In re Berrocal

• Decision Date: 31 August 2017
• Docket Number: Case No. 17-22197-Civ-TORRES
• Parties: IN THE MATTER OF THE EXTRADITION OF RICARDO ALBERTO MARTINELLI BERROCAL
• Court: U.S. District Court — Southern District of Florida

IN THE MATTER OF THE EXTRADITION OF RICARDO ALBERTO MARTINELLI BERROCAL

Case No. 17-22197-Civ-TORRES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

August 31, 2017

FINAL ORDER ON THE GOVERNMENT'S MOTION FOR A CERTIFICATE TO EXTRADITE TO PANAMA

One of our nation's greatest Justices, Oliver Wendell Holmes, disfavored lengthy opinions. He preferred a "short little opinion" over a lengthy one "padded" with unnecessary discourse.¹ The following lengthy analysis of the relevant facts and governing law would not be warmly greeted in his Chambers. But given the importance of the outcome to all interested parties, and this Court's obligation to satisfy the requirements of 18 U.S.C. § 3184, we offer a detailed recitation of all the issues raised by the parties and the Court's reasoning.

Because Justice Holmes has penned or participated in many important decisions that, to this day, define the essential nature of the extradition process, our decision can be distilled to a few paragraphs quoting and paraphrasing those opinions.

To begin,

It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time. For while, of course, a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender.²

In our case,

[O]ut of a natural anxiety to save [Pres. Martinelli] if possible from being sent from [Florida] to [Panama] for trial, it has been presented as if this were the final stage and every technical detail were to be proved beyond a reasonable doubt. This is notthe law. Form is not to be insisted upon beyond the requirements of safety and justice. Competent evidence to establish reasonable grounds is not necessarily evidence competent to convict.³

And notwithstanding Pres. Martinelli's technical but meritless objections to the process that led to this extradition request,

[His main] objection is that there is no evidence that the defendant is guilty of the crime charged. This is rather a bold contention seeing that [he was President and Head of the National Security Council at a time that the Council was allegedly and unlawfully surveilling the President's political opponents, and using public funds in the process for purely personal gain.] It is unnecessary to go into greater detail. We are of the opinion that probable cause to believe [Pres. Martinelli] guilty was shown by competent evidence. . . .⁴

As "[w]e are bound by the existence of an extradition treaty to assume that the trial will be fair," that is the end of our inquiry. Or as Justice Holmes succinctly declared, "that is enough."⁵

* * *

TABLE OF CONTENTS

I. BACKGROUND ...................................................................................................... 5

A. Panama's Request for Extradition ................................................................... 5

B. The Charges Against Pres. Martinelli ............................................................. 7

C. The Relevant Treaties ...................................................................................... 9

D. Disputes Regarding Allegations and Underlying Law ................................. 12

II. ANALYSIS ............................................................................................................ 16

A. General Principles of Extradition .................................................................. 18

B. The Authority to Conduct Extradition Proceedings ...................................... 23

C. Valid Extradition Treaties Exist .................................................................... 24

D. The Alleged Crimes Are Extraditable Under the Treaties ........................... 25

1. The Embezzlement Charges ....................................................................... 27

2. The Surveillance Charges ........................................................................... 31

E. Probable Cause Exists for Each Extraditable Charge .................................. 48

1. The Arrest Warrant and Panamanian Procedures .................................... 52

2. Immunity Defenses ..................................................................................... 64

3. Due Process .................................................................................................. 65

4. The Embezzlement Charges ....................................................................... 73

5. The Surveillance Charges ........................................................................... 82

III. CONCLUSION ..................................................................................................... 92

I. BACKGROUND

This matter is before the Court on the United States of America's (the "Government") motion [D.E. 46] for an order certifying the extradition of Ricardo Alberto Martinelli Berrocal ("Pres. Martinelli") on behalf of the Republic of Panama ("Panama"). Pres. Martinelli timely responded to the Government's motion on August 11, 2017 [D.E. 58] to which the Government replied on August 18, 2017. [D.E. 62]. Therefore, the Government's motion is now ripe for disposition. After careful consideration of the entire record, the evidence presented at the extradition hearings, along with the benefit of oral argument, and the papers applicable thereto, the Government's motion is GRANTED and the Court finds that Pres. Martinelli is extraditable for all four alleged offenses pursuant to the Treaty Between the United States of America and Panama Providing for the Extradition of Criminals, U.S.-Pan., May 25, 1904, 34 Stat. 2851 (the "Treaty"); the U.N. Convention Against Corruption, Dec. 9, 2003, S. Treaty Doc. No. 109-6, 2349 U.N.T.S. 41 (the "UNCAC"); and the Convention on Cybercrime, Jan. 7, 2004, Council of Eur., T.I.A.S. No. 13174, C.E.T.S. No. 185 (the "Budapest Convention").

A. Panama's Request for Extradition

This case involves an extradition request by Panama, approved by the United States Department of State, for the arrest and extradition of Pres. Martinelli - the former President of Panama. The Supreme Court of Panama has requested extradition on the grounds of alleged violations of Panamanian law that occurred while Pres. Martinelli was in office. Pres. Martinelli left Panama and traveled to the United States where he filed an application for asylum in 2015. While thatapplication remains pending, the Department of State and the United States Attorneys' Office here in Miami have now filed this action to authorize his extradition to Panama pursuant to multiple treaties between the United States and Panama.

Specifically, Pres. Martinelli's extradition is sought by Panama for trial on four charges: (1) interception of telecommunications without judicial authorization, in violation of Article 167 of the Criminal Code of Panama; (2) tracking, persecution, surveillance without judicial authorization, in violation of Article 168 of the same code; (3) embezzlement by theft and misappropriation, in violation of Article 338 of the same code; and (4) embezzlement of use, in violation of Article 341 of the same code. Harry Díaz ("Díaz"), a Justice of the Criminal Chamber of the Supreme Court of Justice of the Republic of Panama, issued an indictment against Pres. Martinelli for these offenses on October 9, 2015. After Pres. Martinelli failed to appear in court when summoned for a hearing on the charges, on December 21, 2015, the Supreme Court issued an order for Pres. Martinelli's arrest. Panama subsequently submitted a request to the United States for Pres. Martinelli's extradition.

Pursuant to Panama's extradition request, Pres. Martinelli was arrested in on June 12, 2017, in Coral Gables, Florida. He then filed an emergency motion to dismiss [D.E. 12], alleging that Panama had failed to comply with the requirement in the Treaty that it provide a warrant in support of its extradition request; he also filed multiple motions for release on bond. [D.E. 18, 24, 26, 34, 36]. The Government responded to these motions and filed a separate motionseeking Pres. Martinelli's detention. [DE 13, 15, 22, 32]. After holding a hearing on June 20, 2017, we denied Pres. Martinelli's motions and granted the Government's request for detention in an opinion issued on July 7, 2017. [D.E. 38]. The immediate motion pending before the Court arises from the Government's motion for extradition. [D.E. 46].

B. The Charges Against Pres. Martinelli

Justice Mejía Edward listed the charges that El Magistrado Fiscal intends to prove against Pres. Martinelli. [D.E. 13-1 at 15-25, ¶27]. According to the charges, Pres. Martinelli:

established an organized apparatus of power acting beyond the Social and Democratic State of Law, and through this apparatus of power instructions were given to officers of The National Security Council, who were fully aware of the illegality of these activities and without a judicial authorization undertook interceptions of electronic communications in various forms, surveillance and tracking of people, which they called targets, who belong to difference political, economic, civic groups and unions of the country, extending this systematic violation of human rights, in some cases, to family and friends of individuals subject to interceptions, surveillance and tracking; and that in order to achieve these activities outside the Constitution and the Law, the organization of State power led by Ricardo Alberto Martinelli Berrocal supplied the equipment, resources, and personnel necessary to achieve the aforesaid illicit activities, using State funds.

Id. at 15-16, ¶27(b). These alleged crimes occurred between 2012 and mid-May 2014, during the time that Pres. Martinelli was in office. Id. at 16, ¶27(c). According to the Government, "[a]n audit...