UNITED STATES of America, Plaintiff-Appellee, v. Jose DUARTE-ACERO, Defendant-Appellant.
No. 98-5756.
United States Court of Appeals, Eleventh Circuit.
April 13, 2000.
208 F.3d 1282
Marc Eagelson, Michael P. Sullivan, Adalberto Jordan, Miami, FL, for Plaintiff-Appellee.
Before TJOFLAT, Circuit Judge, FAY, Senior Circuit Judge, and HANCOCK*, Senior District Judge.
TJOFLAT, Circuit Judge:
This is an interlocutory appeal of a district court decision denying appellant‘s mo-
I.
The indictment in this case charges appellant and three others (Rene Benitez, Armando Benitez, and Jairo David Valencia) with five offenses,3 all occurring on February 10, 1982, in Cartagena, Colombia. On that day, the four men abducted two DEA agents (who were investigating drug trafficking between Colombia and the United States) from their hotel room and, after leaving the city, shot the agents and left them for dead.4 The agents survived the shooting and returned to the United States.
On August 28, 1997, DEA agents, using a ruse, lured appellant across the Colombian border into Quito, Equador, and arrested him.5 The next day, appellant appeared before the district court in the Southern District of Florida and entered a not guilty plea. On April 28, 1998, appellant moved the court to dismiss the indictment. He argued that because he had been convicted in Colombia for the conduct alleged in the indictment, the double jeopardy provision of the ICCPR barred his prosecution. That provision, Article 14(7), states that ‘‘[n]o one shall be liable to be
II.
We have jurisdiction under
III.
A.
Article 2(1) of the ICCPR provides that a state that becomes party to the treaty ‘‘undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.‘’ Among those rights a state ‘‘undertakes to respect and ensure‘’ are the right to life, see art. 6; freedom from torture, see art. 7; the right to a fair trial, see art. 14; freedom of opinion and expression, see art. 19; and freedom of association, see art. 22.8 On September 8, 1992, the United States, following the advice and consent of the Senate,9 became a party to the ICCPR, at which time the treaty became, coexistent with the United States Constitution and federal statutes, the supreme law of the land.10
B.
Naturally, our first focus in interpreting the ICCPR is its plain language. See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 1493, 113 L.Ed.2d 569 (1991) (‘‘When interpreting a treaty, we ‘begin with the text of the treaty and the context in which the written words are used.’ ‘‘) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988)). If the language of the treaty is clear and unambiguоus, as with any exercise in statutory construction, our analysis ends there and we apply the words of the treaty as written. See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 135, 109 S.Ct. 1676, 1684, 104 L.Ed.2d 113 (1989) (‘‘[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty.‘‘) (quoting In re The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71, 5 L.Ed. 191 (1821)).
Finally, although treaties are to be liberally construed, Air France v. Saks, 470 U.S. 392, 396, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985),
[t]his does not mean ... that treaty provisions are construed broadly. Rather, this ‘‘liberal‘’ approach to treaty interpretation merely reflects ... thе willingness of courts, when interpreting difficult or ambiguous treaty provisions, to ‘‘look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.‘’
Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 638-39 (5th Cir.1994) (quoting Eastern Airlines, Inc., 499 U.S. at 535); see also Washington v. Washington State Commercial Passenger Fishing Vessel Ass‘n, 443 U.S. 658, 675, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823 (1979) (‘‘[I]t is the
C.
The clear language of the ICCPR manifests that its provisions are to govern the relationship between an individual and his state, and, not as appellant argues, the relationship between sovereigns. In other words, the ICCPR is concerned with conduct that takes places within a state party; its provisions do ‘‘not purport to regulate affairs between nations.‘’ Benitez, 28 F.Supp.2d at 1363. Reminders of this framework are replete within the ICCPR. For instance, Article 2(1), quoted above, provides that the obligations of the state under the treaty extend to ‘‘all individuals within its territory and subject to its jurisdiction.‘’ Further examples of the intranational character and jurisdictional limitations of the ICCPR‘s guarantees are found in Article 12 (‘‘Everyone lawfully within the territory of a Stаte shall, within that territory, have the right to liberty of movement ... ‘‘); Article 13 (‘‘Any alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law. ... ‘‘); Article 23(1) (‘‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.‘‘); Article 27 (‘‘[i]n those States in which ethnic, religious or linguistic minorities exist ... ‘‘); and Article 50 (‘‘The provisions of the present Covenant shall extend to all parts of federal Statеs without any limitations or exceptions.‘‘).
With respect to Article 14(7), in particular, the clear language itself circumscribes the reach of the double jeopardy provision. First, the provision bars a successive prosecution only when the second criminal proceeding is for the same ‘‘offence.‘’ A broader formulation would have used the word ‘‘act,‘’ ‘‘action,‘’ or ‘‘conduct.‘’ See Marc J. Bossuyt, Guide to the ‘‘Travaux Preparatoires‘’ of the International Covenant on Civil and Political Rights 316 (1987) (hereinafter Bossuyt) (noting that thе drafters of Article 14(7) specifically chose the word ‘‘offence‘’ rather than ‘‘action‘’ although ‘‘[s]ome representatives would have preferred the adoption of a wider formula prohibiting successive trials, not only for the same ‘offence,’ but also for the same ‘actions’ ‘‘).13 The bar to reprosecution for the ‘‘same offense‘’ is a concept with which jurists in this country are intimately familiar. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
Second, the bar against successive prosecutions in Article 14(7) is only for those individuals who have ‘‘already been finally convicted or acquitted in accordance with the law and penal procedure of each country.‘’ art. 14(7) (emphasis added). Thus, a successive prosecution is barred only when the accused is tried under the same law and criminal procedure. Intuitively, this would only happen when the second prosecution takes place in the same country. Clearly, then, a state party could try an individual under its law even though the individual has already been prosecuted for the same conduct under another party state‘s criminal code. See Bossuyt, supra, at 316 (noting that the delegates recognized that Article 14(7), as written, allowed a ‘‘State ... to try, in accordance with its laws, persons already sentenced for the same offence by the courts of another
Finally, and ‘‘[m]ost importantly perhaps,‘’ Benitez, 28 F.Supp.2d at 1364, the HRC, the body charged under the ICCPR with monitoring its implementation, has spoken on this issue and has endorsed the view that ‘‘article 14, paragraph 7 ... does not guarantee non bis in idem with regard to the national jurisdictions of two or more States.‘’15 In A.P. v. Italy, an Italian citizen filed a communication with the HRC claiming that the Italian government, in violation of Article 14(7), punished him for an offense for which he had already been tried and convicted in Switzerland. Italy claimed that there was no violation of the ICCPR‘s double jeopardy provision since this provision did not protect the principle of internatiоnal non bis in idem. Italy further argued that Article 14(7) ‘‘must be understood as referring exclusively to the relationships between judicial decisions of a single State and not between those of different States.‘’ Id. at para. 5.3. The HRC agreed with Italy and concluded that Article 14(7) ‘‘prohibits double jeopardy only with regard to an offence adjudicated within a given State.‘’ Id. at para. 7.3. Appellant fails to explain why we should depart from the HRC‘s revealing ‘‘view.‘’ Cf. Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459, 464, 145 L.Ed.2d 370 (1999) (Breyer, J., dissenting in denial of certiorari) (citing a view of the HRC and finding it helpful even though it was not binding); Maria v. McElroy, 68 F.Supp.2d 206, 232 (E.D.N.Y.1999) (‘‘The Human Rights Committee‘s General Comments
IV.
For the forgoing reasons, we conclude that Article 14(7) of the ICCPR cannot be invoked defensively to avoid a prosecution in the courts of the United States despite an earlier prosecution for the same offense in the courts of another state party.
AFFIRMED.
[APPENDIX] A.P. v. ITALY
Communication No. 204/1986
Decision adopted on 2 November 1987 at the thirty-first session
Alleged victim: The author
State party concerned: Italy
Date of communication: 16 January 1986 (date of initial letter)
The Human Rights Committee, established under article 28 of the Intеrnational Covenant on Civil and Political Rights, Meeting on 2 November 1987, Adopts the following:
Decision on admissibility
1. The author of the communication (initial letter dated 16 January 1986 and a further letter of 7 September 1987) is A.P., an Italian citizen born on 12 March 1940 in Tunisia, at present residing in France. He claims to be the victim of a violation of article 14, paragraph 7, of the Covenant by the Italian Government. He is represented by counsel.
2.1. The author states that he was convicted on 27 September 1979 by the Criminal Court of Lugano, Switzerland, for complicity in the crime of conspiring to exchange currency notes amounting to the sum of 297,650,000 lire, which was the ransom paid for the release of a person who had been kidnapped in Italy in 1978. He was sentenced to two years’ imprisonment, which he duly served. He was subsequently expelled from Switzerland.
2.2. It is claimed that the Italian Government, in violation of the principle of non bis in idem, is now seeking to punish the author for the same offence as that for which he had already been convicted in Switzerland. He was thus indicted by an Italian court in 1981 (after which he apparently left Italy for France) and on 7 March 1983 the Milan Court of Appeal convicted him in absentia. On 11 January 1985, the Second Division of the Court of Cassation in Rome upheld the conviction and sentenced him to four years’ imprisonment and a fine of 2 million lire.
2.3. The author invokes article 14, paragraph 7, of the Covenant, which provides:
‘‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.‘’
He further rejects the Italian Government‘s interpretation of this provision as being applicable only with regard to judicial decisions of the same State and not with regard to decisions of different States.
2.4. The author further indicates that in 1984 the Italian Government addressed an extradition request to the Government of France, but that the Paris Court of Appeal, by judgement of 13 November 1985, denied extradition because it would violate French ordre public to make the author suffer two terms of imprisonment based on the samе facts.
3. The Committee has ascertained that the same matter has not been submitted to another procedure of international investigation or settlement.
4. By its decision of 19 March 1986, the Working Group of the Human Rights
5.1. In its submission under rule 91, dated 24 June 1987, the State party provides copies of the court orders and decisions in the author‘s case and objects to the admissibility of the communicatiоn, which it considers unfounded (sans fondement). In particular, the State party argues that Mr. P. was tried for two different offences in Switzerland and in Italy.
5.2. The State party first provides an outline of the factual situation:
‘‘A few months after the kidnapping of M.G.M., in Milan on 25 May 1978, and the payment by her family of 1,850 million lire, attempts were made to ‘launder’ sums deriving from the crime. In particular, on 4 September 1978, a person later identified as J.M.F. attempted to convert into a bank cheque the sum of 4,735,000 lire at the Milan branch of the Banca Nazionale del Lavoro; on 6 September 1978, the same individual negotiated the sum of 120 million lire at several banks in Lugano (Switzerland); on 12 September 1978, again at different banks in Lugano, J.M.F., this time accompanied by the author changed 100 million lire into Swiss francs. On that occasion, the Swiss police intervened and J.M.F. absconded, while A.P. was arrested. Some time later, a further sum of 57,650,000 lire was found hidden in a rented car that had been used by J.M.F. and A.P. to travel to Switzerland.‘’
5.3. The State party then rejects the author‘s contention that article 14, paragraph 7, of the Covenant protects the principle of ‘‘international non bis in idem.‘’ In the opinion of the State party, article 14, paragraph 7, must be understood as referring exclusively to the relationships between judicial decisions of a single State and not between those of different States.
6. In his comments, dated 7 September 1987, the author contends that his allegations with respect to a violation of article 14, paragraph 7, are well founded and argues that article 14, paragraph 7, of the Covenant should be interpreted broadly, so as to aрply to judicial decisions of different States.
7.1. Before considering any claims contained in a communication, the Human Rights Committee shall, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
7.2. The Committee notes that the State party does not claim that the communication is inadmissible under article 5, paragraph 2, of the Optional Protocol. With regard to article 5, paragraph 2(a), the Committee observes that the matter complained of by A.P. has not been submitted to another procedure of international investigation or settlement. With regard to article 5, paragraph 2(b), the State party has not claimed that there are domestic remedies which the author could still pursue in his case.
7.3. With regard to the admissibility of the communication under article 3 of the Optional Protocol, the Committee has examined the State party‘s objection that the communication is incompatible with the provisions of the Covenant, since article 14, paragraph 7, of the Covenant, which the author invokes, does not guarantee non bis in idem with regard to the national jurisdictions of two or more States. The Committee observes that this provision prohibits double jeopardy only with
8. In the light of the above, the Human Rights Committee concludes that the communication is incompatible with the provisions of the Covenant and thus inadmissible ratione materiae under article 3 of the Optional Protocol.
9. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the State party and the author of the communication.
Notes
Ballard, supra, at 173-74 (footnotes and citations omitted).The general rule of international law is that, in the absence of a treaty, sovereign states are not obligated to enforce each other‘s penal judgments.... This means that if an act constitutes an offense within a state‘s jurisdiction, the state has a right to prosecute the act regardless of whether other states might already have done so. Article 14(7) of the [ICCPR] preserves this important limitation on international double jeopardy protection, specifying that ‘‘no one shall be liable to bе tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.‘’ Other international documents, as well as the Fifth Amendment of the U.S. Constitution, also recognize this caveat. This rule is not only recognized by the U.S. Supreme Court, but is also reflected within the U.S. federalist structure as the ‘‘dual sovereignty‘’ doctrine.