[00:00:00] Speaker 00:
Case number 20-3028 et al.

[00:00:03] Speaker 00:
United States of America versus Nizar Trebelzi, also known as Nizar Ben Abdelaziz Trebelzi, also known as Abu Qaqa at balance.

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Ms.

[00:00:11] Speaker 00:
Gatzel for the appellant, Mr. Smith for the appellate.

[00:00:15] Speaker 02:
Good morning, Ms.

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Gatzel.

[00:00:17] Speaker 02:
We'll hear from you.

[00:00:19] Speaker 05:
Good morning, Judge Wilkins.

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May it please the court, Celia Gatzel for appellant Nizar Trebelzi, and I would like to reserve two minutes for rebuttal, please.

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Since the court heard this case in 2017 US authorities have ignored the kingdom of Belgium's official united uncontested position as relieved through its Ministry of Justice.

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that one, counts one and two of the U.S.

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indictment may violate Article 5 of the treaty, and two, regardless, under the terms of this bilateral treaty, under uncontested Belgian law, and under Belgium's grant of extradition, specifically in this case, Mr. Trebelzi cannot be prosecuted for overt Acts 23 through 26, specifically the conspiracy to bomb the Kleinbrugel base.

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US prosecutors have portrayed for the lower courts, and for this court, a foreign separation of powers issue that simply does not exist in Belgium, and somehow convinced the lower courts to ignore Belgium's official interpretation of a bilateral treaty, completely disregard the ministry's official acts recognizing the supremacy of its judiciary,

[00:01:41] Speaker 03:
Miss Gatzel, can you be clear about the separation of powers issue?

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What are you saying that the US is ignoring?

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What is the separation of powers question that you're identifying?

[00:01:53] Speaker 05:
So the US has

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suggested that there is some sort of separation of powers issue in Belgium that the lower court should ignore and that the US courts should ignore.

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But what you're saying is there is no separation of powers issue.

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There is one united voice there.

[00:02:13] Speaker 03:
And by separation of powers, I guess I'm just asking, you're saying the purported difference between

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the court's view and the ministry's view?

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Is that what you mean by separation of powers?

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That's correct.

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The government in this case has portrayed that the minister's view of the actual grant of extradition in this case is somehow different from the court's view of that grant of extradition.

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And that is simply not the case here.

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Suppose we don't agree with you and we believe that

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The ministry does take a different view than the courts.

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Why shouldn't we view that the ministry's view, the executive's view prevails?

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The ministry has relayed the supremacy of the judiciary.

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So the ministry has adopted the judiciary's view in

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in complying with the orders of- You're fighting my hypothetical.

[00:03:24] Speaker 02:
My hypothetical is suppose we disagree with that argument and we find that the ministry is basically conveying what the court told it to convey, but not necessarily what it believes the proper interpretation of the treaty is.

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What do we do then?

[00:03:43] Speaker 05:
So two things.

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One,

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That is the interpretation of the treaty is separate from what the grant of extradition in this case permitted so adherence to the executive order the executor of the arrest warrant and the ministry has never said that the

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has never said that the executor wasn't part of the grant of extradition in this case.

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Secondly, I mean this court sister court has spoken directly to it and and said, the district.

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Court of Appeal for the District of Columbia interprets the ministerial order as authorizing extradition without the limits set during the executor of the arrest warrant.

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It doesn't say the ministry has interpreted its ministerial order as authorizing

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extradition without the limits set.

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It says that this court has misinterpreted, made a mistake about what it is that was actually granted.

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How do you square that position with the Brussels Court of Appeals ruling in the context of the motion to enforce

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in which it appears, and I'm looking at 2021, I believe, GA 2021, when it appears to recognize what this court has said and that there is some sort of distinction or conflict between what the court views and what the ministerial order says.

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I mean, it suggests very clearly

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that the DC circuit has given priority to the ministerial order and that its own decisions don't modify or cancel that order.

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So I'm not sure that I understand your view that there is a unified voice coming from Belgium as to what is happening here.

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First of all, I think that this citation on 2021, the court is referring to Judge Moss's lower court decision here, not the DC Circuit's decision.

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Except it says the DC Circuit in the very first sentence of the paragraph.

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You aforementioned American decisions, and in particular, that of the DC Circuit currently before appeal, right?

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Yes.

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So what this is saying is that the courts recognize that there's a dissension, there's a difference in interpretation of how Article 5 of the treaty should be applied.

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So to the extent that there is a difference in decision of how the law is applied, that has been finally decided, that was finally decided in Belgium

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When the appeal was the government's appeal of the August 2019 decision was dismissed.

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So, as a legal matter.

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If the court here is looking to what is Belgian law, then it.

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it should look to the courts as to how to interpret Belgian law.

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If the court is looking to how to interpret the extradition treaty, the ministry has relayed through a March 5th note, a very clear prescription that Mr. Trebelzi cannot be tried here for overt Acts 37.

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I'm sorry 23 through 26 and that the court should familiarize itself with the analysis in Belgium, and at least consider that that is the law in Belgium when can I just ask you, you mentioned the dismissal of this decision.

[00:07:58] Speaker 03:
Or where is that?

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Is that somewhere in the record?

[00:08:02] Speaker 05:
So that is the it's in a cited in a footnote in our briefs and the government has recognized it as well.

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It's the court of cassation decision.

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It's it's the last decision in the appendix at page twenty two hundred.

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And and that occurred on March 4th of twenty twenty one.

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And are we just taking judicial notice of that or is it somewhere in the record?

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Yes, it is in the appendix and we've cited it.

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It is a decision of a foreign court that the court can take judicial notice of.

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It actually found no legal basis for the government's appeal of the August 8th decision.

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Ms.

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Ketzel.

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I could just ask you some questions about subject matter jurisdiction here for the court.

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Our court in 2017 didn't reach the question of remedies, you know, what would be the appropriate remedy if you were to prevail.

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But I'm wondering if there were a violation of the treaty here.

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what the remedy would be.

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And it seems to me that the remedy in part may go to the question of subject matter jurisdiction, because it's unclear to me.

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I mean, if we can't dismiss the indictment, then how does Mr. Trebelci have redressability for his claims?

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So I'm wondering if you could address that question.

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So I'm a little unclear on your question.

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In terms of a remedy, we are asking the court at a minimum to order that overt acts 23 through 26 be stricken from the indictment to give effect to the extradition order in this case so that he is not tried for crimes that he was already tried for in violation of the treaty.

[00:10:08] Speaker 05:
The court can dismiss the indictment and can discharge Mr. Trebelzi under the Supreme Court case law about speciality in Thompson v. Brent.

[00:10:20] Speaker 04:
Isn't speciality a different type of concept?

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So even under the text of this particular treaty, the prior prosecution limit in Article 5

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seems to run to the extraditing state, to Belgium, right?

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Belgium has an obligation not to extradite someone in violation of Article 5.

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So once Mr. Trebelci is extradited and he's now here in the United States, does he have an injury or a claim against the U.S.

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government for a violation of Article 5?

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I mean, it doesn't seem that the United States is the cause of his harm.

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in this instance, right?

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It's the Belgian government who has the treaty obligation.

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Whereas for speciality, the US government has an obligation and those claims may well be cognizable.

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But it's not clear to me that he has a prior prosecution claim against the US government or a non-beasts claim against the US government once he's already been extradited by Belgium.

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So he does because article five, both parties have contracted and article five applies to both parties and the harm here that must be redressed.

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And the reason why this is here pre-trial is because the harm is in him being tried for offenses for which he has already been tried.

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So this court can stop that harm, redress that harm

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and stop the violation of Article 5, the violation of putting him in jeopardy twice for the same things that he was already tried for in Belgium by stopping this prosecution.

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Miss Getzel, can you cite, are there any cases in US courts in which such a claim has been successful?

[00:12:17] Speaker 04:
So where someone has already been extradited,

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And there's a claim that they should not have been extradited under, you know, a non-beast or prior prosecution type of treaty obligation.

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Cause I was not able to find any such case.

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And I don't believe that, that, that Mr. Trevely cites any of those cases in his briefing.

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It seems that the nature of non-beasts is that it runs against the extraditing state.

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And there are a number of cases that suggest that is how that principle is understood.

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It runs for both countries in the treaty as as written in the treaty.

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So extradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the requested state for the offense for which extradition.

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Both countries have an obligation not to extradite people in violation of this principle.

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So if someone were in the United States and Belgium was seeking extradition to Belgium,

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The United States would have an obligation not to violate Article Five and a person about to be extradited perhaps would have the ability to challenge their extradition under Article Five before they were extradited.

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But it seems that this, I mean this language I think pretty clearly runs against the extraditing, you know, the state that's been requested to extradite.

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Extradition shall not be granted.

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Here, the state that extradited Mr. Trebalzi is telling U.S.

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authorities, whoops, like maybe we did, maybe we shouldn't have extradited him.

[00:13:56] Speaker 03:
Well, I want to follow up on that point, which is a sort of an extension of what Judge Rao just mentioned, which is why is it then that we should now care about or give effect to a change

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So assuming that at the time the order was originally issued, it was clear and there was dissension between the Ministry of Justice and the courts regarding whether or not this person should be extradited.

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We get the order, the person is extradited,

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Under what circumstance can the ministry then change its mind about the extradition and have us give that effect in terms of striking the provisions or whatnot, the remedy that you want us to apply?

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Why should we do that?

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I mean, in general, we believe in finality of rulings that new law doesn't necessarily redound to the benefit of

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a person who was previously considered under it.

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So I'm just not sure why it matters that they've now changed their mind according to you.

[00:15:04] Speaker 05:
So the ministry, our position is not that the ministry has changed its mind.

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It hasn't changed its mind.

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Our position is that, and it's pretty ambiguous.

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The extradition order is ambiguous.

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Belgium thought, clearly thought, and that's apparent from this new decision, that it was limiting the extradition order

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grant of extradition to exclude these acts that he had already been tried for in Belgium.

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And the extradition order was somewhat ambiguous.

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It said that he was being extradited pursuant to the executor, pursuant.

[00:15:43] Speaker 03:
Can I ask you, if the order is ambiguous, I'm not sure it necessarily means that we ask the court

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for the answer, right?

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I mean, you can imagine a world in which the because this is a political process, I think you would concede that there seemed like there could be a number of options for construing an ambiguous extradition order, one of which is we turn to the diplomats and we say, can you please go ask the ministry what this means, since it isn't clear.

[00:16:15] Speaker 03:
One, I think, could be figuring out what Belgian courts actually do in terms of their construction of ambiguous law.

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So if we were to apply Belgian law, like what is their rule of construction when they confront ambiguous text?

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Or we could apply our own rules of construction as to how we address, which I think is somewhat what Judge Moss did in this case.

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We look at the text, is it clear or whatnot?

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So why are you suggesting we do get a fourth option, which is just ask the Belgian courts how they would interpret this particular provision?

[00:16:55] Speaker 05:
So, we're not saying that the treaty provision is ambiguous.

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We're saying that the extradition order the fact of the grant of extradition, so the 2011 ministerial order may have been and maybe it might have even been purposefully ambiguous but now we have.

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a final interpretation of the scope of the grant of extradition under the ministerial order.

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And that's coming from the courts or from the ministry?

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It is coming from both.

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I mean, the March 5th note and all of the Belgian state's pleadings in Belgium made clear that it

[00:17:42] Speaker 05:
judiciary is supreme, that it might have taken a different position in litigation, which happens here all the time when the DOJ takes a different position in litigation.

[00:17:55] Speaker 03:
What about the position it took in the actual diplomatic notes that it sent when it was clarifying what the order meant?

[00:18:02] Speaker 03:
That's not in litigation.

[00:18:03] Speaker 03:
It sent a note, didn't it?

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The ministry.

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The ministry

[00:18:08] Speaker 05:
The note that it sent in 2019, in November of 2019, it has explained in official statements was simply meant to convey that it had appealed the interpretation of article, that it had appealed the August 2019 decision and differs in its interpretation of

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Whether an offense based or fast fact based analysis should apply to Article five of the treaty but that's not what we're saying here that the minister never questioned that the.

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grant of extra, the court's final determination that the grant of extradition does not allow Mr. Trebelci to be prosecuted here for overt acts 23 through 26.

[00:19:00] Speaker 05:
Ms.

[00:19:01] Speaker 04:
Gatzel, did the ministry ever explicitly state that in any communication to the United States that those overt acts were excluded?

[00:19:11] Speaker 05:
The ministry never explicitly stated that the overt acts were included.

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So the ministry said that those overt acts could be used as facts or evidence, that that can be used as evidence to prove the charges in the United States, but the ministry has been ambiguous.

[00:19:35] Speaker 02:
Um, it has never stated that he can be convicted here for the conspiracy to bomb Kleinbrook or that the problem that I have though with all of this is that, you know, we heard this case in 2017 and it seems to me that the procedure whereby, um,

[00:20:02] Speaker 02:
Once the extradition is granted and the person is sent here, and the communications are made with the stipulations as to what the grounds will be for allowing the extradition, but that should be the end of it.

[00:20:22] Speaker 02:
We're four years later, and here we are trying to, you know, discern what these Belgian

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court decisions really mean?

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And whether there's a real dispute between the executive and the judiciary about what they meant with the extradition order?

[00:20:46] Speaker 02:
I mean, why should we, at this point, why should we really do anything other than just follow the law of the case doctrine and say, this has been decided?

[00:21:03] Speaker 05:
I mean, it's truly extraordinary that your sister court, the Brussels Court of Appeals has said to you, you misinterpreted the grant of extradition.

[00:21:17] Speaker 05:
You made a mistake the first time.

[00:21:20] Speaker 05:
That is significant and material cause to reopen the decision.

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But also there is no dispute

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In Belgium, that he cannot be convicted here that at a minimum over acts 23 through 26 were excluded because the ministry never disavowed the executor.

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order of enforcement in extraditing Mr. Trebelzi and the law also in Belgium is finally decided, like there is, it is clear under Belgian law that Article 5 requires a fact-based analysis.

[00:22:08] Speaker 05:
It's 100% clear.

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There is no other interpretation that can be made.

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The minister has relayed the court's final decision.

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So to the extent that this court did not recognize that or fully consider the final law in Belgium when considering what deference it was giving to the Belgian extradition decision and to

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And in basically not engaging in an analysis of what Article 5 means in deferring to what it thought was a reasonable interpretation, what the Belgian government has now told you is that that was not Belgian law.

[00:22:52] Speaker 05:
That was not a reasonable interpretation of the treaty under Belgian law.

[00:22:56] Speaker 04:
So if I could ask you a related question.

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Do you think that the Trebelzi decision in 2017 of this court, do you think that its jurisdictional holding is also, is law of the case for us?

[00:23:16] Speaker 04:
Yes.

[00:23:17] Speaker 05:
Deciding this appeal?

[00:23:19] Speaker 05:
Yes.

[00:23:19] Speaker 05:
There's been no question of jurisdiction in this case.

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Neither party has raised it.

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So it hasn't, and it hasn't been.

[00:23:26] Speaker 04:
But jurisdiction is something we always have to consider.

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to ensure that we have the authority to decide a case.

[00:23:32] Speaker 04:
But do you think that the previous panel's decision about jurisdiction is law of the case?

[00:23:37] Speaker 04:
I understand you don't think that the merits are law of the case, but do you think that jurisdictional holding is law of the case?

[00:23:48] Speaker 05:
We think the merits and the jurisdiction are law of the case in the sense that the court said we defer to Belgium.

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There's a presumption that the extradition order was proper unless there's some reason to rebut or think that it wasn't.

[00:24:04] Speaker 05:
Here, we have rebutted that presumption.

[00:24:07] Speaker 05:
So we're not challenging the law of the case.

[00:24:12] Speaker 05:
We are presenting facts that should alter the court's

[00:24:17] Speaker 05:
application of that law to the facts of this case.

[00:24:21] Speaker 05:
And in terms of jurisdiction, I mean, this is a double jeopardy issue.

[00:24:27] Speaker 05:
Mr. Trebelzi is here being tried for the same crimes that he was tried for in Belgium.

[00:24:33] Speaker 05:
The harm is the trial.

[00:24:35] Speaker 05:
We are pre-trial.

[00:24:37] Speaker 05:
And so jurisdiction is proper.

[00:24:40] Speaker 05:
And if the court has no further questions.

[00:24:46] Speaker 02:
All right, we'll hear from, any further questions?

[00:24:51] Speaker 02:
Yeah, thank you.

[00:24:52] Speaker 02:
All right, we'll hear from the government.

[00:24:55] Speaker 02:
We'll give you a couple minutes, everybody.

[00:24:58] Speaker 01:
Thank you very much, your honor.

[00:25:00] Speaker 01:
May it please the court, Peter Smith on behalf of the United States.

[00:25:04] Speaker 01:
This court already rejected appellant's challenge to his extradition, and there is no basis for upsetting the court's 2017 decision in this case.

[00:25:16] Speaker 01:
Appellant has a very high burden to meet under the law, the case doctrine as appellants counsel seem to recognize today.

[00:25:23] Speaker 01:
He has to show extraordinary circumstances.

[00:25:26] Speaker 01:
One example would be whether this court's opinion in 2017 were clearly erroneous, which it is not.

[00:25:35] Speaker 01:
This court held in 2017 that the extradition order itself was clear and that it clearly allowed appellant to be prosecuted on the US charges without limitation.

[00:25:47] Speaker 01:
The courts in Belgium have not withdrawn, retracted or modified that order of extradition in any way.

[00:25:57] Speaker 01:
The treaty is unchanged.

[00:25:59] Speaker 01:
The offenses are unchanged.

[00:26:02] Speaker 01:
The diplomatic notes sent by the government of Belgium to the United States expressing the view that appellant could be tried on all of the United States charges have not been withdrawn or modified in any way.

[00:26:19] Speaker 01:
Appellant's argument basically hinges on pleadings internal to Belgium, which were never directed to the United States.

[00:26:27] Speaker 01:
and two notes from Belgian prosecutors conveying Belgian court decisions.

[00:26:36] Speaker 03:
Neither- Can you speak to the exchange that Ms.

[00:26:39] Speaker 03:
Getzel and Judge Rao had about the Noz-Biz principle running against the extraditing state?

[00:26:48] Speaker 03:
What is the government's, United States government's view of extradition and the extent to which

[00:26:56] Speaker 03:
any potential mistakes about the extraditability, if that's a word, of the individual is something that can be remedied by this court.

[00:27:10] Speaker 01:
Your Honor, as the government pointed out, there are principles of comedy.

[00:27:14] Speaker 01:
In its brief, the principles of comedy

[00:27:17] Speaker 01:
would be that this court would not second guess or look behind the extradition decision or the grant of extradition to see whether Belgium violated its own laws, for example, or whether Belgium properly applied its laws.

[00:27:34] Speaker 03:
Well, what if they assume in a hypothetical that the ministry and the courts

[00:27:42] Speaker 03:
now come running, the Belgian ministry, the Belgian courts, they've extradited this person with the order that we have, and we receive a diplomatic note signed by the minister and the head of judicial officer that says we were wrong, wrong, wrong, so sorry.

[00:28:04] Speaker 03:
We don't think this person can be either extradited or that these charges can go forward.

[00:28:10] Speaker 03:
Is that something that

[00:28:12] Speaker 03:
How do we account for that or could we account for that?

[00:28:16] Speaker 01:
That would certainly be a harder case than the facts of this case.

[00:28:19] Speaker 01:
And one could take the position that there would be no change, meaning that once extradited, the Belgian government couldn't somehow undo its extradition.

[00:28:34] Speaker 01:
But in the hypothetical, I understand

[00:28:38] Speaker 01:
the Belgian executive branch, the Ministry of Justice, to be saying there was some error, there was some infirmity in extradition, which I guess would make it a harder case.

[00:28:49] Speaker 01:
The government hasn't argued that.

[00:28:54] Speaker 03:
Would it make it a non-justiciable case?

[00:28:56] Speaker 03:
Judge Rao suggests that at that point, there's no remedy.

[00:29:01] Speaker 03:
If extradition is done and it's over, there's no redressability.

[00:29:07] Speaker 01:
I think there is support for that view.

[00:29:09] Speaker 01:
I don't the government didn't expressly argue that in its pleadings.

[00:29:14] Speaker 01:
In this case, the government seemed to think that appellant would have some sort of recourse under the treaty, but he isn't entitled to dismissal of the indictment and he

[00:29:31] Speaker 01:
You know, the court's question is a hypothetical.

[00:29:35] Speaker 01:
It is not this case.

[00:29:37] Speaker 01:
What happened in this case is not that the executive branch has somehow tried to undo the extradition.

[00:29:43] Speaker 04:
Well, Mr. Smith, in the facts of this case, if dismissal is not a remedy, how are his claims redressable?

[00:29:56] Speaker 04:
Is there any redressability for Mr. Travelsi?

[00:29:59] Speaker 01:
I mean, one could take a strong position and say that under Casey and those sorts of authority that he doesn't, and the government didn't argue that in that way.

[00:30:09] Speaker 04:
I understand the government didn't argue it, but we do have an independent obligation to determine our jurisdiction.

[00:30:15] Speaker 01:
I guess I had always assumed that the court would, in applying the bilateral treaty, which is also the law of the United States, the treaty itself, that in applying the law,

[00:30:28] Speaker 01:
the treaty that it would be it would be able to reach the question of whether some acts were excluded, but that we didn't brief it that way.

[00:30:39] Speaker 01:
We didn't argue it that way.

[00:30:41] Speaker 01:
So I'm just sort of speaking off the top of my head.

[00:30:43] Speaker 01:
I don't.

[00:30:44] Speaker 01:
Well, are you?

[00:30:45] Speaker 02:
I think that I think to answer Judge Rao's question, the government

[00:30:54] Speaker 02:
If this were just the US prosecution that didn't have anything to do with extradition, and the government filed the same indictment, and the district court judge said, I'm going to strike over acts, you know, 23 through 26, because I don't believe that they are part of the same conspiracy.

[00:31:23] Speaker 02:
So I'm gonna strike those acts from the indictment.

[00:31:27] Speaker 02:
Under 3731, you could appeal that and we'd have jurisdiction over that interlocutory.

[00:31:36] Speaker 01:
Yes, I think, yes, that would be right.

[00:31:38] Speaker 01:
I think so.

[00:31:39] Speaker 02:
And then essentially what the same as what Trebelcy is saying here or the relief that he is asking for.

[00:31:49] Speaker 01:
I mean, you're saying by analogy that if it were a US case, right, he'd be able to obtain that relief.

[00:31:54] Speaker 01:
And I think we've always understood that to be the case.

[00:31:58] Speaker 01:
That's the way we briefed this case so far.

[00:32:01] Speaker 01:
That any relief he could get could be limited to striking those acts, but he can't get dismissal of the indictment.

[00:32:10] Speaker 01:
I think that was our position in our briefs.

[00:32:13] Speaker 03:
But not because it's not a remedy that you're saying, because he's not entitled to it under these circumstances, not because that's not something the court doesn't have the power to order.

[00:32:25] Speaker 01:
I think that's right.

[00:32:27] Speaker 01:
Although I think we also argued that dismissal of the indictment wasn't a remedy the court could grant for the harm he was alleging, which is a violation of the treaty in this particular way.

[00:32:41] Speaker 02:
But I mean,

[00:32:42] Speaker 02:
The government can take an interlocutory appeal under very limited circumstances, but one of them is if evidence is excluded.

[00:32:51] Speaker 02:
So if there's a criminal trial and the district court judge says, I'm not going to allow introduction of evidence concerning X, if it's important enough to the government and they believe that it's going to place their ability to obtain a conviction in jeopardy, it can take an interlocutory appeal

[00:33:13] Speaker 02:
of that ruling, excluding evidence, and we have jurisdiction to hear that, right?

[00:33:19] Speaker 01:
You would, and I guess where this case differs is that appellants' rights here are limited to the bilateral treaty between the United States and Belgium.

[00:33:31] Speaker 01:
Although it's akin to a double jeopardy claim, it's not a double jeopardy claim under the US Constitution.

[00:33:37] Speaker 01:
It's a treaty-based claim.

[00:33:38] Speaker 01:
And the Belgian government is a separate sovereign.

[00:33:41] Speaker 01:
So there's no real double jeopardy bar.

[00:33:45] Speaker 01:
The relief that appellant could obtain runs solely from the treaty.

[00:33:51] Speaker 04:
So I mean, I agree with Judge Wilkins that

[00:33:56] Speaker 04:
you know, an interlocutory appeal here.

[00:33:58] Speaker 04:
You know, we may well have jurisdiction for that, but the question is whether Mr. Trebelci has an injury that's cognizable under the treaty.

[00:34:08] Speaker 04:
As you say, the only basis for his claim at this point is his treaty, are his treaty rights.

[00:34:15] Speaker 04:
And I'm not sure how article five runs against the US government.

[00:34:22] Speaker 04:
It may run against the Belgian government as the extraditing state.

[00:34:28] Speaker 04:
But I'm not sure how Article 5 runs against the US government.

[00:34:31] Speaker 04:
And I'm not sure how the US government would have caused his harm under Article 5, which he claims is being unlawfully extradited by Belgium.

[00:34:44] Speaker 04:
So perhaps you could speak to that.

[00:34:46] Speaker 01:
Yeah, I mean, I take the court's point and it's certainly a reasonable position.

[00:34:49] Speaker 01:
And I understand the court's focus on the granting of extradition on the requested state, which is Belgium.

[00:34:57] Speaker 01:
But I was simply saying the government didn't make that argument in its briefs.

[00:35:03] Speaker 03:
Isn't the answer that to the extent that an extradition occurs pursuant to certain conditions that are noted

[00:35:15] Speaker 03:
by the request, they say we're allowing this extradition, but in many cases, not in Toto, right?

[00:35:23] Speaker 03:
You can't execute him, for example, I think was one of the conditions in this very case, right?

[00:35:31] Speaker 03:
So that to the extent then that the receiving state violates that condition,

[00:35:39] Speaker 03:
I'm wondering whether the person isn't injured and has a cognizable injury as Judge Rao points out under the treaty in so far as extradition order which was issued under the treaty has specific conditions that the receiving state is violated.

[00:35:58] Speaker 03:
So if we had, for example, in this case a very clear extradition order that says you cannot prosecute him

[00:36:07] Speaker 03:
for offenses 23, 24 through 26, or whatever it is, and that everybody was in agreement, the minister spelled it out very clearly, and the United States proceeded to do so.

[00:36:21] Speaker 03:
I don't know whether we would say that is not a cognizable injury from the point of the United States for a person trying to get, bring a claim in this court.

[00:36:34] Speaker 03:
They could say under the treaty,

[00:36:36] Speaker 03:
These are the conditions, they're being violated, they run to the original state, however, you are a party to that treaty and you agreed upon accepting his extradition, not to proceed in a certain way.

[00:36:52] Speaker 03:
Am I right about that?

[00:36:53] Speaker 01:
Yes, and the short answer to your question, your honor, is that that would be a different kind of claim.

[00:36:59] Speaker 01:
That will be a specialty claim where the argument would be that the prosecution somehow extended beyond the grant of extradition.

[00:37:08] Speaker 01:
Specialty is a doctrine that is not subject to interlocutory appeal.

[00:37:13] Speaker 01:
And this is explained in the government's brief.

[00:37:16] Speaker 01:
So appellants interlocutory appeal, which is this appeal, is limited

[00:37:22] Speaker 01:
Article five of the treaty his double jeopardy type claim so that in the courts question or hypothetical where something extend where the where the US government was somehow not complying with the grand facts tradition that would be a specialty claim like, for example,

[00:37:42] Speaker 01:
we filed charges and sought appellants execution in the court's example or we did we filed new charges that weren't covered in the extradition order that those would be specialty claims.

[00:37:54] Speaker 03:
I see, but you would, we would ultimately have jurisdiction if the prosecution occurred and he was what convicted or not, then he could bring it.

[00:38:02] Speaker 03:
It's just a matter of interlocutory versus later.

[00:38:05] Speaker 03:
It's not right.

[00:38:06] Speaker 01:
That would never be, that would be part of his direct.

[00:38:09] Speaker 01:
Exactly.

[00:38:09] Speaker 01:
He'd be part of his direct appeal.

[00:38:11] Speaker 01:
He could say, you know, Hey, they charged me.

[00:38:13] Speaker 01:
They said they were charging me with conspiracy, but they also added these five other counts that weren't conspiracy.

[00:38:19] Speaker 01:
And so that would be part of his direct appeal following his conviction.

[00:38:23] Speaker 04:
There are lots of cases adjudicating those types of specialty claims under treaties.

[00:38:31] Speaker 04:
Are you aware of any similar, are you aware of any case where someone has successfully brought up prior prosecution or non-beast claim

[00:38:41] Speaker 04:
after being extradited to the United States.

[00:38:43] Speaker 01:
I'm not, Your Honor.

[00:38:44] Speaker 01:
And the government's brief says expressly that at least framed narrowly in the way that a Palin is raising this claim there, we were not able to find any such case.

[00:38:56] Speaker 04:
I was not able to find any such case either.

[00:39:03] Speaker 01:
If the court has no further questions, I would urge the court to affirm the judgment of the district court.

[00:39:08] Speaker 01:
Thank you very much.

[00:39:15] Speaker 02:
All right, I think you were out of time, but we'll give you two minutes.

[00:39:19] Speaker 05:
Thank you.

[00:39:22] Speaker 05:
There may be no such case because normally countries don't prosecute people for the same thing twice.

[00:39:32] Speaker 05:
So double jeopardy has not really been an issue.

[00:39:35] Speaker 05:
None of the cases that are referring to speciality claims, they're also sort of entwined with these claims of dual criminality.

[00:39:46] Speaker 05:
the here the exclusion on extradition was specifically grounded in article five of the treaty it's a double jeopardy claim the reason that the that the kingdom of belgium granted his extradition not for everything allowed him to be extradited here but excluded over acts 23 through 26 are because

[00:40:13] Speaker 05:
charging him and convicting him and trying him for those overt acts violate Article Five of the treaty and so that is the right that Mr. Trebelzi is seeking to vindicate.

[00:40:25] Speaker 05:
In addition, I just want to note that, I mean, this is a domestic criminal prosecution and the right under the treaty is

[00:40:34] Speaker 05:
the right not to be tried, the double jeopardy right that both parties to a bilateral treaty have agreed upon is Mr. Trebelzi's and Supreme Court case law is clear on that under Rauscher, that the right in ears to the person who is a beneficiary of the treaty and that the treaty is our law.

[00:40:57] Speaker 05:
So all we are doing is asking the court, this court to enforce

[00:41:03] Speaker 05:
the grant of extradition and the treaty, and to enforce Mr. Trebelzi's right not to be tried twice for the same thing.

[00:41:12] Speaker 05:
We ask the court to, at a minimum, order that overt Acts 23 through 26 be stricken from the indictment.

[00:41:22] Speaker 02:
Thank you.

[00:41:23] Speaker 02:
We'll take the matter under advice.