CRISTIAN AGUASVIVAS, Petitioner, Appellee, v. MICHAEL POMPEO, U.S. Secretary of State; JEFFREY ROSEN, Acting U.S. Attorney General; JOHN GIBBONS, U.S. Marshal for the District of Massachusetts; WING CHAU, U.S. Marshal for the District of Rhode Island; DANIEL MARTIN, Warden, Wyatt Detention Facility, Respondents, Appellants.
No. 19-1937
United States Court of Appeals For the First Circuit
January 7, 2021
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. John J. McConnell, Jr., Chief U.S. District Judge]
Amy Barsky, with whom Fick & Marx LLP was on brief, for appellee.
Lee Gelernt, Cody Wofsy, Roberto Gonzalez, and Lynette Labinger on brief for the American Civil Liberties Union Foundation and the ACLU Foundation of Rhode Island, amici curiae.
Christopher J. Smith, Associate Director, Office of International Affairs, Criminal Division, U.S. Department of
*
For the reasons explained below, we disagree with the district court that the United States is bound by the BIA‘s prior determination awarding Aguasvivas CAT relief. We nevertheless affirm the grant of habeas relief because we agree that the United States has failed to file the necessary documents to support an extradition request.
I.
On December 6, 2013, Aguasvivas was with his brother, Francis (“Frank“), when three Dominican drug officers, including Lorenzo Ubri, handcuffed and attempted to arrest Aguasvivas. Shots were fired while the officers were attempting to put Aguasvivas
In December 2013, a Dominican warrant issued for Aguasvivas‘s arrest. Eight months later, Aguasvivas fled to the United States. In immigration court, he sought asylum, withholding of removal, and CAT relief because of his fear of Dominican police. The immigration judge denied all relief, but in August 2016, the BIA reversed and granted withholding of removal under the CAT. The BIA found that it was “more likely than not that [Aguasvivas would] be tortured at the instigation of or with the consent or acquiescence of public official[s] in the Dominican Republic” if he returned.1
Just over three years after the warrant issued, in February 2017, the Dominican Republic submitted an extradition request to the United States. Extradition is a “two-step procedure [that] divides responsibility . . . between a judicial officer and the Secretary of State.” United States v. Kin-Hong, 110 F.3d 103,
Upon receipt and review of the request from the Dominican Republic to extradite Aguasvivas, the United States filed an extradition complaint in the District of Massachusetts. A U.S. warrant issued, and Aguasvivas was arrested in September 2017 in Lawrence, Massachusetts. Following a hearing, a magistrate judge in the District of Massachusetts certified Aguasvivas‘s extradition in December 2018. The magistrate judge found that the extradition request was supported by the documentation required by the Dominican Republic-United States Extradition Treaty (“Extradition Treaty“), Extradition Treaty, Dom. Rep.-U.S., Jan. 12, 2015, T.I.A.S. No. 16-1215, and that there was probable cause
Magistrates’ certifications of extraditability are not appealable final orders under
With this appeal, the United States challenges both the ruling that the BIA‘s 2016 CAT determination precludes extradition and the ruling that the request of the Dominican Republic does not
II.
A.
We begin with the United States’ challenge to the district court‘s ruling that the Convention Against Torture precludes Aguasvivas‘s extradition. At issue here, according to Aguasvivas, is the prospect that, if extradited to the Dominican Republic, he will be tortured. A claim of feared torture warrants attention in the extradition context because of the principle of non-refoulement in international law, reflected in Article 3 of the CAT, and enacted in the United States (as pertinent here) in the “FARR Act.” See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-822; Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (“[The FARR Act] implements Article 3 of the international Convention Against Torture, known as CAT.“). That Act states in part that “[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” FARR Act § 2242(a). It then “delegates the responsibility for ‘prescrib[ing] regulations to implement the obligations of the United States’ under the CAT to ‘heads of the appropriate
Aguasvivas, though, does not want to wait to see what the Secretary decides. Instead, he launched a preemptive strike, asking the district court to rule now that the threat of torture must prevent his extradition, and thus that there is no reason to detain him. And the district court agreed, reasoning that, because the BIA previously found that removal of Aguasvivas by immigration authorities was barred by the CAT, the Secretary is estopped from ruling otherwise. In challenging that ruling, the United States advances two arguments that command our attention. First, the United States contends that the district court exceeded its own statutory jurisdiction by inquiring into the subject of whether the CAT precluded Aguasvivas‘s extradition. In support of this argument, the United States relies on the so-called “rule of non-inquiry,” Kin-Hong, 110 F.3d at 110;5 the Senate‘s declaration that
A federal court possesses Article III jurisdiction to hear a case or controversy only if it alleges an injury in fact. See Susan B. Anthony List v. Driehaus (SBA List), 573 U.S. 149, 157-58 (2014). An allegation of future injury satisfies that requirement only “if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Id. at 158 (quoting Clapper v. Amnesty Int‘l U.S.A., 568 U.S. 398, 414 n.5 (2013)); see also Reddy v. Foster, 845 F.3d 493, 500 (1st Cir. 2017). We have previously described our ripeness inquiry as having “roots in both the Article III case or controversy requirement and in prudential considerations,” Reddy, 845 F.3d at 500 (quoting Roman Cath. Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)), but we acknowledge that the Supreme Court has moved away from considering
2.
We thus move to the merits of Aguasvivas‘s collateral estoppel claim, which is that the Secretary is estopped from
As one amicus brief8 has pointed out, in theory the Secretary could have sought the same diplomatic assurances from the Dominican Republic during the litigation of Aguasvivas‘s CAT claim in removal proceedings. See
B.
We turn now to Aguasvivas‘s claim that the documentary requirements of the Dominican Republic-United States Extradition Treaty have not been met, beginning with the question of whether we have habeas jurisdiction to review the magistrate‘s determination on the issue at all and then proceeding to the merits.
1.
In its briefs, the United States makes no claim that we lack jurisdiction to determine whether the documentary requirements of the treaty have been satisfied. Counsel for the United States explained that the United States has previously and
Nor has the United States argued that this set of claims fails to allege an injury in fact. We agree that there is an “immedia[te] and real[]” controversy as to the probable cause and documentation issues that Aguasvivas raises, because he would not be subject to detention but for the magistrate judge‘s challenged certification that the documentation was proper and that probable cause existed. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)). And even though these issues could be mooted if the Secretary decides that Aguasvivas should not be extradited, that possibility of eventual relief does not change the fact that the Secretary seeks to have Aguasvivas detained now.
2.
So we turn to the merits of Aguasvivas‘s argument -- accepted by the district court -- that the request for extradition does not comply with the basic documentary requirements of the treaty. That determination turned on an interpretation of the
(a) a copy of the warrant or order of arrest or detention issued by a judge or other competent authority;
(b) a copy of the document setting forth the charges against the person sought; and
(c) such information as would provide a reasonable basis to believe that the person sought committed the offense or offenses for which extradition is requested.
Extradition Treaty art. 7, § 3.10
Aguasvivas contends that the request for his extradition failed to satisfy these documentary requirements for two reasons: (1) the warrant was not a warrant for his arrest or detention because it did not name him; and (2) the request did not include
a.
The Dominican Republic submitted a translated copy of the warrant for the arrest of Aguasvivas. It reads in part:
“[T]he judge . . . can ordain the arrest of a person when . . . his presence is necessary and there is evidence to reasonably maintain that he is the perpetrator or accomplice of an offense, that he can hide, leave or escape from the place[,]” and “when the person after being summoned to appear . . . does not do that, and his presence is necessary during the investigation or knowledge of an infringement. . . .”
[This warrant o]rdains the arrest against CRISTIAN STARLING AGUASVIVAS aka MOMON and FRAN AGUASVIVAS aka EL COJO, according to the request filed by the licentiate FELIX SANCHEZ, Deputy Prosecutor of Judicial District of Peravia . . . .
(quoting Dom. Rep. Code Crim. P. arts. 224, 225).
Aguasvivas points out that the warrant botches his name -- entirely omitting his first name (“Cristian“) and in its place using only a misspelling of his middle name (“Estarling” instead of “Starling“) -- though the version translated to English inexplicably gets it right (and the difference is not a simple matter of translation). But extradition law discourages reliance on mere technicalities to impede the joint efforts of the treaty parties to extradite. See Fernandez, 268 U.S. at 312 (“Form is not to be insisted upon beyond the requirements of safety and
The Supreme Court has previously found that an arrest warrant was invalid when it used an entirely incorrect first name (“James” versus “Vandy M.“). See West v. Cabell, 153 U.S. 78, 85 (1894) (“[A] warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him.“). Here, however, the reasonable inference from the warrant‘s misspelling is that the police thought Aguasvivas‘s middle name was his first name, and then spelled that name wrong. See Gero v. Henault, 740 F.2d 78, 83 (1st Cir. 1984) (upholding a warrant that listed the defendant‘s real name and alias, but in reverse order, noting that it was clear that the police knew that the defendant used both names). This is a far cry from an arrest warrant that mistakes the identity of the party sought. So although we view
the mistranslation of the warrant as troubling, it was not error for the magistrate to rely on the warrant despite the misspelling of Aguasvivas‘s name in the original, Spanish version.12
b.
The bigger problem arises from the omission in the extradition request of any indictment or the like. To be more precise, such a document was not simply omitted -- it does not exist at all, as the parties agree that the Dominican prosecutor has yet to seek an indictment (called an “acusación” in the Dominican Republic). Nor does any party dispute that the criminal code of the Dominican Republic provides for the initiation of an extradition request when a person against whom an indictment has been presented is in a foreign country. See
This all brings us back to the text of the treaty. See United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (“In construing a treaty . . . we first look to its terms to determine its meaning.“); Restatement (Fourth) of Foreign Relations Law § 306 (Am. Law Inst. 2018) (“A treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of its object and purpose.“). If the treaty‘s text is ambiguous and reasonably accommodates the United States’ construction, we defer to that construction whether or not it is a construction we would adopt de novo. See Kin-Hong, 110 F.3d at 110 (“[E]xtradition treaties, unlike criminal statutes, are to be construed liberally in favor of enforcement . . .“); Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933) (“[I]f a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other
The United States’ textual argument focuses on the phrase “the document setting forth the charges.” Most persons familiar with criminal procedure would read that phrase as referring to either an indictment, a criminal complaint, or in some circumstances in this country, an information. In this case, the United States does not argue that the Dominican extradition request includes any one of these three types of documents. Rather, the United States argues that the warrant can do “double duty,” serving as both the warrant and as “the document setting forth the charges.” As to why we should regard the warrant as “the document setting forth the charges,” the United States offers a single argument:
The Dominican arrest warrant . . . satisfies the plain terms of Article 7.3(b) of the Treaty. It describes the criminal acts that Aguasvivas is alleged to have committed and lists the Dominican statutes that Aguasvivas is alleged to have violated. It therefore qualifies as “the document setting forth the charges against the person sought.”
We see six textual problems with this argument.
Second, this is a treaty between two countries that both customarily employ warrants to arrest and separate documents to
Third, a warrant, unlike an indictment, fails to indicate that the subject is wanted for prosecution.16 Under this treaty, the difference matters. Article 1 of the Extradition Treaty states that it is intended to provide for extradition of people “sought by the Requesting Party from the Requested Party for prosecution” (emphasis added). Article 7.3 itself describes the required documentation as support for “a request for extradition of a person who is sought for prosecution.” This plain language expressly describing the role played by “the document setting forth the charges” reinforces the notion that Article 7 of the Treaty does not call for the extradition of a person wanted for questioning regarding a possible but not yet charged prosecution.
Fourth, we examine the text of this treaty against the backdrop of judicial interpretations of other treaties. Long
The treaty in this case, though, adds to the list of required documents a requirement that was missing in those earlier treaties: “the document setting forth the charges.” For that reason, our agreement with the holdings in Emami and Assarsson provides no succor for the United States in this case. Indeed, given that the State Department is presumably familiar with the various treaty forms that it has adopted and with circuit law
This reasoning moves even closer to home when we consider the fifth textual problem with the government‘s argument, this Treaty‘s departure from the language in the pre-existing, 1909 extradition treaty with the Dominican Republic. That treaty, like the treaties at issue in Assarsson and Emami, also had no requirement to include the document setting forth the charges. Extradition Convention art. XI, Dom. Rep.-U.S., June 19, 1909, 36 Stat. 2468 (“If, however, the fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and of the depositions upon which such warrant may have been issued, shall be produced . . .“). When, subsequent to Assarsson and Emami, the Dominican Republic and the United States added to the list of required documents “the document setting forth the charges,” a strong inference arose supporting the conclusion that this treaty requires more than an arrest warrant describing a suspected but yet-to-be charged crime.
Finally, this inference only grows stronger when we compare this treaty‘s supporting document requirements to those present in other recent treaties. After Assarsson and Emami and
As best we can tell, no other United States extradition treaty uses the same relevant language as does the treaty with the
We have also considered the arguments of our dissenting colleague, which rely heavily on cases construing the interstate extradition statute, or cases construing other treaties. We find
Our dissenting colleague also speculates that “an order of detention” refers always and only to something that compels the detention of a person who has not been indicted. Hence, reasons our colleague, there could never be an extradition based on an order of detention if an indictment were required. The United States itself advances no such argument. Nor does it point to any basis for such an unsupported (and unasserted) assumption that orders of detention can never be accompanied by indictments.
In sum, we find that the text of the treaty, even when viewed through a lens of liberal construction favoring extradition, will not accommodate the United States’ interpretation. Most notably, that construction would render superfluous a relatively bespoke requirement added to this treaty,
A final note on the charges: At oral argument, counsel for the United States acknowledged that because of the rule of specialty, any offense not listed in the document satisfying the requirement established in Article 7.3(b) cannot be certified for extradition. See United States v. Tse, 135 F.3d 200, 204 (1st Cir. 1998) (“The doctrine of specialty is grounded in international comity and generally requires that a requesting country not prosecute a defendant for offenses other than those for which extradition was granted.“); United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995) (“The principle of specialty . . . generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other.” (internal citations omitted)). Here, the arrest warrant does not list Article 379 of the Dominican Code, which criminalizes a form of robbery. Article 379 is included in the extradition request, however, and the magistrate certified it for extradition. Certification and Committal for Extradition at 3, In re Extradition of Cristian Starling Aguasvivas, No. 17-mj-04218 (D. Mass. Dec. 11, 2018), ECF No. 78. The government avers that the difference between the offense listed in the extradition request and that listed in the arrest warrant (Article 309) amounts to no more than
C.
Finally, Aguasvivas argues that there is not probable cause to believe he committed the crimes alleged by the Dominican Republic. We address this issue only because it is likely to arise again if the Dominican prosecutor intends at some point to file and supply “the document setting forth the charges.” See, e.g., Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990) (addressing issues “raised by the parties which [were] likely to recur“). On habeas review of a magistrate‘s certification of extraditability, we look only to whether the magistrate‘s determination of probable cause was supported by “any evidence.” Kin-Hong, 110 F.3d at 116; Fernandez, 268 U.S. at 312 (authorizing the habeas court to review “whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty“). “This circuit has interpreted the ‘any evidence’ standard quite literally, conducting a fairly deferential review of the magistrate‘s findings.” Kin-Hong, 110
Under that standard, the district court‘s analysis was largely correct: The magistrate certainly had at least some evidence to conclude that Aguasvivas might have been guilty of shooting at the agents who attempted to arrest him. Firstly, Dominican prosecutor Feliz Sanchez Arias reported that the two surviving officers identified a photograph of Aguasvivas as the shooter.17 And secondly, a video of the shooting on YouTube -- while it does not actually show Aguasvivas shooting anyone -- does not show that he could not have done so. A medical report states that the bullets entered Ubri in the front, while the video plainly
Of course, there is also a considerable amount of conflicting evidence. The autopsy report seems to assume that someone other than Aguasvivas must have committed the shooting, states that Ubri was killed by a “[d]istant” wound,18 and suggests that the third shot entered Ubri in the “anterior region” of his left arm. Additionally, the government has admitted that Aguasvivas was handcuffed (albeit with hands in front) while the shots were fired.
As both the district court and Aguasvivas have pointed out, this circuit noted in 1997 that its light-touch approach to the “any evidence” standard may have been out of keeping with the more searching approaches of other circuits, Kin-Hong, 110 F.3d at 117 (“Recently, some other appellate courts, while retaining the traditional formulation, have apparently engaged in a more rigorous review of the evidence presented before the judicial officer, thus raising questions about the actual content of the ‘any evidence’ standard.“), and that the scope of habeas review had broadened somewhat in other ways since the “any evidence” standard was set out in Fernandez, id. (“[H]abeas corpus in other
III.
For the foregoing reasons, the decision of the district court is affirmed as to the insufficiency of the documentation to support an extradition request under Article 7 of the treaty and affirmed as to the sufficiency of the probable cause determination, but reversed as to Aguasvivas‘s collateral estoppel claim. We remand for further proceedings consistent with this decision.
-- Concurring and Dissenting Opinion Follows --
The extradition treaty at stake states that:
2. All extradition requests shall be supported by:
- (a) documents, statements, or other types of information that describe the identity, nationality, and probable location of the person sought;
- (b) information describing the facts of the offense or offenses and the procedural history of the case;
- (c) the text of the law or laws describing the offense or offenses for which extradition is requested and the applicable penalty or penalties; . . .
- (e) the documents, statements, or other types of information specified in either paragraph 3 or paragraph 4 of this Article, as applicable.
3. In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall also be supported by:
(a) a copy of the warrant or order of arrest or detention issued by a judge or other competent authority; - (b) a copy of the document setting forth the charges against the person sought; and
- (c) such information as would provide a reasonable basis to believe that the person sought committed the offense or offenses for which extradition is requested.
Extradition Treaty (“Extradition Treaty“), Dom. Rep.-U.S., art. 7, §§ 2-3, Jan. 12, 2015, T.I.A.S. No. 16-1215.
The majority holds that the requirement that the Dominican Republic provide “the document setting forth the charges” under Article 7, § 3(b) has not been met. It makes six textual arguments -- most of which were not made by Aguasvivas -- to justify rejecting the government‘s position that a warrant can be used as “the document setting forth the charges.” In doing so, the majority concludes that a warrant cannot do “double duty,” fulfilling the requirements of Article 7, § 3(a) and (b) simultaneously.
I disagree with the result the majority reaches, which is based on incorrect and singular reasoning. The plain language of the Extradition Treaty does not require two documents, and the warrant is sufficient to meet the terms of § 3(b). The
I would hold that the treaty unambiguously permits a warrant to serve as “the document setting forth the charges” as long as it adequately describes the charges against the accused. And even if the treaty were ambiguous, the canons favoring a “liberal construction” of treaty obligations coupled with the agreement between the United States and the Dominican Republic that the provided documents fulfill the terms of the treaty produce an inescapable conclusion that a warrant alone can satisfy both treaty requirements. I would also hold that the warrant provided in this case adequately stated the charges against Aguasvivas and serves as “the document setting forth the charges” against him under Article 7, § 3(b).
I.
I begin by reviewing the documents provided in support of extradition. Though the majority does not dwell on the particulars of the documents, a review of their text is essential to determining whether the Dominican government has adequately set forth charges against Aguasvivas. Both the Dominican Republic and the United States have provided documents supporting Aguasvivas‘s extradition.
The Dominican embassy‘s extradition request states that the Dominican Republic seeks Aguasvivas “to respond to the charges
against him of Association of malefactors, robbery, murder and illegal possession of firearms.” The embassy clarifies that Aguasvivas “is charged with the violation of Articles 265, 266, 379, 383, 295 and 304 of the Dominican Criminal Code and Article 39, Paragraph III of Law 36 about Trade and Possession of Firearms.” The extradition request also attaches the affidavit of Dominican Prosecutor Feliz Sanchez Arias and a copy of the warrant authorizing Aguasvivas‘s arrest.
Prosecutor Sanchez Arias‘s affidavit sets forth the accusations against Aguasvivas and provides background on Dominican criminal procedure. Prosecutor Sanchez Arias states that he is “in charge of the criminal case that accuses Aguasvivas . . . of crimes of association of malefactors, robbery, murder and illegal possession of firearms . . . sanctioned by the articles 265, 266, 379, 383, 295 and 304 of the Dominican Criminal Code and article 39, paragraph III of Law 36 about Trade and Possession of Firearms.” He reiterates that Aguasvivas “is accused of” and “must respond for the violation of . . . the Dominican Criminal Code, and . . . Law 36 about Trade and Possession of Firearms.” Based on these accusations, an arrest warrant was issued. According to Sanchez Arias, the warrant remains “in force, valid and enforceable.” Though he has not sought an indictment, Sanchez Arias explains that in his experience, “[i]f the accused has escaped, the prosecutor asks the judge for a warrant for his
The arrest warrant, which was issued by a judge of the Dominican Republic authorized to issue such warrants, begins by describing the accusations against Aguasvivas. The warrant specifies that Aguasvivas is sought for arrest because he “disarmed and fired three shots to the agent LORENZO UBRI MONTERO causing his dea[th],” “seriously injured with firearms the agents of the National Directorate for Drug Control,” and “disarmed . . . agents of the National Directorate for Drug Control who were participating in the anti-drug operation.” As a result of these acts, Aguasvivas is “accused of violation of the articles 265, 266, 295, 304 and 309 of the Dominican Criminal Code and article 39 of Law 36 on Trade and Possession of Firearms.” The judge states that based on the evidence presented by the prosecutors, “the accused are the perpetrators of the accusation, and that they can run away, so it is appropriate to grant the authorization for their arrest.” The warrant authorizes the detention of Aguasvivas for no more than
The United States has provided both a complaint seeking Aguasvivas‘s extradition and a statement from the Office of the Legal Advisor describing the United States’ position on the proper interpretation of the Extradition Treaty. The complaint filed by the U.S. Attorney both lays out the government‘s treaty obligations to the Dominican Republic and confirms that “[a]ccording to the information provided by the Government of the Dominican Republic, AGUASVIVAS is charged with murder, aggravated robbery, conspiracy, and illegal firearm possession.” The U.S. Attorney also states that Aguasvivas “would be likely to flee” if faced with a warrant for his arrest.
The Office of the Legal Adviser states that “Article 7.3(b) supplements Article 7.3(a) by ensuring that the Requesting State provide . . . the document that identifies the offenses with which the accused is charged and sought for prosecution.” (Emphasis added.) “There is no requirement in Article 7, or elsewhere in the Treaty, that the requesting country provide separate documents to satisfy the requirements of Article 7.3(a) and (b).” The United States also explains that it has “reviewed the Arrest Warrant for Cristian Aguasvivas” and concluded that it “satisfies both Article 7.3(a) and Article 7.3(b) of the Treaty.”
When interpreting a treaty, we must begin “with the text of the treaty and the context in which the written words are used.” E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)). If a treaty is unambiguous, it must be applied as written. See id. at 534-35; United States v. Li, 206 F.3d 56, 63 (1st Cir. 2000) (relying on non-textual sources “[t]o the extent that the treaties’ terms are ambiguous“). However, “treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” E. Airlines, Inc., 499 U.S. at 535 (quoting Air Fr. v. Saks, 470 U.S. 392, 396 (1985)). When a treaty contains ambiguities, canons of treaty interpretation require us to both give a treaty the “more liberal construction” when more than one is possible and to construe an extradition treaty in favor of enforcement. Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933). Interpretive canons also require us to reject defenses to extradition that hinge on technicalities. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925). Finally, “[a]lthough not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982);
A.
I first consider whether the plain language of Article 7 permits the use of a single document to fulfill the requirements of both Article 7, § 3(a) and (b). The plain text of the treaty does not state that one document cannot meet both requirements. The requirements are listed separately to clarify that both requirements must be met, but that does not mean that two documents are required. As long as the document provided meets the terms of each individual requirement, the treaty terms are satisfied.
The majority‘s arguments to the contrary are unconvincing. The majority argues that because both the United States and the Dominican Republic use “warrants to arrest and separate documents to charge,” Article 7, § 3(b) must refer to something different than an arrest warrant. Again, I disagree. The particulars of how the Dominican Republic brings formal charges
The majority also argues that the United States’ construction of the treaty would render § 3(b) superfluous because a warrant will always describe the offenses charged. This argument is unpersuasive. Neither government agrees that the United States’ reading of § 3(a) would make § 3(b) superfluous. There is nothing in the record to indicate that Dominican warrants always contain a description of the offenses charged, and it is not our role to investigate Dominican procedure. See Grin v. Shine, 187 U.S. 181, 184-85 (1902). Further, the United States argues that foreign arrest warrants do not always set forth “any or all of the charges.” This warrant meets the terms of § 3(b), but not all warrants necessarily will.
Looking to Article 7, §§ 2 and 3 together does not change the analysis. The majority argues that because § 2 says that an extradition request must include information describing facts of the offense and the text of the relevant laws, § 3(b), which requires a copy of the document setting forth the charges, would necessarily be rendered surplus if the documents provided here were adequate under the treaty. This argument was not made by
The portions of § 2 the majority says would be redundant with § 3 list the information that must be included in an extradition request, without any reference to what specific documents should be included. Extradition Treaty, art. 7, § 2(a)-(c). In contrast, Article 7, § 3 makes clear that the request must include copies of the warrant and the appropriate document setting forth the charges rather than just, for example, a letter from the embassy containing all the information described in § 2(a)-(c). Thus, in cases where there is an indictment setting forth the charges, § 3(b) says that a copy of the indictment should be included in the extradition request. And where the document setting forth the charges is a warrant, a copy of the warrant must be included. There is no surplusage here. And even if there were some redundancy, that would provide “only a clue” to the correct interpretation of a text because “[s]ometimes the better overall reading of the [text] contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019).
The majority‘s reference to
Next, this dissent evaluates whether Article 7, § 3(b), which requires the requesting country to provide “the document setting forth the charges,” mandates that the requesting country provide an indictment, complaint, or other separate charging instrument.20
Black‘s Law Dictionary defines a “charge” as a “formal accusation of an offense as a preliminary step to prosecution.” Black‘s Law Dictionary (11th ed. 2019). This definition contradicts the majority‘s suggested reading that charges should be brought by means of an “indictment or the like.” Instead, any document, including an arrest warrant, which details the crimes and acts the defendant is accused of committing and moves towards a prosecution can set forth charges under § 3(b).
The statute governing interstate extradition and caselaw discussing that statute also indicate that “charges” should be
Caselaw buttresses the conclusion that a person may be “charged” with an offense even if no formal charging document has issued. The Supreme Court has held that the word “charged” in the Extradition Clause of the Constitution “ought to be understood” “in the broad and practical sense.” Pierce v. Creecy, 210 U.S. 387, 402 (1908); see also id. at 404-05 (explaining that “the word ‘charged’ was used in its broad signification to cover any proceeding which a state might see fit to adopt, by which a formal accusation was made against an alleged criminal” and thus that a document which “unmistakably describe[d] every element of the crime” was sufficient to show that “the accused was substantially charged with [a] crime.” (quoting In re Strauss, 197 U.S. at 331)); id. at 403 (noting that for interstate extradition, there is no requirement of “a good indictment, or even an indictment of any kind” because extradition “requires nothing more than a charge of crime“). Specifically, the Supreme Court has held in the context
Our sister circuits have similarly construed the term “charged” broadly in extradition treaties. See In re Assarsson, 635 F.2d 1237, 1242 (7th Cir. 1980) (explaining that treaty requirement that individual be “charged” was “used in the generic sense only to indicate ‘accused‘“); In re Assarsson, 687 F.2d 1157, 1160, 1163 n.13 (8th Cir. 1982) (holding that treaty which applied only to those “charged with or convicted” of an offense did not condition extradition on the existence of formal charges); Sacirbey v. Guccione, 589 F.3d 52, 67 (2d Cir. 2009) (“[W]e interpret these provisions to mean that the proof required under the Treaty to establish that an individual has been ‘charged’ with a crime is a valid arrest warrant and the evidence submitted in
The cases relied upon by the majority further support the conclusion that a warrant may serve as a document “setting forth the charges.” In Assarsson, a man was sought for extradition by the Swedish government. 635 F.2d at 1239. Under the terms of the treaty, Sweden could seek extradition of those who had been “charged with or convicted of” a list of offenses specified in the treaty. Id. at 1242. Assarsson argued that he had not been “charged with” a crime because no formal charges had been brought against him. See id. As in the instant case, the treaty specified a list of documents required to support an extradition request. Id. at 1243 n.7. The required documents included a “copy of the warrant of arrest or other order of detention issued by the competent authority of the requesting State,” “a precise statement of the criminal act with which the person sought is charged,” and “an authenticated copy of the texts of the applicable laws of the requesting State.” Id. The Seventh Circuit concluded that the warrant was sufficient to show that Assarsson had been “charged”
The majority attempts to distinguish Assarsson by explaining that the treaty at issue required a warrant and a statement of the “criminal act . . . charged,” while the treaty at issue here requires a warrant and “the document setting forth the charges.” The majority argues that “[w]hen, subsequent to Assarsson . . . [the treating parties] added to the list of required documents ‘the document setting forth the charges,’ a strong inference arose supporting the conclusion that this treaty requires more than an arrest warrant.” This argument does not hold. The majority makes too much of the modest differences in
The majority also relies on Emami. In Emami, the German government sought to extradite Reza Emami for “detention for investigation.” 834 F.2d at 1446. Formal charges had not been filed against Emami. Instead, the German government had issued an arrest warrant for the purpose of detaining and interrogating Emami. Id. at 1447. Emami first argued that he could not be extradited before the filing of a formal public charge because the treaty applied only to persons “who have been charged with an offense or are wanted by the other Contracting Party for the enforcement of a judicially pronounced penalty or detention order.” Id. at 1448 (emphasis added). Citing Assarsson, the court rejected this notion, reasoning that the word “charged” was used to distinguish between those accused and those already convicted of an offense. Id. Further, the word “charged” had been “used as
Emami next argued that he was not properly sought “for prosecution” because Germany had not shown an adequate intent to prosecute him. Id. at 1449. He contended that Germany had not shown a commitment to prosecute because it had requested him “for purposes of ‘detention for investigation‘” and had not filed charges against him. Id. at 1448. The court rejected this argument, explaining that it had “reservations against deciding questions of German criminal procedure” and holding that Germany‘s statement in its extradition request that Emami was wanted for prosecution was sufficient to show that Emami was wanted for prosecution under the terms of the treaty. Id. at 1449.
The majority‘s decision also flatly contradicts the Emami court‘s holding that a foreign government‘s statement of intent to prosecute is sufficient to show that a person is sought “for prosecution.” As in Emami, the Extradition Treaty provides for the extradition of people sought “for prosecution” and the Dominican Republic seeks to interrogate the suspect before the filing of formal charges. See id. at 1448. Like in Emami, the Dominican Republic has given clear signals that it intends to prosecute Aguasvivas: the Dominican State Department specified that it wishes to extradite Aguasvivas “to respond to the charges against him,” and the prosecutor “in charge of the criminal case that accuses” Aguasvivas has concluded that “[c]onsidering the evidence that exists on this case, [he] has the conviction that if [Aguasvivas] is extradited to the Dominican Republic, he shall be sentenced in criminal trial by the crimes he is charged.”
The additional arguments made by the majority do not support its conclusion that the warrant does not adequately set forth the charges against Aguasvivas.
The majority‘s fifth argument -- also not made by Aguasvivas -- is that because the Extradition Treaty was drafted after Emami and Assarsson, and the 1909 Extradition Treaty between the Dominican Republic and the United States required only a warrant, the addition of a requirement that the requesting party provide the document setting forth the charges was meant “to call for the production of more than just a warrant.” I disagree with this reasoning. First, as explained above, Emami and Assarsson counseled the State Department that if it wanted an extradition treaty to require a formal charging instrument, then it should explicitly add such a requirement to the treaty. When, as here, a later treaty does not contain such a requirement, then we should not read it in. Second, the 2015 treaty replaced the entire text of the 1909 treaty with different text very similar to a significant number of extradition treaties between the United
The majority‘s sixth argument -- also not made by Aguasvivas -- is unconvincing. The majority argues that because the Austrian and Israeli extradition treaties explicitly allow for extradition when there is no “charging document,” then we should not read the Dominican extradition treaty to also allow for extradition absent a charging document. This argument ignores critical differences in language between those treaties and the treaty at issue. The Austrian and Israeli treaties specifically require a “charging document” if one exists rather than a more general “document setting forth the charges.” Extradition Treaty, Austria-U.S., art. 10, § 3(b), Jan. 8, 1998, T.I.A.S. No. 12,916; Protocol Amending the Convention between the United States of America and Israel of December 10, 1962, Isr.-U.S., art. 6, July
Finally, in addition to the document setting forth the charges, the treaty requires “a copy of the warrant or order of arrest or detention issued by a judge or other competent authority.” Extradition Treaty, art. 7, § 3(a) (emphasis added). While the warrant provided in this case is nominally an arrest warrant, the warrant could also be understood as a warrant of detention. As explained in the warrant, the Dominican Code of Criminal Procedure allows a judge to issue warrants to detain individuals for questioning. The record in this case shows that Prosecutor Sanchez Arias seeks to detain Aguasvivas to interview him before bringing formal charges, as Dominican procedure allows, and the warrant only authorizes the prosecutor to detain Aguasvivas for twenty-four hours for questioning. If the treaty were read to require an indictment or complaint, that sequence would never be permitted, despite the treaty‘s provision allowing for extradition on a warrant or order of detention.21
The arrest warrant for Aguasvivas adequately specifies the laws Aguasvivas is accused of violating, describes the criminal acts that Aguasvivas is charged with performing, and lists the evidence supporting these charges. Thus, it is sufficient to set forth the charges under the terms of the treaty.
C.
A finding that the treaty is ambiguous would lead me to the same result. When a treaty is ambiguous, the parties’ reasonable interpretation is essentially binding on the court. See Sumitomo Shoji Am., Inc., 457 U.S. at 185 (“When the parties to a treaty both agree as to the meaning of a treaty provision,
The United States and the Dominican Republic agree that the warrant can fulfill the requirements of § 3(b). The State Department opines that “Article 7(3)(b) supplements Article 7(3)(a) by ensuring that the Requesting State provide not only the document that functions as a ‘warrant or order of arrest or detention issued by a judge or other competent authority,’ but also the document that identifies the offenses with which the accused is charged and sought for prosecution in the Requesting State.” However, “[t]here is no requirement . . . that the requesting country provide separate documents.” A representative from the Office of the Legal Advisor represented that he had “reviewed the Arrest Warrant for Cristian Aguasvivas submitted by the Dominican Republic in this extradition request, and concluded that it ‘satisfie[d] both Article 7.3(a) and Article 7.3(b) of the Treaty.‘” The extradition complaint filed in the district court
The Dominican Republic has also made clear that they believe Aguasvivas has been charged with several crimes and that they have provided sufficient documentation for his extradition. The communication from the Dominican embassy specifies that it requests Aguasvivas‘s extradition so that he can “respond to the charges against him of Association of malefactors, robbery, murder, and illegal possession of firearms.” Prosecutor Sanchez Arias declares that the “[t]reaty does not state as a requirement for . . . extradition, the prior existence of an indictment against the person required in extradition.” He explained that an indictment had not been obtained because “the Prosecutor wants to know the version of the accused of how and why he perpetrated the facts imputed to him . . . prior [to] filing an indictment against him.” The warrant also states on its face that Aguasvivas is “accused of violat[ing]” several articles of the Dominican Criminal Code.
In the face of this agreement, if the treaty is ambiguous, we must defer to the parties and hold that the warrant fulfills the requirements of Article 7, § 3(b).
The majority approach is forbidden by Supreme Court precedent in several respects. First, the Supreme Court has cautioned against expanding the treaty obligations of other countries. See Grin, 187 U.S. at 191 (“The treaty is undoubtedly obligatory upon both powers, and, if Congress should prescribe additional formalities than those required by the treaty, it might become the subject of complaint by the Russian government and of further negotiations.“). Instead, extradition treaties should be “faithfully observed, and interpreted with a view to fulfil our just obligations to other powers.” Id. at 184. Insisting that the Dominican Republic provide a charging document when the treaty does not explicitly include such a requirement puts an impermissible burden on the Dominican Republic and will stand in the way of the United States’ faithful adherence to its treaty obligations, both to the Dominican Republic and the many other countries whose treaties similarly require “document[s] setting forth the charges.”
Second, courts should refrain from imposing standards that cause the validity of an extradition request to turn on the technical form of the request. See Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (“[W]hile . . . a man is not to be sent from the country merely upon demand or surmise, . . . if there is presented, even in somewhat untechnical form according to our ideas, such
Cases from our sister circuits expand on these notions. In Assarsson, the court explained that courts should “refus[e] to review compliance with foreign criminal procedure . . . based on respect for the sovereignty of other nations.” 635 F.2d at 1244. “This respect is embodied in the procedural framework of international extradition, which ‘gives to the demanding country
These holdings do not forbid us from inquiring into the sufficiency of the documents provided by the Dominican Republic. But the majority‘s interpretation of the treaty will unnecessarily require courts to evaluate whether the documents presented include a proper charging document rather than accepting the representations of the Dominican Republic that the defendant has been charged with several crimes.22 The majority‘s holding also
IV.
The majority‘s decision, in my view, harms the United States in the conduct of foreign affairs and is in conflict with the views of other circuits. And because the treaty language at issue in this case is nearly identical to the language in a large number of extradition treaties with Caribbean and South American countries, the majority opinion will have repercussions far beyond this case. Though the Dominican Republic may file an acusación and attempt to extradite Aguasvivas again, in all likelihood Aguasvivas will never be found to permit extradition to face charges in the Dominican Republic.
I respectfully dissent.
Notes
Under the heading “Criminal Procedure in the Dominican Republic,” the prosecutor‘s affidavit reports that:
If the accused has escaped, the prosecutor asks the judge for a warrant for his arrest. As soon as the suspect is arrested, the prosecutor in charge of prosecuting the case, will interview him in the presence of his defense counsel; if the accused can not afford a defense lawyer, the State will provide one. Within 48 hours, the accused is presented by the prosecutor to the investigating judge, in order that he decides on the measure of coercion that must be applied to the accused.
The prosecutor decides whether or not to bring charges according to the merits of the evidence available.
The affidavit is not perfectly clear on the identification, given that it first identifies a photograph as the photograph of Cristian Aguasvivas and then states that the eyewitnesses were qualified to identify Aguasvivas because they saw him shoot Ubri but never explicitly that they identified the person in the photo as the shooter. However, the chain of logic seems to extend to that point: The agents saw the shooting, and believed Aguasvivas -- the man in the photograph -- committed it.
Additionally, evidence at an extradition hearing “may consist of hearsay, even entirely of hearsay.” Kin-Hong, 110 F.3d at 120 (citing Collins v. Loisel, 259 U.S. 309, 317 (1922)). Aguasvivas argues that these statements are “not even hearsay” because “there is no declarant.” It is true that the affidavit is not clear on whether the officers made the identification directly to Sanchez Arias or whether he learned of the identification through someone else. But the fact that the exact chain of knowledge is not identified does not change the fact that this is competent hearsay evidence admissible at an extradition hearing.