Samuel Bankman-Fried v The Honourable Frederick Audley Mitchell
| Jurisdiction | Bahamas |
| Court | Supreme Court (Bahamas) |
| Judge | Klein, J. |
| Judgment Date | 09 June 2023 |
| Docket Number | Claim No. PUB/jrv/00015 of 2023 |
IN THE MATTER OF Sections 7, 12 and 17 of the Extradition Act, Chapter 96, Statute Laws of the Bahamas.
AND IN THE MATTER of Article 14 of the Extradition Treaty between the United States of America and the Government of the Commonwealth of the Bahamas dated 9 th March, 1990.
The Hon. Mr. Justice Loren Klein
Claim No. PUB/jrv/00015 of 2023
In the Commonwealth of the Bahamas
In the Supreme Court
Public Law Division
Judicial review — Application for leave pursuant to Part 54.3 (1) of the Civil Procedure Rules 2022 (“CPR 2022”) — Test for the grant of leave — Sufficient interest — Arguable grounds with reasonable prospect of success — Discretionary Bars — Alternative remedy — Abuse of Process — Interim Relief — Injunction — Disclosure
Extradition Act 1994 — Consent of Minister to “other offence” pursuant to s. 7 — Extradition Treaty between the Bahamas and the United States of America, 1994 — Extradition Principles — Double Criminality — Rule of Specialty — Whether claimant entitled to invoke specialty rights in Extradition Treaty — Alternative remedy — Abuse of Process
Mrs. Krystal Rolle KC, with Ms. Kendrea Demeritte for the Claimant
Mrs. Kayla Green-Smith for the Defendants
This is an application for leave pursuant to Part 54.3(1) of the Supreme Court Civil Procedure Rules 2022 (“CPR 2022”) by the claimant to commence judicial review proceedings against the defendants arising out of his extradition to the United States.
It is far removed from the routine fare of applications for leave which normally trouble the courts, however, as these proceedings are marked by several striking features. For one, it involves the pending high-profile trial of Samuel Bankman-Fried (a.k.a. “SBF”) in the Southern District of New York (“SDNY”) on a raft of charges arising out of the collapse of the global cryptocurrency exchange FTX, for which he was extradited from The Bahamas (with his consent) in December 2022. Further, it raises novel and difficult questions about the extradition process and in particular the interpretation of the so-called ‘specialty’ principle in the scheme of the Extradition Act 1994 (“the Extradition Act”) and the Extradition Treaty between the Government of the United States of America and the Government of the Commonwealth of the Bahamas, signed 9 March 1990 and which entered into effect on 22 September 1994 (“the Extradition Treaty”).
These issues arise because the United States (“the requesting state”), after reviewing additional documents and interviewing witnesses following his extradition, has returned two superseding indictments against SBF to try him for additional offences which were not covered under the original indictment. In this regard, they have sought the post-surrender consent of The Bahamas (“the requested state”), as is required under the Extradition Treaty and Act, to try him on the new offences.
The claimant asserts that he has a right to be heard before The Bahamas can consent to his prosecution on the additional offences for which he was not extradited. He has therefore launched these proceedings to challenge an email decision of 6 June 2023 from the second defendant, the effect of which he claims is to assert that the process by which that consent is given is a matter between states inter se in their role as sovereigns, and deny him a right to make representations (although the defendants through counsel dispute that this is the intended meaning).
While the determination of those issues remains for the substantive judicial review hearing (if leave is granted), the question for this court on the application before it is whether it should exercise its discretion to grant leave and any of the interim remedies sought to preserve the claimant's rights pending the substantive hearing.
As indicated, the claimant is SBF, the famous (and perhaps now infamous) founder of FTX, who is currently in the custody of the US facing charges before the US District Court of SDNY, stemming from the collapse of the cryptocurrency companies he founded and controlled. It is alleged that the operation of these entities involved the defrauding of FTX customers, financial institutions and lenders, as well the perpetration of a number of other crimes.
Up to the time of his extradition, and approximately 2 years before that, SBF was a resident of The Bahamas, where he conducted operations involving FTX and other companies. On the 21 December 2022 he was surrendered to the US without formal extradition proceedings, having agreed in writing (by affidavit sworn by him on 20 December 2022) to the simplified extradition proceedings provided for at section 17 of the Extradition Act.
His extradition was sought pursuant to an indictment (“the Original indictment”) ( United States of America v. Samuel Bankman Fried, a/k/a/ “SBF”, Case Number S5 22 Cr. 673) which contained eight counts: Count 1 (conspiracy to commit wire fraud on FTX customers); Count 2 (wire fraud); Count 3 (conspiracy to commit wire fraud on lenders); Count 4 (wire fraud on lenders); Count 5 (conspiracy to commit commodities fraud); Count 6 (conspiracy to commit securities fraud); Count 7 (conspiracy to commit money laundering); Count 8 (conspiracy to defraud the US and violate campaign finance laws). The warrant of surrender issued in support of the extradition process attached a schedule of all but one of the Counts on which SBF had been provisionally arrested (Count 8, which charged a conspiracy to violate the campaign finance laws of the United States of America).
On 20 December 2022, SBF appeared before a stipendiary and circuit magistrate pursuant to his election of the simplified extradition process where he and his lawyers formally confirmed his consent to that procedure, as required under s. 17 of the Act, and at the end of which the magistrate duly committed him for extradition. During that process, specific reference was made to article 14 of the Treaty, which embodies the ‘specialty’ principle, and the contents of the indictment pursuant to which he gave his consent to be extradited.
Following his extradition, the US obtained a series of superseding indictments, respectively on the 22 February 2023 (the “S3 Superseding Indictment) and 28 March 2023 (the “S5 Superseding Indictment”) (together referred to as the “Superseding Indictment”), which charged him with the following new offences, with the consequential renumbering of the charges: Count Four (commodities fraud); Count Nine (bank fraud conspiracy); Count Ten (unlicensed money transmitting conspiracy); Count 13 (conspiracy under the Foreign Corrupt Practices Act) (“the FCPA”).
Based on documents which have recently been disclosed to the claimant's attorneys (of which more will be said later), the US requested by Diplomatic Note on 22 May 2023 the consent of the defendants (“The Bahamas”) for the trial of SBF on the additional charges, described as a request for “a waiver of the Rule of Specialty”, which was accompanied by an affidavit setting out the new charges and the basis for them.
It is also important to note, as part of the background, that the preliminary stages of the trial of SBF on the extradition charges are already proceeding in the US District Court for the SDNY. In this regard, on 8 May 2023 the claimant filed pretrial motions to have a majority of the counts dismissed on various grounds, and in particular Counts 9-10 and 12-13 dismissed on the grounds that they violate the specialty rule.
On 29 May 2023 the Government of the United States in its brief filed in the US District court of the SDNY stated that a formal application had been made to The Bahamas to request consent pursuant to Article 14 (1) (b) of the Treaty in respect of the additional charges in the Superseding Indictment that did not form part of the charges on which SBF was extradited.
On 1 June 2023, the claimant's local counsel wrote the second defendant by email seeking an undertaking from him that the defendants would not consent to the prosecution of SBF on the offences that did not form the basis of the extradition request until he could make representations on why consent should not be granted. Failing obtaining such an undertaking, it was indicated that an application would be made to the Court for appropriate relief.
The second defendant replied with a terse email on 6 June 2023 in the following terms:
“Thank you for your email. As you can appreciate this matter is solely a matter between sovereign states. As such we cannot agree to you[r] request for an undertaking that The Bahamas will not consent to the United States' request to prosecute Mr. Bankman Fried for those offences without first affording you the opportunity to make legal and factual representations in this regard.”
On 7 June 2023, the claimant filed an application pursuant to Part 54.3(2) of the CPR 2022, as well as the other relevant enabling provisions of Part 54, seeking leave to apply for judicial review for the orders which are summarized below. I should add that the claims at paragraphs (i), (ii), (iii), (v) and (vii), as well as ground (i), were added by amendment, and were not included in the original application. These amendments were foreshadowed during the hearing, and I subsequently granted leave for them after receiving the draft amendments over the weekend, which I directed were to be circulated to the court and the other side. The claim (as amended) is for the following reliefs:
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(i) a declaration...
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