United States v. Trabelsi
| Citation | 28 F.4th 1291 |
| Decision Date | 25 March 2022 |
| Docket Number | C/w 21-3009,No. 20-3028,20-3028 |
| Parties | UNITED STATES of America, Appellee v. Nizar TRABELSI, also known as Nizar Ben Abdelaziz Trabelsi, also known as Abu Qa'qa, Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Celia Goetzl, Assistant Federal Public Defender, argued the cause for appellant. On the briefs were A.J. Kramer, Federal Public Defender, and Sandra Roland, Assistant Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.
Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Chrisellen R. Kolb, Assistant U.S. Attorneys.
Before: Wilkins, Rao and Jackson* , Circuit Judges.
Belgium extradited Nizar Trabelsi, a Tunisian national, to stand trial in the United States on terrorism charges in 2013. Eight years later, that trial has yet to take place. This Court has adjudicated Trabelsi's claim once before, affirming the District Court's denial of his motion to dismiss the indictment. United States v. Trabelsi , 845 F.3d 1181, 1184 (D.C. Cir. 2017). Then, Trabelsi argued that his extradition violated the Extradition Treaty between the United States and Belgium because the U.S. indictment charged the same offenses for which he was convicted in Belgium. Now, Trabelsi appeals the District Court's denial of his motions to reconsider dismissing the indictment in light of intervening, and conflicting, Belgian legal developments.
Trabelsi challenges the District Court's denial of his motions on three grounds. First, he contends that the Belgian court decisions and official communications constitute significant evidence that merit reconsideration of his motion to dismiss. He argues next that the District Court should have deferred to the Belgian courts’ recent decisions interpreting his 2011 Extradition Order. And finally, he asserts that the District Court should have compared the offenses in the U.S. indictment to the offenses for which he was convicted in Belgium.
The Belgian legal developments Trabelsi invokes do not constitute significant new evidence that would warrant disturbing this Court's 2017 decision. As a result, he has failed to meet the significantly high burden for departing from the law of the case. We therefore affirm.
We assume familiarity with the facts of this case, as recounted in our prior opinion, Trabelsi , 845 F.3d at 1184–85, and relate them only as relevant to the present appeal. In 2001, Trabelsi was arrested, indicted, and convicted in Belgium for attempting to destroy the Kleine-Brogel military base. While serving a ten-year sentence in Belgium, a grand jury in the United States indicted Trabelsi on charges of conspiracy to kill United States nationals outside of the United States; conspiracy and attempt to use weapons of mass destruction; conspiracy to provide material support and resources to a foreign terrorist organization; and providing material support and resources to a foreign terrorist organization. On April 4, 2008, the United States issued an extradition request, pursuant to the Extradition Treaty between the U.S. and Belgium (the "Extradition Treaty" or "Treaty").
On November 19, 2008, the Court Chamber of the Court of First Instance of Nivelles issued an exequatur, or enforcement order, regarding Trabelsi's extradition, the first in a long line of Belgian court decisions. Under Article 5 of the Treaty, an individual may not be extradited if he has been found guilty, convicted, or acquitted in the Requested State for the same offense, known as the non bis in idem ("not twice in the same") rule. S. TREATY DOC. NO. 104-7 (1987). The Court of First Instance found that the arrest warrant was enforceable, except as to Overt Acts 23, 24, 25, and 26 as referenced in the indictment,1 due to their overlap with the offenses Trabelsi was convicted of in Belgium. The Brussels Court of Appeal and the Belgian Court of Cassation, that country's court of last resort, both affirmed the Court of First Instance's decision.
The Belgian Minister of Justice, who represents the Belgian government in extradition proceedings, issued the Extradition Order ("Order") on November 23, 2011. In the Order, the Minister defined an overt act as "an element (of fact or factual), an act, a conduct or a transaction which in itself cannot automatically be qualified as an offense" and concluded that the United States would not violate Article 5 of the Treaty by relying on the same "overt acts" or factual elements in prosecuting distinct offenses from those charged in Belgium. J.A. 554 (). On review of the Minister's decision, the Belgian Council of State denied Trabelsi's request to stay the extradition and similarly concluded that the Overt Acts were merely constitutive elements of his indictment. Belgium extradited Trabelsi to the United States on October 3, 2013.
In the United States, Trabelsi moved to dismiss the indictment, arguing that his extradition violated the Treaty. In response, the Belgian Embassy in Washington, D.C. issued a diplomatic note ("First Diplomatic Note" or "Note"), explaining that the Order "is the decision by the Belgian government that sets forth the terms of Mr. Trabelsi's extradition to the United States" and "makes clear that Mr. Trabelsi may be tried on all of the charges set out in that indictment." J.A. 680. The Note stipulated that the prosecution was entitled to offer facts related to Overt Acts 23–26, per the Order. Id. The District Court agreed with the Minister of Justice over the judicial authorities, denying Trabelsi's motion because he had failed to demonstrate that he was prosecuted for the same offenses in Belgium and the United States. United States v. Trabelsi , No. 06-89, 2015 WL 13227797, at *1 (D.D.C. Nov. 4, 2015) (" Trabelsi I "). We affirmed the District Court's ruling on different grounds, Trabelsi , 845 F.3d at 1184. (" Trabelsi II "). We articulated a standard under which we "presume, absent evidence to the contrary, that the extraditing nation has complied with its obligations under the treaty and that the extradition is lawful" and found an offense-based analysis, rather than the Blockburger test, was the appropriate one to apply. Id. at 1184, 1186. Accordingly, we concluded that the Extradition Order's offense-based analysis reasonably construed the Treaty. Id. at 1190–92.
As his challenge to his extradition played out in the American courts, Trabelsi continued to pursue relief in Belgium. These Belgian legal proceedings—particularly four judicial decisions and various legal filings and other communications—are what give rise to Trabelsi's current claims. First, the Court of First Instance rejected Trabelsi's requests both to halt the Belgian state from cooperating with the American authorities and to inform the American courts that the extradition proceedings violated Article 5 of the Treaty, due to their inclusion of the four Overt Acts. Trabelsi promptly appealed. On August 8, 2019, the Brussels Court of Appeal reversed, finding that the exequatur would not allow for the United States to prosecute Trabelsi for the four Overt Acts discussed and, as a practical matter, ordering the Belgian state to notify the U.S. authorities of its ruling. It stopped short of ordering Belgium to halt cooperation with the United States.
On November 13, 2019, the Belgian Embassy in Washington, D.C. issued another diplomatic note ("Second Diplomatic Note"), explaining that the Court of Appeal's August 2019 judgment was contrary to Belgium's Extradition Order and "therefore contrary to the clear wording of article 5 of the Treaty." J.A. 1405. The Second Diplomatic Note describes the Extradition Order as "the decision by the Belgian government that sets forth the terms of Mr. Trabelsi's extradition to the United States" and asserts "that any similarity between the United States case and the Belgian case does not give rise to any bar on his being tried on the charges in that [American] indictment." J.A. 1406. Further, the Note states that under the Treaty, "the Minister of Justice has sole authority to decide on a foreign extradition request since extradition is traditionally intergovernmental cooperation." Id.
Second, on February 26, 2020, the Court of First Instance ordered the Belgian state to notify the appropriate American authorities that Trabelsi could not be prosecuted for the four Overt Acts but denied his request to inform the American authorities that his prosecution violated the non bis in idem principle. The Belgian state appealed this judgment. Nevertheless, on March 5, 2020, the Ministry of Justice complied with that court order, formally notifying the Department of Justice of the Court of First Instance's judgment.
Based on the August 8, 2019 Brussels Court of Appeal judgment, Trabelsi moved for the District Court to reconsider its motion to dismiss the indictment and compel compliance with his view of Article 5 of the Treaty, a view shared by Belgium's judicial authority. In March 2020, the District Court denied the motion. United States v. Trabelsi , No. 06-cr-89, 2020 WL 1236652, at *1 (Mar. 13, 2020) (" Trabelsi III "). The District Court found that the D.C. Circuit "was aware of the difference of opinions held by [the] Belgian Minister of Justice and Belgian judiciary." Id. at *12. Thus, "Trabelsi cannot reasonably maintain that the August 8, 2019 and February 26, 2020 decisions made available any new, and previously unavailable, line of argument." Id. The Court held that Trabelsi had offered no evidence to support reconsidering the Circuit's interpretation of the Extradition...
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