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I. Answer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IV. Reasons for Denying Colombia’s Extradition Complaint. . . . . . . . . . . . . . . . . . . . . . . 21
A. There is no subject-matter jurisdiction over the Complaint.. . . . . . . . . . . . . . . . . 21
1. The Complaint is not made under oath.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2. Colombia’s latest denial of a U.S. extradition request provoked an official
protest that is new evidence of the Treaty’s lack of force.. . . . . . . . . . . . . . . . 24
3. No one contends that the Treaty is “in full force and effect.”. . . . . . . . . . . . . 29
4. The Complaint does not invoke the Treaty.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. The United States lacks standing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
B. Colombia has failed to demonstrate dual criminality... . . . . . . . . . . . . . . . . . . . . . . 34
1. The embezzlement conviction would be unconstitutional because there is no
quid pro quo and because it suppresses protected speech.. . . . . . . . . . . . . . . 36
2. Section 641 requires willful conduct and the record does not permit the
inference that Dr. Arias willfully diverted any money.. . . . . . . . . . . . . . . . . . . 40
3. Section 666 is inapplicable because it does not apply to officials of the
national government.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4. The acts underlying the contracting-without-meeting-legal-obligations
charge are not proscribed by 18 U.S.C. § 1001.. . . . . . . . . . . . . . . . . . . . . . . . . 41
C. Whether the Colombian Minister of Agriculture correctly determined that
agreements between Colombia and the IICA were for “scientific or
technological activities” is a non-justiciable political question.. . . . . . . . . . . . . . . . 43
D. The Act-of-State Doctrine bars this Court from examining the legality of
Colombia’s agreements with the IICA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
E. Colombia has not established probable cause... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
F. Any doubt regarding the legality of the requested extradition must be resolved
against Colombia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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I. Answer
1. The allegations of ¶ 1 are admitted. Colombia is, indeed, the complainant in this
action, and the Assistant United States Attorney assigned to the case has been detailed to
the Republic of Colombia pursuant to the Extradition Treaty. The United States of America
is not a party to this action.
2. The allegations of ¶ 2 are denied. The Extradition Treaty Between the United
States of America and the Republic of Colombia, S. Treaty Doc. No. 97-8, was never lawfully
ratified by Colombia and therefore, by its own terms as well as under international and
domestic law, never entered into force anywhere.
3. The allegations of ¶ 3 are admitted in part. Colombia brought the instant
complaint pursuant only to its domestic law which, unlike U.S. law, allows extraditions in the
absence of a treaty.
4. The allegations of ¶ 4 are denied.
5. The allegations of ¶ 5 are denied.
6. There is no ¶ 6.
7. The allegations of ¶ 7 are admitted.
8. The allegation of ¶ 8 is admitted insofar as it pertains to personal (as
distinguished from subject-matter) jurisdiction.
9. The allegations of ¶ 9 are denied.
10. The allegations of ¶ 10 are denied.
11. The allegations of ¶ 11 are denied.
II. Parties
1. The relator in this action is Andres Arias Leiva. Dr. Arias has a Ph.D. with
honors in economics from the University of California at Los Angeles. After four years at
UCLA, he returned to Colombia and went to work for his country’s Ministry of Agriculture.
He rose to Minister of Agriculture under President Álvaro Uribe, who served two four-year
terms from 2002 to 2010 and enjoyed huge support at home and from the United States,
particularly for his aggressive and effective campaign against the FARC. On a state visit to

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Cartagena, Colombia, in 2004, President George W. Bush said about President Uribe:
“During the President’s tenure in office, he’s built an impressive record. Kidnappings in
Colombia are significantly down; terrorist attacks and homicides have declined; cocaine
seizures have risen dramatically. And since July of last year, dozens of leaders and financiers
of the FARC narco-terrorist organization had been killed or captured. President Uribe has
also reformed Colombia’s judicial system, and is aggressively fighting corruption.” 1
When term limits prevented President Uribe from running again, Dr. Arias quickly
emerged as the front-runner for the presidency. A scandal started by a magazine controlled
by the family of Juan Manuel Santos, who also sought the presidency, crippled Dr. Arias’
candidacy. Santos ultimately won the presidency. After being administratively cleared of any
wrongdoing by Colombian elections officials and the General Comptroller’s Office, Dr. Arias
emerged as the most serious challenger to the incumbent. President Santos’ Attorney
General then brought charges against Dr. Arias for acts he took in his official capacity as
Minister of Agriculture based on the same scandal. Dr. Arias was incarcerated, silencing an
important voice of dissent. The case was tried before what the Deputy Chief of the U.S.
Diplomatic Mission to Colombia called “the politicized Supreme Court”2 because that court
has original jurisdiction over charges against certain government officials. The court’s verdict
was timed to ensure that President Santos won his reelection bid. This gave Dr. Arias time
to make arrangements with the U.S. Embassy at Bogota to travel with his wife and two
young children to the United States to seek asylum. 3
Dr. Arias lived and worked openly for two years while his asylum application remained
pending. On the same day that President Santos’ controversial peace accord with the FARC
was finalized in Cuba, Dr. Arias was arrested on the instant Complaint. The peace accord was

Press Availability with President Bush and President Uribe of Colombia, U.S. DEP’T
OF STATE (22 Nov 2004) [].
Confidential communique from Brian A. Nichols (17 Nov 2009)

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subject to a popular referendum, and Colombian voters rejected it.4 President Santos has
moved forward with it anyway.
2. The identity of the complainant in this action remains unresolved. This makes
it impossible to determine whether there is an Article III case or controversy. When this
Court denied the motion to dismiss the complaint, it expressly declined to decide who the
complainant is, stating: “The issue of which country is bringing the extradition proceedings
is not dispositive to the Court’s ruling on the instant motion because, as set forth in this
Order, both the United States and Colombia are in agreement with respect to the validity of
the Extradition Treaty.”5 Jurisdiction, however, can not be established without knowing the
identity of the complainant because standing is a jurisdictional doctrine. 6
The complainant is the Republic of Colombia, as the Complaint itself says.7 Despite
dicta in many cases in which jurisdiction was unchallenged, all U.S. extradition cases are
brought on behalf of the requesting state because no one else has standing.8 The Supreme
Court has repeatedly made this clear.9 As the letter accompanying the submission of the

Colombia referendum: Voters reject Farc peace deal, BBC News (3 Oct 2016)
See DE59:3 n.2.
Town of Chester v. Laroe Estates, — S.Ct. —, No. 16-605, 2017 WL 2407473 (5 Jun
2017) (“For all relief sought, there must be a litigant with standing, whether that litigant
joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right.”); Bank of America
Corp. v. City of Miami, 137 S.Ct. 1296, 1302 (2017) (“To satisfy the Constitution’s restriction
of this Court’s jurisdiction to “Cases” and “Controversies,” Art. III, § 2, a plaintiff must
demonstrate constitutional standing. To do so, the plaintiff must show an injury in fact that
is fairly traceable to the defendant’s conduct and that is likely to be redressed by a favorable
judicial decision.”) (citations and quotation marks omitted).
DE1:1 ¶ 1 (“In this matter I act for and on behalf of the Government of Colombia
(‘Requesting State’).”).
§ 475 (“[In] the United States and Canada, the person sought may be arrested only ... on the
basis of a sworn complaint or other information properly supplied by an official of the
requesting state.”).
See, e.g., Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (stating that a federal
prosecutor brought the complaint on behalf of Mexico); Collins v. Miller, 252 U.S. 364, 366
(1920) (stating that “the British consul general at New Orleans” initiated the extradition

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Extradition Treaty Between the United States of America and the Republic of Colombia, S.
Treaty Doc. No. 97-8, to President Reagan explains, the United States Attorney’s Office has
appeared on behalf of Colombia only because the Treaty requires each country to furnish the
other with counsel in its courts: “We expect to continue the present practice under which
each country is represented in extradition proceedings by the other’s Justice Department.”10
Thus, Colombia “is represented by” the United States Attorney’s Office under the authority
of the Treaty.11
Nonetheless, counsel for Colombia has throughout this litigation sought to buttress
Colombia’s claims, as well as insulate the Complaint from dismissal, by contending that it is
brought by the United States.12 This obligates the Court to resolve the question of standing

proceeding and that “the consul general and Collins appeared by counsel” at the hearing);
Bingham v. Bradley, 241 U.S. 511, 512 (1916) (stating that extradition proceeding was
initiated “by the British Consul General at Chicago, applying on behalf of the government
of the Dominion of Canada”); Charlton v. Kelly, 229 U.S. 447, 448 (1913) (“The proceedings
for the extradition of the appellant were begun upon a complaint duly made by the Italian
vice-consul ... .”); Terlinden v. Ames, 184 U.S. 270, 282 (1902) (“In these proceedings the
appliction was made by the official representative of both the Empire and the Kingdom of
Prussia ... .”); Ornelas v. Ruiz, 161 U.S. 502, 506 (1896) (“The republic of Mexico applied for
the extradition of these petitioners by complaint made under oath by its consul ... . ... [A]nd,
as the government he represented was the real party interested in resisting the discharge,
the appeal was properly prosecuted by him on its behalf.”); Benson v. McMahon, 127 U.S.
457, 458 (1888) (stating that the extradition proceeding was instituted by the “consul general
of the republic of Mexico” and that “[t]he matter has been argued very fully before us by
counsel for the prisoner and for the Mexican government.”); see also Demjanjuk v.
Petrovsky, 776 F.2d 571, 575 (CA6 1985) (stating that the “United States Attorney for the
Northern District of Ohio, acting on behalf of the State of Israel,” brought the extradition
complaint); Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (CA5 1971) (“On October
6, 1970, in the appropriate District Court of the United States, Peru filed its complaint in
extradition ... .”).
Letter of Submittal from Deputy Secretary of State William Clark to President
Ronald Reagan (9 May 1981).
The Treaty provides: “The Requested State ... shall provide for legal representation
to protect the interests of the Requesting State before the competent authorities of the
Requested State.” Extradition Treaty, art. 9(7).
See DE82:1 (erroneously stating that “the United States filed” the Complaint and
that “[t]he United States respectfully submits this memorandum ...”).

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before proceeding further because federal subject-matter jurisdiction must be established

before a federal court can do anything else in a case.13 The party invoking a court’s
jurisdiction has the burden of proving it exists.14
III. Facts
During President Álvaro Uribe’s administration (2002–2010), Colombia was
transformed from a failed state, plagued by narco-terrorism, into a safe and prosperous
democracy and emerging economy with a vigorous middle class, falling unemployment,
decreasing poverty levels, and outstanding levels of private investment.15 President Uribe’s
successful policies to combat crime, terrorism, and drug trafficking had such popular support
that, in May 2006, he was reelected in a landslide, after the Constitutional Court16 (to be
distinguished from the Supreme Court of Justice17) ruled in favor of a constitutional
amendment allowing for presidential reelection, which had been prohibited until then.
President Uribe’s reelection was comparable to President Franklin D. Roosevelt’s
landslide reelection to a second term in 1936. FDR won 60.8% of the popular vote in 1936. In
2006, President Uribe won 62% of the vote, the largest victory in Colombian history.
After Uribe’s reelection two important events began reshaping the dynamics of
Colombian politics. The then-president of the Supreme Court of Justice, Magistrate Yesid

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94–95 (1998)
(disapproving the doctrine of “hypothetical jurisdiction” and stating, “The requirement that
jurisdiction be established as a threshold matter ‘springs from the nature and limits of the
judicial power of the United States’ and is ‘inflexible and without exception.’”) (quoting
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
Steel, 523 U.S. at 103–04 (“This triad of injury in fact, causation, and redressability
constitutes the core of Article III’s case-or-controversy requirement, and the party invoking
federal jurisdiction bears the burden of establishing its existence.”) (footnote omitted).
See Jeremy McDermott, How President Alvaro Uribe changed Colombia, BBC
NEWS (4 Aug 2010) [].
The Constitutional Court of Colombia is the court of last resort for matters involving
interpretation of the republic’s constitution, with the power to decide the constitutionality of
The Colombian Supreme Court of Justice has three divisions — civil, labor, and
criminal — and is the highest court for legal, as opposed to constitutional, matters. The
presidency of the court rotates annually among the court’s 23 magistrates.

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Ramirez, accused President Uribe of favoring a constitutional reform subordinating the

Supreme Court of Justice to the Constitutional Court as payback for the Constitutional
Court’s ruling that allowed President Uribe’s reelection. Magistrate Ramirez publicly
described President Uribe as a tyrant or a despot,18 just as FDR’s political opponents
described him in the 1930s. The Supreme Court of Justice arrested 29 members of the
Colombian Congress (belonging to all parties), accusing them along with other members of
having received electoral support from paramilitary groups.19 In response, President Uribe
publicly denounced the relationships between several Supreme Court magistrates and drug
traffickers and money launderers.20 This exacerbated the Uribe Administration’s clash with
the judiciary, provoking the enmity of a significant group of Supreme Court magistrates,
especially after Congress opened an investigation of two magistrates with especially clear
ties to organized crime, one of whom was former Supreme Court President Yesid Ramirez.21
Further recriminations followed. For example, the new president of the Supreme
Court accused President Uribe of having called him to intercede for one of the senators who
had been arrested.22 President Uribe sued the Supreme Court president for slander.23 The

Al Paredon & Maria Isabel, ¿Como así que se les llenó la copa? SEMANA (23 Sep
2006) [].
Escándalo de la ‘parapolítica’ completó 51 congresistas involucrados y 29 presos,
EL TIEMPO (8 Apr 2008) [].
El supesto narcotraficante italiano Giogio Sale hizo 23 visitas al Palacio de
Justicia, EL TIEMPO (6 Dec 2006) [
3355395]; Tensión en Colombia por supuestos nexos de la justicia con el narcotráfico,
TELESUR (12 June 2006) [].
Investigan a ex presidentes de Corte Suprema de Justicia, EL ESPECTADOR (17 Sep
2008) [
corte-suprema-de-justicia]; Dos magistrados, a explicar relación con Giorgio Sale, EL
TIEMPO (18 Sep 2008) [].
Valencia Copete insiste en molestia del president de la República por indagatoria
a Mario Uribe, CARACOL RADIO (21 Jan 2008)
Valencia Copete designa abogados para defenderse del presidente Álvaro Uribe,
C A R A C O L R A D I O ( 2 8 J a n 2 0 0 8 )
[]; Uribe ratificó
demanda contra Valencia, EL MUNDO (22 Dec 2016)

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Supreme Court accused the Uribe Administration of wiretapping several magistrates,24 and
issued a series of rulings undermining President Uribe’s unilateral extraditions to the United
States. In response, in 2009 Uribe’s interior minister invited the United States to negotiate
a new extradition treaty.25 The Supreme Court then unconstitutionally refused to confirm any
of President Uribe’s nominees for Attorney General for the remainder of his administration.26
The United States’ contemporaneous observations corroborate this. Deputy Chief of
Mission at the U.S. Embassy in Bogota Brian Nichols (now U.S. Ambassador to Peru)27
reported to the U.S. State Department in November 2009 that the Supreme Court of Justice
was politically opposed to the Uribe Administration. He wrote: “Arrayed against Uribe’s
formidable popular support are the weak but not irrelevant political opposition, the media
and intelligentsia, and the politicized Supreme Court.”28 The court’s political maneuvering
extended to influencing prosecutorial decisions by refusing to select an Attorney General, as
Deputy Chief Nichols reported: “Additionally, the magistrates have effectively co-opted the
supposedly independent Attorney General’s Office by refusing to select an Uribe candidate
from a three-name list. Keeping the Attorney General in an interim state, and filling his
organization with officials from the court system, has allowed the Court to focus the Attorney

2 4
Las ‘chuza-DAS’, SEMANA (19 Dec 2009)
¿Un nuevo tratado de extradición con Estados Unidos? SEMANA (9 Jun 2009)
Después de 14 salas la Corte Suprema no elige fiscal, CARARCOL RADIO (1 July 2010)
[]; Cero y van
dieciocho y la Corte Suprema no elige Fiscal, CARACOL RADIO (8 Dec 2010)
U.S. Dep’t of State, Bureau of Public Affairs, Biographies, Brian Nichols
Confidential communique from Brian A. Nichols (17 Nov 2009)

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General on key investigations against Uribe and the government.”29 Thus, the U.S. State
Department has known all along that the court that convicted Dr. Arias was politicized and
co-opted the prosecutorial authority of the country to attack the Uribe Administration.
The U.S. State Department was also aware at the time that Dr. Arias was a specific
target of these politically-motivated prosecutions: “The clear majority of Colombians prefer
Uribe for his focus on security and his steady hand at the helm. Uribe equals certainty for
most Colombians. However, scandals continue to plague the President and may continue to
shave some points off his approval ratings. The most immediate scandal concerns rich
Colombians receiving subsidies from a Ministry of Agriculture program, though former
agriculture minister and current presidential candidate Andres Felipe Arias seems fated to
bare [sic] the brunt.”30 This awareness explains why, a few years later, the U.S. Embassy
would help Dr. Arias come to the United States to seek political asylum.
After Juan Manuel Santos was sworn in as president in 2010, he rescinded President
Uribe’s list of nominees for Attorney General (in contravention of what he promised during
the campaign) and submitted his own.31 One month later, the Supreme Court named Viviane
Morales the country’s Attorney General.32 Morales’ husband was allied with guerilla and
paramilitary groups and drug cartels.33 As expected, she abused her position as Attorney
General to systematically persecute former members of the Uribe Administration and

Presidente Santos no combiará la terna para fiscal, EL ESPECTADOR (22 Sep 2010)
articulo-225603]; Elección de Fiscal: La Corte tiene ahora la palabra, EL ESPECTADOR (3
Nov 2010) [
Vivianne Morales Hoyos, nueva Fiscal de la Nación, SEMANA (2 Dec 2010)
Fiscalía capturó a Carlos Alonso Lucio, CARACOL RADIO (19 Jul 2000)
[]; Carlos Alonso
Lucio fue contratado por las AUC, asegura ‘Don Berna,’ EL TIEMPO (17 Feb 2012)

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members of Uribe’s family. As U.S. Deputy Chief Nichols had presaged in his official
communique, the politicized Supreme Court facilitated this. In February 2012, the Colombian
Council of State, the tribunal of last resort over administrative law issues, declared the
appointment of Attorney General Morales unconstitutional.34
She was succeeded by Eduardo Montealegre Lynett, who continued to target Uribe
Administration officials.35 Among the Uribe associates who have been subjected to politically
motivated investigations, detentions or prosecutions are: Uribe family members Santiago
Uribe, Tomás Uribe, and Jerónimo Uribe; the former High Commissioner for Peace of
Colombia under President Uribe, Luis Carlos Restrepo; the former chief of Colombia’s
Administrative Department of Security, Maria del Pilar Hurtado; the former Colombian
ambassador to the Organization of American States, Luis Alfonso Hoyos; Uribe’s vice
president, Francisco Santos; former Chiefs of Staff Alberto Velasquez and Bernardo Moreno;
the former Minister of Health, Diego Palacio; the former Minister of the Treasury, Oscar
Ivan Zuluaga; and the former Minister of Agriculture and 2010 presidential candidate,
Andrés Felipe Arias. 36
The politicized nature of the Supreme Court and of these prosecutions was laid bare
in 2015 when a recording of a discussion among Supreme Court magistrates made during the
trial of Uribe’s Minster of Health was released. Five magistrates participated in the
conversation and stated that the court needed to decide cases “without dissent and based on

¿Por qué se cayó la elección de la fiscal Viviane Morales?, SEMANA (28 Feb 2012)
Terminó la era de Eduardo Montealegre, SEMANA (13 Mar 2016)
montealegre/465326]; Análisis Ley del Montes: La justicia politizada de Eduardo
Montealegre, EL HERALDO (6 Mar 2016) [
El círculo de Uribe, cada vez más condenadoí, LA SILLA VACIA (16 Apr 2015)
[]; Las
batallas perdidas del uribismo en la justicia, EL TIEMPO (19 Apr 2015)

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political convenience.” They stated that, in addition to the law, they needed to take into
account “the political factor.”37
In 2002, having completed his Ph.D. in economics at UCLA, Andres F. Arias was
recruited into the economic team of the newly elected first Uribe Administration. Two years
later, Dr. Arias was named Vice Minister of Agriculture to lead the sensitive agricultural
aspects of the United States-Colombia Free Trade Agreement negotiations.38 In 2005,
President Uribe appointed Dr. Arias Minister of Agriculture, making him responsible for
concluding all aspects of the negotiations and implementing the resulting Free Trade
To prepare Colombia’s agricultural sector for the challenges of increasingly liberalized
trade between the two countries, the Uribe Administration developed a program called Agro
Ingreso Seguro or Safe Agricultural Income. AIS offered a wide variety of subsidy options
to Colombian agricultural producers, including one conditioned on the installation of an
irrigation system, to increase productivity. To implement this irrigation project and to
guarantee its transparency, the Ministry of Agriculture sought the support and collaboration
of the Organization of American States’ Inter-American Institute for Cooperation on
Founded in 1942, the IICA is an international organization with 34 member countries
in the Americas and the Caribbean, including the United States and Canada, plus 18

Los audios de la ‘Mata Hari’ que Diego Palacios reveló a la Corte, EL TIEMPO (21
Oct 2015) []; Mauricio Vargas,
La Corte que se torció, EL TIEMPO (1 Nov 2015)
Listo equipo del Agro para TLC, EL TIEMPO (31 Mar 2004)
See U.S. House of Representatives Ways and Means Committee, Report on Trade
Mis s i on to Colombia, Ecuador, and Peru, No. 109-6 (Sep 2005)

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permanent observers, including Israel, Japan, Egypt, and the European Union.40 Its mission
is “[t]o encourage, promote and support our Member States in their efforts to achieve
agricultural development and rural well-being through international technical cooperation
of excellence.”41
Between 1993 and 2005, Colombia’s Ministry of Agriculture entered into scientific and
technological agreements with IICA some 132 times. This precedent of collaboration led Juan
Camilo Salazar, then director of AIS, to suggest the IICA as a natural partner for operating
and managing the irrigation subsidy. Thus, the IICA provided Colombia support for the
irrigation project in 2007, 2008, and 2009. These cooperation agreements did not entail
Colombia paying the IICA to provide goods or services. Rather, the agreements were more
like joint venture agreements in that both Colombia and the IICA contributed resources
toward the common goal of modernizing the Colombian agricultural sector.
AIS operated successfully, providing support to over 380,000 agricultural producers
in Colombia and contributing to the recovery of 2.5 million acres of productive land, much of
it from guerrillas and drug traffickers. The program was highly praised by members of the
agriculture sector, including those representing small landowners. As a result, Dr. Arias
became one of the most popular members of the cabinet.42 Then-Minister of Defense Juan
Manuel Santos, in contrast, was among the least popular cabinet members.43 Santos’ enmity
toward Dr. Arias escalated after President Uribe publicly revealed his preference that Dr.
Arias succeed him as president. 44

Colombia misrepresents the IICA as a “private company.” DE82:5. This
misstatement is surprising given that the United States of America is a member of IICA, has
done many projects with IICA, and is presumably aware of what it is.
IICA, Who are we? [].
El ranking de los ministros, E L T IEMPO (12 Aug 2007)
Empresarios, divididos en apoyo a los ministros, PORTAFOLIO (3 Aug 2007)
Se agitó la campaña del 2010 por guiño de Álvaro Uribe a Andrés Felipe Arias, EL
TIEMPO (8 Sep 2007) [].

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In February 2009, Dr. Arias resigned as Minister of Agriculture to run for president
on the platform of continuing the policies of President Uribe, who could not constitutionally
seek re-election. Shortly after, Santos resigned as Minister of Defense to run against Dr.
Arias. As Uribe’s chosen successor, Arias was extremely popular and became an early
favorite both in overall polls and in the polls for the Conservative Party nomination.45 It soon
became clear that if Dr. Arias became the Conservative Party nominee, Santos would have
no chance of winning election.
In late 2009, Revista Cambio, a Colombian magazine published by a Santos-family-
controlled company, reported that a handful of wealthy farmers were partitioning their lands
so as to increase the irrigation subsidies that they were entitled to under the AIS.46 Dr. Arias’
political adversaries, especially his rivals in the Conservative Party primaries, capitalized on
the scandal and falsely accused him of having intentionally favored wealthy families with the
AIS subsidy to obtain political favors and campaign financing. Because of the scandal, which
was fueled by Santos-family-owned newspaper El Tiempo, Dr. Arias lost the nomination by
a narrow margin47.
Running on the same popular platform as President Uribe, President Santos won the
2010 election. By early 2011, he had radically shifted his policy agenda. He advocated
negotiations with the FARC. He befriended dictators Hugo Chavez and Fidel Castro, and
he reneged on an agreement with the United States to allow several military bases to operate

Una encuesta de Yanhaas da como favorito a la presidencia a Andrés Felipe Arias,
EL ESPECTADOR (11 Feb 2009) [
Operación Magdalena, EL TIEMPO (7 Oct 2009)
Noemí Sanín competirá por la Presidencia al ganar las primarias conservadoras
NOTICIAS 24 (19 Mar 2010) [

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in Colombia.48 Dr. Arias was an especially vocal Santos critic,49 and he emerged as Santos’
chief political rival for the presidency in future elections, as people identified him as a true
standard bearer of the popular Uribe platform, which Santos abandoned.
On June 13, 2011, Attorney General Viviane Morales announced that Dr. Arias would
be criminally charged. The indictment was presented at an initial hearing in July 2011 before
Magistrate Orlando Fierro Perdomo, who presided. Magistrate Fierro was a protégé and
close friend of Magistrate Yesid Ramirez, the former Supreme Court president who clashed
with President Uribe. Magistrate Fierro never recused himself and his friendship with
Magistrate Ramirez was disclosed only weeks later.
Dr. Arias was charged with entering into a contract without meeting the legal
requirements and with embezzlement for third parties. The crux of both charges was that
Minister Arias executed the cooperation agreements with IICA, which had been designated
as entailing “scientific or technological activities.” This designation exempted the agreements
from public bidding. Under the theory of prosecution, the “third parties” who benefitted from
the supposed embezzlement were the landowners who unlawfully partitioned their land to
qualify for more subsidies than they were entitled to. Dr. Arias was ordered incarcerated
pending trial and was not released for two years.
During the nationally televised initial hearing, Attorney General Morales disclosed
Dr. Arias’ personal information, including his home address, his telephone number, and the
identities of his wife and kids. More than just highly irregular, revealing this information was
clearly dangerous in Dr. Arias’ case. Because as Minister of Agriculture and as a presidential
candidate Dr. Arias opposed the guerillas, paramilitary groups, and drug traffickers, he
received many threats against his life. The disclosure of this personal information put his wife
and children in immediate danger.

El alejamiento de Colombia y EEUU, EL NUEVO HERALD (27 Nov 2010)
4 9
El Churchill criollo, SEMANA (19 Feb 2011)

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Because he had been a member of the presidential cabinet, Colombian law gave the
Supreme Court of Justice original jurisdiction over Dr. Arias’ trial. Dr. Arias’ trial formally
began in the Supreme Court on June 14, 2012, against the backdrop of fierce political
opposition to President Santos’ negotiations in Havana, Cuba, with the terrorist FARC group
as well as to his diplomatic, fiscal, and social policies. Former President Uribe had formed
a new political party and nominated former Minister of the Treasury Oscar Ivan Zuluaga to
challenge incumbent President Santos in the 2014 election. 50
Fearing that the presidential election would influence the fairness and outcome of his
trial, Dr. Arias applied in October 2013 to renew his U.S. visa at the U.S. Embassy in Bogota.
Given the political animus the Supreme Court of Justice had for Uribe and his
administration, the possibility of a conviction could not be ruled out, especially since it would
directly benefit President Santos’ reelection prospects. Thus, Dr. Arias needed a visa to have
the option of fleeing Colombia and seeking political asylum in the United States. The
Embassy, of course, had been aware of the political vendetta against Dr. Arias at least since
Deputy Chief Nichols sent his communique in November 2009.
Thus, at the time that the United States renewed Dr. Arias’ visa, the U.S. Embassy
was well aware that Dr. Arias was on trial and understood the political motivations
underlying the prosecution. It is inconceivable that U.S. Embassy personnel would help Dr.
Arias reach the United States unless they were satisfied that his prosecution was politically
motivated and fundamentally unfair.
In November 2013, Dr. Arias was summoned by the Political Section of the U.S.
Embassy. A few days later he met with Drew Blakeney, then Political Section Director of the
U.S. Embassy, Silvana del Valle Rodriguez, First Secretary for Political and Military Affairs,
and Federico Salcedo, Political Section Specialist. Dr. Arias informed the Political Section
of his intention to seek asylum in the United States.51 Mr. Blakeney acknowledged that the

Óscar Iván Zuluaga, candidato del Centro Democrático, NOTICIAS RCN (26 Oct
2013) [
See DE31:4.

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U.S. diplomatic mission was aware of incidents of judicial abuses, often at the Supreme Court,
against former officials who served under President Uribe. Specifically, Mr. Blakeney
mentioned three such officials: Dr. Arias, former Peace Commissioner Luis Carlos Restrepo,
who was then seeking asylum in Canada and who has since been granted asylum,52 and
Santiago Uribe, President Uribe’s brother, currently incarcerated for a crime that
supposedly occurred more than 20 years ago.
On February 11, 2014, during the closing arguments of the trial, the Inspector
General’s Office asked the Court to dismiss the charges, arguing that there was “no evidence
to support that Arias had the intent to misappropriate the resources of the AIS program.”53
The Inspector General also argued that the Attorney General’s evidence was at variance with
the charges; conflated Dr. Arias with the Ministry of Agriculture, assigning him individual
criminal liability for decisions and actions of other officials from the Ministry; and failed to
prove that Dr. Arias retained control over a program managed by IICA. 54
Dr. Arias’ trial concluded on February 25, 2014, but the Supreme Court postponed the
verdict until April 8, 2014.55 On April 7, the Supreme Court again postponed the verdict until
May 15, 2014,56 three months after the trial ended but only 10 days before the first round of
voting in the presidential election.

Joel Gillin, Canada grants asylum to Colombia’s former peace commissioner,
Procuraduría pide absolver a Andrés Felipe Arias, EL ESPECTADOR (11 Feb 2014)
Procuraduría pide absolver a Andrés Felipe Arias, EL UNIVERSAL ( 11 Feb 2014)
151316]; Procuraduría, que había sancionado a Arias por AIS, pidió absolverlo, EL TIEMPO
(11 Feb 2014) [].
Fallo contra Andrés F. Arias será el 8 de abril, EL NUEVO SIGLO (25 Feb 2014)
Aplazan para el 15 de mayo sentido del fallo a Andrés Felipe Arias, EL
C O L O M B I A N O ( 7 A p r 2 0 1 4 )

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By April 2014, Colombia had become extremely polarized as a result of the upcoming
election and the politically violent and crude confrontation between incumbent President
Santos and former President Uribe and his allies, involving mutual accusations of corruption.
Oscar Ivan Zuluaga, the candidate Uribe supported, began to gain ground in the polls.57
Fearful that the verdict’s postponement was indicative of pressure from the Santos
Administration upon the Supreme Court to convict Dr. Arias days before the election and,
thus, deal a fatal blow to Zuluaga’s campaign, Dr. Arias did two things. He visited the United
States on April 12, 2014, to deliver to his immigration attorney documentary evidence of the
anomalies surrounding his prosecution to support his asylum application. Then, he sought
another meeting with the Political Section of the U.S. Embassy, which took place during the
first half of 2014 at the Embassy and with the same attendees as the previous meeting. Dr.
Arias reiterated his intent to seek asylum. Mr. Blakeney informed that, although the
Department of Homeland Security would ultimately decide the asylum claim, DHS usually
would obtain the State Department’s opinion through the Embassy. Mr. Blakeney stated that
they would issue an opinion favorable to the asylum claim.
On May 9, 2014, something unexpected happened. The Administrative Tribunal of
Cundinamarca overturned a civil sanction the Inspector General had imposed on Oskar
Schroeder, who served under Dr. Arias as the Ministry of Agriculture’s Director of Legal
Affairs, for carelessly drafting and processing the same IICA agreements underlying the
criminal case against Dr. Arias.58 This meant that, according to the tribunal, not only was
there no criminal intent when the Ministry officials formalized the IICA cooperation
agreements, but also that the agreements did entail “scientific or technological activities” and
did not require a public bid.

Óscar Iván Zuluaga se le acerca a Santos, SEMANA (30 Apr 2014)
Decision No. 25000-23-42-000-2013-04511-00 of the Administrative Tribunal of
Cundinamarca (2d section) (9 May 2014) [].

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At the same time, all the polls indicated that Zuluaga had overtaken President Santos
and was going to proceed to a run-off election against the incumbent.59 That made convicting
Dr. Arias on May 15, 2014, politically useless to President Santos for two reasons. First, the
verdict would conflict with the Administrative Tribunal’s ruling, exposing it as the
illegitimate verdict of a politicized court. Second, there would likely be a run-off election in
all events.60 In fact, a guilty verdict at that moment could backfire on the Supreme Court and
on President Santos. That signaled to Dr. Arias that, if the court did not postpone the
impending verdict, he would be acquitted.
A few days before May 15, 2014, the Supreme Court postponed the verdict
indefinitely, affording the Santos Administration flexibility to time the verdict for maximal
advantage. This convinced Dr. Arias that the Supreme Court and the Executive Branch were
manipulating the trial politically to ensure that President Santos defeated Zuluaga.
Additional evidence of collusion surfaced on May 17, 2014, when the Attorney General’s
Office leaked a video supposedly showing that Zuluaga, his son David Zuluaga, and campaign
director Luis Alfonso Hoyos illegally hacked the e-mails of government and FARC
negotiators in Cuba in an attempt to sabotage the ongoing peace negotiations 61 A few days
later, the Zuluaga campaign produced an expert who opined that the video had been falsified.

Óscar Iván Zuluaga ganó en las dos últimas encuestas, HSB NOTICIAS (19 May
2014) [óscar-iván-zuluaga-ganó-en-las-dos-últimas-
Tumban fallo de Procuraduría contra exfuncionario del Ministerio de Agricultura,
W RADIO (23 May 2014) [
El video del ‘hacker’ y Zuluaga, S EMANA (17 May 2014)

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The Attorney General’s Office immediately responded with a press release saying the video
was genuine.62
On May 25, 2014, Zuluaga got the highest number of votes, followed by incumbent
President Santos.63 However, as the polls predicted, Zuluaga did not win more than half the
vote,64 precipitating a June 15, 2014, run-off.65 In the interim, the FARC hacking scandal
damaged Zuluaga’s campaign while Santos regained ground.66
On June 13, 2014, the Inspector General concluded a thorough, two-year investigation
of Dr. Arias and concluded that he had not used the AIS irrigation program to divert public
funds or otherwise misappropriate any money. 67 News of that report was eclipsed by leaks
from the Supreme Court, broadcast on television, that Dr. Arias would be convicted the
following week.68 The leak inflicted additional harm on Zuluaga’s candidacy and exerted
pressure on the Supreme Court magistrates to vote to convict Dr. Arias. The same afternoon,
the director of the National Protection Agency, who was responsible for providing protection
to Dr. Arias and his family, re-tweeted the false news that Dr. Arias had been found guilty.69

Fiscalía asegura que el video del ‘hacker’ y Zuluaga no fue alterado, EL HERALDO
(24 May 2014) [
Zuluaga gana primera vuelta, E L H ERLADO (26 May 2014)
Colombia, Presidental Election, First Round (25 May 2014)
Habrá segunda vuelta con Juan Manuel Santos; Ramírez, tercera, EL TIEMPO, (25
May 2014) [].
Leve ventaja de Santos en carrera con Zuluaga, EL TIEMPO (5 Jun 2014)
Procuraduría absolvió a Andrés Felipe Arias en proceso por enriquecimiento
i l í c i t o , E L E S P E C T A D O R ( 1 9 J u n 2 0 1 4 )
Aún no hay decisión sobre el caso Andrés Felipe Arias: Corte Suprema, EL PAIS
(13 Jun 2014) [
69 (13 Jun 2014).

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This was highly irregular not only because it interfered with the upcoming election but also
because it came from the official in charge of safeguarding Dr. Arias and his family.
Fearful for his and his family’s safety, and now fully convinced that the Santos
Administration manipulated the verdict to secure re-election, Dr. Arias contacted Mr.
Blakeney at the U.S. Embassy and informed him of his decision to seek asylum immediately.
Mr. Blakeney reiterated that the United States was well aware of his case and told him that
there was nothing precluding him and his family from traveling to the United States. Two
hours later, Ms. del Valle Rodriguez of the U.S. Embassy called Dr. Arias to confirm that he
was free to enter the United States of America.
Dr. Arias arrived in the United States on June 14, 2014. At that time, he was inspected
and admitted by an immigration officer. His wife and children arrived in this country on June
19, 2014, and were likewise inspected and admitted. On July 6, 2014, Dr. Arias emailed Ms.
Del Valle Rodriguez to inform the U.S. Embassy at Bogota that he had filed for asylum,
given the imminent unfair conviction. Ms. Del Valle Rodriguez acknowledged the information
and said they would be in touch.
On July 17, 2014, the Supreme Court of Justice of Colombia convicted Arias in
absentia and sentenced him to 17 years and five months in prison and a fine of
On September 5, 2014, Dr. Arias and his family officially received legal protection in
the United States as asylum seekers. Less than three weeks later, United States Citizenship
and Immigration Services scheduled an interview with the family for October 16, 2014.
However, just eight days before the interview was to take place, USCIS canceled it
indefinitely with no explanation.
Dr. Arias still fears reprisals from paramilitary and guerilla groups in Colombia for
his support of President Uribe’s hardline stance against these groups. After the Supreme
Court’s verdict, the terrorist group FARC began distributing pamphlets depicting Dr. Arias
and former President Uribe as criminals. Dr. Arias’ attorney in Colombia, Victor Mosquera,
received death threats for taking Dr. Arias’ case to international courts. Because of the

Case 1:16-mc-23468-UNA Document 85 Entered on FLSD Docket 06/23/2017 Page 21 of 59

seriousness of the threats, the United Nations High Commissioner Office for Human Rights
issued a letter requesting that the Colombian government afford Mr. Mosquera protection.
On August 23, 2016, the U.S. government, without allowing Dr. Arias to present his
asylum case to a USCIS asylum officer, complied with the extradition request of Colombia
and officially began the extradition proceedings. Dr. Arias was arrested on that date and
detained at the Federal Detention Center in Miami until he was released on bond on
November 17, 2016.70
The fact that the verdict was the result of a politicized prosecution meant to secure
President Santos’ election to the presidency is documented in expert witness affidavits,
letters from people with first-hand knowledge, numerous op-eds,71 affidavits from former
officials who also investigated the allegations, and even a chapter in acclaimed author Plinio
Apuleyo Mendoza’s recently published book on political persecution in Colombia. 72
IV. Reasons for Denying Colombia’s Extradition Complaint
A. There is no subject-matter jurisdiction over the Complaint.
According to the jurisdiction conferring statute, an extradition court’s jurisdiction
depends on whether “there is a treaty or convention for extradition between the United
States and” the requesting state.73 An extradition court is authorized to exercise jurisdiction
only “upon complaint made under oath ... .”74 Because “the party asserting federal

See, e.g., Jared Genser, The ignoble act of a Novel Laureate, WASH. TIMES (1 Feb
2017) [
laureate/]; Mary Anastasia O’Grady, Takedown of a Candidate, Bogotá Style, WALL STREET
J. (11 Sep 2016) [DE27-3]; see also Lia Fowler, Why the U.S. Should Care About Andres
Felipe Arias, DRUEZ INFO (17 Mar 2017) [
should-care-about-andres-felipe-arias/]; Mary Anastasia O’Grady, Santos Panics With the
Election of Trump, WALL STREET J. (13 Nov 2016) [
Plinio Apuleyo Mendoza, CÁRCEL O EXILIO (Editorial Planeta 2016)
18 U.S.C. § 3184.

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jurisdiction when it is challenged has the burden of establishing it,”75 Colombia must prove
that this Court has jurisdiction.
The statutory requirements for jurisdiction are not met on this record. First, the
Complaint is not made under oath as the statute requires. No Colombian official has sworn
to the assertions in it, including the claim that the Extradition Treaty is in full force and
effect. Second, Colombia again this month denied a U.S. extradition request, demonstrating
that the Extradition Treaty the Complaint relies upon is in force and prompting a written
protest from the U.S. Amabassador. Third, no one has stated that the Treaty is “in full force
and effect”76 in or for Colombia. Fourth, Colombia’s Complaint does not purport to rely on
the Treaty but only to be consistent with it. Finally, if the Court were to agree with the
United States Attorney’s Office that the United States is the complainant, then there is no
standing and, hence, no jurisdiction.
1. The Complaint is not made under oath.
Congress has authorized extradition courts to act only “upon complaint made under
oath ... .”77 In this case, no official of the Colombian government has sworn that the
allegations of the Complaint — including the indispensable allegation that “[t]here is an
extradition treaty in force between the United States and the Republic of Colombia”78 — are
true. Given that the conclusory diplomatic note submitted in support of Colombia’s invocation
of federal jurisdiction was not attributed to any accountable person, much less sworn, this is
more than a mere formality in this case.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006).
18 U.S.C. § 3184 (emphasis added).
DE1:1 ¶ 2.

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When a statute requires a sworn complaint, the requirement is jurisdictional.79 The

Complaint must be sworn to by a representative of the Republic of Colombia with personal
knowledge, as the Supreme Court has held: “All that is required by [§ 3184] is that a
complaint shall be made under oath. It may be made by any person acting under the
authority of the foreign government having knowledge of the facts, or, in the absence of such
person, by the official representative of the foreign government ... .”80 That person would
have to swear to the truth of the Complaint’s statement that “[t]here is an Extradition Treaty
is in force between the United States and the Republic of Colombia”81 notwithstanding the
fact that President Santos, the country’s highest executive officer, has publicly denied that
there is any extradition treaty in force: “We have an extradition agreement with Venezuela,
not with the United States.”82 Additionally, the person swearing to the allegations thereby
waives any diplomatic or other immunity for perjury because a “sworn complaint” means one
made under penalty of perjury.83 Thus, the government attorneys representing Colombia are
not qualified to attest to the Complaint’s allegations because they lack personal knowledge
and arguably have absolute prosecutorial immunity.84

See Madeja v. Olumpic Packers, 310 F.3d 628, 637 (CA9 2002) (“[C]ontrolling
precedent dictates that Appellants’ failure to verify their complaint deprived the district
court of in rem jurisdiction.”); United States v. $84,740 in U.S. Currency, 900 F.2d 1402, 1406
(CA9 1990) (dismissing complaint “[b]ecause verification is jurisdictional ... .”); United States
v. $38,000 in U.S. Currency, 816 F.2d 1538, 1547 (CA11 1987) (holding that jurisdictional
prerequisites must be satisfied “to the letter”); Pizani v. M/V Cotton Blossom, 669 F.2d 1084,
1090 (CA5 1982) (holding that Rule of Civil Procedure “requires the filing of a verified
complaint as a prerequisite to obtaining in rem jurisdiction” and reversing judgment on that
Grin v. Shine, 187 U.S. 181, 193 (1902).
DE1:1 ¶ 2.
Colombia confirms Makled to be extradited to Venezuela, EFE NEWS, (6 Apr 2011)
See 28 U.S.C. § 1746 (providing that a declarant’s statement that he agrees to expose
himself to “penalty of perjury” satisfies the requirement that a document be “sworn”); Banco
de España v. Federal Reserve Bank of New York, 114 F.2d 438, 445 (CA2 1938) (“It can be
assumed that if the Ambassador should refuse to submit to cross-examination, he would be
incompetent to testify to the matters set forth in his affidavit.”).
See generally Kalina v. Fletcher, 522 U.S. 118 (1997).

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Because the jurisdictional requirement of a sworn complaint has not been met, this
Court must dismiss the Complaint. There is no power to keep this case pending:
“‘Jurisdiction is power to declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dismissing the cause.’” 85
2. Colombia’s latest denial of a U.S. extradition request provoked an
official protest that is new evidence of the Treaty’s lack of force.
Early this month, The Miami Herald reported that Colombia’s Supreme Court of
Justice, the same court seeking Dr. Arias’ extradition, had refused yet another U.S.
extradition request, even while Colombia insists that the United States is obligated to grant
its own request. Cecilio Padron, a Miami resident and director of the Cuban American
National Foundation, was kidnaped in 2008. “Last month, it appeared that justice had caught
up with one of his kidnappers. Julio Enrique Lemos Moreno, a member of the Revolutionary
Armed Forces of Colombia, or FARC, was detained by Colombian authorities after he left
the safety of the concentration zone where he and other guerrillas had gathered amid a
historic peace deal. ... But on May 31, Colombia’s Supreme Court of Justice decided to release
Lemos rather than comply with an outstanding extradition request to the United States.”86
Lemos is charged in the Southern District of New York with taking an American
citizen hostage and conspiring to do so in violation of 18 U.S.C. § 1203.87 He and his cohorts
threatened to kill Mr. Padron unless his family paid a ransom, which they ultimately did. 88

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Ex
parte McCardle, 7 Wall (74 U.S.) 506, 514 (1868)).
Jim Wyss, The kidnapper of a Miami man was in custody in Colombia — then he
walked free, MIAMI HERALD (9 Jun 2017) [
See United States v. Julio Lemos Moreno, No. 09-CR-0109 (SDNY) [DE10].
See id.; Jim Wyss, The kidnapper of a Miami man was in custody in Colombia —
then he walked free, MIAMI HERALD (9 Jun 2017) [

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The U.S. Ambassador to Colombia was displeased. He wrote “a strongly worded letter
to Colombia’s Supreme Court released by Colombia’s RCN news.”89 The letter states: “[W]e
believe that this decision did not consider the gravity of the charge of kidnapping of an
American citizen that Lemos is facing. This was a merciless and inhumane crime against a
victim, an American citizen, residing in the United States. That the accused in this case is an
extremely dangerous person, charged in the United States Court for the Southern District
of New York with an exceedingly violent and criminal act, strongly suggests to our
government that this Court’s decision did not consider those factors.”90 Ambassador Kevin
Whitaker’s letter concludes: “Finally, I wish to inform the Court that my government will
continue pursuing this case to ensure that all legal means at our disposal are applied, with
the goal of ensuring that Lemos faces justice in the United States for the serious crimes with
which he is charged.” 91
Tellingly, even though the Ambassador refers to “all legal means,” his letter never
once mentions the Extradition Treaty, which specifically covers kidnapping.92 This is
because, as the U.S. Ambassador well knows and understands,93 the Treaty is not in force in
Colombia and Colombia never abides by it. If the Treaty were in force, the Ambassador
certainly would have made reference to it in a three-page letter detailing Lemos’ crimes, the
extradition proceedings, and the United States’ intent to pursue the case through “all legal

Jim Wyss, The kidnapper of a Miami man was in custody in Colombia — then he
walked free, MIAMI HERALD (9 Jun 2017) [
Letter from the Hon. Kevin Whitaker, U.S. Ambassador, to Magistrate Eugenio
Fernandez Carlier, President of the Criminal Cassation of the Supreme Court of Justice (7
Jun 2017) [] (appended).
Extradition Treaty app. ¶ 7 (listing kidnapping as an extraditable offense).
Ambassador Whitaker has publicly acknowledged that Colombia has no obligations
under the Treaty: “[I]f the Colombian government decides it is not convenient to extradite
them to the U.S., we’ll respect that.” US “will not press for FARC extraditions” from
Colombia, BBC NEWS (13 Oct 2015) [

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This latest rejection is only the latest Colombian denial of a U.S. extradition request
for serious crimes specifically enumerated in the Treaty. 94 The record in this case contains
many other examples, compiled from press reports and published federal court decisions, of
U.S. extradition requests that Colombia has denied but would have been obligated to grant
if the Treaty were in effect.95 Only the Colombian and United States governments know how
many U.S. requests Colombia has rebuffed.
In taking at face value Colombia’s representation, made in a diplomatic note, that the
Treaty is in force, this Court disregarded Colombia’s repeated denials of U.S. extradition
requests as “immaterial” because “[i]t is not out of the ordinary that a country, for a
multitude of reasons, refuses an extradition request.”96 However, Colombia does not deny
U.S. extradition requests “for a multitude of reasons.” Colombia denies U.S. extradition
requests for only one reason — Colombia never ratified the Treaty. That fact makes the
refusals of U.S. extradition requests not just material, but determinative.
That Colombia extradites many people to the United States does not change the
analysis because it does so only in its own unfettered discretion, not because it is obligated
to. As the Eleventh Circuit held in a related context, whether a country is complying with its
international legal obligations depends not merely on whether its conduct is consistent with

See, e.g., United States v. Murillo, 826 F.3d 152 (CA4 2016) (murder of a United
States officer [Treaty Offense No. 1]); United States v. Alvarado, 808 F.3d 474, 482 (CA11
2015) (providing weapons to terrorists [Treaty Offense No. 20]); United States v. Mosquera,
580 F. App’x 580 (CA9 2014) (misusing a Social Security number to get a car loan [Treaty
Offense No. 10]); Rodriguez v. United States, No. 11-2957, 2013 WL 6171618 (SDNY 25 Nov
2013) (homicide [Treaty Offense No. 1], illegal gun possession [Treaty Offense No. 20], theft
conspiracy [Treaty Offense Nos. 9, 10]).
See, e.g., DE68:1–2 (Colombia denied the extradition of Hemer Gonzalez-Rivas to
Middle District of Florida on 22 Feb 2017.); DE56:4–6 (Colombia extradited notorious drug
kingpin Walid Makled Garcia to Venezuela rather than the United States because, according
to President Santos, Colombia has “an extradition agreement with Venezuela, not with the
United States.”); DE39:2–3 (describing several extradition requests that Colombia denied).
DE59:7 (footnote omitted).

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compliance but also on its reasons.97 Colombia’s conduct is inconsistent with its insistence
that the Treaty is in force. As the Supreme Court held, the only purpose of an extradition
treaty is “to impose mutual obligations to surrender individuals in certain defined sets of
circumstances, following established procedures.” 98
If only one party is obliged to extradite fugitives, then there is no treaty in effect.99
The Eleventh Circuit confirmed this when it held in United States v. Valencia-Trujillo that
the rule of specialty does not apply to extraditions from Colombia because they are not made
under any treaty.100 The Eleventh Circuit’s finding that the Extradition Treaty is not in force
was not dicta101 but was an essential premise for the holding that the defendant had no
standing to raise any defenses under the Treaty. Valencia-Trujillo is binding and controlling
on the matter of this Court’s jurisdiction, as this Court noted at the hearing on the motion
to dismiss.102
Ambassador Whitaker’s reaction to Colombia’s refusal to extradite yet another FARC
member who committed an outrageous and violent crime against an American citizen shows

United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (CA11 2012) (“[T]here must
be a sense of legal obligation, or opinio juris sive necessitatis. In other words, a practice that
is generally followed but which states feel legally free to disregard does not contribute to
customary law; rather, there must be a sense of legal obligation.”) (quoting Buell v. Mitchell,
274 F.3d 337, 372 (CA6 2001)).
504 U.S. 655, 665 (1992) (emphasis added); accord RESTATEMENT (3RD) OF U.S.
FOREIGN RELATIONS LAW § 475 (“A state party to an extradition treaty is obligated to
comply with the request of another state party to that treaty to arrest and deliver a person”
wanted for trial or punishment.) (emphasis added).
See Extradition Treaty art. 1 (“Obligation to Extradite”).
573 F.3d 1171, 1181 (CA11 2009) (“Because Colombia’s extradition of Valencia-
Trujillo to the United States was not based on an extradition treaty between the two
countries, Valencia-Trujillo lacks standing to assert the rule of specialty.”).
Compare DE59:9 (“The statements in the aforementioned cases concerning the
validity of the Extradition Treaty constitute dicta and have no binding effect on this Court.”).
DE53:33 (THE COURT: “What about the Eleventh Circuit cases? ... [T]he courts have
clearly said there is no treaty in effect. And I presume that was because the government
there argued there was no treaty in effect because they did not want to limit what they could
prosecute those people for. How can you, in that case, come in and say there is no treaty and
in this case come in and say there is a treaty?”).

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why this Court should not have given Colombia’s self-serving diplomatic note as much weight
as it did. The Court summarized it jurisdictional holding this way: “In sum, the record
evidence establishes that it is the official position of the executive branches of the United
States and Colombia that the Extradition Treaty remains in full force and effect.”103 But, the
“official position of the executive branches” of the two countries is not the jurisdictional test.
Rather, the test for whether an extradition treaty is in force is whether the signatories’
conduct “evinces an intent that the nations continue to be bound by the extradition treaty.”104
A litigant’s unsigned, unsupported, and contradictory diplomatic note can not create federal
jurisdiction when that country completely repudiates all obligations under the Treaty. 105 If
the Treaty were in effect, Ambassador Whitaker’s long letter would have mentioned it.
Under the correct legal test, there is no federal jurisdiction. First, Colombia admits
that it processes no U.S. extradition requests under the Treaty.106 As the Supreme Court
held in Terlinden v. Ames more than a century ago, whether an extradition treaty is in effect
depends on whether the parties observe it by “frequently grant[ing]” extradition requests
“under the treaty.”107 Applying Terlinden, the Eleventh Circuit held in Kastnerova that the
extradition treaty between Czechoslovakia and the United States was in effect, noting that
it was “significant that the Czech Republic has previously sought extradition under the

DE59:11; see also DE59:10–11 (“[T]he executive branches of the United States and
Colombia have stated that it is the understanding of both sovereigns that the Extradition
Treaty is currently in effect. Thus, the Extradition Treaty remains in full force and effect.”).
Kastnerova v. United States, 365 F.3d 980, 986 (CA11 2004). This is not the same
thing as deciding “whether Colombia has been complying in good faith with its treaty
obligations.” DE59:8. The jurisdictional test is whether Colombia’s conduct demonstrates
that it agrees and accepts that it has any treaty obligations. The undisputed record clearly
shows that Colombia does not consider itself bound in any respect by the Treaty.
See Insurance Corp. of Ireland Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982) (“[N]o action of the parties can confer subject-matter jurisdiction upon a
federal court.”).
184 U.S. at 285; accord Kastnerova, 365 F.3d at 986.

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Treaty. Such conduct demonstrates the Czech Republic’s continued reliance on the
Treaty.”108 In contrast, it is undisputed that Colombia never observes the Treaty.
Nor does Colombia consider itself bound by the Treaty in any way. Colombia refuses
U.S. extradition requests, even for crimes specifically enumerated in the Treaty, in its
unfettered discretion because and only because it does not consider the Treaty operative at
all. Colombia continues to deny U.S. extradition requests, right up to the present moment,
drawing the ire of the U.S. Ambassador whose letter does not refer to the Treaty because
it does not exist. From these undisputed facts, it follows that there is no jurisdiction.
3. No one contends that the Treaty is “in full force and effect.”
Colombia’s anonymous diplomatic note affirms that Colombia’s highest court twice
held the legislation ratifying the Treaty unconstitutional,109 meaning that Colombia never
ratified the Treaty. By its own terms, then, the Treaty never entered into force anywhere.110
The note also affirms that, because there is no constitutional ratifying legislation, “the
extradition requests that the United States of America presents to Colombia cannot be
processed, neither granted or denied, in accordance to the Treaty of 1979,” but are processed

365 F.3d at 968.
DE54-1:8 (“The Law 27 of 1980, approbatory of the ‘Treaty of Extradition between
the Republic of Colombia and the United States of America,’ signed on September 14, 1979,
as well as the Law 68 of 1986, issued for the same purposes were declared unconstitutional
through sentences [probably should read ‘orders’] of the Supreme Court of Justice of
December 12, 1986, and June 25, 1987, respectively.”).
Extradition Treaty, art. 21(1) (stating that the Treaty is “subject to ratification”);
see also Baker v. Carr, 389 U.S. 186, 212 (1962) (stating that “a court can construe a treaty
[to determine whether it is in force] and may find it provides the answer”); El-Shifa
Pharmaceutical Industries Co v. United States, 607 F.3d 836, 842 (CADC 2010) (en banc)
(“[T]hat a case may involve the conduct of the nation’s foreign affairs does not necessarily
prevent a court from determining whether the Executive has exceeded the scope of
prescribed statutory authority or failed to obey the prohibition of a statute or treaty.”); Wang
v. Masaitis, 416 F.3d 992, 996–97 (CA9 2005) (holding that whether the United States could
enter into an extradition treaty with Hong Kong was a legal question and, hence, justiciable
and stating, “We review whether a constitutionally valid extradition treaty exists de novo.”);
Cheung v. United States, 213 F.3d 82, 89 (CA2 2000) (holding that whether the term “foreign
government” in 18 U.S.C. § 3184 includes the government of Hong Kong is a question of
statutory interpretation and, hence, justiciable).

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under domestic Colombian law.111 Nonetheless, the note asserts without authority or reason,
while the unratified Treaty has no legal effect with respect to Colombia, it binds the United
States: “The effects of the declaration of unconstitutionality of the approbatory laws of the
mentioned treaty are exclusively of internal nature and have the consequence that in the
Republic of Colombia the treaty cannot be applied, but they do not affect, the validity
thereof.”112 This is legal mumbo jumbo, unsupported by any authority whatsoever.
Far from confirming that the Treaty is “in full force and effect,” the note says that
Colombia neither considers it binding on it nor observes it in any way. Contrary to the State
Department legal advisor’s representation, the note is careful not to state that “the treaty
remains in force” or that Colombia “made its request for the extradition of Mr. Andres Felipe
Arias Leiva to the United States of America under the Treaty.”113 Rather, the note artfully
says only that the request “was submitted at the request of the Supreme Court of Justice of
Colombia with the understanding that the United States of America would process it based
on the Treaty of 1979 and that the extradition of Mr. Andres Felipe Arias Leiva would be
based on the same Treaty.”114 No reason for that “understanding” is given. The note
concludes that “the Republic of Colombia is confident that the extradition request of Mr.
Arias Leiva ... would be granted by the United States of America in accordance with the
Treaty ... .”115 Thus, the note says that Colombia expects the United States to observe the
Treaty even though Colombia totally abjures it.116 U.S. law does not allow that.

DE54-1:9 (emphasis added).
DE54-1:9 (emphasis added).
DE54-1:9 (emphasis added).
The diplomatic note does nothing more than repeat the argument that Colombia’s
counsel made in other filings in this case. Colombia has uniformly maintained that the Treaty
binds only the United States, that Colombia is not bound by it, that Colombia does not
observe it in any way, and that Colombia (unlike the United States) is not obligated to
extradite anyone to the United States. See, e.g., DE53:25 (“THE COURT: You are in agreement
that it is Colombia’s view that the Treaty is not in effect? AUSA EMERY: Correct, Your
Honor.”). No where in the record does it state that Colombia has any obligation to extradite
anyone under the Treaty, even though that is its principal provision. See Extradition Treaty,

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What Colombia “understands” or “is confident of” vis-a-vis United States law is
entirely beside the point. What is required is an unqualified statement from an accountable
Colombian official that the Treaty is in full force and effect under Colombian law and that
Colombia is therefore bound to comply with U.S. extradition requests, like the one for Julio
Lemos. No such statement appears in the record of this case, and there is therefore no
4. The Complaint does not invoke the Treaty.
Colombia does not clearly state that it is invoking this Court’s jurisdiction under the
Treaty. Instead, it artfully states: “Pursuant to its own domestic law and in accordance with
Articles 1, 2, and 9 of the Extradition Treaty, the Government of Colombia has asked the
Government of the United States, through diplomatic channels, for the extradition of Andres
Felipe Arias Leiva.”117 Thus, in its Complaint as well as in the diplomatic note, Colombia
claims to be acting consistently with but not under the authority of the Treaty. (Even that
is not true. Colombia’s ad hoc approach to extradition is not consistent with the treaty
because the only point of an extradition treaty is to create an obligation to extradite.118)
Because Colombia does not plainly and unequivocally invoke the Treaty, this Court
lacks jurisdiction. No country can request an extradition from the United States other than
under a mutual and reciprocal extradition treaty. “The right of a foreign power to demand
the extradition of one accused of crime and the correlative duty to surrender him exists only
when created by treaty; and in the United States, in the absence of statutory or treaty

art. 1 (“Obligation to Extradite”). The reciprocal obligation to extradite is known as the

“Basic Rule” of extradition law: “A state party to an extradition treaty is obligated to comply
with the request of another state party to that treaty to arrest and deliver a person” wanted
for trial or punishment. RESTATEMENT (3RD) OF U.S. FOREIGN RELATIONS LAW § 475.
DE1:1 ¶ 3 (emphasis added).
United States v. Alvarez-Machain, 504 U.S. 655, 665 (1992); RESTATEMENT (3RD)
OF U.S. FOREIGN RELATIONS LAW § 475 (“A state party to an extradition treaty is obligated
to comply with the request of another state party to that treaty to arrest and deliver a
person” wanted for trial or punishment.”) (emphasis added)

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provision therefor, no authority exists in any branch of the government to surrender a

fugitive criminal to a foreign government.” 119
5. The United States lacks standing.
If, as Colombia’s counsel insists, the United States is the complainant, there is no
jurisdiction because the United States can not establish its standing under Article III of the
U.S. Constitution. The United States has no standing because Dr. Arias has not committed
any crime within the U.S. government’s jurisdiction.120 The party “asserting federal
jurisdiction [is required] to carry the burden of establishing [its] standing under Article
III.”121 The United States has no legally cognizable interest in whether Dr. Arias serves his
17-year Colombian sentence for acts taken in Colombia in his official capacity as Minister of
Even if the United States believes that, for some reason, its foreign policy objectives
or relations would be advantaged if Dr. Arias were extradited, that would be insufficient to
confer Article III standing.122 Thus, the U.S. Supreme Court held that the mother of an
illegitimate child lacked standing to enjoin the discriminatory application of a Texas criminal
statute requiring parents to support only their legitimate children.123 The Court reasoned
that the mother’s injury was insufficiently direct and concrete to create standing. “[I]f
appellant were granted the requested relief, it would result only in the jailing of the child’s

Ramos v. Diaz, 179 F.Supp. 459, 460–61 (SD Fla. 1959) (emphasis added); see also
Terlinden, 184 U.S. at 280 (stating that extradition court had jurisdiction under the
extradition statute only “if there was a treaty”); Benson v. McMahon, 127 U.S. 457, 463
(1888) (referring to the extradition statute as the “act of congress conferring jurisdiction
upon the commissioner, or other examining officer”).
See United States v. Lopez-Vargas, 493 F.3d 1305, 1312 (CA11 2007) (holding there
generally is no federal jurisdiction over extraterritorial crimes).
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (footnote omitted).
Wittman v. Personhuballah, 136 S.Ct. 1732, 1737 (2016) (“When challenged by a
court (or by an opposing party) concerned about standing, the party invoking the court’s
jurisdiction cannot simply allege a nonobvious harm, without more.”) (citation omitted).
Linda R.S. v. Richard D., 410 U.S. 614, 617–18 (1973).

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father. The prospect that prosecution will, at least in the future, result in payment of support
can, at best, be termed only speculative.” 124
In the same way, any injury that the United States might incur if this Court held that
Dr. Arias can not be lawfully extradited is remote and speculative. No legally cognizable
interest of the United States will be vindicated if Dr. Arias serves a 17-year prison sentence
in Colombia.125 Even if there were such an interest, the nexus between its vindication and Dr.
Arias’ incarceration would be insufficiently direct to confer upon the United States standing
in this matter.126 “[T]he bare existence of an abstract injury meets only the first half of the
standing requirement. ‘The party who invokes judicial power must be able to show that he
has sustained or is immediately in danger of sustaining some direct injury ... .”127
In addition, the United States has other means to protect whatever interests it has in
whether Dr. Arias is extradited. This Court’s function is to determine whether Colombia’s
request for Dr. Arias’ extradition is in all aspects lawful and constitutional.128 The United
States can have no interest whatsoever in extraditing anyone illegally or extra-
constitutionally. It follows that any legitimate interests the United States has in whether Dr.

410 U.S. at 618.
Cf. Whitmore v. Arkansas, 495 U.S. 149, 156–57 (1990) (holding that the petitioner
lacked standing to challenge another prisoner’s death sentence, even if Arkansas had a
system of “comparative review in death penalty cases”)
Linda R.S., 410 U.S. at 619 (“[W]e hold that appellant has made an insufficient
showing of a direct nexus between the vindication of her interest [in the support of her child]
and the enforcement of the State’s criminal laws.”); compare Maine v. Taylor, 477 U.S. 131,
136 (1986) (holding that Maine, having intervened in a federal Lacey Act prosecution “with
‘all the rights of a party,’” had a substantial stake in the case) (“[I]f the judgment of the Court
of Appeals is left undisturbed, the State will be bound by the conclusive adjudication that its
import ban is unconstitutional. And although private parties, and perhaps even separate
sovereigns, have no legally cognizable interest in the prosecutorial decisions of the Federal
Government, a State clearly has a legitimate interest in the continued enforceability of its
own statutes.”) (citations omitted; emphasis added).
410 U.S. at 618 (quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)).
In re Metzger, 46 U.S. (5 How.) 176, 188–89 (1847) (“Whether the crime charged is
sufficiently proved, and comes within the treaty, are matters for judicial decision ... .”).

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Arias is ultimately extradited can be considered and acted upon by the Secretary of State if
and after the judiciary has finalized a determination of legality.
B. Colombia has failed to demonstrate dual criminality.
Colombia has the burden of proving dual criminality.129 Dual criminality can be proven
only by demonstrating that the conduct for which extradition is sought is proscribed by
specific legal provisions of the requesting state and of the requested state. While the
elements of the crime in the requesting state need not be identical to the elements of the
requested state’s analogous crime, the conduct allegedly committed must be clearly outlawed
by both provisions.130 Thus, the complainant must show that the relator’s acts meet the
elements of the specified offenses in each country, though the elements may differ, and
extradition courts necessarily and routinely compare the elements of the offenses to make
that determination.131
Colombia claims that Dr. Arias was convicted of “the offenses of Embezzlement for
Third Parties, in violation of Article 397 of the Colombian Criminal Code; and Conclusion of
Contract without Fulfilling Legal Requirements, in violation of Article 410 of the same
code.”132 Colombia asserts with no explanation that the Colombian offense of “embezzlement

United States v. Peterka, 307 F.Supp.2d 1344, 1349 (MD Fla. 2003) (“Dual
criminality is an essential element of the governments burden of proof to establish a basis for
extradition.”); In re Extradition of Maniero, 950 F.Supp. 290 (SD Cal. 1996) (same).
See Collins v. Loisel, 259 U.S. 309, 312 (1922) (“The law does not require that the
name by which the crime is described in the two countries shall be the same; nor that the
scope of the liability shall be coextensive, or, in other respects, the same in the two countries.
It is enough if the particular act charged is criminal in both jurisdictions.”); United States v.
Herbage, 850 F.2d 1463, 1465 (CA11 1988) (“[A]n individual will be extradited under a treaty
containing a double criminality provision only when his actions constitute an offense in both
the requesting and requested states.”).
See, e.g., In re Extradition of Batchelder, 494 F.Supp.2d 1302 (ND Fla. 2007)
(comparing elements of Canadian offenses of abduction of a person under 14, unlawful
confinement, and invitation to sexual touching with federal kidnaping statute and federal
abusive sexual contact statute); In re Petition of France for Extradition of Sauvage, 819
F.Supp. 896, 900–01 (CD Cal. 1993) (comparing elements of “the French swindling statute
and the American statutes prohibiting false advertising and theft”).
DE1:1–2 ¶ 4.

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for third parties” is analogous to, “for example,” embezzlement as defined by 18 U.SC. § 641
or theft concerning a program receiving federal funds as defined by 18 U.S.C. § 666.133 It
similarly asserts without any explanation that the Colombian crime of “conclusion of contract
without fulfilling legal requirements” is analogous to, “for example,” making false statements
to a federal agency as defined by 18 U.S.C. § 1001.134 These unsupported, conclusory
assertions are false.
Colombia has not met its burden of demonstrating dual criminality. As a threshold
matter, Colombia has not even definitively identified the federal statutes that Dr. Arias’
purported acts as Minister of Agriculture would have violated. Instead, Colombia coyly
suggests mere examples of federal statutes that might apply. To the extent that Colombia
is attempting to keep its options open to make new arguments about dual criminality in its
reply memorandum or some later filing, its litigation tactic violates the Fifth Amendment
right to due process of law. As the party with the burden of proof, Colombia must, at a
minimum, give the relator notice of those provisions of law on which it specifically relies. “No
principle of procedural due process is more clearly established than that notice of the specific
charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are
among the constitutional rights of every accused in a criminal proceeding in all courts, state
or federal.”135 This is true in criminal as well as quasi-criminal proceedings. 136

Cole v. Arkansas, 333 U.S. 196, 201 (1948) (emphasis added).
See Grey v. Netherland, 518 U.S. 152, 167–68 (1996) (“A defendant’s right to notice
of the charges against which he must defend is well established.”); Wolff v. McDonnell, 418
U.S. 539, 564 (1974) (“We hold that written notice of the charges must be given to the
disciplinary-action defendant in order to inform him of the charges and to enable him to
marshal the facts and prepare a defense.”); In re Ruffalo, 390 U.S. 544, (1968) (holding that,
because disbarment is punitive, an attorney facing disbarment “is accordingly entitled to
procedural due process, which includes fair notice of the charge.”); In re Oliver, 333 U.S. 257
(1948) (“A person’s right to reasonable notice of a charge against him, and an opportunity to
be heard in his defense—a right to his day in court—are basic in our system of jurisprudence
... .”).

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Colombia also has made no attempt to explain how Dr. Arias’ acts would satisfy the
elements of the illustrative federal statutes. Colombia’s burden is not met by simply pointing
to some federal statutes. It must explain how Dr. Arias’ acts would have been proscribed by
those statutes if they had been committed by the U.S. Secretary of Agriculture. In fact, they
would not have been. First, Dr. Arias’ conviction is incompatible with the U.S. Constitution
because it would violate the Due Process and Free Speech Clauses. Second, the acts ascribed
to Dr. Arias do not satisfy the elements of § 641 because Dr. Arias did not act willfully. Third,
§ 666 does not apply to federal officials at all, much less cabinet-level ones. Fourth, there is
no United States analogue for the Colombian crime of contracting improperly.
1. The embezzlement conviction would be unconstitutional because
there is no quid pro quo and because it suppresses protected speech.
The irrigation project of the AIS entailed expenditures of over US$91 million across
all of Colombia’s agricultural sector, and the IICA helped the Colombian government
administer the project. Colombia claims Dr. Arias committed a crime because he “allowed”
others to do three things: (1) “he allowed ... large farms to subdivide their lands” and “[t]his
allowed the large farms to apply for and receive multiple distributions of AIS subsidies for
a single property,” something “smaller farms could not” do; (2) “he allowed the allocation and
delivery of AIS subsidies to the same large farms”; and (3) “he allowed a purported ‘group
of experts’ reviewing AIS subsidy applications to reclassify applications submitted by the
larger farms ... to ensure their approval.”137 Colombia goes on to state that “a consulting firm”
stated in a report that “it was foreseeable that applicants” would subdivide their land to
“have access to greater benefits” under the AIS program.138 From this Colombia concludes
that, because Dr. Arias failed to prevent these others from committing fraud, he is guilty of
embezzlement. If brought in a United States court, a prosecution based on this theory would

DE82:8 (emphases added).
DE82:8. This report has not been provided. Without context, there is no way to
know whether Colombia is accurately representing its content.

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not survive a Due Process Clause or First Amendment challenge. If a conviction for the
relator’s alleged acts would violate the U.S. Constitution, extradition can not be certified.139
The Due Process Clause requires clear evidence of a quid pro quo before a high-
ranking government official can be prosecuted for discretionary acts, as the Supreme Court
recently held in McDonnell v. United States.140 The issue was whether the former governor
of Virginia “committed or agreed to commit an ‘official act’ in exchange for the loans and
gifts” from a wealthy constituent.141 The prosecution argued that “setting up a meeting,
hosting an event, or calling another official” constituted an “official act.”142 The Supreme
Court found that this theory made virtually everything a governor does an “official act.”143
After a five-week trial, the Justices unanimously overturned the conviction, “reject[ing] the
Government’s reading ... and adopt[ing] a more bounded interpretation of ‘official act.’”144 It
was not enough, the Court reasoned, for an “event, meeting, or speech [to be] related to a
pending question or matter.”145 The government had to show an unattenuated quid pro quo.
The record in this case does not satisfy this Fifth Amendment requirement. First,
Colombia makes no attempt to establish a temporal nexus between the purportedly nefarious
campaign contributions and Dr. Arias’ decision, as Minister, to involve IICA in the irrigation
project. The Supreme Court has made clear that due process requires that “the public official
agreed to perform an ‘official act’ at the time of the alleged quid pro quo.”146 Second,
Colombia’s theory of corruption is even broader than the one the Supreme Court rejected
in McDonnell as incompatible with the democratic process: “In the Government’s view,
nearly anything a public official accepts — from a campaign contribution to lunch — counts

In re Petition of France for Extradition of Sauvage, 819 F.Supp. 896, 902–04 (SD
Cal. 1993) (denying certification because “the First Amendment would preclude conviction
of Sauvage in the United States for fraud” under the evidence).
136 S.Ct. 2355 (2016).
Id. at 2365.
Id. at 2370.
Id. at 2370.
Id. at 2367–68.
Id. at 2370.
Id. at 2371 (emphasis added).

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as a quid; and nearly anything a public official does — from arranging a meeting to inviting
a guest to an event — counts as a quo.”147 The Court rejected this expansive reading because
it defied the statute’s context and purpose and raised due process issues. 148
Colombia’s theory, under any of three statutes it cites, distorts the law in the very
same way. Whether Dr. Arias should or should not have “allowed” large landholders to
subdivide their parcels to qualify for larger subsidies from a government program is exactly
the sort of political question courts do not decide. It makes no difference that the same large
landholders may have donated to Dr. Arias’ political campaign. Significantly, there are no
details about this in Colombia’s memorandum.149 As a matter of fact, only two people involved
in the fraudulent partitioning of land offered contributions to the Arias campaign. One was
for about US$3,500, while the other was for about US$3,000. Nothing in the record
establishes a direct link — the quid pro quo that McDonnell requires — between these
campaign contributions and Dr. Arias’ decision to involve a recognized intergovernmental
agricultural agency in a US$91 million irrigation project.
Even assuming that Dr. Arias had acted with specific intent — as opposed to merely
passively having “allowed” wealthy people to structure their holdings in the way most
advantageous to them, his acts would not be criminal in the United States. The Colombian
theory of prosecution is no different than arguing that a United States presidential or
congressional candidate who cuts rich people’s taxes is embezzling from the U.S. Treasury
because those same wealthy people donate money to his campaign. Tax cuts for the wealthy
may be immoral, shortsighted, unfair, and inequitable, but they are not criminal. And it is
common knowledge that wealthy people donate to politicians who promise to give them tax
cuts or other government benefits. Similarly, Colombia’s insinuation that returning political

Id. at 2372.
Id. at 2373.
It says only that “he received contributions for his Vice-presidential campaign from
donors in areas that received AIS subsidies.” DE82:9. First, Dr. Arias was campaigning for
his party’s presidential nomination. Second, it would be extraordinary if he had not received
donations from some “donors in areas that received AIS subsidies” given the project’s
national scale.

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contributions in the wake of a scandal is proof of culpability is baseless.150 Nothing is more

common than politicians returning campaign contributions to avoid being tainted by a
scandal.151 This does not provide any basis whatsoever for inferring culpability. 152
The absurdity of Dr. Arias’ prosecution underscores why McDonnell was unanimous.
McDonnell recognizes the reality that, in a democracy, politicians are expected to benefit
their constituents’ interests and constituents are expected to return the favor by donating
to the politicians whose positions align with their interests. Absent a direct quid pro quo of
official action traded for money, none of that is criminal. If that is a problem, the solution lies
at the ballot box, not in criminal courts.
There is a further constitutional obstacle to the Colombian theory of prosecution
because calling donations to a politician who implements policies that advantage his
supporters “embezzlement” violates the First Amendment. “[T]he First Amendment
generally prohibits the suppression of political speech based on the speaker’s identity.”153
This problem arises because no one has ever alleged that Dr. Arias was paid bribes for his
personal account. Rather, all that has been alleged is that his campaign received

DE82:8. In fact, contrary to Colombia’s assertion, the contributions were returned
in October 2009, five months before the primaries and 20 months before the Attorney
General charged Dr. Arias with any crime.
See, e.g., Franken Turns Back $41K in Donations From Boston Law Firm, US
NEWS & WORLD REPORT (8 Mar 2017) [
law-firm] (“U.S. Sen. Al Franken has turned over nearly $41,000 of campaign contributions
from a Boston law firm being investigated for improper donations.”); Carolyn Lochhead,
Politicians vow to return campaign cash to Wells Fargo, S.F. CHRON. (23 Sep 2016)
9240729.php] (“One member of Congress from the Bay Area says he will give back the
campaign contribution Wells Fargo sent to him and another says he’ll donate his to a
See generally Derek Willis, When Politicians Have to Return Money From the
Wrong People, N.Y. TIMES (22 Jun 2015) [
the-wrong-people-give-money-to-politicians.html] (“[F]ew campaigns make it a priority to
vet every donor, and the information supplied (name, address, employer and occupation)
sometimes says little about a donor’s political toxicity.”).
Citizens United v. FEC, 558 U.S. 310, 350 (2010).

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contributions from some people who benefitted by exploiting a loophole in a vast program he
administered — which was by all accounts a resounding success — as Minister of
Agriculture. Colombia has not made any effort to show that its prosecution is not an effort
to suppress political speech, and the record in fact shows that it is precisely that.
2. Section 641 requires willful conduct and the record does not permit
the inference that Dr. Arias willfully diverted any money.
Colombia’s theory of prosecution was that Dr. Arias is an embezzler because he
“allowed” others to commit fraud when he should have known, based on a consultant’s report,
that they might. This theory is problematic on its face because it attributes only passive, at
most careless, conduct to Dr. Arias.154 Dr. Arias’ purported acts would not satisfy the
elements of the federal embezzlement statute because § 641 requires a willful state of mind.
Colombia’s extradition request does not at all support that.
A violation of § 641 has three elements: “(1) that the money or property belonged to
the government; (2) that the defendant fraudulently appropriated the money or property to
his own use or the use of others; [and] (3) ... that the defendant did so knowingly and willfully
with the intent either temporarily or permanently to deprive the owner of the use of the
money or property.”155 Far from demonstrating a willful criminal act, Colombia’s Complaint
and memorandum describe, at worst, a negligent act. It is not even clear that negligence is
shown because negligence requires forseeability and the consultant’s report that supposedly
establishes that has not been produced. So, Dr. Arias’ conduct, as described by Colombia, is
at worst careless, not criminal.
3. Section 666 is inapplicable because it does not apply to officials of
the national government.
Section 666 applies only to thefts committed by “an agent of an organization, or of a
State, local or Indian tribal government, or any agency thereof” or bribes paid to such an
agent.156 Because it does not apply to any federal employee, no member of the United States

See DE82:8.
United States v. McRee, 7 F.3d 976, 980 (CA11 1993) (en banc).
18 U.S.C. § 666(a)(1) & (2).

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president’s cabinet could be prosecuted under § 666. Therefore, the statute does not establish
that Dr. Arias’ acts are crimes under federal law.
Colombia, like the United States, is a federal republic comprising 32 geographic sub-
divisions called “departments” (rather than states), each headed by governors who have
“autonomy in the handling of matters related to their jurisdiction and operate as entities
between the nation and the municipalities.”157 There are also five cities designated “districts”
— Bogota (the national capital), Cartagena, Barranquilla, Santa Marta, and Buenaventura
— that are specially administered (as the District of Colombia in the United States is)
“[b]ecause of their national importance.” 158
Because Dr. Arias was not employed by any of these regional governments but was
a cabinet-level minister in the national government, § 666 has no application to acts he
undertook as Colombia’s Minister of Agriculture. The Supreme Court has made it clear that
§ 666 does not apply to any federal employee, much less a member of the president’s cabinet,
expressly and unanimously holding that § 666 “was designed to extend federal bribery
prohibitions to bribes offered to state and local officials employed by agencies receiving
federal funds.”159
4. The acts underlying the contracting-without-meeting-legal-
obligations charge are not proscribed by 18 U.S.C. § 1001.
Title 18 U.S.C. § 1001 makes it a crime to make a false statement to a federal agency.
“To sustain a conviction for violation of 18 U.S.C. § 1001, the government must prove (1) that
a statement was made; (2) that it was false; (3) that it was material; (4) that it was made with
specific intent; and (5) that it was within the jurisdiction of an agency of the United States.”160
Article 410 of the Colombian Penal Code, which according to Colombia is somehow analogous
to § 1001, provides:

Colombia (official wesbite), Colombia is organized in 1123 municipalities, 32
departments and 5 districts (18 Jan 2017) [
Salinas v. United States, 522 U.S. 52, 58 (1997).
United States v. Calhoon, 97 F.3d 518, 523 (CA11 1996).

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Contract not meeting legal requirements. A public servant that by exercising

his or her functions is to process a contract without meeting the essential legal
requirements or performs or settles such contract without ascertaining the
meaning of such requirements shall be subject to from four (4) to twelve (12)
years in prison (today sixty-four to two hundred sixteen (216) months), a fine
... , and the disqualification from the exercise of public rights and duties ... .161
It is not remotely obvious how the Colombian and U.S. statutes overlap at all, and
Colombia has not hazarded any explanation. The Colombian statute does not in any way
relate to making false statements. Nothing about this provision entails making a statement,
much less a false and material one. It has to do with adhering to all the regulations governing
contracts. In the United States, that is not a crime. Nor is there any allegation that Dr. Arias
ever made any false statements. He is accused only of “allowing” others to partition large
parcels of land to qualify for higher subsidies than they would otherwise receive. That
conduct does not entail making any representation whatsoever.
The real crux of Colombia’s accusations are these assertions: “Despite the clear
guidelines set forth in Law 393 of 1991 and Law 0591 of 1991, Arias Leiva falsely designated
the administration of the AIS program as ‘scientific and technical’ in order to bypass the
lengthy public bidding process ... . ... The Supreme Court of Colombia found, however, that
none of the factors required under Colombian procurement laws were taken into account
when selecting IICA.”162 The problem with this is that the standards are so broad that calling
such a designation “false” is entirely meaningless.
Colombia has provided a translation of only a portion of Decree 591 of 1991; the
excerpt provided ends with the word “and.”163 The standards that do appear are as broad as
can be, defining “scientific or technological activities” to include research and development,
the creation of science and technology centers and research networks, the dissemination of
knowledge and advice, and “services related to the implementation of plans, ... inventory of

Extradition Documents at 648.
Extradition Packet at 693.

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land resources and land use planning, ... and ... .”164 The continuation of the list is not provided
but it is plainly broad enough to encompass a nationwide irrigation project. 165
The designation of the agreements with IICA as being for “scientific or technological
activities” is governed by such broad standards that it is impossible to say that an agreement
for an irrigation project is not of that type. Certainly, a federal prosecution on this theory
would never survive a due process challenge.
C. Whether the Colombian Minister of Agriculture correctly determined that
agreements between Colombia and the IICA were for “scientific or
technological activities” is a non-justiciable political question.
The factual basis underlying both of Dr. Arias’ convictions is that he, acting in his
official capacity as Minister of Agriculture, contracted with IICA to implement the AIS
irrigation project without a public bidding process. This was done pursuant to Article 24(d)
of the Colombian general statute for public procurement, Law 80 of 1993 and Law 1150 of
2007. Article 24(d) states that no public bidding process is required “[f]or the provision of
professional services or the execution of artwork that can only be commissioned to certain
individuals or legal persons or for the performance of direct scientific or technological
United States law recognizes that the Constitution commits to the political branches
certain policy decisions that courts are not institutionally equipped to second-guess. “We
have explained that a controversy ‘involves a political question ... where there is ‘a textually
demonstrable constitutional commitment of the issue to a coordinate political department;
or a lack of judicially discoverable and manageable standards for resolving it.’”167 Such
decisions are non-justiciable and can not be challenged in any court proceeding, including a

It is not self-evident how Decree 393 of 1991 is pertinent to this action or whether
the translation provided is complete. Colombia has not explained how this provision applies.
Article 24(d), Law 80 of 1993 [Extradition Documents at 665].
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (quoting Nixon v.
United States, 506 U.S. 224, 228 (1993)).

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criminal one.168 Dissatisfaction with such policy choices can be addressed only through the
political process.
Non-justiciability is not an affirmative defense but, rather, a constitutional doctrine
rooted in Article III of the Constitution and the doctrine of separation of powers.169 It applies
to bar judicial resolution of any political question even if Congress attempts to grant the
courts jurisdiction over it.170 It works to bar courts from deciding issues, in whatever case
they arise (including a criminal one), that either the Constitution or an Act of Congress
assigns for resolution to the Executive Branch or the Legislative Branch. The question in
such cases is whether the issues raised “turn on standards that defy judicial application, or
involve the exercise of a discretion demonstrably committed to the executive or legislature
... .”171
This doctrine would bar a prosecution against the U.S. Secretary of Agriculture for

See United States v. Munoz-Flores, 495 U.S. 385, 394 (1990) (“[The political-
question] doctrine is designed to restrain the Judiciary from inappropriate interference in
the business of the other branches of Government; the identity of the litigant is immaterial
to the presence of these concerns in a particular case.”) (discussing government’s argument
that a defendant’s claim regarding the constitutionality of a special assessment imposed
following a misdemeanor conviction was a non-justiciable political question); United States
v. Martinez, 904 F.2d 601, 601–02 (CA11 1990) (rejecting as a non-justiciable political
question the defendants’ claim that the item they exported in violations the Arms Export
Control Act should not have been classified as “inherently military in character”).
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998) (“We have
always taken [Article III of the Constitution] to mean cases and controversies of the sort
traditionally amenable to, and resolved by, the judicial process.”) (citation omitted); Baker
v. Carr, 369 U.S. 186, 210 (1962) (“The nonjusticiability of a political question is primarily a
function of the separation of powers.”); id. at 217 (stating that a finding of non-justiciability
amounts to a court’s rejection of a case “as ‘no law suit,’” i.e., a dismissal for failure to state
an Article III case or controversy); El-Shifa Pharmaceutical Industries Co v. United States,
607 F.3d 836, 840 (CADC 2010) (“That some governmental actions are beyond the reach of
the courts reflects the Constitution’s limitation of the ‘judicial power of the United States’ to
‘cases’ or ‘controversies.’”) (en banc).
Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972) (“Congress may not confer
jurisdiction on Art. III federal court ... to resolve ‘political questions,’ because suits of this
character are inconsistent with the judicial function under Art. III.”) (citation omitted).
Baker, 369 U.S. at 211.

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incorrectly determining that a nationwide irrigation project could better succeed with the
help of a recognized intergovernmental organization devoted to scientific and technological
progress in agriculture throughout the Americas. “[A]s this Court has often pointed out, the
judicial may not invade the legislative or executive departments so as to correct alleged
mistakes or wrongs arising from asserted abuse of discretion.”172 Colombian law specifically
delegated to the Minister of Agriculture the discretion to enter into agreements without
public bidding whenever they entailed “the performance of direct scientific or technological
activities.”173 No federal court would ever sit to decide whether the U.S. Secretary of
Agriculture abused his discretion in making such a determination because no court is better
positioned to decide that than the executive branch officers entrusted with such decisions.
“Where the performance of a ‘duty’ is left to the discretion and good judgment of an executive
officer, the judiciary will not compel the exercise of his discretion one way or the other, for
to do so would be to take over the office.” 174
Thus, the Supreme Court held in American Electric Power Co. v. Connecticut that
federal courts can not “set limits on greenhouse gas emissions in the face of a law
empowering EPA to set the same limits ... .”175 The Court reasoned: “It is altogether fitting
that Congress designated an expert agency, here, EPA, as best suited to serve as primary
regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the
job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges
lack the scientific, economic, and technological resources an agency can utilize in coping with
issues of this order.” In the same way, only the cabinet officer who heads a sovereign nation’s
agriculture department, together with his subordinates, is equipped to “do the job” of
modernizing that nation’s agricultural sector to prepare it to enter into a free trade
agreement with the world’s largest and wealthiest economy. No court is institutionally

Dalton v. Specter, 511 U.S. 462, 475 (1994) (quoting Dakota Central Telephone Co.
v. South Dakota ex rel. Payne, 250 U.S. 163, 184 (1919)).
Article 24(d), Law 80 of 1993 [Extradition Documents at 665].
Baker, 369 U.S. at 245 (Douglas, J., concurring) (citation omitted).
131 S.Ct. 2527, 2540 (2011) (citation omitted).

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capable of second-guessing that.

Similarly, the Eleventh Circuit held that the Executive Branch’s decision to place a
device for descrambling pay-TV signals on the United States Munitions List, making it
unlawful to export without a license, was a political question.176 “The question whether a
particular item should have been placed on the Munitions List possesses nearly every trait
that the Supreme Court has enumerated traditionally renders a question ‘political.’ No
satisfactory or manageable standards exist for judicial determination of the issue ... . Neither
the courts nor the parties are privy to the reports of the intelligence services on which this
decision, or decisions like it, may have been based.” 177
The same is true of the Ministry of Agriculture’s determination that agreements made
to obtain international expertise on a nationwide irrigation project was “for the performance
of direct scientific or technological activities.”178 Like setting limits on greenhouse gases or
determining what devices are munitions, the decision that an agreement is “for” the scientific
expertise of an established international organization dedicated to promoting agriculture in
this hemisphere has every indicia of a non-justiciable policy determination.
First, Colombia has not articulated any judicially manageable standards by which a
court could determine whether the IICA’s contribution to the irrigation project was
“scientific or technological.” In other words, the Colombian statute permitting collaboration
with IICA without public bidding placed no “identifiable textual limits”179 on Dr. Arias’
discretion as Minister of Agriculture. Colombia has provided a translation of the standards
governing “contracts entered into by the Nation” for “scientific and technological activities”;
the excerpt provided ends with the word “and.”180 However, it is plain from the list provided
that it is not one that provides “identifiable textual limits” on the Minister of Agriculture’s

United States v. Martinez, 904 F.2d 601, 601 (CA11 1990) (“Holding that the political
question doctrine renders the propriety of an item’s placement on the Munitions List a non-
justiciable issue in Federal court, we affirm.”).
904 F.2d at 602.
Article 24(d), Law 80 of 1993 [Extradition Documents at 665].
Nixon v. United States, 506 U.S. 224, 238 (1993)
Extradition Packet at 693.

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discretion to execute agreements between Colombia and the IICA. The standards are as
broad as can be, defining “scientific or technological activities” to include research and
development, the creation of science and technology centers and research networks, the
dissemination of knowledge and advice, and “services related to the implementation of plans,
... inventory of land resources and land use planning, ... and ... .”181 The translation provided
ends there.
Where the relevant legal provision does not draw such limits, courts can not
distinguish what is lawful from what is unlawful and the matter is non-justiciable. Thus, the
Supreme Court held that challenges to the procedures the Senate creates for “try[ing]”
impeachments are non-justiciable political questions because the word “try” is not sufficiently
specific to create judicially enforceable standards: “[U]se of the word ‘try’ in the first
sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially
manageable standard of review of the Senate’s actions ... .”182 The same is true of the phrase
“for ... scientific and technological activities” in the Colombian code. There is no “judicially
manageable” way for a court to decide whether a nationwide agricultural project entailed a
sufficient degree of “scientific or technological activities” to come within the provision.
Given the IICA’s exclusively agricultural mission, it seems a foregone conclusion that
every agreement it enters is “for scientific or technological activities,” which would explain
why Colombia (like many nations in the Americas) has frequently partnered with the IICA.
For example, this year, the U.S. Department of Agriculture partnered with IICA to train “59
professionals in Peru and Colombia to comply with new export requirements for processed
food established by the United States government.” 183 How would any United States court
go about deciding whether that agreement was “for ... scientific and technological activities”?

Nixon, 506 U.S. at 230.
See Peru and Colombia begin preparations to comply with new requirements for
e x p or t ing food t o t he U. S., IICA press release (8 Jun 2017)

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The phrase is a quintessential example of one lacking “judicially manageable standards” or

“identifiable textual limits.” Consequently, Dr. Arias’ discretionary acts as Minister of
Agriculture relying on this provision could never result in a criminal conviction under United
States law.
Second, the judiciary lacks the scientific and economic expertise needed to make such
determinations as well as the resources to digest and understand all the information that
goes into making them.184 This conclusion is all the more inescapable when one considers the
enormity of the task confronting Dr. Arias, a political neophyte who had earned his Ph.D. just
three years before being named Minister of Agriculture. Colombia needed to modernize as
quickly as it could to prepare its agricultural sector to compete in and with the United States’
agricultural sector. How best to do that is quintessentially a policy determination that can
not be resolved by courts. “The political question doctrine excludes from judicial review those
controversies which revolve around policy choices and value determinations constitutionally
committed for resolution to the halls of Congress or the confines of the Executive Branch.
The Judiciary is particularly ill suited to make such decisions, as ‘courts are fundamentally
underequipped to formulate national policies or develop standards for matters not legal in
nature.’”185 No United States court would ever undertake to decide whether the U.S.
Secretary of Agriculture’s decision to partner with IICA on a national project was “for ...
scientific or technological activities” because courts are not equipped to decide such issues.
Determining whether Minister Arias’ policy choices were correct or incorrect is not
a judicial function. U.S. courts do not sit to second-guess discretionary decisions of high-

See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)
(“[Political decisions] are delicate, complex, and involve large elements of prophecy. They are
and should be undertaken only by those directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility and have long been held to belong in the domain of political power
not subject to judicial intrusion or inquiry.”).
Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986)
(quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (CADC 1981)).

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ranking executive officers.186 To find that the requirement of dual criminality is satisfied, this
Court must make expressly find that a federal court could second-guess the Department of
Agriculture’s determination that a nationwide irrigation project entails “scientific or
technological activities.” The fact is, no federal court would ever convict the Secretary of
Agriculture of any crime on the basis of such a determination because that phrase does not
create “judicially discoverable and manageable standards for resolving” the issue.187
Consequently, dual criminality can not be demonstrated, and the Complaint must be denied.
D. The Act-of-State Doctrine bars this Court from examining the legality of
Colombia’s agreements with the IICA.
The act-of-state doctrine precludes this Court from examining whether the Republic
of Colombia’s entry into cooperation agreements with a recognized inter-governmental
agricultural agency, accomplished through its duly appointed Minister of Agriculture, was
lawful. “Every sovereign is bound to respect the independence of every other sovereign
State, and the courts of one country will not sit in judgment on the acts of the government
of another done within its own territory.”188 This doctrine “expresses the strong sense of the
Judicial Branch that its engagement in the task of passing on the validity of foreign acts of
state may hinder rather than further this country’s pursuit of goals both for itself and for the
community of nations as a whole in the international sphere.”189 It applies whenever a United
States court is asked to examine an official act of a foreign state carried out within its
territory and to potentially declare that act invalid or unlawful. “By a ‘governmental act’ is
meant no more than a step physically taken by persons capable of exercising the sovereign

See El-Shifa Pharmaceutical Industries Co v. United States, 607 F.3d 836, 845
(CADC 2010) (en banc) (“Undertaking a counterfactual inquiry into how the political
branches would have exercised their discretion had they known the facts alleged in the
plaintiffs’ complaint would be to make a political judgment, not a legal one.”).
Zivotofsky, 566 U.S. at 195; see El-Shifa Pharmaceutical, 607 F.3d at 845 (“We
could not decide this question without first fashioning out of whole cloth some standard for
when military action is justified. The judiciary lacks the capacity for such a task.”).
Underhill v. Hernandez, 168 U.S. 250, 252 (1897).
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964).

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authority of the foreign nation.”190 When a country’s Minister of Agriculture enters into a
cooperation agreement with the IICA to modernize the nation’s agricultural sector, there is
no doubt that he is exercising the country’s sovereign authority. “If [he] purported to act in
[his] official capacity, that physical fact precludes us from examining the validity of their acts
under local law.”191
Both conditions necessary to trigger application of the act-of-state doctrine are
satisfied by Colombia’s extradition Complaint. First, it is beyond debate that Dr. Arias was
performing an act of state on behalf of Colombia when he entered into agreements with IICA
to modernize Colombia’s economy in light of the free trade agreement with the United
States.192 “Although stated in terms of the ‘State’ or ‘sovereign,’ the doctrine also extends to
governmental acts of State officials vested with sovereign authority.”193 The IICA’s
membership comprises only sovereign states and it routinely enters into joint ventures and
other agreements with nations, including the United States.194 Colombia admits that the

Banco de España v. Federal Reserve Bank of New York, 114 F.2d 438, 440 (CA2
Banco de España, 114 F.2d at 444. This is true regardless of any provision of foreign
law that might vitiate operation of the act-of-state doctrine. See id. (“The Spanish local law
as a whole is of no concern to us, and it follows that we may not employ one doctrine of that
law — that the illegal act of a public officer is deemed a private act — in order to gainsay the
physical occurrence of an official act by an officer of the Spanish government.”)
Oetjen v. Central Leather Co., 246 U.S. 297, 303 (1918) (holding that a suit for
damages for property seized by “a duly commissioned military commander of what must be
accepted as the legitimate government of Mexico ... seizing and selling in Mexico, as a
military contribution, the property in controversy” was “[p]lainly” a sovereign act).
United States v. Noreiga, 746 F.Supp. 1506, 1521 (SD Fla. 1990) (Hoeveler, J.).
See Peru and Colombia begin preparations to comply with new requirements for
exporting food to the U. S., IICA press release (8 Jun 2017) (“In order to ensure safe food for
human consumption, the Inter-American Institute for Cooperation on Agriculture and the
United States Department of Agriculture provided training to 59 professionals in Peru and
Colombia to comply with new export requirements for processed food established by the
United States government.”) [

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agreements with IICA were “entered into by the Nation” 195 because it states that they are
governed by Decree 591 of 1991, which only applies to such contracts.196 Second, granting
Colombia’s request to extradite would necessarily entail a finding by this Court that the IICA
agreements were invalid, both because they violated Colombian law and because they would
have violated United States law had they been executed by the U.S. Secretary of Agriculture.
Those two premises trigger application of the act-of-state doctrine, which leaves this Court
without power to adjudicate Colombia’s Complaint.197
That the current Colombian government views the former Minister of Agriculture’s
official acts as having violated Colombian law does not vitiate operation of the act of state
doctrine. “Nor are we persuaded that the doctrine there set forth should be limited to
situations in which the foreign act is committed in a manner ‘colorably valid’ under foreign
law. It should make no difference whether the foreign act is, under local law, partially or
wholly, technically or fundamentally, illegal. ... So long as the act is the act of the foreign
sovereign, it matters not how grossly the sovereign has transgressed its own laws.”198 This
principle is so inviolable that Judge Learned Hand applied it to allegations that Nazi officials
unlawfully forced a shipping company’s Jewish owner to transfer the company to a Nazi
trustee before the Third Reich passed any laws “legalizing the confiscation of the property
of Jews because of their race or religion. ... We have repeatedly declared, for over a period
of at least thirty years, that a court of the forum will not undertake to pass upon the validity
under the municipal law of another state of the acts of officials of that state, purporting to act

Decree 591 of 1991, Title 1, art. 1 (“This Decree regulates the specific forms of
contracts entered into by the Nation ... .”) [Extradition Packet at 693].
Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246, 252 (CA2 1947)
(Hand, L.) (affirming dismissal under the act-of-state doctrine) (“As it stands, the district
court had no power to proceed; and while it may not be proper, sticti juris, to say that it had
no jurisdiction, that is a mere question of words. It is enough that the court was powerless
to move in it.”).
Banco de España v. Federal Reserve Bank of New York, 114 F.2d 438, 444 (CA2

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as such.”199 Judge Hand reasoned that judicial involvement in such disputes would take the
courts beyond their assigned role, frustrate international coordination of reparations, and
complicate peace negotiations.200
This is because the doctrine is supported by many rationales. “[T]he principle ... is not
entirely a matter of comity. Persons ... are entitled to rely upon the finality and legality of
[their own] government’s acts, at least so far as concerns inquiry by the courts of this
country.”201 In addition, the act-of-state doctrine serves to keep federal courts out of political
disputes over the legality of another nation’s official acts. Were this Court to find probable
cause to believe that Colombia’s then-Minister of Agriculture violated Colombian law (and
would have violated United States law in analogous circumstance) by causing the Republic
of Colombia to enter into agreements with an intergovernmental agency, it hand a huge
political windfall to President Santos. He would undoubtedly trumpet that a United States
federal court had taken his side against the many Colombian senators, congressmen, and
other government officials who have maintained, including in letters to this Court,202 that Dr.
Arias committed no crime and was prosecuted and convicted unfairly and in violation of his
human rights. How such a ruling from a United States court would affect U.S.-Colombia
relations after the 2018 Colombian presidential elections is impossible to predict.
For that reason, the act-of-state doctrine does not permit United States courts to
examine the legality of Colombia’s sovereign acts, even if the current government would
welcome the ruling.203 It also does not matter whether the U.S. State Department desires

Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246, 248 (CA2 1947).
Id. at 250–51.
Banco de España, 114 F.2d at 444.
See DE27:9–17 (summarizing 19 such letters, the originals of which were appended
as DE27-1).
Cf. Guaranty Trust Co. v. United States, 304 U.S. 126, 140–41 (1938) (“The very
purpose of the recognition by our government is that our nationals may be conclusively
advised with what government they may safely carry on business transactions and who its
representatives are. If those transactions, valid when entered into, were to be disregarded
after the later recognition of a successor government, recognition would be but an idle
ceremony, yielding none of the advantages of established diplomatic relations in enabling

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such a ruling. “Whether to invoke the act of state doctrine is ultimately and always a judicial
The unseemliness of this Court’s taking any position on whether Colombia’s
agreements with the IICA were lawful when the Republic executed them is shown by the
political calculations driving the Santos Administration’s pursuit of high-ranking Uribe
Administration members. As Drew Blakeney acknowledged when he met with Dr. Arias at
the U.S. Embassy, the U.S. diplomatic mission was aware that, under the Santos
Administration, former high-ranking Uribe Administration officials were targeted for
prosecution, including Dr. Arias, former Peace Commissioner Luis Carlos Restrepo, who is
now under Canada’s protection, and former President Uribe’s brother, Santiago Uribe, who
is imprisoned in Colombia.
The State Department renewed Dr. Arias’ visa because it knew that he was being
prosecuted for political motives and not because he was actually guilty of any crime. This is
supported by the cable from Deputy Chief of Mission at the U.S. Embassy Brian Nichols to
the State Department: “Arrayed against Uribe’s formidable popular support are the weak
but not irrelevant political opposition, the media and intelligentsia, and the politicized
Supreme Court. ... Additionally, the magistrates have effectively co-opted the supposedly
independent Attorney General’s Office by refusing to select an Uribe candidate from a three-
name list.”205
The timing of the events leading up to and related to this extradition request also
reveals how the proceedings before this Court continue President Santos’ successful practice
of launching attacks against Dr. Arias to influence votes. First, the AIS scandal that
precipitated Dr. Arias’ prosecution was begun by a Santos-family-controlled magazine in late

business transactions to proceed, and affording no protection to our own nationals in carrying
them on.”).
Allied Bank Int’l v. Baco Credito Agricola de Cartago, 757 F.2d 516, 521 n.2 (CA2
Confidential communique from Brian A. Nichols (17 Nov 2009)

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2009 and kept in the news by a Santos-family-controlled newspaper until Dr. Arias narrowly
lost his party’s nomination for the presidency. Before news of that scandal broke, Dr. Arias
was far-and-away the leader among five candidates vying for the Conservative Party
nomination. The scandal paved the way for Santos to assume the Uribe mantel and win the
presidency. Second, after President Santos betrayed the platform on which he ran and his
popularity sank, Dr. Arias emerged as President Santos’ chief provocateur and rival in future
elections. Dr. Arias was then criminally charged, arrested, and detained for two years,
silencing his dissenting views.
Third, the pronouncement of the verdict in Dr. Arias’ case was postponed three times
because President Santos’ chances for re-election were much tighter than anticipated. Two
days before the run-off election, press leaks announcing Dr. Arias’ imminent conviction
dominated the news, dooming the prospects of Santos’ challenger, whom Dr. Arias and
former President Uribe had backed. Fourth, after coming to the United States and
petitioning for asylum, Dr. Arias lived and worked openly in Weston, Florida, for two years.
The Santos Administration knew exactly where he was for all that time. Yet, Dr. Arias was
not arrested on Colombia’s extradition complaint until August 2016 — the same day that the
Santos Administration announced a peace accord with the FARC, which had to be ratified
by a national referendum.206 News of Dr. Arias’ arrest and detention in the United States
again dominated the news in Colombia, communicating a grim reminder of the consequences
of opposing President Santos’ agenda. The act-of-state doctrine prevents United States
courts from becoming entangled in this type of political vendetta by preventing them from
taking sides in legal battles waged between high-ranking foreign leaders.
E. Colombia has not established probable cause.
“The probable cause standard in an extradition hearing is not ‘toothless.’”207 To meet
its burden, Colombia must adduce authentic, reliable evidence of sufficient persuasive weight

Colombia peace deal: FARC to announce ceasefire on Sunday, BBC NEWS (28 Aug
Atuar v. United States, 156 F. App’x 555, 563 n.11 (CA4 2005) (quoting United
States v. Kin-Hong, 110 F.3d 103, 120–21 (CA1 1997)).

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to establish that the purported acts underlying the Colombian convictions would, if
committed here, violate a specifically identified federal statute. “Inherent in the probable
cause standard is the necessity of a determination that the evidence is both sufficiently
reliable and of sufficient weight to warrant the conclusion.” 208
Colombia cites various cases for the proposition that a foreign conviction automatically
establishes probable cause, but that facile conclusion does not apply to the judgments of
politicized courts. The Deputy Chief of the U.S. Diplomatic Mission to Colombia referred in
an official cable to the court that convicted Dr. Arias as “the politicized Supreme Court” and
further reported that the court’s “magistrates have effectively co-opted the supposedly
independent Attorney General’s Office.”209 A conviction from that court, therefore, does not
establish probable cause because there is no reason to believe that Dr. Arias’ trial was in any
sense fair. At the very least, these observations by a high-ranking member of a U.S.
Diplomatic Mission, who is now a U.S. Ambassador, call probable cause into doubt.
Also, other officials at the U.S. Embassy at Bogota helped Dr. Arias leave the country
during his trial. Dr. Arias kept these United States officials informed of his situation and of
his intention to seek political asylum. This also calls probable cause into serious doubt. It is
inconceivable that the U.S. Embassy at Bogota would abet a criminal’s flight from a friendly
nation. Rather, it is much more likely that the U.S. Embassy understood that Dr. Arias was
being railroaded for political reasons and, for that reason, aided his travel to the United
Aside from the words and deeds of United States diplomatic officials, Colombia’s own
theory of prosecution fails to establish probable cause. It equates Dr. Arias with the entire
Ministry of Agriculture without setting forth any theory of vicarious criminal liability to
support the assumption that the Minister is personally responsible for every particular of the
Ministry’s agreements with IICA. (Of course, no such theory exists, at least under United

Kin-Hong, 110 F.3d at 120.
Confidential communique from Brian A. Nichols (17 Nov 2009)

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States law.) For example, no one ever suggested that Secretary for Veterans Affairs Eric
Shinseki was criminally liable for the department’s scandalous failure to provide desperately
needed care that precipitated his ignominious resignation in 2014.210 Colombia’s failure to
explain why former Minister Arias is personally, criminally liable for a departmental act is
an especially glaring omission in light of the fact that Colombia’s allegations against Dr. Arias
are that he “allowed” others to do things.
The Ministry, as would naturally be supposed, employs professional civil servants who
have the expertise to determine whether “scientific and technological agreements” are in
compliance with relevant regulations. Colombia does not even allege that Minister Arias
personally designated the agreements with IICA as “for ... scientific or technological
activities.” On the contrary, Colombia had a long history of entering into agreements of this
very sort with IICA. Between 1993 and the time Dr. Arias was appointed Minister, the
Ministry of Agriculture executed without public bid 132 different scientific and technological
cooperation agreements with IICA that were not meaningfully different from the agreements
at issue.
Probable cause is further undermined by the ruling of the Administrative Tribunal
of Cundinamarca, which overturned the civil sanction imposed on Oskar Schroeder, the
Ministry’s legal advisor, for carelessly drafting the agreements at issue.211 The regional
tribunal’s holding can not be reconciled with that of the “politicized” Supreme Court.
F. Any doubt regarding the legality of the requested extradition must be
resolved against Colombia.
The unambiguous terms of a treaty must be enforced according to the text’s plain
meaning.212 It is true, as Colombia notes, that “the obligations of treaties should be liberally

Michael Shear & Richard Oppel, V.A. Chief Resigns in Face of Furor on Delayed
Care, N.Y. TIMES (30 May 2014) [
Decision No. 25000-23-42-000-2013-04511-00 of the Administrative Tribunal of
Cundinamarca (2d section) (9 May 2014) [].
Chan v. Korean Air Lines, 490 U.S. 122, 134 (1989) (“But where the text is clear, as
it is here, we have no power to insert an amendment.”) (citing The Amiable Isabella, 6

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construed so as to give effect to the apparent intention of the parties.”213 This canon of
interpretation applies only “if a treaty fairly admits of two constructions,”214 and Colombia
does not suggest any of the Treaty’s provisions is ambiguous. Where “[t]he treaty is explicit”
regarding “any obligation,” “there is no question for construction so far as the obligations of
the treaty are concerned” and the treaty’s explicit terms are strictly enforced. 215
If there were any ambiguities in the Extradition Treaty, they would be resolved by
reference to the intent of the parties. “‘The clear import of treaty language controls unless
‘application of the words of the treaty according to their obvious meaning effects a result
inconsistent with the intent or expectations of its signatories.’”216 The intent of the parties to
an extradition treaty is not what Colombia assumes it to be. Colombia asserts that the
Treaty’s purpose is to effect “the surrender of fugitives to the requesting country,”217 but no
legal authority says that. On the contrary, according to the U.S. Supreme Court, extradition
treaties have only one purpose — “to impose mutual obligations to surrender individuals in
certain defined sets of circumstances, following established procedures.”218 Thus, if an
ambiguity arises, it must be resolved so as to maintain mutual and reciprocal obligations
between the signatories. Colombia’s own authorities make this clear: “Considerations which
should govern the diplomatic relations between nations, and the good faith of treaties, as well,

Wheat. (10 U.S.) 1, 72 (1821)).

Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 14 (1936).
Factor, 290 U.S. at 293–94.
Valentine, 299 U.S. at 10.
See Sumitomo Shoji America v. Avagliano, 457 U.S. 176, 180 (1982) (quoting
Maximov v. United States, 373 U.S. 49, 54 (1963)); see also The Amiable Isabella, 6 Wheat.
(10 U.S.) 1, 72 (1821) (“[T]his Court is bound to give effect to the stipulations of the treaty in
the manner and to the extent which the parties have declared, and not otherwise. We are not
at liberty to dispense with any of the conditions or requirements of the treaty, or to take
away any qualification or integral part of any stipulation, upon any notion of equity or general
convenience, or substantial justice.”).
504 U.S. 655, 665 (1992) (emphasis added); accord RESTATEMENT (3RD) OF U.S.
FOREIGN RELATIONS LAW § 475 (“A state party to an extradition treaty is obligated to
comply with the request of another state party to that treaty to arrest and deliver a person”
wanted for trial or punishment.”) (emphasis added).

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require that their obligations should be liberally construed so as to effect the apparent
intention of the parties to secure equality and reciprocity between them.”219 Colombia
frustrates that purpose consistently by denying and limiting U.S. extradition requests in its
own discretion.
The law decidedly does not encourage courts, as Colombia contends, to resolve all
doubts in favor of extradition. On the contrary, because Colombia has the burden of proof,
any doubts as to whether extradition would be lawful are resolved against certification.

Factor v. Laubenheimer, 290 U.S. 276, 293–94 (1933) (emphasis added); accord
Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936) (citing Factor).
Colombia’s other authorities do not contradict this. Vardy v. United States, simply
applied this rule without elaboration to the issue of whether the fugitive “was ‘found’ in the
United States for purposes of our extradition treaty with Canada.” 529 F.2d 404, 406–07 (CA5
1976). Colombia’s quotation from Judge Roettger’s opinion in McElvy v. Civiletti, 523
F.Supp. 42, 47 (SDFla 1981), DE82:9–10, was a verbatim quotation from Factor and, thus,
undermines rather than supports Colombia’s assertions about treaty interpretation. Grin v.
Shine, 187 U.S. 181 (1902), and Fernandez v. Phillips, 268 U.S. 311 (1925), DE82:10, are
inapposite as neither involved any issue of treaty interpretation. Grin involved various
technical claims regarding the propriety of the arrest warrant under the statute, the
sufficiency and authentication of the evidence, and other such technicalities. 187 U.S. at
185–96. In Fernandez, the Court was discussing whether “[c]ompetent evidence to establish
reasonable grounds” to extradite had been adduced; the case did not involve any issue of
treaty interpretation, as Justice Holmes’ opinion made plain. 268 U.S. at 312 (“The case is
brought here directly upon the somewhat strained assumption that the construction of our
treaty with Mexico is involved.”) (emphasis added).

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Respectfully submitted,

_____________________________________ _____________________________________
David Oscar Markus Ricardo J. Bascuas
Florida Bar No. 119318 Florida Bar No. 093157
Lauren Doyle 1311 Miller Drive
Florida Bar No. 117687 Coral Gables, Florida 33146
Markus/Moss PLLC 305-284-2672
40 N.W. Third Street Penthouse One
Miami, Florida 33128
/s/ Marc David Seitles
Marc David Seitles
Florida Bar No. 0178284
Seitles & Litwin PA
40 N.W. Third Street, Penthouse One
Miami, Florida 33128


This answer was filed electronically on 23 June 2017, through CM/ECF and served on
AUSA Robert Emery through that system.

David Oscar Markus