In Re: Victor Manuel Crismatt, Jr. Matter of Extradition, a fugitive from Panama
Filing
42
ORDER granting 29 the Request for Extradition. Certification of Extraditability and Order of Commitment as to Victor Manuel Crismatt, Jr. will be issued by separate Order. Signed by Magistrate Judge Carol Mirando on 5/30/2017. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN THE MATTER OF
THE EXTRADITION OF
VICTOR MANUEL CRISMATT, JR.
______________________________
Case No: 2:16-mc-29-FtM-CM
ORDER
This matter comes before the Court upon review of a request for the extradition
of Victor Manuel Crismatt Jr. (“Crismatt” or “extraditee”) filed by the United States
on behalf of the Republic of Panama (“Panama”) pursuant to the Treaty between the
United States of America and Panama, Providing for the Extradition of Criminals,
signed on May 25, 1904, 34 Stat. 2851 (the “Treaty”).
Docs. 29, 33-1.
On October 10, 2016, pursuant to 18 U.S.C. § 3184 and Article IV of the Treaty,
the United States, acting for and on behalf of Panama, filed a Complaint for
Provisional Arrest with a View towards Extradition (the “Complaint”).
4.
Doc. 2 ¶¶ 1-
Crismatt is charged in the Province of Coclé, Panama with Aggravated Homicide
by killing and dismembering his father on or about August 4, 2016.
Id. ¶¶ 5-6. On
August 5, 2016, the Court of Guarantees for the Province of Coclé issued a warrant
for Crismatt’s arrest.
Id. ¶ 5. Crismatt is a United States citizen and currently is
located in Fort Myers, Florida.
Id. ¶¶ 10-11.
The United States on behalf of
Panama seeks to extradite Crismatt pursuant to the Treaty and 18 U.S.C. § 3184.
Docs. 2, 29.
Pursuant to 18 U.S.C. § 3184 and the Complaint, a warrant directing the arrest
of Crismatt was executed on October 11, 2016. Doc. 9.
After his arrest, Crismatt
appeared before United States Magistrate Judge Mac R. McCoy on October 12, 2016,
who advised Crismatt of the proceedings against him and appointed Assistant
Federal Defender Martin DerOvanesian to represent Crismatt.
Docs. 5, 8.
After
requesting a detention hearing, Crismatt waived the issue of detention and did not
seek release pending extradition, and Judge McCoy ordered that Crismatt be
detained without prejudice pending extradition proceedings and extradition.
Doc.
13 at 1.
The United States filed electronic copies of the documentary support for the
request for extradition in Spanish (Docs. 27, 39) and translations in English (Doc.
28).
The United States also filed a memorandum of law in support of extradition.
Doc. 30.
Crismatt submitted two responses in opposition.
Docs. 33, 37.
United States filed a reply brief in opposition to Crismatt’s first response.
The
Doc. 36.
On May 18, 2017, the undersigned held a hearing on the request for extradition.
Doc. 40.
Crismatt appeared with his counsel, and the United States, acting for and
on behalf of Panama, was represented by Assistant United States Attorney Jeffrey
Michelland.
Doc. 41. At the hearing, the United States presented the hard copy
originals of the documentary support for the request for extradition in Spanish and
translations in English, the Treaty, and a letter from the United States Department
of State confirming receipt of the formal extradition request from Panama dated
December 9, 2016. Government Exhibits 1-3, 4A-D, 5A-D. 1
The exhibits noted, hereinafter referred to as “Gov. Ex. ___,” were offered by counsel
for the United States and admitted during the extradition hearing. Doc. 41. Because the
original documents were not paginated, the United States cited to the English translation of
the electronic record (Doc. 28) in its briefs and during the hearing, and the Court will do the
1
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During the hearing, Crismatt’s counsel renewed his arguments made in his
two filed responses (Docs. 33, 37), specifically noting his position that the Treaty does
not apply to him, and represented that Crismatt’s position remains the same as
stated in his two responses.
In addition, Crismatt’s counsel informed the Court that
he wished to preserve and maintain the rule of specialty at Article VIII of the Treaty.2
See Doc. 33-1 at 5; Gov. Ex. 1.
I.
Evidence in Support of Extradition Request
Title 18, United States Code, Section 3190 governs the admissibility of
documents offered during an extradition hearing.
1159, 1164 (11th Cir. 2005).
Afanasjev v. Hurlburt, 418 F.3d
Section 3190 provides that:
Depositions, warrants, or other papers or copies thereof offered in
evidence upon the hearing of any extradition case shall be received and
admitted as evidence on such hearing for all the purposes of such
hearing if they shall be properly and legally authenticated so as to
entitle them to be received for similar purposes by the tribunals of the
foreign country from which the accused party shall have escaped, and
the certificate of the . . . consular officer of the United States resident in
such foreign country shall be proof that the same, so offered, are
authenticated in the manner required.
18 U.S.C. § 3190.
During the hearing, with no objection by Crismatt, the Court found that the
documents submitted by the United States on behalf of Panama are properly
authenticated in accordance with 18 U.S.C. § 3190.
In compliance with the statute,
the United States submitted the certificate of Alice F. Seddon (“Seddon”), Consul
same in this Order.
2
See discussion, infra, Section III.
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General of the United State Embassy in Panama City.
2; 28-2 at 1; 28-5 at 1; 28-7 at 1.
See generally Docs. 28-1 at
Seddon certified that the supporting documents
submitted by Panama are properly and legally authenticated so as to entitle them to
be received in evidence for similar purposes by the tribunals of Panama as required
by 18 U.S.C. § 3190.
Doc. 28-1 at 2.
documents into evidence during the hearing.
Accordingly, the Court admitted the
Docs. 27, 28, 40, 41; Gov. Ex. 1-3, 4A-
D, 5A-D.
II.
Extradition
The matter of international extradition of fugitives is governed by 18 U.S.C. §§
3184, et seq. when there is a treaty of extradition between the United States and any
foreign government. The statute provides in relevant part:
Whenever there is a treaty or convention for extradition between the
United States and any foreign government, . . . any magistrate judge
authorized so to do by a court of the United States, . . . may, upon
complaint made under oath, charging any person found within his
jurisdiction, with having committed within the jurisdiction of any such
foreign government any of the crimes provided for by such treaty or
convention, . . . issue his warrant for the apprehension of the person so
charged, that he may be brought before such . . . magistrate judge, to the
end that the evidence of criminality may be heard and considered. . . .
If, on such hearing, he deems the evidence sufficient to sustain the
charge under the provisions of the proper treaty or convention, or
under section 3181(b), he shall certify the same, together with a copy of
all the testimony taken before him, to the Secretary of State, that a
warrant may issue upon the requisition of the proper authorities of such
foreign government, for the surrender of such person, according to the
stipulations of the treaty or convention; and he shall issue his warrant
for the commitment of the person so charged to the proper jail, there to
remain until such surrender shall be made.
18 U.S.C. § 3184.
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The Eleventh Circuit has found that “extradition is a function of the
Executive,” allowing the courts to conduct only limited inquiry.
Kastnerova v.
United States, 365 F.3d 980, 984 n.5 (11th Cir. 2004) (citation omitted). A judge in
extradition proceedings “conducts a hearing simply to determine whether there is
evidence sufficient to sustain the charge against the defendant under the provisions
of the proper treaty or convention.”
marks omitted).
Id. at 984 n.5 (citation and internal quotation
If a judge determines that the evidence is sufficient, then the judge
“makes a finding of extraditability and certifies the case to the Secretary of State.”
Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993). Once the court
finds that the accused is extraditable, the Secretary of State makes the final decision
whether to surrender the accused.
18 U.S.C. § 3186; Martin, 993 F.2d at 829.
To make a finding of extraditability, courts generally consider four factors: (1)
whether the judicial officer has authority to conduct extradition proceedings and the
court has jurisdiction over the extraditee; (2) whether a valid extradition treaty
exists; (3) whether the crime with which the accused is charged is extraditable under
the extradition treaty; and (4) whether there is probable cause to believe that the
accused is guilty of the charge pending against him in the requesting state.
Martin,
993 F.2d at 828; United States v. Peterka, 307 F. Supp. 2d 1344, 1349 (M.D. Fla.
2003).
If the extradition treaty at issue requires the doctrine of dual criminality be
satisfied, that is, that the conduct charged is a crime under the law of the respective
states, courts also consider if this requirement is met.
Gallo-Chamorro v. United
States, 233 F.3d 1298, 1306 (11th Cir. 2000); Peterka, 307 F. Supp. 2d at 1349.
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a. Whether the Court has authority to conduct extradition proceedings
and jurisdiction over Crismatt
It is not disputed that the Court has jurisdiction over Crismatt and authority
to conduct his extradition proceedings.
Docs. 30 at 13-14; 33; 37.
Title 18, section
3184 authorizes any magistrate judge authorized by a court of the United States to
conduct extradition proceedings.
Id. Local Rule 6.01(c)(9) empowers United States
Magistrate Judges of this District to conduct extradition proceedings.
6.01(c)(9).
M.D. Fla. R.
Furthermore, Crismatt was found in Fort Myers, Florida, which confers
jurisdiction upon this Court.
Doc. 2 ¶ 11; see 18 U.S.C. § 3184.
Accordingly, the
Court finds that it has jurisdiction over Crismatt and authority to conduct his
extradition proceedings.
See 18 U.S.C. § 3184.
b. Whether a valid extradition treaty exists
The United States argues, and Crismatt does not dispute, that the Treaty is
valid.
Doc. 37 at 1. Tom Heinemann (“Heinemann”), an Assistant Legal Advisor
in the Office of the Legal Advisor for the Department of State, declared that the
Treaty is in full force and effect.
Doc. 28-1 at 3; Sumitomo Shoji Am., Inc. v.
Avagliano, 457 U.S. 176, 184-85 (1982) (“Although not conclusive, the meaning
attributed to treaty provisions by the Government agencies charged with their
negotiation and enforcement is entitled to great weight.”).
Crismatt, however, asserts that the Treaty does not apply here because it does
not permit the United States to extradite its own citizens, and he is a United States
citizen.
Doc. 33 at 2-5.
Crismatt points to Article V of the Treaty, which states,
“[n]either of the contracting parties shall be bound to deliver up its own citizens or
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subjects under the stipulations of this Treaty.”
Doc. 33-1 at 4. Crismatt argues
that the United States Supreme Court has held this particular language does not
confer discretionary power upon the executive branch to extradite United States
citizens.
Doc. 33 at 3 (citing Valentine v. United States ex rel. Neidecker, 299 U.S.
5, 18 (1936)).
The Court finds that Crismatt’s interpretation of Valentine already has been
addressed by Congress and rejected by other courts.
The Supreme Court in
Valentine held that the executive branch could not surrender United States citizens
to a foreign government because although the power to extradite United States
citizens may be given “by act of Congress or by the terms of a treaty,” neither a statute
nor the terms of the treaty conferred the power to do so.
18.
Valentine, 299 U.S. at 9,
The treaty at issue contained language similar to the one here, that “[n]either
of the contracting Parties shall be bound to deliver up its own citizens or subjects
under the stipulations of this convention.”
Id. at 6. The Supreme Court found that
the terms of the treaty did not permit the executive branch to surrender United States
citizens because the treaty “contain[ed] no express grant of the power.”
Id. at 11.
The Court held that “it is not enough that . . . treaty does not deny the power to
surrender [United States citizens],” but must confer expressly the power to do so.
at 9.
Id.
Because no statute granted an independent power to extradite United States
citizens, the Court concluded that the executive branch may not surrender United
States citizens to a foreign government.
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Id. at 18.
The Court noted that “the
remedy lies with the Congress,” as the legislature may confer a power upon the
executive branch to extradite United States citizens by enacting a statute.
Id.
After Valentine, in 1990, Congress passed 18 U.S.C. § 3196, which provides:
If the applicable treaty or convention does not obligate the United States
to extradite its citizens to a foreign country, the Secretary of State may,
nevertheless, order the surrender to that country of a United States
citizen whose extradition has been requested by that country if the other
requirements of that treaty or convention are met.
Id. Since that time, section 3196 has been part of the statutory scheme governing
extradition in the United States.
1300 (M.D. Fla. 2015).
In re Extradition of Ferriolo, 126 F. Supp. 3d 1297,
As a result, even when, as here, an extradition treaty does
not explicitly grant the power to extradite United States citizens, 18 U.S.C. § 3196
empowers the Secretary of State to do so, provided that the treaty’s other
requirements are met.
Basic v. Steck, 819 F.3d 897, 900 (6th Cir. 2016).
Crismatt further argues that 18 U.S.C. § 3196 is invalid because it is “an illegal
amendment to the original [T]reaty.” Doc. 33 at 5.
Although the Eleventh Circuit
has not addressed this issue, the Sixth Circuit Court of Appeals in Basic rejected a
substantially similar argument.
819 F.3d at 899. In Basic, the treaty at issue had
language nearly identical to one here, providing that “neither country shall be bound
to deliver up its own citizens.”
Id. (internal quotation marks and citation omitted);
see Doc. 33-1 at 4. The extraditee, also a United States citizen, contended that 18
U.S.C. § 3196 is unconstitutional because the statute attempts to circumvent the
treaty-making requirements of Article II of the United States Constitution.
819 F.3d at 899.
Basic,
The Sixth Circuit rejected this argument because the extradition
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treaty at issue did not forbid the United States from extraditing its own citizens.
Id.
More importantly, the court noted that Valentine allows Congress to remedy the
treaty’s lack of explicit language granting discretionary power to extradite United
States citizens by enacting a statute conferring an independent power allowing the
executive branch to do so.
Id. Hence, the Sixth Circuit concluded that 18 U.S.C. §
3196 empowers the Secretary of State to extradite United States citizens, given that
the treaty’s other requirements are satisfied.
Id. at 900. Similarly, here, the Court
finds that despite Article V of the Treaty, the United States may extradite Crismatt
pursuant to 18 U.S.C. § 3196.
c. Whether the crime with which Crismatt is charged is extraditable
under the Treaty and dual criminality is satisfied
Crismatt does not dispute that the offense with which he is charged is
extraditable under the Treaty.
Doc. 37 at 2.
Heinemann also declared that the
crime with which Crismatt is charged is covered under the Treaty.
Doc. 28-1 at 3.
The certificate of Seddon states that Crismatt is charged with the crime of intentional
homicide in Panama.
Doc. 27-2 at 1.
extraditable crimes include murder.
Article II of the Treaty provides that
Doc. 33-1 at 2.
Article II further states that
“[e]xtradition is also to take place for participation in any of the crimes and offenses
mentioned in this Treaty, provided such participation may be punished, in the United
States as a felony, and in the Republic of Panama by imprisonment at hard labor.”
Id. at 3. This requirement of dual criminality also has been met.
The United States provided in support a copy of the Criminal Code of Panama.
Doc. 28-2 at 16.
According to its criminal code, the crime of intentional homicide is
-9-
punishable by imprisonment of ten (10) to thirty (30) years in Panama.
19.
Doc. 28-2 at
The United States also asserted in the hearing that the crime of intentional
homicide is a felony crime in the United States and Florida.
Fla. Stat. §§ 782.04, 782.07.
18 U.S.C. §§ 1111-12;
Accordingly, the Court finds that the crime of
intentional homicide with which Crismatt is charged is extraditable under the
Treaty, and the dual criminality requirement has been satisfied.
d. Whether there is probable cause to believe that Crismatt is guilty of
the charge pending against him in Panama
The Eleventh Circuit has held that in extradition proceedings, the government
need not “show actual guilt, only probable cause that the fugitive is guilty.”
Kastnerova, 365 F.3d at 987. The courts do not examine whether the accused is
innocent or guilty, but inquire only whether “there is evidence sufficient to show
reasonable ground to believe the accused is guilty.”
Id. (citation omitted).
The
court’s role is limited to examining “whether there is any competent evidence tending
to show probable cause.”
Escobedo v. United States, 623 F.2d 1098, 1102 (5th Cir.
1980) (citations omitted). 3
Here, Crismatt’s counsel acknowledged during the hearing and in his brief that
the United States has established probable cause for purposes of the extradition
hearing, although he denied all of the allegations made against Crismatt and his
alleged participation in the charged offense.
Doc. 37 at 2.
To show probable cause,
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered
prior to October 1, 1981.
3
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the United States proffered various evidence, including statements of eyewitnesses,
autopsy results, expert opinions of the evidence seized on the crime scene, and
Crismatt’s flight to Florida.
Docs. 28-1, 28-2, 28-3, 28-4, 28-5, 28-6, 28-7, 28-8, 30 at
4-11.
For example, one witness, Alex Bolivar Hernandez, a security guard at the
apartment where Crismatt and the victim lived together, stated that the victim
owned a gray Toyota Rav4, and that he saw Crismatt taking the victim’s car on
August 4, 2016.
Docs. 28-1 at 12, 4 30 at 6-7.
Furthermore, when the police
searched Crismatt’s apartment, they found a large ax or hatchet with a wooden
handle.
Docs. 28-1 at 12, 30 at 8.
Crismatt purchased the ax at the local
supermarket where his purchase was recorded by the store’s security camera.
28-1 at 12, 30 at 8.
Docs.
The DNA analysis shows that the blood samples from Crismatt’s
apartment, the back of the gray Toyota Rav4, and the ax matched the genetic profile
from the victim’s remains.
Docs. 28-1 at 12; 28-8 at 7, 17; 30 at 8-9.
The
undersigned has reviewed all of the proffered evidence and finds that there is
evidence sufficient to show “reasonable ground to believe” Crismatt is guilty.
Doc.
30 at 16-17; see Kastnerova, 365 F.3d at 987. 5
Ilsis M. Samaniego R., Guarantee Judge in the Province of Cocle, of the Criminal
Justice System at the Second Judicial District, Supreme Court of Justice, in Panama,
provided a sworn affidavit that contains a summary of evidence gathered during a criminal
investigation of Crismatt’s charged offense. Doc. 28-1 at 10-15.
4
During the extradition hearing, Crismatt raised an objection to his statements made
during an interview with Detective Smith of the county sheriff’s office. During the
interview, Crismatt described to the detective how he killed the victim and left Panama.
Doc. 28-8 at 48-64. Crismatt does not dispute, however, that he is the named person in the
extradition documents, and, as noted, acknowledged probable cause has been established.
5
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III.
Rule of Specialty
During the hearing, Crismatt stated that he seeks to preserve and maintain
the rule of specialty. According to the rule of specialty, “the requesting state, which
secures the surrender of a person, can prosecute that person only for the offense for
which he or she was surrendered by the requested state or else must allow that person
an opportunity to leave the prosecuting state to which he or she had been
surrendered.”
Gallo-Chamorro, 233 F.3d at 1305.
Here, the Treaty contains language to that effect.
Doc. 33-1 at 5.
Article
VIII of the Treaty provides:
No person surrendered by either of the high contracting parties to the
other shall, without his consent, freely granted and publicly declared by
him, be triable or tried or be punished for any crime or offense
committed prior to his extradition, other than that for which he was
delivered up, until he shall have had an opportunity of returning to the
country from which he was surrendered.
Id. Nonetheless, Crismatt seeks to preserve and maintain the rule of specialty in
addition to this Treaty provision.
As a result, the Court will preserve the rule of
specialty and provide the relevant language in the certification of extraditability.
Based upon the above findings, the Court finds that the Republic of Panama
has satisfied its burden to extradite Crismatt, and the Court will grant the Request
for Extradition (Doc. 29) and issue a Certification of Extraditability and Order of
Commitment as to Crismatt.
Doc. 37 at 2.
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ACCORDINGLY, it is hereby
ORDERED:
1.
The Request for Extradition (Doc. 29) is GRANTED.
2.
Certification of Extraditability and Order of Commitment as to Victor
Manuel Crismatt, Jr. will be issued by separate Order.
DONE and ORDERED in Fort Myers, Florida on this 30th day of May, 2017.
Copies:
Counsel of record
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