[00:00:02] Speaker 00: Case number 15-5144, Roger Charles Day, Jr., appellant, versus Barack Obama, President of the United States. [00:00:10] Speaker 00: Mr. Walken. [00:00:11] Speaker 00: Mr. Walken will be amicus cari, and Mr. Coleman for the appellee. [00:00:58] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:01:00] Speaker 01: Ryan Watson is court-appointed amicus in support of Appellant's position. [00:01:04] Speaker 01: I'd like to reserve two minutes for rebuttal time, please. [00:01:07] Speaker 01: Thank you. [00:01:09] Speaker 01: The question here is whether the President is the proper respondent. [00:01:12] Speaker 01: Section 3192 specifically singles out the President when it establishes a custodial obligation for him to protect extraditees from being held for offenses outside the extradition warrant. [00:01:24] Speaker 01: And the entire thrust of Mr. Day's petition here is a challenge to the President's failure to properly carry out that custodial obligation. [00:01:31] Speaker 01: It therefore makes sense for the President to be the respondent, rather than the warden in Indiana who has nothing to do with Section 3192. [00:01:39] Speaker 01: It is well established in the Supreme Court precedent and in this Court's decisions that there are numerous exceptions to the immediate custodian rule. [00:01:48] Speaker 01: And those apply in a variety of circumstances where petitioners are challenging something other than their present physical confinement. [00:01:56] Speaker 03: When a petitioner places himself within an exception to be... What else is he challenging besides his present physical confinement? [00:02:03] Speaker 03: What other remedy does he seek than relief from confinement? [00:02:07] Speaker 01: So he is challenging the President's failure to properly carry out his custom... No, no, no, no, don't tell me what he's challenging right now. [00:02:13] Speaker 03: Tell me what other relief he's seeking other than relief from present confinement. [00:02:18] Speaker 01: So as an initial matter, in this appeal, the court doesn't need to ultimately resolve the merits of his claim or the particular remedy. [00:02:24] Speaker 03: Do you plan to not answer my question? [00:02:25] Speaker 01: No, I'm happy to answer your question as well, Your Honor. [00:02:27] Speaker 01: The remedy that I'm advocating here is most closely analogous to what happened in National Treasury Employees Union versus Nixon, which is a case where this court evaluated the president's actions for conformity with the statute. [00:02:42] Speaker 01: It held that the plaintiffs had a statutory right to get a pay raise put into effect by the president. [00:02:47] Speaker 03: So they were seeking a pay raise. [00:02:47] Speaker 03: He doesn't have anything. [00:02:49] Speaker 03: Therefore, he's not seeking clearance. [00:02:51] Speaker 03: What is it he is seeking other than release from confinement? [00:02:54] Speaker 01: So I'm advocating a – in National Treasury Employees Union, it was a declaratory? [00:02:59] Speaker 03: Never mind National Treasury. [00:03:00] Speaker 01: Okay. [00:03:00] Speaker 01: Or, Tim, there's never been a National Treasury employee. [00:03:03] Speaker 01: Okay. [00:03:03] Speaker 01: Declaratory. [00:03:04] Speaker 03: Tell me what he's seeking, if anything, other than release from confinement. [00:03:06] Speaker 01: Sure. [00:03:07] Speaker 01: So he's seeking a declaratory release from the court stating that the president has a duty to protect him from [00:03:12] Speaker 01: being held for aiding and abetting, which is outside of the extradition warrant. [00:03:16] Speaker 01: My view is that if a court were to enter such an order, then the president would have some discretion in response to that as to how exactly he remedies the 3192 violation that occurred here. [00:03:26] Speaker 01: So there are a variety of things that we mentioned in our brief as examples of what the president might do. [00:03:30] Speaker 01: That includes [00:03:32] Speaker 01: pardon, commutation, or perhaps the president would even consult with Mexico to determine the severity of the violation in their view. [00:03:38] Speaker 01: And it's even theoretically possible that the president would conclude that the error here was harmless, which is why it's not going to necessarily lead to the invalidation of his conviction. [00:03:50] Speaker 01: He's not challenging the trial court judge's entry of a conviction or a sentence. [00:03:54] Speaker 01: He's challenging what the president failed to do here. [00:03:57] Speaker 01: And the relief could lead to the invalidation of his conviction, but would not. [00:04:02] Speaker 03: The non-mutual and the non-specific were not the basis of his conviction. [00:04:08] Speaker 03: Isn't any such violation moot? [00:04:10] Speaker 03: And there may be a violation, but isn't it moot? [00:04:13] Speaker 01: So Mr. Day's argument is that aiding and abetting was an offense that was not included. [00:04:17] Speaker 03: That's a means of committing an offense. [00:04:19] Speaker 03: That's not defense too. [00:04:21] Speaker 01: Well, so that goes to the merits of Mr. Day's claim, which I think in the 3192 context, the question of whether aiding and abetting is a separate offense needs to be evaluated from the perspective of the sending state, which here is Mexico. [00:04:35] Speaker 01: And no court yet has addressed the question in Mr. Day's proceedings as to whether Mexico would view aiding and abetting to be a separate offense. [00:04:43] Speaker 01: And in fact, Mr. Day submitted an amicus brief as an attachment to his habeas petition below of a Mexican legal scholar who takes the position that aiding and abetting is not recognized by Mexico. [00:04:55] Speaker 01: That would be something that if this court determines that the president is the proper respondent and remands for further proceedings, the district court would have to get into the question of whether Mexico views aiding and abetting as a separate offense. [00:05:06] Speaker 01: It's not something you have to get into here. [00:05:09] Speaker 04: I mean, what do you do with the fact that he was not convicted of aiding and abetting? [00:05:15] Speaker 01: So I take the position that he was convicted of aiding and abetting. [00:05:19] Speaker 01: The government proposed an aiding and abetting instruction and advocated it for the charge. [00:05:24] Speaker 04: But there are lots of things proposed in instructions that don't result in a conviction of the thing proposed. [00:05:31] Speaker 04: They simply are explaining to the jury, here's the way we analyze [00:05:36] Speaker 04: What's before you? [00:05:37] Speaker 04: He wasn't convicted of aiding and abetting. [00:05:40] Speaker 01: So the district judge in the Eastern District of Virginia gave the aiding and abetting instructions. [00:05:45] Speaker 01: So it wasn't just proposed. [00:05:46] Speaker 01: It was given. [00:05:46] Speaker 03: What was he convicted of? [00:05:48] Speaker 01: He was convicted of several counts, wire fraud, conspiracy to commit wire fraud, conspiracy to commit money laundering, and conspiracy for a smuggling charge. [00:05:58] Speaker 01: But there was an aiding and abetting component to each of those that was the basis. [00:06:04] Speaker 04: because they're part of the means of achieving those wrongful ends, right? [00:06:10] Speaker 01: This Court has recognized that under U.S. [00:06:12] Speaker 01: law, aiding and abetting is a means of committing the underlying offense, but here, that's why I'm drawing the distinction for Mexican law. [00:06:20] Speaker 01: The district judge gave an aiding and abetting instruction that was general, it was applicable to all of the relevant counts, and in the closing argument, actually, the government [00:06:30] Speaker 01: in the trial really hammered home the facts that it alleged were critical to the aiding and abetting theory it had. [00:06:38] Speaker 01: It's aiding and abetting theory, as the government explained it, was that Mr. Day essentially got others to do the dirty work for him and to send, in particular, the allegedly fraudulent emails. [00:06:48] Speaker 01: And then at closing argument, the government really hammered home that point, and the jury got an aiding and abetting instruction. [00:06:54] Speaker 04: And so we think that... To prove the substance of offense. [00:06:58] Speaker 01: Again, that would have to be determined on how you were appointed. [00:07:05] Speaker 01: Yes, I was indeed. [00:07:07] Speaker 01: The Second Circuit's decision in Perusian and the Eighth Circuit's decision in Jeter are both cases that stand for the proposition that when you're evaluating whether a 3192 violation, well, those are specialty cases, but I'm analogizing to them here. [00:07:21] Speaker 01: They evaluate whether the violation has occurred from the perspective of the sending state, because a main purpose of 3192 and specialty is to ensure that the extraditing process of the sending state is not abused. [00:07:34] Speaker 04: Do we give no credence to our sister circuit? [00:07:38] Speaker 04: They've addressed this issue precisely, the Fourth Circuit, in this case. [00:07:44] Speaker 01: To be sure, in the direct appeal, the Fourth Circuit determined whether Mr. Day's specialty claim based on the U.S.-Mexico extradition treaty was valid, but it did not address 3192. [00:07:54] Speaker 01: It didn't mention 3192. [00:07:56] Speaker 01: So I don't think that the Fourth Circuit actually addressed the specific issue here, which is properly brought in habeas rather than on the direct appeal. [00:08:04] Speaker 01: In the Fourth Circuit, when it did the specialty analysis under the treaty, [00:08:07] Speaker 01: was doing so for U.S. [00:08:09] Speaker 01: law purposes and did not evaluate whether aiding and abetting was a separate offense for the purpose of Mexican law, which is the way that it should be conducted in these proceedings for 3192 purposes. [00:08:20] Speaker 04: But you agree, I guess, that if we see this as a case in which the claimant is merely trying to overturn the conviction, you can't prevail, right? [00:08:31] Speaker 01: It's certainly true that 2255 is the ordinary means to challenge the imposition or conviction or sentence. [00:08:37] Speaker 01: But I would submit that's not what's happening here. [00:08:40] Speaker 01: And there are a variety of things that could happen if Mr. Day were to succeed on the merits here and the president were to take some sort of action. [00:08:47] Speaker 01: It might lead to the invalidation of his conviction, but not necessarily. [00:08:50] Speaker 01: And in that respect, I would just point you to footnote seven of Heck versus Humphrey. [00:08:54] Speaker 01: which recognized that when harmless error analysis comes into play, it can disrupt what would otherwise be a cause and effect relationship between a subsequent court's ruling and the invalidation of an underlying conviction. [00:09:07] Speaker 01: So the fact that the president could theoretically conclude that the error here was harmless proves the point that it's not necessarily going to lead to the invalidation of his conviction. [00:09:17] Speaker 01: If there are no further questions, I'll reserve my remaining time for rebuttal. [00:09:21] Speaker 01: Thank you. [00:09:31] Speaker 05: Good morning, may it please the court. [00:09:33] Speaker 05: My name is Nick Coleman and I represent the United States in this matter. [00:09:38] Speaker 05: The district judge in this case correctly determined that this was in fact a challenge to the underlying conviction of Appellant, which should probably be brought under Section 2255 in the Court of Conviction. [00:09:52] Speaker 05: Appellant is at bottom arguing, even if he casts this as some failure on the part of the President, it's a failure of the President to protect him from allegedly illegal conviction. [00:10:04] Speaker 05: whether it's under the rule of specialty, as embodied in the US-Mexico extradition treaty, or some different version of specialty embodied in section 3192. [00:10:12] Speaker 05: It is ultimately a challenge to the conviction, and it is a request for release from his confinement for that conviction in federal prison out in Indiana. [00:10:24] Speaker 05: That is, at bottom, a challenge to the conviction, and it needs to properly be brought under section 2255. [00:10:30] Speaker 05: In fact, the appellant has already done that. [00:10:34] Speaker 05: He raised this claim first in direct appeal, and then he raised it in a 2255 motion before the Eastern District of Virginia. [00:10:42] Speaker 05: He didn't get the answer that he wanted, but that doesn't mean that he now gets to come to the district court in Washington, DC, and see if he can get a different answer to that same question, simply by posing it as some sort of failure on the part of the president. [00:10:58] Speaker 05: I do want to address one point that amicus positive first in the reply brief and is positive again here today, the idea that the president somehow that this question isn't fully presented because the president himself might find the error harmless. [00:11:14] Speaker 05: I haven't heard of any case in which the president was authorized to review a conviction for harmlessness. [00:11:21] Speaker 05: And in some sense, if that were true, in other words, if the error were in fact harmless, it's hard to see how the President violated his duty in the first place, because after all, at that point, what it means is that the conviction was not obtained in violation of any federal law. [00:11:37] Speaker 02: Do you actually agree with the argument that 3192 imposes a custodial duty? [00:11:45] Speaker 05: We don't, Your Honor. [00:11:47] Speaker 05: And I think one of the sort of oddities of this case, or if there is some sort of custody exercised by the president under 3192, it is exercised at this point on his behalf by the federal warden, who holds him at this point physically in Indiana. [00:12:06] Speaker 05: And at that point, if that's the custody being challenged, then the immediate custodian is the warden, and the petition is not properly here. [00:12:15] Speaker 05: I do think one of the oddities of Amicus's argument is that if the president is the custodian separately from any sort of confinement in prison, he would also be the custodian of any state prisoner. [00:12:29] Speaker 05: And at that point, then essentially what Amicus would be arguing is that a state prisoner similarly [00:12:35] Speaker 05: would be allowed to ask the President to come here to this courthouse and defend state convictions' legality, and the state wouldn't even be a party to that action. [00:12:48] Speaker 05: I think, again, this is not ultimately a challenge to any duty of the President under Section 3192. [00:12:55] Speaker 05: It is ultimately a challenge to the legality of the conviction. [00:13:00] Speaker 05: And I do want to take issue with one thing that Amicus argues here today, which is the idea that somehow this question was never presented before the Fourth Circuit. [00:13:09] Speaker 05: In fact, Appellant did raise Section 3192 in his very first specialty-related filing, which he made before he was sentenced. [00:13:20] Speaker 05: So he cited it before. [00:13:21] Speaker 05: He's also relied heavily on Rauscher, which is the Supreme Court's decision which construes the immediate predecessor to Section 3192. [00:13:29] Speaker 05: So I don't think that any of these specialty-related doctrines here, in other words, whether or not the extradition warrant [00:13:37] Speaker 05: authorized by Mexico permitted conviction that that was somehow not presented before the Fourth Circuit. [00:13:43] Speaker 05: But even if we assume that it wasn't, that doesn't mean that Appellant couldn't have raised this claim in the Eastern District of Virginia via a Section 2255 motion. [00:13:54] Speaker 05: And I think it's interesting that the Mexican legal opinion that Amicus is citing to today was first presented in that litigation. [00:14:03] Speaker 05: It was first presented during his direct appeal. [00:14:06] Speaker 05: It was attached as part of a brief before the Supreme Court in review of the direct appeal. [00:14:11] Speaker 05: And then it was resubmitted as part of the 2255 proceedings. [00:14:15] Speaker 05: So again, this was a claim that appellant could have raised under Section 2255. [00:14:20] Speaker 05: And so what that means is that there's no particular reason why the district court in Washington DC is the only court that could consider some of these questions. [00:14:28] Speaker 05: In fact, the question of whether the conviction was illegal [00:14:31] Speaker 05: is one that can certainly, and in fact under 2255, must be considered by the Court of Conviction. [00:14:37] Speaker 05: And that's precisely to avoid the situation where the District Court of Washington, D.C. [00:14:42] Speaker 05: would be issuing a decision that conflicts not only with decisions of the Eastern District of Virginia, but with the Fourth Circuit. [00:14:50] Speaker 05: I'm not aware of any situation in which a federal district court has been permitted essentially to countermand or review any federal appeals court's decision on the same question in the same case. [00:15:02] Speaker 05: And that, again, is just one of the procedural oddities that is created by Appellant's claim and by Amicus's formulation of it here. [00:15:11] Speaker 05: Because of that, we respectfully submit that the district court's decision here to find that there was no jurisdiction and to find that it simply wasn't able to entertain this claim should be affirmed. [00:15:21] Speaker 05: Unless there are any additional questions, again, we would ask that the judgment be affirmed. [00:15:27] Speaker 02: Thank you. [00:15:27] Speaker 02: Thank you, Mr. Coleman. [00:15:33] Speaker 02: We'll give you two minutes if you need it. [00:15:35] Speaker 01: Thank you, Your Honor. [00:15:37] Speaker 01: Just a few quick points on rebuttal. [00:15:39] Speaker 01: When an extraditee arrives in the United States, the president takes custody over him and thereafter has to exercise that custody in certain ways that are spelled out in 3192, a challenge to the president's failure to do so. [00:15:52] Speaker 01: For example, a challenge to his failure to provide safety, security, transportation, or to protect the extraditee from being held for offenses outside of the extradition warrant. [00:16:01] Speaker 01: is a challenge to the manner in which the president is exercising that custody. [00:16:06] Speaker 01: The government mentioned today that the warden in Indiana would be exercising the 3192 custody on behalf of the president. [00:16:16] Speaker 01: I disagree with that, and it's notable that in the government's brief, it pointed to all of the delegations that it could find of 3192 responsibility. [00:16:25] Speaker 03: None of them had to do with the warden, and none of them had to- Today being held by the warden, [00:16:32] Speaker 01: Yes, for the purpose of his custody of pursuant to his convictions and sentence. [00:16:37] Speaker 01: But there's a separate custody under 3192 that the president had when he took custody of Mr. David Ryan. [00:16:44] Speaker 01: Excuse me? [00:16:45] Speaker 03: The word had is past. [00:16:48] Speaker 01: No, it's an ongoing custodial relationship. [00:16:51] Speaker 01: If you look at the text of 3192, it actually makes clear that the president has responsibility that extends for a reasonable time after the sentence has been served. [00:16:59] Speaker 01: The reason that that exists in the statute is so that the expert IT can have [00:17:03] Speaker 01: a reasonable period of time to get back to the country that he came from. [00:17:06] Speaker 01: The president's going to keep him safe and secure during that time period. [00:17:09] Speaker 01: But it's an ongoing custodial relationship that begins when he arrives in the United States and continues all the way until a reasonable amount of time thereafter. [00:17:16] Speaker 01: And my point about the delegation to the warden is that there is no delegation to the warden and there's no delegation of the president's duty to protect extraditees from being held for offenses outside the extradition warrant. [00:17:28] Speaker 01: For those reasons, I would urge the Court to reverse and remand so that Mr. Day can press his 3192 claim against the President if there are no further questions. [00:17:38] Speaker 01: Thanks very much. [00:17:38] Speaker 01: Thank you. [00:17:39] Speaker 02: Thank you, Mr. Watson. [00:17:41] Speaker 01: You're welcome. [00:17:41] Speaker 02: We know that you were appointed to represent the appellant, and the Court appreciates your assistance. [00:17:47] Speaker 02: Thank you. [00:17:48] Speaker 00: My pleasure.