United States v. Trabelsi

• Decision Date: 17 January 2017
• Docket Number: No. 15-3075,15-3075
• Citation: 845 F.3d 1181
• Parties: UNITED STATES of America, Appellee v. Nizar Ben Abdelaziz TRABELSI, also known as Nizar Ben Abdelaziz Trabelsi, also known as Abu Qa'qa, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

845 F.3d 1181

UNITED STATES of America, Appellee

v.Nizar Ben Abdelaziz TRABELSI, also known as Nizar Ben Abdelaziz Trabelsi, also known as Abu Qa'qa, Appellant

No. 15-3075

United States Court of Appeals, District of Columbia Circuit.

Argued May 17, 2016

Decided January 17, 2017

Mary Manning Petras, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Elizabeth Trosman, Assistant U.S. Attorney.

Before: Rogers, Pillard and Wilkins, Circuit Judges.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge Pillard.

Wilkins, Circuit Judge:

Nizar Trabelsi is a Tunisian national convicted in Belgium for a variety of crimes, including attempting to destroy a military base. While Trabelsi was serving his sentence for his convictions in Belgium, a grand jury in the United States indicted Trabelsi with various conspiracy and terrorism offenses. The United States requested that Belgium extradite Trabelsi. Trabelsi challenged that request in Belgium, contending that his extradition would violate the Extradition Treaty Between the United States of America and the Kingdom of Belgium (the "Extradition Treaty" or "Treaty"), Apr. 27, 1987, S. TREATY DOC. NO. 104-7, in view of the non bis in idem principle. Belgium disagreed and extradited Trabelsi to the United States. Trabelsi renewed his challenge here, moving the District Court to dismiss the indictment for violating the Treaty provision. In opposition, the Government argued that the District Court lacked jurisdiction to review the extradition decision. The District Court concluded that it had jurisdiction to review the decision but denied Trabelsi's motion on the merits. We conclude that we have jurisdiction to hear this appeal and review Trabelsi's extradition.

Trabelsi presents four arguments on appeal. First, he argues that the District Court erred in deferring to Belgium's decision on his double-jeopardy claim. He next contends that, absent this deference, the District Court should not have applied the test articulated in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to compare the offenses charged in the U.S. indictment with the offenses of which he was convicted in Belgium. Even assuming that Blockburger applies, Trabelsi submits that the District Court erred in finding that the charges in the U.S. indictment were not the same as his Belgian convictions. Finally, Trabelsi urges this Court to conclude that dismissal of his indictment is the appropriate remedy.

Trabelsi's arguments are unpersuasive. The scope of our review is limited, requiring deference to Belgium's decision to extradite Trabelsi. This deference creates a rebuttable presumption that Trabelsi's extradition, and Belgium's analysis in deciding to extradite him, comports with the terms of the Treaty. See United States v. Campbell , 300 F.3d 202, 209 (2d Cir. 2002). Although Trabelsi is correct that a Blockburger analysis is not required under the terms of the Treaty, his argument that the Treaty requires a conduct-oriented test is not supported by the text of the Treaty, which refers to "offenses." As a result, we need not reach his final two arguments, and we affirm the District Court's order denying Trabelsi's motion to dismiss the indictment.

I.

On September 13, 2001, Trabelsi was watching television at his apartment in Ucle, Belgium when the Belgian police arrived and arrested him. While searching his apartment, the police discovered an Uzi submachine gun and a list of chemicals used to manufacture explosives. The police also searched a restaurant owned by a co-conspirator's family, and uncovered chemicals that could be used to make explosives. On September 14, 2001, Trabelsi was served with an arrest warrant, charging him with "conspiracy, destruction by explosion, possession of weapons of war, and belonging to a private militia." J.A. 96. Belgian courts convicted Trabelsi, and on September 30, 2003, he was sentenced to ten years in prison "for, among other things, having attempted to destroy the military base of Kleine-Brogel with explosives, having committed forgery, and having been the instigator of a criminal association formed for the purpose of attacking people and property." Id.

On April 7, 2006, while Trabelsi was serving his sentence in Belgium, a grand jury in the United States indicted him for various offenses. A superseding indictment (hereinafter, the "indictment") was issued on November 16, 2007. The indictment charged Trabelsi with conspiracy to kill United States nationals outside of the United States in violation of 18 U.S.C. §§ 2332(b)(2) and 1111(a) (Count 1); conspiracy and attempt to use weapons of mass destruction against nationals of the United States while such nationals were outside of the United States, and against property used by the United States and a department and agency of the United States in violation of 18 U.S.C. §§ 2332a and 2 (Count 2); conspiracy to provide material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. § 2339B (Count 3); and providing material support and resources to a foreign terrorist organization, specifically al Qaeda, in violation of 18 U.S.C. §§ 2339B and 2 (Count 4).

The United States requested that Belgium extradite Trabelsi on April 4, 2008, attaching an affidavit from the Department of Justice describing the offenses, and their elements, for which the United States sought to prosecute him. Trabelsi challenged the extradition request in Belgium, arguing that his extradition would violate certain provisions of the Extradition Treaty. Specifically, Trabelsi argued that his extradition would violate Article 5 of the Treaty, which provides that "[e]xtradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested." S. TREATY DOC. NO. 104-7. On November 19, 2008, the Court Chamber of the Court of First Instance of Nivelles held that the United States arrest warrant was enforceable, except as to the overt acts labeled numbers 23, 24, 25, and 26 in the indictment. The Court of Appeals of Brussels affirmed this decision on February 19, 2009. On June 24, 2009, the Belgian Court of Cassation affirmed the Court of Appeals.

The Belgian Minister of Justice, who has final authority over extradition requests, granted the United States' request on November 23, 2011. The Minister rejected the position that the non bis in idem principle is implicated by Article 5, concluding instead that the narrower offense-based "double jeopardy" principle applies. The Minister further rejected the limitation on overt acts, explaining that they were "not the offenses for which an extradition [was] requested" because "an overt act is an element (of fact, or factual), an act, a conduct or a transaction which in itself cannot automatically be qualified as an offense." Extradition Decision of the Minister of Justice, Kingdom of Belgium 11 (Nov. 23, 2011) (hereinafter "Min. Justice Dec."). By application, Trabelsi appealed the Minister's decision to the Belgian Council of State, which also concluded that the United States offenses are different and that " ‘overt acts' constitute elements ... to determine whether [Trabelsi] is guilty or not guilty," and rejected his application on September 23, 2013. Council of State, Div. of Admin. Litig., Sept. 23, 2013, 29 (Belg.). Belgium extradited Trabelsi to the United States on October 3, 2013. He was arraigned the same day.

On September 15, 2014, Trabelsi moved to dismiss the indictment for violating the Extradition Treaty. He argued, inter alia , that his extradition violated Article 5 of the Treaty because Belgium had already tried and convicted him "for the offense for which extradition was requested." Motion to Dismiss at 9-10 (quoting Extradition Treaty, Article 5).¹ After a hearing on September 30, 2015, the District Court denied Trabelsi's motion in an opinion and order on November 4, 2015. United States v. Trabelsi , Criminal Action No. 06-89 (D.D.C. Nov. 4, 2015). The District Court concluded that Trabelsi had standing to challenge his extradition, id. at 4-5 n.1, and that it had jurisdiction to review his extradition, id. at 7-11. Using the analysis articulated in Blockburger , 284 U.S. 299, 52 S.Ct. 180, the District Court determined that Trabelsi was not charged with the same offenses in the indictment for which he was tried and convicted in Belgium, J.A. 754-64. Trabelsi appeals, and our standard of review is de novo , see McKesson Corp. v. Islamic Republic of Iran , 539 F.3d 485, 488 (D.C. Cir. 2008) ; United States v. Duarte – Acero , 208 F.3d 1282, 1284 (11th Cir. 2000).

II.

A.

Neither Trabelsi nor the Government challenges this Court's authority to decide Trabelsi's appeal of the denial of his motion to dismiss the indictment. However, "we have an independent obligation to consider the issue" because "there has not yet been a final judgment in the district court." United States v. Ginyard , 511 F.3d 203, 208 (D.C. Cir. 2008).

"In the absence of a final judgment, this court generally lacks jurisdiction to hear a challenge to a decision of a district court." Id. (citations omitted). However, in Abney v. United States , the Supreme Court held that "a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds ... fall[s] within" the collateral order exception to the final-judgment rule. 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The Court reasoned that "such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim" because "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant...