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UNITED STATES v. MEDINA

November 18, 1997

UNITED STATES OF AMERICA - v - FRANCISCO MEDINA, a/k/a "Freddy," a/k/a "Miguel Perez," a/k/a "Raul Polanco," Defendant.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Defendant Francisco Medina has moved to dismiss certain counts of the Indictment filed against him, arguing that the crimes charged in those counts are not extraditable offenses under the Treaty of Extradition between the Dominican Republic and the United States. For the following reasons, the motion is denied.

 I. Factual Background

 In February 1996, Francisco Medina was charged in a 58-count multi-defendant Indictment. Counts one and two charge him with violations of the RICO statute, 18 U.S.C. § 1962; counts three through 27 and 33 charge Medina with violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959; count 37 charges him with conspiring to violate the narcotics laws in violation of 21 U.S.C. § 841; count 39 charges him with participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848; and counts 40 through 53 charge Medina with carrying and using a firearm during a crime of violence and during a narcotics trafficking crime in violation of 18 U.S.C. § 924(c). *fn1"

 It appears that at or about the time the Indictment was filed, Francisco Medina was residing in his country of origin, the Dominican Republic. On February 26, 1997, the United States Embassy forwarded a Diplomatic Note to the Government of the Dominican Republic requesting the extradition of Medina pursuant to an extradition Treaty ratified by both countries in 1910. See Extradition Treaty, August 2, 1910, United States and Dominican Republic, 36 Stat. 2468; T.S. No. 550 ("Extradition Treaty"). The Note requested Medina's extradition "to answer charges of . . . conspiracy to possess with intent to distribute heroin; and organizing a criminal enterprise (including murder, drug distribution, and conspiracy)." See Exhibit C at p. 1 of Defense Exhibits on Extradition ("Ex.").

 In May 1997, the United States submitted a formal request to the Government of the Dominican Republic for the extradition of Francisco Medina. Among the documents included in the United States extradition request was a certified copy of the 58-count Indictment. See Affidavit of Assistant U.S. Attorney Bruce G. Ohr in Support of Request for Extradition of Francisco Medina, dated May 6, 1997, ("Ohr Aff."). After the United States Embassy sent a second Diplomatic Note, the President of the Dominican Republic issued a decree authorizing the extradition on August 12, 1997 ("Extradition Decree"). See Defense Ex. D. *fn2" That same day, the Government of the Dominican Republic surrendered Medina to United States custody.

 II. Discussion

 The defendant argues that all but one of the counts in the Indictment should be dismissed because the crimes charged are not extraditable offenses under the Extradition Treaty. *fn3" The effective Extradition Treaty enumerates those crimes which constitute extraditable offenses. Medina contends that extradition can only be effected for those offenses specifically listed in the Treaty. The crimes enumerated in the Indictment are not listed in the Extradition Treaty; therefore, Medina argues they are not extraditable offenses. Defendant's syllogism fails to consider either how nations interpret extradition treaties or the fundamental concerns addressed by international extradition law. As a result, Medina's challenge to his extradition is without merit.

 A. Extradition Principles

 Medina's challenge implicates three doctrines of international law. While these concepts are closely allied, they are not interchangeable. First, where extradition is sought pursuant to an extradition treaty, the offense must be one made extraditable by the applicable treaty: Namely, the person subject to extradition--the relator--must be charged with an "extraditable offense." See Spatola v. United States, 925 F.2d 615, 619 (2d. Cir. 1991); Melia v. United States, 667 F.2d 300, 304 (2d Cir. 1981). *fn4" A nation determines whether an offense is extraditable in one of two ways: (1) it can require that an offense charged be identical to an offense listed in an extradition treaty; or (2) it can require that the acts supporting the charged offense could also sustain a charge under the laws of the surrendering nation corresponding to an offense listed in the treaty. The second method does not require that the charged offense be identical to the offense listed in the treaty. See Bassiouni at 329; see also Spatola, 925 F.2d at 619.

 United States courts have addressed this issue in situations where the United States was the surrendering nation. Several courts applied the second method in deciding whether or not a crime charged constituted an extraditable offense. See Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986) (war crimes charge was an extraditable offense); Melia, 667 F.2d at 304 (procuring murder was an extraditable offense); Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973) (conspiracy to commit a felony, deceit under aggravating circumstances, theft, and conspiracy to commit a felony, were extraditable offenses); Matus, 784 F. Supp. at 1056 (VAT fraud was an extraditable offense). In Melia, 667 F.2d at 304, the court stated that "the Treaty does not specifically list procuring [murder] as an extraditable offense. We hold, nevertheless, that the Treaty does cover the offense." Additionally, the court in Ferrandina, 478 F.2d at 906-907, aptly stated that "Shapiro calls upon us to determine whether the acts charged constitute criminal offenses under the laws of New York. Such a task of ascertaining and, if necessary, interpreting local law is particularly suited to the capacities of the judicial branch."

 A second principle maintains that the extraditable offense must be a serious crime punishable under the criminal laws of both the surrendering and the requesting state. This concept has been termed "dual criminality". See Lo Duca v. United States, 93 F.3d 1100, 1111 (2d Cir. 1996). Dual criminality does not require that the laws of the surrendering state and the requesting states be identical. Rather, dual criminality is satisfied when the conduct of the accused falls within the proscription of both the requesting and the surrendering state's laws. See id. at 1112. "It is enough to satisfy the dual criminality requirement if the particular act charged is criminal in both jurisdictions." Id. (citing Collins v. Loisel, 259 U.S. 309, 311-12, 66 L. Ed. 956, 42 S. Ct. 469 (1922)) (quotations omitted).

 A third concept, referred to as "specialty," "requires that an extradited defendant be tried for the crimes on which extradition was granted, and none other." United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995); Fiocconi v. Attorney General of the United States, 462 F.2d 475, 480 (2d Cir. 1972). The principle of specialty rests on concerns of international comity. *fn5" It reflects an agreement between states that persons surrendered should not be subjected to indiscriminate prosecution by the receiving state. In order to effect this agreement, the specialty doctrine limits the requesting state's power to prosecute a relator. See United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995). *fn6" A relator cannot be tried on counts for which extradition was not granted. See United States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993) (defendant's conviction for using a communication facility to facilitate a drug conspiracy was reversed because Pakistan did not grant extradition for this offense). Unlike the previous two concepts, specialty ...


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