United States v. Nizar Trabelsi

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2016 Decided January 17, 2017
No. 15-3075
UNITED STATES OF AMERICA,
APPELLEE
v.
NIZAR BEN ABDELAZIZ TRABELSI, ALSO KNOWN AS NIZAR
BEN ABDELAZIZ TRABELSI, ALSO KNOWN AS ABU QA'QA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00089-1)
Mary Manning Petras, Assistant Federal Public
Defender, argued the cause for appellant. With her on the
briefs was A.J. Kramer, Federal Public Defender.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief was Elizabeth Trosman,
Assistant U.S. Attorney.
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
2
Opinion concurring in part and concurring in the
judgment filed by Circuit Judge PILLARD.
WILKINS, Circuit Judge: Nizar Trabelsi is a Tunisian
national convicted in Belgium for a variety of crimes,
including attempting to destroy a military base. While
Trabelsi was serving his sentence for his convictions in
Belgium, a grand jury in the United States indicted Trabelsi
with various conspiracy and terrorism offenses. The United
States requested that Belgium extradite Trabelsi. Trabelsi
challenged that request in Belgium, contending that his
extradition would violate the Extradition Treaty Between the
United States of America and the Kingdom of Belgium (the
“Extradition Treaty” or “Treaty”), Apr. 27, 1987, S. TREATY
DOC. NO. 104-7, in view of the non bis in idem principle.
Belgium disagreed and extradited Trabelsi to the United
States. Trabelsi renewed his challenge here, moving the
District Court to dismiss the indictment for violating the
Treaty provision. In opposition, the Government argued that
the District Court lacked jurisdiction to review the extradition
decision. The District Court concluded that it had jurisdiction
to review the decision but denied Trabelsi’s motion on the
merits. We conclude that we have jurisdiction to hear this
appeal and review Trabelsi’s extradition.
Trabelsi presents four arguments on appeal. First, he
argues that the District Court erred in deferring to Belgium’s
decision on his double-jeopardy claim. He next contends
that, absent this deference, the District Court should not have
applied the test articulated in Blockburger v. United States,
284 U.S. 299 (1932), to compare the offenses charged in the
U.S. indictment with the offenses of which he was convicted
in Belgium. Even assuming that Blockburger applies,
Trabelsi submits that the District Court erred in finding that
the charges in the U.S. indictment were not the same as his
3
Belgian convictions. Finally, Trabelsi urges this Court to
conclude that dismissal of his indictment is the appropriate
remedy.
Trabelsi’s arguments are unpersuasive. The scope of our
review is limited, requiring deference to Belgium’s decision
to extradite Trabelsi. This deference creates a rebuttable
presumption that Trabelsi’s extradition, and Belgium’s
analysis in deciding to extradite him, comports with the terms
of the Treaty. See United States v. Campbell, 300 F.3d 202,
209 (2d Cir. 2002). Although Trabelsi is correct that a
Blockburger analysis is not required under the terms of the
Treaty, his argument that the Treaty requires a conduct-
oriented test is not supported by the text of the Treaty, which
refers to “offenses.” As a result, we need not reach his final
two arguments, and we affirm the District Court’s order
denying Trabelsi’s motion to dismiss the indictment.
I.
On September 13, 2001, Trabelsi was watching television
at his apartment in Ucle, Belgium when the Belgian police
arrived and arrested him. While searching his apartment, the
police discovered an Uzi submachine gun and a list of
chemicals used to manufacture explosives. The police also
searched a restaurant owned by a co-conspirator’s family, and
uncovered chemicals that could be used to make explosives.
On September 14, 2001, Trabelsi was served with an arrest
warrant, charging him with “conspiracy, destruction by
explosion, possession of weapons of war, and belonging to a
private militia.” J.A. 96. Belgian courts convicted Trabelsi,
and on September 30, 2003, he was sentenced to ten years in
prison “for, among other things, having attempted to destroy
the military base of Kleine-Brogel with explosives, having
committed forgery, and having been the instigator of a
4
criminal association formed for the purpose of attacking
people and property.” Id.
On April 7, 2006, while Trabelsi was serving his
sentence in Belgium, a grand jury in the United States
indicted him for various offenses. A superseding indictment
(hereinafter, the “indictment”) was issued on November 16,
2007. The indictment charged Trabelsi with conspiracy to
kill United States nationals outside of the United States in
violation of 18 U.S.C. §§ 2332(b)(2) and 1111(a) (Count 1);
conspiracy and attempt to use weapons of mass destruction
against nationals of the United States while such nationals
were outside of the United States, and against property used
by the United States and a department and agency of the
United States in violation of 18 U.S.C. §§ 2332a and 2 (Count
2); conspiracy to provide material support and resources to a
foreign terrorist organization, specifically al Qaeda, in
violation of 18 U.S.C. § 2339B (Count 3); and providing
material support and resources to a foreign terrorist
organization, specifically al Qaeda, in violation of 18 U.S.C.
§§ 2339B and 2 (Count 4).
The United States requested that Belgium extradite
Trabelsi on April 4, 2008, attaching an affidavit from the
Department of Justice describing the offenses, and their
elements, for which the United States sought to prosecute
him. Trabelsi challenged the extradition request in Belgium,
arguing that his extradition would violate certain provisions
of the Extradition Treaty. Specifically, Trabelsi argued that
his extradition would violate Article 5 of the Treaty, which
provides that “[e]xtradition shall not be granted when the
person sought has been found guilty, convicted or acquitted in
the Requested State for the offense for which extradition is
requested.” S. TREATY DOC. NO. 104-7. On November 19,
2008, the Court Chamber of the Court of First Instance of
5
Nivelles held that the United States arrest warrant was
enforceable, except as to the overt acts labeled numbers 23,
24, 25, and 26 in the indictment. The Court of Appeals of
Brussels affirmed this decision on February 19, 2009. On
June 24, 2009, the Belgian Court of Cassation affirmed the
Court of Appeals.
The Belgian Minister of Justice, who has final authority
over extradition requests, granted the United States’ request
on November 23, 2011. The Minister rejected the position
that the non bis in idem principle is implicated by Article 5,
concluding instead that the narrower offense-based “double
jeopardy” principle applies. The Minister further rejected the
limitation on overt acts, explaining that they were “not the
offenses for which an extradition [was] requested” because
“an overt act is an element (of fact, or factual), an act, a
conduct or a transaction which in itself cannot automatically
be qualified as an offense.” Extradition Decision of the
Minister of Justice, Kingdom of Belgium 11 (Nov. 23, 2011)
(hereinafter “Min. Justice Dec.”). By application, Trabelsi
appealed the Minister’s decision to the Belgian Council of
State, which also concluded that the United States offenses
are different and that “‘overt acts’ constitute elements . . . to
determine whether [Trabelsi] is guilty or not guilty,” and
rejected his application on September 23, 2013. Council of
State, Div. of Admin. Litig., Sept. 23, 2013, 29 (Belg.).
Belgium extradited Trabelsi to the United States on October
3, 2013. He was arraigned the same day.
On September 15, 2014, Trabelsi moved to dismiss the
indictment for violating the Extradition Treaty. He argued,
inter alia, that his extradition violated Article 5 of the Treaty
because Belgium had already tried and convicted him “for the
6
offense for which extradition was requested.” Motion to
Dismiss at 9-10 (quoting Extradition Treaty, Article 5).1
After a hearing on September 30, 2015, the District Court
denied Trabelsi’s motion in an opinion and order on
November 4, 2015. United States v. Trabelsi, Criminal
Action No. 06-89 (D.D.C. Nov. 4, 2015). The District Court
concluded that Trabelsi had standing to challenge his
extradition, id. at 4-5 n.1, and that it had jurisdiction to review
his extradition, id. at 7-11. Using the analysis articulated in
Blockburger, 284 U.S. 299, the District Court determined that
Trabelsi was not charged with the same offenses in the
indictment for which he was tried and convicted in Belgium,
J.A. 754-64. Trabelsi appeals, and our standard of review is
de novo, see McKesson Corp. v. Islamic Republic of Iran, 539
F.3d 485, 488 (D.C. Cir. 2008); United States v. Duarte-
Acero, 208 F.3d 1282, 1284 (11th Cir. 2000).
II.
A.
Neither Trabelsi nor the Government challenges this
Court’s authority to decide Trabelsi’s appeal of the denial of
his motion to dismiss the indictment. However, “we have an
independent obligation to consider the issue” because “there
has not yet been a final judgment in the district court.”
United States v. Ginyard, 511 F.3d 203, 208 (D.C. Cir. 2008).
“In the absence of a final judgment, this court generally
lacks jurisdiction to hear a challenge to a decision of a district
1
Trabelsi also argued that his extradition violated Articles 15 and 6
of the Treaty, but those are not at issue in this interlocutory appeal.
See Appellant Br. at 10.
7
court.” Id. (citations omitted). However, in Abney v. United
States, the Supreme Court held that “a pretrial order denying
a motion to dismiss an indictment on double jeopardy
grounds . . . fall[s] within” the collateral order exception to
the final-judgment rule. 431 U.S. 651, 659 (1977). The
Court reasoned that “such orders constitute a complete,
formal, and, in the trial court, final rejection of a criminal
defendant’s double jeopardy claim” because “[t]here are
simply no further steps that can be taken in the District Court
to avoid the trial the defendant maintains is barred by the
Fifth Amendment’s guarantee.” Id. “Moreover, the very
nature of a double jeopardy claim is such that it is collateral
to, and separable from the principal issue at the accused’s
impending criminal trial, i.e., whether or not the accused is
guilty of the offense charged.” Id. Such challenges do not
involve the merits nor questions of evidence regarding those
charges, making the order “truly collateral to the criminal
prosecution itself.” Id. at 660. Finally, the Court noted that
the nature of the right is a prohibition “not against being twice
punished, but against being twice put in jeopardy.” Id. at 661
(emphasis and quotation marks omitted) (quoting Price v.
Georgia, 398 U.S. 323, 326 (1970)). As a result, “pretrial
orders rejecting claims of former jeopardy . . . constitute
‘final decisions’ and thus satisfy the jurisdictional
prerequisites of § 1291.” Id. at 662.
Because Trabelsi’s challenge does not arise under the
Double Jeopardy Clause of the Fifth Amendment, Abney is
not precisely on point. However, the logic of Abney is
equally applicable here. Trabelsi challenges his extradition
under Article 5 of the Treaty, the prior-prosecution provision.
Additionally, Trabelsi has no further procedural steps to avoid
trial on the offenses alleged here, and his challenge is
collateral to and separate from his guilt of those offenses.
Accordingly, we hold that the District Court’s order denying
8
his motion to dismiss the indictment fits within the collateral-
order exception, and we have jurisdiction to consider
Trabelsi’s appeal. See Duarte-Acero, 208 F.3d at 1284
(applying Abney to a motion to dismiss an indictment based
on a double-jeopardy provision included in a treaty).
B.
Although we have jurisdiction to hear this interlocutory
appeal, the Government challenges the District Court’s, and
our, jurisdiction to review Trabelsi’s extradition at all. In the
District Court, the Government argued that Trabelsi lacked
standing under the Ker-Frisbie Doctrine. See Ker v. Illinois,
119 U.S. 436, 440 (1886); Frisbie v. Collins, 342 U.S. 519,
522 (1952). The Government makes no such argument here,
but, again reviewing jurisdiction independently, we conclude
that the Ker-Frisbie Doctrine does not apply because Trabelsi
was extradited in accordance with a treaty. Cf. United States
v. Rauscher, 119 U.S. 407 (1886); Ker, 119 U.S. at 443.
Presently, the Government contends that we lack
jurisdiction to review Trabelsi’s extradition because we must
defer to Belgium’s decision that the offenses charged in the
indictment do not violate Article 5 of the Treaty. Trabelsi
submits that we have jurisdiction to review his extradition and
owe no deference to Belgium’s decision. We hold that we
have jurisdiction to review Belgium’s decision, but that our
review is highly deferential. Where an individual has been
extradited pursuant to a treaty, we defer to the extradition
decision of the extraditing country. In light of this deference,
we presume, absent evidence to the contrary, that the
extraditing nation has complied with its obligations under the
treaty and that the extradition is lawful. See Campbell, 300
F.3d at 209-10.
9
Historically, “[e]xtradition and other forms of rendition
were for the benefit of [nation] states.” M. CHERIF
BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES
LAW AND PRACTICE 3 (5th ed. 2007) (hereinafter BASSIOUNI,
INTERNATIONAL EXTRADITION). This makes extradition a
“sovereign act,” and treaties are not required in order to seek
an extradition. Id. at 25. However, extradition by treaty is
increasingly common today, see id. at 24-25, and the Treaty
was the means by which Belgium extradited Trabelsi to the
United States, see Min. Justice Dec. 1-13. Because
extradition implicates “the sovereignty of a nation to control
its borders and to enforce its treaties,” United States v.
Riviere, 924 F.2d 1289, 1300 (3d Cir. 1991), judicial review
of such a decision could implicate concerns of international
comity, see Casey v. Dep’t of State, 980 F.2d 1472, 1477
(D.C. Cir. 1992). But these implications do not mean that we
lack jurisdiction to review an extradition decision. “A treaty
. . . is a law of the land, as an act of congress is, whenever its
provisions prescribe a rule by which the rights of the private
citizen or subject may be determined.” Rauscher, 119 U.S. at
419. Because Article 5 of the Extradition Treaty provides “a
rule of decision for the case before” us, id., we have
jurisdiction to ensure Trabelsi’s extradition complied with
that rule.
Neither Casey nor Johnson v. Browne, 205 U.S. 309
(1907), dictates otherwise. In Casey, we held that an
individual could not challenge his extradition pursuant to a
treaty in the United States prior to his extradition from the
requested state. 980 F.2d at 1477-78. We reasoned that we
could not review a preemptive extradition challenge without
violating international comity or separation of powers. Id.
Casey did not resolve whether an individual could challenge
his extradition after arriving in the requesting state to face
prosecution, the issue presented here. See id. at 1478.
 10
In Johnson, a U.S. citizen named Charles Browne was
convicted of fraud crimes and sentenced to two years’
imprisonment. 205 U.S. at 310-11. Browne was released on
bail but failed to appear for his sentence after losing his
appeal. Id. at 311. Browne was later discovered in Canada,
and the United States sought his extradition. Id. Canada
refused, concluding the fraud crimes were outside the scope
of the extradition treaty. Id. at 311-12. After the U.S.
government obtained an indictment charging Browne with
new crimes within the scope of the treaty, Canada extradited
him based upon those charges. Id. at 312. When he arrived
in the United States, Browne was imprisoned for his prior
fraud convictions. Id. at 311. In other words, he was
“extradited for one offense and . . . imprisoned for another,
which the Canadian court held was not, within the treaty, an
extraditable offense.” Id. at 316. Although the extradition
treaty did not contain a provision explicitly precluding this
outcome, id. at 318, the Court previously interpreted the
extradition treaty to incorporate the doctrine of specialty,
which provides a “limitation of the right of the demanding
country to try a person only for the crime for which he was
extradited,” id. at 317 (discussing Rauscher, 119 U.S. at 422-
23). In light of this precedent, as well as federal statutes
codifying the specialty principle, the Court held Browne’s
imprisonment unlawful. Id. at 317-22.
The Court reached its conclusion, in part, because
“[w]hether the [fraud] crime came within the provision of the
treaty was a matter for the decision of the [Canadian]
authorities, and such decision was final by the express terms
of the treaty itself.” Id. at 316. Canada’s decision was final
because the United States agreed that Canada’s decision
would be final. Specifically, Article 2 of the Extradition
Convention between the United Kingdom and the United
11
States provided that “[i]f any question shall arise as to
whether a case comes within the provisions of this Article, the
decision of the authorities of the government in whose
jurisdiction the fugitive shall be at the time shall be final.”
Extradition Convention Between the United States of
America and Her Britannic Majesty, July 12, 1889, U.K.-
U.S., 26 Stat. 1508. Here, the Extradition Treaty contains no
similar provision rendering Belgium’s decision final.
This Court has understood Johnson not to mean that the
court lacks jurisdiction to review challenges to extradition,
but that a U.S. court “must give great deference to the
determination of the foreign court in an extradition
proceeding.” Casey, 980 F.2d at 1477. This deference
reflects the standard by which we review the extradition. See
United States v. Garavito-Garcia, 827 F.3d 242, 247 (2d Cir.
2016) (giving deference to extraditing country’s interpretation
of its law); cf. United States v. Anderson, 472 F.3d 662, 666-
67 (9th Cir. 2006) (holding that violation of an extradition
treaty impacts personal jurisdiction over the defendant);
Riviere, 924 F.2d at 1301-02 (finding that the double-
jeopardy provision of a treaty was not violated where the
extraditing country waived all objections to prosecution).
Even those circuits that have construed Johnson broadly
describe its holding in terms of the deference courts owe an
extradition decision, not the court’s jurisdiction to review
such a decision. See, e.g., United States v. Van
Cauwenberghe, 827 F.2d 424, 428-429 (9th Cir. 1987) (“We
therefore defer to the [extraditing nation] as to . . .
extraditability under the Treaty and hold that Van
Cauwenberghe was properly extradited.”). This deference
applies equally to claims challenging the double-jeopardy
provisions of extradition treaties, cf. Riviere, 924 F.2d at
1301-02, and means that our review here is narrow.
12
The Second Circuit’s approach in Campbell, 300 F.3d at
208-11, is instructive. There, the defendant, George
Campbell, challenged his extradition from the Republic of
Costa Rica, arguing that the firearms offenses for which he
was extradited were not within the scope of the applicable
extradition treaty. Id. at 208-09. According to Campbell, his
extradition thus violated the principle of specialty, under
which “an extradited defendant may not be tried for a crime
not enumerated in the applicable extradition treaty.” Id. at
209. The Second Circuit disagreed, explaining that “the
question of whether an extradition treaty allows prosecution
for a particular crime that is specified in the extradition
request is a matter for the extraditing country to determine.”
Id. (citing Johnson, 205 U.S. at 316). As a result, the court
“interpret[ed] Johnson v. Browne to mean that . . . courts
cannot second-guess another country’s grant of extradition to
the United States.” Id. (citations omitted). Given this
deference, the court would “presume that if the extraditing
country does not indicate that an offense specified in the
request is excluded from the extradition grant, the extraditing
country considers the offense to be a crime for which
extradition is permissible.” Id. Because Campbell’s
indictment included the firearms offenses, the court
“infer[red] . . . that Costa Rica found the . . . offenses to be
extraditable crimes” and refused to “second-guess that
decision.” Id. at 210.
Although Campbell dealt with a specialty claim, its
approach is useful here. Trabelsi contends that his extradition
violated Article 5 of the Treaty. The U.S. government’s
formal extradition request attached a copy of the indictment
and, by affidavit, identified the elements of each offense. Just
as the scope of the extradition treaty at issue in Campbell was
for Costa Rica to determine, see 300 F.3d at 209, so too is the
scope of Article 5 a matter for Belgium. It was for Belgium,
13
as the requested party, to determine whether to grant
extradition, see Treaty, Art. 11, S. TREATY DOC. NO. 104-7, if
Trabelsi “ha[d] [not] been found guilty, convicted, or
acquitted in [Belgium] for the offense for which extradition
[was] requested,” Treaty, Art. 5., S. TREATY DOC. NO. 104-7.
The Belgian Minister determined that Trabelsi’s extradition
would not violate the Treaty, and we will not “second-guess
[Belgium’s] grant of extradition.” Campbell, 300 F.3d at 209.
This deferential approach means that “we will presume
that if [Belgium] does not indicate that an offense specified in
the request is excluded from the extradition grant, [Belgium]
considers the offense to be a crime for which extradition is
permissible.” Campbell, 300 F.3d at 209. Applying the
presumption makes our review straightforward. The
extradition grant did not exclude any of the offenses included
in the request for extradition. As a result, we presume that
Belgium has determined that none of the offenses in the
indictment violate Article 5 of the Treaty.
This presumption is not irrebuttable, however. Evidence
that might rebut the presumption would include misconduct
on the part of the United States in procuring an extradition,
see Casey, 980 F.2d at 1475, or the absence of review of the
extradition request by the requested party. Trabelsi, however,
offers no such evidence. The United States sought Trabelsi’s
extradition. After comparing the offenses in the U.S.
indictment with those of which Trabelsi was convicted in
Belgium, Belgium granted the extradition request without
limitation, and the Minister adequately explained his decision,
including his basis for rejecting the overt-acts exclusion.
Trabelsi’s objections to extradition received multiple layers of
review by Belgian courts and executive officials.
14
The presumption could also be rebutted by a showing
that the requested state or party did not apply the correct legal
standard adopted in the Treaty. Here, Trabelsi contends that
Belgium applied the wrong legal standard to evaluate the
protections afforded under Article 5 of the Treaty. He argues
that the Treaty’s use of “offenses” requires a comparison of
the underlying conduct, submitting that we should follow the
Second Circuit’s approach in Sindona v. Grant, 619 F.2d 167,
178 (2d. Cir. 1980). But “[t]he interpretation of a treaty, like
the interpretation of a statute, begins with its text.” Medellin
v. Texas, 552 U.S. 491, 506 (2008). Article 5 of the Treaty
provides that “[e]xtradition shall not be granted when the
person sought has been found guilty, convicted, or acquitted
in the Requested State for the offense for which extradition is
requested.” S. TREATY DOC. NO. 104-7. The use of the term
“offense” in the Treaty compels us to reject Trabelsi’s
argument. The use of “offenses” is common in extradition
treaties to which the United States is a party, see Sindona, 619
F.2d at 177, but its meaning is not always clear. “‘[S]ame
offenses’ may range from ‘identical charges’ to ‘related . . .
but not included offenses.’” Id. (quoting M. CHERIF
BASSIOUNI, INTERNATIONAL EXTRADITION AND WORLD
PUBLIC ORDER 452-59 (1974)). Considering the range of
possible meanings of “offenses,” application of a Blockburger
analysis, which would compare the elements of the offenses,
284 U.S. at 304, is not required and Trabelsi does not suggest
that it is. Yet the Treaty’s language does not compel
Trabelsi’s preferred interpretation either. As Trabelsi
concedes, “some treaty double jeopardy provisions prohibit
dual prosecutions based on the same acts,” Appellant Br. at
25, but that was not the language used here. Cf. United States
v. Rezaq, 134 F.3d 1121, 1130 (D.C. Cir. 1998); see also
BASSIOUNI, INTERNATIONAL EXTRADITION, supra at 750
(“The use of the term ‘same facts’ creates a broader
protection than ‘same offense.’”).
15
Trabelsi also points to language from Article 2 of the
Treaty to suggest that conduct should be considered in
comparing offenses. Specifically, he references Article 2,
Paragraph 1, which provides that “[a]n offense shall be an
extraditable offense if it is punishable under the laws in both
Contracting States by deprivation of liberty for a maximum
period of more than one year or by a more severe penalty.” S.
TREATY DOC. NO. 104-7. Trabelsi also highlights Article 2,
Paragraph 4(b), which distinguishes between “essential” and
non-“essential” elements, and notes that Article 2, Paragraph
4(c) instructs the Contracting States to “disregard that the
respective laws do not place the offense within the same
category of offenses or describe the offense by the same
terminology.” Id. According to Trabelsi, Article 2 shows
that conduct should be considered in addition to elements.
But nothing in Article 2 suggests that the Belgian Minister’s
decision is so unreasonable as to rebut the presumption that
the extradition was a proper application of Article 5.
The legislative history surrounding the Extradition
Treaty’s ratification also supports interpreting the Treaty to
apply to offenses, not conduct. The Senate Committee on
Foreign Relations issued an Executive Report at the time the
Treaty was ratified in 1996. In language that parallels Article
5 of the Treaty, the report notes that the Treaty “prohibits
extradition if the person sought has been found guilty,
convicted, or acquitted in the Requested State for the offense
for which extradition is requested.” S. EXEC. REP. No. 104-28
(July 30, 1996). The report further explains that “[t]his
paragraph permits extradition . . . if the person sought is
charged in each Contracting State with different offenses
arising out of the same basic transaction.” Id. (emphasis
added).
 16
In accordance with both the plain text and legislative
history of the Extradition Treaty, Trabelsi would need to
show that Belgium failed to compare the offenses with which
he was charged in the indictment to the offenses of which he
was convicted in Belgium. Not only did the Belgian Court of
Appeal individually compare and explain the differences
between each U.S. count and the Belgian prosecution, the
Belgian Minister of Justice’s decision is to the same effect.
The Minister of Justice interpreted the Extradition Treaty to
apply to “offenses” rather than “acts” or “conduct.”
Considering other treaties with similar language, the Minister
concluded that “it is not the facts, but . . . the offenses, that
have to be identical” in order to deny an extradition request.
Min. Justice Dec. at 10. The Minister explained that “[t]his
concept excludes the (same) proof, the (same) evidence or the
same material summary of facts that had been used, if
applicable, for the purposes of proving the offenses for which
the person had previously been prosecuted, sentenced, or
acquitted.” Id. at 11. As a result, the Minister determined
that “the offenses for which [Trabelsi] was irrevocably
sentenced . . . do not correspond to the offenses listed [in the
indictment] that appear in the arrest warrant on which the
U.S. extradition request is based.” Id. Therefore, the
Minister concluded that “the conditions and formalities for
extradition [were] met,” and granted the extradition request.
Id. at 13.
For the reasons discussed, we defer to this decision of the
Belgian courts and Minister of Justice that, based on an
offense-based analysis, Trabelsi’s extradition comports with
Article 5 of the Treaty, since Trabelsi has offered nothing of
merit to rebut the presumption. Because Trabelsi’s
challenges fail, we need not decide whether the charges in the
U.S. indictment and the crimes for which Belgium convicted
Trabelsi are identical under Blockburger.
17
Our concurring colleague departs from our reasoning
based on the conclusion that Belgian courts should be not be
accorded this measure of deference and that, instead, we
should test the indictment under Blockburger. We cannot
agree for three principal reasons.
First, both Trabelsi and our concurring colleague read
terms into the Treaty that are not there. Ordinarily,
Blockburger applies when a defendant raises a challenge
under the Double Jeopardy Clause of the U.S. Constitution,
but Trabelsi does not and cannot present such a challenge
here. Rather, he seeks protection under an agreement
between two sovereign nations, and our task is limited. Cf.
Sanchez-Llamas v. Oregon, 548 U.S. 331, 343-47 (2006)
(observing that where “a treaty does not provide a particular
remedy, either expressly or implicitly,” it is improper to read
such a remedy into the treaty). As explained above, Article 5
of the Treaty prohibits extradition based on an “offense” for
which the requested state has already prosecuted the
defendant. S. TREATY DOC. NO. 104-7. Article 5 does not,
however, mandate any particular legal standard for defining
the same “offense,” whether it is a conduct-based test (as
Trabelsi proposes) or the Blockburger test (as our concurring
colleague proposes). Indeed, courts should be especially
reluctant to read conditions into a treaty that would render
extradition more difficult, as Trabelsi and the concurrence
would have us do. See Factor v. Laubenheimer, 290 U.S.
276, 298-99, 303 (1933) (instructing courts to liberally
construe treaties in favor of extradition). Under the
circumstances, grafting Blockburger onto the analysis would
exceed “the limits on our judicial review of the issues
determined by the [Belgian] courts.” Casey, 980 F.2d at
1478.
18
Second, given the historical context of the Treaty, it is
implausible that Article 5 mandates a Blockburger analysis.
In 1987, when the Treaty was ratified, the law of double
jeopardy under the U.S. Constitution was not settled. For
example, Trabelsi urges us to adopt the “same conduct” test,
which was articulated by the Second Circuit in 1980 to
evaluate a non bis in idem challenge under our extradition
treaty with Italy. See Sindona, 619 F.2d at 167. But the
“foundation” for that test was not “eroded” until the Supreme
Court’s decision in United States v. Dixon, 509 U.S. 688
(1993) – six years after the Extradition Treaty with Belgium
was ratified – which adopted Blockburger as the test to be
used for all prior-prosecution double jeopardy challenges
under the Fifth Amendment. See Zhenli Ye Gon v. Holt, 774
F.3d 207, 216 (4th Cir. 2014). It is highly doubtful that when
striking the agreement in 1987, the United States and Belgium
codified Blockburger as the sole method of testing whether an
extradition request complied with Article 5 of the Treaty,
when that test was not yet even the law of the land here. It
requires yet another leap of logic to conclude that Belgium
agreed that a test devised by U.S. courts would be the sole
means to determine whether a Belgian offense and U.S.
offense are the same. Such assumptions risk judicial
amendment of the Treaty, in a manner which neither
signatory has approved.
Our concurring colleague contends that by not reviewing
Belgium’s decision under Blockburger, we are “treat[ing] the
Belgian proceedings as a black box.” Concurring Op. at 1.
This is hyperbole. We have examined the extensive Belgian
proceedings, supra, at 4-5, and have confirmed that Belgium
granted the U.S. extradition request employing an offense-
based analysis, supra, at 16-17. The concurrence assumes we
must review Belgium’s decision under a test that a “party has
credibly suggested.” Concurring Op. at 1. This assumption is
19
mistaken because we are “not limited to the particular legal
theories advanced by the parties, but rather retain[] the
independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991).
Third, our deferential approach protects each party’s
prerogatives under the Treaty. The United States’ interests
were identified in the extradition request, which was
accompanied by a complete description of the applicable law
of the United States, along with a breakdown of the elements
of each offense, which Trabelsi did not, and does not,
challenge. See Justice Dep’t. Affidavit in Support of Request
for Extradition (Mar. 12, 2008). Belgian authorities, in turn,
were not left to guess at how to construe U.S. law. Rather,
Belgium’s courts and officials were able to compare the
proffered description of U.S. law with their own construction
of Belgian law. Indeed, after Trabelsi was extradited and
raised the instant challenges, Belgian authorities confirmed by
diplomatic note that “any similarity between the United States
case and the Belgian case does not give rise to any bar to his
being tried on the charges in th[e] indictment.” Our
concurring colleague essentially grants no deference
whatsoever to the consistent and repeated conclusions of the
Belgian authorities. The lack of deference is especially
curious because, according to the concurrence, it is “an easy
call” to defer to determinations made by authorities
construing their own domestic law, Concurring Op. at 7. But
that is precisely what Belgium did here. Belgium did not
consider the merits of the Article 5 challenge solely with
reference to U.S. law; it had to construe its own law as well.
This is readily apparent in Belgium’s analysis of Belgian
Charge Q and U.S. Count 4.
20
For example, the Belgian Court of Appeal, when
reviewing Trabelsi’s conviction and sentence, construed
Belgian law to provide that Trabelsi could be convicted of
Charge Q simply for being “part of” an illegal private militia.
Court of Appeal, Brussels, June 9, 2004, 59 (Belg.). On
review of Trabelsi’s challenge to the extradition request, the
same Belgian Court of Appeal ruled that Belgian Charge Q
and U.S. Count 4 were “not based on identical legal
characterizations” because the U.S. offense requires “having
actually supplied resources to a foreign terrorist
organization,”2 while “nothing similar [was required] in the
Belgian proceeding.” Court of Appeal, Brussels, Dec. 9,
2008, 8 (Belg.) (emphasis in original). Belgian authorities
repeatedly construed Belgian criminal law, and stacked those
constructions up against the proffered description of U.S.
criminal law. These analyses showed that Belgium had a
reasoned basis for concluding that Trabelsi could be
extradited, and that conclusion – based in substantial measure
on Belgium’s construction of its own law – is entitled to
considerable deference.
Even outside the context of specialty and dual
criminality, U.S. courts will defer to the judgment of foreign
courts construing their own laws. See, e.g., United States ex
rel. Saroop v. Garcia, 109 F.3d 165, 168-69 (3d Cir. 1997)
(affirming an extradition after “defer[ring] to the judgment of
the High Court of Justice for Trinidad and Tobago on the
validity of the [operative] extradition treaty and its continuing
vitality at the time of . . . extradition”). International comity
remains important in this context. “It could hardly promote
2
See Holder v. Humanitarian Law Project, 561 U.S. 1, 39 (2010)
(“[T]he statute [18 U.S.C. § 2339 B] does not penalize mere
association with a foreign terrorist organization.”).
21
harmony to request a grant of extradition and then, after
extradition is granted, have the requesting nation take the
stance that the extraditing nation was wrong to grant the
request.” Campbell, 300 F.3d at 209. Our deference here is
customary, rather than “excessive” or “extraordinary,” as our
concurring colleague claims.
Such deference is appropriate, moreover, in view of the
process that Belgium accorded to Trabelsi’s extradition
challenge. Supra, at 4-5. Our concurring colleague casts
doubt on the Belgian proceedings because, purportedly,
“Belgium has fulfilled its interest in this case.” Concurring
Op. at 4. But we have no reason to suppose that because
Trabelsi served his Belgian sentence, Belgian authorities
subjected the extradition request to lighter scrutiny than was
warranted; the double-jeopardy principle itself is worth
protecting. See RESTATEMENT (THIRD) OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES § 476 cmt. c (AM
LAW INST. 1987) (“The principle that a person should not be
subject to double jeopardy is common to legal systems
generally, and in many countries is constitutionally
mandated.”). The record contains nothing to support the
concurrence’s speculation.
Accordingly, we affirm the order denying Trabelsi’s
motion to dismiss the indictment and have no occasion to
reach the question of whether dismissal would be an
appropriate remedy.
So ordered.
PILLARD, J., concurring in part and concurring in the
judgment:
I am in accord with much of Judge Wilkins’ fine opinion.
I agree that we have jurisdiction to review the Article 5 claim,
and that the treaty codifies an offense-based rather than fact-
based prior-prosecution test.
I cannot endorse the degree of deference that the majority
accords Belgium’s conclusion that the U.S. indictment did not
charge Trabelsi with any of the same offenses for which he
had already been prosecuted and punished. Under the banner
of deference, the majority forgoes application of the only
offense-based test any party has credibly suggested—the
“same-elements” analysis associated with Blockburger v.
United States, 284 U.S. 299 (1932). See United States v.
Dixon, 509 U.S. 688, 696 (1993) (Blockburger “inquires
whether each offense contains an element not contained in the
other.”). This deferential approach treats the Belgian
proceedings as a black box, when a closer look underscores
the appropriateness of the majority’s acknowledged duty to
assure that the requested state applied the “correct legal
standard.” Maj. Op. 14. (The majority also acknowledges
that it would have cause to inquire further if confronted with a
showing of “misconduct on the part of the United States in
procuring an extradition” or “the absence of review of the
extradition request” by the requested state. Id. at 13.)
Recognizing that we do not review the question de novo
but accord deference to the due consideration and reasonable
conclusions of the Belgian authorities, I would not employ
quite so fully deferential an approach. It is our duty to look
through the underlying proceedings to confirm that the correct
legal standard—presumptively, Blockburger—was reasonably
applied. We otherwise risk acceding even when a treaty
partner, in all good faith, correctly states but misapplies a
treaty’s legal test and invites successive prosecution for the
2
same offenses in violation of a treaty’s guarantee. Because
my review of the record reveals no such error, but persuades
me that Belgium made a reasoned decision that the proposed
U.S. prosecution satisfies the offense-based test of Article 5,
I, too, would affirm.
I.
My colleagues believe that maintaining comity with our
treaty partner requires us to defer to Belgium’s application of
Article 5. I, too, defer to the Belgian decision, and explain
below why I therefore vote to affirm. But, for at least five
reasons, I disagree with the majority’s resort to a form of
deference that does not even confirm that the requisite
analysis was reasonably performed.
First, we cannot unquestioningly accept Belgium’s
application of Article 5 because we have a constitutional
obligation to interpret and apply treaties as the law of the
land, and, as the majority acknowledges, the meaning of
Article 5 is fully susceptible of judicial analysis. Id. at 9. It is
our duty under the Supremacy Clause to apply treaty law just
as we are bound to apply a federal statute or the Constitution
itself. U.S. Const. Art. VI Cl. 2; see United States v.
Rauscher, 119 U.S. 407, 430-31 (1886); Carlos Manuel
Vázquez, Treaties As Law of the Land: The Supremacy
Clause and the Judicial Enforcement of Treaties, 122 Harv. L.
Rev. 599, 601-02 (2008).
Second, the majority’s deferential approach
inappropriately shifts the burden of persuasion by failing even
to require a court to verify that the requisite legal analysis was
reasonably performed by the foreign authorities. A defendant
ordinarily need only “set out a prima facie case that the
second indictment charges him with the same offense for
which he has already been convicted,” at which point “the
3
burden switches to the government to demonstrate, by a
preponderance of the evidence, that the two indictments
charged separate offenses.” United States v. Doyle, 121 F.3d
1078, 1089 (7th Cir. 1997); see also United States v. Jones,
733 F.3d 574, 580 (5th Cir. 2013); United States v. Jurado-
Rodriguez, 907 F. Supp. 568, 579-80 (E.D.N.Y. 1995)
(Weinstein, J.) (remarking in the context of an extradition
challenge that a treaty-based prior-prosecution bar “relates so
closely to our double jeopardy concept that double jeopardy
burdens of proof should apply”). The district court itself
acknowledged uncertainty about whether U.S. Count IV and
Belgian Charge Q actually allege distinct offenses, noting that
“both underlying statutes criminalize providing support to
banned organizations.” J.A. 763. Such uncertainty—which
the district court resolved by deferring to the Belgian
authorities—should not have been treated as discharging the
burden on the government and, ultimately, the court to
identify a basis for allowing Charge IV to proceed.
Third, affording heightened deference to Belgium’s
application of Article 5 would be especially anomalous in this
case, given our two nations’ differing domestic law on prior-
prosecution bars. To the extent that I can discern, the prior-
prosecution bar in Belgium’s national law appears to attach to
facts and not to offenses, and it does not involve
differentiation of elements. See T. Vander Beken, “Belgium,
concurrent national and international criminal jurisdiction and
the principle ‘ne bis in idem,’” Revue Internationale de Droit
Penal, Vo. 73 (2002-2003), available at
https://www.cairn.info/revue-internationale-de-droit-penal-
2002-3-page-811.htm#pa3 (“As far as Belgian judgments are
concerned, Belgium attaches the ne bis in idem effect to facts,
not to offences.”); see generally Bassiouni, INTERNATIONAL
EXTRADITION LAW AND PRACTICE 751 (5th ed. 2007) (“The
distinction between same offense and same facts … stems in
4
large part from the differences in the Common Law and
Civilist Systems.”). Despite that apparent difference in its
domestic prior-prosecution law, Belgium agrees with the
United States that this treaty codifies an offense-based
approach. Nonetheless, it is unclear why we would give
virtually final effect to the Belgian authorities’ application of
the agreed offense-based double jeopardy test that Belgium
knows as a transplant, when that approach is deeply rooted
here and familiar to our courts.
Fourth, Belgium has fulfilled its interest in this case.
Trabelsi is a Tunisian, not a Belgian national. The Belgian
government had a powerful interest in the apprehension and
prosecution of an al Qaeda operative at work within its
borders. Belgium accordingly tried, convicted, sentenced and
imprisoned Trabelsi to the full extent of Belgian law, and
retained him until he had served his sentence there to the
satisfaction of the Belgian state. By the time Belgium
responded to the U.S. extradition request, the Belgian
sovereign interest was at its low ebb. Far from expecting
uncommon deference, Belgian authorities most likely were
inclined to defer to the United States in an effort to facilitate
extradition, in which event deference to Belgium is rather
circular.
Fifth, the majority’s highly deferential approach is not
supported by on-point or in-Circuit precedent. The majority
correctly does not treat Belgium’s sign-off on the extradition
as conclusive of the Article 5 question. Our review to enforce
individual rights under a treaty is compatible with the comity
due to a sovereign treaty partner. See generally Olympic
Airways v. Husain, 540 U.S. 644 (2004) (reviewing U.S.
individuals’ treaty claim against Greek state airline). The
majority nonetheless concludes that it must presume the
correctness of Belgium’s decision. Yet the cases it cites for
5
deference are not about prior prosecution at all, but address
specialty or dual-criminality treaty provisions. Those types of
provisions protect requested states’ domestic-law
prerogatives, raising comity concerns not present here.
The doctrine of specialty provides that “extradited
persons, once returned to the requesting country, may be tried
only for those offenses for which extradition was granted by
the requested country.” Zhenli Ye Gon v. Holt, 774 F.3d 207,
211 (4th Cir. 2014). The deference to extraditing countries’
decisions in specialty cases flows from the nature and
function of that doctrine to prevent a requesting country from
transgressing limits the requested country places on its decree
granting extradition. In Johnson v. Browne, 205 U.S. 309
(1907), for example, Canada granted the United States’
request to extradite Browne, but the extradition decree
excluded the charge of conspiracy to defraud the United
States. When the United States prosecuted Browne on that
excluded charge, the Supreme Court disapproved the bait-
and-switch, emphasizing the importance of “the highest good
faith” in construing a treaty between sovereigns. Id. at 321.
Canada’s decision, moreover, “was final by the express terms
of the treaty itself” and thus was not to be second-guessed by
the United States. Id. at 316. In United States v. Campbell,
another specialty case, the Second Circuit relied on Johnson
to hold that deference was owed to Costa Rica’s
determination whether charges specified in an extradition
request were extraditable offenses. 300 F.3d 202, 209 (2d
Cir. 2002). In view of Costa Rica’s clear decision that the
offense was among those it considered extraditable, the
specialty doctrine provided no traction for Campbell’s
contentions to the contrary. See also United States v. Riviere,
924 F.2d 1289, 1301 (3d Cir. 1991); United States v. Van
Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987).
6
The very foundation of specialty is international comity;
the same is not true of prior-prosecution bars. The specialty
doctrine encourages international cooperation in the
extradition system by giving assurance that, when a country
gives up persons for extradition only for specified purposes or
on certain conditions, those terms will not be flouted. See
Van Cauwenberghe, 827 F.2d at 428. I cannot agree that the
approach of the specialty cases “is useful here” in support of
the majority’s extraordinary deference in the very different
context of a requested state’s permissive rather than
constraining application of a treaty’s prior-prosecution bar.
Maj. Op. at 12.
The majority invokes dual-criminality cases as well in
support of its rule of deference. The doctrine of dual
criminality “restricts the offenses for which a fugitive may be
extradited to those that are criminal in both” the requesting
and requested state. Zhenli Ye Gon, 774 F.3d at 211. A dual-
criminality requirement effectively gives each country a veto
based on whether its domestic law criminalizes the conduct at
issue. In Casey v. Department of State, 980 F.2d 1472 (D.C.
Cir. 1992), for example, Casey contended his extradition on
U.S. RICO and narcotics charges would violate dual
criminality because RICO-style racketeering is not a crime
under Costa Rican law. We dismissed his case as unripe
because he was still litigating in the Costa Rican courts and
had not been extradited. Two members of the court noted in
the dictum on which the majority here relies that, “at a
minimum, Johnson means that an American court must give
great deference to the determination of a foreign court in an
extradition proceeding.” Id. at 1477. Assuming we were to
treat that dictum as persuasive, all it stands for is that in the
dual-criminality context “a foreign court’s holding as to what
that country’s criminal law provides should not lightly be
7
second-guessed by an American court—if it is ever
reviewable.” Id. (emphasis added).
Deference to a treaty partner’s understanding of its own
law for that purpose in that context makes sense for reasons
quite similar to those that support deference in the specialty
setting: Dual criminality is effectively a two-gate obstacle,
with each country the keeper of its own gate; only when both
are open can the extradition proceed. See generally
Restatement (Third) of Foreign Relations Law § 476(1)(c). It
is an easy call that the requested country is the authority on
the content of its own domestic criminal law, holding the key
to the gate it uniquely guards. Cf. United States v. Garavito-
Garcia, 827 F.3d 242, 246-47 (2d Cir. 2016) (deferring to
Colombian Attorney General’s construction of Colombian
criminal law). The reasons for deferring in dual-criminality
cases to a requested country’s determination of what its own
law requires do not support deference regarding correct
application of the terms of the bilateral treaty itself. See
generally Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1232
(2014) (“For treaties, which are primarily compacts between
independent nations, our duty is to ascertain the intent of the
parties by looking to the document’s text and context.”)
(citations, marks, and alterations omitted). The United States
is as equipped as Belgium to understand Article 5. Casey and
other dual-criminality cases cannot support a rule of deference
to a treaty partner’s application of the treaty’s own prior-
prosecution bar.
This case arises in a different posture and does not raise
the same comity concerns as the specialty and dual
criminality precedents the majority invokes. The question
here is whether the proposed prosecution will expose Trabelsi
to “being tried for the same offense in two different
countries.” Zhenli Ye Gon, 774 F.3d at 211. The majority’s
8
cited specialty and dual-criminality cases involve deference to
a requested state’s decision to place restrictions on an
extradition rather than, as here, to authorize (but not
necessarily require) the requesting state to prosecute on all
specified charges. If the United States decided to dismiss
certain charges—based on prior-prosecution concerns or
otherwise—it is hard to see how that would communicate any
affront to Belgium. This case simply does not raise comity
concerns such as would arise if the United States contravened
limitations Belgium had imposed on its decision to extradite.
I thus cannot join the majority’s reliance on what I view
as an excessive degree of deference to the outcome of another
country’s legal process, by which the majority effectively
sidesteps its acknowledged duty to confirm that Belgium
made the requisite inquiry.
II.
The record in this case confirms the value of a more
searching review. For the most part, the Belgian reviewing
bodies appear to have been of the view that, regardless of
whether the American charges were legally distinct from the
Belgian charges under a Blockburger-type analysis, the
United States endeavored to prosecute Trabelsi for a factually
broader terrorist conspiracy extending beyond the plot to
bomb Kleine-Brogel for which he had already been convicted,
and that the United States charged Trabelsi with providing
material support to al Qaeda apart from the material support
in Belgium for which he had already been successfully
prosecuted. See, e.g., J.A. 121-22, 544-46, 611-12. Thus, had
the district court not performed an independent Blockburger
analysis, there might have been some doubt whether a U.S.
prosecution focused on Kleine-Brogel and events in Belgium
9
would have been authorized under the Belgians’ own
understanding of how the treaty applies.
Unlike the Belgian authorities, the district court focused
on whether the two prosecutions involve legally distinct
offense elements, rather than offenses comprised of the same
legal elements but distinguishable by the elements’
application to separate factual occurrences. The district court
distinguished the three U.S. conspiracy charges on the ground
that they require proof of agreement not required in the
Belgian counts, whereas the Belgian prosecutions turned on
proof of attempt or instigation that the U.S. charges do not
require. See generally United States v. Felix, 503 U.S. 378,
389 (1992) (concluding that “a substantive crime and a
conspiracy to commit that crime are not the ‘same offense’ for
double jeopardy purposes”). Under that analysis, even a
conspiracy prosecution focused on the same conduct at issue
in the Belgian case would not be barred.
The district court did not actually complete an elements-
based Blockburger analysis, however, with regard to Count
IV (Providing Material Support and Resources to a Foreign
Terrorist Organization), despite acknowledging that it
presented “a closer question” than the other three counts
because “both underlying statutes criminalize providing
support to banned organizations.” J.A. 763. To be sure, as
the district court noted, Count IV requires proof that the
organization to which the defendant provided material support
is a U.S.-designated foreign terrorist organization, while
Belgian Charge Q required proof that the defendant “created,
assisted, or joined” an “organization of individuals whose
purpose was to use force.” Id. at 388. The district court did
not, however, identify any element of Charge Q that is not
also required by Count IV. Id. at 763 (only identifying the
element in Count IV that was not in Charge Q). The court
10
also acknowledged that “[t]he universe of U.S.-designated
foreign terrorist organizations may well be almost entirely
subsumed by the universe of organizations formed for the
purpose of using force.” Id. Despite that, the district court
found it appropriate to defer to the Belgian courts.
Consistent with the ordinary deference owed to the legal
determinations of any treaty partner, U.S. courts must at the
very least satisfy ourselves that relevant offenses were
compared and found to be different under the treaty’s legal
standard. With respect to the first three counts of the U.S.
indictment, that is and was easily done. Each is legally
distinct from the Belgian charges under the elements-based
analysis the district court recounted. And each is also
factually distinct from those charges to the extent that, as the
Belgian courts repeatedly underscored, the United States
charged Trabelsi with criminal acts encompassing but much
broader than the Belgium-specific crimes entailed by the plot
against Kleine-Brogel, for which he had already been
convicted and punished. Blockburger is satisfied on either
ground: Like the fact-based ne bis in idem approach,
Blockburger permits a subsequent prosecution under an
indictment listing identical legal elements so long as it
charges a different set of facts. That much is obvious. A
charge of a bank robbery that took place in 2015 does not bar
a subsequent charge of a different bank robbery in 2016. But
Blockburger additionally authorizes subsequent prosecution
arising from the same conduct or transaction (the 2015 bank
robbery undergirding both prosecutions) where a purely fact-
based approach would not, so long as the legal elements of the
subsequent charge are sufficiently distinct. See Felix, 503
U.S. at 389.
The district court’s opinion leads us up a bit of a blind
alley, however, by confining itself to an elements-based
11
analysis and then failing to demonstrate how Count IV and
Charge Q each requires an element not required by the other.
The opinion thus makes the Belgian and American material-
support counts appear to charge the same offense. Count IV
(Providing Material Support and Resources to Foreign
Terrorist Organization) seems materially identical to Charge
Q (“contribut[ing] to or [being] part of a private militia or any
other organizations of individuals whose purpose is to use
force”). J.A. 149; see also J.A. 388 (somewhat different
translation). Neither the courts nor executive officials,
whether in Belgium or in the United States, did an analysis
differentiating the elements of those two offenses. As I read
the relevant statutes and the record explanations, Count IV is
simply a narrower version of Belgian Charge Q. Any
organization that qualifies as a foreign terrorist organization
under U.S. law would also qualify as an “organization of
individuals whose purpose is to use force” under Belgian law.
See 8 U.S.C. §§ 1189(a)(1) (defining foreign terrorist
organization); id. § 1182(a)(3)(B)(iii) (defining terrorist
activity); 22 U.S.C. § 2656f(d)(2) (defining terrorism); J.A.
183 (Brussels Court of Appeals describing the prohibition on
private militias as “[t]argeted in particular [at] organizations
whose purpose is to use force, even if the use thereof is a
means for achieving the organization’s political objectives,”
and stating that “a potential organization of individuals that
tries to spread radical Islam by using force would constitute
an illegal private militia”).
Even if Count IV and Charge Q charged the same legal
elements, however, Count IV is not barred for the more basic
reason that—as the Belgians reasonably explained—at least
some version of Count IV rests on factually distinct acts of
material support for terrorism that were not the basis of
Trabelsi’s Charge Q prosecution in Belgium. For instance,
the United States alleges that, beginning in 2000, Trabelsi met
12
with conspirators in Europe and “ma[de] preparations to
travel to Afghanistan to train for jihad.” J.A. 33. Trabelsi
eventually “carried cash and computers, which he had brought
from Europe, to Afghanistan.” Id. at 34. And, according to
the U.S. indictment, Trabelsi received training and funding
from al Qaeda in Afghanistan and Pakistan. Id. at 34-35. The
Belgian authorities determined that, not only had Trabelsi not
been prosecuted in Belgium for that conduct, it had not even
been known to them at the time. See id. at 544. A material
support prosecution resting on such evidence charges a
distinct offense under Article 5.
***
The extraordinary deference the majority adopts is
unnecessary to the resolution of this case. Because the United
States seeks to prosecute Trabelsi for conspiracy rather than
substantive offenses in Counts I, II and II, those U.S. charges
are not barred by Article 5. To the extent that the United
States proves in support of Count IV different acts of material
support from those that supported the Belgian prosecution,
that U.S. charge is also not barred.
For these reasons, I concur in part and concur in the
judgment.