The Bahamas Would Reject the Addition of New Charges Against SBF Post Extradition

ARGUMENT

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

B. The Second Circuit Has Interpreted Rauscher to Confer Standing on Defendants Where the Requested State Would Object.

The Second Circuit has interpreted Rauscher to confer standing on defendants in certain instances. In Fiocconi v. Attorney General of the United States, 462 F.2d 475, 479-80 (2d Cir. 1972), the Second Circuit recognized that Rauscher provided the defendant with a remedy for violations of the rule of specialty, though it limited such remedy to instances where “the 17 surrendering state would regard the prosecution at issue as a breach.” More recently, the Second Circuit in United States v. Barinas, 865 F.3d 99 (2d Cir. 2017) applied the test set forth in Fiocconi. In Barinas, the Second Circuit held that the rule of specialty “can afford ‘the extraditee’ himself a ‘remedy only if the surrendering government would object, since the underlying substantive wrong, which grows out of international law, is only to the latter.’” 865 F.3d at 105 (quoting Fiocconi, 462 F.2d at 479-80 n.8) (emphasis added)

There, the Second Circuit considered the 1909 treaty between the United States and the Dominican Republic. See Convention Between the United States and the Dominican Republic for the Extradition of Criminals, June 19, 1909, 36 Stat. 2468, 1910 WL 19359 (the “D.R. Treaty”). The D.R. Treaty was signed in 1909 and is bare bones compared to more modern extradition treaties. While the D.R. Treaty incorporates the dual criminality requirement and the rule of specialty, it does not require that the requested state expressly consent to any charges added after extradition or lay out a procedure for determining whether the rule of specialty and dual criminality requirement have been complied with following extradition. See D.R. Treaty, arts. I & IV. Based on the text of the D.R. Treaty, the Barinas Court determined that the defendant did not have standing to invoke the rule of specialty because the Dominican Republic did not assert any objection to the charge added following extradition. See 865 F.3d at 105.

By contrast, the Bahamas did not grant extradition on Count 12 and has indicated that it “would object” to Counts 9, 10 and 13 in the form of a standing objection in the Extradition Treaty to the addition of new charges following extradition. As discussed above, the Government requested Mr. Bankman-Fried’s extradition for the campaign finance conspiracy charge (Count 12) and the Minister of Foreign Affairs omitted it from the listed charges in the Warrant of Surrender. See also Lewis Decl. ¶¶ 4, 17, 37. Further, Article 14(1)(b) of the 18 Extradition Treaty provides that a defendant may only be prosecuted for offenses other than those for which extradition was granted if the requested state’s executive “has consented” to the defendant’s “detention, trial, or punishment” on such offenses. Ex. 2 at SDNY_03_01098074 to -8075. Article 14 in effect creates a default standing objection by the requested state to any new charges that may be asserted against an extradited defendant unless and until it affirmatively provides its consent. An expert in extradition law, including in the Bahamas, has confirmed this reading of the Extradition Treaty. See Lewis Decl. ¶¶ 4, 55, 68.

Any other interpretation of the Extradition Treaty would reduce Article 14(1)(b) to surplusage, which must be avoided as a matter of statutory construction. See Yoo v. United States, 43 F.4th 64, 71–72 (2d Cir. 2022) (“[A] court must refrain from amending [a treaty] because to do so would be to make, not construe, a treaty.”). Reading Article 14(1)(b) as not creating a standing objection would render it essentially meaningless, because the requested state would have to affirmatively object to any post-extradition charges to enforce its rights under the Extradition Treaty, regardless of whether the treaty included a provision requiring consent similar to Article 14(1)(b).

Thus, the omission of Count 12 from the Warrant of Surrender and the Extradition Treaty show that the Bahamas “would object” to prosecuting Mr. Bankman-Fried for Counts 9, 10, 12, and 13 and satisfy Barinas’s prerequisite to individual standing.