United States District Court, D. Massachusetts
In the Matter of the Extradition of CRISTIAN STARLING AGUASVIVAS
ORDER, CERTIFICATION OF EXTRADITABILITY, AND ORDER OF
H. Hennessy U.S. Magistrate Judge.
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).
parties argued the motions to dismiss at a hearing on April
24, 2018. See dkt. nos. 32, 34. 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.
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.
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, Aguasvivas and his brother, Frank
Aguasvivas,  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.
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.
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
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
Id. (capitalization in original).
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.
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
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.
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.
LEGAL BACKGROUND AND STANDARD OF REVIEW
Statutory and Legal Framework
proceedings are governed by 18 U.S.C. ch. 209 (“Chapter
209”). “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.
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).
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. 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).
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.
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)).
Relator's Right to Submit Evidence
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)).
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.” 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)).
7 of the Treaty sets forth extradition procedures and
required documents. It provides, again in relevant part:
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
Id. at 25. Further, where, as here, the relator is
sought for prosecution, the extradition request also must
(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.
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
(c) any offense for which the competent authority of the
Requested Party . . . consents to the person's ...