In September, 1998 Juan Cuevas was indicted for conspiring to distribute and to possess with intent to distribute five kilograms or more of cocaine. Arrest warrants were issued for all the defendants named in the indictment and several defendants were quickly apprehended. However, Mr. Cuevas was living in the Dominican Republic at the time and escaped arrest.
In April, 1999 a superseding indictment charged Cuevas with conspiracy to launder money and participation in a money laundering transaction. In July, the United States Attorney’s Office for the Southern District of New York, aware of the fact that Mr. Cuevas was living abroad, began the process of requesting his extradition. The United States Embassy in Santo Domingo asked that the government of the Dominican Republic arrest Mr. Cuevas in anticipation of his extradition to the United States. A formal request for extradition was made three months later and acknowledged by the Dominican Republic.
After receiving the request, Mr. Cuevas was arrested by Dominican authorities. In July of 2002, the Dominican Republic transferred custody of Cuevas to the United States. Two weeks later, after the transfer of custody, the United Sates received a decree signed by the President of the Dominican Republic which authorized the extradition. The decree stated, “[I]t is understood that [Juan Cuevas] [is] covered by the provisions of Article 4, Paragraph II of Law number 489. . .” The provision of Law number 489 states, “In extradition treaties signed by the Dominican State with other States, when the extradition of a national is granted, no penalty greater than the maximum established in this country, which at the moment this law enters into force is thirty years, shall be imposed.”
Cuevas pled guilty to all counts of the indictment in the Southern District of New York. At sentencing, the court determined that Mr. Cuevas’s offense level was 42, a Guidelines range of 360 months to life imprisonment, and sentenced Cuevas to 390 months (32 years and 6 months). Cuevas appealed the sentence on the grounds that it was not in accordance with the decree authorizing extradition, and therefore illegal.
The Court of Appeals for the Second Circuit decided that it could not determine “whether the United States and the Dominican Republic reached an agreement as to the sentence that could be imposed upon Cuevas,” and directed the District Court “to conduct an evidentiary hearing on the issue, make factual findings, and if necessary, reconsider its prior rulings and modify the judgment.” Cuevas, 112 Fed. Appx. at 807. As instructed, the District Court held several hearings on the matter.
The government argued that the Dominican Republic did not request a “formal assurance” for a limitation in sentencing before surrendering Cuevas and that there were no diplomatic communications between the United States and the Dominican Republic between the time that the extradition request was acknowledged in 1999 and when custody of Cuevas was transferred to the United States in 2002. United States v. Cuevas, No. 03-1143-cr (2d. Cir. Jul. 27, 2007). If the Dominican government had any interest in securing a formal assurance from the United States, it certainly did not express those interests as would typically be expected. As a result, the District Court found that, despite the decree from the Dominican Republic limiting the sentence of an extradited national, the United States could not “be bound by a condition it only learned of after taking custody [of the defendant].” Cuevas, 402 F. Supp. 2d at 507. The sentence was to remain as it had been imposed.
After the District court decided that Cuevas’s original sentence was correct, Cuevas reinstated his appeal. The Court of Appeals for the Second Circuit then reviewed the international principle of specialty, the U.N. Convention and the 1909 extradition treaty between the United States and the Dominican Republic. All failed to support Cuevas’s appeal for the same reasons – “The Dominican Republic did not make adherence to Law No. 489 a mandatory condition of extradition,” and the United States never made any assurances to the Dominican Republic that Cuevas would not receive a sentence of more than 30 years if convicted. United States v. Cuevas, No. 03-1143-cr (2d. Cir. Jul. 27, 2007) (emphasis added). “The Dominican Republic’s unilateral belief that Cuevas would be covered by Law No. 489 [was] insufficient to bind the United States.” Id. The Court of Appeals affirmed the District Court’s conclusion that a sentence of 390 months was not illegal.
Had the Dominican government received assurance from the United States that Cuevas would not receive a sentence of more than 30 years’ imprisonment, as stated in Law No. 489, before transferring custody to the United States, only then would the District Court’s sentence of 390 months’ imprisonment have been considered illegal. Conditions of extradition must be negotiated before the transfer takes place. Foreign attorneys need to be aware that local law is only binding if it is agreed to before the extradition takes place and before custody is transferred.
Furthermore, if conditions of extradition are not met by the country requesting extradition, the country that grants extradition must voice disapproval. In the case of Cuevas, the Dominican Government was informed of the sentence imposed by the District Court but failed to protest it when their conditions were not met. A country granting extradition of its nationals must be prepared to challenge a sentence or a verdict if it feels that its conditions of extradition have not been met.