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Case number 15 as 3075, United States of America versus Nazir bin Abdelaziz Trebelci, also known as Nazir bin Abdelaziz Trebelci, also known as Abu Qaqa Appellant.

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Ms.

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Petrus for the appellant, Mr. Smith for the appellee.

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May it please the court, Mary Petrus on behalf of Nizar Trebelci.

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Good morning.

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I would like to reserve three minutes of my time for remarks.

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Mr. de Belce was charged in Belgium with the same offenses that are charged in the indictment here.

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The prosecution of the indictment violates the extradition treaty.

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The treaty prohibits extradition when a person sought has been found guilty, convicted, or acquitted for the same offenses as in the requested state.

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The record unequivocally demonstrates that Mr. Trebelci was charged with conspiracy, not just attempts, but conspiracy in Belgium, and that the district court erred when it distinguished the offenses based on this distinction.

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Let me ask a question.

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Let's suppose that the Belgian courts had interpreted the treaty and the facts here as as you're arguing.

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Let's suppose they said that double jeopardy is based on

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The same evidence and even if it's the block burger test, we find that it meets the block burger test and it's double jeopardy.

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But that the Minister of Justice said,

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I agree with that legal analysis, but as a matter of international comedy, I am going to allow the extradition to go forward and send Mr. Tribelsi to the United States for foreign relations purposes.

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Could we review that decision?

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Yes, if he's extradited based on the treaty.

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If he's not extradited based on the treaty, but the parties decide to forego the treaty and there's some other provision or some other way in which they get custody of Mr. Tbilisi,

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then he would not have the protections of the treaty.

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But he was brought here under the protections of the treaty.

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And once the treaty is used to extradite, then he gets all of the protections that are in there.

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And under the treaty, both parties have agreed mutually not to prosecute the same offenses.

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So under my hypothetical, we could review that decision?

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We could say that the Minister of Justice shouldn't have accommodated the United States?

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If the extradition takes place under the treaty, yes.

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But I guess there's another way of putting it is does Belgium have the authority to waive Article 5?

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I don't think that Belgium had

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If the means by which the person is being transferred from one state to another is the extradition treaty, then the parties that have signed off on that provision cannot just simply ignore it.

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Why not?

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If they say, we have this agreement, and we have required certain conditions, but in this instance, this condition is one we're going to waive.

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That would be no different than saying that there is a law that says people can't rob banks, but we're going to decide that these people can rob this bank.

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The treaty is the law like no other.

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So the United States can't waive its own laws, and the United States and Belgium can't

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Wave the law that they've agreed to which is the treaty and here Because the treaties been ratified and the treaty becomes the law of the United States, so it can't simply be ignored Can you direct us to it was my understanding?

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That signatories to a treaty actually could wave terms And I wonder if can you I mean you you've suggested that we'll

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One aspect of that is just that it becomes the law of the land, and so how could it be subject to waiver?

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But is there anything more specific on non-waiver in a circumstance like this?

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I would have to think about that because that issue was not raised by the government and because as a matter of fact, Mr. Torelli was brought here pursuant to the treaty, so he did come here with all of the protections that the treaty provides.

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We're just trying to explore our jurisdiction.

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What authority do we have?

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How much deference do we have authority to second-guess what

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Belgium did and so we're trying to understand the range of what Belgium might have been understanding itself to have done.

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I think that the court in this particular case

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The only issue is whether or not, because he was brought by the treaty, the only issue is whether or not the treaty was violated.

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And then does he have the protections of the treaty?

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The cases that the government has cited to suggest that the court should not enforce the treaty, that that's between the United States and Belgium, are cases that address different issues.

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And the government has criticized us because there's no issues that's sort of directly on point on the double jeopardy issue.

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But the cases sort of fall into two different categories.

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One set addressing the dual criminality question and one set addressing the doctrine of speciality.

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The double jeopardy issue is much closer to the doctrine of speciality issue than it is

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to the dual criminality question.

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Because the dual criminality question is a question of, can this person be extradited?

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And it's based solely on the law of the requested state.

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But the question of doctrine of speciality is, can this person be prosecuted like this?

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And the question is, does the treaty allow for this type of prosecution?

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And the issue is sort of the same for double jeopardy, because the issue is, can we prosecute this offense?

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And under the treaty the answer is no and I I do want to answer your questions with regard to jurisdiction But I did before I forget I wanted to get back to one point.

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I think it was raised by Judge Wilkins question We are not arguing for a same conduct Test we are we do recognize that the treaty provides for

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the same offenses cannot be prosecuted and that the basis of that test has to be looking at the elements of the offenses.

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All we're saying is that in the context of comparing international offenses, you can't look to a strict block burger element to element test and you can't completely ignore the underlying conduct.

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I think that it's true that you can't completely ignore the underlying conduct in any double jeopardy issue.

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Because, for example, if a person is charged with murder in Belgium and murder in the United States, you always have to look to whether or not they're charged with the same underlying conduct, the same exact murder.

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In the international context, to use the blockbuster test and use elements that the government has attempted to use to distinguish these offenses, such as the connection to the U.S.

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persons and property as compared to the Belgian charge focusing on persons in general, doesn't make sense because that would distinguish every offense.

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The same is true with regard to the designation of the organization as a terrorist organization being the element in the United States and the element in Belgium being an association formed to attack people or property.

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But Ms.

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Petras, what about the element that United States law requires, which is that the organization be a foreign terrorist organization, not its designation per se by the United States, but that the kind of terrorism that the United States law is focusing on is

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is foreign terrorism and in Belgium it's not at all limited in that way.

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But to distinguish the associations or the element of the offenses on that basis is just a matter of terminology.

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Belgium is calling Al-Qaeda, in this case, an organization formed for the purpose of attacking people and property, whereas the United States is designating it as a foreign terrorist organization.

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I think when you're comparing elements of an international offense, the issue is whether or not they were

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prosecuting the same entity?

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Well, prosecuting the same offense.

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And one is about foreign terrorist organizations, and the other is about associations or gangs.

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And to the extent that they overlap but have each areas of non-overlap, isn't that what we're looking for in applying the Black Burger analysis?

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I don't think that that's the case, because the fact that the Belgian law, when it criminalizes organizations, uses different terminology, does not change it from being the same in the sense that the US designation as a foreign terrorist organization, if you look at those definitions,

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They are based on organizations that are formed for the purpose of attacking people and property.

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So in that sense, they are the same.

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They just haven't been designated by the United States as opposed to an organization within Belgium.

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So the issue here, and this is

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part of what we're saying with regard to using a strict Lockeberger test in the international context, because here the offense clearly was the same.

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It's just that under the Belgian law, they call these organizations one thing, and under the US law, they call them another thing.

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But we are talking about the same organization and the same types of organizations.

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But that really goes back to sort of a Syndonia kind of analysis, which I thought you were acknowledging we should not apply.

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There's a fine line, particularly here, because you don't have to go so far as the test in Sedonia seemed to go, because the issue isn't just did they both charge an al-Qaeda offense, but are the criminal laws in Belgium

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and the criminal laws in the United States designed at targeting the same groups.

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And the fact that they may not be precisely the same should not be enough to distinguish them for purposes of double jeopardy under the treaty, because you're never going to have a Belgian law that's going to define criminal organizations in the same exact way as the US law is defining them.

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And the treaty itself recognizes that different terminology does not distinguish offenses.

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or at least in the... So one country may use association, and the other country may use conspiracy, and we're gonna say that's equivalent.

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But where one country says conspiracy to kill U.S.

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nationals and our sovereign interest as the United States is in protecting U.S.

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nationals abroad, that seems to me that that's a sovereign interest.

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That is not the interest that's asserted by Belgium in protecting its

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the enumerated structures in its law, bridges and installations of various kinds.

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I don't think the court can look to whether or not the U.S.

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has some sovereign interest because any offense that the U.S.

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charges, particularly if there's extra-territorial jurisdiction, there's going to be a U.S.

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interest in doing it.

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Here, the way that the U.S.

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reaches to Belgium and gets offenses in Belgium is by

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only targeting offenses against US nationals.

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But that description alone can't be enough to distinguish international offenses.

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Otherwise, they would always be such an element.

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Not necessarily, because black murder requires non-overlap both ways.

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So if you have murder in Belgium, and then you have US law that says, we're going to ask for extradition when the murder that happened in Belgium was of a US national, then that's going to be barred by Article 5, right?

[00:12:13] Speaker 02:
And this is essentially no different, because what Belgium has charged is murder by explosion, essentially, because they have charged plotting to bomb something while people are present, which is a second degree murder or a felony murder.

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And the charges here are under 20.

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and under 1111A, which includes second degree murder and felony murder.

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So this is no different than that, because Belgium has charged plotting to bomb something while people are present, and we have charged

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using a bomb, a weapon of mass destruction, and the murder together, which together formed the Charge A in Belgium.

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But our Charge One has a conspiracy, and their Charge A doesn't.

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Our Charge One has a target of US nationals, their Charge A doesn't.

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Their Charge A aims to bomb one of the enumerated structures.

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Our Charge has nothing about structures.

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So it seems like under a Blockberger analysis, there's quite a bit to work with.

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First of all, our charge is a conspiracy.

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One.

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Our charge is a conspiracy.

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Their charge is a conspiracy.

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And I asked the court to look at the record on this because we've submitted both the judgment in Belgium and the direct appeal in Belgium, both of which quote the charging document at the beginning.

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There are two cases together, so it's a little confusing.

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But the case in which Mr. Turbelci was charged begins on page 359 of the record as to the court of

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as to the judgment of the trial court in Belgium and page 142 of the record as to the Court of Appeals decision in the direct appeal of Mr. Trebelci's conviction in Belgium.

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That sets forth the charges in Belgium and at the very beginning of it, it describes the ways in which he's charged with having committed the offenses

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specifically uses the word conspiracy the only reason the district court made the mistake of saying that these were not conspiracy charges because remember the government was not arguing that below the only reason they made he made the mistake was because it wasn't raised

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And we never had the opportunity to say, look at the record, he was charged with conspiracy.

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We've spoken to the lawyers in Belgium.

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Here's what they've given us.

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These are what the charges were.

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And if you look at the description in the Court of Appeals decision of what the charges were, it specifically has a category called charges related to criminal conspiracy.

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So why is it?

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I think part of the reason why there's so much deference paid by US courts to foreign courts and ministers' determination of their laws, because comparative law is very sophisticated and easy to get wrong.

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As I understand it, just reading the Belgian laws, they were charged under criminal, Travelsa was charged under Belgian criminal code 52510 and 51 for charge A, which is the one that you're claiming overlaps with counts one and two.

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And I don't see a conspiracy element in those laws.

[00:15:28] Speaker 02:
But it's charged as a conspiracy.

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Where does that come in?

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It comes in at the beginning of the charging document.

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It lists the ways in which it is charged.

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What does that do in Belgium?

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What work does that do?

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Does it give you eligibility for more time?

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Is it just a method of proof?

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Is it like aiding and abetting?

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Why is it not codified?

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I think the penalties are the same, but I'm told that that's the way it's charged.

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And if you look at the charge and document, it has conspiracy in it.

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If you look at the and while we may not understand it and it may not have been the same way we would charge a conspiracy for charge a the documents demonstrate that it clearly was because if you look at the opinion, it describes the conspiracy that was charged that he was convicted of and

[00:16:13] Speaker 02:
it states conspiracy as the means by which he was accused of having committed the offense.

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Also, even if you had a doubt about that, if you look at charge D, he was specifically charged with being an instigator of an association for the purposes of attacking people and property, which is the same as count one attacking

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people and count to attacking people and property by explosion when you add in the charge.

[00:16:40] Speaker 01:
But if the Belgian courts have reached the conclusion that even if we assume that they understood that it was a conspiracy under Belgian law, that it wasn't the same conspiracy within kind of a block burger type analysis,

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How are we to just ignore their interpretation of their own law?

[00:17:05] Speaker 02:
Because they weren't interpreting their own law.

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They were interpreting both laws and they did not find that the distinction was a conspiracy in the United States and no conspiracy in Belgium.

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That's not at all what they found.

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What they found was essentially that it was a different conspiracy because they took out over at Acts 23 through 26

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which it appears from the record they believed changed the nature of what Mr. Tbilisi could be convicted of in the U.S.

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In fact, they were wrong about U.S.

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law, not about Belgian law.

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They were wrong on their understanding of what that did to the U.S.

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charges, because in practice it did nothing, because the government is using the same plot to destroy Kleinbergl, and there is no other evidence other than the plot to destroy Kleinbergl.

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But isn't that the distinction between the first level of decision and the second level of decision and then the final level of decision?

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I mean, isn't that part of the difficulty that you're taking us into?

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I thought first your argument in part was given the provision in Article 5, it's not the same as a Blockberger test for purposes of double jeopardy.

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And that while we find Blockberger to be an easy test to apply, that's not the concept that Article 5 was addressing.

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So then that takes us down the road of trying to understand these two different legal systems.

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And some of the questions you've been answering this morning, it seems to me, suggest that either we're going down this very difficult road you're suggesting, or we're pretty close to the other end, saying we take the Belgian minister and the document at what it said, and if in our legal system we are satisfied under a Blockberger test,

[00:19:05] Speaker 03:
that there are different elements, that that is sufficient under the treaty.

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And I'm not suggesting that Belgium knows we have a blockburger test, but there is some respect for different legal systems in the way they approach charges.

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And if a country wants to be very specific about something, it can.

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But if it isn't, then there is this deference that kicks in in international comedy.

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If you give that deference to Belgium in this case, then you will be allowing them to interpret our law, which we've never in any case deferred to a foreign court's interpretation of what the US law is.

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You'd be deferring to their decision as to what the US charges were.

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This court is in no different position to compare the Belgian offenses to the U.S.

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offenses than the Belgian court was.

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And to completely allow them to do it would be allow them to make the mistake such as they made here.

[00:20:12] Speaker 03:
No, but the record we have before us was that the first level tried to distinguish the nature of the conspiracies by eliminating certain overt acts.

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That was not followed through.

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It was.

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And that's the government's misrepresentation with regard to what the Belgian system is.

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And if you look at the record in all of these opinions, it's clear, because the first step is the same as it is in the United States.

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The prosecutor has to go to the magistrate judge and say, is this warrant enforceable?

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That's the very first step, and that's the only way anybody can be extradited.

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They did that in Belgium.

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They went to the Belgian court, and that court took out those overt acts.

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Eliminating those overt acts remained through the entire process, all the way to the Belgian minister's decision.

[00:21:00] Speaker 03:
I thought when it went up to the Court of Appeals, they didn't do that.

[00:21:03] Speaker 02:
No, they didn't.

[00:21:04] Speaker 02:
It wasn't challenged in the Court of Appeals.

[00:21:07] Speaker 02:
That would have been the Belgian government's decision to challenge the removal of those overt acts.

[00:21:12] Speaker 02:
And the Belgian Court of Appeals decision

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And following in the extradition case, which is at, I'll find it, but that first court of appeals decision specifically said, and this is cited in our brief, that we, that removal of those overt acts isn't before the court because the Belgian government didn't challenge that.

[00:21:34] Speaker 02:
So the Belgian government was stuck with that all the way through.

[00:21:37] Speaker 02:
And even if you go to the Minister of Justice's

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decision he begins with, given that we've removed those alert acts 23 through 26, which all demonstrates that the Belgians made a mistake as to what the U.S.

[00:21:54] Speaker 05:
law... Well, the minister refers to those, but interprets it slightly differently from how you're characterizing the minister says.

[00:22:02] Speaker 05:
You couldn't prosecute for acts 23 through 26 as themselves criminal.

[00:22:10] Speaker 05:
But you could consider them as evidence or overacts or components of the broader conspiracy, which in the United States seems satisfied with that.

[00:22:20] Speaker 02:
And so... They seem satisfied with that because they know, unlike what the Belgians apparently didn't know, that they can simply prove

[00:22:29] Speaker 02:
than more narrow conspiracy, even though they've charged U.S.

[00:22:33] Speaker 02:
citizens wherever they may be, they can go in to present the evidence, because the Belgians are allowing them to present the evidence.

[00:22:40] Speaker 05:
But I don't think that's in conflict with what the minister's opinion contemplates.

[00:22:44] Speaker 05:
Do you?

[00:22:45] Speaker 02:
Yes, because if you look at what the minister's opinion contemplates and what all the Belgian decisions contemplate is that they've charged, the United States has charged some broader conspiracy, some other conspiracy, and it even says in the opinions, unconnected to Belgium.

[00:23:00] Speaker 02:
But that's not what they've charged here.

[00:23:01] Speaker 02:
They've charged the same conspiracy.

[00:23:03] Speaker 02:
That's the other reason why the court has to look to the facts when comparing offenses in this case, because you're comparing conspiracies.

[00:23:11] Speaker 02:
The government cannot break up

[00:23:13] Speaker 02:
and that's what they're doing here, and they seem to have done it by confusing the Belgians into thinking that it's a separate conspiracy, but it's the same conspiracy, it's the same actors.

[00:23:27] Speaker 02:
It's the same al-Qaeda plot.

[00:23:29] Speaker 02:
It's the same evidence.

[00:23:31] Speaker 02:
It's the same events.

[00:23:32] Speaker 02:
And the underlying charges to murder and to use a weapon of mass destruction and a bomb are all the same.

[00:23:41] Speaker 02:
So for those reasons, it's one big conspiracy.

[00:23:43] Speaker 02:
They charged, even if you look at it as they only charge part of it in Belgium, they can't now charge it saying wherever they may be.

[00:23:51] Speaker 02:
Particularly here it's offensive because they're only using the evidence of Klein-Brugel even though they've labeled it wherever it may be.

[00:23:58] Speaker 03:
All right.

[00:23:59] Speaker 03:
Why don't we hear from the government?

[00:24:00] Speaker 02:
Thank you.

[00:24:15] Speaker 03:
Good morning.

[00:24:16] Speaker 04:
Good morning.

[00:24:16] Speaker 04:
May it please the court?

[00:24:17] Speaker 04:
Peter Smith on behalf of the United States.

[00:24:21] Speaker 04:
I would like to address a few of the points that appellant's counsel made as she was wrapping up.

[00:24:27] Speaker 04:
But first, I want to make the overall point that this court should not review appellant's claim.

[00:24:33] Speaker 04:
Belgium considered and rejected the arguments that appellant is making now.

[00:24:40] Speaker 04:
The Casey decision indicates reasons why this court ought to grant the decision of the Belgian government

[00:24:47] Speaker 04:
deference.

[00:24:48] Speaker 04:
Those reasons are persuasive and powerful.

[00:24:51] Speaker 04:
They include comedy and respect for foreign relations.

[00:24:56] Speaker 04:
Belgium is our equal treaty partner in the bilateral treaty and this court ought to recognize that treaty obligation extends to the Belgian decision.

[00:25:08] Speaker 04:
Were we to extradite someone

[00:25:10] Speaker 04:
to a foreign country like Belgium, we would not want the foreign authorities to second-guess our decision here.

[00:25:19] Speaker 05:
Mr. Smith, the Casey decision in DICTA said we owe great deference to the foreign government's interpretation.

[00:25:27] Speaker 05:
What is our role?

[00:25:29] Speaker 05:
Is it rubber stamp?

[00:25:31] Speaker 05:
What is, how do we conceive of the role that we have here?

[00:25:34] Speaker 04:
I think that though, in a nutshell, the role would be that the court would satisfy itself that certain prerequisites are met.

[00:25:42] Speaker 04:
First of all, that, well, you would evaluate appellant's claim.

[00:25:46] Speaker 04:
It is a double jeopardy claim that arises under the treaty.

[00:25:49] Speaker 04:
you would look at the treaty to ensure that that is a provision of the treaty.

[00:25:55] Speaker 04:
You would look at what Belgium did.

[00:25:57] Speaker 04:
It extradited, you would look at its grant of extradition, and you would look at the fact that it ruled on these questions, and that would be the end of the court's inquiry.

[00:26:07] Speaker 03:
The court would not... So we don't care what it said?

[00:26:13] Speaker 04:
This court wouldn't look behind Belgium's decision.

[00:26:18] Speaker 03:
Suppose the United States agreed to extradite a person here on offenses A, B, and C. And he's extradited to Belgium.

[00:26:39] Speaker 03:
And Belgium decides,

[00:26:42] Speaker 03:
to prosecute him on offenses A, B, C, and D. And suppose the United States has just finished prosecuting on D, and he's just been released after serving his time on D. Now, I just wanted to put it in the sense of the United States might have an interest as distinct from where they're receiving in.

[00:27:13] Speaker 03:
And to what extent would we contemplate that the Belgian court would even inquire and understand whether or not that decision by the United States to extradite contemplated that there could be a prosecution in Belgium on offense D. And what I understand from the government is

[00:27:42] Speaker 03:
Really, the court has no role.

[00:27:44] Speaker 04:
Well, I think your suggestion, Judge Rogers, is compatible with the government's position, because there is an important distinction between the situation where the United States is extraditing a defendant, and that defendant would have review here versus the situation in this case where Trebelci is being extradited to the United States.

[00:28:04] Speaker 03:
But what I was trying to highlight is what is the nature of the inquiry by the inquiring court?

[00:28:11] Speaker 03:
Now, we're after extradition.

[00:28:14] Speaker 03:
Casey was before extradition.

[00:28:18] Speaker 03:
Other courts have looked at this after extradition, many times in the context of habeas, and other times actually after trial.

[00:28:29] Speaker 03:
But I gather the government is not resisting the notion that Article V is in the nature of a double jeopardy protection which a defendant may

[00:28:42] Speaker 03:
invoke?

[00:28:44] Speaker 04:
We are not resisting the suggestion that article five is a double jeopardy type of claim, that it is similar to abny, but what we are saying is that there's a predicate or ancillary question, which is whether the court even has jurisdiction to review this type of... That's what I'm trying to ask.

[00:29:02] Speaker 03:
You said we shouldn't.

[00:29:03] Speaker 03:
And I wondered whether you were acknowledging that we have jurisdiction.

[00:29:07] Speaker 03:
But once we have jurisdiction, then we should exercise conflict.

[00:29:10] Speaker 04:
No, we're suggesting the court lacks jurisdiction, that the court would only have the authority to inquire on the papers in the manner that I mentioned.

[00:29:18] Speaker 03:
What about Johnson?

[00:29:19] Speaker 03:
No, no, but can I just be clear?

[00:29:20] Speaker 04:
Yeah.

[00:29:20] Speaker 03:
Even to do that, don't we have to have jurisdiction?

[00:29:26] Speaker 04:
Are you?

[00:29:28] Speaker 04:
I mean, that's a new.

[00:29:29] Speaker 04:
I don't think necessarily, because supposing the court lacks subject matter jurisdiction, it still has to evaluate the papers and the parties and the claim in order to satisfy itself that it lacks subject matter jurisdiction.

[00:29:43] Speaker 03:
No, but your statement about we shouldn't inquire means he loses as distinct from.

[00:29:48] Speaker 03:
No, I understand.

[00:29:50] Speaker 04:
And perhaps I misspoke.

[00:29:52] Speaker 04:
But what I'm saying is the court lacks jurisdiction to do more than that.

[00:29:57] Speaker 04:
And I would suggest that in many of the cases that have evaluated claims on the merits, they've taken one of two strategies.

[00:30:06] Speaker 04:
Either the parties haven't raised the issue and the court hasn't addressed it, or they've said, this is a complicated question, and they've set it aside and said the merits are simple, so we're going to address the merits.

[00:30:17] Speaker 04:
And if I may, I would like to do that.

[00:30:18] Speaker 01:
Can I understand your position?

[00:30:20] Speaker 01:
Because it seems like you're saying something different now than what you said in your briefs.

[00:30:25] Speaker 01:
Are you saying that we do not have jurisdiction to hear this appeal at all?

[00:30:30] Speaker 04:
We're suggesting that and we did say that in our brief and then we took the position that at a minimum under the Casey decision the court had to grant at least great deference to the decision of the Belgian court.

[00:30:43] Speaker 04:
But the primary argument was that the court shouldn't review it.

[00:30:48] Speaker 04:
What I'd like to do is pivot to some of the factual claims

[00:30:52] Speaker 03:
No, but before you pivot, I just need to be clear where we are.

[00:30:58] Speaker 03:
Because I know where you want us to end up.

[00:31:01] Speaker 03:
But I want to know what's the path there is.

[00:31:06] Speaker 03:
If you're acknowledging that a treaty is the law of the United States, and that Article 5 includes a double jeopardy protection that a defendant

[00:31:22] Speaker 03:
facing prosecution in this country following extradition may invoke

[00:31:28] Speaker 03:
then why are we not in the Abney-type situation?

[00:31:32] Speaker 04:
Where we differ, Your Honor, is in the last part of your suggestion that we think that, given those set of facts, that the defendant would be in the position of any other defendant in the United States.

[00:31:45] Speaker 04:
The fact that the treaty is the law of land doesn't mean that a defendant may assert any claim at any time.

[00:31:51] Speaker 03:
No, no, but I'm just clear.

[00:31:54] Speaker 03:
I mean, Casey leaves this open.

[00:31:56] Speaker 04:
It does.

[00:31:57] Speaker 03:
Now he's in this country having been extradited by Belgium at our request and he's claiming that

[00:32:07] Speaker 03:
While you can prosecute him on a lot of things, there's some things you can't prosecute on.

[00:32:12] Speaker 04:
Right.

[00:32:12] Speaker 04:
And he fully litigated that in Belgium.

[00:32:15] Speaker 03:
I understand.

[00:32:16] Speaker 03:
But now he's here.

[00:32:17] Speaker 03:
And Casey left this open.

[00:32:19] Speaker 03:
All right.

[00:32:19] Speaker 03:
And I just need to understand what is Article 5 if it isn't something that a defendant

[00:32:28] Speaker 03:
has a right to invoke.

[00:32:30] Speaker 04:
Sure.

[00:32:31] Speaker 04:
Article 5 could be seen in a variety of ways.

[00:32:35] Speaker 04:
And I would suggest that it is a provision that governs the roles of the two sovereigns.

[00:32:41] Speaker 04:
So it doesn't necessarily mean that a defendant has legal rights under that provision.

[00:32:48] Speaker 04:
And even if he did, they would be in Belgium.

[00:32:50] Speaker 04:
And that's the basis of our argument.

[00:32:51] Speaker 04:
This, in part, answers Judge Wilkins' question.

[00:32:53] Speaker 03:
I don't understand.

[00:32:54] Speaker 03:
If Belgium and the United States enter a treaty that says,

[00:32:57] Speaker 03:
Any person we agree to, right under this treaty, will have the protection of double jeopardy, let me just say it that way, in shorthand, if and when they are prosecuted in the receiving country.

[00:33:15] Speaker 03:
I understand the two countries could duke it out, but

[00:33:19] Speaker 03:
What's the purpose of having that in a treaty if it's not to afford some protection to the person who's actually the subject of the request and the transfer?

[00:33:31] Speaker 04:
In that situation then the treaty itself would

[00:33:35] Speaker 04:
authorize the court to engage in a sort of double jeopardy analysis.

[00:33:41] Speaker 04:
But the treaty here doesn't say that.

[00:33:43] Speaker 04:
It says that a person can't be prosecuted for the same offense of conviction in the requested state, which is Belgium.

[00:33:51] Speaker 04:
And Appellant litigated this repeatedly.

[00:33:55] Speaker 04:
And we can talk about how he did that.

[00:33:57] Speaker 04:
But Belgium made a final determination.

[00:33:59] Speaker 04:
The Minister of Justice

[00:34:01] Speaker 04:
granted extradition, that was affirmed by the Council of State.

[00:34:06] Speaker 04:
The United States obtained a diplomatic note, which is the decision of the government of Belgium explaining that the result of all this was that the overt acts were not excluded, that appellant could be tried on the government's indictment on the offenses, that the Belgian authorities had compared the offenses

[00:34:28] Speaker 04:
in the two countries and were satisfied that there was no double jeopardy issue as under the treaty.

[00:34:35] Speaker 04:
And as I mentioned before, that would be the end of the court's inquiry.

[00:34:40] Speaker 04:
But Apollon has made a lot of other claims that I do want to address.

[00:34:44] Speaker 04:
We're going to give you time to address them.

[00:34:47] Speaker 05:
But let me just ask on this point.

[00:34:49] Speaker 05:
Do you have authorities in the context of specialty or speciality or however it's referred to in

[00:34:59] Speaker 05:
in diplomatic relations that allows the receiving court to inquire, like Johnson versus Brown.

[00:35:08] Speaker 05:
And it seems like there's a separate question whether the prosecution that is proposed in the United States is consistent with the extradition.

[00:35:19] Speaker 05:
It's not that we're reviewing and questioning what

[00:35:22] Speaker 05:
Brussels did for its own satisfaction.

[00:35:26] Speaker 05:
We have an obligation under Black Burger to make sure that

[00:35:32] Speaker 05:
the prosecution here is consistent in our view.

[00:35:36] Speaker 05:
But I think that's a very... So again, we have some ability.

[00:35:43] Speaker 05:
I mean, let's say once he comes here, we have 100% deference to the minister's decision.

[00:35:49] Speaker 05:
He's extradited.

[00:35:50] Speaker 05:
He's here.

[00:35:51] Speaker 05:
And instead, the

[00:35:54] Speaker 05:
There's a superseding indictment that charges him for the absolute closest analog in the United States to the Belgian laws under which he was prosecuted.

[00:36:02] Speaker 05:
Presumably that would be a Johnson versus Brown problem, no?

[00:36:07] Speaker 04:
I guess I have at least two responses to your suggestion, and one is that double jeopardy and specialty are quite different.

[00:36:17] Speaker 04:
The specialty claim only arises after extradition, and it has all to do with what the government of the United States is doing.

[00:36:26] Speaker 04:
The double jeopardy issue under the treaty, not the

[00:36:30] Speaker 04:
standard Blackburger inquiry of a United States defendant, but under the treaty is, are the offenses the same?

[00:36:37] Speaker 04:
And that is a question for the extraditing that country from which the defendant is being extradited in our view.

[00:36:44] Speaker 04:
And specialty, so specialty is distinguishable because it's a claim that arises later, unlike this claim we would argue.

[00:36:52] Speaker 03:
Why?

[00:36:53] Speaker 04:
Why is it different in that way?

[00:36:55] Speaker 04:
Because it wouldn't be clear until the government actually began its prosecution, or even engaged in the prosecution of what happened.

[00:37:04] Speaker 05:
And even if the court didn't think that that was sufficient... Isn't it structurally just the same, where in order to get the extradition, the US executive branch makes a proffer?

[00:37:15] Speaker 05:
whether under specialty or under double jeopardy.

[00:37:18] Speaker 05:
And that's what the foreign sovereign looks at.

[00:37:21] Speaker 05:
And so it's really structurally very closely analogous.

[00:37:23] Speaker 04:
But here, we would be addressing specialty.

[00:37:27] Speaker 04:
And in the double jeopardy context, Belgium has already addressed that and would address that just like we would if we were sending someone.

[00:37:35] Speaker 04:
So it has to do with who under the treaty is responsible for the inquiry.

[00:37:39] Speaker 04:
My second argument is even if the court disagreed with that and thought the inquiries were the same, this court in Lope Sierra, for example, said that the question of whether a defendant can even raise specialty is open.

[00:37:51] Speaker 05:
I don't follow that.

[00:37:52] Speaker 05:
So if Belgium has, let's say, a privacy protection that we don't recognize that could raise a specialty problem, we want someone to be extradited from Belgium.

[00:38:04] Speaker 05:
Belgium is the one that's going to examine the specialty issue and put a halt to that.

[00:38:07] Speaker 05:
No, not us.

[00:38:08] Speaker 05:
You say it's a different sovereign.

[00:38:10] Speaker 04:
That sounds more like a dual criminality problem.

[00:38:13] Speaker 04:
Dual criminality problem.

[00:38:14] Speaker 05:
Specialty is what we're... Right.

[00:38:16] Speaker 04:
There's a grant of extradition.

[00:38:18] Speaker 04:
The United States government has gone beyond that.

[00:38:20] Speaker 04:
And we're exceeding it.

[00:38:21] Speaker 04:
Or here, for example, we obtained another superseding indictment.

[00:38:25] Speaker 04:
We added a whole new charge.

[00:38:27] Speaker 04:
So that's why I'm saying that would arise later, and that is contemplated that the United States government may adjudicate that claim.

[00:38:46] Speaker 04:
The second part of my response is, even if the court disagreed that that was somehow distinguishable, it's not even clear that a defendant can raise a specialty claim.

[00:38:57] Speaker 04:
In Lopez Sierra, just a few years ago, this court said that was an open question.

[00:39:01] Speaker 04:
Some circuits have allowed such claims to go forward.

[00:39:04] Speaker 04:
It's clear that

[00:39:05] Speaker 04:
This court would lack jurisdiction over such a claim on interlocutory review.

[00:39:11] Speaker 04:
I don't know of any circuit that allows that.

[00:39:13] Speaker 04:
If the specialty claim were allowed to go forward, it would be a following conviction during direct appeal.

[00:39:20] Speaker 04:
And defendant, and this I guess goes back to my Casey point before.

[00:39:25] Speaker 04:
Appellant will have those sorts of rights in the future, subject to trial and conviction.

[00:39:32] Speaker 04:
He would have a direct appeal.

[00:39:34] Speaker 04:
So he can vindicate his other rights.

[00:39:38] Speaker 04:
The only thing that we're talking about here is the double jeopardy analysis, the comparison of the offenses.

[00:39:44] Speaker 04:
Belgium has done that.

[00:39:46] Speaker 05:
Tell us more about the step back and the context.

[00:39:49] Speaker 05:
Whose interests?

[00:39:52] Speaker 05:
are being served and how in having article five, I had to say it was very striking to me that in your brief, you mentioned only torture and trade secrets as potentially the targets of this.

[00:40:08] Speaker 05:
And that seemed very limited to me.

[00:40:11] Speaker 04:
Oh, there we were just giving an example of overlapping claims.

[00:40:15] Speaker 04:
And the court earlier mentioned murder.

[00:40:17] Speaker 04:
And that could be similar, given extraterritorial jurisdiction, if there was just a murderer committed by or against an American citizen.

[00:40:26] Speaker 04:
But both countries could prosecute that.

[00:40:29] Speaker 04:
That may be barred under the treaty and would beg how one would analyze that.

[00:40:37] Speaker 04:
But if Belgium.

[00:40:38] Speaker 04:
But the interest of what?

[00:40:41] Speaker 05:
Why is Article 5 in there?

[00:40:42] Speaker 05:
Whose interest is it serving?

[00:40:44] Speaker 04:
It's the countries.

[00:40:45] Speaker 04:
The countries have contracted.

[00:40:47] Speaker 04:
They have entered into the treaty with certain expectations.

[00:40:51] Speaker 04:
The rights belong to the countries.

[00:40:54] Speaker 04:
And so, for example, some circuits allow a country to waive a specialty claim.

[00:41:01] Speaker 05:
Is Article 5 waivable in your view?

[00:41:03] Speaker 04:
We think it could be.

[00:41:08] Speaker 04:
It hasn't been addressed by the parties.

[00:41:09] Speaker 04:
I think it could be.

[00:41:10] Speaker 04:
And certainly, appellant would be in the court's hypothetical earlier today where the question was, supposing Belgium did something that was hinky in terms of the extradition.

[00:41:23] Speaker 04:
Our response would be, first of all, this court doesn't review the Belgian decision.

[00:41:26] Speaker 04:
But second of all, he's had that review.

[00:41:29] Speaker 04:
If the minister of justice did something funny,

[00:41:32] Speaker 04:
the Council of State is responsible for reviewing that decision, which is what happened here.

[00:41:39] Speaker 01:
And it affirmed... I suppose the Minister of Justice and all of the courts did some sort of a Blockberger analysis, and they said that the elements were different, and they based their analysis on the elements of the U.S.

[00:41:59] Speaker 01:
statute on a lower court decision.

[00:42:03] Speaker 01:
And after the extradition happens, the Supreme Court interprets the statute completely contrary to that lower court decision.

[00:42:15] Speaker 01:
And based on the Supreme Court's interpretation, Blockberger would apply.

[00:42:23] Speaker 01:
We should just ignore what the Supreme Court says and give deference to an erroneous Belgian interpretation.

[00:42:33] Speaker 04:
This court should, but appellant would have the ability to make those arguments in Belgium.

[00:42:41] Speaker 04:
So he brought not only the same claim, he made these same arguments in Belgium.

[00:42:48] Speaker 04:
He made the arguments that the offenses were different.

[00:42:50] Speaker 04:
He explained why.

[00:42:51] Speaker 04:
He had review to numerous courts.

[00:42:54] Speaker 01:
And if I'm understanding the- So if his reviews in Belgium were exhausted, and he's extradited, and he's brought here,

[00:43:03] Speaker 01:
We can't review it.

[00:43:04] Speaker 01:
Our response would be, you know, try to argue that back in Belgium and get so that you can get sent back.

[00:43:15] Speaker 01:
But we are powerless to do anything.

[00:43:17] Speaker 01:
That's how you would have us write that opinion.

[00:43:20] Speaker 04:
I think so, although I would and I haven't

[00:43:26] Speaker 04:
thought this through fully, but I guess I would say that the court can take comfort in the fact that once the opponent is here and the double jeopardy question had been resolved, he would still have all the rights of any other defendant in the United States.

[00:43:41] Speaker 04:
So he would be able to raise claims on direct appeal.

[00:43:44] Speaker 04:
He would be able to raise collateral claims.

[00:43:46] Speaker 01:
But I thought your argument is that

[00:43:49] Speaker 01:
I mean, double jeopardy doesn't apply with different sovereigns.

[00:43:53] Speaker 01:
That's why you have state prosecutions and federal prosecutions for the same time.

[00:43:57] Speaker 01:
The only reason that he's got any protections here is because of the treaty, right?

[00:44:04] Speaker 01:
So to the extent that he has any double jeopardy rights that can be recognized, it's because they were granted to him by the treaty.

[00:44:15] Speaker 01:
So who gets to say whether the treaty is being complied with?

[00:44:24] Speaker 04:
I guess the story answer to the question is he would not have that recourse for a number of different reasons.

[00:44:29] Speaker 04:
One is, are the jurisdictional questions that I mentioned, he could raise those arguments in Belgium.

[00:44:34] Speaker 04:
But Belgium is also applying its own law and its own procedures

[00:44:40] Speaker 04:
to the extradition, so it's not even clear to me that if the Supreme Court said something about double jeopardy, that post-dated the Belgian determination, that that would be relevant to what Belgium did.

[00:44:55] Speaker 01:
Why would it be?

[00:44:55] Speaker 01:
I mean, they say the Belgian highest court says that we find that for charge A, the elements are one, two, and three.

[00:45:05] Speaker 01:
And under the U.S.

[00:45:09] Speaker 01:
offense, the elements are A, B, and C. And there's difference applying the Blockberger test.

[00:45:20] Speaker 01:
And therefore, based on that, we extradite this gentleman to the United States.

[00:45:26] Speaker 01:
And then the Supreme Court says, well, the elements to the U.S.

[00:45:29] Speaker 01:
offense aren't A, B, and C. There's something else.

[00:45:36] Speaker 01:
When, if we were to look at that, we would say, Lockburner no longer applies because the Supreme Court locked off element C, let's say.

[00:45:45] Speaker 01:
They just said it's element A and B. Right.

[00:45:49] Speaker 01:
Yours, you, you know, that would have no relevance.

[00:45:54] Speaker 01:
at that point, because it just happened to come too late, so it's not relevant?

[00:46:00] Speaker 04:
I mean, it would seem so, because the claim there would be that appellant would be asking this court to review the legal determination of the Belgian government, of the Belgian authorities.

[00:46:13] Speaker 04:
And I'm not aware of any authority that would allow this court to do that.

[00:46:18] Speaker 04:
Casey makes clear that even if, setting aside the jurisdiction question, even if this court were to grant great deference to the decision of a foreign sovereign, that this court does not review legal errors of a foreign sovereign.

[00:46:35] Speaker 04:
And that's exactly what that would be.

[00:46:37] Speaker 05:
I know you're urging us not to get there, but assuming that we do want to understand the nature of the application of Article V under block burger to

[00:46:48] Speaker 05:
these counts, can you just walk us through on count one versus Belgian charge A, the element that count one includes that Belgian charge A doesn't conspiracy?

[00:47:03] Speaker 04:
Conspiracy would be one.

[00:47:05] Speaker 04:
Correct.

[00:47:06] Speaker 04:
In agreement.

[00:47:07] Speaker 04:
And I'm going to respond, not by repeating our brief, but I'm going to respond to what Appelman's counsel argued this morning.

[00:47:15] Speaker 04:
And she argued that Belgium had charged

[00:47:19] Speaker 04:
opponent with a conspiracy.

[00:47:20] Speaker 04:
She was focusing on US count one.

[00:47:23] Speaker 04:
She said that that had to do with the way he was charged in Belgium.

[00:47:27] Speaker 04:
And my response is that you look at the offenses.

[00:47:31] Speaker 04:
Article 51, it's cited, this is explained on page 34 of the government's brief.

[00:47:35] Speaker 04:
says that that is an attempt.

[00:47:38] Speaker 04:
An attempt is clearly different from a conspiracy, because a conspiracy requires an agreement.

[00:47:45] Speaker 04:
Appellant has cited a lot of language.

[00:47:47] Speaker 04:
That to me sounds a lot like aiding and abetting, where people cooperate to do something.

[00:47:51] Speaker 04:
That doesn't mean it's a conspiracy.

[00:47:53] Speaker 04:
Even if the court did not buy that argument and concluded, and again, addressing the merits, setting aside all these other issues about Casey, that the court weren't convinced of that, you would have two different conspiracies.

[00:48:08] Speaker 04:
The scope is different.

[00:48:09] Speaker 04:
The time is different.

[00:48:10] Speaker 04:
The object of the conspiracy is different.

[00:48:12] Speaker 04:
There are many differences.

[00:48:14] Speaker 04:
And in fact, going beyond count one, the United States indictment charges three different conspiracies.

[00:48:20] Speaker 04:
One of the differences the court suggested earlier today in terms of the count three and four of the United States indictment is terrorism.

[00:48:30] Speaker 04:
And I would make the following point.

[00:48:34] Speaker 04:
It is not just a matter of the lexicon that the countries are using.

[00:48:39] Speaker 04:
The government has charged a crime of terrorism.

[00:48:42] Speaker 04:
Terrorism is defined in the US Code as involving a political purpose.

[00:48:47] Speaker 04:
2332B, I think it is, defines terrorism as an attempt to influence the government.

[00:48:54] Speaker 04:
Now, Belgium charged a paladin with offenses relating to an association of wrongdoers or membership in a criminal gang.

[00:49:02] Speaker 04:
That is clearly not the same thing.

[00:49:05] Speaker 04:
one can be a member of a criminal gang or criminal association that has nothing to do with terrorism and it doesn't have a political purpose.

[00:49:12] Speaker 05:
The political purpose, I don't recall you emphasizing that in your brief and there's a provision of the treaty that steers clear of

[00:49:26] Speaker 04:
political question, but that's different from whether the offenses are the same.

[00:49:31] Speaker 05:
Let me ask you, are you, I assume you're also relying on, so you're relying on conspiracy, not being present in the Belgian charge, killing U.S.

[00:49:40] Speaker 05:
nationals.

[00:49:40] Speaker 05:
Killing U.S.

[00:49:41] Speaker 05:
nationals, the timing of the conspiracy is different.

[00:49:45] Speaker 05:
The timing and scope and object, that sounds like it's getting into the sort of the Sindonia

[00:49:50] Speaker 05:
that's not in the law, that's in the facts.

[00:49:53] Speaker 04:
Well, one would have to look at the, I mean, our argument is essentially Blackburner, it's the same elements test.

[00:49:59] Speaker 04:
One looks at the offenses.

[00:50:01] Speaker 04:
It gets

[00:50:02] Speaker 04:
slightly more complicated in conspiracy, because one would look at the scope of the object of the conspiracy or the conspiratorial agreement.

[00:50:11] Speaker 04:
That would distinguish one's conspiracy from another.

[00:50:14] Speaker 05:
Right.

[00:50:14] Speaker 05:
It's like her point about if it's murder, the fact that if it's murder on your books and their books, if it's not the same person, you can't apply Blockberger there.

[00:50:24] Speaker 05:
So here you're saying, well, the facts come in to play in this limited way in the sense of,

[00:50:30] Speaker 05:
is this is are we even talking about the same thing here, but I'm not sure that I'm see where the scope is so different and that's where you get into these charges 2324 2526 and it's really the heart of the U.S.

[00:50:43] Speaker 04:
case as well well.

[00:50:46] Speaker 04:
Again, comparing count one, because there's three different conspiracies.

[00:50:50] Speaker 04:
Count one conspiracy of Helen argues is the same as the Belgian charges because it involves, according to him, a plot to blow up the Klein-Brogol military base.

[00:51:00] Speaker 04:
The United States charges include 28

[00:51:05] Speaker 04:
separate, overt acts.

[00:51:07] Speaker 04:
They involve training.

[00:51:08] Speaker 04:
They involve acts that occurred in Pakistan, Pakistan and Afghanistan.

[00:51:13] Speaker 04:
They involve involvement in Al Qaeda, the fact that opponent is an Al Qaeda operative.

[00:51:18] Speaker 04:
They involve attacks that would

[00:51:21] Speaker 04:
be sort of mobile, where it wasn't just client robo, it was the fact that depending on the needs of al-Qaeda, I guess, and that's paraphrasing, appellant would be sent to various locations or places.

[00:51:34] Speaker 04:
It's not so limited.

[00:51:36] Speaker 05:
So you said there were three conspiracies.

[00:51:39] Speaker 05:
Can you just tell us what you're talking about?

[00:51:41] Speaker 04:
Sure.

[00:51:41] Speaker 04:
The other conspiracy, charged conspiracy is, and again, each of these would be distinguished because they involve an agreement.

[00:51:48] Speaker 04:
So even there, and the Belgian charges do not, so even there we would prevail under Brockberger.

[00:51:54] Speaker 04:
The second conspiracy is

[00:51:57] Speaker 04:
the weapon of mass destruction.

[00:52:02] Speaker 04:
And there you have, again, a different object of the conspiracy.

[00:52:07] Speaker 04:
It's not simply to blow up the Klein-Grogel military base, and it's not simply to use one method at one time, in one place,

[00:52:15] Speaker 04:
It is different.

[00:52:17] Speaker 04:
It's simply a different conspiracy.

[00:52:19] Speaker 04:
It involves a weapon of mass destruction that could be used at a different time or a different place.

[00:52:25] Speaker 04:
The third conspiracy involves... Could be, but was it charged?

[00:52:29] Speaker 04:
Were there facts given in the indictment?

[00:52:31] Speaker 04:
Well, if you look back at the first

[00:52:34] Speaker 04:
If you look at the overt acts, and again, I appreciate the point about our theories, you look at the offenses.

[00:52:41] Speaker 04:
You look at the offenses themselves.

[00:52:43] Speaker 04:
And there you have an agreement.

[00:52:45] Speaker 04:
Weapons of mass destruction.

[00:52:46] Speaker 04:
Right.

[00:52:46] Speaker 04:
You have of a certain type.

[00:52:49] Speaker 04:
And you have one overt act or one substantial step.

[00:52:53] Speaker 04:
So those are the offenses.

[00:52:55] Speaker 04:
And those themselves are different.

[00:52:56] Speaker 04:
But when one looks at the object of the conspiracy.

[00:53:00] Speaker 05:
And what does the Belgian have that the US doesn't have?

[00:53:04] Speaker 05:
in charge A, count two.

[00:53:08] Speaker 05:
But it requires us to have both elements in the U.S.

[00:53:11] Speaker 05:
that aren't in the Belgian and elements in the Belgian that aren't in the U.S.

[00:53:14] Speaker 05:
And you said, what was the mass destruction?

[00:53:17] Speaker 05:
It has, Belgium has not just someone present,

[00:53:25] Speaker 04:
Knowledge of some of the structures.

[00:53:27] Speaker 04:
So that's distinguishable.

[00:53:29] Speaker 04:
Structures is distinguishable.

[00:53:30] Speaker 04:
The time in the, the Klein-Brogel military base and the use of a bomb or a different weapon of mass destruction is broader.

[00:53:40] Speaker 04:
It could be something different and it could be used at a different place or a different time.

[00:53:43] Speaker 05:
Could be, could be, but you're talking about the same chemicals.

[00:53:47] Speaker 05:
You don't have any evidence of a different weapon of mass destruction.

[00:53:49] Speaker 05:
You're talking about the same chemicals.

[00:53:50] Speaker 05:
So that's, you're slipping out of

[00:53:53] Speaker 05:
the formal... The offense... Yeah, the offense into the facts.

[00:53:57] Speaker 04:
Right, we're looking at the object of the agreement.

[00:54:01] Speaker 04:
When you're looking at the offenses, you would still come to the same result for the reasons that we just discussed.

[00:54:08] Speaker 05:
I actually find counts three and four harder.

[00:54:11] Speaker 05:
And that's material support for... Because they...

[00:54:16] Speaker 05:
You know, you've charged in count three, a conspiracy to provide support to a foreign terrorist organization.

[00:54:22] Speaker 05:
And they've charged in charge D, an association formed to interpersonate property.

[00:54:29] Speaker 05:
There's a conspiracy aspect there.

[00:54:31] Speaker 05:
There's an association or gang intending to use force.

[00:54:39] Speaker 05:
Distinction, I guess, is conspiracy versus instigator, but he's not bound to have been an instigator.

[00:54:44] Speaker 05:
Does that matter?

[00:54:45] Speaker 04:
It doesn't matter.

[00:54:46] Speaker 04:
First of all, one distinguishing element would be the conspiracy, the agreement.

[00:54:53] Speaker 05:
Another distinguishing element... Although here they do charge conspiracy, don't they?

[00:54:58] Speaker 05:
Agreement.

[00:55:01] Speaker 04:
it's we would argue it's not the same but even if they were two conspiracies they're different conspiracies but the reason they're not necessarily the same is that on an aiding and abetting

[00:55:12] Speaker 04:
theory, you can agree with someone to do something.

[00:55:16] Speaker 04:
But the conspiracy charge is different because it's punishing the agreement.

[00:55:20] Speaker 04:
It's not punishing the act.

[00:55:22] Speaker 05:
But Belgian charge D is association formed to injure persons or property.

[00:55:27] Speaker 05:
And it's under Belgian criminal code 322, conspiracy 323, association to commit crimes.

[00:55:32] Speaker 05:
So that one seems quite explicitly also focusing on an agreement.

[00:55:40] Speaker 05:
Not so?

[00:55:41] Speaker 04:
It doesn't mean that it's a conspiracy in that formal sense.

[00:55:46] Speaker 04:
But even if the court thought that they were two conspiracies and interpreted Count D as a conspiracy, it's still different.

[00:55:52] Speaker 04:
The conspiracy in the United States is

[00:55:56] Speaker 04:
material support to a foreign terrorist organization.

[00:55:59] Speaker 04:
So it requires material support.

[00:56:01] Speaker 04:
That's not an element of the Belgian defense.

[00:56:03] Speaker 04:
And it requires a tick terrorism, which, as defined in the US code, is not simply a group or a gang or a criminal purpose.

[00:56:11] Speaker 04:
It's more than that.

[00:56:12] Speaker 04:
It's a political purpose to influence the government.

[00:56:15] Speaker 05:
If there's foreign terrorist organization is differentiates the United States, what in Belgium is required that's not required in the US for block burger purposes?

[00:56:25] Speaker 05:
I'm not sure I see that.

[00:56:28] Speaker 04:
Well, an association of wrongdoers would be something different.

[00:56:32] Speaker 04:
That would be a requirement that would not be in the West.

[00:56:35] Speaker 05:
Has the treaty itself talked about association of wrongdoers being the Belgian equivalent of conspiracy?

[00:56:42] Speaker 04:
No.

[00:56:43] Speaker 04:
I mean, the treaty language is in Article II.

[00:56:44] Speaker 04:
It's not in Article V. It uses the word or in between those two things.

[00:56:49] Speaker 04:
And you also need to consider the purpose of the treaty.

[00:56:52] Speaker 04:
Article II's purpose is

[00:56:55] Speaker 04:
The whole purpose of the treaty is to encourage extradition.

[00:56:59] Speaker 04:
So Article 2 is saying, look, in the dual criminality context, we interpret that broadly.

[00:57:04] Speaker 04:
We want to bring people in.

[00:57:07] Speaker 04:
We interpret double jeopardy narrowly because

[00:57:10] Speaker 04:
That excludes folks from being extradited to the United States, and we want to interpret that narrowly.

[00:57:16] Speaker 04:
And that's consistent with the purpose of the treaty, the Senate report.

[00:57:20] Speaker 04:
So the purpose of the treaty refutes the argument that those things are the same in the treaty, as does the use of the word or in Article II.

[00:57:29] Speaker 04:
So they are, in fact, different, and it's not simply a matter of nomenclature.

[00:57:35] Speaker 05:
And that's, you don't have anything else to differentiate the Belgian from the

[00:57:40] Speaker 05:
U.S.

[00:57:41] Speaker 05:
on charge.

[00:57:42] Speaker 04:
On charge, and D, on D, charge, Belgian charge D is the association of wrong doubt.

[00:57:50] Speaker 05:
Yeah.

[00:57:53] Speaker 05:
I guess,

[00:57:57] Speaker 05:
I mean, the hardest one, I think, is count four and Q. Intending to use force, you can do terrorism without intending to use force.

[00:58:03] Speaker 04:
Again, those things are different for the reason that I said.

[00:58:07] Speaker 04:
Terrorism has a political purpose as an element.

[00:58:10] Speaker 04:
So that would be an element of the US offense.

[00:58:14] Speaker 04:
It is not an element of the Belgian offense.

[00:58:17] Speaker 04:
The Belgian offense is...

[00:58:24] Speaker 05:
But isn't private organizations intending to use force?

[00:58:27] Speaker 05:
That's a subset of terrorist organizations.

[00:58:30] Speaker 04:
It could be.

[00:58:30] Speaker 04:
But that's not just positive, because here we're talking about conspiracies.

[00:58:33] Speaker 04:
We're talking about the elements are not the same.

[00:58:36] Speaker 04:
There can be overlap of conspiracies.

[00:58:39] Speaker 04:
Dixon and Felix make that clear.

[00:58:41] Speaker 04:
So the question isn't whether there's overlap.

[00:58:44] Speaker 04:
The question is, is it the same conspiracy?

[00:58:46] Speaker 04:
And it's not the same conspiracy.

[00:58:48] Speaker 04:
Belgian Count Q involves membership in a private militia, the purpose of the private militia being to use force.

[00:58:56] Speaker 04:
It could be a subset, but that doesn't mean that there's a double jeopardy problem.

[00:59:02] Speaker 05:
Well, I mean, what I'm asking for is the Blockburger step that shows it to not be wholly included within.

[00:59:09] Speaker 05:
So you don't want it to be a subset if it's going to satisfy Blockburger, right?

[00:59:14] Speaker 04:
There could, I guess, one response is there could be overlap.

[00:59:17] Speaker 05:
But you have to point to something that's penalized by the Belgian law that isn't by the US.

[00:59:24] Speaker 05:
And you're saying it's the non-political group that are seeking to use force.

[00:59:29] Speaker 04:
Right.

[00:59:30] Speaker 04:
The association is distinguishable.

[00:59:33] Speaker 04:
The US requires material support to a foreign terrorist organization.

[00:59:38] Speaker 04:
So those are two things that are different.

[00:59:39] Speaker 04:
So what's different in the Belgian count queue is membership in a private militia that's not required in the U.S.

[00:59:47] Speaker 04:
count, and the purpose to use force is different.

[00:59:52] Speaker 05:
Material support could be... Why is the purpose to use force different?

[00:59:55] Speaker 04:
Well, the US code required defines material support as can be something less than using force.

[01:00:03] Speaker 04:
It defines it as being, for example, providing money to a foreign terrorist organization.

[01:00:10] Speaker 05:
But the organization has to have a purpose to use force, or not.

[01:00:13] Speaker 04:
It can have a purpose to use threats.

[01:00:15] Speaker 04:
Right.

[01:00:15] Speaker 04:
It could or could not.

[01:00:16] Speaker 04:
Those things are distinguishable.

[01:00:18] Speaker 04:
They're different.

[01:00:19] Speaker 05:
And my point is that it's just that- I think you and I are saying slightly different things, though.

[01:00:23] Speaker 05:
I'm saying that the organization, you look at the purpose of the organization.

[01:00:28] Speaker 05:
Yes, somebody can be providing material support by giving money.

[01:00:30] Speaker 05:
But if you're associating with them or conspiring with them, that's about the support you're giving.

[01:00:39] Speaker 05:
But the group, the definition of the group is

[01:00:43] Speaker 05:
in Belgium, a purpose-to-use force, and in the U.S., a purpose-to-use force and or threats.

[01:00:50] Speaker 04:
Or threats, or coercion, or... So the two are not necessarily the same.

[01:00:57] Speaker 04:
They're distinguishable.

[01:00:59] Speaker 05:
What about, what is the...

[01:01:03] Speaker 05:
Travestis' lawyer has said that it seems like the treatment within the Belgian system of the exclusion of Acts 23 through 26 kind of shifted as the case went up.

[01:01:14] Speaker 05:
And there's a case to be made for that.

[01:01:16] Speaker 05:
Originally, the lower court was saying, well, they're not going to prosecute him for this.

[01:01:21] Speaker 05:
And then by the time it gets into the hands of the minister, it's like, yeah, you can use that evidence.

[01:01:25] Speaker 05:
You can use it as an ax.

[01:01:27] Speaker 05:
you know, those can't be the separate offenses.

[01:01:30] Speaker 05:
What is the point, as you understand it, of Belgium having taken the trouble to exclude 23 through 26?

[01:01:41] Speaker 04:
Well, I can't answer the question of what the initial point was, but my response would be

[01:01:46] Speaker 04:
Initially, they seem to exclude those counts.

[01:01:49] Speaker 04:
But by the time the Minister of Justice made the determination, which is the grant of extradition, that was not an exclusion.

[01:02:01] Speaker 04:
And that was affirmed by the Council of State.

[01:02:03] Speaker 04:
And the diplomatic note makes clear that there is no such exclusion.

[01:02:07] Speaker 05:
Well, they do still talk about it as if they're affirming it, and oh, yes, there's that exclusion, and well, what does it mean?

[01:02:16] Speaker 05:
And so if we're asking us to do anything other than a complete rubber stamp, we have to have some non-arbitrary way of describing what that's about.

[01:02:25] Speaker 04:
I guess I have two responses.

[01:02:26] Speaker 04:
One is that the Belgium court, the Belgium system, followed its course.

[01:02:34] Speaker 04:
And again, we've discussed why the United States thinks the courts should be inquired of.

[01:02:38] Speaker 04:
Which is sort of a process-based argument, OK.

[01:02:41] Speaker 04:
We're setting this aside.

[01:02:42] Speaker 04:
look, the initial courts basically made a mistake.

[01:02:44] Speaker 04:
They looked at the overt acts as being a charge, and the Minister of Justice said, well, that's not the way we compare the offenses.

[01:02:51] Speaker 04:
You look at the elements of the offenses and see if they're the same.

[01:02:55] Speaker 04:
That's what the treaty requires.

[01:02:57] Speaker 04:
The Minister of Justice corrected a mistake in these earlier court decisions.

[01:03:02] Speaker 04:
That's how the process is supposed to work.

[01:03:05] Speaker 04:
Appellant raised arguments throughout this process.

[01:03:09] Speaker 04:
They were rejected.

[01:03:10] Speaker 04:
The Minister of Justice's

[01:03:12] Speaker 04:
view is set forth in appendix pages 583 and 584.

[01:03:16] Speaker 04:
It makes clear that the subject is the offenses and the elements, that the overt acts are not excluded, that the United States can raise that as evidence during trial.

[01:03:27] Speaker 04:
And Appellant was arguing this morning that those are still excluded and that

[01:03:32] Speaker 04:
You know, we disagree with that.

[01:03:33] Speaker 04:
That's incorrect.

[01:03:35] Speaker 04:
It's refuted by page 584 of the record.

[01:03:38] Speaker 04:
The Council of State went on to affirm the decision of the Minister of Justice, and it uses the same language about the offenses, the fact that the government can use other evidence.

[01:03:48] Speaker 04:
It can use all of its evidence.

[01:03:51] Speaker 04:
The diplomatic note specifically references the avert acts 23 through 26 and says the government can use those.

[01:03:58] Speaker 04:
So if there were any

[01:04:00] Speaker 04:
question at all about the meaning of these various

[01:04:03] Speaker 04:
court decisions and government decisions, the definitive view of the Belgian government, which is expressed in the diplomatic note, is, as the government, the United States government is arguing to you now, which should give you solace, that there was not, in fact, this mistake.

[01:04:22] Speaker 04:
Again, setting aside the issue about whether this court would even review that or reach that question.

[01:04:28] Speaker 05:
I think I might have missed your transition.

[01:04:31] Speaker 05:
You said there were two reasons.

[01:04:33] Speaker 05:
One of them was that the Belgian system had followed its course, and the other one was that... Well, that the factual record actually refutes.

[01:04:43] Speaker 04:
I mean, I see these as two different things.

[01:04:46] Speaker 04:
One is that the initial courts did accept these overt acts, and they were essentially overruled.

[01:04:53] Speaker 04:
or reversed or vacated by later decisions.

[01:04:58] Speaker 04:
And the later decisions are the correct ones.

[01:05:01] Speaker 04:
And the second part of my response is, because how do we know that?

[01:05:04] Speaker 04:
We know that because the record has the plain language of the Minister of Justice decision.

[01:05:11] Speaker 04:
It includes the plain language of the Council of State decision.

[01:05:15] Speaker 04:
And if there were any question about any of those things,

[01:05:18] Speaker 04:
We have the diplomatic note, which is the expression of the government of Belgium's view about this particular question.

[01:05:29] Speaker 03:
Anything further?

[01:05:33] Speaker 03:
OK, thanks.

[01:05:34] Speaker 03:
You OK?

[01:05:35] Speaker 03:
Anything you want to add quickly?

[01:05:38] Speaker 04:
I don't think so.

[01:05:39] Speaker 04:
Thank you very much.

[01:05:40] Speaker 04:
We urge the court to affirm the judgment of the district court in this case.

[01:05:45] Speaker 04:
Thank you very much.

[01:05:53] Speaker 02:
What government counsel just said is essentially it would be the same as a Belgian lawyer standing up before a Belgian court and saying the attorney general overruled the magistrate judge in his extradition decision.

[01:06:06] Speaker 02:
He couldn't do that, and neither could the Belgian minister of justice overrule the courts.

[01:06:11] Speaker 02:
There's a process.

[01:06:13] Speaker 02:
They took the warrant to decide

[01:06:16] Speaker 02:
And to be clear, what the diplomatic note says is you can use the evidence.

[01:06:22] Speaker 02:
It does not say that you can prosecute him for the offense in overt acts 23 through 26.

[01:06:28] Speaker 02:
Those overt acts were excluded from the beginning, and nothing changed.

[01:06:32] Speaker 02:
It was never overruled.

[01:06:34] Speaker 02:
And if you look to the Belton minister of justice's opinion, counsel just cited to it,

[01:06:39] Speaker 02:
on 584, go two pages before that, and it says, given the removal of the overt acts, the prosecuting authority had no authority to change what the court said about how the warrant was enforceable, which was the original decision.

[01:06:56] Speaker 02:
It wasn't appealed as to the exclusions for 23 through 26.

[01:07:00] Speaker 02:
That stands.

[01:07:02] Speaker 02:
The confusion seems to be in the fact that, in this case as in every case, even if

[01:07:08] Speaker 02:
you exclude something from extradition.

[01:07:12] Speaker 02:
You say, you can have him for offense A, B, and C, but you can't have him for offense D. When he goes to be prosecuted for A, B, and C, you can use the evidence of offense D as other crimes evidence or evidence of the charge defenses in any other way you want to.

[01:07:30] Speaker 02:
And that's always what the Belgians have been saying.

[01:07:33] Speaker 02:
You can use the Klein-Brugel evidence to prove your other charge.

[01:07:38] Speaker 02:
But they made the mistake of thinking that there was some other charge.

[01:07:42] Speaker 02:
And the problem here is that there isn't.

[01:07:43] Speaker 05:
What about the government's blockburger analysis that the otherness of the charge is something we measure by blockburger.

[01:07:52] Speaker 05:
We don't measure it by a kind of transaction or occurrence, Sedonia-type analysis.

[01:07:56] Speaker 05:
And here, the thing that distinguishes it is it's quite formal, but it's the Foreign Terrorist Organization.

[01:08:04] Speaker 05:
It's the US people being involved.

[01:08:06] Speaker 05:
I don't know.

[01:08:09] Speaker 05:
I don't know.

[01:08:10] Speaker 05:
I don't know.

[01:08:14] Speaker 05:
I don't know.

[01:08:17] Speaker 05:
aspects that are not replicated in the other law.

[01:08:19] Speaker 05:
And so the fact that they are really focusing on, as a big part of the case, both prosecutions, the clinical efforts, but in ways that are different offenses.

[01:08:31] Speaker 02:
Because they're both conspiracy offenses.

[01:08:34] Speaker 02:
And even in the U.S., when you compare conspiracies

[01:08:37] Speaker 02:
You have to look at the underlying facts.

[01:08:39] Speaker 02:
You have to look at whether that they're same people, the same places, whether it's a common goal, whether they look at the interdependence among the participants and the overlap among the participants.

[01:08:51] Speaker 02:
Here it is the same exact conspiracies, the same group of people doing the same things for the same purpose.

[01:08:58] Speaker 05:
But in a way you're answering a question that's

[01:09:01] Speaker 05:
one step further down the road from where I think the United States would stop you and they would say, well, you know, if it was like murder here, murder there, then we'd look and see, is it the same person or conspiracy here, conspiracy there?

[01:09:13] Speaker 05:
Then we'd look and say, well, it's gotta be the same conspiracy or non.

[01:09:17] Speaker 05:
If it's not, then it's different.

[01:09:19] Speaker 05:
But they're saying, well, no, it's not conspiracy there, conspiracy here.

[01:09:23] Speaker 05:
It is this type of crime there and that type of crime here.

[01:09:27] Speaker 05:
So we're not pass block murder, so we're not even getting into your question.

[01:09:30] Speaker 05:
Because we're not worried that we've got the same offense, but we're barring prosecution because it's actually a different person that was killed.

[01:09:38] Speaker 02:
They are the same offenses.

[01:09:39] Speaker 02:
The main thing that the government just said was that in the U.S.

[01:09:42] Speaker 02:
there are terrorism offenses and talked about terrorism offenses being political offenses.

[01:09:46] Speaker 02:
That's not an element of any of the offenses.

[01:09:49] Speaker 02:
Nowhere is it an element.

[01:09:51] Speaker 02:
Foreign terrorist organization.

[01:09:52] Speaker 02:
It has to be foreign.

[01:09:53] Speaker 02:
Right, but it has to be a designated organization.

[01:09:56] Speaker 02:
That's the difference, because it has to be a designated organization, whereas in Belgium it only had to be this certain kind of association.

[01:10:03] Speaker 02:
What we're asking the court to do is just look at what is a designated organization.

[01:10:09] Speaker 02:
It's an organization that uses force against people or property.

[01:10:14] Speaker 02:
They are the same in that respect.

[01:10:16] Speaker 02:
They target the same types of organizations.

[01:10:20] Speaker 02:
They're both here targeting Al Qaeda.

[01:10:22] Speaker 02:
And to say because we call it a designated terrorist organization, but they're calling Al Qaeda an association formed to attack persons or properties, he can be prosecuted at the same time.

[01:10:34] Speaker 02:
It's not what Double Jeopardy intended.

[01:10:36] Speaker 02:
Double Jeopardy is to face like the Razack situation where they charged

[01:10:40] Speaker 02:
murder in here.

[01:10:41] Speaker 02:
We were charging air piracy that had to do with airplanes and other elements that aren't the same here.

[01:10:47] Speaker 02:
The elements are the same.

[01:10:48] Speaker 01:
They're just called different things in the bank robbery.

[01:10:52] Speaker 01:
I mean, even if you have a D. C prosecution for armed robbery,

[01:10:56] Speaker 01:
in the federal prosecution for bank robbery, and they're both at the same time here in U.S.

[01:11:03] Speaker 01:
District Court.

[01:11:05] Speaker 01:
There's no double jeopardy issue there, right, because a bank robbery federal statute requires it to be a federally insured institution, et cetera.

[01:11:15] Speaker 01:
So you could prosecute the guy for armed robbery and bank robbery

[01:11:21] Speaker 01:
for the exact same act, right?

[01:11:24] Speaker 01:
No block burger problem.

[01:11:25] Speaker 02:
Well, there would be the arm aspect, but if the only difference was the federally insured and robbery, yes, you could prosecute that, putting aside the fact that they're separate sovereigns, D.C.

[01:11:35] Speaker 02:
and the U.S., and they haven't negotiated as the sovereignty.

[01:11:38] Speaker 01:
It's the same sovereign.

[01:11:39] Speaker 01:
The U.S.

[01:11:40] Speaker 01:
is the same sovereign.

[01:11:41] Speaker 01:
It's a superior court for the D.C.

[01:11:43] Speaker 01:
co-defense.

[01:11:44] Speaker 02:
I understand.

[01:11:45] Speaker 02:
I thought the court was using separate states.

[01:11:47] Speaker 02:
But even if the only difference is the federally insured, yes, you can.

[01:11:51] Speaker 02:
What we're asking is that if you look at the treaty and if you use that same very strict block burger test for international offenses, you're always going to have that problem.

[01:12:03] Speaker 02:
And the parties to the treaty have negotiated that away because they've said you don't look to essential jurisdictional elements that is under the dual criminality provision.

[01:12:12] Speaker 02:
But I think you can consider that.

[01:12:13] Speaker 02:
when you consider what they meant by the same offenses.

[01:12:19] Speaker 02:
And if you say that they meant because we're calling them US citizens, that would also allow the court's example of murder because it's a US citizen and murder because it's a Belgian citizen, when it is the same offense, if you allow that distinction to be the distinction.

[01:12:35] Speaker 02:
But the problem is that in an international context, there would be no purpose for the double jeopardy provision then.

[01:12:42] Speaker 02:
And then to get to the court's jurisdictional questions, the parties here to the treaty negotiated and contracted for the rights of the people that they have control over.

[01:12:55] Speaker 02:
We want our US citizens to have the same right not to be prosecuted in Belgium that we have not to be prosecuted here.

[01:13:07] Speaker 02:
If you accept the government's argument and completely defer to the Belgians, that would mean a U.S.

[01:13:11] Speaker 02:
citizen could be sent to Belgium, and we would have no control over the fact that if we made a mistake about Belgian law, and the Belgians are saying, well, that's not really what the law is, but we're still going to prosecute them because you made that mistake.

[01:13:25] Speaker 02:
And the fact that the Belgians made a mistake here, if you look at the record on page 554,

[01:13:30] Speaker 02:
and that the only reason that they extradited here was because they misunderstood the nature of the conspiracy.

[01:13:38] Speaker 02:
They specifically say that the U.S.

[01:13:39] Speaker 02:
bases its prosecution on the existence of a larger criminal conspiracy than only the criminal conspiracy in the Belgian file.

[01:13:47] Speaker 02:
And then they say that the purpose

[01:13:50] Speaker 02:
of the offense considered by the American authorities is broader than the reference alone to the attempt to destroy Klein Bruegel and is based on elements having nothing to do with Belgium.

[01:14:00] Speaker 02:
And then it refers to the Bagao conspiracy and the Richard Reed conspiracy, which is not the evidence here.

[01:14:06] Speaker 02:
The Belgians made a mistake in thinking that this was a different conspiracy.

[01:14:11] Speaker 02:
It's the same actors, the same offenses, the only distinctions being what they call the organization and the

[01:14:19] Speaker 02:
in the US nationality.

[01:14:23] Speaker 03:
All right.

[01:14:23] Speaker 03:
Anything further?

[01:14:25] Speaker 02:
No, Your Honor.

[01:14:25] Speaker 02:
Thank you.

[01:14:26] Speaker 03:
We'll take the case under advisement.