What follows is a portion of an opinion by Judge Gerard Lynch, a Court of Appeals judge for the Second Circuit who is one of the finest judges in the country. He is certainly one of our brightest. It is unfortunate he was appointed to the Second Circuit only because it limits his chances of being nominated to the Supreme Court where he would have been a historic Supreme Court justice. All of which is to say that any legal issue that he addresses is probably the definite word on that issue. The legal citations have been omitted and the text has been modified to make the opinion more reader-friendly. Following that article is the second part of Judge Lynch’s opinion that deals with the important issue of non bis idem, (double jeopardy) in the context of extradition.
Motion To Limit The Applicable Sentence
Said Judge Lynch:
“Although the maximum sentence for each of the two counts charged in the present indictment is 40 years, which under American law could be made to run consecutively, Defendant argues that the United States assured the Mexican Government that he would not be subject to more than 40 years’ imprisonment and that, pursuant to the Rule of Specialty, which limits the requesting state to prosecute the defendant only for those charges for which he was extradited, the extradited defendant is therefore entitled to an order limiting his maximum applicable sentence to such a term. While this argument is appropriately addressed to this Court, it is without merit.
“The Government concedes that it has assured Mexico that Defendant will not face charges carrying a sentence of death or life imprisonment, as the possibility of such sentences would have caused Mexico to refuse to extradite Defendant at the time the United States sought his extradition. Contrary to Defendant’s contention, however, [the] extradition documents at issue cannot be construed as an assurance to Mexico that Defendant’s sentence would be limited to 40 years. The extradition request issued by the United States included the affidavit of an Assistant United States Attorney that clearly stated that the maximum penalty “for each Count charged in the Indictment” was 40 years. Similarly, Diplomatic Notes identified the “maximum penalty for each of the crimes for which extradition is sought” as 40 years of incarceration.
“Case law (law that comes from legal opinions and not statutes) makes clear that while substantive assurances made to an extraditing nation by the United States about the sentence a defendant faces, or [a]greed-upon sentencing limitations are generally enforceable, a foreign sovereign’s unilateral belief regarding the applicable maximum sentence is insufficient to bind the United States. Thus, even if ambiguous language embodied in the diplomatic Note and the Extradition Order reflects the Mexican Government’s belief regarding the maximum sentence faced by Defendant, it cannot be deemed as either a limitation agreed upon by the United States or the product of an assurance given by the United States.
“If Mexico required such an assurance, it could have sought clarification. [Note to foreign counsel: clear up ambiguous statements!] But there is no reason to believe that the precise length of the maximum term of years faced by Defendant was important to Mexico. Mexico, like most other countries, believes that the American utilization of capital punishment is a barbarous and anachronistic practice that violates international concepts of human rights, [editor’s note: well we know where Judge Lynch stands on that issue!] and it refuses to extradite defendants without an assurance that the death penalty will not be imposed. At the time the United States sought Defendant’s extradition, Mexico took a similar position with respect to life imprisonment. Consequently, the diplomatic Notes took pains to assure Mexico that Defendant faced neither capital punishment nor life imprisonment.
“The clear language of the Extradition Order demonstrates that the only ‘guarantees’ provided by the United States or demanded by Mexico were the assurances that the penalties of death and life imprisonment would not be applied to Defendant. The ambiguous reference to ‘40 years’ was simply evidence of this assurance.
“To the extent that Defendant suggests that because of his age, a sentence of a term of years could nonetheless be tantamount to life imprisonment, this argument was considered by the an Appeals Court and was rejected. There the claim was that an eighteen-year sentence imposed on a 53 year-old defendant was tantamount to life imprisonment and therefore violated the extradition treaty between the United States and Mexico. It did not.
Under American law, the statutes invoked in this indictment clearly authorize consecutive sentences of 40 years on each count. The United States has made no promise or guarantee to Mexico that the maximum sentence authorized by law will not be imposed if Defendant is convicted of both counts charged in the indictment. For the foregoing reasons, defendant’s motion to limit the applicable maximum sentence based on assurances allegedly made by the United States to Mexico, is denied in its entirety.”