1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0144p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A VELINO C RUZ M ARTINEZ , Petitioner-Appellant ,

v

.

U

NITED S TATES OF A MERICA , Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 14-5860

Appeal from the United St ates District Court for the Middle District of Tennessee at Nashville. No. 3:14-cv-00174—Aleta Arthur Trauger, District Judge. Argued: March 3, 2015 Decided and Filed: July 10, 2015 Before: CLAY, GILMAN, and SUTTON, Circuit Judges.

_________________ COUNSEL

ARGUED: Michael C. Holley, FEDERAL PUBL IC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Lynne T. Ingr am, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Lynne T. Ingram, UNITED STATES ATTORNEY’S OFFICE, Nas hville, Tennessee, for Appellee.
CLAY, J., delivered the opinion of the court in which GILMAN, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 28–46), delivered a separate opinion concurring in part and dissenting in part. 

### >No. 14-5860 Cruz Martinez v. United States Page 2

_________________ OPINION

_________________ CLAY, Circuit Judge. Petitioner Avelino Cr uz Martinez (“Petitioner”) appeals from the order of the district court deny ing his petition for a writ of ha beas corpus filed under 28 U.S.C. § 2241. Petitioner is opposing extradition pro ceedings initiated in June 2013 by the United
States on behalf of Mexico based on murder ch arges arising from a double homicide in a small Oaxacan community that took place on December 31, 2005. For the reasons that follow, we REVERSE the judgment of the district court an d REMAND for further proceedings consistent with this opinion.

BACKGROUND

On December 31, 2005, two men were shot in the small community of Santa María Natividad, Ixpantepec Nieves, Silacayoapan in Oaxaca, Mexico. Santa María Natividad has
been described in this case as “a very small village where basica lly everyone knows each other.” (R. 2-17, Flores Alvaro Declaration, PageID 327.) The town has only about two hundred inhabitants. One of the shooting victims, Samu el Francisco Solano Cruz, died as he was being transported to another community for medical treatment. The othe r victim, Antolín Cruz Reyes, died later in the city of Oa xaca. Two witnesses identified Petitioner as the shooter.
At the time of the shooting, Petitioner was a legal permanent resident of the United States, and had been continuously living and worki ng in this country, with that status, for more than fifteen years. Despite his residence in th e United States, Petitioner frequently traveled back to Santa María Natividad, where his family, including his wife and children, lived.
The shooting was followed by two very differe nt legal proceedings, one of them leading to the case before us today. First, on January 12, 2006, the town clerk of Santa María Natividad presided over a meeting between Petitioner’s wi fe and brother, on the one side, and the widow and parents of one of the shooting victims, So lano Cruz, on the other. At the meeting, both families signed an agreement that had been drafted by the “District Court for San Pedro Silacayoapan, Oaxaca.” (R. 2-17, Silacayoapan Agreement, PageID 335.) The agreementNo. 14-5860 Cruz Martinez v. United States Page 3

identified Petitioner as the pe rson “who committed the homicide” and provided that his family would pay 50,000 pesos to the family of Solano Cruz. The agreement concluded with the following language:
The Town Clerk, for his part, as an authority of the community, asks that both parties respect these agreements, which were issued in the district to which we belong. He also asks that none of the part ies in this matter holds a grudge, as we maintain respect towards one another in our community, especially because this unfortunate act took place between families. He asks that once the parties accept this agreement and commit to enact its terms, that the matter shall be closed.
( Id. at 334-35.) Petitioner’s wife understood “that the agreement resolved the case and that Avelino would not be charged with any crime.” (R. 2-17, Flores Alvaro Declaration at 328.) She explained that the family of the other victim, Antolín Cruz Reyes, “has never claimed that Avelino committed any crime against Cruz Reyes.” ( Id. at 327.)
In an entirely separate series of events , and unbeknownst to Petit ioner and his family, a cousin of Solano Cruz who was not a party to the agreement reported the homicide to the attorney general for the State of Oaxaca on Ja nuary 16, 2006. The cousin, a witness to the shooting, gave the state authorities a first-hand account of what happened. He described how he
and Solano Cruz drove to the town center to inv ite the municipal authorities to a goat roast the following day. The two men found the officials they sought watching a music performance from a grandstand. Shortly after th ey took their seats, the pair was approach ed by Petitioner. According to the cousin’s statement, Petitioner shook hands with Solano Cruz, then, while still grasping his hand, drew out a gun, ye lled “son of a bitch,” and shot Solano Cruz at close range. Cruz Reyes, who was next to So lano Cruz and tried to assist him by putting his arms around him, was also hit. A deputy municipa l official who was also present at the scene gave a corroborating statement, and added that Petitioner fled the s cene in his truck, which had Texas plates. Based on these statements and the investigation that followed, on Februa ry 23, 2006, the Oaxacan
authorities issued a warrant for Petitioner’s arrest on charges of homicide with “unfair advantage” resulting from his use of a firearm.

Meanwhile, Petitioner returned to the Unite d States, where he continued to live openly
under his own name. His landlord verified in a letter submitted to the district court that Petitioner had lived in the same apartmen t in Lebanon, Tennessee since April 2006. TheNo. 14-5860 Cruz Martinez v. United States Page 4

uncontested evidence below established that Petitioner’s family in Santa María Natividad was
never informed of the warrant for his arrest. Petitioner’s wife and children continued to live in Santa María Natividad until 2007, when they left to join Petitioner in the United States, in part because of harassment from the family of Sola no Cruz. Even after 2007, Petitioner’s brother and father continued to live in the community and re mained there as of the commencement of the extradition proceedings in 2013. Yet in all this time, Petitioner’s family was never informed of a warrant or of any pending case against Petitioner.

There is no indication in th e record of when the Mexicangovernment first learned of
Petitioner’s whereabouts in the United States. No obstacle to discovering his location has been identified, and it was common know ledge in the tight- knit community of Santa María Natividad
that Petitioner lived and worked in the United States . It is more accurate to say that despite the existence of a variety of avenues for le arning of Petitioner’s location—whether by communication with his family or acquaintances in Santa María Natividad, or by simple inquiry or background check within the United States—t he Mexican government made no effort that is
reflected in the record of these proceedings to search for him or to obtain his extradition for more than six years.
In an unexplained turn of events, it was the United States government that next followed up on the Mexican arrest warrant. On September 11, 2009, more than three and a half years after the shooting, a U.S. Consular Official contac ted the Silacayoapan cour t to inquire about the status of the warrant. The court responded that the warrant was still “pending and executable.” (R. 2-13 Silacayoapan Court Document, PageID 250- 51.) The record does not reflect that any further action was taken. The U.S. government ha s refused to disclose any records related to the 2009 inquiry.
On May 21, 2012, Mexico submitted a diplomatic note invoking the “urgency” clause of the U.S.-Mexico extradition treaty (“1978 Treaty” ) to request Petitioner’s provisional arrest. See Extradition Treaty, U.S.-Mex., art. 11, May 4, 19 78, 31 U.S.T. 5059. The not e explained that the “[t]he URGENCY to present the request . . . is justified by the fact that AVELINO CRUZ
MARTINEZ has been located” at a given address in Lebanon, Tenne ssee and that “[i]t is feared that he may move elsewhere and his whereab outs will become unknown.” (R. 2-6, InitialNo. 14-5860 Cruz Martinez v. United States Page 5

Extradition Request, PageID 80.) In October 2012, months afte r Mexico submitted its request for Petitioner’s provisional arrest, both the United States and Mexico issued posters identifying
Petitioner as wanted on murder ch arges in Mexico. No attempt was made to arrest Petitioner in
2012.
During this period, Petitioner, who had obtai ned U.S. citizenship in October 2010, was working to obtain lawful permanent resident stat us for his wife and children. In late 2012 or early 2013, Petitioner made a number of short trip s to Mexico to meet with U.S. consular officials there to obtain the necessary immigration waivers for his family. During these multiple trips, neither Mexican nor U.S. authorities took any steps to detain him or to inform him of the pending warrant and extradition request; nor was he prevented from returning to the United
States.
On June 11, 2013, acting on behalf of the Mexican government, the U.S. government filed a complaint in the Middle District of Tennessee seeking Petitioner’s provisional arrest for the purposes of extradition. Petitioner wa s finally arrested on June 21, 2013, and Mexico
delivered its formal extraditi on request on August 20, 2013, more than seven and a half years after the shooting was reported to the Mexican authorities.

Petitioner was certified as extraditable under the terms of the 1978 Treaty by the magistrate judge on January 17, 2014. He thereafter filed a petition for a writ of habeas corpus in the district court challenging th e certification of extraditability. The district court denied his petition on July 10, 2014. This timely appeal followed.
Petitioner challenges the denial of his habeas petition on four gr ounds. First, invoking Article 7 of the 1978 Treaty, which prohibits extradition where prosecution for the crimes charged would be barred due to the “lapse of ti me” according to the laws of either country, he argues that he is not subj ect to extradition because the U.S. st atute of limitations has expired as to the homicides he is charged with. Second, he argues that the same lapse-of-time provision incorporates the Speedy Trial Clau se of the Sixth Amendment and that his extradition should be barred on that basis as well. Third, he argues th at the U.S. government violated its obligations
under Brady v. Maryland , 373 U.S. 83 (1963), as applied to extradition proceedings by this Court
in Demjanjuk v. Petrovsky , 10 F.3d 338, 353 (6th Cir. 1993), whenit declined to disclose theNo. 14-5860 Cruz Martinez v. United States Page 6

2009 consular communications regarding the Mexican warrant for Petitioner’s arrest. Fourth and finally, he argues that his procedur al due process rights were viol ated when he was not granted a prompt hearing and judicial revi ew of the purported “urgency” a sserted to allow his provisional arrest under Article 11 of the 1978 Treaty. We cons ider each of these arguments in turn.

DISCUSSION
Scope and Standard of Review
Because an order certifying extraditability under 18 U.S.C. § 3184 is not a final order capable of appellate review, judicial review of extradition proceedings may be sought only by petition for a writ of habeas corpus. Collins v. Miller , 252 U.S. 364, 369 (1920); see also In re Extradition of Howard , 996 F.2d 1320, 1325 (1st Cir. 1993) (dis cussing this framework in some depth). As this Court has previously expl ained, 28 U.S.C. § 2241 provi des “the appropriate habeas remedy” in such cases. In re Extradition of Drayer , 190 F.3d 410, 412 n.2 (6th Cir. 1999) (“ Drayer ”). Under § 2241(c)(3), the provision fr equently cited as governing habeas review in extradition cases, federal courts are authorized to grant habeas to prisoners “in custody
in violation of the Constitution or laws or treaties of the United States.” See, e.g. , Skaftouros v.
United States , 667 F.3d 144, 158 (2d Cir. 2011) (relying on§ 2241(c)(3) in habeas review of extradition proceedings); Plaster v. United States , 720 F.2d 340, 349 (4th Cir. 1983) (identifying § 2241(c)(3) as “the appropriate device” for judici al review of a constitutional challenge to a certification of extraditability under § 3184). Accordingly, in habeas review of extradition proceedings, courts consider defenses to extr adition arising from the applicable treaty, see, e.g. , Murphy v. United States , 199 F.3d 599, 602-03 (2d Cir. 1999); Quinn v. Robinson , 783 F.2d 776, 787-90, 811-14 (9th Cir. 1986); Kamrin v. United States , 725 F.2d 1225, 1227 (9th Cir. 1984), as well as constitutional claims against the U.S. government related to it s conduct of extradition proceedings, Valentine v. United States ex rel. Neidecker , 299 U.S. 5 (1936); Drayer , 190 F.3d at 415; Valenzuela v. United States , 286 F.3d 1223, 1229-30 (11th Cir. 2002); Matter of Burt , 737 F.2d 1477, 1483-84 (7th Cir. 1 984). Petitioner’s claims, in cluding the two defenses to extradition derived from the 1978 Treaty and th e two constitutional claims against the U.S. government, therefore fall within the scope of habeas review of the extradition proceedings.No. 14-5860 Cruz Martinez v. United States Page 7

In reviewing the district court’s ruli ng on the habeas petition below, we apply de novo review to questions of law and mixed questions of law and f act, and we review factual findings
for clear error. Quinn , 783 F.2d at 792; see also Hilton v. Kerry , 754 F.3d 79, 86 (1st Cir. 2014) (explaining that questions of law are reviewed de novo and factual findings are reviewed for clear error).

I. Article 7: Statute of Limitations
The first claim raised by Petitioner is that his extradition is precluded under Article 7 of the 1978 Treaty based on the expiration of the fi ve-year statute of limitations for second-degree
murder under U.S. federal law. In Article 7, the United States and Mexico agreed:
Extradition shall not be gr anted when the prosecution or the enforcement of the penalty for the offense for which extrad ition has been sought has become barred by lapse of time according to the laws of the requesting or requested Party.
1978 Treaty, art. 7, 31 U.S.T. 5059.
When interpreting a treaty, courts “first look to its terms to determine its meaning.” United States v. Alvarez-Machain , 504 U.S. 655, 663 (1992); AirFrance v. Saks , 470 U.S. 392, 396-97 (1985) (“The analysis must begin . . . with the text of th e treaty and the context in which the written words are used.”); see also Restatement (Third) of Fore ign Relations Law of the
United States (“ Restatement ”) § 325(1) (1986) (“An internationa l agreement is to be interpreted in good faith in accordance with th e ordinary meaning to be given to its terms in their context and in light of its object and purpose.”). “[T] he obligations of treaties should be liberally construed so as to give effect to th e apparent intention of the parties.” Valentine , 299 U.S. at 10.
There is no dispute that Article 7 incorporates the relevant statute of limitations in each country. Petitioner concedes that the Mexican st atute of limitations has not yet run. If, however, his prosecution for the charged mu rders would be barred in the United States by the statute of limitations, then his extradition must be denied. See 1978 Treaty, art. 7.

In the international extradition context, Am erican courts look to the federal statute of limitations as the pertinent source of law in the United States. Theron v. United States , 832 F.2d 492, 498-99 (9th Cir. 1987) (colle cting cases). The government argues thatPetitioner’s crimeNo. 14-5860 Cruz Martinez v. United States Page 8

should be analogized to first-degr ee murder, which is not subject to any limitations period under federal law. 18 U.S.C. §§ 1111(a), 3281. Petitione r argues that because he was not charged with premeditated murder, the more ap propriate analogue is second-de gree murder, which carries a five-year limitations period. §§ 1111(a), 3282. We assume arguendo that § 3282 applies, but
hold that Petitioner is not entitled to relief because the Mexican arrest warrant issued on February 24, 2006 tolled the statute of limitations. See Sainez v. Venables , 588 F.3d 713, 715-17 (9th Cir. 2009).
Petitioner argues that the limitations period should be tolled only if Mexico has taken steps that would result in tolling under applicable Mexican law. His argument cannot be squared with the language of the 1978 Tr eaty. Article 7 offers a defense against extradition if prosecution would be “barred by lapse of time according to the laws of the requesting or requested Party.” 1978 Treaty, art. 7 (emphasis a dded). This language incorporates the body of relevant law in each country. Thus, where a pers on facing extradition invokes the U.S. statute of limitations, U.S. law governs. Under § 3282(a), the limitations period is tolled if “the indictment
is found or the information is instituted within five years” after the co mmission of the offense.

Mexico, of course, did not i ssue an “indictment” or instit ute an “information” charging Petitioner with the crime. Applying the rubric of U.S. law to the actions of a foreign government, by necessity, relies on a more functional analysis. The Ninth Circuit, faced with the same question, held that “for th e purpose of a civil proceeding suchas an extradition, a Mexican arrest warrant is the equivalent of a United States indictment and may toll the United States
statute of limitations.” Sainez , 588 F.3d at 717. We agree. The Me xican arrest warrant issued in this case is a charging document: it identifies the offense in the Oaxacan criminal code, sets out the essential facts of the alleged crime, and details the evidentiary basis for the charge. Cf

. Hamling v. United States , 418 U.S. 87, 117 (1974) (“[A]n indictme nt is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.”).
The Oaxacan judge issued the warrant for Petitioner’s arrest on February 24, 2006, less than two months after the shootings. Becau se the Mexican government initiated criminalNo. 14-5860 Cruz Martinez v. United States Page 9

proceedings well within the five year period sp ecified in § 3282, Petitioner’s extradition is not barred by the statute of limitations.
II. Article 7: Speedy Trial Clause
Petitioner also raises the alternative argument that if his extraditi on is not barred by the statute of limitations under Article 7, then it is barred by the Speedy Trial Clause of the Sixth Amendment, which also protects against untimely prosecution. Whether Article 7 incorporates the Speedy Trial Clause is a question of tr eaty interpretation that this Court reviews de novo

. Quinn , 783 F.2d at 792.
A. Treaty Interpretation
We begin with “the text of the treaty and the context in which the written words are
used.” Air France , 470 U.S. at 396-97. The Supreme Court has analogized to contract law and statutory interpretation in articulating methods of treaty interp retation; in both cases, the ordinary meaning of the text and the apparent intent of the provision are the touc hstones of interpretive analysis. See Medellín v. Texas , 552 U.S. 491, 506 (2008) (“The inte rpretation of a treaty, like the interpretation of a statute, begins with its text.”); Air France , 470 U.S. at 399 (holding that courts must “give the specific words of the tr eaty a meaning consistent with the shared expectations of the contracting pa rties”). A classic formulation of the principles governing treaty interpretation, accepted both in international law and in American courts , directs that “[a]n international agreement is to be interprete d in good faith in accordance with the ordinary meaning to be given to its terms in their cont ext and in the light of its object and purpose.”
Restatement § 325(1) (quoted in Sanchez-Llamas v. Oregon , 548 U.S. 331, 346 (2006)); see also Vienna Convention on the Law of Treaties, Ma y 23, 1969, art. 31(1), 1155 U.N.T.S. 331 (same). Applying these principles to the 1978 Treaty, we ag ree with Petitioner that the rights guaranteed by Article 7 to those facing extradition include the protection against unduly prejudicial postaccusation delay in criminal prosecutions embodied in the Speedy Trial Clause.
Again, Article 7 of the 1978 Tr eaty provides that “[e]xtraditi on shall not be granted when the prosecution or the enforcement of the penalty for the offense for which extradition has been sought has become barred by lapse of time accordi ng to the laws of the requesting or requestedNo. 14-5860 Cruz Martinez v. United States Page 10

Party.” 1978 Treaty, art. 7. Read for its ordi nary meaning, this language incorporates those bodies of law in either country that protect against untimely cr iminal prosecution. The Speedy
Trial Clause of the Sixth Amendment falls cleanl y within this scope. In accordance with that fundamental constitutional guarantee, a criminal prosecution “become[s] barred by lapse of time according to the laws” of the United States—to borrow the language of Article 7—when unjustified post-accusation delay re sults in prejudice to the defenda nt, or when it extends over so significant a period that pr ejudice will be presumed. 1 Doggett v. United States , 505 U.S. 647, 651, 657-58 (1992); Klopfer v. North Carolina , 386 U.S. 213, 226 (1967) ( holding that the right to a speedy trial “is one of the most basic rights pr eserved by our Constitution”). Although the passage or lapse of time alone is not dispositive of the merits of a speedy trial challenge, the same may be said of statutes of limitation. Bo th bodies of law take into account the timely or untimely action of the government, as illustrate d by our earlier discussion of tolling. Similarly, defendants may be precluded from relying on either defense if the delay results from their
intentional evasion of law enforcement. See 18 U.S.C. § 3290; Doggett , 505 U.S. at 652-54 (analyzing whether the defendant was aware of the charges against him during the eight years that elapsed before his discovery and arrest). Although these caveats intr oduce additional factors into the analysis, the e ssential force and fundamental basis of both the Speedy Trial Clause and
statutes of limitation is the same: the passage or “lapse” of time.
Indeed, under our legal system, protection against untimely prosecution is incomplete without the Speedy Trial Clause, which operates in concert with statutes of limitation and the Due Process Clause to protect agains t oppressive prosecutorial delay. See United States v.
Marion , 404 U.S. 307, 320-25 (1971) (d iscussing the interlocking pr otection provided by statutes of limitation, the Speedy Trial Clause, and the Due Process Clause); see also United States v.
Lovasco , 431 U.S. 783, 788-89 (1977) (same); Klopfer , 386 U.S. at 226 (noting that each of the

1 Contrary to the dissent’s inexplicable interpretation, no word or turn of phrase in Article 7 suggests that its application is restricted to the commencement of criminal proceedings—indeed, the express inclusion of lapse-oftime protection against the “enforcement of the penalty” for an offense settles any doubt that the scope of the article extends beyond the initiation of prosecution. 1978 Treaty, art. 7; cf. Dissent at 30, 39. The dissent mischaracterizes the Oaxacan statute of limitations as supporting its interpretation, glossing over the statutory language that specifically protects against undue delay dur ing criminal proceedings. Rather th an dropping out of the picture at the commencement of the prosec ution, the Oaxacan statute of li mitations “reset[s] and begin[s] anew[] at the time of the reading of the charges at arraignment.” (R. 2-19 at 378.) This effectively s ecures to criminal defendants protection comparable to the Speedy Trial Clause under U.S. law. Article 10(2), also cited by the dissent, offers no guidance because it does not even mention the phrase “lapse of time,” mu ch less purport to define or limit it. 1978 Treaty, art. 10(2).No. 14-5860 Cruz Martinez v. United States Page 11

fifty states guarantees the right to a speedy trial). The Eleventh Circuit explained the complementary roles played by statutes of limitation and the Speedy Trial Clause in protecting against prejudice arising from the “lapse of time” in Stoner v. Graddick , 751 F.2d 1535 (11th Cir. 1985):
The statute of limitations is the principal device, created by the people of a state through their legislature, to protect agains t prejudice arising from a lapse of time between the commission of a crime and an indictment or ar rest. Statutes of limitation represent legislative assessments of relative interest of the state and the defendant in administering and receiving justice. Limitations statutes, however, are not the only available protection agai nst prejudice. The particular provisions of the Speedy Trial Clause of the Sixth Amendment are available with respect to prejudicial delay after fo rmal indictment or information, or actual arrest.
751 F.2d at 1540-41 (citations and quotation marks omitted). Where the text of Article 7 does not distinguish among lapse of time defenses , we give the provision full effect only by construing it to incorporate thes e complementary protections.
Not only is the Speedy Trial Clause a central component of American legal protections against untimely prosecution, it is well established that criminal defendants may raise a speedy trial defense when the U.S. government ha s failed to timely pursue their extradition. Doggett , 505 U.S. at 651-58 (finding speedy trial violati on where U.S. government did not request the
defendant’s extradition from Panama and did not seek to confirm his location during the following eight years); United States v. Heshelman , 521 F. App’x 501, 505-510 (6th Cir. 2013) (holding that the U.S. government’s failure over more than three years to pursue extradition of suspect living in Switzerland, where the suspect wa s not informed of the charges against him, constituted a speedy trial violation); United States v. Mendoza , 530 F.3d 758, 763 (9th Cir. 2008) (“[T]he government was required to make some e ffort to notify Mendoza of the indictment, or otherwise continue to actively attempt to bring him to trial, or else risk that Mendoza would remain abroad while the constitutional speedy-tr ial clock ticked. However, the government made no serious effort to do so.”). If the roles of the two countries here were reversed, there is no question that Petitioner would be able to invoke his constitutiona l speedy trial right in a U.S. prosecution based on the government’s failure to timely seek his extradition from Mexico, and indeed he would stand a good chance of succeedi ng in his challenge and thereby barring his prosecution. See Doggett , 505 U.S. at 651-58 (finding a speedy trial violation in comparableNo. 14-5860 Cruz Martinez v. United States Page 12

circumstances). Article 7 incorpor ates precisely that result: if Petitioner’s criminal prosecution would be barred due to the lapse of time in the United States, his extradition must be refused.
See 1978 Treaty, art. 7 (forbidding extradition where criminal prosecution “has become barred by lapse of time according to the laws of the requesting or requested party ” (emphasis added)).
Interpreting Article 7 to incorporate cons titutional limits on oppressive prosecutorial delay is consistent with the protective purpose of the provision and its context within the 1978 Treaty. We cannot agree with the government th at the sole relevant purpose here is the reciprocal surrender of suspected cr iminals. Article 7, after all, is plainly designed to serve other ends, as it limits extradition rather than enablin g it. The apparent “object and purpose” of the provision is to provide persons facing extradition the same degr ee of protection against stale prosecution that the laws of the United States or of Mexico w ould grant in a domestic criminal prosecution. See Restatement , § 325(1). The two countries may also quite reasonably have sought to incentivize the timely extradi tion and prosecution of criminals. See Barker v. Wingo , 407 U.S. 514, 520 (1972) (identifying “a societal in terest in providing a sp eedy trial which exists separate from, and at times in opposition to, the interests of the accused”). Construing Article 7 to incorporate Sixth Amendment protection agains t post-accusation prosecutorial delay furthers these purposes.
The context offered by the remainder of the 1978 Treaty confirms th e nature of the two countries’ endeavor. The treaty contains numer ous exceptions and limitations protective of the rights of those facing extradition. 2 Given these many exceptions, the treaty’s purpose is best
understood as an effort to establ ish a practice of equitable, recipr ocal extradition consistent with the laws of the two nations involved. Our interpre tation of Article 7 is inaccordance with this

purpose.
For all these reasons, one could make an ar gument that the “lapse of time” language in Article 7 unambiguously incorporates the Sixth Amendment’s Speedy Trial Clause. But given

2 See 1978 Treaty, art. 1 (incorporating the principle of dual criminality); art. 3 (requiring evidence that is sufficient “according to the laws of the requested Party” to justif y commitment of the person sought for trial on the charge); art. 5 (stating an exception for political and milita ry offenses); art. 6 (incorporating a double jeopardy principle); art. 7 (incorporating defenses against untimely prosecution); art. 8 (allowing the parties to refuse extradition based on the possible application of the death penalty in certain circumstances); art. 9 (permitting the parties to decline to surrender their own nationals); art. 17 (incorporating the rule of specialty to confine the subsequent prosecution to the charges underlying the extradition).No. 14-5860 Cruz Martinez v. United States Page 13

the dissent of our colleague and the broader cont ext of analogous provisions in other treaties, we recognize that fair-minded jurist s could dispute that conclusion. We will therefore assume without deciding that the language in question is ambiguous because the ultimate result is the same either way.
Consistent with the principle that treaties should be liberally construed to effect the intent of the parties, the Supreme Court has instru cted that “[i]n choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed contro lling in the interpretation of international agreements,” and, in the same ve in, that “[i]f a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlargi ng it, the more liberal construction is to be preferred.” Factor v. Laubenheimer , 290 U.S. 276, 293-94 (1933) (citing
Jordan v. Tashiro , 278 U.S. 123, 127 (1928); Asakura v. City of Seattle , 265 U.S. 332, 339-40 (1924); Tucker v. Alexandroff , 183 U.S. 424, 437 (1902); In re Ross , 140 U.S. 453, 475 (1891); Geofroy v. Riggs , 133 U.S. 258, 271-72 (1890)); see also see also Nielsen v. Johnson , 279 U.S. 47, 52, 57-58 (1929) (same). These sound prin ciples direct us to rejecta “narrow and restricted construction” of Article 7, resolving ambiguity in favor of a broader reading of the rights it grants to persons facing extradition. 3

3 The dissent mistakenly reads Factor as requiring a blanket presumption in favor of the rights of the signatory countries and therefore in fa vor of extradition. Other cases relying on the same language favoring broad construction of rights granted by a treaty make clear th at the rights accord ed liberal construction under this presumption include rights granted to individuals rather than governments. See Nielsen v. Johnson , 279 U.S. 47, 52, 57-58 (1929); Jordan v. Tashiro , 278 U.S. 123, 127 (1928); Asakura v. City of Seattle , 265 U.S. 332, 339-40 (1924); Geofroy v. Riggs , 133 U.S. 258, 271-72 (1890). Contrary to the dissent’s representations, Factor announced no broad default rule in favor of extradition in interpreting an y extradition treaty. It merely applied existing principles of treaty interpretation—principles that emphatically do not presume that the rights of foreign governments must always be given precedence over indi vidual rights accorded by a treaty. See Factor , 290 U.S. at 293-94 (citing wellsettled principles of treaty interpretation); Nielsen , 279 U.S. at 52, 57-58; Jordan , 278 U.S. at 127. In contrast to the protective cl ause at issue in this case, Factor focused extensively on treaty language authorizing extradition for different categories of offens es, which it ultimately found dispositive. The Supreme Court rebuffed the petitioner’s attempt to read a limitati on into the authorizing language for his offense that the conduct must be criminally punishable in both countrie s—a limitation that, though absent from the pertinent category for his case, was expressly included as to other categories of extraditable offenses. 290 U.S. at 287-93. Though the Court also discussed a proviso requiring “such evidence of criminality as, according to the laws of the place where the fugitive or pers on so charged shall be found, would ju stify his apprehension and commitment for trial,” it held that this language was read “naturally to re fer to the procedure to be followed . . . and particularly to the quantum of proof—the ‘evidence’—which is to be required” to sustain an extradition request. Id. at 290-91. Indeed, Article 3 of the 1978 Treaty, entitled “Evidenc e Required,” contains nearly identical language. See 1978 Treaty, art. 3 (“Extraditi on shall be granted only if the evidence be found sufficient, according to the laws of the requested party . . . to justify the committal for trial of the person sought if the offense of which he has been accused had been committed in that place.”).No. 14-5860 Cruz Martinez v. United States Page 14

Courts also look to historical evidence of the drafters’ intent “to resolve ambiguities in
the text.” Air France , 470 U.S. at 400; see also Medellín , 552 U.S. at 506-07 (instructing that although “[t]he interpretation of a treaty . . . be gins with its text,” the Court also relies on historical material related to the treaty as “ai ds to its interpretation” (internal quotation marks omitted)); United States v. Stuart , 489 U.S. 353, 366 (1989) (“Nontex tual sources [] often assist us in giving effect to the intent of the Treaty parties, such as a treaty’s ratification history and its subsequent operation.” (citation and internal quota tion marks omitted)). Th ese sources reinforce
our conclusion that Article 7 incor porates the Speedy Trial Clause.
First, Article 7 uses notably broader language than the corresponding provision in the previous extradition treaty with Mexico, sugg esting an intent to expand protection against untimely extradition. The prior treaty forbade extradition in cases where criminal prosecution
for the offense would be “barred by limitation according to the laws of the country to which the requisition is addressed.” Extrad ition Treaty, U.S.-Mex ico, art. III, Feb. 22, 1899, 31 Stat. 1818 (emphasis added). Additionally, at the time of the negotiations, the only published case in the United States addressing whether similar languag e could be interpreted to include the Speedy
Trial Clause was In re Extradition of Mylonas , 187 F. Supp. 716 (N.D. Ala. 1960), which found
it a matter of common sense that an analogous provision did incorp orate the constitutional right.
Id. at 721 (applying a provision inco rporating defenses based on th e “lapse of time or other lawful cause”). In the context of prior treaty language and the then-recent Mylonas holding, the choice to broaden the language in the 1978 Treaty supports an interpretation permitting timeliness challenges based on defenses other than the statute of limitati ons, including the right to a speedy trial.
Reading the language of Article 7 in lightof its context and purpose and construing broadly the rights granted therein consistent with the principles of treaty construction, we hold that the lapse of time protections in U.S law inco rporated by that provis ion include the protection against post-accusation prosecutorial de lay found in the Speedy Trial Clause.No. 14-5860 Cruz Martinez v. United States Page 15

B. The Dissent
The dissent’s interpretation of Article 7 is unt enable. Unable to muster a coherent textual
basis for its restrictive reading of the provision, 4 the dissent instead relies on a cascade of inapposite citations. The difficulty is that, with the exception of Yapp v. Reno , 26 F.3d 1562 (11th Cir. 1994), and a handful of unpublished district court cases from California, none of the multitude of cases, treaties, or texts cited by the dissent considers, much less rejects, the possibility that a clause incorporating “lapse of time” defenses in an extradition treaty may include constitutional speedy trial protections. Inst ead, most of these citations merely point to the use of the term “lapse of time” in some proximity to the statute of limitations. See, e.g. , Extradition Treaty, U.S.-Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866 (providing, in an article titled “Lapse of Time” that “[e] xtradition shall not be denied on the ground that the prosecution or the penalty would be barred under the statute of limitations in the Requested State”); Black’s Law Dictionary 1321 (10th ed. 2014) (referring to the lapse of time in defining a period of prescription, but in no way e quating the two as synonymous); Canadian N. Ry. Co. v. Eggen , 252 U.S. 553 (1920) (interpreting the term “lapse of time” to incorporate statutes of limitation in a civil maritime context).
These citations prove little, if anything. Comparison with other extradition treaties that make express reference to statutes of limitati on in fact highlights the comparatively broad language employed in the U.S.-Mexico Treaty at issue today. Indeed, the extradition treaties with both Argentina and the Organization of Eastern Caribbean States, cited by the dissent, mention the lapse of time and statutes of limitation in particular only to establish that a person facing extradition does not have recourse to those protections. See Extradition Treaty, U.S.-Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866; S. Treaty Doc. No. 105-13 (1997); Extradition Treaties, U.S.-O.E.C.S., art. 8, S. Treaty Doc. No. 105-19 (1997). The ex tradition treaty with France does contain language comparable to that with Mexico—but its specification about the treatment of acts of interrupti on emphasized by the dissent does nothing to define or limit its incorporation of defenses to prosec ution based on “lapse of time.” See Extradition Treaty, U.S.- Fr., art. 9, Apr. 23, 1996, S. Treaty Doc. No. 105-13 (1997). Nor does the UN model treaty

4 See footnote 1, supra.No. 14-5860 Cruz Martinez v. United States Page 16

support our colleague’s unduly restricted reading of Article 7. The m odel treaty in fact recommends even broader language that would mandatorily bar extradition “[i]f the person whose extradition is requested has, under the law of either Party, become immune from prosecution or punishment for any reason , including lapse of time or amnesty.” G.A. Res. 52/88, U.N. Model Treaty on Extradition, art. 3(e) (emphasis added). Discussion of the particular intricacies posed by st atutes of limitation in footnote s and ancillary documents about the model treaty does nothing to limit or define the recommended incorporation of lapse of time
defenses.
Truly grasping at straws, the dissent cites to the existence of cases where litigants did not argue that a “lapse of time” provision incorporated the speedy trial right. See Dissent at 33 (citing twelve cases that are inapposite by defi nition). In the cases where the petitioner was facing extradition to Canada and Au stralia, the omission is entirelyunsurprising: the treaties at issue incorporated only the lapse of time provisions of the countries requesting extradition, so U.S. timeliness protections were not at issu e in the posture of the cases under review. Murphy , 199 F.3d at 602-03 (Canada); Drayer , 190 F.3d at 415 (Canada); Kamrin , 725 F.2d at 1227-28 (Australia). And in In re Extradition of Kraiselburd , 786 F.2d 1395 (9th Cir. 1986) (Argentina), another case cited by the dissent in the same pa ssage, the petitioner did in fact raise a Speedy Trial claim, though he sought to ground it in more general language granti ng an extraditee “the right to use such remedies and recourses as ar e provided by” the law of the requested party—a position the Ninth Circuit found foreclosed by preced ent summarily rejecting a similar argument. 786 F.2d at 1398 (citing Kamrin , 725 F.2d at 1227-28). In any even t, the fact that a particular argument was not made in a particular case o ffers no sound guidance, much less authority, for the question before us today.
Similarly, the unpublished district court op inions cited by the dissent are neither authoritative nor persuasive. L acking direct authority on whethe r Article 7 incorporates the speedy trial right, each of these cases conflates the issue with precedent addressing whether there is an inherent right to a speedy extradition, or whether the speedy trial right is in corporated by generic “remedies and recourses” language. See Gonzalez v. O’Keefe , No. C 12-2681, 2014 WL 6065880, at *2-4 (N.D. Cal. Nov. 12, 2014); In re Extradition of Flores Ortiz , No. 10-MJ-2016-No. 14-5860 Cruz Martinez v. United States Page 17

JMA, 2011 WL 3441618, at *5-6 (S.D. Cal. Feb. 9, 2011); In re Extradition of Salazar , No. 09MJ2545-BLM, 2010 WL 2925444, at *6 (S.D. Cal. July 23, 2010); United States v. Garfias , No. CR-09-xr-90128, 2009 WL 2580641, at *2-3 (N.D . Cal. Aug. 20, 2009). Such cases do not offer us any guidance.
The sole appellate case on point, Yapp v. Reno , 26 F.3d 1562 (11th Cir. 1994), offers no more intellectually robust support for the dissent’s position. Th ere, the EleventhCircuit relied on the same definition-by-proximity method of reas oning as the dissent to conclude that the phrase “lapse of time” referred prim arily, and ultimately exclusively, to the statute of limitations.
26 F.3d at 1566. Both Yapp and the dissent cite to a comment to Restatement § 476 that discusses the applicability of st atutes of limitation under various formulations of “lapse of time” protections agains t extradition. Id. at 1567 (citing Restatement § 476, comment (e)). That comment, however, does not purport to restrict the te rm “lapse of time” to statutes of limitation. Significantly, the same Restatement elsewhere indicates that the phrase “lapse of time” may encompass other defenses, such as laches:

c

. Lapse of time. No general rule of international law limits the time within which a claim can be made. However, internati onal tribunals have barred claims because of a delay in presentati on to the respondent state if the delay was due to the negligence or laches of the claimant state

.
Restatement § 902, comment (c) (emphasis added). Of c ourse, § 902 addresses interstate claims and remedies rather than extradition; nonetheless, it demonstrates that the phrase “lapse of time” may easily be used in connection w ith a broader set of claims and defenses than simply statutes
of limitation.
Indeed, “lapse of time” is a phrase frequently used in American law in connection with any number of legal doctrines that operate based on the passage of time. For example, the term is frequently used with reference to laches and due process claims deriving from alleged unjustifiable delay. See, e.g. , King v. Alaska S.S. Co ., 431 F.2d 994, 996 (9th Cir. 1970) (“[T]he right to bar an action for lapse of time is a substan tive right. It is conceded that the relevant lapse of time standard in maritime law is the doctrine of laches.” (citation omitted)); Costello v. United
States , 365 U.S. 265, 281 (1961) (“In cont ending that lapse of time should be deemed to bar the Government from instituting this proceeding, the petitioner argues that the doctrine ofNo. 14-5860 Cruz Martinez v. United States Page 18

laches should be applied to denaturalization pr oceedings, and that in any event, the delay of 27 years . . . denied him due process of law in the circumstances of the case.”). In other circumstances, “lapse of time” is used in referenc e to rights that are claimed to have vested based on the passage of time. See, e.g. , Chase Secs. Corp. v. Donaldson , 325 U.S. 304, 311-12 (1945) (“[W]here lapse of time has not invested a party w ith title to real or personal property, a state legislature, consistently with the Fourteenth Amendment, may repeal or extend a statute of limitations.”); Fed. Trade Comm'n v. Algoma Lumber Co. , 291 U.S. 67, 79-80 (1934) (holding that misleading advertising was still actionable thir ty years after initial us e because “[t]here is no bar through lapse of time to a proceeding in the public interest to set an industry in order by removing the occasion for deception or mistake . . . .”). Additionally, the concept of “lapse of time” is sometimes invoked in arguments about prope r judicial procedure or the proofs required to meet an evidentiary standard. See, e.g. , Davis v. Adult Parole Auth. , 610 F.2d 410, 414-15 (6th Cir. 1979) (discussing othe r courts’ holding that “the laps e of time affects the quantum of required proof as well as the good faith and credib ility of the moving party” (internal quotation marks omitted)); Berkshire Land Co. v. Fed. Sec. Co. , 199 F.2d 438, 441 (3d Cir. 1952) (“The presumption of payment arising from lapse of time does not work an extinguishment of the debt, nor, unlike the bar of the statute of limitations, do es it require a new promis e or its equivalent to revive it.” (internal quotation marks omitted)).
Finally, and of course most re levantly here, “lapse of time” is used in reference to constitutional speedy trial claims. See, e.g. , Doggett , 505 U.S. at 658-69 (O’Connor, J., dissenting) (“The only harm to petitioner from th e lapse of time was potential prejudice to his ability to defend his case.”); Robinson v. Whitley , 2 F.3d 562, 569 (5th Cir. 1993) (“[A]
defendant will not be heard to co mplain of a lapse of time attribut able to continuances he sought and received from the trial court . . . . In such a situation, the speedy trial clock is properly tolled.” (internal quotation marks omitted)); United States v. Greene , 737 F.2d 572, 575, n.2 (6th Cir. 1984) (“Greene makes no contention to this Court that the lapse of time from May 10, 1983 until August 22, 1983 when the initial trial began, or the time period from August 25, 1983 when a mistrial was declared, until October 24, 1983 wh en the second trial began, infringed upon his constitutional or statutory rights.”); United States v. Hauff , 461 F.2d 1061, 1063 (7th Cir. 1972) (“With regard to the lapse of time between the accusation and the trial, the Speedy Trial ClauseNo. 14-5860 Cruz Martinez v. United States Page 19

guarantees to a criminal defendant [] that the G overnment will move with the dispatch which is appropriate to assure him an early and proper di sposition of the charges against him.” (internal quotation marks omitted)); Moser v. United States , 381 F.2d 363, 364 (9th Cir. 1967) (holding that the defendants’ speedy trial claim failed where they did not “assert, nor does anything in the trial record tend to show, that because of the la pse of time they were prejudiced in making their defense”); see also Burns v. Lafler , 328 F. Supp. 2d 711, 719 (E.D. Mi ch. 2004) (“To prosecute a defendant following an investigat ive delay does not deprive him of due process, even if his defense is somewhat prejudiced by the lapse of time.”).
All of the above completely deflates the di ssent’s hyperbolic statem ent that “[t]oday’s decision brings more than two centuries of settle d understanding to an end.” Dissent at 29. The issue can hardly be considered “settled” with only one appella te decision directly on point ( Yapp
v. Reno ), a decision that we believe was wrongly deci ded for the reasons just stated. Similarly unconvincing is the dissent’s view that only a fixed time limit is consistent with Article 7’s “lapse of time” provision. Dissent at 29. The dissent cites no authority to support this novel proposition, and we have found none.
Fretting over the potential br eadth of Article 7, the disse nt next suggests that our interpretation would incorporate the Speedy Tria l Act and professes con cern that its provisions would be difficult to apply in ex tradition proceedings. This con cern is misplaced because Article 7 does not incorporate the statut ory right—the dissent’s mischaracterization of our opinion notwithstanding. In contrast to the constitutional right, violati ons of the Speedy Trial Act do not “bar” a prosecution—that is, require that the charges be dismissed with prejudice. See 18 U.S.C. § 3162 (leaving decision of whether to dismiss withprejudice to the disc retion of the district court). The discretionary remedy provided by statute is inconsistentwith the langua ge of Article 7, which incorporates mandatory bars to prosecution. And even assuming arguendo that the statute somehow did fall within Article 7, it cont ains an exclusion for “[a]ny period of delay resulting from the absence or unavailability of the defendant” that would render the seventy-day clock essentially irrelevant in extradition cases. 18 U.S.C. § 3161(h)(3). The dissent’s alarmism is thus entirely without basis.No. 14-5860 Cruz Martinez v. United States Page 20

The dissent also argues that comity require s a narrow interpretation of Article 7, but it fundamentally misunderstands the nature of the com ity principles it cites. It suggests that we should be guided by the principle that American courts must avoid “supervising the integrity of the judicial system of another sovereign nation.” Dissent at 35 (quoting Jhirad v. Ferrandina , 536 F.2d 478, 484-85 (2d. Cir. 1986)). This principl e, known as the rule of non-inquiry, bars courts “‘from evaluating the fairness and human eness of another country’s criminal justice system, requiring deference to the Ex ecutive Branch on such matters.’” Hilton , 754 F.3d at 83- 84 (quoting Khouzam v. Att’y Gen. of United States , 549 F.3d 235, 253 (3d Cir. 2008)). This rule has a narrow scope and is typically cited only to bar inquiry into humanitarian concerns or a lack of procedural rights in a foreign criminal justice system. See Hilton , 754 F.3d at 83; Khouzam , 549 F.3d at 253; Prasoprat v. Benov , 421 F.3d 1009, 1016-17 (9th Cir. 2005); Ahmad v. Wigen , 910 F.2d 1063, 1067 (2d Cir. 1990); see also Glucksman v. Henkel , 221 U.S. 508, 512 (1911) (“We are bound by the existence of an extrad ition treaty to assume th at the trial will be fair.”). Comity principles cannot broaden th e authority to extradite beyond the terms of the treaty. Tucker , 183 U.S. at 436.
Although courts do not inquire into the fair ness of criminal procedure or punishment under the laws of the country seekin g extradition, it is plainly a c ourt’s role to determine whether extradition is permissible under th e terms of the governing treaty. Valentine , 299 U.S. at 8-9. Similarly, the executive’s discretion to grant or deny extradition arises only after a person has
been certified as extraditable under th e governing treaty. Hoxha v. Levi , 465 F.3d 554, 564-65 (3d Cir. 2006). Nor, contrary to the dissent’s suggestion, is it in any way inappropriate in our constitutional system for courts to enforce individual rights grante d by a treaty in the appropriate exercise of habeas jurisdiction. Hamdi v. Rumsfeld , 542 U.S. 507, 536 (2004) (“[T]he Great Writ of habeas corpus allows the Judicial Branchto play a necessary role in maintaining th[e] delicate balance of governance, serving as animportant judicial check on the Executive’s
discretion in the real m of detentions.”). 5

5 The dissent cites Zivotofsky ex rel. Zivotofsky v. Kerry , 135 S. Ct. 2076, 2094-96 (2015) to suggest that our holding today treads on the executive’s prerogative, but that case cannot be pressed into such inappropriate service. The Court emphasized that “[i]n foreign affairs, as in the domestic realm, the Constitution ‘enjoins upon its branches separateness but interdependence, autonomy but reciprocity.’” Id. at 2087 (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 635 (1952)). Extradition, far from constituting a power solely within theNo. 14-5860 Cruz Martinez v. United States Page 21

It is fundamental that “[t]here is no executive discretion to surrende r [an individual] to a foreign government, unless that discretion is gran ted by law”—in this case, by the terms of the 1978 Treaty. Valentine , 299 U.S. at 9. Articl e 7 states a mandatory rule that extradition shallbe denied where the prosecution would be barred due to lapse of time; and “it is our duty to interpret [the treaty] according to its terms,” without “add[ing] to or detract[ing] from them.” Id. at 11. Where a person facing extradition raises a valid defense under the terms of the treaty, a court with proper jurisdicti on may not ignore his claim. 6

As a final argument against applying the Speedy Trial Clause in the extradition context, the dissent raises the specter of the nonappealability of extradition decisions to suggest that the speedy trial right in Article 7 will be applied in meritless cases. This concern is overstated and misleading. In any extradition case, no matter the defense raised or rejected, the magistrate judge’s decision is not subject to a direct appeal . Our extradition framework entrusts magistrate judges with the responsibility to fairly apply the terms of the treaty, and to deny extradition when the treaty so requires—whether because the cr ime does not qualify under the treaty, because the requesting party has not establis hed probable cause, or because extradition has become barred by the lapse of time. The dissent cites to In re Extradition of Mackin , 668 F.2d 122, 126-30 (2d Cir. 1981) (Friendly, J.), seemingly for the notion th at extradition decisions leave the losing party without recourse. But that proposi tion is clearly wrong given that we are sitting in habeas review of just such a decision in this case. What Mackin actually says is that although “decisions . . . denying or granting requests for extradition are not appealable under 28 U.S.C. § 1291 ,” id. at 127 (emphasis added), parties to an extradition decision may seek alternative means of redress. “[T]he extraditee in cases of grant and the reques ting party in cases of denial have alternative, albeit less effective, avenues of relief. The extraditee may seek a writ of habeas corpus, the

authority of the executive, is a power governed by binding treaty provisions and constitutional norms that courts must enforce in the cases properly before them. Valentine , 299 U.S. at 9-11. 6 For this reason, the dissent’s citation to United States v. Emuegbunam , 268 F.3d 377 (6th Cir. 2001) is irrelevant. See Dissent at 31. That case addressed the question of whether an enforceable individual right existed under the Vienna Convention, see id. at 389-90, 392, an issue long settle d in the extradition context, where extraditees have the right to test the legality of their extradition under the governing treaty by means of a petition for a writ of habeas corpus, Valentine , 299 U.S. at 18; United States v. Rauscher , 119 U.S. 407, 418-19, 430-31 (1886); Drayer , 190 F.3d at 412 n.2; see also Murphy , 199 F.3d at 602-03; Quinn , 783 F.2d at 787-90, 811-14; Kamrin , 725 F.2d at 1227. There is no questio n that Article 7 confers an individually enforceable right to avoid extradition where the requirements of the article are met; our only task is to interpret its terms.No. 14-5860 Cruz Martinez v. United States Page 22

denial or grant of which is appealable, and the requesting party may refile the extradition request.” Id. at 128 (citation omitted).
And the dissent’s fear that our holding w ill serve as a beacon guiding forum-shopping fugitives to our circuit is similarly overblown. Our decision today puts us at odds with the Eleventh Circuit’s opinion in Yapp , but the complications of a ci rcuit split are nothing unusual. The complications are instead a routine consequen ce of the federal system’s regional hierarchy, where differences can be resolved by the Supreme Court. In any event, these concerns do not outweigh Petitioner’s rights under the treaty and the Un ited States Constitution.
C. Petitioner’s Speedy Trial Claim
To determine whether the lapse of time between accusation and trial constitutes a violation of the Sixth Amendment, courts balance “‘whether delay befo re trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.’” United States v. O’Dell , 247 F.3d 655, 667 (6th Cir. 2001) (quoting Doggett , 505 U.S. at 651). If the government uses “r easonable diligence” in seeking to bring an accused to justice, a speedy trial claim will gene rally fail “as a matter of course however great the delay, so long as [the defendant] could notshow specific prejudi ce to his defense.” Doggett , 505 U.S. at 656. “[O]fficial bad faith in causi ng delay will be weighed heavily against the government,” resulting in dismissal if the delay is significant. Id. Where delay results from “official negligence in bringing an accused to tria l,” the need for the defendant to show prejudice from delay lessens with the length of time elapsed. Id.

On the record before us, it is clear that Peti tioner has a speedy trial claim that is at least facially viable. More than six years elapsed between the a lleged shooting on December 31, 2005 and Mexico’s informal request for his extrad ition in May 2012, and another year and three months passed before Mexico fo rmalized its extradition request with the delivery of a complete packet in August 2013. The Supreme Court has he ld that a delay of this magnitude raises a presumption of prejudice that may justify relief. Doggett , 505 U.S. at 658. Additionally, it appears that Petitioner left Mexi co without any knowledge that he was charged with a crime, andNo. 14-5860 Cruz Martinez v. United States Page 23

there is at least circumstantial evidence of negligence and unjustified failure to prosecute on the part of the Mexican government.

We do not, however, have the benefit of a di strict court decision making factual findings on these issues or analyzing the application of the Barker factors. Nor has the government been asked to present evidence that Mexico diligent ly sought Petitioner during the period that he was living in the United States. Rema nd is therefore necessary. The government argues to this Court
that it would be infeasible or improper to conduct the fact-fi nding necessary to adjudicate a speedy trial claim. Resp.’s Br. at 39. Yet, the administrative ch allenges are not nearly so grave as the government would suggest. Application of the Barker factors in an extradition setting is not likely to result in a searching inquiry into th e actions of foreign officials. In most cases,
introduction of evidence that the requesting country pursued the suspect with “reasonable diligence” will end the inquiry, since under Doggett a showing of diligenc e will nearly always defeat a speedy trial claim “howev er great the delay.” 505 U.S. at 656. In other cases, where the extraditee is alleged to be a fugitive from justice, the speedy trial analysis will be comparable to the analysis already implemented by courts cons idering claims that th e person’s flight from justice tolled the statute of limitations. See 18 U.S.C. § 3290; Jhirad v. Ferrandina , 536 F.2d 478 (2d Cir. 1976).
The 1978 Treaty offers a ready mechanism, in the form of Article 12, for the United
States to obtain the evidence nece ssary to make such a showing. That provision anticipates that there may be cases where the executive of the requested country “considers that the evidence furnished in support of the request for extraditio n is not sufficient to fulfill the requirements of [the] Treaty,” and therefore provides that in suchcases the requested country “shall request the presentation of the necessary evidence.” 1978 Treaty, art. 12. It is worth no ting that this is not a discovery rule but rather a diplomatic mechanism; there is no risk that Mexico will be forced to offer up evidence of bad-faith delay for review by an American court. Additionally, in light of the relaxed rules of evidence applicable in extradition hearings, proof of Mexico’s diligence may be presented in any reasonably reliable form adequate to document the country’s efforts in seeking Petitioner.No. 14-5860 Cruz Martinez v. United States Page 24

We therefore remand this case to the district court to conduct the Barker analysis in the first instance, after taking such relevant ev idence as may be offered by the parties.

III. Petitioner’s Brady Rights

Petitioner also raises a cons titutional due process claim against the U.S. government
under Brady v. Maryland , 373 U.S. 83 (1963), arguing th at he was entitled to disclosure of U.S.
consular records related to the 2009 communica tions between the United States and Mexican
authorities about the Oaxacan arrest warrant in his case. In Demjanjuk v. Petrovsky , 10 F.3d 338, 353 (6th Cir. 1993), this Court expressly extended Brady “to cover denaturalization and extradition cases where the government seeks dena turalization or extradition based on proof of alleged criminal activities of the party proc eeded against.” As the Supreme Court has recognized, “ Brady claims have ranked within the trad itional core of habeas corpus.” Skinner v. Switzer , 562 U.S. 521, 131 S. Ct. 1289, 1300 (2011). The government “violates a defendant’s right to due process if it withhol ds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain , 132 S. Ct. 627, 630 (2012). Evidence is
“material” under Brady “when there is a reasonable proba bility that, had the evidence been disclosed, the result of the proceeding would have been different.” Id.
The scope of the government’s Brady obligations extends to evidence material to an affirmative defense or the ability of a defe ndant to assert his c onstitutional rights. See, e.g. , United States v. Gamez-Orduno , 235 F.3d 453, 461 (9th Cir. 2000) (“The suppression of material evidence helpful to the accused, whether at tria l or on a motion to suppress, violates due process.”) (holding that Brady obligations included disclosure of a report that was material to defendants’ standing to pursue a F ourth Amendment suppression motion); accord Nuckols v.
Gibson , 233 F.3d 1261, 1266 (10th Cir. 2000) (finding a Brady violation where prosecution
withheld evidence that was material to whethe r the defendant’s confession should have been suppressed). The district cour t’s ruling that the government wa s not required to disclose the
documents related to the 2009 communications betw een the United States and Mexico rested on
its belief that Petitioner could not assert a speedy trial defense to extradition under the treaty. As discussed above, that premise was in error. Pe titioner is entitled to receive evidence in theNo. 14-5860 Cruz Martinez v. United States Page 25

government’s possession that is material to hi s Article 7 defense to extradition based on the Speedy Trial Clause.

Nor is this outcome anomal ous, contrary to the government ’s strenuous effort to cast doubt on this Circuit’s binding precedent in Demjanjuk . Courts have unanimously held that the government is bound by principles of due proce ss in its conduct of extradition proceedings. Valenzuela v. United States , 286 F.3d 1223, 1229 (11th Cir. 2002) (“ [T]he judiciary must ensure that the constitutional rights of individuals subj ect to extradition are observed.”) (granting habeas on a due process claim arising from the government’s introduction of evidence in violation of a confidentiality agreement); Plaster v. United States , 720 F.2d 340, 348 (4th Cir. 1983) (remanding for consideration of a due process claim based on the government’s violation of immunity agreement); Petition of Geisser , 627 F.2d 745, 750 (5th Ci r. 1980) (agreeing that noncompliance with a plea bargain is a valid constitutional claim that may be raised to challenge extradition proceedings and that “a purported tr eaty obligation of the United States government cannot override an individual constitutional right” ). Just as the government does not have the
discretion to surrender an indivi dual to a foreign government w ithout express authority granted by law, Valentine , 299 U.S. at 9, the government likewise cannot obtain that authorization in a particular case by withholding material evidence that is w ithin its possession, Demjanjuk , 10 F.3d at 354.
Here, Petitioner seeks only documents alrea dy in the possession of the U.S. government. Cf. Drayer , 190 F.3d at 415 (denying a claim under Demjanjuk where “[t]he United States complied with its discovery obligations by tu rning over the materials in its possession to petitioner” and, naturally, “[i]tems that may be in the possess ion of Canada must be sought in a Canadian forum”). It seems likely, to say the le ast, that an inquiry regarding his case from the United States in 2009—three years before Mexico submitted its informal extradition request, and four years before the request was perfected by th e delivery of the full extr adition packet—will be material to Petitioner’s speedy trial claim. If th e documents are in fact material and favorable to the accused, the government must disclose them. On remand, th e district court should conductNo. 14-5860 Cruz Martinez v. United States Page 26

appropriate proceedings to ensure that the govern ment’s constitutional obliga tions in this regard

are met. 7

IV. Procedural Due Process Claim
Finally, Petitioner asserts a constitutional clai m that his procedural due process rights
under the Fifth Amendment were violated when he was not granted a prompt hearing and judicial review of the purporte d “urgency” asserted to allow his arrest unde r Article 11 of the 1978 Treaty. Article 11 authorizes the provisional arrest of a suspec t prior to the delivery of the formal extradition request, but only “in the case of urgency.” 1978 Treaty, art. 11. The country requesting extradition must furnish the complete extr adition packet within si xty days of when the individual is taken into custody; if it fails to do so, “[t]he provisiona l arrest shall be terminated.”
Id.
Petitioner first argued that there was no legiti mate urgency to justif y reliance on this procedure within days of being taken into cust ody, yet he was unable to receive a ruling on the issue during the sixty-day period. (M.R. 33, Detent ion Order, PageID 132; H.R. 17, Transcript, PageID 196-98, 201; H.R. 15, Order, PageID 165.) Mexico duly delivered its formal extradition request to the United States with in the allotted time, and the ma gistrate judge eventually ruled that Petitioner’s objection to the provisional arrest procedure was moot. The lack of a timely hearing and ruling on the issue, Pe titioner asserts, was in violati on of his procedural due process rights under the U.S. Constitution.
While we are not unsympathetic to Petitione r’s argument, his right to receive a prompt hearing and judicial review of the legality of his arrest under Article 11 has long since become a moot issue. “[T]his Court lacks jurisdiction to consider any case or issue that has ‘lost its character as a present, live contr oversy’ and thereby becomes moot.” Demis v. Sniezek , 558 F.3d 508, 512 (6th Cir. 2009) (quoting Hall v. Beals , 396 U.S. 45, 48 (1969)). Mexico’s extradition request was formalized within the applicable timeframe, and Petitioner does not contest the validity of his ongoing detention under the authority of Article 10. The government now has the

7 Upon a proper showing by the government, in camera review may be ordered to protect the confidentiality of any sensitive communications. We echo the sentiment of the Fourth Circuit that “we have no reason to doubt that district courts can adequately protect the confidentiality of [certain sensitive] communications by considering them in camera. ” Mironescu v. Costner , 480 F.3d 664, 673 (4th Cir. 2007).No. 14-5860 Cruz Martinez v. United States Page 27

right to detain him for extradition whether or no t it can show that his case called for urgency.
Petitioner concedes this much.
Petitioner argues that although his claim may be moot, we should address the issue because it is capable of repetition yet evading review. This exception to the mootness doctrine allows a federal court to exercise jurisdic tion only if two requirements are met: “‘(1) the challenged action was in its dura tion too short to be fully litig ated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.’” Demis , 558 F.3d at 516 (quoting Weinstein v. Bradford , 423 U.S. 147, 149 (1975) ( per curiam )).
There is no reasonable basis for anticipati ng that Petitioner may again be subject to provisional arrest under Article 11. He concedes that his current detention is authorized by Article 10, as supported by Mexico’s formal extradition request. If Petitioner’s habeas petition is granted or if the Secretary of State exercises his discretion to refuse extradition in this case, Petitioner will not again face extradition for thes e charges under the authority of Article 11. Cf. Caltagirone v. Grant , 629 F.2d 739, 750 (2d Cir. 1980) (holding that the lega lity of a provisional arrest was not moot where it was not yet determined that the formal extradition request was legally adequate).

CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.No. 14-5860 Cruz Martinez v. United States Page 28

______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

______________________________________________________ SUTTON, Circuit Judge, concurring in partand dissenting in part. Most people who commit crimes do not turn themselves in. They often flee, sometimes leaving the city of the crime, sometimes even the country. If a fug itive leaves the country, that complicates law enforcement efforts. One trait of sovereignty is that countries have no legal, as opposed to moral, obligation to turn criminal suspects over to another co untry for prosecution. The point of extradition treaties is to prev ent such crimes from going unpunished by imposing a golden rule obligation on each party to the treaty—an agreem ent by each country to return haven-seeking fugitives to the other.
Avelino Cruz Martinez, it is fair to say, was not thinking about the golden rule when he
shot two men at a New Year’s Eve party in a small Mexican village. Invoking the 1978 United States-Mexico extradition treaty, Mexico asked the United States to return Cruz Martinez to
Mexico to be tried for murder. Cruz Martinez filed a habeas corpus peti tion, claiming that his
extradition would violate Article 7 of the treaty, which prohibits extradition when “prosecution” or “enforcement” of the charged offense “has become barred by lapse of time according to the laws of the requesting or request ed Party.” Extradition Treaty, U.S.-Mex., art. 7, May 4, 1978, 31 U.S.T. 5059. In particular, he argues that his ex tradition would violate (1 ) the relevant statute of limitations and (2) his Sixth Am endment right to a speedy trial.
I agree with the majority—and everyone else who has consid ered the matter—that this provision covers statute-of-limitatio n violations. And I agree with the majority that the relevant
American and Mexican statutes of limitations do not bar Cruz Martinez’s extradition. But I must part ways with the majority over its conclusion that the same phrase also incorporates the protections of the Speedy Trial Clause of the Sixth Amendment to the United States
Constitution.

That innovation stands alone. The United States concluded its first extraditi on treaty in 1794. It has since concluded hundreds more, many of which include the phrase “barred by lapseNo. 14-5860 Cruz Martinez v. United States Page 29

of time” or something similar. For 221 years, not a single appellate court has interpreted any provision in any of those treaties—whether including these wo rds or not—to extend the Sixth Amendment’s speedy-trial right to someone faci ng extradition. Indeed, virtually all of the relevant “lapse of time” cases do not even includ e a speedy-trial claim. Today’s decision brings
more than two centuries of settled understand ing to an end. By shoehorning speedy-trial protections into the phrase “barred by lapse of time,” the majority has given this mine-run extradition treaty a meaning it doe s not have and in the process ma de nearly irrelevant the one meaning everyone thought it did have. After today’s decision, rest assured, extradition fights will turn on elastic speedy-trial claims, not fixe d statute-of-limitations claims. Because every interpretive tool confirms that the phrase “b arred by lapse of time” doe s not incorporate the constitutional speedy-trial right in to this treaty, Cruz Martinez may not invoke that right to avoid standing trial in Mexico for a crime he agr ees there is probable cause he committed. The majority seeing things differe ntly, I respectfully dissent.

A.

Text. “Extradition shall not be granted,” Arti cle 7 says, “when the prosecution or the enforcement of the penalty for the offense for which extradition has been sought has become barred by lapse of time according to the laws of th e requesting or requested Party.” Extradition Treaty, U.S.-Mex., art. 7, supra , 31 U.S.T. at 5064–65. The language thus covers only circumstances where prosecution is “barred by lapse of time.” Put less passively, time must do the barring. Yet the Sixth Amendment does not create a time bar on trial initiation—a fixed time
after which the trial must be called off. In contrast to statutes of limitations, which do set fixed time periods that bar prosecutions, the Sixth Amendment does no such thing. As the Supreme Court has explained, the speedy-trial right is “ consistent with delays” (and thus consistent with lapses of time) and “depends upon circumstances ,” as it is “impossible to determine with precision when the right has been denied” in our system of “swift but deliberate” justice. Barker v. Wingo , 407 U.S. 514, 521–22 (1972) (emphasis added and internal quotati on marks omitted). The Sixth Amendment imposes not a fixed “tim e period” but a “relat ive,” “amorphous,” and “slippery” one. Id. at 522–23. Because the Sixth Amendment does not create a fixed time limit before a trial must start, a “lapse of time” does not “bar” criminal prosecutions.No. 14-5860 Cruz Martinez v. United States Page 30

Not only does Cruz Martinez’s argument re quire us to add something to the Sixth Amendment that does not exist (a fixed time limit), it requires us to subtract requirements of the
Sixth Amendment that do exist. A criminal de fendant cannot win a Sixth Amendment challenge by pointing to a calendar and counting off the days . He must show that there was no good reason for the delay, that he asserted his rights during the delay, and that his trial was prejudiced by the delay. Id. at 530–33. Given the four requirements for a Sixth Amendment claim, passage of time alone will not establish a sp eedy-trial violation. Yet Article 7 covers only lapse-of-time failings in a prosecution. It does not cover doctrines that bar pr osecution due to the passage of
time and more . No constitutional speedy-trial case to my knowledge has held that a time delay
alone caused the violation. The in quiry always requires an absence of justification at a minimum for the delay. Because the trea ty provision creates a lapse-of -time bar alone and because no precedent says that delay alone establishes a sp eedy-trial violation under the Sixth Amendment, the provision does not apply.
Another textual clue points in the same dir ection. The treaty does not cover any and all “lapse[s] of time” that may occur in a criminal case. It applies only to time lapses with respect to the “prosecution” or “enforcement” of an “offense.” That language naturally applies to statutes-of-limitations periods that “bar[]” the commencement of a “prosecution” or “enforcement” proceeding—which is just when extradition typically w ould be sought. That language also naturally applies to limitations pe riods that “bar[]” “penalt[ies]” already handed down from being “enforce[d]” to the extent any exis t. The same is not tr ue for guarantees that apply after an indictment (or its equivalent) through the e nd of trial. Just as this treaty provision would not cover criminal proce dure guarantees that apply to a trial already begun, it does not naturally apply to speedy-trial requirements that prohibit the criminal pro cess, once started, from continuing. The speedy-trial right after al l operates not by barring the initiation of a prosecution but by preventing it from continuing, see United States v. Marion , 404 U.S. 307, 320 (1971), and applies not at all to the executi on of sentences already pronounced, see United States v. Melody , 863 F.2d 499, 505 (7th Cir. 1988). Thes e rights, like trial guarantees, usually kick in outside the two periods in which extradition limits apply: (1) the initiation of a prosecution and (2) the enforcement of a “judicially pronounced penalty of deprivation of liberty.” Extradition Treaty, U.S.-Mex., art. 1(1), supra , 31 U.S.T. at 5061.No. 14-5860 Cruz Martinez v. United States Page 31

Context. Article 7’s neighbors reinfor ce this conclusion. Article 10(2) of the Treaty sets forth the extradition procedures a requesting State must follow and requires every request to include “[t]he text of the legal provisions relating to the time limit on the prosecution or the execution of the punishment of the offense.” Extradition Treaty, U.S.-Mex., art. 10(2)(d), supra , 31 U.S.T. at 5066 (emphasis added). This disclosure requirement allows the requested State to verify whether extradition is “barred by laps e of time” without embarking upon a self-guided tour of another country’s laws. Article 10(2)’s own interpretation of “lapse of time”—it means “time limit”—confirms that the language covers only statutes of limitati ons, not a speedy-trial right as well. As Cruz Mart inez acknowledges, a “time-bar provi sion” would apply only “to the operation of statutes of limita tions.” Appellant’s Br. 47.
Background principles. In interpreting treaties, as in interpreting statutes, we consider not only text and context but also the background principles from which the language emerged. United States v. Emuegbunam , 268 F.3d 377, 392 (6th Cir. 2001) (interpreting a treaty “consistent with the background presumption agai nst implying personal ri ghts in international treaties”). Those princi ples come to the same end. No extant case, treaty, or commentary endorses the notion that, for extr adition purposes, the phrase “barred by lapse of time” refers to a speedy-trial guarantee on t op of the limitations periods that fa ll naturally within its grasp.
Treaties no less than statutes must be construe d against the backdrop of long-settled usage. Courts have no license to depa rt from that long history.
Similar provisions in similar treaties ratified by the United States associate this phrase with limitations periods only. Take our treaty w ith Argentina, which equates “lapse of time” with the expiration of a “statute of limitations.” Ex tradition Treaty, U.S. -Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866. Or take our treaty w ith France, which prohibits extradition if prosecution is “barred by lapse of time ” in the requested State but requires that State to consider “[a]cts in the [r]equesting State that would interrupt or suspend the prescriptive period .” Extradition Treaty, U.S.-Fr., art. 9, Apr. 23, 1996, S. Treaty Doc. No. 105-13 (1997) (emphasis added); see Black’s Law Dictionary 1321 (10th ed. 2014) (defining “p eriod of prescription” as “[t]he period fixed by local la w as sufficient for obtaining or extinguishing a right through lapse of time. In addition to a fixed number of year s, the period includes whatever further time isNo. 14-5860 Cruz Martinez v. United States Page 32

allowed by local law because of in fancy, insanity, coverture, and other like circumstances.”). Or
take our six treaties with the six countries of th e Organization of Eastern Caribbean States, which
authorize extradition despite a “lapse of time”—defined in terms of “the prescriptive laws” of the requesting or requested country. Extradition Tr eaties with Organization of Eastern Caribbean States, S. Treaty Doc. No. 105-19, at 11, 33, 55, 77, 98, 120 (1997). When transmitting thosetreaties to the Senate for its advice and consent, the President described their six identical lapseof-time provisions as “enabl[ing] extradition request s to be granted irrespective of statutes of limitations” in any State. Id. at vii. None of thes e clauses demonstrates any desire to incorporate the Sixth Amendment into the words “barred by lapse of time.”

Before ratification of this tr eaty, the same phrase notably had long held a similar meaning in American law—in the context of state laws ap plying out-of-state statutes of limitations to outof-state causes of action. Consider the Mi nnesota borrowing statute upheld by the Supreme
Court in Canadian Northern Railway Co. v. Eggen , 252 U.S. 553 (1920). The statute provided that, “[w]hen a cause of action has arisen outside of this state, and, by the laws of the place where it arose, an action thereon is there barred by lapse of time , no such action shall be maintained in this state unless the plaintiff be a citizen of the state who has owned the cause of
action ever since it accrued.” Id. at 558 (emphasis added). Th e Court characterized this statute—phrased in “precisely the same” terms as “those of several other states”—as granting a “nonresident the same rights in the Minneso ta courts as a resident citizen has, for a time equal to that of the statute of limitations where his cause of action arose.” Id. at 560 (emphasis added).

Precedent. Court decisions uniformly support my interpretation. The Eleventh Circuit faced Cruz Martinez’s precise argument and rejected it. Here is what the court said: “Weighing heavily against [the defendant’s] position is the f act that for over a century, the term ‘lapse of time’ has been commonly associated with a stat ute of limitations violation. . . . Thus, we hold that the ‘lapse of time’ provision in [the U.S.-Bahamas] Extraditi on Treaty refers to the running
of a statute of limitations and not to a defendant’s Sixth Amendm ent right to a speedy trial.” Yapp v. Reno , 26 F.3d 1562, 1567–68 (11th Cir. 1994). A di strict court has reached the same
conclusion. See Gonzalez v. O’Keefe , No. C 12-2681 LHK (PR) , 2014 WL 6065880, at *2–4 (N.D. Cal. Nov. 12, 2014). So have several magistrate judges. See In re Extradition of FloresNo. 14-5860 Cruz Martinez v. United States Page 33

Ortiz , No. 10-MJ-2016-JMA, 2011 WL 3441618, at*5–6 (S.D. Cal. Feb. 9, 2011); In re Extradition of Salazar , No. 09MJ2545-BLM, 2010 WL 2925444, at *6–7 (S.D. Cal. July 23, 2010); United States v. Garfias , No. CR-09-xr-90128, 2009 WL 2580641, at *2–3 (N.D. Cal. Aug. 20, 2009).
No precedent still on the books goes the other way.
Also notable are the many cases where the criminal defendant did not even raise the speedy-trial claim, as opposed to a statute-of-limitations claim. If imitation is the sincerest form of flattery, its opposite must be th e most credible form of disagreem ent. Many courts of appeals, including our own, have declined to hold that a lapse-of-time clause includes the right to a speedy trial. The only reason these courts did no t squarely address the i ssue is because not one of the defendants thought the poi nt was worth their time—and thus did not even argue that the phrase “lapse of time” incl uded a speedy-trial right. See Skaftouros v. United States , 667 F.3d 144, 161–62 (2d Cir. 2011) (Greece); Sainez v. Venables , 588 F.3d 713, 715–17 (9th Cir. 2009) (Mexico); Murphy v. United States , 199 F.3d 599, 602–03 (2d Cir. 1999) (Canada); In re Extradition of Drayer , 190 F.3d 410, 415 (6th Cir. 1999) (Canada); Ross v. U.S. Marshal for E. Dist. of Okla. , 168 F.3d 1190, 1193–95 (10th Ci r. 1999) (United Kingdom); In re Extradition of
Kraiselburd , 786 F.2d 1395, 1398–99 (9th Cir. 1986) (Kennedy, J.) (Argentina); Kamrin v.
United States , 725 F.2d 1225, 1227–28 (9th Cir. 1984) (Australia); In re Extradition of Ramos
Herrera , 268 F. Supp. 2d 688, 697–99 (W.D. Tex. 2003) (Mexico); In re Extradition of SuarezMason , 694 F. Supp. 676, 686–87 (N.D . Cal. 1988) (Argentina); In re Extradition of Liuksila , No. 13-970 DAR, 2014 WL 5795244, at *6–9 (D.D.C. Nov. 7, 2014) (Finland); United States v. Gonzalez , No. CV 13-1867 R(FFM), 2014 WL 1383972, at *7–10 (C.D. Cal. Apr. 9, 2014) (Mexico); In re Extradition of Johnson , No. 12-65M, 2012 WL 4973938, at *8–10 (W.D. Pa. Oct. 17, 2012) (Mexico). The Ni nth Circuit has gone so far as to describe the lapse-of-time language in this treaty as “embody[ing]” a “limitations requirement.” Clarey v. Gregg , 138 F.3d 764, 767 (9th Cir. 1998).
The majority responds that two of the cases (Murphy and Kamrin ) involved lapse-of-time provisions relating only to the law of the requesting party—Australia in the one and Canada in
the other. Supra at 16. But how that could make a difference eludes me. In each instance, theNo. 14-5860 Cruz Martinez v. United States Page 34

laws of the requesting party includ ed speedy-trial-like protections. See Canadian Charter of Rights and Freedoms § 11(b) (“Any person charged withan offence has the right . . . to be tried within a reasonable time.”); Jago v. District Court (1989) 168 CLR 23 (Aus tl.) (declining to recognize a “special right to a speedy trial” but acknowledging th at undue delay can result in prejudice and thereby violate a defendant ’s right to a fair trial, and citing Barker v. Wingo ). The majority adds that one of the cases ( Kraiselburd ) included a speedy-trial claim. Supra at 16. Yes indeed. But the defendant grounded his clai m on a different clause, one giving fugitives “the right to use such remedies and recourses as are provided by the law of the requested Party.” 786 F.2d at 1398. That, then, was a case involving a defendant intent on bringing a speedy-trial claim but who opted against using the “lapse of time” clause in the same treaty to do so. That is not just the case of the dog who didn’t bark. Chisom v. Roemer , 501 U.S. 380, 396 n.23 (1991). It is the case of the dog who, even when he did bark, chose to bark up a different tree.

Commentary. Scholars have joined the chorus. The Third Restatement of Foreign Relations Law discusses “lapse of time” in terms of “statutes of limitations,” “periods of limitations,” and “time-bar[s].” Restatement (Third) of the Foreign Relations Law of the United
States § 476 cmt. e (1987). It does not refer to speedy-trial rights as a ground for resisting extradition. A scholar recently re jected the notion, concluding that “the right to a speedy trial simply ha[s] no application in international extr adition proceedings, either on the force of the Sixth Amendment alone, or through a ‘lapse of time’ provision in a treaty.” Roberto Iraola, Due Process, the Sixth Amendment, and Internationa l Extradition , 90 Neb. L. Rev. 752, 783 (2012).
Nor is this discussion a modern invention. A ni neteenth-century treatise considered extraditions barred by “lapse of time” and by “statutes of limitations” to be one and the same. John B. Moore, A Treatise on Extradition an d Interstate Rendition § 373 (1891).
The model treaty promulgated by the United Nations to help countries create new extradition regimes also supports this view. That document gives States a variety of options to deal with “lapse of time”: for example, by “provi d[ing] that acts of interruption in the requesting State should be recognized in the requested St ate.” G.A. Res. 52/88, Annex, art. 3(2) & n.9, U.N. Doc. A/RES/52/88 (Dec. 12, 1997). This flexibility, the accompanying best-practices manual explains, stems from the reality th at “[d]omestic legal frameworks governing lapse ofNo. 14-5860 Cruz Martinez v. United States Page 35

time often vary widely, with vari ous formulae for calculating the expiration of the statutory period .” Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistanc e in Criminal Matters ¶ 55, at 19, U.N. Office on Drugs & Crime, http://www.unodc.org/pdf/model_treaty_extradition_revised_manual.pdf (last visited July 9, 2015) (emphasis added).
Default rule. Even if there were some ambiguity about whether the phrase “barred by lapse of time” covered statutes of limitations and speedy-trial rights (which, with respect, there is not), that would not change things. Any ambiguity in an extradition treaty must be construed in favor of the “rights” the “parties” may claim under it. Factor v. Laubenheimer , 290 U.S. 276, 293–94 (1933). The parties to the treaty are countrie s, and the right the treaty creates is the right of one country to demand the extradition of fugitives in the othe r country—to “facilitate extradition between the parties to the treaty.” See M. Cherif Bassiouni, International
Extradition: United States Law and Practice 134 (5th ed. 2007). As the First Circ uit puts the point, Factor requires courts to “interpret extradition treaties to produce reciprocity between, and expanded rights on behalf of, the signatories.” In re Extradition of Howard , 996 F.2d 1320, 1330–31 (1st Cir. 1993). The point of an extradition tr eaty after all is to facilitate extradition, as any country surely would agree ex ante . In the face of one reading of “lapse of time” that excludes the speedy-trial right and another reading that embraces it, Factor says we must prefer
the former.
This default rule accords with comity consider ations that lurk beneath the surface of all
extradition cases. Courts must take care to avoi d “supervising the integrity of the judicial system of another sovereign nation” because doing so w ould “directly conflict with the principle of comity upon which extradition is based.” Jhirad v. Ferrandina , 536 F.2d 478, 484–85 (2d Cir. 1976); see 18 U.S.C. § 3181(b). Respect for the sovere ignty of other countri es explains why an
American citizen who “commits a crime in a fore ign country . . . cannot co mplain if required to
submit to such modes of trial . . . as the laws of that country may prescribe for its own people.” Neely v. Henkel , 180 U.S. 109, 123 (1901). And it e xplains why “[w] e are bound by the existence of an extradition treaty to assume that th e trial [that occurs after extradition is granted]
will be fair.” Glucksman v. Henkel , 221 U.S. 508, 512 (1911) (Holmes, J.). These constraintsNo. 14-5860 Cruz Martinez v. United States Page 36

reflect the reality that “political actors,” not judicial ones, are best equipped to make the “sensitive foreign policy judgments” an extradition request demands. Hoxha v. Levi , 465 F.3d 554, 563 (3d Cir. 2006). The habeas power does not come with the authority to interfere with proceedings “inevitably entangled in th e conduct of our international relations,” Romero v. Int’l Terminal Operating Co. , 358 U.S. 354, 383 (1959), unless the treat y demands it. Just recently, the Supreme Court reminded Congress to tread caref ully before entangling itself in American foreign policies customarily ove rseen by the Executive Branch. Zivotofsky ex rel. Zivotofsky v. Kerry , 135 S. Ct. 2076, 2094–96 (2015). Our court would be wise to heed the same advice here.
Interpreting this treaty in a way that suddenly sweeps speedy-trial rights into its coverage does not honor these objectives and would a ffirmatively disserve them. Because the constitutional speedy-trial right ha s no fixed time limit, in contrast to statutes of limitations, what
extraditee will not raise the claim in all of its indeterminate glory? The mutability of the right makes it impossible to knowhow much delay is too much delay. Take the alleged delay in Cruz
Martinez’s case: around six years. That is notenough to state a speedy-trial claim in view of other considerations, some courts have said, e.g. , United States v. Bass , 460 F.3d 830, 838 (6th Cir. 2006), but it very well could be, some other courts have said, e.g. , United States v. Velazquez , 749 F.3d 161, 186 (3d Cir. 2014). What of th e question of fault? Whether the State or a defendant is more to blame for untoward delays is “[t]he flag all litigants seek to capture” in a speedy-trial claim. United States v. Loud Hawk , 474 U.S. 302, 315 (1986). Before we task the courts of both countries with refereeing these ineffable—and deeply sensitive—inquiries, we should be sure the negotiating coun tries wanted them as umpires.
In the final analysis, Cruz Martinez’s ar gument comes up short. No matter where I
look—to the text of this tr eaty, to the text of othe r treaties, to judicial d ecisions interpreting those treaties, to commentaries explaining those treaties, to guidance explai ning how to draft those treaties, to the Factor default rule—all roads lead to the same conclusion. The United States and Mexico did not impose a speedy-trial limit on the category of extraditable criminals when they referred to the “prosecution” and “enforcement” of certain offenses that have “become barred by lapse of time.”No. 14-5860 Cruz Martinez v. United States Page 37

B.
In arguing that “lapse of time” means someth ing else, Cruz Martinez and the majority note that this is not the first extradition treaty between the United States and Mexico. A previous version prohibited extradition when prosecution or enforcement “has become barred by limitation.” Extradition Treaty, U.S.-Mex., art. III(3), Feb. 22, 1899, 31 Stat. 1818. The present version, they point out, replaced the phrase “barred by limitation” with the phrase “barred by lapse of time” and in the process, they submit, expanded the scope of the provision to cover speedy-trial rights.
But this argument assumes that the new phrase captures more ground than the old phrase with respect to the issue at hand. It does not. The word “time” appears nowhere in the phrase “barred by limitation.” But the context of the treaty, all authority inte rpreting the treaty, and both parties to this case agree that the phrase refers only to time limitations—not anything and everything that might “limit” a criminal prosecution, such as all of the criminal procedure protections that appear in the Bill of Rights and allof the state and federal laws that protect criminal suspects. The fact that the old phrase impliedly included a time limitation eliminates the significance of the new phrase’s reference to “time” no matter how the phrase is glossed: “time bar,” “time limitation,” “lapse of time,” “lap se in time,” “passage of time,” and so on. Cruz Martinez recognizes as much when he c oncedes that the phrase “barred by limitation” “restrict[s] the [old treaty’s] time-bar provision to the operation of statutes of limitations.” Appellant’s Br. 47–49 (emphasis added). If the ol d treaty contained a time-bar provision, as he admits it did, there is nothing about the new language that adds to the provision’s breadth—and thus nothing that gives him tracti on in claiming that it suddenly exte nds to speedy-trial rights. Is it really possible, as the majority seems to th ink, that “barred by lapse of time” and “barred by time limitation” both cover statutes of limitations but just one of them also covers speedy-trial rights? That is a heavy lift as a matter of linguistics and common sense.

Even if, in the face of all evidence to th e contrary, the new phrase somehow some way covered more ground than the old phrase, Cruz Ma rtinez has not shown that “barred by lapse of time” encompasses the right to a speedy trial. Even the most ruthlessly textual analysis of the phrase must return to this reality: Time does the barring, and the const itutional speedy-trial rightNo. 14-5860 Cruz Martinez v. United States Page 38

does not have a fixed time limit, in contrastto statutes of limitations, and it does contain several other requirements beyond just delay, in contrast to statutes of limitations. That is why it makes no difference that “lapse of time” or variations on the phrase have appear ed in the context of several other doctrines with a temporal componen t: laches, estoppel, the Speedy Trial Act, and the speedy-trial right itself. Each of these other doctrines regards the (relative) passage of time as a necessary condition, not a sufficient one, mean ing time and other considerations together do the “barring.” Not so with this clause.
And that is why it makes no difference that th e phrase “lapse of time” might well have a broader meaning in isolation. It might mean all kinds of things in other settings. Witness Hamlet’s plaintive request to his father’s ghost: “Do you not come your tardy son to chide, that, lapsed in time and passion, lets go by the impo rtant acting of your dread command?” William Shakespeare, Hamlet act 3, sc. 4. The question, however, is what words mean “in their context,”
not in the abstract or in other settings. To think otherwise about the matter calls to mind the spelunker who leaves home with an excellent map and a broken headlam p. One is of no use
without the other. So too of text without contex t. Not a single extant source of authority in this context—the language of an international extr adition treaty—equates “barred by lapse of time” with “barred by the Sixth Amendment.”
One court at one point, I must acknowledge, ag reed with Cruz Mart inez’s reading. The
court in In re Extradition of Mylonas , 187 F. Supp. 716, 721 (N.D. Ala. 1960), ruled that the phrase “lapse of time or other lawful cause” a pplied to speedy-trial vi olations, but it did so
without any explanation. When it came time to assess whether an explanation for the Mylonas court’s conclusion could be found, the Eleventh Circuit came up dry, and “expressly disapprove[d]” the district c ourt’s half-sentence ruling. Martin v. Warden , 993 F.2d 824, 829 n.8 (11th Cir. 1993). That just one court in histor y has agreed with Cruz Martinez’s position—for a momentary lapse of time, shall we say—tells us all we need to know about the frailty of this position.

Nor does the dissent in Yapp , 26 F.3d at 1568–73 (Carnes, J., dissenting), another Eleventh Circuit case, add any fuel to this argument. Judge Carnes endorsed the American government’s position in this case when he e xplained that a hypothetic al treaty provisionNo. 14-5860 Cruz Martinez v. United States Page 39

referring only to “lapse of time” would refe r “only to statutes of limitation[s].” Id. at 1570. It is
not often that all rele vant majority opinions and dissents support the same position. Yet that is just the case here—or at least it was until today’s decision.
The majority also leans on the phrase “enfor cement of the penalty” in Article 7, claiming that it eliminates “any doubt that the scope of [Article 7] extends beyond the initiation of prosecution” and incorporates speedy-trial protections. Supra at 10 n.1. “[A]ny doubt”? The majority elsewhere acknowledges that “fair-mind ed jurists could dispute th[e] conclusion.” Id. at 13. Be that as it may, the point is wrong. In manycivil-law countries, statutes of limitations bar not only the initiation of pros ecutions but also excessive de lays between conviction and sentencing. See S. Exec. Rep. No. 104-32, at 13. As it turns out, the law of Oaxaca—the state where Cruz Martinez’s alleged cr ime occurred—provides as much. “The statute of limitations,” it says, “shall be interrupted, and consequently, th e established periods shall be reset and shall begin anew, at the time of the read ing of the charges at arraignment or at the time of the reading of the verdict , even if subject to appeal.” R. 2-19 at 2 (emphasis added). The statute of limitations in other words operates to prevent undue postponement between conviction and the “enforcement of the penalty,” refuting the major ity’s assertion that the “enforcement” language broadens Article 7’s scope.

Cruz Martinez insists that we should not be troubled by the absence of supporting authority or the circuit split his argument creates. He observes that the Eleventh Circuit had not yet overturned Mylonas ’s half-sentence ruling when the United States and Mexico concluded the revised treaty at issue. But it does not follow that the United States meant to incorporate and Mexico meant to import that unexplained, lapse-in-reasoning, less-than-landmark ruling into the treaty. Start with the reality that this treaty does not use th e same language as the treaty
discussed in Mylonas . That one said “lapse of time or other lawful cause ,” 187 F. Supp. at 721 (emphasis added); this one says “lapse of time” alone. It would be odd to conclude that the treaty’s drafters meant to adopt this tria l court’s decision but then used different—and narrower—language. The treaty’s drafting history confirms as much. It s transmittal materials do not mention the Sixth Amendment once, an om ission that takes on special significance in light of the Senate Committee on Foreign Relati ons’ decision to include a list of differencesNo. 14-5860 Cruz Martinez v. United States Page 40

between the treaty and “previously ratified” treaties. See S. Exec. Rep. No. 96-21, at 19 (1979). The speedy-trial right appears nowhere on that list.
Other agreements drafted during the same peri od as the U.S.-Mexico Treaty confirm that Mylonas was not on anyone’s radar. At least seve n extradition treaties drafted between 1960 (when Mylonas was handed down) and 1993 (when it was overruled) include provisions similar to Article 7 of the U.S.-Mexico Treaty. The Senate Executive Reports accompanying each of these documents indicated that “lapse of time” re ferred to statutes of limitations. S. Exec. Rep. No. 98-33, at 4–5 (1984) (Italy); S. Exec. Rep. N o. 98-30, at 6 (1984) (Costa Rica); S. Exec. Rep. No. 98-29, at 5 (1984) (Thailand); S. Exec. Rep. No. 96-18, at 26 (1979) (Turkey); S. Exec. Rep. No. 93-19, at 3 (1973) (Paraguay, Uruguay) ; S. Exec. Rep. No. 91-20, at 3–4 (1970) (New Zealand); see United States v. Stuart , 489 U.S. 353, 366–68 (1989) (“[A ] treaty’s ratification history and its subsequent operation” can “assist . . . in ‘giving effect to the intent of the Treaty parties.’” (quoting Sumitomo Shoji Am., Inc. v. Avagliano , 457 U.S. 176, 185 (1982))). I have not found, and neither Cruz Martinez nor the ma jority has produced, a shred of evidence suggesting that anyone meant to deviate so dr astically from a cons ensus so settled.
The context of this interpretive dispute—language in an extradition treaty—dispenses
with another of Cruz Martinez’s rejoinders: that, in ot her circumstances, the lapse-of-time shorthand can refer not just to st atutes of limitations but also to other doctrines rooted in the passage of time. Take a comment in the Thir d Restatement equating “lapse of time” with a “delay in presentati on” due to “negligence or laches.” Restatement , supra , § 902 cmt. c. Section 902, however, concerns not extradition but country- versus-country disputes involving violations of obligations owed by one to the other. It regulates not the defenses of a person facing
extradition but the defenses of a country accused by another for failing to live up to its word. Id. The section thus does not prove that the phrase “lapse of time” incorporates an individual speedy-trial right in this setting, especia lly when the one pertinent comment from the Restatement indicates that, for extradition pu rposes, the term “lapse of time” extends to limitations periods only. Id. § 476 cmt. e.

Cruz Martinez’s reliance on Doggett v. United States , 505 U.S. 647 (1992), is a figleaf. Doggett holds that, for Sixth Amendment purposes, a government’s failure to seek a defendant’sNo. 14-5860 Cruz Martinez v. United States Page 41

extradition may show that it (as opposed to th e defendant) is “more to blame” for a trial’s delayed start. Id. at 651–53. I of course ag ree that the Sixth Amendmen t contains a speedy-trial clause, that a citizen may invoke the clause in prosecutions in this country, and that the cause for any delay is relevant to this inquiry. But Doggett does not remotely stand for the proposition that, for purposes of treaty interpretation, th e Sixth Amendment qualifies as a law barring prosecution or enforcement “by lapse of time.”
By shearing the phrase “lapse of time” from its context, moreover, Cruz Martinez introduces a serious complication. If “lapse of time” covers the constitutional speedy-trial guarantee, there is no reason to think it would not cover the statutory one. The Speedy Trial Act says that “the trial of a defendant charged . . . with the commission of an offense shall commence within seventy days” of the indictment. 18 U.S.C. § 3161(c)(1). Now that is a time bar. Even though this speedy-trial right—the one Cruz Martinez has not i nvoked—contains a threshold time bar, that seventy days may be extended by “a number of excusable delays that do not
subtract time from the clock.” Id. Examples include time spent on competency examinations, interlocutory appeals, removal proceedings, c onsideration of plea ag reements, continuance requests, and intern ational discovery. See 18 U.S.C. § 3161(h). Many of these procedures have a uniquely American cast, making the statute difficu lt if not impossible to a pply to the actions of a country without them. The statute thus makes time extensions no less important than time
limits . Yet Cruz Martinez’s undifferentiated definition would force us to apply this statute too in future cases, as he acknowledges.
That will leave foreign nations with just se venty days to issue any extradition request
after the Act’s clock starts tick ing in order to avoid debates about whether proper extensions have been given. What happens next will be the kudzu-like spreading of Speedy Trial Act claims and the choking out of statute-of-limita tions claims—and thus the choking out of the one claim that all had agreed was covere d by the phrase “barred by lapse of time.” In case after case, extradition requests that violate no statute of limitations will be denied for Speedy Trial Act
violations.

Take Cruz Martinez’s situati on. The majority correctly find s that the U.S. and Mexican
statutes of limitations have not run. Yet becau se more than seventy days have passed sinceNo. 14-5860 Cruz Martinez v. United States Page 42

Mexico issued an arrest warrant for Cruz Martinez, the Speedy Trial Act would (if applied) prevent his extradition. The same is true of other cases. Consider United States v. Garfias , a case from the Northern District of California that involved another ex tradition request from Mexico. 2009 WL 2580641, at *1. A magistrate judge held that the U.S. statute of limitations did not prevent Garfias’s extradition, id. at *3–5—but the Speedy Trial Act would seem to act as a bar due to the nearly eight-y ear delay between Mexico’s arre st warrant and its extradition request, id. at *1. The list goes on. See, e.g. , Sainez v. Venables , 588 F.3d 713, 715–17 (9th Cir. 2009) (finding that U.S. and Mexican statutes of limitations did not bar an individual’s extradition in a case where there was a seven-year gap between the issuance of a Mexican arrest warrant and the extradition request); In re Flores Ortiz , 2011 WL 3441618, at *1, *6–7 (holding
that Flores Ortiz’s extradition did not violate the U.S. statute of limitations in a case where there was nearly a three-year dela y between the issuan ce of a Mexican arrest warrant and the extradition request); In re Salazar , 2010 WL 2925444, at *4–5 (finding that Salazar’s extradition
did not violate Mexican or U.S. statutes of limitati ons in a case where there was nearly a ten-year delay between the issuance of a Mexican arrest warrant and the extraditi on request). Indeed, after today’s decision, I know of no lapse-of-time cas e in which the most frui tful line of attack will not be the statutory, or for that matter the constitutional, speedy-trial claim.
I am not sure what to make of the majority ’s first response—that the “barred by lapse of time” provision in Article 7 would not apply to stat utory claims because the statute gives district
courts discretion to dismiss w ith or without prejudice and thus the seventy-day limit would not necessarily “bar” the prosecution. 18 U.S.C. § 3162(a)(2); supra at 19. If that theory sounds familiar, it is because it duplicates my theory of the case and my suggestion about how to handle statutory and constitutional speedy-trial claims. Of course, neither speedy-trial right is a “lapse of time” provision that “bars” prosecutions. But if one had to pick one or the other as a candidate, one would assuredly pick the one th at has a definitive time limit—seventy days—and thus parallels statutes of limitations in at least one respect. That the district court has discretion to dismiss some statutory speedy- trial violations without prejudice adds no fuel to the argument at any rate. That means only that the extradit ee will not always prevail; but that was always a possibility given the many exceptions to the statutor y speedy-trial rights. And it is no answer to the constitutional claim, where dismi ssals with prejudice are the rule. United States v. Young ,No. 14-5860 Cruz Martinez v. United States Page 43

657 F.3d 408, 413 (6th Cir. 2011); see also Strunk v. United States , 412 U.S. 434, 439–40 (1973).
I also am not sure what to make of the majo rity’s second response—that, even if Article 7 covers statutory speedy-trial claims, there is no thing to worry about because the statute has many exceptions, including “[a]ny period of delay resulti ng from the absence or unavailability of the
defendant.” Supra at 19 (quoting 18 U.S.C. § 3161(h)(3)(A)). But of course the constitutional claim has many exceptions, including this one. Doggett , 505 U.S. at 651 (To assess a constitutional speedy-trial claim, courts must de termine “whether the government or the criminal defendant is more to blame for th[e] delay.”); Wilson v. Mitchell , 250 F.3d 388, 395 (6th Cir. 2001) (rejecting a constitutional speedy-trial cl aim where the defendant “actively evaded discovery”). I thus see no coherent way to distinguish the two claims —and least of all a way to make the seventy-day claim the one that does not apply. That leaves me where I started. Under the majority’s decision, the central argument, if not the only argument, in future “barred by lapse of time” claims will turn on speedy-trial rights (statutory or constitutional), not statute-oflimitations rights, even though the latter have be en the only claim covered by the phrase—until

now.
The majority adds that, because th e phrase “barred by lapse of time” could be read broadly, it must be read broadly. Not even Cruz Martinez embraces this theory, as he never argues that Factor requires ambiguous treaty pr ovisions to be read in his favor . In fact, neither
of his briefs cites Factor at all, much less distinguishes it. There is a reason for the omission.
Factor , remember, speaks in terms of maximizing the “r ights” the “parties” to a treaty may claim under it. The parties to this tr eaty are countries, not their citizen s, and the right the parties may claim is the right of a countryto demand extradition, not the right of a citizen to demand a speedy trial. The majority’s contrary approac h, which substitutes “extrad itees” for “signatories” and constitutional rights for treaty rights, misapprehends how the Factor presumption works.
My conclusion—that the right conferred by an extradition treaty is the right to request extradition—does not change because the provisi on at issue places limits on extradition. The same was true for the provision in Factor , which permitted extradition “only . . . upon such evidence of criminality as, according to the laws of the place where the fugitive . . . shall beNo. 14-5860 Cruz Martinez v. United States Page 44

found, would justify his apprehension and commitment for trial if the crime . . . had there been
committed.” 290 U.S. at 287 n.1. Gr eat Britain asked the United Stat es to extradite John Factor
for conduct that was criminal on that side of the pond but legal on this side of the pond. To overcome the fact that the applicable treaty did not implement the principle of specialty, Factor
asked the Court to read that restriction into the words “according to the laws of the place where the fugitive . . . shall be found.” If the majority were right, the Court would have construed that provision not to promote extradit ion but to protect the extraditee. It did the opposite. The only “right” the Court mentioned, indeed the only “right ” the Court analyzed, was “the legal right to demand [Factor’s] extradition.” Id. at 287.
The majority also disregards cases from ci rcuits that have remained faithful to what
Factor says. Consider the First Circuit’s opinion in Howard . That case concerned a treaty provision barring extradition when the request was “made with a view to try or punish [the extraditee] on account of his race, religion, nationali ty or political opinions.” 996 F.2d at 1330. The United Kingdom asked the United States to ex tradite Curtis Howard to stand trial for murder. Howard resisted by arguing that these terms included all “nationality-based and racebased biases”—as opposed to “only those [biases] directly affecting” him. Id. at 1329. If the majority were right, the First Circuit should have construed that provision not to promote extradition but to protect the extraditee. Relying on Factor , the First Circuit refused. Any other result, it explained, woul d convert the extraditi on treaty into “an impediment to extradition”— into “a non-extradition treaty” in other words. Id. at 1330.
Nor do the four cases cited by the majority help Cruz Martinez. See supra at 13 n.3 (citing Nielsen v. Johnson , 279 U.S. 47, 52, 57–58 (1929); Jordan v. Tashiro , 278 U.S. 123, 127 (1928); Asakura v. City of Seattle , 265 U.S. 332, 339–40 (1924); Geofroy v. Riggs , 133 U.S. 258, 271–72 (1890)). Each of these cases involved “friendship, commerce, and navigation treaties”
between the United States and anot her country—treaties that were “primarily concerned with the trade and shipping rights of individuals.” Sumitomo Shoji Am., Inc. v. Avagliano , 457 U.S. 176, 185–86 (1982). The Court, no surprise, interp reted ambiguous indivi dual-rights-creating provisions in those treaties with an eye toward maximizing citizen s’ rights. The same cannot be said for an extradition treaty designed to create a right that would not exist in the treaty’sNo. 14-5860 Cruz Martinez v. United States Page 45

absence: the right of a State to demand the “s urrender of a fugitive” living in another State.
Factor , 290 U.S. at 298; see Howard , 996 F.2d at 1329.
That leaves what may be Cruz Martinez’s ulti mate worry: that rejecting his interpretation of the treaty would allow Mexico to seek the ex tradition of an American citizen years after a
valid Mexican arrest warrant has i ssued. Just such a prospect ex ists here, he claims, given his
claim that he never tried to hide his address fromAmerican or Mexican authorities. But it is not this Court’s “province” to expand th e treaty’s scope in search of a seemingly “desirable result.” EEOC v. Abercrombie & Fitch Stores, Inc. , 135 S. Ct. 2028, 2033 (2015). Otherwise, the treaty would mean one thing for some f act patterns and something else for other fact patterns. Treaty interpretation, as opposed to executive-branch discretion, does not turn on shifting f act patterns. Cruz Martinez’s arguments on this score are best directed at the Secretary of State, who retains “sole discretion to determine whether [s omeone] should actually be extradited.” United States v. Kin-Hong , 110 F.3d 103, 109 (1st Cir. 1997); see Extradition Treaty, U.S.-Mex., art. 9(1), supra , 31 U.S.T. at 5065. That discretion would permit any untoward extradition from going forward, including potent ially this one.
Making matters worse, the majority creates the possibility of renewed discovery to determine whether a speedy-trial violation has occurred. Supra at 24–26. If so, the district court will have to wade into the complex world of di plomatic give-and-take, determining whether U.S.
and Mexican communications reve al a justifiable r eason for the delay in Cruz Martinez’s extradition. Prying into consular correspondence is precisely the sort of thing we should avoid unless the treaty expressly requires it. The Stat e Department is better situated to access and assess the sorts of transnational communiques that Cruz Martinez will seek on remand—which is why his requests for relief are better dire cted to our diplomats than to our judges.

* * *
By endorsing Cruz Martinez’s novel reading of the phrase “barred by lapse of time,” the majority has set off on a bold adventure. Its holding contradicts the te xt and context of the treaty. Its reasoning undermines the background pr inciples that have guided extradition in this country for 200 years and counting. And its re sult, unsupported by any relevant precedent, departs from the law of other ci rcuits on not one but two issues.No. 14-5860 Cruz Martinez v. United States Page 46

But that may be the least of its problems. Today’s holding will control all future extradition hearings the magistra te judges in our circuit might c onduct. And should a magistrate refuse to certify someone for extradition on account of that holding, the United States may not be able to appeal that re fusal—though Mexico coul d refile the extraditio n request (which would only make any speedy-trial violation worse ). See In re Mackin , 668 F.2d 122, 126–30 (2d Cir. 1981) (Friendly, J.). As a consequence, savvy f ugitives in the United States facing charges in Mexico (or any other country w ith a “barred by lapse of time” treaty provision) will receive speedy-trial protections if they fl ee to the four States of our circuit but not if they flee to other States in our country. And Mexico will be forc ed to structure its extradition requests around the whims of our judicial geography, to say nothing of our malleable Sixth Amendment jurisprudence.
I respectfully dissent.