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In re Extradition of Aguasvivas

United States District Court, D. Massachusetts

July 27, 2018

In the Matter of the Extradition of CHRISTIAN STARLING AGUASVIVAS


          David H. Hennessy, U.S. Magistrate Judge

         In this extradition proceeding, the United States seeks, pursuant to the Extradition Treaty between the Government of the United States of America and the Government of the Dominican Republic, Jan. 12, 2015, T.I.A.S. No. 16-1215, available at docket #23-1 (the “Extradition Treaty”), to extradite Christian Starling Aguasvivas (“Aguasvivas” or the “relator”) to the Dominican Republic to face criminal charges of conspiracy, murder, robbery, association of malefactors, and illegal possession of firearms. Aguasvivas has opposed the Government's extradition request on various procedural and substantive grounds.

         This order addresses evidentiary and discovery issues. Aguasvivas has submitted numerous proposed exhibits, see docket ##39, 40, 41, 43, 48, 56, and has moved to compel the United States to produce certain discovery materials, see docket #46. The Government has contested the admissibility of many of the proposed exhibits and has opposed the motion to compel discovery. The parties argued these matters at hearings held June 8 and June 29, 2018. See docket ##50, 54, 57, 60. At the June 29 hearing, I issued oral rulings concerning most of Aguasvivas's proposed exhibits, and I denied from the bench Aguasvivas's motion to compel. I now expand upon those rulings.

         For the reasons that follow, I admit some of Aguasvivas's proposed exhibits into evidence and find that others are inadmissible. Aguasvivas's motion to introduce provisions of Dominican law, docket #56, is GRANTED. And Aguasvivas's motion to compel discovery, docket #46, is DENIED.


         A. The Shooting

         On December 6, 2013, the Dominican Republic issued a domestic warrant for Aguasvivas's arrest. See docket #23-1 at 63-67. The arrest warrant alleges as follows. In December 2013, Aguasvivas and his brother, Frank Aguasvivas, [1] were together in the Dominican city of Bani, when agents of the Dominican Republic's National Directorate for Drug Control (the “DNCD”) tried to arrest Aguasvivas as part of an anti-drug operation. Id. at 63. During the attempted arrest, Aguasvivas disarmed DNCD Agent Lorenzo Ubri Montero (“Montero”) and shot Montero three times with Montero's gun. Id. Montero died from his wounds. Id. at 63-64. Aguasvivas also shot and wounded two other agents. Id. at 64. Aguasvivas and his brother then fled the scene. Id.

         Three years after the shooting, on December 12, 2016, a prosecutor of the judicial district of Peravia prepared an “[a]ffidavit justificatory” of the Dominican Republic's request for Aguasvivas's extradition. See id. at 54-62. That affidavit alleges that the three DNCD agents allegedly shot by Aguasvivas were conducting an anti-drug operation during which Aguasvivas was arrested and handcuffed. Id. at 57. Aguasvivas's brother Frank was present and protested Aguasvivas's arrest. Id. Aguasvivas then allegedly “took advantage of the distraction of the agents at the time of the intervention of his brother, and, in a surprising way, attacked . . . [Agent Montero], to whom [Aguasvivas] disarmed and killed [sic], [before] opening fire on all the agents of the National Directorate for Drug Control that were present.” Id.

         The prosecutor who authored the justificatory affidavit later signed an additional affidavit supporting extradition. See id. at 89-90. In it, the prosecutor “reaffirm[s]” that a photograph attached to the Dominican Republic's extradition request depicts Aguasvivas. Id. at 90. The prosecutor further avers that the two agents who survived the shooting have identified that photograph as depicting Aguasvivas, who according to those agents is the shooter. Id.

         B. Procedural History

         Eight months after the shooting, Aguasvivas fled the Dominican Republic and illegally entered the United States. Docket #23 at 4. Once in the United States, Aguasvivas sought in Immigration Court asylum, withholding of removal, and relief under the Convention Against Torture, citing fear of the Dominican police. Id. The Board of Immigration Appeals ultimately granted Aguasvivas withholding of removal under the Convention Against Torture, concluding “that it is more likely than not that [Aguasvivas] w[ould] be tortured at the instigation of or with the consent or acquiescence of public official[s] in the Dominican Republic” if he were returned to the Dominican Republic. Id. at 5.

         After being released from immigration custody, on September 15, 2017, Aguasvivas was arrested in Massachusetts on the instant extradition complaint. Docket #28 at 1. The extradition complaint states that the Dominican Republic has charged Aguasvivas with murder, aggravated robbery, conspiracy, and illegal firearm possession, in violation of Articles 265, 266, 295, 304, 379, and 383 of the Dominican Criminal Code, and Article 29, Paragraph III of Dominican Law 36 on Trade and Possession of Firearms. Id. at 1.

         Aguasvivas has proffered the following to contest extradition: an exhibit and witness list, docket #39; a CD containing a video of the shooting, docket #41; a supplement to the exhibit and witness list, docket #43; a notice of intent to introduce a document, docket #48; and a motion to introduce provisions of Dominican law, docket #56. The Government has responded in writing to Aguasvivas's proposed witness and exhibit list. See docket #44.

         Aguasvivas also has moved to compel the United States to produce certain materials in discovery. Docket #46; see also docket #36 (letter from Aguasvivas to the Government respecting discovery). The Government opposes the motion to compel. See docket #42.

         II. LAW

         Extradition proceedings are governed by 18 U.S.C. ch. 209 (“chapter 209”). That statute “establishes a two-step procedure which divides responsibility for extradition between a judicial officer and the Secretary of State.” United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997). The judicial officer's limited responsibilities are set forth at 18 U.S.C. § 3184, which instructs the judicial officer to determine whether the evidence is “sufficient to sustain the charge under the provisions of the proper treaty or convention.” 18 U.S.C. § 3184.

         Here, the applicable extradition treaty provides, “[A] request for extradition of a person who is sought for prosecution shall . . . be supported by . . . such information as would provide a reasonable basis to believe that the person sought committed the offense or offenses for which extradition is requested.” See Extradition Treaty, Art. 7(3)(c), available at docket #23-1 at 25. When then-Secretary of State John Kerry submitted the Treaty to President Obama for approval, he characterized this language as “mirror[ing] the probable cause standard applied in U.S. law.” Extradition Treaty, Dom. Rep.-U.S., Jan. 12, 2015, S. Treaty Doc. No. 114-10, at VIII (2016), available at docket #23-1 at 15. Secretary Kerry's interpretation is entitled to deference. See, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) (citation omitted) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.”); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”); United States v. Li, 206 F.3d 56, 63 (1st Cir. 2000) (en banc) (according “substantial deference” to the United States Department of State's interpretation of treaties). Moreover, the parties do not dispute that the probable cause standard applies. Thus, the Court must determine in the instant proceedings whether each of the charged offenses is supported by probable cause. Under chapter 209, other determinations—including country conditions in the Dominican Republic and whether Aguasvivas may face torture if extradited—are left exclusively to the Secretary of State. See Kin-Hong, 110 F.3d at 109-111.

         Extradition proceedings have distinct evidentiary rules. See id. at 120 (citations omitted) (“Neither the Federal Rules of Criminal Procedure . . . nor the Federal Rules of Evidence apply to extradition hearings.”). Chapter 209 provides that when conducting an extradition hearing, the judicial officer “shall” admit into evidence any “[d]epositions, warrants, or other papers or copies thereof . . . if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes” in the courts of the country requesting extradition. 18 U.S.C. § 3190. A certificate from “the principal diplomatic or consular officer of the United States” residing in the requesting country “shall be proof” that such documents are properly authenticated. Id. Additionally, Article 8 of the Treaty instructs, in relevant part, that documents submitted with an extradition request “shall be received and admitted as evidence in extradition proceedings if . . . they bear the certificate or seal of the Department of Justice, or Ministry of Department responsible for foreign affairs, of the Requesting Party . . . .” Docket #23-1 at 26.

         The relator may submit “explanatory evidence” when contesting extradition. See Koskotas v. Roche, 931 F.2d 169, 176 (1st Cir. 1991) (citations omitted). However, “contradictory evidence” offered by the relator is not properly considered. See id. (citations omitted). “While the line between ‘contradictory' and ‘explanatory' evidence is not sharply drawn, the purpose of permitting explanatory evidence is to afford the relator ‘the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause.'” Id. at 175 (quoting Matter of Sindona, 450 F.Supp. 672, 685 (S.D.N.Y. 1978)). Admissible, i.e., explanatory, evidence thus must be relevant to the question of probable cause. Further, case law emphatically instructs that evidence submitted at an extradition hearing should not turn the hearing into a dress rehearsal for a full trial on the merits. Id. (quoting Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir. 1976)) (citing Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir. 1986)).

         Controlling cases also recognize that, given the circumscribed nature of extradition proceedings, affirmative defenses like self-defense are irrelevant and should not be considered. See Collins v. Loisel, 259 U.S 309 (1922) (finding that the relator's proposed testimony establishing a defense was properly excluded); Charlton v. Kelly, 229 U.S. 447, 458 (1913) (holding that evidence of insanity, though clearly relevant at trial or a competency hearing, was properly excluded at an extradition proceeding); see also In re Harusha, No. 07-x-51072, 2008 WL 1701428, at *5 (E.D. Mich. Apr. 9, 2008) (citing Charlton, 229 U.S. at 462; Collins, 259 U.S. at 316-17) (“Given that a respondent may only introduce explanatory evidence, it follows that affirmative defenses, including self-defense, are not relevant in an extradition hearing and should not be considered.”).

         “[I]t is well-established by case law that [a relator] has no per se constitutional right to discovery.” In re Koskotas, 127 F.R.D. 13, 27 (D. Mass. 1989), aff'd, 931 F.2d 169 (1st Cir. 1991) (quoting Singh, 123 F.R.D. at 123-4, 126-7). Nor does chapter 209 give a relator a right to discovery; at most, one section empowers a court to authorize funds to compel the appearance of witnesses. See 18 U.S.C. § 3191. Discovery in an extradition proceeding thus is both “discretionary with the court” and “narrow in scope.” Koskotas, 931 F.2d at 175; see In re Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986) (citations omitted) (“[D]iscovery in an international extradition hearing is limited and lies within the discretion of the magistrate.”); Jhirad v. Ferrandina, 377 F.Supp. 34, 37 (S.D.N.Y. 1974), aff'd, 536 F.2d 478, 484 (2d Cir. 1976) (“[U]nder the traditional extradition standards discovery is limited and discretionary . . . .”); see also Merino v. U.S. Marshal, 326 F.2d 5, 12-13 (9th Cir. 1963) (upholding the judicial officer's refusal to authorize depositions). When allowed, discovery should be tailored to the question whether there exists probable cause for the crimes for which extradition is sought. See Kraiselburd, 786 F.2d at 1399; Singh, 123 F.R.D. at 111 (finding there is no right to discovery in extradition proceedings, but noting that “if discovery is permissible it must be confined to the purpose of the extradition hearing and to the limitation on defendants' proofs”).


         I now address each of Aguasvivas's proposed exhibits in turn.

         A. Video and audio of the shooting, with transcription and translation

         Aguasvivas has offered a video of the shooting, along with a Spanish transcription and English translation of audio captured on the recording. The Government does not contest the accuracy of the transcription and translation. See docket #54 at 38.

         The video is twenty-eight seconds long. Most of it depicts men in plain clothes struggling to put a man wearing a light blue shirt into a parked car. Aguasvivas concedes that he is the man in the light blue shirt. Docket #39 at 2. Approximately six seconds into the video, a man in a white shirt and baseball cap, presumably Aguasvivas's brother Frank, is seen and heard. He comes near to those struggling with Aguasvivas and yells at them. Agent Montero, seen wearing a black or navy blue shirt, succeeds in forcing Aguasvivas into the car and stands immediately next to Aguasvivas, facing him. Seconds later, three gunshots are heard, and Montero falls to the ground. The camera turns away, and three more gunshots ring out before the video ends.

         I will receive the video, transcription, and translation. The Government does not dispute the video's authenticity. See docket #54 at 21. It captures the shooting of Montero and the moments immediately preceding it; it therefore bears on the question of probable cause. Further, a recording of events, by its nature, is not contradictory. I also note that the video is clear-cut and narrow: its admission does not involve receiving testimony from a witness subject to impeachment or risk turning the extradition hearing into a dress rehearsal trial. Cf. Koskotas, 931 F.2d at 175-76 (instructing that explanatory evidence should be “reasonably clear-cut, ” “of limited scope, ” and should not convert the proceedings “into a dress rehearsal trial”). Though it is less clear whether the video has “some reasonable ...

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