International Extradition: Choice of Forum, Choice of Sentence

At Opinio Juris, Kevin Jon Heller reports the arrest of Juan Carlos Ramirez Abadia, a Colombian national, in Brazil. Ramirez Abadia, a long-time and major narcotrafficker, is the subject of a number of U.S. indictments, including one from 2004 that charges him with drug trafficking and racketeering; the U.S. Government has offered $5 million for information leading to his arrest. Ramirez Abadia's arrest was part of a Brazilian investigation of drug trafficking and money laundering and was made possible with the assistance of the U.S. Drug Enforcement Administration, which, among other things, positively identified Ramirez Abadia, who had had plastic surgery, using voice recognition technology.

According to his attorney, Ramirez Abadia would prefer to be extradited to the United States than be sent to Colombia, which apparently is also interested in prosecuting him. He fears that he would be killed by rivals if he were sent to Colombia. Like a number of countries, Brazil will not extradite a person unless the requesting State promises not to impose the death penalty or sentence the person to more than thirty years imprisonment, should a guilty verdict be returned. Kevin wonders whether the United States will formally satisfy any Brazilian conditions on extradition. Article VI of the extradition treaty between the United States and Brazil does allow the requested State (here, Brazil) to require assurances that the death penalty not be imposed, and it is not unusual for the United States to give death penalty assurances. The treaty, however, does not speak to limitations on a sentence to a particular term of years. Nevertheless, the United States has, in some cases, provided such assurances absent a treaty provision, albeit reluctantly.

A number of recent cases illustrate, however, the trickiness of assurances, particularly for the fugitive. First, any U.S. assurances will need to be explicit. As two recent cases demonstrate, unilateral demands (ex ante or ex post) by the requested State for limitations on sentencing will not be upheld absent explicit return assurances by the United States. See United States v. Cueves, 2007 WL 2142400 (2d Cir. July 27, 2007); Benitez v. Garcia, 2007 WL 2034293 (9th Cir. July 16, 2007). Second, even when the United States does provide explicit assurances, such assurances may not be sufficient to guarantee the sentence envisioned by the requested State. That is because sentencing (at least outside the death penalty context) is a judicial, not executive, decision. Thus, in United States v. Baez, 349 F.3d 90 (2d Cir. 2003), the Second Circuit upheld the life sentence of a person extradited from Colombia. In that case, the U.S. Government had provided the Colombian Government with an assurance that the death penalty would not be sought or imposed, that the United States would not seek a sentence of life imprisonment, and that if one were imposed by the trial judge, the United States would seek to have it commuted to a term of years. Because the executive branch can only promise so much in the context of sentencing, some foreign judges (most notably in Mexico prior to that country's Supreme Court's lifting of its ban on life imprisonment) have refused to certify extradition to the United States when their laws prohibit life sentences or sentences of what they consider to be excessive length. (It gets even more interesting when the U.S. prosecuting authorities are state or local officials.)

There are two other issues raised by Ramirez Abadia's apparent interest in facilitating his extradition to the United States. First, should he be allowed to decide who will try him? It is not unusual for a person to be wanted by two or more countries. Ramirez Abadia is apparently wanted by three countries: Brazil, Colombia, and the United States. Pursuant to the U.S.-Brazil Extradition Treaty, a Brazilian prosecution has priority, if authorities there so desire. If not, there could possibly be competing extradition requests: one from Colombia and one from the United States. Brazilian courts, applying Brazilian law and the applicable treaties, would need to decide which request gets priority, but it is likely that if Ramirez Abadia consents to the U.S. request, that request would be granted. (His consent might also expedite his extradition, which might otherwise take some considerable time.) Kevin rightly scoffs at the oddity of a drug kingpin wanting to be extradited to the United States, but international fugitives, when they have the chance, often seek to choose (or influence the choice of) the forum for their prosecution. (See, for example, the failed extradition of Yevgeny Adamov to the United States from Switzerland.)

Second, Ramirez Abadia assumes that, if extradited to the United States, he would not be sent from the United States to Colombia, either if he were acquitted or after he served his sentence. Is that assumption correct? Maybe yes, maybe no. The U.S.-Brazil Extradition Treaty states that the requesting State cannot re-extradite the fugitive except with the permission of the requested State or if the fugitive remains in the requesting State for thirty days after he has been set a liberty. Thus, according to the Treaty, the United States could only extradite Ramirez Abadia to Colombia if Brazil agreed. The Treaty, however, does not speak to immigration proceedings. So while it would violate the spirit of the Treaty, the United States could place Ramirez Abadia in removal proceedings, which could lead to his deportation (not "extradition") to Colombia. If he were deported to Colombia, though, Ramirez Abadia might still avoid prosecution there if the statute of limitations for his alleged crimes had run. Of course, he might still be in jeopardy from his rivals, which seems to be his main concern, if they were still around.

All this means that there is much for Ramirez Abadia's attorneys to discuss with U.S. Department of Justice officials when they meet to talk about his extradition, as they reportedly will.