QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
|- and -
|GOVERNMENT OF THE UNITED STATES OF AMERICA
Miss Rosemary Davidson (instructed by Crown Prosecution Service) for the Respondent
Hearing date : 16 January 2009
Crown Copyright ©
Lord Justice Maurice Kay :
"(1) This section applies in relation to the conduct of a person if -
(a)he is accused in a category 2 territory of the commission of an offence constituted by the conduct …
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied –
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law)."
"4. …[the appellant] did not file his federal income tax returns for tax years 1998-2001 in a timely fashion, nor did he pay his federal income taxes for those years – taxes which totalled more than $49,000.
5. While investigating this case, IRS agents discovered that between 1998 and 2001, Mauro made false representations on several IRS forms. Specifically, IRS agents discovered (a) that Mauro filed three applications for an extension of time within which to file his federal income tax returns, and falsely claimed on those forms that he did not owe any taxes for tax years 1998, 1999 and 2000; (b) Mauro twice provided American Airlines with an IRS form (IRS Form W-4) captioned, 'Employee's Withholding Allowance Certificate', and falsely claimed on those forms that he was exempt from withholding because he had no tax liability in 1999 and 2001; and (c) that Mauro signed an IRS form, captioned 'Notice of Election/Change of Election', and falsely claimed on that form that he was not a US citizen and had no 'effectively connected' gross income from within the United States.
6. In December 2003, IRS agents notified Mauro that he was the subject of a criminal investigation. Shortly thereafter, Mauro filed federal income tax returns for the tax years 1998-2000. On those returns, Mauro reported (1) that he had earned $179.768 in 1998, $182,141 in 1999 and $184,678, and (2) that he owed more than $100,000 in federal income taxes. To date, Mauro has not filed federal income tax returns for tax year 2001, nor has he paid his federal income taxes for tax years 1998-2001."
"Count 1 of the indictment charges [Robert Mauro] with Failure to File, in violation of Title USC 7203. The government is required to prove that Mr Mauro wilfully failed to file the tax return in question. According to at least one federal circuit court, this requires proof that the defendant acted voluntarily and with the deliberate intent to violate the law.
Counts 2 through 4 of the indictment charge Mr Mauro with Tax Evasion, in violation of 26 USC 7201. The government is required to prove a wilful attempt to defeat and evade payment. This requirement protects the average citizen from criminal prosecution for innocent mistakes in filing tax forms. In Cheek v US, 111 S. Ct. 604 (1991), the Supreme Court held that 'wilfulness' requires the voluntary, intentional violation of a known legal duty as a condition precedent to criminal liability.
Do we accept any of the assertions made by Mr Mauro? No.
Although the prosecutor does not need to prove that Mr Mauro engaged in 'dishonesty' in order to convict him of the offences with which he is charged, Mr Mauro did, as the extradition request reflects, engage in 'dishonesty' by making false representations on several IRS forms. Specifically, he (1) filed three applications for an extension of time within which to file his federal income tax returns, and falsely claimed on those forms that he did not owe any taxes for tax years 1998, 1999 and 2000; (2) twice provided American Airlines with an IRS form (IRS Form W-4) captioned 'Employee's Withholding Allowance Certificate' and falsely claimed on those forms that he was exempt from withholding because he had no tax liability in 1998 and 2000, and did not expect to have any tax liability in 1999 and 2001; and (3) signed an IRS form captioned, 'Notice of Election/Change of Election' and falsely claimed on that form that he was not a US citizen and had no 'effectively connected' gross income from within the United States."
Norris v Government of the USA
"… it is immaterial whether dishonesty was a necessary constituent of the offence in the United States constituted by the conduct there, if the conduct alleged included acts or omissions capable of amounting to dishonesty here." (My emphasis).
"… I would reject the submission that the requesting authority has to identify or specify in terms the relevant mens rea of the English offence. In my view, it is sufficient if it can be inferred by the court from the conduct that is spelled out in the warrant and further information."
The conduct as described in the extradition request documents
The further information contained in the letter of 8 May 2008
"It is anticipated that the US authorities may be able to assist the Court by responding to the proposed admissions."
"I do not accept any of the assertions made by Mr Mauro."
"… the judge must first be satisfied that the warrant which he is dealing with is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
"… the conduct that should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence."
"If the Requested State requires additional information to enable a decision to be taken on the request for extradition, the Requesting State shall respond to the request within such time as the Requested State requires."
"A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated."
Mr Justice Wyn Williams: