Aguasvivas v. Pompeo

United States Court of Appeals
For the First Circuit
No. 19-1937
CRISTIAN AGUASVIVAS,
Petitioner, Appellee,
v.
MICHAEL POMPEO, U.S. Secretary of State; JEFFREY ROSEN, Acting
U.S. Attorney General;* JOHN GIBBONS, U.S. Marshal for the
District of Massachusetts; WING CHAU, U.S. Marshal for the
District of Rhode Island; DANIEL MARTIN, Warden, Wyatt Detention
Facility,
Respondents, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., Chief U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Amy Barsky, with whom Fick & Marx LLP was on brief, for
appellee.
Lee Gelernt, Cody Wofsy, Roberto Gonzalez, and Lynette
Labinger on brief for the American Civil Liberties Union Foundation
and the ACLU Foundation of Rhode Island, amici curiae.
Christopher J. Smith, Associate Director, Office of
International Affairs, Criminal Division, U.S. Department of
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney General Jeffrey Rosen has been substituted for
former Attorney General William P. Barr.
Justice, with whom Brian A. Benczkowski, Assistant Attorney
General, Criminal Division, Bruce C. Swartz, Deputy Assistant
Attorney General, Criminal Division, Philip A. Mirrer-Singer,
Trial Attorney, Office of International Affairs, Criminal
Division, Andrew E. Lelling, United States Attorney, District of
Massachusetts, Cynthia A. Young, Chief, Appeals Unit, District of
Massachusetts, and Theodore B. Heinrich, Assistant United States
Attorney, District of Massachusetts, were on brief, for
appellants.
January 7, 2021
KAYATTA, Circuit Judge. The Dominican Republic requests
Cristian Starling Aguasvivas for extradition. After a federal
magistrate judge certified Aguasvivas as eligible for extradition,
Aguasvivas filed a habeas corpus petition in the District of Rhode
Island arguing, among other things, that the Dominican Republic
had failed to provide the required documentation in its extradition
request, and that his extradition would violate the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, Dec. 10, 1984, T.I.A.S. No. 94-1120.1
("CAT"), given that the Board of Immigration Appeals ("BIA") had
previously found that he was qualified for CAT relief. The
district court agreed with Aguasvivas on both points, and the
United States has now appealed.
For the reasons explained below, we disagree with the
district court that the United States is bound by the BIA's prior
determination awarding Aguasvivas CAT relief. We nevertheless
affirm the grant of habeas relief because we agree that the United
States has failed to file the necessary documents to support an
extradition request.
I.
On December 6, 2013, Aguasvivas was with his brother,
Francis ("Frank"), when three Dominican drug officers, including
Lorenzo Ubri, handcuffed and attempted to arrest Aguasvivas. Shots
were fired while the officers were attempting to put Aguasvivas
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into their car. According to the Dominican Republic as represented
by the United States, "Frank distracted the agents by protesting,
and Aguasvivas took advantage of this distraction to disarm Agent
Ubri and shoot him three times at close range, including two
bullets to the chest area." Ubri died; the two other officers
were shot but not killed.
In December 2013, a Dominican warrant issued for
Aguasvivas's arrest. Eight months later, Aguasvivas fled to the
United States. In immigration court, he sought asylum, withholding
of removal, and CAT relief because of his fear of Dominican police.
The immigration judge denied all relief, but in August 2016, the
BIA reversed and granted withholding of removal under the CAT.
The BIA found that it was "more likely than not that [Aguasvivas
would] be tortured at the instigation of or with the consent or
acquiescence of public official[s] in the Dominican Republic" if
he returned.1
Just over three years after the warrant issued, in
February 2017, the Dominican Republic submitted an extradition
request to the United States. Extradition is a "two-step procedure
[that] divides responsibility . . . between a judicial officer and
the Secretary of State." United States v. Kin-Hong, 110 F.3d 103,
1 At the immigration hearing, four victims testified that
the Dominican police tortured them for information on Aguasvivas's
location. The police also killed Aguasvivas’s brother, Frank.
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109 (1st Cir. 1997). The process is set out in the extradition
statutes, 18 U.S.C. § 3181 et seq. First, upon a complaint from
the Department of Justice in response to the foreign government's
request, the magistrate judge issues a warrant for the arrest of
the individual sought. See id. § 3184. The magistrate then
conducts a hearing to consider whether the extradition request
complies with the relevant treaty's documentation requirements,2
and whether "the evidence [is] sufficient to sustain the charge
under the provisions of the proper treaty." See id. If those
requirements are fulfilled, the magistrate certifies the
extradition to the Secretary of State. Id. The Secretary then
"determine[s] whether or not the [fugitive] should actually be
extradited." Kin-Hong, 110 F.3d at 109 (citing 18 U.S.C. § 3186).
"The Secretary has the authority to review the judicial officer's
findings of fact and conclusions of law de novo, and to reverse
2 The statute is not perfectly clear on the magistrate's
obligation to review whether the documents submitted by the
requesting party fulfill the obligations of the pertinent treaty.
The language of the statute simply requires that the magistrate
certify the extradition "[i]f . . . he deems the evidence
sufficient to sustain the charge under the provisions of the
property treaty or convention." 18 U.S.C. § 3184. We have
previously read that portion of the statute to allow the magistrate
(and subsequent habeas court) to consider whether a treaty's
warrant requirement was fulfilled. See Kin-Hong, 110 F.3d at 113–
14; see also Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1448–49 (9th
Cir. 1987); In re Assarsson, 635 F.2d 1237, 1240-43 (7th Cir.
1980). The government does not argue that Aguasvivas's
documentation claim in this case was not properly before the
magistrate or the district court.
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the judicial officer's certification . . . if [he] believes that
it was made erroneously." Id. The Secretary can also "decline to
surrender the relator on any number of discretionary grounds,
including but not limited to, humanitarian and foreign policy
considerations." Id. Finally, the Secretary may "attach
conditions to the surrender of the relator" or "use diplomatic
methods to obtain fair treatment for the relator" -- tools the
judiciary does not have.3 Id. at 110.
Upon receipt and review of the request from the Dominican
Republic to extradite Aguasvivas, the United States filed an
extradition complaint in the District of Massachusetts. A U.S.
warrant issued, and Aguasvivas was arrested in September 2017 in
Lawrence, Massachusetts. Following a hearing, a magistrate judge
in the District of Massachusetts certified Aguasvivas's
extradition in December 2018. The magistrate judge found that the
extradition request was supported by the documentation required by
the Dominican Republic-United States Extradition Treaty
("Extradition Treaty"), Extradition Treaty, Dom. Rep.-U.S., Jan.
12, 2015, T.I.A.S. No. 16-1215, and that there was probable cause
3 For a critical analysis of how often such diplomatic
assurances actually work to prevent torture, see Katherine R.
Hawkins, The Promises of Torturers: Diplomatic Assurances and the
Legality of "Rendition", 20 Geo. Immigr. L.J. 213 (2006). See
also Comm. on Int'l Human Rights, Torture by Proxy: International
and Domestic Law Applicable to 'Extraordinary Renditions', 60 Rec.
Ass'n B. City N.Y. 13, 138–49 (2005).
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to certify Aguasvivas for the extraditable offenses of murder,
possession of a firearm, and robbery.
Magistrates' certifications of extraditability are not
appealable final orders under 28 U.S.C. § 1291. In re Mackin, 668
F.2d 122, 127–28 (2d Cir. 1981). Extraditees therefore sometimes
seek habeas relief to challenge their detention pursuant to the
certifications. See id. at 128; see, e.g., In re Extradition of
Manzi, 888 F.2d 204, 205 (1st Cir. 1989) (per curiam). To
challenge his detention and avoid extradition, Aguasvivas filed
just such a habeas petition in the District of Rhode Island. The
district court granted the petition in September 2019. It first
found that the magistrate judge had evidence sufficient to find
probable cause. But it then found both that the extradition was
barred by the BIA's CAT determination and that the extradition
request did not satisfy the documentary requirements of the
treaty.4
With this appeal, the United States challenges both the
ruling that the BIA's 2016 CAT determination precludes extradition
and the ruling that the request of the Dominican Republic does not
4 Because it found that release was required on Aguasvivas's
CAT and documentation requirements claims, the district court did
not reach all the claims in the habeas petition. Specifically,
the habeas petition includes additional claims under procedural
due process, substantive due process, and the Administrative
Procedure Act.
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satisfy the documentary requirements for extradition. We address
each challenge in turn.
II.
A.
We begin with the United States' challenge to the
district court's ruling that the Convention Against Torture
precludes Aguasvivas's extradition. At issue here, according to
Aguasvivas, is the prospect that, if extradited to the Dominican
Republic, he will be tortured. A claim of feared torture warrants
attention in the extradition context because of the principle of
non-refoulement in international law, reflected in Article 3 of
the CAT, and enacted in the United States (as pertinent here) in
the "FARR Act." See Foreign Affairs Reform and Restructuring Act
of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-
822; Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) ("[The FARR
Act] implements Article 3 of the international Convention Against
Torture, known as CAT."). That Act states in part that "[i]t shall
be the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a country
in which there are substantial grounds for believing the person
would be in danger of being subjected to torture." FARR Act
§ 2242(a). It then "delegates the responsibility for
'prescrib[ing] regulations to implement the obligations of the
United States' under the CAT to 'heads of the appropriate
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agencies.'" Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir.
2003) (quoting FARR Act § 2242(b)). As relevant to extradition,
the Secretary of State, "[i]n order to implement" the United
States' obligations under the CAT, "considers" whether an
individual sought is "more likely than not" to be tortured before
extraditing him. 22 C.F.R. § 95.2(b).
Aguasvivas, though, does not want to wait to see what
the Secretary decides. Instead, he launched a preemptive strike,
asking the district court to rule now that the threat of torture
must prevent his extradition, and thus that there is no reason to
detain him. And the district court agreed, reasoning that, because
the BIA previously found that removal of Aguasvivas by immigration
authorities was barred by the CAT, the Secretary is estopped from
ruling otherwise. In challenging that ruling, the United States
advances two arguments that command our attention. First, the
United States contends that the district court exceeded its own
statutory jurisdiction by inquiring into the subject of whether
the CAT precluded Aguasvivas's extradition. In support of this
argument, the United States relies on the so-called "rule of non-
inquiry," Kin-Hong, 110 F.3d at 110;5 the Senate's declaration that
5 See Trinidad y Garcia v. Thomas, 683 F.3d 952, 992 (9th
Cir. 2012) (Berzon, J., concurring in part) ("The Supreme Court
has never used the term 'rule of non-inquiry' . . . . Instead,
the doctrine developed . . . as lower courts interpreted and
expounded upon Supreme Court extradition precedents.").
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Article 3 of the CAT is not self-executing, 136 Cong. Rec. 36198
(1990); the FARR Act § 2242(d); and the REAL ID Act of 2005, Pub.
L. No. 109-13, § 106(a)(1)(B), 119 Stat. 231, 310 (codified at 8
U.S.C. § 1252(a)(4)). Second, the United States argues that, in
any event, the CAT's application to this extradition request is
not pre-ordained by the BIA ruling and is in fact an issue that is
not yet ripe. Because we find the collateral estoppel issue ripe,
and the argument against treating the BIA ruling as controlling to
be plain and persuasive, we skip over the more difficult issues of
whether we possess statutory jurisdiction. Cowels v. FBI, 936
F.3d 62, 67 (1st Cir. 2020) ("Where a question of statutory
jurisdiction is complex, but the merits of the appeal are 'easily
resolved against the party invoking [] jurisdiction,' we can assume
jurisdiction for purposes of deciding the appeal." (quoting In re
Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d 98, 114 n.13 (1st
Cir. 2019))).6
6 We have no reason to believe that any principle of non-
inquiry implicates federal court jurisdiction -- much less
Article III jurisdiction. In Munaf v. Geren, although the Supreme
Court dismissed the petitioners' torture claims based in part on
principles of non-inquiry, 553 U.S. 674, 700-03 (2008), the Court
held that the district court at least had jurisdiction over the
claims as "habeas corpus petitions filed on behalf of American
citizens challenging their detention in Iraq" by a multinational
force, id. at 680, 685-88. Similarly, we have previously explained
that the principle of non-inquiry cannot be "regarded as an
absolute," Kin-Hong, 110 F.3d at 112, quoting the Second Circuit's
statement that it could "imagine situations where the relator,
upon extradition, would be subject to procedures or punishment so
antipathetic to a federal court’s sense of decency as to require
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1.
A federal court possesses Article III jurisdiction to
hear a case or controversy only if it alleges an injury in fact.
See Susan B. Anthony List v. Driehaus (SBA List), 573 U.S. 149,
157–58 (2014). An allegation of future injury satisfies that
requirement only "if the threatened injury is 'certainly
impending,' or there is a 'substantial risk' that the harm will
occur." Id. at 158 (quoting Clapper v. Amnesty Int'l U.S.A., 568
U.S. 398, 414 n.5 (2013)); see also Reddy v. Foster, 845 F.3d 493,
500 (1st Cir. 2017). We have previously described our ripeness
inquiry as having "roots in both the Article III case or
controversy requirement and in prudential considerations," Reddy,
845 F.3d at 500 (quoting Roman Cath. Bishop of Springfield v. City
of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)), but we
acknowledge that the Supreme Court has moved away from considering
reexamination" of the principle, id. (quoting Gallina v. Fraser,
278 F.2d 77, 79 (2d Cir. 1960)); see also Hilton v. Kerry, 754
F.3d 79, 86–87 (1st Cir. 2014) (applying principles of non-inquiry
and declining to apply the "theoretical Gallina exception" but
providing no suggestion of a jurisdictional bar); In re Extradition
of Howard, 996 F.2d 1320, 1329 (1st Cir. 1993) (defining non-
inquiry as "a doctrine which forbids judicial authorities from
investigating the fairness of a requesting nation's justice system
when considering whether to permit extradition to that nation" --
but not as jurisdictional).
The government has not argued that Aguasvivas's CAT claim is
outside the scope of habeas jurisdiction as defined under Fernandez
v. Phillips, 268 U.S. 311, 312 (1925), and discussed further below,
so we need not address that issue here.
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prudential standing separate and apart from Article III standing,
see Lexmark Int'l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 125–26 (2014) (explaining that to take prudential
considerations into account in determining standing would be "in
some tension with our recent reaffirmation of the principle that
'a federal court's obligation to hear and decide' cases within its
jurisdiction 'is virtually unflagging'" (quoting Sprint Commc'ns.,
Inc. v. Jacobs, 571 U.S. 69, 77 (2013))). While it is unclear
whether prudential ripeness concerns in particular may still be
entertained, see SBA List, 573 U.S. at 167 ("[W]e need not resolve
the continuing vitality of the prudential ripeness doctrine in
this case . . . ."), Aguasvivas plainly alleges injury either way:
He claims that extradition and, thus, the renewal of his detention
for extradition are precluded by the fact that a prior ruling
renders him nonextraditable under the CAT. See Dep't of Homeland
Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1974 (2020) ("[E]xtradition
cases . . . illustrate nothing more than the use of habeas to
secure release from custody when not in compliance with the
extradition statute and relevant treaties."). As a result, the
government's argument that Aguasvivas's collateral estoppel claim
is not ripe fails.
2.
We thus move to the merits of Aguasvivas's collateral
estoppel claim, which is that the Secretary is estopped from
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determining that Aguasvivas is not likely to face torture if he
returns to the Dominican Republic, because the immigration courts
have already determined that he is likely to face torture. Even
putting to one side the questions of whether and when one agency
of the federal government may collaterally bind another arm of the
government,7 collateral estoppel cannot apply here because the
issues are not the same. See NLRB v. Donna-Lee Sportswear Co.,
Inc., 836 F.2d 31, 34 (1st Cir. 1987) ("[T]he issue before the
second forum must be the same as the one in the first
forum . . . ."). The issue before the BIA was whether it was more
likely than not that Aguasvivas would be tortured if he were
removed by immigration authorities to the Dominican Republic in
2016. See 8 C.F.R. § 208.16(c)(3). The issue to be addressed by
the Secretary would be whether Aguasvivas is more likely than not
to be tortured if he is extradited by the Secretary in 2020. See
22 C.F.R. § 95.2(b). The relevant time frames at issue differ by
several years. And the Secretary may also be able to use the
normal tools of diplomacy to assure certain treatment for
Aguasvivas upon surrender, as described above. See Kin-Hong, 110
F.3d at 110. So whether Aguasvivas would be tortured if extradited
by the Secretary in 2020 is a materially different question from
7
The government argues that the parties are not identical,
and Aguasvivas counters with several theories under which the
parties may be at least in privity with each other.
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whether he would have been tortured had he been removed by
immigration officials without any such assurances in 2016.
As one amicus brief8 has pointed out, in theory the
Secretary could have sought the same diplomatic assurances from
the Dominican Republic during the litigation of Aguasvivas's CAT
claim in removal proceedings. See 8 C.F.R. § 1208.18(c) (setting
forth a procedure for the Secretary of State to forward diplomatic
assurances to the Attorney General to be relied upon in immigration
proceedings). But we see no reason why the Secretary should be
required to seek diplomatic assurances in removal proceedings or
else forever hold his or her peace, especially given that removal
proceedings might take place before the foreign government even
requests extradition in the first place -- as happened here.
Presumably, even potentially effective assurances in place at the
time of removal proceedings would have to be re-sought or updated
if there were an extradition process years later. The availability
of diplomatic assurances in the removal process thus does not
convince us that the Secretary must be bound by the results of
that process.9 As a result, we see no reason to bind the government
8 See Br. for the American Civil Liberties Union Foundation
and ACLU Foundation of Rhode Island as Amicus Curiae Supporting
Appellee and Affirmance at 21.
9 Furthermore, the CAT relief Aguasvivas was awarded in his
removal proceeding was not tantamount to permanent legal status.
See Andrea Montavon-McKillip, CAT Among Pigeons: The Convention
Against Torture, a Precarious Intersection Between International
Human Rights Law and U.S. Immigration Law, 44 Ariz. L. Rev. 247,
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preemptively by collateral estoppel in these extradition
proceedings, and Aguasvivas's detention would be proper as a matter
of extradition procedure -- at least as to the CAT issue. See 18
U.S.C. § 3184 (requiring the extradition magistrate to "issue his
warrant for the commitment of the person so charged to the proper
jail" upon certifying extraditability).
B.
We turn now to Aguasvivas's claim that the documentary
requirements of the Dominican Republic-United States Extradition
Treaty have not been met, beginning with the question of whether
we have habeas jurisdiction to review the magistrate's
determination on the issue at all and then proceeding to the
merits.
1.
In its briefs, the United States makes no claim that we
lack jurisdiction to determine whether the documentary
requirements of the treaty have been satisfied. Counsel for the
United States explained that the United States has previously and
260 (2002) (explaining that CAT relief does not "confer derivative
status to the applicant's family," "provide any permanent
immigration benefits," or automatically provide work
authorization). In fact, a removal case can be reopened and CAT
withholding terminated if there is a "change in circumstances
relating to the . . . claim." 8 C.F.R. § 208.24(b)(1); see also
Nasrallah, 140 S. Ct. at 1691 ("An order granting CAT relief means
only that, notwithstanding [an] order of removal, the noncitizen
may not be removed to the designated country of removal, at least
until conditions change in that country.").
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unsuccessfully contested jurisdiction over this issue in other
cases and has intentionally abandoned that argument in this case.
See Sacirbey v. Guccione, 589 F.3d 52, 64 n.16 (2d Cir. 2009)
(reviewing circuit rulings). Nor do we see, sua sponte, any
compelling reason not to exercise jurisdiction under the second
prong of Fernandez v. Phillips, 268 U.S. 311 (1925). As the
Supreme Court explained in that case: "[H]abeas corpus is
available only to inquire whether the magistrate had jurisdiction,
whether the offense charged is within the treaty and, by a somewhat
liberal extension, whether there was any evidence warranting the
finding that there was reasonable ground to believe the accused
guilty." Id. at 312. "[W]hether the offense charged is within
the treaty" requires an analysis of what the offense charged is
-- or whether any offense has been charged at all (not to mention
whether a formal charge is necessary). See Noeller v. Wojdylo,
922 F.3d 797, 805 (7th Cir. 2019) (treating a challenge to the
warrant at issue "as a challenge within the second category of
permissible challenges under [Fernandez], whether the offense
charged falls within the treaty, which we have understood as
including whether the treaty's documentary requirements have been
met"); Sacirbey, 589 F.3d at 63–69 (evaluating whether a formal
charge was required and considering it the court's "duty to ensure
that the applicable provisions of the treaty and the governing
American statutes are complied with" under Fernandez (alteration
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omitted) (quoting United States ex rel. Petrushansky v. Marasco,
325 F.2d 562, 565 (2d Cir. 1963))); see also Trinidad y Garcia,
683 F.3d at 1009 (Kozinski, J., dissenting in part) (characterizing
the limited scope of review under Fernandez to include "whether
the executive branch has the authority to detain the extraditee in
the first place and whether the judicial branch has exercised
proper jurisdiction over him").
Nor has the United States argued that this set of claims
fails to allege an injury in fact. We agree that there is an
"immedia[te] and real[]" controversy as to the probable cause and
documentation issues that Aguasvivas raises, because he would not
be subject to detention but for the magistrate judge's challenged
certification that the documentation was proper and that probable
cause existed. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S.
270, 273 (1941)). And even though these issues could be mooted if
the Secretary decides that Aguasvivas should not be extradited,
that possibility of eventual relief does not change the fact that
the Secretary seeks to have Aguasvivas detained now.
2.
So we turn to the merits of Aguasvivas's argument --
accepted by the district court -- that the request for extradition
does not comply with the basic documentary requirements of the
treaty. That determination turned on an interpretation of the
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Extradition Treaty's Article 7, titled "Extradition Procedures and
Required Documents." Paragraph 2 of Article 7 requires, among
other things, that "[a]ll extradition requests shall be supported
by . . . information describing the facts of the offense or
offenses [and] the text of the law or laws describing the offense
or offenses for which extradition is requested." Extradition
Treaty art. 7, § 2. Paragraph 3 then specifies that "[i]n addition
to the requirements in paragraph 2 . . ., a request for extradition
of a person who is sought for prosecution shall also be supported
by:"
(a) a copy of the warrant or order of
arrest or detention issued by a judge or other
competent authority;
(b) a copy of the document setting forth
the charges against the person sought; and
(c) such information as would provide a
reasonable basis to believe that the person
sought committed the offense or offenses for
which extradition is requested.
Extradition Treaty art. 7, § 3.10
Aguasvivas contends that the request for his extradition
failed to satisfy these documentary requirements for two reasons:
(1) the warrant was not a warrant for his arrest or detention
because it did not name him; and (2) the request did not include
10
We refer only to the official English-language version of
the Treaty. See Extradition Treaty art. 9 (requiring all
extradition documents to be translated into the language of the
"Requested Party"); cf. 48 U.S.C. § 864 (requiring all proceedings
in the District Court of Puerto Rico to be conducted in English).
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"the document setting forth the charges" against him. We address
each argument in turn.
a.
The Dominican Republic submitted a translated copy of
the warrant for the arrest of Aguasvivas. It reads in part:
"[T]he judge . . . can ordain the arrest
of a person when . . . his presence is
necessary and there is evidence to reasonably
maintain that he is the perpetrator or
accomplice of an offense, that he can hide,
leave or escape from the place[,]" and "when
the person after being summoned to appear
. . . does not do that, and his presence is
necessary during the investigation or
knowledge of an infringement. . . ."
[This warrant o]rdains the arrest against
CRISTIAN STARLING AGUASVIVAS aka MOMON and
FRAN AGUASVIVAS aka EL COJO, according to the
request filed by the licentiate FELIX SANCHEZ,
Deputy Prosecutor of Judicial District of
Peravia . . . .
(quoting Dom. Rep. Code Crim. P. arts. 224, 225).
Aguasvivas points out that the warrant botches his name
-- entirely omitting his first name ("Cristian") and in its place
using only a misspelling of his middle name ("Estarling" instead
of "Starling") -- though the version translated to English
inexplicably gets it right (and the difference is not a simple
matter of translation). But extradition law discourages reliance
on mere technicalities to impede the joint efforts of the treaty
parties to extradite. See Fernandez, 268 U.S. at 312 ("Form is
not to be insisted upon beyond the requirements of safety and
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justice."); Bingham v. Bradley, 241 U.S. 511, 517 (1916)
(disfavoring defenses "savor[ing] of technicality" in extradition
proceedings). And there is no dispute -- even by Aguasvivas --
that he is the person described in the warrant, which is
accompanied by an affidavit that also describes him and includes
his picture.11
The Supreme Court has previously found that an arrest
warrant was invalid when it used an entirely incorrect first name
("James" versus "Vandy M."). See West v. Cabell, 153 U.S. 78, 85
(1894) ("[A] warrant for the arrest of a person charged with crime
must truly name him, or describe him sufficiently to identify
him."). Here, however, the reasonable inference from the warrant's
misspelling is that the police thought Aguasvivas's middle name
was his first name, and then spelled that name wrong. See Gero v.
Henault, 740 F.2d 78, 83 (1st Cir. 1984) (upholding a warrant that
listed the defendant's real name and alias, but in reverse order,
noting that it was clear that the police knew that the defendant
used both names). This is a far cry from an arrest warrant that
mistakes the identity of the party sought. So although we view
11
While Aguasvivas does not argue that he is not the person
intended to be described in the warrant, he does contend that the
use of the wrong name at one point led to the arrest of the wrong
person, Richard Estarlin Aguasvivas. While Aguasvivas submitted
a letter under Rule 28(j) suggesting that Dominican agents were
seeking another person in the lead-up to his attempted arrest, the
letter does not suggest that the warrant submitted in the
extradition case does not identify him.
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the mistranslation of the warrant as troubling, it was not error
for the magistrate to rely on the warrant despite the misspelling
of Aguasvivas's name in the original, Spanish version.12
b.
The bigger problem arises from the omission in the
extradition request of any indictment or the like. To be more
precise, such a document was not simply omitted -- it does not
exist at all, as the parties agree that the Dominican prosecutor
has yet to seek an indictment (called an "acusación" in the
Dominican Republic). Nor does any party dispute that the criminal
code of the Dominican Republic provides for the initiation of an
extradition request when a person against whom an indictment has
been presented is in a foreign country. See Dominican Code of
Criminal Procedure ("DCCP") Art. 161. Aguasvivas argues that
Dominican law actually requires that an indictment precede seeking
extradition from any country, but that contention is disputed, and
we defer to that extent to the Dominican government's construction
of its own law as not requiring any step or document that the
12 Of course, the rule that "federal court proceedings must
be conducted in English," United States v. Rivera-Rosario, 300
F.3d 1, 5-6 (1st Cir. 2002); see also Extradition Treaty art. 9
(requiring all extradition documents to be translated into the
language of the "Requested Party"); cf. 48 U.S.C. § 864 (requiring
all proceedings in the District Court of Puerto Rico to be
conducted in English), cannot excuse the government's use of name-
altering translations. We simply find that the errors in the
Spanish-language warrant here were not sufficient to invalidate
it.
- 21 -
treaty does not require. Cf. Grin v. Shine, 187 U.S. 181, 190-91
(1902) (refusing to consider a challenge to the validity of a
foreign arrest warrant). Similarly, while the Dominican
prosecutor's affidavit accompanying the extradition request
explains that a prosecutor in the Dominican Republic may in the
course of an investigation obtain an arrest warrant before deciding
whether or not to bring any charges,13 nothing in the affidavit
states that a prosecutor cannot indict before executing an arrest
warrant. The prosecutor's affidavit also suggests that charges
may be lodged in the Dominican Republic by a criminal complaint
made out by a victim. But the affidavit does not claim that any
criminal complaint has yet been lodged against Aguasvivas.
13 Under the heading "Criminal Procedure in the Dominican
Republic," the prosecutor's affidavit reports that:
If the accused has escaped, the
prosecutor asks the judge for a warrant for
his arrest. As soon as the suspect is
arrested, the prosecutor in charge of
prosecuting the case, will interview him in
the presence of his defense counsel; if the
accused can not afford a defense lawyer, the
State will provide one. Within 48 hours, the
accused is presented by the prosecutor to the
investigating judge, in order that he decides
on the measure of coercion that must be
applied to the accused.
The prosecutor decides whether or not to
bring charges according to the merits of the
evidence available.
- 22 -
For our purposes the salient point is that as best this
record shows neither the United States nor the Dominican Republic
disputes that Dominican law certainly allows for an indictment or
a criminal complaint as a precursor to an extradition request. So
here we have an application for extradition that includes no
indictment or criminal complaint only because no complaint exists
and apparently no indictment has even been sought. In short, this
case concerns a request to extradite for arrest and questioning in
anticipation of a possible, yet-to-be-determined prosecution.
This all brings us back to the text of the treaty. See
United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) ("In
construing a treaty . . . we first look to its terms to determine
its meaning."); Restatement (Fourth) of Foreign Relations Law
§ 306 (Am. Law Inst. 2018) ("A treaty is to be interpreted in good
faith in accordance with the ordinary meaning to be given to its
terms in their context and in light of its object and purpose.").
If the treaty's text is ambiguous and reasonably accommodates the
United States' construction, we defer to that construction whether
or not it is a construction we would adopt de novo. See Kin-Hong,
110 F.3d at 110 ("[E]xtradition treaties, unlike criminal
statutes, are to be construed liberally in favor of
enforcement . . . ."); Factor v. Laubenheimer, 290 U.S. 276, 293–
94 (1933) ("[I]f a treaty fairly admits of two constructions, one
restricting the rights which may be claimed under it, and the other
- 23 -
enlarging it, the more liberal construction is to be preferred.").
Conversely, if the textual meaning is plain and cannot reasonably
bear the government's construction, then we must reject that
construction. Greci v. Birknes, 527 F.2d 956, 960 (1st Cir. 1976)
(declining to accept the State Department's interpretation where
the language of the treaty to the contrary was "plain").
The United States' textual argument focuses on the
phrase "the document setting forth the charges." Most persons
familiar with criminal procedure would read that phrase as
referring to either an indictment, a criminal complaint, or in
some circumstances in this country, an information. In this case,
the United States does not argue that the Dominican extradition
request includes any one of these three types of documents.
Rather, the United States argues that the warrant can do "double
duty," serving as both the warrant and as "the document setting
forth the charges." As to why we should regard the warrant as
"the document setting forth the charges," the United States offers
a single argument:
The Dominican arrest warrant . . . satisfies
the plain terms of Article 7.3(b) of the
Treaty. It describes the criminal acts that
Aguasvivas is alleged to have committed and
lists the Dominican statutes that Aguasvivas
is alleged to have violated. It therefore
qualifies as "the document setting forth the
charges against the person sought."
We see six textual problems with this argument.
- 24 -
First, and most importantly, were the United States
correct, then the entirety of paragraph 3(b) (requiring "the
document setting forth the charges") would be entirely
superfluous. In every case, the warrant would perform the
government's version of double duty. The government, after all,
makes no argument that Dominican or United States warrants of
arrest or detention would ever fail to do what the United States
says is necessary to do double duty as the document setting forth
the charges. In the United States, for example, arrest warrants
must "describe the offense charged." Fed. R. Crim. P. 4(b)(1)(B);
see also 1 Federal Practice and Procedure: Criminal §§ 51, 54 (4th
ed. 2020) (describing requirements of form for warrants issued
pursuant to Rules 4 and 9); 5 Am. Jur. 2d Arrest § 21 (2d ed. 2020)
(collecting state and federal cases requiring that arrest warrants
describe the offense charged). Indeed, one of the purposes served
by an arrest warrant is to give notice of the alleged offense for
which probable cause has been found. Jaben v. United States, 381
U.S. 214, 218–19 (1965) ("Notice to a criminal defendant is usually
achieved by service upon him of the summons or arrest warrant
. . . ."). And the United States makes no claim that arrest
warrants in the Dominican Republic differ in this regard.14
14 Nor does the United States argue that "order[s] of arrest
or detention" can both issue prior to indictment and fail to
describe the offenses.
- 25 -
Certainly, the Dominican warrant in this case describes the
offenses for which the issuing official has found sufficient cause.
Our dissenting colleague posits that a warrant to search
for and seize "a person to be arrested" under Federal Rule of
Criminal Procedure 41(c)(4) need not contain such information, but
points to no example of an arrest or detention pursuant to such a
warrant (rather than a Rule 4 warrant). The United States itself
makes no such argument (either in the district court or before
us). And even were we to accept the possibility that a warrant
silent as to the offense could authorize arrest or detention, the
"missing" information required by the United States' "double duty"
interpretation would always be supplied by the Paragraph 2
required information.15 So, whichever way you look at it, either
the warrant by itself or certainly the warrant and the paragraph 2
information would in 100 percent of the cases supply everything
that the United States claims is necessary, and thus do the
requisite double duty, rendering Article 7.3(b) entirely
superfluous.
Second, this is a treaty between two countries that both
customarily employ warrants to arrest and separate documents to
15
Paragraph 2 requires "[i]n addition to" the documents
required by Paragraph 3 "information describing the facts of the
offense or offenses . . . [and] the text of the law or laws
describing the offense or offenses for which extradition is
requested."
- 26 -
charge. When two experienced anglers refer to their "casts," we
don't envision them making movies. Similarly, when these two
countries refer in separately set-off sub-paragraphs to the
warrant and to "the document setting forth the charges," (emphasis
added), we envision something more than a warrant procured by a
prosecutor who has not yet decided to bring charges.
Third, a warrant, unlike an indictment, fails to
indicate that the subject is wanted for prosecution.16 Under this
treaty, the difference matters. Article 1 of the Extradition
Treaty states that it is intended to provide for extradition of
people "sought by the Requesting Party from the Requested Party
for prosecution" (emphasis added). Article 7.3 itself describes
the required documentation as support for "a request for
extradition of a person who is sought for prosecution." This plain
language expressly describing the role played by "the document
setting forth the charges" reinforces the notion that Article 7 of
the Treaty does not call for the extradition of a person wanted
for questioning regarding a possible but not yet charged
prosecution.
Fourth, we examine the text of this treaty against the
backdrop of judicial interpretations of other treaties. Long
16The United States does not report that the Dominican
Republic argues otherwise or that the rule of non-inquiry precludes
us from drawing this conclusion.
- 27 -
before this treaty was concluded, two circuit courts had considered
whether a treaty required presentation of an indictment or the
like in support of an extradition request. See Emami v. U.S. Dist.
Ct., 834 F.2d 1444, 1448–49 (9th Cir. 1987); In re Assarsson, 635
F.2d 1237, 1240-43 (7th Cir. 1980). In rejecting the contention
that the applicable treaty conditioned extradition on the filing
of formal charges, each court pointed out that the treaty's list
of required documents contained no reference to any formal document
evidencing charges being brought. The lists included, instead,
the warrant. Emami, 834 F.2d at 1448 n.3; Assarsson, 635 F.2d at
1243. The Seventh Circuit reasoned that, "[i]f the parties had
wished to include the additional requirement that a formal document
called a charge be produced, they could have so provided."
Assarsson, 635 F.2d at 1243. We readily agree with the holdings
and the rationale in both Emami and Assarsson. So we could rule
for the government in this case were the language of this treaty
materially similar to the language of those treaties.
The treaty in this case, though, adds to the list of
required documents a requirement that was missing in those earlier
treaties: "the document setting forth the charges." For that
reason, our agreement with the holdings in Emami and Assarsson
provides no succor for the United States in this case. Indeed,
given that the State Department is presumably familiar with the
various treaty forms that it has adopted and with circuit law
- 28 -
construing those forms, the contrast between this treaty and the
treaties in those cases strongly suggests that the addition of
§ 3(b) was intended to call for the production of more than just
a warrant.
This reasoning moves even closer to home when we consider
the fifth textual problem with the government's argument, this
Treaty's departure from the language in the pre-existing, 1909
extradition treaty with the Dominican Republic. That treaty, like
the treaties at issue in Assarsson and Emami, also had no
requirement to include the document setting forth the charges.
Extradition Convention art. XI, Dom. Rep.-U.S., June 19, 1909,
36 Stat. 2468 ("If, however, the fugitive is merely charged with
crime, a duly authenticated copy of the warrant of arrest in the
country where the crime was committed, and of the depositions upon
which such warrant may have been issued, shall be
produced . . . ."). When, subsequent to Assarsson and Emami, the
Dominican Republic and the United States added to the list of
required documents "the document setting forth the charges," a
strong inference arose supporting the conclusion that this treaty
requires more than an arrest warrant describing a suspected but
yet-to-be charged crime.
Finally, this inference only grows stronger when we
compare this treaty's supporting document requirements to those
present in other recent treaties. After Assarsson and Emami and
- 29 -
prior to this treaty's conclusion, the State Department
demonstrated that it knew how to make the production of a document
other than an arrest warrant optional. The extradition treaty
between the United States and Austria, for example, provides that
"[a] request for extradition of a person who is sought for
prosecution shall be supported by" "a copy of the warrant or order
of arrest" and "a copy of the charging document, if any."
Extradition Treaty, Austria-U.S. art. 10, § 3, Jan. 8, 1998,
T.I.A.S. No. 12916 (emphasis added); see also Protocol Amending
the Convention between the United States of America and Israel of
December 10, 1962, Isr.-U.S., art. 6, July 6, 2005, T.I.A.S.
No. 07-110 (amending Article X of the countries' extradition
treaty to include the same language). This language plainly
recognizes that there is a type of document in addition to the
warrant that is known as a charging document. And that language
also grants permission to proceed without that other document if
it does not exist. The treaty before us preserves that recognition
that there is some document that does more than a warrant does,
but it eliminates the permission to proceed without such a
document. This change would not have been made had the United
States been willing to extradite to the Dominican Republic persons
(including its citizens) based only on a warrant.
As best we can tell, no other United States extradition
treaty uses the same relevant language as does the treaty with the
- 30 -
Dominican Republic. The treaty that comes closest, the Chile-
United States Extradition Treaty, preexisted this treaty and
requires a warrant and "a document setting forth the charges."
See Extradition Treaty, Chile-U.S., art. 8, § 3(b), June 5, 2013,
T.I.A.S. No. 16-1214. The next-closest agreements are those with
Belize, Saint Kitts and Nevis, Saint Vincent and the Grenadines,
Grenada, and Saint Lucia, all of which also preexist this treaty
and none of which requires "the document setting forth the
charges." See Extradition Treaty, Belize-U.S., art. 6, § 3(b),
Mar. 30, 2000, T.I.A.S. No. 13,089; Extradition Treaty, St. Kitts
& Nevis-U.S., art. 6, § 3(b), Sept. 18, 1996, T.I.A.S. No. 12,805;
Extradition Treaty, St. Vincent-U.S., art. 6, § 3(b), Aug. 15,
1996, T.I.A.S. No. 99-908; Extradition Treaty, Gren.-U.S., art. 6,
§ 3(b), May 30, 1996, T.I.A.S. No. 99-914.1; Extradition Treaty,
St. Lucia-U.S., art. 6, § 3(b), Apr. 18, 1996, T.I.A.S. No. 00-
202. The parties cite no precedent concerning those treaties.
Whether the United States' "double duty" theory would work with
those treaties without rendering an entire paragraph superfluous,
we need not decide. Rather, the arguably pertinent point is that
in this treaty alone "a document setting forth the charges" is
changed to "the document setting forth the charges."
We have also considered the arguments of our dissenting
colleague, which rely heavily on cases construing the interstate
extradition statute, or cases construing other treaties. We find
- 31 -
nothing in those cases inconsistent with our holding here. Neither
the interstate extradition statute nor the treaties in those cases
called for a warrant and "the document setting forth the charges."
Instead, in one manner or another they simply required that the
person sought for extradition have been "charged," which we agree
in that context could be construed "in the broad and practical
sense," Pierce v. Creecy, 210 U.S. 387, 402 (1908), as not
requiring more than one would find always in an arrest warrant.
In none of these cases was the court asked by the government to
construe a requirement that "A and B be filed" as meaning that
only "A be filed."
Our dissenting colleague also speculates that "an order
of detention" refers always and only to something that compels the
detention of a person who has not been indicted. Hence, reasons
our colleague, there could never be an extradition based on an
order of detention if an indictment were required. The United
States itself advances no such argument. Nor does it point to any
basis for such an unsupported (and unasserted) assumption that
orders of detention can never be accompanied by indictments.
In sum, we find that the text of the treaty, even when
viewed through a lens of liberal construction favoring
extradition, will not accommodate the United States'
interpretation. Most notably, that construction would render
superfluous a relatively bespoke requirement added to this treaty,
- 32 -
the absence of which requirement in other preexisting treaties was
twice noted as significant by circuit courts before this treaty
was written.
A final note on the charges: At oral argument, counsel
for the United States acknowledged that because of the rule of
specialty, any offense not listed in the document satisfying the
requirement established in Article 7.3(b) cannot be certified for
extradition. See United States v. Tse, 135 F.3d 200, 204 (1st
Cir. 1998) ("The doctrine of specialty is grounded in international
comity and generally requires that a requesting country not
prosecute a defendant for offenses other than those for which
extradition was granted."); United States v. Saccoccia, 58 F.3d
754, 766 (1st Cir. 1995) ("The principle of specialty . . .
generally requires that an extradited defendant be tried for the
crimes on which extradition has been granted, and none other."
(internal citations omitted)). Here, the arrest warrant does not
list Article 379 of the Dominican Code, which criminalizes a form
of robbery. Article 379 is included in the extradition request,
however, and the magistrate certified it for extradition.
Certification and Committal for Extradition at 3, In re Extradition
of Cristian Starling Aguasvivas, No. 17-mj-04218 (D. Mass. Dec.
11, 2018), ECF No. 78. The government avers that the difference
between the offense listed in the extradition request and that
listed in the arrest warrant (Article 309) amounts to no more than
- 33 -
a typo, and the magistrate judge agreed. But Article 309 is an
entirely distinct offense under the Dominican Code, so it is
difficult to simply assume that its presence in the arrest warrant
was a typo. As a result, even if we found the documentation
sufficient to certify on the other charges, we would vacate the
certification of Article 379 specifically.
C.
Finally, Aguasvivas argues that there is not probable
cause to believe he committed the crimes alleged by the Dominican
Republic. We address this issue only because it is likely to arise
again if the Dominican prosecutor intends at some point to file
and supply "the document setting forth the charges." See, e.g.,
Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990)
(addressing issues "raised by the parties which [were] likely to
recur"). On habeas review of a magistrate's certification of
extraditability, we look only to whether the magistrate's
determination of probable cause was supported by "any evidence."
Kin-Hong, 110 F.3d at 116; Fernandez, 268 U.S. at 312 (authorizing
the habeas court to review "whether there was any evidence
warranting the finding that there was reasonable ground to believe
the accused guilty"). "This circuit has interpreted the 'any
evidence' standard quite literally, conducting a fairly
deferential review of the magistrate's findings." Kin-Hong, 110
- 34 -
F.3d at 116-17 (citing Koskotas v. Roche, 931 F.2d 169, 176 (1st
Cir. 1991); Manzi, 888 F.2d at 205).
Under that standard, the district court's analysis was
largely correct: The magistrate certainly had at least some
evidence to conclude that Aguasvivas might have been guilty of
shooting at the agents who attempted to arrest him. Firstly,
Dominican prosecutor Feliz Sanchez Arias reported that the two
surviving officers identified a photograph of Aguasvivas as the
shooter.17 And secondly, a video of the shooting on YouTube --
while it does not actually show Aguasvivas shooting anyone -- does
not show that he could not have done so. A medical report states
that the bullets entered Ubri in the front, while the video plainly
17 The affidavit is not perfectly clear on the
identification, given that it first identifies a photograph as the
photograph of Cristian Aguasvivas and then states that the
eyewitnesses were qualified to identify Aguasvivas because they
saw him shoot Ubri but never explicitly that they identified the
person in the photo as the shooter. However, the chain of logic
seems to extend to that point: The agents saw the shooting, and
believed Aguasvivas -- the man in the photograph -- committed it.
Additionally, evidence at an extradition hearing "may consist
of hearsay, even entirely of hearsay." Kin-Hong, 110 F.3d at 120
(citing Collins v. Loisel, 259 U.S. 309, 317 (1922)). Aguasvivas
argues that these statements are "not even hearsay" because "there
is no declarant." It is true that the affidavit is not clear on
whether the officers made the identification directly to Sanchez
Arias or whether he learned of the identification through someone
else. But the fact that the exact chain of knowledge is not
identified does not change the fact that this is competent hearsay
evidence admissible at an extradition hearing.
- 35 -
places Aguasvivas immediately in front (and within a foot or so)
of Ubri when he was shot.
Of course, there is also a considerable amount of
conflicting evidence. The autopsy report seems to assume that
someone other than Aguasvivas must have committed the shooting,
states that Ubri was killed by a "[d]istant" wound,18 and suggests
that the third shot entered Ubri in the "anterior region" of his
left arm. Additionally, the government has admitted that
Aguasvivas was handcuffed (albeit with hands in front) while the
shots were fired.
As both the district court and Aguasvivas have pointed
out, this circuit noted in 1997 that its light-touch approach to
the "any evidence" standard may have been out of keeping with the
more searching approaches of other circuits, Kin-Hong, 110 F.3d at
117 ("Recently, some other appellate courts, while retaining the
traditional formulation, have apparently engaged in a more
rigorous review of the evidence presented before the judicial
officer, thus raising questions about the actual content of the
'any evidence' standard."), and that the scope of habeas review
had broadened somewhat in other ways since the "any evidence"
standard was set out in Fernandez, id. ("[H]abeas corpus in other
18
The magistrate judge wrote that the bullets were "fired
at short range." We have not been able to locate a source for
that contention.
- 36 -
contexts has expanded to become a 'second look' at most substantive
and procedural issues."). However, as in Kin-Hong, we need not
resolve this issue here. The eyewitness testimony, though
presented through hearsay, in combination with the video, makes
clear that the magistrate had evidence to conclude that there was
a reasonable ground to believe Aguasvivas guilty. Determining
whether he is in fact guilty is a task we would leave for the
Dominican court system.
III.
For the foregoing reasons, the decision of the district
court is affirmed as to the insufficiency of the documentation to
support an extradition request under Article 7 of the treaty and
affirmed as to the sufficiency of the probable cause determination,
but reversed as to Aguasvivas's collateral estoppel claim. We
remand for further proceedings consistent with this decision.
– Concurring and Dissenting Opinion Follows –
- 37 -
LYNCH, Circuit Judge, concurring in part and dissenting
in part. I join the holdings in the majority opinion finding
collateral estoppel inapplicable, finding that the warrant was
sufficient as to the naming of Aguasvivas, and upholding the
probable cause determination. I dissent from the affirmance of
the grant of habeas corpus on the basis that the documentation
provided does not meet the requirements of the extradition treaty.
I fear the majority opinion will undermine the purpose and letter
of the treaty and the repercussions of its ruling will extend far
beyond this case.
The extradition treaty at stake states that:
2. All extradition requests shall be supported
by:
(a) documents, statements, or other types
of information that describe the
identity, nationality, and probable
location of the person sought;
(b) information describing the facts of
the offense or offenses and the
procedural history of the case;
(c) the text of the law or laws
describing the offense or offenses for
which extradition is requested and the
applicable penalty or penalties; . . .
(e) the documents, statements, or other
types of information specified in either
paragraph 3 or paragraph 4 of this
Article, as applicable.
3. In addition to the requirements in
paragraph 2 of this Article, a request for
extradition of a person who is sought for
prosecution shall also be supported by:
- 38 -
(a) a copy of the warrant or order of
arrest or detention issued by a judge or
other competent authority;
(b) a copy of the document setting forth
the charges against the person sought;
and
(c) such information as would provide a
reasonable basis to believe that the
person sought committed the offense or
offenses for which extradition is
requested.
Extradition Treaty ("Extradition Treaty"), Dom. Rep.-U.S., art. 7,
§§ 2-3, Jan. 12, 2015, T.I.A.S. No. 16-1215.
The majority holds that the requirement that the
Dominican Republic provide "the document setting forth the
charges" under Article 7, § 3(b) has not been met. It makes six
textual arguments -- most of which were not made by Aguasvivas --
to justify rejecting the government's position that a warrant can
be used as "the document setting forth the charges." In doing so,
the majority concludes that a warrant cannot do "double duty,"
fulfilling the requirements of Article 7, § 3(a) and (b)
simultaneously.
I disagree with the result the majority reaches, which
is based on incorrect and singular reasoning. The plain language
of the Extradition Treaty does not require two documents, and the
warrant is sufficient to meet the terms of § 3(b). The
- 39 -
government's interpretation of the treaty is reasonable, and the
documents presented here comply with the treaty.
I would hold that the treaty unambiguously permits a
warrant to serve as "the document setting forth the charges" as
long as it adequately describes the charges against the accused.
And even if the treaty were ambiguous, the canons favoring a
"liberal construction" of treaty obligations coupled with the
agreement between the United States and the Dominican Republic
that the provided documents fulfill the terms of the treaty produce
an inescapable conclusion that a warrant alone can satisfy both
treaty requirements. I would also hold that the warrant provided
in this case adequately stated the charges against Aguasvivas and
serves as "the document setting forth the charges" against him
under Article 7, § 3(b).
I.
I begin by reviewing the documents provided in support
of extradition. Though the majority does not dwell on the
particulars of the documents, a review of their text is essential
to determining whether the Dominican government has adequately set
forth charges against Aguasvivas. Both the Dominican Republic and
the United States have provided documents supporting Aguasvivas's
extradition.
The Dominican embassy's extradition request states that
the Dominican Republic seeks Aguasvivas "to respond to the charges
- 40 -
against him of Association of malefactors, robbery, murder and
illegal possession of firearms." The embassy clarifies that
Aguasvivas "is charged with the violation of Articles 265, 266,
379, 383, 295 and 304 of the Dominican Criminal Code and Article
39, Paragraph III of Law 36 about Trade and Possession of
Firearms." The extradition request also attaches the affidavit of
Dominican Prosecutor Feliz Sanchez Arias and a copy of the warrant
authorizing Aguasvivas's arrest.
Prosecutor Sanchez Arias's affidavit sets forth the
accusations against Aguasvivas and provides background on
Dominican criminal procedure. Prosecutor Sanchez Arias states
that he is "in charge of the criminal case that accuses . . .
Aguasvivas . . . of crimes of association of malefactors, robbery,
murder and illegal possession of firearms . . . sanctioned by the
articles 265, 266, 379, 383, 295 and 304 of the Dominican Criminal
Code and article 39, paragraph III of Law 36 about Trade and
Possession of Firearms." He reiterates that Aguasvivas "is accused
of" and "must respond for the violation of . . . the Dominican
Criminal Code, and . . . Law 36 about Trade and Possession of
Firearms." Based on these accusations, an arrest warrant was
issued. According to Sanchez Arias, the warrant remains "in force,
valid and enforceable." Though he has not sought an indictment,
Sanchez Arias explains that in his experience, "[i]f the accused
has escaped, the prosecutor asks the judge for a warrant for his
- 41 -
arrest," and that after the accused is apprehended, "the accused
is presented by the prosecutor to the investigating judge, in order
that he decides on the measure of coercion that must be applied to
the accused." Sanchez Arias concludes that "[c]onsidering the
evidence that exists on this case, [he] has the conviction that if
[Aguasvivas] is extradited to the Dominican Republic, he shall be
sentenced in criminal trial by the crimes he is charged."
The arrest warrant, which was issued by a judge of the
Dominican Republic authorized to issue such warrants, begins by
describing the accusations against Aguasvivas. The warrant
specifies that Aguasvivas is sought for arrest because he "disarmed
and fired three shots to the agent LORENZO UBRI MONTERO causing
his dea[th]," "seriously injured with firearms the agents of the
National Directorate for Drug Control," and "disarmed . . . agents
of the National Directorate for Drug Control who were participating
in the anti-drug operation." As a result of these acts, Aguasvivas
is "accused of violation of the articles 265, 266, 295, 304 and
309 of the Dominican Criminal Code and article 39 of Law 36 on
Trade and Possession of Firearms." The judge states that based on
the evidence presented by the prosecutors, "the accused are the
perpetrators of the accusation, and that they can run away, so it
is appropriate to grant the authorization for their arrest." The
warrant authorizes the detention of Aguasvivas for no more than
- 42 -
twenty-four hours unless the prosecutor requests an additional
"coercive measure" from the court.
The United States has provided both a complaint seeking
Aguasvivas's extradition and a statement from the Office of the
Legal Advisor describing the United States' position on the proper
interpretation of the Extradition Treaty. The complaint filed by
the U.S. Attorney both lays out the government's treaty obligations
to the Dominican Republic and confirms that "[a]ccording to the
information provided by the Government of the Dominican Republic,
AGUASVIVAS is charged with murder, aggravated robbery, conspiracy,
and illegal firearm possession." The U.S. Attorney also states
that Aguasvivas "would be likely to flee" if faced with a warrant
for his arrest.
The Office of the Legal Adviser states that "Article
7.3(b) supplements Article 7.3(a) by ensuring that the Requesting
State provide . . . the document that identifies the offenses with
which the accused is charged and sought for prosecution." (Emphasis
added.) "There is no requirement in Article 7, or elsewhere in
the Treaty, that the requesting country provide separate documents
to satisfy the requirements of Article 7.3(a) and (b)." The United
States also explains that it has "reviewed the Arrest Warrant for
Cristian Aguasvivas" and concluded that it "satisfies both Article
7.3(a) and Article 7.3(b) of the Treaty."
- 43 -
II.
When interpreting a treaty, we must begin "with the text
of the treaty and the context in which the written words are used."
E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (quoting
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699
(1988)). If a treaty is unambiguous, it must be applied as
written. See id. at 534-35; United States v. Li, 206 F.3d 56, 63
(1st Cir. 2000) (relying on non-textual sources "[t]o the extent
that the treaties' terms are ambiguous"). However, "treaties are
construed more liberally than private agreements, and to ascertain
their meaning we may look beyond the written words to the history
of the treaty, the negotiations, and the practical construction
adopted by the parties." E. Airlines, Inc., 499 U.S. at 535(quoting Air Fr. v. Saks, 470 U.S. 392, 396 (1985)). When a treaty
contains ambiguities, canons of treaty interpretation require us
to both give a treaty the "more liberal construction" when more
than one is possible and to construe an extradition treaty in favor
of enforcement. Factor v. Laubenheimer, 290 U.S. 276, 293–94
(1933). Interpretive canons also require us to reject defenses to
extradition that hinge on technicalities. See Fernandez v.
Phillips, 268 U.S. 311, 312 (1925). Finally, "[a]lthough not
conclusive, the meaning attributed to treaty provisions by the
Government agencies charged with their negotiation and enforcement
is entitled to great weight." Sumitomo Shoji Am., Inc. v.
- 44 -
Avagliano, 457 U.S. 176, 185 (1982); see also El Al Isr. Airlines,
Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) ("Because a
treaty ratified by the United States is . . . an agreement among
sovereign powers, we have traditionally considered as aids to its
interpretation . . . the postratification understanding of the
contracting parties." (quoting Zicherman v. Korean Air Lines Co.,
Ltd., 516 U.S. 217, 226 (1996))); GE Energy Power Conversion Fr.
SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1645-
46 (2020).
A.
I first consider whether the plain language of Article
7 permits the use of a single document to fulfill the requirements
of both Article 7, § 3(a) and (b). The plain text of the treaty
does not state that one document cannot meet both requirements.
The requirements are listed separately to clarify that both
requirements must be met, but that does not mean that two documents
are required. As long as the document provided meets the terms of
each individual requirement, the treaty terms are satisfied.
The majority's arguments to the contrary are
unconvincing. The majority argues that because both the United
States and the Dominican Republic use "warrants to arrest and
separate documents to charge," Article 7, § 3(b) must refer to
something different than an arrest warrant. Again, I disagree.
The particulars of how the Dominican Republic brings formal charges
- 45 -
have little bearing on whether an arrest warrant itself can set
forth charges and fulfill both treaty requirements. If the
drafters of the treaty wished to require something other than a
warrant under § 3(b), they could have done so by requiring
something like a "charging instrument."
The majority also argues that the United States'
construction of the treaty would render § 3(b) superfluous because
a warrant will always describe the offenses charged. This argument
is unpersuasive. Neither government agrees that the United States'
reading of § 3(a) would make § 3(b) superfluous. There is nothing
in the record to indicate that Dominican warrants always contain
a description of the offenses charged, and it is not our role to
investigate Dominican procedure. See Grin v. Shine, 187 U.S. 181,
184-85 (1902). Further, the United States argues that foreign
arrest warrants do not always set forth "any or all of the
charges." This warrant meets the terms of § 3(b), but not all
warrants necessarily will.
Looking to Article 7, §§ 2 and 3 together does not change
the analysis. The majority argues that because § 2 says that an
extradition request must include information describing facts of
the offense and the text of the relevant laws, § 3(b), which
requires a copy of the document setting forth the charges, would
necessarily be rendered surplus if the documents provided here
were adequate under the treaty. This argument was not made by
- 46 -
Aguasvivas and the government has not had any notice it had to
respond to this argument. In any case, the argument is
unpersuasive.
The portions of § 2 the majority says would be redundant
with § 3 list the information that must be included in an
extradition request, without any reference to what specific
documents should be included. Extradition Treaty, art. 7, § 2(a)-
(c). In contrast, Article 7, § 3 makes clear that the request
must include copies of the warrant and the appropriate document
setting forth the charges rather than just, for example, a letter
from the embassy containing all the information described in
§ 2(a)-(c). Thus, in cases where there is an indictment setting
forth the charges, § 3(b) says that a copy of the indictment should
be included in the extradition request. And where the document
setting forth the charges is a warrant, a copy of the warrant must
be included. There is no surplusage here. And even if there were
some redundancy, that would provide "only a clue" to the correct
interpretation of a text because "[s]ometimes the better overall
reading of the [text] contains some redundancy." Rimini Street,
Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019).
The majority's reference to Federal Rule of Criminal
Procedure 4 is also inapposite. Rule 4 governs the issuance of
arrest warrants or summons "on a [c]omplaint," and requires that
the warrant "describe the offense charged in the complaint." Fed.
- 47 -
R. Crim. P. 4(b)(1)(B) (emphasis added). But the majority's
argument is premised on the fact that the Dominican Republic has
not filed a criminal complaint against Aguasvivas. Analogizing
from our procedure to make conclusions about Dominican procedure
-- especially when Dominican procedure is obviously different here
-- is improper. See Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1449
(9th Cir. 1987) (stating that the court should "refrain from
interpreting the requirements of German criminal procedure both
out of respect for German sovereignty and because [the court]
recognize[d] the chance of erroneous interpretation"). And even
if we were to analogize to the United States' criminal procedure,
the warrant at issue here more closely resembles a Rule 41 warrant,
which allows officers to search for and seize a person without
filing a complaint when there is probable cause to arrest that
person. See Fed. R. Crim. P. 41. Although the warrant here
contains a description of the charges against the person sought,
a Rule 41 warrant does not have to include such a description.19
See id.19 The majority argues that Rule 41 is not relevant because
I have not identified an example of an arrest or detention pursuant
to such a warrant. This misunderstands the point. The point is
that we cannot extrapolate anything about the Dominican warrant in
this case from Rule 4, because a Rule 4 warrant presupposes that
the arrestee has already been formally charged with a crime. See
Fed. R. Crim. P. 4. In our system, an officer does not need a
warrant at all to arrest a person if there is probable cause.
Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Thus, Rule 41
warrants, which are meant to aid officers in making arrests even
- 48 -
B.
Next, this dissent evaluates whether Article 7, § 3(b),
which requires the requesting country to provide "the document
setting forth the charges," mandates that the requesting country
provide an indictment, complaint, or other separate charging
instrument.20
Black's Law Dictionary defines a "charge" as a "formal
accusation of an offense as a preliminary step to prosecution."
Black's Law Dictionary (11th ed. 2019). This definition
contradicts the majority's suggested reading that charges should
be brought by means of an "indictment or the like." Instead, any
document, including an arrest warrant, which details the crimes
and acts the defendant is accused of committing and moves towards
a prosecution can set forth charges under § 3(b).
The statute governing interstate extradition and caselaw
discussing that statute also indicate that "charges" should be
when no Rule 4 warrant has issued and there is no charging
instrument, are a better analog whether they are commonly used or
not. See Fed. R. Crim. P. 41 advisory committee's note to 1979
amendment (explaining that Rule 41 permits warrants to search for
a person subject to arrest "even though no arrest warrant has
theretofore issued.").
20 The majority refuses to specify what kind of document is
needed to fulfill § 3(b). It says that the document setting forth
the charges must "indicate that the subject is wanted for
prosecution," and must be "more than just a warrant.” The
majority suggests, but does not hold, that the document should be
an "indictment or the like."
- 49 -
interpreted broadly. 18 U.S.C. § 3182 states that "a copy of . .
. an affidavit made before a magistrate" can serve as the document
"charging the person demanded" with a crime for the purposes of
interstate extradition. No formal charging instrument is
required. See In re Strauss, 197 U.S. 324, 331-32 (1905) (holding
that the Constitution and 18 U.S.C. § 3182 allow extradition on an
affidavit even if that affidavit would not serve as a charging
document sufficient to initiate a trial).
Caselaw buttresses the conclusion that a person may be
"charged" with an offense even if no formal charging document has
issued. The Supreme Court has held that the word "charged" in the
Extradition Clause of the Constitution "ought to be understood"
"in the broad and practical sense." Pierce v. Creecy, 210 U.S.
387, 402 (1908); see also id. at 404–05 (explaining that "the word
'charged' was used in its broad signification to cover any
proceeding which a state might see fit to adopt, by which a formal
accusation was made against an alleged criminal" and thus that a
document which "unmistakably describe[d] every element of the
crime" was sufficient to show that "the accused was substantially
charged with [a] crime." (quoting In re Strauss, 197 U.S. at 331));
id. at 403 (noting that for interstate extradition, there is no
requirement of "a good indictment, or even an indictment of any
kind" because extradition "requires nothing more than a charge of
crime"). Specifically, the Supreme Court has held in the context
- 50 -
of interstate extradition that "a party is charged with [a] crime
when an affidavit is filed, alleging the commission of the offense,
and a warrant is issued for his arrest; and this is true whether
a final trial may or may not be had upon such charge." In re
Strauss, 197 U.S. at 331; see also id. at 332 ("Why should the
state be put to the expense of a grand jury and an indictment
before securing possession of the party to be tried?"); Rothgery
v. Gillespie County, 554 U.S. 191, 210 (2008) (holding that "an
initial appearance following a charge signifies a sufficient
commitment to prosecute regardless of a prosecutor's
participation, indictment, information, or what the County calls
a 'formal' complaint.").
Our sister circuits have similarly construed the term
"charged" broadly in extradition treaties. See In re Assarsson,
635 F.2d 1237, 1242 (7th Cir. 1980) (explaining that treaty
requirement that individual be "charged" was "used in the generic
sense only to indicate 'accused'"); In re Assarsson, 687 F.2d
1157, 1160, 1163 n.13 (8th Cir. 1982) (holding that treaty which
applied only to those "charged with or convicted" of an offense
did not condition extradition on the existence of formal charges);
Sacirbey v. Guccione, 589 F.3d 52, 67 (2d Cir. 2009) ("[W]e
interpret these provisions to mean that the proof required under
the Treaty to establish that an individual has been 'charged' with
a crime is a valid arrest warrant and the evidence submitted in
- 51 -
order to obtain that warrant."); Emami, 834 F.2d at 1448–49
(holding that formal charges were not required to show that
defendant had been "charged"). Against this background, the
requirement that the requesting party provide a document "setting
forth the charges" cannot be transmuted into a requirement that
the requesting party provide an "indictment or the like" rather
than a warrant setting forth the charges.
The cases relied upon by the majority further support
the conclusion that a warrant may serve as a document "setting
forth the charges." In Assarsson, a man was sought for extradition
by the Swedish government. 635 F.2d at 1239. Under the terms of
the treaty, Sweden could seek extradition of those who had been
"charged with or convicted of" a list of offenses specified in the
treaty. Id. at 1242. Assarsson argued that he had not been
"charged with" a crime because no formal charges had been brought
against him. See id. As in the instant case, the treaty specified
a list of documents required to support an extradition request.
Id. at 1243 n.7. The required documents included a "copy of the
warrant of arrest or other order of detention issued by the
competent authority of the requesting State," "a precise statement
of the criminal act with which the person sought is charged," and
"an authenticated copy of the texts of the applicable laws of the
requesting State." Id. The Seventh Circuit concluded that the
warrant was sufficient to show that Assarsson had been "charged"
- 52 -
under the terms of the treaty. Id. at 1242–43. The court explained
that the word "charged" was used in contrast to "convicted," and
thus was "used in the generic sense only to indicate 'accused.'"
Id. at 1242. Furthermore, "[s]ince the parties [to the treaty]
chose not to require production of the charge document, we can
easily infer that they did not require the 'substance' of a charge
either." Id. at 1243. The same reasoning applies here. There is
nothing in the treaty to suggest that the "charges" must be
anything more than accusations levied by the Dominican government.
The treaty does not on its face require a charging instrument, and
it is not appropriate for us to expand the Dominican Republic's
obligations under the treaty. See id. at 1241 n.5 ("[C]ourts
cannot expand the obligations of another nation under a treaty."
(citing Grin, 187 U.S. at 191–92)).
The majority attempts to distinguish Assarsson by
explaining that the treaty at issue required a warrant and a
statement of the "criminal act . . . charged," while the treaty at
issue here requires a warrant and "the document setting forth the
charges." The majority argues that "[w]hen, subsequent to
Assarsson . . . [the treating parties] added to the list of
required documents 'the document setting forth the charges,' a
strong inference arose supporting the conclusion that this treaty
requires more than an arrest warrant." This argument does not
hold. The majority makes too much of the modest differences in
- 53 -
the treaty language. As explained in Assarsson, "[i]f the parties
had wished to include the additional requirement that a formal
document called a charge be produced, they could have so provided."
Assarsson, 635 F.2d at 1243. I agree that the treaty could have
included a requirement for a formal charging document. But it
does not. And contrary to the majority's reasoning, a document
"setting forth the charges" is more akin to the statement of the
"criminal act . . . charged" as required by the Assarsson treaty
than to an indictment or other charging instrument. See id. at
1243 n.7.
The majority also relies on Emami. In Emami, the German
government sought to extradite Reza Emami for "detention for
investigation." 834 F.2d at 1446. Formal charges had not been
filed against Emami. Instead, the German government had issued an
arrest warrant for the purpose of detaining and interrogating
Emami. Id. at 1447. Emami first argued that he could not be
extradited before the filing of a formal public charge because the
treaty applied only to persons "who have been charged with an
offense or are wanted by the other Contracting Party for the
enforcement of a judicially pronounced penalty or detention
order." Id. at 1448 (emphasis added). Citing Assarsson, the court
rejected this notion, reasoning that the word "charged" was used
to distinguish between those accused and those already convicted
of an offense. Id. Further, the word "charged" had been "used as
- 54 -
a verb in the generic sense only to indicate 'accused'" and "could
not be transmuted into a requirement that 'charges,' a noun, be
filed." Id. (citing Assarsson, 635 F.2d at 1242-43). The court
explained that it was appropriate to inquire into whether a
defendant had been formally charged only if the treaty required a
copy of a formal charging document. Id. As the treaty only
required the requesting country to provide "[t]he text of all
applicable provisions of law of the Requesting State concerning
the definition of the offense," "[a] warrant of arrest," and "[a]
summary statement of the facts of the case unless they appear from
the warrant of arrest," the court would not inquire into whether
a formal charge existed. Id. at 1488 & n.3.
Emami next argued that he was not properly sought "for
prosecution" because Germany had not shown an adequate intent to
prosecute him. Id. at 1449. He contended that Germany had not
shown a commitment to prosecute because it had requested him "for
purposes of 'detention for investigation'" and had not filed
charges against him. Id. at 1448. The court rejected this
argument, explaining that it had "reservations against deciding
questions of German criminal procedure" and holding that Germany's
statement in its extradition request that Emami was wanted for
prosecution was sufficient to show that Emami was wanted for
prosecution under the terms of the treaty. Id. at 1449.
- 55 -
The majority's decision conflicts with both holdings.
As with Assarsson, the majority attempts to distinguish Emami on
the basis that the treaty at issue had different documentary
requirements. But the core holding of Emami is that the court
should not inquire into whether charges have been brought unless
the treaty unequivocally requires a charging document. The
extradition treaty at issue in this case does not require a
charging document, so we should recognize that any document that
sets forth the charges fulfills the requirement of § 3(b).
The majority's decision also flatly contradicts the
Emami court's holding that a foreign government's statement of
intent to prosecute is sufficient to show that a person is sought
"for prosecution." As in Emami, the Extradition Treaty provides
for the extradition of people sought "for prosecution" and the
Dominican Republic seeks to interrogate the suspect before the
filing of formal charges. See id. at 1448. Like in Emami, the
Dominican Republic has given clear signals that it intends to
prosecute Aguasvivas: the Dominican State Department specified
that it wishes to extradite Aguasvivas "to respond to the charges
against him," and the prosecutor "in charge of the criminal case
that accuses" Aguasvivas has concluded that "[c]onsidering the
evidence that exists on this case, [he] has the conviction that if
[Aguasvivas] is extradited to the Dominican Republic, he shall be
sentenced in criminal trial by the crimes he is charged."
- 56 -
Nevertheless, the majority insists that the requirement that
Aguasvivas be sought for prosecution means that more than an arrest
warrant is required. This holding both contradicts Emami and
undercuts the purpose of the treaty. In light of Emami and
Assarsson, the majority's ruling in this case will create a circuit
split suitable for Supreme Court review.
The additional arguments made by the majority do not
support its conclusion that the warrant does not adequately set
forth the charges against Aguasvivas.
The majority's fifth argument -- also not made by
Aguasvivas -- is that because the Extradition Treaty was drafted
after Emami and Assarsson, and the 1909 Extradition Treaty between
the Dominican Republic and the United States required only a
warrant, the addition of a requirement that the requesting party
provide the document setting forth the charges was meant "to call
for the production of more than just a warrant." I disagree with
this reasoning. First, as explained above, Emami and Assarsson
counseled the State Department that if it wanted an extradition
treaty to require a formal charging instrument, then it should
explicitly add such a requirement to the treaty. When, as here,
a later treaty does not contain such a requirement, then we should
not read it in. Second, the 2015 treaty replaced the entire text
of the 1909 treaty with different text very similar to a
significant number of extradition treaties between the United
- 57 -
States and other Caribbean and South American countries. See,
e.g., Extradition Treaty, Chile-U.S., art. 8, § 3(b), June 5, 2013,
T.I.A.S. No. 16-1214 (requiring "a document setting forth the
charges" to support an extradition request); Extradition Treaty,
Gren.-U.S., art. 6, § 3(b), Sept. 14, 1999, T.I.A.S. No. 99-914.1
(same); Extradition Treaty, St. Kitts & Nevis-U.S., art. 6, § 3(b),
Sept. 18, 1996, T.I.A.S. No. 12,805 (same). Thus, because the
text was based on other treaties, rather than an article by article
revision of the 1909 treaty, textual differences between the 1909
treaty and the 2015 treaty should not be given undue weight in
interpreting the 2015 treaty.
The majority's sixth argument -- also not made by
Aguasvivas -- is unconvincing. The majority argues that because
the Austrian and Israeli extradition treaties explicitly allow for
extradition when there is no "charging document," then we should
not read the Dominican extradition treaty to also allow for
extradition absent a charging document. This argument ignores
critical differences in language between those treaties and the
treaty at issue. The Austrian and Israeli treaties specifically
require a "charging document" if one exists rather than a more
general "document setting forth the charges." Extradition Treaty,
Austria-U.S., art. 10, § 3(b), Jan. 8, 1998, T.I.A.S. No. 12,916;
Protocol Amending the Convention between the United States of
America and Israel of December 10, 1962, Isr.-U.S., art. 6, July
- 58 -
6, 2005, T.I.A.S. No. 07-110. If anything, the fact that other
treaties use the phrase "charging document" suggests that "the
document setting forth the charges" should not be narrowly
interpreted to mean "the charging document."
Finally, in addition to the document setting forth the
charges, the treaty requires "a copy of the warrant or order of
arrest or detention issued by a judge or other competent
authority." Extradition Treaty, art. 7, § 3(a) (emphasis added).
While the warrant provided in this case is nominally an arrest
warrant, the warrant could also be understood as a warrant of
detention. As explained in the warrant, the Dominican Code of
Criminal Procedure allows a judge to issue warrants to detain
individuals for questioning. The record in this case shows that
Prosecutor Sanchez Arias seeks to detain Aguasvivas to interview
him before bringing formal charges, as Dominican procedure allows,
and the warrant only authorizes the prosecutor to detain Aguasvivas
for twenty-four hours for questioning. If the treaty were read to
require an indictment or complaint, that sequence would never be
permitted, despite the treaty's provision allowing for extradition
on a warrant or order of detention.21
21 Contrary to the majority's argument, I do not assume
that there could never be an extradition based on an order of
detention if a formal charging document were required by the
treaty. Rather, as the United States explains, Dominican procedure
allows the government to seek pre-indictment warrants and
extraditions to detain and question suspects. Thus, when the
- 59 -
In light of the plain text of the treaty and ample
precedent on the meaning of "charges," I would hold that the treaty
unambiguously permits any official document describing both the
criminal acts committed by the defendant and the laws violated by
the defendant to serve as a "document setting forth the charges."
I would also hold that the treaty unambiguously permits one
document to fulfill the requirements of both Article 7, § 3(a) and
Article 7, § 3(b). The majority's contrary holdings put this court
at odds with Supreme Court precedent and the decisions of our
sister circuits.
The arrest warrant for Aguasvivas adequately specifies
the laws Aguasvivas is accused of violating, describes the criminal
acts that Aguasvivas is charged with performing, and lists the
evidence supporting these charges. Thus, it is sufficient to set
forth the charges under the terms of the treaty.
C.
A finding that the treaty is ambiguous would lead me to
the same result. When a treaty is ambiguous, the parties'
reasonable interpretation is essentially binding on the court.
See Sumitomo Shoji Am., Inc., 457 U.S. at 185 ("When the parties
to a treaty both agree as to the meaning of a treaty provision,
treaty expressly allows for extradition on an "order of detention"
in addition to an arrest warrant, a strong inference arises that
the Dominican Republic should be permitted to use this pre-
indictment procedure to extradite Aguasvivas.
- 60 -
and that interpretation follows from the clear treaty language, we
must, absent extraordinarily strong contrary evidence, defer to
that interpretation."). Furthermore, "if a treaty fairly admits
of two constructions, one restricting the rights which may be
claimed under it, and the other enlarging it, the more liberal
construction is to be preferred." Factor, 290 U.S. at 293-94; see
also Grin, 187 U.S. at 184 (stating that extradition treaties
should be "interpreted with a view to fulfil our just obligations
to other powers.").
The United States and the Dominican Republic agree that
the warrant can fulfill the requirements of § 3(b). The State
Department opines that "Article 7(3)(b) supplements Article
7(3)(a) by ensuring that the Requesting State provide not only the
document that functions as a 'warrant or order of arrest or
detention issued by a judge or other competent authority,' but
also the document that identifies the offenses with which the
accused is charged and sought for prosecution in the Requesting
State." However, "[t]here is no requirement . . . that the
requesting country provide separate documents." A representative
from the Office of the Legal Advisor represented that he had
"reviewed the Arrest Warrant for Cristian Aguasvivas submitted by
the Dominican Republic in this extradition request," and concluded
that it "satisfie[d] both Article 7.3(a) and Article 7.3(b) of the
Treaty." The extradition complaint filed in the district court
- 61 -
also explains that Aguasvivas "is charged with murder, aggravated
robbery, conspiracy, and illegal firearm possession, in violation
of Articles 265, 266, 295, 304, 379, and 383 of the Dominican
Criminal Code, and Article 39, Paragraph III, of Dominican Law 36
on Trade and Possession of Firearms." (emphasis added).
The Dominican Republic has also made clear that they
believe Aguasvivas has been charged with several crimes and that
they have provided sufficient documentation for his extradition.
The communication from the Dominican embassy specifies that it
requests Aguasvivas's extradition so that he can "respond to the
charges against him of Association of malefactors, robbery,
murder, and illegal possession of firearms." Prosecutor Sanchez
Arias declares that the "[t]reaty does not state as a requirement
for . . . extradition, the prior existence of an indictment against
the person required in extradition." He explained that an
indictment had not been obtained because "the Prosecutor wants to
know the version of the accused of how and why he perpetrated the
facts imputed to him . . . prior [to] filing an indictment against
him." The warrant also states on its face that Aguasvivas is
"accused of violat[ing]" several articles of the Dominican
Criminal Code.
In the face of this agreement, if the treaty is
ambiguous, we must defer to the parties and hold that the warrant
fulfills the requirements of Article 7, § 3(b).
- 62 -
III.
The majority approach is forbidden by Supreme Court
precedent in several respects. First, the Supreme Court has
cautioned against expanding the treaty obligations of other
countries. See Grin, 187 U.S. at 191 ("The treaty is undoubtedly
obligatory upon both powers, and, if Congress should prescribe
additional formalities than those required by the treaty, it might
become the subject of complaint by the Russian government and of
further negotiations."). Instead, extradition treaties should be
"faithfully observed, and interpreted with a view to fulfil our
just obligations to other powers." Id. at 184. Insisting that
the Dominican Republic provide a charging document when the treaty
does not explicitly include such a requirement puts an
impermissible burden on the Dominican Republic and will stand in
the way of the United States' faithful adherence to its treaty
obligations, both to the Dominican Republic and the many other
countries whose treaties similarly require "document[s] setting
forth the charges."
Second, courts should refrain from imposing standards
that cause the validity of an extradition request to turn on the
technical form of the request. See Glucksman v. Henkel, 221 U.S.
508, 512 (1911) ("[W]hile . . . a man is not to be sent from the
country merely upon demand or surmise, . . . if there is presented,
even in somewhat untechnical form according to our ideas, such
- 63 -
reasonable ground to suppose him guilty as to make it proper that
he should be tried, good faith to the demanding government requires
his surrender."); Yordi v. Nolte, 215 U.S. 227, 230–31 (1909)
(moving away from the "extreme technicality with which
[extradition] proceedings were formerly conducted" and holding
that extradition complaints "need not be drawn with the formal
precision of an indictment"). Where an extradition proceeding "is
manifestly taken in good faith, a technical noncompliance with
some formality of criminal procedure should not be allowed to stand
in the way of a faithful discharge of our obligations." Grin, 187
U.S. at 184–85. Furthermore, courts should not be required to
become familiar with foreign criminal procedure in order to resolve
extradition requests. Id. at 190 (stating that the court should
not be "expected . . . [to] become conversant with the criminal
laws of Russia, or with the forms of warrants of arrest used for
the apprehension of criminals"); see also Assarsson, 635 F.2d at
1244 ("We are also not expected to become experts in the laws of
foreign nations." (citing Grin, 187 U.S. at 181)).
Cases from our sister circuits expand on these notions.
In Assarsson, the court explained that courts should "refus[e] to
review compliance with foreign criminal procedure . . . based on
respect for the sovereignty of other nations." 635 F.2d at 1244.
"This respect is embodied in the procedural framework of
international extradition, which 'gives to the demanding country
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advantages most uncommon to ordinary civil and criminal
litigation.'" Id. (quoting First Nat'l City Bank of N.Y. v.
Aristeguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated as moot,
375 U.S. 49 (1963)). Furthermore, courts should avoid inquiries
that require them to evaluate and interpret the laws of foreign
nations because such inquiries carry a high risk of error. Id.("[T]he chance of error is much greater when we try to construe
the law of a[nother] country . . . ."); see also Emami, 834 F.2d
at 1449 (concluding that the court should "refrain from
interpreting the requirements of German criminal procedure both
out of respect for German sovereignty and because [the court]
recognize[d] the chance of erroneous interpretation").
These holdings do not forbid us from inquiring into the
sufficiency of the documents provided by the Dominican Republic.
But the majority's interpretation of the treaty will unnecessarily
require courts to evaluate whether the documents presented include
a proper charging document rather than accepting the
representations of the Dominican Republic that the defendant has
been charged with several crimes.22 The majority's holding also
22 The dangers of this type of inquiry appear even in this
case. While the majority suggests that a criminal complaint by a
victim would suffice as a document setting forth the charges, such
a complaint does not indicate that a prosecutor will in fact bring
charges.
Prosecutor Sanchez Arias's affidavit states that "[t]he
aggrieved parties may also file a criminal complaint against the
accused and collaborate proactively with prosecutors in the work
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hinges on its conclusion that the Dominican Republic will never
issue a warrant that does not describe all of the offenses charged
against the person sought for extradition. This type of reasoning
goes against the weight of precedent cautioning against inquiries
into the criminal procedure of other nations. We should inquire
only whether the documents adequately describe and give notice of
the charges against Aguasvivas.
IV.
The majority's decision, in my view, harms the United
States in the conduct of foreign affairs and is in conflict with
the views of other circuits. And because the treaty language at
issue in this case is nearly identical to the language in a large
number of extradition treaties with Caribbean and South American
countries, the majority opinion will have repercussions far beyond
this case. Though the Dominican Republic may file an acusación
and attempt to extradite Aguasvivas again, in all likelihood
Aguasvivas will never be found to permit extradition to face
charges in the Dominican Republic.
I respectfully dissent.
of investigation" but that "[t]he prosecutor decides whether or
not to bring charges" and if the prosecutor does bring charges
"the complainant adheres to the accusation." It is not clear from
the majority opinion whether a victim's complaint unsupported by
a prosecutor would fulfill the terms of § 3(b).
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