United States v. Mompremier
Decision Date | 30 September 2022 |
Docket Number | 21-cr-0198 |
Parties | UNITED STATES OF AMERICA, Plaintiff, v. ALEX MOMPREMIER, Defendant. |
Court | U.S. District Court — Eastern District of Wisconsin |
ORDER ADOPTING REPORT AND RECOMMENDATION
On September 28, 2021, a grand jury returned a four-count indictment against three defendants, including Alex Mompremier, who was charged in counts one, two, and four. (ECF No. 1.) Count One alleged Mompremier conspired with others to distribute 5 kilograms or more of cocaine intending, knowing or having reasonable cause to believe that the cocaine would be unlawfully imported into the United States in violation of 21 U.S.C. §§963, 959(a) and 960(b)(1)(B). Count Two alleged he distributed 5 kilograms or more of cocaine, intending, knowing, or having reasonable cause to believe that the cocaine would be unlawfully imported into the United States, in violation of 21 U.S.C §§959(a) and 960(b)(1)(B), and 18 U.S.C. §2. Count Four alleged he carried firearms during and in relation to the drug trafficking crimes alleged in Counts One and Two in violation of 18 U.S.C. §§924(c)(1)(A)(i) and 2. (Id.) The offenses are each alleged to have “begun outside the jurisdiction of any particular Sate or district of the United States.” (Id.)
On March 29, 2022, Mompremier was arrested in Haiti and on May 9, 2022, he was brought to this district to face prosecution. (ECF No. 26 at 2.) Mompremier moved to dismiss the indictment arguing his arrest was illegal because it violated the extradition treaty between the United States and Haiti and constituted outrageous governmental conduct. (ECF. No. 24 at 5-9.) Mompremier also argued that 18 U.S.C. §924(c) “does not apply abroad.” (Id. at 10.) In the alternative, Mompremier argued that under 18 U.S.C §3238, venue should be transferred to the District of Columbia or to the District of Puerto Rico. (Id. at 16, 19-21.) The motion was briefed by the parties and on July 28, 2022, Magistrate Judge William E. Duffin filed a Report and Recommendation that the motion be denied. (ECF No. 29.) On August 4, 2022, Mompremier filed written objections to the report. (ECF No. 31.) The government filed a response to the objections on August 10, 2022. (ECF. No. 32.) As discussed below, the Court adopts Magistrate Judge Duffin's recommendation in its entirety and accordingly, will deny Mompremier's motion. In addition, because the Court resolves all disputed issues based solely on the pleadings, an evidentiary hearing is not necessary.
When reviewing a magistrate judge's recommendation, the district judge must review de novo the recommendations of the magistrate judge to which a party timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b)(2), (3). The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. §636(b)(1).
Mompremier objects to four aspects of the magistrate judge's report. First, Mompremier challenges the magistrate judge's determination that Mompremier's arrest did not violate the extradition treaty between the United States and Haiti. Second, he objects to the conclusion that the Seventh Circuit does not recognize an “outrageous government misconduct” exception to the Ker-Frisbie doctrine. Third, Mompremier contends the magistrate judge erred in ruling that 18 U.S.C. §924(c) applies extraterritorially. Fourth and finally, Mompremier objects to the magistrate judge's determination that venue is proper in the Eastern District of Wisconsin under 18 U.S.C §3238 and, therefore, the case should not be transferred to the District of Columbia or to the District of Puerto Rico.
The Ker-Frisbie doctrine “holds that a criminal defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence in the relevant jurisdiction - here, the United States.” U.S. v. Arbane, 446 F.3d 1223, 1225 (11th 2006) (citing Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952)). Once the defendant has been transferred from Haiti to the Eastern District of Wisconsin, the Ker-Frisbie doctrine permits his trial in this district for the offenses alleged in the indictment. Mompremier claims that the Ker-Frisbie doctrine does not apply in two circumstances: where a treaty was violated in bringing the defendant to the United States or in cases of outrageous government misconduct. Neither claimed exception helps Mompremier here.
Mompremier argues that his transfer to the United States and this district violates the U.S.-Haiti Extradition Treaty. See U.S.-Haiti Extradition Treaty: Treaty between the United States and the Republic of Haiti for the mutual extradition of criminals, 34 Stat. 2858, Aug. 9. 1904 (the “Treaty”). More particularly, he contends that because the Treaty does not explicitly provide for drug trafficking offenses to be extradited, the Treaty serves as a limitation on the offenses that the United Sates can prosecute a Haitian national. (ECF. No. 31 at 3.) The Treaty, however, is not the only mechanism by which a Haitian national may be lawfully transferred to the United States. “An extradition treaty constitutes one way in which a country may gain custody of a national of another country for the purpose of prosecution, but it is not the only way.” United States v. Castillo, 568 Fed.Appx. 774, 782 (11th Cir. 2014). In addition, “[f]or extradition to be the sole method of transfer, the treaty must expressly prohibit any other method.” United States v. Gardiner, 279 Fed.Appx. 848, 850 (11th Cir. 2008) (emphasis added). Thus, “absent such a specific prohibition, even after instigation of formal extradition, the U.S. government may act to obtain custody of the defendant through other channels without invoking or violating an extradition treaty.” United States v. Herbert, 313 F.Supp.2d 324, 330 (S.D.N.Y. 2004) (citing Kasi v. Angelone, 300 F.3d 487, 499 (4th Cir. 2002)).
The Treaty states that “[n]either of the Contracting Parties shall be obliged to deliver up its own citizens.” See U.S.-Haiti Extradition Treaty, Art. IV. This provision, however, does not express an affirmative agreement that extradition is the exclusive method for obtaining custody. The magistrate judge noted that Mompremier's arrest and transport to this district would violate the Treaty only if the Treaty explicitly prohibited it or if the treaty explicitly stated that the only way the United States could take him into custody was through extradition. As the magistrate judge correctly noted, the Treaty does neither. (ECF No. 29 at 7-8.). The magistrate judge also relied on a case from the Eleventh Circuit expressly holding that the Treaty does not limit the United States to extradition as a means for obtaining custody of Haitian nationals. Philippe v. United States, No. 19-10323-D, 2019 WL 12660977, at *1 ) (“the extradition treaty between the United States and Haiti does not preclude other methods of securing a defendant's presence in the United States”). This authority is persuasive here.
The government also reports, and Mompremier does not dispute, that the Haitian authorities transferred him to the custody of the United States upon the request of the United States. (ECF No. 32 at 5.) The Treaty “contains no prohibition against procuring the presence of an individual outside the terms of the treaty - let alone one barring the signatories from informally cooperating with each other as they did in this case.” United States v. Mejia, 448 F.3d 436, 443 (D.C. Cir. 2006) (addressing the U.S.-Panama Treaty). Because Mompremier was not “extradited” to the United States under the provisions of the Treaty, the legal requirements of the Treaty do not govern. See United States v. Abdalla, 317 F.Supp.3d 786, 793 n.3 (S.D.N.Y 2018) ().
Mompremier next argues that the Seventh Circuit's “outrageous conduct” case law runs counter to Supreme Court precedent and must be rejected. (ECF. No. 31 at 5.) “Outrageous governmental conduct” is one of the exceptions to the Ker-Frisbie doctrine. The magistrate judge correctly determined that the Seventh Circuit does not recognize an “outrageous government misconduct” exception to the Ker-Frisbie doctrine. See United States v. Mitchell, 957 F.2d 465, 470 (7th Cir. 1992) (); see also United States v. Smith, 792 F.3d 760, 768 (7th Cir. 2015) (); United States v. Stallworth, 656 F.3d 721, 730 (7th Cir. 2011) ().
Moreover even if such an exception existed in the Seventh Circuit or under Supreme Court precedent, the magistrate judge correctly concluded that the defendant failed to allege any facts showing that his arrest was an example of “outrageous conduct.” (ECF No. 29 at 8-9.) The Court declines to address Mompremier's argument that Mompremier argues that the Mansfield Amendment, which prohibits U.S. officers from directing arrests in foreign countries, informs the standard of conduct. In this case, the defendant was arrested in Haiti by the Haitian National Police, transferred into the custody of the United States at the...
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