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United States District Court, Southern District of New York

July 23, 2003


The opinion of the court was delivered by: Shira Scheindlin, District Judge


In December 1999, Carlos Gonzalez was charged in a fourteen count indictment and was subsequently extradited from Colombia. Gonzalez now moves to dismiss various counts of the indictment on the grounds that certain charges subject him to life imprisonment, contrary to the extradition agreement between Colombia and the United States, and in violation of the "doctrine of specialty."*fn1 Oral argument was held on July 10, 2003, at which time I denied Gonzalez's motion in its entirety, but expressed a willingness to reconsider the substance of the motion [ Page 2]

at sentencing, if Gonzalez is convicted. I write now to more fully explain the reasons for that decision.


The following facts, taken from the parties' briefs, are wholly undisputed.

A. The Restrepo Organization

Between 1996 and 1999, Gonzalez was allegedly a member of a criminal organization led by Alex Restrepo that was responsible for a chain of approximately 50 armed robberies throughout the New York City metropolitan region. Among the crimes that Gonzalez is charged with are: the February 1996 armed robbery and attempted murder of two jewelers near the Hilton Hotel in midtown Manhattan; the February 1997 armed robbery of a Bravo Supermarket employee in Jackson Heights; the May 1999 robbery of a Kay Jewelers factory store in Union Township, New Jersey; and the August 27, 1999, robbery of the American Sirloin Meat Company in the Bronx, during which Restrepo shot and killed one of the meat company's employees, a retired New York City Police Department detective. On October 26, 1999, a Southern District grand jury returned a one count indictment against Gonzalez and various other members of the Restrepo organization, charging a violation of 18 U.S.C. § 1951 (the Hobbs Act). A fourteen count superseding indictment was returned on [ Page 3]

December 28, 1999.*fn2

B. The Arrest and Extradition of Gonzalez

On March 13, 2002, Gonzalez was arrested in Colombia pursuant to a provisional arrest warrant and detained there pending extradition to the United States. In May 2002, the United States government (via the Department of Justice's Office of International Affairs) formally requested the extradition of Gonzalez. See 5/10/02 Diplomatic Note No. 575, Ex. A to the 4/29/03 Affidavit of Roger L. Stavis ("Stavis Aff."), counsel to Gonzalez. Although the United States and Colombia have no extradition treaty, the request was made pursuant to a December 1997 Colombian constitutional amendment allowing extradition to the United States.

By an opinion of the Colombian Supreme Court dated September 24, 2002, and a resolution of the Colombian government passing Articles of Extradition dated October 18, 2002, Colombia granted extradition of Gonzalez to the United States on some, but [ Page 4]

not all, of the charges filed in the superseding indictment.*fn3 In particular, the resolution stated:

"[A] person shall only be turned over in extradition to a requesting State . . . on the condition that the extradited individual is not subjected to forcible disappearance, torture, cruel, inhuman or degrading treatment or punishment, nor to the penalties of deportation, life imprisonment, [or] asset forfeiture, as provided in articles 11, 12 and 34 of the Federal Constitution." (This is of particular importance).
Therefore, the turning over of [Gonzalez] shall so be ordered, on the condition that the requesting country agree to the specific conditions mentioned above.
ARTICLE FOUR: To order the turning over of a Colombian citizen, [Gonzalez], on the condition that the requesting country comply with the conditions included in subsection 2 of article 512 (formerly article 550) of the Criminal Procedure Code, having previously advised it of the ruling of the Constitutional Court in its decision C-1106 of August 24, 2000, [to wit, that Gonzalez shall not be subject to life imprisonment].
10/18/02 Articles of Extradition (emphasis added) (quoting 8/24/00 Opinion C-11106*fn4 of the Colombian Constitutional Court, [ Page 5]

interpreting former article 550 of the Colombian Criminal Procedure Code) at 10, 12, Ex. C to the Stavis Aff.

Shortly after Colombia passed these Articles of Extradition, on October 29, 2002, I sentenced Alex Restrepo to life imprisonment. See 10/29/02 Sentencing Transcript, United States v. Restrepo, 99 Cr. 1113 (S.D.N.Y.) ("Restrepo Tr."). Restrepo was indited for the same crimes as Gonzalez, and had previously been extradited from Colombia pursuant to nearly identical Articles of Extradition.

Shortly thereafter, on November 19, 2002, the Colombian Ministry of Foreign Relations forwarded Gonzalez's Articles of Extradition to the United States and formally requested that the United States provide assurances that Gonzalez would not be subject to a sentence of life imprisonment if convicted. See 11/19/02 Letter from Colombian Ministry of Foreign Affairs to United States Embassy, Ex. D to the Stavis Aff. In response, the United States issued a diplomatic note:

After due consideration, the Government of the United States assures the Government of Colombia that, should [Gonzalez] be convicted of the offenses for which extradition has been granted, the United States executive authority, with the agreement of the attorney for the accused, will not seek a penalty of life imprisonment at the sentencing phase of the judicial proceeding in this case. The Government of the United States also assures the Government of Colombia that, should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against [Gonzalez], the United States executive authority will take appropriate action to formally. [ Page 6]
request that the court reduce such sentence to a term of years.
12/30/02 Diplomatic Note No. 1967 (the "Diplomatic Note") (emphasis added), Ex. E to the Stavis Aff. (An identical diplomatic note had been sent months earlier in response to Restrepo's Articles of Extradition.) On February 5, 2003, Gonzalez was released into the custody of the United States Marshals Service for transport to the United States.

Gonzalez now moves to dismiss those counts of the superseding indictment that, assuming he is convicted, subject him to mandatory sentences of life imprisonment. In particular, Gonzalez is charged with one count each of murder and felony murder in aid of racketeering activity, which is punishable "by death or life imprisonment." 18 U.S.C. § 1959(a)(1). In addition, he is charged with one count each of RICO, 18 U.S.C. § 1962(c), and RICO conspiracy, 18 U.S.C. § 1962(d), which require a sentence of life imprisonment "if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment." 18 U.S.C. § 1963(a). Because racketeering acts five and six (respectively, murder and narcotics conspiracy) carry a maximum sentence of life imprisonment, a conviction on either of the RICO counts will also necessarily result in a sentence of life imprisonment.*fn5 Thus, Gonzalez moves to dismiss [ Page 7]

counts 13 and 14 of the indictment (charging murder and felony murder), and to strike racketeering acts five and six (charging murder and narcotics conspiracy) from the RICO counts in the superseding indictment.


"It is well established that, under the international principle of specialty, an extradited defendant may not be tried for a crime not enumerated in the applicable extradition treaty." United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002).*fn6 See generally United States v. Rauscher, 119 U.S. 407, 419-420, 424 (1886) (first establishing doctrine of specialty). See also Restatement (Third) of Foreign Relations § 477 (1987) ("Under most international agreements, state laws, and state practice: (1) A person who has been extradited to another state will not, unless the requested state consents, (a) be tried by the requesting state for an offense other than one for which he was extradited; or (b) be given punishment more severe than was provided by the applicable law of the requesting state at the [ Page 8]

time of the request for extradition.").*fn7 Based on principles of international comity, the doctrine of specialty requires the United States to guarantee that it will honor limitations placed on prosecutions of persons extradited to the United States so that it may protect its own citizens in prosecutions abroad. See United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (citing United States v. Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988)).

"We look to the language of the applicable treaty to determine the protection an extradited person is afforded under the doctrine of specialty." Andonian, 29 F.3d at 1435. In turn, whether an extradition treaty permits prosecution for a certain crime or imposes a certain condition specified in the extradition request "is a matter for the extraditing country to determine." Campbell, 300 F.3d at 209. See also United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986)("the protection [afforded by the doctrine of specialty] exists only to the extent that the surrendering country wishes"). "In determining whether the prosecution of [a defendant is] a breach of the extradition treaty, it is essential that we determine whether [the surrendering nation] would regard the prosecution as an affront to [ Page 9]

its sovereignty. . . ." United States v. Diwan, 864 F.2d 715, 721 (11th Cir. 1989).

Finally, in reviewing extradition agreements for potential violations, courts may consider whether the extraditing country has objected or would object to what actually took place after extradition. See, e.g., Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d Cir. 1972) (noting "the absence of any affirmative protest from [the surrendering country]" in finding no violation of the doctrine of specialty). Where no record of the extraditing nation's view exists or if the record is unclear, courts should look to the extradition decrees and any diplomatic correspondence in order to assess whether the extraditing country could have anticipated the result about which the defendant complains. See United States v. Paroutian, 299 F.2d 486, 491 (2d Cir. 1962) (noting that appropriate consideration under doctrine of specialty is whether extraditing country would consider acts for which defendant was prosecuted as independent from those for which he was extradited). [ Page 10]


Gonzalez argues that the counts of the superseding indictment (and the racketeering acts charged in the RICO counts) that subject him to life imprisonment must be dismissed because the Colombian government only extradited him on the condition that he not be subject to life imprisonment. Because Colombia would not view either trying Gonzalez on these charges or sentencing him to life imprisonment "as an affront to its sovereignty," Diwan, 864 F.2d at 721, his motion is denied. The plain language of the diplomatic correspondence indicates both that Colombia (a) intended Gonzalez to be tried on these charges, and (b) was aware that these offenses were punishable by life imprisonment and that the Court might impose that sentence.

There can be no question that Colombia explicitly extradited Gonzalez to stand trial on the charges he now seeks to dismiss. In its opinion, the Colombian court "rule[d] in favor [ Page 11]

of the extradition of [Gonzalez] . . . for counts ONE (Racketeering Violations), TWO (Racketeering Conspiracy), ELEVEN (Robbery), TWELVE (Murder), and THIRTEEN (Felony Murder). . . ." Opinion at 49. Thus, dismissal of those charges would be the greater affront to Colombia's sovereignty.

There is also no question that Colombia was aware at the time that it extradited Gonzalez that the crimes for which he was extradited were punishable by life imprisonment. See Opinion at 11-12 ("the maximum penalty for a violation of Title 18, United States Code, Section 1962 is currently life imprisonment . . . [t]he maximum penalty for a violation of Title 18, United States Code, Section 1959(a)(1) is currently death or life imprisonment").

The only remotely close question is whether Colombia was aware that, notwithstanding any assurances made by the Executive, the Court was free to impose that maximum penalty But even this question is not seriously in dispute.

First, courts that have considered the doctrine of specialty historically read extradition agreements and accompanying diplomatic notes very literally, applying canons of statutory and treaty construction. See, e.g., Campbell, 300 F.3d at 211-12. That being so, the "assurances" made in the Diplomatic Note make plain that the Executive only agreed that it would not "seek a penalty of life imprisonment at the sentencing [ Page 12]

phase of the judicial proceeding in this case." Diplomatic Note (emphasis added). Moreover, the Diplomatic Note explicitly recognizes the possibility that the Court (i.e., the "judicial authority") could "nevertheless impose a sentence of life imprisonment," in which case the Executive would "request" — not demand, require, insist or impose — a reduction in that sentence. Id. Thus, the plain language of the Diplomatic Note makes no guarantees that a sentence of life imprisonment will not be imposed.

Second, the equivocal nature of the government's "assurance" is highlighted in contrast to the assurance made regarding the death penalty. In the case of the death penalty, the United States promised that "the death penalty will not be sought or imposed in this case." Id. (emphasis added). Thus, any concern that Colombian officials might not have appreciated nuances in the English language, or that such differences were lost in translation, should be dispelled. There can be no question that the assurance made with respect to life imprisonment is not the same ironclad guarantee that was made with respect to the death penalty.

Third, Alex Restrepo, a co-defendant previously extradited from Colombia, had been sentenced to life imprisonment on substantially the same charges with the identical assurance just months prior to Gonzalez's extradition. See Restrepo Tr. [ Page 13]

The Colombian government was fully aware of the Restrepo sentencing, but nevertheless chose to extradite Gonzalez. See 7/10/03 Oral Argument Transcript ("7/10/03 Tr.") at 9-10(Statement of AUSA Helen Cantwell).*fn9

Fourth, in connection with the Restrepo sentencing, AUSA Cantwell stated that she "spoke[] with representatives of the Office of International Affairs, who are responsible for the Department of Justice's negotiations with Colombia through the State Department. . . . In their view, it has been made clear to the Colombians that this particular Diplomatic Note does not bind the judiciary. . . . [There is] no reason to believe that based on this Diplomatic Note there is any type of a double-cross going on or that with respect to this extradition Colombia was fooled into thinking he couldn't get a life sentence." Restrepo Tr. at 19-20. Presumably the same still holds true.*fn10 [ Page 14]

In the face of all this, Colombia still extradited Gonzalez. The only reasonable conclusion is that it recognized, and accepted, the possibility that Gonzalez would receive a life sentence. See Paroutian, 299 F.2d at 491 (holding that courts should look to the extradition decrees and any diplomatic correspondence in order to assess whether the extraditing country could have anticipated the result about which the defendant complains.).

The only evidence Gonzalez marshals on his behalf, other than the admittedly strong language used in the Articles of Extradition, is a letter from Jamie Buenhora Febres-Cordero, the Colombian Consul General, dated March 27, 2003, in response to an inquiry from Gonzalez's counsel explaining the certainty that Gonzalez would receive a life imprisonment. See Stavis Aff. ¶ 16. Mr. Febres-Cordero's letter simply forwarded a highlighted copy of the Diplomatic Note "which contains the position of the Colombian Government in regards to Mr. [Gonzalez's] extradition." See Ex. F to the Stavis Aff.*fn11 This can hardly be called an [ Page 15]

objection or "affirmative protest." Fiocconi, 462 F.2d at 481. To the contrary, upon being informed that Gonzalez would necessarily receive a sentence of life imprisonment, the Colombian government merely resent the Diplomatic Note, which strongly indicates that it recognizes the Court's authority to impose that sentence. Colombia was given a clear opportunity to object to the imposition of a sentence of life imprisonment, and declined. That being so, the only reasonable conclusion is that Colombia recognized, and accepted, the possibility that Gonzalez would receive a life sentence.


The charges in the superseding indictment that subject Gonzalez to a term of life imprisonment if convicted will not be dismissed; to do so would permit Gonzalez to evade charges on which he was both indicted and extradited. Moreover, because Colombia was plainly aware of the Court's authority to sentence Gonzalez to life and the real possibility that it would happen, there is no need to worry that such a sentence would be an "affront to its sovereignty." Diwan, 864 F.2d at 721. Nonetheless, I recognize my ability to depart from a term of life [ Page 16]

imprisonment in favor of a term of years, see Campbell, 300 F.3d at 206, and will consider the proper sentence if it becomes necessary.*fn12


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