last January 14th, where you comment on the extradition of the North-American citiz- ien [sic] Martin Shaw Pang, I’d like to inform you that at no time did I provide any type of interpretation on the content and reach of the decision passed by the Federal Supreme Court. Thus, I ratify all the words used in said correspondence, its only objective being to clarify to Ms. Janet Reno, Attorney-General of the United States, some aspects of the Brazilian Constitutional system.

3. [sic] Fd like to stress once again that the criteria in judging the case, in light of the Treaty of Extradition currently used between the two countries and the decision of the Federal Supreme Court on extradition, are the exclusive interpretation of the North-American Judicial System, which must apply the norm to the concrete case.

Sincerely,

[Signature illegible]

Nelson A. Jobim

State Ministry of Justice[³⁹]

On December 4,1996, Petitioner filed a motion for direct discretionary review by this Court, which we granted on February 6, 1997.

DISCUSSION

Applicable Washington Law

Petitioner Martin Shaw Pang is now charged in the King County Superior Court by Second Amended Information in Count I with arson in the first degree, a class A felony, under RCW 9A.48.020(l)(a) and (d) and in Counts II-V with four counts of murder in the first degree, a class A felony, under RCW 9A.32.030(l)(c).

RCW 9A.48.020(l)(a) and (d) states in part:

(1) A person is guilty of arson in the first degree if he knowingly and maliciously:

(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen; or

(d) Causes a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds.

(2) Arson in the first degree is a class A felony.

RCW 9A.32.030(l)(c) states in part:

(1) A person is guilty of murder in the first degree when:

(c) He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first or second degree, or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants: Except that in any prosecution under this subdivision (l)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

(1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

(2) Murder in the first degree is a class A felony.

(Emphasis added.)

Under the Sentencing Reform Act of 1981, RCW 9.94A.310, arson in the first degree has a seriousness score of VIII. If convicted of that crime, Petitioner, with an offender score of zero, under the guidelines would be subject to a standard sentence range of 21 to 27 months. However, under RCW 9.94A.390 a sentencing court may in its discretion depart from the guidelines and impose an aggravated exceptional sentence above the standard range if statutory criteria are met and the sentencing court identifies them:

The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to he exclusive reasons for exceptional sentences.

(2) Aggravating Circumstances

(a) The defendant’s conduct during the commission of the current offense manifested deliberate cruelty to the victim.

(d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

(i) The current offense involved multiple victims or multiple incidents per victim;

(ii) The current offense involved attempted or actual monetary less substantially greater than typical for the offense;

(iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or

(iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

(i) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

(j) The defendant’s prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter as expressed in RCW 9.94A.010.

Under RCW 9A.20.021 the maximum sentence Petitioner Pang could receive if he is found guilty of arson in the first degree, a class A felony, is "confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine[.]” This was a factor considered by the Federal Supreme Court of Brazil in its decision on extradition.

Standing

(1) Does Petitioner Pang have standing to object to violation by the State of Washington of the terms of the order on extradition issued by the Federal Supreme Court of Brazil?

The State argues that Petitioner Pang does not have standing to assert any postextradition limitations on his prosecution because the Brazilian Executive, through Minister of Justice Nelson A. Jobim, does not object to King County prosecuting Petitioner on four counts of murder in the first degree. The State correctly recognizes the exception to the doctrine of specialty which allows the requesting state to prosecute an accused for a crime other than that for which the accused was extradited when the asylum state consents.⁴⁰ However, in the absence of that consent by the asylum state, an extradited person may raise any objections to postextradition proceedings which might have been raised by the rendering country.⁴¹

The rule in at least three United States circuit courts is that an extraditee has standing "to raise any objections which the requested nation might have asserted,” subject to the limitation that "the requested nation may waive its right to object to a treaty violation and thereby deny the defendant standing to object to such action.”⁴² At least four other circuits have left the question of standing unanswered, with some indicating approval of the prevailing rule.⁴³

The State also asserts that a minority of United States circuit courts deny standing absent affirmative protest by the surrendering State. However, this purported split in the circuits is illusory. Two of the three cases the State cited for this proposition are not standing cases at all, but were resolved against the extraditees on the merits.⁴⁴ The third case merely noted the defendant’s standing was questionable before reaching the merits.⁴⁵

The State urges this Court to find that Brazil’s Execu tive, through Minister of Justice Nelson A. Jobim, "implicitly consented” to prosecution of Petitioner Pang by the State of Washington on four counts of murder in the first degree. We agree with the rule expressed in Na-john that only express consent to prosecution will be considered a waiver of the doctrine of specialty.⁴⁶ The letter from Brazil Minister of Justice Jobim to United States Attorney General Janet Reno cannot logically be interpreted as either an implicit waiver or an explicit waiver. The subsequent letter of February 26, 1997 from Minister Jobim unequivocally explains the meaning and intent of his letter to Attorney General Reno. It completely contradicts the interpretation urged by the. State. That letter states in part:

I’d like to inform you that at no time did I provide any type of interpretation on the content and reach of the decision passed by the Federal Supreme Court. Thus, I ratify all the words used in said correspondence, its only objective being to clarify to Ms. Janett [sic] Reno, Attorney-General of the United States, some aspects of the Brazilian Constitutional system.[⁴⁷]

While some United States circuit courts have questioned whether an extraditee has standing to assert limitations on post-extradition prosecution, and other courts have declined to address the issue, no court has dismissed such a claim because an extraditee did not have standing. The only firm decisions on this issue agree that an extraditee may raise any objection the surrendering State could make, as long as that country has not waived its right to object.⁴⁸ From the entire record in this case, we cannot conclude that the United States of Brazil has said, done or implied by words, action or inaction anything which would require this Court to deny Petitioner Pang the right to make post-extradition objections to his prosecution by the State of Washington in violation of the conditions of his extradition from Brazil. We conclude that Petitioner Pang does have standing to assert limitations on his post-extradition prosecution in King County.

Waiver

(2) Did the United States of Brazil explicitly or implicitly waive any objection it could have made to prosecution by the State of Washington of Petitioner Pang for murder in the first degree contrary to the specific terms of the extradition order issued by the Federal Supreme Court of Brazil?

The trial court concluded that the United States of Brazil, by not objecting when it had numerous opportunities to do so, "implicitly waived objection,” thereby defeating Petitioner Pang’s standing.⁴⁹ The State urges this Court to adopt that implicit waiver rationale, arguing that Justice Minister Jobim’s letter of September 26, 1996 to Attorney General Reno indicates that Brazil does not object to Petitioner Pang being prosecuted for four counts of murder in the first degree. Nothing in the entire record before this Court supports such a conclusion. We reject it as being completely unsound and totally contrary to the record.

The United States of Brazil has from the outset expressed its position that Petitioner Pang should not be charged with murder in the first degree by the State of Washington. The Federal Supreme Court of Brazil fully considered and unequivocally rejected extradition of Petitioner on the murder charges as requested by the State of Washington. That position was reaffirmed when the court uncategorically rejected the appeal filed by the United States and the motion for clarification filed by the State of Washington. Despite repeated requests through diplomatic channels, Brazil has not only affirmatively denied permission to charge Petitioner with murder, but its President and Minister of Justice affirmatively declined in no uncertain terms the request of President Clinton that Brazil waive its right to object to prosecution of Petitioner Pang by the State of Washington for murder in the first degree following the extradition order.

The State’s insistence that Justice Minister Jobim waived objection on behalf of Brazil to the State of Washington charging Petitioner Pang with murder distorts the facts established in this case. The letter from Minister Jobim to Attorney General Reno merely reiterated that Petitioner Pang was extradited to stand trial "for the crime of arson in the first degree, resulting in four deaths and the consequences thereof under U.S. law.”⁵⁰ This is only a portion of the words used in the extradition order issued by the Federal Supreme Court of Brazil. In that same statement the Federal Supreme Court of Brazil continued its words to specifically exclude "the additional charge of four counts of first-degree murder.”⁵¹

From a reading of the complete series of opinions from the Federal Supreme Court of Brazil it is evident beyond question that the point of disagreement between the majority and the dissenting minority was on the question whether the extradition order would exclude punishment beyond the 30-year maximum under Brazilian law or whether the order would allow the maximum punishment

of life imprisonment for arson in the first degree as allowed under Washington law.⁵²

We are not convinced an implied waiver, even if made, would overcome the standing of Petitioner Pang to object in this case.⁵³ The United States Court of Appeals for the Ninth Circuit has held that an express waiver of objection does divest an extraditee of standing.⁵⁴ We conclude from the record in this case that Brazil has not expressly consented to nor implicitly or explicitly waived objection to the State of Washington charging Petitioner with murder in the first degree. We therefore conclude that Petitioner Pang does have standing to object.

Specialty Doctrine

(3) Does the "specialty doctrine” in international extradition law prohibit the State of Washington from prosecuting Petitioner Pang for crimes specifically excluded in the extradition order?

The United States Court of Appeals for the Ninth Circuit has stated "We review de novo whether extradition of a defendant satisfies the doctrines of 'dual criminality’ and 'specialty.’ ”⁵⁵ The specialty doctrine has been explained:

The requested state retains an interest in the fate of a person whom it has extradited, so that if, for example, he is tried for an offense other than the one for which he was extradited, or is given a punishment more severe than the one applicable at the time of the request for extradition, the rights of the requested state, as well as the person, are violated.[⁵⁶]

Under international law, the "specialty doctrine” generally prohibits a requesting State from prosecuting an ex-traditee "for an offense other than the one for which surrender was made.”⁵⁷ This doctrine "is designed to prevent prosecution for an offense for which the person would not have been extradited.”⁵⁸

" 'As a matter of international comity, "[t]he 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.” ’ ”⁵⁹ "To guarantee limited prosecution by nations seeking extradition of persons from the United States, the United States has guaranteed, pursuant to the treaty, that it will honor limitations placed on prosecution in the United States.”⁶⁰

In United States v. Rauscher,61 the United States Supreme Court addressed the question whether the extradition treaty between England and the United States prohibited prosecution of the defendant for a crime other than that for which he was extradited. This was the first case in which the Supreme Court recognized the specialty doctrine. In that case an American merchant ship officer had been extradited from Great Britain, under an extradition treaty, to be charged with murder of a crew member. He was subsequently convicted of assault and inflicting cruel and unusual punishment, neither of which were listed as extraditable offenses in the treaty. The Court held the defendant could be tried only for the offense "with which he is charged in the extradition proceedings, and for which he was delivered up.”⁶²

The Court in Rauscher was guided by principles of comity which prevailed in the absence of treaties, under which a receiving country would not prosecute a fugitive for any offense other than those for which the fugitive had been surrendered by the asylum country.⁶³ The Court rejected the argument that the treaty did not expressly limit the offenses that could be charged by the requesting country.⁶⁴ The Court reasoned that there was no indication the treaty intended to depart from principles of comity.⁶⁵

The Supreme Court concluded that the treaty, by listing certain extraditable offenses, implicitly excluded the right of extradition for any other offenses.⁶⁶ The Court stated: "[A] person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition.”⁶⁷ The Court based its conclusion upon the terms and history of the treaty; extradition practices of states; case law; and the writings of jurists. In part, the court considered the Revised Statutes §§ 5272, 5275, which dealt with this country’s roles as both requested state and requesting state in extradition proceedings. Section 5275 is now codified in 18 U.S.C. § 3192 and differs only in that the words "crimes or offences” have been replaced with the word "offenses.” It provides as follows:

Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any offense of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or the militia thereof, as may be necessary for the safe-keeping and protection of the accused.[⁶⁸]

In United States v. Alvarez-Machain the Supreme Court noted that federal statutes impose the doctrine of specialty upon all extradition treaties to which the United States is a party.⁶⁹

Under Rauscher, for an extradited defendant to be charged with a crime, that crime must be specified in the treaty (the approval of which is within the sole discretion of the asylum state), and be included in the extradition petition (the content of which is within the sole discretion of the requesting state). The defendant has the right to "be tried only for the offence with which he is charged in the extradition proceedings and for which he was delivered up.”⁷⁰ "It is unreasonable that the country of the asylum should be expected to deliver up such a person to be dealt with by the demanding government without any limitation, implied or otherwise, upon its prosecution of the party.”⁷¹ The doctrine of specialty was not explicitly stated in the treaty between the United States and Great Britain. The court in Rauscher interpreted the treaty with consideration of the specialty doctrine which had previously been recognized in international law.⁷²

The Court examined the treaty and the history of relations between the United States and Great Britain to determine whether the parties, in the absence of express incorporation, nevertheless intended the doctrine of specialty to be part of the treaty.⁷³ Under Rauscher the specialty doctrine may be implied where a treaty is silent on the issue and there is no reason to assume the signatory nations did not abide by the principles of comity.

Petitioner Pang argues that, because the extradition order specifically excluded the charges of murder in the first degree requested by the State of Washington, under the specialty doctrine the State may not prosecute him on these charges. He argues that under Rauscher the specialty doctrine is implied in every treaty.⁷⁴

The State argues that any limitations on post-extradition prosecution are defined only by the terms of the treaty and the doctrine of specialty applies only when it is expressly incorporated into the terms of the treaty. In determining whether there has been a violation to the specialty doctrine, courts have consistently examined the terms of the treaty for any limitations on prosecution.⁷⁵ The United States Court of Appeals for the Ninth Circuit observed in a recent case that "[w]e look to the language of the applicable treaty to determine the protection an extradited person is afforded under the doctrine of specialty.”⁷⁶

In this case, the doctrine of specialty is incorporated into the terms of the Treaty of Extradition Between the United States of America and the United States of Brazil (Treaty) through Article XXI which provides:⁷⁷

A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request, nor may he be re-extradited by the requesting State to a third country which claims him, unless the surrendering State also agrees or unless the person extradited, having been set at liberty within the requesting State, remains voluntarily in the requesting State for more than 30 days from the date on which he was released. Upon such release, he shall be informed of the consequences to which his stay in the territory of the requesting State would subject him.

This provision, read in conjunction with Articles I and II, requires that the crime must be enumerated in the treaty and must satisfy the doctrine of dual criminality, thus incorporating the doctrine of specialty into the Treaty. Because the doctrine is codified in federal statute, 18 U.S.C. § 3192, federal law requires acceptance of the requirement of Brazil that an offense must be extraditable under its interpretation of applicable domestic and international law.

The United States Court of Appeals for the Ninth Circuit recognizes that the doctrine of specialty is embodied in all extradition treaties.⁷⁸ That court has recognized Rauscher as providing an "implicit rule of specialty.”⁷⁹ It has also recognized that, under the doctrine of specialty, an extradited person may be prosecuted only for offenses specified in the order of extradition.⁸⁰

The Federal Supreme Court of Brazil specifically "exclude[d] from the grant of extradition the charges of murder in the first degree.”⁸¹ The Court

granted extradition without any restriction as to the possibility of life imprisonment; but only on the crime of first degree arson with the results it produced (four deaths) and all the consequences thereof pursuant to United States law without however, the added charge of four counts of murder in the first-degree.[⁸²]

After considering the appeal for clarification from the United States, the Federal Supreme Court of Brazil unanimously denied it, stating,

The absence of any doubt or obscurity as regards the denial of the extradition with respect to the charges of the four crimes of murder in the first degree is demonstrated in the terms of the decision, which did not consider the facts, as described in the request, as characterizing independent crimes of arson in the first degree and murder in the first degree.[⁸³]

King County Superior Court Judge Jordan in his oral decision stated, "it appears to this Court reasonably clear that Brazil did not extradite for felony murder.”⁸⁴ He was absolutely correct in that conclusion. But he was in error in his conclusion that Brazil had "implicitly waived” any objection to the State of Washington ignoring the order on extradition. Under the treaty and the doctrine of specialty, King County may not prosecute Petitioner Pang for any crime but arson in the first degree as specified in the extradition ruling by the Federal Supreme Court of Brazil. "The doctrine of specialty is satisfied if the extraditing country honors the limitations placed on the prosecution by the surrendering state.”⁸⁵

Extradition Treaty

(4) Does the Extradition Treaty between the United States of America and the United States of Brazil prohibit the State of Washington from prosecuting Petitioner Pang for crimes not authorized in the extradition order?

International law is incorporated into our domestic law.⁸⁶ Treaties are the supreme law of the land. They are binding on the states as well as the federal government. ⁸⁷ Courts must interpret treaties in good faith.⁸⁸ In the 1907 case of Johnson v. Browne⁸⁹ the United States Supreme Court stated:

While the escape of criminals is, of course, to be very greatly deprecated, it is still most important that a treaty of this nature between sovereignties should be construed in accordance with the highest good faith, and that it should not be sought, by doubtful construction of some of its provisions, to obtain the extradition of a person for one offense and then punish him for another and different offense. Especially should this be the case where the government surrendering the person has refused to make the surrender for the other offense, on the ground that such offense was not one covered by the treaty.[⁹⁰]

We adopt that statement as appropriate declaration of good faith which our courts must maintain in interpreting the terms and conditions of an extradition proceeding between signatory nations to a treaty.

The right "to demand and obtain extradition of an accused criminal is created by treaty.”⁹¹ The treaty must ordinarily list the offense complained of in a request for extradition as an extraditable offense.⁹² Additionally, under the doctrine of dual criminality, an accused person may be extradited only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both requesting and asylum states.⁹³ The doctrine of dual criminality is specifically incorporated into the Treaty between the United States and Brazil through Article I, which states:

Each Contracting State agrees, under the conditions established by the present Treaty and each in accordance with the legal formalities in force in its own country, to deliver up, reciprocally, persons found in its territory who have been charged with or convicted of any of the crimes or offenses specified in Article II of the present Treaty and committed within the territorial jurisdiction of the other, or outside thereof under the conditions specified in Article IV of the present Treaty: provided that such surrender shall take place only upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his commitment for trial if the crime or offense had been there committed.[⁹⁴]

Article II of the Treaty states in part:

Persons shall be delivered up according to the provisions of the present Treaty for prosecution when they have been charged with, or to undergo sentence when they have been convicted of, any of the following crimes or offenses:

1. Murder (including crimes designated as parricide, poisoning and infanticide, when provided for as separate crimes); manslaughter when voluntary.

7. Arson. .[⁹⁵]

Article XI of the Treaty provides that:

The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the domestic law of the requested State, and the person whose extradition is desired shall have the right to use such remedies and recourses as are authorized by such law.[⁹⁶]

The Federal Supreme Court of Brazil, the highest court in the United States of Brazil, has rendered its decision in good faith compliance with extradition procedures in the Treaty. "[D]etermination of whether a crime is within the provisions of an extradition treaty is within the sole purview of the requested state.”⁹⁷

We agree with the United States Court of Appeals for the Ninth Circuit in its interpretation of international treaty law. From the extensive record in this case, we cannot conclude that the Federal Supreme Court of Brazil misinterpreted its own laws in rendering its decision on extradition of Petitioner Pang under the Treaty. We conclude without question that under the Treaty, Brazil, as the requested state, has sole authority to determine whether a particular offense is extraditable.

The Treaty provides that "[a] person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request.”⁹⁸

The State argues it requested Petitioner’s extradition on one count of arson in the first degree and four counts of murder in the first degree and reasons there is no violation of the Treaty because Petitioner is only being prosecuted for those offenses. Petitioner Pang argues that the semantic distinction between the Treaty in this case and those limiting prosecution to offenses "for which extradi tion was granted” is not meaningful. Two courts have affirmed convictions on charges other than those for which extradition was granted because the express language in the treaties in those cases allowed it.

In Fiocconi v. Attorney General, the United States Court of Appeals for the Second Circuit denied habeas corpus relief to an extraditee who had been convicted of crimes other than those for which extradition was granted.⁹⁹ The court examined the applicable United States-Italy extradition treaty which provided that "the person . . . delivered up for the crimes enumerated . . . shall in no way be tried for any . . . crime, committed previously to that for which his . . . surrender is asked.”¹⁰⁰ The court observed:

If the countries had intended that the requesting government could not try the accused for any crime committed before the time of his surrender other than the crime for which he was extradited, they could have accomplished this by adopting one of the standard clauses to that end![¹⁰¹]

In United States v. Sensi the defendant was convicted of charges other than those for which he was extradited.¹⁰² The United States Court of Appeals for the District of Columbia upheld the convictions for the reason that the United States-United Kingdom Treaty only prohibited prosecution for offenses other than those "established by the facts in respect of which his extradition has been granted.”¹⁰³ The court reasoned that, although the crimes charged were not those for which extradition was granted, the charges were based upon the same underlying facts and that therefore there was no treaty violation.¹⁰⁴

The United States Court of Appeals for the Ninth Circuit in United States v. Khan ruled to the contrary.¹⁰⁵ The defendant was charged with conspiring to import drugs and with using a communication facility in furtherance of the conspiracy. The United States requested his extradition from Pakistan for trial on both charges. The Pakistani Commissioner directed that the defendant be "surrendered over to the authorities in the U.S.A. for trial under the relevant American Law,” but made no direct reference to the underlying charges.¹⁰⁶ Other documents in the case referred to the conspiracy charge, but not to the communication facility charge. The court held that because Pakistan did not unambiguously agree to extradite the defendant on the communication facility charge, his conviction on that charge must be reversed.¹⁰⁷ The court distinguished Sensi, pointing out that the treaty language in that case did not limit prosecution to those offenses for which extradition was granted. The court noted by contrast that "[t]he operative treaty in [the] case con-tainted] the following language: 'A person surrendered can in no case be [prosecuted] . . . for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place.’ ”¹⁰⁸

(5) Is the State of Washington obligated to follow the de- cisión of the Federal Supreme Court of Brazil which ruled that, as a condition for extraditing Petitioner Pang the State, he can be prosecuted only "for the crime of arson in the first degree resulting in four deaths . . . without the additional charge of four counts of first degree murder ”?

Under all the established facts in this case and the application of international law, treaty law, United States law, Washington law, and common logic, we must give good faith recognition to the lawful determination of the Federal Supreme Court of Brazil, the highest court of that sovereign democracy, that Petitioner Martin Shaw Pang was extradited only for prosecution in the State of Washington for the crime of arson in the first degree, resulting in four deaths, but not for prosecution for the four charges of murder in the first degree. We therefore answer the question in the affirmative.

SUMMARY AND CONCLUSIONS

(1) Petitioner Pang has standing to object to violation by the State of Washington of the terms of the order on extradition issued by the Federal Supreme Court of Brazil. The only firm decisions on the issue of standing agree that an extraditee may raise any objection the surrendering State could make, as long as that country has not waived its right to object. From the entire record in this case, we cannot conclude that the United States of Brazil has said, done or implied by words, action or inaction, anything which would require this Court to deny Petitioner Pang the right to make postextradition objections to his prosecution by the State of Washington in violation of the conditions of his extradition from Brazil.

(2) The United States of Brazil did not explicitly or implicitly waive any objection it could have made to prosecution by the State of Washington of Petitioner Pang for murder in the first degree contrary to the specific terms of the extradition order issued by the Federal Supreme Court of Brazil. We are not convinced an implied waiver, even if made, would overcome the standing of Petitioner Pang to object in this case. We conclude from the record in this case that Brazil has not expressly consented to nor implicitly or explicitly waived objection to the State of Washington charging Petitioner with murder in the first degree. We therefore conclude that Petitioner Pang does have standing to object.

(3) The "doctrine of specialty” in international extradition law prohibits the State of Washington from prosecuting Petitioner Pang for crimes specifically excluded in the extradition order. In this case the doctrine is incorporated into the Treaty through Article XXI. The doctrine of specialty is satisfied if the extraditing country honors the limitations placed on the prosecution by the surrendering state.

(4) The Extradition Treaty between the United States of America and the United States of Brazil prohibits the State of Washington from prosecuting Petitioner Pang for crimes not authorized in the extradition order. Good faith must be maintained in interpreting the terms and conditions of an extradition proceeding between signatory nations to a treaty. We conclude that under the Treaty, Brazil, as the requested state, has sole authority to determine whether a particular offense is extraditable.

(5) The State of Washington is obligated to follow the decision of the Federal Supreme Court of Brazil which ruled that, as a condition for extraditing Petitioner Pang to the State of Washington, he can be prosecuted only "for the crime of arson in the first degree resulting in four deaths .... without the additional charge of four counts of first degree murder.”

We reverse the King County Superior Court which denied the motion of Petitioner Martin Shaw Pang to dismiss or sever four counts of murder in the first degree from one count of arson in the first degree. The trial court erroneously concluded that the record in this case establishes Brazil Minister of Justice Nelson A. Jobim implicitly waived the provisions of Article XXI of the Treaty, thus depriving Petitioner Pang of standing to assert a violation of Article XXI and allowing the State of Washington to proceed to trial on all counts, including the four counts of murder in the first degree. The State may proceed to trial only on Count I of the second amended information which charges Petitioner Martin Shaw Pang with the crime of arson in the first degree alleged to have been committed in King County, Washington on or about January 5, 1995.

Guy, Johnson, Madsen, and Sanders, JJ., concur.

Footnotes

1

See Certification for Determination of Probable Cause, Clerk’s Papers at 4.

2

See Warrant for Arrest, United States District Court Case Number 95-38m, signed by Judicial Officer David E. Wilson on February 3, 1995; see also Arrest Warrant, King County Superior Court Cause Number 95-1-00473-0, signed by Deputy Clerk Bill Stream. The dateline on the warrant states "Witness my hand and Seal this March 3, 1995 day of January, 1995.”

3

Clerk’s Papers at 1-3.

4

See Clerk’s Papers at 4-8.

5

See Record of Surrender of Person Being Extradited, Number 02/96, Clerk’s Papers at 363.

6

Amended Information, Clerk’s Papers at 9-11.

7

See Affidavit in Support of Request for Extradition, King County Cause Number 95-1-00473-0.

8

Id. at 1-17 (exhibits omitted) (emphasis added).

9

Supplemental Affidavit in Support of Request for Extradition, King County Cause Number 95-1-00473-0, at 1-3 (attachments omitted).

10

See Federal Supreme Court of Brazil decision on the Extradition, Number 00006541/120. Opinion Appendix "A.” English translation from original Portuguese. See Clerk’s Papers at 159-211 for opinion in Portuguese.

11

Clerk’s Papers at 321-23 (emphasis added).

12

Letter from the United States Embassy to the Brazil Ministry of Foreign Affairs dated February 22, 1996. RCW 9A.32.030(l)(c) is the Washington statute relating to murder in the first degree.

13

Id.

14

Letter from the Brazil Ministry of Foreign Affairs to the United States Embassy dated February 27, 1996.

15

Id. (italics ours).

16

See Record of Surrender of Person Being Extradited, No. 02/96, Clerk’s Papers at 362-63.

17

See Request for Declaration [sic: Clarification] (Embargo Declaracao [sic]).

18

State’s Answer to Motion for Discretionary Review to the Supreme Court, filed January 8, 1997, Exhibit K.

19

See Appeal for Clarification, - Extradition No. 00006545/122, Clerk’s Papers at 312-316. English translation from the original Portuguese.

20

Id. at 312-16 (emphasis added).

21

Clerk’s Papers at 131-32 (emphasis added).

22

Affidavit of Timothy A. Bradshaw in Support of State’s Response to Motion to Dismiss, Clerk’s Papers at 145-148A (emphasis added).

23

See Memorandum in Opposition to Defendant’s Alternative Motion for Dismissal of Counts 1 through 4; and a Writ of Habeas Corpus, filed April 5, 1996, Clerk’s Papers at 133-43 ("The Brazilian executive branych [sic] has verbally waived Brazil’s specialty rights under the extradition treaty and may elect to provide the United States with a written waiver at any time prior to the trial of this matter.” Clerk’s Papers at 139 (footnote omitted) ("A representative of the Brazilian executive branch has verbally waived the rule [of specialty].” Clerk’s Papers at 141.); see also Memorandum in Opposition to Defendant’s Alternative Motions to Dismiss Counts I-IV; Require an Offer of Proof; Expedite Pre-Trial Hearings and for Discovery, filed July 8, 1996, Clerk’s Papers at 229-48 ("The affidavit outlined formal and personal meetings with Brazilian officials. The affi davit remains true and valid.” Clerk’s Papers at 231. "As was stated at the April 09 hearing, a verbal waiver was in fact obtained.” Clerk’s Papers at 236.); see also State’s Opening Memorandum of Points and Authorities Re: Extradition; the Rule of Specialty; Waiver and Defendant’s Motion to Dismiss Counts 1-4, filed on July 25, 1996, Clerk’s Papers at 374-390 ("The Brazilian government would not object, according to multiple statements made by Justice Minister to members of the U.S. delegation are accurately recited in the previously filed affidavit of Timothy Bradshaw.” Clerk’s Papers at 382); see also Opposition to Motion to Dismiss, filed on Nov. 4, 1996 Clerk’s Papers at 428-64 ("A United States delegation traveled to Brasilia on January 23, 1996 and met with The [sic] Minister of Justice. See filed Affidavit of Tim [sic] Bradshaw.” Clerk’s Papers at 433. "It is interesting to note, however, that the Brazilian executive, through its Minister of Justice (the equivalent of the United States Attorney General) has indicated that it will not object to a decision by the United States to try the defendant for Murder in the First Degree.” Clerk’s Papers at 441.).

24

Hearing Before the Honorable Larry A. Jordan, November 12, 1996, Transcript at 16.

25

See State’s Answer to Motion for Discretionary Review, Exhibit G.

26

Letter from William J. Clinton, President of the United States, to Fernando Henrique Cardoso, President of Brazil, dated May 21, 1996.

27

Id.

28

Id.

29

Letter from Nelson A. Jobim, Minister of State for Justice of Brazil to Janet Reno, United States Attorney General dated September 26, 1996 (emphasis added). English translation from original Portuguese.

30

(Emphasis added.) The first Amended Information did not include the "valued at ten thousand dollars” or the "intent to collect insurance proceeds” which corresponds with RCW 9A.48.020(l)(d).

31

Letter from Fernando Henrique Cardoso, President of Brazil, to William J. Clinton, President of the United States, dated October 29, 1996.

32

Id.

33

Reporter’s Verbatim Report of Court’s Oral Decision, November 12, 1996, at 4.

34

Article XXI states: "A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request, nor may he be re-extradited by the requesting State to a third country which claims him, unless the surrendering State also agrees or unless the person extradited, having been set at liberty within the requesting State, remains voluntarily in the requesting State for more than 30 days from the date on which he was released. Upon such release, he shall be informed of the consequences to which his stay in the territory of the requesting State would subject him.”

35

Reporter’s Verbatim Report of Court’s Oral Decision, November 12, 1996, at 10.

36

Clerk’s Papers at 592-3.

37

See Dr. Spitzcovsky’s and Dr. Dias’ letter of January 14, 1997 to Brazil Justice Minister Jobim, Clerk’s Papers at 654-55. In the letter they state they are in the "capacity of advocates of Martin S. Pang’s interests in Brazil.” This is generally equivalent to "legal counsel” in our State. Clerk’s Papers at 655. English translation from original Portuguese.

38

Id.

39

See Clerk’s Papers at 659 (emphasis added). English translation from original Portuguese.

40

United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986).

41

See United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989).

42

United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir.), cert. denied, 516 U.S. 933 (1995); accord United States v. Fowlie, 24 F.3d 1059, 1064 (9th Cir. 1994), cert. denied, 513 U.S. 1086 (1995); Leighnor v. Turner, 884 F.2d 385, 389 (8th Cir. 1989).

43

See United States v. Saccoccia, 58 F.3d 754, 767 n.6 (1st Cir. 1995) ("[W]hile we take no view of the [standing] issue, . . . the side that favors individual standing has much to commend it.” (citations omitted)), cert. denied, 116 S. Ct. 1322 (1996); see also Casey v. Department of State, 980 F.2d 1472, 1476 n.4 (D.C. Cir. 1992) ("it remains an open question in this circuit whether [the defendant] has 'standing’ to raise his claims after extradition”) (citing United States v. Sensi, 879 F.2d 888, 892 n.1 (D.C. Cir. 1989) (reserving question of standing)); United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992) (declining to address the standing issue); United States v. Herbage, 850 F.2d 1463, 1466 (11th Cir. 1988) ("For purposes of this case, we assume, without deciding, that an individual has standing to allege a violation of the specialty principle.”), cert. denied, 489 U.S. 1027 (1989).

44

Fiocconi v. Attorney Gen., 462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059 (1972) and United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988).

45

Demjanjuk v. Petrovsky, 776 F.2d 571, 584 (6th Cir. 1985) ("The right to insist on application of the principle of specialty belongs to the requested state, not to the individual whose extradition is requested.”) (citing Berenguer v. Vance, 473 F. Supp. 1195, 1197 (D.D.C. 1979)); accord Kaiser v. Rutherford, 827 F. Supp. 832, 835 (D.C. 1993) ("therefore he has no standing to raise this issue. . . . Even assuming, arguendo, that the Plaintiff had standing to assert a claim in this regard, the doctrine of specialty simply requires that the prosecution be based on the same facts as set forth . . . .’’(citations omitted)).

46

See Najohn, 785 F.2d at 1422 (two letters from the Swiss government asking for prosecution and agreeing that the doctrine of specialty be waived); see also United States v. Riviere, 924 F.2d 1289, 1301 n.13 (3d Cir. 1991) ("the waiver was executed by the Dominican Attorney General contemporaneously with the extradition.”)

47

Letter from State Minister of Justice Nelson A. Jobim to Dr. Celso Spitz-cowsky [sic] /Dr. Roberto B. Dias da Silva, dated February 26, 1997, Clerk’s Papers at 659. English translation from original Portuguese.

48

See Puentes, 50 F.3d at 1575; Fowlie, 24 F.3d at 1064; Leighnor, 884 F.2d at 389.

49

Verbatim Report of Court’s Oral Decision at 8-10.

50

Letter from Nelson A. Jobim, Minister of State for Justice of Brazil, to Janet Reno, United States Attorney General, dated September 26, 1996.

51

Summary of Extradition, Clerk’s Papers at 323.

52

See Opinion Appendix "A.” English translation from original Portuguese. See opinions of Justices Néri da Silva, Moreira Alves and Sydney Sanchez.

53

See United States v. Riviere, 924 F.2d 1289 (3d Cir. 1991) (express waiver precluded extraditee’s assertion of treaty rights).

54

United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986).

55

United States v. Khan, 993 F.2d 1368, 1372 (9th Cir. 1993) (citing United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987), cert. denied, 484 U.S. 1042, 108 S. Ct. 773, 98 L. Ed. 2d 859 (1988)); see United States v. Merit, 962 F.2d 917 (9th Cir. 1992).

56

Restatement (Third) op Foreign Relations Law op The United States § 474, Ch. 7, at 557-58 (1987).

57

I. A. Shearer, Extradition in International Law 146 (1971).

58

Restatement (Third) op Foreign Relations Law op the United States § 477 cmt. b (1987).

59

Khan, 993 F.2d at 1373 (citing United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987) (quoting Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir.), cert. denied, 479 U.S. 882 (1986))).

60

United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988).

61

119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886).

62

Rauscher, 119 U.S. at 424.

63

See id. at 419-21.

64

See id. at 422.

65

See id. at 420.

66

See id at 420.

67

Id. at 430.

68

18 U.S.C. § 3192 (1994).

69

504 U.S. 655, 660, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) (citing Rauscher, 119 U.S. at 423).

70

Rauscher, 119 U.S. at 424.

71

Id. at 419.

72

See id.

73

iSee id at 411-12; see also Alvarez-Machain, 504 U.S. at 659 (noting how the court in Rauscher "carefully examined the terms and history of the treaty; the practice of nations in regards to extradition treaties; the case law from the States”).

74

See Rauscher, 119 U.S. 407.

75

See, e.g., United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir.) (citing Treaty on Extradition and Cooperation in Penal Matters, Apr. 6, 1973, U.S.-Uru., art. XIII, P.I.A.S. 10850), cert. denied, 516 U.S. 933 (1995); United States v. Fowlie, 24 F.3d 1059, 1064 n.2, 1065 (9th Cir. 1994) (citing Extradition Treaty Between U.S. and Mex., May 4, 1978, U.S.-Mex., 31 U.S.T. 5059, T.I.A.S. 9656), cert. denied, 513 U.S. 1086 (1995); United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (citing Treaty on Extradition and Cooperation in Penal Matters, Apr. 6, 1973, U.S.-Uru., art. 13, T.I.A.S. 10850), cert. denied, 115 S. Ct. 938 (1995); United States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993) (citing Extradition Treaty, Dec. 22, 1931, U.S.-Pak., art. 7, 47 Stat. 2124); United States v. Levy, 905 F.2d 326, 328 (10th Cir. 1990) (citing Extradition Treaty, June 8, 1972, U.S.-U.K., art. XII(1), 28 U.S.T. 227), cert. denied, 498 U.S. 1049 (1991); Leighnor v. Turner, 884 F.2d 385, 386 T.S. No. 354 (8th Cir. 1989) (citing Treaty Concerning Extradition, June 20, 1978, U.S.-F.R.G., 32 U.S.T. 1485, T.I.A.S. No. 9785); United States v. Sensi, 879 F.2d 888, 895 (D.C. Cir. 1989) (citing Extradition Treaty, June 8, 1972, U.S.-U.K., art. XII, 28 U.S.T. 227, T.I.A.S. 8468); United States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988) (citing Extradition Treaty, June 8, 1972/Oct. 21, 1976, U.S.-U.K., art. XII, 28 U.S.T. 227, T.I.A.S. No. 8468), cert. denied, 489 U.S. 1027 (1989); United States v. Cuevas, 847 F.2d 1417, 1427 (9th Cir. 1988) (citing Treaty on Extradition, U.S.-Switz., May 14, 1900, 31 Stat. 1928, T.S. No. 354, Art. IX), cert. denied, 489 U.S. 1012 (1989); United States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987) (citing Treaty Respecting Extradition, Feb. 15, 1939, U.S.-Monaco, 54 Stat. 1780); United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (citing Treaty on Extradition, May 14, 1900, U.S.-Switz., Art. IX, 31 Stat. 1928, T.S. No. 354); Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d Cir.) (citing Extradition Convention between U.S.-Italy, (1868), Art. III, 15 Stat. 631), cert. denied, 409 U.S. 1059 (1972).

76

Andonian, 29 F.3d at 1435; accord United States v. Diwan, 864 F.2d 715, 721 (11th Cir.) ("[T]he objective of the rule [of specialty] is to insure that the treaty is faithfully observed by the contracting parties. The extradited individual, therefore, can raise only those objections to the extradition process that the surrendering country might consider a breach of the extradition treaty.” (citations omitted), cert. denied, 492 U.S. 921 (1989).

77

15 U.S.T. 2093; T.I.A.S. No. 5691, Article XXI, Clerk’s Papers at 58. See Opinion Appendix "B” for the complete text of the Treaty.

78

See United States v. Verdugo-Urquidez, 939 F.2d 1341, 1351 (9th Cir. 1991).

79

See id. at 1351 n.10.

80

United States v. Baramdyka, 95 F.3d 840, 845 (9th Cir. 1996), cert. denied, 117 S. Ct. 1282 (1997).

81

Summary of Extradition, Clerk’s Papers at 323.

82

Summary of Extradition, Appeal for Clarification, Clerk’s Papers at 314 (emphasis added).

83

Id. (emphasis added).

84

Reporter’s Verbatim Report of Court’s Oral Decision, November 12, 1996, at 4.

85

Andonian, 29 F.3d at 1438.

86

See The Paquette Habana, 175 U.S. 677, 700, 20 S. Ct. 290, 299, 44 L. Ed. 320, 328-29 (1900).

87

See U.S. Const. art. VI, cl. 2; Rauscher, 119 U.S. at 418.

88

See Johnson v. Browne, 205 U.S. 309, 321, 27 S. Ct. 539, 51 L. Ed. 816 (1907); Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, T.S. no. 58 (1980), 81 I.L.M. 679 (1969), entered into force Jan. 27, 1980, Article 31 (although the United States has not ratified this treaty, it is accepted as the authoritative guide to treaty law and practice and declaratory of customary international law, S. Exec. Doc., 92 Cong., 1st Sess. 1 (1971); Marian L. Nash, Contemporary Practice of the United States Relating to International Law, 75 Am. J. Int’l L. 142, 147 (1981)).

89

Johnson, 205 U.S. 309.

90

Id. at 321.

91

Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir.), cert. denied, 479 U.S. 882 (1986).

92

See id. at 791.

93

See id. at 783; see also In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986).

94

15 U.S.T. 2112; T.I.A.S. No. 5691, art. I, Clerk’s Papers at 50. See Opinion Appendix “A.”

95

Id. art. II, at 50- 52.

96

Id. art. XI, at 55.

97

United States v. Van Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987) (citations omitted).

98

Treaty of Extradition Between the United States of America and the United States of Brazil, January 13, 1961, art. XXI, 15 U.S.T. 2093, T.I.A.S. 5691. See Opinion Appendix "B.”

99

462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059 (1972).

100

Id. at 481 (quoting Extradition Convention between U.S. and Italy, 1868, Art. HI, 15 Stat. 631).

101

Fiocconi, 462 F.2d at 481 (citing 1 John B. Moore, A Treatise in Extradition and Interstate Rendition §§ 148-49, at 194-96 (1891)); see e.g., Extradition Treaty, Mar. 19, 1924, U.S.-Bulg., art. IV, 43 Stat. 1886 ("No person shall be tried for any crime or offense other than that for which he was surrendered.”); Treaty Providing for the Extradition of Fugitives from Justice, Apr. 17, 1900, U.S.-Chile, art. VIII, 32 Stat. 1850 ("No person surrendered . . . shall... be triable or tried or be punished for any crime of offense committed prior to his extradition, other than that for which he was delivered up . . . .”); Treaty on Extradition, Dec. 3, 1971, U.S.-Can., art. 12, 27 U.S.T. 983 ("A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted . . . .”).

102

879 F.2d 888 (D.C. Cir. 1989).

103

Id. at 895 (quoting Extradition Treaty, June 8, 1972, U.S.-U.K., art XII, 28 U.S.T. 227, T.I.A.S. 8468).

104

Id. at 895-96.

105

993 F.2d 1368 (9th Cir. 1993).

106

Id. at 1374.

107

Id. at 1375.

108

Id. at 1374 (some alteration in original) (quoting Extradition Treaty, Dec. 22, 1931, art. 7, 47 Stat. 2124).