United States v. Eric Gardiner ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 29, 2008
THOMAS K. KAHN
No. 06-15154
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-20893-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC GARDINER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 29, 2008)
Before ANDERSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Eric Gardiner appeals his convictions for conspiracy to import cocaine, 21
U.S.C. §§ 952(a), 963, and conspiracy to commit money laundering, 18 U.S.C.
§ 1956(a)(1)(B)(i)-(ii), (h). Gardiner argues that the district court should have
dismissed his indictment because the government allegedly circumvented an
extradition treaty between the United States and the Dominican Republic. We
affirm.
I. BACKGROUND
Gardiner, a Bahamian national who was under investigation by the Drug
Enforcement Administration for his distribution of narcotics, entered the
Dominican Republic using a false passport. The use of a false passport violated
the laws of the Dominican Republic, but Gardiner was allowed to enter the country
based on coordination between drug enforcement officials in that country and the
United States. When he learned of Gardiner’s location, Special Agent Manuel
Recio of the United States spoke with Colonel Pablo Jimenez Sanchez of the
Dominican Republic about obtaining custody of Gardiner.
Eleven days after Gardiner entered the Dominican Republic, a grand jury in
the Southern District of Florida returned an indictment that charged Gardiner with
23 separate offenses related to the drug conspiracy. Agent Recio contacted
Interpol to address extradition procedures, but he did not discuss the extradition
treaty between the United States and the Dominican Republic. Interpol explained
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to the agent that each country had its own rules governing extradition.
The Drug Enforcement Administration did not intend to rely on extradition
procedures. According to its agents, the Dominican Republic could expel any non-
citizen so long as the United State had a valid arrest warrant. Agent Recio
submitted a “red notice application” to Interpol that included a “Prosecutor’s
Agreement to Extradite.” In the agreement, a federal prosecutor agreed to provide
additional information to the Office of International Affairs of the United States if
the federal government wanted a cooperating country provisionally to arrest
Gardiner pending extradition proceedings; draft an extradition request; and notify
the Office if the prosecutor no longer sought extradition.
Interpol issued a “diffusion notice” that alerted other countries that the
United States had issued a warrant for Gardiner’s arrest. The diffusion notice
stated that the United States would “if possible, formally request provisional arrest
with a view toward extradition in accordance with any applicable extradition
treaty[.]” The diffusion notice also requested that a country give the United States
notice “[i]f, in lieu of extradition, [foreign] authorities can exclude, expel, deport,
or otherwise remove” Gardiner.
After receipt of the diffusion notice, Colonel Sanchez received permission
from the Dominican National Director for Drug Control to expel Gardiner, placed
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Gardiner under arrest, and made arrangements to transfer Gardiner to federal
agents. Two days later, federal agents took custody of Gardiner at the Santo
Domingo airport. The arrest was described by the Dominican authorities as the
product of a successful joint operation with the United States that ended in the
expulsion of an international drug trafficker.
Gardiner moved to dismiss his indictment. Gardiner argued that, when it
employed Interpol procedures for his arrest, the federal government invoked the
extradition treaty between the United States and the Dominican Republic, and he
was entitled to a hearing in a foreign court before his extradition. In an evidentiary
hearing, Agent Recio testified that Colonel Sanchez arrested Gardiner based on the
diffusion notice and did not receive a copy of the Prosecutor’s Agreement. Recio
explained that Colonel Sanchez believed he could not extradite Gardiner because
the Dominican Republic would not consider extradition of a noncitizen.
The district court denied Gardiner’s motion to dismiss. Gardiner reserved
the right to appeal the decision and pleaded guilty to conspiracy to import cocaine
and conspiracy to commit money laundering. The district court sentenced
Gardiner to two concurrent terms of 220 months of imprisonment and concurrent
terms of five and three years of supervised release.
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II. STANDARD OF REVIEW
We review the denial of a motion to dismiss the indictment for abuse of
discretion and we examine related questions of law de novo. United States v.
Noriega, 117 F.3d 1206, 1211 (11th Cir. 1997).
III. DISCUSSION
Gardiner argues, based on the commencement of Interpol extradition
procedures and the language contained in the Prosecutor’s Agreement and the
diffusion notice, that his removal from the Dominican Republic constituted a de
facto extradition. Gardiner argues that the government was required to comply
with the extradition treaty between the United States and the Dominican Republic,
and the failure of the government to grant Gardiner an evidentiary hearing before
extradition entitles him to a dismissal of all charges and release. We disagree.
An extradition treaty often is not the exclusive method by which the United
States can obtain custody of a foreign citizen. A treaty serves to “provide[] a
mechanism which would not otherwise exist, requiring, under certain
circumstances, the [signatory countries] to extradite individuals to the other
country, and establish[es] the procedures to be followed when the Treaty is
invoked.” United States v. Alvarez-Machain, 504 U.S. 668, 664–65, 112 S. Ct.
2188, 2194 (1992). For extradition to be the sole method of transfer, the treaty
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must expressly prohibit any other method. Id. at 666–69, 112 S. Ct. at 2194–96;
Noriega, 117 F.3d at 1213. Absent an express prohibition, even if a formal
extradition has been initiated, a government may obtain custody of a defendant by
other methods, including abduction, expulsion, or surrender by the host country.
Ker v. Illinois, 119 U.S. 436, 438, 442–43, 7 S. Ct. 225, 226, 228–29 (1886).
The district court did not err when it denied Gardiner’s motion to dismiss the
indictment. Gardiner had to establish “by reference to the express language of a
treaty . . . that the United States affirmatively agreed not to seize foreign nationals
from the territory of its treaty partner.” Noriega, 117 F.3d at 1213. Gardiner failed
to establish that the treaty prohibited methods other than extradition to obtain
custody, and the method by which Gardiner was brought into the United States did
not deprive the district court of jurisdiction over Gardiner’s criminal charges.
The denial of Gardiner’s motion to dismiss the indictment is AFFIRMED.
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