United States v. Guevara , 443 F. App'x 641 ( 2011 )

10-3986-cr
United States v. Guevara
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28th day of October, two thousand eleven.
PRESENT: GERARD E. LYNCH,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 10-3986-cr
BIENVENIDO GUEVARA,
Defendant-Appellant.
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FOR APPELLANT: JESSE M. SIEGEL, New York, New York.
FOR APPELLEE: CHRISTIAN R. EVERDELL (Brent S. Wible, on the brief),
Assistant United States Attorneys for Preet Bharara, United
States Attorney for the Southern District of New York, New
York, New York.
Appeal from the United States District Court for the Southern District of New
York (Richard M. Berman, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal is DISMISSED in part and the judgment of the district
court is AFFIRMED in part.
Defendant-appellant Bienvenido Guevara was extradited from the Dominican
Republic to face trial on an indictment that charges him with conspiracy to import a
controlled substance into the United States, in violation of 21 U.S.C. § 963, and
conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846. He seeks
interlocutory review of an order of the United States District Court for the Southern
District of New York (Richard M. Berman, Judge) denying his motion to dismiss that
indictment. We assume the parties’ familiarity with the underlying facts and procedural
history of the case.
Our jurisdiction over this case is premised on an exception to the general rule that
appellate review may not be had “until there has been a decision by the District Court that
ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989) (internal
quotation marks omitted). Pursuant to that rule, an appeal in a criminal case may usually
be taken only after the defendant has been convicted and sentenced. Id. Under the
collateral order doctrine, however, a limited number of district court orders are
immediately appealable, because they “finally determine claims of right separable from,
and collateral to, rights asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate consideration be deferred until the
whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
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(1949). Although Guevara raises several claims in this appeal, we may consider only
those that fall within this narrow exception to the final judgment rule.
Guevara first argues that the district court was required to dismiss the indictment,
because to prosecute him for the conduct outlined therein would necessarily violate the
rule of specialty. Pursuant to that rule, an extradited defendant may be prosecuted only
on the charges for which the surrendering state granted extradition. See United States v.
Campbell, 300 F.3d 202, 210 (2d Cir. 2002). Guevara maintains that, despite
prosecutors’ assurances to Dominican officials that he would be prosecuted for offenses
“completely different” from and “not related” to the acts for which he was prosecuted in
that country, the charges set out in the U.S. indictment are necessarily related to the 1,400
kilogram cocaine seizure that was at the center of the Dominican prosecution.
Guevara’s rule-of-specialty claim does not come within the bounds of the
collateral order doctrine, and we therefore lack appellate jurisdiction over it. In United
States v. Levy, we observed that “unlike protections such as the Double Jeopardy Clause,
the doctrine of specialty does not guarantee a right not to be tried, but rather a right to be
protected from a court’s authority.” 947 F.2d 1032, 1034 (2d Cir. 1991). The rule of
specialty is thus a limitation on the district court’s jurisdiction, challenges to which may
be fully vindicated on appeal from a final judgment. Id. Contrary to Guevara’s assertion,
the accuracy of this description does not vary depending on the sending jurisdiction’s
reasons for imposing the charging limitations that it did. Accordingly, we conclude, as
we did in Levy, that Guevara’s rule-of-specialty claim is not reviewable interlocutorily
but must instead await a final resolution of his case in the district court.
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Guevara also claims that to permit him to be prosecuted under this indictment
would violate non bis in idem, a principle of international law that is analogous to the
Fifth Amendment’s prohibition on double jeopardy. In Abney v. United States, 431 U.S.
651 (1977), the Supreme Court held that the denial of a motion to dismiss on double
jeopardy grounds is a collateral order that may be reviewed interlocutorily. As the
government concedes, the logic of Abney is equally applicable to Guevara’s non bis in
idem claim; we therefore conclude that we have jurisdiction to consider it.
The government contends that because the treaty under which Guevara was
extradited does not contain an explicit non bis in idem provision, that principle is simply
inapplicable to this case. We need not address this argument, however, because even if
Guevara were correct that the treaty incorporates the principle by reference, we would
still conclude that the indictment should stand. Guevara argues that Article V of the
treaty, which allows a signatory country to decline extradition due to a “lapse of time or
other lawful cause,” permits either country to enforce its constitutional and other legal
protections on behalf of persons whose extradition is sought. Guevara appears to
concede, as he must, that, under the law of the United States, the Dominican judgment
would not preclude further proceedings in this country. It is well established that the
Double Jeopardy Clause does not bar separate sovereigns from undertaking sequential
prosecutions of the same offense. See Heath v. Alabama, 474 U.S. 82, 93 (1985).
Rather, Guevara maintains that principles of double jeopardy embodied in Dominican law
require dismissal of the indictment. Yet the Dominican Republic’s highest court
reviewed the U.S. indictment in light of the prior proceedings in that country and
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concluded that Dominican law would permit Guevara to be extradited and tried on at least
some of the allegations set out in that indictment. We decline to question the Dominican
judiciary’s informed conclusion that Dominican law would permit him to stand trial here.
As one of our sister circuits has observed, “[A] foreign court’s holding as to what that
country’s criminal law provides should not lightly be second-guessed by an American
court – if it is ever reviewable. And the foreign court’s understanding of the nature of the
American charge is, in truth, inextricably intertwined with its reading of its own law.”
Casey v. Dep’t of State, 980 F.2d 1472, 1477 (D.C. Cir. 1992).
To the extent Guevara argues that language in the Dominican Supreme Court’s
opinion or in the diplomatic note effecting his extradition requires that the charges against
him be pared or that the evidence at trial be limited in some way, the district court’s
rejection of such arguments without prejudice does not constitute a collateral order that
may be immediately appealed. Having concluded that nothing in either American or
Dominican law affords Guevara the right “not to be tried at all,” we lack jurisdiction to
say any more. United States v. Culbertson, 598 F.3d 40, 46 (2d Cir. 2010).
For the foregoing reasons, the judgment of the district court is AFFIRMED to the
extent that it refused to dismiss the indictment based on the principle of non bis in idem.
The appeal is DISMISSED for lack of appellate jurisdiction in all other respects.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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