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No. 18-14328
In the
United States Court of Appeals
for the Eleventh Circuit
Appellant,
v.
Appellee.
and entities interested in this appeal, as required by Eleventh Circuit Rule 26.1.
Bascuas, Ricardo J.
Doyle, Lauren
Emery, Robert
Greenberg, Benjamin
Haciski, Rebecca
Smachetti, Emily
Smith, Christopher
ii
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Facts
2017, the Extradition Court certified that Minister Arias could be lawfully
Minister Arias petitioned for a writ of habeas corpus relief. DE1; DE12
(amended petition). The district court denied relief, DE37, and Minister Arias
and moved to expedite Minister Arias’ appeal. That motion remains pending
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
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
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
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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
Minister Arias’ arguments are detailed in the extensive brief already filed
with the Court. In essence, the record proves that Colombia never ratified the
jurisdiction and the order of certification — the order whose effect Minister
Mejuto, No. 14-M-515, 2014 WL 2710948, at *3 (EDPA June 13, 2014) (holding
extradition treaty between the United States and [the requesting country] that
3
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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
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
4
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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
this appeal would be available. Denying a stay would destroy the basis for that
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
adequate means to obtain the relief he seeks.”). Yet, the argument Minister
5
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The government should be estopped from opposing the stay under the
government argued:
Given the government’s previous position regarding this appeal and this
III. No party or the public will be harmed by a brief stay under the
circumstances.
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
pressing concern. The record also shows that, during the pendency of its
6
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charged in the Middle District of Florida with drug trafficking since 2010.
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
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
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
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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
contention that the Treaty is in force “due [in part] to the Thanksgiving
holiday,” EC51;
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
8
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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
... 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
Minister Arias’ initial brief exposes the desperate need for guidance from
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
This case also involves American courts taking sides in a political dispute
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
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that brought Minister Arias to the United States. See Initial Brief at 4 & 51.
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
10
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Word Limit. I certify that this brief complies with the type-volume
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
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
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
CASE NO .1:17-CV-23938-JLK
Petitioner,
Defendants.
/
1. BAC K G R O U N D
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
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II. DISCUSSION
A. LegalStandard
interested partiesby granting of a stay, and (4)thepublic interest. Nken v.Holder,129 S.Ct.
Court's decision was clearly erroneous,and therefore should be overturned by the Court of
is to the contrary. Sce,c.g.,M eza v.U S.Attorney Gen.,693 F.3d 1350, 1358 (11th Cir.2012)
each rested on much stronger ground than another country's interpretation of the extradition
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
IV.CONCLUSIO N
them eritson appeal,one ofthe two Sçm ostcritical''factorsaccording to the Suprem e Court,the
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
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
No. 17-10946-E
Petitioner.
On Petitions for Writ ofProhibition from the United States District Court for the
Southern District of Florida
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