In re Lagadec

394 F.Supp.3d 542

IN RE the EXTRADITION OF HUGHES LAGADEC

No. 5:19-MJ-1571

United States District Court, E.D. North Carolina.

Signed August 12, 2019

James E. Todd, Jr., Federal Public Defender's Office, Raleigh, NC, for Hugues Lagadec.

Certification of Extraditability

ROBERT T. NUMBERS, II, UNITED STATES MAGISTRATE JUDGE

This matter presents the question of whether the court should certify to the Secretary of State that it is appropriate to extradite Hughes Lagadec to France pursuant to an extradition request from that country. After considering the submissions and arguments of the parties, the court determines that it has jurisdiction over both this matter and Lagadec, that there is an extradition treaty in effect between the United States and France, that Lagadec's extradition would be appropriate under the treaty, and that there is probable cause to believe that Lagadec has committed the offenses French officials have charged him with. Thus the court will certify to the Secretary of State that it is appropriate to extradite Lagadec to France.

I. Background

In March 2019, the Government of France transmitted the latest of a series of extradition requests to the United States Department of State seeking the extradition of Hughes Lagadec. Gov Ex. 2. The extradition request arises out of a warrant issued by French authorities for Lagadec's arrest on charges of incestuous sexual assault on a minor of less than 15 years old and corruption of a minor of less than 15 years old. Gov. Ex. 1 at 15–19, 34–35.

The United States filed a complaint for arrest with a view towards extradition against Lagadec in this district in May 2019, which led the court to issue a warrant for his arrest. D.E. 1. The United States arrested Lagadec later that month and the court then ordered that he remain in custody pending the outcome of the extradition proceedings. D.E. 18

The court held an extradition hearing in July 2019 where the United States presented documentary evidence in support of extradition. Lagadec was present and represented by counsel at the hearing. The court also heard argument from both parties on whether it was appropriate to certify Lagadec for extradition.

The charges against Lagadec stem from a complaint filed by his son with French authorities in early 2013. Gov. Ex. 1 at 15. The complaint alleged that between 2008 and 2012 Lagadec touched his granddaughter, who was 14 years old at the time of the complaint, in a sexual manner several times and sent her sexually explicit messages and photographs over the internet. Id.

Authorities interviewed the alleged victim in January 2013, about a week after the victim's father filed the complaint. Id. at 71. During the interview, the alleged victim claimed that Lagadec touched her "breasts, buttocks, and sometimes inside [her] trousers[.]" Id. at 73. The alleged victim claimed that although Lagadec never threatened her, he had physically restrained her while touching her. Id. at 74. In response to questions from the authorities, the alleged victim denied that Lagadec raped her. Id. at 76.

During this interview, the alleged victim also discussed her electronic communications with Lagadec. Id. at 76. She claimed that her grandfather sent her photos of his genitalia and told her that he wanted to have sex with her. Id. at 77. Authorities also asked about a nude photograph of her on her computer. Id. at 76. The alleged victim acknowledged the photo's existence, but said, "it was not for my grandfather and it was not at his request." Id.

Authorities conducted a second interview with the alleged victim in April 2013 to review the findings of an analysis of her computer. Id. at 63. During this interview the alleged victim confirmed that in November and December 2012 she engaged in a series of sexually explicit conversations with Lagadec over an instant messaging service. Id. at 64. The conversations involved Lagadec describing various sexual acts he wanted to perform with the alleged victim. Id. at 64–65. The alleged victim also confirmed that Lagadec sent her nude photos of himself and used a webcam to show the alleged victim that he was touching himself. Id. at 65. The alleged victim again asserted that she never had sex with Lagadec. Id. at 65–66.

The alleged victim appeared before an investigative judge for a hearing in January 2017. Id. at 47. During the hearing the alleged victim described how Lagadec would kiss her on the mouth, touch her breasts both above and underneath her clothes, and have her strip down to her underwear. Id. at 49. She explained that Lagadec would take his clothes off and masturbate while touching her breasts and genitalia. Id. Sometimes he would have the alleged victim take off her underwear. Id. And at times, according to the alleged victim, he would digitally penetrate her. Id. The alleged victim also recounted that "once or twice" she performed oral sex on Lagadec at his request. Id. There were also occasions in which Lagadec allegedly tried to have intercourse with her, but was unable to do so because she moved away from him. Id. at 52. When asked why she did not decline Lagadec's advances, she said, "I did not dare saying anything to my grandfather... I did not dare disobeying him." Id. at 49.

When the investigating judge asked the alleged victim why she had not mentioned several of these items in the past she said, "I do not really like to speak about these facts." Id. at 52.

The hearing also addressed issues related to the electronic communications between Lagadec and the alleged victim. The alleged victim again confirmed that Lagadec engaged in sexually explicit conversations with her, sent her nude photos, and showed himself masturbating on a webcam. Id. at 49–50. According to the alleged victim, Lagadec would ask her to touch her breasts while he masturbated. Id. at 52.

Contrary to her earlier statement, the alleged victim also claimed that Lagadec took a nude photo of her through a webcam. Id. at 51. She claims it was Lagadec's idea to take the photo. Id .

Lagadec denies the allegations that he sexually assaulted the minor victim. Id. at 56. He maintains that the alleged victim and her family are fabricating the allegations against him. Id. at 56. He also claims that the alleged victim raped him in 2012. Id. at 57.

As for the electronic communications, Lagadec claims that he engaged in the explicit conversations with her "to build evidence" that the alleged victim "was portraying herself as an adult on various websites." Id. at 57. He claims that he sent the photographs to the alleged victim at a time when he did not know it to be her but thought he was sending the photos to a woman in her twenties. Id. at 56.

II. Analysis

Extradition proceedings are governed by 18 U.S.C. § 3184 and the terms of the treaty between the country where the fugitive is found and the country seeking extradition. After the fugitive is arrested, they must appear before a judicial official for an extradition hearing so "that the evidence of criminality may be heard and considered." 18 U.S.C. § 3184.

As the Fourth Circuit has explained, "[t]he extradition hearing is not a full trial; rather" it serves to inquire into three issues. Zhenli Ye Gon v. Holt , 774 F.3d 207, 210 (4th Cir. 2014). First, the judicial official must consider "whether there is probable cause to believe that there has been a violation of the laws of the foreign country requesting extradition[.]" Id. The second issue before the court is "whether such conduct would have been criminal if committed in the United States[.]" Id. And, third, the court must consider "whether the fugitive is the person sought by the foreign country for violating its laws." The court will also consider whether there is an extradition between the United States and France, as well as whether the court has subject matter jurisdiction over this matter and personal jurisdiction over Lagadec.

a. Jurisdiction of the Judicial Officer

The statute governing extradition of individuals to foreign countries allow magistrate judges to conduct extradition proceedings if they are authorized to do so "by a court of the United States." 18 U.S.C. § 3184. This court's local rules provide that "[a] magistrate judge ... may conduct extradition proceedings, in accordance with 18 U.S.C. § 3184." E.D.N.C. Local Criminal Rule 5.3(a). Thus the undersigned may conduct the extradition hearing here.

b. Jurisdiction Over the Fugitive

A court has jurisdiction to conduct extradition proceedings over any person found within its jurisdiction. 18 U.S.C. § 3184. Lagadec resided in and was found in Fayetteville, North Carolina, which is within the territorial jurisdiction of the Eastern District of North Carolina. Thus, this court has personal jurisdiction over him for this extradition proceeding.

c. Identity of the Fugitive

Lagadec does not dispute that he is the Hughes Lagadec named in the request for extradition. Based on the materials before the court and the arguments of counsel, the court finds that Lagadec is the person named in the extradition request.

d. Existence of Extradition Treaty

Before certifying that it is appropriate to extradite an individual to a foreign country, a court must determine that there is an extradition treaty in effect between the United States and the requesting country. 18 U.S.C. § 3184. The United States has submitted a declaration from Tom Heinemann, an Assistant Legal Advisor for the Department of State in Washington, D.C. Heinemann asserts that there is an extradition treaty in effect between the United States and France. Gov. Ex. 2. ¶ 2. The treaty is known as the Extradition Treaty between the United States of America and France, with Agreed Minute, signed on 23 April 1996 (the "1996 Treaty"), and the Instrument as contemplated by Article 3, paragraph 2, of the Agreement on Extradition between the United States of America and the European Union signed 25 June 2003, as to the application of the Extradition Treaty between the United States of...