You are on page 1of 19

Case: 18-14328 Date Filed: 10/30/2018 Page: 1 of 13

No. 18-14328

In the
United States Court of Appeals
for the Eleventh Circuit

Andres Arias Leiva,

Appellant,

v.

Robert Wilson, Warden,

Appellee.

On Appeal from the United States District Court


for the Southern District of Florida

Appellant Andres Arias Leiva’s


Motion for Stay of Extradition Pending Appeal

David Oscar Markus Ricardo J. Bascuas


Florida Bar No. 119318 Florida Bar No. 093157
Lauren Doyle 1311 Miller Drive
Florida Bar No. 117687 Coral Gables, Florida 33146
Markus/Moss PLLC 305-284-2672
40 NW Third Street, Penthouse One
Miami, Florida 33128
305-379-6667

Counsel for Appellant


Case: 18-14328 Date Filed: 10/30/2018 Page: 2 of 13

CERTIFICATE OF INTERESTED PERSONS


AND CORPORATE DISCLOSURE STATEMENT

Appellant Andres Arias Leiva files this Certificate of Interested Persons

and Corporate Disclosure Statement, listing in alphabetical order the parties

and entities interested in this appeal, as required by Eleventh Circuit Rule 26.1.

Arias Leiva, Andres

Bascuas, Ricardo J.

Doyle, Lauren

Emery, Robert

Fajardo Orshan, Ariana

Greenberg, Benjamin

Haciski, Rebecca

King, The Hon. James L.

Markus, David Oscar

O’Sullivan, The Hon. John J.

Santos, Juan Manuel

Smachetti, Emily

Smith, Christopher

ii
Case: 18-14328 Date Filed: 10/30/2018 Page: 3 of 13

Appellant Andres Arias Leiva’s


Motion for Stay of Extradition Pending Appeal

Pursuant to Federal Rule of Appellate Procedure 8, Andres Arias Leiva

moves for a stay of extradition pending appeal and states:

Facts

On August 11, 2016, Colombia brought an extradition complaint against

its former Minister of Agriculture, Andres Arias Leiva. In re of Extradition of

Andres Felipe Arias Leiva, No. 16-23468-MC-JJO (SDFL). On September 28,

2017, the Extradition Court certified that Minister Arias could be lawfully

extradited. Minister Arias has been in custody since.

Minister Arias petitioned for a writ of habeas corpus relief. DE1; DE12

(amended petition). The district court denied relief, DE37, and Minister Arias

timely appealed, DE39. The parties agreed on an expedited briefing schedule

and moved to expedite Minister Arias’ appeal. That motion remains pending

before this Court.

Minister Arias’ initial brief is already filed. It was filed on October 22,

2018. Under the parties’ proposed expedited schedule, the respondent’s brief

would be due on November 12, 2018. Minister Arias’ reply brief would be due

on November 19, 2018.


Case: 18-14328 Date Filed: 10/30/2018 Page: 4 of 13

To preserve his appellate rights, Minister Arias moved in the district

court to stay his extradition pending appeal. Today, the district court denied

that motion. DE48 (attached). The United States has indicated that it intends

to extradite Minister Arias while this appeal is pending unless this Court stays

extradition.

Because the United States has agreed that Minister Arias will not be

extradited during the pendency of this motion for a stay, it is being filed on a

time-sensitive (but not emergency) basis.

Memorandum of Law

This case is unique. The legality of the order sought to be stayed depends

on whether a Treaty that Colombia insists it never ratified and never observes

is in force. The Treaty itself states that it is “subject to ratification.” Treaty, art.

21(1). Yet, the State Department claims, without support, that the Treaty is in

force anyway. The Extradition Court and the Habeas Court both held that they

had to defer to the State Department’s view, despite all the facts in the record.

Without a stay, this claim will never be heard. Minister Arias will suffer

irreparable harm because his appeal will be moot. This factor weighs especially

heavily in this case because this Court previously denied Minister Arias relief,

2
Case: 18-14328 Date Filed: 10/30/2018 Page: 5 of 13

relying on the government’s representation that the appeal now before this

Court would be available to him. Neither Colombia nor the United States will

be affected by the stay. Colombia has denied at least three U.S. extradition

requests for far more serious crimes in the time its request for Minister Arias

has been pending. A brief stay is in the public interest, particularly in light of

the fact that Minister Arias’ initial brief is already filed and the parties have

agreed on an expedited briefing schedule.

I. Minister Arias is likely to succeed on the merits.

Minister Arias’ arguments are detailed in the extensive brief already filed

with the Court. In essence, the record proves that Colombia never ratified the

1979 Extradition Treaty and that the Treaty is expressly “subject to

ratification.” If there is no treaty in force, the Extradition Court lacked

jurisdiction and the order of certification — the order whose effect Minister

Arias seeks to stay — is void as a matter of law. See In re Extradition of

Mejuto, No. 14-M-515, 2014 WL 2710948, at *3 (EDPA June 13, 2014) (holding

that an extradition court’s authority depends on whether “there is a valid

extradition treaty between the United States and [the requesting country] that

is in force through appropriate enabling legislation”).

3
Case: 18-14328 Date Filed: 10/30/2018 Page: 6 of 13

The district court inexplicably asserted in its order denying a stay that

“Petitioner raises no argument that the Court’s decision was clearly erroneous.”

DE48:2–3. That itself is, also, clearly erroneous. See Initial Brief at 27–28

(DE46-1:27–28). The filings supporting the stay request emphasized that both

the Extradition Court and the Habeas Court completely ignored Minister Arias’

principal arguments, including the one based on the Treaty’s plain text. See, e.g.,

DE46:2 (“No one has been able to explain how the 1979 Extradition Treaty is

in effect, given the undisputed fact that Colombia never successfully ratified

it.”). A court does not avoid clear error by refusing to resolve well-supported

legal arguments.

The record shows Minister Arias is likely to succeed because the rulings

against him remain unexplained. The Extradition Court and the Habeas Court

ruled solely on the basis of the State Department lawyer’s unsupported

declaration. He argued that the Treaty is in force — but refused to appear to

explain his reasoning in person. See Initial Brief at 18 & 41. His declaration did

not mention the Treaty’s plain text. In fact, Article 21(1) is mentioned no where

in the record except in Minister Arias’ filings. That can only mean that Minister

Arias’ argument regarding Article 21(1) is valid.

4
Case: 18-14328 Date Filed: 10/30/2018 Page: 7 of 13

II. The irreparable harm that Minister Arias will suffer from the denial
of a stay deserves special consideration in this particular case.

As the district court found, Minister Arias would suffer irreparable harm

if he were to be denied a stay. DE48:3–4. Under the circumstances, this

consideration deserves decisive weight. This Court previously declined to rule

on Minister Arias’ jurisdictional argument because the government argued that

this appeal would be available. Denying a stay would destroy the basis for that

previous denial of relief.

Minister Arias sought to resolve the jurisdictional dispute definitively way

back in March 2017 by seeking a writ of prohibition from this Court. See In re

Andreas Felipe Arias Leiva, No. 17-10946. The argument of course was that the

Extradition Court could not proceed because the Treaty is not in force. This

Court denied that petition for extraordinary relief on the ground that Minister

Arias would be able to obtain relief through a writ of habeas corpus. See Order

(5 Apr 2017) (attached) (“Andres Arias Levia’s Petition for a Writ of Prohibition

is DENIED, as Petitioner has failed to demonstrate that he lacks another

adequate means to obtain the relief he seeks.”). Yet, the argument Minister

Arias raised in that petition for a writ of prohibition remains unanswered.

5
Case: 18-14328 Date Filed: 10/30/2018 Page: 8 of 13

The government should be estopped from opposing the stay under the

circumstances. In its opposition to the petition for a writ of prohibition, the

government argued:

Although the Extradition Court’s certification decision is itself not


a final order and therefore not subject to direct appeal, a limited
collateral review of its order is available through habeas corpus
review by the district court. The scope of permissible review
specifically includes whether the Extradition Court had
jurisdiction. The district court’s decision on habeas may, in turn, be
appealed to this Court. In fact, in the context of a habeas petition,
this Court has previously considered similar challenges to the
validity of a treaty mounted by fugitives. This is not a case where
“appellate review will be defeated if a writ does not issue.”

Response Brief at 14–15. (citations omitted; emphases added).

Given the government’s previous position regarding this appeal and this

Court’s reliance on that position, the stay should issue.

III. No party or the public will be harmed by a brief stay under the
circumstances.

The record establishes that neither Colombia nor the U.S.-Colombian

relationship will incur any injury from affording Minister Arias his right to an

appeal. Minister Arias is wanted only to serve his sentence in Colombia. See

Initial Brief at 7–9. There is no danger of spoliation of evidence or other

pressing concern. The record also shows that, during the pendency of its

6
Case: 18-14328 Date Filed: 10/30/2018 Page: 9 of 13

request for Minister Arias’ extradition, Colombia denied U.S. extradition

requests for more serious crimes:

! On February 22, 2017, Colombia denied a U.S. extradition request to

extradite Hemer Gonzalez-Rivas to the United States. Gonzalez-Rivas was

charged in the Middle District of Florida with drug trafficking since 2010.

! On May 31, 2017, Colombia denied the United States’ request to

extradite Julio Lemos Moreno and released him. Lemos was indicted in New

York for kidnaping Cecilio Padron, a Miami resident and director of the Cuban

American National Foundation, in 2008. Mr. Padron’s family paid a ransom to

keep Lemos from murdering him.

! In April 2018, Colombia denied a U.S. request to extradite Jose Martin

Yama Guacanes, who was indicted in the Southern District of New York for

conspiring to manufacture and sell cocaine and for possessing grenades and an

anti-tank rocket propelled grenade launcher in furtherance of drug trafficking.

If Colombia can outright deny U.S. extradition requests for kidnaping,

drug trafficking, and possession of an anti-tank RPG launcher, then a brief stay

to preserve the appellate rights of a man charged only with non-violent offenses

is amply justified.

7
Case: 18-14328 Date Filed: 10/30/2018 Page: 10 of 13

Further proof that a short stay will cause no harm is that the government

has sought extensions (all without opposition) whenever it needed more time to

buttress its position:

! a 14-day extension to submit its memorandum of law in support of

extradition due in part to the Assistant United States Attorney “travel[ing]

outside of the country on work-related travel,” EC43;

! a 16-day extension of time to submit some evidence in support of the

contention that the Treaty is in force “due [in part] to the Thanksgiving

holiday,” EC51;

! a 14-day extension of time to reply to the relator’s memorandum in

opposition to the extradition, EC86;

! a 27-day extension to respond to the amended habeas petition due in

part to the Assistant United States Attorney going “on leave” for a week during

Christmas, DE13.

A brief stay will harm no one, especially given that Minister Arias’ brief

is filed, and the government controls the timing of its response.

8
Case: 18-14328 Date Filed: 10/30/2018 Page: 11 of 13

IV. A stay is in the public interest.

Without a stay Minister Arias will be denied the right to due process

because his primary claim, which has ample support in the law, has not been

rebutted or even examined. The district court failed to recognize the public

interest, reasoning that raising “‘serious questions’ worthy of appellate review’

... is insufficient ... where [the petitioner] has failed to show likelihood of success

on the merits.” DE48:4. The public interest is not in affording appeals only to

some people and not others.

Minister Arias’ initial brief exposes the desperate need for guidance from

this Court on fundamental questions, including the nature of an extradition

court and the judiciary’s constitutional role in the interpretation of treaties. The

district court’s denial of the requested stay will perpetuate the confusion that

persists among the lower courts in this and other circuits.

This case also involves American courts taking sides in a political dispute

between dueling political factions and successive administrations of a foreign

government. See Initial Brief at 3–5 & 60–62. The public has an interest in

ensuring that the law was correctly applied in such a case. This is especially so

in this case given that the United States and Canada granted asylum to other

9
Case: 18-14328 Date Filed: 10/30/2018 Page: 12 of 13

former Colombian high government officials fleeing the political persecution

that brought Minister Arias to the United States. See Initial Brief at 4 & 51.

WHEREFORE Minister Arias respectfully requests that the extradition

court’s certification of extradition be stayed pending resolution of Minister

Arias’ appeal in this Court.

Minister Arias’ brief is already filed, weeks before it was due. The parties

have agreed to an expedited briefing schedule and the case will be ripe before

Thanksgiving. A stay is just under all the circumstances.

10
Case: 18-14328 Date Filed: 10/30/2018 Page: 13 of 13

CERTIFICATES OF COMPLIANCE AND SERVICE

Word Limit. I certify that this brief complies with the type-volume

limitation of Federal Rule of Appellate Procedure 32(a)(7) because its numbered

pages contain fewer than 1,898 words.

Service. I certify that on October 30, 2018, this motion was filed with the

Clerk of the Court using CM/ECF; that it was served upon the United States

Attorney’s Office through that system.

Respectfully submitted,

_______________________________ _______________________________
David Oscar Markus Ricardo J. Bascuas
Florida Bar No. 119318 Florida Bar No. 093157
Lauren Doyle 1311 Miller Drive
Florida Bar No. 117687 Coral Gables, Florida 33146
Markus/Moss PLLC 305-284-2672
40 N.W. Third Street Penthouse
One Miami, Florida 33128
305-379-6667

Counsel for Appellant

11
Case 1:17-cv-23938-JLK Document 48 Entered on FLSD Docket 10/30/2018 Page 1 of 5
Case: 18-14328 Date Filed: 10/30/2018 Page: 1 of 5

U NITED ST ATE S D ISTR IC T C O U R T


SOUTH ERN DISTRICT OF FLORIDA
M IAM IDIVISION

CASE NO .1:17-CV-23938-JLK

AN D RES FELIPE AR IA S LEIVA ,

Petitioner,

ROBERT W ILSON ,Acting W arden ofthe


FederalDetention CenterM iami,etal.,

Defendants.
/

ORDER DENYING PETITIO NER'S M OTION FO R STAY OF EXTR ADITION


THIS CAUSE comesbefore the Courtupon Petitioner's M otion forStay of Extradition

(DE 40),filed October9,2018.1 Forthereasonscited herein,the Courtfindsthatextradition


should notbestayedpending appeal.

1. BAC K G R O U N D

On July l6,2014,Petitionerwasconvicted by a courtin hishome country ofColom bia

ofembezzlementandanothercrime,andfledtotheUnited States(DE 45,at2). On August11,


2016,in response to Colom bia's request for extradition,the U nited States filed a Com plaint for

Extradition ofthe Petitioner (id.4. M agistrate Judge John J,O'Sullivan held a hearing and
certified the Complaint,putting Petitioner in custody ofthe United States (id.at2-3). On
October27,2017,Petitionertiledahabeaspetition withtheCourt(DE 1),which,afterahearing
before M agistrate Judge A ndrea M .Sim onton,the Courtultim ately denied on O ctober 5,2018

('
.DE 37). Petitionerimmediately appealed the denial,and now seeks a stay ofhisextradition
1ThegovernmentfiledaResponseinOpposition(DE45)onOctober23:,20l8;PetitionerfiledaReply(DE46)on
October24,2018.Accordingly,thismatterisripefordisposition.
1
Case 1:17-cv-23938-JLK Document 48 Entered on FLSD Docket 10/30/2018 Page 2 of 5
Case: 18-14328 Date Filed: 10/30/2018 Page: 2 of 5

pendingtheappeal,citingto FederalRule ofAppellateProcedure8(a)(1), FederalRule ofCivil


Procedure62,andtheAllW ritsAct, 28U.S.C.s1651(DE 40,at1).

II. DISCUSSION

A. LegalStandard

The traditionalfactorsforthe Courtto consideron awarding a stay on appealare (1)


likelihood of success on the merits, (2) irreparable injury absent a stay,(3)injury to other

interested partiesby granting of a stay, and (4)thepublic interest. Nken v.Holder,129 S.Ct.

1749,1761 (2009);Hilton v.Braunskill,l07 S.Ct.2l13,2119 (1987).Nken reaffrmed the


traditionalfactorsand furtherclarified thatthe firsttwo factorsarethe idmostcritical.''N ken,129

S.Ct.at1761.((A stay isnotamatterofright,evenifirreparableinjurymightotherwiseresult,''


butisttan exerciseofjudicialdiscretion ...dependentuponthecircumstancesoftheparticular
case.''1d.at1760-61(internalcitationsand quotation marksomitted).Theparty requesting a
stayhastheburden ofproving astay iswarranted.1d.at1761.

B. The Four FaetorsA pplied to this Case

1. Likelihood of Success on the M erits

Regarding his likelihood ofsuccesson the merits,Petitionerraises no argum entthatthe

Court's decision was clearly erroneous,and therefore should be overturned by the Court of

Appeals. Instead,Petitioner'sargumentisthat%igtlhiscaseisunique''and shouldbe considered


denovobytheCourtofAppealsbecauseoneparty totheextraditiontreaty (Colombia)Sddenies
havingratitieditandneverobservesit''(DE 46,at1).
The Suprem e Courthas m ade clear that a Sibetter than negligible''likelihood of suocess

on appealisinsufficient,Nken,129 S.Ct.at1761,butacase mustraise argum entson which the

CourtofAppealscould reasonably be expected to rule eitherway. Thus,even if,asPetitioner


Case 1:17-cv-23938-JLK Document 48 Entered on FLSD Docket 10/30/2018 Page 3 of 5
Case: 18-14328 Date Filed: 10/30/2018 Page: 3 of 5

contends,thiscasepresentsitunusualcircumstances''(DE 40,at3)orisksunique''(DE 46,at1)


becausethe applicable extradition treaty wastineverratitled by Colombia, and,by itsown terms,

neverentered into force''(DE 40,at4;seealsoDE 46,at2),thisisunlikelytobe suffcientfor


successon appealwherethe partiesdo notdisputethatthe view oftheU .S.Departm entofState

is to the contrary. Sce,c.g.,M eza v.U S.Attorney Gen.,693 F.3d 1350, 1358 (11th Cir.2012)

('.W tandeveryotherCoul'tofAppealsto considerwhetheratreatyhaslapsed havtdeftrredto


theExecutive'sdetermination.''(intemalquotationmarksomittedl).
ln contrast,the three cases Petitionercites holding likelihood of success on the merits

each rested on much stronger ground than another country's interpretation of the extradition

treaty being applied (DE 40,at4,6).SeeNoriega v.Pastrana,No.07-CV-22816-PCH,2008


W L 331394,at *3 (S.D.Fla.Jan.31, 2008) (dia complex interplay between the Geneva
Convention and the extradition treaty''l'
,Martinezv.United States,No.3:14-CV-00174,2014
WL 4446924,at+4 (M .D.Tenn.Spet.9,2014)(the Sixth Amendmentrightto aspeedy trial);
Nezirovic p.Holt,CivilAction No.7:13cv428,2014 W L 30585721,at#1 (W .D.Va.July 7,
2014)('dretrospectiveapplication ofstatutesoflimitations'').Therefore,Petitionerfailstocarry
hisburden on thetirstfactor,which isoneofthe two ''mostcritical.''Nken,129 S.Ct.at1761.

2. Irreparable H arm Absenta Stay

The Supreme Courthasalso made clearthatfisomepossibility ofirreparable injury''is


insufficientfor a stay. Nken, 129 S.Ct.at 1761. Respondent argues that because the U .S.

tssecretaryofStatehasnotyetrendered adecision on gpetitioner'sjsurrender,''theCourt'sdenial


()fastaywillnotdirectlyresultinextradition (seeDE 45,at9).Nevertheless,evenifthereisno
nexus between the Court denying Petitioner a stay and Petitioner's imm ediate extradition,

Petitioner'sinjury may be irreparable insofarashisextradition would rendermoothishabeas


3
Case 1:17-cv-23938-JLK Document 48 Entered on FLSD Docket 10/30/2018 Page 4 of 5
Case: 18-14328 Date Filed: 10/30/2018 Page: 4 of 5

challenge (see DE 40,at5). ln contrast,the alien removalatissueNken itselfwasheld lsnot


categorically irreparable''because tigalliens who are removed may continue to pursue their
petitionsforreview .'' See Nken, 129 S.Ct.at 1761. Regardless,the Supreme Courthas been

clearthat,on itsown and withoutthe othercriticalfactor, tNepossibilityofirreparableinjuryis

insufficientfortheCourtto granta stay. SeeNken,129 S.Ct.at1757(i$


A stay isnotamatterof
right,evenifirreparableinjurymightotherwiseresult.').
3. Injury toOtherInterested Partiesby GrantingofaStay
Regarding the third factor,PetitionercontendsthatColom bia, as an interested party,will

nOtbesubstantially injuredby the Courtissuinga stayon theextradition ofa singleindividual,


whertitisPetitioner,and notColombia,whohasikatalltimesproceeded expeditiously''(DE 40,
at6). However,Respondentarguesthat,in contrastto the Martinez case in which Mexico
waited oversix yearsto requestextradition,M artinez,2014 W L 4446924, at *5,here Colom bia

çsrequested Petitioner'sextradition approximately five months afterhe fled''(DE 45,at


Therefore, as Colombia has not m anifested a iûlack of urgency'' as in M artinez, 2014 W L

4446924,at #5,Petitioner has failed to carry his burden thatthe Court's stay of Petitioner's

extraditionwouldnotsubstantiallyinjureotherinterestedparties.
4. The Public lnterest

Finally,Petitioner argues that a stay is in the public interest because the case poses

Siseriousquestions''worthyofappellatereview (DE 40,at6),butthisisinsufficientforPetitioner


to m eethis burden with this fador where he has failed to show likelihood of success on the

merits. Petitionerhasadvanced no otherreason why a stay would be in thepublicinterest.


Case 1:17-cv-23938-JLK Document 48 Entered on FLSD Docket 10/30/2018 Page 5 of 5
Case: 18-14328 Date Filed: 10/30/2018 Page: 5 of 5

IV.CONCLUSIO N

AsPetitionerhasfailed to carry hisburden, including on thelikelihood ofhissuccesson

them eritson appeal,one ofthe two Sçm ostcritical''factorsaccording to the Suprem e Court,the

Courtcannothere issuea stay ofhisextradition pending appeal. Accordingly,itisORDERED,

ADJUDGED,and DECREED that Petitioner's Motion for Stay ofExtradition (DE 40) is
hereby D ENIED .

DONE and ORDERED in cham bers at the James Lawrence King Federal Justice

Building and United StatesCourthouse, M iami,Florida,this30th dayofOctober 2018.


,

AM ES L RE CE KIN G
UNITED STATES DISTRICT JUD
SOU TH ERN DISTRICT O F FLO D
cc: A lICounselofR ecord
Case: 18-14328
17-10946 Date Filed: 10/30/2018
04/05/2017 Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-10946-E

In re: ANDRES FELIPE ARIAS LEIVA,

Petitioner.

On Petitions for Writ ofProhibition from the United States District Court for the
Southern District of Florida

Before: WILSON and JULIE CARNES,Circuit Judges.

BY THE COURT:

Andres Arias Leiva's Petition for a Writ of Prohibition is DENIED,as Petitioner has

failed to demonstrate that he lacks another adequate means to obtain the relief he seeks. See Ex

Parte Chicago, R.L Paa, Ry. Co., 255 U.S. 273,275-76,41 S. Ct. 288,65 L.Ed. 631 (1921)

(providing that a writ of prohibition will ordinarily be denied "ifthe complaining party has an

adequate remedy by appeal or otherwise"); Kastnerova v. United States, 365 F.3d 980,984-87

(11th Cir. 2004)(reviewing issue of validity of extradition treaty in context ofappeal from denial

of petition for writ of habeas corpus).

Petitioner's motion for stay is DENIED AS MOOT.

You might also like