Although criminal was extradited to U.S. from Colombia based on extradition treaty with diplomatic assurance that Government would recommend term of years rather than life imprisonment, Second Circuit upholds sentence of life imprisonment
In October 2000, Columbia extradited Alex Restrepo to the U.S. He had allegedly taken part in several robberies. At a Bronx, New York, robbery in August 1999, a person was murdered. Evidence pointed to Restrepo as involved in that robbery. He regularly drove a black Ford Explorer. The next day, police stopped such a vehicle. They found that Restrepo's wife was driving it and also seized a magazine loaded with .45 caliber bullets.
The U.S. issued Diplomatic Note No. 1060, assuring Colombia that "the death penalty would not be sought or imposed in this case." With Diplomatic Note No. 1206, the U.S. later stated that "should Mr. Restrepo be convicted of the offenses for which extradition has been granted, the United States ... will not seek a penalty of life imprisonment ..."
"The Government of the United States also assures the Government of Colombia that, should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against Mr. Restrepo, the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years."
Colombia extradited Restrepo based on four counts of a twelve-count indictment for racketeering-related charges. A New York federal court convicted Restrepo of racketeering and related charges, and sentenced him to life imprisonment. He appealed, arguing that the sentence violated the above diplomatic notes. The U.S. Court of Appeals for the Second Circuit, in a per curiam opinion, affirms.
Restrepo argued that, according to the international principle of speciality, the requesting nation may not try an extradited defendant for a crime not enumerated in the applicable extradition treaty. International comity also requires a country seeking extradition to adhere to any limitations which the surrendering country placed on the prosecution.
As for the diplomatic assurances, the Court of Appeals does not read them as absolute. "The note expressly contemplates the possibility that a sentencing court might impose a term of life imprisonment and assured Colombia that, if that occurred, the executive authority of the United States would seek to have the sentence commuted to a term of years."
"As contemplated by Diplomatic Note No. 1206, the United States, through the U.S. Attorney for the Southern District of New York, requested that the District Court sentence Restrepo to a term of years. The Court, following 18 U.S.C. Section 1959(a)(1) and the applicable Sentencing Guidelines, imposed a life sentence. Contrary to Restrepo's contention, the government fulfilled the commitment it made in Diplomatic Note No. 1206, and the Court was not obligated under that note to sentence Restrepo to a term of years." [Slip op. 4-5]
The Court of Appeals, however, disagrees with the district court's interpretation of the Diplomatic Note which suggested that, as an independent branch of government, it could ignore the extradition treaty. "The Judiciary is unquestionably independent of the Executive. However, the cauldron of circumstances in which extradition agreements are born implicate the foreign relations of the United States. In sentencing a defendant extradited to this country in accordance with a diplomatic agreement between the Executive branch and the extraditing nation, a district court delicately must balance its discretionary sentencing decision with the principles of international comity in which the rule of speciality sounds."
"Courts should accord deferential consideration to the limitations imposed by an extraditing nation in [a reciprocal] effort to protect United States citizens in prosecutions abroad. ... Moreover, in evaluating the exact limitations set by the extraditing nation, courts should not elevate legalistic formalism over substance. To do otherwise would strip comity of its meaning."
"In sum, courts should temper their discretion in sentencing an extradited defendant with deference to the substantive assurances made by the United States to an extraditing nation. If anything, such deference may well allow the United States to secure the future extradition of other individuals because foreign nations would observe that the limitations they negotiated with the Executive branch in respect to the prosecution of their extradited citizens are being honored."
"This is not a surrender of the independence of the Judiciary to the Executive branch. To the contrary, it is the classical deference courts afford to the political branches in matters of foreign policy." [Slip op. 5-7]
Citation: United States v. Baez, 2003 WL 22682305 (2nd Cir. Nov. 14).
USA visa and immigration information is available at www.immigrationtelevision.com.
|
