Sam Bankman-Fried's Warrant of Surrender Did Not Include Charges Related to Fraud, Others

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.

A. Counts 9, 10 and 13 Are “Separate Offenses” From Those on Which Mr. Bankman-Fried’s Extradition Was Granted.

The rule of specialty precludes the Government from prosecuting Mr. Bankman-Fried on the bank fraud, unlicensed money transmitting, and FCPA conspiracy charges (Counts 9, 10, and 13, respectively). To determine whether the rule of specialty has been violated, courts in the Second Circuit consider whether the challenged charges are “separate offenses” from those on which extradition was granted. United States v. Paroutian, 299 F.2d 486, 490–91 (2d Cir. 1962); Fiocconi v. Att’y Gen. of the United States, 462 F.2d 475, 480-81 (2d Cir. 1972) (applying the Paroutian test and noting that “[t]he ‘principle of specialty’ reflects a fundamental concern of governments that persons who are surrendered should not be subject to indiscriminate prosecution by the receiving government, especially for political crimes.”). In determining whether charges added after extradition are “separate” for purposes of the rule of specialty, courts have considered whether the government seeks to add charges against a defendant that the requested state “was not aware [of] when it agreed to his extradition.” United States v. Nosov, 153 F. Supp. 2d 477, 480 (S.D.N.Y. 2001) (holding that the rule of specialty was not violated where the superseding indictment added new counts implicating extradited defendant’s codefendants, and not the defendant); see also United States v. Waknine, No. CR 04-373(A)-DT, 2005 WL 8156937, at *3 (C.D. Cal. Oct. 11, 2005) (holding that charges based on newly alleged 22 specified unlawful activity in superseding indictment were not “of the same character” as those identified in extradition order where they were not “included in the original indictment or overlap [with] allegations contained therein”) (quotation marks and citation omitted).

Here, the criminal statutes and the factual allegations underlying Counts 9, 10 and 13 are not referenced at all in the Warrant of Surrender or the Diplomatic Note. See Ex. 2 at SDNY_03_01098056; Ex. 1 at Ex. SBF 1 at 1-6. Neither of these documents reference the additional offenses by name or by statutory provision, and there is no reference to any U.S. bank accounts, including any bank accounts affiliated with FTX or Alameda, any transfers of funds through the U.S., any U.S. regulatory licenses that any FTX entity was purportedly required to obtain, any freezing of Alameda’s accounts on Chinese cryptocurrency changes or any payments Alameda allegedly made to unfreeze those accounts. And there is no reason to believe the Bahamas would have understood that the Government intended to prosecute Mr. Bankman-Fried on these additional charges as they are substantively distinct from the charges laid out in the Diplomatic Note, and are premised on factual allegations that were not included in the Diplomatic Note. See Lewis Decl. ¶¶ 45, 47-52. This accords with the treatment of these offenses by U.S. courts, which generally view the mail, wire and bank fraud statutes as establishing separate offenses. See, e.g., Loughrin v. United States, 573 U.S. 351, 359, 134 S. Ct. 2384, 2391 (2014) (“But the two statutes [the mail fraud and bank fraud statutes], as an initial matter, have notable textual differences.”); United States v. Henderson, 968 F.2d 1219 (7th Cir. 1992) (“[W]ire fraud, mail fraud and bank fraud are separate offenses requiring separate and distinct elements of proof.”). Thus, Counts 9, 10 and 13 are “separate offenses” for which Mr. Bankman-Fried may not be prosecuted absent the express consent of the Bahamas as discussed further below.