Global Criminal Media Expert

When the FBI Comes Calling…^®

APRIL 11, 2006

By Simon Hayes

Bandido suspect in minister's hands

THE pen of Justice Minister Chris Ellison is the only thing stopping Hew Raymond Griffiths being outfitted with an orange jumpsuit and ankle chains. On his desk is a paper that will decide whether the NSW Central Coast man is extradited to the US, where he faces up to 10 years' jail and a $US500,000 ($686,000) fine for copyright piracy.

Mr Griffiths, 43, of Berkeley Vale, has never been to the US, but he's in big trouble over there. Back in 2003 a grand jury in Alexandria, Virginia, indicted him on copyright infringement charges over his alleged involvement in the notorious DrinkorDie piracy ring.

The US alleges Mr Griffiths was Bandido, the co-founder of DrinkorDie, which distributed pirated software, movies and music - and taunted authorities about it - back in the 1990s. The indictment, drawn up by one of the elite Computer Hacking and Intellectual Property Unit teams working within the US Department of Justice, alleged that Mr Griffiths ran the organisation, controlled membership and arranged to reward high-performing members with computer parts.

It also claims he taunted law enforcement in an online interview, claiming: "I cannot be busted, I have no warez here." Even the Americans admit the Griffiths case is something of an experiment. Never before has a foreigner been extradited to face charges of online copyright piracy.

Numerous other members of DrinkorDie faced charges in their home countries. Twenty have been convicted in the US, with co-leader John Sankus receiving a 46-month sentence after pleading guilty in 2002. Others have been convicted in Britain, Finland, Norway and Sweden, with a British pair receiving sentences last year of two and 2 1/2 years.

But the federal government clearly had not been doing enough to satisfy the US that it was serious about protecting the rights of the giant US software companies and, having identified the Australian as a "high priority" target, they took matters into their own hands.

Last year, US Deputy Assistant Attorney-General Laura Parsky told the Senate Committee on Homeland Security that the Griffiths case underlined the determination with which the Justice Department would chase foreigners accused of piracy. "Where foreign authorities are reluctant or unable to prosecute intellectual property criminals whom the Department of Justice considers a high priority, the department is willing to seek the extradition of those offenders for prosecution in the US," Ms Parsky said.

"This is the first time the US has ever sought the extradition of an individual based solely on (alleged) online violations of US copyright law. "These efforts signal the United States' willingness to utilise all tools available to prosecute intellectual property criminals; geographic boundaries will no longer protect those who engage in these crimes." Back in 2003 her departmental colleague John Malcolm, testifying before the House of Representatives, was more gung-ho.

"The decision to extradite (Mr) Griffiths for his (alleged) role in intellectual copyright piracy should send a strong signal around the world," he said. "For too long, people engaged in piracy have believed that if they were outside the borders of the United States, they could violate our intellectual property laws with impunity. They're wrong. "This indictment and the extradition sends a clear and unequivocal message to everybody involved in illegal piracy that, regardless of where you are, the Justice Department will find you, investigate you, arrest you, prosecute you, and incarcerate you."

In parallel, US diplomats have been heavying Australia for tougher action on video game piracy - particularly for the criminalisation of mod-chipping - in the wake of a High Court decision last year that the practice did not breach copyright. They also want pay-TV piracy criminalised.

The US has been beefing up its investigative capability, with the FBI's Cyber Action Teams active worldwide, and last year FBI Director Robert Mueller described the organisation as the "global law-enforcement agency".

Mr Griffiths has been fighting extradition since he was indicted, winning an initial hearing in a magistrates court before an appeal on behalf of the US in a higher court. He has been in prison on remand since July 2004.

Last September he lost his final chance of avoiding extradition through the court system, with the High Court rejecting an application for special leave to appeal. The decision as to whether to extradite now rests with Senator Ellison. The Justice Minister is keeping his own counsel, with a spokesman for his office saying he was yet to make a decision.

"The Attorney-General's Department is currently preparing a submission concerning the surrender of Mr Griffiths to the US for the minister's consideration," he said. "This involves careful consideration of the requirements under the Extradition Act. "Any relevant representations that are made by, or on behalf of, Mr Griffiths will be taken into account."

Mr Griffiths faces another perhaps unintended punishment: deportation. Having failed to take up citizenship when he arrived in Australia as a child, he remains a British national.

Like Serb Robert Jovicic, who has since been allowed to return to Australia after having been deported in the wake of several burglary convictions, Mr Griffiths faces Section 501 of the Migration Act, which allows the Immigration Minister to deny him a visa on the grounds that he is not of "good character". That would leave the NSW man alone in Britain without friends or family. If he is extradited, Mr Griffiths faces an almost immediate trial, the so-called "rocket docket" that would have him go to trial within 60 days, and a highly conservative court.

Juries in northern Virginia, a dormitory community of Washington DC, are drawn from a population, sprinkled with US federal government employees and military personnel.

"That is one of the most conservative federal districts in the US," said Douglas McNabb, principal of McNabb Associates, a Washington law firm specialising in high-profile fraud and national security cases. "That means in practice the juries there are incredibly conservative." The process is also phenomenally expensive. While in Australia Mr Griffiths has had some of Australia's top barristers courtesy of their goodwill and legal aid, in the US strong representation would cost him at least $US50,000 ($70,000). Mr McNabb said federal authorities "don't care" where an offence is committed, and had cast a wide extradition net.

If Mr Griffiths was extradited he would have difficulty navigating the complex US justice and penal system. "The US Marshals will come and get him and he will be handcuffed and chained at the waist for security reasons," said Mr McNabb. "When he gets to the States he will be placed in very constrained detention facilities. He'll get a bail hearing, and he'll lose it because he'll be considered a flight risk."

US authorities were likely to take into account time already served on remand in Australia, but that decision would ultimately rest with the US Bureau of Prisons rather than the court.