Opinion
01 Cr. 21 (GEL).
October 21, 2008
Anirudh Bansal and Jocelyn Strauber, Assistant United States Attorneys, Southern District of New York (Michael J. Garcia, United States Attorney), New York, NY, for the United States of America.
Ronald P. Fischetti and Alan S. Futerfas (of Counsel), New York, NY, for defendant.
OPINION AND ORDER
Defendant Gilberto Salinas Doria moves to dismiss an indictment charging him with conspiracy to import a controlled substance and conspiracy to distribute, and possess with intent to distribute, a controlled substance in violation of 21 U.S.C. §§ 846, 812, 841(a), 841(b)(1)(B), 963, 952(a), and 960(b)(2)(B)(ii), arguing that his extradition from Mexico to the United States violated various provisions of the governing treaty. In the alternative, defendant moves to limit his maximum potential sentence based on assurances allegedly made by the United States during the extradition process. For the reasons that follow, the motion will be denied in its entirety.
BACKGROUND
On July 17, 2003, a federal grand jury returned a two-count superseding indictment, charging Gilberto Salinas Doria ("Salinas"), a 50 year-old American citizen, with conspiracy to import a controlled substance and conspiracy to distribute, and possess with intent to distribute, a controlled substance. (D. Mem. Exs. H-I.) On March 12, 2004, pursuant to the terms of the Extradition Treaty between the United States of America and the United Mexican States, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059 ("Extradition Treaty"), the United States transmitted to the Mexican Government a request for Salinas's extradition. (D. Mem. Ex. J.)
Salinas had been previously charged in other indictments. Although the United States requested his extradition to stand trial on those charges on several occasions between 1999 and 2002, the requests were denied. (D. Mem. 5-6; Gov't Mem. 2, 4.)
The request consisted of two diplomatic notes, Note No. 500 and Note No. 501, and the affidavit of the Assistant United States Attorney. (Id. Exs. I-J.) Diplomatic Note No. 500 contained the formal request for extradition and identified both the offenses with which Salinas was charged and the factual basis for those charges. Diplomatic Note No. 501 represented that:
The maximum penalty for each of the crimes for which extradition is sought is not more than 40 years incarceration. Therefore, I would like to convey to Your Excellency that the United States Government assures the Government of Mexico that, if the fugitive is extradited to . . . the United States of America, neither a sentence of death nor of life imprisonment will be sought or imposed in this case.
(Id. Ex. J.) The accompanying affidavit reiterated the offenses charged, including their elements and respective penalties; summarized the evidence supporting the charges; reproduced the relevant portions of the statutes governing the offenses; and attached certified copies of the indictment and arrest warrant. (Id. Ex. I.)
On July 20, 2005, the Mexican Ministry of Foreign Relations ("MMFR") issued an order ("Extradition Order") concluding that the extradition request was in accordance with the requirements of the Extradition Treaty, and would be granted. (Id. Ex. K at 146.) Not only did the Extradition Order provide a detailed description of the MMFR's basis for concluding that the request complied with the terms of the Extradition Treaty, but it also addressed on the merits each of the exceptions to extradition raised by Salinas. (D. Mem. Ex. K.) In particular, the MMFR acknowledged Salinas's argument that extradition would violate the principle of non bis in idem, a concept akin to double jeopardy. (Id. at 132.) However, it rejected that argument on the ground that "the acts for which [Salinas] is requested for extradition by the government of the United States of America . . . are different from those for which he is being tried by Mexican legal authorities." (Id.) In reaching this conclusion, the MMFR emphasized that the extradition request was based on "acts committed in the United States of America," and that Salinas had failed to make any showing that the allegations underlying the extradition request were the same as those underlying his "prosecutions . . . for various crimes against health, of organized crime, and of transactions with income of illegal origin, being heard before the [Mexican courts]." (Id. at 132-33.) Having considered and rejected each of the objections raised by Salinas, the MMFR reaffirmed its decision to grant extradition and stated that "[t]he surrender of GILBERTO SALINAS DORIA . . . to the government of the United States of America will be deferred until the criminal cases that are open against him in national territory have been definitively resolved." (Id. at 146-47.)
As not all of the exceptions raised by Salinas are pertinent to the resolution of the present motion, they need not be recounted in full.
The MMFR's citation to Article 10 of the Extradition Treaty as permitting such deferral appears to be a typographical error. The provision permitting the surrendering state to defer surrender until the conclusion of any legal proceedings pending in that state is Article 15; Article 10 establishes the proper procedures and required documentation for requesting extradition.
Following issuance of the Extradition Order, Salinas brought an "amparo" action in the Mexican courts challenging the MMFR's determination that extradition was proper. (Villa Decl. ¶ 3.1.2.4.) Although Salinas initially prevailed in this action, the Mexican Attorney General's Office appealed the decision, which was reversed, leaving the Extradition Order intact. (Id.) On January 19, 2007, Salinas was surrendered to United States authorities, even though certain of his Mexican legal proceedings were apparently still pending. (Id. ¶ 3.1.3.1; Salinas Aff. ¶ 9.) Thereafter, he was transported to Houston, Texas, where he was arrested on January 20, 2007. (D. Mem. Exs. F-G; Salinas Aff. ¶ 9.)
"[T]he amparo is a highly complex legal institution" that is "somewhat similar to habeas corpus and, inter alia, is the means to review and annul unconstitutional judicial decisions." United States v. Fowlie, 24 F.3d 1059, 1064 (9th Cir. 1994).
In November 2000, Salinas was convicted of various crimes in a Mexican court. (Villa Decl. ¶ 3.1.1.3.) He subsequently appealed that decision, and in March 2001, an appellate court affirmed the conviction, but increased the sentence imposed. (Id. ¶ 3.1.1.4.) Salinas then commenced an amparo action, which led to a series of proceedings that appear to be collateral in nature. (Id. ¶¶ 3.1.1.5-3.1.1.12.) While it is unclear precisely what proceedings were pending at the time that Salinas was surrendered, for purposes of this motion, the Court assumes that there were, in fact, some proceedings pending.
DISCUSSION
I. The Motion To Dismiss the Indictment
A. Article 6
Salinas first contends that the indictment in this case should be dismissed because his extradition from Mexico to the United States violated Article 6 of the Extradition Treaty, which embodies the principle of non bis in idem and precludes the requested state from granting extradition when the person sought has already been prosecuted for the same offense for which extradition is requested. (D. Mem. 13-22.) This argument is foreclosed by longstanding precedent.
1. International Comity
It is well-established that "a foreign government's decision to extradite an individual in response to a request from the United States is not subject to review by United States courts." United States v. Medina, 985 F. Supp. 397, 401 (S.D.N.Y. 1997). InJohnson v. Browne, 205 U.S. 309, 316 (1907), the Supreme Court held that whether a crime was within the bounds of the extradition treaty between the United States and Great Britain was properly resolved by Canada, the surrendering state, and that, once made, such determination was final. See id. at 315-16. The Second Circuit has since stated that, regardless of whether the express terms of a treaty make an extraditing country's decision regarding the extraditability of an offense final, it "interpret[s] Johnson v. Browne to mean that our courts cannot second-guess another country's grant of extradition to the United States." United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002). Cf. Casey v. Dep't of State, 980 F.2d 1472, 1475-77 (D.C. Cir. 1992) (questioning whether Johnson forecloses all merits inquiries into claims that a foreign court's extradition decision violated the terms of a treaty, but acknowledging that, at a minimum, such decisions are entitled to "great deference");United States v. Van Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987) (concluding that Johnson "makes a broad statement regarding the proper deference to be accorded a surrendering country's decision on extraditability"); McGann v. United States Bd. of Parole, 488 F.2d 39, 40 (3d Cir. 1973) (holding that underJohnson, a surrendering state's decision that an offense is extraditable cannot thereafter be reviewed by a court of the United States). The deference accorded a foreign country's decision to extradite rests soundly on principles of international comity and constitutes an "essential" element of "the maintenance of cordial international relations." Campbell, 300 F.3d at 209; see also Casey, 980 F.2d at 1477. As explained by the Second Circuit, "[i]t could hardly promote 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.
Nor does any countervailing interest support review by American courts of foreign decisions granting extradition. While dismissing indictments pending in American courts might deter illegal actions by the United States government agents that violate American, local or international law, no such deterrent purpose could be served by an American court's attempt to enforce legal provisions allegedly violated by foreign authorities. As the Second Circuit held in United States v. Lira, 515 F.2d 68 (2d Cir. 1975), the American Government "can hardly be expected to monitor the conduct of representatives of each foreign government to assure that a request for extradition or expulsion is carried out in accordance with American constitutional standards. . . . [N]o purpose would be served by holding the Government responsible for the actions of [foreign government officials]."Id. at 71. The case against American judicial monitoring is even stronger where a defendant alleges not extra-legal action by foreign police agents, but mere legal error by the foreign government, after that government has fully considered the defendant's legal arguments and provided judicial review in accordance with the processes established by its laws.
Here, the United States identified the charges against Salinas and the basis for those charges in the diplomatic notes formally requesting his extradition (see D. Mem. Ex. J), and also furnished Mexico with an affidavit that reiterated the charged offenses; defined their elements; summarized the evidence of Salinas's guilt; reproduced the relevant portions of the statutes governing the offenses; and attached certified copies of the indictment and arrest warrant. (See id. Ex. I.) Armed with this information, the Mexican Government was well aware of the elements of the offenses for which Salinas would be tried in the United States. Consequently, Mexico was fully capable of making an informed decision as to whether the charges outlined in the extradition request and elaborated upon in the affidavit constituted the same offenses as those for which Salinas was convicted in Mexico. That the Mexican Government was capable of assessing whether the extradition request complied with Article 6 of the Treaty is itself sufficient to preclude review of the decision to extradite. See Medina, 985 F. Supp. at 401. Here, however, the MMFR actually decided on the merits the very non bis in idem argument that Salinas now advances in this Court. (See D. Mem. Ex. K at 132.)
Addressing the issue of non bis in idem, the MMFR concluded in its Extradition Order that "the acts for which [Salinas] is requested for extradition by the government of the United States of America . . . are different from those for which he is being tried by Mexican legal authorities," particularly given that the extradition request was based on "acts committed in the United States of America," and that Salinas had failed to make any showing that the allegations underlying the extradition request were the same as those underlying his convictions in Mexico. (Id. at 132-33.) Because reaching this conclusion necessarily required that Mexico assess the provisions of its own criminal law, this Court may not review the decision to extradite Salinas. As the court in Casey v. Department of State made clear, "a foreign court's holding as to what that country's criminal law provides should not lightly be second-guessed by an American court — if it is ever reviewable. And the foreign court's understanding of the nature of the American charge is, in truth, inextricably intertwined with its reading of its own law." Casey, 980 F.2d at 1477; see also Campbell, 300 F.3d at 209.
This conclusion accords with the text of Article 6, which, as discussed at page 12 below, directs its prohibitions to the extraditing state, not the requesting state.
While the MMFR is not a foreign court, it has been vested with the authority to grant or deny requests for extradition (see D. Mem. Ex. K. at 89-93) in the same manner that courts of other nations have been vested with such authority.
2. The Ker-Frisbie Doctrine
In addition to the deference that must be accorded to foreign decisions granting extradition, the Supreme Court has long held that illegalities in the manner in which a defendant is apprehended and brought within a court's jurisdiction neither deprive that court of its power to try the defendant nor require dismissal of the underlying charges. Ker v. Illinois, 119 U.S. 436, 440 (1886); Frisbie v. Collins, 342 U.S. 519, 522 (1952);United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992). Cf.Lira, 515 F.2d at 70; United States v. Bin Laden, 156 F. Supp. 2d 359, 366 (S.D.N.Y. 2001); Wai v. United States, No. 92 Civ. 1674, 1992 WL 167274, at * 1 (E.D.N.Y. June 1, 1992). In each of the situations in which the Court has invoked this rule, the illegalities attending the manner of a defendant's apprehension have been blatant — often involving forcible abduction — and orchestrated or undertaken principally by agents of the government seeking to prosecute him. See Alvarez-Machain, 504 U.S. at 657; Frisbie, 342 U.S. at 520; Ker, 119 U.S. at 438.
Although undertaken by a government-appointed messenger, the abduction in Ker was found to be "without any pretense of authority . . . from the government of the United States." Ker, 119 U.S. at 443.
Applying the logic of these cases, it follows that charges against a defendant in an American court should not be dismissed solely because of an alleged defect in the judicial or diplomatic processes leading to that defendant's extradition. Indeed, Salinas has not cited a single case in which an American court has deviated from the broad rule of disregarding major or minor alleged violations of extradition treaties, while the cases following it are legion.See, e.g., Campbell, 300 F.3d at 208-10; Lira, 515 F.2d at 70-72;Kasi v. Angelone, 300 F.3d 487, 493-500 (4th Cir. 2002); United States v. Chapa-Garza, 62 F.3d 118, 120-21 (5th Cir. 1995); Bin Laden, 156 F. Supp. 2d at 366-67; United States v. Herbert, 313 F. Supp. 2d 324, 330 (S.D.N.Y. 2004); Medina, 985 F. Supp. at 400-01; Ahmed v. Morton, No. 96 Civ. 0760, 1996 WL 118543, at * 4 (E.D.N.Y. Mar. 6, 1996); United States v. Yousef, 925 F. Supp. 1063, 1076-77 (S.D.N.Y. 1996); United States v. Quiceno De La Pava, No. 91 Cr. 206, 1993 WL 50943, at * 2-5 (N.D. Ill. Feb. 23, 1993); Wai, 1992 WL 167274, at * 1-2.
Salinas relies largely on cases holding that an indictment may not be dismissed where a defendant has been abducted despite the existence of treaty procedures, as if such cases compel the conclusion that dismissal is an appropriate remedy where treaty procedures have been both invoked and meticulously followed, but where defendant alleges some legal error committed by a foreign government. This argument is meritless. To the extent that the cases Salinas cites have implications for the present context, their lesson is precisely the opposite: if complete disregard for the legalities of extradition does not invalidate an indictment, alleged technical errors in a foreign extradition proceeding cannot do so. United States v. Rauscher, 119 U.S. 407 (1886), another case relied upon by Salinas and decided in the same Supreme Court term as Ker, simply applies the rule of specialty to hold that a defendant may not be tried in the United States for crimes other than those for which he was extradited. See id. at 429-30. Because Salinas does not argue, nor could he, that he is being prosecuted for crimes other than those specified in his extradition request, Rauscher is inapposite.
Although Salinas purports to quote United States v. Anderson, 472 F.3d 662, 666 (9th Cir. 2006), as stating that "theKer/Frisbie doctrine does not apply where a defendant is extradited to the United States pursuant to an extradition treaty" (D. Reply Mem. 10), his reliance on Anderson is unavailing. First, the passage Salinas cites is dictum, as the court in Anderson ultimately concluded that the defendant's extradition complied with the relevant treaty. See Anderson, 472 F.3d at 667. Second, and more importantly, Salinas blatantly misquotes the court. What the Anderson Court actually said is quite different from what defendant quotes it as saying:
Nevertheless, the Ker/Frisbie doctrine does not apply, and a court is deprived of jurisdiction over an extradited defendant, if either: (1) the transfer of the defendant violated the applicable extradition treaty, or (2) the United States government engaged in "misconduct `of the most shocking and outrageous kind'" to obtain his presence.Anderson, 472 F.3d at 666, quoting United States v. Matta-Ballesteros, 71 F.3d 754, 762-64 (9th Cir. 1995) (quotation omitted).
The distinction between defendant's version of the court's words and a proper reading of what the court actually said is crucial. Far from asserting that Ker and Frisbie have no application where a defendant has been extradited, the Anderson Court actually stated that extrajudicial abductions and other methods of procuring a defendant's presence prohibited by a relevant treaty may deprive a court of jurisdiction where such actions violate the terms of the governing treaty. See also Alvarez-Machain, 504 U.S. at 669-670.
In United States v. Matta-Ballesteros, the case on whichAnderson relies for its dictum, the defendant had been "forcibly abducted from his home in Honduras," and argued that the extradition treaties between the United States and Honduras prohibited such abductions. Matta-Ballesteros, 71 F.3d at 761-62. Rejecting this argument, the court held that the treaties did not "sufficiently specify extradition as the only way in which one country may gain custody of a foreign national for purposes of prosecution." Id. at 762. Consequently, there was no basis for either divesting the court of jurisdiction over the defendant or requiring dismissal of the underlying charges. See id. at 762-63.Anderson simply restates the dictum in Matta-Ballesteros suggesting that abduction in violation of an explicit treaty prohibition would defeat American jurisdiction. Nothing in either case purports to permit an American court to review the validity of a foreign country's interpretation of an extradition treaty, or to rule, as defendant would have it, that the Ker-Frisbie doctrine is irrelevant when a defendant has been extradited.
At least one court in this circuit has applied the Ker-Frisbie rule in the context of a challenge to the propriety of a foreign extradition proceeding. In Wai v. United States, the court relied on the Ker-Frisbie doctrine to reject a claim that the court lacked personal jurisdiction because the evidence presented during petitioner's extradition proceedings was inadmissible, inaccurate, unreliable, and insufficient. See Wai, 1992 WL 167274, at *1.
While exceptions to the Ker-Frisbie doctrine have been recognized in cases involving egregious misconduct on the part of the United States Government, Salinas does not — and could not — argue that the particular violations he alleges are of the extreme sort that would warrant such an exception. Salinas contends that his extradition violated Article 6 of the Extradition Treaty, which embodies the principle of non bis in idem and precludes the requested state from granting extradition when the person sought "has been prosecuted or has been tried and convicted or acquitted by the requested Party for the offense for which extradition is requested." Extradition Treaty, Art. 6. The language of Article 6, however, sets forth circumstances in which "[e]xtradition shall not be granted" and makes clear that its prohibitions are directed to the extraditing state, not to the courts of the requesting state. Compare id., Art. 17 (incorporating the rule of specialty, which precludes the "requesting Party" from prosecuting a defendant for an offense "other than that for which extradition has been granted"). Thus, the very treaty provision on which defendant relies fails to offer any support for the proposition that the requesting state is prohibited from prosecuting where the principle of non bis in idem applies, or that the courts of the requesting state may decide its applicability in the first instance or review the extraditing state's determination of the question.
In United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), the Second Circuit recognized the potential application of this type of exception where American agents' participation in an extra-legal abduction involving torture and other gross violations of human rights shocked the conscience. See id. at 268, 271-75, 281. That decision, however, has since been confined to its particular facts. See United States v. Reed, 639 F.2d 896, 901-02 (2d Cir. 1981) (declining to extend Toscanino to the facts of defendant's case because even assuming "that it was United States government agents who allegedly enticed [defendant] onto the airplane, and that they did so under false pretenses and with the use of a revolver and threatening language, . . . there was none of the `cruel, inhuman and outrageous treatment allegedly suffered by Toscanino'") (quotation omitted); United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir. 1975) (refusing to extend Toscanino to defendant's case on the ground thatToscanino applies only to "the most outrageous and reprehensible kind [of conduct] by United States government agents," and not merely to "any [kind of] irregularity in the circumstances of a defendant's arrival in the jurisdiction"); United States v. Noorzai, 545 F. Supp. 2d 346, 352 (S.D.N.Y. 2008) (recognizing that any "exception to the Ker-Frisbie rule is essentially limited to the extreme facts of Toscanino, or cases which demonstrate an analogous invasion of a defendant's bodily integrity and indicate government conduct of a most shocking and outrageous character").
Nor can Salinas contend that the principle of non bis in idem is so fundamental that any violation of it would shock the conscience or violate basic human rights norms. While some type of prohibition against multiple punishment for the same offense may be an internationally-recognized human right, the precise contours of the principle are technical and variable, as the complex American constitutional law of double jeopardy makes plain. The United States Constitution recognizes the prohibition against double jeopardy in principle, see U.S. Const. Amend. V, but nevertheless permits successive prosecution by different sovereigns. See Heath v. Alabama, 474 U.S. 82, 88 (1985); United States v. Sewell, 252 F.3d 647, 651 (2d Cir. 2001). Given this fact, and given that Salinas does not even argue that the crimes for which he was prosecuted in Mexico and those alleged in the instant indictment would constitute the same offense under U.S. double jeopardy law if prosecuted by the same sovereign, American law does not support any claim that prosecuting Salinas on these charges would violate his basic rights.
According to Article 14 of the International Covenant on Civil and Political Rights ("ICCPR"), for example, "[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (Dec. 16, 1966).
Even assuming the existence and applicability of such an international norm, it offers defendant no relief under the present circumstances. The mere fact that Congress has ratified the ICCPR says nothing of its force as a matter of domestic law.See Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) ("[W]hile treaties `may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be `self-executing' and is ratified on these terms.'"), quotingIgartua-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005). Because the ICCPR is not self-executing and Congress has taken no affirmative action to implement its terms, no private right of action for its violation exists. See Guaylupo-Moya v. Gonzales, 423 F.3d 121, 137 (2d Cir. 2005).
Defendant sidesteps the question whether the crimes would constitute separate offenses under Blockburger v. United States, 284 U.S. 299 (1932), the landmark decision governing similar issues under American law, by arguing that Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980), which outlines the appropriate test for identifying violations of non bis in idem for purposes of provisions like Article 6 of the Extradition Treaty, see id. at 177-79, establishes a much broader standard. (See D. Mem. 15-17.)
Accordingly, Salinas's motion to dismiss the indictment for violation of Article 6 of the Treaty is denied.
B. Article 15
Salinas also argues that because he was surrendered to the United States before his criminal proceedings in Mexico were fully resolved, his extradition violated Article 15 of the Extradition Treaty and the terms of the Extradition Order itself, thus providing further grounds for dismissing the indictment. Assuming, arguendo, that this Court is permitted to consider such a claim, the plain language of the Extradition Treaty defeats it.
Article 15 provides that "[t]he requested party, after granting the extradition, may defer the surrender of the person sought" until the conclusion of any proceedings pending against him in the extraditing country. (Emphasis added.) This language is explicitly permissive and discretionary, and confers no rights or obligations of any kind on the extraditing country, let alone on the courts of the requesting country. Even if the provision were mandatory, Salinas has not established any basis for exempting a violation of the provision from the rule that foreign decisions regarding extradition are not within the purview of American courts, nor is there any plausible argument that the provision reflects a fundamental right of a defendant sufficient to justify an exception to the well-established Ker-Frisbie doctrine. Accordingly, the motion to dismiss the indictment on this ground is also denied.
To the extent Salinas contends that his extradition violated the Extradition Order, as opposed to the Extradition Treaty itself, his argument falls even farther from the mark. As discussed above, American case law decisively rejects the notion that alleged violations of extradition treaties defeat the jurisdiction of American courts or require dismissal of U.S. indictments. It follows a fortiori that American courts may not dismiss indictments because an executive department of a foreign country allegedly violated not the governing treaty to which the United States was a party, but the decree of a different executive department of the same country approving the extradition. The United States has no conceivable interest in, nor does a defendant have standing to raise, internal separation of powers issues relating to a foreign state. As a matter of comity, not to mention lack of expertise, it would therefore be inappropriate for an American court to address such issues. This conclusion is confirmed by precedent holding that an extradited defendant may not obtain relief from criminal charges in American courts on the ground that his removal violated the internal law of the country from which he was extradited. See Lira, 515 F.2d at 71-72; Bin Laden, 156 F. Supp. 2d at 365; Yousef, 925 F. Supp. at 1076; Ahmed, 1996 WL 118543, at * 4-5. In this case, the Government relied on Mexico's interpretation and enforcement of its laws, as it was entitled to do, see Lira, 515 F.2d at 71-72, and any attempt by Salinas to argue otherwise is meritless.
This is particularly so given that the claim that Salinas is subject to ongoing prosecution in Mexico is highly technical and involves complex and somewhat confusing contentions about Mexican procedure. Salinas has been convicted and sentenced on the charges brought against him in Mexico, and his direct appeal of his conviction has been rejected. (See Villa Decl. ¶¶ 3.1.1.3-3.1.1.4.) Thus, his claim that his criminal case in Mexico has yet to be resolved depends in part on whether his various efforts to obtain relief from his conviction and sentencing constitute continuations of the case or separate legal proceedings. This Court is ill-equipped to assess the merits of such issues of Mexican law. However the proceedings are characterized, it cannot be seriously contended that extradition to face charges in another country while such matters are being contested in the extraditing country would shock the conscience or otherwise give American courts pause before applying the principles set forth in Ker, Frisbie and Alvarez-Machain.
Although Salinas contends that rejection of either of his arguments "would undermine the purpose and integrity of [the] Extradition Treaty" (D. Reply Mem. 3), this claim fundamentally misconceives the nature of extradition treaties and the procedures that they establish. When the United States invokes a valid treaty to have an individual formally extradited to stand trial in this country, it is bound by its obligations under the terms of the relevant treaty and the extradition order itself. It may not prosecute the defendant in ways that the governing treaty or the conditions accompanying surrender prohibit. See Rauscher, 119 U.S. at 429-30; United States v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007); Antwi v. United States, 349 F. Supp. 2d 663, 670-71 (S.D.N.Y. 2004). However, these obligations do not require the United States Government or an American court to re-evaluate whether the foreign government properly complied with the terms of the relevant treaty in deciding to surrender the defendant. American courts take personal jurisdiction of extradited defendants subject to the limitations of the treaty and the extradition orders of the surrendering state; however, such jurisdiction may not be defeated by a claim that the surrendering state violated the treaty by turning the defendant over to the American authorities. Given the absence of any conceivable justification for departing from the case law establishing these principles, Salinas's motion to dismiss the present indictment is denied in its entirety.
II. The Motion To Limit the Applicable Maximum Sentence
Although the maximum sentence for each of the two counts charged in the present indictment is 40 years, which under American law could be made to run consecutively, Salinas argues that the United States assured the Mexican Government that he would not be subject to more than 40 years' imprisonment and that, pursuant to the rule of specialty, he is therefore entitled to an order limiting his maximum applicable sentence to such a term. (D. Mem. 30-37.) While this argument is appropriately addressed to this Court, it is without merit.
The Government concedes that it has assured Mexico that Salinas will not face charges carrying a sentence of death or life imprisonment, as the possibility of such sentences would have caused Mexico to refuse to extradite Salinas at the time the United States sought his extradition. (Gov't Mem. 2, 33.) Moreover, a sentence in excess of 40 years for a 50 year-old defendant, imposed via consecutive sentences on overlapping substantive and conspiracy charges, is unlikely to satisfy the sentencing principles embodied in 18 U.S.C. § 3553(a), particularly given that no category of offense under the United States Sentencing Guidelines short of that applicable to the most serious homicidal offenses recommends a sentencing range with a minimum greater than 360 months. For these reasons, Salinas's argument is largely academic. Nevertheless, because a sentence of more than 40 years is theoretically available under the present indictment, the issue must be addressed.
The Second Circuit has held that a district court "should temper [its] discretion in sentencing an extradited defendant with deference to the substantive assurances made by the United States to [the] extraditing nation." United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (emphasis omitted). Accord Cuevas, 496 F.3d at 262. Contrary to Salinas's contention, however, extradition documents at issue cannot be construed as an assurance to Mexico that Salinas's sentence would be limited to 40 years. The extradition request issued by the United States included the affidavit of an Assistant United States Attorney that clearly stated that the maximum penalty " for each Count charged in the Indictment" was 40 years. (D. Mem. Ex. I ¶ 14; emphasis added.) Similarly, Diplomatic Note No. 501, which accompanied and reference Note No. 500 containing the extradition request, identified the "maximum penalty for each of the crimes for which extradition is sought" as 40 years of incarceration. (Id. Ex. J; emphasis added.)
Subsequent diplomatic notes are concededly more ambiguous. Diplomatic Note No. 272, dated April 1, 2005, confusingly references Note No. 501, stating that such Note had advised that "the maximum statutory penalty for the crimes with which GILBERTO SALINAS DORIA is charged is 40 years incarceration." (Gov't Mem. Ex. 1 at 2.) The language of Note No. 272 is doubly ambiguous. First, it could be read either as stating that the total maximum punishment for all crimes charged in the indictment is 40 years, or as stating that the maximum punishment separately applicable to each of the crimes in the indictment is 40 years. Second, although the former is arguably a more literal reading of the text, that reading is weakened by the fact that the Note purports to paraphrase Note No. 501, which unambiguously informs the Mexican authorities that the 40-year maximum is the highest penalty available for each count of the indictment. (See D. Mem. Ex. J.) Ultimately, the Extradition Order issued by the MMFR tracked the ambiguous language of Note No. 272, rather than the clearer wording of Note No. 501. (See id. Ex. K at 120.)
According to the Extradition Order, "the maximum penalty for the offenses charged in the indictment as prescribed by the United States Code is 40 years of imprisonment." (D. Mem. Ex. K. at 120.)
The case law makes clear that while "substantive assurances" made to an extraditing nation by the United States about the sentence a defendant faces, Baez, 349 F.3d at 93, or "[a]greed-upon sentencing limitations," Rodriguez Benitez v. Garcia, 495 F.3d 640, 644 (9th Cir. 2007), "are generally enforceable," id., a foreign sovereign's "unilateral belief" regarding the applicable maximum sentence "is insufficient to bind the United States." Cuevas, 496 F.3d at 263. Thus, even if the ambiguous language embodied in Note No. 272 and the Extradition Order reflects the Mexican Government's belief regarding the maximum sentence faced by Salinas, such a belief could only be characterized as a misunderstanding fostered by the imprecise language in Note No. 272, and not as either a limitation "agreed upon" by the United States or the product of an "assurance" given by the United States.
Notably, the Mexican Government has not made any representation to this Court in connection with this case. Salinas's assertion that Mexico understood the United States to be assuring it that Salinas faced a sentence no longer than 40 years rests entirely on the ambiguous language of the Diplomatic Notes and the Extradition Order.
If Mexico required such an assurance, it could have sought clarification of the ambiguity in Note No. 272, particularly in light of the unambiguous statement in Note No. 501 that Note No. 272 expressly purported to paraphrase. But there is no reason to believe that the precise length of the maximum term of years faced by Salinas was important to Mexico, or that Mexico ever sought any assurance from the United States on that subject. Mexico, like most other countries, believes that the American utilization of capital punishment is a barbarous and anachronistic practice that violates international concepts of human rights, and it refuses to extradite defendants without an assurance that the death penalty will not be imposed. (Cf. D. Mem. Ex. K at 119-21.) At the time the United States sought Salinas's extradition, Mexico took a similar position with respect to life imprisonment. (See id.; Gov't Mem. at 2 n. 3.) Consequently, both Note No. 501 and Note No. 272 took pains to assure Mexico that Salinas faced neither capital punishment nor life imprisonment.
The recitation of the maximum applicable penalty in each Diplomatic Note was in the immediate context of these assurances. In Note No. 272, the ambiguous reference to a maximum sentence of 40 years is immediately followed by the sentence, "Thus death and life imprisonment are not applicable penalties in this case." (Gov't Mem. Ex. 1 at 2.) Similarly, the ambiguous recitation of the maximum applicable sentence in the Extradition Order is specifically linked to the assurance that neither the death penalty nor a penalty of life imprisonment will be imposed:
[T]he United States of America . . . guarantees to the Mexican government that if extradition is granted, [Salinas] will not face capital punishment nor life imprisonment. . . . [Diplomatic Notes Nos. 501 and 272] provided guarantees to the Mexican government that the government of the United States of America will not seek the death penalty nor life imprisonment if the fugitive is extradited to the United States, since the maximum penalty for the offenses charged in the indictment as prescribed by the United States Code is 40 years of imprisonment.
(D. Mem. Ex. K at 120.) The clear language of the Extradition Order demonstrates that the only "guarantees" provided by the United States or demanded by Mexico were the assurances that the penalties of death and life imprisonment would not be applied to Salinas. The ambiguous reference to "40 years" was simply evidentiary of this assurance.
To the extent that Salinas suggests that because of his age, a sentence of a term of years could nonetheless be tantamount to life imprisonment, this argument also fails. In United States v. Corona-Verbera, 509 F.3d 1105 (9th Cir. 2007), the Ninth Circuit considered the claim that an eighteen-year sentence imposed on a 53 year-old defendant was tantamount to life imprisonment and therefore violated the extradition treaty between the United States and Mexico, as well as the specific agreement granting defendant's extradition. See id. at 1120-21. Rejecting this argument, the court reasoned that although the United States gave Mexico a binding assurance that it would not seek or impose a sentence of death or life imprisonment, neither the Extradition Treaty nor the diplomatic correspondences involved in the case "mention[ed] any prohibition against a sentence imposing a precise term of years." Id. at 1121. As Salinas has failed to make any showing that the facts of this case compel a different conclusion, any suggestion that a potential sentence of a term of years should be equated with life imprisonment must be rejected.
Under American law, the statutes invoked in this indictment clearly authorize consecutive sentences of 40 years on each count. While that authorization may be limited by "assurances" made to foreign governments during the extradition process, a court should not lightly assume that such promises have been made, or bind itself to renounce penalties authorized by law where the United States Government has not in fact made them. Unlikely as it may be that Salinas would receive a sentence in excess of 40 years, the United States has made no promise or guarantee to Mexico that the maximum sentence authorized by law will not be imposed if Salinas is convicted of both counts charged in the indictment.
Although the terms of the Government's assurances to Mexico do not obligate this Court to limit the potential maximum sentence to 40 years, it is difficult to understand why the Government would not want to obviate any future issues in this case by agreeing to such a limitation. As stated above, it appears unlikely that a sentence in excess of 40 years would serve any legitimate sentencing goal. But should Salinas ultimately be convicted, whether by plea or verdict, he could easily launch an appellate or collateral attack on the conviction on the theory that his incentives to accept or reject any guilty plea option were distorted by what he maintains is incorrect advice about the maximum available sentence, and there is no guarantee that an appellate court would agree with this Court's analysis of the poorly-drafted and ambiguous diplomatic notes. The Government would therefore be well advised to reconsider whether its insistence on its theoretical position offers any benefit worth even a slight risk of disturbing the finality of any conviction it might obtain in this case.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the indictment based on alleged violations of the Extradition Treaty, or to limit the applicable maximum sentence based on assurances allegedly made by the United States to Mexico, is denied in its entirety.SO ORDERED.