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GARY BOTTING

604-817-7428

garybotting@shaw.ca

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Is the United States setting a trap for Huawei’s Meng Wanzhou?

published December 10, 2020

In appearing to entertain a proposal for her to return to China in exchange for an admission of wrongdoing, the United States could well be setting a trap for Huawei executive Meng Wanzhou.

I’ve been the lawyer on several cases where I was instructed by clients to make a deal with the U.S. prosecutor. American officials usually won’t entertain such a notion without the promise of a guilty plea, and without the person physically being in the United States.

The trouble is, if Meng admits to wrongdoing, she would have a criminal record and any number of countries (including Canada) could then move to exclude her by their immigration rules.

I speak from painful experience.

One of my clients, a U.S. citizen, was the CFO in a U.S.-registered corporation run by her Canadian husband. Their two young sons were born in Canada. The Americans wanted to extradite the couple for the alleged reckless abandonment of a building in St. Louis.

The husband fought his extradition for years, eventually going to the Supreme Court of Canada. When that esteemed body turned him down and he was returned to the United States, the U.S. Department of Justice (DOJ) asked the Canadian immigration service to arrest my client and turn her over to U.S. marshals to face trial.

Taken to a border crossing against her will

My client declined to provide a Canadian immigration officer with her travel documents and refused to divulge the whereabouts of her two young sons. Nonetheless, she was arrested and taken to a border crossing against her will.

I applied to the B.C. Supreme Court for a habeas corpus order, requesting the court to order production of the prisoner before she could be turned over to U.S. authorities in what would later be recognized as “extraordinary rendition.” Rather than issuing the order, the court adjourned the matter to the afternoon, allowing the immigration official to hand her over to U.S. marshals on a U.S.-bound ferry. The judge then declared that he had no jurisdiction since she was on a U.S.-registered vessel – American territory – even though it was still in the ferry slip.

My client was held in custody in the United States for weeks before being sent to St. Louis to be reunited with her children. The prosecutor told her that if she pleaded guilty, she would get “time served” and could go free to be with her little boys. So she did. However, as far as the courts were concerned this meant that her extradited husband must be guilty, as well – and he received a much more severe sentence.

In a second case, the CEO and CFO of a Canadian-registered corporation, both Canadian, were sought for extradition for an alleged telemarketing scam. I represented the male CEO; another lawyer represented the female CFO. They were not married at the time of the alleged offences and extradition proceedings, although, thrown together by circumstances, they had three kids together, and did eventually marry.

Concern for the children

They were naturally concerned about what would happen to their children should they both be extradited. The CFO’s lawyer negotiated a deal not unlike that proposed for Meng: one day in prison (the day she appeared in court). The FBI and assistant U.S. attorney drafted the statement she would have to sign that implicated both her and her common-law husband and former boss.

When she was taken before the court in Los Angeles one Friday, she pleaded “Not guilty.” All deals were off. The U.S. DOJ fêted her over the weekend, putting her up in a swank hotel and taking her to Disneyland. On Monday they tried again and this time she said “Guilty.” She was allowed to fly home to Vancouver to be with her kids that day.

Her husband fought his extradition, won an appeal, then faced another extradition hearing. Ten years after the proceedings started – 20 years after the alleged fraud – he is still in custody in Georgia, appealing his conviction for fraud in California, still insisting he is innocent. But again, because his wife pled guilty in order to be home with her children, he has had an uphill battle proving his innocence.

Tragically, even before the former CEO was finally extradited, his former CFO – now his wife and the mother of his children – died of cancer. One of the last things she did was testify at his extradition hearing, protesting she had been forced into pleading guilty and implicating him, though he was innocent. However, her U.S. “confession” weighed heavily against him at his second Vancouver extradition hearing. As a result of her death and his extradition, the three children have been left for their maternal grandparents to raise.

So much for justice.

Another of my clients was the CEO of a corporation that constructed a pipeline from eastern Europe to China for a large U.S.-based corporation. It and several of its executives were accused of corruption for allegedly bribing officials at both ends of the pipeline – a contingency for which it had budgeted as being “the cost of doing business” in those countries.

Middleman implicated

My client negotiated the contracts for most of the construction work. The firm’s executives were charged with corruption but named my client as the culprit. He travelled to Washington voluntarily to make it clear to the DOJ that he had nothing to hide: he had merely been the messenger. Nobody arrested him and he was allowed to go home to Europe.

My client and his family had been preapproved for landing as permanent residents in Canada. However, when they tried to immigrate to Canada three years ago, he was arrested at Vancouver International Airport on a provisional arrest warrant, just like Meng. Canadian immigration authorities refused him and his family entry on the basis that he was suspected of criminality.

While he was held in custody in Canada, his U.S. lawyers negotiated a deal very much like the one the U.S. is now proposing in the Meng case, contingent on his acceding to U.S. jurisdiction. He trusted the U.S. DOJ to honour its agreement and was taken to the U.S., where he put up $5-million in bail so that he could rejoin his disappointed wife and son in Europe.

Owing to circumstances beyond his control, my client missed his appearance date. For failing to appear he forfeited his bail and was sentenced to a year of federal time in a U.S. jail, even though, according to his lawyers, the DOJ had agreed in advance that he would serve just one day.

The point is, it isn’t up to the DOJ or the lawyers. The courts do what they want to do and what, in the United States, they are wont to do: pile on the time.

In the last case, the argument was made that the U.S. had jurisdiction of a U.S.-registered corporation. However, my client’s corporation, like Huawei, was not registered in the United States. My client had not set foot there before travelling to Washington to try to clear his name.

U.S. has no jurisdiction over Meng

Arguably, the U.S. had no jurisdiction over him or his corporation. Similarly, the U.S. has no jurisdiction over Meng.

It is increasingly obvious that the issuance of the indictment against Huawei from the outset was a political move designed to usurp its success in the 5G market and give U.S. corporations dominance in that burgeoning technological niche. The United States miscalculated what a mess it would create to add Meng personally to an indictment, alleging that in Hong Kong in 2013, she assured a British bank official that a Huawei subsidiary was not breaking U.S. sanctions against Iran by providing banned goods and services.

Given those stark facts, there is no way that Canada could prosecute her criminally; if it could, why hasn’t it taken the initiative to do so? And if Canada does not have jurisdiction, nor does the United States.

Ultimately, Meng’s name must be struck from the indictment. Otherwise, even if Canada’s minister of justice does the right thing and orders her discharge, the United States can go after her again and again, whenever she happens to land in a country with which the Americans have an extradition treaty.

  • (Gary Botting is author of several books on extradition, including Extradition between Canada and the United States (Brill), Canadian Extradition Law Practice (LexisNexis), and Halsbury’s Laws of Canada – Extradition (LexisNexis).)