Aguasvivas v. Pompeo

984 F.3d 1047

• Court: Court of Appeals for the First Circuit
• Decided: January 7, 2021
• Docket: 19-1937P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1937

CRISTIAN AGUASVIVAS,

Petitioner, Appellee,

v.

MICHAEL POMPEO, U.S. Secretary of State; JEFFREY ROSEN, Acting U.S. Attorney General;* JOHN GIBBONS, U.S. Marshal for the District of Massachusetts; WING CHAU, U.S. Marshal for the District of Rhode Island; DANIEL MARTIN, Warden, Wyatt Detention Facility,

Respondents, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., Chief U.S. District Judge]

Before

Lynch, Kayatta, and Barron, Circuit Judges.

Amy Barsky, with whom Fick & Marx LLP was on brief, for appellee. Lee Gelernt, Cody Wofsy, Roberto Gonzalez, and Lynette Labinger on brief for the American Civil Liberties Union Foundation and the ACLU Foundation of Rhode Island, amici curiae. Christopher J. Smith, Associate Director, Office of International Affairs, Criminal Division, U.S. Department of

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey Rosen has been substituted for former Attorney General William P. Barr. Justice, with whom Brian A. Benczkowski, Assistant Attorney General, Criminal Division, Bruce C. Swartz, Deputy Assistant Attorney General, Criminal Division, Philip A. Mirrer-Singer, Trial Attorney, Office of International Affairs, Criminal Division, Andrew E. Lelling, United States Attorney, District of Massachusetts, Cynthia A. Young, Chief, Appeals Unit, District of Massachusetts, and Theodore B. Heinrich, Assistant United States Attorney, District of Massachusetts, were on brief, for appellants.

January 7, 2021 KAYATTA, Circuit Judge. The Dominican Republic requests

Cristian Starling Aguasvivas for extradition. After a federal

magistrate judge certified Aguasvivas as eligible for extradition,

Aguasvivas filed a habeas corpus petition in the District of Rhode

Island arguing, among other things, that the Dominican Republic

had failed to provide the required documentation in its extradition

request, and that his extradition would violate the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment, Dec. 10, 1984, T.I.A.S. No. 94-1120.1

("CAT"), given that the Board of Immigration Appeals ("BIA") had

previously found that he was qualified for CAT relief. The

district court agreed with Aguasvivas on both points, and the

United States has now appealed.

For the reasons explained below, we disagree with the

district court that the United States is bound by the BIA's prior

determination awarding Aguasvivas CAT relief. We nevertheless

affirm the grant of habeas relief because we agree that the United

States has failed to file the necessary documents to support an

extradition request.

I.

On December 6, 2013, Aguasvivas was with his brother,

Francis ("Frank"), when three Dominican drug officers, including

Lorenzo Ubri, handcuffed and attempted to arrest Aguasvivas. Shots

were fired while the officers were attempting to put Aguasvivas

- 3 - into their car. According to the Dominican Republic as represented

by the United States, "Frank distracted the agents by protesting,

and Aguasvivas took advantage of this distraction to disarm Agent

Ubri and shoot him three times at close range, including two

bullets to the chest area." Ubri died; the two other officers

were shot but not killed.

In December 2013, a Dominican warrant issued for

Aguasvivas's arrest. Eight months later, Aguasvivas fled to the

United States. In immigration court, he sought asylum, withholding

of removal, and CAT relief because of his fear of Dominican police.

The immigration judge denied all relief, but in August 2016, the

BIA reversed and granted withholding of removal under the CAT.

The BIA found that it was "more likely than not that [Aguasvivas

would] be tortured at the instigation of or with the consent or

acquiescence of public official[s] in the Dominican Republic" if

he returned.1

Just over three years after the warrant issued, in

February 2017, the Dominican Republic submitted an extradition

request to the United States. Extradition is a "two-step procedure

[that] divides responsibility . . . between a judicial officer and

the Secretary of State." United States v. Kin-Hong, 110 F.3d 103,

1 At the immigration hearing, four victims testified that the Dominican police tortured them for information on Aguasvivas's location. The police also killed Aguasvivas’s brother, Frank.

- 4 - 109 (1st Cir. 1997). The process is set out in the extradition

statutes, 18 U.S.C. § 3181 et seq. First, upon a complaint from

the Department of Justice in response to the foreign government's

request, the magistrate judge issues a warrant for the arrest of

the individual sought. See id. § 3184. The magistrate then

conducts a hearing to consider whether the extradition request

complies with the relevant treaty's documentation requirements,2

and whether "the evidence [is] sufficient to sustain the charge

under the provisions of the proper treaty." See id. If those

requirements are fulfilled, the magistrate certifies the

extradition to the Secretary of State. Id. The Secretary then

"determine[s] whether or not the [fugitive] should actually be

extradited." Kin-Hong, 110 F.3d at 109 (citing 18 U.S.C. § 3186).

"The Secretary has the authority to review the judicial officer's

findings of fact and conclusions of law de novo, and to reverse

2 The statute is not perfectly clear on the magistrate's obligation to review whether the documents submitted by the requesting party fulfill the obligations of the pertinent treaty. The language of the statute simply requires that the magistrate certify the extradition "[i]f . . . he deems the evidence sufficient to sustain the charge under the provisions of the property treaty or convention." 18 U.S.C. § 3184. We have previously read that portion of the statute to allow the magistrate (and subsequent habeas court) to consider whether a treaty's warrant requirement was fulfilled. See Kin-Hong, 110 F.3d at 113– 14; see also Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1448–49 (9th Cir. 1987); In re Assarsson, 635 F.2d 1237, 1240-43 (7th Cir. 1980). The government does not argue that Aguasvivas's documentation claim in this case was not properly before the magistrate or the district court.

- 5 - the judicial officer's certification . . . if [he] believes that

it was made erroneously." Id. The Secretary can also "decline to

surrender the relator on any number of discretionary grounds,

including but not limited to, humanitarian and foreign policy

considerations." Id. Finally, the Secretary may "attach

conditions to the surrender of the relator" or "use diplomatic

methods to obtain fair treatment for the relator" -- tools the

judiciary does not have.3 Id. at 110.

Upon receipt and review of the request from the Dominican

Republic to extradite Aguasvivas, the United States filed an

extradition complaint in the District of Massachusetts. A U.S.

warrant issued, and Aguasvivas was arrested in September 2017 in

Lawrence, Massachusetts. Following a hearing, a magistrate judge

in the District of Massachusetts certified Aguasvivas's

extradition in December 2018. The magistrate judge found that the

extradition request was supported by the documentation required by

the Dominican Republic-United States Extradition Treaty

("Extradition Treaty"), Extradition Treaty, Dom. Rep.-U.S., Jan.

12, 2015, T.I.A.S. No. 16-1215, and that there was probable cause

3 For a critical analysis of how often such diplomatic assurances actually work to prevent torture, see Katherine R. Hawkins, The Promises of Torturers: Diplomatic Assurances and the Legality of "Rendition", 20 Geo. Immigr. L.J. 213 (2006). See also Comm. on Int'l Human Rights, Torture by Proxy: International and Domestic Law Applicable to 'Extraordinary Renditions', 60 Rec. Ass'n B. City N.Y. 13, 138–49 (2005).

- 6 - to certify Aguasvivas for the extraditable offenses of murder,

possession of a firearm, and robbery.

Magistrates' certifications of extraditability are not

appealable final orders under 28 U.S.C. § 1291. In re Mackin, 668

F.2d 122, 127–28 (2d Cir. 1981). Extraditees therefore sometimes

seek habeas relief to challenge their detention pursuant to the

certifications. See id. at 128; see, e.g., In re Extradition of

Manzi, 888 F.2d 204, 205 (1st Cir. 1989) (per curiam). To

challenge his detention and avoid extradition, Aguasvivas filed

just such a habeas petition in the District of Rhode Island. The

district court granted the petition in September 2019. It first

found that the magistrate judge had evidence sufficient to find

probable cause. But it then found both that the extradition was

barred by the BIA's CAT determination and that the extradition

request did not satisfy the documentary requirements of the

treaty.4

With this appeal, the United States challenges both the

ruling that the BIA's 2016 CAT determination precludes extradition

and the ruling that the request of the Dominican Republic does not

4 Because it found that release was required on Aguasvivas's CAT and documentation requirements claims, the district court did not reach all the claims in the habeas petition. Specifically, the habeas petition includes additional claims under procedural due process, substantive due process, and the Administrative Procedure Act.

- 7 - satisfy the documentary requirements for extradition. We address

each challenge in turn.

II.

A.

We begin with the United States' challenge to the

district court's ruling that the Convention Against Torture

precludes Aguasvivas's extradition. At issue here, according to

Aguasvivas, is the prospect that, if extradited to the Dominican

Republic, he will be tortured. A claim of feared torture warrants

attention in the extradition context because of the principle of

non-refoulement in international law, reflected in Article 3 of

the CAT, and enacted in the United States (as pertinent here) in

the "FARR Act." See Foreign Affairs Reform and Restructuring Act

of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-

822; Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) ("[The FARR

Act] implements Article 3 of the international Convention Against

Torture, known as CAT."). That Act states in part that "[i]t shall

be the policy of the United States not to expel, extradite, or

otherwise effect the involuntary return of any person to a country

in which there are substantial grounds for believing the person

would be in danger of being subjected to torture." FARR Act

§ 2242(a). It then "delegates the responsibility for

'prescrib[ing] regulations to implement the obligations of the

United States' under the CAT to 'heads of the appropriate

- 8 - agencies.'" Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir.

2003) (quoting FARR Act § 2242(b)). As relevant to extradition,

the Secretary of State, "[i]n order to implement" the United

States' obligations under the CAT, "considers" whether an

individual sought is "more likely than not" to be tortured before

extraditing him. 22 C.F.R. § 95.2(b).

Aguasvivas, though, does not want to wait to see what

the Secretary decides. Instead, he launched a preemptive strike,

asking the district court to rule now that the threat of torture

must prevent his extradition, and thus that there is no reason to

detain him. And the district court agreed, reasoning that, because

the BIA previously found that removal of Aguasvivas by immigration

authorities was barred by the CAT, the Secretary is estopped from

ruling otherwise. In challenging that ruling, the United States

advances two arguments that command our attention. First, the

United States contends that the district court exceeded its own

statutory jurisdiction by inquiring into the subject of whether

the CAT precluded Aguasvivas's extradition. In support of this

argument, the United States relies on the so-called "rule of non-

inquiry," Kin-Hong, 110 F.3d at 110;5 the Senate's declaration that

5 See Trinidad y Garcia v. Thomas, 683 F.3d 952, 992 (9th Cir. 2012) (Berzon, J., concurring in part) ("The Supreme Court has never used the term 'rule of non-inquiry' . . . . Instead, the doctrine developed . . . as lower courts interpreted and expounded upon Supreme Court extradition precedents.").

- 9 - Article 3 of the CAT is not self-executing, 136 Cong. Rec. 36198

(1990); the FARR Act § 2242(d); and the REAL ID Act of 2005, Pub.

L. No. 109-13, § 106(a)(1)(B), 119 Stat. 231, 310 (codified at 8

U.S.C. § 1252(a)(4)). Second, the United States argues that, in

any event, the CAT's application to this extradition request is

not pre-ordained by the BIA ruling and is in fact an issue that is

not yet ripe. Because we find the collateral estoppel issue ripe,

and the argument against treating the BIA ruling as controlling to

be plain and persuasive, we skip over the more difficult issues of

whether we possess statutory jurisdiction. Cowels v. FBI, 936

F.3d 62, 67 (1st Cir. 2020) ("Where a question of statutory

jurisdiction is complex, but the merits of the appeal are 'easily

resolved against the party invoking [] jurisdiction,' we can assume

jurisdiction for purposes of deciding the appeal." (quoting In re

Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d 98, 114 n.13 (1st

Cir. 2019))).6

6 We have no reason to believe that any principle of non- inquiry implicates federal court jurisdiction -- much less Article III jurisdiction. In Munaf v. Geren, although the Supreme Court dismissed the petitioners' torture claims based in part on principles of non-inquiry, 553 U.S. 674, 700-03 (2008), the Court held that the district court at least had jurisdiction over the claims as "habeas corpus petitions filed on behalf of American citizens challenging their detention in Iraq" by a multinational force, id. at 680, 685-88. Similarly, we have previously explained that the principle of non-inquiry cannot be "regarded as an absolute," Kin-Hong, 110 F.3d at 112, quoting the Second Circuit's statement that it could "imagine situations where the relator, upon extradition, would be subject to procedures or punishment so antipathetic to a federal court’s sense of decency as to require

- 10 - 1.

A federal court possesses Article III jurisdiction to

hear a case or controversy only if it alleges an injury in fact.

See Susan B. Anthony List v. Driehaus (SBA List), 573 U.S. 149,

157–58 (2014). An allegation of future injury satisfies that

requirement only "if the threatened injury is 'certainly

impending,' or there is a 'substantial risk' that the harm will

occur." Id. at 158 (quoting Clapper v. Amnesty Int'l U.S.A., 568

U.S. 398, 414 n.5 (2013)); see also Reddy v. Foster, 845 F.3d 493,

500 (1st Cir. 2017). We have previously described our ripeness

inquiry as having "roots in both the Article III case or

controversy requirement and in prudential considerations," Reddy,

845 F.3d at 500 (quoting Roman Cath. Bishop of Springfield v. City

of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)), but we

acknowledge that the Supreme Court has moved away from considering

reexamination" of the principle, id. (quoting Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960)); see also Hilton v. Kerry, 754 F.3d 79, 86–87 (1st Cir. 2014) (applying principles of non-inquiry and declining to apply the "theoretical Gallina exception" but providing no suggestion of a jurisdictional bar); In re Extradition of Howard, 996 F.2d 1320, 1329 (1st Cir. 1993) (defining non- inquiry as "a doctrine which forbids judicial authorities from investigating the fairness of a requesting nation's justice system when considering whether to permit extradition to that nation" -- but not as jurisdictional). The government has not argued that Aguasvivas's CAT claim is outside the scope of habeas jurisdiction as defined under Fernandez v. Phillips, 268 U.S. 311, 312 (1925), and discussed further below, so we need not address that issue here.

- 11 - prudential standing separate and apart from Article III standing,

see Lexmark Int'l, Inc. v. Static Control Components, Inc., 572

U.S. 118, 125–26 (2014) (explaining that to take prudential

considerations into account in determining standing would be "in

some tension with our recent reaffirmation of the principle that

'a federal court's obligation to hear and decide' cases within its

jurisdiction 'is virtually unflagging'" (quoting Sprint Commc'ns.,

Inc. v. Jacobs, 571 U.S. 69, 77 (2013))). While it is unclear

whether prudential ripeness concerns in particular may still be

entertained, see SBA List, 573 U.S. at 167 ("[W]e need not resolve

the continuing vitality of the prudential ripeness doctrine in

this case . . . ."), Aguasvivas plainly alleges injury either way:

He claims that extradition and, thus, the renewal of his detention

for extradition are precluded by the fact that a prior ruling

renders him nonextraditable under the CAT. See Dep't of Homeland

Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1974 (2020) ("[E]xtradition

cases . . . illustrate nothing more than the use of habeas to

secure release from custody when not in compliance with the

extradition statute and relevant treaties."). As a result, the

government's argument that Aguasvivas's collateral estoppel claim

is not ripe fails.

2.

We thus move to the merits of Aguasvivas's collateral

estoppel claim, which is that the Secretary is estopped from

- 12 - determining that Aguasvivas is not likely to face torture if he

returns to the Dominican Republic, because the immigration courts

have already determined that he is likely to face torture. Even

putting to one side the questions of whether and when one agency

of the federal government may collaterally bind another arm of the

government,7 collateral estoppel cannot apply here because the

issues are not the same. See NLRB v. Donna-Lee Sportswear Co.,

Inc., 836 F.2d 31, 34 (1st Cir. 1987) ("[T]he issue before the

second forum must be the same as the one in the first

forum . . . ."). The issue before the BIA was whether it was more

likely than not that Aguasvivas would be tortured if he were

removed by immigration authorities to the Dominican Republic in

2016. See 8 C.F.R. § 208.16(c)(3). The issue to be addressed by

the Secretary would be whether Aguasvivas is more likely than not

to be tortured if he is extradited by the Secretary in 2020. See

22 C.F.R. § 95.2(b). The relevant time frames at issue differ by

several years. And the Secretary may also be able to use the

normal tools of diplomacy to assure certain treatment for

Aguasvivas upon surrender, as described above. See Kin-Hong, 110

F.3d at 110. So whether Aguasvivas would be tortured if extradited

by the Secretary in 2020 is a materially different question from

7 The government argues that the parties are not identical, and Aguasvivas counters with several theories under which the parties may be at least in privity with each other.

- 13 - whether he would have been tortured had he been removed by

immigration officials without any such assurances in 2016.

As one amicus brief8 has pointed out, in theory the

Secretary could have sought the same diplomatic assurances from

the Dominican Republic during the litigation of Aguasvivas's CAT

claim in removal proceedings. See 8 C.F.R. § 1208.18(c) (setting

forth a procedure for the Secretary of State to forward diplomatic

assurances to the Attorney General to be relied upon in immigration

proceedings). But we see no reason why the Secretary should be

required to seek diplomatic assurances in removal proceedings or

else forever hold his or her peace, especially given that removal

proceedings might take place before the foreign government even

requests extradition in the first place -- as happened here.

Presumably, even potentially effective assurances in place at the

time of removal proceedings would have to be re-sought or updated

if there were an extradition process years later. The availability

of diplomatic assurances in the removal process thus does not

convince us that the Secretary must be bound by the results of

that process.9 As a result, we see no reason to bind the government

8 See Br. for the American Civil Liberties Union Foundation and ACLU Foundation of Rhode Island as Amicus Curiae Supporting Appellee and Affirmance at 21. 9 Furthermore, the CAT relief Aguasvivas was awarded in his removal proceeding was not tantamount to permanent legal status. See Andrea Montavon-McKillip, CAT Among Pigeons: The Convention Against Torture, a Precarious Intersection Between International Human Rights Law and U.S. Immigration Law, 44 Ariz. L. Rev. 247,

- 14 - preemptively by collateral estoppel in these extradition

proceedings, and Aguasvivas's detention would be proper as a matter

of extradition procedure -- at least as to the CAT issue. See 18

U.S.C. § 3184 (requiring the extradition magistrate to "issue his

warrant for the commitment of the person so charged to the proper

jail" upon certifying extraditability).

B.

We turn now to Aguasvivas's claim that the documentary

requirements of the Dominican Republic-United States Extradition

Treaty have not been met, beginning with the question of whether

we have habeas jurisdiction to review the magistrate's

determination on the issue at all and then proceeding to the

merits.

1.

In its briefs, the United States makes no claim that we

lack jurisdiction to determine whether the documentary

requirements of the treaty have been satisfied. Counsel for the

United States explained that the United States has previously and

260 (2002) (explaining that CAT relief does not "confer derivative status to the applicant's family," "provide any permanent immigration benefits," or automatically provide work authorization). In fact, a removal case can be reopened and CAT withholding terminated if there is a "change in circumstances relating to the . . . claim." 8 C.F.R. § 208.24(b)(1); see also Nasrallah, 140 S. Ct. at 1691 ("An order granting CAT relief means only that, notwithstanding [an] order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country.").

- 15 - unsuccessfully contested jurisdiction over this issue in other

cases and has intentionally abandoned that argument in this case.

See Sacirbey v. Guccione, 589 F.3d 52, 64 n.16 (2d Cir. 2009)

(reviewing circuit rulings). Nor do we see, sua sponte, any

compelling reason not to exercise jurisdiction under the second

prong of Fernandez v. Phillips, 268 U.S. 311 (1925). As the

Supreme Court explained in that case: "[H]abeas corpus is

available only to inquire whether the magistrate had jurisdiction,

whether the offense charged is within the treaty and, by a somewhat

liberal extension, whether there was any evidence warranting the

finding that there was reasonable ground to believe the accused

guilty." Id. at 312. "[W]hether the offense charged is within

the treaty" requires an analysis of what the offense charged is

-- or whether any offense has been charged at all (not to mention

whether a formal charge is necessary). See Noeller v. Wojdylo,

922 F.3d 797, 805 (7th Cir. 2019) (treating a challenge to the

warrant at issue "as a challenge within the second category of

permissible challenges under [Fernandez], whether the offense

charged falls within the treaty, which we have understood as

including whether the treaty's documentary requirements have been

met"); Sacirbey, 589 F.3d at 63–69 (evaluating whether a formal

charge was required and considering it the court's "duty to ensure

that the applicable provisions of the treaty and the governing

American statutes are complied with" under Fernandez (alteration

- 16 - omitted) (quoting United States ex rel. Petrushansky v. Marasco,

325 F.2d 562, 565 (2d Cir. 1963))); see also Trinidad y Garcia,

683 F.3d at 1009 (Kozinski, J., dissenting in part) (characterizing

the limited scope of review under Fernandez to include "whether

the executive branch has the authority to detain the extraditee in

the first place and whether the judicial branch has exercised

proper jurisdiction over him").

Nor has the United States argued that this set of claims

fails to allege an injury in fact. We agree that there is an

"immedia[te] and real[]" controversy as to the probable cause and

documentation issues that Aguasvivas raises, because he would not

be subject to detention but for the magistrate judge's challenged

certification that the documentation was proper and that probable

cause existed. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S.

270, 273 (1941)). And even though these issues could be mooted if

the Secretary decides that Aguasvivas should not be extradited,

that possibility of eventual relief does not change the fact that

the Secretary seeks to have Aguasvivas detained now.

So we turn to the merits of Aguasvivas's argument --

accepted by the district court -- that the request for extradition

does not comply with the basic documentary requirements of the

treaty. That determination turned on an interpretation of the

- 17 - Extradition Treaty's Article 7, titled "Extradition Procedures and

Required Documents." Paragraph 2 of Article 7 requires, among

other things, that "[a]ll extradition requests shall be supported

by . . . information describing the facts of the offense or

offenses [and] the text of the law or laws describing the offense

or offenses for which extradition is requested." Extradition

Treaty art. 7, § 2. Paragraph 3 then specifies that "[i]n addition

to the requirements in paragraph 2 . . ., a request for extradition

of a person who is sought for prosecution shall also be supported

by:"

(a) a copy of the warrant or order of arrest or detention issued by a judge or other competent authority; (b) a copy of the document setting forth the charges against the person sought; and (c) such information as would provide a reasonable basis to believe that the person sought committed the offense or offenses for which extradition is requested.

Extradition Treaty art. 7, § 3.10

Aguasvivas contends that the request for his extradition

failed to satisfy these documentary requirements for two reasons:

(1) the warrant was not a warrant for his arrest or detention

because it did not name him; and (2) the request did not include

10 We refer only to the official English-language version of the Treaty. See Extradition Treaty art. 9 (requiring all extradition documents to be translated into the language of the "Requested Party"); cf. 48 U.S.C. § 864 (requiring all proceedings in the District Court of Puerto Rico to be conducted in English).

- 18 - "the document setting forth the charges" against him. We address

each argument in turn.

The Dominican Republic submitted a translated copy of

the warrant for the arrest of Aguasvivas. It reads in part:

"[T]he judge . . . can ordain the arrest of a person when . . . his presence is necessary and there is evidence to reasonably maintain that he is the perpetrator or accomplice of an offense, that he can hide, leave or escape from the place[,]" and "when the person after being summoned to appear . . . does not do that, and his presence is necessary during the investigation or knowledge of an infringement. . . ." [This warrant o]rdains the arrest against CRISTIAN STARLING AGUASVIVAS aka MOMON and FRAN AGUASVIVAS aka EL COJO, according to the request filed by the licentiate FELIX SANCHEZ, Deputy Prosecutor of Judicial District of Peravia . . . .

(quoting Dom. Rep. Code Crim. P. arts. 224, 225).

Aguasvivas points out that the warrant botches his name

-- entirely omitting his first name ("Cristian") and in its place

using only a misspelling of his middle name ("Estarling" instead

of "Starling") -- though the version translated to English

inexplicably gets it right (and the difference is not a simple

matter of translation). But extradition law discourages reliance

on mere technicalities to impede the joint efforts of the treaty

parties to extradite. See Fernandez, 268 U.S. at 312 ("Form is

not to be insisted upon beyond the requirements of safety and

- 19 - justice."); Bingham v. Bradley, 241 U.S. 511, 517 (1916)

(disfavoring defenses "savor[ing] of technicality" in extradition

proceedings). And there is no dispute -- even by Aguasvivas --

that he is the person described in the warrant, which is

accompanied by an affidavit that also describes him and includes

his picture.11

The Supreme Court has previously found that an arrest

warrant was invalid when it used an entirely incorrect first name

("James" versus "Vandy M."). See West v. Cabell, 153 U.S. 78, 85

(1894) ("[A] warrant for the arrest of a person charged with crime

must truly name him, or describe him sufficiently to identify

him."). Here, however, the reasonable inference from the warrant's

misspelling is that the police thought Aguasvivas's middle name

was his first name, and then spelled that name wrong. See Gero v.

Henault, 740 F.2d 78, 83 (1st Cir. 1984) (upholding a warrant that

listed the defendant's real name and alias, but in reverse order,

noting that it was clear that the police knew that the defendant

used both names). This is a far cry from an arrest warrant that

mistakes the identity of the party sought. So although we view

11 While Aguasvivas does not argue that he is not the person intended to be described in the warrant, he does contend that the use of the wrong name at one point led to the arrest of the wrong person, Richard Estarlin Aguasvivas. While Aguasvivas submitted a letter under Rule 28(j) suggesting that Dominican agents were seeking another person in the lead-up to his attempted arrest, the letter does not suggest that the warrant submitted in the extradition case does not identify him.

- 20 - the mistranslation of the warrant as troubling, it was not error

for the magistrate to rely on the warrant despite the misspelling

of Aguasvivas's name in the original, Spanish version.12

The bigger problem arises from the omission in the

extradition request of any indictment or the like. To be more

precise, such a document was not simply omitted -- it does not

exist at all, as the parties agree that the Dominican prosecutor

has yet to seek an indictment (called an "acusación" in the

Dominican Republic). Nor does any party dispute that the criminal

code of the Dominican Republic provides for the initiation of an

extradition request when a person against whom an indictment has

been presented is in a foreign country. See Dominican Code of

Criminal Procedure ("DCCP") Art. 161. Aguasvivas argues that

Dominican law actually requires that an indictment precede seeking

extradition from any country, but that contention is disputed, and

we defer to that extent to the Dominican government's construction

of its own law as not requiring any step or document that the

12 Of course, the rule that "federal court proceedings must be conducted in English," United States v. Rivera-Rosario, 300 F.3d 1, 5-6 (1st Cir. 2002); see also Extradition Treaty art. 9 (requiring all extradition documents to be translated into the language of the "Requested Party"); cf. 48 U.S.C. § 864 (requiring all proceedings in the District Court of Puerto Rico to be conducted in English), cannot excuse the government's use of name- altering translations. We simply find that the errors in the Spanish-language warrant here were not sufficient to invalidate it.

- 21 - treaty does not require. Cf. Grin v. Shine, 187 U.S. 181, 190-91

(1902) (refusing to consider a challenge to the validity of a

foreign arrest warrant). Similarly, while the Dominican

prosecutor's affidavit accompanying the extradition request

explains that a prosecutor in the Dominican Republic may in the

course of an investigation obtain an arrest warrant before deciding

whether or not to bring any charges,13 nothing in the affidavit

states that a prosecutor cannot indict before executing an arrest

warrant. The prosecutor's affidavit also suggests that charges

may be lodged in the Dominican Republic by a criminal complaint

made out by a victim. But the affidavit does not claim that any

criminal complaint has yet been lodged against Aguasvivas.

13 Under the heading "Criminal Procedure in the Dominican Republic," the prosecutor's affidavit reports that:

If the accused has escaped, the prosecutor asks the judge for a warrant for his arrest. As soon as the suspect is arrested, the prosecutor in charge of prosecuting the case, will interview him in the presence of his defense counsel; if the accused can not afford a defense lawyer, the State will provide one. Within 48 hours, the accused is presented by the prosecutor to the investigating judge, in order that he decides on the measure of coercion that must be applied to the accused. The prosecutor decides whether or not to bring charges according to the merits of the evidence available.

- 22 - For our purposes the salient point is that as best this

record shows neither the United States nor the Dominican Republic

disputes that Dominican law certainly allows for an indictment or

a criminal complaint as a precursor to an extradition request. So

here we have an application for extradition that includes no

indictment or criminal complaint only because no complaint exists

and apparently no indictment has even been sought. In short, this

case concerns a request to extradite for arrest and questioning in

anticipation of a possible, yet-to-be-determined prosecution.

This all brings us back to the text of the treaty. See

United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) ("In

construing a treaty . . . we first look to its terms to determine

its meaning."); Restatement (Fourth) of Foreign Relations Law

§ 306 (Am. Law Inst. 2018) ("A treaty is to be interpreted in good

faith in accordance with the ordinary meaning to be given to its

terms in their context and in light of its object and purpose.").

If the treaty's text is ambiguous and reasonably accommodates the

United States' construction, we defer to that construction whether

or not it is a construction we would adopt de novo. See Kin-Hong,

110 F.3d at 110 ("[E]xtradition treaties, unlike criminal

statutes, are to be construed liberally in favor of

enforcement . . . ."); Factor v. Laubenheimer, 290 U.S. 276, 293–

94 (1933) ("[I]f a treaty fairly admits of two constructions, one

restricting the rights which may be claimed under it, and the other

- 23 - enlarging it, the more liberal construction is to be preferred.").

Conversely, if the textual meaning is plain and cannot reasonably

bear the government's construction, then we must reject that

construction. Greci v. Birknes, 527 F.2d 956, 960 (1st Cir. 1976)

(declining to accept the State Department's interpretation where

the language of the treaty to the contrary was "plain").

The United States' textual argument focuses on the

phrase "the document setting forth the charges." Most persons

familiar with criminal procedure would read that phrase as

referring to either an indictment, a criminal complaint, or in

some circumstances in this country, an information. In this case,

the United States does not argue that the Dominican extradition

request includes any one of these three types of documents.

Rather, the United States argues that the warrant can do "double

duty," serving as both the warrant and as "the document setting

forth the charges." As to why we should regard the warrant as

"the document setting forth the charges," the United States offers

a single argument:

The Dominican arrest warrant . . . satisfies the plain terms of Article 7.3(b) of the Treaty. It describes the criminal acts that Aguasvivas is alleged to have committed and lists the Dominican statutes that Aguasvivas is alleged to have violated. It therefore qualifies as "the document setting forth the charges against the person sought."

We see six textual problems with this argument.

- 24 - First, and most importantly, were the United States

correct, then the entirety of paragraph 3(b) (requiring "the

document setting forth the charges") would be entirely

superfluous. In every case, the warrant would perform the

government's version of double duty. The government, after all,

makes no argument that Dominican or United States warrants of

arrest or detention would ever fail to do what the United States

says is necessary to do double duty as the document setting forth

the charges. In the United States, for example, arrest warrants

must "describe the offense charged." Fed. R. Crim. P. 4(b)(1)(B);

see also 1 Federal Practice and Procedure: Criminal §§ 51, 54 (4th

ed. 2020) (describing requirements of form for warrants issued

pursuant to Rules 4 and 9); 5 Am. Jur. 2d Arrest § 21 (2d ed. 2020)

(collecting state and federal cases requiring that arrest warrants

describe the offense charged). Indeed, one of the purposes served

by an arrest warrant is to give notice of the alleged offense for

which probable cause has been found. Jaben v. United States, 381

U.S. 214, 218–19 (1965) ("Notice to a criminal defendant is usually

achieved by service upon him of the summons or arrest warrant

. . . ."). And the United States makes no claim that arrest

warrants in the Dominican Republic differ in this regard.14

14 Nor does the United States argue that "order[s] of arrest or detention" can both issue prior to indictment and fail to describe the offenses.

- 25 - Certainly, the Dominican warrant in this case describes the

offenses for which the issuing official has found sufficient cause.

Our dissenting colleague posits that a warrant to search

for and seize "a person to be arrested" under Federal Rule of

Criminal Procedure 41(c)(4) need not contain such information, but

points to no example of an arrest or detention pursuant to such a

warrant (rather than a Rule 4 warrant). The United States itself

makes no such argument (either in the district court or before

us). And even were we to accept the possibility that a warrant

silent as to the offense could authorize arrest or detention, the

"missing" information required by the United States' "double duty"

interpretation would always be supplied by the Paragraph 2

required information.15 So, whichever way you look at it, either

the warrant by itself or certainly the warrant and the paragraph 2

information would in 100 percent of the cases supply everything

that the United States claims is necessary, and thus do the

requisite double duty, rendering Article 7.3(b) entirely

superfluous.

Second, this is a treaty between two countries that both

customarily employ warrants to arrest and separate documents to

15 Paragraph 2 requires "[i]n addition to" the documents required by Paragraph 3 "information describing the facts of the offense or offenses . . . [and] the text of the law or laws describing the offense or offenses for which extradition is requested."

- 26 - charge. When two experienced anglers refer to their "casts," we

don't envision them making movies. Similarly, when these two

countries refer in separately set-off sub-paragraphs to the

warrant and to "the document setting forth the charges," (emphasis

added), we envision something more than a warrant procured by a

prosecutor who has not yet decided to bring charges.

Third, a warrant, unlike an indictment, fails to

indicate that the subject is wanted for prosecution.16 Under this

treaty, the difference matters. Article 1 of the Extradition

Treaty states that it is intended to provide for extradition of

people "sought by the Requesting Party from the Requested Party

for prosecution" (emphasis added). Article 7.3 itself describes

the required documentation as support for "a request for

extradition of a person who is sought for prosecution." This plain

language expressly describing the role played by "the document

setting forth the charges" reinforces the notion that Article 7 of

the Treaty does not call for the extradition of a person wanted

for questioning regarding a possible but not yet charged

prosecution.

Fourth, we examine the text of this treaty against the

backdrop of judicial interpretations of other treaties. Long

16The United States does not report that the Dominican Republic argues otherwise or that the rule of non-inquiry precludes us from drawing this conclusion.

- 27 - before this treaty was concluded, two circuit courts had considered

whether a treaty required presentation of an indictment or the

like in support of an extradition request. See Emami v. U.S. Dist.

Ct., 834 F.2d 1444, 1448–49 (9th Cir. 1987); In re Assarsson, 635

F.2d 1237, 1240-43 (7th Cir. 1980). In rejecting the contention

that the applicable treaty conditioned extradition on the filing

of formal charges, each court pointed out that the treaty's list

of required documents contained no reference to any formal document

evidencing charges being brought. The lists included, instead,

the warrant. Emami, 834 F.2d at 1448 n.3; Assarsson, 635 F.2d at

1243. The Seventh Circuit reasoned that, "[i]f the parties had

wished to include the additional requirement that a formal document

called a charge be produced, they could have so provided."

Assarsson, 635 F.2d at 1243. We readily agree with the holdings

and the rationale in both Emami and Assarsson. So we could rule

for the government in this case were the language of this treaty

materially similar to the language of those treaties.

The treaty in this case, though, adds to the list of

required documents a requirement that was missing in those earlier

treaties: "the document setting forth the charges." For that

reason, our agreement with the holdings in Emami and Assarsson

provides no succor for the United States in this case. Indeed,

given that the State Department is presumably familiar with the

various treaty forms that it has adopted and with circuit law

- 28 - construing those forms, the contrast between this treaty and the

treaties in those cases strongly suggests that the addition of

§ 3(b) was intended to call for the production of more than just

a warrant.

This reasoning moves even closer to home when we consider

the fifth textual problem with the government's argument, this

Treaty's departure from the language in the pre-existing, 1909

extradition treaty with the Dominican Republic. That treaty, like

the treaties at issue in Assarsson and Emami, also had no

requirement to include the document setting forth the charges.

Extradition Convention art. XI, Dom. Rep.-U.S., June 19, 1909,

36 Stat. 2468 ("If, however, the fugitive is merely charged with

crime, a duly authenticated copy of the warrant of arrest in the

country where the crime was committed, and of the depositions upon

which such warrant may have been issued, shall be

produced . . . ."). When, subsequent to Assarsson and Emami, the

Dominican Republic and the United States added to the list of

required documents "the document setting forth the charges," a

strong inference arose supporting the conclusion that this treaty

requires more than an arrest warrant describing a suspected but

yet-to-be charged crime.

Finally, this inference only grows stronger when we

compare this treaty's supporting document requirements to those

present in other recent treaties. After Assarsson and Emami and

- 29 - prior to this treaty's conclusion, the State Department

demonstrated that it knew how to make the production of a document

other than an arrest warrant optional. The extradition treaty

between the United States and Austria, for example, provides that

"[a] request for extradition of a person who is sought for

prosecution shall be supported by" "a copy of the warrant or order

of arrest" and "a copy of the charging document, if any."

Extradition Treaty, Austria-U.S. art. 10, § 3, Jan. 8, 1998,

T.I.A.S. No. 12916 (emphasis added); see also Protocol Amending

the Convention between the United States of America and Israel of

December 10, 1962, Isr.-U.S., art. 6, July 6, 2005, T.I.A.S.

No. 07-110 (amending Article X of the countries' extradition

treaty to include the same language). This language plainly

recognizes that there is a type of document in addition to the

warrant that is known as a charging document. And that language

also grants permission to proceed without that other document if

it does not exist. The treaty before us preserves that recognition

that there is some document that does more than a warrant does,

but it eliminates the permission to proceed without such a

document. This change would not have been made had the United

States been willing to extradite to the Dominican Republic persons

(including its citizens) based only on a warrant.

As best we can tell, no other United States extradition

treaty uses the same relevant language as does the treaty with the

- 30 - Dominican Republic. The treaty that comes closest, the Chile-

United States Extradition Treaty, preexisted this treaty and

requires a warrant and "a document setting forth the charges."

See Extradition Treaty, Chile-U.S., art. 8, § 3(b), June 5, 2013,

T.I.A.S. No. 16-1214. The next-closest agreements are those with

Belize, Saint Kitts and Nevis, Saint Vincent and the Grenadines,

Grenada, and Saint Lucia, all of which also preexist this treaty

and none of which requires "the document setting forth the

charges." See Extradition Treaty, Belize-U.S., art. 6, § 3(b),

Mar. 30, 2000, T.I.A.S. No. 13,089; Extradition Treaty, St. Kitts

& Nevis-U.S., art. 6, § 3(b), Sept. 18, 1996, T.I.A.S. No. 12,805;

Extradition Treaty, St. Vincent-U.S., art. 6, § 3(b), Aug. 15,

1996, T.I.A.S. No. 99-908; Extradition Treaty, Gren.-U.S., art. 6,

§ 3(b), May 30, 1996, T.I.A.S. No. 99-914.1; Extradition Treaty,

St. Lucia-U.S., art. 6, § 3(b), Apr. 18, 1996, T.I.A.S. No. 00-

202. The parties cite no precedent concerning those treaties.

Whether the United States' "double duty" theory would work with

those treaties without rendering an entire paragraph superfluous,

we need not decide. Rather, the arguably pertinent point is that

in this treaty alone "a document setting forth the charges" is

changed to "the document setting forth the charges."

We have also considered the arguments of our dissenting

colleague, which rely heavily on cases construing the interstate

extradition statute, or cases construing other treaties. We find

- 31 - nothing in those cases inconsistent with our holding here. Neither

the interstate extradition statute nor the treaties in those cases

called for a warrant and "the document setting forth the charges."

Instead, in one manner or another they simply required that the

person sought for extradition have been "charged," which we agree

in that context could be construed "in the broad and practical

sense," Pierce v. Creecy, 210 U.S. 387, 402 (1908), as not

requiring more than one would find always in an arrest warrant.

In none of these cases was the court asked by the government to

construe a requirement that "A and B be filed" as meaning that

only "A be filed."

Our dissenting colleague also speculates that "an order

of detention" refers always and only to something that compels the

detention of a person who has not been indicted. Hence, reasons

our colleague, there could never be an extradition based on an

order of detention if an indictment were required. The United

States itself advances no such argument. Nor does it point to any

basis for such an unsupported (and unasserted) assumption that

orders of detention can never be accompanied by indictments.

In sum, we find that the text of the treaty, even when

viewed through a lens of liberal construction favoring

extradition, will not accommodate the United States'

interpretation. Most notably, that construction would render

superfluous a relatively bespoke requirement added to this treaty,

- 32 - the absence of which requirement in other preexisting treaties was

twice noted as significant by circuit courts before this treaty

was written.

A final note on the charges: At oral argument, counsel

for the United States acknowledged that because of the rule of

specialty, any offense not listed in the document satisfying the

requirement established in Article 7.3(b) cannot be certified for

extradition. See United States v. Tse, 135 F.3d 200, 204 (1st

Cir. 1998) ("The doctrine of specialty is grounded in international

comity and generally requires that a requesting country not

prosecute a defendant for offenses other than those for which

extradition was granted."); United States v. Saccoccia, 58 F.3d

754, 766 (1st Cir. 1995) ("The principle of specialty . . .

generally requires that an extradited defendant be tried for the

crimes on which extradition has been granted, and none other."

(internal citations omitted)). Here, the arrest warrant does not

list Article 379 of the Dominican Code, which criminalizes a form

of robbery. Article 379 is included in the extradition request,

however, and the magistrate certified it for extradition.

Certification and Committal for Extradition at 3, In re Extradition

of Cristian Starling Aguasvivas, No. 17-mj-04218 (D. Mass. Dec.

11, 2018), ECF No. 78. The government avers that the difference

between the offense listed in the extradition request and that

listed in the arrest warrant (Article 309) amounts to no more than

- 33 - a typo, and the magistrate judge agreed. But Article 309 is an

entirely distinct offense under the Dominican Code, so it is

difficult to simply assume that its presence in the arrest warrant

was a typo. As a result, even if we found the documentation

sufficient to certify on the other charges, we would vacate the

certification of Article 379 specifically.

C.

Finally, Aguasvivas argues that there is not probable

cause to believe he committed the crimes alleged by the Dominican

Republic. We address this issue only because it is likely to arise

again if the Dominican prosecutor intends at some point to file

and supply "the document setting forth the charges." See, e.g.,

Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990)

(addressing issues "raised by the parties which [were] likely to

recur"). On habeas review of a magistrate's certification of

extraditability, we look only to whether the magistrate's

determination of probable cause was supported by "any evidence."

Kin-Hong, 110 F.3d at 116; Fernandez, 268 U.S. at 312 (authorizing

the habeas court to review "whether there was any evidence

warranting the finding that there was reasonable ground to believe

the accused guilty"). "This circuit has interpreted the 'any

evidence' standard quite literally, conducting a fairly

deferential review of the magistrate's findings." Kin-Hong, 110

- 34 - F.3d at 116-17 (citing Koskotas v. Roche, 931 F.2d 169, 176 (1st

Cir. 1991); Manzi, 888 F.2d at 205).

Under that standard, the district court's analysis was

largely correct: The magistrate certainly had at least some

evidence to conclude that Aguasvivas might have been guilty of

shooting at the agents who attempted to arrest him. Firstly,

Dominican prosecutor Feliz Sanchez Arias reported that the two

surviving officers identified a photograph of Aguasvivas as the

shooter.17 And secondly, a video of the shooting on YouTube --

while it does not actually show Aguasvivas shooting anyone -- does

not show that he could not have done so. A medical report states

that the bullets entered Ubri in the front, while the video plainly

17 The affidavit is not perfectly clear on the identification, given that it first identifies a photograph as the photograph of Cristian Aguasvivas and then states that the eyewitnesses were qualified to identify Aguasvivas because they saw him shoot Ubri but never explicitly that they identified the person in the photo as the shooter. However, the chain of logic seems to extend to that point: The agents saw the shooting, and believed Aguasvivas -- the man in the photograph -- committed it. Additionally, evidence at an extradition hearing "may consist of hearsay, even entirely of hearsay." Kin-Hong, 110 F.3d at 120 (citing Collins v. Loisel, 259 U.S. 309, 317 (1922)). Aguasvivas argues that these statements are "not even hearsay" because "there is no declarant." It is true that the affidavit is not clear on whether the officers made the identification directly to Sanchez Arias or whether he learned of the identification through someone else. But the fact that the exact chain of knowledge is not identified does not change the fact that this is competent hearsay evidence admissible at an extradition hearing.

- 35 - places Aguasvivas immediately in front (and within a foot or so)

of Ubri when he was shot.

Of course, there is also a considerable amount of

conflicting evidence. The autopsy report seems to assume that

someone other than Aguasvivas must have committed the shooting,

states that Ubri was killed by a "[d]istant" wound,18 and suggests

that the third shot entered Ubri in the "anterior region" of his

left arm. Additionally, the government has admitted that

Aguasvivas was handcuffed (albeit with hands in front) while the

shots were fired.

As both the district court and Aguasvivas have pointed

out, this circuit noted in 1997 that its light-touch approach to

the "any evidence" standard may have been out of keeping with the

more searching approaches of other circuits, Kin-Hong, 110 F.3d at

117 ("Recently, some other appellate courts, while retaining the

traditional formulation, have apparently engaged in a more

rigorous review of the evidence presented before the judicial

officer, thus raising questions about the actual content of the

'any evidence' standard."), and that the scope of habeas review

had broadened somewhat in other ways since the "any evidence"

standard was set out in Fernandez, id. ("[H]abeas corpus in other

18 The magistrate judge wrote that the bullets were "fired at short range." We have not been able to locate a source for that contention.

- 36 - contexts has expanded to become a 'second look' at most substantive

and procedural issues."). However, as in Kin-Hong, we need not

resolve this issue here. The eyewitness testimony, though

presented through hearsay, in combination with the video, makes

clear that the magistrate had evidence to conclude that there was

a reasonable ground to believe Aguasvivas guilty. Determining

whether he is in fact guilty is a task we would leave for the

Dominican court system.

III.

For the foregoing reasons, the decision of the district

court is affirmed as to the insufficiency of the documentation to

support an extradition request under Article 7 of the treaty and

affirmed as to the sufficiency of the probable cause determination,

but reversed as to Aguasvivas's collateral estoppel claim. We

remand for further proceedings consistent with this decision.

– Concurring and Dissenting Opinion Follows –

- 37 - LYNCH, Circuit Judge, concurring in part and dissenting

in part. I join the holdings in the majority opinion finding

collateral estoppel inapplicable, finding that the warrant was

sufficient as to the naming of Aguasvivas, and upholding the

probable cause determination. I dissent from the affirmance of

the grant of habeas corpus on the basis that the documentation

provided does not meet the requirements of the extradition treaty.

I fear the majority opinion will undermine the purpose and letter

of the treaty and the repercussions of its ruling will extend far

beyond this case.

The extradition treaty at stake states that:

2. All extradition requests shall be supported by: (a) documents, statements, or other types of information that describe the identity, nationality, and probable location of the person sought;

(b) information describing the facts of the offense or offenses and the procedural history of the case;

(c) the text of the law or laws describing the offense or offenses for which extradition is requested and the applicable penalty or penalties; . . .

(e) the documents, statements, or other types of information specified in either paragraph 3 or paragraph 4 of this Article, as applicable.

3. In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall also be supported by:

- 38 - (a) a copy of the warrant or order of arrest or detention issued by a judge or other competent authority;

(b) a copy of the document setting forth the charges against the person sought; and

(c) such information as would provide a reasonable basis to believe that the person sought committed the offense or offenses for which extradition is requested.

Extradition Treaty ("Extradition Treaty"), Dom. Rep.-U.S., art. 7,

§§ 2-3, Jan. 12, 2015, T.I.A.S. No. 16-1215.

The majority holds that the requirement that the

Dominican Republic provide "the document setting forth the

charges" under Article 7, § 3(b) has not been met. It makes six

textual arguments -- most of which were not made by Aguasvivas --

to justify rejecting the government's position that a warrant can

be used as "the document setting forth the charges." In doing so,

the majority concludes that a warrant cannot do "double duty,"

fulfilling the requirements of Article 7, § 3(a) and (b)

simultaneously.

I disagree with the result the majority reaches, which

is based on incorrect and singular reasoning. The plain language

of the Extradition Treaty does not require two documents, and the

warrant is sufficient to meet the terms of § 3(b). The

- 39 - government's interpretation of the treaty is reasonable, and the

documents presented here comply with the treaty.

I would hold that the treaty unambiguously permits a

warrant to serve as "the document setting forth the charges" as

long as it adequately describes the charges against the accused.

And even if the treaty were ambiguous, the canons favoring a

"liberal construction" of treaty obligations coupled with the

agreement between the United States and the Dominican Republic

that the provided documents fulfill the terms of the treaty produce

an inescapable conclusion that a warrant alone can satisfy both

treaty requirements. I would also hold that the warrant provided

in this case adequately stated the charges against Aguasvivas and

serves as "the document setting forth the charges" against him

under Article 7, § 3(b).

I begin by reviewing the documents provided in support

of extradition. Though the majority does not dwell on the

particulars of the documents, a review of their text is essential

to determining whether the Dominican government has adequately set

forth charges against Aguasvivas. Both the Dominican Republic and

the United States have provided documents supporting Aguasvivas's

extradition.

The Dominican embassy's extradition request states that

the Dominican Republic seeks Aguasvivas "to respond to the charges

- 40 - against him of Association of malefactors, robbery, murder and

illegal possession of firearms." The embassy clarifies that

Aguasvivas "is charged with the violation of Articles 265, 266,

379, 383, 295 and 304 of the Dominican Criminal Code and Article

39, Paragraph III of Law 36 about Trade and Possession of

Firearms." The extradition request also attaches the affidavit of

Dominican Prosecutor Feliz Sanchez Arias and a copy of the warrant

authorizing Aguasvivas's arrest.

Prosecutor Sanchez Arias's affidavit sets forth the

accusations against Aguasvivas and provides background on

Dominican criminal procedure. Prosecutor Sanchez Arias states

that he is "in charge of the criminal case that accuses . . .

Aguasvivas . . . of crimes of association of malefactors, robbery,

murder and illegal possession of firearms . . . sanctioned by the

articles 265, 266, 379, 383, 295 and 304 of the Dominican Criminal

Code and article 39, paragraph III of Law 36 about Trade and

Possession of Firearms." He reiterates that Aguasvivas "is accused

of" and "must respond for the violation of . . . the Dominican

Criminal Code, and . . . Law 36 about Trade and Possession of

Firearms." Based on these accusations, an arrest warrant was

issued. According to Sanchez Arias, the warrant remains "in force,

valid and enforceable." Though he has not sought an indictment,

Sanchez Arias explains that in his experience, "[i]f the accused

has escaped, the prosecutor asks the judge for a warrant for his

- 41 - arrest," and that after the accused is apprehended, "the accused

is presented by the prosecutor to the investigating judge, in order

that he decides on the measure of coercion that must be applied to

the accused." Sanchez Arias concludes that "[c]onsidering the

evidence that exists on this case, [he] has the conviction that if

[Aguasvivas] is extradited to the Dominican Republic, he shall be

sentenced in criminal trial by the crimes he is charged."

The arrest warrant, which was issued by a judge of the

Dominican Republic authorized to issue such warrants, begins by

describing the accusations against Aguasvivas. The warrant

specifies that Aguasvivas is sought for arrest because he "disarmed

and fired three shots to the agent LORENZO UBRI MONTERO causing

his dea[th]," "seriously injured with firearms the agents of the

National Directorate for Drug Control," and "disarmed . . . agents

of the National Directorate for Drug Control who were participating

in the anti-drug operation." As a result of these acts, Aguasvivas

is "accused of violation of the articles 265, 266, 295, 304 and

309 of the Dominican Criminal Code and article 39 of Law 36 on

Trade and Possession of Firearms." The judge states that based on

the evidence presented by the prosecutors, "the accused are the

perpetrators of the accusation, and that they can run away, so it

is appropriate to grant the authorization for their arrest." The

warrant authorizes the detention of Aguasvivas for no more than

- 42 - twenty-four hours unless the prosecutor requests an additional

"coercive measure" from the court.

The United States has provided both a complaint seeking

Aguasvivas's extradition and a statement from the Office of the

Legal Advisor describing the United States' position on the proper

interpretation of the Extradition Treaty. The complaint filed by

the U.S. Attorney both lays out the government's treaty obligations

to the Dominican Republic and confirms that "[a]ccording to the

information provided by the Government of the Dominican Republic,

AGUASVIVAS is charged with murder, aggravated robbery, conspiracy,

and illegal firearm possession." The U.S. Attorney also states

that Aguasvivas "would be likely to flee" if faced with a warrant

for his arrest.

The Office of the Legal Adviser states that "Article

7.3(b) supplements Article 7.3(a) by ensuring that the Requesting

State provide . . . the document that identifies the offenses with

which the accused is charged and sought for prosecution." (Emphasis

added.) "There is no requirement in Article 7, or elsewhere in

the Treaty, that the requesting country provide separate documents

to satisfy the requirements of Article 7.3(a) and (b)." The United

States also explains that it has "reviewed the Arrest Warrant for

Cristian Aguasvivas" and concluded that it "satisfies both Article

7.3(a) and Article 7.3(b) of the Treaty."

- 43 - II.

When interpreting a treaty, we must begin "with the text

of the treaty and the context in which the written words are used."

E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (quoting

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699

(1988)). If a treaty is unambiguous, it must be applied as

written. See id. at 534-35; United States v. Li, 206 F.3d 56, 63

(1st Cir. 2000) (relying on non-textual sources "[t]o the extent

that the treaties' terms are ambiguous"). However, "treaties are

construed more liberally than private agreements, and to ascertain

their meaning we may look beyond the written words to the history

of the treaty, the negotiations, and the practical construction

adopted by the parties." E. Airlines, Inc., 499 U.S. at 535

(quoting Air Fr. v. Saks, 470 U.S. 392, 396 (1985)). When a treaty

contains ambiguities, canons of treaty interpretation require us

to both give a treaty the "more liberal construction" when more

than one is possible and to construe an extradition treaty in favor

of enforcement. Factor v. Laubenheimer, 290 U.S. 276, 293–94

(1933). Interpretive canons also require us to reject defenses to

extradition that hinge on technicalities. See Fernandez v.

Phillips, 268 U.S. 311, 312 (1925). Finally, "[a]lthough not

conclusive, the meaning attributed to treaty provisions by the

Government agencies charged with their negotiation and enforcement

is entitled to great weight." Sumitomo Shoji Am., Inc. v.

- 44 - Avagliano, 457 U.S. 176, 185 (1982); see also El Al Isr. Airlines,

Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) ("Because a

treaty ratified by the United States is . . . an agreement among

sovereign powers, we have traditionally considered as aids to its

interpretation . . . the postratification understanding of the

contracting parties." (quoting Zicherman v. Korean Air Lines Co.,

Ltd., 516 U.S. 217, 226 (1996))); GE Energy Power Conversion Fr.

SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1645-

46 (2020).

I first consider whether the plain language of Article

7 permits the use of a single document to fulfill the requirements

of both Article 7, § 3(a) and (b). The plain text of the treaty

does not state that one document cannot meet both requirements.

The requirements are listed separately to clarify that both

requirements must be met, but that does not mean that two documents

are required. As long as the document provided meets the terms of

each individual requirement, the treaty terms are satisfied.

The majority's arguments to the contrary are

unconvincing. The majority argues that because both the United

States and the Dominican Republic use "warrants to arrest and

separate documents to charge," Article 7, § 3(b) must refer to

something different than an arrest warrant. Again, I disagree.

The particulars of how the Dominican Republic brings formal charges

- 45 - have little bearing on whether an arrest warrant itself can set

forth charges and fulfill both treaty requirements. If the

drafters of the treaty wished to require something other than a

warrant under § 3(b), they could have done so by requiring

something like a "charging instrument."

The majority also argues that the United States'

construction of the treaty would render § 3(b) superfluous because

a warrant will always describe the offenses charged. This argument

is unpersuasive. Neither government agrees that the United States'

reading of § 3(a) would make § 3(b) superfluous. There is nothing

in the record to indicate that Dominican warrants always contain

a description of the offenses charged, and it is not our role to

investigate Dominican procedure. See Grin v. Shine, 187 U.S. 181,

184-85 (1902). Further, the United States argues that foreign

arrest warrants do not always set forth "any or all of the

charges." This warrant meets the terms of § 3(b), but not all

warrants necessarily will.

Looking to Article 7, §§ 2 and 3 together does not change

the analysis. The majority argues that because § 2 says that an

extradition request must include information describing facts of

the offense and the text of the relevant laws, § 3(b), which

requires a copy of the document setting forth the charges, would

necessarily be rendered surplus if the documents provided here

were adequate under the treaty. This argument was not made by

- 46 - Aguasvivas and the government has not had any notice it had to

respond to this argument. In any case, the argument is

unpersuasive.

The portions of § 2 the majority says would be redundant

with § 3 list the information that must be included in an

extradition request, without any reference to what specific

documents should be included. Extradition Treaty, art. 7, § 2(a)-

(c). In contrast, Article 7, § 3 makes clear that the request

must include copies of the warrant and the appropriate document

setting forth the charges rather than just, for example, a letter

from the embassy containing all the information described in

§ 2(a)-(c). Thus, in cases where there is an indictment setting

forth the charges, § 3(b) says that a copy of the indictment should

be included in the extradition request. And where the document

setting forth the charges is a warrant, a copy of the warrant must

be included. There is no surplusage here. And even if there were

some redundancy, that would provide "only a clue" to the correct

interpretation of a text because "[s]ometimes the better overall

reading of the [text] contains some redundancy." Rimini Street,

Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019).

The majority's reference to Federal Rule of Criminal

Procedure 4 is also inapposite. Rule 4 governs the issuance of

arrest warrants or summons "on a [c]omplaint," and requires that

the warrant "describe the offense charged in the complaint." Fed.

- 47 - R. Crim. P. 4(b)(1)(B) (emphasis added). But the majority's

argument is premised on the fact that the Dominican Republic has

not filed a criminal complaint against Aguasvivas. Analogizing

from our procedure to make conclusions about Dominican procedure

-- especially when Dominican procedure is obviously different here

-- is improper. See Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1449

(9th Cir. 1987) (stating that the court should "refrain from

interpreting the requirements of German criminal procedure both

out of respect for German sovereignty and because [the court]

recognize[d] the chance of erroneous interpretation"). And even

if we were to analogize to the United States' criminal procedure,

the warrant at issue here more closely resembles a Rule 41 warrant,

which allows officers to search for and seize a person without

filing a complaint when there is probable cause to arrest that

person. See Fed. R. Crim. P. 41. Although the warrant here

contains a description of the charges against the person sought,

a Rule 41 warrant does not have to include such a description.19

See id.

19 The majority argues that Rule 41 is not relevant because I have not identified an example of an arrest or detention pursuant to such a warrant. This misunderstands the point. The point is that we cannot extrapolate anything about the Dominican warrant in this case from Rule 4, because a Rule 4 warrant presupposes that the arrestee has already been formally charged with a crime. See Fed. R. Crim. P. 4. In our system, an officer does not need a warrant at all to arrest a person if there is probable cause. Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Thus, Rule 41 warrants, which are meant to aid officers in making arrests even

- 48 - B.

Next, this dissent evaluates whether Article 7, § 3(b),

which requires the requesting country to provide "the document

setting forth the charges," mandates that the requesting country

provide an indictment, complaint, or other separate charging

instrument.20

Black's Law Dictionary defines a "charge" as a "formal

accusation of an offense as a preliminary step to prosecution."

Black's Law Dictionary (11th ed. 2019). This definition

contradicts the majority's suggested reading that charges should

be brought by means of an "indictment or the like." Instead, any

document, including an arrest warrant, which details the crimes

and acts the defendant is accused of committing and moves towards

a prosecution can set forth charges under § 3(b).

The statute governing interstate extradition and caselaw

discussing that statute also indicate that "charges" should be

when no Rule 4 warrant has issued and there is no charging instrument, are a better analog whether they are commonly used or not. See Fed. R. Crim. P. 41 advisory committee's note to 1979 amendment (explaining that Rule 41 permits warrants to search for a person subject to arrest "even though no arrest warrant has theretofore issued."). 20 The majority refuses to specify what kind of document is needed to fulfill § 3(b). It says that the document setting forth the charges must "indicate that the subject is wanted for prosecution," and must be "more than just a warrant.” The majority suggests, but does not hold, that the document should be an "indictment or the like."

- 49 - interpreted broadly. 18 U.S.C. § 3182 states that "a copy of . .

. an affidavit made before a magistrate" can serve as the document

"charging the person demanded" with a crime for the purposes of

interstate extradition. No formal charging instrument is

required. See In re Strauss, 197 U.S. 324, 331-32 (1905) (holding

that the Constitution and 18 U.S.C. § 3182 allow extradition on an

affidavit even if that affidavit would not serve as a charging

document sufficient to initiate a trial).

Caselaw buttresses the conclusion that a person may be

"charged" with an offense even if no formal charging document has

issued. The Supreme Court has held that the word "charged" in the

Extradition Clause of the Constitution "ought to be understood"

"in the broad and practical sense." Pierce v. Creecy, 210 U.S.

387, 402 (1908); see also id. at 404–05 (explaining that "the word

'charged' was used in its broad signification to cover any

proceeding which a state might see fit to adopt, by which a formal

accusation was made against an alleged criminal" and thus that a

document which "unmistakably describe[d] every element of the

crime" was sufficient to show that "the accused was substantially

charged with [a] crime." (quoting In re Strauss, 197 U.S. at 331));

id. at 403 (noting that for interstate extradition, there is no

requirement of "a good indictment, or even an indictment of any

kind" because extradition "requires nothing more than a charge of

crime"). Specifically, the Supreme Court has held in the context

- 50 - of interstate extradition that "a party is charged with [a] crime

when an affidavit is filed, alleging the commission of the offense,

and a warrant is issued for his arrest; and this is true whether

a final trial may or may not be had upon such charge." In re

Strauss, 197 U.S. at 331; see also id. at 332 ("Why should the

state be put to the expense of a grand jury and an indictment

before securing possession of the party to be tried?"); Rothgery

v. Gillespie County, 554 U.S. 191, 210 (2008) (holding that "an

initial appearance following a charge signifies a sufficient

commitment to prosecute regardless of a prosecutor's

participation, indictment, information, or what the County calls

a 'formal' complaint.").

Our sister circuits have similarly construed the term

"charged" broadly in extradition treaties. See In re Assarsson,

635 F.2d 1237, 1242 (7th Cir. 1980) (explaining that treaty

requirement that individual be "charged" was "used in the generic

sense only to indicate 'accused'"); In re Assarsson, 687 F.2d

1157, 1160, 1163 n.13 (8th Cir. 1982) (holding that treaty which

applied only to those "charged with or convicted" of an offense

did not condition extradition on the existence of formal charges);

Sacirbey v. Guccione, 589 F.3d 52, 67 (2d Cir. 2009) ("[W]e

interpret these provisions to mean that the proof required under

the Treaty to establish that an individual has been 'charged' with

a crime is a valid arrest warrant and the evidence submitted in

- 51 - order to obtain that warrant."); Emami, 834 F.2d at 1448–49

(holding that formal charges were not required to show that

defendant had been "charged"). Against this background, the

requirement that the requesting party provide a document "setting

forth the charges" cannot be transmuted into a requirement that

the requesting party provide an "indictment or the like" rather

than a warrant setting forth the charges.

The cases relied upon by the majority further support

the conclusion that a warrant may serve as a document "setting

forth the charges." In Assarsson, a man was sought for extradition

by the Swedish government. 635 F.2d at 1239. Under the terms of

the treaty, Sweden could seek extradition of those who had been

"charged with or convicted of" a list of offenses specified in the

treaty. Id. at 1242. Assarsson argued that he had not been

"charged with" a crime because no formal charges had been brought

against him. See id. As in the instant case, the treaty specified

a list of documents required to support an extradition request.

Id. at 1243 n.7. The required documents included a "copy of the

warrant of arrest or other order of detention issued by the

competent authority of the requesting State," "a precise statement

of the criminal act with which the person sought is charged," and

"an authenticated copy of the texts of the applicable laws of the

requesting State." Id. The Seventh Circuit concluded that the

warrant was sufficient to show that Assarsson had been "charged"

- 52 - under the terms of the treaty. Id. at 1242–43. The court explained

that the word "charged" was used in contrast to "convicted," and

thus was "used in the generic sense only to indicate 'accused.'"

Id. at 1242. Furthermore, "[s]ince the parties [to the treaty]

chose not to require production of the charge document, we can

easily infer that they did not require the 'substance' of a charge

either." Id. at 1243. The same reasoning applies here. There is

nothing in the treaty to suggest that the "charges" must be

anything more than accusations levied by the Dominican government.

The treaty does not on its face require a charging instrument, and

it is not appropriate for us to expand the Dominican Republic's

obligations under the treaty. See id. at 1241 n.5 ("[C]ourts

cannot expand the obligations of another nation under a treaty."

(citing Grin, 187 U.S. at 191–92)).

The majority attempts to distinguish Assarsson by

explaining that the treaty at issue required a warrant and a

statement of the "criminal act . . . charged," while the treaty at

issue here requires a warrant and "the document setting forth the

charges." The majority argues that "[w]hen, subsequent to

Assarsson . . . [the treating parties] added to the list of

required documents 'the document setting forth the charges,' a

strong inference arose supporting the conclusion that this treaty

requires more than an arrest warrant." This argument does not

hold. The majority makes too much of the modest differences in

- 53 - the treaty language. As explained in Assarsson, "[i]f the parties

had wished to include the additional requirement that a formal

document called a charge be produced, they could have so provided."

Assarsson, 635 F.2d at 1243. I agree that the treaty could have

included a requirement for a formal charging document. But it

does not. And contrary to the majority's reasoning, a document

"setting forth the charges" is more akin to the statement of the

"criminal act . . . charged" as required by the Assarsson treaty

than to an indictment or other charging instrument. See id. at

1243 n.7.

The majority also relies on Emami. In Emami, the German

government sought to extradite Reza Emami for "detention for

investigation." 834 F.2d at 1446. Formal charges had not been

filed against Emami. Instead, the German government had issued an

arrest warrant for the purpose of detaining and interrogating

Emami. Id. at 1447. Emami first argued that he could not be

extradited before the filing of a formal public charge because the

treaty applied only to persons "who have been charged with an

offense or are wanted by the other Contracting Party for the

enforcement of a judicially pronounced penalty or detention

order." Id. at 1448 (emphasis added). Citing Assarsson, the court

rejected this notion, reasoning that the word "charged" was used

to distinguish between those accused and those already convicted

of an offense. Id. Further, the word "charged" had been "used as

- 54 - a verb in the generic sense only to indicate 'accused'" and "could

not be transmuted into a requirement that 'charges,' a noun, be

filed." Id. (citing Assarsson, 635 F.2d at 1242-43). The court

explained that it was appropriate to inquire into whether a

defendant had been formally charged only if the treaty required a

copy of a formal charging document. Id. As the treaty only

required the requesting country to provide "[t]he text of all

applicable provisions of law of the Requesting State concerning

the definition of the offense," "[a] warrant of arrest," and "[a]

summary statement of the facts of the case unless they appear from

the warrant of arrest," the court would not inquire into whether

a formal charge existed. Id. at 1488 & n.3.

Emami next argued that he was not properly sought "for

prosecution" because Germany had not shown an adequate intent to

prosecute him. Id. at 1449. He contended that Germany had not

shown a commitment to prosecute because it had requested him "for

purposes of 'detention for investigation'" and had not filed

charges against him. Id. at 1448. The court rejected this

argument, explaining that it had "reservations against deciding

questions of German criminal procedure" and holding that Germany's

statement in its extradition request that Emami was wanted for

prosecution was sufficient to show that Emami was wanted for

prosecution under the terms of the treaty. Id. at 1449.

- 55 - The majority's decision conflicts with both holdings.

As with Assarsson, the majority attempts to distinguish Emami on

the basis that the treaty at issue had different documentary

requirements. But the core holding of Emami is that the court

should not inquire into whether charges have been brought unless

the treaty unequivocally requires a charging document. The

extradition treaty at issue in this case does not require a

charging document, so we should recognize that any document that

sets forth the charges fulfills the requirement of § 3(b).

The majority's decision also flatly contradicts the

Emami court's holding that a foreign government's statement of

intent to prosecute is sufficient to show that a person is sought

"for prosecution." As in Emami, the Extradition Treaty provides

for the extradition of people sought "for prosecution" and the

Dominican Republic seeks to interrogate the suspect before the

filing of formal charges. See id. at 1448. Like in Emami, the

Dominican Republic has given clear signals that it intends to

prosecute Aguasvivas: the Dominican State Department specified

that it wishes to extradite Aguasvivas "to respond to the charges

against him," and the prosecutor "in charge of the criminal case

that accuses" Aguasvivas has concluded that "[c]onsidering the

evidence that exists on this case, [he] has the conviction that if

[Aguasvivas] is extradited to the Dominican Republic, he shall be

- 56 - Nevertheless, the majority insists that the requirement that

Aguasvivas be sought for prosecution means that more than an arrest

warrant is required. This holding both contradicts Emami and

undercuts the purpose of the treaty. In light of Emami and

Assarsson, the majority's ruling in this case will create a circuit

split suitable for Supreme Court review.

The additional arguments made by the majority do not

support its conclusion that the warrant does not adequately set

forth the charges against Aguasvivas.

The majority's fifth argument -- also not made by

Aguasvivas -- is that because the Extradition Treaty was drafted

after Emami and Assarsson, and the 1909 Extradition Treaty between

the Dominican Republic and the United States required only a

warrant, the addition of a requirement that the requesting party

provide the document setting forth the charges was meant "to call

for the production of more than just a warrant." I disagree with

this reasoning. First, as explained above, Emami and Assarsson

counseled the State Department that if it wanted an extradition

treaty to require a formal charging instrument, then it should

explicitly add such a requirement to the treaty. When, as here,

a later treaty does not contain such a requirement, then we should

not read it in. Second, the 2015 treaty replaced the entire text

of the 1909 treaty with different text very similar to a

significant number of extradition treaties between the United

- 57 - States and other Caribbean and South American countries. See,

e.g., Extradition Treaty, Chile-U.S., art. 8, § 3(b), June 5, 2013,

T.I.A.S. No. 16-1214 (requiring "a document setting forth the

charges" to support an extradition request); Extradition Treaty,

Gren.-U.S., art. 6, § 3(b), Sept. 14, 1999, T.I.A.S. No. 99-914.1

(same); Extradition Treaty, St. Kitts & Nevis-U.S., art. 6, § 3(b),

Sept. 18, 1996, T.I.A.S. No. 12,805 (same). Thus, because the

text was based on other treaties, rather than an article by article

revision of the 1909 treaty, textual differences between the 1909

treaty and the 2015 treaty should not be given undue weight in

interpreting the 2015 treaty.

The majority's sixth argument -- also not made by

Aguasvivas -- is unconvincing. The majority argues that because

the Austrian and Israeli extradition treaties explicitly allow for

extradition when there is no "charging document," then we should

not read the Dominican extradition treaty to also allow for

extradition absent a charging document. This argument ignores

critical differences in language between those treaties and the

treaty at issue. The Austrian and Israeli treaties specifically

require a "charging document" if one exists rather than a more

general "document setting forth the charges." Extradition Treaty,

Austria-U.S., art. 10, § 3(b), Jan. 8, 1998, T.I.A.S. No. 12,916;

Protocol Amending the Convention between the United States of

America and Israel of December 10, 1962, Isr.-U.S., art. 6, July

- 58 - 6, 2005, T.I.A.S. No. 07-110. If anything, the fact that other

treaties use the phrase "charging document" suggests that "the

document setting forth the charges" should not be narrowly

interpreted to mean "the charging document."

Finally, in addition to the document setting forth the

charges, the treaty requires "a copy of the warrant or order of

arrest or detention issued by a judge or other competent

authority." Extradition Treaty, art. 7, § 3(a) (emphasis added).

While the warrant provided in this case is nominally an arrest

warrant, the warrant could also be understood as a warrant of

detention. As explained in the warrant, the Dominican Code of

Criminal Procedure allows a judge to issue warrants to detain

individuals for questioning. The record in this case shows that

Prosecutor Sanchez Arias seeks to detain Aguasvivas to interview

him before bringing formal charges, as Dominican procedure allows,

and the warrant only authorizes the prosecutor to detain Aguasvivas

for twenty-four hours for questioning. If the treaty were read to

require an indictment or complaint, that sequence would never be

permitted, despite the treaty's provision allowing for extradition

on a warrant or order of detention.21

21 Contrary to the majority's argument, I do not assume that there could never be an extradition based on an order of detention if a formal charging document were required by the treaty. Rather, as the United States explains, Dominican procedure allows the government to seek pre-indictment warrants and extraditions to detain and question suspects. Thus, when the

- 59 - In light of the plain text of the treaty and ample

precedent on the meaning of "charges," I would hold that the treaty

unambiguously permits any official document describing both the

criminal acts committed by the defendant and the laws violated by

the defendant to serve as a "document setting forth the charges."

I would also hold that the treaty unambiguously permits one

document to fulfill the requirements of both Article 7, § 3(a) and

Article 7, § 3(b). The majority's contrary holdings put this court

at odds with Supreme Court precedent and the decisions of our

sister circuits.

The arrest warrant for Aguasvivas adequately specifies

the laws Aguasvivas is accused of violating, describes the criminal

acts that Aguasvivas is charged with performing, and lists the

evidence supporting these charges. Thus, it is sufficient to set

forth the charges under the terms of the treaty.

A finding that the treaty is ambiguous would lead me to

the same result. When a treaty is ambiguous, the parties'

reasonable interpretation is essentially binding on the court.

See Sumitomo Shoji Am., Inc., 457 U.S. at 185 ("When the parties

to a treaty both agree as to the meaning of a treaty provision,

treaty expressly allows for extradition on an "order of detention" in addition to an arrest warrant, a strong inference arises that the Dominican Republic should be permitted to use this pre- indictment procedure to extradite Aguasvivas.

- 60 - and that interpretation follows from the clear treaty language, we

must, absent extraordinarily strong contrary evidence, defer to

that interpretation."). Furthermore, "if a treaty fairly admits

of two constructions, one restricting the rights which may be

claimed under it, and the other enlarging it, the more liberal

construction is to be preferred." Factor, 290 U.S. at 293-94; see

also Grin, 187 U.S. at 184 (stating that extradition treaties

should be "interpreted with a view to fulfil our just obligations

to other powers.").

The United States and the Dominican Republic agree that

the warrant can fulfill the requirements of § 3(b). The State

Department opines that "Article 7(3)(b) supplements Article

7(3)(a) by ensuring that the Requesting State provide not only the

document that functions as a 'warrant or order of arrest or

detention issued by a judge or other competent authority,' but

also the document that identifies the offenses with which the

accused is charged and sought for prosecution in the Requesting

State." However, "[t]here is no requirement . . . that the

requesting country provide separate documents." A representative

from the Office of the Legal Advisor represented that he had

"reviewed the Arrest Warrant for Cristian Aguasvivas submitted by

the Dominican Republic in this extradition request," and concluded

that it "satisfie[d] both Article 7.3(a) and Article 7.3(b) of the

Treaty." The extradition complaint filed in the district court

- 61 - also explains that Aguasvivas "is charged with murder, aggravated

robbery, conspiracy, and illegal firearm possession, in violation

of Articles 265, 266, 295, 304, 379, and 383 of the Dominican

Criminal Code, and Article 39, Paragraph III, of Dominican Law 36

on Trade and Possession of Firearms." (emphasis added).

The Dominican Republic has also made clear that they

believe Aguasvivas has been charged with several crimes and that

they have provided sufficient documentation for his extradition.

The communication from the Dominican embassy specifies that it

requests Aguasvivas's extradition so that he can "respond to the

charges against him of Association of malefactors, robbery,

murder, and illegal possession of firearms." Prosecutor Sanchez

Arias declares that the "[t]reaty does not state as a requirement

for . . . extradition, the prior existence of an indictment against

the person required in extradition." He explained that an

indictment had not been obtained because "the Prosecutor wants to

know the version of the accused of how and why he perpetrated the

facts imputed to him . . . prior [to] filing an indictment against

him." The warrant also states on its face that Aguasvivas is

"accused of violat[ing]" several articles of the Dominican

Criminal Code.

In the face of this agreement, if the treaty is

ambiguous, we must defer to the parties and hold that the warrant

fulfills the requirements of Article 7, § 3(b).

- 62 - III.

The majority approach is forbidden by Supreme Court

precedent in several respects. First, the Supreme Court has

cautioned against expanding the treaty obligations of other

countries. See Grin, 187 U.S. at 191 ("The treaty is undoubtedly

obligatory upon both powers, and, if Congress should prescribe

additional formalities than those required by the treaty, it might

become the subject of complaint by the Russian government and of

further negotiations."). Instead, extradition treaties should be

"faithfully observed, and interpreted with a view to fulfil our

just obligations to other powers." Id. at 184. Insisting that

the Dominican Republic provide a charging document when the treaty

does not explicitly include such a requirement puts an

impermissible burden on the Dominican Republic and will stand in

the way of the United States' faithful adherence to its treaty

obligations, both to the Dominican Republic and the many other

countries whose treaties similarly require "document[s] setting

forth the charges."

Second, courts should refrain from imposing standards

that cause the validity of an extradition request to turn on the

technical form of the request. See Glucksman v. Henkel, 221 U.S.

508, 512 (1911) ("[W]hile . . . a man is not to be sent from the

country merely upon demand or surmise, . . . if there is presented,

even in somewhat untechnical form according to our ideas, such

- 63 - reasonable ground to suppose him guilty as to make it proper that

he should be tried, good faith to the demanding government requires

his surrender."); Yordi v. Nolte, 215 U.S. 227, 230–31 (1909)

(moving away from the "extreme technicality with which

[extradition] proceedings were formerly conducted" and holding

that extradition complaints "need not be drawn with the formal

precision of an indictment"). Where an extradition proceeding "is

manifestly taken in good faith, a technical noncompliance with

some formality of criminal procedure should not be allowed to stand

in the way of a faithful discharge of our obligations." Grin, 187

U.S. at 184–85. Furthermore, courts should not be required to

become familiar with foreign criminal procedure in order to resolve

extradition requests. Id. at 190 (stating that the court should

not be "expected . . . [to] become conversant with the criminal

laws of Russia, or with the forms of warrants of arrest used for

the apprehension of criminals"); see also Assarsson, 635 F.2d at

1244 ("We are also not expected to become experts in the laws of

foreign nations." (citing Grin, 187 U.S. at 181)).

Cases from our sister circuits expand on these notions.

In Assarsson, the court explained that courts should "refus[e] to

review compliance with foreign criminal procedure . . . based on

respect for the sovereignty of other nations." 635 F.2d at 1244.

"This respect is embodied in the procedural framework of

international extradition, which 'gives to the demanding country

- 64 - advantages most uncommon to ordinary civil and criminal

litigation.'" Id. (quoting First Nat'l City Bank of N.Y. v.

Aristeguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated as moot,

375 U.S. 49 (1963)). Furthermore, courts should avoid inquiries

that require them to evaluate and interpret the laws of foreign

nations because such inquiries carry a high risk of error. Id.

("[T]he chance of error is much greater when we try to construe

the law of a[nother] country . . . ."); see also Emami, 834 F.2d

at 1449 (concluding that the court should "refrain from

interpreting the requirements of German criminal procedure both

out of respect for German sovereignty and because [the court]

recognize[d] the chance of erroneous interpretation").

These holdings do not forbid us from inquiring into the

sufficiency of the documents provided by the Dominican Republic.

But the majority's interpretation of the treaty will unnecessarily

require courts to evaluate whether the documents presented include

a proper charging document rather than accepting the

representations of the Dominican Republic that the defendant has

been charged with several crimes.22 The majority's holding also

22 The dangers of this type of inquiry appear even in this case. While the majority suggests that a criminal complaint by a victim would suffice as a document setting forth the charges, such a complaint does not indicate that a prosecutor will in fact bring charges. Prosecutor Sanchez Arias's affidavit states that "[t]he aggrieved parties may also file a criminal complaint against the accused and collaborate proactively with prosecutors in the work

- 65 - hinges on its conclusion that the Dominican Republic will never

issue a warrant that does not describe all of the offenses charged

against the person sought for extradition. This type of reasoning

goes against the weight of precedent cautioning against inquiries

into the criminal procedure of other nations. We should inquire

only whether the documents adequately describe and give notice of

the charges against Aguasvivas.

IV.

The majority's decision, in my view, harms the United

States in the conduct of foreign affairs and is in conflict with

the views of other circuits. And because the treaty language at

issue in this case is nearly identical to the language in a large

number of extradition treaties with Caribbean and South American

countries, the majority opinion will have repercussions far beyond

this case. Though the Dominican Republic may file an acusación

and attempt to extradite Aguasvivas again, in all likelihood

Aguasvivas will never be found to permit extradition to face

charges in the Dominican Republic.

I respectfully dissent.

of investigation" but that "[t]he prosecutor decides whether or not to bring charges" and if the prosecutor does bring charges "the complainant adheres to the accusation." It is not clear from the majority opinion whether a victim's complaint unsupported by a prosecutor would fulfill the terms of § 3(b).

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