NEW YORK (BLOOMBERG) – The father-son duo accused of helping former Nissan Motor Co chairman Carlos Ghosn escape criminal charges in Japan are making a fresh attempt to be released in the US on bail as they battle extradition.

A week after a federal magistrate in Boston denied their initial request, former Green Beret Michael Taylor and his son Peter have asked a different judge to grant a preliminary injunction allowing them to be released.

They’ve been in US custody since their arrests in May.

The Taylors face an uphill battle, given the presumption against bail in extradition proceedings.

In a court filing late on Thursday (July 16), the men said the Japanese government has failed to cooperate in a separate US extradition request and offered new arguments to support their contention that the alleged offence isn’t a crime under Japan’s penal code.

“From the start of this process, the US government has held the Taylors without legal basis,” the men said.

A spokeswoman for the US attorneys’ office in Massachusetts declined to comment on Friday (July 17).

The Taylors were arrested at the request of Japanese prosecutors, who have accused them of orchestrating Ghosn’s escape from Tokyo, where he was out on bail and facing charges of financial misconduct.

The Taylors haven’t denied involvement in helping smuggle Ghosn out of the country inside a black box designed for musical equipment.

But they argue that helping someone “jump bail” does not constitute a crime in Japan, citing reports in the local media and testimony by an expert on Japanese law.

In its extradition request to the State Department, Japan didn’t include any document formally charging the Taylors under Article 103 of the penal code, the rule that US prosecutors say the Taylors violated in Japan, according to Thursday’s filing.

“Japan only filed arrest warrants,” the Taylors said. “Those warrants, on their face, are based only on misdemeanor immigration violations, which the US government acknowledges are not extraditable offenses.”

A week ago, US Magistrate Donald Cabell rejected an earlier iteration of that argument, saying the alleged offence appeared to “fall squarely within the heartland” of Article 103.

But the filing on Thursday came in a separate case before US Judge Indira Talwani.

Last week, Talwani rejected the Taylors’ emergency request for bail but said the pair could ask for a preliminary injunction once Cabell issued his written decision.

Among the new arguments by the Taylors is a claim that Japan failed to stick to its side of the extradition treaty with the US in 2016, when Japanese executives at Takata Corp were indicted in Michigan for their involvement in a US$1 billion (S$1.39 billion) wire-fraud scheme. The State Department and the Justice Department declined to comment.

The new filing also argues the Taylors should be released due to the spread of Covid-19 in the jail outside Boston where they are being held.

Michael Taylor, 59, is especially susceptible because he had a portion of one of his lungs removed in a procedure called a partial lobectomy, he said in the filing.

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