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In re Extradition of Leiva

United States District Court, S.D. Florida

February 6, 2017

IN THE MATTER OF THE EXTRADITION OF ANDRES FELIPE ARIAS LEIVA

          ORDER

          JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on the Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction (DE# 35, 10/24/16) filed by Andres Felipe Arias Leiva (hereinafter "Dr. Leiva").

         BACKGROUND

         Dr. Leiva filed the instant motion on October 24, 2016. See Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction (DE# 35, 10/24/16). The government filed its response in opposition and a notice of supplemental authority on October 28, 2016. See Government's Response in Opposition to Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction (DE# 37, 10/28/16); Government's Notice of Supplemental Filing in Opposition to Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction (DE# 38, 10/28/16). Dr. Leiva filed his reply on October 31, 2016. See Andres Arias Leiva's Reply to Colombia's Response to His Emergency Motion to Dismiss Complaint (DE# 39, 10/31/16). On November 4, 2016, the government filed a second notice of supplemental authority. See Government's Notice of Supplemental Authority in Support of Government's Response in Opposition to Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction (DE# 45, 11/4/16). Dr. Leiva responded to the government's supplemental authority on November 5, 2016. See Andres Arias Leiva's Response to the Government's Notice of Supplemental Authority (DE# 46, 11/5/16).

         On November 17, 2016, the Court held a hearing on the instant motion. See Transcript (DE# 53, 12/6/16). Following the hearing, the Court permitted the parties to file supplemental briefs.

         On December 16, 2016, the government filed its supplemental response. See Government's Supplemental Response in Opposition to Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction, and Request for a Hearing (DE# 54, 12/16/16). Dr. Leiva filed his supplemental response on January 6, 2017. See Response to the Republic of Colombia's Supplemental Memorandum Regarding Jurisdiction (DE# 56, 1/6/17). The government filed its supplemental reply on January 13, 2017. See Government's Supplemental Reply in Further Opposition to Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction, and Request for a Hearing (DE# 57, 1/13/17).

         This matter is ripe for adjudication.

         ANALYSIS

         "The federal extradition statute generally permits extradition when based on a treaty or convention." Noriega v. Pastrana. 564 F.3d 1290, 1295 (11th Cir. 2009) (citing 18 U.S.C. § 3184). The instant Complaint for Extradition (DE# 1, 8/11/16) alleges that "[t]here is an extradition treaty in force between the United States and the Republic of Colombia, U.S.-Colom., Sept. 14, 1979, S. Treaty Doc. No. 97-8 (1981) ('Extradition Treaty')" and that "[p]ursuant to its own domestic law and in accordance with Articles 1, 2, and 9 of the Extradition Treaty, the Government of Colombia has asked the Government of the United States, through diplomatic channels, for the extradition of [Dr. Leiva]." Complaint for Extradition (DE# 1 at ¶¶2-3, 8/11/16).

         Dr. Leiva takes the position that there is no extradition treaty in effect between the United States and Colombia because "[o]n 12 December 1986, the Colombian Supreme Court of Justice held that Colombia's legislation ratifying the Extradition Treaty was not constitutionally enacted." Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction (DE# 35 at 2, 10/24/16). Therefore, Dr. Leiva argues that "the Extradition Treaty never went into force and is a nullity." k±[1]

         The government[2] opposes the relief requested on the ground that the Treaty remains in effect. In support of its position that the Extradition Treaty remains in effect, the government has filed the Declaration of Assistant Legal Adviser Tom Heinemann of the Department of State. See Supplemental Declaration of Tom Heinemann (DE# 37-1, 10/28/16). Mr. Heinemann attests that "the United States has never considered that the Colombian [Supreme C]ourt's decisions had the effect of terminating or suspending the operation of the [Extradition] Treaty, either as a matter of International law generally or under the express terms of Article 21 ."[3] Id. at ¶4. Mr. Heinemann also attests that:

Colombia has not provided the United States [with] either a notice of termination under Article 21 of the Treaty, or a notice of invalidity or termination under the principles set forth in the Vienna Convention; In the view of the United States, the obligations of the Treaty remain legally binding upon both Parties.

Id. at ¶ 8 (emphasis added).

         At the November 17, 2016 hearing, the government argued that "as long as the [E]xecutive [B]ranch speaks on the matter, as far as the validity of the treaty, ... it is either a political question or this Court should give great deference to [the Executive Branch's] finding." Transcript (DE# 53 at 40, 12/6/16). At the conclusion of the November 17, 2016 hearing, the Court gave the parties an opportunity to submit supplemental filings.

         In its supplemental filings, the government continues to assert that: (1) "the issue of whether a treaty was properly ratified is a nonjusticiable political question" and (2) if the Court were to address the merits, "the view of the U.S. Department of State is alone sufficient to end the inquiry into whether the [Extradition Treaty] is in force." Government's Supplemental Response in Opposition to Emergency Motion to Dismiss Complaint and Vacate Arrest Warrant for Lack of Jurisdiction, and Request for a Hearing (DE# 54 at 2, 11, 12/16/16). Nonetheless, the government has supplemented the record by filing Diplomatic Note S-DM-16-109804, dated December 2, 2016, from the Director of the Office of International Judicial Affairs of the Ministry of Foreign Affairs of Colombia[4] (hereinafter "Diplomatic Note"). See Diplomatic Note (DE# 54-1 at 8-10).

         The Diplomatic Note acknowledges the Colombian Supreme Court's rulings with ...


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