Below is another portion of an opinion by Judge Lynch, this time on the issue of non bis idem, a subject of much controversy among extradited defendants. On this and many other legal issues, Judge Lynch’s opinions are the last word. Again, I have taken the liberty to condense the decision and edit it to make it more reader-friendly:
“Defendant first contends that the indictment in this case should be dismissed because his extradition from Mexico to the United States violated Article 6 of the Mexican-U.S. Extradition Treaty which embodies the principle of non bis idem and prohibits the requested state from granting extradition when the person sought has already been prosecuted for the same offense for which extradition has been requested. Longstanding legal precedent in American Courts, however, forecloses review of Mexico (and any other requested country’s) decision.
“Cases have long held that ‘[a] foreign government’s decision to extradite an individual in response to a request from the United States is not subject to review by United States courts. The Supreme Court has held that whether a crime is within the bounds of a particular extradition treaty and is properly resolved by the surrendering state, such determination is final. American courts cannot ‘second-guess another country’s grant of extradition to the United States.’ Said the Supreme Court, ‘It could hardly promote harmony to request a grant of extradition and then, after extradition is granted, have the requesting nation take the stance that the extraditing nation was wrong to grant the request.’
“The Mexican Government in this case was well aware of the elements of the offenses for which Defendant would be tried in the United States. Consequently, Mexico was fully capable of making an informed decision as to whether the charges outlined in the extradition request constituted the same offenses as those for which Defendant was convicted in Mexico. Moreover, the text itself of Article 6 directs its prohibition of non bis idem to the extraditing state, and nothing in that provision or the treaty itself allows the requesting state to review that decision.
“Also, the American Supreme Court has long held that illegalities in the manner in which a defendant is apprehended and brought within a court’s jurisdiction neither deprive that court of its power to try the defendant nor requires dismissal of the underlying charges. In each of the situations in which the Court has invoked this rule, the illegalities have been blatant – often involving forcible abduction – and orchestrated or undertaken principally by agents of the U.S. government. See Alvarez-Machain, 504 U.S. at 657. Indeed, Defendant has not cited a single case in which an American court has deviated from the broad rule of disregarding major or minor alleged violations of extradition treaties, and the cases that follow the rule are legion.
“The only time a court is deprived of jurisdiction over an extradited defendant is if either: (1) the transfer of the defendant violated the applicable extradition treaty, or (2) the United States government engaged in “misconduct ‘of the most shocking and outrageous kind’” to obtain his presence. In United States v. Matta-Ballesteros, the defendant had been “forcibly abducted from his home in Honduras,” and argued that the extradition treaties between the United States and Honduras prohibited such abductions. Rejecting this argument, the court held that the treaty did not ‘sufficiently specify extradition as the only way in which one country may gain custody of a foreign national for purposes of prosecution.’ Consequently, there was no basis for either divesting the court of jurisdiction over the defendant or requiring dismissal of the underlying charges. [Editor’s note: the implication is that abduction could be a violation of the extradition treaty if the treaty explicitly says so.]
“Nor can Defendant in the instant case contend that the principle of non bis in idem is so fundamental that any violation of it would ‘shock the conscience’ or violate basic human rights norms. While some type of prohibition against multiple punishments for the same offense may be an internationally-recognized human right, the precise contours of the principle are technical and variable. The United States Constitution, for example, while recognizing the prohibition against double jeopardy in principle, nevertheless permits successive prosecution by different sovereigns. Thus American law could hardly be said to recognize that successive prosecutions by different sovereigns is a basic human right.
“Accordingly, Defendant’s motion to dismiss the indictment for violation of non bis idem is denied.”
Editor’s note: Judge Lynch’s opinion is correct as far as it goes. It does not say that Mexico’s decision regarding non bis idem is correct. He merely holds that an American Court cannot review Mexico’s decision. In my view the Mexican court’s ruling was intellectually dishonest. It made a distinction without a difference. Trafficking drugs and importing those same drugs into the United States are not two different crimes. Trafficking in drugs is a crime. Importation is not a crime. It is simply the hook that the U.S. can hang its jurisdictional hat on. Both sovereigns are prosecuting the same crime, namely trafficking in drugs.