corruption or sexual assault of that minor. See Sharpton v. Turner, slip op. at 3892 (Grady limited to situations where prosecution seeks to prove greater offense by same "conduct that formed the entirety of a lesser offense previously prosecuted").
A person can be guilty of transporting child pornography under § 2252(a)(1) without any proof that he participated in its production. More importantly for purposes of this case, even the production of child pornography does not require the perpetrator sexually to assault a minor after taking a lascivious picture of her genitals. It is, however, Montiel's own sexual assault upon a child that is crucial to the two crimes for which Mexico seeks his extradition. Such "sexual acts" were simply not an element of the crime for which he was prosecuted in this country. Neither is the criminal transportation of lascivious photographs central to any element of the Mexican crimes at issue.
This court recognizes that Montiel's possession of a lascivious photograph of the child will serve to corroborate the child's account of how he had her disrobe and assume certain positions before engaging her in a sexual act. The mere fact that the same evidence may be used in two prosecutions does not, however, mean that those prosecutions involve the same conduct. United States v. Felix, 112 S. Ct. at 1382 ("mere overlap in proof between two prosecutions does not establish a double jeopardy violation"); Grady v. Corbin, 495 U.S. at 521-22 ("presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding"); Dowling v. United States, 493 U.S. 342, 348 (1990); Sharpton v. Turner, slip op. at 3889. Thus, this court finds no double jeopardy bar to Montiel's extradition.
Montiel argues that the "conduct" analysis prescribed by Grady v. Corbin in connection with constitutional claims of double jeopardy is not applicable to treaty prohibitions on successive prosecutions for the same offense. In support of a separate approach, he cites Sindona v. Grant, supra, wherein Judge Friendly, writing for the Circuit, observed that "in construing a double jeopardy clause in a treaty, embodying an ancient and widely recognized principle of civilized conduct, a court should not deem itself bound by a quiddity of the law of the requested party." 619 F.2d at 178.
A careful reading of Sindona, however, fails to support Montiel's argument. First, the "quiddity of law" to which the court referred was not the Constitution's Double Jeopardy Clause, but only the holding of Blockburger v. United States, supra, applying that clause to a discrete fact pattern. Moreover, the court not only did not distinguish between the constitutional protection against double jeopardy and a treaty's double jeopardy provision, it affirmatively recognized the need for some reference to domestic law in light of the absence of international agreement on the scope of the concept. See id. at 177-78. Thus, the court did not reject the applicability of domestic double jeopardy law to interpretation of a treaty's similar provision. It only rejected the government's contention that Blockburger was the full expression of such protection: "Blockburger. . . does not even mark the outmost bounds of protection of the double jeopardy clause of the Fifth Amendment . . . ." Id. at 178.
Ultimately, what Sindona approved was an inquiry into "whether the same conduct or transaction" underlies both the criminal prosecution conducted in the requested country and the prosecution contemplated by the requesting country. Id. In support, the court cited to Justice Brennan's discussion of the scope of the Constitution's double jeopardy protection in his concurrence in Ashe v. Swenson, 397 U.S. 436, 453-54 (1970): "the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one time all the charges against a defendant which grew out of a single criminal act, occurrence, episode or transaction."
Montiel seizes on this language in Ashe in urging this court to focus on the "transaction" rather than the "conduct" at issue in considering his Article 6 challenge to extradition. The court declines to do so. Since Sindona, the Supreme Court has specifically rejected the broad "transaction" view of constitutional double jeopardy suggested in the Ashe concurrence and instead has held that the term "offense" should be considered in light of the "conduct" for which a defendant has been prosecuted. See Grady v. Corbin, 495 U.S. at 523-24 n.15; Garrett v. United States, 471 U.S. 773, 790 (1985).
In fact, there is reason to think that even Sindona recognized that "conduct" was a surer measure than "transaction" in considering a treaty's double jeopardy protection. Citing an example drawn from the Department of Justice's Petite policy -- dealing with the discretionary decision to decline federal prosecution of a defendant for the "same act or acts" already prosecuted by the state -- Judge Friendly observed that a defendant involved in a prison break could be prosecuted federally for kidnapping in connection with the break, and in state court for escape, burglary, robbery, and theft stemming from the same prison break. See Sindona v. Grant, 619 F.2d at 179. The two prosecutions arguably involve the same transaction, but not the same conduct. Thus, Sindona does not so much depend on the Ashe concurrence as it anticipates the holding in Grady. The key double jeopardy inquiry, whether for purposes of a treaty or the Constitution, is whether the conduct for which a defendant has already been prosecuted establishes an essential element of an offense for which prosecution is now contemplated. Proof of a prison escape, burglary, robbery, or theft does not prove kidnapping. Similarly, proof of transportation of lascivious photographs of a minor does not prove that sexual acts were committed on the minor.
Montiel contends that even if his prosecution for transporting sexually explicit photographs does not bar his Mexican prosecution for sexual assault and corruption of a minor, the fact that he could have been prosecuted in the United States under 18 U.S.C. § 2251(a) for conduct in Mexico precludes extradition. Montiel cites Galanis v. Pallanck, 568 F.2d 234 (2d Cir. 1977), in support of his argument. In that case, Canadian authorities sought Galanis's extradition on fraud charges. At issue was whether the extradition was controlled by an older treaty that did not contain a double jeopardy provision or by a more recent treaty that did provide such protection. Id. at 236. Galanis had pleaded guilty to fraud charges in the United States pursuant to an agreement that the government conceded was intended to cover the fraud for which Canada sought extradition. He had been sentenced to terms of imprisonment in connection with those pleas. It was the United States that conceded -- not the court that found -- that Galanis had, therefore, already been punished in the United States for the offense for which his extradition was sought by Canada. Id.
In this case, the government does not concede that its plea agreement with Montiel was ever intended to cover the Mexican charges. Indeed, the agreement expressly states that it does not prohibit a third party, such as Mexico, from requesting extradition. At the time Montiel took the plea, all parties knew that his extradition would be sought. Under these circumstances -- so different from those in Galanis -- this court declines to hold that a decision not to prosecute on certain charges is the functional equivalent of a prosecution on those charges for purposes of a double jeopardy claim. See United States v. Fontanez, 869 F.2d 180, 182 (2d Cir. 1989) (defendant not placed in jeopardy by counts dismissed before trial).
Moreover, a question does exist as to whether Montiel could be prosecuted in the United States pursuant to § 2251(a) for conduct in which he engaged in Mexico. As a rule, "unless a contrary intent appears, federal statutes apply only within the territorial jurisdiction of the United States." E.g., United States v. Cotroni, 527 F.2d 708, 711 (2d Cir. 1975), cert. denied, 426 U.S. 906 (1976). The Second Circuit recently reaffirmed this principle in refusing to give extraterritorial effect to the National Firearms Act. United States v. Javino, 960 F.2d 1137, 1143 (2d Cir. 1992). Nothing in § 2251 explicitly reflects Congress's intent to provide for extraterritorial application. Nevertheless, the Ninth Circuit, in United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir.), cert. denied, 111 S. Ct. 80 (1990), did infer such intent from the otherwise "comprehensive statutory scheme to eradicate sexual exploitation of children." The exercise of jurisdiction in that case comported with international law because Thomas was a United States citizen. "Nationality" is, of course, one of five generally recognized principles of international criminal jurisdiction. See In re Marc Rich & Co., 707 F.2d 663, 666 (2d Cir.) ("territorial," "protective," "universality," and "passive" being the other four), cert. denied, 463 U.S. 1215 (1983). Since Montiel is not a citizen, but only a resident alien, the nationality principle would not here apply. The propriety of exercising "protective" jurisdiction presents a closer question. Such jurisdiction permits a sovereign to enact "a rule of law attaching legal consequences to conduct outside its territory that threatens . . . . the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems." Id. (quoting Restatement (Second) of Foreign Relations Law § 33 (1963)).
Even assuming jurisdiction over a § 2251(a) charge, the fatal flaw in Montiel's argument is that such a prosecution would not pertain to the conduct for which Mexico seeks his extradition. At most, it would permit the United States to prosecute him for the sexually explicit conduct in which he may have persuaded the child to engage "for the purpose of producing any visual depiction of such conduct." 18 U.S.C. § 2251(a) (emphasis added). Since the only sexually explicit conduct depicted in the photographs at issue is the lascivious display of the child's genitals, Montiel could conceivably be prosecuted for persuading the child to assume a pose that permitted him to take such a photograph. This would still leave unprosecuted the sexual acts he performed on the child, conduct which is not depicted in any photograph, and for which it is extremely doubtful the United States has jurisdiction.
In Sindona, the court cautioned against interpreting treaty double jeopardy provisions in such a way as to leave unpunishable substantial elements of a defendant's criminal conduct. Sindona v. Grant, 619 F.2d at 179. Indeed, it was this very concern that ultimately prompted rejection of Sindona's double jeopardy claim. Here too, the court declines to read Article 6 so broadly as to preclude Montiel from ever having to answer charges in Mexico of having sexually molested a child while in that country.
The conduct for which Mexico seeks Montiel's extradition being distinct from the conduct for which he has been prosecuted here in the United States, and all other conditions for extradition being conceded, this court hereby certifies to the Secretary of State that David Montiel Garcia is extraditable to. Mexico to answer charges of violating Articles 234 and 179 of the Mexican Penal Law.
Dated: Brooklyn, New York
July 30, 1992
UNITED STATES DISTRICT JUDGE