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United States v. Barinas

United States Court of Appeals, Second Circuit

July 28, 2017

UNITED STATES OF AMERICA, Appellee,
v.
EDUARDO BARINAS, Defendant-Appellant. [*]

          Argued: April 24, 2017

         Appeal from a 2016 judgment of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, finding that defendant violated conditions of supervised release imposed on him upon his narcotics trafficking conviction in 1997 in the present case, E.D.N.Y. 95-CR-00621 ("Barinas I"), and sentencing him to imprisonment for one year and one day, to be served consecutively to the sentence imposed on him in 2016--following his extradition to the United States and conviction on a new narcotics trafficking charge--in United States v. Barinas, No. 08-CR-772 (D.N.J. Mar. 28, 2016) ("Barinas II"). The district court found that defendant violated the terms of his supervised release by (1) failing to report to the probation office as directed, (2) leaving, without permission, the district in which he was to be supervised, and (3) committing the crime of which he was convicted in Barinas II. On appeal, defendant contends that because he was extradited to the United States specifically to face the charges in Barinas II, the district court's adjudication of supervised-release-violation charges contravened the principle of specialty and that, in any event, the narcotics trafficking crime of which he was convicted in Barinas II could not properly be the basis for a finding of supervised-release violation because he committed that crime after his term of supervision was scheduled to expire. We conclude that defendant lacks prudential standing to raise a rule-of-specialty challenge and that his other challenge lacks merit because his supervised-release term was tolled while he was a fugitive.

          MICHAEL T. KEILTY, Assistant United States Attorney, Brooklyn, New York (Robert L. Capers, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee.

          SAMUEL I. JACOBSON, Assistant Federal Defender, Brooklyn, New York (Barry D. Leiwant, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York, on the brief), for Defendant-Appellant.

          Before: KEARSE, CALABRESI, and CABRANES, Circuit Judges. [*]

          KEARSE, Circuit Judge.

         Defendant Eduardo Barinas, who in 1997 was convicted in the present case, E.D.N.Y. 95-CR-00621 ("Barinas I"), of conspiring to possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 and was sentenced principally to time-served and a five-year term of supervised release, appeals from a June 2016 judgment of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, revoking his supervised release and sentencing him to imprisonment for one year and one day, to be served consecutively to the sentence imposed on him in 2016--following his extradition to the United States and conviction on new narcotics trafficking charges--in United States v. Barinas, No. 08-CR-772 (D.N.J. Mar. 28, 2016) ("Barinas II"). The district court found that Barinas had violated the terms of his supervised release by (1) failing to report to the United States Probation Department ("Probation") as directed, (2) leaving, without permission, the district in which he was to be supervised, and (3) committing the crime of which he was convicted in Barinas II. On appeal, Barinas contends principally that because he was extradited to the United States specifically to face the Barinas II charges, the district court's adjudication of charges of supervised-release violation contravened the principle of specialty, which generally requires a country seeking extradition to adhere to limitations placed on prosecution by the surrendering country, see, e.g., United States v. Suarez, 791 F.3d 363, 366 (2d Cir. 2015) ("Suarez"), cert. denied, 136 S.Ct. 800 (2016). He also argues that the narcotics trafficking crime of which he was convicted in Barinas II could not properly be the basis for a finding of supervised-release violation because he committed that crime after his term of supervision was scheduled to expire. We conclude that Barinas lacks prudential standing to raise a rule-of-specialty challenge and that his claim that his supervised-release term ended prior to his Barinas II crime lacks merit because that term was tolled while he was a fugitive. We thus affirm the judgment.

         I. BACKGROUND

         The relevant facts are not in dispute. In Barinas I, following his plea of guilty, Barinas was convicted of conspiring to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846 and was sentenced in March 1997 principally to time-served and a five-year term of supervised release. As a mandatory condition of supervised release, Barinas was forbidden to commit any further federal or state crime, see 18 U.S.C. § 3583(d). The standard conditions of supervised release included the requirements that he report to his Probation officer as directed and that he not leave the judicial district in which he was subject to supervision unless he received permission from his Probation officer or the court.

         A. The July 1997 Charge of Supervised-Release Violation

         Originally Barinas was to be supervised by the Eastern District of New York ("EDNY") Probation office; after he failed to report to that office, Probation learned that he was living at his sister's apartment in Yonkers, New York, which is within the Southern District of New York ("SDNY"). Accordingly, in April 1997 his immediate supervision was transferred to the SDNY Probation office. Some two months later, however, the SDNY Probation office notified the EDNY Probation office that Barinas had not reported as required since June 13, 1997. Probation then learned from Barinas's sister that Barinas had left her home in mid-June after an argument and had never returned. Probation was unable to determine Barinas's whereabouts.

         In July 1997, the EDNY Probation office filed a petition in the district court, describing the above events and charging Barinas with failing to report to Probation as required. (See Violation of Supervised Release Report dated July 30, 1997 ("1997 Violation Report").) On August 1, at the EDNY Probation office's request, the court issued a warrant for Barinas's arrest.

         Barinas, a citizen of the Dominican Republic and aware of that arrest warrant, left the United States in 1997. (See Supplement to the Violation of Supervised Release Report, dated April 13, 2016 ("Supplemental Violation Report" or "2016 Violation Report"), at 2 (citing Barinas II presentence report describing Barinas's statements to Probation in the District of New Jersey ("DNJ")).) He did not return until he was extradited from the Dominican Republic in 2013 (see Part I.B. below).

         B. Barinas's 2013 Extradition and His 2016 DNJ Conviction

         In late 2007, the United States received information that Barinas was in the Dominican Republic and was conspiring to ship cocaine into the United States. Following assistance from confidential informants, shipments were intercepted, and in 2008 Barinas was indicted by a DNJ grand jury, in Barinas II, on three substantive or conspiracy counts with regard to the importation of cocaine into the United States, see 21 U.S.C. §§ 952, 960(a)(1), 960(b)(1)(B), 960(b)(2)(B), and 963, and 18 U.S.C. § 2. In 2009, pursuant to a 1909 extradition treaty between the United States and the Dominican Republic, see Convention Between the United States and the Dominican Republic for the Extradition of Criminals, June 19, 1909, 36 Stat. 2468 ("1909 Treaty" or "Treaty"), the United States formally requested that the Dominican Republic extradite Barinas to the United States to face those charges (see Diplomatic Note No. 268 from the Embassy of the United States of America, Santo Domingo, to the Secretariat of State for Foreign Relations of the Dominican Republic dated September 3, 2009 ("Diplomatic Note" or "Note")).

         The Note stated that Barinas was "wanted to stand trial in the District of New Jersey for narcotics offenses" and listed the three counts alleged in the Barinas II indictment (Diplomatic Note at 2), and it recited the basic factual allegations underlying that indictment (see id. at 3). An accompanying affidavit by an Assistant United States Attorney summarized the investigation leading to the DNJ indictment. (See Affidavit in Support of Request for Extradition dated June 25, 2009.) It included descriptions of (a) statements by Barinas, as reported to law enforcement authorities by a confidential informant in the Dominican Republic ("CI-DR"), that Barinas was planning to ship cocaine from the Dominican Republic to the United States to be received by Barinas's contact in New York (see id. ¶¶ 23-25); (b) the cooperation of CI-DR and of another confidential informant in New Jersey ("CI-NJ"), including recorded telephone conversations between CI-NJ and Barinas (see id. ¶¶ 23-34); (c) the arrests, following a series of controlled deliveries, of Barinas's New York contact and two other coconspirators (see id. ¶¶ 33-39); and (d) the guilty pleas of those three coconspirators (see id. ¶ 40). Neither the Diplomatic Note nor the affidavit mentioned the Barinas I conviction or the warrant for Barinas's arrest on the charge of violation of supervised release in Barinas I.

         Barinas was arrested in the Dominican Republic in July 2013 and was extradited to the United States that September. In November 2015, after the filing of a one-count DNJ superseding information, he pleaded guilty to conspiring to import cocaine into the United States in violation of 21 U.S.C. § 963. In March 2016, the Barinas II court sentenced Barinas principally to 78 months' imprisonment, to be followed by a three-year term of supervised release.

         C. The 2016 Violation Report and 2016 Proceedings in EDNY

         In April 2016, the EDNY Probation office filed its Supplemental Violation Report, adding to the charges asserted in its 1997 Violation Report, based on information that had emerged during the DNJ prosecution. In addition to the original charge of failure to report to Probation, the supplemental report charged Barinas with leaving the judicial district without the permission of the Probation officer or the court by traveling to the Dominican Republic (charge 2), and with committing another crime, i.e., the Barinas II narcotics importation conspiracy (charge 3).

         Barinas, represented by counsel, promptly moved to dismiss all three supervised-release-violation charges against him. He contended that the government's pursuit of any of those charges, since they were not mentioned in the extradition request, would violate the rule of specialty. He also noted that the second and ...


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