Will the U.S. Extradite Michael & Peter Taylor to Japan?

Christopher Zepf
Vol. 42 Associate Editor

A federal judge ruled in early September, 2020, that former Green Beret Michael Taylor, and his son, Peter Taylor, could be extradited to face criminal proceedings in Japan for their role in the dramatic escape of former Nissan CEO Carlos Ghosn.[1] Japanese prosecutors accused the Taylors of violating Article 103 of the Japanese Penal Code, “enabling or harboring the escape of a criminal.”[2] Peter Taylor, 27, met with Ghosn at a hotel in Tokyo on December 28, 2019, where they presumably discussed the upcoming operation.[3] Michael Taylor, 59, entered Japan on December 29, 2019, posing as a musician while lugging large suitcases used for storing audio equipment.[4] After rendezvousing with Ghosn at a hotel in Osaka, one of those suitcases came to be occupied by the 66-year-old Lebanese businessman.[5] The suitcases, including the one in which Ghosn was hiding, were loaded onto a private jet at Kansai International Airport without going through security, which was typical for outgoing private jets in Japan at the time.[6] The entire operation was cleverly concealed by the flurry of the New Year’s holiday travel season. After landing in Istanbul, Ghosn boarded a second flight for his native Lebanon, arriving just in time to toast the New Year with his wife and old friends.[7] Lebanon does not have an extradition treaty with Japan and formally declined to return Ghosn to Japan,[8] despite Japan’s issuance of a red notice through Interpol.[9] While Ghosn is safe from prosecution in Japan, those who assisted him in his escape are not so fortunate. The Turkish flight crew who staffed the private jet from Osaka to Istanbul were indicted in Turkey for their involvement in the escape,[10] and the Taylors now face extradition from the U.S. U.S. federal law grants subject matter jurisdiction to federal courts to rule on the legality of extradition of American citizens to a foreign jurisdiction when an extradition treaty with that jurisdiction is effective and in force.[11] The court is to construe the treaty “liberally and in favor of the requesting nation.”[12] While the court should not determine whether the party up for extradition is guilty or innocent — that must be left to prosecutors in the country requesting extradition — it must consider whether “there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought.”[13] In their defense, the Taylors didn’t argue that they hadn’t committed the alleged acts, but rather that their conduct with regard to those acts did not amount to a violation of Japanese law.[14] Article 103 of the Japanese Penal Code prohibits enabling the escape of a criminal, but, they insisted, also requires that the criminal be in physical confinement or actively pursued by law enforcement.[15] Ghosn was out on bail at the time of his escape,[16] and he was not being actively pursued by law enforcement. As a result, the Taylors could not have violated Article 103, they claimed. It seems an odd defense indeed for the Taylors to say, with straight faces, that they do not dispute their role in helping Ghosn escape prosecution, but that the Japanese law against helping a criminal escape prosecution does not apply to them. It has been reported that Michael Taylor has spent upwards of $130,000 on legal fees thus far[17]; if this is the best defense his attorneys have been able to muster, it speaks to the Taylors’ beleaguered legal position. As the federal judge reviewing the case put it, “[the Taylors’] conduct literally brings them squarely within the purview” of Article 103.[18] The Taylors and their attorneys certainly would have known that this was a Hail Mary pass, and in a game in which they were already down a few scores. That the Taylors will be shipped off to face prosecution in Japan is quite likely, but not guaranteed. After receiving approval for extradition from a federal judge, the Taylors’ file arrives on the desk of the U.S. Secretary of State for a final decision.[19] The question, then, is whether the Taylors can influence the Trump administration to forego extradition. Here, we can only speculate. However, the alignment of a few extraordinary factors in the broader constellation of U.S. politics could plausibly lead to a result in the Taylors’ favor. 18 U.S.C. § 3188 puts a tentative time limit of two months on how long the Taylors may be held before extradition.[20] That clock starts ticking from the date of the judge’s decision in the case, which for the Taylors was September 4th.[21] In theory, the State Department should make a decision on whether to extradite by November 4th. Given this proximity to a national election of unprecedented circumstance (e.g., the COVID-19 pandemic), as well as political uncertainty both domestic and foreign, it is not unimaginable that the Taylors could pass under the wire, especially given the “America First” geopolitical stance taken by the Trump administration. The possibility of running out the clock is undercut, however, by the statute’s use of permissive language (i.e., “may”), which puts no real obligation on a judge to act:

“Whenever any person who is committed for rendition to a foreign government… is not so delivered up and conveyed out of the United States within two calendar months after such commitment… any judge of the United States, or of any State… may order the person so committed to be discharged out of custody, unless sufficient cause is shown to such judge why such discharge ought not to be ordered.”[22]

3188 further allows the State Department to argue there has been sufficient cause that precluded extradition within two months. Moreover, nothing in the statute prevents the Taylors from simply being arrested again. § 3188 merely provides that persons subject to extradition shall not be held indefinitely without a decision; it does not suggest that the accused person is off scot-free, nor does the extradition treaty between the U.S. and Japan contain any implication that a requested person can be let off the hook due to lengthy processing.[23] As a result, even if the State Department makes no decision by November 4th, it is unlikely that the Taylors will be able to escape extradition in the long run. Even assuming political turmoil or the Trump administration’s political philosophy were to somehow grant the Taylors reprieve from swift extradition, they would not be out of the woods — a new administration could still move forward with extradition, or the current one could simply delay the process to an extent deemed reasonable.

[1] Judge OKs Extradition for Men Accused of Aiding Ghosn Escape, THE ASAHI SHIMBUN (Sept. 5, 2020), http://www.asahi.com/ajw/articles/13699186#:~:text=BOSTON%2D%2DTwo%20American%20men,a%20federal%20judge%20ruled%20Friday. [2] Matter of Extradition of Taylor, No. 20-mj-1069-DLC, 2020 WL 5316685, at *3 (D. Mass. Sept. 4, 2020) [3] Extradition of Taylor at 3 [4] Extradition of Taylor at 3 [5] See Extradition of Taylor at 3 [6] Eric Johnson, Ghosn’s Escape Exposes Business Jet Industry’s Security Loopholes, THE JAPAN TIMES (Jan. 27, 2020), https://www.japantimes.co.jp/news/2020/01/27/national/business-jet-industr-carlos-ghosns-escape/. [7] Bruce Aronson, What’s Next for Ghosn Following His Flight to Lebanon?, THE JAPAN TIMES (Jan. 15, 2020), https://www.japantimes.co.jp/opinion/2020/01/15/commentary/japan-commentary/whats-next-ghosn-following-flight-lebanon/; Phil LeBeau, Kathy Liu & Meghan Reeder, Carlos Ghosn’s $350,00 Getaway Flight, CNBC (Jan. 6, 2020), https://www.cnbc.com/2020/01/07/nissan-ex-chairman-carlos-ghosns-350000-getaway-flight.html#:~:text=The%20private%20jet%2C%20a%20Bombardier,flight%20from%20Osaka%20to%20Istanbul. [8] Momoko Kidera, Lebanon Rejects Japanese Request for Ghosn Extradition, NIKKEI ASIA (Jan. 29, 2020), https://asia.nikkei.com/Business/Nissan-s-Ghosn-crisis/Lebanon-rejects-Japanese-request-for-Ghosn-extradition. [9] Carlos Ghosn: Interpol Issues ‘Red Notice’ for Nissan Ex-Boss’s Arrest, BBC (Jan. 2, 2020), https://www.bbc.com/news/world-europe-50972149. [10] Turkish Jet Suspect Testifies He Cooperated With Carlos Ghpsn Escape Under Duress, THE JAPAN TIMES (July 4, 2020), https://www.japantimes.co.jp/news/2020/07/04/business/corporate-business/turkey-carlos-ghosn-escape/. [11] See Extradition of Taylor at 2 [12] See Id. at 1 [13] See Id. at 3 [14] Id. at 3-4 [15] Id. [16] Ghosn: Bail Conditions Revealed by Lawyer, BBC (April 7, 2019), https://www.bbc.com/news/business-47844810#:~:text=Mr%20Ghosn%20had%20been%20released,be%20approved%20by%20a%20court. [17] Carlos Ghosn’s Accused Escape Plotters Stumble in Third Try for Bail, THE JAPAN TIMES (Aug. 10, 2020), https://www.japantimes.co.jp/news/2020/08/10/business/corporate-business/carlos-ghosn-accused-escape-plotters-bail/. It’s important to keep in mind, however, that this money likely came from Ghosn himself, and that there is much more of it to be had. See THE ASAHI SHIMBUN, supra note 1 (“Bank records show Ghosn wired more than $860,000 to a company linked to Peter Taylor in October 2019, prosecutors said in court documents. Ghosn’s son also made cryptocurrency payments totaling about $500,000 to Peter Taylor in the first five months of this year, prosecutors say.”). [18] Extradition of Taylor at 3 [19] U.S. DEP’T OF JUST., CRIM. RESOURCE MANUAL 620. CERTIFICATION TO THE SECRETARY OF STATE (2020). [20] 18 U.S.C. § 3188 (2012). [21] See THE ASAHI SHIMBUN, supra note 1. [22] 18 U.S.C. § 3188 (2012) (emphasis added). [23] Treaty on Extradition Between the U.S. and Japan, 1203 U.S.T I-19228 The views expressed in this post represent the views of the post’s author only.