Opinion
CASE NO. 02-21420-CIV-DUBE
April 7, 2004
ORDER ON EXTRADITION
THIS CAUSE is before the Court on the request by the Government of Portugal for the extradition of Enrique Alfonso Fuminaya Aguilar ("Fuminaya") pursuant to the Convention on Extradition between the United States and Portugal (the "Treaty").
In response to the Complaint filed in this case, Fuminaya has asserted multiple grounds for the denial of the extradition request, as contained in the Memorandum in Opposition to Extradition (D.E. #23) and the Supplemental Memorandum in Opposition to Extradition.
In accordance with the ore tenus ruling issued by the Court during the hearing held on this matter, the issues raised have been bifurcated. Accordingly, the only issues to be addressed initially are those related to (1) whether the lack of physical presence in Portugal precludes extradition and if not, (2) the sufficiency of the identification of Fuminaya as the requested person.
Fuminaya contends that the extradition sought on the charges of conspiracy and drug trafficking is improper based on the terms of the Treaty between the United States and Portugal since it is uncontroverted that Fuminaya has never been in Portugal. The Government responds that while extradition may not be proper under the terms of the original treaty, any prohibition has been removed by the terms of a subsequent international agreement (the "Vienna Convention") entered into by both the United States and Portugal in 1988. Since there is no dispute raised as to the fact that Fuminaya was never in Portugal, the resolution of the issue before the Court turns on the interpretation and interrelation of the Treaty and the Vienna Convention.
The provision of the Treaty at issue in this case is contained in Article I, which states as follows:
It is agreed that the Government of the United States of America and the Government of His Most Faithful Majesty the King of Portugal and of the Algarves shall, upon mutual requisition duly made as herein provided, deliver up to justice any person who may be charged with or may have been convicted of any of the crimes specified in Article II of this Convention committed within the jurisdiction of one of the Contracting Parties while said person was actually within such jurisdiction when the crime was committed, and who shall seek an asylum or shall be found within the territories of the other, provided that such surrender shall take place only upon such evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed.
(emphasis added).
According to Fuminaya, the clear language of this provision combined with the statement by the Government of Portugal that Fuminaya has never been in Portugal precludes the present extradition. The Government argues that the above quoted language was modified by the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention), which provides in pertinent part as follows:
Article 3
Offences and Sanctions
1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: (c) Subject to its constitutional principles and the basic concepts of its legal system:
(iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counseling the commission of any of the offenses established in accordance with this article.
Article 4
Jurisdiction
1. Each Party:
(b) May take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when:
(iii) The offence is one of those established in accordance with article 3, paragraph 1, subparagraph (c)(iv), and is committed outside its territory with a view to the commission, within its territory, of an offence established in accordance with article 3, paragraph 1.
Article 6
Extradition
1. This article shall apply to the offences established by the Parties in accordance with article 3, paragraph 1.
2. Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. The Parties undertake to include such offences as extraditable offenses in every extradition treaty to be concluded between them.
5. Extradition shall be subject to the conditions provided for by the law of the requested Party or by applicable extradition treaties, including the grounds upon which the requested Party may refuse extradition.
9. Without prejudice to the exercise of any criminal jurisdiction established in accordance with its domestic law, a Party in whose territory an alleged offender is found shall:
(a) If it does not extradite him in respect of an offence established in accordance with article 3, paragraph 1, on the grounds set forth in article 4, paragraph 2, subparagraph (a), submit the case to its competent authorities for the purpose of prosecution, unless otherwise agreed with the requesting Party;
(b) If it does not extradite him in respect of such an offence and has established its jurisdiction in relation to that offence in accordance with article 4, paragraph 2, subparagraph (b), submit the case to its competent authorities for the purpose of prosecution, unless otherwise requested by the requesting Party for the purpose of preserving its legitimate jurisdiction.
The provision relating to presence in the country found in Article I of the Treaty was at issue in Gouveia v. Vokes, 800 F. Supp. 241 (E.D. Pa, 1992). In that case, Gouveia argued that there was not sufficient proof that he was in Portugal when the crime (counterfeiting conspiracy) for which he was convicted occurred. The court rejected this contention, finding that there was uncontroverted evidence that he was in fact present in Portugal during the time when some of the activity relating to the crime occurred. Gouveia is factually distinguishable from the instant case, where there is no contention whatsoever that Fuminaya was in Portugal at any time, but does support the argument that the provision, if properly applicable, can in fact bar an extradition.
According to one commentator, a limitation permitting extradition only with offenses "committed within the jurisdiction" of the requesting country is contained in almost all of the extradition treaties negotiated by the United States prior to 1960. Under these treaties, the United States lacks the authority to grant extradition with respect to offenses committed outside the territory of the requesting country. See. Michael Abbell, Extradition to and from the United States, § 3-2(5), p. 3-18 (Transnational Publishers, Inc., 2002). The Treaty between the United States and Portugal, ratified in 1908, not only contains language that the offense be committed within the jurisdiction, but adds the requirement that the person to be extradited be within the jurisdiction at the time the offense was committed. As noted above, this prerequisite cannot be met in this case.
The Government of Portugal seemingly concedes, as it must, that under the 1908 treaty, the extradition of Fuminaya would not be permitted. However, Portugal contends that this is not dispositive based on the provisions of the Vienna Convention. Specifically, the Government relies on the fact that drug conspiracies are included as extraditable offenses under the Convention. Thus, according to the Government, aiding and abetting the co-defendants and being a part of the conspiracy are sufficient to allow for extradition.
This Court disagrees with the Government's interpretation of the Treaty and Convention. The Convention merely added extraditable offenses, it did not in any way constitute a blanket modification of the Treaty which would eliminate the presence in the country requirement. The Court also notes that Article 6, paragraph 5 of the Vienna Convention specifically states that any extradition is subject to the conditions provided for by "applicable extradition treaties," Furthermore, the original Treaty itself contained offenses which could be committed outside of Portugal, but the presence limitation was nevertheless in place. Accordingly, this Court finds that the Convention cannot afford the relief that the Government of Portugal seeks.
Similarly, while the cases cited by the Government of Portugal in its response to the Supplemental Memorandum in Opposition to Extradition provide for the prosecution of a conspiracy offense even though the defendant was not present in the prosecuting jurisdiction, the cases do not involve the issue of whether the defendant could be extradited or the impact of the specific treaty language present here, and thus, are not applicable to the disposition of this matter.
CONCLUSION
This Court finds that the lack of physical presence by Fuminaya in Portugal precludes his extradition based on the express language contained in Article I of the Treaty between the United States and Portugal which has not been altered by any subsequent agreements, including the Vienna Convention. Based on the determination that extradition is not proper under the terms of the Treaty, this Court need not address the argument related to the sufficiency of the identification for the extradition.Accordingly, it is ORDERED AND ADJUDGED as follows:
(1) The request for extradition is DENIED and this Court will NOT issue a Certificate of Extradition to the Secretary of State recommending that Enrique Alfonso Fuminaya Aguilar be extradited to Portugal.
(2) In accordance with the ore tenus ruling made by the Court, the Motion to Bifurcate (D.E. #43-1) is GRANTED.
(3) The Motion to Continue Final Extradition Hearing (D.E. #43-2) is DENIED as MOOT.
(4) This case is CLOSED and any pending motions are DENIED as MOOT.
DONE AND ORDERED.