US v. Lehder-Rivas, 81-82-Cr-J-12.

• Decision Date: 31 August 1987
• Docket Number: No. 81-82-Cr-J-12.,81-82-Cr-J-12.
• Citation: 668 F. Supp. 1523
• Parties: UNITED STATES of America v. Carlos Enrique LEHDER-RIVAS.
• Court: U.S. District Court — Middle District of Florida

668 F. Supp. 1523

UNITED STATES of America v. Carlos Enrique LEHDER-RIVAS.

No. 81-82-Cr-J-12.

United States District Court, M.D. Florida, Jacksonville Division.

August 31, 1987.

Robert W. Merkle, U.S. Atty., Ernst D. Mueller, Asst. U.S. Atty., Jacksonville, Fla., for the Government.

Edward R. Shohat, Miami, Fla. and Jose M. Quinon, Coral Gables, Fla., for defendant Lehder.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT LEHDER'S MOTION TO ENFORCE THE RULE OF SPECIALITY, ETC.

MELTON, District Judge.

This cause is before the Court on Defendant Lehder's Motion to Enforce the Rule of Speciality and Abate Prosecution on Count XII of the Indictment, filed June 19, 1987, and argued before this Court on July 21, 1987. Count XII charges Lehder with engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. sec. 848. Lehder alleges, in substance, that the Decree of Extradition issued by the Government of Colombia does not authorize prosecution for the CCE charge. Lehder relies on the principle of international law known as the "rule of speciality" to support his motion to abate prosecution. The government filed a response opposing the motion on July 6, 1987. Lehder replied to the government's response on July 14, 1987, and (by leave of the Court) the government submitted a rejoinder to Lehder's reply on August 14, 1987.

Defendant Lehder is a citizen of Colombia. After his indictment by a grand jury in this country, the government sought extradition of Lehder to stand trial on eleven of the twelve charges in the indictment.¹ Pursuant to the terms of the Extradition Treaty Between the United States and the Republic of Colombia, signed September 14, 1979, and the domestic law of Colombia, the Colombian Supreme Court of Justice reviewed the extradition request. Lehder was represented by counsel before that tribunal, raising several objections to the extradition request. On November 29, 1983, the Colombian Supreme Court issued a "favorable judgment" on Lehder's extradition "in accordance with the request formulated by the Government of the United States of America." The Colombian Supreme Court described its role in the extradition process in these terms:

The action taken by this Division of the Court is applied briefly to make a comparison between the documents provided by the requesting state and the rules or regulations of the applicable agreement, or secondarily, with respect to internal laws, to determine whether there is total compliance with these, in which case, it will render favorable judgment for extradition, or that it does not comply, and then will render an adverse opinion.... It is undeniably clear and necessary that the government has power to grant or deny the requested extradition when the judgment of the Court is favorable,—but it involves a political decision as to being independent and related to considerations of sovereignty or national interest; only in this way are the judicial and executive domain respected so that they remain harmonious in the decision over such matters.

Act No. 100, English Translation, at 11-13 (Defendant's Exh. B). Thus, the Colombian Supreme Court forwarded the extradition request to the President of Colombia for final action. In Resolution No. 79 of May 8, 1984 (Defendant's Exh. C), the Colombian President "conceded the extradition of Colombian citizen Mr. Carlos Lehder Rivas, requested by the Embassy of the United States of America in Colombia, in conformance with that set forth as the basis for this judgment." English Translation, at 9. Lehder's counsel petitioned the President to reconsider this determination. The Colombian President refused to reverse the earlier decree. In the course of the second opinion, he noted:

In the past, the government had denied requests for extradition of Colombian citizens to the United States and in the respective orders has analyzed the circumstances of having so ordered and the rights which made it adopt such measures. But in the case in question, we find before us circumstances completely different, as Mr. Carlos Lehder Rivas is accused in importing cocaine to the United States, of possession of it with the intent to distribute it in North American territory and of participating in continuous criminal enterprise of narcotic traffic.

Resolution No. 101 of June 8, 1984, English Translation, at 4. Thereafter, Lehder was arrested, sent to the United States, and turned over to federal authorities by an "Act of Surrender of Mr. Carlos Lehder Rivas by the Authorities of the Republic of Colombia, to the Authorities of the United States of America, in Compliance with Resolutions 79 of May 8, 1984, and 101 of June 8 of the Same Year."

Lehder poses two distinct arguments. He claims: (1) the Colombian Supreme Court's opinion approving the extradition request does not expressly mention the CCE charge, thereby excluding the charge from the court's "favorable judgment"; and (2) the CCE charge concerns an offense that does not qualify for extradition under the Extradition Treaty Between the United States and the Republic of Colombia (hereinafter "Treaty"). The government disputes these arguments, characterizing them as misinterpretations of the relevant documents.

The rule of speciality is included in the Treaty in Article 15, which provides that "a person extradited under the Treaty shall not be detained, tried or punished in the territory of the Requesting State for an offense other than that for which extradition has been granted ... unless an exception is satisfied." Speciality is a right that belongs to the country that authorized extradition, see Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir.), cert. denied, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973), and it may be waived by that nation, see United States v. Najohn, 785 F.2d 1420, 1422-23 (9th Cir.1986), or by the defendant, see United States v. Vreeken, 803 F.2d 1085, 1089 (10th Cir.1986) (speciality is rule of personal, not subject matter, jurisdiction), cert. denied, ___ U.S. ___, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). In United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), the Supreme Court incorporated the speciality principle into American law. The defendant's right derives from the supremacy of treaties under Article VI of the Constitution. See id. at 419, 7 S.Ct. at 240.

Consequently, Lehder's arguments put two tasks before this Court. The documents authorizing extradition must be construed. When the extraditing country does not expressly state an objection to a prosecution, as in this case,² the Court must inquire "whether the surrendering state would regard the prosecution at issue as a breach." United States v. Jetter, 722 F.2d 371, 373 (8th Cir.1983). This inquiry is not an easy one, for it must be done mindful that the authorities in the surrendering state are not shaping their decree for the purpose of dissection in American courts. In addition, the Treaty must be examined to determine if the CCE charge is an extraditable offense. In this regard, it must be borne in mind that "extradition treaties are to be liberally, not strictly, construed." Factor v. Laubenheimer, 290 U.S. 276, 303, 54 S.Ct. 191, 199, 78 L.Ed. 315 (1933).

Approval of the Extradition Request

Lehder's argument focuses entirely on the opinion of the Colombian Supreme Court. This focus is misdirected. The role of that tribunal, as explained by its own opinion, is to review the extradition request for "total compliance" with the Treaty and with Colombian law. When the Colombian Supreme Court granted "favorable judgment" to the extradition "in accordance with the request formulated by the Government of the United States of America", it granted the Colombian President authority to consider the extradition request without reservation. The decision to extradite then laid entirely in the hands of the Executive. The relevant documents to review are the two "Resolutions" by which the Colombian President approved the extradition.³

Assuming arguendo, however, that the Colombian Supreme Court opinion bears on the authority exercised by the Executive, this Court can find no reason to qualify the express wording of the Colombian court's resolution. The Colombian Supreme Court was apprised of the full range of charges for which Lehder was indicted.⁴ The opinion describes one of the offenses as "participating in a criminal enterprise continuously with other persons (narcotics traffic)". Act No. 100, English Translation, at 14 (Defendant's Exh. B). The discussion is imprecise by American terms, but Colombian courts cannot be expected to be centers of American legal scholarship.⁵ The Colombian Supreme Court clearly conveyed its meaning in the final "resolves" section of the opinion. This Court is not a court of appeals from the judgment of the Colombian Supreme Court. This Court can do no more than look to the language of the Colombian opinion, in the circumstances under which it was rendered, and conclude that the CCE charge was not excluded from the "favorable judgment" on the extradition request. Cf. United States v. Paroutian, 299 F.2d 486, 490-91 (2d Cir. 1962) (language and circumstances used to determine if charges fell within decree of extradition).

The Resolutions issued by the Colombian President indicate that he understood the "favorable judgment" to include the CCE charge. In Resolution No. 101 of June 8, 1984, the Colombian President made particular reference to the CCE offense. In fact, if the CCE charge did not fall within the approval of the extradition request, the Treaty requires that Colombia communicate the reasons for its refusal to extradite on that charge. See Treaty, Art. 12, sec. 2 ("The Requested State shall give the reasons for complete or partial rejection of the request for extradition."). The absence of explicit language denying extradition on the CCE charge compels the conclusion that the charge was included in the approval of Lehder's...