United States of America

Filing 70

ORDER granting 46 the Government's Motion for a Certificate to Extradite to Panama. Signed by Magistrate Judge Edwin G. Torres on 8/31/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-22197-Civ-TORRES
IN THE MATTER OF THE
EXTRADITION OF RICARDO
ALBERTO MARTINELLI BERROCAL
______________________________________/

FINAL ORDER ON THE GOVERNMENT’S MOTION
FOR A CERTIFICATE TO EXTRADITE TO PANAMA

One of our nation’s greatest Justices, Oliver Wendell Holmes, disfavored
lengthy opinions. He preferred a “short little opinion” over a lengthy one “padded”
with unnecessary discourse.1 The following lengthy analysis of the relevant facts
and governing law would not be warmly greeted in his Chambers. But given the
importance of the outcome to all interested parties, and this Court’s obligation to
satisfy the requirements of 18 U.S.C. § 3184, we offer a detailed recitation of all the
issues raised by the parties and the Court’s reasoning.
Because Justice Holmes has penned or participated in many important
decisions that, to this day, define the essential nature of the extradition process, our
decision can be distilled to a few paragraphs quoting and paraphrasing those
opinions.
To begin,
It is common in extradition cases to attempt to bring to bear all
the factitious niceties of a criminal trial at common law. But it
is a waste of time. For while, of course, a man is not to be sent
from the country merely upon demand or surmise, yet if there
is presented, even in somewhat untechnical form according to
our ideas, such reasonable ground to suppose him guilty as to
make it proper that he should be tried, good faith to the
demanding government requires his surrender.2
In our case,
[O]ut of a natural anxiety to save [Pres. Martinelli] if possible
from being sent from [Florida] to [Panama] for trial, it has been
presented as if this were the final stage and every technical
detail were to be proved beyond a reasonable doubt. This is not
G. Edward White, Justice Oliver Wendell Holmes: Law and The Inner
Self, 310 (1993).
1

Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (affirming extradition
to Russia on fraud charges).
2

2

the law.
Form is not to be insisted upon beyond the
requirements of safety and justice. Competent evidence to
establish reasonable grounds is not necessarily evidence
competent to convict.3
And notwithstanding Pres. Martinelli’s technical but meritless objections to
the process that led to this extradition request,
[His main] objection is that there is no evidence that the
defendant is guilty of the crime charged. This is rather a bold
contention seeing that [he was President and Head of the
National Security Council at a time that the Council was
allegedly and unlawfully surveilling the President’s political
opponents, and using public funds in the process for purely
personal gain.] It is unnecessary to go into greater detail. We
are of the opinion that probable cause to believe [Pres.
Martinelli] guilty was shown by competent evidence. . . . 4
As “[w]e are bound by the existence of an extradition treaty to assume that
the trial will be fair,” that is the end of our inquiry. Or as Justice Holmes succinctly
declared, “that is enough.”5

***

Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (affirming extradition
of Mexican public official to Mexico on embezzlement charges) (citations omitted).
3

4

Id. at 314.

5

Glucksman, 221 U.S. at 512, 514.
3

TABLE OF CONTENTS
I.

BACKGROUND ...................................................................................................... 5
A.

Panama’s Request for Extradition ................................................................... 5

B.

The Charges Against Pres. Martinelli ............................................................. 7

C.

The Relevant Treaties ...................................................................................... 9

D.

Disputes Regarding Allegations and Underlying Law ................................. 12

II. ANALYSIS ............................................................................................................ 16
A.

General Principles of Extradition .................................................................. 18

B.

The Authority to Conduct Extradition Proceedings ...................................... 23

C.

Valid Extradition Treaties Exist .................................................................... 24

D.

The Alleged Crimes Are Extraditable Under the Treaties ........................... 25

1.

The Embezzlement Charges ....................................................................... 27

2.

The Surveillance Charges ........................................................................... 31

E.

Probable Cause Exists for Each Extraditable Charge .................................. 48

1.

The Arrest Warrant and Panamanian Procedures .................................... 52

2.

Immunity Defenses ..................................................................................... 64

3.

Due Process.................................................................................................. 65

4.

The Embezzlement Charges ....................................................................... 73

5.

The Surveillance Charges ........................................................................... 82

III. CONCLUSION ..................................................................................................... 92

4

I.

BACKGROUND

This matter is before the Court on the United States of America’s (the
“Government”) motion [D.E. 46] for an order certifying the extradition of Ricardo
Alberto Martinelli Berrocal (“Pres. Martinelli”) on behalf of the Republic of Panama
(“Panama”).

Pres. Martinelli timely responded to the Government’s motion on

August 11, 2017 [D.E. 58] to which the Government replied on August 18, 2017.
[D.E. 62]. Therefore, the Government’s motion is now ripe for disposition. After
careful consideration of the entire record, the evidence presented at the extradition
hearings, along with the benefit of oral argument, and the papers applicable
thereto, the Government’s motion is GRANTED and the Court finds that Pres.
Martinelli is extraditable for all four alleged offenses pursuant to the Treaty
Between the United States of America and Panama Providing for the Extradition of
Criminals, U.S.-Pan., May 25, 1904, 34 Stat. 2851 (the “Treaty”); the U.N.
Convention Against Corruption, Dec. 9, 2003, S. Treaty Doc. No. 109-6, 2349
U.N.T.S. 41 (the “UNCAC”); and the Convention on Cybercrime, Jan. 7, 2004,
Council of Eur., T.I.A.S. No. 13174, C.E.T.S. No. 185 (the “Budapest Convention”).
A.

Panama’s Request for Extradition

This case involves an extradition request by Panama, approved by the United
States Department of State, for the arrest and extradition of Pres. Martinelli – the
former President of Panama.

The Supreme Court of Panama has requested

extradition on the grounds of alleged violations of Panamanian law that occurred
while Pres. Martinelli was in office. Pres. Martinelli left Panama and traveled to
the United States where he filed an application for asylum in 2015. While that
5

application remains pending, the Department of State and the United States
Attorneys’ Office here in Miami have now filed this action to authorize his
extradition to Panama pursuant to multiple treaties between the United States and
Panama.
Specifically, Pres. Martinelli’s extradition is sought by Panama for trial on
four charges: (1) interception of telecommunications without judicial authorization,
in violation of Article 167 of the Criminal Code of Panama; (2) tracking, persecution,
surveillance without judicial authorization, in violation of Article 168 of the same
code; (3) embezzlement by theft and misappropriation, in violation of Article 338 of
the same code; and (4) embezzlement of use, in violation of Article 341 of the same
code. Harry Díaz (“Díaz”), a Justice of the Criminal Chamber of the Supreme Court
of Justice of the Republic of Panama, issued an indictment against Pres. Martinelli
for these offenses on October 9, 2015. After Pres. Martinelli failed to appear in court
when summoned for a hearing on the charges, on December 21, 2015, the Supreme
Court issued an order for Pres. Martinelli’s arrest.

Panama subsequently

submitted a request to the United States for Pres. Martinelli’s extradition.
Pursuant to Panama’s extradition request, Pres. Martinelli was arrested in
on June 12, 2017, in Coral Gables, Florida. He then filed an emergency motion to
dismiss [D.E. 12], alleging that Panama had failed to comply with the
requirement in the Treaty that it provide a warrant in support of its extradition
request; he also filed multiple motions for release on bond. [D.E. 18, 24, 26, 34,
36].

The Government responded to these motions and filed a separate motion

6

seeking Pres. Martinelli’s detention. [DE 13, 15, 22, 32]. After holding a hearing
on June 20, 2017, we denied Pres. Martinelli’s motions and granted the
Government’s request for detention in an opinion issued on July 7, 2017. [D.E.
38].

The immediate motion pending before the Court arises from the

Government’s motion for extradition. [D.E. 46].
B.

The Charges Against Pres. Martinelli

Justice Mejía Edward listed the charges that El Magistrado Fiscal intends to
prove against Pres. Martinelli. [D.E. 13-1 at 15-25, ¶27]. According to the charges,
Pres. Martinelli:
established an organized apparatus of power acting beyond the Social
and Democratic State of Law, and through this apparatus of power
instructions were given to officers of The National Security Council,
who were fully aware of the illegality of these activities and without a
judicial authorization undertook interceptions of electronic
communications in various forms, surveillance and tracking of people,
which they called targets, who belong to difference political, economic,
civic groups and unions of the country, extending this systematic
violation of human rights, in some cases, to family and friends of
individuals subject to interceptions, surveillance and tracking; and
that in order to achieve these activities outside the Constitution and
the Law, the organization of State power led by Ricardo Alberto
Martinelli Berrocal supplied the equipment, resources, and personnel
necessary to achieve the aforesaid illicit activities, using State funds.
Id. at 15-16, ¶27(b). These alleged crimes occurred between 2012 and mid-May
2014, during the time that Pres. Martinelli was in office. Id. at 16, ¶27(c).
According to the Government, “[a]n audit conducted by the Comptroller General
concluded that the loss to the state sustained as a result of the purchase and
disappearance of the surveillance equipment amounted to US $ 10,861,857.48.”
[D.E. 15 at 6].

7

The first alleged crime for which Panama requests Pres. Martinelli’s
extradition is the:
Crime against the inviolability of secret and the right to privacy
(Interception of private telecommunications without judicial
authority), provided under Article 167, Title II, Chapter II of the
Second Book of The Panamanian Criminal Code, reading as follows:
Article 167. Whoever, without the authorization of the judicial
authority, intercepts telecommunications or uses technical devices for
listening, transmission, recording, or reproducing conversations that
are not for the public shall be punished from two to four years in
prison.
[D.E. 13-1 at 26-27, ¶31(a)] (internal quotation marks omitted).
The second alleged crime for which Panama requests Pres. Martinelli’s
extradition is the:
Crime against the inviolability of secret and the right to privacy
(Tracking, Persecution and Surveillance without judicial authority),
provided under Article 168, Title II, Chapter III of the Second Book of
The Panamanian Criminal Code, reading as follows:
Article 168. Whoever, without proper authorization, practices tracking,
persecution, or surveillance against a person, for illicit purposes, shall
be punished from two to four years in prison. The same punishment is
imposed on anyone who sponsors or promotes these facts.
Id. at 27, ¶31(b) (internal quotation marks omitted).
The third alleged crime for which Panama requests Pres. Martinelli’s
extradition is the:
Crime against the public administration, Different Kinds of
Embezzlement (embezzlement by theft or misappropriation), provided
under Article 338, Title X, Chapter I of the Second Book of The
Panamanian Criminal Code, reading as follows:
Article 338. A public officer who takes or embezzles in any way, or
consents that somebody else appropriates, takes or embezzles any

8

form of money, securities or property which administration, collection
or custody have been entrusted by virtue of his position, shall be
punished from four to ten years in prison.
If the amount of the appropriated exceeds the sum of one hundred
thousand dollars (US$100,000.00) or the money, securities or
appropriate goods were intended for welfare purposes or for
development programs or social support, the punishment shall be from
eight to fifteen years in prison.
Id. at 27, ¶ 31(c) (internal quotation marks omitted).
The fourth and final alleged crime for which Panama requests Pres. Pres.
Martinelli’s extradition is the:
Crime against the public administration, different kinds of
embezzlement (embezzlement of use), provided under Article 341, Title
X, Chapter I of the Second Book of the Panamanian Criminal Code,
reading as follows:
Article 341. A public officer who, for purposes other than service, uses
in his own or another’s benefit, or allows somebody else to use money,
securities or property under his charge by reasons of his duties or
which are in his custody, shall be punished from one to three years in
prison, or its equivalent in daily fines or weekend arrest.
The same punishment shall be applied to the public officer that uses
official works or services for his benefit or allows someone else to do it.
Id. at 27-28, ¶ 31(d) (internal quotation marks omitted).
C.

The Relevant Treaties

Panama formalized its extradition request “pursuant to the Extradition
Treaty between the United States of America and the Republic of Panama, signed
on May 25, 1904, which entered into force for the United States of America on May
8, 1905, and for the Republic of Panama on April 8, 1905 . . . .” Id. at 3, ¶ 1. The
Treaty provides:

9

The Government of the United States and the Government of the
Republic of Panamá mutually agree to deliver up persons who, having
been charged with or convicted of any of the crimes and offenses
specified in the following article, committed within the jurisdiction of
one of the contracting parties, shall seek an asylum or be found within
the territories of the other: Provided, that this shall only be done upon
such evidence of Criminality as, according to the laws of the place
where the fugitive or person so charged shall be found, would justify
his or her apprehension and commitment for trial if the crime or
offense had been there committed.
[D.E. 12-1 at 3].
Relevant to this case, the Treaty also provides that the signatories shall
grant extradition for “[e]mbezzlement by public officers; embezzlement by persons
hired or salaried, to the detriment of their employers; where in either class of cases
the embezzlement exceeds the sum of two hundred dollars; larceny.” Treaty at Art.
II; [D.E. 12-1 at 4]. Further, the Treaty states that “if the fugitive is merely charged
with a crime, a duly authenticated copy of the warrant of arrest in the country
where the crime has been committed, and of the depositions or other evidence upon
which such warrant was issued, shall be produced.” Treaty at Art. III; [D.E. 12-1 at
5].
The final relevant article from this Treaty states:
A fugitive criminal shall not be surrendered if the offense in respect of
which his surrender is demanded be of a political character, or if he
proves that the requisition for his surrender has, in fact, been made
with a view to try or punish him for an offense of a political character.
No person surrendered by either of the high contracting parties to the
other shall be triable or tried, or be punished, for any political crime or
offense, or for any act connected therewith, committed previously to his
extradition. If any question shall arise as to whether a case comes
within the provisions of this article, the decision of the authorities of
the government on which the demand for surrender is made, or which
may have granted the extradition, shall be final.

10

Treaty at Art. VI; [D.E. 12-1 at 5].
In addition to the 1904 Treaty, the Government relies on two more recent
treaties in its Complaint: the Budapest Convention and the UNCAC. [D.E. 1 at 1].
According to the Budapest Convention, a multilateral treaty to which the United
States and Panama are both parties:
Each Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences under its domestic law,
when committed intentionally, the interception without right, made by
technical means, of non-public transmissions of computer data to, from
or within a computer system, including electromagnetic emissions from
a computer system carrying such computer data. A Party may require
that the offence be committed with dishonest intent, or in relation to a
computer system that is connected to another computer system.
Convention on Cybercrime Art. 3, Nov. 23, 2001, T.I.A.S. No. 13174. The treaty
expressly includes an article on extradition, quite relevant here, which provides:
This article applies to extradition between Parties for the criminal
offences established in accordance with Articles 2 through 11 of this
Convention, provided that they are punishable under the laws of both
Parties concerned by deprivation of liberty for a maximum period of at
least one year, or by a more severe penalty. [24(1)(a)]
The criminal offences described in paragraph 1 of this article shall be
deemed to be included as extraditable offences in any extradition
treaty existing between or among the Parties. The Parties undertake
to include such offences as extraditable offences in any extradition
treaty to be concluded between or among them. [24(2)]
Id. at Art. 24(1)(a), 24(2).
The third and final treaty relied upon by the government is the UNCAC,
another multilateral treaty to which the United States and Panama are both
parties, that provides:

11

Embezzlement, misappropriation or other diversion of property by a
public official
Each State Party shall adopt such legislative and other measures as
may be necessary to establish as criminal offences, when committed
intentionally, the embezzlement, misappropriation or other diversion
by a public official for his or her benefit or for the benefit of another
person or entity, of any property, public or private funds or securities
or any other thing of value entrusted to the public official by virtue of
his or her position.
UNCAC Art. 17, Oct. 23, 2003, S. Treaty Doc. No. 109-6. The treaty also includes
an express provision relating to extradition, which provides:
This article shall apply to the offences established in accordance with
this Convention where the person who is the subject of the request for
extradition is present in the territory of the requested State Party,
provided that the offence for which extradition is sought is punishable
under the domestic law of both the requesting State Party and the
requested State Party. [1]
Notwithstanding the provisions of paragraph 1 of this article, a State
Party whose law so permits may grant the extradition of a person for
any of the offences covered by this Convention that are not punishable
under its own domestic law. [2]
Each of the offences to which this article applies shall be deemed to be
included as an extraditable offence in any extradition treaty existing
between States Parties. States Parties undertake to include such
offences as extraditable offences in every extradition treaty to be
concluded between them. A State Party whose law so permits, in case
it uses this Convention as the basis for extradition, shall not consider
any of the offences established in accordance with this Convention to
be a political offence. [4]
Id. at Art. 44(1), 44(2), 44(4), Oct. 23, 2003, S. Treaty Doc. No. 109-6.
D.

Disputes Regarding Allegations and Underlying Law

Pres. Martinelli has disputed both the allegations surrounding his potential
extradition as well as the law on which the extradition is based. [D.E. 18-2 at 13,

12

120-23; D.E. 12 at 1-3; D.E. 18 at 1-2, 7-21]. Regarding Pres. Martinelli’s potential
immunity for the alleged crimes, he relies on the Panamanian Constitution:
Article 191. The President and the Vice-President of the Republic are
responsible only in the following cases:
1. For exceeding their constitutional powers;
2. For acts of violence or coercion during the electoral process; for
impeding the meeting of the National Assembly, for blocking the
exercise of its functions or of the functions of the other public
organizations or authorities that are established by this Constitution;
3. For offenses against the international personality of the State or
against the public administration.
In the first and second case, the penalty shall be removal from office,
and disqualification to hold public office for a period fixed by law. In
the third case ordinary law shall apply.
[D.E. 18-2 at 13]. Based on this article, Pres. Martinelli argues that he “generally
has immunity for crimes committed during his presidency.” [D.E. 18 at 9]. He also
claims that this article “clearly applies to the ‘wiretapping’ crimes charged here (i.e.,
interception of telecommunications/surveillance without authorization).” Id. He
states that “as a member of the Central American Parliament, [he] has ‘Parlecen’
immunity that precludes him from being charged for any crime.” Id.
As for the allegations themselves, Pres. Martinelli has denied them in their
entirety. [D.E. 18 at 6]. According to Pres. Martinelli, the affidavit executed by a
former official with the Panamanian National Security Council during Pres.
Martinelli’s tenure, Ismael Pitti (“Pitti”) (which constitutes the primary sworn
testimony relied upon by the Government) is a sham:
[It] was executed on the basis of “information and belief” and reeks of
rank hearsay, as Pitti does not identify a single personal interaction
with [Mr.] Martinelli [Berrocal]. The Panamanian government has

13

bought and paid [Mr. Pitti] as a witness, providing him with a wellpaid job in Washington, D.C., despite his alleged participation in the
alleged offenses.
Id.
Pres. Martinelli points instead to a competing affidavit executed by Ronny
Rodriguez Mendoza, a former aide to Pres. Martinelli.

See id. at 6, 9.

Mr.

Rodriguez Mendoza’s affidavit avers that National Police Directorate Commissioner
Rolando Lopez:
[O]ffered to take [him] directly to the Office of the President of the
Republic, to Mr. JUAN CARLOS VARELA, who was willing to offer
[him] ‘WHATEVER [HE] WANTED’ if [he] would incriminate former
President RICARDO MARTINELLI, and that [the National Police
Directorate], in January 2015, had seized the Office of the Procurator
General of the Nation, and that [he] could testify as a ‘protected
witness’. [He] maintained that [he] would no [sic] do so. A few days
later, ROLANDO LOPEZ PEREZ called [him] again, but this time in
order to threaten and intimidate [him]. The conversation ended with
these words: ‘we’re going to cancel your retirement, we’re going to open
3 criminal dockets against you, we’re going to remove you from the
National Police, we’re going to throw you in jail, and you won’t last a
week at La Joya’.
[D.E. 18-2 at 121].
Pres. Martinelli also addressed the enforceability of the arrest warrant issued
against him. [D.E. 28 at 1]. “[T]he arrest warrant issued for President Martinelli is
unprecedented in Panama and null and void because the issuing court lacked
jurisdiction over him.” Id. To support this statement, Pres. Martinelli provides an
affidavit from his expert, Roberto J. Moreno.

[D.E. 28-2].

Mr. Moreno is a

Panamanian lawyer and in 2009 he “obtained a Masters in Law (LL.M.) with a
specialization in International Human Rights, in the United States of America in

14

the prestigious American University Washington College of Law, Washington D.C.,
thanks to a Fulbright Scholarship from the State Departament [sic] of the United
States of America . . . .” [D.E. 24-2 at 1]. Mr. Moreno concluded:
[T]hat based on the norms and the precedents that: (1) Due the
absence of indictment of [Mr.] Martinelli Berrocal, the Order of
Detention against him is nullified; (2) That in order to acquire
jurisdiction and the power to apply personal precautionary measures
against [Mr.] Martinelli [Berrocal], his previous personal indictment is
indispensable; (3) That in order to be able to order a detention due to
contempt, a previous indictment hearing is required, which has not
occurred in the case of [Mr.] Martinelli Berrocal, violating due process
and the fundamental guarantees of Mr. Martinelli [Berrocal].
[D.E. 28-2].
Pres. Martinelli has also tackled the specific charges to undermine the
strength of the case against him.

He argues that the weak and impeachable

evidence presented bars his extradition. For instance, Pres. Martinelli has
highlighted numerous contradictions or inconsistencies between Díaz’s extradition
affidavit and the supporting documentation that Díaz relied upon. It turns out that
the surveillance system that his affidavit cited as evidence of Pres. Martinelli’s
embezzlement of Panamanian funds was not the surveillance system that Pitti
described in his affidavit. [D.E. 36 at 11-12].

As such, Pres. Martinelli concludes

that there is a material disconnect between the charge of embezzlement of funds
and the sworn evidence provided to sustain that charge.

And that disconnect

purportedly undermines the case for extradition under all of the applicable treaties.

15

To determine whether the Government has complied with all of the statutory
requirements of 18 U.S.C. § 3184 to justify a certificate of extradition to the
Secretary of State, we turn our attention to the arguments presented.
II.

ANALYSIS

Pres. Martinelli raises four primary arguments in opposition to the
Government’s motion for extradition. First, when requesting extradition on the
surveillance offenses, Pres. Martinelli contends that Panama has ignored the plain
language of the Treaty’s non-retroactivity provision. Pres. Martinelli suggests that
the Government lacks any authority for the position that the Treaty operates
retroactively with respect to the crimes charged and, on this basis, the surveillance
crimes should be outright dismissed as a violation of the Treaty’s plain language.
Second, Pres. Martinelli argues that the Government has not produced a
valid arrest warrant as required under the Treaty for two reasons: (1) the court
that issued the arrest warrant lacked jurisdiction because it flouted a mandatory
phase called imputación, and (2) the arrest warrant fails to refer to at least one
extraditable offense. While Díaz declares that imputación was unnecessary in this
case and that the arrest warrant is valid, Pres. Martinelli maintains (citing his
expert’s affidavits) that Panamanian law conclusively provides otherwise and that
these procedural failures are fatal to the Government’s attempt to extradite him.
Third, Pres. Martinelli suggests that Panama and the Department of Justice
(the “DOJ”) have violated his due process rights, on several occasions, by presenting
material lies by Díaz under oath to this Court. Díaz allegedly continues to swear, in

16

the face of insurmountable evidence to the contrary, that the publicly purchased
MLM equipment was both capable of and used for infiltrating and extracting
content from cellular phones. Pres. Martinelli believes that Díaz ’s repeated lies are
not harmless embellishments, as they are purportedly critical to Panama
establishing probable cause on the embezzlement crimes, and constitute brazen
misconduct that prohibits extradition.
Fourth, Pres. Martinelli argues that the Government has failed to establish
probable cause for both the surveillance and embezzlement offenses.

On the

surveillance charges, Pres. Martinelli suggests that the Government’s case rises and
falls on the affidavit of Pitti – an affidavit that Martinelli suggests is inherently
unreliable and therefore must be discredited. On the embezzlement charges, Pres.
Martinelli believes that the Government cannot establish probable cause that he
embezzled either the MLM equipment or the Pegasus equipment.

The MLM

equipment – last seen in 2011 – is purportedly irrelevant to this case because there
is zero evidence of its use in connection with the alleged surveillance at issue in his
case. And, at least, there is supposedly no evidence that it has been used during the
relevant time period of 2012 and 2014.
As for the Pegasus equipment, Pres. Martinelli argues that the Government
cannot establish probable cause because there is no evidence that the Pegasus
equipment was in his custody as required under Panamanian law, nor is there
evidence that it was acquired with public funds contrary to Díaz’s defective
indictment and false affidavits. Pres. Martinelli concludes, instead, that the alleged

17

crimes against him are politically driven and that there are a plethora of reasons as
to why a certification for his extradition should not be issued to the Secretary of
State.
A.

General Principles of Extradition

“An extradition treaty creates in a foreign government the right to demand
and obtain extradition of an accused criminal . . . [a]bsent a treaty, the federal
government lacks the authority to turn the accused over to the foreign government.”
United States v. Fernandez–Morris, 99 F. Supp. 2d 1358, 1360 (S.D. Fla. 1999)
(citation omitted). When there is a treaty of extradition between the United States
and any foreign government, international extradition requests are governed by 18
U.S.C. §§ 3184, et seq. 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.

18

The extradition process “is a function of the Executive,” allowing the courts to
conduct only limited inquiry.6 Kastnerova v. United States, 365 F.3d 980, 984 n.5
(11th Cir. 2004) (citation omitted). And although our inquiry is a limited one, it is
critical to the extradition process because “[t]he executive may not foreclose the
courts from exercising their responsibility to protect the integrity of the judicial
process.” Ahmad v. Wigen, 726 F. Supp. 389, 412 (E.D.N.Y. 1989) (“A court must
ensure that it is not used for purposes which do not comport with our Constitution
or principles of fundamental fairness.”), aff’d, 910 F.2d 1063 (2d Cir. 1990). In
fulfilling this obligation, the court “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.” Kastnerova, 365 F.3d at 984 n.5
(citation and internal quotation marks omitted). In other words, “[a]n extradition
hearing is not a trial on the merits and does not require proof sufficient to satisfy
the factfinder in a criminal trial.” Cheng Na–Yuet v. Hueston, 734 F. Supp. 988, 995
(S.D. Fla. 1990).
An extradition hearing is therefore akin to a preliminary hearing, where the
primary purpose is to decide if there is sufficient evidence of the charge under the
applicable treaty – not guilt or innocence. See Neely v. Henkel, 180 U.S. 109, 123

Neither the Federal Rules of Criminal Procedure, nor the Federal
Rules of Evidence, apply to international extradition proceedings. See FED. R. CRIM.
P. 1(a)(5)(A); FED. R. EVID. 1101(d)(3); Afanesjev v. Hurlburt, 418 F.3d 1159, 1164–
65 (11th Cir. 2005); Bovio v. United States, 989 F.2d 255, 259 n.3 (7th Cir. 1993);
Melia v. United States, 667 F.2d 300, 302 (2d Cir. 1981). Thus, for instance,
hearsay and excludable evidence is admissible. See United States v. Peterka, 307 F.
Supp. 2d 1344, 1349 (M.D. Fla. 2003).
6

19

(1901); see, e.g., Afanasjev, 418 F.3d at 1164 (finding that courts do “not inquire into
the guilt or innocence of the accused.”) (quoting Kastnerova, 365 F.3d at 987); In re
Extradition of Mohammad Safdar Gohir, 2014 WL 2123402, at *6 (D. Nev. 2014)
(“Foreign extraditions are sui generis in nature, neither civil nor criminal in nature
and set forth their own law.”).

And in determining whether there is sufficient

evidence to sustain the charge, section 3184 requires only a finding of probable
cause.

See Hoxha v. Levi, 465 F.3d 554, 560 (3d Cir. 2006) (interpreting the

“sufficient” evidence standard set forth in section 3184 as requiring probable cause);
Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969) (during a section 3184
extradition hearing the magistrate judge determines the sufficiency of evidence
establishing reasonable ground for the accused’s guilt).
A certification of extradition is generally based entirely on the authenticated
documentary evidence provided by the requesting government. See, e.g., Castro
Bobadilla v. Reno, 826 F. Supp. 1428, 1433–1434 (S.D. Fla. 1993) (documents and
statements sufficient for extradition to Honduras), aff’d, 28 F.3d 116 (11th Cir.
1994). In fact, “[i]t is exceedingly rare for the Government to submit anything other
than documents in support of an extradition request.” In re Extradition of Nunez–
Garrido, 829 F. Supp. 2d 1277, 1287 (S.D. Fla. 2011). As such, “one of the principal
objectives of the extradition statute is ‘to obviate the necessity of confronting the
accused with the witnesses against him’ by enabling the requesting country to meet
its burden of proof through documents subject only to requirements necessary to

20

guarantee their authenticity.” Id. (quoting Bingham v. Bradley, 241 U.S. 511, 517
(1916)).
While an extraditee is allowed to present evidence to clarify or explain the
explanatory evidence, contradictory evidence against the requesting country’s case
is inadmissible.

See Cheng Na–Yuet, 734 F. Supp. at 995.

“Because of the

circumscribed nature of an extradition proceeding, the importance of international
obligations and the inherent practical difficulties in international proceedings, a
defendant’s right to challenge evidence against him at an extradition hearing is
limited.” In re Extradition of Nunez-Garrido, 829 F. Supp. 2d at 1281. “Generally,
evidence that explains away or completely obliterates probable cause is the only
evidence admissible at an extradition hearing, whereas evidence that merely
controverts the existence of probable cause, or raises a defense, is not admissible.”
Barapind v. Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) (quoting with emphasis
added Mainero v. Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999)); see also Ordinola
v. Hackman, 478 F.3d 588, 608–09 (4th Cir. 2007); Hoxha v. Levi, 465 F.3d 554, 561
(3d Cir. 2006).
In other words, “[t]estimony that merely gives the opposite version of the
facts does not destroy the probably of guilt” and is therefore inadmissible. See
Fernandez–Morris, 99 F. Supp. 2d at 1360 (citation omitted). As such, affirmative
defenses to the merits of the charges are not to be considered at extradition
hearings. See Charlton v. Kelly, 229 U.S. 447, 462 (1913); Collins v. Loisel, 259 U.S.
309, 316–17 (1922); Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978); DeSilva v.

21

DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997). And an extraditee is also not
permitted to introduce evidence that seeks to impeach the credibility of the
demanding country’s witnesses. See Bovio v. United States, 989 F.2d 255, 259 (7th
Cir. 1993).
Once the evidence is determined to be sufficient, a court “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). Thereafter, the Secretary of State
makes the final decision to determine whether to surrender the accused. See 18
U.S.C. § 3186; Martin, 993 F.2d at 829 (“The Secretary exercises broad discretion
and may properly consider myriad factors affecting both the individual defendant as
well as foreign relations which an extradition magistrate may not. The Secretary of
State’s decision is not generally reviewable by the courts.”) (citation omitted). As
explained by the Eleventh Circuit:
Extradition ultimately remains an Executive function. After the courts
have completed their limited inquiry, the Secretary of State conducts
an independent review of the case to determine whether to issue a
warrant of surrender. The Secretary exercises broad discretion and
may properly consider myriad factors affecting both the individual
defendant as well as foreign relations which an extradition magistrate
may not.
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

22

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. See
Martin, 993 F.2d at 828; United States v. Peterka, 307 F. Supp. 2d 1344, 1349 (M.D.
Fla. 2003). In making this determination, courts do not weigh conflicting evidence,
“but rather, determine[] only whether there is competent evidence to support the
belief that the accused has committed the charged offense.” Quinn v. Robinson, 783
F.2d 776, 787 (9th Cir. 1986).
If an extradition treaty requires that the doctrine of dual criminality be
satisfied – meaning that the conduct charged is a crime under the law of the
respective states (i.e. Panama and the United States in this case) – courts must also
consider if this requirement is met. See Gallo–Chamorro v. United States, 233 F.3d
1298, 1306 (11th Cir. 2000); see also United States v. Cardoso, 2005 WL 1228826, at
*3 (M.D. Fla. May 10, 2005) (“Acts are considered criminal in the United States if
they would be unlawful under federal statutes, the law of the state where the
accused is found, or by a preponderance of the states.”) (citing Wright v. Henkel, 190
U.S. 40, 61 (1903)). In light of these principles, we turn to the four enumerated
factors to determine if certification for the extradition of Pres. Martinelli should be
issued.
B.

The Authority to Conduct Extradition Proceedings

There is no dispute between the parties that the Court has jurisdiction over
Pres. Martinelli to conduct his extradition proceedings.

Section 3184 explicitly

authorizes any magistrate judge authorized by a court of the United States to
conduct extradition proceedings.

See id. (“[A]ny justice or judge of the United
23

States, or any magistrate judge authorized so to do by a court of the United States,
or any judge of a court of record of general jurisdiction of any States.”). And Local
Magistrate Rule 1(a)(3) also empowers United States Magistrate Judges of this
District to conduct extradition proceedings.

Furthermore, Pres. Martinelli was

arrested in Coral Gables, Florida, which confers jurisdiction upon this Court. See
18 U.S.C. § 3184 (stating that a judge “may, upon complaint made under oath,
charging any person found within his jurisdiction . . . issue [its] warrant for the
apprehension of the person so charged.”). Therefore, the first factor has been met
because the Court has jurisdiction over Pres. Martinelli and possesses the authority
to conduct his extradition proceedings. See 18 U.S.C. § 3184.
C.

Valid Extradition Treaties Exist

Section 3184 provides for extraditions in instances in which a treaty or
convention is in force between the requesting state and the United States. Here,
Susan Benda, Assistant Legal Adviser for Law Enforcement and Intelligence in the
Office of the Legal Adviser for the Department of State, has attested by declaration
that the Treaty is in full force and effect between Panama and the United States.
[D.E. 8]. She also averred that the Treaty is supplemented by the UNCAC and the
Budapest Convention, to which both Panama and the United States are parties.
See id. (“Each of the offenses to which this article applies shall be deemed to be
included as an extraditable offense in any extradition treat existing between States
Parties.”).
Because every Circuit Court, including our own, has deferred to the executive
branch on this factor, we find based on the unrebutted evidence, and the lack of
24

opposition from the Government or Pres. Martinelli, that the Treaty between
Panama and the United States remains in full force and effect. See Kastnerova, 365
F.3d at 986 (“[E]very other Court of Appeals to consider whether a treaty has lapsed
has deferred to the Executive’s determination.”) (citing United States ex rel. Saroop
v. Garcia, 109 F.3d 165, 171 (3d Cir. 1997); Then v. Melendez, 92 F.3d 851, 854 (9th
Cir. 1996); New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847,
852 (2d Cir. 1992); Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir. 1978)); see
also 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.”); United States v. Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir. 2002)
(“[T]he State Department’s interpretation of a treaty is entitled to great deference.”)
(citations omitted). Therefore, we find that the second extradition factor has been
met and that all of the applicable treaties between Panama and the United States
are in effect.
D.

The Alleged Crimes Are Extraditable Under the Treaties

The third factor is an inquiry that depends on the language of the particular
treaty at issue. Extradition treaties “either list the offenses for which extradition
shall be granted or designate a formula by which to determine extraditable
offenses.” United States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988) (internal
quotation marks and citation omitted). Because the 1904 Treaty enumerates the
offenses for which extradition may be sought, we must determine whether the
alleged crimes in this case are included.
25

Article I of the 1904 Treaty provides for the return of fugitives charged with,
or convicted of, an extraditable offense. Offenses are extraditable if (1) they are
encompassed by the list set forth in Article II of the Treaty, or (2) they are
encompassed by the lists of offenses set forth in the UNCAC and the Budapest
Convention, and meet the requirement of dual criminality. [D.E. 15 at 9-11]. The
dual criminality requirement is met where the description of criminal conduct
provided by Panama in support of its charges would be criminal under U.S. federal
law. See, e.g., Gallo-Chamorro, 233 F.3d at 1306 (“Dual criminality mandates that
a prisoner be extradited only for conduct that constitutes a serious offense in both
the requesting and surrendering country.”). The corresponding offenses need not be
mirror images of each other because “the law does not require that the name by
which the crime is described in the two countries shall be the same; nor that the
scope of liability shall be coextensive, or, in other respects the same in the two
countries.”

Collins, 259 U.S. at 312.

Dual criminality only requires that the

“particular act charged is criminal in both jurisdictions,” id., and that “[t]he
essential character of the transaction is the same . . . .” Wright, 190 U.S. at 58; see
also In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir. 1986) (“[E]ach element
of the offense purportedly committed in a foreign country need not be identical to
the elements of a similar offense in the United States. It is enough that the conduct
involved is criminal in both countries.”).
Here, the Government argues that all four of the charges pending against
Pres. Martinelli are extraditable and that this comports with the view of the State

26

Department and Panama.

[D.E. 8 (“The offenses of embezzlement for which

extradition is sought are covered under Article II of the Treaty,” and “are among the
offenses . . . specified [in the UNCAC] . . . The offenses of interception of private
telecommunications without judicial authority and tracking, persecution and
surveillance without judicial authority for which extradition is sought are among
the offenses . . . specified [in the Budapest Convention].

Therefore, all crimes for

which extradition is sought are incorporated as extraditable offenses under the
Treaty.”)].
Moreover, even if ambiguity existed as to whether the Panamanian offenses
were covered under the Treaty, the Government maintains that we should find that
all of the offenses are extraditable because in interpreting the Treaty, “a narrow
and restricted construction is to be avoided,” and “if a treaty fairly admits of two
constructions, one restricting the rights which may be claimed under it, and the
other enlarging it, the more liberal construction is to be preferred.”

Factor v.

Laubenheimer, 290 U.S. 276, 294 (1933) (citations omitted); see, e.g., Martinez v.
United States, 828 F.3d 451, 463 (6th Cir. 2016) (“[E]ven if there were ambiguity
about the point, that would not change things. For ambiguity in an extradition
treaty must be construed in favor of the ‘rights’ the ‘parties’ may claim under it.”)
(citing Factor, 290 U.S. at 294).
1. The Embezzlement Charges
First, the Government contends that the two embezzlement charges are
extraditable because they are expressly provided for under Article II of the Treaty,

27

which enumerates “embezzlement by public officers” in excess of $200. See Treaty
at Art. II. Specifically, Article 338 of the Criminal Code of Panama (embezzlement
by theft and misappropriation) provides that “[a] public officer who takes or
embezzles in any way, or consent that somebody else appropriates, takes or
embezzles any form of money, securities or property which administration,
collection or custody have been entrusted by virtue of his position, shall be punished
. . . .” (RAMB000031).7 And Article 341 of the same code (embezzlement of use)
provides that “[a] public officer who, for purposes other than service, uses in his own
or another’s benefit, or allows somebody else to use money, securities or property
under his charge by reasons of his duties or which are in his custody, shall be
punished . . . .” (RAMB000032). Thus, the Government argues that the conduct
prohibited under Articles 338 and 341 constitute embezzlement by public officers
under the Treaty and that the charges against Pres. Martinelli are extraditable
offenses.
The Government also suggests that Pres. Martinelli is incorrect in his view
that embezzlement under the Treaty covers only the embezzlement of money.
Instead, the Treaty, when interpreted liberally, purportedly refers to the
embezzlement of anything of value in excess of $200. And the Government believes
that “[t]here is no requirement in the Treaty that the crime charged needs to be the
mirror image of an offense listed in the Treaty.” Matter of the Extradition of Pineda
Lara, 1998 WL 67656, at *13 (S.D.N.Y. Feb. 18, 1998); see, e.g., Matter of the
References to the government’s documents and exhibits shall be to the
Bates Numbered documents identified as “RAMB____.”
7

28

Extradition of Matus, 784 F. Supp. 1052, 1057 (S.D.N.Y. 1992) (the fact that a
Chilean offense included “additional essential elements [when compared with the
offense listed in the applicable treaty] . . . [did] not render [the Chilean offense] nonextraditable”); Polo v. Horgan, 828 F. Supp. 961, 964-65 (S.D. Fla. 1993) (treaty that
listed “fraud” as extraditable encompassed offenses charged as “embezzlement” and
“unfaithful management”); Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986)
(treaty that listed “murder” as extraditable encompassed offenses charged as “war
crimes”).
Alternatively, even if Article II of the Treaty did not encompass the
embezzlement charges, the Government contends that the UNCAC provides an
independent basis for finding the embezzlement charges against Pres. Martinelli
extraditable.

That convention enumerates “embezzlement, misappropriation or

other diversion of property by a public official.” UNCAC, Art. 17. The Government
argues that Panama’s embezzlement charges clearly fall within that broad
definition because it refers to “property” and not simply “money.” The charges also
allegedly meet the UNCAC’s dual criminality requirement because Pres.
Martinelli’s conduct is “punishable under the domestic law of both the requesting
state and the requested State Party.”

UNCAC, Art. 44(a).

Therefore, if Pres.

Martinelli committed the same offenses in the United States, the Government

29

concludes that his conduct would be criminal under U.S. law8, including
embezzlement in violation of 18 U.S.C. § 641.
Our review of the record on extradition confirms that the 1904 Treaty covers
the embezzlement charges alleged against Pres. Martinelli.

The Government

correctly relies on the treaty language that embezzlement is extraditable when it
“exceeds the sum of two hundred dollars.” See Treaty at Art. II. (emphasis added).
Nothing in the plain language of the Treaty supports the view that embezzlement
must be restricted solely to money and cannot be applied to the embezzlement of
property.
Moreover, the Supreme Court has made it clear that if a treaty has two
conflicting interpretations, the more liberal construction is to be preferred in favor
of extradition:
In choosing between conflicting interpretations of a treaty obligation, a
narrow and restricted construction is to be avoided as not consonant
with the principles deemed controlling in the interpretation of
international agreements. Considerations which should govern the
diplomatic relations between nations, and the good faith of treaties, as
well require that their obligations should be liberally construed so as to
effect the apparent intention of the parties to secure equality and
reciprocity between them. For that reason if a treaty fairly admits of
two constructions, one restricting the rights which may be claimed
The elements required for a conviction under Section 641 are as
follows: (1) the money or thing of value described in the indictment belonged to the
United States; (2) the defendant embezzled, stole, or knowingly converted the money
or thing of value to his own use or to someone else’s use; (3) the defendant knowingly
and willfully intended to deprive the United States of the use or benefit of the
money or thing of value; and (4) the money or thing of value had a value greater
than $1,000.
See Eleventh Circuit Pattern Jury Instructions (Criminal)
(hereinafter “Pattern”), Offense Instruction No. 21 (2016); see also, e.g., United
States v. McCree, 7 F.3d 976, 980 (11th Cir. 1993).
8

30

under it, and the other enlarging it, the more liberal construction is to
be preferred.
Factor, 290 U.S. at 293-94. In other words, “[t]he correct analysis must focus on
whether the crime charged contains at least the same essential elements as offenses
listed in the Treaty.”

Pineda Lara, 1998 WL 67656, at *13 (citing Matter of

Extradition of Matus, 784 F. Supp. 1052, 1057 (S.D.N.Y. 1992) (offense is
extraditable where crime charged contains essential elements of treaty offense);
Koskotas v. Roche, 740 F. Supp. 904, 910 (D. Mass. 1990), aff’d, 931 F.2d 169 (1st
Cir. 1991) (“The focus should be on whether the crime charged and the treaty
offense share the same essential elements”)). Therefore, we need not reach the
question of whether embezzlement is extraditable under the UNCAC because we
hold that the embezzlement of property or money in excess of $200 is an
extraditable offense under the 1904 Treaty.
2. The Surveillance Charges
The next issue – and perhaps the most contested – is whether the Treaty
covers the alleged surveillance crimes. There is no dispute that the two surveillance
crimes were originally not extraditable offenses under the 1904 Treaty.

The

surveillance crimes were added as extraditable offenses under the Budapest
Convention effective as to Panama on July 1, 2014. The original Treaty provides
that “[t]he present Treaty shall not operate retroactively.” Treaty, Art. XII. Yet,
the charges against President Martinelli are based on crimes alleged to have
occurred before July 1, 2014. [D.E. 1]. Therefore, Pres. Martinelli contends on three
separate grounds that extradition on the surveillance charges would require

31

applying the Budapest Convention retroactively, in violation of the original Treaty’s
non-retroactivity language. See Galanis v. Pallanck, 568 F.2d 234, 239 (2d Cir.
1977) (“[T]he enlargement in the list of extraditable crimes would not subject to
extradition persons who had committed such crimes prior to the effective date of the
new treaty.”).
First, Pres. Martinelli claims that the Budapest Convention did not contain
any non-retroactivity language. Like all multilateral conventions, Pres. Martinelli
suggests that the Budapest Convention applies to bilateral treaties between
signatory states – each of which have different terms, conditions, and restrictions.
As such, the Budapest Convention supposedly applies to different treaties in
different ways. See Budapest Convention, Art. 24 ¶ 5 (“Extradition shall be subject
to the conditions provided for by the law of the requested Party or by applicable
extradition treaties[.]” (emphasis added)); id. at Art. 39 ¶¶ 1, 3 (“The purpose of the
present Convention is to supplement applicable multilateral or bilateral treaties or
arrangements between the Parties[.] Nothing in this Convention shall affect other
rights, restrictions, obligations and responsibilities of a Party.” (emphasis added)).
Pres. Martinelli suggests that the language from the Budapest Convention is
not surprising considering it would be an efficient way to handle all conditions and
restrictions that may vary from treaty to treaty, including warrant requirements,
political offense exceptions, statutes of limitations, and non-retroactivity provisions.
Thus, the Budapest Convention’s addition of surveillance crimes purportedly has no
effect on the 1904 Treaty’s non-retroactivity provision. Courts in our district have

32

held in prior cases that conventions with similar language have expressly
incorporated the conditions of the underlying treaty notwithstanding the addition of
extraditable offenses. See, e.g., Matter of Extradition of Aguilar, 2004 WL 763802,
at *3 (S.D. Fla. Apr. 7, 2004) (“This Court disagrees with the Government’s
interpretation of the Treaty and Convention.

The Convention merely added

extraditable offenses, it did not in any way constitute a blanket modification of the
Treaty which would eliminate the presence in the country requirement.”).
Second, Pres. Martinelli acknowledges that the State Department is accorded
deference on the interpretation of international treaties.

Yet, Pres. Martinelli

argues that the supplemental declaration from a State Department official that
addresses the Treaty’s non-retroactivity provision is only one page in length and
cites no authority – legal, factual, or otherwise – for the position that the Treaty can
apply retroactively for the surveillance crimes.

Instead, the declaration merely

surmises that “[t]his provision was intended to preclude extradition in cases where
the criminal conduct at issue occurred prior to entry into force of the Treaty in
1905.”

[D.E. 51-1].

Pres. Martinelli contends that this letter offers nothing of

substance from an analytical perspective and, aside from being conclusory, the
declaration purports to inform what the parties intended the non-retroactivity
provision to mean. Not only is this something that the State Department official
cannot do because of a lack of evidence, it is something he may not do under the
plain and unambiguous terms of the non-retroactivity provision. See United States
v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (“In construing a treaty, as in

33

construing a statute, we first look to its terms to determine its meaning.”); Maximov
v. United States, 373 U.S. 49, 54 (1963) (“[I]t is particularly inappropriate for a
court to sanction a deviation from the clear import of a solemn treaty between this
Nation and a foreign sovereign, when, as here, there is no indication that
application of the words of the treaty according to their obvious meaning effects a
result inconsistent with the intent or expectations of its signatories.”).
Third, Pres. Martinelli contends that there is nothing ambiguous about the
sentence in the 1904 Treaty containing the non-retroactivity provision. The Treaty
states it “shall take effect on the thirtieth day after the date of the exchange of
ratifications, and shall not operate retroactively.” Treaty, Art. XII. This allegedly
means two distinct and separate things: (1) that the Treaty will take effect on a
certain date, and (2) that the Treaty will not operate retroactively. Pres. Martinelli
argues that this undercuts the Government’s entire position, which is that the
clause preceding the non-retroactivity provision shows that the provisions applies
only to offenses committed before 1905, i.e. the Treaty’s effective date.
Instead, Pres. Martinelli suggests that the conjunction – “and” – links two
independent clauses and therefore involves two independent conditions. He also
contends that the sentence employs the verb shall twice as further evidence that the
verb refers back to the subject of the sentence: the Treaty. In other words, Pres.
Martinelli argues that the Treaty shall be effective on the applicable date and the

34

Treaty shall not operate retroactively.9 Pres. Martinelli believes that, under the
Government’s interpretation, the second “shall” would be surplusage, in derogation
of basic principles of statutory construction. See Black’s Law Dictionary, 1581 (9th
ed. 2009) (defining “surplusage” as “[r]edundant words in a statute or legal
instrument; language that does not add meaning”); see also Brotherhood of
Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v.
CSX Transp., Inc., 522 F.3d 1190, 1195 (11th Cir. 2008) (“[C]ourts must reject
statutory interpretations that would render portions of a statute surplusage.”);
United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991) (“A basic
premise of statutory construction is that a statute is to be interpreted so that no
words shall be discarded as being meaningless, redundant, or mere surplusage.”).
Because both conditions were incorporated via the Budapest Convention,
extradition on the surveillance charges against Pres. Martinelli would run afoul of
non-retroactivity clause in the 1904 Treaty.
Pres. Martinelli also argues that if the parties wanted to give the Treaty
retroactive effect – like the United States has done in numerous other treaties –
they would said so through unambiguous language that accomplished this goal.10

Pres. Martinelli also states that the Treaty employs a comma before
the conjunction linking the clauses as further evidence that the two are
independent. As such, Pres. Martinelli believes that the comma would serve no
discernible purpose apart from emphasizing the separateness of the two clauses.
9

See, e.g., Treaty on Extradition Between New Zealand and the United
States of America, U.S.-N.Z., Dec. 8, 1970, T.I.A.S. No. 7035 (“This Treaty shall
apply to offenses specified in Article II committed before as well as after the date
this Treaty enters into force, provided that no extradition shall be granted for an
10

35

The parties failed to do so. So Pres. Martinelli urges the Court to deny extradition
on the surveillance offenses because that would constitute a retroactive application
of the Treaty. See Fernandez-Morris, 99 F. Supp. 2d at 1360 (“In order for an
extradition to be proper . . . the charges must be included in the treaty as
extraditable offenses[.]”).
The Government strongly disputes Pres. Martinelli’s interpretation of the
non-retroactivity provision for several reasons. First, the Government argues that
the plain language of the Treaty precludes extradition only for offenses occurring
prior to its entry into force and that the plain language supports this view: “The
present Treaty shall take effect on the thirtieth day after the date of the exchange of
ratifications and shall not operate retroactively.”

Treaty, Art. XII.11

In other

offense committed before the date this Treaty enters into force which was not an
offense under the laws of both countries at the time of its commission.”); Treaty on
Extradition Between the United States and Paraguay, U.S.-Par., May 7, 1974,
T.I.A.S 7838 (“This Treaty shall apply to offenses specified in Article 2 committed
before as well as after the date this Treaty enters into force, provided that no
extradition shall be granted for an offense committed before the date this Treaty
enters into force which was not an offense under the laws of both Contracting
Parties at the time of its commission.”); Treaty on Extradition Between the United
States and Italy, U.S.-Ita., Mar. 11, 1975, T.I.A.S. 8052 (“This Treaty shall apply to
offenses mentioned in Article II committed before as well as after the date this
Treaty enters into force, provided that no extradition shall be granted for an offense
committed before the date this Treaty enters into force which was not an offense
under the laws of both Contracting Parties at the time of its commission.”).
Although anti-retroactivity provisions are not a common feature of
many modern extradition treaties, the provision at issue here is not unique. See,
e.g., Treaty Between the United States and the Kingdom of Denmark for the
Extradition of Fugitives from Justice, Art. XII, U.S.-Den., Jan. 6, 1902, 32 Stat.
1906 (applicable in Iceland) (“The present Treaty shall take effect on the thirtieth
day after the date of the exchange of ratifications, and shall not operate
retroactively.”); Treaty Between the United States and Servia for the Mutual
11

36

words, the plain language allegedly indicates that the Treaty has effect only after
the date of the exchange of ratification, May 8, 1905, and does not cover offenses
occurring prior to that date.

The Government contends that this reading is

reinforced by the fact that the next sentence relates again to the year 1905: “The
ratifications of the present Treaty shall be exchanged at Washington or at Panama
as soon as possible, and it shall remain in force for a period of six months after
either of the contracting Governments shall have given notice of a purpose to
terminate it.” Id.

So the Government concludes that the Budapest Convention

preserves the entire condition in Article XII, which is that the Treaty may not be
applied to offenses occurring before May 8, 1905.
The Government also suggests that Pres. Martinelli’s reading of the nonretroactivity provision is not supported by the text. The Government argues that
the comma separating the two clauses in the first sentence of Article XII – which
does not appear in the equally valid Spanish version of the Treaty – merely sets
apart the string of prepositional phrases in the first clause from the second clause.12
The dependence of the second clause of the first sentence in Article XII (“shall not
operate retroactively”) upon the first clause is apparently evident from the fact that
it lacks a subject, and thus does not make sense standing alone. See Hamilton v.
Extradition of Fugitives from Justice, Art. XI, U.S.-Yugo., Oct. 25, 1901, 32 Stat.
1890 (“The present Treaty shall take effect on the thirtieth day after the date of the
exchange of ratifications and shall not act retroactively.”).
In Spanish, Article XII of the Treaty reads: “El presente Tratado
empezará a regir el trigésimo día después de la fecha en que se hayan canjeado las
ratificaciones y no tendrá efecto retroactivo.” App’x to Declaration of Susan R.
Benda [D.E. 8].
12

37

Werner Co., 268 F. Supp. 2d 1085, 1088 (S.D. Iowa 2003) (“An independent clause is
one that contains a subject and a predicate and makes sense standing alone, that is,
it expresses a complete thought.”); In re Swetic, 493 B.R. 635, 639 (Bankr. M.D. Fla.
2013) (finding that a clause following the conjunction “and” was “not an
independent clause” because it did “not have a subject, and it [did] not make sense
on its own”).
Under this interpretation, the first clause of the sentence (“[t]he present
Treaty shall take effect on the thirtieth day after the date of the exchange of
ratifications”) is independent (i.e. the

controlling

clause)

and

is

merely

complemented by the second clause. See In re Rowe, 750 F.3d 392, 396 (4th Cir.
2014) (“[T]he most natural reading of [a provision containing “shall”] is that the
independent clause states a mandatory rule, while the dependent clause states
when that rule applies.”) (quotation omitted). Therefore, the most natural reading,
in the Government’s view, is that the second clause prohibits a retroactive
application of the Treaty with respect to the timeframe identified in the clause
preceding it. See Freeman v. Brown Bros. Harriman & Co., 250 F. Supp. 32, 34
(S.D.N.Y.), aff’d, 357 F.2d 741 (2d Cir. 1966) (“In construing a statute, a particular
expression should not be detached from its context so as to give it a special
meaning.”).
The Government also takes issue with Pres. Martinelli’s reliance on the
Second Circuit’s decision in Galanis v. Pallanck, 568 F.2d at 234. The Government
argues that Galanis did not involve the supplementation of an extradition treaty by

38

a multilateral convention, as is the case here. Rather, the Second Circuit allegedly
only considered whether a fugitive, whose extradition had been requested in 1974
pursuant to an 1842 extradition treaty between the United States and Canada,
could take advantage of a double-jeopardy defense added to the bilateral extradition
effective in 1976. See id. at 237. The latter treaty provided that it “terminate[d] and
replace[d] any extradition agreements . . . in force between the United States and
Canada; except that the crimes listed in such agreements and committed prior to the
entry into force of this Treaty shall be subject to extradition pursuant to the
provisions of such agreements.” Id. The Government suggests that the Second
Circuit held that, despite this language, “the double jeopardy clause of the [1976]
treaty applies in all proceedings begun after the exchange of ratifications even
though the crime occurred before.” Id. at 239. In so holding, the Second Circuit
purportedly rejected the contrary view of the U.S. Department of State in light of
the fact that “it would seem reasonable to conclude that [the drafters of the 1976
treaty] . . . wished this and other improvements implemented by the 1976 treaty to
become operative as soon as the treaty became effective.” Id.
By contrast, the Government believes that in this case there is no similar
reason why it would be reasonable to reject the view of the State Department,
particularly where this view is shared by Panama and is supported by the parties’
past practices.13

The Government maintains that Pres. Martinelli’s reliance on Galanis
is also somewhat misleading because he claims that the Second Circuit
“consider[ed] nearly identical language” to the language at issue here and “found
13

39

In any event, the Government believes that there is strong support to find
that the supplemental addition of surveillance crimes had no effect on the Treaty’s
non-retroactivity provision because that provision simply discusses how the Treaty
shall “operate.” Treaty, Art. XII. The non-retroactivity provision is also allegedly
not a “condition” of extradition,14 but even if it was, the Government believes it
would be of no help to Pres. Martinelli because it remains tied to the date of the
original Treaty. See Budapest Convention, Art. 24(5) (“Extradition shall be subject
to the conditions provided for by the law of the requested Party or by applicable
that [a] statement that ‘[t]he Treaty is not retroactive in effect’ meant, at a
minimum, that ‘the enlargement in the list of extraditable crimes would not subject
to extradition persons who had committed such crimes prior to the effective date of
the new treaty.’” [D.E. 58, at 4 (emphasis in original) (quoting Galanis, 568 F.2d at
239).] The Government argues that the language in Galanis regarding the nonretroactive effect of the treaty did not appear in the treaty itself, but rather in a
letter from the Acting Secretary of State when he submitted the treaty to the
president. Plus the Second Circuit found the statement “altogether inconclusive”
and speculated as to “what [the statement] could mean.” Galanis, 568 F.2d at 239.
As such, Galanis allegedly has no application here. Similarly, the Government also
argues that Pres. Martinelli’s reliance on In re Extradition of Aguilar is misplaced
because the court in that case found that the relevant convention “merely added
extraditable offenses,” but “did not in any way constitute a blanket modification of
the Treaty.” See 2004 WL 763802, at *3. Along those same lines, the Government
suggests that Budapest Convention did not amend the non-retroactivity provision;
rather, the operative date for anti-retroactivity, “the thirtieth day after the date of
the exchange of ratifications,” remains fixed. Therefore, following Panama’s
accession to the Budapest Convention well after that date, Panama could supposedly
request extradition for the crimes enumerated therein, irrespective of when those
crimes were alleged to have occurred.
The examples of conditions described in the Explanatory Report to the
Budapest Convention are where the treaty provides “that extradition shall be
refused if the offence is considered political in nature, or if the request is considered
to have been made for the purpose of prosecuting or punishing a person on account
of, inter alia, race, religion, nationality or political opinion.” Council of Eur.,
Explanatory Report to the Convention on Cybercrime, ¶ 250 (Nov. 23, 2001),
available at https://rm.coe.int/16800cce5b.
14

40

extradition treaties, including the grounds on which the requested Party may refuse
extradition.”). And to the extent the non-retroactivity provision may be construed
as a “restriction[,]” the Government argues that the relevant text is still tied
exclusively to the date of ratification. See id. Art. 39(3) (“Nothing in this Convention
shall affect other rights, restrictions, obligations and responsibilities of a Party.”).
In sum, the Government contends that (1) the Budapest Convention merely
supplemented the list of extraditable offenses set forth in the Treaty as of the date of
Panama’s accession, and that (2) the Convention is not being applied retroactively
because the non-retroactivity language only applies to crimes committed before
1905.
Second, the Government argues that the Court should defer to the view of the
State Department – which Panama concurs – that the non-retroactivity provision
does not prevent extradition in this case.

The State Department unequivocally

views the Treaty’s non-retroactivity provision as precluding extradition only in
cases where the criminal conduct at issue occurred prior to the entry into force of the
Treaty in 1905. [D.E. 51-1].

The State Department claims “that the criminal

conduct in this case alleged to constitute interception of private telecommunications
without judicial authority and tracking, persecution, and surveillance without
judicial authority under Panamanian law, which occurred prior to Panama’s
accession to the [Budapest Convention], but well after the entry into force of the
[Treaty], is extraditable under the terms of the Treaty.”

Declaration of Tom

Heinemann (Aug. 18, 2017), Exh. A, ¶ 2. And although Panama’s accession to the

41

Budapest Convention on July 1, 2014, was significant in that it allowed Panama to
request and grant extradition for crimes such as wiretapping offenses as of that
date, the Government suggests that the date is irrelevant to the issue of nonretroactivity. See id.
In light of the State Department’s view on the non-retroactivity provision in
the Treaty, the Government urges the Court to defer to this interpretation because
“[i]t is well settled that the Executive Branch’s interpretation of a treaty is entitled
to great weight.” Abbott v. Abbott, 560 U.S. 1, 15 (2010) (citation and internal
quotation marks omitted); see, e.g., Duarte- Acero, 296 F.3d at 1282 (“[T]he State
Department’s interpretation of a treaty is entitled to great deference.”); Demjanjuk
v. Petrovsky, 776 F.2d 571, 579 (6th Cir. 1985) (deferring to Department of State’s
view that the offense for which the fugitive’s extradition had been requested
constituted “murder,” which was listed as an extraditable offense in the U.S.-Israel
extradition treaty), vacated on other grounds, 10 F.3d 338 (6th Cir. 1993); Heilbronn
v. Kendall, 775 F. Supp. 1020, 1023-24 (W.D. Mich. 1991) (deferring to Department
of State’s view that the offense for which the fugitive’s extradition had been
requested constituted “bribery,” which was listed as an extraditable offense in the
U.S.-Israel extradition treaty).
Furthermore, the State Department’s interpretation is purportedly consistent
with the practice adopted by the United States and Panama in recent extraditions
involving alleged offenses pre-dating the entry into force of multilateral
conventions.

For example, the United States has previously submitted, and

42

Panama previously granted, an extradition request relying on the UNCAC for a
defendant charged with bribery and money laundering offenses allegedly committed
prior to when the United States and Panama became parties to that Convention.
Declaration of Tom Heinemann (Aug. 18, 2017), Exh. A, ¶ 6. Similarly, the United
States submitted an extradition request, which Panama granted, relying on the
United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, for a defendant charged with drug trafficking offenses
alleged committed prior to when Panama became a party to that Convention. See
id.

The United States has apparently followed the same practice with other

countries with which it has a treaty containing anti-retroactivity language identical
to that at issue here. See id. ¶ 7 (discussing two separate cases in which the United
States granted extradition requests submitted by Bosnia- Herzegovina for fugitives
charged with war crimes, relying on the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, to which the United
States became a party after the alleged crimes occurred).
Though the Government believes that the view of the State Department is
alone sufficient to end the inquiry into meaning of the non-retroactivity provision,
deference to that view is allegedly warranted even more where Panama’s Ministry of
Foreign Affairs concurs with that view.

See Kolovrat v. Oregon, 366 U.S. 187, 194

(1961) (noting that “[w]hile courts interpret treaties for themselves, the meaning
given them by the departments of government particularly charged with their
negotiation and enforcement is given great weight,” and referring to the views of the

43

“responsible agencies of the United States and of Yugoslavia”); cf. In re the
Extradition of Arias Leiva, 2017 WL 486942, at *6 (S.D. Fla. Feb. 6, 2017) (finding
that the U.S.-Colombia extradition is in full force and effect because “the executive
branches of the United States and Colombia have stated that it is the understanding
of both sovereigns that the Extradition Treaty is currently in effect”).15
The Government’s final argument is that, even if the non-retroactivity
provision was ambiguous, the Court should follow the general cannon of extradition
law requiring that extradition treaties be construed liberally in favor of extradition.
See Factor, 290 U.S. at 293-94 (1933); Martinez, 828 F.3d at 463. Pres. Martinelli’s
only alleged response is that the canon should not be applied here because there is
no ambiguity in the provision. [D.E. 58, at 7-8]. But, the Government contends
that Pres. Martinelli has no support for this argument. As such, Pres. Martinelli’s
contentions are meritless; hence, the Court should construe the Treaty in favor of
finding the surveillance offenses extraditable.
As an initial matter, “[t]he interpretation of a treaty, like the interpretation
of a statute, begins with its text.” Medellín v. Texas, 552 U.S. 491, 506 (2008).
Here, the relevant text provides that “[t]he present Treaty shall take effect on the

Panama’s official stance is that the anti-retroactivity provision
“establishes that the 1904 Treaty will not operate—by creating any treaty rights or
obligations—before its entry into effect on . . . 8 May 1905,” thus “exclud[ing] crimes
committed before that date from the 1904 Treaty’s scope.” Declaration of Panama’s
Ministry of Foreign Affairs – Directorate General of Legal Affairs and Treaties,
Exh. A, ¶ 3. Furthermore, in Panama’s view, from the “date [of its accession to the
Budapest Convention] forward, Panama had a right under the 1904 Treaty, or any
other extradition treaty, to submit a request for extradition in respect of those
offenses.” Id. ¶ 5.
15

44

thirtieth day after the date of the exchange of ratifications and shall not operate
retroactively.”

Treaty, Art. XII. Given the structure of this sentence, the parties

disagree on whether the sentence contains (1) two independent clauses, or (2) an
independent clause and a dependent clause. The reason why this is important is
that the Government suggests that the sentence can only be read as one condition,
or restriction, tied together between an independent and dependent clause. In other
words, the non-retroactivity language is tethered to the ratification date of the
Treaty in 1905.
On the other hand, Pres. Martinelli construes the sentence as two
independent clauses that contain two separate conditions. If Pres. Martinelli is
correct, that means that the latter condition – that the Treaty is non-retroactive –
stands on its own, has no limitation to the year 1905, applies to the crimes
incorporated via the Budapest Convention, and bars the Government from pursuing
his extradition for offenses that occurred prior to July 1, 2014.
While both parties have certainly presented reasonable interpretations of the
meaning of this sentence, we agree with the Government that the relevant text
contains both an independent clause (“[t]he present Treaty shall take effect on the
thirtieth day after the date of the exchange of ratifications”) and a dependent clause
(“shall not operate retroactively”). We reach this conclusion because the latter part
of the sentence is dependent on the first and lacks a subject. In other words, the
latter part only contains a predicate and, without more, makes little sense on its
own. See Hamilton, 268 F. Supp. 2d at 1088 (“An independent clause is one that

45

contains a subject and a predicate and makes sense standing alone, that is, it
expresses a complete thought.”). This means that the likeliest interpretation of the
relevant text, when juxtaposed with the language in the Budapest Convention, is
that the non-retroactivity provision is linked to the date the original Treaty took
effect (i.e. 1905) as one overarching condition or restriction and that no crime
committed before 1905 may be considered extraditable.
A second point of inquiry is whether the non-retroactivity provision is
ultimately a condition or a restriction.

According to the Budapest Convention,

“[e]xtradition shall be subject to the conditions provided for by the law of the
requested party or by applicable extradition treaties,” but “[n]othing in this
Convention shall affect the other rights, restrictions, obligations and responsibilities
of a Party.” Budapest Convention, Arts. 24(5) & 39(3) (emphasis added). Given the
parties’ disagreement on the structural components of the non-retroactivity
provision, the relevant text can arguably be construed as a condition or a
restriction.

For example, assuming that Pres. Martinelli is correct as to the

presence of two independent clauses, there would be two conditions, one of which
includes a standalone condition of non-retroactivity.

Yet, if the Government’s

interpretation is correct, then the relevant text is actually a single restriction
because it limits the applicability of the non-retroactivity provision to the date in
which the Treaty was ratified in 1905. Hence, the structural breakdown of the
sentence is crucial because under one interpretation, it leads to a condition that can

46

be enforced via the Budapest Convention. On the other hand, it otherwise leads to a
restriction that applies solely to the 1904 Treaty.
As stated earlier, we find, based on the structural breakdown of the relevant
text, that there is a both an independent clause and a dependent clause that applies
the non-retroactivity language exclusively to the year 1905.

The relevant text

operates as a single restriction, rather than as two separate conditions, which
restriction limits the non-retroactivity provision to the year 1905.

That is so

because, as a restriction, the Budapest Convention makes clear that “[n]othing in
this

Convention

shall

affect

responsibilities of a Party.”

other

rights,

restrictions,

obligations

and

Budapest Convention, Art. 39(3) (emphasis added).

Under this interpretation, the non-retroactivity language, that is limited to 1905,
remains unchanged when incorporated into the Budapest Convention and does not
bar the Government from pursuing surveillance charges against Pres. Martinelli.
The Government’s arguments on this matter are more persuasive.
In any event, a conclusive determination on whether the relevant text
constitutes a condition or a restriction – or for that matter two independent clauses
as opposed to an independent clause and a dependent clause – is not absolutely
essential to whether the surveillance crimes are incorporated into the Treaty. The
reason why is that the U.S. Supreme Court adopted a principle long ago that “if a
treaty fairly admits of two constructions, one restricting the rights which may be
claimed under it, and the other enlarging it, the more liberal construction is to be
preferred.” Factor, 290 U.S. at 294 (citations omitted). The reason for adhering to

47

this principle stems from the purpose of an extradition treaty, which is to ultimately
facilitate extradition.

As such, Factor requires courts to “interpret extradition

treaties to produce reciprocity between, and expanded rights on behalf of, the
signatories.” In re Extradition of Howard, 996 F.2d 1320, 1330–31 (1st Cir. 1993).
Because Pres. Martinelli’s construction, at best, raises an ambiguity on the
applicability of the non-retroactivity provision, it is not enough to conclude that his
interpretation ultimately prevails and bars his extradition. See, e.g., Martinez, 828
F.3d at 463 (“In the face of one reading of ‘lapse of time’ that excludes the speedytrial right and another reading that embraces it, Factor says we must prefer the
former.”). Therefore, we hold that the alleged surveillance crimes are incorporated
into the Treaty and that the non-retroactivity provision does not bar the
Government from seeking Pres. Martinelli’s extradition.16
E.

Probable Cause Exists for Each Extraditable Charge

The Court must now determine whether the evidence in the extradition
record is sufficient to sustain the charges filed in Panama. If there is insufficient
evidence of probable cause, then the statutory requirements have not been met and
Panama’s allegations “are nothing more than suspicions, and the request must be
The State Department and Panama both agree with our interpretation
on the non-retroactivity clause, and while their views are not conclusive, they are
given great weight and considerable deference. See Kolovrat, 366 U.S. at 194 (noting
that “[w]hile courts interpret treaties for themselves, the meaning given them by the
departments of government particularly charged with their negotiation and
enforcement is given great weight,” and referring to the views of the “responsible
agencies of the United States and of Yugoslavia”); In re the Extradition of Arias
Leiva, 2017 WL 486942, at *6 (finding that the U.S.-Colombia extradition is in full
force and effect because “the executive branches of the United States and Colombia
have stated that it is the understanding of both sovereigns that the Extradition
Treaty is currently in effect”).
16

48

denied.”

Fernandez-Morris, 99 F. Supp. 2d at 1366.

“The purpose [of the

extradition hearing] is to inquire into the presence of probable cause to believe that
there has been a violation of one or more of the criminal laws of the extraditing
country, that the alleged conduct, if committed in the United States, would have
been a violation of our criminal law, and that the extradited individual is the one
sought by the foreign nation for trial on the charge of violation of its criminal laws.”
Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976).
Probable cause is a standard defined by federal law, Sindona v. Grant, 619
F.2d 167 (2d Cir. 1980), and is established when a “prudent man” believes that the
suspect has committed or was committing an offense. See Gerstein v. Pugh, 420
U.S. 103, 111 (1975); Collins, 259 U.S. at 316 (“The function of the committing
magistrate is to determine whether there is competent evidence to justify holding
the accused to await trial, and not to determine whether the evidence is sufficient to
justify a conviction.”) (citations omitted); Fernandez v. Phillips, 268 U.S. 311, 312
(1925) (“Competent evidence to establish reasonable grounds is not necessarily
evidence competent to convict.”).
The probable cause determination is not a finding of fact “in the sense that
the court has weighed the evidence and resolved disputed factual issues,” Caplan v.
Vokes, 649 F.2d 1336, 1342 (9th Cir. 1981) (citing Heiniger v. City of Phoenix, 625
F.2d 842, 843 (9th Cir. 1980)). Instead, probable cause “serve[s] only the narrow
function of indicating those items of submitted evidence on which the decision to
certify extradition is based.”

Caplan, 649 F.2d at 1342 n.10. Thus, it requires

49

“only a probability or substantial chance of criminal activity,” Illinois v. Gates, 462
U.S. 213, 243 n.13 (1983), or, in other words, “the existence of a reasonable ground
to believe the accused guilty’” of the crime charged. Escobedo v. United States, 623
F.2d 1098, 1102 (5th Cir. 1980) (quoting Garcia–Guillern v. United States, 450 F.2d
1189, 1192 (5th Cir. 1971)).

And although probable cause is not necessarily a

difficult standard to meet, “[c]onclusory statements do not satisfy the probable
cause standard.” In re Lehming, 951 F. Supp. 505, 517 (D. Del. 1996) (failing to find
probable cause where the report relied upon by the government did not personally
implicate the relator in the transaction thus leaving that court to speculate as to the
nature of his involvement).
In making a probable cause determination, an extraditee cannot merely
allege

that

the

evidence

submitted

by

the

requesting

country

contains

inconsistencies. See, e.g., Matter of Extradition of Shaw, 2015 WL 3442022, at *7
(S.D. Fla. May 28, 2015) (finding probable cause despite extradite arguing that the
evidence presented was “unreliable, contradictory, inconsistent, unbelievable, and
inadmissible”); Matter of Extradition of Figueroa, 2013 WL 3243096, at *8 (N.D. Ill.
June 26, 2013) (“In sum, although we agree with [the extraditee] that the evidence
that Mexico has provided is by no means perfect, the issue before us is not whether
[he] should be convicted of the crime. . . . Although there may be some
inconsistencies in the record, we do not believe that these are so compelling as to
negate a finding of probable cause.”); Castro Bobadilla, 826 F. Supp. at 1433-34

50

(upholding probable cause finding despite “contradictions in the evidence [that] may
create a reasonable doubt as to [the fugitive’s] guilt”).
Rather, an extraditee must negate or completely obliterate the requesting
country’s showing of probable cause. As Judge Hoeveler stated nearly thirty-years
ago, an extraditee cannot avoid extradition simply by contradicting the requesting
country’s case or its witnesses:
In order to ‘negate’ Hong Kong’s showing of probable cause, Petitioner
must discredit the testimony relied upon by Hong Kong to the extent
that this Court can find that there is not ‘any evidence warranting the
finding that there was reasonable ground to believe the accused guilty.’
Although some doubt as to the credibility of Chan Kam Chuen’s
version of what actually transpired is cast by the fact that his
testimony was provided while he was in prison awaiting sentencing for
the very crime in which he was implicating Petitioner, the appropriate
acid test for his testimony must take place at a trial on the merits, not
on motion for writ of habeas corpus.
Cheng Na-Yuet, 734 F. Supp. at 996 (internal citation omitted).

As one might

expect, “[t]his is a very difficult standard to meet,” Shaw, 2015 WL 3442022, at *9,
especially where “[t]he primary source of evidence for the probable cause
determination is the extradition request, and any evidence submitted in it is
deemed truthful for purposes of this determination.” Matter of Extradition of Atta,
706 F. Supp. 1032, 1051 (E.D.N.Y. 1989) (citing Collins, 259 U.S. at 315-16).
Because an extradition hearing is only preliminary in nature and not a
determination of guilt or innocence, the resolution of any inconsistencies in the
record is of no consequence as long as sufficient evidence of probable cause remains.
See Matter of Extradition of Rodriguez Ortiz, 444 F. Supp. 2d 876, 891-93 (N.D. Ill.
2006) (holding that the issue of inconsistencies in witness statements are “properly

51

reserved for the eventual trial in Mexico”).

Therefore, we must exercise our

independent judgment, as required under federal law, to determine the propriety of
Pres. Martinelli’s extradition.
1. The Arrest Warrant and Panamanian Procedures
Pres. Martinelli first feverishly raises several procedural challenges to the
Government’s evidence of probable cause. He points to an allegedly defective arrest
warrant under Panamanian law, as well as other failures by Panamanian officials
tasked with this investigation.

First, they failed to comply with a mandatory

procedure in this case – imputación – which failure precludes the Panamanian
courts from exercising jurisdiction to issue a valid indictment or arrest warrant.
More specifically, Pres. Martinelli argues that the Treaty requires that the country
seeking extradition produce “a duly authenticated copy of the warrant of arrest in
the country where the crimes has been committed[.]” Treaty at Art. III. Article 481
of the Panamanian Penal Code provides that special procedures include “the
common and ordinary proceedings,” and that it is only after imputación occurs that
a fundamental and mandatory investigation phase may begin. And Pres. Martinelli
also argues that it is not until after the conclusion of the investigation phase that a
prosecutor can issue an indictment. Thus, Pres. Martinelli contends that Díaz –
who claims that imputación is not required in this case – has continually misled the
Court on Panamanian law.17

According to Díaz, imputación is only required by the general
procedures in a criminal action. Because this case is governed by special
17

52

Second, Pres. Martinelli argues that Eleventh Circuit precedent requires a
foreign country seeking extradition to produce an arrest warrant that refers to at
least one extraditable offense. See Hill v. United States, 737 F.2d 950, 951 (11th
Cir. 1984) (“The warrant may specify all the charges if the requesting country so
chooses, but it need refer to only one.”) (emphasis in original). Because the arrest
warrant in this case does not do so, and instead focuses on his “contempt” in failing
to appear, Pres. Martinelli believes it is insufficient on its face to support his
extradition.
Third, Pres. Martinelli takes issue with the Government’s reliance on an
opinion from the State Department that claims that the Treaty “does not require
the warrant of arrest to list the charges for which extradition is sought.” [D.E. 221]. Pres. Martinelli argues that the State Department official cited no legal support
for his opinion and, while the State Department is entitled to some deference on the
interpretation of the Treaty between Panama and the United States, this deference
cannot overcome binding Eleventh Circuit precedent.
As a broad overview, the Government’s response is that Pres. Martinelli’s
arguments lack merit because: (1) they improperly challenge Panama’s assertion
that it had jurisdiction to issue the warrant, and any arguments to the contrary
based on the lack of an imputación are properly decided by a Panamanian court; (2)
they are not factually viable, as the warrant refers to the four charges pending
against Martinelli Berrocal by reference to the number of the criminal case pending
procedures, Díaz attests in his supporting affidavits that imputación is not
required to charge Pres. Martinelli.
53

against him; (3) they would improperly require the Court to second-guess Panama’s
conclusion that under its legal system, the warrant serves as the mechanism to
arrest Martinelli Berrocal on the charges against him; (4) they would improperly
require the Court to read an additional requirement into the Treaty beyond what the
state parties agreed to, see Treaty, Art. III, (requiring only that warrant be “duly
authenticated”); (5) they would be contrary to the parties’ intent to provide for
mutual extradition, as it would impose a requirement at odds with Panama’s usual
legal process; (6) they would be contrary to the canon of extradition law requiring
that ambiguities in the Treaty must be resolved in favor of extradition; and (7) they
would be contrary to the view of the Department of State – which is entitled to great
weight – that the Treaty’s warrant requirement has been satisfied in this case.
[D.E. 22, at 4-11].
In sum, the Government’s primary contention is that the Court should defer
to the view of Panama in interpreting its own laws. That position stands on very
firm footing. See, e.g., Basic v. Steck, 819 F.3d 897, 901 (6th Cir. 2016) (concluding
that “[w]e will not second guess th[e] determination” by the Government of Bosnia
that a “[d]irective to find and arrest” the fugitive constituted the “arrest warrant”
required under the applicable extradition treaty); Skaftouros v. United States, 667
F.3d 144, 160 n.20 (2d Cir. 2011) (noting that “we defer to the Greek courts, which
may consider whether [the fugitive] or the Greek prosecutors have the better
of the argument” regarding whether the warrant underlying the extradition request
was valid under Greek law); Matter of Extradition of Jimenez, 2014 WL 7239941, at

54

*1-2 (D. Md. Dec. 16, 2014) (noting that the court would not “question the reliability
or trustworthiness of a judicial decree from a foreign nation” which stated that the
fugitive’s sentence had not lapsed, despite the fugitive’s claim to the contrary);
Matter of Extradition of Robertson, 2012 WL 5199152, at *7-12 (E.D. Cal. Oct. 19,
2012) (declining to examine Canadian law and Canada’s representation that a “long
term supervision order” forms part of the fugitive’s sentence and is not separate
therefrom); Matter of Extradition of Basic, 2012 WL 3067466, at *19 (E.D. Ky. July
27, 2012) (“declin[ing] to weigh the extent of [Bosnia’s] procedural compliance with
its own laws” because “[t]his court is ill-equipped to parse Bosnian or Republika
Srpska practice for the fine technical points on the topic of warrant issuance”).
As a result, we agree with the Government that it is not the role of U.S.
judges presiding over extradition proceedings to opine on, or worse challenge, a
foreign government’s interpretation of its own law. See, e.g., Grin v. Shine, 187
U.S. 181, 190 (1902) (“[I]t can hardly be expected of us that we should become
conversant with the criminal laws of Russia, or with the forms of warrants of
arrest used for the apprehension of criminals.”); Matter of Extradition of Mathison,
974 F. Supp. 2d 1296, 1310 (D. Or. 2013) (“An American extradition court is
neither equipped nor empowered to interpret and apply the Mexican constitution
or to determine was rights it bestows upon the individuals charged with violating
Mexican laws”); Skaftouros, 667 F.3d at 156 (“Any arguments regarding the
demanding country’s compliance with its own laws . . . are properly reserved for
the courts of that country.”).

55

The governing principle here is that there are important policy
considerations – international comity and respect for a foreign nation’s
sovereignty – that protect a foreign government from being forced to prove that it
is properly construing its own laws. See, e.g., Sainez v. Venables, 588 F.3d 713,
717 (9th Cir. 2009) (“[W]e have declined to rule on the procedural requirements of
foreign law out of respect for other nations’ sovereignty . . . .”); Koskotas, 931 F.2d
at 174 (“Extradition proceedings are grounded in principles of international
comity, which would be ill- served by requiring foreign governments to submit
their purposes and procedures to the scrutiny of United States courts.”); In re
Application for an Order for Judicial Assistance in a Foreign Proceeding in the
Labor Court of Brazil, 466 F. Supp. 2d 1020, 1028 (N.D. Ill. 2006) (“American
courts should treat foreign law the way American courts want foreign courts to
treat American law: avoid determining foreign law whenever possible.”).
Adhering to these principles avoids the risk that a U.S. Court might
erroneously interpret the law of a foreign country. See Sainez, 588 F.3d at 717
(“[W]e recognize the chance of erroneous interpretation is much greater when we
try to construe the law of a country whose legal system is not based on common
law principles.”) (internal quotation marks and citation omitted); Matter of
Assarsson, 635 F.2d 1237, 1244 (7th Cir. 1980) (“We often have difficulty
discerning the laws of neighboring States, which operate under the same legal
system as we do; the chance of error is much greater when we try to construe the
law of a country whose legal system is much different from our own. The

56

possibility of error warns us to be even more cautious of expanding judicial power
over extradition matters.”).
In response to Pres. Martinelli’s specific argument that Panama has failed
to produce a valid arrest warrant in this case, the Government contends that this
argument has been proffered several times and still has no merit.

The

Government reiterates that, in the time that Pres. Martinelli has been detained
pending his extradition, further confirmation has been obtained that the
Panamanian warrant is valid in all respects. In fact, Panama has unequivocally
stated that the arrest warrant “complies with all legal requirements.” Supp. Aff.
of Harry Díaz ¶55. And the Government also states that a copy of the accusations
against Pres. Martinelli was provided to his defense counsel on November 16,
2015, and a hearing on the charges was set for December 11, 2015. See id. ¶52.
When Pres. Martinelli failed to appear for that hearing, the Government claims
that an arrest warrant was properly issued pursuant to Article 158 of Panama’s
Code of Criminal Procedure, which provides that when a defendant fails to appear
when summoned, he “shall be declared in contempt and his provisional detention
shall be ordered.” Id. As such, the Government believes that the arrest warrant
in this case does not need to enumerate the specific charges against Pres.
Martinelli, particularly because Panama has repeatedly asserted that the warrant
is proper and that this Court should not find otherwise.18

Panama previously explained that its warrant serves as “the basis for
detaining [Pres. Martinelli] on . . . the charges for which his extradition was
requested” and comports with Panamanian criminal procedure law. [D.E. 22-1].
18

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The Government also disputes Pres. Martinelli’s suggestion that it failed to
follow the proper process by foregoing the imputación phase of the investigation.
The Government argues that Panama has clarified that an imputación is required
in general prosecutions19 (of anyone subject to Panama’s jurisdiction), but not in
matters of special prosecutions (of people holding special positions of authority
such as Parlacen Deputies). [ D.E. 22-2]; see also Supp. Aff. of Harry Díaz ¶¶4345. For special prosecutions, such as the extradition of Pres. Martinelli, instead of
an imputación, a defendant is allegedly provided notice of the charges against him
through a detailed written complaint describing, inter alia, the acts underlying
the crimes of which he is accused and the evidence proving those acts.

Thus, the

Government argues that no imputación was required in this case. And in any
event, the Government points out that Panama has affirmed that Pres. Martinelli
“has been allowed to exercise fully the guarantees and rights recognized in the
Law, the Constitution, and the International Treaties and Conventions, which have
been signed by the Republic of Panama, . . . and has been guaranteed the right to
know the crimes of which he is being accused and the evidence that support these
Moreover, the U.S. Department of State has expressed its view that the warrant
requirement of the Treaty has been satisfied—a view to which this Court
a l l e g e d l y should defer. See i d ; Declaration of Tom Heinemann, Assistant Legal
Adviser for Law Enforcement and Intelligence in the Office of the Legal Adviser,
Department of State (June 20, 2017). [D.E. 22-1].
Panama contends that in a general proceeding, an investigation may
be initiated merely upon the filing of a report of a crime with the police or
prosecution office, without any specific evidentiary showing. Aff. of Jerónimo
Emilio Meíja Edward, [ D.E. 22-2, at 6-7]. By contrast, in a special proceeding, an
investigation may only be initiated by filing a complaint that demonstrates “prueba
idónea,” which is the equivalent to probable cause.
19

58

allegations.” Supp. Aff. of Harry Díaz ¶51. Therefore, the Government strongly
urges the Court to defer to Panama’s analysis on the process of imputación.
The Government further contends that we should similarly defer to
Panama with respect to its assertion that it may properly rely on the affidavit
provided by Pitti, despite Pres. Martinelli’s suggestion to the contrary.

The

affidavit has not yet been incorporated into the records of Panama’s investigation
allegedly because the proceedings were suspended after Pres. Martinelli failed to
appear when summoned in the case. See Supp. Aff. of Harry Díaz ¶42. But,
according to Panama, once the proceedings are reopened, Article 385 of its
Criminal Procedure Code will permit the prosecution to introduce the affidavit
into the record at that time. See id. Accordingly, the Government believes that
the fact that the affidavit is not currently part of the record in Panama does not
necessarily prevent it from later being used in the prosecution against Pres.
Martinelli.
And finally, contrary to Pres. Martinelli’s assertions, the Government
contends that the Eleventh Circuit did not hold in United States v. Hill, 737 F.2d
950, 952 (11th Cir. 1984), that an extradition treaty’s requirement must refer to at
least one extraditable offense.

In Hill, the Eleventh Circuit purportedly

considered (and found sufficient under the U.S.-Canada extradition treaty) a
warrant that referred to one of the multiple offenses for which a fugitive’s
extradition had been requested. See id. The Eleventh Circuit allegedly held that
there is no “implicit requirement [in the applicable treaty] of a warrant containing

59

all the extraditable charges.”

Id.

Then, in the following sentence, the

Government points out that the Eleventh Circuit noted that the “warrant may
specify all the charges if the requesting country so chooses, but it need refer to only
one.” Id.
The Government believes it is clear that the Eleventh Circuit’s holding was
limited to the conclusion that a warrant reciting one charge satisfies a treaty’s
warrant requirement. Id. And because the court was supposedly not confronted
with the issue of whether a warrant that did not expressly list any charges would
also be sufficient to satisfy the warrant requirement, its statement that a warrant
“need refer to only one” is purportedly dictum. See Legal Servs. Corp. v. Velazquez,
531 U.S. 533, 557 (2001) (“Judicial decisions do not stand as binding ‘precedent’
for points that were not raised, not argued, and hence not analyzed.”) (Scalia,
dissenting) (collecting cases).

The Eleventh Circuit apparently engaged in no

analysis regarding the inclusion of one offense, and only decided whether the
inclusion of one offense was sufficient – not whether it was necessary – to satisfy
the treaty requirement.
After full consideration of the arguments presented in connection with the
Panamanian arrest warrant and the process of imputación, we find Pres.
Martinelli’s contentions to be unpersuasive. First, while it is true that the arrest
warrant in this case refers only to the offense of “contempt” on the face of the
warrant, the associated evidence (i.e. the affidavits and the reference to the
criminal case number) makes clear that there are four charges pending against

60

Pres. Martinelli. And it is equally clear that the four charges are included as an
extraditable offense to satisfy the Eleventh Circuit’s requirement that at least one
charge from the requesting country be extraditable. See Hill, 737 F.2d at 951
(“The warrant may specify all the charges if the requesting country so chooses, but
it need refer to only one.”) (emphasis in original).
Specifically, the Treaty provides that the signatories shall grant extradition
for “[e]mbezzlement by public officers; embezzlement by persons hired or salaried,
to the detriment of their employers; where in either class of cases the
embezzlement exceeds the sum of two hundred dollars; larceny.” Treaty at Art. II;
[D.E. 12-1 at 4]. The Treaty also states that “if the fugitive is merely charged with
a crime, a duly authenticated copy of the warrant of arrest in the country where
the crime has been committed, and of the depositions or other evidence upon
which such warrant was issued, shall be produced.” Treaty at Art. III; [D.E. 12-1
at 5].
Although Pres. Martinelli wishes to impose upon the Government a far
more restrictive standard that requires that a U.S.-style arrest warrant expressly
identify the extraditable charges, we find no authority that supports that view.
The U.S. Supreme Court explained nearly eighty years ago that “a narrow and
restricted construction is to be avoided” when interpreting treaties, Factor, 290
U.S. at 293. And requests for extradition, even in a form that may be technically
faulty under our own procedures, should be honored in good faith whenever
possible. Glucksman, 221 U.S. at 512; Fernandez, 268 U.S. at 312. We see no

61

reason why the arrest warrant in this case should be construed so narrowly to
require Panama to specifically include on its face an extraditable charge when the
warrant, as a whole, makes it clear the grounds for Pres. Martinelli’s extradition.
Accordingly, because extradition treaties should be “interpreted with a view to
fulfil our just obligations to other powers[,]” Grin, 187 U.S. at 184, we hold that the
arrest warrant in this case is valid, satisfies the plain language of the Treaty, and
comports with Eleventh Circuit precedent. See also Fernandez, 268 U.S. at 312
(“Form is not to be insisted upon beyond the requirements of safety and justice.”);
McElvy v. Civiletti, 523 F. Supp. 42, 48 (S.D. Fla. 1981) (finding that courts should
“approach challenges to extradition with a view towards finding the offenses
within the treaty”).
Second, the State Department and Panama are in agreement that the
arrest warrant is valid in this case and that the process of imputación was not
required to extradite Pres. Martinelli.

In its extradition request, Panama

provided an overview of the process applicable to its prosecution of Pres.
Martinelli. And Panama also explained that, under its law, different procedures
apply to general prosecutions and special prosecutions. This view is supported
by the declaration of Díaz, who stated that an imputación only applies to general
prosecutions to provide the defendant with notice of the charges against him.
Supp. Aff. of Harry Díaz ¶¶45-46.
On the other hand, we have studied the numerous provisions of
Panamanian law cited by the declarations from Pres. Martinelli’s expert, Roberto

62

Moreno.

He avers that an imputación was required and that Panama’s

interpretation of its law is erroneous. But like almost every other court tasked
with such a risky enterprise, we ultimately choose to defer to Panama as we will
not second guess its interpretation of how its laws operate. See Skaftouros, 667
F.3d at 160 n.20 (noting that “we defer to the Greek courts, which may consider
whether [the fugitive] or the Greek prosecutors have the better of the
argument.”). While Pres. Martinelli raises plausible arguments why an
imputación was required, we are simply not equipped to opine on a foreign
government’s interpretation of its own law.

See In re Extradition of Basic, 2012

WL 3067466, at *19 (“declin[ing] to weigh the extent of [Bosnia’s] procedural
compliance with its own laws” because “[t]his court is ill-equipped to parse
Bosnian or Republika Srpska practice for the fine technical points on the topic of
warrant issuance”). Díaz explained that than an imputación is not required in
special proceedings because a defendant is provided notice of the charges and
evidence against him in writing through an indictment instead of at a hearing.
[D.E. 46-1, at 36]. While Pres. Martinelli may not accept this explanation, he may
raise his concerns over the interpretation of Panamanian criminal procedures once
he has returned to Panama. See, e.g., Basic, 819 F.3d at 901; Skaftouros, 667 F.3d
at 160 n.20). In sum, we find that the challenged process of an imputación is for
our purposes no bar to the extradition of Pres. Martinelli.

63

2. Immunity Defenses
Next, Pres. Martinelli argues that there is no probable cause to support his
extradition because he has multiple forms of immunity that bar the four
Panamanian offenses presented against him.

In response the Government of

Panama takes the position that neither Article 191 of its Constitution, nor his role
with the Central American Parliament (“Parlacen”),20 provides Pres. Martinelli with
immunity for the charges pending against him.

According to Panama, Article 191

establishes the forum in which criminal charges against a president or former
president may be heard (i.e., the Supreme Court of Justice), but “does not prevent
any President or former President from being investigated and tried for any offense
he committed before he was President or during the time he was President.”

Supp.

Aff. of Harry Díaz ¶35.
Also according to the Government of Panama, Parlacen Deputies, such as
Pres. Martinelli, have “the immunities enjoyed by the Representatives of the State
where they were elected before their Congresses, Legislative Assemblies or
National Assemblies”; however, Panamanian Deputies have no immunity in
criminal matters. Id. ¶ 36. Therefore, there is competent evidence in the record to

Parlacen, created in 1991, consists of elected representatives from
Guatemala, El Salvador, Honduras, Nicaragua, Panama and the Dominican
Republic. This regional parliamentary entity has its head office in Guatemala City
and runs subsidiary organs in the capital of each member state. The Parlacen is
the regional and permanent political entity tasked with implementing the
integration of Central American countries. See http://www.parlacen.int/Portals/0/
Language/English2016-18.pdf.
20

64

show that Pres. Martinelli “is not protected by immunity either as acting or former
head of state, or as a member of [Parlacen].” Id. ¶ 34.
That being said, the most persuasive reason why Pres. Martinelli’s immunity
defense fails is that it is an issue solely reserved for adjudication in Panama. It is
well established that an immunity defense – which is undeniably an affirmative
defense – is not a proper consideration in an extradition proceeding.

See, e.g.,

DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997) (“Affirmative defenses
not specified in the treaty may not be considered.”); Shaw, 2015 WL 3442022, at
*4 (“Courts have determined that affirmative defenses to the merits of the
charge(s) are not to be considered at extradition hearings.”) (citing Charlton v. Kelly,
229 U.S. 447, 462 (1913); Collins, 259 U.S. at 316–17; Hooker v. Klein, 573 F.2d
1360, 1368 (9th Cir. 1978); DeSilva, 125 F.3d at 1112)). Because Pres. Martinelli’s
immunity defense is not an issue that this Court may consider in an extradition
proceeding, we find that this argument lacks merit. See Matter of Extradition of
Harusha, 2008 WL 1701428, at *5 (E.D. Mich. Apr. 9, 2008) (“[A]ffirmative
defenses, including self-defense, are not relevant in extradition hearings and should
not be considered.”) (citations omitted).
3. Due Process
Pres. Martinelli’s third argument is that there is no probable cause because
Díaz has violated his due process rights through several misrepresentations.
Rather than conceding that the MLM equipment was not used in the alleged
wiretapping scheme, Pres. Martinelli contends that Díaz doubles down on his

65

previous lies by claiming that (1) the MLM equipment was capable of infiltrating
and extracting content from cellular phones, and (2) that members of the National
Security Council used MLM equipment to infiltrate and extract content from
cellular phones.
Pres. Martinelli argues that the deception by Díaz is not an arguable point
because Panama’s own evidence purportedly proves that Díaz’s statements are lies.
And the success of Panama’s embezzlement case hinges on Díaz.

So Pres.

Martinelli accuses the DOJ in suborning this perjury and colluding with Díaz to
violate Pres. Martinelli’s right to due process.21
Yet, Pres. Martinelli’s argument is misdirected because due process is not
violated “so long as the United States has not breached a specific promise to an
accused regarding his or her extradition, and bases its extradition decisions on
diplomatic considerations without regard to such constitutionally impermissible
factors as race, color, sex, national origin, religion, or political beliefs, and in
accordance with such other exceptional constitutional limitations as may exist
because of particularly atrocious procedures or punishments employed by the foreign
jurisdiction.” Matter of Extradition of Burt, 737 F.2d 1477, 1487 (7th Cir. 1984)
(internal citations omitted).
Moreover, “an accused in an extradition hearing has no right . . . to pose
questions of credibility as in an ordinary trial, but only to offer evidence which
explains or clarifies that proof.” Eain v. Wilkes, 641 F.2d 504, 511 (7th Cir. 1981)
Díaz has also supposedly misrepresented the testimony of Francisco
Sanchez Cardenas.
21

66

(citing Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir. 1973)); see also Austin v.
Healey, 5 F.3d 598, 605 (2d Cir. 1993) (stating that respondent’s challenge to “the
reliability and credibility of the evidence is misdirected”); Rodriguez Ortiz, 444 F.
Supp. 2d at 891–93 (holding that the issue of inconsistencies in witness statements
are “properly reserved for the eventual trial in Mexico”); Matter of Extradition of
Solis, 402 F. Supp. 2d 1128, 1131 (C.D. Cal. 2005) (holding that respondent could
not challenge the veracity or validity of a witness’s statement because “a fugitive in
international extradition proceedings is not permitted to introduce evidence that
contradicts the evidence submitted by the requesting country”); United States v.
Peterka, 307 F. Supp. 2d 1344, 1349 (M.D. Fla. 2003) (at an extradition hearing,
“the court shall exclude evidence that is proffered to . . . challenge the credibility of
witnesses”); Matter of Extradition of Mainero, 990 F. Supp. 1208, 1218 (S.D. Cal.
1997) (“Evidence that conflicts with that submitted on behalf of the demanding
party is not permitted, nor is impeachment of the credibility of the demanding
country's witnesses.”). “To do otherwise would convert the extradition into a fullscale trial, which it is not to be.” Eain, 641 F.2d at 511.
Here, Díaz’s purported inconsistencies and lack of credibility may surely be a
weakness in Panama’s case against Pres. Martinelli, but those possible deficiencies
do not obliterate all evidence of probable cause.22

“When analyzing all of the

Although Pres. Martinelli disputes that the MLM equipment was
capable of intercepting information from cell phones, Díaz has offered evidence that
he believes establishes that it did have such capabilities. Second Supp. Aff. of Harry
Díaz, Exh. B, ¶¶8-12 (describing messages intercepted from Blackberry messenger
and recorded phone conversations); Supp. Aff. of Harry Díaz, ¶¶24-25 (describing
22

67

evidence provided in support of probable cause, including the witness statements,
the Court must apply a ‘totality of the circumstances analysis and make a practical,
common sense decision whether, given all the circumstances, there is a fair
probability that the defendant committed the crime.”’

Matter of Extradition of

Garcia, 825 F. Supp. 2d 810, 838 (S.D. Tex. 2011) (citing Rodriguez Ortiz, 444 F.
Supp. 2d at 884).

By employing that standard here, we do not pretend that there

are no inconsistencies or doubts on how the MLM equipment was used and by
whom, including information on the equipment’s technical specifications. Yet, there
remains an indicia of reliability in this record that Pres. Martinelli may have
committed the charged offenses given all of the evidence presented. And, in any
event, Panama is not required to provide “an air-tight narrative of the events
surrounding a crime,” because it “is not a precondition for granting extradition.”
Rodriguez Ortiz, 444 F. Supp. 2d at 891–93.
As such, we find that Pres. Martinelli’s accusations – that Díaz is a consistent
liar and therefore a primary participant in the violation of Pres. Martinelli’s due
process rights – is not enough to obliterate probable cause.23 See Shaw, 2015 WL
3442022, at *8 (“Defendant has consistently attempted to contradict the case

messages intercepted from Blackberry messenger and WhatsApp); see also, e.g.,
Statement by Julio Martinez, Exh. 7 (RAMB001953) (describing how in September
2010, prior to the installation of the NSO equipment, the witness was given a CD
from Ronny Rodriguez containing a telephone interception of a call between
politician Mitchel Doens and another person who were discussing a protest
happening in Bocas del Toro).
Pres. Martinelli is certainly entitled to challenge Díaz’s credibility or
reliability before the Court in Panama.
23

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brought against him in Thailand. He has continually sought to turn this limited
extradition proceeding into a full trial in an effort to prove his asserted innocence.
This the Defendant cannot do.”); Garcia, 825 F. Supp. 2d at 839 (“The Court finds
that the witnesses’ statements, while subject to impeachment due to some
inconsistencies, are sufficiently reliable to provide the requisite ‘any evidence’
establishing probable cause to believe that Respondent committed the charged
crime.”); Bovio, 989 F.2d at 259 (“[I]ssues of credibility are to be determined at trial)
(citation omitted).
As for Pres. Martinelli’s allegations of corruption in Panama, we are “bound
by the existence of an extradition treaty to assume that the trial will be fair.”
Glucksman, 221 U.S. at 512. This means that a claim of corruption in a foreign
proceeding is not a valid defense to a finding of extraditability. See, e.g., Matter of
Extradition of Cruz, 2016 WL 6248184, at *6 (N.D. Ill. Oct. 26, 2016) (disregarding
fugitive’s argument that “he will not receive a fair trial in Mexico due to
corruption that he says exists in the Mexican judiciary” because “[t]he Secretary of
State decides whether Cruz Montes should be extradited,” and “[t]he Court
expresses no opinion as to Cruz Montes’s concern that he will not receive a fair
trial in Mexico.”); Matter of Extradition of Knotek, 2016 WL 4726537, at *5 (C.D.
Cal. Sept. 8, 2016) (disregarding fugitive’s argument that the foreign prosecution
was “tainted by corruption,” and noting that “[p]ursuant to the rule of non-inquiry,
challenges to the legal processes and penal systems of a foreign country— such as a
claim that a foreign country’s legal proceedings are corrupt—cannot be considered

69

by extradition courts”) (citing Matter of Extradition of Singh, 2005 WL 3030819, at
*65 (E.D. Cal. Nov. 9, 2005) (“The rule [of non-inquiry] requires that extradition
courts not undertake inquiries into the justice system of foreign countries . . . .”);
Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997) (“[U]nder what is called
the ‘rule of non-inquiry’ in extradition law, courts in this country refrain from
examining the penal systems of requesting nations . . . .”); Matter of Requested
Extradition of Smyth, 61 F.3d 711, 714 (9th Cir. 1995) (“Undergirding [the rule of
non-inquiry] is the notion that courts are ill-equipped . . . and ill-advised . . . to
make inquiries into and pronouncements about the workings of foreign countries’
justice systems.”)); Ntakirutimana v. Reno, 184 F.3d 419, 430 (5th Cir. 1999)
(refusing to consider fugitive’s claim that the foreign tribunal was unable to
protect his due process rights).
The rule of non-inquiry requires that any contention that the justice system
of the requesting state is corrupt must be addressed by the Secretary of State, and
not the federal courts. See, e.g., Hilton, 754 F.3d at 84-85 & 87 (rejecting fugitive’s
argument that “the rule of non-inquiry has no application here,” and stating that
the rule of non- inquiry “bars courts from evaluating the fairness and humaneness
of another country’s criminal justice system, requiring deference to the Executive
Branch on such matters”); Lopez-Smith, 121 F.3d at 1327 (“[U]nder what is called
the ‘rule of non-inquiry’ in extradition law, courts in this country refrain from
examining the penal systems of requesting nations, leaving to the Secretary of
State determinations of whether the defendant is likely to be treated humanely”);

70

Koskotas, 931 F.2d at 174 (“Extradition proceedings are grounded in principles of
international comity, which would be ill-served by requiring foreign governments
to submit their purposes and procedures to the scrutiny of United States courts.”);
Eain, 641 F.2d at 516-17 (discussing sole discretion of Secretary of State to
establish “an American position on the honesty and integrity of a requesting foreign
government”); Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir. 1976) (“It is not
the business of our courts to assume the responsibility for supervising the integrity
of the judicial system of another sovereign nation.”).
Indeed, a determination that a foreign judicial system is plagued by
corruption could have serious foreign relations implications. See United States v.
Fernandez-Pertierra, 523 F. Supp. 1135, 1141-42 (S.D. Fla. 1981) (citing Dames &
Moore v. Regan, 453 U.S. 654 (1981), and Haig v. Agee, 453 U.S. 280 (1981) (noting
that a “long judicial tradition” supports a “general judicial policy of deference to
the executive in the area of foreign relations”)). Considerations of the level of
corruption by the requesting state hence fall within the exclusive jurisdiction of
the Secretary of State.

This recognition comports with due process because

“[f]undamental principles in our American democracy limit the role of courts in
certain matters, out of deference to the powers allocated by the Constitution to the
President and to the Senate, particularly in the areas of foreign relations.” United
States v. Kin-Hong, 110 F.3d 103, 106 (1st Cir. 1997); see also Martin v. Warden,
Atlanta Pen., 993 F.2d 824, 830 n.10 (11th Cir. 1993) (noting the viability of the
rule of non-inquiry despite potential due process challenges).

71

The Court’s refusal to consider a claim of corruption is also appropriate
because “comity considerations lurk beneath the surface of all extradition cases,”
and courts “must take care to avoid ‘supervising the integrity of the judicial
system of another sovereign nation’ because doing so ‘would directly conflict with
the principle of comity upon which extradition is based.’” Martinez, 828 F.3d at
463-64 (quoting Jhirad v. Ferrandina, 536 F.2d 478, 484–85 (2d Cir. 1976)). This
is why, for example, an American citizen who commits a crime in Panama “cannot
complain if required to submit to such modes of trial . . . as the laws of that
country may prescribe for its own people.” Neely v. Henkel, 180 U.S. 109, 123
(1901). It is also why “[w]e are bound by the existence of an extradition treaty to
assume that the trial [that occurs after extradition is granted] will be fair.”
Glucksman, 221 U.S. at 512. This reflects the reality that political actors, such as
the Secretary of State, rather than judicial ones like Magistrate Judges, are best
equipped to make the “sensitive foreign policy judgments” that Panama’s request
demands. Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006); see also Sandhu v.
Burke, 2000 WL 191707, at *11-12 (S.D.N.Y. Feb. 10, 2000) (finding that
extradition magistrate’s refusal to consider evidence of corruption in India that
had allegedly resulted in the charging of individuals with crimes they had not
committed, including a former judge’s conclusion that “‘almost 90% percent of the
criminal cases launched against Sikh Youth were fabricated and trumped-up,’ and
that [the fugitives] were implicated in one of those ‘false cases’” did not violate due
process).

Therefore, we find that Pres. Martinelli’s repeated allegations of

72

corruption in Panama present no obstacle to this Court’s certification of
extradition.
4. The Embezzlement Charges
Pres. Martinelli’s next argument is that the evidence presented lacks
probable cause to support the embezzlement charges in Panama. Specifically, Pres.
Martinelli contends that the Government’s case with respect to the MLM equipment
is a red herring. First, Pres. Martinelli argues that the last time that the MLM
equipment was used or even seen was in 2011, before the relevant time period.
Second, the MLM equipment was purportedly incapable of carrying out the kind of
misuse and misappropriation that Panama has charged here, which is the unlawful
use of surveillance to infiltrate cellular phones. Third, Pres. Martinelli believes
that the Government has not even tried to prove that the MLM equipment was used
unlawfully. The Government apparently did not, for example, seek confirmation
that the National Security Council lacked judicial authorization to infiltrate certain
computers. Rather, the Government purportedly focused solely on establishing the
unlawful infiltration of cellular phones by requesting a letter from the clerk of court
that confirmed that no judge had authorized anyone to wiretap certain phone
numbers.

And fourth, the Government’s own investigation regarding the MLM

equipment has allegedly resulted in prosecutors acknowledging that there was

73

insufficient evidence that Pres. Martinelli’s subordinates embezzled the MLM
equipment.24
As for the embezzlement charges in connection with the Pegasus equipment,
Pres. Martinelli suggests that there are two fundamental obstacles to the
Government’s ability to establish probable cause. First, under Panamanian law, a
defendant allegedly must have custody over the embezzled asset.

[D.E. 58-6,

Moreno Decl. (stating that a public servant “has to have under his authority or
duties the administration, receipt, custody or responsibility of government assets”)].
Pres. Martinelli argues that the Government has not produced an audit from the
General Comptrollership of Panama establishing who had custody over the Pegasus
equipment. In fact, Díaz has purportedly not stated an intention to introduce this
type of document into evidence. Without the audit, Pres. Martinelli believes that it
cannot be established that the item belonged to Panama, what the damages may be,
and who is responsible for the property under Panamanian law. In sum, Pres.
Martinelli argues that he cannot be charged with the crime of embezzlement for

Pres. Martinelli points out that neither Rodriguez nor Pitti have had
criminal charges brought against them, and that this demonstrates that the
Government lacks probable cause in this case. But, it is by no means certain that
the alleged deficiency in those cases is similarly a deficiency in the case against
Pres. Martinelli. As the Eleventh Circuit has stated, consistent verdicts are not
required for co-conspirators tried jointly because a conviction may be upheld “even
where all but one of the charged conspirators are acquitted.” United States v.
Andrews, 850 F.2d 1557, 1561 (11th Cir. 1988); see also United States v. Issa, 265 F.
App’x 801, 808-09 (11th Cir. 2008) (affirming a conspiracy conviction where one
other co-defendant was acquitted). Therefore, we find that this argument has no
merit.
24

74

equipment for which he was not responsible and where it has not been proven that
it belonged to the Panamanian state.
Pres. Martinelli next contends that Panama cannot establish probable cause
that he embezzled the Pegasus equipment with public funds, as charged in the
indictment.25

In his affidavit, Pitti contrasted a printer with the Pegasus

equipment by observing that the printer, unlike the Pegasus equipment, “could not
be removed because it [unlike the Pegasus equipment] was included in the
[government] inventory and paid for out of the NSC budget.” [D.E. 18-2]. Yet,
when the current head of the National Security Council, Rolando López, filed a
criminal complaint regarding the alleged embezzlement of this equipment, Pres.
Martinelli stated that López offered no evidence that public funds were used.26
[D.E. 54-3]. Instead, López suggested that a private company paid for the Pegasus
equipment. Id. Therefore, unlike the many pages of evidence offered to prove that

Pres. Martinelli accuses the Government of changing its position in the
middle of these extradition proceedings because Díaz charged Pres. Martinelli with
a specific kind of embezzlement, namely an embezzlement of property “derived from
the State or public funds.” [D.E. 49-25]. As such, the Government is now allegedly
attempting to establish probable cause that Pres. Martinelli embezzled another
piece of equipment that was not bought with public funds and that this
inconsistency is fatal to Panama’s probable cause argument.
25

The criminal complaint contains a quotation attributed to a news
report by La Prensa that “‘[a] company [Caribbean Holdings] linked to Aaron
Mizrachi, brother-in-law of former president Ricardo Martinelli, paid the Israeli
company NSO Group to purchase a sophisticated espionage equipment acquired by
the last administration, which had disappeared . . . .’” [D.E. 54-3]. Yet, this
evidence is hardly persuasive, and likely inadmissible in this extradition
proceeding, because it merely contradicts the evidence submitted by Panama.
26

75

public funds were used to purchase the MLM equipment, Panama has apparently
not produced any evidence for the embezzlement of the Pegasus equipment.
Yet, we find that there is sufficient evidence in the record to establish
probable cause that Pres. Martinelli committed both embezzlement offenses. The
MLM audit establishes that the MLM equipment belonged to the Government of
Panama and has since disappeared, and this fact, coupled with the circumstantial
eivdence that the property was in Pres. Martinelli’s control and that he ordered that
it be taken from the Government of Panama, establishes probable cause that Pres.
Martinelli committed embezzlement by theft in violation of Article 338 of the
Criminal Code.27

There is also sufficient evidence to suggest that the relevant

equipment was used to conduct surveillance without judicial authorization, which
together with the other evidence submitted by Panama, establishes probable cause
that Pres. Martinelli committed embezzlement of use in violation of Article 341 of
the Criminal Code.28
Therefore, even if we accept Pres. Martinelli’s arguments, there is still
probable cause of embezzlement by theft involving one surveillance system, and

Article 338 of the Criminal Code of Panama (embezzlement by theft
and misappropriation) provides: “A public officer who takes or embezzles in any
way, or consents that somebody else appropriates, takes or embezzles any form of
money, securities or property which administration, collection or custody have been
entrusted by virtue of his position, shall be punished . . . .” (RAMB 000031).
27

Article 341 of the same code (embezzlement of use) provides: “A public
officer who, for purposes other than service, uses in his own or another’s benefit, or
allows somebody else to use money, securities or property under his charge by
reasons of his duties or which are in his custody, shall be punished . . . .” (RAMB
000032).
28

76

probable cause of embezzlement of use involving the other.

And together, this

provides enough evidence “sufficient to sustain the charge,” as required under the
extradition statute. See 18 U.S.C. § 3184.
Furthermore, to commit a violation of Article 338 of the Criminal Code of
Panama, a public officer must have been “entrusted” by virtue of his position with
the “administration, collection or custody” of property (RAMB000031), and to
commit a violation of Article 341 of the Criminal Code of Panama, the property at
issue must be “under [the public officer’s] charge by reason of his duties” or “in his
custody” (RAMB000032). Contrary to Pres. Martinelli’s argument, nothing in either
statute appears to create a requirement that the embezzled property must have
been purchased with public funds. In fact, Díaz states in his supplemental affidavit
that “it is not relevant for the purpose of committing Embezzlement by theft or use
that the money, assets or goods are owned by the State or have been acquired with
public funds.” Second Supp. Aff. of Harry Díaz, Exh. B, ¶20.
Notwithstanding the evidence submitted in support of the finding that public
funds are not required to commit embezzlement, Panama’s evidence suggests that
both the MLM and the Pegasus equipment were purchased with public funds.
Specifically, documents indicate that Panama paid MLM $13,475,000 for its system.
See Audit Report Summary, Exh. 3 at 684 (RAMB000692); see also, e.g., Request of
Banking Transfer, Exh. 4 at 1272 (RAMB001229) (showing December 10, 2010
transfer of approximately USD $5.4 million as partial payment to MLM from the
Ministry of the Presidential Office – Social Investment Fund); Request of Banking

77

Transfer, Exh. 5 at 1277 (RAMB001237) (showing August 10, 2010 transfer of
approximately USD $3.3 million).
As for the Pegasus equipment, a purchase agreement signed by the Director
of the NSC, dated July 3, 2012, required that “the End User [the NSC] shall pay the
Company [NSO] an aggregate amount of $US 6,000,000 [plus applicable taxes,
tariffs, duties, and surcharges].” See Agreement Between NSO and the NSC, Exh. 2
at 609 (RAMB000616).

And NSO later certified that it received $8,000,000

pursuant to that agreement. See Letter from NSO to Government of Panama, Exh.
2 at 607, (RAMB000614) (stating that NSO had “installed the Pegasus System
[pursuant to a purchase agreement signed by the Director of the NSC] in Panama
City after receiving money transfer of 8 million American Dollars, the first stage was
6 million American Dollars and the second stage was additional 2 million American
Dollars”).
The evidence further suggests that the relevant equipment was within the
custody of Pres. Martinelli because both sets of equipment were installed in the
NSC’s Special Services office in Building 150. See, e.g., Statement of Elvys Moreno
Murillo, Exh. 7 at 1855 (RAMB001817) (stating that “the [MLM] laptops were
placed, printers, servers that were located on a black rack at a corner in the office
[in Building 150]”); Pitti Aff. ¶ 8 (discussing installation by NSO personnel of
surveillance equipment in Building 150).

Thus, it appears that both sets of

equipment were intended to be used by the NSC. See NSO’s End Use/User
Certificate, Exh. 2 at 614 (RAMB000621) (providing that NSO equipment was “for

78

the exclusive use of Panama’s government”); Agreement Between NSO and the
NSC, Exh. 2 at 609 (RAMB000616) (providing that the NSC was the end user of the
NSO equipment); Statement of Carlos Antonio Orillac Arias, Exh. 8 at 2176
(RAMB002141) (indicating that the Director of the NSC signed the Final
Acceptance Letter for the MLM equipment); Resolution No. 24-2015-DAF, Exh. 3 at
829 (RAMB000777) (noting that the “destination” of the MLM equipment was the
NSC).
Pres. Martinelli allegedly controlled the NSC and conducted the surveillance
conducted by the Special Services unit. And Díaz has stated that, to be guilty of
embezzlement, pursuant to Article 43 of the Criminal Code, a defendant is culpable
if he “‘performs, by himself or by proxy, the conduct described in the criminal
conduct,’ that is, the offense.”29 Second Supp. Aff. of Harry Díaz, Exh. B, ¶29.
Therefore, an individual may commit embezzlement “by proxy,” i.e., by directing
another individual who has actual custody over certain property to embezzle it. Id.
¶¶ 29-31. Because Panama alleges that Pres. Martinelli committed embezzlement
by proxy, and after analyzing the evidence in the record supporting that charge, we
find that there is sufficient probable cause to warrant extradition.

Díaz also states that a comptroller audit is not required to prove a
violation of Article 338 or Article 341 in Panama; rather, other evidence may be used
to demonstrate the defendant’s custody of the property at issue. See Second Supp.
Aff. of Harry Díaz, Exh. B, ¶¶ 35-39. As such, the fact that Pres. Martinelli’s name
does not appear in the audit of the MLM equipment conducted by the General
Comptrollership of Panama, and that no such audit was conducted for the NSO
equipment, does not weaken a finding of probable cause.
29

79

Moreover, the evidence suggests that Pres. Martinelli “t[ook] or embezzle[d]”
the MLM and Pegasus equipment, as required under Article 338 of the Criminal
Code. The MLM Audit report confirms that the MLM equipment disappeared. See
May 4, 2015 Audit Report No. 03-003-2015-DIAF, Exh. 3 at 720-21 (RAMB000728729). The MLM equipment included “servers that were located on a black rack,”
Statement of Elvys Moreno Murillo, Exh. 7 at 1855 (RAMB001817), which multiple
witnesses said was removed following the May 2014 elections and taken to Super
99, see, e.g., Statement of Javier Antonio Quiroz Andreve, Exh. 7 at 1916-17
(RAMB0001878-1879); Statement of Jubilo Antonio Graell de Gracia, Exh. 7 at
1941-1942 (RAMB001905-1906); see also Pitti Aff. ¶ 47 (describing removal of the
rack); Interview of Jubilo Antonio Graell, Exh. 7 at 1963 (RAMB001932) (describing
the rack as “lost”).
Specifically for the Pegasus equipment, witnesses testified that it was
removed from Building 150. See Pitti Aff. ¶ 46; Interview of Jubilo Antonio Graell,
Exh. 7 at 1975 (RAMB001944) (discussing removal of desktops).

And although

some witnesses testified that the equipment was moved to a different government
building, this does not weaken the alleged embezzlement offense because the
evidence indicates that Panama never recovered the equipment. See Letter from
NSO to Government of Panama, Exh. 2 at 607 (RAMB000614) (certifying that
the last date of communication from its system in Panama was May 16, 2014).
Finally, both sets of equipment satisfy the “use” requirement of Article 341 of
the Criminal Code. In regard to the Pegasus equipment, the evidence demonstrates

80

it was used to intercept the communications of numerous individuals during the
relevant time period. [D.E. 46]. As for the MLM equipment, there is a plethora of
circumstantial evidence that supports the same conclusion. For example, there was
a contract that had a four-year term beginning in 2010. Contract No. 045/2010,
Exh. 4 (RAMB001200) (“The term of duration of this Contract shall be for a
maximum period of four (4) years.”).30 It seems reasonable to infer that the MLM
equipment, which cost millions of dollars to purchase, continued to be used for the
duration of the contract through 2014, absent any indication to the contrary.31
Regardless, additional evidence from several witnesses suggests that the
MLM equipment was used to intercept their communications in 2012. See Supp.
Aff. of Harry Díaz , DE 46-1, ¶¶24-25 (describing intercepted communications from
early 2012); Statement of Gustavo Pérez, Exh. 8 at 2280 (RAMB002245); Pitti Aff.
¶¶21, 29 & 43; Statement of Rosendo Enrique Rivera Botello, Exh. 8 at 2469-70
(RAMB002435-36); Statement of Mitchell Constantino Doens Ambrosio, Exh. 8 at
2429 (RAMB002394); Statement of Erasmo Pinilla Castillero, Exh. 9 at 2577-79
The evidence suggests that the MLM equipment was also used prior to
2012.
See, e.g., Statement of Elvys Moreno Murillo, Exh. 7 at 1852-55
(RAMB001814-1817).
30

The NSC did not execute its contract for the Pegasus equipment, and
the related End Use/User Certificate, until July 3, 2012. See Agreement Between
NSO and the NSC, Exh. 2 at 609 (RAMB000616); NSO’s End Use/User Certificate,
Exh. 2 at 615 (RAMB000622). According to Pitti, in order for the Pegasus
equipment to operate, fifteen-megabyte broadband internet service had to be
installed, Pitti Aff. ¶ 7; and the internet service was not installed until June 1, 2012,
see id. (describing that internet service was obtained from “Liberty Technology”);
Liberty Technologies Contract of Services dated June 1, 2012 (RAMB000278). As
such, this constitutes additional circumstantial evidence that that MLM equipment
was, in fact, used in 2012.
31

81

(RAMB002545-47).

For instance, Díaz points out that Ronny Rodriguez was

emailed some of the communications well before the June 2012 installation of the
fifteen-megabyte broadband service necessary to power the Pegasus system. See
Second Supp. Aff. of Harry Diaz, Exh. B, ¶¶ 8-12. And although Pres. Martinelli
contends that these types of communications could have been easily captured afterthe-fact using the Pegasus equipment, the evidence suggests that only the MLM
equipment could have been used to allow Pres. Martinelli to receive daily
summaries of intercepted information and to be able to react in real time. This is
particularly true because the Pegasus equipment was likely not yet operational.
Therefore, there is sufficient circumstantial evidence in the record to find probable
cause that the Pres. Martinelli embezzled the MLM and Pegasus equipment.
Finally, we reiterate that “competent evidence to establish reasonable
grounds is not necessarily evidence competent to convict.” Fernandez, 268 U.S. at
312. Given the holes in the case, it is certainly plausible that Panama’s charges will
be dismissed or rejected at trial in Panama. As is often the case, allegations of
public corruption are difficult to prove for many reasons, not the least of which is
the claim of a political “witch hunt” that is not unique to Panama. But those claims
and defenses are properly presented to the court of law that has jurisdiction over
the dispute. In this case, that lies in Panama.
5. The Surveillance Charges
Pres. Martinelli’s final argument is that Panama cannot establish probable
cause to support the surveillance charges because of the tenuous link between the

82

purported crimes and Pitti’s affidavit, which should allegedly be discredited.
Alternatively, even if we were to accept all of Panama’s evidence, Pres. Martinelli
contends that there is no evidence that he knew that the National Security Council
had not obtained the requisite judicial authorizations for the alleged wiretapping.
Because both of these deficiencies are purportedly fatal, Pres. Martinelli surmises
that we should find that there is no probable cause to support the Government’s
extradition request in connection with these alleged surveillance crimes.
In particular, Pres. Martinelli first argues that Panama’s case hinges on
whether he ordered members of his National Security Council to conduct unlawful
wiretapping.

Pitti allegedly remains the only witness who testified that Pres.

Martinelli through Ronny Rodríguez, selected the targets, ordered the wiretapping,
and received the illicit results from the surveillance. And while the Government
has purportedly tried to corroborate Pitti’s testimony, Pres. Martinelli believes that
there is not a single argument that substantiates a key allegation – namely, that
Pres. Martinelli ordered members of the National Security Council to conduct
unlawful surveillance. For example, Pres. Martinelli contends that Panama has
discussed the alleged 2010 wiretapping of a person named Mitchell Constantino
Doens Abrosio. The wiretapping supposedly captured a conversation that Doens
had about events involving the Ngabe Bugle tribe. Yet, Pres. Martinelli believes
that the wiretapping did not occur during the charged time period (2012 to 2014)
and pre-dated both the MLM equipment and the Pegasus equipment. As such,

83

there is allegedly no evidence that President Martinelli directed this alleged
wiretapping or that it was unauthorized.
In Pres. Martinelli’s view, the Pitti affidavit is the only glue that establishes
Panama’s argument for probable cause, but the Court should supposedly not credit
Pitti’s affidavit for several reasons. As one primary example, in his affidavit Pitti
purportedly attempts to suggest that he was present and participated in the alleged
removal of computer equipment and the so-called “rack” from the National Security
Council. See Pitti Aff. at ¶¶46-47 [D.E. 18-2]. Yet, according to multiple witnesses,
Pitti had already been transferred to a different province. See Testimony of Júbilo
Antonio Graell de Gracia, RAMB001934-1947, at RAMB001944 (Aug. 25, 2015)
[D.E. 49-21, *12 (noting that, at the time he and others moved the equipment,
“Ismael (Brad) has [sic] already been transferred to Chiriqui”)]; Testimony of Julio
Palacios Martínez, RAMB001960-72 at RAMB01970 (Aug. 27, 2015) [D.E. 49-22,
*12 (same)]; Testimony of Vildia del Carmen Torres Potes, RAMB002045-2057, at
RAMB002051 (Sept. 1, 2015) [D.E. 49-24, *8 (same)]. Accordingly, Pres. Martinelli
concludes that Panama’s own evidence contradicts Pitti’s affidavit, and that Pitti’s
affidavit is both inherently reliable and contains unsourced allegations.
Pres. Martinelli equates Pitti’s affidavit to the same scenario at issue in In re
Mazur, 2007 WL 2122401 (N.D. Ill. July 2, 2007), where a foreign country’s case
depended on a witness whose testimony was inconsistent on key details and
contradicted by other witnesses. Pres. Martinelli claims that the court found an
absence of probable cause because the foreign country’s evidence “though seemingly

84

damning on its face, on close scrutiny, turned out to be so internally inconsistent, so
patently unreliable, that it obliterated, all on its own, any semblance of probable
cause.” Id. Like In re Mazur, we should find that Pitti’s testimony is riddled with
material inconsistencies, falsehoods, and unsourced and unreliable allegations.
Therefore, Pres. Martinelli urges the Court to not credit Pitti’s testimony and find
that the surveillance charges lack probable cause.
Second, Pres. Martinelli argues that, even if the Court credits all of Panama’s
evidence, there is still an absence of sufficient evidence regarding a key element on
whether Pres. Martinelli knew that the alleged wiretapping was done without
judicial authorization. Under Panamanian law, Pres. Martinelli contends that the
requisite level of intent requires something akin to specific intent or a knowing
violation for the alleged surveillance crimes. See Roberto J. Moreno’s Decl. (Aug.
11, 2017) (“[C]riminal intent, in other words personal behavior plus the subjective
knowledge that the act carried out is unlawful”); see also, Díaz Indictment at
RAMB000073 [D.E. 49-25, *3 (alleging that the “officers of the National Security
Council . . . were fully aware of the illegality of these [surveillance] activities”)].
The Government has purportedly not established probable cause regarding
this critical element. See Moreno Decl. (“[I]f only one element is missing . . . the
crime cannot be consummated”). In fact, the Government has allegedly highlighted
some evidence that indicates that President Martinelli would have had no reason to
suspect that the National Security Council members were not getting the requisite
judicial authorizations.

For instance, in the addendum on probable cause, the

85

Government

supposedly

notes

that

Rodríguez

delivered

lawfully

obtained

surveillance results to President Martinelli at the same time as the purported
unlawfully obtained surveillance results. See Summary Chart For Probable Cause
[D.E. 46-4]; Pitti Aff. at ¶ 26 [D.E. 18-2]. These results were apparently presented
in the same envelope. Id. And the Government has allegedly offered no evidence
that would allow this Court to distinguish between President Martinelli’s
involvement in legal wiretapping with his purported involvement in illegal
wiretapping.
Therefore, Pres. Martinelli contends that the Government cannot ask this
Court to draw any inferences regarding President Martinelli’s knowledge of
illegality. In sum, “[t]he basic problem with the government’s case is that it ignores
the intent element.” In re Petition of France for the Extradition of Sauvage, 819 F.
Supp. 896, 904 (S.D. Cal. 1993).
After conducting our own objective review of the evidence, we find to the
contrary on both points. First, the Government has shown that knowledge is not an
element of wiretapping offenses under Panamanian law. See Second Supp. Aff. of
Harry Díaz, Exhibit B, ¶18 (stating that “the prosecution does not have to prove
that Mr. Martinelli Berrocal had no knowledge that the activities that were
reported to him were executed without judicial authorization”).

While Pres.

Martinelli believes that this interpretation is wrong, we decline the opportunity to
opine on the complexities of Panamanian privacy law. In the face of competing

86

interpretations of foreign law, we defer to the State Department and Panama, as we
have no basis to credit Moreno’s declaration over Díaz’s.
“In other words, the type of conclusion which [Pres. Martinelli] asks this
Court to make here would require a weighing of evidence and a selection of one
version over another version,” but “[t]his type of evidence evaluation is precisely
what this Court cannot do in an extradition hearing.” In re Extradition of NunezGarrido, 829 F. Supp. 2d at 1294 (citing Bovio, 989 F.2d at 259–261 (evaluating
accused’s challenge to extradition request from Sweden, rejecting his challenge that
the investigator’s statements were made five years after the investigation and that
there was no record of original witness interviews and concluding that the
defendant “has no right to attack the credibility” of either of the two witnesses “at
this stage of the proceedings” because “issues of credibility are to be determined at
trial”)); see also Barapind v. Enomoto, 400 F.3d 744, 750 (9th Cir. 2005)
(“[E]xtradition courts do not weigh conflicting evidence in making their probable
cause determinations”) (citation and quotation marks omitted).
Second, we do not find that Pitti’s affidavit is so patently unreliable that it
obliterates a finding of probable cause.32 To the contrary, Pitti’s affidavit appears to

Pres. Martinelli’s reliance on In re Mazur is also unpersuasive because
the issue in that case was whether abstracts from fourteen separate statements
contained multiple material inconsistencies (including who participated in a
meeting held to plan a murder, whether there was any subsequent meeting, and
who ultimately hired the hit man), all of which were given by one witness who later
admitted that he had lied under oath and had fabricated at least part of his story.
See In re Mazur, 2007 WL 2122401, at *20-22 (finding that the statements
contained “so many inconsistencies that it is difficult to image that the government
32

87

be corroborated by other evidence in the record.

For example, Ortiz Gonzalez

testified that “Ronny said that he reported directly to the President Ricardo
Martinelli,” and that Ronny “met privately with Ricardo Martinelli and he was
receiving instructions directly from Mr. President.” Id. (RAMB001793). Similarly,
an Intelligence Officer for the NSC, Jubilo Antonio Graell, avers that Ronny
instructed him on several occasions to conduct surveillance on certain individuals,
and that “Ronny told us that that information is needed by number one (1) [whom
Graell made clear] is the President of the Republic. See Interview of Jubilo Antonio
Graell, Exh. 7 at 1978-79 & 1982 (RAMB001942-1943 &-1946). The surveillance
was conducted solely by the NSC, over which Martinelli Berrocal had effective
control. [D.E. 46, at 3-4].
We also find Pres. Martinelli’s challenge unpersuasive because any
inconsistencies between Pitti’s affidavit and other evidence submitted by Panama is
not enough to bar Pres. Martinelli’s extradition. For instance, a failure by Pitti to
source all of his allegations, and a reliance on hearsay or uncorroborated evidence,
is insufficient to defeat probable cause. With respect to the argument that Pitti
should have sourced allegations, we find no authority for the this requirement,
especially in light of the principle that a ““country seeking extradition is not
required to produce all its evidence at an extradition hearing,” and that a full trial
and determination of guilt will occur in the requesting country. Quinn, 783 F.2d at
815.
that they could give rise to probable cause”). When compared to the facts of this
case, In re Mazur is noticeably distinguishable.
88

As touched upon earlier, numerous courts have found that probable cause
exists despite allegations of inconsistencies in the evidence submitted by the
requesting country.

The reason inconsistencies do not regularly defeat an

extradition request is because courts “must accept as true all of the statements and
offers of proof by the demanding state,” reserving the weighing of evidence and
making of credibility determinations for the courts in the requesting country—
which is where the determination of guilt will be made. Schmeer v. Warden of
Santa Rosa Cty. Jail, 2014 WL 5430310, at *4 (N.D. Fla. Oct. 22, 2014) (citation and
internal quotation marks omitted); see also, e.g., Collins, 259 U.S. at 316; Quinn,
783 F.2d at 791; Ahmad, 726 F. Supp. at 399-400 (“The primary source of evidence
for the probable cause determination is the extradition request, and any evidence
submitted in it is deemed truthful for purposes of this determination.”) (quotation
omitted). Therefore, we find that probable cause exists even when the requesting
country’s documents contain inconsistencies and discrepancies because this fact is
“of no consequence if there exists in those documents ‘any’ other sufficient
competent evidence” to establish probable cause. United States ex rel. Sakaguchi v.
Kaulukukui, 520 F.2d 726, 728 (9th Cir. 1975).
Furthermore, a court may fairly infer sources of information by reference to
the language of an affidavit. See, e.g., United States v. Summage, 481 F.3d 1075,
1077-78 (8th Cir. 2007) (finding that a reference in an affidavit to was sufficient to
infer the source of information); United States v. Colbert, 605 F.3d 573, 576 (8th Cir.
2010) (even though affidavit was not explicit about the source of information, it

89

“supported a fair inference that the police officers were the source”). In the case of
Pitti’s affidavit, the Court may infer that Pitti is offering information based upon
his personal knowledge or from his conversations from others such as Ronny
Rodriguez. Accordingly, any lack of explicit sourcing does not prevent this Court
from relying upon Pitti’s affidavit.
The Seventh Circuit’s decision in Bovio v. United States is also instructive
because the extradition judge in that case found that probable cause existed based
solely upon the affidavit of a Swedish investigator.

See Bovio, 989 F.2d at 258.

The extraditee contested the district court’s finding in the Seventh Circuit, and made
four arguments in support:
(1) [the investigator’s] statements do not indicate how he obtained the
information on which the statements are based, whether witnesses were
under oath, and whether there are any original notes or recordings of
witness interviews; (2) all the evidence implicating Bovio is hearsay; (3)
there is no physical evidence implicating Bovio; and (4) the major
witness relied upon by the Swedish government, Perttunen, has
admitted lying during the investigation, and there is otherwise no
corroboration of her account.
Id. at 259.

The Seventh Circuit rejected all of these arguments, noting that a

extraditee has “no right to attack the credibility” of witnesses in an extradition
hearing, as “issues of credibility are to be determined at trial,” and that “hearsay
testimony is often used in extradition hearings.” Id. at 259-60 (citing Collins, 259
U.S. at 317 and FED. R. CRIM. P. 5.1(a) (“The finding of probable cause [at a
preliminary examination] may be based upon hearsay evidence in whole or in
part.”). The same conclusion can be drawn here.

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As for Pres. Martinelli’s argument about the dangers of multiple hearsay,
courts have often relied on these statements in making probable cause findings and
have rejected challenges to the reliability of such evidence. See, e.g., Afanasjev, 418
F.3d at 1166 n.13 (upholding a probable cause finding based on hearsay; and
discussing Zanazanian v. United States, 729 F.2d 624, 625-27 (9th Cir. 1984), where
the Ninth Circuit rejected a extraditee’s argument that “multiple hearsay does not
constitute competent evidence”); Escobedo v. United States, 623 F.2d 1098, 1102 n.10
& 1103 (5th Cir. 1980) (upholding magistrate’s finding of probable cause, and
rejecting fugitive’s argument that evidence submitted by the requesting state
“constitutes compound hearsay and is untrustworthy”); Matter of Extradition of
Jarsosz, 800 F. Supp. 2d 935, 947 n.4 (N.D. Ill. 2011) (“In extradition cases, the
hearsay exists on at least two levels. First, is the statement of the absent declarant
who prepared and submits the witness summaries. The second level is comprised of
the hearsay statements of the witnesses to the prosecutor or police officer. There
can even be three or more levels of hearsay. For example, a witness may recount
statements made by another witness, which are then recounted to the declarant
who prepares the summaries used in the extradition hearing.”); Matter of
Extradition of Chan Hon-Ming, 2006 WL 3518239, at *8 (E.D.N.Y. Dec. 6, 2006)
(noting that “[i]t is well established that hearsay evidence, including multiple
hearsay and the unsworn statements of absent witnesses, is admissible at
extradition hearings and may support a finding of extraditability”); Matter of the
Extradition of Marzook, 924 F. Supp. 565, 592 (S.D.N.Y. 1996) (finding probable

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cause that fugitive committed crimes in Israel despite his argument that the
extradition complaint was based “purely upon multiple hearsay”).33
In sum, after careful review of the evidence in the record, we are duty bound
to find that the extradition request submitted by Panama satisfies all of the
statutory requirements of 18 U.S.C. § 3184 and that there is sufficient evidence to
establish probable cause for all of the charges brought against Pres. Martinelli. In
drawing this conclusion, we find only that there are reasonable grounds to suppose
him guilty of all or some of the offenses charged. As a result, “good faith to the
demanding government [in Panama] requires his surrender.” Glucksman, 221 U.S.
at 512.
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
the Government’s motion [D.E. 46] for an order certifying the extradition of Pres.
Martinelli is GRANTED and that a certified copy of this Order, together with a
copy of all the testimony and evidence taken before the undersigned, be forwarded
without delay by the Clerk of the Court to the Secretary of State to the attention of
the Office of the Legal Adviser. Pres. Martinelli shall be committed to the custody
of the United States Marshal for this District, to be held at the Federal Detention
Center, Miami, Florida, or another suitable facility, pending final disposition of this

We add that under U.S. law, there is also no rule that multiple hearsay
is “per se unreliable.” See, e.g., United States v. Crawford, 734 F.3d 339, 342 (4th
Cir. 2013). We should not hold Panama to a greater standard in the extradition
context.
33

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matter by the Secretary of State to the designated agents of the Government of
Panama.
For all other purposes, this action is now CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of
August, 2017.
EDWIN G. TORRES
United States Magistrate Judge

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