United States v. Antonio Fontana , 869 F.3d 464 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0198p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 16-2208
v. │
│
│
ANTONIO P. FONTANA, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cr-20141-1—David M. Lawson, District Judge.
Decided and Filed: August 25, 2017
Before: ROGERS, GRIFFIN, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, for Appellant. Shane Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit,
Michigan, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Following extradition from Canada on twelve federal child-
pornography-related charges, defendant Fontana pleaded guilty to four of those charges. He was
then sentenced in a proceeding in which the sentencing judge took into account, in applying the
applicable sentencing factors under 18 U.S.C. § 3553(a), the fact that after Fontana’s arrest,
investigators discovered videos and images of up to fifty other women, including minors, whom
No. 16-2208 United States v. Fontana Page 2
he had also victimized, none of whom were the basis for Fontana’s extradition. On appeal,
Fontana challenges the district court’s consideration of the additional victims, as he did below, as
a violation of the U.S.-Canada extradition treaty’s “specialty” requirement that he only be
detained, tried, or punished for the crimes for which he was extradited. While an extradited
person may defend his criminal prosecution as beyond the scope of the extradition under the
“specialty” theory, Fontana’s challenge to his sentence fails here because the treaty does not
preclude taking into account activity that is not the basis of the extradition in determining
punishment for the crimes on which the extradition was based, at least as long as such
consideration did not affect the statutory range of that punishment.
In October 2013, Antonio Fontana lived in Pickering, Ontario. He was in his late 50s,
married, with adult children. On the chat website Omegle.com, Fontana posed as a sixteen-year-
old boy named “Jason,” and started talking with a fifteen-year-old minor female living in
suburban Detroit (“Minor Victim One”). Fontana claimed that his computer’s camera was
broken—so that Minor Victim One could not discern his age—and convinced his victim to take
off her shirt. Without the victim’s knowledge, he recorded this act, and then used the threat of
publishing this recording online to take over her life. He forced her to perform more,
increasingly invasive sexual acts, which he recorded and used as additional leverage. He forced
her to be in front of her web camera at certain times, to sleep in a certain position so that she was
visible to the web camera, and to ask for permission to attend social events. He forced her to
convince a friend—a fourteen-year-old female (“Minor Victim Two”)—to perform sexual acts
for him as well, which he also recorded and then began using to threaten the friend as well.
Eventually, Minor Victim One began to suffer from severe depression and tried to cut off
contact. In response, Fontana e-mailed Minor Victim One’s mother the explicit photos he had
taken of her daughter and demanded that his victim get back in touch with him. After this threat
was unsuccessful, Fontana e-mailed more explicit photos to the principal of Minor Victim One’s
school and over eighty members of her church. The mother called the police, who were able to
uncover Fontana’s true identity through the Internet.
Ontario police arrested Fontana on February 23, 2014. By chance, at the time of his
arrest, Fontana was online trying to coerce another minor female into performing sexual acts for
No. 16-2208 United States v. Fontana Page 3
him. Fontana was detained in Canada pending extradition. In March 2014, a U.S. grand jury
indicted Fontana on twelve counts arising out of his conduct towards Minor Victim One and
Minor Victim Two. In June 2015, the Canadian government surrendered Fontana to the United
States to stand trial for these crimes, pursuant to the extradition treaty between the two countries.
See Treaty on Extradition between the United States of America and Canada, Can.-U.S., 27 UST
983, Dec. 3, 1971 (“U.S.-Can. Extradition Treaty”). During the indictment and extradition
process, investigators seized and analyzed Fontana’s computer. The computer was found to have
over 1,000 images and multiple videos of additional women and girls, from which investigators
determined that Fontana had engaged in similar conduct with at least fifty victims. At the time
of Fontana’s sentencing, only a handful of these uncharged victims had been identified, but all
were minors, and most lived in the United States.
Once in the United States, Fontana pleaded guilty to four of the twelve counts for which
he had been indicted: one count of coercing and enticing a minor to engage in illegal sexual
activity, in violation of 18 U.S.C. § 2422(b); one count of producing child pornography, in
violation of 18 U.S.C. § 2251(a); and two counts of using the internet to extort a person, in
violation of 18 U.S.C. § 875(d).
During sentencing, however, the issue arose as to whether to take into account Fontana’s
other, uncharged victims. Even without consideration of his uncharged victims, Fontana’s net
offense level was above the maximum possible under the Sentencing Guidelines, such that the
guidelines recommended incarceration for life. Nevertheless, the Government argued that the
district court should consider the uncharged victims under the 18 U.S.C § 3553(a) factors,
apparently in response to Fontana’s request for a downward variance outside his Guidelines
range.
Fontana objected, arguing that the district court’s consideration of the uncharged victims
violated a provision of the U.S.-Canada extradition treaty providing that: “[a] person extradited
under the present treaty shall not be detained, tried or punished in the territory of the requesting
state for an offense other than that for which extradition has been granted.” U.S.-Can. Extradition
Treaty art. 12(1) (emphasis added). This provision of the treaty incorporates what is known as
the rule of specialty, which provides that “a person who has been brought within the jurisdiction
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of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the
offences described in that treaty, and for the offence with which he is charged in the proceedings
for his extradition.” United States v. Rauscher, 119 U.S. 407, 430 (1886).
The district court, however, overruled Fontana’s objection and held that it could consider
his uncharged victims in sentencing him. In reaching this conclusion, the district court relied
primarily on an Eighth Circuit case, United States v. Lomeli, 596 F.3d 496, 502–03 (8th Cir.
2010), which applied an extradition treaty with Mexico which, like the extradition treaty with
Canada at issue in Fontana’s case, held that an extradited person could not be “detained, tried or
punished” for a separate crime. In particular, the district court found persuasive Lomeli’s
reasoning that the traditions and procedures of the receiving nation’s courts were relevant for
determining the intent of the treaty parties in drafting the extradition treaty, and that “[g]iven the
long-standing practice of United States courts of considering relevant, uncharged evidence at
sentencing,” Lomeli, 596 F.3d at 502 (quotation marks omitted), it would be difficult to conclude
that Mexico did not intend for an extradited defendant to face sentencing enhancements for
uncharged crimes. The district court also considered this circuit’s prior precedent in United
States v. Garrido-Santana, 360 F.3d 565, 578 (6th Cir. 2004), but ultimately suggested that the
case might be distinguishable based on the different treaty language: the U.S.-Dominican
Republic treaty provision in Garrido-Santana held only that “no [extradited] person shall be
tried” for a separate offense, while the U.S.-Canada treaty at issue in Fontana’s case held that
“[a] person extradited . . . shall not be detained, tried, or punished.” After concluding that
consideration of Fontana’s uncharged victims would not violate the rule of specialty, the court
presumably considered these victims in Fontana’s sentence. Nevertheless, the court did grant
Fontana a downward variance and sentenced him to 360 months’ incarceration rather than the
guidelines recommendation of life. Fontana now appeals.
The district court did not violate the rule of specialty by considering Fontana’s other
victims in sentencing for the crimes for which he was extradited.
As an initial matter, we reject the Government’s suggestion that Fontana lacks standing to
make objections to his criminal prosecution on the basis of the treaty provisions incorporating
the doctrine of specialty. The seminal case involving the specialty doctrine, the Supreme Court’s
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case of United States v. Rauscher, 119 U.S. 407 (1886), is flatly inconsistent with such a
conclusion. In Rauscher, Great Britain surrendered a sailor to the United States pursuant to an
extradition treaty with a specialty provision, so that the sailor could stand trial for murder on the
high seas. Id. at 409. Once in the United States, however, the sailor was indicted not for murder,
but for the separate crime of “cruel and unusual punishment.” Id. In response, the defendant
brought a plea to the jurisdiction of the court, arguing that he could not be indicted for cruel and
unusual punishment when he had been extradited for murder. Id. The trial court overruled the
defendant’s plea, but the Supreme Court held that this was error, articulating the rule that “a
person who has been brought within the jurisdiction of the court, by virtue of proceedings under
an extradition treaty, can only be tried for one of the offences described in that treaty.” Id. at
430.
While Rauscher is an old case, it was described with approval in United States v.
Alvarez-Machain, 504 U.S. 655, 659–60 (1992), and it is still good law: an extradited criminal
defendant may not be tried for crimes not the basis for extradition, absent waiver by the treaty
partner, when such is the intent of the treaty, and relief under such a treaty obligation can be
obtained at the behest of counsel for the defendant in the criminal proceeding. This conclusion is
supported by holdings of at least four of our sister circuits. See United States v. Puentes, 50 F.3d
1567, 1572 (11th Cir. 1995); United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994);
United States v. Levy, 905 F.2d 326, 328 n.1 (10th Cir. 1990); United States v. Thirion, 813 F.2d
146, 151 n.5 (8th Cir. 1987).
The Eleventh Circuit’s reasoning in Puentes is particularly compelling:
Of course, the rights conferred under the contract ultimately belong to the
contracting parties, the signatory nations. This does not mean, however, that
provisions of the contract may not confer certain rights under the contract on a
non-party who is the object of the contract. See generally Rauscher. We believe
that Rauscher clearly confers such a right on the extradited defendant.
The extradited individual’s rights, however, need not be cast in stone; rather, the
individual may enjoy these protections only at the sufferance of the requested
nation. The individual’s rights are derivative of the rights of the requested nation.
We believe that Rauscher demonstrates that even in the absence of a protest from
the requested state, an individual extradited pursuant to a treaty has standing to
challenge the court’s personal jurisdiction under the rule of specialty. The courts
which have adopted the contrary holding, in effect, consider the requested state’s
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objection to be a condition precedent to the individual’s ability to raise the claim.
We believe the Supreme Court’s recent opinion in United States v. Alvarez-
Machain, 504 U.S. 655, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) seriously
undermines any vitality that approach may have once possessed.
A grand jury indicted Humberto Alvarez-Machain, a citizen and resident
of Mexico, for participating in the kidnap and murder of United States Drug
Enforcement Administration (DEA) special agent Enrique Camarena-Salazar.
Following unsuccessful informal negotiations between the United States and
Mexico to obtain Alvarez-Machain’s presence in this country, DEA successfully
contracted with certain individuals for Alvarez-Machain’s forcible kidnap and
delivery to the United States. Alvarez-Machain contested the district court’s
personal jurisdiction over him on the grounds that his abduction violated the
extradition treaty between the United States and Mexico. The district court
granted his request and ordered his return to Mexico. The court of appeals
affirmed the district court. The Supreme Court reversed.
The actual holding of the case is that Alvarez-Machain could not contest
the court’s jurisdiction over him under the extradition treaty because he was not
extradited pursuant to treaty proceedings. See Ker v. Illinois, 119 U.S. 436, 7 S.
Ct. 225, 30 L. Ed. 421 (1886). The Court’s analysis, however, rejects the premise
underlying the cases that require the requested nation to object as a condition
precedent to the individual’s ability to claim the benefits of the rule of specialty.
In Alvarez-Machain, the Court rejected the Court of Appeals’s reasoning
that found that the extradition treaty prohibited forcible abduction, but that the
abducted individual could only raise the issue if the offended government had
formally protested. In rejecting the notion of conditionally self-executing treaty
provisions, the Court explained that “if the [e]xtradition [t]reaty has the force of
law . . . it would appear that a court must enforce it on behalf of an individual
regardless of the offensiveness of the practice of one nation to the other nation.”
Alvarez-Machain, 504 U.S. at 667, 112 S. Ct. at 2195–96, 119 L. Ed. 2d at 454
(emphasis added). Importantly, the Court cited Rauscher in support of this
proposition:
In Rauscher, the Court noted that Great Britain had taken the
position in other cases that the Webster-Ashburton Treaty included the
doctrine of specialty, but no importance was attached to whether or not
Great Britain had protested the prosecution of Rauscher for the crime of
cruel and unusual punishment as opposed to murder.
Alvarez-Machain, 504 U.S. at 667, 112 S. Ct. at 2195, 119 L. Ed. 2d at 454
(emphasis added). Alvarez-Machain demonstrates the infirmity in the reasoning of
those cases which require an affirmative protest by the requested nation in order
for the extradited individual to contest personal jurisdiction under the rule of
specialty.
No. 16-2208 United States v. Fontana Page 7
We, therefore, hold that an individual extradited pursuant to an extradition
treaty has standing under the doctrine of specialty to raise any objections which
the requested nation might have asserted. The extradited individual, however,
enjoys this right at the sufferance of the requested nation. As a sovereign, the
requested nation may waive its right to object to a treaty violation and thereby
deny the defendant standing to object to such an action.
Puentes, 50 F.3d at 1574–75 (footnote omitted). This analysis is correct.
To be sure, a Third Circuit case, on the other hand, has stated that “[h]ad [the habeas
petitioner] brought suit invoking . . . the Rule of Specialty, she would lack standing.” United
States ex rel. Saroop v. Garcia, 109 F.3d 165, 168 (3d Cir. 1997). This was pure dictum, as the
court made clear that the petitioner in that case did not invoke the specialty principle. Id. at n.6.
Cases cited by the Saroop court in this connection moreover involved foreign government
consent to limit the international specialty obligation, e.g., United States v. Riviere, 924 F.2d
1289, 1298–1301 (3d Cir. 1991), Leighnor v. Turner, 884 F.2d 385, 390 (8th Cir. 1989), or did
not involve the principle of specialty at all.
Two other cases sometimes cited for the presence of a circuit split on the issue involved
extradition proceedings in the United States and assertions that a foreign state might not comply
with its specialty obligations to the United States, not whether a defendant who had been
extradited to the United States can rely on United States—like Rauscher and Fontana—
obligations under the specialty principle. Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir.
1973); Demjanjuk v. Petrovsky, 776 F.2d 571, 584 (6th Cir. 1985), vacated on other grounds, 10
F.3d 338 (6th Cir. 1993). Shapiro, for instance, noted that Rauscher need not necessarily apply
in that “converse situation.” 478 F.2d at 906. Similarly, our decision in Demjanjuk also
involved such a converse situation and included language regarding specialty which was in any
event clearly dictum. 776 F.2d at 584.
The Government’s brief in this case appears to be fishing for a holding that the principle
of specialty cannot be raised by criminal defendants, without actually making the argument for
our consideration, and without instilling any confidence that the Government would defend such
a holding should certiorari be granted. The Government moreover points to no court of appeals
that squarely holds that criminal defendants in the United States are without standing to assert
No. 16-2208 United States v. Fontana Page 8
the specialty principle. With such a wispy basis for deciding contrary to iconic Supreme Court
precedent, there is no reason for this court to continue to preserve the possibility of such an
argument.
Accordingly, we proceed to the merits of Fontana’s specialty argument. His argument
fails because Fontana is being “punished” quite literally for crimes for which he was extradited.
The fact that other crimes he has committed may affect the extent of the punishment for the
extradition-based crimes does not in ordinary English mean that he is being punished for the
other crimes.
This conclusion is supported by our decision in United States v. Garrido-Santana,
360 F.3d 565, 578 (6th Cir. 2004). In Garrido-Santana, the Dominican Republic surrendered a
defendant for possession of cocaine with intent to distribute. Id. at 568. After the extradition,
the defendant was also indicted on a charge arising out of his failure to appear at a pre-
extradition arraignment, but this charge was later dropped because it was not an offense for
which the defendant had been extradited. Id. at 568, 577. Nevertheless, the district court relied
on this failure to appear at his arraignment to enhance the defendant’s Guidelines calculation,
which was the basis of the defendant’s specialty challenge. Id. at 568. Garrido claimed that his
sentencing enhancement for an uncharged failure-to-appear offense violated the relevant
extradition treaty’s “implicit promise that [the United States] would . . . not punish [the]
defendant for the failure-to-appear offense.” Id. at 577. However, we determined that the
district court’s use of the uncharged offense “did not constitute ‘punishment’ for that conduct so
as to violate any implicit proscription against such punishment in the extradition treaty.” Id. at
578. In reaching this determination, we relied in part on Witte v. United States, in which the
Supreme Court held “that use of evidence of related criminal conduct to enhance a defendant’s
sentence for a separate crime within the authorized statutory limits does not constitute
punishment for that conduct within the meaning of the Double Jeopardy Clause.” See id. at 577–
78 (citing Witte v. United States, 515 U.S. 389, 399 (1995)). While we recognized that Witte was
a double jeopardy case, we noted that “its underlying analytical foundation and, in particular, its
conception of ‘punishment’ is nevertheless instructive.” Id. at 578. Applying this reasoning and
holding from Garrido-Santana, it is clear that the district court’s consideration of Fontana’s
No. 16-2208 United States v. Fontana Page 9
uncharged but related conduct did not constitute “punish[ment]” within the meaning of the U.S.-
Canada extradition treaty, but only an appropriate consideration in determining the sentence for
the crimes for which Fontana was properly extradited. Therefore, as in Garrido-Santana, the
consideration of Fontana’s uncharged victims in determining his sentence does not violate the
rule of specialty.
Also relevant here is the Eighth Circuit’s analysis of similar questions of punishment and
sentencing in Lomeli, 596 F.3d at 503, and Leighnor, 884 F.2d at 390. As the district court
noted, the Lomeli court reasoned that a sentencing enhancement for uncharged crimes did not
violate the rule of specialty in that case because traditions and procedures of the receiving
nation’s courts were relevant for determining the intent of the treaty parties in drafting the
extradition treaty, and that “[g]iven the long-standing practice of United States courts of
considering relevant, uncharged evidence at sentencing,” Lomeli, 596 F.3d at 502 (quotation
marks omitted), it would be difficult to conclude that Mexico did not intend for an extradited
defendant to face sentencing enhancements for uncharged crimes. Similarly, the Leighnor court
reasoned that “the specialty principle generally prohibits indiscriminate prosecution by the
receiving government,” such that specialty was not violated when the United States convicted a
defendant for only the crimes that were the subject of his indictment but took into account other
conduct in making parole decisions. Leighnor, 884 F.2d at 390 (quotation marks and emphasis
omitted). The analysis in both cases is correct.
Fontana makes two arguments to resist this conclusion, but neither is persuasive.
First, Fontana argues that this court should not follow Garrido-Santana because Witte,
the Supreme Court case upon which it relied, was limited by subsequent Supreme Court
decisions. Fontana points to two cases in particular that affected courts’ consideration of
uncharged facts to enhance a sentence: Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne
v. United States, 133 S. Ct. 2151 (2013). In Apprendi, the Court held that a jury must find
beyond a reasonable doubt a fact that increases the penalty for a crime beyond the statutory
maximum. 530 U.S. at 490. Similarly, in Alleyne v. United States, the court held that a jury
must find beyond a reasonable doubt any fact that triggers a statutory mandatory minimum
sentence. 133 S. Ct. at 2158. Fontana also points to two cases that affected the Guidelines:
No. 16-2208 United States v. Fontana Page 10
United States v. Booker, 543 U.S. 220, 245 (2005) and Peugh v. United States, 133 S. Ct. 2072,
2078 (2012). Booker rendered the Guidelines advisory rather than mandatory, 543 U.S. at 245;
Peugh held that an ex post facto violation occurs “when a defendant is sentenced under
Guidelines promulgated after he committed his criminal acts and the new version provides a
higher applicable Guidelines sentencing range than the version in place at the time of the
offense,” 133 S. Ct. at 2078.
Contrary to Fontana’s argument, none of the cases he cites affects the reasoning from
Witte upon which Garrido-Santana relied. Witte held that using related criminal conduct to
enhance a defendant’s sentence “within the authorized statutory limits” does not constitute
“punishment” for double jeopardy purposes. 515 U.S. at 399 (emphasis added). Fontana’s
sentence was within the authorized statutory limits for his crimes; in fact, his sentence of
360 months in prison was below his guidelines range of life. This alone means that neither
Apprendi nor Alleyne affects the relevance of Witte’s reasoning as applied to Fontana’s case via
Garrido-Santana. Booker and Peugh are even less on point.
Fontana also seeks to distinguish the treaty provision at issue in Garrido-Santana from
the one in his case. In Garrido-Santana, we considered a provision from the U.S.-Dominican
Republic extradition treaty holding that “[n]o person shall be tried for any crime or offence other
than that for which he was surrendered.” 360 F.3d at 577 (citing Convention for the Mutual
Extradition of Fugitives from Justice, U.S-Dom. Rep., June 19, 1909, 36 Stat. 2468). Here, the
relevant provision from the U.S.-Canada extradition treaty holds that “[a] person extradited
under the present treaty shall not be detained, tried or punished in the territory of the requesting
state for an offense other than that for which extradition has been granted.” U.S.-Can.
Extradition Treaty art. 12(1) (emphasis added). According to Fontana, the language in these
treaties makes them distinguishable, because the U.S.-Dominican Republic treaty “lacked an
express agreement not to punish the defendant for conduct other than the conduct for which he
was extradited.”
However, the reasoning of Garrido-Santana forecloses this argument. Although the
extradition treaty in Garrido-Santana did not contain the word “punishment,” the court assumed
without deciding that the treaty did contain an “implicit promise” not to punish the extradited
No. 16-2208 United States v. Fontana Page 11
individual for his uncharged crimes. 360 F.3d at 577. We still concluded that the district court’s
consideration of the defendant’s uncharged crime did not constitute “punishment” under the
treaty. Id. Fontana thus cannot distinguish Garrido-Santana, because it addressed the very issue
he raises. Furthermore, as noted above, we also find persuasive the Eighth Circuit’s analysis in
Lomeli, which considered an extradition treaty that does contain the punishment language at
issue here, but nevertheless concluded that the doctrine of specialty does not prohibit a district
court from considering a defendant’s criminal history to determine his advisory Sentencing
Guidelines range. See Lomeli, 596 F.3d at 503.
Finally, Fontana moves to file a supplemental pro se brief arguing that his conviction
should be reversed and remanded to allow him to present a defense to the jury that one of the
victims told him that she was nineteen years old, which he alleges he reasonably believed. We
deny Fontana’s motion. A defendant must present a single brief, not two. Fed. R. App. P. 31(a);
United States v. Montgomery, 592 F. App’x 411, 415 (6th Cir. 2014). This means that we may
properly decline to consider pro se claims brought by a defendant represented by counsel on
appeal. United States v. Williams, 641 F.3d 758, 770 (6th Cir. 2011). There are no
circumstances justifying consideration of Fontana’s supplemental brief here. Among other
things, Fontana’s reasonable-mistake-of-age defense attacks his conviction and not his sentence,
and he unequivocally waived “any right to appeal his conviction” in his plea agreement. Such a
waiver is enforceable so long as it was made knowingly and voluntarily, United States v. Toth,
668 F.3d 374, 377 (6th Cir. 2012), as was the case here. At Fontana’s plea colloquy, the district
court explained the waiver, and Fontana acknowledged that he understood. Furthermore,
Fontana’s pro se brief does not address why this waiver was not made knowingly and
voluntarily, or even address the issue of waiver at all.
For the reasons set forth above, the judgment of the district court is affirmed and
Fontana’s motion to file a supplemental pro se brief is denied.