Extradition Treaty
between the United States and Belgium; District of Columbia Circuit affirms
order which denied Extraditee’s motion to dismiss the indictment
Nizar
Trabelsi was a Tunisian national convicted in Belgium for a variety of crimes,
including attempting to destroy a military base. *1183
On
April 7, 2006, while Trabelsi was serving his sentence in Belgium, a grand jury
in the United States indicted him for various offenses. The indictment charged
Trabelsi with four Counts: Count 1—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 2—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
3—conspiracy to provide material support and resources to a foreign terrorist
organization, specifically al Qaeda, in violation of 18 U.S.C. § 2339B; and
Court 4—providing material support and resources to a foreign terrorist
organization, specifically al Qaeda, in violation of 18 U.S.C. §§ 2339B and 2.
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. 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. *1184
The
District Court concluded that Trabelsi had standing to challenge his
extradition and that it had jurisdiction to review his extradition. 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. 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. 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 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.” 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 appealed the
decision. *1185
The
United States Court of Appeals held that the District Court’s order denying
Trabelsi’s motion to dismiss the indictment fits within the collateral-order
exception, and it had jurisdiction to consider Trabelsi’s appeal. See
Duarte-Acero, 208 F.3d at 1284 (applying Abney to a motion to dismiss an indictment
based on a double-jeopardy provision included in a treaty).
The
Government contended that the Appeals Court lacked jurisdiction to review
Trabelsi’s extradition because it must defer to Belgium’s decision that the
offenses charged in the indictment did not violate Article 5 of the Treaty.
Trabelsi submitted that the Appeals Court had jurisdiction to review his
extradition and owed no deference to Belgium’s decision. The Court held that it
did have jurisdiction to review Belgium’s decision, but that the review was
highly deferential. *1186
It
was for Belgium, as the requested party, to determine whether to grant
extradition, see Treaty, Art. 11, S. TREATY DOC. NO. 104-7, if Trabelsi “ha[d]
[not] been found guilty, convicted, or acquitted in [Belgium] for the offense
for which extradition [was] requested,” Treaty, Art. 5, S. TREATY DOC. NO.
104-7. The Belgian Minister determined that Trabelsi’s extradition would not
violate the Treaty, and the Court of Appeals will not “second-guess [Belgium’s]
grant of extradition.” Campbell, 300 F.3d at 209.
The
deferential approach meant that “we will presume that if [Belgium] does not
indicate that an offense specified in the request is excluded from the
extradition grant, [Belgium] considers the offense to be a crime for which
extradition is permissible.” Campbell, 300 F.3d at 209. The extradition grant
did not exclude any of the offenses included in the request for extradition. As
a result, the Court presumed that Belgium has determined that none of the offenses
in the indictment violated Article 5 of the Treaty. This presumption was not
irrebuttable, however. Evidence that might rebut the presumption would include
misconduct on the part of the United States in procuring an extradition, see
Casey, 980 F.2d at 1475, or the absence of review of the extradition request by
the requested party. Trabelsi, however, offered no such evidence. *1189
The
legislative history surrounding the Extradition Treaty’s ratification also
supported interpreting the Treaty to apply to offenses, not conduct. The Senate
Committee on Foreign Relations issued an Executive Report at the time the
Treaty was ratified in 1996. The report explains that “[t]his paragraph permits
extradition... if the person sought is charged in each Contracting State with
different offenses arising out of the same basic transaction.” Id. (emphasis
added). The Court deferred to the decision of the Belgian courts and Minister
of Justice that, based on an offense-based analysis, Trabelsi’s extradition
comported with Article 5 of the Treaty, since Trabelsi had offered nothing of
merit to rebut the presumption. Because Trabelsi’s challenges failed, the Court
was not needed to decide whether the charges in the U.S. indictment and the
crimes for which Belgium convicted Trabelsi were identical under Blockburger.
*1190
The
concurring colleague stated that Belgian courts should be not be accorded this
measure of deference and that, instead, the Court should test the indictment
under Blockburger. The other judges could not agree for three principal
reasons: First, Blockburger applies when a defendant raises a challenge under
the Double Jeopardy Clause of the U.S. Constitution, but Trabelsi did not and
could not present such a challenge in this matter; Second, given the historical
context of the Treaty, it is implausible that Article 5 mandates a Blockburger
analysis as in 1987, when the Treaty was ratified, the law of double jeopardy
under the U.S. Constitution was not settled; Third, the deferential approach protected each
party’s prerogatives under the Treaty. Belgian authorities repeatedly construed
Belgian criminal law, and stacked those constructions up against the proffered
description of U.S. criminal law. These analyses showed that Belgium had a
reasoned basis for concluding that Trabelsi could be extradited, and that
conclusion—based in substantial measure on Belgium’s construction of its own
law—is entitled to considerable deference. *1192
Even
outside the context of specialty and dual criminality, U.S. courts will defer
to the judgment of foreign courts construing their own laws. See, e.g., United
States ex rel. Saroop v. Garcia, 109 F.3d 165, 168-69 (3d Cir. 1997) (affirming
an extradition after “defer[ring] to the judgment of the High Court of Justice
for Trinidad and Tobago on the validity of the [operative] extradition treaty
and its continuing vitality at the time of ... extradition”).
International
comity remains important in this context. The deference here is customary,
rather than “excessive” or “extraordinary,” as the concurring colleague
claimed. *1193
The
concurring colleague casts doubt on the Belgian proceedings because,
purportedly, “Belgium has fulfilled its interest in this case.” Concurring Op.
at 1195. But the Judges had no reason to suppose that because Trabelsi served
his Belgian sentence, Belgian authorities subjected the extradition request to
lighter scrutiny than was warranted; the double-jeopardy principle itself is
worth protecting. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES § 476 cmt. c (AM LAW INST. 1987) (“The principle that a person
should not be subject to double jeopardy is common to legal systems generally,
and in many countries is constitutionally mandated.”). The record contains
nothing to support the concurrence’s speculation.
The
Court of Appeals affirmed the order denying Trabelsi’s motion to dismiss the
indictment.
CITATION: US v. Trabelsi,
845 F. 3d 1181—Court of Appeals, Dist. of Columbia Circuit 2017.
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
