United States v. Knotek

• Decision Date: 03 June 2019
• Docket Number: No. 17-55572,17-55572
• Citation: 925 F.3d 1118
• Parties: UNITED STATES of America, Respondent-Appellee, v. Ivo KNOTEK, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

925 F.3d 1118

UNITED STATES of America, Respondent-Appellee,

v.Ivo KNOTEK, Petitioner-Appellant.

No. 17-55572

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2018 Pasadena, California

Filed June 3, 2019

Sonam A. H. Henderson (argued) and Kathryn A. Young, Deputy Federal Public Defenders; Hilary Potashner, Acting Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Respondent-Appellant.

John Joseph Lulejian (argued) and Amanda M. Bettinelli, Assistant United States Attorneys; Lawrence S. Middleton, Chief, Criminal Division; Nicola T. Hanna, United States Attorney; United States Attorney’s Office, Los Angeles, California; for Petitioner-Appellee.

Before: Richard A. Paez, Barrington D. Parker,^* and Richard R. Clifton, Circuit Judges.

PAEZ, Circuit Judge:

The federal government seeks to extradite a U.S. citizen, Ivo Knotek, to the Czech Republic so that he can serve a sentence for a nearly two-decades-old conviction in that country. We must decide whether there is legal authority for Knotek’s extradition pursuant to 18 U.S.C. § 3196, which addresses extradition of U.S. citizens, and, if so, whether his Czech conviction satisfies the dual criminality requirement.

We agree with the Sixth Circuit and nearly every district court that has considered the applicability of 18 U.S.C. § 3196 that, in the absence of a treaty authorization or prohibition, the statute confers discretion on the U.S. Department of State to seek extradition of U.S. citizens. See Bašic v. Steck , 819 F.3d 897, 899–900 (6th Cir. 2016), cert. denied , ––– U.S. ––––, 137 S. Ct. 196, 196 L.Ed.2d 157 (2016). We also agree with the district court that Knotek’s Czech conviction for attempted extortion qualifies as an extraditable offense and, therefore, affirm the district court’s denial of habeas relief.

I.

A.

The extradition treaty between the United States and Czech Republic ("Treaty") dates back to 1925, when the former state of Czechoslovakia still existed. See Treaty Concerning the Mutual Extradition of Fugitive Criminals, July 2, 1925, U.S.-Czech., 44 Stat. 2367 (U.S.T. Mar. 29, 1926). The two countries made minor amendments in 1935, adding more extraditable crimes and offenses. See Supplementary Extradition Treaty, Apr. 29, 1935, U.S.-Czech., 49 Stat. 3253 (U.S.T. Aug. 30, 1935). In 2006, the Treaty was amended again along with 21 other bilateral agreements with European Union member states, including the Czech Republic. See Extradition Agreement with the European Union, U.S.-E.U., Jun. 25, 2003, S. Treaty Doc. No. 109-14 (2006).

Under Article I of the Treaty, the United States and Czech Republic agree that they "shall," upon request, extradite "any person" found in their respective territories who is charged with or convicted of any crimes or offenses encompassed within the Treaty. Article VIII provides an exception to the general mandate: "neither of the High Contracting Parties shall be bound to deliver up its own citizens."¹

B.

Knotek was born in the former Czechoslovakia and, around 1977, he fled his home country to seek refuge on the basis of his anti-Communist political opinion. Knotek was granted refugee status in the United States, and he later naturalized as a U.S. citizen in 1985.

In 1999, while in Prague, Knotek was arrested on allegations that he had attempted to extort representatives from local companies in two separate schemes. In March 2001, the Prague Municipal Court found Knotek guilty of two attempts of criminal extortion in violation of the Czech Criminal Code sections 8(1) and 235(1), and imposed a sentence of five and a half years’ imprisonment, "indefinite deportation" from the Czech Republic, and a fine of 250,000 Czech Koruna ("CZK").² On appeal, the High Court of Prague affirmed Knotek’s conviction, but reduced his sentence to four years’ imprisonment based on the lack of any prior convictions in the country. In June 2002, the Supreme Court of the Czech Republic rejected Knotek’s extraordinary appeal. By that time, Knotek had left the Czech Republic.³

In 2003, following Knotek’s failure to pay the court-ordered fine, the Prague Municipal Court increased his sentence to four and a half years’ imprisonment. The court also issued an arrest warrant. In 2010, the Czech Republic’s Ministry of Justice formally contacted the U.S. Department of Justice to request Knotek’s extradition.

On August 30, 2013, the U.S. government sought and obtained from the magistrate judge a warrant for Knotek’s provisional arrest. The magistrate judge granted the government’s request and issued an order certifying Knotek as extraditable to the Czech Republic. To challenge the extradition order, Knotek filed a habeas petition in the district court, arguing that 18 U.S.C. § 3196 is an unconstitutional unilateral amendment of the Treaty by the Senate and that his Czech conviction did not fall within the Treaty.⁴ The district court denied the petition, concluding that 18 U.S.C. § 3196 is constitutional and that Knotek’s attempted extortion conviction falls within the Treaty. Knotek timely appealed.

II.

As we have stated on many occasions, "[e]xtradition is a matter of foreign policy," a diplomatic process over which the judiciary provides "limited" review. Vo v. Benov , 447 F.3d 1235, 1237, 1240 (9th Cir. 2006) (internal citations omitted). "The district court’s habeas review of an extradition order is limited to whether: (1) the extradition magistrate [judge] had jurisdiction over the individual sought, (2) the treaty was in force and the accused’s alleged offense fell within the treaty’s terms, and (3) there is ‘any competent evidence’ supporting the probable cause determination of the magistrate [judge]." Santos v. Thomas , 830 F.3d 987, 1001 (9th Cir. 2016) (en banc) (citations omitted). On review, "we stand in the same position as did the district court." Id .

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s denial of a habeas petition in extradition proceedings. Prasoprat , 421 F.3d at 1013 ; Santos , 830 F.3d at 1001.

III.

Knotek raises two issues on appeal. First, he contends that the government lacks authority to extradite him to the Czech Republic because the Treaty does not provide for the extradition of U.S. citizens and the relevant statute, 18 U.S.C. § 3196, cannot prevail over the Treaty. This is an issue of first impression for our court. Second, Knotek argues that his Czech conviction is not an extraditable offense.

A.

Extradition law is generally governed by "a combination of treaty law, federal statutes, and judicial doctrines dating back to the late nineteenth century." Santos , 830 F.3d at 990 (citing 18 U.S.C. §§ 3181 – 3196 ). The Supreme Court has long recognized that extradition treaties apply equally to U.S. citizens and to noncitizens, and that there is no principle of international law exempting U.S. citizens from extradition unless there is a provision to that effect in the relevant treaty. See Charlton v. Kelly , 229 U.S. 447, 467, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) ; see also Neely v. Henkel , 180 U.S. 109, 123, 21 S.Ct. 302, 45 L.Ed. 448 (1901) (noting that "[U.S.] citizenship does not give [the appellant] an immunity to commit crime in other countries").

The pertinent provision from the Treaty, unchanged since 1925, provides that "[u]nder the stipulations of this Treaty, neither of the High Contracting Parties shall be bound to deliver up its own citizens." The Treaty, however, must be read in conjunction with 18 U.S.C. § 3196, which provides:

If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met.

Knotek argues that section 3196 impermissibly amends the Treaty in violation of Article II of the Constitution, which requires the President’s initiation of a treaty or treaty amendment followed by a two-thirds vote of the Senate to ratify it.⁵ Alternatively, Knotek argues that the Treaty should prevail over section 3196 and bar his extradition under the "last-in-time" canon of statutory construction. We are not convinced by either argument.

1.

All parties agree that, under the Supreme Court’s decision in Valentine v. United States ex rel. Neidecker , the text of the Treaty—on its own—does not authorize the U.S. and Czech governments to extradite their own citizens. 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936). In Valentine , respondents were native-born U.S. citizens who were charged with committing crimes in France and argued that there was no authority to extradite them to that country. Id . at 6, 57 S.Ct. 100. The Court recognized that the power to extradite "is not confided to the Executive in the absence of treaty or legislative provision." Id . at 8, 57 S.Ct. 100. Looking to the then-relevant statute, the Court concluded that it did not confer extradition authority where an extradition treaty or convention did not independently provide for it. Id . at 9–10, 57 S.Ct. 100. The Court then turned to the U.S.-France extradition treaty, which contained a provision with essentially the same language as the Treaty here.⁶

Id . at 7, 10, 57 S.Ct. 100. On the basis of the treaty’s text and a comparison to other treaties with countries like Japan and Mexico, which explicitly conferred discretionary power to surrender U.S. citizens, id . at 12–17, 57 S.Ct. 100, the Court concluded that "the President is without power to surrender the respondents" because "the treaty with France fails to grant the necessary authority." Id . at 18, 57 S.Ct. 100. In light of Valentine , if we were dealing solely with the Treaty in this case, the federal government would lack authority to extradite Knotek.

We do not, however, apply the Treaty in isolation. In response...