United States v. Gonzalez-Valencia ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 16-65-1 (BAH)
GERARDO GONZÁLEZ-VALENCIA,
Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM AND ORDER
Pending before the Court is defendant Gerardo González-Valencia’s motion to dismiss
the single-count indictment charging him with conspiracy to distribute five kilograms or more of
cocaine and five hundred grams or more of methamphetamine for importation into the United
States, in violation of 21 U.S.C. §§ 959(a), 960, and 963 and 18 U.S.C. § 2, on grounds that his
extradition from Uruguay to the United States was unlawful. See generally Def.’s Mot. to
Dismiss and Mem. of Points and Authorities (“Def.’s Mem.”), ECF No. 95. 1 Specifically,
defendant argues that the government “presented no evidence to support a probable cause
determination for extradition” and that “the uncontroverted Uruguayan court record shows that
the foreign court applied the wrong legal standard in determining to grant extradition.” Id. at 13-
14. This argument is without basis and defendant’s motion must be denied, as further explained
below. 2
1
All references to the parties’ briefs and associated exhibits reflect the enumeration generated automatically
by the Court’s Case Management/Electronic Case Filing (“CM/ECF”) system.
2
Defendant alternatively requests “an evidentiary hearing to determine the true extent of the Government’s
misconduct and to perform an in camera review of the evidentiary proof . . . submitted to the grand jury” in the
event “the Court wishes to review the entire record before ruling on this Motion.” Def.’s Mem. at 3-4; see also
Def.’s Request for Oral Argument or In Camera Review, ECF No. 106. This alternative request is denied as moot
since defendant has adduced no evidence of any government misconduct and nothing precludes adjudication, on the
papers, of defendant’s pending motion to dismiss the indictment.
1
I. BACKGROUND
Defendant, who faces trial on January 23, 2023 alongside his brother and co-defendant
José González-Valencia, was indicted by a grand jury sitting in this District on April 19, 2016,
see Indictment, ECF No. 1, and an arrest warrant issued that same day by another Judge of this
Court, see Min. Entry (April 19, 2016). Defendant’s indictment resulted from “an extensive,
long-term . . . investigation conducted by the Drug Enforcement Administration (‘DEA’) into the
operations of two, interrelated large-scale drug trafficking organizations (‘DTOs’) based in
Jalisco, Mexico known as the Cartel de Jalisco Nueva Generaci[ó]n [‘CJNG’] . . . and Los Cuinis
Drug Trafficking Organization,” which the government alleges was headed by defendant, his co-
defendant brother, and other members of their family. Gov’t’s Mem. Opp’n Def.’s Mot. to
Dismiss (“Gov’t’s Opp’n”), at 3, ECF No. 99. According to the government, CJNG and Los
Cuinis “operate together under a close alliance[,] . . . form[ing] one of the largest, most
dangerous, and prolific drug cartels in the world,” and “are responsible for trafficking ton
quantities of illegal drugs into the United States and employing extreme violence to further that
objective.” Id.On June 1, 2016, the government requested that defendant be extradited from Uruguay
pursuant to a bilateral treaty between that country and the United States. See Treaty on
Extradition and Cooperation in Penal Matters (“Extradition Treaty”), U.S.-Uruguay, Apr. 6,
1973, T.I.A.S. No. 10850. This request was supported by a 51-page extradition package, which
included, inter alia, copies of the indictment returned and arrest warrant issued in this Court;
excerpts of relevant statutes; and two affidavits executed by a Department of Justice prosecutor
and a DEA agent, respectively, explaining the grand jury process and providing a summary of
the facts of the case. See generally Def.’s Mem., Ex. A, Extradition Package, ECF No. 95-1.
2
Defendant, with the assistance of counsel, spent the next four years vigorously and
unsuccessfully contesting the government’s extradition request before the Uruguayan courts.
Between 2017 and 2020, three different Uruguayan courts, all the way up to Uruguay’s
highest court, the Supreme Court of Justice, examined defendant’s challenges to the
government’s request and each authorized his extradition. See Def.’s Mem., Ex. I, August 28,
2017 Uruguay First Instance Special Criminal Court Judgment (“Uruguay Criminal Court
Decision”), ECF No. 95-9; Ex. J, February 11, 2020 Uruguay Supreme Court of Justice
Judgment (“Uruguay Supreme Court Decision”), ECF No. 95-10; id. at 13 (noting that, on
October 2, 2018, “the Criminal Court of Appeals 4th Rotation” affirmed the First Instance
Special Criminal Court’s August 2017 judgment authorizing defendant’s extradition); see also
Gov’t’s Opp’n at 24 (noting that granting defendant’s motion “would overturn the findings and
orders of three Uruguayan courts”). Notably, both the Uruguay Criminal Court and the Uruguay
Supreme Court considered—and rejected—the same argument, raised again by defendant in the
instant motion to dismiss the indictment: that the government’s extradition request was not
supported by probable cause. In this regard, the Uruguay Criminal Court found that “the
evidential elements referred to reach[] the evidentiary standard required by the Treaty.” Uruguay
Criminal Court Decision at 23. The Uruguay Supreme Court likewise rejected defendant’s
argument that the extradition package did “not satisfy the requirements of the Treaty in order to
prove probable cause for extradition.” See Uruguay Supreme Court Decision at 17-22. 3
After exhaustion of judicial review in Uruguay, defendant was extradited to the United
States on May 14, 2020, see Min. Entry (May 14, 2020), and arraigned the next day, see Min.
Entry (May 15, 2020).
3
As explained infra, the government’s extradition request was based on probable cause and, in any event,
the Extradition Treaty did not require the Uruguayan courts to make any probable cause determination.
3
II. DISCUSSION
Under its supervisory powers, a district court generally retains authority to dismiss an
indictment, but because doing so “‘directly encroaches upon the fundamental role of the grand
jury,’ dismissal is granted only in unusual circumstances.” United States v. Ballestas, 795 F.3d
138, 148 (D.C. Cir. 2015) (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir.
1995)). The D.C. Circuit has had “no occasion” to determine “whether dismissal would be an
appropriate remedy” when a defendant succeeds in establishing that his extradition was
unlawful. United States v. Trabelsi, 845 F.3d 1181, 1193 (D.C. Cir. 2017). Nevertheless, the
Circuit has held that once “an individual has been extradited pursuant to a treaty,” United States
courts can only engage in a “highly deferential” review and must “defer to the extradition
decision of the extraditing country.” Id. at 1186; see also Casey v. Dep’t of State, 980 F.2d 1472,
1477 (D.C. Cir. 1992) (“[A]n American court must give great deference to the determination of
the foreign court in an extradition proceeding.”). 4 This “narrow” review, Trabelsi, 845 F.3d at
1188, requires a court, “absent evidence to the contrary,” to “presume . . . that the extraditing
nation has complied with its obligations under the treaty and that the extradition is lawful,” id at
1186. This presumption of lawful extradition “is not irrebuttable” and may be rebutted through:
(1) “[e]vidence [of] . . . misconduct on the part of the United States in procuring an extradition;”
(2) “the absence of review of the extradition request by the requested party;” (3) or a “showing
that the requested state or party did not apply the correct legal standard adopted in the Treaty.”
Id. at 1189.
4
In Trabelsi, the D.C. Circuit also held, as a threshold matter, that federal courts retain jurisdiction to review
a foreign sovereign’s extradition decision although “extradition implicates the sovereignty of a nation to control its
borders and to enforce its treaties” and thus “judicial review of such a decision could implicate concerns of
international comity.” 845 F.3d at 1187 (cleaned up). The government does not dispute the Court’s jurisdiction to
review defendant’s extradition from Uruguay. See Gov’t’s Opp’n at 7-8.
4
Here, after “his objections to extradition received multiple layers of review by”
Uruguayan courts, defendant does not—and cannot—argue that the government’s extradition
request was insufficiently reviewed “by the requested party.” See id. Defendant instead
contends, first, that “the [g]overnment engaged in misconduct in procuring [his] extradition,”
Def.’s Mem. at 15, because the government “knew when it submitted its Extradition Package
that there was insufficient evidence to determine probable cause,” Def.’s Reply Supp. Mot. to
Dismiss (“Def.’s Reply”), at 24, ECF No. 102, and, second, that “the record is unequivocal that
the Uruguayan court did not comply with its obligations under the Treaty insofar as it did not
apply the correct legal standard adopted by the Treaty with respect to probable cause,” Def.’s
Mem. at 15; see also Def.’s Mem. at 37 (“Uruguay failed to apply the correct legal standard by
granting the Government’s extradition request without assessing the evidence to determine
probable cause. Accordingly, any presumption under Trabelsi that the extradition is lawful is
clearly and conclusively rebutted.”). Both challenges to the extradition are unavailing.
To begin, the government’s extradition request was indisputably predicated on probable
cause, as reflected in the indictment returned by a grand jury sitting in this District upon
determining that there was probable cause to charge defendant with committing the conspiracy
charged. This is hornbook law. See Kaley v. United States, 571 U.S. 320, 328 (2014)
(“The grand jury gets to say—without any review, oversight, or second-guessing—
whether probable cause exists to think that a person committed a crime”). The extradition
package that the government submitted to Uruguay included copies of this indictment and the
arrest warrant issued based on that indictment. See Extradition Package at 33-36 (copy of
indictment), 38 (copy of arrest warrant). Defendant’s first argument suggesting that the
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government engaged in some form of misconduct by seeking his extradition without a probable
cause determination, see Def.’s Reply at 24, is thus made up out of whole cloth.
Defendant’s second argument is also without merit. The multiple Uruguayan courts that
reviewed defendant’s challenge to his extradition correctly applied the controlling standard under
the Extradition Treaty. “The interpretation of a treaty, like the interpretation of a statute, begins
with its text.” Medellin v. Texas, 552 U.S. 491, 506 (2008). Article 10 of the Extradition Treaty
outlines the requirements for extraditions between the United States and Uruguay. See generally
Extradition Treaty, art. X.
As relevant here, Article 10 commands that an extradition request relating “to a person
who has not yet been convicted . . . must be accompanied by a warrant of arrest issued by a judge
or other judicial officer of the requesting Party.” Id., art. X, ¶ 3 (emphasis added). Next, it
provides that the “requested Party may require the requesting Party to produce evidence to
establish probable cause that the person claimed has committed the offense for which extradition
is requested.” Id. (emphasis added). Finally, the Extradition Treaty contemplates that the
“requested Party may refuse the extradition request if an examination of the case in question
shows that the warrant is manifestly ill-founded.” Id. (emphasis added). The text of Article
10—through its use of may—therefore makes plain that the Extradition Treaty does not require
the courts of Uruguay to make a probable cause determination before ordering extradition. See
Gov’t’s Opp’n at 10 (“When Article 10 is read in its entirety, it is clear that the provision of the
Treaty related to probable cause is discretionary, not mandatory.”). 5 In considering—and
5
Under Article 10 of the Extradition Treaty, the government was also required to make its request for
extradition “through diplomatic channel” and to include in its extradition package: a “statement of the facts of the
case;” “[t]he data necessary to prove the identity of the person whose extradition is sought;” and the “text of the
applicable laws.” Extradition Treaty, art. X, ¶¶ 1-2. The government’s compliance with these additional
requirements before securing defendant’s extradition from Uruguay is undisputed.
6
rejecting—defendant’s challenge to his extradition on this basis, the Uruguayan courts reached
the same conclusion and determined that the government had fulfilled its obligations under
Article 10 while requesting defendant’s extradition. See Uruguay Criminal Court Decision at 22
(“It is then not appropriate to assess the evidence produced by the requesting State, but rather
only to assess it to determine that the extradition request and the arrest warrant are not manifestly
unfounded, in accordance with the provisions of Art. 10.3 . . . of the Treaty.”); id. at 23 (“[T]he
evidential elements referred to reach[] the evidentiary standard required by the Treaty, and it
cannot be concluded that the arrest warrant issued by the requesting State Court is clearly
unfounded.”); Uruguay Supreme Court Decision at 18 (defendant “seeks to ignore that [his]
arguments concerning the sufficiency of the evidentiary elements, in order to prove the
commission of the offense, are the subject of the trial to be held in the United States of America,
but outside the scope of this jurisdictional proceeding”); id. (“[I]t is not possible to observe, from
the examination of the extradition request, that the arrest warrant issued by the authorities of the
requesting State is ‘manifestly unfounded.’”).
In short, no basis has been presented by defendant to rebut the presumption of lawful
extradition that generally applies, see Trabelsi, 845 F.3d at 1186, or to depart from the reasoned
judgment of the three Uruguayan courts, including that country’s Supreme Court, which
consecutively reviewed the government’s extradition package and approved defendant’s
extradition to the United States.
III. CONCLUSION AND ORDER
For the foregoing reasons, defendant has proffered no evidence sufficient to rebut the
presumption that Uruguay complied “with its obligations under the treaty and that the extradition
is lawful,” id., and it is hereby
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ORDERED that defendant’s Motion to Dismiss the Indictment, ECF No. 95, is
DENIED; and it is further
ORDERED that defendant’s Motion for Oral Argument or In Camera Review, ECF No.
106, is DENIED AS MOOT.
SO ORDERED.
Date: July 5, 2022
__________________________
BERYL A. HOWELL
Chief Judge
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