If SBF's Charges Post-Extradition Are Allowed to Stand, It Will Create a Loophole — Counsel Argues

ARGUMENT

II. Mr. Bankman-Fried Has Standing to Invoke the Rule of Specialty.

C. Holding That an Individual Defendant Does Not Have Standing Under These Circumstances Would Create Untenable Precedent.

Holding that the circumstances present here—where the requested state has denied a request to extradite the defendant on a particular charge and a treaty provision expressly requires affirmative consent to charges added post-extradition—do not confer standing on an individual defendant would encourage prosecutorial overreach while trampling on requested states’ treaty rights. For example, such a holding will likely result in scenarios where prosecutors may circumvent the terms of treaties by obtaining extradition based on offenses that are considered criminal in the requested state, and once the defendant is in the government’s custody, prosecuting the defendant for offenses that the requested state does not consider criminal. See Lewis Decl. ¶ 65; cf. Alvarez-Machain, 504 U.S. at 677, 112 S. Ct. at 2200 (Stevens, J. dissenting) (interpreting treaty as not incorporating the rule of specialty “would mean that a country could request extradition of a person for one of the seven crimes covered by the treaty, and then try the person for another crime, such as a political crime, which was clearly not covered by the treaty”—a result that would be clearly contrary to the treaty’s purpose). This would place the burden on the requested state to monitor, and intervene as required, in the prosecutions of defendants it has extradited in order to ensure that its treaty rights are respected, which would defeat the purpose of consent provisions like the one contained in Article 14 of the Extradition Treaty.

The ongoing prosecution of Mr. Bankman-Fried on Count 12 demonstrates that the concern identified above is a real possibility. The Minister omitted Count 12 from the Warrant of Surrender, but, if Mr. Bankman-Fried is denied standing to raise this issue, the only way the Bahamas can vindicate its rights is by running an objection up the chain through the government bureaucracy and via diplomatic channels to the United States. Allowing the Government to do so would create a loophole it could improperly exploit to circumvent the United States’ treaty obligations. Accordingly, we respectfully request that the Court find that Mr. Bankman-Fried has standing here to assert the rule of specialty.