Leiva v. Warden, 070819 FED11, 18-14328

Docket Nº:18-14328
Party Name:ANDRES FELIPE ARIAS LEIVA, Petitioner-Appellant, v. WARDEN, et al., Respondents-Appellees.
Judge Panel:Before MARCUS, GRANT, and HULL, Circuit Judges.
Case Date:July 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

ANDRES FELIPE ARIAS LEIVA, Petitioner-Appellant,


WARDEN, et al., Respondents-Appellees.

No. 18-14328

United States Court of Appeals, Eleventh Circuit

July 8, 2019

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:17-cv-23938-JLK

Before MARCUS, GRANT, and HULL, Circuit Judges.


The Colombian Supreme Court convicted Andres Arias Leiva of committing two crimes while he served as the country's Minister of Agriculture. Although Arias[1] attended his trial, he did not wait for the verdict; having anticipated a politically motivated conviction, Arias left for the United States, where he has lived ever since. Now Colombia wants him back. The United States plans to honor that request and extradite Arias under a treaty that the two countries signed in 1979. But while in prison pending his surrender to Colombia, Arias filed a petition for a writ of habeas corpus to block his extradition. The district court denied that petition.

Now on appeal, Arias's chief argument is that the United States cannot extradite him under the Extradition Treaty because it is not in effect. Arias is right that, in 1986, the Colombian Supreme Court nullified the domestic legislation that ratified the treaty and that as a result Colombia no longer relies on the treaty when sending fugitives to the United States. But the frailty in his argument is that our Executive Branch-not Arias and not this Court-gets to decide what impact, if any, the Colombian court's ruling had on the treaty's status as between the parties. And, according to the Department of State, both countries continue to recognize the compact as valid and in force. Under the separation of powers established in and demanded by our Constitution, the Judicial Branch cannot second-guess that political judgment call or indulge whatever our own views on the matter may be. We therefore affirm the district court's denial of Arias's petition for a writ of habeas corpus.



First, the facts. Arias served as Minister of Agriculture in President Alvaro Uribe's administration from 2005 to 2009. During that time, he ran a development program known as Agro Ingreso Seguro (AIS), which sought to modernize Colombia's irrigation system by providing subsidies to farmers. In support of that goal, the Ministry entered into three contracts with an organization called the Inter-American Institute for Cooperation on Agriculture (IICA)-although the point of that partnership remains in dispute. According to Arias, the Ministry sought the IICA's help with implementing scientific and technical endeavors; the current Colombian government claims that the IICA merely administered the program's funds. In any event, no one disputes that the program disbursed funds worth millions of dollars to Colombian farmers, making Arias one of the administration's most popular cabinet members.

In 2009, Arias resigned his post so that he could run for the presidency after Uribe's final term. He campaigned for his party's nomination against another former cabinet member, Juan Manuel Santos, who had served in the Uribe administration as Minister of Defense. Despite an early lead in the polls, Arias faltered after certain news reports accused him of diverting AIS funds to wealthy landowners in return for political patronage. Arias claims that Santos fueled these reports through his family-owned media outlets, which succeeded in boosting Santos's political standing. In the end, Arias lost the nomination to Santos, who won the general election and took office in 2010. From then on, Arias remained a prominent and vocal critic of the incoming government.

In 2011, the new administration's Attorney General charged Arias with two crimes based on his implementation of the irrigation subsidies program: (1) Conclusion of Contract Without Fulfilling Legal Requirements and (2) Embezzlement for Third Parties. For the first crime, the Colombian government alleged that Arias falsely designated contracts as "scientific and technical" in order to bypass a public bidding process. Colombian law normally requires government agencies to award contracts based on public bids but exempts projects that call for scientific and technical expertise. In those situations, the agency can negotiate directly with a given contractor from the start. According to the Colombian government, Arias abused this carveout to fast-track the subsidy program and ensure that his preferred contractor, the IICA, managed the process.

Next, the Colombian government claimed that Arias funneled millions in program subsidies to eleven families even though he knew that they did not qualify. He purportedly allowed these select applicants to subvert the grant process by "subdividing" their farms and submitting duplicate applications so that they could obtain more benefits than they deserved-that is, multiple subsidies for what had been a single property. In the Colombian government's telling, Arias knew about and sanctioned these illegal allotments to curry political favor in advance of his presidential run.

Arias was tried in the Colombian Supreme Court starting in June 2012. His trial lasted nearly two years and involved 57 witnesses, including the defendant himself. Arias, represented by counsel, disputed both charges. He argued, among other things, that the Ministry's contracts complied with the relevant procurement laws and that he had no hand in third-party attempts to manipulate the subsidy grant process. The court ultimately rejected those defenses, finding that Arias knowingly violated the public bidding requirement and actively facilitated the diversion of government funds.

Before the court could render that decision, however, Arias-fearing that he would be convicted as a political target-left the country. Given their rivalrous history, Arias had begun to suspect that President Santos had rigged the result of the trial to silence his political foe. To that end, Arias reached out to an American diplomat, who he claims helped pave the way for him to enter the United States. Arias arrived in this country in June of 2014. After he was followed by his wife and two children, he filed a petition for asylum-a petition that, to this day, remains pending. About one month later, the Colombian Supreme Court convicted Arias in absentia and sentenced him to 17 years in prison. Shortly following the conviction, Colombia asked the United States to extradite Arias so that he could "serve the sentence."


In response to Colombia's request, the United States filed a complaint for extradition in the district court under 18 U.S.C. § 3184. That statute authorizes a magistrate judge to certify an extradition charge when "there is a treaty or convention for extradition" and the magistrate judge "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty." 18 U.S.C. § 3184. The United States invoked the Extradition Treaty that it signed with Colombia in 1979 and ratified in 1982. See Extradition Treaty Between the United States of America and the Republic of Colombia, Colom.-U.S., Sept. 14, 1979, S. Treaty Doc. No. 97-8 (1981). Following a hearing, the magistrate judge issued an "Extradition Certification and Order of Commitment" which in turn authorized the government to detain Arias pending his surrender to Colombia.

Once a magistrate judge certifies an extradition, as happened here, extradition targets do not have the benefit of a direct appeal. See Martin v. Warden, Atlanta Pen., 993 F.2d 824, 827 n.3 (11th Cir. 1993). Fugitives detained in the United States can, however, obtain "limited" collateral review "by means of a petition for writ of habeas corpus," which is what Arias sought in the district court below. Noriega v. Pastrana, 564 F.3d 1290, 1295 (11th Cir. 2009). But even then, the habeas procedure "is not a means for rehearing the magistrate's findings." Afanasjev v. Hurlburt, 418 F.3d 1159, 1163 (11th Cir. 2005) (quoting Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir. 1980)). Instead, the district court reviews extradition orders to determine only (1) "whether the magistrate had jurisdiction," (2) "whether the offense charged is within the treaty," and (3) "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Martin, 993 F.2d at 828 (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)).

Given those limits, the "scope of habeas corpus review of a magistrate's order of extradition is quite narrow." Hill v. United States, 737 F.2d 950, 951 n.1 (11th Cir. 1984) (per curiam); see also Afanasjev, 418 F.3d at 1163 ("This Court has repeatedly noted 'that a district court's [habeas] review of a magistrate judge's issuance of a certificate of extraditability is narrow.'" (quoting Kastnerova v. United States, 365 F.3d 980, 984 (11th Cir. 2004))). Like the magistrate judge, district courts cannot "inquire into the guilt or innocence of the accused." Kastnerova, 365 F.3d at 987; see also Noeller v. Wojdylo, 922 F.3d 797, 803-04 (7th Cir. 2019) ("A United States court dealing with an extradition request for an accused is obliged to resist any temptation to judge the guilt or innocence of the accused."). Nor can they let policy judgments come into play; those determinations remain "an Executive function." Martin, 993 F.2d at 829.

In the face of these limitations, Arias argued to the district court that the magistrate judge lacked jurisdiction at the outset because the Treaty is not in force. The United States pointed out in response that the Treaty took effect on March 4, 1982, when the parties exchanged instruments of ratification. Arias nonetheless relied on a 1986 ruling by the...

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