(dissenting) — Four Seattle firefighters died while fighting a fire at Pang’s parents’ warehouse. After fire investigators determined that the fire had been deliberately set, a fugitive warrant was issued for Martin Pang, who fled to Brazil. Pang was charged with first degree arson and four counts of first degree felony murder, and the United States requested that Brazil extradite him on these charges. However, the Brazilian Supreme Court determined that Pang’s alleged act would be classified in Brazil as the single crime of aggravated arson. Therefore, Brazil granted extradition on the arson count alone.
The question before us is whether the State may prosecute Pang for the felony murder given that Brazil extradited him only for arson. The plain language of the United States/Brazil extradition treaty expressly permits prosecution for offenses included in the extradition request. Yet, the majority erroneously concludes that a doctrine of international law called specialty prohibits the State from prosecuting Pang for anything other than the arson count for which he was extradited. The majority’s conclusion is based on a misunderstanding of the specialty doctrine and is inconsistent with the vast weight of authority, which holds that the scope of any specialty limitations on prosecution is determined solely by the language of the applicable treaty.
*917Unless Pang is prosecuted for murder, he cannot be punished for the firefighters’ deaths because the codification of the "real facts doctrine” in our state sentencing laws excludes from sentencing consideration facts that establish the elements of a more serious crime. Thus, the majority’s decision not only violates the State’s unambiguous rights under the treaty, but also fails even to effectuate Brazil’s expectation that Pang will be held accountable for the deaths he may have caused
ANALYSIS
THE SPECIALTY DOCTRINE
Absent a treaty, the obligation to surrender a fugitive has never been recognized as a principle of international law.109 In order to ensure that criminal fugitives are brought to justice, many nations, including the United States, have entered into extradition treaties to facilitate the surrender and prosecution of fugitives. In order to guard against indiscriminate prosecution, particularly of political crimes, extradition treaties usually include provisions that limit prosecution for separate crimes unrelated to the extradition request.110 Such limitations on prosecution are collectively referred to as the "specialty doctrine” and serve to discourage nations from requesting extradition for one offense as a ruse for obtaining jurisdiction on a different offense. However, the precise form of the specialty doctrine varies because nations have negotiated different limits on postextradition prosecution.
For example, some extradition treaties prohibit prosecution for any offenses other than those for which extradition is specifically granted. In this most restrictive version of the specialty doctrine, the asylum country dictates the scope of permissible prosecution by its grant of extradition. It was this version of the rule that was applied in the *918Supreme Court’s first specialty doctrine case, Rauscher, and the rule that the majority erroneously suggests is implied in every extradition treaty to which the United States is a party.
Although some nations adhere strictly to this version of specialty in all extradition matters, "[i]n other states, including the United States, the prosecution may go forward if it is based on the same facts as those set forth in the request for extradition.”111 Nations adopting this variation of the specialty doctrine retain control over the scope of prosecution rather than allowing the asylum country to dictate its scope. It is this version of the specialty doctrine that is expressly incorporated into the United States/Brazil extradition treaty: "A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request. ”112 But both versions of the rule accomplish the purpose of the specialty doctrine: protection against indiscriminate prosecution of separate crimes unrelated to the extradition request.
In suggesting that the specialty doctrine must be implied into the United States/Brazil extradition treaty, the majority assumes, without support, that the specialty doctrine is solely defined as limiting prosecution to offen*919ses for which extradition was granted. But, as the First Circuit Court of Appeals pointed out:
Specialty ... is not a hidebound dogma, but must be applied in a practical, commonsense fashion. Thus, obeisance to the principle of specialty does not require that. . . the prosecution always be limited to specific offenses enumerated in the surrendering state’s extradition order . . . .[113]
In the present case, the specialty doctrine does not need to be implied for it is already expressly incorporated into the United States/Brazil extradition treaty, albeit in a form that is not conducive to the majority’s desired result. Thus, the question is not whether the specialty doctrine should be implied in the United States/Brazil extradition treaty, but whether this court can imply additional limitations on prosecution beyond the express specialty provisions agreed upon by the United States and Brazil.
A COURT MAY NOT IMPLY ADDITIONAL LIMITATIONS ON PROSECUTION IN THE FACE OF EXPRESS LIMITATIONS INCLUDED IN THE TREATY
The majority relies on United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886) for the proposition that an implied term of every extradition treaty is that an extradited fugitive may be prosecuted only for crimes for which he was surrendered. Yet, the majority, by its own analysis, demonstrates that Rauscher is not applicable in the present case.
In Rauscher, an American merchant ship officer who was accused of murdering a crewmember fled to Great Britain. The United States, pursuant to its first extradition treaty, requested the fugitive’s extradition for murder; the request was subsequently granted. The defendant, however, was subsequently tried and convicted of inflicting cruel and unusual punishment instead of murder. The Supreme Court vacated the sentence and held that the *920defendant could be tried only for an offense "with which he is charged in the extradition proceedings and for which he was delivered up . . . .”114 Moreover, the Court rejected the State’s argument that the treaty’s silence on the issue indicated that the United States and Great Britain intended that there be no limitations on prosecution. Instead, the Court implied such a limitation into the treaty.
At first blush, it might appear as though the Court had announced a rule that such a limitation is implied in all extradition treaties as a matter of course. Yet, the Court strictly limited its holding as an interpretation of the extradition treaty with Great Britain:
"The right of one government to demand and receive from another the custody of an offender who has sought asylum upon its soil, depends upon the existence of treaty stipulations between them, and in all cases is derived from, and is measured and restricted by, the provisions, express or implied, of the treaty. ”[115]
Consistent with the rule that the treaty defines the scope of the specialty doctrine, the Court initially looked to the text of the treaty itself.116 It was only after determining that the treaty was silent on this issue that the Court looked beyond the express treaty terms to determine whether the parties intended to limit the scope of post-extradition prosecution. Thus, it was only in the absence of express specialty provisions that the Court turned to the comity principles in general, the specific history between the United States and Great Britain on this issue in particular, and the statutory references to limitations on prosecution, in order to resolve this question.
The majority correctly identifies a treaty’s silence on the issue as an essential prerequisite for the Court to *921inquire beyond the language of the treaty itself. "The Court examined the treaty and the history of relations between the United States and Great Britain to determine whether the parties, in the absence of express incorporation, nevertheless intended the doctrine of specialty to be part of the treaty.”117 Crucial to the Court’s decision was the fact that the very issue had been the subject of much dispute between the nations, with Great Britain making very clear that it expected that the scope of prosecution would be limited by the grant of extradition.118 The Court also looked to a statute, now codified at 18 U.S.C. § 3192, that authorizes the President to provide for an extradited fugitive’s transportation and safekeeping "until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, . . . .”119 Yet, the court resorted to this language only to resolve "any doubt upon this construction of the treaty.”120
Thus, Rauscher stands for the proposition that a court’s overriding task is to determine what the signatory nations to the extradition treaty intended to include in the way of limitations on prosecution. Only when the text of the treaty fails to provide expressly for such limitations is the court then authorized to look beyond the treaty. Lastly, when there is evidence that the signatory nations expected that prosecution would be limited to charges for which surrender is granted, the court may then imply this term into the treaty.
Curiously, the majority concedes that Rauscher autho*922rizes courts to imply prosecution limitations only when the treaty fails to provide expressly for such limitations:
Under Rauscher the specialty doctrine may be implied where a treaty is silent on the issue and there is no reason to assume the signatory nations did not abide by the principles of comity.[121]
Indeed, the majority must concede this point. Were it the case that Rauscher prohibits the prosecution of any extradited fugitive for offenses other than those for which extradition was granted, the majority would need to explain, and indeed has failed to offer any explanation for, the numerous circuit court decisions upholding such convictions against alleged specialty doctrine violations.122
Unlike the treaty at issue in Rauscher, most United States extradition treaties, including the one with Brazil, now expressly define the limits of postextradition prosecution. Again, the majority concedes that "[i]n determining whether there has been a violation to the specialty doctrine, courts have consistently examined the terms of the treaty for any limitations on prosecution.”123 Indeed, the majority cites a formidable list of federal extradition cases in which the courts, rather than implying limitations into the applicable treaties, had confined themselves to the specialty doctrine as expressly provided for in the treaties at issue.124
The majority, having identified an overwhelming
*923number of cases in which the courts confined their specialty doctrine analysis to the express limitations in the relevant treaties, fails to offer a single case in which a court implied prosecution limitations beyond the express limitations included in the relevant treaty. This failure is understandable since it is well settled that the only limitations on post-extradition prosecution are those contained in the applicable extradition treaty. "To determine the nature and extent of the right we must look to the treaty which created it.”125
Although the majority is correct that international law is incorporated into domestic law,126 "extradition is 'not
*924uniformly recognized as part of customary international law.’ ”127 "[B]ecause United States extradition practice is based solely on the existence of a treaty,” the Supreme Court has rejected the suggestion that extradition cases are governed by customary international law and has "limited the practice to a strict interpretation of the applicable treaty.”128
This view comports with Brazil’s understanding with respect to any limitations on prosecution:
[LJegally binding international acts are the only legal instruments capable of binding two or more sovereign States together. Thus, provided that the terms of the Treaty of Extradition . . . are respected, it will be incumbent upon the justice system of the United States of America to establish a suitable punishment for the crime of arson in the first degree, resulting in four deaths and the consequences thereof, under U.S. law.[129]
Thus, the question of whether the State may prosecute Pang for felony murder depends on the express specialty provisions of the United States/Brazil extradition treaty.
THE UNITED STATES/BRAZIL EXTRADITION TREATY PROHIBITS PROSECUTION ONLY FOR CHARGES THAT ARE NOT INCLUDED IN THE EXTRADITION REQUEST
The United States/Brazil extradition treaty provides that: "A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the
*925request.... ”130 "[T]reaties are to be interpreted in accordance with the plain meaning of the words.”131 The State requested Pang’s extradition on arson and first degree felony murder charges arising out of his act of intentionally setting a fire that resulted in death. It is undisputed that this act is an extraditable offense. Since Pang is not being prosecuted for any offenses other than those that gave rise to the request for extradition, the State’s prosecution of Pang for murder does not violate the United States/Brazil extradition treaty and fully complies with the express limitations negotiated by the United States and Brazil.
Giving effect to the plain language of the treaty and refusing to imply additional limitations finds ample case support. The majority itself concedes that two circuit court decisions have affirmed convictions on charges other than those for which extradition was granted based on the express language of the treaties at issue.132 The majority never explains how these cases could have been decided consistent with a rule that purportedly prohibits such prosecutions in every extradition case.
For example, in Fiocconi the defendants were extradited from Italy to the United States on charges of conspiring to import narcotics. They were later additionally charged and convicted of substantive narcotics crimes. They appealed their convictions, arguing that under Rauscher there was an implicit prohibition against prosecution for charges other than the conspiracy charge for which they were extradited. In upholding their convictions the circuit court looked to the United States/Italy extradition treaty, which provided, much like the United States/Brazil extra-
*926dition treaty, that: "the person . . . delivered up for the crimes enumerated . . . shall in no case be tried for any . . . crime, committed previously to that for which his . . . surrender is asked.”133 The court observed:
If the countries had intended that the requesting government could not try the accused for any crime committed .before the time of his surrender other than the crime for which he was extradited, they could have accomplished this by adopting one of the standard clauses to that endJ[134]
In doing so, the court expressly rejected the suggestion that under Rauscher greater limitations on prosecution may be implied in the face of express treaty limitations.
Another example is United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989), in which the defendant was convicted of charges other than those for which he was extradited. The court upheld the convictions on the basis that the treaty prohibited prosecution only for offenses other than those "established by the facts in respect of which his extradition has been granted.”135 The court acknowledged that the crimes charged were not those for which extradition was granted. The crimes were based, however, on the same underlying facts and, therefore, complied with the specialty provisions in the treaty. Thus, there was no violation of the specialty doctrine.136 Similarly, had the United States and Brazil intended to limit prosecution of fugitives to crimes for which the asylum country agrees to extradite, they could have used language to that end. Such limitation is included in many of our extradition treaties.137
*927Indeed, the majority cites only a single post-Rauscher case in which a court held that a fugitive cannot be prosecuted for offenses other than those for which extradition was granted. Yet, that case was based on the express language of the treaty, which included just such a limitation. In United States v. Khan, 993 F.2d 1368 (9th Cir. 1993), the United States requested that Pakistan extradite a fugitive charged with conspiracy to import heroin and with using a communication facility to facilitate the conspiracy. Pakistan directed that the defendant could be "surrendered . . . for trial under the relevant American Law,”138 yet the Pakistani extradition materials referred only to the conspiracy charge.139 The court held that because Pakistan did not unambiguously agree to extradite the defendant on the communications facility charge, the specialty doctrine had been violated and the conviction on that charge should be reversed.140 Yet, the court did so because "[t]he operative treaty in this case contains the following language: 'A person surrendered can in no case be [prosecuted] . . . for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place.’ ”141 The court acknowledged that the Sensi court had held that the specialty doctrine is satisfied as long as the defendant is charged with crimes arising out of the same facts for which his extradition was granted. However, the court clarified that that holding was based on the more expansive version of the *928specialty doctrine expressly incorporated into the treaty at issue in that case.142
Thus, an extraditee may challenge his prosecution for crimes other than those for which extradition was granted when the express specialty provisions limit prosecution to those offenses. When the extradition treaty expressly provides for lesser protection, however, the extraditee may assert only the limits of any rights as expressed in the treaty. Since the United States requested that Pang be extradited on four felony murder counts as well as arson, and the extradition treaty with Brazil limits the offenses that may be prosecuted only to those "which gave rise to the request,” there is simply no violation of the treaty terms.
A GOOD FAITH READING OF THE UNITED STATES/BRAZIL EXTRADITION TREATY IS CONSISTENT WITH THE PLAIN MEANING OF THE EXPRESS SPECIALTY TERMS
I agree with the majority that we must interpret treaties in good faith.143 However, the Johnson Court’s admonition that we construe extradition treaties in good faith is fully met by giving effect to the plain language of the United States/Brazil extradition treaty.
In Johnson, the defendant was indicted on federal charges of fraud and conspiracy to commit fraud; yet, the United States proceeded upon only the conspiracy charge. After the defendant was convicted, he fled to Canada and the United States requested his extradition. Canada refused to extradite, having determined that conspiracy to commit fraud was not an extraditable offense. The United States recharged the substantive fraud count, requested extradition for that offense, and Canada extradited the fugitive. The United States then imprisoned the defendant *929for the conspiracy conviction. In affirming a lower court order discharging the defendant, the Supreme Court emphasized that an extradition treaty:
should be construed in accordance with the highest good faith, and that it should not be sought by doubtful construction of some of its provisions to obtain the extradition of a person for one offense and then punish him for another and different offense.[144]
The Court was rightly concerned with the government’s blatant manipulation of the extradition process to obtain extradition for one offense as a ruse for obtaining jurisdiction for another that "is entirely different from the one for which he was extradited.”145 As discussed earlier, this is the unifying purpose underlying the various versions of the specialty doctrine.
In the present case, however, the United States requested and Brazil granted extradition for the same criminal act: the intentional burning of a building that resulted in death. The majority mistakenly assumes that the relevant inquiry is whether the two nations criminalize the act in the same way. Yet, the Supreme Court has made clear that:
The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.[146]
Extradition treatises universally recognize this distinction.147
Thus, allowing the State to prosecute Pang for murder *930does not find us engaging in "doubtful construction” in order to allow prosecution for "another and separate” offense from that for which Pang was extradited. Pang is accused of intentionally setting a fire that resulted in death. Under both Washington and Brazilian law this act is criminal and is more severely punished than simple arson because of the resulting death. Although the act is differently codified in the two countries, as Collins makes clear, the dispositive inquiry is whether the act is criminal in both jurisdictions. Therefore, giving effect to the plain meaning of the United States/Brazil extradition treaty does not violate our obligation to construe treaties in good faith.
THE "REAL FACTS” DOCTRINE PROHIBITS THE TRIAL COURT FROM CONSIDERING THE DEATHS AS AGGRAVATING FACTORS IN SENTENCING
The majority attempts to mitigate the injustice of its decision with the suggestion that, whether or not Pang is convicted for the felony murders, the trial court could depart from the standard range arson sentence and impose the statutory maximum of life imprisonment.148 The majority’s unstated assumption is that the firefighters’ deaths could be used as aggravating factors justifying the imposition of an exceptional sentence. Indeed, as the majority points out, the Brazilian Supreme Court assumed that Pang could be as severely punished whether the firefighters’ deaths served as the basis for an exceptional arson sentence or separate felony murder sentences.149
However, despite the trial court’s discretion to depart from the standard range based on the presence of aggravating circumstances, this discretion is sharply limited *931by the "real facts doctrine.” As Justice Smith pointed out in State v. Johnson, 124 Wn.2d 57, 71 n.33, 873 P.2d 514 (1994): "The 'real facts’ concept of RCW 9.94A.370(2) excludes consideration of either uncharged crimes or crimes charged but later dismissed.”150 RCW 9.94A.370(2) provides, in part:
Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in RCW 9.94A.390(2)(c), (d), (f), and (g)[151]
In the present case, the arson deaths cannot be used to depart from the standard range because they establish an essential element of first degree felony murder.152 And there can be no dispute that felony murder is both a separate and more serious crime since it is precisely because Washington penalizes Pang’s alleged act as two separate crimes that we are deciding this case at all. With the murder charges dismissed and the trial court’s inability to otherwise consider the deaths, the trial court will have no choice but to enter a standard range sentence for first degree arson, which, as the majority points out, would be approximately two years in Pang’s case.153
*932CONCLUSION
The majority’s decision to dismiss the murder charges defeats the very purpose of extradition:
The law of extradition is . . . founded upon the broad principle that it is to the interest of civilized communities that crimes, acknowledged to be such, should not go unpunished, and it is part of the comity of nations that one state should afford to another every assistance towards bringing persons guilty of such crimes to justice.[154]
Yet, under the majority’s holding, the deaths of four innocent victims will go unpunished, even though the laws of both Brazil and Washington recognize arson resulting in death as a more serious crime than arson alone. Thus, rather than furthering the ends of justice, the majority rewards Pang’s calculated flight and ensures that neither nation’s will is done by immunizing Pang from any liability for the deaths he may have caused. Because Pang’s prosecution for murder would be wholly consistent with both our treaty obligations toward Brazil and the overwhelming weight of authority, Pang should stand trial for murder and arson.
Dolliver and Talmadge, JJ., concur with Durham, C.J.
United States v. Rauscher, 119 U.S. 407, 411-12, 7 S. Ct. 234, 30 L. Ed. 425 (1886); Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S. Ct. 191, 78 L. Ed. 315 (1933).
See Fiocconi v. Attorney Gen., 462 F.2d 475, 481 (2d Cir. 1972).
Restatement (Third) of Foreign Relations Law of the United States § 477 cmt. a (1987) (emphasis added); accord David B. Sweet, Annotation, Application of Doctrine of Specialty to Federal Criminal Prosecution of Accused Extradited from Foreign Country, 112 A.L.R. Fed. 473, 517 (1993) ("|T]n order to avoid a violation of the doctrine of specialty . . ., the prosecution must be based upon the same evidence, facts, or acts as set forth in the request for extradition.”) (emphasis added); Mary-Rose Papandrea, Comment, Standing to Allege Violations of the Doctrine of Specialty: An Examination of the Relationship between the Individual and the Sovereign, 62 U. Chi. L. Rev. 1187, 1187 (1995) ("The doctrine of specialty dictates that once the asylum state extradites an individual to the requesting state under the terms of an extradition treaty, that person can be prosecuted only for the crimes specified in the extradition request.”) (emphasis added).
Treaty of Extradition Between the United States of America and the United States of Brazil, Jan. 13, 1961, U.S.-Braz., art. XXI, 15 U.S.T. 2093 (emphasis added).
United States v. Saccoccia, 58 F.3d 754, 767 (1st Cir. 1995) (citations omitted).
Rauscher, 119 U.S. at 424.
Rauscher, 119 U.S. at 429 (quoting Commonwealth v. Hawes, 13 Bush 697 (Ky. 1878)).
Rauscher, 119 U.S. at 410-11.
Majority at 905 (emphasis added); see also United States v. Alvarez-Machain, 504 U.S. 655, 659, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) (noting how the Rauscher court "carefully examined the terms and history of the treaty”).
Rauscher, 119 U.S. at 415; see also Fiocconi v. Attorney Gen., 462 F.2d 475, 480 (2d Cir.) (observing that the Rauscher Court had concluded, based on Great Britain’s prior objections, that Great Britain had interpreted the treaty as prohibiting prosecution for crimes other than those for which extradition was granted), cert. denied, 409 U.S. 1059 (1972).
Rauscher, 119 U.S. at 423 (quoting Untied States Rev. Stat. § 5275).
Rauscher, 119 U.S. at 423 (emphasis added).
Majority at 905.
See, e.g., United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994), cert. denied, 513 U.S. 1128 (1995); United States v. Riviere, 924 F.2d 1289 (3d Cir. 1991); Leighnor v. Turner, 884 F.2d 385 (8th Cir. 1989); United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989); United States v. Levy, 905 F.2d 326, 328 (10th Cir. 1990), cert. denied, 498 U.S. 1049 (1991); United States v. Diwan, 864 F.2d 715 (11th Cir. 1989); United States v. Kaufman, 858 F.2d 994 (5th Cir. 1988); United States v. Cuevas, 847 F.2d 1417, 1427 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989); United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986); Fiocconi v. Attorney Gen., 462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059 (1972).
Majority at 905.
Majority at 905-06 n.75. See, e.g., United States v. Baramdyka, 95 F.3d 840, 845 n.3 (9th Cir. 1996) (citing Treaty Providing for the Extradition of Fugitives *923from Justice, Apr. 17, 1900, U.S.-Chile, art. VII, 32 Stat. 1850), cert. denied, 117 S. Ct. 1282 (1997); United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir.) (citing Treaty on Extradition and Cooperation in Penal Matters, Apr. 6, 1973, U.S.-Uru., art. XIII, P.I.A.S. 10,850), cert. denied, 516 U.S. 933 (1995); United States v. Fowlie, 24 F.3d 1059, 1064 n.2, 1065 (9th Cir. 1994) (citing Extradition Treaty Between the United States and Mexico, May 4, 1978, U.S.-Mex., 31 U.S.T. 5,059), cert. denied, 513 U.S. 1086 (1995); United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (citing Treaty on Extradition and Cooperation in Penal Matters, Apr. 6, 1973, U.S.-Uru., art. 13, T.I.A.S. 10,850), cert. denied, 513 U.S. 1128 (1995); United States v. Khan, 993 F.2d 1368, 1373 n.4 (9th Cir. 1993) (citing Extradition Treaty, Dec. 22, 1931, U.S.-Pak., art. 7, 47 Stat. 2124); United States v. Levy, 905 F.2d 326, 328 (10th Cir. 1990) (citing Extradition Treaty, June 8, 1972, U.S.-U.K., art. XII(1), 28 U.S.T. 227), cert. denied, 498 U.S. 1049 (1991); Leighnor v. Turner, 884 F.2d 385, 386 (8th Cir. 1989) (citing Treaty Concerning Extradition, June 20, 1978, U.S.-F.R.G., 32 U.S.T. 1,485); United States v. Sensi, 879 F.2d 888, 895 (D.C. Cir 1989) (citing Extradition Treaty, June 8, 1972, U.S.-U.K., art. 7, 28 U.S.T. 233); United States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988) (citing Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 8, 1972/Oct. 21, 1976, U.S.-U.K., art. XII, 28 U.S.T. 227), cert. denied, 489 U.S. 1027 (1989); United States v. Cuevas, 847 F.2d 1417, 1427 (9th Cir. 1988) (citing Treaty on Extradition, May 14, 1900, U.S.-Switz., art. IX, 31 Stat. 1928, T.S. No. 354), cert. denied, 489 U.S. 1012 (1989); United States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987) (citing Treaty Respecting Extradition, Feb. 15, 1939, U.S.-Monaco, 54 Stat. 1780); United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (citing Treaty on Extradition, May 14, 1900, U.S.-Switz., art. IX, 31 Stat. 1928); Fiocconi v. Attorney Gen., 462 F.2d 475, 481 (2d Cir.) (citing Extradition Convention, Mar. 23, 1868, U.S.-Italy, art. III, 15 Stat. 631), cert. denied, 409 U.S. 1059 (1972)).
Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S. Ct. 191, 78 L. Ed. 315 (1933); accord United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) ("We look to the language of the applicable treaty to determine the protection an extradited person is afforded under the doctrine of specialty.”), cert. denied, 513 U.S. 1128 (1995).
See majority at 908.
Eric P. Wempen, Note, United States v. Puentes: Re-Examining Extradition Law and the Specialty Doctrine, 1 J. Int’l Legal Stud. 151, 153 (1995) (quoting 1 M. Cherif Bassiouni, International Extradition: United States Law and Practice 319 (2d rev. ed. 1987)).
M. Cherif Bassiouni, International Extradition: United States Law and Practice 404-05 (3d rev. ed. 1996).
Letter from Nelson A. Jobim, Minister of State for Justice, Braz., to Janet Reno, Att’y Gen., U.S. (Sept. 26, 1996).
Treaty of Extradition Between the United States of America and the United States of Brazil, Jan. 13, 1961, U.S.-Braz., art. XXI, 15 U.S.T. 2,093 (emphasis added).
Bassiouni, supra, at 411.
Majority at 912 (discussing Fiocconi v. Attorney Gen., 462 F.2d 475 (2d Cir.), cert. denied, 409 U.S. 1059 (1972) and United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989)).
Fiocconi, 462 F.2d at 481 (quoting Extradition Convention, Mar. 23, 1868, U.S.-Italy, art. III, 15 Stat. 631) (emphasis added) (omissions in original).
Fiocconi, 462 F.2d at 481 (citing 1 John B. Moore, A Treatise on Extradition and Interstate Rendition §§ 148-49, at 194-96 (1891)).
Sensi, 879 F.2d at 895 (quoting Extradition Treaty, June 8, 1972, U.S.U.K., art. XU, 28 U.S.T. 227, 233) (emphasis altered).
Sensi, 879 F.2d at 895-96.
See, e.g., Extradition Treaty, Mar. 19, 1924, U.S.-Bulg., art. IV, 43 Stat. 1886 ("No person shall be tried for any crime or offense other than that for *927which he was surrendered.”) (emphasis added); Treaty Providing for the Extradition of Fugitives from Justice, Apr. 17, 1900, U.S.-Chile, art VIII, 32 Stat. 1850 ("No person surrendered . . . shall ... be triable or tried or be punished for any crime or offense committed prior to his extradition, other than that for which he was delivered up . . . .”) (emphasis added); Treaty on Extradition Between the United States of America and Canada, Dec. 3, 1971, U.S.-Can., art. 12, 27 U.S.T. 983 ("A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted . . . .”) (emphasis added).
Khan, 993 F.2d at 1374.
Khan, 993 F.2d at 1373.
Khan, 993 F.2d at 1375.
Khan, 993 F.2d at 1374 (emphasis added) (alteration in original).
Khan, 993 F.2d at 1374.
See majority at 909 (quoting Johnson v. Browne, 205 U.S. 309, 321, 27 S. Ct. 539, 51 L. Ed. 816 (1907)).
Johnson, 205 U.S. at 321 (emphasis added).
Johnson, 205 U.S. at 316 (emphasis added).
Collins v. Loisel, 259 U.S. 309, 312, 42 S. Ct. 469, 66 L. Ed. 956 (1922).
See Geoff Gilbert, Aspects of Extradition Law 106 (1991) ("It is the facts of the case that are all important. . . . [S]pecialty allows the fugitive to be prosecuted for any charge made out by the facts on which surrender was *930ordered.”); I.A. Shearer, Extradition in International Law 146 (1971) ("[T]he only question is whether the acts constituting the offence charged would, if committed in the requested State, constitute an offence (not necessarily the offence charged) by the law of that State and made extraditable in the treaty.) (emphasis in original).
Majority at 895-96.
See majority at 896.
Accord State v. Houf, 120 Wn.2d 327, 332, 841 P.2d 42 (1992); State v. McAlpin, 108 Wn.2d 458, 466, 740 P.2d 824 (1987).
RCW 9.94A.390 was amended by Laws op 1996, cb. 248, § 2 and by Laws op 1996, ch. 121, § 1 changing subsection (2)(c), (d), (f), and (g) to subsection (2)(d), (e), (g), and (h) respectively. These statutory exceptions, which are for certain major economic offenses, violations of the Uniform Controlled Substances Act, sexual abuse, or domestic violence, would not apply in the present case.
A person is guilty of murder in the first degree when:
(c) He or she commits or attempts to commit the crime of... .
(4) arson in the first or second degree . . . and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants
RCW 9A.32.030(l)(c).
Majority at 895 (citing RCW 9.94A.310).
Mary-Rose Papandrea, Comment, Standing to Allege Violations of the Doctrine of Specialty: An Examination of the Relationship between the Individual and the Sovereign, 62 U. Chi. L. Rev. 1187, 1192 (1995) (quoting In re Arton, 1 Q.B. 108, 111 (1896)).