In The Matter Of The Extradition Of Jonathan Octavio Nunez
| Decision Date | 26 January 2011 |
| Docket Number | CASE NO. 10-24020-MC-O'SULLIVAN |
| Parties | IN THE MATTER OF THE EXTRADITION OF JONATHAN OCTAVIO NUNEZ |
| Court | U.S. District Court — Southern District of Florida |
THIS MATTER came before the Court on Jonathan Octavio Nunez's Motion to Dismiss Complaint and Quash Warrant Requesting Extradition (DE # 26). Having reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that Jonathan Octavio Nunez's Motion to Dismiss Complaint and Quash Warrant Requesting Extradition (DE # 26) is DENIED for the reasons set forth herein.
This proceeding stems from Jonathan Octavio Nunez's (hereinafter "Nunez") alleged shipment into Japan approximately 30, 000 MDMA (ecstacy) tablets, 20, 000 mixed MDMA/methamphetamine tablets and 136 grams of methamphetamine. (DE # 1 at 2.) The drug shipment was divided into two parcels. Id. Nunez is accused of recruiting two former U.S. Navy crew members, William Jenkins (hereinafter "Jenkins") and Babe Cole (hereinafter "Cole") to receive the parcels. (DE # 18 at 98, 163.) Nunez was discharged from the United States Navy after testing positive for drugs. (DE # 16 at 2 n.1.) The former crew members worked as civilian employees at the U.S. Naval Base in Yokosuka, Japan. (DE # 18 at 49.) The parcels were to arrive at the naval base. Id. at 148, 110.
The drug packages arrived in Japan on July 29, 2004 and were seized by Japanese Customs. Id. at 41, 68. Tokyo Regional Immigration Bureau's entry/exit records show that Nunez left Japan on July 12, 2004 and returned to Japan on July 29, 2004. Id. at 215. The parties have not presented evidence of Nunez's whereabouts during this period. According to statements of the former crew members, Nunez telephoned them on July 29, 2004 and was advised that they had not received the packages. Id. at 100, 116, 122, 157. Cole stated that Nunez called him again on August 2, 2004 and August 3, 2004 and he advised Nunez that the packages were not received. Id. at 100, 116. On August 3, 2004, Nunez booked a round-trip flight to the United States. Id. at 73. Cole and Jenkins were arrested on August 5, 2004 in connection with the intercepted drug packages. Id. at 49, 152. Nunez's flight departed from Japan on August 6, 2004. Id. at 73, 215. Nunez was due to return to Japan on September 6, 2004 but did not return as scheduled. Id. at 40, 73; (DE # 28 at 1157).
An arrest warrant for Nunez was issued by a judge in Japan on August 11, 2004 and the warrant was subsequently renewed 24 times. (DE # 28 at 1157.) Nunez traveled several times outside the United States after he left Japan in August of 2004. (DE # 26 at 6.) Nunez indicates that while he was told by Customs that he had an issue in Japan, they never told him he had a pending arrest warrant. Id.
On November 5, 2010, this Court issued a complaint for the provisional arrest of Nunez with a view towards extradition at the request of the United States, acting onbehalf of the Government of Japan. (DE # 1.) The complaint indicates that the Government of Japan issued a warrant for Nunez's arrest for his alleged involvement in a conspiracy to illicitly import narcotics into Japan for profit-making, in violations of Item 1, Paragraph 1 and Paragraph 2 of Article 65 of the Narcotics and Psychotropics Control Law; and of Paragraphs 1 and 2 of Article 41 of the Stimulants Control Law. Id. On November 15, 2010, Nunez was arrested pursuant to an arrest warrant issued by this Court in conjunction with the issuance of the extradition complaint. (DE # 17.)
On December 7, 2010, Nunez moved to dismiss the complaint for extradition and quash the warrant requesting extradition. (DE # 26.) On December 23, 2010, the government filed its response. (DE # 34.) On January 5, 2011, Nunez filed his reply to the government's response to his motion to dismiss. (DE # 40.)
Nunez seeks to dismiss the extradition complaint on the ground that the statute of limitations has run because the Government of Japan has not issued an indictment or an information within the permissible time period. Pursuant to Article IV(1.)(3) of the extradition treaty between the United States and Japan, an "Extradition shall not be granted... when the prosecution of the offense for which extradition is requested would be barred by lapse of time, under the laws of the United States." (DE # 18 at 1011.) 18 U.S.C. § 3282 provides that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." The government agrees with Nunez that 18 U.S.C. § 3282 is the applicable provision for thestatute of limitations in this case. Further, the parties do not dispute that the conduct at issue took place in July-August of 2004. Nunez argues that the Japanese authorities should have issued an indictment by August of 2009 but that they have not done so. The government argues that the statute of limitations has been tolled due to Nunez's flight from justice and the issuance of an arrest warrant for Nunez in Japan.
The government argues that the statute of limitations stopped running when Japanese authorities issued its initial arrest warrant for Nunez on August 11, 2004. Since the parties do not dispute that the conduct at issue took place between July and August of 2004 and the initial arrest warrant was issued on August 11, 2004, there would be no question as to the timeliness of Japan's extradition request if the issuance date of the arrest warrant is used to determine whether the statute has run.
Nunez argues that since the extradition treaty between the United States and Japan states that an extradition request from Japan should not be granted when the prosecution of the offense for which the extradition is requested would be time barred under United States law and the applicable statute, 18 U.S.C. § 3282, provides that an indictment or information needs to be issued within five years of the offense conduct, the Court must look at the date of any indictment, not the date of the arrest warrant. (DE # 18 at 10-11.) However, the government argues that Nunez's argument that he has not been charged by a Japanese indictment is not well taken given that the Japanese instrument translated in the extradition materials as an "indictment" retroactively loses its validity if it is not served on the accused within two months and is an instrument that is distinguishable from what is understood to be an indictment foundin the United States. The government argues that the Japanese procedures do not mirror that of the United States but have variances such as charging absent persons initially by arrest warrant and reserving indictment until the person is in custody to avoid running into an expired indictment if the person cannot be located.1 Nunez argues that it is not necessary for the Court to examine the procedural requirements of Japan because the documents provided by the Japanese government specifically indicate that Nunez has not yet been indicted.2
The government cites in support of its position Ninth Circuit case law finding a Mexican arrest warrant to be equivalent to an indictment for purposes of tolling the statute of limitations in the context of an extradition. See Sainez v. Venables, 588 F.3d 713, 715-17 (9th Cir. 2009); In re Extradition of Sainez, No. 07-MJ-0177-JMA, 2008 WL 366135, at *7-8 (S.D. Cal. Feb. 8, 2008). Similar to the instant case, the foreign government in Sainez issued an arrest warrant shortly after the commission of theoffense and the extraditee argued that the arrest warrant did not toll the statute of limitations because it does not constitute an "indictment" or "information" as set out in 18 U.S.C. § 3282. See In re Extradition of Sainez, 2008 WL 366135, at *7-8. The Sainez district court rejected the extraditee's argument and explained that the extraditee "[i]n essence... asks th[e] Court to apply the U.S. statute of limitations, which incorporates indictments, informations and common law concepts, to the Mexican judicial system, in which these concepts are unknown." Id. The Sainez district court went on to say that "the proper calculation in applying the United States statute of limitations is from the date of the alleged offense to the date on which charges were instituted under the legal procedure of the requesting state" and determined that the statute of limitation was tolled because the arrest warrant issued within five years of the offense conduct. Id.
The Ninth Circuit affirmed the Sainez district court's determination that the Mexican arrest warrant tolled the statute of limitations even though the text of 18 U.S.C. § 3282 refers to an indictment or information. See Sainez, 588 F.3d at 717. The Ninth Circuit examined a Second Circuit opinion and the Restatement of Foreign Relations Law and stated the following, Id.; see Restatement (Third) of Foreign Relations Law § 476, cmt. e (1987) ("For purposes of applying statutes of limitation to requests for extradition... the period is generally calculated from the time of the alleged commission of the offense to the time of the warrant, arrest, indictment, or similar step in the requesting state, or of the filing of the request for extradition, whichever occurs first."). The Ninth Circuit explained that its determination that the Mexican arrest warrant is a functional equivalent of a United States indictment was...
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