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Extradition law - criminal defendants extradited outside of treaties lack standing to assert rule of specialty - United States v. Valencia-Trujillo.

International law does not impose a duty on nations to extradite criminals, but the United States, along with most other countries, has imposed such an obligation through individually-negotiated bilateral treaties. (1) In an effort to maintain cooperation and good faith between the parties of extradition treaties, courts began recognizing the "rule of specialty," which prohibits the requesting state from prosecuting criminal defendants for charges not contained in the request for extradition. (2) In United States v. Valencia-Trujillo, (3) the U.S. Court of Appeals for the Eleventh Circuit considered whether a criminal defendant extradited from Colombia to the United States could assert the rule of specialty to enforce assurances made by the U.S. government in order to secure extradition. (4) The court held that the defendant lacked standing to assert the rule because he was not extradited pursuant to a treaty. (5)

In 2002, a U.S. grand jury indicted Colombian citizen Joaquin Mario Valencia-Trujillo for running an international, multi-million dollar drug smuggling and money laundering enterprise. (6) The American Embassy sent a diplomatic note to Colombia that requested Valencia-Trujillo's extradition. (7) The note invoked applicable provisions of the Constitution of Colombia, Colombia's Criminal Procedure Code, and principles of international law. (8) Colombia authorized Valencia-Trujillo's extradition for the charges set forth in the indictment, but expressly limited this authorization to acts committed after December 17, 199). (9)

Before trial, Valencia-Trujillo filed a motion to enforce the rule of specialty, requesting that all references to events occurring before December (17), 1997 be excluded from the government's evidence and redacted from the indictment. (10) The court granted the motion in part, redacting the first twenty-six predicate acts of the continuing criminal enterprise charge and taking certain measures to prevent the jury from improperly considering evidence pre- December 1997. (11) The district court refused, however, to remove allegations of pre-December 1997 conduct regarding the conspiracy charges, reasoning that the duration of a conspiracy is not an essential element of the crime, unlike a continuing criminal enterprise charge. (12) The jury convicted Valencia-Trujillo on all four counts of the indictment and sentenced him to (480) months imprisonment. (13) Valencia-Trujillo appealed his conviction, alleging that the district court violated the rule of specialty by prosecuting him for offenses beyond those authorized by Colombia in his extradition documents. (14) The Eleventh Circuit held that Valencia-Trujillo did not have standing to assert the rule of specialty because he was not extradited under the U.S.-Colombia Treaty. (15)

If an extradition treaty exists between the United States and a surrendering state, a criminal defendant is customarily extradited in accordance with the conditions set forth in the treaty. (16) If a treaty is unavailable or impractical, however, the United States has used alternate methods of informal rendition to secure the surrender of foreign fugitives. (17) Additionally, nations may extradite outside of an existing treaty by expressly waiving the treaty's formalities. (18) Courts consider the method used to bring the criminal defendant to the United States in determining whether the individual has standing to assert the rule of specialty. (19)

The rule of specialty, addressed by the U.S. Supreme Court for the first time in United States v. Rauscher, (20) provides that a criminal defendant extradited from one country to another may only be tried for the offenses for which he was surrendered. (21) The same day that it handed down Rauscher, the Supreme Court held, in Ker v. Illinois, (22) that criminal defendants brought to the United States outside of formal extradition proceedings were not entitled to the protections of an existing extradition treaty. (23) Based on these two early Supreme Court cases, courts have agreed that the rule of specialty applies to extraditions pursuant to treaties, but its application to extraditions outside of, or in the absence of, existing treaties has varied among the circuit courts. (24) To reconcile the holdings of Rauscher and Ker, the circuit courts have carved out a number of exceptions for when the rule of specialty will not apply despite the existence of a valid extradition treaty. (25) These exceptions include situations where the defendant was brought to the United States by abduction, where the defendant was deported under immigration laws, and where the defendant or surrendering country executed a waiver of treaty rights. (26)

At the other end of the spectrum, a number of courts have held or recognized that the rule of specialty applies to extraditions where no treaty is available or invoked. (27) The Eleventh Circuit, however, had not specifically determined whether the rule of specialty applies to a defendant extradited outside a treaty. (28) In two related cases involving a defendant extradited in the absence of a valid treaty with Colombia, the court applied the rule of specialty and noted that the principle of specialty is based on international comity. (29) In these cases, however, the court assumed standing. (30)

In United States v. Valencia-Trujillo, the Eleventh Circuit held that the rule of specialty applies only to extraditions pursuant to a treaty. (31) The court reasoned that the Supreme Court conceived the rule of specialty in this context in Rauscher, where the Court held that all extradition treaties contain an agreement, explicit or implied, that the extradited defendant will not be prosecuted for any offense other than the one for which he was surrendered. (32) The Eleventh Circuit also relied on its holding in Puentes, which likened an extradition treaty to a contract, with the rule of specialty as a provision of that contract, granting certain rights to extradited defendants derived from the surrendering nation. (33) Only treaties, and not executive agreements, become the "law of the land" under the U.S. Constitution and thus, the Eleventh Circuit reasoned, courts may only enforce extradition treaties. (34)

The court concluded that Valencia-Trujillo lacked standing to assert the rule of specialty because he had not been extradited under the U.S.-Colombia treaty of (1979). (35) Noting the similarities between the procedures and laws invoked in Valencia-Trujillo's extradition and those contained in the (1979) treaty, the court ultimately relied on the fact that the extradition request "conspicuously" lacked any reference to the treaty. (36) The court distinguished this case from the Gallo-Chamorro decisions, where the court merely assumed, without establishing as fact, that the defendant was extradited from Colombia pursuant to a treaty. (37) The court held that Valencia-Trujillo could not rely on the court's assumption in Gallo-Chamorro to establish that he was extradited under the treaty. (38) The Eleventh Circuit concluded that criminal defendants extradited outside of, or in the absence of, a treaty with the United States lack standing to assert the rule of specialty. (39)

The Eleventh Circuit reasoned with blinders when it reached its conclusion that Valencia-Trujillo was not extradited pursuant to the U.S.-Colombia extradition treaty by relying solely on the fact that the request for extradition did not explicitly name the treaty. (40) The court failed to give any weight to the fact that the laws invoked in the extradition request were the very laws that authorize extradition by treaty and are required by the treaty itself. (41) There appears to be no reason the United States would seek extradition outside of the treaty, considering all of the charges against Valencia-Trujillo were contained in the treaty and the procedures initiated by the United States followed those in the treaty. (42) Additionally, Valencia-Trujillo's extradition is distinguishable from other cases in which defendants were extradited outside of a treaty because he was neither deported nor abducted, nor did he or Colombia waive any of his rights. (43) To the contrary, Colombia specifically conditioned Valencia-Trujillo's extradition on the promise that the United States would not bring any charges not contained in the extradition agreement, which is the very definition of specialty. (44)

Despite Colombia's attempt to limit Valencia-Trujillo's prosecution to the charges contained in the request for extradition, the court refused to grant Valencia-Trujillo, as a private person, the right to enforce those limitations. (45) Although the court noted that international agreements do not generally create private rights, it failed to consider whether the surrendering nation has the right to object as a party to the agreement. (46) Had the court acknowledged the accepted principle in the Eleventh Circuit that surrendering nations have standing in extradition agreements, it would have been difficult for the court to hold that Colombia would not have objected to the additional charges. (47)

In holding that the rule of specialty only applies to extraditions pursuant to a treaty, the Eleventh Circuit was the first circuit court to create such a bright-line rule. (48) This limitation on standing thwarts the design and purpose of the rule by giving no guarantees to the surrendering country that the United States will live up to the promises it made when requesting extradition. (49) The Eleventh Circuit's decision to require a treaty to be explicitly invoked in order for the extradition to be made pursuant to that treaty has the potential to interfere with the Executive branch's ability to conduct foreign relations matters because it allows courts to disregard the intentions of the respective executive bodies and themselves choose which rights extradited individuals can assert. (50) In light of the fact that Colombia is the world's largest cocaine producing country, the United States cannot afford to lose the trust and cooperation of Colombia in prosecuting some of the more dangerous drug traffickers. (51)

In U.S. v. Valencia-Trujillo, the court considered whether a criminal defendant extradited from Colombia to the United States had standing to assert the rule of specialty when the request for extradition did not expressly invoke the existing U.S.-Colombia extradition treaty. In holding that the rule of specialty applies only to extraditions pursuant to treaties, the court departed from the majority of circuits, which recognize that the rule of specialty is governed by principles of international comity. The court also departed from customary U.S. extradition practices and an abundance of case law in denying the rights granted under an existing treaty when the defendant's extradition request did not expressly invoke that treaty. By refusing to defer to the assurances made by the executive branch in the extradition agreement, the court sent a message to Colombia that the United States cannot be trusted to live up to the promises it makes in order to secure extraditions.

(1.) See 18 U.S.C. [section][section] 3181-3196 (2006) (codifying U.S. extradition laws); M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 35-37 (4th ed. 2002) (discussing international view regarding duty to extradite); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 475 (1987) (recognizing duty to extradite pursuant to existing treaty). Treaties typically provide that extradition will be pursuant to the domestic laws of the requesting country. Ann Powers, Justice Denied? The Adjudication of Extradition Applications, 37 TEX. INT'L L.J. 277, 284 (2002).

(2.) See United States v. Rauscher, 119 U.S. 407, 415-17 (1886) (discussing international acceptance of specialty doctrine). The Supreme Court first recognized the rule of specialty in Rauscher. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 477 reporters' notes 1 (1987); see also United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986) (noting principle of specialty aids in cooperation between nations during extradition proceedings).

(3.) 573 F.3d 1171 (11th Cir. 2009).

(4.) Id. at 1177-81 (considering whether defendant's extradition pursuant to treaty).

(5.) Id. at 1179, 1181 (announcing court's holding).

(6.) Id. at 1174 (listing charges in indictment). Valencia-Trujillo was indicted by a grand jury on three counts of conspiracy for drug smuggling and money laundering and one count for conducting a continuing criminal enterprise in violation of 21 U.S.C. [section] 848(a). Id. The continuing criminal enterprise count included thirty-six predicate acts in violation of a number of provisions of the U.S. Code. Id. The indictment alleged that the crimes began "no later than" 1988. Id. See generally CONNIE VEILLETTE, CONG. RESEARCH SERV., COLOMBIA: ISSUES FOR CONGRESS (2005) available at (discussing U.S. involvement in Colombia's war on drugs).

(7.) Valencia-Trujillo, 573 F.3d at 1174. The procedures used to extradite Valencia-Trujillo were consistent with those required by the U.S.-Colombia treaty of 1979, which expressly provides for the rule of specialty. Id. at 1178. Cf. Extradition Treaty with the Republic of Colombia, U.S.-Colom., Sept. 14, 1979, S. TREATY DOC. NO. 97-8 [hereinafter U.S.-Colom. Extradition Treaty]. The U.S.-Colombia Extradition Treaty requires the nation requesting extradition to submit evidence of the indictment's charges in compliance with the requested nation's laws. Id. art. 9. The treaty was negotiated in the late 1970s as part of an effort to combat international drug trafficking. Igor L. Kavass, Colombia: Supreme Court Decision on Law Concerning the Extradition Treaty Between Colombia and the United States, 27 I.L.M. 492, 492 (1988). An important feature of the treaty is that it clearly spells out extraditable drug activities. Id. The treaty entered into force in 1982 but the Colombian Supreme Court declared it invalid under Colombian law in 1986. U.S. DEP'T OF STATE, THIRD REPORT ON INTERNATIONAL EXTRADITION SUBMITTED TO CONGRESS PURSUANT TO SECTION 3203 OF THE EMERGENCY SUPPLEMENTAL ACT, 2000 AS ENACTED IN THE MILITARY CONSTRUCTION APPROPRIATIONS ACT, 2001, PUBLIC LAW 106-246 RELATING TO PLAN COLOMBIA, available at [hereinafter THIRD REPORT]. Extraditions thereafter were pursuant only to executive decrees until Colombia amended its constitution in 1991 to prohibit all extraditions of Colombian nationals. Id. On December 17, 1997, Colombia amended its constitution to lift the ban on extradition of nationals. Id. By 1997, Colombia surpassed Peru and Bolivia to become the world's largest cocaine producing country, producing about 80% of the world's supply of cocaine. VEILLETTE, supra note 6, at 11. The United States is the world's largest cocaine consumer and approximately 90 percent of the cocaine brought to the United States comes from Colombia. Id. at 11-12. In 1999, Congress approved $1 billion in aid to Colombia to fight drug trafficking under a counternarcotics initiative known as "Plan Colombia." Id. at summary. Since 1999, the United States has provided Colombia with more than $4 billion to fund the war on drugs. Id. Notwithstanding Colombia's Supreme Court case that invalidated the 1979 U.S.-Colombia extradition treaty, the United States considers the 1979 extradition treaty valid and legally binding. U.S. DEP'T OF STATE, REPORT ON INTERNATIONAL EXTRADITION SUBMITTED TO THE CONGRESS PURSUANT TO SECTION 211 OF THE ADMIRAL JAMES W. NANCE AND MEG DONOVAN FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS 2000 AND 2001 (PUBLIC LAW 106-113) 9 n.10, available at; see also 18 U.S.C. [section] 3181 (2000) (including 1979 treaty in list of current bilateral extradition treaties); U.S. DEP'T OF STATE, TREATIES IN FORCE: A LIST OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES IN FORCE ON JANUARY 1, 2009 55 (2009), available at (acknowledging extradition treaty with Colombia in force); CHARLES DOYLE, CONG. RESEARCH SERV., EXTRADITION TO AND FROM THE UNITED STATES: OVERVIEW OF THE LAW AND RECENT TREATIES (Am. L. Division) 42 (2007), available at (listing Colombia as country with which United States has extradition treaty).

(8.) Valencia-Trujillo, 573 F.3d at 1174. The note specifically invoked Article 35 of Colombia's Constitution which provides: "Extradition can be ... granted or offered in accordance with public treaties or in their absence, with the law.... Extradition will not apply when the facts took place previous to the promulgation of this norm." Id. (quoting CONSTITUCION POLITICA DE COLOMBIA art. 35 (amended 1997)). In order to conform to the newly-amended provision, the note included a statement that the charges against Valencia-Trujillo were independently supported by events occurring after December 17, 1997. Id.

(9.) Id. at 1175-76 (setting forth Colombia's communications regarding Valencia-Trujillo's extradition). Colombia's Supreme Court advised Colombia's Ministry of the Interior and Justice that the extradition must be conditioned on the promise that Valencia-Trujillo would not be judged for actions committed prior to December 17, 1997. Id. at 1175. Colombia then issued an executive resolution conditionally granting Valencia-Trujillo's extradition to the United States for acts performed after December 17, 1997. Id. By diplomatic note, the United States explicitly agreed to abide by the conditions imposed by Colombia. Initial Brief of Appellant at 10, United States v. Valencia-Trujillo, 573 F.3d 1171 (11th. Cir. 2009) (No. 07-10524), 2008 WL 817148.

(10.) Valencia-Trujillo, 573 F.3d at 1176. Prior to his extradition, Valencia-Trujillo requested that Colombia remove predicate acts 1-26 from the continuing criminal enterprise charge in accordance with Colombian law. Id. at 1175. By Executive Resolution, Colombia denied the request because modifying a foreign court order interferes with the foreign nation's sovereignty. Id. Colombia noted further that the United States was bound by the conditions set forth in Colombia's grant of extradition. Id. at 1176.

(11.) Valencia-Trujillo, 573 F.3d at 1176 (discussing district court's decision on defendant's motion to enforce rule of specialty).

(12.) Id. (explaining measures taken by district court). The jury received: 1) a special instruction that it had to base its finding of guilt on each charge on conduct occurring after December 17, 1997; and 2) a special verdict form that conformed with the special instruction. Id. Additionally, any sentence imposed would be based solely on conduct occurring after December 17, 1997. Id. After the district court ruled on Valencia-Trujillo's motion, the United States moved for reconsideration, arguing that as long as it alleged post-December 1997 conduct, the rule of specialty would not prevent the government from offering evidence of uncharged predicate acts to prove the CCE charge. Initial Brief of Appellant, supra note 9, at 17. The government did not raise the issue of Valencia-Trujillo's standing to assert the rule of specialty. Valencia-Trujillo, 573 F.3d at 1177. The district court granted the government's motion, reasoning that the rule of specialty limits the charges for which the defendant may be tried, not the scope of proof admissible at trial, which is governed by the Federal Rules of Evidence. Id. at 1176.

(13.) Id. at 1177.

(14.) Id. (setting forth three alleged violations of rule of specialty). First, Valencia-Trujillo argued that the court erred by allowing the indictment to charge three conspiracy counts that began prior to December 17, 1997. Id. Second, he argued the court erred by not subjecting any pre-December 17, 1997 evidence to Federal Rules of Evidence 403 and 404(b) balancing tests. Id. Third, he argued the jury was improperly permitted to consider predicate acts that were not included in the indictment sent in the extradition request to Colombia. Id. Of the twenty-eight predicate acts listed on the special verdict form, only eight were included with the request for extradition sent to Colombia. Id.

(15.) Id. at 1181.

(16.) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 475 cmt. b (1987) [hereinafter Restatement of Foreign Relations]. Moreover, a defendant may only be extradited for offenses specifically contained in the treaty. Id.

(17.) See Peter S. McCarthy, United States v. Verdugo-Urquidez: Extending the Ker-Frisbie Doctrine to Meet the Modern Challenges Posed by the International Drug Trade, 27 NEW ENG. L. REV. 1067, 1085-89 (1993) (explaining U.S. acceptance of informal rendition practices). Informal rendition may be sought either through formal requests between nations' executive branches or through cooperation with law enforcement agents in the United States and the requested nation. See id. at 1086-87 (discussing U.S. government use of informal rendition when extradition treaty unavailable or impractical). There are generally three categories of informal rendition: abduction, informal surrender, and deportation under immigration laws. Matthew W. Henning, Note, Extradition Controversies: How Enthusiastic Prosecutions Can Lead to International Incidents, 22 B.C. INT'L & COMP. L. REV. 347, 361 (1999) (describing alternatives to formal extradition). Unless the treaty makes clear that alternative methods constitute a violation of the treaty, informal rendition is acceptable. See Roberto Iraola, A Primer on Legal Issues Surrounding the Extraterritorial Apprehension of Criminals, 29 AM. J. CRIM. L. 1, 6 (2001) (noting abduction acceptable when not prohibited by treaty); see also United States v. Alvarez-Machain, 504 U.S. 655, 669-70 (1992) (relying on Ker in holding U.S.-Mexico treaty did not prohibit abducting individual outside extradition procedures). Extradition treaties may be considered impractical when extradition is being sought for a crime not recognized in the extradition treaty. See United States v. Fiocconi, 462 F.2d 475, 476-77 (2d Cir. 1972) (noting U.S. government requested extradition as act of comity when charged narcotic offense not listed in applicable treaty); see also I.A. SHEARER, EXTRADITION IN INTERNATIONAL LAW 67 (1971) (stating informal rendition contemplated where treaty does not list offense charged).

(18.) See United States v. Riviere, 924 F.2d 1289, 1300 (3d Cir. 1991) (noting country may voluntarily surrender fugitive as matter of international comity for non extradition treaty charges); DOYLE, supra note 7, at 33 (explaining waiver of treaty by fugitive as alternative to extradition hearing); cf. Stevenson v. United States, 381 F.2d 142, 144 (9th Cir. 1967) (distinguishing waiver of treaty from one country's unilateral surrender of unwelcome alien). An existing treaty is irrelevant, and no "extradition" occurs, when a country initiates the surrender of a criminal without a formal request by the United States. Id.; United States v. Valot, 625 F.2d 308, 310 (9th Cir. 1980) (holding no "extradition" when Thailand initiated defendant's removal to United States).

(19.) See Riviere, 924 F.2d at 1291 (concluding no standing for defendant to assert rights under treaty when expressly waived by surrendering nation); United States v. DiTommaso, 817 F.2d 201, 212 (2d Cir. 1987) (denying standing where defendant waived right to extradition resulting in deportation).

(20.) 119 U.S. 407 (1886).

(21.) See id. at 430 (stating rule of specialty supported by precedent and principle). The defendant in Rauscher was extradited from Great Britain pursuant to a treaty on a charge of murder, but the United States charged him instead with cruel and unusual punishment. Id. at 410. The Court held that the rule of specialty is implied in extradition treaties that are silent on the issue, reasoning that such an act of comity was a historic practice of nations in the absence of treaties. Id. at 419-20. Since Rauscher, the doctrine of specialty has been recognized as part of U.S. foreign relations law and has been incorporated into most U.S. extradition treaties. See RESTATEMENT OF FOREIGN RELATIONS, supra note 16, at [section]477 (defining doctrine of specialty under most international agreements, state laws, and state practices). But cf. Recent Case, Eleventh Circuit Holds that "Rule of Specialty" Applies Only When Provided by Treaty: United States v. Valencia-Trujillo, 123 HARV. L. REV. 572, 577 (2009) [hereinafter Recent Case] (arguing Rauscher Court adopted specialty specifically for enforcement of U.S.-U.K. treaty, not as customary international law). See generally Melissa A. Boyle, The Specialty Doctrine: Self-Serving Interpretations, 18 SUFFOLK TRANSNAT'L L. REV. 629, 630-34 (1995) (discussing development of specialty rule internationally). The principle of specialty is grounded in concerns of international comity, designed to prevent breaches of trust between nations and to ensure future extraditions. See BASSIOUNI, supra note 1, at 515 (discussing design of specialty principle); Timothy McMichael, Born to Run: The Supreme Court of Washington's Misapplication of the Doctrine of Specialty in State v. Pang, 74 WASH. L. REV. 191, 195 (1999) (stating specialty aimed at preventing violations of trust); see also United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (discussing importance of deferential consideration of Executive Branch assurances to secure future extraditions). Courts are expected to afford such deference in matters of foreign policy. Id. Deferring to the substantive assurance made by the United States allows the surrendering nation to see that its negotiation with the Executive Branch is being honored. Id.; John J. Barrett III, Note, The Doctrine of Specialty: A Traditional Approach to the Issue of Standing, 29 CASE W. RES. J. INT'L L. 299, 317 (1997) (positing best interests of U.S. foreign relations protected when judiciary defers to President). Judicial deference is only appropriate when based upon the Executive's conduct of international affairs prior to, and independently of, domestic litigation. See Jonathan I. Charney, Special Issue: The United States Constitution in its Third Century: Foreign Affairs: Distribution of Constitutional Authority: Judicial Deference in Foreign Relations, 83 AM. J. INT'L L. 805, 812 (1989) (discussing considerations for judicial deferral to Executive branch). Statements made by the government only during the course of domestic litigation should not be given deference as they do not constitute acts of foreign affairs. Id.; Cf. Molly McConville, Note, A Global War on Drugs: Why the United States Should Support the Prosecution of Drug Traffickers in the International Criminal Court, 37 AM. CRIM. L. REV. 75, 82-87 (2000) (arguing necessity of maintaining respect of requested states in order to secure future extradition); Ha Kung Wong, The Extra in Extradition: The Impact of State v. Pang on Extraditee Standing and Implicit Waiver, 24 J. LEGIS. 111, 111 (1998) (highlighting importance of cooperation to successfully prosecute criminals).

(22.) 119 U.S. 436 (1886).

(23.) See id. at 443 (distinguishing Ker defendant from defendant extradited pursuant to treaty in Rauscher). The defendant in Ker was kidnapped in Peru and forcibly brought to the United States where he was tried for embezzlement. Id. at 437-38. The Court held that the U.S.-Peru extradition treaty was not applicable because the defendant had been abducted, not extradited. Id. at 442-43. In distinguishing the case from Rauscher, the Court stated, "it is quite a different case when the ... [defendant] ... comes to this country ... clothed with no rights which a proceeding under the treaty could have given him...." Id. at 443; cf. Alvarez-Machain, 504 U.S. at 670 (holding no violation of U.S.-Mexico extradition treaty despite government involvement in abducting defendant).

(24.) See United States v. Abello-Silva, 948 F.2d 1168, 1175-76 (10th Cir. 1991) (applying rule of specialty to defendant extradited pursuant to executive decree); Fiocconi, 462 F.2d at 480 (interpreting Rauscher to mean specialty applies to defendants extradited by act of comity); United States v. Lehder-Rivas, 668 F. Supp. 1523, 1528 n.6 (M.D. Fla. 1987) (cautioning rule of specialty not applicable if extradition pursuant to invalid treaty). Even when courts have held that the rule of specialty applies to a particular extradition, the courts have disagreed as to whether defendants have legal standing to assert the rule. See David B. Sweet, Annotation, Application of Doctrine of Specialty to Federal Criminal Prosecution of Accused Extradited from Foreign Country, 112 A.L.R. FED. 473, [section] 2(a)(2009) (citing split among federal courts on applicability and standing); see also Wong, supra note 21, at 116-24 (discussing authority split on standing).

(25.) See United States v. Riviere, 924 F.2d 1289, 1297 (3d Cir. 1991) (ruling no rights under treaty when surrendering nation expressly waives them); United States v. DiTommaso, 817 F.2d 201, 212 (2d Cir. 1987) (holding no standing to assert treaty rights when defendant deported after waiving right to extradition). But cf. United States v. Evans, 667 F. Supp. 974, 979 (S.D.N.Y. 1987) (holding rule of specialty applied to defendant deported through diplomatic notes).

(26.) See supra note 25 (citing cases creating rule of specialty exceptions).

(27.) See United States v. Fiocconi, 462 F.2d 475, 479-80 (2d Cir. 1972) (stating no reason Rauscher remedy should not apply to extradition as act of comity). In Fiocconi, the criminal defendants were extradited outside of an existing treaty between the United States and Italy because the treaty did not list, as an extraditable offense, the offense for which the defendants were being charged. Id. at 476-77. In the request for extradition, the U.S. Embassy acknowledged this conflict under the treaty and sought extradition as an act of comity. Id. at 477. The court concluded that the holding in Rauscher should also be applied to extraditions based on comity, noting "[t]he absence of a treaty is not dispositive, however, of a court's obligation to enforce principles of international law...." Id. at 480 n.7. Like an individual extradited pursuant to a treaty, an individual surrendered as an act of comity has standing to assert the rule of specialty if the surrendering nation would regard the prosecution as a breach of the extradition agreement. Id. at 480 n.8; see also United States v. Kaufman, 858 F.2d 994, 1007 n.4 (5th Cir. 1988) (stating specialty applies with equal force to extradition by treaty or comity); Evans, 667 F. Supp. at 979 (stating specialty doctrine applies to extraditions based on comity); Sweet, supra note 24, [section] 3(a) (citing cases where specialty doctrine held or recognized applicable to extraditions not pursuant to a treaty).

(28.) See United States v. Gallo-Chamorro (Gallo-Charmorro I), 48 F.3d 502, 506 (11th Cir. 1995) (applying specialty doctrine where treaty invalid without examining standing). The Eleventh Circuit, like a majority of circuits, has held that defendants extradited pursuant to treaties have standing to allege a violation of the rule of specialty, limited to the objections that the surrendering country might have brought. See United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995) (holding defendants have standing to assert rule of specialty limited to objections surrendering nation could have brought). The court characterized extradition treaties as contracts between nations with the rule of specialty as a provision of that contract. Id. at 1574. The contract may confer rights onto extradited defendants, but only to the extent that those rights are held by the surrendering nation as a party to that contract. Id.; see also Fiocconi, 462 F.2d at 480 (considering whether surrendering country would object to prosecution); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 477 cmt. b (1987) (stating standard for determining standing whether requested state objected or would object). But cf. Riviere, 924 F.2d at 1300 (holding no standing when asylum country waives right under treaty); Eric P. Wempen, United States v. Puentes: Re-Examining Extradition Law and the Specialty Doctrine, 1 J. INT'L LEGAL STUD. 151, 177 (1995) (arguing courts should deny standing unless surrendering country formally protests).

(29.) See United States v. Gallo-Chamorro (Gallo-Chamorro II), 233 F.3d 1298, 1305 (11th Cir. 2000) (stating specialty doctrine based on international comity). The court stated that the defendant was extradited from Colombia and noted that the 1979 U.S.-Colombia extradition treaty was declared invalid by the Colombian Supreme Court in 1986 and lacked force in Colombia. Id. at 1302 n.1. The court did not address, however, whether the defendant was considered to have been extradited pursuant to the invalid treaty or by comity. Id.

(30.) See Gallo-Chamorro I, 48 F.3d at 506 (applying specialty doctrine without examining standing). When an extradited defendant asserts the rule of specialty, courts generally begin by determining whether the defendant has standing. See Puentes, 50 F.3d at 1571-72 (addressing issue of standing for first time). Some courts have merely assumed standing, both expressly and impliedly. See United States v. Herbage, 850 F.2d 1463, 1466 (11th Cir. 1988) (assuming standing); DiTommaso, 817 F.2d at 212 n.13 (refusing to address standing).

(31.) 573 F.3d at 1181 (holding defendant lacked standing to assert specialty because extradition not based on treaty).

(32.) Id. at 1179 (stating Rauscher conceived rule of specialty to apply to extradition treaties).

(33.) Id. at 1180-81 (distinguishing extradition agreements from treaties).

(34.) Id. (discussing enforceability of rights of extradited defendants by U.S. courts).

(35.) Id. at 1181. The court acknowledged Valencia-Trujillo would have had standing if he had been extradited under the treaty, which expressly provides for the rule of specialty. Id. at 1177-78.

(36.) Id. at 1178 (asserting Valencia-Trujillo failed to establish he was extradited pursuant to treaty). In a footnote, the court admitted the English translation of Valencia-Trujillo's extradition approval was "not entirely clear." Id. at 1178 n.4. The resolution granting extradition states "that because of not[sic] existing any[sic] Agreement applicable to the case it is admissible to act under provisions of the Colombian Penal Code." Id. Additionally, Valencia-Trujillo relied upon a 1999 State Department Memorandum from the American Embassy in Colombia that established that most extraditions to the United States occur pursuant to the 1979 treaty and that the procedures followed in Valencia-Trujillo's extradition were consistent with those under the treaty. Id. at 1178. The court refused to hold that this established that Valencia-Trujillo had been extradited under the treaty, noting that the State Department Memo also implied that Colombians could be extradited to the United States outside of the 1979 treaty. Id.

(37.) Id. at 1178-79 (distinguishing Gallo-Chamorro from facts of instant case). The court noted that the 1979 treaty was not in effect when the defendant in Gallo-Chamorro was extradited and the extradition was made possible by a Colombian executive decree. Id. at 1179.

(38.) See id. at 1179 (asserting Gallo-Chamorro did not change facts in instant case).

(39.) See id. at 1179-81 (discussing rule of specialty as treaty-based).

(40.) See supra note 36 and accompanying text (outlining court's reasoning).

(41.) See supra notes 7-8 and accompanying text (detailing contents of extradition request and historical context of treaty); supra note 7 (noting United States recognizes treaty with Colombia in force); U.S.-Colom. Extradition Treaty, supra note 7, art. 9 (requiring evidence of offenses according to laws of requested state); see also supra note 36 (highlighting court's rejection of State Department Memo).

(42.) See supra note 7 (noting extradition of Valencia-Trujillo consistent with treaty); U.S.-Colom. Extradition Treaty, supra note 7, app. (listing extraditable drug activities); supra note 17 and accompanying text (describing informal rendition when treaty impractical); supra note 16 and accompanying text (noting extradition customarily pursuant to treaty if one exists). But see Recent Case, supra note 21, at 576 (suggesting U.S. opposition to specialty limitation in Colombia's 1997 constitutional amendment likely reason for United States' refusal to follow). The U.S. government's objections to Valencia-Trujillo's motions never alleged that the rule of specialty did not apply, rather the government argued the evidence it sought to admit did not violate the rule. See supra note 12 (noting government failed to raise issue of standing).

(43.) See supra notes 25-26 and accompanying text (noting cases where defendant not extradited under available treaty).

(44.) See supra note 9 (setting forth Colombia's Executive Resolution conditioning extradition); supra note 21 and accompanying text (defining rule of specialty).

(45.) See supra note 34 and accompanying text (noting Eleventh Circuit held extradition agreements do not create private enforceable rights).

(46.) See supra note 34 and accompanying text (noting court held only treaties can create private enforceable rights). Ironically, the court gave this generalization full weight when it refused to give any weight to the State Department Memo that established extraditions from Colombia are generally governed by the treaty. See supra note 36 (noting court refused to hold State Department Memo established Valencia-Trujillo extradited pursuant to treaty).

(47.) See supra note 28 (noting standing under treaty limited to objections surrendering country may have).

(48.) See supra notes 31-34 and accompanying text (outlining Eleventh Circuit's application of rule of specialty); see also supra note 24 (citing circuit court's application of specialty).

(49.) See supra note 2 and accompanying text (noting specialty rule promotes cooperation between nations); supra note 21 (discussing importance of honoring assurances used to secure extradition).

(50.) See supra note 49 (discussing importance of judicial deference to executive Branch agreements in foreign relations); see also McConville, supra note 21, at 80-84 (stressing harms of poor cooperation in extradition for drug-trafficking); Barrett, supra note 21, at 313-16 (cautioning judicial activism in treaty enforcement hinders government in conducting foreign relations). But see Recent Case, supra note 21, at 576 (arguing court showed proper deference to Executive branch in Valencia-Trujillo). The United States explicitly agreed to abide by the non-retroactive specialty limitation on which Colombia conditioned Valencia-Trujillo's extradition. See supra note 9 (describing exchange of diplomatic assurances between United States and Colombia). Even if the government's attempt to introduce pre-December 1997 charges can be interpreted as an intentional refusal to comply with the assurances made in the extradition request, judicial deference is not appropriately applied to the government's conduct during litigation. See supra note 21 (discussing appropriate judicial deference in foreign affairs); supra note 42 (noting government never denied enforceability of diplomatic assurances to enforce specialty rule); supra note 7 (noting government considers U.S.-Colombia extradition treaty valid and in force).

(51.) See supra note 7 (discussing U.S. involvement in war on drugs with Colombia); REPORT ON INTERNATIONAL EXTRADITION, supra note 7 (discussing history of U.S.-Colombian extradition relationship); McConville, supra note 21, at 76-78 (stating drug-trafficking constitutes urgent threat to U.S. security); McCarthy, supra note 17, at 1097 (asserting United States has significant responsibility to decrease demand for narcotics).
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Author:Cafarelli, Amie
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2010
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