The judge you are referring to is Honourable CHIEF JUSTICE YOGESH KUMAR SABHARWAL in Stefan Wathne's case
"Stefan Wathne, a national of Iceland and a resident of Russia was arrested for extradition in India. Wathne returned voluntarily to the United States with an agreement to preserve his rights under the Extradition Treaty between the Republic of India and the United States. A graduate of Harvard University, Wathne was charged in the Northern District of California, with conspiracy to launder proceeds from an illegal LSD manufacturing operation, in violation of 18 USC 1956. The offense is alleged to have been committed during the time period 1996-2000.
American authorities had utilized a mutual legal assistance treaty (MLAT) between the United States and Russia to summon the defendant for an interrogation in Moscow on December 16, 2003.An Assistant United States Attorney, and a DEA Special Agent attended the interrogation of Mr. Wathne. According to the defense, Mr. Wathne was told by the Russian investigator that under Article 308 of the Russian Federation Criminal Code a witness is criminally liable for failing to make a statement. Mr. Wathne was indicted in 2005.
On September 21, 2007 Wathne was arrested at the New Delhi airport pursuant to an Interpol Red Notice authorizing his arrest on the outstanding indictment in the United States. According to Mr. Wathne’s Motion to Dismiss, Mr. Wathne was detained in a:
“filthy, rat-infested New Delhi prison. On a daily basis he saw prisoners beaten by guards and slashed with razor blade by other prisoners. He was given inadequate food, which he was required to eat with his hands, and dirty water. He was threatened by prisoners and guards alike, and he was extorted.”
Mr. Wathne applied for bail and argued that during the time alleged in the Indictment, money laundering was not a crime in India, and the Indian court could therefore not grant the defendant’s extradition because the extradition treaty required dual criminality. The Indian court denied bail, and ruled that the Indian court could not adjudicate the issue of dual criminality until the United States filed a formal extradition request. Mr. Wathne filed a petition for writ of habeas corpus, and on November 15, 2007 the High Court of Delhi at New Delhi issued an initial Order granting Mr. Wathne bail, and suggesting that at the time of the extradition hearing, the Court might rule in Mr. Wathne’s favor .
On December 7, 2007 the Defendant entered into an agreement with the United States and agreed to return to voluntarily return to the United States, “on the condition that the United States agrees that he shall retain any and all rights he may have possessed under the Extradition treaty. “
The Defendant raised the same dual criminality challenge as well as others before the District Court in California. The Court rejected the Government’s position that the Court was without jurisdiction to rule on a dual criminality issue, because the issue had to have been decided by a Court of the country from whom extradition is sought. The Government also argued unsuccessfully that the Court must treat the defendant as if he had consented to extradition.
With regard to the merits of the Dual Criminality issue, the Government argued that the only test is whether money laundering was a crime in India at the time of the Indictment, not at the time the offense is alleged to have occurred. Judge Walker, however, ultimately adopted the defendant’s argument, based in large part on the testimony of defense experts. These experts included Justice Y K Sabharwal, the former Chief Justice of India, and Raju Ramachandran, the former Additional Solicitor General of India.
These witnesses both cited a House of Lords opinion to support their contentions that an Indian court would look to the date of commission of the offense. Expert Ramachandran testified that House of Lords opinions carry “great persuasive value”, and Ex Parte Pinochet Ugarte fortifies and supports his view that the defendant would not have been extradited by an Indian court.
Judge Walker concluded,
“Based on the testimony of Justice Sabharwal and Rmachandran, as well as the Constitution of India, Ex Parte Pinochet Ugarte (the only persuasive authority presented on the subject by either party), and the government’s lack of opposition, this court concludes that the dual criminality requirement of the extradition treaty under Indian law requires that the offense charged be punishable in both countries at the time of the conduct that constitutes the offense. Accordingly, had the government pursued extradition in India without the voluntary return agreement, an Indian court probably would have denied extradition on that basis.
One issue that may be of interest to practitioners is that the Court treated the defendant’s evidence with regard to Indian law as having been unopposed. The Court cited Federal Rule of Criminal Procedure 26.1, which provides that “issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or source, including testimony without regard to the Federal Rules of Evidence.”
The Court noted that the Government had offered no evidence of its own on the issue of dual criminality under Indian law, and relied on a summary argument that defendant’s interpretation would be rejected under American law.” The Court found that such an argument was not sufficient to address the dual criminality requirement as a matter of Indian law."