The US May Only Prosecute SBF on Post-Extradition Charges if the Bahamas Gives its Consent

ARGUMENT

III. The Bank Fraud, Unlicensed Money Transmitting, and FCPA Conspiracy Charges (Counts 9, 10, and 13) Violate the Rule of Specialty and Must Be Dismissed.

B. The Bahamas Has Not Given Its Express Consent to Counts 9, 10 and 13 as Required Under the Extradition Treaty.

The Government may only prosecute Mr. Bankman-Fried for Counts 9, 10 and 13 if it follows the procedure for obtaining the Bahamas’s consent set forth in the Treaty, which the defense understands it has not. As stated above, Article 14 of the Extradition Treaty provides that an extradited defendant “may only be detained, tried, or punished in the Requesting State for the offense for which extradition was granted, or – . . . any offense in response of which the executive authority of the Requested State, in accordance with its laws, has consented to the person’s detention, trial, or punishment. . . .” Ex. 2 at SDNY_03_01098074 to -8075 (emphasis added). Thus, the plain terms of the Extradition Treaty require that the Government obtain the express consent of the Bahamas to prosecute Mr. Bankman-Fried on any new charges brought after Mr. Bankman-Fried’s extradition—silence cannot suffice for consent. See Yoo, 43 F.4th at 71–72 (“In interpreting both statutes and treaties, courts seek to avoid readings that render statutory language surplusage or redundant. But where the language of a treaty is plain, a court must refrain from amending it because to do so would be to make, not construe, a treaty.”) (citations and quotation marks omitted); see also Lewis Decl. ¶¶ 4, 45, 54-65, 69 (Article 14(1)(b) of the Extradition Treaty and Section 7(4)(a)(iii) of the Extradition Act require the Bahamas’s express consent to new charges different than those on which extradition was granted).

As noted above, the defense understands the Government has informed the Bahamas of the new charges added in the S3 Indictment and S5 Indictment, but the Bahamas has not consented to those charges. See Letter from Nicolas Roos et al. to the Honorable Lewis A. Kaplan, February 22, 2023, ECF No. 84; Sealed Order at 1, Mar. 28, 2023, ECF No. 114. That the Government felt the need to notify the Bahamas at all of the S3 Indictment and the S5 24 Indictment indicates it recognizes that Counts 9, 10 and 13 are distinct from the offenses and conduct encompassed by the Warrant of Surrender and that the Bahamas’s consent is required to proceed on those charges.

1. In the Defense’s Understanding, the Government Has Not Provided Evidence Sufficient to Satisfy the Dual Criminality Requirement and the Bahamas is Thus Unable to Give Its Consent.

Moreover, a condition precedent to obtaining the Bahamas’s consent is the Government’s provision of information to the Bahamas to enable it to determine whether Counts 9, 10 and 13 satisfy the dual criminality requirement. The defense is not aware of the Government providing any such information to the Bahamas. Indeed, when asked to provide copies of any such communications, the Government declined to do, only producing the formal extradition documents in the possession of the United States Attorney’s Office and the Federal Bureau of Investigation. Thus, the Bahamas lacks the information necessary to determine whether dual criminality is satisfied and cannot consent to the addition of Counts 9, 10 and 13.

Article 14(1)(b) of the Extradition Treaty provides that the Bahamas can only consent to the addition of offenses “in accordance with its laws” and after requiring the submission of documents under Article 8, including “a statement of the facts of the case” and “such evidence as would justify the committal for trial of the person if the offense had been committed in the Requested State or as would justify the committal for extradition of the person in accordance with the laws of the Requested State.” Ex. 2 at SDNY_03_01098067, -8068, -8075. The Bahamas Extradition Act in turn provides that the Minister can give consent only for “extraditable offence[s],” meaning offenses for which “the act or omission constituting the offence, or the equivalent act of omission, would constitute an offence against the law of The Bahamas if it took place within The Bahamas,” i.e., the dual criminality requirement. Ex. 3, §§ 5(1)(b), 7(4)(a)(iii); Lewis Decl. ¶ 4, 56-65, 69. Read together, these provisions mean the Government must submit to the Bahamas sufficient evidence to allow the Bahamas to determine whether the offenses on which extradition is sought satisfy the dual criminality requirement. That the Minister must conduct a dual criminality analysis prior to consenting to any new charges is another reason why, in addition to the express language of Article 14(1)(b), silence on the part of the Bahamas cannot be construed as consent. See id. ¶¶ 4, 63. Here, the defense is not aware of any information the Government has provided to the Bahamas that satisfies the Government’s treaty obligations and enables the Bahamas to determine whether the conduct underlying the new charges would be considered criminal in the Bahamas and thus satisfy the dual criminality requirement.

The importance of holding the Government to its obligations under the Extradition Treaty is underscored by the fact that there is clear authority holding that conduct that may violate the FCPA is not considered criminal in the Bahamas. The United Kingdom’s Judicial Committee of the Privy Council, the highest court of appeal for the Commonwealth of the Bahamas, held in 2012 that charges under the FCPA were not extraditable offenses because Bahamian law does not prohibit foreign bribery. See Ex. 5 (Superintendent of Her Majesty’s Foxhill Prison and the Government of the United States of America v. Viktor Kozeny, [2012] UKPC 10 Privy Council Appeal No. 0073 of 2010 (appeal taken from Bah.) at [50]-[53]; Lewis Decl. ¶ 64. “[I]n mulling dual criminality concerns, courts are duty bound to defer to a surrendering sovereign’s reasonable determination that the offense in question is extraditable.” United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995). Thus, the Privy Council’s opinion in Kozeny must be accorded great deference and establishes that the FCPA charge against Mr. Bankman-Fried runs afoul of the dual criminality requirement. Allowing the Government to spurn its obligations to proffer evidence to satisfy the dual criminality requirement here would allow the United States 26 to substitute its own judgment for the clear directive from the requested state regarding interpretation of its own laws and violate principles of international comity. Thus, the bank fraud, unlicensed money transmitting, and FCPA conspiracy charges (Counts 9, 10 and 13) must be dismissed due to the Government’s failure to proffer evidence sufficient to satisfy the dual criminality requirement under the Extradition Treaty.