Crossing the Line: Case study & analisis of International Extradition

Crossing The Line: A Case Study of International Extradition Coy Pfleger and Mary Dodge University of Colorado Denver School of Public Affairs

Achieving extradition of wanted felons through international avenues is a rare occurrence. Many of the difficulties lie in complex international treaties and doctrines, which often create contradictions and conflicts within and between nations. The case of Dr. Ricardo Asch exemplifies the difficulties and intricacies of international extradition. Surprisingly, the origins of the Asch case began over 16 years ago when a California grand jury issued an indictment based on the evidence presented by the prosecutors accusing him of conspiracy to commit tax evasion and mail fraud. In the United States, the grand jury has considerable legal powers. The role of the grand jury is controversial because of the secretive nature of the proceedings and the power prosecutors hold over the presentation of evidence. The grand jury decision, like many aspects of this case, seemed to reflect the inability of the legal system to provide fair treatment. Few people realized the exorbitant professional, personal, and societal costs that would span three countries and disrupt the life of a prominent doctor who remained steadfast in his innocence.

Ricardo Hector Asch was born and raised in Argentina. After completing his medical degree in Buenos Aires in 1971, he traveled to the United States to complete postdoctoral studies in Endocrinology in Augusta, Georgia in 1975. In 1977, he received a fellowship in Reproductive Medicine from the University of Texas, where he was later named Director of the Division of Reproductive Endocrinology and Professor of the Department of Obstetrics and Gynecology. In 1984, Dr. Asch and Dr. Jose Balmaceda introduced the Gamete Intrafallopian Tube Transfer (GIFT) procedure as an alternative to In Vitro Fertilization (IVF) and received great praise and professional acknowledgement worldwide. Their successful careers brought both doctors to the University of California Irvine in 1986. In 1995, a scandal emerged that impacted the field of reproductive medicine nationally and internationally.

At the UCI Center for Reproductive Health, a private clinic under the control and supervision of the University of California, Irvine, there were reports and rumors of possible unethical and fraudulent behavior. Other stories emerged of a consent form for donation of eggs being tampered with by clinic employees. The allegations made by three whistle-blowers, internal auditors, university officials, and popular media created the perfect storm for the reproductive scandal, which, among other accusations, alleged Asch and his partners were harvesting eggs from one woman and placing them inside another woman without written consent.

Allegations also involved the use of a non-FDA approved fertility drug hMG. The drug commonly used in South America to stimulate follicles on the ovaries was prescribed for several patients. While at the time it was an unapproved drug in the United States, today the drug is regularly prescribed to women undergoing fertility treatment. At the time of the alleged incident, the medications were used by many practitioners to accommodate patients from other parts of the world and to augment the shortage of FDA approved drugs. Obviously, the safety of the drug was never in question and no adverse reactions were ever reported by patients. In fact, one FDA official when asked about hMG, commented that the use of most legal drugs fall under the purview of physicians and the agency rarely became involved in such matters.

Allegations and internal audits initially showed no concerns over business at the Center for Reproductive Health. High ranking university officials acknowledged only minor business glitches. In 1995, whistle-blowers filed several internal complaints and the subsequent investigations by auditors, investigative panels, and reporters created a maelstrom, which touched the lives of patients, families, and medical professionals.

The university in a feeble attempt to quiet the raging storm negotiated settlements with the three whistle-blowers and paid them almost $1 million between March and May of 1995 (Dodge & Geis, 2003). The settlements included “gag” clauses which expressly forbid any of the whistle-blowers to release information about the terms of the agreement and details related to the fertility clinic. Many commentators believed the settlement represented “hush money,” though one whistle-blower continued to secretly proffer information, some from private medical records, to a local newspaper reporter. University administrators ultimately release the women from the gag agreement after news of the payout became public.

As the media frenzy grew, the lives of Ricardo Asch and Jose Balmaceda were uprooted. The intrusive nature of the press and its influence over public opinion resulted in labeling the two doctors as guilty prior to any proceedings or real evidence. Asch and Balmaceda were faced with difficult choices in what appeared to be an unending nightmare. After consulting with his lawyers, Asch left the country in the fall of 1995, and ultimately relocated to Mexico. Asch, informed by his lawyers, had committed no crime by leaving the United States because no legal accusations had come to light at the time of his departure. Balmaceda left the United States and returned to his native country of Chile. Dr. Sergio Stone, also a partner in the clinic, chose to stay in the U.S. because of his strongly family and community ties. Presumed innocent, he believed the justice system would provide a fair outcome.

Stone was indicted on April 25, 1996, accused of mail fraud and conspiracy to evade income tax payments. Though Stone would be found guilty of the mail fraud charge, he was acquitted of income tax evasion, in which the three doctors were accused of as a conspiracy. Obviously, this accusation was false, though the indictment against the “co-conspirators” was never changed. The guilty verdict was not without controversy, however. Several jurors afterwards complained that they had been restricted by the judge’s jury instructions and almost forced to fall into line. One panel member mentioned afterwards that another juror told her she would be thrown in jail if she failed to follow the judge’s orders to apply the law as he had instructed them to—an inaccurate statement at best (Dodge & Geis, 2003). Stone was ultimately sentenced to one year of home probation, three years of regular probation, and a monetary fine (USA v. Asch et al, 1998).

Although Asch and Balmaceda were out of the country, the U.S. Attorney’s office included them in the indictment. Each doctor was added to the indictment after Stone’s case began, with Balmaceda being placed on the indictment June 27, 1996 and Asch in June 1996, and again on September and October 1997 (Docket, USA v. Asch et al, 1998). The charges were the same: mail fraud and tax evasion. The mail fraud charges were related to the allegations that the doctors were signing insurance forms claiming an assistant surgeon was in the room during the procedure. Records would show, however, that this typically was not the case and insurance billing fell under the supervision of the university and its staff. Ironically, not one insurance company came forward to accuse the doctors of any type of fraud.

On August 6, 2004, Dr. Asch was arrested in Argentina on an extradition order from the United States (Berthelsen & Delson, 2006). Almost four years later, the Argentinean Court dismissed the extradition order and found Asch had committed no wrongdoing according to the country’s legal statutes. The Court, in its refusal to allow extradition, also noted the statute of limitations and a lack of proof of the alleged wrongdoing based on information submitted by the U.S. prosecutors. In short, Dr. Asch was exonerated of any charges by the Argentinean Courts. The court decision provided automatic immunity from any further attempts at extradition. Additionally, the court relied on the notion of non bis in idem, a provision similar to double jeopardy in which a defendant cannot be tried twice for the same crime, which applied in Asch’s case.

In late 2010, Asch, who returned to his life in Mexico City after he was exonerated, was arrested yet again on an extradition order from the United States for the identical reasons he was cleared and freed from in Argentina. Apparently, the U.S. had issued a request for extradition from Mexico at the same time as they did from Argentina in 2004. Curiously, in May 2009, they had sent an official note through the U.S. Embassy to the Mexican Foreign Ministry withdrawing the request. Instead of trying to get the extradition order expedited by filing the proper paperwork immediately, the U.S. Attorney’s office in the Central District of California waited until the 59th day of the 60th day deadline. Asch was released from incarceration after serving three nightmarish months in prison. Though Mexican officials stated why they released him, the U.S. Attorney’s office claimed to have no idea why the extradition order ultimately was turned down.

Analysis of the Extradition Attempts

Why the U.S. Attorney’s office continues to pursue Asch after he was cleared of charges by the Argentinean Court, a democratic sovereign nation, is perplexing. The extradition treaty between Argentina and the United States and subsequent decisions indicates Asch’s struggle for freedom is complete.

Article 2 of the Extradition Treaty between the Argentine Republic and the United States of America (here forth referred to as TIAS 12866) provides enumeration for extraditable offenses. Article 2(1) states: “An offense shall be an extraditable offense if it is punishable under the laws in both parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty” (TIAS 12866). Thomas Pickering, the United States Secretary of State for Political Affairs who submitted the treaty for ratification, believed that this would be a “dual criminality” clause, whereas any future offenses that become punishable under either country’s laws would be included (Submittal Letter, TIAS 12866). Specific crimes were purposely not listed and the clause negated the need of an exclusive list of offenses to be agreed upon during the negotiation process.

Asch and his lawyers argued that the crime of mail fraud was nonexistent, stating “(the crime of mail fraud) has no specific correlation within our criminal system.” The Argentinean judges’ ruling for the motion to dismiss reads: “[I rule] to grant the motion for dismissal on the grounds of inexistence of a crime.” The final court decision negates any future extradition attempts and declares: “as a consequence, the case is dismissed with respect thereto.”

On November 3, 2010, Asch was violently abducted by non-uniform men carrying firearms in the lobby of his apartment building in Mexico City without any order of arrest. At the time, Asch and his wife had no idea whether or not he was being arrested or kidnapped. This brutal incident created emotional scars unlikely to be healed or forgotten. Asch was jailed without a valid U.S. arrest warrant. On November 30, 2010, Assistant U.S. Attorney Douglas McCormick filed for an ex parte application for an order re-issuing the arrest warrant for Asch after his office discovered the warrant of arrest was invalid since 1998 (USA v. Asch, 2010). A U.S. judge allowed the re-issuance of the arrest warrant nuno pro tunc, providing for a retroactive legal action from the original issue on April 8, 1999. In other words, in 2004, Asch also was detained in Argentina without a valid arrest warrant. As a consequence of the legal finagling Asch was forced to spend over four years in court processes at great costs—personally and professionally. Not only were the legal fees exorbitant, he and his family struggled under undue emotional stress.

The Extradition Treaty between the United States of America and the United Mexican States (TIAS 12897) agrees to a 60 day deadline to file extradition papers after a provisional arrest (Article 11(3)). The U.S. Attorney’s office waited until the last possible day to file the formal paperwork. The action appeared to be a vindictive attempt to keep Asch in a Mexican jail.

The process of extradition in Mexico relies on a judge who first gives a legal opinion and then the case is transferred to the Foreign Ministry Office where the judicial department makes the final decision. A top Mexican official stated they gave U.S. officials notice in December that Asch would be released, barring some "new elements or new evidence" that would justify his extradition. The official explained: “We alerted the U.S. Embassy and Department of Justice what the likely outcome would be" (Christensen, 2011). Nonetheless, the paperwork was filed and Mexico began the process of determining whether or not Asch should be extradited. Meanwhile, Asch was released on bail after three months in prison.

The judge in charge of Asch’s case ruled one month later. The ruling on March 14, 2011 by the Foreign Ministry of Mexico, which denied extradition, relied on Article 6 non bis in idem (TIAS 12897) and the exoneration in Argentina. The decision is final and cannot be overturned.

Exploring the Treaty Violations and Unethical Acts

The International Covenant on Civil and Political Rights (ICCPR) is a treaty adopted by the United Nations General Assembly that requires its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. Mexico, Argentina, and the United States signed and ratified the ICCPR in their respective countries well before Asch was arrested in Argentina. Article 14(7) of the ICCPR states: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

Consequently, it appears the U.S. Attorney’s attempt to extradite Dr. Asch a second time was in direct violation of Article 14(7) of the ICCPR. The United States Constitution pronounces that “all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Law of any State to the contrary notwithstanding” (U.S. Const. art.VI, §2 , cl.2) Therefore, the ICCPR has legal standing in the dismissal of the charges against Asch.

Such blatant disregard for treaties is not tied exclusively to Asch’s case. The case of United States v. Alvarez-Machain (1992) exemplifies the issue. Humberto Álvarez-Machaín, a Mexican physician, was suspected in a murder of an American DEA agent in Mexico. Álvarez-Machaín, a Mexican citizen, was kidnapped and brought to the United States. Much to the dismay of the Mexican Government, the United States Supreme Court allowed Álvarez-Machaín to be prosecuted, citing the Ker-Frisbie Doctrine.

The Ker-Frisbie Doctrine is comprised from two cases; Ker v. Illinois (1886) and Frisbie v. Collins (1952). Ker was kidnapped from Peru and brought back to the United States by a messenger who had a valid warrant. Instead of going through legal avenues, the messenger chose to forcibly abduct him. Ker challenged that the lack of due process nullified his arrest and charges, yet the Supreme Court held “such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court." In the holding the Supreme Court also noted there was no language in the 1870 Treaty of Extradition between the U.S. and Peru that would allow the defendant to be entitled to asylum in Peru (Ker v. Illinois, 1886).

Frisbie, though not an international case, was also a state authorized kidnapping. Frisbie was in Chicago, Illinois when Michigan authorities came and abducted him. He was taken back to Michigan where he was tried and convicted. Challenging that due process was not followed, Frisbie appealed to the Supreme Court, which applied the decision from Ker v. Illinois (1886) and upheld the conviction. The Supreme Court held: “There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will” (Frisbie v. Collins, 1952).

The application of the Ker-Frisbie Doctrine to the United States. Alvarez-Machain (1992) case makes little sense. United States law enforcement officers lack legal authority to arrest parties in other countries. Article 9(1) of the ICCPR holds: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” The extradition treaty the United States signed with Mexico does not explicitly address kidnapping individuals, however, the purpose and sole reason a treaty exists is because both sides recognize they have no legal authority in each other’s country. By applying the Ker-Frisbie Doctrine to Álvarez-Machaín’s case, the Supreme Court undermined the treaty with Mexico.

Conclusion

The U.S. Attorney District Office responsible for the prosecution of Álvarez-Machaín in 1991 also spearheaded the extradition of Asch. Though 19 years apart and vastly different allegations, it seems the same attitude of disrespect towards international treaties continues. While it is easy to comprehend the public emotions evoked by Asch’s alleged egg scandal, unethical acts are beyond the boundaries of the law. As of 2012, neither legal nor physical evidence of egg misuse has emerged in any court of law in the United States. Genetic DNA testing has never been conducted. The repeated attempts by prosecutors to extradite Asch for the same crimes that amounted to a fine and probation for his partner demonstrate the vengeful and all encompassing power of the U.S. Attorney’s office. Even more alarming is the willingness of the prosecutors to break international treaties and doctrines in the pursuit of so-called “justice.” In this case, it appears that treaties negotiated and ratified in good faith are susceptible to the unrestrained power held by U.S. Attorneys. Clearly, prosecutors, at least in the Asch case, have acted with indifference to the law and ignored the basic fundamental rights outlined in the International Law treaties and International Human Rights Accords.

References

Berthelsen, C., & DeUon, J. (2006, February 18). Ex-UCI Fertility Specialist Fighting Extradition to U. LA Times Retrieved from:
http://articles.latimes.com/200 feb/1 /local/me-asch18.

Christensen, K. (2011, April 01). D for With Ties to Fertility Scandal Won't be Extradited by Mexico. LA Times. Retrieved from
http://articles.latimes.corn/20112 pr/01/local/ -me-0401-asch-20110401.

Dodge, M., & Geis, G. (2003). Stealing dreams: A fertility clinic scandal. Boston: Northeastern University Press.

Extradition Treaty, United States-Argentina, June 10, 1997.
(TIAS 12866). 18
USC Sec. 3181.

Extradition Treaty, United States-Mexico, November 13, 1997.
(TIAS 12897). 18
USC Sec. 3181.

Frisbie v. Collins, 342 U.S. 519 (1952). International Covenant on Civil and Political Rights (ICCPR).
G.A. res. 2200A
(XXI), 21 U.N.

GAOR Supp. (No. 16) at 52, U.N. Doc. A16316 (1966), 999 U.N.T.S. 171, enteredinto force Mar. 23, 1976

Ker v. Illinois, 119 U.S. 436 (1886).

USA v. Asch et al, 8:96 CR 00055 AHS 3. (1998) Central District of California.

USA v. Asch, 8:96 CR 00055 AHS 304. (2010) Central District of California.

U.S. Const. art.VI, §2 , c1.2.

United States v. Alvarez-Machain, 504 U.S. 655 (1992).