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In re Extradition of Aguasvivas

United States District Court, D. Massachusetts

December 6, 2018

In the Matter of the Extradition of CRISTIAN STARLING AGUASVIVAS


          David H. Hennessy U.S. Magistrate Judge.

         The United States seeks to extradite Cristian Starling Aguasvivas (“Aguasvivas” or “the Relator”) to the Dominican Republic to face criminal charges of murder, aggravated robbery, association of malefactors, and illegal firearm possession, in violation of Articles 265, 266, 295, 304, 379, and 383 of the Dominican Criminal Code, and Article 39, Paragraph III of Dominican Law 36 on Trade and Possession of Firearms. Dkt. no. 5, at p. 2. Aguasvivas opposes this request and has moved to dismiss the Government's extradition complaint. Dkt. no. 23 (motion to dismiss); see also dkt. no. 24 (supplemental motion to dismiss); dkt. no. 30 (reply to Government's opposition to Aguasvivas's motion to dismiss); dkt. no. 73 (reply to Government's supplemental memorandum in support of extradition). He contends that the extradition complaint does not comply with the treaty governing extraditions between the United States and the Dominican Republic: 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. 06-1215, 2016 WL 9281220 (available at dkt. no. 23-1) (“the Treaty”). The United States opposes dismissal. See dkt. no. 28 (opposition to motion to dismiss); see also dkt. no. 65 (supplemental memorandum in support of extradition).

         The parties argued the motions to dismiss at a hearing on April 24, 2018. See dkt. nos. 32, 34.[1] The Court also held an extradition hearing on June 29, 2018, at which the parties submitted evidence and made legal arguments addressing whether Aguasvivas is extraditable under the Treaty. See dkt. nos. 57, 60.

         For the reasons that follow, Aguasvivas's motion to dismiss (dkt. no. 23) and supplemental motion to dismiss (dkt. no. 24) are DENIED. Furthermore, I find that the extradition request satisfies the Treaty's requirements and that there is probable cause to believe that Aguasvivas committed murder, aggravated robbery, and illegal firearm possession. I therefore CERTIFY that Aguasvivas is extraditable as to those crimes and ORDER Aguasvivas detained pending both review of the Dominican Republic's extradition request by the Secretary of State and Aguasvivas's potential surrender to the Dominican Republic.


         A. The Shooting

         On December 6, 2013, the Dominican Republic issued a warrant for Aguasvivas's arrest. See dkt. no. 23-1, at pp. 63-67. The arrest warrant alleges that on or about December 6, 2013, [2]Aguasvivas and his brother, Frank Aguasvivas, [3] were together in the Dominican city of Baní. Id. at 63. Three agents of the Dominican Republic's National Directorate for Drug Control (the “DNCD”), Captain Jimenez, Agent Hernandez, and Agent Ubri, tried to arrest Aguasvivas as part of an anti-drug operation. Id. During the attempted arrest, Aguasvivas disarmed and shot Agent Ubri three times using Agent Ubri's gun. Id. Agent Ubri died from his wounds. Id. at 63-64. Aguasvivas also shot Captain Jimenez and Agent Hernandez, who both sustained serious but non-fatal injuries. Id. at 64. Aguasvivas and his brother fled the scene. Id.

         An autopsy report regarding Agent Ubri that was prepared soon after the shooting concludes that Agent Ubri sustained three “[d]istant wound[s] by short-barreled firearm projectile.” See id. at 70-72. The autopsy report recounts that Agent Ubri “with other three agents [sic] tried to arrest and introduce into a vehicle . . . a presumed drug dealer, but they were injured by someone else, who tried to stop the arrest; in the shooting two more agents were wounded and one left unharmed.” Id. at 70. The report lists Agent Ubri's cause of death as “murder.” Id. at 71 (capitalization altered). As for Captain Jimenez and Agent Hernandez, medical certificates document “wound[s] by firearm” and express “[g]uarded prognos[e]s” that their wounds would heal. See id. at 73-74.

         Three years after the shooting, on December 12, 2016, Feliz Sanchez Arias (“Sanchez”), a prosecutor of the Dominican judicial district of Peravia prepared an “[a]ffidavit justificatory” in support of the Dominican Republic's request for Aguasvivas's extradition. Dkt. no 23-1 at 54-62 (Dec. 12, 2016 Sanchez Aff.). Sanchez avers that on December 6, 2013, at 12:30 p.m., Captain Jimenez, Agent Hernandez, and Agent Ubri were conducting an anti-drug operation during which Aguasvivas was arrested and handcuffed. Id. at 57. Frank Aguasvivas was present and protested his brother's arrest. Id. Aguasvivas “took advantage of the distraction of the agents at the time of the intervention of his brother, and, in a surprising way, attacked . . . [Agent Ubri], to whom disarmed and killed [sic], opening fire on all the agents of the National Directorate for Drug Control that were present.” Id. Sanchez avers that Aguasvivas shot and wounded Captain Jimenez and Agent Hernandez. See id.

         Sanchez later signed an additional affidavit in support of the extradition request. See id. at 89-90. In it, Sanchez “reaffirm[s]” that a photograph attached to the extradition request depicts Aguasvivas. Id. at 90. Sanchez further avers:

The same photograph . . . has also been seen and recognized as corresponding to CRISTIAN STARLING AGUASVIVAS a/k/a Momón by the Captain Felipe de Jesús Jiménez García and the officer . . . José Marino Hernández Rodriguez, who are two surviving victims of the shootout attack on the anti-narcotics patrol carried out by CRISTIAN STARLING AGUASVIVAS a/k/a Momón in the city of Baní, Provincia Peravia; they are also eyewitnesses because they saw . . . CRISTIAN STARLING AGUASVIVAS a/k/a Momón . . . disarm, shoot and kill [] the officer . . . LORENZO UBRI MONTERO.

Id. (capitalization in original).

         B. Immigration Proceedings

         Eight months after the shooting, Aguasvivas fled the Dominican Republic and illegally entered the United States. Dkt. no. 23, at p. 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. After nine hearings, several of which included witness testimony, an Immigration Judge denied all requested relief. Id. at 4-5. On appeal, the Board of Immigration Appeals (the “BIA”) reversed and granted Aguasvivas withholding of removal under the Convention Against Torture. Id. at 5. Among other things, the BIA found that witnesses credibly testified that the Dominican authorities had tortured them in an effort to learn Aguasvivas's whereabouts. Id. The BIA concluded “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. (third alteration in original). Aguasvivas was released from immigration custody after the BIA issued its decision. Id.

         C. Procedural History

         On September 15, 2017, Aguasvivas was arrested in Massachusetts on the instant extradition complaint. Dkt. no. 28, at p. 1. According to the extradition complaint, the Dominican Republic has charged Aguasvivas with murder, aggravated robbery, association of malefactors, 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 22; see also dkt. no. 2 ¶ 4.

         Following motions to continue the deadline for filing a motion to dismiss, (dkt. nos. 15, 20, 22) Aguasvivas filed a motion to dismiss the extradition complaint on February 27, 2018 and a supplemental motion to dismiss the complaint on March 1, 2018. Dkt. nos. 23, 24. After full briefing, the parties argued the motion on April 24, 2018. See dkt. nos. 32, 34. The Court then held further hearings on June 8 and June 29, 2018. See dkt. nos. 50, 54, 57, 60.

         On August 1, 2018, the Government submitted a supplementary memorandum in support of extradition. Dkt. no. 65. Aguasvivas filed a response to the Government's supplemental memorandum on October 24, 2018. Dkt. no. 73.


         A. Statutory and Legal Framework

         Extradition proceedings are governed by 18 U.S.C. ch. 209 (“Chapter 209”).[4] “The 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 responsibilities are set forth at 18 U.S.C. § 3184. That section 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. If so, the judicial officer “shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, ” who then “may” order the relator's extradition. Id. Section 3184 further instructs that if the judicial officer makes this certification, the judicial officer “shall” order the relator incarcerated until the extradition is carried out. Id.

         If the judicial officer certifies the relator's extraditability, “[i]t is then within the Secretary of State's sole discretion to determine whether or not the relator should actually be extradited.” Kin-Hong, 110 F.3d at 109 (citing 18 U.S.C. § 3186). The Secretary of State may review the judicial officer's factual findings and legal conclusions de novo. Id. Further, “[t]he Secretary may also decline to surrender the relator on any number of discretionary grounds, including but not limited to, humanitarian and foreign policy considerations.” Id. (collecting authorities).

         Under this division of labor, the judicial officer's inquiry is narrow: it concerns “the existence of a treaty, the offense charged, and the quantum of evidence offered.” Id. at 110. “The larger assessment of extradition and its consequences is committed to the Secretary of State, ” who is best positioned to address matters that implicate U.S. foreign policy.[5] Id.; see also id. at 111 (noting that “another branch of government . . . has both final say and greater discretion in these proceedings”). But while the judicial officer's role is circumscribed, “[t]his is not to say that a judge . . . [in] an extradition proceeding is expected to wield a rubber stamp.” Santos v. Thomas, 830 F.3d 987, 1006 (9th Cir. 2016) (alterations and omission in original) (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011)). Rather, in order to certify an extradition, the judicial officer must find that: (1) the judicial officer has jurisdiction to conduct the extradition proceedings; (2) the extradition court has jurisdiction over the relator; (3) the applicable extradition treaty is in full force and effect; (4) the crime or crimes for which extradition is sought comply with the extradition treaty's terms; and (5) the evidence supports a finding of probable cause as to each offense for which the relator's extradition is sought. Zanazanian v. United States, 729 F.2d 624, 625-26 (9th Cir. 1984) (citation omitted); see also, e.g., Skaftouros, 667 F.3d at 155-56; Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994); Emami v. U.S. Dist. Court for N. Dist. of Cal., 834 F.2d 1444, 1447 (9th Cir. 1987) (citations omitted); Dkt. no. 23, at p. 6 (collecting cases); Dkt. no. 28, at pp. 8-9 (citations omitted). “[A]s the party seeking extradition on behalf of the requesting state, the government bears the burden of demonstrating extraditability.” In re Extradition of Santos, 473 F.Supp.2d 1030, 1037 (N.D. Cal. 2006).

         Extradition proceedings have distinct evidentiary rules. See Kin-Hong, 110 F.3d at 120 (citations omitted) (“Neither the Federal Rules of Criminal Procedure . . . nor the Federal Rules of Evidence . . . apply to extradition hearings.”) (internal citations omitted). 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 state 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. Moreover, Article 8 of the Treaty also instructs, in relevant part, that documents submitted with an extradition request “shall be received and admitted as evidence in extradition proceedings if: (a) they bear the certificate or seal of the Department of Justice, or Ministry or Department responsible for foreign affairs, of the Requesting Party; or (b) they are certified or authenticated in any manner consistent with the laws of the Requested Party.” Dkt. no. 23-1, at p. 26.

         Finally, insofar as the extradition hearing's purpose is to determine whether probable cause supports the relator's extradition, evidence supporting extraditability “may consist of hearsay, even entirely of hearsay.” Kin-Hong, 110 F.3d at 120 (citing Collins v. Loisel, 259 U.S. 309, 317 (1922)).

         B. Relator's Right to Submit Evidence[6]

         A relator may submit “explanatory evidence, ” within the discretion of the district court, when contesting an extradition. See Koskotas v. Roche, 931 F.2d 169, 176 (1st Cir. 1991) (citations omitted). However, “contradictory evidence” 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 explanatory evidence thus must be relevant to the question whether there is probable cause to believe the relator has committed the crimes for which his or her extradition is sought. Further, case law emphatically instructs that “extradition proceedings are not to be converted into a dress rehearsal trial.” 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)).

         C. The Extradition Treaty

         I now summarize the Treaty's relevant provisions. Article 2 of the Treaty defines extraditable offenses. See dkt. no. 23-1, at pp. 22-23. The definition follows the doctrine of “dual criminality.” Under that doctrine, “an accused may be extradited only if the alleged criminal conduct is considered criminal under the laws of both the surrendering and requesting nations.” United States v. Anderson, 472 F.3d 662, 665 n.1 (9th Cir. 2006) (citation omitted). “The purpose of the dual criminality requirement is simply to ensure that extradition is granted only for crimes that are regarded as serious in both countries.” Kin-Hong, 110 F.3d at 114 (citing United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995)). Thus, Article 2 instructs, in relevant part, that “[a]n offense shall be an extraditable offense if, under the laws of both Parties, the maximum applicable penalty is deprivation of liberty for more than one year or a more severe penalty.”[7] Dkt. no. 23-1, at p. 22. The dual criminality doctrine does not require that corresponding criminal offenses in the requesting and extraditing nations be identical. See In re Manzi, 888 F.2d 204, 207 (1st Cir. 1989). Instead, “[i]t is enough if the particular act charged is criminal in both jurisdictions, ” including when the jurisdictions criminalize the act under different names, assign different elements to the relevant crimes, or impose different kinds of liability. Id. (quoting Collins v. Loisel, 259 U.S. at 312). Dual criminality is satisfied so long as “the acts upon which the [relator's] . . . charges are based are proscribed by similar provisions of federal law, [state] law or the law of the preponderance of the states.” Id. (omission and second alteration in original) (quoting Brauch v. Raiche, 618 F.2d 843, 851 (1st Cir. 1980)).

         Article 7 of the Treaty sets forth extradition procedures and required documents. It provides, again in relevant part:

         All extradition requests shall be supported by:

(a) documents, statements, or other types of information that describe the identity, nationality, and probable location of the person sought;
(b) information describing the facts of the offense or offenses and the procedural history of the case;
(c) the text of the law or laws describing the offense or offenses for which extradition is requested and the applicable penalty or penalties; [and]
(d) [a statement from the Requesting Party that its statute of limitations does not bar the relator's prosecution or punishment.]

Id. at 25. Further, where, as here, the relator is sought for prosecution, the extradition request also must contain:

(a) a copy of the warrant or order of arrest or detention issued by a judge or other competent authority;
(b) a copy of the document setting forth the charges against the person sought; and
(c) such information as would provide a reasonable basis to believe that the person sought committed the offense or offenses for which extradition is requested.


         Next, Article 15 adopts the “rule of specialty.” See id. at 28-29. That rule “requires that an extradited person be tried only ‘for the crime[s] for which he has been extradited.'” Anderson, 472 F.3d at 665 n.1 (alteration in original) (quoting Benitez v. Garcia, 449 F.3d 971, 976 (9th Cir. 2006)). The Article provides, in part, the following:

1. A person extradited under this Treaty may only be detained, tried, or punished in the Requesting Party for:
(a) any offense for which extradition was granted, or a differently denominated offense carrying the same or lesser penalty and based on the same acts or omissions as the offense for which extradition was granted, provided such offense is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the competent authority of the Requested Party . . . consents to the person's ...

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