The U.S. Court of Appeals for the Second Circuit recently heard an appeal, against both conviction and sentence, lodged by a Dominican citizen who had been extradited from the Dominican Republic on murder and subsidiary charges. The Defendant was found guilty and, in February 2005, was sentenced on the main charge to life plus ten years. During the sentencing phase, knowing he was facing a possible life sentence, the Defendant argued that he shouldn’t be given life because, under Dominican law, he could only be sentenced to a maximum of 30 years in prison for murder. The U.S. government disagreed.
Discussing the appeal against sentence, the Court of Appeals summarized what had occurred before the district court. To rebut the Defendant’s argument concerning applicability of Dominican law, the U.S. had submitted three documents. “The first was the extradition treaty generally applicable to individuals extradited by the Dominican Republic, which contains no 30-year limitation. The second was a sworn declaration of an official of the United States Department of State, explaining the procedures extraditing nations normally follow when they seek to impose conditions on extradition, noting that no such procedures had been followed in this case, and asserting that the State Department had received no communications from the Dominican Republic regarding limitations on [Defendant’s] sentence. The writer [said] that there was no sentence-limiting agreement between the United States and the Dominican Republic regarding [Defendant].
“The final document was the sworn declaration of the Director of the Office of International Affairs of the Criminal Division of the United States Department of Justice, in which she explained that, to her knowledge, no United States official had received, prior to [Defendant’s] transfer to the United States, any documentation indicating either an extradition-based agreement with the United States on [Defendant’s] sentence… She also noted that such agreements are unusual and, when they occur, they generally follow a certain procedure – which was not followed in this case. Her statement concluded that there was no sentence-limiting agreement regarding [Defendant].”
In legal argument on this issue before the Court of Appeals, the government contended that even “if the United States contracted to limit the duration of Defendant’s sentence, the right to enforce the agreement belongs to the Dominican Republic and not to [Defendant].”
In its opinion, the Court of Appeals noted: “Different courts in this circuit have viewed the issue [of whether it is for the foreign country, not the defendant, to enforce an international sentencing agreement] differently.” The Appeals Court upheld the sentence without ruling on this question.
“We need not resolve this question. We affirm because we find no error in the district court’s findings or proceedings. In the first place, the extradition treaty between the United States and the Dominican Republic contains no provision so limiting sentences. Secondly, although the Dominican Republic apparently has a law providing for such a limitation when it extradites its citizens to other countries, [Defendant] failed to submit any document showing that the Dominican Republic invoked the law* in its dealings with the United States in connection with [Defendant’s] extradition.
“Finally, [Defendant] contends that his sentence of life imprisonment plus ten years was imposed in violation of an agreement between the United States and the Dominican Republic in connection with his extradition that he would not receive a sentence of imprisonment in excess of 30 years. He contends that the Dominican Republic conditioned his extradition on the promise of the United States to limit any sentence [Defendant] might receive to 30 years’ imprisonment. As a consequence, [Defendant] argues, the sentence that he received was illegal.”
But the Court of Appeals noted that the defendant had submitted nothing in support of this position. “[T]he most that was shown by [Defendant’s] submissions was that officials of the Dominican Republic believed*, no doubt based on the domestic law of the Dominican Republic, that [Defendant’s] sentence would be so limited. None of the submissions by Dominican officials, however, pointed to any agreement or undertaking made by the United States to limit his sentence or even to a communication from the Dominican Republic to the United States expressing an expectation that the sentence would be so limited.”
The Court of Appeals pointed out that statutes of another country do not, of themselves, bind the United States, citing this opinion from a 1980 case1: “[N]o nation may unilaterally bind another sovereign by the sheer force of its statutory enactments….”
In his appeal, the defendant also contended that the district court had acted improperly in not allowing a preliminary evidentiary hearing on the issues relating to sentencing. However, the Court of Appeals rejected this argument, finding that the decision whether or not to hold an evidentiary hearing was in a court’s discretion. In this case, in the six months between the jury’s original finding of guilt and the sentencing hearing, the defendant had “failed to produce any evidence that the United States ever entered into an agreement or undertaking to limit the duration of his sentence. Furthermore, while [Defendant] requested an evidentiary hearing, he produced no indication what witnesses he would call or what evidence he would adduce beyond the inadequate contents of his written submissions. [Defendant’s] counsel did say he would seek to obtain a witness from the Dominican Consulate. Counsel, however, neither identified the witness nor stated such a witness had indicated willingness to testify, nor specified what evidence the witness would give.
“Under the circumstances presented in this case – including the length of time between conviction and sentencing [and] the lack of evidence establishing an agreement or undertaking on the part of the United States vis-à-vis the Dominican Republic,” the defendant’s appeal failed, and his sentence of life plus ten years stood.
One interesting footnote was a reference by the Court of Appeals to Article 6 of the Vienna Treaty Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the “Vienna Treaty”), 28 I.L.M. 493 (1989), which limits the sentence that a U.S. court can impose on an extradited defendant. “By its express terms, however,” the Court noted, “Article 6 of the Vienna Treaty applies only to individuals extradited for narcotics offenses. See id, at 507 (1989). [Defendant] was transferred to United States custody based on murder, conspiracy to commit murder, and weapons charges. The Vienna Treaty is thus inapplicable in his case.”
But it may not be in yours.
* Emphasis added.
1 Rosado v. Civiletti, 621 F.2d 1179, 1192 (2d Cir. 1980).