CRIMINAL PROCEDURE - FIRST CIRCUIT INTERPRETATION OF BILATERAL INTERSTATE EXTRADITION TREATY PROTECTS MAN FROM HARROWING STATE INFLICTED TORTURE - AGUASVIVAS V. POMPEO.

• Author: Moss, Rachel

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The Extradition Treaty between the United States of America and the Dominican Republic (Extradition Treaty) sets forth, among other things, a list of extraditable offenses, proper procedures, and mandatory documentation.

(1) The focus is on [*502] Article 7 [section] 3(b), articulating what document(s) are necessary to grant an extradition request. (2) In Aguasvivas v. Pompeo, (3) the [*503] First Circuit Court of Appeals considered whether

Article 7 [section] 3(b) of the Extradition Treaty requires both a warrant and a charging document detailing the charges brought against the Petitioner. (4) The majority concluded that a separate charging document is required to satisfy Article 7 [section] 3(b) for two main reasons: (1) Article 7 [section] 3(b) cannot be compared to other extradition treaties to which the U.S. is a party, as the language in Article 7 [*504] [section] 3(b) differs from all other extradition treaties; and (2) in other bilateral extradition treaties involving the United States, both a warrant and a charging document are needed. (5) Judge Lynch dissented [*505] from the majority, insisting that a plain reading of the Extradition

Treaty requires only a warrant as no other document, other than the warrant, is mentioned in Article 7 [section] 3. (6)

In December 2013, Dominican Republic drug officers handcuffed Christian Aguasvivas (Petitioner) and his brother, Frank. (7) As one of the drug officers, Officer Lorenzo Ubri (Officer [*506] Ubri), tried to arrest the

Petitioner, he sustained fatal gunshot wounds. (8) Although it is unknown who shot Officer Ubri, the Dominican

Republic claims that while Officer Ubri attempted to arrest the Petitioner, the Petitioner disarmed Officer Ubri and shot him. (9) The Petitioner fled from the Dominican Republic to the United States, but when the Petitioner arrived in the United States, the Dominican government issued a warrant for his arrest. (10) Out of fear of being tortured by the Dominican [*507] police upon removal for allegedly killing Officer Ubri, the Petitioner sought asylum in the United States. (11) When the Petitioner requested asylum, eight of his family members were called to testify on his behalf, detailing the grim torture they endured at the hands of the Dominican Police Officers. (12) Subsequently, [*508] the Petitioner claimed that sending him home to the Dominican Republic would subject him to torture at the hands of the Dominican Republic police, thereby violating the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). (13) The judge denied the Petitioner's asylum request, however, the Board of Immigration Appeals (BIA) subsequently reversed the immigration judge's decision. (14)

[*509] In February 2017, the Dominican Republic submitted a request to extradite the Petitioner from the United States and, pursuant to an arrest warrant, the Government arrested the Petitioner in Lawrence, Massachusetts.

(15) The judge determined that the Government produced the required documentation per the Extradition Treaty. (16) However, on appeal, the Petitioner claimed that the Government did not produce the necessary documentation by not producing a charging document, along with the warrant. (17)

Initially, when looking at the text of a treaty, it is uncontested that one must "look to its terms to determine its meaning." (18) However, the circuit split arises when looking at an [*510] ambiguous treaty, as some courts favor a more liberal interpretation of the treaty, broadening individuals' rights. (19) Conversely, [*511] other courts argue that, when interpreting a bilateral treaty with a foreign government, the United States should read the treaty as is and not consider outside factors, such as prior negotiations and diplomacy, in order to protect the intent of the contracting nations. (20)

[*512] Historically, the arrest warrant "describes the offense charged." (21) Emami articulates the majority view of circuit [*513] courts, determining that when a treaty specifically requests certain documents, only those listed documents need to be produced. (22) This reasoning is derived from the 7th Circuit reasoning [*514] in

Assarsson, articulating "if the parties had wished to include the additional requirement that a formal document called a charge be produced, they could have so provided." (23)

Moreover, when comparing various treaties, one can infer that there is a difference in interpretation when a treaty requires " the document setting forth the charges" in lieu of "a document setting forth the charges." (24) For example, when looking at the [*515] purpose of a charging document, In re Strauss and Pierce suggested that when a treaty mentions the word "charged," it means that a document must address the charges of the accused.

(25) It is also helpful to look at other extradition treaties the United States is involved in when determining whether a charging document is usually required in interstate extradition treaties. (26)

[*516] In Aguasvivas v. Pompeo, the Court agreed with the reasoning in both Emami and Assarsson, requiring the Government to produce only the documents listed in the extradition treaty. (27) However, the treaties mentioned in Emami and Assarsson do not contain a similar provision to Article 7 [section] 3(b). (28) When comparing [*517] this extradition treaty to the other extradition treaties in Emami and Assarsson, Article 7 [section] 3(b) of the extradition treaty alludes to the fact that the Government must produce a separate document setting forth the Petitioner's charges. (29) In addition, when looking at other extradition treaties the U.S. is involved in, the requirements are clearly established. (30) Therefore, because [*518] Article 7 [section] 3(b) is devoted to ensuring the government produces the document setting forth the charges, it is in the best interest of the petitioner to assume that a separate document, known as the charging document, be produced as well. (31) In response to the dissent, the majority does not find the precedent relied upon by Judge Lynch persuasive for two reasons: (1) those cases focus on whether the individual must be charged, and (2) they do not focus on whether one document can satisfy two different requirements. (32)

[*519] The majority is correct in dismissing the Dominican Republic's extradition request because the Government failed to produce the required documentation set out in Article 7 [section] 3(b) of the extradition treaty. (33) As mentioned first in Assarsson, and then in Emami, when a treaty is ambiguous, the Government must only produce the documents listed in any extradition treaty to avoid straying from the decisions agreed upon by United States and the Dominican Republic. (34) Although the extradition [*520] treaties mentioned in those two cases, and this Extradition Treaty, differ in wording, the rationale that the government seeking to extradite the petitioner must only produce what is required by the treaty, still holds. (35) While "the document" may be ambiguous, removing Article 7 [section] 3(b) from the extradition treaty would render the entire subsection irrelevant when considering [*521] the other two requirements mentioned under Article 7 [section] 3. (36)

Moreover, when looking at other extradition treaties to which the U.S. is a party, to determine the correct interpretation of this extradition treaty, it is unfair to compare the charging document requirement in the extradition treaty to other extradition treaties, as no other extradition treaty has the requisite section stating "the document setting forth the charges." (37) For example, an extradition treaty that has the closest language to this extradition treaty is between the U.S. and Chile, and, even so, it allows " a document" to detail the charges brought against [*522] the accused. (38) While many scholars and judges may argue that this court is using too liberal of an interpretation for Article 7 [section] 3(b), this assumption is incorrect, as the court never used outside factors to make its decision, such as past negotiations between the United States and the Dominican and previous versions of the extradition treaty. (39) In addition, if the Government extradited the petitioner back to the Dominican Republic, this would most likely subject him to a cruel and torturous death at the hands of the Dominican Police. (40) This would open the door [*523] for the United States and other nations to pick and choose what types of proceedings, and individuals, are worthy of an otherwise mandatory criminal procedure process. (41) Therefore, not requiring the Government to produce a charging document would violate the terms of the extradition treaty, and - unjustifiably - subject the petitioner to deadly torture at the hands of the Dominican Republic police. (42)

[*524] Lastly, Judge Lynch's dissent is not persuasive for two reasons: (1) she bases her argument on case law that the majority already addressed, and (2) she fails to address the main issue contemplated in Aguasvivas v.

Pompeo. (43) The petitioner's writ of habeas corpus addresses the issue of whether a warrant can fulfill two separate requirements described in Article 7 [section] 3(a) and [section] 3(b) of the extradition treaty. (44) Judge Lynch relies on cases where the issue is whether the petitioner must be charged [*525] with an offense. (45) Therefore, the majority correctly interpreted Article 7 [section] 3(b) of the extradition treaty. (46)

In Aguasvivas v. Pompeo the Court determined whether a separate charging document is required to satisfy Article 7 [section] 3(b) of the Extradition Treaty. The Court held that the Government must produce a charging document, as it is unequivocal that the parties envisioned the government submitting a separate charging document alongside the warrant. Although it is important to look at greater context when examining ambiguous...