## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 17 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE FINBAR ROSS, Petitioner-Appellant,

v. UNITED STATES MARSHAL for the Eastern District of Oklahoma, Respondent-Appellee. No. 98-7083

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. CV-98-189-B)
Neal A. Goldfarb (Thomas Earl Patton of Tighe, Patt on, Tabackman & Babbin, L.L.C., Washington, D.C.; Mark Green, Muskogee, Okl ahoma, with him on the briefs), of Tighe, Patton, Tabackman & Babbin, L.L. C., Washington, D.C., for Petitioner-Appellant. Sean Connelly (Bruce Green, United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma; Sara Criscitelly, Dep artment of Justice, Washington, D.C., on the brief), Assistant United S tates Attorney, Denver, Colorado, for Respondent-Appellee.

Before BRORBY, BARRETT and EBEL , Circuit Judges.

BRORBY , Circuit Judge.-2-

The Government of Northern Ireland, United Kingdom issued warrants for the arrest of Appellant, George Finbar Ross, for fo rty-one charged offenses stemming from Mr. Ross’ alleged involvement in a fr audulent investment scheme. The United States subsequently arrested Mr. Ross pu rsuant to an extradition treaty existing between the United States and the United K ingdom. After a magistrate judge certified his extradition, Mr. Ross filed a p etition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his extrad ition. The district court denied the petition and Mr. Ross filed this appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 2253 and we affirm.

I. Background In 1976, Mr. Ross, a then citizen of the Republic o f Ireland, established an offshore investment company in Gibraltar called Int ernational Investment Limited (“International Investment”). Mr. Ross was benefic ial owner of International Investment and ran the day-to-day operations of Int ernational Investment’s Dublin office. Over a several-year period, International Investment solicited millions of dollars from investors, primarily in Northern Ireland. International Investment purported to invest the depositors’ money in severa l funds and promised high rates of tax-free interest. However, investigators from Northern Ireland concluded International Investment actually used de positors’ funds to-3-

make unsecured loans to Mr. Ross and to related companies set up by Mr. Ross. Among other things, Mr. Ross used International Inv estment funds to build a home and purchase artwork.

An International Investment auditor first expressedconcern over International Investment’s financial viability arou nd 1980 or 1981. However, limited access to records and unprofessionally keptbooks thwarted various attempts to perform a full audit. Gibraltar bankin g officials also had little success in obtaining audited accounts from either Internati onal Investment or Mr. Ross, as required by 1982 changes to Gibraltar banking regul ations. A former International Investment employee estimated that by 1982, International Investment was using depositors’ investments to payinterest to previous investors. Liquidators would later conclude Intern ational Investment was insolvent by mid-1982.

In late October 1983, Mr. Ross moved his residence from the Republic of Ireland to the United States. Mr. Ross visited Northern Ireland in December 1983 to conduct a seminar for International Investment b rokers and depositors. At that seminar, Mr. Ross encouraged depositors to make further investments and emphasized International Investment’s financial str ength even though-4-

International Investment was in fact insolvent and had been for approximately eighteen months. In February 1984, Mr. Ross again returned to Northern Ireland and reassured a group of concerned brokers that whi le International Investment had a cash flow problem, the company’s investments were sound. International Investment went into liquidation on June 14, 1984. Although International Investment owed approximately $7,750,000 to deposit ors, liquidators were unable to realize any International Investment assets for distribution to them.

The Royal Ulster Constabulary commenced an investig ation into International Investment’s affairs in 1985, and on June 28, 1996 and February 27, 1997, Northern Ireland officials issued warrants fo r Mr. Ross’ arrest. The warrants charged Mr. Ross with fraudulent conduct o ccurring between December 1983 and March 1984. United States officials arres ted Mr. Ross on March 4, 1998, and Northern Ireland immediately requested extradition pursuant to the Extradition Treaty Between the Government of the Un ited States of America and the Government of the United Kingdom of Great Brita in and Northern Ireland, Oct. 21, 1976, U.S.-U.K., 28 U.S.T. 227 (“Extraditi on Treaty”). A magistrate certified Mr. Ross’ extradition and ordered him hel d in custody pending surrender to Northern Ireland. Mr. Ross filed a petition forwrit of habeas corpus, arguing his confinement violates the Extradition Treaty. A fter reviewing the magistrate’s-5-

findings and conclusions, the district court denied Mr. Ross’ petition.

II. Extradition The scope of review of a magistrate judge’s extradi tion order under a treaty with a foreign country is limited to “determining w hether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal construction, whether there was any evidenc e warranting the finding that there was reasonable ground to believe the accused guilty.” Peters v. Egnor , 888 F.2d 713, 716 (10th Cir. 1989) (quotation marks andcitation omitted). In this case, Mr. Ross does not contest the magistrate’s ju risdiction nor challenge the evidence of his guilt. Rather, he argues the offen ses charged are not within the treaty because: (1) the charges are time-barred un der the relevant statute of limitations, and (2) the warrants charging Mr. Ross with “false accounting” do not meet the dual criminality requirement.

1. Statute of Limitations Article V of the Extradition Treaty provides extrad ition shall not be granted if the prosecution has become time-barred according to the law of either the requesting or requested country. Extradition Treaty, 28 U.S.T. at 230. No Northern Ireland statute of limitations applies to Mr. Ross’ charges. The-6-

applicable United States law provides for a five-ye ar statute of limitations. 18 U.S.C. § 3282. The statute may be tolled, however, if the accused is a fugitive “fleeing from justice.” 18 U.S.C. § 3290.

In this case, Northern Ireland seeks extradition ba sed on charges brought approximately twelve years after Mr. Ross committed the alleged offenses – well beyond the statutory limit. However, the district court concluded the statute tolled because Mr. Ross was fleeing from justice wh en he moved to the United States in October 1983. In relevant part, the court concluded (1) in order to toll the statute, the government had to prove by a prepo nderance of the evidence that Mr. Ross had an intent to avoid prosecution or arre st, and (2) the record supported the magistrate’s finding that Mr. Ross knew he was likely to be charged with a crime when he moved to the United States and theref ore acted with the intent to avoid an anticipated prosecution. Mr. Ross argues the evidence does not support this conclusion because at the time he moved, North Ireland officials had not commenced an investigation nor charged him with any crime. Moreover, Mr. Ross argues he could not have been trying to avoid prosecution for the charges which underlie the extradition request because cond uct he is charged with occurred after he moved. We review the district co urt’s interpretation of the tolling statute de novo ; United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.),-7-

cert. denied, 501 U.S. 1207 (1991), and the court’s determinati on Mr. Ross was fleeing from justice for clear error. United States v. Greever , 134 F.3d 777, 781 (6th Cir. 1998); United States v. Marshall , 856 F.2d 896, 900-01 (7th Cir. 1988).

As a preliminary matter, we must first determine wh at constitutes “fleeing from justice” under the statute. The circuit court s are currently split on the issue. A small minority of circuits have held mere absence from the jurisdiction in which the crime was committed is enough to toll the statute. In re Assarsson , 687 F.2d 1157, 1162 (8th Cir. 1982); McGowen v. United States , 105 F.2d 791, 792 (D.C. Cir. 1939). The district court, on the otherhand, adopted the majority view, which requires the prosecution to prove the a ccused had an intent to avoid arrest or prosecution. See Greever , 134 F.3d at 780; United States v. RiveraVentura , 72 F.3d 277, 283 (2d Cir. 1995); United States v. Fonseca-Machado , 53 F.3d 1242, 1244 (11th Cir.), cert. denied, 516 U.S. 925 (1995); United States v. Marshall , 856 F.2d 896, 900 (7th Cir. 1988); United States v. Gonsalves , 675 F.2d 1050, 1052 (9th Cir.), cert. denied, 459 U.S. 837 (1982); Donnell v. United
States , 229 F.2d 560, 565 (5th Cir. 1956); Brouse v. United States , 68 F.2d 294, 295 (1st Cir. 1933). The Supreme Court has not squ arely addressed the issue. However, in considering the predecessor to 18 U.S.C . § 3290, the Court in Streep v. United States , 160 U.S. 128 (1895) implicitly recognized intent as an element1 We note this interpretation is not entirely witho ut precedent in this

circuit. In 1873, the Circuit Court of Kansas, a p redecessor to this court, came to a similar conclusion when it held fleeing from just ice meant “to leave one’s home or residence or known place of abode, with intent t o avoid detection or punishment.” United States v. O’Brian , 27 F. Cas. 212, 213 (C.C. Kan. 1873) (No. 15,908). Congress replaced the circuit courts with the current United States Courts of Appeals in 1891. See generallyErwin Chemerinsky, Federal Jurisdiction 23-25 (2d ed. 1994).

-8- of fleeing from justice, id. at 133 (“In order to constitute a fleeing from jus tice ... [i]t is sufficient that there is a flight with the intention of avoiding being prosecuted.”) Consistent with Streep , we conclude “fleeing from justice” requires the government to prove, by a preponderance of the evidence, the accused acted with the intent to avoid arrest or prosecution. 1

Having thus determined the appropriate standard of proof, we must decide whether the district court committed clear error in finding Mr. Ross had the requisite intent to flee arrest or prosecution when he moved to the United States. We believe the record supports the district court’s conclusion. By October 1983, the investigatory record indicates Mr. Ross was aware of the International Investment’s ongoing fraudulent scheme – he knew International Investment used investors’ money to make multiple unsecured loans f or his benefit and to pay interest to previous investors. Mr. Ross also like ly knew International Investment was insolvent or rapidly approaching insolvency, an d that International2We realize the district court’s opinion relies in part on conduct that

occurred afterMr. Ross moved to the United States – specifically statements made to investors in December 1983 and February 198 4. While we acknowledge the limited relevance of this conduct, we neverthel ess find sufficient pre-October 1983 evidence to support the district court’s findi ng. See Seibert v. Oklahoma , 867 F.2d 591, 597 (10th Cir. 1989) (“An appellate c ourt may affirm the judgment of a district court on any grounds that find support in the record, provided the litigants have had a fair opportunity to develop th e record.”)

-9- Investment would soon have to submit to a full audi t to maintain its Gibraltar banking license, thereby revealing the fraudulent s cheme. Based on this evidence, it was not clearly erroneous for the district courtto infer Mr. Ross’ intent to flee arrest or prosecution. 2

The fact that Northern Ireland had not yet initiate d its investigation does not change this conclusion. An accused may form th e requisite intent even though prosecution has not actually begun. See Streep , 160 U.S. at 133 (“It is sufficient that there is a flight with the intentio n of avoiding being prosecuted, whether a prosecution has or has not been actually begun.”); United States v. Ballesteros-Cordova , 586 F.2d 1321, 1323 (9th Cir. 1978) (“The statute of limitations will be tolled whenever the suspect fle es with the intent of avoiding prosecution, even if prosecution has not actually b egun at the time of the flight.”). In other words, an intent to avoid an anticipated arrest or prosecution is sufficient3 As the government correctly points out, it makes no difference that Mr.

Ross moved to the United States from the Republic of Ireland rather than Northern Ireland, the country seeking extradition. The government n eed not prove Mr. Ross had the intent to flee a particular court system or state. Streep , 160 U.S. at 134-35. It is enough that the accused has “an intent to avoid the justice of the state having criminal jurisdiction o ver the same territory and the same act.” Id. at 135.

-10- to toll the statute. 3

We likewise reject Mr. Ross’ argument that he did n ot have the intent to avoid prosecution because the charged conduct occur red after he moved. A prosecutor’s decision as to which charges to file i s a matter of discretion and involves consideration of many factors. See generally Wayte v. United States , 470 U.S. 598, 607 (1985) (listing factors which aff ect prosecutorial discretion such as strength of the case, deterrence value, and enforcement priorities); United States v. Zabawa , 39 F.3d 279, 284 (10th Cir. 1994) (recognizing pr osecutor discretion to choose which crimes of any given crim inal to prosecute). We fail to see how this decision-making process limited or res tricted Mr. Ross’ intent to flee prosecution in October 1983. More important, the r ecord indicates Mr. Ross was aware of the potential criminality of his conduct a nd its imminent discovery in October 1983. Because this evidence forms a suffic ient basis from which to infer Mr. Ross’ intent to avoid an anticipated prosecutio n, we conclude the district4Mr. Ross argues he had legitimate, business-relat ed reasons for moving

and notes he has lived openly in the United States since he moved. However, it was within the district court’s discretion to weighthis evidence. Federal Deposit Ins. Corp. v. Hamilton , 122 F.3d 854, 860 (10th Cir. 1997). Because we f ind the district court’s finding permissible in light of th e entire record, we uphold the court’s determination regarding Mr. Ross’ intent. See Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985) (“If the district cou rt's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced th at had it been sitting as the trier of fact, it would have weighed the evidence d ifferently.”)

-11- court’s determination was not clearly erroneous. 4

2. Dual Criminality Under Article III of the Extradition Treaty, an off ense must meet the dual criminality requirement in order to be extraditable . Extradition Treaty, 28 U.S.T. at 229. The doctrine of dual criminality requires the offense with which the accused is charged to be “punishable as a serious c rime in both the requesting and requested states.” Peters , 888 F.2d at 718 (quotation marks and citation omi tted). To satisfy the dual criminality requirement, the re questing and requested countries’ statutes must be substantially analogous or “punish conduct falling within the broad scope of the same generally recogn ized crime.” Id. at 719 (quotation marks and citation omitted).

The magistrate concluded the offenses listed in Mr. Ross’ extradition5 Although Mr. Ross did not specifically address th e dual criminality issue

in his habeas petition, he argues he adequately pre served the issue because his petition incorporated by reference all arguments ma de in proceedings before the magistrate. As a general rule, we will not conside r an issue not “presented to, considered [and] decided by the trial court.” Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 721 (10th Cir. 1993) (quotation marks and citation omitted). However, we retain discretion to consider issues fo r the first time on appeal based on the facts of the individual case. Lyons , 994 F.2d at 721 (quoting Singleton v. Wulff , 428 U.S. 106, 121 (1976)). Here, it is debatable whether Mr. Ross adequately raised the issue in front of the distric t court. See Lyons , 994 F.2d at 721 (“[V]ague, arguable references to [a] point in the district court proceedings do not preserve the issue on appeal.” (Quotation m arks and citation omitted).). Assuming he did not, we nevertheless exercise our d iscretion to hear the dual criminality issue because it is purely a matter of law; see Stahmann Farms, Inc. v. United States , 624 F.2d 958, 961 (10th Cir. 1980), and because i ts proper resolution is certain; see Singleton , 428 U.S. at 121.

-12- request met the dual criminality requirement. Spec ifically, the magistrate determined Mr. Ross’ alleged conduct is criminal un der the United States statutes prohibiting mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, and the Oklahoma false pretenses statute; Okla. Stat. tit. 21, §1541 .2. Mr. Ross argues the warrants charging him with “false accounting” do not meet th e duality requirement. 5 The issue of whether dual criminality is satisfied is alegal question we review de

novo . Peters , 888 F.2d at 718.

Warrants six through forty-one charge Mr. Ross withviolating § 17(1)(b) of the Theft Act (Northern Ireland) of 1969 which m akes it a crime for one to produce or make use of a misleading, false or decep tive account or other6Because we conclude duality exists between the Theft Act and the mail

and wire fraud statutes, we need not address the pa rties’ arguments regarding the Oklahoma false pretenses statute. -13- document made for accounting purposes, “with a view to gain for himself or another or with intent to cause loss to another.” Mr. Ross argues this section of the Theft Act is not substantially analogous to the federal mail and wire fraud statutes because those statutes, unlike the Theft A ct, require proof the defendant carried out a fraudulent scheme through use of the mails or wire transmissions. We disagree. The Theft Act and the mail and wire f raud statutes proscribe the same basic conduct–use of false representations to defraud or obtain property. See United States v. Sensi , 879 F.2d 888, 893 (D.C. Cir. 1989) (concluding offense underlying both the Theft Act and mail frau d statue was stealing); United States v. Herbage , 850 F.2d 1463, 1466 (11th Cir. 1988) (finding dua l criminality between Theft Act and mail fraud statute), cert. denied, 489 U.S. 1027 (1989). The element requiring use of the mails or interstat e wire transmission is merely a jurisdictional requirement which makes the underlyi ng crime federal in nature.
Sensi , 879 F.2d at 893; Herbage , 850 F.2d at 1466; Emami v. United States Dist.
Court , 834 F.2d 1444, 1450 (9th Cir. 1987). The crimina l conduct each statute proscribes remains substantially analogous, thus satisfying the dual criminality requirement. 6 Peters , 888 F.2d at 719-20.-14-

The judgment of the district court is AFFIRMED

.