United States District Court, S.D. Florida
IN THE MATTER OF THE EXTRADITION OF DANIEL RODRIGO CORREA.
CERTIFICATION OF EXTRADITABILITY AND ORDER OF
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.
CAUSE came before the Court for an extradition hearing on
December 13, 2017. The United States of America, acting on
behalf of the Kingdom of the Netherlands, first filed a
complaint for the arrest with a view toward extradition of
Daniel Rodrigo Correa (hereinafter "Defendant") to
the Netherlands on the charges of unlawful imprisonment,
co-perpetration of the removal of a minor from the custody of
a person who exercises parental authority over him or her,
and participation in a criminal organization. [DE 47]. For
the reasons stated below, this Court GRANTS
the request for an order certifying extradition.
February 23, 2017, the United States filed a Complaint for
Arrest with a View Toward Extradition seeking a warrant for
Correa's arrest, which was issued and executed that same
day. [DE 1]. The United States was acting on the request of
the Government of the Netherlands, pursuant to Article 11 of
the extradition treaty between the United States and the
Netherlands ("the Treaty"). Article 11 provides for
the provisional arrest and detention of alleged fugitives
pending the submission of a formal request for extradition
and supporting documents. [DE 1, ¶¶ 1, 4]. The
Netherlands sought Correa's provisional arrest on one
charge: violently abducting a minor in violation of Article
282 of the Criminal Code of the Netherlands. [DE 1, ¶
April 26, 2017, Defendant filed a Motion to Terminate
Provisional Arrest or in the Alternative to Immediately Set
Bond [DE 20], and on May 3, 2017, the Government filed a
response in opposition to the motion. [DE 23]. The Court held
a hearing on May 8, 2017, and denied Defendant's motion
as to both terminating the provisional arrest and to setting
bond. [DE 26]. In an affidavit dated May 12, 2017, and
entered onto the docket on May 17, 2017, Correa consented to
be extradited to the Netherlands. [DE 29]. On May 25, 2017,
the Court held an extradition hearing and accepted
Correa's consent. The Court entered the Certification and
Committal for Extradition on the single offense identified in
the complaint. [DE 35, ¶ 6].
to the entry of this order, the United States State
Department received the formal request for Correa's
extradition and supporting documents, copies of which were
made available to Correa's counsel. However, both parties
failed to note that the Extradition Request sought
Correa's extradition on three charges rather than one:
(1) co-perpetration of unlawful imprisonment, in violation of
Section 282 of the Dutch Criminal Code; (2) co-perpetration
of the removal of a minor from the custody of a person who
exercises parental authority over him or her, in violation of
Section 279 of the same code; and (3) participation in a
criminal organization, in violation of Section 140 of the
same code. Thus, the Court's certification [DE 35] did
not reflect these three charges but only the single earlier
charge of violently abducting a minor in violation of Article
the certification did not refer to all three charges for
which extradition has been requested, the Secretary of State
did not authorize Correa's surrender, and the Government
has not yet surrendered Correa to the Netherlands. The
Government moved to reopen the extradition proceedings
against Correa in order to obtain a certification for
extradition which refers to all three charges. [DE 40]. After
determining that the Court retained both personal
jurisdiction and subject matter jurisdiction over the
Defendant, and deciding it was in the interest of judicial
economy to reopen the extradition proceedings, the Court
granted the Government's Motion to Reopen Extradition
Proceedings. [DE 46]. The Government filed its Memorandum of
Law in Support of Extradition on November 22, 2017, [DE 47]
and the Court held an extradition hearing on December 13,
to Dutch authorities, Defendant is an associate of Shehzad
Shabbirall Hemani ("Hemani"). Hemani and his wife,
Nadia Rashid ("Ms. Rashid"), were separated in
2015. [DE 47, pg. 3]. On March 1, 2016, a Dutch court awarded
temporary custody of their minor daughter, I.H., to Ms.
Rashid. Id. I.H. was born in 2014. Id. The
Dutch court was scheduled to hold a hearing regarding the
couple's divorce and determination of final custody of
the minor child on September 30, 2016. Id. On
September 29, 2016, three individuals entered Ms.
Rashid's residence in Amsterdam and grabbed the child
from her maternal grandmother. Id. The kidnappers
kicked and beat the grandmother, an aunt, and neighbors who
tried to help the child. [DE 47, pg. 4]. The kidnappers also
used a taser during the abduction. I.H. was taken to India,
where Hemani and Hemani's mother were located.
authorities have arrested five people who they believe were
involved in the abduction. Id. Two of those
individuals advised Dutch authorities that Hemani
orchestrated the abduction and held several meetings to
discuss the plans for the crime. Id. Several of the
arrested individuals also gave statements indicating that
Defendant was heavily involved in the planning of the
abduction, along with Hemani and several other individuals
from multiple countries. Id. The abduction appeared
to have been meticulously planned, including tracking the
location of I.H.'s mother and other family members in
advance of its commission. Id. Co-conspirators
described Correa as the "organizer" of the
abduction, and stated that Correa was responsible for the
transportation of the child over the Dutch/German border.
Id. Hemani reportedly paid those involved in the
abduction €10, 000 in cash. Id.
The December 13, 2017 Extradition Hearing
December 13, 2017 extradition hearing, the Government was
represented by AUSA Diana Acosta. Defendant was present and
represented by Michael Spotts, Esq. At the request of the
Government, the Court admitted Government's Exhibits A, B
and C, which include the Declaration of Tom Heinemann, an
Assistant Legal Adviser in the Office of the Legal Adviser
for the Department of State, Washington D.C., together with
the Diplomatic Note formally requesting the extradition of
Defendant as supplemented by a Note with additional
information and a copy of the applicable Treaty (Exhibit A),
the March 31, 2017 Request for Extradition from the
Netherlands (Exhibit B), and the April 26, 2017 Supplementary
Letter from the Netherlands regarding its prior March 31,
2017 Request for Extradition with attached reports (Exhibit
C) with regard to the Defendant Correa and to the crimes of
which he is accused. The Defendant objected to the exhibits
on the basis that the process on which the exhibits were
based is unconstitutional and in violation of the
4th, 5th, 6th,
8th, and 14th Amendments to the
Constitution, because Defendant was not granted due process
as to the extradition process and because the exhibits
contained multiple layers of hearsay. The Court overruled the
objections and admitted all three exhibits.
request of Defendant, the Court admitted Defendant's
Exhibits 1 and 2. Exhibit 1 comprises the three exhibits
attached to the Defendant's Notice of Filing Documents
for Consideration in the Instant Extradition Proceeding [DE
48]. Exhibit 2 is an email detailing the complicated state of
the passport application of the child at issue in the
underlying criminal case. The Government objected to the
admission of the exhibits on the grounds that they were
contradictory evidence, but the Court overruled the objection
and admitted the exhibits. The Court viewed the defense
exhibits as more akin to explanatory evidence, and not
for Correa argued that the evidence submitted by the
Netherlands was insufficient to rise to the level of probable
cause, and therefore the Court should not certify the
extradition. He also argued that the extradition process is
flawed, and deprives Defendant of several constitutional
rights by violating the 4th, 5th,
6th, 8th, and 14th
Amendments to the U.S. Constitution. Defendant also argued
that two of the counts, co-perpetration of the removal of a
minor from the custody of a person who exercises parental
authority over him or her, in violation of Section 279 of the
Dutch Criminal Code; and participation in a criminal
organization, in violation of Section 140 of the same code,
were not delineated by the extradition treaty, and therefore,
if his extradition is certified, it should only be certified
as to the charge of co-perpetration of unlawful imprisonment,
in violation of Section 282 of the Dutch Criminal Code.
Finally, Defendant asked that if the Court grants
certification, it also grant a stay so that Defendant could
decide whether to file a writ of habeas or to appeal.
ANALYSIS OF APPLICABLE EXTRADITION LAW
hearings are conducted pursuant to 18 U.S.C. §§
3184 - 3196. A foreign or international extradition
proceeding is not a criminal case. Martin v. Warden,
Atlanta, Pen., 993 F.2d 824, 829 (11th Cir. 1993);
Kamrin v. United States, 725 F.2d 1225, 1227-28 (9th
Cir. 1984). "Foreign extraditions are sui
generis in nature, neither civil nor criminal in nature
and set forth their own law." In re Extradition of
Mohammad Safdar Gohir, 2014 WL 2123402, at *6 (D. Nev.
2014); In re Extradition of Vargas, 978 F.Supp.2d
734, 744 (S.D. Texas 2013). The process of formal extradition
is a diplomatic process, governed generally by the applicable
extradition treaty and the federal extradition statute, 18
U.S.C. §§ 3181-3196. In re Extradition of
Mohammad Sadfar Gohir, supra, at *6.
the Federal Rules of Criminal Procedure nor the Federal Rules
of Evidence apply to international extradition proceedings.
Fed. R. Crim. P. 1(a)(5)(A); Fed.R.Evid. 1101(d)(3);
Afanesjev v. Hurlburt, 418 F.3d 1159, 1164-65 (11th
Cir. 2005), cert, denied, 546 U.S. 993 (2005);
Melia v. United States, 667 F.2d 300, 302 (2d Cir.
1981); Bovio v. United States, 989 F.2d 255, 259 n.3
(7th Cir. 1993).
extradition hearing is not a trial on the merits and does not
require proof sufficient to satisfy the factfinder in a
criminal trial." Cheng Na-Yuet v. Hueston, 734
F.Supp. 988, 995 (S.D. Fla. 1990). The purpose of an
extradition proceeding is to decide the sufficiency of the
charge under the treaty, not guilt or innocence. See
Neely v. Henkel, 180 U.S. 109, 123 (1901); Afanasjev
v. Hulburt, supra at 1165 n.11; Martin v. Warden,
supra, 993 F.2d at 828.
certification of extradition may be and usually is based
entirely on the authenticated documentary evidence and
information provided by the requesting government. See,
e.g., Castro Bobadilla v. Reno, 826 F.Supp. 1428,
1433-1434 (S.D. Fla. 1993) (documents and statements
sufficient for extradition to Honduras), aff'd
28 F.3d 116 (11th Cir. 1994). "It is exceedingly rare
for the Government to submit anything other than documents in
support of an extradition request." In re
Extradition of Nunez-Garrido, supra, 829 F.Supp.2d 1277,
1287 (S.D. Fla. 2011). According to the United States Supreme
Court, "one of the principal objectives of the
extradition statute is 'to obviate the necessity of
confronting the accused with the witnesses against him'
by enabling the requesting country to meet its burden of
proof through documents subject only to requirements
necessary to guarantee their authenticity." Id.
(quoting Bingham v. Bradley, 241 U.S. 511, 517
(1916)). "Requiring the requesting country 'to send
its citizens to another country to institute legal
proceedings would defeat the whole object of the
treaty.'" Id. (quoting Bingham,
241 U.S. at 517).
an extraditee is permitted to present evidence tending to
explain or clarify the proof ("explanatory
evidence"), evidence which tends merely to contradict
the requesting country's case ("contradictory
evidence") is inadmissible. Cheng Na-Yuet, 734
F.Supp. at 995. "Because of the circumscribed nature of
an extradition proceeding, the importance of international
obligations and the inherent practical difficulties in
international proceedings, a defendant's right to
challenge evidence against him at an extradition hearing is
limited." Nunez-Garrido, 829 F.Supp. at 1281.
"Generally, evidence that explains away or completely
obliterates probable cause is the only evidence admissible at
an extradition hearing, whereas evidence that merely
controverts the existence of probable cause, or raises a
defense, is not admissible." Barapind v.
Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) (quoting
Mainero v. Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir.
1999)); see also Ordinola v. Hackman, 478 F.3d 588,
608-09 (4th Cir. 2007); Hoxha v. Levi, 465 F.3d 554,
561 (3d Cir. 2006). Courts have determined that affirmative
defenses to the merits of the charge(s) are not to be
considered at extradition hearings. See Charlton v.
Kelly, 229 U.S. 447, 462 (1913); Collins v.
Loisel, 259 U.S. 309, 316-17 (1922); Hooker v.
Klein, 573 F.2d 1360, 1368 (9th Cir. 1978); DeSilva
v. DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997). An
extraditee is not permitted to introduce evidence that seeks
to impeach the credibility of the demanding country's
witnesses. Bovio v. United States, 989 F.2d 255, 259
(7th Cir. 1993).
hearings are akin to a preliminary hearing. In re
Extradition of Shaw, Case No. 14-CV-81475-WM, 2015 WL
3442022, at *4 (S.D. Fla. May 28, 2015); Afanasjev v.
Hurlburt,418 F.3d 1159, 1164 (11th Cir. 2005).
Accordingly, the magistrate judge "does not inquire into
the guilt or innocence of the accused." Id.
(quoting Kastnerova v. United States,365 F.3d 980,
987 (11th Cir. 2004)). Instead, the magistrate judge only
looks to see if there is evidence sufficient to show probable
cause. Id. See also In the Matter of the Extradition of