Sunday, September 23, 2007

The Thirty Years' War

United States v. Cuevas, No. 06-0607-cr (2d Cir. August 23, 2007) (Cardamone, Straub, CJJ, Koeltl, DJ

In this case, the defendant Jose Cuevas, who was extradited to the United States from the Dominican Republic, argued, with out success, that a 30-year sentencing cap contained in the extradition decree should apply to him.

Cuevas was charged, in the late 1990's, with drug trafficking and money laundering offenses. He was home in the Dominican Republic at the time and, not unwisely, decided to remain there.

Undeterred, the government initiated extradition proceedings. After much diplomatic back-and-forth, the D.R. handed Cuevas over to American authorities on July 6,2002. Two weeks later, the U.S. received a copy of the extradition decree itself, signed by the president of the D.R. which invoked a treaty requirement that a “no penalty greater than ... thirty years shall be imposed.” Unimpressed with this, Judge Rakoff ultimately sentenced Cuevas to 390 months, or 32 1 /2 years’, imprisonment.

Cuevas appealed, inter alia, on the ground that the sentence was illegally long in light of the extradition decree. In an unpublished order, the Circuit remanded for a hearing on whether the U.S. and the D.R. “reached an agreement as to the sentence that could be imposed.”

On remand, it emerged that, usually, when a foreign country cares about the sentence to be imposed on an extraditee, it requests formal assurances prior to surrendering him. Here, the D.R. made no such request prior to surrendering Cuevas. The district court thus found that the U.S. never agreed to a limitation of the sentence. The extradition decree was irrelevant because the U.S. could not be bound by a condition it learned of only after taking custody. The court also noted that the D.R. know of the over-long sentence, buthad not protested it.

The Circuit affirmed. Nothing in the extradition treaty itself seemed to help Cuevas, and the court was singularly unimpressed with the extradition decree; the “Dominican Republic’s unilateral belief” that Cuevas would not be sentenced to more than 30 years’ imprisonment “is insufficient to bind the United States.”

Cuevas also relied on the U.N. Convention Against Illicit Traffic in Narcotic Drugs, a treaty that both the U.S. and the D.R. have signed. He argued that under this Convention, the U.S. had agreed that Dominican law would control the conditions of extraditions. The court rejected this interpretation of the treaty, finding that in this case the domestic law of the D.R. was not binding here.

The Circuit did, however, remand the case for resentencing because this was a pre-Booker sentencing and it could not say “with certainty” that the district court would not have imposed a non-Guideline sentence “had it perceived this to be a possibility.”

Post-Script: As of this writing, Judge Rakoff has not yet resentenced Cuevas. Let’s hope he sees the light this time. This is a particularly unfair case - the D.R. clearly expected that Cuevas would not get more than 30 years’ imprisonment, and the decree to that effect was dated four days before he was turned over to the U.S., even if it was not received until later. The equities, if not the law, clearly side with Cuevas. Given the relatively minor differences involved, it would not really be the end of the world if the judge were to give him 30 years - the bottom the Guideline range - instead of 32 1 /2.

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