United States v. Fraser

United States of America, Plaintiff, v. Ricardo Fraser, Defendant.

No. 20-00170MJ-001-PHX-MTM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 17, 2021

ORDER

Before the Court is the government's request to certify the extradition of Ricardo Fraser, submitted on behalf of the Government of France. The French government seeks extradition pursuant to the Extradition Treaty Between the United States of America and France, with Agreed Minute, signed on 23 April, 1996. ("Treaty"). This Court conducted an extradition hearing on May 5, 2021. (Doc. 46). For the reasons explained below, the Court concludes that the government has failed to establish probable cause sufficient to support certification of extradition.

I. Procedural History.

On October 3, 2019, the High Court (Tribunal de Grande Instance) of Pointe-a-Pitre issued an arrest warrant for Fraser. (Doc. 43-1, Ex. 1 at 61-2).¹ On October 6, 2020, the Government of France submitted a formal request to the United States Department ofState for the extradition of Fraser. (Doc. 43-1, Ex. 1 at 6).² The government, appearing on behalf of the Government of France, filed a Complaint (doc. 1) on July 14, 2020. On September 3, 2020, this Court ordered Fraser detained pending an extradition hearing. (Doc. 8). After several continuances (docs. 11, 13, 26, 30, 41, 45), the Court conducted an extradition hearing on May 5, 2021. (Doc. 46). Fraser appeared via teleconference.³

II. The Extradition Request.

The Court recounts the facts presented by the government in support of extradition. On July 14, 2019, United States citizens Bria Robinson and Hasani Watson were stopped by French customs officials in Guadeloupe, a French overseas department located in the Lesser Antilles island chain in the Caribbean Sea. A search of Robinson and Watson's suitcases by French authorities found three packages of cocaine totaling 4.276 kilograms.⁴ (Doc. 43-1, Ex. 1 at 51).

Robinson and Watson identified Fraser as having sent them to Guadeloupe. Robinson and Watson told French authorities that Fraser had wired them money via Western Union and sent them to Saint Martin to collect cocaine from an unidentified third-party. (Id). After the cocaine was collected, Robinson and Watson were to travel to Paris, France via Guadeloupe. (Id). The French government referenced that it is in possession of SMS messages between Fraser and Robinson that "explicitly referred to the delivery of suitcases and the collection of money." (Id).

III. Analysis.

A. General Principles of Extradition.

Five requirements must be met for the Court to certify extradition. (1) The Court must have subject matter jurisdiction to conduct the extradition proceeding; (2) the Courtmust have personal jurisdiction over the extraditee; (3) the applicable extradition treaty remains in force and effect; (4) the requesting government is seeking to extradite the extraditee for offenses covered by the extradition treaty; and (5) there is competent evidence that the extraditee committed the offenses for which the requesting government seeks extradition. Santos v. Thomas, 830 F.3d 987, 991 (9th Cir. 2016).

At the extradition hearing, Fraser conceded that the first four requirements—subject matter jurisdiction, personal jurisdiction, the existence of an applicable extradition treaty, and whether the charged offenses are covered by the treaty—are met. (Doc. 56, Tr. 28:23-29:1). In addition, the Court independently concludes that the first four requirements have been met in this case.

A. Subject Matter Jurisdiction.

The Court has subject matter jurisdiction. Rule 57.6(d)(15) of the Local Rules of Criminal Procedure delegates to United States Magistrate Judges in the District of Arizona the responsibility of conducting extradition proceedings consistent with 18 U.S.C. § 3184. See also In re Extradition of Madrid, No. MJ-09-01603-TUC-BGM, 2013 WL 265205 at *1 (D. Ariz. Jan. 18, 2013). This Court may exercise subject matter jurisdiction over this extradition proceeding.

B. Personal Jurisdiction.

The Court has personal jurisdiction over Fraser. In an extradition proceeding, personal jurisdiction lies in the judicial district where the extraditee is located. In re Extradition of Mathison, 974 F. Supp. 2d 1296, 1311 (D. Or. 2013). Fraser was detained in Florence, Arizona on August 27, 2020. (Doc. 9).

C. Applicable Extradition Treaty.

The extradition treaty between the United States and France is in effect. According to Stacy Hauf, Attorney Adviser in the Officer of the Legal Adviser for the Department of State, the treaty between the United States and France governing extradition is "in full force and effect." (Doc. 18-1, Ex. 1 at 2). The State Department's determination as to the status of the extradition treaty is entitled to deference. Matter of Extradition of Mainero,990 F. Supp. 1208, 1217 (S.D. Cal. 1997). The Court concludes the Treaty is valid and in effect at the time of this Order.

D. Offenses Covered by Treaty.

For an offense to be covered by the extradition treaty, the Court considers whether the offense (1) is listed as an extraditable crime in the treaty; (2) whether the alleged conduct is criminalized in both countries; and (3) whether the offenses in both countries are "substantially analogous." United States v. Knotek, 925 F.3d 1118, 1128-29 (9th Cir. 2019). In deciding whether the offenses are "substantially analogous," the Court considers whether "[t]he essential character of the transaction is the same, and made criminal by both statutes." Id. at 1131 (internal citations omitted).

1. Extraditable Crime.

The Court concludes the offenses the French government alleges Fraser committed are covered by the extradition treaty. The extradition treaty covers all offenses "if they are punished under the laws in both States by deprivation of liberty for a maximum of at least one year or by a more severe penalty." (Doc. 18-1, Ex. 1 at 14). The treaty also covers offenses that "consist[] of an attempt or a conspiracy to commit, or participation in the commission of an offense covered by the treaty. (Id).

Fraser noted in his extradition brief that at least some of the alleged conduct did not occur in the United States or France. (Doc. 23 at 4). This is because, according to Fraser, the offenses described by the French government took place at least in part on the island of Saint Martin. (Id). Saint Martin, according to Fraser, is only partially administered by the government of France; another significant portion of the island—Sint Maarten—is considered a "constituent country" of the Kingdom of the Netherlands. (Id, citing Sint Maarten, CIA World Factbook, 2021).⁵ The French government acknowledgesthat Robinson and Watson took possession of the cocaine in Sint Maarten, the Dutch portion of the island. (Doc. 18-2, Ex. 2 at 43).

The Court concludes the Treaty is applicable here even though some conduct may have occurred in the Netherlands. The extradition treaty also provides for extradition "for an extraditable offense committed outside the territory of the Requesting State, when the laws of the Requested State authorize the prosecution or provide for the punishment of that offense in similar circumstances." (Doc. 18-1, Ex. 1 at 15). Robinson and Watson were detained by French customs authorities in Guadeloupe, which is a French Overseas Department. See Arno v. Club Med. Inc., 22 F.3d 1464, 1467 n.1 (9th Cir. 1994) ("Guadeloupe is a French Overseas Department, as much a part of France as Hawaii is of the United States"). Even if some of the alleged criminal conduct occurred outside of France, there is more than sufficient basis to conclude that the underlying offenses allegedly aided and abetted by Fraser occurred in France by the time Robinson and Watson were arrested in French territory. The Treaty is applicable.

2. Criminalization of Underlying Conduct.

Fraser was indicted by the French government for six alleged violations of the French Criminal Code: (1) aiding and abetting transport of narcotics; (2) aiding and abetting possession of narcotics; (3) aiding and abetting importation of narcotics; (4) aiding and abetting importation of goods dangerous to health, morals or public safety; (5) aiding and abetting possession of goods dangerous to health, morals or public safety without regular supporting documents; and (6) aiding and abetting transport of goods dangerous to health, morals or public safety without regular supporting documents. (Doc. 18-2, Ex. 2 at 24-25).

The Court concludes the underlying conduct in this case is criminalized in both France and the United States. Under federal law, cocaine is considered a "controlled substance" under 21 U.S.C. § 812(a)(4). Possession of cocaine for distribution is unlawful in the United States. 21 U.S.C. § 841(a)(1). Federal law prohibits the importation of controlled substances such as cocaine, see 21 U.S.C. § 952(a), andentering into a conspiracy to import controlled substances. 21 U.S.C. § 963. Aiding and abetting a felony is also prohibited under United States law. 18 U.S.C. § 2.

Each of these offenses is punishable by a sentence of greater than one year.⁶ 21 U.S.C. § 841(b)(1)(B)(ii)(II) (minimum sentence of five (5) years for possession of intent to distribute more than 500 grams of cocaine); 21 U.S.C. § 963 (penalty for conspiracy equivalent to penalty for the offense underlying object of the conspiracy); 21 U.S.C. § 960(b)(2)(B)(ii) (minimum sentence of five (5) years for importation of more than 500 grams of cocaine). The Court concludes that the offenses Fraser is accused of committing are criminalized under both United States and French law, and are punishable by greater than one year in prison in both the United States and France.

3. Substantially Analogous.

The Court concludes French law and United States law are "substantially analogous" in Fraser's case. To be "substantially analogous," statutes need only be "directed to the same basic evil." Knotek, 925 F.3d at 1132, quoting ...