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In re Extradition of Martinelli Berrocal

United States District Court, S.D. Florida

August 31, 2017

IN THE MATTER OF THE EXTRADITION OF RICARDO ALBERTO MARTINELLI BERROCAL

          FINAL ORDER ON THE GOVERNMENT'S MOTION FOR A CERTIFICATE TO EXTRADITE TO PANAMA

          EDWIN G. TORRES, UNITED STATES MAGISTRATE JUDGE.

         One of our nation's greatest Justices, Oliver Wendell Holmes, disfavored lengthy opinions. He preferred a “short little opinion” over a lengthy one “padded” with unnecessary discourse.[1] The following lengthy analysis of the relevant facts and governing law would not be warmly greeted in his Chambers. But given the importance of the outcome to all interested parties, and this Court's obligation to satisfy the requirements of 18 U.S.C. § 3184, we offer a detailed recitation of all the issues raised by the parties and the Court's reasoning.

         Because Justice Holmes has penned or participated in many important decisions that, to this day, define the essential nature of the extradition process, our decision can be distilled to a few paragraphs quoting and paraphrasing those opinions.

         To begin,

It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time. For while, of course, a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas, such 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.[2]

         In our case,

[O]ut of a natural anxiety to save [Pres. Martinelli] if possible from being sent from [Florida] to [Panama] for trial, it has been presented as if this were the final stage and every technical detail were to be proved beyond a reasonable doubt. This is not the law. Form is not to be insisted upon beyond the requirements of safety and justice. Competent evidence to establish reasonable grounds is not necessarily evidence competent to convict.[3]

         And notwithstanding Pres. Martinelli's technical but meritless objections to the process that led to this extradition request,

[His main] objection is that there is no evidence that the defendant is guilty of the crime charged. This is rather a bold contention seeing that [he was President and Head of the National Security Council at a time that the Council was allegedly and unlawfully surveilling the President's political opponents, and using public funds in the process for purely personal gain.] It is unnecessary to go into greater detail. We are of the opinion that probable cause to believe [Pres. Martinelli] guilty was shown by competent evidence. . . .[4]

         As “[w]e are bound by the existence of an extradition treaty to assume that the trial will be fair, ” that is the end of our inquiry. Or as Justice Holmes succinctly declared, “that is enough.”[5]

         * * *

         TABLE OF CONTENTS

         I. BACKGROUND ...................................................................................................... 5

         A. Panama's Request for Extradition ................................................................... 5

         B. The Charges Against Pres. Martinelli ............................................................. 7

         C. The Relevant Treaties ...................................................................................... 9

         D. Disputes Regarding Allegations and Underlying Law ................................. 12

         II. ANALYSIS ............................................................................................................ 16

         A. General Principles of Extradition .................................................................. 18

         B. The Authority to Conduct Extradition Proceedings ...................................... 23

         C. Valid Extradition Treaties Exist .................................................................... 24

         D. The Alleged Crimes Are Extraditable Under the Treaties ........................... 25

         1. The Embezzlement Charges ....................................................................... 27

         2. The Surveillance Charges ........................................................................... 31

         E. Probable Cause Exists for Each Extraditable Charge .................................. 48

         1. The Arrest Warrant and Panamanian Procedures .................................... 52

         2. Immunity Defenses ..................................................................................... 64

         3. Due Process .................................................................................................. 65

         4. The Embezzlement Charges ....................................................................... 73

         5. The Surveillance Charges ........................................................................... 82

         III. CONCLUSION ..................................................................................................... 92

         I. BACKGROUND

         This matter is before the Court on the United States of America's (the “Government”) motion [D.E. 46] for an order certifying the extradition of Ricardo Alberto Martinelli Berrocal (“Pres. Martinelli”) on behalf of the Republic of Panama (“Panama”). Pres. Martinelli timely responded to the Government's motion on August 11, 2017 [D.E. 58] to which the Government replied on August 18, 2017. [D.E. 62]. Therefore, the Government's motion is now ripe for disposition. After careful consideration of the entire record, the evidence presented at the extradition hearings, along with the benefit of oral argument, and the papers applicable thereto, the Government's motion is GRANTED and the Court finds that Pres. Martinelli is extraditable for all four alleged offenses pursuant to the Treaty Between the United States of America and Panama Providing for the Extradition of Criminals, U.S.-Pan., May 25, 1904, 34 Stat. 2851 (the “Treaty”); the U.N. Convention Against Corruption, Dec. 9, 2003, S. Treaty Doc. No. 109-6, 2349 U.N.T.S. 41 (the “UNCAC”); and the Convention on Cybercrime, Jan. 7, 2004, Council of Eur., T.I.A.S. No. 13174, C.E.T.S. No. 185 (the “Budapest Convention”).

         A. Panama's Request for Extradition

         This case involves an extradition request by Panama, approved by the United States Department of State, for the arrest and extradition of Pres. Martinelli - the former President of Panama. The Supreme Court of Panama has requested extradition on the grounds of alleged violations of Panamanian law that occurred while Pres. Martinelli was in office. Pres. Martinelli left Panama and traveled to the United States where he filed an application for asylum in 2015. While that application remains pending, the Department of State and the United States Attorneys' Office here in Miami have now filed this action to authorize his extradition to Panama pursuant to multiple treaties between the United States and Panama.

         Specifically, Pres. Martinelli's extradition is sought by Panama for trial on four charges: (1) interception of telecommunications without judicial authorization, in violation of Article 167 of the Criminal Code of Panama; (2) tracking, persecution, surveillance without judicial authorization, in violation of Article 168 of the same code; (3) embezzlement by theft and misappropriation, in violation of Article 338 of the same code; and (4) embezzlement of use, in violation of Article 341 of the same code. Harry Díaz (“Díaz”), a Justice of the Criminal Chamber of the Supreme Court of Justice of the Republic of Panama, issued an indictment against Pres. Martinelli for these offenses on October 9, 2015. After Pres. Martinelli failed to appear in court when summoned for a hearing on the charges, on December 21, 2015, the Supreme Court issued an order for Pres. Martinelli's arrest. Panama subsequently submitted a request to the United States for Pres. Martinelli's extradition.

         Pursuant to Panama's extradition request, Pres. Martinelli was arrested in on June 12, 2017, in Coral Gables, Florida. He then filed an emergency motion to dismiss [D.E. 12], alleging that Panama had failed to comply with the requirement in the Treaty that it provide a warrant in support of its extradition request; he also filed multiple motions for release on bond. [D.E. 18, 24, 26, 34, 36]. The Government responded to these motions and filed a separate motion seeking Pres. Martinelli's detention. [DE 13, 15, 22, 32]. After holding a hearing on June 20, 2017, we denied Pres. Martinelli's motions and granted the Government's request for detention in an opinion issued on July 7, 2017. [D.E. 38]. The immediate motion pending before the Court arises from the Government's motion for extradition. [D.E. 46].

         B. The Charges Against Pres. Martinelli

         Justice Mejía Edward listed the charges that El Magistrado Fiscal intends to prove against Pres. Martinelli. [D.E. 13-1 at 15-25, ¶27]. According to the charges, Pres. Martinelli:

established an organized apparatus of power acting beyond the Social and Democratic State of Law, and through this apparatus of power instructions were given to officers of The National Security Council, who were fully aware of the illegality of these activities and without a judicial authorization undertook interceptions of electronic communications in various forms, surveillance and tracking of people, which they called targets, who belong to difference political, economic, civic groups and unions of the country, extending this systematic violation of human rights, in some cases, to family and friends of individuals subject to interceptions, surveillance and tracking; and that in order to achieve these activities outside the Constitution and the Law, the organization of State power led by Ricardo Alberto Martinelli Berrocal supplied the equipment, resources, and personnel necessary to achieve the aforesaid illicit activities, using State funds.

Id. at 15-16, ¶27(b). These alleged crimes occurred between 2012 and mid-May 2014, during the time that Pres. Martinelli was in office. Id. at 16, ¶27(c). According to the Government, “[a]n audit conducted by the Comptroller General concluded that the loss to the state sustained as a result of the purchase and disappearance of the surveillance equipment amounted to U.S. $ 10, 861, 857.48.” [D.E. 15 at 6].

         The first alleged crime for which Panama requests Pres. Martinelli's extradition is the:

Crime against the inviolability of secret and the right to privacy (Interception of private telecommunications without judicial authority), provided under Article 167, Title II, Chapter II of the Second Book of The Panamanian Criminal Code, reading as follows:
Article 167. Whoever, without the authorization of the judicial authority, intercepts telecommunications or uses technical devices for listening, transmission, recording, or reproducing conversations that are not for the public shall be punished from two to four years in prison.

[D.E. 13-1 at 26-27, ¶31(a)] (internal quotation marks omitted).

         The second alleged crime for which Panama requests Pres. Martinelli's extradition is the:

Crime against the inviolability of secret and the right to privacy (Tracking, Persecution and Surveillance without judicial authority), provided under Article 168, Title II, Chapter III of the Second Book of The Panamanian Criminal Code, reading as follows:
Article 168. Whoever, without proper authorization, practices tracking, persecution, or surveillance against a person, for illicit purposes, shall be punished from two to four years in prison. The same punishment is imposed on anyone who sponsors or promotes these facts.

Id. at 27, ¶31(b) (internal quotation marks omitted).

         The third alleged crime for which Panama requests Pres. Martinelli's extradition is the:

Crime against the public administration, Different Kinds of Embezzlement (embezzlement by theft or misappropriation), provided under Article 338, Title X, Chapter I of the Second Book of The Panamanian Criminal Code, reading as follows:
Article 338. A public officer who takes or embezzles in any way, or consents that somebody else appropriates, takes or embezzles any form of money, securities or property which administration, collection or custody have been entrusted by virtue of his position, shall be punished from four to ten years in prison.
If the amount of the appropriated exceeds the sum of one hundred thousand dollars (US$100, 000.00) or the money, securities or appropriate goods were intended for welfare purposes or for development programs or social support, the punishment shall be from eight to fifteen years in prison.

Id. at 27, ¶ 31(c) (internal quotation marks omitted).

         The fourth and final alleged crime for which Panama requests Pres. Pres. Martinelli's extradition is the:

Crime against the public administration, different kinds of embezzlement (embezzlement of use), provided under Article 341, Title X, Chapter I of the Second Book of the Panamanian Criminal Code, reading as follows:
Article 341. A public officer who, for purposes other than service, uses in his own or another's benefit, or allows somebody else to use money, securities or property under his charge by reasons of his duties or which are in his custody, shall be punished from one to three years in prison, or its equivalent in daily fines or weekend arrest.
The same punishment shall be applied to the public officer that uses official works or services for his benefit or allows someone else to do it.

Id. at 27-28, ¶ 31(d) (internal quotation marks omitted).

         C. The Relevant Treaties

         Panama formalized its extradition request “pursuant to the Extradition Treaty between the United States of America and the Republic of Panama, signed on May 25, 1904, which entered into force for the United States of America on May 8, 1905, and for the Republic of Panama on April 8, 1905 . . . .” Id. at 3, ¶ 1. The Treaty provides:

The Government of the United States and the Government of the Republic of Panamá mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes and offenses specified in the following article, committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other: Provided, that this shall only be done upon such evidence of Criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.

[D.E. 12-1 at 3].

         Relevant to this case, the Treaty also provides that the signatories shall grant extradition for “[e]mbezzlement by public officers; embezzlement by persons hired or salaried, to the detriment of their employers; where in either class of cases the embezzlement exceeds the sum of two hundred dollars; larceny.” Treaty at Art. II; [D.E. 12-1 at 4]. Further, the Treaty states that “if the fugitive is merely charged with a crime, a duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued, shall be produced.” Treaty at Art. III; [D.E. 12-1 at 5].

         The final relevant article from this Treaty states:

A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character. No person surrendered by either of the high contracting parties to the other shall be triable or tried, or be punished, for any political crime or offense, or for any act connected therewith, committed previously to his extradition. If any question shall arise as to whether a case comes within the provisions of this article, the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition, shall be final.

Treaty at Art. VI; [D.E. 12-1 at 5].

         In addition to the 1904 Treaty, the Government relies on two more recent treaties in its Complaint: the Budapest Convention and the UNCAC. [D.E. 1 at 1]. According to the Budapest Convention, a multilateral treaty to which the United States and Panama are both parties:

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data. A Party may require that the offence be committed with dishonest intent, or in relation to a computer system that is connected to another computer system.

Convention on Cybercrime Art. 3, Nov. 23, 2001, T.I.A.S. No. 13174. The treaty expressly includes an article on extradition, quite relevant here, which provides:

This article applies to extradition between Parties for the criminal offences established in accordance with Articles 2 through 11 of this Convention, provided that they are punishable under the laws of both Parties concerned by deprivation of liberty for a maximum period of at least one year, or by a more severe penalty. [24(1)(a)]
The criminal offences described in paragraph 1 of this article shall be deemed to be included as extraditable offences in any extradition treaty existing between or among the Parties. The Parties undertake to include such offences as extraditable offences in any extradition treaty to be concluded between or among them. [24(2)]

Id. at Art. 24(1)(a), 24(2).

         The third and final treaty relied upon by the government is the UNCAC, another multilateral treaty to which the United States and Panama are both parties, that provides:

Embezzlement, misappropriation or other diversion of property by a public official
Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally, the embezzlement, misappropriation or other diversion by a public official for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position.

UNCAC Art. 17, Oct. 23, 2003, S. Treaty Doc. No. 109-6. The treaty also includes an express provision relating to extradition, which provides:

This article shall apply to the offences established in accordance with this Convention where the person who is the subject of the request for extradition is present in the territory of the requested State Party, provided that the offence for which extradition is sought is punishable under the domestic law of both the requesting State Party and the requested State Party. [1]
Notwithstanding the provisions of paragraph 1 of this article, a State Party whose law so permits may grant the extradition of a person for any of the offences covered by this Convention that are not punishable under its own domestic law. [2]
Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. A State Party whose law so permits, in case it uses this Convention as the basis for extradition, shall not consider any of the offences established in accordance with this Convention to be a political offence. [4]

Id. at Art. 44(1), 44(2), 44(4), Oct. 23, 2003, S. Treaty Doc. No. 109-6.

         D. Disputes Regarding Allegations and Underlying Law

         Pres. Martinelli has disputed both the allegations surrounding his potential extradition as well as the law on which the extradition is based. [D.E. 18-2 at 13, 120-23; D.E. 12 at 1-3; D.E. 18 at 1-2, 7-21]. Regarding Pres. Martinelli's potential immunity for the alleged crimes, he relies on the Panamanian Constitution:

         Article 191. The President and the Vice-President of the Republic are ...


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