It might very much help me help Julian Assange if you could point me to URLs containing the filings of the US Federal Government in the Assange extradition case. I hope you agree that I can be helpful, but it also helps me a lot to have something I can work with: I can't very well spot flaws in their arguments if I do not have copies of their arguments. And I don't know how to get them.
"167 18 U.S.C. §3290. Most courts construe section 3290 to require flight with an intent to avoid prosecution or a
departure from the place where the offense occurred with the knowledge that an investigation is pending or being
conducted, United States v. Florez, 447 F.3d 145, 150-52 (2d Cir. 2006)(citing authority in accord). Thus, a suspect in
the case of an federal extraterritorial offense is not likely to be considered a fugitive, if he simply remains in the
country were of the offense was committed".
I realize that there is an issue of whether Assange remained "in U.K." due to his entry in the Ecuadorian Embassy in London. This is the OTHER "extraterritoriality" issue of Assange, but I don't consider it definitive that Assange somehow "fled" the U.K. I have seen articles which suggest that it is merely a legal fiction that a country's embassy is to be considered 'foreign territory' for the purposes of enforcing criminal law. That relatively recent incident in which Jamal Khashoggi was murdered in the Saudi Araban embassy in Turkey is instructive. https://en.wikipedia.org/wiki/Assassination_of_Jamal_Khashoggi
"In construing the flight requirement of § 3290, we begin with Streep v. United States, 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365 (1895), in which the Supreme Court considered the meaning of the phrase, “fleeing from justice” as used in an earlier statute creating an exception to the application of a limitations period. In Streep, the Court stated:
"It is unnecessary, for the purposes of the present case, to undertake -to give an exhaustive definition of the[ ] words [“any person fleeing from justice”]; for it is quite clear that any person who takes himself out of the jurisdiction, with the intention of avoiding being brought to justice for a particular of-fence, can have no benefit of the [statute of] limitationfs], at least when prosecuted for that offence in a court of the United States."
"Drawing from this language, most courts, including our own, have concluded *151that a person’s mere absence from a jurisdiction is insufficient, by itself, to demonstrate flight under § 3290 (or its statutory predecessor); there must be proof of the person’s intent to avoid arrest or prosecution. As we observed in Jhirad v. Ferrandina, in the context of an extradition proceeding, “the phrase ‘fleeing from justice’ carries a common sense connotation that only those persons shall be denied the benefit of the statute of limitations who have absented themselves from the jurisdiction of the crimewith the intent of escaping prosecution.” 486 F.2d 442, 444-45 (2d Cir.1973) (“Jhirad I”) (emphasis added); accord United States v. RiveraVentura, 72 F.3d 277, 283 (2d Cir.1995). Many of our sister circuits agree that such intent is a necessary component of flight. See Ross v. United States Marshal, 168 F.3d at 1194 (10th Cir.1999) (holding that “fleeing from justice” requires proof that “the accused acted with the intent to avoid arrest or prosecution”); United States v. Greever, 134 F.3d at 780 (6th Cir.) (holding that § 3290 requires proof “that the defendant concealed himself with the intent to avoid prosecution”); United States v. Fonseca-Machado, 53 F.3d 1242, 1244 (11th Cir.1995) (holding that “a fugitive from justice ... must be found to have absented himself from the jurisdiction with the intent to avoid prosecution”); United States v. Marshall, 856 F.2d at 900 (7th Cir.) (concluding that “defendant’s intent to avoid arrest or prosecution must be proved in order to trigger the tolling provisions of Section 3290”); United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir.1976) (holding that “intent to avoid prosecution is an essential element of ‘fleeing from justice’ ”); Brouse v. United States, 68 F.2d 294, 295 (1st Cir.1933) (holding that “essential characteristic of fleeing from justice is leaving one’s residence, or usual place of abode or resort, or concealing one’s self, with the intent to avoid punishment”).
[end of quote]
Presumably, "the jurisdiction" here means the location of the crime if it is committed within a state or territory of the United States, not the foreign location where the defendant was when he ostensibly committed the act which government authorities assert is a crime.
"With the explosion in cross-border criminality made possible by modem technology and transportation systems, the globalization of commerce and finance,
and the Internet, these are issues that courts attempt to answer on a daily basis.
But thousands of federal crimes were enacted before these circumstances conspired to make criminality increasingly transnational, and thus the statutes say
nothing about their geographical scope. Courts struggle to determine whether to
apply federal statutes to trans-border criminal activity because "[t]he case law is
so riddled with inconsistencies and exceptions." 2 "[T]he only thing courts and
scholars seem to agree on is that the law in this area is a mess."3 " [end of quote]
Further, on page 1026, it continues:
" The federal courts generally apply two canons of construction to determine the
geographic scope of a statute that, on its face, does not address the question (a
geoambiguous statute): a presumption against extraterritoriality, which the
Supreme Court introduced in its current form in 1991's EEOC v. Arabian
American Oil Co. (Aramco),7 and the Charming Betsy canon, which the Court
often relied upon prior to Aramco. In the Court's last three extraterritoriality
cases-Morrison v. National Australia Bank Ltd.,' Kiobel v. Royal Dutch
Petroleum Co.,9 and RJR Nabisco, Inc. v. European Communityo-it emphasized the importance of a strong presumption against extraterritoriality. This presumption has become something approaching a clear statement rule (although the
Court disclaims this reality"): "When a statute gives no clear indication of an
extraterritorial application, it has none." 12 The presumption applies "regardless of
whether the statute in question regulates conduct, affords relief, or merely confers
jurisdiction."13 The presumption against extraterritoriality means that the Court
assumes that Congress intends its statutes to apply only to conduct within the territory of the United States unless it says otherwise. This exclusive emphasis on
conduct within the territory of a State reflects the subjective territorial principle
under the international law of prescriptive jurisdiction. " [end of quote]
And see pages 1052-1053:
"In 2010, the Court strongly signaled that these antitrust cases are sui generis by
insisting on a strong presumption against extraterritoriality in Morrison v.
National Australia Bank.1 6 7 The case was a blockbuster because the Court overruled decades of courts of appeals case law by dramatically limiting the scope of
the securities fraud laws. The respondent, National Australia Bank (National), a
non-U.S. bank whose shares were not traded on any U.S. exchange, purchased respondent HomeSide Lending, a company headquartered in Florida. 168 A few
years after this purchase, National had to write down the value of Homeside's
assets, causing a drop in National's share price.16 9 Petitioners, Australians who
purchased National's stock before the write-downs, sued National, Homeside,
and officers of both companies in federal district court for violating sections
10(b) and 20(a) of the Securities and Exchange Act of 1934170 and SEC Rule
lOb-5. 17 1 Petitioners claimed that HomeSide and its officers, with the knowledge
of National and its chief executive, manipulated financial models to make the company appear more valuable than it was. 17 2 In short, this was a "foreign-cubed" 173
securities fraud case in that the parties were Australian, the shares were not listed
on a U.S. exchange, and the shares were purchased and sold in Australia. The petitioners, however, believed that because the fraudulent conduct took place, at least
in part, in the United States, their civil securities fraud suit belonged in a U.S.
court. 174
The district court dismissed the case for want of subject-matter jurisdiction,
concluding that the fraudulent acts alleged in the United States were, "at most, a
link in the chain of an alleged overall securities fraud scheme that culminated
abroad."1 75 The Second Circuit affirmed because the fraudulent acts performed in
the United States did not "compris[e] the heart of the alleged fraud." 17 6 The
Supreme Court reversed, making three critical rulings.
First, until Morrison, 7 all the circuits treated extraterritoriality as a question
going to the courts' subject-matter jurisdiction in securities and other cases. In
Morrison, however, the Supreme Court made clear for the first time that the extraterritoriality question was not jurisdictional; rather it relates only to whether a
case can be made on the merits. 178 It explained:
the FTAIA's codification of an effects test as applied to export activity may preclude the Court from
revisiting its precedents, at least in that context.
" [T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits,
which is a merits question. Subject-matter jurisdiction, by contrast, "refers to a
tribunal's 'power to hear a case."' It presents an issue quite separate from the
question whether the allegations the plaintiff makes entitle him to relief. The
District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate
the question whether § 10(b) applies to National's conduct.179
As we shall see in our roadmap discussion in section III.C, this ruling has important procedural implications. 8 0
Second, the Supreme Court, again overruling decades of lower court precedent,
held that section 10(b) does not apply beyond the shores of the United States after
applying a strong presumption against extraterritoriality. Until Morrison, the circuits had decided whether they had jurisdiction over securities fraud claims that
involved transnational elements by applying the so-called "conduct-and-effects"
test. This test was derived from international law's understandings of what constituted a "territorial" application of legislation. It presumed that where subjective
territoriality (domestic conduct) or objective territoriality (domestic effects) were
present, the case was a territorial suit and no issue of statutory extraterritoriality
was raised. The test was pioneered by the Second Circuit and adopted by the
other circuits. The Court emphatically rejected the Second Circuit's conductand-effects test as fundamentally inconsistent with the presumption against
extraterritoriality.s' "
[end of quote]
The material continues:
"Having rejected the circuit courts' test, the Court applied its presumption against extraterritoriality. It examined the language and history of section 10(b) and concluded that there was "no affirmative indication in the
Exchange Act that section 10(b) applies extraterritorially" and thus nothing to
rebut the presumption.1 8 6 Accordingly, the Court ruled that the securities fraud
provisions at issue did not apply extraterritorially.
The Morrison Court's third and final holding related to the question of when a
given securities fraud case could be deemed extraterritorial, and thus precluded,
as opposed to territorial or domestic, in which case it could proceed. Having lost
the battle of extraterritoriality, the petitioners attempted to win the war by arguing
179. Id. at 254 (citations omitted).
180. that they sought only domestic application of section 10(b). Petitioners contended
that, given that the fraud was hatched in Florida and false statements were made
there, the fraud was committed in the United States."
"Acknowledging that "it is a rare case of prohibited extraterritorial application
that lacks all contact with the territory of the United States," the Court applied a
"focus" test, which asks what conduct is the "object[] of the statute's solicitude." 187 This test looks to "those transactions that the statute seeks to 'regulate'
and to the "parties to those transactions that the statute seeks to 'protec[t]."'1 88
The Court reasoned that section 10(b) does not "punish deceptive conduct, but
only deceptive conduct 'in connection with the purchase or sale of any security
registered on a national securities exchange or any security not so registered."'189
Thus, the Court concluded that section 10(b) applies "only [to] transactions in
securities listed on domestic exchanges, and domestic transactions in other securities"19 0 and suggested that all other cases constitute improper extraterritorial
applications of the statute. In other words, unless there was a domestic securities
transaction, the case constitutes a forbidden extraterritorial application of the statute. The site of the fraud is irrelevant to determining whether a claim is territorial
or extraterritorial in nature." [end of quote]
Jim Bell's comments continue:
One issue that needs to be settled, I believe, is: Which Circuit's precedents would be applicable to Julian Assange's case? The American judicial system is based on territorial appeals courts, called "Circuit"s. There are twelve (12) Circuits, numbered "First" through "Eleventh", and the "D.C. Circuit", for the District of Columbia. (There is also a "Federal Circuit" which deals with Patent and other cases, not relevant here.) Generally, when crimes are tried, they occur in the territory of at least one specific Circuit. The District Court in question generally applies the precedents of that Circuit.
No part of the alleged crime by Assange appears to have occurred in any specific American Circuit. In some instances, American law specifies that if a crime is not committed within any American territory, it should be tried in the Circuit in which the defendant 'is first brought', or in the District of Columbia. To allow the Federal government the freedom to decide which Circuit's precedent's should apply is a clear example of "forum-shopping", a term which you may be familiar. Forum shopping
Forum shopping
Examples include the attraction of foreign litigants to the United States due to its expansive acceptance of per...
"It is a “longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” EEOC v. Arabian American Oil Co. , 499 U. S. 244, 248 (1991) (Aramco) (quoting Foley Bros., Inc. v. Filardo , 336 U. S. 281, 285 (1949) ). This principle represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit upon Congress’s power to legislate, see Blackmer v. United States , 284 U. S. 421, 437 (1932) . It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters. Smith v. United States , 507 U. S. 197 , n. 5 (1993). Thus, “unless there is the affirmative intention of the Congress clearly expressed” to give a statute extraterritorial effect, “we must presume it is primarily concerned with domestic conditions.” Aramco , supra , at 248 (internal quotation marks omitted). The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law, see Sale v. Haitian Centers Council, Inc. , 509 U. S. 155, 173–174 (1993) . When a statute gives no clear indication of an extraterritorial application, it has none."
BLACKMER v. UNITED STATES (two cases).
Sandra Jean SMITH, Petitioner v. UNITED STATES.
Chris SALE, Acting Commissioner, Immigration and Naturalization Service,...
[end of quote. Emphasis by bolding and italics, added.]
While I do not know how British courts work, I think this Morrison precedent should preclude having any criminal charges made against Julian Assange, except for those which explicitly contain language from the American Congress that extraterritoriality is intended by them.
The following material was published on the Cypherpunks Email list.
On Thursday, September 17, 2020, 03:27:05 PM PDT, Hernâni Marques <hernani@vecirex.net> wrote:
>For 10 years now the USA has been chasing journalist and Wikileaks
founder Julian Assange. In doing so, they are not shy in violating the
rule of law and human rights.
[end of quote from previous message on Cypherpunks email list.]
Jim Bell's comment about American Limitations period angle to get Assange released.
I've spent about 15,000 hours in a US Federal prison law library, learning MANY kinds of Federal law. (Most 'jailhouse lawyers' just learn criminal law and appeals law.) I learned contract law, tort law, libel law, civil rights law (42 USC 1983, and Bivens Actions), patent law, anti-trust law, My biggest project was a lawsuit I wrote 2002-2003. James Dalton Bell v. District Courts of Tacoma and Seattle. James Dalton Bell, et al v. United States, et al Which, when printed out, spanned 192 pages.
James Dalton Bell, et al v. United States, et al
Most people know about 'limitations periods', more commonly known as "statute of limitations". Beyond that time, a Federal crime generally cannot be prosecuted in a Federal court, although there are exceptions. https://fas.org/sgp/crs/misc/RL31253.pdf Most US Federal felonies have a limitations period of 5 years, a very few have a limitations period of 8 years. (A few, directly involving a criminal death have no limitation on prosecution time.) Assange's alleged crimes seem to be claimed to have occurred around 2009 or 2010, and do not involve any alleged deaths. So, unless the limitations period is considered 'tolled', it should be impossible to prosecute Assange in an American Federal Court. And, that being so, it should be impossible to obtain extradition to the United States, either.
However, under American law, the limitations period is generally 'tolled' (the 'clock' is stopped) under a few circumstances. One of those is when a defendant is considered a "fugitive". As is stated in https://fas.org/sgp/crs/misc/RL31253.pdf on pages 10-11:
"Fugitives"
" A provision exempting fugitives accompanied passage of the first federal statute of limitations.77
The language has changed little since,78 but its meaning remains a topic of debate.79 Most circuits,
taking their lead from Streep v. United States,
80 hold that the government must establish that the
accused acted with an intent to avoid prosecution.81 Yet two have held that mere absence from the
jurisdiction is sufficient.82 Even in the more demanding circuits, however, flight is thought to
have occurred when the accused conceals himself within the jurisdiction;83 remains outside the
jurisdiction after becoming aware of the possibility of prosecution;84 flees before an investigation
begins;85 departs after an investigation has begun but before charges are filed;86 absconds to avoid prosecution on another matter;87 or flees to avoid civil or administrative justice rather than
criminal justice.88 " [end of quote]
Since Assange clearly did not commit any US Federal crime while he was physically present within the United States (indeed, he may never have been in the United States at all, or at least during any period relevant to this case), it is clear that he did not "flee" from the United States to avoid prosecution. Indeed, he did not "flee" at all. To this, a Federal prosecutor might respond that nevertheless, Assange was 'outside the jurisdiction' of the United States court system, at least for the "most circuits" . The exceptions listed in the paragraph above do not appear to apply, because the alleged crime occurred outside the U.S.
Superficially, such a prosecutor would want to invoke the "mere absence" policy of a few circuits. Of course, since the alleged crimes did not occur within ANY of those American circuit-court regions, even that is questionable. See Note 82, which cites circuit cases from the 8th Circuit. And the D.C. Circuit: McGowen v. United States, 105 F.2d 791, 792 (D.C. Cir.
1939) McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939) From McGowen, citing the Supreme Court:
McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939)
McGowen v. United States, 105 F.2d 791 (D.C. Cir. 1939) case opinion from the US Court of Appeals for the Distri...
"To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction, and is found within the territory of another." The Supreme Court first used that language with regard to the extradition law,[2] but afterwards expressly applied it to the statute here involved.[3] Accordingly appellant, when he left the District after committing forgery, was a "person fleeing from justice," regardless of his motive in leaving." [end of quote from McGowen]
First, Assange was not "within a state committed [...] a crime", in this case the reference to "state" would include the United States of America. Nor did Assange "[leave] its jurisdiction", since he was not within the United States of America, at all. Assange did not "[leave] the District after committing [a Federal crime".
If it is assume that Assange was 'within the jurisdiction' of a U.S. Federal court while nevertheless in U.K., Assange didn't subsequently leave the jurisdiction of a U.S. Federal Court: If the Federal Court asserts that it has jurisdiction in any location in the world regarding such a crime.
"Streep declared that it “unnecessary, for the purposes of the present case, to undertake to give an exhaustive
definition of these words [fleeing from justice]; for it is quite clear that any person who takes himself out of the
jurisdiction, with the intention of avoiding being brought to justice for a particular offense, can have no benefit of the
limitation, at least when prosecuted for that offense in a court of the United States,” 160 U.S. at 133. In context, it
might be thought unclear whether the Court meant flight with intent was required or merely sufficient." [end of quote from Note 82]
"In order to constitute "fleeing from justice" within the meaning of section 1045 of the Revised Statutes, it is not necessary that there should be an intent to avoid the justice of the United States, but it is sufficient that there is an intent to avoid the justice of the state having jurisdiction over the same territory and the same act." [end of quote]
Assange is not alleged to have fled the jurisdiction of any American state. He is also not alleged to have fled the jurisdiction of the Federal court system.
But there is a further reason to reject the possibility of Assange's prosecution. There is a question: Was Assange actually IN the "jurisdiction of the American Federal Court system while he allegedly committed the acts claimed against him? After all, if we assume that American Federal law is to be applied extraterritorially in this case, then it must be that Assange was "in the jurisdiction" of the Federal Court system despite the fact that he was physically present within the U.K. during that time. And in that case, Assange must continue to be considered to be "in the jurisdiction" of the U.S. Federal Court system during the 5 years after the events alleged in the Indictment occurred, for the purposes of tolling the limitations period. Thus, there is no tolling of the limitations clock, which must have run out in about 2015, and certainly long before today, in 2020.
To assert otherwise, the American prosecutors must take the mutually-inconsistent positions that:
1. Assange was 'within the jurisdiction of American Federal criminal law' at the time the alleged crimes were committed. YET
2. Assange was 'NOT within the jurisdiction of American Federal criminal law' at the times subsequent to the time the alleged crimes were committed.
I have previously pointed out the following material, which asserts that it is well-established by authority as high as the United States Supreme Court:
"In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise."
Even while in the Ecuadorian embassy building, Assange would have been as much 'within the jurisdiction of the United States Federal court system' there, as he presumably was while he was within the United Kingdom.
"In a speech at Princeton University, Justice Michael Kirby discussed judicial reluctance to enforce assertions of extraterritorial jurisdiction[1] and in so doing, observed that: ‘the natural question is asked: Why my court? Why not theirs?’[2]The question points to the crossroads at which international law and domestic law meet: extraterritoriality. Assertions of extraterritorial jurisdiction are becoming increasingly frequent in the 21st century. Many states claim authority to project law beyond their own territorial borders[3] and, as Alejandro Chehtman observes: ‘extraterritoriality is deeply entrenched in the modern practice of legal punishment’.[4] The extent to which states can assert extraterritorial criminal jurisdiction is a pivotal issue, which sits at the ‘very heart of public international law’.[5]"
End of partial quote
Note: I haven't attempted to send a copy of the material I wrote, below, to Julian Assange or any attorney representing him. If any of you are in closer contact than I, I request that this material be sent to them.
Jim Bell
On Monday, April 29, 2019, 5:30:53 PM PDT, jim bell <jdb10987@yahoo.com> wrote:
15(B) to intentionally access a computer, without authorization and exceeding authorized access, to obtain information from a department and agency of the United States in furtherance of a criminal act in violation of the laws of the United States, that is, a violation of Title 18, United States Code, Sections 641, 793(c), and 793(e). (In violation of Title 18, United States Code, Sections 371, 1030(a)(l), 1030(a)(2), 1030(c)(2)(B)(ii).)
[end of partial quote]
There is a principle of American law, upheld by the Supreme Court, that a Federal law is only supposed to be considered of "extraterritorial" application (applies outside the boundaries of United States territory) if the Congress specifically intended that application, and was signified by including such language within the law itself.https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction
×
"In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise."
"The Supreme Court threw out the lawsuit after invoking the presumption against extraterritoriality. That canon of statutory interpretation instructs judges to assume “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”[8] In applying the presumption in RJR Nabisco, however, a majority of four Justices[9] rejected multiple indications that Congress intended RICO’s private right of action to extend abroad[10] while raising the bar on what Congress must do to make its extraterritorial expectations clear.[11]" [end of quote]
"THE RULE OF DUAL CRIMINALITY: Even if extradition is sought only under the computer intrusion indictment, it will still need to meet the test of dual criminality, found in Article 2, which provides that "An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States." Although computer hacking is no doubt also a crime in the U.K., there is a further wrinkle of territoriality, because Assange's alleged offense was committed outside the United States. Another section of Article 2 provides:
If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances. If the laws in the Requested State do not provide for the punishment of such conduct committed outside of its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met."
Unlike the U.S., however, Britain apparently takes a strict view of territorial jurisdiction. According to The New York Times, Britain has already denied a U.S. extradition request for computer intrusion, on the grounds that the offense was committed on British soil and would therefore have to be tried in the U.K.