The opinion of the court was delivered by: JED RAKOFF, District Judge
This Opinion and Order will dispose of all remaining matters in
this case.
By way of background, in October 2002 defendants Juan Cuevas
("Juan") and Jose Cuevas ("Jose") pleaded guilty to a three-count
indictment charging them with conspiracy to distribute cocaine,
conspiracy to launder money, and substantive money laundering.
Juan was sentenced to 390 months' imprisonment, and Jose was
sentenced to 240 months' imprisonment. Juan, on appeal from his
sentence, argued that his extradition from the Dominican Republic
was conditioned on his not being sentenced to more than 30 years'
imprisonment (i.e. 360 months). The Court of Appeals remanded
for further factual findings, concluding that "there is
insufficient evidence in the record to discern whether the United
States and the Dominican Republic reached an agreement as to the
sentence that could be imposed upon Cuevas." United States v.
Cuevas, 112 Fed.Appx. 806 (2d Cir. 2004). Meanwhile, Jose moved,
pursuant to 28 U.S.C. § 2255, to vacate his conviction, primarily
on the ground that if he had known of the alleged 30-year limit,
he would not have pleaded guilty. Subsequent to the remand of Juan's appeal and the filing of
Jose's motion, the Court conducted several hearings and received
substantial written submissions from the parties. Based on these
hearings and submissions, the Court makes the following findings:
On August 13, 1999, the U.S. Embassy in the Dominican Republic
requested, by diplomatic note number 116, that the Dominican
Republic arrest Juan and Jose (as well as one Pablo Sena) in
anticipation of their extradition. See Declaration of Mary
Ellen Warlow, Director, Office of International Affairs,
Department of Justice ("Warlow Decl."), dated July 8, 2005, at ¶
3. On November 19, 1999, by diplomatic note number 165, the
United States transmitted to the Dominican Republic the formal
documentation in support of the extradition request, including an
affidavit of David C. Esseks, Assistant U.S. Attorney, S.D.N.Y,
which, inter alia, disclosed the potential penalties under
U.S. law for the offenses charged. See Warlow Decl. at ¶ 4. The
extradition request was made pursuant to a bilateral extradition
treaty, see Convention for the Mutual Extradition of Fugitives
from Justice, U.S.-Dom. Rep. ("Extradition Treaty"), June 19,
1909, 36 Stat. 2468, and pursuant to the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances ("U.N. Convention"), art. 6, Dec. 19,
1988, 28 I.L.M. 493.*fn1 The Government of the Dominican Republic, by diplomatic note
DEI-99-1349, dated November 29, 1999, acknowledged receipt of the
extradition request. See Warlow Decl. at ¶ 5. After
considerable delay, Juan and Jose were transferred, on July 6,
2002, to the custody of the United States Marshal and transported
to the United States. See Warlow Decl. at ¶ 6.
Aside from the correspondence detailed above, there was no
further diplomatic communication between the United States and
the Dominican Republic concerning this case. See id. However,
on July 18, 2002, almost two weeks after taking custody of the
defendants, the United States received a copy of an extradition
decree dated July 2, 2002. See id.; Declaration of Linda
Jacobson, Assistant Legal Adviser, Department of State ("Jacobson
Decl."), dated July 11, 2005 at ¶ 6 ("The Embassy has no record
of receiving a Presidential Decree from the Government of the
Dominican Republic prior to or at the time of Juan and Jose
Cuevas' extradition."). That decree stated, in relevant part,
that "it is understood that the above-named [defendants] are
covered by the Provisions of Article 4, Paragraph II of Law
number 489." Dom. Rep. Extradition Decree 495-02, July 2, 2002.
Law number 489, in turn, provides, "In extradition treaties
signed by the Dominican State with other States, when the
extradition of a national is granted, no penalty greater than the
maximum established in this country, which at the moment this law
enters into force is thirty years, shall be imposed." Dom. Rep.
Extradition Law, No. 489, art. 4, para. II (1969), amended by Dom. Rep. Law
No. 278-98 (1998).
Against this factual background, the issue regarding Juan is
whether the extradition decree, which explicitly states its
understanding that Juan is "covered" by Law number 489,
constitutes an agreement between the two governments, and
therefore prohibits this Court from imposing a sentence in excess
of thirty years' imprisonment. See United States v. Baez,
349 F.3d 90 (2d Cir. 2003) ("Based on international comity, the
principle of specialty generally requires a country seeking
extradition to adhere to any limitations placed on prosecution by
the surrendering country.").*fn2 It is clear that the United
States never expressly agreed to the purported condition; indeed,
the United States was not even aware of the purported condition
until after the United States had already taken custody of Juan
and Jose. See Warlow Decl. at ¶¶ 9-10; Jacobson Decl. at ¶ 6.
Prior to the transfer of custody, the two countries exchanged
exactly three diplomatic notes concerning the matter, none of
which addressed the condition set forth in the extradition
decree.
Juan's argument, therefore, reduces to the claim that the
Government somehow agreed to be bound by a condition it only
learned of after taking custody. Nothing in the record, however,
supports such an unlikely assertion, which, on its face, is
contrary to ordinary diplomatic custom. Ordinarily, the protocol
for requesting and approving conditions on extradition is quite formal: the
foreign country formally requests the agreement of the United
States, generally through diplomatic channels, and the United
States affirmatively conveys its agreement, generally through
diplomatic channels. See Warlow Decl. at ¶ 7; Jacobson Decl. at
¶ 5 ("[requests for assurances regarding sentence] are
communicated through diplomatic notes from the foreign ministry
to our embassies prior to a decision by our treaty partner to
extradite a particular fugitive."). Diplomatic custom demands
such formality for good reasons: requiring that conditions of
extradition be clearly established by diplomatic exchange avoids
ambiguity, provides courts with clear evidence of intent, and
establishes unambiguous guidelines for countries engaged in
negotiation.
For example, in United States v. Campbell, 300 F.3d 202 (2d
Cir. 2002), Costa Rica granted extradition subject to certain
enumerated conditions, and, in response, the U.S. Department of
State provided assurances to Costa Rica in a diplomatic note and
secured an order from the district court providing similar
assurances. Id. at 206. Similarly, in United States v. Baez,
349 F.3d at 90, the Columbian government agreed to extradite the
defendant if certain assurances were forthcoming, the United
States provided the requested assurances in two diplomatic notes,
and only then did the Columbian government extradite the
defendant. Id. at 92. In the instant case, however, there was
no such exchange.
One might speculate that the Dominican authorities, upon being
notified that the extradition decree had been signed, transferred Juan and Jose to United States custody without
bothering to inquire whether the United States had received the
extradition decree, let alone agreed to the condition. Or perhaps
they believed the United States was on notice of the provisions
of Law number 489 (though, of course, the United States would not
be bound by that law). But at no time has the Dominican Republic
though fully informed of the sentence imposed on Juan raised
the slightest protest. Indeed, subsequent to remand from the
Second Circuit, this Court afforded repeated opportunities to the
Government of the Dominican Republic to submit papers or appear
in person to express its view on this issue; but, tellingly, it
chose not to. The Dominican Republic's failure to object calls
into question whether it ever intended the language in the decree
to give rise to an agreement, and, in any case, suggests that
affirming the Court's prior sentence will not offend principles
of comity. See Baez, 349 F.3d at 92 ("[t]he extradited
individual . . . can only raise those objections to the
extradition process that the surrendering country might consider
a breach of the extradition treaty.") (internal quotations
omitted); Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d
Cir. 1972). Accordingly, Juan's sentence should remain as
originally imposed.
As for Jose, his motion, as noted, is principally grounded on
his claim that his trial counsel failed to advise him, in advance
of his plea, that the extradition decree from the Dominican
Republic purportedly imposed a maximum penalty of thirty years'
imprisonment, that the Court also failed to so advise him during
his plea colloquy, and that if he had known of this limitation he would not have
pleaded guilty regardless of what sentence might be imposed. But
since, as determined above, there was no such limitation on
either Juan's or Jose's sentence, the argument lacks a factual
predicate.
Jose also argues that he would have raised the issue on direct
appeal but that his trial counsel, Jorge Guttlein, Esq., failed
to perfect that appeal. It is true that Mr. Guttlein, having
filed a notice of appeal on Jose's behalf on March 4, 2003, see
2d Cir. Docket No. 03-1134, 3/4/03, failed to comply with the
Second Circuit's scheduling order of March 17, 2003, see id.,
3/17/03, and that the Court of Appeals therefore dismissed the
appeal, see id., 8/6/03. It appears that Mr. Guttlein was
under the impression that a motion he had filed to be relieved on
appeal had been granted before the scheduling order went into
effect, whereas in fact his motion to be relieved was not granted
until September 19, 2003. Id., 9/19/03. But since the issue
Jose claims he would have raised on appeal is the same issue the
Court has now determined to be without factual foundation, there
is no reasonable probability that, but for counsel's error, the
result of the proceeding would have been different, and
consequently Jose's motion must be denied. See Strickland v.
Washington, 466 U.S. 668, 694 (1984).
Accordingly, Jose's motion is denied, Juan's sentence is
confirmed, and the Clerk of the Court is directed to close this
case in its entirety.