## Facts

- Wilfried Van Cauwenberghe, a Belgian citizen, was accused of participating with two Americans in a 1979–1981 scheme tied to the purchase and development of a condominium project near Kansas City, Missouri.
- The scheme targeted Belgian victims, including investment broker Roger Biard and a Belgian corporation owned by members of the Vanden Stock family, causing losses alleged at about $3.6 million.
- In October 1984, a federal grand jury indicted Van Cauwenberghe on multiple counts, including wire fraud (18 U.S.C. § 1343), interstate transportation of a victim of fraud (18 U.S.C. § 2314), and conspiracy (18 U.S.C. § 371).
- The United States sought his provisional arrest in Switzerland under the U.S.–Switzerland Extradition Treaty of May 14, 1900; Swiss authorities arrested him in Geneva in January 1985.
- Swiss authorities also seized certain assets in Switzerland in connection with the U.S. request and the treaty process, and Switzerland’s highest court approved extradition.
- After extradition to the United States, Van Cauwenberghe was tried in federal district court and a jury found him guilty on the charged counts.
- The prosecution ultimately proceeded to judgment on one wire-fraud count and one § 2314 count, with other counts dismissed.
- Van Cauwenberghe was sentenced to imprisonment and ordered to pay restitution based on the victims’ losses.
- On appeal, he argued (among other claims) that his convictions were barred by the extradition “rule of specialty” because the specific offenses of conviction were not expressly listed in the U.S.–Switzerland treaty, and he sought return of property seized in Switzerland.

## Issues

1. Whether prosecuting and convicting Van Cauwenberghe for wire fraud and interstate transportation of a victim of fraud violated the rule of specialty governing Swiss extradition under the U.S.–Switzerland treaty.
2. Whether alleged defects in Swiss extradition or related Swiss seizures provided a basis for reversing the U.S. convictions.
3. Whether the district court should have ordered return of money and documents seized in Switzerland under Fed. R. Crim. P. 41(e) (now Rule 41(g)).
4. Whether the sentence, including the restitution order, was improper.

## Decision

- The Ninth Circuit affirmed the judgment.
- The court held that the prosecution did not violate the rule of specialty because the extradition grant, viewed in light of the Swiss proceedings and Switzerland’s actions, permitted prosecution for the offenses of conviction, and Switzerland did not object.
- The court rejected efforts to overturn the convictions based on claimed errors in the Swiss extradition process, concluding those assertions did not bar the U.S. prosecution on this record.
- The court affirmed denial of relief under Rule 41(e) as to property seized in Switzerland, because the requested remedy was not available on these facts (including limits on ordering return of property held abroad and the defendant’s failure to show a present right to the property and a proper basis for the court to compel its return).
- The court upheld the sentence, including restitution, concluding that restitution tied to the victims’ losses from the fraudulent scheme was permissible, and that a participant in the scheme could be held responsible for the full actual loss (including on a joint-and-several basis as a sentencing condition where authorized).

## Legal Principles

- The rule of specialty generally limits prosecution of an extradited defendant to offenses for which extradition was granted; in applying specialty, courts look to the surrendering nation’s authorization and whether the surrendering nation objects.
- U.S. courts generally do not set aside a conviction based on asserted flaws in a foreign nation’s extradition process absent a showing that the prosecution violates the extradition grant or treaty limits recognized by the surrendering nation.
- Rule 41(e)/41(g) return-of-property relief is an equitable remedy that requires the movant to show a lawful possessory interest and a basis for the court to order return; practical and jurisdictional limits apply where property is held abroad by foreign authorities or institutions.
- Restitution may be ordered for losses caused by the fraud of conviction, and sentencing courts may impose restitution responsibility for the full amount of the victims’ actual loss attributable to the fraudulent scheme, including joint-and-several responsibility where authorized.

## Conclusion

The Ninth Circuit affirmed Van Cauwenberghe’s wire-fraud and § 2314 convictions and sentence after Swiss extradition, holding that the prosecution did not violate the specialty limits of the U.S.–Switzerland extradition process, that claimed problems in the Swiss proceedings did not invalidate the U.S. judgment, that Rule 41(e) did not require return of Swiss-seized property on this record, and that restitution based on the victims’ losses was properly imposed.


United States v. Van Cauwenberghe, 827 F.2d 424 (1987)