United States v. Nizar Trabelsi ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2021 Decided March 25, 2022
No. 20-3028
UNITED STATES OF AMERICA,
APPELLEE
v.
NIZAR TRABELSI, ALSO KNOWN AS NIZAR BEN ABDELAZIZ
TRABELSI, ALSO KNOWN AS ABU QA'QA,
APPELLANT
Consolidated with 21-3009
Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cr-00089-1)
Celia Goetzl, Assistant Federal Public Defender, argued
the cause for appellant. On the briefs were A.J. Kramer,
Federal Public Defender, and Sandra Roland, Assistant Federal
Public Defender. Tony Axam Jr., Assistant Federal Public
Defender, entered an appearance.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman
and Chrisellen R. Kolb, Assistant U.S. Attorneys.
2
Before: WILKINS, RAO and JACKSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
Concurring opinion filed by Circuit Judge WILKINS.
Concurring opinion filed by Circuit Judge RAO.
WILKINS, Circuit Judge: Belgium extradited Nizar
Trabelsi, a Tunisian national, to stand trial in the United States
on terrorism charges in 2013. Eight years later, that trial has
yet to take place. This Court has adjudicated Trabelsi’s claim
once before, affirming the District Court’s denial of his motion
to dismiss the indictment. United States v. Trabelsi, 845 F.3d
1181, 1184 (D.C. Cir. 2017). Then, Trabelsi argued that his
extradition violated the Extradition Treaty between the United
States and Belgium because the U.S. indictment charged the
same offenses for which he was convicted in Belgium. Now,
Trabelsi appeals the District Court’s denial of his motions to
reconsider dismissing the indictment in light of intervening,
and conflicting, Belgian legal developments.
Trabelsi challenges the District Court’s denial of his
motions on three grounds. First, he contends that the Belgian
court decisions and official communications constitute
significant evidence that merit reconsideration of his motion to
dismiss. He argues next that the District Court should have
deferred to the Belgian courts’ recent decisions interpreting his
2011 Extradition Order. And finally, he asserts that the District
Court should have compared the offenses in the U.S.
indictment to the offenses for which he was convicted in
Belgium.

Circuit Judge Jackson was a member of the panel at the time the
case was argued but did not participate in this opinion.
3
The Belgian legal developments Trabelsi invokes do not
constitute significant new evidence that would warrant
disturbing this Court’s 2017 decision. As a result, he has failed
to meet the significantly high burden for departing from the law
of the case. We therefore affirm.
I.
We assume familiarity with the facts of this case, as
recounted in our prior opinion, Trabelsi, 845 F.3d at 1184–85,
and relate them only as relevant to the present appeal. In 2001,
Trabelsi was arrested, indicted, and convicted in Belgium for
attempting to destroy the Kleine-Brogel military base. While
serving a ten-year sentence in Belgium, a grand jury in the
United States indicted Trabelsi on charges of conspiracy to kill
United States nationals outside of the United States; conspiracy
and attempt to use weapons of mass destruction; conspiracy to
provide material support and resources to a foreign terrorist
organization; and providing material support and resources to
a foreign terrorist organization. On April 4, 2008, the United
States issued an extradition request, pursuant to the Extradition
Treaty between the U.S. and Belgium (the “Extradition Treaty”
or “Treaty”).
On November 19, 2008, the Court Chamber of the Court
of First Instance of Nivelles issued an exequatur, or
enforcement order, regarding Trabelsi’s extradition, the first in
a long line of Belgian court decisions. Under Article 5 of the
Treaty, an individual may not be extradited if he has been found
guilty, convicted, or acquitted in the Requested State for the
same offense, known as the non bis in idem (“not twice in the
same”) rule. S. TREATY DOC. NO. 104-7 (1987). The Court of
First Instance found that the arrest warrant was enforceable,
except as to Overt Acts 23, 24, 25, and 26 as referenced in the
4
indictment,1 due to their overlap with the offenses Trabelsi was
convicted of in Belgium. The Brussels Court of Appeal and
the Belgian Court of Cassation, that country’s court of last
resort, both affirmed the Court of First Instance’s decision.
The Belgian Minister of Justice, who represents the
Belgian government in extradition proceedings, issued the
Extradition Order (“Order”) on November 23, 2011. In the
Order, the Minister defined an overt act as “an element (of fact
or factual), an act, a conduct or a transaction which in itself
cannot automatically be qualified as an offense” and concluded
that the United States would not violate Article 5 of the Treaty
by relying on the same “overt acts” or factual elements in
prosecuting distinct offenses from those charged in Belgium.
J.A. 554 (“[T]he offenses for which the person to be extradited
was irrevocably sentenced . . . do not correspond to the offenses
. . . that appear in the arrest warrant on which the U.S.
extradition request is based.”). On review of the Minister’s
decision, the Belgian Council of State denied Trabelsi’s request
1
The Overt Acts are the following: “(23) In or about July 2001, in
Uccle, Brussels, Belgium, Nizar Trabelsi rented an apartment; (24)
In or about July and August 2001, in Belgium, Nizar Trabelsi bought
quantities of chemicals, including acetone, sulfur, nitrate, and
glycerine, to be used in manufacturing a 1,000-kilogram bomb; (25)
In or about August 2001, in Belgium, Nizar Trabelsi traveled at night
with conspirators to scout the Kleine-Brogel Air Force Base—a
facility used by the United States and the United States Department
of the Air Force, and at which United States nationals were present—
as a target for a suicide bomb attack; (26) In or about early September
2001, in the vicinity of Brussels, Belgium, Nizar Trabelsi moved,
and caused to be moved, a quantity of chemicals, including acetone
and sulfur, from Trabelsi’s apartment to a restaurant operated by a
conspirator known to the Grand Jury, after police had visited the
apartment for an apparently innocuous purpose.” J.A. 423.
5
to stay the extradition and similarly concluded that the Overt
Acts were merely constitutive elements of his indictment.
Belgium extradited Trabelsi to the United States on October 3,
2013.
In the United States, Trabelsi moved to dismiss the
indictment, arguing that his extradition violated the Treaty. In
response, the Belgian Embassy in Washington, D.C. issued a
diplomatic note (“First Diplomatic Note” or “Note”),
explaining that the Order “is the decision by the Belgian
government that sets forth the terms of Mr. Trabelsi’s
extradition to the United States” and “makes clear that Mr.
Trabelsi may be tried on all of the charges set out in that
indictment.” J.A. 680. The Note stipulated that the prosecution
was entitled to offer facts related to Overt Acts 23–26, per the
Order. Id. The District Court agreed with the Minister of
Justice over the judicial authorities, denying Trabelsi’s motion
because he had failed to demonstrate that he was prosecuted for
the same offenses in Belgium and the United States. United
States v. Trabelsi, No. 06-89, 2015 WL 13227797, at *1
(D.D.C. Nov. 4, 2015) (“Trabelsi I”). We affirmed the District
Court’s ruling on different grounds, Trabelsi, 845 F.3d at 1184.
(“Trabelsi II”). We articulated a standard under which 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” and found an offense-based
analysis, rather than the Blockburger test, was the appropriate
one to apply. Id. at 1184, 1186. Accordingly, we concluded
that the Extradition Order’s offense-based analysis reasonably
construed the Treaty. Id. at 1190–92.
As his challenge to his extradition played out in the
American courts, Trabelsi continued to pursue relief in
Belgium. These Belgian legal proceedings—particularly four
judicial decisions and various legal filings and other
6
communications—are what give rise to Trabelsi’s current
claims. First, the Court of First Instance rejected Trabelsi’s
requests both to halt the Belgian state from cooperating with
the American authorities and to inform the American courts
that the extradition proceedings violated Article 5 of the Treaty,
due to their inclusion of the four Overt Acts. Trabelsi promptly
appealed. On August 8, 2019, the Brussels Court of Appeal
reversed, finding that the exequatur would not allow for the
United States to prosecute Trabelsi for the four Overt Acts
discussed and, as a practical matter, ordering the Belgian state
to notify the U.S. authorities of its ruling. It stopped short of
ordering Belgium to halt cooperation with the United States.
On November 13, 2019, the Belgian Embassy in
Washington, D.C. issued another diplomatic note (“Second
Diplomatic Note”), explaining that the Court of Appeal’s
August 2019 judgment was contrary to Belgium’s Extradition
Order and “therefore contrary to the clear wording of article 5
of the Treaty.” J.A. 1405. The Second Diplomatic Note
describes the Extradition Order as “the decision by the Belgian
government that sets forth the terms of Mr. Trabelsi’s
extradition to the United States” and asserts “that any similarity
between the United States case and the Belgian case does not
give rise to any bar on his being tried on the charges in that
[American] indictment.” J.A. 1406. Further, the Note states
that under the Treaty, “the Minister of Justice has sole authority
to decide on a foreign extradition request since extradition is
traditionally intergovernmental cooperation.” Id.
Second, on February 26, 2020, the Court of First Instance
ordered the Belgian state to notify the appropriate American
authorities that Trabelsi could not be prosecuted for the four
Overt Acts but denied his request to inform the American
authorities that his prosecution violated the non bis in idem
principle. The Belgian state appealed this judgment.
7
Nevertheless, on March 5, 2020, the Ministry of Justice
complied with that court order, formally notifying the
Department of Justice of the Court of First Instance’s
judgment.
Based on the August 8, 2019 Brussels Court of Appeal
judgment, Trabelsi moved for the District Court to reconsider
its motion to dismiss the indictment and compel compliance
with his view of Article 5 of the Treaty, a view shared by
Belgium’s judicial authority. In March 2020, the District Court
denied the motion. United States v. Trabelsi, No. 06-cr-89,
2020 WL 1236652, at *1 (Mar. 13, 2020) (“Trabelsi III”). The
District Court found that the D.C. Circuit “was aware of the
difference of opinions held by [the] Belgian Minister of Justice
and Belgian judiciary.” Id. at *12. Thus, “Trabelsi cannot
reasonably maintain that the August 8, 2019 and February 26,
2020 decisions made available any new, and previously
unavailable, line of argument.” Id. The Court held that
Trabelsi had offered no evidence to support reconsidering the
Circuit’s interpretation of the Extradition Order. Id. at *13.
Trabelsi timely filed a notice of appeal on March 31, 2020.
Back in Belgium, the conflict between the Belgian
executive and judicial authorities continued. The third of the
intervening Belgian decisions came on May 28, 2020, when the
Brussels Court of First Instance held that the Belgian state did
not have authority to issue the Second Diplomatic Note. The
Minister of Justice appealed that decision.
Fourth and finally, on July 15, 2020, the Brussels Court of
Appeal affirmed the Court of First Instance’s February 2020
judgment, denying Trabelsi’s request to order the Belgian state
to transmit a new diplomatic note to the United States
expressing an opinion that the Extradition Order did not
conform to Article 5. Significantly, the Court remarked:
8
The aforementioned American decisions, and in particular
that of the D.C. Circuit . . . make it clear that the American
Courts are applying their own law and the law of
international relations, that they have full knowledge of the
dissensions between the Belgian Courts and the Belgian
government, that they take into account the Belgian
judicial decisions but that they consider that there is no
reason, by virtue of their own law, over which this Court
does not have the power to substitute its assessment, and
the law of international relations . . . to give priority to
these Belgian judicial decisions over the ministerial order
on extradition, which these decisions do not modify or
cancel and the effects of which they do not suspend.
J.A. 2021 (emphasis omitted). In the final Belgian litigation
development included in the record before us, on July 31, 2020,
the Belgian government filed a response to Trabelsi’s new case
seeking damages from the Belgian government for its failure to
comply with the February 2020 decision.
Trabelsi continued his efforts in the United States. On
November 3, 2020, he urged the District Court to reconsider its
denial of his previous motion to reconsider, given the recent
developments in his Belgian litigation, and to stay the district
court proceedings pending his appeal in Belgium. Because the
District Court no longer had jurisdiction over the matter, given
the March 2020 notice of appeal, Trabelsi moved for an
indicative ruling, pursuant to Federal Rule of Criminal
Procedure 37(a). The District Court granted the stay but, in an
appropriate exercise of discretion under Rule 37(a)(2), reached
and denied Trabelsi’s second motion to reconsider. United
States v. Trabelsi, No. 06-cr-89, 2021 WL 430911, at *1 (Feb.
5, 2021) (“Trabelsi IV”). The Court once again held that the
intervening Belgian decisions and pleadings did not qualify as
9
significant new evidence that would alter its understanding of
the Extradition Order, as set forth in Trabelsi I, II, and III. Id.
at *15.
II.
We review a denial of a motion to reconsider in a civil case
for abuse of discretion, Smalls v. United States, 471 F.3d 186,
191 (D.C. Cir. 2006), and the same standard applies to a denial
of a motion for reconsideration in a criminal case. United
States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014).
However, “[a] district court by definition abuses its discretion
when it makes an error of law.” Koon v. United States, 518
U.S. 81, 100 (1996) (citing Cooter & Gell v. Hartmax Corp.,
496 U.S. 384, 405 (1990)). Thus, because the motion to
reconsider turns on whether the District Court correctly
interpreted the Extradition Treaty, and because we review the
interpretation of treaties de novo, McKesson Corp. v. Islamic
Republic of Iran, 539 F.3d 485, 488 (D.C. Cir. 2008), our
review is effectively de novo. See United States v. Fanfan, 558
F.3d 105, 106–07 (1st Cir. 2009) (de novo review proper where
defendant “charges the district court with misconstruing its
legal authority” on motion for reconsideration).
Jurisdiction is secure over this interlocutory appeal, as it
would be over a double jeopardy claim.2 Under Abney v.
United States, pretrial orders denying a motion to dismiss an
2
The non bis in idem principle resembles double jeopardy but differs
in that it “addresses the possibility of repeated prosecutions for the
same conduct in different legal systems, whereas double jeopardy
generally refers to repeated prosecutions for the same conduct in the
same legal system.” Gregory S. Gordon, Toward an International
Criminal Procedure: Due Process Aspirations and Limitations, 45
COLUM. J. OF TRANSNAT’L L. 635, 687 (2007) (internal quotation
marks and citation omitted).
10
indictment on double jeopardy grounds constitute “final
decisions” for the purposes of 28 U.S.C. § 1291. 431 U.S. 651,
662 (1977) (internal quotation marks omitted). As discussed
in Trabelsi I, however, Abney is not on all fours because
Trabelsi’s claim arises under the Treaty, not under the Double
Jeopardy Clause of the Fifth Amendment. Trabelsi II, 845 F.3d
at 1186. Still, Abney’s reasoning is instructive: Article 5’s non
bis in idem provision mirrors the Constitution’s prohibition of
double jeopardy and Trabelsi’s claim remains collateral to his
conviction. Accordingly, we may appropriately exercise
jurisdiction over Trabelsi’s appeal.
A.
We must first address the threshold question of whether
the law of the case doctrine determines the result in this
subsequent appeal. The District Court and a prior appellate
panel have already decided the question at the core of this case:
whether Trabelsi’s extradition violated Article 5 of the Treaty.
The law of the case doctrine dictates that “[w]hen there are
multiple appeals taken in the course of a single piece of
litigation . . . decisions rendered on the first appeal should not
be revisited on later trips to the appellate court.” Crocker v.
Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995).
Put differently, “the same issue presented a second time in the
same case in the same court should lead to the same result.”
LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en
banc). Reopening an issue is possible, however, if
“extraordinary circumstances” demand it. Id. That may include
an intervening change in the law, a finding that the original
decision was clearly erroneous, or if “significant new evidence,
not earlier obtainable in the exercise of due diligence, has come
to light.” United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993)
(internal quotation marks and citation omitted); see LaShawn
A., 87 F.3d at 1393.
11
Trabelsi relies on the third exception to argue that the
intervening Belgian court decisions, Belgian government
communications, and legal filings constitute “significant new
evidence” that warrant revisiting the propriety of his
extradition under Article 5. This “new evidence” could not
have been obtained earlier, given the timing of the Belgian
litigation. We may therefore evaluate Trabelsi’s claim to
determine whether these developments qualify as significant
new evidence, such that they require breaking from the law of
the case.
B.
Even before we reach the question of whether the Belgian
legal developments constitute significant new evidence, we
must examine whether the Belgian state’s or its courts’
interpretation of the Treaty controls. The Belgian courts have
held that Trabelsi may not be prosecuted in the United States
for Overt Acts 23–26 because they are the same as the offenses
charged in Belgium. By contrast, the Belgian state has placed
no limitations on his extradition or prosecution. Whether this
Court owes deference to the Belgian courts may impact our
ability to view the Belgian judgments as “significant new
evidence.”
At the outset, the Extradition Treaty governs these
proceedings. See Factor v. Laubenheimer, 290 U.S. 276, 287
(1933). Like statutory interpretation, the interpretation of a
treaty begins with the text itself. See Medellin v. Texas, 552
U.S. 491, 506 (2008). The Treaty does not vest final authority
over its interpretation to either the Belgian state or the Belgian
courts, but it does intimate whose interpretation controls.
Throughout, the Treaty refers to the power of the “executive
authority” in extradition proceedings. S. TREATY DOC. NO.
12
104-7. It is the executive authority who can refuse to extradite
an individual for offenses that are not illegal under ordinary
criminal law and who can choose the state of extradition if there
are competing requests. Id. at arts. 4(4), 13. Significantly, it is
also the executive authority who “consents to the person’s
detention, trial, or punishment” prior to the extradited person
being detained, tried, or punished abroad. Id. at art. 15(1).
Nowhere does the Treaty refer to the Belgian courts’ role in
extradition proceedings. Its emphasis on the executive
authority suggests the Belgian state has the final say over the
Treaty’s application in an extradition order.
Despite the Treaty’s focus on the executive, it is true that
American courts have urged deference to foreign courts’
holdings in extradition proceedings. In Johnson v. Browne, the
Supreme Court held that whether a crime was an extraditable
offense under the relevant treaty was a matter for the Canadian
judicial authorities (the extraditing country) to decide. 205
U.S. 309, 316 (1907). This Court later interpreted Johnson to
mean that “an American court must give great deference to the
determination of the foreign court in an extradition
proceeding.” Casey v. Dep’t of State, 980 F.2d 1472, 1477
(D.C. Cir. 1992). It further held that the foreign court’s holding
on “what that country’s criminal law provides should not
lightly be second-guessed by an American court.” Id. But see
Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S.
Ct. 1865, 1869 (2018) (holding that a federal court should
respectfully consider a foreign government’s statements “but is
not bound to accord conclusive effect to” them).
Yet, these cases did not concern a conflicting legal
interpretation between a country’s executive and its judicial
authorities. And under the act of state doctrine, American
courts are prohibited from questioning the validity of a foreign
sovereign power’s public acts committed within its own
13
territory. World Wide Mins., Ltd. v. Republic of Kazakhstan,
296 F.3d 1154, 1164 (D.C. Cir. 2002). The doctrine applies if
“the relief sought or the defense interposed would [require] a
court in the United States to declare invalid the official act of a
foreign sovereign performed within” its territory. Id. (quoting
W.S. Kirkpatrick & Co., Inc. v. Env’t Tectonics Corp., 493 U.S.
400, 405 (1990) (alteration in original and internal quotation
marks omitted)).
In the context of extradition proceedings, courts have
refrained from finding extradition orders issued by the state
executive invalid under the act of state doctrine. Take, for
example, United States v. Knowles, in which the defendant
challenged his extradition as unenforceable because the
Supreme Court of the Bahamas had withdrawn its approval of
the extradition until it deemed all legal processes in his case
complete. 390 F. App’x 915, 917 (11th Cir. 2010) (per
curiam). The court dismissed the relevance of the Bahamian
court’s order under the act of state doctrine because the
Bahamian Ministry of Foreign Affairs had consented to the
appellant’s extradition. Id. at 928. It thus deferred to the
executive authority over the judiciary’s interpretation of the
Extradition Order. Id.; see also Reyes-Vasquez v. U.S. Att’y
Gen., 304 F. App’x 33, 36 (3d Cir. 2008) (per curiam)
(abstaining from declaring the President of the Dominican
Republic’s extradition decree invalid because it was an act of
state). A court will thus “presume that if the extraditing
country does not indicate that an offense specified in the
request is excluded from the extradition grant, the extraditing
country considers the offense to be a crime for which
extradition is permissible.” United States v. Campbell, 300
F.3d 202, 209 (2d Cir. 2002).
This approach accords with the opinion of one of
Trabelsi’s experts, a Belgian professor of law, who explained
14
that “the final decision in terms of extradition is taken solely
by the Government; this is a sovereign act, a political action
taken by an administrative authority.” Expert Op. at 2, D. Ct.
Dkt. 345-4. It also aligns with the goal of maintaining cordial
international relations and international comity in extradition
proceedings. Trabelsi II, 845 F.3d at 1192–93. Even Trabelsi
conceded in the briefing that the decision to extradite an
individual is a political act controlled by the executive, not by
the judiciary. Appellant Br. 8 (“the Minister of Justice makes
the political decision whether to extradite pursuant to the
exequatur”). Under the text of the Treaty and the act of state
doctrine, this Court should defer to the Belgian state’s
Extradition Order and its explanations of it in subsequent
diplomatic notes, rather than to the Belgian courts’
interpretation.
C.
Turning to the legal developments themselves, the Belgian
court decisions, official state communications, and legal filings
in the time since Trabelsi II do not constitute significant new
evidence that would warrant deviating from the law of the case.
Indeed, the disagreement between the Belgian state and its
courts was plain at the time of Trabelsi II but did not impact
our conclusion that Trabelsi’s extradition comported with
Article 5 of the Treaty.
First, the Brussels Court of Appeal’s August 8, 2019
decision adds nothing new to the analysis and merely reiterates
the Belgian court’s view that the exequatur prohibits the
prosecution of the four Overt Acts. To be sure, as Trabelsi
notes, this decision is the first time a Belgian court heard his
case since the issuance of the 2011 Extradition Order. But that
does not bear on the Court of Appeal’s analysis. Indeed, the
Brussels Court of Appeal states that the Extradition Order
15
“could only validly grant the extradition requested by the
United States within the limits of the exequatur . . . but not for
the ‘Overt Acts’” mentioned. J.A. 1320 (emphasis removed).
But it does not assert that the Minister of Justice excluded those
Acts nor that he was compelled to follow the exequatur.
Further, the Court of Appeal’s decision supports this
Court’s assertion in Trabelsi II that the Minister of Justice
abstained from excluding the four Overt Acts. Specifically, the
Court remarked that the Belgian courts interpret Article 5 to
imply a “review of the identity of the fact and not of its
qualification” in determining whether an individual is being
extradited for a previously charged offense. J.A. 1317
(emphasis removed). That review is what led the Court of First
Instance to exclude the four Overt Acts from the exequatur. Id.
But the Court of Appeal went on to remark that “[o]nly the
ministerial extradition order of November 23, 2011 departs
from this consistent interpretation of Article 5 of the
Extradition Convention, arguing that the provision requires an
identity of qualifications.” J.A. 1319. Put differently, the
Court of Appeal recognized the conflicting interpretation of
Article 5 set forth by the Minister of Justice in the Extradition
Order. The Minister of Justice’s interpretation, in turn, is what
this Court relied on in finding that Belgium did not place any
limits on Trabelsi’s extradition. The Belgian government
confirmed that interpretation in its Second Diplomatic Note,
sent on November 13, 2019, which characterized the August
2019 Court of Appeal judgment as contrary to its Extradition
Order and reiterated that there was no bar on Trabelsi’s
extradition. At bottom, the decision does not reflect a change
in the Belgian courts’ or government’s position from those
originally considered in Trabelsi II.
Second, in its February 26, 2020, decision, the Court of
First Instance simply confirmed the Court of Appeal’s
16
judgment and ordered the Belgian government to send a copy
of its decision to the appropriate U.S. authorities. On March 5,
2020, the Belgian Ministry of Justice sent a one-page letter to
the Department of Justice, including the specific language the
Belgian court requested, specifying that Trabelsi’s extradition
did not allow him to be prosecuted for facts set out in the four
Overt Acts. Trabelsi latches on to the March 5 letter, arguing
that it was an act of state because it expressed Belgium’s
official position that the Extradition Order precluded Trabelsi’s
prosecution as to the four Overt Acts. Appellant Br. 22, 40.
That argument strains credulity. The letter does not purport to
stake out Belgium’s official position on the scope of Trabelsi’s
extradition. To the contrary, it opens with the stipulation that
the Court of First Instance “has ordered the Belgian
Government to formally notify its judgment, including the
following wording” before including the relevant excerpt from
the opinion. J.A. 1816. The letter’s language explicitly states
that the Ministry only transmitted the judgment because it was
obligated to do so, not because it represented the Belgian
state’s position. As a result, the letter does not constitute an act
of state, nor does it represent significant new evidence.
Third, as for the May 28, 2020, decision, the Court of First
Instance admonished the Belgian government for sending the
Second Diplomatic Note and challenging the court’s ruling that
Trabelsi’s extradition was limited. But in the fourth relevant
Belgian judicial decision, which Trabelsi avoids wrestling with
in his briefs, the Brussels Court of Appeal on July 15, 2020
refused Trabelsi’s request to order the Belgian state to send a
new diplomatic note conforming its position to the Court’s
rulings. At the end of the day, the Court of Appeal
acknowledged that we were aware that the Belgian courts and
executive had conflicting views on how to interpret the Treaty,
but the Court of Appeal impliedly conceded that it could not
force the American courts to prioritize its interpretation. It
17
further conceded that the Belgian courts’ decisions do not
modify, cancel, or suspend the Extradition Order. Neither of
these decisions support Trabelsi’s proposition that the Belgian
courts or government have altered their positions so drastically
such that they qualify as new evidence sufficient to justify
reconsideration of this Court’s last opinion. If anything, the
July 2020 decision forcefully supports that the Extradition
Order controls.
As such, the two July 2020 pleadings filed by the Belgian
state do not aid Trabelsi’s claims. He argues that these
pleadings diminish the significance of the Second Diplomatic
Note, which, as described above, characterized the August
2019 Court of Appeal judgment as contrary to the Extradition
Order and reiterated the Belgian state’s view that there was no
bar on Trabelsi’s extradition. Trabelsi points to the language
in the Ministry of Justice’s July 15 pleading stating that the
Second Diplomatic Note “was only intended to inform the U.S.
judicial authorities that the [Belgian State] had filed an appeal,”
not to state its official position. J.A. 1968. In doing so, he takes
this sentence out of context and ignores the one that follows,
which stipulates that the diplomatic note “summarizes the
position of the [Belgian State] . . . as well as its point of view
regarding the concept of non bis in idem.” Id. Further, Trabelsi
seizes upon the Minister’s language in the July 31 pleading that
the March 2020 notification to the American authorities “does
not mean that the [Belgian State] would have distanced itself
once again from what was decided by” the February 2020
ruling. J.A. 2072 (internal quotation marks and emphasis
omitted). Here, the Belgian government simply explained that
it was ordered to transmit the March 2020 notice of the Court’s
order to the proper U.S. authorities. Remarking that it would
not distance itself from the Belgian court’s ruling is not the
same as adopting the Belgian court’s position on the
Extradition Order as its own.
18
Trabelsi has selectively picked and chosen phrases from
these documents to argue that this Court must defer to the
Belgian courts’ interpretation of Article 5 and revisit its
decision in Trabelsi II. But none of the intervening decisions,
communications, or pleadings present significant new evidence
or detract from the deference this Court owes to the Belgian
state. As a result, this Court will not depart from the law of the
case and reopen the question of whether the indictment charges
the same offenses as in the Belgian prosecution. The District
Court’s orders denying Trabelsi’s motions to reconsider the
motion to dismiss the indictment are affirmed.
So ordered.
WILKINS, Circuit Judge, concurring: My concurring
colleague raises the question of whether, in the previous
appeal, see United States v. Trabelsi, 845 F.3d 1181 (D.C. Cir.
2017), we should have “first addressed the threshold question
of whether the Treaty conferred a non bis right that Trabelsi
could invoke in the United States after his extradition.” Rao
Concurring Op. at 1. I write separately only to note that the
Government did not make my concurring colleague’s argument
in the prior appeal; instead, it contended that we lacked
jurisdiction to review the extradition determination of
Belgium. Therefore, we did not reach, and the Government
forfeited, any argument that the text of the Treaty does not
confer upon Trabelsi any enforceable non bis rights. See
Sanchez-Llamas v. Oregon, 548 U.S. 331, 356–57 (2006)
(holding that even where a claim arises from an international
treaty, “[t]he consequence of failing to raise a claim for
adjudication at the proper time is generally forfeiture of
that claim”); Breard v. Greene, 523 U.S. 371, 375–76 (1998)
(failure to raise Vienna Convention claim in state court resulted
in procedural default in subsequent habeas proceeding because
procedural rules of the forum State govern). I express no
opinion on the merits of my colleague’s interpretation of the
Treaty’s text.
RAO, Circuit Judge, concurring: Nizar Trabelsi has failed
to show we should depart from the law of the case, and
therefore I join the panel opinion in full. See United States v.
Trabelsi (“Trabelsi II”), 845 F.3d 1181 (D.C. Cir. 2017). Since
his extradition from Belgium in 2013, Trabelsi has challenged
his U.S. indictment for terrorism crimes on the grounds of non
bis in idem, the international law prohibition against being tried
twice for the same offense. On its face, the U.S.-Belgian
Extradition Treaty does not impose a non bis obligation on the
United States after extradition has occurred. Nonetheless, in
Trabelsi II the court simply determined Trabelsi was not being
tried twice for the same offense. While the court reached the
right result, in light of the important separation of powers
considerations at stake, I would have first addressed the
threshold question of whether the Treaty conferred a non bis
right that Trabelsi could invoke in the United States after his
extradition.
***
Trabelsi has doggedly challenged his indictment for
various crimes of terrorism on the grounds that it violates the
maxim non bis in idem (“not twice in the same matter”). He
claims the United States is prosecuting him for the same acts
he was criminally punished for in Belgium. Trabelsi maintains
that Article 5 of the U.S.-Belgian Extradition Treaty
incorporates the non bis principle. See Extradition Treaty
between the United States of America and the Kingdom of
Belgium, art. 5, Apr. 27, 1987, S. TREATY DOC. NO. 104-7. Non
bis is analogous to the Fifth Amendment’s prohibition against
double jeopardy. U.S. CONST. amend. V. It is blackletter law,
however, that the Double Jeopardy Clause does not bar
successive prosecutions by separate sovereigns. See Gamble v.
United States, 139 S. Ct. 1960, 1964 (2019); Trabelsi II, 845
F.3d at 1186. Trabelsi’s argument that he may not be tried twice
thus turns solely on the rights afforded by the Treaty.
2
Trabelsi’s challenge to his U.S. indictment requires us to
look first to the text of the Treaty to determine whether there is
an enforceable right to bar a U.S. prosecution after extradition
to the United States. See Medellin v. Texas, 552 U.S. 491, 506
(2008) (“The interpretation of a treaty, like the interpretation of
a statute, begins with its text.”). On this threshold question,
Trabelsi argues Article 5 of the Treaty incorporates the
principle of non bis and therefore that if Belgium violated
Article 5 when it extradited him, his U.S. indictment must be
dismissed.
Article 5 states: “Extradition 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.” Treaty, supra, art. 5(1). Article 5 concerns the
effect of a first prosecution on a subsequent extradition and
does not mention any successive “prosecution” or “trial” in the
requesting country.1 Rather, Article 5 places responsibility for
implementing the non bis principle squarely on the extraditing
1
By contrast, Article 15 provides: “A person extradited under this
Treaty may not be detained, tried, or punished in the Requesting
State” for offenses for which extradition was not granted. Treaty,
supra, art. 15 (emphasis added). Article 15 deals with “specialty,”
which is “[t]he principle, included as a provision in most extradition
treaties, under which a person who is extradited to a country to stand
trial for certain criminal offenses may be tried only for those offenses
and not for any other pre-extradition offenses.” Doctrine of
Specialty, BLACK’S LAW DICTIONARY (11th ed. 2019). Trabelsi’s
non bis claim cannot hinge on Article 15 because Trabelsi II
specifically explained that Article 15 was not at issue in the appeal,
845 F.3d at 1185 n.1, and because this court has now twice held that
Trabelsi’s prosecution accords with both countries’ understanding of
the extradition order.
3
state (the “Requested State”).2 In other words, the Treaty
required Belgium to refuse extradition if it had already
prosecuted Trabelsi for the offenses underlying the U.S.
indictment. But on its face, Article 5 says nothing about
whether, after extradition has occurred, the United States may
prosecute him for the same offense he was convicted of in
Belgium.3
This litigation might have been resolved years ago if
Article 5 of the Treaty had been given its plain meaning, which
places no bar on a U.S. prosecution after extradition by
Belgium. Instead, the district court skipped over the initial
question of whether Article 5 provided a ground for Trabelsi to
challenge his U.S. prosecution. That court assumed Article 5
could bar Trabelsi’s U.S. prosecution because both parties were
2
Extradition treaties typically frame the non bis principle as a
constraint on the extraditing state and not on the requesting state. See,
e.g., Extradition Treaty Between the Government of the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland, art. 5, Mar. 31, 2003, S. TREATY
DOC. NO. 108-23; MICHAEL ABBELL, EXTRADITION TO AND FROM
THE UNITED STATES § 6-2(18) (2007). As a practical matter, it makes
sense to resolve issues regarding the scope of extradition before
extradition occurs. On the other hand, the doctrine of specialty must
usually be enforced in the requesting country to ensure that the
prosecution is limited to those offenses for which extradition was
granted.
3
I do not address the separate question of whether, under the Treaty,
a person in the United States could challenge extradition to Belgium
on non bis grounds. Our courts often adjudicate treaty based non bis
claims. See, e.g., Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980)
(Friendly, J.) (considering and rejecting a non bis defense to
extradition from the United States based on a U.S.-Italian extradition
treaty). Trabelsi, for instance, has brought numerous Article 5 claims
against his extradition in Belgian courts.
4
“equal partners” under the Treaty. United States v. Trabelsi,
2015 WL 13227797, at *4 (D.D.C. Nov. 4, 2015) (noting
without analysis of the Treaty text that “the United States and
Belgium may be on equal footing to consider a defendant’s
Article 5 claims”). The Treaty of course creates an agreement
binding on both parties; however, each country’s obligations
are determined by the specific articles of the Treaty, not the
mere fact of the Treaty.
Trabelsi II also did not address the question of whether
Article 5 gave Trabelsi grounds for challenging his U.S.
indictment and instead analyzed the substantive question of
whether his extradition from Belgium was consistent with the
Treaty. In answering that question, we properly explained that
“the scope of Article 5 [is] a matter for Belgium” because “[i]t
was for Belgium, as the requested party, to determine whether
to grant extradition.” 845 F.3d at 1188. We rejected Trabelsi’s
claims because Belgium had reasonably construed the Treaty
to allow for his extradition for the crimes specified in the U.S.
extradition request. In other words, we deferred to Belgium’s
conclusion that Trabelsi’s extradition was not for the same
offenses for which he was prosecuted in Belgium. Deference
to Belgium’s decision, however, does not address the prior
question of whether Trabelsi could invoke Article 5 against his
U.S. prosecution at all.
My point is simply that we should have analyzed the text
of the Treaty first. A ruling based on the Treaty’s text could
have clarified that Article 5 would not provide a basis for
Trabelsi to challenge his U.S. prosecution. This would have
allowed the court to reject Trabelsi’s motion to dismiss his
indictment without passing on whether Belgium’s extradition
decision violated the Treaty.
5
***
Furthermore, whether the Treaty confers an enforceable
non bis in idem right should have been decided at the outset
because Trabelsi’s challenge to his U.S. prosecution implicates
the Constitution’s separation of powers.
First, courts must respect the commitment of the treaty
making power to the President and the Senate. See U.S. CONST.
art. II, § 2; id. art. VI (treaties are part of the supreme law of
the land). Therefore, “to 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.” The Amiable Isabella, 19 U.S. (6 Wheat.) 1,
71 (1821) (Story, J.).
International law principles like non bis have no free-
floating status in domestic law. Cf. Medellin, 552 U.S. at 504(“[N]ot all international law obligations automatically
constitute binding federal law enforceable in United States
courts.”); Al-Bihani v. Obama, 619 F.3d 1, 10 (D.C. Cir. 2010)
(Kavanaugh, J., concurring in the denial of rehearing en banc)
(“[I]nternational-law norms are not domestic U.S. law in the
absence of action by the political branches to codify those
norms.”). Instead, the text of a treaty determines whether a
given provision or principle is a “directive to domestic courts”
that may be enforced by litigants. Medellin, 552 U.S. at 508.
Respect for the President’s control over foreign affairs requires
courts to take a text-first approach to treaty interpretation. See
id. at 506; Majority Op. at 11.
Second, extradition is traditionally an executive act, and
the Treaty’s obligations will be implemented by the U.S. and
Belgian executives. See Majority Op. at 12 (discussing the
Treaty’s “emphasis on the executive authority”). Assuming the
6
Treaty includes a right to enforce non bis in idem against a U.S.
prosecution after extradition risks improper judicial
interference with delicate foreign affairs, the conduct of which
has been primarily committed to the President. U.S. CONST. art.
II; cf. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188
(1993) (noting that the “President has unique responsibility”
for “foreign and military affairs”).
In this case, Trabelsi was convicted in Belgium of
conspiring and attempting to destroy U.S.-Belgian military
facilities. The diplomatic negotiations between U.S. and
Belgian law enforcement centered on the scope of the
extradition and the crimes for which Trabelsi would be
extradited. The negotiations also included other conditions,
such as a guarantee that Trabelsi would not be sent back to
Tunisia, his country of origin. Absent a firm legal basis, courts
should not second guess such sensitive negotiations. The
Executive Branch should be able to secure extradition against
a clear background of treaty rights, interpreted fairly based on
a treaty’s text, not general principles of international law read
into the treaty. Moreover, extradition links up with the
Executive Branch’s “clear and indisputable right to control the
initiation and dismissal of prosecutions.” In re Flynn, 973 F.3d
74, 94 (D.C. Cir. 2020) (en banc) (Rao, J., dissenting). Courts
should not second guess an otherwise valid criminal indictment
through the application of international law norms such as non
bis unless a treaty clearly demands it.
Finally, as the government argued in earlier stages of this
litigation, unless there is some other legal basis, treaty
violations during the process of bringing Trabelsi to the United
States cannot suffice to dismiss an indictment. Instead, the
“broad rule” in the extradition context follows the longstanding
Ker-Frisbie doctrine, under which alleged misconduct in
bringing someone into the United States’ criminal jurisdiction,
7
including even “shocking” “abductions,” does not render the
subsequent prosecution unlawful. United States v. Alvarez-
Machain, 504 U.S. 655, 660–61, 669 (1992) (citing Ker v.
Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519(1952)); see also United States v. Riviere, 924 F.2d 1289, 1301
(3d Cir. 1991) (“Ker teaches that the mere existence of a treaty
does not create individual rights” for everyone within a
contracting country). The Supreme Court has consistently
deferred to the Executive Branch to address the international
implications of prosecuting someone already within U.S.
jurisdiction. Alvarez-Machain, 504 U.S. at 669–70. In light of
these background principles, unless a treaty (or other domestic
law) specifically binds the U.S. government, courts cannot
impose international law barriers to U.S. prosecutions.
***
Before entertaining a treaty based challenge to a U.S.
indictment, courts should ensure that the treaty protects an
individual right against the U.S. government. This inquiry
safeguards the separation of powers and mitigates the danger
that loose treaty interpretation will undermine international
cooperation in the enforcement of U.S. criminal laws.
Although the court skipped this analysis in earlier stages of the
litigation, Trabelsi II reached the right result and is law of the
case barring Trabelsi’s appeal. Examining the Treaty’s text at
the outset, however, might have prevented the nearly decade-
long delay of Trabelsi’s trial through successive and meritless
efforts to undo his extradition on non bis grounds.