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People v. Minor8/31/2004
in Belgrade. He was extradited only for passport fraud and was convicted**244 of that crime upon his return to America.
*1438 In sentencing Lazarevich, the trial court selected an aggravated term, departing upward based on the finding that Lazarevich committed the crime to facilitate another: child abduction. The court also considered as an aggravating factor Lazarevich's prior conviction in Belgrade for child abduction. Echoing Minor's claim here, Lazarevich argued on appeal that the court's sentencing use of the prior offense for which extradition was denied violated the extradition order and the doctrine of speciality. The Ninth Circuit disagreed.
The court noted, initially, that the extradition treaty between the United States and the Netherlands protected an extradited person from being " 'detained, tried, or punished in ... the Requesting State for an offense other than that for which extradition has been granted.' " (Lazarevich, supra, 147 F.3d at p. 1063.) The court further noted child abduction was not an offense for which Lazarevich was extradited. The court thus framed the issue on appeal as follows: "Lazarevich was neither detained nor tried on child abduction charges. The question here is whether he was punished for child abduction." (Ibid.)
Acknowledging that Lazarevich's sentence for passport fraud was lengthened because of his child abduction conviction, the court nonetheless concluded he was not punished for the child abduction. Quoting language from the Supreme Court's decision in Witte v. United States, supra, 515 U.S. at page 399, 115 S.Ct. 2199, the court stated that " 'use of evidence of related criminal conduct to enhance a defendant's sentence for a separate crime within the authorized statutory limits does not constitute punishment.' " (Lazarevich, supra, 147 F.3d at p. 1064.) The court concluded the trial court's enhancement of the sentence based on the child abduction violated neither the extradition order nor the doctrine of speciality.
Minor tries to distinguish Lazarevich on the ground the extradition order there lacked the "specific limiting language" found in his own extradition order--language which, Minor claims, barred sentence enhancement based on the Riverside crimes. In making this argument, Minor relies on the written opinion of Professor M. Cherif Bassiouni, an expert on international extradition law and Italian law, "who is also a Native Italian." In the affidavit, Bassiouni expresses the opinion that the Italian extradition order "excludes anything related to the Riverside conviction," including sentence enhancement of the Orange County crimes. (Italics added.) He bases that opinion on the "specific limiting language" of the extradition order, which he identifies as the sentence in which the court "conditions" extradition on the requirement that Minor suffer no restriction on his liberty for "facts occurring prior to [his] surrender, other than those facts for which extradition has been granted."
*1439 The professor's opinion of the effect of that language is curious, given that this "specific, limiting language" is nothing more than a restatement of the doctrine of speciality itself. Bassiouni states that "the Italian Extradition Order ... explicitly rejects the extradition of Mr. Minor for the Riverside County conviction, which includes the revocation of probation and sentence enhancement. This Court cannot derogate from the explicit order of the Republic of Italy[.]" (Italics added.) We think the professor's opinion overreaches. While the Italian extradition order barred prosecution and punishment for the Riverside crimes, that prohibition did not extend to sentence enhancement. As already explained, sentence enhancement based on a prior crime does not punish that crime.
**245 As
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