united states and mexico in particular article seven which is titled lapse of time the gist of article seven is really quite simple mexico has agreed that was there with respect to lapse of time laws will comply not just with its own laws but with the laws of the united states as a result if the united states could prosecute due to a lapse of time the mexico can't extradite and it is really that simple  straightforward and that interpretation is supported by the plain language of the statute historical background and also by rules of construction now as for the plain language that the drafters chose to write this phrase in and in a way that defined a class of was instead of just identifying a specific type of law and that general language shows a general purpose to include anything that falls in that type of language you know in the present or has passed and it's unfair to require the defendant at that point to have to prove the actual prejudice that has to prove memory spilled and so forth it was going to be enough prejudice to dismiss the case  and you know i've been speaking in decisions the supreme court other courts have indicated that you know this is a matter of a lapse of time there may be other inquiries involved well i understand your limitations there are treaties refer to one or the other i believe there's one reference that it's some point specifies with the statue limitations applies but they usually refer to one of the other and you know it is the said valentine we must assume that the representatives of the government are aware of these two options you know they were talking about this case of course has in the ribs in the government when negotiating extradition treaty are aware of their options for the drafters and when they choose the broader language it shows a general purpose to include whatever falls in the class you made the comment you argue that the was the aloneness is that that's pronunciation of the case they held the state department negotiators to knowledge of a district court decision that had interpreted the clause that used thirty some years earlier in that case the  extradite its citizens based on that clause and then about twenty years later eighteen twenty years later the united states negotiated with france use the same clause from the mexican make of the fact that the senate judiciary reports committee or board make no comment now this being a significant change from the eight hundred ninety nine three those are you know i mean for the is the government early pointed out is the development of the speedy trial close to the law with teeth and you know the sense that they're giving american negotiators the perception that they come from a country with a to and even the government acknowledges that definitely by that time the speedy trial close was well you know well in the headlights what do you make of the fact that the government's argument is well that the limitations and laps government has not been able to to explain the drafters chose this broader language and although you know speaking casually one might say that sure this lapse of time article which ones now and which ones broader i mean you concede you lose if it just says limitations right there yes yes but clearly implied in limitations was the word time it was applied to all the imitation some government prosecutions barred by time limitations you know i think in the terminology used by the courts and so forth limitations were very commonly referred to statute of limitations and and by limitations would it and in that it would include things like latches and property rights and even speedy trial rice things that are beyond simply statute of limitations so in that sense the la of phrase would be broader yes your honor and you know it throughout the twentieth century i mean there are lots of uses of the phrase lapse of time to include various defenses you know and the restatement of foreign not tried to say it's a speedy trial act you know the government makes some of the arguments that you would expect in an international in an international tribunal i mean they'd be looking at both languages and they'd be looking at the international discourse you know i get much of that from either one of you that's why i'm asking this right if both of you say well the other one's not arguing it and i guess we'll never get i believe that  what's been except in this case is that article seven is properly translated in english if it was you know we don't know his negotiate in english or spanish which is the translation but i think it's accepted that there is no meaningful difference and you know that the government here is not identified any negotiation documents the types of documents that one would refer to in terms of deferring to the union but what about how the document has been applied for that language has understand two things one why you have barred by a lapse of time versus barred by a limitation is different why is why that wasn't reported in the document that specifies the differences from the old one you addressed a little of the it and then i'm struggling with the other treaties better at the you're such as turkey which evidently was submitted on the same day uses lapse of time but it notes in transmitting it that the lapse of time provision referred to often says barred by statute of limitations and the same sort of analysis as you know we are a government of laws not of committee report and this committee reports are not what boiled down and become the law and just because whoever is writing a particular committee poor committee report wasn't report can carry such weight that overcomes the the language of the statute and you know we were asking to send the drafters knew about some things such as the  treaty from eight hundred seventy seven or something with the statute of limitations in lots of time which the government has noted but i think it's more likely that they know about my lotus a district court case where the judicia said what that clause means and the drafters should be expected to understand this isn't it true that even justice scalia who's kind of the leader of not looking at legislative history approves of looking at the negotiating history of treaties to interpret deference when the opinion on this particular issue comes up in a case and involves individual rights here now and i know you're out of time but this again this moments case was the only published case on this of thing they do there which is quite arbitrary which is you know help in our agreement to close the matter off to the side get an arrest warrant and then light years in years past without lifting a finger to try to let the person know or even t just the three page requests that they had to submit to get extradition so you put mexico a notice that post accusation lay is significant to anyone mexico can try to figure out all the nuances of there was a request to extradite someone from mexico from mexico you are of the well the defense would be raised if i get a question i the defense will be raised in the mexican courts and they would review that kind of thing which i said a couple examples from england were there they have reviewed whether american prosecutors acted promptly enough to satisfy the speed drug laws that would mean the makes and authorities have to apply the seven does which is putting the next in prose here in american shoes and vice versa but that's what they've done and that's not so much of a problem if you just have a clear fairly clear time limit once once you have this is what concerns me actually let's once you have  instead each party in an international agreement has agreed to apply an amorphous standard that courts in one state are familiar with the courts and the other presumably art you have kind of an odd good afternoon may please the court dave lieberman for the united states if i could start out with a line of questions that judge rogers and judge strand post at the end of my colleagues presentation what will happen the united states currently has eighty extradition treaties on the books that you some variant of the lapse in time phrasing and so in mr cruz's view fugitives who are sought under those treaties will all raise claims under barker vs window and extradition judges around this country w have to decide not just the time issue but whether the foreign prosecutors and judges in those countries acted with due diligence or acted in bad faith or negligently and are extradition judges around this country with respect to those eighty countries will have to decide whether the time delay is likely to prejudice the defendant or the fugitive back in mexico or back in one of those foreign proceedings that would be a major expansion of extradition hearings in this country these are typically limited affairs that does portend significant consequences on our relationships with our foreign treaty partners and it runs headlong into several admonitions from the u s supreme court in this one and all those individuals the court can correct me if i'm wrong is that if there's been a year of two way between the filing of charges or in this case the filing of the arrest warrant and then whatever operative act in our country that would be the start of the trial in this case it appears under mrs mr kristof you it's the filing of the extradition request under barker if the delay exceeds one year you then go to all three barker factors time prejudice to the defense and negligence to the case the bucket versus when go under similar factual circumstances baka vs lingo is invoked in this case only for the balancing factors to determine  delay that would be the end of it there wouldn't be any benefit to be the tennis even even if there was a speedy trial what is exactly our our case in that sense is very narrowly we would be mr cruz would go back and the district court would decide whether or not the mexican government acted diligently or negligently on bad faith that's a proper consideration under the back of factors and that is exactly something that courts including the u s supreme mr bruce's claim which goes to the description of the lapse in time language in this treaty would apply to every treaty on the books that has the same phrase and he hasn't disputed that in the government's concern here is that we every one of the fugitives under any one of these treaties is going to be in the same shoes as mr cruz we have concerns on that for the comedy principles and for our extradition system but we also don't think that that aligns well with the plain language of the treaty which is always the starting point we read the plain language of the bar by lapse in time is referring to a time period in which the prosecution must commence if that period lapses the prosecution cannot occur that's a classic  definition of limitations period but it's also reciprocal so american citizens who are experiencing a lapse of might be incarcerated somewhere they would get the same benefit if the roles were reversed that the me no sixth amendment rights in mexico that's the nearly case in one thousand and one from the supreme court when a citizen commits a crime in mexico the supreme court has said for over a century he submits himself to the rules and procedures and safeguards in that country now mr cru has an additional protection under the treaty in this case the us statute of limitations he also can apply to the secretary to stop the extradition in his case but in the government's view that's that those are the protections now the plain language that i was referencing earlier that doesn't marry up well to the speedy trial clause because the speedy trial causing the courts supreme court said this in barker there's no fixed point it's not about time period it's about a balancing test with equitable considerations the bast plain language interpretation that we see is referring to countable days and we think that that is also born out by the context the greater context of sort of trite but course often say we don't construe construe isolated words and statutes and treaties we construe everything as a whole and the extradition hearing two hundred years historically been limited to a probable cause determination and very bad straight judge decides as a back to eight hundred seventy seven which is when this country started changing from limitations to lapse of time it picked up speed in one thousand eight we've pulled every stroke of document we can find going back to eight hundred fifty and unfortunately there's no clear signal is to why the change but we do our best judgment as to why the change from limitation the lapse of time is to accommodate our foreign treaty partners in the united states we use the term statute of limitations that is a phrase law most of our treaty partners are civil law system such as mexico and they don't use the statute of limitation term they use the term prescription and so in our best judgment our diplomats wanted to move off the u s centric language which is limitation and apply a phrase that was more neutral that referred to the bodies of law from both countries in the in it's they are there not clear  but the best evidence that we see of this is in the the john moore eight hundred ninety one treatise in the state department digest that we cited from one thousand nine hundred sixty eight both mr moore and the state department identified the lapse of time phrase and then said it commonly refers to statutes of limitations and prescription and this goes right back to a question the judge rogers asked what's the term used in article seven of the mexico treaty the term is prescripti reply brief in this case to try and figure out what the change was we saw no concrete evidence that this is just the best inference that we've come up with the government clued spanish language the spanish language from the eight hundred ninety nine  so the spanish language version is in the treaty i think it's in the record the official version of the treaty has both an english language and a spanish language document and are the inference that we take that our diplomats are trying to encompass both limitation and prescription that language is consistent with the history that we cited to in our supplemental statute of limitation yes it in the civil law countries it has the same meaning the why would we keep that language that was already in there in english  the government may not take appeals from thirty one eighty four proceedings and that was a thirty one eighty four proceeding or maybe the predecessor statute mr holley says we could have refiled the request in the northern district of alabama but i presume we would have been met with the same fate or we sixty eight sets forth the official views of the state department with respect to questions of international law they summarize the digest summarized they my lowness litigation mentioned mr mylan a speedy trial claim and then reprinted the official guidance from malcolm wilkie the head of the criminal division of the of the justice department the official responsible for the all of our extraditions at that time and mr wilkie said speed trial protections do not apply  extradition proceedings that was the position of the justice three with a federal opinion from the district court in alabama yes but that opinion didn't bind the government right but you'd think that it would provide some notice hide we better be careful if we bro to lapse of time because we've got a federal opinion that says that that includes a speedy trial your honor well first of all when it's hard for me to we had scores of extradition treaties done on the books with the of time language and under that theory the state department would have had to go back and renegotiate all those treaties to clarify that lapse of time does not mean this my last decision and that's not a practical response to a single adverse decision non binding issued by one job may be different if the supreme court of the court of appeals issues a binding decision that says lapse of time equals the sixth amendment but that's not what we had all when you got broad words like lapse of time even if the negotiators did think that it meant anything beyond that to the limitations of you've got sort of a term i don't think sometimes morphed into that and i'm thinking like the equal protection clause when brown v board of education came down  aspect of drafters didn't think that you know the fourteenth amendment didn't know about segregation or the o'berg of well same sex marriage certainly the negotiators didn't think amendment came down that equal protection included same sex marriage and yet court said one that favored the government that had to do with he was arguing that language limitations had to be the wall had to be the same in both countries act or no it didn't have to be the same woman court said that there's two reasonable constructions in front of us and they went with the government if we don't have that situation here let me just to my second point in the history is to interpret this broadly two hundred years of extradition proceedings on the books and i think both mr and mr holly and i agree that the sixth amendment does not by its own terms apply to extradition proceedings and the sixth amendment does not by its own terms regulate the conduct of mexican courts and mexican prosecutors so the question for you here is does this lapse prosecution in mexico yes your honor and the backbone principle is that sixth amendment rights do not cause does not bind the hands of a mexican prosecutor and a mexican judge and so the question for wanted to take the dramatic step of bringing the sixth amendment to the table and extradition proceedings our diplomats would've done so openly conspicuously barred by the process by the laws of either country relating to lapse of yes my point here is that if if our diplomats in the senate wanted to take this dramatic step and start regulating the conduct of bexar can prosecutors they wouldn't have done it through a benign phrase because the statute of limitations it doesn't apply to after indictment which is what cover is covered by the speedy trial clause we wouldn't have any equality between mexico and the u s we have a quality and that both countries limitations periods are fully ingrained into the treaty as to other more rights than us of mexico gets gives its citizens the rights that it's granted under its limitations period the us has a separate limitations peered with separate rules our citizens get that and mr cruz gets both now the question is does he get the edition of protection of the sixth amendment and we think the answer is no it doesn't meet any traditional definition of limitations period is not a the four cases that the majority cites for the proposition that where you have an ambiguous treaty that implicates personal rights such as the speedy trial right is a personal right that that should be those treaties were about promoting rights of citizens of one country living in the other country they had rights creating language and so the purpose of the treaty was to create an agreement to give new rights are recognized rights to  foreign citizens living in x y z country the purpose of the extradition treaty is not to grant individual rights to mr cruz the purpose of an extradition treaty is to formulate a system between united states and mexico for the purpose of exchanging individuals who have been charged with crimes in their respective country and so in those cases inmates perfect sense to read the treaty consistent with its purpose granting individual rights to citizens in this case as in factor which is an extradition case it makes sense to read it towards the purpose of creating the extradition relationship and this is why for circuits are on record as reading factory cited them in our briefs and saying when there is reasonable and which one of the other don't choose the one that creates new obstacles to extradition there was a decision that was me we're facilitating extradition but we're going to give the defendant where ever found the benefit of the laws in both countries regarding time that would that would rule in his favor so you get the benefit of the shorter steps or limitations no matter where you commit the crime and you get the benefit of the mexican statute that pertains to prosecution after indictment right yes ok and then the corollary in the u s system is the speedy trial right we agreed that they protect complementary interests but we agree that the sixth amendment and the limitations appear to protect complementary interests but the sixth amendment is not in and of itself a statute of limitations and it  traditional definition if we are reading a factor is that where there's if there's any dispute about that go with the one that does not create new obstacles to extradition in the final point and this is the point that i started with we think in this is the judgment of  just the department of justice but the state department in that those are views that the court of traditionally affords deference to is that putting the barker factors into with thirty one eighty four proceeding having  whether or not for foreign officials have been diligent or negligent that is not that is the type of inquiry that federal courts typically shown these are the types of decisions that the mexican courts just appl provision so it doesn't matter what happens if you're if you're indicted in the law allows five years five years of lapsed you're immediately excused the prosecutions immediately bart it doesn't matter how diligent they were it doesn't matter where you or doesn't matter whether you asserted your right nothing matters that's my understanding in mexico has fairly long limitations periods because it protects the entire ballgame and in this case i think it's forty years but that also includes the time of punishment what it took what typically happens in a thirty one eighty four proceeding as happened here is that when mexico presents the extradition request if it presented represented to us that we have brought this case and a judge a mexican judge has made a determination that the mexican what statute of limitations lapses on x date and extradition judges in this country usually defer to that finding unless the construction of lapse of time he thinks that would apply under what under his theory of the case and he says it may not do much work but he has suggested that the speedy trial act could apply in his pleadings have also suggested cited to state statutes and cited to com citizens and outside of that one by lowness case which the eleventh circuit twice discredited it we have not found any instance or an extradition judge district court or court of appeals has entertained only statute of limitations in any because i'm not an expert in common law versus civil law countries but as i understand it statute limitations in common law countries operate differently than statutes of limitations in civil law countries that may really reflect the differences and way those proceedings are conducted ours are more adversarial there are more inquisitive and so it's seems natural to me of why they would define their limitations clock and their rules differently the point is here mr cruz gets the benefit of both and does he get the additional protection of trying to stop his mexican prosecution by reference to the matter if i understand you correctly you're saying that if there were an american that operated the same way as the mexican  not get the benefit of it because by definition it's not the statute of limitations as we understand i misunderstood your question if congress radically altered the federal statute limitations to adopt one closer to the one that  uses then yes he would get the bet he gets the benefit of the applicable federal us limitations period and congress can change how we've done it in it we've in the past defined it from the period between the time of indictment to the time that the trial a prescription however it wants the united states can do the same in the treaty gives mr cruise the benefit of both what it doesn't give him are protections of anything outside of the statute of limitations and  and given the given the interests at stake in the concerns that the state department has about having courts just inquire into the motives and good faith or bad faith of foreign officials this question require a clear signal that the state department and congress intended to bring the six amendment into play intended to subject foreigner judges and prosecutors to metrics designed for us criminal trials and we think mr simply because there's no bill or rights in mexico with the sixth amendment in or what would you say about that well yes right i do believe that article seven has what's called the government's going rights creating language or saying the treaty has no rights creating language it does give us citizens or whoever is in the united states rights gives them the right to assert whatever lapse of time defense exists in the united states or specific question it i thought judge clay was asking me if i was or misinterpreting this he wants to know if it's true that in a mere citizen who commits a crime in at the time but he has become one but yes if you know i think of occasion in mexico and have a car accident and pay the so well and then charge i don't know when i come back home you know years and years can offense government said no the sixth amendment does not apply to an american citizen in mexico criminal cases if you go that i believe that is true you are the background presumption is that the constitutional rights do not apply to things overseas now but question but by the same token the statue of limitations don't apply you there and that is the work the article seven does it gives those it creates those rights  to take those rights away from someone else that would would you agree that if this i haven't looked at the spanish language at the spanish language uses language that's the cognate of prescription that that would be negative for your case i don't think so you know i think it does that no i don't think that would be negative at all i mean the government and this is one reason why i mean you know i testified that prescription is sort of the civil law version of statue  limitation inmates not the same because it's in the civil law but that's it i did it performs largely the same function i mean if you're talking civil lawyers talking to two common law lawyers talking about the statute of limitation the other  have prescription isn't that right you know the government isn't explained the change in the language in the talk about the change in the language i'm talking about the current language he says the current language uses a word which is very close to the english word prescription which is what senate reports the senate is the ratifiers of the treaty so we look at the text of the treaty as understood by the drafters and also as understood by the ratifiers which are the u s senators and when there's no indication in the senate reports that this was a change isn't it rather stretch to say that this was a change you know i don't think it was intended to be a change never seen an  raised it doesn't raise that often because it just doesn't happen that often i don't think was such a major change that the senate had to be notified about what the senate didn't know that it didn't tend for it to be a change but they are the ra s they ratified it and you know this is a question of did mexico and the mormon did they get permission from the senate to extradite expel us isn't despite the violation o camp it isn't it necessarily true that if we accept your argument that if mexico doesn't want to extradite somebody that we want them to make to extradite in this case or in the newspaper right now talking about and they don't want to doesn't except in your position give them all sorts of talking points for why they don't they can just pull out and make some sort of colorable argument about barker versus swingle and  and say no and make it very difficult for our negotiators to say oh no you're committed to extraditing this person i don't see you don't see anything like that ever happening you know i don't see that as