Footnote
* Monkgolnavin Law Office, (Attorney at Law, State
of Hawaii, U.S.A., Federal District for the State of Hawaii) B.A. University of
Texas 1983, J.D. University of Houston 1986. 1 Ethan
Nadelmann, The Role of the United States in the International Enforcement of
Criminal Law, 31 Harvard Law Journal 37, 39 (1990) 2 Id. at
39. 3 Id. at 48. 4 US Department
of State Bureau of International Narcotics Matters, Narcotics Control
Strategy-Thailand, International Narcotics Control Strategy Report (last
modified November 13, 1995)
5 Andrew Huxley Foreword to THAI LAW: BUDDHIST LAW, ESSAYS ON
THE LEGAL HISTORY THAILAND LAOS AND BURMA, (Andrew Huxley, ed., 1996) at page 16
6 Aroonrut Wichienkeeo, Lanna Customary Law in THAI LAW:
BUDDHIST LAW, ESSAYS ON THE LEGAL HISTORY THAILAND LAOS AND BURMA, (Andrew
Huxley, ed., White Orchid Press 1996) at 31-36. 7 Andrew
Huxley, supra note 1 at 6. 8 THANIN KAIWICHAIN, LAW
REFORMATION IN THE PERIOD OF KING RAMA V 6-21 (Printing Office of the Prime
Minister 2511). 9 The “Common law” system derives its
heritage primarily from England, and relies on judicial decisions to comprise
the body of its law, rather than strictly legislative enactments. see BLACK’S
LAW DICTIONARY, 6TH ED., 276 10 Ratatamanoon Haang
Rachanajak Thai (Constitution of Thailand). 11 US
Department of State Bureau of International Narcotic Matters, supra note at 1.
12 Id at 4. 13 see e.g. United
States v. Ligenfelter, 997 F.2d 632 (9th Cir. 1993); United States v. Kimball,
975 F.2d 563 (9th Cir. 1992); United States v. Monroe, 943 F.2d 563 (9th Cir.
1991); United States v. Ogbuehi 18 F.3d 897 (9th Cir. 1994). 14
Drug Enforcement Administration Briefing Book, US Department of Justice,
Operation Tiger Trap, < briefing pubs dea www.usdoj.gov>
15 Id. 16 Associate of Khun Sa
to be extradited, Bangkok Post, April 10, 1997.
17 Article 15 allows for a simplified procedure, and
states that: “ If the person irrevocably agrees in writing to extradition
after personally being advised by the competent authority of his right to formal
extradition proceedings and the protection afforded by them, the Requested State
may grant extradition without formal extradition proceedings.” Extradition
Treaty, December 14, 1983, US-Thail., Hein’s KAV 1940, Senate Treaty Doc.
98-16, Executive Congress No. 98-29 (entered into force May 17, 1991). 18
Associate of Khun Sa to be Extradited, supra Note 15. 19
Nusara Thaitawat and Veera Prateepchaikul, Suspect in record United States drugs
seizure jumps bail, Bangkok Post, March 12, 1997
. 20 Id. 21 Id 22
A decision regretted, Bangkok Post, March 20, 1997
. 23 Id. 24 Caroline Lurie, Drug
Lord Fears For Life and Calls for extradition, Thailand Times, May 5, 1997
. 25 Id. 26 Research in
International law under Auspices of the Faculty of the Harvard Law School,
Jurisdiction with Respect to Crime, 29 AM. J. INT’L L 435 (Supp. 1935); see
also Zagaris & Rosenthal, United States Jurisdictional Considerations in
International Criminal Law, 15 CAL.W. INT’L L.J. 303, 305-310 (1985). 27
Nadelmann, supra note 1, at 41. 28 Id at 41 29
Treaty on Mutual Assistance in Criminal Matters, March 19, 1986, US-Thail.,
Hein’s No. KAV 1941, (entered into force on June 10, 1993). 30
Extradition Treaty, December 14, 1983, US-Thail., Hein’s KAV 1940, (entered
into force May 17, 1991). 31 Memorandum of Understanding
on Cooperation in the Narcotics Field, US-Thail., September 28, 1971, T.I.A.S.
7185 (entered into force September 28, 1971).
32 Id at 57 33 See Jones,
International Judicial Assistance: Procedural Chaos and a Program for Reform, 62
Yale L.J. 515, 554 (1953). 34 European Convention on
Mutual assistance in Criminal Matters, Apr. 20, 1959, Europ. T.S. No. 30; see
also Additional Protocol to the European Convention on Mutual Assistance in
Criminal Matters, Mar 17, 1978, Europ. T.S. No. 99. 35
Treaty on Mutual Assistance in Criminal Matters, May 25, 1973, United
States-Switzerland 27 U.S.T. 2019, T.I.A.S. No . 8302 For an analysis of the
treaty negotiation process, see Nadelmann, Negotiations in Criminal Law
Assistance Treaties, 33 AM. J. COMP. L. 467, 470-81 (1985) ; see also Ellis
& Pisani, The Unite States Treaties on Mutual Assistance in Criminal
Matters, in 2 INTERNATIONAL CRIMINAL LAW; PROCEDURE 151 (M. Bassiouni ed. 1986).
36 Extradition Treaty, US-Thai supra note 29. 37
Treaty between the Government of the Kingdom of Thailand and the Government of
the United States of America on Mutual Assistance in Criminal Matters, supra,
Note 28, arts. 1, 2 38 The classic definition of
extradition is found in Terlinden v. Ames, 184 US 270, 289 (1902): Extradition
may be sufficiently defined to be the surrender by one nation to another of an
individual accused or convicted of an offence outside of its own territory, and
within the territorial jurisdiction of the other, which being competent to try
and punish him, demands the surrender. See also Ortega v. Kansas City, Kan., 875
F.2d 1497, 199-1500 (10th Cir. 1989) 39 Nadlemann, supra
Note 1 at 65 40 Id at 65 41
Pursuant to the Ker-Frisbie rule, under certain circumstances, the United states
may abduct fugitives from a foreign country without first obtaining the foreign
state’s consent. See Ker v. Illinois, 119 US 436, 7 S.Ct 225, 30 L.Ed. 421
(1886); Frisbie v. Collins, 342 US 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952)
However, if the United States has an extradition treaty with the foreign
country, it is necessary either to obtain the foreign state’s cooperation or
consent prior to apprehension, or for the foreign state not to protest the
apprehension. See United States v. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir.
1991). 42 SHEARER, EXTRADITION IN INTERNATIONAL LAW 42
at 102
(1971). 43 Id at 118 44
Prarachabanyat song poo rai kam dan (The Statute Concerning Extradition in the
Thai Kingdom (B.E. 2472) arts 2.3-2.5, states that: “If there is no treaty or
bilateral convention or contract, Thailand is not bound to extradite its
citizens to a requesting country based on the following considerations: 2.2. A
nation has a duty to protect its citizens, and look after their well-being, and
extradition may violate that duty; 2.3. There is concern that the extradited
Thai national may not receive a fair hearing, particularly if the requesting
country is an enemy of Thailand, or there is a political dispute between
Thailand and that country. 2.4. Extradition of one’s own nationals violates
the principle that citizens have a right to live in their own country, and may
indirectly amount to banishment from one’s own homeland 2.5 The extradition of
one’s own nationals is an affront too the sovereignty of the nation. “ 45
Evans, The New Extradition Treaties of the United States, 59 AM. J. INT’L. L.
351, 352 (1965) 46 Extradition Treaty, US -Thail. supra
Note 29. 47 Extradition Treaty US-Thai supra note 29 at
art. 3. 48 Id. at art. 4 49 Id.
at art. 2 50 Id. at art. I 51
See Reid v. Covert, 354 US 1, 16, 77 S.Ct. 1222, 1230 (1957). 51
See Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1996) In interpreting to what
degree US police officials may participate with foreign police officials without
engaging in a joint venture, United States Courts have accepted situations
wherein foreign officials with no prior knowledge of any investigation or
misconduct, and acting solely upon request by the United States for assistance,
initiated a foreign search and seizure. see United States v. Molina-Chacon, 690
F.Supp 1235, (ED Pa. 1986), later proceeding 817 F.2d 201(CA2 NY). Other
examples of activity by United States agents which did not rise to the level of
a “joint venture” with foreign officials, and thus not been subject to
United States Constitutional Restraints, have included communication of
information by American Drug Enforcement agents, and the DEA’s physical
presence at the site of the search while videotaping the search by foreign
officials. See United States v. Behety, 32 F3d 503, 8 FLW Fed C 672 (11th Cir.
1994). 53 See, e.g. Rosado v. Civiletti, 621 F.2d. 1179,
1189 (2d Cir.), cert denied, 449 US 856 (1980); Stonehill v. United States, 405
F.2d 738, 743 (9th Cir. 1968), cert denied, 395 US 960 (1969). 54
See United States v. Verdugo-Urquidez, 494 US 259 (1990). 55
Nadelmann, supra Note 1 at 49. 56 Pramooan Gotmai
Wittipicharanakwam Aya, B.E. 2477 (Code of Criminal Procedure of 2477), art.
226, (Thail.) 57 see Ayagan jot Hong Raenlit (Attorney
General v. Hong Raenlit), San Dika (Supreme Court) No. 2099/2497 (Thail). In
this case for receiving stolen goods, the testimony of one defendant against
another was deemed inadmissible, and since there was no other sufficient
evidence, the conviction was reversed. 58 see Ayagan jot
Dam Padetdaskorn la puak (Attorney General v. Dam Padetdaskorn, et. al)., San
Dika (Supreme Court) No. 3611 /2528 (Thail). In this prosecution for attempted
murder, the testimony of two witnesses who claimed they had previously been
solicited by the defendant to commit a murder, but had been unable to
successfully accomplish the murder, was deemed admissible against the defendant
regarding a separate attempt murder. However, the Court stated that the
testimony had little evidentiary weight, and was admissible only because there
was other corroborative evidence. 59 see Ayagan jot
Sawang Jerakul la puak (Attorney General v. Sawang Jerakul, et. al.), San Dika
(Supreme Court) No. 715/2520 (Thail). This case involved trafficking in
prohibited weapons. The Defendant was charged with transportation of a
prohibited weapon in his van, with the intention of selling it in the North. The
testimony of a witness cooperating with the police, who posed as an employee of
the defendant was allowed in Court. 60 Ayagan jot
Chaiprada Nopakorn (Attorney General vs. Chaiprada Nopakorn) Thai Supreme Court
Decision 1123/2509. In this case audio tapes were deemed credible evidence by
the Court against the accused because there were six separate tape recordings,
amounting to over one hour of audio tape. The Court found that under such
circumstances it would be unlikely that someone would be able imitate the
Defendant’s voice for such a long period of time. 61
Constitution of Thailand, supra, note 10 at chap 3, sec. 34 (2540). 62
Id. at chap. 3, sec. 37. 63 Nadelmann supra. Note 1at
49. 64 For instance even as many law enforcement
agencies introduce “buy and bust” undercover operations into their drug
enforcement practice, most continue to resist the “sell and bust” operations
now employed by the DEA, as well as the “deep undercover operations undertaken
by the FBI. Nadelmann, supra Note 1 at 50-51. 65
Thailand Praised in US report, Bangkok Post, March 2, 1997
. 66 Nadelmann, supra Note 1 at 42.
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