the first case level of the warden warning it may please the court my name is david marcus and i represent andras arius i'd like to cut right to the heart of it as you say judge marcus which is unconstitutional and that's not a one off statement in one case in a in dicta this court has repeatedly said so and it was the central holding of a case called  in that case the defendant raised the very same argument that the government raises today and that is that the treaty should govern and that the rule of specialty in the treaty should apply and this court held no there was no treaty in force the treaty cannot govern therefore and the rule of specialty was in a political and so that was the central holding what are we to make of the fact that in this case the state department tells us in a sworn manner the treaty is still in force in effect as far as the united states is concerned and the colombians tell us or at least somebody from colombia boarding to speak for colombia tells us this treaty is still in force and effect what do we make of of that fact really those are both by the two sovereigns that signed and ratified the treaty right i guess a couple points about that first both sovereigns recognize that the treaty has been declared unconstitutional that fact is undisputed it will be undisputed this morning and it's been said repeatedly so when you say that it's been declared unconstitutional what was struck down was the provision in colombia implement to the treaty right correct it was it was not ratified what the colombian supreme court said and this is in the note from the republic of columbia that the treaty was struck down declared unconstitutional because it was not properly ratified and what that note says which is docket entry fifty four one is that because it was struck down extradition in colombia is determined solely internally by internal laws and not through the treaty and really no one has ever contested that judge marcus i mean in the court below the government lawyer admitted quote the united states agrees that it is colombia's view that the treaty is not in effect and that's a documentary fifty three page twenty five the government also admitted quote the government of colombia is not requesting areas extradition based on the treaty so there's no real dispute here that the treaty is not in effect in colombia and there is no such thing as a one sided treaty of course treaties have to be bilateral as the united states ever stated that that it does not think the treaty is in effect yes the state department in a cable which we filed as supplemental authority on january eighteenth said the state department said internally that there is no treaty and that they need to negotiate the government the us the government should negotiate an actual treaty to avoid confusion this was a state department cable filed by the government in the valencia trujillo case we uncovered that and filed a supplemental authority just this year so even the state department itself has admitted that there is no treaty in force i me ask come back again to where i begin and ask you then to help me with the presentation from the colombian government which your search the treaty of extradition between the republic of colombia in the united states signed on september the fourteenth one nine hundred seventy nine quote continues currently in force in accordance with the international law as provided by article twenty one subsection four of the same treaty and of article fifty four of the vienna convention as neither the republic of colombia nor the united states of america have notified themselves of their intention of terminating it yes we're to discard it because of what the colombian supreme court said so so just to be clear on what colombia says your honor in the previous paragraph they admit that extradition quote extradition requests that the united states of america presents to colombia cannot be processed neither granted or denied in accordance with the treaty and so colombia asserts a number of facts with we agree with the legal conclusion which you just quoted is where the disagreement comes and what this case is about so so to frame the issue i guess slightly differently if the facts are in agreement which is colombia doesn't follow the treaty that fact is in agreement by both sides let me ask a question a slightly different way yes i guess what it boils down to is whether the treaty has been voided or whether it's avoidable that's maybe one way to frame the question and i ask the question this way i think it's clear that the colombians continue to extradite people or at least some people to the united states who went to request pursuant to what they characterize as their local law correct and do we continue to extradite people to colombia not pursuant to local law but went to the treaty obligations signed by the senate correct so this is sort of the asymmetry in the how the treaty is handled one side continues to give literal meaning and send people based upon it of all the things we met and the other side continues to extradite but not based on the treaty would that make the treaty nolen void or would that treaty be voidable which the parties could have formally dumped simply by going through the mechanism of terminations but which they did not know and void your honor because if you look at article twenty one you understand that the heart of my question of course and that's if we look to the treaty itself article twenty one one said the treaty has to be properly ratified columbia says it wasn't and so the treaty is is void in fact this court i have and just to be clear about when colombia sends people here to the united states pursuant to the internal law it doesn't always do that and if there was a treaty they would one of the things that have a treaty that's in effect because is it necessarily void where one side complies and the other does not at least in name under oath that's treaty absolutely a treaty must be bilateral that's black letter law first of all under the treaty itself article one says that it has to be reciprocal both sides have to do it if the treaties in effect but also the senate would never have approved a one sided treaty were only the united states is forced to comply remember in this case and we've seen it lot right but the senate chose not to terminated its there's nothing to terminate your honor there's nothing to tell there is a terminating process isn't there yes if there were a process by which to the un the convention talks about how a sovereign nation otherwise dump a treaty that it entered into yes and what was that process you know you would have to get one wanted to formally terminate a treaty what would you do if there was a treaty to formally terminate it you have to give notice to the other side ok which any notice given by the united states no no your honor because there is no treaty there is no treaty in effect so so there is no treaty for the united states to disavow and we know that from article twenty one one of the treaty we also know through the conduct of both if if it's true as you say that a that one side can void a treaty by their conduct just how closely is an article three court to look at the conduct of the other party to determine that they have that they have avoided it my argument is not that the conduct shows that they voided it but the conduct shows that it was never put into force your honor so here for the last thirty years and i would challenge the government to get up and dispute this for the last thirty years colombia has never extradited pursuant to the treaty ever and that's because it was never put into force so it's not that we're arguing that at some point colombia decided to void the contract and avoid the treaty and the stop doing it it's that it has never done it it's been found unconstitutional in colombia and so there is no treaty in effect and all of the conduct by colombia shows that especially recently where they're saying we're not going to extradite fark terrorists and murderers i mean that's they've come out and said it the president president santos says there's no treaty we don't have to do that so he did file a petition for asylum as soon as he got here to the united states that asylum petition was pending for two years before the extradition request and i just i think it's a really important point if the court never been acted on brecht has the government responded to it the government initially responded to it and in fact mr arius was set to be interviewed by immigration on that asylum petition that was correct and so what that means is if we win this case he would just be going through that asylum petition if he's granted asylum has there been even a order over movability or anything happened there and colombia whether he gets asylum or not he couldn't be sent back to colombia by the united states could he couldn't be sent back pursuant to the extradition treaty but he could be deported through the immigration process if he has no status so the next step would be if he's granted go even if you when they can remove him if he's not going to radically if he's not entitled to asylum on the grounds of the well founded fear political persecution right which we think he would be granted asylum because it's been quite clear and found that the colombian supreme court pursued him politically there's been lots of reports on this that maybe outside of the area of this argument but that's well documented that he was politically pursued after he lost the presidency his rival initiated this lawsuit this criminal lawsuit in colombia and it's been found later to been politically motivated and not supported let me ask you a different question that's raised here going beyond the question of whether there's jurisdiction and whether there is a treaty it's a requirement of finding probable cause that there is a charge in violation of columbia law and then we turn to do criminality and it's still criminality that i want to ask you about and i'm seeking your your thoughts on dual criminality the united states has got to show that the crime the nature of the criminal penal law in colombia has some comparable statute here and they've got to show that the crime charged there if you will states a claim for a crime here under an american statute we agree so to the extent you're looking at six forty one as the criminal statute under title eighteen here the charges there have to state a crime under six forty one he and they have to state a crime under a thousand and one here those are the two comparatives the government offers in the case is it enough to establish that the a charged are made criminal by both laws or is there some requirement that the corpus of evidence that actually shows that the conduct is a violation of the law is that enough to charge what do you have to an extradition review in some sense the evidence to a foundation you understand my question in some sense you have to look at the at the facts because the facts here show that he didn't take any action he i guess what i'm saying you have to look at the facts assume but if you assume that they're true right right you ask whether it's states of i lay should have six forty want to one thousand and one correct what i'm asking whether there's an additional requirement beyond that well we're not the extraditing court also have to find and i you were searching that they have to find that there was some evidence in the record there that supports the six forty one here well we not that the crime as stated wouldn't state a claim but there's actually some proof to support the charge there has to be some proof of course to support the charge or honor but one of the things that led here that's a different wrinkle i think and goes to probably causes the idea that this was done by a corrupt court and we were never allowed to pursue that in the court below we were able to show at least initially by a promise facia case that the lead supreme court judge was bribed was politically motivated the state department's cable said that we have to be careful because they're politically motivated and what i'm asking let's hold the charge of corruption aside just for a moment is it true and do you accept that it is the law that an offense is extradit if the acts charged are criminal by the laws of both countries if there is some evidentiary support for that yes and so but that's not what i said i was reading you something from the supreme court of the united states it's an old case but to my the best i can tell it remains good law it is true that an offense is extraditable a supreme court says only if the acts charged are criminal by the laws of both countries the focal point is the acts charge it doesn't say that you've got to put evidence in to support it it's enough that if you believe the allah god is in the charge it would state a crime under american law right but there's there's still does that right or do you have to do more there's a little more your honor and what's a little more and what's the source for the fact that there was more so so it's based on probable cause and the reason that we don't just let the executive arrest and send somebody and that the judiciary has to go over it and look through it is the same as probable cause for like a warrant or things like the probable cause in our system looks to the other side of the coin whether what they've charged states a crime and whether there's some evidence to support a crime in violation of the foreign sovereigns law that's not what i'm asking about i got you and it's ok i got it and all i would say here is and maybe there's not much of a dispute because the facts here i think are agreed on in that it was mr areas acting in his official capacity as minister of agriculture so i'm willing to assume that fact as true for purposes of this argument and then what does that mean for purposes of extradition and under duality that's he hasn't committed a crime under six forty one he never made a penny in this case and wouldn't have to make money out of it would he yes your honor i could commit a fraud in the united states i could see vocal salmon steer all the money to you simply because i like you and i would be as guilty as if i had taken the money and put it in my own pocket right so if if he arius was intentionally stealing for somebody else that's a different story but under the act of state doctrine and under the facts of this case that's not what's alleged your honor what's alleged is that he did a program pursuant to his official role as they are that they ever charge that he personally profited from the fraud no i thought the theory of the case was quite the contrary that he had these bodies in these friends in colombia who profited from his corruption no no there's no allegation that he knew those eleven families that that were able to subdivide their property in fact those eleven families testified that they did not know arius the whole theory of prosecution is that he benefited politically that these people might vote for him which if that's going to be a crime here in the united states let me put it just have a problem sharply as i can do i have to look at the colombian supreme court record one hundred fifty seven pages in their opinion and ask the question of whether the evidence was sufficient to sustain a conviction no you don't have to do that your honor you have to look at the evidence to see if that was a crime here in the united states honors we're aware of no case in the history of the republic when a federal appellate court has held that a treaty is not in force when the united states department of state says that it is the record and the law in this case leave no doubt that it should not be the first the united states department of state has repeatedly reaffirmed suppose that foreign government had formally terminated the treaty and we had not and we walk you walked in here with a declaration from was secretary of state and you said it's treaty still good as far as the state department is concerned notwithstanding the fact the foreign sovereign had done everything it had to do under the vienna convention assertion by the department of state under those circumstances your honor i think it would your hypothetical would turn on one point and that's whether or not the department of state itself recognized that it had received the term a nation under article twenty that you're saying v shape department recognizes and says is far as we're concerned we're still giving the treaty force in effect because we haven't given notice we haven't terminated and we're still extradited your honor we don't really care what they do the way that i would look at that situation is same v shipley a case from the old fifth circuit made clear that the deference a strong but it's not conclusive ok so it's not a question of saying this is a political question beyond the ken of a court i think if there is no treaty the fact that you say there is a treaty doesn't make it so and we would be obliged to examine that question wouldn't we at least in an extreme fact pattern your honor in an extreme fact pattern the principle that i would turn back to is the second circuit statement in franklin mint quirk that article three courts are bound to observe the line between interpret ing a treaty on one hand and veering into the lane of ratification is another way of saying we would give great great deference to the state department's view but it wouldn't be plenary and i think is that a fair statement that's a fair statement except perhaps when it comes to ratification due to the supreme court's decision in brayton eight hundred fifty three in that in that decision the court expressly held that whether or not a foreign government had initially ratified the treaty is in effect and not just a suitable political question that situation is a little bit different from the one that your honor hypothesizes here because i think in the situation your honor hypothesizes here there is a case to be made that the court could interpret the treaty terms itself and to make such a finding that that might that may be right but that would be different from saying what you said at the very start the first words out of your mouth in the very first sentence you authored was that it would be the first time in history for an appellate court to turn around and say we're not going to give force in effect to what the state department announced it would your i'm suggesting that may be descriptively accurate but that's different from saying the court would be beyond its power and indeed be on its obligation if there was nothing on the other side to support if there was an extreme hypothetical along the way lines that your honor posits that might be the case ok so let's accepting the proposition now that the court would be obliged to make that an hour since we know at least this much we know that there was a treaty we signed at the senate entered into it we know that it looked like the colombians did and then the colombian supreme court said the ratification process is no good because the wrong guy signed it and so as far as we're concerned there is no treaty that's in forcible at least as far as we're concerned and we will extradite nobody pursuant to the treaty i push back on that point your honor i had overstayed that i think so your honor me about turn to the colombian diplomatic note that's in the record at record entry fifty four one and as your honor quoted before the colombian government itself is recognizing both that the treaty is in force and additionally that this specific extradition request quote that this 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 one thousand seventy nine and that extradition would be granted on that basis the sovereign colombian government through this diplomatic note has expressly stated that the decision of its supreme court to which your honor refers the one nine hundred eighty six decision had effect only internally in colombia and a crucial point your honor that i what does that mean your honor i think sometimes the second circuit explain this well and in a case called  very insurance that ratification at times is colloquially used to mean some sort of internal governmental approval process but under international law article two of the vienna convention on the law treaties what ratification is is it is the extra no manifestation from one sovereign to another of consent to be back to the colombians do to ratify the treaty i'm sorry your honor what did the colombian government do to ratify this treaty as a matter of international law the colombian ratification of the treaty was when they exchanged the instruments of ratification in one thousand nine hundred two that was the manifestation to the united states of the colombian intent to be bound by the treaty they may have had it indeed they did have an internal approval process in colombia that was questioned and held to be invalid in then hundred eighty six decision but that's apart from the the fact of ratification under international law article twenty one of the treaty simply interpret it textually provides that the treaty comes into force when instruments of ratification are exchanged it's uncontested so far as i can tell in this case that instruments of ratification were exchanged in one thousand nine hundred two on this treaty therefore by the treaties own terms it came into effect on that date and as your honour's have mentioned before what significance if any are we to attach to the pronouncements by the colombian supreme court about this treaty your honor the significance that we should attach to that is what the colombian government tells us to attack iran which is that they are all it's in it's of internal nature in the way that i look at that yields zero your honor the way we're going to afford no significance to the fact that the colombian supreme court has said as far as work and there is no treaty it is unenforceable the wrong guy signed it it was never ratified it's as if it never happened your honor i think it is a correct statement that you should not afford significance to that and let me explain the significance in this case no your honor because the colombian government is explaining its own law to the united states that i've read that let's say that there are other extreme hypothetical let's say that there really wasn't a treaty but the colombian government in one thousand eight to the executive branch for whatever reason decided to submit instruments of ratification there had been no process internally and nothing but the executive branch says well we're just going to do this anyway but we have to defer to that to the state department your honor would likely conclude that there is no treaty in that instance because of our but what if but what if you are standing here time in the state department to conclude there is a treaty that would be contrary to article forty six of the vienna convention in the law of treaties which says that a state may inject a violation of its own internal law to withdraw consent from the treaty if that violation would have been manifest to any party state actor contracting in that situation i would posit that your honour's hypothetical would be a situation where that could have been a manifest error here it's far afield from that because once the instruments of ratification were exchanged my understanding is the treaty was employed at that point it was used it was in full force domestically in colombia as well as on the international level for four years and then the colombian supreme court decision came in one nine hundred eighty six now it's extremely significant to me at least that anybody extradited pursuant to the treated during that four years before was held to be unconstitutional your honor my understanding there are cases that are rules of specialty claims coming up there were nine years no extradition and the treaty even after it came into effect nobody was extradited for the first nine years your honor my or is it just a matter of nobody just shoots it no your honor the i would point to documentary thirty seven one which is a declaration from the assistant legal adviser at the department of state where he and i mean he fled to colombia because colombia when extradite him this was in two thousand and two and colombia refused our request he went back to ecuador when family got him back he killed two da agents with found they got him back in the court there has a colombia treaty it was a no then i've got another problem lynsey to a low says this everybody agrees if he was extradited under the treaty he would have standing in a private right to enforce the rule of specialty but we went and said why he's not extradited pursuant to the treaty is because the fact is and i quote the treaty was not in effect at the time the defendant was extradited in one thousand nine hundred eighty the law ratifying the tree had been struck down so before i get to everything else you've been arguing i want to know how right around these two cases what i agree that  yes and i agree with that and they say no he's not because it's not just because we say he was extradited person that in turn a lot of case goes further they say he was not extradited under the treaty because  not in effect the fact is it was not in effect and and the law ratifying it has been struck bam so it's beyond i didn't i was they had looks like a holding to me so i will  the not a holding the the holding in the case your honor is that mr valencia trujillo was not extradited pursuant to the treaty colombia fulfills its treaty obligation to the united states by employee and it was not extradite to the treaty because it was not in effect it was not in the man struck down it was not in domestic procedural effect in colombia and actually the case one of the cases upon which valencia trujillo realized the gallo case makes pretty clear in its quote upon which for once he doesn't i think the thrust of the question is whether or not the holding necessarily carries within it the legal conclusion that it wasn't in force in effect your honor i would say have reached the conclusion that they did without having grounded in the proposition that the criminal that the treaty wasn't in effect yes your honor they could have if mean how how could they have done that let me pose an example on the united states and that i think might clarify clarify this instance we receive extradition requests all the time and there are times that we receive an extradition request from a treaty partner that there is no question that the treaty is in full force in effect but in order to fulfill our treaty obligation to that partner we may employ other means to return the fugitive to our treaty partners such as immigration means if there's a removal order in effect we might employ the removal order to return the fugitive that's in a sense analogous to what colombia does in that instance when the united states returns that fugitive via immigration means the rule treaty the treaty could be in effect or it could not be in effect and that could be equally true and that is why i think your honor that that could be fairly characterized as dicta here and i think what the court was assuming for the purposes of my question that is holding victor how do i square at with the statement from the colombian government that the treaty of extradition which you submitted on their that the treaty of extradition between colombia and the united states continues currently in force well your honor i'm not looking to pick words here but the colombian government tells us today in this statement the treaty is currently in force and we have held assuming you were except that it was holding either in the one case the other or both that it was either a normal or it is not in effect your honor and i ignore that your honor that i mean our i mean do i have to go in bonk to address that i don't think so your honor because on one hand there is the argument that it's dicta on the other hand it is distinguishable for the reasons that i stated i think it also is saying that the treaty making the assumptions that we do not agree with i think it at most is saying that the treaty is not in force in a fact and in a fact as a matter of domestic colombian law and domestic law and international law are sometimes not the same thing and not equivalent and as the colombian government has made clear in its diplomatic note as the department of state has made clear as a matter of international force the  offered on behalf of the colombian government said nothing like that your honor it said in effect and i'll read it to you forget what in fact let's look at the words that they used based on the above this is coming from the colombian government it must be highlighted that the treaty of extradition between colombia and the united states continues quote currently in force comma in accordance with the into the national law comma and as provided by article twenty one subsection four of the same treaty and of article fifty four of the vienna convention as neither the republic of colombia know the united states have notified themselves their intention of terminating it a little different from the argument making your honor i'm not certain that i agree with that because on the pure a graph directly above i'm sorry if it is the graphs above they make clear that the actions that happened in colombia in one nine hundred eighty six are of internal nature and have the consequence that the republic that in the republic of colombia the treaty cannot be applied but they do not affect the validity there rob i think i may have in artfully stated it your honor but i believe what i'm saying ok then help me understand how it is that the treaty cannot be applied because they failed in the ratification process and yet at the same time it's still currently in force it's currently in force your honor is a matter of international law by its own terms because the instruments of ratification were exchanged domestic so two things happen to happen for it not to currently be in force if i hear you right the first thing that has to happen is the colombian supreme court has to pronounce that the ratification process this was no good and the second thing that has to happen is the colombian government has to more formally send a notice of determination yes that's both things happen the treaties necessarily enforce that seems to be the cross the border you're saying i think that's correct your honor and i think it would be analogous on an ira and if the united states supreme court were to in essence strike down the implementing legislation of a non self executing treaty it would not mean that the united states does not have that treaty obligation if the united states were unable to fulfill its treaty obligation then it would withdraw from the trial let's suppose the supreme court of the united states  to conclude in the case that the treaty ratification process by the senate was defective because you didn't have two thirds vote you needed sixty seven senators to make it t and nevertheless they said it was ratified by fifty six senators and somebody challenged in the supreme court and supreme court said yeah that's right you need sixty seven while we don't look behind it very often plainly on its face it didn't meet the law the requirements the two thirds and yet the government continues to say and pronouncement as far as we're concerned it's still good law that treaty still in full force and effect notwithstanding the purse pronouncement by the court your honor i think that there is a good case that the treaty is in full force in effect under the vienna convention of the law of treaties and did not withstanding the fact that the supreme court had said the treaty process was no good because you didn't have the requisite number of senators to ratify it i believe that that would create an obligation potentially to terminate the treaty according to its terms you chose not to they were powerful foreign policy reasons why you wanted to accord the treaty effect for reasons that when far beyond the ratification process i treaty partner in that instance your honor would have a very good case under international law that the treaty remained in force which is separate and apart from a domestic obligation in the united w is not where they have a pretty good argument your view is it is in force i mean i feel and unless it had been formally terminated by notice that's correct notwithstanding the defect that went to  well the ratification is the international act it's not the domestic approval act if the domestic approval is flawed than that may create a domestic obligation to terminate the treaty but it does not independently terminate the treaty on the international plane because this court in that situation denied domestic effect to the treaty let's say it let's say that this exact treaty only got fifty six senators but for whatever reason the united states still wanted to say that it was in force and that and that instance does this court with have authority to say there's no treaty and you can't extradite this person your honour's would be interpreted in domestic us constitutional law at that moment as an article three court yes i think you could and what if the facts were different in this case and there had been no formal no formal terminations by columbia but the common government actually said in their affidavit now we don't think this treaty is in effect we haven't submitted the formal documents but know we have not tended to practice internally and we don't actually think it and in fact except because we haven't terminated it you still have to send this person to us what's their sponsor then you're under the case law is very clear that different to still according to the state department's view but as the court has made clear previously in some cases that deference is not conclusive and i think the situation that your honor posits there could easily be a situation where that would require close examination but i talk about the supreme court's case in charlton v kelly for example which makes clear that if one party is violating or potentially violating a treaty obligation the solution is political between the branches it may make the treaty avoidable but it doesn't necessarily make the treaty void here i think the difference is appropriate to the state department because that's that's not what happened here what's happened here is colombia is the united states is best extradition partner in the world its sins more fugitives to the united states than any other country how do they do it they do it by employing their domestic law what does that mean translate that into english for me that the treaty your honor creates an obligation to extradite it's article one of the treaty the obligation to extradite is fulfilled in colombia by using their domestic procedures we send them extradition requests that fulfill the terms of the treaty they act on those extradition request under their domestic law and they send more fugitives to us annually than any other the treaty is an old or at least it's not ratified and a colombian law but we're going to use it to employ our obligations on the local law or i'm sorry or i i guess i don't understand if the treaties gone with the wind in colombia what the source of the extradition is in their local law it's their domestic local extradition law many countries even when there is no question about the treaties validity many countries treaties are not self executing so they have their own extradition act in countries that they employ those procedures which are much more detailed than thirty one eighty four that we have here to bring into effect their obligation me ask were another question the judge hall had asked your colleague what's the status of the sorrow and your honor the government cannot comment on the status of asylum proceedings i have no reason to dispute the facts that mr  said at the structure the one note that i would add to this court is that asylum and extradition are two separate processes i'd appoint promise you we understand that but don't tell me the case number and i'll go try to look up the status of do you have a case number on or i don't i don't you have absolutely no knowledge of it and you are you have knowledge of it but don't want to say i don't have knowledge of it you don't have knowledge i know what mr marcus has said me understand what you have to show one to criminality as you see it your honor i believe your honor was quoting from collinsville laws and deed on that case and that paragraph your honor was quoting makes clear our domestic legal standard which is that you have to show that the act itself would be criminal under u s law act as charged be charged conduct right you don't look behind it to see whether there's actually sufficient evidence to prove the conduct our position your honor is you look behind it in the probable cause framework but then you're only looking at it to see whether it violates foreign whether that's christ foreign law i mean the sort of an asymmetry between your you look at it for probable cause purposes and  criminality there there may be a bit of a symmetry there your honor the case law or case law i think pretty clearly establishes that you look at the conduct that's been charged as alleged and then you look at probable cause to see if the foreign offense has been committed and that goes turned in the report and recommendation that was adopted by judge king stated she cited almost a dozen cases where courts have uniformly held that the judgment of conviction is precludes is why i asked the question help me with it under dual criminality suppose i were to look at the supreme court opinion colombian supreme court and match it up against the requirements of six forty one and come away with the conclusion that there wasn't a shard of evidence to establish the element of criminal  the other elements but not intent is that something court can do or that go beyond what we are required to do i'm not saying that's the case i'm simply asking the question it go in the case of a conviction that goes beyond your honor the colombian supreme so we have to accept the conviction as the final statement about whether the evidence otherwise is sufficient on intent as a matter of comedy and under the treaty yes you have three of the lawyers with you could you come for if a about it can tell us all we hear a bottle about whether the solemn is still pending not pending i'm not down i missed marcos but you may have some i just want to see if you all can agree rather than saying we don't have any reason yes i'm happy to try to speed it we've got three of them or us and maybe somebody knows something cute around or thank you very much that's for the court to affirm thank you maybe nobody there knows your honor the best information that i that i can give you is that eight c f r twenty eight zero point six prevents the government from commenting on asylum applications generally as a practice all immigration proceedings are stayed during the pendency of an extradition they give precedence the ex writes what you can tell us consistent with that though is that it was filed and that it is pending and it hasn't been resolved it's been stated that much you can say yes your honor and i believe that's correct thank you very much do you have a case number florida maybe mr marcus can give us where it's pending and is there a formal order stay our nose is just a matter of practice and it's a matter of practice there may very well be a formal thank you may i please the court judge all will file right after this hearing the case number i apologize that i don't have it with me but i am just curious about yes your honor so i'd like to start with the hypothetical that both judge marcus and judge grant gave about if the u s supreme court had found the treaty unconstitutional what would that mean that would mean the treaties not in force and so we cannot have a one sided treaty you did not hear from the government that and we challenge them to say so that one extradition in the past thirty years from colombia was done pursuant to the treaty and that's because it has never been done conduct controls in this case and i want to make that very clear the cases both from this court and the united states supreme court say that conduct is the controlling factor they want to talk about notice international law this is  cases then a different context say the dissolution of the pression empire to see if a treaty remains in effect i don't think you've got a case that says that the conduct of one country that has remained one country under the same government has its conduct right so so i think that cuts in our favor your honor because even when both sides say the treaties in effect in those cases those cases say what you still have to look at conduct in this case we have columbia saying we don't that the treaty is not in effect we never properly ratified it and so our case is much stronger than that because we have one party saying we don't extradite pursuant to the treaty and all the conduct for the past thirty years shows it you know the government lawyer said it's our best extradition partner except when it doesn't want to be except when it doesn't want to be so we've catalogued all of of all of the people that colombia doesn't extradite when it chooses not to and it could not do that if there was an extradition treaty in force it couldn't say we're just not we're going to give a pass to all the fark members it could not do that it would have to because a treaty is reciprocal under article one of the treaty the government keeps saying that only internally in colombia is this not a treaty that makes no sense a treaty has to be in force internally in both countries for there to be a two sided treaty what the state department is asking the court to do is say half a treaty is better than no treaty and that can't be the case a treaty has to be in force has to be followed conduct controls by both sides and just as a side note of course judge marcus the vienna convention which you discussed with the government lawyer is we are not a party to the vienna convention our own cases show that conduct is what's important finally what the government said a number of times in its argument is that we shouldn't veer into the question we are not asking this court to veer into the ratification question everyone agrees the united states agrees this court agrees columbia agrees that the treaty was not ratified in colombia article twenty one one of the treaty requires ratification for it to go in force it was not ratified there's no dispute on that we're not asking the court to decide that question because everyone agrees that it was not ratified the legal question for this court is if a treaty is not ratified what's the legal consequence of that what's the legal consequence of a one sided treaty the legal consequences there is no treaty that is the point here i listened with interest as the government lawyer tried to work around this court's holdings this court statements about the treaty being an old the holding in valencia trujillo i couldn't follow the legal gymnastics all that i know is that this court has said it both sides agree to it and what that means is how does this court decide the same way judge grant as if the u s supreme court said not enough senators ratified it this court could say well then we're not extraditing pursuant to the treaty this is the mirror image of that columbia the columbia supreme court has the clarity the ratification unconstitutional did not happen the contract the treaty is void i've used a lot of time this morning i know we've gone on for a while i asked this court to find what everyone