Opinion
No. 5:19-MJ-1571
2019-08-12
IN RE the EXTRADITION OF HUGHES LAGADEC
James E. Todd, Jr., Federal Public Defender's Office, Raleigh, NC, for Hugues Lagadec.
James E. Todd, Jr., Federal Public Defender's Office, Raleigh, NC, for Hugues Lagadec.
Certification of Extraditability
ROBERT T. NUMBERS, II, UNITED STATES MAGISTRATE JUDGE
This matter presents the question of whether the court should certify to the Secretary of State that it is appropriate to extradite Hughes Lagadec to France pursuant to an extradition request from that country. After considering the submissions and arguments of the parties, the court determines that it has jurisdiction over both this matter and Lagadec, that there is an extradition treaty in effect between the United States and France, that Lagadec's extradition would be appropriate under the treaty, and that there is probable cause to believe that Lagadec has committed the offenses French officials have charged him with. Thus the court will certify to the Secretary of State that it is appropriate to extradite Lagadec to France.
I. Background
In March 2019, the Government of France transmitted the latest of a series of extradition requests to the United States Department of State seeking the extradition of Hughes Lagadec. Gov Ex. 2. The extradition request arises out of a warrant issued by French authorities for Lagadec's arrest on charges of incestuous sexual assault on a minor of less than 15 years old and corruption of a minor of less than 15 years old. Gov. Ex. 1 at 15–19, 34–35.
The United States filed a complaint for arrest with a view towards extradition against Lagadec in this district in May 2019, which led the court to issue a warrant for his arrest. D.E. 1. The United States arrested Lagadec later that month and the court then ordered that he remain in custody pending the outcome of the extradition proceedings. D.E. 18
The court held an extradition hearing in July 2019 where the United States presented documentary evidence in support of extradition. Lagadec was present and represented by counsel at the hearing. The court also heard argument from both parties on whether it was appropriate to certify Lagadec for extradition. The charges against Lagadec stem from a complaint filed by his son with French authorities in early 2013. Gov. Ex. 1 at 15. The complaint alleged that between 2008 and 2012 Lagadec touched his granddaughter, who was 14 years old at the time of the complaint, in a sexual manner several times and sent her sexually explicit messages and photographs over the internet. Id.
Authorities interviewed the alleged victim in January 2013, about a week after the victim's father filed the complaint. Id. at 71. During the interview, the alleged victim claimed that Lagadec touched her "breasts, buttocks, and sometimes inside [her] trousers[.]" Id. at 73. The alleged victim claimed that although Lagadec never threatened her, he had physically restrained her while touching her. Id. at 74. In response to questions from the authorities, the alleged victim denied that Lagadec raped her. Id. at 76.
During this interview, the alleged victim also discussed her electronic communications with Lagadec. Id. at 76. She claimed that her grandfather sent her photos of his genitalia and told her that he wanted to have sex with her. Id. at 77. Authorities also asked about a nude photograph of her on her computer. Id. at 76. The alleged victim acknowledged the photo's existence, but said, "it was not for my grandfather and it was not at his request." Id.
Authorities conducted a second interview with the alleged victim in April 2013 to review the findings of an analysis of her computer. Id. at 63. During this interview the alleged victim confirmed that in November and December 2012 she engaged in a series of sexually explicit conversations with Lagadec over an instant messaging service. Id. at 64. The conversations involved Lagadec describing various sexual acts he wanted to perform with the alleged victim. Id. at 64–65. The alleged victim also confirmed that Lagadec sent her nude photos of himself and used a webcam to show the alleged victim that he was touching himself. Id. at 65. The alleged victim again asserted that she never had sex with Lagadec. Id. at 65–66.
The alleged victim appeared before an investigative judge for a hearing in January 2017. Id. at 47. During the hearing the alleged victim described how Lagadec would kiss her on the mouth, touch her breasts both above and underneath her clothes, and have her strip down to her underwear. Id. at 49. She explained that Lagadec would take his clothes off and masturbate while touching her breasts and genitalia. Id. Sometimes he would have the alleged victim take off her underwear. Id. And at times, according to the alleged victim, he would digitally penetrate her. Id. The alleged victim also recounted that "once or twice" she performed oral sex on Lagadec at his request. Id. There were also occasions in which Lagadec allegedly tried to have intercourse with her, but was unable to do so because she moved away from him. Id. at 52. When asked why she did not decline Lagadec's advances, she said, "I did not dare saying anything to my grandfather... I did not dare disobeying him." Id. at 49.
When the investigating judge asked the alleged victim why she had not mentioned several of these items in the past she said, "I do not really like to speak about these facts." Id. at 52.
The hearing also addressed issues related to the electronic communications between Lagadec and the alleged victim. The alleged victim again confirmed that Lagadec engaged in sexually explicit conversations with her, sent her nude photos, and showed himself masturbating on a webcam. Id. at 49–50. According to the alleged victim, Lagadec would ask her to touch her breasts while he masturbated. Id. at 52. Contrary to her earlier statement, the alleged victim also claimed that Lagadec took a nude photo of her through a webcam. Id. at 51. She claims it was Lagadec's idea to take the photo. Id .
Lagadec denies the allegations that he sexually assaulted the minor victim. Id. at 56. He maintains that the alleged victim and her family are fabricating the allegations against him. Id. at 56. He also claims that the alleged victim raped him in 2012. Id. at 57.
As for the electronic communications, Lagadec claims that he engaged in the explicit conversations with her "to build evidence" that the alleged victim "was portraying herself as an adult on various websites." Id. at 57. He claims that he sent the photographs to the alleged victim at a time when he did not know it to be her but thought he was sending the photos to a woman in her twenties. Id. at 56.
II. Analysis
Extradition proceedings are governed by 18 U.S.C. § 3184 and the terms of the treaty between the country where the fugitive is found and the country seeking extradition. After the fugitive is arrested, they must appear before a judicial official for an extradition hearing so "that the evidence of criminality may be heard and considered." 18 U.S.C. § 3184.
As the Fourth Circuit has explained, "[t]he extradition hearing is not a full trial; rather" it serves to inquire into three issues. Zhenli Ye Gon v. Holt , 774 F.3d 207, 210 (4th Cir. 2014). First, the judicial official must consider "whether there is probable cause to believe that there has been a violation of the laws of the foreign country requesting extradition[.]" Id. The second issue before the court is "whether such conduct would have been criminal if committed in the United States[.]" Id. And, third, the court must consider "whether the fugitive is the person sought by the foreign country for violating its laws." The court will also consider whether there is an extradition between the United States and France, as well as whether the court has subject matter jurisdiction over this matter and personal jurisdiction over Lagadec.
a. Jurisdiction of the Judicial Officer
The statute governing extradition of individuals to foreign countries allow magistrate judges to conduct extradition proceedings if they are authorized to do so "by a court of the United States." 18 U.S.C. § 3184. This court's local rules provide that "[a] magistrate judge ... may conduct extradition proceedings, in accordance with 18 U.S.C. § 3184." E.D.N.C. Local Criminal Rule 5.3(a). Thus the undersigned may conduct the extradition hearing here.
b. Jurisdiction Over the Fugitive
A court has jurisdiction to conduct extradition proceedings over any person found within its jurisdiction. 18 U.S.C. § 3184. Lagadec resided in and was found in Fayetteville, North Carolina, which is within the territorial jurisdiction of the Eastern District of North Carolina. Thus, this court has personal jurisdiction over him for this extradition proceeding.
c. Identity of the Fugitive
Lagadec does not dispute that he is the Hughes Lagadec named in the request for extradition. Based on the materials before the court and the arguments of counsel, the court finds that Lagadec is the person named in the extradition request.
d. Existence of Extradition Treaty
Before certifying that it is appropriate to extradite an individual to a foreign country, a court must determine that there is an extradition treaty in effect between the United States and the requesting country. 18 U.S.C. § 3184. The United States has submitted a declaration from Tom Heinemann, an Assistant Legal Advisor for the Department of State in Washington, D.C. Heinemann asserts that there is an extradition treaty in effect between the United States and France. Gov. Ex. 2. ¶ 2. The treaty is known as the Extradition Treaty between the United States of America and France, with Agreed Minute, signed on 23 April 1996 (the "1996 Treaty"), and the Instrument as contemplated by Article 3, paragraph 2, of the Agreement on Extradition between the United States of America and the European Union signed 25 June 2003, as to the application of the Extradition Treaty between the United States of America and France, with Agreed Minute, signed on 23 April 1996, signed 30 September 2004 (the "Instrument" and collectively "the Treaty"). Based on Heinemann's declaration, the court finds that the Treaty is in full force and effect between the United States and France.
e. Alleged Crimes are Extraditable Under the Treaty
As is relevant here, under the Treaty, a person is only subject to extradition if "the competent authorities in the Requesting State have charged [the person] with ... an extraditable offense." 1996 Treaty Art. 1. An extraditable offense is one punishable "under the laws in both States by deprivation of liberty for a maximum of at least one year or by a more severe penalty." Id. Art. 2. This is known as a dual criminality provision.
But even if authorities have charged someone with an extraditable offense, the treaty exempts them from extradition "if prosecution has been barred by lapse of time under the laws of the Requested State." Id. at Art. 9. Thus, before certifying Lagadec for extradition, the court must determine whether the United States and France both punish his alleged crimes by more than a year in prison and whether the United States' statute of limitations would bar Lagadec's prosecution if he were charged under the laws of this country.
i. Dual Criminality
The Fourth Circuit discussed the dual criminality requirement in Zhenli Ye Gon v. Holt . The Court of Appeals explained that the Supreme Court has "held that dual criminality is satisfied ‘if the particular act charged is criminal in both jurisdictions,’ even if the name of the offense or the scope of the liability was different in the two countries." 774 F.3d at 217 (quoting Collins v. Loisel , 259 U.S. 309, 312, 42 S.Ct. 469, 66 L.Ed. 956 (1922) ). Thus, so long as "the offenses in the two countries punish the same basic evil" the dual criminality requirement "does not require that the offenses contain identical elements." Id.
A court considering the dual criminality prong can consider whether the alleged conduct is illegal under the laws of the United States, the laws of the state where the fugitive is found, or the law of a preponderance of the states. See Wright v. Henkel , 190 U.S. 40, 60–61, 23 S.Ct. 781, 47 L.Ed. 948 (1903) (explaining, in the context of an extradition treaty, that "the laws of both countries included the laws of their component parts."); DeSilva v. DiLeonardi , 125 F.3d 1110, 1114 (7th Cir. 1997) ; Hu Yau-Leung v. Soscia , 649 F.2d 914, 918 (2d Cir. 1981) ; Cucuzzella v. Keliikoa , 638 F.2d 105, 107 (9th Cir. 1981) ; Brauch v. Raiche , 618 F.2d 843, 851 (1st Cir. 1980). Accord In re the Extradition of Prushinowski , 574 F. Supp. 1439, 1446 (E.D.N.C. 1983).
Both crimes that French authorities have charged Lagadec with violating are illegal under the laws of the United States. There are a number of North Carolina and federal laws that criminalize the alleged conduct that led to the charge of sexual assault of a minor under the age of 15. 18 U.S.C. §§ 2243(a), 2244(a) ; N.C. Gen. Stat. §§ 14–27.28, 14–27.30(a). These offenses are all punishable by more than one year in prison. 18 U.S.C. §§ 2243(a), 2244(a) ; N.C. Gen. Stat. §§ 14–27.28, 14–27.30(a).
Similarly, Lagadec's alleged conduct related to the sexually explicit conversations and the transmission of nude photos to a minor would violate various provisions of the United States Code and the North Carolina General Statutes. 18 U.S.C. §§ 1470, 2422(b), 2251(a) ; N.C. Gen. Stat. §§ 14–1907, 14–202.1. These crimes would also be punishable by more than one year in prison. 18 U.S.C. §§ 1470, 2422(b), 2251(a) ; N.C. Gen. Stat. §§ 14–1907, 14–202.1.
The evidence before the court also establishes that Lagadec faces at least a year in prison in France if he were convicted of the charged offenses. Code Pénal [C. Pén.] [Penal Code] art. 227–22 (explaining that under French law corruption of a minor is punishable by a five-year term of imprisonment), Gov. Ex. 1 at 31; C. Pén. art. 222–27 (explaining that under French law sexual assault other than rape is punishable by a five-year term of imprisonment).
Lagadec may face enhanced penalties because of his relationship with the victim, C. Pén. art. 222-30, Gov. Ex. 3 at DOJ_Lagadec_000206, and the alleged victim's age, C. Pén. art. 222-29-1, Gov. Ex. 3 at DOJ_Lagadec_000203. But the standard penalties for the charged offenses satisfy this element.
The court finds that both offenses charged by French authorities are punishable "under the laws in both States by deprivation of liberty for a maximum of at least one year or by a more severe penalty." 1996 Treaty Art. 2. Thus they qualify as extraditable offenses under the Treaty.
ii. Statute of Limitations
As noted above, the Treaty does not authorize the United States to extradite a fugitive if his prosecution for the alleged crime would be barred by this country's statute of limitations. In response to a challenge from Lagadec on this point, the United States points the court to, among other things, 18 U.S.C. § 3299, which provides that "[n]otwithstanding any other law, an indictment may be found or an information instituted at any time without limitation for ... any felony under chapter 109A, 110 (except for section1 2257 and 2257A), or 117[.]" The specified chapters contain the federal offenses that provide the basis for the court's dual criminality finding above. Under this provision, Lagadec's prosecution in the United States, if the alleged crimes were committed here, would not be barred by the statute of limitations. Thus, the Treaty's provision regarding the statute of limitations does not prevent Lagadec's extradition.
f. Probable Cause to Support the Alleged Crimes
The final issue the court must consider is whether there is " evidence sufficient to sustain the charge" against Lagadec. 18 U.S.C. § 3184. When making this assessment, the judicial official "applies the same probable cause standard that applies in federal preliminary hearings, ‘meaning that the magistrate judge's role is merely to determine whether there is competent evidence to justify holding the accused to await trial.’ " Haxhiaj v. Hackman , 528 F.3d 282, 287 (4th Cir. 2008) (quoting Ordinola v. Hackman , 478 F.3d 588, 608 (4th Cir. 2007) (Traxler, J., concurring)). Thus the court must determine whether "there is reasonable ground to believe that the crime charged has been committed[.]" Collier v. Vaccaro , 51 F.2d 17, 20 (4th Cir. 1931). The court will address each charge in turn.
i. Sexual Assault
Sexual assault in France involves "any sexual conduct committed by the use of violence, constraint, threat, or surprise." C. Pén. art. 222–22, Gov Ex. 1 at 22. According to the French Extradition Order, Lagadec sexually assaulted the alleged victim "by undertaking towards her sexually-oriented touching, with the circumstances that these facts were carried out towards a minor-of-age of less than 15 years old, as she was born on 3rd February 1998, and by an ascendant, as he is the victim's grandfather[.]" Gov. Ex. 1 at 17. The court will first address whether there is probable cause to believe that Lagadec engaged in sexual conduct with the alleged victim and will then turn to whether the conduct was the result of violence, constraint, threat, or surprise.
a. Sexual Conduct
The alleged victim claims that at various times Lagadec has touched her breasts and buttocks many times. She further maintains that he has digitally penetrated her vagina, had her stroke his penis, and has enticed her to perform oral sex on him. All of these actions, either individually or in concert, constitute sexual conduct and, thus establish probable cause to believe that Lagadec engaged in sexual conduct with the alleged victim.
Lagadec argued at the extradition hearing that there may not be probable cause for the sexual assault charge because the alleged victim gave conflicting statements about whether she had a sexual relationship with Lagadec. During two interviews in 2013, when she was 14 and 15 years old, the alleged victim denied having a sexual relationship with Lagadec. But in 2017, when she was 18 years old, she claims that she performed oral sex on him and that he attempted, but could not, have sex with her. When confronted about the discrepancy, the alleged victim sought to explain away the omission by saying, "I do not really like to speak about these facts." Gov. Ex. 1 at 52. There is also conflicting testimony about Lagadec's involvement in the creation of a nude photo of the alleged victim found on her computer. Compare Gov. Ex. 1 at 76 with Gov. Ex. 1 at 51-52.
To begin with, even if the court were to exclude the testimony that Lagadec challenges, there would still be probable cause to support the sexual assault charge against him. The sexual assault charge is based on sexually oriented touching, and the alleged victim made repeated and consistent statements that Lagadec fondled her breasts and buttocks on numerous occasions. These statements provide probable cause to believe that Lagadec engaged in sexual assault as alleged by French authorities.
The alleged victim's change in testimony does raise questions about her credibility. But child sexual assault cases often involve victims who have delayed, minimized, or recanted their stories, and expert testimony is often offered to try to convince the fact finder that this behavior is typical of child sexual abuse victims. See, e.g. , United States v. Betcher , 534 F.3d 820, 826 (8th Cir. 2008) (discussing admission of expert testimony on delayed disclosure of child sexual abuse victims); United States v. Bighead , 128 F.3d 1329, 1330 (9th Cir. 1997) (same). Given that the alleged victim has a plausible explanation for why she withheld this information and the regularity with which this issue arises in child sexual assault cases, the court cannot say that this type of inconsistent statement can defeat probable cause in the context of child sexual abuse allegations.
b. Use of Violence, Constraint, Threat, or Surprise
In his written submission to the court, Lagadec challenged whether the United States had shown probable cause to establish that the sexual conduct occurred through the use of violence, constraint, threat, or surprise, as required by French law. In response, the United States submitted portions of the French Penal Code that address these elements of sexual assault.
The French Penal Code expand on what it means to commit sexual assault through constraint or surprise in three ways. First, "constraint ... may be physical or moral in nature." C. Pén. art. 222–22–1, Gov. Ex. 3 at DOJ_Lagadec_000200. Second, if the victim is a minor, moral constraint or surprise may exist given "the age difference" between the victim and the assailant and the "de jure or de facto authority" the assailant has over the victim. Id. And third, if the victim is "a minor of fifteen years, the moral constraint or surprise is characterized by the abuse of the vulnerability of the victim that does not have the necessary discernment for these acts." Id.
There are two reasons to conclude that any sexual contact between Lagadec and the alleged victim resulted from constraint or surprise.
To begin with, the alleged victim claims that at least once Lagadec was able to touch her in a sexual manner because he would not let her go. Gov. Ex. 1 at 74. This statement is sufficient to conclude that there is probable cause to believe that Lagadec relied on physical constraint in the course of their sexual contact.
And there is evidence supporting a claim that the sexual contact was the result of surprise or moral constraint. The facts demonstrate that there was a substantial age difference between Lagadec and the alleged victim. Lagadec was over 60 years old and the alleged victim was under 15 years old at the time of the allegations here. Gov. Ex. 1 at 15 (describing Lagadec's year of birth as 1942), 63 (describing the alleged victim's year of birth as 1998). There is also evidence that Lagadec had de jure authority over the alleged victim. She repeatedly said that she complied with or acquiesced in Lagadec's sexual requests because he was her grandfather. Id. at 49 ("As I did not dare to say no, I did it.") ("I did not dare saying anything to my grandfather... I did not dare disobeying him."). These facts and statements establish probable cause to believe that sexual contact occurred by way of surprise or moral constraint because of the age difference between Lagadec and the alleged victim as well as his de jure authority over her.
Thus the court finds that there is probable cause to support the allegation that Lagadec sexually assaulted the alleged victim.
ii. Corruption of a Minor
French law makes it illegal to assist or attempt to assist in the corruption of a minor. C. Pén. art. 227–22. Gov. Ex. 1 at 31. The Cour de Cassation, France's highest court , has defined this offense as involving "actions which by their nature, reflects the will from their author to pervert the sexuality of a minor." Gov. Ex. 3 at DOJ_Lagadec_000193. After reviewing the exchanges between Lagadec and the alleged victim, who was a minor at the time of the conversations, Gov. Ex. 1 at 89–120, the court finds that there is probable cause to support this allegation against Lagadec.
About the Cour de Cassation, https://www.courdecassation.fr/about_the_court_9256.html (last visited Aug. 7, 2019). See Eastern Airlines, Inc. v. Floyd , 499 U.S. 530, 538 n.6, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (describing the Cour de Cassation as "the highest French court of ordinary jurisdiction"); Fakhri v. Marriott Int'l Hotels, Inc. , 201 F. Supp. 3d 696, 705 (D. Md. 2016) (describing the Cour de Cassation as "the highest French court").
III. Conclusion
Based on the foregoing findings, the Court concludes that Lagadec is extraditable for each offense for which the French government seeks his extradition and certifies this finding to the Secretary of State under 18 U.S.C. § 3184.
The court orders the Clerk of the Court to deliver a certified copy of this Certification of Extraditability to the United States Attorney for the Eastern District of North Carolina, the Secretary of State (to the attention of the Legal Adviser), and the Director, Office of International Affairs, Criminal Division, U.S. Department of Justice, in Washington, D.C.
The court also commits Lagadec to the custody of the United States Marshal pending final disposition of this matter by the Secretary of State and arrival of agents of France. Upon their arrival, the United States Marshall shall transfer Lagadec to the custody of the agents of France at a mutually agreeable time and place.