Opinion
Case No. 1:20-MJ-354
2021-04-08
In the MATTER OF the EXTRADITION OF Jean Guy Guillaume ETOUMAN
Whitney E.C. Minter, Office of the Federal Public Defender (Alexandria), Alexandria, VA, for Jean Guy Guillaume Etouman.
Whitney E.C. Minter, Office of the Federal Public Defender (Alexandria), Alexandria, VA, for Jean Guy Guillaume Etouman.
CERTIFICATION OF EXTRADITION AND COMMITTAL OF JEAN GUY GUILLAUME ETOUMAN
John F. Anderson, 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 Jean Guy Guillaume Etouman ("Etouman") 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 Etouman, that there is an extradition treaty in full force and effect between the United States and France, that Etouman's extradition would be appropriate under the treaty, and that probable cause exists to believe Etouman has committed the offenses charged by French officials. For the reasons explained below, the court certifies to the Secretary of State that it is appropriate to extradite Etouman to France and that Etouman shall be held in custody pending a decision from the Secretary of State concerning whether to extradite Etouman.
I. BACKGROUND
Between May 2020 and January 2021, the Government of France transmitted a series of extradition requests to the United States Department of State seeking the extradition of Etouman. (Docket no. 16-1 at 5–11). On December 16, 2020, the United States filed a complaint for arrest with a view towards extradition against Etouman in this District, as well as the French warrant and conviction in absentia. (Docket nos. 1–2). On the same day, the court issued an arrest warrant for Etouman. (Docket no. 3). The arrest warrant was executed on December 16, 2020. (Docket no. 4). On December 17, 2020, Etouman made his initial appearance in this court, counsel was appointed to represent him in this matter, and a detention hearing was scheduled. (Docket no. 5). On December 18, 2021, the court held a detention hearing where Etouman was represented by counsel and, after hearing arguments from counsel, the court ordered that Etouman remain in custody pending further proceedings. (Docket nos. 9–11). On February 10, 2021, the court set a briefing schedule and scheduled an extradition hearing for Etouman for March 30, 2021. (Docket nos. 14–15). Prior to the scheduled extradition hearing, the United States submitted a memorandum in support of extradition, Etouman submitted an opposition to the extradition request, and the United States submitted a reply. (Docket nos. 16–18). On March 30, 2021, the extradition hearing was continued to April 5, 2021. (Docket no. 19). Etouman appeared at the extradition hearing on April 5, 2021 and counsel for the United States and Etouman presented arguments to the court regarding the extradition request. (Docket no. 20).
The extradition request arises out of a warrant issued for the arrest of Etouman and his conviction in absentia on charges of rape of a vulnerable person and theft at the expense of a vulnerable person. (Docket no. 16-2 at 10). As described in the Details of the Charges included in the request for extradition (Docket no. 16-2 at 27–38), Etouman met with his brother, Paul Etouman, and a friend, Benjamin Chelly, at the Le Saint nightclub in Paris, France on the night of September 29, 2001. Id. at 33–34. The alleged victim, a Finnish national, age 27, was living in Paris at the time and met two young men, who seemed to know each other well, at Le Saint that night. Id. at 33. One of the two men was Benjamin Chelly. Id. at 33–34. The other man, the victim stated, accompanied her home after leaving Le Saint at around 5:30 a.m. on September 30, 2001. Id. at 33. The victim stated they started drinking again once at her home and she fell asleep, but when she woke up around 10:30 a.m. he was gone and her residence card, Finnish passport, bank card, two cell phones, and around four hundred francs in cash were all missing. Id. The victim stated the key to her apartment was also gone and her apartment had been locked from the outside. Id. A note had been left directing the victim to take the morning-after pill. Id.
The victim filed a complaint and provided testimony at the police station, stating she had suffered memory loss during the night of the events, had consumed five to six beers and some vodka at her home but that alcohol usually did not have such an effect on her (an assertion corroborated to French police by a friend of the victim). Id. The victim also told police that she was not wearing pants or undergarments when she woke up, despite falling asleep in them and having no memory of sexual intercourse. Id. French investigators collected the bottle of vodka the victim identified as the alcohol consumed at her home, and a toxicological analysis found Gamma-Hydroxybutyric ("GHB") in the bottle. Id. The victim later stated that she had long had the bottle of vodka, had been drinking from it with her friends on the night in question before going to Le Saint, and none of them reported feeling unwell afterwards. Id. at 36. The investigators also collected the victim's bedspread, pants, and undergarments, and took vaginal and anal swabs from the victim. Id. at 33. Spermatozoa was found in the swabs taken from the victim, as well as on the victim's bedspread, pants, and undergarments. Id. Experts in France identified the DNA in the swabs and the DNA in the other items as Etouman's based on a sample later taken from him. Id.
After initially denying going to Le Saint on the evening in question, Etouman admitted to meeting the victim there, alleged they had consensual sex after drinking three additional glasses of alcohol at her home, admitted to stealing from the victim, admitted to writing the note directing the victim to take contraception, and admitted to locking the victim in her apartment. Id. at 34. Etouman's brother told investigators that Etouman told him that the victim had fallen asleep before the sexual intercourse and that Etouman decided to steal from the victim because he did not like her "attitude" among other things. Id. at 35. Etouman was charged on March 29, 2002 along with another individual, but on June 23, 2003, Etouman retracted accusations against the other accused and the charges against that individual were dismissed. Id. at 36–37. The victim later stated that shortly after having her last drink at Le Saint, offered to her by Etouman, she was in a state of stupor and lost all memory of subsequent events. Id. at 37. The victim denied having been romantically or sexually interested in Etouman, describing him as young, and stated she did not usually bring strangers home. Id. Etouman stated he only went to the victim's home to rob her but decided to have sexual intercourse with her once in the apartment, and alleged that the victim had offered to have sex with him while they were still at Le Saint. Id. An expert conducted a medical examination of the victim and concluded that she had no personality disorders, no structural disturbance in her memory, and no mythomania or pathological tendency to lie or exaggerate. Id. Instead, the expert found that the victim was intelligent, with good adaptability and good acceptance of reality; her credibility was "not questionable"; and assessed the victim to have post-traumatic stress from the incident. Id.
II. ANALYSIS
Extradition proceedings are governed by 18 U.S.C. § 3184 and the terms of the relevant treaty between the country where the fugitive is found and the country seeking extradition. After the fugitive is arrested, that individual 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 its purpose is to determine (1) whether there is probable cause to believe that there has been a violation of the laws of the foreign country requesting extradition, [and] (2) whether such conduct would have been criminal if committed in the United States." Zhenli Ye Gon v. Holt , 774 F.3d 207, 210 (4th Cir. 2014). The court must also determine whether there is an extradition treaty in full force and effect between the United States and the country requesting extradition, and whether the court has subject matter jurisdiction over the extradition proceeding and personal jurisdiction over the fugitive. See, e.g., In re Extradition of Exoo , 522 F. Supp. 2d 766, 775 (S.D. W. Va. 2007) (citing Extradition of Garcia , 890 F. Supp. 914, 917 (S.D. Cal. 1994) ).
A third issue also commonly addressed is "whether the fugitive is the person sought by the foreign country for violating its laws." Zhenli Ye Gon , 774 F.3d at 210. That issue is not disputed in this case. See Docket no. 17 at 2. Based on the materials provided, the court finds Etouman is the person named in the extradition request. See Docket no. 16-2 at 3–12, 20, 54–55.
A. Jurisdiction of the Judicial Officer
The statute governing the extradition of individuals to foreign countries allows 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 "magistrate judges ... are authorized ... to perform all duties authorized or allowed to be performed by United States magistrate judges by the United States Code." E.D. Va. Local Criminal Rule 5; E.D. Va. Local Civil Rule 72. Thus, the undersigned is authorized to conduct this extradition hearing. The undersigned's jurisdiction over this extradition proceeding is also not in dispute. See Docket no. 17 at 2.
B. Jurisdiction Over Etouman
A court has jurisdiction to conduct extradition proceedings over any person found within its jurisdiction. 18 U.S.C. § 3184. Etouman was arrested at Dulles International Airport in Dulles, Virginia (Docket no. 4), which is within the territorial jurisdiction of the Eastern District of Virginia. Thus, this court has personal jurisdiction over Etouman for this proceeding.
C. Existence of Extradition Treaty in Full Force and Effect
The United States has submitted a declaration from Stacy Hauf, an Attorney Advisor in the Office of the Legal Advisor for the Department of State in Washington, D.C., asserting there is an extradition treaty in full force and effect between the United States and France. (Docket no. 16-1 at 3–4). The treaty is known as the Extradition Treaty between the United States of America and France, with Agreed Minute, signed on April 23, 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 on June 25, 2003, as to the application of the Extradition Treaty between the United States of America and France signed on April 23, 1996, signed September 30, 2004 (the "Instrument" and collectively "the Treaty"). Id. at 3 ¶ 2. Based on Hauf's declaration, the court finds the Treaty is in full force and effect.
D. Dual Criminality
The court must determine whether the particular acts for which Etouman was charged are crimes in the United States. Zhenli Ye Gon , 774 F.3d at 210. The Fourth Circuit has held that
[D]ual 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. This language has been broadly accepted as establishing that dual criminality requires only that the offenses in the two countries punish the same basic evil; it does not require that the offenses contain identical elements.
Although it is undisputed, the probable cause analysis below also establishes that Etouman's alleged actions were criminal under the French laws for which he was charged and convicted in absentia. See infra Section II.E.i. –ii.
Id. at 217 (quoting Collins v. Loisel , 259 U.S. 309, 312, 42 S.Ct. 469, 66 L.Ed. 956 (1922) ). The question is whether the conduct is illegal under United States federal law, the law of the state in which the fugitive was found, or the law of a preponderance of states. See Wright v. Henkel , 190 U.S. 40, 60–61, 23 S.Ct. 781, 47 L.Ed. 948 (1903). The relevant section of Article 2 of the Treaty requires that for a criminal act to constitute an extraditable offense, it must be punishable in both the United States and France "by a deprivation of liberty for a maximum of at least one year." (Docket no. 16-1 at 17).
i. The Rape Charge
Etouman was charged under French Penal Code article 222-23, which criminalizes any "act of sexual penetration, of whatever nature, committed on the person of others by violence, constraint, threat, or surprise." (Docket no. 16-2 at 9–10, 39). The United States asserts three statutes in the United States criminalize the same conduct for which Etouman was charged with rape in France. (Docket no. 16 at 15–16). The United States argues Etouman's acts would be illegal under 18 U.S.C. § 2241(b)(1) and (2) which criminalizes any act in a federal jurisdiction where an individual knowingly (1) "renders another person unconscious and thereby engages in a sexual act with that other person" or (2) "administers to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby ... substantially impairs the ability of that other person to appraise or control conduct; and ... engages in a sexual act with that person." Id. at 15–16. The third law is Va. Code § 18.2-61(A), which criminalizes sexual intercourse with an individual accomplished "through the use of the [individual]’s mental incapacity or physical helplessness." Id. at 16.
It is undisputed that these federal and state laws meet the term of deprivation of liberty requirement in the Treaty. 18 U.S.C. § 2241(b)(1) and (2) allow imprisonment for "any term of years or life"; Va. Code § 18.2-61 (B) requires imprisonment for "not less than five years" for violations of § 18.2-61 (A). The French authorities charged Etouman under art. 222-24 (supplementary to art. 222-23) which provides a twenty-year sentence when the rape is "committed on a person whose particular vulnerability ... is apparent or known" to the perpetrator. (Docket no. 16-2 at 39).
Etouman argues 18 U.S.C. § 2241(b) criminalizes different conduct than French Penal Code article 222-23, and that French Penal Code article 222-24 is merely a sentencing enhancement. (Docket no. 17 at 3–4). "Accordingly, the same conduct is not necessarily unlawful under both statutes." Id. at 4. The question, however, is not whether the relevant French and United States laws criminalize precisely the same conduct, but whether the particular acts that constituted the criminal charge in France are also illegal in the United States. See Zhenli Ye Gon , 774 F.3d at 217. Both 18 U.S.C. § 2241(b) and Va. Code § 18.2-61(A) criminalize the same acts underlying the French rape charge. Etouman is alleged to have put GHB in the victim's drinks and to have engaged in sexual intercourse with the victim while she was unconscious due to the GHB. (Docket no. 16-2 at 33-37). This is illegal under 18 U.S.C. § 2241(b) because it is a sexual act engaged in with someone Etouman allegedly knowingly rendered unconscious or administered a drug to without her knowledge or permission that impaired her ability to appraise or control conduct. This is also illegal under Va. Code § 18.2-61(A) because Etouman allegedly accomplished the sexual intercourse through the victim's mental incapacity or physical helplessness—her having been rendered unconscious or impaired by the GHB Etouman put in her drinks. Accordingly, the dual criminality requirement is met because the particular acts underlying the rape charge are illegal under laws in the United States.
Etouman does not explicitly assert that Va. Code. § 18.2-61(A) criminalizes different conduct than French Penal Code art. 222-23. (Docket no. 17 at 2–8).
ii. The Theft Charge
The United States asserts three laws criminalize the same conduct in the United States for which Etouman was charged with theft in France, noting French Penal Code article 311-1 criminalizes the "fraudulent theft of another's thing." (Docket no. 16 at 16–17) (alteration omitted). The United States argues Etouman's acts were illegal under: 1) 18 U.S.C. § 661 which criminalizes the "tak[ing] and carr[ying] away, with intent to steal ... any personal property of another"; 2) 18 U.S.C. § 2111 which criminalizes "by force and violence, or by intimidation, tak[ing] ... from the person or presence of another anything of value"; and 3) Va. Code § 18.2-95(i) which criminalizes "larceny from the person of another of ... things of value of $5 or more." Id. Violations of 18 U.S.C. § 661 are punishable by imprisonment of at least up to one year. Violations of 18 U.S.C. § 2111 are punishable by imprisonment for up to fifteen years. Violations of Va. Code § 18.2-95(i) are punishable by imprisonment for up to twenty years. Etouman asserts that 18 U.S.C. § 661 criminalizes different conduct than art. 311-1 because it requires the theft of property to be valued at more than $1,000 for the crime to be a felony, asserting that the Treaty prohibits extradition for conduct not punishable by more than one year imprisonment and that the statutes have different elements, vitiating dual criminality. (Docket no. 17 at 5–6). Etouman also asserts that 18 U.S.C. § 2111 and Va. Code § 18.2-95 criminalize robbery—taking from the person or presence of another—whereas the French Penal Code article 311-1 criminalizes theft not limited to robbery, vitiating dual criminality. Id. at 6–7.
French Penal Code art. 311-4 (supplementary to art. 311-1) authorizes imprisonment for up to five years. (Docket no. 16-2 at 40).
As discussed above, the issue is whether the particular acts that constituted the criminal charge in France are also illegal in the United States. See Zhenli Ye Gon , 774 F.3d at 217. Regarding 18 U.S.C. § 661, Etouman appears to conflate the Treaty requirement that the crime be punishable by a deprivation of liberty for at least one year to the crime being a felony. See Docket no. 17 at 5–6. The Treaty does not require that the crime be a felony. (Docket no. 16-1 at 17). Even assuming Etouman stole less than $1,000, 18 U.S.C. § 661 would still allow imprisonment for up to one year, therefore the Treaty's length of deprivation of liberty requirement would be met. The question, therefore, is whether the acts alleged to have been committed by Etouman underlying the French theft charge would violate 18 U.S.C. § 661. Etouman admitted to stealing various items from the victim, including cash, cell phones, her apartment key, passport, residence card, and bank card. (Docket no. 16-2 at 33–34). Accordingly, the dual criminality requirement is met because the particular acts underlying the theft charge are illegal under laws in the United States that meet the Treaty requirements.
The acts alleged would be crimes under 18 U.S.C. § 2111 and Va. Code § 18.2-95(i) as well if any of the items were taken from the victim's person. Furthermore, Va. Code § 18.2-96 criminalizes larceny "not from the person of another of goods ... of the value of less than $1,000," deeming it a "Class 1 misdemeanor." Class 1 misdemeanors are punishable by "confinement in jail for not more than [i.e. up to] twelve months." Va. Code § 18.2-11.
E. Probable Cause
The court must determine whether there is "evidence sufficient to sustain the charge[s]" against Etouman. 18 U.S.C. § 3184. "[T]he same probable cause standard that applies in federal preliminary hearings [applies here], ‘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)). Probable cause is less than the evidence necessary to convict (beyond a reasonable doubt), but more than a bare suspicion. See Brinegar v. United States , 338 U.S. 160, 174–75, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). "[P]robable cause is a reasonable ground for belief of guilt." Maryland v. Pringle , 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Brinegar , 338 U.S. at 175, 69 S.Ct. 1302 ). "Probable cause exists if, given the totality of circumstances, the officer ‘had reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the petitioner had committed or was committing an offense.’ " United States v. Sowards , 690 F.3d 583, 588 (4th Cir. 2012) (alterations in original) (quoting Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ).
Etouman argues the United States must show probable cause for every element of the offense. (Docket no. 17 at 10) (citing United States v. Ramnath , 533 F. Supp. 2d 662, 679 (E.D. Tex. 2008) ; In re Ritzo , 2010 WL 1542543, at *––––, 2010 U.S. Dist. LEXIS 37543, at *16 (D.N.D. Apr. 15, 2010) ). Ramnath , however, cited no support for its holding that probable cause must support every element of the charged offense. 533 F. Supp. 2d at 679. Regardless, probable cause exists for every element of both the rape and theft charges.
Etouman also cited Bonnell v. Beach , which held in a non-extradition case that "a showing of probable cause requires some support for every element of the charged offense." 408 F. Supp. 3d 733, 739, 751 (E.D. Va. 2019).
Ritzo only cited In re Extradition of Skaftouros for its holding that probable cause must support every element of the charged offense. 2010 U.S. Dist. LEXIS 37543, at *16 (citing 643 F. Supp. 2d 535 (S.D.N.Y. 2009) ). Ritzo included no pinpoint citation within Skaftouros , and Skaftouros only held that because Skaftouros was not disputing that the treaty covered the crime charged against him the court only needed to analyze whether there was probable cause to believe he "committed the acts alleged in the extradition request." 643 F. Supp. 2d at 542.
i. The Rape Charge
Etouman argues the French statute at issue, French Penal Code article 222-23, includes three elements: 1) an act of sexual penetration; 2) on another person; and 3) committed by violence, coercion, threat, or surprise. (Docket no. 17 at 10–11). Etouman only challenges the probable cause showing for the third element, asserting he made no statements that the sexual intercourse was accomplished by violence, coercion, threat, or surprise, and that the GHB was found in a vodka bottle recovered from the victim's home and was in the victim's possession prior to the night in question. Id. at 11. Etouman asserts the sexual intercourse was consensual and there is no evidence it was accomplished by violence, threat, coercion, or surprise. Id.
Probable cause exists for the first two elements, Etouman admitted to having sexual intercourse with the victim. (Docket no. 16-2 at 37). French law interprets "surprise" in the third element to include sexual intercourse "when the victim was particularly vulnerable at the time of the facts and unable to consent ... [or] while the victim is asleep or during a state of unconsciousness ... linked to excessive consumption of alcohol, drugs or narcotic drugs." Id.
Probable cause exists for the third element as well: GHB was found in the vodka bottle and the victim and her friends had been drinking from that bottle before going to Le Saint and none of them reported feeling unwell; Etouman's brother stated that Etouman told him that the victim was asleep prior to the sexual intercourse; the victim did not remember the sexual intercourse; and the victim reported that alcohol usually did not have such a debilitating effect on her, which her friend corroborated to French police. Id. at 33-37. The victim also stated she was not romantically or sexually interested in Etouman at Le Saint and that she did not usually bring strangers home. Id. at 37. Furthermore, Etouman left a note directing plaintiff to take the morning-after pill, suggesting he believed the victim would not remember the sexual intercourse. Id. at 33. An expert also carried out a medical examination of the victim and concluded she had no personality disorders, no structural disturbance in her memory, and no pathological tendency to lie or exaggerate (mythomania). Id. at 37. Instead the expert found that the victim was intelligent, with good adaptability and acceptance of reality; her credibility was "not questionable"; and assessed the victim to have post-traumatic stress. Id. This evidence establishes probable cause that the sexual intercourse was not consensual, and that Etouman had sexual intercourse with the victim while she was unconscious due to the GHB he put in her drinks.
ii. The Theft Charge
Etouman does not specifically assert a lack of probable cause for the theft charge. (Docket no. 17 at 8–12). In his dual criminality argument, however, he does specify the elements of the French statute, French Penal Code article 311-1: 1) fraudulent theft, 2) of another's thing, 3) "facilitated by a known particular vulnerability due to ... physical or mental impairment." Id. at 5. Etouman admitted to stealing from the victim, satisfying the first two elements. (Docket no. 16-2 at 34, 37). Etouman's brother stated that Etouman told him that the sexual intercourse occurred after the victim fell asleep and that he stole things from her because he did not like her "attitude" among other things. Id. at 35. Given this timeline, and the evidence described above regarding the rape charge, probable cause exists to believe that Etouman stole the objects from the victim after she was rendered unconscious by the GHB he put in her drinks. Probable cause therefore also exists for the third element of the theft charge.
III. CONCLUSION
Based on the foregoing, the undersigned finds that the extradition of Etouman to France would be appropriate according to 18 U.S.C. § 3184 and the Treaty. As requested by the French officials in their extradition request (Docket no. 16-1 at 10–11), Etouman has been detained for extradition purposes since December 16, 2020 and that detention has been only for the purpose of extradition. See Docket no. 4. Accordingly, the undersigned hereby certifies to the Secretary of State that it is appropriate to extradite Jean Guy Guillaume Etouman to France.
The court also commits Etouman 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 Marshal shall transfer Etouman to the custody of the agents of France at a mutually agreeable time and place.