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This paper was given at the Second International Conference on Prisoners of the War on Drugs on March 21, 1999. The Conference was presented by the Committee on Unjust Sentencing and the Colloqium Committee of the Department of Sociology of York University, Toronto, Ontario. Canada.

 

Extradition and the War on Drugs

The Case of Les and Cheryl Mooring

  Walter Noons
Introduction  

I have been asked to discuss the law of extradition as it pertains to the War on Drugs and whether it provides a remedy for persons being sought in connection with drug offenses originating in the United States. My experience in this area of law is limited to one case: The case of Les and Cheryl Mooring.

In 1995 the Moorings fled to the Netherlands to avoid being prosecuted by the United States government for the cultivation, of 257 marijuana plants in a barn behind their home in Clinton, Arkansas.

 

If convicted on all counts: manufacturing, possession with intent to deliver, use of a firearm in relation to drug trafficking, and in Les' case, a felon in possession of a firearm, their exposure under federal sentencing guidelines was 35 and 15 years, respectively. Please note that the exposure the Moorings faced was mandatory which means that they would serve their entire sentence without the possibility of probation or parole.

The 25-year difference between their exposures was because in 1989, Les was arrested and served 18 months for cultivating 40 marijuana plants so in addition to facing the fourth count, his exposure on the remaining three counts was enhanced under sentencing guideline.

The Moorings case highlights the fundamental unfairness of mandatory minimum sentences, which results in this kind of punishment for non-violent drug offenses. And raises the question whether evidence of this fundamental unfairness can be used to defeat a request for extradition when the requested state is signatory to a self-executing treaty which prohibits the infliction of inhuman and degrading punishment.

Although opposing extradition where there is a high likelihood of inhuman or degrading treatment in the requesting state is not new, describing mandatory minimums under federal sentencing as such is.

Before the request for the extradition of the Moorings was allowed, their exposure was reduced to 10 and 5 years, respectively. How this occurred provides the basis for this discussion

Amsterdam 1994: About this Site Columns Dialog Drug War Talk External Links Media Projects Research Voices

My involvement in this case begins with my first visit to Amsterdam in November 1994.

I had been invited to spend a week there by a friend of mine who enticed me to join him with the promise that it was "just like Charles Street in '68". Charles Street in '68 was the high water mark of personal freedom, non-conformity and individual expression in Boston, not to mention the availability of drugs. At the time I was a second year law student with just enough time between quarters to make the trip.

Soon after I arrived it became apparent that I had changed considerably in the nearly thirty years since those salad days. I realized that I couldn't get used to the idea that at any moment I wasn't going to feel the heavy hand of a police officer on my shoulder and be led away to the hoosegow. I realized that I had become a person uncomfortable with liberty: an insight, which I found highly disconcerting.

This initial experience in Amsterdam caused me to conclude that Amsterdam was not like Charles Street in '68. Amsterdam was what Charles Street '94 should be like and wasn't. What it might have become if we Americans hadn't somehow lost our way on the road between then and now. At the time I didn't know how to get back on track, but I knew that the answer lay in my getting back to Amsterdam as soon as possible.

Amsterdam 1996:

By January of 1996 I arranged to become an exchange student at the University of Amsterdam law program.

My experience in the law up till that time had been as a disability rights advocate in Boston. I hoped that while in the Netherlands I would be able to secure an internship where I could see how services to the disabled were administered in the Netherlands.

Unfortunately, I found that those opportunities were few and far between and those that existed required a commitment of at least a year. And as I was only there for three months, I could not be placed. I became resigned to the idea that an opportunity to work in the law was not forthcoming and decided just enjoy myself.

On January 19th I attended a dinner party where I met an American student who, after learning I was a law student looking for something to do, suggested I introduce myself to the people at the Drugs Peace House. He told me that and American activist named, Dion Markgraaff had organized a group called Green Prisoners Release. Green Prisoners Release was established to assist two Americans resist extradition back to the United States. The two Americans were Les and Cheryl Mooring.

On January 23rd I went to the Drugs Peace House and introduced myself to Dion and expressed my interest in learning more about the Moorings' case. He invited me to attend their weekly meeting that evening and to stop by early and meet Adriaan Bronkhorst and his brother Franz who operated the Drugs Peace House. The Drugs Peace House was a "stichting" formed by the Bronkhorst brothers to address issues stemming from drug use and abuse.

Over a communal dinner I was given some general information about the Moorings' case. That they had been living in The Hague for 18 months before being picked up by the Dutch police and where now in prison awaiting a hearing to determine if they would be extradited. What got my attention was learning what punishment they faced if extradited.

During the meeting I told the group that I would be willing to do some research into the law of extradition to see if there were any arguments, which might be helpful to their cause. Adriaan asked me if I would like to go with him the next day to the woman's prison in Utrecht to meet with Cheryl Mooring.

Cheryl Mooring:

My first thoughts upon meeting Cheryl Mooring were, "What is this woman doing here? This woman looks like 'Tootsie': same hair, same body type, same voice, even the same glasses! This must be some mistake!" Cheryl Mooring looked about as threatening as a basket of warm rolls. In meeting Cheryl I saw for the first time the face of a victim of the War on Drugs, or as I had recently understood a "Green Prisoner".

I learned that Cheryl was a dental assistant who had married a man who smoked marijuana for both medical and recreational reasons who had taken to growing his own in the barn behind their house. Les smoked marijuana to alleviate pain from a knee injury.

Cheryl had never used marijuana, but there she was an international fugitive being held in a foreign prison awaiting extradition to the United States where if was found guilty she would spend the next fifteen years of her life in a federal prison. Faced with such an obvious injustice I lost whatever hesitation I may have previously had in becoming involved and resolved to do everything I could to ensure her release

During what proved to be our only meeting Cheryl gave me a four-page handwritten document titled, "Circumstances of the Arrest and Flight of Les and Cheryl Mooring" which described the facts of their case.

Cheryl's Affidavit:

Cheryl described how on February 2, 1994 their home and property were searched by the county sheriff, his deputies, and DEA agents, who seized property and papers. And how, upon discovering two legally owned and registered .22 caliber pistols in a basket on top of their refrigerator became convinced that they were the most dangerous pair of desperados since Bonnie and Clyde.

Although no arrests were made that day, Cheryl states that the officers "tried very hard" to convince Les to become a snitch with promises that they would not arrest her and they would reduce their charges against him.

Three days later upon advice of counsel Les and Cheryl turned themselves in to the county sheriff. Cheryl was released on $1,000 bond and Les was released several days later on $2,500 bond. Before being released, Les was again approached by the sheriff who pressured him to snitch.

The following Monday the Moorings went to court to face the charges brought against them by the state. Both were charged with manufacturing, possession with intent to deliver, and possession of a firearm in the commission of a felony. Les' was also charged with being "habitual criminal" because of his 1989 cultivation conviction. They made several appearances in state court until they were informed in May of 1994 that the federal government was going to assume jurisdiction over their case

Their attorney advised them to plead guilty to state charges before being apprehended by federal agents. But the state refused to accept their plea, dropped the charges against them and allowed the DEA to re-arrested them. They were released on their own recognizance with orders to report to probation weekly and to undergo urine testing once a month.

If they had been convicted under Arkansas law Les' exposure was 8 years and Cheryl would've served a term of probation. Under the federal guidelines Les' exposure was 35 years and Cheryl's was 15 in a federal penitentiary. It was then that Les and Cheryl Mooring decided that their only hope was to flee to the Netherlands.

Once in the Netherlands the Moorings remained in touch with their probation officer in the hopes of negotiating a deal, which would allow them to plead guilty to the state charges. It was through those phone calls that their location was identified and on November 16, 1996, Les and Cheryl Mooring were picked up the Dutch authorities and there began their battle to resist their extradition to the U.S.

For 18 months Les and Cheryl lived successfully in The Hague. Cheryl did babysitting and housekeeping chores and Les worked as a gardener. During this period they made friends who sympathized with their decision to become fugitives.

It was this collection of friends who secured the pro bono representation of A.M.M. Orie, a Dutch Attorney from the firm of Wladimiroff and Spong. I asked Cheryl that when she spoke with Mr. Orie to let him know that I would need a copy of their file. I asked her to make Les aware of my involvement and for him to tell Mr. Orie that my involvement was as legal advisor to Green Prisoners Release.

Initial Research:

Taking full advantage of my library and Internet access at the University, I spent the next few days researching the law of extradition. By reviewing hornbooks and model treaties I began to understand the conditions when, if present, will require, allow, or prohibit extradition.

Although extradition can always be refused, it will not be if a treaty exists between the two parties and the conditions of the treaty are met. I discovered that an extradition treaty between the Kingdom of the Netherlands and the United States of America was in place. I read through the treaty to determine if all conditions had been met and to determine if there was a basis to argue that extradition was not required or prohibited.

Conditions for Extradition:

Double Criminality

The first condition for extradition is that the person is being sought for an extraditable offence. An extraditable offense is one punishable under the laws of both states by imprisonment of at least one year. This is also known as the requirement of "double criminality".

I consulted the Dutch criminal code to learn that despite the commonly held belief that marijuana is legal in the Netherlands it is not. Although a national policy of tolerance towards soft drugs exists, possession of marijuana is a felony punishable for one year in prison.

And although the Dutch criminal code does not view possession, manufacturing, or intent as separate crimes, nor does it enhance sentencing when a firearm is present, the requirement of double criminality is met if one of the charges is an extraditable offence.

Even though possession of marijuana is an extraditable offense, the result in the Moorings case was absurd. Had they been apprehended in the Netherlands for a grow operation comparable with what they had in the States, the most severe result would have been the confiscation of their plants, the imposition of a fine, and a period of community service.

It was this disparity between de facto and de jure that underscored the troubling injustice inherent in the request for their extradition. And which stoked the fires of protest when their case became public

Political Offense

The second condition is that, extradition is not allowed if it is found that the offense is a political offense, or if there is reason to believe that the intention is to punish on account of his race, national origin, sex, or political opinion.

Although that argument was never presented in the Moorings' case I would not dismiss making that argument in a case with a different fact pattern, such as growing for religious purposes, or to supply an organization such as a buyers club.

Death Penalty

Extradition is also not allowed if the person would face the death penalty. As this is not yet the case in the United States this argument against extradition could not be made in the Moorings' case. However, the idea that a state can refuse extradition when the punishment to be inflicted is severe made me question whether there was any way that evidence of the severity of the sentences facing the Moorings, if convicted, in America could be argued to defeat extradition.

European Convention

In considering this question, I recalled the Soering case where a national of the federal republic of Germany could not be extradited to Virginia because he might face the degrading prospect of a long wait on death row. Extradition was not granted in that case because the degradation of his wait was a violation of Article 3 of the European Convention of Human Rights and Fundamental Freedoms . This begged the question whether the Netherlands was a signatory of the European Convention and what effect this may have on the Moorings case in light of Soering.

Netherlands Constitution

I went to European Convention to see if the Netherlands was a signatory state. They were. I next read through the Constitution of the Netherlands , to determine the effect of their being a signatory to the Convention.

Articles 93 and 94 of the Constitution oblige the courts to review all domestic legislation including the Constitution and Acts of Parliament in light of self-executing provisions of treaties and of binding resolutions of international organisations to which the Netherlands is a party.

Acts of Parliament shall not be applied if they are at variance with self-executing treaty provisions. Two such treaties are the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights.

What this means is that as a signatory to a self-executing treaty, the terms of the European Convention will be applied by the courts with priority over all domestic legislation. This applies to an extradition tribunal who are obliged to review a decision to extradite to determine if it is at variance with the Convention.

The question then became, was the extradition of Les and Cheryl Mooring at variance with European Convention?

Humanitarian Considerations

Other arguments also available were: If the person whose extradition is requested is a national of the requested state; if a prosecution is pending for the same offense in that state; or if extradition would be incompatible with the humanitarian considerations of age, health or other personal circumstances.

In researching all of the defences available to the Moorings it could be argued that extraditing Les, then 45, to serve 35 years imprisonment without the possibility of parole was incompatible with the humanitarian considerations of age and health. This argument although not made at the hearing was highly effective in influencing public opinion.

Procedural Grounds

In addition to substantive reasons for refusing extradition, extradition may be refused on procedural grounds.

A request for extradition must be made by the requesting state in writing and transmitted along with supporting documents through diplomatic channels directly between the ministries of justice.

It shall include an accurate description of the person(s) sought, the text of the relevant law creating the offense, a statement of the penalty, a copy of the arrest warrant, an affidavit describing the acts constituting the alleged offence.

Once having reviewed the applicable law the next step was to apply it to the facts of the Moorings' case.

Request for Extradition:

The formal request for Les and Cheryl Mooring's extradition included the February 1, 1994 application of Larry T. Carver of the DEA for the search warrant to search the Moorings home and outbuildings.

Agent Carver's affidavit documented his role in the Mooring case beginning with his being contacted by Van Buren County deputy sheriff Johnny Sowell about the possible location of a grow operation on the Mooring's property because "Mooring was well known to the sheriff's office to be involved with marijuana growing."

Carver used a DEA plane to photograph the Mooring's residence including the barn and greenhouse. Carver next subpoenaed the Moorings electric bills, revealing an increase in usage since January 1995.

On February 1, 1995, the day before the search, Carver and Sowell searched the Mooring's residence and outbuildings. They used a "thermal imager" to determine if the outbuildings had a heat search. Carver admits in his affidavit that he "looked into the windows of the green house and observed house plants." He attempted to look through the barn windows but states that they were covered. He states that he could hear the sound of light ballast coming from the bar. Although not relevant to extradition per se, consider the legality of the "pre-warrant search" of the Moorings' residence, which was the basis for issuing the warrant.

The Search

Based on his affidavit, Carver was given a warrant to search the Moorings residence and outbuildings for marijuana, grow equipment, records, monies, customer lists and weapons. The search that took place on February 2, 1995 and yielded 257 marijuana plants, 6 grow lamps, and two .22 caliber handguns. The guns were not found with the grow operation, but in the house on top of the refrigerator. Also not found were records, monies, or customer lists or other evidence that might have indicated that the Mooring's were selling marijuana.

Criminal Complaint

There is nothing in the extradition request that accounts for the three months from their initial search and arrest under state law to when the federal government chose to prosecute.

Instead the request included a May 10, 1995 criminal complaint sworn to by Agent Carver stating that Les and Cheryl Mooring did knowingly and feloniously possess with intent to distribute marijuana, a schedule I controlled substance in violation of 21 USC 841(a)(1).

Grand Jury Indictment

On the same date a federal Grand Jury indicted the Mooring on the three counts: manufacturing, possession with the intent to distribute, and the use of a firearm in relation to a crime of drug trafficking. Les was indicted on the count of being a felon in possession of a firearm.

Arrest Warrant

The date of their arraignment was June 2, 1995. By that time Les and Cheryl were already in the Netherlands. A warrant was issued for their arrest to show cause why they failed to appear. It was this deficiency in the Arrest Warrant, which provided Mr. Orie with his first argument against extradition. The basis of this argument is found in the first condition for extradition: is it an extraditable offence?

Theories to Defeat Extradition:

Procedural Argument

Although the Moorings would have been formally charged with an extraditable offences listed in indictment had they appeared at their hearing, their failure to appear prevented their being formally charged. Under the federal rules of criminal procedure a warrant could only be issued for their failure to appear. Failure to appear does not meet the test of double criminality because it is not punishable by one year in prison.

Although this argument is technically sound, it was not expected to defeat the request for extradition because it was expected that the extradition tribunal would make the necessary leap to connect the Mooring's failure to appear with the underlying criminal charges

Substantive Argument

However in U.S. Attorney Kevin T. Alexander's December 8, 1995 affidavit in support of extradition he provided the proof that to extradite the Moorings would subject them to inhuman and degrading punishment as prohibited under the European Convention of Human Rights and Fundamental Freedoms.

As required by the extradition treaty, the request for extradition must include a statement of the law creating the offense and of the penalty to be imposed. Contained within his affidavit Attorney Alexander cited the offense and exposure facing the Moorings:

1. For manufacturing in violation of 21 US 841(a)(1), Les would serve 10 years and Cheryl would serve 5.
2. For possession with intent to distribute in violation of 21 USC 841(a)(1) Les would serve 10 years and Cheryl would serves 5.
3. For the use of a firearm in relation to a charge of drug trafficking in violation of 8 USC 9249(c) both Les and Cheryl would serve 5 years.
4. For Les being a felon in possession of a firearm in violation of 18 USC 922(g)(1) Les would serve10 years.

Because the charges against the Moorings are drug offences governed by the federal sentencing guidelines all sentences are served in their entirety without the possibility of probation, parole, or time served. If convicted of all charges Les Mooring would serve 35 years and Cheryl would serve 15.

Recommendations:

Based upon my research I reported to Green Prisoners Release the following recommendation:

1.   That although under law, possession of marijuana is an extraditable offence, in practice not treated as such, and therefore it should not be viewed as an extraditable offence because it does not meet the test of double criminality;
2.   Based upon the age and health of Les Moorings extradition is incompatible with humanitarian considerations;
3.   The charges against the Moorings are political and nature;
4.   The charge of failure to appear as described in the arrest warrant is not an extraditable offence;
5.   If convicted, the punishment the Moorings' face is inhuman and degrading and in violation of Article 3 of the European Convention for Human Rights and Fundamental Freedoms. Because the Netherlands is a signatory to the European Convention, which is a self-executing treaty, the constitution of the Netherlands requires that all courts reach determinations consistent with its terms.

 

Green Prisoner Strategy

Before an action can be brought before the European Court of Human Rights, an individual must first exhaust his domestic remedies, including extradition. Once acquiring personal jurisdiction over the Moorings even if the European Court decides that their extradition is prohibited as a matter of law, the United States will not return the Moorings to the Netherlands even in the face of a dissenting world opinion. As demonstrated in United States Vs. Alvarez-Machein, 112 S.Ct. 2188 (1992).

If extradition is allowed at the initial hearing, the Mooring's will have the right appeal before the High Court, before the matter goes before the Minister of Justice. The final decision to extradite remains with the Minister of Justice, whose decision will be governed by the principles of comity.

However, if the Minister decides to allow extradition, the question of whether that decision is constitutional in light of the European Convention can provide the basis of a civil suit.

Although there is no special court in the Netherlands, which deals with constitutional questions, Articles 93 and 94 of the Constitution oblige the courts to review all domestic legislation in light of self-executing provisions of treaties to which the Netherlands is a party.

One such treaty is the European Convention for the Protection of Human Rights and Fundamental Freedoms, which during the last decade this has come to serve as a bill of rights, allowing Dutch courts to set aside acts of Parliament.

Therefore a strategy to keep the case within the Netherlands is to bring a civil suit against the Minister for rendering a decision contrary to both Dutch and International law.

If extradited, the Moorings defence will rest on constitutional grounds. Specifically, whether the probable cause used to justify the issuance of the search warrant was obtained illegally.

Also, it may be in Cheryl's best interest to have her case "severed" from Les' as she has no past record and the charges against her seem to be spurious at best.

Jamieson Case:

While I was conducting my research other members of Green Prisoners Release were contacting organizations throughout the world in their attempts to raise support for Les and Cheryl. A key piece of information, which surfaced, was information about a case where a Canadian court refused the extradition of a cocaine dealer because of the severity of sentencing in the United States for drug offences.

I reviewed the case of the United States of America v. Jamieson, Quebec Court of Appeal, 93 C.C.C. 3d 265 (1994) the facts of which were: Mr. Jamieson was charged in the U.S. with possession and trafficking in 10 ounces of cocaine. After being indicted and released on bail Mr. Jamieson fled to the Canadian Province of Quebec. He was subsequently arrested pursuant to a request for extradition from the U.S. to face possession and intent to distribute charges. Subsequent to an extradition hearing in which extradition was recommended, the Canadian Minister of Justice decided that extradition was appropriate. Mr. Jamieson then filed a habeas corpus action, which was denied. Mr. Jamieson appealed the denial which placed the matter before the Quebec Court of Appeal.

The Court held that although the Minister's decision to extradite was procedurally accurate, extradition violated Mr. Jamieson's substantive rights under section 7 of the Canadian Charter of Rights and Freedoms to "not be deprived of liberty except in accordance with the principles of fundamental justice."

The Quebec Court of Appeal concluded that a 20 year mandatory sentence with no chance of parole for possession and intent to distribute 10 ounces of cocaine would be considered, by the "average informed Canadian," to be unconstitutional in violation of sections 7 and 12 of the Canadian Charter of Rights and Freedoms. And that to surrender Mr. Jamieson to face such a punishment is "so grossly disproportionate as to outrage the public conscience."

In accordance with that decision Mr. Jamieson was not extradited to the United States. Although this case cannot be used as a precedent, the fact that it exists is highly persuasive.

Meeting A.M.M. Orie:

Having developed a plausible theory by which the Moorings may resist extradition, it became incumbent upon me in my role as counsel to Green Prisoners Release to convince Mr. Orie that he should argue that extradition should be refused because it is a violation of international and constitutional law.

I arranged to meet with him at his office in The Hague. I was well aware that my not being Dutch, or for that matter, yet a lawyer, necessitated my proceeding delicately if I wanted him to see things my way.

When I made my appointment to meet with him he committed to giving me one half hour to discuss the case with the caveat that if I didn't convince him within the first five minutes that I understood Dutch law the meeting would be terminated.

Knowing that that this was the only chance I would have to make the case my strategy was to compose a short brief in which I presented the procedural argument as the best first argument and asked him to consider raising the additional arguments dependent upon international law.

During our meeting he read through my brief as I arranged my collection of treaties, and conventions, in a semi-circle before me on the great wood table in his conference room. I'll never forget his looking up upon completion and saying, "I can use this."

Having met his test we spoke for well past five minutes whereupon I agreed to provide him with additional evidence about mandatory minimums. He told me the greatest challenge would be to get the tribunal to believe that if extradited, Les and Cheryl Mooring would actually serve the full sentence their crimes required.

He also told me that he would not represent the Moorings in any future civil proceedings but that he would see the case up through the decision of the Minister and if necessary secure counsel to represent them in any future civil action.

Preparing for Hearing: Comity, Diplomacy and Politics:

Having gotten Mr. Orie on board the next step was to gather pubic support against Les and Cheryl's extradition.

It was February 16, 1995 Les & Cheryl's case was scheduled for March 15th. Although it was difficult for them to have to wait it gave us time to prepare.

At a planning meeting of Green Prisoners we identified and undertook tasks, which needed to be completed prior to March 15th. They were:

1
  Ongoing research to identify cases that demonstrate how repressive the U.S. law regarding marijuana is.
2
  To distribute information on the Mooring's case to insure proper attention, to include: press releases to newspapers and television stations
3
  To organise events to raise funds to help pay the costs of assisting Les & Cheryl.
4
  To communicate with Les & Cheryl to keep up their morale, keep them informed, and to make their needs known to all.
5
  To establish a bank account in the name of the Green Prisoners Release to oversee the disbursal of monies raised and an accountability of assets and costs.
6
  To acquire transportation to and from the hearing
7
  To co-ordinate the activities of the Amsterdam and The Hague groups.
8
  To enlist the support of the coffee houses to generate "grass root" support for Les & Cheryl by distributing petitions, to post information, to place donation cans. Also, coffee shop owners should be encouraged to provided "gifts" to be used as raffle prizes.
9
  To implement a letter writing campaign requesting Parliament to reduce the sentence "on the books" for growing marijuana to prevent future requests for extradition.
10
  To contact influential Dutch citizens and business and inform them of the Mooring case and to solicit their support.

If the decision to extradite the Moorings were to fall to the Minister of Justice, to assist the Minister, an integral part of the overall strategy in the Moorings case was the ongoing outreach programs of the Green Prisoner Release to mobilize people to speak out against extradition.

Therefore, any success, which could be hoped for in the Moorings' case, was dependent upon a combination of legal strategy and political activism.

3/15/99 Hearing:

The Mooring's hearing took place on schedule and lasted a little more than an hour. The 1st Justice read a brief history of the facts, including portions of both Agent Carver and Kevin T. Alexander's affidavits, and the charges against the Mooring's. Mr. Orie spoke for about 40 minutes:

He listed the charges and the sentences they would receive under the guidelines. He spoke about how harsh the guidelines were, how they left no discretion for judges, and that they would be carried out.

He referred to the Jamieson case in which the Quebec Court of Appeals refused to extradite an indicted cocaine trafficker. The tribunal resisted allowing this case to be read into the record. However, Mr. Orie insisted that the constitution of the Netherlands requires review of any Act of Parliament in light of a self executing treaty, and that the Quebec case went to the issue of whether U.S. sentencing guidelines are inhuman and degrading treatment within the meaning of the European Convention.

The Judges allowed the evidence, and the prosecution didn't object.

Mr. Orie next raised the procedural argument that, Les and Cheryl Mooring are not wanted for an extraditable offence.

In closing Mr. Orie referred to the sentencing guidelines, Cheryl's obvious innocence, and the fact that Les was in need of a knee operation, which he will not receive in prison in the United States.

The Prosecution position was simple. Extradition was allowable. Forward it to the Minister of Justice, Winnie Sorgdrager for final decision. She did not challenge any of Mr. Orie's evidence.

Next, The Moorings addressed the tribunal Les asked to be treaty as humans. He said that they were not criminals and that if convicted, their lives together and apart are over. Cheryl said she was innocent and that she didn't think that it was right to sentence someone for so long who could be of good use to society

After brief adjournment the judges returned and stated that they would make their decision on March 28, 1996. Mr. Orie felt, and I agreed that because the justices did not agree with the argument the extradition was not an allowable because the charging document did not identify an extraditable offence, it was indicative of their future finding against the Mooring's.

It was never expected that the tribunal would conclude that extradition was not allowable because it violated both Dutch and International law. Hopes of that decision lay with the Minister or against him in the event of a civil suit.

Decision:

As expected, the tribunal decided on March 28, 1996 that extradition was allowable under the terms of the treaty. As I was scheduled to return to the United States on April 1, 1996 my direct involvement with the case ended then.

However for the next 10 months Green Prisoners Release enlisted the support of the Dutch population who provided intense and sustained support for the Moorings to remain the Netherlands. This support manifested itself through petitions, demonstrations, editorial comment of the newspapers, even a long running Dutch television program "Twee Vaandag" satirized their case and the foolishness of their extradition for an offence regarded by the Dutch as trivial. Approximately 40 well-known Dutch celebrities signed a petition against the extradition on humanitarian grounds. The extradition was also debated in the Dutch parliament. And to their credit the Dutch made sure that Les got his knee operation.

High Court Appeal/Minister's Decision:

The effect of these protest were heard because on October 29, 1996, Mr. Alexander sent a letter to Ms. Judi Friedman of the Office of International Affairs in Washington, D.C. where he re-calculated the Moorings exposure under the U.S. Sentencing Guidelines.

In his letter he combined counts II and I and dropped count III in response to the Supreme Court's holding in Bailey vs. United States, 516 U.S. 137, 116 S.Ct. 501 (1995). In an unconventional ruling the High Court accepted Mr. Alexander's letter as the charging document in the Mooring case as required under the extradition treaty.

It was then that Les and Cheryl's exposure was officially reduced 10 and 5 years, respectively. On November 14, 1996 Mr. Orie sent a letter to Les and Cheryl informing them that this change in their exposure was fatal to their bid to resist extradition. He informed her that Ms. Ties Prakken of the Amsterdam law firm of Van Den Biessen, Prakken, Bohler would be contacting them about their bringing a civil suit against the Minister of Justice.

As expected, Minister of Justice Winnie Sorgdrager consented to turn Les & Cheryl over to U.S. marshals on the condition that Les would not be sentenced to more than ten years

Civil Case:

On December 10, 1997 Attorney Prakken brought the civil case that the Minister Sorgdrager had no authority to extradite the Moorings in violation of the constitution.

At issue was the trustworthiness of the prosecution's claim that the Moorings, once extradited, would face less exposure than they did on the original four-count indictment in the request for extradition.

The Rule of Specialty in extradition matters states that extradited persons, once returned, can only be charged with the offences that they were extradited for. This rule prohibits the requesting state from prosecuting the extradited individual for any charge other than the charges listed in the charging document in the extradition request. It therefore limits the extradition request to the documents required by treaty, specifically with respect to the charging document

It could be argued therefore, that the Rule of Specialty required that the Moorings be charged with all four counts in the original extradition request and that the only way to reduce their exposure would be to initiate an new request for extradition.

It could further be argued that the terms of the treaty itself prohibit the inclusion of any secondary documents especially ones having not traveled through a diplomatic channel directly between the ministries of justice.

However, on December 19th 1996 the civil court held the Minister's decision did not violate Dutch and international because the exposure, which the Moorings were facing, was consistent with penalties for similar offences in other industrialized states.

To ensure that the Moorings were not indicted for the other "dismissed" charges in the request for extradition, representatives of both the public and private sector monitored the Moorings' cases in the United States through to conviction to be assured that no violations occurred.

Extradition:

On January 9, 1997 Les and Cheryl Mooring were extradited to the United States

Back in the States:

Though correspondence I was able to acquire counsel in the United States for Les and Cheryl. Michael Cutler of Boston represented Cheryl who pled guilty to a lessor charge of Misprision of a Felony. She was released after a brief period of Probation.

Les was represented by John Wesley Hall of Little Rock. Les pled guilty to the charge of cultivation in return for the acceptance of Cheryl's plea of misprision. Les was sentenced to 5 years with an additional 5 years of "enhanced" sentencing because of his prior conviction.

Now:

At the present time, Cheryl is leading her life quietly without Les. Unfortunately, another casualty of the drug war was their marriage.

Les is currently challenging the enhancement of his sentence based upon a procedural oversight of not having acquiring his signed consent to enhancement before his plea was accepted. I am assisting Les with this matter. If successful, he could be out in nine months.

Conclusion:

So does the law of extradition provide remedies to persons charged with drug offences originating in the United States? My answer is, 10 years is too long for Les Mooring to be behind bars for having cultivated 2757 marijuana plants, and despite her eventual release, the hell that Cheryl Mooring lived through, and the pain of her failed marriage, is too great a price to pay for being married to someone who cultivated 257 marijuana plants, but 35 and 15 years, respectively, in a federal prison is worse.

Editor's Note

As the War on Drugs heats up in the United States and jurisdictions outside the United States turn to harm reduction measures, requests by the US Department of Justice for extradition of potential Drug War prisoners will face increasing opposition , and possibly incline Justice Department officials to "cut a deal." Not mentioned in Walter Noons' paper but current in The Netherlands at the time was a rumor that to get her way Janet Reno conferred with Ms Sorgdrager, the Dutch Minister of Justice, offering to drop certain charges against the Moorings so as to reduce penalties and render extradition more palatable to the Dutch government.

Walter Noons is an attorney who intends to specialize in international extradition law. He was involved in the case of Les and Cheryl Mooring, refugees in Amsterdam charged with marijuana cultivation in Arkansas and subjects of a warrant for extradition. Walter writes that in international law extradition may be refused in certain circumstances: "Because the Netherlands holds a monist view of the supremacy of international over national law (unlike the US), their being a signator state of the European Convention of Human Right, a self-executing treaty, [meant that] there existed arguments which made the extradition of the Moorings illegal." To the suggestion that the conference might adopt a resolution calling for a ban on the future extradition of people like the Moorings, Walter replies that the idea is not radical. "If the state (such as the Netherlands) holds a monist view of international law and is a signator of a self-executing treaty (such as the European Convention), which prohibits degrading and inhumane treatment, then extradition becomes a violation not only of international law but of the law of the signator state (the Netherlands)." Walter discusses some complexities of extradition in his paper. (Excerpt, Conference Program Notes.)

 

 

 

 

 

 

 

 

 

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