Lead Opinion
Opinion concurring in part and concurring in the judgment filed by Circuit Judge PILLARD.
Nizar Trabelsi is a Tunisian national convicted in Belgium for a variety of crimes, including attempting to destroy a military base. While Trabelsi was serving his sentence for his convictions in Belgium, a grand jury in the United States indicted Trabelsi with various conspiracy and terrorism offenses. The United States requested that Belgium extradite Trabelsi. Trabelsi challenged that request in Belgium, contending that his extradition would violate the Extradition Treaty Between the United States of America and the Kingdom of Belgium (the “Extradition Treaty” or “Treaty”), Apr. 27,1987, S. Treaty Doc. No. 104-7, in view of the non bis in idem principle. Belgium disagreed and extradited Trabelsi to the United States. Trabelsi renewed his challenge here, moving the District Court to dismiss the indictment for violating the Treaty provision. In opposition, the Government argued that the District Court lacked jurisdiction to review the extradition decision. The District Court concluded that it had jurisdiction to review the decision but denied Trabelsi’s motion on the merits. We conclude that we have jurisdiction to hear this appeal and review Trabelsi’s extradition.
Trabelsi presents four arguments on appeal. First, he argues that the District Court erred in deferring to Belgium’s decision on his double-jeopardy claim. He next contends that, absent this deference, the District Court should not have applied the test articulated in Blockburger v. United States,
Trabelsi’s arguments are unpersuasive. The scope of our review is limited, requiring deference to Belgium’s decision to extradite Trabelsi. This deference creates a rebuttable presumption that Trabelsi’s extradition, and Belgium’s analysis in deciding to extradite him, comports with the terms of the Treaty. See United States v. Campbell,
I.
On September 13, 2001, Trabelsi was watching television at his apartment in Ucle, Belgium when the Belgian police arrived and arrested him. While searching his apartment, the police discovered an Uzi submachine gun and a list of chemicals used to manufacture explosives. The police also searched a restaurant owned by a co-conspirator’s family, and uncovered chemicals that could be used to make explosives. On September 14, 2001, Trabelsi was served with an arrest warrant, charging him with “conspiracy, destruction by explosion, possession of weapons of war, and belonging to a private militia.” J.A. 96. Belgian courts convicted Trabelsi, and on September 30, 2003, he was sentenced to ten years in prison “for, among other things, having attempted to destroy the military base of Kleine-Brogel with explosives, having committed forgery, and having been the instigator of a criminal association formed for the purpose of attacking people and property.” Id.
On April 7, 2006, while Trabelsi was serving his sentence in Belgium, a grand jury in the United States indicted him for various offenses. A superseding indictment (hereinafter, the “indictment”) was issued on November 16, 2007. The indictment charged Trabelsi with conspiracy to kill United States nationals outside of the United States in violation of 18 U.S.C. §§ 2332(b)(2) and 1111(a) (Count 1); conspiracy and attempt to use weapons of mass destruction against nationals of the United States while such nationals were outside of the United States, and against property used by the United States and a department and agency of the United States in violation of 18 U.S.C. §§ 2332a and 2 (Count 2); conspiracy to provide material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. § 2339B (Count 3); and providing material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. §§ 2339B and 2 (Count 4).
The United States requested that Belgium extradite Trabelsi on April 4, 2008, attaching an affidavit from the Department of Justice describing the offenses, and their elements, for which the United States sought to prosecute him. Trabelsi challenged the extradition request in Belgium, arguing that his extradition would violate certain provisions of the Extradition Treaty. Specifically, Trabelsi argued that his extradition would violate Article 5 of the Treaty, which provides that “[ejxtra-dition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested.” S. TReaty Doc. No. 104-7. On November 19, 2008, the Court Chamber of the Court of First Instance of Nivelles held that the United States arrest warrant was enforceable, except as to the overt acts labeled numbers 23, 24, 25, and 26 in the indictment. The Court of Appeals of Brussels affirmed this decision on February 19, 2009. On June 24, 2009, the Belgian Court of Cassation affirmed the Court of Appeals.
The Belgian Minister of Justice, who has final authority over extradition requests, granted the United States’ request on November 23, 2011. The Minister rejected the position that the non bis in idem principle is implicated by Article 5, concluding instead that the narrower offense-based “double jeopardy” principle applies. The
On September 15, 2014, Trabelsi moved to dismiss the indictment for violating the Extradition Treaty. He argued, inter alia, that his extradition violated Article 5 of the Treaty because Belgium had already tried and convicted him “for the offense for which extradition was request ed.” Motion to Dismiss at 9-10 (quoting Extradition Treaty, Article 5).
II.
A.
Neither Trabelsi nor the Government challenges this Court’s authority to decide Trabelsi’s appeal of the denial of his motion to dismiss the indictment. However, “we have an independent obligation to consider the issue” because “there has not yet been a final judgment in the district court.” United States v. Ginyard,
“In the absence of a final judgment, this court generally lacks jurisdiction to hear a challenge to a decision of a district court.” Id. (citations omitted). However, in Abney v. United States, the Supreme Court held that “a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds ... fall[s] within” the collateral order exception to the final-judgment rule.
Because Trabelsi’s challenge does not arise under the Double Jeopardy Clause of the Fifth Amendment, Abney is not precisely on point. However, the logic of Abney is equally applicable here. Tra-belsi challenges his extradition under Article 5 of the Treaty, the prior-prosecution provision. Additionally, Trabelsi has no further procedural steps to avoid trial on the offenses alleged here, and his challenge is collateral to and separate from his guilt of those offenses. Accordingly, we hold that the District Court’s order denying his motion to dismiss the indictment fits within the collateral-order exception, and we have jurisdiction to consider Tra-belsi’s appeal. See Duarbe-Acero,
B.
Although we have jurisdiction to hear this interlocutory appeal, the Government challenges the District Court’s, and our, jurisdiction to review Trabelsi’s extradition at all. In the District Court, the Government argued that Trabelsi lacked standing under the Ker-Frisbie Doctrine. See Ker v. Illinois,
Presently, the Government contends that we lack jurisdiction to review Trabelsi’s extradition because we must defer to Belgium’s decision that the offenses charged in the indictment do not violate Article 5 of the Treaty. Trabelsi submits that we have jurisdiction to review his extradition and owe no deference to Belgium’s decision. We hold that we have jurisdiction to review Belgium’s decision, but that our review is highly deferential. Where an individual has been extradited pursuant to a treaty, we defer to the extradition decision of the extraditing country. In light of this deference, we presume, absent evidence to the contrary, that the extraditing nation has complied with its obligations under the treaty and that the extradition is lawful. See Campbell,
Historically, “[ejxtradition and other forms of rendition were for the benefit of [nation] states.” M. CheRif Bassiouni, INTERNATIONAL EXTRADITION: UNITED STATES Law and PractiCe 3 (5th ed. 2007) (hereinafter Bassiouni, International Extradition). This makes extradition a “sovereign act,” and treaties are not required in order to seek an extradition. Id. at 25. However, extradition by treaty is increasingly common today, see id. at 24-25, and the Treaty was the means by which Belgium extradit
Neither Casey nor Johnson v. Browne,
In Johnson, a U.S. citizen named Charles Browne was convicted of fraud crimes and sentenced to two years’ imprisonment.
The Court reached its conclusion, in part, because “[wjhether the [fraud] crime came within the provision of the treaty was a matter for the decision of the [Canadian] authorities, and such decision was final by the express terms of the treaty itself.” Id. at 316,
This Court has understood Johnson not to mean that the court lacks jurisdiction to review challenges to extradition, but that a U.S. court “must give great deference to the determination of the foreign court in an extradition proceeding.” Casey,
The Second Circuit’s approach in Campbell,
Although Campbell dealt with a specialty claim, its approach is useful here. Tra-belsi contends that his extradition violated Article 5 of the Treaty. The U.S. government’s formal extradition request attached a copy of the indictment and, by affidavit, identified the elements of each offense. Just as the scope of the extradition treaty at issue in Campbell was for Costa Rica to determine, see
This deferential approach means that “we will presume that if [Belgium] does not indicate that an offense specified in the request is excluded from the extradition grant, [Belgium] considers the offense to be a crime for which extradition is permissible.” Campbell,
This presumption is not irrebutta-ble, however. Evidence that might rebut the presumption would include misconduct on the part of the United States in procuring an extradition, see Casey,
The presumption could also be rebutted by a showing that the requested state or party did not apply the correct legal standard adopted in the Treaty. Here, Trabelsi contends that Belgium applied the wrong legal standard to evaluate the protections afforded under Article 5 of the Treaty. He argues that the Treaty’s use of “offenses” requires a comparison of the underlying conduct, submitting that we should follow the Second Circuit’s approach in Sindona v. Grant,
Trabelsi also points to language from Article 2 of the Treaty to suggest that
The legislative history surrounding the Extradition Treaty’s ratification also supports interpreting the Treaty to apply to offenses, not conduct. The Senate Committee on Foreign Relations issued an Executive Report at the time the Treaty was ratified in 1996. In language that parallels Article 5 of the Treaty, the report notes that the Treaty “prohibits extradition if the person sought has been found guilty, convicted, or acquitted in the Requested State for the offense for which extradition is requested.” S. Exec. Rep. No. 104-28 (July 30,1996). The report further explains that “[tjhis paragraph permits extradition ... if the person sought is charged in each Contracting State with different offenses arising out of the same basic transaction.” Id. (emphasis added).
In accordance with both the plain text and legislative history of the Extradition Treaty, Trabelsi would need to show that Belgium failed to compare the offenses with which he was charged in the indictment to the offenses of which he was convicted in Belgium. Not only did the Belgian Court of Appeal individually compare and explain the differences between each U.S. count and the Belgian prosecution, the Belgian Minister of Justice’s decision is to the same effect. The Minister of Justice interpreted the Extradition Treaty to apply to “offenses” rather than “acts” or “conduct.” Considering other treaties with similar language, the Minister concluded that “it is not the facts, but ... the offenses, that have to be identical” in order to deny an extradition request. Min. Justice Dec. at 10. The Minister explained that “[tjhis concept excludes the (same) proof, the (same) evidence or the same material summary of facts that had been used, if applicable, for the purposes of proving the offenses for which the person had previously been prosecuted, sentenced, or acquitted.” Id. at 11. As a result, the Minister determined that “the offenses for which [Trabelsi] was irrevocably sentenced ... do not correspond to the offenses listed [in the indictment] that appear in the arrest warrant on which the U.S. extradition request is based.” Id. Therefore, the Minister concluded that “the conditions and formalities for extradition [were] met,” and granted the extradition request. Id. at 13.
For the reasons discussed, we defer to this decision of the Belgian courts and Minister of Justice that, based on an offense-based analysis, Trabelsi’s extradition comports with Article 5 of the Treaty, since Trabelsi has offered nothing of merit to rebut the presumption. Because Trabel-si’s challenges fail, we need not decide whether the charges in the U.S. indictment and the crimes for which Belgium convicted Trabelsi are identical under Blockbur-ger.
First, both Trabelsi and our concurring colleague read terms into the Treaty that are not there. Ordinarily, Blockburger applies when a defendant raises a challenge under the Double Jeopardy Clause of the U.S. Constitution, but Trabelsi does not and cannot present such a challenge here. Rather, he seeks protection under an agreement between two sovereign nations, and our task is limited. Cf. Sanchez-Llamas v. Oregon,
Second, given the historical context of the Treaty, it is implausible that Article 5 mandates a Blockburger analysis. In 1987, when the Treaty was ratified, the law of double jeopardy under the U.S. Constitution was not settled. For example, Trabelsi urges us to adopt the “same conduct” test, which was articulated by the Second Circuit in 1980 to evaluate a non bis in idem challenge under our extradition treaty with Italy. See Sindona,
Our concurring colleague contends that by not reviewing Belgium’s decision under Blockburger, we are “treating] the Belgian proceedings as a black box.” Concurring Op. at 1193. This is hyperbole. We have examined the extensive Belgian proceedings, supra, at 1184-85, and have confirmed that Belgium granted the U.S. extradition request employing an offense-based analysis, supra, at 1190-91. The con
Third, our deferential approach protects each party’s prerogatives under the Treaty. The United States’ interests were identified in the extradition request, which was accompanied by a complete description of the applicable law of the United States, along with a breakdown of the elements of each offense, which Trabelsi did not, and does not, challenge. See Justice Dep’t. Affidavit in Support of Request for Extradition (Mar. 12, 2008). Belgian authorities, in turn, were not left to guess at how to construe U.S. law. Rather, Belgium’s courts and officials were able to compare the proffered description of U.S. law with their own construction of Belgian law. Indeed, after Trabelsi was extradited and raised the instant challenges, Belgian authorities confirmed by diplomatic note that “any similarity between the United States ease and the Belgian case does not give rise to any bar to his being tried on the charges in th[e] indictment.” Our concurring colleague essentially grants no deference whatsoever to the consistent and repeated conclusions of the Belgian authorities. The lack of deference is especially curious because, according to the concurrence, it is “an easy call” to defer to determinations made by authorities construing their own domestic law, Concurring Op. at 1196. But that is precisely what Belgium did here. Belgium did not consider the merits of the Article 5 challenge solely with reference to U.S. law; it had to construe its own law as well. This is readily apparent in Belgium’s analysis of Belgian Charge Q and U.S. Count 4.
For example, the Belgian Court of Appeal, when reviewing Trabelsi’s conviction and sentence, construed Belgian law to provide that Trabelsi could be convicted of Charge Q simply for being “part of’ an illegal private militia. Court of Appeal, Brussels, June 9, 2004, 59 (Belg.). On review of Trabelsi’s challenge to the extradition request, the same Belgian Court of Appeal ruled that Belgian Charge Q and U.S. Count 4 were “not based on identical legal characterizations” because the U.S. offense requires “having actually supplied resources to a foreign terrorist organization,”
Even outside the context of specialty and dual criminality, U.S. courts will defer to the judgment of foreign courts construing their own laws. See, e,g., United States ex rel. Saroop v. Garcia,
Such deference is appropriate, moreover, in view of the process that Belgium accorded to Trabelsi’s extradition challenge. Supra, at 1184-35. Our concurring colleague casts doubt on the Belgian proceedings because, purportedly, “Belgium has fulfilled its interest in this case.” Concurring Op. at 1195. But we have no reason to suppose that because Trabelsi served his Belgian sentence, Belgian authorities subjected the extradition request to lighter scrutiny than was warranted; the double-jeopardy principle itself is worth protecting. See Restatement (Thied) of THE FOREIGN RELATIONS LAW OF THE UNITED States § 476 cmt. c (Am Law Inst. 1987) (“The principle that a person should not be subject to double jeopardy is common to legal systems generally, and in many countries is constitutionally mandated.”). The record contains nothing to support the concurrence’s speculation.
Accordingly, we affirm the order denying Trabelsi’s motion to dismiss the indictment and have no occasion to reach the question of whether dismissal would be an appropriate remedy.
So ordered.
Notes
. Trabelsi also argued that his extradition violated Articles 15 and 6 of the Treaty, but those are not at issue in this interlocutory appeal. See Appellant Br. at 10.
. See Holder v. Humanitarian Law Project,
Concurrence Opinion
concurring in part and concurring in the judgment:
I am in accord with much of Judge Wilkins’ fine opinion. I agree that we have jurisdiction to review the Article 5 claim, and that the treaty codifies an offense-based rather than fact-based prior-prosecution test.
I cannot endorse the degree of deference that the majority accords Belgium’s conclusion that the U.S. indictment did not charge Trabelsi with any of the same offenses for which he had already been prosecuted and punished. Under the banner of deference, the majority forgoes application of the only offense-based test any party has credibly suggested — the “same-elements” analysis associated with Blockburger v. United States,
Recognizing that we do not review the question de novo but accord deference to the due consideration and reasonable conclusions of the Belgian authorities, I would not employ quite so fully deferential an approach. It is our duty to look through the underlying proceedings to confirm that the correct legal standard — presumptively, Blockburger — was reasonably applied. We otherwise risk acceding even when a treaty partner, in all good faith, correctly states but misapplies a treaty’s legal test and invites successive prosecution for the same offenses in violation of a treaty’s guaran
I.
My colleagues believe that maintaining comity with our treaty partner requires us to defer to Belgium’s application of Article 5.1, too, defer to the Belgian decision, and explain below why I therefore vote to affirm. But, for at least five reasons, I disagree with the majority’s resort to a form of deference that does not even confirm that the requisite analysis was reasonably performed.
First, we cannot unquestioningly accept Belgium’s application of Article 5 because we have a constitutional obligation to interpret and apply treaties as the law of the land, and, as the majority acknowledges, the meaning of Article 5 is fully susceptible of judicial analysis. Id. at 1186-87. It is our duty under the Supremacy Clause to apply treaty law just as we are bound to apply a federal statute or the Constitution itself. U.S. Const. Art. VI Cl. 2; see United States v. Rauscher,
Second, the majority’s deferential approach inappropriately shifts the burden of persuasion by failing even to require a court to verify that the requisite legal analysis was reasonably performed by the foreign authorities. A defendant ordinarily need only “set out a prima facie case that the second indictment charges him with the same offense for which he has already been convicted,” at which point “the burden switches to the government to demonstrate, by a preponderance of the evidence, that the two indictments charged separate offenses.” United States v. Doyle,
Third, affording heightened deference to Belgium’s application of Article 5 would be especially anomalous in this case, given our two nations’ differing domestic law on prior-prosecution bars. To the extent that I can discern, the prior-prosecution bar in Belgium’s national law appears to attach to facts and not to offenses, and it does not involve differentiation of elements. See T. Vander Beken, “Belgium, concurrent national and international criminal jurisdiction and the principle ‘ne bis in idem,’” Revue Internationale de Droit Penal, Vo. 73 (2002-2003), available at https://www. cairn.info/revue-internationale-de-droit-penal-2002-3-page-811.htm#pa3 (“As far as Belgian judgments are concerned, Belgium attaches the ne bis in idem effect to facts, not to offences.”); see generally Bas-siouni, International ExtRadition Law and PRACTICE 751 (5th ed. 2007) (“The distinction between same offense and same facts
Fourth, Belgium has fulfilled its interest in this case. Trabelsi is a Tunisian, not a Belgian national. The Belgian government had a powerful interest in the apprehension and prosecution of an al Qaeda operative at work within its borders. Belgium accordingly tried, convicted, sentenced and imprisoned Trabelsi to the full extent of Belgian law, and retained him until he had served his sentence there to the satisfaction of the Belgian state. By the time Belgium responded to the U.S. extradition request, the Belgian sovereign interest was at its low ebb. Far from expecting uncommon deference, Belgian authorities most likely were inclined to defer to the United States in an effort to facilitate extradition, in which event deference to Belgium is rather circular.
Fifth, the majority’s highly deferential approach is not supported by on-point or in-Circuit precedent. The majority correctly does not treat Belgium’s sign-off on the extradition as conclusive of the Article 5 question. Our review to enforce individual rights under a treaty is compatible with the comity due to a sovereign treaty partner. See generally Olympic Airways v. Husain,
The doctrine of specialty provides that “extradited persons, once returned to the requesting country, may be tried only for those offenses for which extradition was granted by the requested country.” Zhenli Ye Gon v. Holt,
The very foundation of specialty is international comity; the same is not true of prior-prosecution bars. The specialty doctrine encourages international cooperation in the extradition system by giving assurance that, when a country gives up persons for extradition only for specified purposes or on certain conditions, those terms will not be flouted. See Van Cauwen-berghe,
The majority invokes dual-criminality cases as well in support of its rule of deference. The doctrine of dual criminality “restricts the offenses for which a fugitive may be extradited to those that are criminal in both” the requesting and requested state. Zhenli Ye Gon,
Deference to a treaty partner’s understanding of its own law for that purpose in that context makes sense for reasons quite similar to those that support deference in the specialty setting: Dual criminality is effectively a two-gate obstacle, with each country the keeper of its own gate; only when both are open can the extradition proceed. See generally Restatement (Third) of Foreign Relations Law § 476(l)(c). It is an easy call that the requested country is the authority on the content of its own domestic criminal law, holding the key to the gate it uniquely guards. Cf. United States v. Garavito-Garcia,
This case arises in a different posture and does not raise the same comity con
I thus cannot join the majority’s reliance on what I view as an excessive degree of deference to the outcome of another country’s legal process, by which the majority effectively sidesteps its acknowledged duty to confirm that Belgium made the requisite inquiry.
II.
The record in this case confirms the value of a more searching review. For the most part, the Belgian reviewing bodies appear to have been of the view that, regardless of whether the American charges were legally distinct from the Belgian charges under a Blockburger-type analysis, the United States endeavored to prosecute Trabelsi for a factually broader terrorist conspiracy extending beyond the plot to bomb Kleine-Brogel for which he had already been convicted, and that the United States charged Trabelsi with providing material support to al Qaeda apart from the material support in Belgium for which he had already been successfully prosecuted. See, e.g., J.A. 121-22, 544-46, 611-12. Thus, had the district court not performed an independent Blockburger analysis, there might have been some doubt whether a U.S. prosecution focused on Kleine-Brogel and events in Belgium would have been authorized under the Belgians’ own understanding of how the treaty applies.
Unlike the Belgian authorities, the district court focused on whether the two prosecutions involve legally distinct offense elements, rather than offenses comprised of the same legal elements but distinguishable by the elements’ application to separate factual occurrences. The district court distinguished the three U.S. conspiracy charges on the ground that they require proof of agreement not required in the Belgian counts, whereas the Belgian prosecutions turned on proof of attempt or instigation that the U.S. charges do not require. See generally United States v. Felix,
The district court did not actually complete an elements-based Blockburger analysis, however, with regard to Count IV (Providing Material Support and Resources to a Foreign Terrorist Organization), despite acknowledging that it presented “a closer question” than the other three counts because “both underlying statutes criminalize providing support to banned organizations.” J.A. 763. To be sure, as the district court noted, Count IV requires proof that the organization to which the defendant provided material support is a U.S.-designated foreign terrorist organization, while Belgian Charge
Consistent with the ordinary deference owed to the legal determinations of any treaty partner, U.S. courts must at the very least satisfy ourselves that relevant offenses were compared and found to be different under the treaty’s legal standard. With respect to the first three counts of the U.S. indictment, that is and was easily done. Each is . legally distinct from the Belgian charges under the elements-based analysis the district court recounted. And each is also factually distinct from those charges to the extent that, as the Belgian courts repeatedly underscored, the United States charged Trabelsi with criminal acts encompassing but much broader than the Belgium-specific crimes entailed by the plot against Kleine-Brogel, for which he had already been convicted and punished. Blockburger is satisfied on either ground: Like the fact-based ne bis in idem approach, Blockburger permits a subsequent prosecution under an indictment listing identical legal elements so long as it charges a different set of facts. That much is obvious. A charge of a bank robbery that took place in 2015 does not bar a subsequent charge of a different bank robbery in 2016. But Blockburger additionally authorizes subsequent prosecution arising from the same conduct or transaction (the 2015 bank robbery undergirding both prosecutions) where a purely fact-based approach would not, so long as the legal elements of the subsequent charge are sufficiently distinct. See Felix,
The district court’s opinion leads us up a bit of a blind alley, however, by confining itself to an elements-based analysis and then failing to demonstrate how Count IV and Charge Q each requires an element not required by the other. The opinion thus makes the Belgian and American material-support counts appear to charge the same offense. Count IV (Providing Material Support and Resources to Foreign Terrorist Organization) seems materially identical to Charge Q (“contributfing] to or [being] part of a private militia or any other organizations of individuals whose purpose is to use force”). J.A. 149; see also J.A. 388 (somewhat different translation). Neither the courts nor executive officials, whether in Belgium or in the United States, did an analysis differentiating the elements of those two offenses. As-I read the relevant statutes and the record explanations, Count IV is simply a narrower version of Belgian Charge Q. Any organization that qualifies as a foreign terrorist organization under U.S. law would also qualify as an “organization of individuals whose purpose is to use force” under Belgian law. See 8 U.S.C. §§ 1189(a)(1) (defining foreign terrorist organization); id. § 1182(a)(3)(B)(iii) (defining terrorist activity); 22 U.S.C. § 2656f(d)(2) (defining terrorism); J.A. 183 (Brussels Court of Appeals describing the prohibition on private militias as “[t]argeted in particular [at] organizations whose purpose is to use force, even if the use thereof is a means for achieving the organization’s political objectives,” and stating that “a potential organization of individuals that tries to
Even if Count IV and Charge Q charged the same legal elements, however, Count IV is not barred for the more basic reason that — as the Belgians reasonably explained — at least some version of Count TV rests on factually distinct acts of material support for terrorism that were not the basis of Trabelsi’s Charge Q prosecution in Belgium. For instance, the United States alleges that, beginning in 2000, Trabelsi met with conspirators in Europe and “ma[de] preparations to travel to Afghanistan to train for jihad.” J.A. 33. Trabelsi eventually “carried cash and computers, which he had brought from Europe, to Afghanistan.” Id. at 34. And, according to the U.S. indictment, Trabelsi received training and funding from al Qaeda in Afghanistan and Pakistan. Id. at 34-35. The Belgian authorities determined that, not only had Trabelsi not been prosecuted in Belgium for that conduct, it had not even been known to them at the time. See id. at 544. A material support prosecution resting on such evidence charges a distinct offense under Article 5.
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The extraordinary deference the majority adopts is unnecessary to the resolution of this case. Because the United States seeks to prosecute Trabelsi for conspiracy rather than substantive offenses in Counts I, II and II, those U.S. charges are not barred by Article 5. To the extent that the United States proves in support of Count IV different acts of material support from those that supported the Belgian prosecution, that U.S. charge is also not barred.
For these reasons, I concur in part and concur in the judgment.