On March 17, 2021, the DOJ filed under seal a complaint pursuant 18 USC 3184 captioned “In the Matter of The Extradition of Kendrick Taylor Wallace.” In the complaint, filed in the U.S. District Court for the Middle District of Florida, the DOJ stated that Norway “has submitted a formal request through diplomatic channels for the extradition of Kendrick Taylor Wallace, a U.S. citizen.”
Wallace previously served as the Chief Legal Officer, and was also a member of the corporate management team, of Yara International ASA (Yara) (one of the world’s largest producers of mineral fertilizers) and the complaint references that Wallace was convicted of criminal offenses in Norway for bribery schemes involving “a Libyan government official and an Indian government official in connection with negotiations to establish joint venture agreements concerning fertilizer production with state-controlled companies in Libya and India.”
Recently, the court denied the extradition request and dismissed the DOJ’s complaint. (See 2021 WL 2401906).
In setting forth the relevant legal background, the opinion states (internal citations omitted).
“The power to extradite derives from the President’s power to conduct foreign affairs. Extradition, therefore, is an executive, not a judicial, function. The judiciary serves an independent, but limited, review function delegated to it by the Executive and defined by statute. After conducting an extradition hearing, the Court is tasked solely with determining whether the evidence presented is “sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b).” If the evidence is sufficient, the court “makes a finding of extraditability and certifies the case to the Secretary of State.” A court must make this certification where: (1) the judicial officer is authorized to conduct the extradition proceeding; (2) the court has jurisdiction over the fugitive; (3) the applicable treaty is in full force and effect; (4) there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought; and (5) the crimes for which surrender is requested are covered by the applicable treaty.”
The main focus of the court’s opinion was “crimes covered by the extradition treaty” and the opinion states:
“Here, Wallace was convicted of offering, and paying, money, in his capacity as an officer of a public Norwegian company, to the sons of officials in Libya and India in an attempt to secure joint ventures with state-owned companies in those countries. As the Borgarting Court of Appeal in Norway held, Wallace intended the money to secure “an improper advantage” in negotiations regarding the joint ventures, and the money was “in reality” offered to the officials themselves in connection with their positions in the foreign governments and in the state-owned companies. Accordingly, if Wallace’s acts occurred in the United States, he would be in violation the anti-bribery provision of the FCPA.”
The parties however disagreed on lapse of time and statute of limitations issues and the court framed the background and arguments as follows and stated (internal citations omitted):
“Pursuant to Article 7(1)(b) of the Extradition Treaty, “[e]xtradition shall not be granted…[w]hen the prosecution or the enforcement of the penalty for the offense of which extradition is sought has become barred by lapse of time according to the laws of the requesting or requested State.” The parties do not dispute that the term “lapse of time” refers to the applicable statute of limitations. Indeed, for over a century, the term “lapse of time” has been commonly associated with a statute of limitations violation.
The parties disagree as to interpretation of Article 7(1)(b) of the Extradition Treaty as it relates to persons already convicted of an offense. Wallace contends that, regardless of whether he has been convicted, the Extradition Treaty prohibits extradition when the prosecution for the offense fot which extradition is sought has become barred by lapse of time. The United States, however, contends that because Wallace has been convicted, only the statute of limitations for enforcement of the penalty applies.
This Court, like others, is loath to override the position of the United States on matters of extradition. However, this issue requires the Court to interpret Article 7(1)(b), and “[o]n matters of construction, courts have the final word; the views of the Executive, while important, are ‘not conclusive.’” The Court must exercise its “independent duty to interpret treaties—extradition or otherwise—just as [it would] do for any statute, Constitutional provision, or other source of law.”
In interpreting Article 7, the Court begins, as it must, with the text of the Extradition Treaty. If the language of a treaty, as here, is clear and unambiguous, the Court must apply the words of the treaty as written. Article 7(1)(b) clearly states that an “[e]xtradition shall not be granted…[w]hen the prosecution or the enforcement of the penalty for the offense of which extradition is sought has become barred by lapse of time according to the laws of the requesting or requested State.” (Emphasis added). The plain meaning of the words indicate that extradition cannot be granted when, in the alternative, the prosecution or the enforcement of the penalty is barred by a statute of limitations.
The United States’ contrary interpretation requires the inclusion of a condition precedent—whether there has been a conviction—that is absent from the text of Article 7. Courts, however, do not have the authority to add provisions to a treaty. Moreover, when Article 7 is read in context with other parts of the Extradition Treaty, the intent of the signatory nations is more apparent.For example, Article 11 of the Extradition Treaty provides in relevant part:
3. If the request relates to a person charged but not yet convicted, it must also be accompanied by a warrant of arrest issued by a judge…
4. If the request relates to a person who has been convicted but who has not served all of his or her sentence, it must also be accompanied by the judgment of conviction…
There, the United States and Norway expressly agreed that Article 11 applied differently depending on whether the person had been convicted of an offense. In contrast, Article 7 expresses no such agreement. The wording of Article 7, compared to the wording of Article 11, suggests that the drafters did not intend for Article 7 to have a different application depending on whether a person was convicted of an offense.
Even looking beyond the written words of Extradition Treaty, the United States has not offered, and the Court has not uncovered, any evidence from the history of the Extradition Treaty or the negotiations to support the United States’ augmented interpretation. For example, in the Letter of Transmittal from the Department of State to President Jimmy Carter, it merely states:
Article 7 further precludes extradition where prosecution or enforcement of the penalty for the offense for which extradition is sought has become barred by lapse of time according to the laws of the requesting or requested State.
Thus suggesting that the plain meaning of the words in Article 7 required no further explanation.
It is the Court’s “responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.” Therefore, it would be “particularly inappropriate for [this Court] to sanction a deviation from the clear import of a solemn treaty between this Nation and a foreign sovereign, when…there is no indication that application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.” Accordingly, the Court finds that the Extradition Treaty prohibits extradition when either the prosecution or the enforcement of the penalty for the offense of which extradition is sought has become barred by the statute of limitations of either Norway or the United States.
Applying the Statutes of Limitations
The parties agree that Wallace’s prosecution was not time barred by Norwegian law. Norway also explained that, under its law, the sentence imposed on Wallace may be executed up until fifteen years from when it became final on September 15, 2017. Accordingly, neither the prosecution nor enforcement of Wallace’s sentence has become barred by Norwegian law.
The applicable United States statute of limitations provides “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” 18 USC 3282. According to the Supreme Court of Norway, “[t]he criminal acts were committed in 2007 and Wallace was indicted on January 15, 2014, more than five years after the criminal acts were committed. Therefore, the offenses for which extradition are sought would be barred by the United States’ statute of limitations unless such period was tolled or suspended.
The United States suggests that the statute of limitations “may have been tolled… while Norway was seeking evidence from other countries, pursuant to 18 USC 3292. That statute provides:
Upon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court before which a grand jury is impaneled to investigate the offense shall suspend the running of the statute of limitations for the offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.
In support of the application of this tolling statute, the United States offered a statement from Esben Kyhring, Norwegian Senior Public Prosecutor, which indicated that during the period from June 2011 to January 2015, Norway made mutual legal assistance requests to twelve different countries. Accordingly, the Court finds by a preponderance of the evidence that official requests were made to foreign countries. As to the next prong, however, the United States failed to make a showing such that a court could find “that it reasonably appears, or reasonably appeared at the time [each] request was made, that such evidence [of the offense] is, or was, in such foreign country.” The United States offers only vague descriptions of the requests sought, e.g., “company information,” “interview,” and “search and seizure.” With just this showing, a court could not have suspended the running of the statute of limitations, and the United States’ argument that the statute of limitations “may have been tolled” is unavailing.
For the foregoing reasons, the Court finds the evidence presented insufficient to sustain the charges under the provisions of the Extradition Treaty as required by 18 USC 3184. Under Article 7(1)(b) of the Extradition Treaty, Wallace cannot be extradited because the prosecution for the offense of which extradition is sought has become barred by lapse of time according to the laws of the United States, specifically 18 USC 3282(a).”
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