High Court allows extradition to the US for fraud charges meeting Irish minimum gravity thresholds.

Neutral Citation [2015] IEHC 340

THE HIGH COURT

[2011 No. 344 EXT]

IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2012

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

-AND-

PATRICK LEE

RESPONDENT

JUDGMENT of Mr. Justice Edwards delivered on the 23rd day of March, 2015.

1. Introduction

1.1 In these proceedings the United States of America (hereinafter the United States of America or the United States or the U.S.A. or

the U.S.) seeks the extradition of the respondent with a view to placing him on trial to answer an indictment charging 51 counts in

total comprising 29 counts of Wire Fraud in violation of Title 18, United States Code §§ 1343 and 2; 6 counts of Unlawful Monetary

Transaction in violation of Title 18, United States Code §§ 1957 and 2; and 16 counts of Aggravated Identity Theft in violation of

Title 18, United States Code § 1028A.

2. Extradition between Ireland and the U.S.A.: Principal Legal Provisions

2.1 By virtue of the following measures the U.S.A. is a country to which Part II of the Extradition Act 1965, as amended (hereinafter

the Act of 1965), applies.

2.2 On the 13th July, 1983, Ireland signed the Treaty on Extradition between the State and the U.S.A. at Washington D.C.

(hereinafter the “Washington Treaty”). The Washington Treaty was later amended by the Agreement on Extradition between the

United States of America and the European Union, entered into on the 25th of June 2003 (hereinafter “the EU – US Treaty”).

2.3 S. 8 of the Act of 1965, as it applied at the material time, stated:

“8.—(1) Where by any international agreement or convention to which the State is a party an arrangement (in this Act

referred to as an extradition agreement) is made with another country for the surrender by each country to the other of

persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that

effect will be afforded by another country, the Government may by order apply this Part in relation to that country.”

2.4 The Government by means of the Extradition Act 1965 (Application of Part II) Order, 2000 (S.I. 474 of 2000) made an order

pursuant to s. 8(1) of the Act of 1965 applying Part II of that Act to the United States of America. Notice of the making of the said

order was published in An Iris Oifigiúil on the 6th of February, 2001. Part 9 of S.I. 474 of 2000 was subsequently amended, in order to

give effect to provisions of the EU – US Treaty, by the Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 (S.I. 45

of 2010). Notice of the making of this said order was published in An Iris Oifigiúil on the 19th February, 2010.

2.5 Once Part II of the Act of 1965 applies there is a duty on the State to extradite by virtue of s. 9 of that Act, which is in the

following terms:

“9.—Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded

against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person

shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.”

2.6 Section 10 of the Act of 1965, as amended by the Extradition (European Union Offences) Act 2001 (hereinafter the Act of 2001),

deals with extraditable offences and in that regard sets out the requirements that must be met as to correspondence and minimum

gravity. Subsection (1A) rather than subs. (1) applies in the case of “convention countries” i.e., countries designated as such by the

Minister for Foreign Affairs under s. 4 and s. 10, respectively, of the Act of 2001. An s. 4 designation applies the Convention on

simplified extradition between the member states of the European Union drawn up on the basis of Article K.3 of the Treaty of

European Union, by Council Act done at Brussels on 10 March, 1995; and an s.10 designation applies the Convention relating to

extradition between the member states of the European Union drawn up on the basis of the said Article K.3, by Council Act done at

Brussels on 27th September, 1996. The United States of America was designated a convention country for the purposes of both

conventions by the Extradition (European Union Conventions) Act 2001 (Section 4) Order 2001 (S.I. No 43 of 2010) and by the

Extradition (European Union Conventions) Act 2001 (Section 10) Order 2001 (S.I. No 44 of 2010), respectively.

2.7 Accordingly, in so far as s. 10 of the Act of 1965 is relevant to the present case the Court is mainly concerned with subss. (1A),

(3) and (4) which provide:

“10.—(1) [Not relevant]

(1A) Subject to subsection (2A), extradition to a requesting country that is a Convention country shall be granted only in

respect of an offence that is punishable—

(a) under the laws of that country, by imprisonment or detention for a maximum period of not less than one year or by a

more severe penalty, and

(b) under the laws of the State, by imprisonment or detention for a maximum period of not less than 6 months or by a

more severe penalty,

and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of not

less than 4 months or a more severe penalty has been imposed.

(2) [Not relevant]

(2A) [Not relevant]

(3) In this section ‘an offence punishable under the laws of the State’ means—

(a) an act that, if committed in the State on the day on which the request for extradition is made, would constitute

an offence, or

(b) in the case of an offence under the law of a requesting country consisting of the commission of one or more

acts including any act committed in the State (in this paragraph referred to as ‘the act concerned’), such one or

more acts, being acts that, if committed in the State on the day on which the act concerned was committed or

alleged to have been committed would constitute an offence,

and cognate words shall be construed accordingly.

(4) In this section ‘an offence punishable under the laws of the requesting country’ means an offence punishable under

the laws of the requesting country on—

(a) the day on which the offence was committed or is alleged to have been committed, and

(b) the day on which the request for extradition is made,

and cognate words shall be construed accordingly.”

2.8 A request for a person’s extradition is made to the Minister (for Justice and Equality – as he is currently entitled) in the first

instance, and any such request must comply with the formalities prescribed in s. 23 of the Act of 1965 and be accompanied by the

supporting documentation specified in s. 25(1) of that Act.

2.9 Section 23 of the Act of 1965 provides:

“23.—A request for the extradition of any person shall be made in writing and shall be communicated by—

(a) a diplomatic agent of the requesting country, accredited to the State, or

(b) any other means provided in the relevant extradition provisions.”

2.10 Section 25(1) of the Act of 1965 provides:

“25.— (1) A request for extradition shall be supported by the following documents—

(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or,

as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the

procedure laid down in the law of the requesting country;

(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and

place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

(c) a copy of the relevant enactments of the requesting country or, where this is not possible, a statement of the

relevant law;

(d) as accurate a description as possible of the person claimed, together with any other information which will help to

establish his identity and nationality, and

(e) any other document required under the relevant extradition provisions.”

2.11 Under s. 26(1)(a) of the Act of 1965 the Minister is required, upon receipt of a properly communicated request supported by the

required documents, to certify having received the request. Section 26(1)(b) of the same Act (as amended by s. 7 of the Extradition

(Amendment) Act 1994, and as further amended by s. 20 of the Extradition (European Union Conventions) Act 2001) then provides:

“26.—(1)(b) On production to a judge of the High Court of a certificate of the Minister under paragraph (a) stating that a

request referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person

concerned unless a warrant for his arrest has been issued under section 27.”

2.12 Where an arrest warrant has been duly issued pursuant to a request for extradition, the Act of 1965 provides, in s. 26(2)

thereof, that it may be executed by any member of An Garda Síochána in any part of the State. Moreover, s. 26(5) requires that a

person arrested under a warrant issued under s. 26(1)(b) shall be brought as soon as may be before a judge of the High Court.

2.13 This Court’s function and duty in relation to a request for surrender received from a country to which Part II of the Act of 1965

applies is set out at s. 29(1) of that Act, as amended by s. 20 of the Extradition (European Union Conventions) Act 2001, which (to

the extent relevant) is in the following terms:

“29—(1) Where a person is before the High Court under section 26 … and the Court is satisfied that—

(a) the extradition of that person has been duly requested, and

(b) this Part applies in relation to the requesting country, and

(c) extradition of the person claimed is not prohibited by this Part or by the relevant extradition provisions, and

(d) the documents required to support a request for extradition under section 25 have been produced,

the Court shall make an order committing that person to a prison (or, if he is not more than twenty-one years of age, to a

remand institution) there to await the order of the Minister for his extradition.”

3. The Request for Extradition in this Case

3.1 The evidence before the Court establishes that on the 15th August, 2011, a request was made in writing by the United States of

America for the extradition of the respondent for the purpose of placing him on trial to answer an indictment charging 51 counts in

total, comprising 29 counts of Wire Fraud in violation of Title 18, United States Code §§ 1343 and 2; 6 counts of Unlawful Monetary

Transaction in violation of Title 18, United States Code §§ 1957 and 2; and 16 counts of Aggravated Identity Theft in violation of

Title 18, United States Code § 1028A. The request was communicated to the Minister by the Embassy of the United States of

America in Dublin. The Court is satisfied in the circumstances that it was duly communicated by a diplomatic agent of the requesting

country, accredited to the State.

3.2 The Court has had produced to it a certificate of the Minister for Justice and Equality, dated the 21st April, 2012, in which he

certifies that a request has been duly made by and on behalf of the United States of America, and received by him, for the extradition

of the respondent. The Court is satisfied that the said certificate was made under, and is sufficient for the purposes of, under s.

26(1)(a) of the Act of 1965.

3.3 The evidence before the Court further establishes that the applicant then applied to the High Court pursuant to s. 26(1)(b) of the

Act of 1965, as amended, seeking a warrant for the arrest of the respondent; that the said application was successful and that such

a warrant was issued by me, Edwards J., on the 27th April, 2012.

3.4 The evidence further establishes that in execution of that warrant the respondent was subsequently arrested by Sgt. James

Kirwan, a member of An Garda Síochána, at Naas Road, Dublin 22 on the 9th of May 2012. He was then brought before the High Court

and was duly remanded from time to time, initially in custody, and later on bail, pending a s. 29 hearing in these proceedings, and he

has duly appeared before the High Court and has answered his bail on all occasions on which he was required to do so.

3.5 Counsel for the respondent has informed the Court that no issue is taken as to the identity of the respondent.

3.6 The matter was before the Court for the purposes of an s. 29 hearing on the 19th February, 2014, the 21st February, 2014, the

12th March, 2014, the 13th March, 2014, and the 12th May, 2014, following which the Court reserved its judgment, which it now

delivers.

4. Broad Outline of the Case against the Respondent

4.1 A prècis of the case against the respondent is set out in an affidavit sworn in support of the request for extradition with which

the Court is presently concerned by Ms. Sandra S. Bower, Assistant United States Attorney for the District of Massachusetts on the

26th April, 2011. The said affidavit and its accompanying exhibits are receivable in evidence without further proof pursuant to s. 37(1)

of the Act of 1965, the Court being satisfied that they have been signed by an officer of the requesting country and are certified

under the signature of Lystra G. Blake, Associate Director of the Office of International Affair, Criminal Division, U.S. Department of

Justice, Washington D.C. There is another affidavit, with accompanying exhibits, of the said Sandra Bower, described as her “second

supplemental affidavit” and sworn on the 11th March, 2014. This affidavit and its exhibits are also authenticated, certified and sealed

in a similar fashion.

4.2 Ms. Bower states the following at paragraphs 3 to 12 inclusive of her affidavit of the 26th April, 2011:

“3. In the course of my duties, I have become familiar with the charges and evidence in the case of United States v.

Patrick Lee, Criminal No.1O-CR-10386-JLT (D. Mass.) These charges follow an investigation by the United States Secret

Service and the United States Internal Revenue Service which revealed that, from in or about July 2005 continuing

through in or about May 2007, the defendant, Patrick Lee (“Lee”), a dual citizen of Ireland and the United States,

participated in a mortgage fraud scheme.

4. In summary, Lee and others bought multi-family properties in Massachusetts and converted them into condominiums;

“straw buyers” (i.e., individuals who take title to real estate and in whose name mortgage loans are secured for those

purchases, but who have no intention to live in the properties or to repay the mortgage loans) were recruited to purchase

the condominium units; and lenders issued mortgage loans based on false information about the straw buyers and the

properties, including forged real estate appraisals prepared by Lee. After the transactions closed, Lee and his associates

shared in the proceeds of the loans, the mortgages went unpaid and the properties were foreclosed. Lee received about

$1 million in gross receipts for his participation in the scheme.

SUMMARY OF THE FACTS OF THE CASE

5. Investigators learned during the investigation that Lee and others bought multiple-family buildings in South Boston and

Dorchester, Massachusetts, and converted them into condominiums. Other participants in the scheme recruited individuals

to act as straw buyers to buy the condominium units as so-called “investment properties.” The recruiters offered to pay

the straw buyers in exchange for their personal information (e.g., name, date of birth, Social Security Number,

employment information) and agreement to sign the necessary documents. The promised payment was typically $5,000 -

$10,000 at the closing and an additional $5,000- $ 10,000 when the property was resold. The recruiters also promised the

straw buyers that they would not have to pay anything, including any down payment, mortgage payments, taxes, or

maintenance expenses; that others would find tenants to rent the units; and that the tenants’ rent payments would be

collected and used to pay the mortgages until the units were resold. The straw buyers typically were assured that the

“investment properties” would be resold in 6 to 12 months.

6. After the straw buyers agreed to participate, Lee and others engaged certain mortgage brokers, some of whom were

knowing participants in the scheme, to prepare mortgage loan applications that contained false information, including that

the borrower intended to occupy the property as his/her primary residence when in fact the straw buyer, who often had

never seen the property, had no intention of living there. Other false representations in connection with the loans

concerned, for instance, the borrower’s residence, employment, income, and/or assets.

7. Lee prepared the appraisals for the properties. Although Lee had incorporated a business, Northeast Value Consultants,

Inc., purportedly to both appraise and acquire real estate, he was not a fully licensed appraiser under Massachusetts law.

Because Lee was only a trainee appraiser, he was not authorized to sign any appraisals without the accompanying

signature of a licensed supervisory appraiser. Lee, however, prepared the appraisals alone, without the assistance of a

supervisory appraiser. Then, instead of signing his own name (either with or without an accompanying signature from a

supervisory appraiser), on each appraisal Lee forged the signature of a fully licensed appraiser named Brian O’Donnell

(“O’Donnell”) and prepared the appraisals as if they had come from O’Donnell’s business, Old Mill Appraisals. He did so

without O’Donnell’s knowledge or permission.

8. Each appraisal prepared by Lee on which he forged O’Donnell’s signature contained false and misleading information. For

example, each appraisal contained representations that the appraiser’s analysis, opinions, and conclusions were unbiased,

and that the appraiser had no present or prospective interest in the property and no present or prospective personal

interest or bias with respect to any of the participants in the transaction. This statement was false in each appraisal

because each one concerned a property for which the buyer or seller was either Lee himself or one of his family members.

9. The mortgage lenders who reviewed the forged appraisals and other loan application documents containing false and

misleading information relied on that information in agreeing to issue mortgage loans.

10. Lee and others then arranged with certain attorneys, some of whom were knowing participants in the scheme, to

conduct the closings. John Nelson (“Nelson”), Lee’s co-defendant, served as the closing attorney on transactions knowing

that the buyer was falsely representing that he/she intended to occupy multiple properties as his/her primary residence.

Lee and others also arranged for the preparation of other closing documents that contained false information, such as

occupancy affidavits in which a straw buyer would represent that he/she intended to occupy the property as his/her

primary residence, and closing documents that omitted certain payments to be made from the mortgage loan proceeds

and/or falsely indicated that the buyer would make a payment at the closing.

11. After the duped lenders sent the mortgage proceeds to the closing attorneys by wire transfer, in some cases the

attorneys paid a portion of the loan proceeds to Lee or to others at Lee’s direction.

12. All of the properties in the indictment fell into foreclosure after the mortgages went unpaid, and the lenders lost

substantial sums of money.”

4.3 On the 12th November, 2010, a federal grand jury sitting in Boston, Massachusetts returned an indictment against the respondent

and one John Nelson charging 55 criminal offences against the laws of the United States, and filed this indictment in the United

States District Court for the District of Massachusetts. A copy of this indictment is exhibited marked “A” in the affidavit of Ms. Bower

sworn on the 26th April, 2011. The respondent was charged with 51 of the 55 counts on the indictment.

4.4 The indictment runs to 88 paragraphs and it is unnecessary for the purposes of this judgment to recite it in full. Rather, its

contents may be summarised and illustrated by reference to a specimen count taken from each of the four categories of offences

charged.

4.5 The indictment commences with a 75 paragraph summary of the core allegations of fact, titled GENERAL ALLEGATIONS. It then

continues with the specific allegations constituting counts 1 to 10 inclusive. These counts are preferred against the respondent

alone, and are pleaded in the following way:

“COUNTS 1 THROUGH 10

(Wire Fraud - 18 U.S.C. § 1343)

76. The Grand Jury re-alleges and incorporates by reference paragraphs 1 through 75 of this Indictment and further

charges that:

77. On or about the following dates, in the District of Massachusetts and elsewhere,

(1) PATRICK LEE

defendant herein, having devised and intending to devise a scheme and artifice to defraud, and for obtaining money and

property from the following mortgage lenders by means of material false and fraudulent pretenses, representations, and

promises, did cause writings, signs, signals, pictures and sounds to be transmitted by means of wire communication in

interstate commerce for the purpose of executing such scheme and artifice, to wit, wire transfers of the proceeds of

fraudulently obtained mortgage loans, as follows:

Count Date Property Wire Transfer Amount

1 3/14/06 650 E. Sixth St # 1 Wire Transfer from the account of Fremount $529,323.20

South Boston, MA Investment & Loan at Capital Source Bank, in

Brea, California, to the Conveyancing

Account of Attorney Louis Bertucci at

Sovereign Bank in Wyomissing, Pennsylvania

[Data provided in similar tabular format for counts 2 – 10 inclusive – this Court’s note]

All in violation of Title 18, United States Code, Sections 1343 and 2”

4.6 The indictment then deals with counts 11 to 14 inclusive, which are Wire Fraud counts preferred against John Nelson alone. This

Court is not concerned with these counts.

4.7 The next section of the indictment deals with counts 15 to 33 inclusive, and these are preferred jointly against the respondent

and John Nelson, and are pleaded in the following way:

“COUNTS 15 THROUGH 33

(Wire Fraud - 18 U.S.C. § 1343)

80. The Grand Jury re-alleges and incorporates by reference paragraphs 1 through 75 of this Indictment and further

charges that:

81. On or about the following dates, in the District of Massachusetts and elsewhere,

(1) PATRICK LEE and

(2) JOHN NELSON

defendants herein, having devised and intending to devise a scheme and artifice to defraud, and for obtaining money and

property from the following mortgage lenders by means of material false and fraudulent pretenses, representations, and

promises, did cause writings, signs, signals, pictures and sounds to be transmitted by means of wire communication in

interstate commerce for the purpose of executing such scheme and artifice, to wit, wire transfers of the proceeds of

fraudulently obtained mortgage loans, as follows:

Count Date Property Wire Transfer Amount

15 10/31/06 80 Draper St., # 2 Wire Transfer from the account of First $305,065.58

Dorchester, MA Franklin at National City Bank in Indianapolis,

Indiana, to the Conveyancing Account of

Nelson & Roach at Eastern Bank in Boston,

Massachusetts.

[Data provided in similar tabular format for counts 16 – 33 inclusive – this Court’s note]

All in violation of Title 18, United States Code, Sections 1343 and 2”

4.8 The next section of the indictment deals with counts 34 to 39 inclusive, and these are preferred jointly against the respondent

and John Nelson, and are pleaded in the following way:

“COUNTS 34 THROUGH 39

(Unlawful Monetary Transaction - 18 U.S.C. § 1957)

82. The Grand Jury re-alleges and incorporates by reference paragraphs 1 through 75 of this Indictment and further

charges that:

83. On or about the following dates, in the District of Massachusetts and elsewhere,

(1) PATRICK LEE and

(2) JOHN NELSON

defendants herein, did knowingly engage and attempt to engage in a monetary transaction by, through, and to a financial

institution, affecting interstate and foreign commerce, in criminally derived property of a value greater than $10,000, the

particulars of which are described below, and which was derived from a specified unlawful activity, that is, wire fraud, in

violation of 18 U.S.C. § 1343:

Count Date Property Wire Transfer Amount

34 6/61/06 110 Norton St., # 1 Wire Transfer from Nelson & Roach $120,000.00

and # 2 Dorchester, Conveyancing Account at Eastern Bank, in

MA Boston, Massachusetts, to an account in the

name of D.J.’s wife.

[Data provided in similar tabular format for counts 35 – 39 inclusive – this Court’s note]

All in violation of Title 18, United States Code, Sections 1957 and 2”

4.9 The next section of the indictment deals with counts 40 to 55 inclusive, and these are preferred against the respondent alone,

and are pleaded in the following way:

“COUNTS 40 THROUGH 55

(Aggravated Identity Theft - 18 U.S.C. § 1028A)

84. The Grand Jury re-alleges and incorporates by reference paragraphs 1 through 75 of this Indictment and further

charges that:

85. On or about the following dates, in the District of Massachusetts and elsewhere,

(1) PATRICK LEE

defendant herein, did knowingly possess and use, without lawful authority, a means of identification of another person, that is,

Massachusetts real estate appraiser licence number, and business name of B.T.O., for appraisals of properties in South Boston and

Dorchester as identified below, during and in relation to the execution, and attempted execution, of a scheme to commit wire fraud, in

violation of 18 U.S.C. § 1343:

Count Date Property

40 6/61/06 650 E. Sixth Street # 1, South Boston, MA

[Data provided in similar tabular format for counts 41 – 55 inclusive – this Court’s note]

All in violation of Title 18, United States Code, Sections 1028A(a)(1) and 1028A(c)(5)”

4.10 Finally, in paragraphs 86 to 88 inclusive the indictment pleads consequential property forfeiture claims under 18 U.S.C. §§ 981(a)

(1)(C), 982(a)(1) & 28 U.S.C. § 2461(c) that will arise upon the respondent’s conviction of any offence in violation of 18 U.S.C § 1343

(i.e., any of the wire frauds counts), and upon the respondent’s conviction of any offence in violation of 18 U.S.C § 1957 (i.e., any of

the unlawful monetary transaction counts).

4.11 The affidavit of Sandra Bowers sworn on the 26th April, 2011, also exhibits an authenticated copy of the domestic U.S. arrest

warrant, marked “B”; a copy of the relevant provisions of the United States Code, marked “C” and “D” respectively; and provides a

detailed description of the requested person accompanied by a photograph of that person, marked “E”.

4.12 The Court is satisfied from a perusal of all of this material that the requirements of s. 25(1) of the Act of 1965 have been met in

terms of the provision of specified documents in support of the request for extradition in this case.

5. The Points of Objection

5.1. The respondent filed a twelve point Notice of Objection to his extradition. However, it was indicated in the course of the hearing

that he no longer wished to rely upon Point of Objection No. 5 as pleaded therein. Accordingly, the respondent now relies on the

following points of objection:

“1. The surrender of the Respondent to the United States would contravene his Constitutional rights as enshrined in and

as protected by Bunreacht Na hÉireann and such surrender would contravene his rights under the European Convention on

Human Rights and the European Convention on Human Rights Act 2003.

2. Without prejudice to the generality of the foregoing the surrender of the Respondent would contravene his right to

liberty and his right to bodily integrity and/or would expose him to cruel and inhumane treatment and conditions.

3. The sentencing regime in the United States of America and the potential sentence to which the Respondent will be

exposed if surrendered there is such that if the Respondent is extradited there will be a breach of his fundamental rights.

4. The use of plea-bargaining in the United States against the back-drop of the large sentences imposed after a trial

there is such that there is a virtual compulsion to plead guilty even though innocent and thus persons such as the

Respondent may be unfairly imprisoned.

5. [No longer relied upon.]

6. Without prejudice to the foregoing, the affidavit of Sandra Bower which purports to ground the extradition request

against the Respondent herein is incorrect and untrue in material respects such that the affidavit should be disregarded in

its entirety.

7. The Respondent did not perpetrate any fraud or any wire fraud and the allegations as contained in the warrant are

incorrect and untrue such that his surrender should not be ordered.

8. The United States has perpetrated covert acts of rendition, has transported arms and armed personnel through

Shannon airport and has carried out officially sanctioned acts of torture including “water-boarding” in relation to detainees

and on that basis is not a country to which extradition should be ordered.

9. Without prejudice to the foregoing some of the allegations in the extradition request the subject matter of the within

proceedings refer to alleged offences committed whilst the Respondent was present and residing in Ireland and as such it

is alleged the acts were committed inside the territory requested State, Ireland.

10. The surrender of the Respondent would contravene the rule of specialty.

11. The offences alleged against the Respondent are not “corresponding offences”

5.2. In addition, and with the leave of the Court, the respondent was permitted to argue ground No. 9 on an expanded basis. Namely,

that all of the offences the subject matter of the request, are not extraditable offences in that the territoriality bar created by s. 15

of the Act of 1965 as originally enacted applies to all of the offences in this case, and not just to those covered by ground No. 9 as

originally pleaded, i.e., those committed when the respondent was outside of the requesting state.

5.3. In summary, the objections raised may be grouped as follows:

• Fundamental rights based objections – grounds 1, 2 3, 4, & 8.

• An objection based on alleged insufficiency of evidence – ground 6.

• An objection based upon the territoriality created by s.15 of the Act of 1965 – ground 9 as expanded.

• An objection based upon the rule of specialty – ground 10.

• An objection based upon alleged non-correspondence – ground 11.

6. The Fundamental Rights Based Objections

6.1. The evidence adduced by the respondent in support of the fundamental rights based objections is that contained in his own

affidavit sworn on the 28th September, 2012; that contained in his supplemental affidavit sworn on the 16th December, 2012; that

contained in the affidavit of Brenda Ellis sworn on the 16th December, 2012; that contained in the affidavit of Jack T. Donson sworn

on the 13th December, 2012; that contained in the respondent’s further supplemental affidavit sworn on the 6th September, 2013;

and that contained in the affidavit of Edward Horgan sworn on the 27th September, 2013, together with the exhibits to those various

affidavits. The Court has read and considered all of this evidence.

6.2. The objections raised under this heading may be grouped as follows:

• The contention that the track record of the United States of America in disrespecting human rights and disrespecting its

treaty commitments to Ireland and other countries, is such that the normal presumption that the requesting state will

respect the fundamental rights of an extraditee is rebutted.

• The contention that conditions of detention in U.S. Federal Prisons are such as to create reasonable grounds for

believing that there is a real risk that the respondent’s right to bodily integrity and his right not to be subjected to torture

or to inhumane and degrading treatment or punishment will be breached in the event that he is extradited.

• The contention that the United States of America operates a coercive plea bargaining system that disrespects the

presumption of innocence, and that actively and aggressively seeks to discourage defendants from exercising their right

to go to trial.

• The contention that the respondent, if extradited, may face indeterminate and excessive pre-trial detention.

The Complaint based on the Requesting State’s

Human Rights and Treaty Compliance Record

6.3. In so far as the objection is based on the suggestion that the normal presumption that the requesting state will respect the

fundamental rights of an extraditee is rebutted on account of that state’s human rights record, and record with regard to breaching

treaty commitments, the Court has no hesitation in rejecting it.

6.4. Reliance is placed on supposed evidence of extraordinary rendition of prisoners through Shannon Airport (and Diego Garcia is also

briefly mentioned) for the purposes of their torture and interrogation in other countries; supposed evidence of illegal transportation of

arms and munitions through Shannon Airport, the alleged torture of prisoners in Guantanemo Bay and elsewhere, and the admitted

practice of the water boarding of certain detainees suspected of terrorist offences. The evidence relied upon, however, consists

entirely of the opinions, and unsubstantiated assertions, of the respondent himself, and commentators such as former Commandant

Horgan. Although numerous newspaper and magazine articles and website pages were exhibited, none of them provide any solid

evidence of extraordinary rendition to other countries, or illegal transportation of arms and munitions through Shannon Airport.

6.5. While the alleged treatment and methods of interrogation, including the admitted practice of waterboarding, of prisoners

suspected of terrorist offences in U.S. detention centres such as Guantanemo Bay, undeniably represents an ongoing controversy, it

has to be understood in its context. Namely, that there is an ongoing (so-called) “war on terror” that is invoked by the requesting

state in justification of the much criticised conditions of detention and methods of interrogation that may be applied in the case of a

small number of persons in a particular class, that is to say suspected terrorists. If there is a problem with respecting the human

rights of terrorist suspects, and the Court considers it unnecessary to express any view on that, all available evidence suggests that

it is confined to the small class of individuals who are suspected of terrorist offences, and that it is neither endemic, nor is it a

systemic problem, in the non-terrorist context. The reality of the present case is that the respondent is wanted for various offences

involving deception and/or fraud, and he is not a suspected terrorist. Accordingly, there is absolutely no reason to believe that the

requesting state would resort to extraordinary measures of detention or interrogation in his case. In the Court’s view, the presumption

that the requesting state will respect his fundamental rights in the event that he is extradited is not rebutted on account of that

state’s alleged human rights record, or its alleged record in disrespecting international treaties.

The Complaint based on Prison Conditions

6.6. The Court has carefully considered the evidence adduced in support of the complaint based upon prison conditions. In Attorney

General v O’Gara [2012] IEHC 179, (Unreported, High Court, 1st may 2012), this Court confirmed that the applicable principles are

those set forth by the Supreme Court in Minister for Justice, Equality and Law Reform v Rettinger [2010] 3 I.R. 783 suitably adapted

to the extradition context. In seeking to apply Rettinger in Attorney General v O’Gara, this Court attempted to distil a series of core

principles from the various individual judgments in that case. In Attorney General v O’Gara, I summarised, at para. 10.4, the core

principles as follows:

“It seems to me that, in so far as they must apply to the present case, they can, with appropriate modifications, be

expressed as follows:

• By virtue of the absolute nature of the obligation imposed by Article 3 of the European Convention on Human Rights and

Fundamental Freedoms. which provides that 'No one shall be subjected to torture or to inhuman or degrading treatment

or punishment'. the objectives of the [Washington Treaty] cannot be invoked to defeat an established real risk of ill-

treatment contrary to Article 3. (See analagous remarks of Fennelly J. at p.813 in Rettinger re the objectives of the

system of surrender pursuant to the Council Framework Decision on the European Arrest Warrant );

• The subject matter of the court's enquiry ‘is the level of danger to which the person is exposed.’ (per Fennelly J. at

p.814 in Rettinger);

• It is not necessary to prove that the person will probably suffer inhuman or degrading treatment. It is enough to

establish that there is a ‘real risk’ (per Fennelly J. at p.814 in Rettinger) ‘in a rigorous examination.’ (per Denham J. at

p.801 in Rettinger). However, the mere possibility of ill treatment is not sufficient to establish an applicant's case. (per

Denham J. at p.801 in Rettinger);

• A court should consider all the material before it, and if necessary material obtained of its own motion. (per Denham J.

at p.800 in Rettinger);

• Although a respondent bears no legal burden of proof as such, a respondent nonetheless bears an evidential burden of

adducing cogent ‘evidence capable of proving that there are substantial grounds for believing that if he (or she) were

returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary

to Article 3 of the Convention.’ (per Denham J. at p.800 in Rettinger);

• ‘It is open to a requesting State to dispel any doubts by evidence. This does not mean that the burden has shifted.

Thus, if there is information from an applicant as to conditions in the prisons of a requesting State with no replying

information, a court may have sufficient evidence to find that there are substantial grounds for believing that if the

applicant were returned to the requesting state he would be exposed to a real risk of being subjected to treatment

contrary to article 3 of the Convention. On the other hand, the requesting State may present evidence which would, or

would not, dispel the view of the court.’ (per Denham J. at p.801 in Rettinger);

• ‘The court should examine the foreseeable consequences of sending a person to the requesting State.’ (per Denham J.

at p.801 in Rettinger). In other words the Court must be forward looking in its approach;

• ‘The court may attach importance to reports of independent international human rights organisations.’ (per Denham J. at

p.801 in Rettinger)”

6.7. The main evidence proffered by the respondent in relation to prison conditions is that contained in the affidavit of Mr. Donson, a

retired Correctional Treatment Specialist with the U.S. Federal Bureau of Prisons, and who describes himself as a “prison consultant”.

His expertise was not challenged by the applicant.

6.8. The first part of Mr. Donson’s affidavit (paras. 2 to 11 inclusive) outlines that there was, as of the date of his affidavit, a

significant overcrowding problem in the U.S. prison system, and sets forth his opinions as to why that was the case. He indicated that

a majority of federal prisons operate at well over their rated capacity, and describes witnessing instances of multiple occupancy (up

to three persons) of cells designed for single occupants. He further expresses the view that “conditions in such locations are

inhumane and degrading”. He further discusses other negative consequences of overcrowding, such as reduced staff to inmate ratios,

increased assaults, health issues such as M.R.S.A. outbreaks, restrictions on visiting, access to medical staff, telephone and

institutional programs, and inadequate mental health staffing.

6.9. Mr. Donson then moves on in the next part of his affidavit (paras. 12 to 16 inclusive) to opine concerning the conditions in which

the respondent can expect to be detained in the event of his extradition, both in terms of pre-trial detention and imprisonment, in the

event that he is convicted and sentenced to imprisonment. In that regard Mr. Donson has deposed to the following:

“12. If the Respondent Mr. Patrick Lee is extradited to the United States I believe it is inevitable he will be imprisoned

pending trial because of he has Irish citizenship and it is alleged and sworn that he fled from the U.S. A disturbing aspect

regarding the incarceration of Mr. Lee would be his facility placement. The Bureau of Prisons classification policy allows for

a greater security “Management Variable” for inmates they feel are a flight risk. The fact he is fighting extradition and his

status as a citizen of Ireland all play in the thought process of the designation officials when they are considering

classification and facility placement. In addition to management variables, the BOP classification system also has what are

known as “Public Safety Factors”. There is the potential for the “Alien” public safety factor to be assigned to Mr. Lee.

White Collar offenders are ordinarily placed in minimum security Federal prison Camps. The application of a management

variable or public safety factor overrides the security point system and mandates placement in a secure Federal

Correctional Institution (FCI). Secure institutions have a more career criminally oriented offenders so he would be exposed

to a harsher environment in such a facility and exposed to greater dangers. The incidents of fights, assaults and gang

activity are far more prevalent in secure facilities than in a minimum, camp environment and in addition to overcrowding

and unsanitary conditions I believe Mr. Lee will also have to endure the foregoing.

13. Another significant difficulty for Mr. Lee in facility placement is the potential for designation to a private contract.

Nearly half of all immigrants detained by federal officials are held in facilities run by private prison companies. The

Associated Press (AP) has indicated that over the past decade, private prison companies have spent over forty-five

million US dollars on campaign donations and lobbyists to push legislation at the State and Federal levels. Private prisons

have also been found guilty of abuses ranging from understaffing facilities to bribing judges to sentence offenders to

disproportionately long terms in privately-owned correctional facilities. In May of this year a correctional officer was killed

and 19 others injured in a prison riot at a federal contract facility for immigrants in Adams County, Mississippi. According

to the Associated Press, more than two dozen officers were held hostage in the long standoff that started during a gang

fight. It should be noted the Federal Bureau of prisons told the AP that the facility hold “Low Security” inmates. A

contract facility placement would be a possibility for Mr. Lee. A recent report found a Georgia prison run by Corrections

Corporation of America (CCA) charges $5 a minute for phone calls while paying inmates just a dollar a day for menial labor.

CCA is one of the Federal government’s largest contract customers.

14. Another troubling aspect of the U.S. correctional system for Mr. Lee in the event of a conviction is the real prospect

of a custodial remand subsequent to sentencing and as a result a placement in an Administrative holding facility, like MCC

New York. Administrative holding facilities are high security, extremely restrictive and have minimal program opportunities.

Visiting hours with family are also limited and the food is prepared outside the unit and moved on food carts for reheating

in microwave ovens. The overall conditions in administrative units cater to the high security offender, and are

psychologically stressful and intimidating for the non-violent, white collar non-violent offender.

15. Another example of the inattention to human rights issues in the prison system is evidenced in the Prison Elimination

Rape Act (PREA). Although this legislation was passed in 2003, it was not until May 16th, 2012, that the U.S. Department

of Justice released the National Standards to prevent, detect and respond to prison rape. It was only recently

implemented in the Bureau of Prisons. Earlier this year, The Federal Bureau of Prisons Director, Charles Samuels issued a

notice to all Federal inmates over the electronic messaging system. In his own word he indicated, “another area of

concern to me is sexual assault”. This inmate notice also reflects upon additional facility concerns such as weapons

possession and suicide. I beg to refer to a true copy of the press-release upon which marked with the letters “JD-3” I

have signed my name prior to the swearing hereof.

16. Arising from my knowledge and experience of the U.S. Correctional system I have and I hereby express serious

concerns for the safety, health and welfare of Patrick Lee if he is required to spend time in custody in the U.S. either

before or after trial. I don’t believe the conditions to which he will be exposed will be either safe or humane.”

6.10. This evidence is responded to in an affidavit of Herman Quay, Deputy Regional Director of the U.S. Federal Bureau of Prisons

(BOP) for the Northeast Region, with responsibility for overseeing nineteen institutions across seven states including Masachusetts,

sworn on the 24th July, 2013. Mr Quay states therein:

5. The BOP's mission is to safely, humanely, and securely house sentenced inmates for the duration of their sentence. To

ensure that these goals are met, the BOP has promulgated policies which govern the day to day activity of its officers

and employees, as well as the inmates entrusted to its care. To ensure compliance with these program statements, the

BOP has implemented rigorous internal auditing mechanisms, and has instituted a third-party review and accreditation

process through the American Correctional Association (ACA), a third-party accreditation organization. In addition,

inmates who are displeased with aspects of their confinement have several methods by which they may seek redress,

including from the judicial system.

6. The BOP takes seriously its responsibility to the inmates in its custody, and works to ensure that staffing and

institutional population levels balance the security interests of the institution with the safety and well-being of the

inmate. To that end, the BOP regularly invites auditors into its institutions in order to gain accreditation by the ACA. In

addition, each facility that the BOP operates or contracts with is required to maintain ACA accreditation. As part of the

accreditation process, the ACA examines all aspects of the federal prison system, including staffing levels, capacity

concerns, housing assignments, and the provision of healthcare. In conjunction with the BOP's third-party review efforts,

the BOP regularly engages in rigorous internal program review.

7. When an inmate is sentenced to a term of incarceration, he/she is remanded to the custody of the Attorney General

and delivered by the United States Marshals Service (USMS) into the care of the BOP. Prior to the inmate's arrival, the

BOP's Designation and Sentence Computation Center (DSCC) reviews the inmate's Judgment and Commitment Order,

including the inmate's Presentence Report, and makes a determination as to where the inmate will be housed. Because

this determination is only made after the inmate has been sentenced, it is impossible to predict where Mr. Lee will be

housed, if convicted in the United States. Officials at the DSCC make this determination after considering multiple factors,

including: education level, substance abuse history, medical and mental health needs, prior criminal history, and the

nature of the current criminal offense. In addition, institution staffing and population levels are considered to ensure

appropriate placement. The designating officials will consider any security concerns specific to Mr. Lee, including his prior

offense conduct, prior history, and potential for flight, and will ensure that he is placed in an institution where he can be

housed safely and securely. The BOP's philosophy is to assign each inmate the lowest possible security level. Should Mr.

Lee be designated to a facility run by a private contractor, he would be entitled to the same constitutional protections he

is afforded at a BOP facility. The BOP imposes stringent oversight requirements on its contractors. As stated, the BOP

requires that the contract facilities achieve the same ACA accreditation that all BOP facilities must maintain.

8. BOP population levels are the direct result of judicial orders committing defendants to the custody of the Attorney

General, and are thus outside the BOP's control. The BOP's housing and population management determinations are made

in accordance with applicable law and are evaluated by auditors for the ACA as part of the accreditation process. In my

experience, the BOP has occasionally needed to house three individuals in a cell, as opposed to the normal two to a cell,

due to the number of inmates committed to serve a sentence. This is done on a limited and temporary basis, and is

closely monitored to ensure it is discontinued as soon as possible.

9. The BOP is committed to ensuring the safety of its employees and inmates, monitoring and adjusting its staff-inmate

ratios as appropriate. All BOP employees have comprehensive training requirements. Without discussing specific security

arrangements, the BOP relies on its exhaustive training requirements and the sound correctional judgment of its

Correctional Services staff to ensure that BOP staff are assigned to the appropriate posts to ensure their own safety as

well as the safety and security of the institution. In order to detect and prevent emergency situations from arising while

inmates are housed in a non-general population unit, such as a Special Housing Unit, BOP requires that staff conduct

rounds so that each cell is checked twice per hour on a twenty-four hour basis.

10. The BOP fully understands its constitutional obligation to provide adequate health care to its inmate population. At

the designation phase, inmates are assigned one of four Care Levels to ensure that they are matched with the institution

best situated to meet their individual medical needs. The BOP has a variety of medically-oriented facilities, including six

Medical Referral Centers (MRC) which are capable of providing inpatient care to seriously ill inmates. MRCs are accredited

by the Joint Commission on Accreditation for Health Care Organization (JCAHO), which sets the medical, surgical, and

psychiatric standards for hospitals nationwide. Each BOP institution typically employs a physician and several mid-level

providers, who usually are able to address the medical needs of most inmates. Should Mr. Lee have medical concerns that

the BOP is not able to handle, the BOP would provide him with access to local medical providers and specialists, as

necessary.

11. BOP has a comprehensive approach to infectious disease management, which includes "testing, appropriate treatment,

prevention, education, and infection control measures." Instances of infectious disease such as Methicillin Resistant

Staphylococcus Aureus (MRSA) are routinely treated in a manner consistent with guidelines developed by the Centers for

Disease Control and Prevention (CDC), and in accordance with any Clinical Practice Guidelines instituted by the BOP's

Medical Director.

12. With respect to mental health treatment, inmates are screened upon arrival, and are connected with mental health

professionals who provide them with care consistent with the above-mentioned policies. Psychological and psychiatric

services are available, as deemed appropriate, to each inmate in the BOP's custody.

13. The BOP has also implemented a Suicide Prevention Protocol. This protocol ensures that BOP staff work cooperatively

to identify and manage suicidal inmates in a timely and responsible fashion. To that end, staff receive significant suicide

prevention training so that suicidal inmates may be identified, referred for appropriate care, and prevented from doing

harm to themselves or others. Each institution has established Suicide Watch procedures, whereby an inmate may be

relocated to an area in the institution where staff are better able to monitor, access, and protect the suicidal inmate.

14. The Prison Rape Elimination Act (PREA) is an example of the BOP working with the United States Congress to ensure

that sexually predatory behavior is eliminated from the federal prison system. The BOP has a long maintained policy which

addresses sexually predatory behavior, and is finalizing the implementation of PREA's requirements for BOP staff, although

many of the suggested reforms are already in policy.

15. Should an inmate wish to challenge any condition of his/her confinement, he/she has multiple avenues of review

available. The BOP has an administrative process by which the inmate may address an issue with the Warden of his/her

facility, the Director of his/her Region, and the Director of the BOP. Furthermore, the inmate may contact the Office of

the Inspector General within the Department of Justice. Finally, to ensure that the BOP is complying with federal law

including the United States Constitution, the inmate may file a lawsuit in Federal Court.”

6.11. The Court considers that there has been appropriate engagement by the authorities in the requesting state with the concerns

expressed on behalf of the respondent, and it is reassured by the responses received. As to the overcrowding issue, in particular,

overcrowding is a common feature of many prison systems including our own. It is regrettable where it occurs, but while always

uncomfortable for those prisoners affected by it, and sub-optimal, it will not necessarily be inhumane or degrading. It depends on the

circumstances of the case, including the degree to which there is overcrowding, the duration of it, the amount of out of cell activity

permitted, other conditions in the prison or detention centre and so on. Mr Herman acknowledges that three persons are sometimes

accommodated in two person cells but states that this is done on a limited and temporary basis and is closely monitored to ensure it

is discontinued as soon as possible. The Court is reassured by this, and its concerns are allayed.

6.12. The Court does not consider that the evidence adduced by the respondent, when viewed in light of the responses received from

the requesting state, is of sufficient cogency to establish that there are reasonable grounds for believing that the respondent is at

real risk of being subjected to prison conditions, or a regime of incarceration, amounting to torture or inhumane or degrading

treatment or punishment.

The Complaint Based on Coercive Plea Bargaining

6.13. This complaint is primarily articulated in the affidavit of Brenda Ellis filed on behalf of the respondent. In it, Ms Ellis who

describes herself as “a sentencing consultant in the United States”, deposes to the following:

“2. The United States federal criminal court system actively and aggressively discourages defendants from exercising their

constitutional right to go to trial at every turn. As a result, 95% of all federal felony cases are resolved through the plea

bargaining process. Time limits can be placed on plea bargain offers and if the offer is rescinded when the allotted time

has elapsed, a defendant may receive then a less favorable offer presented as a punishment for not meeting the

prosecution’s timetable.

3. From the initial phase of prosecution, prosecutors are given wide berth to negotiate plea deals and pressure begins on

defendants to bend to this path. The federal criminal justice system is set up to compensate people who take a plea by

granting a substantially lower sentencing score for cooperation. Defendants who opt to go to trial and lose receive

harsher sentences than those who plead to the same offenses. The reward of a more lenient sentence is most significant

enticement to encourage the acceptance of the plea offer.”

6.14. The matter is also referred to in paragraph 17 of the affidavit of Mr. Donson, where he states:

“In relation to facing trial I believe another disturbing aspect of the American judicial system is the high percentage of

plea agreements. It is estimated that over 90 % of convictions in the United States result from plea agreements. A 2012

Study by the Pew Center on the States reflects pleas bargains in Florida make up 98% of case dispositions. The study

entitled “Time Served (The High Cost, Low Return of Longer Prison Terms)” cites one of the major reasons for pleas

bargains is the proliferation of longer sentences which gives prosecutors greater leverage to negotiate. Therefore, there is

a compulsion for the innocent to plead guilty out of fear of the United States draconian sentencing guidelines. Over many

years in the prison system, I have witnessed several offenders decline short plea bargain offers only to receive lengthy

sentences after unsuccessfully exercising their right to a trial. I beg to refer to a true copy of the study upon which

marked with the letters “JD-4” I have signed my name prior to the swearing hereof.”

6.15. The plea bargaining complaint is responded to in the affidavit of Ms. Christine Wichers sworn on the 24th April, 2013, as follows:

“18. Every defendant charged with a federal crime in the United States has a constitutional right to a trial before a jury of

his/her peers. If Mr. Lee is extradited, he will have the opportunity at his initial court appearance to plead not guilty,

thereby invoking his right to a trial, or plead guilty. If he pleads not guilty, he may change his plea at any time thereafter.

19. Ms. Ellis states in her affidavit that “"the United States federal criminal court system actively and aggressively

discourages defendants from exercising their constitutional rights to go to trial at every turn.”" Ms. Ellis does not offer any

facts in support of her opinion. As stated above, every defendant charged with a federal crime has the constitutional

right to a trial before a jury of his/her peers. Many defendants, once apprised of the evidence against them, opt to forego

their right to trial and plead guilty. The decision to give up the right to trial and enter a guilty plea can only be made by

the defendant, and only after consultation with counsel. Before accepting a defendant's guilty plea, a judge is required to

ask the defendant sufficient questions to assure the judge that the defendant's decision to waive his/her right to a trial

and plead guilty is made knowingly, intelligently, and voluntarily. If the defendant refuses to admit his/her guilt, or if the

judge is not satisfied that the defendant's decision is knowing, intelligent, and voluntary, the law requires the judge to

reject the guilty plea.

20. Ms. Ellis's suggestion that the prosecution can guarantee that a defendant will receive a more lenient sentence if

he/she pleads guilty is incorrect. Deciding the sentence rests with the trial judge, not the prosecution.

21. Ms. Ellis states: "The [U.S.] federal criminal justice system is set up to compensate people who take a plea by

granting a substantially lower sentencing score for cooperation." Under the U.S. Sentencing Guidelines, a convicted

defendant is assigned an "offense level" of between 1 and 43 points depending on his crime and certain aggravating or

mitigating circumstances, which includes a reduction of between 2 and 3 points if he/she accepts responsibility for his/her

crime (i.e., if he/she pleads guilty). The offense level, combined with the defendant's criminal history, determines the

recommended sentence range under the Guidelines. A sentencing judge must consider the Guidelines, but is not required

to follow them. In addition to considering the Guidelines, the sentencing judge must consider seven other factors, which

are set forth in Title 18 of the United States Code, Section 3553(a), a copy of which is attached as Exhibit 2. The

prosecutor and the defendant can agree on a recommended sentence, but the sentencing judge is free to reject that

recommendation. As stated above, the sentencing decision rests solely with the judge, who has wide discretion in

deciding a defendant's sentence, irrespective of whether the defendant has pled guilty or been convicted after a trial.”

6.16. The Court is not disposed to uphold the complaint based upon alleged coercive plea bargaining. While we do not countenance

plea bargaining in Ireland, the Court recognises that it is a legitimate procedure that is a feature of many criminal justice systems

worldwide. In Minister for Justice, Equality and Law Reform v Brennan [2007] 3 I.R. 732, Murray C.J., made the following points at

paras. 38 to 40:

“38 … I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country

would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged

by the Constitution.

39 The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will

vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even

though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which

wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide

a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor

offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a

particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that

in the requesting state he or she would not be tried before a jury. The exceptions which we have to the jury requirement,

as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is

constitutionally guaranteed for most trials in this country.

40 That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to

consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights.

There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of justice

of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would

not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole

matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state

according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation

to a criminal trial in this country does not of itself mean that an application for surrender should be refused … .”

6.17. I have considered the evidence on this issue and I consider that the mere fact that the United States operates a plea

bargaining system that is not allowed in the Irish criminal justice system, is neither here nor there. The respondent is fully legally

advised, at present, and will continue to be in the event that he is extradited. He has been fully advised as to the U.S. plea

bargaining system. He is fully aware that if he is innocent, as he claims to be, he is entitled to plead not guilty notwithstanding any

offer made to him in the context of plea bargaining, and to have the case against him tested at trial. The Court considers that there

is no basis for any concern that he will be coerced into pleading guilty in circumstances where he is innocent. In the Court’s

judgment, he will be able to approach any offer made in a plea bargaining context from an informed position. There is no inherent

unfairness in any of that, and nothing that breaches his fundamental rights. The Court is not satisfied that the system of plea

bargaining that exists in the United States constitutes so egregious a defect in their criminal justice system as to create a concern

that the respondent will be deprived of the right to contest his innocence at trial, or to receive a fair trial, such as might justify this

Court in refusing to extradite him.

The Complaint Concerning Pre-trial Detention

6.18. The concern that the respondent may be denied bail and held in pre-trial detention was first articulated by the respondent

himself in his affidavit sworn on the 28th September, 2012. The essence of his complaint at that stage was that there was a strong

likelihood, as a result the incorrect sworn assertion that he had fled from the United States, that he would be denied bail and face

pre-trail detention. Additional concerns were then advanced in the affidavit of Ms. Brenda Ellis. In her affidavit, Ms. Ellis opines that:

“4. Should Mr. Lee be returned to the United States for legal proceedings via extradition in respect of the Federal case to

which the indictment relates, his chances of getting bond during the pre-trial and trial process are nil. A defendant who

has never been in trouble before and who faces this range of charges would be eligible for and receive bond. But an

extradited defendant is viewed by a different standard which puts Patrick Lee at a disadvantage. Pre-trial incarceration

will make it difficult for Patrick Lee to assist in his own defense. Legal material contained on DVD, CD or flash drives will

not be accessible because computers aren’t available to inmates.

5. Patrick Lee will be housed at a county facility which could be as far as 30 to 60 miles from downtown Boston,

Massachusetts. The conditions in county jails are sub-par in comparison to federal facilities, there will be no programming

to participate in and visitation is limited to nuclear family members and his legal team. It’s highly likely that he will not

have access to the outside during his pre-trial incarceration.

6. The length of Patrick Lee will have to spend in pre-trial incarceration is unknown. Factors such as the judge’s calendar,

the number of pre-trial motions and possible appeals and prosecutors’ trial schedule will all affect the length of his stay.

7. All federal prisoners receive a security ranking when they enter the system. If Patrick Lee is extradited, the security

ranking will be higher because of this fact. Unfortunately, Patrick Lee’s proven good behavior with bond under the Irish

system will not be considered. But inaccurate allegations concerning his actions will be considered and could result in

more restrictive placement within the prison system.”

6.19. This complaint is responded to in the affidavit of Christine Wichers sworn on the 24th April, 2013, and in an affidavit of Kevin

Neal, Supervisory Deputy U.S. Marshall, sworn on the 18th April, 2013 and exhibited within Ms Wichers’ said affidavit. Ms Wichers has

deposed (at paras. 22 to 25 of her said affidavit):

“22. Ms. Ellis states that the amount of time Mr. Lee will spend in pretrial detention is unknown. If Mr. Lee is extradited, it

will be his right, under the Speedy Trial Act, to have his trial begin within 70 days after he appears in court and pleads

not guilty. See 18 U.S.C. § 3161(c)(1) (copy attached hereto as Exhibit 3). He may waive this right for any number of

reasons, including to give his lawyers more time to prepare for trial.

23. Ms. Ellis states that "[p]re-trial incarceration will make it difficult for Patrick Lee to assist in his own defense."

Detention may make it less convenient for Mr. Lee to assist his counsel in preparing his trial defense; however, it would

not present any obstacle that could not be readily overcome in preparing for trial. Every year thousands of criminal

defendants who are in pretrial custody in the United States assist their attorneys in preparing their defense.

24. Ms. Ellis states that, if Mr. Lee is detained before trial, he will be housed "at a county facility which could be as far as

30 to 60 miles from downtown Boston, Massachusetts. The conditions in county jails are sub-par in comparison to federal

facilities, there will be no programming to participate in and visitation is limited to nuclear family members and [Mr. Lee's]

legal team." In response to these allegations, please see the accompanying Declaration of Kevin Neal, Supervisory Deputy

U.S. Marshal, attached hereto as Exhibit 4. Mr. Neal's declaration addresses conditions, including alleged overcrowding, at

the three correctional facilities where Mr. Lee is most likely to be detained pending trial if pretrial detention is ordered. Mr.

Neal also addresses the general availability of medical care at the three facilities. Mr. Lee has asserted: "I have a number

of health complications which I intend to further particularise ...." Lee Affidavit (Sept. 28, 2012), Tf 11. Because Mr. Lee

has not identified his specific medical conditions, the United States currently is unable to provide the court with

information addressing Mr. Lee's specific medical needs.

25. Finally, Ms. Ellis states that all federal prisoners receive "security rankings" "when they enter the system." As

explained in paragraph 7 of Mr. Neal's affidavit, the United States Marshals Service, which is responsible for federal pretrial

detainees, does not use security rankings. Security rankings are used by the federal Bureau of Prisons ("BOP"), which is

responsible tor post-conviction custody. For an explanation of security rankings used by the BOP, see the affidavit of

Herman Quay attached hereto as Exhibit 5.”

6.20. In his said affidavit, Mr Neal states:

“5. If Mr. Lee were extradited to the United States, his pre-trial process would be the same as for any other person in the

U.S. charged with a federal crime. Specifically, he would have an initial appearance before a federal judicial officer where

he would have the right to plead guilty or not guilty, and he would be entitled to a detention hearing where a federal

judicial officer would determine whether Mr. Lee should be held in pre-trial custody.

6. If Mr. Lee were detained and remanded to the USMS, the USMS would determine which pre-trial facility in which to

house Mr. Lee. As the USMS does not operate detention facilities, USMS detainees are housed at any of the

approximately 2,000 jails nationally to which the USMS has access by way of an intergovernmental agreement ("IGA") or a

contract. The USMS considers a myriad of factors in determining in which facility to house a USMS prisoner. If Mr. Lee

were remanded to USMS custody within the U.S. District of Massachusetts, it is likely he would be housed in one of the

following three facilities: (a) Plymouth County Correctional Facility ("PCCF"); (b) Donald W. Wyatt Detention Facility

("Wyatt"); or (c) the Essex County Correctional Facility ("ECCF"). Information concerning these three facilities is set forth

below.

7. It is my understanding that a sentencing consultant hired by Mr. Lee, Ms. Brenda Ellis, has signed an affidavit stating in

part that "[a]ll federal prisoners receive a security ranking when they enter the system." The USMS does not use

"security rankings" for pre-trial detainees and does not classify detainees. Each jail classifies prisoners within its custody

once the detainee is admitted.

Plymouth County Correctional Facility ("PCCF")

8. The USMS has an Intergovernmental Agreement ("IGA") with the PCCF for the purpose of detaining persons charged

with or convicted of violations of federal law, persons held as material witnesses, and federal parole violators. The PCCF is

located at 26 Long Pond Road, Plymouth, Massachusetts, approximately 41 miles from the federal courthouse in Boston.

9. True and correct printouts from the PCCF website are attached hereto as Exhibit A.

10. The facility has a maximum capacity of approximately 1,500 beds. On April 9, 2013, I contacted the PCCF and verified

that their current population on that date was 1,222. In the three years that I have been the SDUSM responsible for

selecting the appropriate jail facility for USMS pre-trial detainees in the District of Massachusetts, I have not been aware

of any overcrowding issues at the PCCF.

11. Pursuant to the IGA, the PCCF is required to provide USMS detainees "with the full range of medical care inside the

detention facility," without additional costs to the USMS. This care includes medical, dental, and mental health care.

Prisoners routinely receive care for chronic conditions within the jail. All outside medical care must be pre-approved by the

USMS. In the event of an emergency, the PCCF must proceed immediately with medical treatment. Additionally, the PCCF

is required to have an adequate infectious disease program.

12. The PCCF houses prisoners in one of three areas: General Population, Protective Custody, or Administrative

Segregation (for individuals who have committed disciplinary infractions).

13. The USMS inspects the PCCF annually for the purpose of monitoring and overview to determine whether the facility

meets basic and/or primary criteria related to conditions of confinement for purposes of determining suitability for use.

The inspection process includes review of areas such as, among other things, the average detainee population and

staffing information; security; use of force; hygiene and sanitation; the availability of medical care; the availability of

suicide prevention; ongoing complaints/litigation; the availability of religious practices; legal access; and visitation. The

PCCF was inspected in 2012 and found compliant in all areas of review.

Donald W. Wyatt Detention Facility ("Wyatt")

14. Wyatt is located at 950 High Street, Central Falls, Rhode Island approximately 45 miles from federal courthouse in

Boston.

15. True and correct printouts from Wyatt's website are attached hereto as Exhibit B.

16. The facility has a maximum capacity of 771 beds. Based on a call to the facility on April 9, 2013, the facility housed

640 prisoners on that date. During my tenure as an SDUSM in the District of Massachusetts, I have not known there to be

overcrowding at Wyatt.

17. Male detainees at Wyatt reside in one of several units: General Population, Protective Custody, Segregation, and

Transitional Housing.

18. Every detainee at Wyatt is classified and assigned housing based upon Wyatt's correctional experience in determining

appropriate housing.

19. Pursuant to an IGA between Wyatt and the USMS, Wyatt is required to provide USMS detainees with the full range of

medical care, including dental care, mental health care, pharmaceuticals, and record keeping, as necessary to meet the

essential standards of the National Commission of Correctional Health Care's Standards for Health Services of Jails.

Prisoners routinely receive care for chronic conditions within Wyatt. All outside medical care must be pre-approved by the

USMS. In the event of an emergency, Wyatt must proceed immediately with medical treatment. Additionally, Wyatt is

required to have an adequate infectious disease program.

20. In December 2012, an inspection team representing the Department of Justice's Office of the Federal Detention

Trustee (which is now a subordinate agency within the USMS) conducted a "Quality Assurance Review" at Wyatt. A

Quality Assurance Review is based upon the Federal Performance-Based Detention Standards. Those standards, in turn,

are based on the American Correctional Association Standards, and are designed for use in reviewing non-federal facilities

that house federal detainees to ensure these facilities are safe, humane, and protect detainees' statutory and

constitutional rights. Wyatt's rating following the 2012 Quality Assurance Review was Excellent.

Essex County Correctional Facility ("ECCF")

21. The ECCF is located at 20 Manning Avenue, Middleton, Massachusetts, approximately 21 miles from the federal

courthouse in Boston.

22. A true and correct printout from the ECCF's's website is attached hereto as Exhibit C.

23. The ECCF has a maximum capacity of approximately 1,300 beds. Based on a call to the facility on April 9, 2013, the

facility housed 1,167 prisoners as of that date.

24. Prisoners at the facility are housed in one of three units: General Population, Protective Custody, or Segregation.

25. The USMS inspects the ECCF annually for the purpose of monitoring and overview to determine whether the facility

meets basic and/or primary criteria related to conditions of confinement for purposes of determining suitability for use.

The inspection process includes review of areas such as, among other things, the average detainee population and

staffing information; security; use of force; hygiene and sanitation; the availability of medical care; the availability of

suicide prevention; ongoing complaints/litigation; the availability of religious practices; legal access; and visitation. The

ECCF was inspected in 2012 and found compliant in all areas of review.”

6.21. The Court has considered the evidence on both sides on this issue. It is clear that, in the event that he is extradited, the

respondent will have an entitlement to apply for bail. While various deponents on the respondent’s side have expressed pessimism with

respect to his prospects of securing bail, the point is made by Ms Bower in her second supplemental affidavit sworn on the 11th

March, 2014, that the respondent’s brother, Michael Lee, who was also charged with, and indeed ultimately pleaded guilty to, similar

mortgage fraud related offences, was successful in obtaining bail notwithstanding the fact that he was an Irish citizen with

conditional resident alien status. The Court is satisfied that the fact that there was an acknowledged error in the papers supporting

the respondent’s extradition request, asserting that he fled the United States on a certain date, when in fact he was inbound to the

United States on the date in question (see part 7 of this judgment, where this issue is considered in greater detail), will not adversely

affect any bail application he might make . The error is plainly acknowledged, and is thoroughly documented such that the

respondent’s lawyers will have no difficulty in apprising any court considering a bail application of the true position.

6.22. In addition, the Court is satisfied on the basis of Mr. Neal’s affidavit that in the event that the respondent is denied bail there

are no goods grounds for believing that he will be detained in circumstances where his fundamental rights would not be respected.

The description of the regime and conditions of pre-trial detention in the possible institutions to which the respondent might be sent

is significantly reassuring and allays any concerns that the Court had arising out assertions made by deponents on behalf of the

respondent. The Court considers that the respondent has failed to adduce evidence of sufficient cogency to satisfy it that there are

reasonable grounds for believing that, if the respondent is extradited, he will face a real risk of breach of his rights to liberty, and/or

to bodily integrity, and/or not to be subjected to torture or inhuman and degrading treatment or punishment, and/or to a fair trial.

6.23. The Court is not therefore disposed to uphold the complaint based upon anticipated pre-trial detention.

Overall Conclusion re the Objections based on Fundamental Rights

6.24. In circumstances where the Court does not consider that the respondent has sustained any of the numerous subsidiary

complaints that he makes under the broad heading of an objecting to his extradition because of anticipated or potential breaches of

his fundamental rights, whether guaranteed under the Constitution or under the European Convention on Human Rights, the Court is

not disposed to uphold such any such objection or objections.

7. The Objection Based on Alleged Insufficiency of Evidence

7.1. This objection is premised upon a contention that this Court should disregard entirely the affidavits of Sandra Bower which

ground the extradition request, because Ms Bower is demonstrably incorrect in one matter that she has stated. The respondent

contends that in the circumstances her evidence should be disregarded in its entirety.

7.2. In para. 33 of her affidavit sworn on the 26th April, 2011, Ms. Bowers deposed to the following:

“Lee fled the United States on June 24, 2007, immediately after being approached by the Massachusetts State Police

regarding an auto insurance scam in which he was a suspect. U.S. Customs and Border Protection has no record of Lee

reentering the United States.”

7.3. The respondent joined issue with this assertion in an affidavit sworn by him on the 28th September, 2012. At para. 6 of his said

affidavit he contends:

“I say the affidavit of Sandra Bower which purports to ground the extradition request against me is demonstrably

incorrect and untrue in a material respect and I believe that affidavit should be disregarded in its entirety. I refer in

particular to the untrue and damaging contention that I “fled” from the United States on June 24th 2007 and my wife fled

later. I was not approached about an auto scam. In support of our pre-planned move to Ireland I beg to refer to true

copies of email communications with relevant parties”

The respondent exhibited, with the said affidavit, e-mail communications with Aer Lingus indicating that as far back as February, 2007

he had purchased a return ticket from Dublin to Boston, departing on the 24th June, 2007, and returning on the 27th of June 2007,

and further indicating that the said ticket was in fact used.

7.4. In an earlier affidavit filed in connection with his application to this Court for bail, the respondent had again disputed that he had

fled the United States or that he had been stopped in connection with an auto scam. He suggested that the U.S. authorities had

failed to mention that his brother, Michael Lee, had been convicted for assuming his (the respondent’s) identity and obtaining a

driver’s licence in his name, thereby implying that they had got the wrong man.

7.5. The assertion that had been made by Ms. Bower that the respondent had left the United States on the 24th June, 2007, was

later acknowledged by the requesting state to have been incorrect, and the record was corrected in the following circumstances.

7.6. Ms. Christine Wichers, an Assistant United States Attorney for the District of Massachusetts, deposed in an affidavit sworn on

the 24th of April 2013 for the purposes of these proceedings that:

“8. The United States’ earlier assertion that Mr Lee left the United States on June 24, 2007, was in error. …Mr Lee

entered the United States on June 24, 2007 and left the United States on June 27, 2007. U.S. Customs and Border

Protection records show that, for the period 2005 – 2008, Mr Lee left and re-entered the United States on the following

dates:

Patrick Lee left the U.S. Patrick Lee re-entered the U.S.

April 8, 2005 April 15, 2005

April 7, 2006 April 14, 2006

June 27, 2006 July 4, 2006

September 29, 2006 October 6, 2006

February 21, 2007 March 3, 2007

March 29, 2007 June 24, 2007

June 27, 2007 No re-entry through 2008

7.7. In addition, Ms. Bowers herself re-addressed the issue in a Second Supplemental Affidavit sworn by her on the 11th of March

2014. She stated:

2. The purpose of this affidavit is to further address the assertion at paragraph 33 in my original affidavit signed on April

26, 2011, that Mr. Lee "fled the United States on June 24, 2007, immediately after being approached by the

Massachusetts State Police regarding an auto insurance scam in which he was a suspect."

3. As noted in paragraph 8 of Christine Wichers' affidavit signed on April 24, 2013, and in paragraph 7 of Wichers' affidavit

signed on January 27, 2014, my earlier assertion that Mr. Lee left the United States on June 24, 2007 was in error. I do

not specifically recall how the mistake concerning the June 24, 2007 date was made. I have reviewed my files and I note

that as early as May 2009, personnel with the U.S. Secret Service advised me that based on a review of a record in TECS

[a central law enforcement database], Mr. Lee had left the United States en route to Dublin, Ireland on June 24, 2007.

TECS was described in U.S. Customs and Border Protection Chief Michael Manning's affidavit, dated January 27, 2014,

which accompanied Wichers' January 27, 2014 affidavit. It appears that the U.S. Secret Service personnel read the

record incorrectly as a June 24, 2007 departure from the United States for Dublin, rather than a June 24, 2007 arrival in

the United States from Dublin. The border crossing records, which were included in Wichers' April 24, 2013 affidavit and

Chief Manning's January 27, 2014 affidavit, and which are set forth again below, show that Mr. Lee re-entered the United

States on June 24, 2007, and departed the United States on June 27, 2007. The records show that he did not re-enter

lawfully through 2008.

Patrick Lee left the U.S. Patrick Lee re-entered the U.S.

April 8, 2005 April 15, 2005

April 7, 2006 April 14, 2006

June 27, 2006 July 4, 2006

September 29, 2006 October 6, 2006

February 21, 2007 March 3, 2007

March 29, 2007 June 24, 2007

June 27, 2007 No re-entry through 2008

4. Mr. Lee denies fleeing the United States and denies being approached by law enforcement about an auto insurance

scam. Specifically, Mr. Lee states that the assertions in my original affidavit in support of extradition that he "fled the

United States" were false, and in his documents to the Irish court he states "I was not approached about an auto scam."

There is contrary evidence. I have attached a Massachusetts State Police report hereto as Exhibit 1. In summary, the

report states that:

‘Law enforcement, along with an agent with the National Insurance Crime Bureau, (hereafter referred to collectively

as "investigators") visited Mr. Lee's Easton, Massachusetts, home on March 29, 2007, in an effort to locate a 2000

Ford Expedition (Eddie Bauer edition) which Mr. Lee's brother, Darren, had owned and had reported stolen in 2005,

and for which Darren Lee had received more than $15,000 in insurance proceeds. At that time, investigators

observed what they believed to be the stolen 2000 Ford Expedition, as it was an Eddie Bauer edition, in the Lees'

driveway; however, it bore a license plate identifying it as a 1997 Ford Expedition XLT registered to Patrick Lee and

his business. Mr. Lee was not home and Mrs. Lydia Lee refused to permit the investigators to further inspect the

vehicle, telling them to speak with her husband who would be home later. When an investigator returned later on

March 29, 2007, the Ford Expedition (Eddie Bauer edition) which had been parked in the driveway earlier that day

was no longer there. Mr. and Mrs. Lee arrived at the residence while the investigator was still present and Mr. Lee

told the investigator that a worker was using the Expedition and it would be back at the residence the next day and

the investigator could look at it then.

However, when investigators returned to the Lee residence the next day -- March 30, 2007 -- investigators

observed that a different Ford Expedition was in the driveway bearing the same license plate which had, on March

29, 2007, been on the Eddie Bauer Ford Expedition. Darren Lee was present and advised investigators that Patrick

Lee was not home. (The border crossing records set forth above show that Patrick Lee left the United States on

March 29, 2007, and did not return until June 24, 2007. This is corroborated by Patrick Lee's United States passport

which bears the stamp of Shannon Airport (Ireland) dated March 30, 2007 on page 13. A copy of Mr. Lee's passport

is attached as Exhibit 2.)

In December 2007, investigators learned that a Massachusetts woman purportedly bought the 1997 Ford Expedition

previously registered to Patrick Lee and his business. However, further investigation revealed that the vehicle

actually purchased by the woman was the 2000 Eddie Bauer Ford Expedition reported stolen by Darren Lee. The

investigation revealed that the federal certification label for the 1997 Ford Expedition owned by Lee had been

attached to the 2000 Eddie Bauer Ford Expedition reported stolen by Darren Lee.’

4. What the Massachusetts State Police Report makes clear is that Mr. Lee did leave the United States immediately after

being approached by law enforcement concerning the stolen motor vehicle. Mr. Lee spoke to law enforcement on March

29, 2007. Border crossing records show that he left the United States on March 29, 2007 - the same day - and his U.S.

passport confirms his arrival at Shannon Airport on March 30, 2007.

5. Mr. Lee argues that the United States has failed to mention that another brother, Michael Lee, has been convicted for

"assuming [Patrick Lee's] identity" and obtaining a driver's license in Patrick Lee’s name. He notes, correctly, that Michael

Lee and other individuals have been charged with similar mortgage fraud-related offenses. Indeed, Michael Lee was

charged in United States v. Michael Lee, 09-CR-10050-GAO, which I also prosecuted. Michael Lee pleaded guilty, and was

sentenced and imprisoned for those offenses. It is my understanding that Michael Lee has been released from prison and

has returned to Ireland.

6. To the extent that Patrick Lee is suggesting that it was Michael Lee who actually committed the offenses for which

Patrick Lee is charged and for which the United States seeks extradition that will be rebutted by the testimony and

documentary evidence to be presented at his trial, should Patrick Lee be extradited. Among other things, photocopies of

Patrick Lee's Massachusetts driver's license, bearing his photograph, are present in the closing files for at least one unit

for each property address which form the basis of the charges against him. The photo of Patrick Lee submitted with the

extradition request is the photograph from the Massachusetts Registry of Motor Vehicles which appears on the driver's

license.

7. Mr. Lee claims that he and his wife made firm plans to return to Ireland by February 2007 at the latest, and has

produced supporting emails. As the United States has stated previously, if Mr. Lee is extradited, he will have the

opportunity to present this argument and any supporting evidence at a detention hearing. The purpose of a detention

hearing is for a federal judicial officer to determine whether a person charged with a federal crime should be detained

before trial, or whether instead he may be released on his own recognizance or upon payment of bail. I note that his

brother, Michael Lee, described above, was initially released on $50,000 bond with conditions after his arrest on the

mortgage fraud charges. That was so even though Michael Lee was an Irish citizen with conditional resident alien status

in the United States.”

7.8. In reply to this the respondent has re-iterated in a further affidavit sworn by him on the 12th May, 2014, that he did not flee the

United States and he contends that “a secret service agent purportedly misreading my travel details does not excuse what I regard

as a blatantly incorrect assertion”. He further contends that “[a]s I have previously asserted I believe this false assertion

fundamentally undermines the credibility of the request from the U.S.” Finally, the respondent accepts that his movements in and out

of the United States in 2006 were as is now indicated.

7.9 This Court has given careful consideration to the evidence adduced before it concerning the undoubtedly erroneous assertion

made by Ms. Bower that the respondent fled the United States on the 24th of June 2007. The Court considers that the error has

been adequately explained. Moreover it disagrees profoundly with the contention advanced by the respondent that the error in

question fundamentally undermines the credibility of the extradition request. In this Court’s view, it does nothing of the sort. The

Court is satisfied that the error was a genuine one, and that it did not involve any bad faith, or any attempt to abuse either the

process of this Court, or that of the courts of the requesting state. It was a regrettable error as to a factual detail but hardly a

critical one in terms of the issues that this Court has to decide. It is an untenable proposition that because of a single error as to a

non-critical detail, the entirety of the evidence offered by the deponent in question should be rejected as unreliable and not credible.

The Court accepts that sometimes errors occur even in the most assiduously and conscientiously assembled paperwork. As long as

the error was acknowledged once discovered, which it has been; and explained, which it has been; and providing it has no sinister

connotations, which it has not; the Court considers that it carries no implications for the reliability or credibility of other evidence

given by Ms. Bowers in support of the extradition request. Neither does the error carry any implications for the reliability or credibility

of other deponents who have also provided sworn evidence in support of the extradition request.

7.10. In the circumstances, the Court is not disposed to uphold this ground of objection.

8. The Objection Based the Territoriality Bar Created by s.15 of the Act of 1965.

8.1. Section 15 of the Act of 1965 in its original form provided:

“15.—Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State

as having been committed in the State.”

8.2. It is clear that s. 15 of the Act of 1965, as originally enacted, provided that if an offence was capable of being prosecuted in

Ireland because it was regarded under the law of the State as having been committed in the State, that was a total bar to

extradition. It mattered not whether the Director of Public Prosecutions (the D.P.P.) had considered, or had not considered, possible

prosecution in this jurisdiction, or whether the D.P.P. wished, or did not wish, to prosecute in this jurisdiction. Once an offence was

regarded under the law of the state as having been committed in the State, extradition was absolutely barred. To correctly

characterise it, the original s. 15 of the Act of 1965, created a “territoriality bar”.

8.3. It bears mentioning en passant that a new s. 15 of the Act of 1965 has recently been substituted by s. 27 of the European

Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012. The effect of the new s. 15 is

to remove the absolute territoriality bar that had previously existed and to substitute for it a modified provision that, in effect, gives

the D.P.P a right of first refusal on prosecution where the offences are regarded as having been committed in the state and the

offender is also wanted for prosecution for the same offences in another state, which has requested, or it is anticipated may request,

that person’s extradition.

8.4. However, as the Act of 2012 only came into effect on the 24th July, 2012, and the relevant date for the purposes of determining

the appropriate extradition legislation applicable to these proceedings is the date of the extradition request, i.e., the 5th August,

2011, the new s. 15 does not apply. Rather, the Court is solely concerned with s. 15 as originally enacted, and the parties are in

agreement on that.

8.5. The territoriality objection as originally formulated by the respondent was advanced on the basis that some of the alleged

offences in the extradition request are said to have been committed whilst the respondent was present and residing in Ireland and as

such it is alleged that the acts were committed inside the territory of the requested State, namely Ireland. As noted already, the

territoriality objection has now been expanded to potentially embrace all of the offences that are the subject matter of the

extradition request.

8.6. In making his expanded s. 15 objection, the respondent contends that the question of whether the territoriality bar applies in his

case requires a consideration of whether or not he may be alleged to have committed the said alleged offences under Irish law (as

opposed to necessarily committing the same in the State). Put another way, he appears to be contending that offences in respect of

which Ireland claims extraterritorial jurisdiction qualify as offences regarded under the law of the State as having been committed in

the State. Further, he says that in determining whether or not the respondent may be alleged to have committed an offence under

Irish law, this must be considered by reference to the date of upon which the request for his extradition was made, rather than by

reference to the date upon which the alleged offences were committed.

8.7. The significance of the latter contention is that, if he is correct in respect of the former, the Court would be required to consider

whether the offences alleged to have been committed by him in the United States in 2006-2007 give rise to offences in respect of

which Ireland claimed extraterritorial jurisdiction, on the date on which the request was made (i.e. the 5th August, 2011).

8.8. The respondent makes the case that active participation in a criminal conspiracy lies at the heart of the allegations that are the

subject matter of the extradition request, and that the underlying facts therefore disclose offences contrary to ss. 71, 71A and 72 of

the Criminal Justice Act 2006 (hereinafter the Act of 2006), as amended by the Criminal Justice (Amendment) Act 2009 (hereinafter

the Act of 2009) (effective as of the 22nd July, 2009), and/or s. 7 of the Criminal Justice (Money Laundering and Terrorist Offences)

Act 2010 (hereinafter the Act of 2010) (commenced 15th July 2010), all of which are prosecutable in Ireland even if committed in the

United State of America, because Ireland now asserts extra-territorial jurisdiction in respect of such offences, and did so on the 5th

August, 2011.

8.9. The applicant’s position is that neither the Act of 2006, nor the Act of 2009, nor the Act of 2010, is relevant to a consideration

of s. 15 of the Act of 1965. The applicant suggests that the respondent’s submissions are based on a fundamental misunderstanding

of the ambit of s. 15 of the Act of 1965 and ignores the distinction between it and s. 10 of the same Act, and indeed conflates both

provisions in several respects. The applicant suggests that the effect of the respondent’s submissions is that one must consider

whether the alleged actions of the respondent in 2006-2007 give rise to criminal offences in 2009-2011, and that, if so, extradition is

prohibited despite the fact that Article 15.5 of the Constitution prohibits retrospective penal legislation. In the applicant’s submission

that cannot be so.

8.10. In this Court’s view s. 15 of the Act of 1965 has to be viewed and interpreted in context, and in particular with regard to the

scheme of the Act of 1965.

8.11. The starting point is s. 9 of the Act of 1965 (infra para 2.5) which sets out the obligation to extradite. The offences in respect

of which extradition may be ordered are then set out in s. 10(1A) of the Act of 1965, as amended by the Act of 2001 (infra para 2.7).

Importantly, the expression “an offence that is punishable under the laws of the State” which appears therein (and elsewhere in s.

10) is defined in s. 10(3), and pursuant to that subsection means “an act that, if committed in the State on the day on which the

request for extradition is made, would constitute an offence”. However, the applicability of this definition applies is qualified by the

words “[i]n this section” which appear at the very start of s. 10(3).

8.12. It is clear beyond peradventure that to the extent that this court is required to consider correspondence and minimum gravity,

it is required by virtue of s. 10 to engage in a hypothesis and must determine if the offending conduct would, if committed in the

State on the 5th August, 2011, constitute an offence or offences in the State attracting a potential punishment, or in respect of

which an actual punishment was imposed, above the minima specified. However, there is nothing in s. 10, or elsewhere in the Act of

1965, to suggest that the relevant date for purposes of considering issues other than correspondence or minimum gravity is the date

on which the extradition request is made. It seems clear that the s. 10 definition of “an offence that is punishable under the laws of

the State” is intended to apply only in the Court’s consideration of correspondence and minimum gravity, and not more widely. There

is no ambiguity in this Court’s view. The language used is clear, and does not imply an absurd result.

8.13. In particular, there is nothing in s. 10 or elsewhere in the Act of 1965 to suggest that the definition of an “an offence that is

punishable under the laws of the State” set forth in s. 10(3) was intended by the legislature to have any application in the

interpretation of s. 15 of the Act of 1965. Unlike in s. 10 of the Act of 1965, the concept of “offence” for the purposes of s. 15 is not

statutorily defined. However, as already alluded to, s. 15 is concerned with is what has been termed “a territoriality bar” to

extradition, where the offence (for which extradition is requested) has been “committed in the State”. Again the language appears

clear. The section ostensibly applies to offences regarded under the law of the State as having been committed in the State (this

Court’s emphasis) i.e., offences committed within the actual territory of the State or places deemed under Irish law to be the territory

of the State, such as on a ship or aircraft registered in Ireland, or on the property of an Irish embassy or diplomatic mission abroad. It

does not say that it applies more widely to offences committed anywhere in respect of which the State claims extraterritorial

jurisdiction.

8.14. The Court finds support for its view when Article 7 of the European Convention on Extradition 1957 (hereinafter the 1957

Convention), which provides the basis for the legislative enactment of s. 15 of the Act of 1965, is examined. The Court is satisfied

that it is both permissible and appropriate for it to have regard to Article 7 of the 1957 Convention and indeed the Explanatory

Memorandum accompanying it. There is abundant precedent for doing so. In Aamand v Smithwick [1995] 1 I.L.R.M. 61, the Supreme

Court considered the terms of Article 7 of the 1957 Convention in seeking to interpret s. 10 of the Act of 1965, in the context of an

application under Article 40 of the Constitution. Similarly, in the somewhat earlier case of Bourke v Attorney General [1972] 1 I.R. 36,

the Supreme Court again considered Article 3 of the 1957 Convention in aid of interpreting s. 50 of the Act of 1965. Yet again in

Minister for Justice v. Bailey [2012] 4 I.R. 1, the Supreme Court in seeking to interpret s. 44 of the European Arrest Warrant Act 2003

considered the travaux préparatoires to Council Framework Decision 2002/584/J.H.A. 13th June 2002 on the European arrest warrant

and the surrender procedures between Member States, O.J. L190/1 18.7.2002, as well as Article 7 of the 1957 Convention and the

Explanatory Memorandum thereto.

8.15. Article 7 of the 1957 Convention provides:-

“1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having

been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requested Party,

extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of

offence when committed outside the latter Party’s territory or does not allow extradition for the offence concerned.”

8.16. The Explanatory Report to the 1957 Convention states the following with respect to Article 7 of that Convention:-

“Article 7 (Place of commission)

Paragraph 1 permits a Party to refuse extradition for an act committed in whole or in part within its territory or in a

place considered as its territory. Under this paragraph it is for the requested Party to determine in accordance with its

law whether the act was committed in whole or in part within its territory or in a place considered as its territory. Thus,

for examples, offences committed on a ship or aircraft of the nationality of the requested Party may be considered as

offences committed on territory of that Party.

Paragraph 2 was inserted in order to take into account the law of countries which do not allow extradition for an offence

committed outside the territory of the requesting Party. This paragraph provides that extradition must be granted if the

offence has been committed outside the territory of the requesting Party unless the laws of the requested Party do not

authorise prosecution for an offence of the same kind committed outside its territory, or do not authorise extradition for

the offence which is the subject of its request.

Under the terms of Article 26, a reservation may be made in respect of this paragraph, making it subject to

reciprocity.”

(The Court’s emphasis)

8.17. Ireland has not entered any reservation under Article 26 of the 1957 Convention.

8.18. It is clear to this Court that when Article 7 of the 1957 Convention is considered in aid of the interpretation of s. 15, which is in

any event quite clear in its terms, that section is concerned with a territoriality exception or bar to extradition i.e. that extradition

shall not be granted where “the offence” (in terms of the offending conduct constituting the offence) is committed in the State, or in

a place regarded under the law of the State as being within the territory of the State.

8.19. However, that is not the same thing as saying that in any case where Ireland asserts extraterritorial jurisdiction s. 15 is

engaged. That is simply not so because Ireland does not assert extraterritorial jurisdiction solely, or even mainly, on the basis that

offences committed abroad are regarded under the law of the State as having been committed within the territory of the State. In

particular, it does not do so in the case of the extra-territorial jurisdiction asserted in respect of offences contrary to sections 71,

71A and 72 of the Act of 2006, as amended by the Act of 2009 and/or s. 7 of the Act of 2010, (assuming just for the purposes of the

argument that they are capable of being relied upon by the respondent).

8.20. This Court has further concluded that the respondent cannot in fact seek to rely on 71, 71A and 72 of the Act of 2006, as

amended by the Act of 2009 and/or s. 7 of the Act of 2010, because neither the Act of 2009, nor the Act of 2010, had been enacted

when the offending conduct that now constitutes the offences the subject matter of the present extradition request was committed.

As the applicant has pointed out, there is a constitutional prohibition on the retrospective penalisation of conduct. While thirty of the

fifty one alleged offences, i.e., counts 6-10, 15-23, 29-33, 38-39, 43-49 and 54-55, were committed after the 1st August, 2006, the

date on which the Act of 2006 came into force, s. 71 and s. 72 of that Act, as originally enacted, were much more restrictive in their

scope than they were post the amendments effected by the Act of 2009. In addition, s. 71A of the Act of 2006 was only inserted by

the Act of 2009.

8.21. An examination of s. 71 and s. 72 respectively of the Act of 2006 as they were originally enacted is instructive.

8.22. Section 71 of the Act of 2006, as originally enacted, provided:-

“Offence of conspiracy

71.— (1) Subject to subsections (2) and (3), a person who conspires, whether in the State or elsewhere, with one or

more persons to do an act –

(a) in the State that constitutes a serious offence, or

(b) in a place outside the State that constitutes a serious offence under the law of that place and which would, if

done in the State, constitute a serious offence

is guilty of an offence irrespective of whether such act actually takes place or not.

(2) Subsection (1) applies to a conspiracy committed outside the State if -

(a) ...

(b) ...

(c) ...

(d) the conspiracy is committed by an Irish citizen ....

(3) Subsection (1) shall also apply to a conspiracy committed outside the State in circumstances other than those

referred to in subsection (2), but in that case the [DPP] may not take, or consent to the taking of, proceedings for an

offence under subsection (1) except in accordance with section 74(3).

(4) ...

(5) ...”

8.23. Clearly s. 71 of the Act of 2006 as originally enacted, inter alia, asserts extra-territorial jurisdiction and thereby criminalises

certain actions that are committed “outside the State” in specified circumstances. This is to be contrasted with s. 15 of the Act of

1965, which is concerned with an offence that is regarded under the law of the State as having been “committed in the State” i.e.

where the State is the place of the commission of the offence and hence the territorial exception. Insofar as s. 71 of the 2006 Act,

as originally enacted, criminalises certain actions that are committed outside the State, that does not mean that the actions are

regarded under the law of the State as having been committed in the State: it merely makes such extra-territorial actions on the part

of an accused an extra-territorial criminal offence in the State.

8.24. The foregoing analysis is supported by section 74(1) of the 2006 Act (as originally enacted) insofar it provides:-

“Proceedings for an offence under section 71 or 72 ... in relation to an act committed outside the State may be taken

in any place in the State and the offence may for all incidental purposes be treated as having been committed in

that place.” (This Court’s emphasis.)

8.25. Section 72 of the Act of 2006, as originally enacted, provides (to the extent that it is relevant):-

“Organised Crime

72.— (1) A person who for the purpose of enhancing the ability of a criminal organisation to commit or facilitate –

(a) … [not relevant], or

(b) in a place outside the State, a serious offence under the law of that place where the act constituting the

offence would, if done in the State, constitute a serious offence,

knowingly by act –

(i) … [not relevant], and

(ii) in a case to which paragraph (b) applies, done in the State ... participates in or contributes to any activity of

the organisation is guilty of an offence. (This Court’s emphasis)

8.26. The import of this provision is entirely clear. The only basis upon which a person might be exposed to prosecution for enhancing

the ability of a criminal organisation to commit or facilitate the commission of a serious offence outside the State is if s/he does an

act in the State that participates in or contributes to any activity of that organisation. In terms of the allegations against the

respondent, all of the actions are alleged to have been committed in the U.S.A.

8.27. In the case of eight of the alleged offences, the evidence supports the respondent’s contention that he was outside of the

United States at the time that the offending conduct took place. Five of those offences concerned “wire fraud”, two of them

concerned “unlawful monetary transactions” and one concerned “aggravated identity theft”. However, there is no evidence that the

respondent was in fact in the State on the date of any or all of those offences. Equally, there is no evidence of the respondent

actually having done anything in the State, or elsewhere, on the date of any or all of those offences in furtherance of any alleged

offence in the United States of America, nor indeed is there any allegation that he may have done so. The appellant has submitted,

and the Court accepts, that the situation just described mirrors in many pertinent respects that which obtained in Attorney General v

Pocevicius [2013] IEHC 229. I said in that case:

“Turning then to the objection based upon s. 15 of the Act of 1965, I have previously expressed the view obiter dictum in

a case of Minister for Justice and Equality v. Connolly [2012] IEHC 575 (Unreported, High Court, Edwards J., 6th

December, 2012) that s. 20 of the Misuse of Drugs Act 1977 is both territorial and extra territorial in its application. While

it is extra territorial in that it allows a person to be tried in Ireland for aiding, abetting, counselling or inducing the

commission in a place outside the state of an offence punishable under a corresponding law in force in that place, it is

territorial in as much as the act constituting that aiding, abetting, counselling or inducing must be an act done within the

territory of Ireland. While the respondent has sought to suggest in his affidavit that he may have been in Ireland on the

25th September, 2008, the act or conduct alleged against him is possession (in the sense of exercising control) of drugs

in Stavanger on that date. Whether or not Mr. Pocevicius was in Norway or in Ireland, or in both places, on the date in

question is not determinative of whether the offence to which the extradition request relates could be tried in Ireland. In

order for the offence to be triable in Ireland it would have to be established that some act or conduct amounting to

aiding, abetting, counselling or inducing the commission of the drugs offence charged against him in Norway was

committed by the respondent while he was in Ireland. There is, however, nothing in the evidence capable of establishing

as a matter of probability that any act or conduct of that sort was committed in Ireland. At most there is a suggestion,

which is still being examined, that Mr. Pocevicius may have been in Ireland on the date in question. The evidence, such as

it is, does not establish that anything specific was done in Ireland to exercise control over drugs imported, or to be

imported, into Norway on that date. Accordingly, the Court is not satisfied that the offence in question is regarded under

the law of Ireland as having been committed in this state.”

8.28. It is clear that in respect of the eight offences in question, the respondent is alleged to have committed those offences on the

basis that he was party to a joint enterprise, and that acts committed by another party, or parties, to the said joint enterprise, and

who were within the jurisdiction of the requesting state on the relevant date or dates, are being attributed to the respondent. It is

perfectly lawful and legitimate for the requesting state to seek to do so, and it does not amount to a contention that those acts

were committed in Ireland.

8.29. The Court agrees with the submission of the applicant that there is no evidence whatsoever to suggest that the respondent

committed offences in the State, or for that matter performed acts in the State in furtherance of offences committed outside the

State, such as could possibly engage the territoriality bar provided for in s. 15 of the Act of 1965.

8.30. In the circumstances, the Court is also not disposed to uphold this ground of objection.

9. The Objection Based Upon The Rule Of Specialty

9.1. The respondent contends that because the indictment preferred against him indicates that if he is convicted of an offence or

offences of wire fraud or unlawful monetary transaction, or both, he will be liable to suffer forfeiture of any property, real or personal,

that constitutes, or is derived from, proceeds traceable to the commission of the offence(s), this Court should conclude that the

requesting state does not intend to respect the rule of specialty.

9.2. The Court is satisfied that this ground of objection is utterly misconceived. The fact that the respondent may face forfeiture of

property on the basis indicated does not mean that the respondent will be charged or tried with any offences additional to those to

which the present indictment relates. The possible forfeitures referred to in the indictment are not punishments for separate offences.

Rather, they are consequential orders that will follow in the event of the respondent being convicted of an offence or offences of wire

fraud and/or unlawful monetary transactions charged on the existing indictment. Moreover, any such forfeitures will be in addition to,

and are not an alternative to, any custodial or other penalty to which the respondent may be sentenced in the event that he is

convicted.

9.3. In circumstances where the Court is satisfied that there is no evidence of an intention by the requesting state to disrespect the

rule of specialty the Court is not disposed to uphold this objection.

10. The Objection Based Upon Correspondence

10.1. The Court has already identified, in part 4 of this judgment, the offending conduct that forms the basis of the charges of wire

fraud, unlawful monetary transaction and aggravated identity theft, respectively. In considering the issue of correspondence it is

necessary in each instance to consider that offending conduct and, in accordance with the approach commended by the Supreme

Court in Attorney General v Dyer [2004] 1 I.R. 40, to determine whether that conduct, regardless of the name given to it in the

requesting state, in its entirety or near-entirety, would constitute an offence which, if committed in this State, could be said to be a

corresponding offence of the required gravity.

10.2. The applicant submits that for the purposes of correspondence the relevant date is the date of the extradition request, i.e., the

5th August, 2011, and accordingly any consideration of Irish law for the purposes of the correspondence issue will be concerned with

Irish law as of that date. The Court agrees. That it is so is clear from the terms of s.10 of the Act of 1965 as amended.

The Wire Fraud Offences

10.3. The applicant has submitted that that correspondence may be established with the wire fraud offences by reference to a

variety of candidate offences in the State, which she has designated No. I to IV, respectively. She submits that this may be

considered by the actual payment of monies out, the agreement to grant a mortgage in respect of each property and theft of the

monies that were paid out.

10.4. The applicant has proffered as candidate offence No. I, the offence in Irish law of causing loss by deception contrary to s. 6 of

the Criminal Justice (Theft and Fraud Offences) Act 2001, (hereinafter the Theft and Fraud Offences Act of 2001). Her second

candidate offence, i.e., No. II, is the offence in Irish law of obtaining services by deception contrary to s. 7 of the Theft and Fraud

Offences Act of 2001. Her third candidate offence, i.e., No. III, is the offence in Irish law of theft, contrary to s. 4 of the Theft and

Fraud Offences Act of 2001. The fourth and final candidate offence is the offence in Irish law of participating in or contributing to

certain activities, contrary to s. 72 of the Act of 2006, as substituted by s. 6 of the Act of 2009.

10.5. It was further submitted that, if the offending conduct was committed in the State, the respondent could be prosecuted in

respect of the candidate offences I to IV on the basis of joint enterprise pursuant to common law and on the basis of being directly

complicit in the crime. The Court is asked to note that it is not necessary that another principal in the joint enterprise be convicted of

that offence or even identified.

10.6. It was contended in the alternative that the respondent could be prosecuted on the basis of secondary participation

(notwithstanding having been indicted as a principal offender) pursuant to s. 7(1) of the Criminal Law Act 1997, which provides:-

“Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted,

tried and punished as a principal offender.”

10.7. With respect to establishing liability on the basis of secondary participation, counsel for the applicant points out that it is only

necessary for the prosecution to prove that the principal offence has been committed with respect to aiding or abetting. It is not,

however, necessary that any individual be convicted for or even apprehended on suspicion of the principal offence. All that is

necessary is that the jury be satisfied that the principal offence was committed where the offence is prosecuted on the basis of

aiding or abetting.

10.8. While the respondent has raised a correspondence objection, he has not sought to argue that the candidate offences, or any of

them, are inappropriate on any substantive basis. The Court has given detailed consideration to the ingredients of each of the

candidate offences, which are helpfully set out in the written submissions filed on behalf of the applicant, and to the offending

conduct as described in the extradition request. Having done so it is satisfied that correspondence can indeed be established with

each of those offences. However, it is only necessary for the purposes of the proceedings to find correspondence with one candidate

offence, and in the Court’s view the candidate offence that most closely corresponds is No. I, i.e., the offence of causing loss by

deception contrary to section 6 of the Theft and Fraud Offences Act of 2001.

The Unlawful Monetary Transaction Offences

10.9. The applicant has submitted that correspondence may be established with the unlawful monetary transaction offences by

reference to a variety of candidate offences in the State, which she has again designated I to IV, respectively, for the purposes of

the exercise the Court is engaged in. Once again, it is contended that, in respect of each offence in this category, correspondence

may be established with candidate offences I to IV either solely, or on the basis of joint enterprise, or indeed on the basis of

secondary participation pursuant to s. 7 of the Criminal Law Act 1997.

10.10. The applicant has proffered as candidate offence No. I, the offence in Irish law of making gain by deception contrary to s. 6 of

the Theft and Fraud Offences Act of 2001. Her second candidate offence, i.e., No. II, is the offence in Irish law of theft, contrary to

s. 4 of the Theft and Fraud Offences Act of 2001. Her third candidate offence, i.e., No III, is the offence in Irish Law of money

laundering contrary to s. 7 (1) of the Act of 2010. The fourth and final candidate offence is again the offence in Irish law of

participating in or contributing to certain activities, contrary to s. 72 of the Act of 2006, as substituted by s. 6 of the Act of 2009.

10.11. Again, the Court has given detailed consideration to the ingredients of each of the candidate offences, which are helpfully set

out in the written submissions filed on behalf of the applicant, and to the offending conduct as described in the extradition request.

Having done so, and in circumstances where the respondent has raised a correspondence objection, but has not sought to argue that

the candidate offences, or any of them, are inappropriate on any substantive basis, the Court is satisfied that correspondence can

indeed be established with each of the candidate offences. However, as it is only necessary for the purposes of the proceedings to

find correspondence with one candidate offence, the candidate offence that most closely corresponds in the Court’s view is No. III,

i.e., the offence in Irish Law of money laundering contrary to s. 7(1) of the Act of 2010.

The Aggravated Identity Theft Offences

10.12. The applicant has submitted that correspondence may be established with the aggravated identity theft offences by reference

to a variety of candidate offences in the State, which, in this instance, she has designated No. I to V, respectively, for the purposes

of the exercise the Court is presently engaged in. Once again, it is contended that in respect of each offence in this category,

correspondence may be established with candidate offences No. I to V either solely, or on the basis of joint enterprise, or indeed on

the basis of secondary participation, pursuant to s. 7 of the Criminal Law Act, 1997.

10.13. In this instance, the applicant has proffered as candidate offence No. I the offence in Irish law of forgery, contrary to s. 25 of

the Theft and Fraud Offences Act of 2001. Her second candidate offence, i.e., No. II, is the offence in Irish law of using a false

instrument, contrary to s. 26 of the Theft and Fraud Offences Act of 2001. Her third candidate offence, i.e., No. III, is the offence in

Irish Law of having custody or control of a false instrument with intent, contrary to s. 29(1) of the Theft and Fraud Offences Act of

2001. The fourth candidate offence i.e., No. IV, is the offence in Irish law of having custody or control of a false instrument without

lawful excuse, contrary to s. 29(2) of the Theft and Fraud Offences Act of 2001. The fifth and final candidate offence i.e., No. V, is

again the offence in Irish law of participating in or contributing to certain activities, contrary to s. 72 of the Act of 2006, as

substituted by s. 6 of the Act of 2009.

10.14. Yet again, the Court has given detailed consideration to the ingredients of each of the candidate offences, which are helpfully

set out in the written submissions filed on behalf of the applicant, and to the offending conduct as described in the extradition

request. Having done so, and in circumstances where the respondent has raised a correspondence objection, but has not sought to

argue that the candidate offences, or any of them, are inappropriate on any substantive basis, the Court is satisfied that

correspondence can indeed be established with each of the candidate offences. However, as it is only necessary for the purposes of

the proceedings to find correspondence with one candidate offence, the candidate offence that most closely corresponds in the

Court’s view is No. I., i.e., the offence in Irish law of forgery, contrary to s.25 of the Theft and Fraud Offences Act of 2001.

11. Minimum Gravity

11.1. What is required to be established in terms of minimum gravity is set forth in s.10(1A) of the Act of 1965, as inserted by the Act

of 2001 (infra para 2.7). The Court must be satisfied that in respect of each offence for which the respondent is sought to be

extradited, the offence in question is punishable –

“(a) under the laws of that country [i.e., the requesting state], by imprisonment or detention for a maximum period of not

less than one year or by a more severe penalty, and

(b) under the laws of the State, by imprisonment or detention for a maximum period of not less than six months or by a

more severe penalty,”

11.2. The 29 counts of Wire Fraud in violation of Title 18, United States Code §§ 1343 and 2 carry, in each instance, a basic maximum

potential penalty of imprisonment for up to twenty years; or, if the violation affects a financial institution, of imprisonment for up to

thirty years. Clearly, the one year threshold specified in s.10(1A)(a) is met.

11.3. In the case of the 29 counts of Wire Fraud in violation of Title 18, United States Code §§ 1343 and 2, this Court has found

correspondence with the offence in Irish law of causing loss by deception contrary to section 6 of the Theft and Fraud Offences Act

of 2001. The offence of causing loss by deception contrary to section 6 of the Theft and Fraud Offences Act of 2001, carries a

maximum potential penalty of up to five years imprisonment. In those circumstances, the six month threshold specified in s. 10(1A)(b)

is met.

11.4. The 6 counts of Unlawful Monetary Transaction in violation of Title 18, United States Code §§ 1957 and 2 carry, in each

instance, a basic maximum potential penalty of imprisonment for up to ten years. The one year threshold specified in s. 10(1A)(a) is

therefore comfortably met.

11.5. In the case of the 6 counts of Unlawful Monetary Transaction in violation of Title 18, United States Code §§ 1957 and 2, this

Court has found correspondence with the offence in Irish law of money laundering contrary to s. 7(1) of the Act of 2010. The offence

of money laundering contrary to s. 7(1) of the Act of 2010 carries a maximum potential penalty of up to fourteen years imprisonment.

In those circumstances the six month threshold specified in s. 10(1A)(b) is met.

11.6. The 16 counts of Aggravated Identity Theft in violation of Title 18, United States Code § 1028A, carry, in each instance, a

basic maximum potential penalty of imprisonment for up to two years. The one year threshold specified in s. 10(1A)(a) is therefore

met

11.7. In the case of the 16 counts of Aggravated Identity Theft in violation of Title 18, United States Code § 1028A., this Court has

found correspondence with the offence in Irish law of forgery, contrary to s. 25 of the Theft and Fraud Offences Act of 2001. The

offence of forgery, contrary to s. 25 of the Theft and Fraud Offences Act of 2001 carries a maximum potential penalty of up to ten

years imprisonment. In those circumstances the six month threshold specified in s. 10(1A)(b) is met.

11.8. In the circumstances, the Court is satisfied that the offences to which the extradition request relates meet minimum gravity

requirements.

12. Conclusions.

12.1. The Court is not disposed to uphold any of the objections raised by the respondent to his extradition.

12.2. The Court is satisfied that the extradition of the respondent has been duly requested.

12.3. The court is further satisfied that Part II of the Act of 1965 applies to the requesting country.

12.4. The Court is further satisfied that extradition of the respondent is not prohibited under Part II of the Act of 1965, or by the

relevant extradition provisions within the meaning of the Act of 1965.

12.5. The Court is further satisfied that the documents required to support a request for extradition under s.25 of the Act of 1965

have been produced.

12.6. In the circumstances, the Court is required to make an Order in accordance with s. 29 of the Act of 1965, committing the

respondent to a prison there to await the Order of the Minister for Justice, and it will do so, but without prejudice to the respondent’s

entitlement in accordance with s. 29(5) of the Act of 1965, to file an appeal on a point of law before the Court of Appeal, or in the

alternative to apply to the Supreme Court for leave to appeal to that Court on a similar basis, and his further right to seek to be

admitted to bail in the context of any such appeal.