United States v. Eric Gardiner ( 2008 )


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                  IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                           FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                             ________________________   ELEVENTH CIRCUIT
                                                            MAY 29, 2008
                                                         THOMAS K. KAHN
                                   No. 06-15154
                                                              CLERK
                               Non-Argument Calendar
                             ________________________
    
                         D. C. Docket No. 05-20893-CR-DLG
    
    UNITED STATES OF AMERICA,
    
                                                        Plaintiff-Appellee,
    
                                         versus
    
    ERIC GARDINER,
    
                                                        Defendant-Appellant.
    
                             ________________________
    
                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
    
                                    (May 29, 2008)
    
    Before ANDERSON, HULL and PRYOR, Circuit Judges.
    
    PER CURIAM:
    
         Eric Gardiner appeals his convictions for conspiracy to import cocaine, 21
    U.S.C. §§ 952(a), 963, and conspiracy to commit money laundering, 18 U.S.C.
    
    § 1956(a)(1)(B)(i)-(ii), (h). Gardiner argues that the district court should have
    
    dismissed his indictment because the government allegedly circumvented an
    
    extradition treaty between the United States and the Dominican Republic. We
    
    affirm.
    
                                    I. BACKGROUND
    
          Gardiner, a Bahamian national who was under investigation by the Drug
    
    Enforcement Administration for his distribution of narcotics, entered the
    
    Dominican Republic using a false passport. The use of a false passport violated
    
    the laws of the Dominican Republic, but Gardiner was allowed to enter the country
    
    based on coordination between drug enforcement officials in that country and the
    
    United States. When he learned of Gardiner’s location, Special Agent Manuel
    
    Recio of the United States spoke with Colonel Pablo Jimenez Sanchez of the
    
    Dominican Republic about obtaining custody of Gardiner.
    
          Eleven days after Gardiner entered the Dominican Republic, a grand jury in
    
    the Southern District of Florida returned an indictment that charged Gardiner with
    
    23 separate offenses related to the drug conspiracy. Agent Recio contacted
    
    Interpol to address extradition procedures, but he did not discuss the extradition
    
    treaty between the United States and the Dominican Republic. Interpol explained
    
    
    
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    to the agent that each country had its own rules governing extradition.
    
          The Drug Enforcement Administration did not intend to rely on extradition
    
    procedures. According to its agents, the Dominican Republic could expel any non-
    
    citizen so long as the United State had a valid arrest warrant. Agent Recio
    
    submitted a “red notice application” to Interpol that included a “Prosecutor’s
    
    Agreement to Extradite.” In the agreement, a federal prosecutor agreed to provide
    
    additional information to the Office of International Affairs of the United States if
    
    the federal government wanted a cooperating country provisionally to arrest
    
    Gardiner pending extradition proceedings; draft an extradition request; and notify
    
    the Office if the prosecutor no longer sought extradition.
    
          Interpol issued a “diffusion notice” that alerted other countries that the
    
    United States had issued a warrant for Gardiner’s arrest. The diffusion notice
    
    stated that the United States would “if possible, formally request provisional arrest
    
    with a view toward extradition in accordance with any applicable extradition
    
    treaty[.]” The diffusion notice also requested that a country give the United States
    
    notice “[i]f, in lieu of extradition, [foreign] authorities can exclude, expel, deport,
    
    or otherwise remove” Gardiner.
    
          After receipt of the diffusion notice, Colonel Sanchez received permission
    
    from the Dominican National Director for Drug Control to expel Gardiner, placed
    
    
    
                                                3
    Gardiner under arrest, and made arrangements to transfer Gardiner to federal
    
    agents. Two days later, federal agents took custody of Gardiner at the Santo
    
    Domingo airport. The arrest was described by the Dominican authorities as the
    
    product of a successful joint operation with the United States that ended in the
    
    expulsion of an international drug trafficker.
    
          Gardiner moved to dismiss his indictment. Gardiner argued that, when it
    
    employed Interpol procedures for his arrest, the federal government invoked the
    
    extradition treaty between the United States and the Dominican Republic, and he
    
    was entitled to a hearing in a foreign court before his extradition. In an evidentiary
    
    hearing, Agent Recio testified that Colonel Sanchez arrested Gardiner based on the
    
    diffusion notice and did not receive a copy of the Prosecutor’s Agreement. Recio
    
    explained that Colonel Sanchez believed he could not extradite Gardiner because
    
    the Dominican Republic would not consider extradition of a noncitizen.
    
          The district court denied Gardiner’s motion to dismiss. Gardiner reserved
    
    the right to appeal the decision and pleaded guilty to conspiracy to import cocaine
    
    and conspiracy to commit money laundering. The district court sentenced
    
    Gardiner to two concurrent terms of 220 months of imprisonment and concurrent
    
    terms of five and three years of supervised release.
    
    
    
    
                                               4
                              II. STANDARD OF REVIEW
    
          We review the denial of a motion to dismiss the indictment for abuse of
    
    discretion and we examine related questions of law de novo. United States v.
    
    Noriega, 
    117 F.3d 1206
    , 1211 (11th Cir. 1997).
    
                                     III. DISCUSSION
    
          Gardiner argues, based on the commencement of Interpol extradition
    
    procedures and the language contained in the Prosecutor’s Agreement and the
    
    diffusion notice, that his removal from the Dominican Republic constituted a de
    
    facto extradition. Gardiner argues that the government was required to comply
    
    with the extradition treaty between the United States and the Dominican Republic,
    
    and the failure of the government to grant Gardiner an evidentiary hearing before
    
    extradition entitles him to a dismissal of all charges and release. We disagree.
    
          An extradition treaty often is not the exclusive method by which the United
    
    States can obtain custody of a foreign citizen. A treaty serves to “provide[] a
    
    mechanism which would not otherwise exist, requiring, under certain
    
    circumstances, the [signatory countries] to extradite individuals to the other
    
    country, and establish[es] the procedures to be followed when the Treaty is
    
    invoked.” United States v. Alvarez-Machain, 
    504 U.S. 668
    , 664–65, 
    112 S. Ct. 2188
    , 2194 (1992). For extradition to be the sole method of transfer, the treaty
    
    
    
                                               5
    must expressly prohibit any other method. Id. at 666–69, 112 S. Ct. at 2194–96;
    
    Noriega, 117 F.3d at 1213. Absent an express prohibition, even if a formal
    
    extradition has been initiated, a government may obtain custody of a defendant by
    
    other methods, including abduction, expulsion, or surrender by the host country.
    
    Ker v. Illinois, 
    119 U.S. 436
    , 438, 442–43, 
    7 S. Ct. 225
    , 226, 228–29 (1886).
    
          The district court did not err when it denied Gardiner’s motion to dismiss the
    
    indictment. Gardiner had to establish “by reference to the express language of a
    
    treaty . . . that the United States affirmatively agreed not to seize foreign nationals
    
    from the territory of its treaty partner.” Noriega, 117 F.3d at 1213. Gardiner failed
    
    to establish that the treaty prohibited methods other than extradition to obtain
    
    custody, and the method by which Gardiner was brought into the United States did
    
    not deprive the district court of jurisdiction over Gardiner’s criminal charges.
    
          The denial of Gardiner’s motion to dismiss the indictment is AFFIRMED.
    
    
    
    
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Document Info

DocketNumber: 06-15154

Filed Date: 5/29/2008

Precedential Status: Non-Precedential

Modified Date: 12/21/2014