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 

_________________ 

AVELINO CRUZ MARTINEZ, 

Petitioner-Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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No. 14-5860 

Appeal from the United States 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 PUBLIC DEFENDER’S OFFICE, Nashville, 

Tennessee, for Appellant. Lynne T. Ingram, 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, Nashville, 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 Cruz Martinez (“Petitioner”) appeals from the 

order of the district court denying his petition for a writ of habeas corpus filed under 28 U.S.C. 

§ 2241. Petitioner is opposing extradition proceedings initiated in June 2013 by the United 

States on behalf of Mexico based on murder charges 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 and 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 basically 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, Samuel Francisco Solano Cruz, died as he was being 

transported to another community for medical treatment. The other victim, Antolín Cruz Reyes, 

died later in the city of Oaxaca. 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 working in this country, with that status, for more 

than fifteen years. Despite his residence in the 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 different 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 wife and brother, on the one side, and the widow 

and parents of one of the shooting victims, Solano 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 agreement 
No. 14-5860 Cruz Martinez v. United States Page 3 

identified Petitioner as the person “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 parties 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 Petitioner 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 January 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 invite 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 they took their seats, the pair was approached by Petitioner. 

According to the cousin’s statement, Petitioner shook hands with Solano Cruz, then, while still 

grasping his hand, drew out a gun, yelled “son of a bitch,” and shot Solano Cruz at close range. 

Cruz Reyes, who was next to Solano Cruz and tried to assist him by putting his arms around him, 

was also hit. A deputy municipal official who was also present at the scene gave a corroborating 

statement, and added that Petitioner fled the scene in his truck, which had Texas plates. Based 

on these statements and the investigation that followed, on February 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 United 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 apartment in Lebanon, Tennessee since April 2006. The 
No. 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 Solano Cruz. Even after 2007, Petitioner’s brother and 

father continued to live in the community and remained 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 the record of when the Mexican government first learned of 

Petitioner’s whereabouts in the United States. No obstacle to discovering his location has been 

identified, and it was common knowledge 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 learning 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—the 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 contacted the Silacayoapan court 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 has 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, 1978, 31 U.S.T. 5059. The note 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, Tennessee and that “[i]t is feared 

that he may move elsewhere and his whereabouts will become unknown.” (R. 2-6, Initial 
No. 14-5860 Cruz Martinez v. United States Page 5 

Extradition Request, PageID 80.) In October 2012, months after Mexico submitted its request 

for Petitioner’s provisional arrest, both the United States and Mexico issued posters identifying 

Petitioner as wanted on murder charges in Mexico. No attempt was made to arrest Petitioner in 

2012. 

 During this period, Petitioner, who had obtained U.S. citizenship in October 2010, was 

working to obtain lawful permanent resident status for his wife and children. In late 2012 or 

early 2013, Petitioner made a number of short trips 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 was finally arrested on June 21, 2013, and Mexico 

delivered its formal extradition 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 the 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 grounds. 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 time” according to the laws of either country, he 

argues that he is not subject to extradition because the U.S. statute 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 Clause of the Sixth Amendment and that his extradition should be 

barred on that basis as well. Third, he argues that 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), when it declined to disclose the 
No. 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 procedural due process rights were violated when he was not granted a 

prompt hearing and judicial review of the purported “urgency” asserted to allow his provisional 

arrest under Article 11 of the 1978 Treaty. We consider 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) (discussing this framework in some 

depth). As this Court has previously explained, 28 U.S.C. § 2241 provides “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 frequently 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 judicial review of a constitutional challenge to a 

certification of extraditability under § 3184). Accordingly, in habeas review of extradition 

proceedings, courts consider defenses to extradition 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 its 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. 1984). Petitioner’s claims, including the two defenses to 

extradition derived from the 1978 Treaty and the 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 ruling on the habeas petition below, we apply de novo

review to questions of law and mixed questions of law and fact, 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 five-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 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 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 the treaty and the context in which 

the written words are used.”); see also Restatement (Third) of Foreign Relations Law of the 

United States (“Restatement”) § 325(1) (1986) (“An international agreement is to be interpreted 

in good faith in accordance with the 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 the 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 statute of limitations has not yet run. If, however, 

his prosecution for the charged murders 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, American 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) (collecting cases). The government argues that Petitioner’s crime 
No. 14-5860 Cruz Martinez v. United States Page 8 

should be analogized to first-degree murder, which is not subject to any limitations period under 

federal law. 18 U.S.C. §§ 1111(a), 3281. Petitioner argues that because he was not charged with 

premeditated murder, the more appropriate analogue is second-degree 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 Treaty. 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 added). This language incorporates the body of 

relevant law in each country. Thus, where a person 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 commission of the offense. 

 Mexico, of course, did not issue an “indictment” or institute 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 the purpose of a civil proceeding such as 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 Mexican 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 indictment 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. Because the Mexican government initiated criminal 
No. 14-5860 Cruz Martinez v. United States Page 9 

proceedings well within the five year period specified 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 extradition 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 treaty 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 interpretation; in both cases, the ordinary 

meaning of the text and the apparent intent of the provision are the touchstones of interpretive 

analysis. See Medellín v. Texas, 552 U.S. 491, 506 (2008) (“The interpretation 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 treaty a meaning consistent with the shared 

expectations of the contracting parties”). 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 interpreted in good faith in accordance with the ordinary 

meaning to be given to its terms in their context 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, May 23, 1969, art. 31(1), 1155 U.N.T.S. 331 (same). 

Applying these principles to the 1978 Treaty, we agree 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 Treaty provides that “[e]xtradition 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 according to the laws of the requesting or requested 
No. 14-5860 Cruz Martinez v. United States Page 10 

Party.” 1978 Treaty, art. 7. Read for its ordinary meaning, this language incorporates those 

bodies of law in either country that protect against untimely criminal prosecution. The Speedy 

Trial Clause of the Sixth Amendment falls cleanly 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 results in prejudice to the defendant, or when it extends over so 

significant a period that prejudice 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 preserved 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. Both bodies of law take into account the timely or 

untimely action of the government, as illustrated 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 introduce additional factors 

into the analysis, the essential 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 against oppressive prosecutorial delay. See United States v. 

Marion, 404 U.S. 307, 320-25 (1971) (discussing the interlocking protection 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 during criminal proceedings. Rather than dropping out of the picture at the 

commencement of the prosecution, the Oaxacan statute of limitations “reset[s] and begin[s] anew[] at the time of the 

reading of the charges at arraignment.” (R. 2-19 at 378.) This effectively secures 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,” much 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 against prejudice arising from a lapse of time 

between the commission of a crime and an indictment or arrest. 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 against prejudice. The particular provisions 

of the Speedy Trial Clause of the Sixth Amendment are available with respect to 

prejudicial delay after formal 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 these 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 has failed to timely pursue their extradition. Doggett, 

505 U.S. at 651-58 (finding speedy trial violation 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 was 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 effort 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-trial 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 constitutional 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 succeeding in his challenge and thereby barring his 

prosecution. See Doggett, 505 U.S. at 651-58 (finding a speedy trial violation in comparable 
No. 14-5860 Cruz Martinez v. United States Page 12 

circumstances). Article 7 incorporates 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 constitutional 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 that the sole relevant purpose here is the 

reciprocal surrender of suspected criminals. Article 7, after all, is plainly designed to serve other 

ends, as it limits extradition rather than enabling it. The apparent “object and purpose” of the 

provision is to provide persons facing extradition the same degree of protection against stale 

prosecution that the laws of the United States or of Mexico would grant in a domestic criminal 

prosecution. See Restatement, § 325(1). The two countries may also quite reasonably have 

sought to incentivize the timely extradition and prosecution of criminals. See Barker v. Wingo, 

407 U.S. 514, 520 (1972) (identifying “a societal interest in providing a speedy trial which exists 

separate from, and at times in opposition to, the interests of the accused”). Construing Article 7 

to incorporate Sixth Amendment protection against post-accusation prosecutorial delay furthers 

these purposes. 

 The context offered by the remainder of the 1978 Treaty confirms the nature of the two 

countries’ endeavor. The treaty contains numerous 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 establish a practice of equitable, reciprocal extradition consistent with 

the laws of the two nations involved. Our interpretation of Article 7 is in accordance with this 

purpose. 

 For all these reasons, one could make an argument 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 justify commitment of the person sought for trial on the 

charge); art. 5 (stating an exception for political and military 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 context of analogous provisions in other treaties, we 

recognize that fair-minded jurists 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 instructed 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 controlling in the interpretation of international 

agreements,” and, in the same vein, that “[i]f a treaty fairly admits of two constructions, one 

restricting the rights which may be claimed under it, and the other enlarging 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 principles direct us to reject a “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 favor of extradition. Other cases relying on the same language favoring broad 

construction of rights granted by a treaty make clear that the rights accorded 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 any 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 individual 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 clause at issue in this case, Factor focused extensively on treaty language 

authorizing extradition for different categories of offenses, which it ultimately found dispositive. The Supreme 

Court rebuffed the petitioner’s attempt to read a limitation into the authorizing language for his offense that the 

conduct must be criminally punishable in both countries—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 person so charged shall be found, would justify his apprehension and commitment for 

trial,” it held that this language was read “naturally to refer 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 “Evidence Required,” contains nearly identical language. See 

1978 Treaty, art. 3 (“Extradition 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 . . . begins with its text,” the Court also relies on 

historical material related to the treaty as “aids to its interpretation” (internal quotation marks 

omitted)); United States v. Stuart, 489 U.S. 353, 366 (1989) (“Nontextual 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 quotation marks omitted)). These sources reinforce 

our conclusion that Article 7 incorporates the Speedy Trial Clause. 

 First, Article 7 uses notably broader language than the corresponding provision in the 

previous extradition treaty with Mexico, suggesting 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.” Extradition Treaty, U.S.-Mexico, 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 language 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 incorporate the constitutional right. 

Id. at 721 (applying a provision incorporating defenses based on the “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 limitations, including the right 

to a speedy trial. 

 Reading the language of Article 7 in light of 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 incorporated by that provision include the protection 

against post-accusation prosecutorial delay 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 untenable. 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. Instead, 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 equating 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 limitation 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 extradition treaty with 

France does contain language comparable to that with Mexico—but its specification about the 

treatment of acts of interruption emphasized by the dissent does nothing to define or limit its 

incorporation of defenses to prosecution 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 model 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 statutes of limitation in footnotes 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 definition). In the cases where the petitioner was 

facing extradition to Canada and Australia, the omission is entirely unsurprising: the treaties at 

issue incorporated only the lapse of time provisions of the countries requesting extradition, so 

U.S. timeliness protections were not at issue 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 passage, the petitioner did in fact raise a Speedy 

Trial claim, though he sought to ground it in more general language granting an extraditee “the 

right to use such remedies and recourses as are provided by” the law of the requested party—a 

position the Ninth Circuit found foreclosed by precedent summarily rejecting a similar argument. 

786 F.2d at 1398 (citing Kamrin, 725 F.2d at 1227-28). In any event, the fact that a particular 

argument was not made in a particular case offers no sound guidance, much less authority, for 

the question before us today. 

 Similarly, the unpublished district court opinions cited by the dissent are neither 

authoritative nor persuasive. Lacking direct authority on whether 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 incorporated 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. There, the Eleventh Circuit relied 

on the same definition-by-proximity method of reasoning as the dissent to conclude that the 

phrase “lapse of time” referred primarily, 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 statutes of limitation under various formulations of “lapse of time” 

protections against extradition. Id. at 1567 (citing Restatement § 476, comment (e)). That 

comment, however, does not purport to restrict the term “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, international tribunals have barred claims because 

of a delay in presentation 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 course, § 902 addresses interstate claims 

and remedies rather than extradition; nonetheless, it demonstrates that the phrase “lapse of time” 

may easily be used in connection with 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 substantive 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 contending that lapse of time should be deemed to bar the 

Government from instituting this proceeding, the petitioner argues that the doctrine of 
No. 14-5860 Cruz Martinez v. United States Page 18 

laches should be applied to denaturalization proceedings, 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 reference 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 with 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 thirty years after initial use 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 proper 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 other courts’ holding that “the lapse of time affects the quantum of 

required proof as well as the good faith and credibility 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, does it require a new promise or its equivalent to 

revive it.” (internal quotation marks omitted)). 

Finally, and of course most relevantly 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 the 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 complain of a lapse of time attributable 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 when 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 Clause 
No. 14-5860 Cruz Martinez v. United States Page 19 

guarantees to a criminal defendant [] that the Government will move with the dispatch which is 

appropriate to assure him an early and proper disposition 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 lapse of time they were prejudiced in making their 

defense”); see also Burns v. Lafler, 328 F. Supp. 2d 711, 719 (E.D. Mich. 2004) (“To prosecute a 

defendant following an investigative 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 dissent’s hyperbolic statement that “[t]oday’s 

decision brings more than two centuries of settled understanding to an end.” Dissent at 29. The 

issue can hardly be considered “settled” with only one appellate decision directly on point (Yapp 

v. Reno), a decision that we believe was wrongly decided 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 breadth of Article 7, the dissent next suggests that our 

interpretation would incorporate the Speedy Trial Act and professes concern that its provisions 

would be difficult to apply in extradition proceedings. This concern is misplaced because Article 

7 does not incorporate the statutory right—the dissent’s mischaracterization of our opinion 

notwithstanding. In contrast to the constitutional right, violations 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 with prejudice to the discretion of the district 

court). The discretionary remedy provided by statute is inconsistent with the language of Article 

7, which incorporates mandatory bars to prosecution. And even assuming arguendo that the 

statute somehow did fall within Article 7, it contains 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 requires a narrow interpretation of Article 7, but it 

fundamentally misunderstands the nature of the comity 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 principle, known as the rule of non-inquiry, bars 

courts “‘from evaluating the fairness and humaneness of another country’s criminal justice 

system, requiring deference to the Executive 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 extradition treaty to assume that the trial will be 

fair.”). Comity principles cannot broaden the authority to extradite beyond the terms of the 

treaty. Tucker, 183 U.S. at 436. 

 Although courts do not inquire into the fairness of criminal procedure or punishment 

under the laws of the country seeking extradition, it is plainly a court’s role to determine whether 

extradition is permissible under the 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 the 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 granted 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 Branch to play a necessary role in maintaining th[e] 

delicate balance of governance, serving as an important judicial check on the Executive’s 

discretion in the realm 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 the 
No. 14-5860 Cruz Martinez v. United States Page 21 

 It is fundamental that “[t]here is no executive discretion to surrender [an individual] to a 

foreign government, unless that discretion is granted by law”—in this case, by the terms of the 

1978 Treaty. Valentine, 299 U.S. at 9. Article 7 states a mandatory rule that extradition shall be 

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 jurisdiction 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 crime does not qualify under the treaty, because the 

requesting party has not established 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 that extradition decisions leave the losing party 

without recourse. But that proposition 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 requesting 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 settled 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 question 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 will 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 circuit split are nothing unusual. 

The complications are instead a routine consequence 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 United 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 before 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 “reasonable diligence” in seeking to bring an 

accused to justice, a speedy trial claim will generally fail “as a matter of course however great 

the delay, so long as [the defendant] could not show specific prejudice to his defense.” Doggett, 

505 U.S. at 656. “[O]fficial bad faith in causing 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 trial,” 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 Petitioner has a speedy trial claim that is at least 

facially viable. More than six years elapsed between the alleged shooting on December 31, 2005 

and Mexico’s informal request for his extradition in May 2012, and another year and three 

months passed before Mexico formalized its extradition request with the delivery of a complete 

packet in August 2013. The Supreme Court has held 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 Mexico without any knowledge that he was charged with a crime, and 
No. 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 district 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 diligently sought Petitioner during the period that he was 

living in the United States. Remand is therefore necessary. The government argues to this Court 

that it would be infeasible or improper to conduct the fact-finding necessary to adjudicate a 

speedy trial claim. Resp.’s Br. at 39. Yet, the administrative challenges 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 the 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 diligence will nearly always 

defeat a speedy trial claim “however 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 considering claims that the 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 necessary 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 extradition is not sufficient to fulfill the requirements of 

[the] Treaty,” and therefore provides that in such cases the requested country “shall request the 

presentation of the necessary evidence.” 1978 Treaty, art. 12. It is worth noting 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 evidence as may be offered by the parties. 

III. Petitioner’s Brady Rights 

Petitioner also raises a constitutional due process claim against the U.S. government 

under Brady v. Maryland, 373 U.S. 83 (1963), arguing that he was entitled to disclosure of U.S. 

consular records related to the 2009 communications 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 denaturalization or extradition based on proof of 

alleged criminal activities of the party proceeded against.” As the Supreme Court has 

recognized, “Brady claims have ranked within the traditional 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 withholds 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 probability 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 defendant to assert his constitutional 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 trial 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 Fourth 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 whether the defendant’s confession should have been 

suppressed). The district court’s ruling that the government was not required to disclose the 

documents related to the 2009 communications between 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. Petitioner is entitled to receive evidence in the 
No. 14-5860 Cruz Martinez v. United States Page 25 

government’s possession that is material to his Article 7 defense to extradition based on the 

Speedy Trial Clause. 

 Nor is this outcome anomalous, 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 process 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 subject 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 Cir. 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 treaty obligation of the United States government 

cannot override an individual constitutional right”). Just as the government does not have the 

discretion to surrender an individual to a foreign government without 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 within its possession, Demjanjuk, 

10 F.3d at 354. 

 Here, Petitioner seeks only documents already 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 turning over the materials in its possession to 

petitioner” and, naturally, “[i]tems that may be in the possession of Canada must be sought in a 

Canadian forum”). It seems likely, to say the least, 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 the delivery of the full extradition packet—will be 

material to Petitioner’s speedy trial claim. If the documents are in fact material and favorable to 

the accused, the government must disclose them. On remand, the district court should conduct 
No. 14-5860 Cruz Martinez v. United States Page 26 

appropriate proceedings to ensure that the government’s constitutional obligations in this regard 

are met.7 

IV. Procedural Due Process Claim 

 Finally, Petitioner asserts a constitutional claim 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 purported “urgency” asserted to allow his arrest under Article 11 of the 

1978 Treaty. Article 11 authorizes the provisional arrest of a suspect 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 extradition packet within sixty days of when the 

individual is taken into custody; if it fails to do so, “[t]he provisional arrest shall be terminated.” 

Id. 

 Petitioner first argued that there was no legitimate urgency to justify reliance on this 

procedure within days of being taken into custody, yet he was unable to receive a ruling on the 

issue during the sixty-day period. (M.R. 33, Detention 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 within the allotted time, and the magistrate 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, Petitioner asserts, was in violation of his procedural due process 

rights under the U.S. Constitution. 

 While we are not unsympathetic to Petitioner’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 controversy’ 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 not 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 jurisdiction only if two requirements are met: “‘(1) the 

challenged action was in its duration too short to be fully litigated 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 anticipating 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 these charges under the authority of Article 11. Cf. 

Caltagirone v. Grant, 629 F.2d 739, 750 (2d Cir. 1980) (holding that the legality 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 AND DISSENTING IN PART

______________________________________________________ 

SUTTON, Circuit Judge, concurring in part and 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 fugitive 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 country for prosecution. The point of 

extradition treaties is to prevent such crimes from going unpunished by imposing a golden rule 

obligation on each party to the treaty—an agreement 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 petition, 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 requested Party.” Extradition Treaty, U.S.-Mex., art. 7, May 4, 1978, 

31 U.S.T. 5059. In particular, he argues that his extradition would violate (1) the relevant statute 

of limitations and (2) his Sixth Amendment right to a speedy trial. 

I agree with the majority—and everyone else who has considered the matter—that this 

provision covers statute-of-limitation 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 extradition treaty in 

1794. It has since concluded hundreds more, many of which include the phrase “barred by lapse 
No. 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 words or not—to extend the Sixth 

Amendment’s speedy-trial right to someone facing extradition. Indeed, virtually all of the 

relevant “lapse of time” cases do not even include a speedy-trial claim. Today’s decision brings 

more than two centuries of settled understanding 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 does not have and in the process made 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 fixed statute-of-limitations claims. Because every 

interpretive tool confirms that the phrase “barred by lapse of time” does not incorporate the 

constitutional speedy-trial right into this treaty, Cruz Martinez may not invoke that right to avoid 

standing trial in Mexico for a crime he agrees there is probable cause he committed. The 

majority seeing things differently, I respectfully dissent. 

A. 

Text. “Extradition shall not be granted,” Article 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 the 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 quotation marks omitted). 

The Sixth Amendment imposes not a fixed “time period” but a “relative,” “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 require 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 defendant 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 speedy-trial violation. Yet Article 7 covers only lapse-of-time 

failings in a prosecution. It does not cover doctrines that bar prosecution 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 inquiry always requires an absence of justification at a minimum 

for the delay. Because the treaty provision creates a lapse-of-time bar alone and because no 

precedent says that delay alone establishes a speedy-trial violation under the Sixth Amendment, 

the provision does not apply. 

Another textual clue points in the same direction. 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 would be sought. That 

language also naturally applies to limitations periods that “bar[]” “penalt[ies]” already handed 

down from being “enforce[d]” to the extent any exist. The same is not true for guarantees that 

apply after an indictment (or its equivalent) through the end of trial. Just as this treaty provision 

would not cover criminal procedure guarantees that apply to a trial already begun, it does not 

naturally apply to speedy-trial requirements that prohibit the criminal process, once started, from 

continuing. The speedy-trial right after all 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 execution of sentences already pronounced, see United States v. Melody, 

863 F.2d 499, 505 (7th Cir. 1988). These 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 reinforce 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 lapse 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 limitations, not a speedy-trial 

right as well. As Cruz Martinez acknowledges, a “time-bar provision” would apply only “to the 

operation of statutes of limitations.” 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 against implying personal rights in international 

treaties”). Those principles come to the same end. No extant case, treaty, or commentary 

endorses the notion that, for extradition purposes, the phrase “barred by lapse of time” refers to a 

speedy-trial guarantee on top of the limitations periods that fall naturally within its grasp. 

Treaties no less than statutes must be construed against the backdrop of long-settled usage. 

Courts have no license to depart from that long history. 

Similar provisions in similar treaties ratified by the United States associate this phrase 

with limitations periods only. Take our treaty with Argentina, which equates “lapse of time” 

with the expiration of a “statute of limitations.” Extradition Treaty, U.S.-Arg., art. 7, June 10, 

1997, T.I.A.S. No. 12,866. Or take our treaty with 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 “period of prescription” as 

“[t]he period fixed by local law as sufficient for obtaining or extinguishing a right through lapse 

of time. In addition to a fixed number of years, the period includes whatever further time is 
No. 14-5860 Cruz Martinez v. United States Page 32 

allowed by local law because of infancy, insanity, coverture, and other like circumstances.”). Or 

take our six treaties with the six countries of the 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 Treaties with Organization of Eastern Caribbean 

States, S. Treaty Doc. No. 105-19, at 11, 33, 55, 77, 98, 120 (1997). When transmitting those 

treaties to the Senate for its advice and consent, the President described their six identical lapseof-time provisions as “enabl[ing] extradition requests to be granted irrespective of statutes of 

limitations” in any State. Id. at vii. None of these clauses demonstrates any desire to incorporate 

the Sixth Amendment into the words “barred by lapse of time.” 

Before ratification of this treaty, the same phrase notably had long held a similar meaning 

in American law—in the context of state laws applying out-of-state statutes of limitations to outof-state causes of action. Consider the Minnesota 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). The 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 Minnesota 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 fact that for over a century, the term ‘lapse of 

time’ has been commonly associated with a statute of limitations violation. . . . Thus, we hold 

that the ‘lapse of time’ provision in [the U.S.-Bahamas] Extradition Treaty refers to the running 

of a statute of limitations and not to a defendant’s Sixth Amendment right to a speedy trial.” 

Yapp v. Reno, 26 F.3d 1562, 1567–68 (11th Cir. 1994). A district 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 Flores 
No. 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 the most credible form of disagreement. 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 not squarely address the issue is because not one 

of the defendants thought the point was worth their time—and thus did not even argue that the 

phrase “lapse of time” included 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 Cir. 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 Ninth 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, the 
No. 14-5860 Cruz Martinez v. United States Page 34 

laws of the requesting party included speedy-trial-like protections. See Canadian Charter of 

Rights and Freedoms § 11(b) (“Any person charged with an offence has the right . . . to be tried 

within a reasonable time.”); Jago v. District Court (1989) 168 CLR 23 (Austl.) (declining to 

recognize a “special right to a speedy trial” but acknowledging that 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 claim 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 rejected the notion, concluding that “the right to a speedy trial 

simply ha[s] no application in international extradition 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 International Extradition, 90 Neb. L. Rev. 752, 783 (2012). 

Nor is this discussion a modern invention. A nineteenth-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 and 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 “provid[ing] that acts of interruption in the requesting 

State should be recognized in the requested State.” 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 that “[d]omestic legal frameworks governing lapse of 
No. 14-5860 Cruz Martinez v. United States Page 35 

time often vary widely, with various formulae for calculating the expiration of the 

statutory period.” Revised Manuals on the Model Treaty on Extradition and on the Model 

Treaty on Mutual Assistance 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 countries, and the right the treaty creates is the right 

of one country to demand the extradition of fugitives in the other 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 Circuit 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 treaty 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 considerations that lurk beneath the surface of all 

extradition cases. Courts must take care to avoid “supervising the integrity of the judicial system 

of another sovereign nation” because doing so would “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 sovereignty of other countries explains why an 

American citizen who “commits a crime in a foreign country . . . cannot complain 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 explains why “[w]e are bound by the 

existence of an extradition treaty to assume that the trial [that occurs after extradition is granted] 

will be fair.” Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (Holmes, J.). These constraints 
No. 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 the conduct of our international relations,” Romero v. Int’l 

Terminal Operating Co., 358 U.S. 354, 383 (1959), unless the treaty demands it. Just recently, 

the Supreme Court reminded Congress to tread carefully before entangling itself in American 

foreign policies customarily overseen 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 affirmatively disserve them. Because the 

constitutional speedy-trial right has 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 know how much delay is too much delay. Take the alleged delay in Cruz 

Martinez’s case: around six years. That is not enough 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 the 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 countries wanted them as umpires. 

In the final analysis, Cruz Martinez’s argument comes up short. No matter where I 

look—to the text of this treaty, to the text of other treaties, to judicial decisions interpreting those 

treaties, to commentaries explaining those treaties, to guidance explaining 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 something 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 interpreting 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 all of 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,” “lapse in time,” “passage of time,” and so on. 

Cruz Martinez recognizes as much when he concedes 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 old 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 traction in claiming that it suddenly extends to speedy-trial rights. Is 

it really possible, as the majority seems to think, 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 the contrary, the new phrase somehow some way 

covered more ground than the old phrase, Cruz Martinez 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 constitutional speedy-trial right 
No. 14-5860 Cruz Martinez v. United States Page 38 

does not have a fixed time limit, in contrast to 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 appeared in the context of 

several other doctrines with a temporal component: 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, meaning time and other considerations together do 

the “barring.” Not so with this clause. 

And that is why it makes no difference that the 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 important 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 headlamp. One is of no use 

without the other. So too of text without context. Not a single extant source of authority in this

context—the language of an international extradition treaty—equates “barred by lapse of time” 

with “barred by the Sixth Amendment.” 

One court at one point, I must acknowledge, agreed with Cruz Martinez’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” applied to speedy-trial violations, 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 court’s half-sentence ruling. Martin v. Warden, 993 F.2d 824, 829 n.8 

(11th Cir. 1993). That just one court in history 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 explained that a hypothetical treaty provision 
No. 14-5860 Cruz Martinez v. United States Page 39 

referring only to “lapse of time” would refer “only to statutes of limitation[s].” Id. at 1570. It is 

not often that all relevant 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 “enforcement 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-minded jurists could dispute th[e] conclusion.” Id. at 

13. Be that as it may, the point is wrong. In many civil-law countries, statutes of limitations bar 

not only the initiation of prosecutions but also excessive delays 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 crime occurred—provides as much. “The statute of limitations,” 

it says, “shall be interrupted, and consequently, the established periods shall be reset and shall 

begin anew, at the time of the reading 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 majority’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 the 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 trial court’s decision but then used different—and 

narrower—language. The treaty’s drafting history confirms as much. Its transmittal materials 

do not mention the Sixth Amendment once, an omission that takes on special significance in 

light of the Senate Committee on Foreign Relations’ decision to include a list of differences 
No. 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 period as the U.S.-Mexico Treaty confirm that 

Mylonas was not on anyone’s radar. At least seven 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” referred to statutes of limitations. S. Exec. Rep. 

No. 98-33, at 4–5 (1984) (Italy); S. Exec. Rep. No. 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 majority has produced, a shred of evidence 

suggesting that anyone meant to deviate so drastically from a consensus so settled. 

The context of this interpretive dispute—language in an extradition treaty—dispenses 

with another of Cruz Martinez’s rejoinders: that, in other circumstances, the lapse-of-time 

shorthand can refer not just to statutes of limitations but also to other doctrines rooted in the 

passage of time. Take a comment in the Third Restatement equating “lapse of time” with a 

“delay in presentation” 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, especially when the one pertinent comment from the 

Restatement indicates that, for extradition purposes, 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’s 
No. 14-5860 Cruz Martinez v. United States Page 41 

extradition may show that it (as opposed to the defendant) is “more to blame” for a trial’s 

delayed start. Id. at 651–53. I of course agree that the Sixth Amendment 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, the 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 invoked—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, consideration of plea agreements, continuance 

requests, and international discovery. See 18 U.S.C. § 3161(h). Many of these procedures have 

a uniquely American cast, making the statute difficult if not impossible to apply 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 seventy days to issue any extradition request 

after the Act’s clock starts ticking 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-limitations claims—and thus the choking out of the one 

claim that all had agreed was covered 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 situation. The majority correctly finds that the U.S. and Mexican 

statutes of limitations have not run. Yet because more than seventy days have passed since 
No. 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 extradition 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-year delay between Mexico’s arrest 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 delay between the issuance 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 limitations in a case where there was nearly a ten-year 

delay between the issuance of a Mexican arrest warrant and the extradition request). Indeed, 

after today’s decision, I know of no lapse-of-time case in which the most fruitful 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 statutory claims because the statute gives district 

courts discretion to dismiss with 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 that 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 extraditee will not always prevail; but that was always a 

possibility given the many exceptions to the statutory speedy-trial rights. And it is no answer to 

the constitutional claim, where dismissals 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 majority’s second response—that, even if Article 7 

covers statutory speedy-trial claims, there is nothing to worry about because the statute has many 

exceptions, including “[a]ny period of delay resulting 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 determine “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 claim 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 been the only claim covered by the phrase—until 

now. 

The majority adds that, because the 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 provisions 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 “rights” the “parties” to a treaty may claim 

under it. The parties to this treaty are countries, not their citizens, and the right the parties may 

claim is the right of a country to demand extradition, not the right of a citizen to demand a 

speedy trial. The majority’s contrary approach, which substitutes “extraditees” 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 provision 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 be 
No. 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. Great Britain asked the United States 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 extradition 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 circuits 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, nationality or political opinions.” 996 F.2d at 1330. 

The United Kingdom asked the United States to extradite 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, would convert the extradition 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 another 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, interpreted ambiguous individual-rights-creating 

provisions in those treaties with an eye toward maximizing citizens’ rights. The same cannot be 

said for an extradition treaty designed to create a right that would not exist in the treaty’s 
No. 14-5860 Cruz Martinez v. United States Page 45 

absence: the right of a State to demand the “surrender 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 ultimate worry: that rejecting his interpretation 

of the treaty would allow Mexico to seek the extradition of an American citizen years after a 

valid Mexican arrest warrant has issued. Just such a prospect exists here, he claims, given his 

claim that he never tried to hide his address from American or Mexican authorities. But it is not 

this Court’s “province” to expand the 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 fact patterns and something else for other fact patterns. Treaty 

interpretation, as opposed to executive-branch discretion, does not turn on shifting fact patterns. 

Cruz Martinez’s arguments on this score are best directed at the Secretary of State, who retains 

“sole discretion to determine whether [someone] 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 potentially 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 diplomatic give-and-take, determining whether U.S. 

and Mexican communications reveal a justifiable reason 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 State 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 directed 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 text and context of the 

treaty. Its reasoning undermines the background principles that have guided extradition in this 

country for 200 years and counting. And its result, unsupported by any relevant precedent, 

departs from the law of other circuits 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 magistrate judges in our circuit might conduct. 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 refusal—though Mexico could refile the extradition 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 fugitives in the United States facing charges in 

Mexico (or any other country with a “barred by lapse of time” treaty provision) will receive 

speedy-trial protections if they flee to the four States of our circuit but not if they flee to other 

States in our country. And Mexico will be forced to structure its extradition requests around the 

whims of our judicial geography, to say nothing of our malleable Sixth Amendment 

jurisprudence. 

I respectfully dissent.