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U.S. v. GONZALEZ

July 23, 2003

UNITED STATES OF AMERICA AGAINST CARLOS GONZALEZ, DEFENDANT


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

OPINION AND ORDER

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.

I. BACKGROUND

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 ...

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