Orlando Criminal Defense attorney John Guidry, II defends the criminally accused since 1993.

How to Preserve Error at Trial — PART 2

Part 2 (previously published Part 1 is below)

How to Preserve Error at Trial – An Appellate Lawyer’s Viewpoint — PART 2


Patrick Megaro, Esquire


Sometimes in life, you have to speak up.  Yes, that’s what you pay an attorney for.  But no, it doesn’t always work the way it should.  And unfortunately, if your attorney doesn’t object when he/she should have–this will create all sorts of problems later.

The good news is, we have appellate attorneys like Patrick Megaro.  He solves the problems created by all the things that go wrong during a criminal trial.  And yes, lots can go wrong.


Enjoy Part 2 of Patrick Megaro’s warning to we defense attorneys, he’s going to remind us how to keep a criminal jury trial clean enough to reverse the conviction on appeal–should things come to that.   I published Part 1 of his article a few weeks ago, it deals with pretrial motion issues and voir dire.


Look, I know that you attorneys out there think you know everything–but you don’t.  Quit being so cocky.  You can’t learn anything if you think you know everything.


Read this.


Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts.  A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice.  As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions.  He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.


Opening Arguments and Summation


To preserve for appellate review an issue relating to an alleged improper comment, a party must object to the comment when it is made and obtain a ruling on the objection.  If a party objects to the comment, but fails to secure a ruling from the trial judge, the issue is waived unless the judge deliberately and patently refuses to rule on the objection.


If the trial judge sustains the objection, the objecting party must make a timely request for a curative instruction or a motion for mistrial to preserve the issue for appellate review. The motion for mistrial must be made before the jury retires to deliberate.


Motion for a Judgment of Acquittal


“The defense moves for a judgment of acquittal because the State has failed to make a prima facie case” is INSUFFICIENT to preserve a sufficiency issue for appeal.


Consider the following:


That said, when a motion for judgment of acquittal is well taken, I have never understood why an attorney’s failure to make a sufficient motion for judgment of acquittal is not ineffective assistance on the face of the record. Even a marginally prepared attorney should know the elements of the offense for which a client is on trial. That marginally prepared lawyer ought to be expected to listen to the evidence closely enough to know whether the State failed to prove an essential element of the offense. There rarely, if ever, is a tactical reason for a lawyer not to move for a judgment of acquittal when the client is entitled to be acquitted. Stoddard v. State, 185 So.3d 696, 697 (Fla. 2d DCA 2016 )(Altenbrand, concurring)


A motion for a judgment of acquittal has to be made at the close of the State’s evidence, and AGAIN at the close of ALL evidence, even if the defense does not put on a case, in order to properly preserve the issue.


Of course, you should identify the specific elements which are lacking evidence, and be prepared with caselaw and to argue the trial record why the evidence was insufficient.


Jury Instructions


Jury instructions typically are discussed with the court prior to the court’s final instruction to the jury at a charge conference.  This is the defendant’s opportunity to propose instructions, make objections to instructions, and request specific instructions to address issues that pertain to the trial.


However, the objection MUST BE MADE AGAIN after the court delivers the instruction to the jury and BEFORE the jury retires to deliberate.  When the court reads the instructions to the jury, request a sidebar ON THE RECORD and repeat the objections made earlier.  If you do not, the issue is waived for appeal.


Sentencing


In order to preserve a sentencing argument, the objection must be made BEFORE and AFTER sentence is imposed.  We have learned the hard way that relying on a judge who says “your exception is noted” is insufficient to preserve a sentencing error.  Whatever objections to make to the Pre-Sentence Report, the Sentencing Scoresheet, or anything else must also be made AGAIN after the court formally pronounces sentence or else it is waived.


DO NOT RELY ON FUNDAMENTAL ERROR


We have all tried cases that we knew would be extremely difficult, if not impossible, to win.  It is easy to look at a seemingly hopeless situation and forget to properly preserve issues for appeal.  However, I can tell you that I have had more than my fair share of cases that were “dead losers” at trial but came back on appeal because the court or the prosecutor thought that because there was overwhelming evidence of guilt, they could be free to take shortcuts.  In those cases, the preservation of error for appellate review was the trial attorney’s greatest accomplishment.


Without proper preservation, appellate lawyers have to argue fundamental error, which is almost impossible.  Florida courts and Federal courts rarely, if ever, reverse on fundamental error.  This is why proper preservation is extremely important.


For the close case, appellate courts are more likely to reverse if an issue was properly preserved.


For the cases that felt like trial was a “suicide run,” this is all the hope the client has.


For more practice tips visit Halscott Megaro at

https://www.appealslawgroup.com/blog/

or find us on Facebook at

https://www.facebook.com/appealslawgroup/

https://www.facebook.com/NewYorkWeeklyRoundup/

https://www.facebook.com/New-Jersey-Weekly-Roundup-Criminal-Appeals-808602875931084/

https://www.facebook.com/halscottassociates/

Learn More

Orlando Criminal Defense attorney John Guidry, II has served the community by defending the criminally accused since 1993. Among his numerous awards and accolades are “Top 100 Trial Lawyers” and “Best Criminal Defense Lawyer in Orlando” (2016). To provide information to the public, Mr. Guidry maintains a Blog with matters of crucial importance in the area of criminal defense, questions such as “Must an Alleged Victim Show Up in Court?” and “Can I Be Convicted If There’s No Evidence?

Mr. Guidry is now publishing a series of two guest blog articles on his Blog. The second of the articles is “How to Preserve Error at Trial – An Appellate Lawyer’s Viewpoint — PART 2”, written by fellow Criminal Defense Attorney Patrick Megaro.

Orlando Criminal Defense attorney John Guidry, II maintains a blog on criminal law.

Articles on Criminal Law

Feature Article

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts.  A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice.  As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions.  He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.


“This issue before us was not properly preserved for appellate review and is therefore not now cognizable.  Affirmed.”


We appellate lawyers cringe when we see these words written, especially in our own case decisions.  This means that no matter how brilliant the trial attorney was, they did not make a specific, timely objection at the trial level, which has effectively waived their client’s right to appeal that issue.


First, let us start with something we have all (should have) learned in law school:  general, non-specific objections are insufficient to preserve an issue for appeal.


While we all know this, but MANY times we see trial lawyers simple say “objection” or “We object to ____” without going further.

“Preservation of error principles require parties to be specific with their objections so as to inform the trial court of the perceived error.”  State v. Garza, 118 So.3d 856 (Fla. 5th DCA 2013).

This means you have to spell out WHY you object – be it in a motion, a post-hearing memorandum of law, a written notice of objection, or an argument on the record at the appropriate time why something is legally erroneous.  The objection must be SPECIFIC.

Second, the objection must be TIMELY and CONTEMPORANEOUS.  This means that you have to immediately object when something is coming into evidence – sometimes before and after.

The law requires certain objections to made at certain times in order to properly preserve them.  Here are some practice tips for the most common issues that arise during the course of a trial:

Suppression Issues

If you move to suppress evidence prior to trial, make sure you make another objection at the time the evidence is introduced in order to preserve the objection.  You can make the objection at the time of introduction by incorporating your prior arguments, and by making any new arguments that came up during the trial (such as authenticity, foundation, etc).

Motions In Limine/Evidentiary Issues

The issues regarding introduction of evidence should be made before introduction of the evidence, and MUST be made again at the time the evidence is offered.  If the prosecutor files a motion in limine, make sure you either file a response objecting to the evidence, or place your reasons on the record and incorporate those reasons at the time the evidence is introduced.

If the issue concerns introduction of evidence, make sure you do a full voir dire and place the specific reasons on the record why the evidence fails to meet foundational requirements, is otherwise inadmissible, and why it is prejudicial to you.  The point is to create a record.

Voir Dire/Jury Selection Issues

If you object to a prosecutor’s voir dire, you must make an objection at the time of the offending voir dire, and AGAIN prior to the jury being sworn.  See Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) (holding that to preserve a contemporaneous objection to voir dire, a defendant must renew the objection prior to the jury being sworn or accept the jury subject to the specific prior objection in order to “apprise[ ] the trial judge that [the defendant] still believed reversible error had occurred”); Barnette v. State, 768 So.2d 1246, 1247 (Fla. 5th DCA 2000) (“[T]he appellant did not properly preserve this issue for appellate review because he failed to renew his objection and motion for mistrial before the jury was sworn.”)

If you move to strike a juror for cause and the challenge is denied, you must :

(1) Exhaust all remaining peremptory challenges;

(2) request additional peremptory challenges that are denied;

(3) identify specific jurors whom the party would have excused if possible, but who ultimately served on the panel;

(4) renew the objection BEFORE the entire jury is sworn, or else the appellate court will presume the objection abandoned

The specific basis for challenging EACH juror in question must be raised during voir dire; if not, it is not preserved for appeal.

All criminal defense attorneys should be familiar with the three-step Batson procedure.

  1. You must make a prima facie showing that the prosecutor’s peremptory challenge was based on race or another impermissible ground and demand a race-neutral explanation for the strike. You must define the excluded group and the excluded individuals at the time peremptories are challenged. It is better if you can make the targeted group as broad as possible (blacks, hispanics etc.) If you are stuck with having to combine, combine at the broadest level you can (black women, hispanic men).

If you do not make a sufficiently detailed objection based upon the numbers and qualities or qualifications of the juror or jurors at issue, your application will be denied without the prosecutor having to say anything.

YOU MUST ALSO DEMAND A RACE-NEUTRAL REASON.  Yes, I said it twice.

  1. If the court determines that a prima facie case was shown, the burden of production shifts, and the prosecutor must give a facially neutral reason for each challenge.
  2. If the court determines that a facially race neutral reason was provided, then the defense must demonstrate that the proffered reason is pretextual, typically by arguing any one or more of five factors:

(a) alleged group bias not shown to be shared by the juror in question,

(b) failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror,

(c) singling the juror out for special questioning designed to evoke a certain response,

(d) the prosecutor’s reason is unrelated to the facts of the case, and

(e) a challenge based on reasons equally applicable to other jurors who were not challenged. (This is the big one)

  1. In order to preserve the objection, you must AGAIN make the objection BEFORE the jury is sworn, specifically challenging the factual assertions on which the race-neutral reasons are based.

PART II to follow

For more practice tips visit Halscott Megaro at

https://www.appealslawgroup.com/blog/

or find us on Facebook at

https://www.facebook.com/appealslawgroup/

https://www.facebook.com/NewYorkWeeklyRoundup/

https://www.facebook.com/New-Jersey-Weekly-Roundup-Criminal-Appeals-808602875931084/

https://www.facebook.com/halscottassociates/

Learn More

Orlando Criminal Defense attorney John Guidry, II has served the community by defending the criminally accused since 1993. Among his numerous awards and accolades are “Top 100 Trial Lawyers” and “Best Criminal Defense Lawyer in Orlando” (2016). To provide information to the public, Mr. Guidry maintains a Blog with matters of crucial importance in the area of criminal defense, questions such as “Must an Alleged Victim Show Up in Court?” and “Can I Be Convicted If There’s No Evidence?


Mr. Guidry is now publishing a series of two guest blog articles on his Blog. The first of the articles is “How to Preserve Error At Trial in Florida: An Appellate Lawyer’s Practice Tips (PART 1)”, written by fellow Criminal Defense Attorney Patrick Megaro. In the first article, just published on the Blog, Mr. Megaro addresses the problem when an error at trial is not properly preserved for appeal. In legalese, that is something like “This issue before us was not properly preserved for appellate review and is therefore not now cognizable.  Affirmed.”  

Articles on Criminal Law

German High Court rules that cutting off life support for a terminal patient ...

The Defendant in this case is a lawyer specializing in health law. The Patient is Ms. K, born in 1931 and in a persistent coma since 2002. Ms. K made oral statements shortly before she fell into the coma that she did not wish any life‑extending measures and that she did “not want to be connected to any tubes.” A dispute broke out between Ms. K’s children and the Nursing Home where Ms. K was staying. Eventually, the parties agreed in 2007 that the Nursing Home would provide only palliative care and the children could terminate Mrs. K’s artificial nutrition. The Nursing Home administration later prevented the termination of artificial nutrition.


The Defendant advised the children of Ms. K to simply cut the tube that provides the nutrition. The children did so, but were discovered within minutes. Police were called in, and Ms. K was taken to a hospital where she died two weeks later from her multiple diseases. 

The district court in Fulda, Germany, convicted the Defendant of attempted manslaughter and sentenced him to nine months imprisonment. This appeal ensued.


Germany’s highest court, the Bundesgerichtshof (BGH), reverses. 

The Court summarizes its holdings as follows: (1) assisted suicide through withholding, limitation or termination of medical treatment is justified if this complies with the actual or presumed intent of the patient (Section 1901a BGB), and allows a terminal medical condition to take its course; (2) a termination of medical treatment can occur not only through withholding of treatment but also by affirmative acts; (3) specific acts that affect human life, which are not related to the termination of medical treatment, cannot be justified with the Patient’s consent.


The Court notes that this case arose before the federal law on “living wills” (advance health care directives) became effective in September 2009 (Patientenverfuegungsgesetz, Gesetz vom 29.07.2009, BGBl. I. S. 2286). The oral consent given by the Patient in September 2002, which has been corroborated, was binding both under the law at the time of the events and under the new federal law on living wills. The district court erred by holding that the Defendant had committed attempted manslaughter by actively preventing the continued artificial nutrition of the Patient. The Patient’s consent justifies not only the termination of life‑supporting measures, but also affirmative acts that terminate unwanted medical treatments.

Citation: [German] Bundesgerichtshof (BGH), Urteil vom 25. Juni 2010 ‑ 2 StR 454/09. The decision is available through the Court’s website http://www.bundesgerichtshof.de.

Where Korean citizen was prosecuted for bribery in Korean court and later in U.S. federal court ...

Beginning in 2001, Gi‑Hwan Jeong, a citizen of South Korea, was successfully bribing two U.S. officials to obtain a $206 million contract relating to the U.S. Army and Air Force Exchange Service (AAFES) for his company, Samsung Rental Company, Ltd. (SRT). Under the contract, SRT would provide internet and other telecommunication services to U.S. military installations in South Korea.


Jeong came under investigation by U.S. and South Korean investigators. AAFES terminated the contract with SRT in 2007, and in 2008 a South Korean court convicted Jeong of bribing U.S. officials. The court sentenced him to time served (58 days) as well as to pay a fine of about $10,000.

That, however, was far from ending the U.S. investigation. The U.S. requested assistance pursuant to the Treaty Between the United States of America and the Republic of Korea on Mutual Legal Assistance in Criminal Matters, U.S.‑South Korea, November 23, 1993, S. Treaty Doc. No. 104‑1 (1995) [in force May 23, 1997]. The request acknowledged Jeong’s conviction and stated that the U.S. was not seeking to prosecute. 

AAFES then invited Jeong to a meeting in Dallas, Texas, for a discussion. Jeong did in fact travel to the U.S. where the U.S. arrested him upon arrival. A Grand Jury then indicted Jeong for federal bribery under 18 U.S.C. 201(b)(1), conspiracy under 18 U.S.C. 371, and wire fraud under 18 U.S.C. 1343 and 1346.

Jeong moved to dismiss the indictment claiming that the U.S. lacked jurisdiction to prosecute him. In particular, he argued [1] that the federal bribery statute does not apply extraterritorially; [2] that the prosecution violates the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (December 17, 1997, S. Treaty Doc. No. 105‑433 (1998)) [in force February 15, 1999] (Convention) of the Organization for Economic Cooperation and Development (OECD); and [3] that Article 4.3 of the Convention bars multiple prosecutions for the same offense. Both the U.S. and South Korea are signatories to the Convention.

The Korean Ministry of Justice submitted a statement to the district court supporting Jeong’s motion to dismiss. It contended that the U.S. had not timely asserted jurisdiction to prosecute Jeong, as confirmed in the U.S. request under the Mutual Assistance Treaty; thus, the U.S. had effectively waived that right. The district court denied the motion [1] because federal bribery laws do in fact apply extraterritorially and [2] because the Convention does not bar multiple prosecutions. Jeong pleaded guilty but exercised his right to appeal the denial of his motion to dismiss. The U.S. Court of Appeals for the Fifth Circuit, however, affirms Jeong’s American conviction.

According to Jeong, the Convention bars a signatory party from prosecuting a foreign national whose alleged offenses had occurred abroad. Article 4.3 of the Convention provides that, when more than one jurisdiction can prosecute, the governments involved should—at the request of one of them—consult to determine the most appropriate jurisdiction for prosecution. 

  

The Court of Appeals, however, disagrees. “We apply the traditional canons of interpretation to Article 4.3. ‘The interpretation of a treaty, like the interpretation of a statute, begins with its text.’... We must interpret the text ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ ... Only if the language of a treaty, when read in the context of its structure and purpose, is ambiguous may we ‘resort to extraneous information like [1] the history of the treaty, [2] the content of negotiations concerning the treaty, and [3] the practical construction adopted by the contracting parties.’ ... Finally, [4] we may not ‘alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial,’ for to do so ‘would be ... an usurpation of power, and not an exercise of judicial function.’ ...”

“Applying these canons, we conclude that the plain language of Article 4.3 does not prohibit two signatory countries from prosecuting the same offense. Rather, the provision merely establishes when two signatories must consult on jurisdiction. Article 4.3 states that two signatories with concurrent jurisdiction over a relevant offense must, ‘at the request of one of them,’ consult on jurisdiction.” 

“The phrase ‘at the request of one of them’ is a dependent clause that conditions the consultation requirement upon the existence of a request. Where no such request is made, then, the ordinary reading of Article 4.3 is that consultation is not required. Jeong is, therefore, incorrect that the provision requires consultation in every instance of concurrent jurisdiction. In the case at hand, the record shows that neither the U.S. nor South Korea requested consultation on their concurrent jurisdiction to prosecute Jeong. That they did not consult on jurisdiction, therefore, does not violate Article 4.3.”

“Even if the U.S. and South Korea had been required to consult on jurisdiction, however, it would not follow that only one of the two nations could prosecute Jeong. Article 4.3 requires that consultation be made ‘with a view to determining the most appropriate jurisdiction for prosecution.’ Jeong argues that because the provision uses the singular, not plural, form of ‘jurisdiction,’ prosecution of an offense may be had in only one jurisdiction.” 

“But this reading impermissibly engrafts additional requirements on the clause, and we may not ‘alter, amend, or add to’ the plain language of a treaty. ... The plain language of the clause provides that where consultation is required, the parties need only consult ‘with a view to determin[e]’_the jurisdictional question ‑‑ they need not actually answer it. And, most significantly, the provision requires nothing more than consultation upon request; it does not require any additional actions of the party countries.” [711‑712].

Alternatively, Jeong argues that the U.S. expressly and impliedly waived jurisdiction, and, therefore. the indictment is invalid. Again, the Court disagrees. “Implicit in Jeong’s argument is a presumption that although the U.S. and South Korea both had the right to prosecute him for his offenses, only one of the two countries was permitted to exercise that right. Operating under this [alleged] presumption, Jeong argues that the U.S. impliedly and expressly ceded its right of prosecution to South Korea.”

“In an omission fatal to his argument, however, Jeong fails to identify any source of domestic or international law that permits such a presumption. At the outset, we note that it is doubtful whether Jeong has recourse in domestic law. For instance, we have held that the Double Jeopardy Clause of the Fifth Amendment ‘only bars successive prosecutions by the same sovereign.’ U.S. v. Villanueva, 408 F.3d 193, 201 (5th Cir.2005); see also U.S. v. Martin, 574 F.2d 1359, 1360 (5th Cir.1978) (‘The Constitution of the U.S. has not adopted the doctrine of international double jeopardy.’) ... Double jeopardy thus does not attach when separate sovereigns prosecute the same offense, as here.”

“In addition, Jeong has not pointed us to any applicable international law that limits the U. S’s jurisdiction over the offenses in this case ‑‑ nor have we found any in our own research. There are three accepted sources of international law in the U.S.: [1] customary international law, [2] international agreement, and ]3] ‘general principles common to the major legal systems of the world.’ Restatement (Third) of Foreign Relations Law of the United States § 102(1) (1987) (hereinafter Restatement). ... The ‘exercise of jurisdiction by courts of one state that affects interests of other states is now generally considered as coming within the domain of customary international law and international agreement.’ Restatement ch. 2, intro. note.” 

“Jeong, however, has not cited any relevant international agreement or custom applicable here. Because Jeong has not identified ‑‑ nor does the record show ‑‑ a legal agreement between the U.S. and South Korea that would permit a conclusion of jurisdictional waiver in this case, we simply lack a basis in which to evaluate Jeong’s waiver claims. ...We must therefore conclude that Jeong’s waiver claim fails.” [712‑713].

Citation: United States v. Jeong, 624 F.3d 706 (5th Cir. 2010).

A seven judge panel of the European Court of Human Rights rules ...

On October 24, 2006, a grand jury in Washington County, Maryland, U.S.A. indicted a Mr. Edwards (Applicant) on 11 counts, relating to the death of one J. Rodriguez, the non‑fatal shooting of T. Perry, and assault of a third man, S. Broadhead. The most serious charges are [1] murder in the first degree of Rodriguez; and [2] attempted murder in the second degree of Perry. The 3rd and 4th counts are alternatives to counts 1 and 2, charging the applicant with murder in the second degree of Rodriguez and attempted murder in the second degree of Perry.

Applicant, Rodriguez, Perry and Broadhead were visiting the apartment of a friend on the evening of July 23, 2006. Applicant began to argue with Rodriguez and Perry who had made fun of his small stature and feminine appearance. Applicant left the apartment and later returned with 3 other men. Broadhead told the police that, while the other men in the kitchen were restraining him, Applicant produced a handgun and went into the living room. Shots were then fired killing Rodriguez and injuring Perry with a non‑fatal gunshot wound to his head. Somehow Applicant fled the U.S. and ended up in the United Kingdom. 

On January 21, 2007, U.K. authorities arrested Applicant pursuant to a provisional warrant of arrest issued under section 73 of the Extradition Act 2003. In an affidavit of March 14, 2007, Mr. Joseph S. Michael, an attorney in the Office of the State’s Attorney for Washington County, Maryland, outlined the facts of this case and the state charges against the Applicant. As to count I, he stated: “Although a defendant convicted of first degree murder may, under certain circumstances, be subject to the death penalty, none of those circumstances exist in this case. Consequently, the maximum penalty is life in prison.”

The U.S. Embassy in London issued Diplomatic Note 12 in March 2007. It asked for Applicant’s extradition to the U.S. for trial. The Note specified that both Counts one and two carried a maximum penalty of life imprisonment, and that count two, attempted first‑degree murder, also carried a maximum penalty of life imprisonment. 

Later that month, the Secretary of State certified that the extradition request was valid. In a decision given on April 16, 2007, the district judge, sitting at the City of Westminster Magistrates’ Court, ruled that the extradition could proceed. He held that, inter alia, Applicant’s extradition would not be incompatible with his rights under Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 312 U.N.T.S. 221 as amended [ECPHR]. [It provides: “Article 3. Prohibition of Torture. No one shall be subjected to torture or to inhuman or degrading treatment.”]

   

The Maryland Criminal Code stated that it was up to the State of Maryland to seek the death penalty. The extradition request clearly declared that it would not do so. The District Judge accordingly sent the case to the U.K. Secretary of State for his decision as to whether the U.K. should extradite the Applicant to Maryland. 

On June 5, 2007, the U.S. Embassy issued a further diplomatic note on Applicant’s case. It assured the U.K. Government that Applicant was not subject to the death penalty, that Maryland would not seek or carry out the death penalty upon his extradition to the United States, and that the Deputy State Attorney of the State of Maryland has assured the U.S. Federal Government of this decision.

Three weeks later, the U.K. Secretary of State ordered Applicant’s extradition. Applicant appealed to the High Court, inter alia, on the ground that a sentence of life imprisonment without the possibility of parole amounted to “inhuman or degrading treatment” in violation of ECPHR Article 3. 

On July 26, 2007, in a second affidavit in support of the extradition, Mr. Michael provided further details of the potential sentences for first‑degree murder under Maryland law. He stated: “5.This particular case qualifies for a maximum penalty of life imprisonment under Maryland Ann. Criminal Law § 2‑201(b). The Death Penalty does not apply.”

Given the heinous nature of the instant case, which the State characterizes as a[n] ‘execution style’ homicide, which claimed one life, and seriously and permanently injured a second victim, the State anticipates that it will ask the Court to impose a life sentence without the possibility of parole under Maryland Criminal Law §2‑203 and §2‑304(a)(1).

In the present case, in the event that the State did in fact file its notice of intention to seek life without parole, the trial judge would be the sole sentencing authority. State law grants the judge the discretion to impose one of the following 3 types of sentence: [1] life without the possibility of parole; [2] life with the possibility of parole; or [3] life with the possibility of parole, with all but a certain number of years suspended, followed by up to 5 years of probation.

In Mr. Michael’s experience, “there is no way to accurately predict what sentence a defendant will face if convicted of first‑degree murder.” Mr. Michael added that a person convicted of first‑degree murder was entitled to a pre‑sentencing investigation. This involves a background report from the Department of Parole and Probation on the Defendant and includes information received from the surviving victims. 

Convicted defendants also have the right to apply for review of the sentencing by the sentencing judge and thereafter for review by 3 other circuit judges. Mr. Michael also stated he was unprepared to offer an opinion on any mitigating factors which might affect Applicant’s sentence if a court convicts him of first‑degree murder. 

   

Mr. Michael continued: “In general terms, the Washington County Circuit Court [the county where Applicant would be tried] has considered as mitigating factors several known attributes possessed by Applicant: youth and lack of serious criminal history. The single biggest mitigating factor in regard to whether a defendant receives life without parole would be an acceptance of responsibility upon the part of a given defendant.”

Before the U.K. High Court, Applicant accepted that the House of Lords’ ruling in Regina v. Lichniak [25 November 2002] [202 UKHL 47] precludes an appeal based on Article 3 of the ECPHR and conceded that it had to be dismissed. On July 27, 2007, the High Court therefore dismissed Applicant’s appeal on this ground, allowing only his appeal that count 10 of the indictment was not an extraditable offence. The Court also refused to certify to the House of Lords a point of law of general public importance. 

On August 1, 2007, this Applicant lodged an application with the European Court of Human Rights (ECHR) and requested an interim measure to stay his extradition. On August 3, 2007 the President of the assigned Chamber decided to *574 apply Rule 39 of the Rules of Court. It therefore indicated to the Government of the United Kingdom that it should not extradite the Applicant until further notice. The ECHR then relates the various extradition arrangements between the United Kingdom and the United States. [Another Applicant named Harvey was considered along with Mr. Edwards but is not covered herein.]

33. A seven‑ judge panel of the ECHR explains its rulings and their bases. “For [Mr. Edwards], the applicable bilateral treaty on extradition was the 1972 UK–USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 Treaty provided that extradition could be refused unless the requesting party gave assurances satisfactory to the requested party that the death penalty would not be carried out. II. For relevant U.K. law on article 3 and extradition: see Regina (on the application of Wellington) v. Secretary of State for the Home Department, [2008] UKHL 72; [2009] 1 A.C. 335.

34. “[In that case] [t]he United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on 3 counts of murder in the first degree. In his appeal against extradition, Mr. Wellington argued that his surrender would violate art. 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.” 

35. “In giving judgment in the High Court,[7] Laws L.J. found that there were ‘powerful arguments of penal philosophy’ which suggested that risk of a whole‑life sentence without parole intrinsically violated Article 3 of the Convention. He observed: ‘The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self‑defence or just war; but retributive punishment is never enough to justify it.” 

   

“Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence, the whole‑life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment, for the whole‑life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for.” 

“But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip‑service to the value of life; not to vouchsafe it. However, and ‘not without misgivings’, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.” 

36. “Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on December 10, 2008. Central to the appeal was at [89] of this Court’s judgment in Soering v. United Kingdom, (A/161) (1989) 11 E.H.R.R. 439; Times, July 8, 1989. There the Court stated that considerations in favour of extradition: ‘[m]ust also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.’”

37. “A majority of their Lordships,[Lord Hoffmann, Baroness Hale and Lord Carswell,] found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill‑treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. Insofar as Article 3 applied to inhuman and degrading treatment and not to torture, however, it was applicable only in a relativist form to extradition cases.” 

38. “Lord Hoffmann, giving the lead speech, considered the Court’s judgment in the case of Chahal v. United Kingdom, (22414/93) (1997) 23 E.H.R.R. 413; 1 B.H.R.C. 405; Times, November 28, 1996; in which the Court stated that: ‘It should not be inferred from the Court’s remarks [in] Soering that there is any room for balancing the risk of ill‑treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 is engaged.’ Lord Hoffmann stated: ‘In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture.” 

“I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.” 

“For Lord Hoffmann, in Soering made clear that: ‘[T]he desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.’” 

   

“He went on to state: ‘A relativist approach to the scope of Article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers, 2005 1 S.C. 229; 2004 S.L.T. 555; 2004 S.C.L.R. 558; [2004] U.K.H.R.R. 881; [2005] (2005) S.C. 229, that, in Scotland, the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of Article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If it were applied in the context of extradition, however, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.”

39. “A minority of their Lordships [Lord Scott and Lord Brown,] disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy (37201/06) (2009) 49 E.H.R.R. 30; 24 B.H.R.C. 123; [2008] Imm. A.R. 519; [2008] I.N.L.R. 621; [2008] Crim. L.R. 898; ECHR (Grand Chamber) had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering.” 

He explained “There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading.” 

“That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries [(see para 27 of Lord Hoffmann’s opinion)] ¼ the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ (Soering, para 86) and Article 3 does not bar removal to non‑Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment.” 

“Nor is it to say that a risk of Article 3 ill‑treatment, the necessary pre‑condition of an Article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142: ‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill‑treatment ¼ in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof ¼ before ¼ finding *577 that the enforcement of removal from the territory would be contrary to Article 3 of the Convention.” 

   

“As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’” Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.” 

40. “Despite these different views, however, none of the Law Lords found that the sentence likely to be imposed on Mr. Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus, (21906/04) (2009); 49 E.H.R.R. 35; 25 B.H.R.C. 591; [2010] 1 Prison L.R. 1; ECHR (Grand Chamber).”

“All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not per se constitute inhuman and degrading treatment in violation of Article 3, unless it were grossly or clearly disproportionate.” 

“Lord Brown in particular noted: ‘Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber in Kafkaris would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating Article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that Article 3 may be engaged.’ 

“Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. Lord Brown, however, considered that, in a more compelling case, such as the mercy killing of a terminally‑ill relative, this Court: ‘[M]ight well judge the risk of ill‑treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on Article 3 grounds.”

41. “Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Laws L.J.’s view that life imprisonment without parole was lex talionis. Lord Hoffmann, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence.” 

42. “Wellington’s application to this Court was struck out on October 5, 2010, the Applicant having indicated his wish to withdraw it. “ *578 

* * * *

  

141. “Applicant [Edwards] faces, at most, a discretionary sentence of life imprisonment without parole. Given that this sentence will only be imposed after consideration by the trial judge of all relevant aggravating and mitigating factors, and that it could only be imposed after the applicant’s conviction for a premeditated murder in which one other man was shot in the head and injured, the Court is unable to find that the sentence would be grossly disproportionate.”

142. “Moreover, for the reasons it has given in respect of the first applicant, the Court considers that Applicant (Edwards) has not shown that incarceration in the United States would not serve any legitimate penological purpose, still less that, should that moment arrive, the Governor of Maryland would refuse to avail himself of the mechanisms which are available to him to reduce a sentence of life imprisonment without parole. ¼Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the Article 3 threshold as a result of his sentence if he were extradited to the United States. The Court therefore finds that there would be no violation of Article 3 in his case in the event of his extradition.

Alleged violation of Article 5 of the Convention

143. The Court then considers the Applicant’s claim that there would be a violation of Article 5 of the Convention. “Applicant Edwards [also] submitted that, if the Court did not examine his complaint relating to his sentence under Article 3, then, alternatively, that issue could be examined under Article 5 which guarantees the right to liberty and security. In particular, Article 5(1)(a) and (4) provide: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ¼4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’”

144. “This Court considers that, even assuming that this submission is intended to raise a separate issue from the complaint made under Article 3, it has been determined by its recent admissibility decision in Kafkaris v. Cyprus (No.2). [120] That application was introduced by Mr. Kafkaris following the Grand Chamber’s judgment in his case. He complained, inter alia, that, under Article 5(4), he was entitled to a further review of his detention, arguing that his original conviction by the Limassol Assize Court was not sufficient for the purposes of that provision.” 

“He submitted that he had already served the punitive period of his sentence and, relying on Stafford v. United Kingdom, (46295/99) (2002) 35 E.H.R.R. 32; 13 B.H.R.C. 260; [2002] Po. L.R. 181; [2002] Crim. L.R Stafford. 828; (2002) 152 N.L.J. 880; Times, May 31, 2002. ECHR argued that new issues affecting the lawfulness of his detention had arisen. These included the Grand Chamber’s finding of a violation of Article 7, the Attorney General’s subsequent refusal to recommend a presidential pardon and the fact that, in habeas corpus proceedings, the Supreme Court had failed to consider factors such as his degree of dangerousness and rehabilitation.”

145. “The Court rejected that complaint as manifestly ill‑founded. The Court found that the Assize Court had made it quite plain that the applicant had been sentenced to life imprisonment for the remainder of his life. It was clear, therefore, that the determination of the need for the sentence imposed on the applicant did not depend on any elements that were likely to change in time. [122] The ‘new issues’ relied upon by the applicant could not be regarded as elements which rendered the reasons initially warranting detention obsolete or as new factors capable of affecting the lawfulness of his detention.” 

“Nor could it be said that the Applicant’s sentence was divided into a punitive period and a security period as he claimed. Accordingly, the Court considered that the review of the lawfulness of the Applicant’s detention required under Article 5(4) had been incorporated in the conviction pronounced by the courts, no further review therefore being required.” 

146. “The Court considers the complaint made in the present cases to be indistinguishable from the complaint made in Kafkaris (No.2). It is clear from the provisions of Maryland law which are before the Court that any sentence of life imprisonment without parole would be imposed to meet the requirements of punishment and deterrence. Such a sentence would therefore be different from the *607 life sentence considered in Stafford, which the Court found was divided into a tariff period (imposed for the purposes of punishment) and the remainder of the sentence, when continued detention was determined by considerations of risk and dangerousness.” 

“Consequently, as in Kafkaris (No.2), the Court is satisfied that, if convicted and sentenced to life imprisonment without parole, the lawfulness of Applicant’s detention required under Article 5(4) would be incorporated in the sentence imposed by the trial, and no further review would be required by this Article. Accordingly, this complaint is manifestly ill‑founded and must be rejected.” 

Citation: [Mr. Edwards’ Application No. [9146/07 and 32650/07] [Harkins and] Edwards v. United Kingdom, (2012) 55 E.H.R.R. 19; 19 Times, 2/13/2012 (Eur. Ct. Hum. Rts. 2012).

Extradition Treaty between the United States and Belgium; District of Columbia Circuit affirms ...

Nizar Trabelsi was a Tunisian national convicted in Belgium for a variety of crimes, including attempting to destroy a military base.


On April 7, 2006, while Trabelsi was serving his sentence in Belgium, a grand jury in the United States indicted him for various offenses. The indictment charged Trabelsi with four Counts: Count 1—conspiracy to kill United States nationals outside of the United States in violation of 18 U.S.C. §§ 2332(b)(2) and 1111(a); Count 2—conspiracy and attempt to use weapons of mass destruction against nationals of the United States while such nationals were outside of the United States, and against property used by the United States and a department and agency of the United States in violation of 18 U.S.C. §§ 2332a and 2; Count 3—conspiracy to provide material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. § 2339B; and Court 4—providing material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. §§ 2339B and 2. 

The United States requested that Belgium extradite Trabelsi on April 4, 2008, attaching an affidavit from the Department of Justice describing the offenses, and their elements, for which the United States sought to prosecute him. Trabelsi challenged the extradition request in Belgium, arguing that his extradition would violate certain provisions of the Extradition Treaty. On November 19, 2008, the Court Chamber of the Court of First Instance of Nivelles held that the United States arrest warrant was enforceable, except as to the overt acts labeled numbers 23, 24, 25, and 26 in the indictment. The Court of Appeals of Brussels affirmed this decision on February 19, 2009. On June 24, 2009, the Belgian Court of Cassation affirmed the Court of Appeals. *1184

The District Court concluded that Trabelsi had standing to challenge his extradition and that it had jurisdiction to review his extradition. Using the analysis articulated in Blockburger, 284 U.S. 299, 52 S.Ct. 180, the District Court determined that Trabelsi was not charged with the same offenses in the indictment for which he was tried and convicted in Belgium. By application, Trabelsi appealed the Minister’s decision to the Belgian Council of State, which also concluded that the United States offenses are different and that "’overt acts’ constitute elements to determine whether [Trabelsi] is guilty or not guilty,” and rejected his application on September 23, 2013. Belgium extradited Trabelsi to the United States on October 3, 2013. He was arraigned the same day.

On September 15, 2014, Trabelsi moved to dismiss the indictment for violating the Extradition Treaty. He argued that his extradition violated Article 5 of the Treaty because Belgium had already tried and convicted him “for the offense for which extradition was requested.” Using the analysis articulated in Blockburger, 284 U.S. 299, 52 S.Ct. 180, the District Court determined that Trabelsi was not charged with the same offenses in the indictment for which he was tried and convicted in Belgium, J.A. 754-64. Trabelsi appealed the decision. *1185

The United States Court of Appeals held that the District Court’s order denying Trabelsi’s motion to dismiss the indictment fits within the collateral-order exception, and it had jurisdiction to consider Trabelsi’s appeal. See Duarte-Acero, 208 F.3d at 1284 (applying Abney to a motion to dismiss an indictment based on a double-jeopardy provision included in a treaty). 

The Government contended that the Appeals Court lacked jurisdiction to review Trabelsi’s extradition because it must defer to Belgium’s decision that the offenses charged in the indictment did not violate Article 5 of the Treaty. Trabelsi submitted that the Appeals Court had jurisdiction to review his extradition and owed no deference to Belgium’s decision. The Court held that it did have jurisdiction to review Belgium’s decision, but that the review was highly deferential. *1186

It was for Belgium, as the requested party, to determine whether to grant extradition, see Treaty, Art. 11, S. TREATY DOC. NO. 104-7, if Trabelsi “ha[d] [not] been found guilty, convicted, or acquitted in [Belgium] for the offense for which extradition [was] requested,” Treaty, Art. 5, S. TREATY DOC. NO. 104-7. The Belgian Minister determined that Trabelsi’s extradition would not violate the Treaty, and the Court of Appeals will not “second-guess [Belgium’s] grant of extradition.” Campbell, 300 F.3d at 209.

The deferential approach meant that “we will presume that if [Belgium] does not indicate that an offense specified in the request is excluded from the extradition grant, [Belgium] considers the offense to be a crime for which extradition is permissible.” Campbell, 300 F.3d at 209. The extradition grant did not exclude any of the offenses included in the request for extradition. As a result, the Court presumed that Belgium has determined that none of the offenses in the indictment violated Article 5 of the Treaty. This presumption was not irrebuttable, however. Evidence that might rebut the presumption would include misconduct on the part of the United States in procuring an extradition, see Casey, 980 F.2d at 1475, or the absence of review of the extradition request by the requested party. Trabelsi, however, offered no such evidence. *1189

The legislative history surrounding the Extradition Treaty’s ratification also supported interpreting the Treaty to apply to offenses, not conduct. The Senate Committee on Foreign Relations issued an Executive Report at the time the Treaty was ratified in 1996. The report explains that “[t]his paragraph permits extradition... if the person sought is charged in each Contracting State with different offenses arising out of the same basic transaction.” Id. (emphasis added). The Court deferred to the decision of the Belgian courts and Minister of Justice that, based on an offense-based analysis, Trabelsi’s extradition comported with Article 5 of the Treaty, since Trabelsi had offered nothing of merit to rebut the presumption. Because Trabelsi’s challenges failed, the Court was not needed to decide whether the charges in the U.S. indictment and the crimes for which Belgium convicted Trabelsi were identical under Blockburger. *1190

The concurring colleague stated that Belgian courts should be not be accorded this measure of deference and that, instead, the Court should test the indictment under Blockburger. The other judges could not agree for three principal reasons: First, Blockburger applies when a defendant raises a challenge under the Double Jeopardy Clause of the U.S. Constitution, but Trabelsi did not and could not present such a challenge in this matter; Second, given the historical context of the Treaty, it is implausible that Article 5 mandates a Blockburger analysis as in 1987, when the Treaty was ratified, the law of double jeopardy under the U.S. Constitution was not settled;  Third, the deferential approach protected each party’s prerogatives under the Treaty. Belgian authorities repeatedly construed Belgian criminal law, and stacked those constructions up against the proffered description of U.S. criminal law. These analyses showed that Belgium had a reasoned basis for concluding that Trabelsi could be extradited, and that conclusion—based in substantial measure on Belgium’s construction of its own law—is entitled to considerable deference. *1192

Even outside the context of specialty and dual criminality, U.S. courts will defer to the judgment of foreign courts construing their own laws. See, e.g., United States ex rel. Saroop v. Garcia, 109 F.3d 165, 168-69 (3d Cir. 1997) (affirming an extradition after “defer[ring] to the judgment of the High Court of Justice for Trinidad and Tobago on the validity of the [operative] extradition treaty and its continuing vitality at the time of ... extradition”). 

International comity remains important in this context. The deference here is customary, rather than “excessive” or “extraordinary,” as the concurring colleague claimed. *1193

The concurring colleague casts doubt on the Belgian proceedings because, purportedly, “Belgium has fulfilled its interest in this case.” Concurring Op. at 1195. But the Judges had no reason to suppose that because Trabelsi served his Belgian sentence, Belgian authorities subjected the extradition request to lighter scrutiny than was warranted; the double-jeopardy principle itself is worth protecting. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 476 cmt. c (AM LAW INST. 1987) (“The principle that a person should not be subject to double jeopardy is common to legal systems generally, and in many countries is constitutionally mandated.”). The record contains nothing to support the concurrence’s speculation.

The Court of Appeals affirmed the order denying Trabelsi’s motion to dismiss the indictment. 

CITATION: US v. Trabelsi, 845 F. 3d 1181—Court of Appeals, Dist. of Columbia Circuit 2017.

In the context of a criminal trial of supporters of allegedly terrorist organization in Somalia ...

Patrick Megaro (Criminal Defense Law), Case on Criminal Law


Amina Farah Ali and Hawo Mohamed Hassan, both from Somalia, are United States naturalized citizens living in Minnesota. In February 2008, the Secretary of State designated al Shabaab as a foreign terrorist organization. That same year, the FBI learned that Ali had contacted members of al Shabaab. Both Ali and Hassan were criminally charged.

During the ten-day trial in 2011, the jury learned about the history of Somalia and the goal of al Shabaab “to impose [its] version of Islamic law on Somalia”, as explained by the expert witness, Matthew Bryden. 

The Government presented evidence that Ali and Hassan planned and participated in fundraising teleconferences in which a speaker would give a lecture; that Hassan kept track of the donors’ phone numbers; that Ali spoke with Hassan Afgoye, who at one time was responsible for al Shabaab’s finances, and discussed money that she arranged to be sent to him or to his associates; that Ali also spoke with Agoye about the activities of al Shabaab in Somalia, and was happy to learn that enemies were killed; and that Hassan spoke with members of al Shabaab and he was happy to hear about the killings carried out by this group. Furthermore, the Government presented evidence of Ali’s and Hassan’s connection with groups both inside and outside of Somalia, and with terrorists such as Hassan Dahir Aweys, and demonstrated that al Shabaab had connections to al Qaeda. The Government further presented evidence related to two false-statement counts against Hassan which were related to statements made in 2009 to an FBI agent that Ali did not know anyone who sent money to al Shabaab and similar groups; nor that Ali had ever asked that money be sent to Somalia or elsewhere through a “hawala” (an informal value transfer system based on the performance and honor of a network of money brokers).

In their closing arguments, Ali and Hassan defended their actions as an intention to provide humanitarian relief to Somalia. The jury returned a guilty verdict on all counts. The district court sentenced Ali to 240 months in prison and Hassan to 120 months in prison. Both Ali and Hassan appealed. 

The United States Court of Appeals for the Eighth Circuit affirms the district court’s decision. 

In a de novo review, the Court decides the issue raised by Ali and Hassan on whether the designation of a foreign organization as a terrorist organization by the Secretary of State violates their due process. 

First, Ali and Hassan claimed that their material-support convictions violate the Due Process Clause of the Fifth Amendment. 

“As relevant here, the material-support statute forbids ‘knowingly provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so.’ 18 U.S.C. § 2339B(a)(1). The phrase ‘foreign terrorist organization’ is a term of art that is defined in 8 U.S.C. § 1189(a)(1). Under this provision, the Secretary of State may designate an organization a foreign terrorist organization if the Secretary finds that (1) the organization is a ‘foreign organization’; (2) the organization engages in ‘terrorist activity’ or ‘terrorism’ or ‘retains the capability and intent to engage in terrorist activity or terrorism’; and (3) ‘the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.’ Id. Section 1189 also provides a mechanism by which an organization can seek judicial review of its designation as a foreign terrorist organization in the United States Court of Appeals for the District of Columbia Circuit. Id. § 1189(c)(1). However, this ability to challenge a designation belongs to the organization, not a defendant in a criminal proceeding. Id. § 1189(a)(8).”

Second, Ali and Hassan argued that prohibiting them from challenging the Secretary of State’s designation of al Shabaab as a foreign terrorist organization also offends due process. 

“[…]For purposes of the Due Process Clause, the Supreme Court has stated that ‘in determining what facts must be proved beyond a reasonable doubt the . . . legislature’s definition of the elements of the offense is usually dispositive.’ McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). Under 18 U.S.C. § 2339B, ‘Congress has provided that the fact of an organization’s designation as [a foreign terrorist organization] is an element of [the crime], but the validity of the designation is not.’ Hammoud, 381 F.3d at 331. Thus, like our sister circuits, we hold that it comports with due process to prohibit a criminal defendant from challenging the validity of the Secretary of State’s designation of a foreign terrorist organization. See id.; Afshari, 426 F.3d at 1155-59. In reaching this conclusion, we note that an organization’s designation as a foreign terrorist organization is not wholly immune from challenge. The statute provides a method by which an organization, rather than a criminal defendant, can contest the Secretary of State’s designation. 8 U.S.C. § 1189(c); see Lewis v. United States, 445 U.S. 55, 65-67 (1980).”

The Court also rejects Ali’s and Hassan’s argument that allowing the Secretary of State to designate foreign terrorist organizations amounts to an unconstitutional delegation of legislative power.

“The longstanding rule is that ‘Congress may delegate its legislative power if it `lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’ South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 795 (8th Cir. 2005) (alterations in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Congress has ‘wide latitude in meeting the intelligible principle requirement . . . [because] `Congress simply cannot do its job absent an ability to delegate power under broad general directives.’ Id. (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). ‘Congress fails to give sufficient guidance in its delegations only if it `would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.’ Id. at 796 (quoting Yakus v. United States, 321 U.S. 414, 426 (1944)).”

“The statutory scheme governing the designation of foreign terrorist organizations provides an intelligible principle. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir. 2000) (explaining that § 1189(a) ‘does not grant the Secretary unfettered discretion in designating the groups to which giving material support is prohibited). […]As the Ninth Circuit has observed, ‘[t]he Secretary could not, under this standard, designate the International Red Cross or the International Olympic Committee as [foreign] terrorist organizations. Rather, the Secretary must have reasonable grounds to believe that an organization has engaged in terrorist acts—assassinations, bombings, hostage-taking and the like—before she can place it on the list.” Humanitarian Law Project, 205 F.3d at 1137.[…]”

Ali and Hassan also argued against the requirement that the Secretary of State determines that an organization “threatens the security of United States nationals or the national security of the United States.” 8 U.S.C. § 1189(a)(1)(C). Furthermore, they argued that the term “national security” is “defined without meanings.”

“[…] But the statute defines ‘national security’ to mean ‘the national defense, foreign relations, or economic interests of the United States.’ Id. § 1189(d)(2). That this definition is general and broad does not an unintelligible principle make. See South Dakota, 423 F.3d at 795. Moreover, ‘[t]he Supreme Court has repeatedly underscored that the intelligible principle standard is relaxed for delegations in fields in which the Executive traditionally has wielded its own power.’ Hepting v. AT&T Corp. (In re Nat’l Sec. Agency Telecomms. Records Litig.), 671 F.3d 881, 89798 (9th Cir. 2011) (collecting cases); see Zemel v. Rusk, 381 U.S. 1, 17 (1965) (‘Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than it customarily wields in domestic areas.’). For these reasons, we hold that granting the Secretary of State the ability to designate an organization a foreign terrorist organization does not constitute an unconstitutional delegation of legislative authority.”

The Court affirms district court’s decision. 

Citation: US v. Ali, 799 F.3d 1008 (8th Cir. 2015). 


In case of extradition request from Mexico for a 2006 murder in Mexico, Sixth Circuit considers ...

Samuel Francisco Solano Cruz was to host a goat roasting party for the municipal leaders of Santa Maria Natividad, a village in the State of Oaxaca, Mexico, and for the members of the town band on New Year’s Day 2006. He went to a New Year’s Eve party outside the local municipal hall to deliver the invitations. Shortly after he arrived he was approached by a man screaming “son of a bitch!” and who then shot him six times. A bystander, Antolin Cruz Reyes, who came to Solano Cruz’s help, was shot as well. The murderer then got in his truck and fled the scene. Both men died from their wounds.


Avelino Cruz Martinez, then a United States permanent resident (and a citizen since 2010) was accused by Solano Cruz’s family of the murders. Within two weeks of the shooting, Solano Cruz’s widow and parents met with Cruz Martinez’s wife and brother, who lived in Santa Maria Natividad, before a town clerk and signed an agreement stating that Cruz Martinez had “committed the homicide.” The agreement also provided that Cruz Martinez’s family would pay 50,000 pesos for the expenses incurred by Solano Cruz’s relatives as a result of the “unfortunate incident,” and that once the parties accept the agreement and enact its terms the matter shall be closed. 

A few days after the families’ agreed, two eyewitnesses made sworn statements before public officials, pointing to Cruz Martinez as the New Year’s Eve murderer. On February 23, 2006, an Oaxacan judge issued an arrest warrant charging Cruz Martinez with “murder with the aggravating circumstance of unfair advantage,” and notified the public prosecutor’s office the next day. 

Following the murders, Cruz Martinez returned to the United States—Lebanon, Tennessee. He traveled back to Mexico a couple of times. 

When in 2009, an American consular official asked about the status of Cruz Martinez’s arrest warrant the Oaxacan court responded that it was “still pending and executable.” In May 2012, the Mexican government filed a diplomatic note with the United States Department of State, informing it of the charges against Cruz Martinez and requesting his “provisional arrest.” Over a year later, he was arrested by the American authorities. The Mexican officials filed a formal extradition request in August 2013.

Complying with the diplomatic, judicial, and quasi-judicial procedures, the Secretary of State filed Mexico’s extradition request with a federal magistrate judge in Tennessee. Cruz Martinez raised multiple challenges to his provisional arrest and to the extradition proceedings, which were rejected by the magistrate judge. The magistrate judge certified to the Secretary of State that Cruz Martinez could be extradited. Cruz Martinez then filed a habeas corpus action contesting the magistrate judge’s certification decision. He argued that his prosecution has become barred by (1) the relevant American statute of limitations and (2) the Speedy Trial Clause of the Sixth Amendment to the United States Constitution. The district court denied his petition. Cruz Martinez appealed. 

The United States Court of Appeals for the Sixth Circuit affirms district court’s decision. 

“’Extradition shall not be granted,’ Article 7 of the United States-Mexico Extradition Treaty says, ‘when the prosecution or the enforcement of the penalty’ for the charged offense ‘has become barred by lapse of time according to the laws of the requesting or requested Party.’ Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064-65.”

Cruz Martinez argued that the charged offense is analogous to second-degree murder under American federal law, meaning that a five-year limitations period applied to the charges. However, the Court agrees with the panel majority’s opinion that the statute of limitations did not expire even if the five-year period applies. 

“‘[N]o person shall be prosecuted, tried, or punished for any [non-capital] offense,’ the five-year limitations statute provides, ‘unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.’ 18 U.S.C. § 3282(a). Because statutes of limitations protect defendants from excessive delay between the time of the offense and the time of prosecution, they stop running when the prosecution begins—which means, in American federal courts, when an indictment or information is returned. United States v. Marion, 404 U.S. 307, 320-23 (1971). But Mexico, which models its legal system not on Blackstone’s common law but on Napoleon’s civil law, lacks the sort of indictment and information procedures that exist in the United States. Miguel Sarré & Jan Perlin, ‘Mexico,’ in Criminal Procedure: A Worldwide Study 351, 372 (Craig M. Bradley ed., 2d ed. 2007). Does that mean there is nothing Mexico can do under § 3282 to prevent a ‘lapse of time’ from occurring? No: Because the issuance of an arrest warrant marks the end of the preliminary investigation and the beginning of the prosecution in Mexico, that event stops the American statute of limitations from running. And because a Mexican court issued an arrest warrant within two months of Cruz Martinez’s alleged offense, the five-year limitations period does not bar his prosecution.”

“The only other circuit to consider this question agrees. It held that ‘a Mexican arrest warrant is the equivalent of a United States indictment and may toll the United States statute of limitations’ for purposes of an extradition treaty. Sainez v. Venables, 588 F.3d 713, 717 (9th Cir. 2009). The Third Restatement of Foreign Relations Law echoes the point. ‘For purposes of applying statutes of limitation to requests for extradition,’ it notes, courts generally calculate the limitations period ‘from the time of the alleged commission of the offense to the time of the warrant, arrest, indictment, or similar step in the requesting state, or of the filing of the request for extradition, whichever occurs first.’ Restatement (Third) of the Foreign Relations Law of the United States § 476 cmt. e (1987).”

Cruz Martinez argued that Mexico should be able to satisfy § 3282 even though it does not have an indictment or information procedure. He further argued that American clock keeps ticking until Mexico does something that would stop the limitations period from running Under Mexican law, which cannot be an arrest warrant. 

“[…] The extradition treaty, however, offers a defense to extradition when prosecution is barred ‘according to the laws of the requesting or requested Party,’ Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5065—a formulation that does not require us to mix and match national laws by applying Mexican legal requirements to American limitations periods. That language is especially significant given that some extradition treaties do demand this sort of jumbling, requiring the requested State to ‘take[] into consideration insofar as possible’ any ‘acts constituting an interruption or a suspension of the time-bar in the Requesting State.’ Extradition Treaty, U.S.-Belg., art. 2(6), Apr. 27, 1987, T.I.A.S. No. 97-901, at 2; see also Extradition Treaty, U.S.-Lux., art. 2(6), Oct. 1, 1996, T.I.A.S. No. 12,804, at 4. The American statute of limitations does not bar Cruz Martinez’s prosecution.”

In a separate argument Cruz Martinez stated that the treaty’s “barred by lapse of time” provision picks up the Speedy Trial Clause of the Sixth Amendment to the United States Constitution, which says that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The Court did not agree with this argument.

“[…] When the Sixth Amendment says ‘all criminal prosecutions,’ it refers to all prosecutions in this country, not anywhere in the world. See United States v. Balsys, 524 U.S. 666, 672-75 (1998). […][T]he guarantee applies to extradition proceedings, which are not ‘criminal prosecutions.’ See Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993). […] The text and context of the treaty provision, the illuminating history behind it, and all precedential authority and scholarly commentary establish that the phrase ‘barred by lapse of time’ does not incorporate the American Constitution’s speedy-trial guarantee.”

“Text. Article 7, recall, prohibits extradition ‘when the prosecution or the enforcement of the penalty for the offense for which extradition has been sought has become barred by lapse of time according to the laws of the requesting or requested Party.’ Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064-65. Put less passively, time must do the barring. Yet the Sixth Amendment does not create a fixed time bar on trial initiation—a time limit after which the trial must be called off. As the Supreme Court has explained, the speedy-trial right is ‘consistent with delays’ (and thus consistent with lapses of time) and ‘depends upon circumstances,’ as it is ‘impossible to determine with precision when the right has been denied’ in our system of ‘swift but deliberate’ justice. Barker v. Wingo, 407 U.S. 514, 521-22 (1972) (emphasis added) (quotation omitted). The right is a ‘relative,’ ‘amorphous,’ and ‘slippery’ one. Id. at 522 (quotation omitted). Because the Sixth Amendment does not establish a time limit, fixed or otherwise, before a trial must start, it does not create a rule that ‘bar[s]’ criminal prosecutions due to ‘lapse of time.’”

“Not only does Cruz Martinez’s argument require us to add something to the Sixth Amendment that does not exist (a time bar), it requires us to subtract requirements of the Sixth Amendment that do exist. A criminal defendant cannot win a Sixth Amendment challenge by pointing to a calendar and counting off the days. He instead must show that, by balancing the four factors the Supreme Court has instructed us to consider in speedy-trial cases, he should receive relief. Id. at 530-33. The ‘[l]ength of delay,’ it is true, is one of those factors—but only one. Id. at 530. Courts also must weigh “the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant’ in determining whether a speedy-trial violation occurred. Id. Even if there has been considerable delay, for example, ‘a valid reason’ for that delay, ‘such as a missing witness, should serve to justify’ it. Id. at 531. If a defendant fails to object contemporaneously to the lapse of time, the Supreme Court has told us, that will also ‘make it difficult for [him] to prove that he was denied a speedy trial.’ Id. at 532. ‘[N]one of the four factors’—not even delay of a specified length—is ‘a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.’ Id. at 533. The Court could not be clearer: Lapse of time, standing alone, does not—cannot—violate the Speedy Trial Clause in the absence of at least some of the other factors. We know of no case in which a lapse of time by itself created a speedy-trial violation—or, to put it in the words of the treaty, in which the prosecution was ‘barred by lapse of time.’”

“Another textual clue points in the same direction. The treaty does not cover any and all ‘lapse[s] of time’ that may occur in a criminal case. It applies only to time lapses with respect to ‘the prosecution or the enforcement of the penalty’ for the charged offense. Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064-65. That language naturally applies to statutes-of-limitations periods that ‘bar[]’ the commencement of a ‘prosecution’ or ‘enforcement’ proceeding. It also naturally applies to limitations periods that ‘bar[]’ ‘penalt[ies]’ already handed down from being ‘enforce[d]’ to the extent any exist—limitations periods that, while generally unknown in the United States, are common in civil law countries like Mexico. See Yapp v. Reno, 26 F.3d 1562, 1568 (11th Cir. 1994). The same is not true for guarantees that apply after an indictment (or its equivalent) through the end of trial. Just as this treaty provision would not cover criminal procedure guarantees that apply to a trial already begun, it does not naturally apply to speedy-trial requirements that prohibit the criminal process, once started, from continuing. The speedy-trial right after all operates not by barring the initiation of a prosecution but by preventing it from continuing, see Marion, 404 U.S. at 320-23, and may not apply to the execution of sentences already pronounced, cf. United States v. Melody, 863 F.2d 499, 504-05 (7th Cir. 1988). These rights, like trial guarantees, usually kick in outside the two periods in which extradition limits apply: (1) the initiation of a prosecution and (2) the enforcement of a ‘judicially pronounced penalty of deprivation of liberty.’ Extradition Treaty, U.S.-Mex., supra, art. 1(1), 31 U.S.T. at 5061.”

The Court then looks for the answers in legal dictionaries, extradition treaties, state laws, precedents and commentaries. 

“[…] In this case, as in many cases involving treaty interpretation, we have not one official text but two—the English and Spanish versions of the treaty, each of which is ‘equally authentic.’ Id., 31 U.S.T. at 5075. The English version of Article 7 bears the title ‘Lapse of Time,’ while the Spanish version says ‘Prescripción.’ Compare id., art. 7, 31 U.S.T. at 5064, with id., art. 7, 31 U.S.T. at 5083. And the phrase ‘barred by lapse of time’ reads, in the Spanish version of the text, ‘haya prescrito,’ using a verb form related to the noun ‘prescripción.’ Compare id., art. 7, 31 U.S.T. at 5065, with id., art. 7, 31 U.S.T. at 5083. We must interpret the translated documents in tandem, because, ‘[i]f the English and the Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail.’ United States v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833). […]”

“The English and Spanish texts of the 1978 extradition treaty ‘conform[]’ quite easily, it turns out, because ‘prescripción’ means ‘statute of limitations.’ Bilingual legal dictionaries tell us as much, with one Spanish-English dictionary providing ‘[s]tatute of limitations’ as the first definition of ‘prescripción.’ Henry Saint Dahl, Dahl’s Law Dictionary 385 (6th ed. 2015). Mexican legal provisions tell us as much, because Article 88 of the Code of Criminal Procedure of Oaxaca—the state where Cruz Martinez’s alleged crimes occurred—uses the phrase ‘[c]ómputo de la prescripción’ to describe the ‘[c]alculation of the [s]tatute of [l]imitations.’ R. 2-19 at 2, 7. Previous treaties tell us as much, because the 1899 United States-Mexico extradition treaty translates the phrase ‘has become barred by limitation’ (a phrase that, as Cruz Martinez concedes, refers only to statutes of limitations) as ‘la prescripción impida.’ Treaty of Extradition, U.S.-Mex., art. III(3), Feb. 22, 1899, 31 Stat. 1818, 1821. […]”

“The practice of using these terms as synonyms within the law of extradition continues today. Take our treaty with South Korea, which, in a section titled ‘Lapse of Time,’ permits the parties to deny extradition ‘when the prosecution or the execution of punishment’ for the charged offense ‘would have been barred because of the statute of limitations of the Requested State.’ Extradition Treaty, U.S.-S. Kor., art. 6, June 9, 1998, T.I.A.S. No. 12,962, at 4; see Extradition Treaty, U.S.-Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866, at 5 (stating, in an article titled ‘Lapse of Time,’ that ‘[e]xtradition shall not be denied on the ground that the prosecution or the penalty would be barred under the statute of limitations in the Requested State) […]”

“The phrase ‘lapse of time’ also holds a similar meaning in American law, where it has been used in the context of state laws applying out-of-state statutes of limitations to out-of-state causes of action. Consider the Minnesota borrowing statute upheld by the Supreme Court in Canadian Northern Railway Co. v. Eggen. 252 U.S. 553 (1920). The statute provided that, ‘[w]hen a cause of action has arisen outside of this state, and, by the laws of the place where it arose, an action thereon is there barred by lapse of time, no such action shall be maintained in this state unless the plaintiff be a citizen of the state who has owned the cause of action ever since it accrued.’ Id. at 558 (emphasis added) (quotation omitted). The Court characterized this statute, phrased in ‘precisely the same’ terms ‘as those of several other states,’ as granting a ‘nonresident the same rights in the Minnesota courts as a resident citizen has, for a time equal to that of the statute of limitations where his cause of action arose.’ Id. at 560 (emphasis added).”

“Every case on the books has concluded that this phrase encompasses only statutes of limitations. The Eleventh Circuit faced Cruz Martinez’s precise argument and rejected it. Here is what the court said:

‘Weighing heavily against [the accused’s] position is the fact that for over a century, the term `lapse of time’ has been commonly associated with a statute of limitations violation. . . . Thus, we hold that the `lapse of time’ provision in Article 5 of the [United States-Bahamas] Extradition Treaty refers to the running of a statute of limitations and not to a defendant’s Sixth Amendment right to a speedy trial.’ Yapp, 26 F.3d at 1567-68. A district court has reached the same conclusion. Gonzalez v. O’Keefe, No. C 12-2681 LHK (PR), 2014 WL 6065880, at *2-4 (N.D. Cal. Nov. 12, 2014). […]”

“So far as our research and the research of the parties have revealed, all scholars see it the same way. The Third Restatement of Foreign Relations Law notes that, ‘[u]nder most international agreements, state laws, and state practice,’ an individual ‘will not be extradited . . . if the applicable period of limitation has expired.’ Restatement, supra, § 476. The commentary to that provision notes that some treaties prohibit extradition if prosecution ‘has become barred by lapse of time,’ ‘if either state’s statute of limitations has run,’ or if there is a ‘time-bar.’ Id. § 476 cmt. e. Eliminating any doubt, the section concludes by noting that, ‘[i]f the treaty contains no reference to the effect of a lapse of time, neither state’s statute of limitations will be applied.’ Id. The only way to make sense of the Restatement’s discussion is to recognize that each of these terms—‘period of limitation,’ ‘lapse of time,’ ‘time-bar,’ ‘statute of limitations’—means the same thing.”

“Because the constitutional speedy-trial right has no fixed time limit, in contrast to statutes of limitations, what extraditee will not raise the claim in all of its indeterminate glory? The mutability of the right makes it impossible to know how much delay is too much delay. Take the alleged delay in Cruz Martinez’s case: around six years. Although a delay of one year or more is presumptively prejudicial, six years may not be enough to state a speedy-trial claim in view of other considerations, our court has said, when the government is not to blame for the delay and the defendant does not identify any evidence of prejudice. See United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006). […]”

The Court concluded that “[i]n the final analysis, Cruz Martinez’s argument comes up short. No matter where we look—to the text of this treaty (in English and Spanish), to the text of other treaties, to historical principles underlying those treaties, to judicial decisions interpreting those treaties, to commentaries explaining those treaties, to guidance explaining how to draft those treaties, to the Factor default rule—all roads lead to the same conclusion. The United States and Mexico did not impose a speedy-trial limit when they forbade the extradition of fugitives whose ‘prosecution’ was ‘barred by lapse of time.’”

The Court affirmed district court’s decision. 

Judge Clay dissented.

“The majority’s premise—that the phrase ‘lapse of time’ refers only to a fixed statutory limitations period—is not supported by any of the multitude of cases, treaties, or texts it cites. The majority points to no authority of any kind that associates this distinctive language with, much less restricts it to, statutes of limitation. ‘Lapse of time’ is a phrase frequently used in connection with any number of legal doctrines that operate based on the passage of time—including speedy trial rights. These uses are too numerous and varied to permit the conclusion that the term ‘lapse of time’ is so strongly or so inherently associated exclusively with statutes of limitation that the treaty’s drafters relied on it as a term of art to refer solely to statutes of limitation. Instead, the frequent use of the phrase in connection with constitutional speedy trial claims confirms that a literal reading of the text of Article 7 incorporates the Speedy Trial Clause.”

“For these reasons, this case should be remanded for the district court to determine whether Cruz Martinez’s Speedy Trial Clause rights were violated.”

Judge Bernice Bouie Donald also dissented. “The treaty’s text is ambiguous. The English version’s ‘lapse of time’ language is broad enough to include the Sixth Amendment’s speedy trial guarantee as Judge White’s concurrence and Judge Clay’s dissent ably demonstrate. However, the Spanish version’s use of ‘prescripción’ is narrow enough to exclude the Sixth Amendment’s speedy trial guarantee as the majority’s erudite opinion makes clear. Since the treaty appears to say one thing in English and another in Spanish, we cannot resolve this case through a plain-meaning textual analysis. That said, I agree with Judge Clay that history and policy considerations support reading the Sixth Amendment’s speedy trial clause into the treaty.”


Citation: Martinez v. US, 828 F.3d 451 (6th Cir. 2016).