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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23468-MC-O’SULLIVAN
IN THE MATTER OF THE EXTRADITION
OF ANDRES FELIPE ARIAS LEIVA
______________________________________/
GOVERNMENT’S RESPONSE IN OPPOSITION TO ARIAS LEIVA’S REQUEST FOR
RECONSIDERATION OF THE DETENTION ORDER
The United States of America, by and through the undersigned Assistant United States
Attorney, files this Response in Opposition to the request by Andres Felipe Arias Leiva
(hereinafter “Arias Leiva”) for reconsideration of the detention order previously entered in this
case [DE 27].
On August 24, 2016, Arias Leiva made an application for bail pending extradition
proceedings. On August 26, 2016, at the request of Arias Leiva, the Honorable Alicia M. OtazoReyes held a detention hearing during which the Court considered the briefs and heard from
counsel for both sides [DE 16, 24]. At the hearing, Arias Leiva claimed he posed no flight
risk—offering to post a $600,000 bond cosigned and secured by collateral, and to submit to
electronic monitoring; and that special circumstances existed warranting bail—an alleged
political motivation for the conviction and a pending asylum application [DE 24, pp. 7, 8, 11,
15]. He further alleged U.S. Embassy support of his flight from Colombia [DE 24, p.8]. The
Court denied the application for bail, finding that Arias Leiva’s release would pose an
unacceptable risk of flight in the context of an extradition proceeding, especially since he fled
Colombia while on release by a Colombian court, and that Arias Leiva failed to demonstrate
special circumstances warranting bail, specifically rejecting any political motivation or asylum

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claim as special circumstances [DE 24, pp. 27-28]. The Court issued a corresponding detention
order [DE 16].
A status conference was held before this Court on September 9, 2016. At the hearing,
new counsel for the fugitive announced that he would be seeking reconsideration of the detention
order. Arias Leiva filed a motion to reconsider the prior Court’s detention order, re-arguing
many of the same grounds why he does not pose a flight risk, and re-arguing that he has met his
burden of establishing special circumstances warranting bail, including many previously
argued—i.e., an alleged political motivation for the conviction, and a pending asylum
application. Arias Leiva does not submit newly discovered evidence in support of either his
renewed argument that he poses no flight risk, or his arguments for special circumstances
warranting bail. Accordingly, the Court need not re-visit these arguments; nevertheless, the
Government addresses them below. Arias Leiva also adds the possibility of an anticipatory
waiver of extradition to mitigate flight and new alleged special circumstances, specifically, lack
of diplomatic necessity given Colombia’s delay in seeking extradition, anticipated length of
delay of litigation, and likelihood of success on the merits of the extradition request.
The Government submits that Arias Leiva has still not met his burden of establishing that
he does not pose a flight risk. Moreover, none of the alleged circumstances warrant bail, even
with the additional circumstances he cites in his application for reconsideration. Accordingly,
Arias Leiva’s renewed bail application should be denied.
I.

BACKGROUND
A.

Colombian Court Proceedings and Extradition Request

The fugitive, Andres Felipe Arias Leiva, was arrested on August 24, 2016, pursuant to a
complaint and warrant issued by the Court, seeking the fugitive’s extradition to Colombia,
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pursuant to the Extradition Treaty with the Republic of Colombia, U.S.-Colom., Sept. 14, 1979,
S. Treaty Doc. No. 97-8 (1981) (hereinafter, “the Treaty”), and pursuant to 18 U.S.C. 3184 §§ et
seq.
On July 26, 2011, the Attorney General of Colombia charged Arias Leiva with 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. On the same day, a Colombian judge ordered the arrest and
preventative detention of Arias Leiva, who was subsequently taken into custody. A judge in the
Criminal Division of the Superior Court of Bogotá later overturned this order on June 14, 2013
and released Arias Leiva from custody pending trial.
Arias Leiva’s trial began on June 14, 2011, and ended on February 25, 2014. On June
13, 2014, he fled Colombia by plane to the United States. On July 16, 2014, the Criminal
Cassation Division of the Supreme Court of Justice, in Bogota, Colombia (“Supreme Court of
Colombia”), issued a judgment convicting Arias Leiva of both offenses, and sentencing him to
209 months and 8 days of imprisonment. The Government of Colombia seeks the extradition of
Arias Leiva for service of the sentence imposed for these offenses of conviction. Article 2 of the
Treaty provides for the extradition of persons accused or convicted of these crimes.

The

Supreme Court of Colombia issued a warrant for the fugitive’s arrest on July 18, 2014 for this
purpose. On November 21, 2014, via a diplomatic note to the United States, the Government of
Colombia formally requested the extradition of Arias Leiva.
B.

Arias Leiva’s Visa Application to Temporarily Visit the United States

On July 9, 2013, Arias Leiva applied to renew a B1/B2 visa for temporary travel to the
United States. See Arias Leiva Non-Immigrant Visa Application, attached hereto as Government
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Bond Exhibit A.1 In response to the question on the application, “Have you ever been arrested
or convicted for any offense or crime, even though subject of a pardon, amnesty, or similar
action?” Arias Leiva marked “No,” despite his previous 2011 arrest. See Exhibit A, p.3. The
U.S. Embassy still flagged and held his application in abeyance, requiring Arias Leiva to
produce documentation of the outcome of the Colombian charges. See NIV Applicant Detail,
attached hereto as Government Bond Exhibit B, p.2, July 23, 2013 Consular Note. On October
29, 2013, Arias Leiva submitted Colombian court documents, including a judicial order
permitting him to travel. See Exhibit B, p.2, October 29, 2013 Consular Note. 2 Based on the
court documentation submitted by Arias Leiva, the Embassy found no visa ineligibilities present,
as no conviction existed at the time, and it issued Arias Leiva a non-immigrant visa to
temporarily travel to the United States. Id.
After issuance of the visa, Arias Leiva traveled to the United States on December 1, 2013
and April 12, 2014, both times returning to Colombia. In 2014, Arias Leiva met with Drew
Blakeney, an officer from the Political Section of the U.S. Embassy who was responsible for
maintaining relationships with current and former members of the Colombian Government.
During discussions with Mr. Blakeney, Arias Leiva speculated about applying for asylum in the
United States. However, Arias Leiva did not give any specific plans about applying for asylum.
Without opining on the merits of any such application, Mr. Blakeney informed Arias Leiva that
nothing prevented him from applying for asylum, just like any visitor to the United States could
do. His visa remained valid because he had not yet been convicted of the Colombian charges.
The Court granted a protective order for the documents the Government references in Bond
Exhibits A and B [DE 28]. These documents will be delivered separately to the Court and to
counsel of record.
2
Generally, the U.S. Embassy in Colombia reviews and returns to the non-immigrant visa
applicant any submitted documentation.
1

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The U.S. Embassy ultimately revoked Arias Leiva’s visa after he last entered the United States in
July 2014. Id.
II.

APPLICABLE LAW
The federal statute governing extradition procedures in the United States pursuant to

treaties with other nations, 18 U.S.C. §§ 3184 et seq., does not provide for bail. Further, an
extradition proceeding is not a criminal case. See Kamrin v. United States, 725 F.2d 1225, 12271228 (9th Cir. 1984); Martin v. Warden, Atlanta Penitentiary, 993 F.2d 824, 829 (11th Cir.
1993). Consequently, the Bail Reform Act, 18 U.S.C. §§ 3141 et seq., and its criteria governing
the allowance and the amount of bail in United States criminal cases do not apply in extradition
matters. The Bail Reform Act applies only to “offenses” against the United States that are triable
in United States courts. See 18 U.S.C. §§ 3141(a), 3142, 3156(a)(2). The fugitive Arias Leiva is
not charged with an “offense” within the meaning of 18 U.S.C. § 3156. Instead, Arias Leiva is
charged with Embezzlement for Third Parties and Conclusion of Contract without Fulfilling
Legal Requirements against the Requesting State, Colombia.
Similarly, neither the Federal Rules of Criminal Procedure nor the Federal Rules of
Evidence apply to international extradition proceedings. 3 Fed R. Crim. P. 1(a)(5)(A); Fed. R.
Evid. 1101 (d)(3); See also Afanesjev v. Hurlburt, 418 F.3d 1159, 1164-65 (11th Cir. 2005).
A.

A Strong Presumption Against Bail Governs In An
International Extradition Proceeding

The overwhelming weight of authority supports the strong presumption against the
granting of bail in international extradition cases. Both the United States Supreme Court and the
Although the issue before the Court is the fugitive’s request for bail, it also should be noted that
neither the prohibitions against hearsay, Simmons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980),
nor the Sixth Amendment’s guarantee to a speedy trial, Jhirad v. Ferrandina, 536 F.2d 478, 485
n. 9 (2d Cir. 1976), apply to international extradition proceedings.
3

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federal courts of appeals have long held that bail should be granted in only the most unusual of
circumstances. And this is not one of those circumstances.
In the landmark case Wright v. Henkel, 190 U.S. 40 (1903), the Supreme Court affirmed
the detention without bail of a fugitive sought by Great Britain for defrauding a corporation of
which he was a director. The United States argued in Wright that extradition courts were
without power to allow bail because no statute provided for such power. Id. at 55. The Court
stated that it was unwilling to hold that the circuit courts do not possess power with respect to
admitting fugitives to bail other than as specifically vested by statute, but cautioned that “. . . bail
should not ordinarily be granted in cases of foreign extradition . . . .” Id. at 63.
In establishing this presumption against bail, the Supreme Court in Wright explained that
when a foreign government makes a proper request under a valid extradition treaty, the United
States is obligated to deliver the person sought after he or she is apprehended:
The demanding government, when it has done all that the treaty and the law require it to
do, is entitled to the delivery of the accused on the issue of the proper warrant, and the
other government is under obligation to make the surrender; an obligation which it might
be impossible to fulfill if release on bail were permitted. The enforcement of the bond, if
forfeited, would hardly meet the international demand; and the regaining of the custody
of the accused obviously would be surrounded with serious embarrassment.
Id. at 62.
The reasons for this presumption against bail in international extradition cases are clear
and compelling. First, it is necessary for the United States to meet its legal treaty obligations. A
person sought for extradition already is an international fugitive from justice; it is reasonable to
think that person would flee if alerted to the charges. Even if the person were not in flight, the
fact of an impending extradition to a foreign country to face serious criminal charges or to serve
a sentence, is itself a strong incentive to flee.
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Further, the ability of the United States to deliver fugitives pursuant to extradition
requests has significant international law implications. The international legal system depends
wholly upon the respect of its members for the obligations into which they freely enter. When,
as here, the Government of Colombia meets the conditions of the treaty, the United States is
obliged to deliver the fugitive.

It is important that the United States be regarded in the

international community as a country that honors its agreements in order to be in a position to
demand that other nations meet their reciprocal obligations to the United States.

Such

reciprocity would be defeated if a fugitive were to flee after being released on bond. See Wright,
190 U.S. at 62; see also United States v. Leitner, 784 F.2d 159, 160-61 (2d Cir. 1986) (the
Government has an overriding foreign relations interest in complying with treaty obligations and
producing extradited persons).
In his motion for reconsideration of bail, Arias Leiva speculates about an erosion of the
presumption against bail in extradition proceedings created by the Supreme Court in Wright.
This presumption against bail remains good law, and courts are thus bound to apply it. See, e.g.,
Ballew v. Cont’l Airlines, 668 F.3d 777, 782 (5th Cir. 2012) (“We are a ‘strict stare decisis
court,’ [citation omitted], and are in no position to challenge the statutory construction utilized
by the Supreme Court. . . . The Supreme Court has sole authority to overrule its own decisions,
meaning that the courts of appeal must follow the Supreme Court’s directly controlling precedent
even if it ‘appears to rest on reasons rejected in some other line of decisions.’”) (quoting
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); see also Evans v.
Sec’y, Florida Dep’t of Corr., 699 F.3d 1249, 1265 (11th Cir. 2012) (“[W]e must follow the
decision that directly controls, unless and until the Supreme Court makes it non-controlling by
overruling it.”); United States v. Messina, 566 F. Supp. 740, 742 (E.D.N.Y. 1983) (“The mere
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frequency with which bail has been granted . . . may not indicate any change in the test of Wright
v. Henkel.”). Moreover, a court in this District recently recognized that obtaining bail in an
extradition proceeding is “unusual and extraordinary.” In re Extradition of Shaw, No. 14–MC–
81475–WM, 2015 WL 521183, at *6 (S.D. Fla. Feb. 6, 2015). Lastly, unlike here, none of the
fugitives in the cases cited in his motion on pages 23-24 in an attempt to lessen Wright had fled
the jurisdiction of another court pending trial and were wanted to serve lengthy prison sentences.
B.

The Fugitive Must Establish “Special Circumstances” and Must Not Pose a
Risk of Flight for the Court to Consider the Question of Bail

In light of the strong presumption against bail established in Wright, the federal courts
have uniformly held that bail shall not be granted except under “special circumstances.” See
Leitner, 784 F.2d at 160 (bail in extradition cases should be granted “only in the most pressing
circumstances, and when the requirements of justice are absolutely peremptory”), (quoting In re
Mitchell, 171 F. 289 (S.D.N.Y. 1909) (Hand, J.); Salerno v. United States, 878 F.2d 317, 318
(9th Cir. 1989) (“only ‘special circumstances’ will justify bail”); Koskotas v. Roche, 931 F.2d
169, 175 (1st Cir. 1991) (“in a case involving foreign extradition, bail should not be granted
absent special circumstances”); Martin, 993 F.2d at 827) (adhering to traditional special
circumstances test); see In re Extradition of Hernandez-Andrade, 16-MC-21470-MCALILEY, *1
(S.D. Fla. June 3, 2016).
Moreover, the burden is on the fugitive to establish the existence of special circumstances
warranting the granting of bail. See Salerno, 878 F.2d at 317-18; Leitner, 784 F.2d at 160. 4

Some courts have applied a clear and convincing evidence standard reasoning that the
presumption against bail in extradition cases justifies a heightened standard of proof. United
States v. Ramnath, 533 F. Supp. 2d 662, 671 (E.D. Tex. 2008); In re Extradition of Gonzalez, 52
F. Supp. 2d 725, 735 (W.D. La. 1999); In re Extradition of Nacif-Borge, 829 F. Supp. 1210, 121415 (D. Nev. 1993); In re Extradition of Mainero, 950 F. Supp. 290, 294-95 (S.D. Cal. 1996); but
4

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Notably, the courts have determined that certain circumstances are not “special” and do
not justify the release of a fugitive during extradition proceedings. Foremost, the absence of
flight risk is consistently held not to constitute a special circumstance. Rather, the absence of a
risk of flight and a finding of special circumstances are each independent requirements for bail in
an extradition case.
Therefore, to qualify for bail, a fugitive is required to make a two-part showing that: (1)
he or she is not a flight risk and (2) that “special circumstances” exist warranting the granting of
bail. See In re Extradition of Hernandez-Andrade, No. 16-MC-21470-MCALILEY, *1; In re
Extradition of Shaw, No. 14-MC-81475-WM, *10); United States v. Ramnath, 533 F. Supp. 2d
662, 665 (E.D. Tex. 2008); In re Extradition of Molnar, 182 F. Supp. 2d 682, 687 (N.D. Ill.
2002); In re Extradition of Nacif-Borge, 829 F.Supp. at 1215; In re Extradition of Chapman, 459
F.Supp.2d 1024, 1026-27 (D. Haw. 2006). The absence of flight risk is consistently held to be a
requirement separate from the special circumstances test. 5
Assuming the fugitive is not a risk of flight and poses no danger to the community, the
fugitive must make an affirmative showing of special circumstances. Some examples of where
courts have declined to find “special circumstances” based on: (1) the need to consult with one’s

see In re Extradition of Santos, 473 F. Supp. 2d 1030, 1036 n.4 (C.D. Cal. 2006) (rejecting
heightened standard adopted in Nacif-Borge and applying preponderance of evidence standard).
5
Courts differ in the order in which they consider flight risk and special circumstances. Some
courts evaluate potential flight risk before proceeding to any special circumstances analysis. E.g.,
Extradition of Molnar, 182 F. Supp. 2d at 687; United States v. Taitz, 130 F.R.D., 442, 445 (S.D.
Cal. 1190). Other courts first determine special circumstances and then consider the potential for
flight. E.g., Extradition of Morales, 906 F. Supp. at 1373; Extradition of Nacif-Borge, 829 F.
Supp. at 1216; Extradition of Mainero, 950 F. Supp. 290, 295 (S.D. Cal. 1996). Regardless of
the order of consideration, case authority is clear that both special circumstances must be
demonstrated and lack of flight risk must be established to grant bail. Practical considerations
and judicial economy suggest determinations as to flight risk and danger to the community be
made first.
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attorney and/or participate in pending litigation; 6 (2) the complexity of the pending litigation; 7
(3) United States citizenship or pendency of immigration proceedings; 8 (4) the availability of
electronic monitoring; 9 (5) the fugitive’s character, past conduct, and/or ties to the community; 10
(6) ordinary delay or delay occasioned by the fugitive in the course of extradition proceedings; 11
and (7) the fugitive’s claims of likely success against extradition or action in requesting
country. 12

See, e.g., In the Matter of Extradition of Smyth, 976 F.2d 1535 (9th Cir. 1992) (“The need to
consult with counsel, gather evidence and confer with witnesses, although important, is not
extraordinary; all incarcerated defendants need to do these things”); accord, Matter of
Extradition of Russell, 805 F.2d 1215, 1217 (5th Cir. 1986).
7
See, e.g., Matter of Extradition of Russell, 805 F.2d 1215, 1217 (5th Cir. 1986).
8
See, e.g., In re Extradition of Orozco, 268 F. Supp. 2d 1115, 1117 (D. Ariz. 2003).
9
See, e.g., Matter of Extradition of Rovelli, 977 F. Supp. 566, 569 (D. Conn. 1997).
10
A fugitive’s character, including past conduct, lack of a prior criminal record, and ties to the
community should not be considered a special circumstance. Instead, and as most district courts
have recognized, a defendant’s character is more appropriately considered when conducting the
independent flight risk analysis. In Matter of Extradition of Nacif-Borge, the court explained
that “[m]ore often, the character and background of a person subject to extradition are considered
in regard to risk of flight and danger to the community rather than as a special circumstance.”
829 F. Supp. at 1220. See also Matter of Extradition of Sidali, 868 F. Supp. 656 (D.N.J. 1994)
(rejecting “extraordinary character” based on employment, family ties, no prior record, and
community respect as a special circumstance); In re Extradition of Valles, 36 F. Supp. 2d 1228,
1231 (S.D. Cal. 1998) (fugitive’s past conduct and community ties used to assess flight risk).
11
Delays during the course of extradition proceedings do not qualify as special circumstances.
An extradition proceeding is not a criminal case, and hence a fugitive has no Sixth Amendment
right to a speedy trial. See Martin, 993 F.2d at 82. The Government notes that Arias Leiva
previously conceded in his initial bond memorandum that anticipated length of delay of
extradition proceedings is not a special circumstance [DE 12, p.3].
12
In re Extradition of Hernandez-Andrade, No. 16-MC-21470-MCALILEY, *2. The availability
of bail for the charged offense in the requesting country is not a special circumstance justifying
bail. In fact, the bail practices of the requesting country are entirely irrelevant. By statute, 18
U.S.C. §§ 3184, et seq., and through its mandatory treaty obligations, the United States is
obligated to deliver fugitives to the requesting country. As a result, a court’s role is limited to
determining the sufficiency of the extradition request and existence of probable cause. Charlton
v. Kelly, 229 U.S. 447, 462 (1913); Collins v. Loisel, 259 U.S. 309, 316-17 (1922). Regardless,
bail in Colombia is not at issue here, as the extradition request is for Arias Leiva to serve his
seventeen-year sentence.
6

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While in certain exceptional cases some of the above may have been deemed a special
circumstance, in general, where a court determines special circumstances to exist, it is usually
based on a confluence of factors, as opposed to any single consideration. Such findings are very
case specific and within the discretion of the court, mindful of the strong presumption against
bail and future reciprocity of other countries at stake.
II.

THE FUGITIVE POSES A RISK OF FLIGHT AND CANNOT ESTABLISH
SPECIAL CIRCUMSTANCES
The fugitive in this case has not met his burden, and the Court should again deny his

request for bail.
A. Arias Leiva presents a serious risk of flight
The strong presumption against bail is supported in this case by the seriousness of crimes
of which Arias Leiva stands convicted and the corresponding sentence of 17 years of
imprisonment. Moreover, as identified by the prior Court, the fugitive poses a clear risk to
abscond because after he was released from custody pending trial in Colombia, but shortly
before imposition of judgment and sentence, he fled the country. Indeed, in his motion for
reconsideration, Arias Leiva admits that he fled to avoid serving a sentence in Colombia. [DE
25, p.6 (“When it became clear that the court tasked with investigating and adjudicating the
charges had become politicized, Dr. Arias sought protection from the United States.”)]
Additionally, the fugitive has demonstrated that he is highly adept at moving (himself and his
family) and accessing financial and other resources in aid of flight. Hence, further flight from
the United States to yet another country or to an underground location in the United States to
continue avoiding service of the Colombian sentence is a reasonable assumption.

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Because the fugitive is a risk of flight, as the prior Court already found, this Court need
go no further in order to deny the application for bail. The fugitive has been unable to meet this
necessary independent basis to obtain bail, and for that reason the Court need not even consider
any arguments regarding special circumstances.
In his motion for reconsideration, Arias Leiva offers no valid reason to revisit the finding
that he poses a risk of flight. He now contends an anticipatory waiver of extradition would
mitigate his risk of flight. Yet, an anticipatory waiver of extradition provides no additional
assurance that Arias Leiva will in fact return to court when ordered. A written waiver of
extradition from a particular country, even if it were enforceable, provides no guarantee that
Arias Leiva will not flee to a third country from which, even if he can be located, extradition
may be impossible or, at best, more difficult. Some courts, after acknowledging that the foreign
country to which the waiver is directed would likely not recognize it, nonetheless have included
execution of the waiver as a condition, along with others, and released the fugitive. See, e.g.,
United States v. Myiow, No. 95-CR-446 FJS, 1996 WL 238545 (S.D.N.Y. April 26, 1996)
(“[T]he United States has offered evidence that such a waiver in unenforceable in Canadian
courts unless executed under the jurisdiction of those courts. Such evidence is persuasive. . . .
The waiver is retained as a condition of release, however, based on the defendant’s offer to do so
and the possibility that it might have some effect in the extradition proceeding.”). Other courts
have completely rejected arguments that waivers of extradition militate against risk of flight,
finding that such waivers are not enforceable, 13 or that substantial legal questions are presented
relating to whether they are enforceable, thereby rendering their consideration meaningless. 14

See In Re Extradition of Pelletier, No. 09-22416-MC, 2009 WL 3837660 *3 (S.D. Fla. 2009)
(rejecting argument that a fugitive’s proffer of a waiver of extradition from Canada. The court
13

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While the Court imposed a waiver of extradition as a bond condition in In Re Extradition
of Sepulveda-Mery, 05-MC-22648-O’Sullivan, it was as one of many conditions, and that case
differs from the instant case in significant aspects. 15 First, the realtor in that case had not been
convicted of the offense for which extradition had been requested; second, he did not
deliberately absent himself from the jurisdiction of a court in the requesting state; and third, a
combination of bond conditions, for example, the Chilean Navy ordering the realtor, who was a
sailor in the Chilean Navy, to abide by the conditions of release, provided a realistic assurance
that the realtor would not flee the jurisdiction of the Court. The realtor also could obtain bail in
the requesting state. Here, Arias Leiva stands convicted in Colombia and he faces a seventeenyear sentence; he cannot obtain bail in Colombia. His willingness to execute a waiver of
extradition does not materially affect the prior Court’s finding of risk of flight given his
demonstrated lack of respect for prior judicial orders, a lengthy prison sentence awaiting him in
Colombia, and the uncertainty of the enforceability of waivers of extradition in the courts of a
separate sovereign.
Additionally, Arias Leiva alleges, as he did at the bond hearing, that the United States
endorsed his flight from Colombia. This is simply inaccurate. The U.S. Embassy required Arias
noted that “it appear[ed] that such a waiver would have no effect in a Canadian court, and that if
the United States attempted to extradite [defendant] from Canada, [defendant] would have to
waive extradition anew in the Canadian proceeding.”).
14
See United States v. Botero, 604 F. Supp. 1028, 1035 (S.D. Fla. 1985) (“[T]his Court doubts
that a waiver of extradition executed by Mr. Botero under these circumstances could ever be
considered voluntary and enforceable. . . . Any waiver he executes here in an effort to secure his
release would have to be considered suspect.”); see also United States v. Castillo-Bourcy, 712 F.
Supp. 927, 931 (M.D. Ga. 1989) (“Extradition of defendant . . . from the Republic of Panama [by
way of his consent,] as shown by the inability of this country to secure the presence of defendant
Noriega, does not appear to this court to be a realistic possibility. Such provision[], then [is] as a
practical matter, useless.”).
15
In the other case cited by Arias Leiva involving an extradition waiver, In Re Extradition
Waller, 05-MC-22141, the Government had stipulated to bond.
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Leiva to go through a lengthy and arduous process before issuing his visa, for example, by
requiring him to present Colombian court documentation regarding the status of the criminal
proceeding. Arias Leiva produced court documents which indicated he had not been convicted
and allowed him to travel pending his trial. Based on these assurances, the U.S. Embassy issued
Arias Leiva a nonimmigrant visa. In 2014, he speculated in discussions with Mr. Blakeney—an
officer who was not charged with issuing visas—about the possibility of asylum. However, Mr.
Blakeney never encouraged Arias Leiva to apply for asylum in the United States nor opined on
the merits of such an application. Arias Leiva never communicated specific plans to flee to the
United States, and he in fact returned to Colombia after traveling to the United States on the visa
on two occasions, in late 2013 and early 2014. To be certain, the U.S. Embassy exercised great
caution before it issued a visa to Arias Leiva and immediately revoked it after violated the terms
of his visa by remaining in this country.
Accordingly, Arias Leiva is a risk of flight. The Court need go no further in order to
deny his application for bail. He has been unable to meet the necessary independent basis to
obtain bail, and so the Court need not even consider any argument regarding special
circumstances.
B. Arias Leiva has not demonstrated special circumstances
Even if the Court were satisfied that the fugitive is not a flight risk, the fugitive cannot
demonstrate to this Court that “special circumstances” exist which would justify bail in this case.
The fugitive has a heavy burden to meet in proving the exceptional circumstances that would
vitiate the strong presumption against bail. See In re Extradition of Hernandez-Andrade, No. 16MC-21470-MCALILEY, *1 (“Determining the existence of special circumstances involves a
fact-specific inquiry and special circumstances will be found only where justification for release
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is clear”) (citation omitted). Specifically, Arias Leiva relies of multiple grounds, some already
rejected by the prior Court, without submitting any meaningful new evidence: (1) lack of
diplomatic necessity; (2) anticipated length of delay, and (3) likelihood of success on the merits
of the extradition request. None of the alleged grounds in this case, however, even taken
together, constitutes “special circumstances” under the standards developed by courts following
Wright. An analysis of the facts in this case in light of these standards demonstrates that Arias
Leiva has not met his burden for the extraordinary relief he requests.
1. The alleged lack of diplomatic necessity is not a special circumstance
Arias Leiva suggests that this Court should determine whether Colombia has shown
sufficient “diplomatic necessity” for seeking his extradition and, if it has not, treat that as a
special circumstance justifying bail. His rationale seems to be that Colombian authorities could
not reasonably be concerned or affronted if this Court were to release him now. This contention
is unavailing.
On July 16, 2014, the Supreme Court of Colombia, issued a judgment convicting Arias
Leiva of both offenses, and sentencing him to 209 months and 8 days of imprisonment. That
court immediately issued a warrant for the fugitive’s arrest on July 18, 2014. On November 21,
2014, via a diplomatic note to the United States, the Government of Colombia formally
requested the extradition of Arias Leiva. The period of time that elapsed in this case between the
conviction on July 14, 2014, and the extradition request on November 21, 2014, is far shorter
than the time elapsed in other cases where courts have rejected arguments of special
circumstances based on delay. See, e.g., Extradition of Drumm, No. 15-MJ-1104-DLC, 2015
WL 8492037, at 4 (D. Mass. Dec. 10, 2015) (seven-year delay in seeking extradition not a
special circumstance warranting bail); Extradition of Drayer, 190 F.3d 410, 415 (6th Cir. 1999)
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(fourteen-year delay in seeking extradition did not bar extradition); Martin, 993 F.2d at 825
(seventeen-year delay in seeking extradition did not bar extradition).
Allowing a fugitive the opportunity to flee because the request for his extradition was not
executed sooner undermines the United States’ ability to comply with its Treaty obligation. The
Supreme Court’s rationale for the presumption against bail in extradition cases was the need to
ensure that the United States can meet its obligation to surrender a fugitive if the requirements of
the extradition treaty are met. Wright, 190 U.S. at 62 (“The demanding government, when it has
done all that the treaty and the law require it to do, is entitled to the delivery of the accused on
the issue of the proper warrant, and the other government is under obligation to make the
surrender; an obligation which it might be impossible to fulfil if release on bail were
permitted.”); see also United States v. Hills, 765 F. Supp. 381, 385 (E.D. Mich. 1991) (the
diplomatic necessity for detaining a fugitive pending an extradition hearing stems from the
United States’ “overriding foreign relations interest in complying with treaty obligations and
producing extradited persons”).
Moreover, the extent, if any, to which a delay in filing an extradition request should
factor into the extradition decision is a determination that should be left to the Secretary of State.
See Martin, 993 F.2d at 829 (fugitive “should direct his argument that extradition is unjust in this
case based on Canada’s alleged lengthy delay in seeking extradition or on humanitarian grounds
to the Executive Branch”). The Secretary of State, not a judicial officer, is better positioned to
evaluate whether a delay indicates that a requesting government has “not made prosecution of
this offense a priority.” See In re Chapman, 459 F. Supp. 2d at 1027. Such a judgment clearly
affects foreign relations, not to mention the requesting country’s willingness to honor the United
States’ extradition requests. It also requires knowledge of another country’s judicial systems,
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procedures, resources, and other factors affecting the timing of an extradition request that the
Secretary of State is in a better position to evaluate. See Martin, 993 F.2d at 829 (adoption of
speedy extradition right would conflict with the rule of non-inquiry, which generally “precludes
extradition magistrates from assessing the investigative, judicial, and penal systems of foreign
nations when reviewing an extradition request”).
2. Anticipated length of delay of extradition proceedings is not a special
circumstance
Arias Leiva next claims that the anticipated length of extradition and asylum proceedings
is a reason to grant bail. This argument is also without merit.
As an initial matter, any asylum proceeding, which Arias Leiva claims is currently
pending, would be stayed for the duration of the extradition proceeding. See Barapind v. Reno,
225 F.3d 1100, 1113 (9th Cir. 2000) (noting that “the BIA [Board of Immigration Appeals] has
determined that deportation and exclusion proceedings should be held in abeyance while
extradition proceedings are pending,” and holding that “the BIA acted reasonably and within the
scope of its authority . . . in holding Barapind’s asylum proceedings in abeyance pending the
completion of the extradition process”); see also Matter of Perez Jimenez, 10 I&N Dec. 309
(BIA 1963) (explaining that it is preferable to hold asylum proceedings in abeyance pending the
completion of extradition proceedings because immigration proceedings could lead to the
“possibility of complicating the extradition proceedings,” and “would serve no useful purpose”).
Regarding extradition, the “normal passage of time inherent in the litigation process”
should not be considered an unusual delay warranting special circumstances. See United States
v. Kin-Hong, 83 F.3d 523, 525 (1st Cir. 1996). That is particularly so where delay can be
attributed to the fugitive. See, e.g., Ramnath, 533 F. Supp. 2d at 676 (“It is inconsistent for [the
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fugitive] to argue that a delay caused by her should qualify as a special circumstance justifying
her release.”); accord In re Extradition of Rovelli, 977 F. Supp. 566, 569 (D. Conn. 1997).
Although there will be further court proceedings in this case and possible litigation before
additional courts, delay alone does not rise to the level of a special circumstance. Delay must be
unusual. The Court should not assume that that further proceedings will take an undue amount
of time. Indeed, this Court can ensure that development of the record and the proceedings do not
take longer than is reasonably necessary.
In this case, any delay would be a result of the normal course of litigation. A mere
general intent to contest extradition and any unfavorable decisions is not, and cannot be,
sufficient. Should these proceedings ultimately take an unusually long amount of time, the
fugitive may renew his request for bail at that time. A request on this basis now is wholly
speculative and premature.
3.

The fugitive has not shown a high probability of success on the merits

Arias Leiva argues—incorrectly—that he is likely to defeat extradition due to a lack of
evidence establishing probable cause that the Colombian offenses are punishable under United
States law and the application of a political offense exception. These arguments are premature,
at best.

The assessment of extraditability is a substantive question to be decided at the

extradition hearing and is not relevant to a fugitive’s bail application. See In re Sacirbegovic,
280 F. Supp. 2d 81, 88 (S.D.N.Y. 2003) (the probability of success against extradition is a
subject reserved for the extradition hearing); In re Sidali, 868 F. Supp. 656, 658-59 (D.N.J. 1994)
(probability of success against extradition “relate[s] to whether [the fugitive] should be
extradited not whether he should be released on bail”).

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Moreover, in the outlying cases where courts have considered likelihood of success when
applying the “special circumstances” test, they required the fugitive to establish a “high
probability” of success to warrant bail. See, e.g., Nacif-Borge, 829 F. Supp. at 1216 (no “high”
probability of success); Kin Hong v. United States, 83 F.3d at 524-25 (noting that some courts
have held that special circumstances may include “substantial claims against extradition on
which the relator has a high probability of success”).
Here, the fugitive has failed to establish a likelihood—let alone a “high probability”—of
success:
First, the fugitive’s attempts to call into question the evidence that led to his conviction
relies on an erroneous view of the Court’s role in an extradition hearing. The Court’s role is
limited to making a determination of the sufficiency of the extradition request and the existence
of probable cause. See Charlton v. Kelly, 229 U.S. 447, 462 (1913); Collins v. Loisel, 259 U.S.
309, 316-317 (1922); DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997); Hooker v.
Klein, 573 F.2d 1360, 1368 (9th Cir. 1978).

In the case of a conviction, the Court’s

determination that there is probable cause can be based solely upon the existence of a judgment
of conviction in the requesting country. See Article 9(4) of the Treaty; Spatola v. United States,
925 F.2d 615, 618 (2d Cir. 1991) (where “there has been a judgment of conviction [entered by a
foreign court], there is no need for an ‘independent’ determination of probable cause: the
relator’s guilt is an adjudicated fact which a fortiori establishes probable cause”); Sidali v. I.N.S.,
107 F.3d 191, 196 (3d Cir. 1997) (a foreign conviction obtained after a trial at which the accused
is present is sufficient to support a finding of probable cause for the purposes of extradition),
cert. denied, 522 U.S. 1089 (1998).

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Arias Leiva does not dispute the existence of his conviction and seventeen-year sentence
for embezzlement and contracting offenses. The Colombian conviction record, especially at the
bond stage, is more than sufficient to establish probable cause for the offenses. See Judgment
and Conviction Record, pp. 445-640.
Second: with regard to the fugitive’s conclusory argument that the alleged conduct does
not satisfy the “dual criminality” requirement of the Treaty, for the embezzlement offense he
could be charged under federal law with, for example, violations of embezzlement in violation of
18 U.S.C. § 641 or theft concerning programs receiving federal funds in violation of 18 U.S.C. §
666. Under federal law, the maximum term of imprisonment for embezzlement is ten years if the
sum of the value of the property is greater than $1,000. 18 U.S.C. § 641. For theft concerning
programs receiving federal funds, the maximum term of imprisonment is ten years. 18 U.S.C. §
666. For the contracting offense, Arias Leiva could be charged with a violation of 18 U.S.C. §
1001, for which the maximum term of imprisonment is five years. According to the extradition
submission at page 369, the embezzlement offense involved $25,087,449,066 Colombian Pesos
(approximately $8,500.000 U.S. Dollars). For the contracting offense, Arias Leiva approved
agreements with Instituto Interamericano de Cooperacion para la Agricultura (IICA) that
contained false information regarding the specialized scientific or technological nature of the
company. See Judgment and Conviction Record, pp. 521-538, 558-559. In Colombia, the
fugitive has already been sentenced to a term of imprisonment of 209 months and 8 days.
Therefore, the fugitive’s conduct amounts to an offense punishable by imprisonment for a period
of one year or more in the United States and in Colombia, satisfying the “dual criminality”
requirement of the Treaty. See Article 2 of the Treaty (“Extradition shall be granted in respect to

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an extraditable offense only if it is punishable under the laws of both Contracting Parties by
deprivation of liberty for a period exceeding one year.”).
Third: Arias Leiva maintains that his extradition will be barred under Article 4 of the
Treaty because the offenses for which his extradition has been requested are “political” or,
alternatively, because the request is politically motivated. 16 The express language of Article 4 of
the Treaty reserves the discretion to determine what offenses are of a political character to the
Executive branch—which in this case means the United States Secretary of State. Thus, it is not
within the purview of this Court to consider Arias Leiva’s political offense argument.
But even if the Court were to entertain that argument, the offenses of which Arias Leiva
has been convicted are not covered by the political offense exception.

Political offenses

generally fall within two categories: pure political offenses and relative political offenses. Meza
v. U.S. Atty. Gen., 693 F.3d 1350, 1358-59 (11th Cir. 2012). Arias Leiva’s offenses are clearly
not pure political offenses, which are defined as acts aimed directly at the government that do not
contain any of the elements of ordinary crimes, such as treason, espionage, or sedition. See id. at
1358. The offenses are also not relative political offenses, which are defined as otherwise
common crimes committed in connection with a political act, or common crimes committed for
political motives or in a political context. Id. at 1358-59. To demonstrate that extradition is
sought for a relative political offense, a fugitive must establish (1) the existence of an uprising or
other violent political disturbance at the time of the charged offense; and (2) that the “alleged
offense was incidental to or in furtherance of the uprising.” Id. at 1359. Arias Leiva has not
Arias Leiva continues to cite the timing of his arrest on the day the Government of Colombia
signed a peace accord with the FARC for additional support of his “political motivation”
argument. The undersigned explained at the bond hearing that the timing of the arrest of arrest a
couple of weeks after issuance of the arrest warrant was solely the result of a preplanned
vacation [DE 24, p.17].
16

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alleged any facts that meet the first prong, and even if he did, he cannot, under any circumstance,
establish that his actions were incidental to, or in furtherance of, quelling any uprising.
To the extent Arias Leiva argues that the request for his extradition should be denied
because it is allegedly “politically motivated,” that is an issue to be decided by the Secretary of
State alone—and not the Court. Under the relevant case law, “[i]t is the settled rule that it is
within the Secretary of State’s sole discretion to determine whether or not a country’s requisition
for extradition is made with a view to try to punish the fugitive for a political crime, i.e., whether
the request is subterfuge.” Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir. 1981) (emphasis added);
see also, e.g., Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir. 1971).
Accordingly, because he cannot avail himself of any political offense or political motivation
exception in the instant extradition proceeding, such a claim is not a valid “special circumstance”
justifying bail.
In sum, the fugitive again attempts to convince this Court that he is a good bail risk. The
fugitive’s position, however, is legally insufficient under U.S. case law to justify granting bail in
an international extradition proceeding. Allowance of bail in any amount would not guarantee
the fugitive’s presence in court and would invite the possibility of embarrassing the United States
in the conduct of its foreign affairs. While forfeiture of bail in domestic criminal cases is
designed to compensate, at least in part, the court that is seeking the accused presence for trial,
forfeiture of bail in international extradition cases due to the failure of the fugitive to appear
would leave the requesting country, here Colombia, without either remedy or compensation.
And none of the letters of support submitted by Arias Leiva change this fact. 17

Arias Leiva describes Alejandro Ordonez Maldonado as the Attorney General of the Republic
of Colombia. Mr. Ordonez Maldonado heads a Colombian government entity more akin to an

17

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Should, however, the Court be inclined to grant bail in this case, counsel for the
Government respectfully requests that the Court submit special written findings as to those
specific matters that are found to constitute “special circumstances.” Moreover, in order to
protect the ability of the United States to meet its treaty obligations to the Government of
Colombia, counsel requests that the Court notify the parties a reasonable time in advance of any
contemplated release order in order that the United States can consider the matter of whether,
under the circumstances, to seek a stay pending possible appeal on the bail issue.

[Remainder of the page intentionally left blank.]

inspector general’s office in the United States and he does not oversee the entity that charged
Arias Leiva with criminal offenses.
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III.

CONCLUSION
Fugitive Andres Felipe Arias Leiva is a flight risk. He offers no validated reasons why

this Court should reverse the prior finding of the risk of flight he poses. While on release
pending trial in Colombia, he absconded shortly before the imposition of judgment and sentence
by the Colombian Supreme Court.

He therefore cannot prove that he will abide by bail

conditions imposed by the Court.

Furthermore, he has not demonstrated that “special

circumstances” exist which would justify bond in his case. Finally, the fugitive’s release on bail
would have negative implications for U.S. foreign policy in cases where the United States seeks
extradition of fugitives from Colombia. Based on the foregoing, the United States requests that
the fugitive’s request for bail be denied.
Respectfully submitted,
WIFREDO A. FERRER
UNITED STATES ATTORNEY
/s/ Robert J. Emery
Assistant United States Attorney
Court ID No. A5501892
99 Northeast 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9421
Fax: (305) 536-4651

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed on 11th day of October, 2016, with the Clerk of the Court using CM/ECF. I further certify
that the foregoing document is being served this day on counsel of record via transmission of
Notices of Electronic Filing generated by CM/ECF.

/s/ Robert J. Emery
Assistant United States Attorney

25

 6-mc-23468-UNA Document 31-1 Entered on FLSD Docket 10/11/2016 Pa

GOVERNMENT BOND EXHIBIT A
(Submitted to Chambers and Counsel of
Record)

 6-mc-23468-UNA Document 31-2 Entered on FLSD Docket 10/11/2016 Pa

GOVERNMENT BOND EXHIBIT B
(Submitted to Chambers and Counsel of
Record)