Second Circuit Holds That “Rule of Specialty” Objection Belongs to Nations, Not Defendants
Last week, in Barinas v. United States, the Second Circuit held that a defendant who is extradited to the United States to face charges, pursuant to agreement with the asylum nation, may not raise the objection that the prosecution exceeds the scope of the extradition agreement or that he is to be tried on charges other than those for which he is extradited. That objection, known as a “rule of specialty” objection, may be raised only by the asylum nation itself. The panel also held that when a defendant on supervised release becomes a fugitive, his supervised-release term is tolled during the period of fugitivity. The impact of this ruling is that a defendant who commits another crime while a fugitive from supervised release can be charged with a violation specification even if, at the time he committed the second crime, his term of supervised release otherwise would have ended.
In 1997, Barinas was convicted in the Eastern District of New York of conspiring to possess, with intent to distribute, crack cocaine. He was sentenced to time-served and a five-year term of supervised release.
He did not comply with the terms of his supervised release, and the court accordingly issued a warrant for his arrest. While that warrant was outstanding, he left the United States for the Dominican Republic, of which he is a citizen. He was still in the Dominican Republic when, in 2007, federal authorities learned that he was conspiring to ship cocaine into the United States. In 2008, he was indicted by a grand jury in the District of New Jersey on charges relating to that offense, and in 2009, the United States requested his extradition pursuant to a 1909 extradition treaty between the United States and the Dominican Republic. The Diplomatic Note requesting Barinas’s extradition referred only to the 2008 charges; it did not mention his 1997 conviction or violation of supervised release.
Barinas was extradited in 2013, and in 2015 he pleaded guilty to conspiring to import cocaine. In 2016, the E.D.N.Y. probation office filed a Supplemental Violation Report, noting that he had violated the terms of his 1997 supervised release by leaving the United States without permission and by going on to commit another crime. Barinas moved to dismiss the charges, arguing that the Government’s pursuit of charges not mentioned in the extradition treaty violated the “rule of specialty,” which generally provides that extradited defendants may be tried only for the offenses enumerated in the underlying extradition agreement and for which the defendant is extradited. The district court found that Barinas lacked standing to make that objection, found all three supervised-release charges established, and sentenced Barinas to one year and one day of imprisonment.
The Circuit Affirms
The Second Circuit, in an opinion written by Judge Kearse and joined by Judge Calabresi and Judge Cabranes, affirmed the district court’s rejection of Barinas’s rule-of-specialty objection. It concluded that the rule of specialty was “a privilege of the asylum state”—here, the Dominican Republic—rather than “a right accruing to the accused.” Accordingly, it found that although Barinas’s prosecution on the supervised-release charges had arguably violated the rule of specialty, only the Dominican Republic, and not Barinas himself, had the right to interpose that objection.
The panel also rejected Barinas’s further argument that the third supervised-release charge—that of violating his supervised release by committing another crime in 2007—was beyond the court’s authority, because his 1997 term of supervised release expired in 2002. In the context of a Circuit split, the panel adopted the majority rule that a defendant’s fugitive status tolls a term of supervised release, reasoning that the “mere lapse of time does not constitute service of sentence.” The panel also noted that applying Barinas’s proposed rule would run afoul of the “strong federal policy disfavoring fugitives,” which is manifest in, for example, a federal statute providing that a fugitive may not avail himself of a statute-of-limitations defense. Finally, the panel noted that the Second Circuit has held that a defendant’s parole is tolled during a period of fugitivity, and found that the same principle should apply to supervised release, a “cousin” of parole.
Superficially, the case bears the trappings of a minor decision: a defendant who dealt drugs, fled the country despite a lenient sentence, and was eventually tried on more serious narcotics charges. However, the rule of specialty holding in this case and in the circuit's prior decisions leading up to it—that the rights guaranteed by this rule belong to the country and not the defendant—will have an impact in future cases. There may be many times when an extraditing country chooses not to enforce its rights under an extradition agreement. This may occur because of a desire to curry favor with the United States government or because the extraditing country has no desire to help the defendant, who often has not made positive contributions in his home country. In a sense, a defendant can be viewed as a third-party beneficiary of the extradition agreement. As under contract law, individual defendants may invoke those agreements only if the intent of the treaty drafters was to permit private enforcement. As explained in certain recent decisions, this will happen infrequently. See also United States v. Garavito-Garcia, 827 F.3d 242, 246-47 (2d Cir. 2016). In light of this holding, it will be crucial for defense counsel to persuade the foreign government to invoke the extradition treaty.
Finally, it is somewhat disturbing that the government did not, on its own, follow the terms of the extradition treaty. Even in the absence of an objection by the other country, we should want our government to adhere to its treaty obligations, both because it is right and because we would hope that foreign countries honor their treaty obligations toward United States persons who may face prosecution or arrest in other countries. It may be that the departure from treaty adherence was occasioned here by the fact that the supervised release specification was minor compared to the more serious narcotics charge. Nevertheless, the rule laid down in this decision will apply whether the violation of the rule of specialty is minor or significant.