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News 21 Dec. 2016
The Higher Regional Court of Frankfurt issued a decision on December 8 denying a U.S. request to extradite Mr. Roger Keller on tax fraud and conspiracy charges pending in the Southern District of New York. Curtis Partner Jacques Semmelman and counsel Gabriel Hertzberg served as Mr. Keller’s extradition counsel, along with Grub Brugger of Frankfurt.
Mr. Keller, formerly with Wegelin Bank in Switzerland, had been indicted on charges that he engaged in tax fraud and conspiracy by opening undeclared accounts for numerous U.S. customers of the bank. Wegelin Bank had pleaded guilty in 2013, based upon these and related allegations, to criminal charges in the Southern District and had shut its doors after 275 years of operation. Mr. Keller was detained in Germany, while travelling, pending extradition to the United States.
The German court initially authorized extradition on certain counts, but denied extradition on other counts, on the grounds that these other counts did not satisfy the doctrine of dual criminality, pursuant to which extradition may only be granted for conduct that is a crime in both countries. Mr. Keller nevertheless faced extradition to the United States.
Mr. Keller’s criminal defense attorney in the Southern District case, Thomas Green of Sidley Austin LLP, brought Mr. Semmelman in as extradition counsel.
The initial decision implicated the doctrine of specialty, pursuant to which an extradited defendant may only be prosecuted for charges authorized by the extraditing country. The issue thus became whether the United States would abide by the doctrine of specialty and limit prosecution to the specific charges authorized by the German court.
In a 2015 New York Law Journal article, Messrs. Semmelman and Hertzberg had argued that the decision in United States v. Suarez (791 F.3d 363 (2d Cir. 2015)), in which the Second Circuit had refused to enforce the doctrine of specialty on the rationale that a defendant lacks prudential standing to enforce the doctrine, was deeply flawed in several respects. Suarez was presented to the German court as proof that the United States could not be expected to abide by the doctrine of specialty with respect to Mr. Keller, and that extradition should therefore be denied altogether.
In its December 8 decision, the Higher Regional Court cited repeatedly to Suarez, vacated the earlier order, denied extradition outright, and allowed Mr. Keller to return to Switzerland.