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United States v. Biba

United States District Court, E.D. New York

March 6, 2017

UNITED STATES OF AMERICA,
v.
LLESH BIBA, Defendant.

          MEMORANDUM AND ORDER

          DORA L. IRIZARRY Chief Judge.

         Before the Court is Llesh Biba's (“Defendant”) Motion to Dismiss Counts Three and Six of the Superseding Indictment, which are the charges related to possession and brandishing of a firearm in furtherance of crimes of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii). (Def. Mot. to Dismiss (“Second Motion to Dismiss” or “2nd Mot. to Dismiss”), Dkt. Entry No. 23; Superseding Indictment, Dkt. Entry No. 21.) On August 25, 2016, Defendant moved to dismiss Count Three and Count Six of the initial indictment, which purported to charge the same offenses. (Dkt. Entry No. 14.) On November 7, 2016, the Court granted Defendant's first motion to dismiss the indictment to the extent that the charges for brandishing a firearm pursuant 18 U.S.C. § 924(c)(1)(A)(ii) alleged in Counts Three and Six were dismissed, without prejudice, because they were not properly stated in the initial indictment. United States v. Biba, ___ F.Supp.3d.___ 2016 WL 6583635 (E.D.N.Y. Nov. 7, 2016), Dkt. Entry No. 20 (the “November 7 Opinion”). Thereafter, the government obtained a superseding indictment (the “Superseding Indictment”) that is identical to the initial indictment except that it now adds the phrase “which firearm was brandished” at the end of Counts Three and Six. (See Superseding Indictment.)

         On December 14, 2016, Defendant filed the Second Motion to Dismiss on the grounds that (i) the Superseding Indictment violates the doctrine of specialty because it charges Defendant with an offense that contains different statutory elements than those set forth in the government's extradition request to Canada, and (ii) the Superseding Indictment was brought after the applicable statute of limitations period had expired as to all counts. (2nd Mot. to Dismiss.) The government opposes the motion. (Gov. Opp. to 2nd Mot. to Dismiss, Dkt. Entry No. 26.)

         DISCUSSION[1]

         A. The Superseding Indictment Does Not Violate the Rule of Specialty.

         Defendant contends that the Superseding Indictment violates the United States' extradition treaty with Canada, which provides that “[a] person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted, ” unless “[t]he requested state has consented to his detention, trial, punishment for an offense other than that for which extradition was granted or to his extradition to a third State . . . .” Treaty Signed at Washington Dec. 3, 1971;, T.I.A.S. No. 8237 (Mar. 22, 1976) (“U.S.-Canada Treaty”), Art. 12(1).

         The threshold question for the Court, therefore, is whether the charge of brandishing a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), which is properly set forth in the Superseding Indictment, actually constitutes a different offense from mere possession, for purposes of the U.S.-Canada Treaty. Defendant contends it does because the extradition order was premised on the simple firearm possession charges, and it subsequently cannot be modified unilaterally by the federal government to permit defendant's prosecution for the brandishing offenses. (Def. Mot. at 7.)

         However, in making this argument, Defendant conflates the constitutional protections he enjoys under the Fifth and Sixth Amendments, which provided the basis for the Court's dismissal of Counts Three and Six in the November 7 Opinion, [2] with the logic underlying the rule of specialty. As the Second Circuit Court of Appeals recognized long ago, the basis for the rule of specialty set forth in United States v. Rauscher, 119 U.S. 407 (1886) is not a concern about protecting the rights of a defendant, but rather comity:

Accepting the proposition that these principles would forbid trial of Paroutian for murder or some other offense totally unrelated to the traffic in narcotics, we nevertheless believe that Paroutian was tried in conformity with the law governing extradition. The basis of this rule, discussed in United States v. Rauscher . . . is comity. It is designed to protect the extraditing government against abuse of its discretionary act of extradition. So the test whether trial is for a ‘separate offense' should be not some technical refinement of local law, but whether the extraditing country would consider the offense actually tried ‘separate.'

United States v. Paroutian, 299 F.2d 486, 490-91 (2d Cir. 1962). In Paroutian, the court ultimately found no violation where a defendant was extradited from Lebanon pursuant to an indictment issued in the Southern District of New York for narcotics trafficking, but ultimately was tried in the Eastern District of New York for two separate counts (receipt and concealment of heroin) not covered by the original indictment. Id. at 490. The Court stated it did not believe “that the Lebanese, fully apprised of the facts as they were, would consider that [the defendant] was tried for anything else but the offense for which he was extradited, namely, trafficking in narcotics.” Id. at 491.

         Since Paroutian, other courts have found that the government may “present additional facts or amplified allegations, ‘so long as [they are] . . . directed to the charge contained in the request for extradition.'” United States v. Masefield, 2005 WL 236443, at *2 (S.D.N.Y. Feb. 1, 2005) (quoting Restatement (Third) of Foreign Relations Law of the United States § 477, comment c (2005)) (emphasis and alterations added in Masefield); see United States v. Levy, 25 F.3d 146, 159 (2d Cir. 1994) (finding that, even if the defendant “was extradited on the basis of the one narcotics conspiracy charge in his initial arrest warrant, the Rule of Specialty would still not have been violated by his subsequent trial on the five drug counts in his indictment” because the they would not constitute separate offenses); United States v. Rossi, 545 F.2d 814 (2d Cir. 1976) (per curiam) (finding no violation of the rule of specialty where extradition charge covered 1969-72 and indictment covered 1965-73).

         Here, as in Paroutian, the foreign government appears to have been made fully aware of the factual allegations underlying the federal charges he ultimately faced. As the government notes in its opposition brief, the “Record of the Case for Prosecution” (the “Record, ” Gov. Opp. to 2ndMot. to Dismiss Ex. C, Dkt. Entry No. 26) that was submitted to Canada in support of the extradition request included facts indicating that a firearm was brandished in the commission of the acts constituting Counts Three and Six. With respect to Count Three, the Record states that Defendant's co-conspirator Shelton Willis admitted to a cooperating witness that he had “displayed a handgun to” a woman who had been restrained during the commission of the robbery. (Id.) With respect to Count Six, the Record states that a female victim would testify that she had met her landlord outside of her apartment “where the men pistolwhipped him and then her when she tried to intervene.” (Id.) Both of these descriptions meet the statutory definition of “brandish[ing]” a firearm. See 18 U.S.C. § 924(c)(4) (defining “brandish” with respect to a firearm as “display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person”).

         As explained in the November 7 Opinion, there is no doubt the original indictment was deficient for failing to set forth a necessary element of the offense it purported to charge. However, after the Superseding Indictment remedied the constitutional violation, the issue here is only whether the added brandishing charge in the Superseding Indictment is considered a “separate offense” from the possession charge such that proceeding on the indictment would offend international comity. See Paroutian, 299 F.2d at 490-91. Based on the precedent set forth above, the clear answer is no.

         Because the Court finds that the brandishing charge is not an offense separate from mere possession, the Court necessarily rejects Defendant's argument that the U.S.-Canada Treaty or the government's own policies required the government to seek Canada's affirmative waiver of the rule of specialty from Canada.[3] However, should the government become aware of any objection from Canada regarding the government's prosecution of Defendant, the government immediately must inform the Court in writing, as such an objection may present a basis for dismissing the brandishing charges from Counts Three and Six of the Superseding Indictment. See United States v. Garavito-Garcia, 827 F.3d 242, 247 (2d Cir. 2016) (“Here, because the Government of Colombia has not first made an official protest, Garavito-Garcia lacks standing to invoke the extradition treaty as a basis for the dismissal of the indictment.”) (quoting United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015) (internal punctuation omitted); cf. Fiocconi v. Attorney Gen. of U.S., 462 F.2d 475, 481 ...


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