On July 7, 2009 the 11th Circuit handed down the case of U.S. v. Joaquin Mario Valencia –Trujillo, docket no. 07-10524, an opinion authored by the folksy, Edward Earle Carnes, who appears to be a “good old boy” from Alabama.
I have never seen a judicial opinion written with such perverse and inappropriate glee and with such relish to knock down all the arguments of a defendant who was sentenced to forty years, a lifetime. It starts off rapturously, praising “Operation Panama Express,” listing all its wonderful seizures and arrests, and comparing it to “a train running through Central America” with a “successful run.” The closing paragraph refers to the defendant’s “wild ride” and being “overtaken by the Panama Express” which ended up being “[the defendant’s] earthly version of ‘the Hell-Bound Train.’” A footnote explains, “The Hell-Bound Train” is an old Ozark Folk Song reflecting, I suppose, the judge’s Alabama roots. Given the defendant’s sentence, the opinion took on an unseemly tone. A judge may not be crazy about drug dealing but he or she does not have to dance on a condemned man’s grave.
Valencia-Trujillo, a Colombian citizen, was convicted of organizing and leading a criminal enterprise responsible for drug and money laundering crimes over the course of more than a decade. He was sentenced to 480 months imprisonment. In his appeal, the defendant claimed that the rule of specialty was violated in his conviction. The rule prohibits a requesting state (U.S.) from prosecuting any offense which was not authorized by the requested state (Colombia).
However, the court found that Valencia-Trujillo did not have “standing” to assert the rule of specialty because “he [did] not establish that he was extradited under a United States-Colombia extradition treaty,” which provides for the rule of specialty. Instead, the court found that “Valencia-Trujillo was not extradited under the [United States-Colombia extradition treaty] but under the Colombian Constitution and laws.” That Colombians are not extradited by treaty but by their own law, is a patently technical and disingenuous argument given the plethora of Colombian Supreme Court decisions that carefully parse out charges that a Colombian national can and cannot be extradited for. However, the Circuit Court’s ruling can only be addressed by Colombia’s Supreme Court, which has the final say in what it means and what it does not mean.
But assuming the extradition was treaty-based, the court found that Mr. Valencia-Trujillo still would not be given relief because he was not one of the contracting parties to the “treaty” and lacked the “standing” to complain. (This type of conclusion is not shared among all U.S. courts.) The 11th Circuit pointed to the Supreme Court’s recent explanation stating:
A treaty is, of course, primarily a compact between independent nations. It ordinarily depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these interests fail, its infraction becomes the subject of international negotiations and reclamations. It is obvious that with all this the judicial courts have nothing to do and can give no redress.
Medellin v. Texas, __U.S.__, 128 S. Ct. 1346, 1357 &n.3 (2008). Only Colombia, a party to the treaty, could claim that the rule of specialty was violated in Valencia-Trujillo’s conviction, a dim prospect at best since the only complaint the Uribe government has ever made to the U.S. regarding extradition is not punishing drug dealers severely enough. However, the Colombian Supreme Court, to its credit, has come across as an independent body interested in protecting the rights of Colombians, which it should do here as well.
Mr. Valencia-Trujillo also claimed that he was denied his right to challenge the statements of the FBI agent that led to his extradition. The court rejected this claim and pointed out that U.S. constitutional safeguards only apply to “the people” of the United States. The court also correctly, but unfortunately, pointed to the infamous U.S. Supreme Court decision in U.S. v. Verdugo-Urqidez, 494 u.s. 259 (1990), in support thereof, where the court denied a challenge to a concededly illegal search by U.S. agents in Mexico of a Mexican residence owned by a Mexican citizen. As a Colombian Mr. Valencia-Trujillo had no right to complain under the Constitution of the United States. I hasten to add that this is not the rule if the alleged violation occurred on American soil.
But the “most fundamental” reason Mr. Valencia-Trujillo was not entitled to challenge the agent’s allegations, said the court, was because a criminal defendant does not have the right to challenge how he comes into the jurisdiction of the United States. Surprisingly, that is correct, and most people, including lawyers, do not know it. When I discuss extradition, the first thing I point out is that U.S. courts permit kidnapping. That is right, kidnapping. The Circuit Court referred to such a case where agents just “hauled [a Mexican] into this country without Mexico’s consent.” U.S. v. Alvarez-Machain, 504 U.S. 655, (1992). So if kidnapping is permissible, you can imagine what a court would do with a little lie as a basis to challenge an extradition.
Short of pointing a gun to a child’s head to force a father to go to the United States, which arguably could “shock the conscience,” and be violative of due process, (and even then I am not so sure) chances are slim to none that there would ever be a favorable ruling on an alleged violation of an extradition treaty, save for a violation of the rule of specialty. If extradition reform is to come, it has to come from the requested country, not the requesting country. The U.S. does not give a damn how it gets you into its jurisdiction, by hook (by law) or, literally, by crook (kidnapping).
The Valencia-Trujillo decision was a tough pill to swallow and gratuitously cruel in its delivery. Colombian lawyers, take heed. There is a lot of work to be done. As far as the 11th Circuit is concerned, the rule of specialty does not exist in your country. You need to let your Court know about it—your Court, not mine—so there is no mistaking that the rule of specialty is alive and well in Colombia and should be respected in the U.S.
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